The Convention on Social Security between the Portuguese Republic and the Republic of Chile
When states are bound by international conventions
Competence to approve treaties
Matters that require agreement by treaty
Reserved legislative competence
General social security regime
Official health services
Social security treaty
RULING Nº 494/99
5 of September of 1999
In the history of the Portuguese Constitution, authority to approve international conventions has been variously apportioned among state institutions. The present Constitution includes an article specifically devoted to the place of international law in relation to the Portuguese legal system. According to Article 8.2, the provisions of international conventions that have been duly ratified or approved shall apply in national law upon their official publication for as long as they remain internationally binding with respect to the Portuguese state.
Thus, change in the procedure for consenting to international instruments has occurred. Power to negotiate and agree international conventions is now vested in the government (Article 197.1.b of the Constitution) rather than the head of state. As the organ conducting the country's general policy (Article 182 of the Constitution), the government pursues external policy and the Council of Ministers is specifically responsible for determining the general lines of government policy and its implementation (Article 200.1.a of the Constitution). As head of state, the President of the Republic represents the Portuguese Republic (Article 120 of the Constitution), and is therefore to be kept informed by the Prime Minister with respect to the conduct of external policy (Article 201.1.c of the Constitution). With regard to international instruments, it rests with the President of the Republic to ratify international treaties (Article 135.b of the Constitution) and sign government rulings and resolutions of the Assembly of the Republic approving international agreements (Article 134.b of the Constitution).
The authority to approve "international conventions" (a term used in the Constitution to mean all international instruments, whether "treaties" or "agreements") has also shifted several times since the text of the original Constitution in 1976. According to the fourth revision (1997), it now rests with the Assembly of the Republic to approve all treaties, especially treaties for the membership of Portugal in international organisations, treaties of friendship, peace or defence, or to rectify boundaries, or concerning military matters, and any international agreements on matters which come under its exclusive authority or which the government sees fit to table for parliamentary consideration (Article 161.i of the Constitution). At the same time, while leaving the government its authority to negotiate and agree international conventions, the constitutional revision removed its authority to approve treaties - it can now only approve international agreements on matters which do not come under the exclusive authority of the parliament or which it does not see fit to table for parliamentary consideration. Furthermore, matters subject to exclusive parliamentary authority must be understood as including either matters unconditionally reserved or those conditionally reserved in terms of its legislative authority.
The question whether treaties are generally and substantively reserved, and hence whether parliament has exclusive authority to approve treaties, cannot be resolved in international law. Since international law can only defer to national law in the matter, the question must necessarily be addressed by the constitutional law of the country concerned - that is, its resolution is dependent on constitutional arrangements for distribution of powers among state institutions or authorities in respect of international conventions. However, Portuguese constitutional provisions on the authority to approve international conventions lay down no substantive criteria for distinguishing between treaties and agreements as separate categories of international undertakings.
The President of the Republic asked the Constitutional Court to make an anticipatory ruling on the constitutionality of all provisions in the Social Security Convention concluded between the Republic of Portugal and the Republic of Chile, which was signed in Lisbon on 25 March 1999 and approved by government decree on the basis of Article 197.1.c of the Constitution, since the government had deemed the convention to be an "international agreement" which was not for the Assembly of the Republic to approve.
The President of the Republic raised issues of procedural and organic unconstitutionality. Specifically, issue was taken regarding the government's authority to approve the convention, given that its content related to a matter under the exclusive authority of the Assembly of the Republic, or at any rate to one which must be settled in the form of a treaty - approval of which, in accordance with Article 161.i of the Constitution, came under the exclusive political and legislative authority of the Assembly of the Republic. At issue, therefore, was the possible substantive reservation of treaties, jurisdiction over which had implications regarding the division of authority between parliament and government for approving international conventions.
The provisions under review were not ruled to be a priori unconstitutional. The Court held that the convention before it was intended purely to extend the scope of Portuguese social security legislation and establish in which cases Chilean legislation would apply, by reference to criteria such as place of residence and place of employment. Hence it aligned the rules governing the two countries' social security schemes by removing legislative gaps and overlaps. It concerned only matters of individuals' international status connected with both signatory states and thus had no real bearing on the "basic principles of the social security system", a matter in which the Assembly of the Republic had exclusive legislative authority (Article 165.1.f of the Constitution).