Decision

DECISION No 2 OF 4 APRIL 2006 ON CONSTITUTIONAL CASE No 9/2005

         The case was heard under Art. 149, para 1, subpara 2 of the Constitution regarding a challenge of the General Prosecutor of the Republic of Bulgaria of 7 December 2005 of the constitutionality of the provisions contained in Arts. 48а and 52а of the Social Security Code (SSC). He claimed that they are in contravention to Art. 47, paras 1 and 2 of the Constitution. The texts challenged provide that a person covered by a social security scheme is entitled to an allowance for pregnancy and confinement (Art. 48а of the SSC), respectively, to an allowance for postnatal care (Art. 52а of the SSC), providing social security contributions have been paid in the course of six months to cover all eventualities except industrial accident, occupational disease and unemployment or all eventualities except unemployment.

         The General Prosecutor claimed that the provisions of Arts 48а and 52а of the SSC are in contravention to the Constitution as they conflict with Art. 47, para 1 and 2 of the Constitution. He gives two reasons to support his challenge. First, the Constitution text poses no preliminary conditions to be eligible for a paid annual leave and payments during this leave and, second, if the Constitution is to be complied with, the allowance for pregnancy, confinement and postnatal care should be paid even if a mother has a record of one-day length of employment.

         Having discussed the motives and rationale of the challenge and the positions of the parties, the proven facts and circumstances, in order to pronounce its ruling the Constitutional Court took into account the following details:

         Art. 47, para 1 of the Constitution reads that the raising and upbringing of children until they come of legal age shall be a right and obligation of their parents and shall be assisted by the state and para 2 reads that mothers shall be the object of the state and shall be guaranteed prenatal and postnatal leave, free obstetric care, alleviated working conditions, and other social assistance. The fathers of the Constitution complied with the diversity of life hypotheses in the period of maternity and the different social status of the women mothers (working, non-working, covered or non-covered by a social security scheme) and listed in Art. 47, para 2 different ways and forms of Government care for mothers. However, the Constitution does not define the specific conditions and procedures that entitle to a special “prenatal and postnatal” maternity leave. This is so as the Constitution cannot provide in detail and at length the conditions and procedures for all rights of citizens. These conditions and procedures are prescribed by laws.

         The protection that the State extends on mothers is codified in several pieces of legislation: the Labor Code (LC), the Child Allowance Act (CAA), the Social Assistance Act (SAA), the Civil Service Act (SCA), and the Public Health Act (PHA). The case in question deals with paid prenatal and postnatal leave as per Art. 47, para 2 of the Constitution, the claim being that any woman is to enjoy prenatal and postnatal leave not subject to any condition and in compliance with Art. 47, para 2 of the Constitution. This leave which the Labor Code terms ,,leave for the purpose of pregnancy and confinement” is a special kind of leave different from the paid annual leave. It is a paid leave and therefore the worker or employee gets money. However, the terms of payment and the amount are prescribed in the Social Security Code and not in the Labor Code. Therefore, the leave that Art. 47, para 2 of the Constitution provides for is subject to the social security regulations. Conceptually and systematically the eligibility to allowances for the purpose of pregnancy and confinement under Art. 48а of the SSC and to a leave for the purpose of postnatal care under Art. 52а of the SSC, including the conditions and the procedures, are part of the state social security system which is one of the ,,pillars” of the social security and derives from the text of Art. 51 of the Constitution. The system is built and functions in order to enable the right to social security as expressly provided for by Art. 51, para 1 of the Constitution as one of the fundamental rights enjoyed by citizens. The eligibility to access the social security scheme is valid for making security cash payments for maternity and stems from the nature and goals of social security.

         The claim challenged the constitutionality of the requirement that social security contributions must have been paid in order to be eligible for a maternity allowance. A social security contribution is not a notion in the Constitution but of the law and is a basic concept of the social security legislation, an element of the legal status of the covered persons. It is a legal fact which makes the persons covered eligible or else changes the scope of the eligibility. Coverage has two aspects which must be present cumulatively: the contract-based relation between the person covered and the social security institution and the obligation to pay social security contributions. In principle the requirement for length of employment is the foundation and the underlying principle to define the content and range of the fundamental social security rights; without it the social security rights are simply inexistent. Therefore, if the social security system does not pose the requirement for length of employment, but for exceptions that are explicitly provided for, the person will get ,,something else” and not an allowance from the social security institution. There is no binding provision that this ,,something else” should be paid by the social security system; it may be paid by some other institution within the social sector; however, it must be paid within the framework of the special protection extended by Art. 47, para 2 of the Constitution in order to comply with the Constitution.

         The above leads to the conclusion that Arts. 48а and 52а of the SSC fit into the overall framework of social security legislation and are in tune with its underlying principles. As long as the eligibility for maternity allowance is part of the state social security system, the latter will function in accordance with the general principles and rules of social security. The Court therefore concluded that the hearing of and ruling on the challenge of the constitutionality of Arts. 48а and 52а of the SSC cannot ignore Art. 51, para 1 of the Constitution as the text in question is the constitutional pillar of the whole social security system and proclaims the right to be covered by social security schemes and to benefit from social assistance as fundamental social rights of the citizens. The Court recognized that the Constitution gives the social security principles: it proclaims social security coverage as a basic right (Art. 51, para 1) and the principle of the welfare state (the preamble) but does not define the content and principles of social security. The lawmaker is to provide the substance and as Art. чл. 47, para 2 of the Constitution gives no details about “a paid prenatal and postnatal leave” it is up to the law to provide the substance of this legal provision; the lawmaker is to pass the legislation on the basis of and within the framework of the Constitution provisions in Art. 48, para 5 (right to leave) and Art. 51 (right to social security coverage and to welfare aid). The lawmaker did it by the passage of Arts. 48а and 52а of the SSC that reflect the right to social security coverage as a fundamental right of any citizen.

         The question that still remains to be answered is: in what way will the postulation of the special protection for mothers be applied to women who for one reason or another are not covered by the social security schemes. A mother finds it irrelevant to ask who will pay her during the period of her incapacity to work for reasons of maternity. This is support due to her as special protection as per Art. 47 para 2. The Government must ensure this support. If the development of the social security system harms this social right, the Government shall compensate by setting in motion other mechanisms of the welfare state and ensure, though with other ways and means, the special protection for the mother.

         This conclusion derives from the very nature of the fundamental rights in the social sector: there, unlike the individual fundamental rights that are termed ,,defensive” or ,,negative” the purpose is not defense against the entry of the public authorities in the guarded privacy but a call for positive actions in the social sector by the Government and for sharing the Government’s achievements; hence the attributes ,,shared” or ,,positive” rights. They can be realized only if the Government takes the needed and expected measures and creates conditions and guarantees.

         The Court found that the lawmaker, while observing the underlying principles of state social security coverage – compulsory payment of social security contributions, commitment, equality and solidarity of the persons covered – applied a complex approach with the passage of Arts. 48а and 52а of the SSC. The lawmaker passed very clear provisions about the payments for pregnancy, confinement and postnatal care and while those payments are taken out of the social security coverage if the persons are not covered, they have to be recompensed with cash payments from other sources of the welfare state that is bound to extend immediate and unlimited protection to persons who are not covered by the social security schemes for the said eventualities.

         The Court found that the approach of the lawmaker is the real point of the challenge: this is the precision and the transfer of the burden of protection extended by the social security system to non-working and uncovered women mothers from the social security to the social assistance system. The Constitutional Court found that the challenged approach of legislation must be treated as a whole for it is only in this way that the Court can apply Art 47, para 2 of the Constitution as a standard of constitutionality.

         There is no sign of equation between the special protection for mothers and the social security system as defined in the Constitution. Special protection can be extended through the social security schemes but not only through them. Social security schemes are one channel but not necessarily the only channel. It is to be concluded therefore that if the protection issues from a source other than the social security system as the person is not covered, such protection is not in contravention to the Constitution.

         Reading between the lines of the provisions of Art. 47, paras 1 and 2 of the Constitution, it is to be deduced that the lawmaker is imperatively called and encouraged to extend protection and care to each mother. The legislating body fulfils part of this assignment vis-à-vis the covered mothers with the Social Security Code (SSC) and fulfils the other part concerning the non-covered mothers with the Child Allowances Act.

         The Court assumed that the Constitution does not make it binding to have two or more separate laws providing for the special protection of women mothers nor does it prescribe contrariwise as what matters is the ultimate objective which is to ensure efficient protection for mothers.

         The Court had to remember that the wording of Arts. 48а and 52а of the SSC conforms to the Child Allowances Act. Under this Act a mother who is not eligible to access the state social security system as she is not working (she has no contract of permanent or temporary employment) or else she has to work for several more months to meet the requirement of the six-month length of employment that makes her eligible to a cash benefit, is to be transferred into the social assistance system as an alternative to the maternity allowance if she is a mother.

         The child allowances that this Act provides for are sort of ,,social assistance” in the meaning of Art. 47, para 2 of the Constitution. This assistance is provided to pay the costs of children. It has its own specifics: unlike the social benefits payable from the social assistance funds, the child allowances have no charity about them; they express the society’s support and gratitude to parents and are inspired by Arts 14 and 47 of the Constitution.

         The imperative prescription for special support to mothers in keeping with Art. 47, para 2 of the Constitution does not invite the conclusion of non-compliance with the Constitution when, on the one hand, the paid maternity leave was aligned to the principles of social security and, on the other hand, this leave was tied up with the creation and application of new forms of social support like the special protection for mothers who do not get maternity allowance cash payments from the social security system. In this context the challenged legislation regarding Arts. 48а and 52а of the SSC combined in parallel with the CAA provisions is one of the legislative options that transpose into the legislation the Constitution imperative for the special protection of mothers whereon the Government is not relieved of the care it must provide but provides in a way which is consistent with the Constitution.

         With regard to the above, the Court judged that a requirement for a six-month coverage in order to become eligible to get the allowance under Arts. 48а and 52а of the SSC combined with the parallel financial support, under a different law though, to mothers who do not get maternity allowances, is not in contravention to Art. 47, paras 1 and 2 of the Constitution, therefore, the challenge of the constitutionality of Arts. 48а and 52а of the SSC is untenable and should be ruled down.

         On the basis of the above reflections and pursuant to Art. 149, para 1, subpara 2 of the Constitution, the Constitutional Court overruled the General Prosecutor’s challenge of the constitutionality of Arts. 48а and 52а of the Social Security Code (promulgated, DV, No 110/1999, last amended in No 17/2006).

Председател: Неделчо Беронов