The application of the first additional protocol of the European Human Rights Convention to social benefits, brake for social security reforms?

Abstract

Although the right to Social Security is regulated in numerous international Treaties, neither the European Convention on Human Rights nor its Additional Protocols contemplate it. Never­theless, there are numerous judgments of the European Court of Human Rights that have for object the protection of the right to receive social contributory, non-contributory and of a mixed nature benefits. The common element in these judgments - which are analyzed in the first block - is that the Court starts from the premise that the right to social benefits is a property right that can be protected under the first article of the First Additional Protocol to the European Convention. of Human Rights. Based on this pre­cept, Spain has already been sentenced twice in cases related to Social Security pensions. This jurisprudence could also become a limit to the legislative power of States that, like Spain, introduced important pension cuts in the harshest years of the last global economic and financial crisis.

The second block examines the impact of this jurisprudence of the European Court of Human Rights in the Court of Justice of the European Union, of which the preliminary question Florescu is, at present, the only exponent. Finally, we analyze the jurisprudence of our Constitutional Court that has maintained the criterion that in the field of social benefits there is no property right, but an expectation of non-compensable right.