Sufficiency of Social Security Benefits: In Search of Legal Criteria

Abstract

The principle of sufficiency of benefits to guarantee the right to Social Security or social protection (also referred to as principle of adequacy of benefits) does not only derive from the CESCR’s General Comment 19 or ILO instruments, but can also be found to be explicitly recognized as a constitutional principle in some countries, like, for example, Spain or Chile. However, this principle is not generally given a more precise legal content, among other reasons because of the general reserved stance of Courts in the concrete definition of social rights. Starting with the legal reasoning of the “Hartz IV” jurisprudence of the German Constitutional Court (creating a claimable right to a benefit guaranteeing a subsistence minimum in line with human dignity), this papers analyses international instruments related to Social Security to assess whether more substantial legal definitions of the principle of sufficiency could be found, in line with the reasoning of the German Constitutional Court. It applies briefly those elements to minimum benefits in the Spanish and Chilean context, as those two countries recognize a constitutional principle of sufficiency of Social Security benefits. It also explores application of the principle of sufficiency further than to minimum benefits. It seems however that existing legal elements to that purpose are more tenuous. However, to the extent that it would take into account the idea of proportionality between contributions and benefits, it poses the problems of its integration of issues related to irregular careers and their gender impact.