The Constitutional Court found No. 286 / 2020 Coll.
The Constitutional Court found of 12 May 2020 sp. zn. Pl. ÚS 47 / 18 on the application for annulment of § 67 (2), possibly § 67 and 67a of Act No. 155 / 1995 Coll., on Pension Insurance, as amended
Valid
The Constitutional Tribunal found
Text versions:
26.06.2020
286
FIND
The Constitutional Court
On behalf of the Republic
On 12 May 2020, the Constitutional Court decided under sp. zn.
as follows:
I. The application for annulment of Paragraph 67 (2) of Act No. 155 / 1995 Coll., on Pension Insurance, as amended, is rejected.
II. The application for annulment of Sections 67 paragraphs 1, 3 to 16 and 67a of Act No. 155 / 1995 Coll., on Pension Insurance, as amended, is rejected.
Reasons
Recital of the proposal
1. By a proposal received by the Constitutional Court on 12 December 2018, and further supplemented and extended on 21 March 2019, a group of 41 Members of the Chamber of Deputies (hereinafter referred to as "the draftsman") proposed to the Constitutional Court that it should abolish either Paragraph 67 (2) or, more broadly, Sections 67 and 67a of Act No. 155 / 1995 Coll., on Pension Insurance, as amended (hereinafter referred to as "the Pension Insurance Act").
2. The proposal opposes legislation establishing the way pensions are increased. In particular, the complainant considers the provision of Section 67 (2) of the Pension Insurance Act to be problematic, according to which the basic and percentage rates of the pensions paid increase from the payment of the pension due in January. As an alternative, the wider option of cancellation is proposed only in the event that the Constitutional Court finds this appropriate given the interdependence of the legislation.
3. The appellant notes that, according to Article 116 (1) of Act No. 582 / 1991 Coll., on the organisation and implementation of social security, as amended, (hereinafter referred to as the "Security Act"), pension benefits are paid in advance within the regular monthly periods determined by the payer of the benefit, unless otherwise specified. According to § 117 of the same law, pension benefits are paid for members of the armed forces within the prescribed payment deadline for the current calendar month. The deadline for the payment of benefits shall be determined by the Defence, Home Affairs and Justice Ministers in their fields of competence.
4. For 2018, the pensions were increased by Government Decree No 343 / 2017 Coll., by the amount of the general assessment base for 2016, the conversion rate for the adjustment of the general assessment base for 2016, the reduction limits for the establishment of the calculation base for 2018 and the basic estimates of the income for 2018 and the increase in pensions for 2018. In accordance with Article 4 (1) of that Regulation, pensions of old-age, disabled, widower, widower and orphan children granted before 1 January 2018 from the payment of the pension due after 31 December 2017 are increased by CZK 150 per month, and (b) the percentage rate of pension is increased by 3,5% of the percentage rate of the pension due on the date on which the percentage rate increases.
5. The pension payment provided for by the Czech Social Security Administration (hereinafter referred to as "ČSSZ ') for individual pension insurance participants is not related to either the date of birth or the date on which the pension was granted to a specific beneficiary or when it was applied for or started to be paid. It was designed so that the State could pay pensions not at the same time but continuously and as evenly as possible in payment terms. A specific date is determined by the payee of the benefit in an arbitrary manner. The pension payment is not only a pay term but also the beginning of the period (" running' or "moving 'month) for which the pension paid, including indexation, is due on that day. For example, the pension paid on 18 April 2018 will be paid for the period from 18 April 2018 to 17 May 2018.
6. According to the appellant, it is not possible to increase pensions from their repayment, since this deadline (the date of payment of the pension payment, as well as the beginning of the period for which the pension is payable) is different for the various pension participants. This creates an inequality between those persons, which the appellant considers to be a breach of the principle of equality and of unlawful discrimination against one body compared with another. The legislation in force, also taken over by the Government, involved all the beneficiaries of the pension scheme, the inequality between them and the members of the armed forces. The members of the armed forces shall receive a pension benefit within the specified payment deadline for the current calendar month in accordance with Section 117 of the Security Implementation Act. They are therefore subject to an increase in their pension from 1 January. These members thus receive an ad valorem pension benefit for all thirty-one days of the month of January of that year, while the other entitlement to the pension benefit paid by the ČSSZ shall not receive an ad valorem pension benefit for all thirty-one days of the calendar month of January of that year.
7. The appellant considers that the current text of the relevant legislation, which binds the increase in pensions to their repayment, has not been maintained by the constitutional requirement of "proportionality 'of material old-age security (or, in the event of incapacity for work or loss of a provider), and that the inequality of pension insurance participants is established. The requirement to grant the same rights under the same conditions, excluding unjustified differences, was not respected by the contested legislation, since its valid wording, without constitutionally acceptable reasons, puts those pension beneficiaries at a disadvantage to whom pension benefits are paid to CSSR, since the payment deadline is at the same time the date on which the pension benefits are increased.
8. The appellant accepts that it is left to the decision of the ČSSZ to proceed with the payment of the pension benefit, which will be reflected in the different payment dates of individual pension participants. There is no doubt that it is necessary to make payments of pension benefits at different times, taking into account the number of beneficiaries. However, it is not acceptable to tie the date from which they are validated to the time when they are paid.
9. The contested legislation coincides with the principle of non-accession equality within the meaning of Article 1 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter), as it infringes general equality before the law. There is unjustified discrimination and the different treatment of different entities in the same or comparable situation, without any reasonable and objective justification for such treatment, since the increase in the pension benefit is linked to its maturity, which occurs at random at different times for each pensioner. As a result of this discrimination, one entity is entitled to an increase in the pension benefit of the same amount as the other entities having a pension benefit within the specified payment deadline for the current calendar month, although all of them are in the same living situation.
10. There is also a breach of the principle of Accesorial Equality within the meaning of Articles 3 (1) and 11 (1) of the Charter. Discrimination in fundamental rights and freedoms is prohibited, inter alia, because of "other status." This other position is the status of a pension seeker who is not a member of the armed forces. There is also no uniform approach to all insured persons, where one group of pensioners is not given the same degree of protection compared to the remaining group of pensioners without constitutionally legitimate reasons for such access. The principle of Accesorial Equality is also undermined by interference with the requirement of equality in the protection of property rights, as well as the right to adequate physical protection in the old age, incapacity for work and loss of a provider under Article 30 (1) of the Charter.
11. The applicant observes that in the Slovak Republic the legislation is formulated in such a way that pension benefits increase as from 1 January of the relevant calendar year.
Observations of the parties, interveners and amici curiae, replies by the appellant
a) Expression of the Chamber of Deputies
12. The Chamber of Deputies on the invitation of the Judge-Rapporteur to comment, made pursuant to § 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., stated that the amendment to the Pension Insurance Act, which contained the draft contested provision § 67 (2), was published in the Collection of Laws as Law No. 220 / 2011 Coll. The proposal for this amendment was submitted by the Government to the Chamber of Deputies on 2 March 2011 (House Press 277). The draft law submitted by the Government contained a proposal for a new version of the entire Section 67 of the Pension Insurance Act. In the final vote, the bill, as it was submitted to the Chamber of Deputies, was approved by 82 votes in favour and 53 votes against of 136 Members. The Chamber of Deputies then debated the bill returned by the Senate with amendments on 21 June 2011 and 105 votes in favour and 71 against the 176 Members present remained on their original bill. Parliament has given its assent to the draft law in accordance with the constitutional procedure. The law was signed by the President of the Chamber of Deputies and the Prime Minister. The President of the Republic, who was delivered for signature on 23 June 2011, did not sign it and returned it to the Chamber of Deputies. The Act was therefore duly declared in the Collection of Laws under No. 220 / 2011 Coll. According to the Chamber of Deputies, it is up to the Constitutional Court to examine the question of unconstitutional opposition by proposing the contested provisions and to give a decision.
(b) Statement by the Senate
13. The Senate on the invitation of the Judge-Rapporteur to comment, made pursuant to § 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 18 / 2000 Coll., stated that the legislation in question in § 67 of the Pension Insurance Act came from the amendment published under No. 264 / 2002 Coll. (effective as of 1 July 2002). The bill was referred by the Chamber of Deputies to the Senate on 7 May 2002 and was assigned to the Senate register with the number 309 (3rd term of office). The Senate Organizing Committee ordered this press to discuss the Committee on Health and Social Policy and the Committee on Economy, Agriculture and Transport. On 22 May 2002, the Committee on Health and Social Policy adopted a resolution recommending the Senate to approve a bill as referred to by the Chamber of Deputies. On the same day, the Committee on Economic, Agriculture and Transport recommended that the Senate express its willingness not to deal with the bill. The Senate debated the bill at the 18th meeting on 30 May 2002 and adopted Resolution 412, by which it expressed its will not to deal with the bill, when in vote 61 47 of the Senators of 54 voted in favour of it and no one opposed it. In the light of the decision pursuant to § 107 of Act No. 107 / 1999 Coll., on the Rules of Procedure of the Senate, as amended by Act No. 16 / 2015 Coll., the draft Act was not debated.
14. Paragraph 67 (2) of the Pension Insurance Act was amended with effect from 22 July 2011 by Act No. 220 / 2011 Coll., amending Act No. 155 / 1995 Coll., on Pension Insurance, as amended, and certain other laws, in the context of a change in the indicators for determining the amount of pension indexation; there has been no change in the deadline for raising pensions.
15. The Senate finally stated that it was fully up to the Constitutional Court to examine the constitutionality of the contested regulation and decide on the case.
(c) Government observations
16. The Government informed the Judge-Rapporteur of the invitation made pursuant to § 69 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, that he was entering the proceedings; Whereas it has the status of intervener.
17. In its comments, the Government first expressed its views on the issue of non-accesorial equality. To the appellant's assertion that there is an inequality between the beneficiaries of the pension pension and the beneficiaries of the pension paid by the Ministry of Defence, the Ministry of Interior and the Ministry of Justice, the Government states that it is not a breach of the principle of equality, since all the beneficiaries receive an increased pension and no one is harmed in the amount of the pension indexation, i.e. the entitlement cannot be impaired with a later payment term of an increase or less than the prescribed increase (according to the relevant government regulation).
18. It should be taken into account that pensions, the amount of which is set in accordance with Sections 34 and 35 of the Pension Insurance Act per month, are paid in accordance with Section 116 (1) of the Security Implementation Act (if they are paid by the ČSSZ) in advance within the regular monthly periods determined by the pension payee, so that some pensioners receive an increase earlier but not over a longer period. Within a calendar month, all pensioners shall receive, within a given period of payment, a payment of the pension after its increase in accordance with the relevant legislation (now the Government Regulation), within a regular increase in January each year; within a calendar year, all pensioners receive 12 monthly instalments of an ad valorem pension.
19. For administrative technical reasons, pension payments are not linked to the calendar year and the calendar month, but are divided into separate payment dates. At the same time, the period for which individual instalments are paid is inseparably linked; it is not the period of the calendar month but the period of the so-called moving month, which is defined by the date of payment of the pension determined by the pension payer. This "moving 'month shall start on the due date of the pension in one calendar month and end on the day immediately preceding the due date in the following calendar month. Repayment, for example, paid in January is therefore not paid for the period from 1.1 to 31.1, but for the period from due date, i.e. from 18.1. to the day preceding the due date in February, i.e. to 17.2. It is therefore always paid for the same number of days regardless of the due date. In layman's terms, the" retirement year' lasts the same long for each pensioner, receives the same relative sum of funds during that period, and cannot be compared to the static model of the calendar year, as the changes in the pension amount are related to the payday. Thus, the only difference between pensioners with different pension payment dates is that some will have an ad valorem pension benefit at their disposal earlier (in practice only within days). However, there cannot be a situation in which pensioners with a later pension payment would not have reached some amounts at all (cf. Judgment of the Supreme Administrative Court No 3 Ads 15 / 2013-71).
20. The fact that ČSSZ pays pensions within a calendar month over a long period of time on different due dates (payment dates are in practice even days, from day 2 to day 24 in a calendar month) has its substantive reasons. These pay dates were established historically at a time when cash payments were the only possible way to pay pensions and it was in no way possible to pay all pensions on one day via mail (not only from technical, but also from personnel and security aspects). The post office was not and is not technically able to secure such a large amount of cash payments of pensions (formerly over 2 million, now around 1 million) for one payment term, both at the post office counter and at the place of residence of the pensioner (so-called home delivery). Therefore, the unification of pay dates up to one day is not real at present and not even in the foreseeable future, when there will still be a large number of cash payments of pensions.
21. The legislation in force governing the pension payment procedure described above cannot therefore be regarded as arbitrary or extreme as it has a rational basis for taking into account the technical possibilities of both the pensioner and the postal licence holder. Therefore, some of the differences raised by the appellant are justified by legitimate reasons. In order to ensure a regular monthly payment of about 3.5 million pensions to almost 2.9 million pensioners, the legislature must create the conditions for this task to be feasible. In the vast majority, pensions represent a single source of income for pensioners and must therefore be paid properly and on time.
22. From a technical point of view, it can be added that the ČSSZ has internal rules for determining a specific payment deadline which take into account the possibilities of administrative and accounting processing. The payout dates on even days allow the distribution of payments into smaller groups - working cycles and ČSSZ has a timetable for the payment of pensions into which the working cycles are included and specific payment dates are assigned to each working cycle.
23. This also implies a different way of paying the pensions of ČSSZ on the one hand and the social security authorities of the departments of defence, interior and justice on the other (Section 9 of the Security Implementation Act). First of all, it should be noted that the authorities of the latter departments pay pensions to an incomparably smaller number of "pensioners'; together to less than 60,000 pensioners (compared to 2,9 million pensioners to whom the pension is paid by ČSSZ). Thus, pensions can be paid to all pensioners on the same due date for the relevant calendar month (in practice, there is not a single payment deadline for these authorities, since within the Ministry of Justice the payment term is the 10th day of the month and for other social security institutions on the 11th day of the month). The different rules on pension payments by these social security institutions are based on both historical developments and other substantial aspects.
24. In the past, pension rights were governed by different legislation which included different conditions for the entitlement to the pension of "civilians' and the pension rights of members of the armed forces and corps, the conditions for the competent holders of insurance being created for the smooth and easy implementation of pension payments, including in respect of the number of pensioners and pensions paid, the method of payment of pensions under the conditions of individual departments and the amount of expenditure on pensions paid. In fact, the full harmonisation of the legislation with regard to pension rights took place only in 1995. In addition, it should be pointed out that, despite this unification, there is a close link between pension payments and the payment of service charges related to the termination of service (the regular payment of the service allowance) in the case of members of the armed forces, for example in the case of a pension pension pension, which may take the form of a further payment of more or less of the service allowance, which is reflected in the same term and in the same way as the pension.
25. As regards the different dates for pension payments within the month (or otherwise fixed period), for other social benefits, a different maturity date is possible within the payment period. An example can be given of the payment of sickness insurance benefits under Section 110 (3) of Act No. 187 / 2006 Coll., on sickness insurance, as amended by Act No. 267 / 2014 Coll., (according to this provision, sickness insurance benefits are paid no later than one month after the date on which the proof of entitlement to the benefit was delivered to the district social security administration; the maturity is therefore in practice on different dates, which is also true in the case of the conversion of the amount of benefits from 1 January according to the new amount of the reduction limits according to § 22 (2) of the sickness insurance law) or payment of the care allowance pursuant to § 18 (1) of Act No. 108 / 2006 Coll., on social services (according to this provision, the allowance is paid monthly, in the calendar month for which it belongs; within the month, the maturities of individual beneficiaries are different, even in the event of a legal change in the amount of the contribution from day 1 of the calendar month). After all, work income is paid at different times (pursuant to § 141 (1) of Act No. 262 / 2006 Coll., Labour Code, the salary or salary is due no later than the following calendar month; the payment dates for wages or salaries for a particular month therefore differ in practice and may also vary within the same employer). The various pay dates are therefore not only specific to pension payments; it is essential and common that the deadline for payment, such as the last day of the month or the following month, is set.
26. It should be pointed out that all the authorisations, including the pensioners to whom the pension is paid by ČSSZ, as well as the pensioners who were members of the armed forces and corps and to whom pensions are paid by the social security authorities of the Ministry of Defence, the Ministry of Interior and the Ministry of Justice, will receive 12 instalments of the pension paid monthly within the calendar year, the total amount paid being always the same regardless of the due date. For example, if the pension is CZK 15,000 per month and in January of the calendar year the pension was increased by CZK 310 per month to CZK 15 310, all pensioners with this pension for the calendar year will receive a total of CZK 183 720 (i.e. 12 x CZK 15 310), regardless of the specific maturity date in the calendar month, which may be at the earliest 2 and no later than 24 days of the month due to the rules for determining the pay term (this applies to all four pension payers). The only difference between pensioners is that, within this range, a pensioner receives a pension sooner and another later, which, as mentioned above, is given by the above technical and organisational possibilities of both pension payers and the holder of a postal licence (to set a single monthly payment deadline for all pension payers is not realistic, even if this would solve their problem in the context of a group of Members' proposal); Moreover, the appellant itself does not dispute that the payment of pension benefits on different dates is necessary in view of the number of beneficiaries. These different periods of payment of the pension within a calendar month cannot be regarded as a breach of the constitutional principle of equality. It is only a technical and accounting matter that the pension paid by the CSSR is paid in advance within regular monthly periods (Section 116 (1) of the Security Implementation Act) and the pension paid by the Ministry of Defence, the Ministry of Interior and the Ministry of Justice as social security bodies is paid in due time for the current calendar month (Section 117 of the Security Implementation Act); It is essential that the number of instalments per month is the same and that all 12 instalments (January to December) are equal within one calendar year. All pensions, irrespective of which institution pays them, shall be increased according to the same rules, from the payment of the pension due in the same month, i.e. January of the calendar year.
27. The Government also expressed its views on the issue of Accesorial Equality. She pointed out that 'inequality in social relations, if it is to affect fundamental human rights, must achieve an intensity which is doubtful, at least in a certain way, to the very essence of equality. This is usually the case when an infringement of another fundamental right, such as the right to own property pursuant to Article 11 of the Charter of Fundamental Rights and Freedoms, is linked to a breach of equality [the Constitutional Court's finding sp. zn. In so doing, if there is a relationship with Article 11 (1) of the Charter, it is not clear from the proposal what the infringement of the protection of property rights is intended to consist specifically. Only the different payment dates of the pension within the same calendar month, with pensioners receiving the same amount of pension paid in the same calendar month, cannot be regarded as a breach of the constitutional right to own the property and have the same level of protection.
28. In relation to Article 30 (1) of the Charter, the appellant notes that the principle of proportionality of physical security has not been maintained, since the same rights have not been granted under the same conditions as a result of the fact that the payment deadline for pensions paid by CSSZ, which varies between insured persons, is at the same time the date when the pension benefit is increased. However, the principle of proportionality is understood differently in both case-law and literature. For example, in the Constitutional Court's finding sp. zn. Pl. ÚS 8 / 07 of 23.3.2010 (N 61 / 56 SbNU 653; 135 / 2010 Coll.), it is stated: "The actual adequacy of material security in relation to individual pension insurance participants must be seen in relation to the satisfaction of the individual's living needs, in relation to the widest possible range of persons, but also in relation to the insured person as a payer that produces the financial resources from which adequate material security will be provided. However, proportionality as a legal (constitutional) category is much more primarily aimed at examining whether any pension insurance scheme (or general social insurance scheme) is capable of providing the disabled with a number of resources in the event of a defined social event that will ensure that they continue to live while respecting the category of dignity in their social context." (recital 63).
29. In the decision of the Constitutional Court sp. zn. Pl. ÚS 54 / 10 of 24.4.2012 (N 84 / 65 SbNU 121; 186 / 2012 Coll.), it states: "The first step of the review within this framework tests the definition of the meaning and substance of social law, in the case under examination the right to adequate material security in the event of incapacity for work within the meaning of Article 30 (1) of the Charter. In general, the essence and purpose of this right is to ensure a minimum material standard sufficient to lead a decent life in cases where the employee is unable to provide himself with his own work as a result of illness. However, the obligation of the State to ensure this standard cannot be seen, from a constitutional point of view, as an obligation to provide the highest possible (economically sustainable) social performance to individuals, but only as an obligation to ensure that the above, the frequency and the nature of these transactions are ensured by the already mentioned social standard '(paragraphs 54 and 55).
30. With regard to professional literature, for example, it states: "We consider that, primarily due to the purpose of the right to social security, proportionality should relate to the possibility of having a decent life (for example in old age) in a given situation. Social security benefits must therefore be particularly high to enable a person to earn a decent living for the social situation that has arisen." (Barton, M. and the collective). Fundamental rights. Praha: Leges, 2016, p. 494 et seq.). It is clear that the appellant's view on the definition of proportionality is contrary to the concept as set out above and therefore this ground, according to the appellant, of not maintaining the constitutional requirement of proportionality is not relevant. The proposal does not in any way imply the required intensity of inequality, which would call into question the very nature of equality.
31. With regard to the appellant's reference to Slovak legislation, the Government stated that each State has its own legal environment and technical and economic possibilities, while generally, the specific legislation of one State is in principle not transferable to another State's legal environment.
32. The Government also pointed out that if the appellant follows that, on the remaining different dates of pension payment, a supplement of part of the pension increase for the period from 1 January to the date of the previous pension payment would be granted as a proportional part of the indexation, this procedure would, on the contrary, result in relatively significant differences (i.e. inequalities) between pensioners with different pay dates. If a supplement for the period from 1 January to the payment of the pension due in January were to be made, in addition to the 12 instalments of the pension, the beneficiary would receive an additional supplement, the amount of which would depend on the date of the pension payment. For example, if the pension was CZK 15,000 per month and was increased by CZK 310 per month, then the entitled person with a pension payable on 2.1. would receive a supplement of CZK 10 for 1.1. in addition to the pension payment payable on 24.1. in addition to the pension payment of CZK 15 310 for days from 1.1. to 23.1. (i.e. 23 x 10 CZK). In the sum of the amounts paid in a given calendar year, a pensioner with a later retirement period would receive completely unjustifiably CZK 220 more. This procedure would also mean higher costs incurred by pointing out these surpluses in January (e.g. for increases in January 2019, these costs would be about CZK 1.1 billion). In order to avoid this negative impact, either a reduction in the pension payment due in February by the amount of the supplement granted in January (as it would actually be the provision of a part of the pension in advance) would have to be made, or the indexation of the pension would have to be tied to a period of only one calendar year, i.e. in the December payment, to reduce the amount of the pension by a part of the increase granted in January of the same calendar year in the form of a supplement (in order not to be granted in fact twice). However, this procedure would not only be administratively very demanding, complicated and costly, but essentially incomprehensible to the recipient of the pension, the final financial effect being the same as in the procedure under the applicable legislation. In addition, in the case of arrears, there would be inequalities between the pensioners to whom the pension is paid by ČSSZ and to whom the supplement would be paid and the pensioners to whom the pension is paid by other social security authorities (Ministry of Defence, Ministry of Interior and Ministry of Justice) and to whom the supplement would not be paid. It is clear from the above that the supplementary payments of this kind are unfounded under the conditions of the Czech pension scheme.
33. The introduction of such additional payments would also entail various technical complications. For any change in pension (for example, adjustment of pension for concurrence with another pension) that interferes with the period of indexation and cannot be charged in an automated manner (more than one financial change in the reporting period), it would always be necessary to carry out in addition a special bill for the period up to 31 December and from 1 January to the date preceding the January pension payment. Thus, not only would there be a change in regular indexation, but also a significant increase in workability and therefore the time-consuming of normal processing. Correspondence with pensioners, including making decisions and announcements, would also be more complex. A change would require the costs of moving to a new system.
34. The Government also draws attention to Supreme Administrative Court judgment No 3 Ads 15 / 2013-71. In this regard, the Supreme Administrative Court concluded that there is no reason why it should refer the case to the Constitutional Court for an assessment under Article 95 (2) of the Constitution of the Czech Republic, since "the inequality between pensioners with different periods of pension payment (different dates of actual projection) cannot actually occur. The constitutional principles of equality and non-discrimination are not in any way affected or challenged by the legal provisions laid down in Article 67 (2) of Law No 155 / 1995 Coll. (see also Joined Cases No j. 2 Ads 15 / 2015-49 and No 1 Ads 171 / 2015-39). Judgment No 3 Ads 15 / 2013-71 also served in the review before the Constitutional Court, which, in its resolution of 9.12.2014, sp. zn. I. ÚS 281 / 14 (in SbNU not published, available at http: / / nalus.ujud.cz), found that the Supreme Administrative Court had properly dealt with the objections that the complainant had sought to prove that, by setting the various pension pay dates against certain pensioners with a later pay-out deadline, he had duly dealt with unjustified discrimination.
35. For these reasons, the Government proposed to reject the proposal.
(d) Ombudsman
36. The Ombudsman stated, as amended, that she did not exercise her right of entry into the proceedings under Paragraph 69 (3) of Act No 182 / 1993 Coll.
(e) Replication of the appellant's observations by the Government
37. The Constitutional Court sent the observations received to the appellant for a possible reply. It stated, first of all, that the Government's observations could not be regarded as an independent expert assessment of the proposal, since its drafting was based on the Government's intention to reject the proposal. He insists on his proposal.
38. The appellant considers the question: "When did he (or will he) receive a pensioner paid by the Czech Social Security Administration with a payment deadline of 24 days a month of indexation for 2019 on 1-23 January 2019?" Authorisations from the Ministry of Defence, the Ministry of Interior and the Ministry of Justice for all these 23 days of pension increase for 2019 were given in their January payment deadline, the pension holders of the Czech Republic received it for 22 of these days on January 2, but those pensioners who were arbitrarily appointed (without any criteria and reasons) until the 24th day will not receive any increase for these previous days.
39. Contrary to Article 30 (1) Thus, despite efforts to ensure adequate material security for all pension insurance participants, the current legal regulation does not provide part of the insured persons with adequate material security, while the resulting inequality is not reflected in any principle fulfilling the social policy function, but only in indiscretions. This, however - as expressed in the Constitutional Court's finding of 23 March 2010, sp. zn. Pl. ÚS 8 / 07 - is necessary, in the existence of a whole range of pension systems and methods of pension benefits, to choose a variant in which all principles of social policy are reflected, as well as a pension scheme which consistently respects the constitutional principles and fulfils Articles 30 (1), 1 and 3 (1) of the Charter and, at the same time, to investigate the substance of those fundamental rights within the meaning of Article 4 (4) of the Charter.
40. Even if, as the government states, all pensioners receive 12 monthly payments of an ad valorem pension within a calendar year and all receive equal treatment over the same period (moving month, year). A pensioner with a later pay term (e.g. 24 days) will receive 12 ad valorem monthly instalments per year but will not receive them for the relevant calendar (financial) year. For equal access, the same (same methodology) cost of living in the calendar month, not moving, should be covered.
41. These can be demonstrated on the example of two beneficiaries who have a pension of CZK 12 400 in 2018, which is to be increased by CZK 930 from 2019. The authorised A is due on the 2nd day of the month, and if his pension is converted from the moving month to the calendar month, he will receive CZK 400 (12.400 / 31 x 1) for January 1 (paid January 2. 12. 2018) and CZK 12 900 [(12400 + 930) / 31 x 30] for January 2 - 31 (paid January 2. 1. 2019), thus overall he has an amount of CZK 13 300 for January calendar month. By contrast, the authorized B is due on the 24th day of the month. If he converts his pension from a moving month to a calendar month, for January he will receive CZK 9,200 (12400 / 31 x 23) for January 1-23 (paid on December 24, 2018) and CZK 12,900 [(12400 + 930) / 31 x 8] for January 24-31 (paid on January 24), so he has a total amount of CZK 12,640 for January calendar month. After deducting the income of pensioner A from the income of pensioner B, the difference in funds for the calendar month of January 2019 can be found in the amount of CZK 660. If the government considered that the introduction of surpluses would result in inequality between pensioners with different pay deadlines, then it is true that the surpluses would be different in size, but that would equalise the current unequal approach of indexing all pensioners. In the event that pensioner A receives a supplement of CZK 30 (930 / 31 x 1) for January 1 and a supplement of CZK 690 (930 / 31 x 23) for January 1-23, both authorisations for January calendar month will have the same funds of CZK 13 330. In fact, these funds are authorised for January by the Ministry of the Interior, the Ministry of Defence and the Ministry of Justice, to which the pension is paid for a calendar month.
42. The appellant draws attention to the judgments of the Supreme Administrative Court in Case 121 / 2015 and 171 / 2016 Ads and 1 Ads.
43. The appellant also believes that the adjustments needed to switch to another system would not be as difficult as the government suggests.
f) Observation of the Czech Social Security Administration
44. The Constitutional Court for the purposes of § 48 (2) of the Law on the Constitutional Court also called for the Czech Social Security Administration to comment.
45. It stated that, under Section 116 (1) of the Security Act, pension benefits are paid in advance within the regular monthly periods specified by the payer, unless otherwise specified. The pension is therefore always due for a monthly period beginning on the due date of the instalment and ending on the day preceding the due date of the subsequent instalment. In the terms of ČSSZ, the maturity of pensions is determined in such a way that payments are spread evenly over even days from the 2nd to the 24th day of the relevant month of payment. If the due date of the pension benefit is due on Sunday, the pension shall be paid on Monday, if it is due on Saturday, the pension shall be paid on Friday. Other changes to paydays are reported in the media or on the ČSSZ website. The pension payment paid before its due date shall be payable only if the conditions for entitlement to the pension on the date of its due date have lasted. The reason for the distribution of maturities on even days is the continuity of the technological provision of these payments by ČSSZ and the state company České Poše, s. p.., České národní banka and other banks, the possibility of smooth processing of related changes and, last but not least, the uniform use of funds from the state budget.
46. The payment dates of the ČSSZ for even days were established historically at a time when the cash payment was the only possible way of payment of the pension, on the basis of an agreement between the state firm Česká poše, p., and ČSSZ. The reason for this division was that the state-owned company Česká Poř, p., was not (and is not at present) able to provide such a large amount of payments (formerly 2 million, currently 1 million) on one payment deadline, both at the post office counters and at the place of residence of the creditor. The payout dates on even days therefore allow the distribution of payouts into smaller working cycles in such a way that their implementation from a technological and organisational point of view is possible at all; At the same time, the needs and deadlines of administrative and accounting processing (both ČSSZ and Czech Post, p.) are also taken into account. ČSSZ (in cooperation with the Czech Post, p.) has therefore determined the payout dates in accordance with this logic and in accordance with the legal provision that the ČSSZ gives this option. The entire system of complex and interconnected automated processing of the pension agendas of ČSSZ has been established on the basis of the payment deadlines thus established, and the same logic is therefore attributed to the payment terms and to the cashless payment of pensions into accounts.
47. Paradoxically, the applicant recognises that it is necessary to make the payment of pension benefits at different dates and that these periods of pension payments are set by the CSSR as the payer of the benefit. On the other hand, the increase in this levy paid since the January instalment, i.e. at the time of the own pension, is in its view discriminatory. However, the method of increasing the pension from the instalment due in January, as enshrined in Section 67 (2) of the Pension Insurance Act, follows the principle of paying advance pension payments within regular monthly periods. If Paragraph 67 (2) of the Pension Insurance Act were to be contrary to the principle of Accesoric and Non-Accesorial Equality, it would have to be contrary to the principle of Accesoric and Non-Accesorial Equality as well as the entire pension payment system. In fact, the pension is increased which is paid in advance within regular monthly periods (instalments), which is not granted separately as a fixed amount for the period from the first day of the month to the last day of the month, which would be paid only for technical and administrative reasons, together with the pension from the normal instalment. If the pension paid in advance is increased within regular monthly periods, the increase is due from the January instalment, i.e. for example for a pensioner with a pension maturity on the 24th day of each month (in the amount of the recap of a reply by the author entitled B), as the pension itself is paid in advance for the period from 24 January to 23 February.
48. If the appellant advocates a different amount of "supplement 'to pensioners with a different maturity date, by" equal access to them must be covered by the same (same methodology) cost of living in a calendar month, not a moving one', then the very principle of pension payment under Section 116 (1) of the Security Implementation Act is de facto in question. For equal access and equal coverage (same methodology) of the cost of living in a calendar month, the pension payment would have to be paid to each pensioner on the same day. If the own pension payment is not paid to all on the same day and for the same period, the "supplement 'cannot be calculated as if the pension belonged to the period from 1 January to 31 December.
49. Moreover, the "supplement" for indexation will not ensure that pensioners have the same cost of living in January, since the entitled "B" would not receive this "supplement" as proposed by the appellant until the payment date of January (namely 24 January), when it will already receive the payment of the pension at an ad valorem rate. For this reason, in the final sum of the instalments of a calendar year's pension, in the event of the payment of a non-refundable "supplement 'to valorisation of entitlement B, although according to the logic of the matter, the total amount of twelve monthly instalments of the pension paid in an ad valorem amount in one calendar year should be the same for all entitled with different maturity dates. If, in the procedure laid down in Section 67 (2) of the Pension Insurance Act, the sum of the payments thus paid at the same ad valorem amount of the pension is the same, whereas, in the application of the method enforced by the appellant, one group of beneficiaries would have been favoured, then contrary to the principle of Accesoric and Non-Accesorial Equality, the appellant's proposal is, on the contrary, a proposal.
50. If the appellant considers that its "supplement 'would not undermine the principle of equality and unlawful discrimination of the parties concerned, in particular between the beneficiaries of the pension and the beneficiaries who are members of the armed forces, then it is wrong in this, because according to its proposal the pensioners to whom the pension is paid should receive a" supplement' to the indexation, whereas the members of the armed forces should not. This procedure would then result in members of the armed forces receiving, in a calendar year, a total sum of 12 monthly instalments each less than the entitlement to be paid by the ČSSZ pension and for which, in addition, 12 monthly instalments would be paid a "supplement 'to the indexation.
51. In application of Section 67 (2) of the Pension Insurance Act entitled B, for which the pension is set on every 24th day of the month, the beneficiary A and the beneficiary B would receive, in fact, twelve monthly pension payments of CZK 159 960 in the calendar year (the first instalment is actually paid in January, the twelfth instalment is actually paid in December). In the event that the entitled A should receive the "supplement" for the indexation for the day 1. 1. 2019, i.e. according to the author the amount of 30 CZK, and the entitled B "supplement" for the indexation for the period from 1. 1. 2019 to 23. 1. 2019, i.e. according to the author the eligible A would in fact receive the amount of 159 990 CZK in the resulting sum in 2019, while the entitled B the amount of 160 650 CZK. The entitled C - a former member of the armed forces - would not receive any supplement, so in a calendar year it would be paid "only" 12 monthly pension payments totalling CZK 159 960.
52. The "supplement" to the indexation imposed by the appellant is therefore not a supplement, but an additional bonus for the later payment of the pension, since in the following calendar year, according to the appellant, the same situation should occur, i.e. the eligible B should always receive a higher amount in the total sum of all payments of the pension paid in the calendar year than the eligible A, although according to the applicable legislation, the amount of pensions should be the same for both. Even when compared to a beneficiary C, the same amount of pension would be paid by the buyer. The Ministry of Defence would be favoured by the Qualifying B as it would receive 12 monthly instalments of the pension plus the above-mentioned "supplement ', i.e. always a higher amount, repeatedly in subsequent calendar years. Thus, although according to the appellant for equal access it is necessary to respect the same amount of funds to cover all needs within a calendar year, the implementation of her proposal would result in the opposite, since the inequality between the entitled B on the one hand and the entitled A and C on the other would increase every year, very significantly in favour of the entitled B (the entitled C would not receive any" supplement "and would be paid" only "12 monthly pension payments of CZK 159 960 in the calendar year).
53. Contrary to the appellant, the CSSZ is convinced that the principle enshrined in Section 67 (2) of the Pension Insurance Act cannot be regarded as unreasonable, since, contrary to the author's proposal, it ensures that the entitled person to whom the pension is paid by the CSSZ is actually received in the calendar year twelve monthly instalments of the pension as well as the entitled person to whom the pension is paid under Section 117 of the Security Implementation Act. On the other hand, it would be unreasonable to argue that 12 monthly pension payments + a bonus of CZK 690 on the one hand and the same 12 monthly instalments without bonus (or with a bonus of CZK 30, etc.) on the other hand, constitutes a fairer (or the only right) solution to the procedure for increasing pensions than set out in Section 67 (2) of the Pension Insurance Act. In the view of ČSSZ, no reasonable explanation can be found as to why the group entitled with a later maturity date (in the words of the appellant completely randomly selected) should be favoured by a (higher) pension bonus compared to the other entitled with an earlier due date or otherwise professionally assigned. The appellant would have replaced it with a comparison of the fact that Qualified A enjoys a January payment payment payment earlier than the Qualified B on January 2 by a much more significant disproportion, by the fact that the Qualified B would receive more than both A and C for the same amount of income in the resulting sum of the calendar year. Such an unjustified difference would no longer be offset at any time, but an unjustifiably different amount of pension payments between these beneficiaries would occur annually.
54. The appellant's argument that the legislature has, on a flat-rate basis, deprived the entire group of eligible beneficiaries of an ad valorem pension benefit is wrong, since no person entitled is denied the indexation. The monthly pension payment is validated and thus the beneficiary receives 12 ad valorem monthly pension payments in a calendar year (payment of these 12 monthly instalments is made in a given calendar year). The appellant would add to these 12-month instalments a non-refundable "supplement 'or a bonus to the pension, the amount of which would, contrary to the sum of the monthly instalments for the calendar year in question, differ according to a completely random set maturity date (in the words of the appellant) of the pension payer. The amount that the creditor would have actually received in a given calendar year (i.e. 12 x pension + bonus of different amounts) would therefore be dependent on the" random "maturity date, thereby creating an unjustified unequal position between the beneficiaries.
55. It is easy that the eligible B, which has a fixed maturity from the 24th day of the month, will, at all costs, encourage him to receive a non-refundable "bonus" to validate, for example, CZK 690 per month, as this will give him more performance than A and C. Then, of course, there may be a reverse situation where a entitled A will insist that its pay date be from the 24th day of the month (it may also promote the introduction of a pay date from the 26th or 28th day of the month in order to reach the highest non-refundable "bonus"), and the entitled C will require an amendment to § 117 of the law on the performance of security, as it would be in a situation where a non-refundable bonus would be paid, while about 60,000 would be "damaged" by the payment "of only" twelve monthly payments of the pension fixed for a normal calendar month, i.e. waived from any January bonus.
56. It is not clear why the appellant's efforts are aimed at enforcing a 'supplement' to valorisation in January, when this' supplement 'does not eliminate the mutual inequality raised. If the beneficiary B would receive an amount of CZK 160 650 (12 x 13 330 + non-refundable "supplement" with January's valorised payment) in a calendar year, while the beneficiary C would receive an amount of CZK 159 960 (12 x 13 330) at the same monthly valorised amount of pension, then it cannot be said that only the "supplement" is equal. On the contrary, a "supplement' and its different levels of entitlement in a calendar year would receive a different total amount of pension, contrary to constitutional principles, and would create unjustified differences and discrimination against various pension insurance participants.
57. The difference between the eligible B and C is not based on the amount of the ad valorem pension payment, i.e. that the January payment of the eligible B (the first instalment of the pension received in a calendar year) would never be valorised, but that, while the beneficiary B receives the ad valorem pension in advance for the period that is yet to come (and in this way all the pensions are paid to him), the authorised C would receive an ad valorem pension for the current calendar month, i.e. in the first half of the period for which the pension is due. Thus, the beneficiary B receives an increased (valorised) pension, but receives it a little later and for a period other than an A or C entitlement. The reason why the beneficiary B receives an ad valorem payment later in January is that according to Article 116 (1) of the Security Act, pensions are paid in advance within regular monthly periods which are spread over even days of the calendar month by the payee. The pension payments provided for in Section 116 (1) of the Security Implementation Act are paid in different payment periods, with the pension payment being the full monthly instalment, not the payment of the pension divided in time into "intermediate periods' or" deniny ', as the appellant does. Valorised pension payments are in fact received by the pensioner in a calendar year, i.e. he can have, use and enjoy with these funds, a total of 12.
58. ČSSZ notes that the costs associated with any change in the system cannot be underestimated as they would have to be reflected in internal applications, accounting, notifications and reports, etc. The problem would be the processing of pension changes affecting the period of indexation. This would result in a significant increase in workmanship.
g) Replication of the author's comments by the Czech Social Security Administration
59. The Constitutional Court also sent the observations received by the CSSZ to the appellant for a possible reply. First of all, it expressed its view that it is not a technical statement from the CSSR, but merely an attempt to support the government's position to reject the proposal.
60. The appellant remains convinced of the accuracy of its reasoning. It explains that it is not about absolute amounts, but about the fact that, according to a valid and effective legal standard defining an increase in pensions each year, there is in fact an increase in pensions for individual pensioners on different days, which are determined entirely by the administrator of the benefit according to his approval. The so-called "supplement" is no doubt a bonus. While it is true that pensioners are currently given 12 ad valorem pensions in a calendar year, not for a given calendar year. Their equality is thus not guaranteed.
61. Moreover, according to the appellant, the situation does not need to be dealt with solely by arrears, but it can also be considered that the pensioner would receive an ad valorem part of the December pension payment already in the December pension payment.
62. The appellant is thus convinced that all pensioners have the same opportunity to access their right to adequate material security and to remove the unjustifiable differences raised by the Constitutional Court.
Proceedings before the Constitutional Court
63. The application was made pursuant to Article 64 (2) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 320 / 2002 Coll., on the Group of 41 Members, and the Constitutional Court considers that the application is not inadmissible or there are no grounds for termination of proceedings within the meaning of Sections 66 and 67 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll. The procedural assumptions of the procedure are fulfilled.
Assessment of the way in which the contested legal provisions are adopted
64. Pursuant to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court, in proceedings for the annulment of a law or its individual provisions, assesses whether the contested law has been adopted and issued within the limits of the constitutional competence and the constitutional procedure.
65. In the light of the above-mentioned observations of the Chamber of Deputies and the Senate, and given that the Constitutional Court has found nothing to the contrary, even the appellant, in the terms of the legislative process to which the contested provisions result, raises no objections, the Constitutional Court finds that the contested legislation has been adopted by Parliament within the limits of its Constitution and has complied with the legislative process leading to the adoption of the contested provisions by constitutional requirements.
Text of the contested provisions
66. Paragraph 67 of the Pension Insurance Act reads:
"(1) Paid pensions increase depending on the growth of the consumer price index (hereinafter referred to as price increases) and wage increases. Paid pensions are pensions awarded from a date that falls within the period before the calendar month to which the date from which pensions increase.
(2) The basic and percentage rates of pensions paid are increased from the payment of the pension due in January (hereinafter referred to as the regular term ').
(3) The percentage rates of pension payments shall be increased outside the regular deadline (hereinafter referred to as "exceptional term ') if, in the period for determining price increases determined in accordance with paragraph 4, the price increase reached at least 5%. In an exceptional period, pensions paid shall be increased from the payment of the pension due in the fifth calendar month following the calendar month in which the price increase was at least 5%.
(4) The period for determining price increases shall be determined as follows:
(a) within the regular period of June of the calendar year preceding one year of the calendar year in which the regular date for the increase in pensions falls;
(b) within an exceptional deadline, the calendar month in which price increases reached at least 5%.
(5) If the condition for increasing pensions by an exceptional date was met in July or August, pensions will only be increased on a regular basis, with August being the last month of the price increase period.
(6) Price increases are to be determined as a percentage of the consumer price index in the last month of the period fixed for the determination of price increases compared to that index in the calendar month immediately preceding the first calendar month of that period, with a minimum of 1 percentage point being fixed by rounding it to one decimal place in force. The calculation of price increases is made from the original basic aggregate indices of consumer prices (cost of living) per household total and from the original basic indices of consumer prices (cost of living) per household of pensioners determined by the Czech Statistical Office, using the higher price increase.
(7) The basic rates of the pensions paid shall be increased so that the basic rate of the pension is 10% of the average wage, with the amount of the basic rate rounded up to the whole of the ten crowns.
(8) The percentage rates of pensions paid shall be increased by as many percentage points, rounded up to the nearest decimal place in force, on the increase in pensions within a regular period, so that, for the average old-age pension, the sum of the amount of the increase in the basic pension rate and the amount of the increase in the percentage rate of the pension corresponds to the increase in the average old-age pension set at the sum of the price increases referred to in paragraph 6 and one half of the increase in the real wage, rounded to the nearest one decimal place in force. However, the percentage of pensions paid shall not be increased if, as a result of the increase in the basic pension rate referred to in paragraph 7, the amount of the average old-age pension is increased by at least as much as the percentage of the increase laid down in the first sentence.
(9) If, for the average retirement pension, the sum of the amount of the increase in the basic pension statement and the amount of the increase in the percentage pension fixed in accordance with paragraph 8 does not exceed 2,7% of its amount, a higher increase in the percentage pension statement may be provided, but not more than such that, for the average retirement pension, the sum of the increase in the basic pension statement and the amount of the increase in the percentage pension statement is 2,7% of its amount. The first sentence shall not apply if, in the calendar year in which the increase in pensions is decided on at regular intervals, pensions are also increased on exceptional dates.
(10) The percentage rates of pensions paid shall be increased by as much percentage as the price increases referred to in paragraph 6 if pensions are increased within an exceptional period.
(11) The increase in the percentage rate of pension is rounded up to the whole crown.
(12) The average old-age pension shall be determined according to the Czech Social Security Administration's data as the average of all old-age pensions paid for the last calendar month of the period of the price increase referred to in paragraph 4, except for old-age pensions which are paid at a lower rate for co-operation with another pension under Paragraph 59, and old-age pensions under Sections 29 (2) and 29 (3) (b), or, where applicable, old-age pensions under the rules applicable before 1 January 2010, granted for periods of insurance less than 25 years.
(13) The period for determining the growth of real wages shall be determined by establishing that the first year of that period is the calendar year following the last calendar year of the period for determining the growth of real wages used in the previous increase in pensions, taking into account the growth of real wages, and the last year of that period shall be the calendar year preceding the calendar year in which the date of the increase in pensions falls. Where, in a given period, the share for determining the growth of the real wage referred to in paragraph 14 is less than 1, the increase in the real wage shall be taken into account only in the case of an increase in pensions in which that share is greater than 1.
(14) The growth of real wages shall be determined as a percentage after rounding to one decimal place in force, according to the numerator of which the share of the general assessment basis for the last calendar year of the period for determining the real wage growth and the general assessment basis for the calendar year immediately preceding the first calendar year of that period, and in the denominator shall be the share of the average annual index of consumer prices for the household, calculated in total from the original basis indices of consumer prices established by the Czech Statistical Office for the last calendar year of that period and of that average annual index for the calendar year immediately preceding the first calendar year of that period.
(15) The increase in the percentage rate of pensions paid in the exceptional period is also one of those granted in the calendar year in which the percentage rates of pensions paid were increased in the exceptional period.
(16) The increase in pensions shall be laid down in the implementing legislation; if the increase in pensions is made within a regular period, the increase in pensions shall be fixed by 30 September of the calendar year preceding one year of the calendar year of the regular date of the increase in pensions and the increase in pensions shall be fixed within 50 days of the last day of the calendar month in which the price increase is at least 5%. '
67. Paragraph 67a of the Pension Insurance Act reads:
"(1) The percentage of the pension paid shall be increased by:
(a) 1 000 CZK per month from the payment of the pension due in the calendar month in which the beneficiary of the pension reached the age of 85 years;
(b) CZK 2,000 per month from the date on which the pensioner reached the age of 100 years.
(2) If the conditions for entitlement to multiple pensions are met, the percentage rate of the old-age pension shall be increased in accordance with paragraph 1. If the pensioner has reached the age of 85 in the calendar month in which the pension increases pursuant to Paragraph 67, the increase referred to in paragraph 1 (a) shall be the percentage increase raised pursuant to Paragraph 67. '
Assessment of the reasons for the proposal
68. The proposal under examination goes against the legislation governing the indexation of pensions by increasing the rates of pensions paid from the payment of the pension due in January. In essence, the appellant's argument is that, in a situation where the pension beneficiaries have a payment date within a calendar month set differently, the pension is received not for calendar months but for "sliding 'months beginning on such a due date, then the entitlement with a later due date will receive an increased pension for less days of the calendar month of January compared to the entitled one earlier. This includes unjustified inequality, contrary to the rights enshrined in the Charter, according to which people are equal in dignity and in rights (Article 1), fundamental rights and freedoms are guaranteed to all without distinction (Article 3 (1)), everyone has the right to own property (Article 11 (1)), and citizens have the right to adequate physical security in their old age and incapacity for work, as well as in the event of loss of the provider (Article 30 (1)). On the other hand, the government and the CSSR recognise the existence of a certain inequality only until the date on which pensions are due, but as far as their amount is concerned, they consider that pension beneficiaries are equal. However, any inequality as to the extent to which pensions are due cannot be reviewed by the Constitutional Court, since the proposal is not directed against it and the provisions governing it (in particular Section 116 (1) of the Security Act) are not contested by it.
69. In such a situation, it was up to the Constitutional Court to assess whether the legislation, in particular the appellant's opposition to inequality between pensioners, interfered with fundamental rights and freedoms. And if so, whether such intervention can stand in the light of constitutional requirements. In order to examine the acceptability of the legislature's intervention in the field of defined social rights, which now seems to fall within the scope of the problem, the Constitutional Court uses the so-called test of reason as a methodological tool. This is because rights belonging to this group can only be invoked within the limits of the laws which implement them (Article 41 (1) of the Charter), which expresses the opinion of the legislator that the regulation of these social rights is a legitimate subject of political engagement (i.e. it is primarily in the hands of the legislator). This precludes that the methodology of their review should be the same as that used for human rights, in particular in the title of the second Charter, such as the "strict 'test of proportionality, the application of which would, as a result, significantly restrict the legislature's discretion in adopting legislation to regulate the subject matter of social relations under review. The test of reason consists in defining the meaning and substance of social law, namely its essential content (first step), and an assessment of whether the law does not affect that essential content (second step), in which case the proportionality test would have to be used. If the substantial content of the law is not affected, it is assessed in the third step whether the legal regulation pursues a legitimate objective, namely whether it is an arbitrary substantial reduction in the overall level of fundamental rights. The fourth step is to consider whether the legal means used to achieve a legitimate objective is reasonable, even if not necessarily the best, most appropriate, most effective or wisest (see also in more detail the find sp. zn.
70. The Constitutional Court was essentially presented with two points of view on how to understand the mechanisms by which pensions are paid and increased. The first, represented by the appellant, focuses on the period for which pensions are paid (so-called moving month), and on the fact that part of the first moving month of the year does not cover (for various authorised in different quantities of days) the whole calendar month of January, thereby remaining a certain amount of days in the calendar month of January for which the pension will not be granted to the beneficiary in an ad valorem amount. On the other hand, the Government and the CSMI stress that if they receive the same pension, they will be paid in the same amount (by the same amount) in the January instalment and, overall, throughout the calendar year, they will receive the same 12 pension benefits.
71. The Constitutional Court notes that the proposal is not justified, as the second view, held by the Government and the CSSR, must be assessed as appropriate. This is a view of the actual outcome of the contested legislation, which is such that all pensioners receiving the same pension before the indexation receive the same pension regardless of the date of its payment, even after the annual indexation. Simply put, everyone in the same position receives the same amount, and thus (except for the difference between the payout dates but not subject to review) are completely equal. In this situation, the Constitutional Court did not continue to carry out a reasonable test (namely proportionality) because there is no interference at all with fundamental rights and freedoms, whose constitutional acceptability would be more appropriate. The legislation is completely neutral from the point of view of the appellant of the fundamental rights and freedoms referred to, and in no way limits those rights, all the more so not in a way that would be discriminatory for some pensioners or their group.
72. The opposite opinion put forward in the proposal is based on the fact that the appellant extracts certain aspects of the legislation from the overall context. The incorrectness of this is obvious, considering that it is contrary to the real result, namely the amount of the pension that its beneficiaries will actually receive. For the creditor, there is certainly no key information on the period for which the pension is paid to him or similar technical details of the mechanism for which his pension is designed. The key is how much money they will eventually receive. This determines how much goods, services, etc.
73. The proposal makes an argument as to how fair it can be when some authorisations never receive a pension at an ad valorem rate for certain days of the calendar month of January. This reasoning is based on a misunderstanding of the case, because, in a situation where pensions are paid for so-called sliding months and not for calendar months, the right, quite logically, and beyond the appellant's claims on the first part of January, is not to be paid. The appellant's question in its reply (see paragraph 38 above) is therefore misleading, as it incorrectly assumes that the creditor should be given something that does not actually belong to him. In fact, the entitled person gets all that is due to him, no matter how formally declared for any period of time (however specified so-called moving month). For he will always be paid the same financial amount in January, regardless of the actual payment date.
74. Although the appellant refers to the expression of the Government and the CSSR as non-professional, it is her own argument, which is rather embarrassing. The appellant requests that the indexation be granted for all the days of the calendar month of January, but it is not clear why this should be the case, especially if it does not dispute itself that, in view of the absolute amount of the amounts, there is no problem of inequality between the insurance parties. The appellant seeks to demonstrate the alleged inequality by calculating the sum from the so-called moving month to the calendar month, but that is what demonstrates the irrationality of its reasoning, as the amount of pensions per calendar month calculated in this way is not actually received into the account or in cash. It is only a theoretical artificial design without a real impact on the sphere of pensioners. The role of the Constitutional Court is to protect constitutionality from real interference with constitutionally guaranteed fundamental rights and freedoms, not to address problems of an academic nature.
75. The Government's reference to the case-law of the General Courts (i.e. the order of the Constitutional Court sp. zn. I. ÚS 281 / 14) is also correct, when the Supreme Administrative Court has repeatedly found that it should not apply to the Constitutional Court pursuant to Article 95 (2) of the Constitution in the context of the contested legislation in order to assess its infringement of the constitutional order. If, in its reply, the appellant seeks to question the importance of this case law by allowing even the Supreme Administrative Court to have a certain discrepancy, it was only a discrepancy in the dates of the pension payment, which, as has already been said, is not subject to the present review before the Constitutional Court. As the Supreme Administrative Court stated, "the only difference between pensioners with different payout dates is that some achieve an ad valorem amount before others'. The Supreme Administrative Court has explicitly stated in the context that there is no reason for any compensation or change of legislation (see sp. zn. 2 Ads 121 / 2015).
76. CSSZ points out for a very good reason that, if beneficiaries of a pension were to receive additional or other increase in the amount of the pension, as the appellant suggests, it would logically disadvantage those who would not receive or receive less than others. To put it simply, a system where each pensioner receives the same amount of pension as the same amount of pension would change into a system where each person receives a different amount (and thus can actually obtain a different quantity of goods and services) according to the due date, which the appellant itself considers to be arbitrary. The appellant's idea that this new system would be fairer than the current one cannot be described as bizarre.
(77) The appellant submits that the contested legislation constitutes an inequality between the members of the pension scheme. But the opposite is true. It is precisely the changes to the legislation that the appellant calls for, which could bring about a significant change to the worse in these directions, that is to disrupt the current fair system and unjustifiably put at a disadvantage certain members of pension insurance against other participants and potentially lead to such unjustified interference in the constitutionally guaranteed fundamental rights and freedoms which the appellant is complaining of and which could justify the annulment of the rules by the Constitutional Court.
Conclusion
78. For all the above reasons, the Constitutional Court has concluded that the legislation under examination does not infringe Articles 1, 3 (1) of the Charter or the fundamental rights and freedoms guaranteed by Articles 11 (1) and 30 (1) of the Charter. The contested provisions do not give rise to any alleged inequality by the appellant, or even vice versa, if their abolition had led to the adoption of the legislation that the appellant suggests, this could have brought elements of unjustifiably arbitrary, inequality into the pension-raising mechanism and led to the infringement of those rights.
79. Since, on the basis of the appellant's argument against Paragraph 67 (2) of the Pension Insurance Act, the Constitutional Court found that there were no grounds to repeal that provision, its proposal was rejected to that extent under Paragraph 70 (2) of the Law on the Constitutional Court.
80. The appellant did not, in its proposal, overshoot any argument which questioned their constitutionality. The Constitutional Court therefore rejected, to this extent, its proposal pursuant to Article 43 (2) (a) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., as manifestly unfounded.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No. 286 / 2020 Coll., on the application for annulment of § 67 paragraph 2, possibly § 67 and 67a of Act No. 155 / 1995 Coll., on Pension Insurance, as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 26.06.2020 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
Legal Areas:
Social security law
Old age insurance, Old age pension
The regulation text is for informational purposes only.
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