External contributors: Miguel Ángel Presno Linera and Patricia García Majado (University of Oviedo)

On 14 July 2021, the Spanish Constitutional Court (SCC) issued its long-awaited ruling on the constitutionality of several provisions (namely Articles 7, 9, 10 and 11) of Royal Decree 463/2020, of 14 March 2020, which declared the first nationwide state of alarm for the management of the Covid-19 crisis, as well as its subsequent amendments and extensions.

The judgment, adopted by six votes to five, was given in the context of an appeal of unconstitutionality lodged by more than 50 deputies of the far-right ‘Vox’ parliamentary group. The appeal had put forward the violation of Articles 55[1] and 116 of the Spanish Constitution (SC) which regulate, respectively, the suspension of some fundamental rights and the states of alarm, exception, and siege. The appellants had further alleged the infringement of certain provisions of Organic Law 4/1981, of 1 June 1982, on the states of alarm, exception, and siege (LOAES). In addition, the appellants had alleged that certain constitutional rights were breached. According to them, Article 7 of Royal Decree 463/2020 would be contrary to the freedom of movement (Article 19 SC), the right to personal freedom (Article 17 SC), the rights of assembly and demonstration (Article 21 SC) and the principle of sanctioning legality (Article 25 SC), in conjunction with the principle of human dignity (Article 10[1] SC); Article 9 of Royal Decree 463/2020 would be a breach to the right to education (Article 27 SC); Article 10 of the challenged Royal Decree would infringe the right to work (Article 35 SC) and the freedom to conduct a business (Article 38 SC); and Articles 7 and 11 of the Royal Decree would breach the right to religious freedom (Article 16 SC) in connection with Article 10[1] SC.

The essence of the dispute revolves around the constitutional differences between the so-called ‘state of alarm’ and the ‘state of exception’. As explained in the the Oxford Compendium Country Report for Spain, Article 116 SC distinguishes among three types of states of emergency: the state of alarm (for catastrophes and other crises such as epidemics); the state of exception (for severe and extraordinary alterations of public order); and the state of siege (for attacks against Spanish sovereignty). The distinction has become problematic in the context of the Covid-19 pandemic for two reasons. The first one is that, according to Article 55[1] SC, suspensions of fundamental rights are possible only under a state of exception or a state of siege, but not under a state of alarm (which just allows for ‘restrictions’, but not for ‘suspensions’ of fundamental rights). The second reason is that, in accordance with its lower degree of intrusiveness, the state of alarm allows more leeway for the Government than the states of exception and siege. Indeed, the power to declare a state of alarm vests solely in the Spanish Government (whereas an ex ante authorization by the Congress of Deputies is needed for a state of exception, and the declaration can be made only by the Congress of Deputies for the state of siege). The declaration of a state of alarm can last for a maximum of 15 days. Congress shall be informed of the declaration and must meet immediately for this purpose. Congress’ powers are exclusive when it comes to the authorization of an extension of a state of alarm beyond the period of the initial declaration. It can also set the effects and scope of the extension, and is therefore not restricted to simply casting a yes or no vote.

The Court’s assessment

As regards the admissibility of the appeal, the SCC noted that the fact that the challenged health measures had expired months ago (due to the end of the state of alarm) does not constitute an obstacle to rule on the appeal. According to the Court, it cannot be held that such an expiration deprives the appeal of its purpose, because such an interpretation would create immunity from judicial review. Moreover, the SCC recalled that governmental Royal Decrees declaring or extending a state of alarm are considered to have the nature of an Act of Government; therefore, they cannot be scrutinized by the judiciary, but only by the SCC (on this, see the Oxford Compendium Country Report for Spain).

As for the merits, it is important to note at the outset that the appellants had not discussed the concurrence of the enabling clause of the state of alarm (the existence of the factual circumstances needed to declare it, namely a health crisis) nor, therefore, its declaration by Royal Decree 463/2020. Since what they had called into question was just the constitutionality of some of the restrictive measures adopted under that state of alarm (but not the decision to declare it), the SCC’s scrutiny should be limited to examining the constitutionality of the challenged restrictive measures, taking into account the provisions of the SC and the LOAES.

The Court began by recalling that a state of alarm cannot be invoked to justify the suspension of fundamental rights, because such a suspension can only take place under the states of exception and siege (Articles 55[1] and 116[3] and [4] SC). What the state of alarm allows is the imposition of restrictions to the exercise of fundamental rights. On this basis, the SCC then tried to distinguish the concepts of ‘limitation’ and ‘suspension’, on the explicit assumption that the former is the genus and the latter the species, and that therefore a suspension is a qualified limitation. According to the SCC, a ‘suspension’ amounts to a cessation, even if temporary, of the exercise of the fundamental rights and its safeguards. Consequently, the SCC opted for a material concept of suspension instead (rather than for a formal one), concluding that it entails a very intense limitation of a fundamental right (and not a provisional repeal of the constitutional norm that recognizes that right). In our opinion, however, ‘suspension’ is not a qualified form of ‘limitation’, but these are different legal concepts altogether.

Assessing the constitutionality of the specific legal provisions under appeal, the SCC concluded, in the first place, that Article 7 of Royal Decree 463/2020, which imposed a ban on the freedom of movement except in certain justified cases (lockdown), did not infringe Articles 17 and 25 SC, because it did affect neither the right to liberty nor the rights and guarantees with regards to sanctions. The SCC further dismissed the allegations of breach of the rights to freedom of assembly and demonstration (Article 21 SC) and to freedoms which guarantee the functioning of political parties and trade unions or the fundamental right of political participation (Article 23 SC).

A different conclusion was reached, however, regarding freedom of movement, protected by Article 19 SC. According to the SCC, the state of alarm turned free movement into an exception; an exception doubly conditioned by its purpose (only for the performance of certain activities) and by its circumstances (‘individually’, again with exceptions). The SCC noted that this involved a restriction of the freedom of movement which is general in terms of its addressees and extraordinarily intense in terms of its content. According to the SCC, such restriction surpassed what the LOAES allows the Government to do under a state of alarm, namely ‘to limit the circulation or permanence [...] at specified times and places’ (Article 11 LOAES). This led the SCC to rule that a norm that prohibits the movement of all people, anywhere and at any time, except in cases expressly considered as justified, implies a suspension of the right to freedom of movement, something not allowed under the state of alarm. This led the SCC to conclude that the right to freedom of residence had also been breached, because it was restricted to the places that were considered to be residences when the state of alarm was declared.

Secondly, the SCC declared Article 9 of Royal Decree 463/2020, which imposed ‘containment measures in the field of education and training’, constitutional. According to the judgment, the suspension of students' personal attendance at educational establishments had found a sufficient legal basis in the LOAES and was not disproportionate.

Thirdly, the SCC examined Article 10 of Royal Decree 463/2020, regarding certain ‘containment measures in the field of commercial activity, cultural facilities, establishments and recreational activities, hotel and restaurant activities, and other additional activities’. The appellants claimed that this provision had infringed the rights to work and to conduct a business (Articles 35 and 38 SC). The SCC immediately ruled out that the right to work was affected, since Article 35 SC does not guarantee the performance of any activity but rather the free choice of profession or trade. As for Article 38 SC, the SCC noted that the provision under scrutiny had posed very intense and temporary restrictions on the free maintenance of business activity in some of the sectors directly concerned, but concluded that such restrictions were based on the LOAES and were not disproportionate. However, the SCC declared the unconstitutionality of Section 6 of Article 10 of Royal Decree 463/2020 (introduced by Royal Decree 465/2020, of 17 March 2020), which had empowered the Head of a ministerial department to reduce the previously fixed margins in which that freedom was maintained. According to the SCC, this provision had allowed the Government to restrict the right to freedom to conduct a business (through subsequent rulemaking based on the state of alarm) beyond what was provided for in Paragraphs 1, 3 and 4 of Article 10 of Royal Decree 463/2020 without the constitutionally required accounting to the Congress of Deputies (because ex post approval by the Congress is needed only in respect of the declaration and prorogations of the state of alarm, but not in respect of administrative regulations adopted on the basis thereon).

Finally, the SCC assessed the constitutionality of Article 11 of Royal Decree 463/2020, regarding ‘containment measures in relation to places of worship and civil and religious ceremonies’. It concluded that there was no violation of the freedom of religion by conditioning the attendance at places of worship and religious ceremonies on the adoption of social distancing measures.

The last part of the judgement addresses the effects of the declaration of unconstitutionality. Nonetheless, before getting into the issue itself, the SCC makes a digression, alluding to different things that may seem irrelevant for the question at stake (such as the discussion on the state alarm in the constituent process). These various considerations finally led the SCC to finally conclude that the pandemic ‘would have made it possible to justify the declaration of a state of exception on the basis of the circumstances that actually existed, rather than on the cause of them; thus legitimizing even the adoption of measures that imply a radical or extreme limitation (suspension) of the rights considered herein’. These considerations are paradoxical because, as the SCC itself had stated at the beginning of the judgment, its task consists of nothing more than analyzing the constitutionality of the measures under appeal, and not of giving opinions on what the Government should or could have done.

Concerning the effects of the declaration of unconstitutionality, the SCC clarified that it can give rise to the review of the criminal or administrative sanctions stemming from the breach of the rules declared void, where those rules had been the sole basis of the sanction. The review can lead to a reduction of the penalty or to an exclusion of the responsibility (for example, fines imposed for breaking lockdown). The declaration of unconstitutionality, however, will not allow claims engaging the liability of the administration.

Dissenting opinions

The judgment includes five dissenting opinions. They all agree that all of the health measures assessed by the SCC should have been declared constitutional since they are not suspensions but limitations of fundamental rights, and that they were rightly adopted under the state of alarm.

The dissenting opinion of Judge Balaguer Callejón argues that, once the concurrence of the enabling clause of the state of alarm had been accepted (health crisis) and limitations of the freedom of movement were incarnated in those typical measures of the state of alarm (Article 11 LOAES), the correct tool to assess the constitutionality of the lockdown should have been the proportionality test.

For Judge Ollero Tassara, while the state of exception refers to public order problems with notorious political connotations, the state of alarm alludes to catastrophes and situations such as the current pandemic. The key, in his view, is that when a state of exception is declared, it is decided, a priori, to affect the essential content of fundamental rights. On the contrary, the state of alarm only becomes unconstitutional when limitations of fundamental rights are disproportionate, thus affecting its essential content, which is detected a posteriori.

In his judgment, Judge Conde-Pumpido concludes that the SCC's judgement creates a  serious political and health problem by disarming the State against pandemics, depriving it of the instrument that the law expressly provides for to deal with health crises, which is the state of alarm. In his view, the ruling does not correspond to legal criteria since it rather uses a shortcut of argument (to identify as suspension an intense restriction of a fundamental right) to declare the unconstitutionality of the lockdown.

Judge González Rivas, President of the Court, considers that Paragraphs 1, 3, and 5 of Article 7 of Royal Decree 463/2020 should have been declared constitutional, as restrictions were validly adopted under the state of alarm. He argues that no fundamental rights were suspended - following a formal and not substantive concept of suspension. This being so, the task of the SCC should have been to analyze the limits of the restrictions imposed to the freedom of movement from the perspective of the principle of proportionality.

Finally, Judge Xiol Ríos argues that the difference between the state of alarm and the state of exception does not have to do with the severity of the crisis but with its own nature: political or not. That is why the state of alarm was well declared. In addition, he considers that a fundamental right is suspended not when it is very intensely restricted (as it happened during lockdown with the freedom of movement) but when the constitutional norm it recognizes loses (provisionally) its efficacy, so the fundamental right ceases to exist as such. This did not occur in the case at stake since the freedom of movement was not formally repealed: it remained in force.

To sum up, the SCC, almost a year and a half later and in an extremely close vote, has declared partially unconstitutional the first decree of the state of alarm declared due to the Covid-19 pandemic, whose leading measure was the general lockdown of the population. Nonetheless, there is at least one other ruling upcoming in this regard, since the appeal of unconstitutionality of the third state of alarm (October 2020) is still pending before the SCC. It calls into question, inter alia, the state of alarm's six months extension and the delegation of powers from the central Government to the regional authorities to adopt different health measures.