186/2012 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided under ref. Nos. Pl. US 54/10 of 24 April 2012
Plenum, composed of Stanislav Balik, Frantisek Duchon, Vlasta Formánková,
Vojen Güttler, Pavel Holländer, Ivana Janu, Vladimir Kurka, Dagmar
Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým, Miloslav Vyborny
(rapporteur) and Michael Židlická a petition from a group of 45 deputies
Parliament of the Czech Republic, represented by deputy Mgr. Bohuslav Sobotka
, the annulment of § 192 paragraph. 1 second sentence after the semicolon
in the words "wage compensation is not for the first 3 days of such
temporary incapacity, but no more than for the first 24 hours not worked
hours, spread out shifts "in Act no. 262/2006 Coll.,
Labour Code, as amended, § 68 par. 3
point. a) the words "except for the first three days of service for which
a refund equal to the salary does not provide" in Act no. 221/1999 Coll., on
Soldiers, as amended, the provisions of § 124
paragraph. 5 point. a) the words "except for the first three days of service, for which
official reception at the inability of the service and does not provide" in
Act no. 361/2003 Coll., on the service of members of security forces
, as amended, the provisions of § 34 para. 4
first sentence the words "except for the first three working days after that when temporary incapacity
salary is not" and the second sentence in the words
"is not over During the first three calendar days of temporary work incapacity
"and the word" fourth "in Act no. 236/1995 Coll., on salary and other terms
associated with the duties
representatives of state power and some state bodies and judges and Members of the European Parliament
, as amended, the provisions of § 73 para. 4 sentence
first in the words "monthly fee for the first three calendar days of temporary incapacity
not belong," and the word "fourth" in Act no.
128/2000 Coll., on municipalities (Municipal establishment), as amended,
§ 48 par. 3 of the first sentence the words "monthly fee for the first
3 calendar days of temporary incapacity does not belong, "and
word" fourth "in Act no. 129/2000 Coll., on regions (regional establishment),
amended, the provisions of § 53 par. 4 in the first sentence
the words "monthly fee for the first three calendar days of temporary work incapacity
not belong," and the word "fourth" in Act no. 131/2000 Coll., on
capital city of Prague, as amended, the provisions of § 111 | || first sentence the words "except for the first three days, which are days
perform the services for which they pay during temporary incapacity
is not" in Act no. 218/2002 Coll., on civil service employees
administrative authorities and remuneration of these employees and other
employees in administrative offices (service Act), as amended
regulations, and the provisions of § 65 par. 1, second sentence, the words "the first 3
days, after which the salary compensation paid-25c), and "in Act no. 155/1995
Coll., on pension insurance, as amended, with the participation
Chamber of Deputies and the Senate, as participants
management

Follows:

The petition is denied.

Reason:

I.


Petitioner's arguments
First The Constitutional Court received on 9 December 2010 a proposal for a group of 45 deputies
(hereinafter "petitioner") to cancel the above-mentioned regulations with
assertion that the institute called. Waiting period, after which, in the case of temporary work
inability does a person in an employment or service relationship
wage compensation or salary or other income
is inconsistent with the right of citizens to adequate material security in
work incapacity under Article. 30 paragraph. 1 of the Charter
fundamental rights and freedoms (the "Charter") and the principle
enforceable binding nature of Constitutional court decisions on all authorities and persons according to Art. 89
paragraph. 2 of the Constitution.

Second The petitioner argued judgment of 23 April 2008 sp. Nos. Pl.
US 2/08 (N 73/49 SbNU 85; 166/2008 Coll.), Which the Constitutional Court annulled
part of § 15 para. 1 and 3 and § 16 of Act no. 54/1956 Coll.
on employee Sickness insurance, as amended (hereinafter
"Act on employee Sickness insurance"), that the abolition

Health benefits for the first three days of sick leave per
current obligation to pay insurance premiums and regulatory fees
constitutes a violation of workers' rights at the constitutional level.
In the cited judgment the Constitutional Court, inter alia, pointed out that the change in the payment of sickness benefits
affects a number of other acts enumerated in
section 27-35 of the Act no. 261/2007 Coll., On stabilization of public
budgets; their removal was not designed, and therefore they
Constitutional Court could not deal with.

Third Referring to the decision the reasons cited Constitutional Court
petitioner further stated that the legislature has responded to the discovery of the amended Act
about employee sickness insurance by Act no. 305/2008 Coll.
Which amended the level of sickness benefits for the first three
calendar days of incapacity or quarantine. From 1 January 2009 but was renewed
unconstitutional situation, since the law on health insurance of employees
(Act no. 54/1956 Coll.) Was abolished by Act no. 187/2006 Coll., On Sickness
insurance Institute and the so-called. waiting time was restored
applying the relevant provisions contained in the relevant laws.
Proposals to eliminate this situation through amendments to the relevant laws
legislature did not.

Fourth The petitioner pointed out that the Act no. 347/2010 Coll. Amending
certain acts in connection with austerity measures in the scope
Ministry of Labour and Social Affairs, further narrows the scope of the legal rights
citizen to adequate material security incapacity for work pursuant to Article
. 30 paragraph. 1 of the Charter, as in Art. I paragraphs 13 and 14 above
permanently reduces sickness during long-term illness at 60% of the daily assessment base
from 66% from the thirty-first to sixtieth
calendar day of temporary incapacity or ordered quarantine
and 72% of the sixty-first calendar day of
temporary incapacity or ordered quarantine.
Same effect as the annulled waiting time in the Act no. 54/1956 Coll.
, according to the petitioner and three-day waiting period under § 192 paragraph. 1 Code
work, and because the waiting period in other laws, especially regarding
soldiers, members of security forces, representatives of the state and territorial
governments and people in the service of fixed
similarly, these provisions are designed to eliminate.

II.
Observations of the parties


Fifth Chamber of Deputies of the Parliament of the Czech Republic in response to the petition
dated February 2, 2011, signed by the Chamber of Deputies chairwoman Miroslava Nemcova
, noted that the three-day waiting period as how
attacked by the petitioner has been introduced into the legal system law no.
261/2007 Coll., on stabilization of public budgets.
Act was subject to constitutional review, the Constitutional Court, however, argue that the law was not adopted
constitutionally prescribed manner nepřisvědčil [sp findings. Nos. Pl.
US 24/07 dated 31 January 2008 (N26 / 48 SbNU 303; 88/2008 Coll.), File Pl. US
1/08 dated 20 May 2008 (N 91/49 SbNU 273; 251/2008 Coll., Et al. Nos. Pl. US
2/08 (see above)]. The initial adjustment of the waiting period in provisions that are
proposed to abolish, was affected by Act no. 305/2008 Coll., which
amends Act no. 187/2006 Coll., on Sickness insurance, as
amended, and some other laws; editing was subjected
question wording, but not the essence of the three-day waiting period.
provisions of the Labour Code, proposed to abolish prejudice and law no. 326/2009
Coll., on fostering economic growth and social stability, also in this case
was a supplement without any substantive changes to three-day waiting period.
Deputies stated that Act no. 261/2007 Coll., no. 305/2008 Coll.
and no. 326/2009 Coll., have been enacted, signed by the appropriate constitutional
officials and promulgated in the Official Gazette that the assessment of constitutionality
Institute of the waiting period leaves it to the constitutional court.

sixth Czech Senate in response to the petition dated 21
January 2011, signed by the chairman Petr Pithart, he said the changes
adopted in response to the Constitutional court decision. Nos. Pl. US 2/08 (see above
) dealt in July 2008 when discussing a draft amendment to Act No.
. 187/2006 Coll., On sickness insurance, and certain other laws.
"For the bill to the Senate ceded to matters relating to the so-called.

Waiting times in terms of the consequences resulting from the judgment of the Constitutional Court
suggested that if the proposed modification is accepted, then from September 1
2008 to 31 December 2008 will be granted wage compensation (salary, bonuses) | || for the first three days of temporary work incapacity or quarantine the
level as it was during the period preceding the introduction of.
waiting times (25% of the daily assessment base), and from 1 January 2009, coming into force | || effectiveness of Act no. 187/2006 Coll., on sickness insurance for the first three days
temporary incapacity wage compensation (salary, bonuses)
not belong, so it will be applied modification of the waiting period initially adopted || | framework of the Act on stabilization of public budgets, that from that date
also will reduce insurance premiums by 0.1% (for employees
self-employed persons participate in the disability insurance
foreign employee) , that the waiting period will not apply to
ordered quarantined. "stated explicitly Senate.
bill was discussed in the Committee on health and social policy Committee
economy, agriculture and transport with recommendations to approve the amended
passed on by the Chamber of Deputies; The Senate debated the bill on 17 July 2008.
After a presentation by a representative proposers
Deputy Prime Minister and Minister of Labour and Social Affairs Petr Necas, the changes
which was addressed to the Constitutional Court, the Social Democrats Caucus || | presented his reservations about the level of health insurance benefits and
proposed solution to the so-called. waiting period after the general debate
law was passed; 62 from the present 45 senators voted for the proposal, 3
senators were against it.

III.

The opinion of the Czech Government

7th The government of the Czech Republic in the request for an opinion on the draft of 14. 3. 2011
signed by the Chairman Petr Necas initially recalled that
employers took over from 1 January 2009 the obligation to secure their
employees over a period of temporary incapacity
quarantine or from its own resources instead of sickness.

8th Referring to the arguments of the petitioner
exclusively referring to the reasoning of the judgment of the Constitutional Court Pl. US 2/08 (see above), the Government rejected the allegations
repealing three-day waiting period. From a legislative point of view of technical
waiting period was only introduced in the form of an amendment made in section
nineteenth Act no. 261/2007 Coll., On stabilization of public budgets
, for various situations in paragraphs 3, 4, 5 and 6. Motion
cancel the whole of the nineteenth Act on stabilization of public budgets
Constitutional court cited findings failed and canceled only legislation
corresponding paragraphs 3, 4 and 6, the corresponding adjustment item 5 left without
changes, which can have, according to the Government considers that the Constitutional court to annul the waiting period
only limit its use (in certain situations) and changed its
factual in nature (from absolute to relative).

9th The government also rejected the petitioner's claim about the existence of conflicting
guard time with the Charter of Fundamental Rights and Freedoms (the "Charter").
Under Article. 41 paragraph. 1 of the Charter, which the Constitutional Court cited judgment
explicitly mentioned, the rights referred to in Art. 26 and Art. 30 of the Charter
may be claimed only within the limits of law,
that these provisions are carried out. That text gives the impression as if the legislature could
right to security in sickness (dose) only to modify or restrict, but not eliminate
already. This is not, as is clear from previous and current regulation
sickness insurance, in accordance with generally respected principles
possible to legitimately and reasonably insured was at the time working
inability to secure dosage. This happens if you exclude a
sickness [under § 25 point. a) Act no. 187/2006 Coll., on
health insurance, sick leave is not entitled to the insured, who
intentionally inflicted temporary incapacity; according to § 24 Act no. 54/1956 Coll
. the number of these situations even wider] and in prison
sickness (under § 125 of the Act no. 187/2006 Coll., on
sickness insurance, sickness withdrawal penalties when violations during
mode temporarily incapable policyholder is possible on the basis
administrative authority's decision to reduce sickness or even completely withdraw).

10th Furthermore, the government has commented on the concept of "illness as a quasi-insurance
events" in its judgment. Nos. Pl. US 2/08 (see above). While stressing

It is a common principle in insurance systems (commercial)
to minor damage (loss) carried himself insured and the insurance system
it insures only the damage (loss) certain extent (degree of intensity) .
As an example, eg. Pension insurance, where
entitlement to disability pension of First Instance to a certain extent
injury, while minor damage claim for compensation does not establish.
In the area of ​​health insurance is less then the injury loss of income
after a short period. Waiting period in terms of the insurance system
based on the finding, which is still socially acceptable rate
damage (harm) which can rightly bear the insured (resp. Employee).

11th According to the Government and that the current existence of the waiting period does not
insurance principles, not only because the employee has
premiums for health insurance does not pay, but also because the waiting period
Constitutional Court annulled and the sickness insurance already limits
given Article. 30 paragraph. 1 of the Charter does not deviate plus a traditional measure in
internationally.

12th The government pointed out that the proposal to repeal the provisions listed
total of eight laws is not a complete list of related
provisions, as if it were waiting period lifted, it would have
this change is reflected in some other provisions on
her react, and not only in those laws. In the conclusion of his statement
government said that in deciding on the three-day waiting period in case of temporary incapacity
acted in accordance with the constitutional order
and international legal obligations and the reasons for the constitutional complaint (correctly
proposal) identified as unfounded.

IV.
Petitioners


13th Assembly of Deputies that the Act no. 261/2007 Coll., On
stabilization of public budgets, the Constitutional Court judged from several
terms of its adoption, the petitioner described as irrelevant, since its
proposal questioned the procedure of adoption this law, but attacked
individual provisions of the laws governing the institute of.
waiting times in the revised version, exclusively on substantive grounds.

14th The opinion of the Government of the Czech Republic, the petitioner stated that the government is not a party
repeal of laws and their individual
provisions, and if the Constitutional Court's observations requested, then apply that to the statements
government should as a collegial body
discuss and decide about it a resolution, which did not happen. Filed statement
can be considered only as an opinion of its Chairman, which states that
assessing the constitutionality of the contested statutory regulation is not decisive for what sources
a citizen when his incapacity for work is getting adequate
material security (sickness insurance funds
employers, state funds in the form of another kind
social security), whichever is whether he ever gets some material
security. A change in legislation effective from 1 1. 2009, according to which
obligation to ensure employees for a certain period of work incapacity or quarantine
transferred to the employer, not relevant from the point of view
constitutional requirement to provide at least some always || | ( "adequate") material security when an incapacity to work, because the essence of the so-called
. absolute waiting times remained intact.

15th To change the character of the waiting period from absolute to relative
petitioner pointed out that the contested statutory provisions was with effect from 1
1, 2009 fully restored the absolute nature of the waiting period
in case of temporary incapacity, where
treatment consisted of canceled judgment Pl. US 2/08 (see above); with effect from 1 9. 2008 ceased to apply
relative waiting period even quarantine. Referring to the judgment
Pl. US 2/08 (paragraphs 63 and 64 of the preamble), and finding Pl. US 1/08, renowned
as no. 251/2008 Coll., (Recital 103) the applicant rejected the comparison
institutes exclusion or withdrawal of entitlement to sick, understood as a penalty for the intentional misuse
sickness insurance system, s Institute
absolute deferred period, which is a measure which state a priori
flat rate temporarily excludes from protection against the risk of social events
(illness) all citizens, thus including those where the work occurred
incapacity was not their fault and who comply with treatment

Mode persons unable to work. They also pointed out that the loss of income
insured for the first three days of sick leave constitutes
loss of monthly income of at least 10%.

16th The petitioner pointed out that the citizens 'right to adequate material
security during incapacity to work (art. 30 paragraph. 1 of the Charter)
not unlike the citizens' right to free health care and to medical aids
(Art. 31 the second sentence of the Charter) requires the existence of public
insurance, a mandatory involved persons in the insurance system, which it
provides for cases of social events (disease), which means that
in a situation where citizens do not participate obligate premium payments
sickness insurance system, the state is not relieved of the obligation to ensure
them the right under Article. 30 paragraph. 1 of the Charter. Creating a system of health insurance is not required
neither the relevant international treaties -
agreements oblige the States Parties to provide sickness benefits, but
system, which this security will be implemented, leaving
legislation of each individual state.

17th The petitioner rejected the way in which the Prime Minister interpreted the findings
Pl. US 2/08 (see above), and in terms of international regulation reminded
obligation arising from the Czech Republic, the European Social Charter (Art. 12
paragraph. 3 Communication of the Ministry of Foreign Affairs no. 14/2000 Coll. Ms) on | || gradual increase in the level of social security, which is
contested legislation contrary.

18th In the conclusion of his statement the petitioner expanded petit
current draft and proposed that the Constitutional Court annul also the provisions of § 65 par. 1
second sentence, the words "the first 3 days, after which the salary compensation paid
^ 25c) and "in Act no. 155/1995 Coll., on pension insurance
amended. He said that the process of doing so cautious
because of the government's brief suggests that the distinction between lawful
provision that immediately raises unconstitutional effects, and
provision only related to him, may be the issue here.

19th To reply, the petitioner Senate of the Parliament of the Czech Republic in the filed
21 6. 2011 stated that it considered its statement of January 2011 for
sufficient and that the partial completion of the proposal will not respond.
Chamber of Deputies to reply the petitioner containing the expansion draft
outlay.

V.

Waiving hearing

20th The petitioner agreed to waive a hearing.
Neither the Senate of the Parliament of the Czech Republic at the hearing did not last. Since
Deputies, although when asked, within the prescribed period did not disclose whether
at the hearing lasts, the Constitutional Court ruled in a case without the regulation because
him to clarify the matter did not expect (§ 44 para. 2 of the Act no.
182/1993 Coll., on the Constitutional court).

VI.
Wording of the contested provisions


(To cancel the proposed pieces in the following text in bold)
Outline of


Act no. 262/2006 Coll., The Labour Code, in the version relevant to the assessment of the proposal


21st The provisions of § 192 paragraph. 1 of the Labour Code, in which the petitioner
suggested to cancel the second sentence after the semicolon in the words "salary compensation or salary
is not for the first 3 days of such temporary incapacity,
but no more than for the first 24 hours not worked hours, spread of innings, "
read:" (1) Employees, which was recognized temporarily unable to work or who
quarantine has been imposed, for the first time in 14
calendar days in the period from January 1, 2011 31 December 2013
during the first 21 calendar days of temporary work incapacity or quarantine
wage compensation days under the second sentence and
amount referred to in paragraph 2, if the day of the temporary work || | disability or quarantine the employee qualifies for sick
according to regulations on health insurance. within a period
mentioned in the first sentence, this is for the wage compensation for the days that are
employee working days, and holidays for which the employee is otherwise
salary compensation or him a salary is not reduced,
if these particular days qualifies for the payment of sickness
according to regulations on health insurance, and if the employment relationship
last, but not longer than until the date of exhaustion of the support period
intended for payment of sickness;


Wage compensation is not for the first 3 days of temporary
such incapacity, but no more than for the first 24 hours not actually worked out, spread

innings. Vznikla- if the temporary incapacity of the date on which the employee has
shift has worked, begins a period of 14 calendar days and
in the period from 1 January 2011 to 31 December 2013 period of 21 calendar days of temporary work
inability for the purpose of providing compensation for wages or salary
following calendar day. If the first 14
calendar days in the period from 1 January 2011 to 31 December 2013
during the first 21 calendar days of temporary work incapacity or quarantine
belongs to sickness or maternity benefits, | || wage compensation is not. If there
employees during the temporary incapacity or quarantine the right to compensation for wages or salary
according to the first to third sentences, it was not simultaneously
salary compensation or salary due to other obstacles at work. "

22nd contested provisions (in the words "wage compensation is not
for the first 3 days of such") was inserted into the Labour Code Act no.
261/2007 Coll., on stabilization of public budgets (part Twenty seventh, Art.
XLI, item 3) Act no. 305/2008 Coll., amending Act no. 187/2006
Coll., on Sickness insurance, as amended, and certain || | other laws (in the words "temporary incapacity"), and Act no.
326/2009 Coll., on fostering economic growth and social stability (in
words "not exceeding for the first 24 hours not actually worked out, spread | || exchanges "). VI.b



Act no. 221/1999 Coll., on professional soldiers, as relevant to the assessment of the proposal


23. the provisions of § 68 para. 3 point. a), in which the petitioner has proposed to repeal
words "except for the first three days of service for which
compensation in salary does," reads: "(3 )
the soldier provides compensation in the amount of salary for the first month temporary inability to
service to illness or injury,

Except for the first three days of service for which a refund equal to the salary does

; temporary inability to service due to illness or injury for the purposes of this Act means
temporary incapacity recognized by
regulations on health insurance. "

24th was contested provisions in the Act on professional soldiers loaded
Act no. 261/2007 Coll., on stabilization of public budgets (part Twenty
eighth, Art. XLII, item 2). VI.C



law no. 361/2003 Coll., on service in security
forces, as relevant for the assessment of the proposal

25th provisions of § 124 paragraph. 5 point. a), in which the petitioner has proposed to cancel
the words "except for the first three days of service for which
official reception at the inability of the service does not provide a", reads: "(5)
members are provided and service income) for the first month of incapacity
the service or ordered quarantine,

Except for the first three days of service for which the official reception at
inability to service does
and imposed quarantine shall equal 60% or so. "

26th Challenged provisions (in the words "except for the first three days
performance of the services for which service income does") was inserted into the Act
Act no. 261/2007 Coll., on stabilization of public budgets (the twentieth part
ninth, no. XLIV, paragraph 2), and replaced and supplemented by Act no. 305/2008 Coll
. (in the words "reception during inability to service
does").

VI.D

Act no. 236/1995 Coll., on salary and other indemnities associated with
duties of representatives of state power and some state bodies and
judges and Members of the European Parliament, in the version relevant to || | assessment of the proposal

27th provisions of § 34 para. 4, first sentence, in which the petitioner
proposed to abolish the words "except for the first 3 days, after which, when
temporary incapacity salary is not" and the second sentence in the words
"is not for the first three calendar days of temporary work incapacity
" and the word "fourth", read: "(4) representatives, whose
performance is governed by special legislation and Labour Code, and
judges who were recognized temporarily unable to work or were
ordered into quarantine, in time for the first 14 days and from 1
January 2011 to 31 December 2013 during the first 21 calendar days

Temporary incapacity (quarantine) pay at a reduced rate, in
60% of average earnings,

Except for the first 3 days, after which sickenss

inability to pay is not. Other officials and MEPs
belongs in the period from the fourth calendar day of temporary incapacity
(quarantine) the fourteenth calendar day and from 1 January 2011 to 31 December 2013
into the twenty-first calendar day of the
incapacity (quarantine) salary per calendar day at a reduced rate,
amounting to 60% of one-thirtieth of salary; salary

Is not for the first three calendar days of temporary work incapacity

and during the first three calendar days for the ordered quarantine
for each calendar day at a reduced rate, amounting to 60% of one-thirtieth || | salary. Salary determined by the first and second sentences are reduced by 50%
if it is a case where sickness according to regulations on health insurance
halved. "

28th contested provisions (in the words "with the exception of the first 3
working days behind," and the words "is not for the first three calendar days of temporary incapacity
") was inserted into the Act by Act no.
261/2007 Coll. stabilization of public budgets (the thirtieth part, no. XLVI,
point 3) and by Act No. 305/2008 Coll. (in the words "which sickenss
inability to pay is not," and the word "and"). || |


VI.E Act no. 128/2000 Coll., on municipalities (Municipal establishment), as relevant for the assessment


draft 29th provisions of § 73 para . 4, first sentence, in which the petitioner has proposed to cancel
words "monthly fee for the first three calendar days of temporary incapacity
not belong," and the word "fourth", read: "(4)
vacated council member municipalities

Monthly fee for the first three calendar days of temporary incapacity

not entitled, for the first three calendar days of quarantine entitled to a monthly remuneration for each calendar day
60% of one-thirtieth of the monthly remuneration and


Fourth calendar day of temporary work incapacity or quarantine
fourteenth calendar day and for the period from 1 January 2011 to 31 December 2013
into the twenty-first calendar day of temporary work incapacity or quarantine
it is entitled to a monthly remuneration for each calendar day
60% of one-thirtieth of the monthly remuneration. "

30th contested provision (in the words" monthly fee for the first 3
calendar days of temporary incapacity ") was inserted into the Act
Act no. 261/2007 Coll., on stabilization of public budgets (part thirtieth
second, Article LII., point 2) and by Act no. 305/2008 Coll. (the word "does not belong") .



VI.f Act no. 129/2000 Coll., on regions (regional establishment), as amended
relevant to the assessment of the proposal

31st provisions § 48 par. 3 of the first sentence, in which the petitioner suggested
abolish the word "monthly fee for the first three calendar days of temporary work incapacity
not belong," and the word "fourth", reads: "(3) vacated member || | council

Monthly fee for the first three calendar days of temporary incapacity

not entitled, for the first three calendar days of quarantine entitled to a monthly remuneration for each calendar day
60% of one-thirtieth of the monthly remuneration and


Fourth calendar day of temporary work incapacity or quarantine
fourteenth calendar day and for the period from 1 January 2011 to 31 December 2013
into the twenty-first calendar day of temporary work incapacity or quarantine
it is entitled to a monthly remuneration for each calendar day
60% of one-thirtieth of the monthly remuneration. "

32nd contested provision (in the words" monthly fee for the first 3
calendar days of temporary incapacity ") was inserted into the Act
Act no. 261/2007 Coll., on stabilization of public budgets (part thirtieth
third, Article. LIV, point 2) and by Act no. 305/2008 Coll. (the word "does not belong") .



VI.g Act no. 131/2000 Coll., on the capital city of Prague, as relevant to the assessment of the proposal


33rd § 53 Sec. 4, first sentence, in which the petitioner suggested
abolish the word "monthly fee for the first three calendar days of temporary work incapacity
not belong," and the word "fourth", read: "(4) vacated council member
capital city of Prague


Monthly fee for the first three calendar days of temporary incapacity

not entitled, for the first three calendar days of quarantine entitled to a monthly remuneration for each calendar day
60% of one-thirtieth of the monthly remuneration and


Fourth calendar day of temporary work incapacity or quarantine
fourteenth calendar day and for the period from 1 January 2011 to 31 December 2013
into the twenty-first calendar day of temporary work incapacity or quarantine
it is entitled to a monthly remuneration for each calendar day
60% of one-thirtieth of the monthly remuneration. "

34th contested provision (in the words" monthly fee for the first 3
calendar days of temporary incapacity ") was inserted into the Act
Act no. 261/2007 Coll., on stabilization of public budgets (part Thirty-fourth
, Art. LVI, point 2) and by Act no. 305/2008 Coll. (the word "does not belong") .



VI.h Act no. 218/2002 Coll., on service of state employees in administrative
authorities and remuneration of these employees and other employees in administrative offices
(staff Act), as relevant for the assessment of the proposal


35th provisions of § 111, first sentence, in which the petitioner proposed to abolish
words "except for the first three days, which are days of service for that
salary during temporary incapacity is not ", reads:" the State
employee who was recognized temporarily unable to perform the services
belongs before 1 January 2014 during the first 21 calendar days after
31st December 2013 during the first 14 calendar days of temporary
inability to perform a service for the days that are days of service, salary
at a reduced rate, amounting to 60%

Except for the first three days, which are days of service for which they pay
case of temporary incapacity is not
. "

36th contested provision (in the words" except for the first three days which are
days of service for which ') was inserted into the Act by Act no.
261/2007 Coll., on stabilization of public budgets (some thirty-fifth, Art.
LVIII) and Act No. 305/2008 Coll. (in the words "salary during temporary inability to work is not
").

VI.ch

Act no. 155/1995 Coll., on pension insurance,
version relevant to the assessment of the proposal

37th provisions of § 65 par. 1, second sentence, in which the petitioner has proposed to cancel
'first three days, after which the salary compensation paid-25c) , and
', reads: "for the purposes of the first sentence after the payment of sickness are also considered
days, after which the sick person does not pay self-employed
which is a participant in the disability insurance according to § 23 of the | || health insurance in the first period of temporary incapacity
or quarantine, and the days after that sickness does not pay due
breach of the regime temporarily incapable insured-25b), and
receive wage compensation shall also be considered

First 3 days, after which the salary compensation paid
^ 25c) and days, after which the salary compensation granted for breach
mode temporarily incapable insured-25d). "
|| | 38. the contested provision (in the words "the first 3 days, after which the refund is not paid wages
^ 25c), and") was inserted into the Act by Act no. 305/2008 Coll.

VII. | ||
constitutionality of the legislative process for the adoption of the contested provisions

39th constitutionality of the procedure for the adoption and promulgation of Act no. 261/2007 Coll., on
stabilization of public budgets, the Constitutional court has already || | previous proceedings. the legislative procedure for the adoption of the Act on stabilization of public budgets
described in Judgment. Nos. Pl. US 24/07
(part VIII) and engaged her in judgment Pl. US 1/08 (paragraph . 83) and finding
Pl. US 2/08 (para. 25 and 26). review the constitutionality and competence
legislative process performed in Judgment. Nos. Pl. US 24/07 (part X)
judgment Pl. US 1/08 (para. 85 and 86) and the judgment Pl. US 2/08 (para. 28 to 32
). the results of this assessment was the conclusion that the Act on stabilization of public
budgets was adopted and issued within the bounds set by
competence and in a constitutionally prescribed manner. In the present case, the petitioner
defect in the legislative process, nor exceeded its constitutionally provided competence
lawmaker objected. The Constitutional Court with regard to the principles of procedural economy
deemed it necessary that question repeatedly
investigate and to that extent refers to the findings and conclusions, as
formulated in the aforementioned findings.


40th Act no. 305/2008 Coll., Amending Act no. 187/2006 Coll., On
sickness insurance, as amended, and certain other
laws, according to the statements of both chambers of the Czech Parliament adopted a properly
conducted legislative process, signed by the appropriate constitutional
and promulgated in the Official Gazette. Constitutional court of
documents available electronically (stenographic records of meetings of both chambers of Parliament
, resolutions and parliamentary and senate publications freely available on
www.psp.cz and www.senat.cz) verifying that the government
bill (Parliamentary print no. 436/0), passed in the Chamber of Deputies three readings
(first reading at the 28th meeting on 12 3. 2008, second reading at the 32nd meeting on 10
. 6. 2008 and third reading at the 34th meeting on 25. 6. 2008), and then
accepted because of the present, 184 deputies voted for the proposal
94, 88 were against the Senate discussed the bill at 15 .
meeting of 17 7th 2008 (Senate Document no. 286/0) and adopted it in the version passed
Chamber of Deputies. Of the 62 present senators voted for the adoption
45 were against the third President of the Czech Republic signed the Act of 6
8. 2008 and 21 8. 2008 was promulgated in the Official Gazette.

41st Also, Act no. 326/2009 Coll., On fostering economic growth and social stability
, according to the Assembly of Deputies adopted
ordinary legislative process. As the Constitutional Court ascertained from the same sources, the proposal
Deputies Jiří Paroubek, Bohuslav Sobotka, Zdenek Skromach,
Milan Urban and others (Parliamentary print no. 743/0)
was debated in the Chamber of Deputies (the first reading at the 54th meeting on 31. 3. 2009, in
second reading at the 56th meeting on 5, 6 and 12. 5. 2009
third reading at the 56th meeting on 15 5th 2009), voted for the draft
82 of the present 89 deputies, one was against.
Senate discussed a proposal for the 8th session on 17. 6. 2009 (Senate Document no. 91/0) of the present
52 senators voted for the adoption of 31 and 12 were against.
Law was delivered to the President, who has exercised his right of him he
Czech Constitution in Art. 50 par. 1 of 9 7. 2009 returned
Law Chamber of Deputies. To remain in the law voted at the 60th meeting on 9. 9. 2009
110 of 101 deputies present, four were against.
Act was signed by the appropriate constitutional officials and promulgated in the Official Gazette on 24
9th, 2009.

42nd The Constitutional Court stated that Act no. 305/2008 Coll. Act no. 326/2009 Coll
. They were adopted and issued within the bounds of constitutionally prescribed
competence and in a constitutionally prescribed manner.

VIII.

Substantive assessment of the proposal

43rd The petitioner argues in its submissions that are largely based on
legal conclusions expressed in its judgment. Nos. Pl. US 2/08 (see above).
This assertion, however - as will be explained below - can not be accepted. Cogent is
In this context, the Senate's statement filed its chairman Milan
Štěch (cf. Paragraph. 6th). To the above behooves moreover added that the adjustment
reducing the employees and other persons appointed by the payment of premiums by
0.1% (reduction was in response to the Constitutional Court decision. Nos. Pl. US 2/08
) was before the effective date of Act No. overcome.
2/2009 Coll., the obligation of employees to pay premiums for sickness insurance canceled
completely. This intervention of the legislature (along with
exemption from the obligation to pay premiums to the state employment policy)
was reduced total rate of social insurance contributions paid by the employee
from 8% to 6.5 ^ 1 ^ 2% of the assessment base ,
the Constitutional court states - without being able to see in the present case, this change
express - that by the end of the waiting period until the 21st day of temporary incapacity
is the current regulation provides employees paid || | compensatory wage employer (cf. the provisions of § 192 et seq. of Law no.
262/2006 Coll., the Labour Code, as amended);
this amount is yet where the average wage is generally higher than the benefits from the sickness insurance
.

44th Finding Pl. US 2/08 (see above), the Constitutional Court annulled
to conflict with the provisions of Article. 30 paragraph. 1 of the Charter, namely the right to adequate
material security during incapacity to work part
§ 15 paragraph. 1, 3 and § 16 of the Act no. 54/1956 Coll., On health insurance
employees who were taken from all employees working

Incapacity or quarantine entitled to sickness benefits for the first three
days of incapacity or quarantine. The Constitutional Court agreed
argument that the health insurance system is based on the insurance
principle, which is intended to protect the insured event, which is in this case
disease (para. 62 and 65), and He criticized the state for which
employees remain for the first three days of sick leave without any means
while their obligation to pay premiums and so-called.
regulatory fees when seeking medical attention, remained intact. For
unacceptable designated to become only demand the fulfillment of obligations
by employees (in the case of premium payment) and ignored
while protecting their interests suffer if the mentioned event in the form of incapacity for work
( paragraph. 63).

45th In the cited judgment, the Constitutional Court also followed up on his
previous case law on social rights [see. Finding sp. Ref.
Pl. US 61/04 dated October 5, 2006 (N 181/43 SbNU 57; 16/2007 Coll.) Or finding
sp. Nos. Pl. US 83/06 (N 55/48 SbNU 629; 116/2008 Coll.)] And gave clear
clear that constitutionally enshrined social rights are not given the wording
Article. 41 paragraph. 1 of the Charter directly applicable
to the same extent as the laws of basic human and political. Article. 41
paragraph. 1 of the Charter, under which the rights referred to in Art. 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, the Constituent Assembly
expressing the belief that the regulation of social rights
is a legitimate subject of political struggles (ie. it 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.

46th In relation to the provisions of Article. 30 paragraph. 1 of the Charter, the Constitutional Court
specifically stated that the constitutional arrangement gives the legislature the power to determine
specific conditions for realization of social rights within the limits outlined by the Charter through
terms "reasonable range", "
necessary to ensure basic living conditions "," adequate material security
"etc. (paragraph 59). Peace observance of these principles is therefore to be considered
regularization (paragraph 56).
The Constitutional Court also held that the specific nature of social rights, especially
dependence on the economic and living standards of the state economy, means that
"once granted claims" not in the case of social rights taken as
static and untouchable (paragraph 68); duty of the state is therefore only
entities to ensure these rights a certain minimum social standards (paragraph 60
). The fundamental difference in the width of the space legislator to clarify his
ideas in the area of ​​economic, social, cultural and
minority compared to other areas of fundamental rights and freedoms while
explicitly formulated by the Constitutional Court in judgment Pl. US 15/02 dated 21 January 2003
(N 11/29 SbNU 79; 40/2003 Coll.).

47th Subsequent case law of the Constitutional Court's approach to social rights
and methodology of constitutional review in this matter further divorced. In finding
sp. Nos. Pl. US 1/08 (see above), the Constitutional Court in accordance with the aforementioned bases
ruled that the provisions of Article. 41 paragraph. 1 of the Charter itself
nature of social law precludes review of their methodology was identical
methodology used in relation to the "classic"
fundamental rights (in particular, contained in Chapter Two of the Charter) as "strict" test
proportionality, the application of which in turn significantly reduces
discretion of the legislature in adopting the law intended
regulate social relations under examination area. With regard to the provisions of Article.
4 par. 4, the Constitutional Court also held that the discretion of the legislature is not
(resp., From a constitutional point of view can not be) nor in
regulation of social and economic rights in a completely unrestricted,
may be subjected to review by the Constitutional court.

48th On this basis it constructed the Constitutional Court
as a methodological tool to examine interference by the legislature in
constitutionally guaranteed social rights called. Reasonableness test.
This test reflects both the need to respect the relatively extensive discretion
legislator, and the need to avoid its possible excesses and consists of the following four steps
:

1) The definition of the meaning and essence of social justice, so its essential
contents.


2) Assessing whether the statute does not affect the very existence of social rights
or actual realization of its essential content.

3) The assessment of whether the statutory framework pursues a legitimate aim; So that is not arbitrary
substantial reduction in the overall standard of fundamental rights.

4) Consideration of whether the legal means used to achieve them
rational (rational), though not necessarily the best, the best, the wisest and most effective
.

49th At this point, the Constitutional Court deems appropriate to note that the above outlined
approach to examining the social and economic rights
take some other constitutional courts in countries in which protection of economic and social rights
constitutionally enshrined (a comparative
view it mainly on the country's southern, central and eastern Europe, respectively. for countries whose constitutions
been accepted in the eighties and nineties of the 20th century).

50th The Constitutional Court in this context refers example.
To the jurisprudence of the Polish Constitutional Tribunal, which refused to apply the "strict" test of proportionality
social rights, despite fairly explicit editing
limitation of fundamental rights and freedoms in the Polish Constitution (according to Article .
31 paragraph. 3: "Constitutional rights and freedoms may be restricted only on the basis
law, and only in the event that these measures are in
democratic country urgently needed to protect its security
or public order or for the protection of the natural environment, health or public morals
, or the rights and freedoms of other persons. Such limitations shall not violate the essence
rights and freedoms. "). He noted the same time - as now
Constitutional Court - that the issue of restriction of social rights
whose regulation is primarily the domain of the legislature, can be applied only
second sentence of the quoted provision under which such restrictions may not violate
the nature of rights (cf.. finding the Polish Constitutional Tribunal of
24 2. 2010, Ref. No.. K 6/09, point 8. 2, available at
www.trybunal.gov.pl).

51st According to the provisions of Article. 89 para. 2 of the Constitution, the Constitutional Court in the present case
bound to judgment Pl. US 2/08 and the judgment Pl. US 1/08. When
note of this commitment by the Constitutional Court had to primarily take into account the context and consequences
now contested legal provisions were different from the present situation
in proceedings under file. Nos. Pl. US 2/08; it was not possible
conclusions made therein without further and mechanically (as requested
petitioner) to take a decision in the present. Differences between now
petitioner criticized adjustment and adjustment of canceled judgment Pl. US
2/08 could therefore not be left open for review; in the framework of the Constitutional Court
- taking into account the conclusions resulting from the judgment Pl. US 2/08 -
contested statutory provisions underwent tests, the methodology and scope
been in law of the Constitutional Court judgment Pl introduced. US 1/08.

52nd Although the judgment Pl. US 2/08 (see above) reasonableness test in that
explicit form was not used, there are the criteria applied.
It is evident already in para. 63 of this judgment, according to which: "Changing
provisions of § 15 paragraph. 1 and 3 and § 16 of Act no. 54/1956 Coll., On health insurance of employees
, as amended acts, removes all employees
incapacity or quarantine entitled to sickness benefits for
first three days of incapacity or quarantine. This is a somewhat
convenient to arbitrary action by the state, which
due to an indeterminate number of sickness allowance abusers
affects all categories of employees. the result is a state where the vast majority of employees remains
for the first three days of sick leave without any means
while their obligation to pay premiums | || remained intact. of course, remained unaffected and their obligation to pay '
. regulatory charges when seeking medical attention.
It is unacceptable that the state only demand the fulfillment of obligations by
employees (in this case the payment of insurance premiums ), and ignored
while protecting their interests suffer if the mentioned event in the form of working
incompetence. "

53rd It follows that the Constitutional Court considered that the condition in which it was in
under sickness insurance for an indeterminate number of
sickness benefits canceled health benefits for the first three days of incapacity
all eligible while leaving
their obligation to pay premiums as irrational, arbitrary and

Unjust, therefore prism of judgment Pl. US 1/08 being in conflict with the requirement of rationality
contained in the fourth step, the test of reasonableness.
With regard to that, the Constitutional Court focused in particular on those aspects
contested statutory provision which, in judgment Pl. US 2/08 led to
derogation had contested modifications, using a test specifically
judikovaného judgment Pl. US 1/08.

54th The first step in the review of this test is to define the meaning and essence
social justice in the case at
right to adequate material security during incapacity to work under Art.
30 paragraph. 1 of the Charter. In general, the essence and purpose (core)
this right to ensure a minimum standard of tangible
a sufficient to lead a dignified life in cases where
employee is not eligible to procure due to illness livelihood
own work .

55th The obligation of the state to ensure this standard is not, however, from a constitutional perspective
seen as an obligation to provide individuals with social benefits in
possible (in economic terms) the extent, but only as a duty
ensure that the amount, frequency and nature of these transactions secure
already mentioned social standard. Whether and under what conditions
performance provided further, going beyond this standard depends fundamentally
(ie. Excluding violation of the rules set out in the following steps
test) at the discretion of the legislature, in which the Constitutional Court | || not entitled to enter. This conclusion, moreover, the Constitutional Court had already arrived and
in a derogative judgment Pl. US 2/08 (see above), which provides: "It
no doubt that the Charter binds social rights
state to take positive actions to ensure the protection of these rights. The content of this
state's obligation is to ensure that these entities
rights of certain minimum social standards, and not adequate standard of living in accordance with their requirements
how these entities sometimes mistakenly perceived and
required. "

56th It can not therefore be concluded [or the opposite of judgment Pl. US 2/08
does (see above)] that the essence and purpose of this law was
introduction or a way to set up health insurance system, or
that was once achieved by standard material security
irreducible (para. 68 of judgment Pl. US 2/08).

57th It follows that the specific parameters of the system (ie. Eg.
Maturity benefits, some, especially the procedural conditions for entitlement
etc.). Constitutional Court's opinion can not be fundamentally at the core rights under Article
. 30 paragraph. 1 of the Charter considered; Setting these parameters
legislature is in line with Article. 41 paragraph. 1 of the Charter. Otherwise it would have been
only if certain legal parameters fixed
security during incapacity to work [among which includes the (un)
introduction of the waiting period] totally exclude employees from the right to achieve
a sufficient standard minimum tangible to lead a dignified life
. However, that is not the case here (cf..
Next step test).

'58. The Constitutional Court also notes that the contested regulation is not inconsistent with
Constitutional Court established the concept that a disease is similar to
insured event. In this context, we agree with the statement of the Government
extent that minor injury in the insurance system alone carries the insured and the insurance system
it only insures a certain extent from the injury (cf. Point
10th).

59th In the second step of the test, the Constitutional Court assesses whether the challenged statutory regulation
deny the very existence, essence or meaning
constitutionally guaranteed social rights. Article. 41 paragraph. 1 of the Charter because
having regard to the provisions of Article. 4 par. 4 does not by itself
interpreted as allowing through statutory regulation constitutional guarantees completely negate
; Otherwise, the constitutional regulation of social rights
lacked any practical sense. The unconstitutional act consisting in violation
nature and meaning of the right to adequate material security in
incapacity to work but in this case occurred.

60th The contested legislation introduces a so-called. Waiting period in the duration of three days, three days
while revenue shortfall undoubtedly represents a certain intervention
into income of the persons concerned, but not (with regard to further guaranteed
included in the social security law) for such intervention, which would
onemocnělým persons immediately made it impossible to achieve substantive standard

A sufficient to lead a dignified life; In other words, no such adjustment
character throttling effect; temporarily sick expose
impasse, respecting at the same time retaining the character test
adjustments, as was highlighted in judgment Pl. US 2/08 (see above).

61st It should also be noted that the overall social situation
temporarily ill persons have a positive effect in addition to the abolition of the obligation to pay employees
sickness insurance and state employment policy
(with effect from 1 1st 2009) also the fact
that since the end of the waiting period until the 21st day of temporary work incapacity
employees paid salary compensation by the employer;
While this amount is regularly higher than the benefits from the sickness insurance
. In the case of temporary incapacity longer
so the initial three-day loss of income compensated.

62nd In the Constitutional Court also contested provisions
pursue a legitimate aim of reducing the abuse of sickness benefits.
This statement implicitly already apparent from the reasoning of Judgment Pl. US 2/08,
in which the Constitutional Court did not question the legitimacy of the proclaimed goals (restrictions
abuse of sickness benefits), but the procedure that to achieve this objective
legislator used (cf. Paragraph. 63: "This is a
somewhat comfortable and even arbitrary action by the state, which due to an unspecified number
sickness allowance abusers
affects all categories of employees. the result is a state where the vast majority of employees
stays during the first three days of sick leave
without any resources, while their obligation to pay premiums
remained intact. ").

63rd It remains to answer the question whether the contested provisions
to achieve this goal by rational means. The judgment Pl. US 2/08
(see above), the Constitutional Court came to the conclusion about the irrationality and injustice
if the contested regulation. Now under review
statutory provision is however crucial constitutional complaints contained in the cited
finding respond adequately and are therefore eligible to go through the fourth
step reasonableness test.

64th Relevant difference between rationality now contested modifications and adjustments
repealed by a judgment Pl. US 2/08 (see above) sees the Constitutional Court
fact that Act no. 2/2009 Coll., Which amended Act no.
187/2006 Coll., With effect from 1st 1st
2009 abolished the obligation of employees to pay premiums for health insurance.
Contested provision therefore does not establish - as noted above - and paradoxical
Constitutional Court criticized the state for which the state due to an unspecified number
sickness allowance abusers
affected all categories of employees, the majority of which should remain for the first three days of incapacity
without any means, while their
obligation to pay insurance premiums remains unaffected. Another not insignificant difference
newly enshrined the right of employees to salary compensation in
temporary incapacity and canceling their obligation to pay premiums for
government employment policy (cf. Paragraphs 43 and 61).

65th It concluded that the introduction of the waiting period is in itself (ie. Not
eg. In connection with the previously criticized while maintaining the obligation to pay premiums
) "reasonable" and even in the European context, the usual measure leads
fact the Institute is recognized as the
international law and in national rules in many states.
In this context, reference may be made eg. The provisions of Article. 26 paragraph. 3 of the Convention
ILO. 130 of curative and preventive care and
Sickness Benefits (no. 537/1990 Coll.) Or on . Article 18 of the European
social security Code (no. 90/2001 Coll. ms). Both of these adjustments
use of the waiting period - a maximum duration of three days - allow.
According to the comparative tables in the system MISSOC (Mutual Information System on Social Protection
- common information system of social protection

tables available athttp: //ec.europa.eu/employment_social/missoc/db/ public / COMP
reTables.do? lang = en), which are known to the Constitutional court of the official activities
is the introduction of the waiting period in the European countries, a relatively common phenomenon. The three-day waiting
(resp. Waiting) time so you can meet in Greece
Estonia, France, Italy, Austria, Portugal, Spain, Ireland,

Switzerland, the UK and also in Malta and Cyprus, while in some other states
anchored waiting period in a different length.

66th The conclusion of unreasonableness or arbitrariness perhaps even mooring
Institute of the waiting period would be in the European context
completely unsustainable, respectively. it could be justified only specific aspects
[eg. setting the obligation to pay after a qualifying period
insurance, as in the case of modification canceled findings sp. Nos. Pl. US
2/08 (see above)]. Such aspects has been the case here given
not.

IX.
Summary


67th The Constitutional Court therefore concludes that the legal anchoring
three-day waiting period associated simultaneously with an exemption from the obligation to pay employees
sickness insurance and the state employment policy,
is an unconstitutional restriction on the right to unemployment benefits during incapacity
to work guaranteed by the provisions of Article. 30 paragraph. 1
Charter. The constitutional arrangement of this fundamental social rights because lawmakers
leaves relatively (though not unconditionally)
wide field of competence when it comes to setting the legal parameters (
provisions of Article. 41 paragraph. 1 in conjunction with Art. 4 par. 4).

68th Rules contested passes the test of reasonableness, which is a measure
when reviewing the constitutionality of the rights enumerated in Article. 41 paragraph. 1
Charter, it does not impinge on the core substantive rights
security during incapacity to work, pursues a legitimate aim if
achieve this chosen rational and not arbitrary means.

X.

69th For the above reasons the Constitutional Court granted the petition under § 70 paragraph
. 2 of the Law on the Constitutional Court was rejected by him.

Chairman of the Constitutional Court:

Pp. Pavel Holländer, vr
Vice


Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took the decision of the plenum judges Jan Musil and his
reasoning Judge Pavel Holländer.

1) § 7 para. 1 point. b) Act no. 589/1992 Coll., on premiums
social security contributions and the state employment policy,
amended on the date of promulgation of judgment Pl. US 2/08:

"Premium rates paid from the assessment base

a) ...

b) employees at 8%, of which 1.1% for health insurance, 6.5% | || pension insurance and 0.4% for the state employment policy.
... "

2) § 7 para. 1 point. b) Act no. 589/1992 Coll., on premiums
social security contributions and the state employment policy,
amended effective now and in the time of the application:

"Premium rates paid from the assessment base

a) ...

b) employees at 6.5% of the assessment base. ..."