The Spanish Legal System and Territorial Organization

Posted on Nov 10, 2024 in Law & Jurisprudence

1. The Legal System and Territorial Organization of Spain

1.1 The Legal System

What is Legal?

The legal system is the set of standards (normative system) that exists in a society at a given historical moment. It determines how that society is organized and how it resolves disputes.

Features of the Legal System:

  1. Unity: The legal system is a unit that compels all citizens and public authorities. This means the application of the rule to all situations included in its scope.
  2. Organized Group: The legal system is an organized group of rules.
  3. Hierarchical Nature: There are relations of subordination between rules. The principle of competition states that relationships between rules are not only based on hierarchy but can also be based on competence. This is common in complex systems with a high degree of decentralization, where entities like the State and Autonomous Communities (CCAAs) have jurisdiction over certain matters.
  4. Dynamic: The legal system is constantly changing and adapting to the needs of individuals.
  5. Plural Source: There is no single source of training standards. Several parliaments enact laws, and various administrations may make regulations.

What is a Rule of Law?

These are mandatory rules that contain criteria for resolving potential conflicts of interest.

Structure of a Rule of Law:

  1. Budget of Fact: The rules do not target a specific person; they are abstract and general, encompassing all events that may occur.
  2. Legal Consequence: This is not a consequence in the real world but rather a consequence within the rules. The legal consequence does not materialize automatically.
Example: Article 138 of the Spanish Penal Code

“He who kills another shall be punished, as guilty of murder, with the penalty of imprisonment of ten to fifteen years.”

  • There are other rules that prohibit or order actions.
  • For example, rules granting powers or organizational rules.
  • Article 12 of the Spanish Constitution (EC): “Spaniards are of legal age at eighteen.”
  • Article 56 EC: “The King is the Head of State, symbol of unity and permanence.”
  • Article 77 of the Workers’ Statute (ET): “The workers of the same company or workplace have the right to assemble.”

1.2 Public and Private Law

  • Public Law: Involves the power of public bodies (State, CCAAs, Ayuntamiento).
    • Standards:
      • Aimed at regulating organizations or activities of the State and other public entities.
      • Regulate relations between government and individuals.
      • Inequality exists between the Public Entity and the individual, justified by the pursuit of public interest.
  • Private Law: Regulates relationships between individuals.
    • None of the parties acts with state power.
    • All involved are considered equals.
    • Increasing state intervention exists (pursuit of public interest).

Branches of Private Law:

  • Civil Law: (marriage, inheritance, personality)
  • Business Law: (relationships between companies, navigation)
  • Labor Law: (governs labor relations)
Civil Law:
  • The Civil Code dates from 1889.
  • Its aim is the natural or legal person.
  • Two Notes:
    • It is the legal basis for all branches of private law.
    • It has a residual character when there are gaps in other branches of law.
Trade Law:
  • The Commercial Code is from 1885.
  • Focuses on entrepreneurs and professionals, including the constitution of businesses, their operation, and payment methods.
  • Proliferation of special laws regulating specific sectors exists.
Labor Law:
  • TR consolidated text of the Statute of Workers.
  • Regulates the legal status of employees or dependents.
  • Covers the employment contract.
  • The Workers’ Statute governs the conditions to be respected by employers in their hiring and employee obligations.
  • The Law Association and the Right to Social Security are two manifestations of Public Law. In the past, although the obligation was the employer’s, the state regulates the services to ensure these workers, speaking on the payment thereof.

Branches of Public Law:

  • Constitutional Law
  • Administrative Law
  • Financial and Tax Law
  • Procedural Law
  • Criminal Law
  • Ecclesiastical Law
  • International and Community Law

Constitutional Law

  • Spanish Constitution (EC) of December 27, 1978
  • Statute of Autonomy. Recent reforms.
  • It discusses:
    1. The fundamental rights and duties
    2. The Crown
    3. The three branches of government: the legislature (Cortes Generales), executive (government), and judicial (the Judiciary).
    4. The territorial organization of government: central government, autonomous communities, and local authorities.
    5. Constitutional Court, responsible for judging the adequacy of the rules to the text of the EC. It is beyond the judiciary.

Administrative Law

  • Law 30/1992 on the Legal Regime of Public Administrations and Common Administrative Procedure
  • Its objects are:
    1. Relations between the Public Administrations.
    2. Relations between government and citizens, unless it involves tax authorities.

Financial and Tax Law

  • On Finance (State)
  • Regulates the financial activity of public authorities.
  • Income and Expenditure (financial)
  • The General Tax Law regulates the relations between tax administration and citizens.
  • Law 30/1992 applies additionally to tax law (when the General Tax Law is not regulated).

Litigation

  • Its purpose is to regulate the organization, operation, and competence of judges and courts (or what is the same, the Judiciary).
  • * The Constitutional Court is not part of the judiciary.

Criminal Law

  • It is the branch of public law on jus puniendi (punitive jurisdiction = punishment).
  • Example: regular crime, punishment, establish misconduct, custodial sentences, and so on. Regulated in the Penal Code.

Ecclesiastical Law

  • It regulates the state’s relations with the various religious denominations, both in matters affecting personal relationships, religious marriage, including property.
  • Example: State economic agreements with the Holy See.

1.3 The Social and Democratic State of Law

  • Article 1 of the Spanish Constitution (CE).
  • Spain is a social and democratic state of law, which holds as superior values of its legal freedom, justice, equality, and political pluralism.
  • National sovereignty belongs to the Spanish people, from whom emanate the powers of the state.
  • The political form of the Spanish State is the parliamentary monarchy.

Rule of Law

A state in which the exercise of power is subject to legal rules that ensure the freedoms and rights of citizens before the state. Any act of power must be backed by a legal rule.

Characteristics of the Rule of Law:

  • Rule of Law (established by the Cortes Generales).
  • Separation of powers: legislative, executive, and judicial (balanced).
  • The legality of the actions of the Administration.
  • Protection of Rights and Freedoms.

Democratic State

A democratic state is one where representatives are elected by universal, direct, equal, secret, and free suffrage, with the freedom to submit nominations (all votes are equal).

Social Status

  • An interventionist state in economic, social, and cultural rights.
  • Articles 39 to 52 of the Spanish Constitution (CE). Principles guiding the economic and social policy (family and child protection, income redistribution, full employment, social security, health protection, access to culture, right to housing).
  • A state in which the authorities assume a significant degree of intervention in the economy (health, education, pensions, unemployment benefits…). Section 47 states that all Spaniards have the right to enjoy decent and adequate housing.
  • This involves overcoming the nineteenth-century liberal state (limited to addressing defense, public order, justice).
  • Conduct and freedoms and rights are not absolute or unlimited; they must be subordinated to public interest.

1.4 Territorial Organization of the State (Article 137 EC)

1.5 The Regional State of Spain

  • Article 2 EC: solidarity, unity, and national identity (unity of the nation and the right to autonomy).
  • Article 137 EC
  • Sections 140 and 141 EC (autonomy and local democracy, provinces, islands)
  • Article 143 EC (self-government of the autonomous communities, autonomous initiative)
  • Article 147 EC (Statute of Autonomy). The CE permits the existence of the Statute of Autonomy, but they can never go against it.

Article 2 EC

  • The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards, and recognizes and guarantees the right to autonomy of nationalities and regions which comprise it and solidarity among them.
  • State… principle of unity.
  • State… guarantees the right to autonomy of nationalities and regions that comprise it.
  • Principle of solidarity.
  • Top cooperation

Principles of Autonomy and Unity. Article 139 EC

  • There is a principle of unity of the nation and also a principle of autonomy for the CCAAs to manage their own interests.
  • Cannot in any way.
  • Article 139 EC establishes a very important threshold. No CCAA may take measures to prevent the free movement of goods and people across Spain.
  • Article 139 EC provides that all Spaniards should have the same rights and obligations in Spain.
  • This article also has implications in the field of taxes. The regions may not provide tax rules that prevent the free movement of goods and services.

Article 138 EC. Principle of Solidarity

  • Economic balance must exist between the various ACs.
  • There is a very important mechanism in the EC: the Compensation Fund, intended to correct economic imbalances between the territories. It is for capital expenditure.
  • The principle of cooperation has two concepts: the vertical (between State and CCAA) and the horizontal (among different ACs).

Territorial Organization of the Spanish State (Article 137 EC)

  • The State is organized territorially into:
    • Municipalities
    • Provinces
    • Autonomous Communities
  • All these entities enjoy autonomy in managing their respective interests.

Municipalities (Article 140)

  • The Constitution guarantees the autonomy of municipalities.
  • These shall enjoy full legal personality.
  • Their government and administration correspond to their respective Town Councils, consisting of Mayors and Councilors. (Ministers are appointed by the prime minister and may be people they trust, although not affiliated with any political party).
  • The Councilors shall be elected by the residents of the municipality by universal, equal, free, direct, and secret ballot in the manner prescribed by law. The Mayors shall be elected by the councilors or by the neighbors.
  • The law shall regulate the conditions under which the regime applicable open council.

The Province (Article 141 EC)

  • The province is a local entity with legal personality, determined by the grouping of municipalities.
  • It is a territorial division for the performance of government activities.
  • The government and autonomous administration of the provinces shall be entrusted to Provincial Councils.
  • We can create different groups of municipalities within the province.
  • In the archipelagos, the islands will also have their own administration in the form of Cabildo or Insular Council.

Autonomous Community (Article 143)

  • A union of bordering provinces with a common cultural and historical character, economic ties, island territories, and provinces with a regional entity that have agreed to self-government under the provisions of the EC and in the respective statutes.

Statute of Autonomy (Article 147)

  • They are the basic institutional norm of each Autonomous Community, and the State will recognize and bring them together as part of its legal framework.
  • They should contain:
    • The name of the Community which best corresponds to its historical identity.
    • The demarcation of their territory.
    • The name, organization, and seat of its own autonomous institutions.
    • The powers assumed within the framework established in the Constitution and the basis for the transfer of services related to them.
    • They were approved by the State.
  • First, it is the CCAA.
  • Each Legislative Assembly of each proposed CCAA submits its statute through a project that is submitted to Parliament for approval.
  • The same applies to subsequent amendments.

The Bodies of the Autonomous Regions

  • Article 152.1 EC sets how the organization of the CCAA should be.
  • We have imitated the constitutional regulation of the state.
  • A) The Legislative Assembly
  • B) The regional government: President and Chief of Government.

A) The Legislative Assemblies of the CCAAs

  • Different names: Parliament, Courts, Assembly, Diputación General (La Rioja), and the General Meeting (Principality of Asturias).
  • There are bicameral assemblies.
  • Internal structures and legislative procedures are similar to the state.

B) The Regional Government: President and Governing Council

  • The President is elected by the Assembly from among its members. The system of election and powers is similar to those of the Prime Minister.
  • The Governing Council comprises the Chairman and Directors. The same duties as the Government but for the CCAAs.

In the Community of Valencia

  • Article 20 of the Autonomy Statute, approved by Organic Law 5/1982, as amended by Organic Law 1/2006 of April 10.
  • The set of self-government institutions of the Community is the Generalitat Valenciana.
  • They are part of the Generalitat: les Corts Valencianes or les Corts, the President, and the Consell.
  • The institutions of the Generalitat also include the Sindicatura de Comptes (Trustee), the regional ombudsman (Síndic de Greuges), the Consell Valencià de Cultura, the Acadèmia Valenciana de la Llengua, the Consell Jurídic Consultiu, and the social and economic committee.

Competence of the CCAAs

  • The State and CCAAs split their responsibilities according to the material in question.
  • Article 149 EC. Lists the exclusive jurisdiction of the state.
  • There are 32 skills, some of which are:
    1. The regulation of basic conditions guaranteeing the equality of all Spaniards in the exercise of rights and in fulfilling their constitutional duties.
    2. Nationality, immigration, emigration, and asylum.
    3. International relations.
    4. Defense and Armed Forces.
    5. Administration of Justice.
    6. Commercial law, criminal and penitentiary; procedural legislation, without prejudice to the necessary specialties in these fields arising from the particularities of the substantive law of the Autonomous Communities.
    7. Labor legislation, without prejudice to its execution by bodies of the Autonomous Communities.
  • Article 148 EC. Lists the powers that the Autonomous Communities may assume (within the limits of Article 149 EC).
  • Article 149 EC. Lists the exclusive jurisdiction of the state.
  • The subjects that did not fall under either Article 148.1 EC or Article 149.1 EC belong to the state, but the CCAAs may include them in their Statute. From this moment, they will become the responsibility of the Autonomous Community concerned.