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The crucial role of the principle of proportionality in the fundamental rights’ adjudication is often addressed by the literature451. It has been argued that this principle serves the purpose to structure the legal reasoning needed to determine, or redefine, the essential content of fundamental rights452. The
446 Prieto Sanchís 2001, 216-217, my translation. 447 Prieto Sanchís 2000, 450.
448 Prieto Sanchís, 2001, understands Neo-constitutionalism as an idea of State organization, which combines strong normative content and a key role of the judicial control and represents a formula for the concretization of the Rule of Law.
449González Beilfuss 2003; Sánchez Gonzalez 2003; Sánchez Gonzalez 2015, 84; Barnes 1998a; Rodríguez Ruiz
1999.
450 E.g. Judgments 50/1995, 66/1995, 161/1997 y 53/2002, as referred to by Gonzales 2003, 19.
451 For a review on the TC case law on fundamental rights, and especially fundamental social rights, see Baylos Grau 2015. On the concept of fundamental rights confront Villalon 1989. On the specific case of the “derechos fundamentals inespecificos” before the Constitutional tribunal, and the application of the proportionality principle see, inter alia, Goñi Sein 2014.
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Spanish Constitution expressly refers to the protection of the essential content of rights and freedoms453.
Indeed, Section 53.1 states that the exercise of rights and freedoms recognised by the Constitution can be regulated “only by an act which in any case must respect their essential content”. This norm derives from Art. 19 of the Basic Law for the Federal Republic of Germany454, but it differs from the German
provision, in two crucial aspects. First, in Spain, the constitutional provision allows the ordinary law to interfere in the exercise of any freedom, independently from the existence of specific norms expressly providing for such legislative capacity. Second, and more subtle, in the Spanish Constitution the norm on the essential content seems to be addressed to any legislative act, including – but not only – those that limit rights and freedoms455.
In light of a constitutional norm establishing that fundamental rights are characterized by an essential content that must be respected in any case, the application of the principle of proportionality also serves the purpose to provide the legislator with an understanding of which duties must be fulfilled in order to enforce the fundamental rights enshrined in the Constitution456.
Consistently, in the implementation of a fundamental right the legislator can establish restrictions or put conditions upon the exercise of the given fundamental right, for the purpose of protecting or enforcing other rights or interests equally protected by the Constitution. However, restrictions as such cannot be established in an unlimited fashion: a “limit to the limits” is needed. It would be enough to read Judgment 2/1982 where it is plainly declared that “unlimited rights do not exist” 457
and this limited character is grounded upon the need to protect also other constitutional rights, as well as other interests constitutionally protected458.
453 The legal scholarship has clearly borrowed the concept of “contenido esencial” or “nucleus” from the sciences, where it has a concrete and tangible meaning (e.g. the nucleus of a cell), while in law it acquires a metaphoric significance; see Bernal Pulido 2014, 512.
454 The Basic Law for the Federal Republic of Germany, the constitutional law, was approved on 8 May 1949. 455 Prieto Sanchis 2000, 70.
456 Bernal Pulido 2005; Villaverde 2008; According to Prieto Sanchis, the judicial balancing comes after the legislative balancing operated by the legislator during the legislative phase (2002, 105, 106).
457 Judgment 2/1982.
458 For a discussion, both from a European and Spanish perspective, of the limits to fundamental rights see also Aguiar de Luque 1993. Inter alia, the author highlights that the Spanish constitution does provide for a specific provision dealing with the limits to fundamental rights, while it does provide, at Article 53, that the legislator has to regulate the exercise of such rights.
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The first of these limits is provided for by the already mentioned Article 53.1 Spanish Constitution, inspired by the German tradition, which states that the exercise of fundamental rights can be regulated “only by an act which in any case must respect their essential content”459.
Two main theories have been developed to frame the concept of essential content in the Spanish legal system: teoria relativa and teoria absoluta. The first theory strictly connects the content of the essential content to the justification of the provision that imposes the right’s sacrifice, with the result that the essential content is the portion of the right that survives, once a justified or valid limitation of that right has been imposed, which – in theory – may entail even the complete sacrifice of that right, if the protection of the conflicting right requires so. The teoria absoluta argues for a strong nucleus of the right, which must be preserved in any case, even though a justification for its limitation exists. However, it has been noted, also this theory harbours dangers. In particular, the risk is that once the essential content is respected the law is free to interfere in the implementation of a given right, without being subject to compliance with the “peripheral content”. This deficiency may be overcome by understanding the essential content as the latest possible boundary not to be crossed in any case, the insurmountable one, not the only one460.
According to Medina, the case law has rejected the teoria relativa that equates the limit of the essential content to the limit of the principle of proportionality, and it has instead adopted the teoria
absoluta, which maintains the existence of an essential core of each fundamental right, which cannot be
touched upon by the legislator, independently whether the provision adopted is proportionate or not. Therefore, the proportionality principle represents the second limit, to be applied jointly with the first one461.
Bernal Pulido, in his enlightening monograph on the principle of proportionality and fundamental labour rights462, assesses a further theory on the essential content, supported by renowned Spanish
scholars, such as Perejo, Prieto Sanchis and Medina Guerrero. The author groups this approach under
459 Article 53.1 Spanish Constitution, official translation. 460 Prieto Sanchis 2000, 70, 71.
461 Medina Guerrero 2008; Aguiar de Luque 1993; the “limit to the limits” issue is widely addressed also by Prieto Sanchis 2000, 437-441.
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the name of teoria mixta del contenido esencial463. This theory combines the absolute theory with the
proportionality principle, as a criterion to bind the legislator to comply with the fundamental rights. Under this view, the hard core of the fundamental right remains stable and cannot be sacrificed for any reason and to any extent, to the contrary the peripheral zone can be affected by ordinary norms and the proportionality principle is applied to assess whether the intervention of the legislator on the peripheral zone complies with the criteria of suitability, necessity and proportionality in a strict sense. In particular, Medina Guerrero points out that the essential content and the proportionality principle are the “limites de los limites” of fundamental rights that operate independently from each other464
. However, according to Bernal Pulido, while this theory has the merit to improve the absolute theory by envisaging a method to protect the fundamental right beyond the essential content, it does not overcome a crucial shortcoming of the absolute theory, in particular, he argues that a rational criterion that allows to separate sharply the essential content from the periphery of the fundamental right does not exist465. In conclusion, according to the scholar, the theory of the essential content and the proportionality principle are incompatible in terms of theoretical structure. Therefore, it is necessary to get rid of the abstract idea of essential content and apply plainly and exclusively the principle of proportionality. However, he adds, the mixed theory can inspire a rule to be applied in the course of the proportionality assessment, especially in the phase of the balancing in the strict sense: the most intense sacrifices to fundamental rights can be admitted only exceptionally466.
It is quite uncontroversial that the concept of essential content, significant as it is, is an unpredictable and open concept, which could be defined differently, depending on the values applied. However, its significance is justified, according to Prieto Sanchis, by two core arguments. First, it reminds the legislator and the judges the centrality of fundamental rights in the Spanish Constitution. Second, it obliges the legislator to provide an extensive justification for the limitation of the rights concerned.
463 Bernal Pulido assesses and develops counter arguments of a number of theories on fundamental rights and their essential content, one for all Habermas’ theory, see Bernal Pulido 2014, 509-621.
464 Medina Guerrero 1996, my translation. 465 Bernal Pulido 2014, 452-544.
466 Indeed, according to Bernal Pulido, the theory of the principle of proportionality offers a stronger protection to fundamental rights and binds the legislator more tightly, than the essential content theory, see Bernal Pulido 2014, in particular 551.
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Indeed, the duty to provide detailed justifications has a central role in the process of limiting the enjoyment of a fundamental right467.
Bernal Pulido, drawing on the assumption that a full objectivity in determining the essential content of fundamental rights is nothing but a fascinating utopia, argues that methodological interpretative approaches are necessary to reduce the normative indeterminacy of such rights, and the proportionality principle offers the most rational interpretative method468. This is especially true if the fundamental right’s content is not made explicit in the text of the constitutional provision, which is not exhaustive enough and makes the provision characterized by a high degree of normative indeterminacy. In other words, the intrinsic, but not the explicit, limits to fundamental rights, and, at the same time, the explicit constitutional recognition of an essential content, imply the need to find an efficient interpretative pattern. Nevertheless, this should not exclude the joint application of other techniques and principles469. Preciado Domènech comes to different conclusions as to the relationship between the essential content and the principle of proportionality. He clearly interprets the essential content (Art. 53.1 Spanish Constitution) as the content of the constitutional norm, which is directly applicable, independently from the intervention of public authorities – such as the legislator – in the sense that “it precedes and exceeds the exercise of the legislative power”470
. The only authority which can determine the scope and meaning of a fundamental right’s essential content is the Constitutional Court, while the remaining extent of the right at stake, that goes beyond the essential nucleus, can be subject to the legislator’s interpretation471
. Moreover, the author points out that a norm may respect the essential content of a fundamental right, but, at the same time, be disproportionate. However, the other way round is not as true: a norm not fulfilling the essential content of a fundamental right cannot be proportionate. This argument follows from the assumption that a norm infringing upon the core of a fundamental right is never suitable to achieve a constitutional aim, unless violating a fundamental right is necessary in order to implement
467 Prieto Sanchis 2000, 73 ff.
468 Bernal Pulido 2005, 68; in a similar way see also Stone Mathews 2008. 469 Aguiar de Luque 1993, 17. See also Medina Guerrero 1998.
470 Preciado Domènech 2016, 77, my translation.
471 The reason for this crucial distinction between the interpretative powers of the Constitutional Court and, on the other hand, of the legislator, lies in the fact that “the Constitutional Court has to guard the permanent distinction between the objectivity of the constituent power and the implementation from the constituted powers, which will never be entailed to go beyond the limits and the competences set by the former” (Judgment 76/1983, 5 August 1983, my translation).
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another fundamental right472. According to the scholar, which seems to adopt the teoria absoluta, to
distinguish essential content and proportionality we need to look at the different phases in which the two are considered: the essential content is determined at an earlier stage, “at the moment of the delimitation of the content of the right” and, secondly and consequently, the proportionality can be evaluated473.
However interesting this view is, it does not help clarifying how the core content can be determined.
Parejo Alfonso traced the meaning of the essential content and the method used by the Court to identify it, on the grounds of a Judgment of 1981 (Judgment 11/1981). The author argues that the essential content of a fundamental right is “that part of the right's content, which is absolutely necessary so that the interests legally protected, that enliven the right, result real, concrete and truly protected”. This content is not general, but “essential” in the sense that it concerns the elements which are paramount to legally recognize the right at issue, both in its meaning and in its justiciability. In addition, according to the 1981 Constitutional Court, the essential content must be understood in relation to the historical context in which the judicial case is decided. However, according to the author, it constitutes an “undetermined legal concept”, which becomes a tool for the assessment and protection of a fundamental right, with due regard to both its original meaning, that is the intention and will of the constituent assembly, as well as the "evolutionary adaptation" that it has undergone over the years474. Bernal Pulido identifies a further weakness in the absolute theory in the importance given by the Court to the historical context in the determination of the essential content of a fundamental right. Under this view the absolute theory is dismissed by the Constitutional Court, inasmuch as, while the Court emphasises the role of the temporal dimension, the theory at issue considers the right’s nucleus as a static and abstract element and fails to contemplate the historical context as a crucial criterion, with the effect of supporting an “ahistorical idealization” of fundamental rights’ essential content. This deficiency makes the teoria
absoluta inapplicable in the practice of a legal system475.
In order to identify whether the essential content of a fundamental right is violated, the Constitutional Court, in its renowned judgment from 1981, identifies two methodological ways. The first technique
472 Preciado Domènech 2016, 143; see also González Beilfuss 2015, 86-88.
473 Preciado Domènech 2016, 143, my translation. 474 Parejo Alfonso 1981, 186-190, my translation. 475 Bernal Pulido 2014, 531, 532.
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lies on the assumption that the interpreter shall be able to identify the “tipo abstracto del derecho”, which pre-exists the legislative act, in the ordinary law under scrutiny. However, the “tipo abstracto” is not fixed and absolute, but it reflects the collective idea in a precise historical context, which is shaped by the legal scholarship and the case law. Therefore, the Judges have to conduct a comparison between what the legislator has produced and how the right at stake is normally understood. The second step does not concern the internal dimension of the fundamental right, but rather the beam of faculties that emanate from a given right, that is the various elements that compose the interest protected. Therefore, in light of the two key elements pointed out (the consistency with the “abstract type” and the satisfaction of the interest protected), the essential content is violated when the ordinary law does not comply with the abstract category of the said right, or when, even if the abstract category of the constitutional right is reflected in the ordinary norm, the latter limits or complicates the exercise of the said right, or its justiciability, in an unreasonable way476.
It has been argued that the Constitutional Court has made a prudential use of the concept of “essential content”, without sharply dividing the constitutional rights into two parts: the core one and the one that can be left aside and does not need to be enforced. Indeed, according to Prieto Sanchis, for an ordinary norm to be legitimate, the degree of impact upon the essential content of a fundamental right must be directly proportionate to the extent of the justification provided by the norm, in other words: “the more a right is scarified, and therefore the more we get close to touch the essential content of it, the more justified the restricting provision must be”477
.
Conclusion: balancing, hermeneutic criteria in Italy and Spain and the Social State theory
The enormous food for thought provided by the constitutional literature addressed cannot be constrained in a single and all-embracing definition of balancing. To the contrary, the scholarship’s production demonstrates the complexity of the criterion at issue.
476 Parejo Alfonso 1981, 186-190.Also Solozabal Echavarria 1991 refers to Judgment 11/1981, to identify the
scope of the essential content of constitutional rights. However, the meaning and interpretation of the concept of “essential content” of fundamental rights is controversial, for an attentive review of the academic literature by Rodríguez-Armas 1996; See also Martìnez Pujalte 1997; Prieto Sanchìs 2003.
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Besides those authors who challenge the existence of a balancing procedure tout court and/or the use of balancing as a valid and effective way for deciding disputes over conflicting rights and interests, others have recently questioned the assumption that we are in an “age of balancing”, a theory developed in certain academic literature, mostly since the end of the 1980s478. The authors who advocate this
argument tend to emphasize the points of convergence of the case law of various national and supranational legal systems, even though they do acknowledge that some differences exist479. Jacco Bomhoff disagrees and calls into question what he characterizes as the “global age of balancing: an age in which even those wanting to emphasize differences between legal systems find themselves having to rely on this unifying language to make their point”480. He aims to show that, even though “basic
similarities” cannot be denied, “crucial differences” still exist in the way in which the Courts balance conflicting interests and rights, starting from and especially because of the differences in the “language of balancing”481
. The Italian and Spanish experiences are far from providing a clear example in support of the assumption that we are not in a global age of balancing, but the consistent differences cannot be underestimated, both in the merit and in the so-called “language of balancing”.
Indeed, in the Italian and Spanish case law addressed, the balancing of conflicting rights and interests is a central element, albeit it still is highly controversial among the scholars and not clearly defined by the case law.
The fact that in the Italian legal system the essential content of fundamental rights is not explicitly protected by a constitutional provision, as it is in the Spanish case, but it finds explicit recognition in the case law of the Constitutional Court, which has elaborated this concept in line with the Spanish system’s understanding, is one of the elements that suggests that, beyond the differences in terms of quomodo, the two constitutional judicial traditions share considerable similarities with regards to the approach to fundamental rights.
478 The expression was coined by Aleinikoff 1987 and it refers to the widespread use made by the Courts, all over the world, of the balancing technique.
479 One for all, recently, the idea that we live in an “age of constitutional balancing” has been reiterated by Gardbaum 2010.
480 Bomhoff 2013, 15.
481 Bomhoff, the author draws his theory upon the Bundesverfassungsgericht and the US Supreme Court’s case