Constitutional Framework for Delegated Legislation (Article 82 EC)

1. Delegated Legislation: Concept (Article 82 EC)

The concept of delegated legislation is defined by Article 82 of the Constitution (EC):

1. The Parliament may delegate to the Government the power to issue rules with the force of law on specific matters not included in the above article.
2. Legislative delegation must be granted by a Basic Law when the purpose is drafting articulated texts, or by an Ordinary Law in the case of consolidating several legal texts into one.
3. Legislative delegation must be granted by the Parliament expressly for a specific matter, and for a fixed time limit for its exercise. The delegation shall expire upon the Government's publication of the appropriate regulations. It shall not be construed as having been granted implicitly or for an indeterminate period. Nor shall sub-delegation to authorities other than the Government itself be permitted.
4. The Basic Laws precisely define the purpose and scope of legislative delegation and the principles and criteria that govern its exercise.
5. Authorization for consolidating legal texts shall determine the scope referred to the normative content of the delegation, specifying if it is restricted to the mere formulation of a single text or whether it includes regulating, clarifying, and harmonizing the legal texts that must be consolidated.
6. The acts of delegation may establish, in each case, additional control mechanisms, without prejudice to the jurisdiction of the courts.

Types of Legislative Delegation

• Articulated Texts: This involves creating a new work of legislation based on the principles established in the Basic Law.
• Consolidated Texts: This implies, in most cases, a creative work, the scope of which is derived from the binding force of the text subject to consolidation.

Enabling Standards

• Basic Laws: Required for drafting articulated texts (full articles).
• Ordinary Law of Delegation: Required for consolidating legal texts.

Restrictions on Delegation

Material Restrictions (Articles 81 and 83 EC)

Article 81 EC: Delegation cannot affect matters reserved for Organic Law, which include:

• The development of Fundamental Rights and Public Freedoms (DDFF LLPP).
• Statutes of Autonomy.
• The General Electoral System.
• Other matters envisaged by the Constitution.

Article 83 EC: In no case may the Basic Laws:

1. Authorize the amendment of the Basic Law itself.
2. Grant power to enact retroactive regulations.

Temporary Restrictions

The delegation must determine exactly the deadline for its exercise, which can never be indefinite.

Content Restrictions

The delegation must specifically describe the matter delegated to the Government. General or vague delegations are not possible, nor can delegation be obtained implicitly.

Modification and Approval Process

Modification

The Government can oppose the processing of legislative delegation. In this sense, a bill may be presented to amend the enabling law.

Approval

The preliminary opinion of the State Council is required. This opinion is not binding and must be delivered by the full Board prior to the approval of the Decree by the Council of Ministers.

Control and Exercise of Legislative Decrees

Control Mechanisms

• Control of the Constitutional Court: The Constitutional Court (CT) controls the constitutionality of laws and regulations having the force of law, and therefore also of Legislative Decrees.
• Control of the Ordinary Courts: The ordinary courts can control the excesses of the Legislative Decree (i.e., when the Government exceeds the scope of the delegation).
• Parliamentary Control: The Constitution merely provides for the possibility that the legislator may establish additional control mechanisms in the enabling law itself. These formulas may be prior or subsequent to the promulgation of the Decree.

Exercise

Non-Delegability

The Constitution precludes the possibility of sub-delegation to authorities different from the Government itself.

Form: Royal Decree

The resulting regulation takes the form of a Royal Decree. This appellation is given because the King is responsible for issuing these decrees.