Abstract

This paper supports the idea that the proportionality test works as an analytical framework in adjudicating social rights. In particular, suitability and alternative means tests should gain relevance and stop being the neglected steps of the proportionality test. Suitability and alternative means tests are reinforced by considering several aspects, such as quantitative, qualitative and probabilistic. In this vein, it serves to rebut the position which sustains that proportionality as a safeguard against the state not doing enough is pure balancing. Suitability and alternative means tests state what has been done and what is possible to be done to promote the social rights in question. In sum, the work shows that this basic structure of proportionality can be used as an analytical tool to reconstruct decisions about social rights adjudication. Therefore, there is no reason for the Courts not to make more systematic use of the three-part test of proportionality, at least seen from the analytical level.