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On awarding maternity, paternity, maternity (paternity) benefits and limitation upon payment thereof, as well as on limitation upon the right of customs officials to hold another job

Case No. 15/2008-19/2010-25/2010-106/2010-27/2011-36/2011

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF THE REPUBLIC OF LITHUANIA LAW ON SICKNESS AND MATERNITY SOCIAL INSURANCE, THE STATUTE OF SERVICE IN THE CUSTOMS OF THE REPUBLIC OF LITHUANIA AND THE REGULATIONS ON SOCIAL INSURANCE BENEFITS OF SICKNESS AND MATERNITY AS APPROVED BY RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA NO. 86 OF 25 JANUARY 2001 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 27 February 2012

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representative of the Vilnius Regional Administrative Court, a petitioner, who was the judge Ernestas Spruogis,

in the presence of the representatives of the Government of the Republic of Lithuania, a party concerned, who were Rita Visockienė, Head of the Law Division of the Ministry of Social Security and Labour of the Republic of Lithuania, Alfreda Šatrauskienė, Deputy Director of the Social Insurance and Pensions Department of this Ministry, and Gintarė Vizbaraitė, chief specialist of the Social Insurance Division of this department, as well as Vaida Mackevičienė, Deputy Head of the Benefits and Incapacity for Work Control Section of the State Social Insurance Fund Board under the Ministry of Social Security and Labour,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 27 January 2012, in its public hearing heard constitutional justice case No. 15/2008-19/2010-25/2010-106/2010-27/2011-36/2011 subsequent to:

1) the petitions of the Vilnius Regional Administrative Court, a petitioner, requesting to investigate whether:

– Item 4 of Paragraph 1 of Article 15 of the Statute of Service in the Customs of the Republic of Lithuania (wording of 19 June 2003) approved by the Republic of Lithuania Law on the Approval and Implementation of the Statute of Service in the Customs of the Republic of Lithuania is not in conflict with Article 29 of the Constitution of the Republic of Lithuania and with the provision of Paragraph 1 of Article 48 thereof that each human being may freely choose a job or business, with the constitutional principle of a state under the rule of law, as well as whether Paragraph 4 (wording of 4 December 2007) of Article 21 of the Republic of Lithuania Law on Sickness and Maternity Social Insurance is not in conflict with Article 29 of the Constitution of the Republic of Lithuania, the provision of Paragraph 1 of Article 48 thereof that each human being shall have the right to receive fair pay for work and social security in the event of unemployment, and Article 52 thereof (petition No. 16/2008);

– Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Republic of Lithuania Law on Sickness and Maternity Social Insurance, insofar as it establishes that the paternity benefit shall not be awarded in the case when the income of the father of a child on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation, is not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-21/2010);

– Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Republic of Lithuania Law on Sickness and Maternity Social Insurance, insofar as it establishes that the maternity benefit shall not be awarded in the case when the income of the woman on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation, is not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-27/2010);

– Paragraph 4 (wording of 17 June 2008) of Article 21 of the Republic of Lithuania Law on Sickness and Maternity Social Insurance, insofar as it does not establish that one shall not deduct the actually non-received income (on which the social insurance contributions have been paid) from the maternity (paternity) benefit received by the insured person who has taken a child-care leave, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law (petitions No. 1B-119/2010 and 1B-44/2011);

– Item 481 (wording of 16 January 2008) of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government of the Republic of Lithuania Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001 is not in conflict with Article 29 of the Constitution of the Republic of Lithuania, with the provision of Paragraph 1 of Article 48 thereof that each human being shall have the right to receive fair pay for work and social security in the event of unemployment, and Article 52 thereof (petition No. 1B-16/2008);

– the provision that the persons “shall be paid a maternity benefit if they do not have any income on which sickness and maternity social insurance contributions are calculated” of Item 41 (wording of 8 April 2009) of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government of the Republic of Lithuania Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001, insofar as it establishes that the maternity benefit shall not be awarded in such a case when the income of a woman on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation, is not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-27/2010);

2) the petition of the Kaunas Regional Administrative Court, a petitioner, requesting to investigate whether the second paragraph (wording of 16 January 2008) of Item 49 of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government of the Republic of Lithuania Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001 is not in conflict with Articles 29, 38 and 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law (petition No. 1B-27/2011).

By the Constitutional Court decision of 19 January 2012, the petitions of the petitioners were joined into one case and it was given reference No. 15/2008-19/2010-25/2010-106/2010-27/2011-36/2011.

The Constitutional Court

has established:

I

  1. The petition of the Vilnius Regional Administrative Court, a petitioner, regarding the compliance of Item 4 of Paragraph 1 of Article 15 of the Statute of Service in the Customs of the Republic of Lithuania (hereinafter also referred to as the Statute) (wording of 19 June 2003) approved by the Law on the Approval and Implementation of the Statute of Service in the Customs of the Republic of Lithuania with the Constitution is substantiated by the following arguments (petition No. 1B-16/2008).

The limitations on the customs official to work in another work place established in Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) are virtually analogous to those enshrined for the state servants by the provision of Article 17 of the Republic of Lithuania Law on the State Service which was recognised as being in conflict with the Constitution by the Constitutional Court ruling of 13 December 2004.

One establishes special requirements for customs officials as statutory state servants which are not applicable for other state servants; however, one is to doubt whether the prohibition entrenched in Item 4 of Paragraph 1 of Article 15 of the Statute is proportionate to the objective sought (to help to avoid the conflict between public and private interests in the state service, to ensure that the state service and opportunities provided by it are not used for ensuring private interests rather than the public interest, that a state servant is not hindered from performing his official duties, that no harm is made to the authority of the state service or respective state or municipal institution, that they are not discredited, that one would prevent state servants from working in the enterprises, establishments, organisations, in regard to which they enjoy powers of management or the activity of which they control or supervise, or adopt any other decisions related to this enterprise, establishment or organisation (or participate in drafting and executing these decisions, coordinating and/or controlling the implementation thereof, etc.)). Therefore, the petitioner doubts whether by the disputed legal regulation one pays heed to the constitutional concept of the state service, whether one does not violate the constitutional principle of a state under the rule of law and the provision of Paragraph 1 of Article 48 of the Constitution that each human being may freely choose a job or business. By invoking the official constitutional doctrine of the principle of equality of persons (Article 29 of the Constitution), the petitioner also doubts whether such differences between the status of the customs officers and other state servants exist that different restrictions to work in another work place would be objectively justified.

  1. The petitions of the Vilnius Regional Administrative Court, a petitioner, regarding the compliance of Items 1 and 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law on Sickness and Maternity Social Insurance (hereinafter also referred to as the Law) with the Constitution are substantiated by the following arguments (petitions Nos. 1B-21/2010, 1B-27/2010).

According to the petitioner (petition No. 1B-27/2010), under Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, maternity benefits are awarded only in the case when a woman does not have the income on which sickness and maternity social insurance contributions are calculated. Thus, maternity benefits are not awarded even in such a case when the income of a woman on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation. In addition, by such legal regulation one violates the equal rights of persons who received the income in comparison with the persons who have not received any income. Such legal regulation, in the opinion of the petitioner, is in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

According to the petitioner (petition No. 1B-21/2010), under Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, paternity benefits are awarded only in the case, when the father of a child does not have the income on which sickness and maternity social insurance contributions are calculated. Thus, paternity benefits are not awarded even in such case when the income of the father of a child on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation. In addition, by such legal regulation one violates the equal rights of persons who received the income in comparison with the persons who have not received any income. Such legal regulation, in the opinion of the petitioner, is in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

  1. The petition of the Vilnius Regional Administrative Court, a petitioner, regarding the compliance of Item 41 (wording of 8 April 2009) of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” (hereinafter also referred to as the Regulations) of 25 January 2001 with the Constitution (petition No. 1B-27/2010) is substantiated virtually by the same arguments as is the petition of this petitioner regarding the compliance of Item 1 of Paragraph 5 (wording of 18 December 2008) of the Law.
  2. The petitions of the Vilnius Regional Administrative Court, a petitioner, regarding the compliance of Paragraph 4 (wordings of 4 December 2007 and 17 June 2008) of Article 21 of the Law with the Constitution are substantiated by the following arguments (petitions Nos. 1B-16/2008, 1B-119/2010, 1B-44/2011).

4.1. Substantiating its doubts regarding the compliance of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law with the Constitution (petition No. 1B-16/2008), the petitioner notes that by the disputed legal regulation, one limits the right to receive the maternity (paternity) benefit taking account of the fact that a person has the insured income, i.e. continues to work in another work place (places) under the employment contract or works under an author’s agreement, etc. The person does not receive a part of the income even though working in all of his workplaces he pays contributions from all his insured income, thus, the petitioner has doubts whether by such legal regulation one guarantees the obligation of the state, which is established in Article 52 of the Constitution, to take care of its citizens who are not supported enough, and the right of a human being, which is entrenched in Paragraph 1 of Article 48 of the Constitution, to receive fair pay for work and social security in the event of unemployment.

The petitioner disputes the compliance of the said legal regulation with the principle of equality of persons enshrined in Article 29 of the Constitution due to the fact that a citizen of the Republic of Lithuania, who does not have the insured income in Lithuania, but who works in another state, an international organisation, an institution of the European Union, etc., and who receives a certain income from which no contributions are paid to the State Social Insurance Fund, has the unlimited right to receive a maternity (paternity) benefit irrespective of the income he receives, while a citizen of the Republic of Lithuania, who has the insured income in the Republic of Lithuania and who pays contributions to the State Social Insurance Fund, does not have this right.

4.2. In its petition regarding the compliance of Paragraph 4 (wording of 17 June 2008) of Article 21 of the Constitution (petition No. 1B-119/2010), the petitioner notes that under Paragraph 3 (wording of 22 July 2009) of Article 4 of the Republic of Lithuania Law on State Social Insurance, self-employed persons shall be covered on a compulsory bases inter alia by sickness and maternity social insurance to receive paternity and maternity benefits. Under Item 1 of Paragraph 2 (wording of 22 July 2009 which came into force on 1 January 2010) of Article 7 of the Law on State Social Security, the base of social insurance contributions of an owner of the individual enterprise during the month of a calendar year may not be smaller than the minimum monthly salary; this provision is not applied if the individual enterprise does not perform its activity temporarily and has declared that under the procedure established in the Republic of Lithuania Law on Tax Administration and the laws implementing it. According to the petitioner, such legal regulation implies the duty of the owner of the individual enterprise to pay social insurance contributions irrespective of the fact whether he actually receives any income. Under Paragraph 2 of Article 3 of the Law, the insured income of the insured person shall be inter alia all the income of a person from which one paid or had to pay state social insurance contributions for the sickness and maternity social insurance. The disputed Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law establishes that if the insured person who has been or is on childcare leave possesses the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference of this benefit (the sum total of these benefits) and the insured amount held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity established by the Government. Thus, also the income which was actually not received is considered as the insured income of the insured person and deducted from the maternity (paternity) benefit awarded to the person, and, therefore, the right of a person to social security (Article 52 of the Constitution) is limited and the constitutional principle of a state under the rule of law is violated.

4.3. Substantiating its doubts regarding the compliance of Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law with the Constitution (petition No. 1B-44/2011), the petitioner notes that, according to Paragraph 2 of Article 3 of the Law, the insured income of the insured person shall be all the income of the person from which state social insurance contributions for the social insurance of sickness and maternity were paid or had to be paid. The income on which social insurance contributions are calculated is established in Article 7 (wording of 19 December 2008, which came into force on 1 January 2009) of the Law on State Social Insurance, Paragraph 2 whereof establishes that social insurance contributions shall be calculated and paid from the annual sum of the income received during the preceding year; the annual sum of the income of the owner of the individual enterprise is composed of the taxed profit, calculated under the Republic of Lithuania Law on Profit Tax, and the difference of the profit tax of the tax year.

Recognition of the profit of an enterprise as income on which social insurance contributions are calculated provides with the ground for application of the provision of Paragraph 4 of Article 21 of the Law regarding the deduction of the received income from the awarded maternity (paternity) benefit. According to the petitioner, in such a way one deducts this non-received income—the profit obtained by the individual enterprise—from the maternity (paternity) benefit paid to the person . The legal regulation established in Paragraph 4 of Article 21 of the Law, under which, if a person has any insured income, the maternity (paternity) benefit is deducted by the amount of this income, is determined by the fact that a person has other income, by which he compensates the loss of a part of the maternity (paternity) benefit. The purpose of awarding the maternity (paternity) benefit is to compensate the income lost by the person due to maternity (paternity) (Article 2 of the Law). When a person does not have actually any income, upon deducting the non-received funds from the maternity (paternity) benefit, the person loses a part of the property that belongs to him. Therefore, the petitioner had doubts whether Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, insofar as it does not establish that one shall not deduct the income which was actually not received and from which the social insurance contributions have been paid, from the maternity (paternity) benefit received by the insured person who has taken a childcare leave, is not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. The petition of the Vilnius Regional Administrative Court, a petitioner, regarding the compliance of Item 481 (wording of 16 January 2008) of the Regulations with the Constitution (petition No. 1B-16/2008) is substantiated by virtually the same arguments as is the petition of this petitioner regarding the compliance of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law with the Constitution.
  2. The petition of the Kaunas Regional Administrative Court, a petitioner, regarding the compliance of the second paragraph (wording of 16 January 2008) of Item 49 of the Regulations with the Constitution is substantiated by the following arguments (petition No. 1B-27/2011).

Under Paragraph 2 of the Regulations, in cases when one of the parents (adoptive parents) or a guardian, who has taken a childcare leave under the procedure established by means of a law and who receives a maternity (paternity) benefit, is dismissed from work on certain grounds and, on the day of this dismissal from work, is paid a severance pay or compensation for the unused annual holidays, the payment of the awarded maternity (paternity) benefits shall be continued irrespective of this insured income.

Paragraph 1 of Article 141 of the Labour Code of the Republic of Lithuania enshrines the provision that an employer must make a full settlement of accounts with an employee being dismissed from work on the day of his dismissal, unless a different procedure for settling accounts is provided by laws or an agreement between the employer and the employee, while Paragraph 4 of Article 41 of the Law on State Service establishes that payment of the severance pay shall start after one month from the day of dismissal of a state servant and shall be paid once a month in equal parts.

Thus, the second paragraph of Item 49 of the Regulations establishes an exception—the maternity (paternity) benefit is paid regardless of the insured income received by the person, i.e. the severance pay, and the application of this exception is related to the moment of payment of the severance pay to the person. Under this legal regulation, the persons who work under the employment contracts and state servants find themselves in different positions as the laws establish different procedures of payment of the severance pay. In the second paragraph of Item 49 of the Regulations, the persons who work under the employment contracts and the state servants are differentiated by such an aspect that one limits the payment of the maternity (paternity) benefit to the state servants, who, upon dismissal from work, are paid the severance pay after one month from the day of dismissal of the state servant. By such legal regulation, one violates Articles 29, 38 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

II

In the course of the preparation of the case for the Constitutional Court hearing, written explanations were received from the representatives of the Seimas, a party concerned, who were Members of the Seimas Jurgis Razma, Ingrida Valinskienė, Arvydas Vidžiūnas, as well as from the representatives of the Government, a party concerned, who were Alfreda Šatrauskienė, Deputy Director of the Social Insurance and Pensions Department of the Ministry of Social Security and Labour, and Gintarė Vizbaraitė, chief specialist of the Social Insurance Division of this department, and former representative of the Government, a party concerned, who was Irena Šambaraitė, the then Head of the Law Division of the Ministry of Social Security and Labour (pursuant to Prime Minister Ordinance No. 22 of 26 January 2012, I. Šambaraitė lost the powers to represent the Government in this constitutional justice case), as well as Vaida Mackevičienė, Deputy Head of the Benefits and Incapacity for Work Control Section of the State Social Insurance Fund Board under the Ministry of Social Security and Labour, and Valentina Lemežienė, Head of the Law Division of the Customs Department under the Ministry of Finance of the Republic of Lithuania, in which it is stated that the disputed legal regulation is not in conflict with the Constitution.

  1. The position of the representative of the Seimas (in the part of the case subsequent to petition of the petitioner No. 1B-16/2008), a party concerned, the Member of the Seimas Jurgis Razma regarding the compliance of Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) is substantiated by the following arguments.

The regulation of the right of the customs officers to work in another work place and to receive another remuneration which is established in the disputed Item of the Statute and which is differentiated in comparison to the one established for the state servants is justifiable when one takes account of the status and competence of the customs institutions. Such a position is substantiated by the following provisions of the official constitutional doctrine: taking account of the diversity of the state functions implemented through the corresponding institutions, the affinity of the state service system does not deny the opportunity to regulate certain relations of the state service in a differentiated manner; a differentiated legal regulation of the relations of state service is based on particularities of state (municipal) institutions and functions performed by them, the place of the said institutions in the system of all the institutions through which state functions are performed, as well as on powers established to them, the professional skills necessary to respective state servants and other important factors (Constitutional Court ruling of 13 December 2004).

  1. The position of the representatives of the Seimas, a party concerned, the Members of the Seimas A. Vidžiūnas (in the part of the case subsequent to the petition of the petitioner No. 1B-27/2010) and I. Valinskienė (in the part of the case subsequent to the petition of the petitioner No. 1B-21/2010) regarding the compliance of Items 1 and 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law with the Constitution and the position of V. Mackevičienė and I. Šambaraitė, the representatives of the Government, a party concerned (in the part of the case subsequent to the petition of the petitioner No. 1B-27/2010), regarding the compliance of the provision of Item 41 (wording of 8 April 2009) of the Regulations with the Constitution, are substantiated by the following arguments.

2.1. The Members of the Seimas A. Vidžiūnas (regarding Item 1 of Paragraph 5 of Article 5 of the Law) and I. Valinskienė (regarding Item 2 of Paragraph 5 of Article 5 of the Law) noted that the purpose of awarding maternity and paternity benefits is to compensate the income lost by the person due to maternity and paternity, since the person, due to the children who were born recently, breaks his occupational activity. Such regulation, under which maternity (paternity) benefit was not awarded to a mother during her maternity leave or a father of a child during the paternity leave who had the insured income complied with the principle of payment of these benefits—to compensate the lost income—which is established in the disputed law. In the event of any social risk, as well as of maternity, paternity, the social insurance system may not compensate and one does not seek, by means of this system, to compensate all the income lost due to the corresponding factors of social risk or to ensure larger income than one lost. Possession of the insured income during the period of payment of the maternity, paternity benefit is a sufficient ground to make an assumption that this income compensates a part of the income lost due to maternity, paternity.

2.2. The representatives of the Government V. Mackevičienė and I. Šambaraitė noted that, under the Law and Regulations, the maternity benefit is awarded when a certain insured event happens, i.e. upon issuance of a certificate of a pregnancy and childbirth leave, also, the person’s right to a benefit is related to certain facts—the person’s state of being insured by sickness or maternity social insurance, having a certain sickness and maternity social insurance record, loss of the income due to maternity. Therefore, the maternity benefit is paid to the persons who receive income under an author’s agreement as well as to other insured persons if at the time of pregnancy and childbirth leave they do not have any insured income. The income paid during the period when the maternity benefit was received, irrespective of the fact when it was earned, is qualified as possession of the insured income during the period when the maternity benefit is received. Thus, according to the provisions of the legal acts, one is not obliged to assess the period of performance of an author’s works—in the said legal acts one mentions only the fact and time of possession (receipt) of the insured income and it is regulated on what income the social insurance contributions are calculated.

The benefits are awarded and paid to all the insured persons, thus, also to those who receive the income under an author’s agreement, under equal conditions. The differences and particularities of the legal regulation are determined only by the specificity of an author’s agreement, they are substantiated by the different receipt of the income and may not be considered as violating the principle of equality of persons. If a woman, who works under the employment contract and who has been awarded a pregnancy and childbirth leave, has the insured income, she will not be paid the maternity benefit for the period when she had the insured income (irrespective of the amount of the insured income), either. Therefore, if the persons who receive income under an author’s agreement were paid the maternity benefit irrespective of the author’s remuneration received during the pregnancy and childbirth leave, one would violate the principle of equality of persons, as the conditions of other persons for receiving the maternity benefit would be worse.

  1. The position of the representatives of the Seimas, a party concerned, the Members of the Seimas J. Razma (in the part of the case subsequent to the petition of the petitioner No. 1B-16/2008) and A. Vidžiūnas (in the part of the case subsequent to the petitions of the petitioner No. 1B-119/2010, 1B-44/2011) regarding the compliance of Paragraph 4 (wordings of 4 December 2007 and 17 June 2008) of Article 21 of the Law with the Constitution and the position of A. Šatrauskienė and V. Mackevičienė, the representatives of the Government, a party concerned (in the part of the case subsequent to the petition of the petitioner No. 1B-16/2008), regarding the compliance of Item 481 (wording of 16 January 2008) of the Regulations with the Constitution are substantiated by the following arguments.

3.1. The representatives of the Seimas noted that possession of the insured income during the period of payment of the maternity (paternity) benefit is a factor, which may determine not only the reduction of the benefit, but also non-payment thereof in such a case when the insured income is larger than the benefit. The purpose of awarding maternity and paternity benefits is to compensate the income lost by the person due to maternity and paternity, since the person, due to the care for the children who were born recently, breaks his occupational activity. The legal provision of Paragraph 4 of Article 21 of the Law, under which, if a person has any insured income, the maternity (paternity) benefit is deducted by the amount of this income, stems from the fact that the person has other income, by which he compensates the loss of a part of the maternity (paternity) benefit. In the event of any social risk, as well as of maternity, paternity, the social insurance system may not compensate and one does not seek, by means of this system, to compensate all the income lost due to the corresponding factors of social risk or to ensure larger income than one lost. Possession of the insured income during the time period of payment of the maternity, paternity benefit is a sufficient ground to make an assumption that this income compensates a part of the income lost due to maternity, paternity.

According to the Member of the Seimas A. Vidžiūnas, non-suspension of activity of an individual enterprise during the period of payment of the maternity (paternity) benefit and payment of contributions to social insurance even if there is no real income from the activity of the individual enterprise creates a precondition to suppose that the insured person has the income of an amount of at least minimum monthly salary. Namely due to this fact, the sum of the amount of this income is to be deducted from the received maternity (paternity) benefit, as in other case one would violate the principle of the social insurance to compensate the lost income.

3.2. The representatives of the Government A. Šatrauskienė and V. Mackevičienė noted that the purpose of the sickness and maternity social insurance is to compensate the persons insured by the insurance of this kind, in the cases provided by laws, a part of the lost income due to sickness of such persons or sickness of members of their families or due to maternity, paternity, maternity (paternity), as well as a part of the non-received income due to participation in the programme of professional rehabilitation (Article 2 of the Law). Paragraph 4 of Article 21 of the Law clearly expresses the will of the legislator to pay the maternity (paternity) benefit upon assessment of the insured income of the recipient of the benefit (one assesses only the insured income of a person specified in Paragraph 2 of Article 3 of the Law, save the reckoned in sums of maternity, paternity and maternity (paternity) benefits). The recipients of the maternity (paternity) benefits, having evaluated their financial situation during the period of a childcare leave and possibility to coordinate work and childcare, decide themselves whether to use the childcare leave and receive all the calculated maternity (paternity) benefit or to work and receive a remuneration and a part of the maternity (paternity) benefit. The principle of compensation of income lost due to maternity (paternity) entrenched in Article 2 of the Law depends on the choice of the insured person, and the disputed norms of the Law and Regulations do not deprive the insured person of the right to receive the maternity (paternity) benefit.

When the maternity (paternity) benefit is paid, only the insured income of the person (i.e. the income from which contributions are paid to the sickness and maternity social insurance) is assessed. Such legal regulation is not linked to the fact where the person works—in Lithuania or abroad. Payment of maternity (paternity) benefits is related only to the fact of having the insured income. The income received by the person (as well as other persons) who has been awarded the childcare leave from which one does not have to pay contributions to the sickness and maternity social insurance is not assessed either while awarding or while paying benefits, no matter in which state the person receives that income. Neither the persons who work in foreign states (when the Republic of Lithuania Law is not applied) nor the persons who work under an author’s agreement or individually in Lithuania were insured by the sickness and maternity social insurance (at present, the persons who implement individual activity and hold business certificates are not insured), therefore, the income of these persons is not to be considered as the insured income (the social insurance contributions to sickness and maternity social insurance are not paid from this income). However, the conditions of payment of the maternity (paternity) benefit are equal to all the persons who have the insured income, and a person has the right to choose the model of social insurance benefits (support) which is the most suitable to him, i.e. he has the right to work and receive a part of the maternity (paternity) benefit or, using the leave to care for the child, to receive all the maternity (paternity) benefit.

The maternity (paternity) benefit is paid to the insured person who has been awarded a childcare leave. This leave is targeted—it is intended for taking care of a child (children). The legislator, pointing out this leave as a separate kind of leave, emphasises its importance and presumes that all the attention will be first of all dedicated for taking care of and raising the child. The purpose of the maternity (paternity) benefit is to compensate a part of the income from work which was lost or not received due to maternity (paternity), thus, if the insured person coordinates maternity (paternity) with work and receives enough income (larger than the benefit itself), the legislator assumes that the support from the state is not necessary for him.

  1. The position of V. Mackevičienė and G. Vizbaraitė, the representatives of the Government, a party concerned, regarding the compliance of the second paragraph (wording of 16 January 2008) of Item 49 of the Regulations with the Constitution is substantiated by the following arguments.

Paragraph 4 of Article 21 of the Law and Item 481 of the Regulations clearly express the will of the legislator to pay the maternity (paternity) benefit upon assessment of the insured income of the recipient of the benefit (one assesses only the insured income of a person specified in Paragraph 2 of Article 3 of the Law, save the reckoned in sums of the maternity, paternity and maternity (paternity) benefits). Because of the fact that the state social insurance contributions are calculated and paid also from the severance pays which are paid for the state servants, this income is attributed to the insured income, and only in such cases, when, on the day of dismissal from work, a person is paid a severance pay or compensation for the unused annual holidays, the payment of the awarded maternity (paternity) benefit is continued regardless of this insured income.

The severance pays which are paid on the day of their dismissal from work to the insured persons who had worked under the employment contracts are assessed in the same way when the maternity (paternity) benefit is paid, i.e. they are not taken into account when the benefit is paid. When the maternity (paternity) benefit is paid, one also disregards of the severance pay paid to the state servants who are being dismissed from office on the day of their dismissal (according to Paragraph 1 of Article 41 of the Law on State Service, the state servant dismissed from office on the grounds specified in Items 12 and 13 of Paragraph 1 and Paragraph 2 of Article 44 of this law, shall be paid, on the day of his dismissal, the severance pay equal to two average salaries). Thus, the rule entrenched in the second paragraph of Item 49 of the Regulations applies not to a separate group of persons, but to all the recipients of the maternity (paternity) benefits who are paid severance pays on the day of their dismissal from work.


III

  1. At the Constitutional Court hearing, the judge E. Spruogis, the representative of the Vilnius Regional Administrative Court, a petitioner, virtually reiterated the arguments set forth in the petition of the petitioner and answered the questions of the justices of the Constitutional Court.
  2. At the Constitutional Court hearing, V. Mackevičienė, R. Visockienė, A. Šatrauskienė, G. Vizbaraitė, the representatives of the Government, a party concerned, virtually reiterated the arguments set forth in the petition of the petitioner and answered the questions of the justices of the Constitutional Court.

The Constitutional Court

holds that:

I

  1. In the constitutional justice case at issue one is disputing inter alia the provisions of legal acts, whereby the awarding and payment of maternity, paternity, maternity (paternity) benefits at the time of pregnancy and childbirth leave, parental and childcare leave are regulated. While assessing the compliance of these provisions with the Constitution, in the constitutional justice case at issue it is necessary to disclose important aspects of the constitutional guarantees of protection of the family, maternity, paternity and childhood.
  2. The constitutional grounds for protection of the family, motherhood, fatherhood, and childhood are entrenched in Articles 38 and 39 of the Constitution.

Paragraphs 1 and 2 of Article 38 of the Constitution prescribe:

“The family shall be the basis of society and the State.

Family, motherhood, fatherhood and childhood shall be under the protection and care of the State.”

The Constitutional Court has held that these provisions of Paragraphs 1 and 2 of Article 38 of the Constitution express an obligation of the state to establish, by means of laws and other legal acts, such legal regulation that would ensure that the family, as well as motherhood, fatherhood and childhood, as constitutional values, would be fostered and protected in all ways possible (Constitutional Court rulings of 13 June 2000 5 March 2004 and 28 September 2011). Paragraphs 1 and 2 of Article 38 of the Constitution consolidate the most general constitutional principles (Constitutional Court rulings of 5 March 2004 and 28 September 2011).

The state protection and care guaranteed in Paragraph 2 of Article 38 of the Constitution is implemented by various ways in creating a favourable environment for the family, motherhood, fatherhood and childhood as constitutional values. The constitutional self-obligation of the state to protect and care for the family, motherhood, fatherhood and childhood is in certain aspects expressed, as a general principle, also in other provisions of the Constitution, inter alia in the following paragraphs (which are important to the case at issue) thereof—Paragraph 1 of Article 39 wherein the state care and support is guaranteed to families that raise and bring up children at home, and Paragraph 2 of the same article, wherein working mothers are insured a paid leave before and after childbirth as well as favourable working conditions and other concessions. However, the imperative entrenched in Paragraph 2 of Article 38 of the Constitution, whereby family, motherhood, fatherhood and childhood shall be under the protection and care of the state, may not be construed as including the protection guarantees only of the aforementioned constitutional values entrenched in Paragraphs 1 and 2 of Article 39 of the Constitution—in the course of implementation of the constitutional obligation of the state to create a favourable environment for the family, motherhood, fatherhood and childhood various forms of protection and support thereof may be developed, inter alia: the conditions are ensured for parents to coordinate work (professional) activities with the duties related to raising and bringing up children; a sufficient network of child care and education institutions is created, assisting the family in discharging the functions of upbringing and education of children, other necessary infrastructure necessary for fostering the family, motherhood, fatherhood and childhood as constitutional values is developed; while taking account of the needs of families and the capabilities of society and the state, a certain level of support is guaranteed also to non-working mothers, also support to families raising underage children of various age, and not only children of early age, at home. In this area the legislator, while taking account of various social, demographic and economic factors, inter alia the material and financial opportunities of the state, enjoys broad discretion to choose concrete instruments of protection and support.

Alongside, in this context it needs to be noted that the self-obligation to protect and care for the family, motherhood, fatherhood and childhood, which is entrenched in Paragraph 2 of Article 38 of the Constitution, may not be construed in isolation from inter alia the right and duty of the parents to bring up their children to be honest people and faithful citizens and to support them until they come of age, which is entrenched in Paragraph 6 of this article; it implies that it is first of all the parents who are responsible for raising and upbringing of their children and their support until they come of age.

  1. Paragraph 1 of Article 39 of the Constitution prescribes: “The State shall take care of families that raise and bring up children at home, and shall render them support according to the procedure established by law.”

The state guarantee of care and support for the families that raise and bring up children at home is entrenched in Paragraph 1 of Article 39 of the Constitution. The legislator may establish various forms of implementation thereof, inter alia: provide for rendition of financial support; ensure a possibility for parents to make use of leave for raising and upbringing children at home; develop flexible forms of work, which create favourable conditions for working parents to coordinate raising and upbringing children at home with work (professional) activities; to give an opportunity not only to the mother, but also to the father to raise and bring up the child at home, while in their absence—to give such a possibility to other working members of the family.

The guarantee of the state care and support for the families raising and bringing up children at home, which is entrenched in Paragraph 1 of Article 39 of the Constitution, as well as the obligation of the state of a more general character, stemming from Paragraph 2 of Article 38 thereof, to protect and care for the family, motherhood, fatherhood and childhood, may not be construed in isolation from the right and duty of the parents, entrenched in Paragraph 6 of Article 38 of the Constitution, to bring up their children to be honest people and faithful citizens and to support them until they come of age; as mentioned, it is first of all the parents who are responsible for raising and upbringing of their children and their support until they come of age, whereas the duty of the state is to render support, within its capabilities, to families raising and bringing up children at home.

While taking account of the fact that the state support to families that raise and bring up children at home may be rendered inter alia as social assistance in cases provided for by laws, which is guaranteed in Article 52 of the Constitution, it also needs to be noted that, as it has been held in acts of the Constitutional Court more than once, the principle of solidarity in the civil society does not deny personal responsibility for one’s own fate, therefore, the legal regulation of the social security should be such as to create preconditions for each member of the society to take care of one’s own welfare, but not to rely solely on the social security guaranteed by the state (Constitutional Court rulings of 12 March 1997, 25 November 2002, 3 December 2003, 5 March 2004, 26 September 2007, 2 September 2009, decision of 20 April 2010, ruling of 6 February 2012); the social support should not create preconditions for a person not to seek a higher income and not to search for possibilities to ensure to oneself and one’s family by one’s own effort the living conditions that are in line with human dignity; social support should not become a privilege (Constitutional Court rulings of 5 March 2004, 2 September 2009, decision of 20 April 2010, ruling of 6 February 2012); the recognition of mutual responsibility of a person and the society is important in ensuring social harmony, guaranteeing freedom of a person and possibility to protect oneself from difficulties which could not be overcome by one person alone (Constitutional Court rulings of 12 March 1997, 26 September 2007, decision of 20 April 2010, ruling of 6 February 2012). Thus, the Constitution does not prohibit the legislator from setting by law such bases or conditions of giving social assistance and amount of social assistance as to encourage each person’s attempts to take care of one’s own or one’s family welfare by one’s own efforts first of all and to contribute to the welfare of the entire society (Constitutional Court ruling of 5 March 2004).

As it was held in the Constitutional Court ruling of 5 March 2004, the Constitution does not expressis verbis establish any bases, conditions, terms and amounts of giving support to the families that raise and bring up children at home; these are to be established by the legislator in compliance with the norms and principles of the Constitution; capabilities of society and the state must be taken into account when regulating by laws the relations of assistance given to the families that raise and bring up children at home; the legislator has a broad discretion in this field, however, it is inadmissible to link the assistance rendered by the state to a family with such circumstances (conditions) which artificially aggravate the receipt of such assistance.

The legislator may choose various forms of care and support for the families that raise and bring up children at home, the conditions of the rendition of such care and support, etc., however, while implementing its discretion, the legislator is not allowed to deny, in general, the essence of the guarantee entrenched in Paragraph 1 of Article 39 of the Constitution and the obligation of the state stemming from Paragraph 2 of Article 38 thereof to protect and care for the constitutional values—the family, motherhood, fatherhood and childhood.

In the context of the constitutional justice case at issue it needs to be noted that, under Paragraph 1 of Article 39 of the Constitution, the legislator, while implementing its discretion to choose various forms of care and support for the families that raise and bring up children at home, is allowed, after it takes account of a special need of children of early age for protection and supervision, to establish such legal regulation, which would create conditions for at least one working parent (in their absence—for another working member of the family) to raise and bring up the child at home for some time without being engaged in the work (professional) activities (or by coordinating such activities with the raising and bringing up of the child) by receiving the respective support from the state during this time period. The law may also provide for leave of other types for working parents, inter alia a leave given to the father from the moment of childbirth.

The Constitution does not establish any grounds, conditions and length of the leave for raising and bringing up children, nor any amounts of financial support to be rendered during such a leave—it must be established by the legislator by paying feed to the norms and principles of the Constitution (inter alia the constitutional imperatives of a state under the rule of law, justice, reasonableness, proportionality, protection of acquired rights and legitimate expectations, equality of rights, balance among constitutional values, and social harmony).

The legislator enjoys the discretion to choose the sources from which the support for families raising and brining up children at home will be funded: such support inter alia may be funded from the state budget, also, such legal regulation may be established whereby the rendition of the said support would be grounded upon social insurance, or a different model of funding such support may be chosen.

In the context of the constitutional justice case at issue it needs to be noted that, having chosen such a form of the care and support (guaranteed in Paragraph 1 of Article 39 of the Constitution) as the leave for raising and brining up children at home, the legislator, while taking account of the purpose of such a leave, which is the creation of possibilities for the parents to raise and bring up children at home for some time without being engaged in the work (professional) activities, as well as of the purpose of the financial support to be rendered during such a leave, which is compensation, within the capabilities of the state, of all lost income or part thereof, may establish the legal regulation whereby the said support would be rendered while taking into consideration other income (received for work performed at the time of the said leave) of the persons making use of such a leave. Alongside, it needs to be noted that one is not allowed to establish any legal regulation whereby the income received for work performed not during the said leave would influence the amount of the financial support rendered at the time of the leave for raising and brining up children at home, since the aforesaid work does not deny the purpose of such a leave in any way.

  1. Paragraph 2 of Article 39 of the Constitution prescribes: “The law shall provide to working mothers a paid leave before and after childbirth as well as favourable working conditions and other concessions.”

Paragraph 2 of Article 39 of the Constitution 39 establishes inter alia the constitutional guarantee of a paid leave before and after childbirth to working mothers, by taking account of a special condition and need of healthcare of women for some time before and after childbirth and of a special link between mother and child for some time after childbirth. The purpose of this constitutional guarantee is to secure the protection of the physiological condition of a pregnant woman and a woman after childbirth, to secure the special link between mother and child during the first weeks of life of the child, by creating a possibility for a working woman to withdraw, for a reasonable time, from her work (professional) activities before and after childbirth .

It needs to be noted that, when one takes account of this constitutional purpose, a paid leave before and after childbirth to working mothers is a specific constitutional institute of protection of motherhood and childhood. The paid leave of a reasonable length of time before and after childbirth to working mothers guaranteed under Paragraph 2 of Article 39 of the Constitution implies that the legislator, while regulating the implementation of the right to this leave and while taking account of the constitutional purpose thereof, while heeding other norms and principles of the Constitution (inter alia the constitutional imperatives of a state under the rule of law, justice, reasonableness, and equality of rights), must establish inter alia the conditions for giving such a leave, a reasonable (minimum and maximum) length of this leave, as well as the legal regulation which would secure, at the time of the leave, the payment of the payments, whose amount would comply with the average remuneration received during a reasonable time prior to the leave.

The legislator enjoys the discretion to choose the sources from which the leave for working mothers before and after childbirth will be funded: this leave inter alia may be funded from the state budget, also, such legal regulation may be established whereby the funding of the said leave would be grounded upon social insurance, or a different model of funding such support may be chosen.

In the context of the constitutional justice case at issue it needs to be noted that, under the Constitution the legislator, while taking account of the constitutional purpose of the paid leave before and after childbirth, may establish the legal regulation whereby the leave would be paid by taking account of other income (received for work performed at the time of the said leave) of the women on such a leave. Alongside, it needs to be noted that one is not allowed to establish any legal regulation whereby the income received for work performed not during the said leave would influence the payment for the leave before and after childbirth, since the aforesaid work does not deny the purpose of such a leave in any way.

It needs to be emphasised that, while regulating the right of the paid leave before and after childbirth, which is guaranteed in Paragraph 2 of Article 39 of the Constitution, the legislator must take into account inter alia the peculiarities (which may be of importance to the possibilities of such women to make use of such a right) of the work (professional) activities of women engaged in work or business.

II

  1. One needs to note the international commitments of the Republic of Lithuania related to social human rights, inter alia the right to social security. It needs to be emphasised that even though each state itself establishes the concrete means whereby it implements the social rights of a human being, inter alia the right to social security, when using this competence, the state must comply with its self-obligations and instruments for coordination of the national social security systems which are entrenched in the international legal acts.

The Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948 (the Republic of Lithuania has made a solemn commitment to follow it by inter alia the Resolution of the Supreme Council of the Republic of Lithuania “On the Accession of the Republic of Lithuania to the Documents of the International Bill of Human Rights” of 12 March 1991) inter alia established that everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international cooperation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality (Article 22); motherhood and childhood are entitled to special care and assistance; all children, whether born in or out of wedlock, shall enjoy the same social protection (Paragraph 2 of Article 25).

The International Covenant on Economic, Social and Cultural Rights of 19 December 1966, developing the provisions of the Universal Declaration of Human Rights which was joined by the Republic of Lithuania by the aforementioned Resolution of the Supreme Council of the Republic of Lithuania "On the Accession of the Republic of Lithuania to the Documents of the International Bill of Human Rights" of 12 March 1991 and became valid for the Republic of Lithuania on 20 February 1992, inter alia established that the States Parties to the present Covenant recognise the right of everyone to social security, including social insurance (Article 9). In Article 10 of the same Covenant it is also inter alia recognised that the widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children; special protection should be accorded to mothers during a reasonable period before and after childbirth; during such period working mothers should be accorded paid leave or leave with adequate social security benefits.

The Convention on the Rights of the Child of 20 November 1989, which was adopted by the General Assembly of the United Nations while bearing in mind the provisions of the Universal Declaration of Human Rights and of Article 10 of the International Covenant on Economic, Social and Cultural Rights, which came into force for Lithuania on 1 March 1992, inter alia provides that the parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development; States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right (Paragraphs 2 and 3 of Article 27).

Part I of the European Social Charter (revised) (hereinafter also referred to as the Charter), which was adopted on 3 May 1996 and which became valid for Lithuania (with certain exceptions) on 1 August 2001, inter alia prescribes that employed women, in case of maternity, have the right to a special protection (Item 8); the family as a fundamental unit of society has the right to appropriate social, legal and economic protection to ensure its full development (Item 16). Article 8 “The right of employed women to protection of maternity” of the Charter provides that, with a view to ensuring the effective exercise of the right of employed women to the protection of maternity, the Parties undertake inter alia to provide either by paid leave, by adequate social security benefits or by benefits from public funds for employed women to take leave before and after childbirth up to a total of at least fourteen weeks. Article 16 “The right of the family to social, legal and economic protection” of the Charter provides that, with a view to ensuring the necessary conditions for the full development of the family, which is a fundamental unit of society, the Parties undertake to promote the economic, legal and social protection of family life by such means as social and family benefits, fiscal arrangements, provision of family housing, benefits for the newly married and other appropriate means.

  1. It needs to be noted that international treaties of the Republic of Lithuania also establish more concrete self-obligations of the state related to protection of motherhood. The 15 June 2000 International Labour Organisation Convention concerning the revision of the Maternity Protection Convention (Revised), 1952 (which was ratified by the Republic of Lithuanian on 25 March 2003 and which came into force for the Republic of Lithuania on 23 September 2004) inter alia provides:

– on production of a medical certificate or other appropriate certification, as determined by national law and practice, stating the presumed date of childbirth, a working woman shall be entitled to a period of maternity leave of not less than 14 weeks (Paragraph 1 of Article 4); with due regard to the protection of the health of the mother and that of the child, maternity leave shall include a period of six weeks’ compulsory leave after childbirth, unless otherwise agreed at the national level by the government and the representative organisations of employers and workers (Paragraph 4 of Article 4); the prenatal portion of maternity leave shall be extended by any period elapsing between the presumed date of childbirth and the actual date of childbirth, without reduction in any compulsory portion of postnatal leave (Paragraph 5 of Article 4);

– on production of a medical certificate, leave shall be provided before or after the maternity leave period in the case of illness, complications or risk of complications arising out of pregnancy or childbirth; the nature and the maximum duration of such leave may be specified in accordance with national law and practice (Article 5);

– cash benefits shall be provided, in accordance with national laws and regulations, or in any other manner consistent with national practice, to women who are absent from work because they are on maternity leave, or on leave in the case of illness, complications or risk of complications arising out of pregnancy or childbirth (Paragraph 1 of Article 6); cash benefits shall be at a level which ensures that the woman can maintain herself and her child in proper conditions of health and with a suitable standard of living (Paragraph 2 of Article 6); where, under national law or practice, cash benefits paid with respect to maternity leave are based on previous earnings, the amount of such benefits shall not be less than two-thirds of the woman’s previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits (Paragraph 3 of Article 6); each member of the International Labour Organisation shall ensure that the conditions to qualify for cash benefits can be satisfied by a large majority of working women (Paragraph 5 of Article 6); where a woman does not meet the conditions to qualify for cash benefits under national laws and regulations or in any other manner consistent with national practice, she shall be entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance (Paragraph 6 of Article 6); in order to protect the situation of women in the labour market, benefits in respect of maternity leave, or leave in the case of illness, complications or risk of complications arising out of pregnancy or childbirth shall be provided through compulsory social insurance or public funds, or in a manner determined by national law and practice (Paragraph 8 of Article 6).

  1. In this context it needs to be noted that the right to social insurance payments, inter alia maternity payments, also falls under protection of inter alia Article 1 “Protection of Property” of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms. In its 30 September 2010 Decision as to the Admissibility in the case Hasani v. Croatia (application No. 20844/09), the European Court of Human Rights held that after an administrative body adopts a decision whereby the right of a person to a maternity allowance is established according to respective laws, such a decision generates the right to the person to claim such allowance and such an allowance is property within the meaning of Article 1 of the First Protocol of the Convention for the Protection of Human Rights and Fundamental Freedoms.
  2. It needs to be noted that under Paragraph 1 (a) of Article 153 of the Treaty on the Functioning of the European Union, the European Union shall support and complement the activities of the Member States in improvement in particular of the working environment to protect workers’ health and safety.

4.1. Directive of the Council of the European Communities 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) (Official Journal L 348, 28 November 1992, Lithuanian special edition, Chapter 5, Volume 2, pp. 110–117) inter alia prescribes:

– Member States shall take the necessary measures to ensure that pregnant workers, workers who has recently given birth, and workers who are breastfeeding are entitled to a continuous period of maternity leave of a least 14 weeks allocated before and/or after confinement in accordance with national legislation and/or practice (Paragraph 1 of Article 8); such maternity leave must include compulsory maternity leave of at least two weeks allocated before and/or after confinement in accordance with national legislation and/or practice (Paragraph 2 of Article 8);

– the rights connected with the employment contract of pregnant workers, workers who have recently given birth, and workers who are breastfeeding as well as maintenance of a payment to, and/or entitlement to an adequate allowance for must be ensured (Item 2 of Article 11); such an allowance shall be deemed adequate if it guarantees income at least equivalent to that which the worker concerned would receive in the event of a break in her activities on grounds connected with her state of health, subject to any ceiling laid down under national legislation (Item 3 of Article 11); Member States may make entitlement to the said pay or the allowance conditional upon the worker concerned fulfilling the conditions of eligibility for such benefits laid down under national legislation; these conditions may under no circumstances provide for periods of previous employment in excess of 12 months immediately prior to the presumed date of confinement (Item 4 of Article 11).

4.2. In the course of construction of the content of maternity, the Court of Justice of the European Union (hereinafter referred to as the ECJ) has noted in its jurisprudence that the purposes of paid annual leave and maternity leave are different (the 18 March 2004 ECJ judgment in María Paz Merino Gómez v. Continental Industrias del Caucho SA, C-342/01, ECR I-2605, paragraph 32); by means of maternity leave it is intended to protect a woman’s biological condition and the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment (the 29 November 2001 ECJ judgment in Joseph Griesmar v. Ministre de l’Economie, des Finances et de l’Industrie et Ministre de la Fonction publique, de la Réforme de l’Etat et de la Décentralisation, C-366/99, ECR I-9383, paragraph 43; the 20 September 2007 ECJ judgment in Sari Kiiski v. Tampereen kaupunki, C‑116/06, ECR I-7643, paragraph 46); the right to maternity leave granted to pregnant workers must be regarded as a particularly important mechanism of protection under employment law (the 20 September 2007 ECJ judgment in Sari Kiiski v. Tampereen kaupunki, C‑116/06, ECR I-7643, paragraph 49). The ECJ has also pointed out that, according to Directive 92/85, the prohibition on working relates only to a period of at least 2 weeks out of a maternity leave of at least 14 weeks (the 18 November 2004 ECJ judgment in Land Brandenburg v. Ursula Sass, C-284/02, ECR I-11143, paragraph 45).

III

On the compliance of Items 1 and 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law on Sickness and Maternity Social Insurance with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

  1. It has been mentioned that the Vilnius Regional Administrative Court a petitioner, requests (petitions Nos. 1B-21/2010, 1B-27/2010) to investigate inter alia the compliance of Items 1 and 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law on Sickness and Maternity Social Insurance insofar as they establish that the maternity, paternity benefits shall not be awarded in the case when the income of the woman or the father of a child on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation, with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

The doubts of the petitioner regarding the compliance of Items 1 and 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law with the Constitution are substantiated by the fact that the maternity or paternity benefits are not awarded even in cases when the income of the woman or the father of the child, on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation, also by the fact that such legal regulation violates the equality of rights of the persons who received some income, if compared with the persons who did not receive any income.

  1. Even though the Vilnius Regional Administrative Court, a petitioner, requests (petition No. 1B-27/2010) investigation into whether inter alia Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it establishes that the maternity benefit shall not be awarded in the case when the income of the woman on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation, is not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law, it is clear from the petition of the petitioner and from the material of the administrative case wherein it was decided to apply to the Constitutional Court that the petitioner requests investigation into whether Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law on Sickness and Maternity Social Insurance, insofar as it was established therein that the maternity benefit shall not be awarded in cases when, during the pregnancy and childbirth leave, the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

Even though the Vilnius Regional Administrative Court, a petitioner, requests (petition No. 1B-21/2010) investigation into whether inter alia Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it establishes that the paternity benefit shall not be awarded in the case when the income of the father of a child on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation, is not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law, it is clear from the petition of the petitioner and from the material of the administrative case wherein it was decided to apply to the Constitutional Court that the petitioner requests investigation into whether Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it was established therein that the paternity benefit shall not be awarded in cases when, during the paternity leave, the father has income (on which the sickness and maternity social insurance contributions are calculated) from work activities, was not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

While taking account of the content and arguments of the petitions of the petitioner, as well as of the material of the administrative cases wherein it was decided to apply to the Constitutional Court, in the constitutional justice case at issue the Constitutional Court will investigate whether:

– Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it established that the maternity benefit shall not be awarded in cases when, during the pregnancy and childbirth leave, the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law;

– Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it established that the paternity benefit shall not be awarded in cases when, during the paternity leave, the father has income (on which the sickness and maternity social insurance contributions are calculated) from work activities, was not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.

  1. Article 5 “Sickness, Vocational Rehabilitation, Maternity, Paternity and Maternity (Paternity) Social Insurance Benefits”, whose Items 1 and 2 of Paragraph 5 (wording of 18 December 2008) are disputed by the petitioner, prescribed:

“1. Sickness, vocational rehabilitation, maternity, paternity and maternity (paternity) social insurance benefits shall be awarded and paid in accordance with this Law.

  1. Sickness benefits shall be awarded to the persons entitled to this type of benefit in the following cases:

1) to the insured persons who became temporarily incapacitated for work due to illness or trauma and therefore lost income from work, except for the cases of awarding and payment of sickness benefits provided for by the Occupational Accidents and Occupational Diseases Social Insurance Law;

2) for nursing sick family members. This benefit shall be awarded if on the doctor’s instruction it is necessary to nurse a sick family member of the insured:

3) to the insured removed from the job due to the outbreak of infectious diseases or epidemics;

4) to the insured undergoing treatment at the health care institutions providing orthopaedic and/or prosthetic services. This benefit shall be awarded to the insured persons for the entire duration of treatment at the said institution as well as for the period of travel to and from the health care institution;

5) for childcare if the regime for containing the spread of infection has been introduced in childcare institutions;

6) for childcare if the person who has been awarded a maternity leave or a childcare leave until the child is 3 years old (hereafter referred to as a childcare leave) is unable to take care of the child due to her/his own sickness or trauma;

7) for the insured persons who have become temporarily incapable for work because of taking of the tissues, cells or organs for transplantation with the purpose of donation.

  1. Maternity, paternity and maternity (paternity) benefits shall be awarded to the insured persons entitled to this benefit in the following cases (with the exception of the cases provided for in Paragraph 5 of this Article):

1) maternity benefit shall be awarded to women for the duration of the maternity leave;

2) paternity benefit shall be awarded to the insured person during his paternity leave to take care of the child until he reaches the age of 1 month;

3) maternity (paternity) benefit shall be awarded to the insured person for the duration of the childcare leave until the child reaches the age of 2 years.

  1. Vocational rehabilitation benefits shall be awarded and paid to the insured persons entitled to the said benefits, for whom the need for vocational rehabilitation services has been determined by the Disability and Capacity for Work Establishment Office under the Ministry of Social Security and Labour (hereinafter referred to as the DCWEO) provided that these persons are taking part in the vocational rehabilitation programme.
  2. The persons who are compulsorily insured with the sickness and maternity social insurance when insuring for maternity, paternity and maternity (paternity) social insurance benefits, as well as the persons referred to in Paragraph 3 of Article 4 of this Law shall be awarded benefits in the following cases:

1) maternity benefit—according to a submitted certificate about a maternity leave, issued pursuant to the procedure laid down in Paragraph 5 of Article 16 of this Law, provided that a woman does not have the income on which sickness and maternity social insurance contributions are being calculated;

2) paternity benefit—one month from the birth of a child, provided that the child’s father does not have the income on which sickness and maternity social insurance contributions are being calculated;

3) maternity (paternity) benefit—until a child reaches the age of two years. If a person has the income on which sickness and maternity social insurance income is being calculated, the provisions of Paragraph 4 of Article 21 of this Law shall apply accordingly when paying the said benefit.

  1. The persons specified in Paragraphs 3 and 5 of Article 4 of the Law on the State Social Insurance, upon having submitted a certificate about a maternity leave (Item 1 of Paragraph 5 of this Article), shall be equated to the persons who have been awarded a maternity leave, and upon having submitted a child’s birth certificate (Items 2 and 3 of Paragraph 5 of this Article)—to the persons who have been awarded a parental leave or a childcare leave. For the persons referred to in this Paragraph the beginning of a parental leave shall be the day of birth of a child, and the day of a childcare leave—the day following the paternity leave or maternity leave.”

It needs to be noted that, under Paragraph 3 of Article 4 (wording of 18 December 2008) of the Law, which is pointed out in Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, the persons who receive income under an author’s agreement shall be insured with the sickness and maternity social insurance for sickness, vocational rehabilitation, maternity, paternity and maternity (paternity) social insurance benefits.

Consequently, the persons who receive income under an author’s agreement are also insured for maternity, paternity and maternity (paternity) social insurance benefits.

  1. When the legal regulation entrenched in Item 1 (which is disputed by the petitioner) of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law is construed in connection with the legal regulation established in Item 1 of Paragraph 3 (wording of 18 December 2008) of Article 5 of the same law, it needs to be noted that the ground for awarding a maternity benefit for the woman insured by sickness and maternity social insurance was related to the fact that one has income (on which the sickness and maternity social insurance contributions are calculated) from work activities during the pregnancy and childbirth leave.

Thus, it was established in Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law that the ground for awarding a maternity benefit was related to the fact whether the woman received income from work activities, but not to the moment of performance of the work for which income is received, i.e. a maternity benefit was not awarded without taking account of the fact whether the work, for which the woman received income (on which the sickness and maternity social insurance contributions are calculated), was performed at the time of the pregnancy and childbirth leave.

Consequently, under the legal regulation established in Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, the ground for awarding a maternity benefit is related to both the income (on which the sickness and maternity social insurance contributions are calculated) received from work activities conducted at the time of the woman’s pregnancy and childbirth leave and the income (on which the sickness and maternity social insurance contributions are calculated) received from work activities conducted not at the time of the woman’s pregnancy and childbirth leave.

  1. When the legal regulation entrenched in Item 2 (which is disputed by the petitioner) of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, is construed in connection with the legal regulation established in Item 2 of Paragraph 3 (wording of 18 December 2008) of Article 5 of the same law, it needs to be noted that the ground for awarding a paternity benefit for the child’s father insured by sickness and maternity social insurance was related to the fact that one has income (on which the sickness and maternity social insurance contributions are calculated) from work activities during the paternity leave.

Thus it was established in Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law that the ground for awarding a paternity benefit was related to the fact whether the child’s father receives income from work activities, but not to the moment of performance of the work for which income is received, i.e. a paternity benefit was not awarded without taking account of the fact whether the work, for which the child’s father received income (on which the sickness and maternity social insurance contributions are calculated), was performed at the time of the paternity leave.

Consequently, under the legal regulation established in Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, the ground for awarding a paternity benefit is related to both the income (on which the sickness and maternity social insurance contributions are calculated) received from work activities conducted at the time of the child’s father’s paternity leave and the income (on which the sickness and maternity social insurance contributions are calculated) received from work activities conducted not at the time of the child’s father’s paternity leave.

  1. As mentioned, the Constitutional Court will investigate whether inter alia Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it established that the maternity benefit shall not be awarded in cases when, during the pregnancy and childbirth leave, the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.
  2. In this ruling of the Constitutional Court it has been mentioned that, under the legal regulation established in Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, the ground for awarding a maternity benefit was related to the fact whether the woman receives income from work activities, but not to the moment of performance of the work for which income is received, i.e. a maternity benefit was not awarded without taking account of the fact whether the work, for which the woman received income (on which the sickness and maternity social insurance contributions are calculated), was performed at the time of the pregnancy and childbirth leave.

Consequently, the ground for awarding a maternity benefit was also related to income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not at the time of the woman’s pregnancy and childbirth leave, i.e. a maternity benefit was not awarded if the woman, at the time of the pregnancy and childbirth leave, had the income from work activities performed not during such a leave.

  1. While construing the content of the constitutional guarantee of a paid leave before and after childbirth, which is inter alia established in Paragraph 2 of Article 39 of the Constitution, it has been mentioned in this ruling of the Constitutional Court that, under the Constitution, the legislator, while taking account of the constitutional purpose of the paid leave before and after childbirth, may establish the legal regulation whereby the leave would be compensated by taking account of other income (received for work performed at the time of the said leave) of the women on such a leave; the legislator is not allowed to establish any legal regulation whereby the income received for work performed not during the leave before and after childbirth would influence the payment for the said leave, since the aforesaid work does not deny the purpose of such a leave in any way.
  2. Consequently, after it had been established in Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law that the maternity benefit shall not be awarded if during the pregnancy and childbirth leave the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, even though the aforesaid work does not deny the purpose of such a leave in any way, the guarantee of a paid leave before and after childbirth, which is entrenched in Paragraph 2 of Article 39 of the Constitution, was disregarded.
  3. Taking account of the arguments set forth, one is to draw a conclusion that Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it established that the maternity benefit shall not be awarded if during the pregnancy and childbirth leave the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was in conflict with Paragraph 2 of Article 39 of the Constitution.
  4. Having held this, in the constitutional justice case at issue the Constitutional Court will not further investigate whether Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law was not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.
  5. As mentioned, the Constitutional Court will investigate inter alia whether Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it established that the paternity benefit shall not be awarded in cases when, during the paternity leave, the child’s father has income (on which the sickness and maternity social insurance contributions are calculated) from work activities, was not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.
  6. In this ruling of the Constitutional Court it has been mentioned that, under the legal regulation established in Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, the ground for awarding a paternity benefit was related to the fact whether the child’s father receives income from work activities, but not to the moment of performance of the work for which income is received, i.e. a paternity benefit was not awarded without taking account of the fact whether the work, for which the child’s father received income (on which the sickness and maternity social insurance contributions are calculated), was performed at the time of the paternity leave.

Consequently, the ground for awarding a paternity benefit was also related to income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not at the time of the paternity leave of the child’s father, i.e. a paternity benefit was not awarded if the child’s father, at the time of the paternity leave, had the income from work activities performed not during such a leave.

  1. It has been mentioned in this ruling that, having chosen such a form of the care and support (guaranteed in Paragraph 1 of Article 39 of the Constitution) as the leave for raising and brining up children at home, the legislator, while taking account of the purpose of such a leave, which is the creation of possibilities for the parents to raise and bring up children at home for some time without being engaged in the work (professional) activities, as well as of the purpose of the financial support to be rendered during such a leave, which is compensation, within the capabilities of the state, of all lost income or part thereof, may establish the legal regulation whereby the said support would be rendered while taking into consideration other income (received for work performed at the time of the said leave) of the persons making use of such a leave; the legislator is not allowed to establish any legal regulation whereby the income received for work performed not during the leave for raising and brining up children at home would influence the amount of the financial support rendered at the time of such a leave, since the aforesaid work does not deny the purpose of such a leave in any way.
  2. Consequently, after it had been established in Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law that the paternity benefit shall not be awarded if during the paternity leave the child’s father has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, even though the aforesaid work does not deny the purpose of such a leave in any way, the guarantee of a state care and support for families raising and bringing up children at home, which is entrenched in Paragraph 1 of Article 39 of the Constitution, was disregarded.
  3. Taking account of the arguments set forth, one is to draw a conclusion that Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it established that the paternity benefit shall not be awarded if during the paternity leave the child’s father has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was in conflict with Paragraph 1 of Article 39 of the Constitution.
  4. Having held this, in the constitutional justice case at issue the Constitutional Court will not further investigate whether Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law was not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.
  5. On 22 December 2010, the Seimas adopted the Republic of Lithuania Law on Amending Articles 5, 8, 16, 18, 181, 183, 19 and 21 of the Law on Sickness and Maternity Social Insurance, which, with a certain exception, came into force on 1 January 2011. Article 1 of this law amended Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law and set it forth as follows:

“The persons who are compulsorily insured with the sickness and maternity social insurance when insuring for maternity, paternity and maternity (paternity) social insurance benefits, as well as the persons referred to in Paragraph 3 of Article 4 of this Law shall be awarded benefits in the following cases:

1) a maternity benefit—according to a submitted certificate about a maternity leave issued pursuant to the procedure laid down in Paragraph 5 of Article 16 of this Law;

2) a paternity benefit—one month from the birth of a child;

3) maternity (paternity) benefit—until a child reaches the age of two years.”

Upon comparing, in the aspect important in the constitutional justice case at issue, the legal regulation established in Paragraph 5 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 5 of the Law with the one established in Paragraph 5 of Article 5 (wording of 18 December 2008) of the Law, it needs to be noted that, in Items 1 and 2 of Paragraph 5 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 5 of the Law, the ground for awarding maternity, paternity benefits is no longer related with income from work activities, on which the sickness and maternity social insurance contributions are calculated.

  1. In the context of the constitutional justice case at issue it needs to be noted that Article 4 of the Law on Amending Articles 5, 8, 16, 18, 181, 183, 19 and 21 of the Law on Sickness and Maternity Social Insurance, which was adopted by the Seimas on 22 December 2010, amended Paragraph 2 of Article 18 of the Law (wording of 21 December 2000) and set it forth as follows:

“If during the period of payment of the maternity benefit the insured person has the income on which sickness and maternity social insurance contributions are calculated and the amount thereof is less than the maternity benefit, the said person shall be paid the difference between this benefit and the insured income received by the person in the appropriate month. When the maternity benefit is being paid, the insured income shall not include the income received under an author’s agreement for the work carried out before the first day of the pregnancy and childbirth leave. The maternity benefit or part thereof shall be calculated and paid in accordance with the procedure established by the Regulations on Social Insurance Benefits of Sickness and Maternity approved by the Government.”

It needs to be noted that the legal regulation established in Paragraph 2 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 18 of the Law is to be construed as meaning that, the insured woman who was or is on a pregnancy and childbirth leave is paid the difference between the maternity benefit and the insured income received by the her in the appropriate month only when the amount of the insured income is less than this benefit, whereas in cases when the insured woman who was and is on a pregnancy and childbirth leave has the insured income the amount whereof is more than the maternity benefit or is equal to it, she is not paid this benefit. When the maternity benefit is paid, only the income received under an author’s agreement for the work carried out before the first day of the pregnancy and childbirth leave is not included into the insured income, thus, the paid maternity benefit is not reduced by the sum of the aforesaid income, however, other insured income received during the pregnancy and childbirth leave from work activities performed not during this leave, is included into the insured income, therefore, the paid maternity benefit is reduced by the sum of this income.

Upon comparing the legal regulation established in Paragraph 2 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 18 of the Law with the one established in Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 18 of the Law, it needs to be noted that even though the legal regulation established in Paragraph 2 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 18 of the Law was amended, in the aspect investigated in the constitutional justice case at issue it has not been changed, i.e. it was not established that, when the maternity benefit is being paid, all income received during the pregnancy and childbirth leave, from work activities performed not during the said leave, is not included into the insured income.

  1. In this ruling of the Constitutional Court it has been held that Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it established that the maternity benefit shall not be awarded if during the pregnancy and childbirth leave the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was in conflict with Paragraph 2 of Article 39 of the Constitution.

Having held this, on the grounds of the same arguments, one is also to hold that Paragraph 2 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 18 of the Law, insofar as it is not established therein that, when the maternity benefit is being paid, all income received during the pregnancy and childbirth leave, from work activities performed not during the said leave, is not included into the insured income, is in conflict with Paragraph 2 of Article 39 of the Constitution.

  1. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 18 of the Law, insofar as it is not established therein that, when the maternity benefit is being paid, all income received during the pregnancy and childbirth leave, from work activities performed not during the said leave, is not included into the insured income, is in conflict with Paragraph 2 of Article 39 of the Constitution.
  2. In the context of the constitutional justice case at issue it needs to be noted that Article 6 of the Law on Amending Articles 5, 8, 16, 18, 181, 183, 19 and 21 of the Law on Sickness and Maternity Social Insurance, which was adopted by the Seimas on 22 December 2010, amended Article 183 (wording of 4 December 2007) of the Law. Paragraph 2 of the said article was set forth as follows:

“If during period of payment of the paternity benefit the insured person has the income on which sickness and maternity social insurance contributions are calculated and the amount thereof is less than the paternity benefit, the said person shall be paid the difference between this benefit and the insured income received by the person in the appropriate month. When paying the paternity benefit the insured income shall not include the income received under an author’s agreement for the work carried out before the first day of the paternity leave. The paternity benefit or part thereof shall be calculated and paid in accordance with the procedure established by the Regulations on Social Insurance Benefits of Sickness and Maternity approved by the Government.”

It needs to be noted that the legal regulation established in Paragraph 2 of Article 183 (wording of 22 December 2010, which came into force on 1 January 2011) of the Law is to be construed as meaning that the insured person who was or is on a paternity leave is paid the difference between the paternity benefit and the insured income received by the him in the appropriate month only when the amount of the insured income is less than this benefit, whereas in cases when the insured person who was and is on a paternity leave has the insured income the amount whereof is more than the paternity benefit or is equal to it, he is not paid this benefit. When the paternity benefit is paid, only the income received under an author’s agreement for the work carried out before the first day of the paternity leave is not included into the insured income, thus, the paid paternity benefit is not reduced by the sum of the aforesaid income, however, other insured income received during the paternity leave from work activities performed not during this leave, is included into the insured income, therefore, the paid paternity benefit is reduced by the sum of this income.

Upon comparing the legal regulation established in Paragraph 2 of Article 183 (wording of 22 December 2010, which came into force on 1 January 2011) of the Law with the one established in Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, it needs to be noted that even though the legal regulation established in Paragraph 2 of Article 183 (wording of 22 December 2010, which came into force on 1 January 2011) of the Law was amended, in the aspect investigated in the constitutional justice case at issue it has not been changed, i.e. it was not established that, when the paternity benefit is being paid, all income received during the paternity leave, from work activities performed not during the said leave, is not included into the insured income.

  1. In this ruling of the Constitutional Court it has been held that Item 2 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it established that the paternity benefit shall not be awarded if during the paternity leave the child’s father has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was in conflict with Paragraph 1 of Article 39 of the Constitution.

Having held this, on the grounds of the same arguments, one is also to hold that Paragraph 2 of Article 183 (wording of 22 December 2010, which came into force on 1 January 2011) of the Law, insofar as it is not established therein that, when the paternity benefit is being paid, all income received during the paternity leave, from work activities performed not during the said leave, is not included into the insured income, is in conflict with Paragraph 1 of Article 39 of the Constitution.

  1. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 2 of Article 183 (wording of 22 December 2010, which came into force on 1 January 2011) of the Law, insofar as it is not established therein that, when the paternity benefit is being paid, all income received during the paternity leave, from work activities performed not during the said leave, is not included into the insured income, is in conflict with Paragraph 1 of Article 39 of the Constitution.

IV

On the compliance of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law on Sickness and Maternity Social Insurance with Article 29 of the Constitution, with the provision of Paragraph 1 of Article 48 thereof that each human being shall have the right to receive fair pay for work and social security in the event of unemployment and Article 52 thereof, and on the compliance of Paragraph 4 (wording of 17 June 2008) of Article 21 of this Law with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. It has been mentioned that the Vilnius Regional Administrative Court, a petitioner, requests to investigate inter alia the compliance of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law on Sickness and Maternity Social Insurance with Article 29 of the Constitution, with the provision of Paragraph 1 of Article 48 thereof that each human being shall have the right to receive fair pay for work and social security in the event of unemployment and Article 52 thereof (petition No. 1B-16/2008), as well as the compliance of Paragraph 4 (wording of 17 June 2008) of Article 21 of this Law, insofar as it does not establish that one shall not deduct the actually non-received income (on which the social insurance contributions have been paid) from the maternity (paternity) benefit received by the insured person who has taken a child-care leave, with Article 52 of the Constitution and the constitutional principle of a state under the rule of law (petitions Nos. 1B-119/2010 and 1B-44/2011).

The petitioner substantiates its doubts regarding the compliance of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law with Article 29 of the Constitution by the fact that, in its opinion, a citizen of the Republic of Lithuania, who does not have the insured income, but who works in another state, international organisation, institution of the European Union, etc., and who receives a certain income from which no contributions are paid to the State Social Insurance Fund, has the unlimited right to receive a maternity (paternity) benefit irrespective of whatever his received income would be, while a citizen of the Republic of Lithuania, who has the insured income in the Republic of Lithuania and who pays contributions to the State Social Insurance Fund, does not have this right (petition No. 1B-16/2008).

The petitioner substantiates its doubts regarding the compliance of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law with the said provision of Paragraph 1 of Article 48 of the Constitution and Paragraph 52 thereof by the fact that, in its opinion, by the disputed legal regulation one limits the right to receive the maternity (paternity) benefit taking account of the fact whether, during the period of a childcare leave, a person has the insured income (petition No. 1B-16/2008).

The petitioner substantiates its doubts regarding the compliance of Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law with Article 52 of the Constitution and the constitutional principle of a state under the rule of law by the fact that, in its opinion, the non-received income is considered as the insured income of the insured person and it is deducted from the maternity (paternity) benefit awarded to him (petitions Nos. 1B-119/2010 and 1B-44/2011).

  1. In this constitutional justice case the Constitutional Court will investigate the compliance of the legal regulation established in Paragraph 4 (wordings of 4 December 2007 and 17 June 2008) of Article 21 of the Law with the Constitution to the extent specified in the said petitions of the Vilnius Regional Administrative Court, a petitioner.
  2. Article 21 titled “The Amount of Maternity (Paternity) Benefit” (wording of 4 December 2007) of the Law, Article 4 whereof is disputed by the petitioner, prescribed the following:

“1. The amount of the maternity (paternity) benefit as from the end of the pregnancy and childbirth leave until the child reaches the age of one year shall make 100 per cent of the benefit recipient’s compensatory salary, whereas until the child reaches the age of two years old—85 per cent thereof.

2. The maternity (paternity) benefit per month shall not be less than one third of the current year’s insured income effective in the month when the childcare leave started.3. If two or more children are born to the insured person and he is on the children care leave, the maternity (paternity) benefit (Paragraphs 1 and 2 of this Article) are multiplied with regard to the number of children who were born at the same time (upon birth of twins—twice, and upon birth of triplets—three times, etc.).4. If the insured person who has been or is on childcare leave holds the insured income the amount whereof is less than the maternity (paternity) benefit, he shall be paid the difference between this benefit and the insured income held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity approved by the Government.5. The maternity (paternity) benefit shall be calculated and paid under the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity approved by the Government.6. If the insured person who is on the childcare leave finds an employment in another workplace and he is awarded the childcare leave in this work place, the maternity (paternity) benefit shall not be awarded for this period anew."

Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law which is disputed by the petitioner established the limitation of payment of the maternity (paternity) benefit related to the possession of the insured income: if the insured person who has been or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit, he is paid the difference between this benefit and the insured income held by him in the appropriate month.

The legal regulation established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law is to be construed as meaning that the insured person who has been or is on childcare leave is paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month only in such a case, when the amount of such income is less than this benefit, whereas in such cases, when the insured person who has been or is on childcare leave has the insured income the amount whereof is more than the maternity (paternity) benefit or equals to it, he is not paid this benefit.

  1. Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law prescribed the following:

“If the insured person who has been or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between this benefit and the insured income held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity approved by the Government”.

When the disputed legal regulation established in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law is compared to the one established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law, it is obvious that it changed only in the aspect that under the legal regulation established in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, in such cases when the insured person is paid more than one maternity (paternity) benefit and, during the period of the childcare leave, he has the insured income the amount whereof is less than the sum total of these benefits, he is paid the difference between the sum total of these benefits and the said income.

Thus, the legal regulation established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law was amended, however, it did not change in the aspect that the insured person who has been or is on childcare leave is paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month only in such a case, when the amount of such income is less than this benefit, while in such cases, when the insured person who has been or is on childcare leave has the insured income the amount whereof is more than the maternity (paternity) benefit or equals to it, he is not paid this benefit.

  1. While construing the disputed legal regulation in the context of the constitutional justice case at issue, it is important to disclose the content of the formula “the insured income held” which is used in Paragraph 4 (wordings of 4 December 2007 and 17 June 2008) of Article 21 of the Law.

5.1. Paragraph 2 (wording of 20 December 2007) of Article 3 “Main Definitions Used in this Law” of the Law prescribed the following:

“‘The insured income of the insured person’ means all income of a person on which compulsory state social insurance contributions for sickness and maternity social insurance were paid or had to be paid as well as sickness benefits (including the first 2 days of sickness for which the employer pays), professional rehabilitation, maternity, paternity, maternity (paternity) benefits, sickness due to occupational accidents or occupational disease benefits payable in accordance with the Law on Social Insurance of Occupational Accidents and Occupational Diseases, and also unemployment social insurance benefits payable in accordance with the Law on Unemployment Social Insurance.”

Thus, under Paragraph 2 (wording of 20 December 2007) of Article 3 of the Law, the insured income of the insured person is inter alia all the income of a person from which one paid or had to pay state social insurance contributions for the sickness and maternity social insurance.

5.2. Article 2 titled “Social Insurance of Sickness and Maternity” (wording of 8 June 2006) of the Law prescribed the following:

“The sickness and maternity social insurance shall compensate for the insured persons in the cases prescribed by law for a part of the lost income from work under this insurance scheme due to their own sickness or sickness of members of their family members, and also due to maternity, paternity, maternity (paternity), or due to participation in the professional rehabilitation programme.”

Thus, the purpose of the sickness and maternity social insurance is inter alia to compensate for the persons insured under this insurance scheme for a part of the lost income from work due to maternity (paternity).

5.3. In this context it needs to be noted that the formula “the insured income held” used in Paragraph 4 (wordings of 4 December 2007 and 17 June 2008) of Article 21 of the Law is to be construed as meaning the insured income which was actually received by the insured person for the work activity. A different construction of this formula, namely that it means also the income from the work activity which was actually not received (thus, for instance, the income which was calculated for the purposes of the obligatory social insurance and which was actually not received), would deny the purpose of the sickness and maternity social insurance to compensate for the persons insured under this insurance scheme the part of the income lost due to maternity (paternity), which is entrenched in Article 2 (wording of 8 June 2006) of the Law. Therefore, under the legal regulation established in Paragraph 4 (wordings of 4 December 2007 and 17 June 2008) of Article 21 of the Law, when the insured person, during the period of the childcare leave, is paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, when the amount of that income is less than this benefit, or when he is not paid the maternity (paternity) benefit when the amount of that income is more than this benefit or equals to it, one takes account not of all the insured income but only of the income held, i.e. the insured income actually received.

It needs to be noted that under the legal regulation established in Paragraph 4 (wordings of 4 May 2007 and 17 June 2008) of Article 21 of the Law, the ground for paying to the insured person the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month when the amount of such an income is less than this benefit and the ground for not paying him the maternity (paternity) benefit when the amount of such an income is more than this benefit or equals to it were related to receiving of income from the work activity by the insured person, but not to the moment of performance of the work for which the income was received, i.e., the maternity (paternity) benefit was reduced accordingly or not paid regardless of whether the insured person had done the work for which he received the insured income during the period of the childcare leave.

Thus, under the legal regulation established in Paragraph 4 (wordings of 4 May 2007 and 17 June 2008) of Article 21 of the Law, the ground for paying to the insured person the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month when the amount of such an income is less than this benefit and the ground for not paying him the maternity (paternity) benefit when the amount of such an income is more than this benefit or equals to it were related both to the insured income of the insured person which had been received from the work activity carried out during the childcare leave and to his insured income which had been received during the period of the childcare leave from the work activity carried out not during this leave.

5.4. In the constitutional justice case at issue, the disputed legal regulation entrenched in Paragraph 4 (wordings of 4 December 2007 and 17 June 2008) of Article 21 of the Law is to be construed together with the provisions of the Law on State Social Insurance.

5.4.1. Paragraph 4 (wording of 20 December 2007) of Article 2 “Main Definitions Used in this Law” of the Law on State Social Insurance” prescribed the following:

“‘The insured income’ means all income of a person on which, under the procedure established in this Law, state social insurance contributions are reckoned and must be paid, as well as the reckoned benefits of sickness, maternity, paternity, maternity (paternity), professional rehabilitation, sickness due to occupational accidents or occupational disease benefits, and also unemployment social insurance benefits.”

When one compares the legal regulation established in Paragraph 2 (wording of 20 December 2007) of Article 3 of the Law with the one established in Paragraph 4 (wording of 20 December 2007) of Article 2 of the Law on State Social Insurance, it is obvious that the definitions of the insured income introduced in these articles differ inter alia in the aspect that in Paragraph 2 (wording of 20 December 2007) of Article 3 of the Law one specifies the type of social insurance—the sickness and maternity social insurance—for which the contributions from the income of a person are paid (or must be paid).

5.4.2. Paragraph 1 (wording of 20 December 2007) of Article 7 “Income on Which Social Insurance Contributions are Calculated” of the Law on State Social Insurance prescribed the following:

“1. The social insurance contributions of the insured persons specified in Paragraph 1 and Items 1 and 2 of Paragraph 2 of Article 4 of this Law shall be calculated on the sum of remuneration for work calculated for each insured person which is not less than the minimum monthly salary, the payments of compensatory or incentive nature linked to the work relations, irrespective of sources of payment, and including the following:1) the main remuneration for work calculated for the insured person and all additional earnings (concrete hourly rate-based payments; monthly salaries; tariff-based remunerations, increased in comparison to normal conditions; remuneration for the time spent on preparation to a journey and settlement in a new place; other forms of remuneration for work; other payments linked to work relations), established in the Labour Code and other legal acts which are reckoned for the insured person for the completed work by the insurance payer in any manner;2) the remuneration for work calculated for the insured person composed of the positional salary, additional pays and extra pays established in the Law on State Service and legal acts which regulate the payment of these payments;3) the remuneration for work calculated for the insured person which is established in the Law on the Pay for Work of State Politicians, Judges and State Officials;4) additional pays and severance pays reckoned for the persons specified in Paragraphs 1 and 2 of Article 4 of this law;5) the compensations calculated for the annual and targeted leaves (save the pregnancy and childbirth leave, paternity leave and the childcare leave until the child turns three years old), the calculated monetary compensations for the unused annual leave and for the outage time;6) bonuses, benefits and other payments (save the payments specified in Article 8 of this Law).”It needs to be noted that in Paragraph 1 (wording of 20 December 2007) of Article 4 of the Law on State Social Insurance (to which a reference is made in Paragraph 1 (wording of 20 December 2007) of Article 4 of this Law), one named the persons who are obligatorily insured inter alia by the social insurance of sickness and maternity when it is insured for the sickness and maternity, paternity and maternity (paternity) benefits, while in Paragraph 2 (wording of 20 December 2007) of Article 4 of this Law (to which a reference is also made in Paragraph 1 (wording of 20 December 2007) of Article 4 of this Law), one named the persons who are obligatorily insured by the social insurance of other kinds (not by the sickness and maternity social insurance).Therefore, Paragraph 1 (wording of 20 December 2007) of Article 7 of the Law on State Social Insurance established that the social insurance contributions of the insured persons, inter alia by the sickness and maternity social insurance, shall be calculated on the sum of remuneration for work calculated for each insured person which is not less than the minimum monthly salary, the payments of compensatory or incentive nature linked to the work relations, irrespective of sources of payment; in the said paragraph one also enumerated the income received from work (and the income related to the work relations) on which social insurance contributions are calculated.

5.4.3. Item 17 (wording of 20 December 2007) of Paragraph 1 of Article 8 “Income and Cases When Social Insurance Contributions are not Calculated” of the Law on State Social Insurance prescribed the following: “The social insurance contributions are not calculated on <…> 17) compensations or other payments received from an international or European Union institution or an institution of a foreign state, as well as on the remuneration for work received from the said institutions if the social insurance contributions are calculated on it according to the legal acts pursuant to which the institutions pay the remuneration for work.”

Thus, Paragraph 1 of Article 8 of the Law on State Social Insurance, in which one specified the income and cases when the social insurance contributions are not calculated, i.e. the income is established which is not attributed to the insured income, prescribed that the social insurance contributions are not calculated on inter alia the income received from the work activity such as remuneration for work received from an institution of the European Union or an institution of foreign states provided that the social insurance contributions are calculated on it according to the legal acts pursuant to which the institutions pay the remuneration for work.

  1. While summing up the legal regulation set forth and while construing, in its context, the disputed legal regulation which is established in Paragraph 4 (wordings of 4 December 2007 and 17 June 2008) of Article 21 of the Law in the aspect significant in the constitutional justice case at issue, one is to note that:

– when the insured person, during the period of the childcare leave, is paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, when the amount of that income is less than this benefit, or when he is not paid the maternity (paternity) benefit when the amount of that income is more than this benefit or equals to it, one takes account only of the insured income specified in Paragraph 2 of Article 3 of the Law;

– it was not established that if the insured person, during the period of the childcare leave, had other income from the work activity than the insured income specified in Paragraph 2 of Article 3 of the Law (as, for instance, remuneration for work received from an institution of the European Union or an institution of foreign states, provided that the social insurance contributions are calculated on it according to the legal acts pursuant to which the institutions pay the remuneration for work), one takes account of such income when the difference between the maternity (paternity) benefit and such income is paid in case the amount of that income is less than this benefit, or when the maternity (paternity) benefit is not paid in case the amount of that income is more than this benefit or equals to it;

– when paying to the insured person, during the period of his childcare leave, the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month when the amount of that income is less than this benefit or not paying the maternity (paternity) benefit when the amount of that income is more than this benefit or equals to it, one takes account of not all the income, but only of the one held, i.e. the insured income actually received;

– the ground for paying to the insured person the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month when the amount of such an income is less than this benefit and the ground for not paying him the maternity (paternity) benefit when the amount of such an income is more than this benefit or equals to it were related both to the insured income of the insured person which had been received for the work activity carried out during the childcare leave and to his insured income which had been received during the period of the childcare leave for the work activity carried out not during this leave.

  1. As it has been mentioned, the Vilnius Regional Administrative Court, a petitioner, requests to investigate the compliance of inter alia Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law with Article 29 of the Constitution, the provision of Paragraph 1 of Article 48 thereof that each human being shall have the right to receive fair pay for work and social security in the event of unemployment, and Article 52 thereof (petition No. 1B-16/2008).
  2. It has been mentioned that the petitioner disputes the compliance of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law with the Constitution in the aspect that, in its opinion, by the legal regulation established in this paragraph, one limits the right to receive the maternity (paternity) benefit taking account of the fact whether, during the period of a childcare leave, a person has the insured income.

8.1. It has been mentioned that Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law establishes that if the insured person who has been or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit, he shall be paid the difference between this benefit and the insured amount held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity established by the Government.It has been mentioned that, under the legal regulation established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law, the insured person who has been or is on childcare leave shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month only in such a case, when the amount of such income is less than this benefit, and in such cases, when the insured person who has been or is on childcare leave has the insured income the amount whereof is more than the maternity (paternity) benefit or equals to it, he shall not be paid this benefit.8.2. It has been mentioned in this ruling that, having chosen such a form of state care and support (guaranteed in Paragraph 1 of Article 39 of the Constitution) as the leave for raising and brining up children at home, the legislator, while taking account of the purpose of such a leave, which is the creation of possibilities for the parents to raise and bring up children at home for some time without being engaged in the work (professional) activities, as well as of the purpose of the financial support to be rendered during such a leave, which is compensation, within the capabilities of the state, of all lost income or part thereof, may establish the legal regulation whereby the said support would be rendered while taking into consideration other income (received for work performed at the time of the said leave) of the persons making use of such a leave.

8.3. Thus, there is no ground for stating that by the legal regulation established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law, under which the insured person who has been or is on childcare leave and who has the insured income in the appropriate month when the amount of such income is less than the maternity (paternity) benefit, shall be paid the difference between this benefit and this income, while if the amount of the insured income of the insured person is more than the maternity (paternity) benefit or equals to it, he shall not be paid this benefit, one denies the guarantee of state care and support for the families that raise and bring up children at home, which is entrenched in Paragraph 1 of Article 39 of the Constitution.

  1. The disputed legal regulation entrenched in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law is to be assessed in a different manner in the aspect where, under this regulation, a citizen of the Republic of Lithuania, who works in another state, international organisation, institution of the European Union, etc., and who receives a certain income from the work activity which is not the insured income under the Republic of Lithuania laws and from which no contributions are paid to the State Social Insurance Fund, is paid the full maternity (paternity) benefit, while for a citizen of the Republic of Lithuania, who receives the income from the work activity which is the insured income according to the laws of the Republic of Lithuania and from which one pays contributions to the State Social Insurance Fund, the maternity (paternity) benefit is reduced in a corresponding manner or not paid at all.

9.1. It has been mentioned that the legal regulation established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law is to be construed as meaning that the insured person who has been or is on childcare leave is paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month only in such a case, when the amount of such income is less than this benefit, whereas in such cases, when the insured person who has been or is on childcare leave has the insured income the amount whereof is more than the maternity (paternity) benefit or equals to it, he is not paid this benefit.

It has been mentioned that, under the legal regulation established in Paragraph 4 (wording of 4 December 2007) of the Law, when the insured person, during the period of the childcare leave, is paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, when the amount of that income is less than this benefit, or when he is not paid the maternity (paternity) benefit when the amount of that income is more than this benefit or equals to it, one takes account only of the insured income specified in Paragraph 2 of Article 3 of the Law.

As it has been mentioned, Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law did not establish that if the insured person, during the period of the childcare leave, had other income from the work activity than the insured income specified in Paragraph 2 of Article 3 of the Law, one takes account of such an income when the difference between the maternity (paternity) benefit and such an income is paid in case the amount of that income is less than this benefit, or when the maternity (paternity) benefit is not paid in case the amount of that income is more than this benefit or equals to it.

Thus, the legal regulation established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law includes only those recipients of the maternity (paternity) benefit, whose income from the work activity received during the childcare leave is, under the laws of the Republic of Lithuania, the insured income, and, therefore, the maternity (paternity) benefit is reduced in a corresponding manner or it is not paid at all for them, and it does not include those recipients of the maternity (paternity) benefit, whose income from the work activity received during the maternity leave, under the laws of the Republic of Lithuania, is not the insured income, and, therefore, they are paid the full maternity (paternity) benefit.

It needs to be noted that attribution or non-attribution of the income received by the recipients of the benefit from the work activity to the insured income is not the difference of such character and extent, due to which the legislator, while implementing its discretion to establish the conditions of payment of the maternity (paternity) benefits, could treat the recipients of the maternity (paternity) benefit who receive the insured income from the work activity and the recipients of this benefit who receive the income from the work activity which is not the insured income under the laws of the Republic of Lithuania in a different manner and such their treatment would be objectively justified.

9.2. Thus, even though the recipients of the maternity (paternity) benefit whose income from the work activity received during the childcare leave is, under the laws of the Republic of Lithuania, the insured income, and, therefore, the maternity (paternity) benefit is reduced in a corresponding manner or it is not paid at all for them and the recipients of the maternity (paternity) benefit whose income from the work activity received during the childcare leave, under the laws of the Republic of Lithuania, is not the insured income, and, therefore, they are paid the full maternity (paternity) benefit, were in an identical situation as both, the former and the latter, received the income from the work activity, however, under the legal regulation entrenched in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law, they were treated in a different manner.

In this context it needs to be noted that, under the legal regulation entrenched in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law, the recipients of the maternity (paternity) benefit who receive the income from the work activity which, under the laws of the Republic of Lithuania, is not the insured income, in comparison to the recipients of the maternity (paternity) benefit who receive the income from the work activity which, under the laws of the Republic of Lithuania, is the insured income, were groundlessly privileged as the maternity (paternity) benefit paid to them was not reduced in the amount of the sum of such an income, though both recipients of the benefit received the income from the work activity.9.3. It needs to be noted that, as the Constitutional Court has held more than once, the constitutional principle of equality of persons before the law means the innate right of the person to be treated equally with the others and obliges to assess the homogenous facts in the same manner and prohibits to arbitrarily assess the facts, which are the same in essence, in a different manner and it does not permit to discriminate persons and to grant them privileges. The Constitutional Court has also held that the defence and protection of privileges would mean that the constitutional principles of equal rights of persons and justice, the imperative of a harmonious society enshrined in the Constitution and, therefore, the constitutional principle of a state under the rule of law are violated. The constitutional principle of equal rights of persons would be violated if certain persons or groups thereof were treated in a different manner, even though there are not any differences in their character and extent between these groups that such an uneven treatment could be objectively justified.It has been mentioned that that having chosen such a form of state care and support (guaranteed in Paragraph 1 of Article 39 of the Constitution) as the leave for raising and brining up children at home, inter alia providing for rendering of financial support for those who make use of such a leave, the legislator must heed the norms and principles of the Constitution, inter alia the constitutional imperatives of a state under the rule of law and equality of rights.

9.4. It needs to be held that having established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law that if the insured person who has been or is on childcare leave and has the income from the work activity received during that leave which, under the laws of the Republic of Lithuania, is the insured income and its amount is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, but having not established that if the insured person who has been or is on childcare leave and has the income from the work activity received during that leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, one disregarded the principle of equal rights of persons which stems from Article 29 of the Constitution, the guarantee of state care and support for the families that raise and bring up children at home, which is entrenched in Paragraph 1 of Article 39 thereof, and the constitutional principle of a state under the rule of law.

  1. It has been mentioned that the legal regulation established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law which enshrines payment of the difference between the maternity (paternity) benefit and the insured income to the insured person who has the insured income is linked to reception of the income from his work activity, but not to the moment of performance of the work for which this income was received.

As it has been mentioned, Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law established that if the insured person who has been or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit, he shall be paid the difference between this benefit and the insured amount held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity established by the Government.

It has been mentioned that, under the legal regulation established in Paragraph 4 (wordings of 4 May 2007 and 17 June 2008) of Article 21 of the Law, the ground for paying to the insured person the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month when the amount of such an income is less than this benefit and the ground for not paying him the maternity (paternity) benefit when the amount of such an income is more than this benefit or equals to it were related to reception of income from work by the insured one, but not to the moment of performance of the work for which the income was received, i.e., the maternity (paternity) benefit is reduced accordingly or not paid regardless of whether the insured person has done the work for which he received the insured income during the period of his childcare leave.

Thus, the ground for paying to the insured person the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month when the amount of such an income is less than this benefit and the ground for not paying him the maternity (paternity) benefit when the amount of such an income is more than this benefit or equals to it were related also to the insured income of the insured person which was received for the work activity carried out not during the childcare leave, i.e. the maternity (paternity) benefit is reduced or it is not paid at all also in such a case when the insured person has the insured income received during his childcare leave for the work activity carried out not during that leave.

  1. It has been mentioned in this Constitutional Court ruling that having chosen such a form of state care and support (guaranteed in Paragraph 1 of Article 39 of the Constitution) as the leave for raising and brining up children at home, the legislator, while taking account of the purpose of such a leave, which is the creation of possibilities for the parents to raise and bring up children at home for some time without being engaged in the work (professional) activities, as well as of the purpose of the financial support to be rendered during such a leave, which is compensation, within the capabilities of the state, of all lost income or part thereof, may not establish any such legal regulation whereby the amount of the rendered financial support during a leave for the parents to raise and bring children at home would be influenced by the income received during the said leave for the work performed not at the time of the said leave, since by such work one does not deny the purpose of this leave in any way.
  2. It needs to be held that, having established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit, he shall be paid the difference between this benefit and the insured income held by him in the appropriate month, one disregarded the guarantee of state care and support for the families that raise and bring up children at home which is entrenched in Paragraph 1 of Article 39 of the Constitution.
  3. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution.
  4. Having held that, the Constitutional Court will not investigate in the constitutional justice case at issue whether Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law was not in conflict with the provision of Paragraph 1 of Article 48 of the Constitution that each human being shall have the right to receive fair pay for work and social security in the event of unemployment, and Article 52 thereof.
  5. It has been mentioned that the Vilnius Regional Administrative Court, a petitioner, requests to investigate the compliance of Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, insofar as it does not establish that one shall not deduct the income which was actually not received and from which the social insurance contributions have been paid, from the maternity (paternity) benefit received by the insured person who has taken a childcare leave, with Article 52 of the Constitution and the constitutional principle of a state under the rule of law (petitions Nos. 1B-119/2010 and 1B-44/2011).

It has been mentioned that the petitioner substantiates its doubts regarding the compliance of Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law with the Constitution by the fact that, in its opinion, the non-received income is considered as the insured income of the insured person and it is deducted from the maternity (paternity) benefit awarded to him.

  1. It is obvious from the material of the administrative cases which are considered by the Vilnius Regional Administrative Court, a petitioner, in which it was decided to apply to the Constitutional Court with the petitions requesting to investigate the compliance (to a certain extent) of Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law with the Constitution, that in these cases one considers the legal disputes regarding the payment of the maternity (paternity) benefit to the owner of an individual enterprise. According to the petitioner, the income that the owner of an individual enterprise has actually not received, but from which the contributions were paid for the sickness and maternity social insurance of the owner of this enterprise, is included into the insured income when he is paid the difference between the maternity (paternity) benefit and the insured income held .
  2. It needs to be noted that Paragraph 3 (wording of 19 December 2008, which came into force on 1 January 2009) of Article 4 of the Law on State Social Insurance established that self-employed persons, with the exception of the persons engaged in individual activities under business certificates, advocates, assistant advocates, notaries, bailiffs, shall be covered on a compulsory basis inter alia by the sickness and maternity social insurance when it is insured only in order to receive the maternity, paternity and maternity (paternity) payments. It needs to be noted that, under Paragraph 8 (wording of 19 December 2008, which came into force on 1 January 2009) of Article 2 of this Law, the owners of individual enterprises are attributed to self-employed persons.

Thus, as from 1 January 2009, the owners of the individual enterprises have been insured on a compulsory basis inter alia by the sickness and maternity social insurance in order to receive the maternity, paternity and maternity (paternity) payments.

17.1. Paragraph 2 of Article 7 (wording of 19 December 2008, which came into force on 1 January 2009) of the Law on State Social Insurance established that social insurance contributions of self-employed persons shall be calculated and paid from the annual sum of the income received during the preceding year; the annual sum of the income of the owner of the individual enterprise is composed of the difference between the taxed profit, calculated under the Republic of Lithuania Law on Profit Tax, and the profit tax of the tax year. Under Paragraph 4 (wording of 4 November 2004) of Article 9 of the Law on State Social Insurance, the individual enterprises shall pay the social insurance contributions for the owners of these enterprises.

Therefore, under Paragraph 2 of Article 7 (wording of 19 December 2008) and Paragraph 4 (wording of 4 November 2004) of Article 9 of the Law on State Social Insurance, on 1 January 2009, a duty was established for individual enterprises to pay the social insurance contributions for the owner of the enterprise, inter alia for the sickness and maternity social insurance, from the annual sum of the income of the owner of the individual enterprise composed of the difference between the taxed profit, calculated under the Republic of Lithuania Law on Profit Tax, and the profit tax of the tax year.

Such a procedure for calculation and payment of social insurance contributions of the owner of the individual enterprise was in force until 1 January 2010.

17.2. While construing the disputed legal regulation entrenched in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law together with the aforementioned provisions of Paragraph 8 (wording of 19 December 2008) of Article 2, Paragraph 3 (wording of 19 December 2008) of Article 4, Paragraph 2 of Article 7 (wording of 19 December 2008) and Paragraph 4 (wording of 4 November 2004) of Article 9 of the Law on State Social Insurance, it needs to be noted that upon the payment of the social insurance contributions by individual enterprises for the owner of the individual enterprise, inter alia for the sickness and maternity social insurance, from the annual sum of the income of the owner of the individual enterprise composed of the difference between the taxed profit, calculated under the Republic of Lithuania Law on Profit Tax, and the profit tax of the tax year, this sum of the income is included into the insured income of the insured person (the owner of the individual enterprise).

17.3. Item 1 of Paragraph 2 (wording of 22 July 2009 which came into force on 1 January 2010) of Article 7 of the Law on State Social Insurance inter alia established that the base of social insurance contributions of the owner of an individual enterprise shall be composed of the sum of the amount (declared under the procedure established by the State Social Insurance Fund Board with the State Tax Inspectorate under the Ministry of Finance and concerted with the territorial office of the State Social Insurance Fund Board and the territorial State Tax Inspectorate) which is, during the calendar year, withdrawn for the personal needs of the owner of the individual enterprise and which, during a month of a calendar year, may not be less than the minimum monthly salary; these provisions are not applied if the individual enterprise does not perform its activity temporarily and has declared that under the procedure established in the Republic of Lithuania Law on Tax Administration and the laws implementing it. As mentioned, under Paragraph 4 (wording of 4 November 2004) of Article 9 of the Law on State Social Insurance, individual enterprises pay the social insurance contributions for the owners of these enterprises.

Therefore, under Item 1 of Paragraph 2 (wording of 22 July 2009) of Article 7 of the Law on State Social Insurance, on 1 January 2010, a duty was established for the individual enterprises to pay the social insurance contributions for the owner of the individual enterprise inter alia for the sickness and maternity social insurance from the sum of the amount which is not less than the minimum monthly salary.

Such a procedure for calculation and payment of social insurance contributions of the owner of an individual enterprise was effective until 1 July 2010, when the legal regulation established in Paragraph 3 (wording of 17 June 2010) of Article 4 of the Law on State Social Insurance, under which inter alia the owners of the individual enterprises are not insured by the sickness and maternity social insurance on a compulsory basis, came into force.

17.4. While construing the disputed legal regulation entrenched in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law together with the aforementioned provisions of Paragraph 8 (wording of 19 December 2008) of Article 2, Paragraph 3 (wording of 19 December 2008) of Article 4, Paragraph 2 (wording of 22 July 2009) of Article 7 and Paragraph 4 (wording of 4 November 2004) of Article 9 of the Law on State Social Insurance, it needs to be noted that upon the payment of the social insurance contributions by individual enterprises for the owner of the individual enterprise, inter alia for the sickness and maternity social insurance from the sum of the amount which is not less than the minimum monthly salary, this sum is included into the insured income of the insured person (the owner of the individual enterprise).

  1. In the context of the constitutional justice case at issue it needs to be noted that such a situation when the income, from which contributions are paid for the sickness and maternity insurance of the owners of individual enterprises inter alia in order to receive the maternity (paternity) payments, is included into the insured income of the owner of the individual enterprise while paying him the difference between the maternity (paternity) benefit and the insured income, was possible only in the period from 1 January 2009 till 1 July 2010, when, under the Law on State Social Insurance, the owners of individual enterprises were insured on a compulsory basis by the social insurance of sickness and maternity inter alia in order to receive the maternity (paternity) payments, and when the legal regulation established in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law applicable inter alia to the owners of individual enterprises insured by the sickness and maternity social insurance was in force.
  2. It has been mentioned that Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law established that if the insured person who has been or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between this benefit (the sum total of these benefits) and the insured amount held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity established by the Government.

It has been mentioned that the legal regulation established in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law is to be construed as meaning that the insured person who has been or is on childcare leave shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month only in such a case, when the amount of such income is less than this benefit (the sum total of these benefits), whereas in such cases, when the insured person who has been or is on childcare leave has the insured income the amount whereof is more than the maternity (paternity) benefit or equals to it, he shall not be paid this benefit (the sum total of these benefits).

It has been mentioned that, under Paragraph 2 (wording of 20 December 2007) of Article 3 of the Law, the insured income of the insured person shall be inter alia all the income of a person from which one paid or had to pay state social insurance contributions for the sickness and maternity social insurance.

It has been mentioned that, under the legal regulation established in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, when the insured person, during the period of the childcare leave, is paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month in case the amount of that income is less than this benefit, or when he is not paid the maternity (paternity) benefit in case the amount of that income is more than this benefit or equals to it, one takes account of not all the insured income but only of the income held, i.e. the insured income actually received. Thus, only when the formula “the insured income held” used in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law is understood in this way, one is to hold that the insured income that the insured person did not hold in the appropriate month (has actually not received) does not fall within the scope of regulation of Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, i.e., according to this legal regulation, for the insured person who does not have (has actually not received) the insured income, the maternity (paternity) benefit (the sum total of these benefits) should not have been reduced when the difference between this benefit (the sum total of these benefits) and the insured income was being paid. Therefore, there is no ground to state that Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, insofar as, according to a petitioner, it does not establish that one shall not deduct the income, which was actually not received and from which the social insurance contributions have been paid, from the maternity (paternity) benefit received by the insured person who has taken a childcare leave, was in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. It has been mentioned that, under the legal regulation established in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, the insured person who has been or is on childcare leave shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month only in such a case, when the amount of such income is less than this benefit (the sum total of these benefits), whereas in such cases, when the insured person who has been or is on childcare leave has the insured income the amount whereof is more than the maternity (paternity) benefit or equals to it, he shall not be paid this benefit (the sum total of these benefits), i.e. the paid maternity (paternity) benefit (the sum total of these benefits) is reduced or it is not paid at all if during his childcare leave the insured person has the insured income.

Having compared the legal regulation established in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law with the legal regulation established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law, it needs to be noted that the legal regulation established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law was amended, however, it did not change in the aspects investigated in the constitutional justice case at issue, i.e. it was not established that if the insured person who has been or is on childcare leave has the income received for the work activity carried out during that leave which, under the Republic of Lithuania laws, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he is paid the difference between this benefit (the sum total of these benefits) and the income from the work activity held by him in the appropriate month, as well as it was established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit, he shall be paid the difference between this benefit and the insured income held by him in the appropriate month.

  1. It has been held in this ruling of the Constitutional Court that Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution.

Having held that, referring to the same arguments, it needs also to be held that Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution.

  1. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution.
  2. On 2 July 2010, the Seimas adopted the Republic of Lithuania Law on Amending Articles 5, 6, 16, 18, 19, 20 and 21 of the Law on Sickness and Maternity Social Insurance which (with a certain exception) came into force on 1 July 2011. Paragraph 3 of Article 7 of this law amended Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law which is disputed in the constitutional justice case at issue. Paragraph 4 (wording of 2 July 2010) of Article 21 of the Law had to come into effect on 1 July 2011.
  3. On 22 December 2010, the Seimas adopted the Republic of Lithuania Law on Amending Articles 5, 8, 16, 18, 181, 183, 19 and 21 of the Law on Sickness and Maternity Social Insurance, which, with a certain exception, came into force on 1 January 2011. Article 8 of this law amended Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law which is disputed in the constitutional justice case at issue and set it forth as follows:

“If the insured person who has been or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between this benefit and the insured income held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity approved by the Government. When the maternity (paternity) benefit is being paid, the income received under an author’s agreement for the work done until the first day of the childcare leave shall not be included into the insured income.”

Thus, in Paragraph 4 (wording of 22 December 2010 which came into force on 1 January 2011) of Article 21 of the Law, one enshrined a new provision prescribing that, when the maternity (paternity) benefit is being paid, the income received under an author’s agreement for the work done until the first day of the childcare leave is not included into the insured income.

Consequently, according to the legal regulation established in Paragraph 4 (wording of 22 December 2010 which came into force on 1 January 2011) of Article 21 of the Law, when the maternity (paternity) benefit is being paid, the insured income does not include only the income received under authors’ agreements for the work done until the first day of the childcare leave, therefore, the paid maternity (paternity) benefit is not reduced in the amount of the sum of this income, however, other income received during the childcare leave for the work activity carried out not during the said leave, is included into the insured income, therefore, the maternity (paternity) benefit is reduced in the amount of the sum of this income.

  1. Having compared the legal regulation established in Paragraph 4 (wording of 22 December 2010 which came into force on 1 January 2011) of Article 21 of the Law with the one established in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, it needs to be noted that the legal regulation established in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law was amended, however, it did not change in the aspects investigated in the constitutional justice case at issue, i.e., it was not established that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, as well as it was not established that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income.
  2. It has been held in this ruling of the Constitutional Court that Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution.

Having held that, referring to the same arguments, it also needs to be held that Paragraph 4 (wording of 22 December 2010 which came into force on 1 January 2011) of Article 21 of the Law, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it did not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, was in conflict with Paragraph 1 of Article 39 of the Constitution.

  1. Taking account of the arguments set forth, one is to draw the conclusion that Paragraph 4 (wording of 22 December 2010 which came into force on 1 January 2011) of Article 21 of the Law, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it did not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, was in conflict with Paragraph 1 of Article 39 of the Constitution.
  2. On 22 December 2010, the Seimas adopted the Republic of Lithuania Law on Amending Articles 5, 6, 16, 18, 19, 20 and 21 of the Law on Sickness and Maternity Social Insurance which came into force on 31 December 2010. Article 3 of this law amended Paragraph 4 (wording of 2 July 2010) of Article 21 of the Law, which had not come into force, and set it forth as follows:

“If the insured person who has been or is on childcare leave, until the child reaches the age of one year, has the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between this benefit and the insured income held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity approved by the Government. When the maternity (paternity) benefit is being paid, the income received under an author’s agreement for the work done until the first day of the childcare leave shall not be included into the insured income.”

Having compared the legal regulation established in Paragraph 4 (wording of 22 December 2010 which came into force on 1 July 2011) of Article 21 of the Law with the one established in Paragraph 4 (wording of 22 December 2010 which came into force on 1 January 2011) of Article 21 of the Law, it needs to be noted that the legal regulation established in Paragraph 4 (wording of 22 December 2010 which came into force on 1 January 2011) of Article 21 of the Law was amended, however, it did not change in the aspects investigated in the constitutional justice case at issue, i.e., it was not established that if the insured person who has been or is on childcare leave, until the child reaches the age of one year, and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, and it was not established that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income.

  1. It has been held in this ruling of the Constitutional Court that Paragraph 4 (wording of 22 December 2010 which came into force on 1 January 2011) of Article 21 of the Law, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it did not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, was in conflict with Paragraph 1 of Article 39 of the Constitution.

Having held that, referring to the same arguments, it also needs to be held that Paragraph 4 (wording of 22 December 2010 which came into force on 1 July 2011) of Article 21 of the Law, insofar as it does not establish that if the insured person who has been or is on childcare leave, until the child reaches the age of one year, and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, is in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it does not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, is in conflict with Paragraph 1 of Article 39 of the Constitution.

  1. Taking account of the arguments set forth, one is to draw a conclusion that Paragraph 4 (wording of 22 December 2010 which came into force on 1 July 2011) of Article 21 of the Law, insofar as it does not establish that if the insured person who has been or is on childcare leave, until the child reaches the age of one year, and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, is in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it does not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, is in conflict with Paragraph 1 of Article 39 of the Constitution.

V

On the compliance of Item 4 of Paragraph 1 of Article 15 of the Statute of Service in the Customs of the Republic of Lithuania (wording of 19 June 2003) approved by the Law on Approving and Implementing the Statute of Service in the Customs of the Republic of Lithuania with Article 29, the provision “Each human being may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution and with the constitutional principle of a state under the rule of law.

  1. The Vilnius Regional Administrative Court (petition No. 1B-16/2008), a petitioner, doubts whether Item 4 of Paragraph 1 of Article 15 of the Statute of Service in the Customs of the Republic of Lithuania (wording of 19 June 2003) approved by the Law on Approving and Implementing the Statute of Service in the Customs of the Republic of Lithuania is not in conflict with Article 29, the provision “Each human being may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution and with the constitutional principle of a state under the rule of law.
  2. On 19 June 2003, the Seimas adopted the Republic of Lithuania Law on Approving and Implementing the Statute of Service in the Customs of the Republic of Lithuania, by Article 1 whereof the Statute of Service in the Customs of the Republic of Lithuania was amended and set forth in a new wording. The Statute of this wording came into force on 1 July 2003.

The Statute establishes the procedure for admission to and dismissal from office in the Customs of the Republic of Lithuania, transfer of customs officials to another position, assessment of service-related activity, their motivation, responsibility, social guarantees and other peculiarities of their status (Paragraph 1 of Article 1 of the Statute).

Under Paragraph 1 of Article 2 of the Statute, the customs official is a statutory state servant, who serves in customs and who ex officio enjoys the powers of public or interior administration with regard to persons subordinate and not subordinate to him. The general Law on the State Service, which regulates state service relations, is applied to customs officials inasmuch as their status is not regulated by the Statute; the procedure for payment for work established in the Law on the State Service is applied to customs officials without reservations (Paragraph 2 of Article 1 of the Statute); the laws regulating labour relations and social guarantees, as well as other legal acts, are applied to customs officials inasmuch as their status and social guarantees are not regulated by the Statute and the Law on the State Service (Paragraph 3 of Article 1 of the Statute).

  1. Item 4 “The Activity Incompatible with the Office of the Customs Official” (which is disputed by the petitioner) of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) prescribed:

“1. The customs official shall not be allowed: <...>

4) to hold a job as a hired employee, advisor, expert or consultant in all types of enterprises, establishments or organisations, as well as to receive remuneration for work other than established by the Law on the State Service, save remuneration for work in all level electoral or referendum commissions and for work under contracts concluded with electoral or referendum commissions, for scientific and educational work in schools of higher education or state establishments for raising qualification of state servants, for informal adult education, for preparation of draft legal acts (provided that this function was not pointed out in the job description of the customs official), when he, by a resolution of the Seimas or a decision of the Board of the Seimas, by an ordinance of the Speaker of the Seimas, by a decree of the President of the Republic, by a resolution of the Government or an ordinance of the Prime Minster, is appointed for preparation of draft legal acts, also save the royalties for production that is an object of intellectual property rights.”

3.1. Thus, Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) established a general prohibition for a customs official to hold any other job and receive any other remuneration, save the concrete exceptions established in this item, without taking account of any circumstances, inter alia without taking account of the fact whether the other job would create preconditions for a conflict between public and private interests in the service in customs, would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, and to hinder the customs official to properly perform his duties.

3.2. Under Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), a customs official was unconditionally allowed to hold only a concretely specified additional job: a job in all level electoral or referendum commissions, a job under contracts concluded with electoral or referendum commissions, a scientific and educational job in schools of higher education or state establishments for raising qualification of state servants, a job related with informal adult education, preparation of draft legal acts (provided that this function was not pointed out in the job description of the customs official), when the customs official, by a resolution of the Seimas or a decision of the Board of the Seimas, by an ordinance of the Speaker of the Seimas, by a decree of the President of the Republic, by a resolution of the Government or an ordinance of the Prime Minster, was appointed for preparation of draft legal acts; in addition, a customs official was allowed to receive the royalties for production that is an object of intellectual property rights.

Thus, under the legal regulation entrenched in Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), a customs official was allowed to hold only such an additional job (and to receive remuneration for it), which was concretely specified in this item, without taking account of any circumstances, inter alia without taking account of the fact whether the other job would not create preconditions for a conflict between public and private interests in the service in customs, whether it would not create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, and to hinder the customs official to properly perform his duties.

3.3. The disputed provision of Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) is related to the provision of Item 5 of the same paragraph whereby a customs official is not allowed to hold more than one office as a state servant. Thus, also a special prohibition for a customs official to hold an additional job in the state service was established.

  1. In this context it needs to be noted that, on 6 November 2008, the Seimas adopted the Republic of Lithuania Law on Amending and Supplementing Articles 5, 6, 15, 25, 46, 54, 55, 56 of the Statute of Service in the Customs of the Republic of Lithuania, which came into force on 22 November 2008. Paragraph 2 of Article 3 of this law amended Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) and it was set forth as follows:

“4) to hold a job in enterprises, establishments or organisations, as well as to receive remuneration for this work, provided that it creates preconditions for a conflict between public and private interests in the service in customs, discredits customs, hinders the customs official to properly perform the duties described in his job description, also when it is a job in the enterprises, establishments and organisations with regard to which the customs official enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and when there are circumstances due to which the customs official may not hold another job and receive remuneration for it.”

Upon comparing the legal regulation established in Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), which is being disputed in the constitutional justice case at issue, with the one established in Item 4 of Paragraph 1 of Article 15 of the Statute as set forth in the wording of 6 November 2008, it is clear that the latter one established the criteria according to which it must be decided in each individual case whether to allow a customs official to hold an additional job, upon evaluating, in a compulsory manner, whether by such permission one would not create preconditions for a conflict between public and private interests in customs, for use the service in customs for one’s own interests, for one’s engaging in activities discrediting customs, for hindering the customs official to properly perform his duties, whether the customs official would not hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are not any circumstances due to which the customs official may not hold another job and receive remuneration for it.

  1. It has been mentioned that the petitioner has doubts whether the prohibition, which is entrenched in Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), for customs officials to hold an additional job and receive other remuneration is proportionate to the objective sought by such regulation, whether there are such differences between the status of customs officials and that of other state servants so that the different limitations upon holding an additional job would be objectively justified.
  2. It has been mentioned that the petitioner has doubts as regards the compliance of Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) with inter alia the provision “Each human being may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution.

6.1. In the context of the constitutional justice case at issue it needs to be noted that the provision “Each human being may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution is related with the provision “Citizens shall have <…> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution. In its rulings of 13 December 2004, 13 August 2007 and 7 July 2011 the Constitutional Court noted that the constitutional right of the citizen to enter on equal terms in the state service of the Republic of Lithuania is a version of the constitutional right of each person to freely choose a job.

6.2. It needs to be noted that the provision of Paragraph 1 of Article 33 of the Constitution, which consolidates the right of citizens to enter on equal terms in the state service of the Republic of Lithuania, should not be construed only linguistically and should not be understood only as the right to enter in the state service, i.e. only as the one linked to the admission of a person to the state service. As the Constitutional Court has noted more than once, the relations of the state service comprise not only the relations linked to the implementation of the right of the citizen to enter on equal terms in the state service of the Republic of Lithuania, but also the relations that arise after the citizen enters in the state service and while he performs his duties at the state service (Constitutional Court rulings of 13 December 2004, 13 August 2007 and 7 July 2011).

  1. In the Constitution the state service is mentioned expressis verbis only in Paragraph 1 of Article 33 thereof, in which it is established that citizens have the right to participate in the government of the state both directly and through their democratically elected representatives, as well as the right to enter into the state service of the Republic of Lithuania under equal conditions, and in Article 141 of the Constitution, in which it is established that persons performing actual military service or alternative service, as well as officers of the national defence system, the police and the interior, non-commissioned officers, re-enlistees, and other paid officials of paramilitary and security services who have not retired to the reserve may not be Members of the Seimas or members of municipal councils and they may not hold elected or appointed office in the state civil service, nor may they take part in the activities of political parties and organisations (Constitutional Court ruling of 13 December 2004).

7.1. While construing the constitutional concept of the state service and while taking account of the constitutional principle of a state under the rule of law and the provision of Paragraph 1 of Article 48 of the Constitution that each human being may freely choose a job or business, in its ruling of 13 December 2004 the Constitutional Court formulated the following provisions of the constitutional doctrine, which are important in the constitutional justice case at issue:

– the state service is a professional activity of state servants linked with guaranteeing of the public interest; the fact that the purpose of the state service is to guarantee, when state and municipal institutions exercise public administration and provide public service, the public interest rather than private interests of the employees engaged in this activity, presupposes a special procedure of forming the state servants as a corps, the specifics of their legal status, and their special responsibility to the society for implementation of functions commissioned to them as well;

– the public interest must dominate in relation to the private interest in the state service; in the state service the conflict between public and private interests must be avoided and no conditions for emerging of such conflicts should be created; the opportunities provided by the state service should not be used for private benefit; when ensuring the public interest, it is essential to avoid unreasonable and unlawful impact by the interest groups, and, even more important, pressure on state servants, who adopt decisions while exercising public administration and providing public services (or participate in drafting and executing these decisions, coordinating and/or controlling the implementation thereof, etc.); according to the Constitution, the legislator has a duty to establish by legal acts such legal regulation which would ensure that state officials, who perform their functions while exercising state power, and all the persons, who make decisions important to the society and the state, are able to properly execute their authority, so that contraposition of public and private interests would be avoided, that no legal conditions would be created for state officials, who perform their functions while exercising state power, and all the persons, who make decisions important to the society and the state, to act in the private or group interests, instead of the interests of the Nation and the State of Lithuania, and use their status for the benefit of their own, their close relatives or other persons, so that it might be possible to effectively control how state officials, who perform their functions while exercising state power, and all the persons, who make decisions important to the society and the state, follow the said requirements, and that the above-mentioned state officials and other persons be held liable pursuant to the Constitution and law in case they do not follow these requirements;

– the legislator enjoys the right to establish certain requirements, which would limit the following activity of state servants which is not related to the state service: other work (business), as well as political and public activity, which could result in the conflict between public and private interests of state servants, and create prerequisites for using the opportunities provided by the state service not for guaranteeing the public interest, but for private interests, and which would hinder state servants from performing their official duties or would be harmful to the authority of the state service or respective state or municipal institution and discredit them;

– the constitutional concept of the state service, the constitutional purpose of the state service, the type of it as a professional activity, imply that, while paying heed to inter alia the constitutional principle of proportionality, the law should establish such limitations upon other work of state servants, which would prevent state servants from working in the enterprises, establishments, organisations, in regard to which they enjoy authoritative empowerments or the activity of which they control or supervise, or adopt any other decisions related to this enterprise, establishment or organisation (or participate in drafting and executing these decisions, coordinating and/or controlling the implementation thereof, etc.);

– such regulation of the right of state servants to work in another work place and receive other remuneration would be in compliance with the Constitution, under which one could decide in each particular case whether to permit the state servant to work in another work place, by having additionally assessed whether by such a permission no preconditions would be created for the conflict between state and private interests in the state service, for the use of the state service in private interests, for engagement in the activity discrediting the state service, for hindrance of the person who holds an office in the state service to properly perform the duties assigned to him, whether the state servant would not work in the enterprises, establishments and organisations in whose regard he enjoys authoritative empowerments or controls and supervises their activities or adopts any other decisions as regards this enterprise, establishment or organisation, whether there are not any other circumstances due to which state servants cannot work in another work place and receive other remuneration; the legislator ought to provide for the subjects, too, who would decide whether to permit or not to permit the state servant to work in another work place and receive other remuneration, and for liability of these subjects for adopted unlawful decisions.

7.2. In the constitutional justice case at issue Article 141 of the Constitution is of importance, wherein it is established:

“Persons performing actual military service or alternative service, as well as officers of the national defence system, the police and the interior, non-commissioned officers, re-enlistees, and other paid officials of paramilitary and security services who have not retired to the reserve may not be Members of the Seimas or members of municipal councils. They may not hold elected or appointed office in the State civil service, nor may they take part in the activities of political parties and organisations.”

7.2.1. In this context it needs to be noted that the Constitutional Court has held that the content of each state function and the environment of its implementation implies that the state institutions which perform these functions may not be the same in their status and type of activity (Constitutional Court ruling of 13 December 2004); some state functions are performed, first of all (or in majority of cases), through state (and municipal) civil institutions, the others—through military and/or paramilitary state institutions (Constitutional Court ruling of 24 September 2009); under the Constitution, military, paramilitary and security services are separated from the civil service; the differentiated concept of state civil institutions as well as state military and paramilitary institutions is consolidated in the Constitution; it creates the legal prerequisites for differentiated regulation of relations, linked with the activity of state civil institutions as well as state military and paramilitary institutions, and for establishing the legal status of persons employed at state civil and military as well as paramilitary institutions which would have certain specific characteristics (Constitutional Court rulings of 24 December 2002 and 13 December 2004).

In the Constitutional Court rulings of 13 December 2004 and 15 March 2011 it was also held that from the Constitution, inter alia from the constitutional requirement that the Lithuanian state power be organised in a democratic manner, from the constitutional imperative of an open, just and harmonious society, from the constitutional principle of responsible governance arises the fact that state military institutions may not enjoy priority before state civil institutions, that decisions of state military and paramilitary institutions and officials must be grounded upon decisions of state civil institutions, that state military institutions must be accountable to state civil institutions and should be controlled by the latter, whereas democratic civil control of state military and paramilitary institutions (including the armed forces) is a necessary precondition of civil democratic governance, thus, also that of a state under the rule of law.

It also needs to be noted that, while construing Article 141 of the Constitution, the Constitutional Court has held that the relations of strict subordination and other statutory (based on special service regulations) relations are of great importance to persons in actual military service, officers and non-commissioned officers of the national defence and the internal service, officials of security services and other officials mentioned in Article 141 of the Constitution; there may emerge an internal collision between the necessity to carry out the functions of state power and perform the statutory requirements in the activity of these and other persons mentioned in Article 141 of the Constitution; this may be one of the reasons why the functioning of the democratic institutions could be deranged, thus there are no preconditions to assert that a soldier, an officer of the police, the internal service or any other person indicated in Article 141 of the Constitution may be a minister or hold other positions pointed out in this article without having retired to the reserve (Constitutional Court decision of 29 May 1996, ruling of 13 December 2004). In addition, in its ruling of 13 December 2004, the Constitutional Court noted that, when protecting the state service from unreasonable and unlawful impact by the interest groups (thus, political powers as well), according to the Constitution, certain links of the system of the state service must be depoliticised; according to Article 141 of the Constitution, persons performing actual military service or alternative service, as well as officers of the national defence system, of the police and the Interior, non-commissioned officers, re-enlistees and other paid officials of paramilitary and security services who have not retired to the reserve may not take part in the activities of political parties and political organisations.

7.2.2. In the course of construction of Article 141 of the Constitution it needs to be noted that the Constitutional Court has held in its jurisprudence more than once that the Constitution may not be construed only literally by applying the sole linguistic (verbal) method (inter alia Constitutional Court rulings of 25 May 2004, 16 January 2006 and 24 September 2009); in case one has made the literal (linguistic, verbal) construction of the Constitution absolute, the content of the overall constitutional legal regulation is also lessened, and, if not all, then at least some values entrenched in, and defended and protected by the Constitution, are ignored, and, possibly, preconditions are created by which the aims that the Nation consolidated in the Constitution adopted by referendum might be violated (Constitutional Court ruling of 6 June 2006); it is not permissible to make only the literal (linguistic, verbal) method of construction of the Constitution, but also any other method of construction absolute; when construing the Constitution, one must apply various methods of construction of law: systemic, the one of general principles of law, logical, teleological, the one of intentions of the legislator, the one of precedents, historical, comparative, etc.; only such comprehensive interpretation of the Constitution may provide conditions for realisation of the purpose of the Constitution as a social contract and the act of the supreme legal power, and for ensuring that the meaning of the Constitution will not be deviated from, that the spirit of the Constitution will not be denied, and that the values upon which the Nation has based the Constitution adopted by it will be consolidated in reality (Constitutional Court rulings of 25 May 2004, 13 December 2004 and 6 June 2006).

The Constitutional Court has also noted that one of the conditions ensuring the stability of the Constitution as a legal reality is the stability of its text; the text of the Constitution should not be corrected, for example, only after the terminology, inter alia legal terminology, has changed. The meaning of the Constitution as an extremely stable legal act would also be ignored if the intervention to its text would be made every time when certain social relations which are regulated by law undergo changes (Constitutional Court ruling of 28 March 2006).

7.2.3. While taking account of this, it needs to be noted that the notions characteristic of the armed forces and military service inasmuch as they are related to the service in the police and the interior service (officers non-commissioned officers and re-enlistees of the police and the interior), which are used in Article 141 of the Constitution, at present are of historical content. The constitutional purpose of the police and the interior service, which is related first of all with maintaining the public order and protection of the rights of persons, determines the fact that the police and the interior service may not be identified with state military institutions in which military service is performed. Therefore, the persons performing the service in the police and the interior service may not be awarded the military ranks identical to the military ranks of servicemen in the national defence system. However, it does not mean that the prohibitions established in Article 141 of the Constitution are not applicable to the service in the police and the interior service: these prohibitions are applied to officials of the police and of the interior service, even though, while following the principle of civil democratic control of state military and paramilitary institutions, they are not awarded military ranks of officers and non-commissioned officers, nor may they have the specific status of a re-enlistee, who has completed the compulsory military service.

7.2.4. As mentioned, the relations of strict subordination and other statutory (based on special service regulations) relations are of great importance to the officials mentioned in Article 141 of the Constitution. The paramilitary services pointed out in Article 141 of the Constitution may not be identified with military institutions of national defence, nor may the officials of the former be identified with servicemen of the national defence system, since the constitutional purpose of paramilitary services is related not precisely with defence of the state against an aggression and fulfilment of international defence commitments, but rather with other areas that are important to the security of the state and society (guarding and control of the state border, ensuring the public order, investigation of crimes, protection of state secrets, etc.); on the other hand, along with their main functions, in time of war such paramilitary services may also be commissioned to protect the state in the armed forces, to help the army to implement other tasks related with defence of the state and its international commitments. Thus, the constitutional purpose of such paramilitary services determines the necessity to organise their activities by statutory (special service regulations) relations.

Consequently, the notion “paramilitary <…> services” of Article 141 of the Constitution is to be construed as including the state statutory institutions not attributable to the national defence system. These institutions are the police, interior service and security service (i.e. the police, interior service and security service establishments), which are expressis verbis mentioned in Article 141 of the Constitution, as well as other state institutions whose activity, while taking account of their purpose and functions, must be organised on the grounds of statutory relations.

7.2.5. Article 141 of the Constitution implies that officials of the state statutory institutions perform the state statutory service, which is a specific type of the state service, which is different from the other (civil) state service and the military service. From the statutory concept of the state service emerge the features characteristic of such service only: special legal regulation by legal acts (statutes) establishing the peculiarities of corresponding service, statutory relations of strict hierarchical subordination, which are characteristic inter alia of a special regime of performance of service (inter alia discharging of duties of the service, time of service, peculiarities of service-related subordination, the system of special service ranks (grades) of marking the career of the officials and their place in the hierarchy of statutory relations, specificity of service-related (disciplinary) liability), special requirements for officials of state statutory institutions (inter alia those related to loyalty to the State of Lithuania and their reliability, education, age, state of health, etc.), specific powers of these officials (inter alia with regard to persons not subordinate to them, as well as those linked with the use of measures of force), special social and other guarantees.

7.2.6. It needs to be noted that Article 141 of the Constitution does not give an exhaustive list of state paramilitary (statutory) institutions, therefore, the legislator, while regulating the relations of the state service may provide for also other state institutions (inter alia customs), not only the police, the interior service and the security service, while the activities of the former, when one takes account of their purpose, must be organised on the grounds of statutory relations, i.e. in those institutions the state statutory service would be performed.

It also needs to be noted that the state statutory service cannot be the same due to the variety of functions performed by it, therefore, the status of officials of the police, the interior service, the security service and other state statutory institutions (inter alia customs) must be differentiated and have the peculiarities established in corresponding statutes.

7.2.7. Article 141 of the Constitution establishes special limitations upon activities of officials of state statutory institutions. By these limitations one seeks to ensure depoliticisation of state statutory institutions: officials of state statutory institutions may not be Members of the Seimas and members of municipal institutions, may not hold elected or appointed office in the state civil service (i.e. the service that is not attributed to a statutory service), nor may they take part in the activities of political parties and organisations (inter alia they may not be members of these parties and organisations, nor may they be candidates to a state or public office proposed or nominated by such parties and organisations). By these limitations the constitutional principle of civil democratic control of state military and paramilitary institutions is expressed. Such limitations inter alia include special limitations upon other work of officials of state statutory institutions—a prohibition to hold a job in a civil (non-statutory) state service and in political parties and organisations.

It needs to be noted that Article 141 of the Constitution does not explicitly establish any other limitations upon activities of officials of state statutory institutions. However, this article, establishing bigger limitations upon activities of officials of state statutory institutions than the limitations, stemming from Paragraph 1 of Article 33 of the Constitution, upon activities of the persons holding positions in the civil (non-statutory) state service, as well as the purpose and character of the state statutory service, implies that the legislator, while regulating limitations for officials of state statutory institutions upon holding a job other than the one pointed out in Article 141 of the Constitution, not only must establish the limitations that stem from Paragraph 1 of Article 33 of the Constitution, but also different limitations upon the other job, if the necessity to establish such limitations is implied by the functions and/or the status of the officials of state statutory institutions, emerging from the constitutional purpose of such institutions. While establishing such limitations, the legislator enjoys broad discretion inter alia to establish additional criteria, which must be taken into consideration while deciding whether the other job of officials of state statutory institutions would be compatible with the functions of a corresponding sate statutory institution and the status of its officials, also to establish an exhaustive list of activity prohibited for officials of a corresponding state statutory institution, by indicating in it the areas of economic activity and/or jobs and positions incompatible with the discharging of functions by the corresponding state statutory institution and/or incompatible with the status of its officials.

  1. In the context of the constitutional justice case at issue it needs to be noted that in the course of establishing limitations upon the additional job of customs officials by law, it is necessary to establish limitations, emerging from Paragraph 1 of Article 33 and Article 141 of the Constitution, upon the additional job of officials of state statutory institutions, i.e.:

– the limitations established expressis verbis in Article 141 of the Constitution (a prohibition to hold a job in the civil (non-statutory) state service and in political parties and organisations);

– the limitations, emerging from Paragraph 1 of Article 33 of the Constitution, upon holding a job other than the one pointed out in Article 141 of the Constitution, i.e. to establish such legal regulation according to which it would be possible to decide in each individual case whether to allow a customs official to hold such an additional job, upon evaluating, in a compulsory manner, whether by such permission one would not create preconditions for a conflict between public and private interests in the customs service, for use the service in customs for one’s own interests, for one’s engaging in activities discrediting customs, for hindering the customs official to properly perform his duties, whether the customs official would not hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are not any circumstances due to which the customs official may not hold another job and receive remuneration for it.

It also needs to be noted that, under the Constitution, inter alia Paragraph 1 of Article 33 thereof, it is not allowed to establish any such legal regulation on limitations upon customs officials to hold a job other than that pointed out in Article 141 of the Constitution, where, according to such legal regulation:

– a general prohibition for a customs official would be established to hold any other job without taking account of any circumstances, i.e., without assessing whether such an additional job would create preconditions for a conflict between public and private interests in the service in customs, whether it would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official;

– it would be allowed to hold a certain additional job without taking account of any circumstances, i.e., without assessing whether such an additional job would not create preconditions for a conflict between public and private interests in the service in customs, whether it would not create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official will not hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are not any other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official.

  1. While deciding whether the legal regulation, disputed by the petitioner, established in Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) is not in conflict with the Constitution, it needs to be noted that, as mentioned, in the course of establishing limitations upon an additional job of customs officials by law, inter alia the limitations expressis verbis established in Article 141 of the Constitution (a prohibition to hold a job in the civil (non-statutory) state service and in political parties and organisations) must be provided for.

It has also been mentioned that the general prohibition, established in Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), for a customs official to hold any other job and receive any other remuneration inter alia includes the prohibition to hold any job in political parties and political organisations; the disputed provision of Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) is related to the provision of Item 5 of the same paragraph whereby a customs official is not allowed to hold more than one office as a state servant, i.e. a special prohibition for a customs official to hold an additional job in the state service is also established. It has also been mentioned that the general prohibition was established in Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) for a customs official to hold any other job and receive any other remuneration, save the concrete exceptions established in the said item. These exceptions did not encompass a job in political parties and political organisations.

Thus, under the legal regulation established in Items 4 and 5 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), a prohibition was established for a customs official inter alia to hold an additional job in the state service and a job in political parties and political organisations.

  1. It has been mentioned that, under the Constitution, inter alia Paragraph 1 of Article 33 thereof, one is not allowed to establish any such legal regulation on limitations upon customs officials to hold an additional job other than that pointed out in Article 141 of the Constitution, where, according to such legal regulation, a general prohibition for a customs official would be established to hold any other job without taking account of any circumstances, i.e., without assessing whether such an additional job would create preconditions for a conflict between public and private interests in the service in customs, whether it would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official.

It has also been mentioned that Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) established a general prohibition for a customs official to hold any other job and receive any other remuneration, save the concrete exceptions established in this item, without taking account of any circumstances, inter alia without taking account of the fact whether the other job would create preconditions for a conflict between public and private interests in the service in customs, whether it would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, and to hinder the customs official to properly perform his duties.

Thus, Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), insofar as it established a prohibition for a customs official to hold an additional job without assessing whether such a job (save an additional job in the state service and a job in political parties and political organisations) would create preconditions for a conflict between public and private interests in the service in customs, whether it would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official, was in conflict with the provision “Citizens shall have <…> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution.

  1. It also needs to be noted that, under the Constitution, inter alia Paragraph 1 of Article 33 thereof, it is not allowed to establish any such legal regulation on limitations upon customs officials to hold a job other than that pointed out in Article 141 of the Constitution, where, according to such legal regulation, it would be allowed to hold a certain job without taking account of any circumstances, i.e., without assessing whether such an additional job would not create preconditions for a conflict between public and private interests in the service in customs, whether it would not create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would not hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are not any other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official.

It has been mentioned that, under Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), a customs official was allowed to hold a concretely specified additional job: a job in all level electoral or referendum commissions, a job under contracts concluded with electoral or referendum commissions, a scientific and educational job in schools of higher education or state establishments for raising qualification of state servants, a job related with informal adult education, preparation of draft legal acts (provided that this function was not pointed out in the job description of the customs official), when the customs official, by a resolution of the Seimas or a decision of the Board of the Seimas, by an ordinance of the Speaker of the Seimas, by a decree of the President of the Republic, by a resolution of the Government or an ordinance of the Prime Minster, was appointed for preparation of draft legal acts. Thus, under the disputed legal regulation, the customs official was allowed to hold a concretely specified additional job without assessing whether such an additional job would not create preconditions for a conflict between public and private interests in the service in customs, whether it would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would not hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are not any other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official.

While taking account of this, one is to draw a conclusion that Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), insofar as it established that a customs official would be allowed to hold the job concretely specified in this item without assessing whether such an additional job would not create preconditions for a conflict between public and private interests in the service in customs, whether it would not create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would not hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are not any other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official, was in conflict with the provision “Citizens shall have <…> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution.

  1. Thus, it needs to be held that Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), insofar as it established a prohibition for a customs official to hold an additional job without assessing whether such a job (save an additional job in the state service and a job in political parties and political organisations) would create preconditions for a conflict between public and private interests in the service in customs, whether it would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official, as well as insofar as it established that a customs official would be allowed to hold the job concretely specified in this item without assessing whether such an additional job would not create preconditions for a conflict between public and private interests in the service in customs, whether it would not create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would not hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are not any other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official, was in conflict with the provision “Citizens shall have <…> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution.
  2. While taking account of the fact that, as mentioned, the constitutional right of the citizen to enter on equal terms in the state service of the Republic of Lithuania, which is entrenched in Paragraph 1 of Article 33 of the Constitution, is a version of the constitutional right of each person to freely choose a job, which is entrenched in Paragraph 1 of Article 48 of the Constitution, on the grounds of the same arguments it needs to be held that Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), insofar as it established a prohibition for a customs official to hold an additional job without assessing whether such a job (save an additional job in the state service and a job in political parties and political organisations) would create preconditions for a conflict between public and private interests in the service in customs, whether it would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official, as well as insofar as it established that a customs official would be allowed to hold the job concretely specified in this item without assessing whether such an additional job would not create preconditions for a conflict between public and private interests in the service in customs, whether it would not create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would not hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are not any other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official, was also in conflict with the provision “Each human being may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution.
  3. Taking account of the arguments set forth, one is to draw a conclusion that Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003), insofar as it established a prohibition for a customs official to hold an additional job without assessing whether such a job (save an additional job in the state service and a job in political parties and political organisations) would create preconditions for a conflict between public and private interests in the service in customs, whether it would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official, as well as insofar as it established that a customs official would be allowed to hold the job concretely specified in this item without assessing whether such an additional job would not create preconditions for a conflict between public and private interests in the service in customs, whether it would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would not hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are not any other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official, was in conflict with the provision “Citizens shall have <…> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33, the provision “Each human being may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution and with the constitutional principle of a state under the rule of law.
  4. Having held this, in the constitutional justice case at issue the Constitutional Court will not further investigate whether Item 4 of Paragraph 1 of Article 15 of the Statute (wording of 19 June 2003) was not in conflict with Article 29 of the Constitution.

VI

On the compliance of Item 41 (wording of 8 April 2009) of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001 with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law, on the compliance of Item 481 (wording of 16 January 2008) of the Regulations with Article 29 of the Constitution, with the provision of Paragraph 1 of Article 48 thereof whereby each human being shall have the right to receive fair pay for work and social security in the event of unemployment, and with Article 52 of the Constitution, as well as on the compliance of the second paragraph (wording of 16 January 2008) of Item 49 of the Regulations with Articles 29, 38 and 52 of the Constitution and the constitutional principle of a state under the rule of law.

  1. The Vilnius Regional Administrative Court, a petitioner, requests investigation inter alia into the compliance of the provision that the persons “shall be paid a maternity benefit if they do not have any income on which sickness and maternity social insurance contributions are calculated” of Item 41 (wording of 8 April 2009) of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001, insofar as it establishes that the maternity benefit shall not be awarded in such a case when the income of a woman on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation, with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-27/2010), as well as it requests investigation into the compliance of Item 481 (wording of 16 January 2008) of the Regulations with Article 29 of the Constitution, with the provision of Paragraph 1 of Article 48 thereof whereby each human being shall have the right to receive fair pay for work and social security in the event of unemployment, and with Article 52 of the Constitution (petition No. 1B-16/2008).

The Kaunas Regional Administrative Court, a petitioner, requests investigation into the compliance of the second paragraph (wording of 16 January 2008) of Item 49 of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001 with Articles 29, 38 and 52 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-27/2011).

  1. It has been mentioned that the Vilnius Regional Administrative Court, a petitioner, (petition No. 1B-27/2010) requests investigation inter alia into the compliance of the provision that the persons “shall be paid a maternity benefit if they do not have any income on which sickness and maternity social insurance contributions are calculated” of Item 41 (wording of 8 April 2009) of the Regulations, insofar as it establishes that the maternity benefit shall not be awarded in such a case when the income of a woman on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation, with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law. The disputed provision is entrenched in the second paragraph (wording of 8 April 2009) of Item 41 of the Regulations.

The petitioner, while doubting concerning the compliance of the aforesaid provision of Item 41 (wording of 8 April 2009) of the Regulations with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law, substantiates its doubt by the same arguments as regards the compliance of Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law, i.e. by the fact that the maternity benefit shall not be awarded even in the case when the income of the woman on which the sickness and maternity social insurance contributions are calculated, does not adequately compensate the lost remuneration which is subject to compensation, also by the fact that such legal regulation violates the equality of rights of the persons that received income from work if compared to the persons who did not receive such income.

  1. In the constitutional justice case at issue the Constitutional Court will investigate the compliance of the second paragraph (wording of 16 January 2008) of Item 41 of the Regulations with the Constitution in the same aspect as the compliance of Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law with the Constitution, i.e. whether the second paragraph (wording of 16 January 2008) of Item 41 of the Regulations, insofar as it established that the maternity benefit shall not be awarded in cases when, during the pregnancy and childbirth leave, the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.
  2. Item 41 (wording of 8 April 2009) of the Regulations prescribed:

“The maternity benefit shall be paid for the period coinciding with the period of annual leave under procedure established in Items 39 and 40 of these Regulations. During the period of unpaid leave the maternity benefit shall not be paid.

The persons specified in Items 3.1–3.3 of these Regulations shall be paid the maternity benefit if they do not have the income on which the sickness and maternity social insurance contributions are calculated. The persons specified in Items 3.2 and 3.3 of these Regulations shall be deemed as those having the insured income for the whole month if the state social insurance contributions have been paid from the sum of income which is not less than the MMS; otherwise, the period of the insured income of these persons shall be deemed as proportionately shorter. The insured income shall be established under Article 10 of the Republic of Lithuania Law on Amending and Supplementing Articles 3, 4, 5, 6, 8, 9, 16, 181, 19 of the Law on Sickness and Maternity Social Insurance.”

Item 41 (wording of 8 December 2009) of the Regulations as approved by the Government resolution is designed for implementation of Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law which, as mentioned, inter alia established that the persons insured by social insurance of sickness and maternity are awarded the maternity benefit if the woman does not have the income on which the sickness and maternity social insurance contributions are calculated. From the aspect investigated in the constitutional justice case at issue, the legal regulation established in the second paragraph (wording of 16 January 2008) of Item 41 of the Regulations was analogous to the one established in Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law.

After it has been held in this ruling of the Constitutional Court that Item 1 of Paragraph 5 (wording of 18 December 2008) of Article 5 of the Law, insofar as it established that the maternity benefit shall not be awarded if during the pregnancy and childbirth leave the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was in conflict with Paragraph 2 of Article 39 of the Constitution, on the grounds of the same arguments it needs to be held that also the second paragraph (wording of 8 April 2009) of Item 41 of the Regulations, insofar as it established that the maternity benefit shall not be awarded in cases when, during the pregnancy and childbirth leave, the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was in conflict with Paragraph 2 of Article 39 of the Constitution.

  1. Having held this, in the constitutional justice case at issue the Constitutional Court will not further investigate whether the second paragraph (wording of 8 April 2009) of Item 41 of the Regulations was not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law.
  2. The second paragraph of Item 41 of the Regulations has been amended inter alia by the following acts: Government Resolution No. 956 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” of 26 August 2009 (it came into force on 9 September 2009), Government Resolution No. 1778 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” of 23 December 2009 (it came into force on 1 January 2010), Government Resolution No. 1293 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” of 8 September 2010 (it came into force on 12 September 2010).

6.1. The second paragraph (wording of 26 August 2009) of Item 41 of the Regulations was set forth as follows:

“The persons specified in Items 3.1–3.3 of these Regulations shall be paid the maternity benefit if they, at the time of reception of this benefit, do not have the income on which the sickness and maternity social insurance contributions are calculated. The persons specified in Items 3.1–3.3 of these Regulations shall be deemed as those having the insured income for the whole month if the state social insurance contributions have been paid from the sum of income which is not less than the MMS; otherwise, the period of the insured income of these persons shall be deemed as proportionately shorter. The persons specified in Item 3.1 of these Regulations, save farmers and their partners, shall be deemed as the ones who do not have the insured income in the period when they declared non-conduct of activities or end of activities under procedure established by the State Tax Inspectorate under the Ministry of Finance. The farmers and their partners who have become entitled to receive the benefit shall be paid the benefit without taking account of the income on which the sickness and maternity social insurance contributions are calculated.”

6.2. The second paragraph (wording of 23 December 2009) of Item 41 of the Regulations was set forth as follows:

“The persons specified in Items 3.1–3.3 of these Regulations shall be paid the maternity benefit if they, at the time of reception of this benefit, do not have the income on which the sickness and maternity social insurance contributions are calculated. The persons specified in Items 3.1–3.3 of these Regulations shall be deemed as those having the insured income for the whole month if the state social insurance contributions have been paid from the sum of income which is not less than the MMS; otherwise, the period of the insured income of these persons shall be deemed as proportionately shorter. In order to establish the said period, the insured income shall be calculated under Article 10 of the Republic of Lithuania Law on Amending and Supplementing Articles 3, 4, 5, 6, 8, 9, 16, 181, 19 of the Law on Sickness and Maternity Social Insurance. The farmers and their partners who have become entitled to receive the benefit shall be paid the benefit without taking account of the income on which the sickness and maternity social insurance contributions are calculated.”

6.3. The second paragraph (wording of 8 September 2010) of Item 41 of the Regulations was set forth as follows:

“The insured person, who has taken a childcare and pregnancy leave, shall be paid the maternity benefit if this person, at the time of reception of this benefit, does not have the income on which the sickness and maternity social insurance contributions are calculated. The persons who receive income only from sport activities or those of a performer, under an author’s agreement or from individual activity, shall be deemed as those having the insured income for the whole month if the state social insurance contributions have been paid from the sum of income which is not less than the MMS; otherwise, the period of the insured income of these persons shall be deemed as proportionately shorter. In order to establish the said period, the insured income shall be calculated under Article 10 of the Republic of Lithuania Law on Amending and Supplementing Articles 3, 4, 5, 6, 8, 9, 16, 181, 19 of the Law on Sickness and Maternity Social Insurance. The farmers and their partners who have become entitled to receive the benefit shall be paid the benefit without taking account of the income on which the sickness and maternity social insurance contributions are calculated.”

6.4. Upon comparing the second paragraph (wordings of 26 August 2009, 23 December 2009, 8 September 2010) of Item 41 of the Regulations with the second paragraph (wording of 8 April 2009) of Item 41 of the Regulations, it needs to be noted that the legal regulation established in the second paragraph (wording of 8 April 2009) of Item 41 of the Regulations was amended, however, in the aspect investigated in the constitutional justice case at issue it has not been changed.

After it has been held in this ruling of the Constitutional Court that the second paragraph (wording of 8 April 2009) of Item 41 of the Regulations, insofar as it established that the maternity benefit shall not be awarded in cases when, during the pregnancy and childbirth leave, the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was in conflict with Paragraph 2 of Article 39 of the Constitution, on the grounds of the same arguments it needs to be held that also the second paragraph (wordings of 26 August 2009, 23 December 2009, 8 September 2010) of Item 41 of the Regulations correspondingly to the same extent was in conflict with Paragraph 2 of Article 39 of the Constitution.

  1. On 13 April 2011, the Government adopted Resolution No. 434 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” (it came into force on 17 April 2011), by Item 3 whereof it amended the second paragraph (wording of 8 September 2010) of Item 41 of the Regulations and set it forth as follows:

“When the insured person has the insured income during the period of reception of the maternity benefit, and if this income is less than the maternity benefit (the sum of these benefits), this person is paid the difference between the calculated benefit (the sum total of benefits) and the insured income held by the said person in the corresponding month. The insured income shall not include the income received under an author’s agreement for the work carried out before the first day of the pregnancy and childbirth leave, also the maternity (paternity) benefits for the birth of another child, which are calculated under procedure established by the Law. The persons who receive income only from sport activities or those of a performer, under an author’s agreement or from individual activity, shall be deemed as those having the insured income for the whole month if the state social insurance contributions have been paid from the sum of income which is not less than the MMS; otherwise, the period of the insured income of these persons shall be deemed as proportionately shorter. In order to establish the said period, the insured income shall be calculated under Article 10 of the Republic of Lithuania Law on Amending and Supplementing Articles 3, 4, 5, 6, 8, 9, 16, 181, 19 of the Law on Sickness and Maternity Social Insurance. The farmers and their partners who have become entitled to receive the benefit shall be paid the benefit without taking account of the income on which the sickness and maternity social insurance contributions are calculated.”

Item 41 (wording of 13 April 2011) of the Regulations as approved by the Government resolution is designed for implementation of Paragraph 2 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 18 of the Law which, as mentioned, provides that if during the period of payment of the maternity benefit the insured person has the income on which sickness and maternity social insurance contributions are calculated and the amount thereof is less than the maternity benefit, the said person shall be paid the difference between this benefit and the insured income received by the person in the appropriate month; when the maternity benefit is being paid, the insured income shall not include the income received under an author’s agreement for the work carried out before the first day of the pregnancy and childbirth leave; the maternity benefit or part thereof shall be calculated and paid in accordance with the procedure established by the Regulations on Social Insurance Benefits of Sickness and Maternity approved by the Government. From the aspect investigated in the constitutional justice case at issue, the legal regulation established in the second paragraph (wording of 13 April 2011) of Item 41 of the Regulations is analogous to the one established in Paragraph 2 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 18 of the Law.

After it has been held in this ruling of the Constitutional Court that Paragraph 2 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 18 of the Law, insofar as it is not established therein that, when the maternity benefit is being paid, all income received during the pregnancy and childbirth leave, from work activities performed not during the said leave, is not included into the insured income, is in conflict with Paragraph 2 of Article 39 of the Constitution, on the grounds of the same arguments it needs to be held that the second paragraph (wording of 13 April 2011) of Item 41 of the Regulations correspondingly to the same extent was in conflict with Paragraph 2 of Article 39 of the Constitution.

  1. Taking account of the arguments set forth, one is to draw the following conclusions:

– the second paragraph (wordings of 8 April 2009, 26 August 2009, 23 December 2009, 8 September 2010) of Item 41 of the Regulations, insofar as it established that the maternity benefit shall not be awarded in cases when, during the pregnancy and childbirth leave, the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was in conflict with Paragraph 2 of Article 39 of the Constitution;

– the second paragraph (wording of 13 April 2011) of Item 41 of the Regulations, insofar as it is not established therein that, when the maternity benefit is being paid, all income received during the pregnancy and childbirth leave, from work activities performed not during the said leave, is not included into the insured income, is in conflict with Paragraph 2 of Article 39 of the Constitution.

  1. It has been mentioned that the Vilnius Regional Administrative Court, a petitioner (petition No. 1B-16/2008), requests investigation inter alia into the compliance of Item 481 (wording of 16 January 2008) of the Regulations with Article 29 of the Constitution, with the provision of Paragraph 1 of Article 48 thereof that each human being shall have the right to receive fair pay for work and social security in the event of unemployment, and Article 52 thereof.

The petitioner, while doubting the compliance of Item 481 (wording of 16 January 2008) of the Regulations with Paragraph 1 of Article 29 of the Constitution, substantiates its doubt by the same arguments as regards the compliance of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law with Paragraph 1 of Article 29 of the Constitution, i.e. by the fact that, in its opinion, a citizen of the Republic of Lithuania, who does not have the insured income in Lithuania, but who works in another state, an international organisation, an institution of the European Union, etc., and who receives a certain income from which no contributions are paid to the State Social Insurance Fund, has the unlimited right to receive a maternity (paternity) benefit irrespective of the income he receives, while a citizen of the Republic of Lithuania, who has the insured income in the Republic of Lithuania and who pays contributions to the State Social Insurance Fund, does not have this right.

The petitioner, while doubting the compliance of Item 481 (wording of 16 January 2008) of the Regulations with the provision of Paragraph 1 of Article 48 of the Constitution and Article 52 thereof, substantiates its doubt by the same arguments as regards the compliance of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law with the provision of Paragraph 1 of Article 48 of the Constitution and Article 52 thereof, i.e. by the fact that, in its opinion, the disputed legal regulation limits the right to receive the maternity (paternity) benefit while taking account of the fact whether the person has the insured income.

  1. It is clear from the petition of the Vilnius Regional Administrative Court, a petitioner, that it requests to investigate the compliance of not entire Item 481 (wording of 16 January 2008) of the Regulations, but only that of the first paragraph thereof with Article 29 of the Constitution, with the provision of Paragraph 1 of Article 48 thereof that each human being shall have the right to receive fair pay for work and social security in the event of unemployment, and Article 52 thereof.
  2. Item 481 (wording of 16 January 2008) of the Regulations prescribed:

“When the insured person, who has been or is on childcare leave, has the insured income whose amount is less than the maternity (paternity) benefit, this person is paid the difference between the calculated benefit and the insured income held by the said person in the corresponding month. In this case the calculated maternity, maternity (paternity) and paternity benefits are not included in the insured income.

The aforesaid difference is not paid if the other parent is awarded a leave for the care of the same child and this parent begins to receive the maternity (paternity) benefit.”

Item 481 (wording of 16 January 2008) of the Regulations as approved by the Government resolution was designed for implementation of Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law in which, as mentioned, it was established that if the insured person who has been or is on childcare leave possesses the insured income the amount whereof is less than the maternity (paternity) benefit, he shall be paid the difference between this benefit and the insured amount held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity established by the Government. From the aspect investigated in the constitutional justice case at issue, the legal regulation established in the first paragraph (wording of 16 January 2008) of Item 481 of the Regulations was analogous to the one established in Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law.

After it has been held in this ruling of the Constitutional Court that Paragraph 4 (wording of 4 December 2007) of Article 21 of the Law, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution, on the grounds of the same arguments it needs to be held that the first paragraph (wording of 16 January 2008) of Item 481 of the Regulations correspondingly was also in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law.

  1. Having held this, in the constitutional justice case at issue the Constitutional Court will not investigate whether the first paragraph (wording of 16 January 2008) of Item 481 of the Regulations was not in conflict with Articles 48 and 52 of the Constitution.
  2. On 27 August 2008, the Government adopted Resolution No. 839 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” (it came into force on 12 September 2008), by Item 1.7 whereof it amended inter alia the first paragraph (wording of 16 January 2008) of Item 481 of the Regulations and set it forth as follows:

“When the insured person who has been or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit (when two benefits are paid—less than the sum total of these benefits), he shall be paid the difference between the calculated benefit (the sum total of these benefits) and the insured income held by him in the appropriate month. In this case the calculated maternity, maternity (paternity) and paternity benefits are not included in the insured income.”

Item 481 (wording of 27 August 2008) of the Regulations as approved by the Government resolution was designed for implementation of Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law in which, as mentioned, it was established that if the insured person who has been or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he is paid the difference between this benefit (the sum total of these benefits) and the insured amount held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity established by the Government. From the aspect investigated in the constitutional justice case at issue, the legal regulation established in the first paragraph (wording of 27 August 2008) of Item 481 of the Regulations was analogous to the one established in Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law.

It has been held in this ruling of the Constitutional Court that Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution.

Having held that, referring to the same arguments, it needs also to be held that the first paragraph (wording of 27 August 2008) of Item 481 of the Regulations, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution.

  1. The first paragraph of Item 481 of the Regulations has been amended inter alia by the following acts: Government Resolution No. 258 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” of 8 April 2009 (it came into force on 17 April 2009), Government Resolution No. 956 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” of 26 August 2009 (it came into force on 9 September 2009), Government Resolution No. 1778 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” of 23 December 2009 (it came into force on 1 January 2010), Government Resolution No. 1293 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” of 8 September 2010 (it came into force on 12 September 2010).

14.1. The first paragraph (wording of 8 April 2009) of Item 481 of the Regulations was set forth as follows:

“When the insured person who has been or is on childcare leave has the insured income which is less than the maternity (paternity) benefit (when two benefits are paid—less than the sum total of these benefits), he shall be paid the difference between the calculated benefit (the sum total of these benefits) and the insured income held by him in the appropriate month. In this case the calculated maternity, paternity and maternity (paternity) benefits are not included in the insured income. When the benefits are paid to the persons specified in Items 3.2 and 3.3 of these Regulations, it is deemed that they had the insured income for the whole month if the state social insurance contributions have been paid from the sum of income which is not less than the MMS; otherwise, the period of the insured income of these persons shall be deemed as proportionately shorter. The insured income shall be established under Article 10 of the Republic of Lithuania Law on Amending and Supplementing Articles 3, 4, 5, 6, 8, 9, 16, 181, 19 of the Law on Sickness and Maternity Social Insurance.”

14.2. The first paragraph (wording of 26 August 2009) of Item 481 of the Regulations was set forth as follows:

“When the insured person who has been or is on childcare leave has the insured income which is less than the maternity (paternity) benefit (when two benefits are paid—less than the sum total of these benefits), he shall be paid the difference between the calculated benefit (the sum total of these benefits) and the insured income held by him in the appropriate month. In this case the calculated maternity, paternity and maternity (paternity) benefits are not included in the insured income. When the benefits are paid to the persons specified in Items 3.1–3.3 of these Regulations, it is deemed that they had the insured income for the whole month if the state social insurance contributions have been paid from the sum of income which is not less than the MMS; otherwise, the period of the insured income of these persons shall be deemed as proportionately shorter. The insured income shall be established under Article 10 of the Republic of Lithuania Law on Amending and Supplementing Articles 3, 4, 5, 6, 8, 9, 16, 181, 19 of the Law on Sickness and Maternity Social Insurance. The persons specified in Item 3.1 of these Regulations, save farmers and their partners, shall be deemed as the ones who do not have the insured income in the period when they declared non-conduct of activities or end of activities under procedure established by the State Tax Inspectorate under the Ministry of Finance. The farmers and their partners who have become entitled to receive the benefit shall be paid the benefit without taking account of the income on which the sickness and maternity social insurance contributions are calculated.”

14.3. The first paragraph (wording of 23 December 2009) of Item 481 of the Regulations was set forth as follows:

“When the insured person who has been or is on childcare leave has the insured income which is less than the maternity (paternity) benefit (when two benefits are paid—less than the sum total of these benefits), he shall be paid the difference between the calculated benefit (the sum total of these benefits) and the insured income held by him in the appropriate month. In this case the calculated maternity, paternity and maternity (paternity) benefits are not included in the insured income. When the benefits are paid to the persons specified in Items 3.1–3.3 of these Regulations, it is deemed that they had the insured income for the whole month if the state social insurance contributions have been paid from the sum of income which is not less than the MMS; otherwise, the period of the insured income of these persons shall be deemed as proportionately shorter. The insured income shall be established under Article 10 of the Republic of Lithuania Law on Amending and Supplementing Articles 3, 4, 5, 6, 8, 9, 16, 181, 19 of the Law on Sickness and Maternity Social Insurance. The farmers and their partners who have become entitled to receive the benefit shall be paid the benefit without taking account of the income on which the sickness and maternity social insurance contributions are calculated.”

14.4. The first paragraph (wording of 8 September 2010) of Item 481 of the Regulations was set forth as follows:

“When the insured person who has been or is on childcare leave has the insured income which is less than the maternity (paternity) benefit (when two benefits are paid—less than the sum total of these benefits), he shall be paid the difference between the calculated benefit (the sum total of these benefits) and the insured income held by him in the appropriate month. In this case the calculated maternity, paternity and maternity (paternity) benefits are not included in the insured income. When the benefits are paid to the persons who receive income only from sport activities or those of a performer, under an author’s agreement or from individual activity, it is deemed that they had the insured income for the whole month if the state social insurance contributions have been paid from the sum of income which is not less than the MMS; otherwise, the period of the insured income of these persons shall be deemed as proportionately shorter. The insured income shall be established under Article 10 of the Republic of Lithuania Law on Amending and Supplementing Articles 3, 4, 5, 6, 8, 9, 16, 181, 19 of the Law on Sickness and Maternity Social Insurance. The farmers and their partners who have become entitled to receive the benefit shall be paid the benefit without taking account of the income on which the sickness and maternity social insurance contributions are calculated.”

14.5. Upon comparing the first paragraph (wordings of 8 April 2009, 26 August 2009, 23 December 2009 and 8 September 2010) of Item 481 of the Regulations with the first paragraph (wording of 27 August 2008) of Item 481 of the Regulations, it needs to be noted that the legal regulation established in the first paragraph (wording of 27 August 2008) of Item 481 of the Regulations was amended, however, in the aspect investigated in the constitutional justice case at issue it has not been changed.

Having held in this ruling of the Constitutional Court that the first paragraph (wording of 27 August 2008) of Item 481 of the Regulations, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution, on the grounds of the same arguments it needs to be held that the first paragraph (wordings of 8 April 2009, 26 August 2009, 23 December 2009 and 8 September 2010) of Item 481 of the Regulations correspondingly to the same extent was also in conflict with Article 29 of the Constitution, Paragraph 2 of Article 39 thereof and the constitutional principle of a state under the rule of law.

  1. On 13 April 2011, the Government adopted Resolution No. 434 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” (it came into force on 17 April 2011), by Item 8 whereof it amended the first paragraph (wording of 8 September 2010) of Item 481 of the Regulations and set it forth as follows:

“When the insured person who has been or is on childcare leave has the income which is less than the maternity (paternity) benefit (when two benefits are paid—less than the sum total of these benefits), he shall be paid the difference between the calculated benefit (the sum total of these benefits) and the insured income held by him in the appropriate month. The insured income shall not include the income received under an author’s agreement for the work carried out before the first day of the childcare leave, also the maternity, maternity (paternity) benefits for the birth of another child, which are calculated under procedure established by the Law. The persons who receive income only from sport activities or those of a performer, under an author’s agreement or from individual activity, shall be deemed as those having the insured income for the whole month if the state social insurance contributions have been paid from the sum of income which is not less than the MMS; otherwise, the period of the insured income of these persons shall be deemed as proportionately shorter. The insured income shall be established under Article 10 of the Republic of Lithuania Law on Amending and Supplementing Articles 3, 4, 5, 6, 8, 9, 16, 181, 19 of the Law on Sickness and Maternity Social Insurance. The farmers and their partners who have become entitled to receive the benefit shall be paid the benefit without taking account of the income on which the sickness and maternity social insurance contributions are calculated.”

Item 481 (wording of 13 April 2011) of the Regulations as approved by the Government resolution was designed for implementation of Paragraph 4 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 21 of the Law in which, as mentioned, it was established that if the insured person who has been or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he is paid the difference between this benefit (the sum total of these benefits) and the insured amount held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity established by the Government; when the maternity (paternity) benefit is being paid, the income received under an author’s agreement for the work done until the first day of the childcare leave shall not be included into the insured income. From the aspects investigated in the constitutional justice case at issue, the legal regulation established in the first paragraph (wording of 13 April 2011) of Item 481 of the Regulations was analogous to the one established in Paragraph 4 (wording of 22 December 2010, which came into force on 1 January 2011) of Article 21 of the Law.

Having held in this ruling of the Constitutional Court that Paragraph 4 (wording of 22 December 2010 which came into force on 1 January 2011) of Article 21 of the Law, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it did not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, was in conflict with Paragraph 1 of Article 39 of the Constitution, on the grounds of the same arguments it needs to be held that the first paragraph (wording of 13 April 2011) of Item 481 of the Regulations correspondingly to the same extent was also in conflict with Article 29 of the Constitution, Paragraph 2 of Article 39 thereof and the constitutional principle of a state under the rule of law.

  1. On 29 June 2011, the Government adopted Resolution No. 765 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” (it came into force on 1 July 2011), by Item 1.9 whereof it amended the first paragraph (wording of 13 April 2011) of Item 481 of the Regulations and set it forth as follows:

“When the insured person who has been or is on childcare leave, until the child reaches the age of one year, has the insured income which is less than the maternity (paternity) benefit (when two benefits are paid—less than the sum total of these benefits), he shall be paid the difference between the calculated benefit (the sum total of these benefits) and the insured income held by him in the appropriate month. The insured income shall not include the income received under an author’s agreement for the work carried out before the first day of the childcare leave, also the maternity, maternity (paternity) benefits for the birth of another child, which are calculated under procedure established by the Law. When the benefits are paid to the persons who receive income only from sport activities or those of a performer, under an author’s agreement or from individual activity, it is deemed that they had the insured income for the whole month if the state social insurance contributions have been paid from the sum of income which is not less than the MMS; otherwise, the period of the insured income of these persons shall be deemed as proportionately shorter. The insured income shall be established under Article 10 of the Republic of Lithuania Law on Amending and Supplementing Articles 3, 4, 5, 6, 8, 9, 16, 181, 19 of the Law on Sickness and Maternity Social Insurance. The farmers and their partners who have become entitled to receive the benefit shall be paid the benefit without taking account of the income on which the sickness and maternity social insurance contributions are calculated.”

Item 481 (wording of 29 June 2011) of the Regulations as approved by the Government resolution was designed for implementation of Paragraph 4 (wording of 22 December 2010, which came into force on 1 July 2011) of Article 21 of the Law in which, as mentioned, it was established that if the insured person who has been or is on childcare leave, until the child reaches the age of one year, has the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he is paid the difference between this benefit (the sum total of these benefits) and the insured amount held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity established by the Government; when the maternity (paternity) benefit is being paid, the income received under an author’s agreement for the work done until the first day of the childcare leave shall not be included into the insured income. From the aspects investigated in the constitutional justice case at issue, the legal regulation established in the first paragraph (wording of 29 June 2011) of Item 481 of the Regulations was analogous to the one established in Paragraph 4 (wording of 22 December 2010, which came into force on 1 July 2011) of Article 21 of the Law.

Having held in this ruling of the Constitutional Court that Paragraph 4 (wording of 22 December 2010 which came into force on 1 July 2011) of Article 21 of the Law, insofar as it does not establish that if the insured person who has been or is on childcare leave, until the child reaches the age of one year, and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, is in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it does not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, is in conflict with Paragraph 1 of Article 39 of the Constitution, on the grounds of the same arguments it needs to be held that the first paragraph (wording of 29 June 2011) of Item 481 of the Regulations correspondingly to the same extent is also in conflict with Article 29 of the Constitution, Paragraph 2 of Article 39 thereof and the constitutional principle of a state under the rule of law.

  1. Taking account of the arguments set forth, one is to draw the following conclusions:

– the first paragraph (wording of 16 January 2008) of Item 481 of the Regulations insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution;

– the first paragraph (wordings of 27 August 2008, 8 April 2009, 26 August 2009, 23 December 2009 and 8 September 2010) of Item 481 of the Regulations, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution;

– the first paragraph (wording of 13 April 2011) of Item 481 of the Regulations insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it did not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, was in conflict with Paragraph 1 of Article 39 of the Constitution;

– the first paragraph (wording of 29 June 2011) of Item 481 of the Regulations insofar as it does not establish that if the insured person who has been or is on childcare leave, until the child reaches the age of one year, and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, is in conflict with Article 29 of the Constitution, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it does not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, is in conflict with Paragraph 1 of Article 39 of the Constitution.

  1. It has been mentioned that the Kaunas Regional Administrative Court, a petitioner, requests investigation into the compliance of the second paragraph (wording of 16 January 2008) of Item 49 of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001 with Articles 29, 38 and 52 of the Constitution and the constitutional principle of a state under the rule of law (petition No. 1B-27/2011)..

The doubts of the petitioner regarding the compliance of the second paragraph (wording of 16 January 2008) of Item 49 of the Regulations with the Constitution are substantiated by the fact that, in its opinion, this provision differentiates the persons working under an employment contract and those working in the state service in the aspect that it limits the payment of the maternity (paternity) benefit to the state servants to whom the severance pay upon dismissal from office is paid after one month of the day of his dismissal.

  1. Item 49 (wording of 8 April 2009) of the Regulations, the second paragraph (wording of 16 January 2008) whereof is disputed by the petitioner, inter alia prescribed:

“Should one of the parents (adopted parents) or a guardian, who has taken a childcare leave under procedure established by laws and is receiving a maternity (paternity) benefit, be dismissed from work due to liquidation of the enterprise, establishment or organisation, or due to institution of a bankruptcy case, also due to the expiry of the term of a termed employment contract or expiry of the term or the term of powers of the persons appointed to office, who are specified in the Republic of Lithuania Law on the State Service, the Republic of Lithuania Law on the Pay for Work of State Politicians, Judges and State Officials and the Republic of Lithuania Law on Remuneration of Judges, he shall be paid the awarded maternity (paternity) benefit for no longer than till the moment of finding an employment, save the case provided for in Item 481 of these Regulations.

In cases when the person specified in the first paragraph of this Item receives, on the day he is dismissed from work, a severance pay or compensation for unused annual leave, the payment of the awarded maternity (paternity) benefit shall be continued regardless of this insured income. <...>”

While construing the legal regulation established in the second paragraph (wording of 16 January 2008) of Item 49 (wording of 8 April 2009) of the Regulations in conjunction with the one established in the first paragraph of Item 49 (wording of 8 April 2009) of the Regulations it needs to be noted that, under the legal regulation established in Item 49 (wording of 8 April 2009) of the Regulations, the ground for payment of the maternity (paternity) benefit was related with the severance pay received by the insured person at the time of the childcare leave: provided that the severance pay was paid not on the day of his dismissal from work, but later, such a person, under the established legal regulation, was deemed as the one who has received the insured income and he was to be paid the difference between the calculated maternity (paternity) benefit (the sum of these benefits) and the severance pay that he had received in the corresponding month.

Consequently, the ground for payment of the maternity (paternity) benefit was also related with the insured income (severance pay) received by the insured person at the time of the childcare leave and this income was not related with work or service at the time of this leave.

  1. It needs to be noted that Item 49 (wording of 8 April 2009) of the Regulations as approved by the Government resolution was designed for implementation of Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law in which, as mentioned, it was established that if the insured person who has been or is on childcare leave has the insured income the amount whereof is less than the maternity (paternity) benefit (the sum total of these benefits), he is paid the difference between this benefit (the sum total of these benefits) and the insured amount held by him in the appropriate month according to the procedure established in the Regulations of Social Insurance Benefits of Sickness and Maternity established by the Government.
  2. Having held in this ruling of the Constitutional Court that Paragraph 4 (wording of 17 June 2008) of Article 21 of the Law insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution, on the grounds of the same arguments one is also to hold that the second paragraph (wording of 16 January 2008) of Item 49 (wording of 8 April 2009) of the Regulations insofar as it did not establish that in cases when the person specified in the first paragraph of this item was paid a severance pay not on the day of his dismissal from work, but some other time during the childcare leave, one was not to take account of this insured income in the continuation of the payment of the awarded maternity (paternity) benefit, was in conflict with Paragraph 1 of Article 39 of the Constitution.
  3. Taking account of the arguments set forth, one is to draw a conclusion that the second paragraph (wording of 16 January 2008) of Item 49 (wording of 8 April 2009) of the Regulations insofar as it did not establish that in cases when the person specified in the first paragraph of this item was paid a severance pay not on the day of his dismissal from work, but some other time during the childcare leave, one was not to take account of this insured income in the continuation of the payment of the awarded maternity (paternity) benefit, was in conflict with Paragraph 1 of Article 39 of the Constitution.
  4. Having held this, in the constitutional justice case at issue the Constitutional Court will not further investigate whether the second paragraph (wording of 16 January 2008) of Item 49 of the Regulations (wording of 8 April 2009) was not in conflict with Articles 29, 38 and 52 of the Constitution and the constitutional principle of a state under the rule of law.
  5. On 29 June 2011, the Government adopted Resolution No. 765 “On Amending Government of the Republic of Lithuania Resolution No. 86 ‘On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity’ of 25 January 2001” which came into force on 1 July 2011. Item 1.10 of the said resolution amended Item 49 (wording of 8 April 2009) (the second paragraph (wording of 16 January 2008) whereof is disputed in the constitutional justice case at issue) of the Regulations and set it forth as follows:

“Should one of the parents (adopted parents) or a guardian, who has taken a childcare leave under procedure established by laws and is receiving a maternity (paternity) benefit, be dismissed from work due to liquidation or bankruptcy of the enterprise, establishment or organisation, also due to the expiry of the employment contract or expiry of the term or the term of powers of the persons appointed to office, who are specified in the Republic of Lithuania Law on the State Service, the Republic of Lithuania Law on the Pay for Work of State Politicians, Judges and State Officials and the Republic of Lithuania Law on Remuneration of Judges, he shall be paid the awarded maternity (paternity) benefit under procedure established in Items 44, 45, 46, 47 and 481 of these Regulations.

In cases when the person specified in the first paragraph of this Item, who is being dismissed from work, receives a severance pay or compensation for unused annual leave, the payment of the awarded maternity (paternity) benefit shall be continued regardless of this insured income.

In case of dismissal from work of one of the parents (adopted parents) or a guardian, who has the insurance period specified in Item 43.3 of these Regulations due to liquidation or bankruptcy of the enterprise, establishment or organisation, also due to the expiry of the employment contract or expiry of the term or the term of powers of the persons appointed to office, who are specified in the Republic of Lithuania Law on the State Service, the Republic of Lithuania Law on the Pay for Work of State Politicians, Judges and State Officials and the Republic of Lithuania Law on Remuneration of Judges, and due to this he did not receive a childcare leave, he shall be paid a maternity (paternity) benefit under procedure established in Items 44, 45, 46, 47 and 481 of these Regulations.

If one of the parents (adopted parents) or a guardian, who has the insurance period specified in Item 43.3 of these Regulations, has not gained the right to receive a maternity (paternity) benefit due to the fact that till 30 June 2011 (including that day) he was dismissed from work upon expiry of an employment contract, he shall be paid a maternity (paternity) benefit under procedure established in Items 44, 45, 46, 47 and 481 of these Regulations.

The maternity (paternity) benefit is paid under procedure established in Paragraphs 6 and 7 of Article 19 of the Law provided that the right to receive it emerged at the time of the leave for care of the child that had been born prior to that.”

Having compared the legal regulation established in the second paragraph of Item 49 (wording of 29 June 2011) of the Regulations with the one established in the second paragraph (wording of 16 January 2008) of Item 49 (wording of 8 April 2009) of the Regulations it needs to be noted that, under the second paragraph of Item 49 (wording of 29 June 2011) of the Regulations, both in the cases when the person specified in the first paragraph is paid a severance pay on the day of his dismissal from work at the time of childcare leave and in the cases when the person specified in the first paragraph is paid a severance pay not on the day of his dismissal from work, but at some other time of childcare leave, the payment of the awarded maternity (paternity) benefit is continued regardless of this insured income.

Thus, the disputed legal regulation established in the second paragraph (wording of 16 January 2008) of Item 49 (wording of 8 April 2009) of the Regulations Law in the aspect considered in the constitutional justice case at issue was amended in essence, therefore, the compliance of the second paragraph of Item 49 (wording of 29 June 2011) of the Regulations with the Constitution is not a matter of investigation in the constitutional justice case at issue.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, and 56 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania has passed the following

ruling:

  1. To recognise that Item 1 of Paragraph 5 (wording of 18 December 2008; Official Gazette Valstybės žinios, 2008, No. 149-5999) of Article 5 of the Republic of Lithuania Law on Sickness and Maternity Social Insurance, insofar as it established that the maternity benefit shall not be awarded if during the pregnancy and childbirth leave the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was in conflict with Paragraph 2 of Article 39 of the Constitution of the Republic of Lithuania.
  2. To recognise that Item 2 of Paragraph 5 (wording of 18 December 2008; Official Gazette Valstybės žinios, 2008, No. 149-5999) of Article 5 of the Republic of Lithuania Law on Sickness and Maternity Social Insurance, insofar as it established that the paternity benefit shall not be awarded if during the paternity leave the child’s father has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was in conflict with Paragraph 2 of Article 39 of the Constitution of the Republic of Lithuania.
  3. To recognise that Paragraph 2 (wording of 22 December 2010; Official Gazette Valstybės žinios, 2010, No. 157-7976) of Article 18 of the Republic of Lithuania Law on Sickness and Maternity Social Insurance, insofar as it is not established therein that, when the maternity benefit is being paid, all income received during the pregnancy and childbirth leave, from work activities performed not during the said leave, is not included into the insured income, is in conflict with Paragraph 2 of Article 39 of the Constitution of the Republic of Lithuania.
  4. To recognise that Paragraph 2 of Article 183 (wording of 22 December 2010; Official Gazette Valstybės žinios, 2010, No. 157-7976) of the Republic of Lithuania Law on Sickness and Maternity Social Insurance, insofar as it is not established therein that, when the paternity benefit is being paid, all income received during the paternity leave, from work activities performed not during the said leave, is not included into the insured income, is in conflict with Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.
  5. To recognise that Paragraph 4 (wording of 4 December 2007; Official Gazette Valstybės žinios, 2007, No. 132-5346) of Article 21 of the Republic of Lithuania Law on Sickness and Maternity Social Insurance, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.
  6. To recognise that Paragraph 4 (wording of 17 June 2008; Official Gazette Valstybės žinios, 2008, No. 74-2864) of Article 21 of the Republic of Lithuania Law on Sickness and Maternity Social Insurance, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.
  7. To recognise that Paragraph 4 (wording of 22 December 2010; Official Gazette Valstybės žinios, 2010, No. 157-7976) of Article 21 of the Republic of Lithuania Law on Sickness and Maternity Social Insurance, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it did not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, was in conflict with Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.
  8. To recognise that Paragraph 4 (wording of 22 December 2010; Official Gazette Valstybės žinios, 2010, No. 157-7977) of Article 21 of the Republic of Lithuania Law on Sickness and Maternity Social Insurance, insofar as it does not establish that if the insured person who has been or is on childcare leave, until the child reaches the age of one year, and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, is in conflict with Article 29 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it does not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, is in conflict with Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.
  9. To recognise that Item 4 of Paragraph 1 of Article 15 of the Statute of Service in the Customs of the Republic of Lithuania (wording of 19 June 2003; Official Gazette Valstybės žinios, 2003, No. 64-2881), insofar as it established a prohibition for a customs official to hold an additional job without assessing whether such a job (save an additional job in the state service and a job in political parties and political organisations) would create preconditions for a conflict between public and private interests in the service in customs, whether it would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official, as well as insofar as it established that a customs official would be allowed to hold the job concretely specified in this item without assessing whether such an additional job would not create preconditions for a conflict between public and private interests in the service in customs, whether it would create preconditions to use the service in customs for one’s own interests, to engage in activities discrediting the authority of customs or its official, to hinder the customs official to properly perform his duties, whether the customs official would not hold a job in the enterprises, establishments and organisations with regard to which he enjoys authoritative empowerments or whose activity is under his control and supervision, or regarding which he adopts some other decisions, and whether there are not any other circumstances due to which the additional job held by the customs official would be incompatible with discharging the functions of customs and/or with the status of the customs official, was in conflict with the provision “Citizens shall have <…> the right to enter on equal terms in the State service of the Republic of Lithuania” of Paragraph 1 of Article 33, the provision “Each human being may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and with the constitutional principle of a state under the rule of law.
  10. To recognise that the second paragraph (wordings of 8 April 2009, 26 August 2009, 23 December 2009, and 8 September 2010; Official Gazette Valstybės žinios, 2009, No. 42-1620; Official Gazette Valstybės žinios, 2009, No. 107-4475; Official Gazette Valstybės žinios, 2009, No. 158-7164; Official Gazette Valstybės žinios, 2010, No. 107-5535) of Item 41 of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government of the Republic of Lithuania Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001, insofar as it established that the maternity benefit shall not be awarded in cases when, during the pregnancy and childbirth leave, the woman has income (on which the sickness and maternity social insurance contributions are calculated) from work activities performed not during this leave, was in conflict with Paragraph 2 of Article 39 of the Constitution of the Republic of Lithuania.
  11. To recognise that the second paragraph (wording of 13 April 2011; Official Gazette Valstybės žinios, 2011, No. 46-2180) of Item 41 of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government of the Republic of Lithuania Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001, insofar as it is not established therein that, when the maternity benefit is being paid, all income received during the pregnancy and childbirth leave, from work activities performed not during the said leave, is not included into the insured income, is in conflict with Paragraph 2 of Article 39 of the Constitution of the Republic of Lithuania.
  12. To recognise that the first paragraph (wording of 16 January 2008; Official Gazette Valstybės žinios, 2008, No. 11-387) of Item 481 of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government of the Republic of Lithuania Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month was in conflict with Article 29 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit, he shall be paid the difference between the maternity (paternity) benefit and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.
  13. To recognise that the first paragraph (wordings of 27 August 2008, 8 April 2009, 26 August 2009, 23 December 2009 and 8 September 2010; Official Gazette Valstybės žinios, 2008, No. 104-3982; Official Gazette Valstybės žinios, 2009, No. 42-1620; Official Gazette Valstybės žinios, 2009, No. 107-4475; Official Gazette Valstybės žinios, 2009, No. 158-7164; Official Gazette Valstybės žinios, 2010, No. 107-5535) of Item 481 of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government of the Republic of Lithuania Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it established that if the insured person who has been or is on childcare leave has (during this leave) the insured income received from the work activity carried out not during this leave, where the amount of the said income is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.
  14. To recognise that the first paragraph (wording of 13 April 2011; Official Gazette Valstybės žinios, 2011, No. 46-2180) of Item 481 of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government of the Republic of Lithuania Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001, insofar as it did not establish that if the insured person who has been or is on childcare leave and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, was in conflict with Article 29 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it did not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, was in conflict with Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.
  15. To recognise that the first paragraph (wording of 29 June 2011; Official Gazette Valstybės žinios, 2011, No. 79-3868) of Item 481 of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government of the Republic of Lithuania Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001, insofar as it does not establish that if the insured person who has been or is on childcare leave, until the child reaches the age of one year, and has the income received for the work activity carried out during the said leave which, under the laws of the Republic of Lithuania, is not the insured income and its amount is less than the maternity (paternity) benefit (the sum total of these benefits), he shall be paid the difference between the maternity (paternity) benefit (the sum total of these benefits) and the insured income held by him in the appropriate month, is in conflict with Article 29 of the Constitution of the Republic of Lithuania, Paragraph 1 of Article 39 thereof and the constitutional principle of a state under the rule of law, as well as insofar as it does not establish that, when the maternity (paternity) benefit is being paid, all the income received during the childcare leave for the work activity carried out not during that leave is not included into the insured income, is in conflict with Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.
  16. To recognise that the second paragraph (wording of 16 January 2008; Official Gazette Valstybės žinios, 2008, No. 11-387) of Item 49 (wording of 8 April 2009) of the Regulations on Social Insurance Benefits of Sickness and Maternity approved by Government of the Republic of Lithuania Resolution No. 86 “On the Approval of the Regulations on Social Insurance Benefits of Sickness and Maternity” of 25 January 2001, insofar as it did not establish that in cases when the person specified in the first paragraph of this item was paid a severance pay not on the day of his dismissal from work, but some other time during the childcare leave, one was not to take account of this insured income in the continuation of the payment of the awarded maternity (paternity) benefit, was in conflict with Paragraph 1 of Article 39 of the Constitution of the Republic of Lithuania.

This ruling of the Constitutional Court is final and not subject to appeal.

The ruling is promulgated in the name of the Republic of Lithuania.

Justices of the Constitutional Court:                         Egidijus Bieliūnas

                                                                                             Toma Birmontienė

                                                                                             Pranas Kuconis

                                                                                             Gediminas Mesonis

                                                                                             Ramutė Ruškytė

                                                                                             Egidijus Šileikis

                                                                                             Algirdas Taminskas

                                                                                             Romualdas Kęstutis Urbaitis

                                                                                             Dainius Žalimas