Real Decreto Ley (Spain)

In the Spanish legal system, a Real Decreto-ley (Royal Decree of Law) is a legal norm issued by the (central) government with legal status and force.

The basis is Article 86 of the Spanish Constitution , according to which the government can issue temporary legal regulations in the form of a Real Decreto-ley "in the event of exceptional and urgent need" .

As with an ordinance in German law, it is a law in the material sense . However, legal ordinances in German law are in the hierarchy of norms under the laws passed by parliament ( laws in the formal sense ), while Reales Decretos-leyes in Spain have the same rank as laws passed by parliament.

Procedure

Decree

Reales Decretos-leyes are adopted by the government, made out by the king, countersigned by the prime minister and published in the Boletín Oficial del Estado , which means they come into force.

Referral to Parliament

Reales Decretos-leyes adopted by the government must be forwarded to the Chamber of Deputies immediately . This has to vote on the unchanged text within 30 days of the publication of the Real Decree-ley .

If the Real Decreto-ley is approved by a simple majority, this decision will be published in the Boletín Oficial del Estado and the "provisional" regulation will become a "final" one. However, the legal norm retains the designation Real Decreto-ley .

If the Real Decreto-ley is not confirmed by the House of Representatives, this decision will also be published in the Boletín Oficial del Estado and the Real Decreto-ley is therefore repealed with immediate effect (but not retrospectively).

If the Real Decree-ley is confirmed, the House of Representatives can also decide to treat its text as a government bill in the legislative process (i.e. with the participation of the Senate ). In this case, the Real Decreto-ley remains in force and, after the legislative process has been completed, is approved by the Parliament u. U. Law ( Ley ) passed with amendments replaced.

Requirements and limits

requirement

According to Article 86 of the Constitution, a requirement for regulation by the Real Decreto-ley is the presence of a case of "exceptional and urgent need". According to the case law of the Constitutional Court, an emergency-like situation does not have to exist for this, but a so-called "relative necessity" is sufficient with regard to concrete situations that require immediate action in a shorter period of time than a parliamentary legislative procedure due to the difficult to predict further development would take. It is sufficient here if the operation of a legislative procedure would call into question the effectiveness of the intended regulation. In assessing the question of whether the requirements of Article 86 are met, the government (and, in the subsequent discussion, the House of Representatives) has a broader political discretion; the review of the exercise of this discretion by the Constitutional Court is primarily limited to whether it was exercised abusively or arbitrarily.

Limits

Article 86 of the Constitution names matters which may not be "affected" by a regulation by the Real Decreto-ley : the order of the basic institutions of the state, the fundamental rights, obligations and freedoms regulated in Title I of the constitution, the right of the autonomous Communities and the right to vote. This concept of being affected is also interpreted narrowly by the Constitutional Court. For example, it is not enough for a fundamental right to be affected in any way, since otherwise regulations by Real Decree-ley would be as good as impossible and this instrument expressly provided for by the constitution would be largely devalued.

In addition to the matters not expressly named in Article 86, there are other matters that may not be regulated by the Real Decree-ley due to other constitutional provisions : These are, for example, all matters to which the reservation of the organic law applies, the approval of international treaties or the adoption of the household .

Control by the Constitutional Court

Since Reales Decretos-leyes are legal provisions, they can be the subject of a constitutional abstract judicial review procedure . If a court has doubts about the constitutionality of a Real Decreto-ley , it has to submit the question to the constitutional court for a decision (concrete judicial review), since only this court is called upon to determine the unconstitutionality of legal provisions with the rank of law.

As part of the judicial review, the court also checks whether the requirements of Article 86 were met and its limits complied with. If this is not the case, this - even if the Real Decree-ley has been confirmed by the House of Representatives - can lead to its rejection as unconstitutional.

Practical meaning

Also because of the generous yardstick that the Constitutional Court applies when reviewing the requirements and limits of Article 86 of the Constitution, the instrument of the Real Decreto-ley is used relatively frequently by the Spanish government in constitutional reality .

Since 2000, the following number of state laws (including organic laws) and Reales Decretos-leyes have been published:

year	Laws / Organic Laws	Reales Decretos-leyes
2000	23	10
2001	32	16
2002	63	10
2003	82	7th
2004	6th	11
2005	36	16
2006	52	13
2007	72	11
2008	6th	10
2009	32	14th
2010	53	14th
2011	50	20th
2012	25th	29
2013	36	17th
2014	44	17th
2015	64	12
2016	2	7th
2017	13	21st
2018	16	28
2019	8th	18th

Since the constitution of 1978 came into force, there have only been four cases in which the House of Representatives has not confirmed a Real Decree-ley and has thus repealed it.

Decretos-leyes of the Autonomous Communities

Corresponding legal acts of the Governments of the Autonomous Communities (Regions) are not executed by the King and are called Decreto - ley .

Difference to Real Decreto and Real Decreto Legislativo

The Spanish legal system has two other instruments with similar names: the Real Decreto and the Real Decreto Legislativo .

The Royal Decree is different from the Real Decree-Law in the hierarchy below the law.

The Real Decreto Legislativo , like the Real Decreto-ley, has legal force and status. However, in the case of the Real Decrteo-ley, the government acts of its own accord , so it draws the legislation to issue a provisional regulation. With the Real Decreto Legislativo, on the other hand, the government is empowered by law to enact it, i.e. in this case the parliament delegates the legislation to the government.

Individual evidence

1. ^ Judgment of the Constitutional Court STC 6/1983. In: Website of the Constitutional Court. February 4, 1983, Retrieved April 23, 2020 (Spanish). 
2. ↑ judgment of the Constitutional Court STC 111/1983. In: website of the constitutional court. December 2, 1983, Retrieved April 23, 2020 (Spanish). 
3. ↑ judgment of the Constitutional Court STC 29/1982. In: Website of the Constitutional Court. May 31, 1982, Retrieved April 23, 2020 (Spanish). 
4. ↑ judgment of the Constitutional Court STC 111/1983. In: Website of the Constitutional Court. December 2, 1983, Retrieved April 23, 2020 (Spanish). 
5. ↑ judgment of the Constitutional Court STC 60/1986. In: Website of the Constitutional Court. May 20, 1986, Retrieved April 23, 2020 (Spanish).