BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

welfare and social security assets is unlimited and even if part of the benefits are borne by the beneficiary itself, in the case of the social security system, the state’s capacity to maintain these social achievements may be compromised, especially in times of crisis economic development. For this reason, social security is a frequent target of retrogressive postures. The question that emerges from the outlined scenario, when a government bases the reduction or elimination of social legal benefits on budget constraints arising from economic crisis, concerns the effectiveness of social rights. To what extent would social rights be said to be safeguarded from the governmental manus? In order to ensure the effects of social rights and to promote their progression, in accordance with the International Covenants highlighted in this work, the principle of prohibition of social retrogression against regressive measures is enforceable. This principle the primacy of the effectiveness of constitutional norms and prevents government actors from simply failing to fulfill the Federal Constitution’s aspirations on the grounds that there is no budgetary availability, like it happende to Brazil in these last four days with the corruption crisis, since 2015, when it was discovered a very long problem of state budget accountability, started one decade ago, with huge system created inside several areas and departments of the government, destinated to promote deviation of money and other public resources, in some particular or ideologic parties favour. The safeguarding of social rights by the principle of prohibition of retrocession does not preclude certain social goals from being revised. Indeed, in Sarlet’s 43 lesson, the principle turns to the protection of the essential core of social rights, not forgetting the maxim of effectiveness of social rights. Thus, the idea that the existence of limits to the limits of fundamental rights would represent an absolute prohibition of any change in the content of social rights would be disregarded. Social, economic and state dynamism requires a certain margin of freedom for the legislator, especially in the area of social security. According to the prohibition of retrocession and the canon of progressivity, the principle necessarily reflects the dignity of the human person and the existential minimum, in view of the primacy of legal security and the protection of trust. The prohibition of retrogression therefore reveals an important mechanism for the effectiveness of social rights, while safeguarding the essential core of rights and, by way of reflection, the dignity of the human person, based on legal certainty and the protection of trust. It is, in fact, a constitutional instrument that restricts the legislator’s ability to limit the scope of protection of social achievements, which is particularly relevant at times of state economic crisis.

43 SARLET, Proibição de retrocesso, 2018, and A eficácia dos direitos fundamentais, 2015.

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