The so-called “national priority” has burst onto the Spanish public debate with force in recent weeks, especially in the context of regional agreements and parliamentary discussions. However, beyond the political noise and media simplification, the truth is that we are facing an issue that requires strictly legal analysis. The key lies not in whether the concept is ideologically acceptable or rejectable, but in whether it can find a place within the Spanish legal system and on what terms it could be articulated without violating constitutional principles or the European framework.
It is advisable to start from an essential premise: "national priority" does not exist today as a legal category in our positive law. It is not a normatively defined principle nor an institution developed in laws or regulations. This, far from closing the debate, opens it. It implies that we are facing a concept in an embryonic phase, susceptible to legal construction, but which necessarily requires technical precision, normative delimitation, and submission to the controls of the Rule of Law. The problem is that the public debate has overtaken the legal one, turning an indeterminate term into a slogan, without having previously defined its content or its limits.
From the constitutional perspective, the first point of analysis is Article 14 of the Spanish Constitution, which enshrines the principle of equality. This principle does not imply an absolute prohibition of any differentiation, but only of those that lack objective and reasonable justification or that are disproportionate. The doctrine of the Constitutional Court has been constant in admitting that the legislator can establish differences in treatment as long as they respond to a legitimate purpose and there is a reasonable relationship between the means used and the objective pursued. In this sense, not every preference is, by definition, discriminatory. The key will be to determine whether the criteria used are objective, verifiable, and proportionate.
The Competencies of the Autonomous Communities
The second axis of analysis is found in article 139 of the Constitution, which guarantees the equality of rights of Spaniards throughout the national territory and prohibits measures that hinder free movement and establishment. This precept aims to preserve the unity of the internal market and avoid the territorial fragmentation of rights. However, its scope cannot be interpreted extensively to the point of preventing any criterion for access to public resources linked to the territory. The autonomous communities, in the exercise of their powers, can establish conditions for access to certain benefits or services, provided that they do not result in unjustified barriers to mobility or structural inequalities among Spanish citizens.
Added to this is the legal framework of the European Union, which introduces additional limits, especially through the principle of non-discrimination on grounds of nationality set out in Article 18 of the Treaty on the Functioning of the European Union. However, European law itself has admitted the possibility of establishing differences in access to certain benefits when these are linked to the degree of integration or the length of legal residence. The Directive 2003/109/EC on long-term residents is a clear example of how rootedness can operate as a legitimate legal criterion. This element is decisive, as it shifts the debate from nationality to objective parameters such as residence, contribution, or effective ties to the territory.
Lack of Legal Concreteness
The true deficit of the current debate is, therefore, its lack of legal concreteness. It has been framed in binary terms —for or against— without addressing the essential question: how would a possible priority system be normatively designed, what criteria would be used, in what areas would it apply, and under what guarantees. Without that technical development, the concept lacks operability and is reduced to a rhetorical instrument. With it, on the other hand, it could be subjected to constitutional and legal review, like any other public policy.
Ultimately, "national priority" is neither constitutional nor unconstitutional in itself. Its viability will depend exclusively on its specific legal configuration. The Law does not judge slogans, but norms. And only when these exist, with defined criteria and clear limits, will it be possible to determine whether we are facing a measure compatible with the Rule of Law or a violation of its principles. Meanwhile, the debate will remain political, but not legal.
*Elena Ramallo is a Doctor of Law and Researcher in AI, Justice, and Human Rights. Ramallo has worked with institutions, associations, and political parties, transferring regulatory proposals. Furthermore, she is recognized by United Nations as a defender of the Human Rights of women and minors, a trajectory that has been endorsed with nominations and distinctions of the highest international prestige: for the Princess of Asturias Award 2022 in the Concord category for the defense of Human Rights and SDG-5, for the Medal of Merit in Labor 2023 for the protection of equality and labor rights of victims of gender-based violence, for the International Anne Klein Award, for the International Women's Rights Award, for the Francisca de Pedraza Awards against Gender Violence, and for the FIDH National Human Rights Award, among others.
Furthermore, she has represented Spain, independently of the Government, in top-level international forums —such as in Colombia, before Ombudsmen from all over the world— presenting pioneering proposals for the protection of women and minors or, selected by the World Bank to participate in a study on Women, Justice and Business.