After the last events in Catalonia, voices are raised pointing out the need to apply the National Security Law. There are also opinions favorable to a new application art. 155 of the Constitution or of art. 116, regulator of exceptional states. At this point, it may be necessary to analyze what the application of the National Security Law would imply, differentiating it from the other options.

We have already gone through an application of article 155, and the Constitutional Court has issued its ruling in this regard (STC 90/2019), configuring this instrument of constitutional coercion as a necessary measure, among others, of the principles of necessity, temporality and proportionality . Its application was aimed at the dissolution of the Parliament of Catalonia and the cessation of the president and Government of the Generalitat, with some concrete measures in various sectors, excluding communication and education. It is an instrument that is adopted at the proposal of the Executive, but which requires the agreement by absolute majority of the Senate for its application.

The states of exception and siege in Spain have never been adopted (yes the alarm, in relation to a strike by air traffic controllers, to ensure air traffic), provided for in art. 116 of the Constitution. These are very exceptional instruments (hence their name) that imply restrictions, and even suspensions, of rights to citizens. The state of exception is provided for alterations of public order and that of siege for attacks on constitutional order. The latter also allows the replacement of the authorities, which must also act under the military command provided by the Government . In order to declare them, the authorization of the Congress of Deputies is required, in the case of the state of exception, and it is the Congress that directly has the competence to declare the state of siege, by absolute majority.

What would the National Security Law provide? In principle, and in general, it must be said that it allows to operate with fine surgery in all administrative sectors and, even, in civil society, since both public authorities and citizens are involved in ensuring national security. And this by decision of the President of the Government, who must issue a decree in this regard, which also implies the Council of Ministers and the procedure for issuing decrees, with the addition, in this case, of the participation of the Council National Security.

Article 3 of Law 36/2015, National Security Law, defines national security as the State's action aimed at protecting the freedom, rights and welfare of citizens, to guarantee the defense of Spain and its principles and values constitutional, as well as to contribute together with our partners and allies to international security in the fulfillment of the commitments assumed. Nothing to do with exceptional states, which according to art. 2 of this Law are governed by its own regulations, which is important to note to avoid any misrepresentation about the purposes and scope of the measures that can be taken in accordance with the National Security Law.

This Law attributes to the President of the Government (art. 15.c) the competence for the declaration, by decree, of a situation of interest for national security, which may occur, according to art. 10 of the Law itself, when specific attention is required to preserve the rights and freedoms, as well as the well-being of citizens, and to guarantee the provision of essential services and resources (by way of example the law mentions cybersecurity, economic and financial security, maritime safety, air and outer space security, energy security, health security and environmental preservation ).

In the Decree that declares the situation of interest for national security will be included, by express provision of art. 24 of the Law, the definition of the crisis, the geographical scope of the affected territory, the duration and if possible possible extension, the appointment if deemed necessary of a functional authority, and the determination of its powers to direct and coordinate the actions that they proceed, as well as the determination of the human and material resources necessary to face the situation of interest for National Security.

Any authority (state, regional or local) is obliged to provide the human and material resources aimed at an effective application of the measures listed in the declaration (art. 27.4 of the Law). And private entities are also within the scope of the Law (art. 17), especially when they are operators of essential services and critical infrastructure.

It should also be noted that, according to the Constitutional Court (STC 184/2016, constitutionally validating the content of this Law), it is the State that coordinates, that is, who has the political direction on national security, as a subject subsumed in public security , in accordance with article 149.1.4.ª and 29.ª of the Constitution. The Autonomous Communities do not direct the coordination but are subject to reinforced coordination. They do not lose, neither they nor the local administrations, the ownership of their powers, but they have to exercise them in accordance with the provisions of the Decree that regulates the situation of interest for national security.

Measures such as the direct control of any body of any administration, officials or police officers, for example, as well as of the entities providing essential services or critical infrastructure, which will have to act under the direction of the one designated by the Spanish Government, are possible under this law. With this, the Government can take direct control of any crisis situation without resorting to the declaration of exceptional states or art. 155 of the Constitution. Of course, immediately informing the Congress of Deputies, about the measures taken and the evolution of the situation (art. 24.3 of the Law).

We see, then, that with the National Security Law you can influence any administrative field, essential services and critical infrastructure included. It is about delimiting them, individualizing them, deciding in which areas they are going to act and how. It is not a generic or indeterminate instrument, but a mechanism that allows operating surgically in the areas that are considered necessary, either one or several, being necessary to establish them by decree.

It is, therefore, the Executive, President of the Government and Council of Ministers, the power concerned for it. No prior authorization is required from the legislative chambers, as is the case of the Senate in art. 155 CE or the prior authorization of the Congress in the state of exception or its direct declaration by this chamber in the state of siege. This has the advantage, and the inconvenience, of being the direct responsibility of the president and his Government, that they will not need previous debates in parliamentary headquarters that could frustrate the action.

At present, with the cameras dissolved, nothing prevents the president and his Government from initiating the preparation of a declaration of interest for national security, since the Regulatory Law has nothing in this regard and the subsequent communication to Congress, to occur, could be done before the permanent delegation of the chamber. Although I do believe that it would be convenient if the decision and its application were also supported by the greatest possible number of political and social forces, since these are important interference with a serious problem, with intensive intervention measures that are considered necessary. It is a Law that addresses State problems that require a State response from politicians and also from citizens.

Teresa Freixes is Professor of Constitutional Law and Jean Monnet ad personam. And general secretary of the Royal European Academy of Doctors.

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