At the end of July 2024, the European Commission made public its fifth Annual Rule of Law Report and the different chapters relating to each of the EU Member States. These reports are a soft law instrument that the Commission started elaborating on in 2020, an additional piece of the EU Rule of Law toolbox.

This post analyzes the chapter dedicated to Spain. The 31-page chapter consists of a summary, recommendations, and four sections, which are the aspects of the Rule of Law that the Commission takes into consideration in its reports: i) judicial system, ii) corruption, iii) freedom and pluralism of the media and iv) other institutional issues related to the system of institutional counter powers (the shortest section). It also contains two annexes including the documents consulted and the meetings and interviews held by the Commission during its preparation.

I) With regard to the judicial system, the deadlock in the General Council of the Judiciary (CGPJ) and the appointment procedure of its members had been the main concerns in previous reports. In Spain, the CGPJ is the body of judicial government and administration and ensures the independence of courts and judges, yet it does not form part of the judiciary (Article 117 Spanish Constitution). The CGPJ consists of the President of the Supreme Court and 20 individuals: 12 judges and 8 lawyers or other jurists. The CGPJ members are appointed for a non-renewable period of five years. While the Spanish Constitution requires the 8 jurists to be appointed by a 3/5 majority in each Chamber of the Spanish Parliament (each Chamber appoints 4), it does not specify how the 12 members representing judges are to be appointed (Article 122 Spanish Constitution). The appointment process has undergone significant changes over time and represents one of the most sensitive and contested issues. Initially, the 12 judges were elected by judges, but since 1985 the Parliament is also responsible for the appointment of the 12 judges with a 3/5 majority. In practice, the 3/5 majority requirement, rather than promoting broad political consensus, has led the Socialist Party and the Popular Party (the two main parties in Spain) to appoint the twenty candidates between them, with the inclusion of members recommended by smaller political groups, depending on whether these groups support the party in power (either the Socialist or the Popular). The CGPJ had been exercising its functions ad interim[1] since December 2018, because the two main parties were unable to reach an agreement for the renewal of the body. Not surprisingly, the agreement for its renewal, promoted in part by the European Commission and finally concluded in July 2024, is the main aspect addressed in the Report. The Commission hopes that, in addition to renewing the composition of the body, the appointment procedure will be reformed to bring it into line with European standards on the matter. These standards are to be found in the 2010 Council of Europe Recommendation on judges: independence, efficiency, and responsibilities. It provides that when it comes to Judiciary Councils, “at least half of members of such councils must be judges chosen by other judges from all levels of the judiciary” (para. 27). However, no step has yet been taken in this direction (according to the agreement, in 6 months the CGPJ had to formulate a proposal to the Government and the Spanish Parliament, which means that there is still some time).

Another criticism of the Commission, also present in previous reports, is that no measures have been taken to decouple in time the mandate of the State’s Attorney General and that of the Government. Although the Commission does not elaborate on this, it should be emphasized that this is not a theoretical problem. The lack of independence of the current holder of the office has been highlighted in a 2023 Report of the CGPJ. The report criticized, among other things, the lack of transparency in discretionary appointments. In this regard, note that according to the 2024 Hay Derecho[2] Report on the Rule of Law in Spain, the majority of appointments (about 70%) made by the current State’s Attorney General have fallen on people belonging to a certain association (the Progressive Union of Prosecutors), to which he belongs, but to which only 7.4% of prosecutors in Spain are affiliated. (Hay Derecho Report, p. 75) This favoritism requires, at the very least, a justification.

Despite these data, the Commission lowers its critical tone with respect to the 2023 report, since the agreement on the renewal of the CGPJ contemplates a reform of the Organic Statute of the State’s Attorney General to prohibit citizens who have held political posts in the recent past from becoming attorneys general. The Commission is confident that the agreement will become law.

The Commission insists (it had already referred to it in previous years) that public statements by politicians, including the government, criticizing the judiciary erode public confidence in the judiciary: “Damage to this confidence is particularly relevant in relation to statements by members of the legislative and the executive branches, as all powers of the State must foster and protect the trust of the general public in constitutional institutions including the judiciary” (p. 9). In fact, in the 2024 Annual Report on the Rule of Law in Europe, the Commission highlights two risks to the Rule of Law in Spain in the section on judicial systems: the way in which the members of the CGPJ are elected and the undue pressure that the executive power exerts on the judiciary.

II) Regarding corruption, the Commission assures that in Spain the level of corruption in the public sector is perceived to be relatively low, however, in all indexes, our perception is higher than the European average. The Commission regrets that Spain does not have a comprehensive strategy or a specialized agency to prevent and combat corruption, something already detected in previous reports. Moreover, Organic Law 14/2022 of 22 December reformed the regulation of the offence of misappropriation and introduced the crime of illicit enrichment and has been widely criticized for the reduction of related penalties it has entailed. In other words, Spain has moved in the opposite direction to that recommended by the Commission. The Commission also notes that “the current low number of judges and prosecutors, as well as an overall absence of specialised judges and tribunals working on anticorruption matters, hampers the investigation and prosecution of corruption cases.” (p. 18)

In addition, although the Commission considers that progress has been made in terms of the length of investigations and prosecution of high-level corruption, it regrets that the reform of the Criminal Procedure Law has yet to materialize and that the conflict of interest regime for public employees has not been improved. Nor has there been any progress in the obligation of members of Parliament to publish in their agendas the meetings they hold with representatives of entities that have the status of interest groups. In this regard, the draft Law on Transparency and Integrity in the Activities of Interest Groups has not yet been sent to Parliament, despite being a recommendation of the 2023 Rule of Law report. Likewise, the new Independent Authority for the Protection of Whistleblowers has not yet been created, despite being an obligation of Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October on the protection of persons who report breaches of Union Law, which has been partially transposed into Spanish law through Law 2/2023. In any case, although the Commission does not mention it, the draft royal decree regulating the status of this Authority was presented on April 24, 2024. It is, however, a matter of concern that this Authority is linked to the Ministry of Justice and that its President is appointed by the Minister of Justice, without any transparent procedure being envisaged. (Hay Derecho Report, p. 97)

III) In relation to the media, the Commission is concerned about the lack of transparency in the ownership of the media, as well as their financial management and media concentration. In addition, a better legal framework for institutional advertising is also lacking, and greater transparency is required in the distribution of such advertising, to prevent its continued use for partisan or electoral purposes.

As for RTVE (the state-owned public corporation that assumes the indirect management of the Spanish public radio and television service), the Commission limits itself to describing the interim situation in which the Board of Directors and the presidency of the body find themselves and the inability to reach a sufficient majority in Congress (3/5) to put an end to this interim situation. However, it makes no reference to the fact that the new interim President, Concepción Cascajosa, is a militant of the main party in the Government, the Socialist party, that proposed her as a councilor of the entity, despite having been ranked 86th out of 95 among those selected in the public competition called in 2018 with a score of just 6 out of 30 points. (Hay Derecho Report, p. 102) Besides, there have been recent developments that the Commission was unable to analyze at the time. On 22th October 2024 the Government approved Royal Decree-Law 5/2024 in order to adopt urgent measures regarding the legal regime applicable to RTVE. Thus, the Board of Directors will be renewed in Congress in the second round by an absolute majority of 176 deputies. In other words, the parliamentary majority that supports the Government, without the need to reach an agreement with the opposition, will renew the Board of Directors (and subsequently the Presidency). This new procedure may call into question the independence of the state-owned public corporation.

Another issue of concern to the Commission is that no further progress has been made in improving access to information, despite the recommendations made in 2023. Likewise, the Commission also highlights the growing tendency of public institutions and political parties to hold press conferences at which statements are made without the possibility of questions or at which certain media are excluded. (p. 26)

IV) The last section, dedicated to other institutional issues related to the system of institutional counter-powers, includes a merely descriptive reference to the Amnesty Law, approved by Congress on May 30, 2024. Such law, aimed at removing pending legal action against those involved in the Catalan unilateral effort to secede from Spain, is part of the coalition agreements signed by the President of the Government with two Catalan pro-independence parties, following the 23 July 2023 national elections. Although the President had pledged before the elections that he would not support such a law, he admitted afterwards that this was the only way to keep him in power after the elections, since the support of Catalan pro-independence parties in the Spanish Parliament was necessary to secure the parliamentary confidence. The Commission only acknowledges that this law has been the subject of great controversy[3] in Spain and that the information submitted by the Spanish authorities is still being analyzed in Brussels. The Commission highlights the Venice Commission’s Opinion of March 15, 2024, particularly the criticism of the urgent processing of the bill and the lack of a reinforced majority in Congress. Taking into account the always cautious language in these types of texts, it can be assumed that the Commission endorses the criticisms of the Venice Commission. The Commission, like the Venice Commission at the time, does not enter into an assessment of the political circumstances that led to the approval of this law, one of the aspects most emphasized by the critics of the law, since these circumstances cannot be ignored when judging it, i.e., is it a law aimed at facilitating harmonious coexistence or is it simply the political price to pay for the support of Catalan pro-independence parties in Spanish Parliament? This amnesty law is the only critical aspect of Spain that the Commission mentions in the Annual Report in the section on institutional counter powers, but limiting it to a problem of excessive use of accelerated legislative procedures. Perhaps most surprising, however, is that the Commission makes no assessment of the law’s compatibility with EU law.

On the other hand, in this section, beyond some references to issues with a minor impact on the health of the Rule of Law (such as the initiatives to increase public participation in policy-making and promote the culture of the Rule of Law), the Commission insists on the concern regarding some procedural practices related to the use of emergency procedures for the approval of legislation. In reality, although the Commission does not specify it, we are dealing here with two different and both serious deficiencies of the Spanish system: on the one hand, the standardization of legislating through decree-laws (meaning fewer opportunities for political dialogue and pluralism in the legislative procedure) and, on the other hand, to various anomalies, like, for instance, the use of legislative proposals (i.e., proposición de ley) submitted by parliamentary groups that are, in reality, draft laws (i.e., proyecto de ley) prepared by the government. Unlike a draft law, a legislative proposal introduced by parliamentary groups is dispensed, amongst others, from seeking reports and opinions from the State Council, the General Council of the Judiciary, the Fiscal Council, or the Ministry of Finance. With this practice, the Government, instead of submitting its draft law to the Parliament, sends the text to the parliamentary groups that support it so that they turn the text into a legislative proposal, avoiding many requirements. These are practices that distort the legislative procedure and which have increased in recent years.

Even more discouraging is the reference to the Constitutional Court, which is only mentioned to applaud the fact that measures are being implemented to speed up appeals for constitutional protection of fundamental rights (i.e., recursos de amparo). Without disdaining the importance of speeding up the processing and resolution of these appeals through digital tools, it seems, to say the least, surprising that the Commission does not echo the growing politicization of that body. In December 2022, the Government proposed two new Judges who had been part of that same Government. Never before had a Government proposed as constitutional Judges people who had been part of the same Government due to the serious breakdown of the appearance of independence that this implies. (Hay Derecho Report, p. 86). The Commission does not even make a single reference to the fact that many of the current members of the Constitutional Court have held various public positions, subordinate to political parties, right before joining the Court. This anomaly is a matter of public knowledge, as it has been denounced by a multitude of academics in press articles.

In short, although it is understandable that the Commission adopts a prudent and diplomatic tone in this type of report, the chapter dedicated to Spain is disappointing because it barely addresses essential issues that in recent years have eroded the Rule of Law in the country and have been denounced in multiple forums. On the one hand, it dwells on irrelevant issues and, on the other, it does not delve into serious problems. It is striking that the European Commission is not more incisive with the institutional deterioration in Spain (as it is with other Member States), because at least for now the opinions of the European institutions have an effect on Spanish public opinion, both the complaints and the recommendations for improvement. It is, in short, a missed opportunity.

Núria González Campañá, Assistant Professor of Constitutional Law at the University of Barcelona, member of the Jean Monnet Chair in European Constitutional Democracy-EUCODEM

1) The interim status meant that the functions of the body were merely administrative and it could not proceed with appointments for top judicial positions. In 2023, the Commission noted that “due to the continued lack of renewal, over 30% of the judicial positions of the Supreme Court that are required by law are now vacant […] This also leads to a decrease of the number of rulings by the Supreme Court which, given its role in ensuring consistency in the interpretation of national law, has an impact on legal certainty since first instance and other courts continue dealing with cases that would benefit from the Supreme Court’s guidance.” European Commission, 2023 Rule of Law Report, Country Chapter on the rule of law situation in Spain, SWD(2023) 809 final, p. 5-6.

2) Hay Derecho Foundation is a civil society organisation founded in 2015 in Spain aimed at promoting institutional regeneration, combating corruption and defending the Rule of law.

3) Indeed, as the Venice Commission admits, “the Bill has provoked fierce criticism in Spain and beyond. Numerous institutions have rejected the Bill, mainly on the grounds that it is an attack on the independence of the judiciary and on equality before the law, including the General Council of the Judiciary (which warned, albeit before the actual bill was presented, that the proposed amnesty ‘implies the degradation, if not abolition, of the Rule of Law in Spain’), the Supreme Court, the Prosecutors’ Associations, the General Council of Spanish Lawyers and the Spanish Diplomats’ Association. Massive demonstrations were held against it. According to a poll by Metroscopia before the draft law was unveiled, 70 percent of those questioned said they were against a law on amnesty, compared with 26 percent who said they were in favor of the amnesty.” Venice Commission, “Opinion on the rule of law requirements of amnesties, with particular reference to the parliamentary bill of Spain “on the organic law on amnesty for the institutional, political and social normalization of Catalonia”, adopted by the Venice Commission at its 138th Plenary Session (Venice, 15-16 March 2024)” CDL-AD(2024) 003-e, p. 7. As proof of the divisive character of the bill, it should be noted that the Senate, the second Chamber of the Spanish Parliament, voted against the bill. However, it was finally approved by the Spanish Congress on May 30^th, 2024, but it received the backing of a narrow majority, with 177 lawmakers voting in favour and 172 voting against.