The ‘Catshuis’ negotiations are surrounded by speculations on political incommensurabilites and party tactics. At least the aim of the negotiations is unambiguous and clear: tackling the budget deficit by way of benefit cuts. Together with upcoming pension reforms, far-reaching social security measures are however not only a matter of majority agreement. National and EU legal restraints provide for the necessary boundaries. However, the influence of the ECHR should also not be underestimated.
The ECHR does not contain a ‘right to social security’ or other explicit socio-economic rights. Nevertheless, the European Court of Human Rights (ECtHR) today regularly reviews pension and benefits issues. Since 2005, it has held that pensions and benefits are ‘possessions’ that deserve the protection of Article 1 of Protocol No. 1 (the protection of property), regardless of whether they are funded by prior paid contributions. Should social security issues always be framed in terms of human rights? And does this mean that our politicians and policymakers should seriously fear Strasbourg interference, when much-needed measures are to the detriment of individual interests?
The answer to the latter question is yes and no. Through its broad interpretation of ‘possessions’ the ECtHR has been able to protect individuals confronted with intolerable effects of social security measures and legislation. It has found a violation, for example, where access to a pension fund was limited on the basis of nationality and where the withdrawal of a benefit caused severe financial hardship. At the same time the Court’s interference has been met with criticism. For should it really deal with what is generally thought to belong to the prerogative of states, or simply considered a matter of democratic decision making?
For that reason, however, the general approach of the Court to pension and social security issues is characterized by wide margins of appreciation. The ECtHR shows a lot of deference to Member States; it has acknowledged that abrupt Strasbourg interference with pension schemes is not desirable, and that partly due to their complexity, social security schemes remain essentially a national matter. Also, when states face economically difficult times, measures are generally considered to serve the public interest and pursue a legitimate aim. But still, measures taken should always be proportional in relation to the aims pursued.
So will the gains of upcoming reforms and benefit cuts outweigh our potential losses? The ECtHR only interferes with national political outcomes if these have intolerable consequences. Nevertheless, the fact that this human rights court does consider social security issues to fall within its jurisdiction, means that its standards should be taken into account and that the proportionality of proposed measures is of the utmost importance. Recently, the Voorzieningenrechter Rechtbank ‘s-Gravenhage (LJN: BU9921) held that the complete and immediate repeal of the Wet werk en inkomen kunstenaars (Wwik)—creating benefits for artists (temporarily) lacking enough work—violated Article 1 of Protocol No. 1, mainly because of the absence of a transitional period. In my opinion, the way the voorzieningenrechter dealt with the issue was pretty much in line with what the Strasbourg Court has held so far. Recently, the ECtHR repeated that especially when benefits are suspended entirely and there is no transitional period, the test it applies is a stricter one and measures are then more likely to be ‘disproportional’. Beware, therefore, Dutch politicians and authorities: Strasbourg is watching you.