BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

first subrule, he explains that in Brazil the idea that the medium is “adequate” when able to “reach” the intended end is widespread. However, he argues that for the German Constitutional Court, the most correct analysis is to “encourage”, so that a measure can only be considered inadequate when its use does not contribute to promoting the intended objective. 15 In this approach, it should be admitted that the nominal disclosure of the salaries of public servants is a suitable means, if not to attain, at least to promote administrative publicity, which is the intended purpose. It, therefore, meets the requirement of adequacy, the first step in the rational methodological procedure for applying the rule of proportionality. With regard to the subrule of “ necessity ,” Wilson Steinmetz 16 points out that “ it is necessary to examine whether, among the means of restriction available and equally effective in achieving the desired purpose, the chosen one is the least restrictive – less harmful or burdensome – to the concerned fundamental right(s)” . In this regard, it should be emphasized that Judge Gilmar Mendes, when analyzing, in a monocratic judgment, the injunction for suspension of security in SS n. 3.902 / SP, had stated that “ the Administration may always seek alternative or intermediate solutions ” and then suggested that “ a hypothetically feasible solution for the intended aim would be the replacement of the employee name by its functional registration ”. It is noted that the FSC itself considered a solution that would undoubtedly affect a lesser degree the fundamental right to privacy of public servants, without stopping to promote administrative publicity. Unfortunately, this alternative was not mentioned during the judgment of the SS n. 3.902 / SP,nor the RE n.652,777. Facing this possibility, it is clear that the nominal disclosure of salaries is too invasive to the fundamental right to privacy and it seems clearly unnecessary since there is a less restrictive, non-nominal disclosure, linked to the functional registration. There must be no fear in stating that non-nominal disclosure would in no way frustrate the scope of providing transparency and social control over public administration expenditures since the amount spent would be individually detailed. Therefore, any citizen could trigger the control organs, such as the Court of Auditors and the Public Ministry, for a proper review of the public expenses, whether internal or external, if apparently not justified expenditure were found. This means that the measure legitimized by the FSC does not pass the test of necessity proposed by the theory of principles, which would make it unnecessary to examine its proportionality in the strict sense, given the subsidiarity relation already mentioned. However, even if nominal disclosure were considered to be a necessary measure for administrative advertising it would not pass the third step of the examination of proportionality, which is the application of proportionality in the strict sense or “commandment of weighing”.

15 SILVA, V. A da: Proportional and reasonable. Journal of the Courts , São Paulo, v. 798, Apr. 2002, p. 36. 16 STEINMETZ, W.: Principle of proportionality and acts of private autonomy restricting fundamental rights. In : Virgílio Afonso da Silva (Org.), Constitutional Interpretation. 1. ed. 3. tir., São Paulo: Malheiros Editores, 2010, p. 40.

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