Unprecedented war of the courts to disregard the Constitutional Court

MadridJudge María Luisa Segoviano was the only member of the Constitutional Court (CC) who attended the swearing-in of two new Supreme Court judges on Monday. The rest met to address the unprecedented conflict that has erupted within the institution and has occupied virtually the entire week. This is the challenge posed by the High Court of Justice of Madrid (TSJM) and the Provincial Court of Seville: they intend to circumvent TC rulings by submitting their preliminary questions to the Court of Justice of the European Union (CJEU). In fact, the Madrid court has already made the request in Luxembourg. This is the avenue the Supreme Court has already hinted it would use to further postpone the implementation of the amnesty law and, therefore, may also delay the process. the return of Carles Puigdemont. What's going on?

Can a court disobey the Constitutional Court?

The TSJM and the Seville Court of Appeals are seeking the CJEU as an arbitrator.

While the TSJM has already ruled on the law, the most notable clash—at least in the media—is with the Seville Court. The Constitutional Court overturned the rulings for the Andalusian EREs, and now the court, which disagrees with the decision of the highest interpreter of the Constitution, wants to consult in Luxembourg on whether the ruling adopted by the Constitutional Court is contrary to European law and, therefore, may not immediately apply the ruling. This has never happened before. "In 99.9% of cases, a preliminary ruling is filed during the proceedings, as the name suggests, prejudicial, before the trial. "I have the finality of resolving a question of interpretation of a European standard", underlines a source from the TC. There have been three or four cases in Europe, he continues, in which a consultation on a ruling has been brought to the CJEU.

In the case of the TSJM, it is an arbitration dispute between Cabify and other companies in the sector that have directed to the CJEU, while the Court of Seville has issued a ruling in which it consults the parties who have criteria. It would be the previous step. Article 4 of the organic law of the Constitutional Court has made it clear: "The TC will delimit the scope of its jurisdiction and will adopt the measures that follow. necessary to preserve it, and it includes the declaration of nullity of those acts or resolutions that undermine it. Could this route be used to prevent the cases from reaching Europe?

What has the TC done at the moment?

Address the Seville Court and initiate internal debate

Internally, there has been discussion among the judges, but the presiding judge, Cándido Conde-Pumpido, has not yet requested a report from the court's legal services. He has, however, formally requested that the Seville Court send him the ruling initiating the proceedings so that, in a few days, he can finally file the preliminary ruling. This decision caused internal division within the Constitutional Court, and the Seville Court has asked for explanations to "justify" the request. Procedurally, the Constitutional Court wants to receive it formally, although it has already learned about it through the media. What's the problem? Even if the Constitutional Court is considering annulling the ruling, considering that the Seville Court must comply with its ruling, certain deadlines are necessary to hear the Prosecutor's Office and the other parties. During that time, the provincial court could file the preliminary ruling, leaving the Constitutional Court with no room to stop it, as has happened with the TSJM. "They have the upper hand," laments a source from the Constitutional Court.

Can the TC stop it?

There is a division among judges on the scope of action

There are other members of the guarantee body who believe that the Constitutional Court does have the leeway to prevent the preliminary ruling from reaching the CJEU. And they refer to Article 92 of the Organic Law: "It shall ensure the effective enforcement of its decisions. It may provide in the judgment, or in the resolution, or in subsequent acts, for the person who must execute it, the necessary enforcement measures and, where appropriate, resolve enforcement incidents," says Section 1. Cu. – was introduced in 2015 with an absolute majority of the PP after the November 9 referendum, with the aim of discouraging disobedience. "We have very broad powers to ensure the enforcement of our rulings," claim those in favor of taking action.

One alternative is to do nothing and let the preliminary rulings follow their course and let the CJEU rule. "If you do this, you open the door for any court to file a preliminary ruling from now on if it disagrees with your ruling," the judicial authority points out, however. The situation is so unusual that it's also unclear whether the Constitutional Court could now issue a ruling reversing the preliminary ruling already filed by the High Court of Justice (TSJM) before the European Court of Justice (CJEU) or, instead, whether it could only serve to prevent future ones. "What a legal mess," the Ministry of Justice notes. Within the Constitutional Court, there are also voices that, despite the "total fraud and abuse" by the dissenting courts, advocate reaching a "minimum consensus" between the progressive and conservative sectors on such a delicate issue so as "not to increase tension." Within the right-wing group, there are members who support the move by the Seville Court and the High Court of Justice (TSJM).

How does this affect Puigdemont?

The Supreme Court can maneuver to prevent free return

The conflict unfolding these days is a precedent for what will happen with the amnesty, which is already on the table of the Constitutional Court. Primarily, with the PP's appeal of unconstitutionality. When Manuel Marchena ruled out applying the law to those already convicted in the Trial, he already hinted at this scenario: "If an interpretation were to consider the crime of embezzlement as amnestiable, it would have forced us—or would force us in the future—to raise the preliminary question before the CJEU," stated the September 20 ruling. If it is applicable to the leaders of the 1-O referendum—presumably before the summer, by 6 votes to 4 in favor of the progressive majority—the Supreme Court will follow the example of the TSJM and the Seville Court and will turn to Luxembourg. Will there be a ruling by the Constitutional Court that prevents it? Here is the ruling. crux of the debate currently underway in the body chaired by Conde-Pumpido. We might wonder why the Supreme Court didn't opt to refer the preliminary ruling directly to the CJEU instead of going through the CC. The same court admits that the reason is that it was the way to delay the application of the amnesty as much as possible.

One of the hypotheses for Puigdemont's return was that once the CC endorsed the amnesty, the Supreme Court could still hinder the final closing of the case by asking the CJEU whether the embezzlement was eligible for amnesty, but not the free return of Puigdemont. In this sense, the law provides for the mandatory lifting of current precautionary measures—the exiles have an arrest warrant and a warrant for their imprisonment in Spanish territory—but nothing can be taken for granted anymore.