There will be a battle in the courts. The Ministry of Health decided this Saturday to put all the meat on the grill and do not leave controversial restrictions on hospitality and nightlife as mere recommendations approved on Wednesday by the Interterritorial Council of the National Health System (CISNS) with the rejection or abstention of the most populated autonomous communities, which are home to about two-thirds of the inhabitants of Spain. The limitations and prohibitions for this summer will be – now, officially and black on white – of “forced” for the communities.
The department headed by Carolina Darias, after 48 hours of hesitation, decided to pick up the glove of the ‘rebel’ autonomies and publish today in the Official State Gazette (BOE) -in the form of a ‘resolution’ from the Secretary of State for Health- the controversial order. A protocol that over the next few weeks, among other things, prohibits terraces throughout Spain from accepting customers after midnight; that forces the hoteliers to clear the tables at 1 a.m.; what forces nightlife and discos to draw the blind at 3 in the morning; or that requires employers to close the interior of its premises when the cumulative incidence is above 150 cases per 100,000 inhabitants.
In the end, Health expressed in the BOE this Saturday its thesis that the CISNS agreements – no matter how much they are not unanimous and no matter how much there is not even a voting or assessment system of the weight of the votes of the different communities or autonomous cities – must be complied with and “oblige” all territories with “independence of their vote”, as highlighted in the text published earlier today.
The five pages of resolution in the bulletin signed by Silvia Calzón, the Secretary of State for Health and number 2 of Carolina Darias, were the formality that the ‘rebel’ communities waited to unleash the judicial battle against the protocol with which Health aims to homogenize anticovid measures this summer, at least until Spain reaches 70% of vaccinated (33 million people) in mid-August.
Madrid, Galicia, Andalusia, Murcia, Catalonia, Castilla y León, Euskadi and Melilla were the territories that abstained or voted against the agreement. Most of them has already announced that it will not abide by the protocol and the legal services of several communities have been studying the possibility of filing an appeal against the Interterritorial agreement since Thursday morning. A new skirmish that will become the umpteenth chapter in the judicialization of the fight against the pandemic.
A mere body of technical coordination between technicians
According to the information collected by this newspaper, the drafts in which the two territories that have already decided to resort (Madrid and Castilla y León) and those who study at least other communities are very similar and intend to go to the contentious-administrative room of the National Court. The central argument, in short, is that the Interterritorial cannot impose its criteria because it is a mere body of technical coordination between technicians (not politicians) of the different territorial administrations.
The allegations are intended to affect article 69 of the Law of Cohesion and Quality of the National Health System, which was the one that in 2003 gave a nature charter to this forum, which it defined exclusively as a “permanent body of coordination, cooperation, communication and information on health services, among them and with the State Administration, which aims to promote the cohesion of the National Health System through the effective guarantee of citizens’ rights throughout the State territory.
This regulation, which is not an organic law that can affect fundamental rights, at no time – understand the jurists of the ‘rebel’ communities – does it establish the “mandatory” compliance with any of the council’s resolutions. In fact, in article 71, which regulates the functions of the Interterritorial, it is established that these will exclusively be “to issue recommendations” on all types of health matters, the “advice, planning and evaluation” in various fields of the National System of Health, the “coordination” of the National Health System and “cooperation functions” between the central administration and the autonomies.
The drafts consulted by this newspaper insist that Article 73 of this Law on Cohesion and Quality of the National Health System is clear when it comes to denying this body the executive capacity that the central Executive wants to give it. In this precept, in which the “operating regime” is established, it is textually established that “the agreements of the Board will be embodied through recommendations that will be approved, where appropriate, by consensus.” A consensus for mere “recommendations” that also certifies the regulations that establish the functioning of the council and that, obviously, do not contradict the law and at no time give a normative character to those agreements.
And that is where critical autonomies collide head-on with the central government. The former understand that “consensus” as synonymous with “unanimity.” In Health, however, they interpret it as the “majority” of the communities. The legal services of the autonomies try to settle the debate by pulling the only meaning recognized in the dictionary of the RAE: “Agreement produced by consent between all the members of a group or between several groups.” “All”, the lawyers of the ‘insubordinate’ territories insist on underlining.
For its part, the central government emphasizes that the Interterritorial is nothing more than a “sectoral conference” and that, therefore, it has to comply with the Law on the Legal Regime of the Public Sector, approved in 2015 under the majority of the PP, whose article 151 establishes that “when the General State Administration exercises coordination functions, in accordance with the constitutional order of distribution of powers of the respective material scope, the agreement adopted in the sectoral conference (…) will be mandatory for all the Public Administrations that are members of the Sector Conference, regardless of the direction of their vote ”. At that point, the communities reply that there has been no such “agreement” because there has never been the essential “consensus.”