How can state investments in Catalonia be guaranteed?

The Congress, with votes against from the PP, Vox, Junts, the PNB, and UPN, has decided not to consider the creation of a parity investment consortium between the State and the Generalitat. Other avenues will need to be sought, therefore. While the consortium can be considered an overlapping and artificial structure, it is still wishful thinking to believe that a structural problem will disappear merely by invoking the State's obligation to execute what is budgeted. Furthermore, the problem is not only the non-compliance but also the underinvestment accumulated over years, which has forced the Generalitat to make a historic, anticipatory effort by, for example, paying tolls.The 2006 Statute already included the third additional provision, which set the criteria for determining the amount of investments, a mechanism that was replicated by the Balearic Islands, Andalusia, Aragon, Castile and León, and the Valencian Community. In the Catalan case, it was foreseen that, excluding the interterritorial compensation fund, state investment would be equivalent to Catalonia's percentage of participation in the state GDP for seven years.However, the ruling of the Constitutional Court on the Statute (STC 31/2010) declared that the provision did not bind the General Courts when approving the State budgets, degrading its normative value. To do so, it recalled the doctrine on the second additional provision of the Andalusian Statute (STC 13/2007): although it recognized the constitutional legitimacy of the exceptional financing mechanism, it considered that the Spanish executive was not obliged to include the item in the budget bill if there was no prior bilateral agreement between the State and the autonomous community. A 2017 ruling by the Supreme Court resolved, in application of this criterion, the appeal for review against a ruling of July 27, 2015, by the National High Court which dismissed the claim of the Minister of Economy in the face of the inaction of the Ministry of Finance in transferring to Catalonia the funds provided for in the 2008 budget, according to the third additional provision of the Statute. The Generalitat-State Bilateral Commission had set this fund at 759 million euros on July 19, 2011.

Let's say, however, that what is appropriate is assumed. What happens if the Congress approves the budget item and the State does not execute it, or does not do so with the necessary speed? Neither budgetary legislation nor the annual budget laws contain mechanisms to guarantee investments, even though, for example, the hundred and fiftieth additional provision of Law 11/2020, of December 30, on General State Budgets for 2021, established that the Commission on State Investments in Infrastructure – created by the second section of the third additional provision of the Statute – would carry out a quarterly follow-up of the execution progress to expedite pending investments, and would study ways to maximize their realization and ensure that the annual execution progress was not lower than the average of territorialized state investment. But this proved to be an ineffective mechanism.In addition, it seems that the ways to compel compliance are none other than political claims or complaints, from civil society or the economic world. But there are also technical solutions, such as management assignments, which are slow and cumbersome to process. Or that the budget law sets the consequences of incomplete execution of investments: amounts not executed to be transferred within a reasonable period – for example, three months – from the end of the fiscal year.However, it would be necessary to assess in each case whether the eventual transfer to the Generalitat would operate regardless of the level of execution of state investments or be referred to the average of territorialized state investment. At the same time, it should be established what is understood by unexecuted investment (the tendered work?). In this case, the information on the level of execution of the State's investments in Catalonia should be sent by the state institutions, accompanied by the supporting documentation, to the Generalitat-State Bilateral Commission, so that it could adopt an agreement recognizing the debt.The possibility of resorting to participatory formulas has also been raised. The first, that the Generalitat plays a leading role in the execution of investments through an agreement that establishes the regime for the execution and supervision of the works. Or, as the outdated proposal of the Government and ERC suggested, and as the Institute for the Study of Self-Government already proposed in 2021, to authorize by law the constitution of a parity consortium with direct execution functions. There is also the possibility of establishing a mixed commercial company, which only requires the authorization of the council of ministers, a formula inspired by the Barcelona Sagrera Alta Velocitat project, created in 2003, with coordination and impulse functions for the construction of this station. Anything less than remaining idle.