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The constitutional review. Action of unconstitutionality

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The constitutional review is one of the constitutional processes through which the Constitutional Court guarantees the supremacy of the Constitution and examines the conformity of laws, regulatory provisions and acts with force of law of the State and the Autonomous Communities, to the Constitution.

The objective scope of constitutional review comprises:

  • a) The Statute of Autonomy and other organic laws;
  • b) Other State laws, rules and regulations with force of law;
  • c) International treaties;
  • d) Regulations of the Congress of Deputies, the Senate and the Parliament;
  • e) The laws, acts and regulations having the force of law of the Autonomous Communities;
  • f) Regulations of the Legislative Assemblies of the Autonomous Communities.

The following subjects are entitled to lodge an appeal of unconstitutionality: the Prime Minister, the Ombudsman, fifty Deputies, fifty Senators. Also The executive and legislative bodies of the Autonomous Communities are entitled to lodge an appeal of unconstitutionality against State laws, regulations and acts with force of law that may affect their own sphere of autonomy

The constitutional complaint must be filed generally within three months after the official publication of the law, regulation or enactment having the force of law challenged, by application lodged before the Constitutional Court, which must express the circumstances of identity of the persons or bodies exercising action and indentify the law, regulation or contested measure, and the constitutional precept or precepts allegedly infringed understand.

The previous deadline for appeal can be extended to nine months in constitutional challenges brought by the Prime Minister or the executive bodies of the Autonomous Communities when within the Bilateral Commission of Cooperation between the Government and the Autonomous Community actors agree the opening of negotiations to resolve the discrepancies between the parties. A modification of the controverted text can also be proposed. The Agreement of initiation of negotiations between the parties must be communicated to the Constitutional Court in the period of three months following the publication of the challenged law, regulation or enactment having the force of law in the Official Gazette and the Journal official of the Autonomous Community.

Once declared admissible the action, the Constitutional Court must communicate the pleadings to the Congress of Deputies, the Senate and the Government and, where appropriate, to the legislative and executive bodies of the Autonomous Community so that they can take part in the proceedings and make the allegations they deem appropriate. After that period, the Constitutional Court shall pass judgment.

The admission of a constitutional appeal does not produce, as a rule, the automatic suspension of the challenged provision, except when the President of the Government challenges a law, regulation or enactment having the force of law of an autonomous community and specifically demands the suspension of its validity and application. In this case, the Constitutional Court must ratify or lift the suspension within a period not exceeding five months.

The judgments in these procedures have the force of res judicata, are binding on all public authorities and produce general effect from the date of their publication in the Official Gazette.

© 2016 CONSTITUTIONAL COURT OF SPAIN