The Constitutional Court found no 6 / 2025 Coll.
Findings of the Constitutional Court sp. zn.
Valid
6
FIND
The Constitutional Court
of 20 November 2024
sp. zn. Pl. ÚS 16 / 24 concerning the application for annulment of Section 31, paragraph 5, of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State and of certain state bodies and judges and Members of the European Parliament
On behalf of the Republic
On 20 November 2024, the Constitutional Court decided, under point Pl.
as follows:
Paragraph 31 (5) in the text ', in which the periods referred to in paragraph 4' of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State and of certain state bodies and judges and Members of the European Parliament, when it comes to maternity and parental leave, shall be deleted from the date of the declaration of findings in the Collection of Laws and International Treaties.
Reasons
Definition of the case
1. In this finding, the Constitutional Court examines an assessment of the constitutionality of the legislation, according to which, although the period for drawing up maternity and parental leave is included in the relevant period for determining the coefficient determining the amount of the judicial salary, at the same time in the case of judges with a second pay coefficient (between the sixth and eighth years of legal practice), the procedure is made conditional on the third rate of three years of the duties of a judge, in which maternity and parental leave cannot be so counted. For judges who become (starting) judges only after having a practice of more than 8 years, maternity and parental leave have no negative effect on salary growth and are counted without exception. In this context, the Constitutional Court is concerned whether this difference in treatment is contrary to the prohibition of discrimination provided for in Article 3 (1) of the Charter of Fundamental Rights and Freedoms ("the Charter ').
2. Although the Constitutional Court has once again expressed its views on the judicial fees, the case under consideration here is fundamentally different from the group of decisions which the Constitutional Court has dealt with in the past in relation to the judicial salaries and which concerned the interference of the legislator up to the level of remuneration, in particular in the context of the establishment of a salary base and the rules for its calculation. The specific nature of the salary of judges as one of the constitutional guarantees of their independence and of the constitutional requirements resulting therefrom imposed on intervention in the salaries of judges [a total of 19 decisions of the Constitutional Court, from the finding of sp. zn.
3. The amount of the judicial salary shall be determined by the product of the salary base and the salary coefficient. The salary base reflects the economic situation in the company. The salary coefficient shall take into account the duration of the deductible practice, the degree of the court in which the judge performs his duties, and shall also reflect whether the judge is an official, chairman of the Senate or long-term representative of the absent judge.
4. The length of the deductible practice is not reflected in the salary rate linearly but in a step. After reaching a certain number of years of experience, the judge shall proceed to a higher salary rate.
5. In addition to being a judge, as a practice, the period of other legal practice following the acquisition of a university legal education shall be taken into account.
6. There are also certain times when a person has not exercised legal practice, but the legislator also explicitly refers to that period as deductible (also called "replacement periods'). This includes maternity and parental leave.
7. The revised provision provides that the transfer from the second to the third salary rate (in accordance with the order laid down in the law, i.e. for persons from the beginning of the sixth to the end of the eighth year of practice, hereinafter referred to as "the second" and "the third salary rate") is to be carried out as a judge for a period of three years, without counting the spare periods.
8. The Judge of the District Court for Prague 4 Mgr. Monika Ptáček Číhalová ("the applicant") brought an action against the Czech Republic - the District Court for Prague 4, seeking payment of the salary for November and December 2023, namely the amount of CZK 35 520 (CZK 11 840 per month), with the applicant being deprived of the amount paid in the salary for October 2023, which is why the amount sued corresponds to three times CZK 11 840). Due to the contested provision, the period spent drawing maternity and parental leave shall not be counted against the three-year term of office of the Judge who is subject to the procedure of the third rate. It considers that the contested provision is unconstitutional and therefore has a salary equal to the third rate.
9. The District Court for Prague 10 ("the District Court" or "the appellant") shall bring proceedings for this action under point 16 C 49 / 2024. The Circuit Court agreed with the applicant's argument and therefore referred to the Constitutional Court pursuant to Article 95 (2) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution ') and Article 64 (3) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as" the Law on the Constitutional Court') with a proposal to repeal Article 31 (5) of Act No 236 / 1995 Coll., on the salary and other formalities associated with the performance of the functions of representatives of the State Government and of certain state bodies and judges and Members of the European Parliament, as amended, (hereinafter referred to as "Act No 236 / 1995 Coll. ', in which the periods referred to in paragraph 4'.
10. The appellant also requested a preliminary hearing of the case under Article 39 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.
Arguments of the appellant
11. The appellant considers Paragraph 31 (5) of Act No. 236 / 1995 Coll. to be the arbitrator. There is no rational justification for the inequality caused. The limitation of the salary increase pursuant to § 31 (5) of Act No. 236 / 1995 Coll. for the first three years after taking up office as a judge only applies to starting judges who will start after the end of the 5th year and before the beginning of the 9th year of the relevant period. In the period of the first three years after taking up his duties, the legislature appears to suggest that the opening judge should be familiar with the agenda and the work of the court, and therefore does not have to pay a higher salary (conjecture, the explanatory statement stating nothing). However, this exception does not apply to all judges, but only to those who enter between the sixth and the eighth years of legal practice. For this reason, the provision is discriminatory on grounds of age.
12. Furthermore, the contested provision makes no sense under the current legislation. From 2022, a minimum of one year's preparation of a candidate for legal aid must be completed before the candidate for the post of judge is able to apply for the selection procedure after a Master's degree and a professional examination with the previous experience. The other possibilities to replace the annual preparatory practice of the judicial candidate are so time-consuming that Article 31 (5) of Act No. 236 / 1995 Coll. will often no longer affect these judges, as they will have a notable practice over 9 years at the time of taking up office.
13. If Article 31 (5) of Act No. 236 / 1995 Coll. itself may be discriminatory, the "part of the term" which does not include the periods referred to in paragraph 4 "affecting in particular the persons who start a family at" inappropriate "times, since in that provision the basic military service is no longer compulsory, and the exemption from the calculation of the applicable periods of time under Article 31 (4) of Act No. 236 / 1995 Coll., as amended by Act No. 155 / 2000 Coll., in conjunction with Article 31 (5) of Law No. 236 / 1995 Coll., does so (apart from persons having a different excused absence at work not exceeding three months in a calendar year), in particular for parents taking care of children during maternity or parental leave.
14. If a judge takes up his duties at a time when he does not count more than 5 years of experience or when he counts more than 9 years of experience, the condition set out in Section 31 (5) of Act No. 236 / 1995 Coll. does not apply to him at all and therefore the period of maternity and parental leave is counted to the relevant time without further consideration.
15. It is clear from the information provided to the applicant by several county and county courts that women are leaving for maternity and parental leave in justice. Men take parental leave only exceptionally (for the years 2019 to 2023, the applicant was informed of one judge from the District Court and one judge from the Regional Court). The contested provision is so discriminatory against women and parents at the same time.
16. The appellant considers that the contested provision is inconsistent with Articles 1, 3 (1), 28 and 32 (1) of the Charter. Furthermore, the appellant argues that the contested provision is contradictory to European Union law, specifically referring to Directive (EU) 2019 / 1158 of the European Parliament and of the Council on the balance between the working and private life of parents and carers and repealing Council Directive 2010 / 18 / EU and Directive 2006 / 54 / EC of the European Parliament and of the Council on the introduction of the principle of equal opportunities and equal treatment for men and women in the field of employment and occupation.
Comments on the applicant's proposal and reply
17. The Constitutional Court has sent a motion for observations by Parliament as a party to the proceedings (Paragraph 69 (1) of the Law on the Constitutional Court) and the Government and the Ombudsman as potential interveners (Paragraph 69 (2) and (3) of the Law on the Constitutional Court). Both the Government and the Ombudsman joined the proceedings as interveners.
18. The Constitutional Court also requested comments from the Judicial Union of the Czech Republic, hereinafter referred to as the Judicial Union.
Observation of Parliament's chambers
19. In its observations, the Chamber of Deputies summarised the course of discussion and approval of the draft law, which was issued as Act No. 236 / 1995 Coll. The law was passed by the necessary majority of Members of the Chamber of Deputies, signed by the relevant constitutional authorities and duly declared. The Chamber of Deputies acted in the belief that the law adopted was in accordance with constitutional order. However, it is for the Constitutional Court to decide on the constitutionality of the contested provision.
20. In its observations, the Senate summarised the development of the form of the contested provision since 1995. At the time when Act No. 236 / 1995 Coll. was adopted, the Senate has not yet been established and its function has been exercised by the Chamber of Deputies under Article 106 (2) of the Constitution. The Senate had already participated in the adoption of amendments to Acts No. 138 / 1996 Coll., 155 / 2000 Coll. and 626 / 2004 Coll. but these amendments did not affect the substance of the contested provision. The examination of the constitutionality of the contested provisions leaves the Senate to the decision of the Constitutional Court.
Government observations
21. The Government has proposed that the Constitutional Court reject the application for annulment of the contested provision.
22. At the outset, the Government recalled that the mechanism of the salary coefficients has been part of the rule of law since 1991 and the current proposal represents the first case of doubt as to the constitutionality of the contested provision. The Government also pointed out that, in order to fulfil the three-year term of office of a judge, the performance of the duties of a judge on a specified shorter working time is sufficient and does not matter how this shorter working time is arranged in a week. According to the applicant's Government, by taking up her duties as judge, she expressed her consent to the conditions for the performance of the duties of judge and could also adapt her personal and family life to them.
23. The Government, referring to the dates of the Ministry of Justice, stated that on 1 January 2024 there were 3 055 judges in the Czech Republic (of which 1,812 women). 1,841 judges (of which 1,237 women) and 919 judges (of which 496 women) are assigned to regional courts. Maternity and parental leave were taken exclusively by women and exclusively by judges of the county and county courts. The county courts involved 89 judges and five judges in the county courts. In one case, unpaid leave was taken.
24. The Government argued that the contested provision was not contrary to Articles 28 or 32 (1) of the Charter. This argument was based on a rationality test.
25. According to the Government, the contested measure does not constitute an intervention in the very substance of the basic law. This conclusion is supported by the Government by the evaluation carried out by the Constitutional Court in the sp. zn. In this case, the Constitutional Court assessed the constitutionality of a reduction of the remuneration for the performance of the vacant member of the local authorities' council to 40%. According to the Constitutional Court, this measure did not constitute an intervention in the very substance of the fundamental law. The Government then states what amounts were involved in the case of various officials and demonstrates that in the case of judges of district, county and supreme courts, the amounts are lower.
26. The Government also points out that the measure is only temporary in the case of judges, since after three years of the duties of judge, the rate of pay is determined again, including taking all practice into account maternity and parental leave.
27. According to the government, the contested provision follows a legitimate objective. This is to prevent beginners of judges without any professional experience or minimum practice from being entitled to an increase in salary in cases where the period of practice with which the first and second salary coefficients are linked has not been fulfilled by the actual performance of the duties of judge, although otherwise it was the period under Article 31 (4) of Act No. 236 / 1995 Coll., as amended by Act No. 155 / 2000 Coll., that was counted. The reason for this procedure is that only during the first three years of the term of office, as a junior judge, does the judge acquire the skills necessary for the performance of his duties. In the case of a judge who is not effectively a judge during those years, there is no development of these skills and there is therefore no reason for him to be transferred to a higher salary rate. At the same time, the condition of the actual performance of office for three years is, according to the Government, a positive incentive for the actual performance of the duties of judge, which also has a positive impact on the personnel provision of the court, the provision of a representative, personnel planning etc.
28. Nor does the Government agree with the appellant's objection that the contested provision is discriminatory. According to the Government, there is no discrimination between judges or between judges and other public servants.
29. The Government considers it necessary to emphasise that Paragraph 31 (5) of Act No. 236 / 1995 Coll. in its entirety affects not only the recognition of replacement periods pursuant to § 31 (4) of Act No. 236 / 1995 Coll., as amended by Act No. 155 / 2000 Coll., but on a flat basis to other judges exercising their duties without greater experience in the performance of the duties of judge. This provision also concerns possible so-called lateral entry into justice (appointment of new judges who had originally engaged in another legal profession and who do not have a notable practice of more than 8 years). If the proposal is now granted, there will be a paradoxical situation. For persons who have entered the judiciary after the previous performance of a lawyer or other legal profession and their overall legal practice is less than 8 years, Paragraph 31 (5) of Act No. 236 / 1995 Coll. applies and will have to perform the duties of judge for a period of three years in order to advance to the next salary coefficient. On the other hand, persons in a similar position to the applicants will be able to apply the period provided for in Article 31 (4) of Act No. 236 / 1995 Coll. as amended by Act No. 155 / 2000 Coll., and will proceed to a further salary coefficient without effectively exercising the duties of judge for a longer period.
(30) Although, on termination of maternity or parental leave, another public servant may proceed to the next step without the actual performance of his duties for three years, this procedure has a less significant impact on the total amount of the staff member's salary than in the case of judges. This is due to different pay tables, which make public employees' salary increase more linearly, in the order of hundreds of crowns, whereas in the case of the judge's salary it is a step increase in the order of thousands of crowns. At the same time, an increase in other components of a public employee's salary (personal allowance, irregular remuneration, etc.) cannot be expected immediately after returning from maternity or parental leave, as these are often linked to the fulfilment of certain performance or other career milestones (e.g. following the service evaluation of a civil servant). Therefore, according to the Government, the procedure in the context of the judicial rates and grades of other public servants cannot be considered to be entirely comparable. Thus, the different treatment between judges and other public servants does not constitute unfounded discrimination, but legitimate differential treatment on objective grounds.
31. As regards the appellant's arguments that the contested provision may be contrary to Union law, the Government points out that the Court of Justice of the European Union and not the proceedings before the Constitutional Court serve to resolve these doubts.
The Ombudsman's observations
32. The Ombudsman stated that he has not yet dealt with complaints in his practice which would object to discrimination on the grounds of the application of the provision under review.
33. The provisions affect persons who, between the 6th and the eighth year of the law, do not perform the duties of judge for a certain period of time. The Ombudsman considers that it is most often persons who do not perform the duties of judge on grounds of maternity or parental leave.
34. Other cases affected by the provisions under review concern the exercise of basic military service, long-term illness and the treatment of a member of the family. In order to perform the basic military service, the Ombudsman stated that there was no need to deal with it as the basic military service had been abolished since 2003. For other reasons, the Ombudsman stated that they would be more likely to relate to persons who will have more than one year of notable experience and that the provisions under review would not fall on them.
35. Persons taking maternity or parental leave are women in the Czech Republic in the vast majority of cases. At the same time, they can be expected to be typically between the ages of 30 and 35. This interval is limited from the bottom by the age required for the appointment of a judge, the upper limit being biological restrictions, because according to a scientific study, to which the Ombudsman referred, there is a significantly less chance in older age that a woman can conceive and carry a healthy child.
36. This may be so called cross-section discrimination, as the revised provision affects a group of persons who are also characterised by age, gender and parenthood.
37. The Ombudsman applied a discrimination test to the situation described. He considered that individuals are treated differently for prohibited reasons than comparable individuals. It emerged from the fact that judges in a disadvantaged group are prevented from taking into account "fictitious' periods for the purposes of determining the pay rate, whereas other judges have this option.
38. According to the Ombudsman, the revised measure pursues a legitimate objective. This objective is linked to the public interest in the exercise of the extremely responsible role of judges by persons with adequate professional experience. At the same time, it is related to the interest in having judges remunerated in the light of the practice and expertise achieved. The Ombudsman pointed out that the Court considered this interest to be legitimate in its case-law.
39. However, this legitimate objective is achieved by the legislature, according to the Ombudsman, in a way that contains a number of illogicalities, which raises doubts as to whether reasonable and proportionate means have been chosen.
40. The Ombudsman's main illogical nature is that the provisions under review fall not on all the starting judges, but only on those who have had one of the possible career trips, and because of that, the period of fresh time after taking up their duties as judges in their case falls between the 6th and 9th years of deductible practice. Following the amendment of Act 218 / 2021 Coll., amending Act No. 6 / 2002 Coll., on Courts, Judges, Addresses and Government Administration of the Courts, and amending some other laws (Law on Courts and Judges), as amended, and other related laws, this is all the more so, according to the Ombudsman, as the sufficient expertise and practice of the future judge is to guarantee the annual training of the candidate for justice.
41. According to the Ombudsman, the revised provision is contradictory to Article 1 of the Charter, or to Article 3 (1) in conjunction with Article 28 of the Charter, as the case may be. Therefore, the Ombudsman proposed to repeal the revised provision.
Observations of the Judicial Union
42. The Judicial Union was in agreement with the appellant's arguments in relation to Article 31 (5) of Act No. 236 / 1995 Coll. as a whole. The Judicial Union considers it legitimate to make the rate increase subject to the actual performance of the duties of a judge, but the provision cited does so solely in respect of judges who have entered the office with a counted period of practice from the beginning of 6 to the end of the 8 year. The length of the actual performance of the duties of a Judge shall no longer be determined in order to be included in the higher salary rate, nor in the case of further action between higher rates.
43. The provision cited thus brings inequality between the group of judges concerned and the other judges. If someone takes the place of a judge between the 6th and 8th years of his overall practice, his advance to the higher salary rate will be conditional on the three-year term of office of a judge. However, if the same person takes up the duties of judge on the first day of the ninth year of his overall practice, he shall be included directly in the higher salary coefficient, although he has never performed the duties of judge. In the extreme case, different treatment may last almost three years. This will happen if one person takes the position of judge on the last day of the 8th year of his general practice and another person on the first day of the 9th year of his overall practice. The first person will then need a three-year term of office of judge to proceed to a salary rate in which the second person has been a judge since the beginning of his duties.
44. The less logical is then the contested provision in the part concerning the credit of maternity and parental leave. Where a person draws maternity or parental leave before taking up his duties as a judge, that period shall be fully taken into account in determining the pay coefficient. If it reaches nine years of experience, it will proceed directly to the 3rd salary coefficient, although it has not yet performed its duties as judge. On the other hand, if someone takes the position of judge between the 6th and 8th years of his general practice and only then takes maternity or parental leave, not only does he need three years of legal capacity to proceed to the 3rd salary rate, he will not be entitled to maternity or parental leave by these three years.
45. Taking into account the minimum age for appointment by a judge, the normal duration of the study, the necessary practice for carrying out a judicial or other professional examination, it is clear that the provisions under examination affect the starting judge, but not all. It depends on how quickly or slowly they succeed in choosing and taking on the duties of judge. According to the Judicial Union, there is no reason for judges who, after taking up their duties, have received "non-judicial '(lawyer, assistant, etc.) practice between the beginning of the sixth year and the end of the eighth year of their overall practice other than for judges who, in the same period, have already obtained the exercise of their duties as judges. In addition, the provision quoted may have the effect, once again rather paradoxically, that the candidate for the post of judge in the period between the 6th and 8th years of their practice motivates the entry into office of the judge to delay until the beginning of the 9th year of their practice, for example even in the post-appointment phase and the composition of the promise.
46. The Judicial Union therefore proposed to comply with the application for annulment of the contested provision.
Replication of the applicant
47. The Constitutional Court sent observations to the appellant and gave him the opportunity to reply. The appellant took advantage of this possibility. He agreed with the observations of the Ombudsman and the Judicial Union that the contested provision was contradictory to the constitutional order. In response to the Government's observations, the appellant noted that the so-called "side entry 'is an exception, since most judges gain practice exclusively in justice.
Abandonment of oral proceedings
48. The Constitutional Court concluded that further clarification of the case could not be expected from oral proceedings and that there was no need or need for evidence. Therefore, pursuant to Article 44 of the Law on the Constitutional Court, it decided without a regulation of oral proceedings.
Text of the contested provision
49. The subject of the review is Article 31 (5) of Act No. 236 / 1995 Coll. within the meaning of the text "to which the periods referred to in paragraph 4 are not counted."
50. In order to facilitate understanding of the context of the Constitutional Court, the full wording of Section 31 of Act No. 236 / 1995 Coll. includes the title:
Method for determining the rate
(1) Until the period laid down in Paragraph 28 (1) for the determination of the salary coefficient (hereinafter referred to as the relevant period), the amount of the allowance shall be:
(a) the duration of the duties of judicial candidate and candidate;
(b) the term of office of the Judge;
(c) the time established by the judge for other legal practice after obtaining legal higher education.
(2) The period during which the Judge was unable to perform this function for the reasons set out in the Special Act, 6 shall be considered as the period referred to in paragraph 1 (b).
(3) For reasons of special consideration, the Minister of Justice may take account of periods other than those referred to in paragraphs 1 and 2.
(4) The time shall also be taken into account for the relevant time period.
(a) the exercise of military basic (substitute) service and civil service to the extent provided for by the special law for the exercise of military basic (substitute) service;
(b) maternity and parental leave or permanent care of a child or children to an extent equivalent to the length of maternity and parental leave in force at the time of such care under special rules, 7 if the judge did not at the same time prepare for the profession in a daily study8, or the period of personal care for a long-term disabled minor who required exceptional care, unless it was placed in an institution for such children, but up to a maximum of six years; and
(c) a period of time not exceeding three months in the calendar year for another excused absence at work.
(5) In assessing the relevant period for the increase in the rate of pay of the Judge of the District Court from 1.01 to 1.14, the Regional Court from 1.09 to 1.26 and the Supreme Court from 1.17 to 1.33, the Court of First Instance may be treated in accordance with the previous provisions only on condition that the Judge has actually served as Judge for at least three years, up to which the periods referred to in paragraph 4 are not counted. Pending the fulfilment of the condition laid down in the first sentence, the Court of Justice of the District Court shall have the salary of a salary of 1,01, a regional court of 1,09 and a supreme court of 1,17. after its completion, the relevant period shall be determined in accordance with the procedure laid down in paragraphs 1 to 4.
(6) The Judges shall be counted against the date of application of this law by the relevant time period for all periods that have been counted under the previous provisions. ';
and the related part of § 28 paragraph 1 of Act No. 236 / 1995 Coll., as amended by Act No. 626 / 2004 Coll., including the title:
Salary
(1) The judge shall be entitled to a salary determined on the basis of a salary rate to be determined according to the number of years counted for the judge
| okresního soudu | krajského soudu | vrchního soudu | |
|---|---|---|---|
| 0,88 | 0,96 | 1,05 | do ukončení 5.□roku |
| 1,01 | 1,09 | 1,17 | od počátku 6. roku |
| 1,14 | 1,26 | 1,33 | od počátku 9. roku |
| 1,22 | 1,35 | 1,47 | od počátku 12. roku |
... "
Proceedings before the Constitutional Court
51. The Constitutional Court first assessed whether the procedural conditions of the proceedings were fulfilled.
52. According to Article 64 (3) of the Law on the Constitutional Court, the court is entitled to apply for annulment of the law or its individual provisions in the context of its decision-making activities pursuant to Article 95 (2) of the Constitution. According to that provision, the court submits the case to the Constitutional Court if it concludes that the law to be applied in the resolution of the case is contrary to the constitutional order.
53. The Constitutional Court has consistently interpreted this provision in such a way that the court is entitled to propose the annulment of such a law or provision, the application of which is immediate and unavoidable in the present case. The law (its provision) must prevent the constitutional outcome of proceedings. Therefore, it is not sufficient to apply the hypothetical possibility or other broader context of the law (its provision) to a case dealt with by the General Court [Order sp. zn. Pl. Pl. ÚS 39 / 2000 of 23 October 2000 (U 39 / 20 SbNU 353) and the findings of sp. zn. Pl. Pl. ÚS 3 / 06 of 6 March 2007 (N 41 / 44 SbNU 517; 149 / 2007 Sb.), point 26; sp. zn. Pl. Pl. ÚS. Pl. ÚS. Pl.
54. The Constitutional Court, in its Resolution sp. zn. Pl. Pl. ÚS 12 / 08 of 2 December 2008 (U 12 / 51 SbNU 823), stated that, if the General Court contends in the application for annulment of the law, that the contested provision (apart from contrary to the constitutional order) is also contrary to European Union law, regardless of whether it puts forward arguments for this conclusion, it must first decide, in such a situation, on the basis of the requirements laid down in the judgment of the Court of Justice of Simmenthal II (Amministrazione delle Finanze dello Stato Simmenthal SpA of 9 March 1978, 106 / 77) on the inapplicability of the contested provision to its law of the European Union. "The Constitutional Court leaves it entirely up to the general court to consider whether it will primarily examine the infringement of the legal provision to be applied, with the law of the European Communities, or focus on examining the violation of the constitutional order of the Czech Republic." (paragraph 34 of the resolution cited). However, if it focuses primarily on examining compliance with European Union law and contends before the Constitutional Court that the provisions under examination contravene it, it must draw the consequences of this conviction in accordance with the requirements of the Court of Justice case-law. In such a case, the proposing court does not fulfil the conditions for active legitimacy to submit an application for annulment of the law or its individual provision pursuant to Article 95 (2) of the Constitution or Article 64 (3) of the Law on the Constitutional Court, and its application must be rejected by the Constitutional Court as an application made by someone manifestly unauthorized.
55. However, this legal opinion cannot be applied mechanically in such a way that any reference to the law of the European Union contained in the proposal necessarily leads to the conclusion that the referring court is an unjustified appellant.
56. In the present case, the appellant based its argument primarily on the allegation of a violation of the contested provision with the constitutional order. The idea that the contested provision could also be contrary to European Union law is merely referred to as a support argument. There is therefore no reason for the Constitutional Court not to carry out a review.
57. At the same time, the district court in the now suspended procedure decides whether the applicant is entitled to a supplement to the salary for November and December 2023. The amount of the judge's salary depends on the rate of pay. In order to determine the payment coefficient of the applicant, given the length of the applicant's practice, it is decisive whether, after being appointed by the judge, the period of time spent on maternity and parental leave is to be counted against the period of three years of the duties of the judge required by law for the procedure of the third coefficient. According to the contested provision, that period is not to be taken into account when proceeding from the second to the third rate. The application of this provision is therefore immediate and unavoidable and prevents the outcome which the District Court considers to be constitutionally conformal.
58. Although the Circuit Court does not propose to abolish the word "actually" contained in Article 31 (5) of Act No. 236 / 1995 Coll., if the application of the Circuit Court is complied with and the passage "in which the periods referred to in paragraph 4 are not counted," it will be necessary to interpret the remainder of § 31 (5) of Act No. 236 / 1995 Coll. in such a way that replacement periods must be considered as the actual performance of the judicial function.
59. The Circuit Court is therefore actively authorised to file an application for annulment of Article 31 (5) of Act No. 236 / 1995 Coll. in words "in which the periods referred to in paragraph 4 are not counted." At the same time, however, for the purposes of the procedure before the appellant, the contested provision as a whole should not exceptionally be abolished. From the periods referred to in § 31 (4) of Act No. 236 / 1995 Coll., as amended by Act No. 155 / 2000 Coll., the applicant refers exclusively to maternity and parental leave. It is therefore not necessary to examine the constitutionality of the exclusion of other periods calculated in Article 31 (4) of Act No. 236 / 1995 Coll., as amended by Act No. 155 / 2000 Coll. For this reason, it is sufficient, in a particular case, to comply with the proposal only with a range statement, i.e. only with regard to the counting of maternity and parental leave, and not with regard to other spare periods.
Review of the procedure for the adoption of the contested provision
60. The Constitutional Court also examined whether the contested provision was adopted within the limits of the constitutional competence and the constitutionally prescribed manner (Paragraph 68 (2) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.).
61. Act No. 236 / 1995 Coll. was adopted by Parliament. At the time of the adoption of the Act, the Senate has not yet been established, so the Chamber of Deputies has decided exclusively on the draft law under Article 106 (2) of the Constitution. However, this was in accordance with the constitutional order, and it should therefore be concluded that the contested provision was adopted within the limits of the Constitution laid down for competence.
62. The contested provision is part of the text of Act No. 236 / 1995 Coll. since its adoption. During the years, the text of § 31 (5) of Act No. 236 / 1995 Coll., of which the contested provision is part, and of which the text of § 31 (4) of the same law referred to were amended. However, these amendments did not concern the substance of the contested provision. For persons in the same position as the applicant, the contested provision would have been applied in the same way throughout its current effectiveness. It would therefore mean that the period of maternity and parental leave would not be taken into account when assessing the length of the term of office of the judge needed to proceed to a salary coefficient for judges with nine or more years of notable experience.
63. The bill was tabled as a proposal by a group of Members in the first parliamentary term of the Chamber of Deputies. It was discussed as the 1820 House Press. The bill was passed at the 34th session of the Chamber of Deputies on 26 September 1995. Of the 139 Members present there were 114 in favour, 12 against. The approved Act was subsequently signed by the President of the Republic and the Prime Minister and was published in the Collection of Laws on 26 October 1995.
64. The appellant has not put forward any arguments concerning Parliament's power to adopt a law containing the contested provision or procedure.
65. The Constitutional Court concludes that the contested provision was adopted within the limits of the Constitution laid down by competence and in a constitutional manner.
Review of the content of the contested provision
66. The Constitutional Court did not address the objection of the appellant of the parties to the contested provision to European Union law. It is for the Constitutional Court, as a judicial authority for the protection of constitutionality, to "only" assess whether the contested provision is contrary to the constitutional order (see paragraphs 54 to 56 above).
67. On the basis of the arguments put forward by the appellant and the other observations received, two basic arguments are put forward for which the contested provision could be contradictory to the constitutional order. The contested provision may be discriminatory and may also infringe Article 28 of the Charter. The Constitutional Court first considers that the contested provision is contradictory to the prohibition of discrimination. If it concludes that there is such a contradiction, it is no longer necessary to examine the infringement of Article 28 of the Charter.
68. Equality in Rights is a category relative, not absolute (see the finding of the Constitutional Court of the Czech and Slovak Federal Republic sp. zn. Pl. ÚS 22 / 92 of 8 October 1992, published under No. 11 in the Collection of Resolutions and Finances of the Constitutional Court of the Czech and Slovak Federal Republic). Consideration in the equality category may only be given in a relationship between at least two entities in the same or comparable position. While it is generally not difficult to determine whether the legislation treats two situations differently or equally, the key step for applying the general principle of equality is to determine whether the two situations with which the law treats them differently are indeed comparable, i.e. whether they are relevant. This requires an analysis based on the criterion of relevance [finding sp. zn.
69. In general, the Constitutional Court has accepted a statutory inequality, but only if it can be justified on the basis of constitutionally acceptable considerations. It is unacceptable to create an inequality arbitrarily (non-accesoric inequality) or to construct an inequality in such a way as to constitute an intervention in one of the fundamental rights (non-accesoric inequality) [cf., the findings of sp. zn.
70. The distinction between accessorial and non-accessorial equality is of particular importance in the application of the Convention on the Protection of Human Rights and Fundamental Freedoms ("the Convention"). Prohibition of discrimination enshrined in Article 14 The Convention is merely an accesorial equality, since it guarantees equal treatment in the use of the rights and freedoms conferred by the Convention. Non-accesorial equality is guaranteed by Article 1 of Protocol 12 to the Convention, which has not been ratified by the Czech Republic. Therefore, when applying the Convention, the European Court of Human Rights is crucial whether it is an Accesory or Non-Accesory Equality, since failure to fulfil the conditions for the application of Accesory Equality in Article 14 of the Convention results in the rejection of a complaint as inadmissible under Article 35 (3) (a) of the Convention on the Incompatibility of a Complaints with Article 14 of the Ratione materiae (cf. Decision of the Grand Chamber of the European Court of Human Rights in the case of Gratzinger and Gratzinger v Czech Republic, complaint No 39798 / 98, paragraphs 68-77).
71. Under the conditions of the Czech legal order, the constitutional right to equal treatment is guaranteed, on the one hand, in Article 1 of the Charter as a separate fundamental right, which can be claimed directly and without further action (non-accesoric equality) and, on the other hand, as a conditional fundamental right, which can only be sought pursuant to Article 3 (1) of the Charter in conjunction with the alleged interference with another fundamental right or freedom protected by the Charter.
72. As already explained in the finding in sp. zn. The Charter also provides for the constitutional protection of equality in all rights, or the general prohibition of arbitrarily provided for in Article 1 of the Charter, and the distinction itself between accesorial or non-accesorial equality in legal proceedings before the Constitutional Court is not decisive. Any possible objections relied on by Article 3 (1) The Charter is always "normally" covered by Article 1 of the Charter, whose scope is wider by nature. Therefore, the intensity of the constitutional review is not primarily dependent on the fact that unequal treatment takes place in relation to another constitutionally guaranteed law (accesoratively) or not (non-accesoratively). In particular, the reason for the different treatment, namely the distinctive character established, and at the same time the specific right or the property in respect of which it is treated differently is key. This must be in accordance with the requirements of the Constitutional Court on the justification of the legitimacy (justification) of the different treatment (paragraphs 50 to 52; sp. zn.
73. In examining whether the right to equal treatment has been infringed because of the distinguishing criteria applied in the legislation, it is necessary to assess whether:
1. are comparable individuals or groups;
2. they are treated differently and for what reason;
3. Different treatment for individuals or groups is to be imposed on them (by imposing a burden or by denying good);
4. This different treatment is justified, i.e.
(a) pursue a legitimate objective; and
(b) is adequate.
74. The intensification of the review of the adequacy of the different treatment [Step 4b)] will depend mainly on the reason for the different treatment being applied and on the specific right or good being being affected by the different treatment. In the case of different treatment for so-called suspicious classification, or for reasons relating to the personal characteristics of an individual having a close relationship with the protection of human dignity, very strict claims should be made to justify different treatment. On the contrary, if different treatment (distinguishing character) is a criterion normally and strictly applied in a particular field of legal regulation (e.g. the amount or structure of income in tax legislation), even if different treatment would affect another fundamental right, the intensity of the constitutional review will be low (the finding of the PSC 15 / 17, paragraph 52).
75. The Constitutional Court is based on the fact that the judge is also entitled to a fair remuneration for the work carried out, as enshrined in Article 28 of the Charter [Findings sp. zn. Therefore, the contested provision constitutes a distinction as regards the right to a fair remuneration for work under Article 28 of the Charter.
76. It is therefore necessary to further assess whether the different treatment is due to a constitutionally qualified prohibited ground (Article 3 (1) of the Charter).
77. The determination of a comparable individual with whom the applicant and the other persons affected by the contested provision are to be compared is crucial for the assessment. In this respect, the Ombudsman's statement that the possibility of assessing replacement time as a performance of judicial practice is (not) decisive.
78. The legislature has decided that, for the purposes of determining the salary coefficient, the period of time is to be looked at in the same way as the duties of a judge. The contested provision subsequently partially relativised this decision by designating that judges who have a legal practice of less than (completed) eight years must, for the purposes of the procedure until the third (possibly fourth - see below) pay coefficient, actually perform the duties of judge for at least three years, without taking into account the period of that three-year period. The persons who have obtained the practice of performing the duties of judge are comparable to those who have obtained the period of replacement, since the rule contained in Section 31 (4) of Act No. 236 / 1995 Coll., as amended by Act No. 155 / 2000 Coll., generally applies, that the period of replacement is considered as practice.
79. At the time the contested provision was adopted, the minimum age for appointment was 25 years. He who, after graduating from a master's degree, began to work in the judiciary and reached the shortest possible time to be appointed judge, was able to perform the duties of judge for three years and to spend two years drawing maternity and parental leave and, after reaching 8 years of deductible practice, to proceed to the third salary coefficient.
80. Following the introduction of a minimum age of 30 years for appointment by a judge, the contested provision has a radically different effect. The practice acquired before the age of 30 years is included in the overall practice, but does not contribute to the fulfilment of the condition of § 31 (5) of Act No. 236 / 1995 Coll., which requires the three-year performance of the judicial function for the procedure until the third salary coefficient. Thus, the provisions typically affect women who have chosen to pursue a career in justice, have not postponed maternity to a higher age and, within three years of being appointed judge, have taken maternity and parental leave. They are therefore women who have taken up the role of judge, whose overall legal practice (including any spare time) has not reached the age of 8 years and who took maternity or parental leave within three years of being appointed judge. These women will typically be between the ages of 30 and 33.
81. Persons treated less favourably by the fact that maternity and parental leave cannot be exercised as part of the three-year term of office of the judge required to proceed to the third salary coefficient, since they already received it as judges before the ninth year of their practice (usually between the sixth and eighth but exceptionally even in the fifth year) are typically women. Only women can take maternity leave, and men can take parental leave, but almost exclusively women (not only) in justice, as shown by the data presented by the government. Persons treated less favourably are defined jointly by the characteristics of age, gender and parenthood. The sex criterion is explicitly mentioned in Article 3 (1) of the Charter. Part of the concept of another position in the same article is also a characteristic of age [e.g. the finding of Sp. II. ÚS 1609 / 08 of 30 April 2009 (N 105 / 53 SbNU 313)]. Different treatment for reasons of parenthood is typically regarded as discrimination on grounds of sex [cf. § 2 (4) of Act No. 198 / 2009 Coll., on equal treatment and on legal means of protection against discrimination and on the amendment of certain laws (anti-discrimination law)].
82. The explanatory memorandum to Act No. 236 / 1995 Coll. does not specify the objective pursued by the contested provision. However, it may be borne in mind by the expression of the Government, the Ombudsman and the Judicial Union that this aim is to ensure that starting judges (i.e. those who have been newly appointed), before they are entitled to a higher salary, actually perform the duties of judge for a certain period of time and that they are fully acquainted with the activities carried out in court (in other words, they cease to be starting judges). Such an objective can be considered legitimate.
83. The contested provision concerns another fundamental right (right to a fair remuneration for work under Article 28 of the Charter). The right to a fair remuneration for the work carried out shall be one of the rights calculated in Article 41 (1) of the Charter. That provision, according to which the rights referred to in Articles 26, 27 (4), 28 to 31, 32 (1) and (3), 33 and 35 of the Charter may be invoked only within the limits of the laws which they implement, expresses the opinion of the legislator that the regulation of social rights is a legitimate subject of political aegis (i.e. primarily in the hands of the legislator) and is only secondary to and to a limited extent can be regarded as a question of judicial [finding sp. zn. In the present case, however, it outweighs the fact that different treatment is due to a "suspicious cause" of sex (including parenthood) and, where appropriate, age. It is therefore appropriate to measure the contested provision with a proportionality test.
84. The proportionality test follows three criteria. The first is the assessment of eligibility to meet the legitimate objective pursued (suitability criterion). It is established whether a specific measure can achieve the intended objective of protecting a non-limited basic right or public good. Another criterion is the assessment of the necessity of the contested legislation, where it is examined whether the choice of appropriate means has been made in a way that is most favourable to the limited basic law. The last to assess proportionality (in a narrower sense), i.e. whether the injury to the fundamental right is disproportionate in relation to the legitimate objective pursued. The measures limiting fundamental rights and freedoms must not, by their negative consequences, exceed the positives that bring a conflicting interest in their adoption (point 41 of the many decisions, for example, the find of the sp. zn.
85. The contested provision fulfils the criterion of suitability, as it may contribute to the legitimate objective of ensuring that the beginning judges, before they are entitled to a higher salary (moving up to a higher salary rate), actually perform the duties of judge for a certain period of time and are fully acquainted with the activities carried out in the court.
86. It acts in such a way that, when fulfilling the conditions for action up to the third weighting, the Judges require that they actually perform a function for at least three years in order to reach the third rate, which is not possible to perform by replacement periods.
87. However, the contested provision only has this effect on judges whose total period of deductible practice has not been 8 years. He who starts as a judge from the ninth year of practice does not face such a restriction and immediately after being appointed by a judge is included in the third salary coefficient (cf. CAT, Jiří. 3.1.5 Restrictions on procedure from second to third "step." In: CAT, George. The law on courts and judges. Issue 1. Praha: C. H. Beck, 2015, p. 418).
88. These can be demonstrated on the situation of two women who have the same career path (even both in court), only partly differ in the order of each stage. They both graduate from law school, one at 24, the other at 26. They both get three years' experience as an assistant judge and pass a judicial exam. Subsequently, both of them will carry out the annual practice of a judicial candidate. The first woman is only 28 years old after the end of the year's practice of a judicial candidate, therefore she is still two years as an assistant judge, then, after 30 years of experience (and six years of experience) she is appointed judge and after one year of the duties of judge she will take two years for maternity and then parental leave. The second woman is subsequently appointed judge after her annual practice as she has already reached the age of 30 (she has four years of experience). After three years of office, the judge shall take maternity and parental leave for a total of two years.
89. Both women follow the same trajectory after graduation. They both have 9 years of experience, two of which are spare periods. However, the two-year age difference at the time of graduating from a master's degree will result in a second woman becoming a judge after a shorter practice, so she will sooner start to fulfil the condition of a three-year actual performance of the duties of judge and the eighth year of general practice, which she spends drawing maternity and parental leave, is fully included, although it is a replacement period. Already after that one year (considering the possibility that the other woman would spend only one year drawing maternity and parental leave, thus completing eight years of deductible practice) would reach a third pay coefficient.
90. On the other hand, the first woman who is younger (but at the same time at the age in which students usually study law) becomes a judge from the point of view of the length of the practice later. It shall be subject to the contested provision in such a way that two years' spare time shall not be taken into account for the performance of the three-year term of office of the Judge. Therefore, for a step up to the third rate of pay, a further two years must be held as a judge, thus remaining two years longer in the second rate of pay and reaching a step up to the higher rate of pay two years later than the second woman, then moving straight to the fourth rate, since after two years of judgment after returning from parental leave, she will start to have a 12 year experience. If maternity and parental leave were to take only a year, it would also be two years later than the second female on maternity and parental leave. The condition of three years of judgment will be fulfilled after two years of judgment after returning from maternity and parental leave, the next year will be the eleventh year of her practice and will reach the third coefficient.
91. Career trajectory from the point of view when women begin to receive a salary with a higher than the second coefficient can be quantified for the first woman on a two-year maternity and parental leave of 6-1-2-2 and for the year 6-11-2, for the second woman 4- 3-2 and 4- 3-1 respectively.
92. The third hypothetical woman, who graduated from law school at 24 years of age, subsequently performed a three-year law degree as a lawyer, passed a bar exam and performed a five-year law degree as a lawyer, in accordance with § 117 (2) of Act No. 6 / 2002 Coll., on courts, judges, sitting and administration of courts and on the amendment of certain other laws (Law on Courts and Courts), as amended by Act No. 218 / 2021 Coll., does not have to perform the annual practice of a judicial candidate and may be appointed as a judge. After its appointment, it will have 8 years of deductible experience and will be included directly in the third salary coefficient. After a year, she's going on two years of maternity and parental leave. On her return, at the beginning of the 12th year of practice, including maternity and parental leave, which fell within the first three years of her term of office, she will be included (like both women) in the fourth coefficient, although she will not yet have any experience of judging and - from the point of view of actual performance - she will be a starting judge. Paragraph 31 (5) of Act No. 236 / 1995 Coll. will not affect it at all.
93. Of the three women who started at the same starting line at the end of a university, one will reach the third pay rate after 8 years of experience, although with zero experience in the performance of a judge, one at 9 years of experience in the performance of a judge's duties (respectively in the annual maternity and parental duties also after 8 years, but with three years of experience in the performance of a judge's duties) and one at the third step in the procedure, and after 11 years of experience in the performance of a judge's duties will reach the fourth pay coefficient, for the previous three years of the performance of a judge will have a second pay rate. If the maternity and parental leave is taken only a year, it will reach the third salary coefficient after 10 years with three years of experience in the duties of judge.
94. The legal objective pursued by the contested provision has not even been fulfilled at all in the case of the third hypothetical woman (who worked in the advocacy and reached the third salary coefficient after 8 years of practice), which also relativises the assessment of the appropriateness of the measure under review. Although this woman has never actually served as a judge and has never worked in justice (in court), she will reach the third pay coefficient first. Of course, if a third woman, instead of a lawyer, had been in the judiciary, had she become a judge before eight years of practice, and would not have been on maternity and parental leave for eight years, she would have moved to the third pay coefficient as quickly as possible, and the subsequent use of maternity and parental leave would have no effect on her, as with a lawyer, for the length of the period of the relevant period for salary growth. At the same time, this can only be the case if it would be possible to complete three years of office at that time, which is only possible if the duties of judge are taken at the latest at the beginning of the sixth year of practice. In terms of achieving a legitimate objective, however, it is a significant difference that, unlike the other person, maternity and parental leave will not affect the level of pay, although, like the other woman, it will be drawn as a starting judge. A person who would have started his career in a court of law at 24 years, unlike a third woman after 8 years of practice without maternity and parental care, could not have reached a third salary coefficient because he could not have been appointed to the post of judge at the earliest 30 years, and as a result of Article 31 (5) of Law No 236 / 1995 Coll. he would have reached three years of employment after 9 years of experience (paradoxically, he would have reached a third rate, like a lawyer from the judiciary, which would have delayed the appointment until the ninth year of practice and was equally included in the third coefficient, i.e. also with a zero performance of the judicial function).
95. Only the first woman will be subject to the contested provision, which will result in her spending time on maternity and parental leave not being taken into account for the procedure of the second salary rate, and she will have to perform the duties of judge for another two years (not counted for the two years during which she was on maternity and parental leave) before fulfilling the conditions for the procedure for both the third and fourth rates.
96. The set of starting judges (i.e. those newly appointed and thus covered by a legitimate objective) and the set of persons affected by the contested provisions are not the same. The legislature's chosen design of the contested provision could have been justified at the time of the adoption of Act No. 236 / 1995 Coll. In the current situation, when people with a career career other than that of the applicant come into justice, there is no reason to expect that all early judges would be starting judges before the ninth year of their overall practice.
97. Based on its political decision, the legislature has allowed that the period of maternity and parental leave, as well as the other periods referred to in § 31 (4) of Act No. 236 / 1995 Coll., as amended by Act No. 155 / 2000 Coll., is included in the relevant period for determining the payment coefficient. Consequently, the contested provision states arbitrarily that, in order to allow maternity and parental leave to be counted to increase the (coefficient) of the judge's salary, it must typically take place with the judges at a different time than between the sixth and eighth years (precisely before the ninth year) of the practice of the person concerned. The three-year actual performance of a judge shall be required to proceed to the third salary coefficient and the person appointed by or shortly after the judge shall have no choice but to fulfil the condition of the three-year actual performance of the Judge during that period. It is not justified, however, why it should not be possible for people at this stage of career development to include maternity and parental leave in the actual exercise of their duties, when there is no such restriction, even if they are starting judges, for other judges whose maternity and parental leave falls under the eighth year of general practice.
98. This indicates that the legislature did not choose the most respectful of fundamental rights, since the legitimate objective is selectively pursued only for certain persons on the basis of the arbitral criterion, which creates unfounded differences between the judges as well. Therefore, the contested provision did not stand up to the necessity test.
99. If the contested provision was not in the necessity test, there is no longer a need to carry out a proportionality test in the narrower sense. The contested provision did not stand in the proportionality test and is therefore discriminatory and therefore contradictory to Article 3 (1) of the Charter in conjunction with Article 28 of the Charter. It is therefore no longer necessary to assess separately whether the contested provision is also contradictory to the right to a fair remuneration for the work provided for in Article 28 of the Charter.
100. The Constitutional Court adds that at the time of its adoption the contested provision could have had a different effect. At that time [until the amendment of Act No. 192 / 2003 Coll., amending Act No. 6 / 2002 Coll., on Courts, Judges, Addresses and Government Administration of the Courts and amending some other laws (Law on Courts and Judges), as amended, Act No. 283 / 1993 Coll., on the Prosecutor's Office, as amended, and some other laws, i.e. until 30 June 2003], were the minimum age limit for appointment as a judge only 25 years. A woman who was appointed judge at the age of 25, subsequently served as judge and took maternity and parental leave, entered the sixth year of her overall practice with several years of experience in the performance of the judicial function. By introducing an age limit of 30 years for the appointment of a judge, the contested provision had a different effect, since persons between the sixth and eighth years of overall practice were generally starting judges. At the latest, by adopting an amendment allowing for so-called lateral entry into justice, the contested provision has ceased to be necessary definitively.
The temporal effects of the finding
101. The Constitutional Court remains to assess whether the finding gives rise to a refund. The question is, therefore, whether salaries must now be paid back to those who, as a result of the provision under review, did not count the period of maternity and parental leave for the performance of the three-year term of office of a judge and did not therefore go from the second rate to the third.
General considerations
102. If the Constitutional Court decides to abolish the law or its individual provision pursuant to Article 87 (1) (a) of the Constitution, the law or the relevant provision shall cease to apply on the date of enforcement of the finding. This is either the date of the declaration of the finding in the Collection of Laws and International Treaties, or another date determined by the Constitutional Court in the finding (Article 89 (1) of the Constitution in conjunction with Sections 58 (1) and 70 (1) of the Constitutional Court Act). Thus, in the level of objective law, the repeal of the law has been in effect since the date on which the finding became enforceable.
103. However, the reason for which the Constitutional Court found the inconstitutionality of the law may in some cases prevent its application even in relation to the facts which occurred at the time of its effectiveness (Opinion of the plenary of Mr Pl. In addition, the General Courts refer to the Constitutional Court for an application for annulment pursuant to Article 95 (2) The Constitution is precisely so that they do not have to apply a law which they regard as unconstitutional (cited opinion, paragraph 29).
104. However, the very fact that the Constitutional Court has decided to abolish the law or declare its inconstitutionality does not mean that any use of it constitutes a violation of fundamental rights and freedoms or any other unconstitutional consequence. On the contrary, there may be reasons for which, from the constitutional point of view, it could not be precisely the non-application of such a law. The basis for any consideration in this regard must be the specific reason for the inconstitutionality of the law, which was expressed in the supporting parts of the preamble to the Constitutional Court's finding (cited opinion, paragraph 30).
Assessment of the case
105. The contested provision concerns the salary of a judge. The relationship between the State and the judges, as "employees' of the State, is, in its nature, closer to the vertical relationship. In such relations, the protection of the fundamental rights and freedoms of the individual [finding sp. zn.
106. The case law of the Constitutional Court on judicial fees admits that the requirement to pay back the part of the salary which has not been paid to the judges as a result of the abolished anti-constitutional legislation may, in certain circumstances, lead to a threat to the State's ability to perform its duties, which may require priority to be given to legal certainty and the maintenance of the current legal situation.
107. However, the Constitutional Court found no reason for such action in the present case. First of all, compared with the requirement to pay in full, all judges will have a much lower impact on the primacy of the protection of the fundamental rights of individuals in the present case, given the number of persons concerned by the contested provision (in addition, the obligation to pay in full does not have to apply, as the requirement to pay in full more than three years ago may be resisted by the State by the objection of limitation). Under these circumstances, it cannot be considered that there could be a threat to the state budget.
108. Nor can it be borne in mind that the legislature had, at the latest with the amendment to the Law on Courts and Judgments with Side Inputs (but probably already in the setting of the 30-year age limit), to regulate the legal regulation of salaries in the light of the shift in who will be the starting judge and, therefore, how the contested provision should be designed to cover the whole category of persons concerned by the legitimate objective pursued by the contested provision. Similarly, the government could have responded to the opening of the current procedure by initiating a change of legislation. None of this happened. Therefore, the effective remedy of the inadmissible different treatment to which the applicant and other persons have been subjected can only constitute a priority of their rights over the certainty of the certainty of the original situation.
Conclusion
109. The contested provision is, when it comes to maternity and parental leave, contrary to the prohibition of discrimination contained in Article 3 (1) of the Charter. The Constitutional Court therefore complied with the proposal of the Circular Court and, under Paragraph 70 (1) of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., annulled the contested provision to that extent. The cancellation will take place on the day of the declaration of the finding in the Collection of Laws and International Treaties. In order to avoid doubt, the Constitutional Court adds that the annulment of the contested provision in respect of maternity and parental leave cannot be interpreted as newly falling under the contested provision under the general (residual) § 31 (4) (c) of Act No. 236 / 1995 Coll. Similarly, the requirement for the "actual 'performance of the duties of judge in § 31 (5) of Law No 236 / 1995 Coll. should be interpreted as including the period of maternity and parental leave. In other words, maternity and parental leave shall be counted without restriction by the contested provision until the relevant time.
110. The Constitutional Court ruled on the so-called "scope statement 'and annulled the contested provision only if it relates to maternity and parental leave. To that extent, it was necessary to decide on the application of the Circuit Court with regard to the subject matter of the proceedings before it. The reasons for the derogatory decision apply only to this extent of the provision under consideration. At the same time, however, the Constitutional Court considers it necessary to note that some of the reasons for which the contested provision in relation to maternity and parental leave is annulled may also relate to other situations provided for in Article 31 (4) of Act No. 236 / 1995 Coll., as amended by Act No. 155 / 2000 Coll., in particular other reasons modified as well as maternity and parental leave under point (b). However, in relation to them, the Constitutional Court does not abolish the contested provision for the reasons described in point 59.
111. On the request for a preliminary examination of the application (pursuant to § 39 of the Law on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.) The Constitutional Court then no longer decided (expressly) because it decided without undue delay after receiving the observations and replies of the appellant.
President of the Constitutional Court:
JUDr.
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Regulation Information
| Citation | Findings of the Constitutional Court No 6 / 2025 Coll., sp. zn. Pl. ÚS 16 / 24 on the application for annulment of Section 31 (5) of Act No. 236 / 1995 Coll., on the salary and other formalities relating to the performance of the duties of representatives of the State and of certain state bodies and judges and Members of the European Parliament |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 09.01.2025 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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