Fundamental Rights – Economic, social and cultural rights - Right to a pension
Public office, holder;
Public official, salary, calculation
RULING No. 428/2018
20 of September of 2018
The restriction of the monthly lifelong annuities of former political office holders is not in breach of the principle of protection of legitimate expectations, embedded in Article 2 of the Constitution.
I - In an ex post facto review case, the Ombudsman requested for the declaration of unconstitutionality of a number of rules concerning the restriction of the monthly lifelong annuities of former political office holders (set out in paras 7 and 8 - and paras 9 and 10 of Law 52-A /2005, of October 10, in the wording given by Law 64-B/2011, of December 30), arguing that these norms were in breach of the principle of protection of legitimate expectations, embedded in Article 2 of the Constitution. The Constitutional Court did not find these norms to be unconstitutional.
II - The Ombudman’s central argument was that the configuration of the restriction imposed by Article 9 (7) and (8) of Law 52-A/2005 (that is, the subjection of the granting of the monthly lifetime annuity to a condition of resources) was fundamentally identical to the one that had been appreciated under Ruling 3/2016 thus resulting, in similar terms, in an adulteration of the personal element that characterizes this benefit. Contrary to this understanding, the Court found that the comparison between the norm of Article 80 of Law 82-B/2014 (deemed unconstitutional by Ruling 3/2016, of 31st December with erga omnes effects) and the rules under appreciation in the present case revealed, instead, that the latter did not require the calculation of the household income, for the purpose of determining the amount of the monthly lifetime annuity, and focused instead in the individual subject’s income.
III - By requiring that the value of the monthly lifelong annuity be reduced as a direct arithmetical ratio of the monthly/annual income earned by the beneficiary in his/her private activity, whenever such remuneration exceeds the threshold of three times the social support index, the application of Article 9 of Law 52-A/2005 is circumscribed to the income deriving from the private activity of the sole subject beneficiary, not the household’s income. Thus, if the amount to be received by the beneficiary is not dependent on an income other than that earned by the beneficiary, the argument of adulteration of the personal nature of the benefit does not stand and the nature of the benefit, which is a purely personal advantage, is not modified.
IV - Taking into account that the legislator has amended the subsidies’ system several times - to the point of eliminating them in 2005 - , the rules under appreciation can hardly be deemed in violation of the constitutional principle of protection of legitimate expectations. In fact, the successive legal amendments have taken a markedly restrictive direction and have put in place increasingly stringent requirements with regard to the recognition of the right to and payment of lifelong annuities.
V – An identical conclusion would stand - a fortiori – even if in Ruling 3/2016 it had been considered that the principle of protection of legitimate expectations had not been violated. Either because lifelong grants might have been equated to a kind of social support, so that subjection to the condition of resources, in general terms, did not adulterate its nature; either because the rules [then] under appreciation were of a provisional nature; either because a different understanding of the constitutional principle of protection of legitimate expectations might have been applied, according to which the expectations of the beneficiaries in the continuity of the previous regime would be measured in terms not of the empirical implications of legislative behaviour but instead of the constitutional relevance of the legal situations that were consolidated by them; either because it is understood that the “axiological counterpoint” of a possible breach of legitimate expectations was not the reduction of public expenditure, but instead an equitable distribution of the sacrifices of fiscal consolidation; in short, whatever the reason for considering that the rules then assessed were not unconstitutional, the more justified the application of the same reasoning with regard to the rules examined in the present case. In the present case the Court was therefore satisfied with the consideration that even with reference to the understanding expressed in Ruling 3/16, the norms under appreciation were not unconstitutional.