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Protecting Social Rights: A Fine Balance Between the ‘Golden Rule’ and the ‘Golden Principle’ in Greece

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YSEC Yearbook of Socio-Economic Constitutions 2022

Part of the book series: YSEC Yearbook of Socio-Economic Constitutions ((YSEC,volume 2022))

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Abstract

This paper will examine the way that the constitutional protection of decent living emerged in the Greek legal order, initially through constitutional interpretation and after through constitutionalization in the recent constitutional amendment, all against a backdrop of severe budgetary deficits and strict financial obligations. The paper will first provide the context and background on state social policy up to the beginnings of the financial debt crisis in 2011. Thereafter, the discussion will turn to the crisis period itself and the fiscal EMU rules, and in particular the Golden Rule which obliged the adoption of austerity measures that adversely impacted social rights. Compliance with the Golden Rule found a counterbalance in the decent living principle as far the protection of social rights was concerned. The broad scope and means of implementing the decent living principle rendered as a Golden Principle in the face of the austerity measures adopted for financial reasons and placed a severe burden on social rights. Through the interpretive construction of the principle of fiscal sustainability, the courts found the way to implement the content of the Golden Rule which is not constitutionalized in the Greek legal order. Rather, eventually it was the Golden Principle that found its way to constitutionalization after 10 years of systematic implementation by the national courts under the judicial review of the constitutionality of the austerity measures. Finally, this paper will endeavour to show how the Golden Rule and Golden Principle—the former through constitutional interpretation, the latter through constitutionalization—established post-crisis a balance between the dual needs of establishing a robust state budget while maintaining strong social protection and social justice.

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Notes

  1. 1.

    Chrysogonos and Vlachopoulos (2017), p. 382.

  2. 2.

    Chrysogonos and Vlachopoulos (2017), p. 236.

  3. 3.

    This is of interest since it reappeared once more during the pandemic, whereby the state adopts anew the policy of benefit support to support those people adversely affected by the measures taken to protect public health, that is to say, companies, the self-employed and workers whose stores and offices remained closed to stop the spread of COVID-19.

  4. 4.

    Papadopoulou (2004), p. 4.

  5. 5.

    Petrakos et al. (2021), p. 33.

  6. 6.

    See Article 126 of the Treaty on Functioning of the European Union (TFEU) together with the Protocol No 12 on the excessive deficit procedure 12008M/PRO/12, Official Journal 115, 09/05/2008 P. 0279–0280.

  7. 7.

    Papadopoulou (2014), p. 224.

  8. 8.

    2004/917/EC: Council Decision of 5 July 2004 on the existence of an excessive deficit in Greece. ELI: http://data.europa.eu/eli/dec/2004/917/oj.

  9. 9.

    2009/415/EC: Council Decision of 27 April 2009 on the existence of an excessive deficit in Greece. ELI: http://data.europa.eu/eli/dec/2009/415/oj.

  10. 10.

    Pagoulatos (2018), p. 6.

  11. 11.

    Ruffert (2020), p. 35.

  12. 12.

    Pagoulatos (2018), p. 7.

  13. 13.

    Peers (2012), p. 404.

  14. 14.

    Adams et al. (2014), p. 2; Papadopoulou (2014), p. 230.

  15. 15.

    Papadopoulou (2014), p. 240.

  16. 16.

    Venizelos (2021), p. 163; Contiades et al. (2019), p. 676.

  17. 17.

    For another perspective, i.e. the problem of conditionality of the “new economic governance” in the eurozone, see Poulou (2014), pp. 1148–1154.

  18. 18.

    Contiades and Tassopoulos (2013), p. 197.

  19. 19.

    Venizelos (2020), p. 296.

  20. 20.

    See for an extended analysis, Poulou (2014), pp. 1161–1169.

  21. 21.

    Achtsioglou and Doherty (2014), p. 220.

  22. 22.

    According to the explanatory memorandum to the law “Unified Social Security System - Insurance-pension system reform” (page 2), “[The] establishing of the national pension at 384 euros was based on 60% of earnings according to the European Union”, whose rules refer to the quantitative techniques of poverty measurement. In fact, 60% of the [median equivalent] income is the poverty threshold.

  23. 23.

    Greek Council of State [GC] 2527/2013, para 14.

  24. 24.

    Contiades et al. (2019), p. 679.

  25. 25.

    Contiades and Tassopoulos (2013), p. 198.

  26. 26.

    See for the constitutional obligation of the tax progressivity Karagiorgas (1981), p. 278.

  27. 27.

    Calliess (2012), p. 104; Fabbrini (2013).

  28. 28.

    Despite the fact that the austerity measures appeared as products of national legislation, as Poulou points out (2017), p. 1015.

  29. 29.

    See at Sect. 3.

  30. 30.

    Papadopoulou (2014), p. 244.

  31. 31.

    Vlachopoulos (2019), p. 8.

  32. 32.

    See for the judicial system of the control of constitutionality, Skouris (1989), p. 180.

  33. 33.

    Contiades et al. (2019), p. 669.

  34. 34.

    Vlachopoulos (2019), p. 10.

  35. 35.

    See above at Sect. 1.1.

  36. 36.

    Article 94 para 1 of the Greek Constitution: “1. The Supreme Administrative Court and ordinary administrative courts shall have jurisdiction on administrative disputes, as specified by law, without prejudice to the competence of the Court of Audit.”.

  37. 37.

    Article 93 para 1 of the Greek Constitution: “1. Courts are distinguished into administrative and civil and criminal courts, and they are organized by special statutes.”.

  38. 38.

    Article 98 of the Greek Constitution: “1. The jurisdiction of the Court of Audit pertains mainly to: a. The audit of the expenditures of the State as well as of local government agencies or other legal entities subject to this status by special provision of law. b. The audit of high financial value contracts in which contracting partner is the State or any other legal entity which in this respect is equated to the State, as specified by law. […] f. The trial of disputes concerning the granting of pensions as well as the audit of accounts under section (c). g. The trial of cases related to liability of civil or military servants of the State, as well as of civil servants of local government agencies and of the other public law legal persons, for any loss that through intent or negligence incurred upon the State, the local government agencies or other public law legal persons. 2. The jurisdiction of the Court of Audit shall be regulated and exercised as specified by law. The provisions of article 93 paragraphs 2 and 3 shall not be applicable in the cases specified in (a) through (d) of the preceding paragraph. 3. The judgments of the Court of Audit in the cases specified in paragraph 1 shall not be subject to the control of the Supreme Administrative Court.” in conjunction with the Article 100 para 1 e: “1. A Special Highest Court shall be established, the jurisdiction of which shall comprise: […] e. Settlement of controversies on whether the content of a statute enacted by Parliament is contrary to the Constitution, or on the interpretation of provisions of such statute when conflicting judgments have been pronounced by the Supreme Administrative Court, the Supreme Civil and Criminal Court or the Court of Audit”.

  39. 39.

    Greek Council of State [GC] 668/2012, [GC] 431/2018, 2705/2014.

  40. 40.

    For example, according to the decision no 3177/2014 of the Greek Council of State [GC], the deterioration of salary arrangements is not, in principle, contrary to any constitutional provision or constitutional principle, as the legislator, assessing the prevailing conditions and taking into account the fiscal situation of the country, can reform the salary of employees of the public sector, within reasonable limits.

  41. 41.

    In many cases, it was accepted that in cases of prolonged economic crisis, the legislator may adopt measures to reduce public expenditure which entails a serious financial burden for large parts of the population and, in particular, those receiving a salary or pension from the public treasury due to the immediate application and effectiveness of such measures regarding the reduction of the government deficit. See, for example, Greek Council of State [GC] 668/2012, 4741/2012.

  42. 42.

    Greek Council of State [GC] 1286/2012, para 13, where according to the reasoning, the reduction of the benefits is a general measure of fiscal consolidation within the regulatory framework of the broad set of economic policy measures. This measure, which is part of the Medium-Term Fiscal Adjustment Program of the country, seeks to increase revenues and reduce expenditures in order to save the resources necessary to ensure the sustainability of social security, the achievement of the defined fiscal targets and, in particular, the reduction of the general government deficit, including the deficits of the social security funds. In the light of the above, the adopted measure serves the above overriding public interest and for that reason does not violate any constitutional provision.

  43. 43.

    Giannakopoulos (2012), p. 100.

  44. 44.

    Greek Court of Audit [GC] 244/2017.

  45. 45.

    Greek Court of Audit [GC] 244/2017.

  46. 46.

    Contiades et al. (2019), p. 680.

  47. 47.

    Greek Council of State [GC] 734/2016.

  48. 48.

    See, for example, K. Chrysogonos (European Parliamentary Member), Question for written answer E-004784-18 on Excessive taxation hampering a recovery in Greek economic output and competitiveness to the Commission under the Rule 130, 24.9.2018.

  49. 49.

    According to Hellenic Statistical Authority, Reports 2013–2018, available at www.statistics.gr.

  50. 50.

    First time appeared in dissenting opinion of the decision of the Greek Council of State [GC] 668/2012. As cornerstone, it is considered the decision of the Greek Council of State [GC] 2287/2015.

  51. 51.

    Greek Council of State [GC] 1906/2014, regarding the privatization of water.

  52. 52.

    In the decision no 2193/2014 [GC] the Greek Council of State estimated that the public interest served by the new reductions were imposed, was not as strong as the one that justified the adoption of the initial measures of Laws 3833/2010 and 3845/2012 which, according to the legislator, were taken before the risk of immediate bankruptcy and the country’s exit from the eurozone.

  53. 53.

    Explicitly the decision no 2287/2015 of the Grand Chamber of the Greek Council of State is referred to the Hartz IV, the well-known decision of the German Federal Constitutional Court (BVerfG, Judgment of the First Senate of 9 February 2010—1 BvL 1/09—paras. 1–220, http://www.bverfg.de/e/ls20100209_1bvl000109en.html).

  54. 54.

    Christoforidou (2021), p. 34.

  55. 55.

    Leijten (2015), p. 24.

  56. 56.

    Greek Council of State [GC] Decision no 1087/2017, dissenting opinion.

  57. 57.

    Greek Council of State [GC] Decision no 1286/2012, dissenting opinion.

  58. 58.

    Greek Council of State [GC] Decision no 2287/2015.

  59. 59.

    Greek Council of State [GC] Decision no 532/2015, 359/2018.

  60. 60.

    Greek Council of State [GC] Decision no 719/2018.

  61. 61.

    Sotirelis (2022), p. 348.

  62. 62.

    Greek Council of State Decision no 359/2018.

  63. 63.

    Greek Council of State Decision no 359/2018, [GC] 2287/2015.

  64. 64.

    Greek Council of State Decision no 359/2018, [GC] 1087/2017.

  65. 65.

    Kaidatzis (2021), p. 279.

  66. 66.

    Greek Council of State [GC] Decision no 2287/2015.

  67. 67.

    For example, according to Decision no 1716/2010 of the Administrative Court of Appeal of Athens, the confiscation of a pension may serve reasons of public interest, such as the recovery of public claims, but given that it is imposed on a person who has no other means to live on, it violates the human dignity principle.

  68. 68.

    See, for the term ‘liquidation’ regarding social rights, Moyn (2018), p. 71.

  69. 69.

    According to the Proceedings of the Constitutional Amendment of the Greek Constitution (in Greek), XI Period, Session Β: 26.9.2007.

  70. 70.

    Groot (2004), p. 27.

  71. 71.

    Article 4 para 5 of the Greek Constitution: “5. Greek citizens contribute without distinction to public charges in proportion to their means.”.

  72. 72.

    Article 5 para 1 of the Greek Constitution: “1. All persons shall have the right to develop freely their personality and to participate in the social, economic and political life of the country, insofar as they do not infringe the rights of others or violate the Constitution and the good usages.”.

  73. 73.

    Gruner (2009), p. 207.

  74. 74.

    The unconditionality of basic income has the meaning that personal means such as property or incomes are not taken in consideration or shape the amount of cash benefit, Zelleke (2005), p. 4; Torry (2019), p. 24.

  75. 75.

    Kaidatzis (2021), p. 277.

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  1. Hellenic Open University, Patra, Greece

    Styliani Christoforidou

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    Eva Storskrubb

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Christoforidou, S. (2023). Protecting Social Rights: A Fine Balance Between the ‘Golden Rule’ and the ‘Golden Principle’ in Greece. In: Storskrubb, E. (eds) YSEC Yearbook of Socio-Economic Constitutions 2022. YSEC Yearbook of Socio-Economic Constitutions, vol 2022. Springer, Cham. https://doi.org/10.1007/16495_2023_47

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