Before a new Budget Law
According to article 134.1 of the Spanish Constitution (EC), the preparation of the General State Budget (PGE) corresponds to the Government; its examination, amendment and approval, to
According to article 134.1 of the Spanish Constitution (EC), the preparation of the General State Budget (PGE) corresponds to the Government; its examination, amendment and approval, to the General Courts. Therefore, since they are annual, the PGEs are formalized in each year in a Law that includes, according to section 2, "all the expenses and income of the state public sector".
Naturally, the exact amount of income is impossible to know before the rights of the State Public Treasury have been realized during the corresponding year; its actual amount depends on multiple circumstances. Therefore, it has always been warned that the PGE Laws contain only income forecasts that, in addition, must be adapted to the tax regulations in force at that time since this legal vehicle cannot be used to create taxes or to modify them (unless a law noun as expected). On the other hand, the meaning of the expense items is different; they are authentic authorizations of expenses that force their realization to achieve the functioning of the State. The Administration may only and must spend each year the amount allocated in the corresponding item and for the purpose stated therein. This bread for this cheese and this cheese for this bread.
A poorly informed reader could come to the hasty conclusion that the PGE inhabit the right world of legality proper to a utopian vision of the rule of law. But such a conclusion is far from the reality of things.
It is difficult for the strict execution of a Budget prepared and presented by the Government to be carried out three months before the end of the previous year and approved by the Courts, in the best of cases a few days before the end of said year; and it is practically impossible to achieve this when political circumstances force the extension of the previous Budget and the late approval of the new one . Economic, social and political situations change rapidly producing multiple incidents in public revenues and expenses, which are aggravated in a globalized world and, especially, in the European Union scenario.
The adaptation of Budgets to this reality is increasingly necessary and more urgent. A Government and an Administration corseted by the behavior of income and authorizations of expenses can see their space for political maneuvering and effective actions greatly reduced. It is necessary, therefore, to seek mechanisms of balance between the demands of legality and respect for the decisions adopted by the General Courts, on the one hand; and, on the other, the effectiveness of governmental and administrative actions in the difficult task of adapting to the reality of mutable economic data, social demands of a democracy that demand certain expenses, extraordinary urgencies or unexpected commitments in the name of political stability. The State Budget is a stronghold in a situation of continuous siege .
A classic manifestation of this problem is the constitutional limitation of the legislative initiative of the Courts once the corresponding PGE Law has been approved. From that moment, the Government may present bills on increases in expenses or decrease in income for the year; the Courts will adopt the decisions they deem pertinent. But any proposal or amendment that has such effects "will require the Government's agreement for processing" ( Article 134, paragraphs 5 and 6 EC ). If the executive branch has to comply with the rules of the game approved by the legislative branch, the latter may not change them during the year without their consent.
And a current manifestation of this problem, of a different sign, that equally affects both powers of the State is the requirement to meet the convergence criteria demanded by the European Union in defense of budgetary stability. The limitations of the volume of public debt and the amount of the structural deficit oblige both the Courts when they approve the PGE Law and the Government when it executes it. Their requirements are limited by the relativism with which the European authorities and the Member States interpret and apply these convergence criteria as well as the deadlines for their fulfillment; but it is a matter of such importance for national and European economic policy that we were forced to make a hasty reform of the EC in order to incorporate said community rules into its article 135 . The annual respect of these limits requires, throughout the year, multiple modifications that affect the amount of the anticipated income and the authorized expenses.
The function of the Courts, holders of legislative power, is losing substantial content in the scope of the PGE Laws and its stability throughout the corresponding exercise. They are provisions that in the annual period of their validity reflect an unstable legality. And, consequently, the role of the Government and its Administration is becoming increasingly important .
The Ministries of Economy and Finance, among other bodies and agencies, closely follow national and community economic data, as well as the main countries with which we have commercial and financial relations. All this information is basic for the conception and application of national economic and budgetary policies by the Government adapted to reality from the perspective of its own ideology and political interests, which inevitably lead to corrections and modifications of the corresponding PGE Law . The Courts lack such knowledge and it is not their function to design those changing policies; controlled by the parliamentary majority that has constituted the Government, they are drawn to the acceptance of the new budgetary realities.
We do not deduce from the previous considerations that the current governmental administrative powers in the budgetary scope must be strengthened and increased. The Executive already has a wide range of maneuvers. As a paradigmatic example, we refer to articles 61 to 63 of the General Budget Law (Law 47/2003). All of them refer to the attribution of powers regarding credit modifications to the Government, the Minister of Finance or the holders of the affected ministries . Recall also the breadth of the regulatory power that empowers the Government to dictate "as many provisions as are necessary for the development and execution of this Law". And let us not forget the wide margin of real freedom available to the Government and its Administration when it comes to effective budgetary execution . At this point the current controls are not effective. The political will to do or not do goes beyond the force of law of authorizations of expenses.
This General Budget Law 47/2003 responds to a traditional approach that focused its attention on the difficult technical aspects of budgetary programming, Treasury and public debt, accounting and control. The issues we have just referred to are alien to their concerns and objectives. To a large extent it is a provision that responds to an outdated scheme, a direct descendant of the valuable Law of July 1, 1911 on Administration and Accounting of the Public Treasury. But it was other times.
It must be recognized that the professors of Financial and Tax Law must assume our share of responsibility in the current situation of budgetary regulation. Although worthy efforts were made in the 60s and 70s in the study and teaching of Budget Law, this matter was almost swept away from academic concerns over the prominence acquired by the state and regional tax system after the EC. Substantial political decisions on public expenditures run through a wide territory purportedly controlled by the undetermined principles of equitable allocation, efficiency and economy (Article 31.2 EC) and by the declarations of goodwill of the current General Budget Law (in particular, Articles 26 and 27). And the CT is not, but it is expected .
It would therefore be convenient to have a serene meditation on the current situation that would allow us to elaborate a convincing scheme, on the one hand, of the function of the Courts, without underestimating the principle of budgetary legality; and on the other, the role of the Government, whose prominence in this matter is undeniable , to regulate the administrative powers necessary in the present times, which instead of being parapeted after technical difficulties and cryptic decisions will move away from discretion or arbitrariness and will be oriented towards the respect of the constitutional principles on public expenses. A kind of new budgetary pact between both powers conceived and monitored by good law as appropriate in a democracy. A challenge.
Javier Lasarte is Professor Emeritus of Financial and Tax Law.
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