DEN
DEN-2012-3-001
a)  Denmark / b)  Supreme Court / c) / d)  15-02-2012 / e)  159/2009 / f) / g) / h)  Ugeskrift for Retsvæsen 2012, 1761; CODICES (Danish).
 
Keywords of the systematic thesaurus:
 
 
Fundamental Rights - General questions - Entitlement to rights - Foreigners.
Fundamental Rights - General questions - Limits and restrictions.
Fundamental Rights - Equality - Criteria of distinction - Citizenship or nationality.
Fundamental Rights - Economic, social and cultural rights - Right to unemployment benefits.
 
Keywords of the alphabetical index:
 
Social assistance / Unemployment / Subsistence, minimum level / Refugee / Discrimination.
 
Headnotes:
 
Unemployment benefits maybe reduced for a refugee without violating Article 75.2 of the Constitution, which obliges the State to help those who cannot support themselves, Article 14 ECHR or other international conventions.
 
Summary:
 
I. In April 2003, the applicant was granted permission to reside in Denmark as a refugee.
 
In June 2003, the local Municipality decided that the applicant was entitled to Start Help benefits, which he received until November 2007. As of 1 December 2007, the applicant was granted early retirement pension.
 
Following an amendment to the Active Social Policy Act in 2002, regular unemployment benefits could only be granted to persons who, within the last eight years, had spent at least seven years in Denmark. Persons who did not meet this requirement received Start Help (reduced unemployment benefits) instead.
 
The applicant brought a case against the local Municipality and the Ministry of Employment before the Danish courts. The applicant claimed that the granting of Start Help benefits T instead of regular unemployment benefits a constitute a violation of Article 75.2 of the Constitution, which obliges the State to help those who cannot support themselves. The applicant continued that it also violated Article 14 ECHR on non-discrimination in conjunction with Article 8 ECHR and Article 1 Protocol 1 ECHR and of certain other international conventions.
 
Before the Supreme Court, the applicant argued that the granting of Start Help benefits instead of regular unemployment benefits constituted a violation of Article 75.2 of the Constitution. Furthermore, the applicant argued that social benefits, such as unemployment benefits, are covered by Article 14 ECHR in conjunction with Article 8 ECHR and Article 1 Protocol 1 ECHR. Since the requirement of having spent at least seven of the past eight years in Denmark affects relatively more foreigners than Danish nationals, the applicant argued that the use of Start Help instead of regular unemployment benefits in his case constituted indirect discrimination.
 
The defendants argued that Article 75.2 of the Constitution, while it entitles citizens to receive help, does not determine the level of help provided. Therefore, the help provided by the authorities could, if well reasoned, be reduced to the minimum level of subsistence. The Constitution, it was argued, should not be interpreted to conform to European Convention on Human Rights.
 
Furthermore, the defendants argued that the requirements to obtain regular unemployment benefits conform with Article 14 ECHR since they were founded on the principle of earning that did not discriminate on the basis of nationality.
 
II. The Supreme Court found that Article 75.2 of the Constitution entails an obligation for the State to ensure a minimum level of existence for persons covered by it. However, the Court found that the size of the Start Help and other benefits that the applicant and his spouse received were sufficient to satisfy Article 75.2 of the Constitution.
 
In relation to the European Convention on Human Rights, the Supreme Court found that the situation of the applicant was covered by Article 14 ECHR read in conjunction with Article 1 Protocol 1 ECHR, which, depending on the circumstances, also covers indirect discrimination.
 
Based on the interpretative notes to the 2002 amendment to the Active Social Policy Act, the Court stated that one of the purposes of Start Help was to encourage people to enter the labour market and fewer people to live on social welfare payments. In relation to foreign nationals, the purpose of the rules was also to strengthen their integration into Danish society. Furthermore, the Court noted that the applicant was eligible for and, in fact, received other public benefits such as housing benefit and that the rules on Start Help did not have consequences that could be characterised as disproportionate.
 
Finally, the Court noted that the European Convention on Human Rights leaves the States wide discretion to determine matters of social and economic policy.
 
For these reasons, the Supreme Court held that Start Help did not in the applicant's case constitute indirect discrimination in contravention to Article 14 ECHR in conjunction with Article 1 Protocol 1 ECHR. None of the other international conventions cited by the applicant could lead to a different result.
 
Supplementary information:
 
Following an amendment to the Active Social Policy Act in December 2011, which entered into force on 1 January 2012, Start Help has been abolished. As such, the regular unemployment benefits may be obtained even if the person in question has not resided in Denmark for a specified period of time.
 
Languages:
 
Danish.