Carlos Palao: The Constitutionality of the Judicial Review Regime of the Basque “Foral Norms” on Tax Matters

Professor Carlos Palao Taboada has just published a relevant Unknownarticle on the so-called “Basque foral norms on tax matters”: “The Constitutionality of the Judicial Review Regime of the Basque Foral Norms on Tax Matters”, Revista de Contabilidad y Tributación, nº. 370, 2014, p. 51.

Foral norms fully regulate the Basque tax system, although they are usually considered “regulations” and not “parliamentary acts”. The explanation is on the First Additional Provision of the Spanish Constitution, which respects and protects the traditional Basque regime.

The full paper (in Spanish) can be purchased and downloaded here:  CEFLegal.

According to the English abstract:

“Organic Law 1/2010 carried out an important reform of the judicial review regime of «foral» norms of the Basque Historical Territories on fiscal matters, modifying to this purpose, in the first place, the Organic Law of the Constitutional Court, and together with it the Organic Law of the Judiciary and the Law on Administrative Courts. By means of this reform judicial review of those norms, previously assigned to the Administrative Courts, was transferred to the Constitutional Court. The former competence of the Administrative Courts was based on the characteriza­ tion of «foral» norms as administrative regulations, although numerous authors and the case law of the Supreme Court and the Constitutional Court acknowledge the singularity of those norms, which do not easily fit either into such category or into that of law. These difficulties of characterization raise some questions as to the constitutionality of Organic Law 1/2010, on the grounds of which the Autonomous Communities of La Rioja and Castile and León, neighbors to the Basque Country, have challenged it before the Constitutional Court. The present article examines those questions, coming to the conclusion that they do not provide sufficient basis to the thesis that Organic Law 1/2010 is unconstitutional”.

In my view, Professor Palao not only proves that the reform is constitutional, but that it provides the better solution to take into account the legal nature of foral tax norms. The reason is that foral tax norms are not regulations but provisions with force of law based on the First Additional Provision of the Spanish Constitution (“The Constitution protects and respects the historic rights of the territories with fora”) and on the Parliamentary Act on the Economic Agreement between the Spanish State and the Basque Country.

Thank you, dear Carlos for this inspiring paper.

Pedro Herrera

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