CYIL vol. 10 (2019)

KATEŘINA ŠIMÁČKOVÁ

CYIL 10 ȍ2019Ȏ

B. On the discrimination against men caring for children The Constitutional Court also notes that the legal regulation of old-age pensions in several of its aspects envisages that the main person caring for the children is mother and that is why the legal regulation contains certain advantages and automatic mechanisms favouring mothers over fathers. The Constitutional Court first responded to the legislation under which for the purposes of pension insurance a man is considered a person caring for a child aged up to four years only if he files an application for insurance within two years of the termination of the child care. Such obligation is not imposed by the law upon the women caring for children. Based on its judgment of 6 June 2006, file No. Pl. ÚS 42/04 40 , the Constitutional Court considers the institution of compulsory filing an application for insurance discriminatory against men, and therefore annulled the contested legislation contained in the Act on Pension Insurance and the Organisation and Implementation of Social Security. According to the Constitutional Court, the contested provisions greatly violates the principle of equality and does not satisfy the second step of the test (of necessity), and other legislative means could be used to achieve the same objective, while less affecting the principle of equality between the sexes. As a result, therefore, there was discrimination in relation to the right to access to social security in old age, as the contested regulation without reasonable and objective reason disadvantaged based on sex one group of persons over another, which is otherwise in the same legal position. Four dissent opinions were made on the judgment, 41 arising from that the current legal situation is not discrimination against men, but rather favouring women, for which there are legitimate reasons. They contain also the views rejecting the full equality of both parents in child care or directly invoking the traditionally emphasised or psychologically substantiated deeper relationship between a mother and children as compared with the relationship with a father. In particular, however, they point out that it is an administratively demanding process and, therefore, men – fathers will not be burdened too much by the procedure. A year after, the Constitutional Court then addressed the uneven age limit for entitlement to old-age pension for persons caring for children based on sex, namely the regulation according to which after the date of 31 December 2012, the retirement age for men was 63 years of age and for women 59-63 years of age according to the number of children raised. 42 Based on its judgment of 16 October 2007, file No. Pl. ÚS 53/04 43 , the Constitutional Court then found that the different retirement ages for men and women depending on the number of children is constitutionally conforming and, therefore, did not annul the contested provisions. It proceeded from that a legal regulation that favours one group or category of persons over others cannot, therefore, be identified as such as a violation of the principle of equality. The legislature has certain discretion to deliberate whether to enshrine such preferential treatment. In doing so, the legislature must ensure that the preferential approach is based on objective and reasonable grounds (a legitimate objective of the legislature) and that there is a proportionate relationship between this objective and the means to achieve it (legal advantages). If the contested provision is annulled by the court that has a role of negative legislature, some advantages would have been taken away from women – mothers, without men – fathers 40 (405/2006 Coll., N 112/41 CC Coll. 379).

41 Stanislav Balík, Vladimír Kůrka, Dagmar Lastovecká, and Jan Musil. 42 then valid Section 32 of Act No. 155/1995 Coll., on pension insurance. 43 (341/2007 Coll., N 160/47 CC Coll. 111).

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