Freedom of association in Spain

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SWP 4 Final Spain.pdf(1.42 MB)
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Date
2024
Authors
Morales Sancho, Guillermo A.
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School of Law, University College Cork
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Abstract
The Spanish mainstream constitutional scholarship defines association as a voluntary, stable, and organised union of two or more people for the pursuit of common ends. Freedom of association is protected as a fundamental right under Article 22 of the Spanish Constitution and enjoys a multilevel recognition: universal (Articles 20 UDHR, 22 ICCPR and ICESCR), regional (Articles 11 ECHR, 12 EUCFR), and legal (mainly in the Organic Law 1/2002 – hereinafter ‘LODA’). The cited international agreement dispositions were incorporated into national law after their ratification and publication in the Spanish official bulletin (BOE). Most importantly, both the ECHR and the ECJ case-law bind the interpretation of the Spanish Constitutional Court regarding the fundamental right of association. There is a specific clause (Article 10.2 of the Spanish Constitution) ordering such a conform interpretation that the Constitutional Court has extended to the European Courts’ (Strasbourg and Luxembourg) case-law, but not to the observations of treaty bodies in charge of the supervision of international human rights agreements (soft-law), which are only seldom (and selectively) cited by the Constitutional Court. In the scope of application of EU-Law, the Spanish authorities are directly bound by Article 12 of the Charter of Fundamental Rights of the European Union (EUCFR) and the uniform interpretation provided by the ECJ. Legally, apart from the national statute (LODA), 5 out the 17 Spanish Regions (Comunidades Autónomas) have passed their own specific association acts, even though only two of them have the competence to do so. Additionally, there are countless types of associations (sports, religious, cultural, parents and students’ associations) regulated through specific statutes. The result is an electronic code of around 1,000 pages. As of the 31st of December 2021, there were 62,438 registered associations in Spain. Not included in that figure (they feature in a different Register) is the Spanish agelong tradition of religious brotherhoods, fraternities and communities, so vast that it rivals the exuberant English association culture. Unionisation, strike and collective bargaining are protected as separate fundamental rights (Articles 28, 37 of the Spanish Constitution). Political parties are a subspecies of associations (Article 22 of the Spanish Constitution). Unions and parties are required to have an internal democratic organisation and thus are subject to higher judicial scrutiny than regular associations (Article 6 of the Spanish Constitution). For-profit corporations are protected as well under the fundamental rights of free enterprise (Article 38 of the Spanish Constitution) and property (Article 33 of the Spanish Constitution), both enjoy a lower constitutional protection than associations (Article 53.2 of the Spanish Constitution).
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Freedom of association , Spain
Citation
Morales Sancho, G. A. (2024) ‘Freedom of association in Spain’, Societās Working Paper 04/2024 (12pp). Cork: School of Law, University College Cork.
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© 2023, the Author. Views expressed do not represent the views of the Societās project or the School of Law at UCC.