Prior appeal of unconstitutionality according to the Organic Law 12/2015: an expected return, an insufficient amendment

Abstract

Abstract

This paper analyzes the Organic Law 12/2015 of 22 September, that recovers the figure of prior appeal of unconstitutionality with regard to Statutes of Autonomy and its amendments. Such law finds its immediate antecedents in two parliamentary initiatives presented in 2014 by them Popular and Socialist groups (that finally agreed to its content) and its preceding more remote in the previous regulation of prior appeal by the Organic Law 2/1979 of 3 October, with which also keeps great similarity, fundamentally with regard to legitimation, time of interposing the resource, or its procedure. The comparison among these four versions of the previous resource is first conducted from a perspective more descriptive, then giving way to an approach more critical about the content of the Organic Law 12/2015, and some of raised problems, both by the content of the reform which re-introduces the previous resource (legitimation, deadline for ruling, coexistence with the successive control), as by all what in it is check of less (extension of the previous resource to organic laws and another rules). The amendments of statutes of autonomy undertaken in Spain since 2006, reopened the debate on prior appeal of unconstitutionality (which, until its suppression in 1985 was possible for them statutes of autonomy and them other organic laws) and the need of its recovery. The Organic Law 12/2015 covers only partially the expectative, because it introduces a reduced and shortly renovated prior appeal, limiting its object to the statutes of autonomy and its amendments, and not extending it to other organic laws, constitutional reforms and other rules, which would provide significant advantages in comparison with successive control. Any solution adopted for controlling the constitutionality of laws is improvable. One of the ways to strengthen the Spanish model would be the introduction of a previous, preceptive and obligatory control of constitutionality for certain normative rules. In this sense, the article raises proposals that could be used to keep open the debate, face to any future reforms.