Portuguese Report on Social Rights

Transcription

1 Portuguese Report on Social Rights Jorge Pereira da Silva Tito Rendas This paper can be downloaded without charge from: phone (+351)

2 PORTUGUESE REPORT ON SOCIAL RIGHTS 1 INTERNATIONAL CONGRESS OF COMPARATIVE LAW VIENNA 2014 PORTUGUESE REPORT ON SOCIAL RIGHTS Jorge Pereira da Silva Universidade Católica Portuguesa - Law School (Lisbon) Tito Rendas Universidade Católica Portuguesa - Law School (Lisbon)

3 2 PORTUGUESE REPORT ON SOCIAL RIGHTS I - Social rights in national legal scholarship 1. Portuguese legal scholarship does not call into question, in general terms, the need to provide for an effective protection of social rights. On the contrary, since the current Constitution came into force, in 1976, social rights and problems relating to their legal effect and practice have been taken very seriously by legal scholars. As a matter of fact, the first part of the Portuguese Constitution relating to fundamental rights is divided into two major headings: a) One relating to rights, freedoms and guarantees including personal rights, political rights and workers' rights (Articles 25 to 57); b) And another one relating to economic, social and cultural rights including an extensive and detailed catalogue of social rights, which goes far beyond what is common in Western constitutional texts (Articles 58 to 79). In this second set of constitutional provisions, each article assumes a dualistic structure. In the first paragraph, the universal ownership of a particular social right is stated in very clear terms. Namely, according to the Constitution, "everyone has the right to": a) Work (Article 58); b) Goods and services of good quality (Article 60); c) Social security (Article 63); d) Health (Article 64); e) A house of adequate size (Article 65); f) A healthy and balanced environment (Article 66); g) Education and culture (Article 73); h) Equal opportunities in education (Article 74): i) Cultural enjoyment and creation (Article 78); j) Sports (Article 79). In each one of these constitutional provisions, the remaining paragraphs contain a wide range of tasks incumbent upon the State, in order to conduct or implement the social right in question. Many of these tasks, binding as they are, however, are relatively imprecise, granting the legislative power ample freedom as to the time and the concrete course of action to comply therewith. Nonetheless, other constitutional imperatives are very clear and precise. For example, the State must:

4 PORTUGUESE REPORT ON SOCIAL RIGHTS 3 a) Establish and update the national minimum wage (Article 59, paragraph 2, a)); b) Establish, at the national level, the legal limit on working hours (Article 59, paragraph 2, b)); c) Provide, as laid down by law, special guarantees for salaries (Article 59, paragraph 3); d) Prohibit all forms of hidden, indirect or fraudulent advertising (Article 60, paragraph 2) ; e) Consider the entire duration of employment for the purpose of calculating pensions (Article 63, paragraph 4); f) Create a national, universal and tendentiously free healthcare system (Article 64, paragraph 2, a)); g) Create parks and nature reserves (Article 66, paragraph 2, c)); h) Prohibit the work of school-age children (Article 69, paragraph 3); i) Ensure universal, free and compulsory primary education (Article 74, paragraph 2, a)); j) Grant to all citizens, according to their capabilities, the access to higher levels of education (Article 74, paragraph 2, d)); l) Create a network of public schools covering the needs of the entire population (Article 75, paragraph 1). In these cases, therefore, the legislator s prerogative is substantially reduced and it is easy to determine whether or not her constitutional obligations are fulfilled. As will be further discussed, judicial review of acts or omissions of public authorities itself is made significantly easier when these provisions are at issue. Besides the referred social rights, whose assignment is made according to the principle of universality, the Constitution also grants social rights to certain limited categories of people, who have a need for special protection from the State and society due to a particular (transitory or structural) weakness. This is the case of: a) Workers (Article 59); b) Parents (Article 68, paragraph 1); c) Pregnant women (Article 68, paragraph 3); d) Children (Article 69); e) Young people (Article 70); f) The disabled (Article 71); g) The elderly (Article 72). Finally, it is important to emphasize that some social rights are enshrined simultaneously as rights and duties, that is, not only as active legal positions on the basis of which their holders may, either mediately or

5 4 PORTUGUESE REPORT ON SOCIAL RIGHTS immediately, make claims against the State, but also as legal positions involving responsibilities incumbent upon the holder as well as upon third parties. This is the case of: a) The right to the protection of health and the duty to defend and promote it (Article 64); b) The right to the environment and the duty to defend it (Article 66); c) The rights of parents to special protection and their responsibility to provide support and education to their children (Article 68). 2. The great importance granted by the Constitution to social rights Article 9 establishes that the achievement of these is a "fundamental task of the State" is largely explained by historical factors. In this matter, scholarship has been faithful to the spirit of the constitutional text. It should not be forgotten that by the time of the 1974 Portuguese revolution, the world was still divided into two political and ideological blocs and that this division had a direct impact on fundamental rights. Like the world, fundamental rights were divided into two distinct blocs: the United Nations Covenants (1966) on civil and political rights on one side, and on economic, social and cultural rights on the other. Even within the Council of Europe, fundamental rights were divided into two declarations of rights of a very different nature: the European Convention of Human Rights (1950) and the European Social Charter (1961). The political forces in the Portuguese Constituent Assembly, in , thus reflected that division of the globe into two blocs. The constitutional text they drafted represents a compromise between two different (almost opposite) trends: on the one hand, under the inspiration of some Western constitutions (and, in particular, of the German Grundgesetz), the rights of civil and political freedom are listed first; social rights, on the other hand, reflecting the influence of Eastern European constitutions and international texts, come after civil and political rights and are endowed with a broad formulation. Amidst this compromise a very difficult one to achieve at the time, the freedom of economic enterprise (Article 61) and the right to property (Article 62) were listed among economic rights, rather than where they would more obviously belong among civil or freedom rights. Their social function was stressed and, ultimately, they were devaluated in legal terms. Moreover, social rights as a whole were presented, in the constitutional text itself, as instruments of a possible transition from the prevailing political and economic system towards socialism. Side by side with the progressive achievement of social rights, the nationalization of large private companies was also part of this transition project involving the main sectors of production and economic activity.

6 PORTUGUESE REPORT ON SOCIAL RIGHTS 5 The first constitutional revisions, in 1982 and 1989, despite having maintained the bipartite division of fundamental rights, were very clarifying from the political and legal point of view. They made clear that: a) The primacy of the rights, freedoms and guarantees should not jeopardise the need to attain economic, social and cultural rights; b) The attainment of these rights should be understood as part of the construction of a Western-type Social State and not as a tool towards more radical political and economic transformation; c) The freedom of economic initiative and the right to property, in spite of maintaining their formal classification as economic rights, hold, in substantive terms, a similar position to the one held by civil rights (Article 17) and, as such, are to be legally treated as part of a market economy. Hence, the consolidation of Portuguese democracy and the making of the welfare state through the gradual achievement of social rights happened in parallel and complementarily. Social rights added to political democracy what the Constitution itself called "economic, social and cultural democracy" (Article 2). The progressive achievement of social rights has thus played a decisive role in legitimizing the democratic regime coming out of the 1976 Constitution. In fact, despite the great difficulties felt by Portugal in developing satisfactory social programs taking into account that the first signs of the crisis that would later undermine the welfare state in the following decades could already be noticed in Europe at that time, Portuguese citizens have associated the "d" for "democracy" to the "d" for (economic and social) "development" since early years. Especially since the democratic stabilization fostered by the constitutional revision of 1982 and the clarification of the economic model in 1989, a broad political consensus on social rights has emerged. What the few dissenting voices both in the world of politics and in the legal world did was to criticize the excessive length and rigidity of those constitutional provisions. Ever since, the so-called second generation rights have no longer been seen as threats to the first generation rights or, in other words, as the "Trojan horse" of socialism and began to be understood: a) not only as rights the realisation of which is an essential condition for the full accomplishment of the rights of freedom; b) but also as autonomous constitutional rights; c) and, furthermore, as rights that, regardless of their specific nature, are subject to a constitutional regime that should lead to their progressive realisation.

7 6 PORTUGUESE REPORT ON SOCIAL RIGHTS After the dissipation of some initial misunderstandings, the compromise between the rights, freedoms and guarantees and the economic, social and cultural rights is now regarded as one of the strongest traits of the Portuguese Constitution. These rights are not understood as being in a competitive relationship, but in a relationship of mutual complementarity. At the substantive level, the rights to freedom are essentially perceived as negative rights and, because their content is determined at the constitutional level, independent of legislative intervention. Social rights, on the other hand, are seen as positive rights to State benefits, the realisation of which is largely dependent on the ordinary legislator, since their content is not discernable only from constitutional provisions. 3. As a consequence of its different substantive nature, regarding the constitutional regime for allocation and protection of rights, the traditional scholarly view identifies a set of rules common to all fundamental rights: the principle of universality (Article 12), the principle of equality (Article 13), the principles of proportionality and protection of legitimate expectations (Article 2), the principle of effective judicial protection (Article 20), among others. Scholars subscribing to this view further identify two specific regimes: a) One applicable to the rights, freedoms and guarantees, composed of the following rules: - The legislative competence lies with the Parliament (Article 165, 1, b)); - Direct applicability, without interpositio legislatoris (Article 18, paragraph 1); - Immediately binding upon public entities and private individuals (Article 18, paragraph 1); - Tight rules regarding legal restrictions (Article 18, paragraphs 2 and 3); - Intangibility of the essential content (Article 18, paragraph 3); - Tight rules regarding the suspension of its exercise, in state of emergency or siege (Article 19); - Civil liability of the State (Article 22); b) And one applicable to economic, social and cultural rights, composed of the following rules: - Normative realisation dependent upon interpositio legislatoris; - The so-called "reserve of the financially possible";

8 PORTUGUESE REPORT ON SOCIAL RIGHTS 7 - The "principle of no return" or "principle of prohibition of social regression"; - Unconstitutionality by omission of the legislative measures necessary for their implementation (Article 283). Nowadays, this rigid division is largely outdated. Not only can a clear trend toward the extension of a common system of fundamental rights be discerned with the consequent sharing of rules and principles relating to freedom rights, but some aspects of the system of social rights have also been thrown into crisis, especially the stronger versions of the so-called "principle of prohibition of social regression". The idea that the rights, freedoms and guarantees benefited from an exclusive regime, which granted them enhanced protection partly founded on the text of Article 17 and that social rights were doomed to have a weakened protection, is now being progressively abandoned. 4. On the contrary, the latest trend is to recognize the existence of an essential unity among all fundamental rights. The Charter of Fundamental Rights of the European Union deals with both freedom rights (both civil and political) and social rights. The reason for this doctrinal mainstream lies, of course, in the indivisibility of human dignity itself, which lies at the core of all fundamental rights catalogues. It is crucial to recognize that the full exercise of most civil and political rights requires a set of material conditions that only the satisfaction of social rights can provide. A life that allows each and every man to appear before other men as "sovereign and author of himself" (Mirandola) or as "an end in itself " (Kant) requires not only the satisfaction of basic needs for food, shelter, clothing and health, but also minimum access to education, information and culture. The right to life goes beyond the right to biological life; it requires the assurance of the conditions necessary to live a dignified human life, in which the person can develop as such, in all its various dimensions (physical, intellectual, spiritual, etc.). Think about rights to political participation: it is beyond doubt that their realisation depends on citizens being economically and socially integrated and having access to the information necessary to make informed and responsible choices. This unifying trend is legally possible by considering the internal structural complexity of fundamental rights, when taken as a whole. In other words, all fundamental rights have positive and negative, objective and subjective, organizational and institutional dimensions, requiring the State and, above all, the legislator to protect, improve and promote them in various fields of social life. In this sense, all rights are (also) positive, requiring the State to grant regulatory and material benefits, and

9 8 PORTUGUESE REPORT ON SOCIAL RIGHTS consequently depend, on a greater or lesser extent, on the financial and material resources available. Rights such as the right to life or the right to physical integrity require a police organization designed to ensure their effective protection and the persecution of those who encroach on them. In the same vein, the State has ensured the protection of private property since the liberal period, which obviously implies the mobilization of large human and material resources. Moreover, the very content of private property, as well as that of other first generation rights like the right to marry and to start a family or the freedom of association are largely dependent on the choices made by the ordinary legislator, particularly at the level of civil law. The right of access to courts of law presupposes the organization of the judicial system and the passing of procedural laws, to what of course adds the necessary human, material and financial support. And in the case of people without sufficient economic resources, having access to justice also requires direct financial support from the State itself. Even the exercise of the right to vote implies the passing of electoral laws and the organization of the electoral process, thus requiring the expenditure of public resources. In contrast, a practical good as health which is at the centre of a specific social right has a clear negative side, which results in a duty of the State (or of the citizens, in general) of not undermining the health of individuals. As with other social rights like the right to housing, the right to social security or the right to education when the holder has access to the goods in question (by himself or with the support of the State), he or she will be in a position to demand State omission, that is, to require the State not to deprive him (arbitrarily) from that fundamental right. Therefore, one cannot compare fundamental rights understood as a whole in order to reach the conclusion that some are positive and some are negative, or that some are enshrined in precise terms in the Constitution while others are not. Instead, fundamental rights must be compared in a smaller scale: comparing one segment, faculty or dimension to another. It thus follows that even though every fundamental right is unique, they all require from the State in any of its dimensions of defence, protection, organization or promotion more or less legislative activity, more or less positive benefits, more or less financial resources, and more or less omissive attitudes of respect. 5. Alongside the issue of the justiciability of social rights which will be analyzed below in Chapter VI, the problem of the relationship between the "reserve of the financially possible" and the "prohibition of social regression" is particularly controversial.

10 PORTUGUESE REPORT ON SOCIAL RIGHTS 9 It should be noted that the idea that social rights are subject to a "reserve of what is financially possible" in itself has never been controversial. Scholars, regardless of their ideological stance, have always accepted the existence and the inevitability of this reserve. Occasionally, small differences can be detected regarding the more or less strong effect produced by such reserve on social rights and on their fundamental nature. After all, as some social rights require from the State a huge financial effort especially the right to education, the right to health and the right to social security, it has always been unanimous among legal experts that the satisfaction of these rights is dependent upon the available financial resources and therefore on the taxes and social contributions that the State could collect. This reserve is particularly clear insofar as some of the most important social rights are constitutionally defined as being "free" (basic education Article 74, paragraph 2, a)), "progressively free" (higher education Article 74, paragraph 2, e)) or "tendentiously free" (health Article 64, paragraph 2, a)). Other social rights despite being supported, in general, on a contributory basis imply financial benefits targeted at beneficiaries who exceed that same contributory basis (social security Article 63, paragraph 3). Closely dependent on the strength of public finances, social rights are therefore very dependent on the economy and its fluctuations as well especially when they assume a structural nature. What is controversial, rather, is the relationship between this reserve and the so-called "prohibition of social regression". As a matter of fact, this prohibition particularly when understood in its strong version, that is, as a prohibition of reducing not only the fulfilment of the constitutional provisions for the achievement of social rights, but also the benefit level itself turns out to be absolutely incompatible with the aforementioned idea. The prohibition of regression can only be explained in the light of a historicist conception of social evolution and, in particular, of a Marxist historicism, which believed in the irreversibility of the achievements of workers and their rights against the bourgeois capitalism. Out of this peculiar ideological framework, to prohibit any setback in terms of social rights would simultaneously and drastically reduce the margins of freedom of the democratic legislator and limit his ability to fight the economic crisis, the market instability, the disruption of the international order, etc. To legally prohibit social regression would be equivalent to looking at the future as a flat line, deprived of any major difficulties and to naively believe that political parties would never fall into the temptation of giving their citizens more than the allowed available resources. Understandably, some authors have eventually reduced the scope of this principle, stating that it only forbids regressions that are unjustified, arbitrary, disproportionate, in breach of citizens legitimate expectations, or when the essential content of the rights in question is curtailed. In other

11 10 PORTUGUESE REPORT ON SOCIAL RIGHTS words, they withdrew from the principle of prohibition of regression any dogmatic autonomy and reappointed its scope to other constitutional principles, the validity of which is undisputed in the field of social rights. The Constitutional Court itself, after having made a finding of unconstitutionality based upon the idea of prohibition of regression in 1984 (Judgment No. 39/84, available at has reduced the scope of this principle in several subsequent decisions and has come to accept its dismantlement (Judgment No 148/ 94, Judgment No. 590/2004, Judgment No. 3/2010). In the current context of deep economic and financial crisis that Portugal is going through, legislative measures that operate a clear reduction on the subjective scope and amount of various social benefits wage cuts in the public sector; cuts in old age security pensions and survival pensions; cuts in unemployment benefits, cuts in sickness benefits do not represent any encroachment upon this principle. The Constitutional Court has been conducting the control of constitutionality of these measures only with reference to the principle of equality, the principle of proportionality and the principle of protection of legitimate expectations. Still, the critics accused the Court of excessive judicial activism. 6. Perhaps the most original contribution of Portuguese scholarship in the field of social rights is the notion of "unconstitutionality by omission" and its review by the courts. An analysis of this contribution requires the consideration of three different aspects: a) The definition of a legal substantive concept of unconstitutional legislative omission; b) The prescription of a mechanism for abstract review, by the Constitutional Court, of this particular form of unconstitutionality (Article 283); c) The defence of a concrete monitoring mechanism, by all courts, of these unconstitutional omissions (Article 204). First of all, an unconstitutional omission should not be equated with simple legislative inertia, for it implies the failure of a real legal duty to legislate imposed by the Constitution. The sources of this duty are manifold and not all of them are within the scope of social rights. In particular, one should consider: a) True orders to legislate, which impose the making of a specific law on certain matters; b) Duties of legislative protection of fundamental rights human dignity, life, physical integrity, protection of privacy, personal data, health, etc. against external aggressions of various kinds

12 PORTUGUESE REPORT ON SOCIAL RIGHTS 11 (e.g., from private third parties, terrorist organizations, foreign states, and forces of nature); c) Duties to pass rules of organization, procedure and process designed to the exercise and effective protection of fundamental rights; d) Duties of regulatory densification for example, in civil law of the content of certain fundamental rights (e.g., property, marriage, freedom of association, freedom of contract); e) Finally, duties to complete non-self-executing constitutional rules, in particular duties to legally shape social rights and to provide for their practical achievement. Once the source of the duty to legislate has been attested, one must check whether the legal system provides for an adjusted procedural mechanism to verify and declare the failure to comply with that duty. Sometimes, it does not. In such cases, it should be noted that there is often no clear separation between action and omission and that the same reality can be seen from both perspectives. Moreover, what is at stake in the breach of the duty to legislate is not a subjective judgment about the legislator s fault or liability, but rather an objective judgment on the legal status quo. As to the second aspect, the Portuguese Constitution actually provides a mechanism for the abstract control of unconstitutionality by omission (Article 283), which can be used when the legislator has failed to fulfil his obligations to implement non-self-executing constitutional provisions, in particular the constitutional provisions about social rights. However, for several reasons, this mechanism has proved inefficient in practice because: a) Only the President of the Republic and the Ombudsman are entitled to ask for the review by the Constitutional Court; b) Therefore, individuals do not have access to this procedural route; c) Once the unconstitutionality by omission has been declared, the Court is merely obliged to communicate its decision to the competent body which means, in fact, to issue an "appealing decision" addressed to the legislator. Even so, it is possible to extract some legal consequences from the decision of the Constitutional Court: the breach of the Constitution is certified and delimited; the persistence of legislative inertia opens the door to the liability of the legislator for (omissive) violation of fundamental rights (Article 22). This mechanism enabled the Constitutional Court to reach an important decision about social rights, finding the unconstitutionality for partial omission of the statutory scheme for unemployment benefits. Unemployment benefits had been created only

13 12 PORTUGUESE REPORT ON SOCIAL RIGHTS for workers in the private sector, since public officials enjoyed absolute stability in their employment relationship. However, because the State had been using the labour contract system to meet its needs of manpower, some categories of civil servants could be fired according to the law. Hence, the legal regime of unemployment benefits was found unconstitutional by omission, since it did not cover unemployed people previously working in the public sector (Judgment No. 474/2002). The third aspect is still rather controversial. Although the Portuguese system of constitutional review has a mixed nature combining abstract review, conducted by the Constitutional Court (Articles 278 and 281), and concrete review, conducted by all courts (Article 204), with appeals against these decisions to the Constitutional Court (Article 280), two different currents of thought can be distinguished: a) One arguing that concrete review concerns only the unconstitutionality by action i.e., of legal rules effectively enacted by the legislator, assuming that the Constitutional Court has exclusive jurisdiction over omissions (Article 283); b) Another arguing that legal rules that can be reviewed by courts may also be the result of partial or even total omissions of the legislator. Think about when the legislator fails to comply with his positive obligations maxime when he does not implement a social right. Such an omission results in an implicit rule that would oblige the administration and force the courts themselves (unless they have the power to review it) to decide on the concrete case in clear breach of the constitutional plan, that is, to deny the applicant access to an asset protected by a social right. Naturally, anyone who follows this second approach strongly reinforces the justiciability of social rights, because the courts may in the case sub judice under the principles that allow them to fill gaps in positive law or to judicially develop the law provide legal protection, however partial, to the appellant s right. For example, without encroaching on the principle of separation of powers, courts can ensure access to an essential or minimum content of social law, or enact a provisional measure until the legislator intervenes. In practice, however, the difference between these two points of view is of relatively little significance. Since there is no strict boundary between action and omission whenever the legislator says A, he is not saying B simultaneously, just like he is not saying A + B" the Constitutional Court (both within its powers of abstract review, and on appeal of decisions in the context of concrete review) has found many provisions unconstitutional "insofar as they do not say something"; or "because they do not establish some guarantee"; or because "they do not

14 PORTUGUESE REPORT ON SOCIAL RIGHTS 13 foresee a certain limit"; or because "they do not apply to a certain category of persons". After all, the Court reviews true and real unconstitutional omissions in the judicial procedures designed to review the unconstitutionality by action. Yet, quite recently, in its controversial decision on the State Budget Law for 2013, the Constitutional Court declared the unconstitutionality of a contribution imposed on sickness and unemployment benefits, but only because a safeguard clause to avoid the beneficiaries of that financial support to fall below the decent survival minimum (already provided by law, in general terms) was not established by the legislator (Judgment No. 187/2013). II The constitutional protection of social rights 7. The social rights established in the Constitution briefly described above are configured as individual rights, that is, as rights of individual ownership and of individual exercise. That does not mean that the many tasks of the State, the fulfilment of which should lead to the achievement of these rights, would share, in their formulation, that same individual reference. The Constitution requires the State i) "to implement policies for full employment" (Article 58, paragraph 2, a)), ii) to create a "social security system unified and decentralized" (Article 63, paragraph 2), iii ) to establish a "national health service" (Article 64, paragraph 2, a)), and iv) to execute a "housing policy and plans for territorial planning" (Article 65, paragraph 2, a)) but, obviously, no individual legal claims result directly from these tasks. However, the point is that, after legislative implementation and practical application of those laws, individual rights enforceable against the administration and the courts would result from the legal building formed by the interweaving of constitutional and legal provisions. In this regard, the only exception can be found in Article 67, where, under the heading "family", it is established that, "as a fundamental element of society, family is entitled to protection by society and the State and to the implementation of all conditions enabling the personal development of its members". The family is mentioned in other provisions, although merely as an element to be considered in the setting of a right that is mainly individual: a) In the context of the rights of workers, the labour organization must "allow the conciliation of work and family" (Article 59, paragraph 1, b)); b) In the context of the right to housing, it is stated that "everyone has the right, for himself and his family, to a dwelling of

15 14 PORTUGUESE REPORT ON SOCIAL RIGHTS adequate size (...) preserving (...) family privacy" (Article 65, paragraph 1); c) Regarding the right of youth to special protection, the State assumes a duty of "collaboration with the families" (Article 70, paragraph 3); d) It is established that the personal income tax must "take into account the needs and household income" (Article 67, paragraph 2, f), and Article 104, paragraph 1). 8. The general principle governing the allocation of social rights is the principle of universality (Article 12) which, in practice, can hardly be dissociated from the principle of equality (Article 13). As noted above, many of the principles enshrining social rights start precisely by saying that "everyone shall have the right to". Nevertheless, despite the ownership of social rights being ruled by the principle of universality, this does not mean that all individuals may claim the corresponding State benefits or that these benefits always have the same content. Universality does not preclude selectivity in the allocation of public benefits, according to the economic situation of each individual and, in particular, according to the possibilities of each individual having access, by him or herself, to many of the fundamental assets in question through the market, without resorting to public services or support systems. In paradigmatic terms, the national health service is said to be "universal, general, and, considering the economic and social conditions of the citizens, shall tend to be free of charge" (Article 64, paragraph 2, a)). And, regarding the right to housing, the Constitution explicitly delineates the difference between the obligations of the State in terms of "economic and social housing" and of "private building" and the "access to owned or rented housing" (Article 64, paragraph 2 b) and c)). Moreover, the principle of universality does not preclude the constitutional text from identifying particular categories of holders of fundamental social rights. These categories of people are generally open and therefore they do not truly contradict the very idea of universality and respond to very specific constitutional concerns. As a matter of fact, certain groups of people have a particular need for State protection, namely through social policies, including: a) Workers, as a result of the legally subordinated relationship they have with their employers (Article 59); b) Consumers, due to asymmetric information and to the economic weight of the major suppliers of goods and services (Article 60); c) Pregnant women, due to their greater vulnerability (Article 68);

16 PORTUGUESE REPORT ON SOCIAL RIGHTS 15 d) Children, youth, the disabled and the elderly, due to their fragile situation (Articles 69 to 72). Regarding some social rights, the Constitution identifies smaller groups, with the purpose of requiring the State to endorse specific actions for the promotion of their rights and to avoid any discrimination against them, most notably: a) The unemployed (Article 59, paragraph 1, e)); b) Victims of accidents at work or occupational diseases (Article 59, paragraph 1, f)); c) Underage workers (Article 59, paragraph 2, c)); d) Migrant workers (Article 59, paragraph 2, e)); e) Student workers (Article 59, paragraph 2, f)); f) Drug Addicts (Article 64, paragraph 3, f )); g) Orphaned or abandoned children (Article 69, paragraph 2); h) Children of emigrants and immigrants, regarding the access to education and culture (Article 74, paragraph 2, i) and j)). 9. Concerning non-nationals, Article 15 of the Constitution under the heading principle of equivalence establishes very clearly that "foreigners and stateless persons residing in Portugal enjoy the same rights and are subject to the same duties as Portuguese citizens". This provision encompasses all social rights. The distinction between nationals and foreigners is relevant only in what regards political rights and the access to certain public positions (Article 15, paragraph 2). Thus, foreigners in Portugal, regardless of whether they are EU citizens, have the same duties (e.g., tax payment and other social contributions) and, if they fulfil the legal requirements, the same rights (e.g., unemployment benefit, free access to basic education, free access to health care, retirement pensions or disability pensions) as Portuguese citizens. A more delicate issue is that of foreigners residing illegally in Portuguese territory. It is evident that an effective immigration policy would advise against granting social rights to illegal immigrants. However, first of all, their illegal situation does not exempt them from taxes and other contributions to social security and of law enforcement in general. Many illegal immigrants are registered in the tax and social security services and meet their obligations in these areas. Moreover, a commitment with human dignity recommends against denying access to health care to someone in need (in case of emergency or serious illness) or denying education to school-age children (who cannot be penalized because of their parents situation). Thus, in general terms, public services in the area of tax, social security, health and education do not control the

17 16 PORTUGUESE REPORT ON SOCIAL RIGHTS lawfulness of residence of their users. This control is essentially done by the police, the immigration authorities and the labour inspection. Finally, the social rights protection of minorities is based on the general principle of equality (Article 13). With respect to workers' rights in particular, Article 59, paragraph 1, mentions the rights of "all" the workers, "without distinction of age, sex, race, nationality, place of origin, religion, political or ideological convictions". 10. The debtor or passive subject of social rights is primarily the State. In the case of most social rights, it is (only) against the State that citizens can make their claims for legal, material and financial assistance in its different areas of action. But the State is also responsible for most of the tasks listed in the Constitution as necessary conditions for the achievement of those rights. The achievement of social rights is, therefore, a task that requires the cooperation between the three State branches of power: a) The legislative power shall build (and permanently update) the legal structure necessary to the implementation of each one of the social rights, closely following the guidelines very accurate ones, in some cases provided by the Constitution; b) The public administration as a whole including the State, the autonomous regions, local authorities, and even some other public institutions or public companies shall be responsible for organizing and making available the material, financial and human resources needed to carry out the services integrating the content of the different social rights; c) It is naturally up to the courts to control the legislative and administrative activity. However, they shall be autonomously bound by social rights as part of their direct linkage to the Constitution and shall contribute with their decisions for the practical achievement of those rights. Thus, on the one hand, courts are expected to correct any deficits of legislative achievement of social rights and, on the other hand, to make use of various legal principles (e.g., equality, proportionality, trust protection) in order to assure the citizens an equitable access to the existing social protection systems. In practice, when it comes to social rights, the citizens main interlocutor is the huge public administration machine, whose decentralized organization should also be reflected on the structures of national social security systems (Article 63, paragraph 2), health (Article 64, paragraph 2), housing (Article 65, paragraph 2, b)) and environmental protection (Article 66, paragraph 2, e)), as well as in their daily operations. That is, considering the complexity of the task in question and the need to

18 PORTUGUESE REPORT ON SOCIAL RIGHTS 17 get close to the citizens, the duty to distribute the various social benefits must be shared by the different (territorial and functional) sections of the administration. 11. In addition to the public authorities in general, it is possible that private persons may present themselves as direct debtors or passive subjects of social rights. It is important to draw attention to the fact that the Portuguese Constitution does not conceptualize fundamental rights, regardless of whether they have a positive or negative nature, as rights exclusively directed against the State. Paragraph 1 of Article 18 states that rights, freedoms and guarantees "bind public and private entities", even though scholars acknowledge that the linkage is more intense in the former than in the latter case. In the second case, the fact that rights, freedoms and guarantees bind private individuals must be balanced with the principle of private autonomy, which is also constitutionally protected (Article 61). Considering the above trend toward a certain rapprochement between the regime of freedom rights and the regime of social rights in the name of human dignity and the consequent indivisibility of fundamental rights, it is understandable that social rights can also legally bind some private individuals, at least regarding their negative dimensions or when their content is well determined by the Constitution. For example, the landlord is nevertheless bound by the housing rights of his tenant, who, in the terms set by ordinary law (Article 65, paragraph 2, c)), cannot be evicted arbitrarily. Consumer rights (Article 60) which are equally dependent on imperative systems of civil law and of material benefits of the administration are also clearly directed against private companies, producers of goods and service providers. This phenomenon is particularly evident in the case of employers in relation to some workers rights (Article 59): a) The right to remuneration according to the quantity, nature and quality of the work (equal pay for equal work (paragraph 1, a)); b) The right to work under socially dignifying conditions (paragraph 1, b)); c) The right to work under conditions of hygiene, health and safety (paragraph 1, c)); d) The right to special labour protection for pregnant women, minors and disabled (paragraph 2, c)); e) The right to fair compensation for damages, in case of accidents at work (paragraph 2, f). It should also be noted that these fundamental rights are granted to the same extent to workers in the private and public sector.

19 18 PORTUGUESE REPORT ON SOCIAL RIGHTS 12. A different question relates to the fact that the Constitution does not make the State the monopolist of social solidarity. Rather, the Constitution repeatedly demands the intervention of society and its institutions in the task of achieving social rights a logic that shows a clear influence of the subsidiary principle. Namely, the Constitution demands the State to involve the following private entities in its public policies: a) Consumer associations (Article 60, paragraph 3); b) Unions (Article 63, paragraph 2); c) Private institutions of social solidarity (Article 63, paragraph 5); d) Medical companies and private medicine institutions (Article 64, paragraph 3, d)); e) Housing cooperatives (Article 65, paragraph 2, d); f) Associations of families (Article 67, paragraph 2, g)); g) Associations and foundations with cultural purposes (Article 70, paragraph 3 and 73, paragraph 3); h) Associations for the protection of cultural heritage (Article 73, paragraph 3); i) Private schools and education cooperatives (Article 75, paragraph 2); j) Associations of teachers, parents and students (Article 77, paragraph 2); l) Sports associations (Article 79, paragraph 2). Thus, the principle of participatory democracy (Article 2) extends its effects to the achievement of economic, social and cultural rights. Several conclusions can be drawn therefrom: a) The social policies of the State should be outlined in constant dialogue with civil society s private institutions and, ultimately, with the citizens themselves; b) The management of public systems of social security, health and education must allow some space for the participation of users and other social agents involved particularly in education, "teachers and students have the right to participate in school management" (Article 77, paragraph 1); c) The public social network and the private and cooperative social networks maxime, in education and health should complement and articulate themselves smoothly, in order to ensure better access to and better quality of these services to the citizens; d) The State may (and, in case of insufficient means, should) delegate some of its tasks for the achievement of social rights to

20 PORTUGUESE REPORT ON SOCIAL RIGHTS 19 private institutions for-profit or nonprofit and assume a merely supportive and regulatory role. 13. As stated above, the text of the Constitution clearly distinguishes rights, freedoms and guarantees, on the one hand, and economic, social and cultural rights on the other. The first can be found in Title II of Part I and the second in Title III of the Constitution. However, this distinction is not an inflexible one for a number of reasons: a) There are social rights alongside with rights of freedom, such as the right to judicial protection regardless of economic means (Article 20, paragraph 1); b) There are, among social rights, rights of similar nature to the rights, freedoms and guarantees (Article 17), such as: - Freedom of private economic enterprise (Article 61); - The right to property (Article 62); - Some of the rights of workers (Article 59 - Judgment No. 793/2013); - Some consumer rights (Article 60, paragraph 1); - The right to have all the working time taken into account for purposes of calculating the retirement pension (Article 63, paragraph 4); - Finally, the negative content of various social rights, such as rights to social security, health, housing, environment or education; c) There are fundamental rights that form a meaningful unit as the workers rights (Articles 53 to 57 and Articles 58 and 59), the right to education (Articles 43 and 73 to 77), or the right to culture (Articles 42 and 78) but whose content is divided into several articles, some alongside freedom rights and others alongside social rights; d) The structural criteria that are most commonly used to distinguish the two categories of fundamental rights negative rights versus positive rights, constitutional determinacy versus indeterminacy of its contents, independence versus dependence upon the legislator merely indicate a trend and, mainly, can only be strictly applied to each one of the multiple faculties and dimensions that form a fundamental right; e) As a result, some of the rules and principles that traditionally shape the regime of rights, freedoms and guarantees also apply to social rights e.g., the system of legal restrictions and a few rules and principles that were part of the constitutional

21 20 PORTUGUESE REPORT ON SOCIAL RIGHTS system of the latter have been abandoned or lost their dogmatic autonomy e.g., the prohibition of social regression. It is not unusual to find the enunciation of different categories of the current social rights in legal scholarship or in case law. Even the material or thematic distinction between economic rights, social rights and cultural rights has been the object of analysis. However, there are some other differences that should be pointed out: a) The aforementioned difference between rights the assignment of which is made in universal terms (education, health and social security) and those attributed to certain, more or less restricted, categories of people (workers, consumers, parents, children and youth, disabled, elderly, etc.). b) The difference between non-reflex rights (simply rights) and the rights-duties (the right and duty to protect public health, the right and duty to protect the environment, the rights and duties of parents regarding the education of their children); c) The contrast between the rights implying financial benefits (as a rule, the claims that unfold the right to social security) and the rights of access to material benefits provided by public services (health and education); d) The rights that are gratuitously allocated (basic education Article 74, paragraph 2, a)) or progressively gratuitously allocated (higher education Article 74, paragraph 2, e)), the rights that are tendentiously free (health Article 64, paragraph 2, a)), and finally the rights the benefits of which require previous financial contributions (social security, including unemployment benefits Article 59, paragraph 1, e) and Article 63, paragraphs 3 and 4); e) The social rights aiming specifically at the correction of more persistent discriminations, creating a true "equality of opportunities" where "legal equality" alone has not been enough (especially in education, culture and science Article 73, paragraph 1), and all other rights that do not have that particular function, although they also contribute to building a society of greater justice and solidarity (Article 1). 14. In Portugal, the fundamental question is not whether the Constitution adequately protects social rights, but rather the opposite one, that is, whether the Constitution burdens the State with too many legal obligations and material tasks some of them defined with a high degree of precision and determinacy, consequently reducing the conformational freedom of the democratic legislator and rendering a reform of the

22 PORTUGUESE REPORT ON SOCIAL RIGHTS 21 Portuguese welfare-state which could, in the future, ensure its sustainability impossible. Portugal is going through a very difficult situation, with the sovereign debt crisis putting pressure on the State in addition to internal factors, such as the rising of unemployment, the rising cost of health care and serious problems concerning the financing of the social security system (e.g., the inversion of the demographic pyramid, with a decreasing working force and an increasing number and longevity of dependent subjects). And, in this context, the excessive rigidity of the Constitutional text on social rights makes it very difficult for the parliament and the government to restrain public expenditure and achieve financial equilibrium. Before the crisis, government expenditure to accomplish the three most relevant social rights education, health and social security already consumed about three fourths of State resources (based on a functional classification of expenditures, which of course excludes the debt service). General Social Public Time Services National Education Health Security Pub. Ad. Defence Security Housing, collective Culture Agriculture Industry, Transports, energy communic. services ,9 946, , ,3 616, , , , ,1 700, , , , , , , , , , , , , , , ,8 430, , , , , , ,1 557,7 267,9 598,1 228, , , , , , , ,3 595,1 324,2 610,5 183, , , , , , , ,3 653,9 317,7 663,4 204,5 991, , , , , , ,1 803,6 378,1 686,8 233, , , , , , , ,0 883,4 429,0 701,3 241,9 952, , , , , , ,0 860,9 449,4 622,5 228,9 979, , , , , , ,4 871,4 447,4 682,4 238, , , , , , , ,1 945,7 483,2 724,2 236,2 995, , , , , , ,1 891,0 430,2 645,0 107,0 993, , , , , , ,7 660,6 488,3 874,5 9, , , , , , , ,3 568,4 436,2 576,2 2, , , , , , , ,8 537,6 417,8 565,9 0, , , , , , , ,4 477,5 397,8 518,5 0,0 941, , , , , , ,7 521,7 409,3 526,1 466,2 437, , , , , , ,6 447,4 397,6 486,1 121,9 527, , , , , , ,8 315,8 381,9 468,0 72,8 573,6 Table 1: State expenditure budgetary implementation by functions (in millions of Euros). Source: PORDATA

23 22 PORTUGUESE REPORT ON SOCIAL RIGHTS When considering these figures on the allocation of public expenditure, one must not forget the tendency towards its exponential growth a tendency originating in the 80s, as the following figure illustrates: Table 2: State expenditure budgetary implementation by functions (in millions of Euros). Source: PORDATA This data especially the three highest lines, corresponding to social security, health and education raises the question of whether the 1976 constitutional legislators were excessively ambitious, taking into consideration the characteristics of the Portuguese economy and the financial resources it can generate (and has generated over the past decades). In this context, some reform proposals have been advanced in order to smooth the constitutional regime of social rights, by reducing the role of the State in accordance with the principle of subsidiarity and thus granting to the private and social sector a greater role in the achievement of social rights. The goal of these proposals is therefore to reduce the weight of the State as a direct provider, assigning it a regulatory function and the role of ultimate guarantor of social justice. Such proposals for constitutional revision, however, have not obtained the political consensus necessary for their approval. 15. Although the data above shows that public expenditure is generally very high, it does not render any clear conclusion about the level of effectiveness of social rights. The Portuguese welfare State has always been struggling with a serious shortage of financial, material and human resources available for social policies a problem that is aggravated by the heavy and