TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 296/15

25 of May of 2015

Headnotes:

A norm subjected recognition of the right to the Social Insertion Income (RSI) to fulfilment of a number of requisites, one of which was that if the applicant was not a national of a European Union (EU) Member State, a European Economic Area (EEA) country, or another state with an agreement with the EU permitting the free movement of persons, he/she must have resided in Portugal legally for the last three years. The same norm also denied the RSI in cases in which the remaining members of the applicant’s household (except for children below the age of three) had not also lived in Portugal for at least the last three years. The Constitutional Court declared the norm unconstitutional on both counts.

The Constitution requires an attitude of openness towards foreign citizens, and as a rule grants them the same rights and subjects them to the same duties as Portuguese citizens. Over the years the Constitutional Court has confirmed this in its jurisprudence, in which it has recognised the principle of equivalence as a specific imperative general principle applicable to matters linked to the status of foreigners. Where a core set of universal rights with constitutional or international origins is concerned, this principle is valid for every foreigner, and not just those whose presence in Portugal complies with all the applicable rules. The ordinary legislator can establish exceptions to this principle, subjecting the enjoyment of certain rights to possession of Portuguese nationality, but only if the restriction is constitutionally legitimate. The constitutional norm that enshrines the principle of equivalence itself establishes a number of exceptions, but this legitimacy can also exist if the ordinary legislator acts in order to safeguard another constitutionally protected right or interest and the restriction is necessary to that end – i.e. if the limiting measure is necessary, appropriate, and proportional in the strict sense of the term. In the legal regime governing the entry into, presence in and departure and removal of foreigners from Portuguese territory, the Portuguese State has created a number of requirements intended to prevent persons without adequate means of subsistence from entering and remaining in this country. The law imposes requisites which signify that a person must already possess or have access to such means before a residence permit, be it temporary or permanent, can be granted; and only those foreign citizens who hold a valid residence permit of either type can apply for the RSI.

The Administration has the opportunity to verify whether foreign citizens who ask leave to enter or remain in Portuguese territory are economically autonomous, thereby impeding any abnormal flow of foreigners without resources who might place an excessive burden on the social security system.

The Court acknowledged the compelling nature of the interest in preventing excessive costs for the social security system, and the need to ensure a certain prior connection with this country in order to avoid both an inconstant presence and the award of unfair benefits. However, it said that imposing a requirement for three years of legal residence would necessarily undermine the possibility of timely access to a benefit whose purpose is to ensure that citizens experiencing serious economic hardship and social and occupational disinsertion possess the minimum resources needed for subsistence. By subjecting the right to a welfare benefit that provides a minimally dignified standard of living – a right that results from the combination of the principle of the dignity of the human person and the right to social security in cases of hardship – the legislator would be subjecting foreigners to a sacrifice that was disproportionate in relation to the purposes of the restriction. This legislative option affected people in very vulnerable situations, who did not possess the immediate means to provide for their household’s most basic needs, and who had been allowed to enter Portugal in compliance with the rules laid down by the legislator itself, namely with regard to the requisites in terms of sources of income or other material means. The Court said that when weighed up against the very limited costs of the RSI within the overall social security budget and the tiny amount spent on awarding it to beneficiaries who are not Portuguese nationals (the amount of the RSI is itself small, and it is given to a very limited universe of beneficiaries), the legislative solution was clearly disproportionate.

The Court considered that the imposition of a three-year requirement was excessive and conflicted with the right to a welfare benefit whose purpose is to ensure the most basic means of subsistence. As such, it found the norm unconstitutional on the grounds that it was in breach of the principle of proportionality.

Summary:

This abstract ex post facto review case was brought before the Constitutional Court by the Attorney-General. The norms under review formed part of the legal regime governing the Social Insertion Income (RSI), which is a social benefit included in the welfare subsystem and is designed to support people experiencing serious economic hardship. There are two aspects to the RSI: the benefit itself is a cash payment to provide for the most basic needs of the recipient and his/her household; and it requires the beneficiary to enter into an insertion contract intended to help with his/her social and occupational integration. The benefit was first developed in the wake of the 1992 Recommendation in which the Council of the European Communities urged all the Member States to adopt a measure that would fight poverty and social exclusion in an integrated way.

The petitioner had originally asked the Constitutional Court to consider both a part of the norm addressed in this case that required Portuguese citizens to have resided legally in Portugal for at least a year before being eligible for the RSI, and another norm which said that the members of an RSI applicant’s household also had to have lived in the country for a year in order for the applicant to be eligible. In response to a separate petition lodged by the Ombudsman, the Court declared both these norms unconstitutional with generally binding force in Ruling no. 141/15. As a result of this declaration, the unconstitutional norms ceased to be Portuguese law and this part of the petition made by Public Prosecutors’ Office thus became redundant. However, these declarations of unconstitutionality only covered the segment of the first norm that affected Portuguese citizens and their family members. A second segment requires nationals of other EU Member States, EEA countries, or other states with an agreement with the EU permitting the free movement of persons to have resided legally in Portugal for at least a year before being eligible for the RSI; while a third segment subjected the eligibility of nationals of states other than those to a three-year period of residence. Both of the latter segments remained in force, but in the present case the Court said that it was restricted to reviewing the third segment only.

In abstract ex post facto reviews like the present one (and also in concrete review cases), the Constitutional Court is competent to consider both whether a norm is unconstitutional because it is in breach of the Constitution, and whether it is illegal because it violates a norm in a law with superior force. The Attorney-General asked the Court to review the norms from both these perspectives, arguing with regard to the question of illegality that the norms contained in the Law governing the Bases of the Social Security System (LBSS) – a Law with superior force – parameterise the Law that created the RSI.

The Court agreed that the LBSS possesses parametric value in relation to the RSI Law. However, it noted that the former could not provide the grounds for saying that the latter was invalid in relation to EU citizens (or other foreigners with equivalent status), because the LBSS only distinguishes between two categories of citizen – Portuguese, and non-Portuguese, with the latter’s eligibility for welfare benefits subject to certain conditions, namely minimum periods of legal residence or other equivalent situations. The Court said that in this respect it is possible to question whether EU and equivalent citizens should be included in the non-Portuguese category, inasmuch as they enjoy a special status which, in the light of both the Portuguese constitutional-law framework and primary European Union law, tends to be equivalent to that of Portuguese nationals.

The Constitutional Court was thus not in a position to consider the difference between the rules applicable to different categories of foreign citizens derived from the fact that the LBSS only distinguishes between nationals and non-nationals, whereas the RSI Law differentiates between three categories.

In the past the Constitutional Court had already concluded that there can be no doubt that EU Law tolerates regimes which differentiate between nationals of the host Member State and other EU nationals when it comes to awarding benefits under a non-contributory regime that guarantees minimum means of subsistence.

It was thus necessary to ask whether the fact that the norm before the Court restricted recognition of foreign citizens’ right to the RSI was a constitutionally legitimate exception to the principle of equivalence.

The Court had already characterised the RSI as a positive dimension of a right to a minimally dignified standard of living – a right that possesses the configuration of an autonomous right, constructed on the basis of the conjugation of the principle of respect for human dignity and the right to social security. The Court said that there would have to be a strong reason for there to be an exception to this aspect of the principle of equivalence, and any restriction on access to the RSI by foreigners would have to be limited to that needed in order to safeguard other rights or interests to which the Constitution also affords its protection.

The Constitutional Court considered that the preservation of the financial sustainability of the social security system would certainly appear to constitute sufficient grounds for justifying exceptions to the principle of equivalence. However, in the present case the requirement for three years of residence was a sacrifice that was disproportionate to the public-interest advantage sought by its imposition, and this disproportionality determined the Court’s finding that the norm before it was unconstitutional.

Supplementary information:

The Ruling was the object of 5 extensive dissenting opinions. Their authors gave a range of reasons for their disagreements with the majority, one of which was the incongruous fact that the combination of the declaration of unconstitutionality with generally binding force in Ruling 141/15 (in which the Court only ruled on the part of the norm that required Portuguese citizens and their households to have legally lived here for a year before being eligible for the RSI) and the declaration made in the present Ruling means that European citizens who apply for the RSI benefit are now subject to a requirement to have resided in Portugal legally for a period of time which is no longer applicable to nationals of non-EU or non-EEA states or countries that do not have a free movement agreement with the EU.

Ruling no. 141/15 was sent to the Venice Commission as part of the selection for the first four months of 2015.

Cross-references:

See Rulings nos. 54/87 (10-02-1987); 340/95 (22-06-1995); 962/96 (11-07-1996); 423/01 (09-10-2001); 72/02 (20-02-2002); 345/02 (11-07-2002); 509/02 (19-12-02); 96/13 (19-02-2013); and 141/15 (25-02-2015).