White Paper the National Transition of Catalonia

WHITE PAPER WHITE PAPER

THE SYNTHESIS NATIONAL TRANSITION THE OF CATALONIA NATIONAL TRANSITION OF CATALONIA

WHITE PAPER ON THE NATIONAL TRANSITION OF CATALONIA. TRANSITION OF CATALONIA. ON THE NATIONAL WHITE PAPER SYNTHESIS

www.catalangovernment.eu

White paper on The National Transition of Catalonia

Synthesis

Barcelona, 2014

First edition: September 2014. Cover design: Estudi Tere Guix Photography: Pedro Madueño and Rubén Moreno Editorial production: Autonomous Institution of the Diari Oficial and Publications Legal deposit: B 22481-2014 Summary

Deciding to win the future 6 Artur Mas i Gavarró, president of the Government of Catalonia The National Transition of Catalonia 9

Synthesis 15 1 The constituent process 17 1.1 Legitimisation of the process of self-determination 19 1.1.1 Self-determination in application of a democratic principle 19 1.1.2 Self-determination as the inalienable right of a national community 19 1.1.3 Self-determination as the last resort to remedy an unjust situation 20 1.1.4 Application in Catalonia 21 1.2 How to get there. The consultation on the political future 24 1.2.1 Arguments to legitimise the holding of the consultation 24 1.2.2 Legal strategies to call a legal consultation in accordance with internal law 25 1.2.3 The consultation within the framework of European Union law and international law 26 1.2.4 The implementation of the results of the legal consultation 27 1.2.5 Alternative routes if the legal consultation cannot be held 29 1.3 Second stage in the creation of the new Catalan State: From the consultation or plebiscite elections to the unilateral proclamation or declaration of independence 31 1.3.1 Scenario of collaboration 31 1.3.2 Scenario of non-collaboration 33 1.4 Third stage in the creation of the new Catalan State: From the unilateral proclamation or declaration of independence to the approval of the Constitution 36 1.4.1 Constitutional law on the constituent process 36 1.4.2 The constituent procedure 37 1.4.3 The interim systems 38 1.5 The Succession of Governance and Administrations 41 1.5.1 Legislative programme of the new State 42 1.5.2 Succession of regulations and the institutions that enforce them 43 1.5.3 Autonomous regional law and State law 43 1.5.4 Treaty and Supranational Law 44 1.5.5 The Succession of Administrations. Principle and techniques 44 1.5.6 People providing services to the Administration 46 1.5.7 Regime of the implemented administrative acts, the proceedings in progress and related information. 47 1.5.8 The succession of contracts 49

3 1.6 The distribution of assets and liabilities with the Spanish State 53 1.6.1 The legal framework 53 1.6.2 Public debt and obligations of the State 55 1.6.3 Assets and rights of the State 57 1.6.4 Historical, artistic and cultural heritage 57 1.6.5 Natural resources 58 1.6.6 Private property and debts 58 1.7 Quantitative variation in the budgets of the Generalitat, after the new Catalan State is achieved 59 1.7.1 Additional expenditure 59 1.7.2 Additional revenues 60 1.7.3 Fiscal surplus of the Generalitat 60 1.7.4 Considerations for the first few months 61

2 The organisation of Catalonia as a new State 63 2.1 Economics and Finance 65 2.1.1 Fiscal and financial viability 65 2.1.2 Monetary policy. The euro 65 2.1.3 Bank of Catalonia, the country’s own central bank 66 2.1.4 The Catalan Investments and Markets Authority 68 2.1.5 The Tax Administration 69 2.1.6 Customs service 72 2.2 Administrative authorities and structures of the new State 74 2.2.1 Competition and regulation authorities 74 2.2.2 Other administrative structures required by the EU 75 a) Rail transport, electricity and gas energy services and telecommunications 75 b) Financial system and economic and social policies 76 c) Justice, rights, freedoms and security 77 d) Education, culture, science and environment 78 e) Consumer protection 79 f) Foreign and security policy 79 2.3 Catalan Social Security 81 2.3.1 The Catalan concept of Social Security 81 2.3.2 Functional and organic aspects 82 2.3.3 Contributory pensions and sustainability of retirement pensions 82 2.4 The judiciary and the administration of justice 84 2.4.1 Organisation and jurisdiction of courts 84 2.4.2 Regulation of court procedures and language system 85 2.4.3 Pending processes and judicial executions 85 2.4.4 Provisional judiciary system of government 86 2.5 Law enforcement and defence 88 2.5.1 Defining elements of the new law enforcement system 88 2.5.2 Options and actions in the field of internal law enforcement 89 2.5.3 Taking on the civil protection and emergency management tasks guaranteed until now by the central government 90 2.5.4 International coordination with police forces 90 2.5.5 Options and actions in the field of international law enforcement 90 2.5.6 Operating model, bodies, contingents and organisation 91 2.5.7 Cybersecurity 92

4 2.6 Infrastructure: energy and water supply and information technology and communication 94 2.6.1 Power supply 94 2.6.2 Water supply 96 2.6.3 Communication and information technology 98

3 The relationship between Catalonia and Spain, the European Union and the international community 103 3.1 Cooperation between Catalonia and Spain 105 3.1.1 Cooperation models. Iberian Council or Catalan-Spanish Council 106 3.1.2 Regional cooperation: the Mediterranean Arc 108 3.2 Trade relations between Catalonia and Spain 109 3.3 Cooperation between Catalan-language territories 111 3.3.1 Criteria and proposals 112 3.3.2 Proposal to create a Catalan Language Agreement 113 3.3.3 Consolidation of the Ramon Llull Institute 114 3.4 Paths to Catalonia’s integration in the European Union 115 3.4.1 Legal conditions and requirements 116 3.4.2 Membership scenarios. Procedures to be followed 116 3.4.3 EU flexibility and pragmatism 119 3.4.4 Probabilities of application of the various scenarios 120 3.5 Alternatives to non-permanence of Catalonia in the EU or to a prolonged accession process 122 3.5.1 Bilateral agreement between Catalonia and the EU 122 3.5.2 Membership of the EFTA, the EEA and the Schengen Area 122 3.5.3 Free trade agreements and customs unions 123 3.6 Integration with the international community 124 3.6.1 Recognition of the new State 124 3.6.2 Incorporation of international law and treaties within the State’s domestic law 125 3.6.3 Membership of international intergovernmental organisations 125 a) Council of Europe 126 b) United Nations and its System 126 c) NATO and other international security agencies (OSCE, EU security structures, transatlantic relations and relations with the United States, etc.) 130 d) Other international institutions 132

5 Deciding to win the future

Catalonia is experiencing a decisive process direction. Fundamentally, it is the will that has as a country and a society. Like never before, been sustained and clearly expressed by we Catalans are holding in our hands the broad majorities of Catalans and their civil so- chance to decide on our own future. ciety, as demonstrated by the thousands and thousands of organisations which have joined Catalonia has always felt like a nation. For a the National Pact on the Right to Decide. But long time, it has striven to make this national the pact and a vast parliamentary majority are feeling compatible with belonging to a State also what provide coverage for the govern- that recognises its unique features. The im- ment of Catalonia’s action to allow Catalans to possibility of continuing along this pathway exercise their right to decide at the polls. has led the Catalan people to take to the streets and at the polls to express their desire The objective of this collective commitment to decide on their collective future and to do is to work together based on respect for the so peacefully, democratically and legally. legal framework in effect, and to rigorously define the future scenarios and the sense of “The Advisory Council on the Na- responsibility in taking decisions that will de- tional Transition has identified the fine the future of our country. crucial aspects in order for Catalonia to become a State of its own with full The excitement and hope of our country’s guarantees” chance to construct a new State that allowed everyone to unfold our vast potential, if that is For more than 100 years, political Catalanism what we choose, should not make us forget has intensely and constructively contributed that this process requires a rigorous, hon- to the political and economic progress of the est exercise of ascertaining the difficulties Spanish State, by participating and support- which we are facing, identifying the risks and ing all the major state decisions and submit- analysing the possible consequences of our ting proposals for an amicable fit within Spain decisions. which recognises its identity and facilitates its development as the economic engine of “We want to decide on our future, southern Europe. but we have to do so seriously and rigorously, aware of the pathway The 2010 Constitutional Court ruling against upon which we are embarking” the Statute of Autonomy approved by the people of Catalonia signalled the end of this stage And this is the job that the Advisory Council and the start of a new process defined by the on the National Transition has been perform- steadfast desire of the citizens of Catalonia to ing over the course of 15 months. Through decide on their own political future. 18 reports, the members of this Council have identified the crucial factors that our country The political process in which Catalonia is has to deal with in order to become a State of involved is possible thanks to the sum and its own with full guarantees within the interna- joint efforts of many wills walking in the same tional community.

6 “Catalonia has always felt like a nation. Like never before, we Catalans are holding in our hands the chance to decide on our own future.”

Artur Mas i Gavarró President of the Government of Catalonia

The presentation of these reports is a neces- creative, dynamic human talent that pushes sary step in the national transition roadmap us as a society and a culture; a country with across which our country is travelling. The a committed, socially conscious civil society. citizens of Catalonia must have the maximum information on the decisions and factors that Now is the time for each person to exercise should be borne in mind when building the their individual freedom based on their politi- future structures of the State in the event that cal and ideological convictions and especially the vast majority of Catalans decide that Cata- based on their personal and collective yearn- lonia should become a new State. ings and desires for the future. It is the time for them to draw conclusions and exercise their We want to decide on our future, but we have right to decide with full awareness and ac- to do so seriously and rigorously, aware of the ceptance of the responsibility that comes from pathway upon which we are embarking and knowing and having the utmost information to based on total respect for the divergence take decisions. and diversity of ideas, which are precisely the values that make us great and strong as We are a mature, responsible society, and a society. now more than ever we must move forward together and believe in ourselves, believe in our “Making Catalonia a new country capacities, which are many and diverse, and where everyone lives better, where unfold all our potential to reach as far as we the social cohesion and wellbeing of want to, and especially to retain our construc- people is guaranteed” tive spirit in order to make Catalonia a new country where everyone lives better, where With the same rigour with which we identify the social cohesion and wellbeing of all peo- the difficulties, we must also be aware of the ple are guaranteed. vast opportunity facing us in this new scenario. Catalonia has never before had such a This is our dream, and making it possible only presence in the world; we have a country with depends on our will. a potential that never stops growing in practi- cally all the productive spheres; a country with

The National Transition of Catalonia

Catalonia is poised at a crucial juncture in of being obsolete. After months of negotia- its history. More than three decades after the tion, and with a sweeping agreement among restoration of the Generalitat (Government of the vast majority of parliamentary forces at the Catalonia), the claims for self-governance and time, the new Statute of Autonomy was ap- national rights are being expressed with more proved by the Parliament of Catalonia on the vigour and more across society than ever. 30th of September 2005.

The institutions of the country, its political In June 2006, the Statute was subjected to a parties and its civil society have persistently referendum among the people of Catalonia, worked all these years to find a fit within Spain who overwhelmingly supported it. Once it had that would fulfil Catalonia’s legitimate national been approved and endorsed by the citizens, aspirations. In this entire time, Catalonia has it was sent to the Constitutional Court, which, managed to erect a political and administra- four years later issued a resolute ruling that tive structure that has turned the Generalitat not only cut back fundamental competences into the day-by-day backbone of its citizens’ and institutions in the development of self- public life. governance in Catalonia but also thwarted the national hopes and aspirations of an en- However, recent events, such as the Spanish tire people. Yet instead of standing with folded law on education, the attacks on our coun- arms, they took to the streets in droves in July try’s model of linguistic coexistence, the law 2010 to hold demonstrations under the slogan on market unity, the new state law that severe- of “We are a nation. We decide”. ly limits the autonomy of town halls and the suffocation of the finances of the Generalitat The November 2010 elections led to new wrought by the state institutions all spotlight parliamentary majorities. As the outcome of the excessively centralist vision and incon- the electoral mandate, the new government sistent process of recentralisation of compe- called for a new tax agreement that would tences and resources that the Spanish State put an end to the constant drain of resources is implacably applying. All of this casts doubt which meant an annual loss of eight percent on, or even casts a pall of crisis on, the real of Catalonia’s GDP. This tax deficit, which seri- meaning of the State of the Autonomies which ously hinders Catalan institutions’ leeway for the spirit of the 1978 Constitution captured in action, has prompted an overall loss in com- a consensual fashion. petitiveness in Catalan society and has trig- gered tensions in the provision of public ser- In February of 2004, the parliamentary com- vices to the people. mission that launched the efforts to write a new Statute of Autonomy was set up. It was The Spanish government once again refused set up with the goal of seeking new formulas any margin for negotiation on the tax agree- in the relationship with Spain, reinforcing the ment proposed by the Generalitat, which also national nature of Catalonia and furthering its had broad, diverse support in Parliament. This self-governance 25 years after the approval refusal was the main event that precipitated of the first Statute, which was showing signs the call for new elections.

11 The Parliament that emerged from these action of what is called the national transition new elections was made up of a clear major- process of Catalonia and have revealed the ity of the parties that had gone to the polls Catalans’ steadfast democratic will. under the pledge of the right to decide, the commitment to consult the people of Catalo- This will is also reflected in the establishment nia on their political future. This commitment of the National Pact on the Right to Decide, was made official with the legislative agree- which brings together the most representative ment between the two main parliamentary institutions in the country which are in favour forces and with the different parliamentary of the right to decide. All told, it encompasses initiatives that emerged from the Catalan more than 3,500 civil, civic, citizen, cultural, chamber. economic, social, union and business entities from all over Catalonia. In recent years, sweeping social support (as proven by the historical and huge popular During the investiture debate of the 10th leg- demonstrations on the recent Diades or na- islature, the president of the Generalitat se- tional holidays), political unity of action (as cured a commitment to hold a consultation of shown by the agreement reached by the vast the people of Catalonia regarding the coun- majority of political parties regarding the date try’s political and national future in order to of and question to be asked in the consulta- guarantee its economic, social and cultural tion scheduled for the 9th of November 2014) development and its survival, to strengthen and scrupulous respect for the legal frame- and improve its wellbeing. As a result of this work (with the approval of the law on non-ref- commitment, a government decree issued in erendum consultations and citizen participa- February 2013 created the Advisory Council tion) have shaped the process and political on the National Transition (CATN).

Plenary session of the Advisory Council on the National Transition.

12 The creation of CATN reflects the govern- • Report no. 7: “The distribution of assets ment’s desire to enlist the best legal and tech- and liabilities” (14 July 2014) nical advice to carry out this process, which • Report no. 8: “Monetary policy (Euro), must be based on the principles of dialogue Central Bank and supervision of the finan- and legality, with the goal of achieving the cial system” (14 July 2014) maximum consensus possible. CATN is made • Report no. 9: “The water and energy sup- up of prestigious individuals in the different ply” (14 July 2014) disciplines associated with the national tran- • Report no. 10: “The constituent process” sition process, and their participation on the (14 July 2014) Council has not entailed any monetary com- • Report no. 11: “Trade relations between pensation. Catalonia and Spain” (28 July 2014) • Report no. 12: “Regulatory and compe- Its composition was as follows: tence authorities and administrative struc- • Carles Viver Pi-Sunyer (president) tures required by the European Union” (28 • Núria Bosch i Roca (vice president) July 2014) • Enoch Albertí i Rovira • Report no. 13: “Integration into the interna- • Germà Bel i Queralt tional community” (28 July 2014) • Carles Boix i Serra • Report no. 14: “Judicial power and the ad- • Salvador Cardús i Ros ministration of justice” (28 July 2014) • Àngel Castiñeira Fernández • Report no. 15: “Catalan social security” • Francina Esteve i Garcia (28 July 2014) • Joan Font i Fabregó • Report no. 16: “The succession of govern- • Rafael Grasa i Hernández ance and administrations” (28 July 2014) • Pilar Rahola i Martínez • Report no. 17: “The internal and interna- • Josep Maria Reniu i Vilamala tional security of Catalonia” (28 July 2014) • Ferran Requejo i Coll • Report no. 18: “The fiscal and financial • Joan Vintró i Castells feasibility of an independent Catalonia” • Víctor Cullell i Comellas (secretary) (28 July 2014)

For almost a year and a half, this Council has As the outcome of CATN’s efforts, the govern- held 54 plenary meetings which were cap- ment is publishing this White Paper on the Na- tured in the more than 1,300 pages in the fol- tional Transition of Catalonia, which contains lowing 18 reports: first the series of reports issued by the Coun- • Report no. 1: “The consultation on the po- cil, and secondly a synthesis of these reports litical future of Catalonia” (25 July 2013) issued by the secretary of the Council. • Report no. 2: “The tax administration of Catalonia” (20 December 2013) In order to be able to exercise the right to de- • Report no. 3: “Cooperation relations be- cide, it is essential to also be able to guaran- tween Catalonia and the Spanish State” tee citizens’ right to know so that they have as (20 December 2013) much information as possible on the different • Report no. 4: “Internationalisation of the future scenarios that might occur. Thus, the consultation and process of self-determi- main goal of this white paper and its synthesis nation in Catalonia” (20 December 2013) is to provide rigorous information that contrib- • Report no. 5: “The information and com- utes to making the democratic process head- munication technologies in Catalonia” (20 ing towards the national transition of Catalonia December 2013) stronger by providing citizens as a whole with • Report no. 6: “The means of integrating the information they need to knowledgeably Catalonia into the European Union” (14 exercise their right to decide. April 2014)

Synthesis

1 The constituent process

1.1 Legitimisation of the process of self-determination

A defence of the process of self-determina- is regarded as a primary right of individu- tion must include the reasons that have led als in a regional collective, as long as cer- the majority of citizens and the government of tain contextual conditions exist, such as Catalonia to choose this pathway, with a series the facticity of the new State (economic, of solid principles that are acceptable to the political, etc.), the facticity of the previous different stakeholders in the international com- State, the fact that the rights of minorities munity (diplomats, governments, international are guaranteed and the fact that signifi- institutions and organisations) and that have cant international instability is not gener- at least the understanding if not the empathy ated. of the media and public opinion in other countries. 1.1.2 Self-determination The defence of this process is grounded as the inalienable right upon three main principles: self-determi- of a national community nation as a people’s exercise of the right to Here the right to self-determination is sup- democratically decide; self-determination as ported by the right to sovereignty which stems an inalienable right given the nature of Cata- directly from a given collective’s nature as a lonia as a nation; and self-determination as national community. the last resort to remedy a systematically unjust situation. Given the strength of democracy as a principle of political legitimisation, today the first These three principles are valid (for Catalonia) two principles tend to be combined to justify a and can be used at the same time, with some process of self-determination in two sequen- variation in emphasis, in the explanation de- tial steps: first, because of its status as a na- pending on the international audience. tion, as a national community is the ultimate repository of its sovereignty, and secondly, in 1.1.1 Self-determination in application of the democratic principle, as this application of a democratic community has the right to exercise this sov- principle ereignty.

Especially in liberal-democratic societies, self- This democratic argument has numerous ad- determination is justified almost intuitively, vantages. First, it is widely accepted in Cata- since it responds to the democratic principle lonia among its citizenry, and secondly, it has based on: successfully been used by the government, • The legitimacy of political authority based the Parliament and those in favour of hold- on the consensus of the governed, regarding the consultation. It also links up well with ed as a unit of collective decision-making the liberal and democratic consensus that (demos), and even a people’s ability to de- prevails in much of the world. It is supported cide to become this unit; and by an important doctrine which can primar- • The moral autonomy of individuals. Thus, ily be found in the ruling of the Canadian the right to set up an independent State Supreme Court. And it can be grounded in

19 the repeated declarations by the Parliament 1.1.3 Self-determination as the of Catalonia that it reserves the right to self- last resort to remedy an unjust determination. situation At the same time, however, it has several weak In accordance with this principal or line of ar- points. The first is conceptual. The second, gumentation, self-determination is defended more strategic in nature, primarily seems im- as the last resort to remedy serious, persistent portant for the stage that comes after the con- injustices that have not been solved within the sultation or for a process which rendered the existing political framework. Even though there consultation impossible. is not complete agreement on which situations might qualify as serious injustices, they are (in The first obstacle is that to be applied, the descending order of doctrinal agreement): democratic principle requires the sovereign • Massive human rights violations. subject to be defined. This subject, however, • Unfair military annexations and occupa- is not formally sovereign (this is the reason for tions, especially those that took place af- undertaking the self-determination process) ter the express ban on territorial conquest and therefore those who are against the con- wars in 1945. sultation often deny that Catalonia is a nation- • Violations by the central Spanish State of al community and fluctuate between claiming the aspirations of self-governance and in- Spain as the only nation or solely accepting ternal agreements on regional autonomy. the self-determination of each individual sep- These violations include the impossibility arately. This is less of an obstacle for Catalo- of reconciling (reasonable) demands for nia because the Parliament has made repeat- regional autonomy with the structure of ed declarations of sovereignty and it reserves Spain, and Spain’s (systematic) interven- the right to self-determination. It also has a tion and questioning of regional autonomy long series of surveys that show sweeping despite the formal agreements in place. majorities in favour of holding the consultation • When a national or regional minority is a in Catalonia and therefore, at least implicitly, permanent minority in a democratic State, recognising Catalonia as a unique political due to its status as a permanent minority, it subject. However, to strengthen the justifica- can never have guarantees that the majori- tion of why the consultation is being held now ty will honour the autonomous agreements. and not earlier (such as in 1978), it is advis- (This situation is related to – and might be able to add the argument of secession as the complementary to – the clauses in the pre- last resort. vious point.) The only possible remedy The second weakness is strategic. The ap- of this situation is changing the relations plication of the democratic principle, espe- between the majority and the regional mi- cially if there is no agreement with the Spanish nority until they become strictly equal by State, creates (or reinforces) an important in- granting the status of full sovereignty to the ternational precedent. Since it legitimises se- national minority. cessions without demanding an effort to jus- • The international community does not re- tify them, it lowers the cost of secession and quest (or require) any specific justification therefore increases the possibility of there be- for a people to self-determine: the only ing more secessions in the world. In a volatile thing needed is to fulfil the procedural re- international context, at least in some regions quirements contained, among other plac- of the world, the mere appeal to democracy es, by the ruling of the International Court may arouse concern or hostility among recog- of Justice dated the 28th of June 2010 nised States. (democratic, peaceful process). However, it seems reasonable to explain and justify

20 the consultation and political process in State, Catalonia is exercising the right to Catalonia. Thus, using the principle of self- self-determination as a last resort or solu- determination as the last resort or remedy tion first to achieve full national recognition (remedial-right-only secession) implies and the level of self-governance to which self-imposing a level of exigency that is its citizens inspire, and secondly to put an higher than the principles of democracy end to a situation of systematic fiscal dis- and national law. On the other hand, this crimination and linguistic and cultural vul- defence of the process of self-determina- nerability. tion has major advantages: it corresponds • The self-determination that aims to estab- with Catalonia’s historical and political ex- lish a sovereign Catalonia must be able to perience of exhausting all the other means guarantee political and legal rights that the of fitting within the Spanish State and with Spanish political system does not guaran- the motives expressed by the citizens of tee (and which has not consistently been Catalonia; it stresses Catalonia’s desire guaranteed even after the transition to to contribute to reinforcing international democracy). This sovereignty does not law and to making its (legitimate) process exclude the possibility of establishing con- of self-determination compatible with the federal mechanisms with Spain, however maintenance of a stable international sys- only on strictly equal terms. tem governed by predictable laws; and it • Historically, when Spain’s political circum- is added to the other two justifications of stances have allowed it, Catalonia has secession, namely the democratic princi- shown a steadfast desire to organise itself ple and a national community’s inalienable as a unique political community and to right to secede. recover its political and fiscal institutions which were abolished numerous times (in However, as in the case of the first two prin- 1714, 1923 and 1939). ciples, the argument of last resort also has • Historically as well, Catalonia has tried to weaknesses. First, there is not a complete combine this desire for autonomy with its consensus on the causes that legitimise self- integration into the Spanish State. The kind determination as a last resort. Secondly, the of solution used, either federalist or auton- party that uses it is responsible for proving omist, which has varied according to the (that is, it bears the burden of proof) the exist- historical period and political forces be- ence of the unfair treatment that justifies self- hind it, correspond to the usual solutions determination. used in different plurinational countries around the world, such as Canada, Bel- 1.1.4 Application in Catalonia gium, the United Kingdom and India. And they date back to at least the 19th century, According to the previous discussion, the dis- with the federative schemes of the First course of internationalising the process of self- Spanish Republic spearheaded by Cata- determination in Catalonia has to be organised lan politicians. in accordance with the following logic, which • In the last democratic transition in the combines the three main principles examined Spanish State, the 1978 Spanish Con- above in a chain of argumentation that stresses stitution (CE) stipulated mechanisms to self-determination as the last resort but in no give Catalonia (and other territories and way abandons the democratic principle and regions within the Spanish State) some the principle of national community: degree of political autonomy. However, as • After having systematically and unsuc- a result of the strategy of creating a broad cessfully tried to reconcile its national per- consensus to make the political transition sonality with membership in the Spanish possible, and to avoid confrontation with

21 politicians, the military and other sectors ministration has continued to intervene in of society that had collaborated with the all matters and powers of the Generalitat dictatorship and had considerable politi- (Government of Catalonia), even in those cal and coercive support to threaten the which are exclusive to Catalonia by na- entire political process at the time, the ture. As the Institute’s report indicates, “the Constitution was written in deliberately regulatory duplications [by the state and ambiguous terms with regard to the ter- regional legislation] take place indifferently ritorial organisation of the Spanish State. in both the spheres in which the Generalitat For example, article 2 CE used the terms has exclusive competences and in those in ‘nationalities’ and ‘regions’ to refer to which the competences are shared. the possible national communities in the • In order to remedy this situation of inva- Spanish State that wanted to achieve a sion of competences (and fiscal discrimi- certain degree of political autonomy, while nation), the Parliament of Catalonia, with it reserved the term ‘nation’ for Spain. The the support of almost ninety percent of the constituents did not list the autonomous deputies, approved a draft reform Statute communities and under no circumstanc- in 2005. The goal of the new Statute is to es did they specify which ones could be expand the Generalitat’s competences, considered nationalities. Likewise, they and primarily to try to avoid Spain’s inva- prepared a series of minimum authorities sion of these competences by using a text for the autonomous governments, while that is extraordinarily prolix and detailed, they also established open procedures and to resolve a systematic fiscal affront. through which the central government However, that text was emended consider- could delegate competencies. The con- ably by the Spanish Courts, and once ap- stitutional text did not establish the sys- proved by the citizens of Catalonia, it was tem of territorial financing. once again trimmed back by Spain’s Con- • The open nature of the Spanish constitu- stitutional Court in 2010. The Constitutional tion, in other words, its nature as an in- Court ruling not only fully deactivated the complete contract, has always made its improvements introduced by the Statute in specific application and implementa- terms of recognition of the national identity tion dependent upon whoever controlled of Catalonia and its language, its compe- the key institutions in the Spanish State tences (that is, the political power) and its (Courts, Executive and Constitutional financing, but furthermore by cutting back Court). the constitutional function that the Statues • In fulfilment of the possibilities ushered in had served until then, it stated that its pro- by the Constitution, in 1979 a Statute of Au- visions, especially those on competences tonomy was approved which gave Catalo- and finances, were not legally binding for nia some degree of self-governance. How- the Spanish legislature but instead simply ever, the implementation of the Statute was political pacts that did not limit the freedom slow and incomplete, largely dependent of the Spanish legislature to delimit the upon the correlation of forces in the Span- scope of its competences or to establish ish Courts instead of on strict implementa- its preferences in the sphere of finances. tion of the legal agreements contained in • The process of statutory reform and the the Statute itself. ruling by the Constitutional Court were • As examined in detail by the “Report on the most reliable proof that Catalonia had functional and organisational duplica- failed in its attempt to earn recognition tions between Spain and the Generalitat and a high degree of self-governance in de Catalunya” issued by the Institute of a truly plurinational State. What is more, Autonomous Studies (IEA), the central ad- they also prove that the citizens of Cata-

22 lonia, as a collective with its own territorial Spain’s budget action); Spain’s refusal to aspirations, are a permanent minority in negotiate a fiscal pact proposed by the Spain and cannot expect to get adequate Catalan political forces; and the decisions political and juridical guarantees within aimed at turning Catalan into an increas- the Spanish State. Using truly democratic ingly marginal language. mechanisms (in the strict sense of voting • In view of this situation, the only possible within the different state powers), the ma- remedy would be to give Catalonia the au- jority can modify and reduce the Generali- thority to veto any Spanish norms or inter- tat’s competences at any time so far as to ventions that harm Catalan interests. This render them trivial. veto power is precisely what exists in sov- • These are specific examples of the lack of ereign States. And it precisely to get this political guarantees in the current system: power that Catalonia has decided to initi- the tax deficit with Spain; the low volume of ate the current process of self-determina- public investment by Spain and its system- tion, once again as a last resort to remedy atic failure to execute the approved plans; an intrinsically unjust situation. the fact that, as the consequence of the • This process of self-determination is ulti- system of financing and budgetary proce- mately supported by a national commu- dures in the Spanish State, the principle of nity’s desire to exercise the principle of ordinality is violated (in the regional rank- self-determination as recognised by inter- ing of per capita income for period from national law (such as the United Nations 2000 to 2010, Catalonia went from being Charter and the pacts approved by the 4th in nominal per capita GDP to being 9th UN, as mentioned above) in a democratic, in available family income per capita after peaceful way.

23 1.2 How to get there. The consultation on the political future

1.2.1 Arguments to legitimise the The consultation is a democratic response to holding of the consultation a demand that has been made repeatedly by a rising sector of Catalan society and its politi- Calling a consultation on the political future of cal representatives. Catalonia is a key step in paving the way for a constituent process based on the claims of The consultation reflects liberal principles: civil society and the political decision of the It protects the individual and collective Parliament of Catalonia. A clear, unequivocal rights of citizens. The consultation is a tool pronouncement from the people is needed so the citizens of Catalonia can express how in order to begin the process of transforming they want to protect and exercise their indi- Catalonia into a State in its own right, and a vidual and collective rights given the often ar- consultation has all the conditions needed to bitrary political, economic, linguistic and cul- be the means of expressing this pronounce- tural decisions to which Catalonia has been ment. and is being subjected by the central power and the Spanish institutions. The consultation on the political future of Cata- lonia itself contains a notable set of legitima- The consultation reflects egalitarian, in- cies: clusive principles. All citizens of Catalonia will be asked to participate in the consultation Historical legitimacy. The existence of Cat- regardless of their place of birth, sex, religion alonia as a unique national entity over the or ethnic group. All citizens will also be asked centuries gives it a high legitimised profile in to participate in the prior debate, where they historical terms compared to other cases in can inform themselves on the possible con- comparative politics. Having had its own state sequences of the alternatives posed, includ- institutions for centuries which had been elimi- ing the potential establishment of Catalonia as nated militarily, as well as its repeated desire an independent State, and to contribute their to be recognised in its national specificity and opinions and suggestions. to have broad self-governance – objectives which have never been achieved in a fair and The consultation is possible within the le- efficient way in its relations with the Spanish gal system today. There are very sound legal State in the last three centuries – are all im- arguments to defend that in the legal system portance sources of legitimation in the inter- currently in place there are five procedures national sphere as well. through which a consultation could be legally called so that the citizens of Catalonia can ex- The consultation reflects democratic, rep- press their political will on the future of Cata- resentative, civic and participative princi- lonia. ples. The consultation is a civil, participative practice that befits an advanced democracy The consultation is congruent with the in that it provides citizens from the national principles of plurinational federalism. One demos of Catalonia with the key decision-mak- principle of plurinational federalism is the vol- ing power on their collective political future. untary pact among different national institu-

24 tions, a pact that can be renewed according congruent with the political history of Catalo- to these institutions’ democratic majorities. In nia from prior to the aforementioned decrees. this sense, federalism is one of the four principles invoked by Canada’s Supreme Court – The consultation provides Catalonia with along with democracy, constitutionalism and international visibility and affirms it as a po- protection of minorities – in its famous ruling litical subject. The consultation places Cat- on the case of Quebec’s possible secession. alonia in the eye of international actors as a political subject with its own unique, distinct The consultation is natural within an ad- desires and decision-making capacity. Its vanced, cosmopolitan conception of de- conflict with Spain becomes visible. mocracy. The consultation is an exercise that is congruent with the values of cosmopolitism, The consultation has a very high degree which relativises borders, especially when of citizen support. From the specifically po- they have been imposed by force. litical standpoint, we should also bear in mind the considerable support for the consultation The consultation is functional: It makes it among the citizens of Catalonia. The figures possible to emerge from the current po- show that a vast majority of citizens of Cata- litical impasse. A consultation with a clear lonia support holding a consultation on inde- question and negotiations entered in good pendence. Specifically, around 75% of Cata- faith – as has happened recently in the United lans are in favour of calling the consultation, Kingdom and Scotland, or as is legally pro- around 20% are against it and around 5% are vided for in Canada – would not only allow the indifferent. will of the affected parties to be determined but it would also give rise to a new political 1.2.2 Legal strategies to call a and constitutional scenario, regardless of the legal consultation in accordance outcome of the consultation, that would break with internal law the impasse of the current political situation. After the Supreme Court ruling 42/2014, it has Citizen consultations are a common prac- become clear that citizens in an autonomous tice in the institutional sphere in democra- community can be consulted on their political cies. Since 1990, referenda on sovereignty future as long as the goal of the outcome is or independence have been held in Quebec, not to be binding and there are legal routes in Bosnia and Herzegovina, Slovenia, Estonia, place through which it can be held. Therefore, Latvia, Lithuania, Macedonia, Montenegro if Spain has political will, the Spanish legal and Scotland. Directly consulting the affect- system has five possible ways to consult its ed people is, therefore, a widely accepted citizens on their political future. democratic procedure for resolving this kind of situation, which enables it to be done in ac- They are: articles 92 and 150.2 of the Span- cordance with the international parameters ish Constitution, Catalan Law 4/2010 on con- of non-violence and democratic appropriate- sultations via referenda, the Law on Popular ness. Non-referendum Consultations and the Law Reforming the Constitution. The consultation is congruent with historical tradition and Catalan political culture. The legal routes that offer the most guar- Historically, Catalonia developed a legal cor- antees of constitutionality. Within the five pus reached through pacts that was grounded routes that can be taken, the ones that fit in the upon constitutions. Those constitutions were best with the Constitution are: article 92 of the nullified by the Nueva Planta decrees (1716). Spanish Constitution (CE) – especially if we in- Today, the exercise of the right to decide is clude the reform of the LORMR (organic law

25 regulating different kinds of referenda), as well consultation must be justified under the re- as the route outlined in article 150.2 CE, and, cent Catalan law on non-referendum consul- of course, constitutional reform, which can tations approved in September 2014 by the never be unconstitutional by definition. Parliament of Catalonia.

The legal routes that give the Generalitat and the citizens of Catalonia a more impor- 1.2.3 The consultation within the tant role and that speed up the process. If framework of European Union we bear in mind the criteria of giving the Gen- law and international law eralitat and the citizens of Catalonia a leading Legal procedures to call the consultation. role in calling the consultation and its imple- Neither EU nor international law contain any mentation, as well as the criteria of the maximum speed possible, these two goals are provision that calls for a procedure which the better achieved through the Catalan laws than Generalitat can use to call a consultation like through articles 92 and 150.2 of the Spanish the one being called for by the majority in Constitution or constitutional reform. Despite Catalonia. According to both international and this, we should not discount the fact that the EU law, this affair is regarded as an issue that use of the other routes also comes with an ex- must essentially be dealt with internally, within pression of grassroots support, either directly each State. (such as through the exercise of the right to Applicable rights and legal principles in EU petition) or through town halls and other local or international law. In these two legal sys- institutions (motions to support the consulta- tems, there are rights and principles that can tion). reinforce the legality or legitimacy of calling Conclusion from the joint perspective of a legal consultation or pursuing alternative constitutional guarantees, a prominent role routes. Examples are the democratic princi- for the Generalitat and the citizens of Cata- ple, people’s right to self-determination and, lonia and speed. From this threefold perspec- albeit at another level, the principle of protective, one possible solution would entail under- tion of national minorities. taking one of the two procedures provided However, none of these three rights and prin- for in the “Catalan legislation” which ensure ciples is justiciable in the sense that they speed, and one of the procedures “provided can be used before international or Europe- for in the Spanish Constitution”, such as the an legal institutions to declare the existence one outlined in article 92. This was the crite- of binding legal obligations by the Spanish rion expressed by the Advisory Council on the State or other States or international organisa- National Transition in its report “The consultations, if applicable. This is because first, the tion on the political future of Catalonia” which aforementioned three rights and principles was published on the 25th of July 2013. are contained in the legal instruments and However, the refusal of the Spanish Con- jurisprudence more as values and principles gress on the 8th of April 2014 to grant the than as rights in the strict sense. Secondly, Generalitat’s request for the ability to call a because there are no procedures either in Eu- referendum on the political future of Catalan rope or internationally that enable hypotheti- to be transferred to it, along with the Span- cal demands based on these principles to be ish government’s refusal to call any kind of channelled with the aim of requiring that legal consultation, have closed off the legal routes consultations be held or justifying the use of linked to articles 92 and 150.2 of the Span- alternative routes. Additionally, it should be ish Constitution. In consequence, given the noted that the Generalitat would encounter impossibility of using the other routes, the problems of legitimacy for posing legal de-

26 mands, and finally, the procedures that can be elections and more specifically at opposing used are almost exclusively not jurisdictional. any attempt to ban them by alleging that they are a violation of the purposes that elections Despite this, the fact that they are not justicia- should serve. ble does not mean that they cannot have legal effects. Specifically, in terms of holding a legal In any event, apart from these direct legal consultation, it is quite evident that these prin- effects, from the political perspective these ciples, especially the democratic principle, principles, and especially the democratic have significant legal effects as an ineluctable principle, may also lead to other less negligi- interpretative criterion when interpreting and ble effects, such as contributing to politically applying the articles of the Spanish Consti- legitimising the use of alternative routes other tution and the internal laws that regulate ref- than legal consultations, including a unilateral erendums and consultations through which declaration of independence (UDI) and the citizens can participate directly in political de- implementation other effects, including inde- cision-making. In other words, the principles pendence. They may essentially contribute of European and international law, especially to this while helping the fact that the use of the democratic principles, as contained in these routes and the implementation of these the internal system of article 10 of the Span- results cannot be considered internationally il- ish Constitution, require the public authorities licit. This is equivalent to saying first that the of the Spanish State to interpret the precepts Generalitat can solicit recognition as a new that regulate referenda and popular consulta- State in accordance with the rules and princi- tions such that, while respecting the principles ples that govern international laws, and sec- and rules that government the rule of law and ondly that States and international bodies may bearing the democratic principle in mind, they recognise the consultations and their results attain the utmost expansion of citizens’ rights without violating any international law, if this is to political participation, including the rights to their political decision. direct political participation.

With regard to implementing the results of le- 1.2.4 The implementation of the gal consultations, these principles, especially results of the legal consultation the democratic principle, may also have an The victory of a “yes” vote in a consultation extremely important effect in nuancing the with a direct question on independence merely consultative nature that the Constitu- Consequences for the Generalitat. tion attributes to this kind of referendum and • Even consultation. In this sense, we should recall though referenda and consultations are the ruling handed down by the Canadian Su- legally consultative, in a consultation with preme Court, which deduces from the demo- a direct question on independence, the cratic principle on which the Canadian Con- victory of a yes-vote (therefore, equivalent stitution is based that the Federations and to a double yes in view of the agreement Provinces are obligation to negotiate with signed by diverse Catalan political forces Quebec on its separation in the event that this on the 12th of December 2013) would gen- were the result of a referendum on the political erate not only undeniable political conse- future of this province. quences but also duties or legal consequences for the public authorities involved. These principles can also influence the rela- Specifically, the Generalitat would be ob- tionship with the pursuit of alternative routes ligated to present Spain with a secession and the implementation of their results. For plan. It could do so by presenting a con- example, the democratic principle plays a stitutional reform initiative or by suggest- decisive role in legally legitimising plebiscite ing direct negotiations with Spain apart

27 from the constitutional reform procedure. stitutional reform by not recognising its The first alternative has the political and outcome, it can be considered that a dif- legal advantage of scrupulous respect for ferent legal procedure must be pursued, the laws in effect; it has the disadvantage or perhaps due directly to underlying is- that Spain could block the process, which sues the problem that arises is essentially would require political solutions to be political, not legal, and it should therefore sought, or even international mediation, if be resolved by political, not legal, means needed. This would give rise to the possi- even though we should not discard the bility of embarking upon alternative routes, possibility of appealing to legal bodies, such as a UDI, in the terms outlined in the international ones if needed. Among the following chapter. If the Generalitat deems political means, resorting to international that the route of constitutional reform is not mediation might be important, such that adequate and that it may actually be fac- some States and/or international or suing a new constituent process, it may ask pranational agencies may be called on to for negotiations with Spain through a new act with Spain (and the Generalitat) to fa- process. However, in this case the doubt cilitate both the opening of the negotiation arises as to whether the formalisation of process and its implementation, given the the result of this process should or can be difficulties that might arise. Yet all this does done through the existing legal route (con- not exclude unilateral routes like a UDI as stitutional reform). Should Catalonia de- a last resort. cide to formalise it through a constitutional The victory of a “no” vote in a consultation reform, the problem lies in the final refer- with a direct question on independence endum, which would be compulsory and • Consequences for both the Generalitat binding, yet which would have to be held and for Spain. In the event of a victory throughout the entire Spanish State. of the “no” vote, in addition to the politi- • In any event, along with the start of the ne- cal consequences, the immediate conse- gotiation process with Spain, the Generalitat quence or effect would be that the Gener- would have to promote a series of actions alitat could not submit a proposal to create internationally and within the European Un- a State of its own and/or an independent ion aimed at attaining support for the ne- State, at least in the near future. However, gotiation process with Spain, including the we should bear in mind that this result can- provision for possible mediation, the ac- not be interpreted as an option in favour of ceptance and presence in the international maintaining the status quo, even if this is community, and the admission of Catalonia its immediate effect; naturally, nor can it be as a new European Union Member State or, interpreted as meaning that modifications perhaps, the determination of a specific sta- or reforms of the current model are ex- tus for Catalonia until its final adhesion. cluded for the future, as it cannot become Consequences for Spain. • From the stand petrified. This result of the consultation point of Spain, once the Generalitat pre- could prevent new reform projects from sents the secession project, it would be being initiated, and even new consultation obligated to open up a process corre- projects on the creation of an independent sponding to the route initiated by Catalo- State from being initiated after a reason- nia: the constitutional reform or direct ne- able amount of time. gotiation with the Generalitat, in this case by establishing a process that does not The victory of a yes-no vote in a consulta- currently exist. tion with a direct question on independence • In the event that Spain refuses to initiate • The report issued by the Council, “The this negotiating process or blocks the con- consultation on the political future of Cata-

28 lonia”, which was delivered and presented alternative route of plebiscite elections may be to the government in July 2013, did not the most appropriate way to ascertain the po- analyse the scenario of the double ques- sition of the Catalan people on their collective tion contained in the agreement signed political future. This kind of election is charac- by diverse Catalan political forces on the terised by the fact that, once elections for the 12th of December 2013. However, it did president of the Generalitat have been called, provide for the possibility that in a direct some political parties may decide to offer their question on independence, there may be voters Catalonia’s independence in their elec- references to Catalonia creating a State tion platforms or electoral campaigns as their of its own, and that in this event federal or sole or main goal, and this could take shape confederal formulas could be considered in the Parliament adopting a unilateral dec- (which would be understood as equivalent laration of independence (UDI) which would to the victory of the “yes-no” vote in view of emerge from the elections and be preceded, the double question agreed to by the con- if necessary, by an official declaration of the sultation on the 9th of November 2014). The start of the process of constructing a new implementation of the “yes-no” vote would State, as we shall analyse in the next chap- require a constitutional reform, most likely ter. The arguments of legality, efficacy and through the route of aggrieved reform. respect for the democratic principle can be evoked in support of the political legitimacy of plebiscite elections. 1.2.5 Alternative routes if the legal consultation cannot be held Unilateral declarations of independence. In theory, UDIs can occur as a consequence Consultations through voting held apart or culmination of plebiscite elections, which from the legal provisions of the Generalitat shall be analysed in the next chapter, with with the support of the town halls or private the goal of implementing their results. Or in- organisations and with the direct support stead, they can exceptionally be held prior of the Generalitat and town halls. These two to these elections, without discarding their kinds of consultations may enable us to ascer- subsequent ratification by a referendum with tain the desires of the citizens of Catalonia on popular consultation. UDIs do not fit within the their collective political future. However, they constitutional provisions currently in force, al- come with clear disadvantages, such as the though they are not necessarily in violation of clash with Spain if the first of these routes is any international law or practice. Nonetheless, taken, an easy campaign to discredit it by ac- the political legitimacy of UDIs after plebiscite tors and institutions against the consultation elections is based on the democratic legitima- owing to its futility (presenting as illegal and cy of the new Parliament which would result anti-constitutional), potential low or insufficient from these elections, held as an alternative voter turnout, a possible de-legitimisation of to the impossibility of holding a referendum the results (internationally as well) and logisti- or consultation and in the framework of total cal organisational problems. These disadvan- freedom to defend any option. UDIs which are tages seem to advise against implementing not the culmination of plebiscite elections can this alternative scenario. be considered politically legitimate if they are the outcome of Spain having prevented plebi- Plebiscite elections. If there is incontroverti- scite elections or having adopted attitudes ble evidence of the impossibility of holding the that block the implementation of the results of referendum or consultation on the independ- a legal consultation. ence of Catalonia through the legal routes outlined above as a result of the reiterated behav- Mediation procedures. Having reached a iour against it by the Spanish institutions, the practical impasse once the internal legal

29 routes have been exhausted, there is the pos- the beginning or end of the process. This has sibility of promoting mediation or, if needed, the advantage of internationalising the politi- arbitration by an international institution or or- cal claim underlying the proposal for consulta- ganisation (such as the United Nations) or a tion. However, in addition to the unlikelihood of European organisation (such as the EU). Both Spain accepting mediation of this kind, cou- parties would have to accept the procedure pled with the complexity of the entire process, based on agreed-upon rules and the legitima- this proposal has the essential disadvantage cy of the end result of the process. This could that it would foreseeably take a long time, giv- be one way to unblock the situation, which en the experience in other processes of this might or might not include holding a consul- kind. tation to ratify the proposed solution either at

30 1.3 Second stage in the creation of the new Catalan State: From the consultation or plebiscite elections to the unilateral proclamation or declaration of independence

The current process in which Catalonia is in- a scenario of no collaboration with Spain, or volved (calling for a consultation of its people even its refusal to negotiate the way to bring on the possibility of becoming its own inde- this will to fruition. pendent State) is characterised by being a demand that aims to express itself in strictly 1.3.1 Scenario of collaboration democratic, peaceful terms, and one which is occurring in a region that is part of a demo- The first possible scenario is collaboration cratic State that is also a member of the Eu- with Spain, in which both the Generalitat and ropean Union and the Council of Europe, Spain agree to faithfully negotiate the way to organisations which defend values such as bring the democratically expressed will of the democracy, freedom and the rule of law, and citizenry of Catalonia to fruition, in this case, which have mechanisms to guarantee that to establish its own independent State. This these values are respected. is the scenario which reflects a context of full democratic normality, and it is the scenario in As mentioned above, this means that the which the process in Scotland in relation to the case of Catalonia is quite unique, only hypo- United Kingdom is taking place, as both par- thetically comparable to Scotland and even ties had announced in advance, and perhaps, less so to Quebec. However, what makes it a if it reaches this point, the process in Quebec unique case compared to the others is that, with Canada as well, as called for by the Ca- at least until now, the Spanish State has been nadian Supreme Court in its ruling on the 20th opposed to the expression of the will of the of August 1998. Catalan people, essentially alleging reasons of legality in a sweeping sense. This attitude In the case of Catalonia-Spain, as noted in the means that we have to consider the possibility preceding chapter, this scenario could take of a different scenario than what is happening place by holding a consultation or plebiscite in Scotland (free expression of the will of the elections in which the citizenry of Catalonia people through a referendum, and should the would democratically express its desire to be- option of independence win, collaboration in come its own independent State, which shall implementing the result). be analysed below. This would give rise to a negotiation between the Catalan and Span- Therefore, if the citizens of Catalonia, through ish institutions to bring the popular will to frui- the means at their disposal, democratically tion. This negotiation would also serve, among expresses their political will to create a new other purposes, to prepare for the constituent independent State, this would open up a pro- process which would have to be launched cess to make this will come to fruition. This, after the creation of the new State in order to in turn, could essentially happen in two dif- fully institutionalise it. ferent scenarios: the first would be fully comparable to Scotland and Quebec and would Negotiation after holding a consultation. entail collaboration between the institutions of First of all, the negotiation could be undertak- the Generalitat and Spain to negotiate the im- en as a result of a consultation on the politi- plementation of this will, while the second is cal future of Catalonia in which this choice has

31 won, and in consequence, Spain agrees to democratic solution might also come from the negotiate to implement this result. Despite the European Union through a variety of means, fact that the consultation is not legally binding, since the Union would quite likely be interest- a result in favour of creating an independent ed in a quick, satisfactory solution to the situ- State should, under normal circumstances, ation for both political and, more importantly, lead to the opening of a negotiation process economic reasons. with Spain in order to bring the popular will as expressed in the consultation to fruition. That This second phase in the process would be is unquestionably the situation that best re- opened and closed with two prominent formal flects democratic normality, and it also paral- ceremonies. It would start, especially in the lels the cases of Quebec and Scotland (com- case of the plebiscite elections, with an offi- parable experiences which have approached cial declaration in favour of the creation of a the issue of the independence of a region that new independent State, and at the end would is part of a democratic State in fully demo- close with a proclamation of independence. cratic terms) and therefore the most desirable scenario. The official declaration would have to be issued by the Parliament (or the government Negotiation after holding plebiscite elec- with the support of the Parliament) after a con- tions. Secondly, however, there might also sultation, and especially after plebiscite elec- arise a scenario of collaboration with Spain if, tions. This declaration would have to be formu- should Catalonia be unable to hold a popular lated such that it offered Spain the opportunity consultation, Spain agrees to negotiate after to negotiate so that this process could be held an official declaration of the start of the pro- in a more orderly fashion with fewer risks and cess of creating an independent State after problems for all parties involved. Therefore, elections in which the political forces in fa- this declaration would have to contain an of- vour of this option have won the majority. With fer, which would also be a request, to Spain to this declaration, which might also occur after negotiate the separation process, including, holding the popular consultation, Catalonia’s if needed, an appeal for international or Eu- sovereignty would be affirmed and the Gener- ropean Union mediation and to make it pos- alitat would open the process to exercise this sible to open this process, carry it out in an or- sovereignty by asking Spain to launch the rel- derly fashion and overcome any hurdles that evant negotiations. might arise. The end of this process would be a proclamation of independence agreed upon Even though it starts from the fact that Spain with Spain and accepted by the international has not authorised or consented to holding the community. After that, the constituent process popular consultation, this scenario cannot be per se would get underway, which would lead wholly discarded, even though it seems para- to the approval of a Constitution for Catalonia. doxical. Indeed, the will expressed through elections – especially if the political forces in In this phase, Catalonia would continue to be favour of creating a new independent State part of Spain, and in consequence its legal win a sweeping majority – might make Spain system would still be applicable. Despite this, reconsider its position, especially because it we should inquire whether the preparation would be facing a de facto situation which had of independence through negotiations with occurred without its approval or consent, and Spain could or should entail some change in yet nonetheless it would have to find a demo- this scenarios in several spheres for reasons cratic solution that is respectful of the will ex- to be outlined below. pressed by the citizens, which is the appropriate approach to resolving political conflicts in This phase would have to essentially be char- a democratic State. The pressure in favour of a acterised by the preparation of the birth of the

32 new State of Catalonia, which would entail four by Catalonia towards becoming a State of its basic objectives: own. Spain has legal instruments to impugn • negotiating the conditions of the separa- before the Constitutional Court the Generali- tion with Spain; tat’s actions aimed at creating State structure • seeking international recognition; that surpass the framework of competences • negotiating the conditions for the new currently in place, as well as other actions State to join the European Union and other which the Catalan institutions may take within international agencies; this process which Spain might view as un- • and internally preparing for the creation of constitutional. If they come from the Spanish the new State. government, these challenges could lead to the automatic suspension of the actions im- In this phase of the process, Catalonia would pugned for at most five months, when it can continue to be part of the Spanish State, and be revised. Spain also has at its disposal the in consequence Spain’s legal and institutional instrument of article 155 of the Spanish Con- system would be applicable. However, this stitution to ask the president of the Generalitat legal-institutional framework applicable to and, if this request is not heeded, the Senate Catalonia would have to be modified with the to authorise by absolute majority the Span- goal of allowing the Catalan institutions to act ish government’s adoption of “any measures beyond the competences which the Constitu- needed to obligate it (the autonomous com- tion currently gives them in order to form the munity) to forcibly comply” with the legal or State structures needed to create and set the constitutional obligations which it believes new independent State into motion. It would have been violated or to protect the general be ideal if these provisions could be formal- interest which it views as infringed upon. In ised in an action protocol. this vein, there are sectors that have upheld that these measures may include interven- 1.3.2 Scenario of tion in some institutions and/or services of the non-collaboration Generalitat, and even the suspension of autonomy. In the event of an extreme reaction, Instruments of opposition of Spain. This we should not discard the possibility of Spain scenario can occur if after an official declara- resorting to the declaration of one of the ex- tion in favour of creating an independent State ceptional states called for in article 116 of the as the result of plebiscite elections, or per- Constitution, potentially in concurrence with haps after a consultation with a vote in favour another of the measures mentioned. of this option, Spain does not accept the offer to negotiate with the Generalitat. Limits to Spain’s opposition. Spain’s possible opposition does, however, have limits, in In this case, a political impasse would arise terms of both the means it may use and their with a very high potential outcome of institu- likely efficacy in the middle term. In fact, the tional conflict. It is difficult to precisely predict Spanish State could not adopt measures that how a crisis of this kind would develop and be entail a limitation, much less a suspension or resolved, but we can make several general observations on the matter. suppression, of individuals’ rights and freedoms beyond what is provided for in articles On the other hand, in a scenario of non-col- 55 and 116 of the Spanish Constitution. If this laboration, Spain’s attitude can have varying were the case, perhaps the European Union degrees of intensity: from a passive, non-bel- could even intervene through the mecha- ligerent position towards the actions taken by nisms provided for in article 7 of the Treaty of Catalonia to move the process forward to ac- the European Union aimed at ensuring Mem- tive, belligerent opposition to any movement ber States’ compliance with the values upon

33 which the Union is grounded. This enables the ing the process of negotiating with the Span- EU to react to serious violations or serious and ish State prior to the creation of the new Cat- permanent violations by the Member States, alan State in a scenario of collaboration, yet leading this State to be placed under obser- with the difference that in this other scenario vation and to the potential imposition of sanc- these structures will have not been able to be tions. On the other hand, forcible intervention adequately prepared with enough time and by Spain might pose very difficult and com- in a climate of normality. It is obvious that the plex problems involving their implementation, preparation and level of development of these which would rise in direct proportion to the state structures cannot be the same in each scope and length, which thus might notably scenario, but in order for a unilateral declara- compromise its efficacy. Likewise, we should tion or proclamation of independence to be note that it would be very difficult to suffocate effective, these structures must at least have the popular will and prevent it from being ex- sufficient entity and capacity to ensure that pressed in the future. Even in the extreme they can perform their basic functions. With- case of self-governance being suspended, out this condition, the new State could not be this suspension could not be indefinite, much born effectively. less permanent, and therefore the people’s will and the institutional will may be expressed The unilateral declaration or proclamation of yet again once autonomy and the normal independence, in this context, entails the de- functioning of the institutions resumed. sire to immediately disconnect from the institutions and legal system of the Spanish State On the other hand, regarding the Generali- in such a way that the authority of those insti- tat’s possibilities for action, once Spain had tutions and the ties with Spain are no longer refused and the political impasse merged, it recognised. From that moment on, the sole could try to force negotiations with Spain by public authority in Catalonia would be the appealing to a variety of actors (especially Generalitat, and the legal system applicable international ones, but also from civil society) would only be the one that emanates from the that could serve as mediators with Spain. The will of its institutions (including the interna- support of a mobilised civil society might also tional law that is internally recognised). How- prove to be a decisive factor for this objective. ever, proclaiming this will does not necessarily Should this pressure to negotiate fail, the alter- mean that it is truly effective, even less so if native left to the Generalitat to implement the it is done immediately and automatically. It is people’s will to create an independent State possible that at least for a time, there might be would be a unilateral declaration of independ- a conflict between the two systems such that ence. the authorities and systems of each of them may vie to impose themselves and gain con- The alternative of the unilateral declara- trol. For this reason, the effectiveness of a uni- tion of independence: conditions of efficacy. lateral declaration of independence is largely However, we must determine what the content conditioned by the existence of state struc- of a unilateral declaration of independence tures with the capacity to perform the govern- should be, when it should happen and how it ing functions over the territory and earn social could be formalised. To be effective, a procla- acceptance of their performance. mation of this type can only take place when the territory can be effectively governed. This Finally, we should note that the unilateral dec- means having the basic, indispensable state laration or proclamation of independence structures in place for this purpose, which must necessarily entail an end of the desire to are mainly those mentioned in the previous negotiate with Spain and redirect the situation section. Basically, therefore, this is the same towards the scenario of collaboration. Quite structure that should have been prepared dur- to the contrary, but always according to the

34 political circumstances, of course, the Gene In this context, the declaration or proclama- ralitat should be open to negotiations and, tion of independence effectively gives rise what is more, to continuing the efforts to to the constituent process directly, whose achieve the mediation, probably international, formal start would be deferred until after the that would allow this. referendum ratifying independence is held, if it is and if this option wins. The main dif- On the other hand, in any scenario of non- ference compared to the scenario of col- collaboration, if there has not been a prior laboration lies in the fact that the period of consultation it would be a good idea to hold negotiation with Spain would not exist, which a referendum to ratify the declaration or proc- would also be, as discussed above, a period lamation of independence which has been of preparing for the creation of the new State produced. There are several examples of this, and the constituent process that must then and this option should be born in mind ac- get underway. The lack of collaboration with cording to the circumstances at the time. The Spain will hinder – in direct proportion to the possibility that the declaration of independ- degree of belligerence it shows – the tasks ence itself could contain a commitment to hold of preparing for this process. However, these a ratification referendum as soon as possible difficulties should not hinder a minimally suf- could also be considered. Should this ratifica- ficient preparation and, more importantly, it tion referendum be held, regardless of wheth- should prevent all the acts and steps needed er it is announced prior to the proclamation to launch and develop a constituent process of independence or not, it should take place that abides by the highest democratic stand- before the constituent process per se begins. ards from taking place.

35 1.4 Third stage in the creation of the new Catalan State: From the unilateral proclamation or declaration of independence to the approval of the Constitution

Starting at the time when the proclamation of f) the interim relationship with the Spanish independence, in any of the scenarios men- State tioned above, takes place, there will be a for- g) Catalonia’s relationship with other States mal detachment from the Spanish legal sys- and supranational and international tem and the actual constituent process will get agencies (expressing Catalonia’s desire underway with the essential goal of providing to respect international law and to join the new State with a constitution. Certainly, in the agencies that organise the interna- a scenario of collaboration, this detachment tional community, and in particular to becomes effective when it is agreed upon continue participating in the process of and formally declared, while in a scenario of European integration and to be a mem- non-collaboration tensions and conflicts might ber of the European Union). arise that make this detachment more prob- lematic and blurry, precisely because the par- 1.4.1 Constitutional law on the ties may vie to impose their authority and ap- constituent process ply their legal system. The legal instrument to regulate the afore- Generally speaking, however, after this proc- mentioned issues related to the constituent lamation is issued, a constituent process process and the interim regime of the institu- should get underway (with the possibility, as tional and legal system of Catalonia can only mentioned above, of preceding it with a refer- be a law passed by the Parliament of Catalo- endum to ratify independence, if it was unable nia. Due to its purpose and content, this law to be held before) with the goal of institutional- would act as an interim Constitution and could ising the new State. be presented as an interim constitutional law. Its constitutional nature entails asking that this From that time on, the process of writing and law be approved with the broadest majority approving the Constitution and the regulatory possible, even if it is not strictly necessary in framework to be applied until the Constitution legal terms. enters into force must be regulated, and the interim regime must also be determined until Indeed, in legal terms no special majority a complete Catalan legal system is in place. would be needed to approve this law, since In particular, this regulatory framework should the current Statute naturally contains no pro- regulate: vision on a law of this kind. Nor would it be a) the institutional system of Catalonia possible to challenge it, both because there b) the interim system of individuals’ rights would be no body in which to do so and be- and freedoms cause there would be no parameter of consti- c) the interim system of nationality tutionality to control it. This law would be an d) the interim system on the use of languag- act within a new, original constituent process es which would not be subjected to any previ- e) the system of succession from the Span- ous procedure or to any special majority. De- ish legal system currently in force to the spite this, as stated above, to reinforce its po- Catalan system litical legitimacy it would be recommendable

36 that it be approved by the broadest majority laws (the ones in force at that time) are fully possible. democratic facilitates this step and advises against making specific changes for the The interim constitutional law of Catalonia occasion, beyond those that are strictly would not have to be an especially exten- necessary due to the detachment from the sive law which exhaustively regulated all the Spanish system (primarily related to the ad- matters which would pertain to it in theory. In ministration and election guarantees). many of them (such as the institutional sys- ––Elections called in this way should be tem, fundamental rights and others) it would exclusively constituent in nature, even refer to the norms that currently exist and are if the functions of the new Parliament in force in Catalonia (such as the Statute of should not be limited to drawing up a Autonomy, the European Human Rights Con- Constitution; instead, it would also have vention and even the Spanish Constitution), to take on the duties of an ordinary leg- introducing only the changes or adaptations islature. that were needed. The possible combination ––These exclusively constituent elections between new regulation, adaptation and refer- can only be omitted if the plebiscite ral to regulations will be thoroughly examined elections have been held shortly before below with respect to each of the matters that the proclamation of independence. In this law should cover. this case, largely according to how the plebiscite elections turn out, the Parlia- 1.4.2 The constituent procedure ment can be allowed to start the process of drafting the Constitution of the The constituent process must be regulated ex new State after the proclamation of in- novo as there is no regulatory framework cur- dependence. Despite this, the possibil- rently in force that could be applied to it. The ity of holding specific, exclusively con- comparable precedents are not determinant stituent elections should be carefully either, beyond showing certain features need- considered from a political standpoint, ed to deem that the process is being con- as this is unquestionably the most ap- ducted according to fully democratic criteria. propriate way to launch the constituent Some of the elements that shaped Spain’s process. constituent process in 1977-1978 could also • The constitutional initiative. Once the be taken into account. Nonetheless, what is in- constituent elections have been held, the deed decisive is that this process can be held Parliament has to draw up a Constitution. in accordance with the democratic standards The initiative to start its way through the currently in place, which should provide it with Parliament can be planned in favour of the maximum legitimacy both at home and both the government and the Parliament, abroad. although it is more recommendable that Based on this criterion, the basic elements of it comes from the Parliament under the the constituent procedure should include: guise of the proposal for a joint meeting • Constituent elections. The first step in with the participation of all the parliamen- the constituent process should be con- tary groups. stituent elections. These elections should • Processing through and approval by be called immediately after the proclama- the Parliament. The processing and es- tion or declaration of independence in ac- pecially the approval of the Constitution cordance with the election laws in force at should be as stringent as possible, pro- the time. Any change in the election laws cedurally speaking. Thus, its processing might generate suspicion and contaminate through a joint paper, the approval of the the constituent process. The fact that these ruling in committee and finally the approv-

37 al of the plenary of the Parliament must all 1.4.3 The interim systems be planned. There is no predetermined majority to approve the Constitution in It is recommendable that the transitory interim the Parliament. In theory, this issue could set-up of the institutional and legal system of be the subject of a decision in the interim Catalonia which is included in the interim con- constitutional law. However, in this sense stitution law be inspired by two basic general we should note that despite the fact that it criteria. The first is to grant the maximum jurid- would clearly be wise for the Constitution ical security possible by establishing a calm, to be approved by a sweeping majority, we easy transition of ordinances. Secondly, the should also carefully assess the possibility content of the future Constitution and the deci- of including a demand for a supermajority sions by the new powers established through in the interim constitutional law, since, as this Constitution should not be prejudged. mentioned with regard to this law, the ap- This means acting according to a certain prin- proval of the new Constitution will not be ciple of continuity with regard to the previous subjected to any pre-established major- ordinances, although naturally we cannot ex- ity as it is a new, original constituent act. pect the pre-existing situation to remain ab- Thus, it is not necessary for the interim solutely unaltered in all respects. The detach- constitutional law to require a qualified or ment from the Spanish institutional and legal special majority for the Constitution to be system will allow all decisions on the different approved. Weighing all the circumstances matters to be taken as deemed most suitable, with the goal of fostering consensus on the such that this would essentially entail an atti- fundamental rule, we could consider ask- tude of self-restriction among the Catalan in- ing for a supermajority (absolute) to ap- stitutions, which would prioritise security and prove it in the Parliament. In any event, the would avoid compromising the content of the ratification referendum to which it must be future Constitution and the policies of the new subjected is what provides the democrat- public powers that emerge from the elections. ic legitimacy to the Constitution, beyond Institutional system. The institutional system the parliamentary majority which has ap- of Catalonia provided for in the 2006 Statute of proved the draft. Autonomy can essentially remain intact on an • Formulas for citizen participation. For- interim basis and only a few adaptations need mulas for direct citizen participation must to be introduced, some of which would be au- be included in the process of drawing up tomatic (especially regarding limitations on the Constitution, including through remote the competences of the Catalan institutions, means, parliamentary hearings (with so- which would be eliminated without the need cial, professional, economic and cultural for any express declaration or provision), organisations) and others who may design while others would be necessary and yet oth- and be considered useful to strengthen ers convenient. the citizen participation in this process and endow the new Constitution with the Specifically, the necessary ones should be utmost citizen legitimacy. introduced expressly in the interim constitu- • Ratification via referendum. It is wholly tional law in order to fill the void left by detach- necessary for the new Constitution to be ment from the Spanish constitutional system. subjected to the ratification of the citizens Naturally, many voids will be created by this of Catalonia once it has been approved in detachment, but a decision could be made the Parliament. In this referendum, as is to only fill those that affect issues or elements common in all referenda of this kind, nei- that are strictly necessary for the new institu- ther a quorum nor any special majority tional system to operate, leaving the others for would be required. the time when the future Constitution and the

38 norms that implement it are approved. These course may be to include the recognised elements that must be regulated are: rights in the main legal instruments in force in • The figure of the Head of State, especial- Catalonia to date in the new institutional sys- ly in terms of the attribution of the role of tem on an interim basis, especially title 1 of supreme representation of the new State, the Spanish Constitution (especially article 10 both at home and abroad. It seems rea- and chapters II – rights and freedoms – and sonable to attribute this role to the presi- III – guiding principles of social and economic dent of the Generalitat on an interim basis policy, while adapting chapter IV on guaran- and to avoid creating a new institution, al- tees). The rights recognised in the European though naturally the decision taken by the Human Rights Convention could also be in- future Constitution should prevail. cluded, without the need to ratify them for • The judicial power, including both the or- the time being, as this ratification could be ganisation and competences of the legal delayed because of the need both to have bodies as the government of the new judi- the new Constitution and to wait for the new cial power of Catalonia. Constitution to be accepted in the Council of • The regulatory bodies. Even if they are not Europe. institutions per se, their existence means Nationality. The system of Catalan nationality that they should be updated in order to should be decided by the future Constitution ensure that the political, economic and and the rules that implement it, but it is neces- legal systems operate properly. Just as sary to regulate this issue on an interim basis these agencies are essentially part of the since it determines the personal element of the State today, there should be plans to cre- new State and the range of people that enjoy ate them on an interim basis or to attribute full political rights and can participate actively their functions to bodies within the admin- in the constituent process through suffrage. In istration. this sense, we should note that there are no • In terms of the suitable adaptations, they pre-established norms, but the principles and should be assessed according to the cir- criteria contained in the 1997 European Con- cumstances at the time. These possible vention on Nationality could be taken into ac- institutional adaptations might include the count, even if they have not been ratified or Council of Statutory Guarantees (to rethink, even signed by most European States, includ- if needed, its functions and the value of its ing Spain. rulings on an interim basis, especially with regard to control of the laws on the funda- The interim legislation on nationality might be mental rights and freedoms). Despite this, based on the rule of Catalan citizenship con- in virtue of the principle of continuity out- tained in the current Statute of Autonomy (ar- lined above, the most reasonable scenario ticle 7), which states that Spanish nations who would be to introduce the minimum chang- reside in a municipality in Catalonia for admin- es and await the new Constitution. istrative purposes are Catalan citizens. What is more, we should consider the possibility of Rights and freedoms. The interim consti- allowing everyone with a real tie to Catalonia tutional law should establish the provisions but who do not reside there at the time when needed to ensure people’s rights and free- independence is proclaimed to gain Catalan doms until the new Constitution enters into nationality. This implies at least two possible force. Given that the catalogue of rights con- extensions of the initial circle of Catalan na- tained in the current Statute cannot fulfil this tionals: first, Spanish nationals living in Spain purpose because of its incomplete, comple- who were born or who have resided in Cata- mentary nature with regard to the constitu- lonia, or who have a Catalan parent (or with tionally recognised rights, a good alternative Catalan ancestry up to the degree deemed

39 appropriate); and secondly, Spanish nationals With regard to foreign, non-Spanish nationals, living abroad whose residence for adminis- it should be noted that the Catalan laws must trative purposes has been Catalonia (or who adopt the appropriate provisions which should have lived there for longer than a given period be grounded upon the general criterion that of time) and their descendants, if they have these people can continue enjoying the rights kept their Spanish nationality; and others who they already have (especially regarding work have a Catalan parent or Catalan ancestors to and residence). the degree deemed appropriate. In these cases, Catalan nationality must be solicited by the Language system. The future Constitution interested parties. and the law that implements it would have to establish the language system. During the It would be worthwhile for Catalan law to reg- constituent period, however, the applicable ulate this matter based on the criterion that system until the new language system enters acquiring Catalan nationality is not condi- into force must be determined on an interim tioned upon giving up Spanish or any other basis. This system should be inspired by two nationality. We should expect the Spanish basic criteria: first, granting Catalan full rec- State to act reciprocally. In any event, given ognition and use in all spheres, and secondly, the transcendence and complexity of the is- keeping continuity in the uses of Spanish. This sue, which also affects European citizenship, would entail adopting the proper measures to it would be wise to reach an agreement on ensure that Catalan is a language of general, nationality with Spain as soon as possible ordinary use in Catalonia and keeping recog- that would regulate these issues in accord- nition of and the right to use Spanish. The ap- ance with the principles of the Convention plication of these criteria would mean adopt- and criteria of reciprocity. ing suitable measures, at least in the sphere of the public administrations (access to govern- Naturally, people living in Catalonia with non- ment jobs and language uses), the adminis- Catalan nationality would enjoy full civil, social tration of justice (especially providing places and political rights, with the exception – for and legal procedures) and education. These political rights – of those that are reserved for measures should also be accommodated to Catalan nationals (primarily the right of suf- respect the current system of Aranese, with- frage, especially in legislative elections, and out prejudice to any future developments that the right to hold a government job that im- might apply. plies public authority), without prejudice to any agreements that might be reached with The regulation of this series of systems and re- the Spanish State and the status applicable lations with the Spanish State, the European depending on their relationship with the Euro- Union and the international community shall pean Union. be analysed in the following chapters.

40 1.5 The Succession of Governance and Administrations

Until the constitution of the new independent well as any necessary adaptations to the new State, a full legal system will be in force in Cat- reality that may be required. In this respect the alonia that is applicable across the entire ter- existence of a new State necessarily means ritory. The existing legislation in Catalonia has that the law of another State, from which the a dual origin. On the one side, there will be new State has separated, can no longer be the legislation passed by the Catalan Parlia- considered applicable without a legislative ment and the autonomous regional and local act that declares the continuity of the law’s Catalan institutions, within the framework of application and validity, not as a result of the the competences established in the Spanish prior situation, but rather as a legislative act of Constitution and the Statute of Autonomy. On the new State. the other side, also underpinned by the text of the Constitution, there will be legislation de- The legal proceedings required to deal with rived from the central institutions of the Span- this issue must have two fundamental objec- ish State that are applicable in Catalonia in a tives: guaranteeing the integrity of the legal direct or supplementary way in accordance system and establishing the law in force in with the distribution of powers in the various Catalonia within the new institutional frame- areas. With relation to this last aspect, purely work derived from the creation of the inde- for illustrative purposes and without intend- pendent State. In this respect, as an initial ing to provide a comprehensive list, it is worth criterion, it will be necessary to act in accord- specifying here that the sectors of the legal ance with principles of legislative continuity system that are regulated by the legislation at and legal certainty. In other words, with the a state level include the legal regime of fun- necessary adaptations, the large majority of damental rights, the judiciary system, criminal the legislation in force at the time of independ- law, commercial law, employment law, proce- ence will continue to be in effect in the new dural law, general economic and credit legis- Catalan State. This legislative continuity will lation, and key areas of civil and administra- ensure the basic principle of legal certainty tive law. This dual origin of the current law in for citizens and the protection of their rights, Catalonia means that, when it is founded, the as well as responding to the reality of the cir- new State will have to rule on the validity of cumstances: It is impossible to replace an each of these two types of legal regulations entire legal system from one day to the next, because, despite their differences and own or even with months to plan the transition. For particular features, both share the same foun- this reason, this is not a reasonable expecta- dation - the Spanish Constitution, which will no tion given that, despite the political change of longer be a higher regulatory parameter in the sovereignty, the ordinary operation of social new independent Catalan State. and economic life will be based on the principle of continuity, without sudden disruptive The new State will therefore have to make a or revolutionary changes. This legal continuity legislative decision regarding the law that will also reinforce the will to ensure economic should be considered in effect in Catalonia, and social stability throughout the national both in terms of the applicable legal regula- transition process which guarantees people’s tions and institutions that must apply them, as rights and assets.

41 The technical approach to the issue of the 1.5.1 Legislative programme of succession of governance would be con- the new State ducted through the inclusion of a specific provision for this purpose in the Interim Con- This legislative programme will initially have to stitution Law. If the preferable solution de- be implemented within the framework of the scribed above were not immediately viable, regulations of the Interim Constitution Law and, for reasons of urgency, a provisional alterna- subsequently, within the framework of the de- tive may be the approval of an ad hoc law by finitive Catalan Constitution. In this respect, the the Catalan Parliament or even a decree law legislative programme will have to respect the by the Government that will later be subject character of the higher legal regulations of the to parliamentary approval. Subsequently, the constitutional provisions that will surely affect definitive Constitution of the new State, in a the applicability of the rest of the legislation. supplementary or interim provision, will all Within this context, the legislative programme need to make reference to the succession of must address the following regulatory require- governance in relation to applicable law at ments: perfecting the institutional structure of the time at which the new constitutional text the new State; the progressive approval of new comes into effect. Catalan laws that replace those implemented by the institutions of the Spanish State in any of The provision that regulates the succession of the various areas of legal governance in which legal governance must have at least the con- they may be required; the adaptation of the law tent proposed below: approved by the Catalan institutions before the creation of the independent State to reflect the “The state and autonomous regional legisla- new situation, if required. Logically, priorities tion that is in force in Catalonia on the date will need to be set in each of the general ru- on which its independence is proclaimed brics of this legislative programme, which the will remain in effect and applicable until its new Catalan State will have to define gradually is amended or repealed by legislation ap- based on the needs that arise from the new so- proved by the bodies of the new State in all cial and political reality. aspects that do not contravene the present Interim Constitution Law. Any references In the organisational plan, the preparation of made to the authorities and bodies of the the legislative programme could be undertak- Spanish State in the legislation shall be un- en by a research committee in the parliamen- derstood to refer to the equivalent Catalan tary of government headquarters which would authority or body”. include the presence of parliamentary groups, government ministers, legal services of the In short, this will involve the minimum regula- legislative authorities and executive bodies, tions in relation to the succession of govern- professional corporations, specialist institutes ance but, with clarity and legal certainty, will and the law faculties of Catalan universities. guarantee the applicability of the regulations The way in which this committee functions of various origins and the mechanisms for must be effective and flexible, so that it can their amendment or repeal, within the framework specifically by areas or topics of legal work of the Interim Constitution Law. The con- governance with the occasional collaboration tent of this provision does not exclude the fact of specialists in each particular field. that the Interim Constitution Law itself may also incorporate express references to certain Lastly, it should be noted that, in order to en- legislative validity, repeals or amendments in sure full respect for the principle of legal cer- particularly sensitive areas. tainty throughout the entire process of succession of governance and the progressive implementation of the new Catalan law, the

42 services of the Parliament of the Official Cata- replace agencies of the State with respect to lan State Gazette (DOGC), or a collaboration their regulatory, fiscal and penal functions, or, between the two, will need to draft charts of in other words, with respect to the application valid and repealed legislation in all sectors of laws of Spanish origin that apply in Catalo- of governance. These could be incorporated nia. as annexes to particular laws or other regulations, as well as drafting consolidated texts With respect to all other civil servants, au- of certain regulation in particular and compila- thorities and institutions with a headquarters tions of legislation according to topics. in Catalonia, the regulatory adaptation of the succession of governance and succession 1.5.2 Succession of regulations of States involves fewer problems. This could be defined as a question of staffing resources and the institutions that enforce as, in the case, for instance, of judges, mag- them istrates and public prosecutors, property and commercial registrars, judges in charge of the In this process of succession of States and civil registry, notaries, and labour and tax in- governance, it seems clear that the institu- spectors, among others, the civil servants and tions of the new Catalan state will directly as- officials required to apply the law in the new sume the functions that currently legislation State already exist and will continue to do so. assigns to certain institutions of the State, or Clearly, the people that perform these spe- these institutions will simply be abolished. As cific duties at the time of independence may such, the State Inspection Authority in the field take the personal decision to leave Catalonia. of education, for instance, would cease to ex- However, it must be assumed that substitution ist, as it would no longer have any sense, as would the Regional State Administration and mechanisms will be found in these circum- the sub-delegations of the government in Cat- stances and that the majority of civil servants alonia. Meanwhile, in the case of certain bod- will continue to perform their duties and will ies that do not have a headquarters in Catalo- oversee the application of the law declared to nia, a specific regulatory provision will need to be applicable. be adopted. In this respect, there is obviously no Constitutional Tribunal or Supreme Court in 1.5.3 Autonomous regional law Catalonia, or the General Judiciary Council, and State law the State Council, the Economic and Social Council, the Bank of Spain, the National Stock For the purposes of the conversion of the au- Market Committee, the National Market and tonomous community of Catalonia into a State, Competitiveness Committee, with their cor- the distinction that has been made to date responding regulatory powers, to give a few between State law and autonomous regional examples. However, Catalonia does have the law will no longer be applicable, as all of this Supreme Court of Justice, the Council for Stat- legislation will hold the status of Catalan State utory Guarantees, the Public Ombudsman, law. In other words, from the creation of the in- the Public audit Office, the Audiovisual Coun- dependent Catalan State, the law in force in cil of Catalonia, the Legal Advisory Commit- Catalonia will be unified, although there may tee, the Catalan Tax Agency, the Catalan Data be a period in which legislation of dual origin Protection Authority and the Catalan Compe- remains in effect (partly from Catalan institu- tition Authority, among others. In all of these tions and partly from Spanish institutions), until and similar cases, the institutions of the new such time as the legislation from the Spanish independent State will have to regulate which State is gradually replaced by new legislation agencies that already exist in Catalonia un- passed by the regulatory bodies of independ- der the legislation before independence can ent Catalonia.

43 The coexistence of concurrent pieces of legis- within an independent Catalonia could be im- lation regarding the same subject will have to plemented through a unilateral act of accept- be dealt with on a specific basis in the legis- ance or remission by the new State. lative programme of the future Catalan State. Within this programme, from the very begin- With respect to European Community law, the ning, express forecasts must be included in issue is more complex as, without entering into terms of the succession of governance in sev- the possible routes of Catalonia’s integration eral areas, with specific references to decla- into the European Union which is discussed rations of applicability and repeal, as well as in later sections, the law in force in Catalonia with respect to the legislative adaptations re- at the time of independence has two sources: quired in certain sectors. Within the framework European Union law and internal law (state of this legislative programme, the fragmented and autonomous regional law) which enacts historical background of the Catalan legisla- or transposes it. In the former case, the ap- tion derived from the institutions of the new plication of the regime would result from be- independent State will progressively have to longing to the European Union as a Member be eliminated, with the full integrity of the leg- State, with the application of all of the treaties islation being achieved from the moment it is and regulations. Meanwhile, in the second amended, probably simultaneously in certain case, the application would result from the areas, both in terms of legislation originating at State or autonomous regional legislation that an autonomous regional level and fundamen- has enacted the European Community direc- tal and general law coming from the Spanish tives throughout the years and declared to be State level. in force by the Interim Constitution Law of the new Catalan State and the subsequent regulations. Under these terms, part of European 1.5.4 Treaty and Supranational Community legislation would remain in force Law in Catalonia, along with the transposition legislation (State and autonomous community Laws arising from international treaties and level) that may exist, whereas the European supranational laws play a significant role in Community legislation that directly applies the legal governance currently in force in Cat- through legislation and other regulations of alonia, both in terms of the system of funda- the EU acquis, in principle, would not continue mental rights and freedoms and the economic in force, according to the same criteria that system. applies to international treaties and suprana- With respect to fundamental rights and free- tional laws of international organisations. In doms, it should be noted that, in principle, the any case, there would be nothing to prevent recognition established in international instru- the competent Catalan institutions from unilat- ments and treaties ratified by Spain will not erally pronouncing acts of acceptance or re- govern Catalan citizens in the new independ- mission, either partially or totally, in relation to ent Catalan State. In this respect, the applica- the aforementioned regulations of European tion of this legal regime regarding fundamen- Union law. tal rights and freedoms to Catalonia would require the ratification of the corresponding 1.5.5 The Succession of international instruments by the new Catalan Administrations. Principle and State, subject to another legal regime derived techniques from the succession of States with respect to the succession of treaties. In addition, the The basic principle that must be guaranteed incorporation of treaty law on fundamental in any responsible and purposeful process of rights and freedoms from the very beginning succession of Administrations is the “principle

44 of continuity of public services”, according such as respecting the active legal situations to which the process of substitution must be of citizens (freedoms, subjective rights and conducted without prejudice to the continu- legitimate interests) and the liability of the Ad- ity, regularity and quality of the set of public ministration for damages caused, whether this services provided to the general public. In is in the course of contractual or non-contrac- fact, the principle of continuity constitutes a tual relations. general principle applicable to both the regu- Configuration of the new Administration. latory field, in which the aim is to ensure that An independent State obviously has full lib- all the legislation required to resolve particular erty to configure its own Administration and, in problems is in place, and in the administrative terms of many aspects, it can be constructed sphere, in which the aim is to ensure that the from scratch. However, in the case of Cata- general interests identified and regulated by lonia, it is equally clear that a succession of this legislation is fully served. Moreover, in this Administrations would take place between administrative sphere, the maintenance and the Spanish State and the new Catalan State. continuity of public services is the very aspect These two elements mean that it would be that justifies the existence of a service organi- highly desirable for the Catalan State to have sation such as public Administration and the an agreement with the Spanish State within application of a single regime to this Adminis- a framework of cooperation in good faith be- tration, superseding private law, based on in- tween the two with respect to the transfer of stitutions, principles and techniques designed the Administration’s goods and rights of the to ensure permanence and stability (such preceding State to the Administration of the as the civil service, the public goods regime successive State and the establishment of and public procurement, among others). Ide- the regulations required to achieve an orderly ally, what this would mean is that an operation and successful administrative succession in such as the substitution of one Administration terms of all aspects that affect third parties by another is conducted without interruption (staff providing services to the administration, or any other type of disruption for the general contractors, private individuals who perform public that deal with or use the services pro- public duties, citizens that have proceedings vided by these Administrations. Achieving this under way or rights acknowledged by the Ad- objective, which is not at all simple, becomes ministration, relations with other Administra- even more complex when the public services tions or with other public and private bodies). are not directly provided by the responsible It would be extremely useful if this framework Administration, but rather they are commis- of cooperation and negotiation began during sioned by the Administration to a private con- the phase prior to the constituent process. In tractor or concessionaire. other words, the framework should be in place between the adoption of the decision in favour As well as this principle, which is clearly de- of creating the new State and the declaration signed to protect the interests of the general of independence. In this way, the initial set- public, it is also advisable to address indi- tling period of the new independent Catalan vidual rights and interests that may be directly State would be made significantly easier. affected in the event of a succession of Ad- ministrations, in accordance with the values Negotiating bodies. In order to establish and principals of the state of law. In particular, this desirable cooperative framework with it must be ensured that the Administration is the Spanish State, the standard procedure fully subject to that law, the principle of legal involves designating a high-ranking political certainty and some of its more significant ap- representative who, together with a represent- plications with respect to relations between ative of the predecessor State, establishes a the Administration and the general public, committee to execute the succession of the

45 respective Administrations. This committee duly negotiated in good faith and both parties must have an equal standing in terms of the must make every effort to implement them with- rank of the representatives and establishing in the shortest possible time and in accordance their regime and their operation. Instead of the with the agreed conditions. Within this frame- equal committee option, alternative organi- work, international supervision and mediation sational solutions can be considered that are cannot be ruled out if the representatives of most flexible and specially designed to tackle Spain do not cooperate in good faith. the various issues to be resolved in a specific process of succession of States. The scenario of non-cooperation. Recourse to international mediation must also be con- The usefulness of internal precedents (the ex- sidered for the hypothetical situation in which perience of the Mixed Committee of Spanish the succession of Administrations between State-Catalan Government Transfers) is unde- the Spanish State and the new Catalan State niable. However, it also has to be set within a took place in the eventual and undesirable relative context, as the objective of the succes- scenario of non-cooperation between the two sion of States is not a partial succession be- parties. In this respect, in a case of a disputed tween public Administrations, such as those secession, the negotiations for the succes- experienced in Spain in the 20th Century, but sion of Administrations between the Span- rather the total and universal succession of ish State and the independent Catalan State one Administration by another in the territory would have to take place within an internation- of the successor State. The objective is not al framework, and the resulting agreements political and administrative decentralization would have the status of an international trea- through the recognition of the autonomy of a ty. As such, non-compliance would result in part of the State, without prejudice to the unity international liability for the party in breach. In of this State, but rather the recognition of the such a context, Catalonia would have greater independence of a part of the State’s territory capacity to negotiate. However, the negotia- and, therefore, the effective attribution and tions would begin, in principle, subsequently recognition of its full sovereignty. The position to the secession taking effect, which cannot of the parties involved could not be the same be seen as positive for the orderly execution nor could solutions be adopted that presup- of the process of succession between Admin- pose the existence of a plural system of public istrations or for the legal certainty of the natu- Administrations as, by definition, the objective ral and legal persons affected, particularly the is to enable the separation or independence public administration staff of the predecessor of these Administrations. State who would otherwise be transferred to Based on this reasoning, the configuration of the successor State, contractors and conces- the negotiating bodies must be founded on dif- sionaires of this Administration, and for the ferent base to those established to date. In par- citizens who use the public services. ticular, all of the regulations applicable to the negotiation process must be adopted by mutu- 1.5.6 People providing services al agreement. The composition and operation to the Administration of the negotiation body (or the other organisational cooperation structures, if applicable) In Catalonia, the transition of an Administra- has to enable the maximum institutional bal- tion that is simply autonomous to the Adminis- ance between the two representative bodies. A tration of a sovereign State requires a number schedule and working plan should be agreed of significant questions to be addressed in re- and executed rigorously. All of the information lation to public sector workers. In particular, it available must be shared with the maximum will be necessary to address the need to have degree of good faith. The agreements must be new staff available to perform the new State

46 duties and, therefore the need to resolve the This conclusion is reinforced both from the situation of people who provide services to the perspective of the interests of the Catalan in- State within Catalan territory or who perform stitutions, which will be better able to ensure duties directly related to this territory. the services undertaken is they have experienced professionals, and the personal and First and foremost, it is obvious that it will not family interests of this collective, including a be possible to deal with the quantitative and great number of people in the case of profes- qualitative increase in functions that will ac- sional based in Catalonia who may have the company independence without having far political status of Catalans or have roots and more staff than is currently integrated within strong links in this territory. the Administration of the Generalitat (224,635 people), taking into account the fact that the The design of this staffing policy must take Catalan institutions will not only have to take into account the historical precedents avail- on the functions that the regional Administra- able, the heterogeneous nature of the staff who tion of the Spanish State in Catalonia, but also provide services in Catalonia, both in terms of all of the functions that it performs at a central their functions and the nature and legal regime State level. These new staffing requirements applicable to their links to the Administration, may generate public employment opportuni- the requirements of the human resources man- ties, particularly in the first few years, which agement in the new State. Above all, the policy will require the organisation of successive se- design must take into consideration the vari- lection processes to hire new staff. ous scenarios that may take place, in terms of whether or not the Spanish State cooperates Incorporation of staff from the current State when it comes to implementing the result of a Administration. In the event that Catalonia democratic declaration of the general public in has to address new staffing requirements, as support of the independence of Catalonia. we have just seen, it seems logical that a significant proportion of these requirements can be fulfilled with the staff that already provide 1.5.7 Regime of the implemented these services to Catalonia for the Spanish Ad- administrative acts, the ministration (approximately 30,000 people). proceedings in progress and For the Catalan Administration to take on the related information. competences that the Spanish Administration performed until the declaration of independ- As well as maintaining the Spanish State legis- ence, the resources in place to exercise these lation in force (with an interim nature and until competences and also the employees (civil replaced by legislation passed by the institu- servants, interim staff, permanent and tempo- tions of the new independent State), for obvi- rary employees) that the Spanish Administra- ous reasons of legal certainty, it will be nection had would need to remain integrated in essary to consider the maintenance of the the Catalan Administration. This particularly validity and effectiveness of the implemented refers to the staff that provided services to the acts of this legislation that affect the citizens regional Administration of the Spanish State in of Catalonia and which has been adopted by Catalonia, without ruling out the option of as- the Spanish Administration prior to the date on similating a proportional amount of the pub- which independence becomes effective, par- lic employees of the central State’s services ticularly in the case of acts that are firm in ac- within the Catalan Administration. This must cordance with the applicable legislation (i.e. always be based on the understanding that in all cases in which the affected individuals all of the employees’ free decisions to accept have not lodged administrative or legal ap- or reject the option of assimilation will be repeals within the corresponding period or have spected at all times. done so unsuccessfully).

47 This solution, which without doubt is the most rulings, as well as proceedings in progress reasonable from the perspective of legal cer- subject to enforcement of previous adminis- tainty and the protection of the rights acquired, trative rulings, will have to be considered as cannot have an absolute effect on Catalonia’s new and independent proceedings from the constituent power or the decisions of the con- previous circumstances and be transferred on stituted powers. Moreover, insofar as these de- an equal basis to the jurisdiction of the Cata- cision may affect the consolidated situations of lan authorities. In the case of administrative the individuals involved, it will be necessary to appeals, as their objective is to review a rul- make certain distinctions. In that way, sacrificing that has already been adopted, the regu- ing the rights and interests created could, in lations in force with respect to transfers state principle, be indemnified (in accordance with that the resolution of these appeals should the guarantees protected by legal institutions, be made by the Administration that made the such as compulsory acquisition or the Admin- original ruling, even though the final ruling will istration’s financial liability), while it would not have to be adopted after the transfer of the be necessary to indemnify cases that could particular function to the Autonomous Com- simply be considered expectations. Mean- munity. while, distinctions would also have to be made between the definition of rights by the new leg- However, this last regulation, the logic of islator (legal definition that could eventually which is still based within the context in which affect the powers inherent to each right more it was passed and has been applied, may be significantly), and the expropriation limitation replaced by another regulation that is better of rights which, as a means of suppressing suited to a case of succession of States, by rights, can only be considered legitimate if it which the resolution of the appeal would be were accompanied by the corresponding in- ruled by the new Catalan Administration. In demnity or compensation. any case, the determination of the applicable regime has to take into account the difficulty Administrative proceedings in progress. in applying uniform of general rules to such With respect to administrative proceedings a rich and varied reality as the relations be- that affect Catalonia and which are in progress tween the Administration and the citizens. In but, as yet, a ruling has not be made, the gen- particular, other aspects that should be taken eral rule will have be that the case is trans- into consideration include the processing sta- ferred to the Catalan institutions so that these tus of the proceedings, the legally established institutions can oversee its resolution. This timeframe for ruling on the proceedings in transfer will have to take place of the date on each case and the fact that the inactivity of the which independence takes effect, unless the Spanish Administration may be prejudicial to institutions of the Spanish State and the Cata- the new Catalan Administration (for instance, lan institutions agree a different date. In any in the case of the prescription of an action to case, as there is a set timeframe within which penalize illegal conduct or to demand pay- the legal ruling on these proceedings must be ment of taxes that have been disputed by the made, after which the effects of administrative taxpayer). silence (upheld or dismissed) come into force, these timing aspects must be taken into ac- Transfer of documentation. The succession count when setting the conditions or the date of Administrations also involves the transfer of of the transfer. Another aspect to be taken into all of the documentation related to the admin- consideration is the autonomous nature of the istrative records that are filed or open, all of proceedings linked to previous proceedings. which pass over to the jurisdiction of the new State. To provide greater guarantees and se- In other words, proceedings with challenged curity within the transfer of information, it is rulings or appeals lodged against previous usually necessary to draft a detailed inven-

48 tory and to formalize the transfer in an act of tions may lead to the sudden annulment of the submission and reception that is authorized contracts held or their termination or cancel- or signed by the competent authorities of lation. This would result in an obligation to in- both Administrations. This procedure has not demnify the damages and losses incurred by always been rigorously implemented in the the affected contractors and may have a sig- transfer process of State functions and servic- nificantly negative impact on the continuity of es to the Generalitat. In general, the obligation public services, as it would involve a consid- to transfer the administrative records covers erable paralysis of the construction projects in all of the files and registers in the possession progress, the provision of public services and of the predecessor State that affect or are re- the supply process of goods and services related to the territory of the successor State quired by the Administration and the general with the corresponding reference to the 1983 public. The new independent Catalan State Vienna Convention on the issue, as will be ex- could prevent all of these potential negative plained in later sections. consequences of the succession of contractual relations based on the understanding of 1.5.8 The succession of the complex of the specific cases involved in this phenomenon and by adopting the neces- contracts sary measures to deal with the situation.

The succession that must be effectuated be- Diversity of situations and contractual reg- tween the Administration of the predecessor ulations, and the specific cases of the ap- State and the Administration of the successor plicable solutions. The regulation of public State involves an obvious level of complexity contracts constitutes a particularly extensive, in the case of contracts signed by the former complex and rigorous section of the legal sys- with respect to the execution of its functions: tem, which was exponentially intensified when the appearance of a third party on the scene, Spain joined the European Community (known a legal or natural person, a designated con- today as the European Union), based on the tractor. By virtue of a bilateral legal negotia- will and determination of the State’s institutions tion held between with the Administration, the to guarantee the free movement of goods, ser- contractor has contracted certain obligations vices, capital and people. For the purposes (to provide or perform). However, they also of ensuring these freedoms and faced with a hold certain rights and, principally, the right significant economic reality such as the pub- to receive payment in exchange for the ser- lic contracting market, successive European vices provided to the Administration, whether directives have been passed to guarantee the directly, with payment from the Administration, principle of free competition and its essential or by charging fees paid by the individuals in- premises: advertising, freedom of access and volved. transparency.

The succession of contracts, therefore, in- The analysis of this regulation (which is prin- volves the special condition that it affects a cipally contained in the consolidated text of party other than the Administration of the two the Law on Public Sector Contracts, approved States. The contractor has rights acquired by Royal Legislative Decree 3/2011, dated and protected by the legal system and the re- 14th November, hereinafter LCSP) clearly sponsibility to act as a collaborator required highlights the complexity of this sector of the by the Administration in the performance of legal system, both in terms of the diversity the functions attributed to it. In this respect, if it of the subjects to which it applies (subjec- does not state its intention to the contrary and tive spheres) and the varied range of types suitable measures are not taken, the fact that of contracts that exist, In addition and above another Administration assumes these func- all, the sector is complex due to the fact that,

49 based on a set of principles and the regula- In terms of the objective aspects of contract- tion of general or common bases, the regime ing, a distinction must be made between ad- applicable to each contract has its own par- ministrative contracts and private contracts ticular and significant features depending on with the Administration. In the former case, the contracting public body, whether or not it further distinction must be made between exceeds certain economic thresholds and the standard administrative contracts and spe- field or sector to which the contract refers. cial administrative contracts. The preparation, award, effect and termination of administrative The multiple nature of these situations and contracts is subject to the LCSP and addition- contractual regimes represents an obvious ally by rest of the regulations of Administrative added difficulty when establishing the so- law and, it its absence, by the regulations of lutions applicable to the succession of the private law. The application of European leg- Catalan Administration in place of the Span- islation and the LCSP is more complete and ish State as the contracting party with respect clear when the contracts are subject to stand- to the contracts which affect Catalonia. This ardized regulation. This is the case of all col- situation may mean that these solutions can laboration contracts between the public and not be uniform or standardized in all cases. private sectors, and also in the case of all oth- First of all, it will be necessary to distinguish er standard administrative contracts, on the between contracts related to goods and ser- condition that they exceed certain economic vices entirely located within Catalan territory thresholds and that the contracting body and contracts that affect this territory but also holds the status of the contracting author- elsewhere. Moreover, the fact that the con- ity. Private contracts include those by public tracting Administration is the Administration sector entities, organisations and agencies of the State or a public body linked to it pre- that are not considered to be public Admin- sents as with various possible scenarios when istrations, as well as contracts held by public it comes to executing contractual succession. Administrations with particular objects, such This is both because of the different applica- as certain financial services, artistic and liter- tion of contract regulations between one set ary creations and performances, certain show of conditions and another, and because of the productions, subscriptions to regular publica- presence, in the second case, of a subject tions and databases, and all contracts other other that the State Administration, with their that the standard administrative contracts. In own legal personality and with a legal, finan- the case of drafting and awarding these con- cial and budgetary regime that is also differ- tracts, the same regime will apply as in these ent. In effect, within the bodies of the public last cases, but their effects and termination State sector, it will also be necessary to make are governed by private law. a distinction between the bodies that fall within the category of public Administration for the It should also be noted that the legal system purposes of Spanish contract legislation and applicable to the termination of contracts the bodies that do not. closed by the State and regulated by the LCSP varies considerably depending on the With respect to the companies awarded the type of contract, as the termination of stand- contracts, we also often find that, as well as ard administrative contracts is principally the basic case of a single contracted com- governed by the LCSP, while special admin- pany, there are other contracts executed by istrative contracts are governed by their own temporary associations of companies, with specific regulations and private contracts are the particular features of the concession com- subject to the regulations of private law. panies, and the common practice of subcon- tracting to other companies and the legal pos- However, these difficulties increase when we sibilities of the assignment of the contract. take into account the fact that not all contracts

50 are primarily governed by the LCSP There- its termination), but also the prior acts of draft- fore, it is necessary to take into consideration ing and awarding the contract. In addition, the the regulations contained in Law 31/2007, legal relations beyond the termination of the dated 30th October, regarding contracting contract must also be taken into considera- procedures in the water, energy, transport and tion, besides the state of consequences that postal service sectors, the object of which is arise from the jurisdictional processes that the regulation of the contract award proce- have been undertaken to resolve disputes dure for works, supplies and services in the generated by the contracted parties. case of contracts issued by certain public and private organisations determined in the same All of these considerations highlight the need Law and which operate in the aforementioned to be in possession of an inventory of the State’s contracts that affect Catalan territory, sectors and when the value of these contracts as well as the need to study each of the cat- exceeds the economic thresholds indicated egories of contract that are identified, as well by these and other contracts. Furthermore, it as the specific regime applicable to each of should be noted that the Law 24/2011, dat- the contracts. ed 1st August, regarding public sector contracts in the fields of defence and security and Meanwhile, the rights and obligations of a the rest of the areas defined in the LCSP as contractual nature fit without difficulty within “transactions and contracts excluded” from its the concepts of rights and obligations used scope (Article 4), which include agreements by international regulators of the secession of wills that are subject to analysis by other of States. The solution indicated - transferring reports drafted by this Council (such as “the the contracts of the predecessor State to the agreements that the State enters into with oth- successor State- would also be underpinned er States or with public international law bod- by the principle of continuity of public services ies”) and other agreements which will require and, in general terms, by the principle of le- specific references (such as the inter-adminis- gal certainty and the protection of the general tration collaboration agreements and also the interests of both territorial collectives and the legal transactions by virtue of which the provi- rights of legal and natural persons that have sion of a particular service is commissioned to been awarded these contracts. an organisation classified as “a resource and a technical service of the Administration”). Automatic subrogation. In accordance with the aforementioned principles, the starting Lastly, it should be underlined that the suc- point for executing the succession of the cession of an Administration with respect to State’s contracts must be the automatic sub- the contracts entered into with another Ad- rogation of the rights and obligations of the ministration is not set within a context of rel- State Administration in the respective con- atively stable situations and legal relations tracts. This must include full recognition of the (such as the ownership of securities and real rights of the contractors to participate in the estate property or staff providing services to negotiation of the specific conditions of this an Administration), but rather within a context subrogation and in the adoption of any corre- of an extremely dynamic reality that lasts and sponding adaptation clauses, as well as the evolves through time, perhaps several years, right to indemnity for any damages that may between the formalization of the contract, the be incurred as a result, on the condition that execution of its effects and its termination. they can be duly accredited, in accordance Moreover, contractual succession does not with the agreements and commitments made. only need to take into account the lifetime of In the same respect, the Report 3/2014 of the the contract (its duration, the specific phase Administrative Contracting Advisory Board of it is currently in and the incidents that affect the Generalitat of Catalonia (Permanent Com-

51 mittee), dated 27th February, analyses the indemnity for the accredited damages and possibility of the subrogation of a public sec- losses incurred), it is necessary to consider tor entity, organisation or body with respect the general regime of each category of affect- to its status as the legal contracting author- ed contracts, as well as the specific charac- ity of another public sector entity, organisa- teristics and clauses of the contracts in force tion or body, in the case of contracts in force and, in particular, the contracts that involve or signed by this body. It consider the trans- the greatest legal and financial complexity. fer the optional hearing of the contract in the Based on the result of this individualized as- case of the subrogation as a matter of law of a sessment, within the scope of the freedom of public sector entity, organisation or body with contract between the predecessor State and respect to its status as the legal contracting the successor State, in accordance with the authority of another public sector entity, or- principle of protecting the rights and interests ganisation or body. This subrogation, for the of the contractors and taking into account the purposes of our current interests, could be as- powers that contract law recognises for the similated within the subrogation derived from affected parties, there should not be any ob- the success of States in a contract. stacles to excluding certain contracts from the regulation of the automatic subrogation, which Based on these starting principles and rules would enable other solutions to be selected, (automatic and general subrogation with re- such as early termination of the contract or the spect to the rights acquired by contractors, reclamation of the contracted work or services legal standing and hearing of the contrac- by the successor State in accordance with the tors in terms of setting the conditions of the regulations of predecessor State. subrogation as necessary and, if required,

52 1.6 The distribution of assets and liabilities with the Spanish State

There is a set of assets and rights that the 1983 Vienna Convention, which regulates the Spanish State would have to transfer to the distribution of the State’s assets and liabilities, new State, as well as a set of liabilities and ob- never came into force. ligations that the new State will have to undertake. However, in relation to the succession of However, the lack of validity of the 1983 Vi- States, this issue is not strongly regulated from enna Convention does not prevent the parties the perspective of international law. There are involved in a particular dispute from voluntar- few regulations that are legally binding and ily agreeing to apply the Convention (in whole there are hardly any treaties in place. The or in part) to resolve their specific case. Alter- small number that do exist have been ratified natively, they could use the Convention as a by few countries. model. It is important to take into consideration the fact that the dissolution of the former It must therefore be accepted that, when ex- Soviet Union, Czechoslovakia and Yugoslavia ecuting this distribution of assets and liabili- has, in practice, contributed to the consolida- ties with the Spanish State, it is the will of the tion of some of the regulations established in two States involved that prevails, as well as this Convention. the will of the creditors and the international economic and monetary authorities. All of this The majority of its regulations are default rules is based on the fact that there are international and, as such, they are not legally binding and regulations, principles and customs that are it is therefore possible to enter into a contrary of great value in terms of providing guidance agreement. In fact, in the case of succession throughout these negotiations. of States, the will of the parties prevails. As such, the provisions of the 1983 Vienna Con- 1.6.1 The legal framework vention can be applied in all areas in which an agreement has not been reached. The International Law Commission of the United Nations has undertaken various codi- Within the legal framework of the successions fication projects related to the succession of of States, the resolution ‘Guiding principles re- States. Nevertheless, the United Nations As- lating the succession of States in respect to sembly has only adopted two of these pro- property and debts’ adopted by the Institute of jects as international codification treaties. The International Law in 2001 in its session in Van- first of these is the 1978 Vienna Convention on couver. The importance of this documents is the succession of States with respect to inter- rooted in the fact that the doctrine compiles all national treaties. The second is the 1983 Vien- of the international practices employed during na Convention on the distribution of the State’s the 1990s in the cases of succession of States assets, liabilities and records in the event of that took place in Central and Eastern Europe. the succession of States. Technically, only the As such, in practice, it consolidates many of first of these conventions took effect. However, the provisions of the 1983 Vienna Convention. given the low number of ratifications obtained, the legal force of these treaties is disputed by Therefore, in terms of the mechanisms and the the majority of the doctrine. Meanwhile, the framework for the negotiations, an initial ap-

53 proach could involve a negotiation of assets In practice, the negotiations are resolved on and liabilities prior to the date that the seces- various fronts between: predecessor State, sion takes effect, rather than a negotiation the successor State, the international mon- subsequent to secession. In the former case, etary authorities (the International Monetary the negotiations would be concluded within Fund, the World Bank), the European Union, the Spanish legal and political framework, as for example, through the Central European the parties would agree to use the internation- Bank, and certain agencies that represent the al legal framework and the recognition of the interests of the creditors. These agencies are secession would be conditional on an agree- grouped in the Paris Club and London Club, ment being achieved between the parties. as they are known, according to the public or As well as political stability, the negotiation of private nature of the loans. assets and liabilities prior to secession would There are normally two negotiation processes ensure greater legal certainty throughout the that run in parallel. The first takes place within process and would neutralize the potential the framework of the Paris Club. This is not an consequences of the process on international international organisation, but rather an infor- markets. mal forum in which the creditor States are rep- The distribution of assets and liabilities sub- resented with the aim of renegotiating the conditions of the debt at payment with the debtors. sequent to the date on which secession takes The decisions are taken by consensus. The effect may generate a level of uncertainty on second line of negotiations takes place within international markets. Nevertheless, nego- the framework of the London Club. As in the tiations subsequent to secession could be previous case, neither is this an international overseen by international mediators in ac- organisation, but rather a forum that brings cordance with the international that applies together the creditor financial institutions of in the field. Reaching an agreement in terms the States’ debt. At the Club, negotiations are of the distribution of the State’s property and held with respect to the transfer of public debt debts within the international framework has with private institutions, primarily belonging to certain advantages that must also be evaluat- the banking system. ed. These include the fact that the agreement would have to be ratified using a treaty instru- The entire process has to be based on a set of ment, meaning that it would have the status of clear principles, as listed below: an international treaty. Firstly, this would mean • Principle of proportionality. An equitable that non-compliance with the treaty would distribution may be based on the demo- result in international liability for the party in graphic weighting of the seceding territory breach. Secondly, it would grant the ability to as a proportion of the whole territory of the annul the agreements in the event of threats original state, with the aim of ensuring that and coercion by one of the States, as estab- some citizens do not bear more of the debt lished in the 1969 Vienna Convention on Inter- than others. In international practice, other national Treaty Law. parameters have also been used, such as economic weighting in terms of GDP of The international legal framework route is the the seceding territory with respect to the option that is being taken into account in this whole State’s GDP. Other criteria to be tak- case, in light of the expected difficulty to be en into consideration include the propor- able to negotiate before secession and in view tion of central government expenditure in of the fact that the majority of the negotiations the seceding territory with respect to the regarding the distribution of assets and liabili- original State as a whole. ties in the case of the succession of the State • Principle of equity. This refers to the need would take place on an international level. to maintain consistency in the balance be-

54 tween the distribution of assets and the be adopted by consensus between the par- distribution of liabilities between the two ties and the mediators. States. Therefore, by undertaking part of the Spanish State’s debt, Catalonia would 1.6.2 Public debt and obligations be entitled to the equivalent positive bal- of the State ance: a) the transfer of assets associated to the debt undertaken by Catalonia; b) the When planning a process of distribution of transfer of an equivalent part of the State’s assets and liabilities between two States, the assets that are not subject to the ascription distribution of the public debt and liabilities to a particular territory. of the State obviously take on a particular • Principle of territoriality. The Catalan State significance. As well as the economic and fi- would have to assume the debt of the Gen- nancial consequences of this distribution for eralitat of Catalonia and its city councils, both States, the international implications that but it would not have to assume the debt of derive from this process must also be consid- territorial bodies outside its territory. ered. • Principle of transparency. This principle, contained in Article 2 of the United Nations Public debt can be seen as all of the debt con- Charter, is considered by the entire doc- tracted by any public authority from any pub- trine to be a structural principle of interna- lic or private, legal or natural person. In this tional law. It implies the acceptance of the respect, a distinction can be made between negotiating process, the will to reach an local debt and central government debt. agreement and the commitment to comply With respect to local debt, the Catalan state with the agreement. would only have to assume the debt of the Another issue to be resolved in that the 1983 Generalitat, provincial councils, county coun- Vienna Convention does not establish any cri- cils, metropolitan entities and town and city teria for determining the effective date of suc- councils in Catalonia. cession. The contemporary international prac- In terms of the public debt of the central Gov- tices vary greatly. In some cases, the date ernment, it can be divided into debt that can used is the date on which the predecessor be ascribed to a particular territory and debt State stops perform sovereign functions in the that cannot. The debt that can be ascribed to territory of the seceding State. In other cases, a particular territory is the debt contracted by the date of the declaration of independence the central Government or by any of its agen- is used as the effective date of succession. cies in charge of the general State budgets, Other cases have used the date on which the for conducting work projects, services and in- new Constitution is adopted or the date on vestments in a specific territory of the State. In which the results of the referendum for self- principle, the debt contracted by the Spanish determination were published (Bosnia, 2nd State that is attributable to a particular territory March 1992). Meanwhile, in other cases, the for work projects and investments outside of effective date of succession is taken to be the Catalan territory cannot be transferred to the date on which the authorities of the seceding Catalan State. territory stop contributing to the State treasury, or the date on which the independence of the However, a distinction is required between the new State if formally recognized by the pre- debt contracted to make the investment pos- decessor State. In some more complex cas- sible and the debts or liabilities contracted by es, the succession of States is considered to the managing body of each infrastructure with take place over a certain period of time. In any respect to its suppliers and employees. In the case, the effective date of succession has to former case, the debt associated with these

55 investments can only be considered attribut- With respect to the transfer of the predeces- able to the predecessor State, although the sor State’s debt with international organisa- debt with respect to suppliers and the con- tions and despite the lack of regulation by tractual obligations associated with the man- international law, in principle, there would be agement and exploitation of each infrastruc- no possibility of this debt being transferred to ture may be attributed to the successor State. the Catalan State, at least until the new State were considered part of the organisation as a The debt that cannot be ascribed to a particu- fully-fledged member. In addition, it would be lar territory is all debt that is not attributable to necessary to consider the possibility of dis- a specific territory. This debt arises from sat- tinguishing between organisation’s to which isfying the State’s needs for general services. Catalonia would have direct admission and In other words, this debt is contracted to pro- on other cases in which Catalonia will have to vide common services to all Spanish citizens, pass through the admissions process as an such as the debts incurred by the Ministries outsider State to gain admission. In the former of Defence, Foreign Affairs and Justice, for in- case, a proportionality criterion could be ap- stance. plied by which the Catalan State would have In the case of debt that is not attributable to to assume part of the Spanish State’s debt a particular territory, it will therefore be nec- with a certain organisation. In the latter case, if essary to negotiate the applicable criteria for the non-seceding Spanish territories are con- proportionality in advance. The demographic sidered to be the only heirs and upholders of criterion would be the most equitable way to the legal personality of the Spanish State, the distribute the liabilities among the citizens of Spanish State will have to assume the entire all of the territories. Nevertheless, this could debt with each organisation. be weighted according to elements with economic weighting or proportion of the prior ex- Another part of the predecessor State’s debt penditure and investment of the State. In any that may be included in the negotiations is case, proportionality does not effect the State the debt contracted by the central Govern- as a whole, but rather only the debt entries ment with the Generalitat of Catalonia. In a contracted by the central State Administration scenario in which the Spanish State does not that is not attributable to a territory. fulfil its financial and investment commitments with Catalonia, especially once the process The distribution of debt not attributable to a of secession is under way, whether this non- territory has various balancing items. Firstly, compliance is a means of economic coercion the transfer from the predecessor State to the or a result of the Spain’s economic situation, successor State of all of the property and ser- the Catalan State would have the legitimate vices linked to the debt assumed by the latter. right to demand a reduction of the debt of the In the event that the Spanish State did not want Spanish State that it had to assume as a con- to transfer some of its assets (and until this sequence of the succession of States in an transfer takes effect), the Catalan State would equivalent quantity. be under no obligation to assume its debt and the corresponding obligations. Secondly, as In terms of debts with suppliers, in principle, well as the transfer of the assets associated each State would have to assume the debts with the debt assumed by the Catalan State, contracted by corporations (RTVE, ADIF, the Spanish State would have to transfer to AENA, etc.) with suppliers in a way that is eq- Catalonia a proportional part of its property uitable with the assumption of ownership and and assets that cannot be attributed to a ter- assets. ritory, in line with the same criteria agreed for the distribution of the debt.

56 1.6.3 Assets and rights of the the successor State. In any case, the distribu- State tion must be favourably agreed by the State in which the predecessor State’s asset subject The distribution of the State’s assets and rights to transfer to the successor State is located. is another fundamental process that must be undertaken when executing the distribution Current accounts and other financial instru- of assets and liabilities between two States. ments (the Spanish State currently has 4,823 This is a highly delicate process that is also current accounts in different banking insti- extremely visible, as it affects public real es- tutions around the world. 423 in the Bank of tate and services that are widely used by the Spain, 3,163 in Spanish banking institutions general public, for example. and 1,237 in foreign institutions) can be classified as State assets not attributable to a territo- As in the case of debt, a distinction can be ry. As such, they would have to be transferred made between assets that can be attributed in accordance with the proportionality criteria to a territory and assets that cannot. In the for- in a way that is equitable with the transfer of mer case, it should be noted that the public State debt not attributable to a territory. How- property located in the seceding territory are ever, the current accounts of some public enti- transferred to the successor State directly and ties belong to the territory’s public Administra- without considerations, as established in Ar- tion institutions, such as provincial councils, ticle 2.2.a of the 1983 Vienna Convention. Al- and these may be considered attributable to though not specified by the Convention, this a territory, as they are dependent on a territo- includes all types of State assets and prop- rial public institution and are subject to needs erty, such as buildings, services and public related to a certain territory. corporations. Spain’s position as an international credi- Property that cannot be attributed to a terri- tor with respect to third-party countries may tory included all of the assets and resources also be the object of distribution in the event of entities that are common to all Spaniards of a succession of States. In other words, the (the Bank of Spain’s reserves, current ac- parties could distribute the public debt con- counts, ownership of public and private com- tracted with Spain by other subjects of Inter- panies, national heritage, etc.). In principle, national Law. In such a case, this would not they would have to be transferred in the same be considered an asset not attributable to a proportion established for transfer of debt not territory, as it is a financial right. Therefore, it attributable to a territory, as established in would be possible to opt for the same propor- the principle of equity mentioned at the start tionality used to determine the distribution of of this report. If this were not the case, other the State’s debt not attributable to a territory. corresponding considerations could be de- manded. 1.6.4 Historical, artistic and Extra-territory assets include both public cultural heritage property located in third party States (embassies, consulates, offices of public institutions The transfer of the State’s assets in cases of the and agencies, military and scientific bases, oil succession of States also includes archives, platforms and other structures located at sea, cultural assets and national heritage. In princi- etc.) and assets in extraterrestrial locations, ple, the predecessor State has to transfer the such as artificial satellites and space instal- following elements to the successor States: a) lations. Some of the doctrine considers that archives that belong to the seceding territory; extra-territorial assets should be distributed b) archives that make explicit reference to the equitably between the predecessor State and territory, its history or population; c) archives

57 required for the territory’s institutions and pub- space and radio-electric space, which involve lic services to operate properly; and d) the ar- consequences for public telecommunications chives and document repositories with nation- services, for instance. al co-authorship with the successor State. This includes all types of tax authority databases In the case of water resources, a distinction regarding taxpayers, electoral censuses, civil should be made between border watercours- register, criminal conviction register, hospital, es and successive watercourses. No party police, Social Security and transport archives, can claim exclusive sovereignty of shared document repositories, historical archives, hydraulic and energy resources. Neverthe- open files pending administrative ruling, etc. less, it should be clarified that joint manage- In principle, the transfer of archives must not ment does not affect only the part of the hy- involve any equivalent consideration in return. drographic basin of the seceding territory, but rather entire hydrographic basin of shared The distribution of national heritage is also bodies of water (such as the Ebro River). Joint negotiated. This includes property of national management may be conducted through the interest, moveable assets registered on inven- creation of bilateral river committees. tories and all other Spanish heritage, including all moveable and real estate assets of artistic, The successor State automatically inherits all historical, paleontological, archaeological, eth- of the sovereign rights over areas with mari- nographic, scientific and technical interest that time sovereignty, without any equivalent con- are not registered on a general inventory. In ac- sideration in return: inland waterways, territo- cordance with the provisions of Articles 28.7, rial seas, the exclusive economic zone, sea 30.3 and 30.4 of the 1983 Vienna Convention, beds, etc., as well as sovereign rights over in principal, the transfer of cultural property adjacent airspace and radio-electric space and national heritage must be governed by the in the vertical plane. This also involves inherit- historical contribution of each territory i the pre- ing the obligations that the State with territo- decessor State. However, as in the case of the rial sovereignty has in relation to these spaces State archives, other criteria may also be ap- 1982 Montego Bay United Nations Conven- plied, such as the origin of the artist and the tion on the Law of the Sea. most explicit reference of their work. 1.6.6 Private property and debts 1.6.5 Natural resources Normally, outside of the scope of decoloni- Another crucial aspect of any process of dis- zation, the contractual obligations of the pre- tribution of assets and liabilities between two decessor State and private organisations re- States is the separation of natural resources. garding the assignment and exploitation of This is particularly important with respect to resources of the successor State are compul- water resources, but also in relation to air- sorily transferred.

58 1.7 Quantitative variation in the budgets of the Generalitat, after the new Catalan State is achieved

The independence of Catalonia would have lic services that must assumed by the Catalan significant effects on the budget of the Gen- State will be maintained with the same level of eralitat. This would primarily be because the expenditure currently allocated by the Spain; Generalitat would have to assume new com- b) the quantification of the additional public petences, create State structures that do not expenditure will vary depending on the year currently exist and reinforce the current ad- and the States economic policy; c) it assumes ministrative structures. All of this will involve that the same fiscal system and level of tax more public spending. Secondly, the budget burden will be maintained in line with those would also be modified in terms of revenues, that currently exist in the Spanish State. as tax revenues would increase due to the fact that the contribution that Catalans currently The quantification is made with reference to make to the Spain would remain in Catalonia. 2011, as the reports of the tax balance sheet of Catalonia with the central public sector One way of quantifying these additional ex- are currently only available until that year. As penses and revenues would involve using the mentioned, the analysis conducted is based information regarding the tax balance sheet on the information provided in the aforemen- of Catalonia with the central public sector tioned reports. authorities that is regularly calculated by the Government of the Generalitat. In one respect, In this way, the calculation being made here the tax balance sheet quantifies the expendi- is equivalent to quantifying the additional ex- ture that the Spanish State undertakes in Cat- penditure and revenue that the Generalitat alonia corresponding to the competences of budget would have had in 2011, had Catalo- the central authorities, such as the administra- nia been an independent State and: a) it had tion of Social Security (payment of pensions provided the new public services that it had and unemployment benefit, among others) or assumed as a State at the same levels of pub- foreign affairs, which the new State will have to lic spending as the Spanish State did; b) it assume. As such, these figures can be used had imposed the same taxes and tax burden as an indicator of the new competences as- as the Spanish State did during the period un- sumed by the seceding State. In another re- der analysis. spect, the tax balance sheet also indicates the tax revenue that Catalonia would have as 1.7.1 Additional expenditure a State, on the condition that a part did not re- vert to the Spanish State. In line with the methodology generally applied internationally, the tax balance sheet uses two While using the tax balance sheet is a relative- approaches to quantify the public spending of ly simple method of ascertaining the addition- the central public sector in Catalonia at a ter- al expenditure and revenue that would form ritorial level: the burden-benefit flow and the part of the Generalitat budget in the event of monetary flow approaches. The burden-benefit an independent Catalonia, the adoption of this approach attributes the expenditure in the terri- method has the following drawbacks: a) it is tory in which the beneficiary lives, regardless of based on the assumption that the new pub- where the public services is provided or where

59 the investment is made. In contrast, the mon- the Generalitat would have would be the same etary flow approach attributes the expenditure as the tax revenue generated in Catalonia that to the territory in which this expenditure takes currently end up in the Spanish treasury, mi- place, regardless of the geographical location nus the transfers received by the central pub- of the end beneficiaries of this decision. lic sector.

Using the monetary flow method, with the ex- The two approaches for calculating the fiscal ception of defence and foreign policy, in which balances account for the tax revenues of the cases the expenditure attributable to the ter- central public sector in Catalonia in different ritory is calculated by applying the burden- ways. The burden-benefit approach accounts benefit approach and using the data from the for the revenues in the territory in which the budget settlements of the State, autonomous taxpayers who eventually bear the burden institutions, state agencies and public insti- live. The monetary flow method accounts for tutions, as well as the Social Security system the revenues in the territory in which the eco- and public corporations, the total additional nomic capacity subject to the tax is located. In expenditure that the Generalitat would have other words, this focuses on where the taxable had to assume in 2011 if Catalonia had been object is located, regardless of where the tax- an independent State is 39.507 billion euros. payers who eventually bear the burden live. Three quarters of this expenditure (74.07%) Accounting for the additional revenues that correspond to the Social Security system and the Generalitat would have in the event of its economic benefits. In terms of quantity, independence is based on the revenues re- the second most significant proportion of ex- corded in the tax balance sheet in accord- penditure would be the transfers to local gov- ance with the monetary flow approach, as this ernments (6.38%), followed by debt interest is the best calculation of the tax revenues that repayments (6.07%). These three items alone could be generated in Catalonia in line with account for 87% of the additional expenditure. its levels of income, consumer spending and These would be followed, in terms of mone- wealth. This is regardless of who eventually tary volume, by spending on defence (3.05%) bears the tax burden and where the tax col- on the assumption that the new State had lection takes place. armed forces and defence expenditure equivalent to Spain. The rest of the expenditure The additional revenues that the Generalitat programmes and items are less significant in would have had in 2011 if it had been an in- quantitative terms. It should be highlighted dependent State and had maintained the rev- that the new State would not necessarily have enue structure, fiscal system and tax burden to reach these levels of spending, as they cor- that the Spanish State has that year, the rev- respond to the economic policy of the current enues would have been 45.317 billion euros, Spanish Government. Nevertheless, this as- 54.29% of which correspond to the revenues sumption is made to enable an approximate from Social Security contributions and 41.49% calculation of the volume of additional spend- from taxes. All other revenues are only of re- ing of the new State with respect to current sidual importance. public expenditure. 1.7.3 Fiscal surplus of the 1.7.2 Additional revenues Generalitat

If the independent Catalan State maintained Once the additional public expenditure and the same fiscal system and tax burden that is revenue of an independent Catalonia have currently applied in the territory as part of the been quantified, the effects that independ- Spanish State, the additional revenues that ence would have on the Generalitat budget

60 can be analysed. It should be noted that the completely viable after the independence of revenues are significantly higher that the ex- Catalonia in fiscal and financial terms, despite penditure accounted for, resulting in a fiscal having to assume new competences, some surplus of 5.81 billion euros for the treasury of of which are of such a significant scale as the the Generalitat. Social Security system. However, this viability has been analysed from the perspective of a In fact, the previous fiscal surplus would have scenario in which Catalonia has become a ful- been even bigger, as it would have to take ac- ly independent State. In other words, the anal- count of the benefit of no longer participating ysis is set within a context at the end of the in the amortization of the debt that results from independence process, in which the Generali- the Spanish budget deficit, which was signifi- tat would already have fully assumed all of the cant in 2011, at 3.58% of GDP. In that year, the competences and obligations of a State, with aforementioned benefit is estimated at about the corresponding provision of public servic- 7.184 billion euros which, added to the 5.81 es, and its tax agency would have fully imple- billion mentioned above, would leave a fiscal mented its tax collection functions. surplus of 12.994 billion euros. Forecasts should also be made for the financ- A further aspect to be taken into consideration ing of the Generalitat in the initial period of in- is that an independent Catalonia would have dependence. In this respect, it is important to to contribute to the international organisations take in to account the circumstances in which of which it forms part (IMF, EU, etc.). The most this independence takes place. If independ- significant of these in terms of quantity is the ence were achieved after an agreement with contribution to the EU, which is around 1.4 bil- Spain, there would be no problem with respect lion euros. Therefore, this contribution would to financing the Generalitat in the early stages have to be subtracted from the previous fis- of independence, as the new competences cal surplus, which would result in a fiscal sur- that would have to be assumed would be ac- plus of 11.591 billion euros, which represents companied by the corresponding resources 5.95% of GDP. from the Spanish State tax revenue currently collected in Catalonia, which would be trans- Lastly, it should be noted that the previous ferred to the new State. fiscal surplus is a initial approximation of the situation in an independent Catalan State The situation may be different if Catalan inde- bearing in mind, as mentioned above, that the pendence were achieved without the agree- analysis is based on a set of faith restrictive ment of Spain and a belligerent position were assumptions. Despite these restrictions, the adopted by the Spanish State. In such circum- analysis conducted here may be a reasonable stances, the financing of the Generalitat in the approximation of the fiscal surplus that would first few months of independence must be tak- result from the independence of Catalonia for en into consideration, as the new State’s tax the Tax Administration of the Generalitat. In agency may not yet have achieved full perfor- addition, if the new revenues and expendi- mance in terms of tax collection. ture analysed were added to the budget of the Generalitat, it is clear that this budget, which It has been estimated that, during the first few is currently in deficit, would shift into surplus. months of independence without agreement from Spain, the Government of the Generali- 1.7.4 Considerations for the first tat would need monthly financing of 4.5-5 bil- few months lion euros, which would be required to pay the salaries of civil servants, pensions, unemploy- The analysis conducted so far has high- ment benefit and the current spending of the lighted the fact that the Generalitat would be Generalitat.

61 As such, there may be a brief interim period • Public debt issues by the Central Bank of in which the Generalitat would have to resort Catalonia. to other non-taxation sources of financing to • Issuing bonds for public subscription. cover this expenditure. The possible alterna- • Issuing tradable bonds for outstanding tive channels for financing the Generalitat are payable taxes with the aim of advancing as follows: the fiscal resources of the Catalan citizens. • Taking out loans with Catalan or foreign financial institutions. Catalonia would be In any case, it should be highlighted that the a State with relatively few debts as, with- basic source of financing has to come from out having reached an agreement with taxation resources, and any alternative sourc- the Spanish State, the new State would es of financing must be temporary in nature not have assumed part of the predeces- and be applied for a brief period. As such, it sor State’s debt. As a consequence, the is crucial that the Government of the Gener- Generalitat would be in a good position to alitat implements the strategies and measures obtain foreign financing. As such, loans required to prepare the Catalan Tax Agency could be taken out using the new State’s during the period of transition so that, in a con- assets (ports, real estate, airports, etc.) as text of tax sovereignty, this Administration can collateral. operate at full capacity as soon as possible.

62 2 The organisation of Catalonia as a new State

2.1 Economics and Finance

2.1.1 Fiscal and financial viability Moreover, the impact of these effects on the Catalan economy, thanks to the creation of The independence of Catalonia, in addition to employment and business activity would also representing the disappearance of the fiscal have a positive impact on tax revenue. For ex- deficit (8% of Catalan GDP on average, about ample, the increase in employment would in- 16 billion euros), would result in a clear ben- crease revenue from personal income tax as efit for the Generalitat (Government of Cata- more people would be earning and also from lonia), which would have additional resources VAT due to the fact of increased consumer each year (fiscal gain) of about 6% of Catalan spending. Current estimates in Spain indicate GDP. This would have additional effects on the that an increase of 1% of GDP results in an in- economy that should not be underestimated. crease in tax revenues by around 1.2%. These effects would be caused by the impact of the fiscal gain and also the additional costs In addition to the above economic impact, which the Generalitat would incur. the new state would also gain by being able to decide its economic policies and tailor In economic terms, an increase in consump- them to the country’s needs. This is an intan- tion (private and public), investment or pub- gible benefit that would have a positive bear- lic spending is regarded as a boost to GDP, ing on economic growth. The fact that an in- which is known as the multiplier effect. dependent Catalonia could map out its own policies (tax, labour, finance, infrastructure, Thus the fiscal gain of independence might education, etc.) would have a direct impact have a significant multiplier effect on the Cat- on Catalan GDP. alan economy, as resources from it could be used for public spending increases and/or tax 2.1.2 Monetary policy. The euro cuts. This would have an immediate positive effect on consumption and investment. Further- One of the main powers and responsibilities more, the rise in public spending might lead to of a sovereign state is establishing and man- an increase in the number of public employ- aging a monetary system. This includes the ees, which would boost the employment rate. determination of the currency to be used as a means of payment and unit of account, as In addition to the effect of the fiscal gain, the well as the definition of monetary policy and very impact of the additional spending that its implementation. the Catalan Government would experience would also most likely have a positive ef- In this field, a possible independent Catalan fect on the economy. This impact would not state would have two main options: to have its be seen in spending on transfers to specific own monetary system or keep the euro as a groups, since in this case there would only be currency. a change in the payer government. However, setting up new state structures such as a cen- The value of keeping the euro as a common tral bank or regulatory bodies could have a use currency in a possible independent Cat- positive effect on highly qualified employment. alan state is obvious. It would be an option

65 even though the new state would be outside not be used as collateral (bank guarantee) the Eurosystem and/or the Eurozone. In this for ECB loans. scenario, we must reiterate our preference for achieving a monetary agreement. And if no The difficulties associated with the last two agreement is reached, the euro would have points are certainly relevant and could be to be adopted by unilateral adoption. It is im- overcome with a monetary agreement with portant here to express the will to fulfill all the the EU similar to that signed with Monaco requirements established by the EU, while and Andorra, which might approve the use keeping in mind that keeping the euro gives of the euro as the official currency for the legal certainty to companies’ business trans- country and allow Catalan institutions ac- actions. cess to ECB operations. This Council decision should be taken by qualified majority. We must distinguish between two possible It would be a natural choice to ensure the scenarios if the euro were kept as Catalonia’s continuity of the current monetary framework currency. and allow a “soft” and fast (re)entry as a full member of the Eurosystem. It is also – by far In the first scenario, Catalonia would be in the – the most likely scenario in the event that an Eurozone as a full member of the Eurosystem independent Catalonia remained outside the (the nineteenth), with the possibility of repre- EU, since otherwise it would be detrimental sentation in the Governing Council of the Eu- to all parties involved in relevant decisions. ropean Central Bank (ECB). This option would In any case, the absence of an agreement undoubtedly be the most desirable, as it would not prevent Catalan banks from ac- would ensure full continuity of the current sys- cessing the European Central Bank through tem from the citizens’ point of view. It would their subsidiaries. also give Catalonia its own voice in Europe- an monetary organisations, and eligible for seigniorage revenue from the ECB (although 2.1.3 Bank of Catalonia, the these revenues currently account for a very country’s own central bank small percentage of GDP). The main requirement for this option is to stay in the EU, or an Whatever the scenario, a new national central ad hoc temporary agreement while Catalonia bank – a Bank of Catalonia (BdC) – would be joins the EU, a fact which would make it pos- necessary, equipped with the powers com- sible. mon to central banks. This would also present a great opportunity to carry out these func- In a second scenario of not remaining in the tions better than the Bank of Spain (BdE) has EU, Catalonia could keep the euro as its of- in the past. The implementation of single Eu- ficial currency but without being a member of ropean oversight mechanisms could partially the Eurosystem. In comparison with the pre- facilitate this function. vious scenario, this would have the following main drawbacks: It is worth repeating that Catalonia’s strong • The lack of Catalan representation in the commitment to Europe involves its willingness governing bodies of the ECB and its sei- to follow demands issued by the EU, espe- gniorage revenue. This is a minor issue in cially considering that it will know how to suf- substantive terms. ficiently gauge the consequences of the two • Banks based in Catalonia would not have decisions in ensuring the common space, redirect access to ECB credit, since it is respect for commitments to citizens and credi- stricted to banks within the Eurozone. tor guarantees for the Kingdom of Spain. The • Financial assets issued in Catalonia (in- EU itself can thus be expected to favour an cluding the debt of the new state) could agreement. This would be the case not only

66 for consistency with the principles of Europe- The Governing Council would be the highest an integration, as analysed in this Council’s re- decision-making body of the BdC. It should port on the paths for Catalonia’s integration in comprise the members of the Executive Com- the European Union, but also because a strat- mittee of the BdC, along with its directors. This egy contrary to the agreement could end up body should adopt the general lines of action affecting Spain and the Spanish economy as and take the necessary decisions to ensure a whole, since the solvency of its debt would the effective exercise of the functions as- be weakened sharply and could eventually signed to the BdC. end up undermining the credibility of the common currency itself. The duties to be assumed by the BdC are crucial for the economy and financial stability. An independent bank. The Bank of Catalonia Five of its duties are worth highlighting: super- should be independent. This independence vising the banking system; promoting finan- implies that neither the BdC as an institution or cial stability; defining and implementing mon- any member of their decision-making bodies etary policy; promoting the smooth operation would be allowed to seek or accept instruc- of payment systems, owning and managing tions from the Government or from any other the state’s foreign exchange reserves; and is- agency with respect to how they should exer- suing and putting into circulation legal tender cise the functions and achieve the goals with banknotes and coins. which they have been commissioned. Institu- tions, agencies and the Spanish Government It could also provide other services, such as should respect this principle and not to try to preparing and publishing statistics related to influence the members of the BdC’s decision- their duties, providing treasury and financial making bodies. agent services regarding public debt and advising the Government, and carry out applica- The financial accounts of the BdC should re- ble studies and reports. main separate from Spain’s. The BdC should have its own budget. Clearly, these functions would be carried out differently if Catalonia were part of the EU or The BdC Statutes should stipulate that its gov- otherwise, and therefore if the BdC were in- ernor and directors should have a relatively tegrated into the ESCB (European System of long term – of eight or nine years – without the Central Banks) or not. possibility of being re-elected. They should only be removed from office in case of inca- Supervision. The BdC should supervise pacity or serious misconduct. banks’ solvency and compliance with specific regulations. The new ECB-dependent Euro- The BdC’s Executive Committee should be pean supervisor (Single Supervisory Mecha- made up of the Governor, the General Man- nism, SSM) will supervise the large banks agers and the General Secretary. Temporarily, (mainly those with assets exceeding 30 bil- and until Catalan legislation adopts the final lion euros and in any case the three biggest resolutions about this matter, the appointment banks) of each Eurozone member state (and of the BdC’s governing bodies could follow the other countries subject to the SSM). The BdC, current model of the Bank of Spain, except it as an NCA (National Competent Authority) would be the Generalitat’s responsibility. This should work closely, pursuant to SSM regula- body should be in charge of the daily govern- tion, in monitoring these large banks. In addi- ment of the BdC, prepare the meetings of the tion, the BdC should directly supervise other Governing Council and exercise the powers Catalan entities that may not be significant at delegated to it by the Governing Council. the European level.

67 Financial stability. The BdC should promote vide and absorb liquidity and control in- financial stability, ensuring the smooth opera- terest rates in the market on a day-to-day tion of financial institutions, strengthening its basis. resilience against adverse economic condi- • Maintain minimum reserves. Applies to fi- tions and harmonising its efforts with the gen- nancial institutions in the Eurozone. Its pur- eral and specific interests of companies and pose is to stabilise money market interest individuals. To this end: rates and create (or increase) the liquidity • It should adopt a prudent and effective structural deficit. regulation. This would be sufficiently ensured with the direct transposition and ap- In accordance with the Statutes of the Europe- plication of European directives and bank- an System of Central Banks (ESCB) and with ing regulations and harmonised prudential respect to all liquidity injection operations, the rules issued by the European Banking Au- European Central Bank (ECB) and national thority (EBA) in the so-called Single Rule- central banks should require collateral pro- book. vided by the counterparties, i.e., banks. This • It should exercise an active, macropru- requirement is intended to protect the Euro- dential policy, always keeping an eye on system from potential financial risks. Collater- macroeconomic variables that could af- als are the financial instruments put forward fect the whole or part of the financial sys- as guarantee for repayment of a loan or sold tem, adopting measures to minimize these as part of a temporary assignment. It would risks. be the BdC’s function to analyse and approve, in accordance with ECB rules, the eligibility of Monetary policy. The Eurosystem’s prima- collateral presented by banks. ry objective is to maintain price stability. To Payment systems. achieve this objective, the Eurosystem man- Security settlement and ages monetary policy accordingly. Through payment systems represent the infrastructure a series of instruments and procedures that through which an economy’s assets are mobi- constitute the operational framework, it tries to lised. Consequently, the proper functioning of control the interest rate and amount of money settling systems is essential for financial sta- in the market. bility. Therefore, promoting the smooth operation of payment systems should be one of the Monetary policy decisions are taken by the BdC’s basic functions. Governing Council of the European Central Catalonia should likewise request member- Bank (ECB), and the national central banks ship in the Single Euro Payment Area (SEPA). of the Eurozone countries carry them out. The This is an initiative of the European financial BdC should therefore carry out this function as industry, under the leadership of the European soon as Catalonia joins the Eurozone. Commission and the ECB, coordinated by the The ECB’s monetary policy is implemented European Payments Council, and constituted with uniform criteria valid for everyone through by the EU countries plus Iceland, Norway, three mechanisms which would be executed Liechtenstein and Switzerland. through the BdC and which are available on equal terms to all Eurozone financial institu- 2.1.4 The Catalan Investments tions: and Markets Authority • Open market operations. They allow controlling interest rates, managing the liquid- The new Catalan State would need its own ity situation in the market and steering agency responsible for regulation and super- monetary policy. vision of financial investments and the stock • Standing facilities. Its purpose is to pro- market, both for the importance of maintaining

68 regulatory safety in this area and because of 2.1.5 The Tax Administration the stipulations of the EC’s Directive 2010/78. The objectives of this agency would be to en- Becoming a state is not possible without hav- sure market transparency and proper pricing, ing the power to manage taxes paid by citi- as well as investor protection. zens. The Generalitat Government has to be able to decide its tax model and set the course The Catalan Investments and Markets Au- of the fiscal policy that best suits Catalonia. In thority (ACIM) would be the agency to take contrast with the Spanish model, the Catalan responsibility for the regulation and supervi- fiscal management model should foster coop- sion of investments and financial markets. The eration between the public and private sec- ACIM should implement policies spelled out tors to encourage voluntary taxpayer compli- by ESMA (European Securities and Markets ance with tax obligations. Authority). The Tax Agency of Catalonia, then, should be The ACIM should be independent. This inde- the centrepiece of the institutional structure of pendence implies that neither the ACIM nor the Catalan State’s Tax Administration. any member of its decision-making bodies should be allowed to seek or accept instruc- To become a public authority for a tax man- tions from the State Government or any other agement model based on trust and coop- agency. eration with all taxpayers, the tax authority of Catalonia should exhibit the principles of ACIM should also have budgetary and finan- transparency, professionalism, commitment to cial independence and be financed exclu- public service and efficiency. sively from taxes received from financial mar- The Tax Agency of Catalonia will be responsible ket players. for applying the tax system through the exercise The ACIM statutes should stipulate that the of administrative powers and functions related to president and directors of the Catalan Author- settlement, collection and verification of taxpay- ity should have a relatively long term – of eight ers’ tax obligations subject to the tax jurisdiction or nine years – without the possibility of being of the Generalitat of Catalonia, and, if necessary, re-elected. They should only be removed from penalise any irregularities that may occur. office in case of incapacity or serious miscon- Public agencies which, together with the Tax duct. Agency of Catalonia, would flesh out the in- The functions which should be exercised by stitutional structure of the Catalan State Tax ACIM are essential for the proper operation of Administration are the Fiscal Council of Cata- financial markets. Its tasks would include the lonia, the Institute of Tax Studies of Catalonia, regulation and supervision of financial mar- the Directorate-General for Taxation and the kets and the promotion of the smooth opera- Board of Taxation of Catalonia. tion of these markets. It could also carry out The Fiscal Council of Catalonia is the body other functions required by the EU, such as that would facilitate an ongoing dialogue be- the management of an officially recognised tween the tax authorities and organisations investor compensation system or encoding of representing various groups of tax advice pro- securities and custody of securities for man- fessionals. agement and liquidation. It could also provide other services, such as preparing and pub- The Institute of Tax Studies of Catalonia would lishing statistics related to its duties, advising be the body responsible for the technical the Government and carrying out applicable training of staff working in tax administration studies and reports. bodies.

69 The Directorate General of Taxation shall be ment window, in the medium term, it seems the body that provides the criteria for inter- essential to redirect tax cash flow tax to the preting tax regulations for governing bodies Central Bank of Catalonia. Meanwhile, this responsible for the application of taxes in or- function could be organised by the various der to achieve uniformity in the legal treatment private banks operating in Catalonia as part- of the various issues raised by Catalan tax- ners in collecting Generalitat taxes. payers. From an administrative standpoint, organising The Board of Taxation in Catalonia should tax collection services requires having an of- group in a single authority all review proceed- fice network where the various possible inci- ings through administrative channels of tax dents may be resolved. To organise collection proceedings issued by various bodies and of unpaid tax debts, asset information about agencies part of the Tax Administration of Cat- Catalan taxpayers should be available, as alonia. well as the organisation necessary to manage a large volume of cases where a lot of issues Objectives and characteristics of the future arise which require decisions to be taken by organisation of tax application functions. a public authority, and which often involve le- In a tax management system based on self- gal proceedings. The personal, material and payment, the taxpayer assumes the burden technological means available today in Cata- of performing all technical and legal tasks lonia, especially those integrated in the auton- required for determining tax liability. If a high omous bodies of provincial agencies, could percentage of voluntary compliance is to be be sufficient to address the management of achieved, in addition to simplifying tax rules, executive collection of tax debts from Catalan the Tax Administration should provide taxpay- taxpayers. ers with technological tools and tax support and mentoring services to enable them to duly The administrative control of the correct ful- meet legally enforced tax obligations. filment of tax obligations is a verification and testing activity subsequent to decisions taken In Catalonia, there are already different branch by taxpayers at the time of carrying out their networks which can offer support to all Cata- tax obligations. Therefore, given the volume of lan taxpayers, although each is part of a sepa- tax returns that have to be checked each fiscal rate institutional structure. Along with public year, the use of technologies for analysis and offices, the development of the future Catalan data cross-referencing is intensive. According Tax Administration should include Property to the tax control model of the Spanish state, Records offices and the offices of the Cham- the AEAT carries out this task distinguishing: bers of Commerce, Industry and Navigation. a) on the one hand, mass (or comprehensive) In Catalonia’s future Tax Administration model, checking by tax administration bodies; and b) the ATC and AEAT (Inland Revenue) offices on the other, the specific (or intensive) check- would be integrated and coordinated with oth- ing carried out by tax inspection bodies. This er public office networks (especially provincial model of organisation with respect to monitor- councils), always respecting the powers and ing compliance is valid, and addresses the functions of each. Likewise, to improve the various possibilities of combining human and results of ordinary tax management without technological resources according to taxpay- incurring excessive administrative costs, the er characteristics or the objectives of the pub- cooperation of all fiscal intermediaries will be lic action. required. Finally, it should be noted that the discovery of To organise the collection of payments made undeclared economic activities (underground by Catalan taxpayers in the voluntary pay- economy) is a function that requires the use of

70 research techniques and people and capital public spending budget of about 400 million tracking. Achieving the co-operation of inter- euros. national tax authorities and domestic economic operators (especially financial institutions) Estimate of the economic performance of are therefore essential aspects for ensuring the Catalan tax system. If to calculate the effective tax investigation. Spanish taxes obtained from Catalonia we applied a rate of 20% to the gross taxes collect- The IT structure. In the 21st century, the key ed by the AEAT, we would discover that the fi- factor of taxing capabilities is information. nancial flow which the Generalitat of Catalonia could manage would be between 40 and 50 For this reason, the Tax Administration of Cata- billion euros per year. To this amount we would lonia should have the necessary technological then need to add the taxes collected by the tools to develop an electronic management of ATC and, if applicable, revenue from the man- tax application procedures. agement of Social Security contributions.

The main shortcoming of the Tax Administra- If we assume that Catalonia’s gross domestic tion of Catalonia is that it lacks its own data- product (GDP) is about 200 billion per year, base of tax information, and the hardest chal- if we applied the average tax burden levied lenge is to obtain it without co-operation from by Spain during the last five years, we would the Spanish government. The main require- obtain tax revenue, from all sources (including ments for the construction of this database social security contributions) of close to 70 bil- are three-fold: obtaining tax data from Catalan lion euros per year. taxpayers, the storage system and, finally, the protection of data to ensure confidentiality. If, instead of applying the Spanish rate we applied the average EU tax rate, the Generalitat One might consider the possibility of taking of Catalonia would obtain an estimated rev- advantage of the IT system which the ATC enue of about 80 billion euros. currently uses (GAUDI), although upgraded and improved, as a practical means for pro- Finally, if we applied the tax rate of the Europe- cessing the various tax application proce- an countries with the highest taxes, we could dures. However, in any case, the suitability of conclude that the tax revenue limit for Cata- implementing an alternative IT system needs lonia would be close to 100 billion euros per to be assessed. year.

From the taxpayer’s perspective, the main Tax Administration development stages. channel for modern tax management is what The first phase is preparation, which extends is known as an online platform, understood as from the present moment to the constitution of a site featuring all tax-related procedures and the new state. At this stage, measures must be formalities to facilitate the remote interaction taken to strengthen the powers and resourc- between the tax administration and taxpayers. es of the Tax Agency of Catalonia, under the Spanish tax law framework, which may be val- Estimated operating costs. According to the id for both a political independence situation average cost of tax collection in OECD coun- as well as any other scenario that may involve tries, for a potential 70 billion euros (includ- an increase in self-government for Catalonia. ing social contributions), we could estimate that the Catalan tax system would cost 750 The second phase of the process for creat- million euros. However, the goal of the future ing the Tax Administration of the Catalan state Tax Agency of Catalonia should be to reach starts from the moment that the Generalitat of the efficiency levels that would allow it to carry Catalonia achieves fiscal sovereignty. It will out its public functions in accordance with a therefore be developed in accordance with

71 regulations approved by the Parliament of Cat- pervision should unduly delay the entry or exit alonia. From the moment that the Parliament of goods with consequent costs for Catalan of Catalonia approves legislation to shape the importing and exporting companies. Catalan tax system, its effectiveness will depend essentially on the will of Catalan citizens The two essential factors for organising cus- to abide by and comply with Catalan regula- toms management are, first, the public em- tions. ployees responsible for processing the import and export declarations and, secondly, the IT If fiscal awareness of Catalan taxpayers system that collects data from international translates into significant improvement in the traffic of goods. In both cases, the Generalitat percentage of voluntary compliance with tax of Catalonia should be able to mobilise human obligations, as compared to what the Span- and technological resources to ensure smooth ish government now obtains in Catalonia, the and safe traffic through Catalan customs, development of the administrative structure since an open and dynamic economy such as responsible for applying the Catalan tax sys- Catalonia’s cannot allow any anomalies in the tem will be streamlined considerably. entrance, and especially in the exit of goods and products destined for foreign markets. In the first moments of operation of the Catalan state’s Tax Administration, to ensure the conti- A customs authority or service will need to nuity of tax flow and that taxpayers meet their be set up to perform foreign trade duties and tax obligations with total normalcy, the possi- market surveillance, control and inspection. bility of declaring much of the applicable tax Based on the State Customs Surveillance Ser- laws and regulations in force before reaching vice (SVA) – which has a decentralised agen- fiscal sovereignty might have to be deemed cy in Catalonia (the Regional Area, based temporarily applicable. in Barcelona) – six operating units could be established (Barcelona El Prat Airport, Tar- To facilitate the transition between Spanish and ragona, Palamós, Girona and Lleida), a com- Catalan tax jurisdiction, in accordance with bined unit (Figueres), and two marine bases standard international community procedures, (Palamós and Barcelona). the Parliament of Catalonia will need to approve a bill governing non-residents’ income tax. Also, a national contact point should be established within the corresponding Ministry Once the process for implementing the Cata- – currently the Ministry for Business and La- lan tax system is completed, the Tax Adminis- bour – for controlling the adoption of technical tration of Catalonia shall be integrated into the regulations for products. international network of tax administrations, which it should comply with. This administra- A national accreditation organisation would be tive co-operation, essential for developing the required, responsible for overseeing the perfor- tax application functions in a globalised world, mance of the various certification bodies and will be particularly necessary with respect to defining the legal framework in which it would the Spanish Tax Administration. operate. This role is currently carried out at the Spanish state level by the Spanish National Ac- 2.1.6 Customs service creditation Entity (ENAC). Among other things, the new entity should be a member of the Euro- A factor in boosting the economy of a coun- pean Cooperation for Accreditation (EA). try is having well-organised and efficient customs. A balance needs to be found between To carry out the new market surveillance ac- the intensity of control and the speed in man- tivities required by the EU in relation with the aging customs procedures, lest excessive su- safety and environmental regulation objec-

72 tives, and to avoid unfair competition, in ad- international freight traffic data. These human dition to the aforementioned customs, the and technological resources are necessary Catalan Consumer Agency and the Catalan to ensure smooth and safe customs traffic in Food Safety Agency (ACSA) would have to Catalonia. be given more powers, and the Catalan Medi- cine Agency would have to be created from In addition, the Mossos d’Esquadra police scratch (based on the current Pharmaceutical force would have to take over the Customs Control and Medical Devices Service). Surveillance Service and create new Inland Revenue units with its own staff. Moreover, the In order to comply with the requirements of new state could take over – through transfer EU directives in this area, when it comes to or- or distribution of assets and liabilities – all or ganising customs management, from the very some of the staff and material elements of the first moment the new state should have public current decentralised bodies of the Customs employees ready who would be responsible Administration of the Spanish state in Catalo- for processing import and export declarations nia (Regional Area, provincial offices and op- and a computer system capable of managing erational units).

73 2.2 Administrative authorities and structures of the new State

2.2.1 Competition and regulation dio spectrum. Regulatory authorities are also authorities required in relation to the financial system – banking securities market. Apart from these At times, markets for goods and services do strictly economic areas and to protect postal not spontaneously work correctly, because service and environmental consumers, the there may be agencies with excessive power EU requires the creation of a national postal that hinder efficiency and establish extraordi- authority and another one that guarantees the nary benefits that harm consumers, imposing safety of nuclear waste and, more precisely higher prices and/or worse quality. Therefore, “security for the management of consumed protection of competition has been a tradition- nuclear fuel and radioactive waste.” In ad- al concern of European economic policy. dition to the regulatory authorities required by the EU, the new state could create those There are also some economic sectors in which it might deem appropriate. which the production and distribution structure itself determines the existence of few European law allows states freedom to choose competition possibilities due to the existence the institutional and administrative design of of structural monopoly situations (such as, for national competition and regulation authori- example, and clearly, in the case of energy). ties. In this sense, its format is not stipulated. It does require, however, that the national To address these two problems, the EU has competition and regulatory bodies be public gradually adopted legal harmonisation meas- agencies acting impartially and transparently, ures, requiring Member States to create na- and in particular as neutral public bodies with tional authorities responsible for ensuring respect to any specific interest. protection of competition and regulate certain sectors, especially, but not exclusively, ba- During the first stage of constructing the pos- sic economic services and network services sible independent state, the guidelines and where a high level of liberalisation and har- requirements of European regulations must be monisation at the European level has taken applied taking into account the principles of place. This explains the growing importance maximum organisational and functional sim- of discussing protection of competition and plicity. This is so because the representative regulation of network industries, implying the institutions of a future Catalan state should de- degree of power and autonomy with which fine the most permanent characteristics of the these bodies are established. institutional design of regulatory bodies and their functions. Specifically, as far as the regulatory authorities are concerned, as of today, the EU re- It can be concluded that the simplest formula quires Member States to have such authorities to organise the regulation functions in energy, in place in the field of rail transport, gas and telecommunications and transportation (rail) electricity and telecommunication services, services during the transition period would be which includes electronic communication ser- assigning to Catalan Competition Authority vices and those related to the use of the ra- (ACCO) – which already exists – functions re-

74 lating to the guarantee of access to infrastruc- Council of Catalonia (CAC) and the Catalan ture. As for the rest of supervisory and regu- Consumer Agency. latory functions, the simplest formula during the transition period would be to assign the 2.2.2 Other administrative responsibility to administrative structures of structures required by the EU the Generalitat of Catalonia (as long as the requirements of fairness and transparency were The EU also requires that Member States have observed). Regarding the national regulatory administrative structures with the capacity to authority for postal services, the role could develop and implement European law and ul- also be assumed temporarily by ACCO. timately implement the EU’s public policy.

However, in relation to the regulatory author- a) Rail transport, electricity and gas en- ity for the safe management of nuclear waste ergy services and telecommunications and radioactive fuel, it should be noted that this is a new responsibility for the Generali- Transport policy. In the field of rail transport, tat and a committee or board for controlling it the only thing to be done is create an adminis- would have to be appointed. trative structure responsible for security.

Once the possible independent Catalan state With regards to maritime transport, the new is consolidated, the future Catalan lawmakers Catalan state would have to create an admin- should opt for a more definitive design aligned istrative structure that would take over the re- with some of the following functional forms sponsibilities of international maritime regula- with respect to regulatory and competition au- tions, safety, pollution and inspection. thorities: • Industry-specialised regulatory and com- In the field of air transport, Catalonia has to petition authority: set up an institution spe- create its own air navigation entity, integrated cialising in competition policy and create a in the European aviation network (it could be regulatory specialist in the various indus- created based on the existing control centre tries: energy, telecommunications (elec- in Barcelona) and a Catalan Agency for Avia- tronic communications and radio), rail, fi- tion Safety which would assume responsibility nancial system, postal service and nuclear for aviation safety in the Catalan airspace (the waste. flight safety office which EASA has in Sabadell • Competition authority and one or more could be used as a basis). A national supervi- multi-sector regulators: set up an institu- sory authority would also need to be created tion specialising in competition policy and to certify air navigation service providers. create an institution responsible for regulating all sectors and different institutions Finally, in the field of smart transport and sat- that carry out these tasks with related sec- ellite navigation, the Government of Catalonia tors. would create new units or agencies of the Min- • Single, multi-sectoral regulatory and com- istries of Territory, Economics and Business petition authority: integrate the competi- that could participate in the European pro- tion policy and regulation of the various jects. sectors in a single institution. Energy. To meet EU requirements, an agency Additionally, it must be borne in mind that in for managing strategic reserves would have addition to the regulators required by the EU, to be created. Alternatively, Catalan energy the future state can create new independent reserves stored in other EU states could be regulatory bodies or agencies and maintain accounted as national reserves; an independ- the existing ones, such as the Broadcasting ent National Regulatory Authority in the field

75 of Nuclear Energy to ensure the maintenance sufficient funds to guarantee the rights to do and safety of operating nuclear power plants with the free movement of workers, which cor- (the EU suggests creating this authority, but it respond to EU citizens living in Catalonia. is not mandatory; in Spain this function is carried out by the Nuclear Safety Council); one or As far as the free movement of capital is con- more private operators of the electricity mar- cerned, a structure with administrative and ket, and one or more private operators of the cooperation capacity would have to be cre- gas market. ated. It would be responsible for disclosure and oversight requirements pursuant to Euro- For the promotion and regulation of cross-bor- pean legislation on payments and combating der networks in Europe, the new state should money laundering and financing of terrorism. ensure the existence of a high voltage net- This structure is currently built into the Bank work operator and gas network operator who of Spain. The same solution could be adopted would carry out the necessary functions for with the Central Bank of Catalonia. the smooth operation of these networks. Financial Services. Oversight functions re- b) Financial system and economic and quired by European law in this area could be social policies developed by a body or bodies in the new state. It is recommended that the Central Bank Public procurement. In this area there would of Catalonia handle the supervision functions be no need to create any new body, since the of financial institutions based in Catalonia and Catalan Public Sector Procurement Admin- the subsidiaries or branches of major Europe- istrative Tribunal could perform the tasks re- an banks active in Catalonia. Likewise, regula- quired by the EU. tion and supervision of financial investments Competition policy. In connection with merg- and market securities could be assigned to ers and antitrust practices, the Generalitat the future Catalan Investments and Markets already has a body – the Catalan Competi- Authority (ACIM). tion Authority (ACCO) – which, equipped with more resources, could carry out the functions Taxation. In this area it would be necessary required by the EU. to have the technological and administrative structures required to manage indirect taxes Company law. A Commercial Register of (VAT) and excise taxes, as well as agreements Catalonia would need to be created, with the to avoid double taxation in relation to direct degree of territorial decentralisation deemed taxes. These functions should be assigned to appropriate, although it could be organised the future Tax Agency of Catalonia. based on the current provincial registers in Barcelona, Tarragona, Girona and Lleida, Economic and monetary policy. The essen- through a transfer from the Spanish General tial element for complying with the EU acquis Administration to the Government of Catalo- would be the creation of a Central Bank of nia. Likewise, a workforce of registrars would Catalonia which would be assigned the duties have to be developed, although current em- specified in the Treaties and in the set of rules ployees might be offered the possibility of that determine the operation of the European keeping their jobs and positions, to later con- Economic and Monetary Union. sider any need for new hires. Statistics. It would only be a matter of bol- Free movement of workers and capital, right stering IDESCAT so it could assume statistical of establishment and freedom to provide processing in relevant areas such as the en- services. The Catalan Social Security Agency, vironment, trade and transport, and develop which would have to be created, would need a complete and self-sufficient production and

76 statistical distribution model capable of inte- the Instituto Social de la Marina and the Port grating functions and powers currently in the Authorities of the ports of Barcelona and Tar- hands of the Spanish National Statistics Insti- ragona. tute (INE). In terms of inspection and control, a special- Social policy and employment. There are ized body of fisheries inspectors would also really few institutional requirements derived have to be created. from European regulations in this area, but currently the Generalitat only handles Labour Financial control. The Generalitat has the Inspectorate and the management of the EU- Comptroller General of the Generalitat and the RES programme through the Employment Ser- Audit Office to be able to exercise financial vice of Catalonia (SOC). The following admin- control in accordance with the criteria of the istrative bodies or structures would have to be Public Internal Financial Control (PIFC). created: a reference centre for the European Both agencies meet the requirements of Eu- Agency for Safety and Health at Work; admin- ropean legislation but would have to assume istrative structures of the various European new powers. In the case of the Comptroller funding mechanisms (ESF, EGF, aid funds for General it would assume control and super- the most needy, Employment and Social In- vision of local government, now in the hands novation Programme) and a National Contact of Spain’s General Comptroller, and areas of Point for the PROGRESS programme. exclusive competence of the state, such as Agriculture and rural development. In this defence and foreign policy. In the case of the context, the new state should strengthen the Audit Office, it would have to take over the role following structures. the Aid Service and Pay- of accounting judgment, which is currently ex- ing Agency of the Department of Agriculture, clusive to the Court of Auditors. which should expand its functions to carry out Regarding the fight against fraud, a unit of co- those currently performed by the Spanish Ag- operation with other Member States (AFCO) ricultural Guarantee Fund (FEGA); based on would have to be set up, as well as a point of units of the Catalan Consumer Agency and contact with OLAF (European Anti-Fraud Of- the Catalan Food Safety Agency, an Informa- fice). Specific units to combat fraud in the field tion Agency could be created and food con- of financial institutions would also have to be trols could be reinforced; and a Catalan in- established (it could be located in the future stitution could be created to carry out these Central Bank of Catalonia) and have a nation- functions in Catalonia based on the five Cat- al centre for analysing coins and bills in order alan insurance organisations that are part of to detect forgeries. the company bringing together and managing agricultural insurance companies at the Span- c) Justice, rights, freedoms and security ish level (AGROSEGURO), bearing in mind, however, that these bodies are private and Judiciary system and fundamental rights. that the formation of a group is voluntary. The new state should be equipped with the administrative institutions and structures nec- Fishing. The Directorate General for Fisheries essary to continue the rule of law. The Gener- and Maritime Affairs of the Generalitat should alitat already has many of these administrative assume the responsibilities of the Secretary- structures and institutions. Others would have General for Fisheries of the Spanish Govern- to be created based on Spanish structures ment, including the management of aid to the currently in place in Catalonia. sector, and developing action plans in relation to structural actions defined by EU law, and Regarding the judiciary, in addition to leg- it should include the two provincial offices of islative requirements, a new judicial system

77 would have be built from the ground up. Cur- ganised crime, terrorism and drug trafficking. rently, the judiciary is not decentralized, but In the second, attempts could be made to try Catalonia has the infrastructure and human/ transferring or adding staff based in Catalo- material resources required to create a judi- nia, which today work for Spain. It would be cial system. The Generalitat of Catalonia has necessary to: powers for the administration of justice, which • Create centres for immigrants, asylum means it owns justice-related buildings. It also seekers and victims of human trafficking. has material and human resources in place. • Designate a national contact point with From this standpoint, the new state would as- EUROJUST (European Agency for Judicial sume all or part of the material means that Cooperation). the Spanish state currently has in Catalonia – • Create a Catalan consular network to pro- whether by transfer from Spain or as a result of cess and issue visas. distribution of assets and liabilities – and staff, offering them new employment in the new ju- d) Education, culture, science and envi- diciary. Regarding training of judges, Barce- ronment lona houses the Judicial School of the General Education and culture. Regarding the struc- Council of the Judiciary. tures necessary for the implementation of In the anti-corruption field, the Fraud Office European programs, the management struc- could take over new control functions over tures for the European Erasmus+ programme public administrations, political party financ- would have to be implemented. The powers ing, money laundering and terrorist financing. of the Agency for Managing University and Research Aid (AGAUR) would have to be de- It would also be able to fulfil the requirements veloped to accept higher education studies, regarding the protection of personal data, re- create focal points of the Eurydice network inforcing the powers of the Catalan Data Pro- and the European Foundation for Quality tection Authority as a competent authority. Management (EFQM), and establish points of contact for the EUROPASS and eTwinning The EU does not require specific administra- projects. tive structures, regardless of the judiciary, for the protection of rights. In any case, it should Science and research. In this regard, it be remembered that Catalonia already has should be noted that Catalan R&D structures some independent authority in this area. It has receive significant funds from Spain and from an Ombudsman, a rights protection authority research structures co-financed by institutions in the field of broadcasting and various institu- linked to the Spanish Government and the Eu- tions for the protection of children’s rights. ropean Union. Therefore, the Government of Catalonia should make an additional financial Justice, freedom and security. Two admin- effort to keep the financial funding of Catalan istrative services would have to be created: a R&D. However, prior to transfer or as a result border control service, which would enforce of the distribution of assets and liabilities, the European rules of access to the EU and an new state may take all or part of the 21 CSIC immigration administration service, manag- research centres located in Catalonia. ing migration flows, both in relation to persons from EU Member States and those from In addition, the Government of Catalonia, third countries. In the first case, new units of through the Ministry of Universities and Re- the Mossos d’Esquadra (Autonomous Police) search, should designate the representa- could be created to assume control of exter- tion structures and national points of contact nal borders and reinforce the police capacity between research programs, especially the in order to take over duties for combating or- Horizon 2020 program, a body coordinating

78 initiatives arising from articles 185 and 187 tion and could take over these new roles. A of TFEU, and an agency for agricultural re- national authority would have to be created in search, which for Catalonia could be the In- the area of noise contamination, which could stitute of Agrifood Research and Technology be taken over by the services of the Ministry (IRTA). of Territory and Sustainability. And a national contact point would have to be created for the Intellectual property right laws. The Gener- Common Emergency Communication and In- alitat Administration today has enough struc- formation System, which could be taken over tures to meet the requirements relating to the services of the Generalitat’s Directorate intellectual property rights. However, the pro- General of Civil Protection. tection of industrial property, which European directives and screenings handle jointly with e) Consumer protection intellectual property, is currently guaranteed by the Patent and Trademark Office, which is Health and consumer protection. In order to a non-regionalised register headquartered in meet EU requirements, it would only be nec- Madrid. The Generalitat should therefore cre- essary to strengthen the agencies – the Cata- ate the necessary administrative structure to lan Consumer Agency – and/or the existing protect this right. administrative structures, such as the aforementioned DGs. This reinforcement should be Environment. The adjustment that should be more intense in certain areas where the Gen- carried out institutionally is inexpensive, al- eralitat currently has no specific powers and though more skilled human resources should the Spanish Government provides consumer be hired in order to take over new responsi- protection – insurance, electronic communi- bilities. However, in some cases new roles cations, certain modes of transport and finan- of a competent national authority, which are cial services, among others. now performed by Spanish ministries, would have to be taken over. Specifically, it would The duties of the Early Warning Mechanism have to be a competent authority to author- (RAPEX) should also be taken over, and a na- ise and agree extraction activity, although the tional contact point should be designated. functions could be assumed by existing insti- Food safety and veterinary and phytosani- tutions in the Generalitat de Catalonia struc- tary policy. The only shortcoming in this re- ture. In the field of waste management, a tel- gard would be in the area of foreign trade of ecommunication equipment market oversight food, animals, feed and plant material, which organisation would have to be created, al- is currently under the exclusive jurisdiction of though the Catalan Consumer Agency could the Spanish state and is implemented by staff also take over these functions. The functions in Spain’s General Administration. In this con- of emissions registry would have to be taken text, specialised foreign control units would over, and a national authority for implement- be created with Generalitat civil servants who ing Kyoto Protocol projects would have to be currently carry out their work in the field of created. A national authority and a national food, veterinary and phytosanitary safety, to service of technical assistance for implement- perform the relevant official controls and act in ing the REACH and CLP Regulations (regis- the four border checkpoints that exist in Cata- tration, authorisation, evaluation and restric- lonia and are currently managed by Spain’s tion of chemicals) would have to be created. General Administration. These functions are currently undertaken by the Ministry of Agriculture, Food and Envi- f) Foreign and security policy ronment and the Ministry of Health, although the Ministry of Territory and Sustainability has Foreign relations. In this context, the new been carrying out functions under this regula- state, in addition to implementing the system

79 of customs and foreign trade border control Foreign, security and defence policy. In this set out in chapters 1 and 29, should strength- context, a possible Catalan state should cre- en the administrative structures of the minis- ate its own institutional structures associated tries of economy, industry, trade and foreign with a foreign diplomatic service, capable affairs in order to exercise its powers in trade of applying a Common Foreign and Security policy which the General Administration of Policy and the EU’s Common Security and De- the State currently carries out, for which it has fence Policy (CFSP/CSDP). ICEX and its extensive network of commercial attachés in Spanish embassies around It would be necessary to reinforce the ma- the world. In this regard, it would be neces- terial and human resources or create new sary to create a similar network based on the Mossos d’Esquadra units to ensure compli- branch network of the Generalitat of Catalonia ance with European regulations pursuant through ACCIÓ. to the protection of classified information. Administrative structures would have to be Regional policy and coordination of struc- created that allow adequate compliance of tural instruments. The Generalitat now has restrictive measures adopted by the Euro- a team of professionals and administrative pean Union with respect to third countries structures in the area of management and con- (in the diplomatic, commercial, security and trol – particularly the Directorate General for intelligence fields). And the new govern- Policy and Economic Development (DGPPE) ment would also have to create mechanisms of the Ministry of Finance and Knowledge and for ensuring compliance with EU decisions, the Generalitat’s Comptroller General, which, strategies and policies (such as strategy to with reinforcement, could take over the man- combat the proliferation of small and light agement, certification and auditing tasks re- firearms or security instruments on classified quired by the administration of EU funds. information).

80 2.3 Catalan Social Security

2.3.1 The Catalan concept ing healthy living conditions. This concept of of Social Security protection by Social Security is totally alien to Spanish Social Security, except for some Social Security is, due to its size, the basic in- special public employees for whom the Social stitution guaranteeing the welfare state in all Security system allows them to enjoy years of European countries. Currently, in Catalonia a aid for the purchase of property, as additional significant number of people are recipients of benefits provided for by their specific group Social Security income. The number of peo- agreements. ple (approximately 2.2 million) that sometime in the last year have received directly from The nine branches of the Social Security Social Security all or most of their financial re- system. What should be understood as part sources is close to the figure of the total em- of the concept of Social Security? Both Con- ployed population contributing to Social Se- vention 102 of the ILO and others from the curity (approximately 2.96 million). same organisation and the European Code of Social Security drafted by the Council of Eu- In the medium and long term, the improve- rope, indicate nine areas that are intrinsic to ments that should be introduced into the So- a social security system: health care; tempo- cial Security system should be guided by the rary disability due to illness; unemployment; principle of respect to Social Security inter- old age; work accidents and occupational national standards. There is no single social diseases; family protection; motherhood; per- security model in the world. In fact, there is manent disability and benefits for death and actually no overarching concept of what is in- survival. This does not mean that all states are cluded in the concept of Social Security. Inter- required to comply with all provisions of trea- nationally, the first common criterion of what ties to each of the areas mentioned. There Social Security is about is Agreement no. 102 may be significant differences between coun- of the International Labour Organisation (ILO), which specifies not only what areas of pro- tries, and not all of them give all branches the tection national social security systems must same importance. have, but also what the minimum intensity of It is interesting to note that internationally this protection is in order to avoid false cover- these nine branches have been considered age. as typical of a social security system, and that It is worth noting that these international each of these branches should meet the es- guidelines establish minimum conditions. tablished minimums that must be met by both Various countries may, however, cover other in relation to the effective capabilities of the social contingencies. For example, in France protected population as compared with the more than six million people receive Social conditions for access to services (for exam- Security aid for housing (similar to systems in ple, the prior contribution period required). It Finland and Germany) as a kind of family ben- also establishes the minimum amount of eco- efit for families with children when it comes to nomic benefits, comparing them to the earn- paying rent, purchasing property or improv- ings of a typical skilled worker.

81 Therefore, according to the spirit of continuity lected would have to be shared with the Tax in levels of social protection as mentioned be- Administration. fore, it would be important for: • The future Social Security System of Cat- The Agency may depend from Parliament. alonia to provide effective and sufficient Agency government could be the responsibil- social protection in the nine protection ity of a steering board aided by a council. branches indicated by the ILO and the The staff serving the Catalan Social Security Council of Europe treaties, which establish system would be about four thousand people. minimum standards; Personnel costs would be close to 130 million • and that in no event changes may be made euros and would have nearly two hundred of- that involve a drop below these European fices and other facilities. standards; on the contrary, we should tar- get the compliance of levels stipulated in In the first stage of the constitution of the new the European Social Charter revised in state, the Government’s activity in this area 1996, since the majority of European coun- should be governed by the principle of con- tries has ratified it, and the revised Euro- tinuity. In the medium and long term, the im- pean Code of Social Security. provements required by European and international standards should be introduced. 2.3.2 Functional and organic In any case, the basic objectives that should aspects steer the activities of the new state in terms of creating the Social Security system could be The Catalan State must have, from the first stated thus: moment of its creation, a social security sys- • The citizens of Catalonia should have tem capable of performing the basic functions guaranteed pensions and other Social Se- of this institution, vital to the welfare state, in curity benefits as they have been recog- accordance with international and European nised in the same conditions until the pre- standards. sent, regardless of the scenario in which These functions are essentially the following the independence process takes place. five: • The citizens of Catalonia have to have the • The collection of Social Security funds. certainty that in the future they will have • The provision of pensions and other ben- access to Social Security benefits of the efits. same quality, at least, as what they have • The actuarial and sustainable design of been able to enjoy so far. • Citizens of other nationalities who have the system and the financial and actuarial worked for some time in Catalonia or who management of reserves. wish to do so in the future should be as- • The management of reserve funds and in- sured that they will be treated as they have vestments. until now in relation to their possible Social • The administration of human resources Security rights, and that in any case the and technological systems. European and international coordination The Catalan Social Security Agency should guidelines will be scrupulously respected. be in charge of performing these functions. To exercise this control, it could make use of 2.3.3 Contributory pensions the indirect public service management tech- and sustainability of retirement niques, provided that this does not diminish pensions transparency and accountability. It remains to be determined whether part of the funds col- The balance (income less expenses) of the

82 Social Security system in its entirety is quite in the Catalan Social Security accounts. On different in Catalonia and the rest of Spain. The the one hand, in the case of an agreed inde- analysis of 1995-2010 data leaves no doubt. pendence process involving the distribution of While in Catalonia Social Security has always assets and liabilities, a portion of the reserve enjoyed a surplus from 1997 to 2008, in the fund will be transferred to the new Catalan rest of Spain surplus was only seen between state. The rate that corresponds to Catalonia 2003 and 2007, and for clearly lower amounts. would depend on negotiation. It would be cor- Moreover, when Catalonia has recorded defi- rect to say that Catalonia should be assigned cits (1995-96 and 2009-2010) it has been, in the part of the reserve fund coming from So- all cases, significantly lower than in the rest cial Security surpluses in Catalonia. This proof Spain, where in 2009 the Social Security portion would be significant, since, as we deficit reached 21.967 billion euros and the have seen in the boom years, Social Security costs of Social Security exceeded 21%, while enjoyed greater surpluses in Catalonia. in Catalonia the deficit stood at 1.254 billion euros and expenditures exceeded revenues However, in the case of a non-agreed inde- only by 5%. And in 2010, when the Social Se- pendence process, or in the case of a nego- curity deficit continued to rise due to the in- tiation of assets and liabilities extended over crease in unemployment, in the rest of Spain time, years after the effective independence, expenses exceeded revenues by 25% (and the new Catalan state would cover the deficit deficit reached 26.317 billion euros), while in with ordinary budgets of its own public financ- Catalonia expenses exceeded revenues by es. If Catalonia had gained its independence only 8.6% (and deficit was 2.142 billion euros). in the 2006-2011 period, once the costs of the current Generalitat and the expenses of the Since the Social Security system has slipped state powers it might have assumed were ad- into deficit in Catalonia due to the economic dressed, it would have had access to an addi- crisis, although it has done so in a much lower tional income of 11.198 billion euros per year proportion than in the rest of Spain, it is im- on average. With this additional net income, portant to ask ourselves how deficit will be ad- there would be no problem in addressing the dressed in an independence scenario, if it oc- Social Security deficit for the duration of the curs when the economy has not recovered to crisis. levels required to generate balance or surplus

83 2.4 The judiciary and the administration of justice

Whatever the creation scenario of a new Cata- dictional divisions, the creation of a board for lan state, the basic objectives which should defending fundamental rights and a board of be ensured in the field of the judiciary and the appeals. justice administration are, firstly, a guarantee of the continuity of the justice administration To ensure the normal operation of the justice and its normal operation, and on the other administration during the transitional period, hand, the establishment of a provisional gov- it is essential to ensure that the existing posi- ernment system for the judiciary. However, this tions of judges, prosecutors and court clerks transition phase is not the time for establishing are covered, at least at the same level as at the new judiciary and justice administration present. Vacancies that may exist for any rea- model to be applied in the new state. Rather, son may be covered by the methods provided this is a matter that should be decided with the for by legislation currently in force and also re- new Constitution. The various issues involved sorting to, if necessary more than at present, in these basic objectives are discussed be- the traditional method of alternates and sub- low. stitutes.

2.4.1 Organisation and The staff of the current justice administration in jurisdiction of courts Catalonia is also made up of various state bodies (managers, handlers and legal assistance After a proclamation of independence, the staff, as well as coroners) that, nevertheless, Spanish courts located outside Catalonia with the Generalitat manages as responsible for es- jurisdiction over the entire country (Supreme tablishing appropriate mechanisms to tempo- Court, High Court and Central Courts, which rarily cover vacancies that may occur. This is should also include the Central Economic Ad- done using temporary staff, appointed in this ministrative Court, although it is not judiciary capacity from the human resource pools man- in nature), as well as the Constitutional Court, aged by the Generalitat’s Department of Jus- would no longer have jurisdiction in Catalonia. tice. For this reason, special problems are not The judicial functions of these bodies in all expected which could jeopardise the ability of matters affecting Catalonia should therefore meeting staff needs. be transferred to Catalan courts (High Court, County Courts, Local Courts). The same can be said of material means, including IT, required by the justice administra- The current organisation of courts in Catalo- tion for its operation, and which are already nia, with the assumption of new responsibili- handled by the Generalitat of Catalonia. ties, would remain basically the same, with the exception of the High Court, which would Once Catalonia’s own judicial administra- have to adapt to the new situation, although tion is established, the Catalan Government with the minimum possible changes. These should, on the one hand, assign the bank that changes would include considering the divi- would manage deposits and consignments, sion of the existing civil and criminal courts in and, secondly, request the bank managing two different areas, one for each of these juris- the deposit and consignment account for the

84 Spanish government to transfer the funds in plementation, ensuring the continuity of cases question according to the specifications of the in processes, including appeals. Catalan courts. Regarding the language system of judicial The normal operation of the justice adminis- proceedings and actions, it would be worth tration requires access to certain files and re- introducing in the incorporation law the nec- cords, some of which are filed by the judiciary essary provisions to ensure the normal use (prisoners, protection of domestic violence of Catalan with a two-fold aim: guarantee the victims, among others) and currently included right to linguistic choice in proceedings and, in the Justice Administration Support Admin- for this purpose, ensure that all staff is quali- istrative Records (SIRAJ), while others are lo- fied linguistically in Catalan and Spanish. This cated outside the judicial system, but in many means that an adequate and sufficient famili- cases can be viewed by the courts through a arity with both languages should be a require- single computer portal (Punt Neutre Judicial). ment for these positions, and not just optional. The Civil Registry likewise deserves special Having established this general principle, we consideration, given its importance and the should distinguish between people who al- recent changes in legislation it has under- ready occupy a position at the time when the gone, with the establishment of centralised new state is created those who are hired after information management. the fact, and establish a transitional regime for the first category. In all these cases, the courts of Catalonia would require access to these records and 2.4.3 Pending processes and files, while the Generalitat would also create the corresponding files and records based on judicial executions the transfer of the appropriate part of the state From the first moment it becomes a new inde- archives and the collection and processing of pendent state, Catalonia should address the new information, from the moment in which in- legal proceedings pending final resolution, dependence is declared. especially in the case of proceedings started in Catalonia and pending appeal in a court 2.4.2 Regulation of court outside Catalonia, and those started in the procedures and language system first instance before judicial bodies outside Catalonia (High Court and Supreme Court) Judicial proceedings are currently regulated involving people with the new Catalan na- primarily by Spanish laws, given the current tionality or, in some cases, resident in Cata- distribution of powers between the Spanish lonia, or Catalan governments or institutions. government and the autonomous communi- Likewise, open procedures with the Consti- ties. Should the Spanish system break up tutional Court which could affect persons or there would therefore not be applicable pro- institutions in Catalonia should be taken into cedural law in force. To avoid the regulatory account. gap that would occur, and for reasons of legal certainty, it would be advisable to keep the In all these cases, the procedures should be procedural law applicable at the time when followed according to the procedural rules in the new state is created, incorporating it pro- effect at the time of the proclamation of in- visionally into the Catalan jurisprudence, with dependence (which would have been incor- any appropriate modifications, as we wait for porated in the new Catalan constitution). The the Parliament of Catalonia to legislate on the question that arises is which court should matter. The incorporation law should also in- continue dealing with these cases. There are clude the transitional arrangements for its im- two possible general solutions. First, send af-

85 fected cases to the new Catalan courts to be 2.4.4 Provisional judiciary assigned to the bodies that replace them and system of government are competent in the new judicial organisation. And, secondly, continue the cases in the Since the creation of the new state until the Spanish courts until their final resolution, and approval of a new constitution, it would be subsequently recognising these resolutions. necessary to establish an interim judiciary Either criteria would adequately resolve this system for Catalonia, through the Interim Con- temporary situation, with each case present- stitution Law. This interim system should not ing advantages and disadvantages. Choos- predetermine the final institutional model of ing one solution or the other (or a combina- governance for the judiciary adopted by the tion of both, could even be differentiated by future Constitution. In this case, however, and jurisdictions) will depend on political circum- in contrast with other institutions and issues, stances and specific negotiation established it is not possible to continue with the sys- with any agreements that may ensue. tem currently in force, as it would require the creation of a new body similar to the General The Constitutional Court is a case in point. In Council of the Judiciary. Thus, the new model fact, the only affected cases (at least poten- that would determine the future Catalan Con- tially) would be the appeals issued against stitution would be defined in such a way that decrees by Catalan institutions or bodies (or, would be difficult to reverse. less likely, nationals and/or residents in Cata- Joint Committee of the TSJC Board of Gov- lonia). However, all other procedures pro- ernors and the Generalitat Government. cessed by the Constitutional Court would be The models which would have to be used in repealed. Regarding appeals, and as long the interim period may be diverse. It would as the regime of basic rights and liberties ap- seem that the most appropriate model would plicable to Catalonia were during the given be, in the interim, for the Generalitat Govern- period the same as the Spanish Constitution, ment and the Board of Governors of the High the same criteria applicable to procedures fol- Court of Justice to share government func- lowed in ordinary jurisdiction could be appli- tions. This solution provides a certain degree cable. In any case, from the moment in which of continuity (the Board of Governors already the new state is established, the resources for collaborates with the General Council of the the protection of fundamental rights should Judiciary in governance of the judiciary) follow the provisions of the Interim Constitution and would not prevent the future Constitu- Law of Catalonia, and could not be brought tion from switching to a council system. By before the Spanish Constitutional Court. contrast, establishing an interim council – in addition to the added complexity of regulat- Regarding the issue of judicial executions out- ing it and re-creating it – would complicate a side Catalonia issued by Catalan courts and hypothetical subsequent change of govern- executions in Catalonia ordered by external ment functions, in whole or in part, towards courts, outside Catalonia, including, signifi- the executive. cantly, the Spanish courts, these cases should be resolved via the relevant judicial coopera- In this interim system, the Board of Governors tion agreements which should be formalized of the High Court of Justice of Catalonia could in terms of reciprocity between Catalonia and assume certain government functions and other states, including Spain, following the others could be attributed to a joint committee framework of European judicial cooperation of the Board of Governors and the Generali- both in the criminal and in civil spheres, which tat Government, equally. Apart from this, both is based on the mutual recognition of judicial the High Court Board of Governors and the orders. Justice Department would maintain their cur-

86 rent responsibilities. The Justice Department would also assume the duties now assigned to the Ministry of Justice.

87 2.5 Law enforcement and defence

While there is already a law enforcement mod- ers. Coordination and intelligence are at the el in Catalonia – based on citizen safety and core of law enforcement practices. Police and emergency management – we have not been military forces are alternating functions. What able to develop many other components that differences remain have been partially blurred are part of any state’s basic internal security in some cases, a fact that gives some police structures because they are currently pow- forces more clearly military or defence func- ers of the central government. And, therefore, tions. the components related to international law enforcement have not been created or devel- Catalonia’s current law enforcement system oped. has been built around two main components: public safety, provided mainly by local police Law enforcement is a public good that a state and regional police, and emergency manage- must necessarily provide its citizens. Law en- ment, combining professional and volunteer forcement is both a right for citizens and a duty forces. Alternatively, there is also everything for the state, a fact which implies it should be related to private security. The model has a provided as a guarantee and also as a ser- clear public security outlook. vice. And in an increasingly interdependent world, providing law enforcement requires co- 2.5.1 Defining elements of the ordination both internally and internationally. new law enforcement system

Law enforcement provision is linked to the Catalonia, due to its size, economic structure provision of freedom and justice. Providing and geographical/geopolitical location faces law enforcement requires supplying various risks and threats similar to other European instruments, distinguishing between the field countries. It faces no territorial threats from of internal security (limited to what happens its neighbours, at least not militarily speaking. inside a country’s own borders) and the field In addition, Catalonia will continue to be em- of external or international security (linked to bedded in the European, international scene facts, actors or international, cross-border re- with strong transatlantic relations, so it will use lations). Providing domestic and international EU internal and international law enforcement law enforcement is linked to many other public standards as its benchmark. policies and can take over very different organisational forms. The fact of being a country with newly established borders will intensify some risks and It must be borne in mind, however, that the law threats, due to the combination of difficulties enforcement strategies of Western European related to a transition towards a broader law countries and organisations, although distin- enforcement model and the need to restruc- guishing between internal and international ture the existing model. law enforcement, focus almost on the same threats: terrorism, cyber security, energy se- Worth noting also are the difficulties arising curity, fighting organized crime and protecting from uncertainty about the degree of collab- basic or critical infrastructures, among oth- oration with the Spanish state and the need

88 to quickly implement many decisions that in- • Create a border control unit and provide crease the complexity of managing the sys- it with proper facilities, with international tem. We must be very careful and cautious as advice. This unit should fulfil functions and we strive to realise – based on shared inter- have the expertise to act as border police, ests and with the support of European organi- customs police, and coast guard. sations and third countries – the coordina- • It should be developed as an embryo of tion, transfer of information and joint work with one or more units for border control or pro- Spain to prevent cross-border and shared tecting national spaces. threats. • Study the more complicated case of airspace control, seeking initial support to 2.5.2 Options and actions in the implement it until the proper equipment is made available. field of internal law enforcement • Prepare tenders or procedures to have the Investigation of internal and transnational necessary equipment. organised crime. The immediate actions to Civil identity registry. The immediate actions be taken are as follows: to be taken are as follows: • Strengthen existing capacity of the Mos- • Create an identity registry unit within the sos d’Esquadra (CME) as specific unit. CME. • Coordinate the functions of the CME unit to • Set up a transitional information transfer the future intelligence service, awaiting the mechanism with Spain which could fore- decision to see if the intelligence service see, in the future and depending on a pos- becomes a specific unit, as is the case in sible dual-nationality scheme, permanent other countries. collaboration and information transfer sys- • Initiate actions under standards compara- tems. ble with Interpol, Europol and other similar • Set up the transfer of databases and logs bodies. on vehicles and driving licenses, as well as mechanisms for cooperation and coor- Terrorism and drug trafficking. The immedi- dination with Spain and other countries. ate actions to be taken are as follows: • Create a counter-terrorism unit based EU- Immigration. Establish, with advice from the developed tools, approaches and assess- EU, an initial collaboration mechanism with ment/guidance documents. We must pay Spain while a specialised group – independ- particular attention to the significant present from CME – is created and provided with ence of jihadism in Catalonia and what we staff and equipment. know about the radicalisation processes of its members. We could envisage subse- Arms control. The immediate actions to be quently hiring personnel from similar ser- taken are as follows: vices in existence today. • Create an arms control unit as part of CME. • Pursue, within a co-operation scenario, the • Set up a transitional information transfer transfer of existing information and, in turn, mechanism with Spain which could fore- provide coordinated monitoring of chang- see, in the future and depending on a pos- es. sible dual-nationality scheme, permanent • Request advice and establish collabora- collaboration and information transfer sys- tion agreements with the main specialised tems. agencies in Western countries. • Set up the transfer of databases and records on the matter, with cooperation and Border control. The immediate actions to be coordination mechanisms with Spain and taken are as follows: other European countries.

89 Environment. The immediate actions to be 2.5.3 Taking on the civil taken are as follows: protection and emergency • Create an environmental protection unit management tasks guaranteed – initially as part of CME – leveraging the until now by the central existing elements and partial capabilities, government including Rural Agents. • Establish coordination mechanisms and It will also be necessary to take over the civil seek advice from the EU and internation- protection and emergency management tasks al, specialised organisations in Spain to guaranteed until now by the central govern- ensure that we meet standards and best ment. In this area, a new plan for civil protec- practices. tion and emergencies should be prepared, with a restructuring in keeping with Catalonia’s Intelligence. The immediate actions to be tak- condition as a new state, both in terms of in- en are as follows: stitutional and technical/operational bodies. • Begin building a civil and multidisciplinary Moreover, if necessary, an operating unit for intelligence service, with the legal frame- addressing complex emergencies should be work to ensure that its actions are consist- established based on the Firefighter Corps ent with the rule of law and guarantee- and the City Council, and protocols and co- ing the protection of fundamental human operation agreements should be established rights. Do so seeking international advice with emergency services from neighbouring – from diverse sources. Its basic function countries. would be to strategically collect, analyse, interpret and process information to favour decision-making. 2.5.4 International coordination • Ensure coordination of services through with police forces proprietary service instruments and others From the point of view of international police that the Department of the Presidency may coordination, within the EU, as long as Cata- recommend or develop. This coordination lonia is not a full member, coordination (using does not undermine the fact that there may permanent links and cooperation protocols) be several independent services, or at and compliance with the plans and stand- least operating units. ards of the European Police Office (Europol) • Establish early co-operation and coordina- should be ensured. Compliance should also tion with Spain and European and Western be guaranteed with the European Agency for countries and organisations. the Management of External Borders of the Cybersecurity. The actions to be taken, tak- Member States of the EU (Frontex), the Euro- ing advantage of the existing public capaci- pean Agency for cooperation in judicial mat- ties and also in the private industry field, are ters (Eurojust) and the Standing Committee on as follows: Internal Security (COSI). And internationally, • Create a cybersecurity unit or service, with we should request admission to Interpol. advice and operational support from external companies and services, and based 2.5.5 Options and actions in on existing capabilities. the field of international law • We recommend starting with the plan of enforcement action against cybercrime adopted by the Council of Europe (2010), the various Eu- Catalonia will have to resolve, in the context ropol guidelines and the EU’s Cyber Secu- of full integration as a member of the inter- rity Strategy (2013). national community, many issues related to

90 its presence in security agencies, treatises mon Security and Defence Policy CSDP, part on the matter, and especially coordination in of the Common Foreign and Security Policy. international security. So far, all these issues We believe that the various EU treaties, strat- have been the responsibility of the central egies and instruments should be taken as a government. starting point in designing Catalonia’s security policy. We consider four cases: transatlantic relations with the United States, membership in the 2.5.6 Operating model, bodies, OSCE, membership in NATO, and member- contingents and organisation ship in EU security structures and agencies. There are at least three problems that must be Regarding transatlantic relations and treaties solved in the medium and long term and for with the United States, it would be necessary all three there are several options to consider to formally demonstrate from the outset Cata- before choosing. lonia’s desire to have close relations with the United States and in this context, forge strong First, especially in the area of internal secu- transatlantic relations. rity, is everything relative to the model of relationship or consolidation between local police As for membership in the Organisation for Se- and the Mossos d’Esquadra. curity and Co-operation in Europe (OSCE), which plays an important role in human rights The second major problem concerns how to mediation and protection issues, we consider organize defence forces, or, stating it clearly, that, despite how difficult it is to be accepted the option whether to create an army or not, (requires unanimous approval) we should ex- and if so, the options on existing models to im- press Catalonia’s interest in being a member, plement the decision. sign and implement the principles and agreements of the organisation. Catalonia’s situation presents an important advantage. It can create a model from As for membership in the North Atlantic Trea- scratch, bypassing the problem now faced ty Organisation (NATO), worth noting are the by European countries, who are quantitatively changes in the organisation, the new member- and qualitatively changing their armies, creat- ship mechanism and the organisation’s role in ed centuries ago, when armies were created the creation of the Partnership for Peace pro- to defend borders from possible invasion by gramme, based on the bilateral relations be- other armies. This approach no longer makes tween individual countries and NATO, where sense due to a lack of territorial threats. almost all European countries are present. The following could be considered: The issue is now looked at very differently • Request and negotiate Catalonia’s partici- from how it was seen in the 19th and 20th cen- pation in the Partnership for Peace. turies. Catalonia can opt for two general mod- • Decide on possible membership at a later els: with or without army. If the country were to stage, once the major defence and securi- opt to forego a traditional army, in the sense ty options under the constitutional process of an army in widespread use in the western can be duly considered. world in the 19th century, there would be two main ways to organize the defence policy: In terms of membership in EU security struc- • Expand the functions of the Mossos tures and institutions, it is worth noting that d’Esquadra force, making it take over ex- full membership implies some very important ternal and/or defence functions, which tools in the field of international security, es- would imply a partial militarisation of some sentially intergovernmental, such as the Com- parts of the Mossos units and forces.

91 • Create an autonomous National Guard deployed in the field of cyber defence and in- which would handle security, defence or telligence, understood as the ability to investi- emergency management functions, coor- gate and prevent future attacks. dinated with other law enforcement agencies. In order to strengthen this aspect of cybersecurity in the government sector, we should The second major model is to create an army take into consideration the adoption of the fol- which, given the new conditions, could be lowing measures: very different from the typical armies which • Maintaining co-operation with different existed until the end of the 20th century. Nat- Spanish organisations, such as the CCN- urally, there could be various effective ap- CERT and INTECO, to ensure the secu- proaches for structuring this army and making rity of common cyberspace; ensuring that it operational. agencies responsible for implementing the National Information Security Plan can Thirdly, once either of the options is decided defend the country from cyber-attacks; (with or without an army), and in each case a starting conversations and making con- choice is made for one of the possibilities, the tacts with other Computer Emergency Re- next step would be to make decisions regard- sponse Teams (CERT) in the Catalan and ing force size, control, selection processes, international spheres, in order to have as equipment and temporary admission of for- many allies as possible in this field. eigners. We must insist, however, that major • The protection of the public data of citizens decisions should be taken during the constitu- of Catalonia, as well as data processing ent process, although the operational and im- centres (DPC) used by the Government, plementation decisions will be postponed. through the preparation of a disaster recovery plan with alternatives, if necessary, 2.5.7 Cybersecurity outside Catalonia. • The preparation of databases for having Given the importance of cyberspace in to- an operational electoral system, identifi- day’s society, the concept of cybersecurity is cation documents and an Inland Revenue increasingly present in the personal, profes- system ensuring suitability and accuracy sional and, above all, government spheres. of data in the treatment of citizens and There are many cases where computer at- businesses. tacks have jeopardised economic sectors, • The creation of a single ICT command critical infrastructure and even government structure in Catalonia, which includes the information systems. main agencies with jurisdiction in the matter. Catalonia is aware of this threat and since 2009 has a national plan in place to boost ICT Interpol. Established in 1923, the Internation- security in Catalonia, deployed by the Infor- al Criminal Police Organisation currently has mation Security Centre of Catalonia (CESI- 190 members and focuses mainly on public CAT). safety, terrorism, organised crime, human trafficking, arms and drugs, child pornography, However, not all protection objectives are op- money laundering, financial crimes and cor- timally covered by this body. While the perim- ruption. It has two main governing bodies, the eter and interior of Generalitat ICTs are under General Assembly and the Executive Commit- constant monitoring and control by CESICAT, tee, as well as a Secretary General. and although there is some co-operation between this agency and law enforcement (Mos- Membership is by a favourable vote of two- sos d’Esquadra), more capabilities must be thirds of the members of the General Assem-

92 bly. Given the current situation of the fight ganisation. Therefore, membership should be against certain forms of international terrorism, sought during the first phase of integration in it seems obvious that it would be in nobody’s the international community. interest for Catalonia to remain outside this or-

93 2.6 Infrastructure: energy and water supply and information technology and communication

2.6.1 Power supply tional companies who handle the full cycle of the business, which ensures the availability of With 2009 data, energy consumption in Cat- energy, maintenance, development and ex- alonia stands at 14,550 kTEP/year, of which pansion of their facilities, as well as the most only 5% comes from own resources. Primary appropriate management. In any of the future energy consumption is distributed as follows: circumstances that could play out, these com- 47% oil, 25% gas, 20% nuclear, 7.5% renewa- panies consider Catalonia a significant part bles and waste and 0.5% coal. of their market, and business interests themselves will ensure that management will be as Catalonia, like most European countries, has efficient and standardised as possible. no ability to self-supply crude oil, natural gas or uranium. However, it does have appropri- The contribution of renewable energy produc- ate facilities and processes to handle supply, tion in Catalonia is currently still very small and storage, production, processing and distri- it would need to increase. Therefore, commit- bution of derivatives to meet energy demand ment to renewable energy stands out as one and ensure optimal consumption. of the priority energy strategies, both end-use technologies such as thermal technologies Likewise, the Catalan electrical system is and for production of electricity. Likewise, the structurally oversized and can guarantee future Catalan energy system should promote 100% of demand. It has a 40% power safety enhanced energy recovery from waste, both margin, 20% of which is technically required renewable and non-renewable. reserves and 20% is surplus capacity. With a hypothetical 3% annual growth in power de- Measures. To ensure a proper energy transi- mand, the current Catalan power generation tion in Catalonia during the transition towards capability could successfully cover the Cata- independence, a series of measures must be lan market until 2020, without having to build adopted, including the following: new plants. The Catalan electrical system • Securing strategic suppliers and renewing could supply energy at prices 30% lower than and continuing the regulatory framework the Spanish power system. An independent of the energy policy, using the existing Catalonia would be one of the EU countries contracts with companies that already pro- with the lowest electricity prices. vide these services in Catalonia. The 2012-2020 Catalan Energy and Climate • Ensure compliance with regulatory provi- Change Plan also provides for the entry into sions on energy security. service of new interconnection lines that will • Establish and develop rules, regulations, significantly boost the already good Catalan planning and implementation of the Cata- exchange capacity with its adjoining systems. lan energy system. This would imply negotiating the main installation transfers or In view of the major liberalisation and inter- uses, regulating and operating agencies connection of the energy market, ownership (Spanish) and services that might have to of most of the energy infrastructure in Catalo- be replicated in Catalonia. nia belongs to private investors and multina- • Ensure energy supply in the country, pay-

94 ing particular attention to the control of fa- rarily allow ENRESA to continue radioactive cilities located at ports and airports. waste management, and analyse and decide • Have a shared vision of all energy systems on an centralised, interim solution for radioac- and their installations, and know how to tive waste. ensure protection. • Have a good system for regulation and Measures related to renewable energy management of the energy market to en- Convert the use of renewable energy sourc- sure competitiveness of supply and envi- es and energy efficiency as a national prior- ronmental protection. ity; promote R&D in this area; put in place a • Conduct an audit of the entire system to regulatory framework to develop and reward get an accurate picture and provide ap- own these technologies and ensure economic propriate service, economically weighted viability; and integrate renewable energy to based on actual costs. future electric energy storage systems and in- • Create a management team that would terconnection with neighbouring countries. take over the political and technical functions which would ensure the proper op- Electricity-related measures eration of the energy system. • Fix regulated costs of energy prices (oil, International power contracts should be es- electricity, etc.) and ensure the tariff struc- tablished in coordination with the Iberian Elec- ture. tricity Market (MIBEL). • Subscribe Catalonia, following the estab- Once the system is stabilised and in regular lished procedures, to international energy operation, the priority would be to implement organisations. the goals set out by the EU for 2020 and sum- • Ensure that energy services are fulfilled in marised in its 20/20/20 Strategy. Coordination any stage. Apply international law, espe- agreements should also be set up with Span- cially in the nuclear field. ish energy operators to ensure the construc- • Ask for the delimitation of Catalonia’s tion of new priority facilities and natural gas coastal waters to ensure the use of fossil and electricity connections with France. energy resources (oil, gas), renewable energy (wind, waves, currents) and facilities At the same time, it would be advisable to es- currently under construction (Casablanca tablish a technical committee to coordinate oil well). energy management together with Spain and France, negotiate with the Spanish govern- Measures especially affecting the gas sec- ment the possibility of becoming a member of tor ENUSA and increase ties with Mediterranean Remain connected to the peninsular gas sys- countries in energy-related areas. tem, ensuring interconnection with France Among other measures, we should also an- – via MIDCAT – and promoting an organised ticipate and adopt a solution for the future secondary natural gas market (gas hub), location of Catalan nuclear waste; create the which could include all southwest Europe. necessary measures to promote bilateral Measures related to nuclear energy agreements between electricity market operators, both for buying and selling energy; Continue uranium conversion and enrichment increase energy self-sufficiency; reduce de- processes and production of fuel elements in pendence on fossil fuels and improve energy the current plants and factories located out- efficiency throughout the process of genera- side Catalonia; not modify the origin of ura- tion, transmission, and especially in reducing nium or contracts with fuel suppliers; tempo- primary and final energy consumption.

95 Finally, it would be necessary to improve the The adoption of the Water Framework Direc- quality of energy services, modernise distribu- tive (WFD) has been a watershed event in the tion networks, reduce environmental impacts conception of water and management poli- and increase social awareness on the man- cies. According to the WFD, on 23 November agement and efficient and responsible use of 2010 the Generalitat Government approved energy. And also track energy oligopolies and the Management Catalonia River Basin Dis- influence lobbyists’ influence. trict Management Plan (PGDCFC), based on radically different foundations than those Responsible and collaborating manage- which inspired the Hydrological Plan for Cata- ment. In view of the liberalisation and inter- lonia basins in the last quarter of the 20th cen- connection of the energy market, a scenario tury. The PGDCFC is the water planning tool of belligerence with Spain or industry compa- for the 2010-2015 period within the territorial nies is not likely. Collective and responsible jurisdiction of the Generalitat of Catalonia and management among all parties is more like- has a double objective: ly. In the case of non-collaboration, however, the Catalan energy system would operate Environmental: go from a performance of with total normality and energy supply would 48% to 56% in very good or good ecological, be guaranteed. The new state should adopt chemical and/or quantitative condition of wa- measures relating to renewals of agreements ter bodies. For Catalonia as a whole, the goal and contracts with companies that currently is to go from 60% to 67%. provide services and negotiations for transferring assets with Spain. Water availability: resolving the historical risk situation mentioned, ensuring that the supply In this regard, it is important to establish a systems do not face emergency situations un- fluid and ongoing connection with European der any known weather situation, drastically energy agencies, especially those linked to reducing the frequency and intensity of use energy security. This should allow finding Eu- restrictions (including agricultural irrigation) ropean cooperation channels. and ensuring environmental flows for water ecosystems. The proposed actions, some of Finally, Catalonia should study the creation which have already been implemented, are or adaptation of some technical bodies such aimed at maintaining this guarantee until the as the Catalan Energy System Supervisory 2027 horizon. Agency, a Catalan Electric System Operator, a Catalan Gas System Operator and a Nuclear The PGDCFC has a program called PGDCFC Safety Council. Measures Program which specifies the set of measures both in terms of infrastructure and 2.6.2 Water supply management, funding and promotion, in order to achieve the objectives outlined in the Plan. Erratic rainfall, typical of the Mediterranean It has a ten-year projection (2006-2015) and is climate, compounded by the historical lack of divided into four action areas: supply, sanita- investment in supply infrastructure and defi- tion, environment and irrigation system mod- ciencies in water quality as a result of pres- ernisation. sure from human uses, have contributed to the past establishment of a water system in Cata- The legal and technical framework of the EU lonia with a high risk in terms of water supply, is available for planning, regulation, manage- especially in the Ter-Llobregat management ment and control of water in Catalonia until system, where more than 80% of the popula- 2027 (WFD horizon), as well as measures to tion of Catalonia lives. Currently this risk has be implemented in order to achieve the objec- been greatly reduced. tives set out, in view of the development and

96 approval of subsequent management plans. There are two types of measures that should The roadmap seems clear. be taken into account:

The water risk for Catalonia is directly corre- Measures to reduce inherent risks in water lated to the likelihood of suffering water use supply during the transition period. These restrictions due to the effects of a drought or include assuming and exercising full pow- a very low level of water reserves, for exam- ers in the management and control of water ple. In recent years this structural deficit has resources and resume supply activities as been especially limited to the Ter-Llobregat specified in the action programme: recovery management system, thanks to the partial im- of wells and aquifers, modernisation of DCFC plementation of infrastructures contained in irrigation systems and re-use within less than the program of measures created as a result 20 km for water treatment plants. of the 2007-2008 drought. Today, the deficit in the Ter-Llobregat system is almost nonexist- A new 2016-2021 management plan and a ent, due to the significant water savings that new action programme should also be drafted. has been carried out. These should include the entire Catalan river basin and agreements relevant to the interna- Moreover, current DCFC water reserves en- tional management of river basins affected with sure the satisfaction of ordinary demands Spain, Andorra and France, and establish infor a period of 15 months (late spring 2015). terim agreements with Spain on water manage- However, in the medium to long term, some ment and until the shared management of the action may be necessary in order to address international Ebro river basin is not negotiated, structural improvements to ensure supply, in in accordance with the WFD. Similarly, opti- accordance with the water planning stipula- mal operation of the over 440 water treatment tions. The supply vulnerability in the Intercom- plants in Catalonia should be ensured. munity Catalan Basins (CCI) is extremely low and therefore the intrinsic risk is negligible. Measures to prevent extrinsic risks stemming from Spain’s non-cooperation at- In the process of transition towards independ- titude. Mediation or appeal mechanisms ence, the water system risk in Catalonia may with the European Union should be explored also be determined by factors completely be- should the CHE drinking water supply ser- yond rainfall levels, the state of water reserves vice, irrigation system or aquatic ecosystem in reservoirs, aquifer piezometric levels, de- maintenance be affected. Likewise, alterna- salinated water production and the volume of tives should be sought for finding water sup- reused water. The attitude of the Spanish gov- ply wherever possible: groundwater reserves, ernment in the exercise of its responsibilities pumping water to irrigation canals, diversion for regulating and granting of water to the CCI of the Siurana to the Ebro, etc. could also aggravate this risk, although for operational, European legislation and interna- Once the new Catalan State is established, tional nuclear safety reasons, we consider this water planning should be defined with meas- a minor and highly unlikely risk. ures such as the following: • Analyse and, if appropriate, amend tax law To reduce the risk exposure of the Catalan to resolve current water rate tax differences. water system during the transition towards in- • Address whether the water cycle needs to dependence, the Catalan Government should be unified into a single legal framework. be able to regulate the water supply system • Pursue a water planning policy beyond by means of such a regulatory mechanism 2027. such as the ACA so it can act as a water regu- • Take into account the impact of climate lator in the interim. change on the water cycle.

97 • Review the administrative operation of 2.6.3 Communication and wastewater treatment systems and define information technology the powers and responsibilities of local and supra-local in the management and Modern societies, such as Catalonia, currently operation of these systems. live in total dependence on technology. Every- • Resume sanitation efforts (improving water day activities such as watching television, get- quality), to move forward in improving the ting cash from an ATM, checking social media quality of rivers and groundwater. and making a phone call depend to a greater • Advance in environmental actions or lesser degree on information systems and (improvement of aquatic ecosystems), tak- telecommunications networks, what is called, ing into account the country’s rivers (espe- generically, information and communication cially the Ter, Llobregat and Segre). technologies (ICT). • Rethinking the use of the Garonne river Since they are key to normal society life, ICTs area. should be able to operate without significant • Modernising irrigation systems, harmonis- problems, and this normal operation should ing uses of the Segre and Noguera Pal- be ensured exactly at the height of the con- laresa and reviewing the hydroelectric op- stitution of the new Catalan state, which is eration scheme. why it is important to establish co-operation • Foreseeing the possibility of water relief scenarios with Spain. In this area the adop- (for critical cases) from the Ter-Llobregat tion of the following measures should be con- Water Consortium (ATL) to the Tarragona sidered: Water Consortium (CAT). • Coordinate with Spain the orderly transfer • Focusing investments in the most intensive of ICT responsibility and ensure that at no distribution and treatment networks, and time any power or contract be exposed to the treatment plants of the Intercommunity a situation of legal uncertainty. Catalan Basins. Addressing the moderni- • Create a legal/technical team to begin the sation of the Canal d’Urgell to improve ef- process of preparing a draft law on criti- ficiency ratings. cal infrastructures, including among other • Applying the European directive for im- things, the definition from an ICT approach, proving the environmental status of the the obligation of managing companies to marine environment no later than 2020. create plans for disaster prevention and • Encouraging the promotion of public par- recovery, physical and cyber protection ticipation in decision-making about the of facilities, co-operation with the Mossos management, regulation, planning, in- d’Esquadra and/or security companies to spection and control of water in Catalonia. ensure physical integrity and alignment • Anticipating and preventing the conse- with the national cyber security plan. Like- quences for water supply derived from wise, we should think about the desirabil- achieving the saturation horizon of the ity of establishing the role of a government Barcelona Metropolitan Region (RMB). representative in managing these compa- Analysing and evaluating possible alterna- nies in case of emergency. tive water supply measures in a long-term • Create a legal/technical team to begin the horizon (interconnection of urban water process of preparing a draft decree where- supply networks, new Foix and Tordera II by relations with Catalan radio amateurs to desalination plants, Rhône transfer, con- serve as a communication alternative in nection between Segre and/or Ebro basin the event of disaster, in line with European and coastal basins, and long-distance re- regulations that allow for this. use (Besòs to Ter). • Start the preparation and drafting of a draft

98 law on electronic communications (tele- Telecommunications. The vast majority of communications and broadcasting) to en- citizens have a mobile phone allowing voice sure legislative continuity in this area. communication and, in many cases, Internet • Begin to prepare numbering and frequen- connection. This technology is based on net- cy plans that would correspond to the new works and antennas operated by private com- state. panies due to the liberalisation of the telecom- • In line with European regulations, assess munications market. the possibility of developing a law for the In addition, the Generalitat of Catalonia has telecommunications regulatory body (cur- a fiber optic network (XFOCAT), currently un- rently the Telecommunications Market der implementation, which will connect most Commission, CMT) which in the new state of its offices. Any surplus available from this would have to be the union of the CMT and network will be made available to operators the Broadcasting Council of Catalonia, as for access in any town in Catalonia. Also, re- in other European countries. garding the Internet, operators can exchange • Start making international contacts with data with the “network of networks” through the international governing body of ICTs, Internet traffic exchange points. Catalonia has the International Telecommunication Un- CATNIX as an Internet data exchange point on ion (ITU). It would also be advisable to es- the Internet, where all operators have access. tablish contacts with organisations such as the Internet Corporation for Assigned There is also a digital and encryption-enabled Names and Numbers (ICANN) and others voice communication network called RESCAT, in the industry that could help prepare the which is used for emergency service commu- technical plans and legislation, as is com- nication. This network uses the same network mon worldwide. infrastructure as broadcasting (Collserola Tower, main repeaters 500 additional towers) Broadcasting. As far as broadcasting is con- to operate. cerned, it should be noted that television and radio are essential services for citizens, but In this area the adoption of the following meas- especially to generate a climate of normality. It ures should be considered: is therefore very important to not interrupt this • Agree with Spain to maintain the +34 in- service. ternational prefix until Catalonia obtains its own international code. In Catalonia, the radio and television signal • Protect the RESCAT network and create al- reaches 85% of the population through the ternatives in the event of any disaster. Collserola Tower and 8 major repeaters. For • Protect government communications, it to reach 99.6% of the population, 500 ad- adopting appropriate protective measures ditional towers have had to be built. regarding voice and data encryption at the appropriate levels. In this area, coordination efforts should be • Deploy the fiber optic network in Catalonia made with Spain for the transfer of the radio (XFOCAT) as quickly as possible, espe- spectrum for the Catalan territory, as well as cially with regards to the strategic backup the contracts and broadcasting rights of the points. various media groups, ensuring the safety • Coordinate and develop a plan for the proof the audiovisual telecommunications infra- tection of wiring, voice and data facilities, structure, such as the Collserola Tower, the mobile phone towers and Wi-Fi facilities, to 8 major repeaters and 500 towers scattered protect them against disasters within the throughout the region, and begin drafting a critical infrastructure legal framework. This disaster recovery plan. plan should include protection against in-

99 terference and certification of security in on file, which helps it manage the services communications to Catalonia. provided pursuant to its attributable powers. These data include census, medical history, Transport. Transport, whether road, rail, sea legal situation, tax data or academic qualifica- or air, is of crucial importance in ensuring nor- tions of a person, among others. mal life for people and also for tourists. Modes of transport rely, to a greater or lesser extent, Some of the information systems are owned on ICTs. or are under the control of the Generalitat of Catalonia or local authorities. But others are in On the one hand, air and sea transport rely on the hands of Spain, and the Generalitat has electronic communications to communicate access to consult records. We have detected with port and airport infrastructures. Currently, that up to 150 software applications crucial to all communications in these two transport ar- the Generalitat’s operation require databases eas are fully controlled by Spain. Everything located in Spain’s IT systems. seems to indicate that during the transition things would work with complete normality, There are other important data that are not the given the strong dependence on international government’s responsibility: the financial data standards, the implications for user safety and of citizens. This information is essential, for the economic implications which a malfunc- example, so that cash can be withdrawn from tion in these transport methods would entail. an ATM, provided that it is connected with the bank’s head offices. The financial system On the other hand, rail transport depends on is therefore based on proprietary information control centres for proper operation, since systems where data is stored and telecom- manual management would result in partial munications networks that connect the vari- operations. Having this service stop would ous banks and ATMs with the head office. Pro- have effects on a large part of the population that uses it daily, and on the economy. tecting the financial system ICTs should be a priority in order to guarantee citizens’ normal Finally, in terms of road transport, special note economic activity. should be taken of road signage, which might stop working if there were a problem with the The universal postal service, “Correos” in ICTs supporting the system. It should also be Spain, is a service which all states offer citi- kept in mind that, increasingly, the logistics zens and which Catalonia would provide were and merchandise distribution industry works it to become an independent state. Currently, with work order and distribution systems man- the Generalitat does not have any control over aged with information systems and, therefore, the management of the postal service in the an ICT failure would endanger the related Catalan territory. economic activities, for example food delivery Emergency services are essential, and their to shops. proper operation affects other services such In this area, Catalonia would have to coordi- as telephone connection (in this case, 112), nate with Spain a transfer of assets associ- the operation of the voice communication ated to air, maritime and rail transport, and RESCAT network and access to medical re- strengthen monitoring of information and cords, vehicle license plates and legal status communications systems and telecommuni- of citizens. cations installations in rail control centres and the Catalan Traffic Service. Therefore, in order to guarantee public government services, postal services, financial Essential services. Currently, the govern- services and energy and water supply, the ment has significant amounts of citizen data state would have to coordinate with Spain the

100 availability of databases which Spain owns in ensure smooth operation of all public and pri- order provide these public services in Catalo- vate services, including financial institutions, nia, protect the public data of citizens of Cata- transport, energy, water, 012, 112, and any lonia and coordinate cybersecurity in order to services essential to people’s normal life.

101

3 The relationship between Catalonia and Spain, the European Union and the international community

3.1 Cooperation between Catalonia and Spain

Catalonia’s geostrategic position within the tory or GDP – Austria, Belgium, Denmark, Fin- Iberian Peninsula – extensively studied by land, Ireland, Norway, Portugal, Sweden and geographers such as Pierre Deffontaines and Switzerland, and even the Netherlands – two historians such as Vicens Vives – and its long are part of Benelux, four are members of the history as part of Spain have forged a very Nordic Council or the Council of the Baltic Sea strong network of relations in all areas. Beyond States, one is a member of the British-Irish the political bond, the following ties could be Council and eight are members of the EU. So highlighted as examples: while it is true that the state is still the key agent • Demographic movements. Only during for political, social and cultural interaction, it is the 20th century, more than three million nevertheless clear that sovereignty is increas- people born in the rest of Spain moved to ingly used to facilitate cooperation and not to Catalonia. ensure the protection of internal markets or • Trade interdependencies. In 2012 Cata- isolation within a country’s own borders. And, lonia exported to the rest of Spain goods indeed, in view of the gradually lesser impor- worth 49 billion euros – 34% of its produc- tance of traditional boundaries and the boost tion – and imported from the rest of Spain in interaction capacity, in the context of deep- goods worth 26 billion (Interreg, 2013). ening common European policies involving • Deep cultural ties. 50.7% of Catalans four- transfer of powers – in currency, debt policies teen years and older identify Spanish as and soon in financial, labour and fiscal poli- their personal “language of identification” cies – we must consider very seriously if, go- (Language Policy Report 2012). ing forward, formulas such as the federation or confederation of states, which is politically Furthermore, the globalisation process has costly, might give way to these new models of extended these links to the rest of the world, cooperation between states, much more func- particularly to the European Union, to which tional and efficient, aligned with the plurality it belongs since 1985, i.e., for nearly thirty of sizes and geographies, in a new paradigm years. In this case, all sorts of exchanges and that has been described as antiWestphalian. all types of cooperation have also been on the rise (only at the business level, in 2012 Catalo- Perhaps the reasons mentioned above explain nia exported 40.2% of its production abroad, that one of the most significant recent cases of while the rest of Spain exported 34%) (Inter- agreed secession, the Czech Republic from reg, 2013). Slovakia in 1993, posed no special problem whatsoever. As a precedent for this progressive globalisation and the gradual disappearance of bor- In parallel, then, with these close-knit relation- ders, particularly in Europe after the Second ship networks, and as a result of belonging World War multiple forms of interstate coop- and openness to other political, economic, eration began to emerge, even before the cultural and knowledge spheres, the sign- creation of the so-called common market. ing of treaties and agreements has led to an Right now, if we look at countries compara- extraordinary blurring of the separating char- ble to Catalonia in terms of population, terri- acter of these old boundaries. Borders have

105 gone from separating– with closed and guard- the free movement of people, and especially ed checkpoints – to allowing a collaborative to be exemplary in our regard to diversity and and interrelated cooperation. Treaties such minorities. as Schengen, the first signed in 1985 and the second in 1995 with the aim of ensuring Based on all this, we propose scenarios of the free movement of goods, services, capi- substantive improvement and stronger forms tal, workers and travellers, have even led to a of cooperation and less marked by suspicions physical dismantling of the old police border than the current relationship. In this regard, we checkpoints, in a short time. But especially present cooperation models inspired by ex- European policies in favour of cross-border isting ones, which rather than closed models relations have multiplied co-operation pro- must be seen especially as an illustration of jects and have significantly reduced the old the new opportunities that the independence barriers between states. of Catalonia could offer.

Seen from this perspective, then, the inde- It’s worth remembering, finally, as has already pendence of Catalonia from Spain should not been mentioned, that to understand the ambi- lead to insurmountable difficulties to reach a tion of the types of proposals made, it must level of relation and exchanges similar to the be understood that the national transition pro- present. This is especially the case if the ne- cess, beyond the initial separation, should gotiation does not question Catalonia’s conti- end up triggering a radical transformation in nuity within the EU. But even in the hypotheti- how each of the political nations – Spain and cal case that Catalonia were left temporarily Catalonia – are conceived. Therefore, it should out of the EU, as long as the new Catalan state lead to an abandonment of old cultures rooted subscribed treaties such as Schengen and in an uneven relationship of imposition and EFTA (European Free Trade Association), to submission. European and international organisations and new networks and spaces beyond the EU, 3.1.1 Cooperation models. once accommodated to the new rules of the Iberian Council or Catalan- game, the exchanges between Catalonia and Spain would gradually flow back to what they Spanish Council have been until now. Iberian Council. The first proposal is more Some technical questions will have to be ambitious, but for this same reason more de- solved, however, such as the possible dual fensible due to the intended inter-territorial citizenship for Catalans who do not wish to cooperation objectives. The idea would be sacrifice their Spanish nationality. Other is- to propose the creation of an Iberian Council, sues would be how to legally express the citi- fashioned after the Nordic Council, formed by zenship rights of current residents in Catalo- the four states of the peninsula: Spain, Portu- nia unwilling to avail themselves of the new gal, Andorra and Catalonia. The reasons for Catalan nationality, or Catalans who do not this alliance, apart from previous bonds of var- live here now but who would like to have Cata- ious natures, the common interests in all fields lan nationality. It will be crucial to find the best and the possibility of finding a formula for co- formulas for respecting national, cultural and operation which would encourage these inter- linguistic minorities who would make up the ests and reinforce each country’s influence, hypothetical reality of an independent Catalo- especially within the EU. The Iberian Coun- nia. But it is obvious that in these matters we cil, according to 2012 data, would include a would find legal solutions in order not to vio- population of over 57 million inhabitants and a late individuals’ desires, trying to accommo- GDP of 1.196 trillion, with a per capita GDP of date the feelings of belonging not to hamper above 21,000 euros.

106 The Iberian Council, following the model of the would be, in short, to propose the creation of a Nordic Council, may have the following struc- Council between the Spanish and the Catalan ture: states, in order to find the maximum coopera- • A Parliamentary Council, representing the tion synergies between the two countries. respective parliaments of each state in approximate proportion to its population. The Institutional operation, also following the mod- agreements would be suggestions which, els mentioned, could be based on: to be effective, would have to be approved • a Cabinet made up of the permanent min- subsequently by each country’s parlia- isters of each country. The cabinet mem- ment and state governments. bers would meet periodically and occupy • A Cabinet focused on intergovernmental the presidency on a rotating basis. The im- cooperation constituted by the prime min- plementation of decisions taken should be isters or presidents of each state, although approved subsequently by each execu- the minister for Iberian Cooperation would tive. participate in ordinary sessions. The Cabi- • A consultative Interparliamentary Assem- net would have a rotating presidency. bly, with members of both parliaments. • A permanent General Secretariat. • Permanent Working Committees for each of the main areas of activity that have been Matters within its area of competence, which established in the treaty, equally repre- could be organised in commissions constitut- sented by parliamentarians from the re- ed ad hoc, could include the following: spective parliaments. • Environmental, energy and water policies. • A permanent General Secretariat. • Law enforcement and defence policies. • Cultural, sports and communications co- The Catalan-Spanish Council would be estab- operation. lished through a treaty that would specify the • Industrial, trade and financial policies. functioning and powers and, logically, would • Agricultural and fishery policies. comply with applicable legislation derived • Infrastructure policies. from common membership in the EU, if ap- • Migration policies. plicable. For example, the competencies and • Educational, health and research policies. respective committees could deal with the following areas: If we followed the example of the Council of • Monetary and financial cooperation. the Baltic Sea States, we could consider the • Industrial and trade cooperation. possibility of establishing a second level of • Agriculture and fishery cooperation. association, defining an observer status with • Customs and tax cooperation. countries like Morocco and other territories • Cooperation in health, education and re- – beyond the European Union – with whom search. establishing specific cooperation channels • Cultural, sports and media cooperation. would be considered advantageous. • Environmental cooperation, particularly in energy and water. Catalan-Spanish Council. The second pro- • Infrastructure cooperation. posal is inspired by the old model – although • Cooperation in defence and law enforce- renewed in 2008 – offered by Benelux, which ment issues. unites three states, essentially in an economic • Cooperation on migration issues. cooperation agreement. It also takes into account, in part, the recent experience of the In a more daring, but also more comprehen- British-Irish Council, which allows forms of co- sive, model, we could try to follow the flexible operation between states and regions through model of the British-Irish Council and spe- a flexible, asymmetrical formula. The idea cifically accommodate certain regions in the

107 Council’s Interparliamentary Consultative As- EURAM. It has been repeatedly requested by sembly with representatives from each terri- FERRMED, a business initiative established in tory, always respecting the peer-to-peer, inter- Brussels in 2004, particularly with respect to state character of the relationship. the connection of ports, airports and rail.

There are also public structures within this 3.1.2 Regional cooperation: space, such as the Pyrenees Working Com- the Mediterranean Arc munity and, more particularly, the Pyrenees- Mediterranean Euroregion. However, it seems Although in a completely different frame from that the states to which these regions belong bilateral or multilateral relations between are not keen to give them the support they states, it is not possible to ignore precisely would need. Very specifically, it would include one of the most important regional coopera- projects such as Cerdanya Cross-Border Hos- tion spaces: the so-called Mediterranean Arc. pital, involving the Generalitat of Catalonia As noted, economic boundaries no longer (Government of Catalonia) and the French align strictly within states. There are currently Government, and the Pertús Police and Cus- networks between points that do not neces- toms Coordination Centre, with the participa- sarily have a physical continuity, and there tion of French, Spanish and Catalan police. are urban corridors that become engines of economic development and technological in- This type of macro-regional approach is the novation. priority right now in the European Union. In view of the success of this type of macro-re- This arc corridor is already a de facto reality, gional development policies, a space such from the point of view of economic coopera- as the Mediterranean Arc, which would run tion. And if it has not developed all its poten- from Eastern Andalusia, through Murcia and tial, it’s precisely because of Spain’s objec- Alicante all the way to Lyon, must end up be- tions to duly promoting the development and coming a key framework for cooperation strat- addressing the needs and opportunities of egies between Catalonia and its neighbouring transport infrastructure, especially land trans- states. This type of co-operation, as stated port. Moreover, this Mediterranean corridor above, not only does not require the signature has been promoted by civil society, mainly of international treaties but allows countries to by the Ignasi Villalonga Institute, through the take part without even being part of the EU. creation of the Mediterranean Arc Euroregion,

108 3.2 Trade relations between Catalonia and Spain

The Catalan economy has experienced a very cott of affected products is likely, but would intense process of diversification in its ex- be short-lived. In fact, it has been common ports. This process has been non-stop since in the past. And a progressive dilution of the Spain became a member of the European border effect is natural in a global economy, Economic Community, and in recent years it which has long since taken place in practice. has increased in intensity due to the sharp de- We must remember, first, that the effects of a cline in domestic demand caused by the eco- hypothetical independence of Catalonia on nomic crisis. This process will continue in the trade relations with Spain are more intense in coming decades, due to the gradual disap- final or consumer products than on intermedi- pearance of traditional factors (autarkic mar- ate or capital products (and the latter account kets, established business relationships and for two-thirds of Catalan exports to the rest of centralized communications and transport, Spain); and secondly, that Catalan exports among others) which explain the ongoing vi- have been taking place using intermediate tality of domestic trade. products imported from the rest of Spain and abroad. In this context, public debate related to the effects of independence on trade relations Considering all these factors, the hypothetical between Catalonia and Spain has led to the loss in Catalan GDP in the short term associ- publication of reports and studies of widely ated with the drop in trade with Spain would differing quality. One of them, the report by very likely be around 1%, very unlikely to ex- the Spanish Foreign Ministry, is perhaps ceed 2%. In any case, it would be largely off- the best representative of those that paint a set by the disappearance of the fiscal deficit doom and gloom scenario, based on sys- (which during the 1986-2010 period, on aver- tematic and large-scale boycotts of Catalan age, accounted for 8.1% of GDP). products, sudden and dramatic disappearance of the no-border effect between Cata- And even so, in the long term, the capacity of lonia and Spain – built up over a long time Catalan exporters to innovate and compete – and large-scale EU reprisals against trade would be much more important, coupled with with Catalonia. The conclusions of this type public policies implemented by the new state of doom scenario reports are unrealistic. to facilitate productive activity, some applied They don’t hold up when compared with in- with short-term effects and others with longer ternational precedents and reveal technical term effects (investment and infrastructure errors, such as confusing export turnover management policies based on fostering pro- with gross domestic product. ductivity, education system reforms, etc.).

Trade relations between Catalonia and Spain Especially in the transition period, Catalan could experience, at a much smaller scale, a authorities could adopt some measures to setback due to a possible independence of prevent some of the potential effects of the Catalonia, which would in turn suddenly ac- change in situation. These could include, for celerate Catalonia’s process of foreign trade example, cooperating with consumer product diversification. A selective and symbolic boy- sectors of clearly determinable origin and end

109 with certain symbolic value, which would (as they have been historically) most affected by selective boycotts, to improve their expansion to other markets by means of trade promotion and other instruments.

110 3.3 Cooperation between Catalan-language territories

The areas where Catalan language use and To address this gap in support from the cen- the creation and expression of Catalan cul- tral government’s public institutions, a host of ture takes root and develops – as is common private organisations have existed for years in other languages and cultures – does not to try to meet the needs of this sector. These exactly match up to political and administra- include the classic Galeusca association, in tive territorial divisions. It is for this reason defense of the Galician, Basque and Catalan that, as is likewise the case with other lan- languages, and professional associations guage and cultural regions around the world, that are not limited to administrative territo- in the territories where the Catalan language ries such as the Association of Catalan Writ- and culture exist – and among people who ers, and supranational bodies such as the use them, practice or study them, wherever Xarxa Vives d’Universitats (Vives University they may be – traditional organisations have Network). The Institute of Catalan Studies emerged in order to ensure the exchange deserves special mention, for its history and and cooperation between regions and indi- academic significance, and for the peculiar- viduals, with a view to ensuring their surviv- ity of its legal identity and its role as a linguis- al, development, knowledge, promotion and tic authority. mutual benefit. Catalan public institutions have also attempt- In the European context, the remarkable co- ed to address this cooperation, despite formal operation treaty between Belgium and the obstacles. One of these obstacles is the fact Netherlands for the Dutch Language Union that the Spanish Constitution bans the federa- (Nederlandse Taalunie) has long been re- tion of autonomous communities and imposes garded by experts as a good model to follow. limitations on the relationship between regions The Nordic Language Convention also stands (Art. 145.1), the forms of cooperation which out. It is a specific body of the Nordic Council should be established in the respective stat- that, although comprising different languages utes (as contained in Articles 12 and 178 of , establishes policies relevant to cultural coop- the 2006 Statute of Autonomy of Catalonia, eration. And in a yet more general context, the Article 59 of the 2006 Statute of Autonomy of International Organisation of La Francophonie the Valencian Community and Articles 5, 35, (Organisation Internationale de la Francopho- 118 and 119 of the 2007 Statute of Autonomy nie) is also well-known. of the Balearic Islands), cases which must receive, in addition, authorisation from the With the exception of some formal declara- Spanish Parliament. Moreover, beyond the tions, Spain has proved reluctant, in all ar- legal obstacles, the political execution of lin- eas, to underscore the value and recognise guistic and cultural realities have represented the wealth of the cultural and linguistic diver- a significant added difficulty. sity within Spain. In practice, Spanish state policies have focused almost exclusively on The Generalitat of Catalonia, specifically or as promoting the Spanish language and culture a body, has promoted the creation of public through the creation of the Instituto Cervantes, agencies with the aim of formal cooperation which has received strong support. between autonomous communities. The Ra-

111 mon Llull Institute in one such agency, which their diversity, actively involved in organi- aims to promote the Catalan language and sations promoting these languages and culture outside our borders in all the territories cultures. that share it and that, indeed, earned the sup- • Simultaneously, a proactive attitude should port of the government of the Balearic Islands be adopted with respect to the protection since the beginning in 2002 until support was and promotion of the autonomous Catalan withdrawn in 2012. Some Valencian munici- language and culture, maintaining exist- palities, on the other hand, have gradually ing collaborative bodies – or proposing shown interest in participating. The inter-state new ones – and making them available Ramón Llull Foundation has been established throughout the language and cultural re- in Andorra, and it works in close co-operation gion. with the Ramon Llull Institute on behalf of the • Although this issue would hinge on the study, promotion and defense of the Catalan general framework of relations between language and culture. Catalonia and Spain, and taking into account that the underlying principle of co- Regardless of the above, in the framework of operation should always be one of reci- an independent Catalonia, sacrificing these procity, in terms of Spanish language and territorial cooperation areas between institu- culture, it would be desirable to establish tions, organisations and individuals in the field links, for example, with the Cervantes In- of language and culture, beyond administra- stitute to serve the interests of the Spanish- tive borders, would make no sense. But more speaking community. than that, the new political status should be- • The same would apply with other cultural come a great opportunity to make a reality and linguistic communities in Catalonia. what so far has proved to have obvious imple- Thus, due to proximity and tradition, the mentation difficulties. French-speaking community from France or African countries – a very large 15% of 3.3.1 Criteria and proposals the Catalan population speaks French – or due to the interests stemming from intense First, we should establish clear criteria on trade relations, it might be desirable for which we should build cooperation in the field Catalonia to join the International Organi- of language and culture, given that apart from sation of La Francophonie. a territorial definition, these are realities that • Any organisation in favour of cooperation transcend physical materiality of space and between Catalan language and/or culture spread across administrative borders. These territories should be very scrupulous in re- criteria could be the following: specting the wishes and specifications of • It would be worthwhile to clearly distin- each participant. Obviously, political sen- guish between political and cultural log- timent cannot be forced, and any formula ics, each of which would have perfectly would have to be agreed beforehand. outlined, differentiated areas. On the one • It would be essential for the various forms hand, there is the political community, of cooperation to put the emphasis mainly with clear administrative boundaries, and on common interests, and particularly in on the other, the various linguistic and the defense and promotion of a common cultural communities (by their very nature, cultural and linguistic market that would with poorly defined boundaries), which benefit everyone, regardless of where the extend past the administrative space. In goods being exchanged are produced. this sense, the Catalan state would have To take an example from another field, to address, in the first place, the linguistic particularly favourable conditions could and cultural rights of all its citizens in all be established for exchanges in the edu-

112 cational – especially at the university lev- – one for each territory – which would pro- el– research, health and communication pose the cooperation policies in terms areas, where currently there is already a of language and culture, which, to be ef- close-knit relationship and where it would fective, would have to be subsequently be appropriate for the new political status adopted by governments in each admin- not to entail such a difficulty for continu- istrative area. ity. In this regard, it would be appropriate • An Inter-Parliamentary Commission that to avoid stressing identity or political is- would study the proposals of the Council sues to avoid causing the traditional re- of Arts and Culture and, if appropriate, luctance. would take them to the Government Com- • Obviously, all possible projects should op- mittee. erate within a European framework, from • The Philology Section of the Institute of the regulatory point of view as well as from Catalan Studies would continue in its role the point of view of the models offered. as Linguistic Authority, in a technical ca- Consequently, at least two proposals can be pacity. It would ensure, as it has until now, presented for the creation of new agencies that experts from all Catalan-speaking ter- and the reform of existing ones. ritories are represented. • A Council of Arts and Culture, with the par- 3.3.2 Proposal to create a ticipation of experts, creative profession- Catalan Language Agreement als and producers, as well as public and non-governmental organisations for the It would be advisable to create a public agen- defense and promotion of the language cy for cultural and linguistic cooperation be- and culture. tween states with territories where the Catalan • A General Secretariat. language is used in any of its names and variants. Funding could be flexible according to the number of speakers in each region. The main Following the proven model of the Dutch Lan- objectives of the Catalan Language Agree- guage Union, this Agreement – although it ment would be: could otherwise be named Alliance, League, • Cooperation in the study, knowledge, dis- Consortium, Union or even Coalition, to use semination and proper use of the Catalan the term adopted by the UNESCO for cultural language in its variants. diversity promotion – should be the result of • The promotion of Catalan literature and all a treaty signed between the five states (An- forms of cultural creation expressed in this dorra, Spain, France, Italy and Catalonia). language. In Spain – as in the case of Belgium with its • The promotion of a true and efficient Cata- Union – representation may be transferred to lan language and culture market in all the what are now the autonomous communities of Valencia, the Balearic Islands, and Aragon. In territories involved. France, representation could fall to the Gen- This Catalan Language Agreement is a lofty eral Council of the Pyrénées-Orientales, and aspiration, which is why it might make it ad- in Italy, the city of Alghero. visable to take a phased approach to its im- The Catalan Language Agreement may con- plementation, starting with the creation of the sist of: Council of Arts and Culture. As it matures, • A Government Committee, comprising over time, it may eventually culminate in the high-level members, responsible for the signing of the final treaty between the states cultural affairs of respective governments involved.

113 3.3.3 Consolidation of the all the territories where the Catalan language Ramon Llull Institute and/or culture is present. That is, in addition to Catalonia, Andorra, the autonomous com- It would also be advisable to consolidate the munities of Aragon, Balearic Islands and Va- Ramon Llull Institute as a great instrument lencia, the Pyrénées-Orientales and Alghero. for projecting the Catalan language and cul- Needless to say, this consolidation would be ture throughout the world, which is one of its easier with a Catalan-Spanish Council or Ibe- founding principles. rian Council as proposed above, and if a treaty on the Catalan Language Agreement were So, whenever possible, it would be interesting signed, as suggested. to agree the participation of governments of

114 3.4 Paths to Catalonia’s integration in the European Union

Whether a future Catalan state would be in- bership process as a third state without taking side or outside the EU is open to a variety of ad hoc measures aimed at ensuring expedit- opinions which can be grouped into the four ed processing or establishing specific interim scenarios presented below. In all cases, it is arrangements. necessary to emphasise two important ideas. First, preserving the acquired rights of citizens Exclusion as a Member State scenario: The is crucial, their economic and social rights EU refuses to immediately open the member- and especially the rights specified in the EU’s ship process or granting candidate status, Charter of Fundamental Rights. And secondly, i.e., it refuses to open the formal membership it is important to take into account the com- procedure and the new state remains indefi- plexity of organising the process of leaving nitely outside the EU. the EU for all public and private actors, wheth- Two assumptions must be taken into account er individuals or legal entities. These are the when analysing the degree of legal and prac- four scenarios considered: tical feasibility of these four scenarios. EU member scenario: As soon as the new • First, neither international law nor EU law Catalan state is established and the EU is noti- expressly provide for a situation such as fied of its constitution, the new state continues the Catalan case would pose. as part of the Union without interruption. Since • Secondly, the EU has traditionally adopted it is a territory that is now part of the EU and an extremely flexible and pragmatic atti- its population has European citizenship and is tude when solving unexpected problems under European law, it would not be forced to that have emerged in relation to the ter- leave the EU and apply for re-integration from ritorial territorial organisation changes of the outside. Member States concerning the scope application of EU law and, more generally, in Ad hoc membership scenario: When Cata- relation to the treaty ratification process. lonia requests admission, the EU would not accept its automatic continuity in the EU as a However, these two assumptions do not al- new state, but, given the specific circumstanc- low us to conclude that the admission of a es of the case, it would decide to undertake a new Catalan state would operate in a legal process of ad hoc membership, with specific vacuum. EU law, and indirectly international characteristics that would enable quick inte- law, regulate a number of material and proce- gration and a transitional arrangement aimed dural requirements and conditions that this fu- at ensuring the continuity of as many legal, ture state must comply with in order to join the economic and political ties to the EU as pos- Union, whatever scenario ends up prevailing. sible, and the continuity of all rights and obli- However, as we shall see, the unprecedented gations of citizens and companies operating nature of the Catalan case will increase the in Catalonia. margin which the EU usually takes when se- lecting, interpreting and applying European Ordinary membership scenario: The EU law. In practice, whether acknowledged or agrees to immediately open an ordinary mem- not, the driving force behind choosing be-

115 tween these scenarios is not so much legal organisations could facilitate the EU integra- guidelines as much as political and especially tion process. economic interests. 3.4.2 Membership scenarios. 3.4.1 Legal conditions and Procedures to be followed requirements EU member scenario. Should Catalonia and EU membership is open to European coun- the EU choose for Catalonia to remain in the tries which respect and promote the values of EU, which would no doubt be in Catalonia’s human dignity, freedom, democracy, equality, best interest, the following procedures should the rule of law and human rights, including the be followed: rights of minorities. Countries must also meet the criteria set out by the European Council’s First, the Parliament of Catalonia should adopt Copenhagen Summit: existence of a func- a resolution specifying its explicit desire to tioning market economy and the capacity of continue in the EU. The decision should stip- coping with competitive pressure and market ulate a commitment to European values and forces within the EU; capacity of accepting ideals. It should also demonstrate the new the aims of the political, economic and mon- state’s compliance with the EU’s political, le- etary union and institutional stability to ensure gal and economic requirements for Member democracy, the rule of law, respect for human States. And, finally, it should refer to the objec- rights and protection of minorities. tive of carrying out, in the specified time period, any adjustments required to remain part It seems clear that a future Catalan state would of the EU. suitably meet these admission conditions and requirements. Proof of this is its prolonged pri- The President of the Generalitat, in his capac- or EU membership. ity as ultimate representative of new state, would be responsible for submitting this deci- The major new requirements that the new Cat- sion expressed by the Parliament to the Euro- alan state would have to deal with would result pean institutions. from the need to create some regulatory and coordination agencies, which have already The most appropriate EU institution to respond been discussed, and, in general, some new to Catalonia’s request to continue being part organisational structures stipulated by Euro- of the EU would be the European Council. pean law, as well as the need for transposing to the new Catalan legal system any related If it ruled in favour of this option, the Euro- EU law as required. These tasks would cer- pean Council, by consensus, would respond tainly require some effort, but the future Cat- favourably to Catalonia’s continuity as part alan state would have enough experience to of the EU. Once this agreement is adopted deal with them without much difficulty. and, therefore, once Catalonia’s permanence within the EU is accepted, a negotiating pro- For a future Catalan state to join the EU does cess would begin to adapt the primary legis- not necessarily require it to be previously and lation and secondary legislation to the pres- formally recognised as a state or accepted ence of a new member within the European internationally by another state or by specific Union, and to specify the internal adapta- international organisations, for example the tions Catalonia should carry out to remain as UN or the Council of Europe. The EU could part of the EU. be the first organisation to recognise this fact. However, there is no doubt that the prior for- Although the changes to be carried out may mal recognition by other states or international be few and limited in scope, they would have

116 to be recorded via an amendment of the EU and relevance compared to what happens Treaties. with applicant states that have not previously been members of the EU. The amendments of the Treaties should be made preferably by way of ordinary revision To ensure the practical effectiveness of the procedure of Article 48 TEU (sections 2 to 5). recognition of permanence in the EU, from the moment the European Council recognises the The ordinary revision procedure of the Trea- permanence and during the process in which ties may be initiated by the government of any Treaties are amended and secondary legisla- Member State, the European Parliament or the tion and national law is modified, the EU, in Commission, by submitting a draft revision of keeping with its traditional flexibility and prag- the Treaties to the Council which submits it to matism, could adopt measures to ensure this the European Council and notifies national immediate applicability. parliaments (art. 48.2 TEU). The European Council, by a simple majority, after consult- These interim measures aimed at ensuring ing the European Parliament and the Com- the practical effectiveness of recognising the mission, decides whether to start the amend- permanence of a future independent Catalan ment process. If it decides to do so, it orders state within the EU would not be necessary if the Council to convene an Intergovernmental the procedure which was going to be applied Conference (Conference of State Government in the Scottish case to ensure its permanence Representatives). This Conference must ap- in the EU were applied in the Catalan case. prove, by mutual agreement, the amendments Indeed, this formula aims to achieve concur- to be made to the Treaties. And finally, the rency between the constitution of the new amendments must be ratified by all Member state and the integration of this state in the States. EU and, applied to the Catalan case, would consist of the following: After an eventual fa- The procedures, which takes into account the vourable outcome for independence following desires of EU institutions, are characterised a referendum or plebiscite election, and after by their flexibility to the extent that, on the one prior negotiations between the Generalitat hand, no overly qualified majorities are estab- and Spain, the latter would start negotiations lished for adopting decisions to be adopted with the EU in order to design (for whenever by European institutions, and, on the other, the new state is formally established and it ex- mechanisms are put in place to address pos- presses its desire to continue in the EU) the sible situations involving opposition or block- appropriate amendments to the original trea- ing by a member state (Article 48.5 TEU). ties – which in principle should take place through the procedure stipulated in Article 48 The amendments to be introduced would also TEU – and the modifications of secondary leg- be limited in scope and would be introduced islation deemed necessary for the integration by modifying the relevant directives and regu- of the new state. By this time, the list of organi- lations in force. sational and legal measures to be implemented by Catalonia in a given period should also As for the adjustments that Catalonia would be ready. have to carry out to continue being a part of the EU, some have to do with the agencies it Ad hoc membership. If, however, Catalonia would have to create or adapt and others in- and the EU chose the ad hoc membership volve the required legislation to develop and scenario, this would mean that the integra- implement European law and indispensa- tion of Catalonia in the EU would take place ble interim arrangements. It seems clear that through the procedure used for non-member these adjustments would have a limited scope third countries (art. 49 TEU), with the excep-

117 tion, however, of the simplifying ad hoc interim it unanimously after consulting the European measures adopted, aimed at ensuring fast Commission and the European Parliament. If integration. This would imply that most of the so agreed by the Council, a process of ne- currently European law in effect would contin- gotiating of uncertain duration would begin, ue applying to Catalonia throughout the pro- even though, objectively, it would seem that it cess. should be shorter than the process followed to date with other candidate countries, precisely In short, in this scenario the future Catalan because the provisions of primary legislation state would be required to leave the EU, but and secondary legislation require more limit- its reintegration process would be stream- ed changes and because fewer requirements lined. It should be noted that, depending on are expected for Catalonia. the speed of this ad hoc process and based on the content and extent of the interim ar- This process would be applied through the rangements, in practice, the consequences legal instrument of the Treaty or Act of Ac- of this EU integration procedure for the future cession of Catalonia to the EU, which should state could be objectively almost identical to incorporate the principles governing mem- the first scenario. bership, institutional adaptations, secondary legislation technical adaptations, interim As amply demonstrated by the practice fol- measures in the various areas of application lowed so far by the EU, Treaties contain many and Law application provisions. different conventional and regulatory instruments that would accommodate a rapid in- The procedure normally applied in this phase tegration procedure and, especially, ad hoc is usually as follows: the Commission directs transient regimes: protocols, cooperation the negotiations and duly informs the Parlia- agreements, provisional application of Euro- ment and the Council. The terms agreed in re- pean Treaties to the territory of Catalonia until lation to the various negotiating chapters are the end of the ad hoc membership procedure; specified in the Accession Treaty. Before it is provisional application of the new Accession signed, the European Parliament must issue Treaty from the moment it was signed, while its approval, adopted by an absolute majority the accession Treaty was being ratified by of members and the unanimous resolution of Member States; adoption of the decision of the Council. heads of state within the European Council, etc. Meanwhile, in this transitional period, Cat- Finally, these Treaties amendments are sub- alonia could adopt unilateral measures and le- ject to an agreement between the Member gal decisions to ensure the maximum stability States and the candidate state. The Accession of trade relations with the EU and enjoy free- Treaty has to be ratified by all Member States dom of movement. Regardless of the above, and also by the candidate state, following the even in this case, for the duration of negotia- respective internal constitutional guidelines. tions for accession, interim measures to fa- Unlike the procedure of Article 48 TEU, the EU cilitate continuity of application, even if only does not stipulate any response mechanism in part, of European law could be adopted. In in the event of a possible deadlock. fact, the application of interim arrangements is common in most accession processes. Ordinary membership. The third scenario, ordinary membership, would mean ignoring The procedure outlined in Article 49 TEU, if we the fact that Catalonia has been part of the EU extract the modifications that the EU could ap- for almost thirty years. It would therefore place ply to a case such as Catalonia’s, would be- Catalonia in the same position as official can- gin with a request for admission addressed didate states such as Iceland, Turkey, Mac- to the Council, which would have to accept edonia, Montenegro and Serbia. In the case

118 of Catalonia, this option would have a clear that took place in the framework of the Euro- disciplinary or deterrent component, which pean Coal and Steel Community (ECSC) in would be even clearer in the fourth hypothe- 1957, when the region of Saarland went from sis, the exclusion scenario. France to West Germany, without requiring any renegotiation of the ECSC Treaty. Exclusion scenario. Many doubts and questions could emerge in this exclusion scenario, Greenland is another relevant example of which would imply the EU’s refusal to accept pragmatism, in this case in relation to the re- any kind of relationship with Catalonia. form of the territorial scope for application of the Treaties. In 1979 its citizens had obtained So, for example, assuming Spain did not rec- a political autonomy regime within the Danish ognise the independence of Catalonia, this state and in 1982 they voted to leave the Euro- could prevent changing the scope of appli- pean Communities. After a period of negotia- cation of EU Treaties in Catalonia. The result tions, Greenland won the status of European would be continuity in the implementation of Communities associate member through the European law in Catalonia and to Catalans, “countries and overseas territories” formula. even in the event that Catalonia declared its The agreement allowed Greenland to contin- independence and begun to act as an inde- ue receiving EU funds and having free access pendent state. to the European market for fishing products. The Greenland case was the result of a politi- From a procedural perspective, it is very ar- cal process not provided for in any article of guable that Article 50 TEU (introduced by the the Treaties. Lisbon Treaty) would be directly applicable in the event of deadlock in the procedure to The European Community also demonstrat- admit Catalonia into the EU. Strictly speaking, ed the same pragmatism and flexibility with this article applies only in the case of volun- regard to the process of integrating unified tary withdrawal of a member state from the Germany in the European Communities. In EU. However, regardless of this debate, it is April 1990 the European Council decided significant that this provision requires negotia- that the integration would be effective when tions prior to the exit of a Member State, set- the unification of West and East Germany ting the framework for future relations with the was legally established, and thus ruled out EU and giving a margin of two years before it any application of the adhesion or revision ceases to apply European law. Article 50 TEU clauses in the Treaties. It was a fast political underscores the great complexity – both for negotiation in which the Member States rati- the affected area and for the EU as a whole – fied the conditions whereby the process of involved in having a territory (which has been absorbing the new territory, its citizens and part of the EU for a given period) leave the EU. its businesses by a EU member state would take place, applying the principle of people’s 3.4.3 EU flexibility and right to self-determination provided for in the pragmatism basic Law of the Federal Republic of Germa- ny to justify the reunification of Eastern and When considering the possible EU scenarios, Western Lands. we cannot ignore that the EU has traditionally adopted a flexible and pragmatic approach The case of Cyprus is also paradigmatic. to complex issues for which the Treaties did In 2004 it became a member of the EU as a not present a clear answer. This flexibility and de facto divided island. Unable to reach an pragmatism have been an EU hallmark since agreement between the Turkish Cypriot and its beginnings until now. Suffice it to recall, for Greek Cypriot sides, the decision was made example, that the first change of boundaries to make the whole island a member of the EU,

119 but that EU law would apply only to the Greek the EU values and objectives and those taking Cypriot side. into account the economic and stability interests throughout the EU. Another example that highlights the EU’s pragmatism when faced with complex situa- Along these lines it is likely that the arguments tions is the decision taken at the EU Council against the ongoing membership or fast ad- on the opening of negotiations to conclude a mission with interim agreement scenarios Stabilisation and Association Agreement with will resort to arguments about the “absorp- Kosovo. In the debate between representation capacity” of the EU, namely the difficul- tives of Member States in the EU Council, in ties of managing a Union with the addition of order to avoid having all EU Member States a new state, or the fear which some Europe- ratify the agreement and, ultimately, to prevent an countries who are facing territorial issues states who had not yet formally recognised might have that the Catalan case may trigger the state of Kosovo from voting on the ratifi- a “copycat effect”. cation, the Council agreed by consensus that the future agreement would not be signed as Claims have also been made, with debatable a mixed agreement (EU and Member States) reasoning, that the acceptance into the EU but would only be signed by the EU. That said, of a future independent Catalan state, if the the current project affects some powers which separation process occurs without agreement are questionably exclusive only to the EU. from Spain, would be a breach of the principle of territorial integrity stipulated in art. 4.2 TEU. The EU’s flexibility and pragmatism could be The claim is that a future Catalan state would even greater in the case of Catalonia, where, not have been a contracting party to the Trea- given its prior membership in the EU and the ties establishing the EU and, therefore, should lack of express regulation affecting it, applica- apply for admission as if it were a third-party ble laws leave an even higher degree of free- state, outside the EU. dom than other cases. Moreover, the arguments that can be lever- 3.4.4 Probabilities of application aged in favour of the ongoing membership or of the various scenarios fast acceptance scenario stage with an interim arrangement are arguments related to the Both EU institutions and Member States have values that the EU has always defended, and a wide margin of freedom when it comes to also pragmatic. accepting or not the inclusion of a new state, and if accepted, when deciding which sce- First we will consider the values that the EU nario and what procedure should apply. has always defended. One of the foundational objectives of the EU has always been The reasons which states and European insti- to achieve the maximum integration of states tutions can appeal to when adopting one po- geographically located in Europe. It would sition or another are not explicit or stipulated be going against its own objectives and na- by law. In principle, they can be of any kind ture to exclude, even temporarily, a state such (legal, political or economic, etc.) and the as Catalonia, who meets all the admission re- likelihood that the EU and Member States opt quirements and which is actually already part for one or another of the four scenarios noted of the EU. above will depend largely on the persuasive force which the various arguments have for It is also worth remembering that to deny them – especially economic arguments – for EU membership to a future Catalan state, or admission or ongoing membership. The argu- prolonging this integration process, would ments likely to prevail are those aligned with amount to excluding 7.5 million people from

120 EU membership, people who have enjoyed (second scenario), since it does not make this status for decades. In fact, the principles sense to force a territory and citizens out of and values guiding the EU will prevent its insti- the EU even if they were to be quickly re-ac- tutions from ignoring the rights of people and cepted. companies, maintaining financial and commercial relations and, especially, the rights It does not seem reasonable or credible that stipulated in the EU’s Charter of Fundamental the EU and its Member States would be will- Rights. ing to inflict financial damage and betray their foundational objectives by leaving a state From a strictly economic standpoint, it seems such as Catalonia out of the EU, a state which clear that the permanence of a future Catalan would meet all membership requirements state in the EU or its speedy acceptance with and which is perfectly integrated to Europe. interim arrangements would offer more advan- The dilemma then is actually not if Catalonia tages to the EU and current Member States would end up being part of the EU but when than a definitive expulsion or an acceptance and how it will do so. The most basic logic and by ordinary means after a long wait. The EU, pragmatism would seem to point to its ongo- Member States and especially investors and ing membership scenario. However, in the companies from these states with industrial event of a sanction veto, a scenario of fast in- and financial interests in Catalonia would be tegration with interim arrangements cannot be negatively affected by the failure to apply to ruled out, which would ensure uninterrupted Catalonia the Statutes and laws of the EU, the application European law in Catalonia for the re-application of customs tariffs and the with- duration of the accession process. drawal of freedom of movement from people, At the same time, it seems obvious that if goods, services and capitals. On the other Catalonia carries out the segregation process hand, it is worth remembering that, according with the agreement of the Spanish state, it to current calculations, a future Catalan state would have no difficulty in ensuring its ongo- would not be a “receiving” state but rather a ing membership in the EU or by ad hoc fast “net tax contributor” to the EU budget. This acceptance with interim arrangements. How- factor is usually taken into account in accept- ever, it also seems clear that if this agreement ance negotiations. did not exist but Catalonia could prove irrefu- The above considerations allow us to con- tably that the agreement has been attempted clude that when it comes to deciding the ac- repeatedly and in good faith with Spain, and it ceptance of an independent Catalonia in the has exhausted the application of the relevant EU and the procedures to be followed, it is legal channels following a scrupulously demo- likely that, for the EU and its Member States, cratic process, the EU and its Member States the arguments in favour of ongoing member- would not be indifferent to this fact. ship or at least fast acceptance with interim In fact, in the absence of an agreement be- arrangements would carry more weight. If this tween Catalonia and Spain, European institu- proved to be so, it also seems clear that, from tions have to analyse the behaviour of both the standpoint of basic pragmatism, the argu- parties in the light of the principles of democ- ments in favour of ongoing membership (first racy, sincere cooperation, good faith and pro- scenario) should be stronger than arguments portionality. for fast acceptance with interim arrangements

121 3.5 Alternatives to non-permanence of Catalonia in the EU or to a prolonged accession process

3.5.1 Bilateral agreement sible, with decisions being taken by qualified between Catalonia and the EU majority.

This type of agreement could be established As such, the EU and Switzerland, for instance, in two ways. Firstly, Catalonia and the EU have a large number of bilateral agreements could decide unilaterally but reciprocally not which enable the latter to enjoy the benefits of to impose duties on the circulation of goods the single market without being an EU Mem- manufactured and commercialized in their ber, while, at the same time, retaining a high respective territories. Secondly, the two enti- degree of economic and political independ- ties could sign a bilateral agreement to guar- ence, particularly in terms of the economy, antee the free trade of products and services, taxation, trade and agriculture. as well as to define a common framework for cooperation. 3.5.2 Membership of the EFTA, the EEA and the Schengen Area On the basis of its external competences, the EU enters into a broad range of international Another option for the independent Catalan agreements with third states that are not EU State would be to apply for admission to the Members and with international organisations. European Free Trade Association (EFTA) and The agreements that are signed are usually inclusion in the numerous agreements with of the following types: trade agreements, as- third countries that have been signed within sociation agreements and cooperation agree- this framework. The current members of the ments. The Lisbon Treaty facilitates the pro- EFTA are Iceland, Liechtenstein, Norway and cess of closing bilateral EU agreements, that Switzerland. The treaty covers the areas of is to say agreements closed exclusively by the free circulation of people and services, move- EU and not by its Member States. Moreover, ment of capital and protection of industrial and this Treaty has modified the voting system in intellectual property. The EFTA is not, there- the Council to facilitate the decision-making fore, a customs union, but rather a free trade process by qualified majority, replacing the area and members have a certain measure qualified majority system established in the of freedom to close free trade agreements of Treaty of Nice (a majority of States, weighted their own. To become a member of the EFTA, votes and population) with a double majority a unanimous agreement must be reached by system (States and population) that does not the Member States. require votes to be weighted but establishes a qualified majority of 55% of Member States Catalonia’s participation in the EFTA would (currently 15 States) and 65% of the European mean having to make a smaller economic population. contribution than would be required to the EU, which would give the State great freedom In the case of Catalonia, it would be neces- in terms of negotiating economic and trade sary to assess the possibility of extending the agreements. In view of the characteristics of adoption of an agreement on trade, coopera- Catalonia, there would not appear to be many tion and association with the EU as far as pos- obstacles to its membership of this organisa-

122 tion. In fact, there is a preference within the lated to ensuring the security of external bor- organisation for the inclusion of small or me- ders in order to control illegal immigration, or- dium-sized States with a similar level of de- ganized crime networks, drug routes and all velopment and the will to open up to foreign types of corrupt practices. trade. Catalonia already possesses these characteristics. Even if it is not a member of the EU, Catalonia could still be a member of the Schengen Area, With the exception of Switzerland, the other particularly if it were a member of the EFTA. three members of the EFTA (Norway, Iceland However, Catalonia would first have to meet and Liechtenstein) are party to an association a series of requirements. Firstly, with respect agreement with the EU to form the European to external borders, it would have to demon- Economic Area (EEA). The EEA forms part of strate to the other members, for example, that the Community acquis on the internal mar- it can implement efficient control of its borders ket and some European policies such as free and the proper application of the Schengen competition, a series of social regulations, regulations. Moreover, it would have to dem- consumer protection and a set of environmen- onstrate effective management of the differ- tal measures. It also incorporates cooperation ent databases that have been set up for the instruments in areas of research, develop- control and integrated management of exter- ment, tourism and civil protection. nal borders and implement the corresponding instruments for cooperation with the different In order to gain membership of the EEA, a European agencies related to the operation of State must first be a member of the EFTA. The the Schengen system. countries involved in the EEA apply EU rules on the internal market and enjoy the corre- 3.5.3 Free trade agreements and sponding economic freedoms without taking part in decision-making processes at an EU customs unions level. In the event of obstructions to Catalonia’s rapid Meanwhile, all EFTA members also form part entry into the EU under an interim regime, an of the Schengen Area, an area in which in- alternative internationalization strategy would ternal border controls have been eliminated have to be established. In this case, Catalonia and European Community rules are applied would recover the power to close bilateral and with respect to the control of external borders. multilateral trade agreements with countries The Schengen Area currently consists of 26 interested in maintaining commercial, eco- countries (soon to be 28 with the accession nomic and financial relations. The internation- of Romania and Bulgaria). Four EU states do al framework which would have to be applied not belong to this agreement (Ireland, United in order to enable this type of agreement to be Kingdom, Cyprus and Croatia). Forming part closed is the structure regulated by the WTO of the Schengen Area may be in Catalonia’s (World Trade Organisation), which allows its best interests, but this is even more so in the members to reach greater commercial liberal- interests of the other EU members and for the ization by establishing free trade agreements EU itself, in view of the enormous concern re- or customs unions.

123 3.6 Integration with the international community

The integration of the new Catalan State within • The capacity to enter into relations with the the international community requires three el- other States ements. Firstly, it is necessary to achieve international community’s recognition of the new Reliably demonstrating compliance with these State, particularly in the case of a significant four conditions is the first phase of the recog- number of other existing States. Secondly, nition process. This is accompanied by nego- the principles, values and regulations of in- tiations, acknowledgements, an acceptance ternational law would have to be incorporated clause with respect to international law and within the State’s own legal system. It would the first applications for membership of inter- also be necessary to ratify the most important national organisations. international treaties. Lastly, incorporation into In the specific case of Catalonia, before em- international intergovernmental organisations barking on a formal process of requesting rec- (IIO) would be required. ognition, the new State must do the following: • Be able to demonstrate that it exists or, to 3.6.1 Recognition of the new put it another way, that it meets the interna- State tional criteria and standards. This involves clearly demonstrating that the State has a The recognition of one State by another is population, the majority of which accepts a discretionary and political unilateral act in the new situation. It must also be demon- which State X recognises State Y. Interna- strated that there is a defined territory in tional law does not oblige States to recognise which a legitimate authority exercises its other States. However, despite being a free competences effectively over the popu- act, it generates legal effects. Recognition lation and territory. However, in the event can be given in various ways, either explic- that the process is not fully agreed, some itly, with a legal and formal act of recognition, temporary problems with overlapping au- or tacitly, by establishing diplomatic relations thority and territorial control may occur. or voting for the accession of a certain State • Search for potential support for the rec- into an intergovernmental organisation. In ognition process before the declaration all cases, recognition implies that the State of independence, with possible support- giving recognition accepts the other as an equal, a State, which meets the requirements ers and advocates. In this case, a mini- of statehood. mal degree of bilateral and multilateral recognition is assured a priori, which will The practical implementation of the basic no- also serve as a practical demonstration of tion of statehood is contained in criteria or prin- compliance with the fourth Montevideo cri- ciples of the Montevideo Convention (1933), terion (the capacity to enter into relations that establish the following requirements: with the other Member States of the inter- • A permanent population national community). • A defined territory • Establish a clear, progressive strategy with • Government, with clear control over this well planned, realistic and workable pri- population and territory orities, to achieve bilateral and multilateral

124 recognition gradually, with a combination before deciding whether it is appropriate to of conventional diplomatic actions with a request succession or whether, in contrast, it range of proposals that involve sharing ben- would be better to open a ratification process. efits now and in the future. It is particularly important to develop a credible systemiza- 3.6.3 Membership of tion of the added values and comparative international intergovernmental advantages that the new State can contrib- organisations ute to the international community. • Be fully aware that the recognition process Despite being a relatively recent phenom- is always gradual, for political and techni- enon on the international relations scene, in- cal reasons, and its completion requires ternational intergovernmental organisations time. It is also important that this is com- (IIO) have developed greatly over the last two municated to the population. centuries. Nowadays, there are thousands of • Avoid premature requests, particularly in these organisations in all spheres of interna- the case of multilateral recognition, and tional life. They have become so important take the potential effects of group-oriented that 250 conventional IIOs play a key role as voting on a case-by-case basis. regulatory bodies with respect to the conduct and relations of States. They do far more that 3.6.2 Incorporation of simply execute agreements established by international law and treaties their Member States. They make decisions that affect each and every corner of the plan- within the State’s domestic law et and, as a result, the life of its inhabitants. The first measure that a potential independent This is because they deal with issues linked to internal and domestic sovereignty, and com- Catalan State would have to adopt would be petences that until very recently were consid- establishing a formal clause of acceptance ered by many States to be the reserve of na- of international law in the Interim Constitu- tional governments. tion Law. The clause would have to declare that the general principles and regulations of In the case of Catalonia, it seems clear that international law, particularly with respect to membership of IIOs is an indispensable step fundamental rights, are considered to be an on the way to recognition and for effective in- integral part of Catalan Law. tegration in the international community.

This acceptance of international law could not In conceptual terms, there are three ways to simply be a declaration, however, but rather it become a member of IIOs: through a formal would have to include the will to respect it. membership process, with a simple unilateral act or through succession, based on an ex- It is particularly important to note that the rati- press provision in the organisation’s regula- fication of international treaties is a fundamen- tory treaty. tal instrument for ensuring the integration of the new State into the international community. In practice, however, the basic and most com- There will be cases in which the ratification of monly used approach is the formal process, treaties will take place almost automatically, as the number of cases of unilateral decla- because the new Catalan State will be con- ration has decreased dramatically and there sidered the successor to the Spanish State. has only been one significant case of succes- However, in view of the fact that no hard and sion by express provision (Permanent Court of fast regulations are established, the new State Arbitration). Therefore, the standard method will have to conduct a thorough case-by-case is the formal membership procedure which, in analysis of the treaties that it intends to ratify, turn, is a highly diverse field.

125 When deciding which IIOs the new State the status of fully-fledged State from the very should be incorporated into, two key elements first phase of international recognition, it is should be taken into account: the practical also a good idea to consider applying for one and symbolic handover of their functions and of the three cases of States with intermediate the degree of difficulty of the procedures re- status, as a special guest. quired to formalize membership. It should be highlighted that there is no sig- From this perspective, despite the diverse nificant technical difficulty, or in the sphere of nature of the processes, a distinction can be human rights standards. However, despite the made between two large categories of formal lack of the possibility of veto, the process be membership processes to join an IIO: shorter or longer depending on the political • Organisations with restrictive and complex will of the members. For instance, the case of admissions processes. Montenegro was completed in under a year. • Organisations with relatively simple and This is why it may be useful to hold the status open admissions processes. of special guest during the negotiation pro- In the former case, the restrictions are the re- cess. sult of the decision-making systems in which In addition, it is worth noting that a recent re- unanimity is required, enabling the power of port by the British Government considers that, veto, or, to a lesser extent, qualified majority in terms of the European Convention on Hu- systems that enable blocking minorities to be man Rights, succession could be almost au- established. In such cases, a thorough analysis is recommended by requesting admission. tomatic. In specific, with respect to this point, The latter case involves organisations that Crawford and Boyle state that, based on the have decision-making processes with open precedents of Montenegro and Czechoslova- procedures, although, the procedure can be kia and rulings by the European Court of Hu- administratively long in some cases. man Rights that have already been enacted, the application of the Convention can be con- It should also be noted that, as well as the for- sidered as uninterrupted. Naturally, the same mal procedure, some IIOs have particular cus- could be said for the case of Catalonia. toms and process, such as the power to adapt the standard procedures to specific cases. For b) United Nations and its System instance, this is the case of the institutions derived from the Bretton Woods Agreement (In- Membership of the UN and, as a result, regu- ternational Monetary Fund, World Bank Group). lar presence in its main bodies has come to symbolize the full culmination of integration In view of the difficulty in establishing general in the international community, even though rules, it has been decided to classify the IIOs the UN does not formally recognise States. into broad, relatively discretionary categories Being a member of the UN does not only in- and conduct a partial analysis by groups and volve forming part of its main bodies, but also cases. the possibility of accessing many of its specialized bodies by means of a unilateral act, a) Council of Europe and, finally, many of its particular mechanisms As an institution that even pre-dates the Euro- (funds, programmes, specialized or regional pean Communities, the Council of Europe is committees, research and training institutes, considered to be a primary institution of the and subsidiary agencies, among others). greatest importance, due to its symbolism, its However, in some cases, it is not necessary to competence and functions, and its member- be a member of the UN to become a member ship procedure. While it is advisable to aim for of one of its specialized agencies.

126 To obtain membership of the UN, it is neces- membership application must be made ex- sary to follow a precise and well-established plicit by means of solemn and legally-binding procedure: declarations. • The candidate country sends formal notification to the General Secretary of the UN In the case of Catalonia, the main challenge accompanied by a formal instrument of is not a question of meeting the five prereq- acceptance of the obligations established uisites mentioned, but rather to achieve a fa- in the UN Charter. vourable vote, with at least nine votes in favour • The General Secretary informs the Secu- and no veto from the Security Council, in the rity Council. first instance, followed by at least two thirds in • If the Council does not raise any objec- favour from the General Assembly. tions, the chairman processes the issue to the Admissions Committee for new mem- As a final recommendation, it should be em- bers, which analyses the application and phasized that it is not advisable to begin the presents its conclusions to the Council. application for membership of the UN prema- • The Council has to decide whether or not turely or rapidly, despite its symbolic status. It it recommends the admission of the candi- should at least be ensure that there is a signifi- date or whether the application should be cant number of recognitions, sufficient knowl- adjourned. As this is a substantive issue, edge of the reasons and role of the new State admission requires at least nine votes in in the international community and a scenario favour and no vote against from any of the of bilateral relations with Spain that are rea- five permanent members of the Council. sonably well established and based on coop- • If the Council recommends admission, the eration. case is then passed to the General Assem- With respect to the specialized agencies of bly for consideration. If at least two thirds of the members vote in favour, the General the United Nations System, it is important to Secretary notifies the applicant country of understand that they are a product of the long the decision and its entry takes immediate history of the organisation, created in 1945, effect. and, in particular, the plurality of functions that • In the event that the Council does not rec- the organisation can accomplish in terms of ommend entry or adjourns the decision, improving international governance and glob- the General Assembly can analyse the al cooperation. case thoroughly and decide whether to International Monetary Fund (IMF). This insti- resubmit the application to the Security tution is dedicated to promoting monetary co- Council, with full minutes of the discussion, operation at a global scale, ensuring financial to re-examine the case and formulate a stability, facilitating international trade and fos- recommendation or report. tering employment and economic growth and There are five conditions that must be met as the elimination of poverty around the world. a necessary requirement: Its importance an symbolism is extremely • Being a State. great. In terms of belong to this institution, two • Being peace-loving. • Accepting the obligations of the Charter. aspects should be highlighted: The first is that • Being in a position to fulfil the aforemen- it is a relatively open organisation. This ex- tioned conditions. plains the fact that Kosovo is currently a mem- • Having the explicit and reliable will to do so. ber, in contract to the majority of organisations of the UN System. Secondly being a member Despite perhaps being evident, the second, of the IMF is a prerequisite for membership of third and fourth conditions included on the the World Bank.

127 The formal membership application process the International Development Association can be summarized as follows: (IDA). Meanwhile, the latter consists of five or- • The candidate send a formal membership ganisations. application, which is received by the Ex- ecutive Board (EB). The entry system to the Group is conditional • The EB examines the application thor- on two prerequisites. Firstly, applicants must oughly. be a member of the IMF (Constitutional agree- • The EB presents a report to the Board of ment of the WB). Secondly, entry into the IBRD Governors with the recommendations it is required, which affects the membership of proposes (a draft version of the Member- the other four institutions of the Group. ship Resolution). The report contains: • the membership fee that must be paid The procedure can be summarized as follows: • the method of payment • The IMF Member State that is a candi- • possible terms and conditions related to date for joining the WBG submits an ap- entry as a member. plication, which is prepared jointly with the • The Board of Governors approves the Bank, with all of the information consid- aforementioned resolution, as applicable, ered relevant. marking the start of the period within which • The Board of Executive Directors of the the membership must be formalized, with IBRD (formed by twenty five people se- domestic and international legal proce- lected based on representation criteria) dures that enable the agreements to be announces the application to the Board of signed and the corresponding obligations Governors, which includes representative to be met. of all of the Member States. When the submission is positive, the Board of Executive The main obligation of the new Member is Directors attaches all of the documenta- payment of the membership fee decided by tion it considers necessary to its report, in- the Board which, in the case of a country such cluding a proposal of the number of capi- as Catalonia, may be high. Two precedents tal shares to which the new member would worth noting are the case of Montenegro have to subscribe (a quantity that will have (agreed secession) and Kosovo (unilateral se- been decided based on prior consulta- cession) with respect to Serbia. In both cases, tions), as well as any conditions that it con- the IMF consider Serbia to be the continuing siders appropriate. State, for all legal intents and purposes, so its • The Board of Governors makes the deci- retained its Member status, fees and assets sion by majority vote (the votes are deter- and liabilities. Montenegro and Kosovo there- mined by each country’s capital subscrip- fore entered as new members. It seems likely tions). Therefore, the possibility of veto or that the case of Catalonia would progress in a small blocking minorities is low, unless it similar way. comes precisely from the countries with greater weight in the voting due to their The characteristics of the IMF make it prob- number of shares, such as the USA. ably the primary access route to the UN Sys- • Once a country is a Member of the IBRD, tem for a new State that is striving to achieve its integration in the international community. admission to the other four institutions simply requires an administrative procedure, World Bank Group - A distinction must be which normally involves signing the Ar- made between the World Bank (WB) and the ticles of Agreement, submitting a formal World Bank Group (WBG). The former only instrument of admission to the Corporate has two members: the International Bank for Secretary of the WBG and receiving ap- Reconstruction and Development (IBRD) and proval.

128 FAO. This is the UN’s Food and Agriculture of the organisation’s Constitutional Treaties. Organisation. Admission to this organisation Any UN Member State can apply for member- is regulated by Article II.2 of its Constitutional ship of the organisation by submitting their ap- Treaty. Applicants must submit their applica- plication to the UN Secretary General, accom- tion accompanied by a formal instrument of panied by a declaration of the will to accept acceptance of the obligations established in the Constitutional Treaties and the obligations the Constitutional Treaty and the regulations in established therein. Admission can also be replace in the organisation at the time of sub- quested directly and may be granted if a sim- mission. The decision is made by the organi- ple majority is obtained at the annual confer- sation’s General Conference and requires a ence of the World Health Assembly. two-thirds majority of the votes cast, on the condition that the majority of the Member It is advisable to request admission in the first States are present. phase, within the international recognition process. Admission can be requested in the first phase, within the international recognition process. ITU. The International Telecommunication Un- ion is a mixed-membership agency, formed ILO. This is the International Labour Organi- by States and academic and private organisation. The admission procedure is regulated sations. The admission procedure is regulat- by Articles 1.3 and 1.4 of the organisation’s ed by Articles 2 and 53 of the organisation’s Constitutional Treaties or Constitution. Any UN Constitutional Treaties. Any UN Member State Member State can apply for membership of can apply for membership of the organisation the organisation by submitting their applica- by submitting their a single standardized for- tion to the Director General of the ILO, accom- mal instrument of acceptance of the Consti- panied by a declaration of the will to accept tution and ITU Convention before the Secre- the Constitutional Treaties and the obligations tary General. The Secretary General informs established therein. However, Paragraph 1.4 the other States and sends a certified copy. establishes another possible mechanism: However, there is a second method, which “The General Conference of the International involved submitting the admission request Labour Organisation may also admit Mem- directly. The decision is taken at the Plenipo- bers to the Organisation by a vote concurred tentiary Conference, which is held every four in by two-thirds of the delegates attending the years, an requires a two-thirds majority. When session, including two-thirds of the Govern- the application is submitted between two ses- ment delegates present and voting”. sions, the Secretary General consults with all of the Member States, which must respond In both cases, the application is presented at within a period of four months. If no response the annual meeting of the General Conference is received in this time, they are considered to and requires a two-thirds majority of the votes have abstained. Once the decision has been cast, on the condition that at least two-thirds of taken, the formal admission instrument must the government delegates are present. The ad- be deposited, taking immediate effect. mission takes effect once the Director General receives the formal instruments of acceptance. Despite the qualified majority, it is advisable to embark on the admission process as a part of It is advisable to request admission in the first the international recognition process. phase, within the international recognition process. UNESCO. This is the UN’s organisation for education, science and culture. The admis- WHO. This is the World Health Organisation. sion process is regulated by Article II of the Admission is regulated by Articles 1, 6 and 79 constitutional treaty of the organisation and

129 by Regulations 50 and 51 of the Executive that became the specialized agency of the Council. Any UN Member State can apply UN in 1974. for membership by notifying the Foreign and Commonwealth Office, as the depositary of In accordance with Articles 5 and 14 of the the treaty. This notification must include a for- organisation’s Convention, participation and mal declaration of acceptance of the constitu- admission is open, through a simple formal tional treaties. ratification process or by means of a admission instrument deposited before the organi- A direct application is also possible: “Subject sation’s Director General, on the condition that to the conditions of the Agreement between the applicant meets one of the following three this Organisation and the United Nations Or- criteria: ganisation, approved pursuant to Article X of • Being a Member State of the Paris Union this Constitution, States not members of the or Berne Union. United Nations Organisation may be admit- • Being a Member of the UN, one of its spe- ted to membership of the Organisation, upon cialized agencies, the International Atomic recommendation of the Executive Board, by a Energy Agency or part of the Statute of the two-thirds majority vote of the General Confer- International Court of Justice. ence” (Article II.2) • Being a State that has been invited to join the WIPO by its General Assembly. In both cases, the approval procedure is two- fold: firstly, a simple majority of the Executive In view of the fact that, in order to become a Council is required; secondly, a two-thirds ma- Member of the Paris and Berne Unions, ap- jority of the General Conference is needed. plicants only have to make formal notification of admission, it seems clear that becoming a Despite the qualified majority, it is advisable to em- member of the WIPO simply depends on the will bark on the admission process in the first phase, to do so and formally requesting to do so. There- within the international recognition process. fore, it forms part of the list of organisations to WTO. This is the UN institution dedicated to which Catalonia should apply for admission in promoting responsible, sustainable tourism the first phase of international recognition. that is accessible to all. In practice, it is the c) NATO and other international security leading international organisation in the field agencies (OSCE, EU security struc- of tourism. tures, transatlantic relations and rela- In accordance with Article 3.5 of the Statutes, tions with the United States, etc.) the admission mechanism require the candi- Turning to the issue of international security, dacy to be presented and approved by the it should be noted that Catalonia, as a part of General Assembly by a two-thirds majority of Spain, has been part of the gradual process of the effective Members present and voting (on incorporation of the central Administration into the condition that this majority includes the the international community that has taken majority of the effective members of the or- place since the Spanish transition to democ- ganisation). racy, with significant implications in terms of In view of the importance of tourism in Catalo- security. From the time of the Franco dicta- nia, it is advisable to request admission to this torship, Spain inherited relatively incomplete organisation in the first phase of the interna- diplomatic relations (such as in the case of tional recognition process. Mexico and Israel), an asymmetrical relationship in terms of security and defence with the WIPO. The World Intellectual Property Organi- United States of America (USA) and the lack sation (WIPO) is a long-established agency of incorporation in NATO.

130 During the Spanish transition, Spain complet- OSCE. With respect to the Organisation for ed its admission into the Council of Europe Security and Cooperation in Europe (OSCE), (1977), and later into NATO (1982) and the EU the successor of the Conference for Security (1986). From the 1990s onward, Spain’s full and Cooperation in Europe created in 1973 incorporation into the Atlantic and European and in force since the formalization of the Hel- security structures was validated, as well as sinki Accords (1975), this organisation is now its admission into all of the internationally sig- made up of fifty seven members, as a result of nificant agencies and networks. Spain also the transformation of the European States in subscribed to and ratified all of the important the post-Cold War period. The Member States treaties in terms of domestic and international include all of the European States (including security. all of the EU Members), the Russian Federa- tion and the Asian republics that were formerly Therefore, in the event of Catalonia becoming members of the USSR, as well as Canada and an independent State, it will have to resolve the USA. many issues related to the presence of security agencies, treaties on the issue and, above The organisation undertakes a very active line all, coordination in terms of international secu- of work in preventive diplomacy, conflict man- rity, all within the framework of full integration agement, human rights protection and the in the international community. To date, all of protection of minors. In addition, through vari- these issues have been the responsibility of ous documents and declarations, the organi- the central Administration. sation symbolized the transformation of the pan-European region into an area of peace The decision that must be taken primarily af- and cooperation, after overcoming the hostili- fect four areas of foreign security: transatlantic ties of the Cold War. relations and relations with the USA; membership of the OSCE; membership of NATO; and However, the OSCE still implements the mech- membership of the EU security structures and anism of unanimous decision-making, which agencies. enables any of the Member States to veto new admissions. Transatlantic relations. Within the restructuring process in recent years, transatlantic The immediate actions that must be taken are dialogue has been conducted bilaterally and demonstrating Catalonia’s interest in becom- multilaterally, in this case, through NATO and ing a member and subscribing to and apply- other similar organisations, some of which are ing the principles and accords of all of the private. In addition, Spain’s bilateral relation documents and agreements in the OSCE’s with the USA has been a key element of Span- history. ish security policy since 1953. NATO. NATO is the result of the progressive With respect to the bilateral treaty in terms organisational formalization of the Washington of defence, it should be noted that Catalonia Treaty (1949). Technically, the organisation is currently has no operative facilities included based on a collective defence treaty that com- in the treaty, in contrast to the situation years mits all of its members, although without the ago with the Loran-C station in L’Estartit. As existence of an automatic clause (Article 5 such, there are no significant problems to of the Treaty). It is a regional security organi- overcome. However, given the importance of sation, in accordance with the provisions of relations with the United States, even in terms Chapter VIII of the United Nations Charter. of the recognition process, Catalonia’s desire to uphold privileged relations should be made Without doubt, the issue of NATO membership clear from the very beginning. is important and, as such, before considering

131 certain actions, it is worth analysing how ad- its power. This should also be taken into con- mission is achieved: sideration when designing Catalonia’s international security, in view of its firm vocation to In terms of the admission mechanisms, Arti- become an EU Member. cle 10 of the Treaty clearly states that, with the exception of Canada and the USA (founding The immediate actions that need to be taken members), new members must be European include using the policy as a starting point, as and, in addition, must have been unanimously generally stated above, for the design of Cata- accepted by all of the States. No stipulations lonia’s international security, and in terms of are included for succession mechanisms. Ad- the previsions for treaties, strategies and the mission would therefore need to be negotiated. various EU instruments and agencies, as well as notifying the EU of this decision. However, the possibility of association is stipulated, through the Partnership for Peace, to d) Other international institutions which almost all European countries belong, International Criminal Court. Created in to varying degrees. 1998 based on the Rome Statute and in force The immediate actions that must be taken are since 2002, this is a permanent international requesting and negotiating participation in the criminal justice court ruling on cases of war Partnership for Peace and taking a decision crimes, genocide and crimes against human- of the potential admission in a subsequent ity (and, in the future, crimes of aggression phase, once the important options in terms of as well). Although there are only 122 Member defence and security are decided within the States, with significant absences, the Court framework of the constitutional process. has become a symbol of the fight against im- punity and injustice. EU security structures. Lastly, in terms of the The admission process is simple. It is open European Union’s security structures, it should to any State that submits the formal admis- be noted that EU membership implicitly in- sion instrument to the Secretary General of volves participation in certain highly important the United Nations, the depository organisa- instruments in the field of international securi- tion of the Rome Statute. Once the Statute has ty, most of which are intergovernmental, such been signed, the applicant holds the status of as the Common Security and Defence Policy an observer State of the Assembly of States (CSDP), part of the Common Foreign and Se- Parties and, once notification of ratification is curity Policy. The CSDP has acquired great received, it becomes a full-fledged Member. significance since the Lisbon Treaty came into force, as it reinforces the policy’s capacities It appears to be clear that Catalonia would and its real policy instruments. have to request admission to this institution without delay, in the first phase of the interna- In specific, it enables the establishment of tional recognition process. structured and permanent cooperation between Member States that are more disposed Permanent Court of Arbitration. This is an and better equipped in terms of arms and IIO with a long history. It was created in 1899 defensive capacities. The common defence as a result of the Hague Peace Conference. It clause contained in Article 42 of the Union specializes in the provision of arbitration ser- Treaty is particularly significant. It states that, vices and dispute resolution between States, in the event that a Member State is the object State institutions, IIOs and, in some cases, pri- of armed aggression within its territory, the vate organisations. Despite the obvious links rest of the member States must provide sup- in terms of principles and functions, the Court port and assistance with all of the means in does not form part of the UN System.

132 Regulated by two conventions (dated 1899 governed by the particular regulations of each and 1907), it is formed by 115 countries and agreement. In practice, this means reliably has undergone a significant resurgence in re- verifying that the candidate’s legal framework cent years, probably due to its links to interna- on trade is able to respect the principles and tional commercial law and the law of the sea. agreements of the WTO.

There is an obvious case for admission for In any case, a country that has been an EU a new State such as Catalonia, which has a Member State as part of another State and long history of promoting peace. However, is attempting to join the Organisation rapidly the requirement of being a Member of the UN should not come across any significant obsta- means that this admission process will have to cles. be wait until the second or third phase. The formal admission process can be sum- World Trade Organisation. The WHO was marized as follows: created in 1995 and is the successor of the • The candidate drafts a report describing General Agreement on Tariffs and Trade all aspects of its trade policies related to (GATT) which supervises the trade agree- the WTO agreements. This report or mem- ments that regulate and define the commer- orandum is examined by a WTO working cial relations between Member States. Its committee, open to all of its Members. objective in the medium to long term is to • From the moment that the main substan- reduce or completely eliminate international tive issues of principles and policies have barriers to trade. It does not form part of the been examined, bilateral conversations UN System and, as such, neither is it a mem- begin between the candidates and each ber of the international financial institutions, of the Member States. The process ends although it does enable forms of collabora- multilaterally in view of the fact that, de- tion and cooperation. In recent years, it has spite the bilateral negotiation, the principle experienced a significant crisis due to being of non-discrimination requires the candi- blocked at the Doha round. This has led to date’s commitments to be applied equally the emergence of many multilateral and, to with respect to all countries. a greater extent, bilateral trade agreements • Once the task of the working committee outside of the WTO framework. However, the is completed (analysis of the candidate’s Bali Conference (November 2013) enabled trade structure and bilateral negotiations), the adoption of certain agreements and the a report is issued, along with a draft ad- improvement of a number of the organisa- mission protocol and a scheduled list of tion’s operating regulations. commitments that the new Member would The Organisation is currently formed by 159 have to assume if accepted. fully-fledged members and 25 observers, all • These three documents are presented to of which are in the admission process, with the General Council or the Ministerial Con- the exception of the Vatican. The procedure ference, which must approve them by a requires a two-thirds majority of the Ministerial two-thirds majority, without the possibility Conference. In principle, any customs terri- of veto. This involves a significant majority, tory or State with full autonomy with respect to but any principal political difficulties that trade policies can join the WTO. In other words, may arise should have already come to they can sign up to the Founding Agreement light in the bilateral phase. In the event of and the various multilateral trade agreements. the application being approved, after sign- There is also a degree of technical complexity. ing the protocol and the possible ratifica- Acceptance of the agreements established in tion if required under the domestic law, the Annex 4 must be declared separately and is applicant acquires Member status.

133 There are two final considerations in view of highlighted by the public list of negotiations in the importance that belonging to the WTO progress. would have for Catalonia as an independent State. Organisation for Economic Cooperation and Development. Founded in 1961, the Firstly, there would need to be a thorough OECD originated from the European pact analysis of the pros and cons of holding ob- mechanisms advocated by the USA within server status, which, as mentioned above is the framework of the Marshall Plan of post-war a prior condition in almost all of the cases of aid for regional reconstruction. It is currently full admission. This must be compatible with formed by 34 countries. Its primary purpose the negotiations required, which would have is to promote economic progress and world to begin within a maximum time period of five trade, as well as democracy and the market years from the start of the applicant’s observer economy. It has many subsidiary bodies in status. the form of committees, working groups and expert groups, etc. Candidate countries can Secondly, it should be remembered that EU participate in some of these subsidiary bodies. Member States have dual status in the WTO as individual States and as part of the EU. This Although the organisation is formally a sim- fact often involves stating opinions and voting ple forum or platform, the fact that decisions as a block, as the EU has exclusive compe- are taken unanimously gives it greater sig- tence in terms of trade policy. nificance, particular with respect to the OECD Council, its highest decision-making body. This factor must be taken into account as, in practice, it informally ties admission to the The admission process is potentially slow and WTO with Catalonia’s integration channels into long as it is based on a series of examinations the EU. This means that Catalonia’s admission to evaluate the candidate’s suitability and real to the WTO would be immediate when Cata- capacity to meet the organisation’s standards. lonia becomes an EU Member, in view signifi- There are two channels for negotiating admis- cant scope of the competences attributed to sion: the EU in terms of trade policy. • The negotiations in progress in accordance with the 2007 decision (Slovenia, Es- Within the framework of Catalonia’s relations tonia, the Russian Federation, Israel and with the WTO, based on the commitments ne- Chile, which have deposited their admis- gotiated. It is also important to bear in mind the sion instrument). effects of an eventual free trade agreement or • The enhanced engagement mechanism customs agreement that, in an interim phase, designed or emerging economies and could be closed between Catalonia and the countries. EU. This agreement could be integrated within the WTO as a preferential EU trade agreement The standard procedure can be summarized or a customs union, constituting an exception as follows: to the clause of the most favoured nation, in • Drafting an admission route map. accordance with Article XXIV of GATT and Ar- • Revision of the results, without a preset ticle V of GATS. timescale, with the results being communi- cated to the Council. In summary, it is necessary to prepare and • The Council’s unanimous decision, with embark on an admission process from the first the corresponding power of veto, which phase and decide whether or not to apply for enables the candidate to submit the ad- observer member status. In any case, the pro- mission instrument to the Treaty depository cess is always long for technical reasons, as in France.

134 The complexity and, above all, the need for • Formal acceptance of the organisation’s unanimity make it advisable to wait until a later Constitutional Treaty by the new Member. stage of the integration process in the international community to embark on the admission Therefore, for its own interests and the inter- process. ests of the system, this appears to be an organisation to which Catalonia should attempt International Organisation for Migration. The to join at the start of the recognition process. IOM was founded in 1951 and currently has 155 Member States and 11 observers. Its Interpol. Established in 1923, the Internation- function is to advise governments and mi- al Criminal Police organisation currently has grants on all aspects of migration. It is not part 190 members and it is primarily dedicated to of the UN System. It has a flexible structure, protecting public safety and fighting terrorism, with offices and projects in over a hundred organized crime, trafficking of humans, arms countries. The admission process to the or- and drugs, child pornography, money laun- ganisation is simple. dering, white-collar crime and corruption. It has two main bodies, the General Assembly Its Constitutional Treaty establishes the follow- and the Executive Committee, as well as the ing conditions and procedures: General Secretariat. • Demonstration of the interest and clear commitment of the candidate with respect Admission is granted on the condition of a fa- to the principle of free movement of peo- vourable vote with a two thirds majority of the ple. General Assembly. • Demonstration of the will and ability to In view of the current circumstances in terms make a financial contribution to the organi- of the fight against certain forms of interna- sation, which may not be less that the ad- tional terrorism, it seems evident that it would ministrative expenses. This figure will be be in nobody’s interest for Catalonia to remain agreed between the candidate and the outside of this organisation. Therefore, admis- IOM Council. sion should be requested in the first phase of • Acceptance of the candidate by a two- integration in the international community. thirds majority of the Council.

135

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