Regulation which requires that periods of employment abroad should be taken into account as contributory periods, on condition that a given person’s repatriate status has been confirmed by the submission of a relevant official decision SK 17/09
The requirement that periods of employment abroad should be taken into account as contributory periods, on condition that a given person’s repatriate status has been confirmed by the submission of a relevant official decision, is consistent with the Constitution.
At the hearing on 29 May 2012 at 1 p.m., the Constitutional Tribunal considered a constitutional complaint, submitted by Ms Luba W.-Z., which concerned the regulation which required that periods of employment abroad should be taken into account as contributory periods, on condition that a given person’s repatriate status had been confirmed by the submission of a relevant official decision.
The Constitutional Tribunal adjudicated that Article 6(1)(9) of the Act of 17 December 1998 on Old-Age and Disability Pensions from the Social Insurance Fund - in conjunction with Article 41(1)(1) and Article (1)(4) as well as Article 16(4) of the Act of 9 November 2000 on Repatriation - insofar as it required that periods of employment abroad should be taken into account as contributory periods, on condition that a given person’s repatriate status had been confirmed by the submission of a relevant official decision, was consistent with Article 67(1) in conjunction with Article 2 and Article 32(1) of the Constitution. As to the remainder of the complaint, the Tribunal discontinued the proceedings.
The Tribunal stated that, in the context of social security, Article 67(1) of the Constitution did not imply an obligation to treat persons who had been granted repatriate status more favourably than persons who had acquired Polish citizenship in a different way; neither did it imply the right of a common court to regard non-contributory periods as contributory periods after carrying out proceedings to receive evidence. Within the scope of freedom to shape the social security system, the legislator is authorised to require that the right to an old-age pension is acquired on condition that a person concerned has been granted repatriate status and has submitted a document confirming such status.
In the view of the Tribunal, the complainant’s lack of knowledge of the binding provisions of law did not constitutionally justify her claims. Indeed, she had the possibility of familiarising herself with the Act on Repatriation and of meeting the requirement set out in Article 41(1)(1) of the Act, in particular that the said provision provided for a period no shorter than 12 months (from the date of the entry into force of the Act) for lodging an application for repatriate status with a voivode who was competent in that regard based on the applicant’s place of residence. The legislator’s powers include not only determining the date of the entry into force of a given statute, but also specifying to what situations, events and relations (in terms of the time when they occur and end) the norms of the statute shall apply. Taking into account the length of that period and the entire Act on Repatriation, the Tribunal stated that the legislator had not gone beyond the scope of freedom provided for him in the Constitution; hence, the challenged provisions are consistent with the principle of protection of citizens' trust in the state and its laws.
The Tribunal noted that the legislator made it possible for the complainant, as well as for other persons who fulfilled the requirements set out in Article 41(1)(2) and (3) of the Act on Repatriation, to acquire repatriate status, by providing for a 12-month period for lodging an application for repatriate status with a voivode who was competent in that regard based on the applicant’s place of residence.Therefore, the Tribunal adjudicated that the legislator had not infringed the principle of protection of acquired rights by requiring that a person concerned could acquire the right to an old-age pension only after s/he had been granted repatriate status within a period specified by statute.
The Tribunal found no infringements of the principle of appropriate legislation, as the challenged provisions had been formulated in a precise, clear and linguistically correct way. The addressees of the norms expressed therein could easily identify what requirements had to be met in order to acquire repatriate status and the ensuing old-age or disability benefits.
Also, the Tribunal stated that the challenged regulation was consistent with the principle of equality before the law and the principle of social justice, since the persons referred to in Article 109 of the Act of 1997 on Foreigners and the addressees of Article 41(1) of the Act on Repatriation might not be regarded as similar parties. The Tribunal added that, due to the way of acquiring Polish citizenship, and the legal consequences related thereto in the context of social security, the following parties were not similar either: persons who had acquired Polish citizenship by virtue of having been born to Polish parents and the addressees of Article 41(1) of the Act on Repatriation.
The hearing was presided over by Judge Zbigniew Cieślak, and the Judge Rapporteur was the President of the Constitutional Tribunal, Judge Andrzej Rzepliński.
The judgment is final and its operative part shall be published in the Journal of Laws.