## Facts

- The Basque Country is an autonomous community of Spain with its own parliament and government, operating within the framework of the Spanish Constitution.
- In 2008, the Basque Parliament enacted **Law 9/2008 (27 June 2008)** to organize a **popular consultation** of Basque voters on two political questions linked to peace and Basque self-determination.
- The law authorized the **Lehendakari** (Basque president) to submit two questions to the Basque electorate: (1) support for a dialogued end to violence, and (2) support for opening negotiations toward a “Democratic Agreement” on exercising the Basque people’s “right to decide,” with the agreement to be put to a later referendum.
- Law 9/2008 treated the consultation as **nonbinding**, fixed the vote for **25 October 2008**, and treated the consultation as convened as of **15 September 2008**.
- The **President of the Government of Spain**, through the State Attorney, filed an **abstract constitutional challenge (recurso de inconstitucionalidad)** against Law 9/2008, arguing that the “consultation” was, in substance, a **referendum** and that **only the State** may authorize referendums under the Constitution.
- The Spanish Government also argued that the law’s premise of a Basque “right to decide” conflicted with constitutional rules on **sovereignty** and **constitutional revision**, and that the Basque Parliament improperly used a **single-reading (lectura única)** procedure to pass the statute.
- By invoking the Constitution’s **automatic suspension mechanism (Article 161.2 CE)**, the Spanish Government’s challenge suspended Law 9/2008 while the Constitutional Court decided the case.
- The Basque Parliament and Basque Government defended Law 9/2008 as a lawful exercise of self-government: a nonbinding consultation rather than a constitutionally regulated referendum.

## Issues

1. Whether Law 9/2008’s “nonbinding popular consultation” was, in substance, a **referendum**, despite its label.
2. Whether an autonomous community has competence to call an electorate-wide vote of this kind, or whether **authorization of referendums** belongs exclusively to the State under the Constitution.
3. Whether a regional law initiating negotiations based on a Basque “right to decide” is compatible with the Constitution’s allocation of **national sovereignty** and its **constitutional amendment** procedures.
4. Whether the Basque Parliament’s use of the **single-reading** legislative procedure was valid for a law of this nature.

## Decision

- The Constitutional Court (full bench) **upheld the challenge** and declared **Basque Law 9/2008 unconstitutional and void in its entirety**.
- The Court held that the measure was a **popular consultation by way of referendum** because it called the Basque electoral body to vote on questions of clear political significance through a regulated voting process; the fact that the result was described as “nonbinding” did not change its constitutional character.
- Because the Constitution reserves to the State the **exclusive competence to authorize popular consultations by referendum** (including those directed to the electorate), the Basque institutions lacked authority to convene the vote.
- The Court rejected the law’s attempt to treat the Basque autonomous community as a separate holder of **sovereign power** capable of initiating a “right to decide” process outside the Constitution’s channels; changes to Spain’s territorial-political order must proceed through the Constitution’s formal revision procedures.
- The Court also found the **single-reading (lectura única)** procedure inappropriate under the Basque Parliament’s rules for legislation of this importance and complexity, adding a procedural basis for invalidity.

## Legal Principles

- The constitutional classification of a vote depends on its **substance and effects**, not the label used by the legislature; an electorate-wide consultation regulated as a vote on political questions can be a **referendum** even if framed as nonbinding.
- Under the Spanish Constitution, the **State** holds exclusive authority over the **authorization of popular consultations by referendum**; autonomous communities cannot unilaterally convene referendum-type votes directed at the electoral body.
- **National sovereignty** belongs to the **Spanish people as a whole**; an autonomous community is not a sovereign subject separate from Spain.
- Initiatives that seek to reconfigure the political-constitutional relationship between an autonomous community and the State must use the Constitution’s **formal amendment procedures**, not ordinary regional legislation.
- Parliamentary procedural autonomy has limits: using an abbreviated process such as **single-reading** may be invalid when it prevents the deliberation required for a statute with major constitutional and institutional consequences.

## Conclusion

In Judgment 103/2008 (11 September 2008), Spain’s Constitutional Court struck down Basque Law 9/2008 because the planned “nonbinding” consultation was, in substance, a referendum that required state authorization, because the law relied on a view of Basque sovereignty incompatible with the Constitution’s allocation of sovereignty and amendment rules, and because the Basque Parliament adopted the law through an improper single-reading procedure.


Basque Referendum, Judgment 103/2008 (11 September 2008) (2008)