Leiden Law Blog

Pension Reforms and Benefit Cuts: Human Rights Proof?

Posted on by Ingrid Leijten in Public Law , 1
Pension Reforms and Benefit Cuts: Human Rights Proof?

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.

1 Comment

Marilyn Dijkman
Posted by Marilyn Dijkman on January 8, 2018 at 20:29

I find the change in the retirement age has been an injustice to people like my hisband, who after 40 years loyaly working, and paying all the contributions required of him , only to be told he has to work another 6 1/2 years more!, he had worked 39 years + 3 months in 2016,when he was conviently made redundant, his company were forced to include a letter with his reference, explaining that it was of no fault of his that they had made him redundant, it was purely ageism , as they wanted to employ a younger person straight from uni, as they were cheaper! But as the government had moved the goal posts on retiring, he was left in a stressful situation, and was like that for 18 months , he now has a tempory job as a Coordinator Technician in The hemoglobin laboratory, he just has the dreaded stress of being made unemployed again , once the merger of two hospitals take place!, then he will be reduced yet again to struggling on an insufficient benefit, whilst he is forced to look for another job, it seems rediculous to me, to be paying out benefits, to some one who has done his fair shair of working and contributing, and has a good pension he could be drawing, plus there does seem to be one rule for one and another for others, as there are people younger or the same age that have or are retiring, whilst my husband is expected to work!

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