February 02, 2017

Initiative for Reviewing the Constitutionality of the Law on Social and Child Protection

CONSTITUTIONAL COURT OF MONTENEGRO

Pursuant to Article 150 of the Constitution of Montenegro, the Union of Free Trade Unions hereby submits the following

I N I T I A T I V E

for reviewing the constitutionality of the following provision:

- Article 176b of the Law on Social and Child Protection (“Official Gazette of Montenegro” no. 27/2013, 1/2015, 42/2015, 56/2016, 66/2016 and 1/2017)

Explanation

Law on Amendments of the Law on Social and Child Protection, published in the “Official Gazette of Montenegro” no 1/2017 of 09/01/2017 and entered into force on 17/01/2017, amended the provisions 54a and 54b of the Law in a way that the lifetime monthly compensation for women who gave birth to three or more children, shall be determined in notional amount (EUR264 and EUR144) significantly lower than originally defined (EUR336 and EUR192). The contested provision of Article 176b of the Law provides the following:

“Persons, who have exercised the right under Articles 54a and 54b of this Law until the date of entry into force thereof, shall continue to use this right, that is, compensation in the amount determined by this Law. Decision on fees adopted on the basis of Articles 54a and 54b of this Law, social work centers shall harmonize with this Law within 30 days from the date of entry into force of this Law."

That provision retroactively reduces the lifetime monthly compensation for women who have given birth to three or more children, which are the compensation made on the basis of final and definitive decisions in the amount of 70% and 40% of the average net salary in Montenegro in the year preceding the one when exercising this right.

Article 176b of the Law on Social and Child Protection is not in conformity with the Constitution, which in Article 147 paragraph 1 describes that "the law and other regulations may not have retroactive effect." Exceptionally, the Constitution stipulates that "certain provisions of the law, if required by the public interest established in the legislative process, may have retroactive effect." However, in this particular case when adopting this contested provision, no public interest is determined or mentioned. Contrary to that, the original provisions of Article 54a and 54b of the Law are based on the public interest which is reflected in Article 73 paragraph 2 of the Constitution, which provides that "The State shall create the conditions that encourage childbirth."

It is especially important to emphasize that this is an acquired right, that is, a lifetime monthly compensation exercised on the basis of a legally binding and final decision, therefore, the application of the disputed Article 176b would bring into question legal security of the beneficiaries of that right. This especially when one takes into account that many of these beneficiaries renounced some other right, which was a prerequisite for entitlement to this lifetime monthly compensation. The principle of legal certainty means that citizens can rely on the clear meaning of the regulations governing their rights, in order to be able to foresee the consequences that might arise due to compliance or non-compliance with these regulations. In other words, every citizen in legal relations must know their position which no subsequent change in the legal system can change. In this case, it is clear that the retroactive application of the contested Article 176b would constitute a gross violation of the principles of legal certainty and it would have a lasting and severe consequences for many beneficiaries of this compensation, the right, which at the moment of its exercise, was determined in a lifetime monthly amount of EUR336, that is, EUR192. In addition, if the contested Article 176b remains in force, it would open the possibility that in the future any other right of citizens, established by valid and final legal acts, could be called into question.

It should also be borne in mind that the principle of legal certainty is one of the general principles of European Union law, which derives from the practice of the Court of the European Union. Having in mind this fact, it is expected that, in the case that a contested Article 176b remains in force, numerous cases are filed before the Court of the European Union (there are over 23,000 beneficiaries of this compensation) that could have significant adverse consequences for our country.

For the reasons stated above, we propose that the Constitutional Court of Montenegro adopt this Initiative, initiate proceedings to review the compliance of Article 176b of the Law on Social and Child Protection with the Constitution, and render the following

D E C I S I O N

That shall determine that the provisions of Article 176b of the Law on Social and Child Protection ("Official Gazette of Montenegro", no. 27/2013, 1/2015, 42/2015, 56/2016, 66/2016 and 1/2017) are not in accordance with the Constitution and that they shall cease to be valid as of the day of publication of the decision in the Official Gazette of Montenegro.

At the same time, because of the possible occurrence of unavoidable adverse consequences, we propose that the Constitutional Court issue a Decision that will order the centers for social work to stop further action on harmonization of the decision on compensation based on the birth of three children until a final decision on this Initiative is rendered.

Secretary General
Srdja Kekovic

back