Constitutions, Autonomies and the EU

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REPORT FROM THE ÅLAND ISLANDS PEACE INSTITUTE

Rapport från Ålands fredsinstitut

Sia Spiliopoulou Åkermark (ed.) Eduardo J. Ruiz Vieytez Iñigo Bullain Sören Silverström Susanne Eriksson

Roger Nordlund

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I N S S D T N IT U LA T T IS HE ÅLAND

No. 3-2008 Editor:

Associate Professor Sia Spiliopoulou Åkermark, Director, The Åland Islands Peace Institute

The Authors:

Professor Eduardo J. Ruiz Vieytez, Institute of Human Rights, Deusto

Professor Iñigo Bullain, University of the Basque Country

Sören Silverström, Head of the EU department, the Government of Åland

Susanne Eriksson, Assistant Parliamentary Director, the Åland Parliament

Roger Nordlund, Head of the Government of Åland

Constitutions, Autonomies and the EU Sia Spiliopoulou Åkermark (ed.), Eduardo J. Ruiz Vieytez, Iñigo Bullain, Sören Silverström, Susanne Eriksson, Roger Nordlund

Report from the Åland Islands Peace Institute Rapport från Ålands fredsinstitut No. 3-2008

ISSN 1797-1845 (Print) ISSN 1797-1853 (Online) ISBN 978-952-5265-30-9 (Printed) ISBN 978-952-5265-31-6 (Online)

Published by the Åland Islands Peace Institute PB 85, AX-22101 Mariehamn, Åland, Finland Phone +358 18 15570, fax +358 18 21026 [email protected] www.peace.ax

This report can be downloaded from www.peace.ax

Printed in Finland by the Åland Islands Peace Institute 2008. Preface

he European Union (EU) and EU law is in principle neutral towards the division of powers in the constitutional orders of Mem- Tber States. However, as many of the contributions in the publication show, the EU has direct and indirect impact on the division of powers between the states and autonomous regions as well as on the workings and role of the parliaments and governments of autonomous regions possessing legislative competence. While most studies until now have looked generally at the role of sub-state entities within the EU in the framework of what is usually referred to as multi-level governance, we have in the present report chosen to focus on two autonomous regions with legislative powers and longstanding and well-developed autonomy institutions. While the demography, the geography, the history and the political situation of the Åland Islands (Finland) and of the Basque Country (Spain) differ in many respects, there are many common issues with regard to the triangular relation autonomous region – state – EU. Spain acceded to the EEC already in 1986 while Finland first in 1995, but we see that even in Spain an agreement on the participation of the autonomous communities in the EU was reached first at the end of year 2004. The present report is the outcome of fruitful discussions at a seminar entitled ‘Con- stitutions, Autonomies and the EU’ held in Mariehamn (Åland, Fin- land) in October 2007. The two case studies are not compared sys- tematically, but, rather, the report represents an inventory and analysis of the issues considered to be paramount by the experts from the two sides. These questions include mainly the constitutional development of autonomies within the EU, the participation of autonomous regions in the workings of European institutions, the role of the parliaments of autonomous regions in the implementation of EU law (what has been named passive and active Europeanisation) and the case law of the Eu- ropean Court of Justice with respect to autonomous regions. The Åland Islands Peace Institute is grateful to the seminar participants and authors of this publication for their willingness to participate in discussions and for their timeliness in submitting the final manu- scripts. We are also grateful to the Åland Parliament for letting us use its auditorium for the seminar.

Sia Spiliopoulou Åkermark Associate Professor Director, The Åland Islands Peace Institute

Report from the Åland Islands Peace Institute 3-2008 3 Contents

Eduardo J. Ruiz Vieytez Sören Silverström The Evolution of Autonomy in Implementation of EU Legislation The Basque Country...... 5 in the Åland Islands...... 42 Introduction...... 5 Introduction...... 42 The Context fd the Current System Different Forms of Implementation of Autonomy...... 5 and Application of EU Law in the Evolution: From a Legal Perspective...... 7 Åland Islands...... 43 Evaluation of Autonomy and Experiences from Implementation of Possible Future Scenarios...... 12 EU Obligations in the Åland Islands...... 44 Bibliography...... 15 Conclusion...... 47 Notes...... 17 Bibliography...... 48 Notes...... 48 Iñigo Bullain Role and Prospects of the Spanish Self- Susanne Eriksson Governing Communities in European The Role of the Åland Parliament Matters and Institutions...... 19 in EU Matters...... 51 Introduction: Some Preliminary Considerations...... 19 Roger Nordlund Participation of the Self-Governing The Challenges of Developing the Ålandic Au- Communities in European Affairs...... 21 tonomy in the Shadow of the EU. Opportuni- The Self-Governing Communitites ties and Setbacks...... 55 in the European Institutions...... 23 Regional Prospects...... 26 The Concept of a European Region...... 35 Conclusions...... 36 Notes...... 39

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The Evolution of Autonomy in the Basque Country – Experiences and Trends

Eduardo J. Ruiz Vieytez

Introduction The Context of the Current System of Autonomy his paper intends to provide an overview Tof the evolution of the autonomy system in To evaluate the evolution during the last decades the Basque Country. With that aim, the paper of the autonomy system in the Basque Coun- will try to approach to the topic from both le- try is a difficult task. This complexity is owed gal and political perspectives, showing lights and to several factors. On the one hand, the idea of shadows on the dynamics occurred during the autonomy is a complex one in itself. With the last 28 years. The substance of the paper will be expression “autonomy” or “self-government” we divided into four parts. In part 1, we will try to use to make reference to very different models locate the Basque autonomy in a wider context, responding to very diverse political and legal re- taken for granted that the reader is not familiar- alities. Even more, when we refer to political au- ised with the current legal and political frame- tonomy of sub national entities, the meaning of work of the Basque Country. In part 2 we will the expression may imply divergent consequenc- analyse the main aspects of the evolution of the es in different kinds of models, as we have al- autonomy in the last 28 years from a legal per- ready shown in previous studies.1 spective, including the most relevant discussions In the particular case of the Basque Country, about the interpretation of the Act on Auton- to make an evaluation of the scope and effective- omy and the obstacles for its amendment. Part ness of the system of autonomy becomes even 3 will be devoted to a political analysis of the more complex, given the complicated circum- evolution of autonomy, showing the main con- stances of its reality. In fact, the Basque Country troversial aspects on the topic, through the posi- is nowadays a conflictive political reality, a sin- tion of the principal political parties and opinion gular case due to its uniqueness and complexity polls. Finally, in part 4, we will try to draft some within the framework of Western Europe. overall conclusions on the evolution of autono- In the Basque case, even the personal and ter- my in the Basque Country and try to understand ritorial concepts of the country are not peaceful. the possible future scenarios for the region. In sociological, linguistic or cultural terms, the Basque Country (as it is understood in gener- alist works such as the Encyclopaedia Britanni- ca or Wikipedia) comprises different populations and territories in the Spanish and French States. Thus, while the Basque character of the lands on

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the northern or French part of the country is not From a formal point of view, nowadays the disputed, within the southern part, the belong- Basque Autonomous Community (henceforth ing of Navarre to the Basque Country is large- BAC) is one out of 17 Autonomous Commu- ly opposed in Navarre itself and in the rest of nities of Spain, enjoying significant devolved Spain. The degree of affiliation of the Navarrese powers and institutions, such as a democratical- population with the Basque identity is extremely elected parliament in Vitoria-Gasteiz and a ly uneven and it does not correspond with their Basque government headed by the Lehendakari, electoral performance. Nevertheless, Navarre who is responsible to the aforementioned parlia- constitutes an autonomous community in itself, ment. Apart from that, the BAC, due to its par- although both the Spanish Constitution of and ticular history, is organised on a kind of a federal the Acts on Autonomy of the Basque Country basis. Therefore, the three Historical Territories and of Navarre foresee the possibility of inte- that make up today the BAC enjoy also devolved grating Navarre into the Basque Autonomous powers and have their own institutions, includ- Community. However, at the present moment, ing democratically elected parliaments (Jun- the implementation of that possibility seems to tas Generales/Batzar Nagusiak) and their cor- be remote, given the correlation of political forc- respondent governments (Diputaciones Forales/ es within the Navarre region. For clarity reasons, Foru Aldundiak). In fact, the BAC was the first we will focus our analysis on an exclusive way on Autonomous Community to be set up in 1979 the Basque Autonomous Community, leaving after the approval of the Spanish Constitution aside the territorial debate on the relationship of 1978. Since 1983, when the last Autonomous with Navarre or the French Basque Country. Communities were institutionalised, the whole In addition to these difficulties, the Basque territory of Spain (apart from the small cities in Country is affected by a conflict situation in- Africa of Ceuta and Melilla) is organised in au- cluding some violent expressions. The use of tonomous communities. Although not all au- violence as a political instrument enjoys an ex- tonomous communities enjoy the same level of tremely low support in the Basque society, but self-government, the tendency of the system is these violent expressions gravely affect not only to homogenise the territorial landscape. In this the Basque political agenda, but also the Span- respect, the Spanish model has more in common ish one. The Basque society shows an impor- with the Italian one (although there is no clear tant degree of ideological fragmentation, with- division between special and ordinary autono- in a political party system corresponding to the mies) or the moderate federal systems like Aus- polarised pluralism model. The political debate tria, than with the asymmetrical autonomy mod- is linked to issues concerning sovereignty and els of Finland, Denmark or United Kingdom. right to self-determination, and the use of the However, it must also be clarified that the idea of autonomy evolves according to this fi- BAC is probably the most peculiar Autonomous nal debate on sovereignty. In fact, it can be said Community within the whole Spanish King- in advance that some political sectors that today dom. This is due to some relevant specificities appear to be defenders of the current autonomy including: system are different (and in some cases opposed) Like other autonomous communities (Cata- to those defending autonomy in the year 1979. lonia, Galicia, Valencia and Baleares), the BA>C In any case, we are talking about a society where has recognised its traditional language (euskera) the achievement of social or political agreements not only as an official language (together with and consensus is particularly rare and difficult. the Castilian Spanish entrenchedin the Con-

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stitution) but also as the “autochthonous” lan- parliament is able to create legislation with the guage of the BAC. This linguistic recognition, highest legal rank. This important aspect of the which entails some specificity in terms of powers internal organization of the BAC is also present and regulations, is not present in the majority of in the peculiar composition of the Basque Par- Spanish Autonomous Communities. liament. According to Article 26 of the Act on The BAC, together with Navarre, enjoys an Autonomy the Basque Parliament must be com- independent system of financing of its institu- posed by the same number of representatives of tions and powers. Following the historical con- the different historical territories, regardless of ventions, both communities are largely responsi- their population. This means in practice, that the ble for their own tax policy and management (in three territories elect today 25 members of par- co-ordination with that of the State and the Eu- liament (MPs) out of a total of 75 MPs, in spite ropean Union). They also ensure a fix part of the of the 5 to 1 difference between Biscay and Al- annual revenue for the central government in or- ava in terms of population. This is in fact a rath- der to pay for the State powers exerted within er surprising element for an elected parliament their territories. However, the main bulk of the and may find its explanation in a vague idea of tax income (more than 90%) remains within the an internal federal structure, which, however, Autonomous Community. does not correspond to the real functioning of According to the first additional provision of the system today. the Spanish Constitution, the Basque territories (including Navarre) are recognised as en- Evolution: joying historical rights that are updated within From a Legal Perspective the autonomy system. This has meant in practice a higher level of powers for these two commu- The Act on Autonomy for the Basque Country3 nities than for the remaining 15. The main ex- is formally speaking an organic law, according to pression of this historical legacy is that of the tax article 81 of the Spanish Constitution. It was the policy, but some other powers such as the inter- first act on autonomy approved by the Spanish nal security or some aspects in educational mat- parliament since the entry into force of the 1978 ters have been considered also as expressions of Constitution. The legislative procedure for the the historical rights of the Basque Provinces. adoption of such an act (“Statute” according to The BAC is one of the 6 autonomous commu- the Spanish legal terminology) is a complex one, nities having a specific civil law (Derecho foral), in which two different wills must merge: the one which in the case of the BAC is applied only to of the State, expressed through the central par- some part of the territory and not to the whole liament, and the one of the people of the Au- population.2 tonomous Community, expressed in a first stage Finally, unlike the rest of the Autonomous through its elected MPs, and in a final stage by communities, the BAC shows a very specific the people itself via referendum.4 territorial organisation. As we referred before, According to this complex process of ap- historical territories or provinces are really au- proving, amendments to the Basque Statue tonomous entities within the BAC. They de- must be done in conformity to the regulations velop independent policies in different impor- estab¨lished in it (articles 46 and 47). In sub- tant matters, and have provincial parliaments lo stance, this process consists of three consecutive legislate in such topics, although according to steps: debate and approval in the Basque parlia- the Spanish constitutional law, only the Basque ment; debate and approval as organic law by the

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central parliament; approval of the citizens of system. This explains that the 1979 Statute, still the BAC by referendum. As it can be seen, again in force, includes a long list of “exclusive” powers the process of amendment is based on the junc- for the BAC and other legislative and executive tion of the same two political wills, the one of powers in other matters in which basic legisla- the state and the one of the Autonomous Com- tion is reserved to the State. munity, giving in this way to any of these two However, the implementation of these stip- parts the formal possibility of vetoing any pro- ulations during the first 15 years of autonomy posal of modification in the system in force. has shown many differences in the interpreta- In fact, for the last 28 years there has only been tion of the content of the Statutes of the auton- a serious attempt to amend the Basque Statute. omous communities (including the Basque) and This attempt was leaded by the Basque Govern- new scenarios that could not have been fore- ment by sending in 2003 a bill to the Basque seen in 1979. Thus, defenders of higher auton- Parliament to reform the whole Statute, which omy claim that the State has enlarged its com- in fact constituted a deep and radical reform of petences through extensive basic regulations in the existing autonomy system. This bill5 was dis- specific matters or via the so called horizontal cussed within the Basque Parliament for around titles, which give to the State the possibility of a year and finally approved by absolute major- invading fields which were supposed to be of the ity in December 2004.6 However, on the second exclusive of the BAC (and other autonomous step of the process, the Spanish Parliament re- communities)8. The paradigm of these horizon- ceived the proposal, and the First Chamber re- tal titles is the one reserved to the State in ar- fused to open the process of discussion in a pre- ticle 149.1.13 of the Constitution, which gives liminary debate.7 Therefore, the whole proposal to the central institution the power on “the ba- was rejected and lost any legal force. Unlike in sic aspects and coordination of the planning of the Basque case, most Autonomous Commu- the economic activity”. It is easy to understand nities of Spain have already amended their re- that such a generic concept can be used to le- spective statutes, including those acceding to gitimise a broad rank of State interventions via autonomy in the first years of the constitutional formal legislation or even ordinary regulations, system, and so far no other proposal of amend- affecting the substance of sectorial powers of ment has been rejected in the preliminary phase the autonomous communities. Besides this, it of the parliamentary debate. is an extended opinion that the work done by In legal terms, the Statute specifies the rank the Constitutional Court (whose members are of powers that correspond to the Autonomous elected only by the central institutions and not Community according to the stipulations of ar- by the autonomous communities) when inter- ticles 148 and 149 of the Constitution and, in preting the particular conflicts in this respect has the case of the Basque Country, also to addi- been uneven in favour of the state positions.9 All tional provision number 1. Following these reg- this has pushed many politicians (and scholars) ulations, the act on autonomy was drafted with to claim that in practice the BAC has no exclu- the clear political intention of assuming for the sive powers, regardless the wording of the stat- BAC the highest possible level of autonomy and ute. A new threat of invasion of regional pow- powers within this framework. It was necessary ers appears in recent times with the practice of that this be made explicit in the draft, since the the central government of invoking a kind of a Constitution foresees that the remaining powers “spending power” by which the state can finance will correspond to the State, unlike in a federal concrete policies even in fields falling within the

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powers of the Autonomous Communities (such creates in practice the problem of “de-legaliza- as promoting access to housing or the helps for tion” in those areas in which provinces have full supporting families, fields in which the Autono- competence, such as tax law and others. An im- mous Communities are already active). portant consequence of this is that judicial re- In addition to these debates, it must also be view of these provincial laws can be demanded considered that the formal structure of the Span- by any institution or person (unlike in the case ish state does not correspond to the traditional of formal acts), and a great effort of coordination model of a federal state. This is particularly im- between Basque and provincial institutions is re- portant in aspects such as the participation of the quired to satisfy standards from the State or the autonomous communities in the construction of European Union bodies.12 the state will or in external representation. In To put it in a nutshell, the main concern today principle, autonomous communities are exclud- about the Basque Statute from a legal perspective ed from the composition of the central consti- is the feeling by some Basque institutions and tutional institutions. Only the Senate shows a political parties that the significance and content somewhat and obviously outdated territorial ba- of the Statute approved in 1979 has been limited sis, which in fact is not effective given the re- in different ways in these 28 years since its adop- duced significance of the second chamber within tion. This is considered by some sectors even as the current system. There is an almost total una- a legal violation of the Statute itself, while oth- nimity among all kind of actors on the need of ers (some of them not being very enthusiastic deeply reforming the Senate, but so far no seri- with the Statute in 1979) now use the Statute ous proposal has been formulated. In the field of as the main hallmark to be defended. Paradoxi- the external representation, the State has tradi- cally, unlike in other (most of the) Autonomous tionally invoked its exclusive power in interna- Communities, which have already amended tional relations, but in the last years some other their statutes, some of the clauses of the Basque possibilities have appeared thanks to some spe- Statute haven not been yet implemented, like the cific statements of the constitutional court10 and transfer of employment policies, administration new developments in respect to the representa- of penitentiaries in the BAC or economic man- tion of Autonomies’ interests within the Spanish agement of the Social Security. Even more, some delegations before the European Union.11 of the powers to be devolved to the BAC are ex- In parallel to these factors, one must also take plicitly denied by the central government (as it into account the original territorial structure of happens with the transfer on the power on peni- the BAC in comparison with other autonomous tentiary establishments, included in article 12.1 communities. From a legal point of view, the his- of the Statute, that was again refused by the pres- torical territories or provinces have the power to ident of the government in the last political de- pass legislation on certain matters. However, al- bate in June). In any case, legal disputes about though the democratic legitimacy of these reg- the interpretation of the Act on Autonomy or, in ulations is similar to that of the Autonomous case, about the proceeding to amend the Statute Communities’ acts, their legal rank cannot be must be submitted to the Constitutional Court, equal to formal laws according to the Spanish which is seen by some actors and parties as non- constitutional framework. Thus, provincial laws impartial. All this entails a quasi-permanent cannot be challenged before the constitutional blockade of the legal framework of the auton- court, but they can be challenged before ordi- omy, which is deeply linked to the political con- nary courts, like development regulations. This flict that characterises the Basque reality.

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Evolution: The Political Perspective PNV 22 seats (pro-sovereignty) PSOE 18 seats (centralistic) As we already explained, the Basque society is PP 15 seats (centralistic) highly fragmented from a political perspec- EHAK 9 seats (pro-sovereignty/ tive. As for the main political parties, which are pro-independence) present in the BAC, we can distinguish those in EA 7 seats (pro-sovereignty/ favour of Basque sovereignty (e.g. right to self- pro-independence) determination) and those Spanish political par- EB 3 seats (pro-sovereignty) ties opposed to such an idea. Among the first Aralar 1 seat (pro-sovereignty/ group, the oldest and main political party is PNV pro-independence) or Basque Nationalist Party. EA (“Basque Soli- darity”), Aralar (the proper name of a Basque The current government is composed by PNV, mountain) or EB (“United Left”) are smaller EA and EB with a total amount of 32 seats out left-wing parties popping around the same idea of 75. All pro-sovereignty parties13 sum up a to- of sovereignty. Finally, Batasuna (“Unity”) was tal of 42 MPs (of which theoretically 17 pro- banned in 2003 for acting as a political branch of independence), while Spanish parties hold 33 ETA, but new formations with different names seats. take over its representation in different institu- The debate on autonomy or about the Statute, tions (EHAK in the Basque Parliament). On is linked to the political debate on sovereignty the other side, the two main Spanish political or self-determination. To make it more difficult, parties, PSOE (socialist) and PP (conservative) this controversy about the subject enjoying the represent the “unionist” political spectrum in the last word in political terms is contaminated by BAC. the use of violence by ETA. This terrorist or- Electoral behaviour of the Basques hardly ganisation claims to defend Basque sovereignty changes from one election to another, although through armed struggle. Although popular sup- the scope of the election (general, Basque, local) port for the use of violence is almost margin- is a conditioning factor. Since 1980, when the al, its actions and the threat of violence becomes first regional elections were held, pro-sovereign part of the debate. The other way round, the de- political parties have obtained the absolute ma- bate on self-determination becomes very often jority in all elections to the Basque Parliament linked to the searching of peace. (1980, 1984, 1986, 1990, 1994, 1998, 2001 and In this difficult context, a growing debate on 2005). PNV or Basque Nationalist Party has the future of autonomy has appeared over the always been the first political force in terms of last 10 years. The Basque oriented parties are ei- votes, and a PNV president has headed all gov- ther frustrated about the real possibilities of the ernments so far. Apart from 6 years of exclusive current Statute or determined to gain formal PNV governments, different coalitions of PNV recognition of the sovereignty. On the contrary, with PSOE, EA or EB have been in office for Spanish political parties like PSOE and PP are longer or shorter periods. firmly attached to the current autonomy system After the last election in year 2005, the com- as part of the Spanish constitutional structure. position of the Basque Parliament in number of PSOE shows a more flexible attitude towards a seats is like follows: moderate amendment of the Statute, but without taking into consideration any formal declaration of self-determination or symbolic issues

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like specific international representation. From existing level of autonomy and the other has to this perspective, it seems extremely difficult that do more with the incardination of the Basque au- both sides of parties can arrive to a common tonomy within the Spanish general framework. ground of political principles, since the Gordian The first problem is a consequence of the cur- knot of the “right to decide” constitutes the red rent system of autonomy. In fact, the level of line dividing both fields. self-government enjoyed today by the BAC is By looking at sociological surveys on these is- relatively high in comparison with other auton- sues, we can see that also the Basque society as omous regions in Europe. Legally speaking, it such is deeply divided on the final question about cannot be denied that Basque autonomy is one the model of relation with Spain. Basque orient- of the most substantial models of decentralisa- ed positions seem to represent the majority of tion that are usually found in complex States, al- the population of the BAC but, in any case, there though many disputes arise when implement- is a significant opposition to such positions by ing the stipulations of the Statute (as we already a strong minority, and deep differences between explained in the previous chapter). The Basque the three territories. Thus, attitudes towards the autonomy even includes today a large self-gov- possibility of Basque independence are quite bal- ernment in tax matters that in some way ensure anced (30% agree, 35% disagree; 20% depending its financial sustainability. Thus, any reform of on the circumstances)14, but the results by age, the current system in order to increase the level territory, origin or political sympathy show dra- of self-government must be built on rather sen- matic divergences. The same differences appear sitive areas for the State. Either we try to find when people are asked about their vote on a hy- a substantial set of new competences or powers pothetical referendum on independence.15 for the Autonomous Community (which in fact As for the idea of self-determination, which is could mean the “emptiness” of the State” with- at the very centre of the Basque political agenda, in the Basque Country, an idea that would be the population seem to have a clear idea about fiercely rejected by the Spanish oriented sec- its meaning. Thus, when people is asked about tors), or we go into symbolic elements, trying to the meaning of such a concept, 64% of the re- emphasize the recognition of a separate identity spondents identify self-determination with the (for instance, recognising a different nationality, right to decide the political status of the country, or allowing a separate international representa- while only 23% identifies it exclusively with in- tion in cultural or sport events). And this second dependence.16 This and other data suggest that way of satisfying demands of a higher level of Basque society does not show a clear majority in autonomy seems also to be totally unacceptable favour of independence, whereas is largely in fa- from the State perspective.17 The conclusion is vour of being asked via referendum about its po- that there seems to be little scope for satisfying litical status. It seems that there is a will of a larg- the growing demands of self-government with- er degree of autonomy and singularization (an out upsetting the “unionist” positions. asymmetrical institutionalization) of the Basque The second problem is partially linked to the community, without breaking definitively the previous one, but we identify it better from the formal relation with the Spanish State. general perspective. In fact, it refers to the never- This position, which can represent a kind of a ending debate on the territorial structure of the common ground within the BAC’s society, has State, which in practice is on my opinion a ques- to face, however, two important obstacles when tion of symmetry and asymmetry. Unlike the looking for implementation. One refers to the Italian Constitution, the 1978 Constitution es-

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tablishes in this point a very broad and open sys- rical perspective, and this political will clashes tem. Thus, the initial constitutional agreement with the possibility of accommodating Basque (in which Basque nationalists did not partici- or Catalan (maybe also Galician) specific iden- pate) was possible thanks to the different read- tities and political demands. The conflict is to ings of an ambiguous text. In a first period of the be present in the long-term, since the territorial evolution of autonomies in Spain some auton- model is one of the main resources of the politi- omous communities were in fact more power- cal agenda for the two dominant parties. ful than others, according to different proceedings.18 However, since the first wave of reforms of Statutes in the early nineties, it is rather clear that the evolution of the whole system is towards Evaluation of Autonomy a homogeneous framework for all autonomous and Possible Future Scenarios communities.19 The idea of a final symmetrical model was According to a survey delivered by the Basque challenged not only by the proposal of amend- Government with occasion of the 25 years of ment of the Basque Statute in 2004, but also by the Statute, an overwhelming majority of the the bill on a new Act on autonomy for Catalo- Basque citizens expressed a positive outcome nia, passed by the Catalan parliament in 2005.20 of the autonomy. Positive opinions rose up to The negotiation of this new Statute for Catalo- 65%, whereas negative perceptions supposed nia, and the dramatic changes that were intro- only 7% of all responses. This positive evalua- duced in the original proposal by the central par- tion was supported in the three provinces, and liament, show that the possibility of creating a in all age segments. Left wing and pro-sovereign formally asymmetrical model is not possible in people showed a more positive attitude than Spain. The consecutive reforms of the Statutes those of right-wing and centralistic opinions, al- of Baleares, Valencia and, above all, Andalusia, though the positive response was dominant in showed that any further step in regard to one re- all groups. The most enthusiastic responses were gion will be followed by others in an attempt to those from the sympathizers of the political par- neutralise the any kind of special status for any ties at office in the Basque Government, while of the regions. In a more clear way, the idea of the less positive responses were given by voters reforming the Constitution and recognising the of the Popular Party, whose positions severely idea of Spain as a plurinational State was totally differed, once again, from those of the rest of the defeated in that debate. Therefore, the demand electorate.21 for a formal recognition of singularity, which is The Basque citizens seem to evaluate in very present at least in Catalan and Basque socie- positive terms the achievements of the Basque ties, is largely opposed in the rest of the country. autonomous institutions in fields like public The Spanish majority tends to identify asym- health, Basque language, education, culture, pub- metry with privilege or with national division lic works and social welfare. When asked about and does not consider Spain to be a plurination- the institutions that have contributed to the deal State, putting all autonomous communities velopment in the last 25 years, Basque citizens in the same political level (what in Spanish is show a clear option in favour of autonomous in- called “café para todos” “coffee for everybody-). The stitutions such as the Basque Government (by reform of the constitutional structures can only far the most appreciated one with a 56% of re- be successful from the equalitarian and symmet- sponses), the municipalities and the provincial

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governments (35% and 34% of mentions). On Looking from a global perspective, it must the contrary, both the State government and the be recognised that the system of autonomies in European Union are hardly considered (11% and Spain, although showing some shadows, consti- 7% respectively). All this shows that the Basque tute the most important effort of the new con- society clearly links self-government with social, stitutional period after 1978. It can be consid- cultural and economic developments.22 ered in general as a successful experiment in From this perspective, it could seem that the respect to the combination of the regional and current system of autonomy is highly appreciated national identities, and a way of approaching the among the Basque citizens. However, at the same administration to the citizens in all the country. time, the Basque society claims higher levels of However, in respect to the majority of the Cata- self-government, as we already explained, and a lan and Basque societies (and a minority in the different system of relation with the State, de- case of Galicia), the overall evaluation of auton- manding the recognition (maybe the exercise) of omy cannot be so enthusiastic. In fact, after more the right to self-determination. Thus, in the same than 25 years of self-government, in these two survey, a 64% of the citizens of the BAC agree societies a significant degree of political frus- with the idea of the Basque Country being a dif- tration is still present. The initial expectations ferent people with its own identity, and 61% of about the Statutes of autonomy have been di- those answering expressly agreed with the right minished by the legal and political evolution of to self-determination (another 20% showed its the system, and the incapacity of the state to rec- disconformities with such an idea).23 In concord- ognise its plurinational being. ance with this, a clear majority of the population Nevertheless, these two cases are not identical. showed agreement with the proposal of a new In the case of Catalonia, the process of reform- Statute passed by the Basque Parliament and re- ing the Statute, developed between 2004 and jected by the central parliament in 2005. 2006 has meant another step forward, even if the In this respect, it looks that the Basque soci- initial text approved by the Catalan parliament ety is happy of having enjoyed a significant de- was largely reshaped by the central parliament gree of autonomy for the first 25 years. But at the and dramatically downgraded both in symbol- same time, either the current system of autono- ic aspects and in terms of powers. However, the my is not perceived as sufficient, or the success political climate of Catalonia is not that of social of it has pushed further demands of increasing fragmentation and the distances between the dif- the level of self-government, including recogni- ferent ideologies are not deep enough to avoid a tion of the right to decide. It is also true that coalition government composed by the Catalan there is a significant minority within the Basque branch of PSOE, ecosocialists and a left-wing society that shows a fierce opposition to weak- pro independence party. Unlike in the Basque en the links with the rest of the state and rejects Country, the debate on the economic benefits or any debate about self-determination. The rele- costs of autonomy is also an important issue in vant point in this picture is that a large majority Catalonia and it seems that there is still a way of the Spanish society shares the position of this to go in the negotiations between Catalonia and latter minority and can only be ready to admit the State in this important aspect. higher levels of autonomy (never self-determi- On the contrary, in the case of the Basque nation) in the case that the new devolved powers Country, it has been so far impossible to amend are distributed to all autonomous communities the act on autonomy in force since 1979. The or they have no external symbolic value. level of political agreement on substantial issues

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is rather low, since the red line dividing those omy and specific recognition, and at the same parties in favour or against Basque sovereignty time, although satisfying the positions of those (right to decide or self-determination) seems to defending the status quo does not ensure it for- establish a growing ideological fence. The lev- ever. el of consensus of the Statute in 1979 would be Autonomy can be considered as a successful now impossible to be achieved, even around the experiment for a first stage, but the problem aris- same text. Those who saw the Statute as a first es once this first period of 25 years is over. From step in the way to sovereignty claim that it has a managerial point of view the positive evalua- not even completed yet, and nowadays the de- tion of autonomy is clear, but from the perspec- fence of the statute is linked to that of the con- tive of satisfying the demands of the pro-Basque stitution. Paradoxically, those institutions cre- oriented sector of the society is a failure. As for ated by that statute have already proclaimed it being an adequate tool to integrate this sector outdated, but some (?) step forward has not been into the Spanish State, it has also been a failure, even considered as legitimate by the state insti- and probably it will keep like this until there is a tutions and the unionist political parties. Even formal and material recognition of the national more, unlike in Catalonia, the debate on eco- plurality of the Spanish State, something which nomic matters is not a resource, since the sys- is far from becoming real in a medium term. tem of “Concierto”, specific of the Basque Coun- There are still two other possible scenarios try and Navarre, guarantees a significant level of when looking to the current political situation self-sufficiency for the BAC. This means that a concerning autonomy in the Basque Country. In new economic deal cannot be an instrument to the first one, some parties would reach to a sig- secure a new consensus for the next 25 years. nificant level of consensus to amend the current What in practice has been happening for the statute. This would entail in any case an agree- last three years is a kind of veto of the central po- ment between the so called “moderate” nation- litical parties to any initiative of amending the alist parties (above all the PNV) and the PSOE autonomy system by those who are demanding which, at the same time, should be in office in more self-government, this is to say the pro-sov- Madrid to be able to give the way in the central ereign parties that make a majority within the parliament regardless the position of the Popu- Basque institutions. As the political and institu- lar Party. This sort of agreement seems very dif- tional situation of the Basque Country is rather ficult today, given the position of those parties important for the attitude of the two big parties in respect to the Gordian knot of self-govern- in the whole Spain, Basque politics is to some ment/self-determination. But even in the case extent kidnapped by a double factor: on the one that such an agreement happened (which it is hand by the extreme social sensitivity of the not so difficult if PNV went for a government Spaniards ins respect of asymmetry or the terri- axis with PSOE, including probably EB), the re- torial debates; on the other hand, by the persist- sult would be a much lower level of political con- ence of the violent actions of ETA, claiming the sensus than the one produced in 1979, since it denial of sovereignty by the State as the main ar- would be quite possible that PP on the one hand gument to go on with the armed struggle. and Batasuna, Aralar and EA, on the other hand In this complex panorama, the most likely sit- would not be happy with the content of such a uation is that of the quasi-permanent blockade deal. In that scenario, the involved parties should of the legal system. This would prolong the frus- opt between going on with the reform even if tration of those sectors demanding more auton- consensus is lower than in 1979 or waiting again

14 Report from the Åland Islands Peace Institute 3-2008 EDUARDO J. RUIZ VIEYTEZ The Evolution of Autonomy in the Basque Country

in the long-term for the end of the blockade. Bibliography The second scenario would be that of a pro- sovereignty development. In case that the social AJA, Eliseo (2006), “El Estado autonómico en majority in favour of self-determination is or- España a los 25 años de Constitución”, in Javier ganised around a clear political project, after a PEREZ ROYO, Joaquín Pablo URIAS MAR- TINEZ and Manuel CARRASCO DURAN period of political blockade of any initiative, the (eds.), Derecho Constitucional para el siglo XXI, Basque-oriented parties could present a propos- vol. II, Thomson-Aranzadi, Cizur menor, pp. al of negotiating with the state a new deal. The 4285-4344. initiative would be fiercely opposed not only by ALAEZ CORRAL, Benito (2006), “La reforma the unionist parties, but also by all central insti- constitucional como motor de las transforma- tutions and most of the mass media. However, ciones actuales del Estado español”, in Javier being the pro-sovereign parties unified around PEREZ ROYO, Joaquín Pablo URIAS MAR- TINEZ and Manuel CARRASCO DURAN a common strategy, the political scenario could (eds.), Derecho Constitucional para el siglo XXI, walk in the same direction of that of Quebec. vol. I, Thomson-Aranzadi, Cizur menor, pp. Nevertheless, this option presents also many dif- 465-488. ficulties. On the one hand, the PNV should clar- ALBERTI ROVIRA, Enoch (2006), “Las refor- ify its traditional ambiguous position on the final mas territoriales en Alemania y en España y la aim of the party and this could have a cost in the sostenibilidad del paradigma autonómico es- pañol”, Revista Española de Derecho Constituci- short-term that would be difficult to assume for onal, no. 78, pp. 9-42. the party leaders. Second, for such a hypothesis, ALVAREZ CONDE, Enrique (2005), Curso de ETA should put a definitive end to violence. Al- Derecho Constitucional, vol II, 5th. ed., Tecnos, though this condition is not strictly necessary, in Madrid, pp. 561-563. political terms it would be necessary to gather all ARAGON REYES, Manuel (2007), “La organ- the possible supports for the idea of sovereignty, ización institucional de las Comunidades au- especially looking to a (probably illegal) referen- tónomas”, Revista Española de Derecho Constitu- cional, no. 79, pp. 9-32. dum. In that respect, collaboration among par- AURESCU, Bogdan (2007), “Cultural Nation ties would only be possible if violence is clearly versus Civic Nation: Which Concept for the out of the way. Finally, the main strength of this Future Europe? A Critical Analysis of the Par- possible scenario would not be other than the liamentary Assembly’s Recommendation 1735 popular support to such an initiative. Although a (2006) on The Concept of Nation”, European third of the population would certainly be in fa- Yearbook of Minority Issues, vol. 5, 2005/6, EC- MI-Eurac Research, Martinus Nijhoff publish- vour of a process of confrontation with the State, ers, Leiden-Boston, pp. 147-159. the crucial second third would probably opt de- CASTELLS ARTECHE, Jose Manuel, (2007), pending on the circumstances and attitude of El hecho diferencial de Vasconia. Evidencias e in- the different political and social actors. In this certidumbres, Fundación para el estudio del case, the debate would not be any longer on the Derecho histórico y autonómico de Vasconia, traditional concept of autonomy, but on a kind Donostia-San Sebastián. of association deal that would for sure entail the COBREROS MENDAZONA, Edorta (2006), “La modificación expresa de la Ley de Terri- recognition by the State (and by the Spanish so- torios Históricos como requisito para reducir ciety) of an asymmetrical system, something that las competencias de los órganos forales”, Re- appears very difficult in the current situation. vista Vasca de Administración Pública, no. 75, pp. 49-80

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DE BLAS GUERRERO, Andrés (2004), inacionales y modelos federales. El federalismo “Veinticinco años de Constitución y nacional- plurinacional”, paper presented at the interna- ismo”, Revista de Derecho Político, no. 58-59, pp. tional conference “Democracia, ciudadanía y 765-778. territorialidad en sociedades plurinacionales”, ETXEBERRIA MAULEON, Xabier; GOMEZ Instituto Internacional de Sociología Jurídica - ISA, Felipe; RUIZ VIEYTEZ, Eduardo J.; VI- Universidad del País Vasco, Oñati (Gipuzkoa), CENTE TORRADO, Trinidad L. and ZUBE- 14-16 March 2007. RO BEASKOETXEA, Imanol (2002), Dere- RUIZ VIEYTEZ, Eduardo J. (2004), “Federal- cho de autodeterminación y realidad vasca, Basque ism, Subnational Constitutional Arrangements, Government, Vitoria-Gasteiz. and the Protection of Minorities in Spain”, in FERNÁNDEZ ALLES, José Joaquín (2006), Alan TARR, Robert WILLIAMS and Josef “El Estado de las autonomías: el método con- MARKO (eds.), Federalism, Subnational consti- stitucional de la España vertebrada”, in Javier tutions and Minority Rights, Praeger, Westport- PEREZ ROYO, Joaquín Pablo URIAS MAR- Connecticut-London, pp. 133-153. TINEZ and Manuel CARRASCO DURAN RUIZ VIEYTEZ, Eduardo J. (2005), “¿Hacia un (eds.), Derecho Constitucional para el siglo XXI, estado plurinacional? Reforma de la Constituci- vol. II, Thomson-Aranzadi, Cizur menor, pp. ón, modelo de Estado y conflicto vasco”, Pasajes 4493-4510. de Pensamiento Contemporáneo, no. 17, pp. 77-96. FOSSAS, Enric and REQUEJO, Ferrán (1999), RUIZ VIEYTEZ, Eduardo J. (2006), Minorías, Asimetría federal y Estado plurinacional. El debate inmigración y democracia en Europa. Una lectura sobre la acomodación de la diversidad en Canadá, multicultural de los derechos humanos, Tirant lo Bélgica y España, Trotta, Madrid. blanch, Valencia. JAUREGUI, Gurutz (1999), “Autodetermi- RUIZ VIEYTEZ, Eduardo J. (2007), “The New nación: más allá de la autonomía”, El Ebro, no. Act on Autonomy of Catalonia”, European Year- 1, pp. 27-39. book of Minority Issues, vol. 5, 2005/6, ECMI- LASAGABASTER, Iñaki (1999), “Derecho, Eurac Research, Martinus Nijhoff publishers, Política e Historia en la autodeterminación de Leiden-Boston, pp. 503-509. Euskal Herria”, in Mikel GOMEZ URANGA, RUIZ VIEYTEZ, Eduardo J. and KALLONEN, Iñaki LASAGABASTER, Francisco LETA- Markko (2004), “Territorial Autonomy and MENDIA and Ramón ZALLO (coord.), Prop- European National Minorities: South Tyrol, the uestas para un nuevo escenario. Democracia, cultura Basque Country and the Aland Islands”, Euro- y cohesión social en Euskal Herria, Manu Robles- pean Yearbook of Minority Issues, vol. 2, 2002/3, Arangiz Institutua, Bilbao, pp. 175-275. ECMI-Eurac Research, Martinus Nijhoff pub- MAIZ, Ramón (2007), “Las ideologías nacion- lishers, Leiden-Boston, pp. 247-281. alistas y la teoría normativa del federalismo multinacional”, paper presented at the international conference “Democracia, ciudadanía y territorialidad en sociedades plurinacionales”, Instituto Internacional de Sociología Jurídica - Universidad del País Vasco, Oñati (Gipuzkoa), 14-16 March 2007. MALLOY, Tove H. (2007), “Deconstructing the Nation for the 21st Century through a Critical Reading of the Parliamentary Assembly’s Rec- ommendation 1735 (2006)”, European Yearbook of Minority Issues, vol. 5, 2005/6, ECMI-Eurac Research, Martinus Nijhoff publishers, Leiden- Boston, pp. 161-177. REQUEJO, Ferrán (2007), “Democracias plur-

16 Report from the Åland Islands Peace Institute 3-2008 EDUARDO J. RUIZ VIEYTEZ The Evolution of Autonomy in the Basque Country

Notes against. See next chapter for identifying the different political parties. 7. Through the preliminary debate that is 1. RUIZ VIEYTEZ, Eduardo J. and KA- compulsory for all legislative initiatives not LLONEN, Markko (2004), “Territorial coming from the government. It is called as Autonomy and European National Minori- “toma en consideración” (taking into consid- ties: South Tyrol, the Basque Country and eration). Both PSOE and PP voted to reject the Aland Islands”, European Yearbook of the project, whereas the Basque, Catalan and Minority Issues, vol. 2, 2002/3, ECMI-Eu- Galician parties voted in favour of its consid- rac Research, Martinus Nijhoff publishers, eration by the parliament. Leiden-Boston, pp. 247-281. Also, ETX- 8. ALVAREZ CONDE, Enrique (2005), Cur- EBERRIA MAULEON, Xabier; GOMEZ so de Derecho Constitucional, vol. II, 5th ed., ISA, Felipe; RUIZ VIEYTEZ, Eduardo Tecnos, Madrid, p. 561-563. J.; VICENTE TORRADO, Trinidad L. 9. The website of the Spanish Constitutional and ZUBERO BEASKOETXEA, Imanol Court is http://www.traibunalconstitucional. (2002), Derecho de autodeterminación y re- es. Unfortunately, the web is accessible ex- alidad vasca (Right to self-determination and clusively through the Spanish language and Basque reality), Basque Government, Vito- there is no information provided in English ria-Gasteiz, pp. 193-265. or in other languages of Spain. 2. In the particular case of the Basque Country, 10. In particular, it is relevant the 165/1994 as a general rule, specific civil law applies to judgement of the Constitutional Court, of 25 people living in a rural environment, whereas May 1994, stating that the permanent repre- urban population follow the common Civil sentation office of the Basque Autonomous Code. Nevertheless, the territorial scope of Community in Brussels is not in itself a vio- application of the common or specific civil lation of the exclusive power of the State on law is complex due to historical reasons. The international relations. main differences between the Spanish com- 11. See the 9 December 2004 Agreement on the mon civil law and the Basque civil law refer participation of the Autonomous Communi- to issues like inheritance rules and economic ties in the formations of the Council of the stipulations of marriages. European Union. Full text (only in Spanish) 3. Organic Law 3/1979, of December 18th. Full at http://www.map.es/documentacion/po- text in English at http://www.nuevoestatuto- litica_autonomica/cooperacion¬autonomica/ deeuskadi.net/docs/state_of_autonomy.pdf asuntos_europeos 4. The referendum on the Basque Statute was 12. On the recent concerns about the distribu- held on 25 October 1979. More than 90% of tion of powers between the Basque common those voting did it in favour, being more than institutions and the Historical Territories, 50% of the census. see COBREROS MENDAZONA, Edorta 5. See full text in English at http://www. (2006), “La modificación expresa de la Ley nuevoestatutodeeuskadi.net/docs/dictamen- de Territorios Históricos como requisito para comision20122004_eng.pdf reducir las competencias de los órganos fo- 6. Basque oriented parties like PNV, EA and rales”, Revista Vasca de Administración Pú- EBvoted in favour of the draft Statute of blica, no. 75, p. 49-80. Autonomy, whereas the two main Spanish 13. This concept would include in the Basque parties (PSOE and PP) opposed it. Batasuna Country all those parties in favour of the strategically decided to split its 6 votes: 3 of right to self-determination. Some of them them supported the proposal and three op- show a pro-independence ideology (Batasu- posed it. As a result of this, 39 votes were in na, Aralar and EA) and others defend feder- favour (being 38 absolute majority) and 35 alist solutions (EB) or some kind of free as-

Report from the Åland Islands Peace Institute 3-2008 17 EDUARDO J. RUIZ VIEYTEZ The Evolution of Autonomy in the Basque Country

sociation system (PNV). of the 25 years of self-government and the 14. Previous surveys give quite similar results. proposal of a new Statute”, March 2005, p. These figures come from the “Sociometro 10. vasco” no 33, march 2007, published by the 22. See, Sociometro vasco,, Special issue… cit., p. Basque Government. 20. 15. See different data provided by the Basque 23. See, Sociometro vasco,, Special issue… cit., p. Government studies’ cabinet at http:// 40. www1.euskadi.net/estudios_sociologicos/ sociometros_c.apl; The University of the Basque Country has also a periodical survey about political opinion in the Basque society, known as “Euskobarómetro”, available at http://www.ehu.es/cpvweb/pags_directas/ euskobarometroFR.html 16. Sociometro vasco no 34, June 2007. 17. It is interesting in this sense the debate on the possibility of official recognition to Basque or Catalan football national teams (an idea clearly supported in the respective autonomous communities) and the closed opposition to that idea from the Spanish perspective in the rest of the country. 18. On this process, see RUIZ VIEYTEZ, Eduardo J. (2004), “Federalism, Subna- tional Constitutional Arrangements, and the Protection of Minorities in Spain”, en Alan TARR, Robert WILLIAMS y Josef MARKO (eds.), Federalism, Subnational constitutions and Minority Rights, Praeger, westport-Connecticut-London, pp. 133-153. 19. ARAGON REYES, Manuel (2007) “La or- ganización institucional de las Comunidades autónomas “, Revista Española de Dere- cho Constitucional, no 79, p. 9-32. Oppos- ing, ALBERTI ROVIRA, Enoch (2006) “Las reformas territoriales en Alemania y en España y la sostenibilidad del paradigma autonómico español“, Revista Española de Derecho Constitucional, no 78, p. 9-42. 20. On this new act on autonomy and its political background, see an outline at RUIZ VIEYTEZ, Eduardo J. (2007), “The New Act on Autonomy of Catalonia”, European Yearbook of Minority Issues, vol. 5, 2005/6, ECMI-Eurac Research, Martinus Nijhoff publishers, Leiden-Boston, pp. 503-509. 21. Sociometro vasco, Special issue “Valoration

18 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

Role and Prospects of the Spanish Self-Governing Communities in European Matters and Institutions.

Iñigo Bullain

At the end of the 1970s, Spain embarked upon Introduction: the transformation of a long lasting national- Some Preliminary Considerations catholic dictatorship, a regime inspired in form by the Mussolinian fascist corporate State, into a he Spanish constitution of 1978 does not European parliamentary democracy. The 40 year contain a single reference to the European isolation that accompanied franquism resulted TUnion. Only in art. 93 does it mention that “au- in a detachment from the model of State devel- thorisation may be granted by an organic act to oping in Europe after World War II, as well as conclude treaties by which powers derived from from the supranational process of European in- the Constitution shall be transferred to an inter- tegration. In fact, as is reflected in the text of the national organisation or institution. It is incum- Constitution of 1978, the European perspec- bent upon the Cortes Generales or the Govern- tive is utterly absent. However, the accession of ment, as the case may be, to ensure compliance Spain to the EEC only 8 years later (1986) was with these treaties and with resolutions origi- not accompanied by any constitutional reform, nating in the international and supranational and the successive reforms of the European trea- organisations to which such powers have been ties (European Act, Treaty of European Union, so transferred”. The mention of “supranation- Amsterdam or Nice) did not merit constitutional organisations” is the only indirect reference to al reform either. Nor were the statutes of any of the process of integration or to the EU institu- the Self-Governing Communities reformed in tions in the Spanish constitutional text. Most order to take account of the important effects of the statutes of autonomy which were drafted that the development of the integration process between 1979 and 1982 contain no references was having on the competences of the Autono- to the then European (Economic) Community. mous Communities. One can observe in the constituents while draft- In fact, the successive and constant attribu- ing the Constitution as well as in the region- tion of new powers to the EU has been made at al elites responsible for the autonomy process- the cost of State powers, which, in those mem- es and the statutory textes an evident European ber States with a regional structure, as Spain, are blindness. Or at the very least, with the excep- frequently powers previously enjoyed by the re- tion of the new Statute of Catalonia, a European gional institutions. Central institutions can com- myopia has been maintained for the more than pensate for the loss of their powers through their 30 years from the accession up until the present keystone position in the European Communi- day. ty’s decision-making structure, sharing with

Report from the Åland Islands Peace Institute 3-2008 19 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

other member States the decisions upon mat- addition to all that, in the Basque Country, as ters subject to European power. Self-Governing well as a national political conflict, there exists Communities, on the other hand, are involved in a terrorist organisation promoting violence and a sort of “zero-sum game”. Although the trans- whose Marxist ideology is at odds with the lib- ferred powers are matters of regional, as well as eral and parliamentary model that characterises 2 State, competence, regional institutions do not the process of European integration. have adequate instruments for participation and In addition to the previously mentioned Eu- representation at the European level. On behalf ropean blindness there are other factors that ex- of the member States, central powers have pro- plain the position of the Self-Governing Com- cured almost monopolistic rights of participa- munities in relation to the process of European tion and representation, so that regions tend to integration. An important factor in this regard is become weaker as the European process devel- the influence of political parties upon the region- ops. It is not just that the executives of the Self- al structures. One can say that the political influ- Governing Communities have lost the capacity ence placed upon the regional parties is stronger to take decisions over matters of their compe- than the one that flows from the regional insti- tence, according to the distribution of powers es- tutions themselves. There are several reasons for tablished by the Constitution and the Statutes this. On the one hand, because Self-Governing of Autonomy, but in addition to that, the loss Communities are a novelty for most of the terri- of powers is particularly severe for Autonomous tory and the population. Only Catalonia and the Parliaments, which have been stripped of legis- Basque Country had previously experienced au- lative powers to the benefit of European insti- tonomy during the twentieth century, before dic- tutions and bodies of the Central Power of the tatorship ended it abruptly. On the other hand, State. Both European institutions and central because the regional structure is not accompa- administrations take advantage of the transfer nied by representation and participation of the of powers to Europe in order to reduce regional Self-Governing Communities in the manage- powers and recover decision-making power over ment of the Central Power of the State. matters of regional competence, thus damaging In contrast to what happens in some federal the autonomy internally attributed to the Self- States such as Austria or Germany, where the Governing Communities. Länder have a State institution - the Senate or However, the effect of continuous loss of au- Bundesrat - to represent them and to make them tonomy is not experienced to the same extent participants in the management of the State, as by all of the Self-Governing Communities. For well as in taking decisions on European mat- some, in particular for the Basque Country and ters, in Spain it is not so. The Self-Govern- Catalonia, their marginalisation in Europe is the ing Communities are internally and externally reflection of a particular problem. Europe is not marginalised from participating in State deci- perceived in the same way by two different pop- sions. For the regions, participation in the run- ulations of which one is experiencing a conflict ning of the State depends on the functioning of of national identities and the other is not. Nei- the so called Sectorial Conferences (Conferen- ther is the European dimension viewed equal- cias Sectoriales). These are administrative units ly if one of the regional languages, like Cata- which bring together representatives of the cen- lan or Basque, is ignored at the European level, tral and regional administrations to try to pro- not that they have yet obtained recognition in cure joint positions among regions in matters of 1 the central institutions of the Spanish State. In their power and to agree them with the central

20 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

administration. This form of thematic forum is tral administration. This has been accompanied also employed for matters related to regional and by silence and indifference from many of the re- European power: the so called Sectorial Confer- gions. The method used to manage European ence for European Affairs. But the functioning matters, the so called CARCE (Sectorial Con- 4 of this kind of administrative body, when it func- ference for European Affairs) , as even the Cen- tions, is simply random. Because the main fac- tral Administration admits, has been of no use tor in its functioning is the will of the two main for involving the Self-Governing Communities 5 political parties which dominate most of the re- in the European decision-making process. This gions. So it is that most frequently the positions failure has been denounced year after year by the taken by the regions are decided in extra-region- notorious report “Informe sobre Comunidades 6 al forums (the headquarters of the popular and Autónomas” . socialist parties in Madrid), and if one of the two During this first period the Self-Governing parties is running the central government, the Communities were informed about EU matters other party will run the regions under its control in only a very non-systematic way, and they were as an instrument of opposition. scarcely able to take decisions among them- 7 In the following pages we will try to analyse selves. In addition, the participation of the Self- the role and prospects of Self-Governing Com- Governing Communities was limited to certain 8 munities in European matters and institutions, committees of the European Commission. In with reference to other Self-Governing regions those committees the Self-Governing Commu- of the European Union. nities had to operate without any clear criteria for developing their position. Besides, on many occasions, some of the committees became inac- tive or simply disappeared. Moreover, and in re- Participation of the Self-Governing lation to the then so called regional counsellor Communities in European Affairs in the Spanish Permanent Representation, one cannot properly say, on the basis of his powers Concerning regional participation in Europe- or the functions attributed to him, that he was a an affairs, it is possible to distinguish two peri- representative of the regions. It is more accurate ods. The first lasted from the incorporation of to describe him as a Spanish diplomat designat- the State to the EEC in 1986 until the accords ed by the central administration to liaise with of 2004, and the second has been running since regional administrations in matters of European then. and regional power.

9 1986-2004. The accords of 9th December 2004 3 10 Until recently , Self-Governing Communities The content of the accords has permitted the were entirely marginalised from European af- Self-Governing Communities to participate in fairs. Even today, twenty years after the incorpo- four of the nine different configurations of the ration into Europe they do not have a constitu- Council of Ministers of the UE: 1) Agriculture tional recognition of information, participation and Fishing; 2) Environment; 3) Employment, or representation rights in European affairs. Social Policy, Health and Consumers; 4) Educa- One can see that through the process of Euro- tion, Youth and Culture. Moreover, there is re- pean integration many of the regional powers gional participation in the working groups of the have been transferred into the hands of the cen- Council and the COREPER. Thus, representa-

Report from the Åland Islands Peace Institute 3-2008 21 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

tives of the Self-Governing Communities will petitiveness Council. It is also anticipated that be able to participate as members of the Spanish there will be translations into the regional lan- delegation in meetings of the Council of Minis- guages of the body of community legislation in- ters (CMUE) according to a rotating six month cluded in EUR-Lex. In 2005, representatives of 11 system. Additionally, two officials of the Self- the autonomous regions participated on 23 oc- Governing Communities will be members of casions in meetings of the Council of the Euro- 14 the Permanent Representation, their mission pean Union. As for COREPER, ( Committee being: to serve as a link between the offices of of the Permanent Representatives ) the two au- regional representation in Brussels and the rest tonomous region councillors [in REPRE] – cur- of the members of the Spanish Permanent Rep- rently officials from Andalucia and Galicia – at- resentation; to facilitate the flow of European tended nine meetings and passed on details of information to the Self-Governing Communi- the proceedings to the Spanish ministry of pub- ties; to follow regional participation in the sec- lic administration. Representatives of the au- torial conferences; and to inform of negotiations tonomous regions participated on 103 occasions in Brussels. The accords are not incompatible in meetings of Council workgroups, primarily with the bilateral lines of participation that the through members of the respective offices of the 15 central government could agree with some Self- autonomous regions in Brussels. Governing Communities, or with the mainte- On the other hand, there has been a pilot test nance of a special status for Ceuta and Melil- of a rapid alert mechanism to check/control the 12 la. application of subsidiarity by regional parlia- The accords should be situated within the ments. There are still unresolved questions over scope of a new framework for the autonomous the weighing of votes between the Self-Govern- regions, linked to the Conference of Regional ing Communities and the resolution of differ- Presidents, to the planned reform of the Senate, ences with the Cortes. It is an emerging truth and to the process of reforming the Autonomy that the future of the Accords depends on Sen- Statutes of the Self-Governing Communities. ate reform and the introduction of a European Although there have been clear improvements clause, in the context of future constitutional re- compared with the previous situation, this reform, obliging the Government to inform the mains an informal system which is dependent Senate about acts of the EU which have impor- on the sensitivity of whoever is occupying the tant implications for the Self-Governing Com- position of President of the Spanish central gov- munities. 13 ernment. Hence, in 2005 there were two meet- The functioning of the Accords has attracted ing of the CARCE and four meetings of the co- criticism around questions such as the hetero- ordinators. According to the conclusions of the geneity of the criteria for establishing the repre- Council of the European Union in July 2005, it sentation of the Self-Governing Communities, is permissible to use regional languages in the the unequal involvement of the Self-Governing Council, the Committee of the Regions (CoR) Communities in matters of European responsi- and the European Commission as long as prior bility, and the difficulty of reaching positions of 16 notice is given in order to make arrangements consensus at the CARCE. These difficulties for the necessary translation, and the costs are led the Basque Country to reactivate the Basque/ absorbed by Spain. Interventions have already Central Administration Bilateral Commission been made at the CoR in Basque, Catalan and on matters relating to the EU, even though this 17 Valencian, and also in Catalan at an EU Com- has been paralysed since 1999. With regard to

22 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

the participation of the autonomous regions in presence in other institutions like the Parlia- the CoR, this takes place outside the CARCE, ment, the Council of Ministers and the Com- via the Self-Governing Communities direct- mission. ly and usually takes the form of some fifty rulings, largely relating to Communications from The Committee of the Regions. 18 the EU. But the information flows and collab- This is a body that does not have the status of oration at the heart of the CoR show that rela- a community institution. So far it has had a pe- tionships between the Self-Governing Commu- ripheral position in the decision-making proc- nities predominate, and barely exist with other ess. It is a consultative body for various matters 19 European regions. that was created as part of the Maastricht Treaty It should be noted that the loss of autonomy in 1992. Although its denomination is Commit- for the regional parliaments as a consequence of tee of the Regions, most of its members do not European integration has been enormous. Re- represent regions but a variety of different sub- gional parliaments scarcely participate in the de- State local entities. As envisaged in art.263 of velopment of any European regulations in mat- the Treaty, the composition of the Committee ters that previously fell within their powers. It of the Regions is made up of seats distributed is now the Spanish parliament (The Cortes) among the member States. This distribution is which is occupied with those tasks. Moreover, it precisely the same as that for the composition of 21 is frequently the case that European regulations the Economic and Social Committee. The fact or directives are very detailed, so that the task that the same representation has been specified of implementing these rules is in any case much among the member States for both committees reduced. Besides, the use made by the Spanish without taking into account, in the case of the parliament of art.149.1.13 of the Spanish Con- Committee of the Regions, whether States have stitution, which authorises the State to estab- or do not have institutionalised regions, gives lish the general basis to manage the economy, rise to serious doubts about the regional charac- has limited enormously the function of region- ter of the CoR. It appears more like a commit- al parliaments. In addition, one should mention tee to provide a forum in which to involve sub- the lack of interest shown by regions in relation State entities in the management of the internal to European issues. In conclusion it is possible to market, rather than a body to institionalise re- say that regional parliaments in Spain have lost a gional participation. The latter was the objective 20 significant amount of their legislative power. that drove the German Länder to promote the 22 set up of the CoR. But as a matter of fact, only a minority of the members of the CoR represent regions, and an even smaller number of them The Self-Governing Communities represent self-governing regions. The repre- in the European Institutions sentatives of self-governing regions in the CoR represent about 75 regions distributed among 8 We would like to present now a brief outline different member States: German and Austrian related to the presence of the Self-Governing Länder, Belgian regions and cultural communi- Communities in the European institutions. We ties (these being the three federal States of the shall begin with the body in which they have a EU); representatives of Spanish Self-Governing consolidated representation - the Committee of Communities and of Italian self-governing re- the Regions (CoR) -. We will also analyse their gions, as well as representatives of the self-gov-

Report from the Åland Islands Peace Institute 3-2008 23 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

erning archipelagos of Portugal (the Azores and tion of regional structures. Due to a communist Madeira) and Finland (the Åland Islands), and past which was guided by centralistic views and representatives of Scotland and Northern Ire- imposed by a single party system opposed to dis- land. All of these regions have autonomous par- tribution of power, this influx of new members liaments. That is not the case with Wales or the has further weakened the regional character of French regions whose assemblies do not have the CoR. the power to pass primary legislation, but can It is reasonable to believe that the CoR may only legislate within devolved powers. in the future encourage regionalisation in those With regard to the composition of the Com- member States that don’t yet have regional struc- mittee, its heterogeneity causes important func- tures. However, for Self-Governing regions the tional difficulties, because not all of its mem- CoR is a body endowed with powers well short bers represent entities which have powers of of their level of autonomy. Nevertheless it pro- their own in the matters of competence of the cures a forum for relationships among region- CoR. CoR’s areas of interest as recognised by al and local representatives, a must for develop- the Treaty of EU are: education; culture; public ing initiatives of a regional nature. Therefore, health; transEuropean infrastructure networks; the Committee has established several work- economic and social cohesion; as well as other ing commissions: territorial cohesion; economic matters attributed to the Committee through and social policy; sustainable development; cul- various reforms of the TEU: transport; employ- ture, education and research; constitutional af- ment; vocational training; European social fund; fairs, European governance and liberty, security environment; transfrontier cooperation. These and justice; foreign relations and decentralised are the matters upon which the opinion of the cooperation. Committee is required by the Treaty. Howev- Relating to the functioning of the CoR it is er, this is first of all not a complete list of the to be noted that there is some ill-feeling due to matters of regional competence or those with- the lack of attention paid to it by the Council of in the powers of the Self-Governing Commu- Ministers or by the Commission. They are the nities. But secondly these are also matters upon institutions that, according to the Treaty, should 24 which many of the members of the Committee seek the opinion of the Committee but they have no competence within the State to which frequently do not do so. Because neither the they belong. This is the case with many repre- Committee of the Regions nor the Self-Gov- sentatives of municipalities, or of the non Self- erning regions has been granted legitimacy by Governing regions, or of other representatives the Treaty to appear before the Court of Lux- 25 26 of sub-State entities. This heterogeneity in its embourg , their position is clearly weak if such make-up makes decision making in the CoR consultation, though foreseen in the Treaty, is difficult indeed. Besides, the fact that a number not performed. It is also remarkable that while of members of the Committee are also members the Economic and Social Committee has to be of other institutions promotes absenteeism, and/ consulted on matters such as: industry, research, or a lack of rigorous attention to their tasks, and or technological development, the CoR is not 23 this has become a common feature of the CoR. required to be so consulted, although these are In addition, the recent incorporation of a signif- usually matters of regional power. icant number of States from central and east- In any case, it has to be considered that the ern Europe has brought new participants to the opinions of the Committee are not binding, and Committee of the Regions who have no tradi- that it is extremely difficult to ascertain wheth-

24 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

er the opinions of the Committee are taken into State. This has prevented members of the Eu- account by the Council of Ministers or by the ropean Parliament being elected from regional Commission. However, reforms of the Treaty constituencies in order to bring regional legiti- have made it possible that the European Par- macy. This has forced many of the regional parliament may also consult the CoR, and that the ties to cooperate, with parties of different regions CoR, on its own initiative, may issue an opinion joining together in broad coalitions, as a way to 27 on a subject of its interest. aggregate their votes to obtain representation. To conclude these reflections on the CoR it is This is especially necessary where the popula- to be noted that according to art.263 of the TUE tion represented is small, as it is in the case of the all members of the CoR have to be representa- Basque Country. Nowadays some regional par- tives of regional or local entities. But due to the ties have representation in the European Parlia- fact that there is no definition of a European re- ment: the Catalan CIU and the Basque PNV. gion, it is up to each State to determine who is a Others have usually obtained representation regional representative. The ratio between local since 1989: the Catalan Ezkerra Republicana de and regional representatives in the Committee Catalunya; the Basque Eusko Alkartasuna and of the Regions has not been established, nor in Herri Batasuna; the Galician Bloque Nacional what proportion member States should distrib- Galego or the Andalusian Partido Andalucista. ute their representation between the two cate- However, the number of representatives of re- gories. gional parties in the EP is scarce, about twenty out of 785. European Parliament. Although envisaged by the original Treaties, European Commission so far the European Parliament (EP) has not The representation of the Self-Governing been able to develop a uniform electoral pro- Communities in the European Commission is cedure. Thus each member State decides upon through the committees for legislative imple- the procedure to provide the representation that mentation which are part of the structure of the TUE attributes to each of them. This has the European Commission. These committees made it possible that some regions have repre- are different from those whose task is to coun- sentatives in the EP while others, like the Span- sel the Commission on the development of pro- ish Self-Governing Communities do not. Spain posals, which are called consultative committees is a single constituency for the election to the and to which the Self-Governing Communities 28 EP. In contrast, Belgian regions are recognised do not have access. As we have seen previously as separate constituencies, and in the UK some the implementation committees are part of the constituencies are based in Scotland and Wales. so called commitology and are mainly concerned Even Northern Ireland represents a single con- with technical questions. The Self-Governing stituency. There are also several supra-regional Communities have shared their representation constituencies in various countries like in Italy in these committees with other Self-Governing and France, where they group some of the exist- Communities in rotation between two of them 29 ing regions. In Germany there is a mixed system: and for periods lasting four years. a list for the entire country and another list for each Land. However, in Spain the central parliament has imposed just a single constituency for the entire

Report from the Åland Islands Peace Institute 3-2008 25 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

European structure is peripheral. However, re- Council of Ministers gions don’t perceive their marginalisation in Eu- The participation of the Self-Governing Com- rope as a very relevant political issue. European munities in some meetings of the Council of questions usually take second place in the politi- Ministers: agriculture and fishing, social policy, cal agenda. The regional political class, with the health and consumer affairs, education, youth exception of the Catalans, as reflected in the ex- and culture has been more symbolic than ef- tensive number of references to the EU in the fective. As envisaged in the accords of De- Nou Estatut (new Statute) of Catalonia, does not cember 2004 the Self-Governing Communi- have a European perspective. A good example ties have access within the Spanish delegation of this European myopia is that the project of to the meetings of four different configurations the new Basque statute, the so called “ Ibarretxe of the Council according to a six month rota- Plan” elaborated on 2003 only takes account of 30 tion system. These conditions, however, ignore the EU in one of its articles . In truth, only in the European system of negotiation, according the Parliament of Catalonia are European ques- to which every year about a hundred meetings tions commonly debated. of the Council are held in its nine different configurations. Member States negotiate among themselves about all matters of competence of Regional Prospects the EU. Negotiations are not divided into discrete areas. In fact most of the decisions that are Though the reforms included in the project formally taken by the Council are in practice de- of the European constitutional treaty have not cisions previously made in the working groups of come into force due to problems related to rati- the Council or by the COREPER (Committee fication by several countries, it seems very likely of the Permanent Representatives). Usually the that many of the provisions of that constitution- formula for negotiation is such that the issues al treaty project will be incorporated into the refor consideration are linked to other issues pre- form treaty drawn up by a future Intergovern- 31 viously dealt with or to be dealt with in the fu- mental Conference. ture (a “package deal”). When negotiating, every However, one might suggest that the regional State delegation has in mind what has happened situation in the medium term will not differ fun- in the past as well as its expectations for the fu- damentally from the current situation. We will ture. Thus, it is of no interest to the negotiating try to outline in a series of points some of the parties that a representative of a region comes features that will characterise the regional ques- just once or twice a year to Brussels to deal with tion in the EU in the coming years. Briefly they a specific isolated issue. In these circumstances can be summarised as follows: the benefit to the Self-Governing Communities of being at the Council is mainly one of public- 1 regional participation will continue to de- ity, i.e., that their image be linked to such an im- pend on the positions of the regions within portant forum. the member States and these are not ex- One could conclude that the presence of the pected to change in the near future from Self-Governing Communities in the European the current situation; Institutions, except in relation to the Commit- 2 regional heterogeneity will increase after tee of Regions, continues to be essentially sym- the last enlargement involving 12 countries bolic. Even the position of the CoR within the

26 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

with no regional structures; pation should include not only the definition of 3 the functional difficulties for the Commit- the State’s initial negotiating positions, but also tee of the Regions will increase; to take into account that those positions will un- 4 processes of regionalisation will be pro- avoidably be susceptible to modification, as in moted in some member States while in every process of negotiation. Besides, the Eu- others already regionalised they will lead ropean Community model of negotiation does towards federalisation; not work on isolated issues; what happened be- 5 regional questions will be a source of con- fore in negotiations on other issues is inevitably flict in the future of the EU. These five taken into account while negotiating, as is what points are dicussed below. is wanted or expected to happen in the future. For instance, a negotiation about fishing quotas 1. In the EU there has so far not been a terri- might be influenced by what happened in a pre- torial distribution of power taking into account vious negotiation about e.g., citrus fruit, or by the regional level. The European Constitution the next negotiation to be held on industry pol- project did not include any new provisions in re- icy. Every State delegation is well aware of what gard to the regions, and presumably the future was done by other delegations in the past, who Intergovernmental Conference will not do so helped whom or who opposed, and who could be either. It is most reasonable to expect that regional an ally or an opponent in the future when nego- participation will essentially continue to be bound tiating on other issues. One should understand to the diverse systems set up in the member States. that there are no “watertight” compartments of Such systems vary, with respect to the rights of negotiation, and that negotiations are frequent- information, participation and representation ly in form of “package deals”. Thus, to limit re- granted to the regions as well as to the legisla- gional participation to some discrete issues is of tion in which such rights are embedded. All sys- no practical use to the regions, because for those tems intend to include the regions in the devel- taking part in the negotiation, someone who opment and application of European laws on only participates occasionally is of no interest. issues that, according to the territorial share of As referred to above, neither is it of interest to power, are a competence of both the Union and limit the participation of the regions to the defi- the regions, but the effectiveness of such systems nition of the initial negotiating position, which differs enormously. is very likely to vary while negotiating. The European Constitution project estab- For such reasons it was the intention to de- lished a model that distinguished among cat- fine and limit the ability of the central admin- egories of powers between the Union and the istrations to modify the negotiating positions member States: exclusive powers of the Un- adopted by regions. But due to the nature of the ion, shared powers between the Union and the process of decision making in the EU, although States, and actions of the Union for support, co- the scope for modification of negotiating posi- ordination or to complement the powers of the tions by central administrations was specifically member States. But the European Constitu- limited, it has not proved excessively difficult for tion project did not take into account the level central administrations to avoid such limitations of powers of the regions or the local authorities. citing “necessity” or “State interest”. Because of So member States are solely responsible for or- this, in addition to participation rights, rights of ganising the participation of the regions in the information and rights of representation grant- process of European negotiation. Such a partici- ed to the regions, it has usually been the case that

Report from the Åland Islands Peace Institute 3-2008 27 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

regional representatives are part of the State del- riculture, formally takes decisions on industry egation, so as to supervise the European nego- or energy matters which have previously been tiation on behalf of the regions. But in the case adopted. It should be noted that for the majority of the Spanish Self-Governing Communities no of the issues on the Council’s agenda there is no 32 guarantees have been established in relation to discussion within the Council. It is essentially the positions that they take amongst themselves within the COREPER that most of the deci- on European issues within their competence; sions are made. COREPER enjoys a more stable positions that will be the subject of subsequent composition than the meetings of the Council negotiation by the Central Administration and of Ministers. Members of the COREPER are most probably will be changed. members of each Member State’s Permanent In the European institutional structure, as well Representations, which are composed of an av- as the Council of Ministers, which continues to erage of about a hundred officials. They super- be the main decision-taking institution, the in- vise the negotiations on European affairs. Theo- creasing weight of the European Parliament is retically they represent a joint instrument of the also to be noted. As we have seen, the presence States and the European administrations, but of representatives of the regions in both institu- in practice, and due to their position in situ, and tions varies greatly. As we know, the composi- because of their knowledge of dossiers and the tion of the Parliament, in the absence of a uni- other negotiation agents, their autonomy dur- form electoral rule, depends upon the electoral ing the negotiation process is usually substan- system of every Member State. Some States only tial. The presence of regional representatives in admit one constituency for the entire State, as the Permanent Representations, in the CORE- Spain does, but others recognise regional con- PER and in the committees and work groups of stituencies. For example Belgium, which in ad- the Council is important for regional participa- dition to three regional constituencies: Flanders, tion, but it varies greatly among the Member 33 Wallonia and Brussels, has two electoral colleg- States. es: French-speaking and Dutch-speaking. In The presence of two councillors, representing Germany a single list for the whole country is the Self-Governing Communities in the Span- combined with regional lists by Länder; in Italy ish Permanent Representation in Brussels, will and more recently in France there are several su- undoubtedly favour the interests of the auton- pra-regional constituencies. In the United King- omies, due to the connection between the Per- dom, as well as a proportional system for North- manent Representations and the COREPER. ern Ireland there is a majority one for England, But, given that the size of the Spanish Perma- Scotland and Wales. Thus some members of the nent Representation is about 150 members, the European Parliament can - and some others effect of the incorporation of two new members cannot - claim to be regional representatives. must be nuancé. In relation to the Council of Ministers it should 2. Regional heterogeneity is an important feature be emphasised that most of the decisions for- of regionalisation that will develop further. Some mally adopted therein, are actually adopted by its Member States are regionalised and some others auxiliary bodies, like the Committee of Perma- are not, or only partially, regionalised. Among nent Representatives (COREPER) or by other those with institutionalised regions, some are committees and work groups of the Council. In federations: Austria, Belgium and Germany, fact, it frequently happens that a certain config- while others, like Italy and Spain, are completely uration of the Council of Ministers, e.g., for ag- regionalised, and others only partially regional-

28 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

ised; United Kingdom, Portugal or Finland. Fur- Mediterranean, on the Baltic etc.. Some are in ther, some States have autonomous or Self-Gov- the north of Europe and some in the south, some erning regions while others, e.g. France, do not in the centre and some are part of the west or east grant their regions the power to pass laws. of Europe. Geography is thus an important way If we analyse whether there has been histor- of grouping regions. So is financial autonomy as ical continuity among autonomous regions, we recognised in Navarre and the Basque Country, see that self-government has been characteris- the Val d’Aosta and the Åland Islands. tic of very few of them: the Hanseatic cities of Taking an economic classification, certain fac- Bremen and Hamburg, or the kingdoms of Ba- tors lead to the grouping of the richest regions: varia, Scotland and Navarre. But for many, au- Hamburg or Brussels, by GDP, income or pur- tonomy is a recent phenomenon: most of the chasing power, so as to distinguish them from Italian and Spanish regions or the German and the poorest: Extremadura, Calabria. According Austrian Länder do not have a tradition of self to population, some are very populous: North government. Rhein Westfalen, Île de France while others are With reference to the composition of the au- extremely sparsely populated: Åland, La Rioja. tonomous parliaments, regional heterogeneity is Regional heterogeneity is even more obvious important too. Only a few regional political par- when analysing regional competences. The au- ties have majorities in regional parliaments: Ba- tonomy of the German Länder is not equivalent varia, Basque Country, Catalonia, Navarre, Süd- to that of the Austrian Länder. The autonomy Tirol, Northern Ireland, Flanders, Wallonia and of the Italian and Spanish regions is not compa- 34 Brussels. In some other parliaments, regional rable to the Belgian regions or cultural commu- parties, though they may not hold an overall ma- nities. In addition, not all the Italian and Span- jority of the seats they do have a significant pres- ish regions have the same powers. Heterogeneity ence of between 20% and 1/3 of the seats: Scot- among autonomous regions is undoubtedly sig- land, Wales, Canary Islands, Veneto, Corsica, Val nificant and has no correspondence to the pow- d’Aosta. But in most of the regional parliaments, ers of the Committee of the Regions, where het- 35 regional parties either have no presence or an in- erogeneity among its members is even greater. significant one. 3. The recent incorporation of twelve new Another element relevant to regional hetero- countries into the EU has meant that regional geneity is the existence or otherwise of local cul- representatives have lost influence in the Com- tures, some of them even with their own lan- mittee of the Regions. Most of the new Mem- guages. This is an important feature for several ber States come from former communist dicta- regions: Catalonia, Basque Country, Wales, Süd- torships where centralisation of power, rather Tirol, Flandria, Åland. However uniqueness of than regionalisation, was a feature. Their incor- language is not a common feature for most re- poration has therefore brought no additional regions. gional representatives to the CoR. Regions were Another factor of regional heterogeneity re- simply not institutionalised, nor their autonomy lates to their geographical location. Thus some recognised. Besides, States like Malta or Cyprus regions have the characteristic of being islands: are too small to have a regional structure. As a Corsica, Sardinia, Sicily, the Balearics, Åland, result of all this, if to date real regional repre- the Azores, Madeira, the Canary Islands. While sentatives were a minority in the Committee of some regions are maritime, others are moun- the Regions, in the years to come their position tainous. Some are on the Atlantic, others on the will be even weaker. Nevertheless it is reasonable

Report from the Åland Islands Peace Institute 3-2008 29 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

to believe that new States will initiate a process in motion a process of promoting the reform of of regionalisation, though it will take some years. the autonomy statutes and the incorporation of As for the position of the autonomous regions new matters within regional powers. A previous in the Committee of the Regions, it is probable constitutional reform made new constitution- 37 that their marginalisation will reinforce their in- al limits more generous to regional autonomy. clination to form a block inside the CoR. It is to The process is still unconcluded, pending the re- be assumed that the increasing heterogeneity in the form of the Senate and the possible federalisa- composition of the Committee of the Regions will tion of Italy, a perspective that is supported as hamper its functioning. It will have to deal with fiercely by some (Padania) as it is strongly op- former communist administrations and with a posed by others. Union expanded towards new territories: the In Spain, a constitutional reform has not been Baltic, Central and Eastern Europe, as well as implemented, though a reform of the statutes for towards some Mediterranean islands. several Autonomies has started. However, some 4. It seems reasonable to expect that, in coming changes have been made with respect to the par- years, steps will be taken towards regionalisation in ticipation of all Self-Governing Communities many of the Member States. The management of in the European Union. On the one hand, cen- a market sized at hundreds of millions, in a vast tral government has started inviting representa- and varied geography, requires structures with tives of the bordering Self-Governing Commu- the capacity to assimilate diversity and to re- nities to the bilateral top meetings of Spain with spond competitively. The Jacobin model which France and Portugal. On the other hand, an ac- originated in France and which was later estab- cord has been signed with all regions to include lished in a large part of Europe is now an eight- them in the Council of Ministers’ meetings, and eenth century anachronism which holds no in- their preparatory sessions. In addition, two re- terest for the twenty-first. How can it be justified gional representatives have joined the Spanish that today the administration of France – the Permanent Representation before the EU. Rep- “departements”, and to a large extent the French resentatives of the Self-Governing Communi- regions too - is under the control of the minister ties will rotate every six months and will assume of the Home Office? This police-minded model the responsibility for reaching consensus with leads to the loss of credibility and distress. It also the interests of the autonomies. They will rep- brings the French administration closer to the resent them under the authority of the chief of more authoritarian models that are a character- the Spanish delegation in Brussels. This agree- istic of dictatorships. ment is 18 years late in coming, and surely will In recent years we are observing processes of need to be perfected during the next few years. deeper regionalisation in Italy, and most recently But the necessity of unanimous decision taking in Spain. Also, a frustrated attempt in England, among all regions is an important difficulty for where in a past referendum among the popu- the practical application of the accord. Also, the lation of the Northwest region based around periodic rotation among them is another diffi- Newcastle, a majority did not support a proc- culty because six months is a very short period 36 ess of mild regionalisation which would have in which to acquire the necessary knowledge to replicated in England the processes in Scotland deal with European affairs in Brussels. In ad- and Wales. English rejection of regionalisation dition, the intermittent presence of the regions seems to be perceived as a fear of bureaucracy. will impair their capacity for negotiation. How- In Italy the reforms of 1999 and 2001have set ever, the presence of the autonomies will bring

30 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

more control over the negotiation by the State it reasonable to expect increasing tensions be- and a better knowledge of the European admin- tween the Union and the regions. If it does not istration. It will require an effort by the autono- seem feasible and reasonable to involve both re- mous administrations to set up structures to co- gions and States in the making of Europe, nei- ordinate among themselves and also between ther does it seem desirable to construct Europe them and the central administration. by marginalising its regions. Such a cornering 5. The regional level could become an inner source could propel some of them towards ambitions of tension for the Union as well as for the member of Statehood. States. Several factors lead to the conclusion that Regions have important powers in some mem- the regional dimension will be the origin of en- ber States, but these States are a minority among dogenous conflicts within the Union’s frontiers, the 27 member States that nowadays comprise in some regions especially. On the one hand, as the Union. However a majority of the popula- we have seen, the European Convention forgot tion of the Union is governed by regional au- the regional dimension. The debate on regional thorities. So far the European integration proc- issues was reduced to a single setting in February ess has favoured the re-centralisation of power 2003. Except for a few references there is no trace within the regionalised States, even within those of the regions in the constitutional project, apart States that are federalised. Obviously, this re- from those dedicated to the Committee of the centralisation has not been free of tensions. For Regions, which as we know is not strictly a body instance, the constitutional reforms introduced for regional representation. Additionally, it has in Germany on the occasion of the ratification not been envisaged that in the future representa- of the Treaty of Union provided an opportunity tives of the regions will be invited to participate to make them public and highlighted the need in conventions or processes for treaty reform. In for changes.. So one could conclude that if the fact, the procedures in arts IV-443-444-445 of regions perceive that European reforms will be the constitutional project: Ordinary Revision used as a weapon against them or be used to pre- Procedure, Simplified Revision Procedure, and vent an evolution towards wider regionalisation, Simplified Revision Procedure concerning In- this could lead to moves to oppose the process of ternal Union Policies and Action, only contem- integration. It is also probable that regionalised plate the participation of executives and national member States will have to initiate constitution- parliaments. Only Belgium in a Declaration in- al reforms so to incorporate guarantees of infor- 38 corporated in the Final Act of the Conference mation, participation and representation rights recorded that, in Belgium’s interpretation, par- for the regions, as the regions will become grad- liaments of regional and community character ually more conscious of the effects of the inte- are, together with the federal parliament, part gration upon their autonomy. of the national parliamentary system. So, with To conclude, it is remarkable that while cen- that lonely exception, it seems that in the future tral powers have compensated for their loss of representatives of the regional parliaments will decision making power through participating continue to be excluded from participating in in decision making with other States within the the procedures to reform the European treaties. framework of the European Union, in contrast This, given what happened in the last European the self-governing regions have no mechanism Convention, and if there is no correction to the to compensate for their loss of power. The loss participants so as to include a representation of of regional power has served to return power to the interests of the regional parliaments, makes central administrations due to their quasi-mo-

Report from the Åland Islands Peace Institute 3-2008 31 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

nopoly of participation and representation rights as in my opinion is the case of the Self-Govern- in the European community structure. They are ing Communities in Spain, these changes will the greatest beneficiaries of the creation of a have to be amended later. It might be sufficient New Political Centre in Europe. Regional ad- for some regions to attend a few meetings of the ministrations have consented almost without re- Council of Ministers, but it may be insufficient sistance to be transformed from Self-Govern- for a number of other regions to limit their ac- ing or autonomous entities into administrations tivity in European institutions to a single day’s with executive character, based on the manage- show. They will probably demand more effi- ment and implementation of decisions in the ciency and professionalism of other regions and development of which they do not participate. of central administration. Thus, from inter-re- The regional politico-bureaucratic elites have gional relations some problems may also arise, kept European integration low down on the tensions that previously originated between re- agenda, limiting themselves to specific rhetori- gions and central administrations. If regions are cal demands. In fact when examining the par- involved in the government of the State, more liamentary activity of regional assemblies related transparency can be achieved in running Euro- to European matters it is notable that although pean affairs. Paradoxically, the maturity of the parliaments, and especially regional parliaments, autonomous system in Spain will come at the are the institutions most damaged by the trans- same time as significant changes due to the redi- fer of power to the European institutions, they rection of European funds that will have to leave have scarcely put aside any time and resources to the south of the peninsula and head for Eastern avoid being marginalised in their parliamentary Europe. A significant source of stress for Spain functions. With the exception of maybe a few, and Europe in coming years. like the Parliament of Catalonia, the weakness showed by the majority of regional parliaments Prospects for reform in Spain indicates the poor competence of the regional The pending federalisation of the Spanish State political class as well as its limited sensitivity to that President Zapatero seemed ready to em- European matters. Most of them have done lit- bark upon at the beginning of his term in office tle in the past years but organise sporadic events in 2004 has not been undertaken. The reform and casual conferences and happenings in which of the Senate, to convert it into a chamber in to waste in a few hours resources that could have which Self-Governing Communities could par- been invested in making them fit to handle Eu- ticipate in the management of the central power ropean issues. Evidently, central administrations of the State according to their competences and have observed this regional incompetence with public resources, has not even started. So far all incredulity and gratitude. Now regional admin- that has commenced is a statutory reform that istrations will have to work hard if they want to has been translated into new statutes of auton- connect effectively with the European making omy for Catalonia, Andalusia and Valencia. The process, and not simply be administrations for Spanish parliament aborted the process of a new 39 implementing European laws and collecting its statute of autonomy for the Basque Country funds. and the Galician government gave up a simi- Probably someday it will become clearer that lar initiative after the veto of the PP. Constitu- regional autonomy has degraded into an ad- tional limits have led to several objections to the ministrative function. This will require correct- Catalan nou statut in the Constitutional Court ing. But if these corrections are made wrongly, which are still unresolved. The main obstacles

32 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

to the changes have been the reluctant attitude stronger opposition from the centre. But admin- of the Spanish Popular party (PP) and the indo- istrative solutions, in the form of granting more lence of the socialists (PSOE). Both have pre- regional powers, do not resolve the question ferred to bring forward autonomic reforms rath- of national identity, which is particularly acute er than constitutional ones, so the scope of the in the Basque Country and in Catalonia. The reforms has been limited “ab initio”, impeding Westfalian model, according to which the State the transformation of the unitary nature of the has a right to impose upon the whole population Spanish State into a federal one. On the other subject to its dominion a single national confes- hand, the referenda on the reforms in Andalusia sion, as if it were a religion, does not seem to be and Catalonia have shown the lack of interest of the correct solution for a population with diverse the population, where less than half of the eligi- national identities. Some Basques, Catalans and ble electors voted. In fact, it is more and more ev- Galicians do not consider themselves Spaniards, ident that the gap between the political class and but another large part of the Catalan and Basque the citizenry is widening. The citizenry seems to populations do. So far Spain only recognises a have noticed that statutory reforms and the wid- single nationality for all citizens: Spanish. Cata- ening of regional competences is an opportunity lan and Basque nationalism seem to share that for professional politicians to extend their webs very Westfalian view: even though Spanish na- of patronage. Thus the regional, as well as the tionality is currently imposed upon all, in the fu- national, debates are accompanied by increasing ture - if possible - they will do just the same. All unreliability. will be Catalan or Basque. In my opinion, how- Although the functioning of the State has to ever, in the same way as through the Edict of accommodate the framework of the European Nantes freedom of religion was granted for eve- Union, the fact that in Spain there is no federal ry individual, one day a right of nationality will structure causes a serious inadequacy. Autono- be granted for every person according to his/her my or self-government makes sense if it is main- own will, thus preventing the prince – i.e. State tained within the European Union. But the Self- power - from imposing his national faith upon Governing Communities have been reduced to the individual. As for the political relationship the role of mere policy executors in matters over between power and individual, this should be es- which they have powers according to the laws, tablished on the basis of residence, all sharing a but in the development of which in practice they European citizenship. do not participate. Although the project of a new Satisfying the desire for identity recognition statute of autonomy in Catalonia made the rela- is one of the keystones of a globalising world tionship with the European integration process where the symbolic aspects of identity have a key, and received the backing of 90% of the Cat- substantial and increasing political worth. No- alan parliament, its content was severely reduced body wants to be identified as something that in Madrid’s Cortes and presumably will be fur- he or she does not recognise as his or her own. ther reduced by the Constitutional Court. Political powers should offer a means by which The future path for the structure of Span- citizens could express nationality according to ish autonomy is uncertain. The increasing dis- their feeling, instead of imposing certain na- credit of the political class, including at the re- tional views upon the entire population. Na- gional level, diminishes the possibility of claims tional minorities which have emerged recently for greater self-government, but it also could as a consequence of immigration also demand increase the radicalisation of demands, and an answer to match the needs of the twenty first

Report from the Åland Islands Peace Institute 3-2008 33 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

century, a time in which mobility makes identi- sition of Brussels as a third region, a reference ty a more valuable commodity, in contrast to the to Flanders, Belgium and the European Union, views of the nineteenth. An increasing number adds more complexity to the future of Belgium of the population will during their lifetime live as a State. in different States, while easily maintaining rela- In contrast, in the case of Spain the dominant 41 tions with their countries of origin, unlike nine- Spanish cultural community ignores all the rest. teenth century immigration when links with the The Spanish language has a pre-eminence in “old” countries of origin were broken because of the Iberian peninsula and a market of more than the difficulty of communication. The attitude of three hundred million speakers in America. The political powers regarding linguistic recognition question being asked today is whether in the fu- is also an element of particular relevance. The ture the direction of the hispanophonic market attitude of European institutions as well as that will be conducted from Madrid or from Ameri- of the Spanish central authorities, that have only ca. It does not seem likely that such a transatlan- given recognition to the Spanish language, re- tic perspective would increase the rights of the stricting other languages to a regional level or to peninsular minorities. It is more reasonable to the rank of institutional courtesy, leads to an un- expect that the hispanophonic community will avoidable cultural conflict. be reinforced through the economic and demo- The political and cultural conflicts that exist graphic influence coming from America. Thus in the Spanish State have no equivalent in oth- neither the present nor the future of the penin- 40 er parts of Europe. It is not the case in Austria sular minorities look very bright. or Germany where except for Bavaria no Land In any case, the situation and perspectives of resembles a Nation without Statehood. In the minorities vary. For instance, Catalan speakers case of Bavaria, where a regional party has, al- represent a majority in three Self-Governing most since WWII, won a majority of parliamen- Communities (Catalonia, the Balearics and Va- tary support in Munich, it should be taken into lencia), Catalan is also present in Aragón and in account that there is no competition between the French Roselló (Catalonia Nord) and it is CSU and CDU, and that the government of Ba- even the official language of a State (Andorra). varia has traditionally been represented in the Its demographic weight amounts to over 6 mil- federal government. A certain amount of time lion speakers, more than many other languages would have to elapse to find out whether a de- with official recognition in the European Union. tachment from federal power would have con- Catalonia economically represents about 25% sequences regarding Bavaria’s position towards of the Spanish GDP, but its political weight is the EU or Germany. It will take time too to un- much lesser. The Galician culture has a much derstand whether the Länder incorporated after smaller demographic and economic weight, but the fall of the Berlin Wall will manifest a po- being so close to the Portuguese-Brazilian lan- litical culture which cannot be assimilated by guage, has strong cultural allies and a market of the rest of the country. In the case of Belgium several hundreds of millions. On the other hand, the political situation is quite unique. The Bel- Basque culture is the most exposed. With a very gian State is maintained as a consequence of the small size of about a mere 5% in Spain, and even agreement between two cultural communities: smaller, not even 1%, in France, it has no other Dutch-speaking and French-speaking, which in resources but its own for surviving among cul- addition have two reference States of their own: tures that number hundreds of millions. Be- The Netherlands and France. The particular po- sides the hispanophone, one of the largest in the

34 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

world, the francophone culture brings together a hundred million in Europe, and is the of- The concept of European Region ficial language in Belgium and in Switzerland, and has another hundred million speakers in Linked to previous reflections one can consider Africa, as well as a presence in America (offi- the fact that until now the concept of region that cial language in both Quebec and Canada), and is dealt with here is a kind of region that is part in the Pacific. Globalisation will undoubtedly of a single member State. No step has yet been strengthen those links and increase the periph- taken towards the configuration of European re- eral situation of linguistic minorities (Catalan gions. However one can think about a regional and Basque among others) in France, which is dimension in Europe different from the one that today already dramatic. we have analysed in these pages (regions being In respect to the position of the Basque Coun- parts of member States). Though the concept of try in the European Union, it should be taken European region is still embryonic, it could be- into account that its location is far away from the come a solid and necessary step in the process of networks connecting to the center of the mar- continental integration. ket: the so called blue banana, or the axis that In the last 50 years Europe has tried to coun- connects London-Amsterdam-Brussels-Paris- ter the glorification of national characteristics, Frankfurt-Milan. For connection to the mar- which was long imposed - with dark conse- ket’s core, priority has been given to communi- quences - upon millions of Europeans. To pro- cation links via Madrid, Paris and Brussels, that mote commonality a process of European inte- is, through the Mediterranean and the Rhone gration has been promoted at a continental level valley. Thus, the connection with Portugal will over and above the model of the nation-State. be made via Madrid and from there through the The idea of European community links to what Mediterranean axis, via Valencia. Therefore, the we share in common with other Europeans in Basque Country is marginalised, in an economic spite of the – national - characteristics that di- space – the Atlantic and Pyrenean arc - which vide us. Maybe someday nationality - as religion is disconnected from the European centre and nowadays - will be a private affair, a personal do- from the connections that have priority links to minion and not a power granted to the prince. it. Evidently, the official offer is merely to link But there is a lot still to be done. European cit- to Madrid and Paris as a second level branch, izenship has been established but the nation- in order to fulfil technical and operational func- State still reigns. An ideology of nationality is tions, serving the groups and alliances clustered recognised in every State and imposed upon all around the aforementioned franco and hispano- of its residents instead of granting to every per- phonies. son a right to his or her own national persua- Maybe the example of Navarre, a European sion. If we consider increasing mobility and that State for almost a millennium, could be used a large number of people will live in different as a framework more relevant to the needs of countries for some periods of their lives, it seems a Basque nation, not to form another nation- reasonable that they will not have to transform State but to integrate with other populations themselves into e.g. German, Italian or Belgian, and communities in a sort of a European region, but that if desired could maintain Hungarian, a multicultural citizen space, more adequate to Mexican, or Japanese nationality. People have to the European characteristic of diversity. respect the rules of the State but should not nec- essarily be forced to embrace a nationality.

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The concept of the European region can help europolis. The European region, as the embodi- to direct the exercise of European citizenship ment of a trans-European space, could be one of towards fundamentals that are different from the aspects of integration more relevant for the 43 those promoted by national ideology. The Eu- coming decades. European regions could act ropean region can give European perspective to more freely than States which have ties of his- the condition of European citizenship. To date torical and self-interest linked to their national the European population is excessively con- characters. These constitute burdens and barri- cerned with national boundaries, lacking con- ers which are difficult to overcome. In contrast, nections and pan-European references. In gen- Euro-regions could be an easier framework to eral, cultural connections between Europeans mould, more directed towards the future than are weak. For instance, there is not a single jour- tied up by the past. 42 nal or European weekly publication. This absence of a periodical publication at a European scale seriously impedes the diffusion of a politi- Conclusions cal culture, from Helsinki to Bilbao, or from Pal- ermo to Edinburgh. It makes it clear that there is In their relation with the European Union the not yet an existing European public opinion. In role of the Self-Governing Communities has contrast, in Budapest, Lisbon, Warsaw or Vien- changed from being insignificant to being sym- na the receptiveness to American cultural prod- bolic. Before the accords of 2004 their partic- ucts is overwhelming. The European population ipation via CARCE ( the Spanish Sectorial is increasingly sharing a culture that is made Conference for European Affairs) in matters of according to American standards. This does European power proved to be ineffective. Af- not help Europeans to get to know each oth- ter the 2004 agreement, the regions have been er through European points of reference. Cul- granted access to the Spanish Permanent Rep- tural communication among Europeans is still resentation in Brussels (two members represent- something reserved for a very few. Only certain ing the autonomies out of more than 150 mem- events or European cultural creations reach be- bers), as well as a right to participate in meetings yond State frontiers; most remain firmly within - in four of the nine different configurations - the borders. of the Council of Ministers of the EU. How- The European region could become an instru- ever, their presence is more symbolic than prac- ment to interconnect different cultures within tical, due to the fact that the CARCE has not a European framework. Obviously, though not worked properly, and that the negotiating proc- exclusively, the development of transborder re- ess in the EU is based on permanent represen- lationships presents better prospects to those re- tation and package deals negotiated among gions to which these boundaries are closer than participants (connecting different matters, like to those more distanced from other European agricultural funds and energy policy). A sporad- cultures. Creating a European region in the case ic regional presence or limiting negotiation to an of the Basque Country could mean to link the isolated item is of no practical use. Besides, the francophone with the hispanophone, as well as taking of regional positions in the CARCE, for developing a space to protect the Basque cul- which unanimity is required, has proved to be ture. Anyway the flux of population and tech- very difficult to achieve, and opportunities for nological advances shows that even insular ter- central administrations to modify the regional ritories can attain the characteristics of a cultural position while negotiating with other member

36 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

States, very easy to come by. Finally, most of the influence regarding the future role of Self-Gov- Council of Ministers’ decisions are taken at the erning Communities in European matters. If COREPER (Committee of Permanent Repre- the Spanish Senate is transformed into a Cham- sentatives) anyway. Altogether the system has ber under the control of the regions and if it is resulted in a model of participation more theo- granted real powers in the government of the retical than anything else. State (and in the development of the positions Regarding their role in other institutions and of the State to be negotiated in Brussels), Euro- bodies of the EU, the position of the Self-Gov- pean prospects for the regions will change. Also, erning Communities has not changed from the if regions become more conscious of their Euro- previous situation. In the European Parliament, peanness and integrate the European dimension regions cannot claim to represent populations, in their institutions and policies, their European because regional constituencies are not recog- role would be reinforced. nized: Spain is a single constituency for elections Other factors favour regionalisation as well. to the EP. In respect to the European Commis- For instance most of the population of the EU sion, Self-Governing Communities continue to lives in territories with regional governments, have representatives on so me committees of the and the size and diversity of the European mar- Commission responsible for implementing Eu- ket supports regionalisation. In fact, after more ropean rules of a technical nature. than half a century the European Union now Regional participation is conducted main- constitutes a social framework for over 550 mil- ly through the Committee of the Regions but lion people. Such a scale is unprecedented. Only the peripheral position of the CoR in the Euro- India and China represent larger communities pean decision-making structure means its opin- in law. Like the planet, Europe too faces a huge ions are not particularly relevant. Further, in the challenge. Waiting for the future Intergovern- composition of the CoR, a majority of its mem- mental Conference to bring reforms to the trea- bers are not regional representatives, but repre- ties, it has already been agreed that certain in- sent other forms of sub-State entities. The het- stitutional rules will not come into force before 44 erogeneity of the Committee impedes its work 2016. However, whatever the circumstances as the powers of its members vary greatly. Europe will have to continue to consolidate it- As for the prospects for the regions, they are self as a European Community. And it is pre- related to several factors. One is the European cisely due to this will showed by States and pop- view on regions and their role in the market and ulations that the second half of the 20th century as a political structure. So far the regional ques- has been so different from the first half, when tion is mainly a matter of concern for member two monstrous world wars killed millions of Eu- States. Most of them are unitary and centralised ropeans. States, with the consequence that regional Self- However it will take time to integrate certain Governing in the EU is not a common feature, parts of Europe for which participation in the especially following the latest enlargement when process of integration has been delayed until re- a large number of States with no territorial dis- cently. While the EEC was in existence, more tribution of power have entered the Union. So than a hundred million Europeans were victims expectations for the 75 regions of autonomous of several dictatorships, of national catholic or nature will not be very bright in the coming communist nature, that lasted for several gen- years. But the expected reform of the Spanish erations after the second world war. Nowadays State into a federation would undoubtedly be of the prospects for new generations in Europe are

Report from the Åland Islands Peace Institute 3-2008 37 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

no doubt better than before, when religion, nationalism or communism reigned among Euro- Notes peans. Many transformations have been undertaken in Europe in recent decades and obviously 1 The use of Catalan, Galician or Basque in these are not yet complete. In fact, we still do the sittings of the Spanish Parliament (The Cortes) is not permitted. not know the impact of the recent enlargement, 2 For more on the differences between political and the consequences of being a community of conflict and violence in the Basque Coun- twenty-seven remain an enigma. try, see Bullain, Iñigo. “ Conflicto nacional On the one hand European society remains y violencia revolucionaria” and “ Dialectica embedded in State structures with many com- política” in El País (ed. País Vasco) from munication problems within Europe. On the 24/04/2007 and 09/06/2007 respectively. other hand, the nation-States, even the most 3 According to the Accords of December 2004 agreed between the central government and powerful, are increasingly perceived as too nar- the Self-Governing Communities, repre- row a space in which to confront the new cen- sentatives of the communities will participate tury. To overcome the model of the nation-State in some of the meetings of the Council of is an enormous challenge; the nation-States’ as- Ministers of the EU. In addition, two repre- pirations to monopolise the human space, al- sentatives of the communities will be includ- though in decline, have not yet given way to a ed in the Spanish Permanent Representation in Brussels. See in BOE (Boletin Oficial del European community of citizens. Estado) from 16/03/2005. The European region could be perceived as a 4 The Accord for institutionalising CARCE space for implementing Europeanness and for is from 29th October 1992, BOE 241 from developing European citizenship. We should 8/10/93. Internal regulation is in BOE 269 try to define co-existence in a European Com- from 10/11/1994, currently in force accord- munity through elements of Europeanness with ing to BOE from 8/8/1997. a view to surpassing national limitations. Al- 5 The Ministry for Public Administrations has recognised in several documents that the sys- though the Constitutional Treaty Project as well tem based on the Sectorial Conferences has as, presumably, the coming reform treaty derived not served to guarantee the participation of from a Intergovernmental Conference, will con- the Self-Governing Communities in Euro- tinue to visualise regions from the perspective pean affairs. See Bullain, Iñigo “ Autonomy of the member States, the construction of Eu- and the European Union” pp.343-356 in Su- rope can be helped and articulated through the ksi, Markku (ed.) Autonomy: Applications and Implications. Kluwer Law International development of European regions. They could 1998 express Europeanness through its diversity and 6 For instance, in the report published in Oc- variety in a way that States cannot because na- tober 2004 corresponding to year 2000, the tion-States are bound to structures and frame- report on the CARCE outlines the inad- works that are barriers to the process of integra- equacy of the Conference’s functioning. See tion. There are many States in Europe, yet no Roig, Eduard, p.508 en “La Conferencia para asuntos relacionados con la UE enel European States. Euro-regions could be loca- año 2000”, in Informe sobre Autonomías tions for Europeanness, a new combination for pp.503-519. European reality and symbology. 7 According to this system the central power demands unanimity from the regions, otherwise the central administration has no obligation to respond to the positions presented

38 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

by the regions. On the failure of the system ond half of 2007. of 1994, see Alberti Rovira, Enoch. “Las re- 15 Information on 2005 collected from Donaire giones en la nueva Unión Europea”. Autono- Villa, supra, op.cit. Euskadi has have repre- mies 29/2003, 177-206, especially p.187. sentation in 14 committees of the European 8 They are between 50 and 100 committees Commission. out of the total figure of about 350 commit- 16 Critical considerations in Eloisa Susa- tees of the European Commission with nor- eta Azcoitia. “Un año de participación de mative powers to implement European poli- las Comunidades Autónomas en el Con- cies. sejo de la Unión Europea. Europa/Euskadi 9 They are: Acuerdo sobre participación au- nº.189/2005, pp. 5-6. tonómica en las delegaciones españolas y Ac- 17 On the Bilateral Commission see Bullain, uerdo sobre la Consejería para Asuntos Au- Iñigo. “Autonomy and the European Union”, tonómicos en la Representación Permanente pp.343-356, in M. Suksi, op..cit. p.354, foot- de España ante la Unión Europea y sobre la note nº21. participación de las Comunidades Autóno- 18 For a complete record of these rulings see, mas en los Grupos de trabajo del Consejo de “La labor del Gobierno vasco dentro del la Unión, in BOE 16/03/2005. Comité de las Regiones. Balance annual”. 10 See Roig Molés, Eduard. “La Conferencia Anuario Acción Exterior de la CAV 2006 para asuntos relacionados con la Unión Eu- (in print). Eusko Jaurlaritza/Gobierno Vas- ropea en el año 2004. Informe Comunidades co. Presidencia. Secretaria general de Ac- Autónomas 2004, pp.602-623. ción Exterior. You may also consult previous 11 It should be taken into account too that ac- years of: Anuario sobre la acción exterior de cording to art. 203 of the Treaty of the Eu- Euskadi. Instituto Vasco de Administración ropean Union reformed in Maastricht, rep- Pública. This yearly is conducted by J.L. De resentation is now permitted in the Council Castro Ruano and A. Ugalde Zubiri. of Ministers of members other than central 19 As shown on p.10 of the Basque Govern- governments, as it was before according to ment report previously cited in note 18, of old article 145. However, the authorised rep- 282 amendments received by the Basque resentation will be on behalf of the Kingdom Country relative to rulings of the CoR, with of Spain. Direct representation of the Self- the exception of four submitted by the Åland governing Communities is not permitted. Islands and 52 submitted by ALDE par- 12 As is noted in the accords: “ what is estab- ties, all the rest were from other Spanish lished in the present Accord will be applied Self-Governing Communities; while of the without prejudicing the special provisions 148 amendments supported by the Basque flowing from the specific regime of integra- Country all related to Spanish Self-Govern- tion of the Canary islands, as well as from ing Communities with the exception of four the special communitary regime of Ceuta relating to the Åland Islands and 33 relat- and Melilla”. ing to ALDE (Alliance Democratique Eu- 13 See Francisco Javier Donaire Villa. “ La ropéen). Conferencia para asuntos relacionados con 20 Self-Governing Community parliaments las Comunidades Europeas en el año 2005. used to pass an average of about a dozen Informe Comunidades Autónomas 2005, pp. laws every year. In the previously quoted In- 634-666. forme sobre Comunidades Autónomas of 14 The Basque Country participated as co-ordi- year 2000, while Catalonia passed 23 laws - nator and representative of the Self-Govern- topping the ranking - Euskadi only passed 4, ing Communities in Health and Consumer Galicia 5, Andalusia 1. Canary Islands, Can- Affairs Councils in 2005 and in a Fisheries tabria and La Rioja passed 7 laws each. This Council in 2006. It is expected to participate same year the Spanish Senate passed 14 laws in Employment and Social Policy, Education and approved 50 international treaties. and Environment Councils during the sec-

Report from the Åland Islands Peace Institute 3-2008 39 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

21 See art.258 TEU. and 2006 other 14 on behalf of the Basque 22 In fact the pressure of the Länder upon the Country. Among those committees there federal government, due to the position that were issues like: gas machines; incineration Länder have in the Bundesrat (a right of ve- of dangerous materials; air quality or ecologi- toing the ratification of certain international cal labels. treaties), was what influenced the European 30 Art.65 out of a total number of 69 articles. Community to create the Committee of the The six sections of article 65 contain several Regions. The German government had the claims favouring participation and represen- support of Belgium which had by then com- tation rights of basque authorities in proc- pleted its federalisation. In Belgium the re- esses regarding elaboration and implementa- gions and cultural communities have an even tion of Community Law related to spanish stronger say . and european institutions. Section 6 consid- 23 According to the Nice reform, members of ers the basque autonomous community as a the CoR have to be elected locally or region- single constituency for european elections. ally, or they have to be politically responsible 31 Though The European Convention almost to an elected assembly. didn´t bring anything new directly related 24 That attitude has been publically reported by to the regions, it is relevant to mention that the presidency of the CoR. See Pellisé, Cris- the constitutional project collects in art.I-13 tina. “El Comité de las Regiones”, Informe a list of exclusive competences of the Union; anual sobre Comunidades Autónomas, Aja, in art.I-14, a list of shared competences of Eliseo (dir), 1999, pp.522-533. the Union with the Member States, and in 25 The Committee of the Regions asked the art.I-17, a list of the so called Union’s actions Intergovernmental Conference (from which of support, coordination and complement to the Nice reform arose) for the recognition of policies of the competence of the Member the active legitimacy of the CoR before the States. Court of Justice of Luxembourg. This initia- 32 There can be no other way due to the tive had the support of Belgium. See DOC number of issues and the lack of time for Confer. of 12th may 2000. a body which does not have a homogene- 26 In contrast, it is established in art.262 TEU ous composition nor any continuity over that the Economic and Social Committee time. Given that there are 27 delegations, if has to be mandatorily consulted. Such an ex- each delegation took 10 minutes to explain press obligation is not recorded for the Com- its position related to the “ordre de jour”, a mittee of the Regions. meeting started at 9 am would conclude ini- 27 The possibility to be consulted by the Euro- tial presentations by 1.30pm, four and a half pean Parliament is due to the reform of Am- hours later and without a single break during sterdam, and it is foreseen in art.265 TEU the whole morning. that an opinion of the CoR issued on its own 33 The three federal States have regional repre- initiative will be sent to the Council and the sentatives in their REPRES, but not the Ital- Commission together with a record of the ian regions and only since recently the Self- proceedings. Governing Communities. 28 See note 7. 34 Though in Belgium there are no Belgian 29 Vid., . Astola, Jasone. “ La actividad exterior parties. They dissolved at the end of the six- de la CAPV” in Revista Vasca de Admin- ties when the process of regionalisation start- istración Pública 68/2004, pp.45-75. “So- ed. bre la actividad exterior de Euskadi”, Castro 35 On regional issues and European-ness, see Ruano, Jose Luis y Ugalde Zubiri, Alex. La recently, Bullain, Iñigo. Regioak, Estatu-na- acción exterior del País Vasco (1980-2003), zioa eta Europear Estatua. Donostia: Hiria Oñati: IVAP 2004. Between 1997 and 2003 2006. there were 13 committees and between 2003 36 This negative result seems to have influenced

40 Report from the Åland Islands Peace Institute 3-2008 IÑIGO BULLAIN Role and Prospects of the Spanish Self-Governing Communities

the plans of the British government to ex- tion for Europe. tend the process of regionalisation to other areas of England. In fact the area around Newcastle is considered the zone with the most acknowledged regional personality. Its peculiarity expresses itself in a way of talking which is some distance from BBC English. 37 In the new terms of art.117 of the Italian constitution a distinction is made between exclusive competences of the State and con- current competences. A regulatory power has been established in favour of the regions in all those matters not subject to the exclusive competence of the “Stato”. Vid: Bifulco, Raffaele. Le Regioni. Il Mulino 2004. Vid. Aswell, Scarciglia, Roberto (cur). Unione Europea e autonomie regionali. Torino, Gi- appichelli editore 2003.. 38 Recorded in Declaration 49 of the Treaty by the Kingdom of Belgium on national Parlia- ments, a declaration noted by the Intergov- ernmental Conference. 39 Though a text of a new statute was approved by a majority of the Basque parliament, the Spanish congress decided in a plenary meeting not to admit it for discussion. The text lacked the support of both popular and socialist parties. 40 For instance the Spanish Congress has ve- toed the participation of regional teams in international competitions as Scotland, Wales, or Northern Ireland do. 41 In the past Catalan, Basque and Galician languages were proscribed from education. 42 For a few years, at the end of the eighties and the beginning of the nineties a weekly publication was edited in English in the form of a journal called “The European”. 43 As seems to be the belief of Catalonia which, in the company of the Balearics, Languedoc- Roussillon, Midi Pyrénees and Aragon, formally constituted a Euro-region in October of 2004. 44 The concessions favouring Poland can be in- terpreted as a prolongation of the 2009 date set in the projected constitution for Europe, which had already been fixed in the 34th Protocol related to transitory dispositions for institutions and bodies of the Union, annexed to the Treaty to establish a Constitu-

Report from the Åland Islands Peace Institute 3-2008 41 SÖREN SILVERSTRÖM Implementation of EU Legislation in the Åland Islands

Implementation of EU Legislation in the Åland Islands

Sören Silverström1

Introduction Commission is always the Member State although the alleged infringement may in his article addresses the topic of imple- practice only concern an autonomous enti- 3 mentation of EU legislation in the Åland ty. TIslands. It is not concerned with the decision- • The position of autonomous entities in making process leading up to the enactment of EU law is further determined by the prin- legislation. Implementation of EU legislation ciple of loyal cooperation under Article 10 EC 4 refers to various legal obligations applicable in Treaty. Autonomous entities can, for ex- relation to the Member State and the public ample, be obliged to disregard national authorities of that Member State. Usually the legislation which incorrectly implements term implementation is used in connection with a directive, and even to apply a directly ef- the transposition of EU directives but it some- fective provision of a directive to the ad- 5 times also refers more generally to the applica- vantage of a citizen. tion of EU legislation by public authorities of the Member States. Also the regional authorities of the Åland Is- Before proceeding to the main issue on the lands are subject to these general principles con- implementation of EU legislation in the Åland cerning the position of autonomous entities in Islands some remarks on the general relation- EU law. However, according to the EC Treaty ship between autonomous entities and EU law the treaty shall apply to Åland in accordance should be made. with the provisions set out in a protocol to the Finnish Act on Accession.6 This protocol con- • EU law is neutral towards the division of tains certain derogations from the application of 7 powers in the Member States. This is a mat- EU law in the Åland Islands. ter for national constitutional law.1 How- The preamble to the protocol on Åland states ever, in practice EU law has some central- that the treaties shall apply to Åland with cer- ising effects which does not usually favour tain derogations, which are justified with refer- the constitutional status of autonomous ence to the special status Åland enjoys under in- 8 entities.2 ternational law. The aim of the first derogation • The Member State is responsible towards is to uphold the restrictions associated with the the EU for the wrongful conduct of au- regional citizenship (right of domicile) of Åland. tonomous entities. The addressee of in- These restrictions concern the right to acquire fringement proceedings initiated by the and hold real estate as well as the right of estab-

42 Report from the Åland Islands Peace Institute 3-2008 SÖREN SILVERSTRÖM Implementation of EU Legislation in the Åland Islands

lishment and the right to provide services. The • Obligations under primary EU law. The second derogation is expressly aimed at main- founding treaties of the EU contain many taining a viable local economy in the islands. obligations which are of relevance to the The territory of Åland is excluded from the ap- Government of Åland and other Ålan- plication of the EC provisions concerning har- dic public authorities. For example, the monization of the laws of the member states on EC Treaty contains provisions on the four turnover taxes, excise duties and other forms of freedoms and competition law.9 Such obli- indirect taxation. This derogation ensures the gations apply directly for these authorities, continuation of tax-free sales on ferry traffic to in the sense that no national implement- and from Åland. ing legislation is necessary. Many of these These Ålandic derogations are exceptional in Treaty provisions have direct effect, so they the sense that there are very few territories which can be enforced in a national court. have been granted permanent derogations in the • Obligations arising from EU regulations EU primary legislation or the treaties on which and decisions. These obligations also ap- the EU is founded. However, the derogations are ply to the Government of Åland and oth- quite limited in a comparative perspective and er public authorities in the Åland Islands outside the scope of these derogations the Åland without any involvement of national im- Islands are fully subject to obligations emanat- plementing legislation. Implementation is ing from EU law. not even allowed. One example where the Government of Åland applies EU regulations is in connection with the Structural Different Forms of Funds. • Obligations arising from EU directives. Di- Implementation and Application of rectives must be implemented by national EU Law in the Ålands Islands law. In some Member States this implementation takes place on national level, EU legal obligations have many sources and whilst in other Member States it also takes come in many shapes. A striking difference be- place in an autonomous entity or feder- tween traditional international obligations and ated state.10 The implementation of direc- EU legislation is the domestic effect of these ob- tives within the legislative authority of the ligations. The primacy and direct effect of EU Åland Islands is the responsibility of the law make these legal norms far more effective Government of Åland and the Åland Par- than traditional international obligations. Every liament. public authority, even municipalities, has an ob- • Obligations based on case law and general ligation to apply and enforce directly effective principles of EU law. Many general prin- EU law. They are also obliged to set a side con- ciples of EU law have been and are con- flicting national legal norms. Autonomous enti- tinuosly developed by the European Court ties are often also required to implement EU law of Justice.11 These include for example the within their domestic field of competence. principle of proportionality and principle Here is a list of different EU legal obligations of effectiveness. that public authorities in the Åland Islands are subject to. The list is not exhaustive.

Report from the Åland Islands Peace Institute 3-2008 43 SÖREN SILVERSTRÖM Implementation of EU Legislation in the Åland Islands

Experiences From Implementation Government of Åland, shall prepare the positions of Finland within the framework of in- of EU Obligations fringement proceedings initiated by the Com- 12 in the Åland Islands mission. Recently a working group has proposed new guidelines which would give the Åland Is- The Autonomy Act lands a more prominent role in these infringe- The position of the Åland Islands in the EU ment proceedings. is primarily based on EU legislation. Earlier it In 2004 the Autonomy Act was amended with was mentioned that the Åland Protocol con- a provision on the State liability of Åland. Ac- tains some Ålandic derogations. However, many cording to this provision Åland is liable for a pe- questions concerning the basic features of au- cuniary sanction vis-à-vis the State if the ECJ tonomous entities in the EU is often regulated has rendered Finland liable to pay a fixed com- in national legislation on a constitutional lev- pensation, a conditional fine or some other com- el. The Autonomy Act of Åland was revised in parable pecuniary sanction, in so far as it has aris- 1995 when Finland joined the EU and a sepa- en from an act or omission on the part of Åland. rate Chapter 9a was included into the Auton- The State and Åland may seek a settlement re- 13 omy Act. This chapter was totally revised in garding the amount of the liability, ultimately in 14 2004. a national administrative court. It is clear that Chapter 9a defines the basic national frame- this provision concerning the liability of Åland work for the status of the Åland Islands in EU puts more pressure on the Ålandic authorities as affairs. The Autonomy Act explicitly states that the pecuniary sanctions can be very high in an the legislative power and the administrative Ålandic perspective. On the other hand, the lia- power is divided between Åland and the State bility of Åland for these sanctions makes it clear with regard to implementation of EU law. The that Åland should always have the right to de- Autonomy Act cannot be amended without the fence in these proceedings. consent of the Åland Parliament. From this follows that it is legally impossible for the State au- Implementation of EU directives thorities to implement EU legislation within in the Åland Islands Åland’s field of legislative competence. As im- It was earlier mentioned that the implementa- plementation and application of EU law with- tion of directives within the legislative author- in Åland’s legislative competence is the sole re- ity of the Åland Islands is the responsibility of sponsibility of the Ålandic authorities they are the Government of Åland and the Åland Par- in principle required to be aware of all relevant liament. The Autonomy Act contains exhaus- EU obligations mentioned earlier. tive lists of the legislative authority of Åland and The status of the Åland Islands in relation to the State. The legislative competence of the EU the European Court of Justice (ECJ) and the in- overlaps in many ways with the legislative au- fringement proceedings initiated by the Com- thority of Åland. It is also clear that a legislative mission are closely linked to the implementation measure on the EU level can touch upon both of EU obligations. The State is responsible for the competence of Åland and the State. infringements of EU law and represents also au- The Government of Åland notifies the Com- tonomous entities before the ECJ. The Autono- mission how EU directives are implement- my Act contains a provision according to which ed within the framework of Åland’s legislative the State authorities, in co-operation with the competence. In connection with the accession to

44 Report from the Åland Islands Peace Institute 3-2008 SÖREN SILVERSTRÖM Implementation of EU Legislation in the Åland Islands

the EU the Government of Åland notified over that Ålandic authorities could be obliged to ap- 1000 directives. The following statistics on no- ply EU directives which have not been imple- tifications in 2005 and 2006 show that a minor- mented correctly or within the prescribed time- ity of EU directives fall completely outside the limit.15 However, in practice this seems to be scope of Åland’s legislative competence. quite unusual.

2005 2006 Application of EU law in the Åland Islands State competence 27 24 Application of EU law is a much wider phenom- Åland’s competence 111 137 enon than the transposition of EU directives. EU law touches foremost upon issues between What is the reality behind these numbers? A public authorities and private persons, usually very large amount of the directives falling with- referred to as public law. This is clear from the in Åland’s competence concern agricultural and fact that the national administrative courts come environmental affairs. Many of the directives in touch with EU law much more often than in regulate highly technical issues (for example, a civil or criminal procedure. The Åland Islands chemicals and foodstuffs) and therefore the di- have very limited competences with regard to rectives are often implemented by way of refer- civil and criminal matters. Accordingly there is ring to the relevant State implementing legis- also a large body of EU law that falls within the lation. However, there are also many directives competence of Åland and is directly applicable requiring Ålandic legislation which are not sim- in the Government of Åland. ple copies of State legislation. Below is only an outline on different forms It is clear that the implementation of directives of application of EU law in the Government of consumes time and resources in a small bureauc- Åland. racy. Only eight civil servants are responsible for the drafting of legislation in the Government of • State aid. EU law on state aid is some- Åland. The workforce in Finland or even larg- thing that all public authorities with public er Member States is massive in comparison al- spending powers should be aware of. Rel- though the EU obligations are in principle the evant EU law is to be found both in pri- same for matters falling within Åland’s compe- mary law (EC Treaty, Article 87-88), EU tence. It should also be remembered that before regulations and commission guidelines and an Ålandic law implementing a directive can en- decisions. These rules are directly applied ter into force it has to be approved by the Presi- by the Government of Åland but they of- dent. This procedure can take up to four months ten give rise to questions about interpre- 16 and it is possible, for example, that the Pres- tation. Private parties have in some cases ident annuls the law in full or in part because made complaints to the Commission and the Åland Parliament has exceeded its legisla- state aid cases have also been brought to tive powers. national courts. It seems therefore inevitable that there is al- • Public procurement. There is sometimes a ways a risk that implementation will in some close connection between state aid rules cases lag behind the time-limits for transpos- and the rules concerning public procure- ing directives which leads to infringement pro- ment. However, public procurement is reg- ceedings initiated by the Commission. It is clear ulated by EU directives which are trans- from the case law of ECJ and national courts posed into national legislation. These rules

Report from the Åland Islands Peace Institute 3-2008 45 SÖREN SILVERSTRÖM Implementation of EU Legislation in the Åland Islands

are regularly applied by the Government of Justice is addressed to the Member State. Åland and there have also been some pro- The Åland Islands are quite often indirectly curement cases in the Supreme Adminis- subject to infringement proceedings. Almost all trative Court and the Market Court.17 of these proceedings are initiated because of late • EU Structural Funds. The Government of implementation of directives in the Åland Is- Åland is responsible for the administration lands. The pre-litigation procedure consists of a of structural funds programmes. Some of formal notice and a reasoned opinion. The fol- these programmes are wholly independ- lowing statistics show how many of the formal ent from the national programmes on the notices and reasoned opinions in 2005 and 2006 mainland. The Government of Åland ap- also concerned the Åland Islands. plies various EU regulations in connection with these programmes. Formal Reasoned notice opinion According to the Autonomy Act an appeal as to 2006 2005 2006 2005 the legality of a decision of the Government of Mainland 13 12 17 14 Åland may be brought to the Supreme Admin- Mainland 7 8 2 2 istrative Court. These court cases are remarkably and Åland few if one considers the amount of EU legisla- Åland - 1 - 5 tion applied in the Government of Åland. This Total 20 21 19 21 could maybe be seen as evidence that EU law is applied correctly in the Government of Åland, The statistics show that the main part of the but it could also be seen as evidence of some- pre-litigation proceedings concern the main- thing else. The President of the Finnish Su- land only. However, the picture is more com- preme Court said in a recent lecture that there is plicated when looking at the cases brought to too little knowledge of EU law and its legal im- the ECJ which only concern Åland. The Com- plications in single cases.18 This could also be an mission brought three actions against Finland in additional reason why there are so few Ålandic 2005 and four actions in 2006. The last few years court cases where EU law has been applied. A the trend has been such that Åland’s proportion- prerequisite for applying EU law is that there is al share of Finnish infringement proceedings is sufficient knowledge about the EU legal system significantly higher when the proceedings reach 19 and how it functions. Private persons, advocates, the ECJ. Is this something to worry about? It public authorities and courts have to bring this is so if it is a lasting trend because it could be knowledge into court cases so that EU law could evidence of trouble keeping up with the imple- have an effect on the outcome of the case. mentation of directives.On the other hand, in 2007 there has not yet been any cases in the ECJ Infringements of EU law concerning late implementation in the Åland Is- The Member State is responsible towards the EU lands. for the wrongful conduct of autonomous enti- In only two court cases the Government of ties. The addressee of infringement proceedings Åland has contested the Commission’s interpre- initated by the Commission is always the Mem- tation of EU law. Especially a judgment by the ber State although the alleged infringement may ECJ finding Finland in breach of EU law be- in practice only concern an autonomous entity. cause of spring hunting of birds has been con- 20 Also the judgment by the European Court of troversial in Åland. Another case concerns

46 Report from the Åland Islands Peace Institute 3-2008 SÖREN SILVERSTRÖM Implementation of EU Legislation in the Åland Islands

the non-implementation of a ban on the selling Conclusion of snus (moist snuff ) in Åland. The Commis- sion brought the case to the ECJ but Finland, To conclude, implementation and application of contrary to the position of the Government of EU law is a multifaceted and sometimes com- Åland, agreed with the Commission that there plicated phenomena. The article tries to give a was a breach of EU law. The ECJ delivered a brief description of the legal and practical reali- judgment in May 2006 stating that Finland had ties in the Åland Islands. A few points could be 21 breached EU law. The case sparked some con- summarized: troversy because the Ålanders were not granted a right to defence. • EU law is often applicable and a part of The ECJ can impose a lump sum or penal- the legal system as any other national legal ty payment on Finland if it finds that Finland, norm. In principle all public authorities in including the Åland Islands, has not complied the Åland Islands are responsible for hav- with its earlier judgment. The liability of Åland ing knowledge of the EU obligations ap- for these pecuniary sanctions is regulated in the plicable to them. Autonomy Act. The Commission has on 23 Oc- • Implementation of EU directives demands tober 2007 decided to bring an action against time, knowledge and resources. These de- Finland and proposes that Finland pays a lump mands are accentuated in relation to a very sum and penalty payment. The Commission small administration in the Åland Islands. proposes to ask the Court to impose on Finland • The implementation and application of a lump-sum fine of over 2.029.536 € and if Fin- EU law is an important responsibility for land fails to comply before the judgment, a daily the Ålandic authorities because state au- penalty payment of 19.828,8 €/day. The Com- thorities cannot implement EU law within mission’s opinion is that Åland has not correctly Ålandic competence. On the other hand, 22 implemented the ban on snus. the Member States are responsible towards the EU for the wrongful conduct of autonomies entities. State authorities must therefore take special account of the Åland Islands when Finland represents the Åland Islands in the EU.

Report from the Åland Islands Peace Institute 3-2008 47 SÖREN SILVERSTRÖM Implementation of EU Legislation in the Åland Islands

Bibliography: Institute for International Law, Working Paper No 7 - June 2001. visited on 31 July 2007. Communities in the Implementation of Eu- ropean Community Law in Spain’ 38 Interna- tional and Comparative Law Quarterly (1989), Notes pp. 74-103. Hannikainen and Horn (eds.), Autonomy and Demilitarisation in International Law: The 1 Acting Head of Unit for European Affairs, Åland Islands in a Changing Europe (Kluwer Government of Åland. Law International, The Hague 1997). 2 The European Court Justice (ECJ) stated Maiani, ‘Adressees, Councellors, Legislators: the following in case 97/81, Commission v. What Role for Regional and Local Authorities Netherlands, [1982] ECR 1819, para. 12: “It in the Union’s Decision-Making Procedures?’ in is true that each Member State is free to del- Pernice and Beneyto Pérez (eds.), The Govern- egate powers to its domestic authorities as it ment of Europe - Institutional Design for the considers fit and to implement the directive European Union (Nomos, Baden-Baden 2003). by means of measures adopted by regional Ross and Crespo, ‘The Effect of Devolution on and local authorities. That does not, however, the Implementation of European Community release it from the obligation to give effect Law in Spain and the United Kingdom’ 28 Eu- to the provisions of the directive by means of ropean Law Review (2003), pp. 210-230. national provisions of a binding nature.” Scarpulla, The Constitutional Framework for the 3 On the effects of EU law on the constitu- Autonomy of Åland: A Survey of the Status of tional status of autonomies, see for example, an Autonomous Region in the throes of Euro- Bullain, “Autonomy and the European Un- pean Integration (Meddelanden från Ålands ion” in Suksi (ed.), Autonomy: Applications högskola nr 14, Mariehamn 2002). and Implications (Kluwer Law Internation- al, Dordrecht 1998) or Weatherill and Ber- visited on 2 August 2007. nitz (eds.), The Role of Regions and Sub- Silverström, Åland in the European Union (Eu- National Actors in Europe (Hart Publishing, rope Information, Ministry for Foreign Affairs Oxford 2005). 2005). 4 See, for example, case C-297/95, Commis- visited on 9 ECR I-2821 and case C-365/97, Commis- November 2007. sion v. Italy, [1999] ECR, I-7773. These cas- Suksi (ed.), Autonomy: Applications and Impli- es concern the transposition of EU directives cations (Kluwer Law International, Dordrecht by sub-national autohorities. 1998). 5 On the principle of loyal cooperation, see van Nuffel, ‘What’s in a Member State? Central Temple Lang, “Developments, Issues, and and Decentralized Authorities before the Com- New Remedies – The Duties of National munity Courts’, 38:4 Common Market Law Authorities and Courts under Article 10 of Review (2001), pp. 871-901. the EC Treaty”, 27 Fordham Int’l L.J., 2004. Weatherill and Bernitz (eds.), The Role of Re- 6 See especially case 103/88 Fratelli Costanzo gions and Sub-National Actors in Europe [1989] ECR 1839. (Hart Publishing, Oxford 2005) 7 Protocol no.2 annexed to the Act concerning Wouters and De Smet, The Legal Position of the conditions of accession of the Kingdom Federal States and their Federated Entities in of Norway, the Republic of Austria, the Re- International Relations - The Case of Belgium, public of Finland and the Kingdom of Swe-

48 Report from the Åland Islands Peace Institute 3-2008 SÖREN SILVERSTRÖM Implementation of EU Legislation in the Åland Islands

den and the adjustments to the Treaties on & Loos v. Nederlandese Administratie der which the European Union is founded, pub- Belastungen [1963] ECR 1. lished 29 August 1994, Official Journal C 13 On the status of the Åland Islands in the 241. The text of the protocol can be found at European Union, see Jääskinen, “The Case . Visited my versus the European Union of States” in on 9 November 2007. Weatherill and Bernitz (eds.), The Role of 8 For an account of the accession negotiations Regions and Sub-National Actors in Europe and the status of the Åland Islands in the (Hart Publishing, Oxford 2005), pp. 89-102. European Union, see Fagerlund, ‘The Special 14 Act on the Autonomy of Åland (16 August Status of the Åland Islands in the Europe- 1991/1144). Later amended 31 December an Union’ in Hannikainen and Horn (eds.), 1994/1556, 12 July 1996/520, 28 January Autonomy and Demilitarisation in Interna- 2000/75 and 30 January 2004/68. tional Law: The Åland Islands in a Chang- 15 An unofficial translation can be found at ing Europe (Kluwer Law International, The . Visited on 9 November 9 For a historical background of the interna- 2007. tional status of Åland’s autonomy, see for 16 See the recent judgment by the Supreme example C. Scarpulla, The Constitutional Administrative Court concerning the ap- Framework for the Autonomy of Åland: A plication of the EU habitats directive in the Survey of the Status of an Autonomous Re- Åland Islands. Judgment of 7 September gion in the throes of European Integration 2007 (2273/nr 1895 and 1958/1/06). (Meddelanden från Ålands högskola nr 14, 17 The Government of Åland is sometime re- Mariehamn 2002). visited on 2 Au- Commission. See for example the Com- gust 2007. mission decision on investment aid to 10 On the application of the state aid rules in Mariehamns Bioenergi. visited on scheme implemented by Finland for Åland 9 November 2007. Islands captive insurance companies. Official 18 See, for example, judgment of the Mar- Journal L 329 , 5.12.2002, p. 22 - 29. ket Court of 10 September 2003 11 For a description on the implementation of (MAO:173/03). visited on 9 November and the United Kingdom), see Ross and Cre- 2007. spo, “The Effect of Devolution on the Im- 19 A reference to this lecture can be found at plementation of European Community Law visited on in Spain and the United Kingdom” 28 Euro- 9 November 2007. pean Law Review (2003), pp. 210-230 and 20 The ECJ has given judgment in seven cas- Aurrecoechea, “The Role of the Autono- es concerning late implementation of di- mous Communities in the Implementation rectives in the Åland Islands. C-292/03 (8 of European Community Law in Spain” 38 July 2004), C-327/04 (24 February 2005), International and Comparative Law Quar- C-107/05 (12 January 2006), C-159/06 (26 terly (1989), pp. 74-103. October 2006), C-152-154/06 (26 October 12 The case law on the primacy and direct effect 2006). of EU law is famous. See especially case 6/64 21 See case C-344/03, Commission v. Finland, Flaminio Costa v. E.N.E.L., [1964] ECR [2005] ECR I-11033. 1141 and case 26/62 N. V. Algemene Trans- 22 See case C-343/05, Commission v. Finland, port – en Expeditie Onderneming Van Gend judgment of May 18th 2006.

Report from the Åland Islands Peace Institute 3-2008 49 SÖREN SILVERSTRÖM Implementation of EU Legislation in the Åland Islands

23 See the Commission’s press release of 24 Oc- tober 2007. IP/07/1592. visited on 9 November 2007.

50 Report from the Åland Islands Peace Institute 3-2008 SUSANNE ERIKSSON The Role of the Åland Parliament in EU Matters

The role of the Åland Parliament in EU matters

Susanne Eriksson

he Åland Parliament is involved at three Thanks to Åland’s membership of CALRE, different levels with European Union (EU) accession to the EU has enabled to Åland Par- Tmatters. We work together with other EU re- liament to establish many new contacts at the gions with legislative powers in an organisa- European level. Even though the various re- tion called CALRE, the Conference of Europe- gions are very different in terms of population an Regional Legislative Assemblies. The Åland and other factors, the regions have a surprisingly Parliament is also involved because internation- large number of common interests. This became al treaties only become valid in respect of Åland very clear when the regions formulated their po- with the consent of the Parliament. Finally, the sitions towards the Constitutional Treaty. The Åland Parliament is involved in the implemen- regions wanted a stronger say in the EU and a tation of EU directives by the Government. clear recognition of the status of regions with To begin with, I would like to say a few words legislative powers. To date, the EU has dealt ex- about the work of CALRE. Up until the en- clusively with member states, regarding the re- largement of the EU in May 2005 a majority of gions as a purely internal national matter. In a the Union’s inhabitants lived in regions with leg- more concrete sense, the regions expressed the islative powers. The new member states had no wish that in elections to the European Parlia- regions with legislative powers, and this means ment regions with legislative powers should be that today we belong, as it were, to the minority respected when the countries form their constit- in the EU. There are regions with legislative as- uencies. The regions with legislative powers also semblies in countries such us Germany, Spain, wanted to have a say in the European Court of Belgium and, of course, the UK, Austria, Italy, Justice and more direct contacts with the Eu- Portugal and Finland. A meeting of the speak- ropean Commission. These positions towards ers of these assemblies is held annually, and there the Constitutional Treaty were more or less the is also a body called the Standing Committee, same as the positions of the Åland Parliament, consisting of one representative from each coun- and thanks to this inter-regional cooperation try. As Åland is the only region with legislative some improvements were also achieved, such as powers in Finland, we always have a seat in the the recognition of the regions contained in Arti- Standing Committee through our Speaker. This cle I-5 of the Constitutional Treaty. seminar deals with issues relating to Spain, and This leads me to the question of how the Par- I would therefore like to mention in this con- liament of Åland is involved in the process of text that as late as June this year a meeting of the ratification of international treaties. Under the Standing Committee was held here in Åland, Act on the Autonomy of Åland, legislative pow- and the President of the Basque Parliament was er is divided between the Parliament of Finland present. and the Parliament of Åland. Naturally, foreign

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policy and foreign relations belong to the com- cation state that such should be the case. petence of Finland, but this does not mean that When the negotiations had been concluded, Åland has no influence in international affairs. two separate referendums were held in Åland. In Under Section 59 of the Autonomy Act, the con- the first the voters were asked whether Finland sent of the Åland Parliament is required if Fin- should join the EU, and in the second, whether land has concluded a treaty with a foreign state Åland should join. At the time of the second ref- and that treaty contains a provision that con- erendum both Finland and Sweden had already flicts with the Autonomy Act or touches upon voted yes, and Åland had been granted certain areas that are subject to the authority of Åland derogations through the special protocol men- under the Autonomy Act. In practice, this hap- tioned above. The people of Åland voted yes in pens on ten to twenty occasions each year. The both referendums; in the first, by a slim major- President of Finland, acting through the Gover- ity and in the second by a considerably bigger nor of Åland, submits the treaties, or, more pre- majority. cisely, the laws implementing the treaties in Fin- The Åland Protocol contains certain deroga- land, for approval to the Parliament of Åland. In tions under which Åland has the right to stipu- most cases, the Åland Parliament has no reason late that only those persons possessing “right of to withhold such approval, but simply rubber- domicile” – a form of regional citizenship – in stamps the treaties. We do not, for instance, have Åland shall have the right to buy land or estab- a need to introduce any special rules in treaties lish a business in the region. The Protocol also concerning double taxation with Malaysia! defines Åland as a “third territory” in respect of However, when Finland started to negotiate all indirect taxation. This was the technical so- with other European countries on issues relat- lution arrived at to enable continued duty-free ing to European integration, first on the EEA sales on vessels sailing between Åland and Fin- treaty, then on EC membership and eventually land even after duty free was abolished in the on membership of the EU, Section 59 of the Au- EU in 1999. tonomy Act suddenly became very interesting Section 59 of the Autonomy Act remains from Åland’s point of view. As the consent of the highly relevant for Åland, as it implies that Åland Parliament was needed if Åland were to the consent of the Åland Parliament is needed join Finland as a member of the EU, Åland sud- whenever an EU treaty is amended. Thus, the denly found itself in quite a strong negotiating Constitutional Treaty was presented for approv- position. In the negotiations Åland’s representa- al to the Åland Parliament by the Finnish Pres- tives declared that Åland could join Finland as a ident. The Parliament actually declined to ap- member of the EU, but that there were certain prove the Constitutional Treaty as recently as ambitions that Åland wanted to realise in such September 2007, when it had already become a scenario. Åland’s wishes were accepted first by clear that the treaty never would take effect. At Helsinki and then by Brussels, or, I should say, least this was the official reason why the Parlia- the other member states. A special protocol re- ment voted no. lating to Åland was incorporated into Finland’s The consent of the Åland Parliament will also Treaty of Accession to the EU along with a spe- be required for the Reform Treaty that is likely cial “opt-in article”. Under this opt-in article, the to be placed before it this coming winter. The Treaty would only apply to Åland – i.e. Åland Constitutional Treaty contained no opt-in arti- would only join Finland as a member of the EU cle for Åland and the same is true of the Re- – if the Finnish Government notified the ratifi- form Treaty. The absence of an opt-in article in

52 Report from the Åland Islands Peace Institute 3-2008 SUSANNE ERIKSSON The Role of the Åland Parliament in EU Matters

the Constitutional Treaty meant, hypothetically, als from the European Commission and other that if the Treaty had entered into force without EU bodies, and the Autonomy Act lays down a the consent of the Åland Parliament, this could set of procedures for how such matters should be have created constitutional problems for Fin- handled. What happened when Åland became land with respect to the ratification of the Treaty. a member of the EU was that certain matters And, in fact, Finland never sent the ratification which Åland could previously decide for itself instrument for the Constitutional Treaty to the were now transferred to the European bodies. Italian Government precisely because the con- Today, Åland’s path of influence in those areas sent of the Åland Parliament had not been ob- goes via Helsinki. The Åland Government has a tained. right to present its position to the Finnish Gov- In this respect the situation concerning the ernment in Helsinki, but it is up to the Finnish Reform Treaty is the same as with the Consti- Government whether to take account of Åland’s tutional Treaty, because, as I said, this treaty con- wishes or not. To some extent, the Åland Gov- tains no opt-in article for Åland. This means ernment is also able to submit its opinion directly that Finland will face a problem ratifying the to the European bodies. The specific provisions Reform Treaty, too. governing this avenue of influence are contained Yet there is an interesting difference between in Chapter 9a of the Autonomy Act, which can the Constitutional Treaty and the Reform Trea- be found at the website of the Åland Parlia- ty in that the former would supersede the exist- ment, www.lagtinget.ax. In theory, the arrange- ing treaties while the latter is simply an amendments are relatively satisfactory, but in practice ment or addition to the existing treaties. This they give rise to problems, as the drafting of EU means that had the Åland Parliament voted to matters in the Finnish Government is done in withhold its consent to the Constitutional Trea- Finnish. Civil servants in Åland have no need to ty, it would in effect have withheld its consent know Finnish, as Swedish is the sole official lan- to all of the existing treaties. A no vote from the guage in Åland. This makes it very hard for the Åland Parliament to the Reform Treaty, on the Government of Åland to take part in this draft- other hand, would only have meant Åland de- ing work. This is seen as a big problem, which clined to bind itself by those amendments which will most likely be addressed when the Reform the Reform Treaty adds to the existing treaties. Treaty is brought before the Åland Parliament. Such a situation would of course necessitate ne- There are also rules governing how the Åland gotiations between Finland and the other mem- Government should consult with the Åland Par- ber states, and nobody can say today what the liament in these matters. The rules are more or result of those negotiations would be. In other less the same as those governing the consultation words, we cannot say at present what a no vote procedure between the national government and from Åland would lead to. parliament, and, as you may be aware, Finland Now I would like to address the third way in is widely regarded as being the country where which our parliament is involved in EU mat- the parliament is most involved in EU matters. ters. As I said at the beginning, the Åland Par- In Åland the consultation process has not yet liament also deals with EU matters at the level achieved a satisfactory form, and the Åland Par- of secondary law. The EU is a framework for co- liament has repeatedly stressed that the Åland operation among governments, and this applies Government needs to ensure that EU matters also in the case of Åland. The Government of become an integral part of the day-to-day work Åland receives and forms a position on propos- of the Åland Parliament. In other words, there is

Report from the Åland Islands Peace Institute 3-2008 53 SUSANNE ERIKSSON The Role of the Åland Parliament in EU Matters

still some way to go. To sum up: EU membership has led to much wider involvement in international matters on the part of the Åland Parliament, and Åland’s accession to the EU has resulted in a new kind of international cooperation through CALRE. The treaties that the Åland Parliament is now required to address has both increased in number and become more interesting as a result of membership, and Åland is now also to some extent involved in secondary EU law. Åland’s politicians say the region’s opportunities to exert influence in EU matters are unsatisfactory, and it will therefore be very interesting to see what decision the Åland Parliament takes on the Re- form Treaty this coming winter.

54 Report from the Åland Islands Peace Institute 3-2008 ROGER NORDLUND The Challenges of Developing the Ålandic Autonomy

The Challenges of Developing the Ålandic Autonomy in the Shadow of the EU. Opportunities and Setbacks.

Roger Nordlund

his morning I read in the newspapers that reasons instead. Ålandic wine grapes are a threat against Finland’s Prime Minister Matti Vanhanen Tthe EU’s farm subsidies to Finland. So it’s not made a last effort at the EU summit in Lisbon a very happy day for me. But on the other hand, on 22nd October, 2007. At the summit, he ex- I’m now also resigning as the head of Govern- plained that Åland has its own parliament and ment. that the new EU Treaty also must be approved Åland should have its own seat in the Europe- by the Parliament of Åland, and that Åland an Parliament. Since 1993-1994, we have been therefore should be granted one seat in the Par- working very hard for this, and all parties on liament. You know the result. Italy is a bit bigger Åland agree that this is important. than Finland, so they got an extra seat. Despite In 2006, The Parliament of Åland made a pro- this, we are going to continue our work for a seat posal to the Finnish Parliament, asking for one in the European Parliament. seat in the European Parliament. The propos- Åland has the right to speak in front of the al wasn’t approved, of course, but the Constitu- European Court of Justice. This right is becom- tional Law Committee discussed the proposal ing more and more important, as most recent and came to the conclusion that Åland actually developments show. The case of “snuff ” is a very should have one seat. But the problem is that the good (or bad) example. population of Åland is too small. In the beginning of this case, Finland and We do not agree with that argument. Fin- Åland had different opinions. Åland defended land has two parliaments, one in Helsinki and its right to sell snuff on the islands and on fer- one in Mariehamn. As long as there are at least ries, but Finland wanted to comply with the EU two seats for Finland, Åland should have one. directive directly. We had different opinions, but This is the opinion on Åland. We managed to Finland was speaking for our view, and that’s convince the Finnish Government as well, and fine. when Finland lost two seats, the Government Finland supported us, but it was too late, so tried to get back one seat with the argument that now we stand in front of the European Court Åland should have its own seat because Åland of Justice. Therefore it’s really important that we has a parliament of its own. now have the right to express our own opinion Unfortunately, the Finnish MPs had another directly in front of the Court. view. They argued for extra seats for their own The biggest problem is not that the Ålanders

Report from the Åland Islands Peace Institute 3-2008 55 ROGER NORDLUND The Challenges of Developing the Ålandic Autonomy

miss the snuff very much. Snuff it is an impor- to be taken up for consideration, because then tant product for the shipping companies. Some we can influence important issues before it’s too of the ferries between Åland and Sweden are un- late, before they reach the higher level. der the Swedish flag and some under the Finn- The EU represents large scale solutions, while ish flag. Now, only ferries under the Swedish flag Åland is a perfect example of small scale solu- are allowed to sell snuff. tions. This means that it’s difficult for Åland It’s a big problem if Swedes who want to buy to fit into the big EU programs. Sometimes, snuff choose to travel only with ferries under the the administration and bureaucracy cost more Swedish flag. We are now facing a threat against than what they are worth. This is a problem for our ferries, which can result in ferry companies Åland. moving to Sweden. Then, also a lot of jobs and The state aid policy is also a problem for us. tax income would disappear from Åland to Swe- We do not have the right to decide about tax- den. We are going to fight for the snuff and for es, so instead we use subsidies to keep the coun- our rights. tryside and archipelago alive. But many of these When we entered the EU, I voted yes. We subsidies are now forbidden, because they are had two referendums. One in Finland and one categorized as state aid. on Åland. I voted yes for several reasons. One Åland has a dispersed archipelago communi- reason was that I thought that the Swedish lan- ty where people live all year round. Every com- guage on Åland would be better secured and munity needs at least a school, a shop and good that we would enjoy a more Swedish and Euro- communications. We have to guarantee these pean environment. On the grassroots level this basic functions. Now, suddenly, for example, is true. subsidies to the local shops are seen as state aid. But when it comes to the administrative level, This is difficult to understand. we have moved even closer to the Finnish ad- The Åland Protocol and the tax derogation is ministration. Our road to Brussels goes via Hel- of great value for Åland. It was very important sinki. Contact with Helsinki has increased tre- for us to have the possibility to maintain tax free mendously since we entered the EU. sales on board the ferries. Otherwise it would Today it’s very difficult for the state authori- have been a catastrophe, if the tax free would ties in Helsinki to live up to the autonomy act, have disappeared overnight. This means a lot to which states that the language of communica- the Åland society and to our welfare. tion between Ålandic and Finnish authorities But the tax derogation also brought a so called should be Swedish. customs border around Åland, which makes it The working language of ministries and work- difficult for Ålandic companies to do business ing groups in Helsinki is Finnish. When the with customers and companies outside Åland. Government of Åland employs people, there is We have tried to make it easier even if we have no requirement of Finnish language skills. But not yet reached the perfect result. This third on the other hand, we cannot do our job in Hel- country position also gives new possibilities. sinki exclusively in Swedish. We need to find a More competence within the tax field would solution to this problem, because Helsinki can give us the possibility to have different tax lev- be an obstacle when we try to get more influence els here. at higher levels. The benefits from the tax derogation has been We should also work more from the ground, very big for the shipping sector. It will become and try to influence the preparation of matters less important in the future, but on the other

56 Report from the Åland Islands Peace Institute 3-2008 ROGER NORDLUND The Challenges of Developing the Ålandic Autonomy

hand, much more important for land based busi- nesses, especially the service sector. Therefore we have to keep the tax derogation, even if it causes problems for some companies. I will finish in a more positive way than I started. According to the programme of this seminar I’m going to talk about the “challenges of developing the Åland Islands in the shadow of the EU – opportunities and setbacks”. It’s always easier to talk about setbacks. But, when we talk about the EU in 5 or 10 years, I hope it could be “in the sunshine of EU” and not “in the shadow”. The economy of Åland has been very prosper- ous since we joined the EU. We have no unem- ployment, we have a balanced budget, and people are moving to Åland. Åland has become a much more international society during the last ten to fifteen years. The internationalisation is a key factor for the development of our society.

Report from the Åland Islands Peace Institute 3-2008 57 REPORT FROM THE ÅLAND ISLANDS PEACE INSTITUTE

Report from the Åland Islands Peace Institute

The Åland Islands Peace Institute conducts projects and research into peace and conflict issues in a broadly defined sense from the vantage-point of Åland and the special status that Åland enjoys under international law. It focuses on autonomies, minorities, demilitarisation and conflict management. The Åland Islands Peace Institute has consultative status with the UN Economic and Social Council, ECOSOC.

The Peace Institute’s researchers and guest researchers focus on three subject areas: • Security • Autonomy, including the “Åland Example” • Minorities

The Institute regularly publishes books and reports RAPPORT FRÅN ÅLANDS FREDSINSTITUT in these areas. By arranging seminars and confer- REPORT FROM THE ÅLAND ISLANDS PEACE INSTITUTE ences and through a growing library that is open to No. 1-2007 the public, the Institute serves as a meeting-point Gibraltar, Jerusalem, Kaliningrad: for Åland, the Nordic countries and the Baltic Sea Peripherality, Marginality, Hybridity region. Christopher S. Browning & Pertti Joenniemi Autonomy and conflict management seminars ISBN 978-952-5265-22-4 (Print) ISBN 978-952-5265-23-1 (Online) are arranged with groups from conflict-ridden regions around the world. No. 2-2007 Immigrant Integration on Åland – an exploratory study RAPPORT FRÅN ÅLANDS FREDSINSTITUT Bogdan Sate REPORT FROM THE ÅLAND ISLANDS PEACE INSTITUTE ISBN 978-952-5265-24-8 (Print) ISBN 978-952-5265-25-5 (Online) Nr 3-2008 Constitutions, Autonomies and the EU Nr 1-2008 Sia Spiliopoulou Åkermark (ed.), Eduardo J. Samernas rätt till deltagande i miljöfrågor Ruiz Vieytez, Iñigo Bullain, Sören Silverström, Petra Granholm Susanne Eriksson, Roger Nordlund ISBN 978-952-5265-26-2 (Tryckt) ISBN 978-952-5265-27-9 (Online) Pubished by the Åland Islands Peace Institute PB 85, AX-22101 Mariehamn, Åland, Finland Nr 2-2008 [email protected] www.peace.ax Ålandsprotokollet och EG-rättens icke-diskrimineringsprincip ISSN 1797-1845 (Print) Anna-Lena Sjölund ISSN 1797-1853 (Online) ISBN 978-5265-28-6 (Tryckt) ISBN 978-952-5265-30-9 (Print) ISBN 978-5265-29-3 (Online) ISBN 978-952-5265-31-6 (Online) The reports can be downloaded from www. ISBN 978-952-5265-30-9 peace.ax or ordered (10 euro incl. postage) from the Åland Islands peace Institute, PB 85, AX-22101 Mariehamn, Åland, Finland, phone +358 18 15570, fax +358 18 21026 [email protected]

No. 3-2008