Constitutional Regulation of the Spanish Decree-Law

Norms with the Force of Law

Laws and Legislative Decrees

In a democratic and interventionist welfare state, the Executive Branch (Faculty) is increasingly able to establish rules. While the law emanating from Parliament is generally assumed to be general in nature and possess the force of law, other norms also achieve this status, such as Legislative Decrees.

The Decree-Law

Constitutional Basis and Provisional Nature

The Decree-Law is regulated in Article 86 of the Constitution. It has a provisional character. Once enacted, it must be approved, endorsed, or repealed within 30 days.

The 30-day period relates to its enactment. The King signs it, the President of the Government endorses it, and it is published in the BOE (Official State Gazette). The use of the Decree-Law is considered a technique of constitutional legality, used within constitutional normality.

The Requirement of Extraordinary and Urgent Necessity

The Decree-Law is only possible when there is an extraordinary and urgent necessity (the enabling requirement). The Constitutional Court states that this necessity is not enough; the Decree-Law must directly respond to that need, establishing a clear link between the measure and the urgency.

Limitations on Decree-Law Regulation

The Decree-Law cannot regulate all matters; otherwise, the technique would be pointless. While it can regulate certain matters normally reserved for ordinary laws, it faces significant limitations:

• It cannot regulate the regime of fundamental rights and public freedoms.
• It is banned from regulating the basic institutions of the State.
• Matters reserved for Organic Law cannot be regulated by Decree-Law.
• Laws concerning the system of autonomous regions cannot be regulated by Decree-Law.
• The General State Budget cannot be regulated by Decree-Law.

Furthermore, legislative delegation (which is the basis for Legislative Decrees) is inconsistent with the Decree-Law.

Validation by the Congress of Deputies

The Government issues the Decree-Law, and within 30 days, the Congress of Deputies must either validate or repeal it. If Congress fails to act within this period, the decree is extinguished.

Even if validated by Congress, the Decree-Law does not fully become an ordinary law; its nature remains unchanged. This distinction has legal consequences, particularly regarding judicial review. The Constitutional Court (TC) can prosecute the Decree-Law, especially if it is found to violate the enabling requirement (extraordinary necessity).

The Decree-Law is a standard issued by the Government that has the force of law but is provisional. Its most important feature is that it possesses the force of law.