Spain 2

Spain
The internal process of legislative approximation in Spain is complex, but it must aim to achieve a correct elaboration of the transposition rule that helps to materialize the principle of legal security and avoid unclear, obscure and incomplete legislation, or illegal, for violation of the ordering of the European Union. In Spain, another factor of complexity is added: the integration in the European Community also affects the relations between central powers and Autonomous Communities.

Formal range of transposition rules (for directives):

In Spain, the Council of State has indicated that the norm of incorporation must have the same rank as those norms or internal regulations that currently regulate the matter that must be adapted to the Directive.

The problem arises in relation to those matters that, in Spanish law, are subject to the principle of "legal reservation". Many times, given the slowness of the ordinary legislative process, it has been difficult to respect the deadlines set in the derived community regulations. The solution has been one of using the figure of the Decree-Law, under the protection of the Government that the extraordinary and urgent need occurs when, close to the deadline set by the Directive, object of transposition, this has not yet been carried out. The executive also relies on a very loose TC (Constitutional Tribunal) jurisprudence regarding the possibility of using the Decree-Law:


 * The EC (Spanish Constitution) attributes to the Government the competence to appreciate the concurrence of the situation of extraordinary and urgent necessity, that does not make reference to extreme needs of the collective life, but to relative needs that arise in the governmental task.
 * The Decree-Law is a normative instrument that must be used with caution in those cases in which immediate normative action is required.

In conclusion, the choice of the normative transposition vehicle will depend on whether or not European regulation is subject to the principle of reservation of law, whether material or formal.

If there is no reservation, the transposition operations can be carried out in the regulatory headquarters, through Regulations of execution or development of a law or through independent regulations.

Competent bodies for the application of European law:

The Spanish Constitution does not offer an explicit response on the participation of the CCAA in the external activity of the State. On the contrary, art. 149.1.3 CE enumerates the international relations between the exclusive competences of the State.

But it can not be maintained that the State has unlimited competition: art. 149.1.3 of the EC can not refer to "all" facets of international relations because, if that were the case, it would not have been necessary to refer in that same precept to other State competences related to foreign activity. It must, therefore, be understood in a balanced way between the united necessity of the external action of the State and the constitutional distribution of competences between the State and the Autonomous Communities.

There are competences linked to international relations that are internally projected. When Spain gives its consent to be bound by Treaty, it does so with absolute respect for the constitutional order. The art. 93 CE is the title that enables to attribute powers to international organizations or institutions. But it has a limit on the right to autonomy of nationalities and regions. If in the elaboration of the community norms or in their execution they are not consulted when they refer to matters in which they internally possess the competence, then the attribution of competences would not have been only in favor of the Community Institutions, but also in favor of the State, effect not wanted by art. 93 CE.

Thus, the Autonomous Communities have their own right to participate in the formation of the national position (ascending phase) and to develop normatively and implement community norms not directly applicable that may affect the competences assumed by each Autonomous Community in its respective Statute (phase falling).

As for the TC, in the first years of validity of the EC showed a very broad conception of art. 149.1.3 º CE, understood that international relations were reserved to the exclusive competence of the State without limitation. The mere fact that there was an international connection was enough to deprive the CCAA of those powers, attributing to the State Administration the competence to carry out actions that, if this connection did not exist abroad, would correspond to the Autonomous Administration.

Despite the constitutional foundation, the participation of the CCAA in the application of Community law has led to a considerable number of litigation before the TC, due to the position held by the central administration, ignoring the jurisprudence maintained by the TC to from 1991 and from the generalized position of the doctrine. Only after 1995 can a certain attitude of understanding be noticed.

In any case, there is no distribution of responsibility between the State and the Autonomous Community, but rather it is the only one responsible before the European Union. But, paradoxically, there are no legal techniques so that the State can effectively guarantee the fulfillment of its obligations, when these must be fulfilled directly by the CCAA. Therefore, the principle of institutional autonomy can not impede the cooperation that must necessarily preside over State-CCAA relations, of which Law 2/97, of March 13, which regulates the Conference for related matters, is an example. with the European Community, a cooperation body whose mission is to guarantee the participation of territorial entities in the formation of the will of the State before the Community and in the implementation of Community law, and to understand regulatory problems that may arise.

Transposition deadline:

The directives must be incorporated into the ordering of the recipient Member States within the deadlines set in them. The ECJ has rejected allegations by governments based on internal problems to avoid compliance; nor does it admit as a justification for noncompliance the complexity of the legislative amendments required for incorporation.

The deadlines are, therefore, binding: if the transposition takes place satisfactorily, the procedure concludes. However, if the State does not transpose the Directive within the time limit set in it, such non-compliance constitutes a violation of the TCE and may motivate the opening of the corresponding procedure of the Commission against the offending State; procedure whose processing will continue, as the ECJ has repeatedly stated, although the work of transposition has begun.

In Spain, the concern about the delay in the execution of the community obligations resulted in an Agreement of the Council of Ministers of July 1990 in which a series of instructions is issued to accelerate the transposition procedure: it gives priority and recommends to the bodies in charge of carrying out the transposition, the streamlining of ongoing projects.

Regulatory content of the transposition of Directives:

In our legal system, it is normal that the transposition of the Directives in the internal standard is done completely, and not using the referral technique to the Directive itself, which facilitates the work of legal operators and allows a better Knowledge of the rule by citizens.

In the process of transposition, we must try to avoid situations of uncertainty, introducing legal categories that do not exist in our Law or using unintelligible or inadequate terms or expressions (Opinion 1517/91 and 1651/93 of the State Council).

a) Scope of the standard

The Council of the European Union, in order to allow the Commission to exercise more effective control and to guarantee regulatory transparency, decided in 1991 to include in all Directives a provision that obliges all Member States to make the rule or act of transposition an express mention of the corresponding Directive. Such reference should be made in the preamble of the regulations or in the statements of motives, in the case of laws.

b) Operative structure

Directives must be developed in a comprehensive manner and not on a partial basis, since, in this case, the Commission usually understands that the derived standard has been incorrectly transposed. The national legislator can not choose those precepts of the Directive that suit him according to his needs or that harmonize with domestic law.

It is necessary to avoid that the internal norms develop proposals of Directives still approved, so as not to have to proceed after their modification, in case of discrepancies.

It is also not convenient to mix in a norm of incorporation precepts of community provisions of different nature: Directives and Regulations; the problem would arise in its entry into force, since the precepts reproduced from the Regulations have immediate effect, while those of the Directives will be effective when determined by the norm of incorporation. In case it is essential to resort to this technique, it would be necessary to express that the precepts transcribed from the Regulations are without prejudice to the direct applicability of these and from its entry into force.

It is convenient to identify the community precepts that are incorporated literally, specifying in parentheses and at the end of the transcription the article in question.

If the State does not have full regulatory competence in the matter in question, but does have it to dictate the bases, it must include a final provision in which the title or qualifications that enable it are determined.

It will be necessary to articulate a transitory regime that favors the passage from one legislation to another, clarifying what is the regulation applicable to situations created prior to the entry into force of the transposition rule.

On the other hand, it is necessary to adequately formulate the derogatory provisions to guarantee the legal security of their recipients.

Despite the validity in Europe of the principle of inapplicability of a national norm contrary to the Community norm and in order to avoid misleading situations regarding the scope of the applicable provisions that would result in the maintenance of an incompatible internal standard, the ECJ affirms the need to repeal or modify the latter expressly and formally.

Finally, the regulatory contents must be reflected in the operative part of the regulation, not in the annexes.

The hearing procedure:

This procedure is regulated both at the constitutional and infraconstitutional levels. It is a guarantee that the initiative to adopt is legal, correct and timely and constitutes an instrument of participation. It is not a discretionary procedure; on the contrary, its omission constitutes a vice that generates the nullity and invalidity of the provision.

Of being projected to all those entities or sectors whose interests may be affected by the projected provision, being preferable to sin by excess, to avoid jurisdictional challenges of the incorporation norm; and must also be extended to the territorial entities, provided that the provision may affect their powers, particularly to the CCAA.

With regard to the Local Entities, the hearing can be verified both through the National Commission of Local Administration, and through the Association of Local Entities of state scope of greater implementation.

Communication to the Commission of the incorporation regulations:

Once the tasks of transposition have been completed, the Member State must immediately communicate the text of the provisions of national law which it adopts to the Commission, which, in turn, will inform the other Member States.

The bodies to which the normative production tasks correspond must also communicate to the Institutions of the European Union the norms and regulations of a technical nature.

In order to avoid that divergences between the different national technical regulations could hinder the free movement of goods, different mechanisms have been appearing in the European sphere and successively:


 * Instruments prohibiting measures of effect equivalent to quantitative restrictions in import and export operations.
 * System of harmonization of national legislations.
 * In its last stage, a preventive mechanism, the information procedure.

Direct effect of Directives

The Directive is a harmonizing instrument of the internal legislations of the member countries. It obliges the recipient Member States as to the result to be achieved, but leaves them free to choose the legal act of converting the Directive into a standard of domestic law.

The ordinary effectiveness of a Directive in the territory of a Member State takes place through an appropriate transposition within the period stipulated therein.

Now, efficiency is not achieved only through the mechanism of transposition; if that were the case, it would depend exclusively on the will of the Member State, and the mandatory force of the Directive would be weakened.

The directive can be effective outside the norm or act of transposition, if its content deducts rights or subjective duties, will have direct effect on citizens, who do not have to bear the adverse effects of an internal norm contrary. This is what the ECJ states in the judgment of 1979 (Ratti case) "a national jurisdiction before which a person who has complied with the provisions  of a Directive presents an appeal directed to the application of a provision incompatible with that directive not introduced in the internal legal order ..., must accede to the demand, if the obligation is unconditional and sufficiently precise".

a) Conditions required by the ECJ for directives to have direct effect are:

That the Member State of destination has not transposed the Directive within the stipulated period. That the directive defines rights in individuals, which, had they been introduced in the domestic legal system, would have eliminated an obligation or recognized a right that individuals could assert against the State. It is also essential that the obligation that is eliminated or the right that is created be sufficiently precise and not be subject to compliance with any condition.

If these conditions are met, the Directive may be invoked against any contrary national provision, which, still in force due to non-compliance with the obligation to transpose, can not be applied by the Member State to individuals; In addition, once the State has been notified of the Directive, it can not introduce more restrictive or different conditions in its code, unless the directive allows it.

It may happen that a Directive has been transposed by the receiving Member State within the period fixed by it, but incorrectly, in such a case, it is up to the national judge to verify whether or not the competent authorities to carry out the transposition have remained within the limits set by the Directive.

b) Horizontal efficiency and vertical efficiency

In principle, the directives are addressed to the Member States, which have an obligation to do. If they correctly adapt their domestic law to the provisions of those laws, the resulting national norms will bind public authorities and individuals and will be the only ones applicable in the litigation that may arise, without the Directives possessing any other value than the merely interpretative one.

However, the jurisprudential doctrine of the direct effect of directives not transposed or incorrectly transposed has led to a distinction being made between vertical direct effect (limited to relations between public and private powers) and vertical direct effect (which reaches relationships  between individuals).

The vertical direct effect of the Directives can only be invoked before the ordinary Courts by the individuals; The State that has not transposed the Directive or has done it incorrectly can not oppose the non-compliance of individuals (Ratti judgment) nor demand compliance with the obligations imposed by that directive.

However, given that the State has a time limit for the adaptation of its domestic law, the individual can not invoke the principle of "legitimate expectation" before it has expired, without prejudice to the possibility that the national judge may interpret domestic legislation. adapted to a Directive in light of this and before the incorporation has taken place.

With regard to the direct horizontal effect, the judgment of the ECJ of 1986 (Marshall I case) establishes that the non-transposed Directive does not in itself create obligations on individuals can not be invoked by one individual against another in a judicial proceeding, because in case otherwise, the principle of legal certainty would be seriously undermined, since, as a general rule, the publication of Directives is not mandatory.

This doctrine comes to enshrine discrimination for nationals of the Member State that did not transpose or did it incorrectly in relation to the citizens of the Member States that transposed in a timely manner, discrimination only mitigated by strengthening the principle of "interpretation of national rights under the Community Directives "and introducing the principle of liability of the Member State for non-compliance with the Directives.

The case of Euskadi (Vasque Country)

Even if in Spain the main political actor for implementation is the National Parliament, we count with regional parliaments in which decisions about implementations are made. In our Autonomous Region we have for example the Operative Programme FEDER 2007-2012 and FEDER 2014-2020 in which the Basque Country decides within the European Union how to manage this structural fund.

