The conservative bloc of the TC observes an "abusive use" of the decree-law: It is not a "blank check" to the Government

The magistrates maintain that the 'rider law' is a "clear example" of this "deviant" use of the decree-law

MADRID, 30 Oct. (EUROPA PRESS) -

The four judges who make up the so-called conservative bloc of the Constitutional Court (TC) have warned that "abusive use" of the decree-law is being made, specifying that since 2018 it has escalated to 50%, while at the same time they have pointed to the called 'rider law' as a "clear example" of the "deviant" use of said legislative technique.

This is how judges Ricardo Enríquez, Enrique Arnaldo, Concepción Espejel and César Tolosa express themselves in their dissenting vote on the sentence approved last week by the progressive majority of the TC that endorsed decree-law 9/2021, which modifies the Statute of Workers to "guarantee the labor rights of people dedicated to delivery in the field of digital platforms", better known as 'rider law'.

The dissenting opinion, to which Europa Press has had access, defends that the TC should have upheld the PP's appeal, appreciating that "a constitutional infraction occurred" because the requirement of "extraordinary and urgent need" required by the Magna Carta to legislate was not met. in this way, avoiding the usual parliamentary procedure.

The magistrates explain that the decree-law "can never become an ordinary way of legislating" because "the legislative power of the State is attributed to the Cortes Generales", so that its use by the Executive must be subject to "strict limits , which are a manifestation of the democratic principle and the principle of separation of powers".

Precisely, they point out, "the anomaly" for the principle of separation of powers that the use of the decree-law entails "explains that in its configuration the constituent has designed it as an exceptional regulatory power, not as a kind of blank check to the Government that allows it to share legislative power with the Cortes Generales".

For this reason, they affirm that "the exceptional power of the Government to issue decree-laws, which is opposed to the normal way of producing norms with the force of law through the parliamentary procedure, is only justified by the need to provide a prompt, immediate response, in situations of constitutional normality, to problems whose resolution does not admit the inevitable delay that the processing of the legislative procedure would entail."

"Any extensive understanding of the enabling budget of the 'extraordinary and urgent need' by the Government to expand this exceptional regulatory power (...) leads without a doubt to an abusive or deviant use of the decree-law, as in effect is happening -- and Royal Decree-Law 9/2021 is a clear example of this, even though the ruling with which we disagree has not understood it that way --", they denounce.

In this regard, they detail that "the recourse to the decree-law in recent years has turned it into the ordinary source of regulations with the rank of law, as can be verified with the simple statistical data: If from 2008 to 2017 the decree-laws "They reached 42% of the total state regulations with the status of law approved, that percentage has not stopped increasing in successive years, resulting in that from 2018 to the current moment it has risen to 50%."

Furthermore, the signatories emphasize that, "to justify this extraordinary and urgent need that allows a decree-law to be issued, stereotypical, abstract or rhetorical reasons, interchangeable with any type of norm, are not admissible."

"Nor is it possible, of course, that this court, when carrying out its control, replaces the Government in the unavoidable task that corresponds to it of justifying the extraordinary and urgent need of the case, nor that it completes the insufficiency or deficiency in the justification offered. by the Government," they add.

They also emphasize that "the enabling budget of the extraordinary and urgent need cannot be confused with the mere convenience or opportunity of the measure, nor justified by the possible beneficial effects of a measure contained in the decree-law for the general interest or the recipients." .

"In short, the mere desire or interest of the Government in the immediate entry into force of a certain reform does not constitute a justification of the extraordinary and urgent need for the decree-law," they state.

In his opinion, "the reasons offered by the Government in this case as an 'explicit and reasoned' presentation of the situation of 'extraordinary and urgent need' that led it to issue Royal Decree-Law 9/2021" are "clearly insufficient" .

In line, they reproach the progressive majority for "what it really does" is "alter and reconstruct the justification offered by the Executive when approving the decree-law", which these four magistrates describe as "selective picking of arguments."

In this sense, they state that the existence of false self-employed 'riders' has been confirmed since at least 2015 and that "the allusions to the pandemic" regarding the increase in the workload for these delivery workers "are incidental, brief and apodictic in the justification of the government".

They also point out that the "legal uncertainty in the sector" after the ruling handed down in 2020 by the Supreme Court on the 'rider' was not really such because, "according to the Government itself", "it already said what the decree-law is about." to sanction with the force of law, so that the content of the reform was none other than incorporating a judicial pronouncement into a norm with 'general effectiveness'".

"An additional circumstance of extraordinary relevance cannot also be omitted that prevents the urgency of this decree-law from being appreciated: the delay of eight months from the ruling of the Supreme Court of September 25, 2020 until the approval of the urgency rule in May 2021", they add.

They also reject the argument that this decree-law would help the post-covid economic recovery by allowing the regularization of this group of workers, arguing that, according to the data provided by the Government itself, "the impact of the reform on the economy is minimal." . At this point they quote the State lawyer, for whom the reform represents "a grain of sand" in economic recovery.

All in all, they conclude that, although "guaranteeing real and effective rights to workers and in general to people in situations of vulnerability or economic need is not only a laudable and legitimate aspiration", but "it is a constitutional imperative", " "A legitimate aspiration must be articulated through the channels provided for in the constitutional order, not outside of them."

"The goodness, opportunity or need for a reform felt by the Government is not enough to displace the legislative power of Parliament and approve a decree-law," they conclude.