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DECIDES:
1. The provisions of Articles 4 paragraph (2) letter b), 9 paragraph (1) and 13 paragraph (1) letter c) of Law no. 289-XV of July 22, 2004 on disability benefits are recognized as constitutional. temporary work and other social insurance benefits in the wording of Law no. 3 of January 15, 2012 and, respectively, of Law no. 56 of June 9, 2011.
2. The provisions of article 4 paragraph (2) letter a) of Law no. 289-XV of July 22, 2004 on allowances for temporary incapacity for work and other social insurance benefits, in the wording of Law no. 56 of 9, are declared unconstitutional. June 2011.
3. This Decision shall be final, shall not be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the "Official Gazette of the Republic of Moldova".
JUDGEMENT
FOR THE CONTROL OF CONSTITUTIONALITY
the provisions of Articles 4 (2) (a) and (b), 9 (1) and 13 (1) (c) of Law no. 289-XV of July 22, 2004 on the allowances for
temporary incapacity for work and other social security benefits, with subsequent amendments
(Notification no. 39a / 2011)
CHIŞINĂU
April 10, 2012
On behalf of the Republic of Moldova,
The Constitutional Court, ruling on:
Mr Alexandru TĂNASE, President,
Mr Petru RAILEAN, Judge-Rapporteur,
Mr Dumitru PULBERE,
Mr. Victor PUŞCAŞ,
Mrs. Elena SAFALERU,
Ms Valeria ŞTERBEŢ, Judges,
with the participation of Mrs. Tatiana Oboroc, clerk,
Having regard to the notification lodged on 29 December 2011,
registered on the same date and completed on 15 February 2012,
Having considered the above referral in plenary,
Having regard to the documents and works of the file,
Make the following decision:
PROCEDURE
1. At the origin of the case is the notification submitted to the Constitutional Court on December 29, 2011, pursuant to articles 135 par. (1) letter a) of the Constitution, 25 para. (1) lit. g) of the Law on the Constitutional Court and 38 paragraph (1) letter i) of the Code of Constitutional Jurisdiction, by the parliamentary ombudsman Aurelia Grigoriu, for the control of the constitutionality of the provisions of articles 4 (2) letters a) and b), 9 paragraphs (1) and 13 paragraphs (1) letter c) of Law no. 289-XV of July 22, 2004 regarding the indemnities for temporary incapacity for work and other social insurance benefits, in the wording of laws no. 56 of June 9, 2011 and no. 3 of January 15, 2012, by which the conditions for granting the indemnity for temporary incapacity for work were modified.
2. The complainant alleged, in particular, that charging the employee and the employer part of the allowance for temporary incapacity for work and reducing the amount of the allowance, operated by the contested rules, infringed the right to social protection and the right to property, being incompatible with the provisions of Articles 1 paragraph (3), 15, 18, 47 combined with Article 16, with the provisions of Article 46 combined with Article 54, as well as with Article 126 paragraph (2) letter g) of the Constitution.
3. By the decision of the Constitutional Court of February 9, 2012, the notification was declared admissible, without prejudice to the merits of the case.
4. On February 15, 2012 the notification was completed with the request to extend the object of the notification on the amendments operated in article 4 of Law no. 289-XV by Law no. 3 of January 15, 2012.
5. In the process of examining the referral, the Constitutional Court requested the opinions of the Parliament, the Government, the ministries, etc.
6. The author of the referral personally participated in the public plenary session of the Court. The Parliament was represented by Mr Sergiu Chirică, Senior Consultant in the Legal Department of the Parliament Secretariat. The Government was represented by Mrs Valentina Buliga, Minister for Labor, Social Protection and the Family, and Mr Vladimir Grosu, Deputy Minister of Justice.
RELEVANT LEGISLATION
7. The relevant provisions of the Constitution are the following:
Article 16
Equal
"1) Respect and protection of the person is a primary duty of the state.
(2) All citizens of the Republic of Moldova are equal before the law and public authorities, regardless of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin. "
Article 46
The right to private property and its protection
"(1) The right to private property, as well as the claims on the state are guaranteed.
(2) No one may be expropriated except for a cause of public utility, established according to the law, with right and prior compensation. [...] "
Article 47
The right to social assistance and protection
"(1) The state is obliged to take measures so that any person has a decent standard of living, which ensures the health and well-being of himself and his family, including food, clothing, housing, medical care and social services. necessary.
(2) Citizens have the right to insurance in case of: unemployment, illness, disability, widowhood, old age or in other cases of loss of means of subsistence, as a result of circumstances independent of their will. [...] "
Article 54
Restriction on the exercise of certain rights or freedoms
"(1) Laws that would suppress or diminish the fundamental rights and freedoms of man and citizen cannot be adopted in the Republic of Moldova.
(2) The exercise of rights and freedoms may not be subject to restrictions other than those provided by law, which correspond to the unanimously recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic welfare, public order, in order to prevent disturbances. and mass crimes, the protection of the rights, freedoms and dignity of others, the prevention of the disclosure of confidential information or the guarantee of the authority and impartiality of justice.
(4) The restriction must be proportionate to the situation which gave rise to it and may not affect the existence of a right or freedom. "
8. The relevant provisions of Law no. 289-XV of July 22, 2004 regarding the indemnities for temporary incapacity for work and other social insurance benefits, with the subsequent modifications and completions, are the following:
Article 4
Sources of financing social insurance benefits
„(1) The payment of the social insurance benefits provided in art. 5 paragraph (1) letters b), c), d), e), f), g), h) shall be made entirely from the social insurance budget of state.
(2) The payment of the indemnity for temporary incapacity for work caused by common diseases or unrelated accidents at work, except in the cases provided for in paragraph (3) of this article, shall be made as follows:
a) the first calendar day of temporary incapacity for work shall be borne by the insured person;
b) the second, third and fourth calendar day of temporary incapacity for work shall be paid from the financial means of the employer, and the unemployed shall be paid from the means of the state social insurance budget;
c) starting with the fifth calendar day of temporary incapacity for work, the indemnity is paid from the means of the state social insurance budget.
(3) Payment of the allowance for temporary incapacity for work caused by tuberculosis, AIDS, cancer of any type or the occurrence of the risk of termination of pregnancy, as well as the payment of allowance for temporary incapacity for work to pregnant women who are registered in medical institutions -sanitary, is carried out entirely from the state social insurance budget, starting with the first calendar day of temporary incapacity for work. "
Article 9
The period for which the allowance is granted for temporary incapacity for work
"1. The period for which compensation for temporary incapacity for work is granted shall not exceed 180 days in a calendar year. The payment of the indemnity is made under the conditions of art.4. [...] "
Article 13
The amount of the allowance for temporary incapacity for work
'1. The monthly amount of the allowance for temporary incapacity for work shall be determined differently, depending on the duration of the contribution period, as follows: [...]
c) 90% of the calculation base established according to art. 7 - in case of a contribution period of over 8 years. [...] "
IN LAW
9. On June 9, 2011 and January 15, 2012, the Parliament adopted amendments to Law no. 289 of July 22, 2004 on allowances for temporary incapacity for work and other social insurance benefits.
10. By Law no. 56 of June 9, 2011, the legal provision amending the payment of social insurance benefits in full from the state social insurance budget was amended (Article 4 of the contested law). Thus, through the amendments made, the sources of financing the indemnity for temporary incapacity for work caused by common diseases or unrelated accidents at work (except in cases of tuberculosis, AIDS, cancer of any kind or the risk of termination of pregnancy, as well as in the case of pregnant women who are registered in medical institutions) have been established as follows:
- the first calendar day of temporary incapacity for work is borne by the insured person;
- the second calendar day of temporary incapacity for work is paid from the employer's financial means;
- starting with the third calendar day of temporary incapacity for work, the indemnity is paid from the means of the state social insurance budget.
11. Also, the percentage of the basis for calculating the allowance for temporary incapacity for work was modified in the case of a contribution period of more than 8 years, reducing from 100 to 90%.
12. At the same time, the Court notes that, on 15 January 2012, by Law No 3, the Parliament made further amendments to Article 4 of the Law on Temporary Disability Allowances and Other Social Insurance Benefits, in respect of sources of financing the indemnity for temporary incapacity for work, being charged to the employer the payment of three calendar days of temporary incapacity for work of the employee, the means of the state social insurance budget to be used starting with the fifth day of temporary incapacity for work.
13. Examining the legal texts of the amendment, the Court accepts the argument of the complainant that the contested norms did not undergo substantial changes after the adoption of Law no. 3 of January 15, 2012, so that the object of the referral was not exhausted.
14. Therefore, the Constitutional Court will verify the constitutionality of articles 4 paragraph (2) letter a), 9 paragraph (1), 13 paragraph (1) letter c) of Law no. 289-XV of July 22 2004 regarding the indemnities for temporary incapacity for work and other social insurance benefits in the wording of Law no. 56 of June 9, 2011 and of article 4 paragraph (2) letter b) of the same law in the wording of Law no. 3 of January 15, 2012.
15. The Court notes that the prerogative with which it was vested by Article 135 para. (1) lit. a) of the Constitution implies the establishment of the correlation between the legislative norms and the text of the Constitution, taking into account the principle of its supremacy.
16. The Court notes that, in essence, the issues subject to constitutional review can be summarized as follows:
a) diversification of the source of payment - the full participation of the state was replaced by the tripartite division of the burden between employee, employer and state;
b) application of a differentiated treatment to the payment of the indemnity;
c) decrease of the amount of the indemnity for temporary incapacity for work.
17. In this context, the Court will examine the alleged violation of Article 47 in conjunction with Article 54 of the Constitution - in so far as the State diminishes the social protection of citizens, in Article 47 in conjunction with Article 16 of the Constitution - in so far as the application of differential treatment to citizens when granting the indemnity for temporary incapacity for work, and the violation of Article 46 combined with Article 54 of the Constitution - in terms of interference with property rights, the other constitutional rules invoked by the author being irrelevant to the present case.
I. ALLEGED VIOLATION OF ARTICLE 47 IN COMBINATION WITH ARTICLE 54 OF THE CONSTITUTION
18. The complainant claims that the rules subject to constitutional review violate Article 47 of the Constitution, which provides as follows:
"(1) The state is obliged to take measures so that any person has a decent standard of living, which ensures the health and well-being of himself and his family, including food, clothing, housing, medical care and social services. necessary.
(2) Citizens have the right to insurance in case of: unemployment, illness, disability, widowhood, old age or in other cases of loss of means of subsistence, as a result of circumstances independent of their will. "
A. Arguments of the author of the notification
19. The complainant considers that, through the changes made, the person's burden doubles in case of insured risk, he has to bear on his own the first day of temporary incapacity for work, although this risk is compulsorily insured by paying contributions to the budget state social insurance.
20. The complainant also considers that the changes made, which provide for the payment by the employer of three calendar days of temporary incapacity for work of the employee, are equivalent to a double taxation of the employer.
21. According to the author of the notification, these regulations result in a diminution of the social protection of citizens in case of illness, a restriction that is not proportional to the situation that determined it and affects the existence of the right, contrary to Article 54 of the Constitution.
B. Arguments of the authorities
22. The authorities invoke the wider margin of appreciation enjoyed by the state in the field of social rights.
23. According to the authorities, the changes made were necessary to optimize expenditure on the payment of pensions and social security benefits.
24. Also, in the view of the authorities, the contested rules have as their objective also the responsibility of employees and employers in the process of preventing the loss of work capacity and recovery, as well as in detecting the abuse of sick leave.
C. Findings of the Court
1. General principles
25. The Court notes that the contested rules concern rights belonging to the category of social rights. Their conceptual characteristic consists in the fact that they do not have an unconditional character and that they can be requested only within the limits provided by law. This characteristic gives the legislator the authority to establish specific conditions for the exercise of social rights.
At the same time, the implementation of legal provisions cannot be in conflict with constitutional principles, so that the relevant legal norms cannot deny or extinguish the constitutionally guaranteed social rights. Thus, when implementing the constitutional provisions guaranteeing social rights, the legislator must respect article 54 par. (4) of the Constitution, which stipulates that, when the provisions regarding the restriction of fundamental rights and freedoms are imposed, the existence and substance of these rights and freedoms must be preserved.
26. The Court also notes that the peculiarity of social rights is that they depend mainly on the economic situation of the State. The level at which they are provided reflects not only economic and social development, but also the relationship between the state and the citizen, based on mutual responsibility and the recognition of the principle of solidarity.
The degree to which the principles of responsibility and solidarity find expression in the legal order of the state also determines the social character of the state. The weight that the principle of solidarity acquires depends on the level of ethical appreciation of coexistence in society, on the culture of society, but also on the individual's perception of the sense of justice and the feeling of unity with others and sharing their fate. a certain period of time and place.
27. The benefits provided under the social protection system come from the state budget, and the responsibility for these benefits belongs entirely to the state. As the responsibility for the provision of benefits lies with the State, it must be able to establish the specific conditions for such benefits. In this sense, the state cannot afford the irresponsibility of becoming a debtor unable to honor its commitments.
However, those circumstances cannot, however, prejudice the very existence of specific social rights or, consequently, impede their exercise. With these limits in mind, the legislator enjoys a fairly wide margin of appreciation in setting the rules for the implementation of individual social rights, including the possibility to amend them. At the same time, the health insurance system for maintaining health should not serve to cover the state budget deficit.
2. Placing the burden of the first day of temporary incapacity for work on the employee
28. In the field of social health insurance for employees, as a result of the amendments made, it follows from Article 4 paragraph (2) letter a) of the law that, de facto, employees are entitled to compensation only if the incapacity for work persists for more than a day. Thus, the sickness benefits are provided only from the second calendar day of temporary incapacity for work, in contrast to the previous rules, which granted this right from the first day.
29. The Court notes that Article 47 (2) of the Constitution guarantees citizens the right to sickness insurance. At the same time, paragraph (1) of the same article provides that the state is obliged to take measures so that any person has a decent standard of living, which ensures the health and well-being of himself and his family, including food, clothing , housing, medical care, and necessary social services.
30. With regard to specific constitutional rules, the Court concludes that the Constitution thus reserved to the legislator not only the implementation of that constitutional law and the establishment of conditions in that regard, but at the same time delimited the constitutional context for the person to benefit from it. this right by the terms "decent standard of living", "to ensure the health and well-being of himself and his family, including food, clothing, housing, medical care and the necessary social services". Given that the Supreme Law does not disclose in more detail the content of these terms, it is obvious that their delimitation, as well as the establishment of additional details, is left to the field of legislative regulation.
31. In the Court's view, the repeal of the provision of social security benefits on the first day of temporary incapacity for work caused by illness conflicts with Article 47 of the Constitution, in particular the right to adequate material security for the period of incapacity for work. Article 4 paragraph (2) letter a) of the law, as subsequently amended, withdraws the right of employees to claim social insurance benefits for the first day of incapacity for work caused by common diseases or unrelated accidents.
The Court considers that the State, on account of an indeterminate number of abusers (in the opinion of the parties), operates a "blank" sanction against other employees who are temporarily incapacitated for work due to common illnesses or unrelated accidents. a state of affairs in which the majority of employees are left without funds on the first day of incapacity for work, although at the same time the obligation to pay social security premiums is maintained.
The Court considers it inadmissible for the state to require employees to execute (in this case, the payment of social security premiums), but at the same time disregard the protection of their interests when they are affected by events beyond their control, which cause incapacity for work and which are insured by payment of social security premiums.
32. The Court notes that the disease is an insured event and its existence must be duly demonstrated (by examination by a doctor). In this context, the Court notes that, in order to exclude abuses, the State has mechanisms in place to monitor the procedure for issuing medical certificates and the observance of sick leave by insured persons, instead of placing the consequences of absence on the shoulders of most honest employees. inefficiency of these mechanisms.
33. The Court therefore considers that the repeal of social security benefits for cases of sickness on the first day of temporary incapacity for work infringes the substance of employees' right to material security adequate for the period of incapacity for work, Article 4 para. (2) lit. a) of the law being in conflict with article 47 of the Constitution.
3. Placing the burden of three days of temporary incapacity for work on the employer
34. The contested provisions of Article 4 paragraph (2) letter b) of the law they charge the employer to pay the indemnity for 3 days of temporary incapacity for work of the employee.
35. The Court notes that the right to social security, guaranteed by Article 47 of the Constitution, presupposes the possibility for the insured person to receive compensation for temporary incapacity for work for the period during which the insured risk causes him damage, so that the protection established by the constitutional norm it is inoperative with respect to the employer. Also, this norm does not limit the right of the state to regulate the employer's participation in the payment of social insurance benefits.
36. The Court therefore considers that this change does not affect the constitutional rules, so that the contested provisions do not introduce anything unconstitutional in the part concerning the employer's additional contribution in the event of his employee's temporary incapacity for work.
37. In the light of the findings concerning Article 4 challenged by law, the Court does not consider it necessary to examine separately the constitutionality of Article 9 para. (1) of the law, which refers to the mentioned norm.
II. ALLEGED VIOLATION OF ARTICLE 47 IN COMBINATION WITH ARTICLE 16 OF THE CONSTITUTION
38. The complainant alleges that the rule of Article 4 (3) of the contested law infringes Article 47 and Article 16 of the Constitution, which enshrines the principle of equality of citizens before the law and public authorities.
A. Arguments of the author of the notification
39. The complainant considers that the contested regulations constitute discrimination because, although they contribute to the state social insurance budget to the same extent, the insured persons are treated differently when social benefits are granted, depending on the cause of temporary incapacity for work:
- common illnesses or accidents not related to work: the payment from the means of the state social insurance budget is made starting with the fifth day of incapacity, the first day being borne from the employee's account and three days - from the employer's account;
- tuberculosis, AIDS, cancer of any kind or the occurrence of the risk of abortion, pregnant women who are registered in medical institutions - payment is made in full from the state social insurance budget.
B. Arguments of the authorities
40. According to the authorities, the contested rules do not discriminate, but enshrine the more active intervention of the State in respect of more vulnerable persons or in situations with increased social implications, by fully covering the costs of recovery from public funds.
C. Findings of the Court
41. The Court reiterates its previous conclusions (Judgment no. 16 of 12 June 2007, etc.) that the essence of the rule of Article 16 of the Constitution on equality of citizens is that all citizens have the same rights, fundamental freedoms and duties, the exercise of which is ensured by without discrimination, but this rule allows the application of differential treatment when there is an objective and reasonable motivation.
42. In this context, the Court accepts the authorities' arguments that the rule of Article 4 paragraph (3) of the law establishes the full assumption by the state of the expenses in case of vulnerable groups in the health system, which cannot be qualified as contrary to the constitutional provisions.
III. ALLEGED VIOLATION OF ARTICLE 46 IN COMBINATION WITH ARTICLE 54 OF THE CONSTITUTION
43. According to the author of the complaint, the contested rules of Article 4 paragraph (2) letter a) and Article 13 paragraph (1) letter c) of the law imply a decrease of the person's income and violate the property right provided by article 46 of Constitution, according to which:
"(2) No one may be expropriated except for a cause of public utility, established by law, with fair and prior compensation."
A. Arguments of the author of the notification
44. The complainant considers that the contested rules, which repeal the right of the insured person to receive the allowance for the first day of temporary incapacity for work (Article 4 paragraph (2) letter a) of the law) and reduce from 100 to 90% the amount the monthly indemnity for temporary incapacity for work in case of an 8-year contribution period (article 13 paragraph (1) letter c) of the law), diminishes the incomes of the insured persons and, thus, infringe their right to property.
B. Arguments of the authorities
45. According to the authorities, the affected rights do not constitute property within the meaning of Article 46 of the Constitution and Article 1 of the Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
C. Findings of the Court
46. The Court reiterates that the Supreme Law does not guarantee a certain amount of social benefit, so that the legislator enjoys a fairly wide margin of appreciation in the field of social rights in setting the rules for the implementation of individual social rights, including the possibility of modify them.
47. On the other hand, the Court accepts the authorities' arguments that the reduction of the percentage of the temporary incapacity benefit aims at ensuring equity between employees with temporary incapacity for work and employees who work, because the employee contributes from the means of pay to the payment of tax. income and other social security contributions, while temporary incapacity benefits are non-taxable.
48. In that context, the Court notes that the persons covered by the contested rules have not been fully deprived of the social benefits at issue, but will suffer a reduction in their amount, although not as a consequence of a change in their personal situation legislative amendments. Therefore, those rules do not have the effect of abolishing these rights.
49. The Court also observes that, in the circumstances of the case, this diminution does not affect the livelihoods of persons and does not impose an excessive and disproportionate burden on them.
50. The Court emphasizes that, while there is no doubt that, in the field of social rights, the Constitution obliges the state to take positive measures to ensure the protection of these rights, the content of the state's obligation is to ensure a minimum standard of social protection for beneficiaries of these rights. , and not a sufficient standard of living, in harmony with their aspirations, as is often misinterpreted.
51. In the Court's view, despite a certain limitation in the field of social protection in the event of temporary incapacity for work, this limitation does not reach such an intensity as to conflict with the constitutional system, nor does it affect the substance of the rights concerned.
For these reasons, under Articles 140 of the Constitution, 26 of the Law on the Constitutional Court, 6, 61, 62 let. a) and 68 of the Code of Constitutional Jurisdiction, Constitutional Court
DECIDES:
1. The provisions of Articles 4 paragraph (2) letter b), 9 paragraph (1) and 13 paragraph (1) letter c) of Law no. 289-XV of July 22, 2004 on disability benefits are recognized as constitutional. temporary work and other social insurance benefits in the wording of Law no. 3 of January 15, 2012 and, respectively, of Law no. 56 of June 9, 2011.
2. The provisions of article 4 paragraph (2) letter a) of Law no. 289-XV of July 22, 2004 on allowances for temporary incapacity for work and other social insurance benefits, in the wording of Law no. 56 of 9, are declared unconstitutional. June 2011.
3. This Decision shall be final, shall not be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the "Official Gazette of the Republic of Moldova".
President Alexandru TĂNASE
Chisinau,
April 10, 2012. HCC no. 5
File no. 39a / 2011