Constitutional Court: Pension Act discriminated against women

The Constitutional Court found that the regulation did not treat women equally by deciding that they must retire two years earlier than men

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Constitutional Court, Photo: Boris Pejović
Constitutional Court, Photo: Boris Pejović
Disclaimer: The translations are mostly done through AI translator and might not be 100% accurate.

The Constitutional Court found the provisions of the Law on Pension and Disability Insurance, which stipulated that women acquire the right to an old-age pension at the age of 64, two years earlier than men, to be discriminatory.

This is stated in a statement from that institution, which states that the contested provisions cease to be valid.

At the same time, the Constitutional Court rejected requests for the suspension of the application of the contested provisions and for the suspension of the execution of individual acts and actions adopted on the basis of the disputed provisions of the Law.

"The majority of judges expressed the opinion that the legislator, by prescribing the contested provision of Article 17, paragraph 1 of the PIO Act that: 'the insured acquires the right to an old-age pension when he reaches the age of 66 (men) or 64 years (women)', violated the constitutional principles on the prohibition of discrimination, the equality of all before the law and gender equality... because as a legal criterion for acquiring the insured's right to an old-age pension, he prescribed a different number of years of life, solely depending on the personal characteristics of the insured, i.e. biological characteristics-gender and in that way insured persons in a mutually unequal position in terms of fulfilling the conditions for acquiring the right to an old-age pension, i.e. denied a man and a woman the right to acquire the right to an old-age pension under the same conditions," the decision explains.

They explain that prescribing a lower age limit for exercising the right to an old-age pension for women does not represent a measure of positive discrimination aimed at protecting women due to their biological functions: "Because it is not aimed at preventing or compensating for deficiencies in the professional life of women, in order to ensure full equality between men and women Namely, in the specific case, the disputed provision of Article 17 paragraph 1 of the Law regulates different conditions for men and women in terms of years of life for acquiring the conditions for exercising the right to an old-age pension, on the basis of gender, and not an issue concerning the improvement position of women in their professional life".

Judges Snežana Armenko and Momirka Tešić had the opposite view, as it was announced - claiming that the aforementioned provision, thereby separating the conditions for old-age pension for men and women, does not put a woman in a priori disadvantageous position compared to a man.

"Since the Labor Law and the Law on Civil Servants and State Employees prescribe equal conditions for termination of employment by force of law, which is 66 years according to the Labor Law, or 67 years according to the Law on Civil Servants and State Employees. The Law on PIO prescribes the possibility , not the obligation, for every woman to realize the right to an old-age pension before the termination of the employment relationship by force of law, if she wants it, and that the said legal solution represents positive discrimination".

"Also, the judges who separated the opinion are of the opinion that there was no comprehensive analysis of the decisions of the Court of Justice of the European Union and the European Court of Human Rights in which prescribing different conditions for exercising the right to an old-age pension did not constitute discrimination, and which are based on the Treaty on the Functioning of the European of the Union and numerous official documents of the ILO (International Labor Organization), according to which women are allowed the right to choose to exercise the right to an old-age pension before acquiring the conditions for termination of employment by force of law, if they are allowed to work under the same conditions, i.e. until the same age limit as well as men, which means that it is about the application of law. They believe that in this particular case, two conditions required by the ECtHR regarding discrimination are not met, namely that it is necessary for the individual to be the victim of less favorable treatment due to his status affiliation and that equal treatment not be reasonable and justified. By abolishing this provision, the Constitutional Court is reforming the social policy, because the only condition for exercising the right to an old-age pension prescribed by the PIO Act is 40 years of service and at least 61 years of life, which assumes that a citizen who by force of law stops working due to reaching 66 or 67 years of age, the relationship would not be able to exercise the right to retire before reaching 40 years of insurance service. They agree with the opinion of the majority that by fulfilling the legal conditions for acquiring the right to an old-age pension, the insured "acquires" the right to exercise the right to an old-age pension, and not the obligation to exercise that right by force of law, for which reasons they considered that such an attitude additionally strengthens the conclusion that the provision of Article 17 paragraph 1 is not unconstitutional," the announcement states.

The court refused to determine the constitutionality of the legal provision which stipulates that "the insured acquires the right to an old-age pension when he reaches 40 years of insurance service and 61 years of life".

Numerous public officials were forced to retire based on the now invalid provisions of the PIO Act.

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