Regulations in Spanish Law: Concept, Nature, and Control

Posted on Aug 26, 2024 in Law & Jurisprudence

Item 13: Other Sources

The Regulation: Concept and Nature

Article 97 EC

The Government directs domestic and foreign policy, civil administration, and military defense of the state. It exercises executive and statutory authority under the Constitution and laws.

  • Concept: “Legal standard of value subject to the Act, which complements. By Regulation, the Administration involved in drafting the law, so that the regulatory standard is integrated.” STS, 20.12.1994
    • Nature:
      • Administrative act: (The result of government action)
      • General: (Rule seeks to regulate a broad perspective of legal reality, does not have a specific recipient but general)
      • Newness of the system: (Introduces new standards within the legal system)
      • Subordination to the law: (It must always go in favor of the law, the principle of hierarchy)
      • Non-derogable singular: (Singular administrative act cannot override the general, although this is made by a lower court)

Ownership of the Regulatory Power

  • The Government:
    • Schools (including government)
    • Individually, the members (ministers or ministerial order)
    • Other (commission delegated bodies can)
  • The Governing Council of ACs are
  • Constitutional Bodies:
    • The course of the gifts they Const (Art. 72 CE)
    • Other organs (CGPJ, EE.LL. ..)

Class Rules

  • According to the connection to the law:
    • Executives (secundum legem): These are the regulations that occur in the execution of a law, which are directly linked.
    • Independent (praeter legem): These are the regulations that occur without a previous law to execute.
  • According to the content:
    • Regulatory: Those who create a new law or modify it, affecting the rights and duties of citizens.
    • Organizational: Configured as a power autodisposición of their respective owners.

Real Name Cabinet Decree à / Chairman of Executive Committee Ministerial Orders

Control Regulations

  • Judicial Review:
    • Ministerial Orders and below:
      • Contentious Chamber of the Audiencia Nacional – LRJCA Article 12 (Law Regulating Contentious Administrative Jurisdiction).
    • Royal Decrees and Orders of Executive Committee:
      • TS Chamber III – Article 11 LRJCA.
    • Amparo:
      • Constitutional Court.
  • Procedure (Law 50/1997, of 27 of 11, the Government):

Article 24

1. The development of the regulations shall conform to the following procedure:

a) The initiation of the process of drawing up a regulation will be carried out by the middle management group by the production of the project, which together with a report on the need and opportunity for one and a financial report containing the estimate cost it will entail.

b) Throughout the process, in addition to the reports, opinions, and prior approvals mandatory, few studies and consultations are deemed appropriate to ensure the accuracy and legality of the text.

In any case, the regulations must be accompanied by a report on the gender impact of the measures provided for therein.

c) Prepared text of a provision affecting the rights and lawful interests of citizens, shall be heard, for a reasonable period of not less than fifteen working days, directly or through organizations and associations recognized by the law group them or represent them and whose purposes directly related to the subject of the provision. The decision on the procedure chosen to make inquiries of the public concerned shall be duly substantiated in the record by the court to agree to the opening of the oral hearing. Also, when the nature of the provision indicates, will be subject to public information during the period indicated.

This process may be abbreviated to the minimum of seven working days if duly substantiated reasons for so doing. Such a step may be omitted only when serious public interest, which also must be disclosed, as required.

d) You will not need the procedure provided in the previous paragraph if the associations listed have participated through reports or queries in the process described in paragraph b).

e) The hearing process for citizens, in its various forms, covered in subparagraph c) shall not apply to provisions governing bodies, offices, and authorities of this Act and the provisions of the Administration functional General of the State or organizations dependent or attached to it.

f) In addition to the report or concise report to begin the process of drafting the regulations shall be kept on file all the studies and consultations evacuees and other steps taken.

2. In any case, the draft regulations will be informed by the Technical Secretariat, subject to the opinion of the Council of State in cases envisaged by law.

3. You will need a previous report from the Ministry of Public Administration as the regulatory standard to affect the distribution of powers between the State and the Autonomous Communities.

4. The entry into force of regulations adopted by the Government requires its full publication in the Official Gazette.

The Constitutional Tradition

  • Function:
    • Complete loopholes.
    • Adapt the rules to social reality.
    • Guide the implementation of the standard.
  • Type:
    • Contra legem:
      • Provided no source of law.
      • He says things contrary to the law.
        • It has no practical application because the laws are repealed only by later
        • Exception: On the Law of Navarra and Aragon passed the custom over law provisions (as more important historical tradition).
    • Extra legem or praeter legem:
      • Regulates matters not addressed by law
      • This is a source of law.
    • Secundum legem:
      • He agreed with what the law says.
      • Does not apply because the law applies
  • Requirements:
    • Repetition over time, consistent and uniform.
    • Mandatory conviction.
    • Derived from the behavior of public authorities.

The General Principles

Article 9.3 EC Regulation:

“The Constitution guarantees the principle of legality, the hierarchy of norms, advertising standards, the non-retroactivity of punitive provisions are not favorable or restrictive of individual rights, legal certainty, accountability, and prohibition of arbitrary action by public authorities.”

  • Nature:
    • Informative.
    • Normative value.
    • Canon of constitutionality.
    • Realization of the higher values of the legal system.
  • Principles:
    • Constitutionality (9.1 EC):

      “Citizens and public authorities are bound by the Constitution and other legislation.”

    • Legality:

      The citizens are subject to the Rule of Law.

    • Hierarchy of norms:
      • The principle of hierarchy is to set the order of applicability of legal rules and criteria for resolving any contradictions between rules of different rank.
      • It assumes that lower-level rules cannot contradict or undermine the provisions of a superior standard.
    • Advertising Standards:
      • It means public access to the knowledge of the standard, which is usually through publication in the Official Gazette or in the Official Journals of the Autonomous Regions or Provinces will, as appropriate.
      • The publicity of the rules is intimately connected with the principle of legal certainty.
    • Non-retroactivity:
      • Article 25.1 of: “Nobody may be convicted or sentenced for actions or omissions which when committed did not constitute a crime, misdemeanor, or administrative offense under the laws then in force.”
        • This principle applies both to the penal provisions that are not favorable as the provisions restricting individual rights.
    • Legal certainty:
      • It is the quality of the system that produces certainty and confidence in the citizens about what is law in every moment and what likely will be in the future.
    • Prohibition of arbitrariness:
      • This principle aims to prevent sound is beyond the limits of discretion.