La proporzionalità alla prova dell’emergenza. Rilievi in prospettiva comparatistica

Challenging proportionality in times of emergency. A comparative perspective

Abstract

Challenging proportionality in times of emergency. A comparative perspective –Constitutional courts have made extensive use of the principle of proportionality in conducting judicial review of measures that infringe on fundamental rights even during the last health emergency. Through an analysis of constitutional jurisprudence in Italy and Germany, the article reflects on the quadripartite structure of proportionality to highlight the reasons that justify its wide application even in an emergency context. In summary, these reasons can be encapsulated in the following concepts: contextual approach, flexibility, dynamic evaluation, connection to the state of scientific knowledge and to the level of uncertainty, time sensitivity, and relationality to both scientific evidence and political assessments.   

Keywords: Constitutional reasoning; Contextual approach; Emergency; Proportionality; Scientific evidence.