Attachment of the minimum wage
Right to a proper living
RULING Nº 257/10
29 of June of 2010
By giving the judge the possibility of setting the amount that can be attached, in a case-by-case assessment in which he/she weighs up and considers the appropriateness of the interests of both the executor and the executed party, in compliance with the requirements imposed by the Constitution, and also the possibility of granting a total exemption from attachment in relation to assets that would otherwise in principle be subject thereto, for reasons concerning the nature of the debt that gave rise to the request to attach and the needs of the executed party and his/her household, without in the process imposing an absolute inability to attach the amount of the national minimum wage on the judge, the Code of Civil Procedure sufficiently safeguards the superiority of the principle of human dignity over the right of the creditor.
This Ruling was handed down in relation to an appeal that the Public Prosecutors’ Office lodged against a decision in which a court refused to apply the Code of Civil Procedure under which the only occasion on which a person’s pay cannot be attached is when the amount of the latter is equal to that of the national minimum wage and the person in question proves that he/she has no other income. The Public Prosecutors’ Office was legally obliged to bring this appeal, because the court in question refused to apply a norm contained in a legislative act, on the grounds that that norm is unconstitutional.
The question before the Court was that of respect for the right to a proper living – a right that is not expressly enshrined in the Constitution of the Portuguese Republic (CRP), but has been rendered operable in constitutional jurisprudence on the basis of principles that are so enshrined. There is a great deal of jurisprudence on this subject, and it has unanimously recognised the principle, but has varied with regard to the exact amount that ought to be deemed the threshold below which attachment is not permitted. The Constitutional Court has been divided as to whether that threshold should be the minimum wage, or the amount of the social benefit that is awarded in the form of a minimum guaranteed income or a “social insertion income”.
In the present case, what was at stake was the viability of attaching part of a salary when the amount of that salary was equal to the amount of the national minimum wage. The court a quo refused to apply the norm that was in effect at the time, which (the part that was of interest to the decision in the present case) stated that two thirds of the pay or salaries earned by an executed party were not available for attachment. The norm allowed the judge to vary the proportion that was attached, from one third to one sixth, and also to possibly exempt income from attachment altogether, depending on the nature of the debt and the needs of the executed party and his/her household. (Under the current version of the norm, the minimum amount that is unavailable for attachment is equal to the amount of the minimum wage, when the executed party has no other income and the credit that gives rise to the attachment is not related to maintenance payments).
The concrete question of unconstitutionality here is whether subjecting the extent to which pay can be attached, when that pay is equal in amount to the national minimum wage, to a case-by-case decision by the judge, is in breach of the principle of human dignity.
The present Ruling corroborates the clear fact that not only does the Constitution expressly recognise the value of human dignity, but that the latter is one of its key core values and both inspires and provides the grounds for the whole legal system. It possesses the nature of an eminent value pertaining to the human person, as a being who is autonomous, free and socially responsible. This is the perspective that has underlain the analyses of the questions that are rooted in the so-called principle of a proper level of subsistence, or in the right to live properly in a way that does not fall below a minimum level. The Court recalled its own jurisprudence, in which on a number of occasions it has affirmed the prevalence of the right to a proper living over the right to recover a credit. In various Rulings the Court has specifically held that the right pertaining to credits should give way to the right to a minimum level of subsistence, thereby precluding the attachment of income received in the form of pensions in cases in which that income does not exceed the minimum wage.
The direction it took in that jurisprudence led the Court to declare, with generally binding force, the unconstitutionality of the part of the Code of Civil Procedure norm that made provision for assets that can be partially attached – it is permitted to attach up to one third of the periodic payments made to an executed party who is not the owner of other assets that would be sufficient to repay the executable debt, when they take the form of social benefits or pensions with an overall value that does not exceed that of the national minimum wage – because it was in breach of the principle of the dignity of the human person contained within the principle of the state based on the rule of law.
What is more, in earlier jurisprudence the Court had also held that where this effect on the possibility of attaching assets is concerned, the situation of a person “who finds him/herself in a debilitating situation such as ill health, unable to work, or lacking in protection, and therefore receives a social benefit”, is equivalent to that of a worker who, if he/she has no other attachable assets and only earns the minimum wage, would be deprived of an amount equal to that of the national minimum wage if it were permissible to attach part of his/her salary.
The case that formed the object of the present Ruling was different, inasmuch as it involved the decision of the court a quo not to apply the norm, regardless of whether the executed party had other attachable assets.
The Constitutional Court has already pointed out (Ruling no. 657/2006) that the grounds for legally treating pensions and other social benefits on the one hand, and pay and wages on the other, differently are their different natures. It is the latter difference that makes it possible to say that when the legislator determines the amount of the minimum wage, it does so not only in the light of considerations concerning the principle of commutative justice and the idea of the dignity of labour, but also of other social and economic reasons, such as workers’ needs, increases in the cost of living, variations in productivity, and the sustainability of the public finances. This in turn means that the minimum wage cannot with absolute certainty be seen as the indispensable guarantee of a minimum level of subsistence that is itself implicit in the principle of the value of human dignity.
The Constitutional Court therefore concluded that the norm before it was not unconstitutional.
Among others, see Rulings nos. 177/02, 96/04 and 657/06.