The abusive use of the royal decree law by the executive in Spain

• Pages: 553-584
• Author: Alejandro Torres Gutiérrez

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THE ABUSIVE USE OF THE ROYAL DECREE LAW

BY THE EXECUTIVE IN SPAIN

ALEJANDRO TORRES GUTIÉRREZ



Public University of Navarre (UPNA). Spain.

SUMMARY: 1. INTRODUCTION. 2. CONSTITUTIONAL ENABLING CON-

DITIONS: EXTRAORDINARY URGENCY AND NECESSITY. 3. THE -

TION BECOMES THE . 4. CLEAR CASES OF MISUSE OF THE DE-

CREE-LAW. 4.1. The so-called omnibus Royal Decree-Laws and the sui

generis Constitutional Court’s doctrine. 4.2. The use of the Decree-Law

on matters that can be regulated by an administrative regulation. 5. THE

NEED OF A PARLIAMENTARY CONTROL. 6. THE AUTONOMOUS COM-

MUNITIES JOIN THE  . 7. CONCLUSIONS. 8. BIBLIOGRAPHY.

1. INTRODUCTION.

The Rule of Law is a notion under construction, a concept in evolution,

even in consolidated western democracies, such as Spain is today, almost half a

century after the entry into force of the Constitution of 1978. One of the main

challenges to the rule of law in contemporary Spain is the abusive participation

of executive power in the legislative process through the instrument of the Royal

Decree-Law (too strong a temptation, which may call into question the fair checks

and balances between the executive and legislative branches).1

1 Previous reflections of the author on this topic were published in: TORRES GUTIÉRREZ,

Alejandro,      , in BAINCZYK,

Magdalena (Ed.), , Institut Zachodni,

Poznan, 2019, pp. 87-107. TORRES GUTIÉRREZ, Alejandro,    

ALEJANDRO TORRES GUTIÉRREZ

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To start, we will provide a short introduction to the Spanish legal system,

where we may find two types of norms with “force of Law”.

1) The first case is formal Law. Technically speaking this is a kind of norm that

was formally passed by both houses of Parliament. Inside this category of formal

Law, we have 2 subtypes of Laws, with identical rank, Organic Law and Ordinary

Law. The difference between them is based on a delimitation of competence,

rather than reasons of hierarchy, because Organic Law materially2 regulates

the main content of fundamental rights, electoral legislation, [regional] statutes

of autonomy and other cases foreseen in the Constitution, and formally,3 an

absolute majority in the Congress is needed for its approval.

2) The second type of norm with force of law, is the Royal Decree-Law, which

is drawn up by the Government and is formally ratified by the Congress within 30

days. The main function of the Decree-Law is to implement necessary, urgent,

and unforeseen legal reforms.4

The abusive use of the instrument of the Decree-Law during General

Franco’s Dictatorship led to deep discussion during the constitutional debates, in

an attempt to formulate a strict constitutional regulation, in a double sense:

a) Limiting the use of this figure to a very specific context. According to

article 86 of the Spanish Constitution,5 it is possible to use the figure

of the Royal Decree-Law only in cases of extraordinary and urgent need.

Just in this context, the Government may issue temporary legislative

provisions which take the form of Royal Decree-Laws.

b) Prohibiting the regulation of a wide range of subjects through this type

of norms. For this reason, this legal instrument does not have an unli-

mited regulatory spectre, because it is not allowed – under article 86.1

of the Constitution – to use this figure for the following crucial mat-

ters: The legal system of the basic state institutions; the rights, duties

   , in     



2 Article 81.1 of the Spanish Constitution.

3 Article 81.2 of the Spanish Constitution.

4 GUTIÉRREZ GUTIÉRREZ, Ignacio,      , Centro de

Estudios Constitucionales, Madrid, 1995, p. 130.

5 The direct democratic precedent of this figure in Spain can be found in article 80 of the

Constitution of the Second Spanish Republic, which foresaw the use of this legislative instrument

only when the Congress was not in session, following a previous proposal and by unanimous

agreement of the Government. It needed the approval of two thirds of the Permanent Deputation

on matters reserved to the competence of the Parliament that, in exceptional cases, require an

urgent decision, or when the defence of the Republic required it. These decrees should have only

a provisional character, and their validity should be limited to the time it takes for the Congress

to resolve the matter. This figure was used during Franco’s Dictatorship as an ordinary way of

legislating.

THE ABUSIVE USE OF THE ROYAL DECREE LAW BY THE EXECUTIVE IN SPAIN

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and freedoms of the citizen contained in the First Part of the Spanish

Constitution, which must be regulated by Organic Law, and the system

of Self-governing Communities [regions], and electoral law (also subject

to specific organic legislation). This limitation should not be understood

as an absolute veto, because this proscription only affects the structu-

ral regulation of a particular institution.6 From a quantitative point

of view, the list of excluded matters is perhaps excessive. The list is so

broad that, if it were to be interpreted in all its literalness, the use of the

Decree-Law would be impossible.7

The Spanish Constitutional Court has coined the so-called ‘substantial

modification’ doctrine, according to which a Decree-Law is not prohibited from

any modification that affects tax regulations, for instance, but only those that,

due to their qualitative or quantitative nature, significantly alter the position

of the person liable to contribute according to their economic capacity within

the entire tax system. To do so, it is necessary to take into account, in each case,

which specific tax the decree-law affects – stating its nature, structure and the

function it performs within the entire tax system, as well as the degree or extent

to which the principle of economic capacity intervenes –, which elements of it

(essential or not) are altered by this exceptional method of normative production

and, finally, the nature and scope of the specific regulation in question (STC

73/2017 of 8 June).8

From a formal perspective, Royal Decree-Laws must be immediately

submitted for debate and vote by the Parliament, which must be called for this

purpose if it is not already in session, within 30 days of their promulgation.9

In the absence of an express pronouncement by Congress, it would

have to be understood that such silence would be negative, because tacit

favourable pronouncement is not provided for in the Constitution (only an

express pronouncement is provided), and because the Government regulation

is provisional in nature, and its definitive conversion into a Law requires the

6 CARMONA CONTRERAS, Ana, “El Decreto-Ley y sus controles: Jurisprudencia

constitucional y fiscalización parlamentaria”, in       

      , FAYA

BARRIOS, Antonio Luis (Coord.), Instituto Andaluz de Administración Pública, Seville, 2020, p. 362.

7 CARMONA CONTRERAS, Ana,  , Centro de

Estudios Políticos y Constitucionales, Madrid, 1997, p. 315.

8 ABELLÁN MATESANZ, Isabel María, “Límites de los Decretos-Leyes. La “extraordinaria

y urgente necesidad” como presupuesto habilitante. Legitimidad del Decreto-Ley para regular

una materia Reglamentaria. Modificación de normas tributarias por Decreto-Ley. Comentario a la

Sentencia del Tribunal Constitucional 14/2020, de 28 de enero. Recurso de Inconstitucionalidad

núm. 2208-2019. (BOE núm. 52, de 29 de febrero de 2020)”, in Revista de las Cortes Generales, no.

109, 2020, pp. 606-607.

9 Article 81.2 of the Spanish Constitution.