CYIL vol. 10 (2019)

KATEŘINA ŠIMÁČKOVÁ CYIL 10 ȍ2019Ȏ both the need to respect the relatively vast discretion of the legislature and the need to avoid its possible excesses and consists of four steps. The first two steps consist in defining the meaning and essence of social rights, i.e. its essential content, and the assessment whether the law does not affect the essential content – in this case it would be necessary to apply a usual proportionality test. If it is not the case, it is assessed in a third step whether the legal regulation pursues a legitimate objective, that means whether it is not an arbitrary considerable reduction in the overall standard of fundamental rights. The fourth step is then consideration of whether the legal means used to achieve a legitimate objective is reasonable (rational), though not necessarily the best, wisest, most suitable or most effective. 23 The definition of that essential content (core, minimum standard) of certain rights should then be based on the values of human dignity, where inspiration by the German Federal Constitutional Court is then referred to. 24 This differentiation of the rationality test corresponds to the difference between the strict and basic tests of the merits as explained by Boučková based on the case- law of the European Court of Human Rights: “… it is possible to speak in a simplified manner about the tests of the merits that pursue the exclusion of arbitrariness by the legislature in the strict sense of the word, and sufficient for them is evidence of a rational relationship between the legislative measure and the pursued objective of the legal regulation (basic test of the merits). In addition, the tests of the merits can pursue the exclusion of arbitrariness by the legislature in broad terms and are satisfied with the evidence of minimum interference of statutory measures in the affected rights. These tests therefore additionally pursue some form of evidence of the adequacy of legal regulation (strict proportionality tests).” 25 According to Wintr, using a less stringent rationality test is a sign of reserved attitude of the Constitutional Court in relation to social rights. 26 Based on the above, it can be summed up that the social rights enshrined in the Charter of Fundamental Rights and Freedoms are fundamental rights under court protection 27 and, in general, they can be enforced in courts or other public authorities. Their judicial enforceability (for the rights referred to in Articles 26, 27 (4), 28 to 31, 32 (1) and (3), 33, and 35 of the Charter) is limited so that they can only be exercised within the confines of the laws implementing them. The constitution forming body then determined what social rights should be constitutionally protected, but a more detailed definition of specific claims has been passed to the legislature. The legislature must then respect and preserve the essential content or core of those social rights. Above and beyond this essential core, the discretion and democratic will of the legislature, or the parliamentary majority, may be widely manifested. This means that the constitutionally guaranteed social rights can generally cover a wide set of potential claims that could lead to their fulfilment; but not all of these claims must necessarily be exercised by law. We can therefore distinguish between the general (potential) 23 See, for instance, the judgment, file No. Pl. ÚS 54/10, of 24 April 2012 (N 84/65 CC Coll. 121; 186/2012 Coll.), item 48; or the judgment, file No. Pl. ÚS 36/11, of 20 June 2013 (N 111/69 CC Coll. 765; 238/2013 Coll.), item 56. 24 See, for instance, the above cited paragraph 135 of judgment, 1 BvL 1, 3, 4/09 – Harz IV, which can be found at first in a dissenting opinion of judge Jan Musil on judgment file No. Pl. ÚS 8/07 and then also item 47 of judgment file No. Pl. ÚS 55/13. 25 BOUČKOVÁ, P. Rovnost a sociální práva . [Equality and social rights] Prague: Auditorium, 2009, p. 84. 26 WINTR, J. In WAGNEROVÁ, E. et al. Listina základních práv a svobod: komentář. [Charter of Fundamental Rights and Freedoms: Commentary] Prague: Wolters Kluwer, 2012, p. 836. 27 Within the meaning of Article 4 of the Constitution of the Czech Republic, which stipulates that the fundamental rights and freedoms shall enjoy the protection of judicial bodies.

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