The Constitutional has issued a sentence for which the autonomous communities are prevented from acting outside the state legislation on. The resolved conflict was raised between the State and the community of Aragon, which issued in April 2022 a decree law by which “exceptional and urgent measures in public procurement” of its territory were adopted. The State Advocacy reported on the possible unconstitutionality of various articles of said regulations, which led the government to raise through its president an appeal of unconstitutionality now resolved in favor of their thesis.
The appeal of unconstitutionality denounced “the invasion of the exclusive competence of the State to issue the basic legislation on administrative contracts and concessions,” provided for in article 149.1.18 of the Constitution. Specifically, it was alleged that various sections and subsections appealed from the Decree Autonomous Law extended the exceptional price review regime in public work contracts, regulated in turn in Title II of Royal Decree Law 3/2022, “to cases not provided for in it”.
The State Advocacy considered that, in the first place, the Aragonese norm introduced a regulation of the assumptions of public sector contracts that departed from those contemplated in Law 9/2017, of November 8, on Public Sector Contracts (LCSP). In his judgment- of which the vice president of the Court, Immaculate Montalbán, of the progressive sector- has been speaking, explains that the basic state legislation only covered, so that the Autonomous Law Decree invades state competence by extending said exceptional regime to other different contracts.
For this reason, the unconstitutionality and nullity of the subsection “in the mixed contracts, in the part of the work, and in the service contracts and supplies necessary for the execution of the public works” of article 2. The subsection “or the mixed contracts regarding the provision of the works” of article 3.1 and article 4 of the Decree-Law 3/2022, of the Government of Aragon, of the Government of Aragon,, of the Government of Aragon, is also declared. The same unconstitutional consideration applies to another section of the regional norm that extends the temporal efficacy of the exceptional price regime beyond the provisions of the regulations approved with basic character by the State.
Finally, the sentence also annuls another subsection of article 3 of the regional norm related to certain materials for use in public works, such as “aggregates and rocks”. The Court explains that, “starting from the basic nature of the list of materials” contemplated in Aragonese legislation, it is observed that “autonomous legislator lacks competence to expand the exceptional review regime of prices to other materials not provided for in state regulations.”
For reasons of legal certainty, the ruling limits the effects of the declaration of unconstitutionality and nullity, “being contractual matter.” The sentence also specifies that the declaration of unconstitutionality does not affect those contracts for which “the exceptional review of prices by means of a firm administrative resolution had been agreed.”
