European Welfare State Constitutions after the Financial Crisis
Edited by ULRICH BECKER
Director at the Max Planck Institute for Social Law and Social Policy
ANASTASIA POULOU
Senior Research Fellow at the Max Planck Institute for Social Law and Social Policy
3
Great Clarendon Street, Oxford, OX2 6DP, United Kingdom
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Preface
Hit by the European financial and economic crisis that erupted in 2008, several Member States of the European Union, namely Latvia, Rumania, and Hungary, and of the European Monetary Union, namely Greece, Ireland, Portugal, and Cyprus, were unable to refinance their gross government debt through the financial market. As a result, they asked for financial assistance not only from already established international institutions, such as the International Monetary Fund or the World Bank, but also from newly created European financial assistance mechanisms, such as the European Financial Stabilisation Mechanism (EFSM), the European Financial Stability Facility (EFSF), and the European Stability Mechanism (ESM). Other EU Member States, such as Italy and Spain, were not officially subjected to a financial assistance scheme, but received informal instructions for the reduction of social security benefits.
Despite their differences, strict conditionality represented a common ground for all types of financial assistance. The award of all loans was made dependent on the recipient state complying with economic policy conditions that were extremely broad in scope. Apart from budgetary discipline, the financial assistance conditions also related to what one would call the core of social policy, namely, cuts in pensions and social assistance, and reforms in public healthcare.
The far-reaching reforms in the field of social security and assistance were in many cases experienced as violations of human rights by the respective rightholders, who sought legal protection in national and international courts. As a result, many national constitutional courts, but also the Court of Justice of the EU and the European Court of Human Rights, issued a series of rulings on the conformity of the social protection reforms that were initiated during the eurozone crisis with constitutional law and human rights. This international and national jurisprudence and the mounting concern about the implications of the relevant reforms in social protection for the application of constitutional law motivated the launch of the proposed edited collection. Given that the majority of countries under examination have exited the crisis, the book seeks to unfold the legacy of the crisis, highlighting the lessons learned from it in the field of social protection and constitutional law.
This book aspires to offer a holistic approach that analyses both (1) the specific reforms in social protection introduced during the European financial crisis and (2) their implications for constitutional law. Against this background, its aim is twofold. First, it records and systematises the crisis-related reforms introduced in the field of social protection broadly understood, covering old-age benefits, social
assistance allowances, unemployment benefits, and healthcare. This is done in a way that depicts the particular crisis experience of each country and links the crisisrelated reforms with the overall national social policy developments. Second, the book aims to locate the social protection reforms within the constitutional framework of each country, by investigating the ways in which the application of constitutional law has changed during the crisis and the impact that this change has had on social democracy and the welfare state. More specifically, we were interested in investigating whether fundamental constitutional and democratic principles of the European welfare state, which traditionally recognises and protects social rights, were altered during the crisis.
At the same time, taking such an approach presents a certain challenge to legal scholarship. To gain a better understanding of the welfare state, it is necessary to dig deeply into the depths of—the often complex—social protection laws, but without losing sight of its constitutional foundations. Yet, social protection law on the one hand and constitutional or human rights law on the other are often dealt with as separate subjects, due to a high degree of specialisation in legal research. We are very grateful that the authors took up this challenge and brought both fields of law together in this project.
We would also like to thank Christina McAllister and Christian Günther for their valuable assistance in bringing this book into a readable and proper form. Finally, we have to thank Natalie Patey and Brianne Bellio from OUP for their kind support and help with the publication process.
Ulrich Becker
Anastasia Poulou
Munich, April 2020
Table of Cases
EUROPEAN COURT OF HUMAN RIGHTS
App nos 21319/93, 21449/93 and 21675/93, judgment of 23 October 1997, National and Provincial Building Society and Others v United Kingdom, ECHR 1997-VII
App no 17371/90, judgment of 16 September 1996, Gaygusuz v Austria, ECHR 1996-IV
169–70
13–14
App no 56679/00, judgment of 28 April 2004 [GC], Azinas v Cyprus, ECHR 2004-III 13–14
App nos 65731/01 and 65900/01, judgment of 12 April [GC], 2006, STEC and Others v United Kingdom, ECHR 2006-VI
App no 12045/06, judgment of 19 June 2008, Ichtigiaroglou v Greece, ECLI:CE:ECHR:2008:0619JUD001204506
13–14, 169–70
170–71
App nos 21838/10 and others, judgment of 15 April, 2014, Stefanetti and Others v Italy, ECLI:CE:ECHR:2014:0415JUD002183810 13–14
App no 13902/11, decision of 20 March 2012, Ionel Panfile v. Romania, CE:ECHR:2012:0320DEC001390211
App no 34929/11, decision of 30 January 2013, E.B. v Hungary, ECLI:CE:ECHR:2013:0115DEC003492911
129–30
54–55
App nos 45312/11 and others, decision of 13 November 2012, Frimu and Others v. Romania, ECLI:CE:ECHR:2012:1113DEC004531211 146
App nos 57665/12 and 57657/12, decision of 7 May 2013, Koufaki and Adedy v Greece, ECLI:CE:ECHR:2013:0507DEC005766512
22–23, 166
App nos 62235/12 and 57725/12, decision of 8 October 2013, Da Conceição Mateus and Santos Januário v Portugal, ECLI:CE:ECHR:2013:1008DEC006223512 13–14, 22–23
App no 53080/13, judgment of 13 December 2016, Béláné Nagy v. Hungary, ECLI:CE:ECHR:2016:1213JUD005308013
COURT OF JUSTICE OF THE EUROPEAN UNION
C-249/96, judgment of 17 February 1998, Lisa Jacqueline Grant v South-West Trains Ltd�, ECLI:EU:C:1998:63
C-370/12, judgment of 27 November 2012, Thomas Pringle v Government of Ireland and Others, ECLI:EU:C:2012:756
61, 350
171
19–20
T-541/10, order of the General Court (First Chamber) of 27 November 2012, Anotati Dioikisi Enoseon Dimosion Ypallilon (ADEDY) v Council of the European Union, ECLI:EU:T:2012:626 40–41, 148
T-215/11, order of the General Court (First Chamber) of 27 November 2012, Anotati Dioikisi Enoseon Dimosion Ypallilon (ADEDY) and Others v Council of the European Union, ECLI:EU:T:2012:627
40–41, 166
C-206/13, judgment of 6 March 2014, Regione Siragusa v Regione Sicilia, ECLI:EU:C:2014:126 10–11
T-327/13, order of the General Court (First Chamber) of 16 October 2014, Mallis and Malli v Commission and ECB, ECLI:EU:T:2014:909 34
T-328/13, order of the General Court (First Chamber) of 16 October 2014, Tameio Pronoias Prosopikou Trapezis Kyprou v Commission and ECB, ECLI:EU:T:2014:906
T-329/13, order of the General Court (First Chamber) of 16 October 2014, Chatzithoma v Commission and ECB, ECLI:EU:T:2014:908 34
T-330/13, order of the General Court (First Chamber) of 16 October 2014, Chatziioannou v Commission and ECB, ECLI:EU:T:2014:904 34
T-331/13, order of the General Court (First Chamber) of 16 October 2014, Nikolaou v Commission and ECB, ECLI:EU:T:2014:905
34
C-105-109/15 P, judgment of 20 September 2016, Mallis and Others v Commission and ECB, ECLI:EU:C:2016:702 30–31, 34–35
C-258/14, judgment of 13 June 2017, Florescu, ECLI:EU:C:2017:448 5, 10–11, 13–14, 29
C-8/15 P to C-10/15 P, judgement of 20 September 2016, Ledra Advertising Ltd and Others v European Commission and European Central Bank (ECB), ECLI:EU:C:2016:701
37–38, 266
C-189/16, judgment of 7 December 2017, Zaniewicz-Dybeck v Pensionsmyndigheten, ECLI:EU:C:2017:946 10–11
C-569/16 and C-570/16, judgment of 6 November 2018, Bauer and Willmeroth, ECLI:EU:C:2018:871
CYPRUS: SUPREME COURT
App no 1722, decision of 27 February 1997, Patsalosavvi-Leontiou v the Republic, (1997) 3 CLR 70
10–11
261
Case no 863/1999, decision of 16 January 2001, Laoutas v the Republic, (2001) 3 CLR 40 274
Case no 369/2001, decision of 23 May 2001, Aziz v the Republic, (2001) 3 CLR 501
Case no 3135, decision of 18 April 2003, Electricity Authority of Cyprus v Filiastidi, (2003) 3 CLR 342
272–73
261
Case no 346/2011, decision of 4 October 2012, Andreas Christou et al v the Republic 261–62
Case nos 551/2013 and others, decision of 7 June 2013, Christodoulou et al v Central Bank of Cyprus et al (2013) 3 CLR 427
Case nos 397/2012 and others, decision of 14 June 2013, Fylactou et al v the Republic, (2013) 3 CLR 565
246–47, 272–73
273–74
Joined Cases nos 1480/2011 and others, decision of 11 June 2014, Charalambous et al v the Republic, ECLI:CY:AD:2014:C386 262, 265–69, 270–73, 274–75
Case no 5894/2013, decision of 11 September 2014, Andreou v Ministry of Labour, Welfare and Social Insurance (Social Welfare Services), ECLI:CY:AD:2014:D667
261–62
Joined Cases nos 740/2011 and others, decision of 7 October 2014, Koutselini-Ioannidou et al v the Republic, ECLI:CY:AD:2014:C748 265, 266–72, 274–75
Joined Cases nos 1034/2013 and others, decision of 9 October 2014, Demetriou et al v Central Bank of Cyprus et al, ECLI:CY:AD:2014:C758
246
Case no 6462/2013, decision of 30 December 2015, Charalambous v the Republic, ECLI:CY:AD:2015:D872 261–62
Case no 426/2015, decision of 31 December 2015, Kakoulli v Ministry of Labour, Welfare and Social Insurance (Department of Social Services), ECLI:CY:AD:2015:D873 261–62
Reference no 2/2016, decision of 7 July 2017, President v House of Representatives, ECLI:CY:AD:2017:C243
CYPRUS: ADMINISTRATIVE COURT
App no 5808/2013, decision of 10 February 2016, Demourtsidou v the Republic, ECLI:CY:DD:2016:15
272–73
261–62
Joined App nos 441/2014 and others, decision of 12 November 2018, Christodoulidou et al v the Republic, ECLI:CY:DD:2018:499 267–68, 271–72
Joined App nos 898/2013 and others, decision of 27 November 2018, Avgousti et al v the Republic, ECLI:CY:DD:2018:517
App no 620/2014, decision of 19 December 2018, Papadopoulou v the Republic, ECLI:CY:DD:2018:545
258–59, 268–71, 275
273–74
App no 6182/2013, decision of 28 December 2018, Hadjipanagiotis et al v the Republic, ECLI:CY:DD:2018:550 268–69
Joined App nos 6175/2013 and others, decision of 15 March 2019, Parklane Hotels Ltd et al v the Republic, ECLI:CY:DD:2019:132
Joined App nos 1713/2011 and others, decision of 29 March 2019, Filippou et al v the Republic, ECLI:CY:DD:2019:150
247
270–71, 275
Joined App nos 611/2012 and others, decision of 29 March 2019, Koundourou et al v the Republic, ECLI:CY:DD:2019:155 270, 275
Joined App nos 98/2013 and others, decision of 29 March 2019, Nicolaidi et al v the Republic, ECLI:CY:DD:2019:160
App no 1375/2017, decision of 30 May 2019, Parparinou v the Republic, ECLI:CY:DD:2019:294
258–59, 269–71, 275
273–74
App no 1680/2015, decision of 3 June 2019, Hadjihambis et al v the Republic, ECLI:CY:DD:2019:318 273–74
App no 1187/2014, decision of 3 June 2019, Hadjihambis v the Republic, ECLI:CY:DD:2019:317
App no 526/2015, decision of 3 June 2019, Paschalides v the Republic, ECLI:CY:DD:2019:320
273–74
273–74
App no 235/2015, decision of 3 June 2019, Paschalides v the Republic, ECLI:CY:DD:2019:319 273–74
App no 440/2017, decision of 4 June 2019, Pamballi v the Republic, ECLI:CY:DD:2019:324
App no 1291/2018, decision of 14 June 2019, Kleanthous v the Republic, ECLI:CY:DD:2019:340
273–74
273–74
App no 439/2017, decision of 26 June 2019, Nicolatos v the Republic, ECLI:CY:DD:2019:358 273–74
App no 830/2017, decision of 28 June 20019, Spiridaki v the Republic, ECLI:CY:DD:2019:378
270–71
App no 982/2018, decision of 4 July 2019, Pouyiourou v the Republic, ECLI:CY:DD:2019:393 273–74
App no 320/2015, decision of 29 July 2019, Petridi v the Republic, ECLI:CY:DD:2019:442 270–71
App no 527/2017, decision of 29 July 2019, Michaelidou v the Republic, ECLI:CY:DD:2019:445
273–74
CYPRUS: DISTRICT COURT
Case no 3005/2013, decision of 17 July 2013, Santis v Bank of Cyprus Public Company Ltd et al, ECLI:CY:EDLEF:2013:A281 246
Case no 4990/2013, interim decision of 30 April 2014, Green Power Energy Ltd v Cyprus Popular Bank Public Company Ltd et al, ECLI:CY:EDLEM:2014:A189
Case no 6914/2012, decision of 22 March 2017, Pancyprian Organization of Large Families et al v Attorney-General 261
HUNGARY: CONSTITUTIONAL COURT
24/1991 (V 18 ) order of 7 May 1991, Social Insurance Fund, 1991/363 67 43/1995 (VI 30 ), decision of 30 June 1995, Legal certainty, Constitutional State and Right to social security, 1995/188
71, 72 32/1998 (VI� 25), decision of 22 June 1998, Right to social security, 1998/251
67–68 42/2000 (XI�8�), decision of 7 November 2000, Right to social security and right to housing, 2000/329 72 1228/B/2010 (VI 07 ), decision of 7 June, 2010, Social insurance pension, 2011/2252 61 28/2015 (IX�24�), decision of 22 September 2015, Early retirement for women, 2015/0028
21/2018 (XI�14�), decision of 6 November 2018, Rehabilitation benefit, disability benefit and international (ECHR and UN CRPD) and national law compliance, 2018/507 61
GERMANY: FEDERAL CONSTITUTIONAL COURT
1 BvR 596/56, judgment of 11 November 1958, Apothekenurteil, 7 BVerfGE 377 14–15
2 BvE 2/08 and others, judgment of 30 June 2009, Lisbon, 123 BVerfGE 267
1 BvL 1/09 and others, judgment of 9 February 2010, Arbeitslosengeld II, 125 BVerfGE 175
10
12, 172–73
2 BvR 2661/06, judgment of 6 July 2010, Honeywell, 126 BVerfGE 268 10
2 BvR 987/10 and others, judgement of 7 September 2011, Griechenland-Hilfe und Euro-Rettungsschirm, 129 BVerfGE 124 167–68
1 BvL 10/10, judgment of 18 July 2012, Asylbewerberleistungsgesetz, 132 BVerfGE 134
12
2 BvR 2728/13 and others, decision of 14 January 2014, OMT, 134 BVerfGE 366 10
GREECE: COUNCIL OF STATE
5024/1987, judgment of 2 December 1987 (plenary session)
241/1989, judgment of 30 January 1989
4387/1997, judgment of 20 October 1997 154–55
3478/2008, judgment of 26 November 2008
3487/2008, judgment of 27 November 2008 (plenary session)
1187–8/2009, judgment of 2 April 2009 (plenary session)
1663/2009, judgment of 13 May 2009 (plenary session) 169–70
1689/2009, judgment of 18 May 2009 (7-member chamber) 153 2024/2009, judgment of 15 June 2009 153
2999/2009, judgment of 5 October 2009 173
2679/2011, judgment of 19 September 2011 (plenary session) 173
668/2012, judgment of 20 February 2012 (plenary session) 38, 169
1283-6/2012, judgment of 2 April 2012 (plenary session)
1812/2013, judgment of 13 May 2013
3613/2013, judgment of 21 October 2013 (7-member chamber)
38, 170–71
173
3016/2014, judgment of 19 September 2014 (plenary session) 174–75
3724/2014, judgment of 27 October 2014 (plenary session) 175
3410/2014, judgment of 13 October 2014 (7-member chamber) 153
3663/2014, judgment of 23 October 2014 (7-member chamber)
3962/2014, judgment of 11 November 2014 (plenary session)
153
177–78
2288–2290/2015, judgment of 10 June 2015 (plenary session) 153, 154, 158–59, 167–68, 171–72, 175–76
734/2016, judgment of 17 March 2016 (plenary session) 173
1749/2016, judgment of 16 September 2016 (plenary session) 154–55, 178
2677/2016, judgment of 13 December 2016 (7-member chamber)
960/2017, judgment of 3 April 2017 (7-member chamber)
1580–1/2017, judgment of 12 June 2017
3047–8/2017, judgment of 28 November 2017 (7-member chamber)
1010/2019, judgment of 28 May 2019 (7-member chamber) 153 1374/2019, judgment of 25 July 2019
1784-5/2019, judgment of 24 September 2019
179 1880–1897/2019, judgment of 4 October 2019 (plenary session)
173–74 1891/2019, judgment of 4 October 2019 (plenary session)
153, 154 1900–1904/2019, judgment of 4 October 2019 (plenary session) 173–74 2126/2019, judgment of 4 November 2019 153 1439-1443/2020, judgment of 14 July 2020 (plenary session)
IRELAND: IRISH HIGH COURT
Judgment of 9 July 1980, Cahill v Sutton [1980] IR 269
Judgment of 31 July 2009, Curran v Minister for Education [2009] 4 IR 300
Judgment of 17 December 2009, J & J Haire & Company Ltd and Others v Minister for Health and Children and Others [2009] IEHC 562
159, 174–75
200–1
204
201–2
Judgment of 25 March 2010, Garda Representative Association (GRA) v Minister for Finance [2010] IEHC 78 201–2
Judgment of 8 October 2010, Unite the Union and Paul Gallagher v Minister for Finance [2010] IEHC 354
IRELAND: IRISH SUPREME COURT
Judgment of 1984, Brennan v Attorney General [1984] ILRM 355
Judgment of 1984, Madigan v Attorney General [1986] ILRM 136
201–2
201–2
201–2
Judgment of 19 July 2001, Glencar Exploration plc v Mayo County Council (No. 2) [2002] 1 IR 84 201–2, 204
Judgment of 3 February 2011, Dellway Investments Limited and Others v National Asset Management Agency [2011] 4 JIC 1202
ITALY: CONSTITUTIONAL COURT
201–2
260/1990, judgment of 23 May 1990 306 356/1992, judgment of 8 July 1992
78/1995, judgment of 23 February 1995 306
88/1995, judgment of 8 March 1995 306
309/1999, judgment of 7 July 1999 306
376/2000, judgment of 12 July 2000
252/2001, judgment of 5 July 2001
16/2010, judgment of 13 January 2010
52/2010, judgment of 10 February 2010
326/2010, judgment of 3 November 2010
232/2011, judgment of 19 July 2011
148/2012, judgment of 4 June 2012
193/2012, judgment of 17 July 2012
198/2012, judgment of 17 July 2012
223/2012, judgment of 8 October 2012
60/2013, judgment of 26 March 2013
116/2013, judgment of 3 June 2013
138/2013, judgment of 5 June 2013
205/2013, judgment of 3 July 2013
229/2013, judgment of 16 July 2013
236/2013judgment of 17 July 2013
304/2013, judgment of 4 December 2013
310/2013, judgment of 10 December 2013
22/2014, judgment of 10 February 2014
23/2014, judgment of 10 February 2014
39/2014, judgment of 26 February 2014
40/2014, judgment of 26 February 2014
79/2014, judgment of 7 April 2014 300–1
88/2014, judgment of 7 April 2014
188/2014, judgment of 23 June 2014
10/2015, judgment of 9 February 2015
judgment of 10 March 2015
judgment of 24 March 2015
152/2015, judgment of 9 June 2015
178/2015, judgment of 24 June 2015
188/2015, judgment of 9 June 2015
227/2015, judgment of 7 October 2015
250/2015, judgment of 3 November 2015
judgment of 1 December 2015
10/2016, judgment of 12 January 2016
65/2016, judgment of 10 February 2016
127/2016, judgment of 3 May 2016
151/2016, judgment of 3 May 2016
160/2016, judgment of 17 May 2016
186/2016, judgment of 6 July 2016
202/2016, judgment of 3 May 2016
205/2016, judgment of 6 July 2016
275/2016, judgment of 19 October 2016
106/2017, judgment of 11 April 2017
135/2017, judgment of 9 May 2017
150/2017, judgment of 11 April 2017
154/2017, judgment of 9 May 2017
169/2017, judgment of 21 March 2017
190/2017, judgment of 23 May 2017
247/2017, judgment of 11 October 2017 305 250/2017, judgment of 25 October 2017 307 61/2018, judgment of 23 January 2018 307, 310 83/2019, judgment of 20 February 2019
LATVIA: CONSTITUTIONAL COURT
Case no 2009-08-01, decision of 27 November 2009, ‘On Compliance of the Words “State Pensions Shall Not Be Revised in 2009” of Section 2 of Law “On Amendments to Law On State Pensions” of 12 March 2009 with Article 1 and Article 109 of the Satversme of the Republic of Latvia’, OG no 187 of 27 November 2009 83–84
Case no 2009-43-01, decision of 21 December 2009, ‘On Compliance of the First Part of Article 3 of the Law “On State Pension and Allowance Disbursement from 2009 to 2012” insofar as it Applies to State Old-Age Pension with Article 1, Article 91, Article 105 and Article 109 of the Satversme of the Republic of Latvia’, OG no 201 of 22 December 2009 82, 83–84
Case no 2009-44-01, decision of 15 March 2010, ‘On Compliance of Section 5 (1) of Law On Payment of State Allowances during the Time Period from 2009 to 2012 with Article 1, Article 91 and Article 109 of the Satversme (Constitution) of the Republic of Latvia’, OG no 43 of 17 March 2010
Case no 2009-76-01, decision of 31 March 2010, ‘On Compliance of Point 20 of the Transitional Provisions of the Law “On Long-Service Pensions for Ministry of the Interior System Employees with Special Service Ranks” with Article 1 and 109 of the Satversme of the Republic of Latvia’, OG no 54 of 6 April 2010
83–84
83–84
Case no 2009-86-01, decision of 21 April 2010, ‘On Compliance of Point 8 of the Transitional Provisions of the Law on Long Service Pensions for Public Prosecutors with Article 1, Article 91 and Article 109 of the Satversme of the Republic of Latvia’, OG no 65 of 23 April 2010 83–84
Case no 2009-88-01, decision of 15 April 2010, ‘On Compliance of Points 14, 16 and 17 of the Transitional Provisions of the Law “On Long Service Pensions of Military Persons” with Article 1, Article 91 and Article 109 of the Satversme of the Republic of Latvia’, OG no 62 of 20 April 2020
PORTUGAL: CONSTITUTIONAL COURT
83–84
411/99, judgment of 29 June 1999, Direito à pensão, DRE, Série II, of 10 March 2000 233n 128 620/2007, judgment of 20 December 2011, Regimes de vinculação, de carreiras e de remunerações dos trabalhadores que exercem funções públicas, DRE, Série I, of 11 January 2008
223n�106 396/2011, judgment of 21 September 2011, Lei do Orçamento do Estado para 2011, DRE, Série I, of 20 July 2012
38, 223n�106, 264 353/2012, judgment of 5 July 2012, Lei do Orçamento do Estado para 2012, DRE, Série II, of 17 October 2011 38, 225, 226 187/2013, judgment of 5 April 2013, Lei do Orçamento do Estado para 2013, DRE, Série I, of 22 April 2013
14, 38, 216–17n�63, 226, 228–29 862/2013, judgment of 19 December 2013, Mecanismos de convergência de proteção social, DRE Série I, of 7 January, 2014
14, 216–17n�64, 228–29 413/2014, judgment of 30 May 2014, Lei do Orçamento do Estado para 2014, DRE, Série I, of 26 June 2014 218n 78, 230–31
572/2014, judgment of 30 July 2014, Primeira alteração à Lei do Orçamento do Estado para 2014, DRE, Série II, of 21 August 2014 216–17n 65, 229, 231
575/2014, judgment of 14 August 2014, Contribuição de sustentabilidade, DRE, Série I, of 3 September 2014
230 141/2015, judgment of 25 February 2015, Período de residência mínima para acesso ao rendimento social de inserção, DRE, Série I, of 16 March 2015 231 296/2015, judgment of 25 May 2015, Período de residência mínima para acesso ao rendimento social de inserção, DRE, Série I, of 15 June 2015 231 494/2015, judgment of 7 October 2015, Acordos coletivos de empregador público no âmbito da administração autárquica, DRE, Série I, of 22 October 2015
ROMANIA: CONSTITUTIONAL COURT
Decision no� 20 of 2 February 2000, 5AI/2000, OG 72/18�02�2000
133
Decision no 375 of 6 July 2005, 565AI/2005, OG 591/08 07 2005 129–30, 133
Decision no 1094 of 15 October 2008, 1983AI/2008, OG 721/23 10 2008 140–41
Decision no 1221 of 12 November 2008, 2179D/2008, OG 804/02 12 2008 127
Decision no� 82 of 15 January 2009, 42D/2009, OG 33/16�01�2009
Decision no 842 of 2 June 2009, 884D/2009, OG 464/06�07�2009
Decision no� 984 of 30 June 2009, 1104D/2009, OG 542/04�08�2009
126–27
127
127
Decision no 989 of 30 June 2009, 1065D/2009, OG 531/31 07 2009 127
Decision no 1414 of 4 November 2009, 7271AI/2009, OG 796/23 11 2009 129, 136, 142
Decision no� 871 of 25 June 2010, 1522AI/2010, OG 433/28�06�2010
Decision no� 872 of 25 June 2010, 1532AI/2010, OG 433/28�06�2010
Decision no� 873 of 25 June 2010, 1533AI/2010, OG 433/28�06�2010
132, 134, 139–40
128, 130
132
Decision no 874 of 25 June 2010, 1542AI/2010, OG 433/28 06 2010 128, 130
Decision no 297 of 1 March 2011, 952D/2010, OG 513/02 07 2011 129
Decision no� 1283 of 29 September 2011, 4694D/2010, OG 826/22�11�2011
Decision no� 1284 of 29 September 2011, 4753D/2010, OG 838/25�11�2011
Decision no� 1285 of 29 September 2011, 77D/2011, OG 845/29�11�2011
Decision no� 1380 of 18 October 2011, 976D/2011, OG 847/29�11�2011
140–41
141
141
133–34
Decision no 297 of 27 March 2012, 1200D/2011, OG 309/09 05 2012 140
Decision no 193 of 2 April 2013, 112D/2013, OG 416/10 07 2013 144
Decision no� 42 of 22 January 2014, 488D/2013, OG 210/25�03�2014
Decision no� 346 of 17 June 2014, 290D/2014, OG 591/07�08�2014
Decision no� 482 of 23 September 2014, 606D/2014, OG 848/20�11�2014
Decision no� 170 of 19 March 2015, 1036D/2014, OG 354/22�05�2015
143
Decision no 278 of 23 April 2015, 1363D/2014, OG 447/23 06 2015 127
Decision no 441 of 9 June 2015, 538D/2015, OG 571/30 07 2015 144
Decision no� 508 of 30 June 2015, 376D/2015, OG 618/14�08�2015
Decision no� 541 of 14 July 2015, 974D/2015, OG 622/17�08�2015
Decision no� 644 of 13 October 2015, 258D/2015, OG 899/03�12�2015
144
144
144
Decision no 660 of 15 October 2015, 120D/2015, OG 891/27 11 2015 144
Decision no 443 of 21 June 2016, 475D/2016, OG 580/29 07 2016 127–28, 144
Decision no 681 of 2 November 2017, 1697D/2016, OG 148/16 02 2018 127–28, 144
ROMANIA: HIGH COURT
Decision no 16 of 8 June 2015, 689/1/2015, OG 525/15 07 2015 144
SPAIN: CONSTITUTIONAL COURT
STC 32/1981, Pleno judgment of 28 July 1981, BOE nº 193 of 13 August 1981 313–14
STC 29/1982, Pleno judgment of 31 May 1982, BOE nº 153 of 28 June 1982 331
STC 127/1987, Pleno� judgment of 16 July 1987, BOE nº� 191 of 11 August 1987
STC 134/1987, Pleno� judgment of 21 July 1987, BOE nº� 191 of 11 August 1987
332
332
STC 227/1988, Pleno� judgment of 29 November, BOE nº� 307 of 23 December 1988 334
STC 100/1990, Pleno judgment of 30 May 1990, BOE nº 147 of 20 June 1990 329
STC 126/1994, Sala Primera judgment of 25 April 1994, BOE nº� 129 of 31 May 1994
STC 239/2002, Pleno� judgment of 11 December 2002, BOE nº� 9 of 10 January 2003
313
STC 30/2011, Pleno judgment of 16 March 2011, BOE nº 86 of 11 April 2011 334
STC 137/2011, Pleno judgment of 14 September 2011, BOE nº 245 of 11 October 2011 331–32
STC 49/2015, Pleno� judgment of 5 March 2015, BOE nº� 85 of 9 April 2015
STC 144/2015, Sala Primera� judgment of 22 June 2015� BOE nº� 182 of 31 July 2015
331–32
331–32
STC 233/2015, Pleno judgment of 5 November 2015, BOE nº 296 of 11 December 2015 334
STC 139/2016, Pleno judgment of 21 July 2016, BOE nº 196 of 15 August 2016
STC 33/2017, Pleno� judgment of 1 March 2017, BOE nº� 83 of 7 April 2017
STC 63/2017, Pleno� judgment of 1 May 2017, BOE nº� 156 of 1 July 2017
329, 333
333
333
STC 64/2017, Pleno judgment of 25 May 2017, BOE nº 156 of 1 July 2017 333
STC 98/2017, Pleno judgment of 20 July 2017, BOE nº 191 of 11 August 2017 333
STC 134/2017, Pleno� judgment of 16 November 2017, BOE nº� 308 of 20 December 2017
STC 140/2017, Pleno� judgment of 30 November 2017, BOE nº� 7 of 8 January 2018
333, 334
334
STC 145/2017, Pleno judgment of 14 December 2017, BOE nº 15 of 16 January 2018 333, 334
UK: HIGH COURT OF JUSTICE
High Court of Justice (England and Wales) in R (on the application of Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin)
1 Introduction
I. Starting points
1. How did the European financial crisis change the constitution of welfare states?
The well-known background of this question can be summarised very briefly. The financial crisis, which reached Europe in 2008 in a time of economic recession, led to a debt crisis in 2009; a series of Member States of the European Union (EU) had to reduce their budgetary deficits. In this context, and more or less strongly influenced by European and international institutions, they undertook different measures to cut expenditure, and they reacted, in particular, with cutbacks in social rights. These austerity measures continue to be highly disputed for good reasons. Their economic effectiveness and their political feasibility remain questionable. But this discussion will not be taken up here. We shall focus on the issue from a legal perspective. It is obvious that the financial crisis hit European states as an external shock, and the question we are interested in, and that the following chapters will deal with, is how the legal systems that can be understood as the backbones of welfare states have managed to cope with this shock. In this context, our understanding of the constitution of welfare states is twofold.
First, European states conceive of themselves as political communities that take care of the well-being of the people living in their territory.1 There is a certain common understanding that they should do so, and the normative foundation for this can be found in the law of the European Union as well as in national constitutions. The so-called European social model2 is based on a combination of guaranteeing individual freedoms and enabling their actual enjoyment, but it is a loose concept as far as the institutional settings and the level of social protection are concerned. States have to make political decisions in this respect,3 and these decisions become tangible and receive a binding character once they have been transformed into legal documents. Social (protection) law is the instrument for putting social policy into practice. At the same time, it reflects fundamental ideas on the right and just construction of a political community, in particular on the legitimacy of public interventions, or how far governments should be entrusted with the task of influencing societal and individual behaviour. This is why modifications of social (protection) law are not a mere technicality but reveal, at least if they are of considerable importance and go beyond mere adjustments, changes in the very constitution of welfare states.
Second, it is constitutional law that forms and frames the welfare state. In the context of the financial crisis, the question arises as to whether and, if so, in what way it has been used in order to control and correct austerity measures and thus to stabilise the welfare state. And one might also expect with regard to its functioning that the financial crisis had some impact on its application.
2. It is this double-sided understanding of the constitution of welfare states that serves as a background to this book, which aims to provide a detailed analysis of crisis-driven changes in a comparative perspective. It concentrates on those nine EU Member States that were particularly affected by the financial crisis. We have subdivided them into three groups: the first consists of Hungary, Latvia, and Romania. All three are non-eurozone Member States that received financial assistance from the International Monetary Fund (IMF) and the World Bank, as well as from the EU in the form of a balance of payments according to article 143 of the Treaty on the Functioning of the EU (TFEU). These countries are of particular interest, since they were the first countries to receive financial assistance in the wake of the financial crisis and thus served as precedential cases for the bailout of eurozone Member
1 It is noteworthy that this territorial responsibility is not restricted to their (own) citizens, although we do not elaborate on migration issues here; see for further explanations Ulrich Becker, ‘The Challenge of Migration to the Welfare State’ in Eyal Benvenisti and Georg Nolte (eds), The Welfare State, Globalization, and International Law (Springer 2003) 1.
2 See Commission, ‘European Social Policy, A Way Forward for the Union, A White Paper’ COM (94) 333 final, 9, pointing at ‘shared values’ as a basis, ‘held together by the conviction that economic and social progress must go hand in hand’.
3 Which is the reason why different ‘welfare state models’ are under discussion, see Wil A Arts and John Gelissen, ‘Models of the Welfare State’ in Francis G Castles and others (eds), The Oxford Handbook of the Welfare State (OUP 2010)—even though most states do not follow one coherent social policy approach anyway.
States. The second group comprises Greece, Ireland, Portugal, and Cyprus. These are eurozone Member States that received financial assistance from the newly created European assistance mechanisms (EFSM, EFSF, ESM) and the IMF. The third group of country reports encompasses Italy and Spain. Both received instructions to reduce social protection benefits, even if in their case the crisis management measures were not formally prescribed by supranational organisations.
In its substance, the book combines two legal fields. On the one hand, the national reports document and systematise the crisis-related reforms introduced in the field of social protection as it is broadly understood, covering old-age benefits, social assistance allowances, unemployment benefits, family benefits, and healthcare. This part depicts the specific crisis experience of each country and links the crisis-related reforms to the overall national social policy developments. On the other hand, the national reports also investigate what role constitutional law played in controlling the social protection reforms and the ways in which the application of constitutional law has changed during the crisis. This allows an assessment of whether the fundamental constitutional principles of the European welfare state that traditionally protect social rights were altered during the crisis.
This study can build on previously collected information about recent changes of national social protection systems, such as reports from the World Health Organization (WHO) Regional Office for Europe,4 the European Trade Union Institute,5 or the European Social Observatory,6 although they do not claim to offer a systematic and comprehensive legal analysis. Yet, they do highlight the practical outcome of the austerity measures, and the publications on the relationship between those measures and the now poor level of healthcare in various EU Member States hit by the financial crisis7 are impressive. Recent research on concepts of the welfare state and their development throughout the years of the crisis concentrates on general theories of welfare state models rather than on a systematic assessment of reforms that were introduced as a reaction to the debt crisis.8 It can serve as
4 Anna Maresso and others, Economic Crisis, Health Systems and Health in Europe (Observatory Studies Series 41, WHO Regional Office for Europe 2014); Philipa Mladovsky and others, Health Policy Responses to the Financial Crisis in Europe (WHO Regional Office for Europe 2012).
5 Furio Stamati and Rita Baeten, Health Care Reforms and the Crisis (European Trade Union Institute Report 134, 2014).
6 Rita Baeten and others, ‘Health Care Policies: European Debate and National Reforms’ in David Natali and others (eds), Social Developments in the European Union 2011 (European Social Observatory 2012).
7 Gesellschaft für Versicherungswissenschaft und -gestaltung (GVG) (ed), 14. Euroforum: Auswirkungen der Euro-Krise auf die nationale Gesundheitspolitik: Dokumentation des GVG-Euroforums in Potsdam am 11. Oktober 2012 vol 72 (Schriftenreihe der GVG 2013); Marina Karanikolos and others, ‘Financial Crisis, Austerity and Health in Europe’ (2013) 381(9874) The Lancet 1323; Emmanuele Pavolini and others (eds), Health Care Systems in Europe under Austerity (Palgrave Macmillan 2013); David Stuckler and Sanjay Basu, The Body Economic: Why Austerity Kills (Gildan Media 2013).
8 Jon Erik Dølvik and Andrew Martin (ed), European Social Models from Crisis to Crisis: Employment and Inequality in the Era of Monetary Integration (OUP 2014); Anton Hemerijck, Changing Welfare States (OUP 2012); Martin Rhodes (ed), Southern European Welfare States: Between Crisis and Reform (Routledge Chapman & Hall 2014); Maria Petmesidou and Ana Marta Guillén (eds), Economic Crisis and Austerity in Southern Europe: Threat or Opportunity for a Sustainable Welfare State (Routledge 2015).
background information as it hints at the already mentioned fundamentals of welfare states and their normative content. However, it documents rather generally the various welfare state transformations across European countries,9 without taking legal instruments of implementation into account or showing a particular interest in the role of financial assistance.
While our study does not try to paint a general picture of recent social rights developments,10 its focus and approach is, at the same time, different from the existing legal literature on these crisis-driven developments. We do not concentrate on an assessment at European level11 or on the asymmetry between different political levels of regulation and the correspondent subject matters,12 although the legal impact of this asymmetry has been discussed for a long time with regard to social protection.13 Instead, we will provide, in Chapter 2, an analytical overview of the background of EU law. Actions at the international and European level served as a starting point for processes taking place at national level, namely, first and foremost, social protection law reforms and, second, their constitutional framing. The interplay between these processes shows the interaction of supranational and international measures in the framing of the national responses, as well as the interaction between crisis-induced reforms and previous processes of reforms.14 It allows for insights into possible changes in the legal systems as such,15 measured by the role of legal doctrine16 and without a theoretical explanation of the role of
9 Including Germany, Scandinavia, and the UK, see Peter Taylor-Gooby, Benjamin Leruth, and Heejung Chung (eds), After Austerity: Welfare State Transformation in Europe after the Great Recession (OUP 2017).
10 Like Toomas Kotkas and Kenneth Veitch (eds), Social Rights in the Welfare State, Origins and Transformations (Routledge 2017), taking up a variety of different aspects.
11 See for this approach Kaarlo Tuori and Klaus Tuori, The Eurozone Crisis: A Constitutional Analysis (CUP 2014); Andreas Fischer-Lescano, Human Rights in Times of Austerity Policy: The EU Institutions and the Conclusion of Memoranda of Understanding (Nomos 2014).
12 See Juan Pablo Bohoslavsky and Letnar Cernic (eds), Making Sovereign Financing and Human Rights Work (Hart Publishing 2014).
13 See for a—rather optimistic—summarisation Ulrich Becker, ‘Sozialstaatlichkeit in der Europäischen Union’ (2015) 19 Europarecht 25–26; for a different view Florian Rödl, ‘Die dialektische Entwicklung des Sozialen im Prozess der europäischen Integration’ in Ulrich Becker and others (eds), Grundlagen und Herausforderungen des Sozialstaats vol 1 (Erich Schmidt Verlag 2014).
14 See for a more general approach Thomas Beukers, Bruno de Witte, and Claire Kilpatrick (eds), Constitutional Change through Euro-Crisis Law (CUP 2017).
15 And not necessarily concentrated on social rights; see in this respect Aoife Nolan (ed), Economic and Social Rights after the Global Financial Crisis (CUP 2014), dealing with the global financial crisis in the post-2007 context and reflecting experiences from countries in a variety of global regions (Spain, USA, Colombia, Argentina, and South Africa) in different fields (including taxation or the labour market). See also Stefano Civitarese Matteucci and Simon Halliday (eds), Social Rights in Europe in an Age of Austerity (Routledge 2017) with a different selection of case studies (choosing the biggest European economies, namely UK, France, Germany, Italy, and Spain).
16 And not so much the role of constitutional amendments; see for the incorporation of the ‘golden rule’ of the fiscal compact within national constitutions Maurice Adams, Federico Fabbrini, and Pierre Larouche (eds), The Constitutionalisation of European Budgetary Constraints (Hart Publishing 2014).
constitutions as such,17 or an overall assessment of the role of a particular national constitution,18 as we assume that this role not only depends on the given national institutions but also might change over time.
In particular, the actual effect of restrictions of social rights plays an important role in the application of the principle of proportionality. In most cases, this principle will serve as the doctrinal basis for court decisions on the constitutionality of restrictions,19 and we may assume that the way it is applied can be influenced by the contextual background of these restrictions: courts might be more reluctant to correct measures if these measures react to situations of a severe and comprehensive financial crisis.20 In order to test this hypothesis, one could try to collect all relevant case law and examine the various outcomes, although this method would not provide an explanation for any results. We would at least have to find out whether the application of the proportionality principle, especially of the necessity test, has changed over time, and whether the financial crisis could, at least with some degree of probability, be regarded as a relevant factor. To answer these questions, one would have to conduct qualitative empirical research and to compare cases before the times of crisis to those during the crisis, putting attention not so much on results as on the details of judicial control.21 Such a historical-legal comparative method may also be used if we want to learn more about all other possible impacts of the financial crisis on welfare state constitutions. While it is a fastidious, even tedious, task, a detailed examination of the legal measures and of case law forms an unavoidable part of legal analysis in this context.
17 See for that question Poul Kjaer, Gunther Teubner, and Alberto Febbrajo (eds), The Financial Crisis in Constitutional Perspective: The Dark Side of Functional Differentiation (Hart Publishing 2011).
18 See Xenofon Contiades (ed), Constitutions in the Global Financial Crisis: A Comparative Analysis (Ashgate 2013) with globally collected examples and pointing at four different ‘paths of constitutional reaction’ (adjustment, submission, breakdown, stamina).
19 If courts conduct a proportionality test at all, which very much depends on the institutional background and on the approach to every single social right at stake; see also Jeff King, ‘Social Rights and Welfare Reform in Times of Economic Crisis’ in Matteucci and Halliday (n 15) 214, 221–28.
20 See eg ECJ of 13 June 2017, Case C-258/14 Florescu [2017] ECLI:EU:C:2017:448, paras 56 and 57: ‘ . . it should be noted that the purpose of [the restrictive law] is to rationalise public spending in an exceptional context of global financial and economic crisis . . As regards the suitability and necessity of the national legislation at issue in the main proceedings, it must be borne in mind that, given the particular economic context, Member States have broad discretion when adopting economic decisions . . .’.
21 In a certain way, this comes close to the comparison of ‘prototypical cases’, see Ran Hirschl, Comparative Matters, The Renaissance of Comparative Constitutional Law (OUP 2016) 258 with reference to Moshe Cohen-Eliya and Iddo Prodat, Proportionality and Constitutional Culture (CUP 2013). The difference here is that we do not aim at learning about different cultures but about the impact of external events on legal systems, and that we therefore do not suggest comparing jurisdictions but different periods of application within one jurisdiction.
II. The constitution of the welfare state under pressure
1. Social policy reforms and the financial crisis
It is not easy to know whether a specific social policy measure and the resulting legislative act is, or is not, to be considered as having been caused by the financial crisis. As a starting point, all social protection laws enacted within the period of analysis (see III.1) merit attention. Of course, the parallel in time between debt crisis and social law reforms is, generally speaking, not sufficient to ascertain causality between the two events. For methodologically sound empirical research, one would have to check the materials of every legal act and search for clear hints shedding light on the relevant motives. If draft bills or protocols of parliamentary debates contain a reference to the specific budgetary situation, it is safe to conclude that the resulting legislative act was a reaction to the debt crisis. In many cases, such causal relations may be established. In others, it will be difficult to find proper proof. But there is at least some plausibility that the economic situation played an important role for all reforms effected in times of the debt crisis, because this crisis has been perceived in most, if not all, Member States of the EU as a major challenge, with a strong impact on fiscal policies, in particular, and on all decisions of this time with relevance for public expenditure more generally. Nevertheless, it is important to verify this general assumption that emphasises the role of the debt crisis as compared to the social policies that had been pursued before. To a certain degree, these policies had been in line with the general tendencies of developed countries to react to globalisation, changing labour markets, and demographic processes. One could argue that such tendencies must be regarded as an expression of neo-liberalism and that they were clearly meant to find a balance between social protection, individual freedoms, and markets. The Lisbon Strategy of the EU went in this direction, although the changes that were brought about were not as radical as they appeared to be.22 In any case, one could observe common European trends in specific areas of social policy without being able to link these directly to one political actor on the European scene.23
22 See for the so-called investive welfare state Nathalie Morel, Bruno Palier, and Joakim Palme, ‘Social Investment: A Paradigm in Search of a New Economic Model and Political Mobilisation’ in Nathalie Morel, Bruno Palier, and Joakim Palme (eds), Towards a Social Investment Welfare State? Ideas, Policies and Challenges (Policy Press 2012).
23 See for pension policies Ulrich Becker, ‘Alterssicherung im internationalen Vergleich’ in Ulrich Becker and others (eds), Alterssicherung in Deutschland, Festschrift für Franz Ruland (Nomos 2007) 575 and for the difficulties in assessing the impact of the so-called Open Method of Coordination, Ulrich Becker, ‘Die offene Methode der Koordinierung im Bereich Alterssicherung – eine Zwischenbilanz aus Sicht der Wissenschaft’ (2011) 92 DRV Schriften 19.
It is true that austerity measures risked moving these tendencies into an ultimately unbalanced situation.24 Still, in several cases they were also the result of previous processes of reform, which at least produces mixed motives for cutbacks in social rights. In this respect, one can distinguish between different situations: (1) reforms had already been on their way but were extended, either concerning the material scope or the enhancement of the measures; (2) reforms had passed the process of decision-making but had not yet been implemented, and the debt crisis led to an accelerated implementation process;25 (3) reforms had not been based on economic reasons but had been aimed at supporting political goals other than reducing budgetary deficits; they were just on the agenda in times of crisis, or the crisis might even have played a certain role in partly justifying reforms.26 The last alternative reveals that often different policy motives collude. In these cases, it is hard to say which one had more weight than others, but we can still rely on the assumption mentioned above that consolidation measures during the time of crisis were, at least to a certain extent, also crisis-driven.
2. Constitutional protection of social rights
Reforming social protection law, and changing social rights based on this law, is foremost a task of the legislator and thus of parliaments. Their actions are, as is every legislative activity, framed by legal provisions. Those provisions form part of the constitution of a political community if we understand by this term, in a material sense, all legal norms aiming at establishing this community, enabling its functioning, and restricting public powers. In this context, it is advisable to briefly explain what is meant by social rights in terms of substance, dimensions, and normative level (see II.2.a). Even if, in a formal sense, constitutional law may be regarded as law following from a particular and fundamental sovereign decision and, in most cases, also following a specific procedure, there is an interplay between laws from different sources and different legal spheres that has the potential to restrict legislative powers (see II.2.b). Human rights, also called fundamental or basic rights, are a powerful part of this as they limit the discretion of a legislator in order
24 See Hemerijck (n 8) 373–98. Very sceptical with a view to increasing inequality Jon Erik Dølvik and Andrew Martin, ‘From Crisis to Crisis’ in Hemerijck (n 8) 325, 384 and with a view to the role of social rights also Colm O’Cinneide, ‘Austerity and the Faded Dream of a “Social Europe” ’ in Nolan (n 15) 169, 184–201.
25 An example being old-age pension reforms in Italy and Spain, see Ulrich Becker, ‘Neuere Entwicklung der Alterssicherungssysteme in Europa – Reformen, Resilienz und rechtliche Aufarbeitung’ (2014) 3 DRV 159, 169–70.
26 An interesting case is the re-privatisation of old-age security schemes in some Central and Eastern European countries where ideological and economic motives concur; see for the reforms in Hungary András Simonovits, ‘Pension Re-Reform in Hungary’ (2012) 26 ZIAS 258; more generally Elaine Fultz and Kenichi Hirose, ‘Second-Pillar Pensions in Central and Eastern Europe: Payment Constraints and Exit Options’ (2019) 72(2) ISSR 3, 4–10.
to protect individual positions and to maintain individual freedoms. At every level of their formal construction, and notwithstanding the formal character of the respective legal basis (treaty of public international law, EU law, constitutional law in a formal sense), individual or human rights may protect social law positions via three different mechanisms (see II.2.c). Social rights as a subcategory of these human rights can serve as normative guidelines for legislators in various fields of social policy and impose certain obligations on legislative actions (see II.2.d). Yet, one should not concentrate on human rights only if the role of constitutional law is at stake. In times of crises, governments often feel the pressure to take immediate action. They may be tempted to react quickly to a given factual situation in order to avoid the risk of aggravation. This can, as a consequence, lead to the violation of constitutional provisions that aim to protect the principle of democracy and the rule of law by setting certain procedural requirements for governmental action (see II.2.e).
a) Starting points: different meanings of social rights
The term ‘social rights’ is, in different respects, open to interpretation, and a lack of clarity about what is understood by this term can easily lead to misunderstandings and sometimes misleading discussions. In order to avoid those, it is helpful to draw a distinction between dimensions and substance on the one hand, and between different levels of legislative actions on the other. And one should also, at least as a starting point, try to choose clear distinctive lines in order to emphasise the relevant categorial aspects.
As far as substance is concerned, social rights cover labour relations (or industrial relations, both individual and collective) and social protection, understood as a broad and recently widespread term embracing both social security and social assistance and thus a broad field of social benefits (see II.2.c) including different forms of governmental interventions (eg non-discrimination, regulation of private markets). As far as the dimension is concerned, social rights can be understood as placing an obligation on governments, and therefore as having a positive dimension.27 How concrete this obligation actually is, and whether subjective, enforceable individual rights can be derived from the respective provisions, is a crucial question.28
This question also leads to the ‘legal placement’ of social rights, in terms of their rank in a hierarchy of legal sources. As part of constitutional law, EU law, and public international law, social rights aim at directing legislation (see II.2.d); as part of ‘ordinary’ national laws (acts of parliaments, statutory instruments), social rights
27 ‘Positive’ in the sense of the necessity of action, and as opposed to a ‘negative dimension’.
28 See for a rough categorisation of the ‘strengths’ of economic and social rights Courtney Jung, Ran Hirschl, and Evan Rosevear, ‘Economic and Social Rights in National Constitutions’ (2014) 62 American Journal of Comparative Law 1043, 1049–53.
aim at implementing social policy (see II.1). It is not by chance that in practice the latter type of right is much more important when it comes to the actual granting of social benefits, and also that the character of social rights at the level of material constitutional law remains, generally speaking, doubtful. The reason for this is that any provision of social benefits not only requires state intervention but, in most cases, needs a certain public infrastructure. Regardless of the specific type of social benefits scheme,29 it has to be based on up-to-date, specific legal relations between an administrative body—whether this be an undertaking or governmental body—and the individual beneficiary. In a nutshell, and despite a long-standing discussion on the nature and function of social human rights,30 this is why many of those rights dealing with social security, social assistance, and other forms of social protection have a rather programmatic character31 and can only be properly understood by taking their institutional and political context into account.32
b) Interplay between different legal levels
aa) It is the responsibility and within the competence of states to adopt and to implement social protection systems. Against this background, the most important source of law that may be applied in order to steer and control legal activities in this field is national constitutional law. How this works in practice depends very much on two circumstances. First, on a doctrinal approach, namely on the question of what legal effect follows from social rights according to national case law.33 As already said, this might be a programmatic one, and in many cases courts do not derive rights to specific social benefits from constitutional social rights but they may be prepared to acknowledge some enforceable individual position and to protect such a position via the principle of proportionality or the assumption that a minimum core must always be left untouched. Second, and more importantly, there are very different legal cultures as far as the role of constitutional control is concerned. In Scandinavian countries, it does not play a role at all. When, for example, the Swedish old-age security system underwent a far-reaching structural reform,34
29 See for typologies Neville Harris, ‘The Shape and Characteristics of Social Security Today’ in Neville Harris (ed), Social Security Law in Context (OUP 2000) 156 et seq; Ulrich Becker, ‘Das Sozialrecht; Systematisierung, Verortung und Institutionalisierung’ in Franz Ruland, Ulrich Becker, and Peter Axer (eds), Sozialrechtshandbuch (6th edn, Nomos 2018) 51, 57–60.
30 See Christian Tomuschat, Human Rights. Between Idealism and Realism (3rd edn, OUP 2014) 136–48; in our context also Ignacio Saiz, ‘Rights in Recession? Challenges for Economic and Social Rights Enforcement in Times of Crisis’ (2209) Journal of Human Rights Practice 1, 277.
31 And also why ‘soft law’ plays a considerable, or at least supplementary, role in implementation, see Alain Supiot, ‘The Position of Social Security in the System of International Labor Standards’ (2006) 2 Comp. Lab. L. & Pol’y. J. 27, 113, 116–18.
32 See also Hirschl (n 21) 185. Of course, one may also argue that rights depend in a much more general way on a certain embeddedness in societal structures, see Christopher Thornhill, ‘The Future of the State’ in Kjaer, Teubner, and Febbrajo (n 17) 357, 381–84.
33 See eg Portugal Quirin Vergho, Soziale Sicherheit in Portugal und ihre verfassungsrechtlichen Grundlagen (Nomos 2010) 251–300, 314–19.
34 See Peter A Köhler, ‘Die Reform der Alterssicherung in Schweden’ in Becker and others (n 23) 691.
this had been prepared through the meticulous work of a standing commission of many years, but it had never been challenged before a court. To the contrary, nearly all welfare reforms taking place in Germany are subject to a constitutional law debate. One can assume that those different approaches on the relation between political decisions and constitutional law are strongly influenced by the national institutional background, even if the direction of this influence and all questions of causality remain to be investigated. Clearly, it makes a difference whether persons struck by a cutback in social rights have access to courts, how easily this can be realised, and whether courts are prepared to question the constitutionality of a reform and, if necessary, to correct the legislator.
bb) Because of its supremacy, EU law prevails over national law. Generally speaking, it is applied by national authorities and courts as forming part of one jurisdiction, and the reservations made by some national constitutional courts35 do not play a role in the context of welfare reforms.
On the other hand, the EU has few powers to regulate social protection,36 and there is no secondary legislation that would have a noticeable impact in this field. That does not mean that the European integration process did not have a so-called ‘social dimension’. To the contrary, the EU has been establishing its own social policy since the 1970s.37 Yet, while the relevant measures mostly come in the form of legally non-binding documents, we can observe a certain change in attitude towards substantial aspects of social protection. Whereas the most important EU social security legislation, the coordination regulations,38 do not set up a common scheme of social security but allow different national social security schemes to exist,39 there are two sources in particular that try to set up a normative framework for social protection. The first is the EU Charter of Fundamental Rights (EUCFR).40 Within its chapter on ‘Solidarity’, it addresses social protection of families (Article 33), social security, and social assistance (Article 34) as well as healthcare (Article 35). It is clear that the respective provisions do not contain enforceable social rights for EU citizens, given the scope of application of the EUCFR41 and the differentiation between ‘rights’ and
35 See the case law of the Bundesverfassungsgericht (German Federal Constitutional Court), Decision of 30 June 2009 (Lisbon), 123 BVerfGE 267, paras 238; Decision of 6 July 2010 (Honeywell), 126 BVerfGE 268, paras 54; Decision of 14 January 2014 (OMT), 134 BVerfGE 366, paras 27.
36 See art 153(2) TFEU.
37 See Becker (n 13) 19, 21–31; for the development of social policy over the early decades of the Union and its open prospects Mark Kleinmann, A European Welfare State? (Palgrave 2002).
38 Council Regulation (EC) No 3 on social security for migrant workers [1958] OJ 561/58; Council Regulation (EC) 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community [1971] OJ L149/2; Regulation (EC) 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems [2004] OJ L166/1.
39 Standing case law, see eg ECJ of 7 December 2017, Case C-189/16 Zaniewicz-Dybeck v Pensionsmyndigheten [2017] ECLI:EU:C:2017:946, para 38.
40 [2012] OJ C326/02.
41 Art 51(1) sent 1 EUCFR; see ECJ of 6 March 2014, Case C-206/13 Regione Siragusa v Regione Sicilia [2014] ECLI:EU:C:2014:126, paras 24 and 25.
