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Introduction to Business Law

Universitat Pompeu Fabra. Course 2013-2014.

Prof. Antoni Rubí Puig

Overview of the Spanish Legal and Institutional Systems

Starting point: the distinction between formal and material sources of law

• (^) Formal Sources: origin of a norm from which it derives its force and validity producers of a norm. E.g.: Parliament, Government.
• (^) Material Sources: text or instrument in which a norm is included  result arising from the production process of a norm. E.g.: Constitution, Act, Regulations.

Political Structure

• (^) The Spanish Constitution establishes the basic principles of the political

structure.

• (^) In the Constitution, Spain is defined as a social and democratic State

ruled by Law :

• (^) Rule of Law: the law as the main arrangement for the polity. Different branches of government must abide by the law when carrying out their tasks.
• (^) Democratic: representative democracy. Sovereignty belongs to the Spanish people. Limited mechanisms of direct democracy (popular legislative initiatives, referenda).
• (^) Social: Welfare State
• (^) The political form of the Spanish State is a Parliamentary Monarchy:
• King as the Head of State.
• (^) Within the limits established in Constitution and by parliament. No real political power

Political Structure

Traditional tripartite classification of power

Executive Legislature Judiciary Baron de Montesquieu (1689-1755)

Executive Power

Government’s Functions

(Articles 97 SC and 1.1 Act

• (^) Holds the executive and statutory power
• (^) Controls the directions of national and foreign policy, civil and military administration and the defense of the State. Palacio de la Moncloa

Executive Power

Composition : the Government is composed of the

President, Vice-Presidents and the Ministers.

Executive Power

Relation between the Government and the Parliament:

• (^) It is based on confidence. The Government is jointly accountable to the Congress of Deputies for its actions (article 108 SC)
• (^) Congress may pass a motion of censure ( moción de censura ), regulated by article 113 SC: - (^) Submission of a new candidate for office. - (^) Absolute majority
• (^) The Government may also ask Congress for a vote of confidence ( cuestión de confianza ); regulated by article 112 SC. - (^) Single majority
• (^) Article 114 SC: it regulates the consequences of losing the Parliamentary confidence trough a motion of censure or a vote of confidence: - (^) Motion of censure: President of Government resigns before the King and the submitted candidate is elected as the new President. - (^) Vote of confidence: President of Government resigns before the King and a new process for electing a new President begins.

Executive Power

Statutory Power: 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:

• Regulations ( Reglamentos , Real Decreto ). This is the main

instrument available to the Government to develop its policies.

• Legislative instruments : Decree ( Decreto Ley ) and Legislative Decree

( Decreto Legislativo ). In this function, the Government can pass

these instruments that have the same force and validity of an act

passed by the Parliament.

Legislative Power

It is the branch of the State which has the

power to make laws. Spain has a bicameral

system. Therefore, the Legislative Branch

includes the Congress and the Senate.

Legislative Power

Most democracies have bicameral systems:

Bicameral System Unicameral System No Parliament

Legislative Power

Structure

• (^) Parliament is regulated by articles 66 to 80 SC and by the own internal regulations of each Chamber: - (^) Regulation of the Congress, February 24, 1982 - (^) Regulation of the Senate, May 3, 1994
• (^) The Parliament is divided in two chambers (Article 66.1 SC): the Congress of Deputies ( Congreso de los Diputados ), defined at article 68 SC and the Senate ( Senado ), defined at article 69 SC

Legislative Power

This division is mainly a consequence of the

recognition of the federal or quasi-federal nature of

the Spanish State :

The Congress is the so-called chamber of popular

representation and the Senate is the chamber of

territorial representation.

In practice, the Congress holds a superior position

over the Senate (as it happens in most bicameral

systems, in which the lower chamber or house plays

a more prominent role than the upper house).

Legislative Power

Election of Deputies. Voting system:

• (^) Rules :

Ley Orgánica 5/1985, de 19 de junio, del Régimen Electoral General

(LOREG).

• (^) Composition :

Congress comprises 350 Deputies

• (^) 52 Electoral districts: provinces + Ceuta + Melilla

 Each district apppoints at least 2 Deputies (except Ceuta and

Melilla: 1 Deputy each).

The remaining 248 Deputies are assigned to districts according to

their population.

Legislative Power

Distribution of Deputies per Districts (General Elections 2011):

• Madrid District Number of Seats
• Barcelona
• Valencia
• Alicante, Sevilla
• Málaga, Murcia
• Cádiz, Vizcaya, A Coruña, Balears, Las Palmas, Asturias
• Santa Cruz de Tenerife, Zaragoza, Pontevedra, Granada
• Córdoba, Girona, Guipuzkoa, Toledo, Almería, Badajoz, Jaén
• Navarra, Castelló, Cantabria, Valladolid, Ciudad Real, Huelva, León
• Lleida, Cáceres, Albacete, Burgos, Salamanca, Lugo, Orense, La Rioja, Alaba
• Guadalajara, Huesca, Cuenca, Zamora, Ávila, Palencia, Segovia, Teruel
• Soria
• Ceuta, Melilla