BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Without prejudice, this fundamental right of the public servants, to maintain secrecy about their remuneration data, is not an absolute right, its amplitude must be delimited in the case of normative conflicts, in the terms in which it advocates the theory of principles. This is the debate we will propose in the next topic. What does not seem correct is to consider the public servers non-existent or to understand that, from the moment they are appointed to a public position, they are excluded from the protection granted by the Federal Constitution to all. 5. The Regulatory Conflict between the Fundamental Right to Privacy and Administrative Disclosure / Fundamental Right to get Information from Public Organs In view of what has been noted so far, it must be pointed out that the nominal disclosure of public servants’ salaries affecting their fundamental right to privacy, requiring the Supreme Court to examine the normative conflict with administrative publicity and the fundamental right to obtain information of particular or collective interest from public bodies, which guided thedecision issued in RE n. 652,777. The fundamental right to privacy, from the point of view of the principles theory of Robert Alexy, 12 has the nature of norm-principle and it needs to be fulfilled as much as it is possible considering the factual and legal conditions. Administrative publicity, likewise, has this nature as an optimization command, while the fundamental right listed in item XXXIII of article 5 is a rule-norm, it has the character of a definitive commandment as far as it guarantees rights and imposes duties and must be applied in its entirety. There are then two normative conflicts: the first, between the fundamental right to privacy and administrative publicity, which is a collision between principles; the second, between the fundamental right to privacy and the fundamental right to obtain information of particular or collective interest from public agencies, which characterizes a conflict between principle and rule. As already explained, the solution advocated by Alexy 13 to solve conflicts between principle and rule is to carry out the balancing between the principle in collision and the principle on which the rule is based on. In the case of article 5, subsection XXXIII, it does not seem difficult to conclude that this is a rule based on administrative disclosure itself. It is now necessary to return to the method proposed by the theory of principles to solve this collision, that is, the rule of proportionality, and its three subrules: adequacy, necessity and proportionality in the strict sense. For a correct application of this methodology, it is important to observe the existence of a subsidiarity relation, according to Luís Virgílio Afonso da Silva, 14 that is, one should first examine the adequacy, in order to follow if it is necessary and only at the end to proceed to the analysis of proportionality in the strict sense. Dealing with the 12 ALEXY, R.: Fundamental Rights Theory. 2 ed. São Paulo: Malheiros Editores, 2012. 13 ALEXY, R.: Fundamental Rights Theory. 2 ed. São Paulo: Malheiros Editores, 2012. 14 SILVA, V. A da: Proportional and reasonable. Journal of the Courts , São Paulo, v. 798, Apr. 2002, p. 34.

195