Constitutional principles regarding the Spanish Social Security system: a citizen’s right

Abstract

A public system of social security is specially protected in a Social State, as happens in Spain and most of the European countries. This public system is nowadays reinforced by the Charter of Fundamental Rights of the European Union and not only by the International Covenant on Economic, Social and Cultural Rights. The Spanish constitutional recognition of this system (article 41 SC) is based on several principles: flexibility, publicity, sufficiency, necessity, universality and complementarity. All the other contents of the right can be shaped by the law, but it is in any case a true citizen’s right according to the General Law on Social Security and several international treaties such as the European Social Charter and certain relevant norms of the European Union. It is as well a clear mandate to the legislator, so public authorities are obliged to preserve a public scheme of Social Security with different benefits and levels. Indeed it is above all a right to legal configuration or legal development and several limits and dynamic restrictions can be imposed by laws according to the constitutional principle of financial sustainability. But, on the other hand, if the principle of proportionality has been violated, there are several remedies to react against those legal restrictions before the social courts, the Constitutional Court and the European Court of Human Rights which must guarantee the right to the peaceful enjoyment of possessions. A system of social security is always the fruit of the Law and therefore legal constrictions must be proportional.