Although I could control myself during this time, The avalanche of confusing information, inaccurate or false directly on the legal aspects of this issue at the end led me to write this brief overview of the topic.
Go ahead do not intend to defend or criticize the approach adopted by the Government, the story is a political issue on which everyone has their opinion, only give a certain legal basis for these opinions are well formed.
Also of note is that marking the first time this circumstance since the adoption of the English Constitution, our Constitutional Court has not had the opportunity to comment on the matter, why all said here and go beyond the mere expression of legislation may be amended at the time by the only valid interpreter of the Constitution.
Finally, I must clarify that in the time of writing this know, for lack of time and interest, the wording of the decrees in this case has given the government, so only try to determine whether it was possible in this case order the state of alarm and what its consequences would be, but in an abstract. Starting
as usual legal texts, parts of Article 116 of the English Constitution, which governs among others the state of alarm:
" 1. An organic law shall regulate the states of alarm, emergency and siege, and the powers and limit. 
2. The alarm will declared by the Government by decree agreed in Council of Ministers within fifteen days, informing the Congress of Deputies, which met immediately, and without whose consent shall not be extended that deadline. The decree indicates the territory to extend the effects of the declaration.
3. The state of emergency is declared by the Government by decree agreed in Council of Ministers, with the authorization of the Congress of Deputies. The authorization and proclamation of a state of emergency must specifically state the effects thereof, the territory to which extends the duration, not exceeding thirty days, renewable for another period, with the same requirements.
4. The state of siege is declared by the absolute majority of the House of Representatives a proposal solely on the Government. The Congress shall determine its territorial, duration and conditions.
5. This shall not apply to the dissolution of Congress while any of the states included in this article, the Chambers being automatically convoked if they are not in session. Functioning, as well as the other constitutional powers of the state, not to be interrupted for the duration of these states. Dissolved
Congress or the expiry of their mandate, if there were any situations that give rise to any of these states, the powers of Congress shall be assumed by the County Council Permanent.
6. The declaration of a state of alarm, emergency and siege shall not affect the principle of responsibility of the Government and its agents as recognized in the Constitution and the laws . "
This is the only legal text quoted in most news articles and opinion I've read these days, though, as can be seen, only regulates the issue and refers to an organic law. This is the Law 4 / 1981, of June 1, state of alert, emergency and site, published in the BOE of June 5, 1981. Extracting its contents we find the following (Art. 4 ff):
" 4 .- The Government, in exercise of the powers granted the Article 116.2 of the Constitution may declare state of alarm, in whole or part of the country, whenever any of the following serious alterations of normality: (....)
C) cessation of essential public services to the community, if not ensure the provisions of Articles 28.2 and 37.2 of the Constitution , and either of other circumstances or situations contained in this article. [ie, it refers specifically to the constitutional provisions governing the right to strike and collective bargaining, as the Constitution limits to these rights, they do not have the character of Fundamental {Vid. final error correction}, precisely the maintenance of essential basic services to the community]. (....)
Article 6
1. The declaration of a state of alarm is carried out by decree agreed in Council of Ministers.
2. The decree determine the territorial scope, duration and effects of the state of emergency, which shall not exceed fifteen days. May be extended only with the express authorization of the Congress of Deputies, which in this case will establish the extent and the conditions prevailing during the extension.
Article 7 For the purpose of alarm status shall be the competent Authority or Government, by delegation, the President of the Autonomous Community where the statement affects only all or part of the territory of a Community.
Article 8
1. The Government shall report to the Congress of Deputies of the declaration of a state of alarm and will provide the information as required.
2. The Government will also report to the Congress of Deputies of decrees issued during the term of the state of emergency in connection with this.
Article 9
1. For the declaration of a state alarm all the civil authorities of the Public Administration of the territory affected by the declaration, members of the Police of the Autonomous Communities and local corporations, and other officials and employees to serve them, will be under orders direct the competent authority as necessary to protect people, property and places, may impose special services for its duration or nature.
(.....)
Article 10
1. Failure or resistance to the orders of the competent authority in the state of alert will be punished in accordance with the provisions of the law.
2. If these acts were committed by officials, the Authority may immediately suspend the exercise of their duties, from, in case the fault of both the Judge and will notify the supervisor, appropriate for the purposes of disciplinary proceedings.
3. if committed by authorities, the powers of these may be necessary to carry out the measures agreed in statement execution alarm status may be borne by the competent authority during their term.
Article 11 Notwithstanding the provisions of the preceding article, the decree declaring a state of alarm, or events during their lifetime are issued, they shall consider the following measures :
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- a) Limit the movement and stay of persons or vehicles at times and places, or conditional on compliance with certain requirements.
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- b) temporary requisition practice all kinds of goods and impose mandatory personal benefits.
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- c) intervene and occupy temporarily industries, factories, shops, farms or premises of any nature, except private homes, taking notice to the ministries concerned.
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- d) limit or ration the use of services or the use of staples.
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- e) Provide the necessary orders to ensure market supply and operation of services and production facilities covered by paragraph d) of Article 4. º.
Article 12
1. In the circumstances referred to in paragraphs a) and b) of Art. 4. No, the Competent Authority may adopt its own, as appropriate, in addition to the measures set out in previous articles, the rules laid down in the fight against infectious diseases, environmental protection, on water and wildland fire.
2. the cases mentioned in paragraphs c) and d) of Art. 4. No government intervention may decide to companies or services, and the mobilization of its staff, in order to ensure its operation . shall apply to personnel mobilized local laws governing mobilization, in any case, be an extra on the provisions of this Article . "
Finally, in Article 2:
" The statement state of alert, emergency or site will be published immediately in the "Official Gazette" and widespread obligatory for all public media and private to be determined, and shall come into force from the very moment of its publication therein. Broadcast will also be mandatory under the provisions issued by the competent authority for the duration of each such state s. "
So what was said in this article that:
- The state of alarm is constitutionally provided for the case of irregular exercise of the right to strike and collective bargaining (which are not fundamental rights [ Vid. final error correction]) affecting essential services to the community.
- Se establece por Decreto del Consejo de Ministros, que habrá de ser inmediatamente publicado en el BOE y en los medios públicos de Comunicación, además de poder anunciarse en los privados, regulándose separadamente su dación de cuenta al Congreso de los Diputados (que no está sujeta a plazo, estableciéndose por la Constitución únicamente que se hará "inmediatamente", término jurídico evidentemente indeterminado), y su prórroga, que deberá ser aprobada por el Congreso, por lo que ambos actos no han de ser necesariamente simultáneos.
- La prórroga, decretada por el Congreso, no se condiciona o limita, y puede tener efectos distintos a the original decree [ie, criteria are social and political opportunity, but not legal, which determine the extension].
- Unlike the state of emergency, is not limited neither the number nor the duration of / s extension / s.
- declared a state of alarm, the government becomes the Competent Authority.
- public officials become dependent on that authority not only to Civil Authorities, but also the bodies and forces and state security officials and authorities of the Autonomous Communities and Local Government. They can also, in cases of risk to essential services community be mobilized.
seems, of the foregoing, without regard to a political opportunity, the path taken by the Government is set to our legal system, if we consider that it was a situation of cessation of essential services to the community, including mobilization of the drivers, specifically under our constitutional system. In fact, there seems no basis, except error, to determine as some have done that can only be an extension, at least from a legal standpoint.
Being the way I mentioned above criterion, which is without prejudice of a better founded in law.
To tackle this issue, I would like to appeal to our political representatives (Gaspar, uncle), to be well informed about the characteristics of our system before standing for election, and if not possible, at least inform themselves before talking about such serious issues that affect many people.
Corrigendum:
After finishing the previous post, I realized that on two occasions had stated that the right to strike and collective bargaining "are not fundamental rights , strong expression but totally inaccurate. Although there might be done away without these errors, I will leave instead make the following points:
- Both articles 28 and 37 are in Chapter 2 of Title I of the Constitution, the first in the first section and to bargain collectively in the second section.
- This means that, in accordance with Article 53 of the Constitution, the right to strike can be directly invoked before the courts and appealed for protection, while Article 37 " has to be regulated by law, which in any case must respect their essential content "(which seem to have forgotten some of the popes economy), while not directly applicable.
- such rights, notwithstanding the above, can not be suspended except in the States of Exception and Site, as provided in Article 55 of the EC. This is not inconsistent with the possibility of mobilization in the event of an alarm state, since this is not a general suspension of law, which is what is referred to in Article 55.
- It is true that given the ambiguous wording of the Constitution, some authors consider that these are not "fundamental rights" but "Public freedoms", but since then there is no differentiation in their regulation, I prefer not to dwell on this statement purely academic, especially when most authors consider that these are "rights" work and not "freedom."
I humbly apologize to those who have led to confusion.
