Riga 2023

On 26-27 June 2023, the Italian Council of State and ACA-Europe organised the colloquium “Services to Citizens and Social Rights” in Naples, Italy.

The Naples seminar, with which the two-year Italian Presidency of ACA-Europe ended, examined the approach of the Supreme Administrative Courts of the Member States to so-called social rights. The Seminar was in line with the previous seminars organised by the Italian Presidency focused on “horizontal dialogue”, and represented the natural conclusion of the path of in depth –analysis of the substantive and procedural systems of the different Member States.

 

The seminars of the Italian Presidency – it should be remembered – explored both general and sectoral topics. Among the first, the effectiveness of the protection pursued by the various procedural remedies provided for in national legal systems; the guiding function of administrative judge’s rulings vis-à-vis public administrations; the methods of interpretation of the law, the nomophylactic function of SACs; the use of general principles and clauses, including those of European derivation. Among the seconds: judicial review of decisions of regulatory authorities and, in particular, social rights.

The Naples Seminar focused on rights that are not harmonised by EU law and, however, of fundamental importance for the values of European citizenship, even more so after the health emergency and the energy crisis.

The term “social rights” identifies the category of rights whose implementation requires the legislator to intervene, introducing and regulating benefits for citizens: what then makes citizens entitled to a claim against public authorities, in relation to the actual implementation of those benefits. They are therefore “claims of benefits”, which for this reason differ from the more traditional “rights of freedom” and which do not always receive the same protection as the latter. “Social rights” cover areas such as health, work, education, the right to housing, which do not fall under the direct competence of the European Union. This means that the laws of the various countries are not homogeneous and, therefore, the recognition and intensity of the protection of these rights is likely to take place in very different forms.

The issue of social rights has taken on considerable importance in the current historical moment for the legislator due to a plurality of reasons. First, the financial economic crisis of 2012, the increasing migratory flows, the intensification of inequalities caused by globalisation. Finally, the COVID-19 health emergency and the outbreak of the war in Ukraine with all the crises that followed were added to these factors: humanitarian, energy, economic, geopolitical.

Several points of interest emerged from the replies to questionnaire:

  • in the Member States there is uniformity in the sources governing the different social rights;
  • the main social rights are provided for by the Constitutions, and this is an almost necessary choice (taking into account their growing importance also for the protection of traditional rights, regulated since the eighteenth-century Constitutions, starting with the American and French constitutions);
  • the dating of most constitutional texts has led several Member States to amend them to allow the entry of new rights, such as the ‘right to the environment’;
  • in some Member States, although there has been no legislative recognition of new rights, judicial authorities have adopted criteria for interpreting the legal provisions appropriate to make their protection effective;
  • all countries have said that fiscal constraints and measures to contain public spending to cope with periods of crisis can limit the effectiveness of social rights. However, although in almost all countries there is an intangible core of social rights that cannot be sacrificed even in a situation of financial containment.

From the procedural point of view, it emerged that:

  • in no Member State have the special support measures introduced to address the emergencies of recent years (pandemic, energy crisis, banking and financial crisis) been accompanied by special rules which have altered the ordinary division of jurisdiction between administrative courts and other judges in the areas concerned.

From the point of view of the allocation of competences in the area of social rights, at the level of non-state territorial government, most Member States stated that non-state territorial levels of government have administrative and regulatory powers, although, in most legal systems, they can only admit, exclude or condition access to social benefits in certain sectors. In a few countries, it has emerged that territorial levels of non-state government have the power to admit, exclude or condition access to social benefits in any sector, without limitation.

The examination of the questionnaires allowed to identify various profiles that were the subject of further, profitable and stimulating in-depth analysis during the two thematic round tables and in the third dedicated to the examination of case-law.

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