It is not exaggerated to say that, following the lifting of the state of alarm on 9 May 2021, the most topical legal issue in Spain is that of the conditions under which administrative authorities can adopt, and courts should control, preventive measures which involve restrictions of fundamental rights in order to stop the spread of the Covid-19 virus.

The context and meaning of these discussions were summarized in a previous contribution to this blog by Prof Alba Nogueira. In short, the problems stem mainly from two elements. The first one is that Spanish law contains only two possible sets of legal instruments to tackle the spread of the virus through restrictive measures: the state of alarm (an extraordinary emergency mechanism which, once declared by the Government, allows for the administrative adoption of preventive measures restricting fundamental rights), and public health legislation (which, in the absence of a legally declared state of alarm, can be used by the competent administrative bodies −in most cases, the Autonomous Communities (ACs) − to impose similar measures, with the important peculiarity that in this case they should be authorized by a court before they can be enforced). The second problematic element is the broad and vague wording of the relevant provisions contained in public health legislation, combined with the defective design of the system of ex ante judicial authorisation of restrictive measures.

In a contribution to this blog yesterday (which should be read in conjunction with this post), it was explained that the Spanish Supreme Court (Tribunal Supremo) has recently ruled for the first time on the core aspects of this legal framework. In a judgment of 24 May 2021, which concerned a measure restricting movement between certain territories in the AC of the Canary Islands, the Court confirmed that:

  • public health legislation is a proper and sufficient legal basis for the adoption of restrictive health measures by Spanish administrative authorities (even in the absence of a state of alarm), provided that certain conditions, inter alia proportionality, are met; and that
  • the function of ex ante judicial control is limited to ensure that such conditions are observed, while full assessment of the validity of the corresponding measures can only be performed through the ordinary mechanisms of ex post judicial review.

Over the last few hours, however, a major turmoil has been stirred up in the media regarding a new Supreme Court’s judgment issued yesterday (in Cassation Appeal Number 3704/2021), which denied judicial authorisation for the enforcement, in the AC of the Balearic Islands, of a curfew (from midnight to 6 am) and of a limitation on gatherings to a maximum of six (indoors) and eight people (outdoors). This has caused a great deal of confusion as to whether these kinds of restrictive measures (curfews and limitations on gatherings) are generally excluded from the scope of public health legislation, so that they would be admissible only under a state of alarm, as some commentators had argued over the past weeks.

Certainly, yesterday's Supreme Court judgment notes that there is a relevant qualitative difference between restrictions of movement among territories, on the one hand, and curfews and limitations on social gatherings, on the other. The difference results from the fact that the latter restrict ‘not only the freedom of movement’, but go beyond that, ‘affecting also the right to private and family life and the right of assembly’. Notwithstanding this, the Supreme Court stressed that the problem in the case at hand was not only the nature of the restriction (because, in abstract terms, curfews and limits on gatherings ‘would be admissible to fight the spread of an infectious disease […] in a town’ (emphasis added)), but also −and mainly− its personal scope (because they concerned all the population of the AC and, as already clarified by the Supreme Court’s judgment of 24 May 2021, restrictive measures must specify the groups to which they refer, along with the period of time during which they will apply).

On this point [7], the Supreme Court states that the extraordinary intensity of these restrictions (resulting from the combination of their nature and their broad personal scope) 'makes it doubtful that they are covered by public health legislation' (specifically, by Article 3 of Organic Law 3/1986). This statement clearly suggests the need for a clarification from the Constitutional Court through a question of unconstitutionality.

However, the Supreme Court does not even mention such a possibility and, instead, turns the legal basis problem into a proportionality one: without further reasoning, it concludes that both curfews and limits on the size of gatherings can be imposed to large groups of people, with the requirement that they withstand a particularly demanding proportionality test. According to the Supreme Court, generalized curfews and restrictions on social gatherings can be covered by health legislation, but their substantive justification must be particularly intense. The administrative authority adopting these measures must establish that they are 'indispensable to safeguard public health' in connection with the corresponding epidemiological circumstances, ‘without mere considerations of convenience, prudence or precaution being enough in this regard’ (emphasis added).

This decision has the undeniable value of confirming the Supreme Court’s recent case law on the admissibility of fundamental rights restrictions under health legislation (even where no state of alarm has been declared) and on the role and scope of judicial ex ante control. Moreover, it introduces very useful nuances with regards to the proportionality test, by distinguishing among different possible intensities of restrictions from the perspective of their content and of their personal scope.

However, it also leaves a number of crucial issues unanswered, and even opens new (and deep) problems. Firstly, it seems to exclude the role of the precautionary principle, which is a key tool for the administrative management of risks, for the most restrictive kinds of measures. Secondly, it does not clarify the functioning of this 'qualified' proportionality test, nor does it apply such a test, but only says that in the case at hand 'the Administration had not given enough justifications' regarding the need for the contested measures. In connection with this, it is regrettable that the Court does not address the Public Prosecutor’s allegations that curfews are unjustified (because the goal they pursue could be achieved through less restrictive means such as the early closure of non-essential facilities at night), and that restrictions on indoor social gatherings are unnecessary (because ensuring their enforcement is impossible in practical terms). And, thirdly, is seems to partially open (again) the Pandora’s Box that the Supreme Court itself seemed to have closed on 24 May 2021: namely, the enabling function of public health legislation when it comes to preventive measures involving particularly intense restrictions of fundamental rights, because of the combined effect of their nature and their large personal scope.