Should we uprate social benefits for inflation as a matter of Article 1 Protocol 1?
| Author | Kevin Hartmann-Cortés |
| DOI | http://doi.org/10.1177/13882627221147276 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Should we uprate social benefits
for inflation as a matter of
Article 1 Protocol 1?
Kevin Hartmann-Cortés
UCLouvain, Belgium
Abstract
Would a Convention State breach any property rights if it does not adjust its social security ben-
efits for inflation? This article discusses under which circumstances Article 1 Protocol 1 (A1P1) of
the European Convention on Human Rights may require Convention States to uprate the real
value of social benefit entitlements as a consequence of inflation. The methodology followed
was both doctrinal and analytical legal research based on the European Court of Human Rights’
(ECtHR) case law. The text firstly considers why A1P1 may be engaged. The argument holds
that lack of indexation of social benefits has a similar effect to their legislative reduction when
it comes to the peaceful enjoyment of social security benefits. Afterwards it explores what follows
for Convention States. Considering the literature on ‘positive’obligations and A1P1, the article
constructs a plausible case under which A1P1 would require Convention States to uprate (at
least partially) a segment of social benefit entitlements.
Introduction
Would a Convention State breach any property rights if it does not adjust its social security or assistance
benefits for inflation? Inflationhas regained some relevance in the current economic agenda.
1
Its impact on
daily life is significant. In its narrowest definition, inflation is a sustained increase in the prices of goods
and services over a given period.
2
These goods and services include money and monetary claims such as
Corresponding author:
Kevin Hartmann-Cortés, Centre de rechercheinterdisciplinaire Droit, Entreprise et Société (CRIDES) & Hoover Chaire of
Economic and Social Ethics, UCLouvain, Place de Montesquieu 2, bte L2.07.01, Louvain-La-Neuve, Walloon Brabant,
Belgium.
Email: kevin.hartmann@uclouvain.be
1. (Fleming and Espinoza, 2022; OECD, 2022).
2. I am referring to money (coins, banknotes and similar) as the mechanism that seeks to capture the value of those goods and
services (Donovan, 2015: 3).
Article
European Journal of Social Security
2022, Vol. 24(4) 319–341
© The Author(s) 2023
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DOI: 10.1177/13882627221147276
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social benefit entitlements. If there is inflation, their real value will decrease. By affecting the value of
someone’s property, inflation interferes with an individual’s ability to fully participate in economic life.
The peaceful enjoyment of private property is a right recognised by Article 1 Protocol 1 of the
European Convention on Human Rights (A1P1). This norm commands Convention States to refrain
from interfering with the peaceful enjoyment of an individual’s‘possessions’. If an interference
should happen, it must be lawful, adequately justified, proportional, and strike a balance
between the individual and general interest. The European Court of Human Rights (ECtHR; the
Court) is the institution in charge of ensuring that signatory states follow the Convention. It receives
applications from individuals challenging a governmental measure for breaching their Convention
rights, and assesses whether such a breach has taken place.
Inflation has not been a popular topic in the case law. So far, there have been only 15 cases
raising concerns about inflation as a matter of A1P1. These could be divided into two groups.
The first group contains allegations invoking A1P1 against the depreciation of claims directed to
other individuals as a consequence of inflation. For instance, savings deposits or compensation
claims for wrongly granted sums.
3
The second group consists of allegations against the state for
delaying compensation payments for expropriation. Inflation, in this case, had the same effect on
the real value of these payments.
4
What all these cases share is a concern about the effects of infla-
tion on an individual’s monetary claims. Ultimately, they all question whether the state has any
obligation to maintain their real value. So far, the Court has provided different answers depending
on the case. However, overall, it has been rather hesitant to admit a state’s obligation to protect indi-
viduals from inflation on the basis of A1P1.
Should anything change if the property under scrutiny is a social benefit entitlement? By social
benefit I refer to both social security and social assistance entitlements, since the Court has groupe d
all social benefit entitlements within the same category from 2005 onwards. According to the
ECtHR, regardless of the way they are financed or arranged, these entitlements are considered ‘pos-
sessions’for the purposes of A1P1.
5
One of the special features of this type of ‘possession’is the
way in which the government could interfere with its peaceful enjoyment. According to the Court:
‘[t]he reduction or the discontinuance of a pension may therefore constitute interference with
[those] possessions that needs to be justified’.
6
This means that both total deprivation of a
benefitaswellasthepartial reduction of its value may trigger the A1P1 guarantees.
So far, the Court has judged cases involving total deprivation or partial benefit reductions as a
result of legislative measures. However, the questions I explore in this article are different. They
3. See ECtHR Gayduk and Others v Ukraine [GC] App no 45526/99, decision of 2 July 2002; Appolonov v Russia App no
67578/01 (First Section) (29 August 2002); Todorov v Bulgaria App no 65850/01 (Fifth Section) (13 May 2008);
Poltorachenko v Ukraine App no 77317/01 (Second Section) (18 January 2005) § 38; Zbaranskaya v Ukraine, App
no 43496/02 (11 October 2005); Sherstyuk v Ukraine App no 37658/03 (Fifth Section) 18 September 2006; Boyajyan
v Armenia App no 38003/04 (Third Section) (2 June 2011) § 54; Ryabykh v Russia App no 52854/99 (First Section)
(3 December 2003) § 63; Dolneanu v Moldova App no 17211/03 (Fourth Section) (13 February 2008) § 31.
Moreover, ON v Bulgaria App no 35221/97 (Fourth Section) (6 April 2000) for the second sub-set of claims.
4. See ECtHR Aka v Turkey App no 107/1997/891/1103 (23 September 1998); AyşeBaşv Turkey App no 68126/01 (Third
Section) (23 November 1998) and, finally, Akkus v Turkey App no 19263/92 (9 July 1997).
5. ECtHR Stec and Others v the United Kingdom [GC] App nos 65731/01 and 65900/01 (6 July 2005) §51.
6. See ECtHR Kjartan Ásmundsson v Iceland, App no 60669/00 (12 October 2004); Maggio and others v Italy, App nos
46286/09, 52851/08, 53727/08, 54486/08 and 56001/08 (Second Section) (31 August 2011),and Valkov and others v
Bulgaria, App nos 2033/04, 19125/04, 19475/04, 19490/04,19495/04, 19497/04, 24729/04, 171/05 and 2041/05 (25
October 2011) § 84. The words in brackets are mine.
320 European Journal of Social Security 24(4)
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