LA COMPETENCIA LEGISLATIVA CIVIL DE LA GENERALITAT.

Abstract

In 2006 the Statute of Autonomy of the Valencian Community underwent a reform enacted through Constitutional Act 1/2006 of 10 April. The point of the reform was to push the ceiling of Valencia's self-government competence as high as it could go and to attain recognition of the Valencian Community as a historic nationality, based on grounds including civil law enacted under historic privileges called fueros. This new take on the statute required a review of the scope of the Valencian regional government's competence to create civil law, as outlined in ruling 121/1992 of the Spanish Constitutional Court. This article takes a look at the court's review of the issue from the standpoint of two basic premises. The first is respect for the Constitutional Court's initial doctrine based approach to the fact that competence was transferred and the reason for the transfer (focusing on protecting the inherent nature of civil fueros). The second is a critique of the scope of the inherent nature of Valencian civil fueros that can be protected by the exercise of transferred powers (focusing exclusively on what the Constitutional Court itself called «custom under fueros»). This doctrine has, to all intents and purposes, drained the strength from Valencia's competence, despite the five constitutional acts since 1982 (the date of the first Statute of Autonomy of the Valencian Community) that have addressed the issue of the scope of competence as if the Valencians' fueros had never been abolished -and they were, since the majority of the Valencian people and their government institutions sided with the losing House of Habsburg against the Bourbon dynasty in the War of the Spanish Succession. This paper examines the Constitutional Court's interpretative view of the scope of the transfer of competences and explores its underlying reasons. The same view was espoused in the 2006 Statute, taking advantage of the extremely important and singular legal, material and formal nature of the statute as the basic institutional rule for an entire autonomous community and the fact that the statute belongs to what is known in Spain as «the constitutional block of rules» (the Spanish Constitution, the statutes of autonomy and the other main laws under which Spain is organised as a state of autonomous communities). The view was crystallized in two civil laws, Law 10/2007 of 20 March of the Regional Government of Valencia on the Valencian matrimonial property regime (reformed under Act 8/2009 of 4 November) and Act 5/2011 of 1 April of the Regional Government of Valencia on the family relations of children whose parents do not live together. Act 10/2007 was the subject of an appeal to the Constitutional Court by the central Spanish government (not extending to the other two laws), although the act has been in force since 1 July 2008 by virtue of the Supreme Court's decision of 12 June 2008, which ended the suspension requested by the appellant.