Belgica

THE RIGHT TO SOCIAL SECURITY IN THE BELGIAN CONSTITUTION

P. Schoukens

1. INTRODUCTION

Article 23 Belgian Constitution:
Everyone has the right to live a life in conformity with human dignity. To this end, the laws, decrees and rulings alluded in Article 134 guarantee, taking into account corresponding obligations, economic, social and cultural rights, and determine the conditions for exercising them.
These rights include notably:
1.  The right to employment and to the free choice of professional activity in the framework of a general employment policy, aimed among others at ensuring a level of employment that is as stable and high as possible, the right to fair terms of employment and to fair remuneration, as well as the right to information, consultation and collective negotiation;
2.  The right to social security, to health care and to social, medical and legal aid;
3.  The right to have decent accommodation;
4.  The right to enjoy the protection of a healthy environment;
5.  The right to enjoy cultural and social fulfilment.

In this contribution we will discuss the right to social security in the Belgian Constitution and its relation to the different social security reforms due to the recent economic crisis. The main research question is the following: “Can the right to social security in the Belgian Constitution be used as a real instrument to prevent social regress and as a stop for the roll-back of social expenses in times of crisis?"

In order to answer our main question, the contribution is divided into four chapters, in each of them we will discuss a different topic. The first chapter will look at the different constitutional guarantees that protect the social security system in Belgium, namely the right to social security (Article 23), the prohibition of discrimination (Articles 10 and 11) and the right to property (Article 16 of the Belgian Constitution and Article 1 Protocol no. 1 ECHR).
In the second chapter, we will examine the material and personal scope of the right to social security in Article 23 in detail. Before doing so, we will briefly discuss its development.
The third chapter will provide a short overview of the case law of the Belgian Constitutional Court and the doctrine with regard to the right to social security. Due to theconcise formulation of the Belgian constitutional legislator, the Court and the literature had to define the contents and scope of this article. Moreover, the case law of the Constitutional Court will allow us to sketch the possible impact of the right to social security on national legislation and the Belgian legal system as a whole.
The fourth chapter will further elaborate on possible threats to social security rights due to the recent economic crisis. This chapter will describe some of the recent and future changes in Belgian social security law succinctly. In addition, the possible impact of the European Semester of the European Union on the Belgian social security system will also be discussed. Finally, in the conclusion an answer will be formulated to the central research question.

2. OVERVIEW OF THE CONSTITUTIONAL GUARANTEES OF SOCIAL SECURITY RIGHTS

Despite the fact that the Belgian Constitution does not explicitly proclaim Belgium as a ‘social state’, it does contain several guarantees for social security claims. This chapter will briefly discuss each of them. Firstly, Article 23 will be examined, followed by a brief overview of the prohibition of discrimination in Articles 10 and 11 of the Constitution. Finally, we will look succinctly at the right to property in Article 16 of the Belgian Constitution and Article 1 Protocol no. 1 European Convention on Human Rights (ECHR).

a. Right to social security
Article 23, which contains the right to social security, consists of three separate parts, each having its own specific function. The first paragraph sets out an overarching principle, namely “the right to live a life in conformity with human dignity” that serves as the foundation for the more specific social and economic rights. To this end, the second section of Article 23 points out that the Belgian legislator, both at the federal and the regional level, should take into account the different social, economic and cultural rights when exercising its competences.
Finally, Article 23 consists of a non-exhaustive list of economic, social and cultural rights that has to provide the contents of the overarching principle.  This list contains amongst others the right to employment and to the free choice of an occupation within the context of a general employment policy and the right to social security. However, no practical information was given by the constitutional legislator on how to interpret this right to social security.  The case law of the Belgian Constitutional Court is therefore of utmost importance in determining and interpreting the concrete scope of Article 23 (cfr. Chapter three). In chapter two we will discuss the material and personal scope of the right to social security further.

b. Prohibition of discrimination
Articles 10 and 11 of the Belgian Constitution provide, like Article 23, some protection for social security claims. Article 10 formulates the principle of equality, while Article 11 contains a general prohibition of discrimination. The Belgian Constitutional Court often combines both articles to interpret the constitutionality of legal norms. In order to do so, the Court has established a specific test which is based upon the case law of European Court of Human Rights.  This specific test comprises the following criteria:
1)  Prohibition of arbitrariness (distinction must have a legal or justified goal as objective)
2)  Criterion of objectivity (distinction must have an objective character)
3)  Criterion of adequacy (distinction must be able to reach the justified goal)
4)  Criterion of proportionality (the legal measures must be in proportion with the justified goal)
The Belgian Constitutional Court has used Articles 10 and 11 in social security matters in the past. It is important to note that before 2003 the Constitutional Court could only test the validity of Belgian legislation against Articles 10 and 11, but not against Article 23. As a result, Articles 10 and 11 of the Constitution have played an important role in social security cases. For example, in 2003 the Court had to interpret an article of the Belgian Social Aid Statute (OCMW-wet) that limited social aid of urgent medical care for illegal residents.  According to the Court, there was a double discrimination. First, illegally staying children and legally staying children were treated unequally. As the objective of the legislation was to encourage persons leaving the country, the criterion was not adequate because both categories were not capable of leaving the country by themselves. A second discrimination concerned the equal treatment of illegally staying adults and illegally staying children. The former have the choice to leave the country, whilst the latter do not. Consequently the Social Aid Statute had to be adapted: illegally staying children now have to right to receive the necessary assistance.

c. Right to property
The right to property in Article 16 of the Belgian Constitution provides another guarantee for the protection of social security claims. This article protects citizens against the expropriation power of the state and it entails a duty for the state to find a balance between the public interest and the owner’s private interests. It remains uncertain whether social security claims can be regarded as property.   As no social security claims have been brought before the national courts invoking Article 16 of the Constitution so far, nor does it provide a definition of property.  Although Article 16 could play a role in cases where social benefits are lowered or even abolished by law, it is uncertain at this moment.
It seems that national courts rather refer to Article 1 Protocol no. 1 ECHR (for now). There are various reasons that explain this. First, only the Constitutional Court can judge the validity of Belgian legislation with the Constitution, whilst all courts can decide not to apply a statute when not in conformity with the ECHR. Secondly, the concept of property in Article 1 Protocol no. 1 ECHR seems broader than the one in Article 16 of the Belgian Constitution.  It is clear from the case law of the ECHR that social security claims, regardless of them being financed by contributions, can enjoy the protection of Article 1 Protocol no. 1 ECHR.  Thirdly, it is not necessary that loss of property is definitive under Article 1 Protocol no. 1 ECHR, while the Belgian Supreme Court  (Hof van Cassatie /Cour de Cassation) does require this with regard to Article 16. 

3. PERSONAL AND MATERIAL SCOPE OF THE RIGHT TO SOCIAL SECURITY IN ARTICLE 23 OF THE BELGIAN CONSTITUTION

a.  Development
The right to social security, as included in Article 23 of the Belgian Constitution, is the result of several years of political debate and deliberation that started in 1988 and ended in 1994 with the adoption of a catalogue on economic and social rights.  During the first years of this period, the Belgian government was barely interested in supporting the original parliamentary proposal.  This proposal was not considered urgent and the Government decided to prioritize other legislative acts in the same domain such as the approval of the revised European Social Charter.
During the period between 1992 and 1994, the debate about economic and social rights came to the fore. Both the federal Parliament and the Senate started working at two concrete proposals to adopt several social and economic rights in the Belgian Constitution. The Parliament formulated the different socio-economic rights negatively , contrary to the Senate that formulated the rights in a positive way. Eventually, the Senate’s proposal was adopted in 1994.

b.  Material scope
The text of Article 23, third section, 2° of the Belgian Constitution, entails “the right to social security, to health care and to social, medical and legal aid". The distinction between social security, health care and social aid was based on the International Covenant on Economic and Social Rights which distinguishes between the right to social security (Article 9) and the right to an adequate standard of living and the right to the best possible physical and mental health (Articles 11 and 12).
The concept of social security is not defined in the Constitution, nor does the constitutional legislator explain in what direction social security should evolve or what standards should be used in order to determine whether there is a violation of Article 23. It seems that the preparatory works defined social security in a rather restricted sense, namely as an overall term for all social insurances against recognized social risks.
As LECLERQ pointed out, even though there is no precise or commonly accepted definition of the concept of social security, the constitutional legislator has tried to make clear that the right to social security should be perceived as the right to having an occupation, e.g. the self-employed worker, the public servant or the employee, to be socially insured. This right is linked to the duty of paying social security contributions.

c. Personal scope
Article 23 of the Belgian Constitution states that “everyone” has the right to live in human dignity. Nationality is hence not a requirement to enjoy the right to social security. Nevertheless, the fact that different social security schemes, for example, exist for civil servants, self-employed and wage-earners, does not breach the right to social security in Article 23 of the Belgian Constitution.  Article 23 thus does not implicate that everyone has the right to enjoy the same social security system.
Moreover, the Belgian Constitutional Court interprets the word “everyone” in a strict sense , wherefore it is possible to limit the application scope of social and economic rights to certain categories of persons in order to achieve a goal of general interest.  The restriction of social assistance benefits to the extent of urgent medical care for adult illegal immigrants was, for instance, in conformity with Article 23 (case 131/2001).  According to the Court, the state should not assume the same responsibilities for illegal residents and individuals residing lawfully in Belgium. However, as stated above, the fact that social assistance benefits were restricted to urgent medical care for both illegal adults as minors was contrary to Articles 10 and 11 of the Belgian Constitution (case 106/2003).  This means that the national legislator will still need to respect the prohibition of discrimination in Articles 10 and 11 of the Belgian Constitution.

4. THE IMPACT OF THE RIGHT TO SOCIAL SECURITY ON THE BELGIAN LEGAL SYSTEM

The formulation of Article 23 was rather vague and needed further clarification by national courts and doctrine to define the concrete contents and the possible impact of this article on the domestic legal system. For that reason, this chapter will give an overview of the case law of the Belgian Constitutional Court and the relevant doctrine. Furthermore, by looking at the case law of the Court, we will get an impression of the possible impact of the right to social security on Belgian legislation as the Constitutional Court is able to test the validity of Belgian legislation in relation to Article 23 since 2003.
The margin of discretion given by the Constitutional Court to the Belgian legislator and the corresponding obligations that can be imposed on individuals, will first be discussed. Secondly, the question whether the right to social security has direct effect will be dealt with as well as the principle of standstill. In a final part, an overview of some recent critiques and ambiguities concerning the right to social security will be given.

a. Margin of discretion
A first question raised before the Constitutional Court concerned the margin of discretion of the different legislators in Belgium with regard to the development of the right to social security.  The Belgian Constitutional Court decided that the lack of clarity of the right to social security in the Constitution implies that the legislator himself had to define the specific content of this right.  This means that the legislator has a rather large margin of discretion in realizing the right to social security.
In addition, the legislator could delegate some of his powers to establish the content of Article 23, when he has indicated the specific subject and the limits to the delegation of powers. According to the Court, the highly technical and complex nature of social security legislation can be considered a justified delegation of power.  As social security legislation requires the possibility for a flexible and swift reform, it is sufficient that the legislator lays down the overall guidelines and objectives for the executive.

b. Corresponding obligations in Article 23 of the Belgian Constitution
Part two of Article 23 of the Belgian Constitution specifies that the different economic, social and cultural rights guaranteed under this article, can also contain “obligations" that individuals have to fulfil. As PIETERS and SCHOUKENS point out, the Belgian Constitution does not usually mention fundamental obligations, which makes the reference to the corresponding obligations - which individuals have to fulfil when they call upon Article 23 - all the more relevant.
In principle, the Belgian government must ascertain that individuals can enjoy the right to live in dignity, for example, by organizing a social security system that provides for an adequate safety net.  However, the basic rights under Article 23 can be limited on the basis of admissibility criteria.  In order to receive social benefits, individuals should make efforts to receive an income, by, for instance, looking for a job.  In the context of social security law, this means that an individual could be refused social aid when he/she systematically fails to assume his/her responsibilities towards society.
The assertion of the reference to corresponding duties shows that the social rights guaranteed in Article 23 are not absolute, but that they possess a relative character as not everyone can claim these rights unconditionally. However, the Court did point out that the corresponding obligations have to be proportionate in order to enable everyone’s realization of their right to live in human dignity. 

c. Direct effect
The question whether Article 23 has direct effect or not, has been debated since its introduction in the Belgian Constitution. The original intention of the constitutional legislator was that Article 23 would not have direct effect. In order to avoid that doctrine and jurisprudence would accord direct effect to Article 23, the constitutional legislator stated explicitly that secondary law should establish and regulate social rights. As a result, it is generally alleged that individuals cannot deduct subjective rights from the right to social security.
Subsequently, part of the doctrine and the judiciary followed the decision of the constitutional legislator.  However, an increasing number of (lower) courts, such as the Court of Appeal of Mons, did accord direct effect to a part of Article 23, more specifically to the overarching principle of it (“the right to live a life in conformity with human dignity"). This case concerned a subsistence level payment within the law on social service departments (OCMW-wet). Yet, the direct effect of Article 23 with regard to social aid is not unconditional, as it is linked to the willingness to work.
One could apply the same reasoning for the right to social security. As PIETERS and SCHOUKENS stated: if someone is socially insured and fulfils his/her duties in relation to the social security institution, but does not receive a social benefit, that person could claim his right to social security from the institution.  However, the courts have not granted direct effect to the right to social security itself at the moment. Nevertheless, it is important to note that even if the right to social security would have direct effect, this does not mean that its direct effect is unlimited, just as the right to social security is not unconditional.

d. The principle of standstill
In the preparatory works concerning the adoption of Article 23, the Belgian Senate had mentioned the existence of a “standstill - principle”  for the socio-economic rights under this article.  Yet, this principle was not mentioned in the final draft of the article which meant that the question whether Article 23 included a principle of standstill was left to the Constitutional Court.  In case 169/2002, the Court accepted the existence of a standstill- principle, which obliges the legislator to abstain from lowering the level of social assistance’s protection.  In case 5/2004, the Court confirmed its previous case but added that the standstill-principle prohibits the legislator to diminish the protection that existed at the moment Article 23 came into force in a considerable way.  According to the Court, the Belgian legislator cannot derogate from the protection level that existed at the moment of introducing Article 23 to the Belgian Constitution (in 1994).  In this way, the Court prohibits measures that would result in a significant deterioration of the rights ensured by the right to social security.
The standstill-principle in Article 23 does not guarantee that the social security system should be gradually extended in Belgium , nor does it mean that the legislator cannot touch upon the modalities of certain social security benefits anymore.  Moreover, the Belgian doctrine considers this standstill-principle only as a relative duty for the Belgian legislator in the sense that it prohibits a substantial decline of the rights in Article 23. The legislator still has the freedom to decide on how to guarantee these rights in the most adequate way.  In certain cases a reduction of social security rights could be justified for the sake of public interest.  According to MAES, this still leaves ample space to withdraw social rights in the case of severe economic problems.  To conclude, the right to social security allows for some restrictions as long as they do not declare the constitutional right completely void and they are not unlimited in time.

e. Ambiguities and criticism
As the Belgian Constitutional Court seems to have a rather reticent attitude when reviewing legislation’s conformity with the right to social security, the Belgian legislator has a large margin of discretion for the realization of Article 23, third section 2°.  As BOSSUYT points out, the Court has been more reluctant with regard to the social and economic rights under Article 23, than with regard to classic rights and freedoms.  However, with the acceptance of the standstill-principle, the Court gradually makes a profound legal protection possible with respect to the right to social security. This brings about that the Constitutional Court still leaves the legislator a large margin of discretion.
Some ambiguities concerning the right to social security in Article 23 have to be solved in the future. Firstly, it is still uncertain whether the right to social security has direct effect in the Belgian legal order. Legal doctrine and jurisdiction both accepted the direct effect of several parts of Article 23 of the Belgian Constitution. However, this seems to conflict with the constitutional legislator’s original intention.  Secondly, the contents of the right to social security are not entirely clear and will need further refinement by the Constitutional Court.
Thirdly, the case law of the Constitutional Court is criticized by legal scholars because Article 23 does not accord with Article 12 (3) of the (Revised) European Social Charter that establishes the states’ obligation to gradually extend the protection’s scope of the national social security system. Such gradual extension is not accepted by the Constitutional Court.
At last, it is not clear in which way the standstill-principle of the Constitutional Court should be applied in practice at this moment. Although it has been extensively studied by the legal doctrine, the standstill principle still needs further elaboration and refinement.  Hence we can conclude that the right to social security in the Belgian constitution is still, twenty years after its enactment, in a transitional phase. Some additional flesh should be put on the bones of Article 23 by either the Constitutional Court or the competent Belgian authorities in order to provide a firm and legally secure guarantee for the protection of social security rights in Belgium.

5. SOCIAL SECURITY RIGHTS IN TIMES OF ECONOMIC CRISIS

This chapter will provide an overview of the most important changes in the Belgian social security system during the recent economic crisis (from 2007 until now). As this is a legal contribution, we will focus upon a couple of important legislative changes in Belgian social security law, more specifically in the area of pensions and unemployment benefits. We will also take a closer look at some recommendations from the Council of the European Union under the European Semester  which may have an influence on the current social security reforms in Belgium.

a. Recent social security changes in Belgium
At the end of 2011, the Belgian pension system was reformed by a statute in which the Belgian Government quickly approved some final issues before the end of the year.  The legislator wanted to render early retirement increasingly difficult by installing different reforms. First, the early retirement age was raised for all citizens to 62 years.  This increase will be realized gradually, with a pension age-gain of half a year, starting in 2013. In this way, the actual pension age of 65 years will be reached in 2016. These reforms also altered the minimum career length, which was increased from 35 to 40 years.  Again, this increase will be realized gradually, starting in 2012 and ending at 42 years in 2015. Furthermore, the statute repealed some special pension schemes for sailors and pilots.  The statute also introduced more stringent criteria for several periods of non-activity which are equivalent to work for the determination of the career length.  Finally, the calculation of the pension for civil servants was made less favourably: their pension will now be calculated on the basis of the average income received the last ten years of their career instead of the last five years.
Changes were moreover made to the survivor’s pension system in order to remove the existing unemployment traps. The survivor’s pensions currently aim at compensating the financial losses regarding the spouse’s death. However, as this pension can only be combined with a limited professional income, persons who were granted a survivor’s pension reduced or in some cases even stopped their professional activities.  From 2015 onwards, the survivor’s pension will be replaced by a transitional allowance for widowers or widows under 45 years old, allowing to cumulate this benefit with a professional income.  The age of 45 will be gradually increased, to 50 years in 2025. Finally, the survivor’s pension shall also be limited in time: two years for a widow or widower with dependent children, one year otherwise.
As of November 2012, a reform regarding the Belgian unemployment benefits entered into force.  While preserving the Belgium regime of unemployment benefits unlimited in time, some changes were introduced to ensure that the unemployed will return quicker to the labour market. These changes concern, amongst others, the amount of the unemployment benefits, granting higher unemployment benefits in the first three months of unemployment and decreasing benefits quicker.  In calculating the benefits, the period during which an individual previously worked as an employee and the period of unemployment will play a more important role.

b. Country-Specific recommendations under the European Semester
The Country-Specific recommendations under the European Semester are part of the budgetary supervision procedure at the level of the European Union. Due to the crisis this supervision mechanism was tightened, amongst others, through the creation of the European Semester. The European Semester is a yearly cycle of economic policy coordination where the Commission analyses the projected economic and structural reforms of the member states and provides recommendations for each of them.   When member states do not act upon these recommendations within the time frame given by the Commission and the Council, a warning can be issued. In the case of excessive macro¬economic imbalances, the Council can issue a sanction against the member state in question.
The Country-Specific recommendations under the European Semester lay down measures in order to strengthen the economic position of the member states, including the national social security systems as they are an important part of the national budgets.
In the Country Specific recommendations of 2014 and 2013, the Commission and the Council encouraged Belgium to close the gap between the effective and statutory retirement age and to pursue the ongoing reforms of reducing early-exit possibilities.  Furthermore, Belgium has to invest in active-aging programs and in increasing the statutory retirement age by aligning the retirement age with the life expectancy. Also, the cost-efficiency of public spending on long-term care has to be improved.
Besides, the Commission and the Council emphasized the importance of the the long¬term sustainability’s improvement of Belgian public finances. Belgium can realize this by curbing age-related expenditure, which includes health care expenditure. In 2011 and 2012, Belgium received a similar remark from the Council and the Commission.
Moreover, the Council and the Commission urged Belgium in 2011 and 2012 to pursue the initiated reform of the unemployment benefit system to reduce disincentives to work and to strengthen the focus of activation policies on vulnerable groups, in particular people with a migrant background.  Belgium should also reduce the high social security burden for low paid-jobs.

c. Recent and future changes to the Belgian social security system and the right to social security
During the crisis, the pension reforms, which increased the early retirement age to 62 years and adapted the social statute of civil workers, made early retirement increasingly difficult. The survivor’s pensions and the unemployment benefits were also reformed in order to increase the labour force participation rate. These reforms were (at least to a certain extent) the result of the Country-Specific recommendations addressed to Belgium.
The question remains which reforms regarding the Belgian social security system will be established in the near future. During the Belgian elections of May 2014, social security reform was an important topic: several political parties suggested an increase of the retirement age, an abolition of unemployment benefits unlimited in time and some proposed the rationalization of the overall social security system together with the elimination of possible abuses.
Besides political wishes to reform the social security system in Belgium, the European Union also has an increased impact on the Belgian social security legislation. In the yearly Country-Specific recommendations, Belgium is urged to reform its social security system in order to strengthen its competitiveness and to ensure the long-term sustainability of its public finances. As stated above, the recent reforms in Belgium with respect to the pension and unemployment system are examples of this increased impact.
However, we have to emphasize that the European Union does not have comprehensive legislative competences in the field of social security and that it cannot (or only limitedly) change the social security legislation of the member states by means of directives or regulations. In any case, the recommendations of the Commission and the Council will have to be implemented by national law. When altering national legislation, the legislator will have to respect the guarantees under Article 23, Articles 10 and 11, and the right to property under Article 1 Protocol no. 1 ECHR (and possibly Article 16 of the Belgian Constitution). As the Constitutional Court can test the validity of legislation with regard to these rights, they can be important guiding principles for the legislator when altering social security legislation. Especially the principle of standstill can play an important role in assessing the validity of detrimental changes in national social security legislation. As the principle of standstill prohibits the national legislator to diminish the protection which existed at the time when Article 23 and the right to social security came into force in a considerable way.

6. CONCLUSION
As from 1994, Belgium has its own federal right to social security, which is included in Article 23 of the Belgian Constitution. Because of the lack of clarity by the constitutional legislator regarding the scope and contents of the right to social security, the Belgian Constitutional Court and the doctrine had to interpret this new-born right. As the Court seems to acknowledge a large discretion to the legislator in defining the specific content of the right to social security, the protection of this right appears rather limited. Secondly, the fact that the right to social security in Article 23 does not have direct effect, seems to restrict the application of this Article even further. Nevertheless, the right to social security entails a standstill-principle which means that the legislator cannot diminish the level of protection that existed at the time Article 23 came into force in a considerable way.
The right to social security hence requires the legislator to motivate possible changes and to make sure that these changes respect the guarantees provided in the Constitution. Article 23 can thus be seen as a “buffef’, but it still allows the legislator to reform or alter the national social security system in case of economic problems. It also allows him to ensure the sustainability of the national system.
Not only Article 23 can protect social security claims, the prohibition of discrimination in Articles 10 and 11 too provide some protection by laying down a duty for the legislator not to discriminate, also with regard to social security rights. The right to property in Article 1 Protocol no. 1 ECHR provides a third judicial safeguard, however it remains unclear whether Article 16 of the Belgian Constitution can be invoked in social security claims.
From the previous chapters, it has become clear that the protection of social security is layered and guaranteed through different constitutional guarantees. Whilst still leaving ample leeway for reform, the different constitutional guarantees do seem to provide for some protection against social regress and the rollback of social expenses and benefits.