La ’solitudine’ delle corti costituzionali? Sindacato sulle misure di austerity e protezione dei diritti sociali tra giudici nazionali e Corte EDU

This essay analyses the jurisdictional protection of social rights in Europe. The aim is to investigate the possibility to speak of a Constitutional Courts’ “loneliness”, in facing the so called austerity measures, originally implemented by the States on the basis of Memorandum of Understanding (MoU) signed with the Troika. Therefore the case law of the Court of Justice of the European Union, of the European Court of Human Rights and of the Portuguese Constitutional Tribunal, with some references to other Constitutional Courts’ decisions, on that topic will be examined. On the one hand, in fact, the Court of Justice of the European Union demonstrated a high degree of self-restraint interpreting the art. 51 of the EU Charter of Fundamental Rights. The European Court of Human Rights, on the other hand, seems unequipped to cope with social rights issues, according to the protection guaranteed by the art. 1, Protocol No. 1. In the analysed ECHR’s case law, it will be shown how the Court tries to demonstrate a systemic approach. However, the European Court continues to apply a high threshold in the use of the margin of appreciation doctrine and, in the end, it admits that the national courts are in a better position to decide on that topic. In contrast, the Constitutional Courts appear highly aware of their role and are strongly committed to finding a right balance between the constitutional protection of social rights and sustainable financial costs. In doing so, the Constitutional Courts seem to consider themselves the right place to reviewing issues so economically relevant. The risk is that this “loneliness” may trigger a process that can threaten their legitimacy.