Portuguese constitutional courts rulings - RULING No 353/12...

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RULING No. 353/12 5 of July of 2012 Headnotes: The norms that provided for a measure under which the Christmas-month (13 th month) and holiday-month (14 th month), or any equivalent, payments were suspended in 2012-2014, both for persons who receive salary-based remunerations from public entities and for persons who receive retirement pensions via the public social security system, were unconstitutional because they violated the aspect of the constitutionally enshrined principle of equality that requires the just distribution of public costs. There should have been limits to the difference between the extent of the sacrifice made by the persons who were affected by this measure and the sacrifice of those who were not; and the inequality caused by the difference in situations should have been the object of a degree of proportionality. The extremely serious economic/financial situation and the need for the measures that are adopted to deal with it to be effective cannot serve as grounds for dispensing the legislator from being subject to the fundamental rights and key structural principles of the state based on the rule of law, and this is true namely with regard to parameters such as the principle of proportional equality. The Constitution clearly cannot distance itself from economic and financial reality, but it does possess a specific normative autonomy that prevents economic or financial objectives from prevailing in an unlimited way over parameters such as that of equality, which the Constitution defends and with which it must ensure compliance. Summary: Under the rules governing abstract ex post facto reviews, a group of Members of the Assembly of the Republic asked the Constitutional Court for a declaration with generally binding force of the unconstitutionality of various norms contained in the State Budget Law (LOE) for 2012. These norms created measures that provided for “suspension of the Christmas and holiday-month payments” (non-payment, in principle for a number of years, with no prospect of payment of the lost amounts at any time in the future), while simultaneously maintaining the measures involving “remuneratory reductions” contained in the LOE for 2011. The universe of persons encompassed by the “suspension” measures was comprised of public-sector workers, and retirees (in the latter case, including those from the private sector). The duration of the LOE 2012 norms in question was for as long as the Financial Assistance Programme (FAP) for Portugal remained in force – a duration that was by nature extendable – and did not respect the legal assumption that the remuneratory reduction measures provided for in LOE 2011 would only remain in effect for one year at a time and would require annual renewal if they were to last longer than that. The appellant group alleged violation of the principles of a democratic state based on the rule of law (protection of trust aspect), proportionality, and equality.
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The FAP comprises a set of legal instruments, the parties to which are the Portuguese government and the International Monetary Fund (IMF). They
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