The Constitutional Court found No. 199 / 2003 Coll.
The Constitutional Court found of 11 June 2003 on the application for annulment of the provisions of Section 7 of Act No. 2 / 1991 Coll., on collective bargaining
Valid
The Constitutional Tribunal found
Text versions:
02.07.2003
199
FIND
The Constitutional Court
On behalf of the Czech Republic
The Constitutional Court decided on 11 June 2003 in plenary on the proposal of the Group of Members of the Chamber of Deputies of the Parliament of the Czech Republic to repeal the provisions of Section 7 of Act No. 2 / 1991 Coll., on collective bargaining,
as follows:
Paragraph 7 of Act No. 2 / 1991 Coll., on collective bargaining, is repealed on 31 March 2004.
Reasons
On 8 November 2002 the Constitutional Court received a proposal from a group of 52 Members of the Chamber of Deputies of the Parliament of the Czech Republic to repeal the provisions of Section 7 of Act No. 2 / 1991 Coll., on collective bargaining.
The appellant shall first recap the content of the contested legal provision, which allows the Ministry of Labour and Social Affairs (hereinafter referred to as the "Ministry ') to lay down the legislation that a collective agreement of a higher degree is also binding on employers who are not members of the employers' organisation which concluded the contract. It recalls that the legislation distinguishes the collective agreement concluded between the relevant trade union body and the employer (so-called corporate) and the collective agreement concluded for a larger number of employers between the relevant higher trade union body and the organisation or employers' organisations (so-called collective agreement of a higher degree), referring to the provisions of Section 20 of the Labour Code and the collective bargaining law. From the point of view of their content, it points out that these contracts are of a kind of normative nature, in relation to the employees' claims on employment, and in part the nature of the bonds, i.e. they provide for mutual obligations between the parties to the contract. From the point of view of the general nature of collective agreements, the appellant classifies them as private-law contracts, for which it is typical that the parties to the contract regulate relations voluntarily, on the basis of free will. The legislation which would restrict the free will of the contra-hents for private contracts is considered to be in breach of Article 1 of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), which provides that the Czech Republic is a democratic legal state. Among the attributes of the rule of law is the applicant and the freedom to enter into private law relations.
Contrary to the result outlined in Article 1 The Constitution for the regulation of the freedom of contractual relations, in the view of the appellant, provides that Section 7 of the Collective Negotiations Act allows the Ministry to establish by law (decree) that a collective agreement of higher degree is also binding on employers who are not members of the employers' organisation which concluded the contract. In his view, the ancient principle of law, which is part of a European legal culture, is being undermined by the fact that the Treaty can only regulate relations between interested parties when the State has the right to extend the entire content of a collective agreement of a higher degree, at its own discretion, to entities other than those which have concluded it and which have therefore not shown their willingness to adjust their relations in this way. In this context, the appellant also reflects the practice of the Ministry, which, although not members of the employers' associations, asks in writing for an opinion on the extension of the binding nature of the contract, but is taking the same approach regardless of their position.
As regards the content of the employer's obligations under collective higher-level contracts, the appellant states that these are, in particular, the establishment of wage conditions, the extension of the leave to the recovery and the establishment of additional, generally above-standard, labour-law claims of employees, which are provided for by a mere substatutory act (decree) and are enforceable in the legal proceedings (§ 20 (3), § 207 of the Labour Code). This procedure, based on the provisions of Article 7 of the Collective Negotiation Act, is, according to its belief, also a contradiction with Article 2 (4) of the Constitution and Articles 2 (2) and (3) and Article 4 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '), which lays down constitutional limits for the possibility of a statutory restriction of freedom, as well as with Article 11 (1) and (4) of the Charter in connection with the restriction of property law linked to the extension of collective agreements of a higher degree.
Furthermore, the appellant points out that the Institute's overstep in the commitment of a collective agreement of a higher degree may also have adverse effects for employees, where, pursuant to Article 4 (2) (c) of Act No 2 / 1991 Coll. is invalid if it guarantees employees' wage entitlements to a greater extent than that provided for by a collective agreement of higher degree as maximum permissible, in a part exceeding that maximum permissible range.
The appellant considers as yet another deficit of the contested legislation that the employer to whom the contract is extended has virtually no opportunity to oppose such a procedure. The Ministry does not issue any decisions relating to individual employers (i.e. decisions with the character of an administrative decision) against which an appeal is made when extending the commitment of collective agreements. In view of the protection of the right of possible procedural means, it recalls that the publication of the Decree cannot be regarded as a measure within the meaning of the Law on the Constitutional Court, and the process which is under way before the publication of the Decree on the extension of the collective agreement to a higher degree is a legislative process and is therefore not subject to possible legal review from the addressees of its obligations. It points out that the inclusion of a particular employer in the list annexed to the Decree pursuant to Article 7 of the Collective Negotiation Act is by its nature de facto a decision which is capable of intervening in the rights of the employer but which is not subject to procedural protection within the meaning of Article 6 (1) of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention ').
From the empirical point of view, the appellant states that in 2001 alone the obligations of seven higher-level collective agreements were extended to 3860 employers - legal and natural persons - by Decree No. 238 / 2001 Coll., No. 300 / 2001 Coll. and No. 303 / 2001 Coll. respectively. In 2002 it became so at the date of the submission of the proposal by Decree No. 81 / 2002 Coll., No. 223 / 2002 Coll., No. 300 / 2002 Coll., No. 301 / 2002 Coll., No. 302 / 2002 Coll., No. 409 / 2002 Coll. and No. 410 / 2002 Coll. on a total of 2282 employers. Thus, according to the appellant, some collective agreements of higher degree are binding on more employers than the number for which they were concluded under the statutory legislation. In his view, a minority of employers impose their will on a majority in the sector or sector concerned, which he considers contradictory with the rights under Article 26 of the Charter.
In this context, it points out that, although, under Section 7 (2) of the Collective Negotiations Act, the obligation of a higher level collective agreement can only be extended to employers with similar activities and similar economic and social conditions, the practice of the Ministry does not guarantee compliance with this rule, since - with such a large number of employers concerned - the individual conditions of individual employers are not and cannot be examined. Therefore, many of them may be in a difficult economic situation, which is particularly true of small businesses.
In view of the certainty and clarity of the text of the contested legal provision, the appellant considers the term "employers with similar activities and similar economic and social conditions who have their registered office in the territory of the respective Republic 'to be questionable in view of the fulfilment of the characteristics contained therein.
The appellant also disputes with the purpose of extending the scope of collective agreements. It recalls that they are aimed at creating equal or comparable conditions in a competitive environment as well as equal or comparable social conditions for employees. However, according to the appellant's conviction, the extension of the commitment of a collective agreement of higher degree, as enshrined in Section 7 of Act No. 2 / 1991 Coll., not only does it not support competition, but limits it by establishing conditions of business for employers who are not members of the relevant employers' union - regardless of their specific possibilities. If the State subordinates employers who are not members of the relevant employers' association to a legal regime resulting from collective bargaining, the applicant considers that it discriminates against those employers and indirectly forces them to join the employers' association, which it considers to be contradictory to the right of freedom of association under Article 27 (1) of the Charter.
In the light of all these arguments, the appellant proposes that the Constitutional Court annul the provisions of Article 7 of the Collective Negotiation Act for the contradiction with Articles 1 and 2 (4) of the Constitution, Article 2 (3), Article 4 (1), Article 11 (1) and (4), Article 26 (1) and Article 27 (1) of the Charter, on the date of the declaration of findings in the Collection of Laws.
Pursuant to Articles 42 (3) and 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court sent the proposal in question to the Chamber of Deputies of the Parliament of the Czech Republic. In its opening statement of 17 December 2002, the President of the Chamber of Deputies of the Parliament of the Czech Republic, PhDr. Lubomír Zaorálek states that the International Labour Organisation Convention 98, on the implementation of the principles of the right to organise and negotiate collectively, (1948) lays down the right to state aid for voluntary negotiations on collective agreements between employers and employers' organisations, on the one hand, and workers' organisations, on the other hand, to adapt employment conditions in this way. Similarly, the European Social Charter (1961) requires Contracting Parties to support, where necessary and appropriate, voluntary bargaining mechanisms between employers or employers' organisations and employee organisations in order to establish conditions of employment by collective agreements. Recommendation 91 of the International Labour Organisation on Collective Contracts (1951) envisages extending the commitment of a collective agreement to other employers and employees, even if they themselves have not signed a collective agreement, and certain conditions are to be met, namely that the collective agreement itself already obliges a representative number of employers and employees, the request for enlargement will be submitted by one or more employees' organisations and employers involved as parties to the contract and that employers and employees to whom the collective agreement is to be extended will be invited to express their opinions.
On the basis of that provision, the party to the proceedings concludes that international agreements prefer to ensure that minimum wage and other working conditions are regulated by collective agreements (their regulatory provisions), rather than by statutory or substatutory provisions, and that a significant rule is established on the role which collective agreements are to fulfil, in particular, as sources of law, by extending the scope of the collective agreement (so-called extension). According to the President of the Chamber of Deputies, this rule makes it possible to guarantee a uniform standard of working and wage conditions for groups of enterprises with similar activities, economic and social conditions generally for certain sectors of the economy or industry, and also prevents speculative actions by certain employers who could rule out the commitment of collective agreements to their business by not becoming members of an employer organisation.
For these reasons, it is concluded that the extension of the scope of a collective agreement of a higher degree is in itself not contrary to the international conventions by which the Czech Republic is bound.
According to the President of the Chamber of Deputies, the legislation extending the commitment of a collective agreement differs from other labour legislation by not including its own regulation of labour law, but indeed only the extension of the commitment of the legislation already in question (the legal source) to other labour law bodies, and thus relationships. This provision does not, therefore, take the collective agreement provisions as its own provisions; the collective agreement does not change to the third parties concerned in a ministerial regulation issued separately under the law and within its limits, but remains a collective agreement.
It is further criticised that, contrary to international conventions and also Recommendation 91 The international labour organisation legislation contained in the provision of Section 7 of the Collective Negotiation Act is very harsh and does not meet the requirements of the Recommendation. The interested party takes the view that it is undisputed that the law itself should lay down certain conditions for enlargement and not leave the matter to the public administration for its completely free and open discretion, that there should be an obligation for the public administration to assess the need for enlargement, to establish criteria for assessing this need, and criteria for assessing the representativeness of the collective agreement in question, as well as criteria for determining the general interest in extending its commitment, in order to eliminate the economic handicaps of certain employers. To this end, the legal arrangements provided for by the President of the Chamber of Deputies should ensure that the necessary findings are made, in particular the findings of those entities to be affected by enlargement, and should also include at least the most basic procedural rules, in particular as regards the discussion of the legislation to extend the commitment of the collective agreement, other than the usual legislative procedure. Despite these reservations, the party to the proceedings considers the contested legal provision of Section 7 of the Collective Negotiations Act to be consistent with international conventions (namely Convention 98, the implementation of the principles of the right to organise and negotiate collectively, the European Social Charter), as well as Article 2 of the Constitution and Articles 2 and 4 of the Charter.
It is then concluded that it is up to the Constitutional Court to assess the constitutionality of that provision in the context of the proposal and to give its decision.
Pursuant to Articles 42 (3) and 69 of Act No. 182 / 1993 Coll., as amended, the Constitutional Court sent the proposal to the Senate of the Parliament of the Czech Republic. In its observations of 19 December 2002, its President JUDr. Petr Pithart, to the reservation of the appellants about the very purpose of extending the commitment of collective agreements to a higher degree, notes that the main objective of this institute is to create a comparable competitive environment for employers operating in similar fields of activity, which means creating comparable conditions in their competition. In this regard, it appears that the public law nature of collective agreements of a higher degree presupposes that, on the one hand, a collective agreement (both corporate and higher level) is a source of law in terms of its normative content and always applies to all employees of the employer concerned, including those who are not members of the trade union organisation which has concluded the collective agreement. It therefore raises doubts about the appellant's argument that the inconstitutionality of this institute is based on what it owns for private relations and private contracts.
It is pointed out in the statement that, in the case of the extension of the commitment of collective agreements of a higher degree, it is an institute that has been applied in the Czech Republic - after some development since about the beginning of the 20th century - already in the period of the so-called pre-Munich Republic, when collective agreements in today's concept were referred to as collective contracts of employment. These contracts were first applied on the basis of the subsidiarity principle (i.e. wage and other agreed terms applied to the employees of the Contracting Parties, unless otherwise agreed in the individual contracts), then became binding (if conditions worse than those in the mass contract were individually agreed, the more favourable arrangements contained in the collective contract of employment were applied). At a certain time, the legislation allowed, as stated in the statement below, for a mass contract to be declared binding in a particular field, even if the employer or employee, or both, were not members of organisations that had negotiated a collective contract of employment. This was the case, for example, in accordance with Government Regulation No 102 / 1935 Coll. and n., which regulates working conditions for workers in textile production for a transitional period, or under Government Regulation No 141 / 1937 Coll. and n., on the binding nature of mass labour contracts.
From a legal standpoint, the Senate comparative president states that a similar institute is being applied in other European countries. For example, in the Federal Republic of Germany, the Collective Negotiation Act contains in Section 5 provisions allowing, under the conditions laid down, to extend the commitment of collective agreements to employees and employers who are not members of any of the organisations that have concluded a collective agreement.
The procedure which, in the opinion of the party concerned, can be compared to the institute for the extension of collective agreements is also applied in European Union law. Article 139 of the Treaty of Amsterdam provides that "where the social partners so agree, their dialogue at Community level may lead to contractual relations, including the conclusion of agreements. Agreements concluded at Community level shall be implemented either in accordance with the practice and procedures inherent in the social partners and the Member States or in the areas covered by Article 137, at the joint request of the signatories, by a Council decision on a proposal from the Commission. '; In recent years, a directive of the Council of the European Communities, which contained a framework agreement containing the adjustment of the relevant labour law area, concluded by the social partners, namely the Confederation of European Trade Unions (ETUC), the Union of Industry of the European Community (UNICE) and the European Centre for Public Entrepreneurship (CEEP), has been adopted. On the basis of the Directive adopted in this way, Member States must then adopt legislation or other measures which comply with the Directive, i.e. ensure the validity and effectiveness of the framework agreement in their territory. In essence, in the view of the President of the Senate in this way, the commitment of framework agreements between the social partners is extended to all employers in the Member States. As an example of a party to proceedings, Directive 96 / 34 EC, concerning the Framework Agreement on parental leave concluded between UNICE, CEEP and ETUC, Directive 97 / 81 EC, concerning the Framework Agreement on part-time work, also concluded between UNICE, CEEP and ETUC and, where appropriate, Directive 1999 / 70 EC, concerning the Framework Agreement with UNICE, CEEP and ETUC on fixed-term employment contracts. The reasons for this procedure are set out in detail in the preamble to the relevant directives, which indicate, inter alia, that such a procedure is considered appropriate and desirable in certain cases in the European Union. In this context, it is stated that one of the reasons mentioned in the preamble to the directive is also that the Council has not decided (i.e. there has not been a consensus) on the proposal for a directive in the field of labour relations, presented with a view to distorting competition, and called on the social partners to conclude the relevant agreements' in order to increase the competitiveness of businesses'. Consequently, the interested party concludes that, within the European Union, an aspect relating to comparable conditions in competition is also accentuated in the field of labour relations. The President of the Senate draws attention to the fact that the content of these framework agreements of the social partners operating at European Union level will also bind all our employers, or in some cases it already does, because, for example, Directive 96 / 34 EC, on the Framework Agreement on parental leave, concluded between UNICE, CEEP and ETUC, was already reflected in the Labour Code as part of the harmonisation of our legal order with European Union law when it was amended by Act 155 / 2000 Coll.
As regards the appellant's reservations as to the lack of legal regulation on the extension of collective agreements of a higher degree, including the arguments put forward, the President of the Senate essentially attaches to them as no appeal can be brought against the issue of any legislation in the context of administrative proceedings or administrative justice. In this respect, as it further states, it would seem appropriate in the legislation to specify the own mechanism for extending collective agreements of a higher degree, including the definition of criteria for assessing whether the conditions for enlargement are met in a particular case. However, the question is whether, in the very fact that the legal regulation seems too brief, its inconstitutionality can be seen as being imported by the appellant. Even such legal arrangements can, in the view of the party concerned, be applied in a constitutional manner (in accordance with the procedure prior to the issue of the legislation on the extension of the obligation of a collective agreement of a higher degree, so that the existing legal conditions of that extension are fully fulfilled). According to the President of the Senate, further legislation could therefore be considered either in the framework of the current overall recdification of labour legislation (the forthcoming new Labour Code and amendments to the related laws) or earlier in the framework of the "normal 'changes to labour legislation.
It is based on the possibility given by the provision of § 49 (1) of Act No. 182 / 1993 Coll., and since the application of the provision of § 7 of the Act on Collective Negotiations directly affects the Ministry of Labour and Social Affairs, the Constitutional Court referred to that Ministry with a request for comments on the proposal.
In its observations of 23 December 2002, the Ministry states that it constitutes an institute which has become part of the modern legal order of democratic European countries and its use is extended in various forms in many countries, such as Austria, Belgium, France and Germany (a detailed overview is given in the annex to this statement). According to the Ministry, the purpose of the Institute of Enlargement of Collective Contracts is to prevent the unjustified competitive advantage of those employers who oppose collective bargaining, or, although collective bargaining, but do not wish to give their employees the benefits that are normal and proportionate for similar employers, thus creating a better labour cost and a better market position at the expense of their employees. At the same time, the extension of the commitment of collective agreements of a higher degree is recognised as a State measure to promote collective bargaining under International Labour Organisation Convention 98, on the implementation of the principles of the right to organise and negotiate collectively (No 470 / 1990 Coll.).
As regards the appellant alleged to be in breach of the contested legal provision with Article 2 (4) of the Constitution and Article 2 (3) and Article 4 (1) of the Charter, the Ministry states that the obligations under the Charter are imposed by the State through its institutions, where the term "by law 'must be understood as meaning that" obligations may be imposed by law or other standard than those expressed in the Act but only if this standard has been empowered by law at least by law'. Also, "the limits governing the imposition of obligations may only be laid down by regulations with at least the legal force of the law." The Act which determines these limits must also, in its view, be regarded as a collective bargaining law which, in Paragraph 7 (1), empowers the extension of the obligation of a collective agreement of a higher degree, namely the imposition of an obligation, a law (decree); In Article 7 (2), it then sets limits on the imposition of obligations, allowing extensions only for employers who have similar activities and similar economic and social conditions.
The State does not proceed arbitrarily in the extension of collective higher-level agreements, as the Ministry believes, when such an extension must comply with the legal conditions. At the same time, it is noted, even with reference to the order of the Constitutional Court in point IV of the ÚS 587 / 01, that the provisions of Section 7 of the Collective Negotiation Act are a piece of work, which is why, during the past period, the Ministry, on the basis of a dialogue with the social partners, sought to comply with the law in accordance with the procedure agreed in the Council of Economic and Social Agreement. The application of the condition of "similar activity" to extend the commitment of a higher level collective agreement is currently based on data from the Administrative Register of Economic Entities of the Ministry of Finance, where their activity is indicated for economic operators according to the Sectoral Classification of Activities, held by the Czech Statistical Office, which is based on the data of employers themselves. Another criterion for the evaluation of individual bodies by the Ministry is the number of employees, which is examined from three independent sources (data from the parties to the higher level collective agreement concerned, the administrative register of economic operators of the Ministry of Finance and the Czech Social Security Administration Registry), while the commitment of the higher level collective agreement is not extended to entities with fewer than 20 employees.
In practice, according to the Ministry, the process of extending the commitment of higher-level collective agreements is initiated by at least one of the contracting parties making a duly substantiated proposal. If the two Contracting Parties do not submit a proposal jointly, the other Party's observations shall be annexed to it. In the event of a disagreement between the other Party and the proposal, that disagreement shall be submitted for consideration to the advisory body of the Minister for Labour and Social Affairs - the Commission for the extension of the obligation of a collective agreement of a higher degree to other employers ("the Commission '). The Commission shall be composed of three representatives of employers and three representatives of trade unions appointed by agreement and on a proposal from the senior bodies of employers' organisations and trade unions. It shall be chaired by the Deputy Minister, who shall not vote at the hearing. Although agreement has always been reached between the parties in the Commission's practice, if it is not achieved, the decision is for the Minister. The Ministry also assesses whether a collective agreement of a higher degree does not contain provisions that are contrary to legislation; If such discrepancies are identified, the parties shall consult on their rectification.
The employer to whom the extension of the commitment to a collective agreement has been proposed shall be invited by the Ministry to deliver an opinion which shall be examined by the Commission. At the same time, it shall be informed that, if it does not receive this opinion within the prescribed time limit, the agreement to the proposed extension of the commitment is envisaged. This mechanism is considered by the Ministry to be some protection for employers who, for competitive reasons, may be reluctant to inform themselves about the above-standard benefits of employees or their economic intentions. In the absence of proof of due delivery of an opinion by a particular employer, the obligation shall not extend. Compliance with the Act on collective bargaining required conditions for each employer, to which the commitment of a higher level collective agreement is extended, shall be assessed separately by the Commission and shall make recommendations to the Minister in this regard.
Finally, the Ministry notes that the draft decree on extending the commitment of a collective agreement is going through the usual legislative process, i.e. by discussing with all the points of comment and then in the bodies of the legislative council of the Government or the legislative council of the Government, in accordance with the legislative rules of the Government.
Pursuant to Article 68 (2) of Act No 182 / 1993 Coll., as amended, the Constitutional Court, when deciding on the annulment of laws and other laws, assesses the content of those provisions in terms of their compliance with the constitutional order or, where applicable, the laws in the case of other legislation, and ascertains whether they have been adopted and issued within the limits of the constitutional competence and the constitutional procedure. If the Constitutional Court assesses the constitutionality of the competence of the legislator and the constitutionality of the legislature process, it is based on the provisions of Paragraph 66 (2) of the Law on the Constitutional Court, according to which the application for annulment of laws and other legislation is inadmissible if the constitutional law or the international treaty with which the regulations under review are in conflict has ceased to be valid before the application of the Constitutional Court is served. It follows from the above that, in the case of legislation issued prior to the entry into force of the Constitution of the Czech Republic, Act No. 1 / 1993 Coll., the Constitutional Court is entitled to examine only their content compliance with the existing constitutional order, but not the constitutionality of the procedure of their formation and compliance with the standard competence. (See sp. zn.
That interpretation of the provision of § 68 (2) of Act No. 182 / 1993 Coll., as amended, also fully affects the case under consideration when Law No. 2 / 1991 Coll. was approved by the former Federal Assembly of the CSFR on 4 December 1990, it became effective on 1 February 1991, i.e. before the entry into force of the Constitution of the Czech Republic, without prejudice to the draft of the contested provision § 7 of the Act none of its amendments (i.e. Act No. 519 / 1991 Coll., No. 118 / 1995 Coll., No. 155 / 1995 Coll., No. 220 / 2000 Coll., and No 151 / 2002 Coll.).
The distinction between the draft contested provision § 7 of Act No. 2 / 1991 Coll. is as follows:
(1) The Ministry of Labour and Social Affairs of the Republic may provide by law that a collective agreement of a higher degree is also binding on employers who are not members of the employers' organisation which has concluded the contract.
(2) Only employers with similar activities and similar economic and social conditions who have their head office in the territory of the Republic concerned and are not bound by a higher-level collective agreement may extend the commitment of a collective agreement referred to in the previous paragraph. "
The legal institute of collective agreements is enshrined in the Czech legal order in particular by the provisions of § 20 to 22, § 30, § 32, § 35, § 60a, § 73, § 74, § 83a, § 85, § 88, § 92, § 95, § 96, § 99a, § 102, § 105, § 111, § 119, § 120, § 124 - 126, § 128, § 129, § 131, § 140, § 143 and § 200 of the Labour Code and Act No. 2 / 1991 Coll., on collective bargaining, as amended. Collective agreements are the result of collective bargaining between the social partners. The purpose of collective bargaining legislation in the European democratic context, and within the framework of collective agreements, is to ensure social reconciliation, establish a mechanism for continuous social communication and a democratic procedural solution to possible conflicts between employers and employees. The collective bargaining system reflects the development of European democracy in the second half of the 19th and the first half of the 20th century, mirrors the search for a peaceful, non-violent solution to relevant tensions threatening internal peace.
The reality of the functioning of this mechanism is given by the acceptance by the State of the outcome of the social negotiations (under certain conditions, in Czech law contained, for example, in Section 4 of the Collective Negotiation Act), i.e. by assigning the quality of the sources of the law to the normative content of collective agreements, from which claims can also be claimed by the courts.
The collective bargaining mechanism is also applicable in areas other than labour relations. An analogous example is the provision of § 17 (2) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended, according to which the provision of benefits in kind in the provision of health care to insured persons is given a framework contract which is the result of a conciliation procedure between representatives of health insurance associations and representatives of relevant group contractual health institutions represented by their interest associations, and which is presented to the Ministry of Health, which will assess them in terms of compliance with legislation and public interest and then issue them as a decree.
In a free company in which neither employees nor employers can devise an obligation to associate themselves (Article 27 of the Charter), the collective bargaining institute, which provides for collective agreements, is regularly linked to the extension of their regulatory scope outside the scope of the bond. The mechanism of this extension may already be conceptually contained in the collective agreement itself, without such an extension requiring the adoption of another legislative act (an example of legislation in the UK), or the mechanism foresees the issuance of a special legislative act to extend the scope of the founding. In this context, the European Conceptual Standard is based on the assumption that the concept of collective agreements within the meaning of a legal act binding only on the Contracting Party would not allow the basic purpose of collective bargaining to be achieved.
If the purpose of collective bargaining is to be a mechanism of social communication and a democratic procedural solution to potential conflicts threatening internal peace, it is also linked to the requirement of legitimacy (representativeness). As such, the German legislation (Section 12 (1) of the Tariff Act) considers a limit of 50% of employers in the field. In other words, the Minister for Labour and Social Affairs of the Federal Republic of Germany may declare a certain collective agreement (Tarifvertrag) universally binding only if at least 50% of the employers in the field concerned have participated in its conclusion within the participating employers' associations.
The appellant's objections, a group of Members, against the constitutional deficits of Section 7 of the collective bargaining law can be classified into four groups. The first consists of objections concerning the restriction of contractual freedom on collective agreements of a higher degree of non-participating employers, the second absence of the possibility of judicial protection for those employers, the third objection to the insecurity of the contested legal provision and finally the fourth restriction of freedom to join.
According to the settled view of the Constitutional Court (see the findings of sp. zn. With the very nature and purpose of collective bargaining linked by the Institute of Extension, i.e. the possibility of extending the normative over the bond impact of a collective agreement, from the point of view of the constitutional law, it therefore constitutes a conflict between the limitation of the right of ownership under Article 11 of the Charter and the public good within the meaning of Article 6 of the European Social Charter, published under No 14 / 2000 Coll., in conjunction with Article 1 of the Constitution and Article 27 of the Charter.
The extension of the scope of the collective agreement of a higher degree constitutes, by its general economic nature, price regulation by adjusting the wages and working conditions of employees (the positive definition of the concept of price regulation under Act No. 526 / 1990 Coll., on prices, as amended, is narrower). For the admissibility of price regulation, the Constitutional Court defined a constitutional framework with regard to the legislator in previous case-law. This admissibility has been addressed in the context of the acceptability of determining the value of the point in health insurance, the acceptability of rent regulation and finally the acceptability of agricultural and food product production quotas.
In the finding in the case sp. zn. Price regulation is therefore an exceptional and acceptable measure only under very limited conditions. Although the fundamental right contained in Article 26 (1) of the Charter may be invoked within the meaning of Article 41 (1) of the Charter only within the limits of the implementing law, for the legislator or for the legislator, the limits laid down in Article 4 (4) of the Charter, according to which their substance and meaning must be investigated when applying the provisions on the limits of fundamental rights and freedoms. State (public) regulation, based on taking into account important factors (in the area of the premium, the cost of providing health care, etc.), must also take into account the possibility of making a profit when setting the price. The absence of such a maximum in price regulation may result in the exclusion of a certain area of business and the creation of a State monopoly, i.e. the substance and meaning of the fundamental law resulting from Article 26 of the Charter. '
In the case sp. zn. It was based in particular on Article 1 (2) of Additional Protocol No 1 to the Convention, which gives States the right to adopt laws which they consider necessary for the control of the use of property in accordance with the general interest, as well as the case law of the European Court of Human Rights. According to it, such laws are particularly necessary and common in the area of housing, which in modern societies becomes a central issue of social and economic policy, for which the legislation must have a wide margin of discretion (assessment), both in determining whether there is a public interest in the application of guidance (control) measures and in selecting detailed rules for the implementation of such measures. As the European Court of Human Rights pointed out in the case of James et al., State interference must respect the principle of fair balance between the requirement of the general interest of society and the requirement to protect the fundamental rights of the individual. There must be a reasonable (justified) relationship between the resources used and the objectives pursued. The Constitutional Court therefore accepted the possible price regulation of the rent in this case, but subject to the application of the principle of proportionality (see, for all components of the principle of proportionality, the findings of the Constitutional Court sp. zn. Pl. ÚS 4 / 94, Pl. ÚS 15 / 96, Pl. ÚS 16 / 98 - published in Sb., Sv., Sv. 2, p. 57 et., Sv. 6, p. 213 et., Sv., Sv. 13, p. 177 et.; published under No 214 / 1994 Coll., No., 280 / 1996 Coll., p. Although the Constitutional Court recognised the presence of the first of the components, i.e. the suitability of the device used in relation to the objective pursued, it noted that the principle of necessity, that is, the subsidiarity of the device used in relation to other possible means, from the point of view of the limited fundamental right (in the case of ownership): "In order to enable the owners of rental houses to comply with the obligations already stated, the right of the individual to a proper residence within the meaning of Article 11 of the International Covenant on Economic, Social and Cultural Rights may, for example, be chosen a path which had already been followed by the first public legislation, which in the provisions of Article 9 (4) of Law 32 / 1934 Coll., in the version of the Act, allow the rent to be increased because of the cost incurred for occasional or exceptional need to be corrected." On the basis of that argument, the Constitutional Court concluded that Article 4 (3) and (4) of the Charter were infringed, in conjunction with Article 11 (1) of the Charter. From a general point of view, the Constitutional Court, in the present case, also formulated another criterion for assessing the constitutionality of price regulation: "Price regulation, if it is not to exceed the limits of constitutionality, must clearly not reduce the price so as to eliminate at least their return, given all the costs demonstrated and necessarily incurred, since in such a case it would in fact imply a denial of the purpose and all the functions of ownership. '
On the fringe of the constitutional bail-out of the production of food and agricultural products, the Constitutional Court in the finds sp. zn. Pl. ÚS 39 / 01 and Pl. ÚS 5 / 01 pointed out that neither constitutional order nor international treaties on human rights and fundamental freedoms prohibit legislators from restricting the quantity of production, distribution or consumption of goods. Therefore, the legislator may, within the limits of the constitutionally guaranteed basic principles, human rights and freedoms, as it considers, introduce price or quantitative regulation of production in a particular sector of the economy, define or affect the type and number of operators involved in it, or restrict contractual freedom in the application of production on the market or in the purchase of raw materials and production facilities. The Constitutional Court did not find the free market free of all regulation as a value of constitutional importance. He pointed out the limits of freedom of business in the European Union, where the market economy is directly declared a constitutional principle in the Treaty of Establishment. It pointed out, however, that entitlement to a price on the market is not a fundamental right. He recalled that the system of production quotas represents a form of control of the use of property which is introduced for the public interest. It also referred to the case law of the European Court of Justice. In its judgment in the Metallurgiki Halyps action against the Commission (258 / 81), he stressed that the Community restrictions on the production of steel in the public interest, even if they could jeopardise the company's profitability, do not constitute a breach of the right of ownership. He pointed out that the European Court of Human Rights had never evaluated the general legal measures of the Member States of the Council of Europe, which regulated the volume of economic production in view of their compatibility with the European standard of fundamental right of ownership. It pointed out that the current case law of the Constitutional and Supreme Courts of the Member States of the European Union and of other democratic legal States does not imply that restrictions on production for reasons of stabilising prices on the market to a certain level, if imposed fairly on all existing producers, would be considered incompatible with the national standard of ownership. This statement does not, of course, exclude their political criticism, which is strong. However, the Constitutional Court found no reason to interpret Article 11 of the Charter differently. The introduction of production quotas in the cases under consideration qualified as justified, as it followed the public interest, which it identified as a guarantee of a minimum price in an environment where state subsidies contribute to increasing production which would not be caused by demand. State interference in agriculture is motivated by its social, economic and ecological specialities. The Constitutional Court recognised that the systems of production quotas for agricultural products existed in the European Union and refused that the national human rights standard required a clean market economy, free from State interference. In doing so, he expressed his restraint in calling for strict control in terms of its necessity and the actual need for legislation by which the State interferes with the economy. He stressed that the choice of economic policy was the responsibility of the Parliament of the Czech Republic as a political body that bears political responsibility to voters for recognising problems in the economy and for selecting tools to deal with them.
As regards the constitutionality of Section 7 of the Act on Collective Negotiations, the Constitutional Court has reached a conclusion on the rationality of the existing findings sp. pl. ÚS 5 / 01 and Pl. ÚS 39 / 01, in conjunction with Article 1 of the Constitution and Article 27 of the Charter in conflict with property rights pursuant to Article 11 of the Charter.
In the event of a collision, it is necessary to lay down the conditions under which one fundamental right or freedom has priority and which other or certain public good has to be met (see, for the principle of proportionality, the settled case-law of the Constitutional Court, in particular the findings sp. zn. In this context, the maximum is that fundamental right or freedom can be restricted only in the interests of another fundamental right or freedom or public good. The first is the criterion of suitability, i.e. the assessment of whether an institute restricting a fundamental right allows the objective pursued (protection of another fundamental right or public good) to be achieved. The second criterion of measuring fundamental rights and freedoms is the necessity criterion, consisting of comparing a legislative instrument limiting fundamental rights or freedom with other measures to achieve the same objective, but not affecting fundamental rights and freedoms or affecting them in a less intensive manner. The third criterion is a comparison of the gravity of both in the conflict of standing fundamental rights or public goods. These fundamental rights or public goods are prima facie equivalent. Comparing the severity in the collision of standing fundamental rights or public goods (after fulfilling the conditions of suitability and necessity) is about considering empirical, systemic, context and value arguments. The empirical argument can be understood as the actual seriousness of the phenomenon which is linked to the protection of a particular fundamental right. A systemic argument means considering the meaning and including the fundamental right or freedom in question in the system of fundamental rights and freedoms. The context argument can be understood as a further negative impact on the limitation of one fundamental right due to the preference of another. The value argument represents consideration of the positive effects in the conflict of standing fundamental rights due to the accepted hierarchy of values.
In the structure of this principle, the Constitutional Court applies not only postulates of suitability, necessity and proportionality in a narrow sense in its case-law, but also a postulate of minimisation of intervention in fundamental rights (see page 4 of the Opinion of the ÚS 4 / 94): "It can therefore be concluded that, in the case of the conclusion on the merits of one of the two conflicts of fundamental rights, the use of all possibilities of minimising intervention in one of them is also a prerequisite for a final decision. This conclusion can also be derived from the provisions of Article 4 (4) of the Charter, namely that fundamental rights and freedoms must be investigated not only in the application of the provisions on the limits of fundamental rights and freedoms but also by analogy in the case of restrictions on them as a result of their mutual conflict. '
In the case under examination, the collective bargaining institute and its associated effect of the extension of the scope of collective agreements meet the conditions which result from its acceptance of the maturities of suitability and necessity. In fact, it is an effective means of achieving the objectives pursued (social reconciliation) and also meets the caulties of analysis of the plurality of possible normative means in relation to the intended purpose and their subsidiarity in terms of limitation of constitutional protected value - fundamental law or public good (e.g. by comparison of the extension of the scope of the collective agreement and the State regression outside the collective bargaining system, which is an example of the setting of a minimum wage under Paragraph 111 (4) of the Labour Code).
The very measurement of both in the conflict of constitutional protected values, from the point of view of systemic, value, context and empirical, enables the accepting institute to conclude the extension of the scope of collective agreements, but only on condition that certain couriers are met.
If the constitutional acceptability of the Institute is an extension of the scope of collective agreements of a higher degree of European democratic legal experience and the resulting standards, a comparison with European Union law, as well as the establishment of a procedural mechanism to ensure a balance between the legal protection of freedom and the guarantee of the internal peace of the human community, this can only be achieved in the relevant context at the cost of restricting property law. However, the priority of a public good before the right of ownership must be conditional on the legitimacy (representativeness) of the collective bargaining system and thus on the relevance of the market share of counterparties in the sector. Furthermore, the requirement to minimise interference with fundamental law and freedom, which is part of the principle of proportionality, also implies the cautel of the exceptional nature of such a measure and the associated maximum for the legislator to extend the scope of the collective agreement to adopt only in extremely justified cases of public interest.
From the point of view of the conditions of the principle of proportionality thus interpreted, the provisions of Article 7 of the Collective Negotiation Act must be regarded as being contrary to Articles 11 and 26 of the Charter, in conjunction with Article 4 (4) of the Charter, when the requirement to define the limits of the representativeness of the collective bargaining system in the context of the conflict of fundamental rights and public goods, and from the point of view of minimising the limitation of fundamental rights, the requirement of such a measure has not been complied with.
Paragraph 7 of the Act on Collective Negotiations empowers the Ministry to extend by the decree the obligation of a collective agreement of a higher degree to employers who are not members of the respective employers' associations, if they are engaged in similar activities, if they have similar economic and social conditions as contra-hents of the contract and have their registered office in the Republic.
The Ministry extends the scope of the collective agreement by means of a decree throughout the period of effectiveness of the Collective Negotiation Act by stating in its dictation that, in the case of a clearly identified collective agreement of higher degree, its obligation to the employers listed in the Annex is thereby extended, with an annex containing a precise list of employers with their commercial name, address and IČO (see e.g. Decree No. 410 / 2002 Coll., on the extension of the amendment to the collective agreement of higher degree).
In practice, the legal authorisation contained in Section 7 of the Collective Negotiation Act is fulfilled by the Decree, i.e. by a generally binding law, and therefore, in practice, by a regulation relating to precisely individual entities that is typical of the application of the law.
The current practice thus deviates from one of the fundamental material characteristics of the concept of law (legislation), which is universality. Let us remember that the requirement of the universality of the law is an important part of the principle of the rule of law and hence the rule of law.
Arguments in favour of the universality of the law or the law, as already pointed out by the Constitutional Court in the case sp. zn. Pl. ÚS 12 / 02 (will be published in Sv. 29, published under No. 83 / 2003 Coll.) are the following: division of power, equality and the right to an independent judge.
The first of the arguments against the laws, the legislation on unique cases, is the principle of division of power, i.e. the separation of legislative, executive and judicial powers in a democratic rule of law: "The adoption of laws on unique cases is the most hindered by the area of application of law. The right to a legal judge and the independence of legal protection are also excluded by the legislature in areas which are not protected by the principle of" nulla poena sine lev '(where the lex can only be a general and written legal sentence). "(H. Schneider, Gesetzgebung, 2. Auflage, Heidelberg 1991, p. 32). Article I, Section 9 of the US Constitution, in this context, stated:" No law may be passed containing a judgment.'
The individual regulation contained in the legislation depriving the addressees of the possibility of judicial review of the fulfilment of the general conditions of the regulatory regulation of a particular entity, which lacks transparent and acceptable justifications in relation to the possibility of general regulation, must therefore be regarded as contradictory to the rule of law (Article 1 of the Constitution), which is an immune division of powers and judicial protection of rights (Article 81, Article 90 of the Constitution). These derogatory reasons for judicial review of constitutionality also fully affect the assessment of the constitutionality of Section 7 of the Act on collective bargaining. It is fully a matter for the legislator to determine an extension procedure in the form of an administrative procedure with the possibility of judicial review (as indicated by the Constitutional Court in its resolution of 11.7.2002 sp. zn. IV), or in the form of a general standard definition of the entire group of employers affected by the extension, with the possibility of judicial review of the fulfilment of the sub-conditions (for example, in the dispute over the application of claims arising from a collective agreement of a higher degree of employment, and possibly judicial review of administrative decisions relating to, for example, control of working conditions).
The Constitutional Court also expressed in a number of its findings on the question of the conditions under which uncertainty and incomprehensiveness of the law should be regarded as contradictory to the rule of law and, therefore, under which conditions these become derogatory grounds. In the find sp. zn. Pl. ÚS 6 / 2000 (ECR., p. 21, p. 195 et seq.; published under No. 77 / 2001 Coll.) in this connection, he stated: "If, under Article 1 of the Constitution, the Czech Republic is a democratic rule of law, it means - inter alia - that its legal order is to comply with the principle of predictability of the consequences of the law and its certainty and clarity. Only such a law, for which its consequences can be clearly foreseen, corresponds to that concept of a democratic rule of law." The aspects of the testing of the constitutionality of the legal provision with regard to the requirement of certainty and clarity were then stated by the court in the decision of the sp. zn.
These aspects need to be applied in the light of the constitutional requirements imposed by the Constitutional Court on the legislator in the establishment of powers of legal provisions.
According to the legal opinion contained in the finding of sp. zn. Pl. ÚS 45 / 2000 (ECR., p. 21, p. 261, p.; published under No. 96 / 2001 Coll.), the constitutional definition of the derived standard of execution is based on the following principles: "Other legislation" must be issued by an authorised body, cannot interfere in matters reserved for the law (thus cannot provide for primary rights and obligations) and must result in the clear consent of the legislator to regulate above the legal standard (it must therefore be open to the sphere of another legislation). The Constitutional Court then established the condition for the certainty of the legal limits of "other legislation 'in the provision of authorisation:" Compliance with the unmarked conditions of the special regulation, which then become the constitutive features of the legally protected object, gives the impression that the legislator's powers of executive authority in other areas of the life of the company could be equally unequivocally formulated. "
Paragraph 7 of the Collective Negotiation Act identifies a state body whose normative competence is enshrined and defines the class of possible extension of the scope of the collective agreement with the characteristics of similar activity, similar economic and social conditions and seat in the Czech Republic. Although very general, it may be considered that this regulation provides a sufficient interpretation framework for determining the conditions of extension following a specific collective agreement of higher degrees, taking into account the analogous position of employers who are members of employers' associations and those who are not.
From the point of view of the appellants' objections to the uncertainty of Article 7 of the Act on Collective Negotiations, the Constitutional Court finds that the classification of the contested legal provision does not meet the requirement of certainty, but the requirement of completeness, which results from the principle of proportionality for the legal authorisation to extend the scope of a collective agreement to a higher degree, by the deficit of adjusting the representativeness of collective bargaining and the exceptional nature of a measure limiting the fundamental right of ownership, and which results from the maximum protection of the fundamental right of judicial protection.
The appellants' objection to the restriction of freedom of association relates to the restriction of the negative side of that freedom, that is, the right to choose freely not to be a member of a particular association and the corresponding prohibition on any association being forced.
If it is possible to attest to this objection from the point of view of the existing classification of the provisions of Section 7 of the Collective Negotiations Act, which, in terms of the principle of proportionality, suffers from the absence of a limit on the representativeness of collective bargaining, by imposing that limit on the opposition of the institute to the extension of the scope of a collective agreement of higher degree with the right to associate is no longer relevant.
In view of all the reasons set out, the Constitutional Court annulled the provisions of Article 7 of the Collective Negotiation Act for the Conflict with Articles 11 (1), 26 in conjunction with Article 4 (4) of the Charter and Articles 1, 81 and 90 of the Constitution.
Knowing that the repeal of the legal provision in question without adequate legiskance would result in the constitutionally undesirable incompleteness of the law, by delaying the effectiveness of the derogatory finding pursuant to Article 70 (1) of Act No. 182 / 1993 Coll., as amended, on 31 March 2004, the Constitutional Court created a time limit for the democratic legislator to apply the act No. 2 / 1991 Coll., on collective bargaining, as amended.
President of the Constitutional Court:
JUDr. Holecek v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 199 / 2003 Coll., on the application for annulment of the provisions of Section 7 of Act No. 2 / 1991 Coll., on collective bargaining |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 02.07.2003 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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