Constitutional Balancing and Fundamental Labour Rights: an Analytical Approach to the Italian and Spanish Case Law on Post-Crisis Reforms

A number of labour and social security reforms adopted by EU countries in the aftermath of the 2008 crisis have been challenged before national Constitutional Courts, which have sought to resolve the conflict between fundamental labour rights and conflicting economic interests, through balancing exercises. The thesis investigates the legal reasoning developed by the Italian and Spanish Constitutional Courts in crucial post-crisis judgments. The study draws on neo-constitutional theories and starts from the assumption that fundamental labour rights, understood as rights aimed at protecting workers and their dignity either during their working life or after retirement, must be fully enforced, albeit can be subject to limitations in order to protect other rights and interests constitutionally guaranteed. In order to achieve this objective, the thesis focuses on the jurisprudential theories on balancing characteristic of the two judicial constitutional traditions addressed and designs an analytical framework that allows a comprehensive assessment of the units of analysis. Overall, the research has shed light over a number of issues, which have a general relevance as far as concerns the relationship between Constitutional Courts and fundamental labour rights. With regard to the specific cases investigated, the study suggests that both Courts tend to supervise the balancing conducted by the legislator, rather than to balance actively the conflicting constitutional interests. However, the techniques applied substantially diverge. The analysis shows that while the Spanish Judge has failed to both apply the proportionality test and guarantee a full enforcement of fundamental labour rights, the unstructured and dialectic technique traditionally used by the Italian Court has been – more – functional to this aim. On the other hand, in both cases, despite the significant differences, the Courts have uphold the limitations to the scope of fundamental labour rights, imposed by post-crisis policies.