Tuesday, 5 April 2011

Article on Strasbourg and Social Security

Emeritus professor Marc Bossuyt has written the article 'L’extension de la compétence de la Cour de Strasbourg aux prestations sociales : sur l’interprétation de l’article 14 de la Convention combiné avec l’article 1er du Protocole n° 1 dans les affaires Gaygusuz, Koua Poirrez, Stec et autres, Burden et Andrejeva', which appeared in the Revue de Droit Monégasque (n° 10, pp. 91-130, 2008-2009, but just published now). This is the abstract:

This article is the French version of an article published in English in March 2010 (“Should the Strasbourg Court exercise more self-restraint? On the extension of the jurisdiction of the European Court of Human Rights to social security regulations”, Human Rights Law Journal, 31 December 2007, vol. 28, n° 9-12, pp. 321-332). Contrary to this English version, it also contains a summary and comments on the Grand Chamber judgments Burden v. United Kingdom (29 April 2008) and Andrejeva v. Latvia (18 February 2009) on discrimination based on sex or nationality respectively. The author criticizes the extension by the Court of its jurisdiction which will attract an ever increasing number of cases without having the means to deal with them in an appropriate manner. He does not consider it realistic to expect that the European Court of Human Rights will have the capacity to adjudicate within a reasonable time, sometimes as a supreme judge of appeal or cassation for all legal proceedings, and sometimes as a constitutional court for all domestic laws and regulations, and even in response to applications for interim measures, and all this with respect to all individual rights of about 800 million of individuals living, whatever their nationality, in the 47 States parties to the European Convention. In those socio-economic cases, and particularly when the difference of treatment is based on sex (Stec and others and Burden), contrary to differences based on nationality (a ground not even mentioned in article 14 of the Convention), the Court allows the States a “wide margin” of appreciation. The author wonders whether in the future the Court will stick to this prudent approach, which would raise the question whether it was worthwhile to extend the jurisdiction of the Court to the very vast field of socio-economic rights, or whether it is only a formula of style that will not persist once the “dynamic” interpretation of the Court will bring it progressively to engage in an ever more strict control of the infinite variety of distinctions of all kind applied by the States parties in their economic and social legislation.

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