Vice-President of the Court Marián Trenčan at the International Conference of the Supreme Court of Ukraine
In his expert contribution on the ‘Core of European Union Social Rights and their enforcement’, he noted at the outset that these rights require state intervention rather than state abstention (as opposed to the first generation of fundamental rights and freedoms). “Compared to the first generation of human rights, the specific form and conditions for the application of second-generation rights are subject to a much wider discretion of the legislator, depending on the economic situation of the state, or the current economic, social or cultural policy,” said Marián Trenčan.
The Vice-President of the Court told the participants present at the conference that the above is fundamentally reflected in the content and scope of these rights. “The statutory legislation establishes the content and scope of the social rights of the individual and also guarantees its exercise. The European Court of Human Rights, commenting on this, said that it ‘considers it natural that the margin of appreciation left to the legislator in the implementation of social and economic policy should be sufficiently wide, therefore the Court will respect the legislator’s conception of what is in the public interest, unless its judgement is manifestly lacking in a reasonable basis’.”
In concluding his address, the Vice-President of the Court also addressed the issue of the enforceability of social rights. in that context, he emphasized that it is the responsibility of the judiciary to uphold the social rights obligations of citizens. The protection of fundamental rights (and freedoms) and legally protected interests is primarily entrusted to the competent authorities in the framework of administrative proceedings, while subsequent judicial protection is exercised in the framework of the administrative justice system, mostly only after the exhaustion of remedies in administrative proceedings.
He added that, regarding the enforceability of social rights, there are also opinions that social rights are unenforceable and are only a kind of guide for the legislator, who determines their specific content. “However, summarising the foregoing, it may be reiterated in conclusion that the margin of appreciation granted to the legislator in enacting laws regulating social rights cannot be understood in absolute terms and the legislator must respect the essential core of social rights. Nor can it, therefore, adopt legislation which renders social rights merely illusory or interferes with their essence.”
The international conference, which was organized by the Ukrainian Administrative Court of Cassation together with the Council of Europe and the German Foundation for International Legal Cooperation, also featured expert presentations by the President of the Supreme Administrative Court of the Czech Republic, Karel Šimka, several judges and academics from various European countries, as well as representatives of European institutions.