Legislative Delegation: Framework Laws and Constitutional Control

Classes of Legislative Delegation

Depending on the desired outcome, authorization must be granted to create an articulated text. A Legislative Decree must be based on a Framework Law, which establishes the fundamental criteria that the government must follow.

Constraints of the Framework Law

• The Framework Law cannot authorize the amendment of the act itself (this constitutes fraud).
• It cannot authorize the creation of retroactive rules.

The Framework Law sets the scope of the Government's delegated authority.

Delegation for Consolidated Texts

Delegation may authorize the creation of a consolidated text from several scattered texts, linking and merging them. This involves instructing the Government to compile existing legislation into a single body of law.

Control Mechanisms for Legislative Decrees

Parliamentary Oversight

The Law of Delegation establishes the formulas for Parliamentary control. These specific forms of control are determined by the Parliament in each case.

Constitutional Court (TC) Control

A statute with the force of law, such as a Legislative Decree, is subject to judicial review and can be challenged before the Constitutional Court (TC).

Control of Ultra Vires Acts (Abuse of Delegation)

A Legislative Decree is an act of delegation where Parliament delegates authority to the Government. When the Government oversteps the bounds of this delegation (abuse of authority), the resulting act loses its status as a law. Instead, it acquires mere regulatory value, and control over these regulations falls to the ordinary courts.

The control phase, which is the final element, occurs a posteriori (after the Legislative Decree has been developed).

Dual Nature of Control (Article 82.6)

According to Article 82.6 of the Constitution (EC): "Without prejudice to the jurisdiction of the Courts, Laws of delegation may provide in each case for additional control."

This provision establishes two primary types of controls:

• Control of the Courts: Standard judicial review.
• Additional Formulas: Specific controls established by the delegating body (Parliament) in each case.

Limits on Control Mechanisms

The delegating law can establish controls as deemed appropriate, but these controls are subject to constitutional limits:

• Parliamentary Control: The extent of parliamentary control is established by Parliament in each case. Since Parliament delegates authority to a Government that often holds a parliamentary majority, subsequent parliamentary control is considered relative.
• Judicial Review of Laws: Due to the principle of separation of powers in a democratic state, laws (acts with the force of law) cannot be controlled by the ordinary judicial power. Review must be referred to the Constitutional Court (TC). Possibilities: