The TC deals a third blow to the Government for the measures adopted to stop the pandemic

The court of guarantees has already knocked down the confinement of the first and second state of alarm

MADRID, June 2 (.) –

The Plenary of the Constitutional Court (TC) has annulled this Thursday the legal reform of the Government that left in the hands of the Superior Courts of Justice (TSJ) the judicial endorsement of the health restrictions adopted by the autonomous communities, which represents the third setback of the court of guarantees to the Government for anticovid measures, after declaring both states of alarm unconstitutional.

In a ruling that the TC has advanced in a statement, the magistrates consider that with that referral to the TSJ the principle of separation of powers was broken because it attributed to judges and courts “functions outside their constitutional mandate”, since the regulatory power to dictate anticovid restrictions corresponds to the Executive Power. “The Judiciary is not co-ruler,” they stress.

In addition, they indicate that this “confusion” of functions “also limits or hinders the demand for political and legal responsibilities from the Executive Power, in relation to its general health provisions for the protection of public health, to the detriment of the principle of responsibility of the powers public”.

In this way, they consider the question of unconstitutionality raised by the Contentious-Administrative Chamber of the TSJ of Aragón in relation to article 10.8 of the Law of the Contentious-Administrative Jurisdiction.

The first time that the TC studied the decisions taken by the Government to stop the expansion of the coronavirus was on account of the declaration of the first state of alarm, which came into force on March 14, 2020.


In July 2021, in response to an appeal filed by Vox –which it partially upheld–, the Plenary declared confinement unconstitutional, that is, the limitation of the movement of people and vehicles in public spaces and roads, as well as the capacity of the Ministry of Health to modify and expand the containment measures in commercial activity.

The magistrates stated that the legal instrument to apply should have been the state of emergency, taking into account the “seriousness and extent” of the pandemic, which made the normal functioning of democratic institutions ‘de facto’ impossible while citizens were affected by the normal exercise of rights, saturated health services and affected educational activities “and those of almost any other nature”.

This caused, according to the TC reasoned, that the problem went beyond the sanitary and affected “public order”, for which it would have allowed to legitimize the declaration of the state of emergency in compliance with the norm that regulates its operation. “Another thing would imply accepting the failure of the Rule of Law, handcuffed and unable to find a response to situations of such gravity,” he added.


The magistrates also had to analyze the royal decree by which the second state of alarm was declared due to another Vox resource. And, in the same way, last October they declared it unconstitutional on the understanding that during the pandemic the “control regime” that corresponds to the Congress of Deputies was “canceled” in those exceptional circumstances.

The ruling held that as a result of the second state of alarm, Congress was “deprived” –and then “dispossessed”– of “its power to oversee and supervise the actions of government authorities” during the six-month extension.

In this sense, he recalled that in the face of an “episode of serious alteration of normality” — such as the pandemic — “it is part of the duties of the Executive to render accounts” to the Lower House of the “data and procedures” that it carries out to combat the crisis and “inform” of the evolution of the measures adopted.


However, none of the three rulings of the Constitutional Court on the measures adopted by COVID-19 have been peaceful. With all, the Plenary has voted divided and individual votes have been issued.

In the well-known this Thursday, the magistrates have supported Enrique Arnaldo’s presentation with a majority of seven to four. Cándido Conde-Pumpido, María Luisa Balaguer, Ramón Sáez and Inmaculada Montalbán have announced a private vote because they believe that attributing to judges and courts the function of approving health police measures of a general scope has express constitutional coverage in article 117.4 CE.

In its resolution on the second state of alarm, the result was six votes against four, with the individuals of the then president, Juan José González Rivas, and the magistrates Juan Antonio Xiol, Conde-Pumpido and Balaguer.

The same thing happened with the ruling on the first state of alarm. Then, the vote was resolved with a difference of six to five and also had the private votes of González Rivas and the judges Andrés Ollero, Xiol, Conde-Pumpido and Balaguer.


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