Spanish Legislative Procedures and International Treaties
Spanish Legislative Measures with the Force of Law
Legislative Decrees
The Spanish Constitution outlines two types of governmental actions with the force of law, similar to legislative acts of general courts. The first is the Legislative Decree, where general courts enable the government to create provisions with the force of law. Key features of legislative delegation include:
- Absolute Limit: Matters reserved to organic law cannot be delegated.
- Subject Matter: Covers the full scope of law enabled by the government.
- Authorization: Requires a basic law for drafting texts in sections or an ordinary law for consolidating texts.
- Specificity: Delegation laws must be specific, not implied, and limited to a particular subject and timeframe.
- Guidelines: Basic laws must define the scope, principles, and criteria for delegation.
- Consolidation: Ordinary laws specify the scope of consolidation, including clarification of texts.
- Restrictions: Basic laws cannot be modified through delegation, nor can rules be applied retroactively.
- Additional Control: Basic laws may provide for additional oversight.
Control mechanisms for legislative decrees fall into three categories:
- Ordinary courts
- Constitutional Court (TC)
- Parliamentary houses
The TC’s jurisdiction over legislative decrees is outlined in the Constitution. Congress has established a control procedure, requiring the government to communicate the decree’s text to Congress. If no objections arise within a month, the delegation is considered valid. Objections are referred to a Congressional committee for review. The delegation law outlines the legal effects of this control.
The government’s power to issue rules with the force of law is subject to strict formal requirements. It’s important to distinguish between a law and a decree-law. The TC has highlighted the following:
- A provision that might be constitutional if enacted by courts could be unconstitutional if irregularly enacted by the government through a legislative decree.
- Constitutional review of a legislative decree involves assessing both formal requirements and content compliance with the Constitution.
Decree-Laws
A Decree-Law is a rule with the force of law issued by the government in cases of extraordinary and urgent need. It differs from a legislative decree in that the initiative comes from the government. Three key aspects regulate decree-laws:
- Necessity: Issued only for extraordinary and urgent situations.
- Subject Matter Limitations: Cannot affect core state institutions, fundamental rights, regional regimes, or general electoral law.
- Parliamentary Review: Submitted to Congress for debate and a vote on ratification or repeal within 30 days of enactment.
The government assesses urgency and necessity, subject to political control by Congress and legal control by the TC. Material limitations prevent decree-laws from affecting fundamental rights or the distribution of powers between the state and regions. Parliamentary review allows for either validation or repeal of the decree-law.
International Treaties
International treaties incorporate international law into domestic law. There are two types:
- Requiring Parliamentary Authorization: Treaties dealing with matters outlined in Article 94.1 of the Constitution require prior authorization from general courts and must be officially published.
- Authorized by the Government: Treaties not covered by Article 94.1 are authorized by the government, which must report to the parliamentary chambers.
Treaties requiring parliamentary authorization follow a specific procedure, starting in Congress. The government requests permission via a Council of Ministers decree. A majority in each chamber is required. Disagreements between chambers are resolved by a joint committee. The principle of parallelism of forms dictates that treaty denunciation follows the same procedure as approval. Only treaties requiring parliamentary authorization can amend or repeal existing laws.