Guaranteed minimum income
Minimum dignified existence
Diminution of the content of a fundamental right
Principle of no backward steps
Principle of non-reversibility
RULING Nº 509/02
19 of December of 2002
The principle of respect for human dignity, which is embodied in Article 1 of the Constitution and which is derived also from the idea of the democratic state based on the rule of law, mentioned in Article 2 and again in Articles 63.1 and 63.3 of the Constitution (which guarantees everyone the right to social security and requires the social security system to protect citizens in all situations in which the means of subsistence or the capacity to work have been lost or impaired), implies recognition of the right to or guarantees of a decent minimum income.
In implementing the right to a decent minimum income, Parliament enjoys the independence freedom, required to choose the appropriate instruments for that purpose. It can shape them according to circumstances and its own political criteria. In the instant case, Parliament might perfectly well take the view that, in relation to young people, the solution adopted should not be to make a grant - and, in particular, not to extend the scope of the social integration income - but to provide other benefits, in cash or in kind, such as study or training grants or apprenticeship wages (at least when they are linked to social integration schemes). The important thing, however, is that Parliament's choice should guarantee the right to a decent minimum income with a minimum of legal efficacy in all cases.
The President of the Republic requested a review of the constitutionality of a provision contained in a parliamentary decree which had been submitted to him for promulgation as a law. This text abolished the guaranteed minimum income provided for under the legislation in force and created the social integration income. The doubts with regard to constitutionality concerned the article determining who was entitled to the social integration income, since, according to the legislation in force, persons aged 18 or over were entitled to the minimum income, whereas the new text guaranteed the right to the social integration income only to persons aged 25 or over.
The point at issue was whether, by replacing the entire guaranteed minimum income scheme with the social integration income scheme, Parliament could generally deprive persons of under 25 years of age of the rights which they had previously enjoyed, without any constitutionally based ground justifying such discrimination in relation to persons aged 25 or over. The distinction according to age established by the provision in question was permissible only if it was not arbitrary, in other words if it was justified on reasonable grounds. Consequently, Parliament was not prohibited from making such a distinction if age could be regarded as an important factor for the adoption of other instruments as an alternative to the social integration income. If so, it would be necessary to put forward certain specific aims which it was hoped to achieve in relation to the 18-25 age group, i.e. a particular concern with regard to their integration in the world of work.
It seemed reasonable to assume that priority should be given to preparing young people for full integration in social life, with the emphasis on vocational training, apprenticeship and creation of the conditions for helping them to find their first job, especially as, under the terms of Article 70.1.b of the Constitution, "young people [...] shall receive special protection so that they may enjoy their economic, social and cultural rights", in particular with respect to "access to a first job, work and social security". That constituted a sufficient constitutional guarantee for the rules applied to them to reflect positive discrimination in this area.
The main question was whether there was a constitutional guarantee of a decent minimum income. A distinction needed to be drawn, however, between recognition of a right not to be deprived of what was regarded as essential to maintain the income required for a decent subsistence minimum, and recognition of a right to ask the state to ensure that minimum, particularly by means of allowances, as suggested by German legal theory and case-law. According to the latter, "the principle of human dignity and the principle of the welfare state give rise to a claim to benefits necessary to ensure subsistence". A guaranteed subsistence minimum included "sufficient welfare benefits", in accordance with the legislation on social welfare, in other words "the state is obliged to guarantee destitute citizens, by means of welfare benefits, the minimum conditions needed to live in a manner consistent with human dignity" (BverfGE, 82, 60 (85)).
According to the case-law of the Portuguese Constitutional Court, once the state had accomplished (fully or partly) the tasks imposed on it by the Constitution with a view to implementation of a social right, constitutional observance of that right was no longer only a positive obligation, but also a negative obligation. The state that was obliged to take action to realise the social right must now refrain from jeopardising the implementation of that right.
Generally, legal writers agreed on the need to strike a balance between the stability already achieved in the area of legislative implementation of social rights and Parliament's freedom of adaptation. To strike this balance it would be necessary to distinguish between the different situations arising. In cases where the Constitution contained a sufficiently precise and concrete order to legislate, Parliament's scope of freedom to reduce the level of protection already achieved was necessarily very limited, because it would only be able to do so to the strict extent that the desired legislative change did not result in unconstitutionality by omission. In other circumstances, however, the rule against reducing the level of protection of social rights could only operate in borderline cases, because if democratic alternation of power was to be regarded as more than a purely theoretical concept, it must entail the reversibility of political and legislative choices, even if they were fundamental choices.
In the instant case, there would no longer be any point in considering the question of a prohibition on reducing the level of protection if the conclusion were to be reached that the right to a decent minimum income was guaranteed by the Constitution and that there were no other instruments which could do so with a minimum of legal efficacy. Otherwise there would, after all, be a case of unconstitutionality through violation of that right, independently of the substance of the legislation previously in force. It was important, therefore, to see exactly what the Constitution stated with regard to the right to a decent minimum income.
The question of whether the substance of the right was reduced to the point of infringing the principle of equality was conceptually independent of the prohibition on reducing the level of protection, because it would be considered mainly in terms of the close links between the different situations regulated by the decree in question, and not in terms of a comparison between the treatment which would be applied to them in future and the treatment applied under the rules still in force.
Parliament enjoyed freedom of adaptation in choosing the appropriate instruments for implementing the right to a decent minimum income. It could decide on the "means and amount of assistance", without prejudice to an "essential minimum" which it would always have to provide. This freedom stemmed from the democratic principle which presupposed the possibility of making choices giving a meaning to pluralism and democratic alternation of power, albeit within the limits laid down by the Constitution. Here, it was necessary to strike a balance between the two pillars on which, according to Article 1 of the Constitution, the Portuguese Republic was founded: on the one hand, human dignity, and on the other, the will of the people expressed through elections.
However, the existing legal instruments, whose specific aim was to promote the integration of young people in working life or professional training, conferred no rights on the destitute and did not give young people proper access to the programmes they contained. The provision under review therefore violated the minimum content of the right to a decent minimum income. This right derived from the principle of respect for human dignity, which, in turn, was recognised by Article 1 of the Constitution and which also derived from the idea of the democratic state based on the rule of law mentioned in Article 2 of the Constitution and again in Articles 63.1 and 63.3 of the Constitution.
In short, the Constitutional Court found the provision to be unconstitutional on the grounds that it violated the right to a decent minimum income inherent in the principle of respect for human dignity.
In theory, the question of a prohibition on reducing the level of protection does not arise solely in relation to social rights. On the contrary, the French Constitutional Council introduced the idea of a "standstill effect" with a decision given in the field of fundamental freedoms (Decision DC 83-165 of 20 January 1984), in which it held that the total repeal of an act in this field was not possible unless it was replaced by another offering comparable guarantees of efficacy. It was only much later (DC 90-287 of 16 January 1991) that the Constitutional Council recognised that this standstill effect might also be applicable in the area of economic and social rights, despite legal writers' reservations about its scope.
The present judgment by the Constitutional Court stresses that, in 1988, the European Parliament declared itself in favour of establishing in all the member states a guaranteed minimum income to help ensure that the poorest citizens are integrated into society (Official Journal of the European Communities, no. C 262 of 10 October 1988, p. 194); refers to point 10 of the Community Charter of the Fundamental Social Rights of Workers; and notes that, in 1992, the European Council approved Recommendation no. 92/441/EEC on common criteria concerning sufficient resources and social assistance in social protection systems.
In addition to the case-law of the German Constitutional Court (Decision of 18 June 1975 - BVerfGE 40, 121 (134)), the present judgment is also based on Portuguese constitutional case-law, which is gradually recognising, albeit indirectly, a guaranteed right to a decent minimum income or a subsistence minimum, either in connection with the adjustment of occupational injury pensions (Judgment no. 232/91), or in connection with the exemption from attachment of certain social allowances (Judgments nos. 349/91, 411/93, 318/99, 62/02 and 177/02).