Bullfighting: amid public entertainment, cultural heritage and animal protection

The judgment of the Spanish Constitutional Court (CCJ) 177/2016 overturned the ban on bullfighting throughout the territory of Catalonia that had been established under Catalan Law 28/2010 of 23 August. This prohibition, implemented within the framework of the autonomous community s competences in the areas of animal protection and public entertainment events, was declared unconstitutional in a rather hasty manner and without the decision being thoroughly reasoned by the Spanish Constitutional Court (SCC). The Court does not analyse the aforementioned competences but rather places them under the domain of the State law on shared competence for cultural heritage. This situation is a consequence of bullfighting having been included in this category on the basis of two state laws that were enacted subsequent to the Catalan norm. In this regard, the SCC ruling interprets jurisdictional concurrence within the area of cultural heritage in an unprecedented manner, granting Article 149.2 of the Spanish Constitution (SC) full functional content, a controversial aspect in the doctrine until now. This means that state legislation enacted under its umbrella takes precedence over any autonomous-community regulation where it has an impact. This is related to both the specific matter in question and to any other competences that fall exclusively within the domain of the autonomous community, some of which, including public entertainment events and public order, are of major relevance. The fact that the Court limits its reasoning to this apodictic approach excludes any reference in the judgment to other issues of substance that were also raised by the petitioners. These include the charge that the autonomous community s banning of a cultural activity also has an economic dimension that affects individual free enterprise and freedom of movement, as well as artistic creation. Finally, the SCC judgment fails to make a doctrinal analysis of issues such as the regulation of animal protection, which despite being new, also have a strong social dimension.