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The TC will face a strong internal debate if the Government nominates its two candidates without waiting for the CGPJ

The conservative majority of the TC could stop the solo landing of the two Moncloa candidates.

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The TC will face a strong internal debate if the Government nominates its two candidates without waiting for the CGPJ

The conservative majority of the TC could stop the solo landing of the two Moncloa candidates

MADRID, 28 Nov. (EUROPA PRESS) -

The Government has expressed on numerous occasions its intention to appoint its two candidates to the Constitutional Court (TC) without waiting for the General Council of the Judiciary (CGPJ) to appoint the other two that complete the third of four magistrates pending renewal. If he finally does so, it will open a strong debate within the TC, where the conservative majority could prevent Moncloa's nominees from taking office.

The president of the TC, Pedro González-Trevijano; the vice president, Juan Antonio Xiol; and magistrates Antonio Narváez and Santiago Martínez-Vares saw their mandate expire on June 12. The four make up the third that the Constitution commissions to renew the Government and CGPJ. In their day, González-Trevijano and Narváez were the two proposed by the Government of Mariano Rajoy, while Xiol and Martínez-Vares were nominated by the Council.

In these months, the Executive has fluctuated from positions that, at first, contemplated appointing its two candidates for the TC, although the CGPJ could not do the same because then the Organic Law of the Judiciary (LOPJ) prevented it, to others in which he advocated giving the governing body of judges a reasonable time so that, once the legal capacity to do so had been recovered, it nominated his pair for the TC.

The legal sources consulted by Europa Press 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, in the event that Moncloa chooses to advance without the CGPJ, he must clear the Plenary of the TC, since he is the one who must give the 'placet' to those selected.

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 emphasize 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.

The breakdown of the talks between PSOE and PP to renew the CGPJ reset the counter for negotiations on the TC in the CGPJ. The Minister of Justice, Pilar Llop, stated then that the Council had to be given time to reach an agreement. However, the Prime Minister, Pedro Sánchez, insisted last week that Moncloa will name his candidates "soon".

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 consulted by Europa Press maintain that the Constitution does not allow any other interpretation than that the renewal be made with the full third (the 4 magistrates), because the opposite would mean 'de facto' doing it by sixths (2 magistrates).

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.