Court voids the second state of alarm too

On 27 October 2021 the Constitutional Court issued ruling 183/2021, which partly upholds the appeal of unconstitutionality filed by Vox against Royal Decree 926/2020 of 25 October, which declared the second state of alarm. The decision was taken by six votes to four. The Court declares unconstitutional and void, among other things, the extension of the declaration, which Congress had authorised for six months, and the delegations made to regional authorities.

It is the second time in a few months that the Court has censured the legal basis for the measures against the pandemic. On 14 July, its ruling 148/2021 declared unconstitutional several provisions of the first state of alarm, those that underpinned the restrictions on free movement characteristic of a lockdown. Both rulings arrive when the states of alarm have already ended, but they set criteria for how future restrictions on fundamental rights must be adopted.

What the Court says

The majority does not criticise the length in itself, but considers that a period of six months, in view of the agreement adopted by Parliament, was unreasonable or lacking foundation. In its view, so long an extension weakened the parliamentary control that the Constitution demands during a state of alarm, and that control is an essential guarantee when people’s rights are limited. The Court recalls that fundamental rights may be limited only with the guarantees laid down in the Constitution, and that an emergency does not in itself justify dispensing with them.

The Court also considers it unconstitutional for the Government to delegate to the presidents of the autonomous communities the power to decide on restrictions such as curfews or limits on movement between territories. In its view, the declaration of a state of alarm and the accompanying measures are for the central Government, which cannot pass that responsibility to other authorities. Four judges defended constitutionality and three announced dissenting opinions.

Effects for businesses and families

It is wise not to read more into the ruling than it says. In its July decision on the first state of alarm, the Court itself indicated that a declaration of unconstitutionality is not, on its own, a basis for claiming compensation. Nor does it automatically annul penalties or decisions already adopted on the basis of the affected rules: that will depend on each procedure and on what the ordinary courts decide. Debates on claims for State liability are likely to open, but the route is uncertain and demanding.

For businesses that suffered closures or opening-hour limits, and for people fined for breaching restrictions, the ruling opens a legal discussion, not an immediate solution. Time limits for claiming or appealing are usually short, so anyone considering it should not wait for the doctrine to settle but consult a lawyer as soon as possible.

What to review

The prudent course is to keep the documentation from that period: closure orders, penalty decisions, comparative income statements, aid received and communications with insurers. It is important to know what compensation was received, because it may affect any later claim, and to check whether there are open proceedings with time limits running. It is also worth noting the time limits that apply to each route of claim, which vary according to the type of procedure.

Pending how the ordinary courts and the Government respond, the ruling is above all a warning for the future: if measures of this kind are needed again, they will have to be adopted with sounder legal instruments. This note is for information only and does not assess any specific case.

Legal certainty is also at stake in crises, and it is worth keeping the paperwork at hand.

This article is general information. It is not legal, tax or investment advice, and it does not take anyone’s particular circumstances into account.