Chapter 2 - Spanish political and legal system (2016)

Apunte Inglés
Universidad Universidad Pompeu Fabra (UPF)
Grado International Business Economics - 1º curso
Asignatura Introduction to business law
Año del apunte 2016
Páginas 19
Fecha de subida 20/04/2016 (Actualizado: 20/04/2016)
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II. Spanish political system INDEX The parlimentary system .................................................................................................. 2 CONGRESS OF DEPUTIES .............................................................................................. 2 SENATE.......................................................................................................................... 3 ORGANS ........................................................................................................................ 3 HONDT RULE ................................................................................................................. 4 Legislative power .............................................................................................................. 5 LEGISLATIVE PROCESS .................................................................................................. 5 SPAIN AND CCAA .......................................................................................................... 7 SPANISH CONSTITUTION .............................................................................................. 7 SOURCES OF LAW ......................................................................................................... 9 KINDS OF RULES .......................................................................................................... 12 Executive power ............................................................................................................. 13 Judicial power ................................................................................................................. 14 THE JUDICIARY IN SPAIN ............................................................................................. 14 IN COMMON LAW SYSTEMS ....................................................................................... 14 Seminar 2: Electoral system and law in Spain ................................................................ 17 Summary ......................................................................................................................... 18 LEGISLATIVE POWER ................................................................................................... 18 EXECUTIVE POWER ..................................................................................................... 18 JUDICIAL POWER ........................................................................................................ 18 COMMON LAW ........................................................................................................... 19 SEMINAR 2 .................................................................................................................. 19 1 avillagrasa IBE, 1st year - 2nd Term Political structure: In Spain we have a parliamentary monarchy, which is heritable. The king should only arbitrate. The king signs laws (this is an Actes Deguts) or when he invests a new President, he has to do what the people have voted. This means that he can’t decide if he prefers PP or PSOE, for example. If he doesn’t agree with a law there’s a conflict. Spain is based in a parlamentary bicameral system.
The parliamentary system It represents the Spanish people. However, since we are in EU we can’t do everything we want. Its functions are: - Legislative Budgetary (now not because we’re in EU and have debt) Control of the Government Authorizes international obligations (ex: enter into a war) Nominates candidates for other constitutional organs In theory we should be able to decide our budget for the year, but since we’re in debt with Europe, Brussels have to approve it first. We will be able to do whatever we want once we pay back1.
The Parliament is regulated by articles 66 to 80 and by internal regulations of each chamber. It is divided in 2 chambers: the senate and the congress of deputies.
CONGRESS OF DEPUTIES FUNCTIONS AND POWERS - Investiture and censure the prime minister - Ratification of decrees (the Government instead of the Congress proposes something to change the law when it is something very urgent  it is not the right way).
- Legislative power: producing the main rules - Budgetary function: authorizing the expenses of the State (budget) - Control of the Government - Elect the President of the Government 1 See seminar for more information 2 avillagrasa IBE, 1st year - 2nd Term ELECTION SYSTEMS Uses the Hondt Rule, which benefits bigger parties.
- The Congress comprises 350 Deputies 52 electoral districts: provinces + Ceuta + Melilla  Each district appoints at least 2 Deputies (except Ceuta and Melilla which have only 1 Deputy each)  The remaining 248 are assigned to districts according to their population.
SENATE FUNCTIONS AND POWERS - They were supposed to be somewhere where different representatives of the different autonomous communities talk and argue, etc.
- However now they only ratificate (reafirmen) what’s said in the Congress.
ELECTION SYSTEMS Limited vote: - Each voted casts three votes for individual candidate of their province The 4 candidates with most votes are elected Provinces receive equal representation regardless of their population.
ORGANS Each chamber has its own organs: - President: organize debates, information to groups, etc.
- A Board (Mesa): parliament groups (group members don’t have to be from the same party but have similar ideas. Now there’re a lot of parties so is very important. The representation of Commissions is done with the groups).
- Board of Spokespeople (Junta de Portavoces) - A representative from the executive, chaired by the President of the Chamber.
They work in Plenary Sessions and Commissions.
3 avillagrasa IBE, 1st year - 2nd Term HONDT RULE It tries to give representation to little provinces. This means that a vote in a large province counts less than in a smaller province (in population terms).
The first representative is chosen depending on who has more votes. The first is from the party with a highest number of votes. To decide the 2nd, we divide by the number of deputies they’d have if they were given this deputy (i.e. if you have 1, you’re going by the 2nd, so you divide by 2 the votes you have; if you have 2,you divide by 3, etc) and the party with the highest number of votes (after dividing) wins.
Parties need to have at least a 3% of votes to be able to have a representative (this is why votar en blanc is “bad”/benefits bigger parties, because it highers the number of votes needed to get to the 3%).
This system is not very fair because, as we see in the example (slides) party A needed 38% of the votes to get 2 representatives, while party C only needed 20%. It favours big parties because they get over-represented because they have more votes and even though they divide. Also, they can do campaign in smaller provinces, where their vote is more worthy.
Government levels 1. Central Government 2. Autonomous communities Government 3. Municipal Government 4 avillagrasa IBE, 1st year - 2nd Term Legislative power LEGISLATIVE PROCESS 1. Government: projecte de llei. It’s very fast if you have absolute majority because you don’t have to debate.
1. Council of Ministers 2. Congress: exposition of motives + antecedents (aprovar) 3. Senate: veto or introduce changes (amendments) 4. Congress: may or may not accept amendments 2. Congress and Senate: proposició de llei. It can take very long but is the right way to proceed.
3. Parliaments of the Autonomous Communities 4. Popular Initiative: 500.000 signatures (usually doesn’t work but worked with bull fights in Catalonia) ORDINARY PROCESS 1. The bills proposed by the Government or the propositions of law issued by the Senate are discussed at the Congress. There’s a plenary session in order to be Accepted, Table voted and Have table amendments.
2. The proposals of law issued by the Congress or popular initiative pass directly to the senate.
3. The proposal (bill) is studied by a Commission, which designates a “ponencia” that will prepare a brief (resumen) about the text (dictamen).
4. When the text is approved by the Congress the law is submitted to the Senate by the President.
5. Work takes place in plenary sessions and Commissions 6. The senate can accept, table a veto or table amendments 7. If the Senate rejects it by an absolute majority, the text goes back to the Congress and it can happen: a. Approve the bill by the same majority required in the Senate b. Wait 2 months and approve it by simple majority c. Congress > Senate, so they have the “last word” 5 avillagrasa IBE, 1st year - 2nd Term For the law to exist we need the sanction of the law approve by the Parliament. It means that the king has to sign within 15 days. Then the law will be promulgated, and after being enforced it has to be published (for people to know their rights and obligations).
Old things, after a new law has been made, are not crimes. This is because people have to know what they can or can’t do and what’s the punishment. So the new rule would not affect you if what you did was before the publication of it, except 6 avillagrasa IBE, 1st year - 2nd Term if it benefits you.
SPAIN AND CCAA In Spain there are 17 communities, and some of them (7) have independent laws. For example in Catalonia there’s assets separation (separación de bienes) while in the rest of Spain there isn’t. Succession law is another example of difference of laws: in Catalonia I can decide what I want to do with 75% of my money whatever I want but I have to give 25% to my children. In Madrid children have to receive 1/3 of the money, but can apply for an extra third, so I can only decide to who I want to give the money with the last third of my money. In Navarra I don’t need to give anything to my children.
What communities can decide (their scope) has been negotiated in the past and includes executive and legislative power.
Autonomous Communities can organize: - Their own institutions - Their territory - Their financial activity Central Estate (CE) allows CCAA to have: - Executive power - Legislative power - No judicial power Competences are negotiated with the State. This is why Catalonia can decide over jail but the Basque Country can’t (with ETA members). Also they have to be requested and CCAA decide if they want those competences or not.
SPANISH CONSTITUTION HISTORY The 1st Spanish Constitution is the 1812 (Constitución de Cádiz) but it only lasted 2 years, because a king (Ferran) abolished and then, even though it was reintroduced 2 times it was changed over the years depending on the governor.
The constitution of 1931 was very modern and it established the separation of powers, included a lot of freedom rights (women could vote), it claimed to be separated from 7 avillagrasa IBE, 1st year - 2nd Term the Church (now is not laic, it’s a-confessional), it was also republican. It was based on the values of freedom, equality and political pluralism.
However, at 1933 there was a civil war (and posterior dictatorship) which abolished it.
it made the State be confessional. This means that you had to go to a religious school, you were only married if it was with the Church, etc. It lasted until Franco died.
CONSTITUTIONAL RIGHTS Fundamental rights: 1. CIVIL RIGHTS  Right to life  Right to physical and moral integrity  Right to personal integrity 2. POLITICAL RIGHTS  Right to vote  Right to belong to political parties  Right of association 3. SOCIAL RIGHTS  Right of education (free and compulsory education)  Workers: belong to trade unions and to strike Not fundamental rights: only if it can do it, if it has money. For example the right of housing, because the Sate is not obligated to provide a house if it doesn’t have money (or has other priorities)   General principles of social and economic policy Not enforceable before courts through a legal claim PROTECTION OF FUNDAMENTAL RIGHTS Between privates there’s not necessary to respect the fundamental rights. For example when a bar/club has a “derecho de admission”, they are not discriminating you if they don’t let you in because of something.
Ordinary court: You always go, and if what happened to you have something to do with the administration you also go to constitutional court.
Constitutional court: (recurs d’ampar). We only go there only if our fundamental rights have been violated, and first we have to go to the ordinary court.
 Declaration of nullity, act or resolution  Recognition of right of public liberties 8 avillagrasa IBE, 1st year - 2nd Term  Reinstatement of the integrity of the right and freedom SOURCES OF LAW ADOPTING LAWS Who rules? LAEGISLATIVE POWER Autonomous State community legislature parliaments Organic laws (only the State) Types of laws Ordinary laws (State and communities) EXECUTIVE POWER Legislative function Regalement Delegated legislation Government Decrees Law decree Commission orders Orders by ministries Resolutions Constitution  Organic law  Ordinary law  Regulations  Orders ORGANIC LAW Regulates topics of specific importance for the country, such as education, organize judicial power, army, electoral system, etc.
They require an absolute majority in the Congress and the Senate to be approved, because we want to have constant laws (not change every 4 years).
Organic laws can’t be adopted by the autonomous communities. This means that they can rule about education but can’t make organic laws.
Estatuts d’autonomia are organic laws, so they can’t be changed easily.
Organic laws are always above ordinary laws.
They can regulate: 1.
2.
3.
4.
Exercise of fundamental rights and liberties Statutes of autonomy Electoral system Others, provided by the constitution, issued by an organic law.
ORDINARY LAW They can be different depending on the community. The state law and the community’s is material this means that they coordinate. The community only can 9 avillagrasa IBE, 1st year - 2nd Term legislate if they are scope and don’t go against something the state has done. So law is not the same everywhere. The state has certain powers that communities can’t have.
They are all the laws whose subject of matter doesn’t interfere with the ones reserved for the organic laws. They are approved with a simple majority in the Senate and the Congress, where the Congress has the final decision.
They only regulate over what is on their scope (what the State lets them decide).
REGULATIONS They have a lower status and usually are dictated by the Government, but can also be international treaties and the European law.
They regulate matters outside the law and create and modify rights and duties of citizens, or organize administration activities affecting only those citizens related with the administration.
Types: - Decree from the Council of ministers - Order from the ministers or delegate commissions - Instruction and orders of regulation from inferior categories CUSTOMS They are not written but they are what we think that has to be made. For example shake hands to set a contract. They can’t be legally enforced. They can only be applicable if there isn’t any law and it doesn’t go against the law. Also we have some social customs that we don’t accept anymore (forced marriages or at 15 years old). If there isn’t any law and we want to use the custom we have to prove its existence, content and scope (ambit): it has to be proven that your community does this.
Custom is not overridden just because there’s a new custom (as opposite of laws), so even if customs are changed they can still be applied. However this could generate conflicts.
GENERAL PRINCIPLES OF LAW They are very abstract. They are basic rules that reflects convictions of a community in respect its organization (in Spanish constitution “all laws have to be interpreted according to the context of the moment it has to be applied”). This is only valid if there’s no law or custom.
10 avillagrasa IBE, 1st year - 2nd Term JURISPRUDENCE It’s the set of decisions of the tribunals about a specific matter. In civil law systems it’s not a source of law because judges don’t create law, they only interpret it. However it can be included in the 1st Section of the Supreme Court (only). The requirements are: - It has to be stable (that has happened/been applied more than once).
At least 2 opinions in the same direction There must be an identity between the precedent and the case doctrine wants to be applied to (i.e. the precedent has to be related with the case) Ex: there was a Clàusula sòl, which was beneficial for the bank if the interest rate went down but also if it went down (although it seems that it was better for the client). Then one lawyer asked Europe and they said it was an abusive clàusula.
However, now there’s the problem of what to do with all the other contracts. The problem is how to act (because we don’t have a very stable case law because every judge does one thing) because we can’t judge the same a lawyer who signed (because he knew what it was) than an old person.
{CONSTITUTION > LAWS > REGULATIONS > CUSTOMS > GENERAL PRINCIPLES} PUBLIC LAW vs. PRIVATE LAW PUBLIC LAW Defines the state or governs relationship between state and citizens PRIVATE LAW Governs relationship between citizens Tends to be more general and involve more parties or interests Often retrospective (dispute about an already signed contract) More likely to be protective Rarely has public policy implications In some cases goes beyond awards of monetary damages In private relations, in theory, there isn’t asymmetry of objectives. However, when we interact between public and private law there is because there are more restrictions.
The idea in private law is that you can do whatever you want -respecting a limit- as long as you consent it and respects the law.
The only exception is labour law, which is between private parties but it’s publicly regulated so some things are not negotiable: minimum wage, vacations, free days, etc.
But the parts can agree on how to adjudicate the free days, for example.
11 avillagrasa IBE, 1st year - 2nd Term KINDS OF RULES Substantive: They regulate things, situations (commercial code, European law, labour law, etc) Procedural: They affect rules of civil and criminal procedures Imperative rules: They are not negotiable. They are set by the state and can’t be changed. Act to avoid asymmetry in contracts. For example minimum wages and guarantees. You can agree on more but not on less.
Default rules: The code says that you can negotiate something different than the rule, but if you don’t negotiate, you’ll get a solution. For example you can negotiate to put the mother’s surname first but if you don’t ask for, the baby will have the father’s surname first. They are only used if parties don’t agree.
12 avillagrasa IBE, 1st year - 2nd Term Executive power Central government  CCAA government  Municipal government It’s the Government. It makes decrees and regulations.
RESPONSABILITIES - Internal ad foreign policy Civil administration Armed forces Defence of the state POWERS - Law Decrees Regulations.
COMPONENTS - President Vice-president Ministers (appointed and separated by the president of the Government) 13 avillagrasa IBE, 1st year - 2nd Term Judicial power It addresses two issues: Procedural rules and Substantive law.
Since a single case can involve more than one component but we have separate courts (for different components) it’s more difficult to judge. Another problem is that there’s more than one court, so if a case has happened in more than one community, where should it be judged (Nóos case). This is called jurisdictional competence. Cases can start in any level and they have different appeals (the final trial). The constitutional court is not included in the judicial system. Their only job is to interpret the Constitution. If I’m in my last appeal and I think I’m still right I can go to the constitutional court (NOT in the judicial system, as it only interprets the law).
THE JUDICIARY IN SPAIN It has different jurisdictions: Civil, Criminal, Administrative and Labour. In our system, judges are specialized in a topic (not in common law systems) such that they have a lot of knowledge of that kind of cases. There’s a general jurisdiction and then specialized courts. The idea was good but now we have a problem because they can only judge some cases, so when a case has more than one issue (each referring to a different court) they have to coordinate.
In Spain the Supreme Court has the obligation to take every case unless they’ve been already answered. They can’t say “this case is like this last one, so you should proceed the same way”, so they have to judge every case. In US if there’s precedent (they’ve solved the case) they don’t have to take it.
IN COMMON LAW SYSTEMS They have state courts and federal courts, which are not specialized. They are not hierarchical. State court may not coincide with the geographic state (see picture in slides) because they include more than one state. The relation between the federal and the state law is the same as between EU and the state members. State courts 14 avillagrasa IBE, 1st year - 2nd Term interpret only state law, and federal courts only interpret the federal law. This is different from our system because if you don’t agree with Spanish interpretation of a law you can ask Europe.
They have 11 courts of appeals. However they can’t go to the Supreme Court if the case has clear precedents.
Common law system, organization of State Courts Common law system, organization of Federal Courts 15 avillagrasa IBE, 1st year - 2nd Term SOURCES OF LAW IN THE U.S.
- Statutes passed by congress Administrative regulations Juridical precedent Equitable remedies HIERARCHY IN STATE LAW: State constitutions  State Statutes  State regulations  State law  local law HIERARCHY IN FEDERAL LAW: US Constitution and treaties  Federal statutes  Federal regulations  federal law  conflicting state/local law CONSTITUTION - US: Is the supreme law of the law, it establishes the federal government and enumerates its powers. The different states have different constitutions but they needed something to control them (state law). So the state has the powers that the federal states don’t have. So, the thing is that is the State (federal government) is the one that has limited powers. For example, declaring a war. So the States delegate these powers to the federal (who has the residual powers).
This implies that a lawyer in NY can’t be a lawyer in Texas.
- SPAIN: The state has all the powers (exclusive) and the CCAA can take the powers the state delegates. The opposite of what happens in USA. The residual powers in Spain are for the CCAA.
16 avillagrasa IBE, 1st year - 2nd Term Seminar 2: Electoral system and law in Spain Parties have more or less seats depending on the population. To allocate seats they use the hondt rule:  Problems hondt: in Soria you get more seats for fewer votes than in Madrid. This harms political parties that can’t run in all provinces (as PP and PSOE). The party most beneficiated with it was PP because it’s in all provinces and gets most of its seats from small places.
 Where can one find the scope of legislative powers of autonomous communities? It’s in the constitution where it says from whom are competences. CCAA doesn’t have to accept the power, and in that case the state has the power. Some issues are exclusive for the State (only the state can do things about it). For example the EU has exclusive power over commerce: all costumers have the same rights because if in 1 state one has 2 years guarantee and another has 3 years guarantee, companies are not competing fairly.
Si ets d’una altra part d’Espanya i et mudes a Catalunya no se’t aplicarà el civil code català fins al cap de 2 anys (si ho demanes) o 10 (per defecte). Si ets d’una part amb llei pròpia se’t aplicarà durant aquests 2/10 anys, i si d’on ets se’t aplicarà la llei general d’Espanya.
 Relation between Spanish and Catalan laws: As long as they are in the scope of their powers they apply the autonomous law. They don’t have hierarchy, they have a material relation.
 Contract: law within 2 parties. It allows efficiency. In private we can do whatever we want. This means that it will resume the parties’ preferences, so it will maximize their well-being, so it would be efficient. This is why the state doesn’t interact very much. The Spanish civil code works with some default laws, which only are applied if the contract is not complete. For example, if they don’t agree on where’s the delivery, they would have to consult the Spanish civil code.
Lobbies manage to force politicians to do things that are beneficial for them.
They capture deputies.
17 avillagrasa IBE, 1st year - 2nd Term Summary LEGISLATIVE POWER In Spain we have the Parliament (congress+senate), which is the responsible of making new laws. The ordinary process is quite slow so the congress (if it has majority) can pass laws if they are urgent.
Constitution  organic law  ordinary law  regulations  orders The constitution gives us fundamental rights that have to be respected, at least between not-private relations.
SOURCES OF LAW Organic law  Ordinary law Regulations  Customs  General principles  Jurisprudence EXECUTIVE POWER RESPONSABILITIES - Internal and foreign policies Civil administration Armed forces and defence COMPONENTS - President (voted by deputies) Vice-president Ministers (elected by president) JUDICIAL POWER - Addresses procedural and substantive law Divided in courts (jurisdictions) The constitutional court interprets the constitution 18 avillagrasa IBE, 1st year - 2nd Term COMMON LAW State and federal courts are not specialized, and they both have a constitutional court to interpret the law (you can only go if there isn’t precedent i.e. has been solved previously).
Statutes passed by the congress  Administrative regulations  Juridical precedent  Equitable remedies SEMINAR 2 The Hondt rule benefits large parties because they can finance bigger campaigns. The votes obtained in a very populated area worth less than the same number of votes in a less populated area (ex: 1M votes in BCN = 1 seat; 1M votes in Soria = 3 seats).
The scope of powers of the CCAA is in the constitution.
 Between Spanish and Catalan law there’s a material relation  Private law is separated by the state to achieve higher efficiency. The state only acts with default rules 19 avillagrasa IBE, 1st year - 2nd Term ...