In the latest years, frequent discussions have been held about the eventual repeal of the fourth transitional provision of the Spanish Constitution, which envisages a specific legal channel for the integration of Navarra into the Autonomous Community of the Basque Country. Both those who support this repeal and those who advocate for the maintenance of that provision in the Constitutional Text start from the premise that such provision is still in force in our legal system. This paper attempts to justify why this normative mandate, as has happened with the rest of the nine transitional provisions of the Spanish Constitution, has lost all validity because the precondition of transience has ceased.
This paper examines the essential elements of the abbreviated legislative procedure in one single reading, both in the Congress of Deputies and in the Senate. In particular, its transversal nature, the scope of its enabling preconditions and the limitations of the ius in officium that its application involves, all this for the purpose of being able to determine whether the reform of the Spanish Constitution of 1978 can be conducted by such a procedure, as has already happened in two reforms (of very different content) carried out to date: Article 13 (1992) and Article 135 (2011).
García de Enterría spread Carl Schmitt’s expression “motorized legislation” to refer to the phenomenon how an understanding of the statute law as a mere tool ends being socially dominant. Statute law loses its traditional authority and became a “simple technical means of the bureaucratic organisation without any link to justice”. The Spanish constitutional state has both followed this path and offered other side of it: the outsourcing of the law-making. The instrumental role granted to the executive power in the legislative process and its wide powers in extraordinary circumstances are so well-known as the deepening of the multilevel legislation due to the devolution triggered in 1978 and the participation in the European integration. However, the legislative consequences of the globalization have not been so intensively explored. This contribution wants to critically study this scenario and to propose specific ways to intensify the democratic principle in contemporary law-making.
Although the Spanish Constitution was drafted with the idea of taking part in the EU integration process, no EU clause was introduced in constitutional text. Later attempts to introduce a specific constitutional clause showing Spanish attachment to the European project have also failed, as the Spanish Constitution has only been modified twice for very concrete purposes. As a result, the Spanish Constitution makes no reference to the EU project, it leaves a certain leeway for the Spanish Constitutional Court to decide on the integration of EU law in the national legal order and it does not provide for specific institutional arrangements making the Spanish government accountable for its European decisions, a problem that is common to the other Member States. This paper seeks to propose a modification of the Spanish Constitution introducing a European clause that would provide for better democratic control of the national government´s decisions at the European level.