www.catalangovernment.eu

WHITE PAPER WHITE PAPER

 THE

NATIONAL  
TRANSITION  
OF  
CATALONIA

 THE

NATIONAL  
TRANSITION  
OF  
CATALONIA

SYNTHESIS

WHITE PAPER ON THE NATIONAL TRANSITION OF CATALONIA. SYNTHESIS

 

White paper on  
The National Transition  
of Catalonia

Synthesis

Barcelona, 2014

www.catalangovernment.eu

 

This edition: 
© 2014, Generalitat de Catalunya. Department of the Presidency

First edition: September 2014. 
Cover design: Estudi Tere Guix  
Photography: Pedro Madueño and Rubén Moreno 
Editorial production: Autonomous Institution of the Diari Oficial and Publications 
Legal deposit: B 22481-2014

 

3

Summary

Deciding to win the future 6

Artur Mas i Gavarró, president of the Government of Catalonia

The National Transition of Catalonia 9

Synthesis  15

1 The constituent process  17

1.1 Legitimisation of the process of self-determination  19

1.1.1 Self-determination in application of a democratic principle 19

1.1.2 Self-determination as the inalienable right of a national community 19 
1.1.3 Self-determination as the last resort to remedy an unjust situation 20 
1.1.4 Application in Catalonia 21

1.2 How to get there. The consultation on the political future  24

1.2.1 Arguments to legitimise the holding of the consultation 24

1.2.2 Legal strategies to call a legal consultation in accordance with internal law 25 
1.2.3 The consultation within the framework of European Union law and  
international law 26

1.2.4 The implementation of the results of the legal consultation 27

1.2.5 Alternative routes if the legal consultation cannot be held 29

1.3 Second stage in the creation of the new Catalan State:  
From the consultation or plebiscite elections to the unilateral proclamation  
or declaration of independence 31

1.3.1 Scenario of collaboration 31

1.3.2 Scenario of non-collaboration 33

1.4 Third stage in the creation of the new Catalan State: From the unilateral  
proclamation or declaration of independence to the approval of the Constitution 36 
1.4.1 Constitutional law on the constituent process 36

1.4.2 The constituent procedure 37

1.4.3 The interim systems 38

1.5 The Succession of Governance and Administrations 41

1.5.1 Legislative programme of the new State 42

1.5.2 Succession of regulations and the institutions that enforce them 43 
1.5.3 Autonomous regional law and State law 43

1.5.4 Treaty and Supranational Law 44

1.5.5 The Succession of Administrations. Principle and techniques 44 
1.5.6 People providing services to the Administration 46

1.5.7 Regime of the implemented administrative acts, the proceedings  
in progress and related information. 47

1.5.8 The succession of contracts 49

 

4

1.6 The distribution of assets and liabilities with the Spanish State 53 
1.6.1 The legal framework 53

1.6.2 Public debt and obligations of the State 55

1.6.3 Assets and rights of the State 57

1.6.4 Historical, artistic and cultural heritage 57

1.6.5 Natural resources 58

1.6.6 Private property and debts 58

1.7 Quantitative variation in the budgets of the Generalitat, after the new  
Catalan State is achieved 59

1.7.1 Additional expenditure 59

1.7.2 Additional revenues 60

1.7.3 Fiscal surplus of the Generalitat 60

1.7.4 Considerations for the first few months 61

2 The organisation of Catalonia as a new State  63

2.1 Economics and Finance  65

2.1.1 Fiscal and financial viability  65

2.1.2 Monetary policy. The euro  65

2.1.3 Bank of Catalonia, the country’s own central bank 66

2.1.4 The Catalan Investments and Markets Authority  68

2.1.5 The Tax Administration  69

2.1.6 Customs service  72

2.2 Administrative authorities and structures of the new State  74

2.2.1 Competition and regulation authorities 74

2.2.2 Other administrative structures required by the EU  75

a) Rail transport, electricity and gas energy services and telecommunications  75 
b) Financial system and economic and social policies  76

c) Justice, rights, freedoms and security  77

d) Education, culture, science and environment  78

e) Consumer protection  79

f) Foreign and security policy 79

2.3 Catalan Social Security  81

2.3.1 The Catalan concept of Social Security  81

2.3.2 Functional and organic aspects 82

2.3.3 Contributory pensions and sustainability of retirement pensions 82

2.4 The judiciary and the administration of justice  84

2.4.1 Organisation and jurisdiction of courts  84

2.4.2 Regulation of court procedures and language system 85

2.4.3 Pending processes and judicial executions 85

2.4.4 Provisional judiciary system of government  86

2.5 Law enforcement and defence  88

2.5.1 Defining elements of the new law enforcement system  88

2.5.2 Options and actions in the field of internal law enforcement  89

2.5.3 Taking on the civil protection and emergency management tasks guaranteed  
until now by the central government  90

2.5.4 International coordination with police forces 90

2.5.5 Options and actions in the field of international law enforcement  90 
2.5.6 Operating model, bodies, contingents and organisation  91

2.5.7 Cybersecurity  92

 

5

2.6 Infrastructure: energy and water supply and information technology  
and communication  94

2.6.1 Power supply  94

2.6.2 Water supply  96

2.6.3 Communication and information technology  98

3 The relationship between Catalonia and Spain, the European Union  
and the international community  103

3.1 Cooperation between Catalonia and Spain  105

3.1.1 Cooperation models. Iberian Council or Catalan-Spanish Council 106 
3.1.2 Regional cooperation:  
the Mediterranean Arc 108

3.2 Trade relations between Catalonia and Spain  109

3.3 Cooperation between Catalan-language territories 111

3.3.1 Criteria and proposals  112

3.3.2 Proposal to create a Catalan Language Agreement 113

3.3.3 Consolidation of the Ramon Llull Institute 114

3.4 Paths to Catalonia’s integration in the European Union  115

3.4.1 Legal conditions and requirements  116

3.4.2 Membership scenarios. Procedures to be followed  116

3.4.3 EU flexibility and pragmatism 119

3.4.4 Probabilities of application of the various scenarios  120

3.5 Alternatives to non-permanence of Catalonia in the EU  
or to a prolonged accession process 122

3.5.1 Bilateral agreement between Catalonia and the EU 122

3.5.2 Membership of the EFTA, the EEA and the Schengen Area  122

3.5.3 Free trade agreements and customs unions  123

3.6 Integration with the international community 124

3.6.1 Recognition of the new State 124

3.6.2 Incorporation of international law and treaties within the State’s domestic law 125 
3.6.3 Membership of international intergovernmental organisations 125 
a) Council of Europe 126

b) United Nations and its System 126

c) NATO and other international security agencies (OSCE, EU security  
structures, transatlantic relations and relations with the United States, etc.) 130 
d) Other international institutions 132

 

6

Deciding  
to win the future

Catalonia is experiencing a decisive process  
as a country and a society. Like never before,  
we Catalans are holding in our hands the  
chance to decide on our own future.

Catalonia has always felt like a nation. For a  
long time, it has striven to make this national  
feeling compatible with belonging to a State  
that recognises its unique features. The impossibility of continuing along this pathway  
has led the Catalan people to take to the  
streets and at the polls to express their desire  
to decide on their collective future and to do  
so peacefully, democratically and legally.

“The Advisory Council on the National Transition has identified the  
crucial aspects in order for Catalonia  
to become a State of its own with full  
guarantees”

For more than 100 years, political Catalanism  
has intensely and constructively contributed  
to the political and economic progress of the  
Spanish State, by participating and supporting all the major state decisions and submitting proposals for an amicable fit within Spain  
which recognises its identity and facilitates  
its development as the economic engine of  
southern Europe.

The 2010 Constitutional Court ruling against  
the Statute of Autonomy approved by the people of Catalonia signalled the end of this stage  
and the start of a new process defined by the  
steadfast desire of the citizens of Catalonia to  
decide on their own political future.

The political process in which Catalonia is  
involved is possible thanks to the sum and  
joint efforts of many wills walking in the same

direction. Fundamentally, it is the will that has  
been sustained and clearly expressed by  
broad majorities of Catalans and their civil society, as demonstrated by the thousands and  
thousands of organisations which have joined  
the National Pact on the Right to Decide. But  
the pact and a vast parliamentary majority are  
also what provide coverage for the government of Catalonia’s action to allow Catalans to  
exercise their right to decide at the polls.

The objective of this collective commitment  
is to work together based on respect for the  
legal framework in effect, and to rigorously  
define the future scenarios and the sense of  
responsibility in taking decisions that will define the future of our country.

The excitement and hope of our country’s  
chance to construct a new State that allowed  
everyone to unfold our vast potential, if that is  
what we choose, should not make us forget  
that this process requires a rigorous, hon-est exercise of ascertaining the difficulties  
which we are facing, identifying the risks and  
analysing the possible consequences of our  
decisions.

“We want to decide on our future,  
but we have to do so seriously and  
rigorously, aware of the pathway  
upon which we are embarking”

And this is the job that the Advisory Council  
on the National Transition has been performing over the course of 15 months. Through  
18 reports, the members of this Council have  
identified the crucial factors that our country  
has to deal with in order to become a State of  
its own with full guarantees within the international community.

 

7

The presentation of these reports is a necessary step in the national transition roadmap  
across which our country is travelling. The  
citizens of Catalonia must have the maximum  
information on the decisions and factors that  
should be borne in mind when building the  
future structures of the State in the event that  
the vast majority of Catalans decide that Catalonia should become a new State.

We want to decide on our future, but we have  
to do so seriously and rigorously, aware of the  
pathway upon which we are embarking and  
based on total respect for the divergence  
and diversity of ideas, which are precisely  
the values that make us great and strong as  
a society.

“Making Catalonia a new country  
where everyone lives better, where  
the social cohesion and wellbeing of  
people is guaranteed”

With the same rigour with which we identify  
the difficulties, we must also be aware of the  
vast opportunity facing us in this new scenario. Catalonia has never before had such a  
presence in the world; we have a country with  
a potential that never stops growing in practically all the productive spheres; a country with

creative, dynamic human talent that pushes  
us as a society and a culture; a country with  
a committed, socially conscious civil society.

Now is the time for each person to exercise  
their individual freedom based on their political and ideological convictions and especially  
based on their personal and collective yearnings and desires for the future. It is the time for  
them to draw conclusions and exercise their  
right to decide with full awareness and acceptance of the responsibility that comes from  
knowing and having the utmost information to  
take decisions.

We are a mature, responsible society, and  
now more than ever we must move forward together and believe in ourselves, believe in our  
capacities, which are many and diverse, and  
unfold all our potential to reach as far as we  
want to, and especially to retain our constructive spirit in order to make Catalonia a new  
country where everyone lives better, where  
the social cohesion and wellbeing of all people are guaranteed.

This is our dream, and making it possible only  
depends on our will.

Artur Mas i Gavarró 
President of the Government of Catalonia

“Catalonia has always felt like a nation. Like never before, we Catalans  
are holding in our hands the chance  
to decide on our own future.”

 

The National Transition  
of Catalonia

 

11

The National  
Transition of Catalonia

of being obsolete. After months of negotiation, and with a sweeping agreement among  
the vast majority of parliamentary forces at the  
time, the new Statute of Autonomy was approved by the Parliament of Catalonia on the  
30th of September 2005.

In June 2006, the Statute was subjected to a  
referendum among the people of Catalonia,  
who overwhelmingly supported it. Once it had  
been approved and endorsed by the citizens,  
it was sent to the Constitutional Court, which,  
four years later issued a resolute ruling that  
not only cut back fundamental competences  
and institutions in the development of selfgovernance in Catalonia but also thwarted  
the national hopes and aspirations of an entire people. Yet instead of standing with folded  
arms, they took to the streets in droves in July  
2010 to hold demonstrations under the slogan  
of “We are a nation. We decide”.

The November 2010 elections led to new  
parliamentary majorities. As the outcome of  
the electoral mandate, the new government  
called for a new tax agreement that would  
put an end to the constant drain of resources  
which meant an annual loss of eight percent  
of Catalonia’s GDP. This tax deficit, which seriously hinders Catalan institutions’ leeway for  
action, has prompted an overall loss in competitiveness in Catalan society and has triggered tensions in the provision of public services to the people.

The Spanish government once again refused  
any margin for negotiation on the tax agreement proposed by the Generalitat, which also  
had broad, diverse support in Parliament. This  
refusal was the main event that precipitated  
the call for new elections.

Catalonia is poised at a crucial juncture in  
its history. More than three decades after the  
restoration of the Generalitat (Government of  
Catalonia), the claims for self-governance and  
national rights are being expressed with more  
vigour and more across society than ever.

The institutions of the country, its political  
parties and its civil society have persistently  
worked all these years to find a fit within Spain  
that would fulfil Catalonia’s legitimate national  
aspirations. In this entire time, Catalonia has  
managed to erect a political and administrative structure that has turned the Generalitat  
into the day-by-day backbone of its citizens’  
public life.

However, recent events, such as the Spanish  
law on education, the attacks on our country’s model of linguistic coexistence, the law  
on market unity, the new state law that severely limits the autonomy of town halls and the  
suffocation of the finances of the Generalitat  
wrought by the state institutions all spotlight  
the excessively centralist vision and inconsistent process of recentralisation of competences and resources that the Spanish State  
is implacably applying. All of this casts doubt  
on, or even casts a pall of crisis on, the real  
meaning of the State of the Autonomies which  
the spirit of the 1978 Constitution captured in  
a consensual fashion.

In February of 2004, the parliamentary commission that launched the efforts to write a  
new Statute of Autonomy was set up. It was  
set up with the goal of seeking new formulas  
in the relationship with Spain, reinforcing the  
national nature of Catalonia and furthering its  
self-governance 25 years after the approval  
of the first Statute, which was showing signs

 

12

The Parliament that emerged from these  
new elections was made up of a clear majority of the parties that had gone to the polls  
under the pledge of the right to decide, the  
commitment to consult the people of Catalonia on their political future. This commitment  
was made official with the legislative agreement between the two main parliamentary  
forces and with the different parliamentary  
initiatives that emerged from the Catalan  
chamber.

In recent years, sweeping social support (as  
proven by the historical and huge popular  
demonstrations on the recent Diades or national holidays), political unity of action (as  
shown by the agreement reached by the vast  
majority of political parties regarding the date  
of and question to be asked in the consultation scheduled for the 9th of November 2014)  
and scrupulous respect for the legal framework (with the approval of the law on non-referendum consultations and citizen participation) have shaped the process and political

action of what is called the national transition  
process of Catalonia and have revealed the  
Catalans’ steadfast democratic will.

This will is also reflected in the establishment  
of the National Pact on the Right to Decide,  
which brings together the most representative  
institutions in the country which are in favour  
of the right to decide. All told, it encompasses  
more than 3,500 civil, civic, citizen, cultural,  
economic, social, union and business entities  
from all over Catalonia.

During the investiture debate of the 10 
th
leg-

islature, the president of the Generalitat secured a commitment to hold a consultation of  
the people of Catalonia regarding the country’s political and national future in order to  
guarantee its economic, social and cultural  
development and its survival, to strengthen  
and improve its wellbeing. As a result of this  
commitment, a government decree issued in  
February 2013 created the Advisory Council  
on the National Transition (CATN).

Plenary session of the Advisory Council on the National Transition.

 

13

The creation of CATN reflects the government’s desire to enlist the best legal and technical advice to carry out this process, which  
must be based on the principles of dialogue  
and legality, with the goal of achieving the  
maximum consensus possible. CATN is made  
up of prestigious individuals in the different  
disciplines associated with the national transition process, and their participation on the  
Council has not entailed any monetary compensation.

Its composition was as follows:

• Carles Viver Pi-Sunyer (president) 
• Núria Bosch i Roca (vice president) 
• Enoch Albertí i Rovira 
• Germà Bel i Queralt 
• Carles Boix i Serra 
• Salvador Cardús i Ros 
• Àngel Castiñeira Fernández 
• Francina Esteve i Garcia 
• Joan Font i Fabregó 
• Rafael Grasa i Hernández 
• Pilar Rahola i Martínez 
• Josep Maria Reniu i Vilamala 
• Ferran Requejo i Coll 
• Joan Vintró i Castells 
• Víctor Cullell i Comellas (secretary)

For almost a year and a half, this Council has  
held 54 plenary meetings which were captured in the more than 1,300 pages in the following 18 reports:

• Report no. 1: “The consultation on the political future of Catalonia” (25 July 2013) 
• Report no. 2: “The tax administration of  
Catalonia” (20 December 2013) 
• Report no. 3: “Cooperation relations be-

tween Catalonia and the Spanish State”  
(20 December 2013) 
• Report no. 4: “Internationalisation of the  
consultation and process of self-determi-

nation in Catalonia” (20 December 2013) 
• Report no. 5: “The information and communication technologies in Catalonia” (20

December 2013) 
• Report no. 6: “The means of integrating  
Catalonia into the European Union” (14

April 2014)

• Report no. 7: “The distribution of assets  
and liabilities” (14 July 2014) 
• Report no. 8: “Monetary policy (Euro),  
Central Bank and supervision of the finan-

cial system” (14 July 2014) 
• Report no. 9: “The water and energy supply” (14 July 2014) 
• Report no. 10: “The constituent process”

(14 July 2014) 
• Report no. 11: “Trade relations between  
Catalonia and Spain” (28 July 2014) 
• Report no. 12: “Regulatory and compe-

tence authorities and administrative structures required by the European Union” (28  
July 2014) 
• Report no. 13: “Integration into the international community” (28 July 2014) 
• Report no. 14: “Judicial power and the administration of justice” (28 July 2014) 
• Report no. 15: “Catalan social security”  
(28 July 2014) 
• Report no. 16: “The succession of governance and administrations” (28 July 2014) 
• Report no. 17: “The internal and international security of Catalonia” (28 July 2014) 
• Report no. 18: “The fiscal and financial  
feasibility of an independent Catalonia”  
(28 July 2014)

As the outcome of CATN’s efforts, the government is publishing this White Paper on the National Transition of Catalonia, which contains  
first the series of reports issued by the Council, and secondly a synthesis of these reports  
issued by the secretary of the Council.

In order to be able to exercise the right to decide, it is essential to also be able to guarantee citizens’ right to know so that they have as  
much information as possible on the different  
future scenarios that might occur. Thus, the  
main goal of this white paper and its synthesis  
is to provide rigorous information that contributes to making the democratic process heading towards the national transition of Catalonia  
stronger by providing citizens as a whole with  
the information they need to knowledgeably  
exercise their right to decide.

 

Synthesis

 

1 The constituent process

 

19

is regarded as a primary right of individuals in a regional collective, as long as certain contextual conditions exist, such as  
the facticity of the new State (economic,  
political, etc.), the facticity of the previous  
State, the fact that the rights of minorities  
are guaranteed and the fact that significant international instability is not generated.

1.1.2 Self-determination  
as the inalienable right  
of a national community

Here the right to self-determination is supported by the right to sovereignty which stems  
directly from a given collective’s nature as a  
national community.

Given the strength of democracy as a principle of political legitimisation, today the first  
two principles tend to be combined to justify a  
process of self-determination in two sequential steps: first, because of its status as a nation, as a national community is the ultimate  
repository of its sovereignty, and secondly, in  
application of the democratic principle, as this  
community has the right to exercise this sovereignty.

This democratic argument has numerous advantages. First, it is widely accepted in Catalonia among its citizenry, and secondly, it has  
successfully been used by the government,  
the Parliament and those in favour of holding the consultation. It also links up well with  
the liberal and democratic consensus that  
prevails in much of the world. It is supported  
by an important doctrine which can primarily be found in the ruling of the Canadian  
Supreme Court. And it can be grounded in

1.1 Legitimisation of the process  
of self-determination

A defence of the process of self-determination must include the reasons that have led  
the majority of citizens and the government of  
Catalonia to choose this pathway, with a series  
of solid principles that are acceptable to the  
different stakeholders in the international community (diplomats, governments, international  
institutions and organisations) and that have  
at least the understanding if not the empathy  
of the media and public opinion in other countries.

The defence of this process is grounded  
upon three main principles: self-determination as a people’s exercise of the right to  
democratically decide; self-determination as  
an inalienable right given the nature of Catalonia as a nation; and self-determination as  
the last resort to remedy a systematically unjust situation.

These three principles are valid (for Catalonia)  
and can be used at the same time, with some  
variation in emphasis, in the explanation depending on the international audience.

1.1.1 Self-determination in  
application of a democratic  
principle

Especially in liberal-democratic societies, self-  
determination is justified almost intuitively,  
since it responds to the democratic principle  
based on:

• The legitimacy of political authority based  
on the consensus of the governed, regarded as a unit of collective decision-making  
(demos), and even a people’s ability to decide to become this unit; and

• The moral autonomy of individuals. Thus,  
the right to set up an independent State

 

20

the repeated declarations by the Parliament  
of Catalonia that it reserves the right to selfdetermination.

At the same time, however, it has several weak  
points. The first is conceptual. The second,  
more strategic in nature, primarily seems important for the stage that comes after the consultation or for a process which rendered the  
consultation impossible.

The first obstacle is that to be applied, the  
democratic principle requires the sovereign  
subject to be defined. This subject, however,  
is not formally sovereign (this is the reason for  
undertaking the self-determination process)  
and therefore those who are against the consultation often deny that Catalonia is a national community and fluctuate between claiming  
Spain as the only nation or solely accepting  
the self-determination of each individual separately. This is less of an obstacle for Catalonia because the Parliament has made repeated declarations of sovereignty and it reserves  
the right to self-determination. It also has a  
long series of surveys that show sweeping  
majorities in favour of holding the consultation  
in Catalonia and therefore, at least implicitly,  
recognising Catalonia as a unique political  
subject. However, to strengthen the justification of why the consultation is being held now  
and not earlier (such as in 1978), it is advisable to add the argument of secession as the  
last resort.

The second weakness is strategic. The application of the democratic principle, especially if there is no agreement with the Spanish  
State, creates (or reinforces) an important international precedent. Since it legitimises secessions without demanding an effort to justify them, it lowers the cost of secession and  
therefore increases the possibility of there being more secessions in the world. In a volatile  
international context, at least in some regions  
of the world, the mere appeal to democracy  
may arouse concern or hostility among recognised States.

1.1.3 Self-determination as the  
last resort to remedy an unjust  
situation

In accordance with this principal or line of argumentation, self-determination is defended  
as the last resort to remedy serious, persistent  
injustices that have not been solved within the  
existing political framework. Even though there  
is not complete agreement on which situations  
might qualify as serious injustices, they are (in  
descending order of doctrinal agreement):

• Massive human rights violations.

• Unfair military annexations and occupations, especially those that took place after the express ban on territorial conquest  
wars in 1945.

• Violations by the central Spanish State of  
the aspirations of self-governance and internal agreements on regional autonomy.  
These violations include the impossibility  
of reconciling (reasonable) demands for  
regional autonomy with the structure of  
Spain, and Spain’s (systematic) intervention and questioning of regional autonomy  
despite the formal agreements in place.

• When a national or regional minority is a  
permanent minority in a democratic State,  
due to its status as a permanent minority, it  
can never have guarantees that the majority will honour the autonomous agreements.  
(This situation is related to – and might be  
complementary to – the clauses in the previous point.) The only possible remedy  
of this situation is changing the relations  
between the majority and the regional minority until they become strictly equal by  
granting the status of full sovereignty to the  
national minority.

• The international community does not request (or require) any specific justification  
for a people to self-determine: the only  
thing needed is to fulfil the procedural requirements contained, among other places, by the ruling of the International Court  
of Justice dated the 28th of June 2010  
(democratic, peaceful process). However,  
it seems reasonable to explain and justify

 

21

the consultation and political process in  
Catalonia. Thus, using the principle of selfdetermination as the last resort or remedy  
(remedial-right-only secession) implies  
self-imposing a level of exigency that is  
higher than the principles of democracy  
and national law. On the other hand, this  
defence of the process of self-determination has major advantages: it corresponds  
with Catalonia’s historical and political experience of exhausting all the other means  
of fitting within the Spanish State and with  
the motives expressed by the citizens of  
Catalonia; it stresses Catalonia’s desire  
to contribute to reinforcing international  
law and to making its (legitimate) process  
of self-determination compatible with the  
maintenance of a stable international system governed by predictable laws; and it  
is added to the other two justifications of  
secession, namely the democratic principle and a national community’s inalienable  
right to secede.

However, as in the case of the first two principles, the argument of last resort also has  
weaknesses. First, there is not a complete  
consensus on the causes that legitimise selfdetermination as a last resort. Secondly, the  
party that uses it is responsible for proving  
(that is, it bears the burden of proof) the existence of the unfair treatment that justifies selfdetermination.

1.1.4 Application in Catalonia

According to the previous discussion, the discourse of internationalising the process of selfdetermination in Catalonia has to be organised  
in accordance with the following logic, which  
combines the three main principles examined  
above in a chain of argumentation that stresses  
self-determination as the last resort but in no  
way abandons the democratic principle and  
the principle of national community:

• After having systematically and unsuccessfully tried to reconcile its national personality with membership in the Spanish

State, Catalonia is exercising the right to  
self-determination as a last resort or solution first to achieve full national recognition  
and the level of self-governance to which  
its citizens inspire, and secondly to put an  
end to a situation of systematic fiscal discrimination and linguistic and cultural vulnerability.

• The self-determination that aims to establish a sovereign Catalonia must be able to  
guarantee political and legal rights that the  
Spanish political system does not guarantee (and which has not consistently been  
guaranteed even after the transition to  
democracy). This sovereignty does not  
exclude the possibility of establishing confederal mechanisms with Spain, however  
only on strictly equal terms.

• Historically, when Spain’s political circumstances have allowed it, Catalonia has  
shown a steadfast desire to organise itself  
as a unique political community and to  
recover its political and fiscal institutions  
which were abolished numerous times (in  
1714, 1923 and 1939).

• Historically as well, Catalonia has tried to  
combine this desire for autonomy with its  
integration into the Spanish State. The kind  
of solution used, either federalist or autonomist, which has varied according to the  
historical period and political forces behind it, correspond to the usual solutions  
used in different plurinational countries  
around the world, such as Canada, Belgium, the United Kingdom and India. And  
they date back to at least the 19th century,  
with the federative schemes of the First  
Spanish Republic spearheaded by Catalan politicians.

• In the last democratic transition in the  
Spanish State, the 1978 Spanish Constitution (CE) stipulated mechanisms to  
give Catalonia (and other territories and  
regions within the Spanish State) some  
degree of political autonomy. However, as  
a result of the strategy of creating a broad  
consensus to make the political transition  
possible, and to avoid confrontation with

 

22

politicians, the military and other sectors  
of society that had collaborated with the  
dictatorship and had considerable political and coercive support to threaten the  
entire political process at the time, the  
Constitution was written in deliberately  
ambiguous terms with regard to the territorial organisation of the Spanish State.  
For example, article 2 CE used the terms  
‘nationalities’ and ‘regions’ to refer to  
the possible national communities in the  
Spanish State that wanted to achieve a  
certain degree of political autonomy, while  
it reserved the term ‘nation’ for Spain. The  
constituents did not list the autonomous  
communities and under no circumstances did they specify which ones could be  
considered nationalities. Likewise, they  
prepared a series of minimum authorities  
for the autonomous governments, while  
they also established open procedures  
through which the central government  
could delegate competencies. The constitutional text did not establish the system of territorial financing.

• The open nature of the Spanish constitution, in other words, its nature as an incomplete contract, has always made its  
specific application and implementation dependent upon whoever controlled  
the key institutions in the Spanish State  
(Courts, Executive and Constitutional  
Court).

• In fulfilment of the possibilities ushered in  
by the Constitution, in 1979 a Statute of Autonomy was approved which gave Catalonia some degree of self-governance. However, the implementation of the Statute was  
slow and incomplete, largely dependent  
upon the correlation of forces in the Spanish Courts instead of on strict implementation of the legal agreements contained in  
the Statute itself.

• As examined in detail by the “Report on  
functional and organisational duplications between Spain and the Generalitat  
de Catalunya” issued by the Institute of  
Autonomous Studies (IEA), the central ad-

ministration has continued to intervene in  
all matters and powers of the Genera litat  
(Government of Catalonia), even in those  
which are exclusive to Catalonia by nature. As the Institute’s report indicates, “the  
regulatory duplications [by the state and  
regional legislation] take place indifferently  
in both the spheres in which the Generalitat  
has exclusive competences and in those in  
which the competences are shared.

• In order to remedy this situation of invasion of competences (and fiscal discrimination), the Parliament of Catalonia, with  
the support of almost ninety percent of the  
deputies, approved a draft reform Statute  
in 2005. The goal of the new Statute is to  
expand the Generalitat’s competences,  
and primarily to try to avoid Spain’s invasion of these competences by using a text  
that is extraordinarily prolix and detailed,  
and to resolve a systematic fiscal affront.  
However, that text was emended considerably by the Spanish Courts, and once approved by the citizens of Catalonia, it was  
once again trimmed back by Spain’s Constitutional Court in 2010. The Constitutional  
Court ruling not only fully deactivated the  
improvements introduced by the Statute in  
terms of recognition of the national identity  
of Catalonia and its language, its competences (that is, the political power) and its  
financing, but furthermore by cutting back  
the constitutional function that the Statues  
had served until then, it stated that its provisions, especially those on competences  
and finances, were not legally binding for  
the Spanish legislature but instead simply  
political pacts that did not limit the freedom  
of the Spanish legislature to delimit the  
scope of its competences or to establish  
its preferences in the sphere of finances.

• The process of statutory reform and the  
ruling by the Constitutional Court were  
the most reliable proof that Catalonia had  
failed in its attempt to earn recognition  
and a high degree of self-governance in  
a truly plurinational State. What is more,  
they also prove that the citizens of Cata-

 

23

lonia, as a collective with its own territorial  
aspirations, are a permanent minority in  
Spain and cannot expect to get adequate  
political and juridical guarantees within  
the Spanish State. Using truly democratic  
mechanisms (in the strict sense of voting  
within the different state powers), the majority can modify and reduce the Generalitat’s competences at any time so far as to  
render them trivial.

• These are specific examples of the lack of  
political guarantees in the current system:  
the tax deficit with Spain; the low volume of  
public investment by Spain and its systematic failure to execute the approved plans;  
the fact that, as the consequence of the  
system of financing and budgetary procedures in the Spanish State, the principle of  
ordinality is violated (in the regional ranking of per capita income for period from  
2000 to 2010, Catalonia went from being  
4th in nominal per capita GDP to being 9th  
in available family income per capita after

Spain’s budget action); Spain’s refusal to  
negotiate a fiscal pact proposed by the  
Catalan political forces; and the decisions  
aimed at turning Catalan into an increasingly marginal language.

• In view of this situation, the only possible  
remedy would be to give Catalonia the authority to veto any Spanish norms or interventions that harm Catalan interests. This  
veto power is precisely what exists in sovereign States. And it precisely to get this  
power that Catalonia has decided to initiate the current process of self-determination, once again as a last resort to remedy  
an intrinsically unjust situation.

• This process of self-determination is ultimately supported by a national community’s desire to exercise the principle of  
self-determination as recognised by international law (such as the United Nations  
Charter and the pacts approved by the  
UN, as mentioned above) in a democratic,  
peaceful way.

 

24

1.2 How to get there.  
The consultation on the political future

The consultation is a democratic response to  
a demand that has been made repeatedly by  
a rising sector of Catalan society and its political representatives.

The consultation reflects liberal principles:  
It protects the individual and collective  
rights of citizens. The consultation is a tool  
so the citizens of Catalonia can express how  
they want to protect and exercise their individual and collective rights given the often arbitrary political, economic, linguistic and cultural decisions to which Catalonia has been  
and is being subjected by the central power  
and the Spanish institutions.

The consultation reflects egalitarian, inclusive principles. All citizens of Catalonia  
will be asked to participate in the consultation  
regardless of their place of birth, sex, religion  
or ethnic group. All citizens will also be asked  
to participate in the prior debate, where they  
can inform themselves on the possible consequences of the alternatives posed, including the potential establishment of Catalonia as  
an independent State, and to contribute their  
opinions and suggestions.

The consultation is possible within the legal system today. There are very sound legal  
arguments to defend that in the legal system  
currently in place there are five procedures  
through which a consultation could be legally  
called so that the citizens of Catalonia can express their political will on the future of Catalonia.

The consultation is congruent with the  
principles of plurinational federalism. One  
principle of plurinational federalism is the voluntary pact among different national institu-

1.2.1 Arguments to legitimise the  
holding of the consultation

Calling a consultation on the political future of  
Catalonia is a key step in paving the way for  
a constituent process based on the claims of  
civil society and the political decision of the  
Parliament of Catalonia. A clear, unequivocal  
pronouncement from the people is needed  
in order to begin the process of transforming  
Catalonia into a State in its own right, and a  
consultation has all the conditions needed to  
be the means of expressing this pronouncement.

The consultation on the political future of Catalonia itself contains a notable set of legitimacies:

Historical legitimacy. The existence of Catalonia as a unique national entity over the  
centuries gives it a high legitimised profile in  
historical terms compared to other cases in  
comparative politics. Having had its own state  
institutions for centuries which had been eliminated militarily, as well as its repeated desire  
to be recognised in its national specificity and  
to have broad self-governance – objectives  
which have never been achieved in a fair and  
efficient way in its relations with the Spanish  
State in the last three centuries – are all importance sources of legitimation in the international sphere as well.

The consultation reflects democratic, representative, civic and participative principles. The consultation is a civil, participative  
practice that befits an advanced democracy  
in that it provides citizens from the national  
demos
of Catalonia with the key decision-making power on their collective political future.

 

25

tions, a pact that can be renewed according  
to these institutions’ democratic majorities. In  
this sense, federalism is one of the four principles invoked by Canada’s Supreme Court –  
along with democracy, constitutionalism and  
protection of minorities – in its famous ruling  
on the case of Quebec’s possible secession.

The consultation is natural within an advanced, cosmopolitan conception of democracy. The consultation is an exercise that  
is congruent with the values of cosmopolitism,  
which relativises borders, especially when  
they have been imposed by force.

The consultation is functional: It makes it  
possible to emerge from the current political impasse. A consultation with a clear  
question and negotiations entered in good  
faith – as has happened recently in the United  
Kingdom and Scotland, or as is legally provided for in Canada – would not only allow the  
will of the affected parties to be determined  
but it would also give rise to a new political  
and constitutional scenario, regardless of the  
outcome of the consultation, that would break  
the impasse of the current political situation.

Citizen consultations are a common practice in the institutional sphere in democracies. Since 1990, referenda on sovereignty  
or independence have been held in Quebec,  
Bosnia and Herzegovina, Slovenia, Estonia,  
Latvia, Lithuania, Macedonia, Montenegro  
and Scotland. Directly consulting the affected people is, therefore, a widely accepted  
democratic procedure for resolving this kind  
of situation, which enables it to be done in accordance with the international parameters  
of non-violence and democratic appropriateness.

The consultation is congruent with historical tradition and Catalan political culture.  
Historically, Catalonia developed a legal corpus reached through pacts that was grounded  
upon constitutions. Those constitutions were  
nullified by the Nueva Planta decrees (1716).  
Today, the exercise of the right to decide is

congruent with the political history of Catalonia from prior to the aforementioned decrees.

The consultation provides Catalonia with  
international visibility and affirms it as a political subject. The consultation places Catalonia in the eye of international actors as a  
political subject with its own unique, distinct  
desires and decision-making capacity. Its  
conflict with Spain becomes visible.

The consultation has a very high degree  
of citizen support. From the specifically political standpoint, we should also bear in mind  
the considerable support for the consultation  
among the citizens of Catalonia. The figures  
show that a vast majority of citizens of Catalonia support holding a consultation on independence. Specifically, around 75% of Catalans are in favour of calling the consultation,  
around 20% are against it and around 5% are  
indifferent.

1.2.2 Legal strategies to call a  
legal consultation in accordance  
with internal law

After the Supreme Court ruling 42/2014, it has  
become clear that citizens in an autonomous  
community can be consulted on their political  
future as long as the goal of the outcome is  
not to be binding and there are legal routes in  
place through which it can be held. Therefore,  
if Spain has political will, the Spanish legal  
system has five possible ways to consult its  
citizens on their political future.

They are: articles 92 and 150.2 of the Spanish Constitution, Catalan Law 4/2010 on consultations via referenda, the Law on Popular  
Non-referendum Consultations and the Law  
Reforming the Constitution.

The legal routes that offer the most guarantees of constitutionality. Within the five  
routes that can be taken, the ones that fit in the  
best with the Constitution are: article 92 of the  
Spanish Constitution (CE) – especially if we include the reform of the LORMR (organic law

 

26

regulating different kinds of referenda), as well  
as the route outlined in article 150.2 CE, and,  
of course, constitutional reform, which can  
never be unconstitutional by definition.

The legal routes that give the Generalitat  
and the citizens of Catalonia a more important role and that speed up the process. If  
we bear in mind the criteria of giving the Generalitat and the citizens of Catalonia a leading  
role in calling the consultation and its implementation, as well as the criteria of the maximum speed possible, these two goals are  
better achieved through the Catalan laws than  
through articles 92 and 150.2 of the Spanish  
Constitution or constitutional reform. Despite  
this, we should not discount the fact that the  
use of the other routes also comes with an expression of grassroots support, either directly  
(such as through the exercise of the right to  
petition) or through town halls and other local  
institutions (motions to support the consultation).

Conclusion from the joint perspective of  
constitutional guarantees, a prominent role  
for the Generalitat and the citizens of Catalonia and speed. From this threefold perspective, one possible solution would entail undertaking one of the two procedures provided  
for in the “Catalan legislation” which ensure  
speed, and one of the procedures “provided  
for in the Spanish Constitution”, such as the  
one outlined in article 92. This was the criterion expressed by the Advisory Council on the  
National Transition in its report “The consultation on the political future of Catalonia” which  
was published on the 25th of July 2013.

However, the refusal of the Spanish Congress on the 8th of April 2014 to grant the  
Generalitat’s request for the ability to call a  
referendum on the political future of Catalan  
to be transferred to it, along with the Spanish government’s refusal to call any kind of  
consultation, have closed off the legal routes  
linked to articles 92 and 150.2 of the Spanish Constitution. In consequence, given the  
impossibility of using the other routes, the

consultation must be justified under the recent Catalan law on non-referendum consultations approved in September 2014 by the  
Parliament of Catalonia.

1.2.3 The consultation within the  
framework of European Union  
law and international law

Legal procedures to call the consultation.  
Neither EU nor international law contain any  
provision that calls for a procedure which the  
Generalitat can use to call a consultation like  
the one being called for by the majority in  
Catalonia. According to both international and  
EU law, this affair is regarded as an issue that  
must essentially be dealt with internally, within  
each State.

Applicable rights and legal principles in EU  
or international law. In these two legal systems, there are rights and principles that can  
reinforce the legality or legitimacy of calling  
a legal consultation or pursuing alternative  
routes. Examples are the democratic principle, people’s right to self-determination and,  
albeit at another level, the principle of protection of national minorities.

However, none of these three rights and principles is justiciable in the sense that they  
can be used before international or European legal institutions to declare the existence  
of binding legal obligations by the Spanish  
State or other States or international organisations, if applicable. This is because first, the  
aforementioned three rights and principles  
are contained in the legal instruments and  
jurisprudence more as values and principles  
than as rights in the strict sense. Secondly,  
because there are no procedures either in Europe or internationally that enable hypothetical demands based on these principles to be  
channelled with the aim of requiring that legal  
consultations be held or justifying the use of  
alternative routes. Additionally, it should be  
noted that the Generalitat would encounter  
problems of legitimacy for posing legal de-

 

27

mands, and finally, the procedures that can be  
used are almost exclusively not jurisdictional.

Despite this, the fact that they are not justiciable does not mean that they cannot have legal  
effects. Specifically, in terms of holding a legal  
consultation, it is quite evident that these principles, especially the democratic principle,  
have significant legal effects as an ineluctable  
interpretative criterion when interpreting and  
applying the articles of the Spanish Constitution and the internal laws that regulate referendums and consultations through which  
citizens can participate directly in political decision-making. In other words, the principles  
of European and international law, especially  
the democratic principles, as contained in  
the internal system of article 10 of the Spanish Constitution, require the public authorities  
of the Spanish State to interpret the precepts  
that regulate referenda and popular consultations such that, while respecting the principles  
and rules that government the rule of law and  
bearing the democratic principle in mind, they  
attain the utmost expansion of citizens’ rights  
to political participation, including the rights to  
direct political participation.

With regard to implementing the results of legal consultations, these principles, especially  
the democratic principle, may also have an  
extremely important effect in nuancing the  
merely consultative nature that the Constitution attributes to this kind of referendum and  
consultation. In this sense, we should recall  
the ruling handed down by the Canadian Supreme Court, which deduces from the democratic principle on which the Canadian Constitution is based that the Federations and  
Provinces are obligation to negotiate with  
Quebec on its separation in the event that this  
were the result of a referendum on the political  
future of this province.

These principles can also influence the relationship with the pursuit of alternative routes  
and the implementation of their results. For  
example, the democratic principle plays a  
decisive role in legally legitimising plebiscite

elections and more specifically at opposing  
any attempt to ban them by alleging that they  
are a violation of the purposes that elections  
should serve.

In any event, apart from these direct legal  
effects, from the political perspective these  
principles, and especially the democratic  
principle, may also lead to other less negligi-ble effects, such as contributing to politically  
legitimising the use of alternative routes other  
than legal consultations, including a unilateral  
declaration of independence (UDI) and the  
implementation other effects, including independence. They may essentially contribute  
to this while helping the fact that the use of  
these routes and the implementation of these  
results cannot be considered internationally illicit. This is equivalent to saying first that the  
Generalitat can solicit recognition as a new  
State in accordance with the rules and principles that govern international laws, and secondly that States and international bodies may  
recognise the consultations and their results  
without violating any international law, if this is  
their political decision.

1.2.4 The implementation of the  
results of the legal consultation

The victory of a “yes” vote in a consultation  
with a direct question on independence 
• Consequences for the Generalitat. Even  
though referenda and consultations are

legally consultative, in a consultation with  
a direct question on independence, the  
victory of a yes-vote (therefore, equivalent  
to a double yes in view of the agreement  
signed by diverse Catalan political forces  
on the 12th of December 2013) would generate not only undeniable political consequences but also duties or legal consequences for the public authorities involved.  
Specifically, the Generalitat would be obligated to present Spain with a secession  
plan. It could do so by presenting a constitutional reform initiative or by suggesting direct negotiations with Spain apart

 

28

from the constitutional reform procedure.  
The first alternative has the political and  
legal advantage of scrupulous respect for  
the laws in effect; it has the disadvantage  
that Spain could block the process, which  
would require political solutions to be  
sought, or even international mediation, if  
needed. This would give rise to the possibility of embarking upon alternative routes,  
such as a UDI, in the terms outlined in the  
following chapter. If the Generalitat deems  
that the route of constitutional reform is not  
adequate and that it may actually be facing a new constituent process, it may ask  
for negotiations with Spain through a new  
process. However, in this case the doubt  
arises as to whether the formalisation of  
the result of this process should or can be  
done through the existing legal route (constitutional reform). Should Catalonia decide to formalise it through a constitutional  
reform, the problem lies in the final referendum, which would be compulsory and  
binding, yet which would have to be held  
throughout the entire Spanish State.

• In any event, along with the start of the negotiation process with Spain, the Generalitat  
would have to promote a series of actions  
internationally and within the European Un-ion aimed at attaining support for the negotiation process with Spain, including the  
provision for possible mediation, the acceptance and presence in the international  
community, and the admission of Catalonia  
as a new European Union Member State or,  
perhaps, the determination of a specific status for Catalonia until its final adhesion.

• Consequences for Spain. From the stand  
point of Spain, once the Generalitat presents the secession project, it would be  
obligated to open up a process corresponding to the route initiated by Catalonia: the constitutional reform or direct negotiation with the Generalitat, in this case  
by establishing a process that does not  
currently exist.

• In the event that Spain refuses to initiate  
this negotiating process or blocks the con-

stitutional reform by not recognising its  
outcome, it can be considered that a different legal procedure must be pursued,  
or perhaps due directly to underlying issues the problem that arises is essentially  
political, not legal, and it should therefore  
be resolved by political, not legal, means  
even though we should not discard the  
possibility of appealing to legal bodies,  
international ones if needed. Among the  
political means, resorting to international  
mediation might be important, such that  
some States and/or international or supranational agencies may be called on to  
act with Spain (and the Generalitat) to facilitate both the opening of the negotiation  
process and its implementation, given the  
difficulties that might arise. Yet all this does  
not exclude unilateral routes like a UDI as  
a last resort.

The victory of a “no” vote in a consultation  
with a direct question on independence 
• Consequences for both the Generalitat  
and for Spain. In the event of a victory

of the “no” vote, in addition to the political consequences, the immediate consequence or effect would be that the Generalitat could not submit a proposal to create  
a State of its own and/or an independent  
State, at least in the near future. However,  
we should bear in mind that this result cannot be interpreted as an option in favour of  
maintaining the status quo, even if this is  
its immediate effect; naturally, nor can it be  
interpreted as meaning that modifications  
or reforms of the current model are excluded for the future, as it cannot become  
petrified. This result of the consultation  
could prevent new reform projects from  
being initiated, and even new consultation  
projects on the creation of an independent  
State from being initiated after a reasonable amount of time.

The victory of a yes-no vote in a consultation with a direct question on independence 
• The report issued by the Council, “The  
consultation on the political future of Cata-

 

29

lonia”, which was delivered and presented  
to the government in July 2013, did not  
analyse the scenario of the double question contained in the agreement signed  
by diverse Catalan political forces on the  
12

th of December 2013. However, it did

provide for the possibility that in a direct  
question on independence, there may be  
references to Catalonia creating a State  
of its own, and that in this event federal or  
confederal formulas could be considered  
(which would be understood as equivalent  
to the victory of the “yes-no” vote in view of  
the double question agreed to by the consultation on the 9

th of November 2014). The

implementation of the “yes-no” vote would  
require a constitutional reform, most likely  
through the route of aggrieved reform.

1.2.5 Alternative routes if the  
legal consultation cannot be held

Consultations through voting held apart  
from the legal provisions of the Generalitat  
with the support of the town halls or private  
organisations and with the direct support  
of the Generalitat and town halls. These two  
kinds of consultations may enable us to ascertain the desires of the citizens of Catalonia on  
their collective political future. However, they  
come with clear disadvantages, such as the  
clash with Spain if the first of these routes is  
taken, an easy campaign to discredit it by actors and institutions against the consultation  
owing to its futility (presenting as illegal and  
anti-constitutional), potential low or insufficient  
voter turnout, a possible de-legitimisation of  
the results (internationally as well) and logistical organisational problems. These disadvantages seem to advise against implementing  
this alternative scenario.

Plebiscite elections. If there is incontrovertible evidence of the impossibility of holding the  
referendum or consultation on the independence of Catalonia through the legal routes outlined above as a result of the reiterated behaviour against it by the Spanish institutions, the

alternative route of plebiscite elections may be  
the most appropriate way to ascertain the position of the Catalan people on their collective  
political future. This kind of election is characterised by the fact that, once elections for the  
president of the Generalitat have been called,  
some political parties may decide to offer their  
voters Catalonia’s independence in their election platforms or electoral campaigns as their  
sole or main goal, and this could take shape  
in the Parliament adopting a unilateral declaration of independence (UDI) which would  
emerge from the elections and be preceded,  
if necessary, by an official declaration of the  
start of the process of constructing a new  
State, as we shall analyse in the next chapter. The arguments of legality, efficacy and  
respect for the democratic principle can be  
evoked in support of the political legitimacy of  
plebiscite elections.

Unilateral declarations of independence.  
In theory, UDIs can occur as a consequence  
or culmination of plebiscite elections, which  
shall be analysed in the next chapter, with  
the goal of implementing their results. Or instead, they can exceptionally be held prior  
to these elections, without discarding their  
subsequent ratification by a referendum with  
popular consultation. UDIs do not fit within the  
constitutional provisions currently in force, although they are not necessarily in violation of  
any international law or practice. Nonetheless,  
the political legitimacy of UDIs after plebiscite  
elections is based on the democratic legitimacy of the new Parliament which would result  
from these elections, held as an alternative  
to the impossibility of holding a referendum  
or consultation and in the framework of total  
freedom to defend any option. UDIs which are  
not the culmination of plebiscite elections can  
be considered politically legitimate if they are  
the outcome of Spain having prevented plebiscite elections or having adopted attitudes  
that block the implementation of the results of  
a legal consultation.

Mediation procedures. Having reached a  
practical impasse once the internal legal

 

30

routes have been exhausted, there is the possibility of promoting mediation or, if needed,  
arbitration by an international institution or organisation (such as the United Nations) or a  
European organisation (such as the EU). Both  
parties would have to accept the procedure  
based on agreed-upon rules and the legitimacy of the end result of the process. This could  
be one way to unblock the situation, which  
might or might not include holding a consultation to ratify the proposed solution either at

the beginning or end of the process. This has  
the advantage of internationalising the political claim underlying the proposal for consultation. However, in addition to the unlikelihood of  
Spain accepting mediation of this kind, coupled with the complexity of the entire process,  
this proposal has the essential disadvantage  
that it would foreseeably take a long time, given the experience in other processes of this  
kind.

 

31

1.3 Second stage in the creation  
of the new Catalan State: From the consultation or  
plebiscite elections to the unilateral proclamation  
or declaration of independence

a scenario of no collaboration with Spain, or  
even its refusal to negotiate the way to bring  
this will to fruition.

1.3.1 Scenario of collaboration

The first possible scenario is collaboration  
with Spain, in which both the Generalitat and  
Spain agree to faithfully negotiate the way to  
bring the democratically expressed will of the  
citizenry of Catalonia to fruition, in this case,  
to establish its own independent State. This  
is the scenario which reflects a context of full  
democratic normality, and it is the scenario in  
which the process in Scotland in relation to the  
United Kingdom is taking place, as both parties had announced in advance, and perhaps,  
if it reaches this point, the process in Quebec  
with Canada as well, as called for by the Canadian Supreme Court in its ruling on the 20th  
of August 1998.

In the case of Catalonia-Spain, as noted in the  
preceding chapter, this scenario could take  
place by holding a consultation or plebiscite  
elections in which the citizenry of Catalonia  
would democratically express its desire to become its own independent State, which shall  
be analysed below. This would give rise to a  
negotiation between the Catalan and Spanish institutions to bring the popular will to fruition. This negotiation would also serve, among  
other purposes, to prepare for the constituent  
process which would have to be launched  
after the creation of the new State in order to  
fully institutionalise it.

Negotiation after holding a consultation.  
First of all, the negotiation could be undertaken as a result of a consultation on the political future of Catalonia in which this choice has

The current process in which Catalonia is involved (calling for a consultation of its people  
on the possibility of becoming its own independent State) is characterised by being a  
demand that aims to express itself in strictly  
democratic, peaceful terms, and one which is  
occurring in a region that is part of a democratic State that is also a member of the European Union and the Council of Europe,  
organisations which defend values such as  
democracy, freedom and the rule of law, and  
which have mechanisms to guarantee that  
these values are respected.

As mentioned above, this means that the  
case of Catalonia is quite unique, only hypothetically comparable to Scotland and even  
less so to Quebec. However, what makes it a  
unique case compared to the others is that,  
at least until now, the Spanish State has been  
opposed to the expression of the will of the  
Catalan people, essentially alleging reasons  
of legality in a sweeping sense. This attitude  
means that we have to consider the possibility  
of a different scenario than what is happening  
in Scotland (free expression of the will of the  
people through a referendum, and should the  
option of independence win, collaboration in  
implementing the result).

Therefore, if the citizens of Catalonia, through  
the means at their disposal, democratically  
expresses their political will to create a new  
independent State, this would open up a process to make this will come to fruition. This,  
in turn, could essentially happen in two different scenarios: the first would be fully comparable to Scotland and Quebec and would  
entail collaboration between the institutions of  
the Generalitat and Spain to negotiate the implementation of this will, while the second is

 

32

won, and in consequence, Spain agrees to  
negotiate to implement this result. Despite the  
fact that the consultation is not legally binding,  
a result in favour of creating an independent  
State should, under normal circumstances,  
lead to the opening of a negotiation process  
with Spain in order to bring the popular will as  
expressed in the consultation to fruition. That  
is unquestionably the situation that best reflects democratic normality, and it also parallels the cases of Quebec and Scotland (comparable experiences which have approached  
the issue of the independence of a region that  
is part of a democratic State in fully democratic terms) and therefore the most desirable  
scenario.

Negotiation after holding plebiscite elections. Secondly, however, there might also  
arise a scenario of collaboration with Spain if,  
should Catalonia be unable to hold a popular  
consultation, Spain agrees to negotiate after  
an official declaration of the start of the process of creating an independent State after  
elections in which the political forces in favour of this option have won the majority. With  
this declaration, which might also occur after  
holding the popular consultation, Catalonia’s  
sovereignty would be affirmed and the Generalitat would open the process to exercise this  
sovereignty by asking Spain to launch the relevant negotiations.

Even though it starts from the fact that Spain  
has not authorised or consented to holding the  
popular consultation, this scenario cannot be  
wholly discarded, even though it seems paradoxical. Indeed, the will expressed through  
elections – especially if the political forces in  
favour of creating a new independent State  
win a sweeping majority – might make Spain  
reconsider its position, especially because it  
would be facing a de facto situation which had  
occurred without its approval or consent, and  
yet nonetheless it would have to find a democratic solution that is respectful of the will expressed by the citizens, which is the appropriate approach to resolving political conflicts in  
a democratic State. The pressure in favour of a

democratic solution might also come from the  
European Union through a variety of means,  
since the Union would quite likely be interested in a quick, satisfactory solution to the situation for both political and, more importantly,  
economic reasons.

This second phase in the process would be  
opened and closed with two prominent formal  
ceremonies. It would start, especially in the  
case of the plebiscite elections, with an official declaration in favour of the creation of a  
new independent State, and at the end would  
close with a proclamation of independence.

The official declaration would have to be issued by the Parliament (or the government  
with the support of the Parliament) after a consultation, and especially after plebiscite elections. This declaration would have to be formulated such that it offered Spain the opportunity  
to negotiate so that this process could be held  
in a more orderly fashion with fewer risks and  
problems for all parties involved. Therefore,  
this declaration would have to contain an offer, which would also be a request, to Spain to  
negotiate the separation process, including,  
if needed, an appeal for international or European Union mediation and to make it possible to open this process, carry it out in an or-derly fashion and overcome any hurdles that  
might arise. The end of this process would be  
a proclamation of independence agreed upon  
with Spain and accepted by the international  
community. After that, the constituent process  
per se would get underway, which would lead  
to the approval of a Constitution for Catalonia.

In this phase, Catalonia would continue to be  
part of Spain, and in consequence its legal  
system would still be applicable. Despite this,  
we should inquire whether the preparation  
of independence through negotiations with  
Spain could or should entail some change in  
this scenarios in several spheres for reasons  
to be outlined below.

This phase would have to essentially be characterised by the preparation of the birth of the

 

33

new State of Catalonia, which would entail four  
basic objectives:

• negotiating the conditions of the separation with Spain; 
• seeking international recognition; 
• negotiating the conditions for the new

State to join the European Union and other  
international agencies; 
• and internally preparing for the creation of  
the new State.

In this phase of the process, Catalonia would  
continue to be part of the Spanish State, and  
in consequence Spain’s legal and institutional  
system would be applicable. However, this  
legal-institutional framework applicable to  
Catalonia would have to be modified with the  
goal of allowing the Catalan institutions to act  
beyond the competences which the Constitution currently gives them in order to form the  
State structures needed to create and set the  
new independent State into motion. It would  
be ideal if these provisions could be formalised in an action protocol.

1.3.2 Scenario of  
non-collaboration

Instruments of opposition of Spain. This  
scenario can occur if after an official declaration in favour of creating an independent State  
as the result of plebiscite elections, or perhaps after a consultation with a vote in favour  
of this option, Spain does not accept the offer  
to negotiate with the Generalitat.

In this case, a political impasse would arise  
with a very high potential outcome of institutional conflict. It is difficult to precisely predict  
how a crisis of this kind would develop and be  
resolved, but we can make several general  
observations on the matter.

On the other hand, in a scenario of non-collaboration, Spain’s attitude can have varying  
degrees of intensity: from a passive, non-belligerent position towards the actions taken by  
Catalonia to move the process forward to active, belligerent opposition to any movement

by Catalonia towards becoming a State of its  
own. Spain has legal instruments to impugn  
before the Constitutional Court the Generalitat’s actions aimed at creating State structure  
that surpass the framework of competences  
currently in place, as well as other actions  
which the Catalan institutions may take within  
this process which Spain might view as unconstitutional. If they come from the Spanish  
government, these challenges could lead to  
the automatic suspension of the actions impugned for at most five months, when it can  
be revised. Spain also has at its disposal the  
instrument of article 155 of the Spanish Constitution to ask the president of the Generalitat  
and, if this request is not heeded, the Senate  
to authorise by absolute majority the Spanish government’s adoption of “any measures  
needed to obligate it (the autonomous community) to forcibly comply” with the legal or  
constitutional obligations which it believes  
have been violated or to protect the general  
interest which it views as infringed upon. In  
this vein, there are sectors that have upheld  
that these measures may include intervention in some institutions and/or services of the  
Generalitat, and even the suspension of autonomy. In the event of an extreme reaction,  
we should not discard the possibility of Spain  
resorting to the declaration of one of the exceptional states called for in article 116 of the  
Constitution, potentially in concurrence with  
another of the measures mentioned.

Limits to Spain’s opposition. Spain’s possible opposition does, however, have limits, in  
terms of both the means it may use and their  
likely efficacy in the middle term. In fact, the  
Spanish State could not adopt measures that  
entail a limitation, much less a suspension or  
suppression, of individuals’ rights and freedoms beyond what is provided for in articles  
55 and 116 of the Spanish Constitution. If this  
were the case, perhaps the European Union  
could even intervene through the mechanisms provided for in article 7 of the Treaty of  
the European Union aimed at ensuring Member States’ compliance with the values upon

 

34

which the Union is grounded. This enables the  
EU to react to serious violations or serious and  
permanent violations by the Member States,  
leading this State to be placed under observation and to the potential imposition of sanctions. On the other hand, forcible intervention  
by Spain might pose very difficult and complex problems involving their implementation,  
which would rise in direct proportion to the  
scope and length, which thus might notably  
compromise its efficacy. Likewise, we should  
note that it would be very difficult to suffocate  
the popular will and prevent it from being expressed in the future. Even in the extreme  
case of self-governance being suspended,  
this suspension could not be indefinite, much  
less permanent, and therefore the people’s  
will and the institutional will may be expressed  
yet again once autonomy and the normal  
functioning of the institutions resumed.

On the other hand, regarding the Generalitat’s possibilities for action, once Spain had  
refused and the political impasse merged, it  
could try to force negotiations with Spain by  
appealing to a variety of actors (especially  
international ones, but also from civil society)  
that could serve as mediators with Spain. The  
support of a mobilised civil society might also  
prove to be a decisive factor for this objective.  
Should this pressure to negotiate fail, the alternative left to the Generalitat to implement the  
people’s will to create an independent State  
would be a unilateral declaration of independence.

The alternative of the unilateral declaration of independence: conditions of efficacy.  
However, we must determine what the content  
of a unilateral declaration of independence  
should be, when it should happen and how it  
could be formalised. To be effective, a proclamation of this type can only take place when  
the territory can be effectively governed. This  
means having the basic, indispensable state  
structures in place for this purpose, which  
are mainly those mentioned in the previous  
section. Basically, therefore, this is the same  
structure that should have been prepared dur-

ing the process of negotiating with the Spanish State prior to the creation of the new Catalan State in a scenario of collaboration, yet  
with the difference that in this other scenario  
these structures will have not been able to be  
adequately prepared with enough time and  
in a climate of normality. It is obvious that the  
preparation and level of development of these  
state structures cannot be the same in each  
scenario, but in order for a unilateral declaration or proclamation of independence to be  
effective, these structures must at least have  
sufficient entity and capacity to ensure that  
they can perform their basic functions. Without this condition, the new State could not be  
born effectively.

The unilateral declaration or proclamation of  
independence, in this context, entails the desire to immediately disconnect from the institutions and legal system of the Spanish State  
in such a way that the authority of those institutions and the ties with Spain are no longer  
recognised. From that moment on, the sole  
public authority in Catalonia would be the  
Generalitat, and the legal system applicable  
would only be the one that emanates from the  
will of its institutions (including the international law that is internally recognised). However, proclaiming this will does not necessarily  
mean that it is truly effective, even less so if  
it is done immediately and automatically. It is  
possible that at least for a time, there might be  
a conflict between the two systems such that  
the authorities and systems of each of them  
may vie to impose themselves and gain control. For this reason, the effectiveness of a unilateral declaration of independence is largely  
conditioned by the existence of state structures with the capacity to perform the governing functions over the territory and earn social  
acceptance of their performance.

Finally, we should note that the unilateral declaration or proclamation of independence  
must necessarily entail an end of the desire to  
negotiate with Spain and redirect the situation  
towards the scenario of collaboration. Quite  
to the contrary, but always according to the

 

35

political circumstances, of course, the Gene ralitat should be open to negotiations and,  
what is more, to continuing the efforts to  
achieve the mediation, probably international,  
that would allow this.

On the other hand, in any scenario of noncollaboration, if there has not been a prior  
consultation it would be a good idea to hold  
a referendum to ratify the declaration or proclamation of independence which has been  
produced. There are several examples of this,  
and this option should be born in mind according to the circumstances at the time. The  
possibility that the declaration of independence itself could contain a commitment to hold  
a ratification referendum as soon as possible  
could also be considered. Should this ratification referendum be held, regardless of whether it is announced prior to the proclamation  
of independence or not, it should take place  
before the constituent process per se begins.

In this context, the declaration or proclamation of independence effectively gives rise  
to the constituent process directly, whose  
formal start would be deferred until after the  
referendum ratifying independence is held,  
if it is and if this option wins. The main dif-ference compared to the scenario of collaboration lies in the fact that the period of  
negotiation with Spain would not exist, which  
would also be, as discussed above, a period  
of preparing for the creation of the new State  
and the constituent process that must then  
get underway. The lack of collaboration with  
Spain will hinder – in direct proportion to the  
degree of belligerence it shows – the tasks  
of preparing for this process. However, these  
difficulties should not hinder a minimally sufficient preparation and, more importantly, it  
should prevent all the acts and steps needed  
to launch and develop a constituent process  
that abides by the highest democratic standards from taking place.

 

36

1.4 Third stage in the creation of the new  
Catalan State: From the unilateral proclamation  
or declaration of independence to the approval of  
the Constitution

f) the interim relationship with the Spanish  
State 
g) Catalonia’s relationship with other States  
and supranational and international

agencies (expressing Catalonia’s desire  
to respect international law and to join  
the agencies that organise the international community, and in particular to  
continue participating in the process of  
European integration and to be a member of the European Union).

1.4.1 Constitutional law on the  
constituent process

The legal instrument to regulate the aforementioned issues related to the constituent  
process and the interim regime of the institutional and legal system of Catalonia can only  
be a law passed by the Parliament of Catalonia. Due to its purpose and content, this law  
would act as an interim Constitution and could  
be presented as an interim constitutional law.  
Its constitutional nature entails asking that this  
law be approved with the broadest majority  
possible, even if it is not strictly necessary in  
legal terms.

Indeed, in legal terms no special majority  
would be needed to approve this law, since  
the current Statute naturally contains no provision on a law of this kind. Nor would it be  
possible to challenge it, both because there  
would be no body in which to do so and because there would be no parameter of constitutionality to control it. This law would be an  
act within a new, original constituent process  
which would not be subjected to any previous procedure or to any special majority. Despite this, as stated above, to reinforce its political legitimacy it would be recommendable

Starting at the time when the proclamation of  
independence, in any of the scenarios mentioned above, takes place, there will be a formal detachment from the Spanish legal system and the actual constituent process will get  
underway with the essential goal of providing  
the new State with a constitution. Certainly, in  
a scenario of collaboration, this detachment  
becomes effective when it is agreed upon  
and formally declared, while in a scenario of  
non-collaboration tensions and conflicts might  
arise that make this detachment more problematic and blurry, precisely because the parties may vie to impose their authority and apply their legal system.

Generally speaking, however, after this proclamation is issued, a constituent process  
should get underway (with the possibility, as  
mentioned above, of preceding it with a referendum to ratify independence, if it was unable  
to be held before) with the goal of institutionalising the new State.

From that time on, the process of writing and  
approving the Constitution and the regulatory  
framework to be applied until the Constitution  
enters into force must be regulated, and the  
interim regime must also be determined until  
a complete Catalan legal system is in place.  
In particular, this regulatory framework should  
regulate:

a) the institutional system of Catalonia 
b) the interim system of individuals’ rights  
and freedoms  
c) the interim system of nationality 
d) the interim system on the use of languag-

es

e) the system of succession from the Spanish legal system currently in force to the  
Catalan system

 

37

that it be approved by the broadest majority  
possible.

The interim constitutional law of Catalonia  
would not have to be an especially extensive law which exhaustively regulated all the  
matters which would pertain to it in theory. In  
many of them (such as the institutional system, fundamental rights and others) it would  
refer to the norms that currently exist and are  
in force in Catalonia (such as the Statute of  
Autonomy, the European Human Rights Convention and even the Spanish Constitution),  
introducing only the changes or adaptations  
that were needed. The possible combination  
between new regulation, adaptation and referral to regulations will be thoroughly examined  
below with respect to each of the matters that  
this law should cover.

1.4.2 The constituent procedure

The constituent process must be regulated ex  
novo as there is no regulatory framework currently in force that could be applied to it. The  
comparable precedents are not determinant  
either, beyond showing certain features needed to deem that the process is being conducted according to fully democratic criteria.  
Some of the elements that shaped Spain’s  
constituent process in 1977-1978 could also  
be taken into account. Nonetheless, what is indeed decisive is that this process can be held  
in accordance with the democratic standards  
currently in place, which should provide it with  
the maximum legitimacy both at home and  
abroad.

Based on this criterion, the basic elements of  
the constituent procedure should include:

• Constituent elections. The first step in  
the constituent process should be constituent elections. These elections should  
be called immediately after the proclamation or declaration of independence in accordance with the election laws in force at  
the time. Any change in the election laws  
might generate suspicion and contaminate  
the constituent process. The fact that these

laws (the ones in force at that time) are fully  
democratic facilitates this step and advises  
against making specific changes for the  
occasion, beyond those that are strictly  
necessary due to the detachment from the  
Spanish system (primarily related to the administration and election guarantees).

 –Elections called in this way should be  
exclusively constituent in nature, even  
if the functions of the new Parliament  
should not be limited to drawing up a  
Constitution; instead, it would also have  
to take on the duties of an ordinary legislature.

 –These exclusively constituent elections  
can only be omitted if the plebiscite  
elections have been held shortly before  
the proclamation of independence. In  
this case, largely according to how the  
plebiscite elections turn out, the Parliament can be allowed to start the process of drafting the Constitution of the  
new State after the proclamation of independence. Despite this, the possibility of holding specific, exclusively constituent elections should be carefully  
considered from a political standpoint,  
as this is unquestionably the most appropriate way to launch the constituent  
process.

• The constitutional initiative. Once the  
constituent elections have been held, the  
Parliament has to draw up a Constitution.  
The initiative to start its way through the  
Parliament can be planned in favour of  
both the government and the Parliament,  
although it is more recommendable that  
it comes from the Parliament under the  
guise of the proposal for a joint meeting  
with the participation of all the parliamentary groups.

• Processing through and approval by  
the Parliament. The processing and especially the approval of the Constitution  
should be as stringent as possible, procedurally speaking. Thus, its processing  
through a joint paper, the approval of the  
ruling in committee and finally the approv-

 

38

al of the plenary of the Parliament must all  
be planned. There is no predetermined  
majority to approve the Constitution in  
the Parliament. In theory, this issue could  
be the subject of a decision in the interim  
constitutional law. However, in this sense  
we should note that despite the fact that it  
would clearly be wise for the Constitution  
to be approved by a sweeping majority, we  
should also carefully assess the possibility  
of including a demand for a supermajority  
in the interim constitutional law, since, as  
mentioned with regard to this law, the approval of the new Constitution will not be  
subjected to any pre-established majority as it is a new, original constituent act.  
Thus, it is not necessary for the interim  
constitutional law to require a qualified or  
special majority for the Constitution to be  
approved. Weighing all the circumstances  
with the goal of fostering consensus on the  
fundamental rule, we could consider asking for a supermajority (absolute) to approve it in the Parliament. In any event, the  
ratification referendum to which it must be  
subjected is what provides the democratic legitimacy to the Constitution, beyond  
the parliamentary majority which has approved the draft.

• Formulas for citizen participation. Formulas for direct citizen participation must  
be included in the process of drawing up  
the Constitution, including through remote  
means, parliamentary hearings (with social, professional, economic and cultural  
organisations) and others who may design  
and be considered useful to strengthen  
the citizen participation in this process  
and endow the new Constitution with the  
utmost citizen legitimacy.

• Ratification via referendum. It is wholly  
necessary for the new Constitution to be  
subjected to the ratification of the citizens  
of Catalonia once it has been approved in  
the Parliament. In this referendum, as is  
common in all referenda of this kind, neither a quorum nor any special majority  
would be required.

1.4.3 The interim systems

It is recommendable that the transitory interim  
set-up of the institutional and legal system of  
Catalonia which is included in the interim constitution law be inspired by two basic general  
criteria. The first is to grant the maximum juridical security possible by establishing a calm,  
easy transition of ordinances. Secondly, the  
content of the future Constitution and the decisions by the new powers established through  
this Constitution should not be prejudged.  
This means acting according to a certain principle of continuity with regard to the previous  
ordinances, although naturally we cannot expect the pre-existing situation to remain absolutely unaltered in all respects. The detachment from the Spanish institutional and legal  
system will allow all decisions on the different  
matters to be taken as deemed most suitable,  
such that this would essentially entail an attitude of self-restriction among the Catalan institutions, which would prioritise security and  
would avoid compromising the content of the  
future Constitution and the policies of the new  
public powers that emerge from the elections.

Institutional system. The institutional system  
of Catalonia provided for in the 2006 Statute of  
Autonomy can essentially remain intact on an  
interim basis and only a few adaptations need  
to be introduced, some of which would be automatic (especially regarding limitations on  
the competences of the Catalan institutions,  
which would be eliminated without the need  
for any express declaration or provision),  
while others would be necessary and yet others convenient.

Specifically, the necessary ones should be  
introduced expressly in the interim constitutional law in order to fill the void left by detachment from the Spanish constitutional system.  
Naturally, many voids will be created by this  
detachment, but a decision could be made  
to only fill those that affect issues or elements  
that are strictly necessary for the new institutional system to operate, leaving the others for  
the time when the future Constitution and the

 

39

norms that implement it are approved. These  
elements that must be regulated are:

• The figure of the Head of State, especially in terms of the attribution of the role of  
supreme representation of the new State,  
both at home and abroad. It seems reasonable to attribute this role to the president of the Generalitat on an interim basis  
and to avoid creating a new institution, although naturally the decision taken by the  
future Constitution should prevail.

• The judicial power, including both the organisation and competences of the legal  
bodies as the government of the new judicial power of Catalonia.

• The regulatory bodies. Even if they are not  
institutions per se, their existence means  
that they should be updated in order to  
ensure that the political, economic and  
legal systems operate properly. Just as  
these agencies are essentially part of the  
State today, there should be plans to create them on an interim basis or to attribute  
their functions to bodies within the administration.

• In terms of the suitable adaptations, they  
should be assessed according to the circumstances at the time. These possible  
institutional adaptations might include the  
Council of Statutory Guarantees (to rethink,  
if needed, its functions and the value of its  
rulings on an interim basis, especially with  
regard to control of the laws on the fundamental rights and freedoms). Despite this,  
in virtue of the principle of continuity outlined above, the most reasonable scenario  
would be to introduce the minimum changes and await the new Constitution.

Rights and freedoms. The interim constitutional law should establish the provisions  
needed to ensure people’s rights and freedoms until the new Constitution enters into  
force. Given that the catalogue of rights contained in the current Statute cannot fulfil this  
purpose because of its incomplete, complementary nature with regard to the constitutionally recognised rights, a good alternative

course may be to include the recognised  
rights in the main legal instruments in force in  
Catalonia to date in the new institutional system on an interim basis, especially title 1 of  
the Spanish Constitution (especially article 10  
and chapters II – rights and freedoms – and  
III – guiding principles of social and economic  
policy, while adapting chapter IV on guarantees). The rights recognised in the European  
Human Rights Convention could also be included, without the need to ratify them for  
the time being, as this ratification could be  
delayed because of the need both to have  
the new Constitution and to wait for the new  
Constitution to be accepted in the Council of  
Europe.

Nationality. The system of Catalan nationality  
should be decided by the future Constitution  
and the rules that implement it, but it is necessary to regulate this issue on an interim basis  
since it determines the personal element of the  
new State and the range of people that enjoy  
full political rights and can participate actively  
in the constituent process through suffrage. In  
this sense, we should note that there are no  
pre-established norms, but the principles and  
criteria contained in the 1997 European Convention on Nationality could be taken into account, even if they have not been ratified or  
even signed by most European States, including Spain.

The interim legislation on nationality might be  
based on the rule of Catalan citizenship contained in the current Statute of Autonomy (article 7), which states that Spanish nations who  
reside in a municipality in Catalonia for administrative purposes are Catalan citizens. What  
is more, we should consider the possibility of  
allowing everyone with a real tie to Catalonia  
but who do not reside there at the time when  
independence is proclaimed to gain Catalan  
nationality. This implies at least two possible  
extensions of the initial circle of Catalan nationals: first, Spanish nationals living in Spain  
who were born or who have resided in Catalonia, or who have a Catalan parent (or with  
Catalan ancestry up to the degree deemed

 

40

appropriate); and secondly, Spanish nationals  
living abroad whose residence for administrative purposes has been Catalonia (or who  
have lived there for longer than a given period  
of time) and their descendants, if they have  
kept their Spanish nationality; and others who  
have a Catalan parent or Catalan ancestors to  
the degree deemed appropriate. In these cases, Catalan nationality must be solicited by the  
interested parties.

It would be worthwhile for Catalan law to regulate this matter based on the criterion that  
acquiring Catalan nationality is not conditioned upon giving up Spanish or any other  
nationality. We should expect the Spanish  
State to act reciprocally. In any event, given  
the transcendence and complexity of the issue, which also affects European citizenship,  
it would be wise to reach an agreement on  
nationality with Spain as soon as possible  
that would regulate these issues in accordance with the principles of the Convention  
and criteria of reciprocity.

Naturally, people living in Catalonia with nonCatalan nationality would enjoy full civil, social  
and political rights, with the exception – for  
political rights – of those that are reserved for  
Catalan nationals (primarily the right of suffrage, especially in legislative elections, and  
the right to hold a government job that implies public authority), without prejudice to  
any agreements that might be reached with  
the Spanish State and the status applicable  
depending on their relationship with the European Union.

With regard to foreign, non-Spanish nationals,  
it should be noted that the Catalan laws must  
adopt the appropriate provisions which should  
be grounded upon the general criterion that  
these people can continue enjoying the rights  
they already have (especially regarding work  
and residence).

Language system. The future Constitution  
and the law that implements it would have to  
establish the language system. During the  
constituent period, however, the applicable  
system until the new language system enters  
into force must be determined on an interim  
basis. This system should be inspired by two  
basic criteria: first, granting Catalan full recognition and use in all spheres, and secondly,  
keeping continuity in the uses of Spanish. This  
would entail adopting the proper measures to  
ensure that Catalan is a language of general,  
ordinary use in Catalonia and keeping recognition of and the right to use Spanish. The application of these criteria would mean adopting suitable measures, at least in the sphere of  
the public administrations (access to government jobs and language uses), the administration of justice (especially providing places  
and legal procedures) and education. These  
measures should also be accommodated to  
respect the current system of Aranese, without prejudice to any future developments that  
might apply.

The regulation of this series of systems and relations with the Spanish State, the European  
Union and the international community shall  
be analysed in the following chapters.

 

41

1.5 The Succession of Governance  
and Administrations

well as any necessary adaptations to the new  
reality that may be required. In this respect the  
existence of a new State necessarily means  
that the law of another State, from which the  
new State has separated, can no longer be  
considered applicable without a legislative  
act that declares the continuity of the law’s  
application and validity, not as a result of the  
prior situation, but rather as a legislative act of  
the new State.

The legal proceedings required to deal with  
this issue must have two fundamental objectives: guaranteeing the integrity of the legal  
system and establishing the law in force in  
Catalonia within the new institutional framework derived from the creation of the independent State. In this respect, as an initial  
criterion, it will be necessary to act in accordance with principles of legislative continuity  
and legal certainty. In other words, with the  
necessary adaptations, the large majority of  
the legislation in force at the time of independence will continue to be in effect in the new  
Catalan State. This legislative continuity will  
ensure the basic principle of legal certainty  
for citizens and the protection of their rights,  
as well as responding to the reality of the circumstances: It is impossible to replace an  
entire legal system from one day to the next,  
or even with months to plan the transition. For  
this reason, this is not a reasonable expectation given that, despite the political change of  
sovereignty, the ordinary operation of social  
and economic life will be based on the principle of continuity, without sudden disruptive  
or revolutionary changes. This legal continuity  
will also reinforce the will to ensure economic  
and social stability throughout the national  
transition process which guarantees people’s  
rights and assets.

Until the constitution of the new independent  
State, a full legal system will be in force in Catalonia that is applicable across the entire territory. The existing legislation in Catalonia has  
a dual origin. On the one side, there will be  
the legislation passed by the Catalan Parliament and the autonomous regional and local  
Catalan institutions, within the framework of  
the competences established in the Spanish  
Constitution and the Statute of Autonomy. On  
the other side, also underpinned by the text  
of the Constitution, there will be legislation derived from the central institutions of the Spanish State that are applicable in Catalonia in a  
direct or supplementary way in accordance  
with the distribution of powers in the various  
areas. With relation to this last aspect, purely  
for illustrative purposes and without intending to provide a comprehensive list, it is worth  
specifying here that the sectors of the legal  
system that are regulated by the legislation at  
a state level include the legal regime of fundamental rights, the judiciary system, criminal  
law, commercial law, employment law, procedural law, general economic and credit legislation, and key areas of civil and administrative law. This dual origin of the current law in  
Catalonia means that, when it is founded, the  
new State will have to rule on the validity of  
each of these two types of legal regulations  
because, despite their differences and own  
particular features, both share the same foundation - the Spanish Constitution, which will no  
longer be a higher regulatory parameter in the  
new independent Catalan State.

The new State will therefore have to make a  
legislative decision regarding the law that  
should be considered in effect in Catalonia,  
both in terms of the applicable legal regulations and institutions that must apply them, as

 

42

The technical approach to the issue of the  
succession of governance would be conducted through the inclusion of a specific  
provision for this purpose in the Interim Constitution Law. If the preferable solution described above were not immediately viable,  
for reasons of urgency, a provisional alternative may be the approval of an ad hoc law by  
the Catalan Parliament or even a decree law  
by the Government that will later be subject  
to parliamentary approval. Subsequently, the  
definitive Constitution of the new State, in a  
supplementary or interim provision, will all  
need to make reference to the succession of  
governance in relation to applicable law at  
the time at which the new constitutional text  
comes into effect.

The provision that regulates the succession of  
legal governance must have at least the content proposed below:

“The state and autonomous regional legislation that is in force in Catalonia on the date  
on which its independence is proclaimed  
will remain in effect and applicable until its  
is amended or repealed by legislation approved by the bodies of the new State in all  
aspects that do not contravene the present  
Interim Constitution Law. Any references  
made to the authorities and bodies of the  
Spanish State in the legislation shall be understood to refer to the equivalent Catalan  
authority or body”.

In short, this will involve the minimum regulations in relation to the succession of governance but, with clarity and legal certainty, will  
guarantee the applicability of the regulations  
of various origins and the mechanisms for  
their amendment or repeal, within the framework of the Interim Constitution Law. The content of this provision does not exclude the fact  
that the Interim Constitution Law itself may  
also incorporate express references to certain  
legislative validity, repeals or amendments in  
particularly sensitive areas.

1.5.1 Legislative programme of  
the new State

This legislative programme will initially have to  
be implemented within the framework of the  
regulations of the Interim Constitution Law and,  
subsequently, within the framework of the definitive Catalan Constitution. In this respect, the  
legislative programme will have to respect the  
character of the higher legal regulations of the  
constitutional provisions that will surely affect  
the applicability of the rest of the legislation.  
Within this context, the legislative programme  
must address the following regulatory requirements: perfecting the institutional structure of  
the new State; the progressive approval of new  
Catalan laws that replace those implemented  
by the institutions of the Spanish State in any of  
the various areas of legal governance in which  
they may be required; the adaptation of the law  
approved by the Catalan institutions before the  
creation of the independent State to reflect the  
new situation, if required. Logically, priorities  
will need to be set in each of the general rubrics of this legislative programme, which the  
new Catalan State will have to define gradually  
based on the needs that arise from the new social and political reality.

In the organisational plan, the preparation of  
the legislative programme could be undertaken by a research committee in the parliamentary of government headquarters which would  
include the presence of parliamentary groups,  
government ministers, legal services of the  
legislative authorities and executive bodies,  
professional corporations, specialist institutes  
and the law faculties of Catalan universities.  
The way in which this committee functions  
must be effective and flexible, so that it can  
work specifically by areas or topics of legal  
governance with the occasional collaboration  
of specialists in each particular field.

Lastly, it should be noted that, in order to ensure full respect for the principle of legal certainty throughout the entire process of succession of governance and the progressive  
implementation of the new Catalan law, the

 

43

services of the Parliament of the Official Catalan State Gazette (DOGC), or a collaboration  
between the two, will need to draft charts of  
valid and repealed legislation in all sectors  
of governance. These could be incorporated  
as annexes to particular laws or other regulations, as well as drafting consolidated texts  
of certain regulation in particular and compilations of legislation according to topics.

1.5.2 Succession of regulations  
and the institutions that enforce  
them

In this process of succession of States and  
governance, it seems clear that the institutions of the new Catalan state will directly assume the functions that currently legislation  
assigns to certain institutions of the State, or  
these institutions will simply be abolished. As  
such, the State Inspection Authority in the field  
of education, for instance, would cease to exist, as it would no longer have any sense, as  
would the Regional State Administration and  
the sub-delegations of the government in Catalonia. Meanwhile, in the case of certain bodies that do not have a headquarters in Catalonia, a specific regulatory provision will need to  
be adopted. In this respect, there is obviously  
no Constitutional Tribunal or Supreme Court in  
Catalonia, or the General Judiciary Council,  
the State Council, the Economic and Social  
Council, the Bank of Spain, the National Stock  
Market Committee, the National Market and  
Competitiveness Committee, with their corresponding regulatory powers, to give a few  
examples. However, Catalonia does have the  
Supreme Court of Justice, the Council for Statutory Guarantees, the Public Ombudsman,  
the Public audit Office, the Audiovisual Council of Catalonia, the Legal Advisory Committee, the Catalan Tax Agency, the Catalan Data  
Protection Authority and the Catalan Competition Authority, among others. In all of these  
and similar cases, the institutions of the new  
independent State will have to regulate which  
agencies that already exist in Catalonia under the legislation before independence can

replace agencies of the State with respect to  
their regulatory, fiscal and penal functions, or,  
in other words, with respect to the application  
of laws of Spanish origin that apply in Catalonia.

With respect to all other civil servants, authorities and institutions with a headquarters  
in Catalonia, the regulatory adaptation of the  
succession of governance and succession  
of States involves fewer problems. This could  
be defined as a question of staffing resources  
as, in the case, for instance, of judges, magistrates and public prosecutors, property and  
commercial registrars, judges in charge of the  
civil registry, notaries, and labour and tax inspectors, among others, the civil servants and  
officials required to apply the law in the new  
State already exist and will continue to do so.  
Clearly, the people that perform these specific duties at the time of independence may  
take the personal decision to leave Catalonia.  
However, it must be assumed that substitution  
mechanisms will be found in these circumstances and that the majority of civil servants  
will continue to perform their duties and will  
oversee the application of the law declared to  
be applicable.

1.5.3 Autonomous regional law  
and State law

For the purposes of the conversion of the au-tonomous community of Catalonia into a State,  
the distinction that has been made to date  
between State law and autonomous regional  
law will no longer be applicable, as all of this  
legislation will hold the status of Catalan State  
law. In other words, from the creation of the independent Catalan State, the law in force in  
Catalonia will be unified, although there may  
be a period in which legislation of dual origin  
remains in effect (partly from Catalan institutions and partly from Spanish institutions), until  
such time as the legislation from the Spanish  
State is gradually replaced by new legislation  
passed by the regulatory bodies of independent Catalonia.

 

44

The coexistence of concurrent pieces of legislation regarding the same subject will have to  
be dealt with on a specific basis in the legislative programme of the future Catalan State.  
Within this programme, from the very beginning, express forecasts must be included in  
terms of the succession of governance in several areas, with specific references to declarations of applicability and repeal, as well as  
with respect to the legislative adaptations required in certain sectors. Within the framework  
of this legislative programme, the fragmented  
historical background of the Catalan legislation derived from the institutions of the new  
independent State will progressively have to  
be eliminated, with the full integrity of the legislation being achieved from the moment it is  
amended, probably simultaneously in certain  
areas, both in terms of legislation originating at  
an autonomous regional level and fundamental and general law coming from the Spanish  
State level.

1.5.4 Treaty and Supranational  
Law

Laws arising from international treaties and  
supranational laws play a significant role in  
the legal governance currently in force in Catalonia, both in terms of the system of fundamental rights and freedoms and the economic  
system.

With respect to fundamental rights and freedoms, it should be noted that, in principle, the  
recognition established in international instruments and treaties ratified by Spain will not  
govern Catalan citizens in the new independent Catalan State. In this respect, the application of this legal regime regarding fundamental rights and freedoms to Catalonia would  
require the ratification of the corresponding  
international instruments by the new Catalan  
State, subject to another legal regime derived  
from the succession of States with respect  
to the succession of treaties. In addition, the  
incorporation of treaty law on fundamental  
rights and freedoms from the very beginning

within an independent Catalonia could be implemented through a unilateral act of acceptance or remission by the new State.

With respect to European Community law, the  
issue is more complex as, without entering into  
the possible routes of Catalonia’s integration  
into the European Union which is discussed  
in later sections, the law in force in Catalonia  
at the time of independence has two sources:  
European Union law and internal law (state  
and autonomous regional law) which enacts  
or transposes it. In the former case, the application of the regime would result from belonging to the European Union as a Member  
State, with the application of all of the treaties  
and regulations. Meanwhile, in the second  
case, the application would result from the  
State or autonomous regional legislation that  
has enacted the European Community directives throughout the years and declared to be  
in force by the Interim Constitution Law of the  
new Catalan State and the subsequent regulations. Under these terms, part of European  
Community legislation would remain in force  
in Catalonia, along with the transposition legislation (State and autonomous community  
level) that may exist, whereas the European  
Community legislation that directly applies  
through legislation and other regulations of  
the EU acquis, in principle, would not continue  
in force, according to the same criteria that  
applies to international treaties and supranational laws of international organisations. In  
any case, there would be nothing to prevent  
the competent Catalan institutions from unilaterally pronouncing acts of acceptance or remission, either partially or totally, in relation to  
the aforementioned regulations of European  
Union law.

1.5.5 The Succession of  
Administrations. Principle and  
techniques

The basic principle that must be guaranteed  
in any responsible and purposeful process of  
succession of Administrations is the “principle

 

45

of continuity of public services”, according  
to which the process of substitution must be  
conducted without prejudice to the continuity, regularity and quality of the set of public  
services provided to the general public. In  
fact, the principle of continuity constitutes a  
general principle applicable to both the regulatory field, in which the aim is to ensure that  
all the legislation required to resolve particular  
problems is in place, and in the administrative  
sphere, in which the aim is to ensure that the  
general interests identified and regulated by  
this legislation is fully served. Moreover, in this  
administrative sphere, the maintenance and  
continuity of public services is the very aspect  
that justifies the existence of a service organisation such as public Administration and the  
application of a single regime to this Administration, superseding private law, based on institutions, principles and techniques designed  
to ensure permanence and stability (such  
as the civil service, the public goods regime  
and public procurement, among others). Ideally, what this would mean is that an operation  
such as the substitution of one Administration  
by another is conducted without interruption  
or any other type of disruption for the general  
public that deal with or use the services provided by these Administrations. Achieving this  
objective, which is not at all simple, becomes  
even more complex when the public services  
are not directly provided by the responsible  
Administration, but rather they are commissioned by the Administration to a private contractor or concessionaire.

As well as this principle, which is clearly designed to protect the interests of the general  
public, it is also advisable to address individual rights and interests that may be directly  
affected in the event of a succession of Administrations, in accordance with the values  
and principals of the state of law. In particular,  
it must be ensured that the Administration is  
fully subject to that law, the principle of legal  
certainty and some of its more significant applications with respect to relations between  
the Administration and the general public,

such as respecting the active legal situations  
of citizens (freedoms, subjective rights and  
legitimate interests) and the liability of the Administration for damages caused, whether this  
is in the course of contractual or non-contractual relations.

Configuration of the new Administration.  
An independent State obviously has full liberty to configure its own Administration and, in  
terms of many aspects, it can be constructed  
from scratch. However, in the case of Catalonia, it is equally clear that a succession of  
Administrations would take place between  
the Spanish State and the new Catalan State.  
These two elements mean that it would be  
highly desirable for the Catalan State to have  
an agreement with the Spanish State within  
a framework of cooperation in good faith between the two with respect to the transfer of  
the Administration’s goods and rights of the  
preceding State to the Administration of the  
successive State and the establishment of  
the regulations required to achieve an orderly  
and successful administrative succession in  
terms of all aspects that affect third parties  
(staff providing services to the administration,  
contractors, private individuals who perform  
public duties, citizens that have proceedings  
under way or rights acknowledged by the Administration, relations with other Administrations or with other public and private bodies).  
It would be extremely useful if this framework  
of cooperation and negotiation began during  
the phase prior to the constituent process. In  
other words, the framework should be in place  
between the adoption of the decision in favour  
of creating the new State and the declaration  
of independence. In this way, the initial settling period of the new independent Catalan  
State would be made significantly easier.

Negotiating bodies. In order to establish  
this desirable cooperative framework with  
the Spanish State, the standard procedure  
involves designating a high-ranking political  
representative who, together with a representative of the predecessor State, establishes a  
committee to execute the succession of the

 

46

respective Administrations. This committee  
must have an equal standing in terms of the  
rank of the representatives and establishing  
their regime and their operation. Instead of the  
equal committee option, alternative organisational solutions can be considered that are  
most flexible and specially designed to tackle  
the various issues to be resolved in a specific  
process of succession of States.

The usefulness of internal precedents (the experience of the Mixed Committee of Spanish  
State-Catalan Government Transfers) is undeniable. However, it also has to be set within a  
relative context, as the objective of the succession of States is not a partial succession between public Administrations, such as those  
experienced in Spain in the 20th Century, but  
rather the total and universal succession of  
one Administration by another in the territory  
of the successor State. The objective is not  
political and administrative decentralization  
through the recognition of the autonomy of a  
part of the State, without prejudice to the unity  
of this State, but rather the recognition of the  
independence of a part of the State’s territory  
and, therefore, the effective attribution and  
recognition of its full sovereignty. The position  
of the parties involved could not be the same  
nor could solutions be adopted that presuppose the existence of a plural system of public  
Administrations as, by definition, the objective  
is to enable the separation or independence  
of these Administrations.

Based on this reasoning, the configuration of  
the negotiating bodies must be founded on different base to those established to date. In particular, all of the regulations applicable to the  
negotiation process must be adopted by mutual agreement. The composition and operation  
of the negotiation body (or the other organisational cooperation structures, if applicable)  
has to enable the maximum institutional balance between the two representative bodies. A  
schedule and working plan should be agreed  
and executed rigorously. All of the information  
available must be shared with the maximum  
degree of good faith. The agreements must be

duly negotiated in good faith and both parties  
must make every effort to implement them within the shortest possible time and in accordance  
with the agreed conditions. Within this framework, international supervision and mediation  
cannot be ruled out if the representatives of  
Spain do not cooperate in good faith.

The scenario of non-cooperation. Recourse  
to international mediation must also be considered for the hypothetical situation in which  
the succession of Administrations between  
the Spanish State and the new Catalan State  
took place in the eventual and undesirable  
scenario of non-cooperation between the two  
parties. In this respect, in a case of a disputed  
secession, the negotiations for the succession of Administrations between the Spanish State and the independent Catalan State  
would have to take place within an international framework, and the resulting agreements  
would have the status of an international treaty. As such, non-compliance would result in  
international liability for the party in breach. In  
such a context, Catalonia would have greater  
capacity to negotiate. However, the negotiations would begin, in principle, subsequently  
to the secession taking effect, which cannot  
be seen as positive for the orderly execution  
of the process of succession between Administrations or for the legal certainty of the natu-ral and legal persons affected, particularly the  
public administration staff of the predecessor  
State who would otherwise be transferred to  
the successor State, contractors and concessionaires of this Administration, and for the  
citizens who use the public services.

1.5.6 People providing services  
to the Administration

In Catalonia, the transition of an Administration that is simply autonomous to the Administration of a sovereign State requires a number  
of significant questions to be addressed in relation to public sector workers. In particular, it  
will be necessary to address the need to have  
new staff available to perform the new State

 

47

duties and, therefore the need to resolve the  
situation of people who provide services to the  
State within Catalan territory or who perform  
duties directly related to this territory.

First and foremost, it is obvious that it will not  
be possible to deal with the quantitative and  
qualitative increase in functions that will accompany independence without having far  
more staff than is currently integrated within  
the Administration of the Generalitat (224,635  
people), taking into account the fact that the  
Catalan institutions will not only have to take  
on the functions that the regional Administration of the Spanish State in Catalonia, but also  
all of the functions that it performs at a central  
State level. These new staffing requirements  
may generate public employment opportunities, particularly in the first few years, which  
will require the organisation of successive selection processes to hire new staff.

Incorporation of staff from the current State  
Administration. In the event that Catalonia  
has to address new staffing requirements, as  
we have just seen, it seems logical that a significant proportion of these requirements can  
be fulfilled with the staff that already provide  
these services to Catalonia for the Spanish Ad-ministration (approximately 30,000 people).  
For the Catalan Administration to take on the  
competences that the Spanish Administration  
performed until the declaration of independence, the resources in place to exercise these  
competences and also the employees (civil  
servants, interim staff, permanent and temporary employees) that the Spanish Administration had would need to remain integrated in  
the Catalan Administration. This particularly  
refers to the staff that provided services to the  
regional Administration of the Spanish State in  
Catalonia, without ruling out the option of assimilating a proportional amount of the public employees of the central State’s services  
within the Catalan Administration. This must  
always be based on the understanding that  
all of the employees’ free decisions to accept  
or reject the option of assimilation will be respected at all times.

This conclusion is reinforced both from the  
perspective of the interests of the Catalan institutions, which will be better able to ensure  
the services undertaken is they have experienced professionals, and the personal and  
family interests of this collective, including a  
great number of people in the case of profes-sional based in Catalonia who may have the  
political status of Catalans or have roots and  
strong links in this territory.

The design of this staffing policy must take  
into account the historical precedents available, the heterogeneous nature of the staff who  
provide services in Catalonia, both in terms of  
their functions and the nature and legal regime  
applicable to their links to the Administration,  
the requirements of the human resources management in the new State. Above all, the policy  
design must take into consideration the various scenarios that may take place, in terms of  
whether or not the Spanish State cooperates  
when it comes to implementing the result of a  
democratic declaration of the general public in  
support of the independence of Catalonia.

1.5.7 Regime of the implemented  
administrative acts, the  
proceedings in progress and  
related information.

As well as maintaining the Spanish State legislation in force (with an interim nature and until  
replaced by legislation passed by the institutions of the new independent State), for obvious reasons of legal certainty, it will be necessary to consider the maintenance of the  
validity and effectiveness of the implemented  
acts of this legislation that affect the citizens  
of Catalonia and which has been adopted by  
the Spanish Administration prior to the date on  
which independence becomes effective, particularly in the case of acts that are firm in accordance with the applicable legislation (i.e.  
in all cases in which the affected individuals  
have not lodged administrative or legal appeals within the corresponding period or have  
done so unsuccessfully).

 

48

This solution, which without doubt is the most  
reasonable from the perspective of legal certainty and the protection of the rights acquired,  
cannot have an absolute effect on Catalonia’s  
constituent power or the decisions of the constituted powers. Moreover, insofar as these decision may affect the consolidated situations of  
the individuals involved, it will be necessary to  
make certain distinctions. In that way, sacrificing the rights and interests created could, in  
principle, be indemnified (in accordance with  
the guarantees protected by legal institutions,  
such as compulsory acquisition or the Administration’s financial liability), while it would not  
be necessary to indemnify cases that could  
simply be considered expectations. Meanwhile, distinctions would also have to be made  
between the definition of rights by the new legislator (legal definition that could eventually  
affect the powers inherent to each right more  
significantly), and the expropriation limitation  
of rights which, as a means of suppressing  
rights, can only be considered legitimate if it  
were accompanied by the corresponding indemnity or compensation.

Administrative proceedings in progress.  
With respect to administrative proceedings  
that affect Catalonia and which are in progress  
but, as yet, a ruling has not be made, the general rule will have be that the case is transferred to the Catalan institutions so that these  
institutions can oversee its resolution. This  
transfer will have to take place of the date on  
which independence takes effect, unless the  
institutions of the Spanish State and the Catalan institutions agree a different date. In any  
case, as there is a set timeframe within which  
the legal ruling on these proceedings must be  
made, after which the effects of administrative  
silence (upheld or dismissed) come into force,  
these timing aspects must be taken into account when setting the conditions or the date  
of the transfer. Another aspect to be taken into  
consideration is the autonomous nature of the  
proceedings linked to previous proceedings.

In other words, proceedings with challenged  
rulings or appeals lodged against previous

rulings, as well as proceedings in progress  
subject to enforcement of previous administrative rulings, will have to be considered as  
new and independent proceedings from the  
previous circumstances and be transferred on  
an equal basis to the jurisdiction of the Catalan authorities. In the case of administrative  
appeals, as their objective is to review a ruling that has already been adopted, the regulations in force with respect to transfers state  
that the resolution of these appeals should  
be made by the Administration that made the  
original ruling, even though the final ruling will  
have to be adopted after the transfer of the  
particular function to the Autonomous Community.

However, this last regulation, the logic of  
which is still based within the context in which  
it was passed and has been applied, may be  
replaced by another regulation that is better  
suited to a case of succession of States, by  
which the resolution of the appeal would be  
ruled by the new Catalan Administration. In  
any case, the determination of the applicable  
regime has to take into account the difficulty  
in applying uniform of general rules to such  
a rich and varied reality as the relations between the Administration and the citizens. In  
particular, other aspects that should be taken  
into consideration include the processing status of the proceedings, the legally established  
timeframe for ruling on the proceedings in  
each case and the fact that the inactivity of the  
Spanish Administration may be prejudicial to  
the new Catalan Administration (for instance,  
in the case of the prescription of an action to  
penalize illegal conduct or to demand payment of taxes that have been disputed by the  
taxpayer).

Transfer of documentation. The succession  
of Administrations also involves the transfer of  
all of the documentation related to the administrative records that are filed or open, all of  
which pass over to the jurisdiction of the new  
State. To provide greater guarantees and security within the transfer of information, it is  
usually necessary to draft a detailed inven-

 

49

tory and to formalize the transfer in an act of  
submission and reception that is authorized  
or signed by the competent authorities of  
both Administrations. This procedure has not  
always been rigorously implemented in the  
transfer process of State functions and services to the Generalitat. In general, the obligation  
to transfer the administrative records covers  
all of the files and registers in the possession  
of the predecessor State that affect or are related to the territory of the successor State  
with the corresponding reference to the 1983  
Vienna Convention on the issue, as will be explained in later sections.

1.5.8 The succession of  
contracts

The succession that must be effectuated between the Administration of the predecessor  
State and the Administration of the successor  
State involves an obvious level of complexity  
in the case of contracts signed by the former  
with respect to the execution of its functions:  
the appearance of a third party on the scene,  
a legal or natural person, a designated contractor. By virtue of a bilateral legal negotiation held between with the Administration, the  
contractor has contracted certain obligations  
(to provide or perform). However, they also  
hold certain rights and, principally, the right  
to receive payment in exchange for the services provided to the Administration, whether  
directly, with payment from the Administration,  
or by charging fees paid by the individuals involved.

The succession of contracts, therefore, involves the special condition that it affects a  
party other than the Administration of the two  
States. The contractor has rights acquired  
and protected by the legal system and the responsibility to act as a collaborator required  
by the Administration in the performance of  
the functions attributed to it. In this respect, if it  
does not state its intention to the contrary and  
suitable measures are not taken, the fact that  
another Administration assumes these func-

tions may lead to the sudden annulment of the  
contracts held or their termination or cancellation. This would result in an obligation to indemnify the damages and losses incurred by  
the affected contractors and may have a significantly negative impact on the continuity of  
public services, as it would involve a considerable paralysis of the construction projects in  
progress, the provision of public services and  
the supply process of goods and services required by the Administration and the general  
public. The new independent Catalan State  
could prevent all of these potential negative  
consequences of the succession of contractual relations based on the understanding of  
the complex of the specific cases involved in  
this phenomenon and by adopting the necessary measures to deal with the situation.

Diversity of situations and contractual regulations, and the specific cases of the applicable solutions. The regulation of public  
contracts constitutes a particularly extensive,  
complex and rigorous section of the legal system, which was exponentially intensified when  
Spain joined the European Community (known  
today as the European Union), based on the  
will and determination of the State’s institutions  
to guarantee the free movement of goods, services, capital and people. For the purposes  
of ensuring these freedoms and faced with a  
significant economic reality such as the pub-lic contracting market, successive European  
directives have been passed to guarantee the  
principle of free competition and its essential  
premises: advertising, freedom of access and  
transparency.

The analysis of this regulation (which is principally contained in the consolidated text of  
the Law on Public Sector Contracts, approved  
by Royal Legislative Decree 3/2011, dated  
14th November, hereinafter LCSP) clearly  
highlights the complexity of this sector of the  
legal system, both in terms of the diversity  
of the subjects to which it applies (subjective spheres) and the varied range of types  
of contracts that exist, In addition and above  
all, the sector is complex due to the fact that,

 

50

based on a set of principles and the regulation of general or common bases, the regime  
applicable to each contract has its own particular and significant features depending on  
the contracting public body, whether or not it  
exceeds certain economic thresholds and the  
field or sector to which the contract refers.

The multiple nature of these situations and  
contractual regimes represents an obvious  
added difficulty when establishing the solutions applicable to the succession of the  
Catalan Administration in place of the Spanish State as the contracting party with respect  
to the contracts which affect Catalonia. This  
situation may mean that these solutions can  
not be uniform or standardized in all cases.  
First of all, it will be necessary to distinguish  
between contracts related to goods and services entirely located within Catalan territory  
and contracts that affect this territory but also  
elsewhere. Moreover, the fact that the contracting Administration is the Administration  
of the State or a public body linked to it presents as with various possible scenarios when  
it comes to executing contractual succession.  
This is both because of the different application of contract regulations between one set  
of conditions and another, and because of the  
presence, in the second case, of a subject  
other that the State Administration, with their  
own legal personality and with a legal, financial and budgetary regime that is also different. In effect, within the bodies of the public  
State sector, it will also be necessary to make  
a distinction between the bodies that fall within the category of public Administration for the  
purposes of Spanish contract legislation and  
the bodies that do not.

With respect to the companies awarded the  
contracts, we also often find that, as well as  
the basic case of a single contracted company, there are other contracts executed by  
temporary associations of companies, with  
the particular features of the concession companies, and the common practice of subcontracting to other companies and the legal possibilities of the assignment of the contract.

In terms of the objective aspects of contracting, a distinction must be made between administrative contracts and private contracts  
with the Administration. In the former case,  
further distinction must be made between  
standard administrative contracts and special administrative contracts. The preparation,  
award, effect and termination of administrative  
contracts is subject to the LCSP and additionally by rest of the regulations of Administrative  
law and, it its absence, by the regulations of  
private law. The application of European legislation and the LCSP is more complete and  
clear when the contracts are subject to standardized regulation. This is the case of all collaboration contracts between the public and  
private sectors, and also in the case of all other standard administrative contracts, on the  
condition that they exceed certain economic  
thresholds and that the contracting body  
holds the status of the contracting authority. Private contracts include those by public  
sector entities, organisations and agencies  
that are not considered to be public Administrations, as well as contracts held by public  
Administrations with particular objects, such  
as certain financial services, artistic and literary creations and performances, certain show  
productions, subscriptions to regular publications and databases, and all contracts other  
that the standard administrative contracts. In  
the case of drafting and awarding these contracts, the same regime will apply as in these  
last cases, but their effects and termination  
are governed by private law.

It should also be noted that the legal system  
applicable to the termination of contracts  
closed by the State and regulated by the  
LCSP varies considerably depending on the  
type of contract, as the termination of standard administrative contracts is principally  
governed by the LCSP, while special administrative contracts are governed by their own  
specific regulations and private contracts are  
subject to the regulations of private law.

However, these difficulties increase when we  
take into account the fact that not all contracts

 

51

are primarily governed by the LCSP Therefore, it is necessary to take into consideration  
the regulations contained in Law 31/2007,  
dated 30th October, regarding contracting  
procedures in the water, energy, transport and  
postal service sectors, the object of which is  
the regulation of the contract award procedure for works, supplies and services in the  
case of contracts issued by certain public and  
private organisations determined in the same  
Law and which operate in the aforementioned  
sectors and when the value of these contracts  
exceeds the economic thresholds indicated  
by these and other contracts. Furthermore, it  
should be noted that the Law 24/2011, dated 1st August, regarding public sector contracts in the fields of defence and security and  
the rest of the areas defined in the LCSP as  
“transactions and contracts excluded” from its  
scope (Article 4), which include agreements  
of wills that are subject to analysis by other  
reports drafted by this Council (such as “the  
agreements that the State enters into with other States or with public international law bodies”) and other agreements which will require  
specific references (such as the inter-administration collaboration agreements and also the  
legal transactions by virtue of which the provision of a particular service is commissioned to  
an organisation classified as “a resource and  
a technical service of the Administration”).

Lastly, it should be underlined that the succession of an Administration with respect to  
the contracts entered into with another Administration is not set within a context of relatively stable situations and legal relations  
(such as the ownership of securities and real  
estate property or staff providing services to  
an Administration), but rather within a context  
of an extremely dynamic reality that lasts and  
evolves through time, perhaps several years,  
between the formalization of the contract, the  
execution of its effects and its termination.  
Moreover, contractual succession does not  
only need to take into account the lifetime of  
the contract (its duration, the specific phase  
it is currently in and the incidents that affect

its termination), but also the prior acts of drafting and awarding the contract. In addition, the  
legal relations beyond the termination of the  
contract must also be taken into consideration, besides the state of consequences that  
arise from the jurisdictional processes that  
have been undertaken to resolve disputes  
generated by the contracted parties.

All of these considerations highlight the need  
to be in possession of an inventory of the  
State’s contracts that affect Catalan territory,  
as well as the need to study each of the categories of contract that are identified, as well  
as the specific regime applicable to each of  
the contracts.

Meanwhile, the rights and obligations of a  
contractual nature fit without difficulty within  
the concepts of rights and obligations used  
by international regulators of the secession  
of States. The solution indicated - transferring  
the contracts of the predecessor State to the  
successor State- would also be underpinned  
by the principle of continuity of public services  
and, in general terms, by the principle of legal certainty and the protection of the general  
interests of both territorial collectives and the  
rights of legal and natural persons that have  
been awarded these contracts.

Automatic subrogation. In accordance with  
the aforementioned principles, the starting  
point for executing the succession of the  
State’s contracts must be the automatic subrogation of the rights and obligations of the  
State Administration in the respective contracts. This must include full recognition of the  
rights of the contractors to participate in the  
negotiation of the specific conditions of this  
subrogation and in the adoption of any corresponding adaptation clauses, as well as the  
right to indemnity for any damages that may  
be incurred as a result, on the condition that  
they can be duly accredited, in accordance  
with the agreements and commitments made.  
In the same respect, the Report 3/2014 of the  
Administrative Contracting Advisory Board of  
the Generalitat of Catalonia (Permanent Com-

 

52

mittee), dated 27th February, analyses the  
possibility of the subrogation of a public sector entity, organisation or body with respect  
to its status as the legal contracting authority of another public sector entity, organisation or body, in the case of contracts in force  
or signed by this body. It consider the transfer the optional hearing of the contract in the  
case of the subrogation as a matter of law of a  
public sector entity, organisation or body with  
respect to its status as the legal contracting  
authority of another public sector entity, organisation or body. This subrogation, for the  
purposes of our current interests, could be assimilated within the subrogation derived from  
the success of States in a contract.

Based on these starting principles and rules  
(automatic and general subrogation with respect to the rights acquired by contractors,  
legal standing and hearing of the contractors in terms of setting the conditions of the  
subrogation as necessary and, if required,

indemnity for the accredited damages and  
losses incurred), it is necessary to consider  
the general regime of each category of affect-ed contracts, as well as the specific characteristics and clauses of the contracts in force  
and, in particular, the contracts that involve  
the greatest legal and financial complexity.  
Based on the result of this individualized assessment, within the scope of the freedom of  
contract between the predecessor State and  
the successor State, in accordance with the  
principle of protecting the rights and interests  
of the contractors and taking into account the  
powers that contract law recognises for the  
affected parties, there should not be any obstacles to excluding certain contracts from the  
regulation of the automatic subrogation, which  
would enable other solutions to be selected,  
such as early termination of the contract or the  
reclamation of the contracted work or services  
by the successor State in accordance with the  
regulations of predecessor State.

 

53

1.6 The distribution of assets and liabilities  
with the Spanish State

1983 Vienna Convention, which regulates the  
distribution of the State’s assets and liabilities,  
never came into force.

However, the lack of validity of the 1983 Vienna Convention does not prevent the parties  
involved in a particular dispute from voluntarily agreeing to apply the Convention (in whole  
or in part) to resolve their specific case. Alternatively, they could use the Convention as a  
model. It is important to take into consideration the fact that the dissolution of the former  
Soviet Union, Czechoslovakia and Yugoslavia  
has, in practice, contributed to the consolidation of some of the regulations established in  
this Convention.

The majority of its regulations are default rules  
and, as such, they are not legally binding and  
it is therefore possible to enter into a contrary  
agreement. In fact, in the case of succession  
of States, the will of the parties prevails. As  
such, the provisions of the 1983 Vienna Convention can be applied in all areas in which an  
agreement has not been reached.

Within the legal framework of the successions  
of States, the resolution ‘Guiding principles relating the succession of States in respect to  
property and debts’ adopted by the Institute of  
International Law in 2001 in its session in Vancouver. The importance of this documents is  
rooted in the fact that the doctrine compiles all  
of the international practices employed during  
the 1990s in the cases of succession of States  
that took place in Central and Eastern Europe.  
As such, in practice, it consolidates many of  
the provisions of the 1983 Vienna Convention.

Therefore, in terms of the mechanisms and the  
framework for the negotiations, an initial ap-

There is a set of assets and rights that the  
Spanish State would have to transfer to the  
new State, as well as a set of liabilities and obligations that the new State will have to undertake. However, in relation to the succession of  
States, this issue is not strongly regulated from  
the perspective of international law. There are  
few regulations that are legally binding and  
there are hardly any treaties in place. The  
small number that do exist have been ratified  
by few countries.

It must therefore be accepted that, when executing this distribution of assets and liabilities with the Spanish State, it is the will of the  
two States involved that prevails, as well as  
the will of the creditors and the international  
economic and monetary authorities. All of this  
is based on the fact that there are international  
regulations, principles and customs that are  
of great value in terms of providing guidance  
throughout these negotiations.

1.6.1 The legal framework

The International Law Commission of the  
United Nations has undertaken various codification projects related to the succession of  
States. Nevertheless, the United Nations Assembly has only adopted two of these projects as international codification treaties. The  
first of these is the 1978 Vienna Convention on  
the succession of States with respect to international treaties. The second is the 1983 Vienna Convention on the distribution of the State’s  
assets, liabilities and records in the event of  
the succession of States. Technically, only the  
first of these conventions took effect. However,  
given the low number of ratifications obtained,  
the legal force of these treaties is disputed by  
the majority of the doctrine. Meanwhile, the

 

54

proach could involve a negotiation of assets  
and liabilities prior to the date that the secession takes effect, rather than a negotiation  
subsequent to secession. In the former case,  
the negotiations would be concluded within  
the Spanish legal and political framework, as  
the parties would agree to use the international legal framework and the recognition of the  
secession would be conditional on an agreement being achieved between the parties.  
As well as political stability, the negotiation of  
assets and liabilities prior to secession would  
ensure greater legal certainty throughout the  
process and would neutralize the potential  
consequences of the process on international  
markets.

The distribution of assets and liabilities subsequent to the date on which secession takes  
effect may generate a level of uncertainty on  
international markets. Nevertheless, negotiations subsequent to secession could be  
overseen by international mediators in accordance with the international that applies  
in the field. Reaching an agreement in terms  
of the distribution of the State’s property and  
debts within the international framework has  
certain advantages that must also be evaluated. These include the fact that the agreement  
would have to be ratified using a treaty instrument, meaning that it would have the status of  
an international treaty. Firstly, this would mean  
that non-compliance with the treaty would  
result in international liability for the party in  
breach. Secondly, it would grant the ability to  
annul the agreements in the event of threats  
and coercion by one of the States, as established in the 1969 Vienna Convention on International Treaty Law.

The international legal framework route is the  
option that is being taken into account in this  
case, in light of the expected difficulty to be  
able to negotiate before secession and in view  
of the fact that the majority of the negotiations  
regarding the distribution of assets and liabilities in the case of the succession of the State  
would take place on an international level.

In practice, the negotiations are resolved on  
various fronts between: predecessor State,  
the successor State, the international monetary authorities (the International Monetary  
Fund, the World Bank), the European Union,  
for example, through the Central European  
Bank, and certain agencies that represent the  
interests of the creditors. These agencies are  
grouped in the Paris Club and London Club,  
as they are known, according to the public or  
private nature of the loans.

There are normally two negotiation processes  
that run in parallel. The first takes place within  
the framework of the Paris Club. This is not an  
international organisation, but rather an informal forum in which the creditor States are represented with the aim of renegotiating the conditions of the debt at payment with the debtors.  
The decisions are taken by consensus. The  
second line of negotiations takes place within  
the framework of the London Club. As in the  
previous case, neither is this an international  
organisation, but rather a forum that brings  
together the creditor financial institutions of  
the States’ debt. At the Club, negotiations are  
held with respect to the transfer of public debt  
with private institutions, primarily belonging to  
the banking system.

The entire process has to be based on a set of  
clear principles, as listed below:

Principle of proportionality. An equitable  
distribution may be based on the demographic weighting of the seceding territory  
as a proportion of the whole territory of the  
original state, with the aim of ensuring that  
some citizens do not bear more of the debt  
than others. In international practice, other  
parameters have also been used, such as  
economic weighting in terms of GDP of  
the seceding territory with respect to the  
whole State’s GDP. Other criteria to be taken into consideration include the proportion of central government expenditure in  
the seceding territory with respect to the  
original State as a whole.

Principle of equity. This refers to the need  
to maintain consistency in the balance be-

 

55

tween the distribution of assets and the  
distribution of liabilities between the two  
States. Therefore, by undertaking part of  
the Spanish State’s debt, Catalonia would  
be entitled to the equivalent positive balance: a) the transfer of assets associated  
to the debt undertaken by Catalonia; b) the  
transfer of an equivalent part of the State’s  
assets that are not subject to the ascription  
to a particular territory.

Principle of territoriality. The Catalan State  
would have to assume the debt of the Generalitat of Catalonia and its city councils,  
but it would not have to assume the debt of  
territorial bodies outside its territory.

Principle of transparency. This principle,  
contained in Article 2 of the United Nations  
Charter, is considered by the entire doctrine to be a structural principle of international law. It implies the acceptance of the  
negotiating process, the will to reach an  
agreement and the commitment to comply  
with the agreement.

Another issue to be resolved in that the 1983  
Vienna Convention does not establish any criteria for determining the effective date of succession. The contemporary international practices vary greatly. In some cases, the date  
used is the date on which the predecessor  
State stops perform sovereign functions in the  
territory of the seceding State. In other cases,  
the date of the declaration of independence  
is used as the effective date of succession.  
Other cases have used the date on which the  
new Constitution is adopted or the date on  
which the results of the referendum for selfdetermination were published (Bosnia, 2nd  
March 1992). Meanwhile, in other cases, the  
effective date of succession is taken to be the  
date on which the authorities of the seceding  
territory stop contributing to the State treasury,  
or the date on which the independence of the  
new State if formally recognized by the predecessor State. In some more complex cases, the succession of States is considered to  
take place over a certain period of time. In any  
case, the effective date of succession has to

be adopted by consensus between the parties and the mediators.

1.6.2 Public debt and obligations  
of the State

When planning a process of distribution of  
assets and liabilities between two States, the  
distribution of the public debt and liabilities  
of the State obviously take on a particular  
significance. As well as the economic and financial consequences of this distribution for  
both States, the international implications that  
derive from this process must also be considered.

Public debt can be seen as all of the debt contracted by any public authority from any public or private, legal or natural person. In this  
respect, a distinction can be made between  
local debt and central government debt.

With respect to local debt, the Catalan state  
would only have to assume the debt of the  
Generalitat, provincial councils, county councils, metropolitan entities and town and city  
councils in Catalonia.

In terms of the public debt of the central Government, it can be divided into debt that can  
be ascribed to a particular territory and debt  
that cannot. The debt that can be ascribed to  
a particular territory is the debt contracted by  
the central Government or by any of its agencies in charge of the general State budgets,  
for conducting work projects, services and investments in a specific territory of the State. In  
principle, the debt contracted by the Spanish  
State that is attributable to a particular territory  
for work projects and investments outside of  
Catalan territory cannot be transferred to the  
Catalan State.

However, a distinction is required between the  
debt contracted to make the investment possible and the debts or liabilities contracted by  
the managing body of each infrastructure with  
respect to its suppliers and employees. In the  
former case, the debt associated with these

 

56

investments can only be considered attributable to the predecessor State, although the  
debt with respect to suppliers and the contractual obligations associated with the management and exploitation of each infrastructure may be attributed to the successor State.

The debt that cannot be ascribed to a particular territory is all debt that is not attributable to  
a specific territory. This debt arises from satisfying the State’s needs for general services.  
In other words, this debt is contracted to provide common services to all Spanish citizens,  
such as the debts incurred by the Ministries  
of Defence, Foreign Affairs and Justice, for instance.

In the case of debt that is not attributable to  
a particular territory, it will therefore be necessary to negotiate the applicable criteria for  
proportionality in advance. The demographic  
criterion would be the most equitable way to  
distribute the liabilities among the citizens of  
all of the territories. Nevertheless, this could  
be weighted according to elements with economic weighting or proportion of the prior expenditure and investment of the State. In any  
case, proportionality does not effect the State  
as a whole, but rather only the debt entries  
contracted by the central State Administration  
that is not attributable to a territory.

The distribution of debt not attributable to a  
territory has various balancing items. Firstly,  
the transfer from the predecessor State to the  
successor State of all of the property and services linked to the debt assumed by the latter.  
In the event that the Spanish State did not want  
to transfer some of its assets (and until this  
transfer takes effect), the Catalan State would  
be under no obligation to assume its debt and  
the corresponding obligations. Secondly, as  
well as the transfer of the assets associated  
with the debt assumed by the Catalan State,  
the Spanish State would have to transfer to  
Catalonia a proportional part of its property  
and assets that cannot be attributed to a territory, in line with the same criteria agreed for  
the distribution of the debt.

With respect to the transfer of the predecessor State’s debt with international organisations and despite the lack of regulation by  
international law, in principle, there would be  
no possibility of this debt being transferred to  
the Catalan State, at least until the new State  
were considered part of the organisation as a  
fully-fledged member. In addition, it would be  
necessary to consider the possibility of distinguishing between organisation’s to which  
Catalonia would have direct admission and  
on other cases in which Catalonia will have to  
pass through the admissions process as an  
outsider State to gain admission. In the former  
case, a proportionality criterion could be applied by which the Catalan State would have  
to assume part of the Spanish State’s debt  
with a certain organisation. In the latter case, if  
the non-seceding Spanish territories are considered to be the only heirs and upholders of  
the legal personality of the Spanish State, the  
Spanish State will have to assume the entire  
debt with each organisation.

Another part of the predecessor State’s debt  
that may be included in the negotiations is  
the debt contracted by the central Government with the Generalitat of Catalonia. In a  
scenario in which the Spanish State does not  
fulfil its financial and investment commitments  
with Catalonia, especially once the process  
of secession is under way, whether this noncompliance is a means of economic coercion  
or a result of the Spain’s economic situation,  
the Catalan State would have the legitimate  
right to demand a reduction of the debt of the  
Spanish State that it had to assume as a consequence of the succession of States in an  
equivalent quantity.

In terms of debts with suppliers, in principle,  
each State would have to assume the debts  
contracted by corporations (RTVE, ADIF,  
AENA, etc.) with suppliers in a way that is equitable with the assumption of ownership and  
assets.

 

57

1.6.3 Assets and rights of the  
State

The distribution of the State’s assets and rights  
is another fundamental process that must be  
undertaken when executing the distribution  
of assets and liabilities between two States.  
This is a highly delicate process that is also  
extremely visible, as it affects public real estate and services that are widely used by the  
general public, for example.

As in the case of debt, a distinction can be  
made between assets that can be attributed  
to a territory and assets that cannot. In the former case, it should be noted that the public  
property located in the seceding territory are  
transferred to the successor State directly and  
without considerations, as established in Article 2.2.a of the 1983 Vienna Convention. Although not specified by the Convention, this  
includes all types of State assets and property, such as buildings, services and public  
corporations.

Property that cannot be attributed to a territory included all of the assets and resources  
of entities that are common to all Spaniards  
(the Bank of Spain’s reserves, current accounts, ownership of public and private companies, national heritage, etc.). In principle,  
they would have to be transferred in the same  
proportion established for transfer of debt not  
attributable to a territory, as established in  
the principle of equity mentioned at the start  
of this report. If this were not the case, other  
corresponding considerations could be demanded.

Extra-territory assets include both public  
property located in third party States (embassies, consulates, offices of public institutions  
and agencies, military and scientific bases, oil  
platforms and other structures located at sea,  
etc.) and assets in extraterrestrial locations,  
such as artificial satellites and space installations. Some of the doctrine considers that  
extra-territorial assets should be distributed  
equitably between the predecessor State and

the successor State. In any case, the distribution must be favourably agreed by the State  
in which the predecessor State’s asset subject  
to transfer to the successor State is located.

Current accounts and other financial instruments (the Spanish State currently has 4,823  
current accounts in different banking institutions around the world. 423 in the Bank of  
Spain, 3,163 in Spanish banking institutions  
and 1,237 in foreign institutions) can be classified as State assets not attributable to a territory. As such, they would have to be transferred  
in accordance with the proportionality criteria  
in a way that is equitable with the transfer of  
State debt not attributable to a territory. However, the current accounts of some public entities belong to the territory’s public Administration institutions, such as provincial councils,  
and these may be considered attributable to  
a territory, as they are dependent on a territorial public institution and are subject to needs  
related to a certain territory.

Spain’s position as an international creditor with respect to third-party countries may  
also be the object of distribution in the event  
of a succession of States. In other words, the  
parties could distribute the public debt contracted with Spain by other subjects of International Law. In such a case, this would not  
be considered an asset not attributable to a  
territory, as it is a financial right. Therefore, it  
would be possible to opt for the same proportionality used to determine the distribution of  
the State’s debt not attributable to a territory.

1.6.4 Historical, artistic and  
cultural heritage

The transfer of the State’s assets in cases of the  
succession of States also includes archives,  
cultural assets and national heritage. In principle, the predecessor State has to transfer the  
following elements to the successor States: a)  
archives that belong to the seceding territory;  
b) archives that make explicit reference to the  
territory, its history or population; c) archives

 

58

required for the territory’s institutions and public services to operate properly; and d) the archives and document repositories with national co-authorship with the successor State. This  
includes all types of tax authority databases  
regarding taxpayers, electoral censuses, civil  
register, criminal conviction register, hospital,  
police, Social Security and transport archives,  
document repositories, historical archives,  
open files pending administrative ruling, etc.  
In principle, the transfer of archives must not  
involve any equivalent consideration in return.

The distribution of national heritage is also  
negotiated. This includes property of national  
interest, moveable assets registered on inventories and all other Spanish heritage, including  
all moveable and real estate assets of artistic,  
historical, paleontological, archaeological, ethnographic, scientific and technical interest that  
are not registered on a general inventory. In accordance with the provisions of Articles 28.7,  
30.3 and 30.4 of the 1983 Vienna Convention,  
in principal, the transfer of cultural property  
and national heritage must be governed by the  
historical contribution of each territory i the predecessor State. However, as in the case of the  
State archives, other criteria may also be applied, such as the origin of the artist and the  
most explicit reference of their work.

1.6.5 Natural resources

Another crucial aspect of any process of distribution of assets and liabilities between two  
States is the separation of natural resources.  
This is particularly important with respect to  
water resources, but also in relation to air-

space and radio-electric space, which involve  
consequences for public telecommunications  
services, for instance.

In the case of water resources, a distinction  
should be made between border watercourses and successive watercourses. No party  
can claim exclusive sovereignty of shared  
hydraulic and energy resources. Nevertheless, it should be clarified that joint management does not affect only the part of the hydrographic basin of the seceding territory, but  
rather entire hydrographic basin of shared  
bodies of water (such as the Ebro River). Joint  
management may be conducted through the  
creation of bilateral river committees.

The successor State automatically inherits all  
of the sovereign rights over areas with maritime sovereignty, without any equivalent consideration in return: inland waterways, territorial seas, the exclusive economic zone, sea  
beds, etc., as well as sovereign rights over  
adjacent airspace and radio-electric space  
in the vertical plane. This also involves inheriting the obligations that the State with territorial sovereignty has in relation to these spaces  
1982 Montego Bay United Nations Convention on the Law of the Sea.

1.6.6 Private property and debts

Normally, outside of the scope of decolonization, the contractual obligations of the predecessor State and private organisations regarding the assignment and exploitation of  
resources of the successor State are compulsorily transferred.

 

59

1.7 Quantitative variation in the budgets  
of the Generalitat, after the new Catalan State  
is achieved

lic services that must assumed by the Catalan  
State will be maintained with the same level of  
expenditure currently allocated by the Spain;  
b) the quantification of the additional public  
expenditure will vary depending on the year  
and the States economic policy; c) it assumes  
that the same fiscal system and level of tax  
burden will be maintained in line with those  
that currently exist in the Spanish State.

The quantification is made with reference to  
2011, as the reports of the tax balance sheet  
of Catalonia with the central public sector  
are currently only available until that year. As  
mentioned, the analysis conducted is based  
on the information provided in the aforementioned reports.

In this way, the calculation being made here  
is equivalent to quantifying the additional expenditure and revenue that the Generalitat  
budget would have had in 2011, had Catalonia been an independent State and: a) it had  
provided the new public services that it had  
assumed as a State at the same levels of public spending as the Spanish State did; b) it  
had imposed the same taxes and tax burden  
as the Spanish State did during the period under analysis.

1.7.1 Additional expenditure

In line with the methodology generally applied  
internationally, the tax balance sheet uses two  
approaches to quantify the public spending of  
the central public sector in Catalonia at a territorial level: the burden-benefit flow and the  
monetary flow approaches. The burden-benefit  
approach attributes the expenditure in the territory in which the beneficiary lives, regardless of  
where the public services is provided or where

The independence of Catalonia would have  
significant effects on the budget of the Generalitat. This would primarily be because the  
Generalitat would have to assume new competences, create State structures that do not  
currently exist and reinforce the current administrative structures. All of this will involve  
more public spending. Secondly, the budget  
would also be modified in terms of revenues,  
as tax revenues would increase due to the fact  
that the contribution that Catalans currently  
make to the Spain would remain in Catalonia.

One way of quantifying these additional expenses and revenues would involve using the  
information regarding the tax balance sheet  
of Catalonia with the central public sector  
authorities that is regularly calculated by the  
Government of the Generalitat. In one respect,  
the tax balance sheet quantifies the expendi-ture that the Spanish State undertakes in Catalonia corresponding to the competences of  
the central authorities, such as the administration of Social Security (payment of pensions  
and unemployment benefit, among others) or  
foreign affairs, which the new State will have to  
assume. As such, these figures can be used  
as an indicator of the new competences assumed by the seceding State. In another respect, the tax balance sheet also indicates  
the tax revenue that Catalonia would have as  
a State, on the condition that a part did not revert to the Spanish State.

While using the tax balance sheet is a relatively simple method of ascertaining the additional expenditure and revenue that would form  
part of the Generalitat budget in the event of  
an independent Catalonia, the adoption of this  
method has the following drawbacks: a) it is  
based on the assumption that the new pub-

 

60

the investment is made. In contrast, the monetary flow approach attributes the expenditure  
to the territory in which this expenditure takes  
place, regardless of the geographical location  
of the end beneficiaries of this decision.

Using the monetary flow method, with the exception of defence and foreign policy, in which  
cases the expenditure attributable to the territory is calculated by applying the burdenbenefit approach and using the data from the  
budget settlements of the State, autonomous  
institutions, state agencies and public institutions, as well as the Social Security system  
and public corporations, the total additional  
expenditure that the Generalitat would have  
had to assume in 2011 if Catalonia had been  
an independent State is 39.507 billion euros.  
Three quarters of this expenditure (74.07%)  
correspond to the Social Security system and  
its economic benefits. In terms of quantity,  
the second most significant proportion of expenditure would be the transfers to local governments (6.38%), followed by debt interest  
repayments (6.07%). These three items alone  
account for 87% of the additional expenditure.  
These would be followed, in terms of monetary volume, by spending on defence (3.05%)  
on the assumption that the new State had  
armed forces and defence expenditure equivalent to Spain. The rest of the expenditure  
programmes and items are less significant in  
quantitative terms. It should be highlighted  
that the new State would not necessarily have  
to reach these levels of spending, as they correspond to the economic policy of the current  
Spanish Government. Nevertheless, this assumption is made to enable an approximate  
calculation of the volume of additional spending of the new State with respect to current  
public expenditure.

1.7.2 Additional revenues

If the independent Catalan State maintained  
the same fiscal system and tax burden that is  
currently applied in the territory as part of the  
Spanish State, the additional revenues that

the Generalitat would have would be the same  
as the tax revenue generated in Catalonia that  
currently end up in the Spanish treasury, minus the transfers received by the central public sector.

The two approaches for calculating the fiscal  
balances account for the tax revenues of the  
central public sector in Catalonia in different  
ways. The burden-benefit approach accounts  
for the revenues in the territory in which the  
taxpayers who eventually bear the burden  
live. The monetary flow method accounts for  
the revenues in the territory in which the economic capacity subject to the tax is located. In  
other words, this focuses on where the taxable  
object is located, regardless of where the taxpayers who eventually bear the burden live.

Accounting for the additional revenues that  
the Generalitat would have in the event of  
independence is based on the revenues recorded in the tax balance sheet in accordance with the monetary flow approach, as this  
is the best calculation of the tax revenues that  
could be generated in Catalonia in line with  
its levels of income, consumer spending and  
wealth. This is regardless of who eventually  
bears the tax burden and where the tax collection takes place.

The additional revenues that the Generalitat  
would have had in 2011 if it had been an independent State and had maintained the revenue structure, fiscal system and tax burden  
that the Spanish State has that year, the revenues would have been 45.317 billion euros,  
54.29% of which correspond to the revenues  
from Social Security contributions and 41.49%  
from taxes. All other revenues are only of residual importance.

1.7.3 Fiscal surplus of the  
Generalitat

Once the additional public expenditure and  
revenue of an independent Catalonia have  
been quantified, the effects that independence would have on the Generalitat budget

 

61

can be analysed. It should be noted that the  
revenues are significantly higher that the expenditure accounted for, resulting in a fiscal  
surplus of 5.81 billion euros for the treasury of  
the Generalitat.

In fact, the previous fiscal surplus would have  
been even bigger, as it would have to take account of the benefit of no longer participating  
in the amortization of the debt that results from  
the Spanish budget deficit, which was significant in 2011, at 3.58% of GDP. In that year, the  
aforementioned benefit is estimated at about  
7.184 billion euros which, added to the 5.81  
billion mentioned above, would leave a fiscal  
surplus of 12.994 billion euros.

A further aspect to be taken into consideration  
is that an independent Catalonia would have  
to contribute to the international organisations  
of which it forms part (IMF, EU, etc.). The most  
significant of these in terms of quantity is the  
contribution to the EU, which is around 1.4 billion euros. Therefore, this contribution would  
have to be subtracted from the previous fiscal surplus, which would result in a fiscal surplus of 11.591 billion euros, which represents  
5.95% of GDP.

Lastly, it should be noted that the previous  
fiscal surplus is a initial approximation of the  
situation in an independent Catalan State  
bearing in mind, as mentioned above, that the  
analysis is based on a set of faith restrictive  
assumptions. Despite these restrictions, the  
analysis conducted here may be a reasonable  
approximation of the fiscal surplus that would  
result from the independence of Catalonia for  
the Tax Administration of the Generalitat. In  
addition, if the new revenues and expenditure analysed were added to the budget of the  
Generalitat, it is clear that this budget, which  
is currently in deficit, would shift into surplus.

1.7.4 Considerations for the first  
few months

The analysis conducted so far has highlighted the fact that the Generalitat would be

completely viable after the independence of  
Catalonia in fiscal and financial terms, despite  
having to assume new competences, some  
of which are of such a significant scale as the  
Social Security system. However, this viability  
has been analysed from the perspective of a  
scenario in which Catalonia has become a fully independent State. In other words, the analysis is set within a context at the end of the  
independence process, in which the Generalitat would already have fully assumed all of the  
competences and obligations of a State, with  
the corresponding provision of public services, and its tax agency would have fully implemented its tax collection functions.

Forecasts should also be made for the financing of the Generalitat in the initial period of independence. In this respect, it is important to  
take in to account the circumstances in which  
this independence takes place. If independence were achieved after an agreement with  
Spain, there would be no problem with respect  
to financing the Generalitat in the early stages  
of independence, as the new competences  
that would have to be assumed would be accompanied by the corresponding resources  
from the Spanish State tax revenue currently  
collected in Catalonia, which would be transferred to the new State.

The situation may be different if Catalan independence were achieved without the agreement of Spain and a belligerent position were  
adopted by the Spanish State. In such circumstances, the financing of the Generalitat in the  
first few months of independence must be taken into consideration, as the new State’s tax  
agency may not yet have achieved full performance in terms of tax collection.

It has been estimated that, during the first few  
months of independence without agreement  
from Spain, the Government of the Generalitat would need monthly financing of 4.5-5 billion euros, which would be required to pay the  
salaries of civil servants, pensions, unemployment benefit and the current spending of the  
Generalitat.

 

62

As such, there may be a brief interim period  
in which the Generalitat would have to resort  
to other non-taxation sources of financing to  
cover this expenditure. The possible alternative channels for financing the Generalitat are  
as follows:

• Taking out loans with Catalan or foreign  
financial institutions. Catalonia would be  
a State with relatively few debts as, without having reached an agreement with  
the Spanish State, the new State would  
not have assumed part of the predecessor State’s debt. As a consequence, the  
Generalitat would be in a good position to  
obtain foreign financing. As such, loans  
could be taken out using the new State’s  
assets (ports, real estate, airports, etc.) as  
collateral.

• Public debt issues by the Central Bank of  
Catalonia.  
• Issuing bonds for public subscription.

• Issuing tradable bonds for outstanding  
payable taxes with the aim of advancing  
the fiscal resources of the Catalan citizens.

In any case, it should be highlighted that the  
basic source of financing has to come from  
taxation resources, and any alternative sources of financing must be temporary in nature  
and be applied for a brief period. As such, it  
is crucial that the Government of the Generalitat implements the strategies and measures  
required to prepare the Catalan Tax Agency  
during the period of transition so that, in a context of tax sovereignty, this Administration can  
operate at full capacity as soon as possible.

 

2 The organisation of Catalonia  
as a new State

 

65

2.1 Economics and Finance

Moreover, the impact of these effects on the  
Catalan economy, thanks to the creation of  
employment and business activity would also  
have a positive impact on tax revenue. For example, the increase in employment would increase revenue from personal income tax as  
more people would be earning and also from  
VAT due to the fact of increased consumer  
spending. Current estimates in Spain indicate  
that an increase of 1% of GDP results in an increase in tax revenues by around 1.2%.

In addition to the above economic impact,  
the new state would also gain by being able  
to decide its economic policies and tailor  
them to the country’s needs. This is an intangible benefit that would have a positive bearing on economic growth. The fact that an independent Catalonia could map out its own  
policies (tax, labour, finance, infrastructure,  
education, etc.) would have a direct impact  
on Catalan GDP.

2.1.2 Monetary policy. The euro

One of the main powers and responsibilities  
of a sovereign state is establishing and managing a monetary system. This includes the  
determination of the currency to be used as  
a means of payment and unit of account, as  
well as the definition of monetary policy and  
its implementation.

In this field, a possible independent Catalan  
state would have two main options: to have its  
own monetary system or keep the euro as a  
currency.

The value of keeping the euro as a common  
use currency in a possible independent Catalan state is obvious. It would be an option

2.1.1 Fiscal and financial viability

The independence of Catalonia, in addition to  
representing the disappearance of the fiscal  
deficit (8% of Catalan GDP on average, about  
16 billion euros), would result in a clear benefit for the Generalitat (Government of Catalonia), which would have additional resources  
each year (fiscal gain) of about 6% of Catalan  
GDP. This would have additional effects on the  
economy that should not be underestimated.  
These effects would be caused by the impact  
of the fiscal gain and also the additional costs  
which the Generalitat would incur.

In economic terms, an increase in consumption (private and public), investment or public spending is regarded as a boost to GDP,  
which is known as the multiplier effect.

Thus the fiscal gain of independence might  
have a significant multiplier effect on the Catalan economy, as resources from it could be  
used for public spending increases and/or tax  
cuts. This would have an immediate positive effect on consumption and investment. Furthermore, the rise in public spending might lead to  
an increase in the number of public employees, which would boost the employment rate.

In addition to the effect of the fiscal gain, the  
very impact of the additional spending that  
the Catalan Government would experience  
would also most likely have a positive effect on the economy. This impact would not  
be seen in spending on transfers to specific  
groups, since in this case there would only be  
a change in the payer government. However,  
setting up new state structures such as a central bank or regulatory bodies could have a  
positive effect on highly qualified employment.

 

66

even though the new state would be outside  
the Eurosystem and/or the Eurozone. In this  
scenario, we must reiterate our preference for  
achieving a monetary agreement. And if no  
agreement is reached, the euro would have  
to be adopted by unilateral adoption. It is important here to express the will to fulfill all the  
requirements established by the EU, while  
keeping in mind that keeping the euro gives  
legal certainty to companies’ business transactions.

We must distinguish between two possible  
scenarios if the euro were kept as Catalonia’s  
currency.

In the first scenario, Catalonia would be in the  
Eurozone as a full member of the Eurosystem  
(the nineteenth), with the possibility of representation in the Governing Council of the European Central Bank (ECB). This option would  
undoubtedly be the most desirable, as it  
would ensure full continuity of the current system from the citizens’ point of view. It would  
also give Catalonia its own voice in European monetary organisations, and eligible for  
seigniorage revenue from the ECB (although  
these revenues currently account for a very  
small percentage of GDP). The main require-ment for this option is to stay in the EU, or an  
ad hoc
temporary agreement while Catalonia  
joins the EU, a fact which would make it possible.

In a second scenario of not remaining in the  
EU, Catalonia could keep the euro as its official currency but without being a member of  
the Eurosystem. In comparison with the previous scenario, this would have the following  
main drawbacks:

• The lack of Catalan representation in the  
governing bodies of the ECB and its seigniorage revenue. This is a minor issue in  
substantive terms.

• Banks based in Catalonia would not have  
direct access to ECB credit, since it is restricted to banks within the Eurozone.

• Financial assets issued in Catalonia (including the debt of the new state) could

not be used as collateral (bank guarantee)  
for ECB loans.

The difficulties associated with the last two  
points are certainly relevant and could be  
overcome with a monetary agreement with  
the EU similar to that signed with Monaco  
and Andorra, which might approve the use  
of the euro as the official currency for the  
country and allow Catalan institutions access to ECB operations. This Council decision should be taken by qualified majority.  
It would be a natural choice to ensure the  
continuity of the current monetary framework  
and allow a “soft” and fast (re)entry as a full  
member of the Eurosystem. It is also – by far  
– the most likely scenario in the event that an  
independent Catalonia remained outside the  
EU, since otherwise it would be detrimental  
to all parties involved in relevant decisions.  
In any case, the absence of an agreement  
would not prevent Catalan banks from accessing the European Central Bank through  
their subsidiaries.

2.1.3 Bank of Catalonia, the  
country’s own central bank

Whatever the scenario, a new national central  
bank – a Bank of Catalonia (BdC) – would be  
necessary, equipped with the powers common to central banks. This would also present  
a great opportunity to carry out these functions better than the Bank of Spain (BdE) has  
in the past. The implementation of single European oversight mechanisms could partially  
facilitate this function.

It is worth repeating that Catalonia’s strong  
commitment to Europe involves its willingness  
to follow demands issued by the EU, especially considering that it will know how to sufficiently gauge the consequences of the two  
decisions in ensuring the common space, respect for commitments to citizens and creditor guarantees for the Kingdom of Spain. The  
EU itself can thus be expected to favour an  
agreement. This would be the case not only

 

67

for consistency with the principles of European integration, as analysed in this Council’s report on the paths for Catalonia’s integration in  
the European Union, but also because a strategy contrary to the agreement could end up  
affecting Spain and the Spanish economy as  
a whole, since the solvency of its debt would  
be weakened sharply and could eventually  
end up undermining the credibility of the common currency itself.

An independent bank. The Bankof Catalonia  
should be independent. This independence  
implies that neither the BdC as an institution or  
any member of their decision-making bodies  
would be allowed to seek or accept instructions from the Government or from any other  
agency with respect to how they should exercise the functions and achieve the goals with  
which they have been commissioned. Institutions, agencies and the Spanish Government  
should respect this principle and not to try to  
influence the members of the BdC’s decisionmaking bodies.

The financial accounts of the BdC should remain separate from Spain’s. The BdC should  
have its own budget.

The BdC Statutes should stipulate that its governor and directors should have a relatively  
long term – of eight or nine years – without the  
possibility of being re-elected. They should  
only be removed from office in case of incapacity or serious misconduct.

The BdC’s Executive Committee should be  
made up of the Governor, the General Managers and the General Secretary. Temporarily,  
and until Catalan legislation adopts the final  
resolutions about this matter, the appointment  
of the BdC’s governing bodies could follow the  
current model of the Bank of Spain, except it  
would be the Generalitat’s responsibility. This  
body should be in charge of the daily government of the BdC, prepare the meetings of the  
Governing Council and exercise the powers  
delegated to it by the Governing Council.

The Governing Council would be the highest  
decision-making body of the BdC. It should  
comprise the members of the Executive Committee of the BdC, along with its directors. This  
body should adopt the general lines of action  
and take the necessary decisions to ensure  
the effective exercise of the functions assigned to the BdC.

The duties to be assumed by the BdC are  
crucial for the economy and financial stability.  
Five of its duties are worth highlighting: supervising the banking system; promoting financial stability; defining and implementing monetary policy; promoting the smooth operation  
of payment systems, owning and managing  
the state’s foreign exchange reserves; and issuing and putting into circulation legal tender  
banknotes and coins.

It could also provide other services, such as  
preparing and publishing statistics related to  
their duties, providing treasury and financial  
agent services regarding public debt and advising the Government, and carry out applicable studies and reports.

Clearly, these functions would be carried out  
differently if Catalonia were part of the EU or  
otherwise, and therefore if the BdC were integrated into the ESCB (European System of  
Central Banks) or not.

Supervision. The BdC should supervise  
banks’ solvency and compliance with specific  
regulations. The new ECB-dependent European supervisor (Single Supervisory Mechanism, SSM) will supervise the large banks  
(mainly those with assets exceeding 30 billion euros and in any case the three biggest  
banks) of each Eurozone member state (and  
other countries subject to the SSM). The BdC,  
as an NCA (National Competent Authority)  
should work closely, pursuant to SSM regulation, in monitoring these large banks. In addition, the BdC should directly supervise other  
Catalan entities that may not be significant at  
the European level.

 

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Financial stability. The BdC should promote  
financial stability, ensuring the smooth operation of financial institutions, strengthening its  
resilience against adverse economic conditions and harmonising its efforts with the general and specific interests of companies and  
individuals. To this end:

• It should adopt a prudent and effective  
regulation. This would be sufficiently ensured with the direct transposition and application of European directives and banking regulations and harmonised prudential  
rules issued by the European Banking Authority (EBA) in the so-called Single Rulebook.

• It should exercise an active, macroprudential policy, always keeping an eye on  
macroeconomic variables that could affect the whole or part of the financial system, adopting measures to minimize these  
risks.

Monetary policy. The Eurosystem’s primary objective is to maintain price stability. To  
achieve this objective, the Eurosystem manages monetary policy accordingly. Through  
a series of instruments and procedures that  
constitute the operational framework, it tries to  
control the interest rate and amount of money  
in the market.

Monetary policy decisions are taken by the  
Governing Council of the European Central  
Bank (ECB), and the national central banks  
of the Eurozone countries carry them out. The  
BdC should therefore carry out this function as  
soon as Catalonia joins the Eurozone.

The ECB’s monetary policy is implemented  
with uniform criteria valid for everyone through  
three mechanisms which would be executed  
through the BdC and which are available on  
equal terms to all Eurozone financial institutions:

• Open market operations. They allow controlling interest rates, managing the liquidity situation in the market and steering  
monetary policy.

• Standing facilities. Its purpose is to pro-

vide and absorb liquidity and control interest rates in the market on a day-to-day  
basis.  
• Maintain minimum reserves. Applies to financial institutions in the Eurozone. Its purpose is to stabilise money market interest  
rates and create (or increase) the liquidity  
structural deficit.

In accordance with the Statutes of the European System of Central Banks (ESCB) and with  
respect to all liquidity injection operations, the  
European Central Bank (ECB) and national  
central banks should require collateral provided by the counterparties, i.e., banks. This  
requirement is intended to protect the Eurosystem from potential financial risks. Collaterals are the financial instruments put forward  
as guarantee for repayment of a loan or sold  
as part of a temporary assignment. It would  
be the BdC’s function to analyse and approve,  
in accordance with ECB rules, the eligibility of  
collateral presented by banks.

Payment systems. Security settlement and  
payment systems represent the infrastructure  
through which an economy’s assets are mobilised. Consequently, the proper functioning of  
settling systems is essential for financial stability. Therefore, promoting the smooth operation of payment systems should be one of the  
BdC’s basic functions.

Catalonia should likewise request membership in the Single Euro Payment Area (SEPA).  
This is an initiative of the European financial  
industry, under the leadership of the European  
Commission and the ECB, coordinated by the  
European Payments Council, and constituted  
by the EU countries plus Iceland, Norway,  
Liechtenstein and Switzerland.

2.1.4 The Catalan Investments  
and Markets Authority

The new Catalan State would need its own  
agency responsible for regulation and supervision of financial investments and the stock  
market, both for the importance of maintaining

 

69

regulatory safety in this area and because of  
the stipulations of the EC’s Directive 2010/78.  
The objectives of this agency would be to ensure market transparency and proper pricing,  
as well as investor protection.

The Catalan Investments and Markets Authority (ACIM) would be the agency to take  
responsibility for the regulation and supervision of investments and financial markets. The  
ACIM should implement policies spelled out  
by ESMA (European Securities and Markets  
Authority).

The ACIM should be independent. This independence implies that neither the ACIM nor  
any member of its decision-making bodies  
should be allowed to seek or accept instructions from the State Government or any other  
agency.

ACIM should also have budgetary and financial independence and be financed exclusively from taxes received from financial market players.

The ACIM statutes should stipulate that the  
president and directors of the Catalan Authority should have a relatively long term – of eight  
or nine years – without the possibility of being  
re-elected. They should only be removed from  
office in case of incapacity or serious misconduct.

The functions which should be exercised by  
ACIM are essential for the proper operation of  
financial markets. Its tasks would include the  
regulation and supervision of financial markets and the promotion of the smooth operation of these markets. It could also carry out  
other functions required by the EU, such as  
the management of an officially recognised  
investor compensation system or encoding of  
securities and custody of securities for management and liquidation. It could also provide  
other services, such as preparing and publishing statistics related to its duties, advising  
the Government and carrying out applicable  
studies and reports.

2.1.5 The Tax Administration

Becoming a state is not possible without having the power to manage taxes paid by citizens. The Generalitat Government has to be  
able to decide its tax model and set the course  
of the fiscal policy that best suits Catalonia. In  
contrast with the Spanish model, the Catalan  
fiscal management model should foster cooperation between the public and private sectors to encourage voluntary taxpayer compliance with tax obligations.

The Tax Agency of Catalonia, then, should be  
the centrepiece of the institutional structure of  
the Catalan State’s Tax Administration.

To become a public authority for a tax management model based on trust and cooperation with all taxpayers, the tax authority  
of Catalonia should exhibit the principles of  
transparency, professionalism, commitment to  
public service and efficiency.

The Tax Agency of Catalonia will be responsible  
for applying the tax system through the exercise  
of administrative powers and functions related to  
settlement, collection and verification of taxpayers’ tax obligations subject to the tax jurisdiction  
of the Generalitat of Catalonia, and, if necessary,  
penalise any irregularities that may occur.

Public agencies which, together with the Tax  
Agency of Catalonia, would flesh out the institutional structure of the Catalan State Tax  
Administration are the Fiscal Council of Catalonia, the Institute of Tax Studies of Catalonia,  
the Directorate-General for Taxation and the  
Board of Taxation of Catalonia.

The Fiscal Council of Catalonia is the body  
that would facilitate an ongoing dialogue between the tax authorities and organisations  
representing various groups of tax advice professionals.

The Institute of Tax Studies of Catalonia would  
be the body responsible for the technical  
training of staff working in tax administration  
bodies.

 

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The Directorate General of Taxation shall be  
the body that provides the criteria for interpreting tax regulations for governing bodies  
responsible for the application of taxes in order to achieve uniformity in the legal treatment  
of the various issues raised by Catalan taxpayers.

The Board of Taxation in Catalonia should  
group in a single authority all review proceedings through administrative channels of tax  
proceedings issued by various bodies and  
agencies part of the Tax Administration of Catalonia.

Objectives and characteristics of the future  
organisation of tax application functions.  
In a tax management system based on selfpayment, the taxpayer assumes the burden  
of performing all technical and legal tasks  
required for determining tax liability. If a high  
percentage of voluntary compliance is to be  
achieved, in addition to simplifying tax rules,  
the Tax Administration should provide taxpayers with technological tools and tax support  
and mentoring services to enable them to duly  
meet legally enforced tax obligations.

In Catalonia, there are already different branch  
networks which can offer support to all Catalan taxpayers, although each is part of a separate institutional structure. Along with public  
offices, the development of the future Catalan  
Tax Administration should include Property  
Records offices and the offices of the Chambers of Commerce, Industry and Navigation.  
In Catalonia’s future Tax Administration model,  
the ATC and AEAT (Inland Revenue) offices  
would be integrated and coordinated with other public office networks (especially provincial  
councils), always respecting the powers and  
functions of each. Likewise, to improve the  
results of ordinary tax management without  
incurring excessive administrative costs, the  
cooperation of all fiscal intermediaries will be  
required.

To organise the collection of payments made  
by Catalan taxpayers in the voluntary pay-

ment window, in the medium term, it seems  
essential to redirect tax cash flow tax to the  
Central Bank of Catalonia. Meanwhile, this  
function could be organised by the various  
private banks operating in Catalonia as partners in collecting Generalitat taxes.

From an administrative standpoint, organising  
tax collection services requires having an office network where the various possible incidents may be resolved. To organise collection  
of unpaid tax debts, asset information about  
Catalan taxpayers should be available, as  
well as the organisation necessary to manage  
a large volume of cases where a lot of issues  
arise which require decisions to be taken by  
a public authority, and which often involve legal proceedings. The personal, material and  
technological means available today in Catalonia, especially those integrated in the autonomous bodies of provincial agencies, could  
be sufficient to address the management of  
executive collection of tax debts from Catalan  
taxpayers.

The administrative control of the correct fulfilment of tax obligations is a verification and  
testing activity subsequent to decisions taken  
by taxpayers at the time of carrying out their  
tax obligations. Therefore, given the volume of  
tax returns that have to be checked each fiscal  
year, the use of technologies for analysis and  
data cross-referencing is intensive. According  
to the tax control model of the Spanish state,  
the AEAT carries out this task distinguishing:  
a) on the one hand, mass (or comprehensive)  
checking by tax administration bodies; and b)  
on the other, the specific (or intensive) checking carried out by tax inspection bodies. This  
model of organisation with respect to monitoring compliance is valid, and addresses the  
various possibilities of combining human and  
technological resources according to taxpayer characteristics or the objectives of the public action.

Finally, it should be noted that the discovery of  
undeclared economic activities (underground  
economy) is a function that requires the use of

 

71

research techniques and people and capital  
tracking. Achieving the co-operation of international tax authorities and domestic economic operators (especially financial institutions)  
are therefore essential aspects for ensuring  
effective tax investigation.

The IT structure. In the 21st century, the key  
factor of taxing capabilities is information.

For this reason, the Tax Administration of Catalonia should have the necessary technological  
tools to develop an electronic management of  
tax application procedures.

The main shortcoming of the Tax Administration of Catalonia is that it lacks its own database of tax information, and the hardest challenge is to obtain it without co-operation from  
the Spanish government. The main requirements for the construction of this database  
are three-fold: obtaining tax data from Catalan  
taxpayers, the storage system and, finally, the  
protection of data to ensure confidentiality.

One might consider the possibility of taking  
advantage of the IT system which the ATC  
currently uses (GAUDI), although upgraded  
and improved, as a practical means for processing the various tax application procedures. However, in any case, the suitability of  
implementing an alternative IT system needs  
to be assessed.

From the taxpayer’s perspective, the main  
channel for modern tax management is what  
is known as an online platform, understood as  
a site featuring all tax-related procedures and  
formalities to facilitate the remote interaction  
between the tax administration and taxpayers.

Estimated operating costs. According to the  
average cost of tax collection in OECD countries, for a potential 70 billion euros (including social contributions), we could estimate  
that the Catalan tax system would cost 750  
million euros. However, the goal of the future  
Tax Agency of Catalonia should be to reach  
the efficiency levels that would allow it to carry  
out its public functions in accordance with a

public spending budget of about 400 million  
euros.

Estimate of the economic performance of  
the Catalan tax system. If to calculate the  
Spanish taxes obtained from Catalonia we applied a rate of 20% to the gross taxes collected by the AEAT, we would discover that the financial flow which the Generalitat of Catalonia  
could manage would be between 40 and 50  
billion euros per year. To this amount we would  
then need to add the taxes collected by the  
ATC and, if applicable, revenue from the management of Social Security contributions.

If we assume that Catalonia’s gross domestic  
product (GDP) is about 200 billion per year,  
if we applied the average tax burden levied  
by Spain during the last five years, we would  
obtain tax revenue, from all sources (including  
social security contributions) of close to 70 billion euros per year.

If, instead of applying the Spanish rate we applied the average EU tax rate, the Generalitat  
of Catalonia would obtain an estimated revenue of about 80 billion euros.

Finally, if we applied the tax rate of the European countries with the highest taxes, we could  
conclude that the tax revenue limit for Catalonia would be close to 100 billion euros per  
year.

Tax Administration development stages.  
The first phase is preparation, which extends  
from the present moment to the constitution of  
the new state. At this stage, measures must be  
taken to strengthen the powers and resources of the Tax Agency of Catalonia, under the  
Spanish tax law framework, which may be valid for both a political independence situation  
as well as any other scenario that may involve  
an increase in self-government for Catalonia.

The second phase of the process for creating the Tax Administration of the Catalan state  
starts from the moment that the Generalitat of  
Catalonia achieves fiscal sovereignty. It will  
therefore be developed in accordance with

 

72

regulations approved by the Parliament of Catalonia. From the moment that the Parliament  
of Catalonia approves legislation to shape the  
Catalan tax system, its effectiveness will depend essentially on the will of Catalan citizens  
to abide by and comply with Catalan regulations.

If fiscal awareness of Catalan taxpayers  
translates into significant improvement in the  
percentage of voluntary compliance with tax  
obligations, as compared to what the Spanish government now obtains in Catalonia, the  
development of the administrative structure  
responsible for applying the Catalan tax system will be streamlined considerably.

In the first moments of operation of the Catalan  
state’s Tax Administration, to ensure the continuity of tax flow and that taxpayers meet their  
tax obligations with total normalcy, the possibility of declaring much of the applicable tax  
laws and regulations in force before reaching  
fiscal sovereignty might have to be deemed  
temporarily applicable.

To facilitate the transition between Spanish and  
Catalan tax jurisdiction, in accordance with  
standard international community procedures,  
the Parliament of Catalonia will need to approve  
a bill governing non-residents’ income tax.

Once the process for implementing the Catalan tax system is completed, the Tax Administration of Catalonia shall be integrated into the  
international network of tax administrations,  
which it should comply with. This administrative co-operation, essential for developing the  
tax application functions in a globalised world,  
will be particularly necessary with respect to  
the Spanish Tax Administration.

2.1.6 Customs service

A factor in boosting the economy of a country is having well-organised and efficient customs. A balance needs to be found between  
the intensity of control and the speed in managing customs procedures, lest excessive su-

pervision should unduly delay the entry or exit  
of goods with consequent costs for Catalan  
importing and exporting companies.

The two essential factors for organising customs management are, first, the public employees responsible for processing the import  
and export declarations and, secondly, the IT  
system that collects data from international  
traffic of goods. In both cases, the Generalitat  
of Catalonia should be able to mobilise human  
and technological resources to ensure smooth  
and safe traffic through Catalan customs,  
since an open and dynamic economy such as  
Catalonia’s cannot allow any anomalies in the  
entrance, and especially in the exit of goods  
and products destined for foreign markets.

A customs authority or service will need to  
be set up to perform foreign trade duties and  
market surveillance, control and inspection.  
Based on the State Customs Surveillance Service (SVA) – which has a decentralised agency in Catalonia (the Regional Area, based  
in Barcelona) – six operating units could be  
established (Barcelona El Prat Airport, Tarragona, Palamós, Girona and Lleida), a combined unit (Figueres), and two marine bases  
(Palamós and Barcelona).

Also, a national contact point should be established within the corresponding Ministry  
– currently the Ministry for Business and Labour – for controlling the adoption of technical  
regulations for products.

A national accreditation organisation would be  
required, responsible for overseeing the performance of the various certification bodies and  
defining the legal framework in which it would  
operate. This role is currently carried out at the  
Spanish state level by the Spanish National Accreditation Entity (ENAC). Among other things,  
the new entity should be a member of the European Cooperation for Accreditation (EA).

To carry out the new market surveillance activities required by the EU in relation with the  
safety and environmental regulation objec-

 

73

tives, and to avoid unfair competition, in addition to the aforementioned customs, the  
Catalan Consumer Agency and the Catalan  
Food Safety Agency (ACSA) would have to  
be given more powers, and the Catalan Medicine Agency would have to be created from  
scratch (based on the current Pharmaceutical  
Control and Medical Devices Service).

In order to comply with the requirements of  
EU directives in this area, when it comes to organising customs management, from the very  
first moment the new state should have public  
employees ready who would be responsible  
for processing import and export declarations  
and a computer system capable of managing

international freight traffic data. These human  
and technological resources are necessary  
to ensure smooth and safe customs traffic in  
Catalonia.

In addition, the Mossos d’Esquadra police  
force would have to take over the Customs  
Surveillance Service and create new Inland  
Revenue units with its own staff. Moreover, the  
new state could take over – through transfer  
or distribution of assets and liabilities – all or  
some of the staff and material elements of the  
current decentralised bodies of the Customs  
Administration of the Spanish state in Catalonia (Regional Area, provincial offices and operational units).

 

74

2.2 Administrative authorities and structures  
of the new State

dio spectrum. Regulatory authorities are also  
required in relation to the financial system –  
banking securities market. Apart from these  
strictly economic areas and to protect postal  
service and environmental consumers, the  
EU requires the creation of a national postal  
authority and another one that guarantees the  
safety of nuclear waste and, more precisely  
“security for the management of consumed  
nuclear fuel and radioactive waste.” In addition to the regulatory authorities required  
by the EU, the new state could create those  
which it might deem appropriate.

European law allows states freedom to choose  
the institutional and administrative design of  
national competition and regulation authorities. In this sense, its format is not stipulated.  
It does require, however, that the national  
competition and regulatory bodies be public  
agencies acting impartially and transparently,  
and in particular as neutral public bodies with  
respect to any specific interest.

During the first stage of constructing the possible independent state, the guidelines and  
requirements of European regulations must be  
applied taking into account the principles of  
maximum organisational and functional simplicity. This is so because the representative  
institutions of a future Catalan state should define the most permanent characteristics of the  
institutional design of regulatory bodies and  
their functions.

It can be concluded that the simplest formula  
to organise the regulation functions in energy,  
telecommunications and transportation (rail)  
services during the transition period would be  
assigning to Catalan Competition Authority  
(ACCO) – which already exists – functions re-

2.2.1 Competition and regulation  
authorities

At times, markets for goods and services do  
not spontaneously work correctly, because  
there may be agencies with excessive power  
that hinder efficiency and establish extraordinary benefits that harm consumers, imposing  
higher prices and/or worse quality. Therefore,  
protection of competition has been a traditional concern of European economic policy.

There are also some economic sectors in  
which the production and distribution structure itself determines the existence of few  
competition possibilities due to the existence  
of structural monopoly situations (such as, for  
example, and clearly, in the case of energy).

To address these two problems, the EU has  
gradually adopted legal harmonisation measures, requiring Member States to create national authorities responsible for ensuring  
protection of competition and regulate certain  
sectors, especially, but not exclusively, basic economic services and network services  
where a high level of liberalisation and harmonisation at the European level has taken  
place. This explains the growing importance  
of discussing protection of competition and  
regulation of network industries, implying the  
degree of power and autonomy with which  
these bodies are established.

Specifically, as far as the regulatory authorities are concerned, as of today, the EU requires Member States to have such authorities  
in place in the field of rail transport, gas and  
electricity and telecommunication services,  
which includes electronic communication services and those related to the use of the ra-

 

75

lating to the guarantee of access to infrastructure. As for the rest of supervisory and regulatory functions, the simplest formula during  
the transition period would be to assign the  
responsibility to administrative structures of  
the Generalitat of Catalonia (as long as the requirements of fairness and transparency were  
observed). Regarding the national regulatory  
authority for postal services, the role could  
also be assumed temporarily by ACCO.

However, in relation to the regulatory authority for the safe management of nuclear waste  
and radioactive fuel, it should be noted that  
this is a new responsibility for the Generalitat and a committee or board for controlling it  
would have to be appointed.

Once the possible independent Catalan state  
is consolidated, the future Catalan lawmakers  
should opt for a more definitive design aligned  
with some of the following functional forms  
with respect to regulatory and competition authorities:

• Industry-specialised regulatory and competition authority: set up an institution specialising in competition policy and create a  
regulatory specialist in the various industries: energy, telecommunications (electronic communications and radio), rail, financial system, postal service and nuclear  
waste.

• Competition authority and one or more  
multi-sector regulators: set up an institution specialising in competition policy and  
create an institution responsible for regulating all sectors and different institutions  
that carry out these tasks with related sectors.

• Single, multi-sectoral regulatory and competition authority: integrate the competition policy and regulation of the various  
sectors in a single institution.

Additionally, it must be borne in mind that in  
addition to the regulators required by the EU,  
the future state can create new independent  
regulatory bodies or agencies and maintain  
the existing ones, such as the Broadcasting

Council of Catalonia (CAC) and the Catalan  
Consumer Agency.

2.2.2 Other administrative  
structures required by the EU

The EU also requires that Member States have  
administrative structures with the capacity to  
develop and implement European law and ultimately implement the EU’s public policy.

a) Rail transport, electricity and gas energy services and telecommunications

Transport policy. In the field of rail transport,  
the only thing to be done is create an administrative structure responsible for security.

With regards to maritime transport, the new  
Catalan state would have to create an administrative structure that would take over the responsibilities of international maritime regulations, safety, pollution and inspection.

In the field of air transport, Catalonia has to  
create its own air navigation entity, integrated  
in the European aviation network (it could be  
created based on the existing control centre  
in Barcelona) and a Catalan Agency for Aviation Safety which would assume responsibility  
for aviation safety in the Catalan airspace (the  
flight safety office which EASA has in Sabadell  
could be used as a basis). A national supervisory authority would also need to be created  
to certify air navigation service providers.

Finally, in the field of smart transport and satellite navigation, the Government of Catalonia  
would create new units or agencies of the Ministries of Territory, Economics and Business  
that could participate in the European projects.

Energy. To meet EU requirements, an agency  
for managing strategic reserves would have  
to be created. Alternatively, Catalan energy  
reserves stored in other EU states could be  
accounted as national reserves; an independent National Regulatory Authority in the field

 

76

of Nuclear Energy to ensure the maintenance  
and safety of operating nuclear power plants  
(the EU suggests creating this authority, but it  
is not mandatory; in Spain this function is carried out by the Nuclear Safety Council); one or  
more private operators of the electricity market, and one or more private operators of the  
gas market.

For the promotion and regulation of cross-border networks in Europe, the new state should  
ensure the existence of a high voltage network operator and gas network operator who  
would carry out the necessary functions for  
the smooth operation of these networks.

b) Financial system and economic and  
social policies

Public procurement. In this area there would  
be no need to create any new body, since the  
Catalan Public Sector Procurement Administrative Tribunal could perform the tasks required by the EU.

Competition policy. In connection with mergers and antitrust practices, the Generalitat  
already has a body – the Catalan Competition Authority (ACCO) – which, equipped with  
more resources, could carry out the functions  
required by the EU.

Company law. A Commercial Register of  
Catalonia would need to be created, with the  
degree of territorial decentralisation deemed  
appropriate, although it could be organised  
based on the current provincial registers in  
Barcelona, Tarragona, Girona and Lleida,  
through a transfer from the Spanish General  
Administration to the Government of Catalonia. Likewise, a workforce of registrars would  
have to be developed, although current employees might be offered the possibility of  
keeping their jobs and positions, to later consider any need for new hires.

Free movement of workers and capital, right  
of establishment and freedom to provide  
services. The Catalan Social Security Agency,  
which would have to be created, would need

sufficient funds to guarantee the rights to do  
with the free movement of workers, which correspond to EU citizens living in Catalonia.

As far as the free movement of capital is concerned, a structure with administrative and  
cooperation capacity would have to be created. It would be responsible for disclosure  
and oversight requirements pursuant to Euro-pean legislation on payments and combating  
money laundering and financing of terrorism.  
This structure is currently built into the Bank  
of Spain. The same solution could be adopted  
with the Central Bank of Catalonia.

Financial Services. Oversight functions required by European law in this area could be  
developed by a body or bodies in the new  
state. It is recommended that the Central Bank  
of Catalonia handle the supervision functions  
of financial institutions based in Catalonia and  
the subsidiaries or branches of major European banks active in Catalonia. Likewise, regulation and supervision of financial investments  
and market securities could be assigned to  
the future Catalan Investments and Markets  
Authority (ACIM).

Taxation. In this area it would be necessary  
to have the technological and administrative  
structures required to manage indirect taxes  
(VAT) and excise taxes, as well as agreements  
to avoid double taxation in relation to direct  
taxes. These functions should be assigned to  
the future Tax Agency of Catalonia.

Economic and monetary policy. The essential element for complying with the EU acquis  
would be the creation of a Central Bank of  
Catalonia which would be assigned the duties  
specified in the Treaties and in the set of rules  
that determine the operation of the European  
Economic and Monetary Union.

Statistics. It would only be a matter of bolstering IDESCAT so it could assume statistical  
processing in relevant areas such as the environment, trade and transport, and develop  
a complete and self-sufficient production and

 

77

statistical distribution model capable of integrating functions and powers currently in the  
hands of the Spanish National Statistics Institute (INE).

Social policy and employment. There are  
really few institutional requirements derived  
from European regulations in this area, but  
currently the Generalitat only handles Labour  
Inspectorate and the management of the EURES programme through the Employment Service of Catalonia (SOC). The following administrative bodies or structures would have to be  
created: a reference centre for the European  
Agency for Safety and Health at Work; administrative structures of the various European  
funding mechanisms (ESF, EGF, aid funds for  
the most needy, Employment and Social Innovation Programme) and a National Contact  
Point for the PROGRESS programme.

Agriculture and rural development. In this  
context, the new state should strengthen the  
following structures. the Aid Service and Paying Agency of the Department of Agriculture,  
which should expand its functions to carry out  
those currently performed by the Spanish Agricultural Guarantee Fund (FEGA); based on  
units of the Catalan Consumer Agency and  
the Catalan Food Safety Agency, an Information Agency could be created and food controls could be reinforced; and a Catalan institution could be created to carry out these  
functions in Catalonia based on the five Catalan insurance organisations that are part of  
the company bringing together and managing  
agricultural insurance companies at the Spanish level (AGROSEGURO), bearing in mind,  
however, that these bodies are private and  
that the formation of a group is voluntary.

Fishing. The Directorate General for Fisheries  
and Maritime Affairs of the Generalitat should  
assume the responsibilities of the SecretaryGeneral for Fisheries of the Spanish Government, including the management of aid to the  
sector, and developing action plans in relation  
to structural actions defined by EU law, and  
it should include the two provincial offices of

the Instituto Social de la Marina and the Port  
Authorities of the ports of Barcelona and Tarragona.

In terms of inspection and control, a specialized body of fisheries inspectors would also  
have to be created.

Financial control. The Generalitat has the  
Comptroller General of the Generalitat and the  
Audit Office to be able to exercise financial  
control in accordance with the criteria of the  
Public Internal Financial Control (PIFC).

Both agencies meet the requirements of European legislation but would have to assume  
new powers. In the case of the Comptroller  
General it would assume control and supervision of local government, now in the hands  
of Spain’s General Comptroller, and areas of  
exclusive competence of the state, such as  
defence and foreign policy. In the case of the  
Audit Office, it would have to take over the role  
of accounting judgment, which is currently exclusive to the Court of Auditors.

Regarding the fight against fraud, a unit of cooperation with other Member States (AFCO)  
would have to be set up, as well as a point of  
contact with OLAF (European Anti-Fraud Office). Specific units to combat fraud in the field  
of financial institutions would also have to be  
established (it could be located in the future  
Central Bank of Catalonia) and have a national centre for analysing coins and bills in order  
to detect forgeries.

c) Justice, rights, freedoms and security

Judiciary system and fundamental rights.  
The new state should be equipped with the  
administrative institutions and structures necessary to continue the rule of law. The Generalitat already has many of these administrative  
structures and institutions. Others would have  
to be created based on Spanish structures  
currently in place in Catalonia.

Regarding the judiciary, in addition to legislative requirements, a new judicial system

 

78

would have be built from the ground up. Currently, the judiciary is not decentralized, but  
Catalonia has the infrastructure and human/ 
material resources required to create a judicial system. The Generalitat of Catalonia has  
powers for the administration of justice, which  
means it owns justice-related buildings. It also  
has material and human resources in place.  
From this standpoint, the new state would assume all or part of the material means that  
the Spanish state currently has in Catalonia –  
whether by transfer from Spain or as a result of  
distribution of assets and liabilities – and staff,  
offering them new employment in the new judiciary. Regarding training of judges, Barcelona houses the Judicial School of the General  
Council of the Judiciary.

In the anti-corruption field, the Fraud Office  
could take over new control functions over  
public administrations, political party financing, money laundering and terrorist financing.

It would also be able to fulfil the requirements  
regarding the protection of personal data, reinforcing the powers of the Catalan Data Protection Authority as a competent authority.

The EU does not require specific administrative structures, regardless of the judiciary, for  
the protection of rights. In any case, it should  
be remembered that Catalonia already has  
some independent authority in this area. It has  
an Ombudsman, a rights protection authority  
in the field of broadcasting and various institutions for the protection of children’s rights.

Justice, freedom and security. Two administrative services would have to be created: a  
border control service, which would enforce  
European rules of access to the EU and an  
immigration administration service, managing migration flows, both in relation to persons from EU Member States and those from  
third countries. In the first case, new units of  
the Mossos d’Esquadra (Autonomous Police)  
could be created to assume control of external borders and reinforce the police capacity  
in order to take over duties for combating or-

ganised crime, terrorism and drug trafficking.  
In the second, attempts could be made to try  
transferring or adding staff based in Catalonia, which today work for Spain. It would be  
necessary to:

• Create centres for immigrants, asylum  
seekers and victims of human trafficking.

• Designate a national contact point with  
EUROJUST (European Agency for Judicial  
Cooperation).

• Create a Catalan consular network to process and issue visas.

d) Education, culture, science and environment

Education and culture. Regarding the structures necessary for the implementation of  
European programs, the management structures for the European Erasmus+ programme  
would have to be implemented. The powers  
of the Agency for Managing University and  
Research Aid (AGAUR) would have to be developed to accept higher education studies,  
create focal points of the Eurydice network  
and the European Foundation for Quality  
Management (EFQM), and establish points  
of contact for the EUROPASS and eTwinning  
projects.

Science and research. In this regard, it  
should be noted that Catalan R&D structures  
receive significant funds from Spain and from  
research structures co-financed by institutions  
linked to the Spanish Government and the European Union. Therefore, the Government of  
Catalonia should make an additional financial  
effort to keep the financial funding of Catalan  
R&D. However, prior to transfer or as a result  
of the distribution of assets and liabilities, the  
new state may take all or part of the 21 CSIC  
research centres located in Catalonia.

In addition, the Government of Catalonia,  
through the Ministry of Universities and Research, should designate the representation structures and national points of contact  
between research programs, especially the  
Horizon 2020 program, a body coordinating

 

79

initiatives arising from articles 185 and 187  
of TFEU, and an agency for agricultural research, which for Catalonia could be the Institute of Agrifood Research and Technology  
(IRTA).

Intellectual property right laws. The Generalitat Administration today has enough structures to meet the requirements relating to  
intellectual property rights. However, the protection of industrial property, which European  
directives and screenings handle jointly with  
intellectual property, is currently guaranteed  
by the Patent and Trademark Office, which is  
a non-regionalised register headquartered in  
Madrid. The Generalitat should therefore create the necessary administrative structure to  
protect this right.

Environment. The adjustment that should be  
carried out institutionally is inexpensive, although more skilled human resources should  
be hired in order to take over new responsibilities. However, in some cases new roles  
of a competent national authority, which are  
now performed by Spanish ministries, would  
have to be taken over. Specifically, it would  
have to be a competent authority to authorise and agree extraction activity, although the  
functions could be assumed by existing institutions in the Generalitat de Catalonia structure. In the field of waste management, a telecommunication equipment market oversight  
organisation would have to be created, although the Catalan Consumer Agency could  
also take over these functions. The functions  
of emissions registry would have to be taken  
over, and a national authority for implementing Kyoto Protocol projects would have to be  
created. A national authority and a national  
service of technical assistance for implementing the REACH and CLP Regulations (registration, authorisation, evaluation and restriction of chemicals) would have to be created.  
These functions are currently undertaken by  
the Ministry of Agriculture, Food and Environment and the Ministry of Health, although  
the Ministry of Territory and Sustainability has  
been carrying out functions under this regula-

tion and could take over these new roles. A  
national authority would have to be created in  
the area of noise contamination, which could  
be taken over by the services of the Ministry  
of Territory and Sustainability. And a national  
contact point would have to be created for the  
Common Emergency Communication and Information System, which could be taken over  
the services of the Generalitat’s Directorate  
General of Civil Protection.

e) Consumer protection

Health and consumer protection. In order to  
meet EU requirements, it would only be necessary to strengthen the agencies – the Catalan Consumer Agency – and/or the existing  
administrative structures, such as the aforementioned DGs. This reinforcement should be  
more intense in certain areas where the Generalitat currently has no specific powers and  
the Spanish Government provides consumer  
protection – insurance, electronic communications, certain modes of transport and financial services, among others.

The duties of the Early Warning Mechanism  
(RAPEX) should also be taken over, and a national contact point should be designated.

Food safety and veterinary and phytosanitary policy. The only shortcoming in this regard would be in the area of foreign trade of  
food, animals, feed and plant material, which  
is currently under the exclusive jurisdiction of  
the Spanish state and is implemented by staff  
in Spain’s General Administration. In this context, specialised foreign control units would  
be created with Generalitat civil servants who  
currently carry out their work in the field of  
food, veterinary and phytosanitary safety, to  
perform the relevant official controls and act in  
the four border checkpoints that exist in Catalonia and are currently managed by Spain’s  
General Administration.

f) Foreign and security policy

Foreign relations. In this context, the new  
state, in addition to implementing the system

 

80

of customs and foreign trade border control  
set out in chapters 1 and 29, should strengthen the administrative structures of the ministries of economy, industry, trade and foreign  
affairs in order to exercise its powers in trade  
policy which the General Administration of  
the State currently carries out, for which it has  
ICEX and its extensive network of commercial attachés in Spanish embassies around  
the world. In this regard, it would be necessary to create a similar network based on the  
branch network of the Generalitat of Catalonia  
through ACCIÓ.

Regional policy and coordination of structural instruments. The Generalitat now has  
a team of professionals and administrative  
structures in the area of management and control – particularly the Directorate General for  
Policy and Economic Development (DGPPE)  
of the Ministry of Finance and Knowledge and  
the Generalitat’s Comptroller General, which,  
with reinforcement, could take over the management, certification and auditing tasks required by the administration of EU funds.

Foreign, security and defence policy. In this  
context, a possible Catalan state should create its own institutional structures associated  
with a foreign diplomatic service, capable  
of applying a Common Foreign and Security  
Policy and the EU’s Common Security and Defence Policy (CFSP/CSDP).

It would be necessary to reinforce the material and human resources or create new  
Mossos d’Esquadra units to ensure compliance with European regulations pursuant  
to the protection of classified information.  
Administrative structures would have to be  
created that allow adequate compliance of  
restrictive measures adopted by the European Union with respect to third countries  
(in the diplomatic, commercial, security and  
intelligence fields). And the new government would also have to create mechanisms  
for ensuring compliance with EU decisions,  
strategies and policies (such as strategy to  
combat the proliferation of small and light  
firearms or security instruments on classified  
information).

 

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2.3 Catalan Social Security

ing healthy living conditions. This concept of  
protection by Social Security is totally alien  
to Spanish Social Security, except for some  
special public employees for whom the Social  
Security system allows them to enjoy years of  
aid for the purchase of property, as additional  
benefits provided for by their specific group  
agreements.

The nine branches of the Social Security  
system. What should be understood as part  
of the concept of Social Security? Both Convention 102 of the ILO and others from the  
same organisation and the European Code of  
Social Security drafted by the Council of Europe, indicate nine areas that are intrinsic to  
a social security system: health care; temporary disability due to illness; unemployment;  
old age; work accidents and occupational  
diseases; family protection; motherhood; permanent disability and benefits for death and  
survival. This does not mean that all states are  
required to comply with all provisions of treaties to each of the areas mentioned. There  
may be significant differences between countries, and not all of them give all branches the  
same importance.

It is interesting to note that internationally  
these nine branches have been considered  
as typical of a social security system, and that  
each of these branches should meet the established minimums that must be met by both  
in relation to the effective capabilities of the  
protected population as compared with the  
conditions for access to services (for example, the prior contribution period required). It  
also establishes the minimum amount of economic benefits, comparing them to the earnings of a typical skilled worker.

2.3.1 The Catalan concept  
of Social Security

Social Security is, due to its size, the basic institution guaranteeing the welfare state in all  
European countries. Currently, in Catalonia a  
significant number of people are recipients of  
Social Security income. The number of people (approximately 2.2 million) that sometime  
in the last year have received directly from  
Social Security all or most of their financial resources is close to the figure of the total employed population contributing to Social Security (approximately 2.96 million).

In the medium and long term, the improvements that should be introduced into the Social Security system should be guided by the  
principle of respect to Social Security international standards. There is no single social  
security model in the world. In fact, there is  
actually no overarching concept of what is included in the concept of Social Security. Internationally, the first common criterion of what  
Social Security is about is Agreement no. 102  
of the International Labour Organisation (ILO),  
which specifies not only what areas of protection national social security systems must  
have, but also what the minimum intensity of  
this protection is in order to avoid false coverage.

It is worth noting that these international  
guidelines establish minimum conditions.  
Various countries may, however, cover other  
social contingencies. For example, in France  
more than six million people receive Social  
Security aid for housing (similar to systems in  
Finland and Germany) as a kind of family benefit for families with children when it comes to  
paying rent, purchasing property or improv-

 

82

Therefore, according to the spirit of continuity  
in levels of social protection as mentioned before, it would be important for:  
• The future Social Security System of Cat-

alonia to provide effective and sufficient  
social protection in the nine protection  
branches indicated by the ILO and the  
Council of Europe treaties, which establish  
minimum standards;  
• and that in no event changes may be made

that involve a drop below these European  
standards; on the contrary, we should target the compliance of levels stipulated in  
the European Social Charter revised in  
1996, since the majority of European countries has ratified it, and the revised European Code of Social Security.

2.3.2 Functional and organic  
aspects

The Catalan State must have, from the first  
moment of its creation, a social security system capable of performing the basic functions  
of this institution, vital to the welfare state, in  
accordance with international and European  
standards.

These functions are essentially the following  
five:

• The collection of Social Security funds.  
• The provision of pensions and other benefits.

• The actuarial and sustainable design of  
the system and the financial and actuarial  
management of reserves.

• The management of reserve funds and investments.

• The administration of human resources  
and technological systems.

The Catalan Social Security Agency should  
be in charge of performing these functions.  
To exercise this control, it could make use of  
the indirect public service management techniques, provided that this does not diminish  
transparency and accountability. It remains to  
be determined whether part of the funds col-

lected would have to be shared with the Tax  
Administration.

The Agency may depend from Parliament.  
Agency government could be the responsibility of a steering board aided by a council.

The staff serving the Catalan Social Security  
system would be about four thousand people.  
Personnel costs would be close to 130 million  
euros and would have nearly two hundred offices and other facilities.

In the first stage of the constitution of the new  
state, the Government’s activity in this area  
should be governed by the principle of continuity. In the medium and long term, the improvements required by European and international standards should be introduced.

In any case, the basic objectives that should  
steer the activities of the new state in terms of  
creating the Social Security system could be  
stated thus:

• The citizens of Catalonia should have  
guaranteed pensions and other Social Security benefits as they have been recognised in the same conditions until the present, regardless of the scenario in which  
the independence process takes place.

• The citizens of Catalonia have to have the  
certainty that in the future they will have  
access to Social Security benefits of the  
same quality, at least, as what they have  
been able to enjoy so far.

• Citizens of other nationalities who have  
worked for some time in Catalonia or who  
wish to do so in the future should be assured that they will be treated as they have  
until now in relation to their possible Social  
Security rights, and that in any case the  
European and international coordination  
guidelines will be scrupulously respected.

2.3.3 Contributory pensions  
and sustainability of retirement  
pensions

The balance (income less expenses) of the

 

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Social Security system in its entirety is quite  
different in Catalonia and the rest of Spain. The  
analysis of 1995-2010 data leaves no doubt.  
While in Catalonia Social Security has always  
enjoyed a surplus from 1997 to 2008, in the  
rest of Spain surplus was only seen between  
2003 and 2007, and for clearly lower amounts.  
Moreover, when Catalonia has recorded deficits (1995-96 and 2009-2010) it has been, in  
all cases, significantly lower than in the rest  
of Spain, where in 2009 the Social Security  
deficit reached 21.967 billion euros and the  
costs of Social Security exceeded 21%, while  
in Catalonia the deficit stood at 1.254 billion  
euros and expenditures exceeded revenues  
only by 5%. And in 2010, when the Social Security deficit continued to rise due to the increase in unemployment, in the rest of Spain  
expenses exceeded revenues by 25% (and  
deficit reached 26.317 billion euros), while in  
Catalonia expenses exceeded revenues by  
only 8.6% (and deficit was 2.142 billion euros).

Since the Social Security system has slipped  
into deficit in Catalonia due to the economic  
crisis, although it has done so in a much lower  
proportion than in the rest of Spain, it is important to ask ourselves how deficit will be addressed in an independence scenario, if it occurs when the economy has not recovered to  
levels required to generate balance or surplus

in the Catalan Social Security accounts. On  
the one hand, in the case of an agreed independence process involving the distribution of  
assets and liabilities, a portion of the reserve  
fund will be transferred to the new Catalan  
state. The rate that corresponds to Catalonia  
would depend on negotiation. It would be correct to say that Catalonia should be assigned  
the part of the reserve fund coming from Social Security surpluses in Catalonia. This proportion would be significant, since, as we  
have seen in the boom years, Social Security  
enjoyed greater surpluses in Catalonia.

However, in the case of a non-agreed independence process, or in the case of a negotiation of assets and liabilities extended over  
time, years after the effective independence,  
the new Catalan state would cover the deficit  
with ordinary budgets of its own public finances. If Catalonia had gained its independence  
in the 2006-2011 period, once the costs of the  
current Generalitat and the expenses of the  
state powers it might have assumed were addressed, it would have had access to an additional income of 11.198 billion euros per year  
on average. With this additional net income,  
there would be no problem in addressing the  
Social Security deficit for the duration of the  
crisis.

 

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2.4 The judiciary and the administration  
of justice

Whatever the creation scenario of a new Catalan state, the basic objectives which should  
be ensured in the field of the judiciary and the  
justice administration are, firstly, a guarantee  
of the continuity of the justice administration  
and its normal operation, and on the other  
hand, the establishment of a provisional government system for the judiciary. However, this  
transition phase is not the time for establishing  
the new judiciary and justice administration  
model to be applied in the new state. Rather,  
this is a matter that should be decided with the  
new Constitution. The various issues involved  
in these basic objectives are discussed below.

2.4.1 Organisation and  
jurisdiction of courts

After a proclamation of independence, the  
Spanish courts located outside Catalonia with  
jurisdiction over the entire country (Supreme  
Court, High Court and Central Courts, which  
should also include the Central Economic Administrative Court, although it is not judiciary  
in nature), as well as the Constitutional Court,  
would no longer have jurisdiction in Catalonia.  
The judicial functions of these bodies in all  
matters affecting Catalonia should therefore  
be transferred to Catalan courts (High Court,  
County Courts, Local Courts).

The current organisation of courts in Catalonia, with the assumption of new responsibilities, would remain basically the same, with  
the exception of the High Court, which would  
have to adapt to the new situation, although  
with the minimum possible changes. These  
changes would include considering the division of the existing civil and criminal courts in  
two different areas, one for each of these juris-

dictional divisions, the creation of a board for  
defending fundamental rights and a board of  
appeals.

To ensure the normal operation of the justice  
administration during the transitional period,  
it is essential to ensure that the existing positions of judges, prosecutors and court clerks  
are covered, at least at the same level as at  
present. Vacancies that may exist for any reason may be covered by the methods provided  
for by legislation currently in force and also resorting to, if necessary more than at present,  
the traditional method of alternates and substitutes.

The staff of the current justice administration in  
Catalonia is also made up of various state bodies (managers, handlers and legal assistance  
staff, as well as coroners) that, nevertheless,  
the Generalitat manages as responsible for establishing appropriate mechanisms to temporarily cover vacancies that may occur. This is  
done using temporary staff, appointed in this  
capacity from the human resource pools managed by the Generalitat’s Department of Justice. For this reason, special problems are not  
expected which could jeopardise the ability of  
meeting staff needs.

The same can be said of material means, including IT, required by the justice administration for its operation, and which are already  
handled by the Generalitat of Catalonia.

Once Catalonia’s own judicial administration is established, the Catalan Government  
should, on the one hand, assign the bank that  
would manage deposits and consignments,  
and, secondly, request the bank managing  
the deposit and consignment account for the

 

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plementation, ensuring the continuity of cases  
in processes, including appeals.

Regarding the language system of judicial  
proceedings and actions, it would be worth  
introducing in the incorporation law the necessary provisions to ensure the normal use  
of Catalan with a two-fold aim: guarantee the  
right to linguistic choice in proceedings and,  
for this purpose, ensure that all staff is qualified linguistically in Catalan and Spanish. This  
means that an adequate and sufficient familiarity with both languages should be a requirement for these positions, and not just optional.  
Having established this general principle, we  
should distinguish between people who already occupy a position at the time when the  
new state is created those who are hired after  
the fact, and establish a transitional regime for  
the first category.

2.4.3 Pending processes and  
judicial executions

From the first moment it becomes a new independent state, Catalonia should address the  
legal proceedings pending final resolution,  
especially in the case of proceedings started  
in Catalonia and pending appeal in a court  
outside Catalonia, and those started in the  
first instance before judicial bodies outside  
Catalonia (High Court and Supreme Court)  
involving people with the new Catalan nationality or, in some cases, resident in Catalonia, or Catalan governments or institutions.  
Likewise, open procedures with the Constitutional Court which could affect persons or  
institutions in Catalonia should be taken into  
account.

In all these cases, the procedures should be  
followed according to the procedural rules in  
effect at the time of the proclamation of independence (which would have been incorporated in the new Catalan constitution). The  
question that arises is which court should  
continue dealing with these cases. There are  
two possible general solutions. First, send af-

Spanish government to transfer the funds in  
question according to the specifications of the  
Catalan courts.

The normal operation of the justice administration requires access to certain files and records, some of which are filed by the judiciary  
(prisoners, protection of domestic violence  
victims, among others) and currently included  
in the Justice Administration Support Administrative Records (SIRAJ), while others are located outside the judicial system, but in many  
cases can be viewed by the courts through a  
single computer portal (Punt Neutre Judicial).  
The Civil Registry likewise deserves special  
consideration, given its importance and the  
recent changes in legislation it has undergone, with the establishment of centralised  
information management.

In all these cases, the courts of Catalonia  
would require access to these records and  
files, while the Generalitat would also create  
the corresponding files and records based on  
the transfer of the appropriate part of the state  
archives and the collection and processing of  
new information, from the moment in which independence is declared.

2.4.2 Regulation of court  
procedures and language system

Judicial proceedings are currently regulated  
primarily by Spanish laws, given the current  
distribution of powers between the Spanish  
government and the autonomous communities. Should the Spanish system break up  
there would therefore not be applicable procedural law in force. To avoid the regulatory  
gap that would occur, and for reasons of legal certainty, it would be advisable to keep the  
procedural law applicable at the time when  
the new state is created, incorporating it provisionally into the Catalan jurisprudence, with  
any appropriate modifications, as we wait for  
the Parliament of Catalonia to legislate on the  
matter. The incorporation law should also include the transitional arrangements for its im-

 

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fected cases to the new Catalan courts to be  
assigned to the bodies that replace them and  
are competent in the new judicial organisation. And, secondly, continue the cases in the  
Spanish courts until their final resolution, and  
subsequently recognising these resolutions.  
Either criteria would adequately resolve this  
temporary situation, with each case presenting advantages and disadvantages. Choosing one solution or the other (or a combination of both, could even be differentiated by  
jurisdictions) will depend on political circumstances and specific negotiation established  
with any agreements that may ensue.

The Constitutional Court is a case in point. In  
fact, the only affected cases (at least potentially) would be the appeals issued against  
decrees by Catalan institutions or bodies (or,  
less likely, nationals and/or residents in Catalonia). However, all other procedures processed by the Constitutional Court would be  
repealed. Regarding appeals, and as long  
as the regime of basic rights and liberties applicable to Catalonia were during the given  
period the same as the Spanish Constitution,  
the same criteria applicable to procedures followed in ordinary jurisdiction could be applicable. In any case, from the moment in which  
the new state is established, the resources for  
the protection of fundamental rights should  
follow the provisions of the Interim Constitution  
Law of Catalonia, and could not be brought  
before the Spanish Constitutional Court.

Regarding the issue of judicial executions outside Catalonia issued by Catalan courts and  
executions in Catalonia ordered by external  
courts, outside Catalonia, including, significantly, the Spanish courts, these cases should  
be resolved via the relevant judicial cooperation agreements which should be formalized  
in terms of reciprocity between Catalonia and  
other states, including Spain, following the  
framework of European judicial cooperation  
both in the criminal and in civil spheres, which  
is based on the mutual recognition of judicial  
orders.

2.4.4 Provisional judiciary  
system of government

Since the creation of the new state until the  
approval of a new constitution, it would be  
necessary to establish an interim judiciary  
system for Catalonia, through the Interim Constitution Law. This interim system should not  
predetermine the final institutional model of  
governance for the judiciary adopted by the  
future Constitution. In this case, however, and  
in contrast with other institutions and issues,  
it is not possible to continue with the system currently in force, as it would require the  
creation of a new body similar to the General  
Council of the Judiciary. Thus, the new model  
that would determine the future Catalan Constitution would be defined in such a way that  
would be difficult to reverse.

Joint Committee of the TSJC Board of Governors and the Generalitat Government.  
The models which would have to be used in  
the interim period may be diverse. It would  
seem that the most appropriate model would  
be, in the interim, for the Generalitat Government and the Board of Governors of the High  
Court of Justice to share government functions. This solution provides a certain degree  
of continuity (the Board of Governors already  
collaborates with the General Council of the  
Judiciary in governance of the judiciary)  
and would not prevent the future Constitution from switching to a council system. By  
contrast, establishing an interim council – in  
addition to the added complexity of regulating it and re-creating it – would complicate a  
hypothetical subsequent change of government functions, in whole or in part, towards  
the executive.

In this interim system, the Board of Governors  
of the High Court of Justice of Catalonia could  
assume certain government functions and  
others could be attributed to a joint committee  
of the Board of Governors and the Generalitat Government, equally. Apart from this, both  
the High Court Board of Governors and the  
Justice Department would maintain their cur-

 

87

rent responsibilities. The Justice Department  
would also assume the duties now assigned  
to the Ministry of Justice.

 

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2.5 Law enforcement and defence

ers. Coordination and intelligence are at the  
core of law enforcement practices. Police and  
military forces are alternating functions. What  
differences remain have been partially blurred  
in some cases, a fact that gives some police  
forces more clearly military or defence functions.

Catalonia’s current law enforcement system  
has been built around two main components:  
public safety, provided mainly by local police  
and regional police, and emergency management, combining professional and volunteer  
forces. Alternatively, there is also everything  
related to private security. The model has a  
clear public security outlook.

2.5.1 Defining elements of the  
new law enforcement system

Catalonia, due to its size, economic structure  
and geographical/geopolitical location faces  
risks and threats similar to other European  
countries. It faces no territorial threats from  
its neighbours, at least not militarily speaking.  
In addition, Catalonia will continue to be embedded in the European, international scene  
with strong transatlantic relations, so it will use  
EU internal and international law enforcement  
standards as its benchmark.

The fact of being a country with newly established borders will intensify some risks and  
threats, due to the combination of difficulties  
related to a transition towards a broader law  
enforcement model and the need to restructure the existing model.

Worth noting also are the difficulties arising  
from uncertainty about the degree of collaboration with the Spanish state and the need

While there is already a law enforcement model in Catalonia – based on citizen safety and  
emergency management – we have not been  
able to develop many other components that  
are part of any state’s basic internal security  
structures because they are currently powers of the central government. And, therefore,  
the components related to international law  
enforcement have not been created or developed.

Law enforcement is a public good that a state  
must necessarily provide its citizens. Law enforcement is both a right for citizens and a duty  
for the state, a fact which implies it should be  
provided as a guarantee and also as a service. And in an increasingly interdependent  
world, providing law enforcement requires coordination both internally and internationally.

Law enforcement provision is linked to the  
provision of freedom and justice. Providing  
law enforcement requires supplying various  
instruments, distinguishing between the field  
of internal security (limited to what happens  
inside a country’s own borders) and the field  
of external or international security (linked to  
facts, actors or international, cross-border relations). Providing domestic and international  
law enforcement is linked to many other public  
policies and can take over very different organisational forms.

It must be borne in mind, however, that the law  
enforcement strategies of Western European  
countries and organisations, although distinguishing between internal and international  
law enforcement, focus almost on the same  
threats: terrorism, cyber security, energy security, fighting organized crime and protecting  
basic or critical infrastructures, among oth-

 

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to quickly implement many decisions that increase the complexity of managing the system. We must be very careful and cautious as  
we strive to realise – based on shared interests and with the support of European organisations and third countries – the coordination, transfer of information and joint work with  
Spain to prevent cross-border and shared  
threats.

2.5.2 Options and actions in the  
field of internal law enforcement

Investigation of internal and transnational  
organised crime. The immediate actions to  
be taken are as follows:  
• Strengthen existing capacity of the Mos-

sos d’Esquadra (CME) as specific unit.

• Coordinate the functions of the CME unit to  
the future intelligence service, awaiting the  
decision to see if the intelligence service  
becomes a specific unit, as is the case in  
other countries.

• Initiate actions under standards comparable with Interpol, Europol and other similar  
bodies.

Terrorism and drug trafficking. The immediate actions to be taken are as follows:  
• Create a counter-terrorism unit based EUdeveloped tools, approaches and assess-

ment/guidance documents. We must pay  
particular attention to the significant presence of jihadism in Catalonia and what we  
know about the radicalisation processes of  
its members. We could envisage subsequently hiring personnel from similar services in existence today.  
• Pursue, within a co-operation scenario, the

transfer of existing information and, in turn,  
provide coordinated monitoring of changes.  
• Request advice and establish collaboration agreements with the main specialised  
agencies in Western countries.

Border control. The immediate actions to be  
taken are as follows:

• Create a border control unit and provide  
it with proper facilities, with international  
advice. This unit should fulfil functions and  
have the expertise to act as border police,  
customs police, and coast guard.

• It should be developed as an embryo of  
one or more units for border control or protecting national spaces.

• Study the more complicated case of airspace control, seeking initial support to  
implement it until the proper equipment is  
made available.

• Prepare tenders or procedures to have the  
necessary equipment.

Civil identity registry. The immediate actions  
to be taken are as follows:  
• Create an identity registry unit within the  
CME.

• Set up a transitional information transfer  
mechanism with Spain which could foresee, in the future and depending on a possible dual-nationality scheme, permanent  
collaboration and information transfer systems.

• Set up the transfer of databases and logs  
on vehicles and driving licenses, as well  
as mechanisms for cooperation and coordination with Spain and other countries.

Immigration. Establish, with advice from the  
EU, an initial collaboration mechanism with  
Spain while a specialised group – independent from CME – is created and provided with  
staff and equipment.

Arms control. The immediate actions to be  
taken are as follows:  
• Create an arms control unit as part of CME.  
• Set up a transitional information transfer

mechanism with Spain which could foresee, in the future and depending on a possible dual-nationality scheme, permanent  
collaboration and information transfer systems.  
• Set up the transfer of databases and re-

cords on the matter, with cooperation and  
coordination mechanisms with Spain and  
other European countries.

 

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Environment. The immediate actions to be  
taken are as follows:  
• Create an environmental protection unit  
– initially as part of CME – leveraging the

existing elements and partial capabilities,  
including Rural Agents.  
• Establish coordination mechanisms and  
seek advice from the EU and internation-

al, specialised organisations in Spain to  
ensure that we meet standards and best  
practices.

Intelligence. The immediate actions to be taken are as follows:  
• Begin building a civil and multidisciplinary  
intelligence service, with the legal frame-

work to ensure that its actions are consistent with the rule of law and guaranteeing the protection of fundamental human  
rights. Do so seeking international advice  
– from diverse sources. Its basic function  
would be to strategically collect, analyse,  
interpret and process information to favour  
decision-making.  
• Ensure coordination of services through

proprietary service instruments and others  
that the Department of the Presidency may  
recommend or develop. This coordination  
does not undermine the fact that there may  
be several independent services, or at  
least operating units.  
• Establish early co-operation and coordina-

tion with Spain and European and Western  
countries and organisations.

Cybersecurity. The actions to be taken, taking advantage of the existing public capacities and also in the private industry field, are  
as follows:

• Create a cybersecurity unit or service, with  
advice and operational support from external companies and services, and based  
on existing capabilities.

• We recommend starting with the plan of  
action against cybercrime adopted by the  
Council of Europe (2010), the various Europol guidelines and the EU’s Cyber Security Strategy (2013).

2.5.3 Taking on the civil  
protection and emergency  
management tasks guaranteed  
until now by the central  
government

It will also be necessary to take over the civil  
protection and emergency management tasks  
guaranteed until now by the central govern-ment. In this area, a new plan for civil protection and emergencies should be prepared,  
with a restructuring in keeping with Catalonia’s  
condition as a new state, both in terms of institutional and technical/operational bodies.  
Moreover, if necessary, an operating unit for  
addressing complex emergencies should be  
established based on the Firefighter Corps  
and the City Council, and protocols and cooperation agreements should be established  
with emergency services from neighbouring  
countries.

2.5.4 International coordination  
with police forces

From the point of view of international police  
coordination, within the EU, as long as Catalonia is not a full member, coordination (using  
permanent links and cooperation protocols)  
and compliance with the plans and standards of the European Police Office (Europol)  
should be ensured. Compliance should also  
be guaranteed with the European Agency for  
the Management of External Borders of the  
Member States of the EU (Frontex), the European Agency for cooperation in judicial matters (Eurojust) and the Standing Committee on  
Internal Security (COSI). And internationally,  
we should request admission to Interpol.

2.5.5 Options and actions in  
the field of international law  
enforcement

Catalonia will have to resolve, in the context  
of full integration as a member of the international community, many issues related to

 

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its presence in security agencies, treatises  
on the matter, and especially coordination in  
international security. So far, all these issues  
have been the responsibility of the central  
government.

We consider four cases: transatlantic relations  
with the United States, membership in the  
OSCE, membership in NATO, and membership in EU security structures and agencies.

Regarding transatlantic relations and treaties  
with the United States, it would be necessary  
to formally demonstrate from the outset Catalonia’s desire to have close relations with the  
United States and in this context, forge strong  
transatlantic relations.

As for membership in the Organisation for Security and Co-operation in Europe (OSCE),  
which plays an important role in human rights  
mediation and protection issues, we consider  
that, despite how difficult it is to be accepted  
(requires unanimous approval) we should express Catalonia’s interest in being a member,  
sign and implement the principles and agreements of the organisation.

As for membership in the North Atlantic Treaty Organisation (NATO), worth noting are the  
changes in the organisation, the new membership mechanism and the organisation’s role in  
the creation of the Partnership for Peace programme, based on the bilateral relations between individual countries and NATO, where  
almost all European countries are present.  
The following could be considered:

• Request and negotiate Catalonia’s participation in the Partnership for Peace.  
• Decide on possible membership at a later  
stage, once the major defence and securi-

ty options under the constitutional process  
can be duly considered.

In terms of membership in EU security structures and institutions, it is worth noting that  
full membership implies some very important  
tools in the field of international security, essentially intergovernmental, such as the Com-

mon Security and Defence Policy CSDP, part  
of the Common Foreign and Security Policy.  
We believe that the various EU treaties, strategies and instruments should be taken as a  
starting point in designing Catalonia’s security  
policy.

2.5.6 Operating model, bodies,  
contingents and organisation

There are at least three problems that must be  
solved in the medium and long term and for  
all three there are several options to consider  
before choosing.

First, especially in the area of internal security, is everything relative to the model of relationship or consolidation between local police  
and the Mossos d’Esquadra.

The second major problem concerns how to  
organize defence forces, or, stating it clearly,  
the option whether to create an army or not,  
and if so, the options on existing models to implement the decision.

Catalonia’s situation presents an important advantage. It can create a model from  
scratch, bypassing the problem now faced  
by European countries, who are quantitatively  
and qualitatively changing their armies, created centuries ago, when armies were created  
to defend borders from possible invasion by  
other armies. This approach no longer makes  
sense due to a lack of territorial threats.

The issue is now looked at very differently  
from how it was seen in the 19th and 20th centuries. Catalonia can opt for two general models: with or without army. If the country were to  
opt to forego a traditional army, in the sense  
of an army in widespread use in the western  
world in the 19th century, there would be two  
main ways to organize the defence policy:

• Expand the functions of the Mossos  
d’Esquadra force, making it take over external and/or defence functions, which  
would imply a partial militarisation of some  
parts of the Mossos units and forces.

 

92

• Create an autonomous National Guard  
which would handle security, defence or  
emergency management functions, coordinated with other law enforcement agencies.

The second major model is to create an army  
which, given the new conditions, could be  
very different from the typical armies which  
existed until the end of the 20th century. Naturally, there could be various effective approaches for structuring this army and making  
it operational.

Thirdly, once either of the options is decided  
(with or without an army), and in each case a  
choice is made for one of the possibilities, the  
next step would be to make decisions regarding force size, control, selection processes,  
equipment and temporary admission of foreigners. We must insist, however, that major  
decisions should be taken during the constituent process, although the operational and implementation decisions will be postponed.

2.5.7 Cybersecurity

Given the importance of cyberspace in today’s society, the concept of cybersecurity is  
increasingly present in the personal, professional and, above all, government spheres.  
There are many cases where computer attacks have jeopardised economic sectors,  
critical infrastructure and even government  
information systems.

Catalonia is aware of this threat and since  
2009 has a national plan in place to boost ICT  
security in Catalonia, deployed by the Information Security Centre of Catalonia (CESICAT).

However, not all protection objectives are optimally covered by this body. While the perimeter and interior of Generalitat ICTs are under  
constant monitoring and control by CESICAT,  
and although there is some co-operation between this agency and law enforcement (Mossos d’Esquadra), more capabilities must be

deployed in the field of cyber defence and intelligence, understood as the ability to investigate and prevent future attacks.

In order to strengthen this aspect of cybersecurity in the government sector, we should  
take into consideration the adoption of the following measures:

• Maintaining co-operation with different  
Spanish organisations, such as the CCNCERT and INTECO, to ensure the security of common cyberspace; ensuring that  
agencies responsible for implementing  
the National Information Security Plan can  
defend the country from cyber-attacks;  
starting conversations and making contacts with other Computer Emergency Response Teams (CERT) in the Catalan and  
international spheres, in order to have as  
many allies as possible in this field.

• The protection of the public data of citizens  
of Catalonia, as well as data processing  
centres (DPC) used by the Government,  
through the preparation of a disaster recovery plan with alternatives, if necessary,  
outside Catalonia.

• The preparation of databases for having  
an operational electoral system, identification documents and an Inland Revenue  
system ensuring suitability and accuracy  
of data in the treatment of citizens and  
businesses.

• The creation of a single ICT command  
structure in Catalonia, which includes the  
main agencies with jurisdiction in the matter.

Interpol. Established in 1923, the International Criminal Police Organisation currently has  
190 members and focuses mainly on public  
safety, terrorism, organised crime, human trafficking, arms and drugs, child pornography,  
money laundering, financial crimes and corruption. It has two main governing bodies, the  
General Assembly and the Executive Committee, as well as a Secretary General.

Membership is by a favourable vote of twothirds of the members of the General Assem-

 

93

bly. Given the current situation of the fight  
against certain forms of international terrorism,  
it seems obvious that it would be in nobody’s  
interest for Catalonia to remain outside this or-

ganisation. Therefore, membership should be  
sought during the first phase of integration in  
the international community.

 

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2.6 Infrastructure: energy and water supply  
and information technology and communication

2.6.1 Power supply

With 2009 data, energy consumption in Catalonia stands at 14,550 kTEP/year, of which  
only 5% comes from own resources. Primary  
energy consumption is distributed as follows:  
47% oil, 25% gas, 20% nuclear, 7.5% renewables and waste and 0.5% coal.

Catalonia, like most European countries, has  
no ability to self-supply crude oil, natural gas  
or uranium. However, it does have appropriate facilities and processes to handle supply,  
storage, production, processing and distribution of derivatives to meet energy demand  
and ensure optimal consumption.

Likewise, the Catalan electrical system is  
structurally oversized and can guarantee  
100% of demand. It has a 40% power safety  
margin, 20% of which is technically required  
reserves and 20% is surplus capacity. With a  
hypothetical 3% annual growth in power demand, the current Catalan power generation  
capability could successfully cover the Catalan market until 2020, without having to build  
new plants. The Catalan electrical system  
could supply energy at prices 30% lower than  
the Spanish power system. An independent  
Catalonia would be one of the EU countries  
with the lowest electricity prices.

The 2012-2020 Catalan Energy and Climate  
Change Plan also provides for the entry into  
service of new interconnection lines that will  
significantly boost the already good Catalan  
exchange capacity with its adjoining systems.

In view of the major liberalisation and interconnection of the energy market, ownership  
of most of the energy infrastructure in Catalonia belongs to private investors and multina-

tional companies who handle the full cycle of  
the business, which ensures the availability of  
energy, maintenance, development and expansion of their facilities, as well as the most  
appropriate management. In any of the future  
circumstances that could play out, these companies consider Catalonia a significant part  
of their market, and business interests themselves will ensure that management will be as  
efficient and standardised as possible.

The contribution of renewable energy production in Catalonia is currently still very small and  
it would need to increase. Therefore, commitment to renewable energy stands out as one  
of the priority energy strategies, both end-use  
technologies such as thermal technologies  
and for production of electricity. Likewise, the  
future Catalan energy system should promote  
enhanced energy recovery from waste, both  
renewable and non-renewable.

Measures. To ensure a proper energy transition in Catalonia during the transition towards  
independence, a series of measures must be  
adopted, including the following:

• Securing strategic suppliers and renewing  
and continuing the regulatory framework  
of the energy policy, using the existing  
contracts with companies that already provide these services in Catalonia.

• Ensure compliance with regulatory provisions on energy security.  
• Establish and develop rules, regulations,  
planning and implementation of the Cata-

lan energy system. This would imply negotiating the main installation transfers or  
uses, regulating and operating agencies  
(Spanish) and services that might have to  
be replicated in Catalonia.  
• Ensure energy supply in the country, pay-

 

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ing particular attention to the control of facilities located at ports and airports.

• Have a shared vision of all energy systems  
and their installations, and know how to  
ensure protection.

• Have a good system for regulation and  
management of the energy market to ensure competitiveness of supply and environmental protection.

• Conduct an audit of the entire system to  
get an accurate picture and provide appropriate service, economically weighted  
based on actual costs.

• Create a management team that would  
take over the political and technical functions which would ensure the proper operation of the energy system.

• Fix regulated costs of energy prices (oil,  
electricity, etc.) and ensure the tariff structure.

• Subscribe Catalonia, following the established procedures, to international energy  
organisations.

• Ensure that energy services are fulfilled in  
any stage. Apply international law, especially in the nuclear field.

• Ask for the delimitation of Catalonia’s  
coastal waters to ensure the use of fossil  
energy resources (oil, gas), renewable energy (wind, waves, currents) and facilities  
currently under construction (Casablanca  
oil well).

Measures especially affecting the gas sector

Remain connected to the peninsular gas system, ensuring interconnection with France  
– via MIDCAT – and promoting an organised  
secondary natural gas market (gas hub),  
which could include all southwest Europe.

Measures related to nuclear energy

Continue uranium conversion and enrichment  
processes and production of fuel elements in  
the current plants and factories located outside Catalonia; not modify the origin of uranium or contracts with fuel suppliers; tempo-

rarily allow ENRESA to continue radioactive  
waste management, and analyse and decide  
on an centralised, interim solution for radioactive waste.

Measures related to renewable energy

Convert the use of renewable energy sources and energy efficiency as a national priority; promote R&D in this area; put in place a  
regulatory framework to develop and reward  
own these technologies and ensure economic  
viability; and integrate renewable energy to  
future electric energy storage systems and interconnection with neighbouring countries.

Electricity-related measures

International power contracts should be established in coordination with the Iberian Electricity Market (MIBEL).

Once the system is stabilised and in regular  
operation, the priority would be to implement  
the goals set out by the EU for 2020 and summarised in its 20/20/20 Strategy. Coordination  
agreements should also be set up with Spanish energy operators to ensure the construction of new priority facilities and natural gas  
and electricity connections with France.

At the same time, it would be advisable to establish a technical committee to coordinate  
energy management together with Spain and  
France, negotiate with the Spanish government the possibility of becoming a member of  
ENUSA and increase ties with Mediterranean  
countries in energy-related areas.

Among other measures, we should also anticipate and adopt a solution for the future  
location of Catalan nuclear waste; create the  
necessary measures to promote bilateral  
agreements between electricity market operators, both for buying and selling energy;  
increase energy self-sufficiency; reduce dependence on fossil fuels and improve energy  
efficiency throughout the process of generation, transmission, and especially in reducing  
primary and final energy consumption.

 

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Finally, it would be necessary to improve the  
quality of energy services, modernise distribution networks, reduce environmental impacts  
and increase social awareness on the management and efficient and responsible use of  
energy. And also track energy oligopolies and  
influence lobbyists’ influence.

Responsible and collaborating management. In view of the liberalisation and interconnection of the energy market, a scenario  
of belligerence with Spain or industry companies is not likely. Collective and responsible  
management among all parties is more likely. In the case of non-collaboration, however,  
the Catalan energy system would operate  
with total normality and energy supply would  
be guaranteed. The new state should adopt  
measures relating to renewals of agreements  
and contracts with companies that currently  
provide services and negotiations for transferring assets with Spain.

In this regard, it is important to establish a  
fluid and ongoing connection with European  
energy agencies, especially those linked to  
energy security. This should allow finding European cooperation channels.

Finally, Catalonia should study the creation  
or adaptation of some technical bodies such  
as the Catalan Energy System Supervisory  
Agency, a Catalan Electric System Operator, a  
Catalan Gas System Operator and a Nuclear  
Safety Council.

2.6.2 Water supply

Erratic rainfall, typical of the Mediterranean  
climate, compounded by the historical lack of  
investment in supply infrastructure and deficiencies in water quality as a result of pressure from human uses, have contributed to the  
past establishment of a water system in Catalonia with a high risk in terms of water supply,  
especially in the Ter-Llobregat management  
system, where more than 80% of the population of Catalonia lives. Currently this risk has  
been greatly reduced.

The adoption of the Water Framework Directive (WFD) has been a watershed event in the  
conception of water and management policies. According to the WFD, on 23 November  
2010 the Generalitat Government approved  
the Management Catalonia River Basin District Management Plan (PGDCFC), based  
on radically different foundations than those  
which inspired the Hydrological Plan for Catalonia basins in the last quarter of the 20th century. The PGDCFC is the water planning tool  
for the 2010-2015 period within the territorial  
jurisdiction of the Generalitat of Catalonia and  
has a double objective:

Environmental: go from a performance of  
48% to 56% in very good or good ecological,  
chemical and/or quantitative condition of wa-ter bodies. For Catalonia as a whole, the goal  
is to go from 60% to 67%.

Water availability: resolving the historical risk  
situation mentioned, ensuring that the supply  
systems do not face emergency situations under any known weather situation, drastically  
reducing the frequency and intensity of use  
restrictions (including agricultural irrigation)  
and ensuring environmental flows for water  
ecosystems. The proposed actions, some of  
which have already been implemented, are  
aimed at maintaining this guarantee until the  
2027 horizon.

The PGDCFC has a program called PGDCFC  
Measures Program which specifies the set of  
measures both in terms of infrastructure and  
management, funding and promotion, in order  
to achieve the objectives outlined in the Plan.  
It has a ten-year projection (2006-2015) and is  
divided into four action areas: supply, sanitation, environment and irrigation system modernisation.

The legal and technical framework of the EU  
is available for planning, regulation, management and control of water in Catalonia until  
2027 (WFD horizon), as well as measures to  
be implemented in order to achieve the objectives set out, in view of the development and

 

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approval of subsequent management plans.  
The roadmap seems clear.

The water risk for Catalonia is directly correlated to the likelihood of suffering water use  
restrictions due to the effects of a drought or  
a very low level of water reserves, for example. In recent years this structural deficit has  
been especially limited to the Ter-Llobregat  
management system, thanks to the partial implementation of infrastructures contained in  
the program of measures created as a result  
of the 2007-2008 drought. Today, the deficit in  
the Ter-Llobregat system is almost nonexistent, due to the significant water savings that  
has been carried out.

Moreover, current DCFC water reserves ensure the satisfaction of ordinary demands  
for a period of 15 months (late spring 2015).  
However, in the medium to long term, some  
action may be necessary in order to address  
structural improvements to ensure supply, in  
accordance with the water planning stipulations. The supply vulnerability in the Intercommunity Catalan Basins (CCI) is extremely low  
and therefore the intrinsic risk is negligible.

In the process of transition towards independence, the water system risk in Catalonia may  
also be determined by factors completely beyond rainfall levels, the state of water reserves  
in reservoirs, aquifer piezometric levels, desalinated water production and the volume of  
reused water. The attitude of the Spanish government in the exercise of its responsibilities  
for regulating and granting of water to the CCI  
could also aggravate this risk, although for  
operational, European legislation and international nuclear safety reasons, we consider this  
a minor and highly unlikely risk.

To reduce the risk exposure of the Catalan  
water system during the transition towards independence, the Catalan Government should  
be able to regulate the water supply system  
by means of such a regulatory mechanism  
such as the ACA so it can act as a water regulator in the interim.

There are two types of measures that should  
be taken into account:

Measures to reduce inherent risks in water  
supply during the transition period. These  
include assuming and exercising full powers in the management and control of water  
resources and resume supply activities as  
specified in the action programme: recovery  
of wells and aquifers, modernisation of DCFC  
irrigation systems and re-use within less than  
20 km for water treatment plants.

A new 2016-2021 management plan and a  
new action programme should also be drafted.  
These should include the entire Catalan river  
basin and agreements relevant to the international management of river basins affected with  
Spain, Andorra and France, and establish interim agreements with Spain on water management and until the shared management of the  
international Ebro river basin is not negotiated,  
in accordance with the WFD. Similarly, optimal operation of the over 440 water treatment  
plants in Catalonia should be ensured.

Measures to prevent extrinsic risks stemming from Spain’s non-cooperation attitude. Mediation or appeal mechanisms  
with the European Union should be explored  
should the CHE drinking water supply service, irrigation system or aquatic ecosystem  
maintenance be affected. Likewise, alternatives should be sought for finding water supply wherever possible: groundwater reserves,  
pumping water to irrigation canals, diversion  
of the Siurana to the Ebro, etc.

Once the new Catalan State is established,  
water planning should be defined with measures such as the following:  
• Analyse and, if appropriate, amend tax law

to resolve current water rate tax differences.  
• Address whether the water cycle needs to  
be unified into a single legal framework.

• Pursue a water planning policy beyond  
2027.  
• Take into account the impact of climate  
change on the water cycle.

 

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• Review the administrative operation of  
wastewater treatment systems and define  
the powers and responsibilities of local  
and supra-local in the management and  
operation of these systems.

• Resume sanitation efforts (improving water  
quality), to move forward in improving the  
quality of rivers and groundwater.

• Advance in environmental actions  
(improvement of aquatic ecosystems), taking into account the country’s rivers (especially the Ter, Llobregat and Segre).

• Rethinking the use of the Garonne river  
area.  
• Modernising irrigation systems, harmonising uses of the Segre and Noguera Pal-

laresa and reviewing the hydroelectric operation scheme.  
• Foreseeing the possibility of water relief  
(for critical cases) from the Ter-Llobregat

Water Consortium (ATL) to the Tarragona  
Water Consortium (CAT).  
• Focusing investments in the most intensive  
distribution and treatment networks, and

the treatment plants of the Intercommunity  
Catalan Basins. Addressing the modernisation of the Canal d’Urgell to improve efficiency ratings.  
• Applying the European directive for im-

proving the environmental status of the  
marine environment no later than 2020.  
• Encouraging the promotion of public participation in decision-making about the

management, regulation, planning, inspection and control of water in Catalonia.  
• Anticipating and preventing the consequences for water supply derived from

achieving the saturation horizon of the  
Barcelona Metropolitan Region (RMB).  
Analysing and evaluating possible alternative water supply measures in a long-term  
horizon (interconnection of urban water  
supply networks, new Foix and Tordera II  
desalination plants, Rhône transfer, connection between Segre and/or Ebro basin  
and coastal basins, and long-distance reuse (Besòs to Ter).

2.6.3 Communication and  
information technology

Modern societies, such as Catalonia, currently  
live in total dependence on technology. Everyday activities such as watching television, getting cash from an ATM, checking social media  
and making a phone call depend to a greater  
or lesser degree on information systems and  
telecommunications networks, what is called,  
generically, information and communication  
technologies (ICT).

Since they are key to normal society life, ICTs  
should be able to operate without significant  
problems, and this normal operation should  
be ensured exactly at the height of the constitution of the new Catalan state, which is  
why it is important to establish co-operation  
scenarios with Spain. In this area the adoption of the following measures should be considered:

• Coordinate with Spain the orderly transfer  
of ICT responsibility and ensure that at no  
time any power or contract be exposed to  
a situation of legal uncertainty.

• Create a legal/technical team to begin the  
process of preparing a draft law on critical infrastructures, including among other  
things, the definition from an ICT approach,  
the obligation of managing companies to  
create plans for disaster prevention and  
recovery, physical and cyber protection  
of facilities, co-operation with the Mossos  
d’Esquadra and/or security companies to  
ensure physical integrity and alignment  
with the national cyber security plan. Likewise, we should think about the desirability of establishing the role of a government  
representative in managing these companies in case of emergency.

• Create a legal/technical team to begin the  
process of preparing a draft decree whereby relations with Catalan radio amateurs to  
serve as a communication alternative in  
the event of disaster, in line with European  
regulations that allow for this.

• Start the preparation and drafting of a draft

 

99

law on electronic communications (telecommunications and broadcasting) to ensure legislative continuity in this area.  
• Begin to prepare numbering and frequency plans that would correspond to the new  
state.  
• In line with European regulations, assess  
the possibility of developing a law for the  
telecommunications regulatory body (currently the Telecommunications Market  
Commission, CMT) which in the new state  
would have to be the union of the CMT and  
the Broadcasting Council of Catalonia, as  
in other European countries.  
• Start making international contacts with  
the international governing body of ICTs,  
the International Telecommunication Union (ITU). It would also be advisable to establish contacts with organisations such  
as the Internet Corporation for Assigned  
Names and Numbers (ICANN) and others  
in the industry that could help prepare the  
technical plans and legislation, as is common worldwide.

Broadcasting. As far as broadcasting is concerned, it should be noted that television and  
radio are essential services for citizens, but  
especially to generate a climate of normality. It  
is therefore very important to not interrupt this  
service.

In Catalonia, the radio and television signal  
reaches 85% of the population through the  
Collserola Tower and 8 major repeaters. For  
it to reach 99.6% of the population, 500 additional towers have had to be built.

In this area, coordination efforts should be  
made with Spain for the transfer of the radio  
spectrum for the Catalan territory, as well as  
the contracts and broadcasting rights of the  
various media groups, ensuring the safety  
of the audiovisual telecommunications infrastructure, such as the Collserola Tower, the  
8 major repeaters and 500 towers scattered  
throughout the region, and begin drafting a  
disaster recovery plan.

Telecommunications. The vast majority of  
citizens have a mobile phone allowing voice  
communication and, in many cases, Internet  
connection. This technology is based on networks and antennas operated by private companies due to the liberalisation of the telecommunications market.

In addition, the Generalitat of Catalonia has  
a fiber optic network (XFOCAT), currently under implementation, which will connect most  
of its offices. Any surplus available from this  
network will be made available to operators  
for access in any town in Catalonia. Also, regarding the Internet, operators can exchange  
data with the “network of networks” through  
Internet traffic exchange points. Catalonia has  
CATNIX as an Internet data exchange point on  
the Internet, where all operators have access.

There is also a digital and encryption-enabled  
voice communication network called RESCAT,  
which is used for emergency service communication. This network uses the same network  
infrastructure as broadcasting (Collserola  
Tower, main repeaters 500 additional towers)  
to operate.

In this area the adoption of the following measures should be considered:  
• Agree with Spain to maintain the +34 international prefix until Catalonia obtains its

own international code.  
• Protect the RESCAT network and create al-ternatives in the event of any disaster.  
• Protect government communications,

adopting appropriate protective measures  
regarding voice and data encryption at the  
appropriate levels.  
• Deploy the fiber optic network in Catalonia  
(XFOCAT) as quickly as possible, especially with regards to the strategic backup  
points.

• Coordinate and develop a plan for the protection of wiring, voice and data facilities,  
mobile phone towers and Wi-Fi facilities, to  
protect them against disasters within the  
critical infrastructure legal framework. This  
plan should include protection against in-

 

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terference and certification of security in  
communications to Catalonia.

Transport. Transport, whether road, rail, sea  
or air, is of crucial importance in ensuring normal life for people and also for tourists. Modes  
of transport rely, to a greater or lesser extent,  
on ICTs.

On the one hand, air and sea transport rely on  
electronic communications to communicate  
with port and airport infrastructures. Currently,  
all communications in these two transport areas are fully controlled by Spain. Everything  
seems to indicate that during the transition  
things would work with complete normality,  
given the strong dependence on international  
standards, the implications for user safety and  
the economic implications which a malfunction in these transport methods would entail.

On the other hand, rail transport depends on  
control centres for proper operation, since  
manual management would result in partial  
operations. Having this service stop would  
have effects on a large part of the population  
that uses it daily, and on the economy.

Finally, in terms of road transport, special note  
should be taken of road signage, which might  
stop working if there were a problem with the  
ICTs supporting the system. It should also be  
kept in mind that, increasingly, the logistics  
and merchandise distribution industry works  
with work order and distribution systems managed with information systems and, therefore,  
an ICT failure would endanger the related  
economic activities, for example food delivery  
to shops.

In this area, Catalonia would have to coordinate with Spain a transfer of assets associated to air, maritime and rail transport, and  
strengthen monitoring of information and  
communications systems and telecommunications installations in rail control centres and  
the Catalan Traffic Service.

Essential services. Currently, the government has significant amounts of citizen data

on file, which helps it manage the services  
provided pursuant to its attributable powers.  
These data include census, medical history,  
legal situation, tax data or academic qualifications of a person, among others.

Some of the information systems are owned  
or are under the control of the Generalitat of  
Catalonia or local authorities. But others are in  
the hands of Spain, and the Generalitat has  
access to consult records. We have detected  
that up to 150 software applications crucial to  
the Generalitat’s operation require databases  
located in Spain’s IT systems.

There are other important data that are not the  
government’s responsibility: the financial data  
of citizens. This information is essential, for  
example, so that cash can be withdrawn from  
an ATM, provided that it is connected with  
the bank’s head offices. The financial system  
is therefore based on proprietary information  
systems where data is stored and telecommunications networks that connect the various banks and ATMs with the head office. Protecting the financial system ICTs should be a  
priority in order to guarantee citizens’ normal  
economic activity.

The universal postal service, “Correos” in  
Spain, is a service which all states offer citizens and which Catalonia would provide were  
it to become an independent state. Currently,  
the Generalitat does not have any control over  
the management of the postal service in the  
Catalan territory.

Emergency services are essential, and their  
proper operation affects other services such  
as telephone connection (in this case, 112),  
the operation of the voice communication  
RESCAT network and access to medical records, vehicle license plates and legal status  
of citizens.

Therefore, in order to guarantee public government services, postal services, financial  
services and energy and water supply, the  
state would have to coordinate with Spain the

 

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availability of databases which Spain owns in  
order provide these public services in Catalonia, protect the public data of citizens of Catalonia and coordinate cybersecurity in order to

ensure smooth operation of all public and private services, including financial institutions,  
transport, energy, water, 012, 112, and any  
services essential to people’s normal life.

 

3 The relationship between Catalonia  
and Spain, the European Union and  
the international community

 

105

3.1 Cooperation between Catalonia  
and Spain

tory or GDP – Austria, Belgium, Denmark, Finland, Ireland, Norway, Portugal, Sweden and  
Switzerland, and even the Netherlands – two  
are part of Benelux, four are members of the  
Nordic Council or the Council of the Baltic Sea  
States, one is a member of the British-Irish  
Council and eight are members of the EU. So  
while it is true that the state is still the key agent  
for political, social and cultural interaction, it is  
nevertheless clear that sovereignty is increasingly used to facilitate cooperation and not to  
ensure the protection of internal markets or  
isolation within a country’s own borders. And,  
indeed, in view of the gradually lesser importance of traditional boundaries and the boost  
in interaction capacity, in the context of deepening common European policies involving  
transfer of powers – in currency, debt policies  
and soon in financial, labour and fiscal policies – we must consider very seriously if, going forward, formulas such as the federation  
or confederation of states, which is politically  
costly, might give way to these new models of  
cooperation between states, much more functional and efficient, aligned with the plurality  
of sizes and geographies, in a new paradigm  
that has been described as antiWestphalian.

Perhaps the reasons mentioned above explain  
that one of the most significant recent cases of  
agreed secession, the Czech Republic from  
Slovakia in 1993, posed no special problem  
whatsoever.

In parallel, then, with these close-knit relationship networks, and as a result of belonging  
and openness to other political, economic,  
cultural and knowledge spheres, the signing of treaties and agreements has led to an  
extraordinary blurring of the separating character of these old boundaries. Borders have

Catalonia’s geostrategic position within the  
Iberian Peninsula – extensively studied by  
geographers such as Pierre Deffontaines and  
historians such as Vicens Vives – and its long  
history as part of Spain have forged a very  
strong network of relations in all areas. Beyond  
the political bond, the following ties could be  
highlighted as examples:

• Demographic movements. Only during  
the 20th century, more than three million  
people born in the rest of Spain moved to  
Catalonia.

• Trade interdependencies. In 2012 Catalonia exported to the rest of Spain goods  
worth 49 billion euros – 34% of its production – and imported from the rest of Spain  
goods worth 26 billion (Interreg, 2013).

• Deep cultural ties. 50.7% of Catalans four-teen years and older identify Spanish as  
their personal “language of identification”  
(Language Policy Report 2012).

Furthermore, the globalisation process has  
extended these links to the rest of the world,  
particularly to the European Union, to which  
it belongs since 1985, i.e., for nearly thirty  
years. In this case, all sorts of exchanges and  
all types of cooperation have also been on the  
rise (only at the business level, in 2012 Catalonia exported 40.2% of its production abroad,  
while the rest of Spain exported 34%) (Interreg, 2013).

As a precedent for this progressive globalisation and the gradual disappearance of borders, particularly in Europe after the Second  
World War multiple forms of interstate cooperation began to emerge, even before the  
creation of the so-called common market.  
Right now, if we look at countries comparable to Catalonia in terms of population, terri-

 

106

gone from separating– with closed and guarded checkpoints – to allowing a collaborative  
and interrelated cooperation. Treaties such  
as Schengen, the first signed in 1985 and  
the second in 1995 with the aim of ensuring  
the free movement of goods, services, capital, workers and travellers, have even led to a  
physical dismantling of the old police border  
checkpoints, in a short time. But especially  
European policies in favour of cross-border  
relations have multiplied co-operation projects and have significantly reduced the old  
barriers between states.

Seen from this perspective, then, the independence of Catalonia from Spain should not  
lead to insurmountable difficulties to reach a  
level of relation and exchanges similar to the  
present. This is especially the case if the negotiation does not question Catalonia’s continuity within the EU. But even in the hypothetical case that Catalonia were left temporarily  
out of the EU, as long as the new Catalan state  
subscribed treaties such as Schengen and  
EFTA (European Free Trade Association), to  
European and international organisations and  
new networks and spaces beyond the EU,  
once accommodated to the new rules of the  
game, the exchanges between Catalonia and  
Spain would gradually flow back to what they  
have been until now.

Some technical questions will have to be  
solved, however, such as the possible dual  
citizenship for Catalans who do not wish to  
sacrifice their Spanish nationality. Other issues would be how to legally express the citizenship rights of current residents in Catalonia unwilling to avail themselves of the new  
Catalan nationality, or Catalans who do not  
live here now but who would like to have Catalan nationality. It will be crucial to find the best  
formulas for respecting national, cultural and  
linguistic minorities who would make up the  
hypothetical reality of an independent Catalonia. But it is obvious that in these matters we  
would find legal solutions in order not to violate individuals’ desires, trying to accommodate the feelings of belonging not to hamper

the free movement of people, and especially  
to be exemplary in our regard to diversity and  
minorities.

Based on all this, we propose scenarios of  
substantive improvement and stronger forms  
of cooperation and less marked by suspicions  
than the current relationship. In this regard, we  
present cooperation models inspired by existing ones, which rather than closed models  
must be seen especially as an illustration of  
the new opportunities that the independence  
of Catalonia could offer.

It’s worth remembering, finally, as has already  
been mentioned, that to understand the ambition of the types of proposals made, it must  
be understood that the national transition process, beyond the initial separation, should  
end up triggering a radical transformation in  
how each of the political nations – Spain and  
Catalonia – are conceived. Therefore, it should  
lead to an abandonment of old cultures rooted  
in an uneven relationship of imposition and  
submission.

3.1.1 Cooperation models.  
Iberian Council or CatalanSpanish Council

Iberian Council. The first proposal is more  
ambitious, but for this same reason more defensible due to the intended inter-territorial  
cooperation objectives. The idea would be  
to propose the creation of an Iberian Council,  
fashioned after the Nordic Council, formed by  
the four states of the peninsula: Spain, Portugal, Andorra and Catalonia. The reasons for  
this alliance, apart from previous bonds of various natures, the common interests in all fields  
and the possibility of finding a formula for cooperation which would encourage these interests and reinforce each country’s influence,  
especially within the EU. The Iberian Council, according to 2012 data, would include a  
population of over 57 million inhabitants and a  
GDP of 1.196 trillion, with a per capita GDP of  
above 21,000 euros.

 

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The Iberian Council, following the model of the  
Nordic Council, may have the following structure:  
• A Parliamentary Council, representing the

respective parliaments of each state in approximate proportion to its population. The  
agreements would be suggestions which,  
to be effective, would have to be approved  
subsequently by each country’s parliament and state governments.

• A Cabinet focused on intergovernmental  
cooperation constituted by the prime ministers or presidents of each state, although  
the minister for Iberian Cooperation would  
participate in ordinary sessions. The Cabinet would have a rotating presidency.

• A permanent General Secretariat.

Matters within its area of competence, which  
could be organised in commissions constituted ad hoc, could include the following:  
• Environmental, energy and water policies.

• Law enforcement and defence policies.  
• Cultural, sports and communications cooperation.  
• Industrial, trade and financial policies.  
• Agricultural and fishery policies.  
• Infrastructure policies.

• Migration policies.  
• Educational, health and research policies.

If we followed the example of the Council of  
the Baltic Sea States, we could consider the  
possibility of establishing a second level of  
association, defining an observer status with  
countries like Morocco and other territories  
– beyond the European Union – with whom  
establishing specific cooperation channels  
would be considered advantageous.

Catalan-Spanish Council. The second proposal is inspired by the old model – although  
renewed in 2008 – offered by Benelux, which  
unites three states, essentially in an economic  
cooperation agreement. It also takes into account, in part, the recent experience of the  
British-Irish Council, which allows forms of cooperation between states and regions through  
a flexible, asymmetrical formula. The idea

would be, in short, to propose the creation of a  
Council between the Spanish and the Catalan  
states, in order to find the maximum cooperation synergies between the two countries.

Institutional operation, also following the models mentioned, could be based on:

• a Cabinet made up of the permanent ministers of each country. The cabinet members would meet periodically and occupy  
the presidency on a rotating basis. The implementation of decisions taken should be  
approved subsequently by each executive.

• A consultative Interparliamentary Assembly, with members of both parliaments.

• Permanent Working Committees for each  
of the main areas of activity that have been  
established in the treaty, equally represented by parliamentarians from the respective parliaments.

• A permanent General Secretariat.

The Catalan-Spanish Council would be established through a treaty that would specify the  
functioning and powers and, logically, would  
comply with applicable legislation derived  
from common membership in the EU, if applicable. For example, the competencies and  
respective committees could deal with the following areas:

• Monetary and financial cooperation.  
• Industrial and trade cooperation.  
• Agriculture and fishery cooperation.  
• Customs and tax cooperation.  
• Cooperation in health, education and re-

search.  
• Cultural, sports and media cooperation.  
• Environmental cooperation, particularly in

energy and water.  
• Infrastructure cooperation.  
• Cooperation in defence and law enforce-

ment issues.  
• Cooperation on migration issues.

In a more daring, but also more comprehensive, model, we could try to follow the flexible  
model of the British-Irish Council and specifically accommodate certain regions in the

 

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Council’s Interparliamentary Consultative Assembly with representatives from each territory, always respecting the peer-to-peer, interstate character of the relationship.

3.1.2 Regional cooperation:  
the Mediterranean Arc

Although in a completely different frame from  
bilateral or multilateral relations between  
states, it is not possible to ignore precisely  
one of the most important regional cooperation spaces: the so-called Mediterranean Arc.  
As noted, economic boundaries no longer  
align strictly within states. There are currently  
networks between points that do not necessarily have a physical continuity, and there  
are urban corridors that become engines of  
economic development and technological innovation.

This arc corridor is already a de facto reality,  
from the point of view of economic cooperation. And if it has not developed all its potential, it’s precisely because of Spain’s objections to duly promoting the development and  
addressing the needs and opportunities of  
transport infrastructure, especially land transport. Moreover, this Mediterranean corridor  
has been promoted by civil society, mainly  
by the Ignasi Villalonga Institute, through the  
creation of the Mediterranean Arc Euroregion,

EURAM. It has been repeatedly requested by  
FERRMED, a business initiative established in  
Brussels in 2004, particularly with respect to  
the connection of ports, airports and rail.

There are also public structures within this  
space, such as the Pyrenees Working Community and, more particularly, the PyreneesMediterranean Euroregion. However, it seems  
that the states to which these regions belong  
are not keen to give them the support they  
would need. Very specifically, it would include  
projects such as Cerdanya Cross-Border Hospital, involving the Generalitat of Catalonia  
(Government of Catalonia) and the French  
Government, and the Pertús Police and Customs Coordination Centre, with the participation of French, Spanish and Catalan police.

This type of macro-regional approach is the  
priority right now in the European Union. In  
view of the success of this type of macro-regional development policies, a space such  
as the Mediterranean Arc, which would run  
from Eastern Andalusia, through Murcia and  
Alicante all the way to Lyon, must end up becoming a key framework for cooperation strategies between Catalonia and its neighbouring  
states. This type of co-operation, as stated  
above, not only does not require the signature  
of international treaties but allows countries to  
take part without even being part of the EU.

 

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3.2 Trade relations between Catalonia  
and Spain

cott of affected products is likely, but would  
be short-lived. In fact, it has been common  
in the past. And a progressive dilution of the  
border effect is natural in a global economy,  
which has long since taken place in practice.  
We must remember, first, that the effects of a  
hypothetical independence of Catalonia on  
trade relations with Spain are more intense in  
final or consumer products than on intermediate or capital products (and the latter account  
for two-thirds of Catalan exports to the rest of  
Spain); and secondly, that Catalan exports  
have been taking place using intermediate  
products imported from the rest of Spain and  
abroad.

Considering all these factors, the hypothetical  
loss in Catalan GDP in the short term associated with the drop in trade with Spain would  
very likely be around 1%, very unlikely to exceed 2%. In any case, it would be largely offset by the disappearance of the fiscal deficit  
(which during the 1986-2010 period, on average, accounted for 8.1% of GDP).

And even so, in the long term, the capacity of  
Catalan exporters to innovate and compete  
would be much more important, coupled with  
public policies implemented by the new state  
to facilitate productive activity, some applied  
with short-term effects and others with longer  
term effects (investment and infrastructure  
management policies based on fostering productivity, education system reforms, etc.).

Especially in the transition period, Catalan  
authorities could adopt some measures to  
prevent some of the potential effects of the  
change in situation. These could include, for  
example, cooperating with consumer product  
sectors of clearly determinable origin and end

The Catalan economy has experienced a very  
intense process of diversification in its exports. This process has been non-stop since  
Spain became a member of the European  
Economic Community, and in recent years it  
has increased in intensity due to the sharp decline in domestic demand caused by the economic crisis. This process will continue in the  
coming decades, due to the gradual disappearance of traditional factors (autarkic markets, established business relationships and  
centralized communications and transport,  
among others) which explain the ongoing vitality of domestic trade.

In this context, public debate related to the  
effects of independence on trade relations  
between Catalonia and Spain has led to the  
publication of reports and studies of widely  
differing quality. One of them, the report by  
the Spanish Foreign Ministry, is perhaps  
the best representative of those that paint a  
doom and gloom scenario, based on systematic and large-scale boycotts of Catalan  
products, sudden and dramatic disappearance of the no-border effect between Catalonia and Spain – built up over a long time  
– and large-scale EU reprisals against trade  
with Catalonia. The conclusions of this type  
of doom scenario reports are unrealistic.  
They don’t hold up when compared with international precedents and reveal technical  
errors, such as confusing export turnover  
with gross domestic product.

Trade relations between Catalonia and Spain  
could experience, at a much smaller scale, a  
setback due to a possible independence of  
Catalonia, which would in turn suddenly accelerate Catalonia’s process of foreign trade  
diversification. A selective and symbolic boy-

 

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with certain symbolic value, which would (as  
they have been historically) most affected by  
selective boycotts, to improve their expansion  
to other markets by means of trade promotion  
and other instruments.

 

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3.3 Cooperation between  
Catalan-language territories

To address this gap in support from the central government’s public institutions, a host of  
private organisations have existed for years  
to try to meet the needs of this sector. These  
include the classic Galeusca association, in  
defense of the Galician, Basque and Catalan  
languages, and professional associations  
that are not limited to administrative territories such as the Association of Catalan Writers, and supranational bodies such as the  
Xarxa Vives d’Universitats (Vives University  
Network). The Institute of Catalan Studies  
deserves special mention, for its history and  
academic significance, and for the peculiarity of its legal identity and its role as a linguistic authority.

Catalan public institutions have also attempted to address this cooperation, despite formal  
obstacles. One of these obstacles is the fact  
that the Spanish Constitution bans the federation of autonomous communities and imposes  
limitations on the relationship between regions  
(Art. 145.1), the forms of cooperation which  
should be established in the respective statutes (as contained in Articles 12 and 178 of  
the 2006 Statute of Autonomy of Catalonia,  
Article 59 of the 2006 Statute of Autonomy of  
the Valencian Community and Articles 5, 35,  
118 and 119 of the 2007 Statute of Autonomy  
of the Balearic Islands), cases which must  
receive, in addition, authorisation from the  
Spanish Parliament. Moreover, beyond the  
legal obstacles, the political execution of linguistic and cultural realities have represented  
a significant added difficulty.

The Generalitat of Catalonia, specifically or as  
a body, has promoted the creation of public  
agencies with the aim of formal cooperation  
between autonomous communities. The Ra-

The areas where Catalan language use and  
the creation and expression of Catalan culture takes root and develops – as is common  
in other languages and cultures – does not  
exactly match up to political and administrative territorial divisions. It is for this reason  
that, as is likewise the case with other language and cultural regions around the world,  
in the territories where the Catalan language  
and culture exist – and among people who  
use them, practice or study them, wherever  
they may be – traditional organisations have  
emerged in order to ensure the exchange  
and cooperation between regions and individuals, with a view to ensuring their survival, development, knowledge, promotion and  
mutual benefit.

In the European context, the remarkable cooperation treaty between Belgium and the  
Netherlands for the Dutch Language Union  
(Nederlandse Taalunie) has long been regarded by experts as a good model to follow.  
The Nordic Language Convention also stands  
out. It is a specific body of the Nordic Council  
that, although comprising different languages  
, establishes policies relevant to cultural cooperation. And in a yet more general context, the  
International Organisation of La Francophonie  
(Organisation Internationale de la Francophonie) is also well-known.

With the exception of some formal declarations, Spain has proved reluctant, in all areas, to underscore the value and recognise  
the wealth of the cultural and linguistic diversity within Spain. In practice, Spanish state  
policies have focused almost exclusively on  
promoting the Spanish language and culture  
through the creation of the Instituto Cervantes,  
which has received strong support.

 

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mon Llull Institute in one such agency, which  
aims to promote the Catalan language and  
culture outside our borders in all the territories  
that share it and that, indeed, earned the support of the government of the Balearic Islands  
since the beginning in 2002 until support was  
withdrawn in 2012. Some Valencian municipalities, on the other hand, have gradually  
shown interest in participating. The inter-state  
Ramón Llull Foundation has been established  
in Andorra, and it works in close co-operation  
with the Ramon Llull Institute on behalf of the  
study, promotion and defense of the Catalan  
language and culture.

Regardless of the above, in the framework of  
an independent Catalonia, sacrificing these  
territorial cooperation areas between institutions, organisations and individuals in the field  
of language and culture, beyond administrative borders, would make no sense. But more  
than that, the new political status should become a great opportunity to make a reality  
what so far has proved to have obvious implementation difficulties.

3.3.1 Criteria and proposals

First, we should establish clear criteria on  
which we should build cooperation in the field  
of language and culture, given that apart from  
a territorial definition, these are realities that  
transcend physical materiality of space and  
spread across administrative borders. These  
criteria could be the following:

• It would be worthwhile to clearly distinguish between political and cultural logics, each of which would have perfectly  
outlined, differentiated areas. On the one  
hand, there is the political community,  
with clear administrative boundaries, and  
on the other, the various linguistic and  
cultural communities (by their very nature,  
with poorly defined boundaries), which  
extend past the administrative space. In  
this sense, the Catalan state would have  
to address, in the first place, the linguistic  
and cultural rights of all its citizens in all

their diversity, actively involved in organisations promoting these languages and  
cultures.  
• Simultaneously, a proactive attitude should  
be adopted with respect to the protection  
and promotion of the autonomous Catalan  
language and culture, maintaining existing collaborative bodies – or proposing  
new ones – and making them available  
throughout the language and cultural region.  
• Although this issue would hinge on the  
general framework of relations between  
Catalonia and Spain, and taking into account that the underlying principle of cooperation should always be one of reciprocity, in terms of Spanish language and  
culture, it would be desirable to establish  
links, for example, with the Cervantes Institute to serve the interests of the Spanishspeaking community.

• The same would apply with other cultural  
and linguistic communities in Catalonia.  
Thus, due to proximity and tradition, the  
French-speaking community from France  
or African countries – a very large 15% of  
the Catalan population speaks French – or  
due to the interests stemming from intense  
trade relations, it might be desirable for  
Catalonia to join the International Organisation of La Francophonie.

• Any organisation in favour of cooperation  
between Catalan language and/or culture  
territories should be very scrupulous in respecting the wishes and specifications of  
each participant. Obviously, political sentiment cannot be forced, and any formula  
would have to be agreed beforehand.

• It would be essential for the various forms  
of cooperation to put the emphasis mainly  
on common interests, and particularly in  
the defense and promotion of a common  
cultural and linguistic market that would  
benefit everyone, regardless of where the  
goods being exchanged are produced.  
To take an example from another field,  
particularly favourable conditions could  
be established for exchanges in the edu-

 

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cational – especially at the university level– research, health and communication  
areas, where currently there is already a  
close-knit relationship and where it would  
be appropriate for the new political status  
not to entail such a difficulty for continuity. In this regard, it would be appropriate  
to avoid stressing identity or political issues to avoid causing the traditional reluctance.  
• Obviously, all possible projects should op-

erate within a European framework, from  
the regulatory point of view as well as from  
the point of view of the models offered.

Consequently, at least two proposals can be  
presented for the creation of new agencies  
and the reform of existing ones.

3.3.2 Proposal to create a  
Catalan Language Agreement

It would be advisable to create a public agency for cultural and linguistic cooperation between states with territories where the Catalan  
language is used in any of its names and variants.

Following the proven model of the Dutch Language Union, this Agreement – although it  
could otherwise be named Alliance, League,  
Consortium, Union or even Coalition, to use  
the term adopted by the UNESCO for cultural  
diversity promotion – should be the result of  
a treaty signed between the five states (Andorra, Spain, France, Italy and Catalonia).  
In Spain – as in the case of Belgium with its  
Union – representation may be transferred to  
what are now the autonomous communities of  
Valencia, the Balearic Islands, and Aragon. In  
France, representation could fall to the General Council of the Pyrénées-Orientales, and  
in Italy, the city of Alghero.

The Catalan Language Agreement may consist of:  
• A Government Committee, comprising  
high-level members, responsible for the

cultural affairs of respective governments

– one for each territory – which would propose the cooperation policies in terms  
of language and culture, which, to be effective, would have to be subsequently  
adopted by governments in each administrative area.

• An Inter-Parliamentary Commission that  
would study the proposals of the Council  
of Arts and Culture and, if appropriate,  
would take them to the Government Committee.

• The Philology Section of the Institute of  
Catalan Studies would continue in its role  
as Linguistic Authority, in a technical capacity. It would ensure, as it has until now,  
that experts from all Catalan-speaking territories are represented.

• A Council of Arts and Culture, with the participation of experts, creative professionals and producers, as well as public and  
non-governmental organisations for the  
defense and promotion of the language  
and culture.

• A General Secretariat.

Funding could be flexible according to the  
number of speakers in each region. The main  
objectives of the Catalan Language Agreement would be:

• Cooperation in the study, knowledge, dis-semination and proper use of the Catalan  
language in its variants.

• The promotion of Catalan literature and all  
forms of cultural creation expressed in this  
language.

• The promotion of a true and efficient Catalan language and culture market in all the  
territories involved.

This Catalan Language Agreement is a lofty  
aspiration, which is why it might make it advisable to take a phased approach to its implementation, starting with the creation of the  
Council of Arts and Culture. As it matures,  
over time, it may eventually culminate in the  
signing of the final treaty between the states  
involved.

 

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3.3.3 Consolidation of the  
Ramon Llull Institute

It would also be advisable to consolidate the  
Ramon Llull Institute as a great instrument  
for projecting the Catalan language and culture throughout the world, which is one of its  
founding principles.

So, whenever possible, it would be interesting  
to agree the participation of governments of

all the territories where the Catalan language  
and/or culture is present. That is, in addition  
to Catalonia, Andorra, the autonomous communities of Aragon, Balearic Islands and Valencia, the Pyrénées-Orientales and Alghero.  
Needless to say, this consolidation would be  
easier with a Catalan-Spanish Council or Iberian Council as proposed above, and if a treaty on the Catalan Language Agreement were  
signed, as suggested.

 

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3.4 Paths to Catalonia’s integration  
in the European Union

bership process as a third state without taking  
ad hoc
measures aimed at ensuring expedited processing or establishing specific interim  
arrangements.

Exclusion as a Member State scenario: The  
EU refuses to immediately open the membership process or granting candidate status,  
i.e., it refuses to open the formal membership  
procedure and the new state remains indefinitely outside the EU.

Two assumptions must be taken into account  
when analysing the degree of legal and practical feasibility of these four scenarios.  
• First, neither international law nor EU law

expressly provide for a situation such as  
the Catalan case would pose.  
• Secondly, the EU has traditionally adopted  
an extremely flexible and pragmatic atti-

tude when solving unexpected problems  
that have emerged in relation to the territorial territorial organisation changes of  
Member States concerning the scope application of EU law and, more generally, in  
relation to the treaty ratification process.

However, these two assumptions do not allow us to conclude that the admission of a  
new Catalan state would operate in a legal  
vacuum. EU law, and indirectly international  
law, regulate a number of material and procedural requirements and conditions that this future state must comply with in order to join the  
Union, whatever scenario ends up prevailing.  
However, as we shall see, the unprecedented  
nature of the Catalan case will increase the  
margin which the EU usually takes when selecting, interpreting and applying European  
law. In practice, whether acknowledged or  
not, the driving force behind choosing be-

Whether a future Catalan state would be inside or outside the EU is open to a variety of  
opinions which can be grouped into the four  
scenarios presented below. In all cases, it is  
necessary to emphasise two important ideas.  
First, preserving the acquired rights of citizens  
is crucial, their economic and social rights  
and especially the rights specified in the EU’s  
Charter of Fundamental Rights. And secondly,  
it is important to take into account the complexity of organising the process of leaving  
the EU for all public and private actors, whether individuals or legal entities. These are the  
four scenarios considered:

EU member scenario: As soon as the new  
Catalan state is established and the EU is notified of its constitution, the new state continues  
as part of the Union without interruption. Since  
it is a territory that is now part of the EU and  
its population has European citizenship and is  
under European law, it would not be forced to  
leave the EU and apply for re-integration from  
the outside.

Ad hoc membership scenario: When Catalonia requests admission, the EU would not  
accept its automatic continuity in the EU as a  
new state, but, given the specific circumstances of the case, it would decide to undertake a  
process of ad hoc membership, with specific  
characteristics that would enable quick integration and a transitional arrangement aimed  
at ensuring the continuity of as many legal,  
economic and political ties to the EU as pos-sible, and the continuity of all rights and obligations of citizens and companies operating  
in Catalonia.

Ordinary membership scenario: The EU  
agrees to immediately open an ordinary mem-

 

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tween these scenarios is not so much legal  
guidelines as much as political and especially  
economic interests.

3.4.1 Legal conditions and  
requirements

EU membership is open to European countries which respect and promote the values  of  
human dignity, freedom, democracy, equality,  
the rule of law and human rights, including the  
rights of minorities. Countries must also meet  
the criteria set out by the European Council’s  
Copenhagen Summit: existence of a functioning market economy and the capacity of  
coping with competitive pressure and market  
forces within the EU; capacity of accepting  
the aims of the political, economic and monetary union and institutional stability to ensure  
democracy, the rule of law, respect for human  
rights and protection of minorities.

It seems clear that a future Catalan state would  
suitably meet these admission conditions and  
requirements. Proof of this is its prolonged prior EU membership.

The major new requirements that the new Catalan state would have to deal with would result  
from the need to create some regulatory and  
coordination agencies, which have already  
been discussed, and, in general, some new  
organisational structures stipulated by European law, as well as the need for transposing  
to the new Catalan legal system any related  
EU law as required. These tasks would certainly require some effort, but the future Catalan state would have enough experience to  
deal with them without much difficulty.

For a future Catalan state to join the EU does  
not necessarily require it to be previously and  
formally recognised as a state or accepted  
internationally by another state or by specific  
international organisations, for example the  
UN or the Council of Europe. The EU could  
be the first organisation to recognise this fact.  
However, there is no doubt that the prior formal recognition by other states or international

organisations could facilitate the EU integration process.

3.4.2 Membership scenarios.  
Procedures to be followed

EU member scenario. Should Catalonia and  
the EU choose for Catalonia to remain in the  
EU, which would no doubt be in Catalonia’s  
best interest, the following procedures should  
be followed:

First, the Parliament of Catalonia should adopt  
a resolution specifying its explicit desire to  
continue in the EU. The decision should stipulate a commitment to European values and  
ideals. It should also demonstrate the new  
state’s compliance with the EU’s political, legal and economic requirements for Member  
States. And, finally, it should refer to the objective of carrying out, in the specified time period, any adjustments required to remain part  
of the EU.

The President of the Generalitat, in his capacity as ultimate representative of new state,  
would be responsible for submitting this decision expressed by the Parliament to the European institutions.

The most appropriate EU institution to respond  
to Catalonia’s request to continue being part  
of the EU would be the European Council.

If it ruled in favour of this option, the European Council, by consensus, would respond  
favourably to Catalonia’s continuity as part  
of the EU. Once this agreement is adopted  
and, therefore, once Catalonia’s permanence  
within the EU is accepted, a negotiating process would begin to adapt the primary legislation and secondary legislation to the presence of a new member within the European  
Union, and to specify the internal adaptations Catalonia should carry out to remain as  
part of the EU.

Although the changes to be carried out may  
be few and limited in scope, they would have

 

117

to be recorded via an amendment of the EU  
Treaties.

The amendments of the Treaties should be  
made preferably by way of ordinary revision  
procedure of Article 48 TEU (sections 2 to 5).

The ordinary revision procedure of the Treaties may be initiated by the government of any  
Member State, the European Parliament or the  
Commission, by submitting a draft revision of  
the Treaties to the Council which submits it to  
the European Council and notifies national  
parliaments (art. 48.2 TEU). The European  
Council, by a simple majority, after consulting the European Parliament and the Commission, decides whether to start the amendment process. If it decides to do so, it orders  
the Council to convene an Intergovernmental  
Conference (Conference of State Government  
Representatives). This Conference must approve, by mutual agreement, the amendments  
to be made to the Treaties. And finally, the  
amendments must be ratified by all Member  
States.

The procedures, which takes into account the  
desires of EU institutions, are characterised  
by their flexibility to the extent that, on the one  
hand, no overly qualified majorities are estab-lished for adopting decisions to be adopted  
by European institutions, and, on the other,  
mechanisms are put in place to address possible situations involving opposition or blocking by a member state (Article 48.5 TEU).

The amendments to be introduced would also  
be limited in scope and would be introduced  
by modifying the relevant directives and regulations in force.

As for the adjustments that Catalonia would  
have to carry out to continue being a part of  
the EU, some have to do with the agencies it  
would have to create or adapt and others involve the required legislation to develop and  
implement European law and indispensable interim arrangements. It seems clear that  
these adjustments would have a limited scope

and relevance compared to what happens  
with applicant states that have not previously  
been members of the EU.

To ensure the practical effectiveness of the  
recognition of permanence in the EU, from the  
moment the European Council recognises the  
permanence and during the process in which  
Treaties are amended and secondary legislation and national law is modified, the EU, in  
keeping with its traditional flexibility and pragmatism, could adopt measures to ensure this  
immediate applicability.

These interim measures aimed at ensuring  
the practical effectiveness of recognising the  
permanence of a future independent Catalan  
state within the EU would not be necessary if  
the procedure which was going to be applied  
in the Scottish case to ensure its permanence  
in the EU were applied in the Catalan case.  
Indeed, this formula aims to achieve concurrency between the constitution of the new  
state and the integration of this state in the  
EU and, applied to the Catalan case, would  
consist of the following: After an eventual favourable outcome for independence following  
a referendum or plebiscite election, and after  
prior negotiations between the Generalitat  
and Spain, the latter would start negotiations  
with the EU in order to design (for whenever  
the new state is formally established and it expresses its desire to continue in the EU) the  
appropriate amendments to the original treaties – which in principle should take place  
through the procedure stipulated in Article 48  
TEU – and the modifications of secondary legislation deemed necessary for the integration  
of the new state. By this time, the list of organisational and legal measures to be implement-ed by Catalonia in a given period should also  
be ready.

Ad hoc membership. If, however, Catalonia  
and the EU chose the ad hoc membership  
scenario, this would mean that the integration of Catalonia in the EU would take place  
through the procedure used for non-member  
third countries (art. 49 TEU), with the excep-

 

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tion, however, of the simplifying ad hoc interim  
measures adopted, aimed at ensuring fast  
integration. This would imply that most of the  
currently European law in effect would continue applying to Catalonia throughout the process.

In short, in this scenario the future Catalan  
state would be required to leave the EU, but  
its reintegration process would be streamlined. It should be noted that, depending on  
the speed of this ad hoc process and based  
on the content and extent of the interim arrangements, in practice, the consequences  
of this EU integration procedure for the future  
state could be objectively almost identical to  
the first scenario.

As amply demonstrated by the practice followed so far by the EU, Treaties contain many  
different conventional and regulatory instruments that would accommodate a rapid integration procedure and, especially, ad hoc  
transient regimes: protocols, cooperation  
agreements, provisional application of European Treaties to the territory of Catalonia until  
the end of the ad hoc membership procedure;  
provisional application of the new Accession  
Treaty from the moment it was signed, while  
the accession Treaty was being ratified by  
Member States; adoption of the decision of  
heads of state within the European Council,  
etc. Meanwhile, in this transitional period, Catalonia could adopt unilateral measures and legal decisions to ensure the maximum stability  
of trade relations with the EU and enjoy freedom of movement. Regardless of the above,  
even in this case, for the duration of negotiations for accession, interim measures to facilitate continuity of application, even if only  
in part, of European law could be adopted. In  
fact, the application of interim arrangements  
is common in most accession processes.

The procedure outlined in Article 49 TEU, if we  
extract the modifications that the EU could apply to a case such as Catalonia’s, would begin with a request for admission addressed  
to the Council, which would have to accept

it unanimously after consulting the European  
Commission and the European Parliament. If  
so agreed by the Council, a process of negotiating of uncertain duration would begin,  
even though, objectively, it would seem that it  
should be shorter than the process followed to  
date with other candidate countries, precisely  
because the provisions of primary legislation  
and secondary legislation require more limited changes and because fewer requirements  
are expected for Catalonia.

This process would be applied through the  
legal instrument of the Treaty or Act of Accession of Catalonia to the EU, which should  
incorporate the principles governing membership, institutional adaptations, secondary legislation technical adaptations, interim  
measures in the various areas of application  
and Law application provisions.

The procedure normally applied in this phase  
is usually as follows: the Commission directs  
the negotiations and duly informs the Parliament and the Council. The terms agreed in relation to the various negotiating chapters are  
specified in the Accession Treaty. Before it is  
signed, the European Parliament must issue  
its approval, adopted by an absolute majority  
of members and the unanimous resolution of  
the Council.

Finally, these Treaties amendments are subject to an agreement between the Member  
States and the candidate state. The Accession  
Treaty has to be ratified by all Member States  
and also by the candidate state, following the  
respective internal constitutional guidelines.  
Unlike the procedure of Article 48 TEU, the EU  
does not stipulate any response mechanism  
in the event of a possible deadlock.

Ordinary membership. The third scenario,  
ordinary membership, would mean ignoring  
the fact that Catalonia has been part of the EU  
for almost thirty years. It would therefore place  
Catalonia in the same position as official candidate states such as Iceland, Turkey, Macedonia, Montenegro and Serbia. In the case

 

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of Catalonia, this option would have a clear  
disciplinary or deterrent component, which  
would be even clearer in the fourth hypothesis, the exclusion scenario.

Exclusion scenario. Many doubts and questions could emerge in this exclusion scenario,  
which would imply the EU’s refusal to accept  
any kind of relationship with Catalonia.

So, for example, assuming Spain did not recognise the independence of Catalonia, this  
could prevent changing the scope of application of EU Treaties in Catalonia. The result  
would be continuity in the implementation of  
European law in Catalonia and to Catalans,  
even in the event that Catalonia declared its  
independence and begun to act as an independent state.

From a procedural perspective, it is very arguable that Article 50 TEU (introduced by the  
Lisbon Treaty) would be directly applicable  
in the event of deadlock in the procedure to  
admit Catalonia into the EU. Strictly speaking,  
this article applies only in the case of voluntary withdrawal of a member state from the  
EU. However, regardless of this debate, it is  
significant that this provision requires negotiations prior to the exit of a Member State, setting the framework for future relations with the  
EU and giving a margin of two years before it  
ceases to apply European law. Article 50 TEU  
underscores the great complexity – both for  
the affected area and for the EU as a whole –  
involved in having a territory (which has been  
part of the EU for a given period) leave the EU.

3.4.3 EU flexibility and  
pragmatism

When considering the possible EU scenarios,  
we cannot ignore that the EU has traditionally  
adopted a flexible and pragmatic approach  
to complex issues for which the Treaties did  
not present a clear answer. This flexibility and  
pragmatism have been an EU hallmark since  
its beginnings until now. Suffice it to recall, for  
example, that the first change of boundaries

that took place in the framework of the European Coal and Steel Community (ECSC) in  
1957, when the region of Saarland went from  
France to West Germany, without requiring  
any renegotiation of the ECSC Treaty.

Greenland is another relevant example of  
pragmatism, in this case in relation to the reform of the territorial scope for application of  
the Treaties. In 1979 its citizens had obtained  
a political autonomy regime within the Danish  
state and in 1982 they voted to leave the European Communities. After a period of negotiations, Greenland won the status of European  
Communities associate member through the  
“countries and overseas territories” formula.  
The agreement allowed Greenland to continue receiving EU funds and having free access  
to the European market for fishing products.  
The Greenland case was the result of a political process not provided for in any article of  
the Treaties.

The European Community also demonstrated the same pragmatism and flexibility with  
regard to the process of integrating unified  
Germany in the European Communities. In  
April 1990 the European Council decided  
that the integration would be effective when  
the unification of West and East Germany  
was legally established, and thus ruled out  
any application of the adhesion or revision  
clauses in the Treaties. It was a fast political  
negotiation in which the Member States ratified the conditions whereby the process of  
absorbing the new territory, its citizens and  
its businesses by a EU member state would  
take place, applying the principle of people’s  
right to self-determination provided for in the  
basic Law of the Federal Republic of Germany to justify the reunification of Eastern and  
Western Lands.

The case of Cyprus is also paradigmatic.  
In 2004 it became a member of the EU as a  
de facto divided island. Unable to reach an  
agreement between the Turkish Cypriot and  
Greek Cypriot sides, the decision was made  
to make the whole island a member of the EU,

 

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but that EU law would apply only to the Greek  
Cypriot side.

Another example that highlights the EU’s  
pragmatism when faced with complex situations is the decision taken at the EU Council  
on the opening of negotiations to conclude a  
Stabilisation and Association Agreement with  
Kosovo. In the debate between representatives of Member States in the EU Council, in  
order to avoid having all EU Member States  
ratify the agreement and, ultimately, to prevent  
states who had not yet formally recognised  
the state of Kosovo from voting on the ratification, the Council agreed by consensus that  
the future agreement would not be signed as  
a mixed agreement (EU and Member States)  
but would only be signed by the EU. That said,  
the current project affects some powers which  
are questionably exclusive only to the EU.

The EU’s flexibility and pragmatism could be  
even greater in the case of Catalonia, where,  
given its prior membership in the EU and the  
lack of express regulation affecting it, applicable laws leave an even higher degree of freedom than other cases.

3.4.4 Probabilities of application  
of the various scenarios

Both EU institutions and Member States have  
a wide margin of freedom when it comes to  
accepting or not the inclusion of a new state,  
and if accepted, when deciding which scenario and what procedure should apply.

The reasons which states and European institutions can appeal to when adopting one position or another are not explicit or stipulated  
by law. In principle, they can be of any kind  
(legal, political or economic, etc.) and the  
likelihood that the EU and Member States opt  
for one or another of the four scenarios noted  
above will depend largely on the persuasive  
force which the various arguments have for  
them – especially economic arguments – for  
admission or ongoing membership. The arguments likely to prevail are those aligned with

the EU values and objectives and those taking  
into account the economic and stability interests throughout the EU.

Along these lines it is likely that the arguments  
against the ongoing membership or fast admission with interim agreement scenarios  
will resort to arguments about the “absorption capacity” of the EU, namely the difficulties of managing a Union with the addition of  
a new state, or the fear which some European countries who are facing territorial issues  
might have that the Catalan case may trigger  
a “copycat effect”.

Claims have also been made, with debatable  
reasoning, that the acceptance into the EU  
of a future independent Catalan state, if the  
separation process occurs without agreement  
from Spain, would be a breach of the principle  
of territorial integrity stipulated in art. 4.2 TEU.  
The claim is that a future Catalan state would  
not have been a contracting party to the Treaties establishing the EU and, therefore, should  
apply for admission as if it were a third-party  
state, outside the EU.

Moreover, the arguments that can be leveraged in favour of the ongoing membership or  
fast acceptance scenario stage with an interim arrangement are arguments related to the  
values that the EU has always defended, and  
also pragmatic.

First we will consider the values that the EU  
has always defended. One of the foundational objectives of the EU has always been  
to achieve the maximum integration of states  
geographically located in Europe. It would  
be going against its own objectives and nature to exclude, even temporarily, a state such  
as Catalonia, who meets all the admission requirements and which is actually already part  
of the EU.

It is also worth remembering that to deny  
EU membership to a future Catalan state, or  
prolonging this integration process, would  
amount to excluding 7.5 million people from

 

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EU membership, people who have enjoyed  
this status for decades. In fact, the principles  
and values guiding the EU will prevent its institutions from ignoring the rights of people and  
companies, maintaining financial and commercial relations and, especially, the rights  
stipulated in the EU’s Charter of Fundamental  
Rights.

From a strictly economic standpoint, it seems  
clear that the permanence of a future Catalan  
state in the EU or its speedy acceptance with  
interim arrangements would offer more advantages to the EU and current Member States  
than a definitive expulsion or an acceptance  
by ordinary means after a long wait. The EU,  
Member States and especially investors and  
companies from these states with industrial  
and financial interests in Catalonia would be  
negatively affected by the failure to apply to  
Catalonia the Statutes and laws of the EU, the  
re-application of customs tariffs and the withdrawal of freedom of movement from people,  
goods, services and capitals. On the other  
hand, it is worth remembering that, according  
to current calculations, a future Catalan state  
would not be a “receiving” state but rather a  
“net tax contributor” to the EU budget. This  
factor is usually taken into account in acceptance negotiations.

The above considerations allow us to conclude that when it comes to deciding the acceptance of an independent Catalonia in the  
EU and the procedures to be followed, it is  
likely that, for the EU and its Member States,  
the arguments in favour of ongoing membership or at least fast acceptance with interim  
arrangements would carry more weight. If this  
proved to be so, it also seems clear that, from  
the standpoint of basic pragmatism, the arguments in favour of ongoing membership (first  
scenario) should be stronger than arguments  
for fast acceptance with interim arrangements

(second scenario), since it does not make  
sense to force a territory and citizens out of  
the EU even if they were to be quickly re-accepted.

It does not seem reasonable or credible that  
the EU and its Member States would be willing to inflict financial damage and betray their  
foundational objectives by leaving a state  
such as Catalonia out of the EU, a state which  
would meet all membership requirements  
and which is perfectly integrated to Europe.  
The dilemma then is actually not if Catalonia  
would end up being part of the EU but when  
and how it will do so. The most basic logic and  
pragmatism would seem to point to its ongo-ing membership scenario. However, in the  
event of a sanction veto, a scenario of fast integration with interim arrangements cannot be  
ruled out, which would ensure uninterrupted  
application European law in Catalonia for the  
duration of the accession process.

At the same time, it seems obvious that if  
Catalonia carries out the segregation process  
with the agreement of the Spanish state, it  
would have no difficulty in ensuring its ongoing membership in the EU or by ad hoc fast  
acceptance with interim arrangements. However, it also seems clear that if this agreement  
did not exist but Catalonia could prove irrefutably that the agreement has been attempted  
repeatedly and in good faith with Spain, and it  
has exhausted the application of the relevant  
legal channels following a scrupulously democratic process, the EU and its Member States  
would not be indifferent to this fact.

In fact, in the absence of an agreement between Catalonia and Spain, European institutions have to analyse the behaviour of both  
parties in the light of the principles of democracy, sincere cooperation, good faith and proportionality.

 

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3.5 Alternatives to non-permanence of Catalonia  
in the EU or to a prolonged accession process

sible, with decisions being taken by qualified  
majority.

As such, the EU and Switzerland, for instance,  
have a large number of bilateral agreements  
which enable the latter to enjoy the benefits of  
the single market without being an EU Member, while, at the same time, retaining a high  
degree of economic and political independence, particularly in terms of the economy,  
taxation, trade and agriculture.

3.5.2 Membership of the EFTA,  
the EEA and the Schengen Area

Another option for the independent Catalan  
State would be to apply for admission to the  
European Free Trade Association (EFTA) and  
inclusion in the numerous agreements with  
third countries that have been signed within  
this framework. The current members of the  
EFTA are Iceland, Liechtenstein, Norway and  
Switzerland. The treaty covers the areas of  
free circulation of people and services, movement of capital and protection of industrial and  
intellectual property. The EFTA is not, therefore, a customs union, but rather a free trade  
area and members have a certain measure  
of freedom to close free trade agreements of  
their own. To become a member of the EFTA,  
a unanimous agreement must be reached by  
the Member States.

Catalonia’s participation in the EFTA would  
mean having to make a smaller economic  
contribution than would be required to the  
EU, which would give the State great freedom  
in terms of negotiating economic and trade  
agreements. In view of the characteristics of  
Catalonia, there would not appear to be many  
obstacles to its membership of this organisa-

3.5.1 Bilateral agreement  
between Catalonia and the EU

This type of agreement could be established  
in two ways. Firstly, Catalonia and the EU  
could decide unilaterally but reciprocally not  
to impose duties on the circulation of goods  
manufactured and commercialized in their  
respective territories. Secondly, the two entities could sign a bilateral agreement to guarantee the free trade of products and services,  
as well as to define a common framework for  
cooperation.

On the basis of its external competences, the  
EU enters into a broad range of international  
agreements with third states that are not EU  
Members and with international organisations.  
The agreements that are signed are usually  
of the following types: trade agreements, association agreements and cooperation agree-ments. The Lisbon Treaty facilitates the process of closing bilateral EU agreements, that  
is to say agreements closed exclusively by the  
EU and not by its Member States. Moreover,  
this Treaty has modified the voting system in  
the Council to facilitate the decision-making  
process by qualified majority, replacing the  
qualified majority system established in the  
Treaty of Nice (a majority of States, weighted  
votes and population) with a double majority  
system (States and population) that does not  
require votes to be weighted but establishes  
a qualified majority of 55% of Member States  
(currently 15 States) and 65% of the European  
population.

In the case of Catalonia, it would be necessary to assess the possibility of extending the  
adoption of an agreement on trade, cooperation and association with the EU as far as pos-

 

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tion. In fact, there is a preference within the  
organisation for the inclusion of small or medium-sized States with a similar level of development and the will to open up to foreign  
trade. Catalonia already possesses these  
characteristics.

With the exception of Switzerland, the other  
three members of the EFTA (Norway, Iceland  
and Liechtenstein) are party to an association  
agreement with the EU to form the European  
Economic Area (EEA). The EEA forms part of  
the Community acquis on the internal market and some European policies such as free  
competition, a series of social regulations,  
consumer protection and a set of environmental measures. It also incorporates cooperation  
instruments in areas of research, development, tourism and civil protection.

In order to gain membership of the EEA, a  
State must first be a member of the EFTA. The  
countries involved in the EEA apply EU rules  
on the internal market and enjoy the corresponding economic freedoms without taking  
part in decision-making processes at an EU  
level.

Meanwhile, all EFTA members also form part  
of the Schengen Area, an area in which internal border controls have been eliminated  
and European Community rules are applied  
with respect to the control of external borders.  
The Schengen Area currently consists of 26  
countries (soon to be 28 with the accession  
of Romania and Bulgaria). Four EU states do  
not belong to this agreement (Ireland, United  
Kingdom, Cyprus and Croatia). Forming part  
of the Schengen Area may be in Catalonia’s  
best interests, but this is even more so in the  
interests of the other EU members and for the  
EU itself, in view of the enormous concern re-

lated to ensuring the security of external borders in order to control illegal immigration, organized crime networks, drug routes and all  
types of corrupt practices.

Even if it is not a member of the EU, Catalonia  
could still be a member of the Schengen Area,  
particularly if it were a member of the EFTA.  
However, Catalonia would first have to meet  
a series of requirements. Firstly, with respect  
to external borders, it would have to demonstrate to the other members, for example, that  
it can implement efficient control of its borders  
and the proper application of the Schengen  
regulations. Moreover, it would have to demonstrate effective management of the different databases that have been set up for the  
control and integrated management of external borders and implement the corresponding  
instruments for cooperation with the different  
European agencies related to the operation of  
the Schengen system.

3.5.3 Free trade agreements and  
customs unions

In the event of obstructions to Catalonia’s rapid  
entry into the EU under an interim regime, an  
alternative internationalization strategy would  
have to be established. In this case, Catalonia  
would recover the power to close bilateral and  
multilateral trade agreements with countries  
interested in maintaining commercial, economic and financial relations. The international framework which would have to be applied  
in order to enable this type of agreement to be  
closed is the structure regulated by the WTO  
(World Trade Organisation), which allows its  
members to reach greater commercial liberalization by establishing free trade agreements  
or customs unions.

 

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3.6 Integration with the international  
community

• The capacity to enter into relations with the  
other States

Reliably demonstrating compliance with these  
four conditions is the first phase of the recognition process. This is accompanied by negotiations, acknowledgements, an acceptance  
clause with respect to international law and  
the first applications for membership of international organisations.

In the specific case of Catalonia, before embarking on a formal process of requesting recognition, the new State must do the following:

• Be able to demonstrate that it exists or, to  
put it another way, that it meets the international criteria and standards. This involves  
clearly demonstrating that the State has a  
population, the majority of which accepts  
the new situation. It must also be demonstrated that there is a defined territory in  
which a legitimate authority exercises its  
competences effectively over the population and territory. However, in the event  
that the process is not fully agreed, some  
temporary problems with overlapping authority and territorial control may occur.

• Search for potential support for the recognition process before the declaration  
of independence, with possible supporters and advocates. In this case, a minimal degree of bilateral and multilateral  
recognition is assured a priori, which will  
also serve as a practical demonstration of  
compliance with the fourth Montevideo criterion (the capacity to enter into relations  
with the other Member States of the international community).

• Establish a clear, progressive strategy with  
well planned, realistic and workable priorities, to achieve bilateral and multilateral

The integration of the new Catalan State within  
the international community requires three elements. Firstly, it is necessary to achieve international community’s recognition of the new  
State, particularly in the case of a significant  
number of other existing States. Secondly,  
the principles, values and regulations of international law would have to be incorporated  
within the State’s own legal system. It would  
also be necessary to ratify the most important  
international treaties. Lastly, incorporation into  
international intergovernmental organisations  
(IIO) would be required.

3.6.1 Recognition of the new  
State

The recognition of one State by another is  
a discretionary and political unilateral act in  
which State X recognises State Y. Interna-tional law does not oblige States to recognise  
other States. However, despite being a free  
act, it generates legal effects. Recognition  
can be given in various ways, either explicitly, with a legal and formal act of recognition,  
or tacitly, by establishing diplomatic relations  
or voting for the accession of a certain State  
into an intergovernmental organisation. In  
all cases, recognition implies that the State  
giving recognition accepts the other as an  
equal, a State, which meets the requirements  
of statehood.

The practical implementation of the basic notion of statehood is contained in criteria or principles of the Montevideo Convention (1933),  
that establish the following requirements:

• A permanent population 
• A defined territory 
• Government, with clear control over this  
population and territory

 

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recognition gradually, with a combination  
of conventional diplomatic actions with a  
range of proposals that involve sharing benefits now and in the future. It is particularly  
important to develop a credible systemization of the added values and comparative  
advantages that the new State can contribute to the international community.

• Be fully aware that the recognition process  
is always gradual, for political and technical reasons, and its completion requires  
time. It is also important that this is communicated to the population.

• Avoid premature requests, particularly in  
the case of multilateral recognition, and  
take the potential effects of group-oriented  
voting on a case-by-case basis.

3.6.2 Incorporation of  
international law and treaties  
within the State’s domestic law

The first measure that a potential independent  
Catalan State would have to adopt would be  
establishing a formal clause of acceptance  
of international law in the Interim Constitution Law. The clause would have to declare  
that the general principles and regulations of  
international law, particularly with respect to  
fundamental rights, are considered to be an  
integral part of Catalan Law.

This acceptance of international law could not  
simply be a declaration, however, but rather it  
would have to include the will to respect it.

It is particularly important to note that the ratification of international treaties is a fundamental instrument for ensuring the integration of  
the new State into the international community.  
There will be cases in which the ratification of  
treaties will take place almost automatically,  
because the new Catalan State will be considered the successor to the Spanish State.  
However, in view of the fact that no hard and  
fast regulations are established, the new State  
will have to conduct a thorough case-by-case  
analysis of the treaties that it intends to ratify,

before deciding whether it is appropriate to  
request succession or whether, in contrast, it  
would be better to open a ratification process.

3.6.3 Membership of  
international intergovernmental  
organisations

Despite being a relatively recent phenomenon on the international relations scene, international intergovernmental organisations  
(IIO) have developed greatly over the last two  
centuries. Nowadays, there are thousands of  
these organisations in all spheres of international life. They have become so important  
that 250 conventional IIOs play a key role as  
regulatory bodies with respect to the conduct  
and relations of States. They do far more that  
simply execute agreements established by  
their Member States. They make decisions  
that affect each and every corner of the planet and, as a result, the life of its inhabitants.  
This is because they deal with issues linked to  
internal and domestic sovereignty, and competences that until very recently were considered by many States to be the reserve of national governments.

In the case of Catalonia, it seems clear that  
membership of IIOs is an indispensable step  
on the way to recognition and for effective integration in the international community.

In conceptual terms, there are three ways to  
become a member of IIOs: through a formal  
membership process, with a simple unilateral  
act or through succession, based on an express provision in the organisation’s regula-tory treaty.

In practice, however, the basic and most commonly used approach is the formal process,  
as the number of cases of unilateral declaration has decreased dramatically and there  
has only been one significant case of succession by express provision (Permanent Court of  
Arbitration). Therefore, the standard method  
is the formal membership procedure which, in  
turn, is a highly diverse field.

 

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When deciding which IIOs the new State  
should be incorporated into, two key elements  
should be taken into account: the practical  
and symbolic handover of their functions and  
the degree of difficulty of the procedures required to formalize membership.

From this perspective, despite the diverse  
nature of the processes, a distinction can be  
made between two large categories of formal  
membership processes to join an IIO:

• Organisations with restrictive and complex  
admissions processes.

• Organisations with relatively simple and  
open admissions processes.

In the former case, the restrictions are the result of the decision-making systems in which  
unanimity is required, enabling the power of  
veto, or, to a lesser extent, qualified majority  
systems that enable blocking minorities to be  
established. In such cases, a thorough analysis is recommended by requesting admission.  
The latter case involves organisations that  
have decision-making processes with open  
procedures, although, the procedure can be  
administratively long in some cases.

It should also be noted that, as well as the formal procedure, some IIOs have particular customs and process, such as the power to adapt  
the standard procedures to specific cases. For  
instance, this is the case of the institutions derived from the Bretton Woods Agreement (International Monetary Fund, World Bank Group).

In view of the difficulty in establishing general  
rules, it has been decided to classify the IIOs  
into broad, relatively discretionary categories  
and conduct a partial analysis by groups and  
cases.

a) Council of Europe

As an institution that even pre-dates the European Communities, the Council of Europe is  
considered to be a primary institution of the  
greatest importance, due to its symbolism, its  
competence and functions, and its membership procedure. While it is advisable to aim for

the status of fully-fledged State from the very  
first phase of international recognition, it is  
also a good idea to consider applying for one  
of the three cases of States with intermediate  
status, as a special guest.

It should be highlighted that there is no significant technical difficulty, or in the sphere of  
human rights standards. However, despite the  
lack of the possibility of veto, the process be  
shorter or longer depending on the political  
will of the members. For instance, the case of  
Montenegro was completed in under a year.  
This is why it may be useful to hold the status  
of special guest during the negotiation process.

In addition, it is worth noting that a recent report by the British Government considers that,  
in terms of the European Convention on Human Rights, succession could be almost automatic. In specific, with respect to this point,  
Crawford and Boyle state that, based on the  
precedents of Montenegro and Czechoslovakia and rulings by the European Court of Human Rights that have already been enacted,  
the application of the Convention can be considered as uninterrupted. Naturally, the same  
could be said for the case of Catalonia.

b) United Nations and its System

Membership of the UN and, as a result, regular presence in its main bodies has come to  
symbolize the full culmination of integration  
in the international community, even though  
the UN does not formally recognise States.  
Being a member of the UN does not only involve forming part of its main bodies, but also  
the possibility of accessing many of its specialized bodies by means of a unilateral act,  
and, finally, many of its particular mechanisms  
(funds, programmes, specialized or regional  
committees, research and training institutes,  
and subsidiary agencies, among others).  
However, in some cases, it is not necessary to  
be a member of the UN to become a member  
of one of its specialized agencies.

 

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To obtain membership of the UN, it is necessary to follow a precise and well-established  
procedure:

• The candidate country sends formal notification to the General Secretary of the UN  
accompanied by a formal instrument of  
acceptance of the obligations established  
in the UN Charter.

• The General Secretary informs the Security Council.

• If the Council does not raise any objections, the chairman processes the issue to  
the Admissions Committee for new members, which analyses the application and  
presents its conclusions to the Council.

• The Council has to decide whether or not  
it recommends the admission of the candidate or whether the application should be  
adjourned. As this is a substantive issue,  
admission requires at least nine votes in  
favour and no vote against from any of the  
five permanent members of the Council.

• If the Council recommends admission, the  
case is then passed to the General Assembly for consideration. If at least two thirds  
of the members vote in favour, the General  
Secretary notifies the applicant country of  
the decision and its entry takes immediate  
effect.

• In the event that the Council does not recommend entry or adjourns the decision,  
the General Assembly can analyse the  
case thoroughly and decide whether to  
resubmit the application to the Security  
Council, with full minutes of the discussion,  
to re-examine the case and formulate a  
recommendation or report.

There are five conditions that must be met as  
a necessary requirement:

• Being a State.

• Being peace-loving.

• Accepting the obligations of the Charter.

• Being in a position to fulfil the aforementioned conditions.

• Having the explicit and reliable will to do so.

Despite perhaps being evident, the second,  
third and fourth conditions included on the

membership application must be made explicit by means of solemn and legally-binding  
declarations.

In the case of Catalonia, the main challenge  
is not a question of meeting the five prerequisites mentioned, but rather to achieve a favourable vote, with at least nine votes in favour  
and no veto from the Security Council, in the  
first instance, followed by at least two thirds in  
favour from the General Assembly.

As a final recommendation, it should be em-phasized that it is not advisable to begin the  
application for membership of the UN prematurely or rapidly, despite its symbolic status. It  
should at least be ensure that there is a significant number of recognitions, sufficient knowledge of the reasons and role of the new State  
in the international community and a scenario  
of bilateral relations with Spain that are reasonably well established and based on cooperation.

With respect to the specialized agencies of  
the United Nations System, it is important to  
understand that they are a product of the long  
history of the organisation, created in 1945,  
and, in particular, the plurality of functions that  
the organisation can accomplish in terms of  
improving international governance and global cooperation.

International Monetary Fund (IMF). This institution is dedicated to promoting monetary cooperation at a global scale, ensuring financial  
stability, facilitating international trade and fostering employment and economic growth and  
the elimination of poverty around the world.

Its importance an symbolism is extremely  
great. In terms of belong to this institution, two  
aspects should be highlighted: The first is that  
it is a relatively open organisation. This explains the fact that Kosovo is currently a member, in contract to the majority of organisations  
of the UN System. Secondly being a member  
of the IMF is a prerequisite for membership of  
the World Bank.

 

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The formal membership application process  
can be summarized as follows:

• The candidate send a formal membership  
application, which is received by the Executive Board (EB).

• The EB examines the application thoroughly.

• The EB presents a report to the Board of  
Governors with the recommendations it  
proposes (a draft version of the Membership Resolution). The report contains:

• the membership fee that must be paid 
• the method of payment 
• possible terms and conditions related to  
entry as a member.

• The Board of Governors approves the  
aforementioned resolution, as applicable,  
marking the start of the period within which  
the membership must be formalized, with  
domestic and international legal procedures that enable the agreements to be  
signed and the corresponding obligations  
to be met.

The main obligation of the new Member is  
payment of the membership fee decided by  
the Board which, in the case of a country such  
as Catalonia, may be high. Two precedents  
worth noting are the case of Montenegro  
(agreed secession) and Kosovo (unilateral secession) with respect to Serbia. In both cases,  
the IMF consider Serbia to be the continuing  
State, for all legal intents and purposes, so its  
retained its Member status, fees and assets  
and liabilities. Montenegro and Kosovo therefore entered as new members. It seems likely  
that the case of Catalonia would progress in a  
similar way.

The characteristics of the IMF make it probably the primary access route to the UN System for a new State that is striving to achieve  
its integration in the international community.

World Bank Group - A distinction must be  
made between the World Bank (WB) and the  
World Bank Group (WBG). The former only  
has two members: the International Bank for  
Reconstruction and Development (IBRD) and

the International Development Association  
(IDA). Meanwhile, the latter consists of five organisations.

The entry system to the Group is conditional  
on two prerequisites. Firstly, applicants must  
be a member of the IMF (Constitutional agreement of the WB). Secondly, entry into the IBRD  
is required, which affects the membership of  
the other four institutions of the Group.

The procedure can be summarized as follows:

• The IMF Member State that is a candidate for joining the WBG submits an application, which is prepared jointly with the  
Bank, with all of the information considered relevant.

• The Board of Executive Directors of the  
IBRD (formed by twenty five people selected based on representation criteria)  
announces the application to the Board of  
Governors, which includes representative  
of all of the Member States. When the submission is positive, the Board of Executive  
Directors attaches all of the documentation it considers necessary to its report, including a proposal of the number of capital shares to which the new member would  
have to subscribe (a quantity that will have  
been decided based on prior consultations), as well as any conditions that it considers appropriate.

• The Board of Governors makes the decision by majority vote (the votes are determined by each country’s capital subscriptions). Therefore, the possibility of veto or  
small blocking minorities is low, unless it  
comes precisely from the countries with  
greater weight in the voting due to their  
number of shares, such as the USA.

• Once a country is a Member of the IBRD,  
admission to the other four institutions simply requires an administrative procedure,  
which normally involves signing the Articles of Agreement, submitting a formal  
instrument of admission to the Corporate  
Secretary of the WBG and receiving approval.

 

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FAO. This is the UN’s Food and Agriculture  
Organisation. Admission to this organisation  
is regulated by Article II.2 of its Constitutional  
Treaty. Applicants must submit their application accompanied by a formal instrument of  
acceptance of the obligations established in  
the Constitutional Treaty and the regulations in  
place in the organisation at the time of submission. The decision is made by the organisation’s General Conference and requires a  
two-thirds majority of the votes cast, on the  
condition that the majority of the Member  
States are present.

Admission can be requested in the first phase,  
within the international recognition process.

ILO. This is the International Labour Organisation. The admission procedure is regulated  
by Articles 1.3 and 1.4 of the organisation’s  
Constitutional Treaties or Constitution. Any UN  
Member State can apply for membership of  
the organisation by submitting their application to the Director General of the ILO, accompanied by a declaration of the will to accept  
the Constitutional Treaties and the obligations  
established therein. However, Paragraph 1.4  
establishes another possible mechanism:  
“The General Conference of the International  
Labour Organisation may also admit Members to the Organisation by a vote concurred  
in by two-thirds of the delegates attending the  
session, including two-thirds of the Government delegates present and voting”.

In both cases, the application is presented at  
the annual meeting of the General Conference  
and requires a two-thirds majority of the votes  
cast, on the condition that at least two-thirds of  
the government delegates are present. The admission takes effect once the Director General  
receives the formal instruments of acceptance.

It is advisable to request admission in the first  
phase, within the international recognition process.

WHO. This is the World Health Organisation.  
Admission is regulated by Articles 1, 6 and 79

of the organisation’s Constitutional Treaties.  
Any UN Member State can apply for membership of the organisation by submitting their application to the UN Secretary General, accompanied by a declaration of the will to accept  
the Constitutional Treaties and the obligations  
established therein. Admission can also be requested directly and may be granted if a simple majority is obtained at the annual conference of the World Health Assembly.

It is advisable to request admission in the first  
phase, within the international recognition process.

ITU. The International Telecommunication Union is a mixed-membership agency, formed  
by States and academic and private organisations. The admission procedure is regulated by Articles 2 and 53 of the organisation’s  
Constitutional Treaties. Any UN Member State  
can apply for membership of the organisation  
by submitting their a single standardized formal instrument of acceptance of the Constitution and ITU Convention before the Secretary General. The Secretary General informs  
the other States and sends a certified copy.  
However, there is a second method, which  
involved submitting the admission request  
directly. The decision is taken at the Plenipotentiary Conference, which is held every four  
years, an requires a two-thirds majority. When  
the application is submitted between two sessions, the Secretary General consults with all  
of the Member States, which must respond  
within a period of four months. If no response  
is received in this time, they are considered to  
have abstained. Once the decision has been  
taken, the formal admission instrument must  
be deposited, taking immediate effect.

Despite the qualified majority, it is advisable to  
embark on the admission process as a part of  
the international recognition process.

UNESCO. This is the UN’s organisation for  
education, science and culture. The admission process is regulated by Article II of the  
constitutional treaty of the organisation and

 

130

by Regulations 50 and 51 of the Executive  
Council. Any UN Member State can apply  
for membership by notifying the Foreign and  
Commonwealth Office, as the depositary of  
the treaty. This notification must include a formal declaration of acceptance of the constitutional treaties.

A direct application is also possible: “Subject  
to the conditions of the Agreement between  
this Organisation and the United Nations Organisation, approved pursuant to Article X of  
this Constitution, States not members of the  
United Nations Organisation may be admitted to membership of the Organisation, upon  
recommendation of the Executive Board, by a  
two-thirds majority vote of the General Conference” (Article II.2)

In both cases, the approval procedure is twofold: firstly, a simple majority of the Executive  
Council is required; secondly, a two-thirds majority of the General Conference is needed.

Despite the qualified majority, it is advisable to embark on the admission process in the first phase,  
within the international recognition process.

WTO. This is the UN institution dedicated to  
promoting responsible, sustainable tourism  
that is accessible to all. In practice, it is the  
leading international organisation in the field  
of tourism.

In accordance with Article 3.5 of the Statutes,  
the admission mechanism require the candidacy to be presented and approved by the  
General Assembly by a two-thirds majority of  
the effective Members present and voting (on  
the condition that this majority includes the  
majority of the effective members of the organisation).

In view of the importance of tourism in Catalonia, it is advisable to request admission to this  
organisation in the first phase of the international recognition process.

WIPO. The World Intellectual Property Organisation (WIPO) is a long-established agency

that became the specialized agency of the  
UN in 1974.

In accordance with Articles 5 and 14 of the  
organisation’s Convention, participation and  
admission is open, through a simple formal  
ratification process or by means of a admission instrument deposited before the organisation’s Director General, on the condition that  
the applicant meets one of the following three  
criteria:

• Being a Member State of the Paris Union  
or Berne Union.

• Being a Member of the UN, one of its specialized agencies, the International Atomic  
Energy Agency or part of the Statute of the  
International Court of Justice.

• Being a State that has been invited to join  
the WIPO by its General Assembly.

In view of the fact that, in order to become a  
Member of the Paris and Berne Unions, applicants only have to make formal notification  
of admission, it seems clear that becoming a  
member of the WIPO simply depends on the will  
to do so and formally requesting to do so. Therefore, it forms part of the list of organisations to  
which Catalonia should apply for admission in  
the first phase of international recognition.

c) NATO and other international security  
agencies (OSCE, EU security structures, transatlantic relations and rela-tions with the United States, etc.)

Turning to the issue of international security,  
it should be noted that Catalonia, as a part of  
Spain, has been part of the gradual process of  
incorporation of the central Administration into  
the international community that has taken  
place since the Spanish transition to democracy, with significant implications in terms of  
security. From the time of the Franco dictatorship, Spain inherited relatively incomplete  
diplomatic relations (such as in the case of  
Mexico and Israel), an asymmetrical relationship in terms of security and defence with the  
United States of America (USA) and the lack  
of incorporation in NATO.

 

131

During the Spanish transition, Spain completed its admission into the Council of Europe  
(1977), and later into NATO (1982) and the EU  
(1986). From the 1990s onward, Spain’s full  
incorporation into the Atlantic and European  
security structures was validated, as well as  
its admission into all of the internationally significant agencies and networks. Spain also  
subscribed to and ratified all of the important  
treaties in terms of domestic and international  
security.

Therefore, in the event of Catalonia becoming  
an independent State, it will have to resolve  
many issues related to the presence of security agencies, treaties on the issue and, above  
all, coordination in terms of international security, all within the framework of full integration  
in the international community. To date, all of  
these issues have been the responsibility of  
the central Administration.

The decision that must be taken primarily affect four areas of foreign security: transatlantic  
relations and relations with the USA; membership of the OSCE; membership of NATO; and  
membership of the EU security structures and  
agencies.

Transatlantic relations. Within the restructuring process in recent years, transatlantic  
dialogue has been conducted bilaterally and  
multilaterally, in this case, through NATO and  
other similar organisations, some of which are  
private. In addition, Spain’s bilateral relation  
with the USA has been a key element of Spanish security policy since 1953.

With respect to the bilateral treaty in terms  
of defence, it should be noted that Catalonia  
currently has no operative facilities included  
in the treaty, in contrast to the situation years  
ago with the Loran-C station in L’Estartit. As  
such, there are no significant problems to  
overcome. However, given the importance of  
relations with the United States, even in terms  
of the recognition process, Catalonia’s desire  
to uphold privileged relations should be made  
clear from the very beginning.

OSCE. With respect to the Organisation for  
Security and Cooperation in Europe (OSCE),  
the successor of the Conference for Security  
and Cooperation in Europe created in 1973  
and in force since the formalization of the Helsinki Accords (1975), this organisation is now  
made up of fifty seven members, as a result of  
the transformation of the European States in  
the post-Cold War period. The Member States  
include all of the European States (including  
all of the EU Members), the Russian Federation and the Asian republics that were formerly  
members of the USSR, as well as Canada and  
the USA.

The organisation undertakes a very active line  
of work in preventive diplomacy, conflict management, human rights protection and the  
protection of minors. In addition, through vari-ous documents and declarations, the organisation symbolized the transformation of the  
pan-European region into an area of peace  
and cooperation, after overcoming the hostilities of the Cold War.

However, the OSCE still implements the mechanism of unanimous decision-making, which  
enables any of the Member States to veto new  
admissions.

The immediate actions that must be taken are  
demonstrating Catalonia’s interest in becoming a member and subscribing to and applying the principles and accords of all of the  
documents and agreements in the OSCE’s  
history.

NATO. NATO is the result of the progressive  
organisational formalization of the Washington  
Treaty (1949). Technically, the organisation is  
based on a collective defence treaty that commits all of its members, although without the  
existence of an automatic clause (Article 5  
of the Treaty). It is a regional security organisation, in accordance with the provisions of  
Chapter VIII of the United Nations Charter.

Without doubt, the issue of NATO membership  
is important and, as such, before considering

 

132

certain actions, it is worth analysing how admission is achieved:

In terms of the admission mechanisms, Article 10 of the Treaty clearly states that, with the  
exception of Canada and the USA (founding  
members), new members must be European  
and, in addition, must have been unanimously  
accepted by all of the States. No stipulations  
are included for succession mechanisms. Admission would therefore need to be negotiated.

However, the possibility of association is stipulated, through the Partnership for Peace, to  
which almost all European countries belong,  
to varying degrees.

The immediate actions that must be taken are  
requesting and negotiating participation in the  
Partnership for Peace and taking a decision  
of the potential admission in a subsequent  
phase, once the important options in terms of  
defence and security are decided within the  
framework of the constitutional process.

EU security structures. Lastly, in terms of the  
European Union’s security structures, it should  
be noted that EU membership implicitly involves participation in certain highly important  
instruments in the field of international security, most of which are intergovernmental, such  
as the Common Security and Defence Policy  
(CSDP), part of the Common Foreign and Security Policy. The CSDP has acquired great  
significance since the Lisbon Treaty came into  
force, as it reinforces the policy’s capacities  
and its real policy instruments.

In specific, it enables the establishment of  
structured and permanent cooperation between Member States that are more disposed  
and better equipped in terms of arms and  
defensive capacities. The common defence  
clause contained in Article 42 of the Union  
Treaty is particularly significant. It states that,  
in the event that a Member State is the object  
of armed aggression within its territory, the  
rest of the member States must provide support and assistance with all of the means in

its power. This should also be taken into consideration when designing Catalonia’s international security, in view of its firm vocation to  
become an EU Member.

The immediate actions that need to be taken  
include using the policy as a starting point, as  
generally stated above, for the design of Catalonia’s international security, and in terms of  
the previsions for treaties, strategies and the  
various EU instruments and agencies, as well  
as notifying the EU of this decision.

d) Other international institutions

International Criminal Court. Created in  
1998 based on the Rome Statute and in force  
since 2002, this is a permanent international  
criminal justice court ruling on cases of war  
crimes, genocide and crimes against humanity (and, in the future, crimes of aggression  
as well). Although there are only 122 Member  
States, with significant absences, the Court  
has become a symbol of the fight against impunity and injustice.

The admission process is simple. It is open  
to any State that submits the formal admission instrument to the Secretary General of  
the United Nations, the depository organisation of the Rome Statute. Once the Statute has  
been signed, the applicant holds the status of  
an observer State of the Assembly of States  
Parties and, once notification of ratification is  
received, it becomes a full-fledged Member.

It appears to be clear that Catalonia would  
have to request admission to this institution  
without delay, in the first phase of the international recognition process.

Permanent Court of Arbitration. This is an  
IIO with a long history. It was created in 1899  
as a result of the Hague Peace Conference. It  
specializes in the provision of arbitration services and dispute resolution between States,  
State institutions, IIOs and, in some cases, private organisations. Despite the obvious links  
in terms of principles and functions, the Court  
does not form part of the UN System.

 

133

Regulated by two conventions (dated 1899  
and 1907), it is formed by 115 countries and  
has undergone a significant resurgence in recent years, probably due to its links to international commercial law and the law of the sea.

There is an obvious case for admission for  
a new State such as Catalonia, which has a  
long history of promoting peace. However,  
the requirement of being a Member of the UN  
means that this admission process will have to  
be wait until the second or third phase.

World Trade Organisation. The WHO was  
created in 1995 and is the successor of the  
General Agreement on Tariffs and Trade  
(GATT) which supervises the trade agreements that regulate and define the commercial relations between Member States. Its  
objective in the medium to long term is to  
reduce or completely eliminate international  
barriers to trade. It does not form part of the  
UN System and, as such, neither is it a member of the international financial institutions,  
although it does enable forms of collaboration and cooperation. In recent years, it has  
experienced a significant crisis due to being  
blocked at the Doha round. This has led to  
the emergence of many multilateral and, to  
a greater extent, bilateral trade agreements  
outside of the WTO framework. However, the  
Bali Conference (November 2013) enabled  
the adoption of certain agreements and the  
improvement of a number of the organisation’s operating regulations.

The Organisation is currently formed by 159  
fully-fledged members and 25 observers, all  
of which are in the admission process, with  
the exception of the Vatican. The procedure  
requires a two-thirds majority of the Ministerial  
Conference. In principle, any customs territory or State with full autonomy with respect to  
trade policies can join the WTO. In other words,  
they can sign up to the Founding Agreement  
and the various multilateral trade agreements.  
There is also a degree of technical complexity.  
Acceptance of the agreements established in  
Annex 4 must be declared separately and is

governed by the particular regulations of each  
agreement. In practice, this means reliably  
verifying that the candidate’s legal framework  
on trade is able to respect the principles and  
agreements of the WTO.

In any case, a country that has been an EU  
Member State as part of another State and  
is attempting to join the Organisation rapidly  
should not come across any significant obstacles.

The formal admission process can be summarized as follows:

• The candidate drafts a report describing  
all aspects of its trade policies related to  
the WTO agreements. This report or memorandum is examined by a WTO working  
committee, open to all of its Members.

• From the moment that the main substantive issues of principles and policies have  
been examined, bilateral conversations  
begin between the candidates and each  
of the Member States. The process ends  
multilaterally in view of the fact that, despite the bilateral negotiation, the principle  
of non-discrimination requires the candidate’s commitments to be applied equally  
with respect to all countries.

• Once the task of the working committee  
is completed (analysis of the candidate’s  
trade structure and bilateral negotiations),  
a report is issued, along with a draft admission protocol and a scheduled list of  
commitments that the new Member would  
have to assume if accepted.

• These three documents are presented to  
the General Council or the Ministerial Conference, which must approve them by a  
two-thirds majority, without the possibility  
of veto. This involves a significant majority,  
but any principal political difficulties that  
may arise should have already come to  
light in the bilateral phase. In the event of  
the application being approved, after signing the protocol and the possible ratification if required under the domestic law, the  
applicant acquires Member status.

 

134

There are two final considerations in view of  
the importance that belonging to the WTO  
would have for Catalonia as an independent  
State.

Firstly, there would need to be a thorough  
analysis of the pros and cons of holding observer status, which, as mentioned above is  
a prior condition in almost all of the cases of  
full admission. This must be compatible with  
the negotiations required, which would have  
to begin within a maximum time period of five  
years from the start of the applicant’s observer  
status.

Secondly, it should be remembered that EU  
Member States have dual status in the WTO  
as individual States and as part of the EU. This  
fact often involves stating opinions and voting  
as a block, as the EU has exclusive competence in terms of trade policy.

This factor must be taken into account as, in  
practice, it informally ties admission to the  
WTO with Catalonia’s integration channels into  
the EU. This means that Catalonia’s admission  
to the WTO would be immediate when Catalonia becomes an EU Member, in view significant scope of the competences attributed to  
the EU in terms of trade policy.

Within the framework of Catalonia’s relations  
with the WTO, based on the commitments negotiated. It is also important to bear in mind the  
effects of an eventual free trade agreement or  
customs agreement that, in an interim phase,  
could be closed between Catalonia and the  
EU. This agreement could be integrated within  
the WTO as a preferential EU trade agreement  
or a customs union, constituting an exception  
to the clause of the most favoured nation, in  
accordance with Article XXIV of GATT and Article V of GATS.

In summary, it is necessary to prepare and  
embark on an admission process from the first  
phase and decide whether or not to apply for  
observer member status. In any case, the process is always long for technical reasons, as

highlighted by the public list of negotiations in  
progress.

Organisation for Economic Cooperation  
and Development. Founded in 1961, the  
OECD originated from the European pact  
mechanisms advocated by the USA within  
the framework of the Marshall Plan of post-war  
aid for regional reconstruction. It is currently  
formed by 34 countries. Its primary purpose  
is to promote economic progress and world  
trade, as well as democracy and the market  
economy. It has many subsidiary bodies in  
the form of committees, working groups and  
expert groups, etc. Candidate countries can  
participate in some of these subsidiary bodies.

Although the organisation is formally a simple forum or platform, the fact that decisions  
are taken unanimously gives it greater significance, particular with respect to the OECD  
Council, its highest decision-making body.

The admission process is potentially slow and  
long as it is based on a series of examinations  
to evaluate the candidate’s suitability and real  
capacity to meet the organisation’s standards.  
There are two channels for negotiating admission:

• The negotiations in progress in accordance with the 2007 decision (Slovenia, Estonia, the Russian Federation, Israel and  
Chile, which have deposited their admission instrument).

• The enhanced engagement mechanism  
designed or emerging economies and  
countries.

The standard procedure can be summarized  
as follows:

• Drafting an admission route map.

• Revision of the results, without a preset  
timescale, with the results being communicated to the Council.

• The Council’s unanimous decision, with  
the corresponding power of veto, which  
enables the candidate to submit the admission instrument to the Treaty depository  
in France.

 

135

The complexity and, above all, the need for  
unanimity make it advisable to wait until a later  
stage of the integration process in the international community to embark on the admission  
process.

International Organisation for Migration. The  
IOM was founded in 1951 and currently has  
155 Member States and 11 observers. Its  
function is to advise governments and migrants on all aspects of migration. It is not part  
of the UN System. It has a flexible structure,  
with offices and projects in over a hundred  
countries. The admission process to the organisation is simple.

Its Constitutional Treaty establishes the following conditions and procedures:

• Demonstration of the interest and clear  
commitment of the candidate with respect  
to the principle of free movement of people.

• Demonstration of the will and ability to  
make a financial contribution to the organisation, which may not be less that the administrative expenses. This figure will be  
agreed between the candidate and the  
IOM Council.

• Acceptance of the candidate by a twothirds majority of the Council.

• Formal acceptance of the organisation’s  
Constitutional Treaty by the new Member.

Therefore, for its own interests and the interests of the system, this appears to be an organisation to which Catalonia should attempt  
to join at the start of the recognition process.

Interpol. Established in 1923, the International Criminal Police organisation currently has  
190 members and it is primarily dedicated to  
protecting public safety and fighting terrorism,  
organized crime, trafficking of humans, arms  
and drugs, child pornography, money laundering, white-collar crime and corruption. It  
has two main bodies, the General Assembly  
and the Executive Committee, as well as the  
General Secretariat.

Admission is granted on the condition of a favourable vote with a two thirds majority of the  
General Assembly.

In view of the current circumstances in terms  
of the fight against certain forms of international terrorism, it seems evident that it would  
be in nobody’s interest for Catalonia to remain  
outside of this organisation. Therefore, admission should be requested in the first phase of  
integration in the international community.

 

Further information:

www.catalangovernment.eu  
www.gencat.cat/presidencia/catn

 

www.catalangovernment.eu

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