Ombudsman requires verification of the constitutionality of the rule that exempts tenants in shopping centers from minimum rent

The Ombudsman requested the Constitutional Court to abstractly review the constitutionality of the norm contained in no. 5 of article 168-A of Law no. 2/2020, of 31 March, that approved the State Budget for 2020, as amended by Law no. 27-A/2020, of 24 July, that approved the Supplementary State Budget, because it understood that this norm contains unconstitutional restrictions on the right to private property and freedom of private economic initiative, by not complying with the requirements arising from the principles of proportionality and equality.

At issue is the standard according to which "where specific forms of contracts for the operation of properties for commerce and services in shopping centers are applicable, no minimum rent is payable until 31 December 2020, with only the payment of the variable component of the rent, calculated on sales made by the tenant, remaining the responsibility on the part of the tenants for the payment of all expenses contractually agreed, namely those relating to common charges and expenses".

By exempting tenants in shopping centers from the payment of the minimum remuneration due to center owners or managers under contracts already in force, the legislator has restricted the fundamental rights to private property and free enterprise of those owners and managers. Since this is a possibility provided for in the Constitution, especially in times of exception such as those currently imposed by virtue of the pandemic, the Ombudsman believes, however, that these restrictions were imposed without taking into account the "prohibition of excess", that is, without respecting the subprinciples of suitability, enforceability and proportionality that, according to the jurisprudence of the Constitutional Court, can make acceptable and legitimate restrictions of fundamental rights.

To read the Ombudsman’s reasoning, which accompanies the request for inspection delivered to the Constitutional Court, click here.