The High Court has reaffirmed the unconstitutionality of the principle of national effectiveness of the Law on the Guarantee of Market Unity

Written on 31 Oct 2017

The Constitutional Court has declared articles 6 and 21.2.c) of the Law on the Guarantee of Market Unity unconstitutional in two Judgments both dated 5 October 2017. These precepts were established in the “principle of national effectiveness”, which was declared unconstitutional in a Judgment of the Constitutional Court dated 22 June 2017.

The Constitutional Court, in its Judgment 79/2017 dated 22 June 2017, declared unconstitutional, among others, articles 19 and 20 of Law 20/2013 of the Law on the Guarantee of Market Unity (“Market Unity Law”) dated 9 December. Both articles regulated the principle of national effectiveness, according to which «the relevant authority must assume the full validity of that established by the authority of origin both in terms of requirements for access to the activity as well as the circulation of goods. This recognition cannot be conditioned on the existence of any equivalence». In the words of the Constitutional Court, this principle involves forcing an autonomous community to accept a plurality of foreign policies within its territory, which clashes with the ability to develop its own public policies within the areas of its competence. It also involves the constriction of its autonomy; it allows the application within the territory of the autonomous community of provisions adopted by a representative body in which the citizens, where it is eventually applied, are not represented.

The Generalitat of Catalonia and the Junta de Andalucía filed separate appeals for unconstitutionality against several precepts of the Market Unity Law, considering that it went beyond the state powers contained in art. 149.1 of the Spanish Constitution (“SC”), thereby invading those of the Autonomous Communities of Andalusia and Catalonia, respectively.

Based on the arguments put forward in Judgment 79/2017, the Constitutional Court now declares articles 6 and 21.2.c). unconstitutional in Judgments 110/2017 and 111/2017 dated 5 October. Both precepts involve manifestations of the principle of national effectiveness, the first extending the effectiveness of the actions of the competent authorities throughout the national territory, and the second stating that “the authorities of the place where the manufacturing site is located will be responsible for controlling compliance with the production regulations and requirements of the product for its use and consumption”. In the terms of the Constitutional Court, the foregoing involves granting the authority of origin control over compliance with the regulations, regardless of the lack of common state or European regulations or even a different level of protection that could be granted by the relevant autonomous community.

With these two judgments, the principle of national effectiveness, the cornerstone of Market Unity Law, is finally eliminated from the legal system.