The Constitutional Court in plenary session, composed of Mr. Francisco Tomás y Valiente, President, Mr. Francisco Rubio Llorente, Vice President, Mr. Fernando García-Mon y González-Regueral, Mr. Carlos de la Vega Benayas, Mr. Eugenio Díaz Eimil, Mr. Miguel Rodríguez-Piñero y Bravo-Ferrer, Mr. Jesús Leguina Villa, Mr. Luis López Guerra, Mr. José Luis de los Mozos y de los Mozos, Mr. Alvaro Rodríguez Bereijo, Mr. Vicente Gimeno Sendra and Mr. José Gabaldón López, Judges, have issued
IN THE NAME OF THE KING
This is an application (Case 1236/92) filed by the State Attorney, in the name and on behalf of the Government of the nation to determine whether there is a contradiction between Article 13.2 of the Spanish Constitution and Article 8 B, section 1, of the Treaty Establishing the European Economic Community (hereinafter, the “EEC Treaty”), as restated in Article G B, 10, of the Treaty on European Union. Judge Vicente Gimeno Sendra wrote the opinion of the Court.
I. Findings of Fact
1. In an application filed at this Court on May 13, 1992, the State Attorney acting in his legal capacity and by virtue of a resolution adopted by the Government of the Nation at the meeting of the Council of Ministers held on April 24, 1992, pursuant to Article 95.2 of the Constitution and Article 78.1 of the Organic Law of the Constitutional Court, has requested this Court to deliver an opinion as to whether there is a contradiction between Article 13.2 of the Constitution and Article 8 B, section 1, of the Treaty Establishing the European Economic Community (hereinafter, the “EEC Treaty”) as restated in Article G B, 10 of the Treaty on European Union (hereinafter, the “EU Treaty”) done in Maastricht on February 7, 1992, by issuing a declaration on the matters set forth in the aforementioned resolution.
In a resolution of the Council of Ministers of April 24, 1992 it was in effect resolved to commence the consultation procedure provided for in Article 95.2 of the Constitution with a view to seeking the opinion of this Court concerning a possible contradiction between the Constitution and Article 8 B, section 1, of the EEC Treaty as restated in Article G B, section 10, of the EU Treaty, whose text reads as follows:
1. “Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State”.
2. For the purpose of accurately determining the terms of the present application, the Government first explained the background of the matter, underscoring in that regard that the EU Treaty, far from limiting itself to creating an organizational and procedural framework to facilitate the establishment of a common foreign relations policy and providing for European security and defense, while likewise reinforcing the process of economic and social integration, also includes in this basis for a true European Community and political integration the creation of “EU citizenship”, as a civil status different from citizenship in the Member States, being of a higher order rather than superimposed thereon. At the core of this “European citizenship” is the recognition of EU residents’ right to vote and stand as candidates in municipal elections on the same terms as the nationals of the Member States (Article 8 B, section 1, of the EEC Treaty, introduced by Article G B, 10, of the EU Treaty) and in European Parliament elections (Article 8 B, section 2, of the EEC Treaty).
Being aware of the profound significance of the EU Treaty and of the need to conduct the efforts toward European unity in accordance with the Constitution, during the negotiations stage of the Treaty the Government already sought the opinion of the Council of State, whose Standing Committee concluded on July 20, 1991 that: a) given that the Treaty recognizes citizens of the Union residing in Spain the right to vote and stand as candidates in European Parliament elections, el Treaty is political in nature pursuant to Article 94.1 a) of the Constitution; b) the Treaty provision recognizing those resident citizens the right to vote in European Union elections is of the same nature, c) if the Treaty recognizes EU citizens residing in Spain el the right to stand as candidates in municipal elections, such elections could be authorized in an Organic Law pursuant to Article 93 of the Constitution. This opinion was reiterated in a second report issued by the Council on April 9, 1992.
On that basis the plenipotentiaries of he State signed the EU Treaty last February 7 in the city of Maastricht. Nevertheless, before giving the State’s final consent, the Government has deemed it advisable to seek this opinion concerning the constitutionality of the EU Treaty and the internal measures for implementing it, limiting its question with regard to the opinion of the Council of State, to possible doubts concerning the constitutionality of the procedure for authorizing the conclusion of the Treaty under Article 93 of the Constitution, and broadening it with regard to recognizing the right of EU citizens residing in Spain to vote and stand as candidates in municipal elections, to include the alternative of reforming electoral laws, as well as the suitability, if warranted, of a constitutional amendment pursuant to Article 167 of the Constitution.
The Government then proceeded to indicate that the requirements for requesting the present opinion have been met, emphasizing in that regard that the complex nature of its purpose implies that, for reasons of procedural coherence and legal certainty, and given the very nature of the “questioned” provision and of the conflict of the laws involved, the request for an opinion cannot be limited to posing the question in such general terms as to leave unanswered other doubts as to the constitutionality of the provisions implementing the Treaty. In the opinion of the Government, the possibility of extending this application to cover not only doubts of constitutionality stricto sensu, but also to alternatives such as resolving possible constitutional conflicts through legislation (and thus extending the comparison of the Treaty and the Constitution to considering possible legislative remedies) falls within the scope of the constitutional and legal definition of an opinion. On the one hand, this is not a contentious proceeding, but rather a request for an opinion in which the applicant has greater freedom to express the terms of the question than would be the case in litigation. Moreover, Article 78 of the Organic Law of the Constitutional Court supports this perspective when it clearly implies that what is submitted to the Court is a complex matter –broader than in the case of a contentious proceeding- in which the opinions of the applicant can be included.
3. Having reviewed the background and the position of the Government as to the legitimacy of the application and the terms in which it has been filed, the Government then set forth its doubts concerning the constitutionality of the EU Treaty prior to its final ratification by the State, and the framework in which those doubts have arisen:
a) The first doubt refers to the possibility of circumventing a possible contradiction between the EU Treaty and the Constitution by the means provided in its Article 93, interpreting the Treaty as granting to an international institution the right to exercise powers derived from the Constitution.
In the opinion of the Government, this is the most appropriate procedure for addressing the question here considered, which in reality is none other that the compatibility of two precepts that belong to different and independent, although closely related, legal systems, that of the Member State and that of the European Union (as per the Judgment of the Court of Justice of the European Communities in the case of Costa/Enel and Constitutional Court Judgment 28/1991). Moreover, this approach would address the question concerned in the most appropriate terms, that is, whether this case is one of those in which, since the core of the Constitution is not at stake, the Constitution itself provides a means for avoiding a material comparison with the provisions intended to form a part of its legal system.
In that regard, Article 93 of the Constitution, as a unifying provision between the domestic constitutional order and the EU legal system, would serve to resolve problems arising with respect to the future Article 8 B, 1 of the EEC Treaty. As a document that establishes the European Union, the EU Treaty shares the twofold nature of the other EEC founding treaties, that is, it contains both provisions whereby the states grant powers and whereby those powers are initially exercised. For the Government, the future Article 8 B, 1 of the EEC Treaty is clearly a provision for exercising conferred powers, since it sets forth the basis for exercising the right to vote and stand as a candidate in municipal elections. This is evident in the very nature of the precept (compulsory provision), its position in the Community legal order (as part of the EEC Treaty), the implementing provisions included therein (granted to the Council, upon a proposal of the Commission, and after consulting with Parliament), and submission of this matter to the jurisdiction of the Court of Justice of the European Communities (Article L of the EU Treaty).
It was furthermore stated that the EU Treaty could have merely indicated that the Council would regulate the participation of EU citizens in municipal elections. In that case it would have merely assumed powers on behalf of the Community that would not have come into conflict with the Constitution, nor would there have been any conflict with regard to recognition of the right to stand for election in a provision of secondary legislation, which is exactly what is envisioned in the future Article 8 B, 1 of the EEC Treaty, with the only difference being that this recognition is set forth in a treaty.
The Government indicated that its doubts concerning the procedure provided under Article 93 of the Constitution actually concern the internal material limits of the transfer of powers. In that respect, it maintains that although implicit limits do exist, defining their scope is extraordinarily complicated, especially with regard to, when warranted, the basic principles of the social and democratic state, and the high values of the legal system and fundamental rights. At any rate, the rights reserved to Spaniards in Article 13.2 of the Constitution cannot be deemed to be a part of these non-transferable core matters, since none of the values and principles set forth in Articles 1.1 and 10.1 of the Constitution reserves for Spanish nationals the right to stand as candidates in municipal elections. Only the principle of national sovereignty might have some connection with this reservation of rights, as the Constitutional Court of the Federal Republic of Germany has held, although avoiding any analysis of the matter from a European Community perspective.
Finally, and in conclusion, it is the Government’s opinion that there is no conflict between Article 13.2 of the Constitution and the future Article 8 B, 1 of the EEC Treaty, since they are provisions enacted within different scopes of powers and in different, albeit coordinated, legal systems. The basis for the internal effectiveness of the former is the same as for all European Community law (Article 93 of the Constitution) as is, moreover, suggested by the points made during the course of deliberations of the International Affairs and Public Freedoms Committee of the Congress of Deputies when drafting the present Article 13.2 of the Constitution. Thus, the relationship between both provisions derives from the existence of these two legal systems, and neither repeals the other, as is the case with a general legal provision and a special one. Authorization to sign the EU Treaty would thus only require that it be enacted in an organic law.
b) Together with the possibility of resorting to applying Article 93 of the Constitution, the Government likewise considered the constitutionality of concluding the EU Treaty from a different perspective involving the combination of Articles 13.2 and 11. In that regard it argued that the future Article 8 B, section 1 of the EEC Treaty would only be unconstitutional –and, specifically, Article 13.2- if Article 11 of the Spanish Constitution defined nationality through material criteria or other terms not compatible with the purposes of the Treaty and did not entrust the legislature with enacting laws of this legal category.
Based on “EU citizenship”, the vocation of the EU Treaty with regard to municipal elections is to place residents from EU Member States on the same footing as nationals. This means that in municipal elections being an EU resident is the same as being a national of the country in question. Holding EU citizenship implies losing the status of foreigner and assuming a civil status on an equal basis with nationals. If this means that residents from EU Member States must be treated as nationals for the purpose of these elections, then the legislative technique of using legal fictions may be the most adequate vehicle for implementing this supposition. At this point the Government offered a series of considerations concerning so-called legal fictions, which play a technical role in applying a law currently in force to a new case by attributing to it elements required in the circumstances contemplated in the already-existing law. Thus, a provision can cover a situation not previously envisioned, and the law can then govern those new circumstances. Pretending that A is B is only a peculiar way of expressing that legally A should be considered as being governed by the same rules applicable to B, and this is essentially what is required in the provisions of the EU Treaty regarding non-national residents. The Government then asserted that the most established case law confirms that this type of technical instrument is essential for the progress of the law and, in effect, the history of constitutionalism offers good examples of how it has been used, such as the fiction of considering women as “men” to be able to incorporate in constitutions the concept of non-discrimination based on gender. The appearance today of an “EU citizen” granted rights once reserved for nationals can be resolved using that same legal technique. To implement the rights envisioned for them in the Treaty without resorting to constitutional reform, it would suffice for the legislature to enact a law in which for the purposes of voting and standing as candidates in municipal and European elections EU citizens shall be considered Spaniards.
The fact that there is no constitutional definition of Spanish nationality authorizes the legislature to define nationality in the terms it deems warranted, as is, moreover, expressly recognized in the aforementioned Article 11 of the Spanish Constitution. In addition, considering that legislation regulating the matter does not define nationality as a status with underlying common material denominators nor as a unified and definite group of rights and duties (given that Article 11.2 grants certain nationals specific immunities), it can only be concluded that Spaniards are those that the legislature determines, with the legal effects that the legislature defines. In that regard, and given that the EU Treaty does not actually require a constitutional amendment, but merely regulation in the area of the personal application of one of its precepts so that EU citizens residing in Spain may be considered as nationals, it is evident that if the legislature –exercising a power that is not only not prohibited under the Constitution, but rather required under Article 11 in view of its material lack of definition- decides that those resident citizens shall be considered as nationals, the clause in the future Article 8 B, section 1, of the EEC Treaty shall have been strictly fulfilled.
In the view of the Government, in addition to avoiding a constitutional amendment, this second solution would preclude drafting Article 13.2 in such a way so as to give non-EU nationals the right to stand as candidates in municipal elections and, moreover, would avoid having to subsequently reform significant sectors of the legal system (immigration laws, local laws, the electoral system, etc.), with the beneficial effect of underscoring Spain’s role in the proposal to create a European citizenship.
c) Finally, and accepting as a hypothesis that the preceding solutions might not be feasible, the Government enquired as to which procedure should be used to amend the Constitution. After offering a series of considerations concerning the institution of constitutional reform and the cases contemplated under Article 168 of the Spanish Constitution –a precept whose application is of necessity restrictive (as is likewise reflected in Constitutional Court case law concerning the guarantees contained in Articles 53 and 81; Constitutional Court Judgments 5/1981, 76/1983 y 111/1983), given that the location of provisions in the Constitution is the criterion applied to determine whether they are subject to this reinforced amendment procedure-, the Government proceeded to set forth the reasons why, in its opinion, the amendment procedure to be applied would be the one envisioned in Article 167. The reason on which this understanding is based is that, although Article 23 of the Spanish Constitution might be affected by the future Article 8 B, section 1 of the EEC Treaty, that impact would be minimal, given that the drafters of the Constitution distinguished between the right of political participation (Article 23) –which is a legally-configured right- and those authorized to exercise that right (Articles 23 and 13.2). Thus the new European community precept would only affect the constitutional provision that extends to foreigners the right to vote in municipal elections (Article 13.2), which would, moreover, not affect the essential content of the right set forth in Article 23, given that neither the powers inherent in this subjective right, nor the legally-protected interests that are the core of the right of political participation (Constitutional Court Judgment 11/1981) would be impaired by extending to EU citizens the right to stand as candidates in municipal elections. Arguments to the contrary could only be sustained from the perspective of merely rhetorical considerations since, although the Constitutional Court has declared that the Article 23 right is “a reflection of a democratic state in which sovereignty resides with the people from whom all powers are derived” (Constitutional Court Judgment 23/1984), this cannot result in a distortion of the content of the right of political participation. This right derives from democratic ideals and in political organization reflects the principle of popular sovereignty, but its configuration as a subjective right must be rooted in the dignity of the person as a basis of the political system and the subsequent consideration of participation as a “value in itself”. In summary, the mirror aspect of the right of participation with regard to the principle of popular sovereignty precludes altering its content to configure it as a power of disposal over a proportional part of the sovereignty of the citizen as an integral part of the people.
4. In view of the foregoing, the Court has been requested to render a binding declaration concerning the following matters:
a) The constitutionality of applying the provisions of Article 93 of the Constitution and whether it is adequate and sufficient for the purpose of the State’s granting its consent to the Treaty on European Union signed at Maastricht on February 7, 1992 and its integration into the Spanish legal system.
b) If applicable, whether there is a contradiction between Article 8 B, section 1 of the EEC Treaty as restated in Article GT B, 10 of the EU Treaty and Article 13.2 of the Constitution, as well as the correctness of the interpretation of Article 11 of the Constitution set forth in this application and, thus, without prejudice to its possible content, the legitimacy of the legislative reforms to be implemented in that regard.
c) If applicable, whether the provision of Article 167 of the Constitution is appropriate for proceeding to amend the Constitution, which may be required pursuant to Article 95.
5. By an order dated May 14, 1992 the Constitutional Court in plenary session accepted as having been filed the application from the Government of the Nation received the previously day pursuant to Articles 95.2 of the Spanish Constitution and 78.1 of the Organic Law of the Constitutional Court and, in accordance with Article 78.2 of the Organic Law of the Constitutional Court, summoned the applicant and the Congress of Deputies and the Senate via their respective Presidents to submit their reasoned opinions concerning this matter within a maximum term of one month.
6. In a document filed on May 27, 1992 the President of the Senate forwarded to this Court the Resolution adopted by the Senate officers on May 20, 1992 acknowledging receipt of this Court’s order of May 14 and indicating that the Upper House had chosen not to exercise its right to issue a reasoned opinion with regard to the subject of the Government’s application.
7. In a document filed with this Court on May 29, 1992 the President of the Congress of Deputies submitted a Resolution of the officers of the Congress dated May 26, informing this Court that the Congress of Deputies had chosen not to be considered a party to this proceeding nor express its reasoned opinion concerning this matter, forwarding it to the Department of Research and Documentation of the Secretariat General.
8. In a document filed on June 2, 1992, the el State Attorney acting in his legal capacity and in compliance with the instructions contained in the Resolution of the Council of Ministers of May 22, 1992 declared that the Government of the Nation would not issue a reasoned opinion as provided for in Article 78.2 of the Organic Law of the Constitutional Court, while submitting the text of the Resolution of the Government that gave rise to the present proceeding.
II. Conclusions of Law
1. This application filed by the Government is the first to have been brought under the procedure set forth in Article 95.2 of the Constitution, as implemented in Article 78 of our Organic Law. For that reason, and to better clarify the terms of the present question, it is necessary to now offer a few prior considerations with regard to the procedure regulated in those provisions and the scope of the matter submitted for examination by this Court.
The procedure provided for in Article 95.2 of the Constitution attributes to the Constitutional Court the double task of preserving the Constitution while guaranteeing the security and stability of the international commitments undertaken by Spain. As supreme interpreter of the Constitution, the Court is called upon herein to deliver its opinion concerning possible contradictions between the Constitution and a Treaty whose text, although final, has not yet received the assent of the State (Article 78.1 of the Organic Law of the Constitutional Court). If this doubt as to its constitutionality were to be confirmed, the Treaty could not be ratified without a prior constitutional amendment. In that regard, the procedure provided for in Title X guarantees the supremacy of the Constitution, while the part of the Treaty examined would acquire full legal stability, given the binding nature of the Court’s Declaration (Article 78.2 of the Organic Law of the Constitutional Court), which is the purpose of this preliminary examination.
Although in any event the supremacy of the Constitution is ensured by the possibility of appealing (Articles. 27.2.c, 31 and 32.1 of the Organic Law of the Constitutional Court) or the lower courts’ questioning (Article 35 of the Organic Law of the Constitutional Court) the constitutionality of treaties once they have become a part of the internal legal system (Article 96.1 of the Spanish Constitution), it is evident that any possible declaration of the unconstitutionality of a treaty would entail a risk of disrupting the State’s foreign policy and international relations. The risk of a disruption of this nature is precisely what this constitutional provision seeks to avoid. This twofold purpose is, consequently, what must be borne in mind when interpreting both Article 95 of the Constitution and Article 78 of the Organic Law of the Constitutional Court with a view to determining the exact subject-matter and scope of our decision, and the role played therein by this Court and the entities with standing to request such a decision, as well as those with standing to be heard in applications filed by others.
With regard to this latter point, it must first be clarified that what this Court can be asked to deliver is a binding Declaration, not an advisory opinion; a ruling, and not a mere opinion based on law. This Court does not cease to be a court to occasionally be transformed into an advisory body by virtue of an application. Both applications of this nature as well as judges’ requests for a ruling concerning constitutionality express reasonable doubts in that regard, but what we are asked to do is not to resolve those doubts, but rather to issue binding decisions.
Therefore, although this proceeding is not necessarily contentious in nature, that circumstance does not imply a change in the Court’s position as supreme interpreter of the Constitution. As in other proceedings, the Court acts here as the adjudicating body that it is and, thus, its declaration may only be based on legal and constitutional arguments, which may or may not have been suggested by the applicant or other parties with standing to do so. Coherent therewith, the Court’s examination must be limited to comparing any of the Constitution’s provisions and the Treaty stipulation or stipulations that have been submitted for preliminary review, since Article 95.1 of the Constitution reserves exclusively for the Government and for one or both chambers of parliament the power to express such doubts concerning constitutionality, which the Court cannot pose or examine sua sponte since, as is the case with other constitutional procedures, it lacks that initiative and is bound by the constitutional principle of coherence. This is without prejudice to the fact that this Court may request new or additional information and clarification pursuant to Article 78.3 of the Organic Law of the Constitutional Court.
But in any event, whether the decision of this Court confirms the constitutionality of the questioned treaty provision or, to the contrary, declares it unconstitutional, that decision will have res judicata effects. Although the form that this declaration takes may not warrant its being classified as a “judgment” (cf. Article 86.2 of the Organic Law of the Constitutional Court), it is a binding judicial decision (Article 78.2 id.) and, as such, produces erga omnes (Article 164.1 in fine of the Spanish Constitution) all res judicata effects, both negative or limitative effects that would preclude bringing the matter concerned in the Declaration before the Court the again in another proceeding seeking a ruling concerning its constitutionality, as well as the positive effects of a preliminary ruling that oblige all public authorities to respect and comply with our Declaration. In that regard, if decided that a given stipulation is unconstitutional, the immediate direct enforceable effect would be that a constitutional amendment would be required prior to the approval of the Treaty.
2. Based on the above it is now possible to clearly identify the subject-matter of our examination and Declaration with regard to this application. The doubt concerning constitutionality submitted by the Government affects future Article 8 B, section 1 of the Treaty Establishing the European Economic Community (to which Spain acceded with the authorization of Organic Law 10/1985) as restated in Article G of the Treaty on European Union. The text of that precept as restated is as follows:
“Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in municipal elections in the Member State in which he resides, under the same conditions as nationals of that State. This right shall be exercised subject to detailed arrangements adopted before 31 December 1994 by the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament; these arrangements may provide for derogations where warranted by problems specific to a Member State”.
As stated in the Findings of Fact, the document in which the State Attorney submitted this application seeks a ruling concerning the compatibility of that precept with the provisions of Article 13.2 of the Constitution, which is requested and even examined in the application itself, in the form of a Resolution adopted by the Council of Ministers. Both in that presentation as well as the text of the application itself, the conclusions of the request for a ruling focus on three questions (section 4 of the Findings of Fact) that, nevertheless, require systematic clarification.
The applicant initially seeks an opinion concerning the constitutionality of resorting to the procedure provided in Article 93 of the Constitution, to determine its suitability and sufficiency for the purpose of approving the Treaty of Maastricht, and to later examine “if warranted” whether there is a conflict between the future Article 8 B, section. 1 of the EEC Treaty and Article 13.2 of the Constitution, as well as the correctness of the interpretation of Article 11 of the Constitution that the Government suggests in its application and by virtue of which, if the Court were to accept this interpretation, a constitutional amendment would not be necessary.
This proposal of successive and alternative requests is not acceptable. Pursuant to Article 95.1 of the Spanish Constitution, a provision that is generally applicable to all types of treaties, including those entered into under Article 93, “the conclusion of any international treaty containing stipulations contrary to the Constitution shall require prior constitutional amendment”. From the terms of this constitutional mandate it is sufficiently clear that the first decisive core question to be addressed in this declaration is to determine whether a conflict exists between the precept we are called upon to examine and Article 13.2 or other provisions of the Constitution since, only in the event that such conflict exists would it be necessary to investigate whether the provision of Article 93 or an interpretation of Article 11 would enable the State to assent to the Treaty of Maastricht without resorting to a constitutional amendment.
Thus, reversing the order of the questions posed by the Government, we must first examine any possible contradiction between the future Article 8 B, 1 of the EEC Treaty and the Constitution, and not only its Article 13.2 (the only precept cited in the Government’s application, since as indicated previously, it is the Constitution as a whole, and not only some of its precepts, that must be examined by this Court.
3. There are three constitutional provisions that may influence the extension of the right of non-nationals to stand as candidates in municipal elections: Article 13.2 that limits right of participation to Spaniards, Article 23 that recognizes the exercise of that right to “citizens”, and Article 1.2, by virtue of which “national sovereignty is vested in the Spanish people”.
A) Article 8 B, section 1, which is to be included in the Treaty Establishing the European Economic Community, will recognize that “every citizen of the Union” shall have the right to vote and stand as a candidate in the municipal elections of the Member State of which he is not a national, but in which he resides “in the same conditions” –the precept adds – as nationals of that State”. That provision, together with others in different sections of Article 8, defines the newly-created European citizenship that, without abolishing the nationalities of the EU Treaty Member States (as indicated in the “Definition of the Nationality of a Member State” included in the “Final Act” of that Treaty) partially overcomes the traditional national/alien distinction by creating a third status common to all.
However, it is clear that this limited extension of the right to vote and stand for election to those who are not Spaniards but who are EU citizens is only partially compatible with Article 13 of our Constitution, whose Section 2 affirms that only Spaniards are entitled to exercise the rights recognized in Article 23 of the Constitution “except in cases which may be established by treaty or by law concerning the right to vote in municipal elections”, a constitutional limitation that has already been underscored by this Court in its Judgment 112/1991 in which it is literally affirmed that “any possible exercise of that right is limited to the right to vote, not to the right to stand for election”. Thus, without prejudice to the aforementioned exception contained in Article 13.2 with respect to voting in municipal elections, and by virtue of these constitutional precepts, the right to stand for election cannot be extended by treaty or by law to non-nationals in any electoral process for election to Spanish public bodies.
The partial contradiction thus existing between Article 13.2 of the Constitution and the text submitted for our examination must therefore lead to the conclusion that this precept contains, at least in this point, a stipulation that is unconstitutional and cannot be ratified without a prior amendment of the Constitution, pursuant to its Article 95.1.
B) The second precept that could perhaps come into conflict with the future Article 8 B, 1 of the EEC Treaty is Article 23, and more specifically its second paragraph, which succinctly confers upon “citizens” the right of access to public office on equal terms, in accordance with the requirements set forth in the laws.
However, by referring to requisites to be set forth in a law, the wording of the precept makes it evident that the Constitution does not grant a right to hold public office, but simply prohibits the legislature from regulating that right in terms that are discriminatory since, as we have repeatedly affirmed, the precept in question is specific manifestation of the general principle of equality. Given that the prohibition against discrimination in that article mentions only “citizens”, it is obvious that it does not impose any prohibition with respect to extending the right granted by those laws to non-citizens, nor does it prohibit establishing different means of access to certain public offices or functions for citizens and non-citizens.
Therefore, with respect to the right to stand for election Article 23.2 does not contain any provision that excludes foreigners from access to public office and functions. In effect, Article 23 is not the precept in which our Constitution establishes objective limits with respect to non-nationals’ entitlement to fundamental rights. In our Constitution the relevant provision is not Article 23, but rather Article 13, whose first paragraph extends to foreigners the exercise of all public freedoms recognized in Title I of the Spanish Constitution in the terms set forth in treaties and in the law. Exception is made to this extension by the clause of Article 13.2 that excludes certain rights recognized in Article 23, which are in consequence restricted only to Spaniards. But this exclusion is not derived from the provisions of Article 23, which in itself does not prohibit extension by law or treaty of the rights set forth therein to citizens of the European Union. Therefore, it cannot be deemed that the provision of the future Article 8 B, 1 of the EEC Treaty contravenes Article 23 of the Spanish Constitution, making it necessary to resort to the procedure set forth in Article 168.
C) Nor is the proclamation enshrined in Article 1.2 of the Constitution contradicted nor affected by recognizing a given group or category of foreigners the right to stand as candidates in municipal elections. Without offering other considerations that are not warranted at this time, to support this affirmation it is sufficient to underscore that attributing to non-nationals the right to stand for election to representative bodies could only contravene the aforementioned constitutional provision if those bodies are ones that exercise powers granted directly by the Constitution and the Statutes of Autonomy and related to the sovereignty vested in the Spanish people. There is obviously no point in offering any further hypothetical observations, since it suffices to say that this is not the case with municipal elections, thus precluding any doubt concerning its constitutionality with regard to the provision examined herein.
In view of the above and having verified the existence of a conflict between the future Article 8 B, 1 of the EEC Treaty and Article 13.2 of the Spanish Constitution pursuant to its Article 95.1, our declaration could now be considered concluded. However, other interpretations put forth by the Government, which in its opinion would obviate this one, oblige us to offer an adequate response in that regard.
4. The Findings of Fact set forth the first of the arguments offered by the Government to propose a possible interpretation of the conflict between Article 13.2 and Article 8 B, section 1 of the Treaty Establishing the European Economic Community as restated in the Treaty de la European Union that would not require a constitutional amendment. Without reproducing those arguments here, what we must consider herein is whether pursuant to the provisions of Article 93 of the Constitution it is possible to proceed to ratify that precept of the Treaty on European Union without a prior amendment of the Constitution or, in other words, whether the aforementioned constitutional provision resolves or eliminates the conflict existing in this case between the Treaty and the Constitution.
In what is here most relevant, Article 93 provides that “by means of an organic law, authorization may be granted for concluding treaties by which powers derived from the Constitution shall be vested in an international organization or institution”, a provision that, as is generally known, enabled Spain to accede to the EEC (Organic Laws 10/1985 and 4/1986). The complexity of the “organic procedural” provision (Constitutional Court Judgment 28/1991, Conclusion of Law No. 4) to be considered here cannot be taken lightly. However, it must only be considered in connection with the provisions of Article 95.1 of the Constitution and, consequently, with a view to determining whether the organic law to which Article 93 refers is a suitable instrument for making an exception, as the Government’s text suggests, with regard to the limit that Article 13.2 imposes on the extension to foreigners the right to stand for election, whether it be by treaty or by law.
The answer to this question can only be that it is not.
Article 93 permits the attribution of “powers derived from the Constitution” and doing so will, and already has, resulted in a limitation or restriction in certain areas of the attributions and powers of the Spanish public authorities (limitation of “sovereign rights”, in the words of the Court of Justice of the European Communities in Costa/Enel, Judgment of 15 July 1964). However, in order for this limitation to be effective it is indispensable for there to be an actual grant of the exercise of powers (and not merely entitlement thereto) to international organizations or institutions, which is not the case with the provision at issue, since it does not attribute or transfer powers, but rather simply extends to non-nationals rights that, according to Article 13.2, cannot be granted to them.
The foregoing underscores that the content of the provision examined herein does not fall within the scope of Article 93. And this is without prejudice to the fact that Article 93 may be applicable with respect to other provisions of the EU Treaty, in order to authorize assent to the Treaty once the Constitution has been amended with respect to Article 13.2. It suffices to emphasize here that the provision under examination does not involve a grant of powers, but rather a direct undertaking of the Kingdom of Spain to accommodate within its own electoral system the extension of the personal rights set forth in the Treaty, which is incompatible with the provisions of Article 13.2 of the Constitution.
In other respects, Article 93 of the Constitution is likewise not a suitable instrument for circumventing or rectifying mandates or prohibitions contained in the Constitution, since that precept is neither a legitimate means for “explicit or implicit” constitutional reform nor, in coherence therewith, can that contradiction of constitutional mandates through the Treaty be considered as attributing the exercise of any powers.
That the former is as stated above does not require further explanation, since the literal sense of Article 95.1, applicable to all types of treaties, clearly prevent treaties from contradicting or contravening the constitutional provisions that justly limit the exercise of all of the powers conferred by the Constitution, some of which may be transferred quoad exercitium by virtue of the provision of its Article 93. Spanish public authorities are no less subject to the Constitution when they act in international or supernatural relations than when they exercise their domestic powers, and this is what Article 95 seeks to preserve, being a precept whose guarantee functions must not be contradicted or diminished by the provisions of Article 93. To the contrary, an interpretation must be sought to reconcile both constitutional provisions, which supposes affirming on the one hand that constitutional provisions cannot be contradicted without an express constitutional amendment (in the terms set forth in Title X) while also recognizing, on the other hand, that organic laws may authorize the ratification of treaties that, as already indicated, transfer or attribute to international organizations the exercise of constitutional powers, thus adjusting the scope of application but not the literal expression of the provisions that create and organize those powers. This is undoubtedly an effect that the Constitution envisioned and, as such, is legitimate, but this is unrelated to the effect of a direct textual contradiction between the Constitution and one or several provisions of a treaty. The hypothesis that a treaty may contravene the Constitution has been definitively excluded by Article 95.
In summary, by virtue of Article 93 the Spanish Parliament may transfer or attribute the exercise of “powers derived from the Constitution”, but it cannot dispense with the Constitution itself, contravening or allowing a contravention of its provisions, since not even the power of constitutional reform is a “power” whose exercise can be transferred, nor does the Constitution itself provide for its reform through any means other than under Title X, that is, through the procedures and with the guarantees set forth therein and through the express amendment of the constitutional text. This is the conclusion resulting from Article 95.1, and it is important to bear in mind that the possibility of establishing exceptions to constitutional mandates in treaties, thus violating the general binding force of the Constitution’s provisions, was proposed and then rejected during the constitutional drafting process (Article 55.3 of the Draft Constitution and, from a different perspective, Amendment no. 343 to the Draft Constitution presented in the Senate).
Thus, the foregoing suffices to dismiss the possibility that the contradiction existing between Articles 13.2 of the Constitution and 8 B, section 1 of the Treaty Establishing the European Economic Community, as amended, can be obviated by authorizing the conclusion of the treaty pursuant to the provisions of Article 93. It is clear that Article 8 B, section 1, which directly grants non-nationals the right to stand for election, does not transfer powers of any type, but rather grants personal rights and in order to do so, and in view of the literal wording of Article 13.2 of the Constitution, a constitutional amendment will first be required.
5. Thus, the conflict between the precept submitted for constitutional review and Article 13.2 of the Constitution cannot be circumvented by applying the provisions of Article 93. The same may be said of a suggestion contained in the application for the purpose of once again overcoming or circumventing the limitation contained in that precept and the corresponding requirement of a constitutional amendment by passing legislation in which citizens of the European Union are deemed as Spanish nationals “for the purpose of” standing as candidates in municipal elections.
Although the Constitution does not define those who shall be considered Spaniards (a task that Article 11.l leaves to the legislature), and although there is no uniform legal status for all nationals and a different status may be accorded different groups of foreigners, it is however quite clear that Article 13 of the Constitution contains imperative and unavoidable rules incumbent upon Spanish public authorities (Article 9.1 of the Constitution) concerning the recognition of the constitutional rights of non-nationals. As we have underscored, among those rules are those that reserve for Spaniards the entitlement to and exercise of specific fundamental rights, such as the right to stand for election examined herein, which cannot be attributed either by law or by treaty to those who are not Spaniards, that is, these rights that can only be conferred on foreigners by means of a constitutional amendment. In that regard, this constitutional limit would disappear –along with the binding force of the Constitution- if the interpretation suggested by the Government were to be accepted and implemented, enabling the legislature to “invent” ad hoc nationalities for the sole and exclusive purpose of circumventing the limitation contained in Article 13.2 of the Spanish Constitution. The legislature must obviously define which persons are Spaniards, that is, those who are potentially entitled to legally exercise rights within the legal system, and in that regard the Constitution does not impose any material guidelines. But the legislature cannot, without incurring in unconstitutionality, divide up or manipulate Spanish nationality, recognizing it only in certain respects for the sole purpose of granting to non-nationals a fundamental right that, as is the case of the right to stand for election, is expressly withheld from them by Article 13.2 of the Constitution.
The foregoing cannot be circumvented by the allusion made in the application to the use of legal fictions. A legal fiction is nothing more than a legal construct whose purpose, contrary to reality, is to cover in a previously-enacted law a situation that would otherwise be excluded from that provision, one of its defining notes being that it is not a suitable means for achieving what is legally impossible, such as amending the Constitution by means other than those procedures expressly provided for that purpose in Articles167 and 168 of the Constitution, which the legislature, being subject to the principle of constitutional supremacy, cannot in any way circumvent, either directly or indirectly through the exceptional and subsidiary technique of the use of legal fictions.
6. Thus, the conclusion that must prevail is that there is a conflict, which cannot be resolved by interpretation, between Article 8 B, section 1 of the Treaty Establishing the European Economic Community as restated in the Treaty on European Union and Article 13.2 of our Constitution, with respect to the part of the Treaty provision that recognizes the right to stand as candidates in municipal elections to a generic group of persons (nationals of other EU Member States) who are not Spaniards. The only means available at law to overcome that contradiction and to ratify or sign that treaty is, thus, the provisions made in that regard in Article 95.1 of the Constitution: the prior amendment of the that part of the Constitution prompting this Declaration. This amendment will have to remove the obstacle contained in Article 13.2 that prevents extending to non-nationals the right to stand as candidates in municipal elections.
From the foregoing it can be concluded that if the examined precept does not contravene another constitutional precept in addition to Article 13.2, the procedure for implementing the constitutional amendment envisioned in Article 95.1 should be the general or ordinary one provided for in Article 167. This final statement answers the last of the questions submitted by the Government.
In view of the foregoing, the Constitutional Court,
BY THE AUTHORITY CONFERRED UPON IT BY THE CONSTITUTION OF THE SPANISH NATION
1. That the provision contained in the future Article 8 B, section 1 of the Treaty Establishing the European Economic Community, as restated in the Treaty on European Union is contrary to Article 13.2 of the Constitution in that it attributes to European Union citizens who are not Spaniards the right to stand as candidates in municipal elections.
2. That the procedure for amending the Constitution that should be followed in order to render that treaty provision compatible with the Constitution is the procedure set forth in Article 167.
This Declaration shall be published in the Official State Gazette.
Given in Madrid on July 1, 1992.