Spanish Law: Organic vs. Ordinary Laws
2. Ordinary Laws
2.1. Types and Overview
Ordinary law is the generic, residual legal model; it is an act of Parliament following the regular legislative process. It also includes rules developed by autonomous parliaments within their remit. Ordinary laws of the State include:
- Laws of Delegation: Parliament delegates to the government the power to issue legislative decrees.
- Basic Laws: The state regulates basic aspects of a subject, preventing Autonomous Communities from legislating on those areas.
- Framework Laws: These belong to the block of constitutionality.
- Budget Act: This has a specific approval procedure; legislative initiative rests with the government.
Another aspect to consider is how ordinary laws are handled. We distinguish between “laws of commission,” discussed and approved by legislative committees without plenary consideration, and “laws in plenary.”
Ordinary law is subordinate to Basic Law, but an Act takes precedence over ordinary law.
When applying the law, if an Organic Act operates within its powers, it should be preferred, regardless of whether it precedes or follows the ordinary law. However, if the Act exceeds its powers, the conflict’s resolution depends on whether the law is prior or subsequent to the ordinary law. A later Organic Law supersedes; if earlier, unconstitutionality must be raised before the Constitutional Court. If the Court finds the Organic Act exceeds its powers, it may declare the law ordinary and repeal it.
2.2. State Law and Autonomy Law
- Relative Primacy of State Law and Concurrency Issues:
Matters not assigned to the State by the Constitution may be addressed by the Autonomous Communities under their statutes. Powers not assumed by the Statutes of Autonomy belong to the State; State laws prevail in case of conflict, unless the matter is unique to the community.
This is the prevalence clause for State law where State and autonomic regulations govern the same area. State regulations displace regional rules.
However, this prevalence is limited by constitutional provisions regarding matters of exclusive competence of the Autonomous Community. In such cases, autonomic law prevails.
The term “exclusive competence” has often been misused in Statutes of Autonomy, leading to conflicts brought before the Constitutional Court.
While the Spanish Constitution includes a clause to resolve conflicts, in practice, it’s not easily applied and requires frequent Constitutional Court intervention.
Item 17 of the Constitution: Source of Legal Sources; Rules Passed by Parliament
1. Organic Laws
1.1. Definition
Organic laws are a significant innovation in the Spanish legislature.
- Material Concept:
Organic laws relate to specific matters. The Constitution mandates their use for developing fundamental rights and civil liberties, adopting statutes of autonomy, establishing the general electoral system, etc. Most deal with the state’s institutional and territorial organization.
The Constitutional Court considers the use of Organic Acts exceptional, requiring restrictive interpretation of their scope and careful assessment of their application.
Regarding fundamental rights and civil liberties, the Court specifies that the reservation applies only to Articles 15-29 of the Constitution. It excludes matters of amparo. The Court defines the general electoral system as the rules for electing representative institutions of the state and its territorial entities, with constitutional and statutory exceptions.
For fundamental rights, the rule reserves regulation to the direct legislative development of the fundamental right, ensuring its substance, while other aspects may be attributed to state or regional legislatures.
- Formal Concept:
Organic Acts require a specific procedure, needing more support than ordinary legislation. The Constitution mandates an absolute majority in Congress for approval, revocation, or amendment. This vote occurs on the final draft, after discussion in the House and before Senate transmission; it’s repeated after Senate changes.
- Organic Matter and Related Matters:
Organic laws often include articles concerning non-organic matters, but these gain the organic law’s rigidity due to the absolute majority approval.
Constitutional jurisprudence allows including related matters, subject to the principle of freezing the range, unless the Act or Constitutional Court specifies otherwise. The legislature must concretely define precepts governing related matters, or the Constitutional Court may do so.
Related matters are those beyond the strictly reserved organic scope but regulated by the Act as a necessary complement. The Constitutional Court considers this legitimate when the themes match a systematic and sound legislative policy.
1.2. Relationship with Ordinary Law
Organic and ordinary laws have equal legal status and force. Their relationship is governed by the principle of competition. Both types of laws operate within material scopes defined by the Constitution.
Ordinary laws cannot modify organic law provisions, and organic laws cannot regulate matters outside the constitutional limitations. If an ordinary law modifies an organic law, it may be declared unconstitutional. If an organic law addresses matters reserved for ordinary law, it may be challenged for exceeding its scope. The Court may declare the law ordinary or some provisions ordinary.