Press release on the occasion of initiating the conformity assessment procedure of Art. 17 of the Law on Pension and Disability Insurance with the Constitution – the position of judges

Regarding the information that the Constitutional Court of Montenegro has initiated proceedings under the proposal of the Judicial Council for the conformity assessment of Art. 17 para. 1 and 2 of the Law on Pension and Disability Insurance with the Constitution and ratified and published international agreements, the Union of Free Trade Unions of Montenegro issues the following

PRESS RELEASE

“The Union of Free Trade Unions of Montenegro (UFTUM) expresses concern over the fact that the Constitutional Court of Montenegro, upon the proposal of the Judicial Council, initiated a procedure for assessing the conformity of Art. 17 para. 1 and 2 of the Law on Pension and Disability Insurance with the Constitution and ratified and published international agreements. Namely, on that occasion, the UFTUM has already addressed the Constitutional Court of Montenegro regarding a similar initiative submitted by the Association of Judges of Montenegro, stating the reasons why it should not have been accepted. Previously, primarily due to the fact that the mentioned proposal and initiative completely wrongly target the provisions of Art. 17 para. 1 and 2 of the Law on Pension and Disability Insurance as provisions of the law that judges in Montenegro bring into a discriminatory position, i.e. that the mentioned provisions violate the constitutional principles on the general prohibition of discrimination. This is because the Law on Pension and Disability Insurance, like all pension laws, determines when the conditions for retirement are met (and not when court functions cease). The disputed provision of the Pension and Disability Insurance Act leaves the possibility for an employed man, i.e. an employed woman, to be able to exercise the right to an old-age pension, at the age of 66 and 64 respectively, and at least 15 years of pensionable service. On the other hand, the Labor Law leaves the possibility for an employed man, i.e. an employed woman, to be employed until the age of 67 and at least 15 years of insurance when, by force of law, their employment must be terminated. Therefore, when it comes to the position of an employed woman, the disputed provision of the Pension and Disability Insurance Act made a positive discrimination against a woman in relation to a man, having in mind the role and position of a woman in society and the labor market. Therefore, the disputed provision of the Pension and Disability Insurance Act does not discriminate against women in any way because it is not of an imperative nature.

In this particular case, the position of judges, in terms of termination of their function, is problematic in Article 121 paragraph 2 of the Constitution of Montenegro (i.e. its interpretation) which prescribes that a function for judge terminates “when he/she meets the conditions for exercising the right to old-age pension”. For this reason, the UFTUM considers that the subject of attention of the Judicial Council and the Association of Judges must have been the mentioned article of the Constitution of Montenegro, and not the provisions of the Law on Pension and Disability Insurance.

We hereby publicly appeal and point out that by repealing Article 17 para. 1 and 2 of the Law on Pension and Disability Insurance, the rights of approximately 165,000 employees in Montenegro (according to the data of the Tax Administration), i.e. over 205,000 employees (according to Monstat data) would be drastically denied. This provision, among others, is a result of a two-year social dialogue conducted between the representative unions and the Government of Montenegro and provides more favorable conditions for acquiring the right to an old-age pension that give men and women the opportunity to exercise their right to an old age pension before 67 years. This is extremely important for employees in many industries, such as: metal-mining complex, energy, trade, construction, forestry, utilities, etc. who, due to the difficulty of the job and the working conditions in which they perform those jobs, cannot psychophysically endure to remain on the labor market until the age of 67.”