Understanding the Rule of Law and its Principles
Rule of Law
It’s where the law applies to the rulers, the law governing the people.
1. Separation of Powers
Executive-Administrative (ADM): The administrative function of the Executive (E) is responsible to the President (PR).
- Command: The head of faculty is entrusted with issuing administrative and executive orders to subordinates.
- Executive: This function gives authority to the PR to implement predefined rules.
- Discretionary: Functions of the PR and other administrative leaders to act within a more
Key Cases: Berlusconi, Banco Popular & Gauweiler – Banking & Finance Law
Key Cases in Banking and Finance Law
The Berlusconi Case: Control on Acquisition of Holdings
Facts: Berlusconi (B) acquired 30% of Mediolanum, requiring authorization. Due to prior tax fraud charges, authorities forced Berlusconi to divest, citing failure to meet reputational standards. A conviction was avoided due to the principle of non-retroactivity. B altered the ownership structure.
Issue: Does the national authority have the power to force divestiture, and does this breach the principle of subsidiarity?
Read MorePrinciples of State Organization: Legality and Constitutionality
Topic 1: Principles of State Organization and Functioning
The Principle of Legality and Constitutionality
Within any model of state, and as part of the positive legal system, there is a set of principles that organize and drive the proper functioning of the political, legal, institutional, and constitutional political community.
Many of these principles are collected, in our case, in Article 9.3 of the Spanish Constitution (EC). These include the classic principles of publicity of rules, non-retroactivity
Read MoreAdministrative Act Enforcement: Procedures and Regulations
2. Enforcement of Administrative Acts: Budgets, Implementation, and Coercion
Administrative acts are presumed valid and effective. Some acts empower the administration to compel compliance, even against the recipient. For the administration to forcibly execute its acts, the following conditions must be met:
- An administrative act proceeding must exist.
- This act cannot be legally suspended.
- Prior warning is necessary before execution.
- The appropriate means of execution must be chosen. There are four procedures,
Tax Credit Guarantees
Tax Credit Guarantees: What You Need to Know
What Secures a Tax Credit?
The taxpayer demonstrates the Treasury’s intention to cover tax credits through a warranty. This ensures the recovery of credits under Fiscal Articles 141 to 144 and 60 to 71.
Ways to Guarantee Tax Interest (Art. 141)
Acceptable forms of guarantee include:
- Cash deposit
- Pledge or mortgage
- Guarantee from an authorized institution
- Joint obligation assumed by others
- Securities or value of the taxpayer’s credit portfolio (administrative)
Warranty
Read MoreSpanish Constitutions: A Comparative Analysis
Spanish Constitutions (1808-1845)
Status of 1808
- Legislative Power: Real initiative enacted. Hearing the cuts.
- Shaft Power: For the King and King orders and ministers. The responsible ministers.
- Judicial Power: Independent. The King appoints the judges.
Constitution of 1812 (Cortes of Cadiz)
- Author: Cortes of Cadiz
- Characteristics:
- Affirmation of national sovereignty
- Introduction of the division of powers
- Declaration of the equality of all citizens before the law
- Universal suffrage elections
- Recognition of