Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

This paper aims to show that classic theory of «public order doctrine» –if correctly defined and constitutionalised– offers a clear explanation on why the legality principle that rules for Public Administration can be softened under certain circumstances; for instance, due to a public health crisis such as the COVID-19 pandemic. In particular, it allows to assert the lawfulness of general clauses conferring powers upon the Public Administration enshrined in sanitary laws or the lawfulness of praeter legem acts. This theory is also useful to establish the extent of the said softening of the principle of legality, according to its grounds: the legal duty not to disturb public order. Moreover, this paper also shows that public order doctrine, when combined with the state of necessity, offers an explanation of the lawfulness of contra legem administrative acts. This explanation is a compromise between legal realism and the extremely formalistic case law developed by the Spanish Constitutional Court, always keeping in mind that this contra legem administrative acts pose a serious risk for civil rights.

Citizens feel that competence conflict has little effect on them, but they do feel the effect of incoordination between different public administrations. Based on real events, the interpretation and application of article 26.2 of the Local Regime Basis Law in this study prescribes the coordination by the local government of a series of services for municipalities with a population under 20.000 inhabitants, one among them being access to the population nucleus where some neighbours suffer traffic accidents and claim damages. What is the passively legitimized instance? Does the municipality have to agree with the plan proposed by the Provincial Council or the Provincial Council must propose it?

The aim of the article is commenting the climate change sentence of the german federal court and the new doctrine on positive obligations regarding fundamental rights there developed. In order to protect the rights of future generations, the tribunal makes an intertemporal or diachronical interpretation of fundamental rights that causes the partial unconstitutionality of the German Climate Change Act. This future projection of fundamental rights will be analysed as a subtype of the classical schema used to analyse protection obligations of fundamental rights in multipolar relationships, particularly suitable to face climate change problems. Finally, we will remark the importance of this doctrine for Spanish law in order to face problems such as COVID or national regulation of climate change.

Review of the book from González Ríos, Isabel: Los Entes Locales ante la transición y sostenibilidad energética. Nuevos desafíos jurídicos-administrativos para 2030-2050.Thomson Reuters Aranzadi. 2021. 423 pp. Prólogo Ángel Sánchez Blanco.This monograph analyzes, in a rigorous and complete way, the different competences and the role that local entities have to assume to be the authentic protagonists of the just energy transition that will lead us to the decarbonization of the economy. The author presents interesting criticisms of the current legal regime and new lege ferenda proposals.

The Italian NRRP, approved on 13 July 2021 by the Council of the European Union, provides for the realization of 134 investments, to be financed with the massive funds available to Italy under the NGEU, which amount to 235.1 billion euros (including 30.6 billion from a national fund). The PNRR includes 63 reforms, two of which have a «horizontal» character, as they refer to all the missions into which the Plan is divided: those of the public administration and the judiciary. In particular, the administrative reform concerns four subjects: the recruitment of personnel, the simplification of procedures, the improvement of employees’ skills and their enhancement; the digitalization. The forecasts of the PNRR on increasing administrative capacity have already received substantial implementation in legislation, especially as regards human resources. The success of the projects envisaged by the NRRP should lay the foundations for a wider transformation and innovation of the Italian administrative system, overcoming the present shortcomings.

One of the most concerned and dysfunctional issues in our political system, is political transfugism, andalso the response given to this phenomenon.Turncoating creates social alarm, skillfully promoted by parties to justify the increase of control’smechanisms to repress any dissent. In this point is necessary to ponder. Not all dissidents should beconsidered turncoats if their decissions do not cause a direct impact on government action.Recently, electoral coalitions has been increases, with scant regulation in terms of their legal regime and operation. Transfugism is also present in this coalitions, and it has there differents characteristic and profiles.That’s why the Anti-Transfugism Pact focus their attention on this problem, demanding regulatory reforms.In this paper we carry out a reflection on the concept of turncoat, exposing the agreements and pacts that political parties have reached to combat these behaviors. We also remarks the normative changes in which the agreements have been embodied.After exposing the legal regime of the electoral coalitions, we expose how the transfugism is reflectedin them and what their singularities are. We end with a reflection on the need to assess the concept ofturncoat, differentiating it from simple punctual dissidence, and the need to strengthen control mechanisms over party decisions to avoid their arbitrary use of the power to expel the member.

This paper analyzes how, for more than four decades, the self-government institutions of the Basque Country have built a stable political system within the framework of an ideological and identity-like political fragmentation environment. To study it, the article builds an analytical framework that starts from the theoretical definition of the main elements that define the models of democracy based on the classification of Lijphart (2016) that is complemented with an analysis of the characteristics of the Basque Parliament, as a central institution of the system and the model of relations with the Government in three dimensions: the impact of the proportionality of the electoral system on the resulting party system; the degree of concentration of executive power and Government-Parliament relations in the period 1980-2021.

This text aims to assess the role that municipalities play in the Portuguese Recovery and Resilience Program (PRR), in three dimensions: (i) in the definition and identification of reforms and investments to be made; (ii) in the execution of such investments, namely as beneficiaries thereof, and, finally (iii) in the management/governance of this mechanism. This theme makes sense if we bear in mind the configuration of municipalities in the Portuguese constitutional and legal framework and the express recognition of their political, administrative, and legal importance, as evidenced by the decentralization process that took place in Portugal in the last three years. Notwithstanding this importance, the truth is that the conclusion we have reached is that the Portuguese PRR translates a centralized vision and management. In fact, going against the ongoing process of administrative decentralization and against the strategic objective of increasing the weight of Local Administration in public revenues, the PRR is centralized, both in its management and in the selected intervention priorities.

The objective of this study is: 1. to analyze the legal figure of the job level, from the point of view of its usefulness for the exercise of the power of self-organization in matters of personnel management and the right to their professional promotion; 2. extract, from the legal system as a whole, those determining facts of the exercise and control of legality of the administrative discretionality, inherent to said power of self-organization, when it is applied to determine and motivate the level of job position; and 3. all this, combining the Basic State Public Function Law and the Canary Islands Regional Law, applicable to the canarian local public function.

After exposing the link between Public interest, democratic participation and the Right to the City, the paper analyzes whether the legal regime for the design and execution of public works at the local level guarantees the participation of citizens. To this end, in the first place, are exposed the different types of existing public works according to the legal framework. Subsequently, the research deeps in the impediments of the so-called ordinary local public work; finally, it descends to a specific example of local regulation to show that –in the absence of a general legal statute– participation is guaranteed when it approaches to the urban planning works legal regime. The paper concludes referring the hopeful exampleof the Catalan public works Law, which guarantees public participation even in the Public Procurement procedure.