TRIBUNAL CONSTITUCIONAL Portugal

RULING Nº 474/02

19 of November of 2002

Head notes:

A constitutional provision in respect of which unconstitutionality by omission is pleaded must be sufficiently precise and concrete for the Court to be able to determine what legal measures are necessary to implement it without having to give a decision on possible different policy choices. Hence, since the Constitution gives Parliament virtually unlimited possibilities, the Court could not find a violation of the duty to legislate on the basis of solely legal criteria. Consequently, since a political opinion cannot be the basis of a judicial finding of unconstitutionality by omission, it becomes impossible to reach such a finding.

A finding of unconstitutionality by omission therefore presupposes a concrete and specific case of violation of the Constitution, established on the basis of a sufficiently precise rule, which the ordinary legislature has not rendered enforceable in due time. Moreover, a finding of unconstitutionality by omission can also be based on constitutional provisions recognising social rights, provided the constitutional requirements are met.

Summary:

The Provedor de Justiça asked the Court to assess and review the unconstitutionality resulting from the lack of the requisite legislative measures for the rule contained in Article 59.1.e of the Constitution to be fully implemented in respect of public servants.

The Constitutional Court noted that, under the terms of Article 283 of the Constitution, a case of unconstitutionality by omission existed where:

1. a particular constitutional provision was not complied with;

2. that provision was not enforceable in itself;

3. the legislative measures necessary in the specific case were lacking or inadequate; and

4. that lack was the cause of failure to comply with the Constitution.

Accordingly, it was important to consider whether the constitutional provision concerning the right to material assistance in the event of unemployment met the requirements for finding a case of unconstitutionality by omission, even if that right was a social right and should not be regarded as analogous to rights, freedoms and guarantees. The material assistance referred to in Article 59.1.e of the Constitution must necessarily take the form of a specific benefit directly related to the situation of involuntary unemployment. This benefit must form part of the social security system and could only be established by means of legislation.

This was therefore a specific legislative obligation contained in a sufficiently precisely worded provision. That was of course without prejudice to the ordinary legislature's wide margin of appreciation. Parliament was required to provide a welfare benefit for those who found themselves involuntarily unemployed, but, in return, it could choose among the different forms of organisation and among the different criteria for fixing the amount of that benefit. Lastly, it should be noted that Article 59 of the Constitution was applicable to all workers, including, obviously, public administration workers.

Consequently, it could be concluded that the Constitution imposed on Parliament a specific and concrete obligation to provide a benefit corresponding to material assistance to workers - including public administration workers - who found themselves involuntarily unemployed, failing which an action might be brought for unconstitutionality by omission.

Although public administration workers, and more specifically those who were recruited to a post by appointment or by administrative contract, were generally not entitled to unemployment benefit, because they were not affiliated to the general social security scheme, some of them were now entitled to unemployment benefit under special legislation. This did not apply to those who were recruited under a fixed-term contract and those who, by way of an exception, were employed under an individual contract. Subject to these exceptions, public administration workers recruited to a post by appointment or by administrative contract were not yet entitled to unemployment benefit or to any other specific benefit in the event of involuntary unemployment, because these workers could not join the general social security scheme.

In the instant case, the result was a partial omission, given that Parliament had implemented a constitutional provision which required it to secure the right to material assistance to workers who found themselves involuntarily unemployed, but it had only secured that right to some of them, as public administration workers generally were not included. This partial omission was in itself sufficient for a finding of unconstitutionality by omission. Furthermore, if one took into consideration the time which had already elapsed since the Constitution came into force, the obvious conclusion was that sufficient time had elapsed for the legislative task in question to be accomplished.

The Constitutional Court found, therefore, that the Constitution had been violated in view of the failure to take the legislative measures required for the implementation of the right provided for under Article 59.1.e of the Constitution, in relation to public administration workers.