March 10, 2015
This guest post was written by Ingrid Leijten, Ph.D. researcher and lecturer at the Leiden University Faculty of Law, Department of Constitutional and Administrative Law. See also the post she wrote for Verfassungsblog.
Over the years, the Court’s social security case law has not become much easier to understand. Meanwhile, the Court has rendered numerous judgments on a great variety of social benefits, pensions, etc., yet it is not always clear where it draws the line between ‘property’ and ‘mere hope’ to obtain a benefit (of a certain height), or between a reasonable and a disproportional interference with someone’s acquired social security rights. The social security case law of the Court remains vulnerable to criticism, not least also because of the tension inherent in the protection of ‘social’ interests under a document that is primarily ‘civil and political’ in kind.
In the recent case of Béláné Nagy v. Hungary the dissenters contend that the Court recognizes a right to obtain social security benefits under Article 1 P1, and hold that this is incompatible with this article’s object and purpose. Although it was decided by a three to four vote and hence might be referred to the Grand Chamber, the diverging conclusions of the majority and the minority make it worth discussing this case as an illuminative example of the complexity of the protection of social security interests qua property rights. After outlining the issue at stake and the findings of the Court, I will present the valid concerns of the dissenters, to argue that no matter how difficult this may be, it would be important for the Court to adopt a more transparent approach.
An excessive and disproportionate individual burden
Béláné Nagy concerned a woman who was granted a disability pension in 2001. Pursuant to a modification of the method of determining the level of disability, but apparently without any substantial change in her health, her entitlement to this pension was withdrawn in 2010. During the years thereafter, her condition was assessed as being insufficiently serious for retrieving the pension. In 2012 a new law entered into force, replacing the disability pension with a disability allowance and introducing additional eligibility criteria. Ms Béláné Nagy submitted a request for this allowance and her health condition was now considered to meet the requisite level for entitlement. However, as she had not been in receipt of a disability pension on 31 December 2011 and had not accumulated the requisite number of days covered by social security required by the new law, she did not obtain the benefit.
The ECtHR did not have temporal jurisdiction to review the 2010 withdrawal, because after the relevant authority’s decision had become final, the applicant had not complained before the Court in a timely fashion. It concludes, however, that the refusal of the new request in 2012 amounted to an ‘excessive and disproportionate individual burden’. It recognizes that States have a certain margin of appreciation in regulating citizens’ access to disability benefits, yet they cannot deprive entitlements of ‘their very essence’. Moreover, as a ‘matter of the rule of law’, the ECtHR emphasized ‘the principle of impossibilium nulla obligatio est … [since] the applicant was ex post reproached for not having made in the past sufficient contributions as determined by the new legislation—a condition she could not possibly meet’ (para. 53). This was reason to conclude on a breach of Article 1 P1.
But was there a property right to start with?
The three dissenters, Judges Keller, Spano and Kjølbro, reach the opposite conclusion. That is, they do not so much criticize the way the Court deals with the issue of proportionality, arguing that what happened was ‘reasonable’ after all, but hold that the applicant did not have a property right, which should have been reason for the Court to refrain from reviewing the issue in the first place. Since the Court could only consider the 2012 refusal under the new law, it was clear for the dissenters that at that point the applicant did not meet the relevant criteria and hence did not have a ‘possession’ that could be interfered with. Moreover, they contend that:
Article 1 of Protocol No. 1 to the Convention has never, before today, been interpreted by this Court as obliging member States to provide persons with the right to social security benefits, in the form of disability pensions, independently of their having an assertable right to such a pension under domestic law. The majority have thus expanded the scope of the right to property under the Convention in a manner that is flatly inconsistent with this Court’s case-law and the object and purpose of Article 1 of Protocol No. 1. As the right to property under the European Convention on Human Rights is not an autonomous repository for economic and social rights not granted by the member States, we respectfully dissent. (para. 1)
According to the dissenters the majority in this case for the first time holds that if someone once had a right to a disability pension, he indefinitely retains a legitimate expectation to this (or a similar) allowance, at least when his medical condition does not change. They regret that it did not do so openly, and hold that thus far, a legitimate expectation could only arise once it was ‘based on some normative legal source at domestic level that can reasonably confer a property right on him or her’ (par. 10). Moreover, they emphasize that the Court recently confirmed that there is no interference with the rights under Article 1 P1 is someone does not satisfy, or ceases to satisfy, the conditions set by national law (e.g., Richardson v. UK, para. 17; Damjanac v. Croatia, para. 86).
How exactly did the majority conclude that the applicant had a ‘legitimate expectation’? It seems that whereas the dissenters focus more exclusively on the situation concerned at the time of the request under the new law, the Court stresses the continuity of the issue by underlining the fact that the applicant’s situation was (re)assessed throughout the years, as well as the fact that she had paid contributions. Therefore, according to the Court, as of 2001, the applicant had a ‘legitimate expectation to receive a disability pension/allowance as and when her medical condition would so necessitate’. To what extent this actually implies a self-standing (prima facie) right to receive a disability allowance can be a matter of discussion. Noteworthy is in any case that the Court in this regard also refers to the ILO Convention on Social Security—while noting that it has not been ratified by Hungary or by the majority of Council of Europe Member States—‘according to which a person protected who has completed a quantifying period of three years of contribution and in respect of whom, while he or she was of working age, the prescribed yearly average number of contributions has been paid is considered to be eligible for benefits’ (para. 46). This indicates that it is willing to look beyond what is granted—strictly speaking—by the Convention, thereby perhaps recognizing a right to obtain a benefit as soon as a certain situation occurs.
Social protection under the Convention
On the basis of the dissenting opinion, it may be asked to what extent the Convention is or is not ‘an autonomous repository for economic and social rights’. Generally, there is a lot to say in favor of providing ‘essential’, or ‘minimum core’ socio-economic rights protection, i.e., of recognizing the link between basic social provisions and the Convention. (See, e.g., my article on the German right to an Existenzminimum and the possibility of minimum core socio-economic rights protection under the ECHR, forthcoming in the next issue of the German Law Journal, as well as my PhD research on ‘Core Rights and the Protection of Socio-Economic Interests by the European Court of Human Rights’) However, whereas this may suggest that a right to respect for one’s private life (Article 8 ECHR), or the prohibition of inhuman treatment (Article 3 ECHR), may translate into positive minimum guarantees in the fields of health care, social benefits, or housing, in the case of the right to the protection of property this is less obvious. After all, the phrasing of this right (‘to the peaceful enjoyment of his possessions’) requires that one can speak of a ‘proprietary interest’ (or at least a legitimate expectation) before Article 1 P1 can be taken as the starting point for deciding whether a given ‘interference’ with someone’s possessions was justified or not. As the case of Bélané Nagy once again shows, the link between property rights and social security is an intricate one, and constrains the possibilities of the ECtHR to create a right to minimum socio-economic protection under Article 1 P1.
The importance of ‘interpretation’
Did the majority provide for a sufficient explanation for why in this case review under Article 1 P1 was allowed? In my opinion, the strong dissent suggests that it did not: if the Court wants to extend its review under Article 1 P1 to ‘legitimate expectations’ not based on meeting the legal requirements set, but on previously existing rights or on the basis of a health condition in combination with the fact that contributions have been paid, it should do so in a transparent manner that clarifies in what situations this reasoning applies. Is it because an ‘essential’ or ‘core’ benefit, i.e., someone’s subsistence minimum, is at stake, or does the mere fact that contributions have been paid suffice? Or does the Court actually imply that different from in earlier case law, whenever conditions change, this by definition amounts to an interference with property rights?
One may argue that the interpretation of rights is of inferior importance and that a human rights court like the ECtHR should ultimately be guided by the severity of the situation the applicant finds him- or herself in and act accordingly, even if this requires that it skips the question whether a prima facie Convention right was actually involved or not. I do not entirely agree with this. Of course, the Court’s interpretation should leave sufficient room for providing effective rights protection, yet this does not mean that it need not be clear on this issue. A reason for this is that the Court’s jurisdiction cannot be unlimited, and especially in the context of social policy it should indeed be recognized that it is not for the Strasbourg court to always have the final say. Moreover, it is of crucial importance that the national authorities are capable, to the greatest extent possible, to protect the Convention rights on their own. This requires that they know when a planned measure interferes with an ECHR right, and that national judges are aware when they should apply the requirements of the Convention to a given issue. It may hence be hoped that in the case of Bélané Nagy the Grand Chamber on this point gets another try.