The Plenary Session of the Constitutional Court (TC) rejected, with four votes against, the unconstitutionality appeal presented by the PP against decree-Law 9/2021 on digital platform distributors, known as “rider law”, approved by whole pandemic.
In September, the court of guarantees was already progressing in its endorsement of the regulations when the Plenary rejected a draft judgment prepared by Judge Ricardo Enríquez who was inclined to admit for the processing of the appeal also presented by Vox is against that regulation when it concludes that it is not The “unique and urgent need” to be able to resort to the law, ignoring its ordinary processing, appreciated. The aforementioned decree-law modifies the Workers’ Statute to “guarantee the labor rights of people dedicated to delivery in the field of digital platforms.”
The PP correctly argues that there is no emergency situation that justifies the regulation of this matter by decree-law of the Government that “abuses its power to avoid the control of the parliament.”
The judgment, of which Judge Ramón Sáez is the rapporteur, shows that the approval of the aforementioned decree-law does not violate the provisions of article 86.1 of the Constitution, because the Government “offers a clear and reasonable justification of the urgent need to address the problem of delivery workers”.
Former Minister Campo abstained
A reason, argues the resolution supported by the progressive majority (of six justices, since the former minister Juan Carlos Campo abstained after participating in the processing of the legislative initiative), which is considered sufficient from in the view of the external control that the TC , “which should be limited to confirm, but not replace, the political or opportunistic judgment corresponding to the Government and the Congress of Deputies, which can only be rejected in cases of abusive and arbitrary use.”
According to the presentation approved by the Plenary, the Covid-19 pandemic “represents an unprecedented and unpredictable state of emergency, which has given rise to the declaration of two successive national states of alarm and cause in the destruction of social normality. affecting the legislative production system”.
In this sense, he added, this health crisis “creates the need to define public policies for immediate response to new problems, a need that has found its way” in power of the Government to make laws through decree-law, which is art. 86.1 of the Magna Carta attributes of the Executive.
Among the new needs, he emphasized, are “the extremely dangerous conditions in which the delivery drivers of the digital platform companies provide their services” (as self-employed counterfeiters worker).
“Increasing the number of affected workers”
The judgment emphasizes that the Government of Pedro Sánchez justified this extraordinary and urgent need in many circumstances. On the one hand, the “high and growing number of workers affected by the situation of job insecurity that
“intended to solve”, according to the data resulting from the activity of the General Labor Inspection between the years 2015 and 2021. And, on the other hand, to increase the number of services provided through digital platforms and to ” the problems associated with this reality in the context of the Covid-19 pandemic”.
In addition, it clearly refers to the need to include in our law the doctrine of the judgment of the Social Chamber of the Supreme Court on September 15, 2020 “to provide legal security in an area characterized by strong litigation .” Likewise, it pointed out that the approved measures could contribute to the “economic recovery process in the context of the pandemic” by “increasing the income of workers and including their social contribution to the system.”
And regarding the delay in approving the rule, the TC assures that it is justified by “tripartite social dialogue in consultation and negotiation between the Government, unions and business associations.” In addition, the TC maintained that the measures adopted in the order “are consistent with the established state of emergency.”
Dissenting judges: “This is not a new reality”
The sentence had a dissenting vote by judges Ricardo Enríquez, Enrique Arnaldo, César Tolosa and judge Concepción Espejel. According to them, the protection of workers and people in situations of economic vulnerability that is followed by the decree of the law “is an admirable goal and a constitutional imperative”, but it must be carried out “through the channels provided of the Constitution, not by outside of them.” And, they recalled, the recourse to the decree of the law had a “unique” character, so that the Magna Carta subjected its approval to the Government “to strict formal and material limitations” as a manifestation of democratic principles and separation of powers… “Limitations that the Constitutional Court should interpret strictly and not laxly, as the majority does,” they complained.
For these magistrates, the reasons given by the Government “are not justified in a situation of extraordinary and urgent need” as required by the Constitution. First, he pointed out, digital delivery platforms are “not a new reality”, but the Administration and the Government have known “at least since 2015, when the labor inspection checks began, according to the report. provided by the Government”.
So, they continued, the pandemic “cannot be considered a new reality if the Government approves the law in May 2021, regardless of the activity of delivery drivers during the health crisis.”
Likewise, they consider that the Supreme Court decided that the Government placed the origin of the law order, “more than eight months before its approval (in May 2021), did not create any regulatory vacuum, “as the Govt. On the contrary, he specified, “it consolidates the jurisprudence of the social order courts that since 2018 consider fake self-employed workers operating under the control of digital platforms as” workers .
For the conservative magistrates, the former action of the Government “which, during those eight months of delay, established a negotiation table with social agents and then attached the agreement reached at that table to the true, “not compatible” in a situation of urgent legislative reaction. decree-law 9/2021″. The social dialogue between the representatives of workers and employers “is important for the effectiveness and legitimacy of the reforms, but it does not change the ability of the parliament to debate and approve these reforms if they need to a rule of law,” they concluded.