Right to fair reparation for work-related accidents – Fund for Work-related Accidents (FAT)
Work-related accident insurance
Right to compensation
Compensation and punitive damages
RULING No. 161/11
24 of March of 2011
The right to fair reparation for work-related accidents, which is enshrined in the Constitution, essentially entails the creation of a private-law compensation regime centred on the relationship between the victim, the employer and the insurer. Its essential core does not require a direct state intervention in the form of the provision of material benefits designed to overcome a situation in which it is objectively impossible for the credit due to the victim to be satisfied, particularly in the case of insufficient economic resources on the part of the employer or the insurer. Inasmuch as the creation of the Fund for Work-related Accidents (FAT) is not a legislative measure that is directly imposed by the relevant constitutional precept, it is not covered by the regime applicable to fundamental rights, freedoms and guarantees.
It is not unconstitutional to limit the coverage of the guarantee under which FAT makes payments that are due as a result of work-related accidents to the losses that are subject to compensation under the terms of an objective liability, thereby excluding compensatory amounts that are established in accordance with the degree of the employer’s blame as an entity which was directly responsible for the occurrence of the accident in question. This absence of any unconstitutionality is due to the fact that this limitation is justified in the light of the principle of equality and does not affect the essential core of the principle of fair reparation.
The origin of this appeal for a review of the constitutionality of the norm in question was an incidental question involving the updating of pensions due as the result of work-related accidents. The action was heard by the Setúbal Labour Court, which denied the application of a norm under which the liability of the Fund for Work-related Accidents (FAT), which was correctly involved in the case, did not extend to payment of the additional amount of the pension that was due because there had been culpable behaviour by the employer. The Court a quo was of the view that the norm not only suffered from organic unconstitutionality because it was in breach of the Assembly of the Republic’s partially exclusive legislative competence, but also from material unconstitutionality because it violated the principle of equality by subjecting he right to fair reparation to the employer’s economic capacity.
The Public Prosecutors’ Office lodged a mandatory appeal against this decision.
The Constitutional Court acknowledged that the constitutionally enshrined right to fair reparation for work-related accidents can, in certain circumstances, possess a content that is analogous to that of a fundamental right, freedom or guarantee. However, the Court said that it is not correct to say that the primary content of this right includes a guaranteeing intervention by FAT. The Fund is a body that is designed to avoid situations in which the recipients of pensions due as a result of work-related accidents do not receive those pensions. As such, it is responsible for paying the amounts that are due as a result of accidents at work whenever, for reasons linked to an economic incapacity that has been objectively characterised in judicial proceedings for bankruptcy or equivalent, or a corporate recovery process, or because the entity with the responsibility to pay is absent, has disappeared or is impossible to identify, those amounts cannot be paid by that entity.
The norm whose application was denied by the court a quo is derived from another norm that post-dated the legislative act which created the Fund. Its purpose is to exclude FAT’s liability for payment of the increased part of a pension derived from the fact that the employer acted culpably.
The Constitutional Court rejected the argument that the norm is unconstitutional. It said that even though the constitutionally recognised right to fair reparation for work-related accidents can, under certain circumstances, possess a content that is analogous to that of a fundamental right, freedom or guarantee, its essential nature is that of a positive right which allows the legislator to adopt legislative policies targeted at protecting workers who are victims of such accidents. The precepts regarding social rights possess a minimum content, which can be determined by means of an interpretation with reference to the Constitution. However, we must distinguish between on the one hand the rights to benefits with regard to whose application the necessary and sufficient elements and criteria are provided by constitutional norms, and whose execution can be considered to be required by the Constitution, and on the other hand those rights whose implementation is dependent on a greater or lesser degree of shaping by the ordinary legislator, and thus on an autonomous legislative intervention that defines their content. Only the former can be considered to be of the type whose implementation is required by the Constitution. Now, particularly where it concerns the Assembly of the Republic’s exclusive or partially exclusive legislative competence, the regime governing fundamental rights freedoms and guarantees is applicable to the rights whose practical implementation is imposed at the constitutional level, but not to those which, to the extent that they go beyond a constitutionally required minimum, only become effective and clearly defined at the ordinary legislative level.
The Constitutional Court then turned to the allegation that the norm suffers from material unconstitutionality, because it is in breach of the worker’s right to fair reparation for work-related accidents and in violation of the principle of equality, to the extent that it subjects the victim’s right to the greater or lesser economic capacity of the employer that was responsible for the accident, and thus mandates a treatment in which there is a differentiation between workers that is not based on reasonable criteria. The Court recalled that the principle of equality leads on to a prohibition of arbitrariness, and that it is equally inadmissible for there to be either a differentiated treatment which does not possess a justification that would be reasonable from the point of view of constitutionally relevant objective criteria, or the same treatment for situations which are manifestly not equal. The fact that the legislator is legally and materially bound by the principle of equality does not deprive it of its freedom to shape legislation. Within the limits imposed by the Constitution, it pertains to the ordinary legislator to define or qualify the de facto situations or life relations which are to serve as the reference elements that will be treated in the same or different ways. This means that for a legislative measure to be characterised as unconstitutional because it injures the principle of equality, there must be sufficient material grounds for this conclusion – i.e. the norm must be unreasonable and in disharmony with the legal system.
The Court recalled that the liability which emerges from work-related accidents is an objective civil liability, and one which is associated with a principle of entrepreneurial risk, or even of the socialisation of risk. In general terms, this form of civil liability is only set aside when there is blame on the part of the employer, in which case the rules applicable to aquilian liability apply, and no limits are placed on the resulting compensation. The increased liability which exists when there is culpability on the part of the employer, and which implies reparation for the whole of the material and non-material damages incurred by the victim, is based on a subjective civil liability that can be attributed to the employer.
The Court held that the criterion adopted by the legislator is not inappropriate or lacking in reasonable material grounds when it limits the extent of the guarantee by FAT that the payments will be made to the damages that are subject to compensation under the standard regime – i.e. under the objective civil liability regime. The case before the Court entailed a merely subsidiary liability. On the legislative policy level, this means that it was permissible to exclude from that guarantee any amounts that are determined on the basis of the employer’s culpability as an entity that was directly responsible for the occurrence of the accident in question.
The Ruling was unanimous.
Rulings nos. 750/95 (19-12-1995), 370/07 (26-06-2007).