Property Protection as a Limit to Deteriorating Social Security Protection
| Date | 01 March 2013 |
| Published date | 01 March 2013 |
| DOI | 10.1177/138826271301500105 |
| Subject Matter | Article |
European Jour nal of Social Sec urity, Volume 15 (2013), No. 1 55
PROPERTY PROTECTION
AS A LIMIT TO DETERIORATING
SOCIAL SECURITY PROTECTION
A T*
Abstract
is paper explores how the protection of property rights can serve as a limit to
deteriorating social security protection. e protection of property rights under
Article1 of the First Protocol to the European Convention on Human Rights (ECHR),
o en combined with the right to fair trial under Article6(1), has proved a valuable
legal instrument in social security matters when the respective rights seem to be
threatened by potential changes in social security law. is article therefore focuses
on the judicial protection provided when a social security claim is brought to the
European Court of Human Rights (ECtHR) and certain selected national courts. If
the right to social security actually provides a more targeted content with regard to
the status quo of an individual protected under a social security system, then what
are the consequences for law and juridical practice? Jurisprudence and relevant
case law at a European level under the ECH R focuses attention on the obligations of
the contracting Member States in respect of the protection of social security rights,
classi ed under the Article1 1P of the ECHR.
Keywords: European Convention on Human Rights; leg itimate expectations; new
legislative acts; propert y rights; reductive measures; social sec urity rights
1. INTRODUCTION
For individuals, soc ial securit y rights may be an essentia l means for safeguarding
their standards of living. When socia l security statutes change, individua ls’ rights
may be negatively a ected, and thus their s ources of income may be endangered. is
* Master of Laws in E uropean Social Securi ty (Advanc ed), KU Le uven. Add ress: Synt hiki s Lozan is 4,
68100 Alexandroupol is, Greece; tel: +30 6971741837; e-mail: tsetouran nie@gmail.com. is article
is based on Anna Tsetou ra’s Master’s dissertation.
Anna Tsetoura
56 Intersentia
may take the form of a bene t reduct ion, changed entitlement conditions, an altered
level of contributions, or the terminat ion or withdrawal of the right to bene t.
In this ar ticle I address the question of whet her the protection of property ca n
limit the deterioration of bene t rights. e article explores t he conditions in which
restrictions can be imposed on social security rights in the sense that they constitute
property rights, wh ich are conventionally recognised a s fundamental huma n rights.
My research questions are: does the protection of property rights apply in social
security, and can a propert y right serve as a li mit to deteriorating socia l security
protection?
A major source is Article1 of the First Protocol, or Art icle1 1P and the relevant case
law of the European Cour t of Human Rights (ECtHR). Since there are a large number
of cases, I make a select ion on the basis of four criteria. First, I discuss i nterpretative
rulings on the r ight to property; secondly, I will discuss their application to social
security. irdly, I discuss t he types of changes to social securit y legislation that are
used to c ategorise ne gative e ects. Fourthly, the ndings of a v iolation of Article1 1P,
in combination with Ar ticle6(1), are referred to.
Where no violation is found by the Cour t, I discuss the most important elements
of the judgment and deal wit h them in chronological order.
Four signatory members of the Europea n Convention on Human Rig hts (ECHR)
have been selected in order to examine which principles relating to the protection of
property rights a re applied to social secu rity by their national courts. Crucia l to this
is the extent to which these pr inciples comply with t he ECtHR’s case law or stimulate
it by implementing or developing the social secu rity protection provided. Two pairs
of countries are compared − Ger many/Hungary and Lat via/Greece − on the basis of
two criteria: the ex istence of advanced case law in t he relevant eld and of theories
dev elo ped wit hi n th eir nat ion al c ase law ; an d t he pr ote cti on of pro per ty rig hts in s oci al
security aga inst restrictive changes f rom principle to current practice. e comparison
between the second pair of countries is based on a case study t hat takes t he case law
of the ECtHR as a central p oint of reference. A critical approach is attempted by
comparing selected ca se law from ECtHR, Germany, Hungary, Latvia and Greece.
2. THE RIGHT TO PROPERTY AND THE RIGHT TO
SOCIAL SECURITY
e right to property is a basic civ il liberty − a huma n right with a clear-cut content
and close relationship with the soc ial function of the st ate. By comparison, the
right to social secu rity lacks explicit recognition within const itutional orders across
Europe. Taking into account the fac t that social secu rity rights base d on solidarity
arrangements (Pieters 2006) aim to balance t he interests of individuals against the
social func tion of the state, a similarit y of content regarding both of the rights at issue
can be observed.
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