{"id":394,"date":"2016-02-09T08:45:40","date_gmt":"2016-02-09T08:45:40","guid":{"rendered":"http:\/\/nome.unak.is\/wordpress\/?p=394"},"modified":"2019-07-17T10:14:21","modified_gmt":"2019-07-17T10:14:21","slug":"europe-s-constitutional-law-in-times-of-crisis-a-human-rights-perspective","status":"publish","type":"post","link":"https:\/\/nome.unak.is\/wordpress\/volume-10-no-3-2016\/conference-paper-10-3\/europe-s-constitutional-law-in-times-of-crisis-a-human-rights-perspective\/","title":{"rendered":"Europe\u2019s Constitutional Law in Times of Crisis: A Human Rights Perspective"},"content":{"rendered":"\n\n\n\t
\n\n\t\t<\/i><\/span> <\/a>\n\n\t<\/div>\n\n\n\n\n\n

In this paper, we aim to survey representative constitutional amendments in<\/span> <\/b>the European Union<\/span>\u2019s (EU) area, whether attempted or accomplished, as well as significant adjudications by constitutional bodies. Then, we proceed to assess these legal phenomena in light of human rights jurisprudence. Pivotal reference in our work is the recently released 7th<\/sup> volume of the Annuaire international des droits de l\u2019homme<\/em> (Athens: Sakkoulas, December 2014), edited by G. Katrougalos, M. Figueiredo and P. Pararas under the aegis of the International Association of Constitutional Law. Not only does this volume comprise the work of some of Europe\u2019s noted constitutionalists, it also addresses the constitutional matters central to this paper in light of human rights jurisprudence, which is the area of expertise of one of the paper\u2019s authors, i.e. \u00c1g\u00fast \u00de\u00f3r \u00c1rnason, and the area that the other author, Giorgio Baruchello, has construed axiologically as a pivotal instantiation of civil commons, <\/em>i.e. \u201call social constructs which enable universal access to life goods\u201d. Have European constitutions continued to function qua<\/em> civil commons in the crisis years? That, at the deepest level of value scrutiny, is the question that our joint survey and analysis aim to answer.<\/span><\/p>\n

<\/p>\n

Introduction<\/span><\/b><\/p>\n

On 12 October 2005, while <\/span>addressing<\/span><\/a> the members of the National Italian American Foundation meeting in Washington D.C., Mr. Alan Greenspan, the long-time Chairman of the United States\u2019 (US) Federal Reserve, stated openly and confidently: \u201crecent regulatory reform [i.e. deregulation], coupled with innovative technologies, has stimulated the development of financial products, such as asset-backed securities, collateral loan obligations, and credit default swaps, that facilitate the dispersion of risk.\u201d <\/span>Writing<\/span><\/a> three years before Greenspan\u2019s speech, financial mogul Warren Buffett referred to the same products as \u201cfinancial weapons of mass destruction\u201d (p.15)<\/span>. Who was right? Since then, such legally deregulated and technologically innovative products have caused the transnational banking network to freeze, the world\u2019s stock exchanges to crash and most countries to fall into an economic slump, which, depending on the country we look at, has taken the shapes of technical depression, mass unemployment, or reduced access to means of life for vast sectors of the population. It is no surprise that, three years after Greenspan\u2019s speech, the world\u2019s popular press as well as serious pundits did nickname all such products \u201ctoxic assets\u201d (this term being the brainchild of Angelo Mozilo, founder of Countrywide Financial<\/span>)<\/span>.[1]<\/span><\/a><\/span><\/p>\n

\u00a0<\/span><\/p>\n

Despite its rather specific and institutionally circumscribed origin within the realm of deregulated, private, technologically intensive, global high finance, this realm\u2019s crisis, by disrupting the availability of credit for all kinds of businesses and opening vast opportunities for financial speculation, including bearish targeting of State bonds and currencies, has sent shockwaves throughout social bodies and institutions at large.[2]<\/span><\/a> As a result, the innovative creations of white-collar specialists in \u201cEconomics, Finance, and Insurance & Risk Management\u201d that, at least until 2008, had been called by some \u201cthe best and brightest\u201d,[3]<\/span><\/a> have caused inter alia<\/i>: Italian musicians and opera singers to have their annual season curtailed or their contracts annulled;[4]<\/span><\/a> low-income Portuguese pensioners to have their monthly income further reduced;[5]<\/span><\/a> life-saving and serving Greek nurses to lose their jobs;[6]<\/span><\/a> and young Latvian people of working age to emigrate en masse<\/i> at an unprecedented rate.[7]<\/span><\/a><\/span><\/p>\n

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Constitutions in times of crisis: A token of Civil Commons?<\/span><\/b><\/p>\n

Even the typically aloof and fairly resilient sphere of constitutional law has been far from immune. Between 2008 and 2015, some European countries have either modified or tried to modify their constitutions so as to enshrine within them tight budgetary rules. At the same time, constitutional fora<\/i> have been busy addressing crisis-related laws and policies. In public debates and scholarly studies, many of these laws and policies have been referred to as \u201causterity\u201d laws and policies, given their conspicuous consumption-reducing impact on citizens, particularly those already vulnerable and\/or the less affluent members of society (e.g. youth\u2019s unemployment, wage cuts in the public sector, children\u2019s and elderly citizens\u2019 illness and\/or premature death by reduced healthcare provision).[8]<\/span><\/a><\/span><\/p>\n

\u00a0<\/span><\/p>\n

In this paper, we aim to survey representative constitutional amendments in the European Union\u2019s (EU) area, whether attempted or accomplished, as well as significant adjudications by constitutional bodies. Then, we proceed to assess these legal phenomena in light of human rights jurisprudence. Pivotal reference in our work is the recently released 7th<\/sup> volume of the Annuaire international des droits de l\u2019homme<\/i> (Athens: Sakkoulas, December 2014), edited by G. Katrougalos, M. Figueiredo and P. Pararas under the aegis of the International Association of Constitutional Law.[9]<\/span><\/a> Not only does this volume comprise the work of some of Europe\u2019s noted constitutionalists, it also addresses the constitutional matters central to this paper in light of human rights jurisprudence, which is the area of expertise of one of the paper\u2019s authors, i.e. \u00c1g\u00fast \u00de\u00f3r \u00c1rnason, and the area that the other author, Giorgio Baruchello, has construed axiologically as a pivotal instantiation of civil commons<\/i>,[10]<\/span><\/a> i.e. \u201call social constructs which enable universal access to life goods\u201d.[11]<\/span><\/a> Have European constitutions continued to function qua<\/i> civil commons in the crisis years? That, at the deepest level of value scrutiny, is the question that our joint survey and analysis aim to answer. <\/span><\/p>\n

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We focus intentionally upon non-Nordic countries. Firstly, only some of the Nordic nations are part of the EU and even fewer are members of the Eurozone.[12]<\/span><\/a> Secondly, we assume that the predicaments of the nations discussed hereby are less known in Northern Europe and therefore make a fresh contribution to the Nordic Summer University\u2019s (NSU) research group for whom this paper has been written. Thirdly, we believe that discussing the constitutional events that have taken place in these nations may cast light on the deepest reasons for the on-going European crisis. Not only do these events pertain to EU and Eurozone countries; also, they exemplify most starkly the conflict between the European populations\u2019 life-needs and the money-preferences of the institutional creditors of Europe\u2019s States. Theirs is the conflict on which constitutional courts are mandated to adjudicate given the existing international treaties and national constitutions, the civil-commons function of which can therefore be observed and gauged.<\/span><\/p>\n

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Select events on Europe\u2019s constitutional scene, 2008-2015<\/span><\/b><\/p>\n

i. Greece<\/span><\/b><\/p>\n

Let us begin with Greece, possibly the most dramatically crisis-hit country in Europe, at least as regards demographic indicators such as HIV-infection, mental illness, suicide and overall mortality rates, all of which worsened considerably after the fatal \u201cintoxication\u201d of the international financial markets, the resulting collapse of Lehman Brothers, the subsequent disruption of the global economic regime, the opportunities for rampant financial speculation emerging therefrom,[13]<\/span><\/a> and the austerity measures taken by the Greek State in order to be granted new, dearer loans.[14]<\/span><\/a><\/span><\/p>\n

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i1. Preliminary remarks<\/span><\/b><\/p>\n

Without these new, dearer loans transferring by definition an even bigger share of public wealth into private hands, the Greek State would have succumbed to speculation and possibly stepped into massive debt restructuring or even sovereign default. Both outcomes were resisted by State creditors,[15]<\/span><\/a> for they would have meant: (i) huge immediate losses for Greek as well as foreign private bond-holders and investors; (ii) sizeable gains for some foreign hedge funds speculating or betting directly upon such events;[16]<\/span><\/a> and (iii) a meltdown of the nation\u2019s financial and banking businesses akin to the one that occurred in Iceland, i.e. the former \u201cViking tiger\u201d about which we have spoken on previous meetings of our NSU research group, but this time within the Eurozone, hence foreboding major \u201ccontagion\u201d[17]<\/span><\/a> risks on an international scale.[18]<\/span><\/a> Given its dramatic connotations, its systemic implications, and the publicity surrounding it, we are going to focus here more upon the Greek experience than on the others following it. Besides, these additional experiences adhere to the same inherent socio-economic logic and debtor-creditor power aetiology that we describe vis-\u00e0-vis<\/i> Greece and its \u201cabsentee owners\u201d who, as US economist Thorstein Veblen discussed almost one hundred years ago, can hold the nations\u2019 private businesses and public governments to ransom by means of actual and\/or threatened financial \u201csabotage\u201d of the real economy (e.g. reduction or suspension of credit provision, speculation upon State bonds and national currencies, mass capital outflow).[19]<\/span><\/a><\/span><\/p>\n

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The legal system of the Hellenic Republic does not include a constitutional court as such, but rather the Greek Council of State deals qua <\/i>highest administrative court of the country with many, though not all, matters of a substantial constitutional character. As of 2008, this court has passed two decisions in relation to the 2010 and 2012 Economic Adjustment Programmes and the related \u201cmemoranda\u201d[20]<\/span><\/a> between the Greek State and the representatives of the International Monetary Fund (IMF), the European Central Bank (ECB) and the European Commission, i.e. the three international institutions representing creditor interests that the media dubbed the \u201cTroika\u201d.[21]<\/span><\/a> Via<\/i> the 2010 and 2012 bailout operations, the members of the Troika required the Greek government to adopt extensive sets of austerity laws and policies in order to obtain loans aimed at securing the solvency of the State, henceforth its ability to pay its creditors, as well as the effective continuation of the country\u2019s private financial and banking sectors. Such was at that point in history the will of the transnational institutional creditors, who had poured money far more easily, if not actually quite eagerly, into the Greek economy before<\/i> 2008, irrespective of whatever notorious private corruption or public profligacy may have characterised that country.[22]<\/span><\/a> As US investment giant Goldman Sachs is concerned, it even sold the Greek State highly profitable\u2014for the former\u2014and secretive financial derivatives in 2000-2002, thus allowing the latter to report misleading information on Greece\u2019s public finances.[23]<\/span><\/a><\/span><\/p>\n

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i2. The big picture <\/span><\/b><\/p>\n

Analogously to the conditionalities that the IMF and the World Bank set in place for debtor countries in the so-called \u201cThird World\u201d over the 1980s and 1990s,[24]<\/span><\/a> these austerity policies have had a remarkably depressing effect on the Greek economy. For one, they have generated a prolonged slump rather than the \u201chigher growth and employment\u201d indicated in the 2010 \u201c<\/span>Memorandum of Understanding of Economic and Financial Policies<\/span><\/a>\u201d (p.2). Three years later, the IMF\u2019s \u201c<\/span>Ex Post Evaluation of Exceptional Access under the 2010 Stand-By Arrangement<\/span><\/a>\u201d admitted that there had been \u201cnotable failures\u201d with these policies, including the uneven way in which \u201cthe burden of adjustment\u201d had been spread \u201cacross different strata of society\u201d (pp.1-2). Still, about 90% of the bailout money was used to repay or pay interest on loans from private lenders, Greek as well as non-Greek\u2014ergo <\/i>Goldman Sachs too\u2014, also via<\/i> eventual, partial debt restructuring in 2012.[25]<\/span><\/a> So-called \u201chaircuts\u201d were made then, but the IMF and the institutional creditors that the IMF represents on international fora <\/i>seem pleased with the overall result, which has so far prevented a sovereign default and preserved the bulk of creditors\u2019 claims.[26]<\/span><\/a> After all, these payments and repayments took place during and despite a worsening economic situation and, with it, vast socio-demographic losses, some of which beyond any possible compensation (e.g. death and children\u2019s loss of opportunities). Apparently, there was too little money to avoid them, the bailout funds serving the end of preventing major pecuniary losses to the State\u2019s bondholders as well as to private shareholders and investors of Greek private banks, such people being both Greek and non-Greek. Their claims did not vanish by way of sovereign default; their value was not annihilated thanks to the Troika\u2019s acting as intermediary and the State\u2019s wealth as guarantee; the interest payments to which they were entitled kept streaming unchanged, at least until 2012, and are still unfrozen; old, undesired claims were refunded; new ones were established at a higher premium for the willing. Meanwhile, the debt burden was shifted from private hands into public ones, which then reduced the provision of public goods and services at central and local levels, with dramatic effects for the population.[27]<\/span><\/a> As the 2010 Loan Agreements state, a <\/span>\u201csafety net\u201d was promptly put and sternly kept in place, but \u201cfor the financial system\u201d,[28]<\/span><\/a> not the population at large, who received instead \u201ccuts in public sector salaries, bonuses\u2026 allowances, and steps to reduce health care spending\u201d.[29]<\/span><\/a> <\/span>Shifting the burden of the crisis onto States and their citizens, i.e. away from the private agents with whom it originated, is what the Bank of England\u2019s executive director Andrew Haldane and economic analyst Piergiorgio Alessandri call \u201c<\/span>Banking on the state<\/span><\/a>\u201d.[30]<\/span><\/a> It is not a phenomenon limited to Greece alone: quite the opposite. As they wrote in 2009:<\/span><\/p>\n

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[Take] a snap-shot of the scale of intervention to support the banks in the UK, US and the euro-area during the current crisis. This totals over $14 trillion or almost a quarter of global GDP. It dwarfs any previous state support of the banking system. These interventions have been as imaginative as they have large, including liquidity and capital injections, debt guarantees, deposit insurance and asset purchase. The costs of this intervention are already being felt. As in the Middle Ages, perceived risks from lending to the state are larger than to some corporations. The price of default insurance is higher for some G7 governments than for McDonalds or the Campbell Soup Company. Yet there is one key difference between the situation today and that in the Middle Ages. Then, the biggest risk to the banks was from the sovereign. Today, perhaps the biggest risk to the sovereign comes from the banks. Causality has reversed.<\/span><\/i> (p.1)<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Apart from recalling the experiences of developing yet never truly developed countries in recent decades, the chain of events observed in Greece has also proved consistent with the statement pronounced on the 9th<\/sup> May 2010 by Nogueira Batista, Brazil\u2019s executive director on the IMF board at the time of the first Greek bailout agreements. On that fateful occasion, Batista stated that the planned bailout process should \u201cbe seen not<\/i> as a rescue of Greece, which will have to undergo a wrenching adjustment, but as a bailout of Greece\u2019s private debt holders, mainly European financial institutions.\u201d (emphasis added)[31]<\/span><\/a> As<\/span> legal scholar Ellen Brown succinctly explains: <\/span>\u201c<\/span><\/b>ballooning Greek debt was incurred to save the very international banks to which it is now largely owed.\u201d<\/span><\/strong>[32]<\/span><\/span><\/a><\/p>\n

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The inner economic logic revealed by Haldane, Alessandri, Batista and Brown is as clear as it is twisted. The nations\u2019 public wealth (e.g. State-owned utilities, tax revenues, citizen\u2019s pension money) and institutions (e.g. income taxation, debt-issuing treasuries, executive power) are used to keep afloat the transnational private financial sector, especially the over-indebted banks and funds that, in recent decades, created, traded and\/or ballooned upon virtual assets that proved to be toxic in reality. These banks\u2019 and funds\u2019 debts and, in turn, these debts\u2019 toxicity caused an eventual systemic collapse. Then, and then only, did <\/span>large-scale public intervention in the economy and novel regulation come to be advocated forcefully and operated factually, their prime aim being the rescue of the over-indebted private banks and funds (e.g. the US\u2019 TARP, the ECB\u2019s LTROs).[33]<\/span><\/a> As we write, the ECB has just has been handing out \u20ac1.1 trillion to the private financial industry in its latest round of quantitative easing, while impoverished Greek pensioners have to go through the garbage in order to find something edible.[34]<\/span><\/a> Yet this is only part of the twisted, indeed paradoxical logic at work. Such large-scale public intervention and novel regulation have occurred <\/span>in spite of the free-market principles championed until 2008 by most Western governments since at least Margret Thatcher\u2019s first cabinet in the UK, as well as by the most eminent representatives of the private financial industry, which has been deregulated worldwide since the 1980s in line with the same principles.[35]<\/span><\/a><\/span> Economic bankruptcy was averted by intellectual bankruptcy. As to the justification for suddenly abandoning these principles, it was argued that the <\/span>transnational <\/span>private financial sector, albeit culpable for the collapse, is uniquely necessary to provide credit to the real economy of the world.[36]<\/span><\/a><\/span><\/p>\n

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The real economy, however, has been largely deprived of credit since 2008, at least in the EU. The money that has been made available most promptly to the private financial industry by Europe\u2019s as well as other major central banks has not gone primarily to families and businesses. Rather, it has been used largely for worldwide speculation on financial assets.[37]<\/span><\/a> This lack of outflowing productive credit has been lamented by the current ECB\u2019s president himself, Mario Draghi, who has gone so far as to charge private banks for holding reserves at the ECB.[38]<\/span><\/a> Claims of the private financial sector\u2019s unique necessity, moreover, fly in the face of historical instances of constructive public credit provision, ranging from Bismarck\u2019s Germany to today\u2019s North Dakota.[39]<\/span><\/a> Desirable the private financial and banking sectors might be, certainly for private shareholders and top managers; but necessary they are not, at least factually. Neither are they necessary logically. If anything, the frequently heard official justification fails the principle of Ockham\u2019s razor because of unneeded multiplication of agents. If public wealth is gathered via<\/i> privatisation, taxation, budget cuts, etc. in order to be given to private agents, who then return it\u2014for a fee\u2014to the public, then it is simpler to skip the fee-charging intermediate agent and let the public manage the wealth it already possesses, e.g. by local or national public banks. Rather than \u201cnecessity\u201d, Veblen\u2019s term \u201cpecuniary <\/span>opportunity\u201d better describes the inner economic logic at work, albeit one that may be neither productive nor constructive.[40]<\/span><\/a> Echoing Haldane and Alessandri, US economist and economic historian Michael Hudson writes: \u201c<\/span>The [financial] rentier or monopolist masquerades as contributing to the production process so that its revenue appears to be earned rather than siphoned off in a zero-sum activity\u2026 In the case of financial parasitism, bankers and money managers have become more destructive over the centuries<\/i>.\u201d<\/span>[41]<\/span><\/span><\/a> (emphasis added)<\/span><\/p>\n

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i3. The small picture <\/span><\/b><\/p>\n

It is within this broader systemic context that the Greek Council of State adjudicated case 668\/2012 on whether the agreements with the Troika violated the constitutional principles of \u201cproportionality, equality, the fair distribution of public burden and the right to property\u201d (AID: 10). It determined that, given the \u201cexceptional and urgent goals of general public interest as well as the need to guarantee the country\u2019s obligations towards the European Union and the International Monetary Fund\u201d, the agreements were acceptable, for \u201cthe need to serve the country\u2019s external funding and the enhancement of its financial credibility were crucial\u201d at this stage (AID: 10; cf. also pp.578-79). It was a case of acknowledged force majeure<\/i>, or an \u201c\u00e9tat d\u2019exception<\/i>\u201d [state of exception], under which \u201cthe need to effectively protect the public interest prevails temporarily over the full realization of rights and the executive is empowered towards the legislative and the judicial.\u201d (AID: 10; cf. also pp.315-24)[42]<\/span><\/a> <\/span><\/p>\n

\u00a0<\/span><\/p>\n

Speaking of effective protection of people\u2019s interests by impeding the fulfilment of their rights may sound Orwellian, especially when this is coupled with the idea of skewing the balance among the three fundamental powers within the liberal paradigm. However, under international law, only slavery and torture are prohibited absolutely as ius cogens<\/i> [compelling law], whilst in Europe, both inside and outside the EU, no State may take a citizen\u2019s life in peacetime either. All other rights, whether private property or freedom of assembly, can be weighed and must be balanced mutually in the interest of the public good.[43]<\/span><\/a> In an attempt to find the right equilibrium, in case 1685\/2013 concerning whether the new taxes introduced because of the memoranda conflicted with Art. 78 par. 2 of the Greek Constitution, which limits to one fiscal year any retroactive legislation imposing taxes upon Greek citizens, the court concluded that they were acceptable, \u201cdue to the need of protecting the public interest\u201d (AID: 10-12; cf. also pp.578-79). In what amounts to a patent acknowledgment of power relations under current economic conditions, the Greek Council of State concluded that, in order for \u201cpublic interest\u201d to be protected, resources should be withdrawn from the Greek citizenry so as to make sure that the creditors\u2019 interest payments kept flowing.<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Some constitutional matters were dealt with by other courts, however, and they did not meet the same fate. The Greek Court of Auditors, \u201cafter reviewing the fourth\u2026 programmed cuts on the public sector pensions\u201d, issued an opinion on 20 February 2012 that condemned \u201cthese horizontal [i.e. across the board] and with no specific time limit reductions\u201d, for they [what follows is a direct translation of the opinion]: \u201cviolate the principle of the social state, but also lead to its destruction since they deteriorate the pensioners\u2019 situation in such a level, that the principle of human dignity<\/i> according to the Constitution is jeopardized\u201d (AID: 11-12; emphasis added).[44]<\/span><\/a> Time had elapsed, elderly Greek citizens had been impoverished and their rights, especially social and economic ones, curtailed by repeated rounds of budget and pension cuts. The exceptional measures were becoming a new norm; henceforth, the balancing of rights in view of the public good required a move in the opposite direction, in order not to be disproportionate\u2014indeed, in order not to violate the paramount principle of human dignity itself. As we are going to see, that is what the constitutional courts of other EU countries concluded as well during these years of crisis.<\/span><\/p>\n

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ii. Portugal <\/span><\/b><\/p>\n

Let us continue with the other crisis-hit countries, commonly referred to with the disparaging acronym \u201cPIIGS\u201d, which is worth noting as a token of victimisation of victims.[45]<\/span><\/a> The first one, \u201cP\u201d, is Portugal, which entered an Economic Adjustment Programme with the same Troika members as Greece in May 2011 and abandoned it voluntarily, without full disbursement of the planned loans, in June 2014.[46]<\/span><\/a> It too comprised a \u201cMemorandum of Economic and Financial Policies\u201d, a \u201cMemorandum of Understanding on Specific Economic Policy Conditionality\u201d and a \u201cTechnical Memorandum of Understanding\u201d. Behind the decision to abandon the bailout plan lie three much-publicised rulings by the national Constitutional Court (cf. AID: 7 n12, 575 n8 & 579-81), whose adjudications are binding on all public and private persons and bodies.[47]<\/span><\/a> They concern cases <\/span>396\/2011<\/span><\/a> (in Portuguese; cf. also AID: 7, 578 n13), <\/span>353\/2012<\/span><\/a> (in Portuguese; cf. also AID: 7-8, 118 n74) and <\/span>187\/2013<\/span><\/a> (in Portuguese; cf. also AID: 8, 119 n75), all pertaining to the constitutionality of severe cuts to public-sector wages and pensions. <\/span><\/p>\n

\u00a0<\/span><\/p>\n

In 2011, the court acknowledged \u201ca compelling State interest in fiscal adjustment\u201d and deemed constitutional \u201cthe contested salary cuts in the public sector\u201d, based upon considerations of adequacy, necessity and proportionality in view of \u201ctangible results.\u201d (AID: 578 n13). However, in 2012, the State budget had planned yet another round of vast cuts in the salaries and pensions of public employees, so as to gather resources to repay in primis<\/i> its private creditors, but the court intervened: public-sector workers were being targeted in a way that was not applied to private-sector workers: the constitutional principle of equality<\/i> was being denied (AID: 118).[48]<\/span><\/a> Similarly, in 2013, the principle of equality<\/i> was called upon in order to condemn further cuts in the public sector as unconstitutional, adding to this notion a temporal and etiological component: \u201cas time progresses\u2026 the reason to target public sector employees grows weaker since the cumulative effect of three years of pay cuts increases the weight of the burden placed specifically on their shoulders while\u2026 the Government had plenty of time to find workable alternatives to reduce public expenditure.\u201d (AID: 118-19).[49]<\/span><\/a> <\/span><\/p>\n

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iii. Italy <\/span><\/b><\/p>\n

Italy has received no bailout funds yet and it has actually been the third biggest net contributor to the European Financial Stability Facility (EFSF), established in 2010 alongside the European Financial Stabilisation Mechanism (EFSM) in order to loan funds to the States of Greece, Portugal and Ireland within the context of coordinated bailout programmes with other international financial institutions (IFIs).[50]<\/span><\/a> Italy has also been the third biggest net contributor to the EFSM\u2019s legal successor, i.e. the 2012 European Stability Mechanism (ESM).[51]<\/span><\/a> Nonetheless, the State\u2019s historically high public debt and the dubious \u201chealth\u201d of some of its largest banks have made Italy a significant target of international financial speculation during the crisis years, so that “[b]y attacking Italy, financial speculation could really cause the euro-zone to break up”.[52]<\/span><\/a> Thus, in order to secure regular interest payments on its public debt and thereby reassure the international financial community, the country has been undergoing a prolonged period of austerity under four successive governments (i.e. Berlusconi IV, Monti, Letta, Renzi; of them, only the first was formed after a round of elections for the national Parliament). Speculation-impairing limitation or suspension of free capital trade, as successfully operated in Malaysia during the 1997-1998 Asian crises,[53]<\/span><\/a> has never been discussed by national leaders in connection with the recent Eurozone troubles, despite its prime causal role[54]<\/span><\/a> and the well-known absence of financial meltdowns in the Bretton Woods era.[55]<\/span><\/a> Quite the opposite, austerity measures have been the standard solution across the board, thus displaying ipso facto<\/i> the awesome power that international financial interests can have over national ones in current world affairs.[56]<\/span><\/a><\/span><\/p>\n

\u00a0<\/span><\/p>\n

Analogously to what occurred in Greece and Portugal, the Italian Constitutional Court has eventually been involved in assessing some of the laws implementing such austerity policies. The rationale and the chronological evolution of the court\u2019s decisions have been analogous too. In 2010, assessing case <\/span>316\/2010<\/span><\/a> (in Italian; cf. also AID: 395), the court declared constitutional the State\u2019s recouping of resources via <\/i>temporary cessation of the revaluation of the highest pensions of former State employees (i.e. above 90,000.00 EUR a year). This recouping was called a \u201csolidarity contribution\u201d, given the objectives of \u201ca balanced budget\u201d and the effectively \u201climited resources available\u201d for the State at that time (AID: 395). Three years later, however, dealing with case <\/span>116\/2013<\/span><\/a> (in Italian; cf. also AID: 9 & 395-96), the continued blockage of those pensions\u2019 revaluation was deemed unconstitutional, given also a previous decision of the same court on the salaries of public top managers (case 223\/2012), in which it was determined that withholding due payments to public employees, whilst keeping those for equivalent private ones unaffected, violated the constitutional principle of equality<\/i>.[57]<\/span><\/a> As already seen in the opinions of the Portuguese constitutional court, the continued singling out of public-sector workers, past and present, violates their equal standing as right-bearing citizens of the State.[58]<\/span><\/a><\/span><\/p>\n

\u00a0<\/span><\/p>\n

An additional analogy is to be found with regard to those citizens that lie at the opposite end of the income spectrum, i.e. those who are so poor because of the ongoing crisis that a \u201cright to nourishment\u201d (the court\u2019s own formulation; case <\/span>10\/2010<\/span><\/a>) must be acknowledged openly and clearly to their benefit, in connection with the fundamental constitutional principle of the \u201cdignity of the human person<\/i>\u201d (idem<\/i>, in Italian; cf. also AID: 396; emphasis added). By so doing, the court recognises that \u201cthe extraordinary circumstances created by the crisis [are] a basis not to curtail rights, but to enhance their protection by upholding provisions that would otherwise be ruled unconstitutional\u201d (AID: 575). Contrary to the 2012 decision of the Greek Council of State, the conditions of force majeure<\/i>, i.e. the state of exception caused by the severe economic downturn, may actually justify unconventional policies to respect, protect and fulfil the citizens\u2019 rights, rather than curtailing them temporarily for the sake of meeting financial obligations with the State\u2019s creditors\u2014as was also done, historically, in wartime periods. \u201cFirst things come first\u201d; or, as even the liberal thinker Isaiah Berlin believed, they ought to.[59]<\/span><\/a> If the State\u2019s interest payments are frozen, delayed or cancelled, an investor may lose some of her money, and hardly ever the principal. If the State\u2019s medical treatments are frozen, delayed or cancelled, a citizen may lose her one and only life, which can never be recovered. Economic, social and cultural rights may and can be prioritised over creditors\u2019 pressing demands, which may and can be postponed without harming or destroying citizens\u2019 livelihoods and lives. This was done in response to Iceland\u2019s 2008 meltdown, for instance, without it even causing a rift with the IMF.[60]<\/span><\/a> Serious economic crisis is ipso facto<\/i> the moral and legal justification for emergency lines of action.[61]<\/span><\/a> It is precisely in gravely difficult times that legally acknowledged human rights become truly crucial qua<\/i> means of shielding the individual from major life-harm and must therefore be respected, protected and fulfilled.[62]<\/span><\/a><\/span><\/p>\n

\u00a0<\/span><\/p>\n

Finally, under the umbrella-notion of austerity policies, Italy underwent a veritable constitutional change too. It was the introduction of a new constitutional principle, i.e. that of a \u201cbalanced budget\u201d [pareggio di bilancio<\/i>], through the constitutional law <\/span>nr.1 of 20 April 2012<\/span><\/a>, modifying articles 81 (State budget), 97 (Public Administration), 117 and 119 (regions and local authorities) of the Italian Constitution (in Italian; cf. also AID: 397-99). This principle was introduced despite the ratified EU treaties, which allow for a 3% deficit over the national GDP, but in explicitly declared connection with the 2012 European Fiscal Compact among EU countries fixing the State\u2019s annual budget deficit to 0.5%, or 1% in case of the public debt being below 60% of the country\u2019s GDP.[63]<\/span><\/a> Taken in isolation, this new principle seems austere indeed, for it apparently contradicts the well-established notion and historical praxis whereby States grow and develop by means, inter alia<\/i>, of public deficit. However, in the successive law of implementation (nr. <\/span>243\/2012<\/span><\/a>), a modicum of flexibility was immediately reintroduced, given previous pronunciations of the same court on matters of public finance (especially the decision 1\/1966) and the explicit acknowledgment of the simple but important fact of \u201ccontrary and favourable phases of the economic cycle\u201d (art. 81, al.1). Eighty years of macroeconomic science and experience were not suddenly obliterated. Rather, what was really new in connection with this constitutional change was the specification that the new principle has to be adhered to \u201cin conformity with the normative order of the European Union\u201d (art. 97). To many commentators, this open reference to the EU did strike as a breach of national sovereignty (cf. AID: 398).<\/span><\/p>\n

\u00a0<\/span><\/p>\n

iv. Ireland<\/span><\/b><\/p>\n

Another country where constitutional changes have been discussed and\/or passed is Ireland, the former \u201cCeltic tiger\u201d, which entered an Economic Adjustment Programme with the Troika in 2010, just like Greece and Portugal, given the implosion of its private banking sector in 2008.[64]<\/span><\/a> As already seen in Greece and Portugal, bailout programmes have regularly required austerity measures qua <\/i>conditionality for the loans. Unlike Greece and Portugal, though, the Irish constitution requires popular votes to be held in connection with constitutional amendments. As a result, three referenda were held in Ireland on constitutional amendments that related palpably to the aftermath of the 2008 crisis. The first one was held on 27 October 2011 and allowed for the successive reduction of the wages for Irish judges, who therefore suffered a worse pecuniary fate than their Italian colleagues. The second was held on 31 May 2012 and allowed the Irish government to ratify the European Fiscal Compact. The third one was held on 4 October 2013 and rejected the abolition of the Seanad, i.e. the Irish upper house or Senate, which had been targeted for extinction by several politicians as a cost-saving move.[65]<\/span><\/a><\/span><\/p>\n

\u00a0<\/span><\/p>\n

Additionally, just before and then immediately after the 2008 Worldwide collapse, Ireland\u2019s popular votes on constitutional amendments had already been in the news extensively, for the voting population had first rejected (12 June 2008) and then approved (2 October 2009) the ratification of the Lisbon Treaty, which increased the level of institutional integration of the EU countries. Finally, three more popular votes have been held since 2008 that do not seem to be directly relatable to: (a) the crisis as such; (b) the role played by the Irish banking sector or the deregulating governments of the former Celtic tiger in the early 2000s; and (c) the austerity measures following the 2010 Economic Adjustment Programme agreed upon with the Troika. They consisted of: an October 2011 vote on the scope of investigative powers of Parliamentary commissions; a November 2012 vote on children\u2019s rights in the country; and an October 2013 vote on the introduction of a new Court of Appeal between the High Court and the Supreme Court. <\/span><\/p>\n

\u00a0<\/span><\/p>\n

Possibly, the most conspicuous constitutional change that Ireland may undergo will result from the 2015 referenda and governmental replies to the conclusions of the national <\/span>Convention on the Constitution<\/span><\/a>, held between 1 December 2012 and 31 March 2014, largely as a response to the crisis, as shown most clearly by the Convention\u2019s focus on economic, social and cultural rights.[66]<\/span><\/a> For those who are not aware of the nature, composition and aims of this institution: <\/span><\/p>\n

\u00a0<\/span><\/p>\n

The Convention on the Constitution is a forum of 100 people, representative of Irish society and parliamentarians from the island of Ireland, with an independent Chairman. The Convention was established by Resolution of both Houses of the Oireachtas to consider and make recommendations on certain topics as possible future amendments to the Constitution. The Convention is to complete its work within 12 months. For its part, the Government has undertaken to respond to the Convention’s recommendations within four months by way of debates in the Oireachtas and where it agrees with a particular recommendation to amend the Constitution, to include a timeframe for a referendum<\/span><\/i>.[67]<\/span><\/a> <\/span><\/p>\n

\u00a0<\/span><\/p>\n

The current year may thus yield interesting constitutional changes for Ireland. <\/span><\/p>\n

\u00a0<\/span><\/p>\n

As regards the Irish constitutional court, however, not a lot has happened in the Irish courts directly related to the economic crisis. Education-related cases of the early 2000s set down such a conservative line on judicial enforcement of socio-economic rights, even those that are justiciable in the text, that it had a chilling effect on any possible litigation in this area. We write \u201cconservative\u201d because in other countries, most notably in South Africa, constitutional jurisprudence moved in the opposite direction, i.e. by facilitating the protection, respect and fulfilment of such human rights via <\/i>judicial enforcement.[68]<\/span><\/a> When the crisis erupted, it was pretty clear that the Irish courts were going to be highly unlikely to do anything with positive implications for resource policy or allocation. Certainly, there were some more procedural cases that sought to challenge some of the international agreements that Ireland signed up to during the crisis, but these were unsuccessful.[69]<\/span><\/a><\/span><\/p>\n

\u00a0<\/span><\/p>\n

v. Spain<\/span><\/b><\/p>\n

Another country witnessing significant crisis-related constitutional changes has been Spain, which underwent a Financial Sector Adjustment Programme between 2012 and 2014, because of the precarious \u201chealth\u201d of some of its biggest banks.[70]<\/span><\/a> In this kingdom, the national constitution was changed on 27 September 2011 without any popular vote, precisely under the political justification of coping with the urgent economic crisis (cf. AID: 451-56). As in Italy, here too the so-called \u201cgolden rule<\/i> of budgetary stability\u201d was introduced into the constitution, this time by modifying Art.135 and granting the central government new powers to \u201cimpose budgetary stability\u201d over the largely autonomous communities of the kingdom (cf. AID: 455; emphasis in the original).[71]<\/span><\/a> Only three Parliamentary votes on the national constitution have been held in Spain since 1978. One of them was already inspired by the European institutions and partners, i.e. the 1992 vote to ratify the Maastricht Treaty. The other vote was, in 1978, on the ratification of the constitution itself. Constitutional change, in Spain, is rare. Additionally, budgetary stability was already part of the Spanish constitutional order, given the Constitutional Court\u2019s judgment nr. <\/span>134\/2011<\/span><\/a> concerning laws 5\/2001 and 18\/2001 (in Spanish; cf. also AID: 451-53). These laws addressed and accepted a number of EU recommendations on budgetary stability within their member states. Why introduce the \u201cgolden rule\u201d in such an atypical manner, then?<\/span><\/p>\n

\u00a0<\/span><\/p>\n

One likely answer that can be extrapolated from the 2011 Spanish constitutional text and context is the fear of the State\u2019s institutional creditors, especially large foreign financial holdings, of losing their money. [A] As the constitutional text is concerned, it could be argued that the 2011 constitutional amendment leaves the Spanish State, like its Italian counterpart, a modicum of room for technical manoeuvres aimed at implementing \u201cbudget stability\u201d rather than a \u201cbalanced budget\u201d via <\/i>Keynesian responses to fluctuations of the economic cycle and\/or at maintaining the \u201csocial sustainability\u201d of the State itself (AID: 455). Again, eighty years of macroeconomic science and experience could not be suddenly obliterated. Nonetheless, the constitutional amendment at issue states most blatantly that \u201cabsolute priority<\/i>\u201d must be given to the payment of sovereign debt and that \u201c[t]hese appropriations may not be subject to amendment or modification\u201d (art.135, c.3). Ipso dicto<\/i>, the State\u2019s creditors, including foreign ones, are prioritised over its citizens (idem<\/i>; emphasis added).[72]<\/span><\/a> [B] As the constitutional context is concerned, Spanish experts were left baffled, to say the least, by the fact that: (1) no popular vote was called on the 2011 amendment; (2) no substantial Parliamentary debate was allowed (an ad hoc<\/i> fast-track system conceded only one<\/i> debate on the matter and this was deemed constitutional by the Constitutional Court); and (3), for the first time in Spanish history, no large consensus was sought in the national Parliament, since the two main Madrid- and Castile-based parties (i.e. the socialists and the Christian-democrats) had just enough votes to pass the amendment in accordance with formal requirements for constitutionality.[73]<\/span><\/a> Considering the few previous, certainly consensus-based constitutional reforms, as well as the constitutionally acknowledged strong local autonomies, this third point remains a most striking aspect of the matter and may help explain the fervid resurgence of separatist parties in Catalonia, the Basque country and Valencia over the past four years (AID: 456-63).[74]<\/span><\/a><\/span><\/p>\n

\u00a0<\/span><\/p>\n

vi. Other significant cases<\/span><\/b><\/p>\n

An overview of the ipso dicto <\/i>victimised \u201cPIIGS\u201d gives us already a lot of food for thought. Before moving to our concluding section, however, let us recall very few significant cases from other EU countries. <\/span><\/p>\n

\u00a0<\/span><\/p>\n

vi1. Latvia<\/span><\/b><\/p>\n

The former \u201cBaltic tiger\u201d of Latvia, for example, underwent between 2008 and 2012 an Economic Adjustment Programme, which led in turn to major austerity measures, and joined eventually the Eurozone in 2014.[75]<\/span><\/a> Austerity measures produced in turn severe impoverishment for large sectors of the population\u2014especially the elderly\u2014and mass emigration\u2014especially the youth. In this context, the nation\u2019s constitutional court issued a number of decision dealing with such austerity measures, some of which were deemed acceptable because of reduced State revenues (cases 2009-08-01 one pensions\u2019 indexing, 2009-44-01 on reduced child benefits, 2010-17-01 on reduced unemployment benefits, 2010-21-01 on reduced future State pensions). Others, on the contrary, were deemed inacceptable (cases 2009-76-01 on 70% reduction of retirement pensions of employees of the Ministry of Interiors, 2009-88-01 on 10% reduction of retirement pensions for the Army, 2010-60-01 on wage freeze for judges). In the latter event, articles 1 (legitimate expectations and proportionality) and 109 (social rights) of the national constitution were regularly referred to in order to justify the negative judgment.[76]<\/span><\/a> Indeed, even when deeming constitutional an early round of reduced old-age pension disbursements (case 2009-43-01), the court deemed it important to clarify: \u201ceven if the State reduces the pension disbursement amount for a period of time in the situation of rapid economic recession, there is still a definite body of fundamental rights<\/i> that the State is not entitled to derogate from\u201d (AID: 118; emphasis added).[77]<\/span><\/a><\/span><\/p>\n

\u00a0<\/span><\/p>\n

vi2. Romania<\/span><\/b><\/p>\n

Romania underwent a series of Financial Assistance Programmes over the years 2009-11, 2011-13 and 2013-15.[78]<\/span><\/a> They too translated into a number of austerity measures impoverishing what was under many accounts the already-poorest member of the EU.[79]<\/span><\/a> On the one hand, cost-saving reforms of the national constitutions were attempted. First, the reduction of the houses of parliament to one and the introduction of the principle of the \u201cbalanced budget\u201d in the constitutional text were proposed in 2011. Then, the former attempt having failed to gain enough political support, a new proposal comprising no fewer than 128 amendments of the constitution was presented in parliament in 2014, but no final decision has been taken yet. On the other hand, the Constitutional Court of Romania, per<\/i> its decisions nr. 872 & 873 published in the Official Gazette nr. 433 (25 June 2010), pointed out that: \u201cthe state has a positive obligation to take all measures necessary to achieve that objective and to refrain from any conduct likely to encroach the right to social security<\/i>\u201d (AID: 118; emphasis added). Like their colleagues in the former \u201cBaltic tiger\u201d, social and economic rights have been acknowledged by the constitutional court and the negative impact of austerity measures upon them condemned.<\/span><\/p>\n

\u00a0<\/span><\/p>\n

vi3. Germany<\/span><\/b><\/p>\n

In Germany, finally, the constitutional \u201cCourt declared unconstitutional a law reducing benefits for social assistance, on the basis that the legislator had failed to respect the fundamental right to guarantee a subsistence minimum, which is derived by the principles of human dignity<\/i> and the social state<\/i>\u201d (AID: 119; emphasis added).[80]<\/span><\/a> Emblematically, in the country that is regarded by most pundits as the politically most powerful member of the EU, both human dignity and the social state are highlighted by the constitutional court as essential benchmarks for the budgetary considerations of the State. It is not investors\u2019 confidence that legitimises State action, but its function qua <\/i>constitutionally mandated civil commons.<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Critical considerations<\/span><\/b><\/p>\n

Recessions happen. Crises happen. Depressions happen. Unlike tsunamis and earthquakes, however, it is not nature\u2019s tampered yet untamed power that causes them. Rather, they result from the combined responsibility of economic agents and the legal-political ones legislating upon, fostering, monitoring and sanctioning the former\u2014or failing to do so. Sometimes, the agents responsible for economic downturns are easier to spot than other times. As far as the 2008 crisis is concerned, the key-role played by gargantuan financial institutions under a deregulated normative framework has been clearly identified and denounced by ad hoc<\/i> Parliamentary commissions[81]<\/span><\/a> and top-level government officials.[82]<\/span><\/a> Yet, as the crisis deepened and expanded well beyond the borders of high finance, the brunt of the collapse has been borne by individuals that had hardly anything or nothing to do with high finance: poorer pensioners, poorer public employees, poorer disabled individuals, fired workers of private enterprises, and innocent children deprived of medical care and educational or cultural opportunities that will never come back, for, whatever improvement there may be in the future, their childhood will be over by then.[83]<\/span><\/a> Though rarely discussed in connection with the for-profit toxic assets that caused the ongoing crisis in the first place, innocent children are neither a rhetorical flourish nor merely some of the blameless victims of financial wizardry. They are the ontological precondition of the next generations in the world\u2019s communities. Civilised humanity is at stake here. This is no hyperbole. As shown in this account, more than one constitutional court has claimed that the ongoing crisis has caused such socio-economic disruptions that not only well-established constitutional principles of equality and proportionality are endangered\u2014and so are socio-economic rights too\u2014but the very dignity of the human person has been encroached upon. Albeit somewhat vague, it is hard to imagine any stronger pronouncement coming from constitutional judges, who have come to confront, among other things, the malnutrition, destitution and death engendered by austerity laws and policies over much of Europe.[84]<\/span><\/a> <\/span><\/p>\n

\u00a0<\/span><\/p>\n

As to applicable ethical criteria, it can be argued that the whole logic inherent to the adjustment processes witnessed in Europe is nothing but cruel<\/i>.[85]<\/span><\/a> On the one hand, affluent private investors and shareholders are rescued from the losses caused by their own or their money-managers\u2019 bad market choices through the indebting of public bodies and the ensuing reduction of social goods provision, whilst private banks enjoy ECB\u2019s special credit lines (e.g. 2008, 2011 and 2012 LTROs), which have been used inter alia<\/i> to speculate on EU-based public debt instead of lending money to the shrinking real economy. On the other hand, no such ample and prompt credit is provided to the populations, for such a provision might be inflationary; thus Europe\u2019s peoples are left to suffer both psychologically and physically, not just economically, for their health is negatively affected, the growth of their offspring reduced in quality and opportunity, and the lives of some ended under avoidable circumstances. First things are not coming first. Quite the opposite, the relentless crushing of livelihoods and lives goes on for the sake of continued money-accruing. As the current Pope of the Church of Rome has recently written on this point: \u201c[t]he worldwide crisis affecting finance and the economy lays bare their imbalances and, above all, their lack of real concern for human beings\u201d, thus adding to the \u201cpersistent injustice, evil, indifference and cruelty<\/i>\u201d that we witness \u201call around us\u201d (emphasis added).[86]<\/span><\/a> No less forcefully does Greek constitutional lawyer Giorgios Kasimatis state (emphasis added):<\/span><\/p>\n

\u00a0<\/span><\/p>\n

The Loan Agreements (the Loan Facility Agreement; the Memorandum of Understanding between Greece and the Euro-area Member States and the agreement with the IMF for the Participation of Greece in the European Financial Stabilization Mechanism to the purpose of obtaining the approval of a Stand-by arrangement by the International Monetary Fund) form a system of international treaties the likes of which\u2026 the <\/span><\/i>cruelty<\/span><\/b> of the terms and the extent of breach of fundamental legal rights and principles\u2026 have never been enacted in the heart of Europe and the European completion; not since the World War II.<\/span><\/i>[87]<\/span><\/span><\/a><\/i><\/p>\n

\u00a0<\/span><\/p>\n

But who is the cruel invader here? There are no tanks, no armed divisions in view. We invite the reader to reflect on a statement that the former President of the German Central Bank, Hans Tietmeyer, made during the 1990s, as the Europe-wide process of liberalisation of financial markets was being implemented and the Euro was in the process of being launched: \u201cthe financial markets will become the gendarmes of the nations<\/i>\u201d[88]<\/span><\/a> (emphasis added); or, in a slightly longer version quoted by Uruguay\u2019s famous novelist Eduardo Galeano: \u201c<\/span>Financial markets more and more play the role of gendarmes. Politicians should understand that from now on they are under the control of financial markets<\/i>.” (pp.151-52; emphasis added)[89]<\/span><\/a> <\/span>Meant as a metaphor, Tietmeyer\u2019s paradigm evokes a military occupation, which is what Kasimatis refers to: World War II, to be precise. The cruel invader is transnational private finance, as embodied by the \u201cEuropean financial institutions\u201d that the Troika set itself to rescue through the nation-wrenching bailout programme foreshadowed by the aforementioned Brazilian IMF board director Batista in 2010. <\/span><\/p>\n

\u00a0<\/span><\/p>\n

In this connection, signs of an evolving \u201csupranational economic constitution\u201d serving the wishes of large transnational creditor institutions are detected by some of Europe\u2019s noted constitutionalists (e.g. AID: 115). These legal scholars have no hesitation in regarding such a development as a silent coup d\u2019\u00e9tat<\/i> directed against \u201cnational democracy\u201d, e.g. by means of \u201cultra vires\u201d decisions on matters well \u201coutside EU competencies\u201d in the memoranda between the Greek State and its institutional creditors (e.g. Decision 2010\/320\/EU; AID: 117 & 243-55). Italy\u2019s former finance minister and current conservative Senator of the Republic Giulio Tremonti dubs it adamantly \u201cfinancial fascism<\/i>\u201d, whereby the money-preferences of transnational financial institutions trump the constitutional rights of Europe\u2019s citizens (emphasis in the original).[90]<\/span><\/a> Politicians use even stronger language than constitutional judges.<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Yet, it is not only European financial institutions that are engendering a \u201csupranational economic constitution\u201d that caters to their wants. In a public May 2013 report entitled \u201c<\/span>The Euro area adjustment: about halfway there<\/span><\/a>\u201d, the Europe Economic Research Team of US financial giant J.P. Morgan openly laments that Europe\u2019s national \u201cConstitutions tend to show a strong socialist influence, reflecting the political strength that left wing parties gained after the defeat of fascism\u201d, thus allowing inter alia<\/i> for \u201cconstitutional protection of labor rights\u201d and \u201cthe right to protest if unwelcome changes are made to the political status quo\u201d, both of which prevent these nations from undergoing \u201cfiscal and economic reform agendas\u201d meeting their creditors\u2019 desiderata (p.12). \u201cPortugal\u201d, \u201cSpain\u201d, \u201cItaly and Greece\u201d are singled out as having constitutions that constrain governmental action in this sense, as though the democratic constitutions emerged after World War II were not an affirmation of those freed peoples\u2019 national self-determination, but the source of \u201cdeep seated political problems\u201d that impede the European Monetary Union (EMU) \u201cto function properly\u201d (pp. 12-13). To put it bluntly, the world\u2019s gendarmes do not like democracy, inasmuch as it does not produce the results desired by J.P. Morgan\u2019s shareholders and investors. Moreover, as these gendarmes criticise constitutions that were born after, and as a result of, Europe\u2019s bitter struggle against fascism, they exemplify and substantiate Tremonti\u2019s observation regarding an emergent financial fascism, which prioritises creditor interests over citizens\u2019 rights.[91]<\/span><\/a> It might not be merely a matter of strong words, then.<\/span><\/p>\n

\u00a0<\/span><\/p>\n

Nonetheless, whatever J.P. Morgan\u2019s expert team may be upset with, European human rights jurisprudence is pretty straightforward on who comes first. In a pivotal adjudication of the European Court of Human Rights (ECHR), i.e. Capital Bank AD v. Bulgaria<\/i> nr. 49429\/99, 24 November 2005 para. 110-11, it is made clear that States\u2019 obligations under human rights conventions and their protocols persist, no matter what subsequent obligations States may agree upon with international institutions such as, in this case, the IMF (cf. AID: 755-56). This is the case despite the right to private property being enshrined in the first protocol of the European Council\u2019s Convention of Human Rights and the ECHR being primarily not<\/i> about social and economic rights, but rather civil and political ones. Precedents making the same point exist, though perhaps in not so explicit a manner, in abundant number, e.g. Prince Adam II of Lichtenstein v. Germany <\/i>[GC], nr. 42527\/98, para. 47-8, ECHR 2001-VIII; <\/i>and Bosphorus Hava Yollari Turzim ve Ticaret Anonim Sirketi v. Ireland<\/i> [GC], nr. 45036\/98, para. 153-4, ECHR 2005; Matthews v. the United <\/i>Kingdom [GC], nr. 24833\/94, ECHR 1999-I; Waite and Kennedy v. <\/i>Germany [GC], nr. 26083\/94, ECHR 1999-I; Beer and Regan v. Germany <\/i>[GC], nr. 28934\/95, 18 February 1999; Al-Adani v. the United <\/i>Kingdom [GC], nr. 35763\/97, ECHR 2001-XI.[92]<\/span><\/a> Our case could become even stronger if we were to add additional sources of human rights legislation that bind all European countries, both within and outside the EU, but we do not need to do it: the ECHR\u2019s jurisprudence is more than adequate here.<\/span><\/p>\n

\u00a0<\/span><\/p>\n

We focus upon human rights because that is what the cited constitutional judges and experts claim to be at stake, as the official constitutional rejection occurred of some of the laws passed in the context of austerity policies cutting public expenditures to scoop up resources for institutional creditors and a fortiori<\/i> private banks\u2019 shareholders and investors. If unemployment, poverty and reduced social provisions by the State increase dramatically, then the fundamental human right of personal dignity is denied, not to mention human rights to adequate nutritional standards, as exemplified in case 10\/2010 of Italy\u2019s constitutional court (AID: 505-13). If public-sector workers, whether current or former, are singled out for prolonged or repeated cuts, freezes and \u201csolidarity contributions\u201d, proportionality and equality are also being denied. By holding against the power of institutional creditors and eventually<\/i> reminding the legislator and the executive of their paramount human rights obligations,[93]<\/span><\/a> the constitutional bodies of Europe are being true to their life-serving function as civil commons.[94]<\/span><\/a> As Cicero had already realised long ago, that function is the ultimate ground for the legitimacy of public policy and legislation: \u201cOllis salus populi suprema lex esto<\/i>\u201d.[95]<\/span><\/a><\/span><\/p>\n

\u00a0<\/span><\/p>\n

Works cited from the 7th<\/sup> volume of the Annuaire international des droits de l\u2019homme<\/i> (AID):<\/span><\/b><\/p>\n

CHRISTINA M. AKRIVOPOULOU, \u201cEurozone crisis and social rights protection in the south European jurisprudence\u201d, pp. 3-13.<\/span><\/p>\n

GEORGE KATROUGALOS, \u201cThe crisis of the European social state\u201d, pp. 105-23.<\/span><\/p>\n

DAVID SCHNEIDERMAN, \u201cA New Global Economic Constitutional Order in the Making? <\/span>The Case of International Investment Law\u201d, pp. 243-55.<\/span><\/p>\n

ANTONIS BREDIMAS, \u201c\u00c9tat de n\u00e9cessit\u00e9, force majeure et dette souveraine en droit international \u00e9conomique avec mention sp\u00e9cifique du cas de la Gr\u00e8ce\u201d, pp. 297-329.<\/span><\/p>\n

MARINA CALAMO SPECCHIA, \u201cLa crise \u00e9conomique et l\u2019\u00e9quilibre budg\u00e9taire en Italie. <\/span>Quel avenir pour les droits sociaux?\u201d, pp. 387-404.<\/span><\/p>\n

\u00c1NGEL RODR\u00cdGUEZ, \u201cSovereign Debt, Decentralization and Fundamental Social Rights After the Constitutional Reform of 2011 in Spain\u201d, pp. 445-64.<\/span><\/p>\n

XENOPHON CONTIADES\/ALKMENE FOTIADOU, \u201cThe debt crisis proving ground. <\/span>Social rights theory revisited\u201d, pp. 573-82.<\/span><\/p>\n

STAVROULA N. KTISTAKI, \u201cLes droits sociaux en p\u00e9riode de crise \u00e9conomique. Le cas de la Gr\u00e8ce\u201d, pp. 615-34.<\/span><\/p>\n

APPENDIX<\/strong><\/p>\n

Since the 2015 Winter Symposium at which this paper was presented, the following major constitutional events have taken place in some of the countries discussed above:<\/p>\n

GREECE<\/p>\n

On 27 June 2014, the Greek Council of State in Plenum issued Decision 2307\/2014 declaring all labour law measures implementing the second Memorandum of Understanding (MoU) in compliance with the Greek Constitution, the TFEU (arts 125 and 136), the ECHR (art 11 and art 1 of its 1st<\/sup> Additional Protocol) and ILO Conventions 87, 98 and 154, except those measures amending recourse to labour arbitration, which were found contrary to the principle of collective autonomy as guaranteed in the Greek Constitution (art 22 para 2). The Decision was the result of appeals lodged in March and April 2012 by nine trade unions, including the General Confederation of Workers of Greece (GSEE), contesting the validity of Ministerial Act 6\/2012 which implemented the austerity labour measures contained in the second MoU. (Cf. European University of Cyprus\u2019 Matina Yannakourou, \u201cLabour measures of Memorandum II before the Greek Council of State: Decision 2307\/2014 (Plenum)\u201d, available at: http:\/\/eurocrisislaw.eui.eu\/wp-content\/uploads\/2015\/04\/Greek-Council-of-State-2307_2014.pdf<\/u><\/a>)<\/p>\n

12 July 2015, 3rd bailout agreement via<\/em> European Stability Mechanism, 2015\u20142018, 86 billion EUR loan, of which 25 to recapitalise and resolve Greek banks (the first 10 billion EUR disbursement was made available immediately for this purpose); further cuts introduced, a new VAT system, previous laws to undo some of the previous austerity revoked, and a plan drafted to privatise about 50 billion of public assets; EU aid to reduce unemployment and poverty promised via <\/em>Jean-Claude Juncker\u2019s European Commission\u2019s Investment Plan for Europe (EC IPE) over the period 2015\u20142017. (Cf. Euro Summit Statement, Brussels, 12 July 2015, SN 4070\/15<\/u><\/a>).<\/p>\n

PORTUGAL<\/p>\n

Adjudication 413\/2014<\/u><\/a> on Arts. 33, 75, 115 & 117 of Law nr. 83-C\/2013 cutting public-sector pay, pensions and welfare provisions: unconstitutional because of lack of equality<\/em>, proportionality<\/em> and trust<\/em>.<\/p>\n

ITALY<\/p>\n

Judgment 70\/2015<\/u><\/a> of the Constitutional Court confirms unconstitutionality of the Monti government\u2019s (emergency) law decrees nr. 201, 6 Dec. 2011, and 214, 22 Dec. 2011. Pensioners\u2019 rights were unduly denied because of \u201cunspecified financial needs\u201d [esigenze finanziarie non illustrate in dettaglio<\/em>]. Pension rights are said not<\/em> to be untouchable, but more caution and clarity are required whenever touching them.<\/p>\n

SPAIN<\/p>\n

For the first time in Spanish history, municipalities were able to lodge an action of unconstitutionality for breach of local competences (the law requires that 1,160 municipalities representing at least one-sixth of the Spanish population act together, i.e. about 7,8 million inhabitants; more than 3,000 municipalities cooperated in this case, about 850 of which from Catalonia). The municipalities oppose the reconfiguration of local social services carried out by the austerity laws 27\/2013, whereby the management of social services can be transferred to the council of the province in municipalities of less than 20,000 inhabitants. Like the other\u00a0actions against the Law 27\/2013 of Rationalisation and Sustainability of the Local Administration, this action of unconstitutionality\u00a0is\u00a0pending of resolution by the Spanish Constitutional Court. (Cf. \u201cEl TC admite a tr\u00e1mite el conflicto en defensa de la autonom\u00eda local planteado por 3.000 ayuntamientos contra la Ley 27\/2013<\/u><\/a>\u201d, Juridicas<\/em>, 11 September 2014).<\/p>\n

\n
\n
\n

[1]<\/a> Cf. Petruno, T. (2009, 4 June), \u201cMozilo knew hazardous waste when he saw it<\/a>\u201d, Los Angeles Times<\/i>.<\/span><\/p>\n<\/div>\n

\n

[2]<\/a> Cf. Cf. Chang, S-S., Stuckler, D., Yip, P. & Gunnell, D. (2013), \u201cImpact of 2008 global economic crisis on suicide: time trend study in 54 countries<\/a>\u201d, BMJ<\/i> 2013;347:f5239; Christian, P. (2010), \u201cImpact of the Economic Crisis and Increase in Food Prices on Child Mortality: Exploring Nutritional Pathways\u201d, The Journal of <\/i>Nutrition 140(1): 177-181; Economou, M., Madianos, M., Peppou, L.E., Theleritis, C. & Stefanis, C.N. (2012) \u201cSuicidality and the Economic Crisis in Greece\u201d, The Lancet<\/i> 380: 337; Faresj\u00f6, \u00c5., Theodorsson, E., Chatziarzenis, M., Sapouna, V., Claesson, H.-P., Koppner, J. & Faresj\u00f6, T. (2013) \u201cHigher Perceived Stress but Lower Cortisol Levels Found among Young Greek Adults Living in a Stressful Social Environment in Comparison with Swedish Young Adults\u201d PLoS ONE<\/i> 8(9): e73828. doi:10.1371\/journal.pone.0073828; Kentikelenis, A., Karanikolos, M., Papanicolas, I., Basu, S., McKee, M. & Stuckler, D. (2011), \u201cHealth Effects of Financial Crisis: Omens of a Greek Tragedy\u201d The Lancet<\/i> 378: 1457-58. As to the economic aetiology at work, cf. US economist Michael Hudson on his website<\/a>.<\/span><\/p>\n<\/div>\n

\n

[3]<\/a> E.g. University of Central Arkansas (n.d.a.), \u201cWhy Study Economics at UCA?<\/a>\u201d.<\/span><\/p>\n<\/div>\n

\n

[4]<\/a> Cf. Mesco, M. (2014, 19 June), \u201cItaly\u2019s Opera Crisis. Government austerity measures are leaving storied theatres in a lurch<\/a>\u201d, Wall Street Journal<\/i>.<\/span><\/p>\n<\/div>\n

\n

[5]<\/a> Cf. Organisation for Economic Co-operation and Development (OECD; 2013), Pensions at a Glance 2013. OECD and G20 Indicators<\/i><\/a>.<\/span><\/p>\n<\/div>\n

\n

[6]<\/a> Cf. European Federation of Nurses Associations (EFN; 2012), Caring in Crisis. The Impact of the Financial Crisis on Nurses and Nursing<\/i><\/a>.<\/span><\/p>\n<\/div>\n

\n

[7]<\/a> Cf. Lulle, A. (2014), \u201cBaltic Triplets? Out-migration Migration and Responses to Crisis\u201d, Regional Formation and Development Studies<\/i> 3(11): 135-45.<\/span><\/p>\n<\/div>\n

\n

[8]<\/a> Cf. Stuckler, D. & Basu, S. (2013), The Body Economic: Why Austerity Kills<\/i>, London: Allen Lane.<\/span><\/p>\n<\/div>\n

\n

[9]<\/a> The volume is abbreviated hereafter as AID, with page numbers indicated in the main body of the present text; the actual articles referred to hereby are listed separately at the end. All other references are listed either as hyperlinks in this text\u2019s main body or in its endnotes.<\/span><\/p>\n<\/div>\n

\n

[10]<\/a> Cf. Baruchello, G. & Johnstone, R.L. (2011), \u201cRights and Value. Construing the International Covenant on Economic, Social and Cultural Rights as Civil Commons\u201d, Studies in Social Justice, <\/i>5(1): 91-125.<\/span><\/p>\n<\/div>\n

\n

[11]<\/a> McMurtry, J. (2010), \u201cWhat is Good? What is Bad? The Value of All Values Across Time, Place and Theories\u201d, Encyclopedia of Life Support Systems<\/i><\/a>, Paris & Oxford: Eolss-Unesco, para. 5.34.10.<\/span><\/p>\n<\/div>\n

\n

[12]<\/a> Sweden, Denmark and Finland are part of the EU. Finland alone uses the Euro. <\/span><\/p>\n<\/div>\n

\n

[13]<\/a> Depending on the countries\u2019 specific weak spots, financial speculation chose different targets, e.g. currency (Iceland), sovereign debt (Italy), bank\u2019s shares and obligations (Spain).<\/span><\/p>\n<\/div>\n

\n

[14]<\/a> Cf. Stuckler & Basu, op. cit.<\/i>; Kentikelenis, A., Karanikolos, Reeves, A. McKee, M. & Stuckler, D. (2014), \u201cGreece\u2019s Health Crisis: From Austerity to Denialism\u201d, The Lancet<\/i> 383: 748-53.<\/span><\/p>\n<\/div>\n

\n

[15]<\/a> Cf. IMF (2013), \u201cEx Post Evaluation of Exceptional Access under the 2010 Stand-By Arrangement<\/a>\u201d: \u201cWith debt restructuring off the table, Greece faced two alternatives: default immediately, or move ahead as if debt restructuring could be avoided. The latter strategy was adopted, but in the event, this only served to delay debt restructuring and allowed many private creditors to escape.\u201d (p.27)<\/span><\/p>\n<\/div>\n

\n

[16]<\/a> Cf. Clerin, M-F. (2010), \u201cWhat About Greece and Goldman Sachs?<\/a>\u201d, Diplomatic World<\/i> 26.<\/span><\/p>\n<\/div>\n

\n

[17]<\/a> It is interesting to note how life-based metaphors abound in the pundits\u2019 descriptions of economic affairs (e.g. \u201chealth\u201d, \u201ccontagion\u201d, \u201cmetastasis\u201d), which are however conducted in such a way as to cause literal harm to living beings (cf. Stuckler & Basu, op. cit.<\/i>) and without taking any noticeable account of them (e.g. IMF, op. cit.<\/i>).<\/span><\/p>\n<\/div>\n

\n

[18]<\/a> Cf. \u00c1rnason, \u00c1.\u00de. (2013) \u201cColonial Past and Constitutional Momentum: The Case of Iceland<\/a>\u201d, Nordicum-Mediterraneum<\/i> 8(2); Baruchello, G. (2014) \u201cThe Picture\u2014Small and Big: Iceland and the Crises<\/a>\u201d, Nordicum-Mediterraneum<\/i> 9(3).<\/span><\/p>\n<\/div>\n

\n

[19]<\/a> Veblen, T. (1923) Absentee Ownership: Business Enterprise in Recent Times<\/i>, New York: Huebsch. Continuing the classical tradition of Ricardo and Mill, Veblen regarded high finance as a rent-seeking wealth-transferring endeavour, i.e. parasitic upon the real economy, and capable of twisting the constitutionally elected governments\u2019 hand in supplying it with public wealth by application or sheer threat of withdrawal of credit from the national economy (cf. Hudson, M. (2012, 27 July), \u201cVeblen\u2019s Institutionalist Elaboration of Rent Theory<\/a>\u201d). Unlike classical and neoclassical economics, which are built upon the paradigm of Newtonian physics, Veblen\u2019s institutional economics is built upon the paradigm of Darwinian biology. We believe that the latter\u2019s notions of predation and parasitism, for instance, describe insightfully the actual behaviour of living economic agents in real-world economic settings.<\/span><\/p>\n<\/div>\n

\n

[20]<\/a> I.e. the \u201cMemorandum of Economic and Financial Policies\u201d, the \u201cMemorandum of Understanding on Specific Economic Policy Conditionalities\u201d and the \u201cTechnical Memorandum of Understanding\u201d.<\/span><\/p>\n<\/div>\n

\n

[21]<\/a> All relevant official documents are available, in English, on the website<\/a> of the Hellenic Foundation for European and Foreign Policy.<\/span><\/p>\n<\/div>\n

\n

[22]<\/a> Cf. \u201cForeign direct investment – net inflows (% of GDP) in Greece<\/a>\u201d, Trading Economics<\/i>.<\/span><\/span><\/p>\n<\/div>\n

\n

[23]<\/a> Dunbar, N. & Martinuzzi, E. (2012, 6 March), \u201cGoldman Secret Greece Loan Shows Two Sinners as Client Unravels\u201d.<\/a> <\/span><\/p>\n<\/div>\n

\n

[24]<\/a> E.g. Nobel-prize economist and former World Bank\u2019s Chief Economist Stiglitz, J. (2002), Globalization and its Discontents<\/i>, London: Penguin.<\/span><\/p>\n<\/div>\n

\n

[25]<\/a> Cf. Jubilee Debt Campaign (2015), \u201cSix key points about Greek debt and the forthcoming election<\/a>\u201d; Zettelmeyer, J., Trebesch, C. & Gulati, M. (2013), \u201cThe Greek Debt Restructuring: An Autopsy<\/a>\u201d EBRD.<\/span><\/p>\n<\/div>\n

\n

[26]<\/a> \u201cPrivate creditors were able to significantly reduce their exposure\u201d and \u201cescape\u201d, whilst \u201c[the] program\u2026 failed to achieve critical objectives, especially with regard to restoring growth, ensuring debt sustainability, and regaining market access\u201d, i.e. put Greek public finances into safety (IMF, op. cit.<\/i>, pp.11, 17 & 27). Key socio-demographic indicators as those recorded in Stuckler & Basu, op. cit. <\/i>are quite simply absent from the IMF\u2019s account.<\/span><\/p>\n<\/div>\n

\n

[27]<\/a> Cf. Stuckler & Basu, op. cit.<\/i><\/span><\/p>\n<\/div>\n

\n

[28]<\/a> \u201cThe Loan Agreements between the Hellenic Republic, the European Union and the International Monetary Fund\u201d [Formerly confidential governmental and inter-governmental documentation, distributed to the participants in the conference \u201cSovereign debt and fundamental social rights\u201d, organised by the International Association of Constitutional Law and held in Athens, Greece, June 28-29, 2013] (p.58)<\/span><\/span><\/p>\n<\/div>\n

\n

[29]<\/a> IMF, op. cit.<\/i>, p.14.<\/span><\/p>\n<\/div>\n

\n

[30]<\/a> BIS Review 139\/2009.<\/span><\/p>\n<\/div>\n

\n

[31]<\/a> The Wall Street Journal<\/i> (2013, 8 October), Streaming Coverage<\/a>.<\/span><\/p>\n<\/div>\n

\n

[32]<\/a> Brown, E. (2015, 10 March), \u201cThe ECB\u2019s Noose Around Greece: How Central Banks Harness Governments<\/a>\u201d. Paying interest on pre-existing debt by taking on more debt is what development economist G\u00e9rard de Bernis (1999) calls \u201cperpetual debt\u201d or the \u201cusury model\u201d of Third World countries (cf. \u201cGlobalization: History and Problems<\/a>\u201d, ISMEA<\/i>).<\/span><\/p>\n<\/div>\n

\n

[33]<\/a> Cf. also Ferguson, N., Schaab, A. & Schularick, M. (2014, 26 May), \u201cCentral Bank Balance Sheets: Expansion and Reduction since 1900<\/a>\u201d [paper presented at the May 2014 ECB conference in Sintra], showing how the \u201cdebt crisis\u201d of the Eurozone is the direct result of expanding central-bank balance sheets aimed at rescuing the private banking sector from its bad bets, as well as the size of this rescue: \u201cMeasured both by scale and incidence, the post-2007 expansion episode has eclipsed all other historical precedents.<\/span>\u201d (p.34)<\/span><\/p>\n<\/div>\n

\n

[34]<\/a> Black, J. & Kennedy, S. (2015, 22 January), \u201cDraghi Commits to Trillion-Euro QE in Deflation Fight<\/a>\u201d, Bloomberg Business<\/i>.<\/span><\/p>\n<\/div>\n

\n

[35]<\/a> E.g. Greenspan, op. cit<\/i>. Cf. also Sherman, M. (2009), \u201cA Short History of Financial Deregulation in the United States<\/a>\u201d, Center for Economic and Policy Research.<\/span><\/p>\n<\/div>\n

\n

[36]<\/a> E.g. US President Barack Obama, who stated on 14 April 2009: \u201cThere are a lot of Americans who understandably think that government money would be better spent going directly to families and businesses instead of to banks\u2026 but the truth is that a dollar of capital in a bank can actually result in eight or ten dollar of loans to families and businesses.\u201d <\/span> (\u201cRemarks by the President on the Economy<\/a>\u201d)<\/span><\/p>\n<\/div>\n

\n

[37]<\/a> Cf. Chen, Q., Filardo, A.J., He, D. & Zhu, F. (2014, 18 September), \u201cFinancial Crisis, Unconventional Monetary Policy and International Spillovers\u201d, HKIMR Working Paper No. 23\/2014, SSRN<\/i>; Rogers, J.H., Scotti, C. & Wright, J.H. (2014), \u201cEvaluating asset-market effects of unconventional monetary policy: A multi-country review\u201d, Economic Policy<\/i> 29(80): 749-99.<\/span><\/p>\n<\/div>\n

\n

[38]<\/a> ECB (2014, 12 June), \u201cWhy has the ECB introduced negative interest rates?\u201d.<\/a><\/span><\/p>\n<\/div>\n

\n

[39]<\/a> Cf. Brown, E. (2013), The Public Bank Solution<\/i>, Baton Rouge: Third Millennium. <\/span><\/p>\n<\/div>\n

\n

[40]<\/a> As cited in Brown, B.E. (1969), \u201cThe French Experience of Modernization\u201d, World Politics<\/i>, 21(3): 366-91.<\/span><\/p>\n<\/div>\n

\n

[41]<\/a> Hudson, M. <\/span>(2014, 3 April), \u201c<\/span>P is for Ponzi<\/a>\u201d.<\/span><\/span><\/p>\n<\/div>\n

\n

[42]<\/a> All translations from French and Italian into English are by Giorgio Baruchello.<\/span><\/p>\n<\/div>\n

\n

[43]<\/a> This is the constitutional ground for lawful withdrawal or redistribution of private property.<\/span><\/p>\n<\/div>\n

\n

[44]<\/a> All European countries in this study have pension systems consisting of a primary public pension<\/span><\/strong> pillar, plus voluntary occupational, personal or profession-based pension<\/span><\/strong> saving plans (cf. Pension Funds Online<\/i><\/a>, 2015).<\/span><\/p>\n<\/div>\n

\n

[45]<\/a> The term \u201cPIIGS\u201d was coined in 2009 by the Financial Times<\/i> (Cf. Petry, J., (2013, 8 December) \u201cConstructing the Eurozone Crisis: A Tale of PIIGS, Debt, and Austerity<\/a>\u201d, Pinpoint Politics<\/i>). With it, the public authorities and the peoples of few EU countries are mocked for being in trouble, despite their trouble\u2019s fountainhead being over-indebted US private investment banks. The result is that the public opinion forgets about the private sector\u2019s leveraged, i.e. debt-based, bonanza leading to the 2008 collapse, including the notorious \u201ctoxic assets\u201d, and all that is talked about is instead those countries\u2019 \u201csovereign-debt crisis\u201d, as though the States\u2019 financial difficulties were the cause rather than the effect of the crisis (cf. McMurtry, J. (2013), The Cancer Stage of Capitalism<\/i>, London: Pluto).<\/span><\/p>\n<\/div>\n

\n

[46]<\/a> All relevant documents are available, in English, on the European Commission\u2019s website<\/a>.<\/span><\/p>\n<\/div>\n

\n

[47]<\/a> Cf. Constitution of the Portuguese Republic<\/a>: art.18, c.1.<\/span><\/p>\n<\/div>\n

\n

[48]<\/a> Perplexingly, such a principle has not been employed in previous rulings in order to secure private-sector workers\u2019 equality with public-sector ones in wages and pensions. The same applies to the other EU countries where constitutional courts appealed to this principle.<\/span><\/p>\n<\/div>\n

\n

[49]<\/a> Art.9 d) of the Portuguese constitution (official En. transl.<\/a>) requires the State \u201c[t]o promote the people\u2019s well-being and quality of life and real equality between the Portuguese, as well as the effective implementation of economic, social, cultural and environmental rights\u201d.<\/span><\/p>\n<\/div>\n

\n

[50]<\/a> Cf. European Commission (2014), \u201cEuropean Financial Stabilisation Mechanism (EFSM)<\/a>\u201d.<\/span><\/p>\n<\/div>\n

\n

[51]<\/a> Cf. European Commission (2012), \u201cTreaty establishing the European Stability Mechanism (ESM) signed<\/a>\u201d.<\/span><\/p>\n<\/div>\n

\n

[52]<\/a> Squinzi, G. (2012, 15 June) [president of the Italian industrialists\u2019 syndicate Confindustria<\/i>] as cited in \u201cSpeculation against Italy could destroy euro \u2013 business lobby head<\/a>\u201d, Reuters<\/i>.<\/span><\/p>\n<\/div>\n

\n

[53]<\/a> Free capital trade has also been suspended in Iceland since the emergency act 125\/2008<\/a>.<\/span><\/p>\n<\/div>\n

\n

[54]<\/a> Post-Bretton-Woods meltdowns have engulfed Latin America, Sub-Saharan Africa, Pakistan, South Korea, South-East Asia and post-communist Europe, providing testimony of the chaos that, back in the 1990s, Greek economist and philosopher Cornelius Castoriadis deemed the inevitable outcome of the re-introduction of free capital trade worldwide: only a \u201cplanetary casino\u201d could emerge from \u201cthe absolute freedom of capital movements\u201d. (<\/span>Figures of the Thinkable<\/i><\/a>, p.82) His assessment is echoed in 2012 by Italy\u2019s former finance minister Giulio Tremonti, who condemns today\u2019s \u201cfinancial casino\u201d (<\/span>Uscita di sicurezza<\/i>, Milan: Rizzoli, p.16) and renown Spanish jurist <\/span>Jes\u00fas Ballesteros, who speaks instead of \u201ccasino capitalism\u201d <\/span>(Globalization and Human Rights: Challenges and Answers from a European Perspective<\/i>, Leiden: Springer, pp.6 & 9).<\/span><\/p>\n<\/div>\n

\n

[55]<\/a> E.g. IMF economist Boughton, J.M. (2000), \u201cHistorical perspectives on financial distress: A comment\u201d, Carnegie-Rochester Conference Series on Public Policy<\/i>\u00b853\/2000: 169-75. It is therefore not surprising that leading statesmen may advocate for a return to the 1946-1972 Bretton Woods system of pegged but adjustable exchange rates and mobile yet not volatile steered capital trade (e.g. former UK PM Gordon Brown (2011), \u201cBretton Woods Keynote<\/a>\u201d, Institute for New Economic Thinking<\/i>).<\/span><\/p>\n<\/div>\n

\n

[56]<\/a> Cf. McMurtry (2013), op. cit.<\/i>: pp.176-79, 190-91 and 226-67 explain how the banking sector can yield power within the EU legislative framework, which sets \u201ctechnical\u201d parameters and requirements for its members (cf. also Sch\u00e4fer, H-B. (2012, 1 May), \u201cThe Sovereign Debt Crisis in Europe: Save Banks Not States<\/a>\u201d, SSRN<\/i>). The book\u2019s 1999 first edition, which proved famously prescient on the 2008 financial collapse, is available online<\/a>.<\/span><\/p>\n<\/div>\n

\n

[57]<\/a> Like its Portuguese and Spanish counterparts, the Italian constitution reads (Art.3): \u201cIt is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country.\u201d Equality is much more than a sheer formal principle.<\/span><\/p>\n<\/div>\n

\n

[58]<\/a> It is also interesting to mention case 223\/2012<\/a> on Law 78\/2010 (in Italian; cf. AID: 9 & 579 n19), whereby the constitutional court condemned the pay cuts of the nation\u2019s judges as a threat to the constitutionally sanctioned independence of the judiciary power, a violation of the constitutional principle of equality<\/i> (since the judges were being singled out for pay reductions), noting also how judicial pay, given the sensitive role played by judges within the country\u2019s institutional set-up, does not stem from standard labour relationships subjected to periodic negotiations.<\/span><\/p>\n<\/div>\n

\n

[59]<\/a> Berlin, I. (1969), Four Essays on Liberty<\/i> (Oxford: Oxford University Press): \u201cto offer political rights, or safeguards against intervention by the State, to men who are half-naked, illiterate, underfed and diseased is to mock their condition\u2026 What is freedom to those who cannot make use of it? Without adequate conditions for the use of freedom, what is the value of freedom? First things come first: there are situations in which – to use a saying satirically attributed to the nihilists by Dostoevsky – boots are superior to Pushkin; individual freedom is not everyone’s primary need\u2026 To avoid glaring inequality or widespread misery I am ready to sacrifice some, or all, of my freedom\u2026 I should be guilt-stricken, and rightly so, if I were not.\u201d (p.125).<\/span><\/span><\/p>\n<\/div>\n

\n

[60]<\/a> Cf. \u00c1g\u00fastsson, H.\u00d3. & Johnstone, R.L. (2013), \u201cPractising what they Preach: Did the IMF and Iceland Exercise Good Governance in their Relations 2008-2011?<\/a>\u201d, Nordicum-Mediterraneum<\/i>, 8(1).<\/span><\/p>\n<\/div>\n

\n

[61]<\/a> Cf. Case E-16\/11 [2013] EFTA<\/a>.<\/span><\/span><\/p>\n<\/div>\n

\n

[62]<\/a> Cf. Johnstone, R.L. & \u00c1mundad\u00f3ttir, A. (2011), \u201cDefending Economic, Social and Cultural Rights in Iceland\u2019s Financial Crisis\u201d, The Yearbook of Polar Law<\/i> 3(1): 455-77. <\/span><\/p>\n<\/div>\n

\n

[63]<\/a> Formally, the \u201cTreaty on Stability, Coordination and Governance in the Economic and Monetary Union<\/a>\u201d.<\/span><\/p>\n<\/div>\n

\n

[64]<\/a> All relevant official documents can be found, in English, on the website<\/a> of the European Commission.<\/span><\/p>\n<\/div>\n

\n

[65]<\/a> E.g. The journal.ie<\/i> (2013, 20 January) \u201cIn numbers: How much would we save by abolishing the Seanad?<\/a>\u201d.<\/span><\/p>\n<\/div>\n

\n

[66]<\/a> E.g. The Convention on the Constitution (2014, 23 February), \u201cThe Constitutional Convention Votes in Favour of Reforming Economic, Social & Cultural Rights in the Constitution<\/a>\u201d.<\/span><\/p>\n<\/div>\n

\n

[67]<\/a> The Convention on the Constitution (n.d.a.), \u201cConvention<\/a>\u201d.<\/span><\/p>\n<\/div>\n

\n

[68]<\/a> Cf. Government of the Republic of South Africa <\/span><\/i>vs Grootboom<\/i> 2001 (1) SA 46 (CC); Minister of Health v Treatment Action Campaign (No 2)<\/i> 2002 (5) SA 721 (CC); and Khosa v Minister of Social Development<\/i> 2004 (6) SA 505 (CC).<\/span><\/span><\/p>\n<\/div>\n

\n

[69]<\/a> E.g. Hall v Minister for Finance<\/i><\/a>, where standing was denied; and Pringle v Government of Ireland<\/i><\/a>, which was rejected on the merits.<\/span><\/p>\n<\/div>\n

\n

[70]<\/a> All relevant official documents can be found on the website<\/a> of the European Commission.<\/span><\/p>\n<\/div>\n

\n

[71]<\/a> An unofficial 2011 English translation by P. Porta Gracia is available on the website<\/a> of the Spanish House of Deputies. For the longer and more detailed new article 135 of the Spanish constitution, cf. Abad, J.M & Galante, J.H. (2011), \u201cSpanish Constitutional Reform. What is seen and not seen<\/a>\u201d\u00b8CEPS Policy Brief. Thinking ahead for Europe<\/i>, 253\/Sept. 2011. <\/span><\/p>\n<\/div>\n

\n

[72]<\/a> Like the Portuguese one, the Spanish Constitution (Art.9 c.2; official En. transl.<\/a>) reads too: \u201cIt is incumbent upon the public authorities to promote conditions which ensure that the freedom and equality of individuals and of the groups to which they belong may be real and effective, to remove the obstacles which prevent or hinder their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life.\u201d<\/span><\/p>\n<\/div>\n

\n

[73]<\/a> In comparison, Gu\u00f0mundur Hei\u00f0ar Fr\u00edmansson argues that it is precisely because of the lack of large-scale consensus that Iceland\u2019s post-crisis constitutional reforms did not bear fruit; cf. his 2015 book review<\/a> of J\u00f3n \u00d3lafsson (ed.; 2014), L\u00fd\u00f0r\u00e6\u00f0istilraunir. \u00cdsland \u00ed hruni og endurreisn<\/i> [Democratic experiments. Iceland in collapse and renaissance], Reykjav\u00edk: H\u00e1sk\u00f3la\u00fatg\u00e1fan\/University of Iceland Press.<\/span><\/p>\n<\/div>\n

\n

[74]<\/a> Cf. Threlfall, M. (ed.; 2000), Consensus Politics in Spain: Insider Perspectives<\/i> (Bristol: Intellect).<\/span><\/p>\n<\/div>\n

\n

[75]<\/a> All relevant official document are available, in English, on the website<\/a> of the European Commission.<\/span><\/p>\n<\/div>\n

\n

[76]<\/a> Cf. Rasnaca, Z. (2014) \u201cConstitutional Change through Euro Crisis Law: \u2018Latvia\u2019<\/a>\u201d.<\/span><\/p>\n<\/div>\n

\n

[77]<\/a> Cf. also an unofficial English translation available on the website<\/a> of the International Network for Economic, Social and Cultural Rights.<\/span><\/p>\n<\/div>\n

\n

[78]<\/a> All relevant official documents are available, in English, on the website<\/a> of the European Commission.<\/span><\/p>\n<\/div>\n

\n

[79]<\/a> Cf. Precupetu I. & M. (2013), \u201cGrowing Inequalities and their Impacts in Romania<\/a>\u201d, Gini Growing Inequalities\u2019 Impacts Country Report.<\/span><\/p>\n<\/div>\n

\n

[80]<\/a> Cf. also the original ruling, in German, Hartz IV BVerfGE 125<\/a>, 175 of 9 February 2010.<\/span><\/p>\n<\/div>\n

\n

[81]<\/a> E.g. Iceland\u2019s Special Investigation Commission<\/a>, 2008-10.<\/span><\/p>\n<\/div>\n

\n

[82]<\/a> E.g. Tremonti, op. cit.<\/i><\/span><\/p>\n<\/div>\n

\n

[83]<\/a> Cf. \u00c1mundad\u00f3ttir, A. & Johnstone, R.L. (2011), Mannr\u00e9ttindi \u00ed \u00ferengingum. Efnahagsleg og f\u00e9lagsleg r\u00e9ttindi \u00ed kreppunni<\/i><\/a> <\/i>[Human Rights in Stringency. Economic and Social Rights in the Crisis], Akureyri: H\u00e1sk\u00f3linn \u00e1 Akureyri.<\/span><\/p>\n<\/div>\n

\n

[84]<\/a> All cited constitutionalists writing in AID concur on the notion that Europe\u2019s constitutional judges have stressed well-established civil and political rights such as equality over socio-economic ones to buttress most firmly their rulings.<\/span><\/p>\n<\/div>\n

\n

[85]<\/a> Cf. Baruchello, G. (2012) \u201cCruelty and Austerity. Philip Hallie\u2019s Categories of Ethical Thought and Today\u2019s Greek Tragedy<\/a>\u201d, Nordicum-Mediterraneum<\/i>, 8(3).<\/span><\/p>\n<\/div>\n

\n

[86]<\/a> Francis (2013), Evangelii Gaudium<\/i><\/a>, pars. 55 & 276; par. 56 concludes: \u201cThe thirst for power and possessions knows no limits. In this system, which tends to devour everything which stands in the way of increased profits, whatever is fragile, like the environment, is defenseless before the interests of a deified market, which become the only rule.\u201d <\/span><\/p>\n<\/div>\n

\n

[87]<\/a> Kasimatis, G. (2010), \u201cThe Loan Agreement between the Hellenic Republic, the European Union and the International Monetary Fund<\/a>\u201d, research paper prepared for Athens Bar Association, English translation by S.G. Vryna.<\/span><\/p>\n<\/div>\n

\n

[88]<\/a> As cited in \u201cHans Tietmeyer, president de la Bundesbank<\/a>\u201d, L\u2019humanit\u00e9<\/i>, 30 January 1997.<\/span><\/p>\n<\/div>\n

\n

[89]<\/a> Galeano, E. (1998), Upside Down: A Primer for the Looking-glass World<\/i>, New York: Picador, pp.151-52.<\/span><\/p>\n<\/div>\n

\n

[90]<\/a> Tremonti, op. cit<\/i>., pp.14 & 120.<\/span><\/p>\n<\/div>\n

\n

[91]<\/a> Unlike the crisis-born fascist governments of 20th<\/sup>-century Europe, transnational finance can be crueller<\/i> inasmuch as it does not care for obedient nationals and select race, whose livelihoods are thus imperilled rather than protected.<\/span><\/p>\n<\/div>\n

\n

[92]<\/a> All adjudications are available on the website<\/a> of the ECHR.<\/span><\/p>\n<\/div>\n

\n

[93]<\/a> \u201cEventually\u201d is emphasised: it took time before constitutional courts intervened to condemn austerity laws and policies. In Italy, it happened when these could reduce the judges\u2019 income and the income of better-off retired citizens.<\/span><\/p>\n<\/div>\n

\n

[94]<\/a> In an abstract philosophical debate, we could conceive of anarchists, libertarians, objectivists, Stalinists or National-socialists arguing that no such human rights and constitutional principles ought to exist. Yet, in concrete and civilised legal or political debates, at least as Europe is concerned, these rights do exist and must be respected, protected and fulfilled. The day we should find ourselves outside the human rights treaties signed and ratified by our States, and the previous \u201csocialist\u201d constitutions criticised by J.P. Morgan\u2019s specialists superseded by new ones negating them, then such intellectual stances may be considered and <\/i>the relevant human rights thoroughly denied. More often than not, if we look at human history, such rights have been denied; but that happened in previous stages of human civilization, including the fascist one. As for whether the mounting financial fascism denounced by Tremonti will emerge victorious, that is likely to be today\u2019s challenge for anyone who cares about human rights.<\/span><\/p>\n<\/div>\n

\n

[95]<\/a> [The welfare of the people must be the supreme law] Cicero, M.T. (ca. 40 BCE), De Legibus<\/a>, l. III, par.8.<\/span><\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

In this paper, we aim to survey representative constitutional amendments in the European Union\u2019s area, whether attempted or accomplished, as well as significant adjudications by constitutional bodies, since the outset of the ongoing international economic crisis, 2008-2015. We assess these legal phenomena in light of human rights jurisprudence. Pivotal reference in our work is the recently released 7<\/span>th<\/sup>\u00a0volume of the\u00a0<\/span>Annuaire international des droits de l\u2019homme<\/i>, edited by G. Katrougalos, M. Figueiredo and P. Pararas under the aegis of the International Association of Constitutional Law.\u00a0Have <\/span>European constitutions continued to function\u00a0<\/span>qua<\/i>\u00a0civil commons in the crisis years? That, at the deepest level of value scrutiny, is the question that our joint survey and analysis aim to answer.<\/span><\/span><\/p>\n","protected":false},"author":587,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[82],"tags":[338,196,968,244,969,606,282,312,554,199,970,246,152,724],"coauthors":[1777],"class_list":["post-394","post","type-post","status-publish","format-standard","hentry","category-conference-paper-10-3","tag-civil-commons","tag-constitution","tag-constitutional-court","tag-constitutional-law","tag-crisis-greece","tag-eu","tag-human-rights","tag-imf","tag-ireland","tag-italy","tag-latvia","tag-portugal","tag-romania","tag-spain"],"_links":{"self":[{"href":"https:\/\/nome.unak.is\/wordpress\/wp-json\/wp\/v2\/posts\/394","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nome.unak.is\/wordpress\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nome.unak.is\/wordpress\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nome.unak.is\/wordpress\/wp-json\/wp\/v2\/users\/587"}],"replies":[{"embeddable":true,"href":"https:\/\/nome.unak.is\/wordpress\/wp-json\/wp\/v2\/comments?post=394"}],"version-history":[{"count":8,"href":"https:\/\/nome.unak.is\/wordpress\/wp-json\/wp\/v2\/posts\/394\/revisions"}],"predecessor-version":[{"id":2759,"href":"https:\/\/nome.unak.is\/wordpress\/wp-json\/wp\/v2\/posts\/394\/revisions\/2759"}],"wp:attachment":[{"href":"https:\/\/nome.unak.is\/wordpress\/wp-json\/wp\/v2\/media?parent=394"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nome.unak.is\/wordpress\/wp-json\/wp\/v2\/categories?post=394"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nome.unak.is\/wordpress\/wp-json\/wp\/v2\/tags?post=394"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/nome.unak.is\/wordpress\/wp-json\/wp\/v2\/coauthors?post=394"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}