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On The Proposal To Repeal § 32 Act No. 155/1995 Coll.

Original Language Title: ve věci návrhu na zrušení § 32 zákona č. 155/1995 Sb.

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341/2007 Coll.
FINDINGS


Constitutional Court
On behalf of the Czech Republic


The Constitutional Court ruled in the composition of Stanislav Balik (Rapporteur)
Frantisek Duchon, Vlasta Formánková, Vojen Güttler, Ivana Janu,
Vladimir Kurka, Dagmar Lastovecká, Jan Musil, Jiri Nykodým, Paul
Rychetský Miloslav Vyborny, Elizabeth Wagner and Michael Židlická in
on the proposal of the Supreme administrative court, which is JUDr. Miluše
Došková, to annul § 32 of Act no. 155/1995 Coll., On
pension insurance, as amended,

Follows:

The petition is denied.
Reason


I.

Definition matter and recapitulation draft

L. On 25. 10. 2004 the Constitutional Court received a petition from the Supreme Administrative Court
, represented by JUDr. Miluše Došková (hereinafter
"petitioner"), pursuant to the provisions. § 64 par. 3 of Act no. 182/1993 Coll., On
Constitutional Court, as amended (hereinafter the "Act on
constitutional court ") to annul § 32 of Act no. 155/1995 Coll., on
pension insurance, as amended (hereinafter the" Act on pension insurance
").

Second The present petition was filed in connection with deciding
petitioner on appeal, the applicant EP against the defendant, the Czech Social Security Administration
against the judgment of the Regional Court in Ostrava of
13th 11th 2003 ref. 21 Cad 79 / 2003-18, dismissing the action against the decision
Czech Social Security Administration of 24. 4. 2003, no.
480 928 418, dismissing the applicant's application for a retirement pension for non-compliance
the provisions of § 31 and § 32 par. 3 of the pension insurance
. Thing is at the petitioner's file no. Ref. 2 Ads 2/2004.

Third The petitioner believes that § 32 of the Pension Insurance
respectively. setting the retirement age differently depending on
number of children being raised for women only, is in conflict with the constitutional order
, specifically with Art. 1, Art. 3. 1 and Art. 30 paragraph. 1 of the Charter
fundamental rights and freedoms (the "Charter").

Fourth Responds to the arguments of the plaintiff, appellant broke into the matter
proceedings and referred to the Constitutional Court for the annulment of the provisions
. He took the view that § 32 of the Pension
insurance, which is applied in the matter is inconsistent with the constitutional order of the Czech Republic
if it provides only for women
pensionable age depending on the number of children raised. He concluded that the contested provision
is so imperative that it does not allow discrimination against men separately
educating children overcome even constitutional interpretation.
The petitioner pointed to the Constitutional Court dated 21. 1. 2003 sp.
Brand. Pl. US 15/02 (Collection of Decisions of the Constitutional Court (hereinafter
"Collection"), volume 29, judgment no. 11, published as no. 40/2003 Coll
.), And its supporting reasons concerning equal rights.
The petitioner pointed out that the retirement age in Czech law traditionally for women and men
defined differently in women is further differentiated by the number of raised
children. According to the petitioner can not be seen as reasonable grounds for justifying
differences in conditions and a reasonable amount of security in old age, where
is only a certain group of people favored by
fulfillment of specific conditions, and the other group fulfilling the same conditions is an advantage denied.
Act and, without being there are no substantive reasons related to sex
different, depending on the sex of the person caring for a child,
establishes a different way right for that person's pension and insurance
sets for men and women unequal conditions when determining
retirement age in relation to care for children. Finally, the petitioner
pointed to the privileged position of women within the meaning of Art. 29 of the Charter and the provisions of Article
. 32 par. 4 in relation to childcare as part
rights of both parents.

Fifth On 18. 1. 2005 the Constitutional Court issued a resolution under file. Nos. Pl. US 67/04
(unpublished), which rejected the petition of the Regional Court in Hradec Kralove,
represented by JUDr. Marcela Sedmíková, delivered to the Constitutional Court on 1
12th 2004 seeking the annulment of § 32 of the Pension Insurance
because this proposal prevents lis pendens. Given that
petition was filed by an authorized petitioner under § 64 paragraph
. 3 of the Constitutional Court, the petitioner has a legitimate right under

§ 35 para. 2 of the Law on the Constitutional Court
participate in the negotiations on the previously filed petition as an intervener in the case
Pl. US 53/04.

6th On 27. 1. 2005 the Constitutional Court resolution file no. Nos. Pl. US 72/04
(unpublished), which rejected the proposal of the Supreme Administrative Court, represented by JUDr
. Jaroslav Vlašín, delivered to the Constitutional Court on 13. 12.
2004 to annul § 32 of the Pension Insurance Act, as
this proposal prevents lis pendens. Given that the proposal
was submitted by an authorized petitioner under § 64 par. 3
Law on the Constitutional Court, the petitioner has a legitimate right
according to § 35 para. 2 of the Law on the Constitutional Court to attend
negotiations on the previously filed petition as an intervener in the case
Pl. US 53/04.

II.

Recap substantial parts of the parties' observations

7th The Constitutional Court, under § 42 para. 4 and § 69 of the Law on the Constitutional Court
sent the petition to annul § 32 of the Pension Insurance
Chamber of Deputies and the Senate of the Parliament of the Czech Republic
.

8th Chamber of Deputies in its statement dated 25. 4. 2006
pointed typology retirement ages in the Law on Pension Insurance
and the fact that the general retirement age for women in addition
vary according to the number of children raised . It noted that the possibility of providing
benefits in pension insurance to persons who have brought up children,
example. lowering the retirement age, it is part of the international standards, such
. Council Directive no. 79/7 / EEC of 19. 12. 1978 on the gradual introduction
principles of equal treatment for men and women in matters of social security
. Deputies also pointed to the provisions of Article. 18 of the Convention on the Rights of the Child and
Art. 5 of the Convention on the Elimination of All Forms of Discrimination against Women
. In the preparation of the pension reform will, in the opinion of the House
probably should stop raising a child conceived as a matter
dedicated exclusively to women, but extend it to the man. Status and roles of men and women in society
evolve and this fact is undoubtedly necessary
respond. § 32 of the Pension Insurance Act
it should not be changed immediately, but at least up to r. 2012, when it should be terminated
gradual extension of the retirement age.
Conclusion of his statement Deputies stated that the legislature acted in
belief that the law is in conformity with the Constitution, constitutional order and
Czech law. It is up to the Constitutional Court to evaluate
"the constitutionality of this law and issue an appropriate decision."

9th Czech Senate in a statement dated 28. 4. 2006
stated that Act no. 155/1995 Coll., On Social Security, was adopted
Deputies 30. 6. 1995, with effect from 1 1 . 1996, or in
time before the establishment of the Senate. The contested § 32 was introduced, the current
wording of the amendment, introduced by Act no. 425/2003 Coll., Which
amending Act no. 155/1995 Coll., On pension insurance, as amended
regulations Act no. 589/1992 Coll., on social security and
contribution to the state employment policy, as amended
regulations, the Act no. 582/1991 Coll., on organization and implementation of social
security, as amended, and Act no. 48/1997 Coll., on
public health insurance and amending and supplementing certain
related laws, as amended. The essence of the changes were
austerity measures, one of the changes was to increase the age limit for the creation
retirement pension from 62 to 63 years, while maintaining
lower retirement age for women according to the number of children. The extensive debate
were also mentioned amendments adopted by the government bill in the Chamber of Deputies
. One of them was an amendment concerning
maintaining the reduced retirement age for women
according to the number of their children, while in the government bill was contained provisions intended
gradually (by 2005) to introduce a uniform retirement age for men and women with
fact that women are no longer reflect the number of children raised.
In the explanatory memorandum to the draft stated that the same retirement age for men and women
corresponds to the fundamental principle of EU law on gender equality, the

Existing different retirement ages for men and women in some countries is
historical reasons tolerated as an exception. Appeal pointed out that
adjustment graduation retirement age for women according to the number of children
was introduced by Act no. 101/1964 Coll., On Social Security, with effect from 1
1st, 1965, with that this arrangement was essentially
justified by the fact that it "expresses a different life situation of mothers
which besides fulfilling their work obligations fulfilled such obligations when
childcare". Governmental proposal from r. 2003, pointing to a gradual introduction
uniform retirement age for men and women, while
solution would lie in the fact that the number of children raised at men or women does not take into account
, which take place gradually to r. 2025
time corresponds to the solution given Slovak Act no. 461/2003 Coll,
leading to the unification of the retirement age for men and women by 2015.
government in 1998 adopted Resolution no. 236 document Priorities and procedures
Government in promoting equality of men and women on the basis of the annual
discusses the Summary report on the Implementation of Priorities and procedures for the
promoting equality between men and women. In the report for 2003 it was as
problem related to care for children in basic pension insurance
, highlighted among others. On different age limit for entitlement to old-age pension
men and women in the basic system. This inequality
would not, however, solve the giving preferential rights to men, but more women
collecting claims. The report for 2004 stated that, from the perspective of EU norms
appears that the regulations on pension insurance (in particular
Act no. 155/1995 Coll., As amended) do not contain
provisions of which would be deduced unequal position of men and women.
Article 7 of Council Directive 79/7 / EEC excludes from its scope the determination
retirement age for old-age provision and pensions and on service
its possible consequences for the benefits and advantages of the old-age pension
provided for persons who raised children. It means that different
retirement age for men and women and its potential consequences are in the pension system
continue to be admissible. In the 2005 report it was finally stated that
at the government level is the current arrangement of different retirement ages for men and women
in connection with child care is perceived as an unequal position
or as discriminatory treatment in relation to men . Yet
began to emerge comments, pointing to the unequal position of men and women in terms
different retirement ages, eg. In the Report on Human Rights
2004 Czech Helsinki Committee stated that "considerable inequality || | higher age limit for the retirement of men who
care for a child than women who cared for the child. " In February 2006, the Council
Czech Government Human Rights at the initiative of the Government Council for Human Rights
discrimination against women caring for children, among others. Stated that
"current legislation the statutory retirement age discriminates || | man that is different for men and women and that sets the amount
retirement age, depending on the number of children.
While simultaneously discriminates against women in the labor market due to the fact that
statutory retirement age in the practice of artificially shortens the path of professional
women - mothers, which supports persistent stereotype that the child has to nurture
woman. Motherhood should not automatically be cause for some
"benefits" even mean disadvantage in the labor market because
belonging to the female sex does not automatically mean parental
qualifications and the male sex does not mean similar
disqualification " . According to the cited document solutions
sex discrimination "fairly radical intervention in the existing regulation,"
due to the inevitability of reform of the pension system would solve this problem
should be part of the upcoming reform of the pension insurance ".
Report in the Ombudsman's activities for the first quarter of 2006
was stated that the longstanding statutory regulation based on the traditional concept of family
basically is discriminatory, "even though the draft Anti-Discrimination Act
different age retirement for
not considered discrimination. Senate concludes that "
opinions on the constitutionality or unconstitutionality of the legislation, different age limits for

The retirement of men and women are quite different. " It concludes that
"certainly not a manifestation of arbitrariness of the legislature, but rather the fact that
retains the earlier legislation adopted in a certain historical period since its
change, with regard to conditions existing at present is
socially and politically quite complex. If, therefore, pronounced
opinion on the unconstitutionality of the legislation of different retirement ages for men and women as
discriminatory treatment in relation to men, with the solution to this problem
should be part of the upcoming reform of the pension insurance
, the question is, how many years would be to change the current arrangements
could or should occur. It is up to the Constitutional Court to the constitutionality of the contested
§ 32 of Act no. 155/1995 Coll., On Pension Insurance, as amended
, examined and ruled on the case, and in the case that
podávanému draft He decided the dates for the provision of the Act
deleted. In this context, however, be noted that it is difficult to assume that
could be (socially acceptable and economically or politically acceptable)
addressing this issue in the sense that the alleged discrimination
men removed "once "at a certain date.

III.

Recap essential parts of the Constitutional Court requested opinions.

10th The Constitutional Court also pursuant to § 48 par. 2 of the
Constitutional Court requested the opinion of the Ministry of Labour and Social Affairs
and the Czech Social Security Administration.

11th The Ministry of Labour and Social Affairs (the "Ministry") is
in its opinion of 26. 4. 2006 addressed the issue of the importance
retirement age in pension insurance, described the brief development
previous legislation, expressed the to respect the valid legislation to EU standards
/ EC, in the context of comparative opened up
relevant information concerning foreign legislation and opened up the possibility of analyzing
unification of different retirement age in the Czech Republic.
Ministry firstly pointed to the fact that the retirement age in the Czech Republic
differentiated not only by gender. Commented that
retirement age represents the Law on Pension Insurance Institute
key, without which this law is basically inapplicable. Within
historical excursus ministry pointed out that for the first time on the territory of the Czech Republic
boundaries were different for men and women put up
Act no. 55/1956 Coll., On social security, and with effect 1
first 1957. The preamble to the Act accented "peculiarities
social status and physique of women." V r. 1956
only about half of the world's then existing pension system
admitting women to lower the age limit for the retirement
than men, regardless of the number of children raised. To Act no. 101/1964 Coll
., On Social Security, which took in most
provisions effective on 1 7th, 1964, the age limit for women
entitled to a retirement pension further differentiated, and it
according to the number of their children. According to the explanatory memorandum to the Act, among others. "
This different age limit for the right to retire is expressed in different life situations
mothers, who in addition to performing job duties also perform
responsibilities in the family taking care of children" . The Ministry stressed that
differentiated age limit for entitlement to old-age pension for men and women
meant a change that arose historically in a certain social environment
since then the view was that the simultaneous employment and
childcare places greater demands on a woman than a man, and the company reached a consensus
compensate for this position, respectively. the role of women
her earlier retirement. On statistical data linked to r.
2004 documents the ministry, the fact that the Czech Republic still
remain significant differences in the economic and social status of men and women
. The Pension Insurance Act, which came into effect on 1
1, 1996, has introduced a gradual increase in existing
ages for the retirement, and more markedly in the case of women. The reason for this increase was
differentiated implementation of the plan progressively closer
retirement ages for men and women. The process of convergence ages for men and women
is a long similarly introduced their

Differentiation, which is also the result of historical development.
Government draft amendment to the law on pension insurance from r. 2003 legislation contained
consists of further gradual increases differentiated
ages for the retirement in order to unify them
to 63 years, regardless of the number of children raised, which should be achieved in
r. 2025. by adopting the amendment the parliamentary draft age limit is increased
remain differentiated, yet with the target
different for men and childless women and one for women raised children, on the other hand
. The discussion also leads not about whether age limits
men and women gradually converge to their union, but the pace of convergence
. Conclusion gradually unify the retirement age is also
accordance with international trends in countries with a similar situation as in
Czech Republic, the Slovak Republic only temporarily
is yet another criterion for setting lower retirement ages for women and the number of
children raised as in the Czech Republic, which is also due
historical development since the establishment of a common state until the partition of Czechoslovakia. In
certain extent they also reflect the children brought up in Slovenia.
The Ministry pointed out that the Ombudsman, as is clear from
summary report on activities for the year. 2005 is no incentive on the issue
not received and dealt with this issue, as well as || | circumstance that the proceedings concerning the Council Directive of 19. 12. 1978
(7917 / EEC) has been stopped, which means that, with regard to this Directive
not need to implement special transposition process and the Czech legal
not finish with this Directive cited in conflict. Council Directive of
20th 12th, 1996 (96/97 / EC) amending Directive 86/378 / EEC on the introduction
principle of equal treatment for men and women in occupational social security schemes
, although different age limit for men and women
in these systems does not allow, in relation to the Act on pension
insurance, which regulates the state basic pension insurance, however
not relevant and therefore also the European Commission to the Czech Republic
unification of the retirement age for men and women the retirement of
basic pension insurance required. The Ministry within
komparatistického survey highlights the trend, "consisting in increasing
lower retirement ages for women entitled to a pension."
The retirement age is the same age as defined by eg. In Denmark
Netherlands, Germany, Portugal, Spain, Ireland, Canada, Finland,
Norway, Iceland, France and the USA, a gradual process of unification
differentiated retirement ages takes place eg. in Belgium, Estonia,
Latvia, Hungary, Austria, Great Britain or Australia, in some countries
differentiation is preserved even while gradually raising the retirement age
eg. in Lithuania , Switzerland, Bulgaria and Romania. Designed
retirement age existed in the late nineties of the 20th century
further in Poland, Malta, Russia and Ukraine.
Age differentiated depending on the number of children, mostly but not only for mothers, to some extent preserved
eg. In Slovenia, Latvia, Estonia and Austria.
Ministry also opened up various options unification of different
retirement age, and a gradual unification of different ages
limits for the retirement of men and women regardless of the number of children raised
, taking into account the child's upbringing in
set the age limit for entitlement to retirement pension even if men and single
unification of different age limits for the retirement
for men and women regardless of the number of children raised. The latter
variant, ie. To eliminate the unequal position of men and women suddenly
(ie. Jumping), ie. A certain date to abolish discrimination of women by
number of children raised, the Ministry stated that "this
variation ( "shock") would be so socially insensitive and inconsistent with the principle
predictability of the law that would be socially and politically unacceptable
and impassable, and thus is not described in detail. " Solutions
reducing the age limit for the retirement
men due to the upbringing of children, would represent a completely opposite trend in comparison with the solution
accepted all known foreign
pension systems and would lead to significant increase in pension expenditure.

The Ministry also pointed to possible practical problems, eg. The fact that
age limit would have to be evaluated simultaneously with two (or even more
) policyholders, "because there is no way credibly determine that
the parents (in the case of child care in the same household)
ensure personal care of the child to a greater extent, and who should therefore be recognized
custody of the child to determine the age group ". If
finally been recognized child care for a lower age limit for men
entitled to a pension only when it can not be assessed any
woman, this would not eliminate unequal treatment because the woman could || | evaluated the education of the child is always regardless of whether along with her
raising a child and a man, but men only if it proves that the child
educate himself. The Ministry concludes that the principle of equal treatment for men and women
be implemented in basic pension insurance
gradually taking into account all contexts, including economic impacts
; Questions retirement age can not be addressed in isolation. Current legal
adjustment of the basic pension insurance, involving the gradual elimination
differences between men and women is appropriate.
Sudden and abrupt change in legislation would be for women was contrary
rightly perceived negatively, as an element of arbitrariness and violation of legal certainty and predictability
rights. Due to that
Ministry of Labour and Social Affairs of the opinion that it is necessary for the annulment of § 32
Pension Insurance Act to refuse.

12th Czech Social Security Administration (hereinafter the "CSSA")
in its statement dated 17. 4. 2006, stated that the age of retirement
income, which is defined differently in men and women is undeniably
due to historical and sociological background of the legislation
social security. The retirement age of women according to § 32 of the Pension Insurance
derived from the number of children reflects
historical need and indisputable and irreplaceable in their own way
role of women in the household (family) in terms of continental (and
specific Central). According to the CSSA, although the end of the 20th century
leads to revolutionary social change and gender equality in all areas
became one of the fundamental principles of social and
social and legal reality, and so striking differences between the position
men - fathers and women - mothers there is controversial provisions remain
be defended. Empirical and statistical evidence is possible to prove that
woman with children has reduced the possibility of career advancement and professional growth
compared to a man who is a father, the wife and children are not disadvantaged
because she is a woman, but because she has children. Professional development
career women is significantly slower than in men, which ultimately result
crucial influence on the amount of pension benefits. Purpose questionable standards then
it involves the removal of unjustified discrimination. The question arises whether
in raising children, within the meaning of the statutory provision emphasizes
motherhood or parenting. Physiological aspect of motherhood is to woman
negligible negative impact, not only in its
restrictions on the labor market, but also within the already agreed employment.
Pregnancy, childbirth and breast-feeding are situations which are irreplaceable
women in them can not be replaced by a man. Men - fathers
in such positions are not, even if it took on himself
family and parental responsibilities associated with raising a child.
In the current social context other parental duties
do not have the same impact on their career prospects as in the case of women - mothers.
Prioritizing motherhood can thus be considered fair and
correct, that do not constitute discriminatory treatment with regard to various
sex. Age retirement age gradually approaching so
to both men and women who have children after 31. 12. 2012 was 63
years. Determination of different retirement ages for men and women is not only the domain
Czech Republic. CSSA notes that any consideration of
setting lower retirement age for men in connection with raising children
should be based not only serious study on the economic impact of such
počinu, but also other sociological surveys
nature of the status of women - mothers in the labor market at home

Etc., which should show exactly the same (or only minimally different
) and "fungible" role of men and women in all spheres of social life
. Should a cancellation of the entire § 32 of the
pension insurance, which would be given for the formulation of necessary
occurred in relation with the sudden absence of a provision on "retirement age
" interference in other institutions on retirement age related, which
would seem very difficult. CSSA is of the opinion that the current situation is not
with EC law in the conflict. Refers to Article. 7 of Council Directive EEC 79/7 and also
Article. 6 Sec. 3 of the Agreement on Social Policy, which is connected to
Protocol no. 14 of the Treaty on European Union. This article is also fully
applicable in the context of Title no. XI., On social policy,
Treaty establishing the European Community, the consolidated version
Nice Treaty which enshrined the ban on discrimination and equality of treatment | || in "pay" for women and men for the same work.
Member State, this provision shall not prevent, in order to maintain or take action that
provide special advantages to facilitate the exercise of professional activity for women
or prevent or compensate for disadvantages in their careers.
CSSA conclusion comes to the conclusion that the conceptual solution, consisting of
gradually approaching retirement age for men and women with the aim of achieving
same age (from this position, view e ratione legis, and additionally with regard
a generally respected the constitutional principle that consists in
special protection for women and mothers), it is in line with the principle of equal treatment
. Access to women - mothers is based on objective and reasonable grounds
unjustified (discriminatory) differences between the sexes does not
.

IV.

Wording of the contested provisions of the Act and its legislative history

13th The Constitutional Court finds that the contested provision § 32 Act
on pension insurance at the time of submission of the proposal sounded and now reads:

"§ 32

(1) The retirement age is

A) in men 60 years

B) for women

First 53 years old, if they raised at least five children,

Second 54 years old, if they raised three or four children

Third 55 years old, if they raised two children,

Fourth 56 years old, if they raised one child, or

Fifth 57 years

If the policyholder reached this age by 31 December 1995.

(2) For insured persons who reach age limits specified in paragraph 1
in the period until 31 December 2012, the retirement age is determined by the
calendar month in which the insured has reached the border,
arrive men two calendar months for women
four calendar months for every year of the period after 31 December 1995 to achieve
age limits specified in paragraph 1, and the retirement age is considered
age reached the specified calendar month following the day on which the
same number as the day of birth of the insured person; Unless specified
month following such date shall be considered retirement age is the age that is
achieved in the last day of the calendar month specified as follows.

(3) After 31 December 2012, the retirement age if the insured
reached retirement age under paragraph 1 or 2

A) in men 63 years

B) for women

L. 59 years old, if they raised at least five children,

Second 60 years old, if they raised three or four children

Third 61 years old, if they raised two children,

Fourth 62 years old, if they raised one child, or

Fifth 63 years.

(3) The condition of the child's upbringing for women entitled to a pension is
met if a woman personally cares for or cared for a child aged
reaching the legal age for at least ten years. However, if a woman
the upbringing of the child after the eighth year of his age, the condition
education is met if a woman personally cares for or cared for a child aged
to achieve a majority at least five years; However, this does not apply if a woman
before reaching the age of majority the child ceased to care for the child. "

14th The Constitutional Court states that § 32 of Act no. 155/1995 Coll.
On pension security was:

"§32

1) The retirement age is

A) in men 60 years

B) for women

First 53 years old, if they raised at least five children,

Second 54 years old, if they raised three or four children

Third 55 years old, if they raised two children,

Fourth 56 years old, if they raised one child, or

Fifth 57 years


If the policyholder reached this age by 31 December 1995.

(2) For insured persons who reach age limits specified in paragraph 1
in the period from 1 January 1996 to 31 December 2006, the retirement age
determined by the calendar month in which the insured
reached this limit shall be attributed to men two calendar months for women
four calendar months per each calendar year from the time
after 31 December 1995 to the date of attainment of age limits specified in paragraph 1, and | || beyond retirement age is considered the age reached in the following designated
calendar month on the day which is the same number as the day of birth of the insured person;
Does not contain the specified month following such date shall be considered retirement age
that age, which is reached on the last day so designated
calendar month.

(3) After 31 December 2006, the retirement age if the insured
reached retirement age under paragraph 1 or 2

A) in men 62 years

B) for women

First 57 years old, if they raised at least five children,

Second 58 years old, if they raised three or four children

Third 59 years old, if they raised two children,

Fourth 60 years old, if they raised one child, or

Fifth 61 years.

(4) The condition of the child's upbringing for women entitled to a pension is
met if a woman personally cares for or cared for a child under the age
reaching maturity at least ten years. However, if a woman
the upbringing of the child after the eighth year of his age, the condition
child education is met if a woman personally cares for or cared about
child under the age of reaching adulthood for at least five years; But it
apply if the woman before reaching the age of majority the child stopped
child care. "

15th The Constitutional Court also notes that the contested § 32
did not affect the amendment to Act no. 155/1995 Coll., The implementation of Act No.
. 134/1997 Coll., No. 289/1997 Coll., No. 224/1999 Coll., No. 18/2000 Coll., No.
118/2000 Coll., No. 132/2000 Coll., No. . 220/2000 Coll., No. 116/2001 Coll., No.
188/2001 Coll., No. 353/2001 Coll., No. 198/2002 Coll., No. 263/2002 Coll., And no.
264/2002 Coll., and that at the time of submission of the proposal and the version applicable
contested provision was amended only by Act no. 425/2003 Coll.

16th From the electronic library of the Parliament of the Czech Republic's Constitutional Court
found that the draft law no. 155/1995 Coll., On pension insurance
submitted to Parliament by the government on 2. 3. 1995 Members
proposal was circulated as printing č.1574. The bill was adopted at the 32nd session of the Parliament on 30
6, 1995 Resolution no. 727, when the deputies present
them voted for the Bill 100, 76 were against and one abstained.

17th The president signed the law.

18th The Constitutional Court therefore held that the Act no. 155/1995 Coll.
was adopted by the Parliament of the Czech Republic in a constitutional legislative procedure
was signed by the appropriate constitutional authorities and was duly promulgated in the Collection of Laws
while first came into force on 1st 1996.

19th From the electronic library of the Chamber of Deputies of the Parliament of the Czech Republic
Constitutional Court found that the draft law no. 425/2003 Coll., Which
amends Act no. 155/1995 Coll., On Pension Insurance, as amended
amended, Act no. 589/1992 Coll., on social
security contributions and the state employment policy, as
amended, Act no. 582/1991 Coll., on organization and implementation || | social security, as amended, and Act no. 48/1997
Coll., on public health insurance and amending and supplementing some
related laws, as amended (hereinafter "law no.
425/2003 Coll. "), which was amended text of the contested provision, § 32
pension insurance Act the wording in force at the time of the application and
now, the Government submitted to the Chamber of Deputies on 8th 7th 2003. Members || | proposal was circulated as print no. 396/0. The bill was adopted at the 20th meeting
Chamber of Deputies on 26. 9. 2003 Resolution no. 664, when the
present, 196 deputies voted for the Bill 100.

20th From the electronic library of the Czech Senate
Constitutional Court found that the Senate bill was submitted to the Chamber of Deputies
15. 10. 2003. The Senate debated the bill in Parliament according to the sixth
11th 2003 at its 11th meeting (fourth term) and adopted Resolution No.
. 235, which approved the bill in the version passed Chamber

Commons. Of the 70 senators present voted in favor of them for 41

21st President, this proposal was signed on 26. 11. 2003.

22nd The Constitutional Court therefore held that the Act no. 425/2003 Coll.
Amending law on pension insurance, among others. In the contested provisions of §
32 of the Pension Insurance Act, was passed by the Parliament
Czech Republic in a constitutional legislative procedure
was signed by the appropriate constitutional authorities and was duly promulgated in the Official Gazette, while
came into force on 1 1st 2004

V.

Waiving hearing

23rd Hearing was in compliance with § 44 par. 2 of the Law on the Constitutional Court
abandoned because of him could not be expected
further clarification of the matter, and all participants and interveners with this procedure
expressly or impliedly They agreed.

VI.

Consistency of the contested statutory provision with the constitutional order

24th The Constitutional Court firstly examined whether the contested provisions of §
32 of the Pension Insurance Act, as amended, is not inconsistent with the provisions
Art. 52 of the Constitution. Based on the consideration that the Official Gazette is
literature accorded informative function, consisting in the fact that
Gazette serves as the official source of knowledge of legislation
(cf. K.Klíma et al., Comments Constitution and the Charter, Plzeň,
Publishing Ales Cenek, Ltd., 2005, p. 281).
Although the Act no. 155/1995 Coll., On pension insurance - as has been said above
- During its fifteen effectiveness and amended since.
1995 was promulgated in the Official Gazette after any amendment in unabridged
Constitutional court found that § 32 of the pension insurance Act
amended only by the law no. 425/2003 Coll. for far too easily approachable
seen for a general awareness of the law, as a rule,
which directs the behavior of those to whom it is addressed.

25th The petitioner seeks annulment of the contested provisions conflict with Art.
1, Art. 3. 1 and Art. 30 paragraph. 1 of the Charter, also points to a
provisions of Art. 29 and Art. 32 para. 4 of the Charter in relation to care for children as part
rights of both parents.

Art. 1 of the Charter reads:

People are free and equal in dignity and rights. Fundamental rights and freedoms
are inherent, inalienable, imprescriptible and irrevocable.

Art. 3. 1 of the Charter reads:

(1) Fundamental rights and freedoms are guaranteed to everybody irrespective of sex,
race, color, language, faith and religion, political or other
opinion, national or social origin, association with a national
or ethnic minority, property, birth or other status.

Art. 30 paragraph. 1 of the Charter reads:

(1) Citizens have the right to adequate material security in old age and during
incapacity for work and loss of breadwinner.

26th Similarly, as in all democratic constitutional courts
Constitutional Court of the Czech Republic in the norm control proceedings and in proceedings on constitutional complaints
applies the principle of proportionality.

27th In its judgment of 20. 6. 2006 sp. Nos. Pl. US 38/04 (publ.
In the Collection of Laws under no. 409/2006 Coll.), As in the judgment of 13. 8. 2002
sp. Nos. Pl. US 3/02 (publ. In the Collection of Laws under no. 405/2002 Coll.)
Constitutional Court stated and such. The judgment of 27. 9. 2006, sp. Ref.
Pl. US 51/06 (publ. In the Collection of Laws under no. 483/2006 Coll.) Reminded
that "in cases of conflict between fundamental rights and freedoms with the public interest
respectively. other fundamental rights and freedoms, it is necessary to evaluate the purpose
(aim) of such interference in relation to the means used, while for
this evaluation is the principle of proportionality (in the wider sense
), which can also be called a ban excessive interference with rights and freedoms
. ".

28th In its judgment of 21 sp 1, 2003. Nos. Pl. US 15/02 (publ.
In the Collection of Laws under no. 40/2003 Coll.), The Constitutional Court stated that "
equality is a relative category, which requires the elimination of unjustified differences.
Principle of equal rights according to Art. 1 of the Charter of Fundamental Rights and Freedoms
must be understood such that legal differentiation in the approach to certain rights may not be
manifestation of arbitrariness, but it does not follow from the conclusion that | || everyone must be granted every right.

29th International human rights instruments and many decisions
international supervisory bodies based on the fact that not every unequal

Deal with different subjects can be classified as a violation of the principle of equality
, thus as illegal discrimination against one group of subjects
compared to others. So that the violation occurred, it must be met
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.

30th Said excursion led the Constitutional Court to conclude that
certain legal framework that favors one group or category of persons over others can not be
itself to violate the principle of equality.
Legislature has a certain discretion to decide whether such preferential treatment
grounds. It must see to it that the preferential approach is based on
objective and reasonable grounds (a legitimate legislative aim) and that
between that aim and the means to achieve it (legal advantages)
there is a proportional relationship.

31st 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
often end up being obligated to active intervention designed to remove blatant
aspects of inequality between different groups difficult socially, culturally, professionally
or other levels, logically
legislature has much greater discretion to exercise their concept of the permissible limits of de facto inequality
inside her. Therefore, it chooses preferential treatment
more often. "

32nd Another of the principles applied in the event of a conflict between fundamental rights
or the public good, as principles, unlike the case of conflict
norms of sub-constitutional law, the Constitutional Court guided by the optimization, ie
. postulate of minimizing the restrictions on fundamental rights and freedoms, if necessary.
Public good. Its content is the maxim that, if it is concluded
merits priority to one of two conflicting fundamental rights
respectively. public goods is a necessary condition for the final decision
also use all possibilities to minimize interference in one of them
. The optimization can be normatively derived from Art. 4
paragraph. 4 Charter, under which the fundamental rights and freedoms must be preserved
when applying provisions on limits of fundamental rights and freedoms, thus
analogy also in the case of restrictions due to their mutual collision
(cf. Constitutional Court of 28. 1. 2004, Ref. Nos. Pl. US 41/02,
(Collection of decisions, volume 32, judgment no. 10, published as no. 98/2004 Coll
.), or the judgment of 27. 9. 2006, Ref. Nos. Pl. US 51/06 (promulgated under
no. 483/2006 Coll.).

33rd Constitutional court does not share the view that the contested provision is
contrary to Art. 1 and Art. 3. 1 of the Charter in relation to the petitioner that provided by Article.
30 paragraph. 1 of the Charter and the abolition of § 32 of the pension insurance Act would
was raised gender equality in relation to the right to adequate
material security in old age. If there would repeal
contested provision, it would have taken some advantage to women - mothers without
in the framework of equality 'became men - fathers same advantages
which are women - mothers. the Constitutional court is the only negative legislature and its
action against the contested provision would only violated the principle of protection
citizens' trust in the law, eventually. interference with the legal certainty, respectively.
legitimate expectations. In this context, the Constitutional Court finds that in this case
no conflict between positive law and justice.

34th The Constitutional Court examined further preferential approach, which was founded
on objective and reasonable grounds. Into account the reasons historical and sociological
and the komparatistice. It refers to the rich
arguments arising from the statements of the parties and requested opinions and
found that the contested provision is based on the existence of a legitimate objective.

35th The Constitutional Court took into account the fact that § 32 of the Pension Insurance
not, as stated above, in terms
komparatistického in European Union countries, except even the general trend
aims to eliminate the perspective of different retirement ages
men and women being discussed in the Czech Republic.


36th The Constitutional Court did not find expression in the adoption of legislative arbitrariness
current wording of § 32 of the Pension Insurance Act.
Came to the conclusion that a repeal of the contested provision
deviate from the principle of minimizing interference, because the solution of inequalities between men and women in
pension insurance scheme can not be found without a comprehensive and wisely timed adjustment
wide system of pension insurance at finding
socio - economically viable and acceptable aspects that need to be
lay rather in the context of the overall reform of the pension system. As an obiter dictum
it is to be noted that the eventual elimination of inequalities between men and women in
pension insurance should fully reflect developments
social relations in society.

37th The Constitutional Court finally observes in relation to the category of gender, the
"in the social process fulfills the function of these values ​​rather
ideal type categories, expressing ultimate aims, which can not
completely overlap with social reality and can achieve
just an approximate way. " (Cf. Judgment dated 7. 6. 1995, Ref. Nos. Pl. ÚS 4/95, Collection
decision, Volume 3, judgment no. 29, promulgated as no. 168/1995 Coll.).

38th Given the fact that the Constitutional Court agreed with the arguments
testifying to the conclusion that there were objective and reasonable grounds for
the different approach, therefore came to the conclusion that § 32
Pension Insurance Act does not conflict with Art. 1, Art. 3. 1 and Article
. 30 paragraph. 1 of the Charter of Fundamental Rights and Freedoms, which is why a proposal to repeal
rejected (§ 70 para. 2 of Act no. 182/1993 Coll.).

Chairman of the Constitutional Court:

JUDr. Own hand

Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, attracted to the plenary decision of Judge
Vlasta Formánková and Elisabeth Wagner.