Regulatory Power in Spain: A Comprehensive Guide
Regulatory Powers in Spain
Definition
Regulatory power is the ability of the executive branch to issue general rules below the rank of law. In Spain, the legal system is based on the principle of universal law, meaning that regulations cannot exist independently of the law. They serve as a means of developing and supplementing the law, but they cannot override or modify it.
Concept of Regulation
A regulation is a general legal provision that is subordinate to the law and issued by the Administration. Regulations are integrated into the legal system, unlike administrative acts, which are specific applications of the law and are not intended to be permanent. The material scope of a regulation depends on the law it develops and is not predefined.
Exercise and Control of Regulatory Power
Conditions and Procedures
The exercise of regulatory power is subject to specific conditions and procedures for approval, as well as judicial review. The legality of regulations can be challenged in ordinary courts or, in cases of unconstitutionality, before the Constitutional Court (TC).
Challenges to Regulations
Several techniques can be used to challenge an illegal regulation:
- Way of emergency: Requesting the court to consider the regulation’s validity during ongoing proceedings.
- Contentious-administrative: This can be done through:
- Direct appeal: Seeking the annulment of the regulation.
- Indirect action: Challenging an administrative act based on the illegality of the underlying regulation.
Jurisprudence of the Courts
Constitutional Jurisprudence
Constitutional jurisprudence refers to the doctrine established by the TC in its decisions. This doctrine is a source of constitutional law and is binding on other public authorities, including ordinary courts.
Ordinary Law Jurisprudence
Unlike in Anglo-Saxon countries, ordinary law jurisprudence is not a source of law in Spain. Courts are bound by the rule of law and their function is to apply existing rules, not create new ones. However, the doctrine established by the Supreme Court (TS) through repeated judgments has a complementary value in the legal system.
European Jurisprudence
Due to Spain’s integration into the European Union, the jurisprudence of the European Court of Human Rights and the Court of Justice of the EU also plays a role in the Spanish legal system.
Classes of Regulations
Based on Relationship with Law
- Separate Regulations: These regulate matters independently of existing law. In Spain, this category is limited to administrative or organic regulations that govern the internal functioning of the administration.
- Executive Regulations: These develop and refine the content of a law, as authorized by the law itself.
Based on Origin
- State Regulations: These include Royal Decrees approved by the Prime Minister or the Council of Ministers, as well as Ministerial Orders and regulations issued by lower administrative authorities.
- Autonomic Regulations: These are issued by the Autonomous Communities and include Decrees of the Council of Government, Orders of the Directors of Government, and resolutions of lower authorities.
- Local Regulations: These include:
- Professional Regulations: Governing the self-organization of local entities.
- Local Ordinances: Standards with external efficiency issued by the Plenum of the Institution.
- Sides: Issued by the Mayor on matters within their competence.
- Institutional Regulations: Issued by institutional and corporate entities subject to the regulations of territorial authorities.