Found No 14 / 2022 Sb.
The Constitutional Court found of 7 December 2021 sp. zn.
Valid
14
FIND
The Constitutional Court
On behalf of the Republic
On 7 December 2021, the Constitutional Court decided, under sp. zn. (Transitional provisions) in section 1 of the words "and at the same time did not, by that date, receive the total amount of the parental contribution to this child or children in accordance with Act No. 117 / 1995 Coll., as effective before the date of entry into force of this Act 'and in paragraph 2, with the participation of the Chamber of Deputies of the Parliament of the Czech Republic as parties to the proceedings and the Government of the Czech Republic as an intervener,
as follows:
Motion denied.
Reasons
The substance of the proposal to abolish part of the law
1. A group of 53 Senators of the Senate of the Parliament of the Czech Republic (hereinafter referred to as "a group of Senators" or "the draftsman") proposed to the Constitutional Court to abolish part of Act No. 117 / 1995 Coll., on State Social Support, as amended, (hereinafter referred to as "Act No. 363 / 2019 Coll.," or "Amendment") in the words of point 1, together with the total amount of parental contribution to that child or children, as amended, in accordance with Act No. 117 / 1995 Coll., as effective before the date of entry into force of this Act, as well as well as point 2 of that provision. The contested version of the Act is therefore part of the transitional provisions of the amendment to Act No. 117 / 1995 Coll., on State Social Support, as amended, (hereinafter referred to as "the Act on State Social Support"), published under No. 363 / 2019 Coll., the core of which is the increase of the total amount of parental contribution from CZK 220 000 to CZK 300 000 in § 30 (1) of the quoted Act.
2. The appellant considers the proposed transitional provisions of the amendment to be unfair as they deny certain parents the right to part of the parental contribution only because they have not in the past chosen a slower drawing of the contribution. They could not have been aware of the new negative consequences of the faster use of the parental contribution in this choice, so the contested part of the transitional provisions lacked a rational justification. There was a conflict with the principles of predictability, the protection of trust in the law and legitimate expectations, equality, the prohibition of arbitrage, and at the same time there was an unacceptable interference in the right of parents who care for children to help the state.
3. A breach of the principles of predictability, the protection of trust in law and legitimate expectations is more specifically seen by the appellant in the nature of the contested provisions, which became property sanctions - by denying the increase in the contribution - for the behaviour that took place before the adoption of the transitional provisions. These provisions are retrospective and could not be foreseen by parents. Moreover, prior to the enactment of the contested provisions, the Minister for Labour and Social Affairs on social networks has publicly promised that the increase in the parental contribution will also apply to parents who have already benefited from the parental contribution and whose child or children have not yet reached the age of four. If the previous overdraft of the parental contribution, as a decisive criterion, were to be seen in time, these parents could spread the remaining amount into lower monthly amounts. The appellant pointed out that the previous amendment to the Act on State Social Support, which increased the parental contribution to multiple parents, did so also against those parents who had already completed the total amount of the parental contribution (Article II (4) of Act No. 200 / 2017 Coll., amending Act No. 117 / 1995 Coll., on State Social Support, as amended, and other related laws). The unpredictability of the legislation is also seen by the appellant in the fact that, until now, it has been faster to draw on the parental contribution, linked to the earlier return of parents to work, by the behaviour of socially desirable; The state of parents has motivated the flexible adjustment of the drawing contribution to the early return to work.
4. Another objection from the appellant is a violation of the principle of equality. Parental allowance is designed flexibly and allows for options for reconciling childcare and working life. The transitional provisions created by the inequality between two groups of persons in a comparable position, with a full and not yet exhausted contribution to the child's four years of age, would be acceptable only if the conditions of the legitimate objective were met. However, the contested provisions lack reasonable justification. Neither the explanatory memorandum to the law nor the Final report from the impact assessment of regulation (RIA report) are expressed for the purpose of this discriminatory measure. The parental contribution shall not replace income from work; it is a benefit independent of its previous level, and the law allows the parent to be employed when receiving it, provided that the child is taken care of in one of those ways. Instead of evaluating parents for childcare, there was a sense of social injustice among parents. The legislator did not deal with an alternative to another legislative solution, such as the possibility of increasing the total amount of the contribution to all parents of children under four years of age or increasing this amount (and thus the monthly payments) only to parents of children born after the entry into force of the law.
5. According to a group of Senators, the contested provisions infringe the right of the child-care parents to assist the State, guaranteed by Article 32 (5) of the Charter of Fundamental Rights and Freedoms ("the Charter '). The irrationality of the regulation and its extreme inequality are highlighted, as the amount of the denied parental contribution in the amount of CZK 80 000 represents more than a quarter of its new total amount.
6. The appellant asked the Constitutional Court for a preliminary hearing of the case and also for a statement of obiter dicti, in which the Constitutional Court would, beyond that, 'on the constitutionality of the current concept of entitlement to the choice of the rate of drawing the parental contribution'.
Observations of participants
7. The Constitutional Court called pursuant to Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, hereinafter referred to as "the Law on the Constitutional Court '. The Chamber of Deputies, the Senate and the Government to comment on the proposal. The Ombudsman informed the Constitutional Court that she did not exercise her right to intervene.
Observations of the Chamber of Deputies
8. The Chamber of Deputies stated that it was submitted to it by draft law No 363 / 2019 Coll. on 23 May 2019 and was sent to Members on the same day as the House press No 490 / 0. The contested transitional provisions of the Act, which was subsequently published on 31 December 2019 in the amount of No. 152 / 2019 Coll., are identical to the original government proposal. The first reading of the draft law took place on 10 July 2019, when the draft law was ordered to discuss the Social Policy Committee as a guarantee committee; he issued a resolution on 5 September 2019 recommending that the Chamber of Deputies give its consent to the bill. The same recommendation was issued in the resolution of 3 September 2021 by the Permanent Commission for Family, Equal Opportunities and National Minorities. At the second reading of 25 September 2019, several amendments were tabled in the framework of a detailed debate, three of them to amend the contested provisions. In its resolution of 3 October 2019, the Guarantee Committee adopted a non-recommendation on them. The third reading took place on 1 November and 6 November 2019 and the draft law as amended was approved.
9. The bill was passed on to the Senate Chamber of Deputies on 8 November 2019 and discussed at its meeting on 4 December 2019. The Senate returned the bill to the Chamber of Deputies with an amendment containing the new text of Article II (2). On 17 December 2019, the Chamber of Deputies voted on the draft law, as amended by the Senate, and maintained its text. The President's signed law was delivered to the House on 18 December 2019. Finally, the Chamber of Deputies concluded that it was limited to a description of the course of the legislative process and that it was up to the Constitutional Court to examine the question of the inconstitutionality of the contested provisions.
Statement by the Senate
10. The Senate addressed the content of the contested transitional provisions of Act No. 363 / 2019 Coll. and reproduced the legal opinion of a group of Senators that these contravenes the principle of predictability and trust in law and are contrary to the principle of equality and the right to aid from the State in the course of parenthood. The Senate also summed up the course of the debate on the draft law, in which criticism of the chosen criterion of increasing the total amount of the parental contribution was expressed, and also accentuated by some of the senators, according to which the change in the amount of the benefit was to concern only children born after the date of entry into force of the amendment to the Act on State Social Support. On 8 November 2019, the Senate stated that the bill was referred to it by the Chamber of Deputies and was discussed in the Senate as print No 151 (12th term). The Senate Organizing Committee ordered the press to discuss the Committee on Health and Social Policy as a guarantee committee and a constitutional committee. Both committees recommended, after discussing the draft law on 3 December 2019 and 27 November 2019 respectively, that the draft law be returned to the Chamber of Deputies with an amendment. He extended the range of persons entitled to a new parental allowance of CZK 300,000 to parents who had already exhausted the parental allowance at the date of entry into force of the new regulation, but still care for children or children under the age of four who are the youngest in the family. The Senate discussed the bill on 4 December 2019 and adopted a resolution after the debate to return the bill to the Chamber of Deputies as amended by the amendment proposed by both committees. In the vote, 70 of the 74 senators voted in favour, no one was against it.
Government observations
11. The Government based its observations on the nature of the right to parental benefit. There is a public-law relationship between the former and the latter, in addition to the obligation of the parent to provide proper personal and full-day care for the child, a commitment by the State to pay the parents a certain amount to compensate in part for the loss of income or a substantial reduction of the income. The legislature chose the existence of a lasting public relationship between the parent and the State in determining the number of persons authorised to receive the increased parental contribution. The Government refers to the RIA report, which provides a comprehensive justification for the choice of legal regulation, taking into account the purpose of the adjustment of the parental contribution, including its impact on child care. According to the Government, this is not a penalty against those entitled who have already exhausted the parental contribution.
12. As regards the appellant's objections to the intertemporal effects of the adjustment adopted, the Government stated that it was a standard example of false retroactivity, which is generally acceptable. The Government considers that the chosen criterion for paying the parental allowance in increased amounts is neither arbitrary nor discriminatory. The legislature did not make payment of a higher amount of parental contribution conditional on criteria such as race, religion, sex, origin of parents, family status, place of residence or birth or amount of property. The criterion chosen is justified, rational and free of any attack on human dignity or equality in rights. The Government also stressed that the contested provisions did not reduce the existing rights of beneficiaries. There has also been no breach of the principle of equality, as persons in an equal position are those who are entitled to benefit from the State at the time of the application of Act No 363 / 2019 Coll. at the time of application. The Government's statement rejects the argument of predictability, legal certainty and legitimate expectations. Such expectations cannot be based on the expression of the Minister for Labour and Social Affairs on social networks regarding its preferences of the parties to the proposed legislation. The principle of legitimate expectations as an asset interest can be established only by a valid and effective legal standard, enshrined in national law and supported by established case-law.
13. Nor has the contested provisions infringed the right of childcare parents to receive adequate assistance from the State pursuant to Article 32 (5) of the Charter. Social rights guaranteed by the Czech constitutional order can only be claimed within the limits of the laws and using the principle of restraint. In assessing the rationality of the contested regulation, account should be taken, as the government has repeatedly accentuated, of the budgetary implications of increasing the parental contribution, as the legislator is limited by financial, economic and other socio-economic indicators. The government has stated that the scope of social security in a democratic society is subject to political consensus, and legislation should therefore be entrusted primarily to legislators. The contested provisions do not affect the core of parents' right to aid in parenthood, as the parental contribution, as one form of such assistance, does not cancel or reduce it. The legislation pursues a legitimate objective and the means used is reasonable to achieve it.
14. According to the Government, the rationality of the measures has also been dictated with regard to the sustainability of public finances, which in itself is a fundamental precondition for the existence and exercise of social rights. The legislation implemented by Act No 363 / 2019 Coll. cannot be seen as a fundamental reduction of the standard of social law in relation to parents who have already benefited from the parental contribution. The device used was therefore reasonable (rational), even if it did not have to be best or most effective. The legislator was also guided by the budgetary implications of the increase in the parental contribution, which in the legally used version represented more than CZK 2.6 billion.
Replication of the appellant
15. In response to the Government's observations, the appellant stated that this was such an intense interference in the law guaranteed by Article 32 (5) of the Charter, as well as a breach of the principle of equality, that it could not be argued that the principle of restraint was not applicable. Indeed, the contested legislation provides for a different treatment of two groups of parents in a living situation. The appellant continues to dispute the argument which qualifies the method used as false retroactivity. It insists that legitimate expectations may also be based on established practice of the administration or its assurance. It does not agree with the claim that the parental contribution should be considered as a benefit to which parents are compensated for the loss of income from gainful employment in their personal care. He believes that the condition of personal care is very loose in the law; The benefit is closer to the birth benefit. The appellant considers the reasoning in the explanatory memorandum to Law No 363 / 2019 Coll. and the RIA report to be insufficient. The criterion of the existence of a legal relationship between a parent and a State could only be legally applied if it was not dependent on the will of the parents, for example if the existence of a legal relationship with the child's age would be relevant.
Proceedings before the Constitutional Court
16. According to Article 64 (1) (b) of the Law on the Constitutional Court, a group of at least 41 Members or a group of at least 17 Senators has the right to apply for the annulment of the law or its individual provisions. This proposal was made by a group of 53 senators. In accordance with Article 64 (5) of the Law on the Constitutional Court, as amended by Act No. 320 / 2002 Coll., it attached to it a signature document to which each of them individually confirmed that it was attached to the proposal.
17. The proposal fulfils all legal requirements and is admissible under Section 66 of the Constitutional Court Act. At the same time, there are no grounds for terminating the procedure under Section 67 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll. The Constitutional Court has also considered positively whether it is entitled to review part of Act No. 363 / 2019 Coll., in the light of its view that the proposal to repeal the Act or its individual provisions cannot in principle be challenged by amending legislation. As a general rule, such legislation cannot be granted a separate legislative existence, since it is obtained only as part of the legislation amended [Resolution sp. zn. Pl. ÚS 25 / 2000 of 15.8.2000 (U 27 / 19 SbNU 271) or sp. zn. In the present case, however, it is not a legal standard amending the Act on State Social Aid, but the transitional provisions of its amendment by Act No 363 / 2019 Coll. The Constitutional Court therefore found the derogatory proposal to be morally negotiable and adds that, in paragraph 37, the constitutional review of the contested transitional provision is also linked, inter alia, to a situation in which the "transitional provision added to its amendment by Act No. 303 / 2013 Coll. '(the amendment to the Decree).
18. The Constitutional Court decided on the application without a regulation of oral proceedings because it did not intend to take evidence within the meaning of Article 44 of the Law on the Constitutional Court. Further clarification could not be expected from the oral hearing.
Legislative procedure for the adoption of the contested provisions
19. The Constitutional Court examined in the terms of Paragraph 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., whether the contested provisions of Act No. 363 / 2019 Coll. were adopted and issued within the limits of the Constitution of the Czech Republic by a specified competence and by a constitutionally prescribed manner. It concluded that there is nothing to blame the legislator in this regard. Moreover, the parties and the intervener do not mention any legislative deficit. For the sake of clarity, the Constitutional Court refers to a summary of the legislative process in the statements of the Chamber of Deputies and the Senate.
Derogation of the contested provisions
20. The valid and effective provisions of Act No. 363 / 2019 Coll., in which the cited text is highlighted by the applicant, are as follows:
"Transitional provisions
(1) Parental allowance of the amount in accordance with Act No. 117 / 1995 Coll., as effective from the date of entry into force of this Act, is due from the calendar month in which this Act takes effect, also to parents who care for a child or children up to the age of 4 years who are the youngest in the family, and at the same time did not draw on that date the total amount of parental contribution to that child or children in accordance with Act No. 117 / 1995 Coll., as effective before the date of entry into force of this Act. At the same time, when determining the entitlement and the amount of the parental allowance under Act No. 117 / 1995 Coll., as effective from the date of entry into force of this Act, the amount of parental allowance paid in the care of the child or children shall be taken into account for the period before the date of entry into force of this Act. The Office of Labour of the Czech Republic - Regional Branch and Branch for the City of Prague shall deliver a written communication to the recipients of the parental contribution no later than the end of the calendar month following the calendar month in which the Act takes effect, on the change in the amount of the parental contribution; This communication shall not be delivered to its own hands.
(2) In the case of a parent who, although caring for a child or children under the age of 4, is the youngest in the family, but has already exhausted the total amount of parental allowance in accordance with Act No. 117 / 1995 Coll., as effective before the date of entry into force of this Act, the difference between the total amount of parental contribution in accordance with Act No. 117 / 1995 Coll., as effective before the date of entry into force of this Act, and the maximum amount of parental contribution in accordance with Act No. 117 / 1995 Coll., as effective from the date of entry into force of the Act, is no longer. '
Meritorious review of the proposal
Design of parental contribution
21. Parental allowance is a so-called non-tested dose, i.e. provided regardless of income. The entitlement to a parental allowance (most generally) is linked to the personal and full-time care of the child (the youngest child in the family), lasting up to a maximum of four years of age and is limited by the total amount. The concept of benefit has been passed since 1995, when it was taken over by the Act on State Social Aid (until 1990, the maternity allowance), by changes that modified the conditions for entitlement to its payment (closer to Koldinská, K., Tröster, P. et al. Social security law. 7th edition. Praha: C. H. Beck, 2018, p. 210 to 214). The amendments were also made by transitional provisions and characterised by the establishment of increasingly flexible conditions for which entitlement was bound.
22. Significant conceptual changes to the legislation of the parental contribution were made with effect from 1.1. 2008 on the basis of Act No. 261 / 2007 Coll., on the stabilisation of public budgets. From this date parents can draw the dose, in addition to the "classical" method and slower pumping, in the so-called multi-speed structure and corresponding three measurements in fixed amounts, determined between two, three and four years of age of the child (then increased area of 11 400 CZK per month, basic area of 7 600 CZK per month, reduced area of 3 800 CZK per month). The choice of the period for receiving the parental allowance and its amount is enacted as unchanged and cannot be applied retroactively.
23. Since 1 January 2012, further changes to the legislation of the parental contribution have become effective - in particular in Section 30 of the Act on State Social Support and Transitional Provisions - by Act No 366 / 2011 Coll., amending Act No. 111 / 2006 Coll., on aid in material need, as amended, Act No. 108 / 2006 Coll., on Social Services, as amended, Act No. 117 / 1995 Coll., on State Social Support, as amended, and other related laws. Under Section 30 of the Act on State Social Support, the parental contribution belongs to the parents who, for a full calendar month in person, take proper care of the child who is the youngest in the family, up to a maximum of four years of age and until the total amount of CZK 220 000 has been paid. Under the transitional provisions, the parent could decide whether to draw the benefit from 1.1.2012 under previous legislation or under new, more favourable aspects.
24. The legislation implemented by Act No. 200 / 2017 Coll., amending Act No. 117 / 1995 Coll., on State Social Support, as amended, and other related laws. Here, parents were given a more flexible decision on how much and how long they would receive the benefit. In order to determine the amount of the parental allowance, the daily basis of assessment for determining the financial assistance in maternity or sickness in connection with the birth or taking over of the child (according to Act No. 187 / 2006 Coll., on sickness insurance, as amended) is still decisive. The upper limit of a benefit of CZK 11 500 per calendar month has been abolished and the parental allowance can be drawn up up to a maximum of 70% of the daily basis of assessment, up to a maximum of CZK 32 640. This reduced the duration of the benefit, which must be at least six months.
25. Other changes to the legislation were implemented by Act No. 363 / 2019 Coll., the centre of the novel became materially the increase of the total amount of parental allowance to CZK 300,000. Part of the transitional provisions of the amendment is now subject to constitutional review.
26. Parental allowance has become significantly more liberal following amendments, mainly due to the option of drawing in the "three-speed" mode. According to the 2011 amendment, the parental contribution also belongs to parents who place a child in a nursery or other similar establishment under the given legal conditions, which had a significant impact on the decision of mothers to stay at home with the child. The change made by Act No. 200 / 2017 Coll. shifted by removing the monthly limit of parental contribution towards the dominant total contribution (in the amount of CZK 220 000), which can be exhausted after six months (in more detail Votek, J. Czech family policy: Quo vadis? Social policy forum No 3 / 2001, 2-12).
27. From the last period a significant finding in the relation to the parental contribution became a plenary finding of 9.1.2013 sp. zn. Pl. ÚS 31 / 09 (N 5 / 68 SbNU 89; 42 / 2013 Coll.), which dealt with the proposed derogation of transitional provisions of the Act on the stabilisation of public budgets (point 22 above). Its content is the interpretation of the rules governing the parental contribution in particular in the light of the contested amendment and the legitimate objectives of the amendments are defined in paragraph 41. This is mainly a fundamental change in the use of the parental allowance, following its size, and the purpose of such an adjustment is to "participate in the decision-making process of the entitled parent at the choice of the time, manner and amount of drawing of the benefit '. The contested provisions also pursue the rational objective of introducing rules on the determination of the amount of the parental allowance for those parents who received the parental allowance under legislation effective before 1 January 2008 and could not make the choice of entitlement to the parental allowance under the new legislation, although the entitlement still exists. The existence of these rules was introduced in order to respect the principle of equality between parents receiving a parental contribution, calculated according to different rules.
Intertemporal
28. The contested legislation distinguishes, for the purpose of drawing (or not) the remaining CZK 80,000 into a newly determined total amount of CZK 300,000 of parental allowance, two groups from existing recipients of the benefit. First group whose rights are the content of the first point of Article II of the transitional provisions of Act No 363 / 2019 Coll. (hereinafter referred to as the "transitional provisions"), those parents who did not receive the total amount of CZK 220 000 under the Act on State Social Support at the date of its effectiveness, i.e. on 1 January 2020. The second group, referred to in the second paragraph of the referred article of the transitional provisions, is the parent, even at the latest at the time of the entry into force of the amendment caring for the child or children under the age of four, the youngest in the family, but the total amount (up to CZK 220 000) has been exhausted for the longest time at the effective date of the amendment. The difference between the current and the new total amount of the parental contribution, as noted in the conclusion of the second point of Article II, is no longer relevant.
29. The criterion of the distinction between the two groups of recipients of the benefit was therefore the timing of the date of entry into force of Act No. 363 / 2019 Coll., i.e. 1 January 2020 (Article III of the amendment). However, it should be added that two preceding facts are directly linked to this criterion. One is the choice of the time and thus the amount (in intervals) of the total amount of parental contribution that had to be made - for all parents without distinction - already when claiming entitlement. The second is the result of the exhaustion of the total amount of the parental contribution before the date of entry into force of the amendment. This means, although the text of the amendment does not explicitly state that parents in the second group have ceased to be entitled before 1 January 2020.
30. The transitional provisions in question are based on an improper retroactivity method. It is a constitutional notoriety [the finding of 4.2.1997 sp. zn. Pl. ÚS 21 / 96 (N 13 / 7 CollU 87; 63 / 1997 Coll.), the finding of 19.4.2011 sp. zn. Pl. ÚS 53 / 10 (N 75 / 61 CollU 137; 119 / 2011 Coll.), as set out above in point 17 of the quoted finding of sp. zn. Pl. ÚS 1 / 14 and others], that while the true retroactivity is fundamentally inadmissible, in the event of retroactivity is the principle of its admissibility, if it is a provision appropriate and necessary to achieve the legal objective. Intertemporal provisions of other social security legislation use incorrect retroactivity quite commonly - it is sufficient to mention Section 168 of Act No. 187 / 2006 Coll., on sickness insurance, as amended, or Section 68 of Act No. 155 / 1995 Coll., on pension insurance. Even from these aspects, the use of false retroactivity in a given situation is acceptable. In particular, this means that the parent group referred to in point 1 of Article II of the transitional provisions to which, at the relevant date of the law, the individual monthly amounts of the total amount of the parental contribution are paid on an ongoing basis is subject to new legislation, whereas for the second group referred to in point 2 of Article II of the transitional provisions a "negative solution 'has been explicitly chosen: its entitlement to the parental contribution has been exhausted in its entirety, the entitlement has therefore expired and the false retroactivity does not apply to it.
31. Parental allowance is a social benefit closely related to the personal care of parents; the benefit to which the caring parent is entitled under the statutory conditions and, if applicable, the relationship between the parent and the State can be terminated for several reasons (various social events), for which there is the importance of the exhaustion of the total social benefit, the completion of the fourth year of age of the child and the birth of another child in the family, in order to meet the requirements. Thus, the state determines the limits on the provision of this benefit for social support and leaves the caring parent to choose to plan his personal, family and professional life as best as it pleases him to do so by adjusting the use of the parental allowance.
32. Therefore, the Constitutional Court does not consider the distinction criterion chosen by the legislator in the contested legislation to be arbitrary, for the reasons set out above. The need for a lasting relationship between the State and the caring parent at the date of the entry into force of Act No. 363 / 2019 Coll. is justified by the purpose of the legal regulation of the parental contribution, which is intended to enable parents to devote their entire day care period to the (youngest) child in the family. By determining the amount and duration of the parental contribution, the caring parent made a choice, motivated, for example, by a plan for a more early return to the labour market or by other (family) reasons. By using the total amount of the parental contribution, the relationship between the parent and the state has ceased to exist and the law has not found any reason why the existing legal relationship with retroactive effect should be restored.
33. The appellant points out, as was also stated in the Senate's observations on the proposal, as a matter of fact two essential legal facts. The framework for the provision of monthly amounts of the parental allowance up to the total set amount is certainly the period of personal, full-time and full-time care of a child under four years of age and the fact that he is the youngest child in the family. However, the need for additional legal arrangements - in addition to transitional provisions - providing for an express derogation, which provides that, in addition to the entitlement to the benefit already lost, the conditions for further performance are adjusted for the same reason.
34. According to Section 54 (1) of the Act on State Social Support, entitlement to benefit does not cease to exist over time, unless otherwise provided by that Act. The provisions relating to the loss of entitlement are therefore left to the specific wording of the law. An exception to the principle that the claim ceases to exist by the exhaustion of the total amount of the social benefit is the text of the sentence of the second point 4 of Article II of the transitional provisions of Act No. 200 / 2017 Coll. (see paragraph 24 above): "If the entitlement to the parental allowance has already been terminated because of the exhaustion of CZK 220 000 and the parent continues to care for at least 2 children born at the same time until 4 years of age, he shall be entitled to a parental allowance of CZK 110 000 from 1 January 2018."
35. However, similar legislation on transitional provisions does not contain the Act on State Social Aid, but also its amendment by Act No 363 / 2019 Coll. does not contain. The text of Paragraph 30 (1) of the State Social Aid Act, which regulates the conditions for entitlement to the parental allowance, remains effective: "A parent who, for the entire calendar month, personally and properly looks after the child who is the youngest in the family shall be entitled to the parental allowance up to a maximum of four years of age of that child, at most until he has been paid for the parental allowance due to care of the same youngest child in the family, unless otherwise specified. If the youngest child in the family is 2 or more children born at the same time (hereinafter, multiple children), this parent is entitled to 1.5 times the amount of CZK 300,000." All that remains to be said is that, with the exception of the amount, the text of the law is identical to its wording before the amendment.
36. The Constitutional Court concludes here that the contested part of the transitional provisions of Act No 363 / 2019 Coll. does not infringe the principles of constitutional intertemporal regulation. The legislature has the power to adapt the transitional provisions in a manner consistent with the meaning and objectives of legal regulation when changing legal regulation.
Guarantees of the right of parents caring for children to help the state
37. According to the appellant, the contested legislation infringes the right of parents caring for children to be assisted by the State, as guaranteed by Article 32 (5) of the Charter. However, this assistance, which the Charter does not specify, is of a diverse form, can be both material and intangible in nature. For the most part, it is enshrined in social security legislation, to a large extent, by the benefits of state social assistance as a child allowance, birth and parental allowance. However, the expression of social support of the family is also, for example, a tax advantage (cf. Resolution sp. zn. III. ÚS 3339 / 14 of 22.1.2015). When assessing interference in law pursuant to Article 32 (5) At the same time, it should be borne in mind that the primary responsibility for dealing with the life situation associated with the birth of the child lies with the parents. State aid should always be provided in a subsidiary way. The Constitutional Court has already in the past and in the context of the parental contribution concluded that the benefits of State social assistance are only commencing if the individual's living situation cannot be addressed by the provision of benefits from the first pillar of the insurance scheme, which also includes sickness insurance, which essentially takes precedence over the social security benefits provided for the same reason (the finding in point sp. zn.
38. The Constitutional Court, in its established decision-making practice, takes the view that both the application and interpretation of social rights enshrined in the title of the Fourth Charter are understated, as it is aware of the fact that the legal regulation and its application are limited by the possibilities of the State budget, supported by the results of the State's management. Within this framework, the limits set by the relevant Articles of the Charter governing social rights may apply. At the same time, these are matters of political nature. Therefore, the Constitutional Court does not, in principle, leave the legislature to assess the effectiveness and appropriateness of the legal regulation in this field and, except in cases of established non-constitutionality, interfere. Thus, the concept of social rights is that they are not unconditional in nature and can only be invoked within the limits of the laws in force (cf. Article 41 (1) of the Charter or other provisions referring to legal provisions such as Article 32 (6) of the Charter). This lack of direct enforceability is reflected in the need for their proper legal clarification, which is also a condition for the specific implementation of individual social rights [see the findings of the Constitutional Court sp. zn. Pl. ÚS 8 / 07 of 23.3.2010 (N 61 / 56 SbNU 653; 135 / 2010 Coll.) and sp. zn. ÚS 2 / 08 of 23.4.2008 (N 73 / 49 SbNU 85; 166 / 2008 Coll.)].
39. However, the discrimination granted by the legislature in Article 41 (1) of the Charter and Article 32 (6) of the Charter is not unlimited. The legal definition of the conditions for implementing social rights must not conflict with fundamental constitutional principles and must not interfere with the very essence of these fundamental rights. As in the case of fundamental rights and freedoms directly enforceable under the Charter, the legislator must also respect, in the case of social rights, the rule referred to in Article 4 (4) of the Charter according to which, when applying the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated (sp. zn.
40. For the reasons set out above, the Constitutional Court's case-law promoted and established, as a methodological tool, the review of the legislature's intervention in the field of social rights, the so-called "rationality test '(rationality test) consisting of the following four steps: 1. the definition of meaning and substance, i.e. essential content (core) of economic, social or cultural law, 2. the assessment of whether the law does not affect the very existence of social law or the actual realisation of its essential content, 3. the assessment of whether the legal regulation pursues a legitimate objective, i.e. whether it is not a arbitrary substantial reduction of the general standard of fundamental rights, and the fourth question whether the legal means used to achieve that objective are rational (reasonable), although not necessarily best, more efficient or wisely [find sp.
41. The essential content of parents' right to help children by the State is defined by the Constitutional Court as a permanent provision of a minimum social standard or guarantee of a minimum standard of human dignity. In the past, therefore, the Constitutional Court has found no constitutional non-conformities if parents do not achieve some type of support due to failure to comply with the legal conditions, provided that they still have other benefits of state social assistance, even financially less significant [the find sp. zn.
42. In the present case, the Constitutional Court found no intervention in the essential content of the basic law in question. Parental allowance is only one form of assistance to parents caring for children. The amount of the parental contribution before the contested amendment was undoubtedly not an intervention in the essential content of the law guaranteed by Article 32 (5) of the Charter. If the total amount of the parental allowance was subsequently increased for only a part of the parents, without any interference in the essential content of the basic right for others (with a claim already deceased, see the intertemporal criterion described above). It is therefore not necessary to go from the second step of the test to the proportionality test, the result of which alone could justify interference with the essential content of that right.
43. The assessment of the contested legislation according to the third and fourth steps of the rationality test corresponds to the question of whether the legal regulation pursues a legitimate objective and whether it does so in a way that can be considered a reasonable means of achieving it. The appellant points out here that part of the review of the rationality of the legal regulation must be to take into account the fundamental principles of the rule of law, such as the prohibition of insolence and the principle of equality. In relation to the principle of equality, the Constitutional Court judges that "[n] equality in social relations, if it is to affect fundamental human rights, must achieve an intensity which, at least in a certain way, calls into question the very essence of equality. If the determination of different terms and conditions of social benefits, depending on the justified needs of certain groups of persons, were to be regarded on a flat-rate basis as a breach of fundamental rights and equality in rights, that would in fact mean that, for social benefits, there would be no condition for entitlement or the amount of social benefits, consisting, for example, of the age, time or individual assessment of the social and economic situation, nor could it be established" [finding sp. zn.
44. The purpose of the parental allowance shall be at least partial compensation for loss or reduction of income from the gainful activity, enabling parents to take more intensive care of the personal care of the child. The State considers personal and, as far as possible, full-day parental care of the child to be an important public interest, justified by physiological, psychological factors (creating a bond between the child and the caring person), social (education and socialization of the child in the family), as well as practical (availability, factual or financial, nursery or maternity schools). In summary, the purpose of this benefit is to improve the conditions of families caring for young children (Koldinská, K., Tröster, P. Social security law, cited in sub 21, p. 210).
45. The legal objective of the contested part of the transitional provisions of Act No. 363 / 2019 Coll. is therefore defined, through the public interest, in the previous paragraph. The Constitutional Court, having regard to the caselaw cited, has not concluded that this objective would not be constitutionally consistent and that it should lead to an arbitrary, fundamental reduction in the standard of the relevant social law.
46. The following final step in the rationality test is closely linked to the appellant's central objection, which is a violation of the principle of equality in the light of unjustified discrimination. It would not be possible to establish the rationality of the contested legislation if the legal means used to achieve the stated objective were to deny the postulates of a democratic rule of law, which include the principle of equality and the prohibition of discrimination, whether direct or indirect. However, the Constitutional Court did not find any violation of those principles. The contested provisions distinguish groups of childcare parents under four years of age depending on whether or not the caring parent completed the parental contribution as at 1 January 2020. According to the Constitutional Court, these are not comparable groups. The existence of a lasting legal relationship between the state and a caring parent is a fundamental fact; As already stated in Part VII. b /, it is generally not desirable (and the law did not provide otherwise) to include a legal relationship that has already expired in view of the principles governing transitional provisions. In carrying out the case-law of the Constitutional Court on the basis of a test (direct) of discrimination [it is a four-step test asking for the first comparability of individuals or groups, 2. whether they are treated differently on the basis of one of the prohibited grounds; 3. whether the different treatment of the complainant is subject to the imposition of a burden or a denial of good; and 4. whether the different treatment is justified by adequate monitoring of the legitimate objective; See, for example, the finding of 28.1.2014 sp. zn.
47. The Constitutional Court considers the contested legislation to be rational. A positive answer to the question of whether this is a reasonable, albeit not the most appropriate, wisest or best legal means to achieve a legitimate regulatory objective, gives all the steps of the test, with the conclusions of the fourth step even excluding any other option. The violation of the rights of childcare parents guaranteed by Article 32 (5) of the Charter was therefore not found by the Constitutional Court.
Objections to trust in law and legitimate expectations
48. The group of Senators argued that parents who had completed the total amount of the parental contribution before the entry into force of Act No. 363 / 2019 Coll. could still fulfil the conditions of personal and full-time care of the (youngest) child in the family up to four years of age due to the choice of the time and amount of the contribution. Such parents who made their choice at the same time as the entitlement was established and, knowing all its conditions, including the amount of the total amount equal to others, acted in confidence in the law. Their legitimate expectations of maintaining the same rules of parental contribution as parents whose choice was different should also be based on the promise of the Minister for Labour and Social Affairs that they would also be subject to an increase in the total amount of the parental contribution.
49. The objections raised by the belief in the law and the established legitimate expectations of this (second, see paragraphs 28, 29 above) group of parents are jointly linked to the principle of legal certainty, which is an important attribute of the democratic rule of law in Article 1 (1) of the Constitution of the Czech Republic. It cannot be overlooked that the question of the legitimate expectations of the recipients of the parental contribution was addressed in the light of the property aspect of the case already cited in sp. zn.
50. The Constitutional Court argues with legitimate expectations, particularly in the context of the review of the constitutionality of the content, application and interpretation of property rights. It can be added that legitimate expectations are seen as a framework principle of legal certainty (Groussot, X. General Principles of Community Law). Groningen: Europa Law Publishing, 2006, p. 202-212, here with reference to SDEU Case C-63 / 93 Duff [1996]). The Constitutional Court finds, inter alia, that the substance of legitimate expectations may be an asset interest which falls under the protection of Article 11 (1) of the Charter and Article 1 of the Additional Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms [the finding of 19 April 2011 sp. zn. In a negative finding of 29.1.2019 sp. zn. In relation to social rights (dispute over national adjustment and the amount of social benefit, with a subsequent statement of infringement of Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms), the European Court of Human Rights in the case of Bélané Nagy v Hungary, Complaint No 53080 / 13 (Grand Chamber judgment of 13.12.2016) stated that, under the sufficient basis in national law (Sufficient basis in national law), legitimate expectations (established basic proprietary interest under the national law) can be established; see in particular paragraphs 75, 77, 79 of the judgment).
51. Therefore, the applicant's argument about the relevance of the promise of the Minister for Labour and Social Affairs, which was expressed in the public space, is all the more out of line with the claim of legitimate expectations (link to the Twitter Minister from 26. 11. 2018 to p. 5 of the proposal). Such a promise, also confirmed outside the legislative process, could not give rise to the legitimate expectations of the second group of recipients of the parental contribution.
52. The post of trust in law as an aspect of the principle of legal certainty cannot be separated from these conclusions. The appellant submits that confidence in the right of a forgotten group of parents has been disappointed, as the purpose of providing a parental contribution, such as non-income benefits, has been denied in terms of flexibility in drawing the contribution. The state is supposed to motivate parents to return to work through the choice of the time taken for their parental contribution, but the legislator's measures punish the parents who did so. At the same time, a diverse group of parents was disadvantaged (at least from 13 months of age of the child at the earliest, the most numerous group of parents who had distributed their contribution to the usual period, ending with two and a half to three years of age). In addition, the previous increase in the total amount of the parental contribution was also applied to those parents who had already drawn the total amount of the parental contribution previously established, as happened for multiple parents (according to the transitional provisions of Act No. 200 / 2017 Coll., also points 24, 34, 35).
53. However, these arguments are missing the essential conclusions of the Constitutional Court on the cessation of the legal relationship between the parent as the recipient of the benefit and the State as a result of the overdraft of the previously fixed total amount of the parental contribution before the transitional provisions of Act No 363 / 2019 Coll. This inconsistency cannot be bridged by interpretation; It was the wording of the transitional provisions in question that decided on the criterion applied and now addressed by the Constitutional Court in terms of rationality. If it states in the most general sense that legitimate expectations can be based on a "well-founded idea of the future legal situation" (Wintr, J. Principles of Czech Constitutional Law. 5th edition. Pilsen: Aleš Čenek, 2020, p. 26), then it cannot be concluded that the principle of legal certainty in the aspects of trust in law and legitimate expectations has been infringed.
Conclusion
54. The Constitutional Court found no reason to abolish the contested provisions of Act No 363 / 2019 Coll. and concludes that the contested legislation is not constitutional in conformity with the principles of predictability, the protection of trust in law and legitimate expectations or the principle of equality. The Constitutional Court cannot accept the appellant's request to comment beyond the scope of the matter on the constitutionality of the current concept of entitlement to the choice of the rate of drawing the parental contribution. The Constitutional Court's task is to decide on a specific proposal for the repeal of the law or its individual provisions in the proceedings under Article 87 (1) (a) of the Constitution of the Czech Republic and it is not entitled to express itself in an abstract manner and to take opinions on conceptual political issues.
55. The Constitutional Court therefore rejected, pursuant to Paragraph 70 (2) of the Law on the Constitutional Court, the proposal of a group of Senators to abolish Article II of the transitional provisions in Part 1 and in Section 2 of Law No 363 / 2019.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | Found No. 14 / 2022 Coll., on the application for annulment of Part of Act No. 117 / 1995 Coll., on State Social Support, as amended, in the transitional provisions of Article II of Act No. 363 / 2019 Coll., amending Act No. 117 / 1995 Coll., on State Social Support, as amended |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 26.01.2022 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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