The Fundamental Rights Start with Breakfast

Introduction

The investigation project will be focused on in the area of the Social Rights (judicial regime). I will have the judicial remedies for social rights as an independent variable and the primacy of European Law above national (constitutional) law as a dependent variable.

The research question is “Does the European Union Charter of Fundamental Rights finish with the differences on national judicial regime of the fundamental rights (are the civil, cultural and social rights now only fundamental rights)?”

The overarching of the investigation project answers the question of how the European Union Charter of Fundamental Rights influences the “dogmatic unit of the fundamental rights” [1] in the Portuguese constitutional regime. In this investigation I will analyze (1) the principle of the indivisibility of the fundamental rights and its application, (2) the concept and the evolution of the social rights in Europe and specifically in Portugal, and finally (3) the legal regime of the social rights in the European Union Charter of the Fundamental Rights and the consequences it brings into the Portuguese Constitutional fundamental rights’ regime.

The three hypotheses that the investigation is based on are: (1) the European Charter of Fundamental Rights eliminates the legal differentiation between the civil, cultural political and socioeconomic rights;(2) the respect for the primacy of European Law is fulfilled by the State members of the European Union; (3) in face of a judicial sentence the State government applies the measures appropriate to the realization of social rights.

The main arguments that I will exploit in the dissertation are that the European Law has primacy above the National (Constitutional) Law and has the means to enforce that primacy [2] . The European Union Charter of Fundamental Rights as a predominance rule finishes with the differences on national judicial regime of the fundamental rights, the civil, cultural and social rights are considerate as one to effect of judicial remedies. So the 27 members’ states, including Portugal, have a legal obligation to remove all kind of obstacles to the enforcement of fundamental rights which includes the social ones. The citizens will be able to demand the national governments the implementation of their social rights.

Background and Significance

Many studies have been conducted on the topic of social rights, identifying variables that influence the outcome of their fundamental nature (Jorge Reis NOVAIS, 2010; Gráinne de BÚRCA and Bruno de WITTE, 2005, Asbjorn EIDE,et al. 2001, Paul HUNT, 1996).

In the Western Europe (of which 27 are members of the European Union) the constitutional characteristics are comparable. The countries are committed with the principles of fundamental rights, human dignity, democracy, market economy, social welfare and finally with the incorporation of the rules of the European Union.

However, it is not consensual the acceptance of the fundamental nature of the socioeconomics rights since all the Constitutions do a distinction between the legal-procedural regime of the civil rights, of the political rights and of the socioeconomics rights, and Portugal is not a exception (Jorge MIRANDA 2008).

One of the most controversial aspects in the legal regime of the socioeconomics rights is the lack of judicial remedies. On one hand it is possible defend that the competence to define witch judicial remedies must be exist belongs to the political organs – that are democratically chosen – and not to the judges, that aren’t elect and doesn’t have specific knowledge about the public resources as well given priority in the distribution of this resources, that are more and more limited. On the other hand the argument of the limitation of the public resources is not sufficient to put in question the fundamental nature of the socioeconomics rights, since the organization of free elections also causes monetary costs for the States (Andrew CLAPTAM 2007).

According with Jorge Reis NOVAIS [3] the problematic of the social rights arise with the strict detachment between rights, liberties and guarantees and social and cultural rights in the Portuguese Constitution, respectively in the titles II and III. The treats come of the traditional distinction create by the classification operate in the International Law of the Human Rights. For example we have the European Social Charter on social rights and the European Convention of Human Rights on politics and civil rights.

In the Portuguese Constitution systematization we find integrated essentially in the rights, liberties and guarantees the fundamental rights that guarantee generically the individual access to property of individual liberty, personal autonomy and political participation and, in the socioeconomics rights, the fundamental rights that guarantee the individual access to property economics, social and cultural related with the welfare and the conditions of life. By itself nothing there is controversial neither would assume any relevance or special meaning the fact of some Constitutions or documents of International Right will insert diversely an or another right in an or in the another kind.

The systematization adopted by the Portuguese Constitution is converted into a problem by withdraw, with express support in the constitutional text, the existence of a regime of protection privileged applied exclusively to the rights of liberty that will be consecrated in the title II (“right, liberties and guarantees”), and to that will have analogous nature to them.

In this national context, we can find a project research of Mónica Brito VIEIRA, Filipe Carreira da SILVA and Pedro MAGALHÃES that “is concerned with the way social and economic rights have become a part of the Portuguese democratic-constitutional regime, how (and the extent to which) they have become the object of political and social struggle, and how (and the extent to which) that struggle has transformed those rights as they are interpreted and applied in policy and in the case-law of the Constitutional Court.” [4]

And the interesting of study such matter came exactly because of same authors, for example Maurice Cranston [5] , argued that scarcity means that supposed socio-economic rights are not really rights at all. The problem is that if a person has a right then others have a duty to respect that right, but governments lack the resources necessary to fulfill the duties implied by citizens’ supposed socio-economic rights. Another author, Charles Kesler [6] has argued that socio-economics’ rights serve as an attempt to cloak political goals, which the majority may well agree are good things in and of themselves, in the language of rights and thus grant those political goals inappropriate connotations. In his opinion, calling socio-economic goods rights inherently creates a related concept of ‘duties’ so that other citizens have to be coerced by the government to give things to other people in order to fulfill these new rights.

With the binding effect European Union Charter of Fundamental Rights start a new standpoint of study the socio-economic rights, because contrarily to what happens in the Constitutions of the Members States, the European Union Charter of Fundamental Rights does not prescript any specific legal regime for the social rights. The general arrangements consecrated in the articles 51. º at 54. º of the Charter apply indistinctly to all of the rights, there isn’t distinguish between civil, political and social rights.

Is possible discuss that if does not exist a hierarchy of rights based on the strict respect for the principle of the indivisibility [7] of the fundamental rights in the Charter. Do not we be able to glimpse in the text of the Charter a legal commitment of the members’ States of the Union in promote and employ the social rights in EU territory? It will be the enforcement of the social rights, or the lack of enforcement, sufficient to not characterize them as fundamental?

We can’t ignore that Portugal is a State member of European Union and has to respect the European Law, including the European Charter of Fundamental Rights. So authors like Giacomo di FREDERICO and Serena COPPOLA take the national problematic of the social rights to another level, the European Union level.

They review the multi-level system of protection currently operating in Europe. The Charter is analyzed from a legal, political and practical standpoint, (but not its national constitutional implications).

Although the variables of my project have been explored, little has been discovered or directly investigated concerning the implications of the European Charter of Fundamental Rights in the national judicial enforcement of social rights, in particular in the Portuguese judicial system. As we can see from the previous studies they focus only or in an internal perspective or in an European perspective and don’t establish a connection between these two perspectives. Here dwells the originality of my investigation. I going analyse the national social rights regime but considering the correlation with the European law and by doing it I expect increase the consciousness that national States have an obligation to respect the social rights with legal consequences in a higher level, the European level.

(Main) References:

Battaini-Dragoni, Gabriella (2003), “Relatório sobre O Acesso aos Direitos Sociais na Europa do Comité Europeu para a Coesão Social”, (colecção Cogitum n.º 8 DEEP/MSST)

De Búrca, Gráinne e de Witte, Bruno (2005), “Social Rights in Europe” (New York: Oxford University Press)

Clapham, Andrew (2007), “Human Rights – a very short introduction”, Oxford University Press

Cranston, Maurice. ‘Human Rights: Real and Supposed,’ in Political Theory and the Rights of Man, edited by D. D. Raphael (Bloomington: Indiana University Press, 1967), pp. 43-51

Eide, Asbjorn et al. (2001), “Economic, Social and Cultural Rights: A Textbook” (The Hague: Martinus Nijhoff Publishers)

Figlio, David et al. (2004), “Political Economy of the Inequality in School Spending”, Journal of Urban Economics, Vol. 55: 338-349

di Frederico, Giacomo et al. (2009) The EU Charter of Fundamental Rights: From Declaration to Binding Instrument (Ius Gentium: Comparative Perspectives on Law and Justice), CIRDE

Hunt, Paul (1996), “Reclaiming Social Rights. International and Comparative Perspectives” ( Aldershot: Dartmouth)

Kesler Charles, (2009), on the Grand Liberal Project”. Uncommon Knowledge. http://www.hoover.org/multimedia/uk/47825927.html

Miranda, Jorge (2008), “Manual de Direito Constitucional – Tomo IV – Direitos Fundamentais” (Coimbra Editora)

Novais, Jorge Reis (2010), “Direitos Sociais, teoria jurídica dos Direitos sociais enquanto direitos fundamentais”, (Wolters Kluwer Coimbra Editora)

Tushnet, Mark (2007), “Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law” (Princeton: Princeton University Press)

Vieira, Mónica Brito; Silva, Filipe Carreira da and Magalhães, Pedro, “Direitos Sociais em Portugal: um projecto de investigação” www.ics.pt

Research Method and Statistical analysis

The research question will be analyzed by comparing the Portuguese case-law after 2000 (year of the proclamation of European Union Charter of Fundamental Rights) until December 2009 (year of the approval of Treaty of Lisbon, which incorporates the European Union Charter) with the case-law after December 2009. I will use as a complementary method the statistical one to help me with the conclusions that I can withdraw from the analyse.

In the investigation I will follow the ‘advise’ of Arend Lijphart “an alternative way of maximizing comparability is to analyze a single country diachronically. Such comparison of same unit at different time generally offers a better solution to control the problem than comparison of two or more different but similar units (…)” [8] – my highlight -, so my unit of analysis it will be only one State, Portugal.

The comparative method allied with the statistical one is the most appropriate methodology for this investigation because of the flexibility it offers and will be able to permit evokes similarities with description.

“The comparative method seeks to decipher the relationship between two (or more variables) by documenting observed differences and similarities between two (or more) subjects. This method seems more suitable that the experimental one because the ‘comparative researcher’ doesn’t need to carry on a treatment. Comparative research involves the systematic cataloging of the nature and/or behaviour of two or more variables, and the quantification of the relationship between them.” [9]

Another advantage of the comparative method is that it “doesn’t tend to investigate ‘grand theories’. It instead occupies itself with middle-range theories that do not purport to describe our social system in its entirety, but a subset of it.” [10]

The historical comparative research involves comparing different time-frames. The two main choices within this model are comparing two stages in time (either snapshots or time-series), or just comparing the same thing over time, to see if a policy’s effects differ over a stretch of time. And this last aspect of the comparative method is what I look for in my research.

Then I will use the statistical method as a complementary method. Why? Because this method accurate analysis of data using standardized statistical methods in scientific studies is critical to determining the validity of the research. “Statistical formulas such as regression, uncertainty coefficient, and various types of ANOVA (analyses of variance) are fundamental to forming logical, valid conclusions. If data reach significance under the appropriate statistical formula, the research hypothesis is supported. If not, the null hypothesis is supported (or, more correctly, not rejected), meaning no effect of the independent variable(s) was observed on the dependent variable(s)” [11] .

According with Jacob COHEN there are four interrelated components that influence the conclusions you might reach from a statistical test in a research project. “The four components are: sample size, or the number of units accessible to the study; effect size, or the salience of the treatment relative to the noise in measurement; alpha level (�?�, or significance level), or the odds that the observed result is due to chance; power, or the odds that you will observe a treatment effect when it occurs. Given values for any three of these components, it is possible to compute the value of the fourth. For instance, you might want to determine what a reasonable sample size would be for a study” [12] .

The benefit of the use of statistical method is that some of these components will be more meandering than others and we can work with this. Another advantage of the statistical method is that permits investigate the causality between the social rights judicial enforcement and the binding effect of the European Union Charter of Fundamental and explain the conclusion with more clarity.

On the other hand one of the primary limitations of comparative methods is the control of other variables that might influence a study. For example in the present study is hard to control which are the implications of the economic crisis in the fulfilment of the social rights by the governments.

Another disadvantages of the comparative method is that the evidence obtain is subjective, depending on the observer, in this case depending on me, on my prejudgment, that will guide me in the selection of the case-law analyzed.

To overcome these limitations I will analyze the before and the after of the results of the case-law facing the binding effect of the European Union Charter of Fundamental Rights, that will permit to bring under control other variables that possible influence the conclusion.

Expected findings

With this research I will try to provide a better understanding of the economic analysis of the “cycle of the poverty” that express in the underfeeding and in the illness, that by his time reduces the performance and the productivity economic, that by its shift drives to the reduction of the performance of the family lodger that aggravates the poverty and the hunger, seen that the people do not have access the food and cares of health, neither invest in the education of the sons or in the his own, the initiative economic cannot leave of have impact in the perspectives of development macroeconomic: without activity economic and a tax base, the government cannot invest in the population and the external investment is diminutive.

Furthermore, it will broaden the knowledge of how European Union, in particular Portugal, endeavour to end the social exclusion, because as we know in the history of the western society the promotion and the enforcement of the social rights are intimate related with the concept of citizenship, democracy and to the economic and cultural progress and with Europe debates with the worst economic crisis since the thirties, this fight requires the effective respect for the socioeconomics rights, as cares of health and education.

This study will also bring to light those who are euro sceptical by demonstrate that the primacy of European Law, and more specifically the European Union Charter of Fundamental Rights, above the national (constitutional) law increase the level of the judicial enforcement and the adoption of administrative rules related with social rights. And by this way increase the rank of life of the Portuguese citizens and Portugal contributes with the fight poverty and exclusion in EU territory.

Applying the Coleman’ bathtub into the investigation I can begin with a preposition of macro-level, which is translated in the judicial regime of fundamental rights be an indicator of economic development and be also an indicator of the welfare of the citizens. Then the preposition of macro-level goes to a micro-level, an individual level that is translated in the possibility of a citizen require a social right to the Court (by example require medical care and education) by this we (as a society) can fight the poverty and exclusion what translates once again the economic development of a country.

Judicial regime of fundamental rights Economic Development

Daily life of the Portuguese citizens fighting of poverty

Of course that I going to find some problems, that will show some weakness of the investigation, for example the acceptance of the fundamental nature of socio-economic rights by the judicial power. The prejudgments that are underline in each judicial sentence are a factor that I have to work. An uniformed judicial sentence is something that I never going to find and that obligate me to be more careful with the selection of the case-law.

The political issue is another problem that I going to find. Depending the majority parties in the government will influence the social politics adopt, a majority of left parties in government will be more pro-social than a right parties majority.

Still related with the political issue is the nomination of the judges for the Constitutional Court. The judges are not elect by the people, but chosen by the elect government; and here once again a left party government will chose judges with the same ideology.

To overcome this difficulty I need to demonstrate that the European Charter of Fundamental Rights establishes a fundamental legal framework that standardizes the understanding of the nature of socioeconomic rights as a fundamental right, and the respect of the social rights came from this standard and not from the parties’ ideology.

Another test that I need to do is demonstrate that the legal regime of fundamental rights increases the quality of life and therefore helps to combat poverty and achieve economic development.

Evaluation criteria

In this state of the investigation is difficult to predict all kind of obstacles that I will find, but already allows me to evaluate my position to answer the research question.

As we know economic and social rights are socio-economic human rights, such as the right to education, the right to housing, and the right to health. Economic and social rights are recognized and protected in international and regional human rights instruments. The European Union’ Member states have a legal obligation to respect, protect and fulfill economic and social rights and are expected to take “progressive action” towards their fulfilment.

According to the theory of three generations of human rights, economic, social and cultural rights are considered second-generation rights, while civil and political rights, such as freedom of speech, right to a fair trial, and the right to vote, are considered first-generation rights. The theory of negative and positive rights considers economic and social rights positive rights.

Economic, social and cultural right enshrined in international and regional human rights instruments are legally binding, like the European Charter of Fundamental Rights. And States member have a legal obligation to respect, protect and fulfill these rights.

In this study one of the goals is prove that citizens can demand their governments to “respect, protect and fulfill” the socio-economic rights and for that I attain to the Portuguese case-law (without forget to take in account same relevant administrative rule adopted by the Portuguese government)

To achieve my research aims I will use the data are available on the Constitutional Court Website (http://www.tribunalconstitucional.pt/tc/acordaos/ ) as well at the European Court of Justice Website (http://curia.europa.eu/jcms/jcms/j_6/).

Every year the European Court of Justice publishes statistical information concerning its judicial activity in its annual report, – available on the Curia website (http://curia.europa.eu/jcms/jcms/Jo2_7032/) -, which will help me with the selection of the case-law. Just in 2009 the European Court of Justice decided 32 cases about social politic and 6 of them condemn Portugal for not respect European Law.

Based on these data give by the annual report I can consult the national case-law and identify which Court doesn’t apply the rules about the social rights and even identify which right is not been provide and proceed with the internal validity of my theory. For example 2 of the 6 cases are related with the right to education and with a sentence that condemn the government to respect the article 74. º of the Portuguese Constitution.

Another database that will help me with the internal validity is Assembleia da República website (http://www.parlamento.pt/europa/Paginas/default.aspx) that provides the diplomas approved in which year and obviously I will can identify if they are associated with the implementation of the European law, in particular with social rights.

It’s my believe that the data available permits to test feasibility of the hypotheses:

(1) the European Charter of Fundamental Rights eliminate the legal differentiation between the civil, culture political and socioeconomic rights by analyse the case-law that should be about social rights also e not only civil rights for example and just in the year of 2009 we can find 6 cases related with social rights

(2) the respect for the primacy of European Law is fulfilled by the State members of the European Union. This hypothesis is more complicate to test because the respect for the primacy European Law can be demonstrate by the administrative rules implemented by the government and this rules don’t need to affirm that they are taken because of the European Law. But if they respect the European Law her primacy is secure and the internal validity too.

(3) in face of a judicial sentence the State government apply the measures appropriate to the realization of social rights. To test this hypothesis I am going to verify which case-law is backsliding.

What concerns external validity although Portugal be my unit of analyse we can inference the conclusions to all 27 members’ States of European Union, even to United Kingdom, and by doing that it’s possible to proceed with a generalization of the theory.

So my expectations are very high what concerns to confirm the hypotheses and answer in a positive way (with all consequence that origin) to the research question.

Discussion/Contribution

The Charter of Fundamental Rights of the European Union enshrines certain political, social, and economic rights for European Union citizens and residents, into European Union law. It was drafted by the European Convention and solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of Ministers and the European Commission. However its then legal status was uncertain and it did not have full legal effect until the entry into force of the Treaty of Lisbon on 1 December 2009.

Under the Charter, the European Union must act and legislate consistently with the Charter and the European Union’s courts will strike down European Union and national legislation which contravenes it.

Article 51(1) of the Charter addresses the Charter to the European Union’s institutions, bodies established under European Union law and, when implementing European Union laws, the European Union’s member states. And individuals will be able to take member states to court because they have failed to uphold the socio-economic rights.

My theory is that State members of European Union are now, in a most strong way, obligated to take “progressive action” towards fulfilment of the Charter rights. While immediate fulfilment may not be possible due to the economic situation of a country, postponement of proactive action is not permitted. State members must show genuine efforts to secure the economic and social rights enshrined in the European Charter of Fundamentals Rights. The burden of proof for progressive action is considered on been with the state party. The prohibition on discrimination in relation to socio-economic rights is regarded as having immediate effect. State members must abolish laws, policies and practices which effect the equal enjoyment of socio-economic rights and take action to prevent discrimination in public life. All state members, regardless of the economic situation in the country or resource scarcity, are required to ensure respect for minimum subsistence rights for all. State members must also ensure that available resources are accessed and used equitably. Therefore government decisions on how to allocate resources should be subject to scrutiny. Legislative measures alone are not sufficient to ensure compliance with the European Charter of Fundamental Rights and of state members are expected to provide judicial remedies in addition to taking administrative, financial, educational and social measures

What I will do in this study is verifying if Portugal is respecting this legal (and moral) obligation. To do it is necessary to find out how the European Union Charter of Fundamental Rights influences the “dogmatic unit of the fundamental rights” [13] in the Portuguese constitutional regime. And until now I am convinced that binding effect of the Charter combine with the direct effect permit sustain that all kind of rights, civil, culture and socioeconomics are fundamental rights.

Conclusions

With this investigation my principal aim is examine recent developments, and discuss some of the current dilemmas and challenges for the system of protection of social rights in Portugal. Social rights while traditionally the neglected sibling within the human rights family has been prominent on the agenda in Europe in recent years.

I will try to go beyond the traditional focus on fundamental rights to consider other social rights which are seen to be of growing importance, such as health and disability in particular. I go reflect through a series of case-law on the social rights. This approach allows reflection on the respective strengths and weaknesses of national system, and the existing tensions and synergies between Portuguese and European legal regime. At this time I am convincing that the socioeconomics rights are benefit of a better legal treatment related with the binding effect of the European Union Charter of Fundamental Rights as we can see from the recent case-law.

Key words: Social rights, national judicial remedies and primacy of European Law

Host institutions: Faculdade de Direito, Faculdade de Letras e Instituto de Ciências Sociais da Universidade de Lisboa

Work currently being developed: I am currently researching literature about the principle of the indivisibility of the fundamental rights and its application in Portugal

Predicted task: for the second semester of 2011 – researching literature about the concept and the evolution of the social rights in Europe and specifically in Portugal; for 2012 – Selection of national case-law on social rights and study of its implications on Portuguese citizens life, researching literature about legal regime of European Union Charter of Fundamental Rights, selection of European case-law on social rights; for 2013 – measure Portuguese citizens rank life and cross figures with the previous conclusions and for 2014 – review the possible conclusions and present the dissertation to the host institutions.