Lecture 4 (2015)

Apunte Inglés
Universidad Universidad Pompeu Fabra (UPF)
Grado International Business Economics - 1º curso
Asignatura Introduction to business law
Año del apunte 2015
Páginas 20
Fecha de subida 20/07/2015
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IBE INTRO. TO LAW LECTURE 4.
OVERVIEW OF THE SPANISH LEGAL AND INSTITUTIONAL SYSTEMS SOURCES OF LAW: (PRODUCER OF A LAW) • Formal sources: Origin of a norm from which it derives its force and validity -> producers of a norm (WHO) (Ex. Parliament, Government) Exceptionally, governments have some power to create rules, but usually Parliament does. It has to have sovereignty • Material sources: Referring to the product (the law). Text or instrument in which a norm is included -> result arising from the production process of a norm (WHAT) (Ex.
Constitution, act, regulations...) FORMAL SOURCES OF LAW Spanish Constitution -> establishes the basic principles of the political structure According to it: • Spain is a "social and democratic State ruled by law": o Democratic: Representative democracy = sovereignty belongs to people.
o Rule of law: the law as the main arrangement for the polity o Social: welfare state. Certain goods have to be provided to the society, so some goods that are important have to be given to the society such as sanity.
• Political form is a "parliamentary monarchy" o King as the Head of State, symbolical value. (if we want to change sth about laws referring to king and these definitions, it is needed an absolute majority in the Congress) o Within the limits established in Constitution and by parliament POLITICAL STRUCTURE Traditional tripartite classification of power (Montesquieu): Executive (government) Functions: Execution and enforcement of laws and policies and the administration of public affairs Elements: Government and Public Administration Government's Functions: IBE INTRO. TO LAW - Holding executive and statutory power - Controls directions of national and foreign policy, civil and military administration - Controls the defense of the State Composition: President + Vice-Presidents + 12 ministers Appointment of President and Ministers: 1. Elections + King formally nominates a candidate for office 2. Candidate states policy program before the Congress. Congress elected members cast a vote on the candidate: - 1st round: absolute majority (50%+1) - 2nd round: Happens if not enough people sitting in the moment when the voting happens. Single majority (more votes in favor).
3. Parliament appoints the president, President appoints the Ministers (can be people out of the party), both are appointed by the King.
4. All are put in an office by the President (cannot be dismissed by Parliament) 5. The structure, name and number of Ministries can be changed by a regulation (Real Decreto) approved by the Government.
Relation Government (formed by people put by the President) - Parliament (formed by people voted by the citizen): - Based on confidence.
- Instruments to control activity of the Government in a Democracy, and make them responsible for bad acts: o Motion of censure: To submit (presentation) a new candidate for office (need 10% of deputies ask for it), to be successful it is needed absolute majority.
President has to resigns before the King and the submitted candidate is elected as the new President.
o Vote of confidence: The Government considers some decisions they've made are not very democratic, so they ask to the Congress for a vote of confidence. Needed more votes in favor (Single majority). President resigns before the King and a new process for electing a new President begins.
Statutory Power (of producing norms): IBE INTRO. TO LAW Besides the executive action developed by the Government, the Executive branch has two possibilities of producing general norms, this is, norms that are to be applied to different situations: o Regulations: Main instrument available to the Government to develop its policies.
(Reglamentos, Real Decreto) o Legislative instruments: Decree and legislative decree with which the Government can pass these instruments that have the same force and validity of an act passed by the Parliament. (Decreto ley i Decreto legislativo) Public administration ("funcionarios"): Helps the government to manage executive power.
They have to serve the general interest objectively with principles of efficiency, hierarchy, decentralization, coordination and subordination to the legal system.
Civil servants enter with principles of merit (exams), have union right (special rights), incompatibilities of interest (cannot have an ownership) and safeguards are different.
Legislative (parliament) Bicameral system: There are 2 legislative branches, Congress + Senate Functions: Representing Spanish people when making laws • Legislative: producing the main rules of the system • Budgetary: authorizing the expenses of the State (annual) • Control of the government: Mainly through motion of censure.
IBE INTRO. TO LAW • International obligations of the State: Parliament authorizes them (This happened in Spain: Government decided to take part of the war in Irak, but the Parliament was against so we didn’t take part of it.) • Parliament nominates candidates for other constitutional organs. (e.g.: Constitutional Court, Ombudsman) Ombudsman's man = An organ that controls the activity of the administration in relation to citizen (defensor del pueblo/síndic de greuges) Structure: Federal or quasi-federal nature of the Spanish State: Parliament divided in two chambers 1) the Congress of Deputies ((lower: because it represents the village) chamber of popular representation) and 2) (higher: represented for important people) the Senate (chamber of territorial representation) Congress holds a superior position over the Senate, Congress has more people.
The Senate has a sense in countries that have a federal or quasi-federal country. In a centralized country like France, the Senate may not be useful.
Organs of each chamber: • President • Board • Board of spokespeople (junta de portavoces) • A representative from the Executive, chaired by the President of the Chamber How they work: In Plenary Sessions (discuss the decisions to be taken) and in Comissions (to develop the decision more technical group studying the details of the laws).
Chambers may delegate to the Commissions for details.
Elections of Deputies: Voting system • Rules: Ley orgánica (LOREG) • Composition: 350 Deputies in the Congress • 52 electoral districts (provinces): provinces + Ceuta + Melilla o Each district at least 2 deputies.
o Ceuta i Melilla least 1 deputy o the 248 remaining deputies are assigned according to their district population IBE INTRO. TO LAW ▪ Hondt Method: 1) Deputies per Districts assigned, then apply Hondt Method to 2) assign the nº of seats assigned to each party You have a total of votes for each party. You divide by 2,3,4,5,6,7,8. Then you pick the highest number (any column) and assign a seat, then the second, third... Until you have no more seats Norms: • Constitution/amendments (document correction) • Regional Constitutions (estatuto de autonomía): Those are in all the quasi-federal States.
They are made by each regional Parliament. Then it goes to the central parliament which confirms it.
• Acts: ordinary acts (leyes) and organic acts (leyes orgánicas) • International Treaties and Conventions Judiciary (judge) Concept: Branch of the State in charge of the interpretation of laws and the administration of justice Composition: Courts (unipersonal, one judge who decides) and Tribunals (work in commissions, decide in groups of 3 or more) (composed of) -> Judges (work in courts) and magistrates (work in tribunals) (=justices) -> Have the power to administer justice in the name of the King of Spain Spanish Judiciary is divided into five jurisdictions: Each one decides questions about every specific topic.
Examples: • If sb causes me injuries -> criminal • If sb told me one specific price of a good and then sells it to me for more -> civil courts IBE INTRO. TO LAW • business men - workers -> labor courts • It happens to militar people or in a militar place -> military courts • politic corruption -> criminal courts • urbanistic problems -> administrative courts -> public relevance but no crimes • divorce + gender violence -> criminal courts (can decide at the same time about both issues) • A soldier wants to get divorced. Civil court or military court? Civil as it’s a personal affair.
But if it implies two soldiers, military court.
Jurisdiction composed of several different circuits: Trial courts (at the bottom) they are unipersonal: Court of first instance: when it affects me and another individual. Most of the civil matters will go to court of first instance. General question (demands between private people) Family court: Family matter like divorces Commercial court: Problems between business people and firms If you don't agree, you can go to...
Court of appeals (audiencia provincial) -> Multi-personal court (more than 2 judges) that will decide about the case If you still don't agree, you can go to... (multipersonal courts) Supreme court (in Madrid, only one): If the matter is not a competence of the region/ community IBE INTRO. TO LAW Superior court of justice: If the province can legislate on this topic. In cat, NO COMPETENCE IN CONTRACTS, you have to go to Madrid. It has competence in family law, inheritance law... NO COMPETENCE on criminal stuff. Just on private matters. Public matters go to supreme court.
Example: • Cat. has not a legislation about contracts (it is in process) • Criminal law is exclusive competence of the State (public matters) • Family law and inheritance law (private matters) -> Superior court of justice If you still don’t agree and affects a personal right: tribunal constitutional (constitutional court) not judiciary! If still not okay, Strasbourg. If you are right, they sanction Spain. However, they don’t have to fix what they did wrong. But they usually do, because of reputation among other countries.
Right to have a house is constitutional. That’s why people think State should intervene in those cases. Right to work: It’s constitutional. Article 35. But they are not fundamental.
Two ways to go to Constitutional Court: - a fundamental right was violated - I prove there was a mistake in the decision The Spanish Judiciary is a professional judiciary: Most of its members are public servants divided into the three categories: - Judge: work in courts (unipersonal courts) - Magistrate: work in multipersonal courts - Supreme Court Magistrate Selection of judges: •Entrance to the judiciary is limited to Spanish nationals who hold a Bachelor’s Degree in Law issued by a Spanish university and who are not legally disbarred from applying •Applicants must pass a competitive state exam, a state exam with contest of merits, or a contest of merits Selection of judges: •Selected applicants enter the Judiciary School where they take mandatory courses over a year, as well as carrying out practical courses as associate judges in courts and tribunals of the different jurisdictional orders. Candidate passing this course are then sworn in as judges IBE INTRO. TO LAW •Magistrates of the Supreme Court can be drafted in a contest of merits between prestigious jurists and lawyers with more than fifteen years of professional experience. One in every five judges of the Supreme Court is recruited this way Prohibitions: •Judges and magistrates are banned from membership of political parties and trade unions, from issuing messages of congratulation or censuring public powers or official corporations, and from attending public meetings or rallies in their role as members of the judiciary SPANISH CONTITUTIONAL COURT The rule that regulates the spanish constitutional court is the Constitution, (Ley Orgánica del Tribunal Constitucional (LOTC)). It is not part of the Judiciary. It is the “Supreme Interpreter” of the Constitution. You go there when a norm contradicts the constitution. They determine if it’s true.
“Supreme Interpreter” of the Constitution 12 members: Justices + President: “quality vote” Appointed by: - 4 by the Congress (3/5 of its members) - 4 by the Senate (3/5 of its members) - 2 by the Government - 2 by the Judiciary (CGPJ) Formally appointed by the King They serve for nine-year terms Background: It is an organ highly political, as if the party is conservative, congress; senate and government members are likely to be also conservative Functions: - Control of constitutionality of legal norms (Recurso de inconstitucionalidad, cuestión de inconstitucionalidad) o Goverment or Parliament can send recurso de inconstitucional when an act has been passed and it’s contradictory to the constitution.
o Cuestión de inconstitucionalidad has the same function but is sent by a judge - Control of constitutionality of legal norms passed by regional parliaments IBE - INTRO. TO LAW Protection of fundamental rights established in Part I, Chapter II, sections 15 to 29 Spanish Constitution (Fundamental Rights and Public Liberties) (Recurso de amparo) If a citizen considers that a formal decision is against their fundamental right, they can appeal in front of a constitutional court and ask for a decision.
- Disputes between State and Self-Governing Communities or among Self-Governing Communities themselves (Conflictos de Competencia) Example: If Catalonia wanted to regulate something regarded to criminal law, the government can say no, as it’s not their competence. Example2: Just the State can regulate marriage. Constitutions do not say anything about stable couples. Catalonia began to regulate them as they couldn’t regulate marriage. The central government do not want this.
They don’t want communities to regulate those “second marriages”. Finally, communities got this right as the Constitution does not say it is not their competence as it is not marriage.
Most cases submitted to the Spanish constitutional court are recurso de amparo and most of them are rejected. Most of the decisions of the constitutional court are decisions that mean they don’t want to study a case as they do not think there’s a fundamental right violated.
IBE INTRO. TO LAW ALL THREE INDEPENDENT POWERS!! Government will never be neutral, they’ll take advantage for them. We need instruments controlling that. Parliament has a control function over the Government.
Avoid confusion of power.
Constitutional court is not inside the three powers of laws, it is a professional judiciary is formed by political (public servants - judge ) SELF-GOVERNING COMMUNITIES (COMUNIDADES AUTÓNOMAS) Self-Governing Communities can organize: • Their own institutions (art. 147.2 CE) • Their territory (art. 148.1.2. and 152.3 CE) • Their financial activity (article 156.1 CE) The Spanish Constitution allows Self-Governing Communities to have: • Executive power • Legislative power • NO judicial power This does not imply we don’t have courts, we have Catalan courts but they depend on the other.
IBE INTRO. TO LAW Catalonia: Regional Constitution: Statute of Autonomy (2006) Legislative Power: Parlament de Catalunya Executive Power: Govern de la Generalitat Relationship between state law and law of the Self-Governing Communities: • Not hierarchical but material: They are competent on their own issue. In an ideal world, no conflict should exist. Central parliament has some competences and the regional has other ones.
However, some competences are not clear, that’s why there are conflicts.
• Art. 148 and 149: Art 148 regulates what communities can do: Organization of their institutions of self-government, changes in municipal boundaries within their territory, town and country planning and housing, agriculture and livestock raising, in accordance with general economic planning, woodlands and forestry, management of environmental protection, local fairs, promotion of economic development of the Self-governing Community within the objectives set by national economic policy, promotion of sports and the proper use of leisure and social assistance.
Art 149 regulates what the State can do: Regulation of basic conditions guaranteeing the equality of all Spaniards in the exercise of their rights and in the fulfilment of their constitutional duties, nationality, immigration, emigration, status of aliens, and right of asylum, international relations, defence and the Armed Forces, administration of Justice, commercial, criminal and penitentiary legislation; procedural legislation, civil legislation, without prejudice, legislation on copyright and industrial property, customs and tariff regulations; foreign trade.
IBE INTRO. TO LAW • Spanish Constitution: distribution of domains between the State and the Self-Governing Communities MATERIAL SOURCES OF LAW WRITTEN SOURCES The hierarchy of legal standards a) Constitutional rules and principles b) International treaties and EU law -> Lecture 6 c) Organic laws, ordinary laws and other legal instruments d) Regulations Act, decree and organic act have the same importance, just different contents.
SPANISH CONSTITUTION CONTENTS IBE INTRO. TO LAW PRELIMINARY PART (art. 1 to 9) PART I. Fundamental Rights and Duties (art. 10 to 55) • 15-29 Fundamental rights • 24: Derecho a la tutela judicial efectiva • 14: Equality. It’s not in the essencial part of the constitution PART II. The Crown (art. 56 to 65) PART III. The Parliament (art. 66 to 96) PART IV. Government and Administration (art. 97 to 107) PART V. Relations between the Government and the Parliament (art. 108 to 116) PART VI. Judiciary (art. 117 to 127) PART VII. Economy and Finance (art. 128 to 136) PART VIII. Territorial Organization of the State (art. 137 to 158) PART IX. The Constitutional Court (art. 159 to 165) PART X. Constitutional Amendment (art. 166 to 169) SPANISH CONSTITUTION AMENDMENTS Ordinary amendment: • 3/5 of Congress and 3/5 of Senate in favor • If there is no agreement between the two chambers: absolute majority in Senate and 2/3 in Congress Extraordinary amendment: • Complete amendment (substitution) or partial amendments of provisions involving fundamental rights, general principles and the Crown • 2/3 of Congress and 2/3 of Senate • Dissolution of Parliament. New elections • The new parliament shall ratify the amendment: 2/3 of Congress and 2/3 of Senate ORDINARY ACTS: THE LEGISLATIVE PROCESS ACTS: Who can start the process? IBE INTRO. TO LAW Government: proyecto de ley Congress and Senate: proposición de ley Parliaments of the self-governing communities: can make proposals Popular initiative (needed at least 500.000 signatures) The bills proposed by Government or the legislative proposal issued by the Senate are discussed at Congress.
o Plenary session (meetings were all the deputies should be presented) o Legislative proposal from the Congress and from popular initiative pass directly to the next step.
Senate can veto or modify the bill, then it has to be absolute majority.
The bill (Proyecto de ley) or the legislative proposal are then discussed by a Commission o The commission designates a committee (deputies + people specialized in the field discussed) (ponencia) which will prepare a brief about the text (dictamen) o Discussed and voted in Plenary Session Once the text is approved by the Congress the bill or legislative proposal is submitted by the President to the Senate.
Articles from 15 to 29 into the Constitution, are the most important, fundamental rights! Right to work and right to a house is into the Constitution but it isn’t into the “fundamental part” of the constitution. To access constitutional court and European Court are aimed at protecting ONLY fundamental rights, so you have to prove it before.
Example: A pregnant woman that has been fired because of that.
Right to equality – Article 14 (although it is NOT into fundamental right, it can access to Constitutional courts) – Article 24 (last way to defend this woman) As in Congress, work takes place in Plenary Sessions and in Commissions.
• The Senate may accept, table a veto or table amendments • If Senate vetoes or rejects the text (by an absolute majority) the text goes back to Congress. Congress can preclude the veto placed by the Senate by an absolute majority • If Senate introduces amendments, Congress only has to accept or reject them by a simple majority (more votes in favor than rejected) IBE INTRO. TO LAW Congress accepts and it is ready to be sanctioned by the King • The King shall sanction the acts approved by the Parliament within the period of 15 days, shall promulgate (formal declaring it official in the country, sign it) them and order their publication (citizen will know it).
Can the King reject sanctioning an act? Legally he can, but he won’t because he knows his role is symbolic.
Parliamentary Monarchy – king has still a role, in that case, sanction acts.
The application of the rule, if it isn’t specified anything different, will be 20 days after it has been published. It could be applied the day after, if it is written.
Vacatio legis: Citizens know the act but we are not bind by it. (20 days by normal rule and more or less if it’s specified) ORGANIC ACTS (LEY ORGÁNICA - LO) –Affects an important aspect of our society Procedure: The approval, amendment or repealing of Organic Acts require an absolute majority of the Congress in a final vote of the entire bill.
IBE INTRO. TO LAW •Subject-matter requirement: - Fundamental rights and public liberties - Regional Constitutions (Estatutos de Autonomía) - General Electoral System - Other matters provided for in the Constitution: Sensitive topics a. Ombudsman (Defensor del Pueblo) b. Council of State (Consejo de Estado) c. Constitutional Court (Tribunal Constitucional) d. Popular legislative initiative (art. 87.3 CE) Example: If we want to change sth affecting Ombudsman (any above sensitive topics protected by the Constitution) we need to pass it by organic act (a wide majority of the Parliament has to agree with this reform).
ORDINARY ACTS All the other acts passed by single majority in the Parliament, because they don’t lead with the topics about organic acts.
Organic and ordinary are different about their content, a material difference, so are both equally important.
LEGAL NORMS PASSED BY THE GOVERNMENT Government never do acts, Parliament do them.
The function of the Government is secondary, Parliament gives the work to Government creating a Legislative Decree.
Legislative Decree (Real Decreto-Legislativo): • Delegation by the Congress • Any matter except those that have to be regulated by Organic Acts • Two main functions: a. Consolidation of different legal texts in a unique document. Congress can delegate function to the Government, and it can order through legislative decree to a unic text, that contains all norms about same topic.
b. Production of new norms. Delegation in this case has to include an act by the Parliament establishing the principles that have to be respected by the Government (Ley de Bases). Congress can delegate it to the Congress, including an act.
IBE INTRO. TO LAW Decree (Real Decreto-Ley): • Temporary legal norm • Extraordinary and urgent cases that need to be regulated. Example: Lorca’s disaster • Some issues cannot be regulated through this instrument: basic institutions of the State; rights, duties and liberties of citizens; institutional organization of the Self-Governing Communities; and the electoral system.
• It has to be confirmed within 30 days by the Parliament to turn it into a law (organic or ordinary act) (RD-L 5/2012, 5th March, on civil and commercial mediation -> Act 5/2012, 6th July, on civil and commercial mediation) Examples: RD-L 1/2010 on the obligations of air traffic controllers REGULATIONS (REGLAMENTOS) Norms generally made by the Executive Power • Lower hierarchical status (contra legem) • Formal source: a. Government (State, Region, Local) b. Administration: Public Agencies and other Offices c. Other institutions (CGPJ, Congress, Senate, Constitutional Court) Kinds of regulations: • Decree (Real Decreto) from the Council of Ministers • Order (Orden) from the Ministers or Delegate Commissions • Instruction (Instrucción) and Orders of Regulation (Circulars) from inferior authorities and members of public agencies Examples: General Attorney (Instrucción del Ministerio Fiscal) and the Central Bank of Spain (Circular del Banco de España UNWRITEN SOURCES Customs and practices CUSTOM NON-WRITTEN LAW IBE INTRO. TO LAW Opinio iuris = general conviction about the obligatory character of a customary rule Subsidiary source of law: it’s only applicable by a judge if it is not contrary to a legal norm (contra legem custom) or to public policies or public ethics (bono mores) Whoever claims its application must prove its existence + content + scope Example: In India they cannot harm cows, they appreciate them too much Example: If I have a piece of land and I cannot access to it, my neighbor must let me pass to the land through his private property -> “Servidumbre” GENERAL PRINCIPLES OF LAW Basic rules reflecting the convictions of a policy regarding its basic institutional arrangements and organization -> dynamic General principles of law (sth that we know it’s important to respect in our society, non-written) permeate the legal system, for instance art. 1.1 CE, and they also inform other sources Applicable only in absence of law and custom applicable to the case Examples: – Ignorantia iuris non excusat: You can’t say you don’t know the law, you can access to it – Lex posterior derogat priori: If there’s a law changing another one, the latter always prevails.
– Lex specialis derogat generali: If we have a law regulating a question that is important to us, but theres another applying this issue in a more detailed way, the special rule is more important as it is more concrete – Public policy (ordre public): Sth (selling blood, organs…) is permitted in some countries and not in others). Non-written norms that are common knowledge. Can we sell organs? Can we sell blood? Can we sell women’s pregnancy? Of course no (at least in this country) We’ll always apply the more specific law/rule.
INDIRECT SOURCES Case law and legal doctrine C ASE LAW Case law -> written source of law.
In civil law systems, it does not formally constitute a source of law -> auxiliary source -> In common law it is very important. Binding civil law only by Supreme Court.
IBE INTRO. TO LAW Example: Two people get divorced and one want to receive a pay from the other for all his/her life, but they can prove that he/she hasn’t work never so he’ll not receive all that .
Precedent in common law systems (stare decisis) Requirements: 1. Stability 2. Fundamental to the resolution of the case 3. At least 2 Supreme Court Decisions in the same direction 4. Identity (we can just use case law when both cases are almost identical) Example: We divorce when I’m 60 and I’ve never worked, I ask my husband to pay me till I die.
There’s no maximum, so the judge does not know what to do. If the judge finds a similar case, the judge will follow it.
Main courts: – Court of justice of the European union – European court of human rights – Spanish constitutional court – Spanish supreme court Right to honor and privacy article 18 so you can access to the constitutional court! SOURCES OF LAW OF THE SPANISH LEGAL SYSTEM (ART. 1 CC): • Law/Formal Law 1. Constitution 2. Acts - Ordinary Act (Ley) - Organic Act (Ley Orgánica) - Decree (Real Decreto-Ley) - Legislative Decree (Real Decreto-Legislativo) 3. Regulations (Reglamentos) IBE • Custom • General Principles of Law • [Case Law] INTRO. TO LAW ...