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martes, 23 de diciembre de 2008

"Spain is the problem, Europe is the Solution. "

Early in the 20th century, Spanish philosopher, José Ortega y Gasset wrote that "Spain is the problem, Europe is the Solution. " By and large, having done so well out of the the EU since joining, Spain has uncritically supported almost anything coming from Brussels since.. But the attitude no doubt will change, and soon. From 2013 this country will no longer enjoy billions of euros in growth and stability pact funds and instead is to become a net contributor. In the first half of 2010 it will hold the EU presidency. That may force this country to debate its interests in Europe and it will require a clearer sense of what this country is and what it stands for. Spain's political leaders have tended to look backwards and to emphasize the regional issues that have divided them. What now appears to be a looming and long lasting recession will create new economic paradigms and political demands..

Another factor, as immediate, is the appeals being made to European institutions, the Parliament, the Commission and ultimately the courts (ECJ and ECHR) for the justice due to EU citizens, and which is proving difficult to secure within this country. Spain is signatory to a range of EU and other international accords, and as a member of the EU is also bound to ensure that the laws, norms, directives- all having the same legal force- are adhered to within all of Spain's national territory. That includes provisions as regards human rights - and the subset thereof, ie. rights to private property, the free movement of peoples within the “european Space”, treaties such Aarhus, designed to guarantee transparency and good governance at the regional and especially local level, repect for public contract laws, etc.

The reality is that, when called to account for breaches of EU laws and others of its international undertakings, Spanish officials are quick to claim that, due to internal power sharing arrangements, the responsibility for respecting such laws, notably for development and environmental issues has been passed to the autonomous regions. In turn, the regions boldly state that adherence to Spain's international commitments are not their concern, but that of Madrid. So there is a kilometre wide gap in the legal processes in particular as regards compliance with EU obligations. While regional and national courts can and should ensure such compliance, experience has shown that this is rarely the case, with judges either ignorant of EU law or prepared to ignore it in reaching their judgements. Only recently is there any sign of a change, for example at the level of regional superior courts and this is very uncertain for now. If there is hope, it is no doubt because those courts are aware the EU is now taking a hard look at what has been going on here for years with relative impunity.

In principle, acccording to international law and jurisprudence, a state's treaty obligations ( and this includes for Spain, EU laws) should be paramount amongst the laws of the land, followed by national, regional and even local laws in descending heirarchy. In practice, in Spain it is almost always the reverse. That is the town councils call the shots, ignoring higher level laws as it suits them to do so. Usually, despite Spain's constitutional guarantees and EU undertakings, it has often been stated in rejecting allegations based on these laws that they simply do not form part of the local planning processes.The legislative bodies here are wont to pass complex laws full of loopholes which result in little or no protection against outrageous development schemes or predatory promoters. Spanish courts have tended to support town halls and ignore the rights of small property owners. In effect, what rules is not the law or a moral code but what can be got away with. That has suited those who control the situation here for a long time.

However, in the face of allegations against uncompensated land grabs based on undefined “public interest” given the costly, drawn out and uncertain nature of the Spanish courts, starting just a few years ago, recourse has been made to the EU Parliament, the Commission and via the latter route to the European Court of Justice ( ECJ). The ECJ is or has been engaged in dealing with Spain’s breaches of EU laws as regards public contracts, environmental and water supply studies. The court has already ordered the halt of some major projects and will no doubt find against Spain in more instances. The Parliament now has before it, for consideration in early 2009 one of the toughest reports concerning development abuses within an EU member state ever seen in that body, again based on investigations in and petitions received from Spain, whilst echoing other recent reports such as those from Greenpeace, Transparency International and the UN’s Special advisor on housing. The Commission has announced that it will soon review some 250 approved development projects here that appear to have ignored water supply directives. It will also be investigating instances where there has been an obvious misuse of EU funds and possibly where there has been arbitrary and retroactive application of laws such as the “Ley de Costas” affecting tens of thousands of property owners. All this in response to the well documented complaints received in Brussels, Spain being the origin of well over half of all those emanating from within the 27 member EU.

Since Spain has also failed to transpose or has done so incorrectly, directives regarding the rights of EU citizens and their dependents to reside and work within the broader EU terrritory, this has been the subject of questions recently posed by MEPs. Because residency is linked to voting rights, this is especially important now with EU Parliamentary elections looming in June 2009. It may be that this too will be an issue for the ECJ before long. It remains to be seen whether “Europe is the solution” to the problems this country has largely created for itself. Sr. Ortega probably never dreamed there would be so many.

Season's greetings,



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