European Commission > EJN > Legal order > Spain

Last update: 23-07-2007
Printable version Bookmark this page

Legal order - Spain

 

TABLE OF CONTENTS

1. What is the legal order in civil and commercial matters, and what are its sources? 1.
2. What is the basic guideline for the assertion of rights? 2.
3. Does the same law govern the entire national territory? 3.
4. Who can adopt rules of law? 4.
5. Are the rules of law contained in international treaties enforceable in Spain? 5.
6. When do the rules of law that make up the Spanish legal order come into force? 6.
7. What are the means of resolution of conflicts likely to arise between different sources of civil law within Spain? 7.

 

1. What is the legal order in civil and commercial matters, and what are its sources?

It is private codified law. The sources are laws, customs and general legal principles, with the last two being of secondary importance. Ignorance of the law is no excuse for not complying with it.

Case law and precedent do not create law, but criteria repeatedly laid down by some higher courts complement the legal order.

The judgments of the Constitutional Court which declare that a law or a rule with force of law is unconstitutional are generally applicable.

To consult Spanish legislation, see the database español of the Official State Gazette.

2. What is the basic guideline for the assertion of rights?

Rights must be asserted in accordance with the requirements of good faith. The law does not protect abuses of rights or anti-social assertion of rights. An abuse of a right is understood as any act or omission which, because of the intention of the perpetrator, the purpose or the circumstances in which it is carried out, manifestly exceeds the normal limits of the assertion of a right, injuring a third party.

3. Does the same law govern the entire national territory?

The national legislator is exclusively competent in all cases to deal with rules on the application and enforcement of rules of law, legal and civil relations concerning matrimony, public registers and instruments, bases of contractual obligations and rules to solve conflicts of laws.

TopTop

In relation to other matters, several Autonomous Communities have their own civil law systems covering certain matters, with rules (known as interregional law) determining in which cases the relevant civil law must be applied and in which the national Civil Code must be applied. For this reason it is necessary to check whether the Autonomous Community has its own civil law to see whether or not it applies to the specific case, although in many cases this is determined by the regional citizenship of the persons concerned (relationship between a person and a particular place, which is what determines which civil law is applicable).

To find out more about nationality and regional citizenship, visit the website.

4. Who can adopt rules of law?

In the Spanish constitutional system, legislative power resides in the Cortes Generales (Parliament, consisting of Lower and Upper Houses of Parliament - Congreso de los Diputados and Senado). In civil matters, certain Autonomous Communities which, when the 1978 Constitution came into force, retained their own Historic Civil Law (“Derecho Foral“), have recognised legislative powers through their Autonomous Parliaments to preserve, amend and implement their Historic Civil Law.

Conflicts of jurisdiction between the State and the Autonomous Communities are settled by the Constitutional Court, which determines which one has competence to adopt rules of law in the matter in question.

TopTop

The Internet links of interest in this respect are:

5. Are the rules of law contained in international treaties enforceable in Spain?

Once they are officially published in the Official State Gazette, international treaties that have been validly adopted and their rules of law form part of the Spanish legal order. Their provisions may only be derogated from, amended or suspended as provided for in the treaties themselves or in accordance with the general rules of international law.

TopTop

6. When do the rules of law that make up the Spanish legal order come into force?

Laws come into force twenty days after their publication in full in the Official State Gazette, unless otherwise stated in the laws themselves (in the case of laws adopted by the Autonomous Communities, the arrangements are laid down in the Estatuto or basic institutional law of each Autonomous Community. The general rule is that laws come into force, unless otherwise stated, twenty days after publication in the official gazettes of each Autonomous Community, although for publicity purposes they are also published in the Official State Gazette).

Rules can only be derogated from by other subsequent rules. Derogation has the scope expressly stated and always covers every aspect in which the new law diverges from the previous one, with respect to the same subject. Where a law derogating from others has been repealed, this does not mean that the provisions derogated from enter into force again.

7. What are the means of resolution of conflicts likely to arise between different sources of civil law within Spain?

The provisions in the Civil Code which determine the effects of laws and the general rules for applying them and those that regulate annulment of marriages, separation and divorce, with the exception of those relating to marriage settlements, are generally and directly applied throughout Spain. In other cases, and in full compliance with the special or regional laws in the provinces or territories in which they are in force, the Civil Code will apply as residual law in each province or territory, unless that arrangement is already the case in each of them in accordance with their own special laws.

Whether or not a case comes under common or special civil law or Autonomous law depends on regional citizenship. Anyone born of parents who have regional citizenship in the territory of common civil law, or in that of special civil law or of Autonomous law, are granted the same regional citizenship. In the case of adoption, adopted minors acquire the regional citizenship of the adoptive parents. Deprivation or suspension of exercise of parental authority, or a change of citizenship by the parents, does not affect the regional citizenship of the children. Marriage does not alter regional citizenship. However, a spouse who is not separated legally or de facto may at any time opt for the regional citizenship of the other spouse.

Conflicts arising from the coexistence of various civil laws on the national territory are solved according to the rules laid down in this respect in the Civil Code, known as interregional rules, which are simply a reflection of the rules in private international law (a reference is in fact made to the latter), with the concept of nationality being replaced by that of regional citizenship.

Further information

  • General Council of the Judiciary español, Spain (direct access to a variety of links of legal interest to citizens)
  • Ministry of Justice (legal information)

« Legal order - General information | Spain - General information »

TopTop

Last update: 23-07-2007

 
  • Community law
  • International law

  • Belgium
  • Bulgaria
  • Czech Republic
  • Denmark
  • Germany
  • Estonia
  • Ireland
  • Greece
  • Spain
  • France
  • Italy
  • Cyprus
  • Latvia
  • Lithuania
  • Luxembourg
  • Hungary
  • Malta
  • Netherlands
  • Austria
  • Poland
  • Portugal
  • Romania
  • Slovenia
  • Slovakia
  • Finland
  • Sweden
  • United Kingdom