The Portuguese Constitutional Court case law on austerity measures: a reappraisal

Abstract

In different cases in these last years, the Portuguese Constitutional Tribunal (PCT) has reviewed the legality on some of the austerity measures agreed with (but effectively imposed by) the Trojka – the European Commission (Commission), the European Central Bank (ECB) and the International Monetary Fund (IMF) – as conditions for the release of the loan package granted to Portugal in May 2011. As it is well-known, some of those austerity measures have been declared unconstitutional. This paper tries to shed some light on a number of questions, both theoretical and practical, to which those judgments give rise. The jurisprudence of the PCT raises crucial issues which the constitutional courts of EU Member States will certainly need to address in the future: what is the boundary between judicial activism and the judicial recognition of fundamental social rights as a remedy to the legislature’s minimalism in ensuring the protection of those rights? When can legislative action, insofar as resulting from the democratic process, no longer be regarded as the best way to secure that the rights of citizens are safeguarded? To what extent can judges require the legislature to take social rights ‘seriously’? In this regard, we believe that, even though judges obviously do not create the law, they should be active – rather than activist or creative – agents of change whenever constitutional rights are put at risk by national legislation – whether or not the latter is the result of an international obligation or constraint – in order to behave as guardians of last resort for citizens’ fundamental rights.In different cases in these last years, the Portuguese Constitutional Tribunal (PCT) has reviewed the legality on some of the austerity measures agreed with (but effectively imposed by) the Trojka – the European Commission (Commission), the European Central Bank (ECB) and the International Monetary Fund (IMF) – as conditions for the release of the loan package granted to Portugal in May 2011. As it is well-known, some of those austerity measures have been declared unconstitutional. This paper tries to shed some light on a number of questions, both theoretical and practical, to which those judgments give rise. The jurisprudence of the PCT raises crucial issues which the constitutional courts of EU Member States will certainly need to address in the future: what is the boundary between judicial activism and the judicial recognition of fundamental social rights as a remedy to the legislature’s minimalism in ensuring the protection of those rights? When can legislative action, insofar as resulting from the democratic process, no longer be regarded as the best way to secure that the rights of citizens are safeguarded? To what extent can judges require the legislature to take social rights ‘seriously’? In this regard, we believe that, even though judges obviously do not create the law, they should be active – rather than activist or creative – agents of change whenever constitutional rights are put at risk by national legislation – whether or not the latter is the result of an international obligation or constraint – in order to behave as guardians of last resort for citizens’ fundamental rights.Refereed Working Papers / of international relevanc