Professors consider the formation of the new pension law unconstitutional. Is that justified?

The letter

According to the Explanatory Memorandum of the Act future of pensions, the amendment of the Appa is merely a ‘technical’ adjustment that does not make any substantive changes to the entitlements to financial provisions for Members of Parliament. Based on the Explanatory Memorandum, Article 63 of the Constitution would not be applicable, thus allowing the Wtp to be adopted correctly (without a two-thirds majority). “Considering this non-applicability of the constitutional provision has proven to be crucial for the Act future of pensions, as the proposal did not reach the two-thirds majority threshold in both the House of Representatives and the Senate,” argue Efthymiou and Scherpenisse.”

The letter’s authors made their view known before the vote in the Senate and concluded that Article 63 of the Constitution had been wrongly left out of consideration. The authors’ main criticism concerns the distinction between ‘technical’ and ‘non-technical’ provisions, while Article 63 of the Constitution does not provide any basis for such differentiation. Efthymiou and Scherpenisse follow this reasoning: “We can’t help but agree that the Constitution indeed does not provide for such categorization. However, the interpretation of this article lies with the legislator.” Additionally, the professors argue that the amendment, contrary to the government’s view, does indeed lead to a ‘change’ in the pension scheme for Members of Parliament. There would be a change because the new system breaks with the notion that the rules for the pensions of Members of Parliament should primarily follow those for civil servants.

Nuance

“That last point is, in our opinion, less robust,” say the Erasmus School of Law researchers. “The authors seem to overlook too easily the fact that precisely those provisions serve to ‘prevent the changes made by the Act future of pensions from applying’ to the Appa. The rules for civil servants and Members of Parliament will diverge with this amendment. Still, it is important to mention that this divergence is caused by the fact that the rules for Members of Parliament will remain the same.”

The absence of substantive changes does not seem to be in question. The question then is whether Article 63 of the Constitution requires that every change to the Appa, regardless of its nature, must be adopted by the whole of Parliament with at least a two-thirds majority of the votes cast.

In parliamentary history, we distinguish between regulations that modify financial provisions and those that do not (technical regulations). In the past, ministers, and the House of Representatives and the Senate, just like the Minister of Social Affairs and Employment now, have regularly taken the position that not every change to the Appa needs to be adopted by at least a two-thirds majority. The Advisory Division of the Council of State also takes this view. It does so by remaining silent on the remarks in the Explanatory Memorandum regarding the relevant amendments for the pensions of political officeholders. “Thus, parliamentary history shows that it is not unusual to make a distinction between changes to the Appa that do and do not modify financial provisions for parliamentarians. The first category requires a qualified majority, while a simple majority suffices for the second category. The position of the three professors thus clashes with parliamentary history,” argue Efthymiou and Scherpenisse.

Finally, reference can be made to the bundle T&C Grondwet en Statuut, commentary on Article 63 of the Constitution. The following is noted: “The qualified majority requirement applies to bills concerning financial provisions. It is plausible that this requirement applies to the granting and the withdrawal or modification of such provisions.” Since there is no granting, withdrawal, or modification in this case, it is reasonable to infer from the remark that the bill does not require the application of the qualified majority requirement. Thus, the position of the three professors may also clash with the position expressed in T&C Grondwet en Statuut.

“In the end, our main point is this,” Efthymiou and Scherpenisse conclude, “strong arguments exist against the professors’ letter. It is customary to distinguish between substantive and non-substantive amendments to the pension provisions of Members of Parliament. And although this distinction does not directly follow from Article 63 of the Constitution, it is legitimate that the legislator has made such a distinction. As long as judges, according to Article 120 of the Constitution, are not allowed to review such laws against the Constitution, the final word on the interpretation of Article 63 of the Constitution lies with the legislator.”