Constitutional Judge, Social Rights and Public Debt Crisis
| Author | Ana Maria Guerra Martins |
| DOI | 10.1177/1023263X1502200503 |
| Published date | 01 October 2015 |
| Date | 01 October 2015 |
| Subject Matter | Article |
678 22 MJ 5 (2015)
CONSTITUTIONAL JUDGE, SOCIAL
RIGHTS AND PUBLIC DEBT CRISIS
e Portuguese Constitutional Case Law
A M G M*
ABSTRACT
e purpose of this article is to de monstrate the consistence and coherence of the ca se law of
the Portuguese Constitutional C ourt concerning social rights during the public debt cr isis.
e Constitutiona l Court accepts that the legislature has a wid e margin of appreciation to
reverse the level of protection of social r ights. is inclu des the right to a fair wage, the right
to a pension, and the right to socia l bene ts. However, the retrocession of soc ial rights shall
pursue a signi cant public interest and respect the principles of equality, proportionality
and legal certainty compr ised in the rule of law. When the Constitutional Court cons iders
that these principles are violated, it does not hesitate to declare a norm uncon stitutional,
even if, according to the government, the norm or nor ms in question are essential in order
to ght the economic and nancial crisis. e so-called ‘ca se law of the crisis’ has been
strongly criticized. is study will mainly analyse and c ontest the arguments of the critics.
Keywords: case law; constitutional principles; Portuguese Constitutional Court; social
rights; nancial and public debt crisis
§1. INTRODUCTORY REMARKS
e nancia l crisis in general and the public debt crisis in particular (from 2010 to 2014)
led the Portuguese leg islator to adopt a package of austerity measures.
* Ana Maria Guer ra Marti ns is Professor at the L aw School of Lisbon Universit y, Justice at the Portug uese
Constitutional Court, researcher at Lisbon Centre for Research in Public Law (CIDP) and former
General-Inspe ctorate of Justice. She can b e reached at aguerrama rtins@gma il.com.
Constitutiona l Judge, Social Rig hts and Public Debt Crisis
22 MJ 5 (2015) 679
At rst, those measures were restricted to scal issues, but as long as the nancial and
public debt crisis increased and mainly a er the request for external assistance and the
signature of the Financia l Assistance Programme (FAP) for Portugal1 in May 2011,2 the
measures were spread fur ther to several other areas. For the publ ic sector, these included
cuts in sta , wages and other bene ts, as well as cuts in pensions for the public and
private sector, the introduction of ‘ exibilit y’ in the labour market a nd the reduction
of unemployment bene ts for the private sector. Notwithsta nding, one has to point out
that, as a rule , these cuts did not touch upon the lower wage levels, pensions and bene ts.
Par t of th ese me asur es were integ rated in th e Stat e Budge t Laws (SBL) of 2 011,3 2012,4
20135 and 2014,6 all of which were challenged before the Portuguese Constitutional
Court. Other measures were formally independent from State Budget Laws, but strict ly
connected to them, and a t hird group of measures was completely autonomous.
e purpose of this article is to analyse the Portuguese Const itutional Court’s so-
called ‘case law of the cr isis’, in order to demonstrate that it is consistent and coherent.
Section 2 star ts with a brief overview of the jur isprudence.7 Section 3 summariz es the
reactions of the scholarship to t his case law and seeks to challenge the crit icism. Finally,
Section 4 draws some conclusions.
§2. A BRIEF OVERVIEW OF THE PORTUGUESE
CONSTITUTIONAL COURT’S CASE LAW
DURINGTHEPUBLIC DEBT CRISIS
Before moving on to the case law of the Constitutional Cour t, a few words on the
Portuguese system of const itutionality and lega lity review, which is conceived as a
multi-shaped system, are necessary. Under the terms of Article204 of the Constitution
1 is prog ramme comprises a set of lega l instruments. On the one h and, the Portuguese Gove rnment
and the Internat ional Monetary Fund (IMF) s igned a Technical Memorandum of Underst anding and
a Memorandum of Economic a nd Financial Polic ies, which set out the ter ms and conditions governi ng
the provision of na ncial assist ance to Portugal by t he IMF. On the other ha nd, the Portugu ese
Government and th e European Union signed a Memora ndum of Understanding on Spe ci c Economic
Policy Conditionality. ese Memora nda require the Portugue se State to adopt the measures they s et
out, as one of the condit ions for the phased ful llment of the nancing contra cts entered into force by
the same par ties.
2 e FAP for Portugal a nd all the docu ments related to are avai lable on the website of Ba nco de Portugal,
https://www.bportugal.pt.
3 Law No. 55-A/2010 of 31December 2010 (Lei do Orçamen to de Estado para 2011).
4 Law No. 64-B/2011 of 30December 2 011 (Lei do Orçamento de Estado pa ra 2012).
5 Law No. 66-B/2012 of 31December 2012 (Lei do O rçamento do Estado para 2 013).
6 Law No. 83-C/2013 of 31December (Orçamento do Estado para 2014), modi ed by Law No. 13/2014 of
14March 2014.
7 Summaries i n English of the ru lings quoted in thi s article are avai lable at the website of the Port uguese
Constitutional Court, www.tribunalconstitucional.pt.
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