CHAPTER 3: LAW 5/2009 OF THE RESOURCES AGAINST THE NEGATIVE CLASSIFICATION OF THE TITLES OR THE SPECIFIC CLAUSES IN MATTER OF CATALAN LAW WHICH MUST BE REGISTERED IN THE PROPERTY REGISTRATION, THE BUSINESS REGISTRATION OR THE PERSONAL PROPERTY REGISTRATION OFFICES OF CATALONIA

The written rules that regulate relations as citizens are called Civil Law. In Spain, the Civil Law is very old, it comes from the Roman era. But in Catalonia, Catalan Civil Law is much newer and is just being developed.

It is as important for citizens to have laws that regulate their relationships, as to know what interpretation they must give them.

In the Property Registration, the Business Registration or the Real Estate Offices titles reflecting operations that the citizens carry out registered: buying and selling, creation of societies, etc.

In the State, the body that is responsible for interpreting this civil right and verifing these titles (deeds) meet the requirements of state civil law, is the General Directorate of Registries and Notaries.

In Catalonia, the body designed to carryout these interpretations is the General Directorate of Law and Legal Entities.

The problem that arises, and that this law intends to solve, is the fact that, in many cases, the regulation that establishes the requirements for the registration of a title is partly state, partly Catalan. This means that many times the General Directorate of Law and Legal Entities cannot interpret Catalan civil law because it is necessary to also take into account the state legislation, so the General Directorate of Registries and Notaries ends up resolving the matter.

 

This law, therefore, intendeds to establish that the General Directorate of Law and Legal Entities resolves the problems generated from the registration of titles of the General Direction of Rights and Legal Entities, if there is any reference to Catalan regulations, even if there are also references to state regulations, in order to avoid different interpretations that these two agencies, the state and the autonomous community, may do, contributing to improving the legal security of Catalan citizens.

In this sense, and from a point of view of distribution of competences, article 147.2 of the Statute of Autonomy confers the Generalitat the exclusive power concerning the ruling of resources on the qualification of titles or the specific clauses in matter of Catalan law that must be registered in the Property Registration, the Business Registration or the Real Estate Offices of Catalonia.

This article implies that in this specific field (the regulation of this type of resources), the Generalitat has exclusive competence, that is, the power to legislate, the regulation and the executive function.

The main objective of the assumption of this competence is to preserve and protect Catalan law.

Thus, and in particular, article 3.4 of this Law stipulated that:

If several interested parties choose to each bring a governmental resource and at least one is based on regulations of the Catalan law or its infraction, the General Direction of Law and Legal Entities must substantiate all the resources in one piece and will solve them cumulatively, including those that do not plead the infraction of a rule of Catalan law.

On February 8, 2010, the State Government filed a complaint of unconstitutionality against certain articles of this law that was admitted to the process on October 6, 2015. The law, in the contested articles, was suspended, therefore, left it without any effect. On July 29, 2010, the Constitutional Court agreed to maintain this suspension. Finally, on January 16, 2014 the High Court issued a ruling, declaring the unconstitutionality of article 3.4 in these sections “and at least one is based on norms of Catalan law …” and “including those who do not allege the violation of a rule of Catalan law. ”

The Constitutional Court does not object to the Generalitat de Cataluña having its powers in matters of Catalan civil law, although it specifies that it is circumscribed to the functions of conservation, modification and development of the Catalan civil law, always within the limits established by the Constitution.

However, it considers that article 3.4 is excesive since it attributes to an autonomous body, the General Directorate of Law and Legal Entities, the resolution of resources although they are mainly based on State law even if they have some reference to the Catalan laws. And it considers that this possibility is against article 147.2 of the Statute as well as of the distribution of powers of article 149.1.8 of the Constitution.

In this sense, it can be concluded that the Constitutional Court considers that preserving this distribution of powers, avoiding possible or hypothetical interference in the future by autonomous bodies, prevails before the objective of the Catalan Parliament to try to achieve a unified doctrine in terms of the application of the Catalan civil law to guarantee the legal security of the Catalans.