Decree Law in Spain: Understanding its Use and Limits
Decree Law (Article 86 of the Spanish Constitution)
A decree law is a legal rule with the force of law that the Government dictates in cases of extraordinary and urgent necessity. Both elements must be present, which are referred to by legal doctrine as the “enabling event.”
The Constitutional Court refrains from establishing when there is “extraordinary necessity,” and this function is left to Parliament. However, the Court does determine if the subject matter should be regulated urgently, and if it should be regulated within the deadline that Parliament may set for the decree law.
If a decree law is issued and approved but lacks the enabling event, it is null and void.
The power to dictate a decree law is extraordinary and is granted by the Constitution. The decree law is a legislative provision that is fully effective provisionally and positively (creates rights and obligations). However, regarding its refusal, there are two theories:
- The first is that it repeals the rules contrary to the decree law.
- The second, much more useful in practice, believes that it repeals the rules but suspends their implementation, in case the decree law is declared unconstitutional.
Limitations on Decree Law
The decree law cannot regulate certain matters:
- It may not affect the ordering of basic state institutions.
- Rights, freedoms, and duties of Title I of the Spanish Constitution can only be developed by Organic Law. The decree law can address specifics but cannot develop and regulate the matter in general.
- The system of autonomous communities.
- The general electoral law.
Within a month, the decree must be submitted to Congress to validate it or not (accept or reject it). Congress must debate and vote on it. If Members are on vacation, an extraordinary meeting must be held. When there are no deputies because they are waiting to be elected, the Permanent Deputation will undertake such validation. The debate will accept all or reject all; amendments are not permitted.
Validation of the Decree Law
Congress decides whether the decree law becomes a final law or is rejected.
It examines whether there is an enabling event, whether it has not encroached on reserved matters, and whether the regulation is appropriate.
If validated, the decree becomes a final rule with the force of law, repealing all provisions of equal or lower rank that conflict with it.
If not validated, it legally ceases to exist.
Conversion of the Decree Law
Conversion is the change in the nature of the decree law, transforming it into a law.
Article 86.3 provides that within 30 days of the promulgation of the decree, it may be processed as a bill. The name does not seem appropriate (bills are presented by the Government), but it serves to prioritize. The processing is done on the basis of the decree, which has been validated, so amendments to the whole alternative text are not permitted. However, partial amendments are allowed, and the debate begins in committee.
The Constitutional Court has ruled that the law approved by the Courts does not simply replace the decree law in time (thereby replacing it), but the nature of the law retroactively dates back to the date of validation.
This retroactive character serves to correct possible defects in the decree law (such as lacking an enabling event or governing reserved matters). The law is ordinary, so if the decree entered into a field reserved for Organic Law, it continues to be unconstitutional.