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Constitutional court insists on its previous case-law concerning the so-called slovak pensions

Constitutional Court, Brno, 15 February 2012 (TZ 8/12)

The Constitutional Court of the Czech Republic announced on 14th February its judgement file No. Pl. US 5/12 by which it annulled previous judgements of Supreme Administrative Court, Regional Court in Hradec Kralove and a decision of Czech Social Security Administration (hereinafter „CSSA“). By the contested judgements and decisions, the pension of the petitioner had been calculated regardless of the previous case-law of the Constitutional Court concerning the so-called Slovak pensions.
The petitioner, citizen of the Czech Republic, was employed by Czechoslovak State Railways, with the place of performance at first on the territory of the Czech Republic and between 1969 and 1993 in Slovakia. The CSSA granted the petitioner a pension in the amount corresponding to the period of work performed on the territory of the Czech Republic without taking into consideration the interpretation of art. 20 of the Treaty between the Czech Republic and Slovak Republic on Social Security of 29 October 1992, made in the past by the Constitutional Court with respect to the principle of equality of citizens. The case-law of the Constitutional Court has actually up to now deduced the duty to pay along with the pension a so-called compensation allowance in the amount corresponding to the amount of pension the person in question would be eligible for, had all periods of work performed in the territory of the former Czechoslovak federation been considered under Czech law and in Czech pension system.
This issue was subject of a preliminary question raised in different proceedings by Supreme Administrative Court and was addressed by the Court of Justice of the EU in its judgement file no C-399/09 of 22 June 2011, Landtova vs. CSSA. According to the Court of Justice, the case-law of the Constitutional Court regarding Slovak pensions is in fact contradictory to the prohibition of discrimination on the grounds of citizenship, however, it may be accepted as long as the rules on payment of the compensation allowances apply not only to Czech citizens, but also to migrating citizens of other EU member states. In response to the afore-mentioned judgement, the Czech legislator amended Act. No. 155/1995 Coll., on Pension Insurance, by inserting in it a new provision of § 106a. According to this provision, payment of any allowances or compensations for periods of pension insurance obtained before 1 January 1993 (note: the date of formation of independent Czech Republic and Slovak Republic), that are upon the above-mentioned Treaty considered periods of Slovak pension insurance, is banned.
In its judgement, the Constitutional Court first expressed its view on the conclusions following from the judgement of the Court of Justice of the EU. In the introduction, the Constitutional Court summarized its previous case-law concerning the relationship between national and European law and above all emphasised the thesis (which follows also from the doctrine of the Federal Constitutional Court of Germany) under which constitutional courts maintain their role of supreme guardians of constitutionality even in the realms of the EU and even against potential excesses on the side of EU bodies. In this respect, the Constitutional Court believes that a European regulation which governs co-ordination of pension system among the member states may not be applied to an entirely specific situation of a dissolution of the Czechoslovak federation and to consequences stemming thereof. The Constitutional Court wishes to emphasise that the period of employment for an employer based in the territory of today´s Slovak Republic cannot be considered a period of employment in abroad (besides, social security had been subject to federal competence in the entire period of existence of the Czechoslovak federation). Therefore, the Constitutional Court expressed the view that matters of social security and claims following from them did not in the case of so-called Slovak pensions contain a foreign element which is a prerequisite for the application of the co-ordination regulation. This issue cannot be compared to consideration of social security claims with respect to acknowledgement of periods obtained in different states, whilst it is the issue of consequences of dissolution of the Czechoslovak federation and of division of costs on social security between the successor states.
In the view of the Constitutional Court, the Court of Justice of the EU accidentally overlooked these facts which otherwise must lead to the conclusion of inapplicability of European law in the instant situation. As a result of this, an excess of the European body and a conduct ultra vires occurred. The Constitutional Court expressed the conviction that the false conclusions of the Court of Justice of the EU had resulted also from the insufficient, wrong and in this respect unprecedented statement of the government of the Czech Republic which itself had stated in the proceedings before the Court of Justice of the EU that the case-law of the Constitutional Court violates European law.
As far as the amendment of Act No. 155/1995 Coll. is concerned, the Constitutional Court stated that as its purpose was to implement judgement of the Court of Justice of the EU which per se was incorrect, the provision of the relevant national law is obsolete (on the grounds of the legal principle under which the act itself ceases to exist after its purpose had extinguished). Therefore, the Constitutional Court concluded that administrative courts and the CSSA had by their decisions violated Art. 30 par 1 with Art. 4 par 4 and Art. 3 par 1 of the Charter of Fundamental Rights and Freedoms.
Judge Jiří Nykodým filed a dissenting opinion on the verdict of the judgement.