What is the Situation of Constitutional Jurisdiction in Europe? Worrying News from Spain

Verfassungsblog has been continuously reporting about worrying developments concerning the Polish Constitutional Court during the past months. The siege under which this Court has been placed since the PiS took office in Warsaw remains (luckily) an isolated case in Europe. The European Union started “rule-of-law proceedings” under Article 7 TEU, but that attempt did not get very far. Although the situation in Poland is unique, the speed at which the Polish Constitutional Court has been subjugated should make the rest of us think about the regulations concerning our Constitutional jurisdictions and about the behaviour of other political actors with respect to them. The Polish experience shows that depriving a Constitutional Court of its independence is a matter of months. If the rest of the EU Member States want to be in a position to criticise PiS’ reforms and to exert the necessary political pressure to revert them, they have to be sure that their own domestic situation is irreproachable in this regard.

Recent developments in Spain have led me to these reflections, and I would like to describe them briefly here to sound the alarm about what happens in other European countries more discretely than in Poland, but also very disturbingly.

The Spanish Senate has to replace four judges of the Constitutional Court whose mandates expire this year. A reform to the Act on the Constitutional Court introduced in 2007 a new procedure to “federalise” the election of constitutional judges by the Spanish Senate, which is supposed to be a Chamber of territorial representation. According to the new procedure, the Parliaments of the 17 Autonomous Regions may propose two candidates each. The Appointments Commission of the Senate chooses four candidates (they have to conduct hearings for this purpose) and the Senate votes in a plenary session. The Constitution requires a 3/5 majority ...

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