Regulations and Decrees: A Deep Dive

Posted on Mar 18, 2025 in Law

Regulatory Powers

Regulatory powers represent the set of dictates issued by the government administration with a rank below the law. They serve as the bottom rung of the regulatory system’s hierarchy and comprise 98% of the provisions integrated into the normative system.

Typologies of Regulations

Regulations can be categorized from different perspectives:

  • According to their scope: Regulations can be ad extra (external) or ad intra (internal/organizational).
  • As they relate to the law:
    • Executive regulations: Supplement or develop the law.
    • Separate regulations: Govern matters not reserved or regulated by law.
    • Autonomous regulations: Excluded from the necessary legislation and address matters reserved to the law.

EC Regulations

EC regulations are a specific set of extensively regulated disciplines with the force of law. The plurality of existing regulations and the plurality of administering government bodies (state, autonomous, provincial, and municipal) lead to the following process for deriving regulations:

  1. Preparation of a draft regulation
  2. Hearing process
  3. Reports and publication in the Official Gazette

EC regulations are subordinate to both the law and the Constitution. This subordination is characterized by:

  1. Hierarchical primacy of the law: The law prevails over regulations, demonstrating both passive and active force.
  2. Areas without statutory reserve: The law can influence any institutional setting.
  3. Explicit reservation of law: The legislature limits the government’s power while maintaining essential collaboration.
  4. Implied general reserve: Prevents separate regulations not explicitly provided for.

Control over Regulations

Control over regulations is exercised through:

  1. Ordinary courts: Control of legality and constitutionality. Disapplication by any court order, and administrative jurisdiction can be challenged directly or indirectly.
  2. Constitutional Court (TC): Reviews constitutional matters through various procedures like habeas corpus and jurisdictional conflicts.

Government Standards with Force of Law

Law Decree (Decree-Law)

Decree-law interrupts the parliamentary legislative monopoly, enabling the executive to dictate legal standards with the force of law. The government creates the standard, and Congress validates it. It is an interim legislative measure used in extraordinary urgency, limited by the EC. Its validity is limited to 30 days from promulgation. The government must approve the decree-law as a body and send it to Congress within 30 days for debate, vote, and validation/repeal. For the decree-law to become part of the Official Journal (OJ), it needs congressional approval. Validation incorporates it into the OJ as stable law, though modifications are possible via a law approving the decree-law. Congress can also repeal a validated decree-law.

Legislative Decree

Legislative decree is a government regulatory action containing rules with the force of law, enacted under delegation granted by Congress. Delegation modes include basic laws containing decisions without specific legislative substance, outlining principles for government development of detailed legal text. Constitutional limits on delegation include formal limits (delegation must be by law and approved by both chambers) and material limits (broader than decree-law, requiring a single recipient, specific and unambiguous terms, and a limited timeframe). The delegation-law relationship conditions the decree’s validity, and the decree must operate within the delegated margins. Parliamentary scrutiny is relevant prior to and during the process, and judicial review by the Constitutional Court assesses intra and ultra vires aspects.