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Conflicts of powers

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Positive conflicts of powers

Positive conflicts of jurisdiction oppose the State with one or more Autonomous Communities or two or more autonomous communities among them. The Government or the executive bodies of the Autonomous Communities can promote them when they consider that a provision, resolution or act without the force of law of an autonomous community or the State, or the omission of such provisions, resolutions or acts, does not respect the constitutional order of powers established in the Constitution, the Statutes of Autonomy or organic laws enacted to delineate powers between the State and the Autonomous Communities.

The Government may lodge directly to the Constitutional Court a positive conflict of jurisdiction or use the previous requirement of incompetence to the Autonomous Community to revoke or abolish the act or provision which considers violates State powers. The deadline to lodge the conflict directly or use the incompetence requirement is of two months from the publication or communication of the act or provision allegedly dictated out of the own legal sphere of competence. In the event that the Autonomous Community required fails to fulfill the requirement of incompetence within a month, the Government has a period of one month from the notification of the rejection of the request or the end of the period available to the Autonomous Community required to answer it, to raise the conflict before the Constitutional Court. The complaint must contain the certification of the unsuccessful requirement of incompetence and the allegation of legal grounds on which the claim is based.

The executive bodies of the Autonomous Communities, before lodging the conflict of jurisdiction before the Constitutional Court, should require, within two months, the State or the Autonomous Community author of the act or disposition which competence is contested, the repeal or annulment of it. If the requirement of incompetence is not attended within one month, the executive body of the Autonomous Community has a period of one month from the notification of the rejection of the requeruirement or the end of the period available to the executing authority to answer it, to present a conflict before the Constitutional Court, which must incluce the certification of the unsuccessful compliance with the requirement and the allegation of legal grounds on which the claim is based.

The Constitutional Court must, within ten days, notify the Government or the executive body of the Autonomous Community of the initiation of the conflict, fixing a period which shall not exceed twenty days to forward the arguments he considers suitable. The judgment resolving the conflict will declare the allocation of the disputed competence and shall, if appropriate, dictate the annulment of the provision, resolution or act that caused the conflict of competence.

The Government, in exercise of the power conferred by Article 161.2 of the Constitution, can call upon the lodging of the conflict, the suspension of the contested provision, resolution or act. This will determine the immediate suspension of its validity and should the Constitutional Court to rule within five months, after hearing the parties, on lifting or maintaining the suspension. In other cases, the bodywhich promotes the conflict of jurisdiction may request the suspension of the provision, resolution or act invoking causation fo damages impossible or difficult to repair and the Constitutional Court may approve or reject the suspension interested.

Negative conflicts of powers

Negative conflicts of jurisdiction may be raised by a natural or legal person and by the Government against the executive body of an Autonomous Community.

When a State or Autonomous Community body declines jurisdiction to resolve any claim made by a natural or legal person, by considering that power corresponds to an autonomous Community or the State or to a different Autonomous Community different from the one before such a claim was lodged , the person concerned after administrative remedies exhausted, can lodge its claim to the Government or to the executive body of the Autonomous Community which the decision declared as competent. If the Administration secondly requested also inhibits, declines jurisdiction or does not pronounce an affirmative decision within one month, the applicant within one month of the notification of the plea or if that period has elapsed without having express decision, the claim before the Constitutional Court, asking the resolution of the conflict, shall be lodged. If the Court finds that the refusal of the authorities involved is based on an interpretation of constitutional principles or provisions contained in Statutes of Autonomy or organic or ordinary laws defining the areas of authority of the State and the Autonomous Communities, it will declare by Court Decree the existence of the conflict and after issuing that order, the applicant and the authorities involved will be called to submit their observations. After that the Court must issue a judgement in which declares what is the competent authority.

The Government may also raise negative conflict of jurisdiction when having require the executive body of an Autonomous Community to exercise powers, this requirement is disregarded by the executing authority either becasuse it considers itself not competent or because it continues its inactivity. Within one month following the date on which expressly or implicitly has rejected the request of the Government, it may lodge before the Constitutional Court the negative conflict. Complaint must indicate the constitutional, statutory or legal provisions which mandates the Autonomous Community to exercise their powers. Once communicated the lodging of the conflict to the executive body of the Autonomous Community, it has one month to formulate allegations. The Courjudgement that must contain one of the following statements:

  • a) The statement that the request is legally sound, which will lead to the establishment of a time limit within which the Autonomous Community will exercise the required power;
  • b) The statement that the request is inadmissible.
© 2016 CONSTITUTIONAL COURT OF SPAIN