Regime governing the creation by law of administrative regions
Establishment of administrative regions
Hierarchy of sources of law – different national sources
Regionalism and local self-government
Different regimes in different administrative regions
RULING Nº 709/97
10 of December of 1997
In principle, a law which, under the Constitution, must take, depending on the subject-matter being dealt with, the form of an organic law, cannot, in laying down rules, refer to an «ordinary» law, save where such reference concerns a legislative act which, at the time of its adoption, was not required to take the form of an organic law.
The actual institution of administrative regions - being dependent upon the support of the majority of the electorate, as expressed via a referendum, either at national level or within each regional area - requires prior approval of the differences in rules applicable in each region, under the terms laid down in the law establishing the administrative regions.
The binding referendum prior to the actual institution of administrative regions requires demarcation of the respective territories of the various regions. In view of the fact that once the electorate votes in favour of the proposal in the referendum, the legislators must actually institute the administrative regions, any territorial change occurring after this consultation and without a further referendum would represent a violation of the binding force of the original referendum and hence undermine the system of direct democracy.
Under the Constitution, administrative regions are to be simultaneously established by a law defining their powers, membership and competences and the working methods of their organs, where appropriate with differences from one to the other (Article 255 of the Constitution). In 1991, Parliament approved a framework law on this subject. The administrative regions, however, have never actually been instituted and the recent constitutional review (Constitutional Law no 1/97 of 20 September) amended the rules governing them, by making their institution dependent upon the approval of a «law establishing administrative regions» (an organic law which falls within the exclusive legislative competence of the Assembly of the Republic) as well as the support of the majority of the electorate, as expressed via a national referendum and a regional referendum.
The present Constitutional Court judgment concerns a preliminary review process initiated by the President of the Republic and a parliamentary group, with regard to the constitutionality of three provisions of the Law Establishing Administrative Regions (organic law approved by the Assembly of the Republic in October 1997, following the constitutional review).
The first provision in question referred, with regard to the rules governing the powers, membership and competences of administrative regions and the working methods of their organs, to the Framework Law on Administrative Regions approved, prior to the constitutional review, in the form of an «ordinary» law. The Constitutional Court did not find this provision to be unconstitutional, although it did state that any future change in the rules previously established in the form of an ordinary law must necessarily take the form of an organic law.
The second provision stated that the laws on the actual institution of each administrative region could establish different rules for each one. The Court held that this provision was unconstitutional on the ground that, under the Constitution, such differences must be enshrined in legislation (by means of a legislative act having the force of an organic law) even before the referendum is held.
Finally, the Constitutional Court ruled that the provision which allowed future alterations of administrative regions' territorial boundaries to be effected merely by means of an organic law adopted without first calling another referendum was also unconstitutional.
Five judges gave a dissenting opinion against this judgment (particularly the decision concerning the third provision).