European Roma Rights Centre (ERRC) v. Bulgaria

The European Roma Rights Centre (ERRC) brought a complaint alleging that the 2006 and 2008 amendments to Bulgaria’s Social Assistance Act of 1998 (‘the Act’) violated Article 13(1) of the RESC, taken alone or in conjunction with the non-discrimination provisions of Article E. Prior to these amendments, entitlement to social assistance benefits under the Act was conditioned solely on the needs of beneficiaries and was unlimited in duration. These amendments established a maximum time period for which most unemployed persons of working age could obtain social assistance benefits. Beneficiaries could have their benefits restored, but only 12 months after the initial expiration of benefits. Certain categories of persons are not subject to the limitation period.

The ERRC alleged that imposing time limits on the receipt of social assistance deprives vulnerable people access to important forms of support, emphasizing that cutting benefits without considering individual circumstances or personal conduct could arbitrarily deprive persons of their means of subsistence. The ERRC further claimed that the amendments would unjustly impact the Roma ethnic group, who were overrepresented among the social assistance beneficiaries, and women, who could face pressure to leave the workplace to raise their children since women who were raising a child up to three years of age were exempt from the time limitations. Further, the ERRC claimed that there were no other forms of social welfare available in Bulgaria to compensate for the loss of social assistance The ERRC cited statistics demonstrating that there were not enough job vacancies to employ all of the unemployed persons looking for work. For example, one study found that there was on average eight unemployed persons competing for each job vacancy. The ERRC also alleged that persons losing these benefits would also lose other entitlements which are tied to being a recipient of social assistance, such as health insurance.

The Bulgarian Government argued that these amendments only applied to unemployed persons of working age who were fit to work and emphasized that the goals of the amendments were to encourage reintegration into the workforce and satisfy a pressing need to eliminate long-term dependency on social assistance. The Government stated that the amendments were not discriminatory toward the Roma and did not have a disparate impact on women because the exemption applied equally to parents, regardless of gender; that the assertion that persons losing social assistance would lose other entitlements was incorrect; and, further, that it had undertaken a number of organisational and administrative measures to minimize the negative impact of the amendments.

[Adapted from INTERIGHTS summary, with permission]

The Committee held that:

(1) individuals had a fundamental right of access to sufficient resources and social assistance to enable them to live in a manner compatible with human dignity;

(2) Article 13(1) required states to guarantee minimum income and social assistance to persons without adequate resources;

(3) states may not impose time-limits on social assistance if the persons affected continue to meet the basic conditions for eligibility under Article 13(1);

(4) social assistance benefits could only be reduced or suspended if they did not deprive persons in need of their means of subsistence;

(5) the 2006 and 2008 amendments to the Act imposing time limits on the right of access to social assistance violated Article 13(1);

(6) despite measures taken by Bulgaria to improve education and training and encourage workforce reintegration, as a result of the demonstrated difficulty in finding jobs, the loss of benefits would leave many without the means to meet the necessary costs of living in a manner consistent with human dignity;

(7) there was insufficient evidence to establish that alternative forms of social assistance existed that would ensure that those in need would receive enough social assistance to satisfy Article 13(1);

(8) with regard to the claim that the loss of social assistance would also result in the loss of health insurance, the ECSR refered to its assessment of the legal arguments in the complaint European Roma Rights Centre v Bulgaria, No. 46/2007, decision on the merits of 10 December 2008, paras. 43 and 44;

(9) there was insufficient evidence to determine if the loss of social assistance would also result in the loss of rights (other than health insurance) that were linked to the right to receive social assistance; and

(10) while the amendments were likely to have a considerable impact upon some of the most disadvantaged groups in Bulgaria and, in particular upon the Roma, since the amendments at issue violated the rights of all persons affected by a discontinuation of social assistance, the ECSR did not consider it necessary to examine whether Article E, read in conjunction with Article 13(1), had also been breached.

Three committee members dissented, and focusing on discriminatory purpose as the key element, argued that as the effect of the legislation would be to place the Roma peoples at a disadvantage there was also a violation of Article E of  the revised Charter.

[Adapted from INTERIGHTS summary, with permission]

"38. The Committee recalls that under Article 13§1 adequate benefits must be payable to “any person” who is without adequate resources and in need. The text of Article 13§1 clearly establishes that this right to social assistance takes the form of an individual right of access to social assistance in circumstances where a basic condition of eligibility is satisfied, which occurs when no other means of reaching a minimum income level consistent with human dignity are available to that person.

39. States may establish a link between access to this right and a willingness to seek employment or to receive vocational training. The Committee recalls in this respect its statement of interpretation on Article 13§1 in Conclusions XIV-1 that linking social assistance with willingness to look for work or undergo vocational training is in conformity with the Charter, provided that these conditions are reasonable and in keeping with the aim pursued, namely to find a lasting solution to the person’s problems in accessing the labour market. However, access cannot be made subject to time-limits, if the persons affected continue to meet the basic condition for eligibility established by
Article 13§1. Reducing or suspending social assistance benefits may only be in conformity with the Charter if they do not deprive persons in need of their means of subsistence."

"45. The Committee considers that the legislative measures in question are likely to have a considerable impact upon some of the most disadvantaged groups in Bulgaria and, in particular, upon the Roma – in light of the special difficulties that Roma face in gaining access to the labour market and the statistical evidence that exists of the extent to which Roma families are dependant upon social assistance. It also considers that a denial of the right to social assistance set out in Article 13§1 will inevitably constitute a denial of the fundamental right of persons belonging to socially disadvantaged groups to equality of respect and esteem. As a result, the allegations of a breach of Article E of the Revised Charter read in conjunction with Article 13§1 can be regarded as subsumed in the circumstances of this complaint within the wider question of whether Article13§1 has been breached by the impugned amendments to the Social Assistance Act."