Reserva de ley y correlación entre las infracciones y sus sanciones: ¿es constitucional el art. 117.1 de la Ley de Aguas?

Abstract

This paper focus its attention in a specific legal issue that has not been deeply studied: if the legislative bodies can refer to governmental regulations the different level of infringements according to their seriousness. After analyzing the requirements of the constitutional legal reserve of administrative fines, its projection on the classification of legal infringements in different degrees, the incorporation of such requirements in the Law of the Legal Regime of the Public Sector, and the jurisprudence of the Constitutional Court and the Supreme Court, it is concluded that if the determination of administrative fines depends on the legal classification of the seriousness of the infringements, such classification is a matter reserved to the Law. Therefore, the legal provisions that refer without effective limits such classification to governmental regulations are not admissible and, specifically, current article 117.1 of the Consolidated Text of Water Law is unconstitutional, which is the archetype, and almost the only remainder, of the so called blank legal entitlement for governmental regulation of administrative sanctions.