Member State law - Spain
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This page provides information on the Spanish legal system and an overview of the Spanish legal system.
Sources of the Spanish legal system
The sources of Spanish law are defined in Article 1 of the Civil Code:
- The sources of the Spanish legal system are the law, custom and general principles of law.
- Provisions which contradict a higher-ranking provision shall not be valid.
- The custom only applies in the absence of an applicable law, provided that it is not contrary to morality or public order and is proved.
- A legal practice which is not merely an interpretation of a declaration of intent shall be regarded as custom.
- The general principles of law shall apply in the absence of law or custom, without prejudice to their legal nature.
- The legal rules contained in international treaties shall not be applied directly in Spain until they have become part of national law by publication in full in the Official State Gazette.
- Case law will supplement the legal order with the doctrine which the Supreme Court consistently sets out in the interpretation and application of the law, custom and general principles of law.
- Judges and courts, which are subject only to the Constitution and the rule of law, have an imperative duty to resolve cases before them, in accordance with the established system of sources.’
Types of rules
Constitution: The supreme law of the State, to which all public authorities and citizens are subject. Any provision or act contrary to the Constitution is invalid. It is structured in two distinct parts as to its content: the dogmatic part; and (b) the organic part.
International treaties: a written agreement concluded between certain persons governed by international law and governed by that law, which may consist of one or more related legal instruments, the name of which is immaterial. International treaties validly concluded, once they have been formally published in Spain, form part of national legislation.
Statutes of Autonomy: Spanish basic institutional rule of an Autonomous Community, recognised by the Spanish Constitution of 1978 and approved by the Organic Law. It contains at least the name of the Community, the territorial delineation, the name, organisation and seat of the autonomous institutions and the powers assumed. The Statutes of Autonomy are not an expression of sovereignty or a Constitution, since they do not arise from an original constitutional power (which lacked the territories that were set up in the Autonomous Communities), but must be recognised by the State without in any way being able to oppose the principle of autonomy.
- Law: there are several types of laws.
- Organic Law: those relating to the development of fundamental rights and public freedoms, those adopted by the Statutes of Autonomy and the general and electoral regime laid down in the Constitution.
- The ordinary law. Those which regulate matters that are not subject to organic law.
- Legislative Decree: they involve delegation by the Cortes Generales in the Government of the power to lay down rules with the status of a law on specific matters.
- Decree Law: provisional legislative provisions issued by the Government in cases of extraordinary and urgent need and may not affect the law of the basic State institutions, the rights, duties and freedoms of citizens governed by Title I of the Constitution, the regime of the autonomous communities, or the general electoral right. They must be immediately discussed and voted on in full by the Congress of Deputies within 30 days following its promulgation.
- Regulation: general rule of law issued by the executive branch. His rank in the hierarchical order is immediately below the law, and usually develops it.
- Custom: it is defined as “the set of rules arising from the repetition of more or less constant events of uniform acts”. In order for the custom to represent a collective and spontaneous will, it should be constant, constant, uniform and lasting.
- General principles of law: those general normative statements which, without having been incorporated into the legal system by means of formal procedures, are to be understood as forming part of it, because they serve as the basis for other clauses of the law or set out in an abstract way the content of a group of them. They serve to integrate legal loopholes or to interpret rules of law.
- Case law: it is established from two judgments which interpret a rule of the same kind, issued by the Tribunal Supremo (Supreme Court) and, in the case of certain matters of competence limited to the Autonomous Community, the High Courts of the Autonomous Community concerned. If a judge or court departs from the doctrine laid down by the Supreme Court, the judgment is not automatically invalidated but serves as a ground of appeal. However, both the Supreme Court and the High Court of Justice concerned may, on a reasoned basis, depart at any time from its settled case-law by creating new case-law.
Hierarchy of standards
Article 1 (2) of the Spanish Civil Code provides that provisions which contradict other higher-ranking provisions are invalid.] This means that, necessarily, a hierarchy of rules must be established and, to that end, the Spanish Constitution regulates the interrelationship between the different rules and their relationship of hierarchy and competence.
According to the same, the hierarchy of rules in Spanish law is as follows:
- The Constitution.
- International treaties.
- The law in the strict sense: Organic Law, ordinary law and rules with the status of a law (including the Royal Decree-Law and the Royal Legislative Decree), but with different procedures and fields of application.
- Rules issued by the executive with his own hierarchy depending on the body which enacted them (Royal Decree, Ministerial Order, etc.).
In addition to this, a principle of competence is established in respect of the rules emanating from the autonomous communities through their own parliaments (Regional Decree, Regional Orders, etc.).
The judges and courts shall not apply the regulations or any other provisions contrary to the Constitution, to the Act or to the principle of the hierarchy of norms.
Institutions responsible for adopting legal rules.
The institutional framework in Spain is based on the principle of separation of powers conferring legislative powers on the Cortes Generales (Parliament) and the Legislative Assemblies of the Autonomous Communities.
The Government, both the State and each of the Autonomous Communities, has the power to exercise executive power, including regulatory power and sometimes exercises legislative power by the delegation of the Cortes Generales.
Local authorities have not been given legislative power but are regulated primarily through municipal ordinances.
The legislative initiative is the responsibility of the government, the Congress and the Senate, the Assemblies of the Autonomous Communities and in certain cases the popular initiative.
The decision-making process
International treaties: there are three approval mechanisms depending on which type of subject matter is covered by the Treaty.
- In the first place, the conclusion of the Treaties conferring on an organisation or international institution the exercise of powers deriving from the Constitution shall be authorised by means of an Organic Law.
- Second, the government may provide the consent of the State to be bound by treaties or conventions with the prior consent of the Cortes Generales, in the following cases: Treaties of a political nature, treaties or conventions of a military nature, treaties or conventions that affect the territorial integrity of the State or the fundamental rights and duties laid down in Title 1, Treaties or Conventions which entail financial obligations on the part of the Treasury, Treaties or Conventions which entail amending or repealing any law or requiring legislative measures to implement them.
- Finally, in other areas only Congress and the Senate will need to be informed immediately.
Once the international treaties have been validly concluded, once they have been formally published in Spain, they will form part of the national legal system. Its provisions may be repealed, amended or suspended only in the form provided for by the Treaties themselves or in accordance with the general rules of international law. The same procedure as that provided for the approval of the Treaties and international conventions shall be used for denunciation of the Treaties and international conventions.
The draft laws shall be approved by the Council of Ministers, which shall submit them to the Congress, together with a statement of reasons and the background to their decision.
In the case of the Autonomous Communities, the draft law shall be approved by the respective Governing Council and subject, in terms of fact, to the Legislative Assembly of the Autonomous Community concerned.
An ordinary or organic bill passed by the Congress of Deputies, approved by the Congress of Deputies, will immediately take into account the President of the Senate, who will submit it to the Senate. The Senate may, within two months from the date of receipt of the text, invoke its veto or introduce amendments to it. The veto shall be adopted by an absolute majority.
The project may not be submitted to the King for penalty proceedings without the Congress having ratified by an absolute majority, in the case of a veto, the original text, or simple majority, two months after the date of referral, or deciding on amendments, accepting them or not by simple majority. The two months time limit within which the Senate is to block or amend the draft shall be reduced to 20 calendar days in projects declared as urgent by the Government or the Congress of Deputies.
The laws adopted by the Parliament shall be promulgated by the King within 15 days and shall be promulgated immediately and immediately published.
- Organic Law: The adoption, amendment or repeal of the organic laws will require an absolute majority of the Congress, in a final vote on the whole project.
Regulation: Regulations shall be drawn up as follows:
- Initiation shall be carried out by the relevant management centre by drawing up the corresponding draft, accompanied by a report on the need and appropriateness of the project, as well as an economic report containing the estimated cost of the project.
- In addition to the mandatory reports, opinions and endorsements required, all studies and consultations deemed suitable for ensuring the correctness and legality of the text shall be collected throughout the production process. In any case, regulations must be accompanied by a report on the gender impact of the measures set out therein.
- Where the provision affects citizens’ rights and legitimate interests, they shall be heard, for a reasonable period of time and not less than 15 working days. Similarly, and whenever the nature of the provision warrants it, the text shall be presented to the public for information during the period indicated.
- In all cases, draft regulations will have to be notified by the Technical General Secretary, notwithstanding the opinion of the Council of State in instances where this is required by law.
- A prior report of general government will be necessary where the regulatory rule could affect the division of powers between the State and the Autonomous Communities.
- The entry into force of regulations adopted by the Government requires full publication in the Official State Gazette.
The Official State Gazette contains a database containing all the legislation published since 1960: Iberlex.
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Access to this database is free of charge.
Brief description of content
The publications published since 1960 can be found on the website of the Official State Gazette.
It has a search engine for legislation and advertisements, as well as constitutional case law databases since 1980, the State Legal Service (reports and opinions since 1997) and the State Council. It also provides the consolidated version option, incorporating major changes to the rules.Finally, it offers services of legislative alerts, published notices and queries of information and documentation.
This is a machine translated version of the content. The owner of this page accepts no responsibility or liability whatsoever with regard to the quality of this machine translated text.
Last update: 23/10/2019