Rules with the Force of Law in the Spanish Legal System
Item 12: Range with the Rules of Law
The Rules of Legal Rank
The Legislative Power of the Executive
(The rules with the force of law do not emanate from the legislature)
- Innovative Capacity of the System: (Rules that may govern matters not regulated by law, may amend or repeal a law)
- Rules Passive Resistance: (Are acts of executive power, can only be amended by a regulation having the force of law)
- Typology: (EC only provides these exceptions in the legislative monopoly of parliament)
- Emergency Provisions Regulations: (rules stems from government action)
- Delegated Legislation: (parliament delegated to the executive development work).
The Decree Law
Article 86
1. In case of extraordinary and urgent need, the Government may issue temporary legislative provisions which take the form of decree-laws and may not affect the regulation of basic state institutions, rights, duties and freedoms of citizens contained in the Title I, the system of Autonomous Communities, or the general electoral law.
2. The decree-laws shall be immediately submitted for debate and voting by the entire House of Representatives convened for this purpose if not in session, within thirty days of its promulgation. Congress must act within that period, specifically on their ratification or abrogation, for which the Regulation will establish a special summary procedure.
3. During the period established in the previous section the Cortes may process them as draft legislation by the urgent procedure)
- Enabling Course and Limits: (extraordinary and urgent, eg: flood, natural disasters, etc.)
- Need: (it can only be regulated by decree-law is used to give a solution).
- Emergency
- Extraordinariness: (not provided).
- Material Scope: (the government is responsible for assessing whether these three points are true, there are cases where the TC to declare unconstitutional a decree for failing to meet these three requirements, but normally the TC tends to trust the word of the Government).
- Form: adoption and entry into force (adoption by the government, cabinet by decree law, approved by Congress by a royal decree, enter into force after publication).
The Decree Law: The Recognition
- Statement of Parliament
- Recognition: (speech to Members of Congress after 30 of approval to validate or not approval).
- Conversion into Law: (on the continuing debate within the legal system or not. 3 cases are reviewed from a policy perspective).
- The Decree Law and Legal System
- Effects of Provisional à Decree: (Decree validate the above)
- Effects of Passive Resistance Validation: (Congress did not validate, no longer in force at the time)
- Recognition and Law: (accepted as ordinary law decide to deal in the CAAC approved the chairman asked whether any party wants their treatment as ordinary law)
Processing Period: valid for 30 days, validation – Decree-law, a period that is being processed as ordinary law.
Delegated Legislation
- Concept
Article 82 EC
1. The Parliament may delegate to the Government the power to issue rules with the law on specific matters not included in the previous article.
2. Legislative delegation must be granted by a law of bases when its purpose is to draw up texts in sections, or by an ordinary law in the case of consolidating several legal texts into one.
3. Legislative delegation must be granted to the Government expressly for a concrete matter and with a fixed limit for its exercise. The delegation shall expire by the use of it then the government through the publication of the relevant standard. May not be construed as having been granted implicitly or for an indefinite period. Nor shall sub-delegation to authorities other than the Government itself.
4. Framework laws shall define precisely the purpose and scope of legislative delegation and the principles and criteria to be followed in its exercise.
5. Authorization for consolidating legal texts shall determine the regulatory domain referred to the contents of the delegation, specifying if it is restricted to the mere formulation of a single text or whether it includes regulating, clarifying and harmonizing the legal texts have to be consolidated.
6. Without prejudice to the jurisdiction of the Courts, Laws of delegation may provide in each case for additional control.
- Typology
- Articulated Texts
- Texts Consolidation: (there are several laws that legislate on an issue.
- Enabling Standard
- Act text articles à base: (harmonized and giving coherence)
- Ordinary Law of Delegation to Consolidated Text: (connect in a single Labor Art copy and paste).
Enabling standard (adopted by parliament).
Delegated Legislation
- Delegation
- Bounds
- Materials
Article 81
1. Organic laws are those relating to development of fundamental rights and public freedoms, those approving the Statutes of Autonomy and the general electoral system and the other under the Constitution.
2. The approval, amendment or repeal of the Organic Laws require an absolute majority of Congress in a final vote on the entire project.
3. Framework laws may in no case:
- Authorize the amendment to that Act bases.
- Power to make rules retroactively.)
- Temporary: (term to exercise the content).
- Content: (make a text from some bases, diffuse and obscure issues)
- Modification
- Adopted: (Senate & Congress)
- Control: (can have special control formulas)
- Exercise
- Delegated: (or may delegate the power once delegated)
- Form: Royal Decree
The Control of the Force of Law Rules (Three Levels of Control)
- Control in Parliament
- Recognition of Enacted Laws: (legislative validation> Government + congress of deputies, is published in its official journal)
- Review of Legislative Decrees: (1 month to comments made by Members or parties, if an observation comes from a process that could modify the decree)
- Court Based Control: (you can only use in front of the TC)
- Contentious Jurisdiction: (the CT can be used by its procedural aspect).
- Material Scope: excesses in the delegation, exercise ultra vires (Congress for an abuse of the delegation that the government introduced rules not enabled)
- Field Trial: compliance with the procedure (may be regulated by ordinary court)
- Control of Constitutionality
- Constitutional Competence: (it can only assess the agreements on jurisdiction)
- Interdiction of Arbitrariness: (decrees law)
The Force of Law Acts
(acts not only laws but are attacked before the TC,
- Section 27.1. B) OLCC, among others. (Not regulated in the EC if the provision of the law)
- Features
- Parliamentary origin
- Control of constitutionality (subject only to review by the TC)
- Relationship with the law (does not have the capacity to innovate law).
- Examples
- Staff Regulations of their Cameras: (STC 138/1988)
- Agreement on the Recognition of the Decrees
- Approval of International Treaties
- Miscellaneous Agreements Cameras are