The legislator's freedom of choice versus the principle of non-retrogression

social integration income and the Constitution

Abstract

The current social insertion income is a social benefit aiming at realizing the right to social security and solidarity consecrated in Article 63, paragraph 3, of the Portuguese Constitution. The benefit was created in 1996 with the following designation: minimum guaranteed income (RMG). However, the attribution of this benefit has raised some controversy in Portuguese society. In this sense, several political parties have been calling for its modification or repeal since its creation. These appeals were heard in 2003 when the XV Constitutional Government revoked the RMG and in its place created the social insertion income (RSI). However, the sovereign debt crisis and the fight against the high public deficit motivated new changes in the RSI that sought to limit the scope of entitlement. These legislative changes led to several constitutionality review cases where the possibility of applying the principle of no social regression was discussed. Although the Constitutional Court did not follow this understanding, it declared the legislative changes unconstitutional as they violated fundamental principles of the Constitution, namely the principles of human dignity, proportionality, and equality as stated in articles 1, 2, and 13 of Portugal’s fundamental law.