Vol. 1 No. 1 (2014): Pensions, public sector employment and the Troika
The prima facie constitutional triad is not ‘liberty, equality, fraternity’ but rather ‘equality, proportionality, and legitimate expectations’. The principles of equality, proportionality and the protection of legitimate expectations have, at the very least, the function they perform in common: they are instruments for mediating processes of weighing up and optimisation and, to that extent, vehicles of the prima facie constitution. In Portugal, they also share the circumstantial fact of being the parameters most frequently invoked by those who have raised the question of the constitutionality of legislative provisions that reduced the amounts of wages and pensions paid from resources covered by the State Budget (‘cuts’). In response, the constitutional judge has attributed unequal relevance and impact to them. The principle of equality has been the primary basis for declaring some of those ‘cuts’ unconstitutional. The principle of the protection of legitimate expectations has frequently been put to the test, but only one recent ruling of unconstitutionality has been based exclusively on its violation. The principle of proportionality, despite being repeatedly invoked by the applicants in constitutional review proceedings, has been relegated to a subsidiary role (or perhaps a veiled application?). For the decisions of the constitutional judge to be considered rational from a practical point of view, it is necessary for those instruments to be rational from a theoretical point of view²: their dogmatic and argumentative structure must be clear, transparent, coherent and stable, particularly in their evaluative component, so as to be immune to the accusation that they merely reflect the judges’ ideological leanings. The extensive case law on pension ‘cuts’ established in recent years by the Constitutional Court provides an opportunity to assess whether this has been the case. In section 1, we will briefly focus on the concept of prima facie constitutionality and its vehicles. In section 2, we will examine the principle of equality as a limit on pension ‘cuts’. In section 3, we will examine the principle of the protection of legitimate expectations as a limit on pension ‘cuts’. In section 4, we will examine the principle of proportionality as a limit on pension ‘cuts’.
Published:
21-05-2026
