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Content updated: 21-05-2019 13:00

The provisions of the Law on Sickness and Maternity Social Insurance under which sportswomen have no right to a maternity benefit declared unconstitutional

19-12-2018

By its ruling passed today, the Constitutional Court has declared the legal regulation laid down in Paragraph 2 of Article 16 of the Law on Sickness and Maternity Social Insurance (hereinafter referred to as the Law) (wording of 28 June 2016) to have been in conflict with Article 29 of the Constitution and the constitutional principle of justice, insofar as under this legal regulation, the right to receive a maternity benefit in accordance with the procedure provided for in Article 17 of the Law was granted exclusively to a woman whose employment contract had expired or who had been removed from office, provided she had completed the required maternity social insurance period, specified in Item 3 of Paragraph 1 of Article 16 of the Law. An analogous legal regulation established in Paragraph 3 (wording of 5 December 2017) of Article 16 of the Law, which is currently in force, has also been ruled in conflict with Article 29 of the Constitution and the constitutional principle of justice.

In this constitutional justice case, the Vilnius Regional Administrative Court, the petitioner, requested an investigation into the compliance of Paragraph 2 of Article 16 of the Law with Article 29 of the Constitution, which consolidates the principle of the equality of the rights of persons, and Paragraph 2 of Article 39 of the Constitution, under which the law must make a provision for working mothers to be granted paid leave before and after childbirth, as well as favourable working conditions and other concessions, insofar as the said paragraph of the Law did not provide that a maternity benefit was paid in accordance with the procedure established in Article 17 of the Law to a woman who had received income from sport activity without having been respectively engaged on a self-employed basis, had completed the maternity social insurance period specified in Paragraph 1 of Article 16 of the Law, and had ceased her sport activity before the day of obtaining the right to a maternity benefit.

The Constitutional Court has held on more than one occasion that a person may implement his/her constitutional right to work (Paragraph 1 of Article 48 of the Constitution) in various ways. A person has the right to freely decide whether to choose an occupation in the private or public sector, to work under an employment contract or enter state service, or to engage in self-employment activities (including sport activity) or other working (professional) activities. 

In view of this, under Paragraph 2 of Article 39 of the Constitution, the guarantee of paid leave before and after childbirth may be applied not only to those mothers who choose an occupation under an employment contract or enter state service while implementing their constitutional right to work. Therefore, having chosen the model of payment for paid leave before and after childbirth based on social insurance and having established that this insurance covers not only persons who have employment or state service relationships, but also persons engaged in other working (professional) activities, among them self-employed persons, the legislature must, under Paragraph 2 of Article 39 of the Constitution, also ensure the constitutional guarantee of paid leave before and after childbirth for those mothers who are covered by social insurance and are self-employed or engage in other professional activities.

The Constitutional Court noted in the ruling that Paragraph 2 of Article 38 of the Constitution consolidates the obligation of the state to protect and take care of motherhood and childhood. The said obligation implies the discretion of the state, taking account of its material and financial capabilities, to grant mothers other than those who are working the same guarantee (of a maternity benefit paid during leave before and after childbirth) as consolidated in Paragraph 2 of Article 39 of the Constitution. Having chosen the model of payment for paid leave before and after childbirth based on social insurance, the legislature may also grant such a guarantee to those mothers who have contributed to social insurance to the extent provided for by law (have paid the respective social insurance contributions or these contributions have been paid for them) but have ceased their working (professional) activity before the day on which they would become entitled to paid leave before and after childbirth.

The Constitutional Court emphasised that such a legal regulation must comply with the norms and principles of the Constitution, among others, the constitutional principles of the equality of the rights of persons and justice. Thus, under the principle of the equality of the rights of persons, as consolidated in Article 29 of the Constitution, and the constitutional principle of justice, the legislature is prohibited from differently treating mothers who have had employment or state service relationships and those who have not had such relationships, among them self-employed mothers who have contributed to social insurance to the extent provided for by law (have paid social insurance contributions or these contributions have been paid for them).

Assessing the legal regulation laid down in the impugned Paragraph 2 of Article 16 of the Law, the Constitutional Court noted that, under this legal regulation, the right to receive a maternity benefit for the period provided for in Article 17 of the Law had been granted to a woman who had had employment or service (including state service) relationships provided that one compulsory condition had been met, i.e. a woman must have completed the required maternity social insurance period (of at least 12 months during the last 24 months), specified in Item 3 of Paragraph 1 of Article 16 of the Law. Whereas other women, including women who have employment or service (including state service) relationships or are self-employed (among other things, receive income from sport activities), must meet three conditions: the above-mentioned condition of having completed the required maternity social insurance period and two other conditions established in Items 1 and 2 of Paragraph 1 of Article 16 of the Law, i.e. they must be covered by maternity social insurance on the day of obtaining the right to a maternity benefit and must be on pregnancy and childbirth leave in accordance with the procedure established by law or, based on a certificate confirming pregnancy and childbirth leave, must be treated as persons who are granted pregnancy and childbirth leave.

Thus, under the legal regulation laid down in Paragraph 2 of Article 16 of the Law, a woman who had had employment or service (including state service) relationships and had completed the maternity social insurance period specified in Item 3 of Paragraph 1 of this article was paid a maternity benefit for the period provided for in Article 17 of the Law, while a woman who had completed the same social insurance period but had not had employment or service relationships, among other things, had been self-employed (had received income from sport activity) and had ceased her working (professional) activity was not paid a maternity benefit.

Consequently, having exercised its discretion to establish the same guarantee as consolidated in Paragraph 2 of Article 39 of the Constitution for mothers other than those who are working and having granted, by means of the legal regulation laid down in Paragraph 2 of Article 16 of the Law, the said guarantee exclusively to a woman who had had employment or service relationships, the legislature disregarded the requirements of Article 29 of the Constitution (the principle of the equality of the rights of persons) and the constitutional principle of justice. According to these requirements, if the legislature decides to establish the same guarantee (a maternity benefit paid during leave before and after childbirth) as consolidated in Paragraph 2 of Article 39 of the Constitution for mothers who have ceased their working (professional) activities, this guarantee should be granted to all women who have completed the same social insurance period.

On the grounds of the same arguments, Paragraph 3 (wording of 5 December 2017) of Article 16 of the Law, which is currently in force, was also ruled to be in conflict with Article 29 of the Constitution and the constitutional principle of justice.

The Constitutional Court noted that, in terms of the application of law, declaring the legal regulation laid down in Paragraph 3 (wording of 5 December 2017) of Article 16 of the Law in conflict with Article 29 of the Constitution and the constitutional principle of justice amounts to changing the legal regulation. Upon the entry into force of this ruling of the Constitutional Court, under Paragraph 3 of Article 16 of the Law, all women who have completed the required maternity social insurance period (of at least 12 months during the last 24 months), specified in Item 3 of Paragraph 1 of the same article, and have ceased their working (professional) activity before the day on which they would, under the procedure established by law, become entitled to paid leave before and after childbirth have the right to receive maternity benefits in accordance with the procedure provided for in Article 17 of the Law.

This ruling of the Constitutional Court will come into force on the day of its official publication in the Register of Legal Acts.

The full text of this ruling of the Constitutional Court can be found on the website of the Constitutional Court at http://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta1885/content.