The Constitutional Court found No 170 / 2015 Coll.
The Constitutional Court found on 12 May 2015 sp. zn.
Valid
The Constitutional Tribunal found
Text versions:
03.07.2015
170
FIND
The Constitutional Court
On behalf of the Republic
On 12 May 2015, the Constitutional Court decided, under sp. zn. Pl.
as follows:
The proposal to repeal Article 41 (1) of Act No. 435 / 2004 Coll., on Employment, as amended by Act No. 367 / 2011 Coll., is rejected.
Reasons
Recital of the proposal
1. The Constitutional Court was served on 10 December 2013 with the application of the Regional Court in Hradec Králové (hereinafter referred to as "the appellant ') pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as" the Constitution') in conjunction with the provisions of § 64 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court ') on the abolition of § 41 (1) of Act No. 435 / 2004 Coll., on Employment, as amended by Act No. 367 / 2011 Coll. (hereinafter referred to as" the contested provision').
2. The applicant has submitted a proposal in connection with its decision-making activities; as a competent court in the administrative justice sector, the applicant, Mr M. M., has, under point 28 Ad 6 / 2013, brought proceedings against decisions of the Ministry of Labour and Social Affairs (hereinafter referred to as "the Ministry ') No. 2012 / 16971-421 of 16.4.2012, which confirmed the decision of the Labour Office of the Czech Republic (hereinafter referred to as" the Labour Office') - Regional Branch in Hradec Králové of 13.2.2012 on the non-recognition of unemployment aid
3. The appellant stated that, in the above case, M. M. and his employer, which was the Czech Republic - the Office for the Representation of the State in Property, Hradec Králové, had a fixed-term employment relationship from 1 October 2008 to 30 September 2009. The duration of the contract was extended by repeated amendments to the contract until 31 January 2011. From 27. 12. 2010 until 9. 2. 2012 M. was incapacitated, during which he had already been told on 31. 1. 2011 he completed a temporary employment contract. The application by M. M. for unemployment benefit of 13.2.2012 was not granted by the competent employment office and decided not to grant unemployment benefit. For legal qualifications, the provision of § 39 (1) (a) in conjunction with § 41 of Act No. 435 / 2004 Coll., on Employment, as amended, (hereinafter referred to as "the Employment Act ') was the subject of the provision of Paragraph 39 (1) (a), in conjunction with § 41 of Act No. 435 / 2004 Coll., as amended, since, in the relevant period of 2 years before the entry into force of the Employment Act, M. M. (hereinafter referred to as" the Pension Insurance Act', he obtained a period of retirement insurance period of only 11 months and 19 days, although the Employment Act requires, for the purposes of the granting of unemployment benefits, an insurance period of employment or of another occupation or of replacement period of employment) in the final period of at least 12 months. The preceding period of employment (from 1.10.2008 to 12.2.2010) could not be taken into account as it did not fall within the relevant period of 2 years prior to inclusion in the register of jobseekers. The decision of the First Instance was also confirmed by the Ministry as an appeal administrative body. The competent decision of the Ministry of Finance of 16 April 2012 challenged the claimant by an action pursuant to Article 65 (1) of Act No. 150 / 2002 Coll., the Administrative Rules.
4. The appellant suspended the procedure and submitted to the Constitutional Court a proposal pursuant to Article 95 (2) of the Constitution in conjunction with the provision of Section 64 (3) of the Constitutional Court Act on the annulment of Section 41 (1) of the Employment Act, as amended by Act No. 367 / 2011 Coll.
5. According to the appellant, the current wording of the contested provision of the Employment Act, enshrined in Act No. 367 / 2011 Coll., amending Act No. 435 / 2004 Coll., on Employment, as amended, and other related laws, "denied the applicant's legitimate expectation of providing adequate material security in the form of employment aid, at which the amount of the income obtained by the applicant would be reflected by law and by the amount of the income obtained. 'The President of the Constitutional Tribunal shall, in accordance with the procedure laid down in Article 108 (3) of the Treaty on the Functioning of the European Union, take part in the adoption of this Decision. First, he described the legislation in force until the adoption of Act No. 367 / 2011 Coll., which amended the Employment Act and introduced, inter alia, the contested legislation of the applicable period in which the applicant must obtain a pension insurance period by shortening it from three years to two years. According to the appellant, it was introduced into the Czech legal order of discrimination against persons who were employed in a fixed-term employment relationship, they became incompetent during the period of that relationship and their employment ended during the period of temporary incapacity, the existence, course or duration of which could not objectively affect.
6. In this context, the appellant argued that the new legislation introduced by Act No. 367 / 2011 Coll. with effect from 1 January 2012 interrupted the conceptual and logical linkage with Sections 26 and 27 of Act No. 187 / 2006 Coll., on sickness insurance, as amended, (hereinafter referred to as the "sickness insurance Act '), which allow temporary incapacity to be recognised and to receive sickness in principle for a maximum period of two years. If the claimant for unemployment benefit was employed and retired before the onset of disability in previous employment for a period of 12 months (i.e. 1 year) prior to the maximum period of temporary incapacity with entitlement to sickness benefit, he has complied with the legal conditions for granting unemployment benefit under the former legislation. The appellant concluded this argument by stating that, by discontinuing this conceptual and logical correlation, the operative period provided for in Paragraph 41 (1) of the Employment Act may be that it will relate exclusively to the period when the applicant for employment could not be employed or could not be actively interested in and seek new employment, for objective reasons of temporary incapacity for work.
7. In this connection, the appellant stressed the anticonstitutional discriminatory element of the contested provision of the Employment Act, since an employee in an indefinite employment relationship is recognised as being temporarily unable to work and, in so far as this incapacity is not deliberately caused or created as an immediate consequence of the intoxication of an employee or abuse of addictive substances, falls under Section 53 (1) (a) of the Act No. 262 / 2006 Coll., the Labour Code, as amended by Act No. 365 / 2011 Coll., into the legal regime of the protection period in which the prohibition of dismissal by the employer is in force, and it is therefore not possible for the appellant of the contested provision to constitute an obstacle to grant of adequate material security. In addition, an indefinite employee is also protected by Paragraph 53 (2) of the Labour Code, which states: "If a staff member has been given notice before the beginning of the period of protection in such a way that the period of notice should expire during the period of protection, the period of protection shall not be counted against the period of notice; the employment relationship shall end only after the remainder of the period of notice after the end of the period of protection, unless the employee informs the employer that he does not insist on the extension of the employment. '; On the other hand, fixedterm workers end the contract at the end of the period of time and at the same time temporary incapacity prevents them from seeking and acquiring a new job, and therefore, because of the contested provision, they may not be entitled to unemployment benefit (due to failure to fulfil the requirement to obtain the necessary period of pension insurance).
8. The appellant also referred to Paragraph 39 (2) of the Labour Code, which states: "The duration of fixedterm employment between the same Contracting Parties may not exceed three years and may be repeated more than twice from the date of the first fixedterm employment. The renewal of a fixed-term employment relationship shall also be deemed to be an extension... '. It follows that a fixed-term employment relationship may last up to 9 years. According to the appellant, this indicates that there are no flat-rate workers in fixed-term employment, but in a number of cases, on the contrary," model workers' paying taxes to the State budget. According to the appellant, the contested provision in practice results in that, if such an employee is sick for more than a year and his employment is terminated by the end of the period, neither is the element of proportionality, i.e. adequate physical security, given the length of employment and the level of income, but such security is not carried out at all, although a staff member working for 9 years certainly expects both legitimately.
9. The appellant also pointed out that the contested provision and the legal regime of the Employment Act is not the only existing approach to the issue in question in the Czech Republic's legal order, and referred to § 5 (2) (g) of the Pension Insurance Act, according to which the period of temporary incapacity arising at the time of the gainful activity or withdrawal period is considered to be the period of insurance [noted in the Constitutional Court: the duration of temporary incapacity is to be considered as a replacement in the pension insurance period - cf. § 5 (1) (u) in conjunction with § 12 (1) of the Pension Insurance Act in the version effective on 1 January 2012].
10. Finally, the appellant referred to the initiative of a group of Members who, aware of the shortcomings of the contested provision, submitted in Parliament a proposal to amend Article 41 (3) of the Employment Act, which added point (g) to the provision in question, the wording of which contained the wording of Article 5 (2) (g) of the Pension Insurance Act. The appellant added, for the sake of clarity, that the Chamber of Deputies proposed an amendment which would eliminate inequality and the legal barrier to the non-fault impossibility of obtaining an insurance period to meet the legal conditions required by the Employment Act for the granting of unemployment benefits, at its 52nd meeting, held on 20 March 2013, mostly rejected one vote.
11. The appellant concluded his substantive argument by summarising that, according to his conviction, the contested provision denied the principle of legitimate expectations of Mr M. to provide adequate material security when, moreover, he would have fulfilled the conditions for granting unemployment aid before the Act No. 367 / 2011 Coll. was effective. In the appellant's view, the provision does not respect logical interdependence with the provisions of other legislation and is discriminatory against fixedterm workers. The appellant acknowledged that the weaker legal protection of fixedterm workers was legitimate, but expressed the view that it should not be based on facts that cannot be influenced by a natural person (the absence of temporary incapacity and duration). The appellant stated that "he does not live in a greenhouse 'and observes that the change in the contested provision brought about by Act No. 367 / 2011 Coll., is guided by the intention to motivate citizens to find more active employment and by an effort to save public funds. However, according to the appellant," the intention must not and cannot be superior to the legitimate expectations of persons who, under the same conditions (employment) and at the same legal events (temporary incapacity and duration), are, or are, to a different legal status with effect from 1 January 2012...'.
Expression of the Chamber of Deputies and Senate, Government, Ombudsman, Ministry of Labour and Social Affairs and Czech Statistical Office
12. Within the meaning of Article 42 (4) and Article 69 (1) of the Constitutional Court Act, the Constitutional Court sent an application for annulment of the contested provision to the parties and interveners, as well as pursuant to Article 48 (2), in conjunction with Article 49 (1) of the Law on the Constitutional Court, requesting the opinion of the Ministry of Labour and Social Affairs and the communication and provision of synergies by the Czech Statistical Office.
Statement by the Chamber of Deputies of the Parliament of the Czech Republic
13. The Chamber of Deputies informed its President in its observations that the draft Law No 367 / 2011 Coll. was a governmental proposal. In its explanatory memorandum, the Government wrote that it was compatible with both the Constitution and, in particular, Articles 2 and 4 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the "Charter '), that it respected the general principles of the constitutional order of the Czech Republic and was not contrary to the findings of the Constitutional Court and that it was also compatible with the international treaties by which the Czech Republic is bound and does not conflict with the legal acts of the European Union, the case law of the judicial authorities of the European Union, the general legal principles of European Union law or the legislative and draft European Union provisions.
14. As regards the amendment to the contested provision of Paragraph 41 (1) of the Employment Act, the Government stated in its explanatory memorandum that by adjusting the applicable period for the assessment of unemployment benefit claims and retraining aid from the last 3 years to the last 2 years before the entry into the employment register, the legislation of the applicable period will be brought closer to the usual arrangements in other European countries. The aim of this legislation is to motivate job seekers to increase their own activity in finding and maintaining employment.
15. It was further described in the statement the course of the legislative process and it was noted that the law was passed by the necessary majority of Members of the Chamber of Deputies. After its rejection by the Senate, the Chamber of Deputies renegotiated the bill and approved the votes of 108 Members. The Act was delivered to the President of the Republic on 9 November 2011, which signed it on 22 November 2011. The approved act was delivered for signature to the Prime Minister on 28 November 2011. The law was published in the Collection of Laws in the amount of 128 under the number 367 / 2011 Coll.
16. The Chamber of Deputies concluded its observations by stating that the legislature acted in the belief that the law adopted was in line with the Constitution and the Czech legal order. It is up to the Constitutional Court to examine the constitutionality of this law and to give its decision.
Statement by the Senate of the Parliament of the Czech Republic
17. The President of the Senate first drew attention to the fact that, in the context of the changes that were reflected in the law of the Czech Republic under Act No. 367 / 2011 Coll., amending Act No. 435 / 2004 Coll., on Employment, as amended, and other related laws, the Senate has already expressed itself twice for the Constitutional Court [in the case under Sp. V. ÚS 1 / 12 of 27.11.2012 (N 195 / 67 SbNU 333; 437 / 2012 Coll.) and in the case under sp. P. ÚS 52 / 13 of 9.9.9.2014 (219 / 2014 Coll.)], and the observations of the Senate will therefore be largely repeated.
18. In his observations, the President of the Senate further summarised the course of the legislative process. He stated that the Senate had discussed the draft law in question within the limits of the Constitution established competence in a constitutional manner and rejected the draft law on 13 October 2011. However, the Senate reservations did not concern the contested provision. Finally, the President of the Senate left the assessment of constitutionality to the full discretion of the Constitutional Court by submitting the contested provision.
The Ombudsman's observations
19. The Ombudsman (hereinafter referred to as "the Ombudsman"), who joined the proceedings as an intervener, identified in his observations the appellant's view on the allegation of unconstitutionality to abolish the provision. In doing so, he stated that, in his practice, he was repeatedly "meeting the absurd impact of this legislation on the cases of persons who had long-term incapacity for work ', as demonstrated by the attached" Selected case-law of the Ombudsman's inquiry'.
20. The reduction of the period in question, according to the Ombudsman, was unfavourable to the employees who, according to the sickness insurance law, suffered temporary incapacity within 7 days of the end of their employment or just before the end of their employment and lasted 1 year or more (though only a few days). This period is also a period of pension insurance. The guardian pointed out that - contrary to the adjustment of the pension insurance period - temporary incapacity for unemployment benefit is not taken into account. In order to receive the aid, the period of pension insurance must be completed by employment or other gainful activities, at least 12 months in the last 2 years prior to inclusion in the employment register. In practice, therefore, it is sufficient for the applicant for unemployment benefit to be in temporary incapacity 366 days (the law provides for the duration of temporary incapacity for work 380 calendar days, which can be extended by up to 350 days) and no longer qualifies for unemployment benefit. In order to reduce the length of the relevant period from 3 years to 2 years, these jobseekers remain without unemployment benefit even though they often worked long-term and paid premiums.
21. According to the Ombudsman, as a result of the concept of the contested provision, an allogic situation arose when job seekers are referred to the provision of benefits from the system of assistance in a material emergency without, however, often being in a material emergency, so that they can, on the contrary, get into a material emergency without unemployment aid. Therefore, the Ombudsman considers that the existing legislation denies the right to ensure adequate substantive protection by the State in the event of a loss of employment (Articles 26 (3) and 30 (1) of the Charter of Fundamental Rights and Freedoms), since it does not, in its current form, bind the sickness insurance system and thus fundamentally contravene the legitimate expectations of the applicants. The obligation to pay premiums in these cases remained unaffected, but no entitlement to the aid will be granted to the jobseeker. In addition, the Ombudsman pointed out that it is not entirely possible to deny the insurance principle of unemployment support, although it is doubtful that any social security scheme confers an advantage on certain social groups depending on whether the solidarity aspect is preferred or the principle of equivalence is preferred. While this regulation is reserved for the legislator, it cannot proceed in any way, but it must take account of the public values observed when setting preferences.
22. The Protector also advised the Chamber of Deputies that the contested provision would not stand in the test of rationality and pointed out that already in its Summary Report 2012, p. 19, it recommended that the Chamber of Deputies should remove the undesirable consequence of shortening the relevant period for the assessment of entitlement to unemployment benefit for persons receiving long-term sickness benefits, either by adding an additional replacement period of employment within the meaning of Section 41 (3) of the Employment Act or by other appropriate means (e.g. by introducing an institution for the removal of hardness, etc.).
Government communications
23. The Government, through its President, has stated, following a request for observations, that it will not exercise its right under Paragraph 69 (2) of the Law on the Constitutional Court to intervene. At the same time, however, the Prime Minister, "in the form of an amicus curiae brief," said the Prime Minister that, although the government considers that the contested provision of the law, or the length of the relevant period, is constitutional, the government intends to accentuate the principles of solidarity and accountability to an increased degree. He therefore asked the Minister for Labour and Social Affairs "to incorporate into the forthcoming amendment to the Employment Act (deadline for submission to the Government of July 2014) the legislation contained in the last parliamentary term rejected by the House of Press No. 911 ', which adds to the replacement periods of insurance and temporary incapacity for work, and thus addresses the situation which is the reason for the submission of the proposal under this procedure.
Expression of the Ministry of Labour and Social Affairs
24. In its observations sent to the Minister for Labour and Social Affairs, the Ministry proposed to reject the applicant's submission. At the beginning, it cited the wording of the contested provision and referred to the explanatory memorandum to draft Act No. 367 / 2011 Coll., which stated that the amendment "will bring the regulation of the applicable period closer to the usual arrangements in other European countries', arguing that the examples of Slovakia, Slovenia, Poland and Latvia would be used. According to the explanatory memorandum, the main objective of the proposed adjustment was to" motivate jobseekers to increase their own activity in finding and maintaining employment. "
25. The comments were further addressed by the Ministry's negative opinion of 2013 on the appellant mentioned (see paragraph 10 of the finding) to the parliamentary bill on the amendment of the Employment Act. In particular, the Ministry stated that, in its view, it would lead to an unequal approach in assessing entitlement to unemployment benefit, as a job seeker registered by the employment office who would be ill within a period of 7 days following the end of the employment relationship would have a temporary incapacity period as a replacement period, a job seeker registered by the employment office who would have been ill after that period, but not. In its 2013 opinion, the Ministry also stated that the non-recognition of unemployment benefit does not lead to a threat to the individual or to his household to social exclusion, because if he "finds himself in material distress, he (he) receives benefits of assistance in material distress or of state social assistance."
26. The Ministry further stated that it did not share the appellant's view that the contested provision was contrary to the constitutional order, in particular for the following reasons. The Ministry continues to consider, in accordance with the then legislator, which established the contested provision in the legal order, that "the purpose of shortening the relevant period is to motivate jobseekers to increase their own activity in finding and maintaining employment '. It considers the extension of the relevant period to be a non-systemic solution, since this change would only be relevant to the selected segment of the beneficiaries of the Employment Act, namely those jobseekers who would become temporarily incompetent after the termination of the employment relationship or service.
27. Finally, in the context of its argument, the Ministry has testified that there will be a state of inequality in obtaining entitlement to unemployment benefit as a result of the contested provision, but subject to the condition that this applies only to cases where temporary incapacity occurs during the period of employment.
28. Despite the express call by the original Judge-Rapporteur, the Ministry did not comment on the information communicated by the Prime Minister on the intention of preparing the government amendment to the Employment Act (see paragraph 23).
Statement by the Czech Statistical Office
29. In the course of the proceedings, the Constitutional Court concluded that, in view of the subject matter of the proceedings, it is desirable to obtain at least the framework statistics on the percentage of fixed-term employment in the Czech Republic on the total number of working conditions in the Czech Republic. The original Judge-Rapporteur therefore contacted the Czech Statistical Office on the basis of § 48 (2) and § 49 (1) of the Law on the Constitutional Court with a request for synergies. The Czech Statistical Office has informed the Constitutional Court that it does not record working conditions in the Czech Republic, nor does it have data from the registers of other state bodies concerning the division of employment rates into fixed and indefinite terms. However, the Czech Statistical Office provided the Constitutional Court with estimated data on the economic status of the entities that are acquired via the domestic consulting network in a sample of respondents through the "Labour Force Selection Survey 'calculated for the whole population.
Amendment of the Judge-Rapporteur
30. The Judge-Rapporteur in the present case was originally appointed by Judge Radovan Suchánek in accordance with the current schedule of work. After his motion was not accepted at the plenary meeting in private on 5 November 2014, the President of the Constitutional Court, Pavel Rychetský, appointed a new Judge-Rapporteur under Paragraph 55 of the Law on the Constitutional Court.
Incriminated provision of the Employment Act
31. Paragraph 41 (1) of the Employment Act is the subject of an assessment of compliance with the constitutional order, which reads as follows:
"(1) The relevant period for the assessment of unemployment benefit entitlements and retraining aid shall be the last two years before the entry into the employment register. ';
Presumption of review
32. The formal impeccable proposal was submitted by the Regional Court in Hradec Králové pursuant to Article 95 (2) of the Constitution and Article 64 (3) of the Law on the Constitutional Court. The Constitutional Court shall have jurisdiction to consider the application and shall be admissible.
33. The Constitutional Court notes that, according to the settled case-law of the Constitutional Court, it is not possible, in principle, to oppose the amendment, since such legislation does not have a generally separate legal existence; It is obtained only as part of the legislation amended [cf. Resolution sp. zn.
34. However, this does not mean that a proposal against an amendment to the law or part of it (as is the case in the present case) could not be subject to a substantive review at all by the Constitutional Court. The exception allowing such a review is the verification of the constitutionality of the procedure for adopting amending legislation [cf., for example, the finding of sp. zn.
35. That is why the Constitutional Court accentuated in verifying the constitutionality of the procedure for the adoption and competence of the institution which issued the contested provision, as well as Law No 367 / 2011 Coll. as the law which substantially amended the wording and implicit the material content of the contested provision for the legal assessment of the case, in the context of monitoring the coherence of the overall legislation of the legal institute concerned.
Conditions for the applicant's active legitimacy
36. Article 95 (2) The Constitution, in conjunction with Article 64 (3) of the Law on the Constitutional Court, shall be entitled to file a motion for the annulment of the law or its individual provisions to be applied in the context of its decision-making activities if they come to the conclusion that they are contrary to the constitutional order.
37. The basic conditions of active legitimacy were summarised by the Constitutional Court in resolution sp. zn. Before the Constitutional Court makes a substantive assessment of the application pursuant to Article 87 (1) (a) of the Constitution, it is required to examine whether it fulfils all the legal requirements required and whether the conditions for its hearing laid down by Law 182 / 1993 Coll., on the Constitutional Court, as amended, are at all laid down in the Law on the Constitutional Court. Under Article 64 (3) of the Law on the Constitutional Court, an application for annulment of the law or its individual provisions is also entitled to be filed by the court in connection with its decision-making activities under Article 95 (2) of the Constitution. Article 95 (2) The Constitution states that if the court concludes that the law to be applied in the resolution of the case is contrary to the constitutional order, it shall bring the matter before the Constitutional Court. 17. The Constitutional Court must first examine whether the condition laid down in Article 95 (2) of the Constitution has been fulfilled, i.e. whether the appellant's alleged contradiction with the constitutional order relates to the law to be applied in the resolution of a case initiated before the Regional Court in Hradec Králové, as it would have concluded that that condition would not have been fulfilled, the appellant would not have been actively justified or the application would have been made, by someone manifestly unjustified, as is the case of Article 43 (1) (c) of the Law on the Constitutional Court. 18. Within the meaning of the conclusions of the Resolution of the Constitutional Court sp. zn. Pl. ÚS 39 / 2000 of 23 October 2000 [Resolution sp. zn. Pl. ÚS 39 / 2000 of 23 October 2000 (U 39 / 20 SbNU 353), available in http: / / nalus.ujud.cz], the condition of the court's design authorisation, as set out in Article 95 (2) of the Constitution, is that the requirement of the annulment of the law should be directed against the "which is to be used in the resolution of the case ', if the law or its individual provisions, the application of which is to be immediate...', or its essential application is necessary, and not only a hypothetical use, or other broader context... '[cf. It follows from the purpose and purpose (specific) of checking the constitutionality of legal standards that the law' to be used in the resolution of the case 'is only the one (or its provisions) which obstructs the achievement of the desired (constitutional) outcome; If it had not then been removed, the outcome before it would have been different.'
38. The Constitutional Court also dealt with the principles of active legitimacy in the case of the Court's proposal, for example in the resolution sp. zn. Pl. ÚS 34 / 11 of 3.4.2012, resolution sp. zn. Pl. ÚS 30 / 09 of 2.4.2013 or the finding of sp. zn.
39. As already mentioned in point 2 of the finding, the appellant submitted an application for annulment of the contested provision in the context of his decision-making activity, which confirmed the decision of the Labour Office of the Czech Republic - Regional Branch of Hradec Králové of 13 February 2012 against the decision of the Ministry of Labour and Social Affairs No 2012 / 16971-421 of 16 April 2012 concerning the non-recognition of unemployment aid. At the same time, this court's active legitimacy is given to file a motion for its annulment.
Description of the legislative procedure for adopting the contested provisions of the law
40. According to Article 68 (2) of Act No. 182 / 1993 Coll., as amended by Act No. 48 / 2002 Coll., the Constitutional Court, in the context of the procedure for the control of constitutional conformity of standards, examines the compliance of the contested provision (or the law of which that provision is part) with the constitutional order from three fundamental points of view. The first is the existence of the competent authority and the authority which issued the contested law, the second is compliance with the constitutional procedure for adopting the standard, and the third is the aspect of its own content, i.e. its compliance with the constitutional order. The last aspect is therefore a substantive review. This gives a logical sequence of review.
41. It was found from the Parliament's press and shorthand reports, as well as from the observations of the President of the Chamber of Deputies and the President of the Senate that the Government had submitted a bill to the Chamber of Deputies on 25 May 2011. The Chamber of Deputies approved the bill on 9 September 2011. Of the 143 Members present, 84 voted in favour, 58 legislators opposed. On 19 September 2011, the Chamber of Deputies submitted a draft Senate Act, which discussed it on 19 October 2011 and rejected it. Of the 58 senators present, 35 voted to be rejected, against which there were 18. The Chamber of Deputies renegotiated the bill on 3-6. 11. 2011 and maintained the approved text of the draft law. Of the 179 Members present, the original text of Bill 108 voted against 69. The law was delivered to the President of the Republic on 9 November 2011 and signed on 22 November 2011. The approved act was delivered for signature to the Prime Minister on 28 November 2011. The Act was published in the Collection of Laws on 6 December 2011 in the amount of No. 128 under No. 367 / 2011 Coll.
42. On the basis of the assessment of the above data, the Constitutional Court notes that Act No. 367 / 2011 Coll., amending the Employment Act as amended by the contested provision, was therefore adopted after a properly implemented legislative process, signed by the relevant constitutional authorities and published in the Collection of Laws, i.e. that the contested provision was adopted in a constitutional manner for the purposes of jurisdiction and competence.
Reference aspects for the assessment of the proposal
The Constitutional Court's case-law on social rights - a basic basis and a question of legitimate expectations
43. According to the Italian legal philosopher Norbert Bobbia, the recognition of human rights took place in three stages: first, (a) the right to freedom, i.e. rights that restrict the power of the state and leave individuals and groups of freedom from the state; (b) political rights which do not understand freedom only negatively as not intervening but as (public) autonomy were defended in the second stage; (c) social rights have finally been declared, which highlight the values of well-being and not just formal equality. According to Bobbia, these rights can be called freedoms through and with the help of the state (see Bobbio, N. L'età dei diritti. Torino: Einaudi, p. 26 et seq.). But even more widespread than Bobbiova is genealogy that mentions three generations of human rights, the first being civil and political rights, the second economic, social and cultural rights and the third so-called solidarity rights. In doing so, other ways of institutionalisation than traditional first generation rights are elected for second generation rights. The distinction between the rights of the first generation and the rights of the second generation was also affected by the Constitutional Court in several decisions, although the concept of the "generation of rights" was not explicitly addressed [cf. in the finding sp. zn. Pl. ÚS 35 / 95 of 10.7.1996 (N 64 / 5 SbNU 487; 206 / 1996 Coll.), the Constitutional Court then concluded that these rights "require further factors to be combined; does not act directly as the rights mentioned above... The whole of this Title, the fourth in its summary, is dependent on the economic and social level of the State and the associated standard of living '; Cf.
44. The dogma of the "second generation" rights was significantly contributed to the finding of sp. zn. This provision gives the legislator the power to lay down specific conditions for the implementation of social rights. Legal implementation must not be contrary to constitutional principles, in other words, the laws in question must not deny or annul constitutional social rights. In implementing the constitutional arrangements laid down in the Charter, the legislator must comply with 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. In the case of social rights, it can be concluded that their collective restriction is precisely that they are not directly enforceable under the Charter, unlike, for example, fundamental rights and freedoms. Their limitation lies precisely in the need for legal implementation, which is, however, also a condition for specific implementation of individual rights. 53. These facts relate to the specific character of social rights, which depend mainly on the economic situation of the State. The level of their provision reflects not only the economic and social development of the state, but also the relationship between the state and the citizen, based on mutual responsibility and recognition of the principle of solidarity. The extent to which the principle of responsibility and solidarity manifests itself in the rule of law of that State also determines the nature of that State (e.g. as a social state)... 54. Therefore, when implementing social rights, the State is required not only to recognise them, but also to have a specific activity that enables them to be implemented. The transactions provided under social rights come from the state budget and the responsibility for such transactions rests entirely with the State. If it is the State who is and will be bound by social fulfilment, then it must also be able to determine the specific conditions of such fulfilment... '. However, this "must not deny the very existence of a particular social law or, as a result, exclude its implementation. Within these limits, the legislator has a relatively wide opportunity to regulate the implementation of individual social rights, including the possibility of changing them. 56.... the specific nature of social rights in no way means that the legislator is not bound by them. The anchoring of their existence in the Charter means that a minimum standard of these social rights must be maintained in the course of legal regulation. Therefore, there must in no way be a de facto denial of which social law, since the principles laid down in the Charter must also be complied with. The degree of compliance with these rights must be assessed in each individual case by statutory regulation.'
45. in points 39 and 40 of the found sp. zn. The Constitutional Court stated that "in its findings, it is usually held in restraint towards the implementation of the social rights enshrined in the title of the fourth Charter, as it is aware that the scope of social rights (...) is limited by the possibilities of the state budget, supported by the results of the State's management. It is only within these possibilities that the limits given by the relevant Articles of the Charter governing social rights apply. The assessment of the question of the effectiveness and appropriateness of the rule of law in this field leaves the Constitutional Court to the legislature whose activities the Constitutional Court cannot interfere with except in cases of established inconstitutionality. It is a matter of political substance. The concept of social rights is that they do not have an unconditional nature and can only be sought within the limits of the laws in force (Article 41 of the Charter). This lack of direct enforceability is reflected in the need for their legal definition, which is also a condition for the specific implementation of individual social rights [see the findings of the Constitutional Court sp. v. Pl. ÚS 8 / 07 of 23.3.2010 (N 61 / 56 SbNU 653; 135 / 2010 Coll.), sp. zn. ÚS 2 / 08 of 23.4.2008 (N 73 / 49 SbNU 85; 166 / 2008 Coll.)]. Although Article 41 (1) The Charter allows the legislator to establish specific conditions for the implementation of social rights, their legal definition must not be contrary to constitutional principles, in other words, the laws governing them must not completely deny or annul constitutional guaranteed social rights. As in the case of fundamental rights and freedoms directly enforceable under the Charter, even in the case of social rights, the legislature must respect the rule laid down in Article 4 (4) of the Charter under which, when applying the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be investigated. '
46. The above can be summarised as having regard to the wording of Article 41 (1) The Charter is given more scope to review the constitutionality of the laws containing the regulation of social rights than the first generation [and also the rights contained in Titles III and V of the Charter - cf. the finding of sp. zn. Pl. ÚS 8 / 07 of 23.3.2010 (N 61 / 56 of the CollNU 653; 135 / 2010 Coll.)], and the anchoring of their existence in the Charter means (taking into account Article 4 (4) of the Charter) that a minimum standard (i.e. there is a certain lower limit to the restriction, essential content) of social law must be maintained in the legislation. Otherwise, the specific balance of the liberal and social aspect is laid down in principle by the parliamentary majority [Constitutional Court therefore in point 45 of the page Pl. ÚS 54 / 10 of 24 April 2012 (N 84 / 65 SbNU 121; 186 / 2012 Coll.) stated that "the provision of Article 41 (1) of the Charter, according to which the rights referred to in Article 26, Article 27 (4), Article 28 to 31, Article 32 (1) and (3), Article 33 and Article 35 of the Charter can only be invoked within the limits of the laws which those provisions are transposed by the legislator, the conviction that the regulation is a legitimate subject of political upholding (i.e. primarily in the hands of the legislature), and, to a limited extent, the constitutional guarantee of social rights may be regarded as a judicial question. '] Deciding on the scope of social rights is one of the major political issues that are primarily the subject of an election competition, and, in the end, elected representatives in the legislature decide on it. Indeed, social rights can be classified as so-called" intrinsically questionable or debatable concepts "whose deepest importance is led across society by a stormy public debate and political debate. Therefore, in their case, the Constitutional Court must be more restrained from the democratic will of the legislator, which should reflect the current will of society. The limits of this respect are laid down in Article 4 (4) of the Charter first. In point 81 of the decision sp. zn. Pl. ÚS 8 / 07 of 23.3.2010 (N 61 / 56 of the SbNU 653; 135 / 2010 Coll.), the Constitutional Court generalized its case-law on social rights to three points:" According to the first of them, the scope for reviewing the constitutionality of laws containing the regulation of social rights is narrower than that of the fundamental rights under Title II, the third and fifth of the Charter, the space defined by the provisions of Articles 41 (1) and 4 (4) of the Charter. The second one is the prohibition (exclusion) of libido in their adaptation (Articles 1 and 3 (1) of the Charter) and the third one is the necessity of a statutory regulation of social rights (Article 41 (1) of the Charter).'
47. In accordance with the case-law of the Federal Constitutional Court, which constitutes an important source of inspiration in the light of its doctrine, human dignity is of fundamental importance for establishing the minimum standard of individual fundamental rights (Article 1 (1) of the Basic Law, or Article 1 of the Charter and also the preamble of the Constitution). From the value of human dignity, the Federal Constitutional Court imposes a constitutional right to a performance consisting of guaranteeing the human dignity of an existential minimum, which includes "both the physical existence of man, namely the nutrition, clothing, household facilities, shelter, heating, hygiene and health, as well as the provision of the possibility of establishing an interpersonal relationship and the minimum degree of participation in social, cultural and political life, since a person as a person necessarily exists in social ties' [cf. paragraph 135 of the judgment 1 BvL 1, 3, 4 / 09 - Harz IV, a different opinion of Judge Jan Musil to the finding of a Member State, or public authority, is referred to as a non-transitory of the interpretation of the law of the fundamental right of the claim, i.e., in the case of social rights, in which he dominates a mandatory obligation by the State, or public authority, is referred to human dignity, is referred to as a non-law; In: E. Wagner, V. Šimělek, T. Langášek, I. Pospíšil a kol. Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer ČR, a. s. 2012, p. 17. In other words, to decide on the level of solidarity necessary for individuals to be able also to realistically implement their rights and freedoms is primarily a matter for the legislator, but his discretion is subject to certain limits resulting from the highest constitutional value, which is human dignity.] It is true that" persons who are able to obtain funds for their own living needs alone will not be burdened by the State with a tax liability in relation to a certain minimum part of the income the taxation of which could be unduly burdensome. In the extreme case, even their right to a decent life could be affected, and thus, in view of Article 30 (2) of the Charter, according to which everyone in material need has the right to such assistance as is necessary to ensure basic living needs, this intervention would still have to be compensated for in the context of social security '[point 33 of the decision sp. zn. Pl. ÚS 31 / 13 of 10.7.2014 (162 / 2014 Coll.)].
48. The Constitutional Court has already spoken in the past about the possibility of a legitimate expectation in the case of social rights. In point 68 of the judgment in Case C-2 / 08 Pl. As already discussed above, these rights are mainly dependent on the development of the economic and standard of living of the State. In relation to a state that falls into economic difficulties (see recently Russia, Argentina, or Mexico), everyone, albeit the most legitimate claim, becomes illusory, and everyone is damaged. This is also related to the question of once-granted entitlements, which cannot be regarded as static in the case of social rights. This is also demonstrated by the modern history of the Czech Republic, when left-wing governments had a tendency to multiply various social benefits, while right-wing governments tend to do the opposite. However, it must always be within the above mentioned limits of the Charter. "
49. However, it is also possible to imagine situations where the application of legitimate expectations in the area of social rights has its place. For example, according to the European Court of Human Rights (hereinafter referred to as "the ECHR '), the application of legitimate expectations under Article 1 of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms to social benefits is both contributory and non-contributory, provided that national law grants an individual the right to a social benefit (cf. point 51 of the Grand Chamber's Decision on Stec and Others against the United Kingdom, 6.7.2005, 65731 / 01 and 65900 / 01). According to the ECHR, if the amount of the social benefit is reduced or eliminated, this may constitute an intervention in the legitimate expectation of acquisition. However, it cannot be such an intervention unless an individual fulfils or ceases to fulfil the conditions of national law for granting a benefit. For example, the ECHR did not accept the existence of a legitimate expectation of the complainant in a situation where on 21 December 2000 the Swedish Parliament cancelled on 5 February 2001 the possibility of receiving unemployment benefit through participation and completion of work training for a period of six months, while the complainant began but did not complete the training. In this context, the ECHR noted that the complainant had to be aware of the amendment of the law already in winter 2000 (cf. Bladh v Sweden, 10.11.2009, No 46125 / 06). According to the ESLP, it is also important that, in a situation where a particular social benefit is altered for reasons of public interest, which may result in a reduction, a certain person is granted general social benefits, and it is not decisive that in certain circumstances it may not even reach them (cf. Brems, E. Direct Protection of Social Rights by the European Court of Human Rights). In: Daphne Barak-Erez and Aeyal M. Gross. Exploring Social Rights. Eds. Oxford: Hart, 2007, p. 155 et seq.).
50. According to the Constitutional Court, even if a legally foreseen insurance event occurs, the fulfilment of the other conditions of the applicants itself constitutes a legitimate expectation of receiving the relevant performance. Therefore, any change to the statutory conditions for the establishment and duration of this claim must take this into account [point 263 of the sp. zn. The Constitutional Court considered it problematic to establish a new reason for the exclusion from the registration of jobseekers as a result of the refusal of an offer to perform a public service, as "it acts simultaneously as a change in the conditions for the creation and duration of entitlement to unemployment benefit, since this entitlement can only be incurred by registered applicants (Section 39 of the Employment Act). The result is, in the first place, a fundamental restriction on the entitlement, which becomes a claim on the condition that a potential offer is accepted, within two months. This is undoubtedly a very fundamental change, which, depending on the age of the applicant who rejects the offer in question, can mean a reduction in the support period by 3, 6 or even 9 months, thereby having a major negative projection into his social situation. For this reason, therefore, doubts are raised by the fact that the legislator has in no way taken into account the legitimate expectations of the parties to this insurance in relation to the relevant period and has not laid down adequate transitional provisions which would create a longer timeframe for such changes' (point 264). However, the Constitutional Court did not consider the possible intensity of this intervention in terms of the principle of legal certainty or trust in law in the present finding, but asked a more general question whether this limitation could be accepted in the light of the content of the obligation itself.
Right to adequate physical unemployment insurance
51. The Charter lays down the right to obtain the funds for its living needs by works and the right of those who cannot exercise that right without their guilt to a substantial extent. For both social and economic reasons, it is necessary to minimise the economic damage and personal disruption that the loss of employment entails. However, it is equally important to provide the unemployed with positive initiatives to be reemployed as soon as possible. In general, the nature and purpose of the right to adequate material reinsurance in the event of an impossibility to exercise the right to work, implemented in this case through the unemployment support institute, is to reduce in the short term the loss of income that has passed due to a legally defined social event (i.e. loss of employment). After all, it is precisely the amount of the social benefit paid that is usually reflected in the amount of the income paid. The mechanism for implementing the law in question is thus that the State temporarily provides the unemployed with a certain amount of funding when fulfilling the legal conditions, since (objectively) the impossibility of implementing their constitutionally guaranteed right to obtain funds for their living needs by works has occurred. In so doing, those who do not fulfil the conditions for entitlement to such aid shall then be referred to assistance in material distress under Article 30 (2) of the Charter.
52. This right is mainly implemented by unemployment and retraining aid. The right in question is "only those who, without their guilt, cannot obtain the means for their living needs by working (and are not unfit for work...). These are therefore job-seekers who seek to find and do not cause loss of previous employment" (cf. Wintr, J. Comments on Article 26 of the Charter. In: E. Wagner, V. Šimělek, T. Langášek, I. Pospíšil a kol. Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer ČR, a. s. 2012, p. 586). To a large extent, the legislator decides what (already) is the appropriate material collateral, but the discrepancy is not absolute. According to the Comment (cf. ibid.) above, intervention in the minimum standard of this basic right could occur if "it could be established and demonstrated that the new legislation reduces the implementation of the constitutionally guaranteed standard of social benefits up to a practical obstacle to their implementation or even to their partial withdrawal" (see point 78 of the sp. zn.
53. Interpretation of material unemployment reinsurance pursuant to Article 26 (3) The Constitutional Court then expressed its views in paragraph 262 of the decision sp. zn. However, the legislation adopted by him must not give rise to a de facto denial of this social law (Case C-446 / 10, paragraphs 54 and 56). It must always be taken into account in its substance and meaning (Article 4 (4) of the Charter) '. At the same time, however, "entitlement to unemployment benefit is not constant and it cannot be excluded that the legislator will expand or restrict it in the future. Any changes may concern both the amount of aid and the duration of the support period or conditions under which the entitlement arises or will continue. However, it is always necessary to consider whether the legal scope of the rights, the purpose of which is material unemployment insurance, will continue to allow the actual application of the constitutional right in question. At the same time, it must be taken into account that the claim in question is conditional on the employment of the applicant, as amended by Act No. 382 / 2008 Coll., in conjunction with Section 11 of Act No. 155 / 1995 Coll., on pension insurance, as amended," (cf. Section 263 of the Act No. 1 / 12).
54. The Constitutional Court further notes that, while "the lawful exercise of the right to adequate material security in old age, incapacity for work and loss of livelihood (Article 30 (1) of the Charter), as well as the right to health care (Article 31 of the Charter), is, to this day, primarily implemented at the legal level by the compulsory social insurance scheme (pension, sickness and health insurance) '(Wintr, J. - requoted - see above, p. 629), the incriminated right to material unemployment benefits is provided by a compulsory contribution to the state employment policy. If the constitutional right to adequate physical security in old age, permanent or long-term incapacity for work and the loss of a provider is implemented by a pension scheme involving an old-age, disabled and survivor's (widow's, widower's and orphan's) pension scheme, as well as a sickness insurance scheme in cases of short-term incapacity for work, the legal implementation of the right to adequate physical security for those who cannot work without blame (according to the second Charter's Article 26 (3)) is a material unemployment benefit. The material collateral (both in accordance with Article 26 (3) and Article 30 (1) of the Charter) is a higher standard than the basic living conditions (Article 30 (2) of the Charter). However, it is not an insurance scheme (see, however, the classification of unemployment benefit as an insurance in the following section), which would be required directly by the Charter, as is the case for public insurance for free health care and medical supplies under Article 31 of the Charter.
55. Although the Constitutional Court has in the past stated nominally that, in the case of unemployment benefit, it is an insurance scheme (point 263 of the sp. zn. Pl. ÚS 1 / 12) and similar indications appear due to the systematic classification of the contribution to the state employment policy into "social security premiums" even in professional literature, it retains fundamental different characteristics compared to classical public insurance. First, it is part of the State Employment Policy (see Section 2 (1) (i) of the Employment Act, according to which "State Employment Policy... includes the granting of unemployment and retraining aid."] Unemployment aid is one of the types of "other services' implementing the right to employment (Section 10 of the Employment Act). At the same time, the Act sets out two conditions for its implementation, namely that a natural person (a) wants and can work and (b) the work is sought [similarly Article 20 of the European Social Security Code (published as a Communication of the Ministry of Foreign Affairs No 90 / 2001 Coll. s.) and Article 20 of the International Labour Organisation Convention No. 102 on the Minimum Standard of Social Security (published as a Communication of the Ministry of Foreign Affairs No. 461 / 1991 Coll.) provides that" a covered social event includes the cessation of earnings, as provided by national legislation, caused by the impossibility of obtaining suitable employment if the protected person is able to work and willing to work. "]. For persons who, for example, have been ill for a long period of time, it is assumed that the possibility of working with them is not given and therefore they are followed by other rules and their physical security is dealt with in another social subsystem.
56. Although unemployment support can undoubtedly be included in the wider concept of social protection, it cannot yet be identified with classic social security benefits and services (or with binding social insurance schemes). Unemployment aid is not introduced in the Czech Republic as part of social insurance: this material is - under the form of a state employment policy - part of labour law in its broader context. Employment legislation is then one of three major areas - apart from individual and collective labour law - covered by labour law (cf. Belina, M. et al. Labour law. Praha: C. H. Beck, 2014, p. 3 et seq.), virtually the entire national employment policy complex. This integration into labour law is in no way changed by the condition of obtaining one year of pension insurance under the title of employment [Paragraph 39 (1) (a) of the Employment Act], since this is merely a technical expression - indeed, in this law and the previous employment legislation, several times amended - of a requirement for one year of employment of a certain quality and scope within a defined period prior to the creation of unemployment. The social event addressed by the aid is the loss of income from gainful activity caused by the inability to obtain adequate employment for persons who can work. The minimum standard for unemployment benefit is not the provision of benefits throughout the period of unemployment (Article 24 of International Labour Organisation Convention 102 on Minimum Social Security Standard and Article 21 of the European Social Security Code); Therefore, other systems must maintain an "untouchable 'state of dignity (see paragraph 47) in the case of longer unemployment.
57. While unemployment insurance is generally referred to as one of the sectors of the Czech social security system, there are also opinions that the contribution to the state employment policy, with its character (rather than insurance), is close to tax (cf. Merry, J. and kol. a. Social security law. Praha: Linde, 2013, p. 40). This would have its consequences in that, in general, it is not possible to claim a specific consideration for the tax, whereas, for insurance, the remuneration in the event of an insurance event [however, as pointed out by the Constitutional Court in point 41 of the sp. zn. Pl. ÚS 29 / 08 of 21.4.2009 (N 89 / 53 of the SbNU 125; 181 / 2009 Coll.), although the tax constitutes such a contribution to the creation of a material basis for the provision of public goods, i.e. the tax is imposed as a unilateral obligation without the right of the payer to a particular consideration by the State, this non-equivalence of taxes is not absolute, since the contribution to the creation of a material basis for the provision of public goods may be met in this way by the interests of the payer]. Most often, unemployment benefit is referred to as a time-limited (i.e. short-term) social benefit (e.g. Veselý, J. - requoted - see above, p. 248). The difference between the State financing of social benefits and the financing through social insurance can then be "expressed by the citizen in the state system paying taxes to the State which go into the State Treasury and are then paid on the basis of the State (Parliament) approved budget of the citizen under the conditions laid down by law on social security benefits. On the contrary, in social insurance, a citizen is obliged to insure himself in the event of a future insurance event or a citizen is insured by someone else (employer, state)" (Tröster, P. et al. Social security law. Praha: C. H. Beck, 2013, p. 77 et seq.).
Own review
Applicable period - general considerations
58. In the petit of its submission, the appellant requested the annulment of the provisions of Paragraph 41 (1) of the Employment Act, as amended by Act No. 367 / 2011 Coll., since from 1 January 2012 there was a change in the length of the relevant period for assessing entitlement to unemployment benefit and aid for retraining (the new text reads as follows: "The period for assessing unemployment benefit claims and retraining aid is the last 2 years before the entry into the employment register.") Although the appellant considered the contested change to be a non-conceptual solution which did not respect the logical interdependence of the various provisions of social security law, the petit aimed not at all so, in his view, at the linked provision, but only at the provision establishing (or shortening) the period of the relevant period. This also substantially defines the possibility of the scope of the review by the Constitutional Court as well as the relevance of the other appellant's argument for the decision of the case. The Constitutional Court, bound by the petition, had first to examine the nature of the contested provision, since it is precisely its other considerations that may depend on it. In social security (insurance), institutions that follow "working life" before a social event occurs are used quite commonly and typically. It is natural if these systems serve to ensure a certain standard of living at a time when, without self-inflicted means of subsistence, the purpose and purpose of these systems is to replace the lost income. The classic instrument is the dependency of entitlement to benefits in the past gained in the period of insurance (minimum period of membership of the scheme) usually expressed in unemployment support schemes by the period of insurance or by the period of employment or by a certain amount of earnings in the precisely defined period prior to the occurrence of a social event. By its nature, the proposal seeks to review the length (extent) of the period during which employment is to be maintained (defined by the 12-month pension scheme), which is eligible for unemployment benefit. Although the definition of that period is different from that of other periods (and deadlines) which the Constitutional Court has already examined, it cannot be disregarded from the fundamental characteristics, namely that it is a certain time limit (observation period) before the occurrence of a social event which is relevant to the entitlement to benefit. The question asked by the Constitutional Court is therefore: Is the observation period, i.e. the period of two years prior to the creation of unemployment, unconstitutional for a defined number of employees (here temporary workers who spent two years in incapacity and then became unemployed)? Although, in the present case, it is not possible to apply without further ado all the supporting decision-making reasons of the Constitutional Court relating to the review of certain periods and deadlines in the sub-constitutional law, the Constitutional Court considers it appropriate to recall how it looks at the establishment of a specific timeframe in the law. In general, it should be stressed that the Constitutional Court has traditionally maintained a priori restraint on these issues.
59. Already found in sp. zn. Pl. ÚS 33 / 97 of 17.12.1997 (N 163 / 9 SbNU 399; 30 / 1998 Coll.) The Constitutional Court noted, on a general basis, that "the purpose of the legal institution of the time limit is to reduce entropy (uncertainty) in the exercise of rights or powers, the temporal limitation of the state of uncertainty in legal relations (...), to speed up the decision-making process with a view to realising the intended objectives. These reasons have led to the introduction of deadlines thousands of years ago." The scope of the constitutional review of the legal provisions setting out the time limits was then defined by the Constitutional Court in the decision of the sp. zn. The deadline itself cannot be unconstitutional. However, it may appear this way in the light of specific circumstances. '
60. The various situations of possible unconstitutionality of the deadline were then summarised by the Constitutional Court in the decision of the sp. zn. cf. also the finding of sp. zn. Pl. ÚS 17 / 09 of 1.12.2009 (N 250 / 55 SbNU 415; 9 / 2010 Coll.), according to which "prima facie period cannot, without any further, show signs of unconstitutionality 'and" the unconstitutionality of the deadline may only be established in a dialogue with the specific circumstances of the case under consideration'. In particular circumstances, or in the context of the contextual assessment of the constitutionality of the time limit in view of its previous case-law, the Constitutional Court indicated: 1. the inadequacy of the time limits in relation to it limited time limits for the exercise of the constitutionally guaranteed right (claim) or, where applicable, the defined period of limitation of subjective right [for example, the sp. zn. 2. Arguments of the legislator in setting the time limit (its anchoring or cancellation) [e.g. the finding of sp. zn. 3. The constitutionally unacceptable inequality of two groups of entities resulting from the abolition of a certain legal condition for the exercise of the right for its unconstitutionality, with this abolition for the group of entities concerned as a result of the expiry of the time limits, no longer opens up, without further possibility of the exercise of the right, [for example, the finding of sp. zn.
61. Finally, in paragraph 37 of the finding of sp. zn. Pl. ÚS 15 / 09 of 8.7.2010 (N 139 / 58 SbNU 141; 244 / 2010 Coll.), the Constitutional Court stated that "the period of prima facie action does not appear without further notice and cannot show signs of unconstitutionality; These can only be given, by the specific circumstances of the case under assessment, in other words, the assessment of the constitutionality of the time limit is an assessment of the context '[finding sp. zn. These specific circumstances are, according to the case law of the Constitutional Court, in particular the inadequacy of the time limit in relation to the timelimit of the time limit for the exercise of the constitutionally guaranteed right [finding sp. zn.
62. The Constitutional Court was often called on to examine the various "decisive periods': for example, in the sp. zn. The Constitutional Court stated that" the determination of the so-called "decisive period ', namely its beginning on 25 February 1948, is based on reasonable and objective reasons when the legislator was forced to clearly define a time limit for which, in principle, compensation cannot be established without any risk of further chain-link until the pre-Munich Republic or beyond." In point 176 of the decision sp. zn.
63. However, in the view of the Constitutional Court, the aspects of the context assessment of the constitutionality of the deadline (see paragraph 61) can also be extended to the length of the relevant period, which the legislature will determine as observatory for determining the minimum period of jurisdiction required for the social security system (the question of arbitrariness in determining it) or, more appropriately, to the length of the period of pension insurance in relation to the length of the period in question (the question of proportionality of the period). However, the legislator has a major discrepancy in the length of the relevant period it chooses, but it must not intervene in the right to adequate material collateral in such a way that it is effectively impossible to implement it or even to withdraw it (see paragraph 52). However, this could only happen if the ratio of the duration of the participation in pension insurance in relation to the length of the relevant period was established so high that it excluded a substantial part of the working population from the possibility of entitlement to the aid. However, this clearly cannot be the case in the present case and there is no need for further examination. The Constitutional Court points out in this context to the practice of other European countries, which implies that the Czech legislation does not deviate from acceptable legal solutions (the MISSOC system used to compare social protection systems within the European Union gives clear ideas of what the legislation looks like in Europe: the observation period of two years is about two thirds of the Member States of the European Union, there are also much stricter arrangements, such as Bulgaria on 1 July 2014 requires 9 months of insurance in the 15 months before unemployment, Latvia even in the last 12 months, but there are also Member States that have a longer observation period, usually three years, but there are now a minority - France, Hungary, Lithuania, Slovakia, Denmark, Spain, Estonia. It should be seen that the basic conditions for entitlement to unemployment benefit are usually still modified or fixed in some way).
64. The period of two years prior to the occurrence of a social event (i.e. loss of income from a gainful activity caused by the impossibility of obtaining adequate employment) represents the so-called decisive period for assessing entitlement to unemployment benefit and retraining aid. It is true that within the relevant period, the unemployment benefit applicant must accumulate a sufficient number of hours in employment (which is legally-technically expressed in terms of the period of participation in pension insurance) in order to obtain entitlement to the aid. The condition of one year of employment of a certain "quality '- which is expressed by that condition of one year of pension insurance obtained as a result of employment [cf. Section 39 (1) (a) of the Employment Act] - must be fulfilled within the defined period of observation prior to inclusion in the employment register; i.e. the condition of one year of employment was to be fulfilled by the aid applicant in the previous two years prior to inclusion in the register of jobseekers.
65. This condition of the so-called qualification period is common in social systems (developed countries) and is also foreseen by various international documents. For example, Article 23 of the European Social Security Code foresees the provision of a benefit "at least to those protected persons who have fulfilled a qualifying period which may be considered necessary to prevent abuse '(see, mutatis mutandis, Article 23 of International Labour Organisation Convention 102 on Minimum Social Security Standard). The purpose of establishing such a period lies, on the one hand, in preventing the abuse of unemployment aid, which (partly and temporarily) replaces income for those who have realised their right to obtain their living needs by working, but now they cannot do so objectively (without their guilt), on the other hand, in the (legislative-technical) definition of whether the complainant had at all income from work and, where appropriate, to what extent. In fact, a specific definition of the amount of unemployment benefit implies a definition of the period relevant to the determination of the applicant's income, which then depends on the amount of aid in respect of a system which binds the amount of benefit to the previously achieved income.
66. As can be seen from the above comparative perspective (see the MISSOC database: http: / / www.missoc.org /), the current Czech adjustment of the length of the relevant period (i.e. two years) is completely comparable to other European countries. If the ratio of the relevant period of insurance (or a similar criterion for fulfilling the condition of a given number of employment or other gainful activity needed to qualify for unemployment benefit) to the relevant period is similar in other countries (for example, in Germany, the unemployed person must be insured in 12 months in the last two years, in addition, there has been a similar shift to the shorter period of employment as in the Czech Republic). It is therefore acceptable to accept the argument from the explanatory memorandum to the amendment to the law that, by shortening the length of the period in question, there has been a certain approximation to legislation in other European countries. In view of the foreign arrangements, it is clear that the length of the relevant period is not (in general) manifestly disproportionate in relation to the condition of one year's participation in pension insurance (i.e. 12 months of employment). Thus, the new legislation certainly does not reduce the standard of providing unemployment benefits to the practical purpose of making it impossible to implement it, or even to withdraw it flat (this could only occur in a situation where the condition of participation in pension insurance would be set at almost the same length as the period in question).
67. The questions that the Constitutional Court will continue to have to deal with concern the legislature's possible indiscretions in establishing the relevant period (i.e. the question of legitimate expectations) and the possible constitutionally unacceptable inequalities between two groups of entities - fixed-term and indefinite employees.
Legal expectations - retrospective
68. As regards the argument that the contested provision denied the principle of legitimate expectations of the applicant for the provision of adequate material security, since he would have been in a different legal position prior to the application of Law No 367 / 2011 Coll., i.e. that the claimant, under the same conditions (employment) and in the same legal events (temporary incapacity and duration), was in a different legal position with effect from 1 January 2012, and in this respect it was therefore an unconstitutional provision, nor could the Constitutional Court have given any evidence to that effect.
69. The concept of legitimate expectations may be combined in the present case with an interest in property, which according to its content 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 governing the right of everyone to use his property peacefully [compare the finding of the Constitutional Court sp. zn. Pl. Pl. ÚS 31 / 09 of 9.1.2013 (N 5 / 68 of the SbNU 89; 42 / 2013 Coll.), the finding of 1.7.2010 sp. zn. Pl. Pl. ÚS 9 / 07 (N 132 / 58 of the SbNU 3; 242 / 2010 Coll.) and finally the finding of 15.5.2012 sp. Pl. ÚS 17 / 11 (N 102 / 65 SbNU 367; 220 / 2012 Coll.)]. According to the settled case law of the European Court of Human Rights, the concept of "property 'contained in that Article of the Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms must be interpreted as having an autonomous content which is not limited to the ownership of tangible property and does not depend on the formal qualification of national law (judgment of 22 June 2004 in Case No 31443 / 96 - Broniowski v Poland, § 129). It may therefore include both" existing assets' and assets, including claims, on the basis of which the complainant may claim to have at least "legitimate expectations' (ésperance légitime / legitimate expedition) to achieve effective use of property rights (see Gratzinger and Gratzinger v Czech Republic, 2002, or Zvolský and Zvolská v Czech Republic, 2001). The protection provided for in that Article is therefore not only a acquired property, i.e. existing property, but also a legitimate expectation of acquiring such property. The application of legitimate expectations is possible for social benefits, both contributory and non-contributory, but only if national law grants individuals the right to social benefits (see paragraph 49).
70. As the Constitutional Court stated in the finding in sp. zn. It is necessary to insist on such behaviour by the legislator, as this guarantees the stability of the sphere of free action. The laws define the basic structure under which free activities are carried out. If there are uncertain limits to legal requirements, i.e. legitimate expectations based on law are not respected, freedom is also uncertain. Therefore, the protection of legitimate expectations is an integral part of the rule of law (cf. Adequate finding of 26.4.2005 sp. zn. IV. ÚS 167 / 05, Reports of decisions, Volume 37, Found No 94,...). Looking at legitimate expectations is an indispensable dimension of legality (cf. Rawls, J. Theory of Justice, Prague: Victoria Publishing, 1995, p. 145). Of course, the order to respect the legitimate expectations of existing legislation does not provide for a ban on change of legislation. It is only a matter of taking account of these expectations when deciding on the choice of the legislature to implement the change and not ignoring that the addressees of the standards of their behaviour (and the choice between the different alternatives) have for a long time adapted to the requirements of different content. '
71. The Constitutional Court first dealt with a change in the length of the period of three to two years. This change, in the view of the Constitutional Court, is generally acceptable and therefore cannot in any way jeopardise the legitimate expectations of the applicants. Entitlement to unemployment benefit depends, in so far as possible, on the legislation in force and arises only by fulfilling all the legal conditions. Individual employees must therefore be aware that in the future the legislator may change the conditions, which means that they cannot rely on the continued maintenance of the existing legislation. In fact, the Institute of Legal Expectations does not protect the irrevocability of the relevant period for the future, since the determination of its scope (even in this case) is at least dependent on the state's economic situation and also partly political considerations (priorities), which can then be fully legitimate in the arrangements for the organisation of unemployment aid. If State aid (imported from one of the general constitutional principles) was part of the constitutional order of the general imperative of non-changeability (non-aggravating), the line of argument of the present case-law on certain "political 'nature of social rights, the inescapable limit of which is only obligations arising from the constitutional principle of human dignity (see paragraph 47) would be challenged.
72. In addition, the Constitutional Court was particularly concerned with the possibility of changing the length of the relevant period less than two months before the new legislation was effective. Although the length of the relevant period changed two months before the end of 2011 (i.e. 6.11.), the law was in force since December 2011 and the effectiveness of the new provision was already from 1.1.2012 onwards, it is not possible to establish without further quantification the unpredictability of the change, since it is not at all a standard that could possibly be adapted to its behaviour (see sp. zl. ÚS 38 / 04 and contrario). Both in the case of long-term illness and in the case of subsequent recovery and the ability to apply for employment, these are to a large extent unforeseen social events with which they cannot be calculated (the finding in point Pl. ÚS 38 / 04 was applicable to those addressees of the legal standards who carried out their free activities and adapted their behaviour to the requirements of those standards). In addition, unemployment support itself is designed to temporarily mitigate the impact of unemployment on the financial situation of those persons who have acquired funds for their living needs, not those who have been unable to do so in the long term (e.g. because they have been ill in the long term). The construction of the relevant period therefore assumes that the disease will not take too long, which the Constitutional Court considers to be possible and reasonable (quite logical, although there may certainly be other legitimate alternatives - see the case of Canada below), since it does not make any sense in the case of these persons to replace the income lost (because no work income has escaped), and, moreover, there would be no clear methodology for its quantification. In fact, at the time of the change in legislation, the applicant could not have assumed with certainty that he would be able to work again in a few months, and that he might "help" with unemployment support in finding a new job. Therefore, it is not appropriate to use the principle of legitimate expectations in unforeseen circumstances of this type. On the contrary, both sickness and unemployment are quite unexpected social events (for example, compared to another event that is likely to occur - old age), and therefore, any expectations for future unemployment support with a view to working 12 months in the relevant period cannot be applied. Short-term social events of this type cannot be covered by the concept of legitimate expectations also because the claimant could not have expected to become unemployed two months after the reregulation, since there were equivalent alternatives, namely that he could have gone into disability (higher degree of disability) or could have found work; all of these possibilities were apparently open to him.
73. The case under consideration must then also be distinguished from that dealt with in the sp. zn. The Charter, by allowing, after two months, and in some cases without any objectively verifiable reasons, the exclusion of the candidate for employment from the register of those candidates with the described consequences of the loss of adequate material collateral ', is merely a legislative and technical design of the relevant period, which is in no way beyond European standards. This was a perfectly acceptable change in the legal conditions for obtaining unemployment benefit, which, contrary to the case dealt with in the sp. zn. Pl. ÚS 1 / 12, did not require the applicants to take on a constitutionally problematic obligation to act (the worker had to accept the offer to carry out the public service, otherwise the reason for its exclusion from the employment register would have been updated). Moreover, as discussed above (paragraph 72), no one standing in the same position as the plaintiff could have expected, given the randomness of his situation, that in the future he would certainly meet the requirements foreseen by law.
74. That approach is, in the view of the Constitutional Court, in accordance with the above-mentioned ECHR case law (paragraph 49), the Constitutional Court considers it essential that the claimant remains open to general social benefits. At the very conclusion, the Constitutional Court notes that these conclusions are particularly relevant in the field of social policy, which - as the Federal Constitutional Court pointed out - "is sensitive to the restriction of freedom (Gestaltungsfreiheit) of the legislator; the ever-changing social policy situation requires that legislators be given as much freedom as possible (cf. BVerfGE 39, 302 [315]). The Federal Constitutional Court must therefore continue to ensure that its case-law does not unduly impede the legislator from adapting the right to change social and economic circumstances (cf. BVerfGE 69, 272 [304]). This is particularly true of unemployment insurance. Its functionality depends on the development of the economy and the labour market situation, but also on understanding and subjective behaviour of the insured. When changing such conditions, the legislator must be able to react quickly. In addition, the legislator's broad creative freedom is necessary because, unlike pension insurance, the benefits from unemployment insurance are not proportional to the contributions to it (cf. BVerfGE 51, 115 [124]; 72.9 [20]). Therefore, for the assessment of the performance provided, there is no regulatory framework for the equivalence of the performance, so that the legislator must have other options for the necessary compensation '[1 BvL 29, 30, 33, 34, 36 / 83 (order of 18.11.1986), a different view of Judge Katzenstein].
Discrimination
75. The ideal of equality between human beings is a constitutional part of the material concept of the right of modernity, in which unequal political orders cannot pass the legitimacy test. The equal dignity of human beings is also an argument for equality in constitutionally guaranteed rights. It implies a fundamental right to a share of freedom that is equal to that of all other human beings.
76. The Charter of Fundamental Rights does not prohibit any distinction, but only discrimination for certain reasons or for certain reasons is inadmissible. Therefore, the prohibition of discrimination does not mean "the prohibition of any exclusion, but only one that is morally defective and reduces the dignity of man" (cf. In: E. Wagner, V. Šimělek, T. Langášek, I. Pospíšil a kol. Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer ČR, a. s. 2012, p. 101). In paragraph 55 of the finding sp. zn. Pl. ÚS 29 / 08 of 21.4.2009 (N 89 / 53 SbNU 125; 181 / 2009 Coll.), the Constitutional Court cited the view of the judge ESLP Zupančič, according to which "all decision-making processes within all three branches of state authority concern the creation and execution of various decisions in the light of different situations. In this sense, to discriminate '[i.e. to perceive and to state differences] is not a bad thing, unless a specific finding of differences applies, in the words of constitutional law, to the so-called, problematic category', namely one of the criteria set out in the exhaustive list of Article 14 of the European Convention on Human Rights. These troublesome categories are nothing but an exception to the general rule that allows any distinguishing decision-making process to be used for non-problematic categories. Therefore, the prohibition of discrimination with regard to certain specific differences is an exception, not a rule. However, this does not mean that discrimination is strictly prohibited for problematic categories. In fact, discrimination within those categories is permitted when the criteria of equal protection, proportionality and rationality are applied" (see Judge Boštjan Zupančič's dissent in the Burden case against the United Kingdom of 29.4.2008, summary of the judgments of the European Court of Human Rights 6 / 2008, p. 319).
77. In points 50-52 of resolution sp. zn. I. ÚS 3271 / 13 of 6.2.2014 (available at http: / / nalus.ujud.cz) The Constitutional Court has analysed in more detail that "Article 3 (1) of the Charter... applies only if the reason for the different treatment of sex, race, colour of the skin, language, faith and religion, political or other thinking, national or social origin, membership of a national or ethnic minority, property, family or other status.... [J] The position must... be similar to the demonstratively listed categories. It must, therefore, relate to some personal property that is generally impossible to influence (e.g. gender, race), or must be grounds based on personal choices reflecting the personality characteristics of each of us, such as religion or political views.... It can be added that the European Court of Human Rights, by analogy, interprets Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which contains a similar demonstrative list of discriminatory reasons (see, for example, the decision of Peter against the Czech Republic of 4 May 2010 No 21990 / 08). However, this does not mean that the legislator can make any distinction in these situations. The equality protected by Article 1 of the Charter does not have such a restriction and affects all the distinguishing reasons [compare, for example, the finding of sp. zn. Pl. ÚS 39 / 01 of 30.10.2002 (N 135 / 28 of SbNU 153; 499 / 2002 Coll.) or the resolution of sp. zn. I. ÚS 2006 / 12 of 15.1.2014, paragraph 17]. However, it is settled case law of the Constitutional Court that this equality under Article 1 The Charter may be infringed only where the inequality is extreme, or where there is no purpose or meaning missing, and therefore it is a libel [see the find sp. zn.
78. The constitutional basis of its decision-making work on the principle of equality had to be drawn up by the Constitutional Court in relation to the nature of the legislation under review. The appellant pointed out in its submission that the same facts, which could not be objectively influenced (such as temporary incapacity for work and duration) would be reflected differently, in a fundamental way, into the right to physical security in the form of unemployment support for two basic forms of employment. In other words, in the appellant's view, there is unjustifiable discrimination between fixed-term employment conditions and indeterminate employment conditions (after all, the claimant argued in this way in the application against the administrative decision). Therefore, the objected discriminatory reason is whether the employment relationship was fixed or indefinite.
79. If the Constitutional Court has based itself on the nature of the rule of law under review, it considers that the present case is not a direct case of discrimination, according to which the person concerned would be treated differently for a reason which is one of the prohibited grounds for exclusion. On the contrary, the construction of a different legal standard is based on a completely neutral criterion. The Constitutional Court therefore had to examine the legal standard in question from the point of view of indirect (or intermediate or hidden) discrimination, the constitutional basis of which lies in Article 3 (1) of the Charter. The precondition for indirect discrimination is, according to constitutional law, that certain general legislation, which does not formally contain any prohibited discriminatory classification, causes discrimination in its application (Bobek, M., Boučková, P., Kühn, Z. Equality and discrimination. Praha: C. H. Beck, 2007, p. 52). The subject of indirect discrimination is therefore the negative (or unequal) impact of general rules which are formally in order in general and apply "straight." The reason for this is the faulty design of a standard where, on the basis of a seemingly neutral criterion, a group of people is at a disadvantage compared to others because of a prohibited reason (e.g. race, ethnic origin, sex, sexual orientation, age, disability, religion or belief, etc.), and a group of people is not justified in substance and the means to achieve it are proportionate and necessary (cf. ibid. ibid.). In other words, in the case of indirect discrimination, the criterion of distinction was chosen as a criterion of discrimination at first sight as neutral, but which is unduly affecting the protected group (see Bobek, M. Prohibition of discrimination. In: E. Wagner, V. Šimělek, T. Langášek, I. Pospíšil a kol. Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer ČR, a. s. 2012, p. 109).
80. The Constitutional Court notes that, in line with legal dogmatism, for example, the anti-discrimination law [Act No. 198 / 2009 Coll., on equal treatment and on legal means of protection against discrimination and on the amendment of certain laws (anti-discrimination law), as amended, defines in § 3 (1) indirect discrimination as "such conduct or omission, where, on the basis of a seemingly neutral provision, criteria or practice, a person is at a disadvantage to others for any of the reasons set out in § 2 (3) [this includes reasons such as race, ethnic origin, nationality, gender, sexual orientation, age, disability, religion, belief or belief]. Indirect discrimination is not a matter where this provision, criterion or practice is objectively justified by a legitimate objective and the means of achieving it are proportionate and necessary. '
81. However, in the present case, the criterion chosen does not have a discriminatory outcome for a certain constitutionally protected group, as defined in Article 3 (1) of the Charter. The appellant did not put forward any argument that the incriminated standard would unduly affect a protected group, and even the Constitutional Court had no reason to believe that this might be the case in the present case. In the present case, the contested discriminatory plea cannot be placed under the concept of "other status' within the meaning of Article 3 (1) of the Charter.
82. If, in the event of indirect discrimination, a neutral criterion is necessary for the recognition of a protected group of which the claimant would be a member, it is not only essential that the fixedterm employees do not form such a group (the protected group is defined on the basis of ethnic, gender, sexual or other characteristics), but the case of the employee whose case was the reason (for) for bringing an application to the general court is to a large extent individualised, as it results from the conjunction of random factors such as the long-term health problems causing an incapacity of more than one year and the November amendment of the provision of the law in question, which occurred in a situation where the claimant was still in work incapacity. In the view of the Constitutional Court, therefore, under the unique circumstances this cannot be a constitutionally prohibited indirect discrimination, since it already follows from its constitutionally dogmatic definition that it does not seek the individualised protection of a particular right of a person (cf. Fredman, S. Discrimination Law. Oxford: Oxford University Press, 2011, p. 183). In its case, it is not a matter of individual fate, but of "structural 'inequalities and their effects. It must therefore be a discriminatory treatment (in addition to the so-called protected, certain attributes therefore defined) of the group, not just the different treatment of individuals. In fact, the assessment of indirect discrimination detaches itself from specific complainants, and it would therefore be unacceptable for the Constitutional Court to decide on the constitutional conformity of the contested legal standard with regard to the individual case of the applicant.
83. Moreover, as is apparent from the appellant's submissions, it was not, in the case at hand, merely the fact that he had a fixed-term employment relationship in contrast to an indefinite employment relationship, but a fixed-term employment relationship in an incapacity for more than one year. Therefore, it is not a problem to close a fixed-term employment relationship itself, but there must be other circumstances that are highly unpredictable and random. The Constitutional Court therefore considers that the discrimination against fixedterm employment rates as opposed to the indefinite employment rates is misleading, since in the case concerning the appellant's submission, a combination of several factors occurred (i.e. the claimant became competent during the duration of that ratio, his employment had ended during the period of temporary incapacity and was later found to be competent). However, the provision in question contains a neutral rule, a two-year period which is the same for all groups of employees, which may have a different impact on certain specific, but unpredictable situations, because the complexity of human lives is very difficult to fit into these legal conditions. Although an indefinite employment relationship may provide a higher degree of protection from the point of view of termination of an employment relationship (employees cannot be fired during an incapacity to work, or if they have been given notice before the incapacity to work, the employment relationship continues for a certain period of time after the termination), one can imagine a situation where even the existence of an indefinite employment relationship combined with a notice of termination and an incapacity to work does not give the jobseekers entitlement to unemployment benefit.
84. The conclusions can then also be drawn on the Ombudsman's argument "Selected case-law of the Ombudsman's inquiry '(paragraph 20), from which the existence of a certain group, let alone a protected group, the existence of which should be the ground for the Constitutional Court to declare the unconstitutional nature of the provision in question. The argument that the cases cannot be dealt with in a material emergency system cannot be accepted (see paragraphs 55- 56). The constitutional order is an interconnected structural entity which aims to protect the highest value of human dignity and human dignity, and the choice of a particular system to maintain the state of dignity is already a matter for the legislator. Unemployment aid referred to in Article 26 (3) The Charter must only be guaranteed for persons who have just lost income from a gainful activity because they cannot obtain adequate employment, i.e. those who have the opportunity to work and are willing to work, whereas those who have been ill for a long time, on the other hand, are essentially based on the absence of this possibility, and therefore it is followed by other rules and their situation is then addressed in a different kind of social benefit. This can also apply to situations where certain persons regain their ability to work, but, as a result of a long-term illness, they no longer fulfil the statutory conditions (or a certain period of participation in pension insurance within the relevant period) because their incapacity for work lasted more than one year.
85. In the case of social rights, in general, the Constitutional Court should not attempt to replace a rational view of the legislator with its own reasoning, however it may also (or perhaps even more) be rational. It is true that "a number of specific rational solutions that are considered in one particular case to address the distribution of public goods can be relatively high, which is due to the very resulting nature of positive liabilities. However, the courts provide only protection for subjective rights, the responsibility for choosing the distribution of public goods, on the contrary, belongs to the legislative power" (cf. Boučková, P. Equality and social rights. Praha: Auditorium, 2009, p. 37). These conclusions may also relate, for example, to the argument of the appellant of the parties to the conceptual and logical consistency of the provision with other provisions of the law (paragraph 6) and to the argument of the Ombudsman of the parties to the differences between unemployment and pension insurance aid (paragraph 20). Moreover, the Constitutional Court notes that the length of the support period in sickness insurance has been established historically rather generously; However, this does not mean that it would be necessary to automatically compare this period to periods of belonging to other systems (for example, any period of unemployment, etc.). The contested standard only regulates the length of the period in question, not adjusting the replacement periods which the appellant - as can be seen from its submission - was also a thorn in the eye (paragraph 9). Article 41 (3) and (2) of the Employment Act defines replacement periods of employment. In a way, the length of the relevant period was not itself a problem for the appellant, but rather the absence of a temporary incapacity that arose at the time of the gainful activity or during the period of detention for the purposes of unemployment support (or that the period would be extended by the time when the employee was unable to work, for example, as provided for in Canada, for reasons which are independent of his will). The Constitutional Court points out the legislation in Slovakia where there is unemployment insurance (Act No. 461 / 2003 Coll., on Social Posting), whereas in Paragraph 104 (2) of the Act cited, the insured person who was entered in the register of unemployed persons after the employment of a fixedterm worker has ceased to work, shall be entitled to an unemployment benefit if he has been insured for at least two years in the last four years before being entered in the register for the employment of a fixed term employee. This is an exception to the rule under which a claim otherwise arises if it has been insured for two years in the last three years. For fixed-term work conditions, the relevant period as lex specialis is extended. However, it is already up to the legislator to accept such an arrangement for fixedterm workers or temporarily incapacitated workers. The Constitutional Court has not overlooked the fact that the Chamber of Deputies is discussing, as a press release 296 / 0, an amendment to the Employment Act, with the Government proposing that cases of long-term incapacity to work under defined conditions be considered as a replacement for unemployment support purposes. However, this regulation is to apply only to the unemployment aid procedure initiated after the effectiveness of this amendment.
86. Summary, normative content of the constitutional standard Article 26 (3) The Charter is further restricted by Article 41 (1) of the Charter because it can only be invoked as rights within the limits of the laws implementing those provisions. The formally guaranteed right under Article 26 (3) of the Charter may be implemented by means of a "implementing 'law which specifies the specific content of this basic law. The legislature must therefore, from a point of view, ensure that such a law is without prejudice to the substance and meaning of the fundamental law in question (Article 4 (4) of the Charter), the same applies to public authorities which apply it and interpret it. From this point of view, however, the question of whether the granting of unemployment benefit belongs to a jobseeker in a situation where the length of the relevant period has been changed from three to two years does not appear to be decisive, as it is up to the legislator to decide on the conditions under which physical security in such cases will be provided, namely whether it will in any way" favour "the position of those who have worked in a larger proportion within the relevant period than others. The legislation under review does not contradict in any way the purpose of the constitutional guarantee of promoting physical security for those who, without their guilt, cannot obtain funds for their living needs by work.
87. However, as an obiter dictum, the Constitutional Court notes on the appellant's proposal that some of the problems of the type raised by the appellant can be addressed by extending the transitional provisions of the amendment of the law. The contested provision is prima facie neutral: it provides that the period for assessing whether the condition of one year of pension insurance has been fulfilled will be two years before the social event occurs. It is not possible to address the adverse effects on a highly individualised matter underlying the application to the Constitutional Court (see paragraph 82). The Constitutional Court considers that it would have been possible, from the point of view of a rational and socially sensitive legislator, to consider establishing, for example, a one-year transitional period in which claims arising in this first year of application of the new legislation would alternatively have been examined for the fulfilment of the period of employment under the former legislation. However, this "lack" cannot be regarded as unconstitutional (see paragraphs 72- 74) - rather it is the political will of the parliamentary majority, or perhaps even (not) the ability to conceive of the consequences of the adjustment.
88. The Constitutional Court notes that no grounds were found to comply with the application for annulment in the heading of the provision cited by the contested law and therefore the proposal was rejected.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 170 / 2015 Coll., on the application for annulment of § 41 paragraph 1 of Act No. 435 / 2004 Coll., on Employment, as amended by Act No. 367 / 2011 Coll. |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 03.07.2015 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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