Template-Type: ReDIF-Article 1.0 Author-Name: Manuel Medina Guerrero Title: La constitucionalización del principio de estabilidad presupuestaria Abstract: Resumen:Este artículo pretende examinar la incidencia de la reforma constitucional española en el sistema autonómico, y se centra fundamentalmente en el análisis de la Ley Orgánica 2/2012 dictada en desarrollo del art. 135 CE. Esta LO ha modificado sustancialmente el anterior marco normativo, de tal modo que entraña una profunda reestructuración del sistema de relaciones intergubernamentales hasta ahora existente: con el objeto de asegurar la observancia de la disciplina fiscal, ahora se somete a las CCAA a nuevos mecanismos de supervisión y sanción. Por último, una reforma de la Ley Orgánica realizada el año 2013 ha ampliado la regla del límite de deuda, al incorporar la deuda comercial al ámbito de aplicación del art. 135 CE.Abstract:

From a legal standpoint, it is unquestionable that the reform of Article 135 of the Spanish Constitution is the main consequence arising from the severe sovereign debt crisis suffered by Spain in recent years. In order to reassure the financial markets, the modification of the constitutional framework essentially sought to strengthen the commitment to the two major restrictions directly imposed by European Union law on the budgetary policy of Member States: limitations on both the deficit and the total volume of public debt. And yet, the real potential of new Article 135 goes beyond the mere ratification of the demands of fiscal discipline imposed by Brussels. Thereby, on the one hand, it enables the Central Government to set by organic law the maximum permitted structural deficit for both the State and the Autonomous Communities. The only condition to be met when setting the deficit level is not to exceed the thresholds stipulated, if applicable, by the European Union (Article 135.2 of the Spanish Constitution). On the other hand, it allows to fill constitutional gaps that had so far hindered the effective enforcement of such discipline to all administrations by Central Government authorities. Thus, the Spanish fiscal stability legislation existing prior to the reform lacked a feature deemed to be essential to set up a truly effective fiscal rule, namely, a mechanism of credible sanctions. This explains the extent to which the central legislature is right now empowered to regulate the matter: the Article 135.5 of the Constitution specifies those material areas that the Organic Law “shall, in any event, regulate". Among these areas, the following are included: "the way and term in which the possible deviations over one or other ceiling [the deficit and debt limits] shall be corrected” (a); and “the liability of each Public Administration in the event of a breach of budgetary stability targets” (c). In short, this constitutional reform lays the groundwork for the extension of the catalogue of measures (necessarily restrictive for financial independence) that the State can undertake in order to ensure compliance with both the deficit and debt limits by the Autonomous Communities and Local Authorities.   There is no doubt that the central legislature has made the most of the generous empowerment conferred by the reformed Article 135 of the Spanish Constitution. Hence, the Organic Law 2/2012 on Fiscal Stability and Financial Sustainability has set up an array of instruments of control in benefit of central power which, due both to its intensity and extension, has no equal in decentralized neighboring countries. Suffice it to mention the main supervisory measures and sanctions provided for in this respect. To begin with, this Act requires that, within the term of fifteen days from non-compliance ocurring, the Administration in breach of the stability targets has to approve the freezing of credits and implement the corresponding withholding of credit "to guarantee compliance with the target set" [Article 25.1 a) ]. On the other hand, it includes various financial sanctions in line with the already known traditional ones in European legislation [Article 25.1 b)]: the non-complying Autonomous Community is obliged to lodge an interest bearing deposit in the Bank of Spain equivalent to 0.2% of its GDP.  Should the appropriate measures to ensure compliance with the targets be adopted, the deposit will be cancelled. Otherwise, within a period of three months, the deposit will cease to generate interest and if, following a further three-month period, no measures are implemented, “it may be decided to convert the deposit into a coercive fine”.In addition, the Organic Law 2/2012 modifies the regime applicable to devolded taxes envisaged in the Organic Law of Finance of Autonomous Communities. Namely, the regulatory powers vouchsafed to the Autonomous Communities regarding devolded taxes will be exercised by the State [Article 25. 1 a) last line]. The next step in the control/sanction system contained in Chapter IV of the Organic Law 2/2012 consists in the dispatch by the Government of "a commission of experts to assess the economic and budgetary situation of the administration concerned”. The functions and powers attributed to this commission are not negligible. Firstly, “this commission may request, and the administration concerned shall be obliged tofurnish, any data, information or background regarding items of revenue and expenditure”. In line with this principle, the possibility that the Central Administration is able not only to request information from the distance to the Sub-central Government, but it is endowed also to get it in situ within this Sub-central Administration, is not entirely unknown in the neighboring federal states. This is the case in Germany, where the Article 84.3 of the Bonn Basic Law specifically provides that the Federal Government send commissioners to the Länder to check that federal laws are implemented in accordance with the law in force. Furthermore, it is widely understood that these commissioners are endowed with powers of investigation and inspection, including the examination of dossiers. However, in the German case, the general rule is that of the "imperviousness " of the Länder Administrations, in such a way that the dispatch is only possible with regards to the "highest authorities of the Land" (governmental level). The intervention of the commissioners regarding the "subordinate authorities" (officials or other type of position holders) is deemed to be exceptional given that it requires the consent of the highest authorities of the Land or, this consent lacking, the approval of the Bundesrat. On the contrary, the terms of Article 25.2 of the Organic Law 2/2012 seem neither to exclude that the "commission of experts" might enter into relations with intermediate positions holders of the Autonomous Communities, nor that the State might extend its power of carrying out inspections to the various centres or services linked to the Autonomous Communities Administration, facilitating thereby a particularly intense interference in the regional sphere. But this is certainly not the main problem posed by the regulation of this commission of experts. Besides these powers in the information field, this commission is vested with the following attributions: “the commission must submit a proposal of measures, and its conclusions shall be made public within one week. The measures proposed shall be binding upon the non-complying administration”. The wording of the Organic Law entails a real decision-making power for the commission over those Regional Governments supervised. The constitutional adequacy of this power is more than doubtful. Nonetheless, the Constitutional Court has saved by interpretative via the constitutionality of the provision, considering that it is to be understood as meaning that the decisions to be taken by the commission of experts have no binding legal effect (STC 215/2014, FJ 7º). Finally, by virtue of Article 155 of the Constitution (Article 26), the institution of federal coercion brings to an end the set of coercive measures provided for in the Organic Law 2/2012 concerning the Autonomous Communities. This institution is conceived as a true decentralization system shutdown clause, as it is designed to operate in extreme crisis situations (essentially: failure to comply with the constitutional obligations), since it allows the Government, following the approval granted by an absolute majority of the Senate, to issue instructions to all the authorities of the non-complying Autonomous Community.   This scheme originally planned by the central legislature has only be hardened thereafter. The principle of financial sustainability was conceived in the original version of the Law of Fiscal Stability as “the capacity to finance present and future spending commitments within the limits of the deficit and public debt” (Article 4.2). Following the reform of this Act stemming from the Organic  Law 9/2013, this principle has been extended to the “late payment of commercial debt”. Thereby, commercial debt directly becomes a substantive element of the system of fiscal discipline imposed on the Autonomous Communities by the central legislature. Consequently , this kind of debt further entails the activation of a set of supervisory, controlling and sanctioning powers granted to the State over the Autonomous Communities. Moreover, it constitutes an extension of fiscal discipline that is of dubious constitutionality given that Article 135 of the Constitution is limited to financial debts. But while the Constitutional Court had not taken a decision concerning this issue, the late payment of commercial debt can result in the implementation of the coercive measures envisaged in the event of non-compliance with the deficit and debt limits. Those measures are: the freeze on credits; the exercise by the State of the regulatory powers concerning devolved taxes; the deposit in the Bank of Spain; and the dispatch of the “commission of experts” to the Autonomous Community concerned. Classification-JEL: R1 Keywords: Regla Del Equilibrio Presupuestario, Deuda pública, Disciplina Fiscal, Federalismo fiscal, Relaciones intergubernamentales, Balanced Budget Rule, Public Debt, Fiscal Discipline, Fiscal federalism, Intergovernmental Relations Pages: 73-102 Volume: 1 Year: 2016 File-URL: http://www.revistaestudiosregionales.com/documentos/articulos/pdf-articulo-2486.pdf File-Format: Application/pdf Handle: RePEc:rer:articu:v:1:y:2016:p:73-102