Spain Group: Clara, Carlos, Helena & Tomás




According to what we talk during the last week, the following materials are going to be the “core” of our study. As other groups have done, we will divide our sources into primary (internal norms of any kind) and secondary (general information, doctrine, cases). Below I have grouped the sources that we have searched and I made some small descriptions of the case law and doctrine we have so that it’s easier to search. (Tomás)



Primary


Constitution


From the Constitution we shall focus on the sections -articles- that (Carlos) has highlighted:


  • Section 33:


(1)The right to private property and inheritance is recognized.
(2)The social function of these rights shall determine the limits of their content in accordance with the law.
(3)No one may be deprived of his or her property and rights, except on justified grounds of public utility or social interest and with a proper compensation in accordance with the law.



  • Section 38:


Free enterprise is recognized within the framework of a market economy. The public authorities guarantee and protect its exercise and the safeguarding of productivity in accordance with the demands of the general economy and, as the case may be, of economic planning.


  • Section 128:


(1) The entire wealth of the country in its different forms, irrespective of ownership, shall be subordinated to the general interest.
(2) Public initiative in economic activity is recognized. Essential resources or services may be reserved by law to the public sector especially in the case of monopolies. Likewise, State intervention in companies may be imposed when the public interest so demands.



  • Section 132:


(1)The law shall lay down the rules governing public and communal property, on the basis that it shall be inalienable, exempt from prescription and cannot be attached under any circumstances, and it shall also provide for the case of disaffection from public purpose.
(2)The goods of the State's public property shall be that established by law and shall, in any case, include the foreshore beaches, territorial waters and the natural resources of the exclusive economic zone and the continental shelf.
(3)The State's Domain and the National Heritage, as well as their administration, protection and preservation, shall be regulated by law.





Laws



Public Administration Patrimony Law (Translation by Clara & Helena)


  • Art. 5


(1) The goods and rights that, being of public ownership, are destined to the general use or to public service as well as those that a law confers expressly the condition of public domain, will be considered rights and goods of public domain.


  • Art. 6




The management by the public administration of goods of public domain must follow the principals below:
(a) Inalienability, unseizability, unprescribability.
(b) Adequacy and sufficiency to serve the public general interest.
(c) Effective destination to the general use.
(d) Preferent dedication to the common use in front of the private one.
(e) Responsible use of the prerogatives that this and other laws give to Public Administrations, guaranteeing their preservation and integrity.
(f) Identification and inventory control through public registers.
(g) Cooperation and collaboration among Public Administrations in the exercise of their competences over the public domain.


Brief comments:
Relation with Article 41 of the Italian Constitution: The right to private enterprise and the access to common goods sometimes can collide. To prevent this from happening, the Public Administrations have to regulate and control the use of public domain (common) goods. Articles 5 and 6 of the Public Administration Patrimony Law provide the guide for this protection.



Ley 4/1989, de 27 de marzo, de Conservación de los Espacios Naturales y de la Flora y Fauna Silvestre. (Vigente hasta el 15 de diciembre de 2007) (Tomás)

Law that Regulates the Commercial Exchange of CO2 Emmissions: This is a way in which Spain has tried to deal with the Tragedy of the Commons concerning Global Warming (Tomás)

Property and Administration of Mines (Tomás)






Secondary


General Information (Tomás)


Just “click” over the names to go to the databases:







This is very useful!!! Try to look at it!!!
  • OECD: Global statistics

  • US Library of the Congress: Political and historical analysis of Spain







Doctrine






Some of the doctrine listed below is in Spanish. Just “click” over the names to go to the file.





This paper analyzes the way in which the Spanish Constitution of 1978 regulates the right to private property, and, through this subject, some general conditions of the Spanish constitutional system. After examining the political and constitutional importance of the right to private property, the author studies Article 33 of the Spanish Constitution, turning to the historical and ideological basis of the concept of property recognized in it, and also to the meaning of the social function principle.



In this blog it is being analyzed critically how the property law work in Spain, with a special analysis over the articles of the Constitution. However, since the blog is unknown, I don’t think that we shall use it as a reliable source. Nonetheless we leave since it mentions several laws that are connected with the topic, so we can go directly to see those norms.








This is an official analysis done by the Spanish Congress concerning Article 38 of the Spanish Constitution.



This is an official analysis done by the Spanish Congress concerning Article 128 of the Spanish Constitution.



This is an official analysis done by the Spanish Congress concerning Article 132 of the Spanish Constitution.























Case Law






Although this article that Carlos has brought us has no author, it can be useful because it includes with the specifical identification code the cases in which the court analyses Article 33.




Here a Delegation of Spanish Constitutional Court participates in a Congress in Lisbon about European Constitutional Courts and it analyzes property law according to its jurisprudence. Basically, it makes special focus on Articles 33 and 128 of the Spanish Constitution.