4. Assessing the Spanish State’s Response to Catalan Independence: The Application of Federal Coercion

A statute of autonomy is the ‘basic institutional rule’ (Article 147.1 of the Constitution) of an autonomous community, in which the assumption of legislative and executive powers by the regional institutions is established. As part of the state legal system—they are organic acts (Article 147.3 of the Constitution)—, statutes of autonomy are subordinate to the Constitution. The amendment of a statute of autonomy requires both the approval from the regional legislature and from the central Parliament.

It is significant to note that the territorial constitution was not defined in the text adopted in 1978, as Pérez-Royo has pointed out (2018, 215). On the contrary, the territorial constitution was established by means of the statutes of autonomy. In the Constitution there is a ‘constituent commitment (…) by which the right to autonomy of the nationalities and regions of which it [the state] is composed [as enshrined in Article 2 of the Constitution] is recognised. [However], that commitment had still to be developed. Just after the Constitution came into effect, between 1979 and 1981, the first Autonomic Agreements were signed and the organisation of the state was set up within the scope and limits determined by the Constitution.’ In Pérez-Royo’s opinion, Autonomic Agreements had a constituent nature only from a material point of view, but not from a formal one. That is the central reason why ‘the legitimacy of origin of the State of the Autonomies is weak. (…) During the first three decades of its existence, this lack of legitimacy of origin was compensated for by its strong legitimacy of exercise, particularly because those matters closely connected with the welfare state (health and education) fell within the Autonomous Communities’ remit (…). Economic crisis in 2008 led also to a crisis of the welfare state, which negatively affected the State of the Autonomies. As the legitimacy of exercise had weakened, the absence of a legitimacy of origin suddenly emerged, which seriously reduced chances of finding a solution to the constitutional problems that confront Spain at the moment’ (2018, 215–216).

In fact, changes were introduced by the Constitutional Commission in the Congress of Deputies. Once the bill had been approved by the majority of deputies (those belonging to the Partido Socialista Obrero Español, Convergència i Unió, Iniciativa per Catalunya Verds, Izquierda Unida, Partido Nationalista Vasco, Coalición Canaria, and Bloque Nacionalista Galego), the Senate passed it with no modifications. It is interesting to note that amendments were so significant that Esquerra Republicana de Catalunya, one of the political parties that had led the initiative to amend the Statute of Autonomy in the Catalan legislature, finally voted down the bill in the Congress of Deputies and campaigned for a no vote in the referendum. This party argued that the text passed in Catalonia had been denaturalised.

Organic Act 6/2006, July 19, on the reform of the Statute of Autonomy of Catalonia. English version available at: https://​web.​gencat.​cat/​en/​generalitat/​estatut/​estatut2006/​.

The Partido Popular had previously appealed the decision adopted by the Mesa (Bureau)—the Mesa is ‘a collective body, which includes the President and representatives of various political groups, that organises the parliamentary affairs from an administrative point of view’ (Ferreres 2013, 105)—in the Congress by which the proposal of reforming the Statute of Autonomy of Catalonia was accepted for consideration. The Partido Popular argued that the proposal was in fact an attempt to reform the Constitution covertly. The argument was rejected by the Constitutional Court Auto 85/2006, March 15 (available at: http://​hj.​tribunalconstitu​cional.​es/​eu/​Resolucion/​Show/​20719).

Constitutional Court Judgment (CCJ for short) 31/2010, June 28. English version available at: https://​www.​tribunalconstitu​cional.​es/​ResolucionesTrad​ucidas/​31-2010,%20​of%20​June%20​28.​pdf.

As Pérez-Royo has remarked, the CCJ 31/2010 broke the territorial compact that was at the basis of the Constitution (2011). According to the territorial Constitution, the referendum was the final step for the reform of the statute of autonomy; nonetheless, once the Constitutional Court altered that procedure, the referendum became the first step of a new process in which the relationship between Catalonia and the rest of Spain would be redefined. That is why the so-called right to decide—an individual right, aimed to call a referendum and founded on the state legal framework (the Constitution, where freedom of speech and the right to political participation are recognised, and the CCJ 42/2014, March 25)—is now a sine qua non for many people in Catalonia, even for those who are not in favour of independence. For an extensive analysis of the right to decide, see Barceló et al. (2015).

Available at: https://​file.​lavanguardia.​com/​ext1/​file01/​2012/​12/​18/​54356471159-url.​pdf.

Journal of Sessions of the Congress of Deputies no 192, April 8, 2014 (available at: http://​www.​congreso.​es/​public_​oficiales/​L10/​CONG/​DS/​PL/​DSCD-10-PL-192.​PDF).

Act 10/2014, September 26, of non-referendum popular consultations and other forms of citizen participation, passed by the Catalan Parliament (available at: https://​www.​boe.​es/​diario_​boe/​txt.​php?​id=​BOE-A-2015-2743).

Decree 129/2014, September 27, for the call of a popular consultation on the political future of Catalonia, enacted by the President of the Catalan Government (available at: https://​portaljuridic.​gencat.​cat/​eli/​es-ct/​d/​2014/​09/​27/​129).

Official data are available at: http://​www.​participa2014.​cat/​resultats/​dades/​es/​escr-tot.​html.

The alliance Junts pel Sí and Candidatura d’Unitat Popular-Crida Constituent obtained 72 seats out of 135, but only the 47.8% of votes.

Resolution 1/XI of the Catalan Parliament on the beginning of the political process in Catalonia as a consequence of the electoral results on September 27, 2015 (available at: http://​www.​parlament.​cat/​document/​activitat/​153122.​pdf).

Act 19/2017, September 6, on the referendum of self-determination (English version available at: http://​exteriors.​gencat.​cat/​web/​.​content/​00_​ACTUALITAT/​notes_​context/​Law-19_​2017-on-the-Referendum-on-Self-determination.​pdf). It was declared unconstitutional on October 17, 2017 by the CCJ 114/2017 (English version available at: https://​www.​tribunalconstitu​cional.​es/​ResolucionesTrad​ucidas/​Ley%20​referendum%20​ENGLISH.​pdf).

Act 20/2017, September 8, on the juridical transition and founding of the Republic (English version available at: http://​exteriors.​gencat.​cat/​web/​.​content/​00_​ACTUALITAT/​notes_​context/​Law-20_​2017-on-Juridical-Transition.​pdf). The Constitutional Court outlawed it by the CCJ 124/2017, November 8 (English version available at: https://​www.​tribunalconstitu​cional.​es/​ResolucionesTrad​ucidas/​Ley%20​transitoriedad%20​ENGLISH.​pdf).

Official data are available at: https://​estaticos.​elperiodico.​com/​resources/​pdf/​4/​3/​1507302086634.​pdf?​_​ga=​2.​177408613.​1521946470.​1566584123-414068493.​1566584122.

Article 4.4 of the Act on the referendum stated: ‘If the count of votes validly cast gives a result of more affirmative than negative votes, this shall mean the independence of Catalonia. To this end, the Parliament of Catalonia shall, within two days of the proclamation of the results by the Electoral Commission, hold an ordinary session to issue the formal declaration of independence of Catalonia and its effects and resolve upon the commencement of the constituent process.’

English version available at: http://​www.​cataloniavotes.​eu/​wp-content/​uploads/​2017/​10/​27-Declaration-of-Independence.​pdf. Puigdemont’s speech can be read here: http://​exteriors.​gencat.​cat/​ca/​ambits-dactuacio/​afers_​exteriors/​delegacions_​govern/​franca/​actualitat/​noticia/​Compareixenca-MHP-Parlament.

The distribution of powers between the central state and the autonomous communities is established in Articles 148–149 of the Constitution. Each autonomous community can include in its respective statute of autonomy the particular competences it is going to exercise provided that Articles 148–149 of the Constitution are respected. Most autonomous communities have actually assumed the maximum level of powers available.

Article 155 is a provision directly inspired by Article 37 of the German Constitution. Article 37 of the German Constitution reads: ‘(1) If a Land fails to comply with its obligations under this Basic Law or other federal laws, the Federal Government, with the consent of the Bundesrat, may take the necessary steps to compel the Land to comply with its duties. (2) For the purpose of implementing such coercive measures, the Federal Government or its representative shall have the right to issue instructions to all Länder and their authorities.’ In fact the German influence was explicitly mentioned during the elaboration of the Spanish Constitution. Pérez-Llorca, deputy of Unión de Centro Democrático (the party in office at that time) in the constituent period of sessions, expressly admitted that Article 155 ‘is a quasi literal translation of a provision of the Constitution of the Federal Republic of Germany’ (Journal of Sessions of the Congress of Deputies, no 91, June 16, 1978, p. 3416—available at: http://​www.​congreso.​es/​public_​oficiales/​L0/​CONG/​DS/​C_​1978_​091.​PDF). Most scholars agree on the similarities between both provisions (for instance, García-Torres 1984; Ballart 1987; Gil-Robles 1999; Fernández-Rodera 2003; Vírgala 2005; Ridao 2018; Lafuente 2018; Albertí 2018). In Vírgala’s words, ‘the Spanish model (…) can be included, with certain differences [divergences that are put forward in his article], in the model of the German federal execution’ (2005, 59).

The procedure to implement Article 155 is developed in Article 189 of the Standing Orders of the Senate (Texto Refundido del Reglamento del Senado aprobado por la Mesa del Senado, oída la Junta de Portavoces, on May 3, 1994). English version available at: http://​www.​senado.​es/​web/​conocersenado/​normas/​reglamentootrasn​ormassenado/​detallesreglamen​tosenado/​index.​html?​lang=​en.

The petition can be read here: https://​www.​lamoncloa.​gob.​es/​consejodeministr​os/​Documents/​11102017-requerimiento.​pdf.

Puigdemont sent a letter to Rajoy on October 16, 2017 with a couple of requests: first, the end of political and judicial repression in Catalonia; second, an appointment aimed to conclude an agreement on the Catalan conflict (available at: https://​www.​elnacional.​cat/​es/​politica/​carta-puigdemont-rajoy_​202215_​102.​html). The letter was answered by the Spanish Prime Minister on the same day (available at: https://​www.​lamoncloa.​gob.​es/​presidente/​actividades/​Documents/​2017/​161017RespuestaR​ajoy.​pdf), and there was even a second letter written by Puigdemont on October 19, 2017 in which he threatened to vote the declaration of independence in the Catalan Parliament—whose effects had been suspended at that time—should attempts of dialogue be thwarted and repression continue (available at: https://​estaticos.​elperiodico.​com/​resources/​pdf/​9/​4/​1508399971849.​pdf?​_​ga=​2.​40447137.​2081363125.​1559406558-1242467289.​1559406557).

Order PRA/1034/2017, October 27, by which the Agreement of the Council of Ministers of October 21, 2017 is published (available at: https://​www.​boe.​es/​buscar/​doc.​php?​id=​BOE-A-2017-12328).

Resolution of October 27, 2017, of the Presidency of the Senate, by which the Agreement of the Senate in Plenary Sitting, where the measures requested by the government under Article 155 of the Constitution are passed, is published (available at: https://​www.​boe.​es/​buscar/​doc.​php?​id=​BOE-A-2017-12327).

Royal Decree 942/2017, October 27, in which, by virtue of the measures authorised by the Senate in Plenary Sitting regarding the Generalitat of Catalonia under the basis of Article 155 of the Constitution, the President of the Generalitat of Catalonia, Mr. Carles Puigdemont i Casamajó, is dismissed (available at: https://​www.​boe.​es/​diario_​boe/​txt.​php?​id=​BOE-A-2017-12332); Royal Decree 943/2017, October 27, in which, by virtue of the measures authorised by the Senate in Plenary Sitting regarding the Generalitat of Catalonia under the basis of Article 155 of the Constitution, the Vice-President of the Generalitat of Catalonia and the members of the Council of Government of the Generalitat of Catalonia are dismissed (available at: https://​www.​boe.​es/​diario_​boe/​txt.​php?​id=​BOE-A-2017-12333).

Royal Decree 944/2017, October 27, by which several organs and authorities are entrusted with the enforcement of the measures imposed on the Government and the Administration of the Generalitat of Catalonia that were authorised by the Agreement of the Senate in Plenary Sitting, October 27, 2017 (available at: https://​www.​boe.​es/​buscar/​doc.​php?​id=​BOE-A-2017-12329).

Royal Decree 946/2017, October 27, on the call for election to the Parliament of Catalonia and its dissolution (available at: https://​www.​boe.​es/​buscar/​doc.​php?​id=​BOE-A-2017-12330).

Royal Decree 945/2017, October 27, by which several measures on the organisation of the Generalitat of Catalonia are adopted, and a number of high-ranking officials of the Generalitat of Catalonia are dismissed, by virtue of the measures authorised by the Senate in plenary sitting regarding the Generalitat of Catalonia under the basis of Article 155 of the Constitution (available at: https://​www.​boe.​es/​buscar/​doc.​php?​id=​BOE-A-2017-12334).

On the contrary, a small group of academics holds that Article 155 is an ordinary mechanism by which the state could monitor the acts of the autonomous communities (García-de-Enterría 1983; García-Torres 1984). However, the Constitutional Court declared such interpretation—contained in the controversial Proyecto de Ley Orgánica de Armonización del Proceso Autonómico (Organic Bill of Harmonisation of the Autonomic Process, passed by the Congress of Deputies and the Senate on July 29, 1982)—unconstitutional (CCJ 76/1983, August 5).

Even then, those media with a right-wing leaning criticised the government for the softness perceived in the implementation of federal coercion. See, for instance, El Mundo (2018).

Ridao particularly stresses the importance that the omission of the dissolution of the Catalan Parliament and the call of snap elections entailed, since they are exclusive powers of the regional President (2018). Carles Puigdemont might have decided to exercise them before October 27, 2017, which would have almost certainly prevented the Agreement of the Council of Ministers from being adopted and then approved by the Senate.

Order PRA/1034/2017, October 27, by which the Agreement of the Council of Ministers of October 21, 2017 is published.

The Constitution contemplates two different situations which can prompt the government to apply Article 155: the breach of constitutional or legal obligations, and the attack against the general interest of Spain. Scholars disagree on this point, where two positions can be distinguished. First, some authors hold that both situations can be considered as just one, since any violation of the general interest is in fact an infringement of the Constitution or the state laws (Albertí 1985; Ballart 1987). Second, for other academics there are two diverse cases in Article 155, which leads them to defend the adoption of different and more serious measures in case the general interest of Spain is breached (Cruz-Villalón 1984; García-Torres 1984). In the particular case this chapter analyses, both the central government and the Senate assumed that the two situations had occurred: the Catalan authorities ignored their constitutional and legal obligations, and their actions seriously damaged the general interest of Spain.

However, it is not mentioned that the central government favoured this flight with the enactment of the Royal Decree-law 15/2017, October 6, of urgent measures on mobility of economic agents within the national territory (available at: https://​www.​boe.​es/​diario_​boe/​txt.​php?​id=​BOE-A-2017-11501).

For instance, the Act on the referendum of self-determination and the Act on the juridical transition are mentioned. The former had been declared unconstitutional on October 17, 2017 (CCJ 114/2017), while the operation of the latter had been suspended at that time by virtue of Article 161.2 of the Constitution, which reads: ‘The Government may appeal to the Constitutional Court against provisions and resolutions adopted by the bodies of the Self-governing Communities, which shall bring about the suspension of the contested provisions or resolutions (…).’

Resolution of October 27, 2017, of the Presidency of the Senate, by which the Agreement of the Senate in Plenary Sitting, where the measures requested by the government under Article 155 of the Constitution are passed, is published.

Allegations of the President of the Generalitat regarding the request made by the Spanish Government to the Senate in relation to Article 155 of the Constitution (Official Bulletin of the Cortes Generales, Senate, no 165, October 27, 2017. Available at: http://​www.​congreso.​es/​public_​oficiales/​L12/​SEN/​BOCG/​2017/​BOCG_​D_​12_​165_​1373.​PDF).

In Albertí’s words, the negative of the Senate was a ‘gratuitous burden’ on the Generalitat of Catalonia (2018, 31).

The Junta de Portavoces ‘consists of spokespeople of all the parliamentary groups (each group has one spokesperson), together with the representatives of the Government. It is a political organ which organises the contacts between the legislative assembly and the executive branch, and fixes the parliamentary agenda’ (Ferreres 2013, 105).

On the basis of the speech delivered by one of the senators who opposed to the participation of Mascarell in the debate, Vintró speculates on ‘resentment’ (2019, 176) as the authentic reason that warranted the decision, given that Puigdemont did not attend the session despite of having been personally invited to be there. In this sense, Senator Barreiro (Partido Popular) justified the negative of his parliamentary group to allow the representative appointed by Puigdemont to intervene in the debate on the following basis: ‘it is a matter of respect to this House’ (Journal of Sessions of the Senate no 183, October 26, 2017, p. 3—available at: http://​www.​congreso.​es/​public_​oficiales/​L12/​SEN/​DS/​CO/​DS_​C_​12_​183.​PDF).

See also Cruz-Villalón (1984).

Article 2 of the Constitution reads: ‘The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognises and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all.’

The expression constitutional bloc is used to make reference to the set of norms that, along with the Constitution, are used to delimit reserved from devolved matters, and also to determine the constitutionality of an act (Rubio-Llorente 1989). Statutes of autonomy are included in the constitutional bloc.

This is the essence of the parliamentary system as contained in Article 152.1 of the Constitution: ‘In the case of Statutes passed by means of the procedure referred to in the foregoing section [as it is the case of Catalonia], the institutional self-government organisation shall be based on a Legislative Assembly elected by universal suffrage under a system of proportional representation which shall also assure the representation of the various areas of the territory; an Executive Council with executive and administrative functions and a President elected by the Assembly among its members and appointed by the King (…).’

Two authors who link inextricably federal coercion to federal loyalty are Álvarez (2008, 2016) and Arroyo (2015).

Article 126 of the Italian Constitution reads: ‘The Regional Council may be dissolved and the President of the Executive may be removed with a reasoned decree of the President of the Republic in the case of acts in contrast with the Constitution or grave violations of the law. The dissolution or removal may also be decided for reasons of national security. Such decree is adopted after consultation with a committee of Deputies and Senators for regional affairs which is set up in the manner established by a law of the Republic (…)’—italics added.

Several scholars (Entrena 1985; Urías 2019) have explained that Article 155 ‘follows the federal example and not the Italian model, typical from regional states, in which the Regional Council may be dissolved by a decree of the President of the Republic’ (Entrena 1985, 2313).

The proposed text read as follows: ‘In serious cases, the Government shall be able to approve the intervention of an Autonomous region, and the Cortes shall be informed immediately. Measures may include: the suspension of one or more of its self-governing bodies, the appointment of a Governor General vested with extraordinary powers. The intervention shall be accorded by a motivated Decree and automatically give rise to a debate on the question of confidence in the Congress. The Decree must detail the period of intervention, which will be connected to an election call.’

Amendment no 736, presented by Deputy Ortí, added a third section to Article 155 (at that time, numbered 144) with the following text: ‘(3) The King, at the proposal of the President of the Government, after deliberation of the Council of Ministers and having consulted with the Presidents of the Congress and the Senate, shall be able to decree the dissolution of the regional Assembly for the commission of actions contrary to the Constitution, for seriously violating the law, or for reasons of state security’ (available at: http://​www.​congreso.​es/​constitucion/​ficheros/​enmiendas/​enmcongreso.​pdf). Senator Ballarín proposed the amendment no 957, which read: ‘(3) Regional bodies may be dissolved if the measures adopted are not complied with, or for reasons of national security (…)’ (available at: http://​www.​congreso.​es/​constitucion/​ficheros/​enmiendas/​enmsenado.​pdf).

Other Constitutions specifically include the possibility of dissolving regional legislatures and calling elections (Article 100 of the Constitution of Austria) only, or of removing also the regional government (Article 234 of the Constitution of Portugal), when applying federal coercion.

Article 23 reads as follows: ‘(1) Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage. (2) They also have the right to accede under conditions of equality to public functions and positions, in accordance with the requirements laid down by the law.’

Article 153 establishes: ‘Control over the bodies of the Self-governing Communities shall be exercised by: (a) The Constitutional Court, in matters pertaining to the constitutionality of their regulatory provisions having the force of law (…).’ Article 161, for its part, reads: ‘(1). The Constitutional Court has jurisdiction over the whole Spanish territory and is entitled to hear: (a) against the alleged unconstitutionality of acts and statutes having the force of an act (…). (2) The Government may appeal to the Constitutional Court against provisions and resolutions adopted by the bodies of the Self-governing Communities, which shall bring about the suspension of the contested provisions or resolutions, but the Court must either ratify or lift the suspension, as the case may be, within a period of not more of five months.’

Fraenkel (2006) differentiates a normative state (Normenstaat) from a prerogative state (Massnahmenstaat). The scope of politics cannot be regulated by norms, rather measures control it. When applying measures, public officers exercise their powers discretionally. What is important to note is that aspects confined to normality are decided from the prerogative state, and also that in a real state, normative and discretionary aspects coexist. Therefore, ‘a state will be closer to the ideal of the rule of law as fewer measures typical from a prerogative state contains’ (Vilajosana 2019, 140).

For example, see the restrictive interpretation of referenda held by the Constitutional Court (CCJ 103/2008, September 11). English version available at: https://​www.​tribunalconstitu​cional.​es/​ResolucionesTrad​ucidas/​103-2008,%20​of%20​September%20​11.​pdf.

A detailed account of the interferences that individual rights and liberties faced before and after 1-O, with particular reference to freedom of speech, can be found in Barceló (2019).

More than 100 Professors in Criminal Law signed a manifesto in November 2017 to denounce a number of abuses in the trial against the Catalan nationalist leaders. First, acts attributed to them do not constitute rebellion because violence, an essential element of that offence, was absent. Second, rebellion crimes do not fall within the remit of the Audiencia Nacional (a special and exceptional High Court with jurisdiction over the whole territory of Spain in some specific matters). Third, the judge Carmen Lamela was arguably too severe when applying law, in particular because she ordered pre-trial detention (Álvarez-García et al. 2017).

The European arrest warrant (EAW) is ‘a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order’ [Article 1.1 of the Council Framework Decision of June 13, 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA)]. When Puigdemont fled Spain just after declaring the independence of Catalonia, the Constitutional Court issued an EAW against him based on the offences of rebellion and misuse of public funds. On March 25, 2018 Puigdemont was arrested in Germany pursuant to the EAW. The Oberlandesgericht (Higher Regional Court) in Schleswig-Holstein ruled that Puigdemont could only be surrendered to face the charge of misuse of public funds, but not that of rebellion because ‘the act on which the European arrest warrant is based does not constitute an offence under the law of’ Germany (Article 4.1). The decision of the German Court led the Constitutional Court to withdraw the EAW against Puigdemont, while the rest of his deposed cabinet are in jail—except those consellers who also abandoned Spain—and being prosecuted for rebellion. Given that democratic legitimacy of the members of the government derives from that of the President, who receives it in the investiture session from the majority vote of the MPs, only the President is individually responsible for the government action. Any act which could be considered rebellion would be included within the government action. Therefore, as the President has been discharged for rebellion, the public prosecutor should drop charges against the members of his government.

The political atmosphere brought to mind echoes of a war between two factions: Spaniards against Catalans. That is why, according to the Spanish Secretary of the Interior, José-Ignacio Zoido (Partido Popular), ‘6000’ Spanish anti-riot police officers were deployed in Catalonia with the aim of preventing citizens from voting on October 1, 2017 (Journal of Sessions of the Senate no 210, January 18, 2018, p. 13—available at: http://​www.​congreso.​es/​public_​oficiales/​L12/​SEN/​DS/​CO/​DS_​C_​12_​210.​PDF); additionally, in many cities hundreds of people went to see them off at police stations chanting ¡A por ellos, oé! (Go for them!), a war cry often heard on football pitches (El Mundo 2017).

Operation Catalonia was a conspiracy aimed at stopping political dissent in Catalonia and, more specifically, the independence movement. It was carried out between 2011 and 2016, while Jorge Fernández-Díaz (Partido Popular) was the Spanish Secretary of the Interior. It consisted of a series of actions of a political, police, and intelligence nature that intended to minimise social support for independence by means of discrediting it as a political option. In particular, political leaders were accused of corruption (Report of the Commission of Inquiry on the Operation Catalonia, Official Bulletin of the Catalan Parliament no 498, September 1, 2017—available at: https://​www.​parlament.​cat/​document/​actualitat/​232293.​pdf).

Order HFP/886/2017, 20 September, by which credits are declared to be unavailable in the 2017 Catalan Regional Budget (available at: https://​www.​boe.​es/​diario_​boe/​txt.​php?​id=​BOE-A-2017-10741)—abolished on December 27, 2017.

In the regional election held on December 21, 2017, Partido Popular only obtained 4 seats (out of 135) and the Partit dels Socialistes de Catalunya obtained 17 seats. The winner was Ciudadanos, with 36 seats; however, the sum of Junts per Catalunya (34 seats), Esquerra Republicana de Catalunya (32 seats) and Candidatura d’Unitat Popular-Crida Constituent (4 seats) amounted to an overall majority. Thus, Quim Torra (Junts per Catalunya) was inaugurated President of the Generalitat (May 17, 2018), after the failed attempts to invest Jordi Sànchez and Jordi Turull, both in custody awaiting trial. As can be seen, political parties that voted in favour of Article 155 in the Senate are in a minority in the Catalan legislature (57 seats out of 135).

For example, the previous request that the Council of Ministers sent to Puigdemont on October 11, 2017 read: ‘The democratic state cannot exist without the rule of law, a state in which all public authorities are subject to the law.’

As Aragón has pointed out, although the Constitution ‘cannot be legitimate without democracy [or without fundamental rights], it can be legitimate with a bigger or smaller people. For democratic constitutional theory (…), the configuration of the people (its external limits as a human group different from other peoples) and its territorial dimension are facts that law regulates, but they do not provide any justification for law—or, in other words, they do not confer legitimacy on law’ (1989, 54).

During the negotiations aimed to pass the state budget, Pedro Sánchez met Quim Torra, the President of the Generalitat, in Pedralbes (December 20, 2018). After the meeting, a document containing 21 points to be agreed on was released to the press (Proposal of the government of Catalonia to the summit with the government of Spain: A state agreement to resolve the conflict between Spain and Catalonia—available at: https://​drive.​google.​com/​file/​d/​1H-YXFqIGA-baBUyoqkG6A7oAGM​AJ_​Jsh/​view). Point 3 was particularly contentious—‘It is necessary an international mediation in order to facilitate a negotiation on equal terms—’; so much so that references to ‘the inferior position of Spain’ (ABC 2019), ‘humiliation’ (Cruz and Oms 2019), and even ‘treason’ (La Razón 2019) could be read in certain newspapers.

Alfredo Pérez-Rubalcaba (Partido Socialista Obrero Español) coined the term ‘Frankenstein government’ to discredit the possibility of constituting a left-wing government with Unidos Podemos and other nationalist parties in 2016 (EFE 2016). Partido Popular and Ciudadanos liked the formula and several of their representatives have used it afterwards—see, for instance, Mariano Rajoy (Journal of Session of the Congress of Deputies, no 126, May 31, 2018, p. 16), Rafael Hernando (Journal of Sessions of the Congress of Deputies, no 127, June 1, 2018, p. 5), Inés Arrimadas (ABC 2018) or Albert Rivera (Journal of Sessions of the Congress of Deputies, no 2, July 22, 2019, p. 39).

On December 12, 2017, while direct rule was operating in Catalonia, Senator Jon Iñarritu (EH-Bildu, a left-wing Basque nationalist party) asked the then Secretary of the Interior, José-Ignacio Zoido, whether a number of powers would be transferred to the Basque Country and Navarre. Zoido, instead of directly responding the question, warned him that ‘Article 155 is applicable to everybody’ (Journal of Sessions of the Senate no 53, December 12, 2017, p. 27—available at: http://​www.​congreso.​es/​public_​oficiales/​L12/​SEN/​DS/​PL/​DS_​P_​12_​53.​PDF).

For instance, the Act 39/2006, December 14, for the Promotion of Personal Autonomy and Care for People in a Situation of Dependency, was criticised for invading devolved matters (Lasagabaster 2007; Aguado 2012).

Particular relevance bears the Organic Act 4/2015, March 30, on Public Safety, popularly known as ‘Gag Law,’ which has been severely criticised for curtailing ‘freedom of expression, peaceful assembly and information’ (Amnesty International 2018, 340).

This chapter was written before the Constitutional Court rulings on Article 155 were published. During the proofreading process, the Court released the rulings 89/2019 and 90/2019, July 2, 2019 which almost completely endorsed the interpretation of Article 155 made by both the Spanish government and the Senate. Nevertheless, the main thesis argued in this chapter holds firmly. Part 3 of this chapter maintains a stricter interpretation of Article 155 than the one contained in the Agreement of the Senate—which the Court has found to be in accordance with the Constitution—, but it does fit the wide limits set by the Court. As well as some problems that the reasoning of the Court presents—apodictic in some passages, as Ridao has observed (2019)—, this loose exegesis of Article 155 reveals a number of deficiencies in the political understanding of democracy, the rule of law, constitutionalism, and fundamental rights that are quite worrying, as explained in Part 4.