The old-age pensions of persons who were not employed in Poland prior to going abroad P 35/10
It is inconsistent with the constitutional principle of equality to make determining the basis of assessment of an old-age or disability pension conditional on whether a given worker was employed in Poland prior to going abroad.
At the hearing on 2 July 2012 at noon, the Constitutional Tribunal considered a question of law, referred by the Circuit Court in Gorzów Wielkopolski (the 6th Labour and Social Insurance Division), concerning the old-age pensions of persons who were not employed in Poland prior to going abroad.
The Constitutional Tribunal adjudicated that § 10(2) of the Regulation of the Council of Ministers, dated 1 April 1985, on the detailed rules for determining the basis of assessment of old-age and disability pensions - insofar as it made determining the basis of assessment of an old-age or disability pension conditional on whether a given worker had been employed in Poland prior to going abroad - was inconsistent with the constitutional principle of equality. The Tribunal discontinued the proceedings as to the remainder.
There was one dissenting opinion, submitted by Judge Marek Zubik.
The Constitutional Tribunal pointed out that the challenged provision indicated that if a given worker had been employed abroad before 1 January 1991, the basis of assessment of an old-age or disability pension was determined by assuming the amount of remuneration which, during that period, had been provided for a worker who had been employed in Poland and had done the same or similar job as the one performed by the said worker prior to going abroad. The provision did not take into account the case where a given worker had not previously been employed in Poland, and working abroad was his/her first employment. Such formulation of the provision of the Regulation introduced different ways of determining the basis of assessment of an old-age or disability pension for persons who had worked abroad before 1 January 1991, depending on whether they had previously been employed in Poland or not.
The Constitutional Tribunal assumed that an essential (relevant) characteristic in the context of which the introduced differentiation was to be evaluated was the fact that particular persons had performed the same job and had received the same remuneration abroad before 1991, and the rules for calculating their old-age pensions depended merely on whether those persons had previously been employed in Poland or not.
The Tribunal concluded that the said solution which differentiated between the legal situations of workers was inconsistent with Article 32(1) of the Constitution. Indeed, it introduced unjustified differentiation, and thus resulted in discriminating against a certain group of workers, when it came to determining the basis of assessment of an old-age or disability pension.
The hearing was presided over by Judge Zbigniew Cieślak, and the Judge Rapporteur was Judge Mirosław Granat.
The judgment is final and its operative part shall be published in the Journal of Laws.