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European Welfare State Constitutions
after the Financial Crisis
European Welfare State
Constitutions after the
Financial Crisis
Edited by
U L R IC H B E C K E R
Director at the Max Planck Institute for Social Law and Social Policy
A NA S TA SIA P OU L OU
Senior Research Fellow at the Max Planck Institute for Social Law and
Social Policy
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
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© The Contributors 2020
The moral rights of the authors have been asserted
First Edition published in 2020
Impression: 1
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Published in the United States of America by Oxford University Press
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Data available
Library of Congress Control Number: 2020940065
ISBN 978–0–19–885177–6
DOI: 10.1093/oso/9780198851776.001.0001
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Preface
Hit by the European financial and economic crisis that erupted in 2008, several
Member States of the European Union, namely Latvia, Rumania, and Hungary, and
of the European Monetary Union, namely Greece, Ireland, Portugal, and Cyprus,
were unable to refinance their gross government debt through the financial market.
As a result, they asked for financial assistance not only from already established
international institutions, such as the International Monetary Fund or the World
Bank, but also from newly created European financial assistance mechanisms,
such as the European Financial Stabilisation Mechanism (EFSM), the European
Financial Stability Facility (EFSF), and the European Stability Mechanism (ESM).
Other EU Member States, such as Italy and Spain, were not officially subjected to a
financial assistance scheme, but received informal instructions for the reduction of
social security benefits.
Despite their differences, strict conditionality represented a common ground
for all types of financial assistance. The award of all loans was made dependent on
the recipient state complying with economic policy conditions that were extremely
broad in scope. Apart from budgetary discipline, the financial assistance condi-
tions also related to what one would call the core of social policy, namely, cuts in
pensions and social assistance, and reforms in public healthcare.
The far-reaching reforms in the field of social security and assistance were in
many cases experienced as violations of human rights by the respective right-
holders, who sought legal protection in national and international courts. As a re-
sult, many national constitutional courts, but also the Court of Justice of the EU
and the European Court of Human Rights, issued a series of rulings on the con-
formity of the social protection reforms that were initiated during the eurozone
crisis with constitutional law and human rights. This international and national
jurisprudence and the mounting concern about the implications of the relevant
reforms in social protection for the application of constitutional law motivated
the launch of the proposed edited collection. Given that the majority of countries
under examination have exited the crisis, the book seeks to unfold the legacy of the
crisis, highlighting the lessons learned from it in the field of social protection and
constitutional law.
This book aspires to offer a holistic approach that analyses both (1) the specific
reforms in social protection introduced during the European financial crisis and
(2) their implications for constitutional law. Against this background, its aim is
twofold. First, it records and systematises the crisis-related reforms introduced in
the field of social protection broadly understood, covering old-age benefits, social
vi Preface
Ulrich Becker
Anastasia Poulou
Munich, April 2020
Table of Cases
Ulrich Becker, Prof Dr, Director at the Max Planck Institute for Social Law and Social
Policy, Munich
Kristīne Dupate, Dr, Associate Professor at the Faculty of Law, University of Latvia
József Hajdú, Dr, Professor for Labour Law and Social Security Law at the Faculty of Law,
University of Szeged
Constantinos Kombos, Dr, Associate Professor of Public Law at the Law Department,
University of Cyprus
João Carlos Loureiro, Dr, Professor of Constitutional and Social Security Law, University of
Coimbra
Juan Antonio Maldonado Molina, Dr, Professor of Labour and Social Security Law,
University of Granada
Andrea Pin, Dr, Associate Professor of Comparative Public Law, University of Padova
Anastasia Poulou, Dr, Senior Research Fellow at the Max Planck Institute for Social Law and
Social Policy, Munich
Juan Romero Coronado, Dr, Professor of Labour and Social Security Law, University of
Granada
Suzana Tavares da Silva, Dr, Judge at the Portuguese Administrative Supreme Court and
Professor of Constitutional, Administrative and Tax Law, University of Coimbra
José Carlos Vieira de Andrade, Dr, Full Professor of Constitutional and Administrative Law,
University of Coimbra
1
Introduction
Ulrich Becker
I. Starting points
1. How did the European financial crisis change the constitution of welfare states?
The well-known background of this question can be summarised very briefly. The
financial crisis, which reached Europe in 2008 in a time of economic recession, led
to a debt crisis in 2009; a series of Member States of the European Union (EU) had to
reduce their budgetary deficits. In this context, and more or less strongly influenced
by European and international institutions, they undertook different measures to cut
expenditure, and they reacted, in particular, with cutbacks in social rights.
These austerity measures continue to be highly disputed for good reasons. Their
economic effectiveness and their political feasibility remain questionable. But this dis-
cussion will not be taken up here. We shall focus on the issue from a legal perspective.
It is obvious that the financial crisis hit European states as an external shock, and the
question we are interested in, and that the following chapters will deal with, is how the
legal systems that can be understood as the backbones of welfare states have managed
to cope with this shock. In this context, our understanding of the constitution of wel-
fare states is twofold.
Ulrich Becker, Introduction In: European Welfare State Constitutions after the Financial Crisis. Edited by: Ulrich Becker and
Anastasia Poulou, Oxford University Press (2020). © The Contributors. DOI: 10.1093/oso/9780198851776.003.0001
2 Introduction
1 It is noteworthy that this territorial responsibility is not restricted to their (own) citizens, al-
though we do not elaborate on migration issues here; see for further explanations Ulrich Becker, ‘The
Challenge of Migration to the Welfare State’ in Eyal Benvenisti and Georg Nolte (eds), The Welfare State,
Globalization, and International Law (Springer 2003) 1.
2 See Commission, ‘European Social Policy, A Way Forward for the Union, A White Paper’ COM
(94) 333 final, 9, pointing at ‘shared values’ as a basis, ‘held together by the conviction that economic and
social progress must go hand in hand’.
3 Which is the reason why different ‘welfare state models’ are under discussion, see Wil A Arts and
John Gelissen, ‘Models of the Welfare State’ in Francis G Castles and others (eds), The Oxford Handbook
of the Welfare State (OUP 2010)—even though most states do not follow one coherent social policy ap-
proach anyway.
Starting points 3
States. The second group comprises Greece, Ireland, Portugal, and Cyprus. These are
eurozone Member States that received financial assistance from the newly created
European assistance mechanisms (EFSM, EFSF, ESM) and the IMF. The third group
of country reports encompasses Italy and Spain. Both received instructions to re-
duce social protection benefits, even if in their case the crisis management measures
were not formally prescribed by supranational organisations.
In its substance, the book combines two legal fields. On the one hand, the na-
tional reports document and systematise the crisis-related reforms introduced in
the field of social protection as it is broadly understood, covering old-age benefits,
social assistance allowances, unemployment benefits, family benefits, and health-
care. This part depicts the specific crisis experience of each country and links the
crisis-related reforms to the overall national social policy developments. On the
other hand, the national reports also investigate what role constitutional law played
in controlling the social protection reforms and the ways in which the application
of constitutional law has changed during the crisis. This allows an assessment of
whether the fundamental constitutional principles of the European welfare state
that traditionally protect social rights were altered during the crisis.
This study can build on previously collected information about recent changes
of national social protection systems, such as reports from the World Health
Organization (WHO) Regional Office for Europe,4 the European Trade Union
Institute,5 or the European Social Observatory,6 although they do not claim to offer
a systematic and comprehensive legal analysis. Yet, they do highlight the practical
outcome of the austerity measures, and the publications on the relationship be-
tween those measures and the now poor level of healthcare in various EU Member
States hit by the financial crisis7 are impressive. Recent research on concepts of the
welfare state and their development throughout the years of the crisis concentrates
on general theories of welfare state models rather than on a systematic assessment
of reforms that were introduced as a reaction to the debt crisis.8 It can serve as
4 Anna Maresso and others, Economic Crisis, Health Systems and Health in Europe (Observatory
Studies Series 41, WHO Regional Office for Europe 2014); Philipa Mladovsky and others, Health Policy
Responses to the Financial Crisis in Europe (WHO Regional Office for Europe 2012).
5 Furio Stamati and Rita Baeten, Health Care Reforms and the Crisis (European Trade Union
David Natali and others (eds), Social Developments in the European Union 2011 (European Social
Observatory 2012).
7 Gesellschaft für Versicherungswissenschaft und - gestaltung (GVG) (ed), 14. Euroforum:
Auswirkungen der Euro-Krise auf die nationale Gesundheitspolitik: Dokumentation des GVG-Euroforums
in Potsdam am 11. Oktober 2012 vol 72 (Schriftenreihe der GVG 2013); Marina Karanikolos and others,
‘Financial Crisis, Austerity and Health in Europe’ (2013) 381(9874) The Lancet 1323; Emmanuele
Pavolini and others (eds), Health Care Systems in Europe under Austerity (Palgrave Macmillan 2013);
David Stuckler and Sanjay Basu, The Body Economic: Why Austerity Kills (Gildan Media 2013).
8 Jon Erik Dølvik and Andrew Martin (ed), European Social Models from Crisis to
Crisis: Employment and Inequality in the Era of Monetary Integration (OUP 2014); Anton Hemerijck,
Changing Welfare States (OUP 2012); Martin Rhodes (ed), Southern European Welfare States: Between
Crisis and Reform (Routledge Chapman & Hall 2014); Maria Petmesidou and Ana Marta Guillén (eds),
Economic Crisis and Austerity in Southern Europe: Threat or Opportunity for a Sustainable Welfare State
(Routledge 2015).
4 Introduction
9 Including Germany, Scandinavia, and the UK, see Peter Taylor-Gooby, Benjamin Leruth, and
Heejung Chung (eds), After Austerity: Welfare State Transformation in Europe after the Great Recession
(OUP 2017).
10 Like Toomas Kotkas and Kenneth Veitch (eds), Social Rights in the Welfare State, Origins and
(CUP 2014); Andreas Fischer-Lescano, Human Rights in Times of Austerity Policy: The EU Institutions
and the Conclusion of Memoranda of Understanding (Nomos 2014).
12 See Juan Pablo Bohoslavsky and Letnar Cernic (eds), Making Sovereign Financing and Human
and Social Rights after the Global Financial Crisis (CUP 2014), dealing with the global financial crisis in
the post-2007 context and reflecting experiences from countries in a variety of global regions (Spain,
USA, Colombia, Argentina, and South Africa) in different fields (including taxation or the labour
market). See also Stefano Civitarese Matteucci and Simon Halliday (eds), Social Rights in Europe in
an Age of Austerity (Routledge 2017) with a different selection of case studies (choosing the biggest
European economies, namely UK, France, Germany, Italy, and Spain).
16 And not so much the role of constitutional amendments; see for the incorporation of the ‘golden
rule’ of the fiscal compact within national constitutions Maurice Adams, Federico Fabbrini, and
Pierre Larouche (eds), The Constitutionalisation of European Budgetary Constraints (Hart Publishing
2014).
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