Social Security Law – Social Insertion Income (RSI)
Fundamental right to live in a country’s territory;
Effective ties to the portuguese community;
Minimum period of legal residence;
Freedom of movement;
Right to emigrate;
Referral for a preliminary ruling.
RULING No. 141/15
25 of February of 2015
The Constitutional Court declared two norms contained in a Law that revoked the Minimum Guaranteed Income (RMG) and created the Social Insertion Income (RSI) unconstitutional with generally binding force on the grounds that they were in violation of the principle of equality. The first included a provision requiring Portuguese citizens to legally reside in Portugal for at least one year before they were entitled to the RSI, and it was this part of the norm that led to the declaration of its unconstitutionality. The second further required the members of the household of any applicant for the RSI to have legally resided in this country before the RSI could be granted.
The Court said that Portuguese citizens possess a fundamental right to live in the territory that forms the physical and geographic basis for the Portuguese community, and it is thus impossible for a Portuguese person to reside in Portugal illegally. When the concept of ‘legal residence’ in Portuguese territory is applied to Portuguese citizens, it can only set out a right they possess by nature. The argument that the need to pursue a legislative policy designed to make the social security system sustainable would justify differentiating between situations for the purpose of attributing the RSI, in such a way as to only distribute its benefits among persons with an effective link to the community in Portugal, was not valid. The initial principle derived from the Constitution in this respect is that every Portuguese citizen has an effective link to the Portuguese community simply and precisely because he or she is a Portuguese citizen.
Leaving Portuguese territory and thus choosing another state’s territory as the geographic and social space in which to live does not result in diminished citizenship status for any Portuguese person. The right to travel and settle anywhere in Portugal and to leave Portuguese territory and then return to it is guaranteed by the Constitution. When a person emigrates or simply leaves Portuguese territory, his/her effective state of belonging to the Portuguese community remains intact.
This ex post facto review case was brought before the Constitutional Court by the Ombudsman. It addressed norms that together required both Portuguese citizens and the members of their household to legally reside in Portuguese territory for at least a year before they could apply for and receive the Social Insertion Income (RSI).
The Ombudsman questioned the constitutionality of requiring Portuguese citizens to have lived in Portugal for a minimum period of time before they could apply for this benefit. He argued that excluding certain Portuguese citizens from the right to the RSI was contrary to the principle of universality, was in breach of the principle of equality because it illegitimately discriminated against resident Portuguese citizens, and denied the right to a minimally dignified standard of living.
In such cases the author of the challenged norm(s) is entitled to send the Court its comments on the challenge. Under this prerogative the Prime Minister argued that in the Government’s view the norms were not unconstitutional, because the requirement to have resided in Portuguese territory for a minimum period of time was justified by the nature of the benefit and was a reasonable condition for ensuring the existence of a certain prior link to the country; and moreover that under European Union Law no distinction can be made in relation to any EU citizen with the right of residence – all must be treated equally throughout the Union, regardless of whether they are from the host country or another Member State.
The question of constitutionality posed here was whether the legislator could formulate the legal regime governing the RSI in such a way as to impose the requisite of having legally resided in Portuguese territory for a minimum period of time before being entitled to this social benefit.
The RSI is a benefit that is included in the solidarity subsystem, which forms one part of the range of social security measures included in the overall system for providing citizens with social welfare protection. The Law setting out the Bases of the Social Security System makes the award of solidarity subsystem benefits conditional on residence in Portuguese territory.
When deciding who should be awarded the RSI, the legislator employed a unitary concept of “legal residence in Portugal”, which was applied to three groups of people: (i) Portuguese citizens; (ii) nationals of other European Union Member States (and of states that belong to the European Economic Area or with which the EU has an agreement providing for the free movement of natural persons); (iii) nationals of other states.
Inasmuch as the Constitution does not allow Portuguese citizens to be expelled from Portuguese territory and does give them the right to freely travel or settle anywhere in that territory, when the concept of legal residence is applied to any Portuguese person living in Portugal it tends to be confused with the mere identification for legal purposes of his/her domicile. The Court said that this must also apply to Portuguese emigrants returning to their country. Where citizens who are nationals of an EU (or EEA) Member State are concerned, the Treaty on the Functioning of the European Union (TFEU) says that any person who holds the nationality of a Member State is also a citizen of the European Union, and that the latter citizenship is additional to national citizenship and does not replace it.
Union citizens enjoy the right to move and remain freely within the territory of the various Member States, but this right is not unconditional and situations can therefore arise in which an EU citizen who is not also a Portuguese citizen resides in Portugal illegally.
The situation of persons who are neither Portuguese nor citizens of another EU Member State is very different. In their case the fact that the legislator has adopted a unitary concept of legal residence means that residing in Portugal is no longer sufficient reason for access to the RSI benefit.
In his defence of the norms, the Prime Minister argued that European Union Law means that EU citizens with the right of residence are treated equally in every Member State, regardless of their country of origin, and that when it imposed minimum periods of presence in Portuguese territory in order to receive ongoing social benefits, the legislator was seeking to avoid paying such benefits to persons who simply entered Portugal and would otherwise have been entitled to any form of support intended for members of the community for that reason alone.
The Constitutional Court agreed that if that requisite were derived from European Union Law, it would be binding on the Portuguese legislative authorities under both Union Law itself (principle of the primacy of EU Law) and Portuguese Constitutional Law. However, if this were not the case then the legislative decision to exclude Portuguese persons who had been “legally resident” in Portuguese territory for less than a year from the Social Insertion Income would constitute a free choice by the ordinary legislator, and thus one whose conformity with the Constitution the Court would need to consider.
The Court recalled that European Union Law does not always impose the uniform treatment of national citizens and citizens of other EU Member States.
The fundamental principle of equal treatment for these two groups of citizens is subject to limitations and derogations established by EU Law itself, including with regard to aspects of the freedom of movement and residence. The principle must thus be acknowledged to be a relative one.
All “social assistance” benefits are also excluded from this equal treatment requirement, and the fact that the RSI is non-contributory means that it is covered by this exclusion.
EU Law also enshrines a principle that the social security regime of host Member States cannot be unreasonably overloaded. In its case law the Court of Justice of the European Union (CJEU) has been accepting conditions which Member States have been placing on the principle of equal treatment with regard to social benefits of a strictly ‘assistentialist’ nature. Union Law does not oblige the Member States to treat their own nationals and those of other Member States equally.
The Court noted that the entity which issued the challenged norms had effectively accepted an “obligation” – to treat other European citizens in the same way as their Portuguese counterparts and vice versa – that was not imposed on Portugal by EU Law.
The Court said that the question of constitutionality posed here was whether the legislator could formulate the legal regime governing the RSI in such a way as to impose the requisite that Portuguese citizens must have legally resided in Portuguese territory for a minimum period of time before being entitled to this social benefit. The legislator’s view was that within a framework in which the state is being forced to redistribute scarce resources, it was necessary to ensure that a benefit like the RSI would only be granted to people with effective ties to the Portuguese community, whether they are Portuguese or from other countries.
However, the Court considered that inasmuch as the terms ‘nationality’ and citizenship’ signify the bond that links an individual to a given state, it was hard to understand how the ordinary legislator could subject Portuguese citizens to ulterior requisites intended to prove or disprove the existence of effective bonds uniting them with the community in Portugal. The Constitution bases itself on the principle that being Portuguese is a personal status which adequately fulfils the condition of proof of the existence of that effective bond.
The fact that a Portuguese person lives abroad can imply that Portuguese law only grants him/her rights that are not incompatible with his/her absence from the country. However, when it required Portuguese citizens to demonstrate that they had been “legally residing” in Portugal for at least a year, the ordinary legislator instituted a regime governing access to the RSI that was more burdensome for one specific group of Portuguese citizens than for others. The question was thus whether the legislator was entitled to create differences in a legal regime whose only grounds (for the treatment in pejus of some such citizens) were factual circumstances that represented the exercise of constitutionally protected individual freedoms.
The Constitutional Court held that the legislator was not so entitled, and therefore declared both norms unconstitutional.
The Ruling was the object of three concurring (two concurring with the decision, but not the grounds for it; and one whose author concurred with both the decision and the grounds, but would have preferred to refer the question to the CJEU for a preliminary ruling) and two dissenting opinions. In all the opinions, both concurring and dissenting, the main issue was whether in this particular case the question of constitutionality before the court should have been preceded by the possible question of the legislative solution’s compatibility with European Union Law. The views of the five Justices varied, ranging from the opinion that the latter question was irrelevant (because the decision to extend requirements imposed on nationals of other Member States to Portuguese citizens was not an issue on the level of the constitutional-law validity of the norm as applicable to such citizens) to a preference for its reference to the CJEU for a preliminary ruling.
CJEU: Judgement of 11 November 2014 in Case C-333/13, Dano, not yet published, para. 78; Judgement of 23 March 2006 in Case C-408/03, Commission/Belgium, paras. 37 and 41; Judgement of 19 September 2013 in Case C-140/12, Brey, not yet published, para. 55; Judgement of 21 December 2011 in Joined Cases C-424/10 and C-425/10, Ziolkowski and Szeja, Reports I-14035, para. 40; Judgement of 18 November 2008 in Case C-158/07, Förster, Reports I-08507, paras. 49-60; Judgement of 17 September 2002 in Case C-413/99, Baumbast and R, Reports I-07091, para. 90; Judgement of 19 October 2004 in Case C-200/02, Zhu and Chen, Reports I-9925, para. 32; Judgement of 15 March 2005 in Case C-209/03, Bidar, Reports I-02119, paras. 56-57 and 59-61.
Constitutional Court of Portugal Rulings nos. 232/03 (13-05-2003); 412/02 (10-10-2002); and 191/88 (20-09-1988).