España
THE RIGHT TO SOCIAL SECURITY UNDER THE SPANISH CONSTITUTIONAL SYSTEM
Luis Jimena Quesada
1. THE SPANISH SOCIAL SECURITY MODEL: CONSTITUTIONAL FRAMEWORK
1.1. Brief reference to social security before the current 1978 Constitution
The so-called “social constitutionalism”, which implies the recognition of a catalogue of social rights, was first introduced in Spain through the 1931 Constitution, approved in the Second Republic. From this point of view, it is futile any attempt to find a reference, explicit or implicit, to the right to social security in previous Spanish constitutional texts[1]. In particular, Article 46§2 of the 1931 Constitution recognised the right to social security by stating that “the Republic ensures every worker the necessary conditions for a dignified existence. Its social legislation regulates the cases of sickness, accident, unemployment, retirement, disability and death; (...) the conditions of Spanish workers abroad (...)”[2].
In connection with the right to social security, Article 43§5 of the 1931 Constitution also provided that “the State shall assist the sick and elderly, and protect motherhood and childhood, endorsing the 'Geneva Declaration' of children's rights”. Due to the limited scope of international commitments in such period, before the birth of International Human Rights Law after World War II, this opening to international rules in Article 43§5 in fine, by reference to the protection of children[3], appears reasonably unique. In addition, it implied a specific clause that complemented the more general reference to “international social treaties” in Article 15§1 of the 1931 Constitution.
Afterwards, in the context of the isolation of the Franco regime and the paternalism of the dictatorship[4], the system of Fundamental Laws formally assumed similar social protection clauses[5], but without any reference to international standards. This observation is considerably significant, since the development of the right to social security within the current constitutional system, established in 1978, has been achieved in parallel to the progressive incorporation of international legal standars into the Spanish legal system.
1.2. Constitutional principles governing the right to social security under the current 1978 Constitution
The main provision recognising the right to social security lies in Article 41 of the current 1978 Constitution[6], according to which “ public authorities shall maintain a public Social Security system for all citizens guaranteeing adequate social assistance and benefits in situations of hardship, especially in case of unemployment. Supplementary assistance and benefits shall be optional”.
This provision is complemented by other relevant constitutional provisions (in particular: Articles 25, 39, 43, 49 and 50, infra) and legally implemented and developed through national legislation (most notably the Social Security General Act of 1994, which repealed most provisions from the previous Social Security Act of 1974) as well as through national pacts (especially, the so-call “Toledo Pact” of 1994). The constitutional principles governing the right to social security derive to a great extent from this normative framework. Which are those main principles? Allow me tointroduce a kind of constitutional Decalogue of principles concerning the right to social security[7].
First of all, Article 41 expresses the principle of “constitutional flexibility” in delimitating the Social Security System. The emphasis might be put on public or private choices, on contributory or non-contributory levels, depending on the Government and the majority in Parliament[8]. This is also the expression of the Spanish constitutional mix model of “social market economy”[9]. Secondly, it is relevant to outline the principle of “publicity” or “public character” of the Social Security System must be ensured (according to national case-law: e.g., Judgment No. 103/1983, 22 November 1983)[10]. Thirdly, in connection with the previous one, the principle of “universality”, which involves the maximum coverage of the protective action, should be remarked. Fourthly, the principle of “sufficiency”, which integrates the guarantee and the improvement of the levels of well-being through appropriate benefits, appears closely connected to the idea of public character. Fifthly, the principle of “state sustainability” or “General Fund”, according to with the State is the sole owner of all Social Security resources, obligations and benefits, without prejudice of the competences under the jurisdiction of Autonomous Communities, must be also outlined in connection with the principle aboved mentioned of “public character”.
Sixthly, as a result of the principles of “universality” and “state sustainability”, the principle of “equality of rights” plays an important role both from a substantial perspective[11] and from the context of the Spanish dentralised territorial configuration (irrespective of the time and place of residence of the insured person)[12]. Seventhly, the principle of “necessity” incorporates a broader protection action than the notion of social risk and contingency, since it goes beyond them by allowing protection of any social need of a person, regardless of any origin or cause[13]. Eigthly, the principle of “contribute fairness” implies proportionality between the amount received and the amount contributed. For its part, the principle of “intergenerational solidarity” means that while we are working we make contributions to fund current pensions. Finally, the importance of the principle of complementarity (between public - contributory or not – and private actions) has been amplified in the context of the economic crisis and privatisation winds.
2. THE IMPACT OF CONSTITUTIONAL SOCIAL SECURITY PROVISIONS IN ESTABLISHING THE DOMESTIC LEGAL SYSTEM
2.1. Incorporation of international standards
First of all, at the universal level, Spain was consistent with the idea of indivisibility by ratifying both the 1966 International Covenant on Economic, Social and Cultural Rights, which recognises the right to social security in Articles 9 and 10, together with the 1966 International Covenant on Civil and Political Rights in April 1977, that is to say during the transition to democracy which announced the international opening; later reflected in Articles 10.2 and 93-96 of the 1978 Spanish Constitution. Furthermore, Spain was, in consistency with the idea that mere recognition of human rights without concrete guarantees rest meaningless, the first European country having accepted the 2008 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights establishing a procedure for individual communications[14].
On the other hand, Spain may be defined as a “leader country” in ratifying ILO instruments, which amount to 133, including the 1952 Convention (No. 102) on Social Security (Minimum Standards)[15]. However, this formal rate of ratification does not necessary imply that these universal social security standards are fully respected in practice. In such sense, in the field of social security, Spain has excluded the acceptance of an important number of significant ILO conventions which paradoxically develop substantial provisions of Convention No. 102[16].
At European level, in particular in relation to the Council of Europe, it must be highlighted that Spain ratified the 1961 European Social Charter in May 1980 and accepted all 72 paragraphs of the Charter[17]. Then, in January 2000 it ratified the 1988 Protocol adding new rights as well as the 1991 Protocol reforming the supervisory machinery. By contrast, Spain has signed but not yet ratified the 1996 Revised Charter and it has not yet signed nor ratified the 1995 Additional Protocol Providing for a System of Collective Complaints.
In spite of these European “social debts”, which show an unacceptable asymmetry between European countries[18], inconsistent with the principle of indivisibility, the operation of the original reporting system has made possible a fruitful supervision by the European Committee of Social Rights (see below, in Section 4, the progress achieved in the implementation of social security rights under the Social Charter). Moreover, the action of the Committee in relation to Spain has produced a positive inter-action of the Social Charter with other ILO instruments (e.g. Convention No. 102) or Council of Europe treaties (e.g. European Code of Social Security)[19]. Of course, these synergies should be guided by the principle of “favor libertatis” or most favourable in case of eventual divergent parameters, as imposed by Article 32 of the Social Charter (Article H of the Revised Charter).
At the same time, it is certain that the European Union Law has also had a clear impact on social security rights at domestic level since the accession of Spain to the European Communities in 1986. Apart from non-binding acts, the EU social security law has been developed through significant regulations and directives. In particular, as well known, on the basis of the initial coordination of social security systems under the Council Regulation (EEC) No. 1408/71, which guaranteed equal treatment and social security benefits to all workers who are Member State nationals, regardless of their place of employment or residence, the current Regulation (EC) No. 883/2004 of the European Parliament and of the Council of 29 April, which applies to all traditional branches of social security,[20] has developed the basic principles[21].
For its part, the EU Court of Justice has also developed and nuanced these principles, especially in relation to the principle of equal treatment as well as the personal scope of application[22], and also involving Spain in some cases (see Section 4, infra). Unfortunately, the synergies between Council of Europe and EU standards in the field of social security are not always fluid, since, on the one hand, the European Committee of Social Rights has not accepted the so-called “Bosphorus doctrine” of the European Court of Human Rights[23] concerning social issues[24] and, on the other hand, has logically tackled the personal scope of application of the Social Charter in a different way, mainly in comparison with the idea of EU citizenship[25].
2.2. Configuration and articulation of national legal provisions concerning the Social Security model
The Social Security model that the 1978 Constitution sets forth on the basis of Article 4, considered to be the expression of the “social and democratic State, subject to the rule of law, which advocates freedom, justice, equality and political pluralism as highest values of its legal system” established in Article 1, is shaped by other two constitutional provisions concerning the configuration and articulation of the Social Security model: through, respectively, participation of the persons concerned (Article 129.1) as well as participation of regional entities (Article 149.1.17).
According to Article 129.1 of the Spanish Constitution: “the law shall establish the forms of participation of the persons concerned in Social Security and in the activities of those public bodies whose operation directly affects quality of life or general welfare”. In truth, the main pillars of this constitutional participation have been integated, instead of by elements derived directly from the civil society, by the so-called “Toledo Pact” (from political or parliamentarian actors) and by the “Social Agreement on development and tendencies of the Social Security System” (from social partners).
The Toledo Pact, inspired by other international sources, including some recommendations made by the World Bank and the 1993 Delor’s White Paper[26], intended to face the problems of funding the Social Security and its future development to plan ahead for the actions that should be adopted in order to prevent the increase in the public deficit, as a result of the increased benefit payments and, in particular, the retirement pensions. With such spirit, and especially with the idea of not using retirement pensions as an electoral weapon, the Toledo Pact was approved by the Spanish lower house (Congress of Deputies) on 6 April 1995; being its main purpose “to guarantee a future public pension system that is fair, balanced and shared, in accordance with the principles contained in Article 41 of the Spanish Constitution”.
It is worth highlighting that some of the recommendations included in the Toledo Pact have been reflected in the 1994 current Social Security Act and its main amendments[27]. Furthermore, a non-permanent commission was set up to assess the results achieved in implementing the adopted recommendations and to study, according to such results, its future development within the criteria of stability, sustainability and equality of benefits for the whole of Spain; enabling the continuity in the improvement in the welfare of pensioners, with a particular focus on smaller pensions, to be guaranteed. On 2 October 2003, the Congress of Deputies adopted new recommendations on substantial issues that have also implied relevant legislative changes[28].
In the same line, on 13 July 2006 the aforementioned Social Agreement was adopted by the Government and the more representative social partners which, together with the priorities set out by the Toledo Pact in 2003, led to the adoption of Law 40/2007, of 4 December, on urgent Social Security measures. This Law improved both the principle of solidarity and guarantee of sufficiency, through the gradual improvement and expansion of the protective intensity as well as the strengthening of the general fund, and the principle of contributive fairness of the system, providing greater proportionality between the contributions made and the benefits received and, at the same time, encouraging the voluntary extension of working life beyond the legal retirement age and alleviating the negative consequences experienced by older workers prematurely forced out of the labour market[29]. Then, without special controversy, the parliamentarian committee of the Toledo Pact negotiated the adoption of Law 27/2011, 1 August 2011, regarding the updating, improvement and modernization of the Social Security System. It also introduced some adjustements concerning the parameters of some social security benefits, especially affecting the scope of retirement pension, in view of the recent challenges of demographic and economic factors that had been observed in countries in the vicinity of the EU[30].
Nevertheless, the guiding principles of fairness and contributory nature of the Social Security System, highlighted in the 1995 Toledo Pact and in the 2006 Social Agreement[31], according to the new circumstances related to the goal of modernizing the system (based on tackling new circumstances such as an ageing population, phenomenon of immigration and harmonisation of criteria in the sphere of the EU), have been precisely submitted to fluctuations in the case of pension schemes, derived from different electoral winds and political colours, which has been accentuated in the context of the global financial and economic crisis.
In this scenario, the current Government, with Prime Minister Rajoy since November 2011, adopted, on the one hand, the Organic Law 2/2012, 27 April 2012, on Budgetary Stability and Fiscal Sustainability, which reviewed the terms and conditions of the pension system provided in Law 27/2011. On the other hand, it appointed a Committee of Experts, composed of twelve “wise” people, which issed in June 2013 a controversial report, under the guiding principles of the Toledo Pact, on the sustainability factor of pensions[32]. This latter report has become Law 23/2013, 23 December 2013, regulating the Sustainability Factor and the Revalutation Index of the Social Security Pensions System.
Furthermore, Article 149.1.17 of the Spanish Constitution declares that the State shall have exclusive competence over “basic legislation and financial system of Social Security, without prejudice to the implementation of its services by the Autonomous Communities”. Indeed, if at state level the aim of guaranteeing the financial system of Social Security; in particular, guaranteeing the financial sustainability of the pension system, is already complex and controversial, the competences of implementation in the hands of the Autonomous Communities in this field have increased even further the level of complexity and controversy.
In fact, the uneasy coexistence of different Spanish Regional Finance Systems, set forth in the Spanish Constitution as a “fruit” of the constitutional consensus,[33] has become even more difficult in the recent years as a result of the last major reforms of several Statutes of Autonomy, the so-called “new Statutes”, since they have implied far-reaching reforms. Such major reforms include, for the first time into the Spanish legal order, not only a catalogue of human rights (in particular, social rights as an expression of some social policies under the jurisdiction of Autonomous Communities), but also the particularities in the management of certain aspects specifically concerning the right to social security. These are the lights and shadows of the multi-level protection of human rights.
The first example of such tendency to create regional catalogues of social rights has been provided by the new Valencian Statute of Autonomy, approved by the Organic Act No. 1/2006, 10 April 2006 and validated by the Spanish Constitutional Court by Judgment No. 247/2007, 17 December 2007. Consequently, the experience was followed with different levels of intensity by other Fundamental Regional Laws[34]. On the other hand, the way the Autonomous Communities have developed in their new Status the regional competence to implement the state basic legislation and financial system of Social Security has also been validated, in general terms, by the Constitutional Jurisdiction (see Judgment No. 31/2010, 28 June 2010, concerning the Statute of Catalonia). On the contrary, the Constitutional Court has repealed secondary regional legislation on social security matters invading the sphere of state competence[35] and, correlatively, has also repealed secondary state legislation which implied the blocking of the exercise of regional competence[36].
3. PERSONAL AND MATERIAL SCOPE OF SOCIAL SECURITY RIGHTS GUARANTEED BY THE SPANISH CONSTITUTION
A first approach to the personal and material scope of social security rights derives from several constitutional provisions connected with Article 41. A first one is Article 25.2, which states that a person sentenced to prison shall in any case be entitled “to paid work and to the appropriate Social Security benefits, as well as to access to cultural opportunities and the overall development of his or her personality”. Moreover, four other constitutional provisions complete the personal and material scope of social security benefits: the family protection benefit (Article 39); the health protection (Article 43); the treatment and rehabilitation of physically disabled persons (Article 49), and the financial sufficiency of citizens during old age, through adequate and periodically updated pensions (Article 50).
The constitutional mandate introduced by Article 41, in conjunction with the other above mentioned provisions, means that the protective action of the Spanish Social Security System is currently based on a comprehensive and universal protection model that includes: pharmaceutical-health care, family protection, social services and, in certain cases, unemployment benefit. All citizens can access this protection, under identical terms, irrespective of whether or not they have made contributions to the Social Security System. Such protection is completed, on the one hand, by a financial benefits system which, in a harmonious and differentiated manner is included in the contributory level with proportionality between salary-contributions and benefits, and, on the other hand, by the non-contributory level aimed at providing compensation income for basic needs to those citizens who, finding themselves in a situation of need, are unable to access the contributory model.
The most important development of the non-contributory model was achieved by the 1990 Non-Contributory Benefits Act, which introduced three concrete benefits: in cases of retirement, disability and family benefits for dependent children. Then, this Act was integrated and consolidated into the current 1994 General Social Security Act. Thus, the State guarantees their protection “either for carrying out a professional activity, or for meeting the requirements at the non-contributory level” (Art. 2 of the 1994 Act). There is, therefore, a two-tier level of protection: contributory (occupational) and non-contributory (welfare).
It is in Article 7 of the 1994 Act where the personal scope of application of the Social Security System is set out in a more detailed way. On the one hand, the contributory level refers to Spanish citizens residing in Spain and foreign citizens residing legally in Spain[37], providing that they are carrying out an activity in national territory and are included: in particular, employed workers, self-employed workers over the age of 18, worker-members of Associated Work Cooperatives; students and civil servants or military personnel. On the other hand, with regard to the non-contributory level, Article 7 mentions “Spanish citizens residing in national territory” and places “Hispanic-American, Portuguese, Brazilian, Andorran and Philippine citizens residing in Spanish territory" on an equivalent level; citizens from other countries will be subject to the provisions of the Treaties, Agreements, Pacts, etc., or will be dealt with according to the principle of reciprocity, implicitly or explicitly recognised.
The complexity of the system particularly affects the non-contributory level, since the basic state competence on social security matters (Article 149.1.17) has to be conciliated with the competences that the Autonomous Communities “may assume”, in particular in matters of “social assistance” (Article 148.20 of the Spanish Constitution)[38]. Therefore, the difference between what is basic and complementary moves in a thin line. As a matter of fact, the differences between Autonomous Communities concerning the levels of social assistance and the eligibility criteria have been found contrary to Article 13 of the Social Charter (see below, Section 4), even if in theory foreign residents are entitled to social and medical assistance under the same conditions as Spanish nationals (Articles 12 and 14 of Organic Act No. 4/2000, 11 January 2000, as amended by the Organic Act No. 2/2009, 11 December 2009)[39].
In addition to these two public and compulsory levels (contributory and non-contributory) there is, in line with Article 41 of the Constitution, a third level, which is optional and consists primarily of Social Welfare Organisations and Pension Funds. For different reasons, these two options have been increasingly emphasised in the context of the economic crisis: the first one, certainly, by balancing anti-privatisation movements, whereas the second one, obviously, by the growth of the privatisation tendences. Once again, concerning the social welfare services, some controversies between the State and the Autonomous Communities have arise, since all regions have adopted their own Social Services Act and, in parallel, the State has adopted a kind of general framework law in 1996 (Act No. 39/2006, 14 December 2006, on Dependency)[40].
4. CONSTITUTIONAL GUARANTEES OF SOCIAL SECURITY RIGHTS
4.1. The important role played by the Spanish Constitutional Court
The supreme guardian of the Spanish Constitution has designed its main jurisprudential trends in the field of social security rights through both general procedures: the constitutionality of the state or regional legislation as well as the conflicts of competences between territorial levels, and the individual procedures: the so-called “amparo” appeal. Through the first type of procedures the Constitutional Court, apart from previous leading cases dealing with equality in the access to social security rights (e.g., Judgment No. 103/1983, 22 November 1983)[41], has certainly assessed the legislative amendments adopted in the context of the economic crisis (e.g., Judgment No. 83/2014, 29 May 2014)[42].
The individual approach to social security rights has logically focused on the fundamental rights, in Articles 14 to 30 of the Spanish Constitution, mostly civil and political rights, apart from the non-discimination clause of Article 14, which can be invoked be means of the individual amparo appeal. In other words, the Constitutional Jurisdiction has been unable to proceed to a direct protection of the right to social security set forth in Article 41 of the Constitution or even through the protection of property recognised in Article 33 (unlike the European Court of Strasburg - Article 1 of Protocol No. 1), since both provisions are formally excluded from the amparo procedure.
Taking this into account, the Constitutional Court has developed the technique of indirect protection of social security rights, especially in connection with the principle of non-discrimination (Article 14) and the due process of law (Article 24 of the Spanish Constitution). With this premise, in Judgment No. 49/2005, 14 March 2005, the Constitutional Court declared a violation of Article 14 based on the ground that, in the 1995 Worker’s Statute, “what does not appear justified is that a difference of treatment is established between full-time and part-time workers in meeting the requirement of lack of access to contributory social security benefits”; therefore, this differentiation is “arbitrary and also leads to a disproportionate result” affecting part-time worker and, in addition, it “involves indirect sex discrimination because the regulation predominantly affects women workers”[43].
On the other hand, the other technique through Article 24 of the Spanish Constitution is illustrated by Judgment No. 95/2000, 10 April 2000. The Constitutional Court declared a violation of Article 24 on the ground that the denial, by Social Security Administration and a Spanish Labour Court, of the right to be beneficiry of healh care in the framework of the Spanish Social Security System, stablished by Articles 41 -social security- and 43 -protection of healh-, affecting the partner’s applicant (a Romanian national) was unreasonable. Therefore, the contested judicial decision “ignored the existence of and earlier (administrative) court decision that had provisionally exempted his partner visa requirements for obtaining the residence permit”; and, consequently, that resolution provided for legality of stay in Spain and “should have been the criterion used to access the requested benefit”[44].
4.2. The opening to social security international standards
In consistency with Section 2.1 (supra), it is relevant to explain the positive impact that in Spain have the supervisory bodies which ensure the effectiveness of the social security rights set forth in insternational treaties, by focusing on the judicial ones at the Council of Europe (European Committee of Social Rights and European Court of Human Rights) and the EU (Court of Justice) levels.
Concerning the European Social Charter, the European Committee of Social Righs has turned it into a living instrument in Spain regarding a wide range of relevant social security issues. As a starting point, it is worthwhile to recall the adoption of the Worker’s Statute (10 March 1980) in view of Spain’s ratification of the Charter. Then, in the framework of the reporting system, several examples may illustrate the progress achieved in the implementation of social rights under the Charter. Firstly, apart from connecting aspects such as the prohibition of dismissal during pregnancy (Act No. 33/1999, 5 November 1999, on Promotion of Conciliation of Family and Professional Life) or the entitlement of domestic worker to time off for breastfeeding (Royal Decree No. 1620/2011, 14 November 2011), Spain has improved, in the field of social protection, the social security coverage for self-employed (Royal Decree-Law No. 2/2003, 25 April 2003, and Royal Decret No. 1273/2003, 10 October 2003) and it has also extended the payment of old-age, invalidity and famility to all citizens concerned in cases where they have insufficient means (the above mentioned Act No. 26/1990, 20 December 1990, on Non-Contributory Pensions).
Nonetheless, the Committee has declared or even reiterated in its most recent conclusions concerning Spain[45] that there have been significant breaches of the Social Charter in the field of social security rights to be remedied. Firstly, the Committee has considered that the denial of access to health care for adult foreigners (aged over 18 years) present in the country irregularly[46] is contrary to Article 11 of the Charter. Secondly, the Committee has stated that the right to social security has been violated on different grounds: the minimum level of sickness benefit is manifestly inadequate (Article 12§1), equal treatment with regard to social segurity rights as well as with regard to access to family allowances is not guaranteed to national of all other States Parties, and the length of residence requirement (ten years) for entitlement to non-contributory old-age pensions is excessive (Article 12§4). Thirdly, the right to social assistance has also been declared violated on different grounds (Article 13§1): minimum income eligibility is subject to a length of residence requirement and to age requirements (25 years old), this minimum income is not paid for as long as the need persists, and the level of social assistance paid to a single person is manifestly inadequate (except for the Basque country and Navarra). Fourtly, the realisation of the right to benefit from social services (Article 14§1 and §2) is not satisfactory in relation to promotion or provision of these services; effective access, supervisory arrangements and conditions to be met by providers, as well as in relation to public participation in the establishment and maintenance of them; means of monitoring the actions of non-governmental organisations and other non-public service providers and equal access to social services provided by non-governmental organisations and other non-public service providers. And fifthly, there was a violation of Article 4 of the 1988 Additional Protocol (Article 23 of the Revised Charter, right of the elderly to social protection) due to the lack of explicit legislation protecting elderly persons from discrimination on grounds of age.
For its part, the European Court of Human Rights has also directly (through the right to property, Article 1 of Protocol No. 1) or indirectly (through Articles 6, 8 or 14 of the European Convention) tackled social security rights in relation to Spain. From the first point of view, in the case of Muñoz Díaz v. Spain (Judgment of 8 December 2009), the Court considered that the refusal to award a survivor’s pension to a Spanish Roma citizen married according to the community’s own rites and without any civil effects in Spanish law was a violation of Article 14 (non-discrimination) in conjunction with Article 1 of Protocol No. 1 (protection of property). Similarly, in the case of Manzanas Martín v. Spain (Judgment of 3 April 2012) the Court concluded that the difference between retirement pensions of Catholic priests and Evangelical ministers amounted to discrimination (once again, violation of Article 14 taken together with Article 1 of Protocol No. 1). Under the second perspective, a first case (García Mateos v. Spain, Judgment of 19 February 2013) concerned a supermarket employee who asked for a reduction in her working time because she had to look after her son who was then under six years old (violation of Article 6§1 -due process of law- combined with Article 14); and a second case (R.M.S. v. Spain, Judgment of 18 June 2013) concerned the applicant's daughter’s placement with a foster family by social services against the wishes of the applicant (violation of Article 8 – private and family life)[47].
Within the EU, the Court of Justice has contributed to consolidate the domestic legal order (the 1994 General Social Security Act) on the basis of the Social Security EU Law. For example, in case C-306/03, Salgado Alonso, Judgment of 20 January 2005[48], the Court delimitated the periods of insurance taken into account for calculating the amount of benefit, in particular the possible aggregation of periods of unemployment in a case concerning the award of a retirement pension under the Spanish legislation[49].
Finally, the Court of Justice has also developed its case-law on social security issues in relation to Spain, especially in non-discrimination cases. From this perspective, two cases may be mentioned. Firstly, in the case C-438/99, Jiménez Melgar, Judgment of 4 October 2001, the Court of Justice ruled that the dismissal of a worker on account of pregnancy constitutes direct discrimination on grounds of sex, whether her contract of employment was concluded for a fixed or an indefinite period[50]. Secondly, in the case C-13/05, Chacón Navas, Judgment of 11 July 2006, the Court of Luxembourg tackled the concept of disability (as opposed to sickness) and reached the conclusion that it “must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life”; for this reason “a person who has been dismissed by his employer solely on account of sickness does not fall within the general framework laid down for combating discrimination on grounds of disability by Council Directive 2000/78/EC of 27 Novembre 2000 establishing a general framework for equal treatment in employment and occupation”[51].
5. THE FUTURE OF SOCIAL SECURITY RIGHTS UNDER THE SPANISH CONSTITUTIONAL STANDARDS IN TIMES OF ECONOMIC CRISIS
The future of social security rights under the Spanish constitutional standards is obviously influenced by the current ecomonic crisis. Indeed, different types of secondary legal provisions developing Article 41 of the Spanish Constitution have introduced restrictive measures. For example, through Royal Decree No. 8/2010, 20 May 2010, the Spanish Government adopted extraordinary measures for the reduction of public deficit. On the other hand, the increase of pensions was suspended for the year 2011. For its part, the Spanish Parliament, through Law 39/2010, 22 December 2010, on the general budgets of the state for 2011, introduced restrictive amendments to the social security contributions.
The evolution of the Spanish legal order in this field (Law 27/2011, 1 August 2011, on updating, improvement and modernization of the Social Security System, or Organic Law 2/2012, 27 April 2012, on Budgetary Stability and Fiscal Sustainability) has been completed by Law 23/2013, 23 December 2013, regulating the Sustainability Factor and the Revalutation Index of the Social Security Pensions System, which has been considered a necessary reform, with its lights and shadows[52], but, from another perspective, criticized as implying a breakdown of political and social consensus[53].
In my view, the main concern is that economic crisis may always be overcome with financial and economic measures. By contrast, “anti-crisis” legislation may imply a profound setback for the social legal acquis and, in addition, may mean a lost and irrecoverable generation. From this perspective, the Spanish Constitutional Court has validated the recent use and abuse of urgent legislation (through Royal Decree-Law) in labour and security rights issues[54], by confirming the margin of discretion in the hands of publich authorities under the pretext of the austerity measures adopted within the EU[55].
Furthermore, the current position of the Spanish Constitutional Court has not been sensitive to European standards on national “anti-crisis” legislation affecting labour and social security rights[56]. This is a serious matter, since the synergy between national and international standards is essential in order to keep the acquis in the field of social security rights. For this reason, to conclude, Spanish authorities should be more committed in implementing the social security international standards already assumed (e.g. sensitiveness of the Constitutional Court to global judicial dialogue) as well as in incorporating the international instruments not yet accepted both at universal (ILO Conventions, such as No. 189 of 2011 on Domestic Workers) and European levels (1995 Protocol establishing a procedure of collective complaints and 1996 Revised European Social Charter. See above, Section 2.1).
[1] Before the current 1978 Constitution, Spain adopted previous constitutional texts in 1812, 1834, 1837, 1845, 1869, 1876, 1931, and during Franco’s regime (the so-called seven “Fundamental Laws”).
[2] As highlighted by TORRES DEL MORAL (Constitucionalismo hitórico español, Madrid, Universidad Complutense, 5th ed., 2004, p. 191), this last clause is similar to the wording of Article 42 of the current Spanish Constitution (“The State shall be especially concerned with safeguarding the economic and social rights of Spanish workers abroad, and shall direct its policy towards their return”).
[3] Like Article 39 of the current 1978 Spanish Constitution (“Children shall enjoy the protection provided for in the international agreements safeguarding their rights”).
[4] That means from the end of the Spanish Civil War (1936-1939) to Franco’s death (1975).
[5] In particular, the Charter of the Spaniards (Fuero de los Españoles) of 17 July 1945 included in its Article 28 a similar provision to Article 46 of the 1931 Constitution, by stating that “the Spanish State guarantees workers safe protection in case of misfortune and recognizes their right to assistance in cases of retirement, death, sickness, maternity, occupational accidents, disability, unemployment and other risks that may be subject to social insurance”. Earlier, the Labour Law (Fuero del Trabajo) of 9 March 1938 (still during the Civil War) had established a similar provision of social protection (clause X), with special reference to the social security benefits of the elderly: “1. Workers shall be provided with safe protection in case of misfortune. 2. Social insurance concerning retirement, disability, maternity, occupational accidents and diseases, tuberculosis and unemployment, will be increased in order to achieve the implementation of a full insurance. Old workers shall be primarily protected with a sufficient retirement”.
[6] A general view in SÁNCHEZ-URÁN, Y., Seguridad Social y Constitución, Madrid, Civitas, 1995.
[7] An interesting summary of some of these constitutional principles in GARCÍA ROCA, J., Constitutional Principles regarding the Spanish Social Security System: A Citizen’s Right”, Revista de Derecho Político, No. 89, 2014, pp. 65-90.
[8] See VIDA SORIA, J., “Artículo 41. Seguridad Social” in ALZAGA VILLAAMIL, O. (ed.): Comentarios a la Constitución española de 1978, Madrid, Cortes Generales-Editoriales de Derecho Reunidas, 1983, pp. 112, and MONEREO PÉREZ, J.L., “El derecho a la Seguridad Social”, in MONEREO PÉREZ, J.L. et alii (eds.): Comentario a la Constitución socioeconómica de España, Granada, Comares, 2002, p. 1441.
[9] Among others, see ARAGON REYES, M., Libertades económicas y Estado social, Madrid, McGraw Hill, 1995, and BASSOLS COMA, M., Constitución y Sistema económico, Mardrid, Tecnos, 1985.
[10] In Judgment No. 103/1983, the Constitutional Court stated (paragraph 6) that the right set forth in Article 41 is a constitutional minimum guarantee. The Parliament may, according to motivations of legal and social policy, extend the scope of protection” of social security rights. See extensively, for a summary of the constitutional case-law, GONZÁLEZ ÓRTEGA, S., “Los principios caracterizadores del sistema de Seguridad Social en la jurisprudencia del Tribunal Constitucional”, in VII Jornadas Universitarias Andaluzas de Derecho del Trabajo y Relaciones Laborales, Sevilla, Consejo Andaluz de Relaciones Laborales, 1991, pp. 326-357.
[11] E.g. Organic Law 3/2007, 22 March 2007, on Effective Equality for Women and Men has created the paternity benefit. With the paternity benefit, the protected situations are considered to be (childbirth, adoption; whether pre-adoptive, permanent or simple, in accordance with the Civil Code or the governing civil laws in the Autonomous Communities, providing that, in this latter case it is not for less than one year, and although said foster care may be temporary, for the periods of leave that are legally taken by workers for these situations.
[12] See also Judgments of the Constitutional Court No. 40/2014 (11 March 2014), No. 44/2014 (7 April 2014), No. 45/2014 (7 April 2014), No. 51/2014 (7 April 2014) and No. 60/2014 (5 May 2014): the diversity of regional laws of partners is under the jurisdiction of Autonomous Communities (their own regional civil law) and is compatible with the state conditions to ensure equal access to a benefit of the Social Security System (survivor’s pensions within and outside marriage).
[13] PALOMEQUE, M.C., “Los derechos de la Seguridad Social y a la salud en la Constitución”, in Derecho del Trabajo y de la Seguridad Social en la Constitución, Madrid, Centro de Estudios Constitucionales, 1980, p. 327.
[14] It was the third one in accepting this Protocol (the two first countries were Ecuador and Mongolia). The Protocol entered into force on 5 May 2013 after ten ratifications (the tenth one was provided by Uruguay).
[15] Ratified by Spain in June 1988. It accepted Parts II to IV and VI.
[16] E.g., among others, 1962 Convention (No. 118) on Equality of Treatment (Social Security); 1964 Convention (No. 121) on Employment Injury Benefits; 1967 Convention (No. 128) on Invalidity Old-Age and Survivors’ Benefits; 1969 Convention (No. 130) on Medical Care and Sickness Benefits; 1974 Convention (No. 139) on Occupational Cancer; 1975 Convention (No. 143, Supplementary Provisions) on Migrant Workers; 1985 Convention (No. 161) on Occupational Health Services; 1988 Convention (No. 167) on Safety and Health in Construction; 1988 Convention (No. 168) on Employment Promotion and Protection against Unemployment; 1990 Convention (No. 171) on Night Work; 1993 Convention (No. 174) on Prevention of Major Industrial Accidents; 1994 Convention (No. 175) on Part-Time Work; 1996 Convention (No. 177) on Home Work; 1996 Convention (No. 178) on Labour Inspection (Seafarers); 2000 Convention (No. 183) on Maternity Protection; 2001 Convention (No. 184) on Safety and Health in Agriculture; 2007 Convention (No. 188) on Work in Fishing, and 2011 Convention (No. 189) on Domestic Workers.
[17] On 4 April 1990 Spain denounced Article 8§4b of the Social Charter (prohibition of the employment of women in certain dangerous occupations).
[18] At present, among the 47 member States of the Council of Europe, 43 have accepted (the only 4 States of the Organisation not having accepted it being Liechtenstein, Monaco, San Marino and Switzerland) the Social Charter (and, therefore, its mandatory reporting system), 10 are bound by the 1961 original Charter and 33 by the 1996 revised Charter. And only 15 have accepted the collective complaints procedure.
[19] An illustration of this synergy in Conclusions XX-2, Spain (2013, published in January 2014): Article 12 - Right to social security, paragraph 2 - Maintenance of a social security system at a satisfactory level at least equal to that necessary for the ratification of the International Labour Convention No. 102. “The Committee takes note of the information contained in the report submitted by Spain. Spain has ratified the European Code of Social Security and its Protocol on 8 March 1994 and has accepted parts I-VI, VIII, IX, XI, XII, XIII, IX, and XIV of the Code. The Committee notes from Resolution CM/ResCSS(2012) 15 of the Committee of Ministers on the application of the European Code of Social Security and its Protocol by Spain (period from 1 July 2010 to 30 June 2011) that the law and practice in Spain continue to give full effect to the parts of the Code which have been accepted, as amended by the Protocol. In so doing, Spain maintains a social security system that meets the requirements of ILO Convention No. 102. Conclusion. The Committee concludes that the situation in Spain is in conformity with Article 12§2 of the 1961 Charter”.
[20] The coverage includes sickness, maternity, accidents at work, occupational diseases, invalidity benefits, unemployment benefits, family benefits, retirement and pre-retirement benefits, and death grants.
[21] Which basically means the compatibility between coordination and margin of discretion (determination at national level, depending on the traditions and culture of each country, of the social benefits and the conditions under which they are granted), without forgetting the core principle to guarantee the right to free movement of persons in the EU and the principle of the aggregation of periods. Regulation (EC) No. 883/2004 has specifically been amended by Regulation (EC) No. 988/2009 (OJ L 284 of 30 October 2009), Regulation (EC) No. 1231/2010 (OL L 344 of 29 December 2010) and Regulation (EU) No. 465/2012 (OJ L 149 of 8 June 2012). Moreover, Regulation (EC) No. 987/2009 (OJ L 284 of 30 October 2009 laying down the procedure for implementing Regulation (EC) No. 883/2004 has relevance for the EEA and for Switzerland.
[22] Regulation (EC) No. 883/2004 applies to all nationals of an EU country who are or who have been covered by the social security legislation of one of those countries, as well as to the members of their family and their survivors. It also applies to third country nationals living legally in the EU and whose situation connects them to several Member States. The Regulation also applies to members of their families and their survivors. According to the principle of equal treatment, nationals of an EU country and persons residing in that country without being nationals of it are equal in terms of the rights and obligations provided for by the national legislation. In practice, however, the concrete determination of the applicable is complex when, for example, involving certain categories of workers (civil servants, workers who are employed or self-employed in several EU countries, frontier workers, etc.), benefits in kind (sickness, maternity and paternity) or special non-contributory benefits.
[23] See case of Bosphorus Hava Yollari Tutizim ve Ticaret Anoniom Sirketi v. Ireland, Judgment of 30 June 2005.
[24] Indeed, the Committee has not accepted a general presumption of compatibility between social standards of EU law and the Social Charter. Such issue has been hold by the ECSR in controversial areas such as organisation of working time (e.g. Decision on the merits of 23 June 2010 on Complaint No. 55/2009, Confédération Générale du Travail v. France, §§31-42.) or delocalisation of undertakings and social dumping (E.g. Decision on admissibility and the merits on Complaint No. 85/2012, Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden), §§72-74).
[25] From this last perspective, in the last conclusions of the Committee (2013, published in January 2014), with respect to coordination of social security for persons who move between the States Parties (Article 12§4) a very large number of States Parties do not comply with the requirements of the Charter (21 out of 26 countries examined). While the situation between EU member states concerning equal treatment as well as maintenance of accrued rights (for example the export of old-age pensions) and accruing rights (for example the taking into account of employment periods completed in other countries for the calculation of benefits) is satisfactory on the basis of EU law, the necessary multi- or bilateral agreements to ensure these principles have not been concluded between EU member states, on the one hand, and the non-EU states, on the other hand, nor among the non-EU states which are bound by the Charter.
[26] Growth, competitiveness, employment. The challenges and ways forward into the 21st century. White Paper [COM(93) 700, 5 December 1993, Commission of the European Communities, Bulletin of the European Communities, Supplement 6/1993, Luxembourg, 1993, p. 139: “The objective being to reduce labour costs the reduction could differ from one Member State to another depending on the extent to which it is applied to employers social security contributions and/or employees' social security contributions and/or to taxes levied directly on wages. Social security contributions themselves are sometimes divided up according to the various objectives involved: family, health old age, unemployment. In these cases, the reduction could relate primarily to contributions which finance expenditure normally pertaining to national solidarity: family allowances, the minimum old-age pension, serious illnesses, or long-term unemployment. In the case of schemes in which the benefits are more directly related to the contributions (e.g. retirement pensions), it is for each Member State to determine the respective proportions of compulsory and voluntary contributions to be paid under insurance schemes or savings arrangements”.
[27] For example, strengthening of the principle of solidarity, insofar as the financial situation allows, adopting measures such as the increase in the maximum age for continuing to receive the orphan´s pension or the improvement in widowhood pension in the case of lower incomes.
[28] Among these proposals having become formal legislative acts, the following ones: 1) The advisability of examining the situation of workers affected by modern methods of work organisation, in particular with regard to the expansion of part-time work, the incidence of temporary employment and the possibilities of making wages and pensions consistent; 2) To study mechanisms that include periods of care and support of children or dependent people as “elements to consider in contribution histories”; 3) To set up an integrated system that tackles the phenomenon of dependency from a global perspective; 4) To give special consideration to people with physical, psychological or sensory disabilities; 5) To adopt the measures needed to guarantee the inclusion of citizens from other countries into the social protection system with full rights and obligations.
[29] However, the consensus expressed by this Agreement had a restrictive background in the access to pension schemes: see GARCÍA NINET, J.I., “Comentarios breves al Acuerdo sobre medidas en material de Seguridad Social”, Revista General de Derecho del Trabajo y de la Seguridad Social, No. 12, 2006, p. 5.
[30] See CONDE-RUIZ, J. I. and GONZÁLEZ, C.I., “Reforma de pensiones 2011 en España”, Hacienda Pública Española/Review of Public Economics, No. 204, 2013, pp. 9-44.
[31] Strengthening the validity of these principles in such a way that, without prejudice to the principle of solidarity and in a gradual way, benefits are more proportional to the amount of contributions made.
[32] The report calls for maintaining the general principles of the Spanish Social Security System, that is, the distribution model, essentially contributory, and the intergenerational solidarity. With these premises, it proposed to introduce a sustainability factor with two components: 1) a coefficient related to the life expectancy of a worker to be entitled to a pension; 2) another one that would apply annually to reassess the pension depending on the level of expenditure and revenue of the system.
[33] See ZABALZA, A. and LÓPEZ-LABORDA, J., The Uneasy Coexistence of the Spanish Foral and Common Regional Finance Systems, Working Paper, Valencia, Instituto Valenciano de Investigaciones Económicas, February 2014 (http://www.ivie.es/downloads/docs/wpasec/wpasec-2014-02.pdf, visited on 5 September 2014)
[34] Such as the new Statutes of Autonomy of Catalonia (Organic Act No. 6/2006, 19 July 2006), Balearic Islands (Organic Act No. 1/2007, 28 February 2007), Andalusia (Organic Act No. 2/2007, 19 March 2007), Aragon (Organic Act No. 5/2007, 20 April 2007), Castile and León (Organic Act No. 14/2007, 30 November 2007) and Extremadura (Organic Act No. 1/2011, 28 January 2011).
[35] For an illustration see Judgment No. 172/1996, 31 October 1996, concerning Decree No. 307/1985, 31 October 1985, adopted by the Government of Catalonia on provisions and procedures to implement the incompatibility system of health personnel at Catalan hospitals. See also Judgment No. 39/2014, 11 March 2014, concerning Act 10/2010, 9 July 2010, adopted by the Valencian Parliament on planning and management of the Valencian public servant (in relation to enjoyment of rights in the framework of the National Social Security Scheme).
[36] E.g., Judgment No. 78/2014, 28 May 2014 (conflict of jurisdiction No. 10694/2009, promoted by the Government of Galicia against the decision of 16 July 2009 of the Directorate of Integration of Immigrants of the Spanish Government) concerning grants in aid to municipalities to develop innovative programs for immigrant integration. The regional government of Galicia challenged this decision by arguing that it invaded its competence on social assistance. In effect, the Constitutional Court ruled in favour of the regional competence, “which excludes the possibility of centralized management”. A similar solution (in favour of the regional competence in the field of social services) can be found in Judgment No. 33/2014, 27 February 2014.
[37] In this area, it is important to mention the Multilateral Ibero-American Social Security Agreement (signed on 10 November 2007), which is an instrument for coordinating the Social Security legislation on pensions of the different Ibero-American Countries that ratify the agreement and, in addition, sign the Implementation Agreement. In Spain and Bolivia, the Agreement is effective from 1 May 2011, in Brazil from 19 May 2011, in Ecuador from 20 June 2011, in Chile from 1 September 2011, in Uruguay from 1 October 2011, in Paraguay from 28 October 2011 and in El Salvador from 17 November 2012.
[38] See chapters by GIL y GIL, J. (“El derecho a la seguridad social”, pp. 1017-1072), JIMENA QUESADA, L. (“El derecho a los servicios sociales”, pp. 1487-1576) and CARMONA CUENCA, E. (“El derecho a un mínimo vital”, pp. 1577-1616), three of them in ESCOBAR ROCA, G. (dir.): Derechos sociales y tutela antidiscriminatoria, Cizur Menor, Aranzadi, 2012.
[39] See also the criterion of most favorable standard developed by the Spanish Constitutional Court Organic Law 8/2000 (Judgment No. 236/2007, 7 November 2007, on Organic Act No. 8/2000).
[40] In its Explanatory Memorandum, Act No. 39/2006 states that “if in 1978 the key elements of this model of welfare state focused, for every citizen, on health protection and social security, the social development of our country has placed from that moment onwards at a fundamenta level social services, mainly developed by the Autonomous Communities, with special collaboration of the third sector, as the fourth pillar of the welfare system, for addressing situations of dependency”. It also adds the “need to ensure” a stable framework of resources and services for the dependent persons, which now “makes the state intervene in this area in accordance with the provisions contained in this Act, which conceives it as a new form of social protection that extends and complements the protective action of the Sttate and the Social Security System”.
[41] In Judgment No. 103/1983 the Constitutional Court reapealed the provision (Article 160 of the previous 1974 General Social Security Act) establishing the entitlement to survivor’s pensions only in favour of women. The Court considered this exclusion of men from eligibility for widow’s pension was discriminatory.
[42] In Judgment No. 83/2014 the Constitutional Court has validated the social cuts in pharmaceutical-health care, since it has confirmed the constitutionality of a Royal Decree-Law on urgent measures to contain pharmaceutical expenditure and the rational use of drugs.
[43] This same doctrine was previously settled in Judgment No. 253/2004, 22 December 2004.
[44] Two other cases illustrate the potential role of Article 24: Jugment No. 304/1994, 14 November 1994 and Judgment No. 64/1996, 16 April 1996, both concerning violation of due process of law in having access to unemployment benefits.
[45] Conclusions XX-2, Spain (2013, published in January 2014).
[46] In relation to the controversial legislation the Committee noted that “an amendment in Article 1 of the said Royal Legislative Decree 16/2012 (which the report states is supplemented by Royal Decree 1192/2012), which has the effect of denying foreigners irregularly present in the country access to health care except in “special situations” (emergency resulting from serious illness or accident; care for pregnant women, both prenatal and postnatal; foreign minors aged under 18 years)”.
[47] In particular, in the case of R.M.S. v. Spain, the applicant complained that she was deprived from all contact with her daughter and observed that the administrative authorities had decided to place her daughter in foster care with a view to adoption before the domestic courts had even ruled that her daughter had been abandoned. In a more recent case (Fernández Martínez v. Spain, Judgment of 12 June 2014) the Court found no violation of Article 8: the case concerned the non-renewal of the contract of a married priest and father of five who taught Catholic religion and ethics, after he had been granted dispensation from celibacy and following an event at which he had publicly displayed his active commitment to a movement opposing Church doctrine.
[48] See LLORENTE ÁLVAREZ, A. and TRILLO GARCÍA, A.R., “Las sentencias del Tribunal de Justicia de la Unión Europea dictadas en los asuntos García Blanch (C-225/02) y Salgado Alonso (C-306/03), a propósito de la Disposición Adicional 28 de la Ley General de la Seguridad Social”, Revista del Ministerio de Trabajo e Inmigración, No. 59, 2005, pp. 225-250.
[49] Mrs Salgado Alonso, who was born on 30 May 1936, applied to INEM (National Employment Institute) on 7 August 1992 for the special unemployment allowance for unemployed persons over 52 years of age. At the time, she was able to establish actual periods of insurance of 74 months - more than six years - under German legislation, between 29 June 1964 and 30 July 1970, of 26 months under Swiss legislation, between 1 December 1971 and 31 March 1975, and 182 days under Spanish legislation, between 8 January and 7 July 1992. The Court ruled as follows: “Articles 39 EC and 42 EC and Article 45 of Council Regulation (EEC) No. 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No. 118/97 of 2 December 1996, as amended by Council Regulation (EC) No. 1606/98 of 29 June 1998, must be interpreted as not precluding a national provision, such as that set out in the 28th Additional Provision of the General Social Security Law, which does not allow the competent authorities of a Member State to take into consideration, for the purposes of acquiring the right to a retirement pension under the national scheme, certain periods of insurance completed on the territory of that State by an unemployed worker during which contributions to old-age insurance were paid by the unemployment benefit agency, such periods being taken into consideration solely for the calculation of the amount of that pension”.
[50] An important aspect of this judgment is that the Court of Justice confirmed its case-law on the direct effect of Directives, since the national court submitting the preliminary ruling pointed out that, at the time of the events in question in the main proceedings, Directive 92/85 had still not been transposed into Spanish law. In this sense, the ECJ ruled that “Article 10 of Council Directive 92/85/EEC of 19 October 1992, on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth orare breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), has direct effect and is to be interpreted to the effect that, in the absence of transposition measures taken by a Member State within the period prescribed by that directive, it confers on individuals rights on which they may rely before a national court against the authorities of that State”.
[51] In the absence of a definition in the Directive, the Court of Justice used the medical model of disability, which focuses on a person's impairment. The judgement has also been criticised for failing to refer to the social model of the disability which had been referred to in European Commission documents underpinning the Directive. See this critical approach in the commentary to this Judgment by WADDINGTON, L., in Common Market Law Review, No. 44, 2007, pp. 487-499.
[52] RAMOS, R., “The New Revaluation and Sustainability Factor of the Spanish Pension System”, Economic Bulletin, July-August 2014, Banco de España, p. 20: “The existence of floors and ceilings in the new revaluation index ensures that future pensions will not fall in nominal terms. However, by removing the link between pension revaluation and inflation, the new legislative framework does not guarantee that pensions will always maintain their purchasing power. Hence, according to how inflation moves, they could decline in value in real terms”. See also SÁNCHEZ, A. R., The automatic adjustment of pension expenditures in Spain: an evaluation of the 2013 pension reform, Working Paper No. 1420, Banco de España, 2014.
[53] TORTUERO PLAZA, J.L., “La crisis económica y la reforma del sistema de pensiones”, in GARCÍA NINEZ, J.I. (dir.): El impacto de la gran crisis mundial sobre el Derecho del Trabajo y de la Seguridad Social. Su incidencia en España, Europa y Brasil, 2008-2014, Barcelona, Ariel, 2014, p. 655-656.
[54] On the theoretical reasons to justify an “urgent need”, see CARMONA CONTRERAS, A.M., “El decreto-ley en tiempos de crisis”, Revista catalana de dret públic, No. 47, 2013, p. 1-20. This abusive use of the decree-law implies a “radical transformation of the Law sources system”, as pointed out by ÁLVAREZ CONDE, E., “El Derecho constitucional y la crisis”, Revista de Derecho Político, No. 88, 2013, p. 115.
[55] See Judgment No. 83/2014, 29 May 2014, in particular paragraph 4.
[56] E.g. in its Decision on the Merits of 23 May 2012 [Complaint No. 65/2011, General federation of employees of the national electric power corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v. Greece], the European Committee of Social Rights declared that the 2010 Greek legislation allowing dismissal without notice or compensation of employees in an open-ended contract during an initial period of twelve months is incompatible with Article 4§4 of the 1961 Charter as it excessively destabilizes the situation of those enjoying the rights enshrined in the Charter. Unfortunately, the Spanish Constitutional Court has decided to fully ignore these international parameters (whose application is imposed by Articles 10§2 and 94 to 96 of the 1978 Spanish Constitution) by not even mentioning them in its recent Judgment No. 119/2014, 16 July 2014 (appeal on unconstitutionality No. 5603/2012 against Law 3/2012, of 5 July, on urgent measures to reform the labour market). It has to be noted that one of the main grounds of unconstitutionality is precisely dealt with a new so-called contract to support entrepreneurs (similar to the Greek one, in both cases imposed by the Troika).