On 2 June 2022, the Spanish Constitutional Court upheld the exception of unconstitutionality against Article 10.8 of the Law of the Contentious Jurisdiction (Ley de la Jurisdicción Contencioso-Administrativa), amended by Law 3/2020, which had established that general scope health measures restrictive of fundamental rights adopted by regional authorities should be authorized by courts (the High Courts of Justice of the country’s autonomous communities) to be fully effective.
The Constitutional Court upheld the exception of constitutionality lodged by the High Court of Justice of Aragón. It held that this special judicial proceeding infringed the principle of separation of powers, by attributing courts some tasks that do not fall within the scope of their judicial function. Regulatory powers are conferred exclusively to the government, whose decisions do not need the courts’ endorsement to be effective. These authorization process converts the regulatory powers in a sort of competence shared by the government and judges, the latter thus being a kind of co-governing party. Therefore, the Constitutional Court declared the provision requiring such judicial authorization unconstitutional.
