Right to unemployment benefits
Time limit for application
RULING Nº 49/2010
3 of February of 2010
Even though the Court did not question the constitutionality of either the requirement that it must be the interested party who makes the application for the grant of an unemployment benefit, or the imposition of a time limit for doing so, the understanding that any delay in complying with this peremptory deadline precludes the overall right to any benefit payment is unconstitutional, because it is disproportionate.
The Public Prosecutors’ Office was legally obliged to bring this appeal – a mandatory requirement whenever a norm contained in a legislative act is not applied on the grounds of its unconstitutionality.
The norm in question in the present appeal was included in legislation (Executive Law no. 220/2006 of 3 November 2006) that laid down the legal framework governing reparation in the event that workers who are employed by someone else become unemployed. It provided for the allocation of unemployment benefit payments to the beneficiaries in such cases. The issue was whether this norm was constitutional, if interpreted such that failure to apply to the social security service for the allocation of the unemployment benefit within the time limit of 90 consecutive days counting from the date on which the unemployment began, must lead to the irremediable preclusion of the overall right to all the benefit payments the unemployed person would otherwise be entitled to during the whole of the involuntary unemployment period. The decision against which the Public Prosecutors’ Office appealed held that the norm was indeed unconstitutional, because it was in breach of the principle of proportionality.
The Constitutional Court repeated the arguments it had advanced in relation to an identical situation that had arisen under the legislation which had applied before the publication of Executive Law 220/2006: in constitutional terms, the unemployment situation is not just one of those “situations in which there is a lack of or reduction in means of subsistence, in which the “social security system” is responsible for protecting “citizens”. Specifically on the subject of a worker who “involuntarily finds himself in a situation of unemployment”, the applicable article of the Constitution (which is part of a chapter entitled Economic rights and duties) expressly and directly grants such workers the right to “material assistance”. This right is thus a fundamental right pertaining to workers, and one that possesses a broad scope of application (its coverage includes Public Administration workers and self-employed workers, among others), although fully implementing it depends on the financial and material resources that are available to the State. The undeniably fundamental nature of a worker’s right to material assistance when he/she finds him/herself in a situation of involuntary unemployment implies – albeit obviously without questioning the legislator’s freedom to shape the way in which the right is implemented in material terms – that the regulation of the applicable administrative procedure must be subject to the principle of proportionality, in the sense that the procedural requirements must be necessary and appropriate and the consequences of failing to fulfil them must be reasonable.
While there can be no doubt that a “delay” in making the request will always mean that the individual payments that would have been due up until the date when the application is actually submitted must be precluded or lapse, it is altogether unreasonable to punish the beneficiary worker by imposing the definitive and irreversible loss of the right to the unemployment benefit as a whole, for the entire (future) period over which he/she would be entitled to it, due to any delay in the initial making of the request.
The unemployment benefit possesses a stopgap function of making up for the salaried remuneration that the worker finds him/herself deprived of; and the situation of unemployment is by nature a lasting situation and not a momentary one. In substantial terms, to deny access to that right entirely therefore means denying, without sufficient grounds for doing so, the constitutionally guaranteed workers’ right to material assistance in a situation of involuntary unemployment – even if the unacceptable part of the denial only applies to the period after the point at which the beneficiary has exercised that right in the correct way.
The Ruling is accompanied by a concurring opinion, whose author expresses doubts as to whether the interpretation of the norm which (the interpretation) was held to be unconstitutional does in fact breach the principle of proportionality. She says that the principle is only applicable to cases in which the legislator was bound with regard to the choice of certain ‘purposes’. This is what happens with restrictions on constitutional rights, guarantees and freedoms, which can only be imposed in the light of the need to implement other assets or values to which the Constitution affords its protection; but it is not the case with measures that implement social rights, when the legislator is free to define whether and how the State makes benefit payments.
All social rights have negative dimensions, which place a duty (in addition to the duty to protect and promote) on the legislator not to fail to respect them. Where these dimensions are concerned, the duty not to fail to respect can be identified with the duty not to impose excessive restrictions – in the concurring author’s opinion, the principle of proportionality is entirely applicable in such cases. She voices doubts, however, as to whether the same can be said of the right to the unemployment benefit and to the determination of a time limit for requesting it.
See Ruling no. 474/2002, in which the Constitutional Court held that there was a failure to comply with the Constitution, due to the omission of the legislative measures needed to make the right to material assistance pertaining to persons who involuntarily find themselves in an unemployment situation executable, with regard to Public Administration workers (this is one of the only two cases in which the Court has ever found that an unconstitutionality by omission existed); and see Ruling no. 275/2007, in which the Constitutional Court found that the norm contained in earlier legislation which corresponded to the one addressed in Ruling no. 49/10 was also unconstitutional.