In The Matter Of The Application For Revocation Of Section 202 Of The Ods. 2 Of Act No. 65/1965 Coll.

Original Language Title: ve věci návrhu na zrušení § 202 ods. 2 zákona č. 65/1965 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=47968&nr=192~2F1999~20Sb.&ft=txt

192/1999 Coll.



FIND



The Constitutional Court



On behalf of the United States



The Constitutional Court ruled on 16. June 1999 in the plenary on the proposal of the district

the Court in Karviná to repeal section 202 paragraph. 2 of Act No. 65/1965 Coll., code

work, as amended,



as follows:



The proposal is rejected.



Justification



(I).



The Constitutional Court has received 17 May. February 1999 proposal for the District Court in Karviná

the repeal of § 202 paragraph. 2 of Act No. 65/1965 Coll., the labour code, as amended by

amended, (hereinafter referred to as the "labor law"). That Court

Discusses under the SP. zn. 20 C 213/97, dispute between the M. D. and OKD a. s. Ostrava

for compensation for survivors of costs under section 199 of the labour code.



The applicant in the proceedings before the general courts were established after the death of

her husband's cost recovery for survivors of up to 6 922

CZK. At the date of death of the husband was the appellant calculated the compensation in the amount of 2

$ 542 a month because her income, disability and survivor's pension,

amounted Eur 4 380. As a result of the indexation of pensions is

odpočítávaná the amount of her income increases and cost recovery on food

reduces, so currently amounts to just $ 122 a month.

The appellant does not agree with the calculation of the refund mechanism, and it

mainly due to the increase of living expenses. In its opinion, would

the respondent did not take into account the indexation of the income, or should

to proceed by analogy with valorizačních legislation paying for the

compensation for loss of earnings pursuant to section 195 of the labour code.



The District Court in Karviná, by judgment of 2 July 2002. action in its December 1997

entirety, and pointed to the section 202 paragraph. 2 of the labour code and on the

follow the indexation provisions, which provide for the possibility of adjusting the amount of the

and how refunds only for loss of earnings after the end of the work

incapacity resulting from an accident at work or occupational diseases, but

not for survivors costs pursuant to § 199 Penal Code

work.



The regional court in Ostrava, Karvina District Court judgment by order of

17 May. September 1998 and returned the case for further proceedings. The only

the reason for the cancellation of the judgment, it was found that the District Court in Karviná

things did not deal in terms of the possible breach of legislation with the Constitution

The Czech Republic (hereinafter referred to as "the Constitution"). According to the Court of appeal is section 202

paragraph. 2 of the labour code the empowering provisions for the Government to adjust

the amount and conditions of compensation for loss of earnings payable to

employees after termination of incapacity for work resulting from an accident at work

or occupational disease, and taking into account the changes that have occurred in the

development of wage levels. Within this enabling provision of Government

valorizačních issued a series of regulations governing the terms and conditions and the amount of adjusted

compensation for loss of earnings after the sick leave by

carried out a valuation of the average earnings applicable to the calculation of this

the refund. In relation to compensation for survivors costs pursuant to § 199

the labour code, however, such legislation does not exist. Leads to

the paradoxical situation where hidden inflation, and on the basis of indexation

pensions for survivors of reimbursement of costs pursuant to § 199 Penal Code

work actually decreases and reaches a completely negligible values. At the same time

so occurs to significant disproporcím between approve of employees

substitute for loss of earnings after the sick leave pursuant to section

195 of the labour code as opposed to compensation for survivors pursuant to § 199 Penal Code

the work, even if this is happening consistently on the basis of compensation for accidents at work

or occupational diseases.



The District Court in Karviná is identified with that argument, the Court of appeal and in the

its proposal submitted to the Constitutional Court stated that the purpose of the purpose of the regulations

on the adjustment of compensation for loss of earnings after the end of the work

incapacity, issued on the basis of § 202 paragraph. 2 of the labour code, is

to ensure the real value of the compensation for loss of earnings after the end of

incapacity for work for the duration of the claim on her, IE. to ensure

the employee was for the duration of the entitlement to such odškodňován

average earnings, the amount of which corresponds to the change of wage conditions in the

economy. Likewise, it appears desirable to ensure the real value of the refund

the cost of the survivors. It would have been so consistently respected the constitutional

the principle of equality. The principle of equality means that no group of citizens or

solo travellers were given favourable treatment or must not be discriminated against, whether

accepted by the legislation, or in the exercise of State power. Due to the

the existing section 202 paragraph. 2 of the labour code, to which citizens favours

a refund pursuant to section 195 of the labour code, as opposed to the citizens, to whom the

a refund pursuant to section 199 of the labour code, proposes to the district

the Court in Karviná, that this provision as unconstitutional the Constitutional Court annulled.



II.



According to § 42 para. 3 of Act No. 182/1993 Coll., on the Constitutional Court, as amended by

amended, and section 69 of the same law, the Constitutional Court sent a proposal for a

The Chamber of deputies of the Parliament of the Czech Republic for an opinion.



The Chamber of deputies in its observations, have reasons that led

the legislature regards access to the valorisation of the average earnings in

both institutes compensation as follows:



When compensation for loss of earnings after the temporary work

the inability of an employee who has suffered a work-related injury or

the occupational disease, are entitled to compensation for loss of earnings,

If it occurred after an industrial accident or disease detection

the profession of a decrease in earnings, since the essence of the indemnification is a material

alleviate the injury happened and the manifestation of the employees are

rather, the longer-term or permanent damage. For this reason, shall take the

the importance of the fair value of compensation, and it is therefore necessary to prevent its

reducing the influence of inflation by regular valorizacemi. Institute refunds

the cost of the survivors also monitors the alleviation of material injury

but not the employees, but survivors, to which the deceased gave

or was obliged to provide. A distinctive feature of this

the Institute is the need to provide physical security of survivors

immediately at the time of the loss of their breadwinner, as a sudden change in the ratios

nutrition and provision of assurance households such measures

requires. However, as it gradually consolidate social networks

survivors, including regular increase in pension benefits

insurance, material security of the page fades into the background and

ceases to have the character of an immediate securing of survivors. Because

the pensions provided to survivors of deceased employees-

wage earner are regularly subject to an adjustment, no need other

regular indexation of valorisation, and average monthly earnings from

which the amount of the refund when you calculate the cost for survivors

It is based on.



The Chamber of Deputies is of the opinion that a differentiated approach to valuation

average monthly earnings for the Institute of compensation for loss of earnings

After the sick leave or in recognition of invalidity or

partial invalidity and Institute a reimbursement for survivors

It is factual in nature, and is not due to differences in access to one group

citizens from the other.



At the conclusion of their representation of the Chamber of Deputies indicated that the contested

the provisions of the labour code has been approved by the required majority of members

the legislature is duly published, and that the legislature has acted

in the belief that the provision is adopted in accordance with the Constitution, the constitutional

policy and law. The Chamber of deputies to the constitutional

Court to examine the constitutionality of the contested provisions and issued the relevant

decision.



The constitutional complaint is also expressed at the request of the Constitutional Court according to the

the provisions of § 48 para. 2 Act No. 182/1993 Coll. of the Ministry of labour and

Social Affairs, which stated that the claim for compensation for loss of earnings

After the termination of incapacity for work caused by an accident at work or

occupational disease pursuant to § 193 para. 1 (b). a) and section 195 of the labour code

has the other legal conditions that each worker, if

It occurs as a result of an accident at work or an occupational disease to drop

earnings. The affected section 202 paragraph. 2 of the labour code is empowering

the provisions for the Government to give due to changes that have occurred in the development of

wage levels, could issue regulations, which establish the conditions, amount and

the way of compensation for loss of earnings payable to employees after

termination of incapacity for work resulting from an accident at work or occupational disease

the profession. Since 1976, a total of eight have been issued government regulation, no.

138/1976 Coll., no 60/1982 Coll., no 191/1993, no. 266/1994 Coll., no.

291/1995 SB., no. 298/1996 Coll., no 318/1997 and no 320/1998 Coll., when

the last three were released in accordance with § 447 paragraph 2. 3 of Act No.

40/1964 Coll., the civil code, as amended, (hereinafter referred to as

"civil code"). According to the Ministry of labour and Social Affairs

Therefore, all employees who have suffered an accident at work or for which the

occupational disease, subject to other legal conditions


the same right to compensation and are therefore in accordance with article 1 of the Charter

fundamental rights and freedoms ("the Charter") in this direction are equal.



The claims of survivors after an employee who as a result of an accident at work

or occupational disease died, are covered in section 197 of the labour code.

Some of them are basically the same as the claims that it has damaged the

an employee, for example. a replacement reasonably incurred costs associated with

healing, compensation for damage, others belong only to some survivors,

for example. reimbursement of reasonable costs associated with funeral expenses, reimbursement of costs

for survivors or one-time compensation to survivors.



The fact that the Labour Code distinguishes the individual recipient of the refund

damages due to an accident at work or an occupational disease and compensation

only employees, for example. compensation for the pain and make it more difficult

social application, while the other claims admits only survivors,

for example. one-time compensation, does not raise, according to the Ministry of labour and

social inequality. The compensation granted to each group

damaged, injured employees, therefore, on the one hand, and the survivors

post them on the other hand, is to be assessed in the entire complex. For example, the

the surviving child represents a one-time compensation in addition to the orphan's pension

the pension amount to at least € 1,000, while an employee who has suffered

an accident at work and is in receipt of an invalidity pension and compensation for loss of earnings,

No "extra amount" is not granted. If the proposal points to a

the fact that as a result of the raising of the survivors ' pensions (widows ',

're talking widow or orphans ') occurs for the bereaved to reduce refunds

the cost of survivors, the Ministry of labour and Social Affairs

notes that the same situation occurs even for employees who receive

compensation for loss of earnings after the incapacity resulting from

an accident at work or an occupational disease, in the case that there is a

the increase in full or partial disability pension or to increase

earnings after injury. At the conclusion of his observations of the Ministry of labour and

Social Affairs pointed out problems related to the application of § 199 para. 2

the labour code in judicial practice. According to this provision, the reimbursement of costs

on nutrition for all survivors may not in total exceed the amount that would

the deceased is entitled to compensation for loss of earnings pursuant to section 195 of the code

work. According to the decision of the Supreme Court of CZECHOSLOVAKIA published in the bulletin

The Supreme Court of CZECHOSLOVAKIA under no. 16/1987 is entitled to reimbursement of the cost of

survivors of an entitlement derived from the entitlement of the employee, who suffered

an accident at work, with a change of circumstances on the part of the injured party should be in

the context of this claim be considered a change in scope of competences and

employee option, if it survived an accident at work, provide costs

for survivors. The Ministry of labour and Social Affairs shall not preclude

that in the interpretation of § 199 para. 2 of the labour code is meant to be based on the

the increased average earnings applicable to the calculation of compensation for loss

earnings for the purposes of reimbursement of the costs for survivors.



The Ministry of labour and Social Affairs, pointed out in its observations on the

the fact that a similar mandate as in § 202 of paragraph 1. 2 of the labour code contained

in § 447 paragraph 2. 3 of the civil code, which also allows you to only release

Regulation governing the amount of compensation for loss of earnings or

invalidity benefits, as well as that under section 448 of the civil code replacement

the cost of the food belongs to the bereaved and in the calculation of compensation is based on

of the average earnings of the deceased. In case of cancellation 202 paragraph §. 2

the labour code would create a serious inequality between damaged, which is the

refund for loss of earnings pursuant to section 195 of the labour code, and

damaged, which is the compensation provided under section 447 of the civil

code, because the Government would be empowered to issue regulations to increase refunds

for loss of earnings to the citizens odškodňovaným under the civil code,

While employees who have suffered an accident at work or for which the

occupational disease, would increase the compensation for loss of earnings

could not. Since 1996, is issued only one Ordinance

increase as those granted under the labour code, as well as the refund

provided under the civil code. Of all the reasons given

holds the Ministry of labour and Social Affairs, the view that § 202 paragraph. 2

the labour code does not conflict with the principle of equality, and with a proposal for its

cancellation of fundamentally disagrees.



III.



Conditions, amount and method of compensation for loss of earnings

pertaining to the workers after the incapacity resulting from

an accident at work or occupational diseases was incorporated into the labour code

Act No. 20/1975 Coll., amending, and complement some of the changed

the provisions of the labour code, as paragraph 2 of section 202. This provision was

amended by Act No. 187/1988 Coll. and Act No. 3/1991, and then

It was with effect from 31 December 1999. July 1991 repealed by Act No. 297/1991 Coll.,

on the adjustment of compensation for loss of earnings after the incapacity

resulting from an accident at work or occupational diseases. Law No. 37/1993.

the labour code was again added to § 202 paragraph 2 worded as follows:

"The Government of the Czech Republic may, because of the changes that have occurred in the development of

wage levels, to modify the terms, amount and method of compensation for loss

earnings pertaining to the workers after the sick leave

resulting from an accident at work or an occupational disease. "



This provision came into force on 1 May 2004. January 1993. It can be concluded that the

adopted and published within the limits of constitutionally established competence and constitutionally

in the prescribed manner (section 68, paragraph 2, of Act No. 182/1993 Coll.), because of the

těsnopiseckého transcript reports on 16. the Czech National Council meeting held

in the days of 20. up to 22. December 1992 showed that law No. 37/1993 Coll., on the

changes in the health and social security, and some

labour legislation, was adopted on 22 November. Whereas it is necessary

a majority (104 MEPs were in favour, none against) and published in the

amount 11/1993 Coll. sent out by March 31. December 1992.



IV.



According to § 197 paragraph. 1 (b). (c)) of the labour code is to institute a reimbursement

for survivors of an allowance paid by the employer to the bereaved as

one of liability as a result of the death of the employee's performance as a result of

an accident at work or an occupational disease. The provisions of § 199 Penal Code

work then sets out the range of beneficiaries, the method of calculation of the compensation and

the relationship of the reimbursement of costs for survivors pension benefits

the security provided for the same reason.



The basic question that was the Constitutional Court when considering the proposal for the

repeal of § 202 paragraph. 2 of the Labour Code obliged to tackle is whether by

the empowering provision, the legislature created the space for the valorisation of the

compensation for loss of earnings payable to employees after the end of

incapacity for work resulting from an accident at work or occupational diseases,

did not infringe the constitutional principle of equality, if to do so also in the case of

reimbursement of costs for survivors.



Answering this basic question depends on an assessment of whether between §

195 of the labour code governing the compensation for loss of earnings

associated employees after the end of incapacity resulting from

an accident at work or occupational diseases and section 199 of the labour code

governing the reimbursement of costs for survivors there are correlational

the correspondence, in other words, if both of these claims have a particular

common denominator enabling application and respect for the principle of

equality. In the opinion of the Constitutional Court no such correlative correlation

the two claims is evident. On the basis of both of these claims is

binding to the employment relationship (general validity is limited only to certain

exceptions) and the resulting from an accident at work or an occupational disease,

that has resulted in a decline in the earnings of employees involving it itself

or in the case of his death, the survivors are dependent on it. Entitled to

reimbursement of costs for survivors pursuant to § 199 of the labour code is

derived from the same incident, which entitles him to claim the

compensation for loss of earnings after the incapacity for work pursuant to section

195 of the labour code, when just in the calculation of such refund shall be expressly

refers to section 195 of the labour code, specifically then at § 195 para. 4

of the labour code. In other words, survivors are not only compensated

because the one who died, they contribute on their nutrition, but right from the

the reason that this person died as a result of an accident at work or

occupational disease, i.e., in circumstances where there was objectively arising

employer's responsibility for the damage pursuant to section 190 paragraph. 1 of the labour code,

objectively formed precisely because an employee is during the working

the process exposed to certain risks, possibly affecting (i)

the fates of the other members of his family. The opinion of the Constitutional Court in this

the context of the case-law of the general respect of the courts, according to which the right to

reimbursement of costs for survivors is an entitlement derived from the claim


a worker who has suffered an accident at work (judgment in NS CZECHOSLOVAKIA SP. zn. 6 Gb

18/83), when in the past not to alter the legislative concept

both refunds or to change the interpretation of judicial or doktrinární.

The decision implies the need to unwind the amount of compensation

the cost of survivors and from changes in the range of capabilities and

the option of the worker, if it survived an accident at work, provide costs

for survivors. There is no doubt that such a change is the increase

wages as a result of its valorisation.



Voucher of the Ministry of labour and Social Affairs that the compensation

provided by each group of victims, i.e. the injured party

employees on the one hand, and their survivors, on the other, it is

to be considered in the entire complex, is undoubtedly necessary, as in the

in some cases, these refunds apply only to one of the listed

social groups without there existed room for claims second

social groups. However, can hardly agree to this

Ministry of akcentujícím the role and importance of unilaterally one-time

compensation to survivors, and even in that direction, that this entitlement is

placed in a relevant connection with the reimbursement of nutrition when

It is at the same time emphasized that no such "extra"

on the contrary, provided employees are not. In the opinion of the Constitutional Court may be

Indeed, hardly any doubt about this claim on a single

compensation embodied in § 197 paragraph. 1 (b). (d)) of the labour code has next to the

material and imateriální Overton subtext that conveys the loss of loved ones

persons participating to the survivors, family relations, and not only

"my earnings". Also, you cannot agree with the opinion of the

the Chamber of Deputies, according to which the characteristic feature of this Institute, IE.

reimbursement of costs for survivors, it is necessary to provide the material

Security survivors immediately at the time of the loss of their breadwinner,

and, as they gradually consolidate social networks are survivors,

the material for this page security recedes into the background, and will cease to have

the nature of the immediate securing of survivors, and also with

taking into account the regular indexation of pensions for surviving dependants. The concept of

"imminent" does not in fact in the provisions establishing such claims

support at all (really any material changes in the circumstances of the injured party, and

its impact on the victim is projected and claim § 202 paragraph. 1

of the labour code), and also a link to the indexation of pensions for surviving dependants with regard

totally party spirit and purpose of the compensation provided by the pursuing

actual damages corresponding to the real existing at the time

economic circumstances.



The Constitutional Court of the Czech Republic in a number of its decisions interpreting the contents of the

the constitutional principle of equality. To associate himself in them [and in particular in the

findings in cases conducted under the SP. zn. PL. ÚS 16/93 (TC, 1, 194-195,

205-206), pl. TC 36/93 (TC, 1, 179), pl. ÚS 5/95 (TC, 4, 218), pl. ÚS

9/95 (TC, 5, 137)] with the understanding of the constitutional principle of equality, as it was

expressed in the Constitutional Court of the Czech and Slovak Federal Republic (TC

Czechoslovakia, 1992, R 11): "it is certainly the stuff of the State, in order to ensure their

features decided that a certain group will provide fewer benefits than others. Or here

However, you must not proceed completely arbitrarily. ... If the law specifies the benefit

one group and at the same time lays down the obligations of the other, may be disproportionate to

only with reference to public value. " The Constitutional Court in this

He refused the absolute understanding of the principle of equality, whereby also noted:

"equality of citizens should not be understood as an abstract category, but as a

relative equality, as they have in mind all the modern Constitution "[PL. ÚS

36/93 (TC, 1, 179)]. The content of the principle of equality has moved into the area by

constitutional aspects of the differentiation of the bodies and the concept of rights.

The first aspect, therefore, sees in the exclusion of arbitrariness.



Second, it is apparent from the legal point of view expressed in the report in case

conducted under the SP. zn. PL. ÚS 4/95 (TC, 3, 209): "inequality in social

relations, in order to affect the basic human rights must reach the

intensity, casting doubt, at least in a certain direction, already the very essence of

equality. This is usually done when there is a violation of the equality

linked to violations of other fundamental rights, for example. the right to own

assets according to the article. 11 of the Charter of fundamental rights and freedoms, one of

political rights according to art. 17 et seq. Of the Charter ... ...., etc. " [shodněPl.

TC 5//95 (TC, 4, 217-218)]. The second consideration when assessing

the unconstitutionality of the legislation establishing the inequality is therefore this

based prejudice one of the fundamental rights and freedoms.



On the basis of the existing interpretation of the constitutional principle of equality, the constitutional

the Court, as well as relevant provisions of prior analysis code

work between 195 of the Penal Code § governing compensation for loss

earnings associated employees after the sick leave

resulting from an accident at work or occupational diseases and section 199 of the labour code

governing the reimbursement of costs for survivors there are

comparability to allow application and respect for the principle of equality.

The Constitutional Court did not find between the institutes constitutional

acceptable terms distinguish between the subjects and the rights. In the absence of

indexation of compensation costs for survivors while the indexation of compensation

for loss of earnings after the end of it to employees working

incapacity resulting from an accident at work or occupational diseases, therefore,

sees the violation of the constitutional principle of equality within the meaning of the exclusion

arbitrariness in distinguishing between entities and rights.



The Constitutional Court in the proceedings on the revocation of laws or other legislation

is based on the principle of the priority of constitutional interpretation before the Conformal

the derogations, which in a situation in which certain provisions of the legislation

allows two different interpretations, one is in accordance with the constitutional

laws and international treaties under article. 10 of the Constitution, and the second is with them

on the contrary, is not given a reason for the cancellation of the provision. When its application

It is the task of all State bodies to interpret the provision constitutionally

Conformal manner [see findings in matters SP. zn. PL. ÚS 48/95 (TC, 5,

171) and PL. ÚS 5/96 (TC, 6, 203)].



In this case, therefore, dealt with the question if it is given a space for

constitutional interpretation of § 202 paragraph. 2 of the labour code, which would

respect the principle of equality between the institutes of compensation for loss

earnings associated employees after the sick leave

resulting from an accident at work or occupational diseases and compensation of the cost of

survivors.



According to § 202 paragraph. 2 of the labour code, the Government may due to changes that

occurred in the development of wage levels, to modify the terms, amount and method

compensation for loss of earnings payable to employees after the end of

incapacity for work resulting from an accident at work or occupational diseases.

The said legal warrant, therefore, allows the Government, by regulation, for example,

compensation for loss of earnings payable to employees after the end of

incapacity for work resulting from an accident at work or occupational diseases.



The mechanism of determining the total amount of compensation for survivors of the

Yet according to § 199 para. 2 of the labour code depends on the determination of the amount, to the

that the deceased is entitled to compensation for loss of earnings under section 195

the labour code, which is referred to in § 202 of paragraph 1. 2 of the labour code

valorizována (if the Government has its legal mandate

will use). The link referred to the provisions of § 199 para. 2, section 195 and 202

paragraph. 2 of the labour code then leads to a constitutionally compliant interpretation of section 202

paragraph. 2 of the labour code, according to which the indexation of compensation according to § 195 of the code

the work is in accordance with § 199 para. 2 of the labour code results in an increase in

defining the amount to pay the costs for survivors.



That conclusion can support and by pointing out the difference in determining the amount of

compensation for loss of earnings and costs for survivors.

Compensation for loss of earnings shall be rigorously

calculation (section 195 of the labour code) odvisícím from accurately quantified

parameters, with the result that it is possible to directly edit the valuing. On

the difference from it cost recovery for survivors is determined by a number of

aPriori exactly quantifiable, the discretion that require parameters

(as is the case with the Institute of maintenance in civil law), in

the result is reasonable, for example, only the total amount for compensation

the cost of the nutrition for all survivors. Thus the meaning of interpretovanému and

the purpose of the analysed both legal institutions is also constitutionally

Conformal interpretation of § 199 para. 2, § and § 195 para. 202 2 code

work.



In a situation where the Constitutional Court came to the conclusion about the possibility of a constitutionally

Conformal interpretation of § 202 paragraph. 2 of the labour code, left him, than

the design of the District Court in Karviná, on the repeal of this Statute

reject.



The President of the Constitutional Court:



JUDr. Kessler v. r.