Balancing techniques in Fundamental Social Rights’ adjudication: a focus on the Italian and Spanish Post-2008 Crisis’ Constitutional Case-Law

Fundamental social rights characterize modern Constitutional texts and are rooted in the European Union (EU) Member States’ legal systems. In the latest decades, they have been finally recognised the same significance as political and civil rights, and any hierarchical distinction has been overcome, on the argument that all rights are interdependent and equally contribute to build a fully democratic society. This evolution is demonstrated by The Charter of Fundamental Rights of the European Union which disregards such differentiation, choosing a diverse categorization that gathers principles around core values. Nonetheless, as any other Constitutional right, with the exception of human dignity, fundamental social rights are not absolute and must be balanced against other Constitutional principles and rights. In a number of EU Member States, Constitutional courts are called upon to supervise the balancing decided by the legislator and expressed in ordinary norms. In order to grasp the problematic profiles of balancing fundamental social rights, a distinction must be made between those that directly guarantee the functioning of the social security system and are dependent on available public resources and those that intervene to safeguard the workers’ position within the employment relationship, which require a different type of response by the legislator. In both cases, balancing, which must be conducted by the legislator and eventually supervised by the Courts, can occur only among principles and rights expression of founding values of the legal system. However, this is just one of the controversial elements of judicial balancing. The technique applied to assess the ordinary norm in relation to the constitutional principles into play can be decisive in shaping fundamental social rights’ adjudication, and, hence, their enforcement. The paper reflects on the use made by the Italian and Spanish Constitutional Court in relevant post-2008 crisis judgments, focusing on the – different – balancing techniques applied and on the effects on the fundamental social rights concerned. Indeed, the Covid-19 pandemic has newly drew attention to both the delicate equilibrium between Constitutional principles and the implementation of fundamental social rights and the case-law of the two Southern European Courts on the norms adopted to face the 2008 economic and financial crisis provide interesting insights into the principles applied by the Courts to adjudicate fundamental social rights, respectively the principle of reasonableness and the principle of proportionality, that can contribute to understand the existing constitutional equilibria.