On The Proposal To Repeal § 78 Of The Pension Insurance Act

Original Language Title: ve věci návrhu na zrušení § 78 zákona o důchodovém pojištění

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Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=55139&nr=40~2F2003~20Sb.&ft=txt

40/2003 Coll.
FINDINGS


Constitutional Court
On behalf of the Czech Republic


The Constitutional Court ruled on 21 January 2003 in plenary on the proposal
Regional Court in Brno to annul § 78 of Act no. 155/1995 Coll., On pension insurance
,

Follows:

The petition is denied.
Reason


I.

On 5. 6. 2002 reached the Constitutional Court for the Regional Court in Brno, which
appellant seeks the annulment of § 78 Act no. 155/1995 Coll., On pension insurance
for its conflict with Article 1 Charter of fundamental rights and freedoms
(hereinafter the "Charter").

The petitioner pointed out in the draft of an action MF (hereinafter
"plaintiff") to review the decision of the Czech Social Security
of 5. 8. 1998 at the Regional Court in Brno under file.
Brand. 32 Ca 196/98. The petitioner came after the presentation of evidence to conclude that
to assess the condition of permanent disability plaintiff falls
provisions of § 78 of the Pension Insurance Act. However, it believes that the provision
is contrary to Article 1 of the Charter.

The petitioner points out in the first part of the proposal for legislation that
preceded the release of the Pension Insurance Act. States that the provisions
§ 25 paragraph. 3 point. c) Act no. 121/1975 Coll., on Social Security, and
§ 29 par. 2 point. c) of the Act no. 100/1988 Coll., on Social Security
, allow to recognize disability even citizens who remained
maintain the ability to exercise gainful activity, but only to
such employment, which is considered quite inadequate previous
ability of citizens and social importance of his current employment
(ie. stavovská disability). Implementing Decree no. 128/1975 Coll.
to Act no. 121/1975 Coll. In its § 19 para. 3 are defined
totally disproportionate employment as such, which is totally alien and remote
job hitherto, and not when it is sufficiently recovered earlier
individual ability, which had long ago worsening health
state, so in terms of social interests are not required to have such a disproportionate
work performed. The concept of inadequate employment
content was similarly treated in § 18 paragraph. 2
implementing decree no. 149/1988 Coll. to Act no. 100/1988 Coll. In the period from 1. 10. 1988 to 31
7th 1991 was an additional condition for recognition of the so-called.
Estates disability and decrease earnings by at least half compared with a profit, which amounted
citizen in the current job. State administration authorities issued a
implementation of the legal regulation of normative instruction that closer
define what is meant by a highly skilled employment for recognition
"estate disability" and what jobs can be in relation to those regarded as
totally disproportionate. For highly skilled employment has been reported
employment in mining underground coal or uranium mines, which was included
until at least the seventh passenger in the class III.
level of competence by the Federal Ministry of metallurgy and heavy engineering
no. 6/1982 registered in the figure 17/1982. at pp. 369, later in tariff
sixth grade by government regulation ČSFR no. 43/1992 Coll., on
setting minimum wage rates and wage benefits for
work in difficult and hazardous work environments and for work at night, and
Government Regulation no. 333/1993 Coll., on the minimum wage
tariffs and wage benefits for work in difficult and hazardous
work environments and for night work. In wholly disproportionate
then was considered work performed on the surface of classified no higher than third grade
tariff regulation cited government.

In another part of the petition, the petitioner refers to the Law on Pension Insurance
who already 'Estates' disability' and assumed existing
claims under the modified transitional provisions § 78.
The petitioner points out that this provision
protect recipients of pensions who, on 31. 12. 1995 reached the minimum age of 10 years
lower than their retirement age. In this context, it points out
explanatory memorandum to the Act, which only briefly states that it
account of the possibility of retraining and medical aspects in people
already reached the prescribed age.

The petitioner states that in assessing the conformity of § 78 of the Act on Pension Insurance
Article 1 of the Charter took into account other

Provisions of the Act that favor workers in the mining industry
compared to other groups of insured persons. Especially § 74 and 76 of this Act
fixed retirement age of miners who worked
specified period of time called. Preferred job categories to 55 years
possibly at the age of 50 (according to Government ČSFR no. 557 / 1990 Coll.
extraordinary retirement.` some miners).
General retirement age while at the date of December 31, 1995 was 60 years for men and 53-57 years for women
. With effect from 1 January 1996, this age extends
per calendar year for men by two months for women about four months, so after December 31, 2006
will reach men 62 years and for women according to the number of their
children 57 to 61 years. Raising the retirement age, however, for workers in the mining industry
whose pensionable age under the regulations in force before 1 January 1996
reached 55 or 50 years, does not apply. Already this adjustment is by
petitioner's opinion established a certain inequality among the miners, on the one hand and
other insured on the other hand, which every year
effect of the Act on Pension Insurance deepens.
The petitioner does not consider this inequality as a violation of Article 1 of the Charter, because when
setting the retirement age for different groups of beneficiaries were
account of the demands of their profession and especially the miners
damage to health and the wear rate of the organism at work
in extreme conditions. Benefits provided to certain groups of miners provisions of §
78 of the Pension Insurance Act but by the petitioner
violate the principle of equal rights under Article 1 of the Charter.

The petitioner points out that the miners, who have reached 31 12. 1995
age, which is 10 years less than their lower retirement age, remained
under that provision retaining the advantage of an invalidity by | || force before 1 January 1996, although other groups of insured persons
received this benefit. The legislature clearly wished to take account of the undesirable possibility
work integration miners who are approaching retirement and who
according to the regulations in force from January 1, 1996 would have to start exercising
gainful activity. The petitioner believes that such protection
not under the current law is justified. It refers to the provisions of §
30 and 31 of the Pension Insurance Act, which allow early retirement
retirement. The miners, who have a retirement age of 50 years
so they can go into early retirement in accordance with § 30.
3 of the Act as early as 45 years of age, according to § 31 of the Act
47 years of age. For miners the pensionable age of 55 years he is entitled to 50
respectively at 52 years of age. Any adaptation problems can thus be solved with
very benevolently set conditions for entitlement
early retirement pension.

The petitioner pointed out that protection under § 78 of the Pension Insurance
was given to policyholders for which disappeared
ability to exercise gainful activity. Disability pension they have been granted a
because contemporary views on the social importance of mining employment.
The legislature failed to provide legal protection to more severely affected
retirees and those whose disability has been recognized by § 29 para. 2
point. d) of the Act no. 100/1988 Coll. For them, there was also a change in conditions
assessment of full disability. Protecting the rights of this group of clients
however, it is not regulated in any of the transitional provisions of the Act, though adaptation
job performance is due to the nature of their disability
certainly more difficult than for miners aged at least 40 to 45 years || | enjoying the "estate" disability pensions. According to the petitioner's opinion
not admit such a significant disparity in the rights of the insured only
reason that a group of workers in the mining industry is in pursuit of its
interests and requirements in the legislative process more successful than, for example.
Organization or physically mentally disabled.

Conclusion, the petitioner states that he is aware of the fact that
special rules for certain disciplines may establish special criteria of equality that
from the general principle of equality not arise, because the application of the principle of equality
not set such precise limits to exclude any
discretion. For this reason, the petitioner acknowledges the right of the legislature
enshrine in law a certain inequality, but may not go unsupported

Differences in laws, as in § 78 of the Pension Insurance Act.

II.

Constitutional Court, under § 69 par. 1 of Act no. 182/1993 Coll., On the Constitutional Court
, as amended, asked the Chamber of Deputies and the Senate
Czech Republic, as parties,
comments on the proposal.

Chairman of the Chamber of Deputies PhDr. Lubomir Zaoralek, the petitioner stated that
in the new pension scheme established by Act no. 155/1995 Coll.
A full disability is defined as the persistent or long-term loss or decline
employment potential of at least 66%. It is no longer the disability
which is recognized because the exercise of continuous employment
seriously deteriorated state of health of citizens. Furthermore, it eliminates the type of disability, which is
citizens were able to perform a systematic job, but just completely unreasonable
his previous abilities and social importance
former profession. The new statutory definition of disability
therefore does not allow so. Professional and professional disability. This means that the efficiency
Pension Insurance Act should not be accorded
disability pensions to those who due to health condition and change jobs
decrease their working skills while
exceed specified limits. Those terms also apply to pensions granted before
effective date of this Act. It was therefore justifiable to provide for the possibility of withdrawing
disability pension certain criterion, the possibility
retraining with regard to medical considerations. This principle was established
one exception, which touches just recipients of disability pensions
recognized because "Estates 'disability'. According
this exception contained in § 78 of the Act on pension insurance beneficiaries can withdraw
full disability pension, which reached 31 12. 1995
aged at least ten years lower than the retirement age, this
pension only under conditions set by the regulations in force before January 1
1996th The legislature took into account age pensioners, who at the time of the Law on Pension Insurance
already received stavovský disability pension, and thus had a difficult
opportunity to re-classify the workforce.
Such an approach is fully justified by the specific situation of "professional ethics"
disability pensions enjoyed by citizens who exercised after a specified period of time
riskiest job in the mining industry. From this perspective
constitute a breach of the principle of equality before the law.
Deputies expressed the belief that the legislative assembly acted
when discussing the pension insurance act in accordance with legal procedure
and in the belief that the law is not in conflict with the Constitution
Czech Republic (hereinafter " Constitution").

Senate President Assoc. JUDr. Petr Pithart, in his response to the petition
recalled that the Pension Insurance Act approved by the Chamber of Deputies
since before the establishment of the Senate. Eventually, after the establishment
Senate, he has been amended several times. None of the amendments, however
apply to the contested § 78. For that reason, the Senate can not give
statement, which would be based on consideration of the provision in the Senate
. It still considers it necessary to state that the legislation in force before
enactment of the Pension Insurance nevymezovala concept called.
Estates disability only in relation to mining profession, but also in
relation to other professions. In this context, it is not reasonable to conceive
provisions of § 78 of the Pension Insurance Act as a rule that
favors only some workers in the mining industry compared to other groups
insured. The general nature of the legislation is not modified by the fact that
largest number of cases in which it was called. Stavovská disability
recognized, pertained to persons harmed health in the context of
performance of the mining profession. Rather it was that it was this way
probably methodologically guided and unification of procedures precisely in relation to
most frequently occurring cases. In connection with the alleged
inequalities among a group of "professional ethics pensioners" category and a much
severely affected pensioners whose disability has been recognized by §
29 paragraph. 2 point. d) of the Act no. 100/1988 Coll., the Senate stated that in case
"estate disability", whose definition was not included in the Act on Pension Insurance
taken, would undoubtedly occurred in most cases

To the loss of entitlement to disability pension awarded on the basis of previous
legislation. Such impacts were apparently law drafting
found too harsh, and were relieved by adjusting the transitional provisions
§ 78. In the case of invalidity conditional
ability to perform a systematic job only for "extraordinary conditions" were legal | || adjustment preserved and has undergone changes in the definition of what is meant
quite extraordinary conditions. Adoption of new legislation, no changes,
that for this group of beneficiaries of disability pensions could have
such consequences as in the case of "professional ethics retirees" and therefore
probably in the latter case was not considered to modify certain transitional
provision. Thus, if the proposal states as an example of violation of the constitutional principle of equality
mentioned group of recipients of disability pensions
whose protection the legislature in any of the transitional provisions
not regulated, it would be necessary to show that the specific impacts of new legislation
modification of their demands were related to claims
completed under the previous legislation.

The Constitutional Court also requested pursuant to § 48 par. 2 of the Constitutional Court
statement from the Ministry of Labour and Social Affairs ( "MLSA").

MLSA in its response to the petition said they opine
petitioner's view that the so-called. Stavovská disability refers only to miners.
It noted that this was not the type of disability, ranging from Law no.
55/1956 Coll., On social security, referenced to a particular profession.
The Act define disability so that the employee is also
disabled if the permanent detriment of health, although
capable of gainful employment, but totally inappropriate
his previous abilities and social importance of current employment. In
point 12. Directive no. 73/1957 Ul It stated that employment is totally disproportionate
previous abilities and social importance of the current
job if the worker totally alien and remote
hitherto his job and unless it is sufficiently recovered its earlier
abilities, so in terms of society it is not practical or economical
that working a job performed. Definition called.
Estates disability was similar in other regulations
Social Security. For application practice based on these regulations, the Ministry
known that the provisions governing 'Estates' disability'
was used (some times also as a kind of substitute
nonexistent pension for long-term service) for the assessment of full disability
efficient pilots, respectively. Some performers. Case law also contains
applications in other types of different qualifications. It is essential that
term "esprit disability" was primarily intended for mining
profession, although in practice this group of professionals has become probably the most numerous
.

MLSA also stressed that the Pension Insurance Act took into account the new definition of disability
medical aspects and earlier definition of full disability
building on the criterion of unfairness in relation to the previous
abilities assumed. Unlike other definition of total disability
[eg. § 29 par. 2 point. d) of the Act no. 100/1988 Coll. a reflection
§ 39 paragraph. Point 1. b) Pension Insurance Act] is called. stavovská
disability to the Pension Insurance Act does not reflect.
With regard to its specific nature, it was necessary to adjust the existing
react in the transitional provisions. MLSA
pointed to the explanatory report to the government bill on pension insurance, where the
§ 78 states that it is justified to introduce a criterion that
retraining possibilities with regard to medical aspects, which will be
"stavovský retirement" withdraw. Determined that in people who have reached the age
ten years or less lower than the retirement age progressed
under the conditions set by the regulations in force before 1 January 1996, and it
with regard to difficult employment. The regulations contained in § 78
Act on Pension Insurance based on protection for those retirees whose
would be due to differences in definition of total disability and due to their age
was barely socially acceptable to fully apply the new legislation || | which is based on different principles and could mean prison

Granted a disability pension in old age, it is difficult to find on the labor market
location.

MLSA finally confirmed that the contested provision is not only the miners, but all
insured. Therefore it is not reasonable to compare this provision
with the provisions of § 76 of the Pension Insurance Act, which covers only
miners. The proposed solution to the situation of miners going into early retirement
stated that the legal status of the beneficiary
early retirement is totally different than that of the recipient
a full disability pension. They differ in the amount of early retirement (this
income may be lower than the disability pension), a future increase in pensions
which is differentiated according to the date of granting pensions (early retirement
pension would be indexed less), any work activity (which is
for early retirement were excluded), earning a
compensation for loss of earnings, etc. Forcing the insured to apply for admission
early retirement is aggravate their existing
position. MLSA also pointed out that the repeal of § 78 after more than two-thirds of the trade
year period would be created inequality between those
insured persons who have reached the retirement age of the trade deadline, and
those who in this period of retirement age have not yet reached.

MLSA consequently expressed the opinion that § 78 of the Act on Pension Insurance
is still objectively justified and therefore does not constitute
inequality in rights under Article 1 of the Charter.

III.

Constitutional Court first, in accordance with § 68 para. 2 of the Constitutional Court,
amended, reviewed whether the statute whose provisions
is assessed in terms of constitutionality, was adopted and issued within the bounds
provided jurisdiction and in a constitutionally prescribed manner. From the statements
Chamber of Deputies, as well as relevant parliamentary publications and
of the vote, the Constitutional Court found that
Chamber of Deputies approved the bill on pension insurance at its 32nd meeting on 30
6th 1995, when, out of the 178 present deputies
favor and 100 against 76. The law was signed by President of the Republic. On
fourth 8th 1995 was promulgated in the Collection of Laws in part 41
No. 155/1995 Coll. The Pension Insurance Act was passed in
constitutionally prescribed manner and within the bounds of constitutionally provided jurisdiction
compliance with the rules laid down in Article 39. 1 and 2 of the Constitution.

IV.

The provisions of § 78 of the Pension Insurance Act, whose repeal is
petitioner seeks, reads:

"Drawing full disability pensions granted before January 1, 1996,
which at 31 December 1995 reached at least the age of about ten years lower,
than the retirement age established under this Act [§ 32, 74 76 and
§ 94 point. a)], can be removed from the first retirement pension payment
due in January 1997 and only under the conditions set
regulations in force before 1 January 1996, if this
full disability pension awarded for disability caused by long-term adverse health
condition for which the beneficiary is able to perform a systematic job, but only
completely unreasonable his previous abilities and social importance
current employment. ".

Petitioner justifies its proposal to repeal § 78 of the Pension Insurance
its conflict with Article 1 of the Charter.

Constitutional Court's task is therefore to assess whether the conditions laid down
scope of the contested provisions are capable of infringing the principle of equality in rights
generally expressed in Article 1 of the Charter, under which people are
free and equal in dignity and rights. The principle of equal rights
under Article 1 of the Charter and concretized in Article 3 of the Charter must be
assessed in relation to Article 26 of the International Covenant on Civil and Political Rights
, which provides that all persons before the law || | equal and entitled to equal protection of the law without any discrimination, while
law should be any discrimination and guarantee to all persons
equal and effective protection against discrimination on any grounds
eg. as race, color, sex, language, religion,
political or other opinion, national or social
origin, property, birth.

Constitutional principle of equal rights belongs to those fundamental human

Rights which constitute the value system of modern democratic societies
. The principle of equality is a legal philosophical postulate that
is the level of positive rights guaranteed by the prohibition of discrimination.
Equality is not an unchanging category, as it undergoes development that its contents
especially in the area of ​​political and social rights distinctly notes.

Constitutional Court in a number of its decisions [eg. findings in cases involving
under sp. Nos. Pl. US 16/93 of 24. 5. 1994 (promulgated as no. 131/1994 Coll., And
published in the Collection of Decisions of the Constitutional Court, Vol. 1, pp
189 et seq.), Sp. Nos. Pl. US 36/93 of 17. 5. 1994 (promulgated as no. 132/1994 Coll
. And published in the Collection of Decisions of the Constitutional Court
Volume 1, pp. 175 et seq.), Sp. Nos. Pl. US 5/95 from 8. 11. 1995
(promulgated as no. 6/1996 Coll., And published in the Collection of Decisions of the Constitutional Court
, Volume 4, pp. 205 et seq.), Sp. Nos. Pl. US 33/96
fourth 6th, 1997 (promulgated as no. 185/1997 Coll., And published in the Collection of Judgments
Decisions of the Constitutional Court, volume 8, pp. 163 et seq.)]
Interpreted the content of the constitutional principle of equality. He agreed them with the understanding of equality as expressed
The Court has in its judgment of 8. 10. 1992 sp. Ref.
Pl. US 22/92 (published in Volume 96/1992 Coll., And published as no. 11
Collections resolutions and judgments of the Constitutional Court of Czechoslovakia). The Court has in him
understood equality as a relative category, which requires the elimination of unjustified differences
. The principle of equal rights
therefore be understood that legal differentiation in the approach to certain rights may not be
manifestation of arbitrariness, it does not follow, however, it concluded that everyone must
be granted every right. This conclusion arises from adjustments in Articles 1 to 4
classified under the general provisions of the Charter. Article 1 of the Charter, which is specifically
violations alleged, can not be interpreted in isolation from other
general articles 2-4 of the Charter, but on the contrary, it is necessary to hold a
as a single unit. Of these general provisions, it is clear that
fundamental protected values ​​listed in Article 3 of the Charter
framers did not conceive as absolute. The same is also reflected in the provisions of Article 4 of the Charter
which directly implies the existence of statutory obligations and
restrictions but also Article 2, paragraph. 3 of the Charter, in which it foresees the possibility
impose certain obligations and restrictions.

Likewise, international human rights instruments and many decisions
international supervisory bodies based on the fact that not every unequal treatment of different
subjects can be classified as a violation of the principle of equality
, thus as illegal discrimination against one group of subjects
comparison with others. So that the violation occurred, should be subject to several conditions
: With various entities in the same or
comparable situation are treated in a different manner, without there being
objective and reasonable grounds for the different approach.

International treaties and court decisions often distinguish formal equality
(ie. The equal treatment of formally equal subjects in formally
same cases) and substantive equality (ie.
Formally unequal treatment in fact unequal entities that It has to compensate for this
factual inequality and thus help create true equality between them
). The latter case is often called.
Positive discrimination, if it introduces preferential treatment of subjects
who are in fact significantly disadvantaged compared with other
(preferential treatment).

Means of preferential treatment are not fundamentally in conflict with the law
principles of equality and non-discrimination as their application
aims to eliminate de facto discrimination between these entities (see eg.
Article 4 paragraph. 2 and 3 Framework Convention for the protection of national minorities -
see no. 96/1998 .; General comment of the Committee on human rights. 18 to Art.
26 of the International Covenant on civil and political rights of r. 1989, §
10; judgment of the European court of human rights in the case of Belgium
language matters from 1968. § 10). Protocol no. 12 to the Convention on
Protection of Human Rights and Fundamental Freedoms of the year. 2000, Czech Republic signed
4. 11. 2000 (not yet ratified), in the last paragraph
its preamble states that " the principle of non-discrimination
Contracting States are free to take measures to promote full and effective equality
, provided that they are objectively and reasonably

Justified. ". In the explanatory memorandum to the referenced Protocol (§ 16) states:
" The fact that certain groups or categories of persons are disadvantaged, or
existence of certain factual inequalities can justify the adoption
measures to promote equality confer certain advantages, namely
assuming that will be adhered to the principle of proportionality. ".
the same section of the explanatory memorandum adds that Protocol. 12 imposes a contractual obligation
States to favoring such measures adopted or taken.

the excursion leads Constitutional court concluded that certain legal framework,
favoring one group or category of persons over another can not be
itself to violate the principle of equality.
legislature has a certain discretion to decide whether such preferential treatment.
must see to it that the preferential approach is based on objective and reasonable grounds
(a legitimate legislative aim) and that between this
goal and the means to achieve it (legal advantages)
a relationship of proportionality (see, eg. the judgments of the European court of human rights in cases
Abdulaziz, Cabales and Balkandali of r. 1985, § 72; Lithgow from r.
1986, § 177; Engin from r. 1987, § 41).

In the area of ​​civil and political rights and freedoms, which is immanently
characterizes the state's obligation to refrain from interfering in them, for
preferential (ie inherently active)
treatment of certain subjects generally only minimal space. In contrast, the rights of
economic, social, cultural and minority rights, in which the State
, very often obliged to take positive action designed to remove blatant aspects
inequality between different groups intricately socially, culturally, professionally
or other levels, the legislature logically
much greater discretion to exercise their notions of permissible limits
de facto inequality within it. Therefore, it chooses preferential treatment much more frequently
.

The petitioner took in its claims about the unconstitutionality of § 78 of the Act on Pension Insurance
into account other provisions of this Act, which
its combined operations, favoring workers in the mining industry compared to other groups of insured
. He pointed in particular to the provisions of § 74 and 76
which sets the retirement age of miners have already worked in the specified period
so. preferred job categories. This inequality itself
not considered a violation of Article 1 of the Charter, because it is aware that
legislature took into consideration the demands of the mining profession
damage to their health as well as wear rate of the organism when working in extreme
conditions. Other benefits provided just by the provision § 78
However, in his opinion, no longer represent a breach of the principle of equality.

Constitutional Court especially emphasizes that § 78 of the Act on
pension insurance does not cover many categories of miners, but covers
other groups of insured. This fact moreover pointed out in its statement
the Senate and the MLSA. Legislation in force before the adoption
Pension Insurance Act defined the so-called. The estates disability
not only in relation to the mining profession, but set general criteria
also applicable in relation to other professions (cf. § 18 par. 2 of the Decree
no. 149/1988 Coll., which recently defined the term "employment, which is wholly disproportionate
previous abilities and social importance
current job"). This is not to refute and practical
fact that the largest number of cases of so-called recognition. Estates disability
is actually related to persons harmed health, specifically in connection with
performance of the mining profession.

Constitutional Court, which is bound in its decision the petition, not
its reasoning, the first question asked whether the privileged position
Mining Workers (possibly other insured, has already met the general criteria for
inclusion to the group.
profesional disability pensioners) under the law on pension insurance compared to other categories
insured is based on objective and reasonable grounds and
aspects. This group of insured objectively separates from around
file insured by its members carried out for a specified period
physically and mentally extremely arduous, risky and demanding
work, often in extreme conditions (for underground miners or | || eg. the extreme congestion in airspace for executive pilots). At

Assessing further assumption, ie. Whether their advantage
reasonable law, the Constitutional Court refers to the explanatory memorandum to the Law on Pension Insurance
on the statement from the Chamber of Deputies and
MLSA, according to which the legal grounds for such adjustments are particularly
adverse health impacts and the group of miners and social impacts associated with
performance of such occupation. Viewpoint so you can assess the constitutionality plane
reasonable. The Constitutional Court therefore does not believe that some of these workers
advantage over other categories of policyholders were
lawmakers manifestation of arbitrariness. It is a legitimate attempt by the legislature
compensate for actual disadvantage of this group
based on objective and reasonable grounds and viewpoints.

The Constitutional Court also asked the question, whether it is a legitimate legislative aim
compensation loaded and executed in a manner that is proportionate to this objective
. In other words, the Constitutional Court proceeded to test
proportionality.

Claimant himself believes that the mere relief under § 74 miners and 76
Pension Insurance Act in terms of retirement age
constitute a violation of Article 1 of the Charter, it is reasonable
specifics of their profession and the wear rate of the organism . Another advantage
pursuant to § 78 of this Act, that its proposal petitioner contests already
however, he seems unreasonable and unjustified.

The Constitutional Court, in agreement with the statement MLSA particularly recalls that
provisions of § 78 of the Pension Insurance Act does not merely
miners, but also other categories of policyholders. There is therefore entirely appropriate
compare their privileged position with the provisions of § 74 to 76 of the Act on pension insurance
affecting exclusively miners.

The provisions of § 78 refers to the so-called. Estates' disability, which
previously regulated by Act no. 100/1988 Coll. the provisions of § 29 par. 2 point.
C). He defined it as a long-term health condition, due
which the citizen is indeed able to perform a systematic job, but only
totally inadequate his previous abilities and social importance
current employment. In practice, this type of disability acknowledged to
mostly miners working in underground coal or uranium mines.
The new pension scheme 'Estates' disability' as an independent institute
assumed and stated that the criteria set by law on disability
pension insurance, 1 1, 1996 and henceforth refer to former
"estate" disability pensioners. This general rule broke the law on pension insurance
exception provided precisely in its contested § 78.
eat legislature granted the group of former "professional ethics" retirees who have reached
31 12. 1995 aged at least ten years lower than
their retirement age, benefit assessment of their claims under the provisions
force before the pension insurance Act. As the Constitutional Court
previously stated (cf. In particular Judgment. Nos. Pl. US 4/95 of 7
6th, 1995, promulgated as no. 168/1995 Coll., And published in the Collection of Judgments and | || resolution of the Constitutional court, volume 3, pp. 209 et seq.), the procedure is not
legislature, which preserves the existing privileges certain groups of people in
valid under the new law, is unusual. It does so by, among other things.
In order to ensure confidence in the acquired rights, legal certainty and stability
legal status. Those interests legislature undoubtedly directed even at
determine the content of § 78, taking into account the other side of the political
fact that in a democratic society
market conditions no longer has any reason to "estate pensioners' treated equally | || unreservedly, as did the previous regime.

Workers in mining (and other policyholders, already meet the general criteria
"estate disability") therefore do not benefit from the current pension system
terms "estate disability" benefits in the same amount provided by
their previous system of social security. The extent of their advantage
decreased significantly. Advantage is now only one narrow group of former
"professional ethics" retirees who meets the criteria stipulated by the provisions of § 78
Pension Insurance Act. Favorable treatment thus applies only to a narrow
oldest age group of former professional ethics retirees with
which would be due to differences in definition of total disability with regard to

Their age was barely socially acceptable to apply entirely new
legislation, which is based on different principles than finish
earlier. Full use of the new legislation could mean prison
granted a disability pension in old age, which is due to
objektivizovatelným medical aspects, as well as with regard to
reduces the possibility of retraining and re-employment inclusion lowest
ability to enforce the labor market. These selected conception provisions of §
78 moreover respects the concept of "law" in its material sense,
in accordance with which the "law" must be characterized by accessibility, clarity and predictability
. Does persons covered, to allow his
modifying adapt their future behavior. If the law on pension insurance
contained transitional provisions of § 78, he would not for that
oldest age group of former pensioners of the professional law
"predictable" since these retirees would have given its
"předdůchodovému 'age and any other relevant facts were already
able to effectively adapt to the new regulation over their future conduct.

The Constitutional Court also highlights the precariousness adjustments in § 78 and
rapidly declining group of persons who will be able to claim their thereunder
apply. The effects of this provision in practice subside in the next few years
. Under these circumstances, there appears the current statutory rate
relief granted by that group of people infected § 78
as disproportionate. The Constitutional Court recognizes the constitutional relevance of the argument
according to which the possible repeal of § 78 triggered secondary inequality
those policyholders who have reached the retirement age of the trade deadline, and
those within that period have not yet reached . This secondary inequality
would clearly bore the characteristics of discrimination, since it was not based on reasonable grounds
, but only on a random moment
repealing the provisions in the Constitutional Court.

The petitioner considers the benefits "profesional" Retirement
unjustified and disproportionate in the wider context, having regard to the provisions of §
30 and 31 of the Pension Insurance Act that allow early retirement pension
. Potential problems with the adaptation of older miners can
in his view, to solve using eligible for early retirement.

Institutes retirement and invalidity pensions are not entirely
different categories that have a pension scheme
its foundation and one supersedes the other. Retirement
is subject to conditions other than a disability pension.
Condition for entitlement to a pension is to obtain the necessary insurance period and achieve
stipulated age or. meet other statutory conditions. In contrast
fact of entitlement to disability pension is a critical aspect of health
(disability of the insured) and the required insurance period (according
previous legislation required period of employment), which is shorter than for old-age pensions
. We can not ignore the economic aspect. While
construction of a full disability pension calculation is consistent with the structure
calculating the retirement pension, the percentage amount in the case
early retirement decreases.
Later granted early retirement pension is indexed less than a disability pension. For
early retirement, unlike a disability pension ruled
work activity. Granting of early retirement is considered
for changing conditions pursuant to § 202 paragraph. 1 of the Labour Code, which has
result in loss of entitlement to compensation for loss of earnings. For those
aspects that the replacement of full disability pension early retirement benefits
compromising the current status
respective disability pensioners. The provisions of § 78 of the Pension Insurance
therefore not consumed nor compensated by the provisions of § 30 and 31 of this Act
.

Even compared privileged position "profesional" retired status
groups of disabled insured, as is done petitioner
Constitutional Court does not consider it justified. To assess whether a
discriminatory legislation or not, must be compared
person in the same or analogous position. Groups of "professional ethics"
disability pensioners and disabled people but in such a comparable

Position not because of their disability arises from different causes and characteristics
their (in) ability to exercise gainful activity
. The Constitutional Court, however, mainly reminds fundamentally
derogatory nature of its powers. To improve the position of physically disabled
insured would need positive interference by the legislature, not
derogative intervention by the Constitutional Court. However, the Constitutional Court could
sympathize with the petitioner's view that the group should
physical disabilities enjoy the same benefits as the circle of "professional ethics" pensioners
must say that it is only up to the legislature whether a particular group
provides more benefits than others in the same time does not flow freely.
For the situation where found no advantage to one category of persons as
unconstitutional, the Constitutional Court is not entitled to substitute the legislator and his
lack of will to benefit other categories reconstituted.

With regard to everything mentioned above, the Constitutional Court came to the conclusion that
contested § 78 of the Pension Insurance Act itself and
in conjunction with other provisions of this Act regulates such
benefit older "professional ethics" homes, which can be considered
legitimate and reasonable. Therefore, does not violate the constitutional principle of equality. Therefore
Constitutional Court for the annulment of § 78 Act no. 155/1995 Coll., On pension insurance
according to § 70 para. 2 of Act no. 182/1993 Coll. dismissed.

Chairman of the Constitutional Court:

Pp. JUDr. Holeček vr
Vice