Pandemic Measures in Europe: Legitimacy and Proportionality under the Lens of Transparency
The Covid-19 pandemic is the first case of strong, widespread limitation of constitutional rights and freedoms in Europe since the end of the Second World War. In particular, freedom of movement and economic rights have been significantly restricted in order to protect public health. Therefore, reasonableness, proportionality and transparency should guide governments and lawmaking bodies more than in ordinary times. In many European countries, pandemic legal measures have been adopted on the basis of scientific evidence, technical assessments, and statistical data. Nonetheless, this information has been either partially disclosed or not disclosed at all to the public. Many legal provisions have been approved after numerous consultations with scientists, but without comprehensive, publicly transparent communication of datasets, criteria, potential errors, etc. This lack of transparency could undermine the legitimacy of the measures adopted and prevent a complete proportionality assessment in case of judicial disputes. The project will analyze: (i) whether scientific data have been officially disclosed to the public by governments of selected European countries; (ii) whether and how such data has been used by courts; (iii) whether a higher degree of transparency in decision-making processes is constitutionally warranted in the context of this massive limitation of rights and freedoms.