Article 34 - Social security and social assistance
Article 45 - Freedom of movement and of residence
Key facts of the case:
The Public Prosecutor’s Office sought to obtain a declaration pertaining to the illegality and the unconstitional nature of Article 6 (1) a) and b) and (4) in Law 13/2003 of 21 May in the amended version of Decree Law 133/2012 of 27 June that states: 1 – Recognising the right to the social integration income depends upon the applicant, the date on which the application is made, and the full compliance with following requirements and conditions: a) Has been a legal resident in Portugal for at least one year if the applicant is a national citizen or a citizen from a European Union Member State, a State that belongs to the European Economic Space or a third-country State that has entered into an agreement with the European Union in terms of the free circulation of its citizens within the EU; b) Has been a legal resident in Portugal for the last three years if the applicant is a third-country national of a State not mentioned in the previous point. (…) 4 – The provisions laid down in 1 - a), b), e), f), g), i), j) and k) are applicable to the immediate family members of the applicant with the exception of the minimum term of legal residence of children less than 3 years of age. It should be clarified that the Social Integration Income (RSI) is a temporary cash subsidy which is variable according to the applicant’s income and immediate family members. It is a sort of minimum income covering basic needs. In grounding its general refutation of the rules given above, the Public Prosecution namely referred to the Article 63 (1) in the Portuguese Constitution that states that Everyone shall have the right to social security, where the word “everyone” (“Todos”) denotes the universal nature of the fundamental right to social security. Therefore, in accordance with the letter and spirit of the Constitution, the right to receive the Social Integration Income is universally applicable to all Portuguese, foreigners and stateless persons who are found or reside in Portugal.
Outcome of the case:
On the contrary, the Court declared Article 6 (1) b), and (4) to be unconstitutional because these provisions breached the principle of proportionality, when it was demanded that recognising the right to the RSI depended upon at least three year of legal residence for the citizens from a third country not included in Article 6 (1) a).
This principle [of placing Portuguese nationals, foreign nationals and stateless persons on an equal footing, as stated in Article 15 of the Constitution] takes on special relevance with respect to the categories of citizens [nationals from a European Union Member State, a State that belongs to the European Economic Space or a third-country State that has entered into an agreement with the European Union in terms of the free circulation of its citizens within the EU]. This is done taking into account that within the framework of Union law, the principles of non-discrimination based on nationality and national status are upheld, and that Article 34(2) in the EU Charter of Fundamental Rights expressly lays down that Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. Together with the provision in Article 45(1) in the same Charter, whereby Every citizen of the Union has the right to move and reside freely within the territory of the Member States, it is evident that this category of foreign citizens enjoy special status that tends to equate them with national citizens, bearing in mind the legal-constitutional framework and the primary law of the European Union. Nevertheless, it should also be borne in mind that taking into account European Parliament and Council Directive 2004/38/EU of 29 April 2004, and the interpretation made by the CJEU, the Constitutional Court concluded that, there is no doubt that European Union law tolerates a differentiated system between citizens from the European Union and national citizens from the host Member State, in terms of the benefits of the non-contributory scheme that ensure minimum means of subsistence.