The publication in the BOE, on December 29, of Law 22/2021, of December 28, on General State Budgets for the year 2022 -the PGE-, beyond the macroeconomic or political analysis that it deserves, has raised a new controversy, framed fully in what we lawyers call legislative technique, that is, the procedure for the elaboration of the norms and their formal and material adaptation to the provisions of the Constitution and the rest of the legal system.
This controversy is the absence of the classical one —by common and mandatory— final provision regarding entry into force. A non-minor provision, nuclear in a State of law, inasmuch as it defines the principle of legality from the temporal perspective, thus guaranteeing that the publicity of the norms established in the article 9.3 of our Constitution have applicative effectiveness and, therefore, that legal security is not broken. Without this provision, in short, citizens do not know when any approved and published norm can affect them.
Aware of this, our legal tradition designed an order presided over by that guarantee of publicity and its logical correlate of effectiveness that, in addition, it sought to avoid any possible arbitrary use of the law by the public powers.
Thus, the Article 2.1 of the Civil Code notes: “The laws will come into force twenty days after its complete publication in the Official State Gazette, if they do not provide otherwise ”. That ‘other thing’, in the case of budgetary legislation, has an important nuance in the General State Budget Law, since this is, as the political law par excellence, a special law because it is specialized, insofar as it has, unlike any other law, a clear annual seasonality defined —except for an extension— and a specific drafting procedure that brings together the wills of two of the three branches of the State – the executive for its drafting and the legislative for its amendment and approval.
The annual nature of the budgets, collected in the article 134.2 of the Constitution, is nothing more than a reference to its specific temporary nature, which does not prevent to indicate the moment of the entry into force of the law. Especially, if one takes into account that the budgets they do apply retroactively from approvalThis has happened countless times, as in 2012, when those for 2011 were extended until the 2012 budgets were approved in June of that year with effect from January 1 of that year.
With this approach, it is understood that, although the Constitution itself states, in its article 134.4, that “If the Budget Law is not approved before the first day of the corresponding fiscal year, will be considered automatically extended the budgets of the previous fiscal year until the approval of the new ones ”, this prior approval before December 31 does not imply, ‘per se’, that any Budget Law that meets this constitutional requirement would be, ‘ope legis’, immediately in force with its sole approval, regardless of whether it establishes its entry into force.
This specific nature, this formal and material specificity of the Budget Law is not obvious, in short, the need to contain a ‘tempus’ regarding its entry into force. The current budgets for 2021, approved on December 30 and published on the 31st, for example, they affirm in their forty-sixth final provision, relative to the entry into force, that “This law will enter into force the day after its publication in the Official State Gazette.”
Therefore, it is not understood that the Ministry of Finance insists that many of the budgets approved in our democratic history they have skipped that provision because “when budgets are approved before January 1, the final provision for entry into force is not necessary.” The last ones, at least, no. And if so, the only thing that would manifest is an incorrect practice that for a long time has been ignored in the consideration of its little importance, a defect in legislative technique attributable both to the legal services of the Courts and to the Government itself.
Fernando H. Valls
In fact, Normative Technique Guidelines approved by the Government in 2005, that is, the criteria that should be followed in the elaboration of the standards, expressly state: “In the event that no indication is established, the standard will enter into force 20 days after its publication in the Bulletin Official of the State, in accordance with the provisions of the Civil Code ”.
The provision regarding entry into force, therefore, is essential and irreplaceable, since it does not seek to state the obvious, but rather avoid misleading and fraudulent use subject to criteria of political opportunity in terms of effectiveness. Without it, therefore, it is appropriate to refer to article 2.1 and its ‘vacatio legis’ of the regulations and, consequently, count 20 days from the publication on December 29.
Ultimately, there is no other interpretation than the one indicated: the general state budgets for 2022 are not yet in force, and They won’t be until January 18. Until then, we have and will have the limited temporary extension of the 2021 budgets. And this issue, apart from other considerations, has a decisive impact on all those regulations whose effectiveness depends on the entry into force of the budgets.
*David Delgado Ramos. Professor of Constitutional Law. Rey Juan Carlos University.