Limits of Legal Standards Effectiveness & Retroactivity
) Limits of the Effectiveness of Legal Standards in Relation to Time: Retroactivity and Non-Retroactivity. Discretion of the Constitution and the Civil Code
Time Limits: Mandatory legal rules are marked by their entry into force and their cessation.
Entry into Force of the Law
Laws become effective upon publication, as established explicitly or implicitly. If no date is set, Article 2 of the Civil Code states:
- Laws come into force 20 days after their complete publication in the Official Gazette, unless otherwise provided.
The entry into force is:
- Simultaneous throughout the country.
- Not immediate, but postponed for 20 days to allow for understanding and preparation.
Cessation of the Validity of Laws
Laws cease to be effective in four situations:
- When the law itself specifies a period of validity or is tied to a specific situation that ends.
- When expressly repealed by the legislature.
- When a subsequent law is incompatible with the previous one (implied repeal). This incompatibility can be due to:
- Contradictory regulations.
- The second law absorbing the first.
- When a subsequent law, even without being incompatible or expressly repealing the previous one, implicitly suggests its repeal.
The subsequent repeal of a repealing law does not reinstate the original law (Article 2 of the Civil Code).
A law that reinstates a previously repealed law is called restorative.
No law can be repealed by custom, disuse, or contrary action, but only by a general principle of law or subsequent legislation.
Value of Repealed Rules
Repealed rules retain some regulatory force when a new law, while replacing the old one, respects the relationships created under the first and does not fully subject them to its own regulation.
The repealed rule continues to govern the relationship, not as a law itself, but as the regulation implicitly or explicitly referred to by the new law.
Retroactive Legislation
Retroactive repeal means the law is considered to have never been in force. The repeal has effect not from the present, but from the moment the repealed law came into effect.
Non-Retroactivity and Retroactive Legislation
These concepts relate to the grandfathering of rights. Conflicts are resolved by transitional law, which establishes the boundary between situations governed by the old and new rules.
In our legal system, each instance of replacing an old law with a new one involves defining the regulatory change and the scope of the new law, either explicitly or implicitly.
Unless the new law states otherwise, it shall not be retroactive, as non-retroactivity is the basis.
Constitution and Civil Code on Retroactivity
The Constitution guarantees that no provision shall have retroactive effect if it imposes sanctions that are unfavorable or restrictive of individual rights (Article 9.3 of the Spanish Constitution).
The Civil Code, while not explicitly addressing retroactivity, implies the concept in its transitional provisions for its own entry into force. These provisions suggest that, in principle, the new law should not apply to relationships created under the old one.
However, in some cases, retroactivity may be reasonable. It is the legislature’s responsibility to assess this and pronounce it when deemed fair. The law, as stated, will be irretroactive, as the principle of non-retroactivity prevails in our legal system, starting with the Constitution (Article 9.3).
In conclusion, although the principle of non-retroactivity prevails, rules can be given retroactive application if the legislature so provides, with varying degrees:
- Minimum Retroactivity: The new law applies only to the effects of the relationship created under the old law that occur after the new law comes into force.
- Middle Retroactivity: The new law applies to the effects of legal relationships that occurred before its enactment but have not yet been completed.
- Maximum Retroactivity: The new law allows even the effects produced and completed under the old law to be undone and remade according to the new law.