The Constitutional Court decides not to examine the two Government candidates while waiting for the CGPJ to name theirs

The TC will inform the CGPJ that the Executive has already appointed so that the Council also designates its two applicants

MADRID, 29 Nov. (EUROPA PRESS) -

The Constitutional Court (TC) has chosen not to immediately examine the two candidates appointed this Tuesday by the Government to form part of the TC --the former Minister of Justice Juan Carlos Campo and the former senior official of Moncloa Laura Díez--, waiting for the General Council of the Judiciary (CGPJ) to also name its two applicants, according to sources from the guarantee court consulted by Europa Press.

The sources explain that, for the moment, Campo and Díez will not be examined alone in the plenary session of the TC, which must take a suitability test to verify that the nominees meet the legal requirements to be a Constitutional magistrate -- being Spanish and magistrates, prosecutors, university professors, public officials or lawyers, all of them jurists of recognized competence with more than 15 years of professional practice--.

The aforementioned sources indicate that, when the TC receives the agreement of the Council of Ministers by which Campo y Díez is appointed, it will notify the CGPJ so that the latter in turn proceeds to appoint its two applicants to the court of guarantees .

The president of the TC, Pedro González-Trevijano; the vice president, Juan Antonio Xiol; and Antonio Narváez and Santiago Martínez-Vares saw their mandate expire on June 12, in the case of the four magistrates that make up the third that the Constitution mandates to renew the Government and CGPJ.

Legal sources explain that the key question is whether these four magistrates can be renewed in parts --two and two-- or if, from the literal interpretation of the Constitution, it can only be deduced that the full third must be replaced. A mystery that will correspond to the Plenary of the TC, if it finally examines the Moncloa nominees alone.

Initially, sources from the court of guarantees saw it difficult for the two aspirants for the Executive branch to overcome the plenary filter without the two from the CGPJ, because -they explained- the Council could not fulfill its constitutional function due to the reform of the LOPJ operated in March 2021 that prohibits the body from making discretionary appointments in the judicial leadership while it has expired, a situation in which it has been going for almost four years.

However, the same sources now point out that the scenario changed last July, when PSOE and Unidas Podemos promoted the approval of a second reform so that the Council would recover its power to fill vacancies in the high courts, although only for the Constitutional one.

Since then, the progressive and conservative members have been negotiating their two names with little progress. The two blocks have promised to hold a first vote on December 22, although CGPJ sources warn that this does not guarantee that there will be white smoke that day. At the moment, the only formal candidate is the magistrate of the Supreme Court (TS) José Manuel Bandrés on behalf of the progressive current.

TC sources consider it feasible for the two government aspirants to take office because, they state, it is one thing that the four candidates cannot go due to legal impediment -as was the case before the second reform of the LOPJ- and another that it cannot be renewed the Constitutional because one State body blocks another, since --they allege-- since July the renewal of the court of guarantees depends solely on the will of the members of the Council.

In addition, they recall that there is already a historical precedent for the incomplete constitution of the TC. The first Constitutional magistrates were appointed on February 14, 1980 and days later, on the 25th, they took office. There were only ten because the two from the CGPJ were missing and it had not yet been constituted. The court was not fully constituted until July 12, but until then it functioned as a college of magistrates.

Faced with this thesis, other sources of the TC maintain that the Constitution does not allow any interpretation other than that the renewal be done with the full third (the 4 magistrates), because the opposite would mean 'de facto' doing it by sixths (2 magistrates). .

And they point out as a favorable precedent for this position what happened in 2004, when the CGPJ appointed Pascual Sala and Ramón Rodríguez-Arribas, and the Government of José María Aznar, already in office after the electoral victory of the PSOE with José Luis Rodríguez Zapatero, opted for not designating its two candidates, who were finally appointed by the new Socialist Executive, with Manuel Aragón and Pablo Pérez-Tremps.

Thus, the key to the plenary session will be held by the current conservative majority of the TC, from 6 to 5, since the position of magistrate Alfredo Montoya --who must fill the Senate-- remains vacant.

It should be remembered that, if the Government finally decides to appoint on its own, and obtains the approval of the Plenary, the majority of the Constitutional Court will change because González-Trevijano and Narváez, at the time nominated by the Rajoy Executive, would be replaced by the two sent by the Sánchez Cabinet, configuring a progressive majority of 7 to 4, in the absence of the two from the CGPJ.