SOBRE LA RETROACTIVIDAD DE LAS NORMAS A LOS 40 AÑOS DE LA CONSTITUCIÓN ESPAÑOLA (original) (raw)
This article seeks to demonstrate that the constitutional treatment of the retroactivity issue has simplified and made manageable a problem which was almost irresoluble for legal scholarship. The article analyses the content of four different constitutional provisions that have a bearing upon this issue: (i) the recognition of a fundamental right to the non-retroactivity of rules [Article 25 of the Spanish Constitution]; (ii) the constitutional rule that enshrines the principle of non-retroactivity of “punitive measures that are unfavourable to or restrict individual rights” [Article 9(3) of the Spanish Constitution]; iii) the principle of legitimate expectations that derives from the principle of legal certainty [Article 9(3) of the Spanish Constitution], which requires the concurrence of opposing principles, of sufficient weight, in order to recognize the retroactivity of rules belonging to the realm of economic regulation; (iv) the constitutional regime that frames the fundamental right to property [Article 33(1) of the Spanish Constitution], since, in this context, the constitutional provisions on the “social function” of the right to property and on the “guarantees” attached to the power of “expropriation” or “eminent domain” take precedence over the limitations on the retroactivity of rules stemming for the principle of legitimate expectations.
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