Unchallengeability of Regional Legislative acts by Governments of the same Autonomous Communitiy: Constitutional Case Law… and a “missing” Legal Provision (Article 32.3 of the LOTC)

Abstract

This paper reviews the Constitutional Court’s case law denying the governments of autonomous communities the right to challenge the constitutionality of legislative acts endorsed by the respective autonomic legislature. It also focuses on how to legally “rescue” Article 32.3 of the Act governing the Constitutional Court (LOTC in Spanish), which would have allowed territorial governments to file before the Constitutional Court these “intra-autonomic” appeals. This work also addresses and verifies that, as a matter of fact, Article 32.3 of the LOTC was actually endorsed by the Parliament as part of the full text of this Organic Act, but, interestingly, was never officially published in the Official State Gazette (BOE in Spanish). It also reviews the stance adopted by the most recent Constitutional Court’s case law on whether Article 32.3 of the LOTC is applicable to decide the issue, as well as the grounds of such a decision, together with the development and formulation of proposals on how to properly address (or, where applicable, re-address) and legally tackle this important constitutional problem, both in terms of the model of territorial organisation and of the Spanish model of constitutional justice, not to mention the system of sources of law.

Keywords

• constitutional justice
• territorial organisation
• challengeability of atuonomic legislative acts