Regulatory Powers and Their Relationship with the Law

Posted on Feb 24, 2025 in Law

Nature and Basis of Regulatory Powers

Regulatory powers are characterized by the following:

  • There is no reservation for a regulation in areas where our Basic Law does not explicitly exclude direct legal intervention.
  • Our Constitution does not contain a general reserve of Law, although there are partial reserves that impede the exercise of regulatory power in the reserved area without the prior existence of a regulation having the force of law.
  • The range of premium on the Law of the Administration’s regulatory products. This is in the EC (articles 2, 27.10, 36, 97, 137, 152).

The Rules

  1. Express a content that can take multiple forms of manifestation (Decree, Order, etc.).
  2. Express a certain position in the system of legal sources in relation to the law.
  3. Come from a public authority. Importantly, hierarchical subordination to law.

Relationship Between Law and Decree Regulations

  1. Executive Regulations: Dictated under the influence of a prior Act. They collaborate with the law in regulating matters reserved or occupied by the legislature without a constitutional reservation required for a legal status. They occupy a formal reservation with a cyclical value because only what is set in the Constitution as an Act can legitimately be contradicted by another subsequent Law. All regulations issued by public administrations must be included, and it is noteworthy that the TC acknowledged the existence of *blank criminal laws*.
  2. Autonomous or Independent Regulations: Impact areas where there is neither a constitutional reserve Act nor a prior Act. They are issued regardless of any previous Act.
  3. Regulations in Need: Are enacted in situations of need. A distinction must be made between those that are legally provided and therefore are not contrary to law, and those that arise without prior legal authorization. These are exceptional rules that provisionally alter the hierarchical priority of the sources of law. Their effect ceases when the extraordinary circumstances disappear, without express repeal.

Classification by Content

  • Internal Regulations: Found within each administration. These rules are self-reflexive. For a long time, their nature as rules of law was denied due to the absence of the element of otherness. This made Administration officials prisoners and maintained a special relationship with the Administration, one of special submission and without the authority to issue internal guarantees. The existence of internal regulations is implicitly recognized in our legal system for all public authorities.
  • External Regulations: In contrast to internal regulations, these possess the element of otherness. External regulatory power requires assigning a specific subject area in which it can be exercised (competence).

Classification by Author

Depending on the administration that dictates them:

  • Autonomic Regulations: Partly regulated by Law 30/92 LRJAP, and thus preserve the government administrative laws passed by each of the Autonomous Communities.
  • Local Regulations: Regulated mainly by the local government framework law 7/85 of April 2 and the revised text RDL 781/86 of April 18.
  • Institutional Regulations: Specific rules governing these institutional administrations.

Classification by Relationship with the Law

  • Executive Regulations: Require a law to be enacted after the regulation, and the execution of this law is developed. They cannot contradict or undermine the provisions of the law they develop and execute. If it is a state law, certain reports are required to ensure that the implementing regulation is faithful and respects the content that the law develops. They need not contain any innovative provisions. Their aim is to add a plus to the legislation they develop.
  • Independent Regulations: Unlike executive regulations, these are characterized by the absence of a prior law to develop. They are the first regulations regulating a social sector where there is no prior legislative rule by law. They are subject to limitations deriving either from the laws, the constitution, general principles of law, or other regulations of higher hierarchy.
  • Regulations of Need: These are exceptional regulations given in emergency situations. For example, local government basic laws.
  • Self-Regulations: Do not exist in our legal system. There are no regulations establishing a reserve of materials for regulation. Only those materials can be developed by regulation.