Understanding Regulatory Powers: Origins, Foundations, and Classes
The Regulation: Origins and Foundation of Regulatory Powers
The regulation does not originate from popular will, as represented in legislative chambers, but from the administration or government.
All public administrations, as part of their autonomy, possess regulatory powers. The regulation follows a procedure for processing and approval. The regulation has a place in the legal system, subordinate to the EC and the law, especially when it originates from the State.
Within each administration, there is a distinct hierarchy, depending on who dictates the regulation. Regulations are not dictated solely by the head of each administration; sometimes, subordinate bodies can also issue regulations. The rules can originate from any public administration, though the Government is the primary entity with this faculty.
Some examples:
- Ministers can sometimes enact a regulatory standard.
- Public Administrations also have the ability to create instrumental bodies that may also have regulatory powers.
The authorities can issue regulations based on their nature and the organ involved:
- Ad extra: Linking citizens.
- Ad intra: Linking to the inside, for its organization and internal functioning within each administration.
In the field of local government, Article 13 of the LO 30/92 recognizes the regulatory authority as part of municipal and local autonomy.
Additionally, the following may also have regulatory power:
Instrumental organizations, such as those created by the government.
Other types of public bodies, such as public law corporations, can also make rules and regulations, but will always do so to regulate the institution and establish rights and duties of their members.
Universities also possess regulatory capacity, provided it is for the internal functioning of the university and does not directly affect the general population.
The reason for regulatory authority is coupled with the power to rule; they cannot function independently.
Classes of Regulations
We encounter several classifications of regulations:
- By origin:
- Ad intra – depending or also known as administrative rules
- Ad extra – also known as legal regulations.
Even more important is the classification based on their relationship to the law, as we find the following:
- A first group develops a law; that is, a prior law is developed, followed by a regulation. These regulations are called managers. This involves a partnership with the law, supplementing it but not exceeding its scope.
- A second group, called autonomy regulations, also called legal regulations, are issued without reference to a prior law. Their function is not to develop a previous law but to directly develop a field. They cannot dictate in areas reserved for the law unless there has been a prior delegation.
- A third group, known as regulations required, are regulations contrary to law. These regulations are for exceptional circumstances, even allowing innovation beyond the law. These are difficult to occur and may also be called contra legem. A significant example is Article 21.1.m of the Law Regulating the Basis of Local 1985, which provides that the mayor can take the necessary steps under their responsibility.