The ‘Six-Pack’ is a package of six legislative measures (five regulations and one directive) improving the Economic governance in the EU. The Commission made the original proposals in September 2010. After negotiations between the Council and the European Parliament, the package was adopted in November 2011 and entered into force on December 13, 2011. Part of the ‘Six-Pack’ measures applies only to the Eurozone member states (see the individual titles below).
The ‘Six-Pack’ measures reinforce the Stability and Growth Pact (SGP), among others by introducing a new Macroeconomic Imbalances Procedure, new sanctions (for Eurozone member states) and reversed qualified majority voting. Also, there is more attention for the debt-criterion.
What positions did Spain adopt in the negotiation of the ‘Six-Pack’, in particular in relation to the implications of the ‘Six-Pack’ for (budgetary) sovereignty, constitutional law, socio-economic fundamental rights, and the budgetary process?
Although the ‘Six Pack’ entered into force on 13 December 2011, discussions regarding the reform of the Stability and Growth Pact started around a year earlier in the Council. On 27 October 2010 the Secretary of State for the European Union (López Garrido) appeared before the Parliamentary Commission for the EU in order to explain the Government’s position vis-à-vis the upcoming European Council meeting. At this meeting he announced that the “task force” under the coordination of Van Rompuy was about to present a report on economic governance. After examining this report, stronger fiscal discipline and closer coordination of economic policies would follow.
López Garrido then expressed the German preference for automatic sanctioning in case of non-compliance with the Stability and Growth Pact as opposed to France, who preferred to make it conditional to a decision by the Council. The Spanish Government did not position itself clearly along one line or another. However, López Garrido was blunt regarding the consequences of non-compliance with the Stability and Growth Pact: the Government was against the suspension of voting rights as it would imply a reform of the Treaties and a violation of the national sovereignty of the Member States. Sabaté Borrás (from Entesa Catalana de Progrés) agreed with the Government and prompted to undertake the reforms as soon as possible. Casa i Bedós from Convergencia i Unió added that these reforms should have been made long ago, and that he hoped once made the markets would recover their trust. Becerril Bustamante (from Partido Popular) also agreed with the strengthening of fiscal discipline, but remarked that everybody had to be aware of the enormous budgetary efforts that would be demanded from Spain in the upcoming months in order to comply with these objectives.
On 9 December 2010, the same Parliamentary Commission discussed the precise instruments conforming the Six Pack. The discussions focused particularly in determining whether the Regulations respected the subsidiarity and proportionality principles. The EU Parliamentary Commission was unanimous in stating the appropriateness of the measures. Moscoso del Prado Hernández from Partido Socialista stated: “We are all aware that the advance in the economic component of the monetary and economic union is a key element for ensuring a proper stabilisation of the European economy, a way out of the crisis and the put into practice of the economic policies necessary for reforming the growth model”. Some days later, on 22 December 2010, the President of the Government appeared before the Congress in order to inform on the European Council meeting of 16-17 December 2010. President Zapatero informed on the advances that were taking place in terms of economic coordination and fiscal discipline. All the major political parties supported the conclusions of the European Council, with Mariano Rajoy from Partido Popular celebrating that fiscal discipline would again be applied after the Spanish government had neglected it for so long. On the other side of the spectrum, Ridao i Martín from Esquerra Republicana expressed his concerns regarding the recipes of adjustment coming from the EU, which were source of social unrest and followed the will of the markets. He also remarked the transfer of sovereignty “in favour of the euro without a real European economic governance, which results in capital doing his own thing”.
Council Directive 2011/85/EU of 8 November 2011 on requirements for budgetary frameworks of the Member States
What measures are being taken to implement Directive 2011/85/EU on requirements for budgetary frameworks (required before 31 December 2013, article 15 Directive 2011/85/EU)?
Directive 2011/85 entered into force in December 2011, a month after Mariano Rajoy’s Partido Popular had won the general elections. The implementing measures were thus taken under Rajoy’s centre-right mandate. Below is a list of the different instruments fulfilling the duties of Directive 2011/85, followed by a detailed account about the manner in which the chapters Directive have been translated into Spanish legislation:
– Organic Law 2/2012 on Budgetary Stability and Financial Sustainability: This has been the main legal instrument for implementing Directive 2011/85. The Organic Law 2/2012 entered into force in May 2012, derogating the previous Law on Budgetary Stability of 2001. Its preamble declares that the main objective of the law is to recover the route to budgetary stability and the compliance with the commitments of Spain to the EU. The main novelties of the Organic Law 2/2012 have been the increase of surveillance mechanisms for all levels of government (namely through the creation of the Independent Authority for Fiscal Responsibility), more detailed corrective measures in case of non-compliance with the budgetary objectives, the introduction of strict sanctions if non-compliance persists (including the appropriation of the regional taxation competences by the central government) and the establishment of a bail-out system for those regions in need of financial assistance.
– Ministerial Order HAP/2105/2012 developing the obligation of providing information foreseen in the Organic Law 2/2012 on Budgetary Stability: Passed on 1 October 2012, this Ministerial Order detailed the frequency at which the sub-sectors of government had to submit economic and financial information to the central government (regions submit monthly reports on the state of their budget and their capacity or need of funding, whereas the local administrations do so every three months).
– Royal Decree-law 636/2014 establishing the Central of Economic and Financial Information of the Public Administrations and regulating the information by the Bank of Spain and the financial entities to the Ministry of Finance: This Royal-Decree law was passed on 25 July 2014, and it created a centralised institution for the coordination and publicising of the relevant economic and financial information of all the public administrations (including regional and local governments), as well for ensuring the homogeneity of the methodologies used in the elaboration of all these data.
– Organic Law 6/2013 creating an Independent Authority for Fiscal Responsibility: Passed on November 2013, this Law implemented the obligation of Directive 2011/85 to have an independent fiscal council with functional autonomy from the executive. The competences of the Independent Authority are mainly consultative, as it issues prescriptive reports on issues like the general lines of the central and regional budgets or the annual Stability Programme, but these reports are not binding (see Question VII.4).
– Royal Decree-law 21/2012 on measures of liquidity of the Public Administrations and on the financial sector: Passed on July 2012, this Decree-law establishes a mechanism of financial assistance to those regions in need of liquidity that request it. The Fund of Regional Liquidity (“Fondo de Liquidez Autonómica”) was initially set for 18.000 million euro coming from state bonds. As in the EU, access to credit entails strict conditionality for the regions, and was subject to interest rates of 5,65% in 2012 and 5,5% in 2013.
– Royal Decree-law 515/2013 regulating the criteria and the procedure to determine and demand the responsibilities for breach of EU Law: Passed on July 2013, this Decree-law regulates the mechanism by which every public administration (including regional and local governments) can be requested pecuniary responsibility to compensate the damages that Spain suffers as a consequence of being condemned for breach of EU Law. Before this Decree-law, the legislation on the matter was dispersed and focused on the consequences for mismanagement of EU funds. The Additional Disposition no. 1 explicitly states that if Spain is subject to an excessive deficit procedure, the different administrations that contributed towards this deficit will be made responsible according to the provisions of the Decree-law.
– Organic Law 9/2013 on the control of commercial debt in the public sector: Passed on December 2013, this law aims to ensure compliance with the Stability and Growth Pact by means of controlling the commercial debt of the administration (meaning the debt contracted with private contractors and suppliers). The Organic Law 9/2013 establishes that Public Administrations must pay their providers within the limits imposed by the Law of Defaulting. In addition, every administration must publish its average payment time and must also include its commercial debt within the spending limits settled by the Organic Law 2/2012 on Budgetary Stability.
– Law 19/2013 on transparency, access to public information and good governance: Passed on December 2013, this law particular emphasis is put on the duty for all levels of government to facilitate budgetary, statistical and financial information as well as “their degree of compliance with the objectives of budgetary stability and financial sustainability of the Public Administrations” (Article 8, my own translation). The Law on Transparency also complements the disciplinary regime of the Organic Law 2/2012 on Budgetary Stability: pursuant Article 30, if a Public Administration commits to carry out expenditures without sufficient credit for it or does not use the budget surpluses for the compensation of public debt, the sanctions include the dismissal of the person responsible and the obligation to compensate the Public Treasury.
The Spanish regions have been called to implement similar duties to those contained in the Law 19/2013 on Transparency. Galicia, Balearic Islands, Navarra and Extremadura already had the relevant legislation in force; the rest of the regions are in the process of passing their own Laws on Transparency.
– Law 27/2013 on the rationalisation and sustainability of the Local Administration: Passed on December 2013, this law sought the application of the principle of budgetary stability to the local government sub-sectors. This Law makes the autonomy of the local government conditional to the legislation on budgetary stability and financial sustainability. Budgetary stability must be one of the aims of the coordination between the different local administrations, and must be taken into account in the assessment of the public services provided by the local government. Other mechanisms for the rationalisation of local finances include limits on the personnel employed at the local governments and their salaries. The Law 27/2013 has meant the amendment of the Law 7/1985 regulating the Basis of the Local Regime. 
Below is a detailed account on the manner in which Directive 2011/85/EU is implemented within the Spanish legal framework:
Accounting and statistics (Chapter II of Directive2011/85)
Article 6 of the Organic Law 2/2012on Budgetary Stability sets the duty for all Public Administrations to present accounts with enough and sufficient information in order to assess their actual financial situation. Moreover, pursuant Article 27 the different Administrations will facilitate the data needed to equate their budgets to the ESA 95 standard, “given that this is the information forwarded to Europe in order to verify the compliance with budgetary commitments”. Article 7 makes the Ministry of Finance responsible for the publicising of the financial and economic information of the different public administrations.
Article 3(2) of Directive 2011/85 detailed specific frequencies at which the different levels of government must publish cash-based fiscal data. This publicising of fiscal data, foreseen in Article 28 of the Organic Law 2/2012 on Budgetary Stability, has been developed by the “Ministerial Order HAP/2105/2012 on the obligations of supply of information foreseen in the Organic Law 2/2012”. The Ordersets the duty for the regions to forward monthly reports to the Central Government on the state of their budget and their eventual need or capacity of funding (Article 14). The regions must also forward yearly (i) reports on their forecasts of indebtedness before 31 March “according to the rules of the Protocol on Excessive Deficit” (Article 13, own translation), (ii) reports on their spending limits for the following year before 31 August, and (iii) the general lines of their budget for the following year in agreement with the European legislation before 31 October. Local governments are to forward yearly reports on their expected spending and budget lines (Article 15). Information on the state of their budget and their need or capacity of funding is to be provided every 3 months.
The economic and financial information of the different public sectors is coordinated and published by the “Central Unit of Economic and Financial Information of the Public Administrations”, created by the Royal Decree 636/2014 of 25 July. The management of the Central Unit is ascribed to the Ministry of Finance. Likewise, the economic and financial information in question is published on the website of the same Ministry.
Forecasts (Chapter III of Directive2011/85)
Article 15 of the Organic Law 2/2012on Budgetary Stability establishes that objectives of budgetary stability and public debt shall be based on the economic situation that is forecasted within the different time frames to which these objectives would apply. The article further details that these forecasts shall comprise, among other variables, the forecast of GDP growth, output gap, the output growth reference rate and the cyclical deficit. These provisions on macroeconomic forecasts already existed in very similar terms in the Law on Budgetary Stability of 2001 as amended in 2006; however, the Organic Law 2/2012 on Budgetary Stability foresees for the first time the inclusion of cyclical deficit in the calculations, not only of all the public Administrations together but also distributed among the different subsectors.
Numerical Fiscal Rules (Chapter IV of Directive2011/85)
Although limits on public deficit and debt existed since 2001, they were not deemed sufficient by the Spanish government for ensuring the effective compliance demanded by Directive 2011/85. The measures taken by Spain so as to ensure compliance with numerical fiscal rules included legislation in the following areas:
· Debt, Deficit and Spending: The Organic Law 2/2012 on Budgetary Stability develops the principle of budgetary stability introduced in the amended Article 135 of the Spanish Constitution. As with the constitutional amendment, the provisions of the Law on Budgetary Stability will enter into full force in 2020 (in the meantime, other transitory provisions are foreseen so as to reach these budgetary commitments).
The Organic Law 2/2012 precludes the Public Administrations from entering into structural deficit except in the situations strictly delimited by Article 11: natural disasters, serious economic recession or situations of emergency that escape the control of the Public Administrations. The Organic Law 2/2012 also limits the levels of debt of the Administrations, set at 60% of GDP and details what percentage corresponds to each level of governance: 44% for the Central Administration, 13% for all the regions and 3% for the local authorities (Article 13).In addition, the Law reproduces the Rule of Spending already introduced by Zapatero, which limits the expenditure of public administrations in relation with GDP growth (see Question VI.2). However, and very importantly, this time all the limits over debt, deficit and spending are also imposed on the Regions (Comunidades Autónomas). This has raised doubts as to the constitutionality of the Law under the understanding that it affects the competences reserved to the Regions(see Question VII.2).
In order to allow unforeseen and indispensable expenses while respecting budgetary stability, the Organic Law 2/2012 on Budgetary Stability regulates the creation of “contingency funds” whose amount will be set by each administration. A contingency fund for the central government has existed since 2003, but the Organic Law 2/2012 extends the creation of contingency funds to regional and local governments.
· Commercial debt: In order to ensure the sustainability of public finances, indebtedness of the public administration vis-à-vis its suppliers (“commercial debt”) is also regulated and limited through the Organic Law 9/2013 on the control of commercial debt in the public sector. This Law establishes that Public Administrations must pay their providers within the limits imposed by the Law of Defaulting. In addition, every administration must publish its average payment time and must also include its commercial debt within the spending limits settled by the Organic Law 2/2012 on Budgetary Stability.
· Surveillance: In compliance with Article 6(1) (b) of Directive 85/2011, the Spanish government has created an independent body for the monitoring of the fiscal rules. The Organic Law 6/2013 establishes the “Independent Authority for Fiscal Responsibility”, explained in more detail in Question VII.4.
· Preventive measures: If public debt raises above 95% of the limits established in the Organic Law 2/2012 for the different levels of government, no more operations of indebtedness will be allowed but those of the public treasury. Adjustments to the social security system, if needed, will be made through norms with the status of a law (Article 18 of the Organic Law 2/2012 on Budgetary Stability).
· Corrective Measures: In case of non-compliance of the budgetary objectives by the central government, the Government will need to draft an Economic and Financial Plan to put the administration back on track, and this plan will need approval from the Spanish Parliament (Article 25(2) of the Organic Law 2/2012 on Budgetary Stability, which already existed in similar terms in Article 14(1) of the Law 18/2001 on Budgetary Stability). If a region exceeds its limits of deficit, debt or expenditure, the region in question is precluded from entering into more debt unless authorised by the Central Government. Likewise the region must present an Economic and Financial Plan that needs approval from the Council of Fiscal and Financial Policy prior report of the Independent Authority for Fiscal Responsibility (Article 20 of the Organic Law 2/2012 on Budgetary Stability, also drafted in similar terms in the Law 5/2001 but for the necessity of a report from the Independent Authority). Non-compliant local administrations must follow similar procedures, although if the Region in which they are located bears the competence for local surveillance, their Economic and Financial Plans are subject to the approval from their Region.
· Sanctions: If the region fails to present an economic and financial plan or to comply with it, the measures imposed by the central government can amount to the appropriation of the regions’ taxation competences “when needed to comply with the objectives of fiscal consolidation to the EU” (Article 25 of the Organic Law 2/2012 on Budgetary Stability, own translation). This is an unprecedented move of the central government and one that has raised controversy (see Question VII.2).
Other sanctions for non-compliance have been detailed in another piece of law, the Law 19/2013 on Transparency. If a Public Administration commits to carry out expenditures without sufficient credit for it, or does not use the budget surpluses for the compensation of public debt, the sanctions listed in Article 30 include the dismissal of the person responsible and the obligation to compensate the Public Treasury.
Another interesting issue is that of determining responsibilities when the budgetary framework of Directive 2011/85 is breached because of the actions of the local and regional administrations. Article 8 of the Organic Law 2/2012 on Budgetary Stability establishes that every public administration that causes or contributes towards a breach of EU legislation on budgetary stability must assume its corresponding liability. This has been developed by the Royal Decree-law 515/2013 on the regulation of the criteria and the procedure to determine and demand the responsibilities for breach of EU law.
· Financial assistance to regions and local governments: Additional Disposition No. 1 of the Organic Law 2/2012 on Budgetary Stability establishes for the first time a “bail out scheme” for those regions and local governments that request extraordinary access to credit. The financial aid granted is subject to an adjustment plan whose assessment is competence of the Ministry for Finance. The Law 4/2012 has partly reformed the Organic Law 2/2012 on budgetary Stability in order to establish more stringent obligations of information from the regions subject to a bailout plan, including monthly reports on the state of compliance of the adjustment measures. In addition, the Royal Decree-law 21/2012 on Liquidity Measures for the Public Administrations details the conditions of access to financial assistance for regions. A “Fund for Regional Liquidity” with a credit of 18.000 million euro is created in order to carry out the bail outs. This fund is managed by the Official Institute of Credit, which in turn is within the competences of the Ministry for Finance. To date, the regions that have resorted to the Fund for Regional Liquidity are Andalusia, Castile-La Mancha, Catalonia, Canary Islands, Valencia, Asturias, Balearic Islands, Cantabria and Murcia.
Medium-Term Budgetary Frameworks (Chapter V of Directive 2011/85)
Organic Law 2/2012 on Budgetary Stability lists the “principle of multi-annuality” among one of its guiding principles (Article 5). In Article 7 the Law states that all the policies of public spending must be made within a framework of medium-term budgetary planning. However, these articles are not a novelty given that both the “principle of multi-annuality” and the duty to draft the budget within a medium-term scenario were already foreseen in the Law 18/2001 of Budgetary Stability.
Transparency (Chapter VI, Article 14 of Directive 2011/85)
Transparency is enshrined as one of the principles of the Law on Budgetary Stability 2/2012. Chapter V develops this principle and sets the duty for every Public Administration to give information over the general lines of its budget before it is approved “with the purpose of complying with the requirements of EU legislation, in particular with those contained in Directive 2011/85/EU”. In addition, transparency has been the specific subject of the Law 19/2013 on Transparency, Access to Public Information and Good Governance. The Law 19/2013 partly gathers legislation on access to information that existed before. However, this time particular emphasis is put on the duty for all levels of government to facilitate budgetary, statistical and financial information as well as “their degree of compliance with the objectives of budgetary stability and financial sustainability of the Public Administrations” (Article 8, my own translation).
The Spanish regions have been called to implement similar duties to those contained in the Law 19/2013 on Transparency. Galicia, Balearic Islands, Navarra and Extremaduraalready had the relevant legislation in force. The rest of the Regions are currently in the process of passing their legislative drafts.
Comprehensive Scope of Budgetary Frameworks (Chapter VI, Articles 12 and 13 of Directive 2011/85)
Pursuant Article 12 of Directive 2011/85, the measures taken shall be consistent across all sub-sectors of government. This was a particularly challenging task for a decentralised polity like Spain, and has involved important legislative reforms at regional and local level. The inclusion of the principles of “responsibility” and “institutional loyalty” in the Organic Law 2/2012 on Budgetary Stability support this new dimension of budgetary commitments binding not only the central government but also the regional and local administrations. Indeed, the principle of responsibility means that those Public Administrations who do not comply with the Law and contribute to the breach of the commitments contracted under EU or international law must accept their proportional share of the consequent penalties. Additionally, the principle of institutional loyalty means that every Administration must ponder the financial impact that his actions may have over the other Administrations.
Other specific novelties at regional and local level worth noting are the following:
· Regional government: The Organic Law 2/2012 on Budgetary Stability precludes regional governments from entering into structural deficit, and for the first time it quantifies the percentage of public debt (13%) that corresponds tothe regional governmentsaltogether. Regional contingency fund are also compulsory so as to face unexpected and inevitable expenses. Another novelty has been the limitation of regional public spending in proportion to the national GDP, budgetary surpluses (if any) being destined to reduce indebtedness. In order to ensure compliance with the budgetary objectives of public debt and budgetary stability, the regions are compelled to forward monthly reports on the realisation of their budget, as well as the headlines of the draft regional budget so it can be assessed before it is approved (see Question VII.8). In the same line, the attempts to make the public administration more transparent through the Law 19/2013 on Transparency have resulted in a cascade of regional legislation establishing the duty of publicising relevant financial and economic information.
Perhaps the most controversial side of controlling regional finances has been the inclusion of stringent sanctioning measures and the implementation of an European-like stability mechanism for regions in the Organic Law 2/2012 on Budgetary Stability. The sanctions for non-compliance include the appropriation of regional tax competences by the central government, a measure whose constitutionality is doubted as explained in Question VII.2. The bailout mechanism for regions in need of assistance, on the other hand, has lead nine regions to request financial help and to accept the conditionality imposed from the Ministry of Finance. The political dimension of the bailout scheme has been big, as Catalonia has received the biggest assistance by far amidst claims that the central government would seize the opportunity to re-centralise the Catalan finances.
It must be remarked that the amendment of Article 135 of the Spanish Constitution (giving constitutional status to the principle of budgetary stability) allows the central government to affect the regional spheres of power in an unprecedented manner. This is so because for the first time all levels of government are subject to deficit and debt limits in virtue of the Constitution regardless of the specific division of competences between central, regional and local government. In addition, as Albertí Rovira states, the central government is now able to use Article 162.1 of the Spanish Constitution for the suspension regional legislation deemed against the now constitutional principle of budgetary stability.
· Local government: As with the regions, the percentages of public debt that corresponds to local governments (3%) is also quantified and limited. Local administrations must also submit reports to the central government every three months on the state of their budget. Notably, the application of the principle of budgetary stability to the local government sub-sectors has been made through the enactment of the “Law 27/2013 of rationalisation and sustainability of the Local Administration”. This Law guarantees the autonomy of the local government “with strict subjection to the legislation on budgetary stability and financial sustainability”. The duty to guarantee budgetary stability is one of the aims of the coordination between the different local administrations, and must be taken into account in the assessment of the public services provided by the local government. Other mechanisms for the rationalisation of local finances include limits on the personnel employed at the local governments and their salaries.
What political/legal difficulties did Spain encounter in the implementation process, in particular in relation to implications of the directive for (budgetary) sovereignty, constitutional law and the budgetary process?
The Spanish legislation based on budgetary stability has been perceived by local and regional governments as a violation of the political and financial autonomy of regions and municipalities. Medina Guerrero states that sanctioning non-compliant regions with the appropriation of their taxation competences by the central government can be unconstitutional. This is so because the Spanish constitution entitles the regions to have their own taxes and fees, as well as to exercise the taxation competences transferred by the State (once transferred, these competences are detailed in the Statues of Autonomy of every region, which also enjoy constitutional status). Moreover, limiting the regional spending ceilings and compelling the regions to use surpluses for the compensation of public debt strongly affects their budgetary autonomy. The spending ceilings have had important effects on regional competences such as healthcare, education and social assistance. Lastly, the bailout scheme for regions in need of liquidity entails strict conditionality, which can also be used to jeopardise the regional spheres of power. Catalonia, the largest recipient of these bailout funds since 2012, has increased its mistrust towards the central government under the belief that the government would seize the opportunity to re-centralise the Catalan finances.
While debates on the impact of budgetary stability over the regional autonomy are now a hot topic, in truth these controversies date back to 2001 when the first Law on Budgetary Stability established that regional and local budgets had to be guided by the principles of budgetary stability, multi-annuality, transparency and efficiency in the allocation of public resources. As the allocation of competences between State and the regions is framed in the Spanish constitution, the Parliament of Catalonia brought an action of unconstitutionality (“recurso de inconstitutionalidad”) before the Spanish Constitutional Court against the 2001 Law of Budgetary Stability. The Constitutional Court delivered the judgement on July 2011. It dismissed all the claims of Catalonia, stating that Article 149.1 of the Constitution confers the central government the competence on the basis and the coordination of the general planning of the economy, which in turn enables the government to ensure general budgetary stability across all levels of government.
In addition to the action lodged by the Parliament of Catalonia, other regional governments (that of Catalonia, Asturias, Aragón and Castile-La Mancha) as well as the Partido Socialista (which was the main opposition party back in 2001)also brought actions of unconstitutionality against the Law 18/2001 of Budgetary Stability and its complementary Law 5/2001. The novelty is that this time the amendment of article 135 of the Spanish Constitution (giving constitutional status to the principle of budgetary stability) had already entered into force when the Constitutional Court delivered its judgements. Again the Court dismissed the actions of unconstitutionality on the same grounds than in the previous Catalonian case, with the additional remark that the “standard of constitutionality” had been changed while the case was resolved. According to the Court, the new Article 135 enshrined the principle of budgetary stability not as a competence of the central government, but as a duty that all the public administrations had to respect.
Within the eurozone crisis, reactions against the new legislation on budgetary frameworks have included (i) a “recurso de amparo” (action of infringement of fundamental rights) from Izquierda Unida against the amendment of Article 135 of the Spanish Constitution, (ii) an action of unconstitutionality from the Government of Canarias against the Organic Law 2/2012 of Budgetary Stability, (iii) an action of unconstitutionality from Andalusia, Navarra and Extremadura against the Law 27/2013 of Rationalisation and Sustainability of the Local Administration.
(i) Action against the amendment of Article 135 of the Spanish Constitution: On 28 September 2011, a number of MPs from the parliamentary coalition Esquerra Republicana – Izquierda Unida – Iniciativa per Catalunya Verts filled an action at the Constitutional Court for the invalidation of parliamentary resolutions that approved the amendment of Article 135 of the Constitution. In their view, the disposition of Article 135 that guarantees the absolute priority of the payment of public debtrun against fundamental rights. As an example, they stated that effective judicial protection can be jeopardised, as funding for the administration of justice is subject to the priority payment of public debt and its interests. Since the new Article 135 had potential effects on the sections devoted to fundamental rights and freedoms, the claimants understood that the reform should not have been made through the simplified procedure, but through the ordinary one. The Constitutional Court declared the action inadmissible on the grounds that the connection of Article 135 with the other sections of the Constitution could not be deduced from the literal reading of the constitutional text, from the constitutional jurisprudence or from the academic doctrine.
(ii) Action of unconstitutionality against the Organic Law 2/2012 on Budgetary Stability: The action was lodged on 26 February 2013 by the Government of Canary Islands. The grounds of the action were the prominence of the central government in the configuration of the Law to the detriment of the regional competences. Among others, the government of Canary Islands mentioned Article 16 that confers the Central Government the task of determining the objectives of budgetary stability and public debt for each region. The action of unconstitutionality is still pending of resolution by the Constitutional Court.
Action of unconstitutionality against the Law 27/2013 of Rationalisation and Sustainability of the Local Administration: The action of unconstitutionality was brought by the governments of Andalusia, Catalonia, Asturias, and Canarias, as well as the Parliaments of Andalusia, Navarra, Extremadura, Catalonia on the grounds that the new measures for the rationalisation of the local administration jeopardise the regional competence on these matters. Fifty members of the Spanish Parliament, lodged an action of unconstitutionality against the same Lawon the basis that some of the precepts not only jeopardised the regional competences on local matters, but also the competences of the local administrations guaranteed by Articles 137, 140 and 142 of the Spanish Constitution. The Constitutional Court admitted this action of unconstitutionality in May 2014. Lastly, about 3000 municipalities presented an action of unconstitutionality for breach of local competences (conflicto en defensa de la autonomia local), action that was admitted on 10 September 2014. The municipalities base their claims on the reconfiguration of local social services carried out by the Law (some precepts foresee that in municipalities of less than 20,000 inhabitants, the management of social services can be transferred to the council of the province).The actions of unconstitutionality for breach of local competences can only be brought by 1,160 municipalities representing at least one-sixth of the Spanish population (about 7,8 million inhabitants), having been the first time that a sufficient number of local governments manage to lodge such an action. Notably, about 850 of these 3000 municipalities are from Catalonia.All the recourses against the Law 27/2013 of Rationalisation and Sustainability of the Local Administration are pending of resolution by the Spanish Constitutional Court.
Macroeconomic and budgetary forecasts
What institution will be responsible for producing macroeconomic and budgetary forecasts (article 4(5) Directive 2011/85/EU)? What institution will conduct an unbiased and comprehensive evaluation of these forecasts (article 4(6) Directive 2011/85/EU)?
Pursuant Article 15(5) of the Organic Law 2/2012 on Budgetary Stability, macroeconomic and budgetary forecasts must be set in a report whose preparation is a competence of the Ministry of Economy and Competitiveness, after consulting the Bank of Spain and taking into account the provisions given by the European Central Bank and the European Commission.
Evaluation of the forecasts is carried out by the Independent Authority on Fiscal Responsibility (Autoridad Independiente de Responsabilidad Fiscal, AIRF: see Question VII.5).
Does Spain have in place an independent Fiscal Council (article 6(1) Directive 2011/85/EU: ‘independent bodies or bodies endowed with functional autonomy vis-à-vis the fiscal authorities of the Member States’)? What are its main characteristics? Does Spain have to create (or adapt) a Fiscal Council in order to implement Directive 2011/85/EU?
In Spain there were already a number of fiscal bodies, but none with the functional autonomy demanded by Directive 2011/85. The Spanish Government therefore proceeded to create a new “Independent Authority on Fiscal Responsibility” (IAFR hereinafter), through the approval of the Organic Law 6/2013 on the creation of an Independent Authority of Fiscal Responsibility.
Pursuant Article 1 of the Law, the IAFR has got the legal condition of a public body with legal personality and full public and private capacity. It performs its duties with autonomy and functional independence: neither the President nor the personnel seek or take instructions from any public or private entity (Article 7). Its adscription to the Ministry for Finance and Public Administration is only for budgetary purposes (meaning that the resources allocated to the IAFR are inserted in the state budget as an item within the budget of the Ministry for Finance). Article 11 guarantees the IAFR economic and human resources enough to carry out its functions, and adds that apart from the funds assigned from the general budget, the IAFR will have its own patrimony.
The main function of the IAFR is consultative. It issues prescriptive reports as to macroeconomic forecasts; methodologies used for the calculation of expected revenues and spending; the annual Stability Programme; analyses on the state of the budget, public debt and spending; the objectives of budgetary stability and public debt set for each region; the economic and financial plans and plans of rebalancing of the central and regional administrations; the general lines of the budget of the public administrations; and the existence of the exceptional circumstances mentioned in the Law of Budgetary Stability that exempt the Administration from complying with the numerical fiscal rules of debt, deficit and spending established by default. The IAFR can issue discretionary opinions on the follow-up of the execution of the budget, the long-term sustainability of public finances and any other matter established by law.
The Law is silent as to the legal effects of the reports issued by the IAFR. From the reading of Article 14, (“the stability programme shall indicate if it has been approved by the IAFR”), it is understood that the IAFR does not enjoy veto powers and its reports are not binding. Only in one circumstance does the report entail consequences: if the IAFR determinates that the macroeconomic forecasts are strongly biased, the State shall take the measures to correct it and will make them public (yet the Law is silent as to the consequences of an eventual non-compliance of the State).
Regulation No 1176/2011 on the prevention and correction of macroeconomic imbalances
What political/legal difficulties did Spain encounter and what debates have arisen, in particular about implications of the regulation for (budgetary) sovereignty, constitutional law, socio-economic fundamental rights, and the budgetary process?
Regulation 1176/2011 was debated at the Parliamentary Commission for the EU on 9 December 2010. At this meeting, Moscoso del Prado Hernández from Partido Socialista presented his report on whether the Regulation complied with the principles of subsidiarity and proportionality. Moscoso del Prado Hernández explained that, in his view, the Regulation proceeded in the right direction as to the reinforcement of the fiscal and economic component of the EU. He continued saying: “we are all aware that the advancement in the economic and monetary union is the key element to ensure a correct stabilisation of the European economy, a way out of the crisis and the put into practice of the measures of economic policy needed to reform the growth model”.
Spain was identified as one of the states needing an in-depth review. The reason given for an in-depth analysis was the adjustment period that Spain was experiencing in the aftermath of large internal and external imbalances caused by the housing bubble and the credit boom.
The In-depth Review concluded that Spain is experiencing very serious macroeconomic imbalances that had to be urgently addressed. The Commission argued that Spain had been affected by large and closely interconnected external and internal imbalances. Strong capital inflows during the boom years had contributed to the accumulation of large net external liabilities and spurred a large housing and construction bubble. When this bubble burst as a result of the financial crisis, the exposure of the banking sector to doubtful real estate and construction assets endangered the financial stability of the country.
As the adjustment of the imbalances derived from the housing bubble started to take place new imbalances arose in the labour market and in public finances. A great part of the workers on the construction sector lost their employments. Public debt increased rapidly due to stimulus measures and the loss of tax revenue also linked to the construction sector. The banks, burdened with loan losses, saw their lending capacity further constrained by difficult access to finance. This, in turn, limited access to credit by producers of goods and services and held back the structural adjustment of the economy.
Although to date the policy response from the Spanish government had been far reaching, the report pointed out a challenging roadmap for the future. It called for “policies aimed at increasing competitiveness and enlarging the export base of the Spanish economy, strengthening competition in product and service markets, further restructuring of the banking sector with a strong focus on trouble asset disposal, completing the adjustment of the housing sector and enhancing the scope of reforms in the labour market”.
Regulation No 1175/2011 on strengthening budgetary surveillance positions
What changes to the rules on the budgetary process are made to accommodate the amended Medium-term Budgetary Objective (MTO) Procedure?
The Law 18/2001 on Budgetary Stability already foresaw the yearly preparation of a medium-term budgetary objective covering a three-year period. The new Organic Law 2/2012 on Budgetary Stability has not introduced significant changes on the rules for the elaboration of the MTO: as in 2001, the MTO is drafted by the Council of Ministers, based on a proposal from the Ministry for Finance and following the reports submitted by the Financial Council of the Regions (FFCR) and the National Commission for Local Administrations (NCLA). Also in similar terms the draft of the Council of Ministers needed approval from the Congreso and the Senado. However some changes introduced in 2012 are worth noting:
(i) Allusions to EU recommendations and opinions: Article 15 of the Organic Law 2/2012 on Budgetary Stability introduces a paragraph stating that for the establishment of the MTO the recommendations and the opinions on the Stability Programme issued by the EU will be taken into account, as well as any other pronouncement issued as a consequence of the EU supervision mechanisms.
(ii) More strict conditions of approval at the Parliament: In the 2001 Law on Budgetary Stability if the Senado rejects the draft of the MTO, the Congreso could approve if by simple majority. In the new 2012 Law on Budgetary Stability, if any of the chambers rejects the text, the Government must present a new MTO within a month.
Strict consequences of non-compliance by the regions: Both the Laws of 2001 and 2012 foresaw that those regions breaching the MTO set for them would need to elaborate an economic and fiscal plan. However, in 2012 new consequences are added if a region does not present or does not follow its economic and fiscal plan: pursuant Article 25 of the Organic Law 2/2012 on Budgetary Stability the region can no longer issue credits and must establish a fund in the Spanish Central Bank for the value of 0.2% of its GDP so as to guarantee compliance with the budgetary objectives. Further, when needed to ensure compliance with the commitments of fiscal consolidation to the EU, the regional competences on taxation will be appropriated by the central government. If the region did not comply with any of these measures, Article 26 grants the government to execute them by force. All these measures curtail significantly the budgetary room of manoeuvre of the regions and have been pointed out as unconstitutional.
What changes have to be made to the rules and practices on the national budgetary timeline to implement the new rules on a European Semester for economic policy coordination (section 1-A, article 2-a consolidated Regulation 1466/97)?
The European Semester has resulted in the inclusion of a specific budgetary timeline in the Organic Law 2/2012 on Budgetary Stability, further developed by the Ministerial Order HAP/2105/2012. As a result, the budgetary timeline is as follows:
(i) Medium term objectives of budgetary stability and public debt: Pursuant Article 13 of the Ministerial Order HAP/2105/2012, the regions must submit their forecasts on indebtedness to the central government before 31 March. Pursuant Article 15 of the Organic Law 2/2012 on Budgetary Stability, before 1 April the Ministry for Finance submits his proposal on budgetary stability and public debt for the following three years to the Council of Fiscal and Financial Policy of the Regions (CFFPR) as well as to the National Commission of Local Administrations (NCLA). The CFFPR and the NCLA must issue back their own reports within 15 days. After reading the reports and taking into account the proposal of the Ministry of Finance, the Council of Ministers must set the objectives of budgetary stability and public debt within the first half of the year. The proposal of the objectives of budgetary stability and public debt must be approved by the Congreso and the Senado. If any of them rejects the proposal, the government must submit a new one within one month.
(ii) Limits on non-financial spending: Once the objectives of budgetary stability and public debt are set, the limits on non-financial spending of the Administrations must be set coherently with such objectives (Article 30 of the Organic Law 2/2012 on Budgetary Stability). Before 1 August each year the Ministry for Finance must inform the CFFPR the limits of non-financial spending set for the State Budget. Likewise, before 1 August the Regions must submit to the CFFPR information on the limits of non-financial spending that each of them has approved.
(i) Approval of the State Budget: The timeline of the elaboration of the State Budget by the central government has not experienced significant changes due to the European Semester, since the government was already compelled by law to submit the draft of the State Budget to the Parliament before 1 October and to have it passed before the end of the year (Articles 34 and 37 of the General Budgetary Law 47/2003). As a novelty, the Independent Authority for Fiscal Responsibility will now assess whether the draft budget complies with the objectives of budgetary stability, public debt and spending ceilings by 15 October (Article 17(1) of the Organic Law 2/2012 on Budgetary Stability).Furthermore, a specific allusion to the European Semester is made in the Ministerial Order 981/2013 setting the rules for the preparation of the 2014 State Budget, which states in the preamble that “the 2014 budget will also take into account the recommendations of the Council of the European Union delivered both within the European Semester and the excessive deficit procedure to which Spain is subject”.
In addition, relevant changes have been introduces so as to ensure that regions and local administrations share their budgetary plans within specific dates: pursuant Articles 13 and 15 of the Ministerial Order 2105/2012 the regions and local administrations must submit the headlines of their budgets to the central government before1 October. The Independent Authority for Fiscal Responsibility then issues a report on 15 October assessing the compatibility of the local and regional budgetary plans with the objectives of budgetary stability, public debt and limits on public spending (Article 17(4) of the Organic Law 2/2012 on Budgetary Stability).
(ii) Monitoring: Before 1 April, the Independent Authority for Fiscal Responsibility will forward the Government a report on the state of compliance with the objectives of budgetary stability and public debt that were foreseen in the budgets of the central, regional governments and local budgets (Article 17(2) of the Organic Law 2/2012 on Budgetary Stability). By 15 April, the Ministry of Finance will forward the government a report of compliance with the objectives of budgetary stability, public debt and spending ceilings of the previous economic period, together with information on the evolution of the economy and the deviations from the initial forecasts (Article 17(3) of the Organic Law 2/2012 on Budgetary Stability). The Article adds that this report will be elaborated on the basis of the information that needs to be forwarded to the European authorities.
In addition, regional governments and local administrations must submit periodic reports on the realisation of their budget. These reports are monthly for the regions (Article 14 of the Ministerial Order HAP/2105/2012 on the duties of providing information foreseen in the Organic Law 2/2012 on Budgetary Stability) and every three months for the local governments (Article 16 of the same Ministerial Order).
What political/legal difficulties did Spain encounter and what debates have arisen, in particular about implications of the regulation for (budgetary) sovereignty, constitutional law and the budgetary process?
When the introduction of the European Semester was discussed at the Spanish Parliament, the main political parties seemed to agree on the transformation that it would entail for the budgetary process, but this was not perceived as negative for most of the MPs. At the meeting of the Parliamentary Commission for the EU, Moscoso del Prado Hernández from Partido Socialista stated that the European Semester would transform the manner in which Member States elaborate their economic policies with a different timeline, different preparation of the budget and strong supervision. Soledad Becerril from Partido Popular claimed that the European Semester would make everything more relaxed and predictable, as it would allow Member States to observe progressively whether they reach the budgetary objectives and hence eventual policy recommendations from the Commission would be more expectable.
The main political or legal difficulties that Spain encountered, if any, have been related with a stronger control of the budgetary timelines of the regions, including more stringent duties of providing economic information to the central government (see Question VII.8). However to date the regions have not taken legal actions against the rules derived from the European Semester.
How is respect of the Medium-term Budgetary Objective included in the national budgetary framework (section 1A, article 2a consolidated Regulation 1466/97)?
Article 15(7) of the Organic Law 2/2012 on Budgetary Stability states that once approved the MTO by the Spanish Parliament, the bill of the State Budget for the Public Administration must accommodate to these objectives. Likewise Article 29 of the same Law states that the MTO must be included within the corresponding Stability Programme. The Organic Law 2/2012 on Budgetary Stability is not conclusive on the consequences of non-compliance: pursuant Article 29(4) every modification or deviation from the medium-term budgetary plan will have to be explained, but no further consequences are foreseen.
What is Spain’s current Medium-term Budgetary Objective (section 1A, article 2a consolidated Regulation 1466/97)? When will it be revised?
On July 2014, the new MTO for 2015 – 2017 established that a structural deficit of 1.1% is to be reached by 2017 (until then, the deficit will be progressively reduced: 2.9% in 2015 and 2.2% in 2016). The MTO is revised yearly by the Council of Ministers.
By what institution and through what procedure is Spain’s Medium-term Budgetary Objective adopted and incorporated in the stability programme (Eurozone, article 3(2)(a) consolidated Regulation 1466/97)?
The medium-term objectives of budgetary stability and public debt are drafted by the Council of Ministers every June. For this, the Ministry of Finance forwards a proposal for budgetary stability and public debt to regional and local governments before 1 April. The Fiscal and Financial Council of the Regions (FFCR) and the National Commission for Local Administrations (NCLA) then submit their own reports on the matter within 15 days. Taking into account the proposal for budgetary stability and public debt drafted by the Ministry of Finance and after receiving the reports from the FFCR and the NCLA, the Council of Ministers sets the proposal for MTO for all the public administrations as a whole and also for its different sub-sectors. The Organic Law 2/2012 on Budgetary Stability specifies that in establishing the medium-term budgetary objectives, the Council of Ministers must take into account the recommendations and opinions issued by the EU on the Stability Programme of Spain or as a consequence of other supervisory mechanisms.
The proposal of MTO drafted by the Council of Ministers is accompanied by a report that evaluates the economic situation that is forecasted for each of the years of the MTO. This report is made by the Ministry of Economy after consulting the Spanish Central Bank and taking into account the forecasts of the European Central Bank and the European Commission.
Both the proposals of MTO and the report elaborated by the Ministry of Economy are submitted to the Congreso and the Senado for approval. If the Congreso or the Senado reject the medium-term objectives, the Government (understood as the Council of Ministers) must submit a new MTO for approval within one month. The MTO for the period 2014 – 2017 was agreed at Council of Ministers on 27 June 2014, approved at the Congreso on 8 July 2014 and at the Senado on 9 July 2014.
Article 29 of the Organic Law 2/2012 on Budgetary Stability states that the medium-term budgetary plan must be included in the Stability Programme. In practice, both the Stability and the National Reform programmes contain the MTO released the previous year: for instance, the Stability Programme for 2014 includes the MTO for the period 2014 – 2017 that had been released in July 2013, and the same can be said about the National Reform Programme for 2014. The Stability Programme and the National Reform Programme are elaborated every April by the Council of Ministers, although in this case no approval from the Parliament is needed.
Regulation No 1177/2011 on the excessive deficit procedure
What political/legal difficulties did Spain encounter and what debates have arisen, in particular about implications of the regulation for (budgetary) sovereignty, constitutional law and the budgetary process?
Regulation 1177/2011 was briefly discussed by the Parliamentary Commission for the EU on 9 December 2010. Miguel Arias Cañete, from Partido Popular and president of the parliamentary committee at the time, stated that the intervention of the EU was adequate and justified by the interdependence among the Member States as a result of the monetary union. Following the report drafted by Jordi Xuclá from Convergencia I Unió, Arias Cañete prompted his colleagues to consider that the Regulation was indeed respectful of the subsidiarity principle. This was so because the economic and budgetary policies taken on each Member State could have financial and economic consequences on all the eurozone, which justified that the EU established common standards to all the Members. All the MPs of the Parliamentary Commission supported the report stating the compliance of the Regulation with the subsidiarity principle, which was approved by unanimity.
Regulation No 1173/2011 on effective enforcement of budgetary surveillance
What political/legal difficulties did Spain encounter and what debates have arisen, in particular about implications of the regulation for (budgetary) sovereignty, constitutional law and the budgetary process?
Political discussions on Regulation 1173/2011 took place on 9 December 2010 at the Parliamentary Committee for the EU. The debate was brief and focused on determining whether the Regulation complied with the principles of subsidiarity and proportionality. Juan Manuel Albendea Pabón from Partido Popular presented his report, which concluded that both subsidiarity and proportionality were respected by Regulation 1173/2011. Albendea explained that uniform sanction mechanisms were needed in order to safeguard the Stability and Growth Pact in the Eurozone, and this justified that the EU took action in the matter. The other parliamentarians of the Committee refused to do any more declarations after the intervention of Albendea. The positive report was unanimously approved.
What further changes have to be made to the rules on the budgetary process in order to comply with the Six-Pack rules?
Ley Orgánica (Organic Law) 2/2012, of April 27, on Budgetary Stability and Financial Sustainability, being the law that develops the amendment of Article 135 of the Constitution and being approved on 2012 (so, after the adoption of the Six-Pack rules) is the current piece of legislation covering most of the budgetary process in Spain, and it was drafted in order to comply with all the new measures introduced by the Six-Pack. Since it has been widely developed above (see Question VI.2) we can conclude that no further changes have had to be made in order to comply with the Six-Pack rules, apart from the ones already explained before.
What other information is relevant with regard to Spain and the Six-Pack?
No other relevant information