On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Rules of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 1 February 2017, the Constitutional Court of the Republic of Macedonia took the following
DECISION
1. Article 98 paragraph 5 line 6 of the Law on Administrative Officials (“Official Gazette of the Republic of Macedonia”, nos.27/2014, 199/2014, 48/2015, 154/2015 and 5/2016) SHALL BE REPEALED.
2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.
3. Based on the application of Stamen Filipov and the Ombudsman, with its Resolution U.br.121/2015 dated 1 December 2016 the Constitutional Court of the Republic of Macedonia instigated proceedings for appraising the constitutionality of Article 98 paragraph 5 line 6 of the Law on Administrative Officials (“Official Gazette of the Republic of Macedonia”, nos.27/2014, 199/2014, 48/2015, 154/2015 and 5/2016).
The proceedings was instigated as there was a reasonable question raised before the Court with regard to the accordance of the impugned provision of the Law with the Constitution of the Republic of Macedonia.
4. At its session the Court found that under Article 98 paragraph 5 line 6 of the Law on Administrative Officials, the administrative officials shall have their employment terminated by force of law if they turn 62, 63, 64 or 65 years of age (for women), that is 64, 65, 66 or 67 years of age (for men).
5. Under Article 8 paragraph 1 lines 1 and 3 of the Constitution of the Republic of Macedonia basic freedoms and rights of the man and citizen recognised in international law and defined by the Constitution and the rule of law are fundamental values of the constitutional order of the Republic of Macedonia.
Pursuant to Article 9 of the Constitution, citizens of the Republic of Macedonia are equal in their freedoms and rights regardless of sex, race, colour, national and social origin, political and religious beliefs, property and social status. Citizens are equal before the Constitution and the laws.
Under Article 32 of the Constitution, everyone has the right to work, to free choice of employment, protection at work and material assistance during temporary unemployment (paragraph 1). Every job is open to all under equal conditions (paragraph 2). The exercise of the rights of employees and their position are regulated by law and collective agreement (paragraph 5).
Conditions for obtaining old-age pension are governed by Article 18 of the Law on Pension and Disability Insurance (“Official Gazette of the Republic of Macedonia” nos.98/2012, 166/2012, 15/2013, 170/2013, 43/2014, 44/2014, 97/2014, 113/2014, 160/2014, 188/2014, 20/2015, 61/2015, 97/2015, 173/2015 and 217/2015), under which the insured shall be entitled to old-age pension when he turns 64 years of age (men) or 62 years (women) and at least 15 years of service.
Issues relating to employment are regulated by the Labor Law (“Official Gazette of the Republic of Macedonia”, nos. 62/2005, 106/2008, 161/2008, 114/2009, 130/2009, 149/2009, 50/2010, 52/2010, 124/2010, 47/2011, 11/2012, 39/2012, 13/2013, 170/2013, 187/2013, 113/2014, 20/2015, 33/2015, 72/2015, 129/2015). Article 3 paragraph (1) of this Law stipulates that this Law regulates labor relations of workers employed in the state administration bodies, bodies of local self-government units, institutions, public enterprises, institutes, funds, organisations and other legal and natural persons who hire workers, unless otherwise provided by other law. The said provision means that the provisions of the Labour Law apply to matters of employment of administrative officials which are not regulated by the Law on Administrative Officials (“Official Gazette of the Republic of Macedonia”, nos. 27/2014, 199/2014, 48/2015 and 154/2015). The same is regulated by Article 4 paragraph (5) of the Law on Administrative Officials which in turn provides that general labour relations apply to matters relating to the employment of administrative officials which are not regulated by this Law, the Law on Public Employees or with special laws and collective agreements.
Article 104 paragraph (1) of the Labour Law stipulates that the employer terminates the employment contract of an employee when the employee turns 64 years of age and 15 years of service. This provision is in correlation with Article 18 of the Law on Pension and Disability Insurance (“Official Gazette of the Republic of Macedonia” nos. 98/2012, 166/2012, 15/2013, 170/2013, 43/2014, 44/2014, 97/2014, 113/2014, 160/2014, 188/2014, 20/2015, 61/2015, 97/2015, 129/2015, 147/2015, 154/2015 and 173/2015), which provides that the insuree acquires the right to an old- age pension when turning 64 years of age (men), that is 62 years of age (women) and at least 15 years of service. Moreover, under Article 126 paragraph (1) of the same Law the procedure for exercising the rights from pension and disability insurance is initiated at the request of the insuree, that is, the beneficiary of the pension, and for the exercise of the right to family pension and other rights of family members of the insuree, that is, the beneficiary of the pension at the request of the family member. Article 104 paragraph (1) of the Labou Law means that in any case when the employee turns 64 years of age and at least 15 years of service, cumulatively, the employer may, by force of law, terminate his employment, with the employee being guaranteed the right to file a request for exercising the right to an old-age pension under Article 18 of the Law on Pension and Disability Insurance. Article 18 of the Law on Pension and Disability Insurance provides for a possibility for a woman with turned 62 years of age and 15 years of service to acquire the right to an old-age pension, with that that in such a case given the fact that there is no legal possibility under Article 104 paragraph (1) of the Labour Law for the employer on its own, by force of law, to terminate the employment, it is required for the female employee herself to apply for termination of employment. According to the foregoing, until the age of 64 and 15 years of service, regardless of whether it is a man or woman there is no need for any statement for extension of employment, since the legal conditions allowing it to be terminated are met.
Article 104 paragraphs (2), (3) and (4) prescribes the possibility for a male worker to be able to ask from the employer to extend the employment contract to up to 67 years of age, and the female worker to be able to seek an extension of that contract to 65 years age, whereby the employer is obliged to extend the employment contract up to the period requested by the male or female employee, without the possibility to go beyond the established statutory framework. However, with its Decision U.br.114/2014 of 29 June 2016 the Constitutional Court repealed Article 104 paragraph 2 in the part: “(man), that is, up to 65 years of age (woman)” and paragraph 4 in the part: “(man), that is, up to 65 years of age (woman)” of the Labour Law.
The impugned Article 98 paragraph 5 line 6 of the Law on Administrative Officials is contained in Chapter XV entitled “Termination of employment of administrative officials”, subtitled: “Types of termination of employment.”
Under Article 98 paragraph 1 line 5 of the Law, the administrative official shall have the employment terminated by force of law if he turns 62, 63, 64 or 65 years of age (for women), that is, 64, 65, 66 or 67 years of age (for men).
From the analysis of the constitutional and statutory provisions, and the Decision U.br.114/2014 of the Constitutional Court, the Court holds that when regulating issues related to exercising the rights, obligations and responsibilities of the employee and employer under the employment and employment and termination of employment the constitutional obligation of the legislator is to put citizens in the same legal position on the stated grounds.
According to the Court, the impugned provision of Article 98 paragraph 5 line 6 of the Law does not provide for equal legal status of citizens. Namely, the stipulation under the contested provision for administrative officials to have their employment terminated at different ages depending on the sex of the administrative officials means unequal treatment of citizens on grounds of sex, whenever the conditions for termination of employment by force of law and set down by special law are different for men and women, as in this case. The impugned provision of the Law is imperative and imposes termination of employment of women under different conditions than men, that is, upon turning 62, 63, 64 or 65 years of age, compared to 64, 65, 66 and 67 years of age for men. However, according to the view of the Court expressed in its Decision U.br.114/2014 of 29 June 2016, another issue is the right of the insured woman to acquire old-age pension earlier than the insured man, if she chooses it herself, given that this right has its justification in the principle of affirmative action, that is, the principle of positive discrimination against women. However, that right of women in the sphere of pension and disability insurance cannot automatically be applied to other areas, especially if it leads to restriction of rights on the basis of gender. Specifically, the Court is of the opinion that the extension of the employment contract actually means continuation of the employment, that is, exercise of the right to work, which differs from exercising the right to an old-age pension.
From the analysis of the content of the impugned provision it is also indisputable that it is vague and imprecise, thus inapplicable, for reasons that with the specification of the different number of years of age as a condition for the termination of employment for men (64, 65, 66 and 67) and women (62, 63, 64 and 65) and by force of law, thereby calling into question one of the fundamental values of the constitutional order of the Republic of Macedonia – the rule of law – under Article 8 paragraph 1 line 3 of the Constitution.
The impugned provision is contrary to the principle of the rule of law because it is vague, imprecise and inconsistent, leading to legal uncertainty among citizens. This is because the regulation of the right of termination of employment is governed by the Labour Law, which, in its provisions refers to the application of a special law, in this case the Law on Administrative Officials, which again in the regulation of termination of employment invokes and refers to the application of the Labour Law. Because of this legal inconsistency, according to the Court, the impugned provision of the Law on Administrative Officials is in contradiction with Article 8 paragraph 1 line 3 of the Constitution.
Considering the stated constitutional-judicial analysis, and the already mentioned opinion of the Constitutional Court in its Decision U.br.114/2014, the Court holds that the impugned statutory provision is not in accordance with the principle of rule of law under Article 8 paragraph 1 line 3 of the Constitution and the principle of equality of citizens regardless of sex and the principle of availability of each job to everyone under equal conditions, thus violating Article 9 and Article 32 paragraph 5 of the Constitution.
6. On the basis of what has been noted, the Court decided as in item 1 of the present Decision.
7. The Court took the present decision by a majority vote in the following composition: Mr Nikola Ivanovski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mrs Elena Gosheva, Mr Jovan Josifovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski. U.br.121/2015