Decision No. 1 of 16 January 2018 on Constitutional Case No. 3/2017
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by the Ombudsman of the Republic of Bulgaria. The subject matter of the case concerns the constitutionality of Article 245, paragraph 1 of the Labour Code, insofar as it provides for “an amount equal to 60 per cent of the employee’s gross remuneration, but not less than the minimum wage for the country.” The request alleges that the provision is unconstitutional on the grounds that it is contrary to Article 16 and Article 48, paragraphs 1 and 5 of the Constitution, as well as to the principles of the rule of law and the social state proclaimed in the Preamble and Article 4, paragraph 1 of the Constitution.
Summary of the Court’s Reasoning
In the voting conducted, the required majority under Article 151, paragraph 1 of the Constitution and Article 15, paragraph 2 of the Constitutional Court Act - namely, more than half of the judges from the composition of the Court (at least 7 votes) - was not reached. Accordingly, the request was rejected.
According to part of the judges, the request is unfounded and should be dismissed for the following reasons:
The judges consider that a historical review of the development of the legislative process leading to the adoption of Article 245 of the Labour Code, including in its challenged part, demonstrates that the legislator’s understanding is precisely in support of the view that the provision is a guarantee and protective norm in favour of the employee, rather than one creating rights to the benefit of the employer and to the detriment of employees, as argued in the Ombudsman’s request.
Without the correct interpretation and application of the rule contained in Article 245, paragraph 1 of the Labour Code, it is not possible for it to fulfil its guarantee and protective functions. In this sense, the existing problems in its application are merely the result of an “interpretation” contrary to the legal provision (contra legem).
Article 245, paragraph 1 of the Labour Code has a disciplinary function with respect to the employer and a protective function with respect to the employee. It imposes certain obligations on the employer in relation to the management and organisation of their activities. For the employee, however, the provision has a guarantee function, understood in the sense that, where the employee has duly and in good faith performed their employment duties, regardless of the financial difficulties of the employer, they will unconditionally receive at least the statutory minimum amount necessary to ensure their livelihood and that of their family.
In the present case, Article 245, paragraph 1 of the Labour Code establishes the minimum guaranteed amount of remuneration to be paid. The hypothetical granting of the request would not only fail to prevent the persistent unlawful practice of employers not paying employees their full remuneration in due time, but would also create even greater legal uncertainty and additional difficulties in law enforcement.
According to another part of the judges, the request is well-founded and should be upheld for the following reasons:
Article 245, paragraph 1 of the Labour Code restricts the constitutional right of the employee under Article 48, paragraph 5, third sentence of the Constitution to remuneration corresponding to work duly and in good faith performed. It creates a constitutionally unjustified privilege for the employer, who is, by nature, the stronger party in the employment relationship. It is evident that the challenged provision establishes rights solely in favour of the employer, notwithstanding that it is entitled “Guaranteeing the payment of remuneration”.
The judges hold that, instead of ensuring the actual payment of the employee’s remuneration, the provision allows the employer, based solely on its subjective assessment and in its own interest, not to pay the full agreed remuneration for an indefinite period of time, entirely without effective administrative control or sanction.
Article 245, paragraph 1 of the Labour Code is unclear, incomplete and misleading. The wording “is guaranteed” suggests that the law indeed secures the employee’s right to receive at least 60% of their due remuneration. In reality, however, the payment of wages depends on the employer’s financial capacity. The employer may be equally unable to pay either 100% or 60% of the remuneration. As noted above, the challenged provision does not regulate the procedure, conditions, or time limits for its application. It is so incomplete and unclear that it precludes any conforming interpretation. There is no possibility for it to be construed in accordance with Article 48, paragraph 5 of the Constitution.
According to two judges, the request is inadmissible and should be dismissed.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 of the Constitution (the competence to rule on requests for a declaration of unconstitutionality of laws), the Constitutional Court rejects the request of the Ombudsman of the Republic of Bulgaria seeking a declaration of unconstitutionality of Article 245, paragraph 1 of the Labour Code, insofar as it provides for “an amount equal to 60 per cent of the employee’s gross remuneration, but not less than the minimum wage for the country.”