On behalf of the Republic
Constitutional Court decided under ref. Nos. Pl. US 55/13 of 12 May 2015
plenary Court composed of the Chairman Pavel Rychetsky and judges
Louis David, Jaroslav FENYK, John Philip Vlasta Formánková, Vladimir
crust Thomas Lichovník, Jan Musil, Vladimir Sládečka, Catherine
Šimáčková, Adalbert Šimíček, Milady Tomkova (rapporteur) and George
Zemanek on the draft Regional court in Hradec Kralove application under Article
. 95 para. 2 of the Constitution of the Czech Republic to repeal § 41 paragraph. 1 of Law no.
435/2004 Coll., On employment, as amended by Act no. 367/2011 Coll., As
participation of the Chamber of Deputies and the Senate Czech Republic as
parties and the Ombudsman as the intervener
Proposal to repeal § 41 paragraph. 1 of Act no. 435/2004 Coll., On employment,
amended by Act no. 367/2011 Coll., Is rejected.
First Constitutional Court on 10. 12. 2013 received a petition from the Regional Court in Hradec Kralove
(hereinafter "petitioner") filed under Art. 95 para. 2
Constitution of the Czech Republic (hereinafter "Constitution") in connection with the provisions of §
64 par. 3 of Act no. 182/1993 Coll., on the Constitutional court, as amended
amended (hereinafter the "law on the Constitutional court") to annul §
41 paragraph. 1 of the Act no. 435/2004 Coll., on employment, as amended by Act no. 367/2011 Coll
. (hereinafter referred to as the "contested provision").
Second The petitioner filed a proposal in connection with its decision-making activities;
As the competent court in the administrative judiciary discussed below sp.
Brand. 28 Ad 6/2013 MM claimant's action against the decision of the Ministry
Labour and Social Affairs (hereinafter the "Ministry") ref. No.
2012 / 16971-421 dated 16. 4. 2012, upholding the decision
Labour Office of the Czech Republic (hereinafter the "Labour Office") -
regional branch in Hradec Králové of 13. 2. 2012 not to grant aid in unemployment MM
Third The petitioner stated that in that case concluded MM
with his employer, who was Czech Republic -
Office of Government Representation in Property Affairs, local offices Hradec Kralove, working
temporary employment, from 1. 10. 2008 to 30. 9. 2009. duration
employment has been repeated changes to employment contracts
extended until 31. 1. 27. 12. 2011. From 2010 to 2012 he was 9. 2. MM
incapacity, during which he said already 31 first
2011 ended employment contract for a definite period. Requests for support in MM
unemployment of 13. 2. 2012, the competent labor office and failed
decided not to grant unemployment benefits.
Determine the legal qualification was yet to § 39 paragraph. 1 point. a) in connection with §
41 of Act no. 435/2004 Coll., on employment, as amended
amended (hereinafter the "Employment Act"), as MM in the decisive period of 2 years
before inclusion in the register of job seekers gained
period of pension insurance according to § 11 par. 1 point. ) and
paragraph. 2 of Act no. 155/1995 Coll., On Pension Insurance, as amended
amended (hereinafter the "Pension Insurance Act") only
a length of 11 months and 19 days, although the Employment Act requires
purposes of granting unemployment insurance period (
employment or other gainful activity or offsetting substitute employment)
in the decisive period of at least 12 months. The previous period of employment (from
first 10. 2008 to 12. 2. 2010) could not be taken into consideration since not fall into
vesting period of 2 years prior to enrollment in the register of job seekers
. Decision of the authority of First Instance also confirmed the ministry
as the administrative body of appeal. The final decision of the Ministry of
16th 4. 2012 attacked the plaintiff brought an action under § 65 par. 1 of Law no.
150/2002 Coll., The Administrative Procedure Code.
Fourth The petitioner stayed the proceedings and referred to the Constitutional Court a petition pursuant to Article
. 95 para. 2 of the Constitution in conjunction with § 64 para. 3 of the
Constitutional Court to annul § 41 paragraph. 1 of the Employment Act, as amended
Act no. 367/2011 Coll.
Fifth According to the petitioner the current wording of the contested provision of the
employment as enshrined by law no. 367/2011 Coll., Amending Act No.
. 435/2004 Coll., On employment, as amended, and more
Related laws, "denied the legitimate expectations of the plaintiff to provide adequate financial security
form of support for employment,
whose amount would be reflected quite rightly and the amount of income the claimant
achieved." Offeror in relation to
alleged unconstitutionality of the above-mentioned provisions presented this to the Constitutional court following arguments.
First, described the legislation in force in the adoption of Act no. 367/2011 Coll.
Which amended the Employment Act and introduced among other things, the petitioner
contested rules, the vesting period in which the applicant has a job
gain for pension insurance, so that it shortened from three
to two years. According to the petitioner that has been introduced into the Czech legal order
discrimination against persons who were employed in the work
for a fixed period, for the duration of the relationship became unable to work
and their employment was terminated during the temporary | || incapacity, the origin, course or duration could affect
6th The petitioner in this regard said that the new legislation
introduced by Law no. 367/2011 Coll. with effect from 1. 1. 2012 broke
conceptual and logical relationship with § 26 and 27 of Law no. 187/2006 Coll., on
Sickness Insurance, as amended (hereinafter the "Act on || | sickness insurance "), which allow you to recognize the temporary inability to work and receive
while sick in principle for a maximum of two years
. If the applicant for unemployment benefits and
employed pension insurance before the onset of incapacity
previous job for 12 months (ie. 1 year)
previous maximum period of temporary incapacity with entitlement to payment of sickness, | || fulfilled by the previous regulations the legal conditions for granting the aid
unemployment. Claimant's argument conclude by saying that
interruption of the conceptual and logical correlation may happen that
decisive period specified in § 41 paragraph. 1 of the Employment Act will
relate exclusively to the period when the applicant for employment he could not be employed nor actively
is not interested in a new job and look for him, and for objective reasons
7th The petitioner in this context stressed unconstitutional discriminatory
element of the contested provisions of the Employment Act because the employee
employment for an indefinite period, unless it is recognized temporarily unable to work
and if this inability deliberately did not incur or
none if this failure as a direct consequence of drunkenness
employee or abuse of drugs or falls according to § 53 par. 1
point. a) Act no. 262/2006 Coll., the Labour Code, as amended by Act no. 365/2011 Coll
., to the legal regime of the protection period in which the ban applies
dismissal by an employer, and it is not possible the petitioner
contested provision constituted an obstacle to the granting of the corresponding
material security. Additionally, the employee is employed for an indefinite period
also protected by § 53 par. 2 of the Labour Code, which provides:
'When given notice to the employee before the beginning of the protection period so that
the notice period should expire the protection period, protection period to
notice period; employment ends before the expiry
remainder of the notice period after the end of the protection period, unless
employee shall notify the employer that the extension of the employment
lasts. "In contrast, employees with a fixed-term contract expires
expiry and give him temporary incapacity
hinders the search and finding a new job, and due to the contested provisions
may not be entitled to unemployment benefits (from
failure to meet the conditions for obtaining the required period of pension insurance).
8th The petitioner also pointed to § 39 par. 2 of the Labour Code, which
states: "The duration of employment for a definite period between the same
Contracting Parties shall not exceed 3 years from the date of first
employment for a fixed period It can be repeated more than twice.
The repetition of employment for a definite period is also considered and its extension
... ". It shows that the employment relationship of fixed
can take up to 9 years. This, according to the petitioner suggests that in working
fixed-term contracts are drifters, but in many cases, vice versa
"Model workers" draining the state budget taxes. The contested provision
According to the petitioner, in practice, means that if such
employee sick for over a year and his employment shall cease
time, does not realize is even an element of proportionality, ie.
Adequate financial security relative to length of employment and income levels, but
such security is not realized at all, although employee working
9 years both certainly legitimately expected.
9th The petitioner also pointed out that the contested provisions and it is based
legal regime of the Employment Act is not the only existing
access to relevant issues in the legal order of the Czech Republic, referring to § 5, paragraph
. 2 point. g) Pension Insurance Act by which time
temporary incapacity, which originated at the time of employment
or withdrawal period for the purposes of pension insurance, considered
insurance period [Ed. Constitutional Court: duration of temporary work incapacity
under defined conditions considered in the pension insurance
during replacement - cf. § 5 para. 1 point. u) in connection with § 12 para. 1
Pension Insurance Act as in force at 1. 1. 2012].
10th Finally, the petitioner mentioned the initiative of a group of MPs who,
aware of the shortcomings of the contested provision, tabled in Parliament
proposal to change § 41 paragraph. 3 of the Employment Act, which
to the provision in question put in the letter g), which reads
contents copied text of § 5 para. 2 point. g) Pension Insurance Act.
Petitioner for clarification, adding that the Chamber of Deputies
proposed an amendment that would eliminate inequality and the aforementioned legal impediment
not caused by the inability to obtain insurance period
to meet the legal conditions required by the Employment Act for granting aid || | unemployment at its 52nd meeting, held on 20 3. 2013, mostly
rejected by one vote.
11th The petitioner concluded its substantive arguments summary that
he believes the contested provisions negate the principle of legitimate expectations
Mr. MM to provide adequate material security
when would that extra before Act no. 367/2011 Coll.
fulfilled the conditions for granting unemployment benefits. Provisions under
petitioner's opinion, does not respect the logical consistency with the provisions
other legislation and discriminates against persons working
fixed-term contracts. The petitioner acknowledged that a weaker legal protection
employees in employment for a fixed period is legitimate, however
expressed the view that it should not be based on facts that can affect
natural person (not caused by the formation of temporary incapacity || | and its duration). The petitioner said that "lives in a glasshouse" and
perceives that change in the contested provisions already brought the Act no. 367/2011 Coll
., Is guided by the intention to motivate people to actively search
job and and efforts to save public funds.
This intention, however, according to the petitioners, "should not and can not be superior to the legitimate expectations
persons under the same conditions (job performance) and at the same
Legal Events (creation of temporary incapacity and its duration
) receive, respectively. receive with effect from 1
1st 2012 to the different legal status ... ".
Expression of Deputies and the Senate, the Government, the Ombudsman
Ministry of Labour and Social Affairs and the Czech Statistical Office
12th Within the meaning of § 42 para. 4 and § 69 par. 1 of the Constitutional Court
sent to the Constitutional Court for the annulment of the contested provisions
participants and interveners, and also in accordance with § 48 para. 2 in connection with § || | 49 paragraph. 1 of the Constitutional court asked for the views
Ministry of Labour and social Affairs and the communication and provision of cooperation
Czech Statistical Office.
Assembly of Deputies of the Czech Parliament
13th Deputies through its chairman in his statement told
that the present draft law no. 367/2011 Coll. the government proposal. In its explanatory memorandum
government wrote that is compatible with both the Constitution and
particular Articles 2 and 4 of the Charter of Fundamental Rights and Freedoms (mostly
"Charter") that respects the general principles of constitutional order
Czech Republic and is not inconsistent with the findings of the Constitutional court and that it is also
Compatible with international treaties by which the Czech Republic
binding and does not conflict with legal acts of the European Union, jurisprudence
judicial authorities of the European Union, the general legal principles of European Union law
nor legislative intentions and
draft regulations of the European Union.
14th Amendment of the contested provisions of § 41 paragraph. 1 of the Employment Act
government in the explanatory memorandum stated that modifying the vesting period for
assessing claims for unemployment benefits and aid for retraining
of the last 3 years to 2 years
before inclusion in the register of job seekers will zoom legislation
vesting period customary adjustments in other European countries.
The aim of this legislation is to encourage job seekers to increase
own ability to find and keep jobs.
15th Furthermore, the expression described in the legislative process and was
stated that the law was approved by the necessary majority of deputies in the Chamber of Deputies
. After his rejection by the Senate of Deputies
bill again discussed and approved the votes of 108 deputies.
Law was delivered to the President on 9. 11. 2011, which rejected it on 22. 11. 2011
signed. The approved bill was delivered to the Prime Minister
signature on 28. 11. 2011. The Act was published in the Collection of Laws in part 128
under No. 367/2011 Coll.
16th Deputies concluded its statement by saying that
legislative assembly acted in the belief that the law is in conformity with the Constitution and
Czech law. It is up to the Constitutional Court to evaluate
constitutionality of the Act and issue the appropriate decision.
Statement of the Senate of the Czech Republic
17th Senate President first drew attention to the fact that in the context of
changes that were to Czech law reflected in
within the Act no. 367/2011 Coll., Amending Act no. 435/2004 Coll.
on employment, as amended, and other related laws
, the Senate expressed the Constitutional court has twice [in the case
under file. Nos. Pl. US 1/12 dated 27. 11. 2012 (N 195/67 SbNU 333;
437/2012 Coll.) And in case no. Nos. Pl. US 52/13 of 9. 9.
2014 (219/2014 Coll.)], And the Senate's statement will therefore largely
18th Senate President in his statement, the sum
course of the legislative process. He said that the Senate discussed the bill in question within the bounds of constitutionally prescribed jurisdiction
constitutional manner and the bill
dismissed on 13. 10. 2011. The Senate's concerns did not relate to the contested provisions
. In conclusion of his statement, the Chairman of the Senate left
assessing the constitutionality of the contested provision, the administration entirely to the discretion of the Constitutional Court
19th Ombudsman (hereinafter referred to as "protector"), which entered into
proceedings as an intervener in its statement
concurred with the opinion of the petitioner regarding the alleged unconstitutionality of the present
repeal provision. In doing so, he said that in his practice meets
repeated "absurd impact of this legislation on the cases of persons after
long-term incapacity", as stated and the accompanying "Selected
casuistry Ombudsman's investigation."
20th Shortening the reference period, the Defender adversely hit the
employees who according to the Health Insurance Act was
temporary incapacity in trade within 7 days after termination of employment, or
. just prior to termination of employment and lasted one year or longer (even
only a few days). This time is also the time of retirement insurance.
Defender pointed out that - unlike the regulation of pension insurance
- for the purpose of entitlement to unemployment benefit period
temporary work incapacity is not taken into account. To get the support it must be
meet for pension insurance employment or other gainful activities
, at least for 12 months in the last 2 years ago
inclusion in the register of job seekers. In practice, according
protector is sufficient that the applicant for unemployment
immediately prior to inclusion in the register of job seekers
temporary incapacity for 366 days (while the law allows
length of the period of temporary disability 380 calendar days, which may be
Extended by up to 350 days), and already he is not eligible for support
unemployment. Due to the shorter length of the vesting period of 3 years to 2 years remain
these jobseekers without support
unemployment even though they often had long worked and led away
21st According to the Defender concept arose as a result of the contested provision
alogická situation where job seekers
Referred to the provision of the benefits of the system of assistance in material need, but without
often in material need were, and so without unemployment may
material need to get vice versa. Therefore, the Protector considers that the current
legislation denies the right to ensure adequate tangible collateral
state job loss (Art. 26 paragraph. 3 and Art. 30 paragraph. 1
Charter of Fundamental Rights and Freedoms) because, in its current form is not attached to
health insurance system, and thus fundamentally contradicts the legitimate expectations
applicants. The obligation to pay the premium in these cases
remained intact, but jobseekers not eligible for support
. The Defender also pointed to the fact that it is impossible to completely deny insurance principle
doubt that any social security scheme entails
benefit of certain social groups, depending if preferred
the viewpoint of solidarity or favored the principle of equivalence.
Although this adjustment is reserved to the legislature, he can not act arbitrarily,
but in setting preferences must be taken into account with respect to the public
22nd Defender also expressed the belief that the contested provisions
not stand the test of reasonableness, and pointed out that already in its
Summary Report for 2012, pp. 19, recommended the Chamber of Deputies
eliminate undesirable consequence of shortening the vesting period
for assessing entitlement to unemployment benefits for the long-term
receiving sickness benefits, either by adding more spare time employment in
according to § 41 paragraph. 3 of the employment Act, or any other suitable method
(eg. by the introduction of removing hardness, etc.).
23rd The government through its chairman at the request of the statement
found not to exercise their rights arising from § 69 paragraph
. 2 of the Law on the Constitutional Court to intervene. Yet
"form of amicus curiae brief," the prime minister said that although the government has
considers that the contested provisions of the Act, respectively.
it set the length of the vesting period is constitutional, the government intends to increasingly
accentuate the principles of solidarity and responsibility.
Therefore requested the Minister of Labour and Social Affairs, "so into the draft amendment to the Act on Employment
(deadline of July 2014)
embodied the legal framework contained in the previous term denied Assembly Print No.
. 911 ", which supplements the equivalent periods and the temporary inability to work
, and thus resolving the situation, which is due to submit a proposal,
which is the subject of this proceeding.
Statement of the Ministry of Labour and Social Affairs
24th The Ministry in its statement addressed to the Minister of Labour and Social Affairs has proposed
administration petitioner rejected. At the beginning
cited the wording of the contested provisions and amendments regarding the purposes
monitored by the legislator referred to the explanatory memorandum to the bill
no. 367/2011 Coll., Which stated that the change "will zoom
legal treatment of the vesting period the usual adjustments in other European countries", while
arguments used examples Slovakia, Slovenia, Poland and Latvia
. According to the explanatory report, the main objective of the proposed amendment
to "motivate job seekers to increase their own activities during
finding and keeping a job."
25th Expressing also addressed the negative opinion of the Ministry of
2013, the petitioner mentioned (see paragraph 10 of the judgment)
deputies' bill to amend the Employment Act.
Primarily the Ministry stated that in his view, led to unequal access
when assessing entitlement to unemployment benefit, as would an applicant for employment
registered at labor offices, which would ill within the protection period
7 days after termination of employment should be counted for entitlement to
Unemployment benefits for temporary incapacity as
spare time employment, job seekers registered with the Labour Office, which would
ill after this deadline will not. The Ministry in its
arguments in its opinion of 2013 also stated that the rejection
unemployment does not endanger individuals, respectively.
his household to social exclusion, because if they "find themselves in material
need are (his) state-provided benefits in material distress or
26th The Ministry also stated that it disagrees with the petitioner that
contested provision is in conflict with the constitutional order, mainly from
following reasons. The Ministry, in accordance with the then
Legislator who established the contested provision in the legislation to continue
believes that "to shorten the vesting period is to motivate job seekers
to increase their own activities to find and keep
occupation. "the extension of the reference period is considered as unsystematic
solution, since the change would have been relevant only to selected segment
addressees of the employment Act, namely those jobseekers who would
after the employment relationship or service
become temporarily unable to work.
27th Finally, the Ministry, in its arguments said the possibility that
inequality condition occurs when entitlement to support
unemployment as a result of the contested provision, but with the proviso that
it applies only in cases where there is a temporary form
inability to work there for the duration of employment.
28th Despite the explicit request of the original Judge-Rapporteur,
Ministry did not comment on the information communicated by the Prime Minister regarding the intentions
preparation of the government's draft amendment to the Employment Act (see paragraph 23).
Observations of the Czech Statistical Office
29th During the proceedings, the Constitutional Court came to the conclusion that, given the subject
management is desirable to obtain at least a framework
statistics on the percentage of employment contracts of limited duration in the Czech Republic
on total employment in the Czech Republic. The judge
Rapporteur therefore turned on the basis of § 48 par. 2 and § 49 para. 1
Law on the Constitutional Court on the Czech Statistical Office with a request to cooperate
. Czech Statistical Office told the Constitutional Court that it does not
records of employment in the Czech Republic nor does
data from the records of other state institutions, which would cover the distribution
employment contracts for fixed-term contracts and indefinite.
Czech Statistical Office, however, the Constitutional Court gave the estimate
about the economic positions of bodies that obtains through interviewers
network in households in the sample respondents through "
Sample Labour Force Survey" grossed up to the whole population.
30th Judge Rapporteur in this case was originally
in accordance with the applicable work schedule designed Judge Radovan Suchanek. After
was his proposal at a closed plenary session on 5. 11. 2014 received, diagnosed
Constitutional Court chairman Pavel Rychetsky according to § 55 of the Law on the Constitutional Court
The affected provisions of the Employment Act
31st The assessment of the compliance with the constitutional provisions of § 41 paragraph
. 1 of the Employment Act, which reads as follows:
"(1) The decisive period for assessing rights to the
unemployment and retraining allowance is the last two years before
inclusion in the register of job seekers."
32nd Formally perfect proposal was submitted by the Regional Court in Hradec Kralove
under Art. 95 para. 2 of the Constitution and § 64 par. 3 of the Constitutional Court. The
consideration of the Constitutional Court and the relevant terms of admissible.
33rd The Constitutional Court notes that, according to settled case-law of the Constitutional Court
not be fundamentally tackle the proposal novelizujícímu
legal provision, since such legislation does not generally
separate legal existence; There gaining up as part of the revised legislation
[see. eg. resolution file. Nos. Pl. US 25/2000 dated 15. 8. 2000 (U 27/19
SbNU 271) resolution file. Nos. Pl. US 26/13 of 5. 8. 2014 (both available on http://nalus.usoud.cz
34th Said does not mean that the claim against the amendment
law or part thereof (as in this case) could not be submitted to the Constitutional Court
substantive review whatsoever. The exception allowing such
review the constitutionality verification procedure for the adoption of amending legislation
[see. eg. Finding sp. Nos. Pl. US 77/06 of 15 second
2007 (N 30/44 SbNU 349; 37/2007 Coll.)], Then it's a situation where they are attacked
transitional provisions of the amending legislation [cf..
Example. Finding sp. Nos. Pl. US 6/13 of 2. 4. 2013 (N 49/69 SbNU 31;
35th Therefore the Constitutional Court to verify the constitutionality accented
admission procedure and the competence of the body which issued the contested provision, and also
Act no. 367/2011 Coll. like the legislation that the legal assessment
things fundamentally changed the wording and also implicitly
semantic content of the contested provision, in a plane monitoring the overall coherence
regulation of the legal institute.
Terms of locus standi of the petitioner
36th According to Art. 95 para. 2 of the Constitution in conjunction with § 64 para. 3 of the
Constitutional Court, the court is entitled to submit a proposal to repeal a law or its individual provisions
to be applied in the context of its decision
activity, if there is a conclusion to their conflict with the constitutional order
37th Basic requirements for standing summarized the Constitutional Court in order
sp. Nos. Pl. US 37/10 dated 18. 12. 2012 (available at
http: //nalus.usoud.cz), which stated, inter alia: "16th Before
Constitutional Court accedes to the substantive assessment of the proposal pursuant to Art. 87. 1
point. a) of the Constitution, he is obliged to examine whether it meets all the legal requirements
required and whether all the conditions given its discussion
provided by Act no. 182/1993 Coll., on the Constitutional Court, as amended
, (hereinafter, the Constitutional court Act ").
According to § 64 par. 3 of the Constitutional Court to annul the law
or its individual provisions is also authorized to submit
court in connection with its decision-making activities under Art. 95 para. 2 of the Constitution.
According to Art. 95 para. 2 of the Constitution applies that occurs if the court concludes that a law
which should be applied in resolving a matter is inconsistent with the constitutional order,
submit the matter to the Constitutional Court. 17. The Constitutional Court must first deal
question of whether to satisfy the condition set out in Article 95 para. 2
Constitution, ie. Whether the petitioner alleged inconsistency with the constitutional order
concerns bill, which is to be used in solutions
cases brought before the Regional court in Hradec Kralove, as they come when it concluded that
this condition is not fulfilled, there would petitioner to file
locus standi, respectively. proposal has been submitted, someone apparently unauthorized
'as normalizes the provisions of § 43 para. 1 point. c)
Law on the Constitutional Court. 18. In effect, the resolution of the Constitutional Court. Ref.
Pl. US 39/2000 dated 23. 10. 2000 [resolution file. Nos. Pl. US 39/2000
on 23. 10. 2000 (U 39/20 SbNU 353), available in http://nalus.usoud.cz]
is a condition of the standing court pronounced the Art. 95 para.
2 of the Constitution, to call for the repeal of the Act directed against it, which is to be
in resolving the matter ', fulfilled, if it is a law, respectively.
its individual provisions, the application has to be immediate ... '
eventually, it is necessary the unavoidable application, and not just hypothetical
use, respectively. Other broader context ... '[cf. also finding
sp. Nos. Pl. US 20/05 of 28. 2. 2006 (N 47/40 SbNU 389;
252/2006 Coll.), Available in http://nalus.usoud.cz]. Of the purpose and meaning (concrete)
review of the constitutionality of laws, then it follows that the law, which is to be
in resolving the matter 'is only one (resp. Its provisions), which interferes
fact to achieve the desired (constitutionally conforming)
result; If it was then removed, the result would be ahead
these proceedings else. "
38th The Constitutional Court principles of locus standi in the case the court also dealt
eg. In resolution file. Nos. Pl. US 34/11 of 3. 4. 2012
resolution file. Nos. Pl. US 30/09 of 2. 4. 2013 or judgment file. Nos. Pl.
US 49/10 of 28. 1. 2014 (44/2014 Sb.).
39th As already stated in paragraph 2 of the judgment, the petitioner filed a petition to annul the contested provisions
in connection with its decision
activities, where a competent court in the administrative judiciary
Discussed below sp. Ref. 28 Ad 6/2013 claimant's action against MM
decision of the Ministry of Labour and Social Affairs, ref. no. 2012 / 16971-421 of
16 4. 2012, upholding the decision of the Labour Office Czech
Republic - regional branch in Hradec Králové of 13. 2. 2012
denial of unemployment MM
applicable to the legal evaluation of the matter after the substantive, among other things
contested provisions to be applied inevitably. This is also due
locus standi of the court to file a petition for its cancellation.
Description of the legislative procedure for adopting the contested provisions of the Act
40th According to § 68 para. 2 of Act no. 182/1993 Coll., As amended by Act no.
48/2002 Coll., The Constitutional Court in the context of supervision of the constitutionality of norms
reviewing the contested provision (resp. Legal
rules of which the provision is included) with the constitutional order of the three basic aspects
. The first is the existence of the powers and scope
authority which issued the contested law, the second is to keep
constitutionally prescribed procedures in adopting standards and is the third aspect
its own content, ie. Its content consistent with the constitutional order.
In the last term, therefore, a review of the merits. This provides a logical sequence
41st Of parliamentary publications and stenographic reports and statements
President of the Chamber of Deputies and the Senate chairman was found that
government submitted a bill Chamber of Deputies on 25. 5. 2011.
Chamber of Deputies approved the bill on 9th 9. 2011. Of the present
143 deputies voted for the bill 84 were against 58 lawmakers.
On 19 9. 2011 Deputies referred the bill to the Senate, which discussed it
19 10, 2011 and rejected it. Of the 58 senators present
refusal voted 35 against was 18. Deputies
refer the draft law again acted on 3-6 11. 2011 and remained at her
approved version of the bill. From the present
179 deputies voted for the original version of the bill 108 to 69.
Act was delivered to the President on 9. 11. 2011, and that it
signed on 22. 11. 2011. The law was approved
delivered for signature to the Prime Minister on 28. 11. 2011. the Act was published in the Collection of laws on
6. 12. 2011 in the amount of no. 128 under no. 367/2011 Coll.
42nd Based on the review of the above information, the Constitutional Court finds that
Act no. 367/2011 Coll., Amending the Employment Act, as amended
contested provision was therefore adopted after a properly conducted
legislative process, signed by the appropriate constitutional and promulgated in the Collection of laws
ie. that the contested provision was in terms of powers and competence
taken to constitutionally designated authorities in a constitutional manner
Terms of reference for the evaluation of the proposal
The case law of the Constitutional Court in the matter of social rights -
basic assumptions and the question of legitimate expectations
43rd According to Italian legal philosopher Norberto Bobbio was
recognition of human rights in three stages: first recognized a) the right to liberty, ie
. laws that limit the power of the state, leaving individuals and groups
sphere of freedom from the State; the second phase was defended b) political rights
understand that freedom only negatively as non-interference, but as a positive
(public) autonomy; and finally was proclaimed c) social rights
which emphasize the value of well-being, not only formal equality.
These rights can be called by Bobbie freedoms through and through
State (see Bobbio, N. L'eta dei Diritti. Torino: Einaudi, p. 26 and
seq.). Even more widespread than Bobbiova but genealogy mentioning
three generations of human rights, the first of which are civil and political rights,
kind of economic, social and cultural rights, and the third called.
Rights solidarity. To the right of the second generation are selected while other ways
institutionalization than traditional rights of the first generation. Differences
rights of the first generation and second generation rights in several decisions
touched by the Constitutional Court, although explicitly concept of "generation rights"
did not operate [see. already finding sp. Nos. Pl. US 32/95 of 3. 4. 1996 (N
26/5 SbNU 215; 112/1996 Coll.), In which the Constitutional Court pointed out, among other things.
Differences on regulation "of economic, social and cultural rights" which are either
instantiated in the Charter itself, or their concretization
Left to the law; in its judgment. Nos. Pl. US 35/95 of 10. 7. 1996 (N
64/5 SbNU 487; 206/1996 Coll.), The Constitutional Court concluded that those rights
"require for their realization interaction of other factors;
does not act immediately as the rights mentioned above ... The whole head in the fourth
a whole is dependent on achieving economic and social
state level and the associated amount of standard of living "; cf. also judgment file. Nos. Pl. US
36/11 dated 20. 6. 2013 (N 111/69 SbNU 765; 238/2013 Coll.)].
44th The dogma of rights "second generation" has contributed significantly finding
sp. Nos. Pl. US 2/08 of 23. 4. 2008 (N 73/49 SbNU 85; 166/2008 Coll.)
Which in the case of social rights pointed to their conceptual character that
"the fact that they do not unconditional in nature and can them
claimed only within the limits of law [Art. 41 paragraph. 1 of the Charter of Fundamental Rights and Freedoms
(hereinafter, the Charter ")]. This provision gives the legislature the power to
set specific conditions for realization of social rights.
Statutory implementation may not be in conflict with the constitutional principles, in other words,
relevant laws may not constitutionally guaranteed social rights to deny or nullify
. In carrying out the constitutional framework enshrined in the Charter, the legislature must follow
Art. 4 par. 4, according to which
when applying the provisions on limits of fundamental rights and freedoms must be preserved
their purpose and meaning. For social rights can state that the aggregate
limitation is precisely the fact that they are not, unlike, for example.
Of fundamental rights and freedoms, are directly enforceable under the Charter.
Their limitations is precisely the need for statutory implementation, which is of course also a precondition
specific implementation of individual rights.
53. These facts relate to the specific character of social rights that
are mainly dependent on the economic situation of the state.
Level of provision reflects not only the economic and social development of the country, but also
relationship between state and citizen, based on mutual accountability and recognition
principle of solidarity. The extent to which the principle of responsibility and solidarity
reflected in the legal order of the state, also determines the character of this
state (eg. As a social state) ... 54. In the implementation of social rights
So from the state It requires not only recognition, but also his
specific activities that will enable the realization of these rights. Filling
provided under social rights come from the state budget and
responsibility for these transactions rests wholly on the side of the state. If
become who he is and will be bound by social transactions, then you also must have
option to set specific conditions for such a transaction ... '. But that "
not deny the very existence of a particular social rights, or in its
result to exclude its implementation. Within these limits, the legislature has
relatively wide ability to adjust implementation of individual social rights
including the possibility of change. 56. ... the specific nature of social
rights in any way mean that the legislature was not bound by them.
Anchoring their existence in the Charter means that when
statutory regulation must be maintained a certain minimum standard of these social rights.
In any case, do not lead to a de facto denial of that
social rights, because it is also necessary to meet the principles set out in the Charter
. Their degree of compliance must be assessed in each individual case
realization of these rights regularization. "
45th In paragraphs 39 and 40 of its judgment no. Nos. Pl. US 31/09 of 9 1, 2013 (N 5/68
SbNU 89; 42/2013 Coll.), The Constitutional Court stated that "in its judgments
usually expressed reluctant to implement social rights enshrined in
Chapter Four of the Charter, because it is aware that the scope of social rights
(...) is limited by the capabilities of the state budget-founded results
state finances. Only under these options apply limits
the relevant articles of the Charter governing social rights.
Assessment questions effectiveness and appropriateness of statutory regulation in this area
Constitutional Court leaves it up to the legislature, in which the activities of the Constitutional Court, except
cases identified unconstitutionality can not interfere. It is about their questions
political nature. Defining element of social rights is the fact that
not unconditional in nature and can be claimed only within the confines
applicable law (Art. 41 of the Charter). This lack of direct enforceability of the
Manifests itself in need of their legal definition, which is then also the condition
concrete realization of the social rights [see
findings of the Constitutional Court. Nos. Pl. US 8/07 of 23. 3. 2010 (N 61/56 SbNU
653; 135/2010 Coll.), Sp. Nos. Pl. US 2/08 of 23. 4. 2008 (N 73/49
SbNU 85; 166/2008 Coll.)]. Although the provisions of Article 41. 1 of the Charter
allows legislators set specific conditions for realization of social
rights, their legal definition must not be in conflict with constitutional principles
other words, the laws that govern them, not constitutionally guaranteed
social rights completely deny or nullify them. As in the case
fundamental rights and freedoms directly enforceable under the Charter must
if social rights of the legislature to respect the rule contained in Article
. 4 par. 4, which states that the provisions on the limits
fundamental rights and freedoms must be preserved to their essence and meaning. "
46th The above can be summarized so that, having regard to the wording of Article. 41 paragraph. 1
Charter is to review the constitutionality of laws dealing with the regulation of social rights
given narrower scope than that of the first generation of rights [and rights || | contained in Titles III and V of the Charter - cf. Finding sp. Nos. Pl. US 8/07
of 23. 3. 2010 (N 61/56 SbNU 653; 135/2010 Coll.)], And anchoring
their existence in the Charter means (with regard to Art. 4, paragraph .
4 of the Charter), that the statutory regulation must be maintained a certain minimum standard
(ie. there is a lower limit restrictions, the essential content)
social rights. Otherwise, the specific balance of liberal and social aspects
fundamentally determined parliamentary majority [Constitutional Court therefore, in paragraph 45 of the judgment
sp. Nos. Pl. US 54/10 of 24. 4. 2012 (N 84/65 SbNU 121;
186/2012 Coll.), Stated that "the provisions of Article. 41 paragraph. 1 of the Charter, under which
rights referred to in Article . 26, Art. 27, paragraph. 4, Art. 28-31, Art. 32 paragraph.
1 and 3, Art. 33 and 35 of the Charter may be claimed only within the confines of the laws implementing these provisions
, expressing the belief framers that the adjustment
social rights is a legitimate subject of political struggles (ie.
is primarily in the hands of the legislature) and only secondarily a limited extent possible
constitutional guarantee of social rights considered as a judicial question. " ].
Deciding on a range of social rights are among the major political
questions that are primarily subject to electoral competition, and ultimately on them
therefore decided by the elected representatives in the legislature.
Social rights can in fact rank among the so-called. "Inherently controversial and debatable concepts
" (esentiallly Contested concepts), whose
deepest sense with leading companies across a stormy public debate and political discussion
. Therefore, they must be in their case the Constitutional Court
restrained against the democratic will of the legislature, which should
reflect the actual will of the company. Limits this respect are then
primarily determined by Art. 4 par. 4. In paragraph 81 of the judgment file. Ref.
Pl. US 8/07 of 23. 3. 2010 (N 61/56 SbNU 653; 135/2010 Coll.)
Then generalized the Constitutional Court bases its case-law concerning social rights
into three propositions: "In the first which is to review the constitutionality of laws containing
adaptation of social rights given narrower scope than that of the fundamental rights
according to head the second, third and fifth Charter, the space that is defined
provisions of Article. 41 paragraph. 1 and Art. 4 par. 4.
Second thesis is the ban (exclusion) arbitrariness in their treatment (Art. 1 and Art. 3
paragraph. 1 of the Charter) and the third is the thesis of the need for statutory regulation of social
rights (Art. 41 paragraph. 1 of the Charter ). "
47th In line with the case law of the Federal Constitutional Court, which represents
with regard to doctrinal sophistication important source of inspiration
it is of crucial importance for the interpretation
determine the minimum standards of the different fundamental rights of human dignity (Art. 1, paragraph. 1 || | Basic Law, respectively. Art. 1 of the Charter and also the preamble to the Constitution). Of
values of human dignity, the Federal Constitutional Court concludes constitutional
entitled to the benefits of guaranteeing human dignity
subsistence minimum, which includes "both the physical existence of man, ie food,
clothing, household equipment, shelter, heating, sanitation and health, as well as ensuring
possibility of cultivating interpersonal relationships and the minimum rate
participation in social, cultural and political life, as a man
such person exists necessarily in social ties "[cf. paragraph. 135
Judgment BVL 1 1 3 9.4 - Harz IV, dissenting opinion of Justice John
Musil to Judgment file. Nos. Pl. US 8/07; cf. similarly interpretation
Elisabeth Wagner: if it is a component of basic rights consisting in claim
filling, ie. especially in the case of social rights for which dominates
commissives obligation of the State, respectively. public authority, human dignity
mentioned as nepodkročitelná limit for the consideration of the legislature, and therefore
"when the Charter explicitly guarantees certain social
rights (...), is the responsibility of the legislature to formulate their contents, and | || range so nevykročil the bounds of the substance of the constitutional guarantee
while the minimum threshold of rights (essence and meaning) is again secured
human dignity, which is the purpose of securing rights "- see Wagner,
E. Introduction. In: E. Wagner, V. Šimíček, T. Langášek, Pospisil I., et al.
Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer CR
as 2012, p. 17. In other words, to decide on the degree of solidarity
necessary to enable individuals to their rights and freedoms as well
realistically implemented, but that is primarily the responsibility of the legislature,
however, at its discretion, subject to certain limits arising from the highest constitutional values, which is
human dignity.]. Keep in mind that "people who are able
acquire the means of her livelihood alone will not happen
burden on tax obligations in respect of certain minimum of income whose taxation would
into their ratios could reflect disproportionately
oppressively. In extreme cases, it could even affect their
right to a dignified life, and therefore with regard to Article. 30 paragraph. 2 of the Charter, according to which everyone has
who is in material need, the right to such assistance,
which is essential for basic living needs, this intervention would
just had to be compensated under the social security "[paragraph 33
judgment file. Nos. Pl. US 31/13 of 10. 7. 2014 (162/2014 Coll.)].
48th The Constitutional Court has in the past expressed about the possibility of the existence
legitimate expectation in the case of social rights. In paragraph 68 of its judgment no.
Brand. Pl. US 2/08 [that argument in this case directed (point 19)
changes to the Act no. 88/1968 Coll., On prolongation of maternity leave,
maternity benefits and child allowances from sickness insurance | || resulting in the cancellation provision of maternity benefits
single women and the abolition of entitlement to maternity benefits for job seekers
] observed that the application of this argument "is not in the area of social rights
entirely appropriate. As previously discussed, these rights are
depends mainly from the development of economic and living standard
state of the economy. In relation to a State which falls into
economic difficulties (see, recently, Russia, Argentina or Mexico)
everyone, even sebelegitimnější claim becomes illusory and damage are
basically everyone. A related question, once granted
claims', which in the case of social rights can not be taken as static.
It also demonstrates the modern history of the Czech Republic, where leftist governments have tended
various social allowances zmnožovat while
pravicověji minded governments tend opposite. But they must always move in
already indicated above the limits set by the Charter. "
49th It can, however, imagine a situation where the application
legitimate expectations in the social rights of their place. Thus, for example.
By the European Court of Human Rights ( "ECHR") is an application
legitimate expectations according to Art. 1 of the Additional Protocol to the Convention on
Protection of Human Rights and Fundamental Freedoms on social benefits, and
both contributory and non-contributory, perhaps assuming that
national law confers an individual right to social benefits (cf. paragraph 51
Grand Chamber judgment in the case of Stec and others v United Kingdom
6 . 7. 2005, no. 65731/01 and 65900/01). According to the ECHR if the amount
social benefits reduced or eliminated, it may constitute a breach of legitimate expectations
property acquisition. However, for such an intervention can not go
if the individual does not fulfill or ceases to fulfill the conditions
national law for a benefit. Thus, for example.
ECHR did not accept the legitimate expectations of the complainant in a situation where
Swedish parliament on 21 December 2000, annulled the February 5, 2001 the opportunity to get
Unemployment benefits through participation and completion of work training
after a period of six months, although the complainant job training began, but did not finish
. The ECHR noted in this context that the complainant
had to be there in the winter of 2000, aware of the amendments to the Law (cf..
Decision Bladh v. Sweden, 10. 11. 2009, no. 46125/06). The ECtHR
is also important that in a situation where some particular social benefit of the public interest
altered, which may result in a reduction
, a person's available to the general welfare, and it is not | || decisive nor that under certain circumstances they may not even reach
(cf. Brems, E. Indirect Protection of Social Rights by the European
Court of Human Rights. In: Daphne Barak-Erez and Aeyal M . Gross.
Exploring Social Rights. Between Theory and Practice. Eds. Oxford:
Hart, 2007, p. 155 et seq.).
50th Even the Constitutional Court for a condition that occurs law
estimated insured event, the mere fulfillment of other conditions for applicants
constitutes a legitimate expectation of receiving the relevant transaction.
Any change in the statutory conditions for the emergence and duration of claim
must therefore take this into account [point 263 of judgment file. Nos. Pl. US
1/12 dated 27. 11. 2012 (N 195/67 SbNU 333; 437/2012 Coll.)].
The Constitutional Court considered problematic setting a new reason
removal from the register of job seekers due to rejection
perform the public service as "acts simultaneously as an amendment to the conditions for the emergence
and duration of entitlement to unemployment benefits as this claim may arise only
evidovanému candidates (§ 39 of the employment Act).
Its effect is thus primarily a fundamental limitation claim that
expiry of two months of becoming eligible conditionally accepting any bids
. This is undoubtedly a very significant change, which may vary depending on the age
candidate who refuses the offer in question, meaning
shortening the support period of 3, 6 or even 9 months, and thus have a major negative
projection into his social situations. For that reason, therefore, raises doubts
fact that the legislature does not take into account the legitimate expectations of the parties
this insurance in respect of the vesting period and did not
appropriate transitional provisions for such changes would
created a longer timeframe "(paragraph 264). The Constitutional Court, however, will be
finding did not consider the potential seriousness of the interference in terms
principle of legal certainty or confidence in the law, but he asked the question more general, and it
whether that restriction can be accepted already with regard to the content of the
The right to adequate material security in unemployment
51st Article. 26 paragraph. 3 of the Charter enshrines the right to acquire
resources for their livelihood and right to work of those who have this right can not
no fault of their own exercise to ensure the material in a reasonable range
. Both social and economic reasons, it is necessary
minimize economic damage and personal disruption that can come
job loss brings. But it is equally important to provide the unemployed
positive incentives to become re-employed as soon as possible
. In general, the essence and purpose of the right to adequate
tangible collateral in case of impossibility to exercise the right to work,
implemented in this case by the Institute of unemployment benefits, short-term
alleviate the shortfall in revenue, which has come as a result of the law | || defined social events (ie. loss of employment). Indeed, the amount of the replaced
income usually depends on the amount of paid social benefits
. The mechanism of realization of the rights thus lies in the fact that
become unemployed temporarily in the fulfillment of the statutory conditions
provides a certain level of funding as the (objectively) came
inability to realize their constitutionally guaranteed right to receive funds for
their life needs work. Keep in mind that whoever
claim does not qualify for this support is then dependent on aid in material need
under Article. 30 paragraph. 2 of the Charter.
52nd Regularization, this right is realized primarily in support
unemployment benefits and support in retraining. The present law while
"only to those who, without any fault of their own 'not to raise resources for their livelihood
work (and are unfit for work ...). It
Are therefore able to work jobseekers seeking employment
find and did not cause the loss of previous employment. "(Cf. Wintr J.
Commentary to Art. 26 of the Charter. In: E. Wagner, V. Šimíček, T. Langášek, I
. Pospisil et al., Charter of fundamental rights and freedoms. Commentary. Praha:
Wolters Kluwer CR, as 2012, p. 586). About what (has) it is
adequate material security, decided largely lawmaker whose
discretion is not absolute. The intervention to a minimum standard of
fundamental right, according to the aforementioned Comments (cf. Ibid.)
Could occur if, if confirmed, "has been found and proven that the new legal
treatment reduces the realization of constitutionally guaranteed standard of social
benefits to disabling their practical implementation, or even their
blanket withdrawal "(see paragraph 78 of its judgment no. Nos. Pl. ÚS 2/08).
53rd To interpret the material provision of unemployment benefits pursuant to Art. 26
paragraph. 3 of the Charter, the Constitutional Court stated in paragraph 262 of the judgment file. Ref.
Pl. US 1/12 dated 27. 11. 2012 (N 195/67 SbNU 333; 437/2012 Coll.)
In which he stated that "legislators belonging to set specific way
will exercise this right realized, as well as make it possible
changes. His choice legislation but can not be de facto denial
this social right (Judgment. Nos. Pl. ÚS 2/08, paragraphs 54 and 56, also
Decision Ref. Nos. Pl. US 54/10, paragraphs 46 to 49). It must always be carried
its essence and meaning (Art. 4 par. 4). " At the same time it is true that "
entitlement to unemployment benefit is not immutable and can not exclude that it
legislature in the future will expand or limit. Any alterations are
cover both the amount of aid, so the length of the support period and the conditions under which the claim arises
or will take. It is always necessary to consider whether
statutory scope of rights, whose purpose is to ensure the physical
unemployment will continue to allow the real implementation of the
constitutionally guaranteed rights. It must also be taken into account that
said the claim is for job seekers to the condition that during the relevant period
won for pension insurance for at least 12 months after
which they had to be this insurance paid [§ 39 par. 1 point. a)
Act no. 435/2004 Coll., on employment, as amended by Act no. 382/2008 Coll
., in connection with § 11 of the Act no. 155/1995 Coll., on Pension Insurance | || amended]. "(cf. section 263 of Decision Ref. Nos. Pl. US
54th The Constitutional Court also notes that while "the lawful execution
right to adequate material security in old age, incapacity for work and loss of breadwinner
(Art. 30 paragraph. 1 of the Charter) as well as the right to health
care (Art. 31 of the Charter) is still at the statutory level
realized primarily in the system of obligatory social insurance
(pension, sickness and health) "(Wintr, J. -
repeatedly cited - see above, p. 629), is incriminated right to material support
unemployment materially ensured a compulsory contribution to state employment policy
. If the constitutional right to adequate material
security in old age, permanent or long-term incapacity for work and loss of breadwinner
implemented by the system of pension insurance,
including retirement, disability and survivors (widows, widowers and || | orphan) pensions, and sickness insurance scheme for cases
short-term incapacity to work, then it is lawful implementation of the right to adequate material
ensure that those who can not work without guilt (and
according to Art. 26, paragraph . 3 second sentence of the Charter), material support
unemployment. Material security (as referred to in Article. 26 paragraph. 3, according
Article. 30 paragraph. 1 of the Charter) constitutes a higher standard than
ensure basic living conditions (Art. 30 paragraph. 2 of the Charter). It is not however a
insurance scheme (but see the qualifications indication unemployment insurance
as in the following paragraph), which is directly Charter
required, as is the case with public insurance to free medical care
and to medical aids under Article. 31 of the Charter.
55th Although the Constitutional Court in the past nominally stated that in case
unemployment benefits in terms of an insurance scheme (paragraph 263 of its judgment no. Ref.
Pl. US 1/12) and similar indications appear also due to the systematic
Marshaling contribution to the state employment policy to '
premiums for social security "in the literature, retains
compared with classic public insurance fundamentally different characters. Firstly, in terms
her case (also) part of a national employment policy [see § 2
paragraph. 1 point. i) of the Employment Act, which provides that "
state policy of employment ... ... includes the provision of unemployment benefits and retraining
."]. Unemployment benefit is one of
kinds of "other services", which implements the right to employment (§ 10
Employment Act). The law also lays down two conditions for its implementation
ie. That the individual who a) wants and can work and b) a work
bidding [like Art. 20 of the European Code of Social Security
(published as an announcement of the Ministry of Foreign case no. 90/2001 Coll.
ms) and Art. 20 of the ILO Convention no. 102 on minimum Standards of social security
(published as the Communication of the Ministry of foreign Affairs
no. 461/1991 Coll.) states that "
contingency covered shall include suspension of earnings, as defined by national laws
regulations, due to inability to obtain suitable employment if it is
protected person is capable of, and willing to work."]. For those who are
example. a long time sick, it is assumed that the opportunity to work with them
not given, and therefore in their case proceeding under other rules
and material provision are dealt with through other social subsystem.
56th Although unemployment can undoubtedly the broader concept of social protection
classify, it can not yet be identified with classical
benefits and services of social security (or.
Containing mandatory social insurance schemes). Unemployment benefit is not
Czech Republic introduced as part of social insurance:
this matter is - under the form of government employment policy -
part of labor law in its broadest sense. Legislation employment
then one of the three major areas - in addition to individual and collective labor law
- falling under labor law (cf.. Bělina, and
M. et al., Labor Law. Praha: CH Beck, 2014 , p. 3 et seq.), respectively.
Entire complex national employment policy. This incorporation into
labor law is not amended nor a condition of obtaining one year
pension insurance through employment [§ 39 par. 1 point. a) Employment Act
], since it is the only technical terms -
indeed in this Act and previous legislation, the Employment
changed several times - a requirement for one year of employment
certain quality and scope within a defined period before the onset of unemployment.
Social events that support solves the loss of income from employment
due to inability to obtain suitable employment, for people who can work
. Minimum standard for unemployment benefits
not provide benefits for the duration of unemployment (Art. 24 of the Convention
ILO. 102 on Minimum Standards of Social Security and
Art. 21 of the European Code of Social Security);
Keep "nepodkročitelný" state of dignity (see paragraph 47) must therefore at greater unemployment
57th Though they generally talk about unemployment security
as one of the branches of the Czech system of social security rights, there are also
opinions that the contribution to the state employment policy with its
character (rather than premiums) coming tax ( cf. Vesely, J., et al.
social security Law. Praha: Linde, 2013, p. 40). It should then
consequences that the general rule is that a tax can not be
require specific consideration, while insurance includes compensation in the event of an insured event
[however, as it warned the Constitutional Court
paragraph 41 of its judgment no. Nos. Pl. US 29/08 of 21. 4. 2009 (N 89/53 SbNU 125;
181/2009 Coll.), Although the tax constitutes such a service to the public budget
characterized neúčelovostí and non-equivalence, ie. Tax
imposes a unilateral duty without entitlement to a specific taxpayer
consideration by the state, the non-equivalence of taxes is not absolute, since
through that paying taxes is a contribution to creating
material base for the provision of public goods may be that
Catered for the interests of the taxpayer]. Most often support
unemployment called for a limited time (ie. Short)
social benefits (like eg. Vesely, J. - repeatedly cited -
see above, p. 248). The difference between state funding and social benefits
financing through social insurance can then be
"express so that in the state of citizen pays state taxes
flowing into state coffers and from then on the basis of the State || | (parliament) approved budget citizen paid under the terms
tent law social security benefits. On the contrary, the social insurance
citizen compulsory cover himself for future insured
(social) events or citizen insures someone else (employer, state
) "(Tröster, P. et al., Social Security Law. Prague :
CH Beck, 2013, p. 77 et seq.).
Vesting period - general considerations
'58. The petitioner, in his statement of claim, filing for annulment of the provisions of §
41 paragraph. 1 of the Employment Act, as amended by Act no. 367/2011 Coll., As from 1
1, 2012 there was a change in the length of the vesting period for | || assessing entitlement to unemployment benefits and retraining
(new text that reads: "the decisive period for the assessment
claims for unemployment benefits and retraining allowances are
last two years prior to inclusion in the register of applicants seekers. ").
Although the petitioner considered the challenged amendment as ill-conceived solutions
lawless logical relationship of various provisions of law
social security, petit its proposal was directed not to any steps by
his opinion coherent provisions, but only to the provisions
stanovujícímu (resp. zkracujícímu) vesting period. This also
substantially defined the possibility of the scope of review by the Constitutional Court
even more relevance to the petitioner's argument
decision of this case. The Constitutional Court is bound by the petition, had initially
examine the nature of the contested provision, because of him, all his
other considerations can unfold. Social security (insurance)
is quite common and is typically used by institutions that monitor the "working life"
before the emergence of social events. It is natural, if it serves those systems
ensure a certain standard of living at a time when not
no fault of their own means of subsistence to get their own work, taking
meaning and purpose of these systems is to replace lost employment income.
Conventional tool dependence entitled to benefits previously acquired
insurance period (minimum period of affiliation to the system)
usually expressed in systems of unemployment
time payment of premiums or period of employment or a certain level of earnings
clearly defined time period before the emergence of social events. His character
proposal seeks to review the length (range) period in which
my last job (defined using
regulations on pension insurance for 12 months), which is liable to create an entitlement to support
unemployment. Although the definition of this time has a different character from the other
times (and deadlines), which the Constitutional Court has assessed
not disregard the fundamental characteristics, namely that it is a certain time-frame
(observation period) before the emergence of social events that are relevant for
entitlement. The question put to the Constitutional Court is: Is
observation period, a time-limited period of two years before
unemployment unconstitutional for a defined group of employees (here
employees working in employment for a fixed period who
spent two years in sick leave and then became unemployed
)? Although in this matter can not be applied without further
any supporting reasons for the decision of the Constitutional Court pertaining to the review
certain periods and periods of sub-constitutional law, the Constitutional Court considers
useful to recall how to set a specific time frame in the Act
sees. Generally, it should be emphasized that these temporal matters
Constitutional Court traditionally maintains a priori reticent attitude.
59th Already in its judgment. Nos. Pl. US 33/97 dated 17. 12. 1997 (N 163/9 SbNU
399; 30/1998 Coll.) The Constitutional Court on the concept of deadlines in general
stated that "the purpose of the legal institution of the deadline is to reduce entropy
(Uncertainty) in exercising rights, respectively. responsibilities, time constraints
state of uncertainty in legal relations (...)
accelerate the process of decision-making to the real attaining the desired objectives.
These reasons have led to the introduction of deadlines thousands of years ago. "The scope of constitutional review
statutory provisions establishing deadlines, the Constitutional Court defined in
judgment no. Nos. Pl. US 46/2000 dated 6. 6. 2001 (N 84/22 SbNU 205;
279/2001 Coll.), Which stated that "interference limits violates the principles of the rule of law
because it significantly extends the principle of legal certainty, which is
one of the basic requirements
contemporary democratic legal systems. The deadline can not in itself be unconstitutional. However, it may seem like this
with regard to the particular circumstances. "
60th Different situations possible unconstitutionality of the deadline, the Constitutional Court summarized the findings
sp. Nos. Pl. US 6/05 dated 13. 12. 2005 [(N 226/39 SbNU 389;
531/2005 Coll.); cf. also judgment file. Nos. Pl. US 17/09 of 1
12. 2009 (N 250/55 SbNU 415; 9/2010 Coll.)], According to which "prima facie limit without further
not show signs of unconstitutionality" and "unconstitutional deadlines
can be established only in dialogue with
specific circumstances of the matter under consideration. "in particular circumstances or contextual perspective
assessing the constitutionality of the deadline with regard to its own case law
Constitutional court ruled that: 1. inadequacy (disproportionality)
limits in relation to the limited possibilities of constitutionally guaranteed rights
(claim) or a defined time period limitation
subjective rights [eg. Finding sp. Nos. Pl. US 5/03 of 9 7. 2003
(N 109/30 SbNU 499; 211/2003 Coll.)]; Second
arbitrariness of the legislature in setting the deadline (establishing or canceling) [eg. Finding sp. Ref.
Pl. US 2/02 of 9. 3. 2004 (N 35/32 SbNU 331; 278/2004 Coll.)]; 3rd
constitutionally unacceptable inequality of two groups of subjects, which is
result of the abolition of certain statutory conditions for its application of the law unconstitutional
while this cancellation for the group of subjects
due to the expiry of the time it's due repeal
without any possibility of exercising the right to not open [eg. Finding sp. Nos. Pl. US 3/94 of 12
7th 1994 (N 38/1 SbNU 279; 164/1994 Coll.), And finding sp. Nos. Pl. US 24/97 of
day 3. 6. 1998 (N 62/11 SbNU 111; 153/1998 Coll.)].
61st In paragraph 37 of the judgment file. Nos. Pl. US 15/09 of 8 7. 2010 (N 139/58
SbNU 141; 244/2010 Coll.) Finally, the Constitutional Court stated that "
period prima facie without further does not and can not show signs | || unconstitutionality; These can then be made only, specific circumstances
'adjudicated matter, in other words, assessing the constitutionality of the deadline
is a contextual assessment' [judgment file. Nos. Pl. US 6/05 dated 13. 12.
2005 (N 226/39 SbNU 389; 531/2005 Coll.)]. These specific circumstances are
according to existing case law of the Constitutional Court, especially the inadequacy
(disproportionality) period in relation to the period limited options
exercise constitutionally guaranteed right [judgment file. Nos. Pl. US 5/03 of
9th 7. 2003 (N 109/30 SbNU 499; 211/2003 Coll.)] Or arbitrariness by the legislature
when setting the deadline (establishing or canceling) [judgment file. Nos. Pl.
US 2/02 of 9. 3. 2004 (N 35/32 SbNU 331; 278/2004 Coll.)]. "
62nd Proposals for the review of various "vesting period" the Constitutional Court
frequently called in restitution matters: for instance. In its judgment.
Brand. Pl. US 45/97 of 25. 3. 1998 (N 41/10 SbNU 277; 79/1998 Coll.)
Constitutional Court stated that "the determination of the so-called., Vesting period ', namely
its inception to date February 25, 1948, is based on reasonable and objective
reasons when the legislature was forced to clearly define the time-limit for
already in principle can not be without risk of further compensation chaining up
pending before the Munich Republic or further . "In paragraph 176 of the judgment file.
Brand. Pl. US 10/13 of 29. 5. 2013 (N 96/69 SbNU 465; 177/2013 Coll.)
, The Constitutional Court stated that "the question of the definition of so-called.
Vesting period has not - as is also apparent from existing case law of the Constitutional court
- constitutional relevance, since it is a political decision, and
his determination and not a matter of constitutional review. "
63rd In the Constitutional Court is nevertheless possible terms
contextual evaluation of the constitutionality of the deadline (see paragraph 61)
extended to the length of the vesting period, which the legislator designates as an observation
for determining the required minimum period of affiliation to the social
Security (question of arbitrariness in its determination), respectively.
appropriately to the length of the period of pension insurance in relation to the length of the vesting period
(question disproportionality deadlines). The legislature has a big
discretion as to the length of the vesting period chosen, however
not interfere with the right to adequate material provision so that it is virtually impossible
its implementation, or even to his blanket withdrawal || | (see paragraph 52). This would, however, may perhaps only if it was determined
ratio of the length of participation in pension insurance in relation to the length of the vesting period
so high that the possibility of a claim for support
exclude a substantial portion of workers population. That, however
adjudicated matter obviously can not go and no need to further review.
Constitutional Court in this context refers to the practice of other European countries, from which
shows that the Czech modification does not deviate from acceptable legal solution
(MISSOC system used for comparing social protection systems
within the European Union It gives a clear idea of how they look
legal regulation in Europe: an observational period of two years are about two-thirds
EU Member States, there are far more stringent regulation, such
. Bulgaria 1. 7. 2014 requires nine months of insurance
achieved in the 15 months before the onset of unemployment, Latvia
even in the last 12 months, but there are Member States which have observation
longer period, usually three years, but they are now a minority - France ,
Hungary, Lithuania, Slovakia, Denmark, Spain, Estonia.
It should be seen that usually are the basic conditions for entitlement to unemployment benefit
been modified in some way or possibly set
64th Period of two years before the advent of social events (ie. There
loss of earned income, which is caused by the inability to obtain suitable employment
) represents so.
Decisive period for the assessment of claims for unemployment benefits and
support for retraining. It is true that within the relevant period, the applicant for unemployment benefits
accumulate sufficient hours
spent at work (which is technically expressed legislatively-time
participation in pension insurance) amounted to a claim for support.
Condition of employment of one year certain "quality" - which is expressed
sometimes inappropriate condition of one year of pension earned on
employment [see. § 39 par. 1 point. a) Employment Act] -
is to be filled in the defined observation period before inclusion in
register of job seekers; ie. the condition of one year
particular job candidate should meet the support
previous two years prior to inclusion in the register of job seekers.
65th This condition is called. Qualifying time in the social systems
(developed countries) is a common and well anticipated by various international
documents. E.g. Art. 23 of the European Code of Social Security
anticipates collateral benefits "at least to a person protected who met
qualifying period as may be considered necessary to prevent abuse
" (similarly, see Art. 23 of the ILO Convention No work.
102 on minimum Standards of social security).
Purpose of embedding such period consists, first, first in preventing the diversion of aid
unemployment, which (partially and temporarily) replaces the income of those who
realized their right to earn their living by work, but by now
objectively (no fault of their own) can not do so, partly in the second
(legislative and technical) define whether the applicant had ever
income from work and, where appropriate, in what amount. Specific definitions
amount of unemployment presupposes definition of the term, which
is relevant in determining the applicant's income, from which then unfolds
amount of support in terms of system that binds the benefit amount for the past || | achieved income.
66th As follows from the above-cited comparative perspective (see MISSOC database
: http://www.missoc.org/), the current Czech
adjustment length of the vesting period (ie. Two years) is quite comparable with other European || | countries. If it is a ratio of the corresponding period of insurance (or similar criteria
to meet the conditions of the employment or other gainful activity
required for entitlement to unemployment benefit) for
Vesting period, as well as in other countries analogous circumstances (eg. In Germany
unemployed person must be insured in the 12 months
during the past two years, also faced a similar shift to the shorter vesting period as
in the Czech Republic). It is therefore possible to accept the argument of
explanatory memorandum to the amendment to the law that shortened the length of the vesting period
caused a certain approach to the trade arrangements in other European countries
. With regard to foreign regulation it is quite evident that
length of the vesting period is (generally) manifestly disproportionate in relation to the condition
one-year length of participation in pension insurance (ie.
12 months of employment). The new law certainly does not diminish the standard
granting unemployment benefits up towards practical
disabling its implementation or even its withdrawal blanket (it would
could occur only in a situation, should it be determined by the condition || | participation in pension insurance almost identical in length, which has a length
67th Issues that the Constitutional Court will continue to have to deal with
concern the possible arbitrariness of the legislature while anchoring the vesting period (ie.
Matter of legitimate expectations) and possible
constitutionally unacceptable inequality of two groups of subjects - workers employed on short | || fixed-term contracts.
Legitimate expectations - retrospection
68th As for the argument that the contested provisions
negate the principle of legitimate expectations of the applicant to provide adequate
material security, since the one before Act no. 367/2011 Coll
. fulfilled conditions for unemployment benefits, ie. the plaintiff
under the same conditions (job performance) and in the same legal
events (temporary inability to work and its duration)
received with effect from 1 January. 1. 2012 to the different legal status, and
in this regard is therefore a modification unconstitutional, or it could
Constitutional court affirmed.
69th The concept of legitimate expectation is possible in this case to connect with
property interest, which falls according to their content under the protection of Article 11, paragraph
. 1 of the Charter and Article 1 of the Protocol to the Convention on the Protection
Human Rights and Fundamental Freedoms concerning the right of everyone to the peaceful enjoyment of his possessions
[cf. closer Constitutional Court decision. Nos. Pl. US
9.31 of 9 1, 2013 (N 5/68 SbNU 89; 42/2013 Coll.), The finding of 1
7th 2010 sp. Nos. Pl. US 09/07 (N 132/58 SbNU 3; 242/2010 Coll.) And finally
judgment of 15. 5. 2012 sp. Nos. Pl. US 17/11 (N 102/65 SbNU 367
220/2012 Coll.)]. According to settled case law of the European Court of Human Rights is
"property" in that article
Additional Protocol to the European Convention on Human Rights,
must be interpreted as meaning that has an autonomous content which is not
limited to the ownership of tangible assets and does not depend on formal qualifications
national law (judgment of 22. 6. 2004 on complaint no. 31443/96 -
Broniowski against Poland, § 129). May therefore include both "existing possessions"
such assets, including receivables on the basis of the complainant
can argue that he has at least a "legitimate expectation" (Esperance
légitime / Legitimate expectation) to achieve efficient use || | property rights (see Case Gratzinger and Gratzingerová against the Czech Republic
from r. 2002 or thing Zvolský and Zvolská against the Czech Republic on
r. 2001). Protection under that article is not only
acquired, ie. The existing property, but also the legitimate expectations
acquisition of such property. Application of legitimate expectations is yet possible to
social benefits, both contributory and non-contributory, but only
provided that national law gives individuals the right to
social benefits (see paragraph 49).
70th As the Constitutional Court said in its judgment. Nos. Pl. US 38/04 dated 20. 6.
2006 (N 125/41 SbNU 551; 409/2006 Coll.), The legislature is required "when
amending legal regulations take into account the existing legal situation and the changes must
carried out sensitively and only to the extent necessary to achieve the objectives of regulation.
Insist on such behavior of the legislature is needed because it guarantees the stability
sphere of free conduct. The Act defines the basic structure
within which to implement the free activities. If you are uncertain boundaries
legal requirements, ie. If not respected the legitimate expectations
Based on the law, and freedom is uncertain. Therefore, protection of legitimate expectations
integral part of the rule of law (cf.. Reasonable judgment of
26th 4. 2005 sp. Ref. IV. ÚS 167/05, Collection of Decisions, Volume 37, No.
finding. 94, ...). Consideration of legitimate expectations is an indispensable dimension
legality (cf. To Rawls, J. A Theory of Justice, Prague:
Victoria Publishing, 1995, p. 145). From the command
respect the legitimate expectations arising from the existing legislation obviously not
implies a prohibition on amending the legislation. It's just that when deciding on
choosing how you change the legislature to these expectations
watched and did not ignore that addressees their norms of behavior (and choose between different alternatives
) longer adapt to the requirements of different || | content. "
71st The Constitutional Court first dealt generally changing the length of the vesting
period from three to two years. This change is considered by the Constitutional Court
generally permissible, and therefore does not compromise the legitimate expectations
applicants. Entitlement to unemployment in scope
always depends on the legislation in force and there is only the fulfillment of all legal
conditions. Individual employees must be aware that in the future
may be part of the legislature to change the terms, due
which can not rely on the permanent preservation of the existing legislation.
Institute of legitimate expectations does not protect the immutability
vesting period in the future, since the determination of the extent (and in this case
) depend at least on the state's economic situation, as well
partly also political considerations (priorities ), which can then be completely
legitimately reflected in adjustments to the organization providing support
unemployment. And if the constitutional order of the general imperative
immutability (nezhoršitelnosti) State aid (
inferred from any of the general constitutional principles) would be undermined line of argumentation
existing case-law in certain "political" nature of social | || rights, which represent only nepodkročitelnou limit
obligations arising from the constitutional principle of human dignity (see paragraph 47).
72nd The Constitutional Court also specifically dealt with the possibility to change the length
vesting period of less than two months before the new legislation.
Although a change in the length of the vesting period was two months before the end of
2011 (ie. 6. 11.) Act has been in force since December 2011, and the effectiveness
new provision has been from 1. 1. 2012 not possible without further stated
unpredictability of the changes, since it is not about a norm
that perhaps it was to adapt its conduct (see judgment no. Nos. Pl. US 38/04
a contrario). As in the case of prolonged illness, so in case
subsequent recovery and the ability to seek employment far as concerns
largely unpredictable social events with which they can not calculate
(Judgment. Nos. Pl. US 38 / 04 applicable to such recipients
legal norms, who carried out their activities freely, while their behavior
adapt to the requirements of these standards). Moreover, the very support
unemployment benefits are designed to enable temporarily mitigate the impact
job loss on the financial situation of those persons who acquire
resources for their livelihood by work, not those that were
capable of long (eg. because they were chronically ill).
The construction of the vesting period is therefore assumed that the disease will not take too long
which the Constitutional Court considers reasonable and feasible
(quite logical, though certainly there may be other legitimate alternatives
- see below case Canada), as in the case of these people does not make any sense
replacing lost income (no income from work is not lost), and furthermore
would then absent a clear methodology for its quantification. Indeed,
at a time when there was a change in legislation, the applicant could not with certainty
assume that in a few months will be able to work again and that he
search for a new job, perhaps he could "help out" in support
unemployment. Under unforeseen circumstances, this type
therefore not necessary to use the principle of legitimate expectations. Conversely it can be said that both
disease and unemployment is quite unexpected social
event (for example compared to other event likely to occur fairly
- age), and therefore not possible to expectations
Future unemployment benefits with a view to having worked for 12 months in the relevant period
apply. On the short-term social events of this type can not be
concept of legitimate expectations apply also for the reason that
applicant could not be expected to happen two months after the new arrangement
unemployed because there were equivalent alternatives, namely that
could go into disability (higher degree of disability), or he could
find work; All these options were open for him, apparently.
73rd The present case must then be distinguished also by case solved
in its judgment. Nos. Pl. US 1/12, in which the legislation touching "material
existence and actual implementation of the essential content of the constitutionally guaranteed
social right to adequate material security in unemployment benefits under Article
. 26 paragraph. 3 of the Charter that after two months, and, moreover, in some cases
without any objectively measurable, reasons
admitted elimination of job seekers from the records of these candidates with
described the consequences of the loss of adequate creature comforts " whereas in the present case
now this is only a technical legislative
construction of the vesting period, which does not escape
European standards. It was so completely permissible change
legal conditions for obtaining unemployment benefits, which unlike the case solved
in its judgment. Nos. Pl. US 1/12 did not require applicants to constitutionally problematic
obligation to take action (job seeker had to accept the offer
perform the public service, otherwise it is updated
reason for his removal from the register of job seekers). Moreover, as discussed above
(72), one located on the site analogous place
plaintiff could not due to the randomness of their situation expect that in the future
certainly meets the requirements foreseen by law.
74th That approach is, in the opinion of the Constitutional Court in accordance with the above-mentioned
ECHR case law (paragraph 49), the Constitutional Court considers
essential that applicants remained open path to the general social
benefits. At the very end, the Constitutional Court notes that these conclusions are
particularly relevant in the area of social policy, which - as aptly stated
Federal Constitutional Court - "is sensitive to restriction of freedom
(Gestaltungsfreiheit) legislator; the ever-changing conditions in the area of social policy
require to be left to legislators as possible
much freedom (cf.. BVerfGE 39, 302 ). The Federal Constitutional Court
therefore must always ensure that its jurisprudence legislators
unduly complicating the adaptation rights to the changing social and economic conditions
(cf. BVerfGE 69, 272 ). For the area of unemployment insurance
this is particularly true.
Its functioning depends on economic developments and the situation on the labor market, but also on understanding the behavior and the subjective
insured. When changing such conditions must
legislators can react quickly. Moreover, it is necessary broad creative freedom
legislature, since unemployment indemnity is not
unlike pension insurance commensurate to him (cf..
BVerfGE 51, 115 ; 72, 9  ). To assess the performance provided
therefore lacks a regulator of the equity performance, so the legislator must have other options
to the necessary alignment of "[1 BvL 29, 30, 33, 34, 36/83 (resolution
18 11 . 1986), the dissenting opinion of judge Katzenstein].
75th The ideal of equality of human beings is a constitutive part of the material
law definition of modernity, in which the inegalitarian political orders
not pass the test of legitimacy. Equal dignity of human beings is then also
argument for equality is constitutionally guaranteed rights.
Implies a fundamental right to a share of liberty, which is equal to that of all other human beings
76th Charter of Fundamental Rights and Freedoms prohibits any distinction, but
impermissible distinction is only for certain reasons or
distinction in a certain way. The prohibition of discrimination therefore does not "ban
any exclusion, but only to those that are morally objectionable
and the dignity of man." (Cf. Bobek, M. prohibition of discrimination. In:
E. Wagner, V. Šimíček T. Langášek, Pospisil I., et al.
Charter of fundamental rights and freedoms. Commentary. Praha: Wolters Kluwer CR, as
2012, p. 101). In paragraph 55 of its judgment no. Nos. Pl. US 29/08 of 21 4. 2009
(N 89/53 SbNU 125; 181/2009 Coll.) Cited the Constitutional Court adopts Judge Zupančič
ECHR, under which "all decision-making processes within
all three branches of government concerning the creation and performance of the various decisions
with respect to various situations. In this sense, discriminate "[i.e.
perceive and state differences] is not a bad thing, unless there is a specific statement
differences covered, in the words of constitutional law, so called.
problematic category, 'that is one of the criteria listed in an exhaustive
enumerated in Article 14 of the European Convention on human rights. These
problematic categories are nothing more than
exception to the general rule, which allows the use of non-problematic category
any distinguishing the decision-making process. Prohibition of discrimination with regard to a specific
difference is therefore the exception rather than the rule.
This however does not mean that discrimination was at problematic categories
strictly prohibited. In fact, discrimination is within the specified categories
allowed if they are coupled with the application of the criteria
equal protection, proportionality and rationality "(see the dissenting opinion of Judge
Boštjan Zupančič in the case against the UK Burden of
29. 4. 2008, summary judgments of the European court of human rights
6/2008, p. 319).
77th In paragraphs 50-52 resolution file. . I. ÚS 3271/13 dated 6
second in 2014 (available on http://nalus.usoud.cz) The Constitutional Court analyzed in more detail
that "Article. 3. 1 of the Charter ... applies only if the reason
different treatment of sex, race, color, language, faith and
religion, political or other opinion, national or social origin, nationality
national or ethnic minority, property, birth or other status
. ... [J] other status ... must be similar
exhaustively enumerated categories. They must thus involve some personal qualities
which usually can not control (eg. Gender, race), or it must be a
reasons resting on the passenger elections reflecting the personality traits
each of us, such as religion or political opinions. ... It might be added that
European Court of Human Rights interpreted similarly Art. 14 of the European
European Convention on Human Rights, which contains similar
exhaustive list of grounds of discrimination (see eg.
Peterka decision against the Czech Republic dated 4. 5. 2010 no.
21990/08). This does not mean that the legislature can in these situations
arbitrarily discriminate. Equality protected by Art. 1 of the Charter, no such restriction is
and affects all distinctive reasons [cf. eg.
Finding sp. Nos. Pl. US 39/01 dated 30. 10. 2002 (N 135/28 SbNU 153;
499/2002 Coll.) And resolution file. . I. ÚS 2006/12 dated 15. 1. 2014
item 17]. However, it is settled law of the Constitutional Court that such equality
according to Art. 1 of the Charter may be infringed only when it comes to
extreme inequality, or the one that meets any purpose and meaning, and it is
and of arbitrariness [see judgment. Nos. Pl. US 36/01 of 25 sixth
2002 (N 80/26 SbNU 317; 403/2002 Coll.)]. "
78th Constitutional bases its decision making on the principle of equality
Constitutional Court had to relate to the character
examination of the legal norms. The petitioner pointed out in its submission to
fact that the same facts, which can not be objectively influenced (as
creation of temporary incapacity and its duration) differently,
in a crucial way to translate into law
material security in the form of unemployment benefits in two basic forms
working relationship. In other words, in the opinion of the petitioner occurs
unjustifiable discrimination between employment relationships for a fixed term and indefinite
(indeed, before plaintiff thus argued in the lawsuit against
administrative decision). The alleged discriminatory grounds is therefore
whether the employment contract was concluded for a definite or indefinite period.
79th Came out when the Constitutional Court examined the nature of the legal norm, then
in his opinion, is not in the present case by case
direct discrimination, according to which it would be with that person is treated differently because of that
would be one of the prohibited grounds for exclusion. Conversely, construction
disputed legal norms is based on a completely neutral criterion.
The Constitutional Court therefore had to examine the question of legal norm in terms
indirect (ie. Mediated or covert) discrimination whose constitutional
Basis lies in Article. 3. 1 of the Charter.
Precondition of indirect discrimination under constitutional dogmatism that some general
legal framework that formally does not contain any prohibited discriminatory
classification, incites discrimination in its application (Bobek, M.,
Boučková, P. , Kühn, Z. Equality and discrimination. Praha: CH Beck, 2007
p. 52). The subject of indirect discrimination has a negative (resp.
Uneven) the impact of general rules, which are in general formally
fine and applied "straight". The cause is defective design standards
when an apparently neutral criterion is forbidden because of
(eg. Race, ethnicity, gender, sexual orientation, age, health
disability, religion or belief etc.) certain
group of people at a disadvantage compared to others, while the criterion is not objectively justified
legitimate aim and the means of achieving it are appropriate and necessary
(cf. ibid.). In other words, it applies in the case of indirect
discrimination has been as a criterion for differentiating criterion selected at first glance
neutral, but unduly affecting the protected group
(see Bobek, M. Non-discrimination. In: E. Wagner, V. Šimíček, T.
Langášek, Pospisil I. et al., Charter of fundamental rights and freedoms.
comment. Praha: Wolters Kluwer CR, as 2012, p. 109).
80th The Constitutional Court notes that both the legal dogmatics then eg.
Discrimination Act [Act no. 198/2009 Coll., On equal treatment and
legal means of protection against discrimination and amending certain
laws (Antidiscrimination Act) , as amended]
defined in § 3 para. 1 as indirect discrimination "such act or omission
where an apparently neutral provision, criterion or practice
is one of the reasons listed in § 2 paragraph. 3 [here
include reasons such as race, ethnicity, nationality, gender, sexual
orientation, age, disability, religion, belief or worldview
] person at a disadvantage compared to others.
Indirect discrimination is, unless that provision, criterion or practice is objectively justified
legitimate aim and the means of achieving
are appropriate and necessary. "
81st In this case, however, is not true that the chosen criterion should
discriminatory outcome for certain constitutionally protected group, as defined in Article
. 3. 1 of the Charter. The petitioner did not submit any argument that would have incriminated
Standard disproportionately fall on a specific protected
group, and even the Constitutional Court has no reason to believe that it would
so in this case maybe it was. In the present case can not be
alleged discriminatory reason not subsumed under the term "other status" within the meaning of Article
. 3. 1 of the Charter.
82nd If, in the case of indirect discrimination necessary that at first glance
neutral criterion turned out considerably stronger on a protected group
which the applicant was a member, and not only temporary employees
without further fundamentally such a group does not (protected group is in fact
defined by ethnic, gender, sexual or other characters), but the case
employee whose case was the reason (for) submission
ordinary court is largely individualized as follows
conjunction of random factors, such as the applicant's long-term health problems
in excess of one year and the November amendment of the provisions of the Act, to which
been in a situation where the applicant was still at work inability.
According to the Constitutional Court, therefore, under the unique circumstances
not be a constitutionally prohibited indirect discrimination, since already from its
constitutionally-dogmatic definition implies that not directed towards individualized
protect specific rights of any person ( cf. Fredman, S.
Discrimination Law. Oxford: Oxford University Press, 2011, p. 183).
In her case, it is not a question of individual destiny, but a
"structural" inequality and its consequences. This must therefore
about discriminatory treatment (in addition to the so-called. Protected, certain attributes
thus defined) group, not just a different treatment
individuals. Assessment of indirect discrimination is detached from
individual complainants, and therefore it would be improper
activism of the Constitutional Court to rule on the constitutional conformity of the contested legislation
Standards with regard to individualized applicant's case.
83rd As shown by the petitioners' submissions, and according to him it was not the case then
given solely on the fact that he had agreed
employment for a definite contrast to the employment of indefinite duration, but
of employment for fixed-term incapacity
lasting more than one year. It is therefore not a problem in itself closing
employment for a fixed period, but must connect to another, and it
highly unpredictable and uncertain circumstances. Therefore, the Constitutional Court
alleged discrimination employment contracts for a specified period of
compared with employment relationships of indefinite duration misleading, since
case, which concerns the applicant for the submission, there was a conjunction of several factors
(ie . the applicant for the duration of that relationship became
práceneschopným, his employment was terminated during the period of temporary incapacity
, and later the applicant was found to práceschopným).
That provision contains a neutral rule biennium, which is
same for all groups of employees, however, may turn out differently on some specific
but unpredictable situation, because
complexity of people's lives only heavily vměstnává to these statutory
conditions. Although the employment of indefinite duration may provide
higher level of protection in terms of termination of employment (employees
You can not give notice during sick leave, or if he
testimony was given before the onset of incapacity, employment
lasts for some time after its completion), one can imagine
situation where neither the existence of an employment relationship of indefinite duration in combination with
dismissal as incapacity fails
candidates for the job are entitled to unemployment benefits.
84th These conclusions can then be applied also to the arguments of the Public Defender
rights "selected case study Ombudsman's investigation" (paragraph 20)
from which one can not even infer the existence of a certain, let alone a protected group
whose existence should be reason for the Constitutional court pronouncing
rozporovaného provision is unconstitutional. Do not stand up then neither argument
that the cases can not be solved in poverty relief system (see paragraphs 55-56
). The constitutional order constitutes an interconnected structural
unit, which aims to protect the highest values of human dignity and
humanly dignified life, the choice of a particular system to keep
state of dignity, it is already a matter for the legislature. Support
unemployment benefits under Art. 26 Sec. 3 of the Charter must be guaranteed only
for people who have just lost their income from employment, since
unable to obtain suitable employment, ie. Those who have the option | || work and are willing to work, while those who have been on long term sick
, on the other hand, in principle, based on the absence of this option, and therefore
shall be governed by other rules, and their situation is then solved in || | another kind of social benefits. This can also apply to a situation where
a person regains the ability to work, but because of prolonged illness
longer fails statutory conditions (resp.
Certain period of participation in the pension insurance within the reference period), as
their incapacity lasted for more than one year.
85th In the case of social rights in general, that the Constitutional Court should not attempt to replace
rational legislator considered his own reasoning, however
could perhaps also be (maybe even more)
rational. Keep in mind that "a number of concrete rational solutions
eligible in one specific case solutions
distribution of public goods can be quite high, which is due to the very nature
výsledečnou positive obligations. The courts, however, only provide protection
subjective rights, the responsibility for choosing the method of distribution of public goods
contrary belongs legislative power. "(Cf. Boučková, P.
equality and social justice. Praha: Auditorium, 2009, p. 37 ). These conclusions
can relate eg. As well as arguments of the petitioner parties
conceptual and logical consistency of the provision with other provisions of the laws
(point 6), as well as the arguments of the Ombudsman parties
differentials between unemployment and pension insurance (point
20). Moreover, the Constitutional Court nevertheless notes that the duration of the support period in
Sickness Insurance was established historically quite generous;
It does not mean that it would be necessary this time to build
automatically equated to periods belonging to other systems (eg. in the pension insurance
also take into account any period of unemployment, etc.).
Contested norm regulating only the length of the vesting period, does not
spare time, which was the petitioner - as can be inferred from his
submission - also an eyesore (paragraph 9); substitute employment defines §
41 paragraph. 3, respectively. 2 of the Employment Act. Obviously this problem
for the petitioner was not the actual length of the vesting period, but rather
absence that would be the time of temporary incapacity, which was founded in
time employment or the withdrawal period for
unemployment benefits considered a replacement for (or that would have been applicable
extended period of time that you are not an employee of
nezávisejícího because of his willingness to work as such.
regulated in Canada). Constitutional Court refers to legislation in the Slovak Republic, where there
unemployment insurance (Act no. 461/2003 Coll., On
social insurance), while in § 104. 2 cited law stipulates that
An insured person who was at the end of business
employees employed for a fixed term included in the register of unemployed has
entitled to unemployment benefit if the last four years
prior to inclusion in the register of insured of business
employees employed for a fixed term of at least two years. It is the exception to the rule
under which the claim arises or if in the past three years
was insured for two years. For temporary employment
term is extended vesting period as lex specialis. But already
lawmakers whether to accept such, the staff employed at the time
term, or for employees temporarily unable to work because of incapacity
still more favorable treatment.
Constitutional Court overlooked that the Chamber of Deputies discusses a newspaper 296/0
amendment to the Employment Act, the government proposed that the cases of long-term incapacity
been under defined conditions considered for the purposes
unemployment benefits for spare time. This arrangement, however, has
apply only to the management of the unemployment benefits initiated after
effect of this amendment.
86th In summary, the normative content of constitutional norms Art. 26 Sec. 3 of the Charter
is further restricted by Article. 41 paragraph. 1 of the Charter because it is the right
be invoked only in the confines of the laws implementing these provisions.
Constitutionally guaranteed right under Article. 26 paragraph. 3 of the Charter can be realized through
"implementation" of the law, which stipulates specific content
this fundamental right. The legislature has a content standpoint
ensure that such a law were not affected by the nature and meaning of
fundamental rights (Art. 4 par. 4), the same is true for institutions
public authorities, which is apply and interpret. From this perspective, however
question whether the provision of unemployment benefit applicants are entitled
employment in situations where the changed length of the vesting period of three
for two years, seems not as crucial as it is the will | || legislator, under what conditions material security in such cases
provide, therefore, that somehow "favor" status
those who worked within the vesting period at a greater rate than other
. Examined the legislation does not contrary to the purpose of the constitutional
no tangible support to ensure those who no fault of their own can not
acquire the means of her livelihood by work.
87th Only as obiter dictum, however, the Constitutional Court the petitioner
draft even notes that some problems of similar nature, what
raised by the petitioner can be solved by extending the transitional provisions
amendment of the Act. The contested provision is prima facie neutral:
provides that the relevant period for assessing whether the condition has been fulfilled
one year annuity will be two years before the emergence
social events. His derogation can not deal with the adverse impacts
into a highly individualized matter, which was the basis for the petition
Constitutional Court (see paragraph 82). The Constitutional Court considers that it would have been
possible in terms of rational and socially sensitive legislator to consider
example of anchoring a one-year transitional period, which would u
Claims incurred in the first year of the effectiveness of the new legislation
alternatively have examined the fulfillment period of employment of previously existing
adjustments. However, this "deficiency" can not be considered as unconstitutional (see paragraphs 72-74
) - rather, it is about political will of the parliamentary majority or
maybe even (in) ability to imagine the consequences of treatment.
88th The Constitutional Court finds that the reasons were found to comply
proposal to the quashing of the cited provision under the law, and
proposal was rejected.
Chairman of the Constitutional Court:
JUDr. own hand