2007/10/16 - Pl. ÚS 53/04: Equality of Rights

16 October 2007

HEADNOTES

The

Constitutional Court first considered the question of whether the

contested § 32 of the Pension Insurance Act, as amended, is inconsistent

with Art. 52 of the Constitution. It began with the consideration that

the expert literature gives the Collection of Laws an informational

function, consisting of the fact that the Collection of Laws serves as

the official source for legal regulations (see. K.Klíma and collective

of authors, Komentáře k Ústavě a Listině [Commentary on the Constitution

and the Charter], Pilsen, Vydavatelství a nakladatelství Aleš Čeněk,

s.r.o., 2005, p. 281). Although Act no. 155/1995 Coll., on Pension

Insurance, was – as mentioned above – amended fifteen times while it was

in effect, and since 1995 the complete wording has not been promulgated

in the Collection of Laws after any of the amendments, the

Constitutional Court found that § 32 of the Pension Insurance Act,

amended only by Act no. 425/2003 Coll. was still sufficiently easily

understandable for a generally familiarity with the law, as a rule

guiding the conduct of those for whom it is intended.
Equality is a

relative category, which requires the removal of unjustified

differences. Therefore, the principle of equal rights under Art. 1 of

the Charter of Fundamental Rights and Freedoms, must be understood such

that legal distinctions in the approach to certain rights may not be an

expression or arbitrariness; however, it does not give rise to the

conclusion that everyone must be granted every right.

A

particular legal framework that gives an advantage to one group or

category of persons compared to another, cannot, in and of itself, be

said to violate the principle of equality. The legislature has some room

for discretion about whether to implement such preferential treatment.

It must see to it that the preferential approach is based on objective

and reasonable grounds (a legitimate legislative aim), and that there is

a proportional relationship between that aim and the means used to

achieve it (legal advantages).

The

Constitutional Court does not share the opinion that the contested

provision is inconsistent with Art. 1 and Art. 3 par. 1 of the Charter

in relation to Art. 30 par. 1 of the Charter, cited by the petitioner,

and that annulling § 32 of the Pension Insurance Act would implement

equality between the sexes in relation to the right to material security

in old age. If the contested provision were annulled, a certain

advantage for women/mothers would be removed, without, as part of the

“equalization,” men/fathers acquiring the same advantages as

women/mothers have. The Constitutional Court functions only as a

negative legislature, and its intervention regarding the contested

provision would thus only violate the principle of protection citizens’

confidence in the law, or perhaps interfere in legal certainty, or

legitimate expectation. In this context, the Constitutional Court states

that in this case a conflict between the positive law and justice has

not arisen.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Plenum of the Constitutional Court, composed of Stanislav Balík (judge

rapporteur), František Duchoň, Vlasta Formánková, Vojen Güttler, Ivana

Janů, Vladimír Kůrka, Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Pavel

Rychetský, Miloslav Výborný, Eliška Wagnerová and Michaela Židlická,

ruled in the matter of a petition from the Supreme Administrative Court,

represented by JUDr. Miluše Došková, seeking the annulment of § 32 of

Act no. 155/1995 Coll., on Pension Insurance, as amended by later

regulations, with the participation of the Chamber of Deputies and the

Senate of the Parliament of the CR, as parties to the proceedings, and

the Regional Court in Hradec Králové, represented by JUDr. Marcela

Sedmíková and the Supreme Administrative Court, represented by JUDr.

Jaroslav Vlašín, as secondary parties to the proceedings, as follows:
 

The petition is denied.
 


REASONING


I.
Description of the Matter and Recapitulation of the Petition
 

1.

On 25 October 2004, the Constitutional Court received a petition from

the Supreme Administrative Court, represented by JUDr. Miluše Došková

(the “petitioner”), under § 64 par. 3 of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations (the “Act on the

Constitutional Court”), seeking the annulment of § 32 of Act no.

155/1995 Coll., on Pension Insurance, as amended by later regulations

("the Pension Insurance Act").
2. The petition was submitted in

connection with the petitioner’s decision-making regarding a cassation

complaint by plaintiff Emil Pastrňák against the defendant Czech Social

Security Administration, against a decision by the Regional Court in

Ostrava of 13 November 2003, ref. no 21 Cad 79/2003-18, which denied the

complaint against a decision by the Czech Social Security

Administration of 24 April 2003, no. 480 928 418, denying the

plaintiff’s application for a retirement pension due to failure to meet

the conditions of § 31 and § 32 par. 3 of the Pension Insurance Act. The

petitioner is conducting the matter as file no. 2 Ads 2/2004.
3. The

petitioner believes that § 32 of the Pension Insurance Act, that is,

the setting of different retirement ages, according to the number of

children raised, only for women, is inconsistent with the constitutional

order, specifically with Art. 1, Art. 3 par. 1 and Art. 30 par. 1 of

the Charter of Fundamental Rights and Freedoms (the “Charter”).
 

4.

Responding to the plaintiff’s arguments, the petitioner suspended

proceedings in the matter and submitted to the Constitutional Court a

petition to annul the provision in question. It took the position that §

32 of the Pension Insurance Act, which is being applied in the matter,

is inconsistent with the constitutional order of the Czech Republic,

insofar as it sets the retirement age according to the number of

children raised only for women. It concluded that the contested

provision is so mandatory that it does not permit the discrimination

against men raising children as single parents to be overcome even

through a constitutional interpretation. The petitioner pointed to the

Constitutional Court judgment of 21 January 2003, file no. Pl. ÚS 15/02

(publ. in the Collection of Laws as no. 40/2003 Coll.), and its

essential grounds, concerning equal rights. The petitioner pointed out

that in Czech law the retirement age has traditionally been set

differently for women and men, and it is further differentiated for

women according to the number of children raised. In the petitioner’s

opinion, reasonable grounds for justifying the difference in the

conditions and appropriate amount of security in old age cannot be found

if only a certain group of persons receives an advantage in meeting

special conditions and another group that meets the same conditions is

denied the advantage. Thus, even though there are no substantive grounds

for it, related to the different sexes, the law defines differently,

based on the sex of the person caring for a child, the right of that

person to receive a retirement pension, and sets unequal conditions for

men and women when setting the retirement age in connection with caring

for children. Finally, the petitioner pointed to the advantageous

position of women under Art. 29 of the Charter, and to Art. 32 par. 4 of

the Charter in connection with caring for children as part of the

rights of both parents.
 

5.

On 18 January 2005 the Constitutional Court issued a decision, file no.

Pl. ÚS 67/04, denying the petition from the Regional Court in Hradec

Králové, represented by JUDr. Marcela Sedmíková, delivered to the

Constitutional Court on 1 December 2004, seeking annulment of § 32 of

the Pension Insurance Act, because the petition was barred by the

obstacle of a lis pendens. In view of the fact that the petition was

filed by an authorized petitioner under § 64 par. 3 of the Act on the

Constitutional Court, the authorized petitioner has the right under § 35

par. 2 in fine of the Act on the Constitutional Court to take part in

proceedings on the previously filed petition as a secondary part in the

matter Pl. ÚS 53/04.
 

6. On

27 January 2005 the Constitutional Court issued a decision, file no. Pl.

ÚS 72/04, which denied the petition of the Supreme Administrative

Court, represented by JUDr. Jaroslav Vlašín, delivered to the

Constitutional Court on 13 December 2004, seeking the annulment of § 32

of the Pension Insurance Act, because the petition was barred by the

obstacle of a lis pendens. As the petition was filed by an authorized

petitioner under § 64 par. 3 of the Act on the Constitutional Court, the

authorized petitioner has the right under § 35 par. 2 in fine of the

Act on the Constitutional Court to take part in proceedings on the

previously filed petition as a secondary part in the matter Pl. ÚS

53/04.
 


II.
Recapitulation of the Substantive Parts of the Statements from the Parties
 

7.

Pursuant to § 42 par. 4 a § 69 of the Act on the Constitutional Court

sent the petition in question, seeking the annulment of § 32 of the

Pension Insurance Act, to the Chamber of Deputies and the Senate of the

Parliament of the Czech Republic.
 

8.

In its statement of 25 April 2006, the Chamber of Deputies of the

Parliament of the CR pointed to the typology of retirement ages in the

Pension Insurance Act and to the fact that the general retirement age

for women is further differentiated according to the number of children

raised. It emphasized, that the possibility of providing advantages in

pension insurance to persons who raised children, e.g. by lowering the

retirement age, is part of international standards, e.g. Council

Directive no. 79/7/EHS of 19 December 1978, on the progressive

implementation of the principle of equal treatment for men and women in

matters of social security. The Chamber also pointed to Art. 18 of the

Convention on the Rights of the Child and Art. 5 of the Convention on

the Elimination of All Forms of Discrimination against Women. In the

Chamber’s opinion, in preparing pension reform it will evidently be

appropriate to stop seeing the raising of a child as a matter reserved

exclusively for women, and to expand it to men. The status and roles of

men and women in society are changing, and it is unquestionably

necessary to react to that. However, § 32 of the Pension Insurance Act

should not be changed immediately, but at the earliest after 2012, when

the progressive raising of the retirement age is to end. In the

conclusion of its statement the Chamber stated that the legislative

assembly acted in the belief that the enacted statute is consistent with

the Constitution, the constitutional order, and the legal order of the

Czech Republic. It is up to the Constitutional Court to evaluate “the

constitutionality of the statute and issue the appropriate decision.”
 

9.

The Senate of the Parliament of the Czech Republic, in its statement of

28 April 2006, stated that Act no. 155/1995 Coll., on Pension

Insurance, was passed by the Chamber of Deputies on 30 June 1995, to go

into effect on 1 January 1996, i.e. at a time before the Senate was

created. The contested provision of § 32 in the current text was

introduced by an amendment made by Act no. 425/2003 Coll., which amends

Act no. 155/1995 Coll., on Pension Insurance, as amended by later

regulations, Act no. 589/1992 Coll., on Social Security Premiums and

Contributions to State Employment Policy, as amended by later

regulations, Act no. 582/1991 Coll., on the Organization and

Administration of Social Security, as amended by later regulations, and

Act no. 48/1997 Coll., on Public Health Insurance and Amending and

Supplementing Certain Related Acts, as amended by later regulations. The

substance of the amendments was savings measures; one of the changes

was to raise the age for retirement pensions from 62 to 63, keeping a

lower retirement age for women, according to the number of children

raised. The extensive discussion also mentioned the amending proposals

to the government bill that were passed by the Chamber of Deputies. One

of them was an amending proposal concerning keeping the reduced

retirement age for women according to the number of children raised,

whereas the government bill contained a framework which would have

progressively (by 2005) introduced a uniform retirement age for men and

women, with the number of children raised no longer being taken into

account when setting the retirement age for women. The explanatory

report to the bill stated that a uniform retirement age for men and

women corresponded to the fundamental EU law on equality of the sexes,

and that the heretofore different retirement ages for men and women in

some states were tolerated as an exception for historical reasons. The

Senate pointed out that the framework differentiating the retirement age

for women according to the number of children raised was introduced by

Act no. 101/1964 Coll., on Social Security, with effect as of 1 January

1965; this framework was basically justified on the grounds that “it

expresses the different life situation of mothers who, in addition to

fulfilling their work obligations, also fulfilled obligations in taking

care of children.” The government proposal from 2003, aimed at

progressively introducing a uniform retirement age for men and women,

where the solution was to be that the number of children raised would

not be taken into account for either men or women, which was to be

achieved progressively by 2025, corresponds in time with the Slovak

solution provided by the Slovak Act no. 461/2003 Coll., leading to

unifying the retirement ages for men and women by 2015. In 1998 the

government, in resolution no. 236, passed the document Government

Priorities and Procedures in Promoting Equality between Men and Women,

on the basis of which, every year, it discusses the Summary Report on

the Fulfillment of Government Priorities and Procedures in Promoting

Equality between Men and Women. The report for 2003 identified the

difference between men and women in the age requirement in the basic

system for entitlement to old-age pensions as a problem related to the

care for children in the area of basic pension insurance. However, [it

said] this inequality should not be addressed by granting a more

advantageous entitlement to men, but rather by taking away entitlements

from women. The report for 2004 stated that, in terms of EU norms, it

appeared that the regulations on pension insurance (in particular, Act

no. 155/1995 Coll., as amended by later regulations) do not contain

provisions that give rise to unequal standing of men and women. Article 7

of Council Directive 79/7/EHS removes from its jurisdiction the setting

of retirement age for provision of old-age and veterans’ pensions, and

its possible consequences for benefit payments and the advantageous of

the system of old-age pensions provided to persons who raised children.

That means that the different retirement ages for men and women, and its

possible consequences, continue to be permissible in the pension

system. Finally, the report for 2005 stated that, at the government

level, the current framework of different retirement ages for men and

women in connection with care for children was seen as unequal standing,

or a framework that is discriminatory toward men. Nonetheless, opinions

began to appear that pointed toward the unequal position of men and

women in terms of the different retirement ages, for example, in the

Report on the State of Human Rights for 2004, the Czech Helsinki

Committee stated that “a distinctive inequality is the higher age for

entitlement to an old-age pension for men who cared for a child than for

women who cared for a child.” In February 2006 the Czech Republic

Government Council for Human Rights, in the Initiative of the CR

Government Council for Human Rights on the Discrimination against Men

Caring for Children, stated, among other things, that “the present legal

regulation of the statutory retirement age discriminates against men by

setting different retirement ages for men and women, and by setting the

retirement age according to the number of children raised. Yet, at

present it disadvantages women in the labor market as a result of the

fact that the statutory retirement age in practice artificially shortens

the career track of women who are mothers, which supports the

prevailing stereotype that it is primarily a woman who is supposed to

take care of children. Motherhood should not automatically be either a

reason for ‘advantages,’ nor mean a disadvantage on the labor market,

because belonging to the female sex does not automatically make one

qualified to be a parent and belonging to the male sex does not make one

analogously disqualified.” According to this document, addressing sex

discrimination is a “relatively radical intervention in the existing

framework,” and, as pension system reform is unavoidable, addressing

this problem should be part of the pension insurance reform being

prepared.” The Ombudsman’s report on activities for the first quarter of

2006 stated that the old legal regulation derived from the traditional

concept of the family is basically discriminatory, “even though the

draft anti-discrimination law does not consider the different retirement

age to be discrimination.[”] The Senate of the Parliament of the CR

concludes that “opinions about the constitutionality or

unconstitutionality of the legal framework providing different ages for

men and women for entitlement to an old-age pension are quite varied.”

It concludes that “it is surely not an expression of arbitrariness by

the legislature, but more a question of maintaining the previous

framework, passed during a particular historical period, because

changing it, in view of present-day conditions, is relatively

complicated socially and politically. Thus, insofar as an opinion is

stated that the legal framework of different retirement ages for men and

women is unconstitutional, as a framework that is discriminatory toward

men, and that resolving this problem should be part of the reform of

pension insurance, the question remains in how many years the present

framework could or should be changed. It is up to the Constitutional

Court to evaluate the constitutionality of the contested § 32 of Act no.

155/1995 Coll., on Social Security, as amended, and decide the matter,

and in the event it grants the petition, to decide as of what date the

cited provision is annulled. However, in this regard we can state that

it is difficult to expect that it would be possible (socially tolerably

and economically or politically acceptable) to resolve this issue in

such a way that the discrimination against men would be eliminated “in

one stroke” as of a particular date.
 


III.
Recapitulation of the Essential Parts of the Statements Requested by the Constitutional Court
 

10.

The Constitutional Court, pursuant to § 48 par. 2 of the Act on the

Constitutional Court, also requested statements from the Ministry of

Labor and Social Affairs and the Czech Social Security Administration.
 

11.

The Ministry of Labor and Social Affairs (the “Ministry”), in its

statement of 26 April 2006, addressed the issue of the importance of the

retirement age in pension insurance, briefly described the development

of the current legal framework, gave its opinion on the relationship of

the current legal framework to EU/EC norms, described, from a

comparative law perspective, the essential information concerning

foreign legal frameworks, and presented an analysis of the possibilities

for unifying the different retirement ages in the Czech Republic. The

Ministry especially pointed to the fact that retirement ages in the

Czech Republic are differentiated, and not only by sex. It emphasized

the fact that the retirement age is a key institution in the Pension

Insurance Act, without which the Act would basically be inapplicable. As

part of a historical survey, the Ministry pointed out that different

retirement ages for men and women were first introduced in the Czech

Republic by Act no. 55/1956 Coll., on Social Security, with effect as of

1 January 1957. The explanatory report to that Act emphasized the

“special status and physical constitution of women.” In 1956, only about

half of the retirement systems then existing in the world gave women a

lower age than men for entitlement to an old-age pension, regardless of

the number of children raised. It was not until Act no. 101/1964 Coll.,

on Social Security, most of whose provisions went into effect on 1 July

1964, that the age limit for women for entitlement to an old-age pension

was further differentiated, according to the number of children raised.

According to the explanatory report to that Act, “this different

retirement age expresses the different life situation of mothers, who,

in addition to fulfilling their work obligations, also fulfilled

obligations in the family when caring for children.” The Ministry

emphasized that the different retirement ages for men and women meant a

change that arose historically in a particular social context, because

the opinion at that time was that concurrent employment and care for

children placed greater demands on a woman than on a man, and society

reached a consensus to compensate that status, or task, of women, with

an earlier retirement. The Ministry relies on statistical data from the

year 2004 to document the fact that in the Czech Republic there are

still considerable differences in the socio-economic status of men and

women. The Pension Insurance Act, which went into effect on 1 January

1996, introduced progressive increases in the existing retirement ages,

more markedly in the case of women. The reason for these differentiated

increases was implementation of the aim to progressively align the

retirement ages for men and women. The process of aligning the

retirement ages for men and women is a long-term matter, analogous to

how the differentiation was implemented, that also being the result of

historical developments. The government draft of the amendment of the

Pension Insurance Act of 2003 contained a legal framework that consisted

of further continuation of the differentiated increases in retirement

ages, with the aim of unifying them at 63, regardless of the number of

children raised, which was to be reached in 2025. With the passage of an

amending proposal from the Chamber of Deputies, the increases in

retirement age continue with the differentiation, so far with the goal

being a different age for men and childless women on the one hand, and

for women who raised children on the other. Discussion continues, not

about whether to progressively align the retirement ages for men and

women, with the aim of unifying them, but about the speed of the

alignment. The decision to progressively unify the retirement ages is

consistent with foreign trends in countries whose situation is similar

to that of the Czech Republic; only in Slovakia is the number of

children raised temporarily a further criterion for setting lower

retirement ages for women, analogously to the Czech Republic, which also

results from the history from the creation of a joint state until the

division of the CSFR. To a certain extent children raised are also taken

into account in Slovenia. The Ministry pointed to the fact that the

Ombudsman, as indicated from his summary report on activities in 2005,

did not receive any applications concerning this issue, and did not work

with the issue, and also pointed to the fact that proceedings

concerning the Council Directive of 19 December 1978 (7917/EEC) were

stopped, which means that it is not necessary to implement a special

transposition process for this directive, and the Czech legal framework

is not inconsistent with it. The Council Directive of 20 December 1996

(96/97/ES), which amends Directive 86/378/ES, on the implementation of

the principles of equal treatment for men and women in occupational

social security schemes, does not permit different retirement ages for

men and women in such systems, but it is not relevant to the Pension

Insurance Act, which governs basic state pension insurance, and

therefore the European Commission does not require the Czech Republic to

unify the retirement age for men and women for entitlement to an

old-age pension out of the basic pension insurance. In its

comparative-law overview, the Ministry points to a trend of “raising the

lower retirement ages of women.” The same retirement for men and women

is found, for example, in Denmark, the Netherlands, Germany, Portugal,

Spain, Ireland, Canada, Finland, Norway, Iceland, France, and the USA;

the process of progressively unifying the different retirement ages is

going on in, for example, Belgium, Estonia, Latvia, Hungary, Austria,

Great Britain, and Australia; in some countries the differentiation is

being preserved even as the retirement age is progressively raised, for

example, in Lithuania, Switzerland, Bulgaria and Romania. A proposed

retirement age also existed at the end of the 1990s in Poland, Malta,

Russia and the Ukraine. A differentiated age according to the number of

children raised, but generally not only for mothers, is maintained to

some extent in, for example, Slovenia, Latvia, Estonia, and Austria. The

Ministry also presented individual alternatives for unifying the

retirement age: progressive unification of different retirement ages for

men and women regardless of the number of children raised, taking the

raising of children into account when setting the retirement age for men

as well as women, and a one-time unification of the different

retirement ages for men and women, regardless of the number of children

raised. Regarding the last alternative, i.e. the simultaneous removal of

the unequal status of men and women (in a “jump”), i.e. as of a

particular date removing the discrimination based on the number of

children raised, the Ministry stated that “this alternative (the “shock”

alternative) would be so socially insensitive, and inconsistent with

the principle of predictability in law, that it would be socially and

politically unacceptable and untenable, and therefore it is not even

described in detail.” The approach of lowering the retirement age for

men based on raising children would be completely opposite to the

approach adopted by all the familiar foreign retirement systems, and

would lead to a considerable increase in pension expenditures. The

Ministry also pointed to possible practical problems, for example the

fact that the retirement age would have to be simultaneously assessed

for two (or more) insured persons, “because there is no reliable way of

determining which of the parents (in the event of caring for a child in a

shared household) provided personal care for a child to a greater

extent, and for whom the raising of a child should therefore be

recognized for purposes of lowering the retirement age.” If, in the end,

raising a child for purposes of lowering the retirement age of a man

were recognized only in a case where it could not be allocated to any

woman, this would not eliminate unequal treatment, because raising a

child would always be allocated to a woman, regardless of whether a man

raised the child together with her, but it would be allocated to a man

only if he proved that he raised the child alone. The Ministry concludes

that the principle of equal treatment for men and women must be

implemented in the basic pension insurance progressively, and by taking

into account all circumstances, including economic effects; retirement

age issues cannot be addressed in isolation. The present legal framework

for basic pension insurance, consisting of progressively removing the

differences between men and women, is appropriate. A sudden and abrupt

change in the legal framework would, on the contrary, be seen negatively

by women, as an element of arbitrariness and violation of legal

certainty and predictability. In view of the foregoing, the Ministry of

Labor and Social Affairs takes the position that the petition to annul §

32 of the Pension Insurance Act must be denied.
 

12.

The Czech Social Security Administration (“CSSA”), in its statement of

17 April 2006, stated that the retirement age, which is set differently

for men and women, undoubtedly results from the historical and

sociological background to the regulation of social security. Under § 32

of the Pension Insurance Act, the retirement age for women, derived

from the number of children raised, reflects a historical need, and the

indisputable, and in its way irreplaceable, role of women in the

household (family) in the continental (and particularly central

European) context. According to the CSSA, although there have been great

social changes at the end of the 20th century, and the equality of men

and women in all areas has become one of the key principles of social

and social-legal reality, and there are not such marked differences

between the roles of men/fathers and women/mothers, the disputed

provision can still be defended. Empirical and statistical evidence

demonstrates that a woman with children has a reduced opportunity for

career advancement and professional growth compared to a man who is a

father, and a woman with children is not disadvantaged because she is a

woman, but because she has children. The development of a woman’s

professional career is demonstrably slower than that of a man’s, which

has in a fundamental effect on the amount of pension benefit payments.

The purpose of the disputed norm lies in removing that unjustified

difference. The question arises whether, in raising children, as

understood by the statutory provision, emphasis is laid on motherhood or

parenthood. The physiological aspect of motherhood has a not

inconsequential negative effect for a woman, not only in limiting her

status in the labor market, but also within her existing employment.

Pregnancy, childbirth, and breastfeeding are irreplaceable roles; women

cannot be replaced in them by men. Men/fathers do not find themselves in

this situation, even in the event that they assume family and parental

responsibilities connected with raising a child. In the current social

context other parental responsibilities do not have the same effect on

their career advancement as in the case of women/mothers. Thus, giving

priority to motherhood can be considered just and correct, not

establishing discriminatory treatment of the sexes. The retirement ages

are progressively radually being aligned so that for men, as for women

who do not have children, they will be 63 years of age after 31 December

2012. The setting of a different retirement age for women and men is

not a matter only for the Czech Republic. The CSSA notes that any

deliberation about setting a lower retirement age for men in connection

with raising children should be supported not only by a serious study of

the economic consequences of such a step, but also by other studies of a

sociological nature on the position of a women/mother in the labor

market, in the household, etc. which should demonstrate the absolutely

identical (or only minimally different) and “fungible” position of men

and women in all areas of social life. If the entire § 32 of the Pension

Insurance Act were annulled, which would be necessary in view of its

formulation, then the unexpected non-existence of the provision on the

“retirement age” would affect other institutions related to the

retirement age, which would evidently be very complicated. The CSSA is

of the opinion that the existing situation is not inconsistent with EC

law. It points to Art. 7 of Council Directive EHS 79/7 and also to Art. 6

par. 3 of the Agreement on Social Policy, which is attached to Protocol

no. 14 of the Treaty on European Union. This article is also fully

applicable in connection with Title XI, on Social Policy, of the Treaty

establishing the European Community, in the consolidated version from

Nice, which enshrines a ban on discrimination, and equal treatment in

the area of “pay” for women and men for the same work. This provision

does not prevent a member state from keeping or implementing measures

that provide special advantages, making it easier for women to perform

their professional activities, or that prevent or balance disadvantages

in their professional advancement. Thus, the CSSA concludes that the

comprehensive framework, consisting of progressively aligning the

retirement ages of men and women, with the aim of reaching the same age

(and from that position, the view e ratione legis, and, moreover, taking

into account generally observing the constitutional principle of

special protection for women and mothers), is consistent with the

principle of equal treatment. The treatment of women/mothers is based on

objective, reasonable grounds, and does not create unjustified

(discriminatory) differences between the sexes.
 


IV.
Text of the Contested Provisions of the Act and their Legislative History
 

13.

The Constitutional Court states that the contested § 32 of the Pension

Insurance Act, at the time the petition was filed, and at the present

time, reads as follows:
Ҥ 32
(1) The retirement age is
a)    for men, 60 years of age,
b)    for women,
1.    53 years of age, if they raised at least five children,
2.    54 years of age, if they raised three or four children,
3.    55 years of age, if they raised two children,
4.    56 years of age, if they raised one child, or
if the insured persons reached that age by 31 December 1995.
(2)

For insured persons who reach the age limits provided in paragraph 1 in

the period until 31 December 2012, the retirement age is set in the

following manner. The following are added to the month in which the

insured person reached the specified age: for men, two calendar months,

and for women, four calendar months, for each year, or part of a year,

from the period after 31 December 1995 to the day the person reaches the

age limits specified in paragraph 1; the retirement age is considered

to be the age reached in the thus-determined calendar month on the day

with the same number as the day of the insured person’s birth; if the

thus-determined month does not contain a day with that number, the

retirement age is the age that is reached on the last day of the

thus-determined month.
(3) After 31 December 2012, the retirement

age, if the insured persons have not reached retirement age under

paragraph 1 or 2, is
a)    for men, 63 years of age,
b)    for women,
1.    59 years of age, if they raised at least five children,
2.    60 years of age, if they raised three or four children,
3.    61 years of age, if they raised two children,
4.    62 years of age, if they raised one child, or
5.    63 years of age.
(4)

The condition of raising a child, for purposes of a woman’s entitlement

to an old-age pension, is met if a woman personally cares for or cared

for a child under the age of majority for at least ten years. However,

if a woman took over care of a child after the child reached the age of

eight, the condition of raising a child is met if a woman personally

cares for or cared for a child under the age of majority for a period of

at least five years; however, this does not apply if the woman ceased

to care for the child before the child reached the age of majority.”
 

14.

The Constitutional Court states that § 32 of Act no. 155/1995 Coll. on

Pension Security [sic, should be Insurance], read as follows:
Ҥ32
(1) The retirement age is
a)    for men, 60 years of age,
b)    for women
1.    53 years of age, if they raised at least five children,
2.    54 years of age, if they raised three or four children,
3.    55 years of age, if they raised two children,
4.    56 years of age, if they raised one child, or
5.    57 years of age,
 if the insured persons reached that age by 31 December 1995.
(2)

For insured persons who reach the age limits provided in paragraph 1 in

the period from 1 January 1996 through 31 December 2006, the retirement

age is set in the following manner. The following are added to the

month in which the insured person reached the specified age: for men,

two calendar months, and for women, four calendar months, for each year,

or part of a year, from the period after 31 December 1995 to the day

the person reaches the age limits specified in paragraph 1; the

retirement age is considered to be the age reached in the

thus-determined calendar month on the day with the same number as the

day of the insured person’s birth; if the thus-determined month does not

contain a day with that number, the retirement age is the age that is

reached on the last day of the thus-determined month.
(3) After 31 December 2006, if the insured persons have not reached retirement age under paragraph 1 or 2, is,
a)    for men, 62 years of age,
b)    for women
1.    57 years of age, if they raised at least five children,
2.    58 years of age, if they raised three or four children,
3.    59 years of age, if they raised two children,
4.    60 years of age, if they raised one child, or
5.    61 years of age.
(4)

The condition of raising a child, for purposes of a woman’s entitlement

to an old-age pension, is met if a woman personally cares for or cared

for a child under the age of majority for at least ten years. However,

if a woman took over care of a child after the child reached the age of

eight, the condition of raising a child is met if a woman personally

cares for or cared for a child under the age of majority for a period of

at least five years; however, this does not apply if the woman ceased

to care for the child before the child reached the age of majority.”
 

15.

The Constitutional Court also states that the contested § 32 was not in

any way affected by amendments to Act no. 155/1995 Coll., implemented

by Acts no. 134/1997 Coll., no. 289/1997 Coll., no. 224/1999 Coll., no.

18/2000 Coll., no. 118/2000 Coll., no. 132/2000 Coll., no. 220/2000

Coll., no. 116/2001 Coll., no. 188/2001 Coll., no. 353/2001 Coll., no.

198/2002 Coll., no. 263/2002 Coll., and no. 264/2002 Coll., and that the

contested provision, in the version wording in effect at the time the

petition was filed and the version currently in effect, was amended only

by Act no. 425/2003 Coll.
 

16.

The Constitutional Court determined from the electronic library of the

Parliament of the Czech Republic that the bill of Act no. 155/1995

Coll., on Social Security, was presented to the Parliament by the

government on 2 March 1995; the draft was distributed to the deputies as

publication no.1574. The bill was passed at the 32nd session of

Parliament, on 30 June 1995, by resolution no. 727; of the deputies

present, 100 voted in favor, 76 were against, and one abstained.
 

17. The President signed the Act.
 

18.

Thus, the Constitutional Court stated that Act no. 155/1995 Coll. was

passed by the Parliament of the Czech Republic according to

constitutional legislative procedure, was signed by the appropriate

constitutional authorities, and duly promulgated in the Collection of

Laws, going into effect on 1 January 1996.
 

19.

The Constitutional Court determined from the electronic library of the

Parliament of the Czech Republic that the draft of Act no. 425/2003

Coll., amending Act no. 155/1995 Coll., on Social Security, as amended

by later regulations, Act no. 589/1992 Coll., on Premiums for Social

Security and Contributions to State Employment Policy, as amended by

later regulations, Act no. 582/1991 Coll., on the Organization and

Implementation of Social Security, as amended by later regulations and

Act no. 48/1997 Coll., on Public Health Insurance, and amending and

supplementing certain related Acts, as amended by later regulations

(“Act no. 425/2003 Coll.”), which amended the wording of the contested §

32 of the Pension Insurance Act to the wording in effect at the time

the petition was filed and at present, was submitted to the Chamber of

Deputies by the government on 8 July 2003. The bill was distributed to

the deputies as publication no. 396/0. The bill was passed at the 20th

session of the Chamber of Deputies, on 26 September 2003 by resolution

no. 664; out of the 196 deputies present, 100 voted in favor.
 

20.

The Constitutional Court determined from the electronic library of the

Parliament of the Czech Republic that the Chamber of Deputies forwarded

the bill to the Senate on 15 October 2003. The Senate discussed the bill

in a plenary session on 6 November 2003, at its 11th session (4th term

of office), and it was passed by resolution no. 235, which approved the

bill in the wording forwarded by the Chamber of Deputies. Out of 70

senators present, 41 voted in favor.
 

21. The President signed the bill on 26 November 2003.
 

22.

Thus, the Constitutional Court stated that Act no. 425/2003 Coll.,

amending the Pension Insurance Act, including the contested § 32 of the

Pension Insurance Act, was passed by the Parliament of the Czech

Republic according to constitutional legislative procedure, was signed

by the appropriate constitutional authorities, and duly promulgated in

the Collection of Laws, going into effect on 1 January 2004.
 


V
Waiver of Hearing
 

23.

In accordance with § 44 par. 2 of the Act on the Constitutional Court,

no hearing was held, because it could not be expected to clarify matters

further, and all the parties and secondary parties agreed with this

step, expressly or impliedly.
 


VI

Content of Contested Statutory Provisions Consistent with the Constitutional Order
 

24.

The Constitutional Court first considered the question of whether the

contested § 32 of the Pension Insurance Act, as amended, is inconsistent

with Art. 52 of the Constitution. It began with the consideration that

the expert literature gives the Collection of Laws an informational

function, consisting of the fact that the Collection of Laws serves as

the official source for legal regulations (see. K.Klíma and collective

of authors, Komentáře k Ústavě a Listině [Commentary on the Constitution

and the Charter], Pilsen, Vydavatelství a nakladatelství Aleš Čeněk,

s.r.o., 2005, p. 281). Although Act no. 155/1995 Coll., on Pension

Insurance, was – as mentioned above – amended fifteen times while it was

in effect, and since 1995 the complete wording has not been promulgated

in the Collection of Laws after any of the amendments, the

Constitutional Court found that § 32 of the Pension Insurance Act,

amended only by Act no. 425/2003 Coll. was still sufficiently easily

understandable for a generally familiarity with the law, as a rule

guiding the conduct of those for whom it is intended.
 

25.

The petitioner seeks the annulment of the contested provision on the

grounds of inconsistency with Art. 1, Art. 3 par. 1 and Art. 30 par. 1

of the Charter, and also points to Art. 29 and Art. 32 par. 4 of the

Charter in relation to care for children as part of the rights of both

parents.
Art. 1 of the Charter reads: All people are free, have

equal dignity, and enjoy equality of rights. Their fundamental rights

and basic freedoms are inherent, inalienable, non-prescriptible, and not

subject to repeal.
Art. 3 par. 1 of the Charter reads: (1) Everyone

is guaranteed the enjoyment of his fundamental rights and basic

freedoms without regard to gender, race, color of skin, language, faith

and religion, political or other conviction, national or social origin,

membership in a national or ethnic minority, property, birth, or other

status.
Art. 30 par. 1 of the Charter reads: (1) Citizens have the

right to adequate material security in old age and during periods of

work incapacity, as well as in the case of the loss of their provider.
 

26.

Analogously to all democratic constitutional Courts, the Constitutional

Court of the Czech Republic, in proceedings on review of a norm and in

proceedings on constitutional complaints, applies the principle of

proportionality.
 

27. In its

judgment of 20 June 2006, file no. Pl. ÚS 38/04 (published in the

Collection of Laws as no. 409/2006 Coll.), as in its judgment of 13

August 2002, file no. Pl. ÚS 3/02 (published in the Collection of Laws

as no. 405/2002 Coll.), the Constitutional Court stated, and in its

judgment of 27 September 2006, file no. Pl. ÚS 51/06 (published in the

Collection of Laws as no. 483/2006 Coll.) reiterated, that “in cases of

conflict between the fundamental rights or freedoms and the public

interest, or other fundamental rights or freedoms, it is necessary to

evaluate the purpose (aim) of that interference in relation to the means

used, and [the criterion] for this evaluation is the principle of

proportionality (in the wider sense), which can also be called a ban on

excessive interference with rights and freedoms.”
 

28.

In its judgment of 21 January 2003, file no. Pl. ÚS 15/02 (published in

the Collection of Laws as no. 40/2003 Coll.), the Constitutional Court

stated that “equality is a relative category, which requires the removal

of unjustified differences. Therefore, the principle of equal rights

under Art. 1 of the Charter of Fundamental Rights and Freedoms, must be

understood such that legal distinctions in the approach to certain

rights may not be an expression or arbitrariness; however, it does not

give rise to the conclusion that everyone must be granted every right.
 

29.

International human rights instruments and many decisions of

international review bodies are based on the premise that not every

unequal treatment of various subjects can be classified as violation of

the principle of equality, i.e. as illegal discrimination against one

group of subjects in comparison with other subjects. For such violation

to occur, several conditions must be met. Various subjects in the same

of comparable situation must be treated in a different manner, in the

absence of objective and reasonable grounds for applying different

procedures.
 

30. This

deliberation leads the Constitutional Court to conclude that a

particular legal framework that gives an advantage to one group or

category of persons compared to another, cannot, in and of itself, be

said to violate the principle of equality. The legislature has some room

for discretion about whether to implement such preferential treatment.

It must see to it that the preferential approach is based on objective

and reasonable grounds (a legitimate legislative aim), and that there is

a proportional relationship between that aim and the means used to

achieve it (legal advantages).
 

31.

In the area of civil and political rights and freedoms, which is

immanently characterized by the obligation of the state to refrain from

interfering in them, there is generally only minimal room for

preferential (i.e. essentially active) treatment of certain subjects. In

contrast, in the area of economic, social, cultural and minority

rights, where the state is often obligated to active intervention that

is meant to remove conspicuous aspects of inequality between certain

groups in a complex, socially, culturally, professionally, or otherwise

stratified society, the legislature logically has much more room at its

disposal for implementing its concept of the permissible limits of de

facto inequality. Therefore, it chooses preferential treatment much more

often.”
 

32. Another of the

principles applied in the event of conflict of fundamental rights, or

the public good, as principles, as opposed to the case of a conflict of

norms of sub-constitutional law, [by which] the Constitutional Court is

guided [is] the directive to optimize, i.e. the postulate to minimize

any limitation of a fundamental right or freedom, or the public good.

Its content is the maxim that, if one concludes that it is justified to

give priority to one over another of two colliding fundamental rights,

or public goods, a necessary condition of the final decision is to make

use of every opportunity to minimize the interference in one of them.

The directive to optimize can be normatively derived from Art. 4 par. 4

of the Charter, under which the fundamental rights and freedoms must be

preserved in employing the provisions concerning limitations on the

fundamental rights and freedoms, and thus applies analogously in the

case of limiting the consequences of a conflict between them (see

judgment of the Constitutional Court of 28 January 2004, file no. Pl. ÚS

41/02, published in the Collection of Laws as no. 98/2004 Coll., or the

judgment of 27 September 2006, file no. Pl. ÚS 51/06, published in the

Collection of Laws as no. 483/2006 Coll.).
 

33.

The Constitutional Court does not share the opinion that the contested

provision is inconsistent with Art. 1 and Art. 3 par. 1 of the Charter

in relation to Art. 30 par. 1 of the Charter, cited by the petitioner,

and that annulling § 32 of the Pension Insurance Act would implement

equality between the sexes in relation to the right to material security

in old age. If the contested provision were annulled, a certain

advantage for women/mothers would be removed, without, as part of the

“equalization,” men/fathers acquiring the same advantages as

women/mothers have. The Constitutional Court functions only as a

negative legislature, and its intervention regarding the contested

provision would thus only violate the principle of protection citizens’

confidence in the law, or perhaps interfere in legal certainty, or

legitimate expectation. In this context, the Constitutional Court states

that in this case a conflict between the positive law and justice has

not arisen.
 

34. The

Constitutional Court then evaluated the approach to giving advantages,

which was based on objective and reasonable grounds. It took into

account historical and sociological grounds, and comparative law. Here

it refers to the wealth of arguments arising from the statements of the

parties and from those the Court requested, and found that the contested

provision comes from the existence of a legitimate aim.
 

35.

The Constitutional Court took into account the fact that § 32 of the

Pension Insurance Act is not, as stated above, an exception, from a

comparative view of the European Union countries, even though the

general trend is toward the future removal of different retirement ages

for men and women, as is also being discussed in the Czech Republic.
 

36.

The Constitutional Court also did not find an expression of legislative

arbitrariness in passing the current wording of § 32 of the Pension

Insurance Act. it concluded that if it annulled the contested provision

it would deviate from the principle of minimizing interference, because a

solution for the unequal position of men and women in social security

insurance cannot be found without a comprehensive and wisely timed

adjustment of the entire system of pension insurance that would find

socially manageable and economically acceptable standpoints, which need

to be implemented as part of a complete reform of the pension system. It

must be added, as an obiter dictum, that any elimination of inequality

between men and women in the area of pension insurance should fully

reflect the changes in social relationships in society.
 

37.

Finally, the Constitutional Court points out, in relation to the

category of equality, that “in the social process these values perform

the function of ideal type categories, expressing ultimate aims, which

cannot completely overlap with social reality, and which can be achieved

only in an approximate manner.” (see the judgment of 7 June 1995, file

no. Pl. ÚS 4/95, published in the Collection of Laws as no. 168/1995

Coll.).
38. In view of the fact that the Constitutional Court agreed

with the arguments leading to the conclusion that objective and

reasonable grounds for applying a differential approach existed, it

concluded that § 32 of the Pension Insurance Act is not inconsistent

with Art. 1, Art. 3 par. 1 and Art. 30 par. 1 of the Charter of

Fundamental Rights and Freedoms, and therefore it denied the petition to

annul it (§ 70 par. 2 of Act no. 182/1993 Coll.).

Instruction: Judgments of the Constitutional Court cannot be appealed.

Brno, 16 October 2007
 

 



Dissenting Opinion of Judge Vlasta Formánková
This

dissenting opinion, which I am filing under § 14 of the Act on the

Constitutional Court, dissents both from the verdict of the judgment and

from the legal arguments presented in the reasoning of the judgment.
 

Material

security in old age is the consequence of each individual’s life-long

activity and his responsible approach to old age. Under the contested §

32 of Act no. 155/1995 Coll., on Pension Insurance, as amended by later

regulations (“Act no. 155/1995 Coll.”), the retirement age is different

for men and women. For women, the retirement age is differentiated

according to the number of children raised, and so they are entitled to

old-age pensions earlier.
 

The

EU member states have not yet unified the retirement age, not only

among themselves, but also between groups of men and women. Article 7 of

Council Directive 79/7/EHS of 19 December 1978 (the “Directive”)

excludes from its area of application the setting of the retirement age

and the consequences that may arise for other benefit payments and

advantages provided as part of pension insurance to persons who raised

children. That means that the different retirement age for men and women

is still permissible in the pension system.
 

Nevertheless,

or precisely because of that, it is desirable to equalize the social

position of women and men caring for children, by taking this into

account when setting the conditions for entitlement to an old-age

pension.
 

I cannot agree

with judgment file no. Pl.ÚS 53/04. In my opinion, the contested § 32 of

Act no. 155/1995 Coll. establishes an unequal position for women and

men in pension insurance, and the claim that annulling the entire § 32

of Act no. 155/1995 Coll. would interfere in other institutions related

to the retirement age, cannot stand in light of the fact that the

Constitutional Court can delay going into effect of the annulment so

that such interference will not occur. I also think that the

Constitutional Court should also consider the requirement for meeting

the constitutional principle of equality of women and men by removing

surviving differences based on gender from the point of view of the

conclusions stated in judgment Pl.ÚS 42/04. In this situation – in

connection with Art. 1 and Art. 3 par. 1 of the Charter of Fundamental

Rights and Freedoms – the consequences involve discrimination, precisely

in relation to the right to adequate material security in old age under

Art. 30 par. 1 of the Charter. It is evident that different conditions

for men and women in the area of pension insurance can exist. However,

it is precisely because of this that taking into account the personal

care for a child should apply to all the care-providing citizens,

regardless of their sex.
 

In

my opinion the contested § 32 of Act no. 155/1995 Coll. establishes

impermissible discrimination against men in the right to material

security in old age, and is thereby inconsistent with Art. 30 par. 1 in

connection with Art. 41 of the Charter of Fundamental Rights and

Freedoms.

Brno, 17 October 2007
 


 
Dissenting Opinion of Judge Eliška Wagnerová

I

disagree with the majority opinion, because I believe that my esteemed

colleagues did not fully appreciate the grounds for the

unconstitutionality of the contested provision. The actual, unusually

sparse reasoning of the judgment, contained only from point 33 to part

of point 36, the rest of that point containing a remarkable obiter

dictum, is based on tradition, although it does not expressly name it,

but, on the contrary, shields itself with, in my opinion, a

problematical interpretation of a comparative study provided by the

Ministry of Labor and Social Affairs. It is appropriate to point out

here that the European Court of Human Rights relatively unambiguously

declines to recognize the legitimacy of the disputed family law

framework by reference to tradition, and, on the contrary, points to the

dynamics in the concept of rights and relationships related to the

family (see, e.g. the decision of 22 Feburary 1994, in Burghartz v.

Switzerland, or the decision of 16 November 2004 in Ünal Tekeli v.

Turkey).
 

In my assessment,

we cannot conclude from the comparative material provided to us that the

contested provision is not an exception in EU countries, as the

judgment does (point 35). The judgment refers to the different

retirement age for women and men existing in several EU countries, but

that difference is not the problem. On the contrary, the problem is

that, as compensation for raising children, the retirement age is

reduced, according to the number of children raised, by deducting from 1

to 4 years from the basic retirement age, only for women, not for men.

As the statement from the Ministry of Labor and Social Affairs

indicates, this type of inequality, relevant for the present case,

appears only in Slovakia. In other EU states it is possible to subtract

years for raising children, but taking facts into account, it is applied

to whichever of both parents raised the child and took care of it. It

must be emphasized, that the years are subtracted from the basic

retirement age, i.e. one set differently for men and women, and that

difference is not disputed, as the judgment attempts to convince us

(points 34 and 35).
 

Unquestionably,

as the text of the contested provision clearly indicates, the cited

advantage, of subtracting years from the basic retirement age, is tied

to the raising of children, i.e. this is not some sort of bonus for

giving birth to a child, which, of course, could not be awarded to men.

However, insofar as the cited advantage is tied to and conditional on

the raising of children, it is simultaneously unambiguously tied to the

exercise of parental rights and fundamental rights, in the form of

caring for children and raising children, which are guaranteed to both

parents by Article 32 par. 4 of the Charter, and therefore they can be

limited only by statute, if this is also a measure which is necessary in

a democratic society and if the limitation is proportional. One can

even conclude, that the reduced retirement age according to the number

of children raised, is a clear expression of interpretation of parental

rights that can be described as status positivus.
 

Thus,

the majority permitted the limitation of the positively interpreted

parental right of men, without applying a strict test concerning the

possibility of such a limitation, even though there was a suspicion of

discrimination against men based on their gender. Generally,

differentiation based on sex should always be considered suspect grounds

for differentiation (Ovey, C., White R., European Convention on Human

Rights, Oxford University Press 2006, cited from B. Čechová, ch. VI.,

p.167 in Rovnost a diskriminace [Equality and Discrimination], M.Bobek,

P.Boučková, Z.Kühn (eds.), C.H.Beck, Praha, 2007), and, as such, should

always be subject to especially thorough review (a strict test). The

Constitutional Court applied this strict test in the matter Pl. ÚS

42/04, where it also reviewed a provision of the Pension Insurance Act,

also differentiating on the basis of sex, and it then concluded that the

contested provision had to be annulled. In today’s case, the majority

has diverged from the opinion expressed in that matter, without

explaining why (see the rule that the Constitutional Court is bound by

its own case law, and the possibilities for diverging from it, defined

in judgment Pl. ÚS 11/02).
 

In

the present matter, there could be room to diverge from the

abovementioned judgment, although only in the sense of strengthening the

argumentation, precisely in the abovementioned direct connection of the

reviewed statutory provision to the parental rights guaranteed by Art.

32 par. 4 of the Charter, which rules out generally and abstractly

defined differentiation between both parents. If there is

differentiation between parents in practice, then it can only be by an

individual act, based on the facts of a particular case – i.e., in this

case, according to which of the parents actually provided care for the

child and raised it. The manner in which the factual circumstances used

to establish a reduction in retirement age would be determined is a

matter for the legislature to decide.