Sources of Law in the EU Member States

Name of the Act/s

Real Decreto 463/2020, de 14 de marzo, por el que se declara el estado de alarma para la gestión de la situación de crisis sanitaria ocasionada por el COVID-19

Date of entry into force of original text

Marz 14, 2020

Date of Text (Adopted)

Marz 14, 2020

Type of text

Royal Decree/Real Decreto

Enacted by

Government

Reference to the Constitution (art)

Article 116.2: “A state of alarm shall be declared by the Government, by means of a decree decided upon by the Council of Ministers, for a maximum period of fifteen days.The Congress of Deputies shall be informed and must meet immediately for this purpose. Without their authorisation the said period my not be extended.The decree shall specify the territorial area to which the effects of the proclamation shall apply”.

Subject area

State of alarm, health protection, freedom of movement, economic activities.

If the act implements a source of EU Law: cite the relevant EU legal source

No

Comment 

By means of this royal decree (which according to what the Constitutional Court declared in its judgment n. 83 of 2016 is a source of law that has “rank, force and value of law”) the state of alarm is declared with the aim of protecting health and safety of citizens in the context of the Covid-19 pandemic. The main purpose of the measures adopted is to contain the progression of the disease and strengthen the Spanish public health system.

The spatial scope in which the state of alarm is declared is the entire national territory and its duration is 15 days. In practice, the state of alarm was extended six times (through the corresponding decrees proposed by the Government and approved by the majority of the Congress of Deputies), being lifted on June 21.

The management of the state of alarm shows an evident centralizing spirit, since it attributes to the President of the central Government the status of “competent authority”. Likewise, the figure of the “delegated competent authorities” is established, which are the following ministers: Defense, Health, Interior and Transport. These competent authorities are empowered to issue orders, resolutions and interpretive instructions that, in the specific sphere of their competence, are necessary to guarantee the provision of services and the protection of people, goods and places.

The state and local security forces, as well as the police of the Autonomous Communities are under the orders of the Interior minister. A similar approach is introduced in relation to the health authorities, since all of them must follow the orders of the minister of health, despite the fact that the powers in matters of health are owned by the Autonomous Communities (article 148.1.21 of the Constitution).

In the sphere of fundamental rights, the decree provides for important limitations that, in no case, can be considered equivalent to its suspension (expressly prohibited by article 55.1 of the Constitution). Particularly noteworthy is the severe limitation of the freedom of movement of people (article 19 of the Constitution), who may only circulate individually on foot or by private vehicle or public transport on public roads and spaces for public use to carry out a limited list of priced activities. These activities refer to the acquisition of food, pharmaceuticals and basic necessities; attendance at health centers; displacement to the place of work and return to the place of habitual residence; assistance and care of the elderly, minors, dependents and people with disabilities or in a situation of special vulnerability; situations of force majeure, need or of a similar nature. Likewise, assistance to places of religious worship is conditional on the adoption of organizational measures to avoid crowds and always respecting safety distances (at least one meter). In a similar sense, the development of commercial activity is regulated - which is only allowed in person in relation to food products, basic necessities, pharmaceuticals, the press, gas stations, basically.

As regards educational activity, it is suspended in person at all centers and stages, including university education. Whenever possible, online distance learning will be carried out.

Another sign of the seriousness of the existing situation, as well as the need to minimize all activity is confirmed in the provisions that suspend procedural deadlines in all jurisdictional orders and also in the Public Administration.

Weekly submission of information to the Congress of the deputies of a report on the execution of the different measures adopted by the competent authorities, as well as an assessment of their effectiveness in containing the progress of the pandemic.

Available Text

https://www.boe.es/eli/es/rd/2020/03/14/463/con

2019, 1

Osservatorio sulle fonti / Observatory on Sources of Law

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Section: Sources of Law in the EU member States

 

 

SPAIN– 2018

By Ana Carmona Contreras, University of Seville

 

Name of the Act/s

Ley Orgánica 2/2018, de 5 de diciembre, para la modificación de la Ley Orgánica 5/1985, de 19 de junio, del Régimen Electoral General para garantizar el derecho de sufragio de todas las personas con discapacidad.

Date of entry into force of original text

December 7, 2018

Date of Text (Adopted)

December, 5, 2018

Type of text

Organic Law /Ley Orgánica

If federal State

Federal level

□ State level (specify the State)

If Regional State

x State level

□ Regional level (specify the Region/Comunidad Autonoma)

Enacted by

Government/Congress of Deputies

Reference to the Constitution (art)

Article 14:

---- “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance”.

Article 23.1:

---- “Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage”.

Subject area

Right to vote; persons with disabilities;

If the act implements a source of EU Law: cite the relevant EU legal source

 

Comment

As a result of this legislative reform "everyone can exercise their right to vote, conscious, freely and voluntarily, whatever their way of communicating and the means of support required."

It can be said that the adaptation of the electoral law is a consequence of the need to adjust the Spanish regulation to the provisions of the Convention on the Rights of Persons with Disabilities. Thus, the pre-existing situation is overcome and makes it possible for people who are any limited or canceled their right to vote because of disabilities can exercise their right to vote.

The Committee on the Rights of Persons with Disabilities (United Nations) asked Spain through a recommendation adopted in 2011 to review "all relevant information to law all persons with disabilities, regardless of disability, of their legal status or their place of residence, have the right to vote and participate in public life on an equal basis with others ". In response to such a request, the Committee urged the State to amend Article 3 of the Electoral Act which "authorizes judges to deny voting rights by decisions taken in each individual case".

Secondary sources/ doctrinal works (if any)

 

Available Text

https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-16672

2019, 1

Osservatorio sulle fonti / Observatory on Sources of Law

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Section: Sources of Law in the EU member States

 

 

SPAIN– 2018

By Ana Carmona Contreras, University of Seville

 

Name of the Act/s

Real Decreto-ley 7/2018, de 27 de julio, sobre el acceso universal al Sistema Nacional de Salud

Date of entry into force of original text

July, 31, 2018.

Date of Text (Adopted)

July, 27, 2018.

Type of text

Royal Decree-Law /Real Decreto-Ley

If federal State

Federal level

□ State level (specify the State)

If Regional State

x State level

□ Regional level (specify the Region/Comunidad Autonoma)

Enacted by

Government/Congress of Deputies

Reference to the Constitution (art)

Article 43:

--- 1. “The right to health protection is recognised”.

--- 2. “It is incumbent upon the public authorities to organize and watch over public health by means of preventive measures and the necessary

benefits and services. The law shall establish the rights and duties of all in this respect”.

Subject area

Right to health; Immigrants.

If the act implements a source of EU Law: cite the relevant EU legal source

 

Comment

The commented Royal Decree-Law replaces the Royal Decree-Law 16/2012 of 20 April, on urgent measures to ensure the sustainability of the national health system and improve the quality and safety of its performance measures. This regulation, approved by the Government chaired by Mr. Rajoy during the economic crisis substantially restricted health rights of undocumented migrants living in Spain, since "left out of health care from public funds adults not registered or authorized to reside in Spain" and limiting the assistance to cases of "urgency serious illness or accident to high medical situation and care during pregnancy, childbirth and postpartum."

Making a clear difference with such a regulatory approach, the current RDL primarily aims to "guarantee the right to health protection and health care, under the same terms to all persons who are in the Spanish State". Consequently, the ownership of the right to health protection and health care is predicated of all people, regardless of nationality, who have established their residence in the Spanish territory.

Secondary sources/ doctrinal works (if any)

 

Available Text

https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-10752

2019, 1

Osservatorio sulle fonti / Observatory on Sources of Law

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Section: Sources of Law in the EU member States

 

 

SPAIN– 2018

By Ana Carmona Contreras, University of Seville

 

Name of the Act/s

Real Decreto-ley 10/2018, de 24 de agosto, por el que se modifica la Ley 52/2007, de 26 de diciembre, por la que se reconocen y amplían derechos y se establecen medidas en favor de quienes padecieron persecución o violencia durante la Guerra Civil y la Dictadura.

Date of entry into force of original text

August, 26, 2018

Date of Text (Adopted)

August, 24, 2018

Type of text

Royal Decree-Law /Real Decreto-Ley

If federal State

Federal level

□ State level (specify the State)

If Regional State

x State level

□ Regional level (specify the Region/Comunidad Autonoma)

Enacted by

Government/Congress of Deputies

Reference to the Constitution (art)

Article 149.1: The State shall have exclusive competence

over the following matters:

--- 8. Civil legislation.

--- 16. Basic conditions and general coordination of health matters.

--- 18. Basic rules of the legal system of Public Administrations (…); the common administrative procedure (…); legislation on compulsory

expropriation.

--- 24. Public works of general benefit or whose execution affects more than one Selfgoverning Community.

Subject area

Administrative procedure; Historical memory; Civil war; reparation victim’s rights.

If the act implements a source of EU Law: cite the relevant EU legal source

 

Comment

The Royal Decree-Law enables a procedure that allows the Council of Ministers to proceed to exhume and transfer the remains of the dictator Francisco Franco buried in the Valley of the Fallen (Valle de los Caídos). It should be recalled that the Valle is a monument built at the end of the spanish civil war (1936-1939). It is important, too, to remember that to do this, the dictator used the forced labor was carried out (under inhumane conditions) by prisoners on the Republican side.

In the Government's view, the operation of exhumation issued by Royal Decree-law is indispensable and "urgent" to comply with the Historical Memory Act (No. 52/2007 of 26 December, that acknowledges and broadens rights, and establishes measures, for those who suffered persecution or violence during the civil war and the period of dictatorship). This Act establishes the duty to remove Francoist symbols and avoid antidemocratic exaltations in public places, including the Valley of the Fallen. The Executive chaired by Mr. Sanchez also believes that it is necessary realize what is stipulated by the sixth additional provision of the Historical Memory Act: the Valle should become "a place and rehabilitate intended to honor the memory of all those killed in the war as a result of the subsequent political repression".

The decision to exhume and transfer the remains of the dictator shall be adopted by the Council of Ministers, according to the specific procedure regulated by the same Royal Decree. This procedure is initiated ex officio by the Board of Ministers. Then within fifteen days family members may provide on the fate of the remains of F. Franco indicating, where appropriate, place of reburial. For if family members do not manifest their will in a timely manner, it is attributed to the Cabinet decision on the place of reburial, in any case ensuring a dignified burial.

This decision shall be given to the parties concerned to, within no more than ten days, claiming what they deem appropriate. After that time, the Council of Ministers, by reasoned Agreement, decide on whether any exhumation and transfer, indicating, where appropriate, the destination to be given to the mortal remains affected.

Secondary sources/ doctrinal works (if any)

 

Available Text

https://www.boe.es/diario_boe/txt.php?id=BOE-A-2018-11836

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