The Constitutional Court found No 40 / 2003 Coll.

Motion denied.

On 5 June 2002 the Constitutional Court received a proposal from the Regional Court in Brno seeking the annulment of Article 78 of Act No. 155 / 1995 Coll., on Pension Insurance, for its contradiction with Article 1 of the Charter of Fundamental Rights and Freedoms ("the Charter ').

In the application for an action for action by M. F. ("the plaintiff '), the applicant referred to a review of the decision of the Czech Social Security Administration of 5.8.1998 held at the Regional Court in Brno under sp. zn. 32 Ca 196 / 98. The appellant concludes, after taking evidence, that Article 78 of the Pension Insurance Act concerns the assessment of the condition of full invalidity of the claimant. However, it considers that that provision is contrary to Article 1 of the Charter.

The appellant points out in the first part of the legislative proposal prior to the issue of the Pension Insurance Act. It states that the provisions of § 25 (3) (c) of Act No. 121 / 1975 Coll., on Social Security, and § 29 (2) (c) of Act No. 100 / 1988 Coll., on Social Security, also allowed citizens to recognise disability for whom the ability to pursue a continuous occupation was maintained, but only for those jobs which were considered to be wholly disproportionate to the former capacity of the citizen and the social importance of his previous employment (so-called State disability). The Implementing Decree No. 128 / 1975 Coll. on Law No. 121 / 1975 Coll. in its provision § 19 (3) then defined completely disproportionate employment as such, which is completely foreign and remote to the achievement, and is not sufficiently exploited by the former abilities of the citizen who had before the long-term deterioration of the health condition, so that, from the point of view of social interests, such disproportionate employment was not required. The concept of disproportionate employment was similarly modified in the provision of § 18 (2) of Decree No. 149 / 1988 Coll. on Law No. 100 / 1988 Coll. In the period from 1.10.1988 to 31.7.1991, the additional condition for recognition of the so-called state disability and the reduction in earnings was at least half as compared to the earnings earned by the citizen in the current employment. In order to implement that legislation, the authorities of the State have issued regulatory instructions which further define what is meant by a highly qualified employment for the recognition of "status invalidity 'and what employment can be considered to be totally disproportionate to them. A highly qualified employment in mining in underground coal or uranium mines, which was included at least in the seventh personal class in the III. Qualifying grade according to the Decree of the Federal Ministry of Steel and Heavy Engineering No. 6 / 1982, registered in the amount of 17 / 1982 Coll. on page 369, later in the sixth degree in accordance with the Government of the Czech Republic Decree No. 43 / 1992 Coll., on the setting of minimum wage tariffs and wage advantages for working in a difficult and healthy working environment and for working in the night, and on the Decree of the Government of the Czech Republic No. 333 / 1993 Coll., on the setting of minimum wage charges and wage advantages for working in a difficult and healthy working environment and working night. It was then considered to be totally disproportionate that the employment carried out on the surface was not included in the third rate of the government's quoted regulation.

In the next part of the proposal, the appellant refers to the Pension Insurance Act, which no longer took over the "status disability 'and amended the claims resulting therefrom in the transitional provision § 78. The appellant points out that that provision protects pensioners who at 31 December 1995 reached at least 10 years of age below their retirement age. In this context, it refers to the explanatory memorandum to the law, which only briefly states that the possibility of retraining and medical aspects in persons who have reached a specified age has been taken into account.

The appellant submits that, when assessing the compliance of the provisions of Section 78 of the Pension Insurance Act with Article 1 of the Charter, he also took into account other provisions of that Act which favour workers in mining over other groups of insured persons. In particular, the provisions of Sections 74 and 76 of this Act fix the retirement age of miners who have worked for a specified period in the so-called preferred working categories for 55 years or 50 years of age (according to Government Decree No. 557 / 1990 Coll., on the exceptional provision of old-age pension to certain miners). The general retirement age on 31 December 1995 was 60 for men and 53 to 57 for women. With effect from 1.1.1996, this age shall be extended for each calendar year for men by 2 months and for women by 4 months, so that for 31 December 2006 men shall be 62 years and for women, depending on the number of children raised, 57 to 61 years. However, increases in retirement age shall not apply to mining workers whose retirement age under the provisions in force before 1.1.1996 was 55 or 50 years. According to the appellant's view, an inequality between miners, on the one hand, and other insurers, on the other hand, is already established, which deepens the effectiveness of the Pension Insurance Act every year. The appellant does not consider this inequality to be a breach of Article 1 of the Charter, since in determining the retirement age for the various groups of insured persons, account has been taken of the complexity of their profession and, in the case of miners, in particular the damage to the health and wear of the organism at work under extreme conditions. However, according to the appellant, the advantages granted to certain groups of miners by the provisions of Section 78 of the Pension Insurance Act infringe the principle of equality in rights under Article 1 of the Charter.

The appellant points out that the benefit of the disability assessment under the provisions in force before 1 January 1996, although other groups of insured persons did not receive the benefit, was maintained under that provision for miners who reached the age of 31 December 1995 which is 10 years and less than their retirement age. The legislature probably wanted to take into account the difficult possibility of working integration of miners who are close to retirement age and who would have had to start working continuously under the regulations in force from 1 January 1996. The appellant considers that such protection is not justified in the current legal situation. It refers to the provisions of Sections 30 and 31 of the Pension Insurance Act, which allow early retirement. Miners who have a pension age of 50 years can thus retire early in their retirement pension under § 30 (3) of that Act at 45 years of age, under § 31 of that Act at 47 years of age. In the case of miners with a 55-year old age, entitlement is then established at 50 or 52 years of age. Any adaptation problems can thus be addressed through very benevolently defined conditions for entitlement to early retirement.

The appellant points out that the protection provided for in Section 78 of the Pension Insurance Act was granted to insured persons who did not lose their ability to pursue a continuous gainful activity. Invalidity pension was granted to them because of the period of view of the social importance of mining employment. The legislature did not grant legal protection to more seriously affected pensioners, those whose invalidity was recognised under § 29 (2) (d) of Act No. 100 / 1988 Coll. They have also changed the conditions for assessing full invalidity. However, the protection of the rights of this group of insured persons is not regulated in any of the transitional provisions of the law, although adaptation to employment is certainly more difficult due to the nature of their disability than in the case of miners aged at least 40 to 45 years who enjoy "status" disability pensions. In the appellant's view, such a significant inequality in the rights of insured persons cannot be allowed only because a group of miners is more successful in promoting their interests and requirements in the legislative process than, for example, organisations physically or mentally affected.

Finally, the appellant states that he is aware that special standards may provide for specific equality criteria for certain fields which do not result from the general principle of equality, since there are no such precise limits for the application of the principle of equality to exclude any discretion. For this reason, the appellant recognises the right of the legislator to lay down certain inequalities in the law, but it must not be unjustified differences in rights, as is the case with Section 78 of the Pension Insurance Act.

According to Section 69 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court requested comments from the Chamber of Deputies and the Senate of the Parliament of the Czech Republic as parties to the proceedings.

The President of the Chamber of Deputies PhDr. Lubomír Zaorálek stated on the proposal that in the new pension scheme introduced by Act 155 / 1995 Coll. full disability is defined as a permanent or long-term loss or decrease of working potential by at least 66%. It is waived for invalidity, which is recognised because the exercise of continuous employment would seriously impair the citizen's health. It also waives the type of disability, where the citizen is able to carry out a continuous job, but only completely disproportionate to his former abilities and the social importance of the previous profession. The new legal definition of invalidity therefore does not allow so-called occupational and status disability. This means that from the effectiveness of the Pension Insurance Act, invalidity pensions are not to be granted to those who change employment as a result of the health condition and do not exceed the limits laid down by the Pension Insurance Act. These aspects also apply to pensions awarded before the application of this Act. It was therefore justified to establish a certain criterion, given the possibility of retraining, for the possibility of withdrawal of an invalidity pension, taking into account medical considerations. A single derogation has been provided for in this principle, which concerns the beneficiaries of invalidity pensions recognised as a result of "status invalidity '. According to this exception contained in Section 78 of the Pension Insurance Act, the full disability pension can be withdrawn only under the conditions laid down by the provisions in force before 1 January 1996. The legislature took into account the age of pensioners who were already receiving a state disability pension at the time of the pension insurance law, thereby having a more difficult opportunity to rejoin the labour force. Such a procedure is fully justified by the specific situation of the" state' disability pensions granted to citizens who have performed the most risky mining work for a specified period. In this respect, it does not constitute a breach of the general principle of equality before the law. The Chamber of Deputies expressed the belief that the legislature had acted in accordance with the legal procedure when negotiating the Pension Insurance Act and that the Act adopted was not contrary to the Constitution of the Czech Republic (hereinafter referred to as the Constitution).

In his comments on the proposal, Mr Petr Pithart recalled that the Pension Insurance Act was approved by the Chamber of Deputies before the Senate was established. He was amended several times after the Senate was established. However, none of its amendments concerned the contested § 78. For this reason, the Senate cannot make any comments based on the discussion of the provision in question in the Senate. It nevertheless considers it necessary to state that the legislation in force prior to the adoption of the Pension Insurance Act did not define the concept of so-called state disability only in relation to mining activities but also in relation to other professions. In this context, it is not reasonable to consider the provision of Section 78 of the Pension Insurance Act as a rule which favours only certain workers in mining over other groups of insured persons. Nor does the general nature of the legislation in question change the fact that the largest number of cases in which the so-called "status disability 'was recognised seem to concern persons injured in the context of the exercise of the mining profession. Rather, it was that in this way the methodology was probably directed and unified in relation to the most frequent cases. In the context of the objection of the inequality between the group of" state pensioners "and categories of much more seriously affected pensioners whose invalidity has been recognised under § 29 (2) (d) of Act No. 100 / 1988 Coll., the Senate stated that in the case of" state disability, "the definition of which was not taken over by the Pension Insurance Act, would undoubtedly, in the vast majority of cases, lose the right to an invalidity pension granted under the previous legislation. Such effects appear to have been found to be too severe in the creation of the law and were therefore mitigated by the adjustment in the transitional provision § 78. In the case of invalidity conditional on the ability to carry out continuous employment only under" completely exceptional conditions', the legal arrangements were maintained and the changes were recognised by the definition of a concept which is understood to be absolutely exceptional conditions. The adoption of the new legislation has not made any changes which could have such consequences for this group of disabled pensioners as in the case of "state pensioners," and therefore no transitional provision may have been considered in the latter case. Therefore, if the proposal sets out as an example of a breach of the constitutional principle of equality the group of beneficiaries of invalidity pensions whose protection by the legislator has not been regulated in any of the transitional provisions, it would be appropriate to demonstrate what specific effects the new legislation had on their claims in relation to claims acquired under previous legislation.

The Constitutional Court also requested comments from the Ministry of Labour and Social Affairs ("MPSV ') pursuant to Paragraph 48 (2) of the Constitutional Court Act.

In its observations on the proposal, MPSV stated that it did not consider the appellant's view that the so-called state disability concerned only miners. It pointed out that this type of disability was not related to a particular profession, starting with Act No. 55 / 1956 Coll., on Social Security. The law cited defined disability in such a way that the employee was also disabled if, for the permanent deterioration of the state of health, he was able to carry out a gainful job, but completely disproportionate to his former abilities and the social importance of the previous job. Point 12 of Directive 73 / 1957 / EEC stated that employment is wholly disproportionate to the former competences and the social importance of the previous employment, provided that the worker is completely foreign and remote from his or her existing employment and that his or her former skills are not sufficiently exploited, so that it is neither practical nor economical for the company to carry out such employment. The definition of so-called state disability was similar in other social security rules. It is known from the application practice under these regulations that the provisions governing "status disability 'have been applied (in some times also as a substitute for non-existent retirement for years) to assess the full disability of performers or certain performers. The case-law also includes applications for different types of qualifications. The point is that the concept of" status disability "was not primarily intended for mining professions, although in practice this professional group became perhaps the most frequent.

In addition, MPSV stressed that the Pension Insurance Act took into account the new definition of disability in the medical perspective and the earlier definition of full disability based on the criterion of inadequacy due to earlier competences. Contrary to other definitions of full disability [e.g. § 29 (2) (d) of Act No. 100 / 1988 Coll. has a reflection in § 39 (1) (b) of the Pension Insurance Act], the so-called state disability was not reflected in the Pension Insurance Act. In view of its specific nature, it was necessary to respond to the present adjustment in the transitional provisions. The MPSV referred to the explanatory memorandum to the Government's draft Pension Insurance Act, where it is stated in Section 78 that it is justified to introduce a certain criterion for the possibility of retraining, taking into account medical considerations when the "status pension 'can be withdrawn. It is laid down that persons who have reached their age of 10 and less than the age of retirement should be treated in accordance with the conditions laid down in the provisions in force before 1 January 1996, taking into account more difficult work. The provisions contained in Section 78 of the Pension Insurance Act are based on the protection of those pensioners for whom, in view of the different definition of full disability and given their age, it would be difficult to fully apply a new legislation based on other principles and could mean the withdrawal of a recognised disability pension in the older age, when it is difficult to find a location on the labour market.

Finally, MPSV confirmed that the contested provision does not concern only miners but all insured persons. It is therefore not reasonable to compare this provision with the provision of Section 76 of the Pension Insurance Act, which concerns only miners. In order to address the situation proposed by the miners, it stated that the legal status of the beneficiary of the early retirement pension is quite different from that of the beneficiary of the full disability pension. They vary by the amount of early retirement pension (this pension may be lower than the invalidity pension), by a future increase in pensions differentiated by the date of retirement (early retirement pension would be less validated), by working activity (excluded for early retirement pension), by receiving compensation for loss of earnings, etc. To force insured persons to apply for early retirement is to make them worse. Furthermore, MPSV pointed out that by cancelling Paragraph 78 after more than two-thirds of the ten-year protective period, inequalities would arise between those insured persons who have already reached the retirement age period and those who have not yet reached that retirement age period.

As a result, MPSV took the view that Article 78 of the Pension Insurance Act is still well founded and therefore does not constitute an inequality in rights under Article 1 of the Charter.

The Constitutional Court first examined, in accordance with Article 68 (2) of the Constitutional Court Act, as amended, whether a law whose provision is assessed from the point of view of constitutionality was adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure. From the observations of the Chamber of Deputies, as well as from the relevant Parliament's press releases and the voting data, the Constitutional Court found that the Chamber of Deputies approved the draft pension scheme at its 32nd meeting of 30 June 1995, when 178 Members and Members were elected 100 and opposed. The law was signed by the President of the Republic. On 4. 8. 1995 he was published in the Collection of Laws in the amount of 41 under the number 155 / 1995 Coll. Thus, the Pension Insurance Act was adopted in a constitutionally prescribed manner and within the limits of the Constitution, in compliance with the rules laid down in Article 39 (1) and (2) of the Constitution.

Paragraph 78 of the Pension Insurance Act, which the appellant seeks to abolish, reads as follows:

"Entitlements of a full invalidity pension granted before 1 January 1996, which reached at least 10 years of age on 31 December 1995, under the conditions laid down in the regulations in force before 1 January 1996, may be withdrawn from the payment of the pension provided for in this Act [Sections 32, 74, 76 and 94 (a)], provided that the full invalidity pension has been granted for the disability caused by the long-term unfavourable health condition for which his beneficiary has been able to carry out a continuous employment but not entirely disproportionate to his former abilities and the social importance of his previous employment. '.

The appellant justifies his proposal to abolish Paragraph 78 of the Pension Insurance Act by contradicting Article 1 of the Charter.

It is therefore for the Constitutional Court to assess whether the conditions laid down in the contested provision are capable of violating the principle of equality in rights, generally expressed in Article 1 of the Charter, according to which people are free and equal in dignity and in rights. The principle of equality in rights referred to in Article 1 of the Charter and specified in Article 3 The Charter should be assessed in the light of Article 26 of the International Covenant on Civil and Political Rights, which provides that all are equal before the law and have the right to equal protection of the law without discrimination, and that any discrimination is to be prohibited by law and that all persons are guaranteed equal and effective protection against discrimination for any reasons such as race, colour, sex, language, religion, political or other beliefs, national or social origin, property and family.

The constitutional principle of equality in rights is one of those fundamental human rights that establish the values of modern democratic societies. The principle of equality is a legally philosophical postulate guaranteed by the prohibition of discrimination in a level of positive law. Equality is not a fixed category, as it undergoes development, which is particularly marked in the area of political and social rights.

The Constitutional Court in a number of its decisions [for example, the findings in the cases referred to in sp. zn. Pl. ÚS 16 / 93 of 24.5.1994 Coll. and published in the Collection of Finals and Resolutions of the Constitutional Court, Volume 1, p. 189 et seq.], sp. zn. Pl. He identified in them the understanding of equality, as expressed by the Constitutional Court of the CSFR in its finding of 8 October 1992 sp. zn. Pl. ÚS 22 / 92 (published in the amount of 96 / 1992 Coll. and published under No 11 of the Reports of the resolutions and findings of the Constitutional Court of the CSFR). The Constitutional Court of the CSFR saw equality as a relative category which requires the removal of unjustified differences. The principle of equality in rights must therefore be understood in such a way that legal discrimination in access to certain rights must not be an expression of pleasure, but does not imply that any right must be granted to anyone. This conclusion is also based on the adaptation of Articles 1 to 4 of the Charter. Article 1 of the Charter, the infringement of which is expressly objected, cannot be interpreted in isolation from other general Articles 2 to 4 of the Charter, but must be understood as a single whole. It is clear from the adaptation of this general provision that the basic protected values listed in Article 3 of the Charter did not devise the Constitution as absolute. The same reflects the provisions of Article 4 of the Charter, which directly foresees the existence of statutory obligations and restrictions, but also Article 2 (3) of the Charter, which foresees the possibility of imposing certain obligations or restrictions.

Also, international human rights instruments and many decisions of international control bodies are based on the fact that not every unequal treatment of different entities can be classified as a breach of the principle of equality, i.e. as unlawful discrimination against one entity compared to another. In order for a breach to occur, several conditions must be met: different entities in the same or comparable situation are treated in a different way without objective and reasonable grounds for different approaches being applied.

At the same time, international instruments and judicates often distinguish between formal equality (i.e. equal treatment of formally equal entities in the same formal cases) and substantive equality (i.e. formally unequal treatment of de facto non-equal entities to compensate for this very de facto inequality in order to help establish real equality between them). The latter case is referred to as so-called positive discrimination where it introduces favourable treatment for entities that are in fact significantly disadvantaged compared to others (preferential treatment).

The means of preferential treatment are not fundamentally contrary to the legal principles of equality and non-discrimination where their application aims to eliminate de facto discrimination between these entities (see, for example, Article 4 (2) and (3) of the Framework Convention on the Protection of National Minorities - see No 96 / 1998 Coll.; General comment of the Committee on Human Rights No 18 on Article 26 of the International Covenant on Civil and Political Rights of 1989, § 10; judgment of the European Court of Human Rights in the Belgian Language Affairs of 1968, § 10). Protocol 12 to the 2000 Convention on the Protection of Human Rights and Fundamental Freedoms, signed by the Czech Republic on 4.11.2000 (not yet ratified), states in the last paragraph of its preamble that "The principle of non-discrimination does not prevent the contracting States from taking measures to promote full and real equality, provided that they are objectively and reasonably justified." The explanatory memorandum to the Protocol cited (Paragraph 16) states: "The fact that certain groups or categories of persons are disadvantaged, or the existence of certain factual inequalities, may justify the adoption of measures granting certain advantages to promote equality, provided that the principle of proportionality is respected. 'The same paragraph adds that Protocol No 12 does not oblige the Contracting States to take or take such preferential measures.

That excursion leads the Constitutional Court to conclude that certain legal arrangements which favour one group or category of persons over others cannot, in itself, be regarded as a breach of the principle of equality. The legislature has some scope to consider whether such preferential treatment will anchor. It must ensure that the favourable approach is based on objective and reasonable grounds (legitimate objective of the legislator) and that there is a relationship of proportionality between that objective and the means of achieving it (legal advantage) (see, for example, the judgments of the European Court of Human Rights in Abdulaziz, Cabales and Balkandali, 1985, § 72; Lithgow, 1986, § 177; Inze, 1987, § 41).

In the area of civil and political rights and freedoms, which immanently characterises the obligation of the State to refrain from intervening in them, there is only a minimal scope for preferential (i.e., by its essence, active) treatment of certain entities in general. On the other hand, in the area of economic, social, cultural and minority rights, in which the State is obliged to take active action to eliminate the speculative aspects of inequality between different groups of companies which are intrinsically socially, culturally, professionally or otherwise stratified, the legislature has a much greater scope for applying its notion of permissible limits to actual inequality within it. It therefore elects preferential treatment much more frequently.

The appellant also took into account the other provisions of the Pension Insurance Act in its allegation of unconstitutionality, which in their joint action favour workers in mining over other groups of insured persons. It referred in particular to the provisions of Sections 74 and 76, which determine the retirement age of the miners, which have already worked for a specified period in the so-called preferred working categories. It does not regard this inequality in itself as a breach of Article 1 of the Charter, as it is aware that the legislator has taken into account the complexity of the mining profession, the damage to their health and the extent of wear and tear of the organism when working in extreme conditions. However, in his view, the other advantages provided by the provision in question at the moment constitute a breach of the principle of equality.

In particular, the Constitutional Court points out that the provisions of Section 78 of the Pension Insurance Act do not only concern the category of miners but also cover other groups of insured persons. Moreover, the Senate and MPSV also pointed out this in their comments. The legislation in force prior to the adoption of the Pension Insurance Act defined the so-called state disability not only in relation to the mining profession, but laid down general criteria also applicable to other professions (cf. § 18 (2) of Decree No. 149 / 1988 Coll., which last defined the term "employment which is wholly disproportionate to the former abilities and social importance of the previous employment '). This is not an option to refute the fact that the largest number of cases of recognition of the so-called" status disability "actually related to persons who were injured in the context of the miner's occupation.

The Constitutional Court, which is bound by the petition and not by its justification, first asked whether the favourable status of workers in mining (or other insured persons, as the case may be, had already met the general criteria for inclusion in the group of so-called state disabled pensioners) under the Pension Insurance Act as compared to other categories of insured persons, was based on objective and reasonable reasons and considerations. This group of insured persons is objectively divided from the whole group of insured persons by the fact that their members have performed for a specified period physically and mentally extremely strenuous, risky and demanding work, often in an extreme working environment (underground in miners or e.g. extreme congestion in the airspace of efficient pilots). The Constitutional Court refers to the explanatory memorandum to the Pension Insurance Act and to the observations of the President of the Chamber of Deputies and MPSV, according to which the reasons for such legislation are particularly unfavourable health effects and, for the category of miners, social effects associated with the exercise of such professions. That aspect can therefore be considered reasonable in the level of constitutionality. Therefore, the Constitutional Court does not consider that a certain advantage for these workers over other categories of insured persons is a sign of the legislator's desire. This is a legitimate attempt by the legislator to compensate for the group's de facto handicaps, based on objective and reasonable reasons and considerations.

The Constitutional Court also questioned whether that legitimate compensatory objective of the legislator was met and implemented in a manner appropriate to that objective. In other words, the Constitutional Court has taken the proportionality test.

The appellant itself considers that the mere advantage of miners under Sections 74 and 76 of the Pension Insurance Act does not constitute an infringement of Article 1 of the Charter as it is proportionate to the specificities of their profession and to the degree of wear and tear of the organism. However, another advantage under the provisions of Paragraph 78 of this Law, which the appellant is challenging by its proposal, seems to him to be disproportionate and unjustified.

In addition, the Constitutional Court, in agreement with MPSV's observations, recalls in particular that the provisions of Section 78 of the Pension Insurance Act do not only include miners but also other categories of insured persons. It is therefore not entirely adequate to compare their favourable position with the provisions of Section 74 with the 76 Pension Insurance Act, which only affects miners.

Paragraph 78 refers to the so-called state disability which was previously governed by Law No 100 / 1988 Coll. in Paragraph 29 (2) (c). He defined it as a long-term unfavourable health condition, as a result of which the citizen is able to carry out a continuous job, but only completely disproportionate to his earlier abilities and the social importance of the previous job. In practice, this type of disability was granted most often to miners working underground coal or uranium mines. The new pension scheme "status disability" as a self-employed institution did not take over and provided that the disability criteria given by the Pension Insurance Act apply from 1.1.1996 onwards to former "status" disabled pensioners. This general rule was broken by the Pension Insurance Act, except as provided for in the contested § 78. It was granted by the legislature to a group of former "state" pensioners who reached the age of at least ten years below their retirement age by 31 December 1995, the advantage of assessing their claims under the regulations in force before the Pension Insurance Act. As the Constitutional Court has previously stated (cf., in particular, the finding of the Pl. ÚS 4 / 95 of 7.6.1995, published under No. 168 / 1995 Coll. and published in the Collection of finds and resolutions of the Constitutional Court, Volume 3, p. 209 et seq.), the legislature's procedure, which maintains the existing rights of a group of persons in force under the new law, is not unusual. It does so, inter alia, to ensure confidence in acquired rights, legal certainty and stability of the legal position. In determining the content of the provisions of Paragraph 78, the legislator undoubtedly followed those interests, bearing in mind, on the other hand, the political circumstance that a democratic society in market conditions no longer has any reason to view "state pensioners" as unreservedly as the previous regime did.

Therefore, workers in mining (and other insured persons who meet the general criteria for "status disability ') do not enjoy benefits in the same volume in the current pension scheme in terms of" status disability' provided by the previous social security scheme. The level of their advantage has decreased significantly. Only the narrow group of former "state" pensioners, which meets the criteria laid down in Section 78 of the Pension Insurance Act, is now benefited. Thus, more favourable treatment applies only to the narrow, oldest age category of former state pensioners, for whom, given the different definition of full disability and their age, it would be difficult to apply fully new legislation based on principles other than the previous one. The full application of the new legislation could mean the withdrawal of a recognised disability pension in the elderly, where, in the light of objective medical considerations as well as the difficulty of retraining and the further job placement, the lowest ability to assert itself in the labour market is. Moreover, the concept of the provision thus chosen in § 78 also respects the concept of "law 'in its material sense, in accordance with which the" law' must be characterised by availability, clarity and predictability. It is intended to allow the persons to whom it relates to to adapt their future behaviour. If the Pension Insurance Act did not contain a transitional provision of Paragraph 78, it would no longer be "predictable 'for that oldest age category of former state pensioners, as these pensioners would no longer be able to adapt their future behaviour effectively, given their" pre-retirement' age and other relevant facts.

The Constitutional Court also points to the temporary nature of the regulation in § 78 and to the rapidly declining range of persons who will be able to exercise their right under it. The effects of this provision in practice will disappear over the next few years. In these circumstances, the current rate of legal advantage granted to that group of persons challenged by Paragraph 78 does not appear to be disproportionate. The Constitutional Court also recognises the constitutional relevance of the argument that the possible abolition of Paragraph 78 would trigger secondary inequality between those insured persons who have reached the retirement age protection period and those who have not yet reached it. This secondary inequality would obviously bear the parameters of discrimination, as it would not be based on a reasonable reason, but only on the random moment of annulment by the Constitutional Court.

The appellant considers the advantage of "state" pensioners to be unjustified and disproportionate even in the wider context, taking into account the provisions of Sections 30 and 31 of the Pension Insurance Act, which allow early retirement. In his view, any problems with the adaptation of older miners can be addressed by the use of an early retirement pension.

However, institutions of old-age and invalidity pensions are quite different categories, which are justified in the pension scheme and do not replace each other. The retirement pension is subject to conditions other than the invalidity pension. The right to an old-age pension is subject to the acquisition of the required period of insurance and to the achievement of the specified age or other legal conditions. On the other hand, for entitlement to an invalidity pension, the health aspect (disability of the insured person) and the required period of insurance (according to previous legislation, the required period of employment) is less than the old-age pension. Nor can the economic aspect be ignored. While the construction of the calculation of the full invalidity pension is the same as that of the calculation of the old-age pension, the amount of the percentage is reduced in the case of an early old-age pension. A later recognised early retirement pension is valorised less than the invalidity pension. In the case of early retirement, work activity is excluded, unlike the invalidity pension. The recognition of early retirement is considered to be a change in the circumstances under Section 202 (1) of the Labour Code which results in a loss of entitlement to compensation for loss of earnings. It follows from those aspects that replacing a full disability pension with an early retirement pension would result in a deterioration of the existing status of the relevant disabled pensioners. Paragraph 78 of the Pension Insurance Act is therefore not consumed or compensated by the provisions of Sections 30 and 31 of this Act.

Nor does a comparison of the preferential status of "state" pensioners with that of a group of disabled insured persons, as the appellant has done, consider the Constitutional Court to be justified. In order to assess whether a legislation is discriminatory or not, the comparable persons must be in the same or analogous position. However, the groups of "state" disabled pensioners and disabled persons are not in such a comparable position, as their disability results from different causes and characteristics of their capacity to pursue a continuous occupation. In particular, however, the Constitutional Court recalls the fundamentally derogatory nature of its powers. In order to improve the status of a group of disabled insured persons, a positive intervention by the legislator would be necessary, rather than by a derogatory intervention by the Constitutional Court. Although the Constitutional Court might sympathise with the appellant's view that a group of disabled persons should enjoy the same advantages as a group of "state" pensioners, it must state that it is only a matter for the legislator to determine whether a group provides more benefits than others if it does not proceed arbitrarily. In a given situation where it did not find a benefit for one category of persons as an unconstitutional one, the Constitutional Court is not entitled to represent the legislator and its lack of willingness to reconstitute another category.

In the light of all the foregoing, the Constitutional Court concludes that the contested provision of Paragraph 78 of the Pension Insurance Act, in itself and in conjunction with the other provisions of that Act, regulates such an advantage for older "state" pensioners, which can be considered legitimate and proportionate. It therefore does not violate the constitutional principle of equality. Therefore, the Constitutional Court rejected the application for annulment of § 78 of Act No. 155 / 1995 Coll., on Pension Insurance, pursuant to § 70 (2) of Law No. 182 / 1993 Coll. rejected.