Understanding Law Decrees in Spain: Powers and Limitations

Posted on Jan 20, 2025 in Law

Law Decree (LD) in Spain: Article 86.1 of the Spanish Constitution

In circumstances of extraordinary and urgent need, the government will be empowered to enact provisional legislative measures in the form of a Law Decree (LD). These decrees cannot affect the regulation of:

  • The basic institutions of the state
  • Rights, duties, and freedoms of citizens established in Title I of the Constitution
  • The regime of Autonomous Communities (CCAA)
  • General provisions regarding elections

LDs can only regulate ordinary law matters, not Organic Law matters. They require validation by Congress within the next 30 days and can be converted urgently into a bill.

Justification and Scope of LDs

An LD is created when there is an extraordinary and urgent need that merits a wide and flexible interpretation. Whenever there are relevant grounds to justify that normative action is needed, an LD could affect the duty to pay taxes. Initially, it was held that whenever the measure was comprised within the scope of the legality principle. The legality principle intends to draw the dividing line between legislative and executive powers. The legality principle marks those matters that the Constitutional Court (TC) wanted to preserve for the legislative power.

Constitutional Court Rulings on LDs and Taxation

STC 182/1997: Rejects extreme positions. The substantive limit is not identified with the scope of the legality principle but with the affectation to the duty to pay taxes. The constitutional prohibition is breached by any normative intervention or innovation that, due to its qualitative or quantitative entity, alters the position of those obliged to pay taxes according to their ability to pay in the whole of the tax system.

STC 189/2005:

  1. Requirement of an enabling premise to exercise legislative power: Extraordinary and urgent need. The existence of this situation of extraordinary and urgent need must be made explicit and justified sufficiently. It would consist in the need to re-launch the economy to fulfill the requirements of convergence in the third phase of the Economic and Monetary Union through the promotion of job creation in small companies or mobilization of savings, lack of rules, or troublesome economic conditions.
  2. Control by the TC: Requires that the enabling premise be made explicit. The exposition of motives intends to check the adequacy of the measures adopted to the defined situation. Measures should appear adequate to achieve the intended goal.
  3. It cannot affect the duty to pay taxes: The determination regarding whether or not it affects the duty to pay taxes requires:
    • In which specific tax it legislates; nature, structure, and the function it performs in the context of the whole of the tax system, and the degree to which the ability to pay principle is involved.
    • Which elements are altered (essential or not) by this law.
    • The nature and reach of the specific provisions being examined.

Legislative Delegation and LDs: Article 82 of the Spanish Constitution

An LD is a legal rule with the force of law issued by the executive under delegation made by the legislature. This delegation is contained in Article 82 of the Spanish Constitution:

  • The Cortes Generales may delegate to the government the power to issue rules with the force of an act of parliament on specific matters not included in the foregoing sections.
  • Legislative delegation must be granted by means of an act of basic principles when its purpose is to draw up texts in sections, or by an ordinary act when it is a matter of consolidating several legal statutes into one.
  • The delegation must be granted to the government for a concrete matter and with a fixed time limit for its exercise. The delegation shall expire when the government has made use of it through the publication of the corresponding regulation.

Article 85: Government provisions containing delegated legislation shall bear the title of LD.

Types of LDs Resulting from Legislative Delegation

  • Texto Articulado: The Cortes Generales provide regulatory guidelines and principles, and the government creates a legal text accordingly.
  • Texto Refundido: The government systematically puts together the original provisions of an act and its amendments.

Characteristics of LDs

  • Form: Act (Ley)
  • Content: Matters not reserved to Organic Law
  • Execution Term: Must be specified
  • Procedure: Ordinary for general provisions