Sources of European Union Law and Spanish Constitution Reform
Sources of Primary European Union Law
Regulations
General legal provisions that are binding and directly applicable in all Member States without needing national implementation laws.
Features:
- General Scope: Regulations apply to abstract categories of persons, not specific, identifiable recipients.
- Binding: They are mandatory in their entirety across the EU.
- Direct Applicability: They automatically become part of national law without intervention by Member States.
- They function similarly to laws within national legal systems.
Directives
Legal acts setting out goals that all EU Member States must achieve. However, individual countries can devise their own laws on how to reach these goals.
Features:
- Binding as to the Result: Impose an obligation on Member States to achieve a specific result.
- Not Directly Applicable (Typically): Require transposition into national law via a national legislative act.
- Purpose: Harmonization: Member States must choose the form and means to ensure the directive’s full effectiveness.
- Potential Direct Effect: The European Court of Justice has stated that directives can, under certain conditions, have direct effect, meaning they can be invoked by individuals and applied by national courts, especially if a Member State fails to transpose the directive correctly or on time.
Decisions
Legal acts binding only on those to whom they are addressed (e.g., an EU country or an individual company). They are directly applicable.
Features:
- Specific Addressees: Binding only on the specified recipients (individuals, companies, or Member States) who must be notified.
- Direct Effect: The Court has recognized their potential for direct effect.
Recommendations and Opinions
Non-binding instruments allowing EU institutions to make their views known and suggest a line of action without imposing legal obligations.
Features:
- Not Legally Binding.
- Difference:
- Recommendations: Suggest a course of action or invite recipients to act in a certain way.
- Opinions: Express a viewpoint or assessment on a particular issue.
- Often used as preliminary mechanisms before adopting binding legislation like directives or decisions.
Sui Generis Acts
A category including internal acts of the Union and acts stemming from institutional practice, not fitting neatly into the other categories.
Sources of Complementary European Union Law
Sources from International Law
- Decisions of Representatives of Member States: Agreements concluded between the Member States themselves, often meeting within the Council framework but distinct from formal Council legislative acts.
- International Agreements with Third Countries: Agreements between the EU and non-EU countries or international organizations. These are binding on the EU institutions and Member States. Their legal effect is subordinate to primary EU law but superior to secondary EU legislation (Regulations, Directives, Decisions).
Other Sources of Law
- Case Law (Jurisprudence): Decisions of the Court of Justice of the European Union (CJEU). The CJEU holds the ultimate authority for interpreting EU law, and its rulings significantly shape the law.
- General Principles of Law: Unwritten sources of law derived from the constitutional traditions common to the Member States, international law, or the fundamental principles of the EU legal order itself. Frequently cited and applied by the CJEU.
- Customary Law: Practices followed consistently and accepted as law, although less prominent in the EU context compared to written sources.
The Reform of the Spanish Constitution
Constitutional Reform Models
- Constitutional reform procedures reflect the constitution’s nature (rigid vs. flexible).
- Distinction between simple vs. reinforced (aggravated) reform procedures.
Reform Procedures in the Spanish Constitution
Ordinary Reform (Art. 167 Spanish Constitution – SC)
- “Constitutional reform proposals must be approved by a three-fifths majority in each Chamber (Congress and Senate). If agreement isn’t reached between them, an attempt shall be made to obtain it by setting up a joint committee of Deputies and Senators, which shall submit a text to be voted on by the Congress and the Senate.”
- “If approval is not obtained by means of the procedure outlined in the foregoing paragraph, and provided that the text has obtained the favourable vote of the absolute majority of the Senate, the Congress may pass the reform by a two-thirds majority.”
- “Once the reform has been passed by the Cortes Generales, it shall be submitted to ratification by referendum, if so requested by one tenth of the members of either Chamber within fifteen days after its passage.”
Aggravated Reform (Art. 168 SC)
- “When a total revision of the Constitution is proposed, or a partial revision thereof, affecting the Preliminary Title, Chapter II, Section 1 of Title I (Fundamental Rights and Public Liberties), or Title II (The Crown), the principle of the proposed revision shall be approved by a two-thirds majority of the members of each Chamber, and the Cortes Generales shall immediately be dissolved.”
- “The Chambers elected must ratify the decision and proceed to examine the new constitutional text, which must be approved by a two-thirds majority of the members of both Chambers.”
- “Once the reform has been passed by the Cortes Generales, it shall be submitted to ratification by mandatory referendum.”
Limits on Constitutional Reform
- Explicit Limits:
- Temporal Limits (Art. 169 SC): Constitutional reform may not be initiated in time of war or during any of the states provided for in Article 116 (state of alarm, state of emergency, state of siege).
- Implicit Material Limits: While not explicitly forbidden, certain core principles, such as the indissoluble unity of the Spanish Nation (Art. 2) or the essence of fundamental rights (Title I), are generally considered unamendable or would necessitate the aggravated procedure under Art. 168 due to their foundational nature.