2021

Osservatorio sulle fonti / Observatory on Sources of Law

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Section: Sources of Law in the EU member States

SPAIN– 2021

By Ana Carmona Contreras, University of Seville

Name of the Act/s

Ley 7/2021, de 20 de mayo, de cambio climático y transición energética

Date of entry into force of original text

May, 22

Date of Text (Adopted)

May, 20

Type of text

Law /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:

-        13: basic rules and coordination of general economic planning;

-        15: promotion and general coordination of scientific and technical research;

-        18: basic legislation on administrative contracts and concessions;

-        20: merchant marine, ports of general interest, airspace control, traffic and air transport;

-        21: land transport, traffic and circulation of motor vehicles;

-        22: hydraulic resources and uses, and authorization of electrical installations;

-        23: basic legislation on environmental protection, without prejudice to powers of the Selfgoverning Communities to take additional protective measures; basic legislation on woodlands, forestry and cattle trails;

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

-        25: bases of the mining and energy regime.

-        30: conditions for obtaining, issuing and homologating academic and professional qualifications.

Subject area

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

The law implements the Directive 2018/844 of the European Parliament and of the Council, of May 30, 2018, which modifies Directive 2010/31 / EU on the energy efficiency of buildings and Directive 2012/27 / EU on energy efficiency. Likewise, the legal system enacted by the law arises from Regulation 2018/1999 of the European Parliament and of the Council, of December 11, 2018, on the governance of the Energy Union and Climate Action.

Comment 

This law is the response to the commitment assumed by Spain in the international and European sphere in matters of climate change and energy transition. Through its provisions, the legislator establishes an institutional framework to achieve the progressive adaptation of reality to the demands that regulate climate action. Likewise, this framework will serve to guarantee the coordination of sectoral policies in order to achieve the objective of climate neutrality.

From this global perspective, the law establishes the emission reduction targets for 2030 and 2050, introducing in this regard the principle of non-regression. It is important to highlight the all-encompassing vocation that this principle presents, which projects its effects both at the normative and administrative level and in the field of jurisdictional practice. In a substantial way, its application prevents reductions or setbacks (quantitative or qualitative) in the levels of environmental protection existing at all times. Restrictions at these levels are only allowed when fully justified situations based on public interest reasons and provided that a weighing judgment has been previously made between the different legal interests at stake.

Likewise, the law incorporates into the Spanish legal system the two main climate and energy governance tools established in Regulation 2018/1999 of the European Parliament and of the Council, of December 11, 2018, on the governance of the Energy Union and Climate Action: the National Integrated Energy and Climate Plans and the 2050 Decarbonization Strategy of the Economy. In relation to the Integrated National Plans, their regulatory elements are foreseen, and the sectoral and political objectives must be determined, as well as the measures to be adopted to achieve them in the reference sectors.

Another important block of forecasts is the one relating to the establishment of adaptation measures in the face of the impacts of climate change. In this sense, the National Plan for Adaptation to Climate Change is configured as the basic planning instrument to promote coordinated and coherent action against the effects derived from said change. The National Plan must define the objectives, criteria, areas of application and actions to promote resilience and adaptation.

The awareness of the need to improve the capacity of the State to face the opportunities and challenges of the ecological transition and decarbonization is specified in the creation of another action mechanism: the Just Transition Strategy. This is defined in the law as a state-wide instrument aimed at optimizing opportunities in the activity and employment of the transition to an economy low in greenhouse gas emissions. Under the regulatory umbrella of the Strategy are the Just Transition Agreements, which are shown as key instruments to materialize the specific actions to be carried out.

The plans, programs, strategies, instruments and provisions of a general nature that are adopted in the fight against climate change and the energy transition towards a low-carbon economy will be carried out under open formulas that guarantee the participation of social and economic agents. stakeholders and the public.

Secondary sources/ doctrinal works (if any)

Available Text

https://www.boe.es/diario_boe/txt.php?id=BOE-A-2021-8447

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