Constitutional Court of
the Republic of North Macedonia
No. U.no.27/2025, U.br.50/2025 and U.no.132/2025
Skopje, 26.11.2025
Acting pursuant to Article 110 of the Constitution of the Republic of North Macedonia and Article 73 of the Act of the Constitutional Court of the Republic of North Macedonia (Official Gazette of the Republic of North Macedonia No. 115/2024), at the session held on 26 November 2025, the Constitutional Court of the Republic of North Macedonia, composed of Darko Kostadinovski LLD, President of the Court, and the judges Naser Ajdari, Tatjana Vasić-Bozadžieva LLM, Jadranka Dabović-Anastasovska LLD, Osman Kadriu LLD, Dobrila Kacarska, and Ana Pavlovska-Daneva LLD, adopted the following
RESOLUTION
NO PROCEEDINGS SHALL BE INITIATED for the review of the constitutionality of Article 104-a of the Law on Labour Relations (Official Gazette of the Republic of Macedonia No. 62/2005, 106/2008, 161/2008, 114/2009, 130/2009, 50/2010, 52/2010, 124/2010, 47/2011, 11/2012, 39/2012, 13/2013, 25/2013, 170/2013, 187/2013, 113/2014, 20/2015, 33/2015, 72/2015, 129/2015, 27/2016 and 120/2018, and Official Gazette of the Republic of North Macedonia No. 110/2019, 267/2020, 151/2021, 288/2021, 111/2023, 39/2025, 74/2025 and 124/2025).
Reasoning
I
Igorče Točev from Skopje and others, Jovanka Trenčevska from Skopje, and Aleksandra Ilieva Milčova, Attorney-at-Law from Skopje, submitted initiatives to the Constitutional Court of the Republic of North Macedonia for the initiating of proceedings for the review of the constitutionality of the contested provision of the Law referred to in the operative part of this Resolution.
According to the allegations set out in the initiatives, the contested provision of the Law is not in conformity with the principle of the rule of law established in Article 8 paragraph 1 indent 3 of the Constitution, the principle of equality of citizens regardless of their social status, and the principle of accessibility, namely that every job position shall be accessible to everyone under equal conditions, thereby violating Article 9 and Article 32 paragraph 5 of the Constitution of the Republic of North Macedonia.
The applicants challenge the constitutionality of the contested provision for the reasons set out below.
It is a constitutional obligation of the legislator to guarantee that all citizens are placed in an equal legal position when regulating the rights, obligations and responsibilities of the employee and the employer arising from the employment relationship (establishment/termination of employment).
The extension of an employment contract constitutes a continuation of the employment relationship, that is, the exercise of the right to work, which is distinct from the exercise of the right to an old-age pension.
Namely, according to the applicants, the violation of Article 9 of the Constitution consists in the fact that, where a person exercises rights arising from an employment relationship on the basis of a decision on election or appointment by a competent authority, that person’s rights and obligations arising from the performance of the office are determined in accordance with the relevant law, however, by introducing such a provision into the Law on Labour Relations, an unequal position is established in relation to other citizens employed pursuant to the Law on Labour Relations, and at the same time, the principle of the rule of law, the principle of equality of citizens regardless of their social status, and the principle of accessibility of every job position under equal conditions are undermined.
Furthermore, the initiatives state that the exception provided for by the contested provision was justified by the proposers of the Draft Law Amending and Supplementing the Law on Labour Relations, adopted under a shortened procedure, by reference to the existing factual situation in the judiciary and its staffing capacities.
According to the allegations in one of the initiatives, the contested amendment to the Law on Labour Relations is contrary to the subject matter regulated by the Law on Labour Relations. That Law regulates the employment relationship between an employee and an employer through the conclusion of an employment contract, on the basis of which the rights and obligations of the parties arise, whereas the obligations of elected and appointed officials arise from the mandate conferred upon them by the body that elected or appointed them. The rights and obligations of elected and appointed officials, including provisions on the termination of office, are regulated by special laws.
Namely, according to the allegations, Article 104 of the Law on Labour Relations regulates the employee’s right to work, while Article 18 of the Law on Pension and Disability Insurance regulates the right to an old-age pension, and these constitute two distinct rights.
In view of all the above, it is proposed that the Court initiate proceedings, adopt a decision to stop the execution of individual acts or actions undertaken on the basis of the contested provision, and repeal or annul that provision.
II
At the session, the Court established that the contested Article 104-a of the Law on Labour Relations (Official Gazette of the Republic of Macedonia No. 62/2005, 106/2008, 161/2008, 114/2009, 130/2009, 50/2010, 52/2010, 124/2010, 47/2011, 11/2012, 39/2012, 13/2013, 25/2013, 170/2013, 187/2013, 113/2014, 20/2015, 33/2015, 72/2015, 129/2015, 27/2016 and 120/2018, and Official Gazette of the Republic of North Macedonia No. 110/2019, 267/2020, 151/2021, 288/2021, 111/2023, 39/2025, 74/2025 and 124/2025) is entitled “Extension of the Employment Relationship of Elected and Appointed Persons.”
Paragraph (1) of the Article provides that, by way of exception to Article 104 of this Law, a person who exercises rights arising from an employment relationship on the basis of a decision on election or appointment by a competent authority, in accordance with the law governing the rights and obligations deriving from the holding of office, shall have the right to request to continue to hold office even after fulfilling the conditions for old-age pension, but no later than upon reaching 67 years of age, by submitting a written statement to the body that elected or appointed them.
Paragraph 2 of the same Article provides that the written statement referred to in paragraph 1 of this Article shall be submitted by the person once a year, no later than 31 August of the current year, for the purpose of continuing to hold office for the following year.
III
The rule of law is a fundamental value of the constitutional order of the Republic of North Macedonia, pursuant to Article 8 paragraph 1 indent 3 of the Constitution of the Republic of North Macedonia.
According to Article 9 of the Constitution, the citizens of the Republic of North Macedonia are equal in their freedoms and rights regardless of sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status. Citizens are equal before the Constitution and the laws.
Pursuant to Article 32 of the Constitution, everyone has the right to work, free choice of employment, protection at work, and material security during temporary unemployment (paragraph 1). Every job position shall be accessible to everyone under equal conditions (paragraph 2). The exercise of employees’ rights and their status shall be regulated by law and by a collective agreement (paragraph 5).
In the Republic of North Macedonia, laws must be in conformity with the Constitution, and all other regulations with the Constitution and the laws. Everyone is obliged to respect the Constitution and the laws, pursuant to Article 51 of the Constitution.
According to Article 110 indent 1 of the Constitution of the Republic of North Macedonia, the Constitutional Court decides on the conformity of laws with the Constitution.
Pursuant to Article 1 paragraph 1 of the Law on Labour Relations (Official Gazette of the Republic of Macedonia No. 62/2005, 106/2008, 161/2008, 114/2009, 130/2009, 50/2010, 52/2010, 124/2010, 47/2011, 11/2012, 39/2012, 13/2013, 25/2013, 170/2013, 187/2013, 113/2014, 20/2015, 33/2015, 72/2015, 129/2015, 27/2016 and 120/2018, and Official Gazette of the Republic of North Macedonia No. 110/2019, 267/2020, 151/2021, 288/2021, 111/2023, 39/2025, 74/2025 and 124/2025), labour relations between employees and employers established through the conclusion of an employment contract are regulated. Pursuant to paragraph 2 of the same Article, the employment relationship shall be regulated by this Act and other laws, a collective agreement and the employment contract.
By the Law Amending and Supplementing the Law on Labour Relations (Official Gazette of the Republic of North Macedonia No. 39/2025), a new Article 104-a was added after Article 104 of this Law.
Pursuant to Article 73 paragraph 1 indent 3 of the Law on Courts (Official Gazette of the Republic of Macedonia No. 58/2006, 62/2006, 35/2008, 150/2010, 83/2018 and 198/2018, and Official Gazette of the Republic of North Macedonia No. 96/2019), it is provided that a judge’s judicial office shall cease when the conditions for an old-age pension are fulfilled, with the possibility of extending the mandate in accordance with the regulations governing labour relations.
According to Article 87 paragraph 1 indent 4 of the Law on Public Prosecutor’s Office (Official Gazette of the Republic of North Macedonia No. 42/2020), a public prosecutor’s office shall cease when the conditions for an old-age pension are fulfilled, with the right to an extension in accordance with the Law on Labour Relations.
Article 47 paragraph 1 of the Law on the Council of Public Prosecutors of the Republic of North Macedonia (Official Gazette of the Republic of Macedonia No. 150/2007 and 100/2011, and Official Gazette of the Republic of North Macedonia No. 42/2020) provides that the Council shall adopt a decision on the termination of the office of a public prosecutor when the conditions for an old-age pension are fulfilled in accordance with the law, whereby the public prosecutor may continue to hold office in accordance with the regulations governing labour relations by submitting a statement to the Council of Public Prosecutors.
IV
Pursuant to Article 32 paragraph 1 of the Constitution of the Republic of North Macedonia, everyone has the right to work, free choice of employment, protection at work, and material security during temporary unemployment. According to paragraph 5 of this Article, the exercise of employees’ rights and their status shall be regulated by law and by a collective agreement.
From these constitutional provisions, it follows that the exercise of employees’ rights and their status is regulated by law and by a collective agreement, whereby the Law on Labour Relations constitutes lex generalis with regard to the regulation of labour relations, while certain issues may be regulated differently by special laws (lex specialis), such as the Law on Courts, the Law on Public Prosecutor’s Office, the Law on Administrative Servants, etc.
An employment relationship is a social relationship regulated by legal norms and collective agreements, and where it is regulated by special laws, those laws must be in correlation with the general law governing labour relations, that is, there must be a referential norm in the Law on Labour Relations and/or in the special law through which both statutory acts (the general and the special) are linked into a complementary legal entity.
An employment relationship must be established in a manner determined by law and by a collective agreement, which also lay down the conditions for the establishment of the employment relationship.
Where a matter is regulated by other laws, such law constitutes lex specialis in relation to the Law on Labour Relations, which is lex generalis and has subsidiary application – lex specialis derogat legi generali.
In the preliminary proceedings, the Constitutional Court requested the Assembly of the Republic of North Macedonia to submit the Draft Law Amending and Supplementing the Law on Labour Relations together with the explanatory memorandum, which contains the proposal for the supplement that is the subject of review in the present case with respect to the proposed amendments. In that regard, it was established that the explanatory memorandum to this Law stated the need to supplement the Law due to the situation in the judiciary from the aspect of staffing capacities, which has adverse consequences for citizens. In order to overcome this problem, it was proposed to provide the possibility for the continuation of judicial and prosecutorial office.
Article 73 paragraph 1 indent 3 of the Law on Courts provides for the possibility of extending the mandate of judges even after the fulfilment of the conditions for an old-age pension. Likewise, Article 87 paragraph 1 indent 4 of the Law on Public Prosecutor’s Office and Article 47 of the Law on the Council of Public Prosecutors of the Republic of North Macedonia provide for the possibility of extending the mandate of public prosecutors in accordance with the Law on Labour Relations, that is, the regulations governing labour relations. Due to the envisaged possibility of continuing in judicial and public prosecutorial office, the contested amendment to the Law was proposed.
By the contested provision, the legislator has envisaged an exception by granting preference in relation to a particular job, which is based on the essential requirements of that job.
Furthermore, pursuant to Article 8 paragraph 1 of the Law on Labour Relations, the exceptions to the prohibition of discrimination are laid down. According to this Article, it shall not be considered discrimination to make a distinction, exclusion or preference in relation to a particular job where the nature of the job is such, or the job is performed under such conditions, that the characteristics related to any of the cases referred to in Article 6 of this Law constitute a genuine and determining requirement for the performance of the job, provided that the objective sought is justified and the requirement is proportionate.
In the present case, it concerns a provision which establishes a so-called genuine occupational requirement, which is well known in anti-discrimination law and is also contained in international instruments in this field, as well as in the legislation and practice of many countries.
In the Court’s view, the allegations that the contested provision is contrary to the subject matter regulated by the Law on Labour Relations are unfounded, as that Act regulates the employment relationship between an employee and an employer through the conclusion of an employment contract, from which rights and obligations arise, whereas the obligations of elected and appointed officials arise from the mandate conferred by the body that elected or appointed them.
Indeed, in the Court’s view, such statutory regulation cannot be applied to all employees in all spheres of social life, since it clearly follows from the content of the contested provision that it has subsidiary application in cases where the same matter is not regulated differently by another, special law.
Accordingly, holders of public office do not have the same status and the same position as employees who establish an employment relationship in the economic and non-economic sectors, and therefore the different treatment between these categories of persons does not constitute discrimination, because equality as a principle implies that like cases are treated alike, and unlike cases differently.
In the present case, it concerns elected and appointed officials who establish a permanent employment relationship, that is, an employment relationship which is not determined on the basis of a mandate. The rights and obligations of elected and appointed officials are regulated by laws which constitute lex specialis (the Law on Courts, the Law on Public Prosecutor’s Office), that is, in accordance with the law determining their rights and obligations arising from the holding of office. By the contested amendment to the Law on Labour Relations, the legislator regulated an exception to Article 104 of the Law on Labour Relations, providing that a person who exercises rights arising from an employment relationship on the basis of a decision on election or appointment by a competent authority, in accordance with the law determining the rights and obligations arising from the holding of office, has the right to request the continuation to hold office even after fulfilling the conditions for an old-age pension, but no later than up to the age of 67, by submitting a written statement to the body that elected or appointed them. In the Court’s view, it does not constitute an impediment for the legislator, within the constitutional competence under Article 68 paragraph 1 indent 2 of the Constitution, to further regulate certain matters in this field where this has not been done by the special law.
Namely, Convention No. 111 of the International Labour Organization concerning Discrimination in Respect of Employment and Occupation, in Article 1 paragraph 2, provides that any distinction, exclusion or preference in respect of a particular job, based on the inherent requirements thereof, shall not be deemed to be discrimination.
The European Union directives relating to the prohibition of discrimination include the Gender Equality Directive (Article 14 paragraph 2), the Racial Equality Directive (Article 4) and the Employment Equality Directive (Article 4 paragraph 1), which provide that Member States may stipulate that a difference of treatment based on a characteristic related to a protected ground shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
According to the Court, the contested provision provides for a permissible exception to the prohibition of discrimination due to the nature of the specific professional relationships, that is, access to employment, and it does not in itself create discrimination, as alleged by the applicants in the initiative.
The Court assessed that the contested provision cannot be called into question with regard to its conformity with Article 32 paragraph 5 of the Constitution, since the provision does not concern the right to work, free choice of employment, protection at work or accessibility of employment, which are provisions relating to the exercise of the right to employment, but not to the termination thereof.
In the present case, the continuation of the employment relationship in fact signifies the exercise of the right to work, which is distinct from the exercise of the right to an old-age pension.
An employment relationship, on the one hand, represents a social relationship arising between participants in the labour process, that is, the process of production, and on the other hand, an employment relationship is a legal form, institutionalised as a social relationship subject to the norms of positive law.
The right to an old-age pension must not be equated with the right to work, therefore, the fulfilment of the conditions for an old-age pension under various circumstances, in itself, must not constitute grounds for termination of office by operation of law.
The existence of the Law on Labour Relations and the Law on Pension and Disability Insurance, as lex specialis, which regulate labour relations and rights in the field of pension and disability insurance, in which context the termination or discontinuation of the employment contract due to age and the acquisition of an old-age pension as one of the rights in the field of pension and disability insurance are regulated, does not, in the Court’s view, constitute an impediment for the legislator, as a social regulator, to further regulate certain issues in this field, and in itself, this does not represent a violation of the constitutional principle of equality (Article 9 paragraph 2 of the Constitution) or of the fundamental value of the rule of law, laid down in Article 8 paragraph 1 indent 3 of the Constitution.
According to Article 54 paragraph 1 of the Constitution, the freedoms and rights of the individual and the citizen may be restricted only in cases determined by the Constitution, and pursuant to paragraph 3 of the same Article, any restriction of freedoms and rights may not be discriminatory on the grounds of sex, race, colour of skin, language, religion, national or social origin, property or social status.
From the cited constitutional provisions, inter alia, it follows that everyone has the right to work, free choice of employment, that every job position is accessible to everyone under equal conditions, and that the rights of employees and their status are regulated by law and by a collective agreement, while the citizens of the Republic of North Macedonia are equal before the Constitution and the laws.
In assessing the expediency of the need to adopt this legislative solution with regard to the precise determination of the conditions, namely the right, as an exception, to continue to hold office even after fulfilling the conditions for an old-age pension, but no later than up to the age of 67, this constitutes the right and assessment of the legislator; from a constitutional-law perspective, what is essential is that it has a constitutional basis.
In this regard, from the analysis of the previously cited provisions, lex specialis regulates the conditions for the performance of duties and the position and status of a particular profession and, taking into account the specificity of the subject matter regulated, excludes the application of other laws in whole or in part with respect to all issues regulated by that law (lex specialis derogat legi generali). According to this principle, priority in application is given to the special law, and the provisions of the general law apply only if a particular issue is not otherwise regulated by the special law. The application of this legal principle does not imply the existence of unclear or ambiguous norms in the legal order, nor a violation of the rule of law which, as a fundamental value of the constitutional order, presupposes the existence and observance of general standards and positive legal norms. Citizens are equal before the law, but laws regulate specific fields and must ensure equality of citizens before the law. The rule of law also implies transparency of the conditions and criteria for the acquisition and/or loss of certain rights, as well as compliance with the laws by those to whom such laws apply.
Having regard to the cited constitutional and statutory provisions, and on the basis of the constitutional-judicial analysis of the contested provision, the Court considers that the contested provision cannot be called into question as being inconsistent with the Constitution from the aspect of the allegations set out in the initiatives.
Accordingly, the procedural conditions for adopting a decision staying execution, pursuant to Article 37 paragraph 1 of the Act of the Constitutional Court, have not been met.
V
On the basis of the foregoing, the Court, by a majority of votes, decided as set out in the operative part of this Resolution.
PRESIDENT
of the Constitutional Court
of the Republic of North Macedonia,
Darko Kostadinovski LLD