Public and Private enforcement of Social Rights

• Author: Roberto Cippitani and Valentina Colcelli
• Pages: 82-104

 Public and Private Enforcement of Social Rights

Introduction

The aim of this Chapter is to better understand how social rights may be

protected by the courts, particularly with the help of the instruments

made available by private law and how Ordinary Courts – due to the control

of supranational Courts - have jurisdiction over the exercising of private law

realised by public power specically in the eld of social rights.

To achieve this goal, Section n. 1 will briey reiterate how the jurisdiction

on the protection of fundamental rights has become the rst priority of the

European states and how social rights are also recognised by the transnational

legal sources, such as the European Union law.

Section n. 2 will explain the jurisdiction of Administrative Courts in the

Italian legal system (Constitution, Article 103), which is grounded on the

nature of the individual position of the person under the action of the public

administration —“legitimate interests”— and why this kind of approach ac-

tually creates some of the problems regarding the specic eld of social rights.

Following the above evaluation, Section n. 3 will analyse how social services

t perfectly into the arena of individual rights. Section 4 shows that in the Ital

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ian legal system, the protection of social rights via private law is not excluded

just because they are provided for by public authority, acting either in forms

of public or private law: denying nancial aid by administrative order or by

forms of private law.

According to the nature of social services as private law and human rights,

Section n. 5 will explain how control by the Ordinary Courts, exceeding any

possible limitation of the social rights through discretionary activities, puts the

public power “private law and human rights” up to the possibility of judicial

review by the Strasbourg Courts on administration activities as to whether or

not they are acting in forms of public or private law.

Section n. 6 references the European Court of Human Rights (ECtHR)

judgment on the Mennitto v Italy (2000) case, supporting the application of

private law regarding the specic eld of social rights.

Section n. 7 also identies the articles of the Civil Code that can be applied

to contracts used by the public administration to realise the so-called social

rights and possible limitations to their application. e protection of such

rights via private law is clearly not excluded just because they are provided for

by public authorities. It is already common that private law instruments are



Roberto Cippitani and Valentina Colcelli

now constantly used by the public administration for their implementation.

Indeed, for social rights to be positively and concretely fullled, the public

administration uses instruments that are available from both administrative

law and from private law. e satisfaction of social rights is through long-last-

ing relationships, and those that are based on typological schemes like the

work contract, mortgage, renting, loan administration, insurance, grants, etc.

Section n. 8 concludes.

1 Social rights within national and transnational

constitutionalism

e constitutions adopted in the second half of the twentieth century are

focused on pivotal legal concepts such as the fundamental rights of natural

persons and the ‘rule of law’ (Sepúlveda Iguíniz, 2013, p. 239). e protection

of fundamental rights has become the rst priority of the state (Pérez Luño,

1991, p. 19) and the new justication of political power (Rawls, 1980, pp.

4-7). Such protection is also granted at the international level through the es-

tablishment of a ‘global constitutionalism’ (Espinoza de los Monteros Sánchez,

2010), which has inuenced the development of the national constitutions

(Pernice, 1999, p. 703; Cardone, 2011). In particular, this multilevel consti-

tutionalism is focused on ‘social rights’.

e constitutions attribute the ‘social’ character to the state (see Article 1 of

the French Constitution of 1958; Article 20, rst paragraph, of the German

Grundgesetz; Article 1, third paragraph, of the Romanian Constitution; and

Article 2 of the Constitution of Slovenia, which is based on the principle of the

welfare state) (Cippitani, 2013; Cippitani, 2010). e constitutional charters

have recognised social rights (Mazziotti, 1964), especially the right to receive

social services,1 which characterises the welfare state (Marshall, 1998).

1 The Constitutions require specic interventions to satisfy interests, such as education and

training (see, for example, Article 34 of the talian Constitution; Article 145 of the Weimar

Constitution; Article 24 of the Spanish Constitution; Article 23 of the Dutch Constitution);

housing (see, for example, Article 22, paragraph 2, of the Dutch Constitution, which refers

to the duty of the State to ensure that households are sucient; Article 23 of the Belgian

Constitution; Article 21, paragraph 4, of the Greek Constitution); and house purchases (Ar-

ticle 19, paragraph 4, of the Finnish Constitution); the sustainable use of the territory (see

Article 65(4) and (5) of the Portuguese Constitution); the sustainable exploitation of energy

(Article 81 of the Portuguese Constitution); consumer protection (Article 51 of the Spanish

Constitution; Article 46(5) of the Lithuanian Constitution); Article 60 of the Constitution of