In The Matter Of The Application For Revocation Of Section 15 Of The Act On Pension Insurance

Original Language Title: ve věci návrhu na zrušení § 15 zákona o důchodovém pojištění

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=71010&nr=135~2F2010~20Sb.&ft=txt

135/2010 Sb.



FIND



The Constitutional Court



On behalf of the Republic of



The Constitutional Court decided on 23 December 2005. March 2010 in plenary in the composition of Stanislav

Package, Francis Skinner, Vlasta Formankova, Turgut Güttler, Pavel

Holländer, Ivana Janů, Vladimir Crust, Dagmar Lastovecká (judge

the Rapporteur), Jiri Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský,

Miloslav Výborný, Elisabeth Wagner and Michael in the April draft

The regional court in Ostrava, for which the judge is JUDr. Bohuslav

Drahosova, on the repeal of section 15 of the Act No 155/1995 Coll., on pension

insurance, with the participation of the Chamber of deputies of the Parliament of the United Kingdom and

Senate of the Parliament of the Czech Republic as the parties,



as follows:



The provisions of § 15 of Act No 155/1995 Coll., on pension insurance, is lifted

on 30 April 2005. 9.2011.



Justification



(I).



Recap of the proposal and the arguments of the applicant



1. the Constitutional Court received on 13 June. 4. the 2007 proposal by a regional court in

Ostrava (hereinafter referred to as "the applicant" or "District Court") in accordance with the

article. 95 para. 2 of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution") sought

cancellation of part of the provisions of the second sentence of section 15 of Act No. 155/1995 Coll., on

Pension Insurance Act, in the version in force at the date of 29. 5.2006, expressed

the words "to 21 800 Eur" and the words "and the amount of personal assessment

the base of over £ 21 800 counts 10% "; as an alternative to petit while

the applicant proposed to repeal the provisions of § 15 of Act No 155/1995 Coll., on

pension insurance.



2. in the application initiating proceedings the claimant stated that in the legal stuff

JUDr. The decision of 29 January 2004. 5.2006 (number 480 506 088)

applicants granted from 1. 2. the 2006 full disability pension pursuant to the provisions of §

paragraph 39. (l) (a). and Act No. 155)/1995 Coll. of 13 346 € per month with

the grounds that the pension consists of a basic amount, which shall be 1 470 Czk

on a monthly basis, and the percentage of acreage, which makes 11 876. This percentage

acreage was calculated from the personal assessment base established for

1986-2005 in the amount of $ 68 635.



3. The plaintiff attacked at the regional court in Ostrava, the amount of the granted pension and

knowing that the amount was determined in accordance with the provisions of article 15, and

subs. and section 41 of Act No. 155/1995 Coll., and pointed to the fact that

the total amount granted the pension amounts to only 20% of his income (which

not be considered a reasonable sustenance). Since the average amount

income in 2004 amounted to 44% of the gross average income (or 57%

the net average income), had the applicant considered that the pension granted to him

determined by the vast inequality of his personality to the other poživatelům

the pension system. In the lawsuit, filed at the District Court said the plaintiff

non-compliance of the provisions of section 15 of the Act No 155/1995 Coll. with the provision of article. 30

paragraph. 1 of the Charter of fundamental rights and freedoms ("the Charter"),

as the provisions set out in this reduction of income for the calculation of the percentage

the acreage of the pension it has disadvantage and based its unequal position.



4. At the regional court, the contested decision considers the applicant for

correct, if this is a method of calculation and compensation of seniority.

The appellant however came to the conclusion that the provisions of section 15 of the Act on

Pension Insurance Act cannot be accepted, because it is unconstitutional, as they are

This provision is harmed by the insured persons with higher incomes, meaning those persons,

whose income exceeds the basic personal amount

the calculation basis. For employees, moreover, unlike people

self-employed there is no maximum limit

the calculation basis.



5. the applicant points out that, according to the name of the law is an insurance

therefore a legal Institute, which each rule has its steady

the contents of the. The insured person carries its own risks for consideration on another body which

This risk takes over and under certain situations is bound to provide

provided for the performance. The insurance paid, therefore, must be treated

as with locking, rather than as taxes. The premiums would be according to the

the relationship between the applicant and the premiums paid should be

clear and reasonable. The applicant stresses that, in particular, the application of the second

reducing boundary occurs to a substantial reduction of the calculation basis,

without apparent consideration for the legitimate objectives of the legislature and the meaning of such

of the legislation. The effective result of the application of such reduction is

the sum of the paid insurance is higher, the relatively lower

pension.



6. the contested provisions of section 15 of the Act No 155/1995 Coll. is not according to the

the petitioner's provision that would, indeed, but on the contrary, inequalities

provision that the flagrant inequality between insured clearly

is based. In any case, you cannot infer a relationship of proportionality. It is therefore

According to the opinion of the applicant must be determined whether the reasons for such a

how objective and whether the means used are proportionate.

Disregard as the appellant cannot, that the criterion of proportionality

the selected resource (rate reduction) in the completely laws

absentuje, and provided for the reduction of the border and the percentage of the bear

the characters of the clear choice of the legislature. Reduction should be for all

insured the same; the rule of law cannot claim holders

insurance and at the same time the selected resources to distribute in a way that those

who contributed the most to the system, does not often 20% of their

the original monthly income, from which the insurance was selected.



7. the applicant also notes that the principle of solidarity is not a specific

legal Institute, of which the result certain rights and obligations.

Solidarity means a sense of belonging to a particular unit,

cohesion, togetherness, the willingness to mutual assistance and support. This is

undoubtedly the principle of ethically completely acceptable, but that in itself

to justify and to accept the above differential treatment

It is not sufficient. Solidarity is sufficiently and strongly reflected by

insurance payments are based on consistently from the salary. The system provides

sufficiently and general solidarity between generations and even goes so far as to

that requires, in order to contribute to this system and those who already have it

in essence, they cannot expect any new transactions (working pensioners).



8. At the end of the proposal the applicant States that the provisions of article 15, law No.

155/1995 Coll., on pension insurance, in its view, is inconsistent with article.

1 (1). 1 of the Constitution, as well as with the article. 1 of the Charter, since it clearly unreasonable

way discriminates against a considerable part of the insured.



II.



Representation of the parties



9. the Constitutional Court, in accordance with the provisions of § 42 para. 3 and 4 and § 69

Act No. 182/1993 Coll., on the Constitutional Court, as amended,

the present proposal to the representation of the Chamber of Deputies and the Senate of the

The United States and also a written opinion on the Ministry of labour and

Social Affairs (in the sense of § 48 para 1 and 2 of the Act on the Constitutional Court).



10. The Chamber of deputies of the Parliament of the United Kingdom in its observations

first pointed to the fact that in the legislative process on the

the soil of the Commons was not in relation to the texts of the provisions of § 15 of Act No.

155/1995 Coll. raised no substantive objection. During the general debate to the

Printing House # 1574 were on 29. 6. the 1995 raised two amendments

suggestions (Dalibor Štambery and Jaroslav Štraita) concerning the text of the provisions

section 15, which are both touching only the amount of the individual reduction of borders,

not their percentuálních values. Assembly print # 1574 was then

approved with Amendment members of Dalibor Štambery. At the end of

their representation of the Chamber of Deputies notes that Act No. 155/1995

Coll. was adopted after duly carried out by the legislative process, was signed by the

respective constitutional officials, and declared in the collection of laws.



11. the Senate of the Parliament of the Czech Republic in its observations that the

Act No. 155/1995 Coll. was adopted by the Chamber of Deputies prior to the

the establishment of the Chamber, he pointed out, however, that the Act was

amended many times (it is less than four dozens of amendments),

However, no amendment to the contested provisions did not cover § 15. Regarding the

navrhovatelovy argued that the "for employees as opposed to people

self-employed there is no maximum limit

the calculation basis "the Senate pointed out that after the application was

the Act No. 261/2007 Coll., on the public budget stabilization, with effect

from the 1. 1.2008 in the provisions of § 15a of Act No. 589/1992 Coll., on

social security contributions to the State employment policy,

a maximum limit is the calculation basis (i) for employees.



III.



The opinion of the Ministry of labour and Social Affairs



12. the Ministry of his comprehensive opinion stressed that

calculation base represents in the Act on pension insurance key

the Institute, without which this law is basically neaplikovatelný. For

determining the calculation basis are essential elements,

the personal assessment base. the reduction of the border. Reducing the boundaries of the

determined by the Government, by regulation, on the basis of the provisions of § 107 para. 2 of the Act


on pension insurance, and the law of the increase of these borders does not

("the Government may increase") and does not specify for their determination of any

limiting conditions. The existence of borders and reducing their level of

the settings cannot be assessed without taking into account, according to the Ministry of all

links and other elements of the trips design calculation of the pension,

i.e.. in particular to the method of indexing bases effectively

achieved in the period from which the income for the calculation of the pension

finding.



13. At the same time the Ministry of rekapitulovalo the historical development and highlighted,

that reduction has been made in the Czech border pension insurance introduced

the law on pension insurance, but already existed for almost 50 years before the

the effectiveness of this law, starting with the effect of Act No 99/1948 Coll.

the national insurance scheme. It should therefore be noted that the legislation of the

1995 first removes one of the earlier restrictive measures

consisting in the fact that, in essence, to income above a certain threshold

did not reflect at all. In this context, the Commission notes that the legislation

valid from 1. January 1996 contained even a host of other restrictions

the amount of the pension, both fixed amount, as well as the highest percentage

acreage, which is assumed by the Pension Insurance Act. The existence of a

reducing borders is, therefore, according to the Ministry, the only "restrictive" element

in the current design of the calculation of the pension.



14. The Ministry further pointed out in its opinion on the international

by comparison, in which pointed out how the Group of countries with high (eg.

Italy, Finland, the Netherlands, Estonia and Croatia) and low (eg.

United Kingdom, Ireland, Denmark, Belgium and Switzerland) degree of equivalence

granted a pension and income before retirement.



15. Attention it has devoted to the Ministry and the nature of the pension

insurance, and referred to the fact that it is widely acknowledged

differential character of social and private insurance. The main differences

between the "social insurance" (how to mark social systems), and

"commercial insurance" (how to mark the other types of insurance) are:

and social insurance) is based first and foremost by the law, while commercial

the insurance commences at the contractual principle; (b) social insurance is for)

the conditions laid down by the law in principle, compulsory, while commercial

insurance is primarily a voluntary; c) performance in the social

insurance is defined Parametrically (rather than individual) law

(often other than that on which are laid down in the rules of payment of insurance premiums),

While commercial insurance, the indemnity is determined in a particular

individual agreement or at least follows from it; (d)) on the payment of premiums

do not participate in the social insurance this insurance only

sympathetic, but also their employers; e) performance by the State

(through pension payers) is usually dependent on the payment of

insurance premiums, for insured persons who are involved in the pension insurance

from employment, while the premium payers, not

However, his "de facto payer"; (f)) in the social insurance code shall apply

many of the social and protective features that significantly modify the relationship between the

obtained by revenue (paid premiums) and the amount of benefits, terms and conditions

the right to benefit (pension); in particular, the institutes of spare time

insurance (when there is no insurance), excluded periods in the calculation of

personal assessment base, the calculated time for entitlement to invalidity

pensions and the guaranteed minimum pension. For these reasons is growing up

the Ministry concluded that you cannot agree with the statement that paid

the insurance must be treated as insurance rather than as taxes.

The payment of social insurance premiums has a completely different meaning and impact

than in commercial insurance.



16. The next section of his opinion, the Ministry dealt with the principle of

solidarity. In relation to the so-called. Ministry of solidarity between generations

notes that the age of retirement, although in the last

years, approximately the speed of renewal of hope

survival, however, is annually paid more of the old-age pensions, which

affects the expenditure for pension insurance. The amount paid on the old-age

pensions in recent years so grew faster than number of old-age

pensions. Solidarity within the (given) the generation, the Ministry States

that solidarity with the economically active economically inactive citizens

manifests itself mainly through the replacement of insurance periods. As to the

the time that is taken into account for the purposes of pension insurance, although

the insurance does not pay for them or any other payments. With the existence of spare

In addition, the periods of insurance is related to the so-called. excluded time; in essence, it

substitute insurance periods that fall within the applicable period of

finding receipts for the calculation of the pension.



17. An important element of solidarity in the context of the generation then presents by

the Ministry of the so-called. income solidarity, which leads to a higher rate of compensation

pre-retirement income for people with low income in the long term with the fact that

rising income level of compensation is declining. The application of the principle of solidarity

in the pension insurance allows you to prevent the social exclusion of certain

population groups and their risk of poverty. In this context,

the Ministry stresses that taking into account the General level of income

the population of the United States and in relation to the objectives, which seek to ensure the

Prevention of social exclusion, in maintaining the standard of living of pensioners and

promoting solidarity within and between generations, the situation is

retirees. Czech Republic belongs to the countries with very low levels of

poverty.



18. Income solidarity is reflected throughout the design of the calculation of the pension.

The amount of income for the calculation of the pension will do for the whole period of economic

things to do, but only a part, which falls outside the period at the

early, when incomes are generally lower. It is also an expression of solidarity,

that for the determination of the amount of the percentage amount of income taken into account

obtaining assessment basics (gross income), of which has also been

paid insurance premiums, but the so-called. annual assessment bases, which are in

Basically, obtaining assessment foundations multiplied by the coefficient

the increase in the general assessment base, thus ensuring the preservation of

the level of income achieved in a particular calendar year, the applicable

the period since the year pension.



19. An important expression of solidarity within the calculation of the pension are based on

just reducing the boundaries of the Ministry, which is from a personal

the calculation basis calculation checks the basis for determining the percentage

the acreage of the pension. At the same time, the Ministry points out that the basic

pension insurance contributes significantly to poverty reduction, the older

generation, which is also one of its fundamental objectives. Abolition of the reduction

the boundaries of this current situation significantly worse, because of the reduction

boundaries are an element which substantially affects the level of

solidarity in the basic pension insurance. With reference to find

The Constitutional Court in case SP. zn. PL. ÚS 12/94 of 12 April. 4. the 1995 (see

below) the Ministry concludes that it is up to the legislature whether retirement

the system favors the equivalence, or solidarity.



20. The next section of his opinion, the Ministry commented on the question

replacement, and reminded that the reduction in replacement rates between

It was among the so-called. the stabilisation measures. The question of a possible increase

This ratio is therefore to be assessed whether or not due to an overall

future developments of the balance of the pension scheme. Replacement rates depends on the

each State on a number of factors. It is a balance of revenue and expenditure

retirement system (including forecasts), premium rates on retirement

insurance, the total tax rate and population load and odvodového

employers support scope of supplementary pension systems,

the historical development of the pension system, the range of insured persons důchodově

and the circle of taxpayers premiums to the pension insurance, the importance of revenue

pension insurance for the financial security of the population and the overall role

the pension system in the company (including the extent of solidarity). With

taking into account these factors, concludes that in the Czech Republic

the current design of the above income and replacement rates correspond to the

socio-economic and political reality, and that is "clear

the arbitrariness of the legislature ", which groups of insured persons with higher incomes

merely wants to provide higher pensions.



21. the reduction of the calculation basis through reducing borders, i.e..

the calculation of the pensions of a 100 average income not identified for

the vesting period, but from the reduced diameter, it is therefore, according to the Ministry of

given the overall conception of the Czech pension system, which is based on the

the broader concept of solidarity in the system, and interconnectivity and

the balance of the various elements of this system, in particular the scope of compensation

individual periods in a way the average income for discovery


the vesting period (including their indexation and reduction), the percentage rate

(1.5%) from the calculation basis for each year of the period of insurance,

pensionable age, the Institute of dopočtené of the time. It should be also pointed out that

the range of solidarity in pension scheme is recognized and it is celospolečensky

most of the company whether or not required, and that a more significant limitation of this

solidarity would be by the vast majority of the company's perceived

negatively.



22. In conclusion, the Ministry expressed its position on the question of

the cancellation of the first and second reduction limits. The cancellation of both reducing border

to reduce the personal assessment base for calculating a pension under section

15 of the Act on pension insurance would, according to the Ministry immediately

effect of newly granted pensions, a horse by increasing

their average relative level to wages from the current approximately 45% to

almost 80%. In the overall level of income would be the abolition of the reduction of boundaries

gradually, as the obvious hits only newly granted pensions.

However, in the long term would increase the average level of

old-age pensions paid (as measured by average old-age sessions

income of the average wage) up almost 65% of the average wage. This fact would

He is negatively in the total expenditure on pensions and sustainability

the whole system.



23. The cancellation of the second reduction threshold for the reduction of personal assessment

the basis for calculating a pension under section 15 of the Act on pension insurance would

According to the Ministry of the summaries of newly granted pensions,

However, this increase would have raised their average relative level to

wages only about 5% of the current 45% to slightly more than 47%.

The relatively small increase in the level of newly granted pensions is given by

only less than 30% of the people, which is reserved for the pension, personal

the assessment base is above the second reduction and offset boundary is only

from 10 to 30%. When fundamental change in reducing border or in their

cancellation would be necessary to analyze the level of all the other elements of

the design calculation of the pension, the percentages for the period of insurance in

retirement age and at the time after reaching retirement age and

reduction of the percentage amount of the pension for early retirement

the pension. Furthermore, it was necessary to rethink the position or level

taking into account the so-called. periods of insurance, which shall be assessed for the purposes of

pension insurance, although for them, insurance or any other form of payment

drawn are not.



24. cancelling reduction the boundaries to reduce the personal assessment base

When calculating the pension would be in the amount of newly granted pensions reflected

by increasing the pensions of assessed from personal assessment base

excess reduction threshold, and if it was associated with changes in

other parameters affecting the amount of a pension, this would lead to

the increase in pension expenditure. Changes in reducing border controls would be set up

inequality between different groups of insured persons, as they would have touched

only for the effectiveness of these imputed income changes, and not from the

economic terms, real delete these inequalities. Cancellation

the provisions of section 15 of the Act on pension insurance would result in it,

It would not be possible to mark the pensions, or should all direct pensions

to be calculated only in minimum guaranteed rates, since it would be

repealed the definition of a key element for the calculation of the percentage amount of pensions

(and the provisions of § 16 to 18 would become practically neaplikovatelnými, and

therefore been rendered obsolete by), and the adoption of the new legislation, it would be very difficult and

as well a reduction once again had to be accepted, because otherwise

replacement rates (proportion of the amount of the pension to the net salary) represented more than 90% of the

(91 to 97%), which is financially totally unrealistic.



25. In addition, the Ministry points out that the obstacle to the reduction

borders, so that for the calculation of the pension, has evaluated the personal assessment

basis on a larger scale, is not itself the provisions of § 15 of the law on

Pension Insurance Act, since the amount of these boundaries determined by the Government, by regulation,

and for the determination of the amount of these borders are not in the Act on pension

no insurance criteria. These criteria are, however, in practice,

given both financial capabilities (including balancing system, respectively.

calling the amount already allocated pensions, in order to avoid differences between the

pensions granted at different times), and the task of reducing border

in the concept of the Czech pension system, and therefore it was not, or not

be made significant changes in the amount of reduction of boundaries

(theoretically it would be possible for the Government to establish a second reduction threshold

When piece measures e.g.. 60 000 CZK).



26. At the end of his opinion, the Ministry notes that the proposal

Regional Court in Ostrava on cancellation of the words "to the £ 21 800" and the words "and of the

personal assessment base amounts over € 21 800 counts 10% "in the

the provisions of the second sentence of section 15 of the Act on pension insurance is not

First, because these words are, as amended Pension Act

insurance do not occur. The provision of section 15 of the Act on pension insurance

they are still the amount of CZK 5 000 and 10 000 CZK, and the amount of

There were no other law amended; These amounts have been raised

Regulation of the Government, but the Government is not a direct amendment

the law. It further argues that neither amount 21 800 Eur is not valid in

2009, as for the year 2009 is the second reduction threshold on the basis of regulation

Government no 365/2008 Coll., the amount of $ 27,000; even when acceptance of the fact that

Decree-Law noveluje law directly, there is an impediment under section 66 paragraph 1. 1

Act No. 182/1993 Coll., on the Constitutional Court, since the contested the wording of, i.e..

amount 21 800 Eur, is no longer valid (see regulation of the Government No. 414/2005

Coll., regulation of the Government No. 462/2006 Coll., regulation of the Government No. 261/2007 Coll. and

Government Regulation No. 365/2008 Coll.).



IV.



The diction of the contested provisions



27. the provisions of section 15 of the Act No 155/1995 Coll.: "Calculation basis is the

the personal assessment base (§ 16), if the amount does not exceed $ 500.

If it exceeds the personal assessment base the amount of CZK 5 000, the

calculation base so that the amount of $ 5,000 is counted in full, from the

personal assessment base amounts over $ 5 000 to 10 000 CZK

counts 30% and from the personal assessment base amounts above 10 000 CZK

10%. ".



In the.



The terms of the claimant's evidence, the admissibility of active design



28. the proposal he handed the regional court in Ostrava, in the context of proceedings for the

It takes place, and to the cancellation of the proposed provisions of the law on

pension insurance is one of those must apply in the proceeding.

His locus standi thus relies on the provisions of § 64 para. 3 of the law on

The Constitutional Court.



29. the Constitutional Court and the question of whether the provision in the proposal

can become the subject of proceedings within the meaning of the provisions of § 64 et seq.. law

on the Constitutional Court, even in situations where there was an increase in government regulations

the so-called. the second reduction (on which, moreover, pointed out in his

opinion and the Ministry of labour and Social Affairs).



30. The rapporteur proposes in the first alternative, their remedies to cancel

under the provisions of the second sentence of section 15 of the Act on pension insurance

expressed by the words "to 21 800 Eur" and the words "and the amount of personal

the calculation basis above 21 800 Czk 10% ". The Constitutional Court is

Therefore, they propose to grant the derogation under the statutory provisions, which in the Act

No. 155/1995 Coll. amounts were established, which were later in the

the meaning of the provisions of § 107 para. 2 the same Act, by regulations of the Government gradually

raised.



31. The Constitutional Court, however, did not have to deal with the consequences of the process of the Government in

the meaning of the enabling provisions, therefore, the question whether or not in

the meaning of the provision of section 67 para. 1 of the law on the Constitutional Court the conditions

for the termination of the proceeding, or whether it is a proposal within the meaning of the provisions of § 66

paragraph. 1 of the law on the Constitutional Court admissible. Indeed, the appellant raised in

the submission of an alternative proposal to the Constitutional Court, while in the second variant

He suggested the cancellation (of the whole) the provisions of § 15 of Act No 155/1995 Coll., constitutional

the Court therefore did not find the conditions for termination of the proceeding and consider the proposal for the

permissible.



Vi.



The constitutional conformity of the legislative process



32. the Constitutional Court, in accordance with the provisions of § 68 para. 2 of the law on

The Constitutional Court examined whether the Act for which the appellant argues

the unconstitutionality of the provisions was adopted and issued within the limits of the Constitution

set out competences and constitutionally prescribed way.



33. From the observations of the Chamber of Deputies and the Senate of the Czech

States, as well as from the relevant Council publications and data on the progress of

the vote, the Constitutional Court found that the Chamber of Deputies approved the proposal

Act on pension insurance on its 32. meeting on 30 November. 6. the 1995 so

even before the creation of the Senate. For 100 and 76 voted against the parliamentarians. Law

was constitutional actors signed, and on 4 December 2002. 8. the 1995 declared in the collection

laws, in the amount of 41 under the number 155/1995 Coll. on Pension Law

the insurance was accepted constitutionally in the prescribed manner and within the limits of


The Constitution provided for competencies in compliance with the rules laid down in article 4(1). 39

paragraph. 1 and 2 of the Constitution.



VII.



Your own review



34. Thus, as revealed in the narrative part of the grounds, is the Constitutional Court

the task of assessing the constitutional conformity of the contested provisions of § 15

Act No. 155/1995 Coll., on pension insurance. Subject to review

The Constitutional Court is therefore primarily the question of whether the ratio between the amount of income,

premiums to the pension insurance and the amount of the pension for the existing legal

editing meets the constitutional requirement of "reasonableness" tangible security

in old age (or incapacity to work or loss of breadwinner) and

does not create inequality claim pension insurance participants.

The assessment of the merits test application for annulment of the provision of section 15 cannot therefore

consist only in the examination of the constitutional conformity custom implementation

the right to adequate material security, as enshrined in the provisions of article. 30

paragraph. 1 of the Charter, but also in terms of the fulfillment of the principle of equality

laid down in article 4(1). 1 of the Charter.



Brief deskripce of pension systems and the Czech legislation



35. the contested provisions of section 15 of the Act No 155/1995 Coll., on the basis of

the pension is calculated, it is not possible to assess in isolation. only

through the prism of the law-but in the wider context of the construction

the pension system as one of the components of the social policy of the State.



36. The pension system constitutes a tool of social policy of the State

through which shall be pursued (Basic) social function

policy. Laws regulating the issues of social security, including

the area of the pension systems, are generally a reflection of social policy

the State, which always comes from a set of factors of social and

the economic. In the pension scheme while still find their fulfillment

mainly the following features. Initial (historically the oldest) is a feature

the trade, which aims to provide protection to individuals or social

groups. The pension system has also a function of the distribution and

redistributive, and redistributive function is associated with mitigation

the differences and inequalities between individuals or social groups. One of the

other features of social policy is also a function of the homogenisation which tends

to mitigate social differences and unjustified differences, but the purpose of

in any case not levelling. Among the features of social policy include

also the function of the stimulus, which should support the economic policy of

by stimulating individuals (cf. Gregorová, Zdeněk: pension systems,

Brno: Masaryk University, 1998, p. 45-47).



37. Pension systems should ensure the provision of tangible

security when certain social events. The provision of tangible

Security can be implemented through three planes (called.

the three pillars). The first (General) represent a pillar of pension schemes

provided by the State, the second pillar is based on employee

(pension) and third (as well as the second optional) pillar

is based on the principle of personal savings (so-called supplementary pension insurance).



38. In terms of the possible financing of pension systems, which are not

directly financed by the State budget, there are two basic "insurance"

methods of financing-continuous and fully funded. The primary difference lies in

the fact that in the intermediate system, selected insurance from the economically active

people-premium-payers being used on payment of pensions already existing

pensioners. In the funded system, the Medicare Premium invests in the

individual accounts with a view to the financing of future pension

the claims of persons who pay insurance premiums.



39. the rolling system in principle requires full to function called.

solidarity between generations, which means in principle the equality of income and expenditure

the pension scheme in each year. In other words, if the base for example.

pension insurance based on an intermediate system, this means that

the currently selected insurance premiums be paid already granted benefits. Financial

contributions do not accumulate in order to invest. Economically active

the generation immediately pays pension benefits economically inactive

generation. In the interim, the financial balance of equilibrium systems can be

achieved only if the revenues are the same as expenses.



40. In contrast, funded such intergenerational solidarity

characterized by is not because it is focused on individualized coverage

social risk of the individual in the future by saving his resources.

The yield of the funded system is determined by the gross income from the assets

accomplishments in the financial markets when conditions defined

the regulator and the supervision and the amount of administrative costs.



41. The funded system undoubtedly meets the normal private law notion

"pojistnosti" much more than a running system, this does not mean, however, that

continuous system was not fundamentally in the theory of social security is assumed to be

for system safety. Retaining the character of the shows, in principle, of the following characters:

and an intermediate is a summary of selected insurance assigned designed to

protection of rights from the system and any premium payments and the amount thereof does not have

especially in defined benefit systems, the direct impact on the amount of paid

benefits, at least has the effect of indirect, since participation in the insurance scheme is

an essential condition of entitlement to future performance of the system, taking

the design takes into account the amount of benefits is always in some way

at least the length of the contributing to the system.



42. in the interim systems necessarily is not a prerequisite for the existence of a direct

the link between the amount of the premiums paid and the amount received in the future

the dose. If the dose received in the future is always somehow dependent on the

the past paid the premium, then that is the length of the premium payments, which

is a variable in the batch formula possibly affecting part its amount.

The amount, however, is largely dependent on the principle amount of insurance

paid future generations. Any benefits granted thus in zásluhovost

intermediate systems fundamentally unable to derive directly from above in the past

premiums paid, regardless of the premiums paid in the younger generation

the time of the granting of benefits, as would the risk of deficit

financing of the system. However, depending on the design

derive benefits even in the intermediate degree of equivalence can be

benefits granted and prior earnings at a time of economic activity higher or

lower.



43. In the framework of the two systems, there are two basic types of benefits from

point of view depending on the amount of benefits the amount of the previous income (respectively.

paid premiums). As for the so-called. DC schemes, and batch systems

defined. DB schemes are by their very nature private rather

continuous systems, pension schemes more capital-

systems, however, in practice, appear all sorts of combinations.



44. in the system-defined contribution schemes is defined contribution rate,

which the insured person pays into the system. The amount of the pension depends directly

in proportion to the amount of recoverable contributions and their exploitation and indirectly

in proportion to the life expectancy of his generation, at the moment of departure of the insured person to

the pension. The amount of the pension is not running in advance of "guaranteed", respectively.

It is not predictable. It is clear that this method of construction of the dose is

especially suitable for funded schemes, however there are construction

defined contribution schemes into an implant system to a system of continuous.



45. In contrast, in a defined benefit system there is an exact formula, according to

that pension shall be calculated. After the adoption of certain simplifications

[estimated period of insurance, the amount of income (or calculation basis)

etc.] the insured person should have a rough idea of the amount of your pension

a number of years prior to retirement. The credibility of any of the above

commitment to the individuals, however, is strongly conditioned by the key

the parameters of the pension system will not be in time to change.



46. dependency benefits on Construction the previous premium payments is.

an important factor influencing the labour market and employment, which

He performs to the fore in the context of the long-term unsustainable

pension systems in some of the pure forms and in today's

parameter settings. Pension schemes should not encourage

early exits from the labour market. To remain in the labour market longer and longer

period of insurance shall, in the context of both the pension schemes, in principle, higher

the pension, which helps to reduce the risk of poverty in the age of postproduktivním.

The degree of influence on the behavior of individuals in the labour market is, however, the two systems

different. Systems are defined contribution schemes in its pure form the actuarial

mathematically the neutral. In other words, the premium paid for an additional year

in the labour market are fully reflected in the higher pension. Net contribution

defined system so not motivate individuals to early exit

work, or "does not punish" for later retirement. For batch

defined system is in practice almost impossible this neutrality

to accomplish this. Different generations, gender or income group are as follows


system benefits or vice versa "penalized" in relation to decisions on

to remain in the labour market, and it is possible to motivate the individual to a longer

to remain in the labour market much more.



47. On the other hand, however, both systems in the reverse ratio of benefit

differ in the degree of zásluhovosti. Defined contribution schemes are systems in

its pure form also fully zásluhové, IE. that pension is fully dependent on

income (odvedeném insurance) of an individual. Provide all of the

the insured the same level of compensation for their income, without předdůchodového

regardless of the absolute amount of such income. In contrast, defined benefit

systems in the most hidden of Intragenerational solidarity income.

The rate of refund income is so pre-retirement relatively higher in people with

lower incomes than people with high earnings. A system with a high

income solidarity (typically defined benefit system) has

featuring squeeze tool post-productive generation of poverty,

However, excessive income solidarity creates barriers;

the system. Insurance is perceived as a tax, therefore, decreases the motivation

pay into the system, which ultimately supports the grey economy.

Fully zásluhový system does not transmit a negative stimuli to the labour market, but in the

its pure form, there is the risk of an insufficient amount of the pension for the part

pensioners. The revenue of these endangered categories, then they must be supported by

other social systems.



48. Both in terms of financing and in terms of the design of benefits

each system has its advantages and disadvantages. The defined benefit system

allows you to provide the necessary solidarity, but if its weight in

pension scheme is too large, can have a negative impact on motivation

individuals to remain on the labour market. On the contrary, the system-defined contribution schemes

It does not affect the job market, but it can lead to a poor part of the population.

Ongoing funding is vulnerable to demographic development and is

politically abused to intergenerational inequity. In contrast, the funded

financing is sensitive to developments in financial markets, quality of regulation

and the level of administrative costs.



The current Czech system of pension insurance



49. the current Czech system of pension insurance can be considered

dvojpilířový system, the first pillar of the system is essential, and the second

(or in terms of the general theory of the third) pillar represents the legal

voluntary supplementary pension insurance with State contribution. The first pillar

This is a universal system (the whole population), single (not

would constitute unjustified differences), mandatory (establishes

financially participate in the formation of resources) and the social solidarity. Construction

performance of the pension system is built on the following

principles which must be respected by the legislation: zásluhovost,

the social need for security guarantees, and to initiate, compensation and

social integration, the maintenance of acquired rights, valorisation and

removal of hardness (cf. Gregorová, Zdeněk: pension systems,

Brno: Masaryk University, 1998, pp. 80-85).



50. Pension consists of two components, the base amount provided for

a fixed amount for all types of pensions regardless of the period of insurance and

the amount of earnings and of the percentage amount reflecting the previous earnings

of the insured person. Old-age (full invalidity and partial invalidity pension)

the amount of the applicable percentage rate depending on the length of time gained

pension insurance of the calculation basis. For the determination of the calculated

the base of the two elements are essential, and that the personal assessment base.

the reduction of the border. In determining the calculation basis is based on the

personal assessment base, IE. of the total bases

the insured in each of the calendar years of the vesting period, which

are using the coefficient of increase in the general assessment base

adjusted wage level achieved in the previous year

pension. The sum of the bases of the insured person per calendar

year multiplied by the appropriate factor increase in the general assessment

the base forms the basis for the calculation of the annual and monthly average

These annual bases for the applicable period is personal

the assessment base. Reduction of the personal assessment base is found

the calculation basis for the calculation of the percentage amount of the pension.



51. With regard to the financing of the Czech system of pension insurance can be

described as a clean system continuously funded, defined-benefit

defined. It is therefore a system that requires to function

a high degree of both Intragenerational solidarity, between generations, and

and Intragenerational solidarity is based on demographic trends, and

Therefore, increasing the number of pensioners compared to economically active persons, also

an indirect manifestation of solidarity between generations, as it constantly monitors

the need for a balanced financial balance.



52. Awarded the pension benefit is calculated by first multiplying the

the annual increase in the coefficient of General bases

the assessment base detects valorizované annual assessment bases, and

their sum. At the same time adding the excluded period. Calculation of personal

the calculation basis is then executes so that the aggregate of the annual

bases for the vesting period multiplied by a coefficient according to the §

Article 16(1). 1 Act No. 155/1995 Coll. and the resulting product will share the number of days

the vesting period (from which are deducted the so called excluded).



Calculation basis is the personal assessment base not exceeding

a set amount, which is counted in full, and when it

for the first time is exceeded, is reduced by 30%, while exceeding the

Second, reducing the border is only 10% of the započítáváno personal

the calculation basis.



53. On the basis of the described system, based on its principles,

These principles into the legal provisions, as well as the manner of its funding,

The Constitutional Court assessed the fulfillment of the provisions of article. 30 paragraph 2. 1 of the Charter,

laying down that "citizens have the right to adequate material security in

old age and incapacity to work, as well as for loss of the breadwinner ",

Act No. 155/1995 Coll., respectively its contested provisions of section 15.

The Charter outlines the basic parameters that define the social guarantees

a dignified human existence. The aim of the contemporary social security

the most general sense of the regulation is the responsibility of the citizen for its

the future of the (compulsory schemes) and the determination of the extent and forms of social

solidarity between the citizens required or voluntary transfer (of funds through

tax system or sponsorship); CF.. Karel Klíma, m.:

Commentary on the Constitution and the Charter, 2. release, Pilsen: Plzeň, Inc. 2009

p. 1234.



54. Legislation based on the General principles of trying to secure the

adequate physical security to all participants in the pension insurance, and

with a maximum emphasis on the principle of solidarity to solidarity, so

Intragenerational (i.e. income). The concept of solidarity to Constitutional Court

expressed in finding SP. zn. PL. ÚS 2/08 of 23 December 2003. 4.2008 (N 73/49

SbNU 85; 166/2008 Coll.) ^ *: "The level of recognition of the principle of solidarity depends on

zrovni the ethical understanding of coexistence in society, its cultural character, but also

the meaning of the individual justice and solidarity with others and

sharing their fate at a particular time and place. Solidarity can be viewed from the

individuals seen as internal or external. Internal solidarity is given by

emotional closeness relation to the other, it is spontaneous,

in particular in the family and in other partner communities. State to

This relationship typically does not interfere, or very limited (see

rodinněprávní modified by the law on family relations). This external solidarity

emotional closeness, and consent of the individual with its application

It is therefore zdráhavější. For example, the solidarity of the rich with the

the poor with less capable, able, healthy with sick. Become in

This area applies its power-vrchnostenskou features a very

actively. Through the principle of solidarity, that is, redistribution takes place.

motion transmitting from one source to the other-to those in need.

Solidarity has its limits. Can't have enough within a manner that it

those that affects, felt as unreasonable, fixed-width,

or even unfair and realize her his tacit consent. In the name of

solidarity may affect only a part of the State assets,

at the same time nedestruoval the activity of its performance and did not get behind the constitutional

border asset protection. ".



55. the Constitutional Court does not dispute in relation to an occupational pension scheme

the principle of solidarity between generations, because it is, as a system

continuously funded, built. The assessment must, however, be

solidarity income (intragenerational), reflected in the single

the percentage rate premiums of economically active

the population; groups of the population, therefore, pay vysokopříjmové

annually to the system for the payment of retirement benefits to a significantly higher

the financial amounts than lower-income groups. The principle of solidarity of the income


is reflected by the fact that during construction of the calculation of the pension according to the valid legal

modifying the pension system does not provide any equivalent to the insured

the performance, since-as already mentioned-above. even the trade and

a redistributive function of social policy.



56. In the implementation of trade and the redistributive function of social

However, the policy of the legislature in the design of the pension scheme,

respectively, in the construction of calculating pension benefits did not suppress

Another essential feature of social policy, that is not the function of the stimulus,

that should be a desirable way to influence economic behaviour

insured persons and ultimately lead to the increase of the total income of the

the system.



The pension system as a system of public insurance



57. the Czech Republic acceded to the construction of public social

insurance as a basic system in case of old age,

disability or death of the breadwinner until 1. 1. the 1996 Act just.

155/1995 Coll., on pension insurance, (insurance base has been laid already

Act No. 586/1992 Coll., on social security and

contribution to the State employment policy that worked after

a transitional period as a tool of gradual separation of selected insurance

from the State budget). It is a public insurance system, whose

the functions and principles are different from commercial insurance

(private), which is repeated in the theoretical works of traktováno

(which pointed out in its opinion and the Ministry of labour and social

things). For example. J. Vostatek (social and private insurance, Codex Bohemia,

1996, p. 65) States: "the obligation of the Insurance Act is a key element

social insurance, which is different from the typical contractual

insurance. In the form of compulsory insurance and barrier can be overcome

insurability of risks typical for private insurance. the risk of

unemployment is for the private insurance industry considered

non-insurable or difficult to insurable, â € štržní failure ' is here

a typical phenomenon. Social insurance is mostly funded by contributions

paid employees and employers, with any national

subsidies. ".



58. on the differential character of social insurance and contract insurance

said already pre-war professional literature. Points out, in particular

on public law Dictionary in five volumes of the Czechoslovak, specifically on the

"private Insurance (contract)", in volume III, London, 1934, p. 147

and subs. and "social insurance", in volume IV, London 1938, p. 343, and

seq.; These passwords are for example. States: "the name of the private insurance

We understand all kinds of insurance based on private contractual

proportion of interested parties as opposed to the so-called. social insurance.

Compared to private insurance, social insurance, however, has many different

characteristics of the. The most important conceptual difference between the private and

social insurance is that private insurance is based on the

the free decision of the insured person and the wearer, while social insurance

insurance is based on the statutory: who falls in the class of persons,

that includes the Social Insurance Act, must be insured, either

He wants or does not want, and recipient of the insurance, intended to the law, must

převzíti insurance, even though he knows that the first risk insurance with this

United insurance is too big, than to be exported

individuelním locking. ".



59. Even respecting the differences of commercial and public insurance, in

which is not meant to be based on the principle of equivalence (amount of the net

fully reflects the amount of insurance), the relationship between the amount of paid

premiums and the amount of granted pension to reflect and to individual participants

a degree of proportionality, to constitutionally konformnímu to populate the article.

30 paragraph 2. 1 of the Charter.



60. The explanatory memorandum to the Act No 155/1995 Coll. (1574, Printing House

the Chamber of deputies of the Czech Parliament, and parliamentary term) States that "the amount of the

rates and conditions of social security are designed

so that the insurance covers the expenditure on pension and sickness benefits

insurance, which are derived from the income of economically active citizens by

the current legal status; as for old-age pensions, widow's, widower's,

orphan, invalidity, partial invalidity and for výsluhu years, sickness,

support for the family member care benefit, maternity benefit,

the compensatory allowance during pregnancy and maternity. ... Selected insurance

will be in accordance with the budgetary rules separately registered channels

the State budget, which will then be reimbursed any spending on social

Security and employment through the budgetary chapter

The Ministry of labour and Social Affairs of the United States. ".



61. Insurance premiums, and the amount (total 28%, of which an employee of 6.5% and

21.5%) is therefore the employer established only on the basis of economic

the calculation so that it paid in a given year were covered in full

in the same year selected payments of insured persons.



62. In the chosen design on the revenue page reflects the fundamentally

the principle of solidarity, because the insured person carries into the system of the financial amounts

directly proportional to the amount of their (zdaňovaných) of income, and thus it is realized

only protective and redistributive functions of social policy. On this

conclusion is not even the fact that the Act No. 261/2007 Coll. occurred.

"capping" contributions to the pension scheme (the maximum amount for the

the insurance premium is in 2010 dvaasedmdesátinásobek of the average wage).



Physical security-replacement rates



63. the Charter of fundamental rights and freedoms guarantees all participants

pension insurance reasonable physical security. The adequacy of the

to be understood as a vague legal concept. The adequacy of the material itself

security in relation to individual pension insurance participants is

should be seen in relation to meeting the needs of the individual, in

relation to the widest possible range of people, but also in relation to the insured persons as

the payer spoluvytvářejícímu financial resources, from which it will be appropriate

physical security is provided. The adequacy of the legal (Constitutional)

the category is, however, much rather focuses primarily on an examination of whether the

the pension system is (or, in General, social) insurance

able to in case of defined social events to ensure the affected person

such amount of resources to ensure its further life

respect for the dignity of the category in its social context.



64. the term adequacy criteria is an internationally used comparative

the scale the so-called. individual replacement income-standard

of the individual. A typical example of the use of comparative criteria such as

the basic rule of adequacy criteria system. The European

the social security code (promulgated under Act No. 90/2001 Coll., m. s.). In

article. 25 requires each party to ensure that protected persons

the provision of old age benefits further by defined criteria. Provides for the

then the criteria of age and the criteria of a minimum range of covered

persons. As regards the amount of the benefit, provides in article. 28 that the dose is regularly

recurring payment. On the basis of article 87(3)(c). 65 et seq. is a workable typical

the recipient benefits, which in terms of income is defined as a typical

a skilled worker, and defines a desirable replacement rates. A typical

receiving an old-age benefits (and therefore the reference object, the adequacy of the

System) is a man, a skilled worker, in old age with his wife,

which is guaranteed by the replacement rates of 40%. Somewhat more stringent,

However, similarly designed proportionality test has also

The International Labour Organisation No. 128 on invalidity, old age and

survivors ' benefits (published under no. 424/1991 Coll.), which

required replacement rates for standard individual income-45%.



65. it is therefore apparent that a fundamental legal requirement on pension

systems is to provide a replacement, not all persons who

indoor running, but persons defined as income-standardized

individual, and this design focuses on the person with more or less

average incomes. None of the international legal instruments governing the

Czech Republic tied, is not required to be the same relative value

replacement (in percentage terms) achieved for each

of the insured person.



66. According to the last report of the Czech Republic on the implementation of the European code of

social security (see the sixth report on the implementation of the European code of

social security, cf.

http://www.mpsv.cz/files/clanky/6219/zprava_EZSZ_6.pdf) replacement rates

the revenue of a standard individual in 2006 amounted to 46.2%, in

2007 was 45.1%, in 2008 already 44.6%. Similarly, the General also decreases

replacement rates (the ratio between the average wage and the average income)

-in 2003 (gross wage) 42.2%, in 2007 amounted to 40.6%.

This decrease is caused by distortions in wage growth, the pension

the formula in a defined benefit system, and again in an effort to maintain a balanced


financial balance of system (decreasing the number of economically active

the insured in relation to pension recipients).



67. From the foregoing, that the Czech pension system base

requirement of good faith, as defined by the international treaty

instruments, meets. However, it is able to meet (with regard to the

just a system of continuous batch defined) at the cost of a high degree of

intergenerational and Intragenerational solidarity. That's because while maintaining

balance of payments, it was possible to maintain a desirable replacement rates

individuals with earnings moving about somewhere around average wage, is

need to resign from an equivalent level of individual replacement for

individuals whose income is in the order of vícenásobků of the average wage.

An example of this can be the data contained in the following table:



----------------------------------------------------------------------------

Multiple of the old-age pension granted in

the average 2003 2004 2005 2006 2007

wages

----------------------------------------------------------------------------

0.7 55.6 53.6 55.4 55.7 55.2

1.0 44.3 42.9 44.2 44.4 44.0

1.5 32.1 31.2 32.2 32.3 32.0

2.0 25.6 24.9 25.6 25.7 25.5

2.5 21.7 21.1 21.7 21.8 21.6

3.0 19.1 18.6 19.1 19.1 19.0

----------------------------------------------------------------------------



68. it is clear from this report that the system is capable of long-term

to guarantee a satisfactory replacement rates in individuals with incomes moving

around the average wage, and salaried individual favours

below-average (which is seen as a reasonable preference). Can

do only at a price reduction of individual replacement for people with

two-and vícenásobkem of the average wage-them system in terms of the General

guarantees a dose that according to the legal provisions, represents a certain minimum

decent survival in old age, however, it is the dose that is unable

to guarantee the preservation of the usual standard for these people from the times

economic activity.



Physical security-reducing the boundaries of the



69. Replacement rates, i.e. the relationship between wage earners and meted out pension

dose, showing clearly degressive character, is the result of construction

the benefits of the pension system, whose central part represent the so-called.

the reduction of the border.



-----------------------------------------------------------------------------------------

Year 2003 2004 2005 2006 2007 2008 2009

-----------------------------------------------------------------------------------------

The first 7 400 7 500 8 400 9 100 9 600 10 000 10 500

reduction

the boundaries of the

-----------------------------------------------------------------------------------------

in% of average approximately 45 44.1 41.9 44.7 45.4 44.6 43.0

wages

-----------------------------------------------------------------------------------------

The other 17 900 19 200 20 500 21 800 23 300 24 800 27 000

reduction

the boundaries of the

-----------------------------------------------------------------------------------------

in% of average approx. 117.4 106.7 107.4 109.0 108.7 108.2 106.6

wages

-----------------------------------------------------------------------------------------



70. As a result of reducing the boundaries of the relevant for calculating the pension decreases with

increasing earnings this session is the amount of earnings. With the exception of the years

2005 and 2006, the first reducing the border increased more slowly than the average

wage, so narrowing the (relative to the average wage) band of earnings,

for the amount of pensions are counted fully. The second reduction boundaries

grew in the period 2003 to 2008 a little faster (by 3.4 percentage points)

than the first reduction of the boundary. The result was that the more spread

(absolute and relative) of band earnings that are for the amount of

income counted 30%, than the zone in which the earnings are counted

for the amount of a pension fully and that affects the amount of all pensions. These trends

were reflected in the reduction of the level of the newly granted pensions (their relationships

the salary) in 2004 and again in 2006 (see the cited message

The Ministry of labour and Social Affairs).



71. The Constitutional Court must, therefore, conclude that the legislation is made by the

the contested provisions of section 15 of the Act No 155/1995 Coll. (in particular by

reducing borders) creates a situation where participants of the pension system

contributing to the triple amount than participant contributing the amount

calculated from the average wage is granted a pension in-relatively-less than

half of the amount. Statistical data shows that about 30% of the

policy holders exceeds the other in the calculation of pension benefits reduction threshold

(the first reducing the border while about 95% exceeds the insured persons). It is therefore

clearly, the legislation in order to ensure adequate material

the security of all participants of the pension insurance scheme does not provide parts

insured persons reasonable physical security, reflecting in a detectable extent

the principle of zásluhovosti, thus fulfilling the social function of the stimulation

policy.



Replacement rates will decline-the principle of zásluhovosti



72. Despite a considerable diversity of pension systems in the various countries

(in the sense of how to finance and principles into the design of pensions

screening) it is possible, at least for the illustration indicate the replacement rates will decline in

the basic pension scheme selected European countries which were

provided by the Ministry of labour and Social Affairs.



-------------------------------------------------------------------------------------

State times the individual income

0.5 0.75 1.5 2 2.5 1

-------------------------------------------------------------------------------------

FINLAND 90.7 78.8 78.8 79.2 78.3 79.3

ITALY 89.3 88.8 88.4 89.1 88 89

CROATIA 66.7 63.1 61.6 59.7 59.6 58.9

ESTONIA 59.9 60.6 60.9 61.3 61.5 61.7

The NETHERLANDS 82.5 88.2 84.1 85.8 83.8 82.8

BELGIUM 82.7 63.8 62.8 50.6 40.6 34.2

IRELAND 63 47 36.6 27.4 21.9 18.3

NORWAY 85.5 73.1 65.1 58.2 50.1 42.8

DENMARK 68 95.6 54.1 42.5 35.5 30.8

SWITZERLAND 53 41.4 34.3 71.4 68.9 67.3

KINGDOM 78.4 57.7 47.6 38.2 29.8 24.5

-------------------------------------------------------------------------------------



73. Although replacement rates will decline in individual countries with regard to the

the nature of the system and with regard to the projected rate of solidarity

different is, for them, a common trend in recent years resulting from

the European recommendations. A large part of the country or directed to the reduction reduces

contributions to the national insurance scheme as in the first pillar

the pension system and establishes or increases payments to the remaining pillars.

In particular, in the case of the third pillar allows for this trend to strengthen the principle of

zásluhovosti pension scheme (that is, in favour of high-income

groups). From a group of these countries it can create, for example, Germany,

also in (koncipovaném) an intermediate system since 2002

part of the national insurance scheme is redirected to other pillars (State

organised funds). Indeed, then followed the German example and

Slovakia, which is based on the same bases as the pension system

Czech Republic. One of the main themes in the Slovak pension changes

the system has been possible and to strengthen the principle of zásluhovosti (cf. quote

from the explanatory memorandum to the Act: "



Reign sociálnom poistení Bill is about primeranej zákonom miere

solidarity and zásluhovosti, because I think primeranej miere tieto two

princípy musia byť balanced and effects are applied to people's love všetkým

that prispievajú to the system.

“). Moreover, it is necessary to point out that in many countries of the European Union

There are in addition to the general pension scheme a separate legal

pension adjustment of certain professional groups, in which the

they reflect not only the risk and complexity of certain criteria of employment

(employees who work in the health conditions of loading,

Security and armed forces), but also the requirement of independence

the exercise of the profession (civil servants, judges). In these

legislation is so even this form of application of the constitutional principle of

equality (uneven can not be edited straight) clearly reflected

the principle of zásluhovosti of the pension system.



74. The Constitutional Court in assessing the reasonableness of all relevant

component of the pension system (i.e. including the principle zásluhovosti)

into account the opinion of the experts, which is focused on this issue over the long term

engaged, and may in this respect to refer to the conclusions of the so-called. Bezděkovy

the Commission, when assessing the degree of zásluhovosti of the pension system

came to similar conclusions, which have been cited from the explanatory memorandum to the

the Slovak law: "the analysis confirmed that the current system is

financially unsustainable in the long term, and generates annual

deficits of 4 to 5% of GDP. This result is in accordance with the conclusions of the

earlier analyses carried out. Now the calculations but also show that


the current system is also inefficient mikroekonomicky. It is characterized by

strong income redistribution, which leads to high náhradovým conditions

for low-income individuals and low náhradovým ratio for an individual with

higher than average incomes. The insurance system elements are suppressed when

relatively high insurance rates. High redistribution can

cause: (i) the significant decline in the living standards of people with

higher than the average income in the transition from work to retirement, (ii)

This transition may be painful, especially for the middle class, whose

income range only just above average salary and that is

due to the high premium rate, limiting the scope for private savings

could not provide at the age from its own resources.



One of the insights gained from the analysis of the specified variant of the pension reform

is the fact that the strengthening of the zásluhovosti of the State pension system

There is not enough space. Measures of increasing relatively pension

výšepříjmovým subjects would lead to a dramatic increase of the pension

system, and therefore to deepen the already strong tendency to deficits.

An alternative option is to finance the relative increase in the future

výšepříjmových people by reducing the ratio of redistribution within the pension

the system. Therefore take such measures relatively reducing the amounts of newly

allocated pensions for people with below-average income.



Political decisions should be in accordance with economic principles and

It should take into account the default state of the Czech pension system. Today's

the system is financially sustainable in the long term. Exhibits a very high level of

income solidarity. So is his own very high volume of this

solidarity due to the high contribution rates. The system is mezigeneračně

unfair and its financing is not diversified. Pension system

must be significantly revised. Parametrically The rate of receipt of solidarity is in

today's system is high. You can leave it at this level, which eliminates the

the risk of poverty for vulnerable groups of the population. At the same time, however, will be

Act negatively on the labour market and motivation of citizens to pay high insurance premiums

in an egalitarian system. Therefore, we consider it appropriate to reduce the amount of

income solidarity in the Government pillar. ".



75. in the Actuarial report on the social security of the Ministry of

labour and Social Affairs

(http://www.mpsv.cz/files/clanky/5886/zprava_2008_cz.pdf) States:

"It is appropriate to complement the Parametric changes to reform towards

diversification of the system, and to the diversification of both on the revenue side, and

the expenses system, which should lead to the strengthening of the security of reasonable

income in old age. Reform should lead to strengthening differentiation

pensions at medium and higher income groups. Any strengthening of the

equivalence of income is determined by the possibilities of reducing the level of pensions for lower

income groups. Room for differentiation of pensions is the difference between

the minimum pension and the income recognized average. Options

differentiation of income also depends on the level of the ceiling of premiums, which

in a way, determines the extent to which has to be dealt with in the differentiation system

the basic pension insurance. When a relatively low ceiling

premiums will be rather complementary schemes task differentiation, and vice versa

at a high ceiling or its absence must be dealt with in the system

the basic pension insurance.



Increase of equivalence, in maintaining the level of the total cost of the system and

existing protection against the risk of poverty in old age, it should be

achieved at medium and higher income groups at the cost of strengthening the

levelling of the income of the lower income groups. This can be achieved

for example. the combination of the equivalent system with minimum income when part of the

the insurance premium is going to cover the minimum pension and the rest of the

an equivalent schema. Another possibility might be a combination of certain forms of

of equal income with an equivalent scheme, when claims in an equivalent

scheme are obtained only from a certain level of income. To set the level of

income is collected by the insurance only to schema of equal income and above

This level is part of the premium directed to an equivalent schema.

Both options would allow for the involvement of the funded components

funding. ".



76. The experts but also to assess the extent of the kind zásluhovosti

projected pension contributions primarily through the prism of economic

the impacts (i.e., in particular with regard to the long-term sustainability of the system), which

However, sidesteps constitutionally understood the principle of equality. The conclusions of experts

However, it is clear indication of disruption of the principle of equality

individuals and groups as participants in the pension insurance, (which is

subject to the fulfilment of the basic features of social policy as a whole and

Consequently the proper functioning of the pension system, in which the

These features reflect). Part of the conclusions of experts suggests that the

the only way to strengthen the principle of zásluhovosti is not necessarily the only

the requirement to increase the financial resources of the system.



The constitutional conformity of the contested provisions



77. the Constitutional Court in its case-law formulated in terms of a review

the constitutionality of statutory social security schemes. In finding SP. zn. PL.

TC 12/94 of 12 April. 4. the 1995 (N 20/3 SbNU 123; 92/1995 Sb.)

that "in all existing social security systems are in

varying proportions represented by the principle of solidarity and equivalence. Each system

social security carries an advantage or disadvantage

certain social groups, depending on if it is preferable rather aspect

solidarity or preferred the principle of equivalence. This adjustment is

reserved for legislators, which cannot proceed arbitrarily, but when

determination of preferences must take account of the reference public values. In

the area, which was the subject of the assessment in the area of economic

legislation, the legislature has a far wider area than in the laws,

directly touch on fundamental human rights and freedoms. ...

The Constitutional Court could not identify with the statement contained in the proposal, that the

beneficiaries of old-age pension insurance paid them in any group, the

you contribute, not consideration ' and that, therefore, this is a hidden tax,

which they are in conflict with the provisions stored. ".



78. the Court has confirmed the terms Outlined in other findings, in particular in the

matters kept under SP. zn. PL. ÚS 14/02 of 4 January. 6.2003 (N 82/30

SbNU 263; 207/2003 Coll.), SP. zn. PL. ÚS 1/08 of 20 May. 5.2008 (N

91/49 SbNU 273; 251/2008 Coll.) -"In the award SP. zn. PL. ÚS 12/94-albeit with

It was a social security-the Constitutional Court stated that the

whether the preferred aspect of solidarity or preferred

the principle of equivalence, it is reserved for lawmakers, which cannot proceed

arbitrarily, but must be taken into account when setting the preferences to the reference

public values. "-and SP. zn. II. TC 348/04 of 9 June. 6.2005 (N

120/37 SbNU 525)-"the Constitutional Court in its finding, SP. zn. PL. ÚS 12/94

He said that even in the field of social security when the application

insurance is a legal Institute of insurance, for it reflects the legal

a situation in which the citizen carries its risks for consideration to another entity and

This body assumes this risk and is committed to a specific implementation. From

the insurance relationship, even as a public service, therefore, that when

the conditions on the part of the insured person resulting from the law corresponds to the

pension obligation to the other party, such transactions in the pension insurance

provide. ".



79. From the following set out lines depart nor in finding pl. ÚS 2/08 (see

above), in which the social rights, said: "Their conceptual character is

the fact that they do not have an unconditional nature and it is possible for them to seek

only within the limits of the laws (article 41, paragraph 1, of the Charter). This provision gives the

the power to lay down specific conditions for the realization of the lawmakers of the social

rights. Legal implementation shall not be in conflict with the constitutional principles,

in other words, the relevant laws may not constitutionally guaranteed social rights

to deny or cancel. In the implementation of constitutional modifications enshrined in the Charter,

the legislature must control the article. 4 (4). 4 of the Charter, according to which when

the application of the provisions on limits of fundamental rights and freedoms must be investigated

their substance and meaning. With social rights can be stated that their

the summary is just the fact that they are not, unlike for example. from

fundamental rights and freedoms, directly enforceable on the basis of the Charter. Their

parochialism is buying legal implementation, that is, of course,

at the same time the condition of a particular realization of individual rights. ".



80. Disentující Holländer, Malenovský, judges Cepl, Cermak, Güttler,

Mucha and Walk in a different opinion to the award SP. zn. PL. ÚS 14/02

from day 4. 6.2003 (N 82/30 SbNU 263; 207/2003 Coll.) are also logged in

in the thesis expressed in the report in the matter of TechCrunch.com. PL. ÚS 12/94 in which the Court

stated that it is the duty of the legislator to transparently express ratio

components of solidarity and equivalence in the social insurance system

(including health insurance), provided that this distribution may not


be any. In the case of the opposite, IE. the absence of element equivalence,

the Institute in question loses its legal nature, ceases to be an insurance

and take the nature of the tax. ". Then draw from the above the following

the logical consequence: "from the article. 31 of the Charter, in conjunction with article. 41 and article. 4 (4). 4

The Charter, therefore, for the insured person follows the fundamental right to a transparent

the legislature specified components of the equivalence in the public health

insurance, to the extent that still preserves the character of the legal

Institute of insurance and does not change the tax it. ".



81. From the case-law of the Constitutional Court outlined can be generalized in relation

the constitutional entrenchment of the social rights of the following argument: according to the first of the

one is for the review of constitutionality of laws containing social adjustment

rights given narrower scope than is the case for fundamental rights according to the head of the other,

the third and the fifth Instrument, the space is defined by the provisions of the article. 41

paragraph. 1 and article. 4 (4). 4 of the Charter. The thesis of the second is the ban (exclusion)

arbitrariness in their adaptation (article 1 and article 3, paragraph 1, of the Charter), and theses

the third is the need for legal provisions, social rights (article 41 (1)

Of the Charter). Join the first and the second argument is the fundamental starting point and then for

a review of the constitutionality of § 15 of Act No 155/1995 Coll., i.e.. It is the maximum, according to the

which of the article. 30 paragraph 2. 1 of the Charter in conjunction with article. 41 and article. 4 (4). 4

Of the Charter, as well as from article. 1 and article. 3 (2). 1 of the Charter for the insured person follows

the fundamental right to a transparent component specified by the legislature

equivalence (proportionality) in the public pension, health and

health insurance, to the extent that still preserves the nature

Insurance Law Institute and do not change it in the tax.



82. the relationship between the individual and the whole (society of which it forms part)

reflected in a democratic society in the "voltage" of the values of Justice and

freedom. Further, in particular in connection with the restoration of "questions

the social "in the 19th century. and 20. century, opens the question of the relation of social

Justice and the acceptable extent of institutional activities

restricting freedom. Basic reasonableness in this context is

individual loads (injury) at the expense of public goods. In the present

stuff this issue reflected in determining the rate of acceptance of inequality

between entities with respect to the inequality of their income, the insurance

the amount of the pension insurance and pensions.



83. the term of the constitutional prohibition of arbitrariness in determining the rights and obligations

entities is the constitutional principle of equality. Summary of previous case-law

The Constitutional Court of the rights arising from it, represents the find SP. zn. PL.

TC 6/05 of 13 April. 12.2005 (N 226/39 SbNU 389; 531/2005 Coll.). The constitutional

in it, the Court referred to its extensive and settled case-law, in which

formulated in terms of the Constitution equality [see category assessment

above all, find SP. zn. PL. ÚS 16/93 of 24 June 1993. 5. the 1994 (N 25/1 SbNU

189; 131/1994 Coll.), finding SP. zn. PL. ÚS 36/93 of 17 February. 5. the 1994 (N

24/1 SbNU 175; 132/1994 Coll.), finding SP. zn. PL. ÚS 4/95 of 7 July. 6.

1995 (N 29/3 SbNU 209; 168/1995 Coll.), finding SP. zn. PL. ÚS 5/95 (1)

8.11. 1995 (N 74/4 SbNU 205; 6/1996 Coll.), finding SP. zn. PL. ÚS 9/95 of

28 June 1999. 2. the 1996 (N 16/5 SbNU 107; 108/1996 Coll.), finding SP. zn. Pl. ÚS

33/96 (1) 4. 6.1997 (N 67/8 SbNU 163; 185/1997 Coll.), finding SP. zn.

PL. ÚS 15/02 dated June 21. 1.2003 (N 11/29 SbNU 79; 40/2003 Coll.), find

SP. zn. PL. ÚS 33/03 of 20 December 2002. 10.2004 (N 151/35 SbNU 109; 584/2004

Coll.), finding SP. zn. PL. ÚS 47/04 of 8 May. 3.2005 (N 47/36 SbNU 495;

181/2005 Coll.)]. In understanding the constitutional principle of equality, in particular

aligned with the conclusion expressed by the Constitutional Court of CZECHOSLOVAKIA (find SP. zn. PL.

TC 22/92, a collection of resolutions and of the findings of the Constitutional Court of the CSFR, finding no 11,

page 37, declared in the amount of 96/1992 Sb.). The Constitutional Court of CZECHOSLOVAKIA in it he conceived

equality as a category of a relative, which requires the removal of

unjustified differences. The principle of equality in the rights should therefore be

understand the way that legal distinction in the access to certain rights not

be the result of arbitrary power, it does not follow, however, the conclusion that each had to

be granted any right. The content of the principle of equality by the Constitutional Court

in the field of constitutional law, the concept shifted the aspects of differentiation

bodies and rights. The first considers the exclusion aspect of arbitrariness.

The second consideration when assessing the unconstitutionality of the legislation

the founding of the inequality is his concern to one of the fundamental

rights and freedoms. In other words, the Constitutional Court in its case-law

interprets the constitutional principle of equality in the sense of incidental and

neakcesorické equality. Certain legislation that favors one

a group or category of persons from other, cannot therefore be without further

marked as violating the principle of equality. The legislature has some room to

the consideration whether such preferential treatment will mandate. Must ensure

to favouring access was based on objective and reasonable

the reasons for (a legitimate objective of the legislature) and that between this objective and

the means to achieve it (the legal benefits) existed the relationship of proportionality

(see for instance judgments of the European Court of human rights in matters of

Abdulaziz, Cabales and Balkandali of 1985, section 72; Lithgow of 1986, section

177; Inze from 1987, § 41).



84. In the case of collision of parts of the public and get at the fundamental rights, the constitutional

the Court used a different structure the principle of proportionality (already tested and

a collision of fundamental rights derived from the principle of equality with the other rights,

or the public good) than the one that represents the command to optimize the

[find SP. zn. PL. ÚS 4/94 of 12 April. 10.1994 (N 46/2 SbNU 57;

214/1994 Coll.), finding SP. zn. PL. ÚS 41/02 of 28 October 1999. 1.2004 (N 10/32

SbNU 61; 98/2004 Sb.)]. This alternative policy structure

of proportionality would be can be called the exclusion of extreme

disproporcionality. This was in particular the case of a review of the constitutionality of the statutory

adjustments of tax, fee, or. other similar statutory compulsory

benefits (in which the statutory compulsory insurance), as well as

cash penalties [find SP. zn. PL. ÚS 3/02 of 13 April. 8.2002 (N

105/27 SbNU 177; 405/2002 Coll.), finding SP. zn. PL. ÚS 12/03 of 10 June 1999.

3.2004 (N 37/32 SbNU 367; 300/2004 Coll.), finding SP. zn. PL. ÚS 7/03 of

on 18 July 2005. 8.2004 (N 113/34 165 SbNU; 512/2004 Sb.)].



85. From the maxim in those findings can be outlined for the constitutional review

the link between the level of income, the amount of the premiums to the pension insurance and the amount of

pensions to be drawn the following conclusions: from the constitutional principle of separation of powers (article 2

paragraph. 1 of the Constitution), as well as of the constitutional definition of the legislative power (article 15

paragraph. 1 of the Constitution) for the legislature passes a wide scope for decisions about

the relationship of the above premiums to the pension insurance and the extent of solidarity

manifesting in the degree of inequality between the amount of income, insurance premiums and

pensions. Legislature responsible for the consequences of this decision

political responsibility. However, it is the premium to the pension insurance

public mandatory fulfilment of the State's cash, and therefore the intervention in

securities of the substrate, and thus the title of the statutory body,

without the fulfillment of other conditions, does not constitute a prejudice in the constitutional order

the ownership position protected by art. 11 of the Charter and article. 1 Additional

Protocol to the Convention on the protection of human rights and fundamental freedoms [see also

SP. zn. PL. ÚS 12/94 of 12 April. 4. the 1995 (N 20/3 SbNU 123; 92/1995

SB.)].



86. the constitutional review of the adequacy of the binding between the amount of earnings, contributions

the amount of the pension insurance and pensions includes the assessment of compliance with the

technique resulting from the constitutional principle of equality, both neakcesorické

(article 1 of the Charter). arising from the exclusion requirement of arbitrariness when

distinguishing between entities and rights, as well as incidental to the extent defined in the article.

3 (2). 1 of the Charter. Assessment of the neakcesorické equality depends on the

review of the links between the legislature and the legislative instrument chosen

its intended purpose. For the constitutional conformity legislation under consideration

in terms of neakcesorické inequality is sufficient, if the rated

classification in some rational relationship to the purpose of the Act, i.e. If he can

some way to achieve this purpose.



87. In finding SP. zn. PL. ÚS 7/03 (see above) to the fulfillment of conditions

neakcesorické inequalities, the Constitutional Court ruled: "If the purpose of modulation

premium rates to ensure its performance depending on the structure

claims and if the data contained in the comments

the party follows the worst claims in the field of mining and

mining industry, cannot be other than the difference in the rates of insurance provided for in

Annex No 2 of Decree No. 125/1993 Coll., as amended,

Mark as corresponding with the party to the proceedings as indicated to

the legislation in question. For these circumstances cannot regard the opposition

the applicant concerning unconstitutional inequality contested legal

Regulation. ". And conversely, it follows that the unconstitutionality of the statutory

editing of neakcesorické inequality is determined by the absence of a relationship

between legislative means and his avowed (intended)

the purpose of.



88. According to the explanatory memorandum to the Government a draft law on pension insurance

"the relationship of the average old-age pension to average net salary in the current


time (i.e. in 1995) reaches 56%. It was only after the increase of income of pensioners

of supplementary pension schemes in the perspective of 10 years or more can be with regard to the

the possibility of a more pronounced differentiation of income from pension insurance under the

the individual wishes of the citizens in the basic system, gradually reducing the

differentiation of pensions by the amount of earnings and the number of years of work. ".



89. An illustrative propočtem of the relation of average earnings and educational

old-age pension may be made to the data, according to which a staff member with a

tv approx. 50% of the average wage would have to gross income replacement rates

accounted for approximately 88% (approx. 9 EUR), for employees whose income is 100%

approximately 42% of the average wage (approx. 10 EUR), for employees whose income is 200%

the average wage of about 29% ($ 14,000) and for employee with income 300%

about 15% of the average wage (approx. 15 500 CZK).



90. If it was achieved the second of the purposes of the Act on pension insurance, i.e..

reduction of differentiation of income by the amount of the earnings, but not to

fulfill the purpose of the first, i.e.. open space differentiation of pensions. According to the

the Czech Statistical Office information concerning pension

insurance: "... still low awareness of the role that you can

play in the future, this form of collateral in old age for a large portion of the United

of the population. In 2004, they saved an average of less than a month people 397

Crowns, in 2001 it was 348. Even though their incomes grow,

pension funds more send-pension rights be suspended

only 2.2% of its monthly average gross salary and this proportion is even a year

Since decreases (in 1996 amounted to 3.2%). "

(http://www.czso.cz/csu/csu.nsf/informace/ckta130905.doc).



91. The legislative tools to help you achieve the second of the above

the purposes of the statutory social security schemes, i.e.. differentiation of pensions

ensuring social solidarity, are necessarily linked to the legal

adjusting social security, specifically, then by

maximum bases for payment of premiums by law No.

261/2007 Coll., which was newly modified section 15a of Act No. 589/1992 Coll., on the

social security and a contribution to State policy

employment. This was after an interval of 12 years after the entry into force of the Act on the

Pension Insurance Act created the legislative premises for proportional

consistency between the purposes of social solidarity and differentiation with regard to the amount of

income and insurance premiums for pension insurance.



92. Law No. 362/2009 Coll., amending certain laws in the

the draft law on the State budget of the Czech Republic for the year

2010, the legislative means for extreme

disproporcionalitu between legal and it reduces, respectively.

in its consequences. Under the new provisions laid down by section 15b

Act No. 589/1992 Coll. for the period from 1 January 2005. January 2010 until 31 December 2006. December 2010

is the maximum assessment base for premium payments pursuant to § 15a

paragraph. 1 and 5 of the Act, the amount of DEM dvaasedmdesátinásobku

the average wage. Explanatory memorandum (. 917) in this context, the

States: "the increase of the maximum assessment base for insurance premiums for the year

2010 from equalling the 72násobek average salary ... is reflected in the direct debit order

social security contributions and contributions to the State policy

employment in the range of 4 billion. EUR ... The aim of this proposal is to increase

the revenue of the State budget. "



93. From the outlined the purpose of the new legislation the maximum

bases for pension insurance premiums accrue

two consequences. The first one falls on the assessment of the relevance of the neakcesorické

inequality in the review of the constitutionality of section 15 of the Act on pension insurance.

From the development of the legislation can be inferred from which this in

the period to 1. in January 2008, as well as 1. January 2010 lacked the link between

intended (nivelizací according to the law on pension income

insurance and their real differentiation in pension system

supplementary insurance) and the elected legislative means (by adjusting the rates

insurance and its maximum assessment base). Consequences second

turns out but also on an assessment of the incidental inequalities. If its subject

an assessment of the limits beyond which the public required cash transactions

individual State does not constitute a pension insurance premiums already,

but the tax, then this conclusion follows from the explanatory memorandum to the Government

a draft law amending certain laws in connection with the proposal

the law on the State budget of the Czech Republic for 2010, in which the Government

absolute sincerity reduction of the maximum assessment base is considered

as a source of "increasing the revenue of the State budget", which is the purpose of the tax. In addition, the

that conclusion is justified and the curve expressing the relationship between the

the amount of the premiums to the pension insurance and the amount of the retirement pension, in which

extremely disproporcionálně breaks the link between the two

parameters. In the absence of extreme disproporcionalitu redukujícího

the moment, which in compliance with foreign laws-see e.g..

adjustment of pension insurance in Germany-is to be found in the real maximum

determined on the basis of payment of the insurance premium, you cannot clear the

the contested legal provisions, also a violation of the principle of incidental

inequality.



94. in assessing the legislation, IE. the law, which performs basic

the right to adequate material security, the Constitutional Court came to the conclusion that

structures referred to in section 15, dealing with two reduction in border

the existing rates for the existence of a system of contributions into the pension insurance

without an effective "capping", creating a significant disproportion between the amount of

contribution to the insurance scheme, the amount of income and the amount of the pension awarded

benefits in respect of insured persons, which violates the provisions of article. 1 and article. 3 (2).

1 of the Charter. In addition to this design hitting the Executive procedures according to

the provisions of § 107 para. 2 Act No 155/1995 Coll., on the basis of

the Government (in terms of the operational nature of the desired way) to increase the so-called.

the reduction of the border, but the legislature has delegated according to the current legal

Edit the Government permission to modify the amount of the reduction without borders

necessary limits or criteria, which in the earlier legislation

neabsentovala. Meanwhile, the Constitutional Court could not depart from

the fact that the whole complex structure of the pension scheme is so

non-transparent, that it is for their addressees of the de facto lack of clarity;

for the majority of insured persons are thus calculated the amount of the pension benefits of becoming

neverifikovatelnou [cf. different opinion on finding SP. zn. Pl. ÚS

14/02 (see above)].



95. In the review of the problems of the pension system, part of which is

the impugned legislation was based on the Constitutional Court from its top cited

the case law which does not deviate from the approaches of foreign constitutional courts

in the field of social rights, and was it solely to the plane of the rights

constitutional. Custom design of the pension scheme leaves the constitutional

the Court fully to lawmakers, which suggests a broad area to the implementation

the social rights enshrined in the Charter, while the Constitutional Court defines

the only negative, uncrossable boundary, IE. can (positively)

determine or prejudge any quantifiable. Similarly,

approach to the review of the methodology in the matter of social reforms.

the law of "Hartz IV", the Federal Constitutional Court (decision of 9 April 2003. 2.2010)

who also noted that the freedom of the scope of the legislature

corresponds to the reserved check and review the simple rights of the parties

The Federal Constitutional Court.



96. the Constitutional Court States that it is not his job to assess the accuracy of the

(suitability of) the structure of benefits, pension insurance, however, is its

the obligation to examine whether the law chosen by the legislator doing

meet kautelám laid down in the Charter, in other words, whether this

Constructs a constitutionally compliant. The criterion of constitutional uniformity is

"reasonableness" of the consequences of the chosen structure, when on the one hand

limiting the corrective principle of zásluhovosti represents an imperative

(incidental and neakcesorické) of equality and on the other hand is then the

corrective "reasonableness" of the minimum tangible security, thus not only

in terms of the Elimination of poverty, but also ensure a decent standard of living

for lower-income of the insured person.



97. The Constitutional Court is not to evaluate the chosen model of the pension

aspects of the political or economic system (within the meaning of



de lege lata

), or model the optimum pension system (in the sense of reflection



de lege ferenda

). His choice and parameters are, indeed, for many years the subject of

political and technical discussions related to the (more or less consensually

perceived threats to the long-term financial sustainability of the) existing

system with regard to demographic developments. Under these professional

and political debates will have to take into account all the social and

economic aspects of legal regulation of the pension system, which from the top

these reasons could not take account of the Constitutional Court. On the basis of their

the review of the Constitutional Court, however, stresses that the existence of a wide range of


pension systems and ways of construction of retirement benefits is to be

Choose the option which will be reflected all the principles

social policy, as well as the pension scheme, which will be

respect constitutional principles and fulfil the provisions of article. 30

paragraph. 1, art. 1 and article. 3 (2). 1 of the Charter, and at the same time within the meaning of the provisions of the

article. 4 (4). 4 of the Charter to save the essence of these fundamental rights.



98. For the above reasons, the Constitutional Court of the proposal of the regional court in

Ostrava, Czech Republic on the abolition of section 15 of the Act No 155/1995 Coll. agreed and this

provisions set aside.



99. with regard to the complexity of the issues and on the forthcoming reform of the

the pension system, the Constitutional Court postponed the enforcement of its decision

30. 9.2011 that provision remains in the zrušované period

applicable.



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the decision of the judges of the plenum have been Jan

Musil and Jiří Nykodým.



* Note. Red: a collection of findings and resolutions of the Constitutional Court, volume 49,

find no 73, p. 85, declared under no. 166/2008 Sb.