The @normality of 2020
and the vaccine against political parties
Leopoldo Cólogan
We are living in a period which should remind us how important it is to improve the separation of powers in order to protect ourselves from the special interests of political parties, whatever they may be, and to safeguard a democracy which allows people to exercise liberty, which is personal and not collective, and allows them to fulfil themselves and be happy through their efforts.
A regulation issued by a council of ministers is not the same, nor does it have the same legitimacy, as a regulation issued by the General Courts; the former represents the executive power, the latter the legislative power, with the third being the judicial power. Realising this and applying it is true democratic culture.
Indeed, in keeping with the aforementioned separation of powers, any government action in the legislative sphere must be justified, and the introduction of the new Bankruptcy Act in Royal Legislative Decree 1/2020 of 5 May, published in the Official State Gazette of 7 May 2020, which comes into force on 1 September 2020, includes a justification where it states that “in drafting the consolidated text, the Government not only aimed to provide a set of rules that was systematic as well as clear and intelligible. The revised text may not include substantive amendments to the amended legal framework, nor may it introduce new legal mandates that did not exist before or exclude existing legal mandates. However, within the limits set by the courts.”
One of the key aspects of this regulation is that it devotes a chapter to pre-bankruptcy, formerly Article 5a, i.e. to the communication of the initiation of negotiations with creditors that should be made by the debtor who is currently in a state of insolvency within two months from the time he/she becomes aware or should become aware of this situation, thus avoiding the initiation of proceedings against his/her assets and rights.
The foregoing is notwithstanding the extension by means of Royal Decree Act 16/2020 of 28 April on procedural and organisational measures to deal with COVID-19 in the field of the Administration of Justice, regarding the suspension of the obligation to apply for a declaration of bankruptcy until 31 December 2020, as well as the provision that those of the current financial year will not be taken into account for the purposes of the legal cause of dissolution due to losses.
This should also act as a reminder that personal relationships humanise professions, jobs and training in schools, and that digitalisation is only a means to help us to be more efficient. This is innovation.
We must also be mindful of how important it is to treat people as adults, providing them with real and responsible information at all times, enabling each person to take action. The opposite would be to misinform and make personal decisions for them.
It should be noted that the fact that part of Royal Decree Act 21/2020 of 9 June on urgent prevention, containment and coordination measures to deal with the health crisis caused by COVID-19 can be regarded as structural reform does not in itself prevent the use of a decree act, as the Constitutional Court has sometimes maintained, as indicated in the Introduction to the Royal Decree Act, which entered into force on 11 June 2020.
"[...] it is worth noting that a work-life balance is not an attribute of civil servants or employees, but is a right to which everyone, including employers, the self-employed and professionals, should be entitled. "
This regulation is designed to prevent possible outbreaks and is issued by the government in order to overcome phase III of the so-called “Plan for the Transition to a New Normality”. It states that all citizens should take the necessary measures to prevent generating risks for the spread of COVID-19 disease, as well as their own exposure to such risks.
It makes the wearing of masks compulsory in public places whenever it is not possible to maintain a safe distance of at least 1.5 metres between persons, and in public and additional private passenger transport in vehicles with up to nine seats, including the driver, if the occupants of the passenger vehicles do not live in the same household. Non-compliance is punishable with a fine of up to €100.
The following is imposed on employers, the self-employed and professionals: They must adopt ventilation, cleaning and disinfection measures, provide workers with water and soap, or hydro-alcoholic gels or virucidal disinfectants, authorised and registered by the Ministry of Health for hand cleaning; adopt measures to avoid the mass gathering of people, both workers and clients or users, in work places during the time slots when there is likely to be the greatest influx of people; and adopt measures for the progressive return to work on site and the promotion of the use of remote work whenever this is possible given the nature of the work.
These principles must not be forgotten, and if something is done contrary to principles, it is not the right solution and another route must be found. Not everything that can be done should be done and those who are part of the solution rather than part of the problem should always be listened to. This includes employers, the self-employed, professionals, workers and persons affected by a given situation.
In this respect, it is worth noting that a work-life balance is not an attribute of civil servants or employees, but is a right to which everyone, including employers, the self-employed and professionals, should be entitled. In fact, the Supreme Court, Third Chamber for Contentious Administrative Proceedings, Section 4a, confirmed in its Judgement 684/2020 of 5 June 2020, Motion 5571/2017, that Madrid City Council’s argument that a fixed day provides an adequate work-life balance, controlling the day off and that any licence purchaser is aware from the first moment what the taxi’s day off is within the organisational powers under the regulatory framework in the said contested matter.
This is a reminder that the legal sector’s achievement of making August a non-working month symbolised the achievement of the right to a work-life balance for employers, the self-employed and professionals in this sector, which has now been altered by Royal Decree Act 16/2020 of 28 April on procedural and organisational measures to deal with COVID-19 in the field of the Administration of Justice, which makes 11 to 31 August 2020 available for all legal proceedings. Saturdays, Sundays and public holidays are excluded from this provision, except for those legal proceedings for which these days are business days pursuant to procedural legislation.
All in all, the separation of powers is more than just a few words, it is a shield for democracy and people’s happiness, which represents the vaccine that protects us from the excess of power and control that a political party could accumulate.