Regulation Validity, Legal Challenges, and Law Hierarchy

Challenging Regulations and Publication

Publication of regulations occurs in the corresponding Boletín Oficial. Challenges can be made before the competent judicial body according to the criteria of Article 8 ff. of the LJ [Ley de la Jurisdicción Contencioso-Administrativa].

A judgment pronounced on the validity of regulations takes full effect against third parties from its publication in the relevant Official Gazette.

Indirect Administrative Appeal

The indirect administrative appeal (recurso contencioso-administrativo indirecto) is brought against an act applying the regulation, which is relevant when one does not wish to challenge the regulation directly. The time limit is the standard one for administrative appeals. This action seeks the invalidity of the administrative act that is detrimental to the appellant. It must be noted that the illegality of the regulation, from which the act derives, serves as the basis for invalidating the act.

Question of Illegality

If the judicial body hearing the action is the TS [Tribunal Supremo] or another body with jurisdiction over the validity of regulations, the ruling may also invalidate the regulation (Article 27.3 LJ). However, if this is not the case, the judicial body must raise the question of illegality (cuestión de ilegalidad) before the court competent to hear a direct appeal.

The judge raises the question of illegality by order within 5 days following the finality of the judgment. The question will be restricted to the regulatory provisions whose declared illegality served as the basis for upholding the claim. It should be recalled that a judgment invalidating a regulatory provision cannot suggest or impose alternative content.

Relationship Between Regulation and Law

Both regulation and law are accepted sources of normative production. The legal system is fundamentally built through these two sources, making the relationship between them a constant phenomenon.

An overarching consideration highlights the principle of hierarchy and the reserve of law, establishing the preeminence of law over regulation and the corresponding subordination of the latter to the former.

Other cooperative relationships include:

• Executive Regulations: Implementation relationships lead to executive regulations, where the regulation acts as an indispensable complement to the law. This connects regulation to the executive function.
• Non-Receptive Referral: The law entrusts the regulation of all or part of a matter to regulatory bodies, without setting specific patterns or providing them extensively. This is possible only in matters not subject to a constitutional reserve of law.
• Receptive Referral: The law authorizes the government to regulate a matter based on approved guidelines (bases) or to consolidate and harmonize existing legislation. This mechanism underlies legislative decrees (Articles 82-85 CE [Constitución Española]).
• Delegalization: A law authorizes administrative regulation of matters previously affected by a formal reserve of law, effectively degrading the rank of the rules governing that matter.