¿REFORMA O ABANDONO DE LA LEGISLACIÓN BÁSICA COMO TÉCNICA DE DELIMITACIÓN DE COMPETENCIAS?

Abstract

The paper reflects on the general pattern for the allocation of shared competences in the Spanish Constitution: the general institutions of the state set the basic rules and framework and then the Autonomous Communities develop them and are responsible for their effective application. First, the paper considers from a legal and a political perspective the main effects and defects of that pattern as interpreted and applied by the Constitutional Court’s case-law. Second, it reviews some of the proposals advanced in scholarship to correct the above mentioned defects, whether or not through a constitutional amendment process. It argues that this pattern of competence allocation attracts little support from political actors other than the state institutions, and that, consequently, it is responsible for the countless complaints filed with the Constitutional Court under the legal reason of conflict of powers. The further point being made is that unless the notion of ‘basic rules’ is amended or even suppressed, whether or not the entire ‘state of autonomies’ may be reshaped through a constitutional amendment process, its effective functioning will hardly change at all.

Keywords

• competence allocation
• legislative competence
• shared competences
• Constitutional Court’s case-law
• conflicts of powers
• constitutional amendment