Legal Framework and Limits of the Decree Law

Legal Framework of the Decree Law

This enabling budget is always applicable, so a maximalist view leads to the normal use of the decree law.

The framework of the decree law should be set by the government, which is the subject that dictates the norm to be assessed according to criteria of political prudence when the country's governance requires urgent action.

Scope and Congressional Control

• It should be excluded from certain areas and is considered an interim standard; once passed, Congress intervenes.
• Political control by Congress and the Constitutional Court (TC) is legal.
• The use of the decree law regarding its application is very wide for fear of leaving it as a purely residual instrument. It is a very useful mechanism in the hands of governments to carry out rapid, effective policies with immediate effect.
• There comes a tipping point toward more intensive use of the decree, and efforts are now being made to restrict and control the enabling budget for rapid action.

Material Limits under Article 86.1 CE

Regarding material limits, the decree law cannot influence or regulate certain matters. The Spanish Constitution (CE) excludes certain matters from being regulated by Decree Law under Article 86.1 CE. Anything not reserved for Organic Laws can be regulated by decree.

• The decree law cannot affect the rights and freedoms of citizens under Title I; the law prohibits ordering anything within Title I.
• It always affects Fundamental Rights, and the decree cannot interpret the verb "affect" as "influence." What it cannot do is regulate Fundamental Rights, as they can only be regulated by Organic Laws.
• It cannot affect the basic institutions of the State or the provinces.
• It cannot affect the regime of the Autonomous Communities (CCAA) or their Statutes of Autonomy.
• It cannot affect the general electoral law, rules for the choice of parties, or associations.

In cases not excluded, the decree law may affect other subjects or areas.

Provisional Nature and Validation Process

The decree law has provisional force of law and requires a subsequent step: once approved, it must be ratified by Parliament. While the government acts and takes action, Congress must control what the government has done through the parliamentary process of validation.

The decree law is approved by the Government, published, and becomes effective immediately. It does not make sense to undergo a standard vacatio legis period as it is urgent; it enters into force immediately, but this effect is temporary unless validated by Parliament.

The submission term is 30 days. The government must send the decree law to Congress within a maximum of 30 days for Congress to exercise political control over the decree law issued by the government.