Limiting jus singulare in the latest doctrine of the Spanish Constitutional Court

Abstract

The aim of this work is to analyse the most recent jurisprudence of the Spanish Constitutional Court (SCC) on the limits to jus singulare, of which the Autonomous Community of Castille and Leon, presuming an intended invulnerability of enacted law, made extensive use during the past decade to elude judicial control over administrative action. Apart from strengthening the limits to jus singulare already established in the Rumasa case doctrine, the SCC's jurisprudence has systematised the different variants of jus singulare into two types: self-enforcing statutes and non-self-enforcing statutes. Therefore, the constitutionality parameters of article 24.1 of the Spanish Constitution (SC) have been more strictly observed in the first type.

To do so, the SCC invoked the doctrine of the ECJ, which rejects the utilisation of enacted law in order to dodge the judicial review of EU law. Since ordinary judges' possibility to file a claim of unconstitutionality does no longer guarantee the interested parties' right to a fair trial, article 24.1 of the SC has been more strictly enforced in respect of singular self-enforcing statutes on two grounds: firstly, their self-enforcing nature deprive the interested parties of judicial review; secondly, due to the principle followed by the SCC to distinguish between rules and administrative acts, singular self-enforcing statutes, only in theory, are not considered rules by the SCC's jurisprudence. Besides, after assessing the constitutionality of statutory reservations established in ordinary laws, the possibility of inferring administrative reservations from articles 24.1 and 97 of the SC is discussed in the light of this latest jurisprudence.