Akritas Kaidatzis
Assistant professor, Law School, Aristotle University of Thessaloniki
Abstract
From 2010 to 2018, Greece has been under fiscal adjustment programs, entailing various austerity policies (cuts in payments and pensions; raises in taxation; privatization and deregulation). Greek governments, especially after 2015, pursued various policies to combat poverty and social exclusion –the rise of which has been the immediate consequence of austerity policies. Free health services for uninsured persons and benefits for poor families are at the core of such policies. At around the same time, beginning in late 2013 and culminating in 2018, Greek courts, in a series of high profile and broadly discussed decisions, contested the constitutionality of austerity policies. Their focus has been predominantly on cuts in payments for civil servants and in pensions, which they held unconstitutional. However, to implement their decisions, the Greek government needs to divert large sums of public funds (actually, several billion euros) from anti-poverty policies to payments’ and pensions’ raises. Thus, although intended as anti-austerity acts, the courts’ decisions are effectively anti-anti-austerity acts, since they risk governmental policies to combat poverty. They will make better-off people from the middle classes, people who already had a stable job or a pension, including judges themselves, and they will make worse-off people from the lower classes, the most needy and poor. The question, then, is: Who decides? Since every decision on anti-austerity policies also entails a decision on allocation of (scarce) resources, the question is who is justified to decide which anti-austerity policies have priority over others. Judges or elected officials?
I. Introduction: Judicial and political contestation of austerity policies
From 2010 to 2018, Greece has been under fiscal adjustment programs. Several other countries around the world have had the same experience. Austerity policies are an essential feature of any such program, involving, among others, cuts in payments and pensions, and raises in taxation. The cumulative effect of such policies has been a declining standard of living for large parts of the population.
It is rather obvious that austerity policies are in tension with the protection of social and economic rights. In many countries, Greece among them, such rights are constitutionally entrenched. So, those affected by austerity policies often claim that these policies are unconstitutional. Some of them may appeal to courts, in order to enforce their constitutional rights against legislation implementing austerity policies. Note, however, that, in practice, not everybody can appeal to courts, in the sense that not everybody has the necessary resources –information, money, time, and energy– to do so. As a practical matter, then, the judicial contestation of austerity policies is only available to some, but not all, of those affected by such policies.
Of course, bringing lawsuits before courts is not the only, not even the most effective, way to fight austerity. Notwithstanding the judicialization boom of recent decades, politics still remains the main field for contesting unpopular public policies. To most people affected, austerity is, above anything else, an unsound policy reflecting a deeply unjust choice (to put it simply, the choice to burden the middle and lower classes instead of the wealthier part of society). That specific austerity measures are also said to be unconstitutional is nothing more than an “added bonus,” an additional argument in the political fight against austerity. Litigation, then, is only one form of contesting austerity, which can also take several other forms. People affected may protest, or campaign, or organize in grass-roots movements (possibly also engaging in acts of civil disobedience)[1] against the implementation of austerity policies. They may try to influence party politics and shape the political parties’ electoral agendas in an anti-austerity direction. And, of course, they may use the most effective weapon they have: their vote. Voters can, and very often do, punish electorally those parties and politicians who consented to austerity policies and reward parties and politicians that promise to end austerity.[2]
Again, as with judicial action, not everybody can undertake political action. The voice of those politically (e.g. non-citizens) or socially excluded often remains unheard. Information, money, time, and energy is also needed for most political action. However, there are several forms of political action, at least some of which are rather easily accessible to most people. So, it seems reasonable to assume that, among those affected by austerity policies, more of them are likely to undertake (some kind of) political action rather than appeal to courts.
In this paper, I explore the situation where there is a discrepancy between the outcomes of judicial and political contestation of austerity policies. I argue that this has been the case in Greece since 2015. The SYRIZA-led Greek government has pursued an apparently paradoxical mix of public policies. On the one hand, it basically maintained the austerity policies prescribed by the fiscal adjustment programs that all governments since 2010 have consented to. But, on the other hand, it also developed novel welfare programs for the poor and socially marginalized –many of which, victims of austerity themselves.[3] There is, of course, some irony in this. Nevertheless, these government-initiated welfare policies can plausibly be seen as an expression of (at least, some kind of) anti-austerity politics. They intend to fight austerity by mitigating some of its consequences for some of the people affected.[4] Importantly, these welfare policies have been the outcome of political, rather than judicial, contestation of austerity. No judicial decision and no court obliged the government to take measures to protect the poor and marginalized members of society. That has rather been an expression of SYRIZA’s left-wing politics on welfare, appealing to its left-of-the-center constituency.[5]
At around the same time, the Greek judiciary initiated its own anti-austerity politics. In a series of high-profile cases, the most important of which decided after the governmental change in 2015, Greek highest courts found that cuts in civil servants’ salaries and in pensions were unconstitutional.[6] Thus, the judiciary questioned part of the austerity package prescribed by the fiscal adjustment programs.[7] As with the governmental anti-poverty policies, these judicial decisions are also a means to fight austerity by reversing some of its consequences for some of the people affected.[8] What is important is that different people benefit from governmental policy-making and from litigation. While the governmental policies focus on the poor and marginalized, the main beneficiaries of the judicial decisions are civil servants, that is, people with a stable job and a decent salary,[9] and pensioners with a decent pension (since lower pensions were exempted from the cuts). Thus, the judiciary’s anti-austerity politics effectively aim to restore, at least some of, the middle classes’ lost income.
In an ideal world, this would be a perfect deal: governmental policy-making supports the poor and socially excluded, while litigation benefits the middle classes. In reality, budgetary constraints make it impossible to have both. Budgetary resources are, by definition, limited; even more so, under fiscal adjustment programs. Very often, the government has to make difficult choices: should it prioritize the implementation of its anti-poverty policies or the enforcement of judicial decisions annulling cuts in payments and pensions? These are emphatically, and profoundly, political choices. The question that arises, then, is whether, and to what extent, the judiciary may legitimately decide on the allocation of scarce budgetary resources.
The paper proceeds as follows: In the next section, I discern between two competing anti-austerity strategies, one that is status-quo preserving and another that seeks to protect the most needy and poor. In the two sections that follow, I juxtapose the Greek government’s anti-poverty policies with the Greek judiciary’s constitutional jurisprudence on cuts in payments and pensions. Finally, in the two concluding sections, I argue that, under conditions of austerity, the judicial enforcement of social and economic rights might end up benefiting one privileged minority, i.e. middle classes with privileged access to courts, over, and to the detriment of, other unprivileged minorities, notably the socially excluded and poor. When this is the case,[10] it seems that the courts do not perform their alleged counter-majoritarian role anymore (i.e. protect minorities’ rights from governmental majorities) but, on the contrary, obstruct the government from protecting vulnerable minorities. In other words, the judicial contestation of austerity may have a distortive, or even perversive, effect in the overall anti-austerity politics. I conclude with the claim that, under such circumstances, the allocation of scarce resources, that is, the choice between competing social policies, is best left to politics. The judiciary, then, should in such cases engage in self-restraint and decline to decide that a specific austerity measure is unconstitutional, if the enforcement of such a decision might impede the implementation of other anti-austerity policies.
II. Anti-austerity strategies: status quo preserving or protecting the poor?
It seems that, in an ideal-type way of speaking, there are two main strategies of anti-austerity politics. The first strategy is defending the status quo (see Sajó 2006). This is a negative, or defensive, strategy. Those who pursue it, basically, want things undone. They take action to obstruct the enactment of austerity measures and, once enacted, to have them repealed or annulled or, if they fail to do so, to resist their implementation through any means available (including acts of civil disobedience). Their aim is to restore the income and, more generally, the standard of living of those affected by austerity measures such as cuts in payments and pensions and raises in taxation. This strategy mainly benefits people who, before the enactment of the austerity measures, already had a stable income and enjoyed a more or less decent standard of living. Civil servants and pensioners are among those relatively privileged –at least, in relation to people with no stable income, unemployed, poor, homeless, or otherwise socially marginalized. It wouldn’t be entirely inappropriate to say that it is mainly (although, certainly, not exclusively) people from the middle classes that benefit from the status quo preserving strategy.
The second strategy is protecting the poor. This is a positive, or aspirational, strategy. Those who pursue it want things done. They do not simply want restoration of the status quo ante and, thus, of pre-existing inequalities. They push for public policies which ensure that nobody lacks the bare minimum for living: food and clothing, housing, health care. As it is obvious, this strategy focus on the most vulnerable members of society: not only the immediate victims of austerity (e.g. people who lost their job or their house) but also those who already were socially marginalized before. The poor and needy, the homeless, the unemployed and the working poor are among the unprivileged that benefit from the protecting-the-poor strategy.
It is important to note that these two strategies are not mutually exclusive –quite the contrary. They can perfectly be pursued in tandem. After all, these are only ideal types, and it is rather improbable that we find a crystal-clear distinction between the status quo preserving and the protecting-the-poor strategies in the real world. Most people would spontaneously express their support to both revocation of austerity measures and protection of the poor. Nevertheless, when it comes to the practical realization of each strategy, their differences become obvious.
First, although both strategies have a constitutional footing, there is a different concept of constitutionalism underlying each of them. The status quo preserving strategy sees the constitution as a stronghold, that is, in a defensive (or negative) way. The constitution is supposed to protect acquired rights against encroachment, therefore it restraints politics. Most relevant here are the principle of legal certainty,[11] the principle of non-retrogression[12] and the protection of economic (rather than social) rights, especially property or property-like rights. On the other hand, the protecting-the-poor strategy sees the constitution as an aspiration, that is, in a creative (or positive) way (see, e.g., Dorf 2009; West 1993). The constitution calls for social protection of those in need, therefore it enables politics. Most relevant here is the pro-active realization, rather than mere negative protection, of social (rather than economic) rights, such as rights to welfare, health care, housing, and the like.[13]
Second, although both strategies may be pursued by both political and legal means, the latter, and especially litigation, are more suitable and more effective for the status quo preserving rather than for the protecting-the-poor strategy. There is an obvious procedural reason for that: Preserving the status quo is a reactive endeavor, it involves challenging enacted legislation which threatens that status quo. This can be achieved either through politics, when a majority repeals previous legislation, or by litigation, when courts strike down or disapply that legislation. On the other hand, protecting the poor is mainly proactive, it necessitates the enactment of legislation.[14] Courts, generally, have some kind of power to challenge existing legislation, but they normally do not have the power to legislate themselves.
For their successful implementation, both strategies necessitate resources, especially budgetary but also administrative or otherwise. Unfortunately, the available resources are always limited and, especially under conditions of fiscal adjustment, suffocatingly so. Inevitably, in practice, those with the power of the purse need to make choices and set priorities. Should priority be given to the preservation of acquired rights of the middle classes or to support for the poor and needy? The constitution is inconclusive here, as, in one way or another, it usually protects both the economic rights of the former as well as the social rights of the latter. It seems, then, that the question is a matter of social policy: What kind of social policy or, more accurately, what mix of social policies can a polity afford?
III. The Greek government’s protecting-the-poor strategy
Due to Greece’s sovereign debt crisis, the government of the center-left PASOK (Panhellenic Socialist Movement) led by Giorgos Papandreou succumbed to pressures by the institutions representing its international creditors –European Commission, European Central Bank, and International Monetary Fund, or the so-called “troika”– and consented in May 2010 on a fiscal adjustment program. The program entailed a great deal of austerity policies, from cuts in payments and pensions to raises in taxation to privatization of public assets and enterprises and deregulation of the labor market.
The program has been extremely unpopular, and the governing party paid harsh political and electoral price. Papandreou’s government had to resign in November 2011, and a broad coalition government was formed under the technocrat Loukas Papadimos, a former central banker. Papandreou himself had to resign from his party’s leadership, and PASOK saw its share in votes sink to unprecedented depths in both 2012 elections and, especially, in the two 2015 elections.[15]
On the other hand, both Antonis Samaras, leader of the center-right ND (New Democracy), and Alexis Tsipras, leader of the left-wing SYRIZA (Coalition of the Radical Left), won the 2012 and 2015 elections, respectively, by promising an end to austerity by either completing or exiting the fiscal adjustment programs. The Samaras coalition government formed in June 2012 did not quite live up to its promise. So, in January 2015, ND lost the elections, and the first Tsipras government was formed, backed by SYRIZA and the right-wing ANEL (Independent Greeks). Despite their grave differences in other issues,[16] both parties were united in their strong opposition not only to austerity but also to fiscal adjustment as such. Note also that both parties have a strong welfarist agenda, even if in the diverging ways that are typical for parties of the Left and of the popular Right.
Initially, the Tsipras government attempted to challenge fiscal adjustment head on. It even called for a referendum in July 2015, where the Greek electorate rejected the continuation of the fiscal adjustment program by a large margin. However, a few days after the referendum, the government capitulated and was forced to consent to an updated program, maintaining most of the austerity policies of the previous programs. This caused a major inner-party disagreement within SYRIZA, with several of its MPs leaving the parliamentary faction to become independent. In late August, the Tsipras government resigned, and national elections were called for September 2015. SYRIZA won again the elections –most probably because, this time, no party could reliably promise to end austerity anymore– and reaffirmed its governmental coalition with ANEL.
From that point on, the second Tsipras government tried its best to reconcile the implementation of the fiscal adjustment program and, hence, of austerity with as much as possible, within stringent budgetary limitations, support for the most vulnerable victims of austerity. These welfare policies can be seen as an exchange, or reward, for the faithful execution of the fiscal adjustment program. The best the program is implemented, the more fiscal space the government gets to provide for welfare policies. Taken as a whole, the various measures taken to support the most vulnerable victims of austerity rather clearly express a protecting-the-poor approach. Although many measures have a broader personal scope, their focus is nevertheless the poor and needy.
Some of the most emblematic of such welfare policies enacted into law during the period 2015-2018 are the following:
· February 2016: Free access to public health services for uninsured persons (Art. 33 of Law 4368/2016). Estimated cost: 100 million euros yearly.[17]
· May 2016: Social solidarity benefit for uninsured persons over 67 years old (Art. 93 of Law 4387/2016). Estimated cost: 81 million euros for 2017, 94 million euros for 2018 and 107 million euros yearly from 2019.
· May 2017: Housing benefit for low-income households (Art. 3 of Law 4472/2017). Estimated cost: up to 600 million euros yearly.
· January 2018: Raise in the child support benefit (Art. 214 of Law 4512/2018). Estimated cost: 260 million euros yearly.
· June 2018: Social solidarity income for poor households and homeless people (Art. 235 of Law 4389/2016 and joint ministerial decision 33475/1935/2018). Estimated cost: 760 million euros yearly.[18]
IV. The Greek judiciary’s status quo preserving strategy
Right from the beginning of the fiscal crisis, litigation has been an essential part of the social mobilization against austerity in Greece. Both trade unions, professional associations or other organized groups as well as individual citizens filed a huge number of lawsuits against the implementation of austerity measures. By far, most of them were brought by civil servants and pensioners, both individually and collectively, represented by their unions or associations, claiming that legislation imposing cuts in salaries, pensions, benefits or other payments is unconstitutional.
A few words on the Greek judicial system
Before turning to the judicial response to this litigation overload, a few words should be said about the Greek judicial system. In Greece, there is neither a constitutional court nor a single supreme court. There are three highest courts at the apex of the respective judicial branches: The Council of State, for administrative law cases; Areios Pagos, for civil and criminal law cases; and the Audit Court, for fiscal law cases. There are also a few special courts whose decisions are not appealable; most relevant here, the Special Court of Article 88, para. 2, of the Constitution (hereinafter, the Article 88 Court) which reviews changes in judges’ salaries and pensions law.[19]
The Greek system of judicial review of legislation is basically diffuse, in the sense that every single court, even the lower ones, may refuse to apply legislation, if they find it unconstitutional (or contrary to European or international law); accordingly, no court has the power to annul primary legislation, i.e. parliamentary laws (statutes). The only exception being the Special Highest Court of Article 100 of the Constitution,[20] which may review a specific statute provision with the power to annul it only in the (very rare) occasion when two of the highest courts have come to conflicting opinions as to its constitutionality. However, secondary legislation, that is, administrative laws, may be annulled; this power is reserved to the Council of State. Given that, in our days, most statutes necessitate secondary legislation to be effectively implemented, this power renders the Council of State a privileged player within the Greek system of judicial review, since it may effectively kill a statute by annulling its enabling secondary legislation. Moreover, through the procedure of “model” or “pilot trial”, significant cases from the lower administrative courts may be referred to the Council of State. All in all, the Greek system of judicial review of legislation is a mixed one, neither purely diffuse but not yet concentrated either, with a central role for the Council of State within it (see Kaidatzis 2013).
The landscape of litigation contesting austerity
To demarcate the landscape of litigation contesting austerity policies, one has to discern between two categories of cases. First, there are cases challenging secondary legislation enabling the imposition of specific austerity measures. These are brought before the Council of State, most usually by unions or associations representing groups of affected persons. If successful, resulting in annulment of the secondary legislation on constitutional grounds, this kind of litigation may effectively kill the statute imposing the challenged measure. The government, then, can respond by either proposing a new bill reformulating the challenged policy in a way that (at least, is attempted to seem like it) takes into account the court’s opinion; or by abandoning that policy altogether. Second, there are individual cases challenging, on constitutional grounds, the specific implementation of an austerity measure upon the claimant. These are typically brought before lower administrative courts by taxpayers, civil servants or pensioners, or before the Audit Court by civil service pensioners. This kind of litigation is successful when the court refuses to apply legislation it found unconstitutional (e.g. a salary cut), and orders the state to make good for the damage caused by its application (i.e. to pay the claimant back what was cut from her salary). Normally, such a decision is only effective in the case at hand and only for the actual claimant. The legislation found unconstitutional remains valid and in full force, unless also found unconstitutional in another case (again, by a decision only effective for that other case) and so on. Another, or even the same, court in another case, especially under different circumstances, may find that this very same legislation is not unconstitutional. Initially, occasional decisions that find a measure unconstitutional do not worry the government, which can always hope that courts will rule differently in other cases, or that appellate courts and eventually the Council of State will reverse the ruling. However, when there is a stream of similar cases in lower courts (which is typical for cases concerning cuts in payments or pensions), there is a high probability that a representative case be referred to the Council of State to be tried in model trial. If the Council of State finds the measure unconstitutional, the effective force of its decision is, obviously, far greater. Formally, decisions taken in model trial are not binding for cases other than the one decided. However, they signify that, unless solidly reasoned to the contrary, decisions by lower courts will henceforth follow the “model” ruling. This, then, effectively (although not formally required) forces the government to consider either repealing, or at least revising, the challenged legislation.
To sum up, litigation contesting austerity measures is mainly distributed as follows: Secondary legislation is challenged, mostly by unions and associations, directly before the Council of State. Individual cases of (mostly) taxpayers, civil servants or pensioners challenging (mainly) raises in taxation or cuts in payments or pensions are brought before lower administrative courts, often in the hope of a model trial in the Council of State. Individual cases of civil service pensioners challenging cuts in their pensions are brought before the Audit Court. There is also a special sub-category of individual cases of judges challenging cuts in their salaries or pensions, which are brought before the Article 88 Court.
One can roughly discern three periods in the Greek judiciary’s response to litigation contesting austerity: the period of self-restraint (2010-2012); the period of moderate contestation (2013-2014); and the period of activism (2015-2018). These roughly correspond to the time span of the three fiscal adjustment programs, the first agreed in May 2010, the second in March 2012, and the third in July 2015. Interestingly, both the second period of judicial contestation and the third period of judicial activism came about after the 2012 and 2015 national elections, respectively, when the anti-austerity sentiment found ample expression. Of course, this could be just a coincidence; correlation does not imply causation. However, one would be tempted to assume that, perhaps, there might be a political explanation for this gradual escalation of judicial politics towards austerity, namely that courts, whether intentionally or not, tended to align themselves with a strongly anti-austerity public as expressed in successive elections.
Judicial self-restraint (2010-2012)
In the years immediately after the first fiscal adjustment program (May 2010), when the sovereign debt crisis still came as a shock to both the Greek society and the judiciary, Greek courts have been reluctant to find that austerity measures prescribed by that program are unconstitutional. Despite sporadic lower courts rulings to the contrary, it seems that everybody pretty much anticipated the Council of State’s ruling on the matter.
In what came to be one of the most prominent cases in its history, the Council of State heard in November 2010 in full plenary session a lawsuit brought by dozens of claimants –trade unions, professional and other associations, and individuals– with the motion to annul secondary legislation enabling the implementation of several austerity measures, on the grounds that both the fiscal adjustment program as such as well as the various austerity measures are unconstitutional. The court did not issue its highly anticipated verdict until 15 months later, in February 2012. In one of its most widely criticized decisions (Memorandum I), and one greatly frustrating both the general public and the legal community (the bar was among the motivating forces behind the lawsuit), the Council of State rejected the motion for annulment in toto.[21]
The opinion of the court in Memorandum I –extending over the most unusual length of 129 pages–[22] can be seen as a study in judicial deference. The court goes to great lengths quoting the bill’s explanatory memorandum and related reports, and takes great pains to stress the notion of public interest in times of fiscal crisis. Its main reasoning can be summarized as following: Both the Greek Constitution and the European Convention on Human Rights protect acquired rights to payments, pensions or other benefits; however, they do not completely rule out the possibility of cuts, if these are sufficiently justified by pressing necessities and designed in a way that fairly distributes the burden among the population. The cuts prescribed by the (first) fiscal adjustment program seem to meet these conditions; however, anything above that would be constitutionally highly questionable. This latter proviso was kind of a warning to the legislature, and it was probably the best that the claimants got from this first seminal Council of State’s decision.
Moderate judicial contestation (2013-2014)
Almost immediately after Memorandum I, the broad coalition government consented on the second fiscal adjustment program (March 2012), which reaffirmed existing austerity measures and prescribed additional ones, including additional cuts in payments and pensions. This frustrated the electorate, as became apparent in the May 2012 elections, when the major parties reached historical lows and were unable to form a government. New elections were held in June 2012, won by Samaras’ ND, partly due to its strong anti-austerity rhetoric. However, the coalition government formed under Samaras did not quite live up to its promises; instead, it proposed legislation for the faithful implementation of the program. The main implementing statute (Law 4093/2012) was enacted in November 2012 despite stormy reactions both within and, especially, outside the Parliament.
It was only after that, that the Council of State decided to fulfil the warning made in Memorandum I, albeit initially in a very cautious way. The Council did find, in a couple of cases, that specific austerity measures were unconstitutional, but such decisions were issued only in rather lengthy intervals and, importantly, they did not have serious budgetary implications. Most prominently, the Council of State ruled, in September 2013, that a redundancy scheme for civil servants close to age of retirement is unconstitutional[23] and, in June 2014, that the restriction of the trade union’s right to resort to arbitration is also unconstitutional.[24] Up to that time, the Council of State refrained from finding any cuts in payments or pensions unconstitutional, holding on its ruling in Memorandum I.
The first decision not coming from a lower court to ever question cuts in payments and pensions came in late December 2013. The Article 88 Court found that, as applied to judges, the cuts in civil servants’ salaries imposed by Law 4093/2012 were unconstitutional.[25] The court invoked a clause in the Greek Constitution that explicitly provides for a special remuneration status for judges.[26] Simply put, the point is that judges should be exempt from salary cuts because of their special position within the polity. The court’s reasoning focuses on the protection of acquired rights rather than on social rights considerations. The decision was met with mixed reaction by both the legal community and the public opinion. On the one hand, it was criticized as self-serving:[27] Judges were the only group benefiting, while all other public sector employees had to suffer salary cuts. On the other hand, the decision was welcomed as the first one to defy budgetary considerations by contesting cuts in payments and, hence, as a first step eventually paving the way for similar decisions in other cases.
The latter expectation soon proved true. Six months after the Article 88 Court decision on judges’ salaries, the Council of State ruled in June 2014 that the cuts in civil servants’ salaries and pensions imposed by Law 4093/2012 were also unconstitutional as applied to armed forces and law enforcement employees.[28] What is interesting in that second seminal Council of State decision (commonly referred to as Uniformed civil servants) is that, as the Article 88 Court ruled for the judges, the Council of State also tried to single out this civil servants group on a constitutional footing. However, there is nothing in the Greek Constitution even remotely comparable to the judges’ remuneration clause. The court used, instead, a strong etatistic language to argue for the special role of the armed forces and law enforcement on the preservation of the state. Again, social rights considerations were not crucial for the court’s reasoning.
Six months later, in December 2014, the Council of State duplicated its decision. This time, the court ruled that the cuts imposed by Law 4093/2012 were also unconstitutional as applied to university professors.[29] The constitutional footing was a clause on the special civil servant status of university professors, which, however, makes no mention of their remuneration status.[30]
The impression one gets by these two decisions is that the Council of State has been rather reluctant to challenge the austerity policy of cuts in public sector salaries as such and in toto. The court only found unconstitutional part of that policy, i.e. to the extent that it involved certain groups of public sector employees, to which the court acknowledged special constitutional protection. At no point did the court give the impression, neither explicitly nor implicitly, that it meant its constitutional ruling to have a horizontal (for all public sector employees) and unconditional effect. On the other hand, the two decisions certainly left the possibility open for other so to say ‘privileged’ groups within public service to expect similar rulings.
At around the same time, also in December 2014, the Audit Council found that the cuts in pensions imposed by Law 4093/2012 were unconstitutional as applied to judges.[31] This time, and unlike the Article 88 Court decision, the Audit Court did not base its ruling on the constitutional clause on judges’ remuneration but rather challenged the cuts as such. This, as well as the language in which the decision was written, strongly implied that the court would most probably reach the same conclusion, if not for all pensioners, at least for certain groups among them.
Judicial activism (2015-2018)
The first half of 2015 has been a very intense, to say the least, period for Greek politics. The first Tsipras government attempted to challenge the fiscal adjustment program as such. This raised high expectations for a radical policy change among the Greek public –and perhaps, one can presume, among the judiciary as well. At exactly that time, the Council of State made a major breakthrough. In a least expected ruling, the court found in June 2015 that the cuts in pensions imposed by Laws 4051/2012 and 4093/2012 were unconstitutional.[32] The seminal Pensions decision was as far-reaching as it gets, since it did not single out any particular group of pensioners but involved all kind of pensions except civil service pensions, jurisdiction for which is reserved to the Audit Court. Besides, this time, social rights considerations were more prominent in the court’s reasoning.
This decision differed significantly from the previous ones, both from a quantitative as well as qualitative point of view. Quantitatively, the decision created expectations for a few million pensioners –far more than the few thousand or tens of thousands benefiting from previous rulings (judges, university professors, uniformed civil servants). The budgetary impact of the enforcement of the decision would be immense. Qualitatively, unlike the previous ones, this decision contested an austerity policy, cuts in pensions, at its core –not only marginally.
This has been indeed a radical decision. Needless to say, the decision was broadly hailed by the media, the public opinion and politicians, both from the majority and the opposition, alike. After all, wasn’t the end of austerity what everybody wished for? Apart from its actual ruling, the Pensions decision did something even more important: it signaled that the end of austerity might be near. As a matter of fact, that is what the government of the day, at that time still, professed. In view of the timing of the decision, one could possibly even argue that the Council of State offered the government, perhaps consciously, perhaps not, a bargaining chip against its creditors.[33] [34]
Yet, the negotiations did not end well for the government, which in July 2015 capitulated and was made to accept a third fiscal adjustment program. After the September elections, the second Tsipras government went on to execute that program, while at the same time pursuing a strong anti-poverty agenda (see supra, section III).
The political U-turn regarding fiscal adjustment and the ensuing disillusionment did not have any impact on judicial politics towards austerity. Greek courts kept on with, or even intensified, their efforts to deconstruct that particular part of austerity policies that involved cuts in payments and pensions, in line with the Pensions decision of the Council of State. In a series of decisions between 2015 and 2018, both the Council of State as well as the Audit Court and Article 88 Court held that several legislative measures affecting civil servants or pensioners are unconstitutional.
In December 2015, the Audit Court ruled that pension cuts imposed by Law 4093/2012 on doctors of the national health system were unconstitutional.[35] Again, the decision left it open for other groups within civil service to expect similar rulings. In February 2017, it ruled that the pensioners’ solidarity levy imposed by Law 3865/2010 on all public service pensioners receiving over 1.400 euros a month is unconstitutional.[36] Similarly, in June 2018, it held that all cuts imposed by Law 4093/2012 on public service pensions are unconstitutional.[37] Note that both latter decisions have a horizontal effect, in the sense that they are not restricted to certain groups of public service pensioners.
In May 2016, the Council of State found that legislation enacted after the Uniformed civil servants decision, partly raising back salaries in the armed forces and law enforcement (Law 4307/2014), was still unconstitutional, because salaries were not raised back to the level they have been in 2012.[38] In February 2018, it held that salary cuts imposed by Law 4093/2012 on doctors of the national health system were also unconstitutional.[39] In March 2018, it held the same for cuts on technical university professors.[40]
Finally, also in March 2018, the Article 88 Court held that both the abolishment, by Law 4093/2012, of a benefit as well as cuts imposed by Law 4387/2016 on judges’ pensions are unconstitutional.[41] Remarkably, this has been the first ruling to find legislation enacted after 2015 unconstitutional.
What the courts did not do
It seems, then, that in both the moderate contestation (2013-2014) and the activist periods (2015-2018) the Greek judiciary did quite a lot to protect the social and, especially, economic rights of certain relatively privileged social groups, mostly civil servants with some kind of special status, including the judges themselves, and pensioners. This has been the Greek courts’ fair share in the fight against austerity. What the courts did was quite remarkable. Nevertheless, it would be useful to compare what they did with what the courts did not do. Mind that this is just a factual observation; not an evaluative judgment.
It seems, then, that, while the Greek judiciary had a substantial contribution in the fight against austerity, its contribution in the fight against poverty (which has been rising because of austerity) was close to inexistent.[42] No litigation worth mentioning has taken place and, thus, no decisions have been issued benefiting the most vulnerable and needy members of society, such as the homeless, the unemployed or the working poor. It is not that the courts did not want to advance a protecting-the-poor strategy; it is just that they did not got the chance to do so.
Housing is a telling example. Homelessness skyrocketed during the fiscal crisis. The right to housing is explicitly protected by the Greek constitution.[43] Yet, in eight years of fiscal crisis, Greek courts did not get the chance to enforce that right in any meaningful way.[44] No Greek Grootboom, or anything even remotely close to that, is to be found in the case-law. Again, there is nobody to blame here. How can we blame courts for not doing something, if relevant cases have not come before them? But that exactly is the point: such cases only rarely, if ever, find their way to court. Homelessness is a social problem that is typically addressed by political rather than judicial means. It involves the design and implementation of a proactive housing policy, requiring legislative and administrative action. Apparently, the problem will persist if the legislature remains inactive. Courts, however, are only under exceptional circumstances, if ever, in a position to meaningfully review legislative inaction.
Another example might be even more telling, this one involving legislative action rather than inaction. In 2012, and as part of the austerity package of the second fiscal adjustment program, legislation was enacted which provided that: (a) the minimum wage is set by law, and not by collective bargaining anymore; (b) the minimum wage for workers is set at 586 euros a month;[45] and (c) the minimum wage for workers under the age of 25 is set at 511 euros a month. This was what came to be known as the “sub-minimum wage”. What we have here is legislative action that diminishes pre-existing social protection. The minimum wage rule advances a protecting-the-poor strategy, since it aims to fight the phenomenon of the working poor. The sub-minimum wage is an exception to that rule, imposed by legislation. Here, the status quo preserving strategy, i.e. to abolish the exception and restore the rule, would also be protective for the poor. The status quo preserving strategy, as we have seen, is particularly appropriate for the courts. They just need to review legislation (as opposed to legislative inaction) on constitutional grounds, something the courts know well how to do. Yet, Greek courts did not challenge the legislation on sub-minimum wage.
This is even more striking, if one considers that, among all austerity measures, the sub-minimum wage is perhaps the single most obviously unconstitutional. The Greek Constitution contains a clear-cut clause providing for equal pay for work of equal value.[46] The sub-minimum wage rule is, rather clearly, in breach of that clause, since it allows for unequal pay of workers of different age. Moreover, one could also argue that setting the sub-minimum wage at 511 euros, below the poverty line (586 euros) –in other words, by legalizing working poorness– is an infringement of the right to work, also explicitly protected by the Greek Constitution,[47] or of other social protection clauses.[48]
Once more, there is nobody to blame here. Greek courts did not find the sub-minimum wage unconstitutional, simply because they didn’t even get the chance to review the legislation that imposed it. This should come as no surprise. When your monthly income is 511 euros, you can barely afford, or even consider thinking of, litigation. Moreover, even if she could, why should a young worker in a 511 euros job want to go to courts? In most cases, these are only temporary jobs; nothing one would dream of keeping for long, and certainly not for life. The incentive to go to courts is particularly low, if the best one can expect is a meager monthly raise of 75 euros (the difference between minimum and sub-minimum wage) for a rather limited period and, in any case, until one turns 25 years old.
The fact remains, then, that the status quo preserving strategy that the Greek judiciary pursued towards austerity mainly benefited the middle classes and the relatively privileged. The poor and needy did not get much form the courts. It is through politics rather that through litigation that a protecting-the-poor strategy can be best pursued. Indeed, it was politics, and not any judicial ruling, that eventually lead to the abolishment of sub-minimum wage.[49]
The impact of what courts did
A court’s decision finding cuts in payments and pensions unconstitutional is one thing; enforcement of the decisions is another. Restoration of salaries, pensions or other benefits requires vast amounts of budgetary resources and legislation to appropriate them, and places a heavy strain on state budget. There is no question that pretty much everybody (save, perhaps, for certain ruling elites) thinks that enforcement of the decisions is justified and desirable: certainly those affected by the cuts, civil servants and pensioners; the media and the public opinion; even politicians, for the obvious electoral benefits that they may expect. However, there seems to be a discrepancy between what is politically desirable (and, according to courts, also constitutionally required) and what is fiscally sound, or at least feasible.
Caught in-between, the Greek government has been rather reluctant to propose legislation for the restoration of payments and pensions. Two statutes enacted in December 2018 are indicative of the scale of the budgetary strain that the complete restoration would produce. The first statute provides for a partial pay-back of a lump sum to specific groups of civil servants (judges, armed forces and law enforcement employees, professors, doctors and diplomats) and pensioners of the same groups, as a partial enforcement of the respective judicial decisions, with an estimated cost of 1,4 billion euros.[50] The second statute repeals cuts in pensions that had been enacted in 2016 and 2017, with an estimated annual cost between 2,7 and 2,9 billion euros from 2019 to 2022.[51] Apart from that, the government has so far refrained from enforcing the judicial decisions on cuts in payments and pensions.
The government has declared its position on the widely anticipated enforcement of decisions on cuts and payments in a pending trial before the Council of State. The trial deals with the abolishment, by Law 4093/2012, of an additional payment (holidays and feasts allowance, best known as the 13th and 14th salary) that was given to all public sector employees with a monthly salary of up to 3.000 euros, that is, to the vast majority of public sector employees. As in most similar cases, the claim made in this case is that public sector employees: (a) get paid back the sums of the payment they did not receive from 2013 to 2018, and (b) receive henceforth the payment annually. The government responded by asserting that the estimated cost for the pay-back would be 3,9 billion euros, while the annual cost henceforth would be 700 million euros.[52] This, according to a brief of the General Accounting Office submitted to court, would seriously impair “the credibility of the Greek public finance, the sustainability of the Greek public debt and the macro-economic stability of Greek economy”.[53] Moreover, according to a brief of the Ministry of Finance submitted to court, finding the necessary resources would inevitably necessitate either the imposition of tax raises or cuts on other social spending or, most probably, both.[54]
This, then, is the major catch with litigation on cuts in payments and pensions. Alas, we cannot have it all. Besides of its fiscal impact, enforcement of such decisions might very well also have serious social consequences as well, either on the general public, as a result of raises in taxation, or, most importantly, on the most vulnerable and needy, as a result of cuts in spending on welfare programs (such as those mentioned in section III). Effectively, then, there is a choice to be made. The choice to divert large sums of (necessarily, scant) budgetary resources to the enforcement of judicial decisions on cuts in payments and pensions unconstitutional. This, however, is a deeply and profoundly political choice.
V. Judicial enforcement of socio-economic rights and resource allocation
One basic objection to the judicial enforcement of social and economic rights is, as Frank Michelman has put it, that courts “reshuffle the most basic resource‐management priorities of the public household against prevailing political will” (Michelman 2003: 16). This inevitably raises democratic considerations. When the available resources are limited, as always seems to be the case, who gets to decide on their allocation? More precisely, to what extend may courts distort budgetary decisions made by the democratically accountable political branches? The objection is, of course, somewhat overstated. Judicial enforcement of first-generation negative rights also makes, more often than we tend to assume, budgetary demands (see id.). However, democratic considerations might be justified when the judicial enforcement of socio-economic rights tends to consistently benefit some social groups rather than, or even to the detriment of, others.
Empirical data seem to support the claim that, at least in some cases, judicial enforcement of socio-economic rights tends to benefit the relatively privileged middle classes rather than the poor and needy. As Mark Tushnet, summarizing various empirical studies, puts it:
“Initial studies suggested that members of the middle class secured judicial enforcement of their right to medications while poor people did not. The explanation was that middle class people knew how to hire lawyers and work through the legal system, whereas poor people had more difficulty doing so” (Tushnet 2018: 4).[55]
David Landau makes a similar claim, based on broad comparative law materials, with a focus on Latin America. He concludes that
“much of social rights enforcement is aimed not at the poor, but instead at middle- and upper-class groups. When courts in the developing world prevent pension reforms or salary cuts that would affect civil servants, when they order the state to give an expensive medical treatment or pay a pension to a middle-class professional, or when they force the state to raise subsidies for homeownership, they are deciding cases that help mainstream rather than marginalized groups” (Landau 2012: 191).
In the same vein, Amy Kapczynski, summarizing scholarship on the right to health litigation in Latin America, notes that “[t]he lion’s share of the benefits of these cases … will accrue to those who litigate –who are unlikely to be the very poorest”. More broadly, social rights litigation “benefits those in the ‘middle of the social spectrum’ because the poor have less access to courts” (Kapczynski 2019: 80). In an article on the right to health litigation in Brazil, provocatively entitled “Harming the poor through social rights litigation”, Octavio Ferraz concludes that litigation “unduly favors litigants (often a privileged minority) over the rest of the population”, as it “is likely to produce reallocation from comprehensive programs aimed at the general population to these privileged litigating minorities” (Ferraz 2011: 1643, 1646, emphasis added).
The same motive repeatedly comes up in case-specific studies, often concluding that “litigation can be seen as an arbitrary allocation of public resources by judicial bodies that are ill-suited for this task” (Prado 2013: 124). Mind that empirical evidence may not always be conclusive;[56] and one can plausibly argue that, under certain conditions, social rights litigation could be beneficial to the poor (see, e.g., Kapczynski 2019, Landau 2012, Prado 2013). The point is, however, that social rights litigation could also have and, as ample evidence shows, often does have the distortive effect of favoring the middle classes over, and to the detriment, of the poor.
The situation in Greece presented in the previous sections seems, at least in some respects, quite similar to that in Hungary in late 1990s, early 2000s. There, too, the Hungarian Constitutional Court held several cuts in pensions and benefits, part of a wider austerity program, unconstitutional. In an article, rather tellingly entitled “Social rights as middle-class entitlements”, András Sajó advances the idea that the Hungarian Constitutional Court’s social rights jurisprudence had favored the post-communist middle classes (Sajó 2006). He argues that the court chose to protect pre-existing entitlements, by adopting a rule-of-law approach to social rights, based on the principle of legal certainty. This approach “is concerned with safeguarding the status quo of the recipients in the name of social security (in expectations)” (id.: 95-96). Sajó calls this “a status-quo-preserving conservatism” (id.: 97), which results in “depriving society of resources needed by the poor” (id.: 91).[57]
In these and other similar cases, the problem seems to be that courts are prone to status-quo-preserving strategies, but the status quo is not necessarily, and not usually, fair. Austerity hits both the middle classes and the least advantaged alike. However, what the middle classes can win back through litigation might be a loss for the poor and marginalized, which, as it happens, are the most vulnerable among the victims of austerity. The loss becomes most apparent when scarce budgetary resources are diverted to the restoration of the income of middle classes instead of social programs for the poor.
VI. Conclusion
In this paper, I do not mean to argue against the judicial enforcement of socio-economic rights. Courts might be indispensable in protecting socio-economic rights, especially when the political branches neglect to do so. I rather make a much more modest claim. I claim that, when the political branches do have a reasonably articulated social protection program, for which significant budgetary resources are needed, then the judiciary should not distort this program by diverting the necessary resources to different social aims. Courts are not meant to make political choices of that range.
To put it in a rather simplistic way: When governments are unresponsive to any social needs, courts are justified to engage in activism, in order to save what they can from the constitution’s social provisions. When, however, governments try to respond to some social needs, courts should not compromise this, inherently political, choice nor try to substitute it with their own choice; in this case, they should rather exercise self-restraint.
When the Greek Council of State’s Pensions decision came out, Manos Matsaganis, one of the leading experts in social security, commented in an op-ed that the decision “constitutes a gigantic transfer of resources and rights in favor of the most well-off of today’s pensioners, and to the detriment of the poor, the unemployed and the younger generations.”[58]
Hit by austerity since 2010, Greece has experienced in the period from 2015 to 2018 what looks like a clash between opposing anti-austerity strategies. The government pursued a protecting-the-poor strategy by allocating significant budgetary resources to the social protection of the poor and marginalized. At the same time, an activist judiciary pursued a status quo preserving strategy, aiming at restoring at least part of the middle classes’ (basically, civil servants and pensioners) lost income. The enforcement of judicial decisions in favor of the middle classes would inevitably necessitate massive re-allocation of budgetary resources, eventually risking the realization of social programs for the poor. There is, then, a choice to be made: Should priority be given to the social protection of the middle classes or of the poor? This, however, is a profoundly political choice, which is best left to politics, rather than to the judiciary.
[1] As an example, during the fiscal crisis in Greece the movement “I won’t pay” (Den plirono) organized several public actions, from the refusal to pay street tolls to the obstruction of houses’ foreclosures. [2] In Greece, both New Democracy in 2012 and SYRIZA in 2015 won the national elections by presenting strong “anti-memorandum” electoral manifestos and promising to end austerity. Respectively, both PASOK in 2012 and New Democracy in 2015 lost the elections mainly because they did not live up to their promises to end austerity. See infra, section III. [3] See infra, section III. [4] A critic might object that such welfare policies do not question austerity as such, which is responsible in the first place for much of the poverty and social exclusion that the welfare policies try to fight. In other words, such policies only deal with the symptoms, not the causes, leaving the political economy of austerity intact. This is an absolutely valid criticism. [5] This has been especially so after July 2015, when, after months of fierce negotiations, the Greek government eventually capitulated and consented to the fiscal adjustment program proposed by its creditors and, hence, to austerity. To save face, the government needed to reconcile its capitulation with as much welfare policies as it could get (i.e. agree with the creditors). Thus, in the ongoing negotiations the Greek government pushed as hard as they could for welfare policies, especially to the benefit of the most vulnerable among the victims of austerity. [6] See infra, section IV. [7] The timing is significant here. The judiciary’s anti-austerity politics peaked after 2015, while the government was advancing its anti-poverty policies. This, as we will see, posed a serious resource allocation dilemma: Since the available budgetary resources are necessarily scarce, should the government prioritize the enforcement of judicial decisions or its anti-poverty policies? [8] The critic mentioned in fn. 4 would object that these judicial decisions do not question austerity as such but only a limited part of its implementation, thus effectively leaving the political economy of austerity intact. Again, that critic would be right. [9] And, sometimes, with a more than decent salary, as happens with the judges themselves. [10] I certainly do not claim that there is necessarily correlation, but, as the Greek and other cases show (see infra, section V), there is nevertheless at least a real possibility that the judicial enforcement of social and economic rights of the middle classes impedes the social protection of the poor. [11] For an example of the centrality of the principle of legal certainty in socio-economic rights litigation see the Hungarian case examined by Andras Sajó (Sajó 2006), see supra, section IV. [12] David Landau calls this a “potentially dangerous concept” (Landau 2012: 238), see supra, section IV. [13] The aspirational and enabling (rather than restraining) character of such rights is apparent in Art. 21, para. 4, of the Greek Constitution (“The acquisition of a home by the homeless or those inadequately sheltered shall constitute an object of special State care”). This clause enables state action, which, in the absence of such a clause, might have raised constitutional reservations. For example, the implementation of tax-funded social housing programs, or the imposition of restraints on evictions might have been challenged on constitutional grounds by taxpayers or property owners, respectively. In another context, the whole constitutional controversy over the Affordable Care Act in the U.S. would have probably been futile, had the U.S. Constitution contained a clause similar to Art. 21, para. 3, of the Greek Constitution (“The State shall care for the health of citizens and shall adopt special measures for the protection of youth, old age, disability and for the relief of the needy”). [14] There is certainly also a negative, reactive aspect in protecting the poor, which comes about when a majority repeals pre-existing protective legislation. In that case, both strategies conflate, since the status quo preserving strategy (including litigation) operates in a way protective for the poor. As a matter of fact, however, the status quo preserving strategy rarely operates in favor of the poor, for both political as well as social reasons. Politically, legislation to protect the poor is often, and especially in countries struck by austerity, unpopular among the so-called “silent majority,” so politicians have a disincentive to propose such legislation (see, e.g., Sajo 2006: 97). Thus, there is often not much to repeal in the first place. But even when such legislation is repealed, the people affected usually do not have adequate access to courts, so not much litigation takes place. For an example, see Ferraz 2012: 1667 (“In fields where social rights (such as housing) are not of interest to the middle classes, not much judicialization takes place”) and more generally Tushnet 2012: 156-157. [15] PASOK went from 43,92% of the votes in 2009 to 13,18% in May 2012, 12,28% in June 2012, 4,68% in January 2015 and 6,28% (in coalition with the Democratic Left party) in September 2015. [16] The coalition lasted until January 2019, when ANEL left and the Tsipras government went on supported by the SYRIZA and several independent MPs. During that time, the minor governmental partner refused to vote for important civil rights bills, such as on granting citizenship to second generation immigrants, recognizing civil partnership for same-sex couples, or recognizing gender identity, which were supported by center-left parties or MPs of the opposition, instead. [17] Unless otherwise stated, all amounts on cost estimation are drawn from the reports of the General Accounting Office of the Ministry of Finance that accompany the respective bills upon their introduction to Parliament, available at the Hellenic Parliament’s website https://www.hellenicparliament.gr/Nomothetiko-Ergo/all-laws. [18] As estimated in joint ministerial decision 33475/1935/2018 (Official Gazette Β 2281/2018). [19] As with the other special courts of that kind, the Article 88 Court is not a permanent court but only convenes when there is a case to hear. It is composed of 9 judges: three are members of the highest courts, three Law professors, and three lawyers. [20] This is also not a permanent court. When it hears cases on the constitutionality of legislation, it is composed of 13 judges: eleven members of the highest courts and two Law professors. [21] Council of State, Decision 668/2012 (Plenary) of 20.2.2012 (Memorandum I). [22] Part of the decision’s length is explained by the unusual large number of dissenting or concurring opinions. I argue that the dissenting opinions fulfilled a conciliatory function: Despite its defeat, the losing party could still hope that the dissenting position might eventually prevail in the court. In light of later developments, this was certainly not an unfounded hope. [23] Council of State, Decision 3354/2013 (Plenary) of 27.9.2013. [24] Council of State, Decision 2317/2014 (Plenary) of 24.6.2014. [25] Article 88 Court, Decision 88/2013 of 30.12.2013. [26] Greek Constitution, Art. 88, para. 2: “The remuneration of magistrates shall be commensurate with their office.” [27] Despite the fact that professional judges only form a minority within Article 88 Court, the majority consisting of Law professors and lawyers (see infra, fn. 19), the court has consistently been rather sympathetic to judges’ interests. Maybe this has something to do, one can assume, with some sense of solidarity among legal elites. [28] Council of State, Decision 2192/2014 (Plenary) of 13.6.2014 (Uniformed civil servants). [29] Council of State, Decision 4741/2014 (Plenary) of 29.12.2014. [30] Greek Constitution, Art. 16, para. 6: “Professors of university level institutions shall be public functionaries. The remaining teaching personnel likewise perform a public function, under the conditions specified by law. (…).” [31] Audit Council, Decision 4327/2014 (Plenary) of 17.12.2014. [32] Council of State, Decision 2288/2015 (Plenary) of 10.6.2015 (Pensions). [33] In private communication I had with Council of State judges, they have all refuted this claim. Still, it is my sense that, consciously or not, judges were influenced by the exceptional surrounding conditions of the first half of 2015. To put it in other words, I have the impression that the Pensions decision could have only been decided at that exact time, i.e. during the first Tsipras government. Or, to put it mildly, it is, I think, highly unlikely that the Council of State would have issued such a decision before 2015. [34] Mark Tushnet makes a similar claim, taking as example the Hungarian Constitutional Court’s anti-austerity jurisprudence, which possibly helped the Hungarian government’s bargaining with its international lenders (Tushnet 2008: 236-237). [35] Audit Court, Decision 7412/2015 (Plenary) of 2.12.2015. [36] Audit Court, Decision 244/2017 (Plenary) of 8.2.2017. [37] Audit Court, Decision 1277/2018 (Plenary) of 29.6.2018. [38] Council of State, Decision 1125/2016 (Plenary) of 13.5.2016. [39] Council of State, Decision 431/2018 (Plenary) of 26.2.2018. [40] Council of State, Decision 479/2018 (Plenary) of 2.3.2018. [41] Article 88 Court, Decision 1/2018 of 7.3.2018. [42] An explanation is needed here. Lower courts did a quite satisfactory job, for instance, by enforcing legislation protecting mortgage holders against foreclosure, hence protecting the right to housing for vulnerable members of society. In this as well as other similar fields, courts are simply enforcing protective legislation. Thus, it is the legislature rather than the judiciary that should be credited with social rights protection of this or that social group. The judiciary actually contributes to any of these causes (anti-austerity, anti-poverty etc.) when the courts do something more than mere enforcement of existing legislation; in most cases, this would involve constitutional review of either legislative or administrative action (or inaction). [43] Greek Constitution, Article 21, para. 4: “The acquisition of a home by the homeless or those inadequately sheltered shall constitute an object of special State care”. [44] I note here that contemporary Greek constitutionalism rejects the notion of social rights as (plainly) directives of social policy, and insists that every social right protected in the Constitution is judicially enforceable. [45] That was at the time the poverty line in Greece. [46] Greek Constitution, Article 22, para. 1, clause (b): “All workers, irrespective of sex or other distinctions, shall be entitled to equal pay for work of equal value”. [47] Greek Constitution, Article 22, para. 1, clause (a): “Work constitutes a right and shall enjoy the protection of the State, which shall seek to create conditions of employment for all citizens and shall pursue the moral and material advancement of the rural and urban working population”. [48] See also European Committee of Social Rights of the Council of Europe, Decision 66/2012 (GENOP-DEI and ADEDY vs. Greece) of 23.5.2012, which found that sub-minimum wage for workers under the age of 25 violates the European Social Charter. The Committee reminded that, “to be considered fair within the meaning of [the Charter] a wage must be above the poverty line in a given country i.e. 50% of the national average wage” (para. 57 of the decision). [49] Legislation enacted in October 2018 and effectively applied from 1.2.2019, raised the minimum wage to 650 euros (from 586) for all workers, irrespective of their age. Thus, minimum wage for workers under the age of 25 raised from 511 to 650 euros. [50] Law 4575/2018 and accompanying report of the General Accounting Office of the Ministry of Finance. [51] Law 4583/2018 and accompanying report of the General Accounting Office of the Ministry of Finance. [52] Brief of the General Accounting Office of the Ministry of Finance, submitted to the Council of State on 25.1.2019 (on file with the author). [53] Id. [54] Brief of the Ministry of Finance, submitted to the Council of State on 8.2.2019 (on file with the author). [55] Similarly, Tushnet claims that “individual actions are likely to provide social and economic rights primarily for those in the middle classes, not for the least advantaged. The reason is that those in the middle classes are more likely than the least advantaged to have the ability to mobilize the legal system in an individual action. They have the requisite knowledge and have access to legal assistance to bring these actions” (Tushnet 2012: 156-157, footnote omitted). [56] In their commentary on socio-economic rights litigation in Latin America, Daniel Brinks and William Forbath contend that it is very difficult to argue empirically about whether judicial enforcement of social rights, on aggregate, has a positive impact on the poor (Brinks and Forbath 2011: 1952-1953). [57] “The Hungarian Constitutional Court, in particular,” Sajó argues, “has been reluctant to extend social rights protection to marginalised groups not already protected by legislation (for example, those without housing or permanent shelter)” (Sajó 2006: 84). [58] Athens Voice 22.6.2015, available at: http://www.athensvoice.gr/politiki/oli-i-alitheia-gia-asfalistiko-kai-tis-syntaxeis [in Greek].