Constitutional Judge, Social Rights and Public Debt Crisis The Portuguese Constitutional Case Law

• Published in: Maastricht journal of European and comparative law Vol. 22; no. 5; pp. 678 - 705
• Main Author: Martins, Ana Maria Guerra
• Format: Journal Article
• Language: English
• Published: London, England SAGE Publications 01.10.2015
• Subjects: financial and public debt crisis; social rights; Portuguese Constitutional Court; constitutional principles; case law
• ISSN: 1023-263X; 2399-5548
• DOI: 10.1177/1023263X1502200503

The purpose of this article is to demonstrate the consistence and coherence of the case law of the Portuguese Constitutional Court concerning social rights during the public debt crisis. The Constitutional Court accepts that the legislature has a wide margin of appreciation to reverse the level of protection of social rights. This includes the right to a fair wage, the right to a pension, and the right to social benefits. However, the retrocession of social rights shall pursue a significant public interest and respect the principles of equality, proportionality and legal certainty comprised in the rule of law. When the Constitutional Court considers that these principles are violated, it does not hesitate to declare a norm unconstitutional, even if, according to the government, the norm or norms in question are essential in order to fight the economic and financial crisis. The so-called ‘case law of the crisis' has been strongly criticized. This study will mainly analyse and contest the arguments of the critics.