TC - Ruling No. 446/2024
In Ruling No. 446/2024, the 3rd Division of the Constitutional Court, in concrete review, upheld the constitutionality of the provision that excludes granting financial support from the Fund for the Maintenance Allowance Due to Minors (FGADM) to minors belonging to households with a gross per capita income exceeding the value of the Social Support Index (IAS) but equal to or less than the minimum guaranteed monthly wage (RMMG).
The appeal challenged the constitutionality of this provision, which arises from the combined interpretation of Article 1(1) of Law No. 75/98, November 19, Article 3(1)(b) and (2) of Decree-Law No. 164/99, May 13, and Article 5 of Decree-Law No. 70/2010, June 16, alleging violations of Articles 1, 2, 13, and 69(1) and (2) of the Portuguese Constitution.
The contested rule denies FGADM benefits to minors whose household gross per capita income exceeds the IAS (€509.26) but remains equal to or below the RMMG (€820.00).
Regarding alleged violations of human dignity, access to social rights, and child protection (Articles 1, 2, and 69 of the Constitution) the Court noted that the provision did not abolish minors’ maintenance guarantees. Replacing the RMMG with the IAS as the reference parameter for determining eligibility might reduce the number of children and youth eligible for the benefit. However, the provision also increased the maximum monthly amount available to each entitled child by replacing the previous cap of €408.00 (4 UC) with the IAS value.
On the appropriateness of the IAS as a reference, the Court dismissed claims that it represents a benchmark for economic indigence, emphasizing its relevance.
The FGADM’s role was reiterated as complementary and not comparable to that of the legally obligated provider of child maintenance.
The Court highlighted the state's autonomy to set rules for social rights and human dignity.
The Court also noted that the challenged legislation was part of a broader fiscal strategy under the Economic and Financial Assistance Program (PAEF), agreed between Portugal, the EU, and the IMF during 2011–2014 (the so-called "Troika program"). The socio-economic context of its approval was deemed relevant.
While acknowledging the state's constitutional obligation to provide social benefits to ensure minimum living standards and the integral development of minors, the Constitution grants the democratically elected legislature-wide discretion in defining allocation models, regimes, and tools.
On the alleged discrimination between single-parent and two-parent families, the Court found no evidence of inequality in treatment, as the provision applies regardless of the caregiver’s gender or the defaulter’s gender.
The Court, however, did not address potential indirect gender inequalities arising from the reality that mothers are often burdened with supporting minor children.
Finally, on concerns of social regression due to changing FGADM parameters, the Court rejected claims of a retrogression prohibition in such cases, noting that the legislature's discretionary scope is tied to the principle of democratic alternation, which inherently allows for revisiting policy decisions over time.
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Full text of the judgment available here.
