The Canary Islands find themselves trapped by the legal limit imposed by their full integration into the EU as an OR (Outermost Region).
The Residency Law, the limitation of housing sales to foreigners, or the protection of the Canarian labor market are unfeasible under the current status that links us to the international organization of European States.
The growing social unrest in the Canary Islands due to the institutional inability to guarantee access to housing, employment, and the roots of the local population has forcefully reopened the debate on the need to establish a Residency Law, mechanisms that limit the sale of housing to foreigners and non-residents, and measures to prioritize the hiring of Canarian people in the labor market.
These proposals, however, clash with a complex legal framework that prevents their application within the current framework of the Archipelago as an Outermost Region (OR) fully integrated into the European Union.
1. The legal framework of the ORs and the application of Union Law
The Canary Islands are part of the European Union as one of its nine ORs, a category recognized by Article 349 of the Treaty on the Functioning of the European Union (TFEU).
This integration implies the full application of European Union Law, with all its fundamental principles and freedoms, among which are:
Freedom of establishment and movement of persons (Art. 45 TFEU):
Guarantees that any European citizen can establish their residence in any Member State, including the ORs.
Free movement of capital (Art. 63 TFEU):
Prevents restrictions on investment, including the acquisition of real estate, by European citizens or companies.
Free movement of workers (Art. 45 TFEU):
Prohibits any discrimination, direct or indirect, based on nationality with regard to employment, remuneration, and other working conditions.
Principle of non-discrimination (Art. 18 TFEU):
Establishes that no EU citizen may be discriminated against on the grounds of nationality in the exercise of the rights recognized by the Treaties.
Primacy of Community Law and its direct effect: prevents national, regional, or local regulations from contradicting the principles of Union Law.
Under this legal architecture, it is unfeasible to enact a Residency Law that conditions fundamental rights such as the right to reside or work in the Canary Islands to criteria of rootedness or connection with the territory.
Likewise, the imposition of restrictions on the sale of housing by non-resident or non-Canarian citizens would violate the principles of free movement of capital and non-discrimination.
2. The inadequacy of Article 349 of the TFEU as an exception tool
Article 349 of the TFEU is often invoked as a basis for justifying possible exceptions.
However, this provision does not authorize the ORs to suspend the application of the fundamental principles of the Union.
Its function is to allow the adoption of specific measures, but only when it comes to compensating for the disadvantages derived from permanent structural factors (insularity, territorial fragmentation), and not to violate the fundamental freedoms of the Single Market.
This has been repeatedly interpreted by the jurisprudence of the Court of Justice of the European Union (CJEU), which has clearly defined the scope of this article.
Remember that the last paragraph of this provision states that the Council shall adopt the measures contemplated taking into account the special characteristics and requirements of the outermost regions, without endangering the integrity and coherence of the Union's legal order, including the internal market and common policies.
Therefore, this article cannot serve as a basis for justifying a differentiated residence policy or the exclusion of European citizens from access to housing or employment on equal terms.
3. The Canarian exceptionality in the Spanish Constitution and the inaction of the State
The Spanish Constitution, in its article 138.1, guarantees a principle of solidarity that attends to the economic, adequate, and fair balance between the different parts of the Spanish territory, and explicitly mentions the need to pay special consideration to the circumstances of the island and outermost territories.
Likewise, article 144.b) provides that the State may grant special legislative powers to the Autonomous Communities when exceptional circumstances exist.
The Canary Islands, as a remote, fragmented territory with high rates of structural unemployment and increasing demographic and tourist pressure, meet objective conditions that would justify a differentiated legal framework.
However, we find that 139 CE guarantees that all Spaniards have the same rights and obligations in any part of the State territory and that no authority may adopt measures that directly or indirectly hinder the freedom of movement and establishment of persons and the free movement of goods throughout the Spanish territory.
This has led the Spanish State to make a restrictive and passive interpretation of the constitutional possibilities, opting to maintain the current regime of full integration into the EU without activating mechanisms that allow the adaptation of the order to the Canarian reality.
It is true that for the limitations to reach non-resident Spanish citizens, a constitutional reform must be operated, but that reform is relatively simple, as recently happened with the reform of article 49 in February 2024.
4. The alternative route: the change of status towards the OCT model
The Treaty on European Union itself has contemplated since 1957 the existence of the Overseas Countries and Territories (OCTs), a regime applicable to regions geographically associated with Member States but which are not fully integrated into the Single Market nor subject to the entirety of Union Law.
Under Article 355.2 of the TFEU, Member States may request the modification of the status of their territories by means of a simple notification to the European Council.
Changing the fit of the Canary Islands from OR to OCT would not imply abandoning the EU, but it would allow for a more flexible and adapted relationship, as occurs with French, Dutch, or Danish overseas territories.
This change would allow:
- To legislate a Canarian Residency Law without violating the principles of the Treaty.
- To establish restrictions on the sale of housing to non-residents to protect the access of the local population.
- To design a priority hiring framework for Canarians in a labor market affected by chronic unemployment.
- To negotiate bilateral agreements with the EU that recognize the structural specificities of the Archipelago.
- To recover commercial freedoms, the spirit of the Free Ports of the Canary Islands, as inalienable and necessary franchises.
5. The political responsibility of the State and the silence of the Government of the Canary Islands
The problem does not lie in the legal impossibility of establishing protection mechanisms for the Canarian population, but in the lack of political will to activate the necessary tools.
It is the Spanish State that must request the change of status, and it is the Government of the Canary Islands that must demand it firmly, from an institutional position that represents the interests of the Archipelago.
If both governments persist in their inaction, they must assume responsibility for a situation in which the Canarian population is displaced, expelled, or impoverished in their own territory.
There are no longer technical or legal excuses because there is a solution, but it requires decision and commitment.
The accumulated experience since the entry of the Canary Islands into the EU demonstrates that the OR model, as it is designed, does not allow to defend or guarantee the social, economic, and territorial rights of the Canarian people in conditions of equity and sustainability.
Faced with a context of housing crisis, structural unemployment, and increasing loss of sovereignty over the resources of the Archipelago, it is urgent to rethink the fit of the Canary Islands in the European Union.
The OCT status offers a viable and legitimate legal framework, adapted to the Archipelagic reality of the Canary Islands.
Not advancing in this direction means accepting that the current legality will continue to be an obstacle to the well-being of the Canarians.
The question is not legal. It is political. And there is no longer room for ambiguity.