The – minor – role of the principle of reasonableness

Before moving to discuss the features of the principle of proportionality – and its correct application – as well as other related concepts, let us now briefly dwell on the principle or reasonableness. The

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principle of reasonableness per se has played a way less crucial role in the Spanish constitutional case law, compared to the Italian case. In what González Beilfuss has identified as the first phase of application of the proportionality principle by the Spanish Constitutional Court (see chapter above), the Court was, according to the author, strongly linking the principle of proportionality with that of reasonableness, as demonstrated by the use of expressions such as “reasonable proportionality” (e.g. Judgment 178/1985). However, already in 1981, the Court had declared that a different treatment is allowed only if justified in an “objective and reasonable” way (Judgment 22/1981). Judgment 22/1981 can be understood in the sense that the Court has applied both the principle of reasonableness and the principle of proportionality. It has been argued that the Court has made use of the reasonableness criterion “which implies that the distinction shall pursue a legitimate aim, as well as that the mean shall be suitable to achieve the aim”429

, and together with this requirement, it has applied the principle of proportionality, albeit inexactly, and has investigated over the proper balancing of the conflicting interests. This understanding seems to suggest that the Court, in the first phase of its activity, was equating the principle of reasonableness with one of the sub-tests of the proportionality test, where the suitability is evaluated, while the principle of proportionality consisted in the latest phase of the German test, that is balancing in the strict sense. Moreover, interestingly, this case is one of the firsts in which the two principles emerge and it concerns the right to equal treatment. Indeed, as pointed out by Perello Domenech, the principle of proportionality has been often used to judge upon the infringement of the principle of equality430. In this respect, that is in judicial cases concerning the right to equal treatment, Prieto Sanchis argues that the principle of reasonableness is translated in a need to balance the conflicting principles. Under this perspective, “a law is justified when it is reasonable, that is when the violation of a right is reasonable in light of enforcing another right”431_.

According to González Beilfuss, although in the proportionality adjudication the reasonableness corresponds to the assessment of the suitability of the law examined, therefore in the first phase, it also

429 _{Perello Domenech 1997, 71, my translation.}

430 _{Perello Domenech 1997, 71, my translation. On the Spanish constitutional case law on the principle of equality} up to 1994, see Carmona Cuenca 1994.

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constitutes an autonomous parameter432_{. Indeed, Roca Trias emphasizes that the principle of}

reasonableness (razonabilidad) plays/has played a crucial role in the constitutional case law especially with regard to the right to equal treatment and the right to a fair trial. In the first case, the influence was clearly from the ECtHR (as also expressly referred to in/stated in Judgment 22/1981)433_{. The autonomy}

of the reasonableness requirement is limited, in fact it is normally applied jointly with other criteria. For instance, in a case concerning the right to equal treatment, the criteria selected in order to conduct the scrutiny were the reasonableness of the norm and its necessity, as expressly done in Judgment 103/1983. In that case, the necessity requirement was applied independently, therefore beyond the scope of application of the proportionality principle.

A further example is provided by a case on the right to a fair trial, the second criterion selected by the Court was the arbitrariness, and the conclusion was that the judicial decision is constitutionally illegitimate if the legal reasoning is manifestly arbitrary and unreasonable (Judgment 214/1999)434. Perez, drawing on the latest mentioned judgment (Judgment 214/1999) argues that the reasonableness adjudication is based upon the formal coherence of the measure assessed, together with the absence of evident unreasonableness435. According to the scholar, the “reasonableness judgment” coincides with the content of the constitutional scrutiny, but it also constitutes its limitation, inasmuch as only what is reasonable is constitutional and the Court can validly conclude for the constitutional legitimacy of a norm, only if it is cleared of any arbitrariness. However, the author is aware of the indeterminacy of the legal concept of reasonableness and, by quoting a judgment from 2002 he argues that, in order to provide reasonableness with a content, it is necessary to start from the assumption that “the validity of a reasoning is, from a purely logical perspective, independent from the truthfulness or falseness of its premises and conclusions” (Judgment 164/2002, my translation). In other words, what the reasonableness scrutiny investigates is the coherence of the norm436_.

432 _{González Beilfuss 2015, 83.}

433 _{Roca Trias 2013. For an analysis of the constitutional case law over the principle of equal treatment and the} legal reasoning and methods used, that is also the principle of proportionality see Barnes 1998b, 337-343. 434 _{See Roca Trias 2013 (also on reinforced reasonableness).}

435 _{Perez 2014; also in this respect, the use of the reasonableness principle, Gonzalez, 2003, 22, is critical, in the} sense that in his opinion this concept is too vague to constitute a valuable criterion for the constitutional case law. 436 _{Perez 2014, 9-10, my translation.}

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