CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE RIGHTS OF THE ELDERLY IN THE CASEǧLAW OF THE CONSTITUTIONAL COURT … insured persons with adequate material security, reflecting reasonably the principle of merits, that means fulfilling the stimulating function of the social policy. The Constitutional Court concludes that the framework specified in the law, enshrining two reduction limits in the existing levels accompanied by the existence of a system of transfer payment to the pension insurance system without effective “upper limits”, creates a significant disproportion between the amount of contribution to the insurance system, the amount of income, and the amount of granted pension benefits for the part of insured persons, which violates the constitutionally enshrined principle of equality. The criterion of constitutional conformity is then the “proportionality” of consequences of the chosen framework where the limiting corrective of the principle of merits is the “proportionality” of minimum material security and, at the same time, where the limiting corrective also represents the imperative of equality. With the existence of a whole range of pension systems and the designed forms of pension benefits, it is necessary to choose an alternative into which all the principles of social policy and the pension system that will consistently respect the constitutional principles will be projected. Two dissenting judges 38 were dissatisfied that the majority by adopting the judgment of the Constitutional Court set foot on the territory of social policy which only belongs to the legislature. They are also of the opinion that the pension system has no relevant provisions for influencing to the major extent the individual compensation rate for people with higher incomes in the long term. Any increase in the pensions of one income group must necessarily lead either to a reduction of pensions for other income groups or to an increase in the debt of the system or in social tax. According to them, there is only one way to create a material base for increasing pensions, and that is increasing insurance contributions. They claim that it leads to the question whether the tension between the persons classified under income levels (and according to their payments into the system) will not be only replaced by the tension between the economically active people and those inactive, which can constitute a dangerous test of maintaining a broad degree of intergenerational solidarity. In relation to this judgment, Wintr points to that it applies a legal opinion from a dissenting opinion on judgment Pl. ÚS 14/02 (according to which the right to health care implies the insured person’s basic right to the component of equivalence in the public health insurance transparently determined by the legislature, namely to the extent that preserves the nature of legal institution of insurance, and does not change it to tax) not only to the right to health care but also to the right to adequate material security in old age, for which the Charter of Fundamental Rights and Freedoms does not prescribe a public insurance system in contrast to the care for health. Wintr notes that the fact that the Charter of Fundamental Rights and Freedoms does not do that in relation to social security in old age (contrary to health insurance) gives the legislature larger room for choice as to ensuring the fundamental rights under Article 30 (1) of the Charter of Fundamental Rights and Freedoms and relatively broad discretion on a reasonable balance between the principle of solidarity and the principle of merits. However, according to him, this means that the public insurance is traditional and probably the most effective way of ensuring those rights. 39

38 Jan Musil and Jiří Nikodým. 39 WINTR, J. In WAGNEROVÁ, E. et al. Listina základních práv a svobod: komentář. Prague: Wolters Kluwer, 2012, p. 633.

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