Report from Spain


The Spanish Constitution establishes in its Title X (articles 159 to 165) the Constitutional Court as a constitutional Body to which it confers the task of preserving the supremacy of the Fundamental Law by judicial proceedings[1]. Constitutional provisions have been developed by the Organic Law No. 2/1979. This legal text has been modified 5 times and is being amended currently[2]. It was solemnly constituted under the presidency of the King on July 12, 1980 and its first decision was passed on August 11, 1980.


The Constitutional Court consists of twelve members appointed by the King for a period of nine years[3]. Four of the Justices are nominated by the Congress (lower house), four by the Senate (upper house), two by the Government and two by the General Council of the Judiciary[4]. Its president and vice-president are appointed by the King among its members, on the proposal of the full Court itself, for a term of three years[5]. Membership of the Constitutional Court is incompatible with any position of a representative nature and its members are independent and enjoy fixity of tenure during their term of office[6].

The Constitutional Court sits as a full Court (Pleno) as the general rule. It also sits as two different chambers (Salas, composed by 6 Justices each) to decide individual appeals for protection of fundamental rights. Those appeals, in fact, take 90% of the Constitutional Court efforts. The Section-sitting (each Sección is composed by 3 Justices) is nowadays only responsible to accept or to refuse those individual appeals for protection (recursos de amparo)[7].


The competences of the Spanish Constitutional Court are described in article 161 of the Constitution, but were in fact increased by the Organic Law by virtue of the article 161.1 d). Briefly, the Court is entitled to hear:
– Appeals against the alleged unconstitutionality of laws and regulations having the force of law.
– Individual appeals for protection (recursos de amparo) against the violation of certain rights and freedoms.
– Conflicts of jurisdiction between the State and the Autonomous Communities or amongst the Autonomous Communities themselves[8].

The Organic Law (article 161.1 d) added two new powers:
– Conflicts of competences between the constitutional Bodies (Government, Congress, Senate and General Council of the Judiciary)[9].
– Conflicts of jurisdiction lodged by local governments to preserve their competences[10].

The Judgments of the Constitutional Court have the validity of res judicata from the day following their publication in the Spanish Official Journal (BOE), and no appeal may be brought against them.

Judgment No. 222/2006. Appeal of unconstitutionality lodged by the President of the Government in 1997 against the salary increase approved by the Autonomous Community of the Basque Country in the interest of its civil servants (in the regional Money Bill) when the national Parliament passed the general “money bill” banning any pay rise for civil servants. What initially seemed to be another conflict of jurisdiction disguised as an appeal of unconstitutionality has been a very pedagogical decision where the Constitutional Court fixes the legal nature of the national and regional ministries (Ministros and Consejeros). The conclusion is that while the member of the national government (Ministros) and those of the regional ones (Consejeros) are included in what is called “Public Administration” (composed by “civil servants”) the presidents of both governments (the president of the national government and the president of the local one, in this case, called Lehendakari) are not. They enjoy, as the Constitutional Court implicitly recognizes, the common nature of political bodies and consequently are not included in the concept of “Public Administration”. The high court, therefore, annulled the salary increase of the members of the regional government (Consejeros) because they are part of the “Public Administration” but maintains the one operated in the interest of the regional president (Lehendakari), since this office is not included in that category. Ironically, another disposition of the national Money Bill expressly avoided any rise over the salary of the president of the national Government (and other constitutional Bodies), so the regional president’s salary was the only one that increased.

Judgment No. 240/2006. This is the first decision in a conflict of jurisdiction lodged by a local government (the city of Ceuta) to preserve its competences. This resolution deals with the legal nature of the so-called “autonomous cities” of Ceuta and Melilla[12]. The Constitutional Court rejected the consideration of those entities as Autonomous Communities. Nevertheless, it recognizes that “Ceuta and Melilla are municipalities with a special legal status, strengthened by comparing them with the general regime of local governments” (Legal Argument 4). This status implies a special legal framework with specific organizational structure, powers and economic regime.

Judgment No. 342/2006. In this decision the Constitutional Court settled an individual appeal for the protection of fundamental rights (recurso de amparo) where the plaintiff contested her dismissal arguing that she was fired for being pregnant, what constituted a discrimination on account of her sex. After a trial period, the woman got a contract for an indefinite period. Three months later, and only a few weeks after she communicated her pregnancy, she received a letter of dismissal. The company adduced several irregularities discovered in her department but could not proof the link with her work. Ordinary Courts declared the nullity of the dismissal but they did not find discrimination because of the irregularities discovered in her department. The plaintiff was nevertheless interested in the recognition of discrimination on account of her sex because it would increase the final amount of the compensation (severance pay plus damages).

The Constitutional Court declared that discrimination was indeed present. What is important about the Court’s legal reasoning is that it establishes that in such a case once some pieces of circumstantial evidence appear (in this situation, being fired after the communication of the pregnancy only a few months after getting an unlimited period contract), the burden of proof then falls on the employer. So it was the company’s job to demonstrate that the dismissal was fair and done without discrimination. And since this company was not able to prove that their actions were fair, the Constitutional Court finally accepted the plaintiff claims.

Judgment No. 38/2007.
This decision come from an appeal of unconstitutionality lodged by the High Court of the Canary Islands against some articles of the international treaty concluded between Spain and the State of the Vatican City about education and cultural affairs (signed January 3rd 1979) and the national implementation of rules[13]. Although in Spain no religion shall have a state character, “the public authorities shall take into account the religious beliefs of Spanish society and shall consequently maintain appropriate cooperation relations with the Catholic Church and other confessions”[14]. Following this constitutional mandate, the Government signed an international agreement with the Vatican City to regulate, among other aspects, educational and cultural affairs of the Catholic Church in Spain. The Executive have also signed local agreements with the national authorities of other religions, but they did not have the nature of international treaties. In Spanish public schools and high schools, Catholic religion (the main one) is offered as an optional subject of the curriculum and in a very few number of them (depending on the demand), Jewish, Islamic and Evangelical religion are also available. By virtue of the international agreement mentioned above, Catholic religion teachers are appointed by the Spanish education authorities at the local bishop’s proposal. The teachers are considered temporary civil servants and subsequently can be removed from their jobs by a bishop decision, who is competent to declare de “religious suitability” of those teachers.

This appeal of unconstitutionality comes from a plaintiff against the Public Administration arguing violation of the principle of equality, the right to privacy and, consequently, an unfair dismissal. A religion teacher with ten years teaching experience was appointed by the bishop of the Canary Islands. But, when it was time for the renewal of her contract, the bishop informed her that the contract would not be renewed. The reason alleged was that she was living with a man who was not her estranged husband. This situation was, from the bishop point of view, contrary to the catholic ethic and therefore she was not suitable to teach that religion anymore.

The defence of the State was that the international provision which would legitimate that situation may be unconstitutional. But the Constitutional Court estimated that in order to be appointed as a religion teacher (not only catholic), it is necessary not only to have cultural and pedagogical skills and competences, but also to demonstrate a personal behaviour in order to transmit certain values, and therefore it is to the officially recognized religious authority to approve or not this conduct.

The Constitutional Court concluded that if the local bishop is competent to propose the religion teacher, the public administration has to assume this proposal without the possibility of changing or interfering the religious authority will.

Judgment No. 68/2007. This was the first time that the Constitutional Court overrules a decree-law issued by the Government because of the inexistence of “extraordinary and urgent need”. The Spanish Constitution allows the Government to issue decree-laws, regulatory provisions having the force of law, under certain limits and circumstances. One of them is the “extraordinary and urgent need”. Traditionally, the Court had rejected any lawsuit against such a norm for this reason. However, in this case, the Constitutional Court analyses the question of law and concludes that none of the reasons put forward by the Government (international economic environment, new job opportunities or the situation of the labour market, e.g.) justified the use of this extraordinary legislative instrument[15]. It should be noted that the decree-law finally annulled was passed once the negotiations between the trade unions and the Government to reform the labour market failed. The Executive then issued the decree-law mentioned above and the trade unions and the opposition parties called general strike.

[1] In a recent decision the Constitutional Court distinguished between “supremacy” (of the Spanish Constitution) and “primacy” (e.g. of the Community Law). See Declaration 1/2004, Legal Argument 4 (Fundamento Jurídico 4). The text of the precedent decision can be found on (available only in Spanish). This Decision has been largely commented by Spanish scholars. However, for a case note in English, see Schutte, C. B., «Tribunal Constitucional on the European Constitution. Declaration of 13 December 2004», European Constitutional Law Review, vol. 1, 2005, pp. 281–292. For the theoretical implications of the consideration of the Constitutional Court as a constitutional Body, see the classic García-Pelayo, M., «El status del Tribunal Constitucional», Revista Española de Derecho Constitucional, vol. 1, 1981, pp. 11-34, where the autor assimilates the German (and Italian) doctrine of the Constitutional Court as a Verfassungsorgan (constitutional Body).

[2] The main change would consists on the modification of the individual appeal for protection (recurso de amparo) of the fundamental rights regulated in articles 15 to 29, including article 14 and article 30.2.

[3] See article 159.3, which adds that the Court itself is renewed by thirds every three years.

[4] See article 159.1. The Consejo General del Poder Judicial (General Council of the Judiciary) is a constitutional Body (some would say a “State organ”) in charge of guarantee the neutrality and independence of judges. It could be briefly defined as a corporate government body with administrative powers over the judiciary.

[5] See article 160 of the Spanish Constitution and article 9 of the Organic Law No. 2/1979.

[6] See articles 159.4 and 159.5 of the Spanish Constitution.

[7] The amendment law currently being discussed in the Senate, among other modifications, gives power to the Sections (Secciones) to pass by themselves the individual appeals. See note 3.

[8] The Autonomous Communities are the sub national entities in which Spain is divided, i.e., Spain is territorially divided (some scholars would say “composed”) into 17 Autonomous Communities, each of them has its own Parliament, Executive and Administration. They have a core of powers that are exclusive and others that are shared with the national Bodies and authorities. They can be assimilated to German Länder or even to Italian Regions.

[9] The Constitutional Court itself is obviously excluded. The amendment law currently in process of discussion would reformulate the article 4 of the Organic Law 2/1979 establishing specifically: “The Constitutional Court shall define itself the scope of its jurisdiction”.

[10] The first Judgment of the Constitutional Court resolving a case relative to that new competence is registered in this report.

[11] In 2005, the Spanish Constitutional Court registered 9708 appeals: 9476 of them were individual appeals for protection (the so-called recurso de amparo), 222 appeals against unconstitutionality, 8 conflicts of jurisdiction between the State and the Autonomous Communities and 2 conflicts of jurisdiction lodged by the local governments. On the other hand “only” 6339 cases were finally settled, so the Court accumulated a delay of 3100 cases (most of them, again, individual appeals for protection of fundamental rights). For more details, see the Constitutional Court Annual Reports, on .

[12] Located in the North of Morocco, these two enclaves belong to Spain. However Morocco claims its sovereignty over them. They enjoy a special legal status and, following the text of the Constitution, the cities of Ceuta and Melilla “may set themselves up as Autonomous Communities if their respective City Councils so decide”, but they need the approval of the Spanish Parliament (Cortes Generales) expressed in an organic law (5th transitional provision). However they finally set up as “autonomous cities”, a new and different category.

[13] The later Judgment No. 80/2007, lodged by the same High Court, is identical to this one.

[14] Article 16.3 of the Constitution.

[15] See Legal Arguments 7 and 8.

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