Catalan Regulation Creation and Enforcement

Posted on Nov 28, 2024 in Law & Jurisprudence

Regulation Creation Procedures

The procedures for making a regulation in Catalonia are as follows:

  • Statement of Reasons: A document outlining the reasons for issuing the regulation. These reasons are binding and cannot be changed during the process.
  • Validity Table: A table listing the regulations repealed by the new regulation, ensuring legal certainty.
  • Legal Opinion: An opinion from the Council or the Legal Advisory Commission of Catalonia on the legality of the draft regulation. This opinion, while not mandatory, must be considered, and any disagreement noted.
  • Public Consultation: Consultation with representative bodies of those affected by the regulation (trade unions, professional associations, chambers of commerce, etc.) and the public (allowing for allegations). This is mandatory under Article 24 of Law 9/97, Article 85 of Law 7/85, and Article 13/89 LORSAE.
  • Approval and Publication: The regulation must be published in the Official Gazette (DOG, or BOP for local regulations) and will come into force 20 days after publication unless specified otherwise.

Illegal Regulation

By the Issuing Body

  • Derogation: The body that issued the regulation can repeal it if deemed illegal.
  • Revision: Official review of the regulation, as per Article 102 of Law 30/92.

By the Courts

  • Civil, Criminal, or Employment Courts: As per Article 6 of the Organic Law of the Judiciary Act 6/85, courts can deem regulations illegal or unconstitutional.
  • Direct Recourse: As per Article 30 of the Administrative Litigation Law 29/98, a recipient can appeal the regulation within two months of publication. A successful appeal has effects erga omnes (towards everyone).
  • Indirect Question of Illegality: As per Article 129 of Act 29/98, the legality of a regulation can be challenged when applied in a particular case.

Before the Constitutional Court

  • Appeal for Violation of Fundamental Rights: If a regulation violates fundamental rights (Articles 14 to 29 of the Constitution), an appeal can be made to the Constitutional Court after exhausting other remedies and within two months of the last sentence.
  • Conflict of Jurisdiction: If a regulation violates the division of powers between the state and autonomous communities, an appeal can be made based on the Law of the Autonomous Communities and Article 149 of the Constitution.
  • Prime Minister’s Appeal: As per Article 161.2 of the Constitution, the Prime Minister can challenge regulations that violate the Constitution.

Limits of Discretionary Powers

When exercising discretionary powers, the administration must respect certain limits:

  • Competence: The acting body must have the attributed competence (Article 12 of Law 30/92). For example, an Urban Plan must be adopted by the responsible body, not just the mayor.
  • Procedure: The administration must follow the established procedures. Failure to do so renders the decision arbitrary and void.
  • General Principles of Law and Motivation: Decisions must be fair, proportional, consistent, and logical. The motivation behind the decision must be clear. For example, decisions about a General Plan must be rational and not arbitrary.
  • Misuse of Power: The administration must act in the public interest, not for partisan or private gain. Misuse of power renders decisions void. For example, favoring a mayor’s land for development without justification is a misuse of power.

Characteristics of Administrative Acts

An administrative act has the following characteristics:

  • Expression of Will: Final decisions or actions by public authorities that conclude an administrative proceeding (e.g., traffic passage, closure of premises, denial of a scholarship, land expropriation; Art. 107 L 30/92).
  • Manifestation of an Administrative Trial: Opinions, reports, or resolutions of administrative appeals issued by the administration. These can be:
    • Advisory reports from advisory bodies.
    • Reports from the administration itself when reviewing its performance through an appeal.
  • Manifestation of Knowledge: Issuing licenses, certifications, or government statements of data (e.g., issuing licenses or certifications).
  • Manifestation of Desire: Motions (Art. 79 L 30/92) where the administration proposes a course of action before deciding on a topic.
  • Public Administration Action: Acts carried out by any public state or local administration (Arts. 1 and 2 L 30/92 and Arts. 1 and 2 of the Administrative Litigation Jurisdiction L 29/98).

Notification Requirements

For an administrative act to take effect, it must be properly notified (Articles 58 and 59 of L 30/92). The administration bears the burden of correct notification, which includes both the content and the means of notification. The content should include:

  • The full text of the administrative act.
  • Available resources against it.
  • The authority to which it should be presented.
  • Deadlines and rejection conditions.
  • Indication of whether the act is definitive.

If these requirements are not met, the act has no effect. If the administration makes a mistake regarding the timing, this cannot harm the recipient. For mass notifications, the administration must prove receipt:

  • Certified letter with receipt notification.
  • Two attempts at notification, followed by notification in the BOP, DOGC, or BOE.
  • Email notification (Art. 59.3 L 30/92) requires proof of receipt by the addressee.
  • Fax is not considered a secure system.
  • Facsimile is valid but more expensive.
  • Telegraph.