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On the limitation on the amount of unemployment insurance benefits

Case No. 42/2009

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF ARTICLE 15 (WORDING OF 20 DECEMBER 2007) OF THE REPUBLIC OF LITHUANIA LAW ON UNEMPLOYMENT SOCIAL INSURANCE WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 7 February 2013

Vilnius

 

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

with the secretary—Daiva Pitrėnaitė,

pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, on 24 January 2013, in the Court hearing, considered, under written procedure, constitutional justice case No. 42/2009 subsequent to the petition (No. 1B-56/2009) of the Kaunas Regional Administrative Court, the petitioner, requesting to investigate whether Article 15 (wording of 20 December 2007) of the Republic of Lithuania Law on Unemployment Social Insurance was not in conflict with Article 52 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

The petition of the Kaunas Regional Administrative Court, the petitioner, is substantiated by the following arguments.

According to the petitioner, under Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance, a person who has the right to receive the unemployment insurance payment (i.e. who meets the conditions for receiving the unemployment insurance payment) but who receives certain other social insurance payments (in this case, the state social insurance disability pension), loses the right to receive the unemployment insurance payment if it is smaller than the other social payments received. Such legal regulation, in the opinion of the petitioner, was in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.

The petitioner notes that from the aspects of the content of Article 52 of the Constitution revealed in the constitutional jurisprudence, it is obvious that the constitutional obligation of the state is to provide its citizens with an adequate social assistance. While substantiating its doubts regarding the compliance of Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance with Article 52 of the Constitution and the constitutional principle of a state under the rule of law, the petitioner gives references to the Constitutional Court’s rulings and the provisions of the official constitutional doctrine formulated therein, such as: the constitutional principle of a state under the rule of law implies that human rights and freedoms must be ensured; the principle of justice may be implemented by ensuring certain equilibrium of interests, by escaping fortuity and arbitrariness, instability of social life and conflict of interests; one of the elements of legitimate expectations is the protection of rights that are acquired under the Constitution as well as laws and other legal acts which are not in conflict with the Constitution; under the Constitution, every citizen has the right to social security; the provisions of Article 52 of the Constitution guaranteeing citizens’ right to social maintenance, obligate the state to establish sufficient measures to implement and legally protect the said right; not only the kinds of social insurance specified in the said article of the Constitution must be established by law, but also proper implementation of the right to receive social assistance and legal defence thereof must be ensured by law as well; Article 52 of the Constitution implies a duty of the legislator to establish the legal regulation which would ensure the accumulation of funds necessary for social assistance and rendering of social assistance.

In the opinion of the petitioner, the social assistance rendered by the state, as well as the unemployment social insurance payment, must be real and effective and legal acts may not provide for any such conditions for and limitations on the provision of that assistance, which would deny the right of a person to receive such assistance and would obviously be unfair.

II

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Seimas, the party concerned, who was Arvydas Vidžiūnas, a Member of the Seimas, wherein it is maintained that the impugned legal regulation was not in conflict with the Constitution.

According to the representative of the party concerned, while regulating the right of a person to the state social insurance payments, one follows the provision that the most favourable, biggest payment should be awarded and paid to the person; such regulation is determined by the fact that the state social insurance is based on the principle of solidarity.

According to the representative of the party concerned, in itself, the legal status of an unemployed person does not grant the rights established by laws to the person; the right of an unemployed person to the payment provided by laws is related to certain conditions consolidated in Article 5 of the Law on Unemployment Social Insurance. A person, who meets the conditions established in the said article, is awarded the unemployment social insurance payment the amount and duration whereof are differentiated.

 The representative of the party concerned also notes that even though under Article 91 of the Labour Code of the Republic of Lithuania the unemployed are the able-bodied persons of the age of ability to work, the disabled may also be registered as looking for work or as unemployed. In addition, the disabled of the age of ability to work are additionally supported in the labour market—the disabled of the age of ability to work to whom 30–40 percent of capacity to work or average level of disability has been established, are registered with a territorial labour exchange as unemployed and their employment is subsidised while seeking to create special conditions to remain in the labour market.

According to the representative of the party concerned, if, provided that several social risks exist, the established state social insurance payment were to be paid for each risk, a situation could be created that from the funds of the state social insurance a person would be paid more than the income from work he had lost; it would be in conflict with the mission and purpose of the social insurance.

The unemployment social insurance payment is only one of the rights established for the unemployed. The Republic of Lithuania Law on Support for Employment established active labour market policy measures—vocational training of the unemployed and of the employees of the age of ability to work who have been given a notice of dismissal, supported employment, support for job creation, promotion of territorial mobility of the unemployed, as well as labour market services—provision of information, counselling, employment intermediation and planning of individual activities.

No state social insurance payment may be identified with the system of social insurance or social assistance, as the payment is only a part of this system. The constitutional principles of social protection are applied while establishing the right of a person to social assistance, thus, one may not agree with the fact that upon establishment of a person’s right to one payment of social insurance and, due to this, upon limiting the right to other ways of social assistance, the social assistance is not real and effective.

The Constitutional Court

holds that:

I

  1. As mentioned before, the Kaunas Regional Administrative Court, the petitioner, requests investigation into whether Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance was not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law.
  2. Article 15 “Payment of Unemployment Insurance Payment Together with Other Social Insurance Payments” (wording of 20 December 2007) of the Law on Unemployment Social Insurance prescribed: “Persons who receive state social insurance pensions, relief pensions or state pensions (with the exception of survivor’s, orphan’s and loss of breadwinner’s pensions), as well as periodic compensations for lost capacity for work due to occupational accidents and occupational diseases shall be paid from unemployment insurance funds only the part of the unemployment insurance payment which exceeds the sum of the received pensions or compensations.”

2.1. It needs to be noted that even though the petitioner requests to investigate whether Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance was not in conflict with Article 52 of the Constitution and the constitutional principle of a state under the rule of law, it is obvious from the arguments of the petition and the material of the constitutional justice case at issue that not all the legal regulation established in Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance raised doubts to the petitioner, but only the provision whereby the persons who receive state social insurance disability (lost capacity to work) pension shall be paid from unemployment insurance funds only the part of the unemployment insurance payment which exceeds the received pension, and only insofar as the impugned legal regulation complied with the provision of Article 52 of the Constitution that the state shall guarantee to citizens the right to receive social assistance in the event of unemployment, and with the constitutional principle of a state under the rule of law.

2.2. Thus, subsequent to the petition of the Kaunas Regional Administrative Court, the petitioner, the Constitutional Court will investigate whether Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance, insofar as it prescribes that persons who receive state social insurance disability (lost capacity to work) pension shall be paid from unemployment insurance funds only the part of the unemployment insurance payment which exceeds the received pension, was not in conflict with the provision of Article 52 of the Constitution that the state shall guarantee to citizens the right to receive social assistance in the event of unemployment, and with the constitutional principle of a state under the rule of law.

  1. On 16 December 2003, the Seimas adopted the Law on Unemployment Social Insurance, which came into force on 1 January 2005 (save the established exceptions). This law, as consolidated in Article 1 “Purpose of this Law” (wording of 16 December 2003) thereof, shall establish legal relationship of unemployment social insurance, the categories of persons covered by unemployment insurance, the entitlement to the unemployment social insurance payment, the conditions of its granting, calculation and payment and the funding, administration of and responsibility for this type of insurance.

3.1. It has been mentioned that Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance which is impugned by the petitioner prescribed that persons who receive state social insurance pensions, relief pensions or state pensions (with the exception of survivor’s, orphan’s and loss of breadwinner’s pensions), periodic compensations for lost capacity for work due to occupational accidents and occupational diseases are paid from unemployment insurance funds only the part of the unemployment insurance payment which exceeds the sum of the received pensions or compensations.

Thus, under the established legal regulation, for the persons who receive inter alia state social insurance disability (lost capacity to work) pension, the amount of payment paid from unemployment insurance funds was limited; for such persons only the part of the unemployment insurance payment which exceeds the pension received is paid, whereas for the persons whose received social insurance disability (lost capacity to work) pension is bigger than the granted unemployment insurance payment or equals to it, the unemployment insurance payment is not paid.

3.2. The legal regulation impugned by the petitioner, consolidated in Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance, is to be construed in the context of the overall legal regulation established in this law.

3.2.1. Article 2 “Unemployment Insurance” (wording of 16 December 2003) of the Law on Unemployment Social Insurance established that unemployment insurance shall be a type of social insurance, which, in cases set by laws, compensates persons covered by this type of insurance for their loss of income due to unemployment or of a part of it.

3.2.2. According to Article 3 “Main Definitions of this Law” (wording of 16 December 2003) of the Law on Unemployment Social Insurance, the insured person means a natural person for whom the insurer must pay unemployment insurance contributions in the manner prescribed by law; having become unemployed the person shall be entitled under the conditions and according to the procedure set out by this law to the unemployment insurance payment (Paragraph 2); the unemployed person means a jobless person of working age capable of work who is not a day-time student, who has registered with the territorial labour exchange in the manner laid down by laws as a job-seeker and is ready to participate in the measures of active labour market policy (Paragraph 4).

Paragraph 1 (wording of 22 December 2004) of Article 5 “Entitlement to the Unemployment Insurance Payment” of the Law on Unemployment Social Insurance provided that the insured persons who are registered as unemployed at the territorial labour exchange and who have not been offered by a territorial labour exchange a job corresponding to their professional skills and state of health, or measures of active labour market policy, shall be entitled to the unemployment insurance payment if they: 1) prior to registration at a territorial labour exchange acquired the unemployment insurance record not shorter than 18 months during the last 36 months; 2) in accordance with the procedure set forth by laws are dismissed from work or from the office of the civil servant through no fault of the employee or the civil servant, due to circumstances beyond the employee’s or civil servant’s control or in the event of the employer’s bankruptcy; 3) have completed the mandatory continuous initial military service or the alternative national defence service or have been discharged from these services after having served at least half of the established time period.

Thus, under this legal regulation, the following general requirements in order to acquire the right to unemployment insurance payment were established: a person had to be covered by the unemployment social insurance, had to be registered as unemployed at the territorial labour exchange and he had not been offered by a territorial labour exchange a job corresponding to his professional skills and state of health, or measures of active labour market policy; also additional alternative requirements in order to acquire the right to unemployment insurance payment were pointed out.

3.2.3. Article 9 “Non-granting of the Unemployment Insurance Payment” (wording of 16 December 2003) of the Law on Unemployment Social Insurance prescribed that the unemployment insurance payment shall not be granted if, prior to its granting, the unemployed person: refused a job offer; refused for no justifiable reason to participate in the measures of active labour market policy, laid down in his individual employment plan; failed for no justifiable reason to arrive at a set time at the territorial labour exchange to accept a job offer or to participate in the measures of active labour market policy, laid down in his or her employment plan; refused to undergo a health check offered by the territorial labour exchange in order to establish suitability for work.

Article 10 “Suspension of the Payment of the Unemployment Insurance Payment” (wording of 22 December 2004) of the Law on Unemployment Social Insurance prescribed that the payment of the unemployment insurance payment shall be suspended if the unemployed person: participates in the measures of active labour market policy and receives remuneration for work; upon informing the territorial labour exchange obtains employment under a fixed-term employment contract for a period not longer than 6 months; is issued a business licence for a period not longer than 6 months.

Article 11 “Termination of the Payment of the Unemployment Insurance Payment” (wording of 16 December 2003) of the Law on Unemployment Social Insurance prescribed that the payment of the unemployment insurance payment shall be terminated if during the period of payment of the unemployment insurance payment, the unemployed person: inter alia refused a job offer; refused for no justifiable reason to participate in the measures of active labour market policy, laid down in his individual employment plan; failed for no justifiable reason to arrive at a set time at the territorial labour exchange to accept a job offer or to participate in the measures of active labour market policy, laid down in the employment plan; obtains employment or works on a self-employed basis.

Thus, under the established legal regulation, the right of the unemployed person to receive the unemployment insurance payment is limited (the payment is not granted, payment thereof is suspended or terminated) inter alia when the unemployed person himself refuses or avoids participating in the measures of active labour market policy, accepting a job offer, i.e. when such a person does not seek integration into the labour market, as well as when he has a possibility to receive certain income.

3.3. Upon summing up this legal regulation established in the Law on Unemployment Social Insurance, one is to draw a conclusion that the right of the person who is covered by the unemployment social insurance to the unemployment insurance payment is not absolute; the person acquires it only in such a case if the territorial labour exchange has not offered a job corresponding to his professional skills and state of health, or measures of active labour market policy to the person registered as unemployed; this right of such a person may be limited (a part of the payment is paid, the payment is not paid, his payment is suspended or terminated), if he does not seek to integrate into labour market himself, as well as if he has a possibility to receive certain income.

  1. The impugned legal regulation established in Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance is to be construed also in the context of certain provisions of the Republic of Lithuania Law on Support for Employment (wording of 15 June 2006).

4.1. Paragraph 1 of Article 38 “The Funds of the Employment Fund” of the Law on Support for Employment (wording of 15 June 2006) prescribed that the funds of the Employment Fund consist of unemployment social insurance funds according to the amount of funds and the rate of contributions which is approved for this type of insurance by the Law on the Approval of Indicators of the Budget of the State Social Insurance Fund, income of establishments at the Ministry of Social Security and Labour implementing the employment support policy and other funds.

Thus, according to this legal regulation, inter alia the unemployment social insurance funds were accumulated in the Employment Fund.

4.2. Paragraph 2 of Article 37 “The Employment Fund” of the Law on Support for Employment (wording of 15 June 2006) established that the funds of the Employment Fund shall be used for the implementation of the employment support measures specified in Paragraph 3 of Article 3 of this Law and maintenance and financing of the development of establishments at the Ministry of Social Security and Labour implementing the employment support policy, payment of unemployment social insurance payments stipulated in the Law on Unemployment Social Insurance, co-financing of the employment support projects financed from the European Union structural funds and other international employment support projects and financing of the administration of this fund.

According to Paragraph 3 of Article 3 “Aim and Tasks of the Employment Support System and the Employment Support Measures” of the Law on Support for Employment (wording of 15 June 2006), the employment support measures are as follows: general employment support services, active labour market policy measures and employment support programmes.

4.3. Articles 17, 18, 19, 20 and 21 of the Law on Support for Employment (wording of 15 June 2006) established the following general employment support services: provision of information, counselling, employment intermediation and planning of individual activities with a view of supporting the employment. By such measures the persons are informed about the opportunity to find a job, situation in the labour market, vocational training; they are counselled while seeking to help them to conform to the labour market; in addition, intermediation is carried out seeking to help unemployed persons or other jobseekers and the employers; individual employment plans are prepared.

4.4. Articles 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 of the Law on Support for Employment (wording of 15 June 2006) established the following active labour market policy measures: vocational training and non-formal education of the unemployed and of the employees who have been given a notice of dismissal, supported employment (one of the measures of supported employment could be applied to jobseekers: subsidised employment, support for the acquisition of professional skills, public works), support for job creation (one of the following measures could be applied for job creation and employment of the unemployed person at one time: subsidies for job creation, implementation of projects of local initiatives for employment, support for self-employment) and job rotation. By such measures a person is enrolled into the labour market, his working skills are formed, at the time of application of the corresponding measure, certain income is ensured to him, whereas in certain cases, the expenses linked to participation of such a person in the said measures may be compensated.

4.5. Thus, according to the discussed legal regulation, the funds of the Employment Fund were used inter alia for the implementation of the employment support measures (inter alia employment support general services, active labour market policy measures) and payment of the unemployment insurance payments prescribed in the Law on Unemployment Social Insurance.

  1. In the context of the constitutional justice case at issue, one is also to note certain provisions of the Law on Support for Employment which consolidate the employment support measures intended for the disabled persons.

5.1. Paragraph 1 of Article 4 “Persons Additionally Supported in the Labour Market” (wording of 10 May 2007) of the Law on Support for Employment (wording of 15 June 2006) inter alia prescribed that the disabled whose capacity for work is rated at up to 40 percent (before 1 July 2005—persons with Group I or II disability) or the disabled for whom severe or moderate disability has been established (Item 1) and the disabled whose capacity for work is rated at 45–55 percent (before 1 July 2005—persons with Group III disability) or the disabled for whom mild disability has been established (Item 2) are additionally supported in the labour market.

Thus, under this legal regulation, the persons incapable or partially capable of working to whom a group of disability and capacity for work has been established are additionally supported in the labour market.

5.2. Article 26 “Subsidised Employment” (wording of 10 May 2007) of the Law on Support for Employment (wording of 15 June 2006) prescribed that subsidised employment shall be organised for persons specified in inter alia Item 2 of Paragraph 1 of Article 4 of this law while seeking to help them strengthen their positions in the labour market, whilst for persons specified in Item 1 of Paragraph 1 of Article 4 of this law—seeking to create special conditions enabling them to remain in the labour market; employees, who have employed persons specified in inter alia Item 2 of Paragraph 1 of Article 4 of this law, receive remuneration subsidies for a period of up to 12 months; employers, who have employed persons specified in Item 1 of Paragraph 1 of Article 4 of this law, each month, throughout the whole period of their employment, for each employed person receive a subsidy.

Thus, according to this legal regulation, subsidised employment is organised inter alia for the disabled whose capacity for work is rated at 45–55 percent (before 1 July 2005—persons with Group III disability), while seeking to help them strengthen their positions in the labour market and for the disabled whose capacity for work is rated at up to 40 percent (before 1 July 2005—persons with Group I or II disability)—seeking to create special conditions enabling them to remain in the labour market; employers are paid a certain subsidy for the remuneration of these persons.

5.3. Article 30 “Subsidies for Job Creation” (wording of 10 May 2007) of the Law on Support for Employment (wording of 15 June 2006) prescribed that subsidising of job creation shall be organised while seeking to support employment under an open-ended contract of persons specified in inter alia Items 1 and 2 of Paragraph 1 of Article 4 of this law by creating new jobs (adapting the already existing ones) and to support self-employment of persons specified in Item 1 of Paragraph 1 of Article 4 of this law.

Thus, according to this legal regulation, subsidies for job creation are provided for the employers who create new jobs (adapt the already existing ones) and employ under an open-ended contract the disabled whose capacity for work is rated at up to 40 percent (before 1 July 2005—persons with Group I or II disability) or whose capacity for work is rated at 45–55 percent (before 1 July 2005—persons with Group III disability), as well as for supporting self-employment of the disabled whose capacity for work is rated at up to 40 percent (before 1 July 2005—persons with Group I or II disability).

5.4. While summarising the aforementioned legal regulation, it needs to be held that the disabled whose capacity for work is rated at up to 40 percent (before 1 July 2005—persons with Group I or II disability) and the disabled whose capacity for work is rated at 45–55 percent (before 1 July 2005—persons with Group III disability) are additionally supported in the labour market; they may be supplied with the special active labour market policy measures, whereby one seeks not only to reinstate a person in the labour market, but also to keep him in it.

  1. In the context of the constitutional justice case at issue the following provisions of the Republic of Lithuania Law on State Social Insurance Pensions are to be mentioned:

6.1. Article 4 “Types of State Social Insurance Pensions” of the Law on State Social Insurance Pensions (wording of 19 May 2005) prescribed that as from 1 July, the lost capacity to work pension shall be established (Item 2 of Paragraph 1), as well as that in accordance with the procedure laid down by this law, until the expiry of the term of payment or until the awarding of state social insurance old age pensions or pensions of lost capacity to work in replacement thereof, the disability pensions awarded before 1 July 2005 shall continue to be paid (Item 3 of Paragraph 2).

Article 27 “Entitlement to the State Social Insurance Disability Pension” (wording of 7 July 1999) of the Law on State Social Insurance Pensions (wording of 18 July 1994) inter alia prescribed that the person for whom disability has been determined for the first time acquires the right to receive the state social insurance disability pension.

Article 28 “Entitlement to the State Social Insurance Lost Capacity to Work Pension” of the Law on State Social Insurance Pensions (wording of 19 May 2005) inter alia prescribed that the persons who, in accordance with the procedure laid down by the Law on the Social Integration of the Disabled, have been established a level of capacity for work and who are rated as incapable or partially capable of work shall be entitled to the social insurance lost capacity to work pension where these persons fulfil the conditions established in this law.

Thus, according to the established legal regulation, the persons for whom disability has been determined or who, upon establishment of their level of capacity, have been rated as incapable or partially capable of work are entitled to a state social insurance disability pension (lost capacity to work pension).

6.2. Consequently, the persons who, under the Law on State Social Insurance Pensions, have been granted and are paid a disability pension (the lost capacity to work pension) and for whom, insofar as it is specified in the impugned Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance, limitation of the amount of unemployment insurance payment has been established, inter alia including situations when this payment is not paid to the person, are additionally supported in the labour market according to the Law on Support for Employment; for such persons this law establishes special active labour market policy measures, whereby one seeks not only to reinstate the person in the labour market, but also to keep him in it.

II

  1. It has been mentioned that in the constitutional justice case at issue one investigates whether Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance, insofar as it prescribes that persons who receive state social insurance disability (lost capacity to work) pension shall be paid from unemployment insurance funds only the part of the unemployment insurance payment which exceeds the received pension, was not in conflict with the provision of Article 52 of the Constitution that the state shall guarantee to citizens the right to receive social assistance in the event of unemployment, and with the constitutional principle of a state under the rule of law.

As mentioned before, the doubts regarding the compliance of the impugned legal regulation with the Constitution are substantiated by the fact that, according to the petitioner, legal acts may not establish any such conditions or limitations of rendering the social assistance (unemployment social insurance payments) which, due to certain reasons, would absolutely deny the right of the person to receive such assistance.

  1. Article 52 of the Constitution prescribes: “The State shall guarantee to citizens the right to receive old age and disability pensions as well as social assistance in the event of unemployment, sickness, widowhood, loss of the breadwinner, and in other cases provided for by laws.”

The Constitutional Court has held more than once that Article 52 of the Constitution sets the bases of pensionary maintenance and social assistance (inter alia the Constitutional Court’s rulings of 6 February 2012 and 29 June 2012); the provisions of Article 52 of the Constitution express the social orientation (social character) of the state, while the social maintenance, i.e. contribution of the society to maintenance of such its members who are incapable of providing themselves from work or other means or who are not sufficiently provided due to important reasons provided by law, is recognised as having the status of a constitutional value; the measures of social security express the idea of social solidarity and help a person to protect himself from possible social risks (inter alia the Constitutional Court’s rulings of 26 September 2007 and 6 February 2012).

Under the Constitution, the state, as the organisation of the entire society, has an obligation to take care of its members in the event of old age, disablement, unemployment, sickness, widowhood, loss of breadwinner, and other cases provided for by the Constitution and laws; every citizen has the right to social security; the pensions and social assistance indicated in Article 52 thereof are one of the forms of social security (the Constitutional Court’s ruling of 25 November 2002).

The provisions of Article 52 of the Constitution guaranteeing citizens’ right to social maintenance obligate the state to establish sufficient measures to implement and legally protect the said right (inter alia the Constitutional Court’s rulings of 14 December 2010 and 6 February 2012). The state must create such a system of social maintenance, which would assist in maintaining conditions of living in line with human dignity, and, if necessary, provide a person with the necessary social security (inter alia the Constitutional Court’s rulings of 26 September 2007 and 6 February 2012).

  1. In the context of the constitutional justice case at issue, Article 52 of the Constitution, which inter alia prescribes the basis of social assistance, is to be construed together with Paragraph 1 of Article 48 of the Constitution that each human being shall have the right to inter alia social security in the event of unemployment, with the constitutional principle of a state under the rule of law and other related norms and principles of the Constitution.

3.1. While construing the duty of the state to guarantee the right of each human being to inter alia social security in the event of unemployment consolidated in Paragraph 1 of Article 48 of the Constitution, the Constitutional Court has held that if due to certain reasons a person has lost his job and cannot take care of his welfare, a duty appears for the state to establish such legal regulation, under which social assistance would be ensured for the person in the event of unemployment. The legislator may choose and enshrine in the laws the model of provision of the said assistance, inter alia various forms thereof, however, one may not establish any such legal regulation which would create preconditions for such a situation to appear, where a person, who has lost his job due to certain reasons, would not receive the corresponding social assistance (the Constitutional Court’s ruling of 24 December 2008).

3.2. While construing Article 52 of the Constitution, it is necessary to take account also of the constitutional principle of a state under the rule of law (the Constitutional Court’s ruling of 3 December 2003), the content whereof is to be construed inseparably from the striving for an open, just and harmonious civil society which is declared in the Preamble to the Constitution and is to be revealed while assessing all the values entrenched in, and protected and defended by the Constitution, and while taking account of the content of various other constitutional principles, such as justice and social solidarity (comprised with responsibility of everyone for his own fate).

The Constitutional Court has held more than once that justice is one of the basic objectives of law as means of regulating social relations. It is one of basic moral values and the basic foundation of a state under the rule of law. Justice may be implemented by ensuring certain equilibrium of interests, by escaping fortuity and arbitrariness, instability of social life and conflict of interests.

The social solidarity principle consolidated in the Constitution implies that the burden of fulfilment of certain obligations to certain extent should be distributed also among members of society, however, such distribution should be constitutionally reasoned, it cannot be disproportionate, it cannot deny the social orientation of the state and the obligations to the state, which arise from the Constitution (inter alia the Constitutional Court’s rulings of 6 February 2012 and 29 June 2012).

In the context of the constitutional justice case at issue, it needs to be noted that Article 52 of the Constitution, the striving for an open, just, and harmonious civil society and the state under the rule of law which is established in the Preamble to the Constitution and the constitutional principles of the social orientation and social solidarity of the state imply that the content of the legal regulation of the social assistance relations may be determined by various factors, inter alia by the resources of the state and society, material and financial possibilities, the need to ensure the financial stability of the state, economic sustainability and development. The legislator, taking account of these factors and respectively regulating the said relations, has broad discretion to choose and consolidate by law the types of social assistance, as well as the amounts of financial assistance, in the event of unemployment. It needs to be noted that when a person, according to laws, meets the requirements in order to receive the social assistance of several kinds, the legislator, taking account inter alia of the purpose of the social assistance and the financial possibilities of the state and society, may establish the conditions under which this assistance will be rendered.

  1. In itself, the constitutional status of social rights does not deny the right of the legislator to establish certain conditions to or limitations of the appearance of the aforesaid rights (the Constitutional Court’s ruling of 6 May 1998).

The Constitutional Court has held more than once that the principle of solidarity consolidated in the Constitution in the civil society does not deny personal responsibility for one's own fate, therefore, the legal regulation of social security should be such so 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 (inter alia the Constitutional Court’s rulings of 6 February 2012 and 27 February 2012).

The right of a person to social assistance and to social security at large is to be interpreted in accordance with the imperatives of social harmony and justice which are consolidated in the Constitution. The social assistance rendered to a person should not become a privilege, it 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. Thus, under the Constitution, a duty stems for the legislator to establish by law such bases or conditions of rendering social assistance, as well as kinds and amount of social assistance so as to create preconditions and incentives 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.

In the context of the constitutional justice case at issue, it needs to be noted that the constitutional principle of social solidarity also implies that the legislator, while taking account of inter alia the purpose of social assistance in the event of unemployment and the financial possibilities of the state and society, may establish such legal regulation, whereby, with regard to the persons who under the laws receive a different social assistance, which is rendered by the state in a financial form (inter alia the disability pension) and is capable of ensuring conditions of living in line with human dignity, the social protection would be rendered not in a form of financial assistance, but in a different form in the event of unemployment.

  1. It has been mentioned that under the impugned provision of Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance, for the persons who receive the state social insurance disability (lost capacity to work) pension, only the part of the unemployment insurance payment which exceeds the pension received shall be paid, or this payment shall not be paid if the received pension is bigger than the granted unemployment insurance payment or equals to it.

It has also been mentioned that the Law on Support for Employment establishes general employment support services financed from the funds of unemployment insurance, measures of active labour market policy, whereby a person is enrolled into the labour market, his working skills are formed, at the time of application of the corresponding measure, certain income is ensured to him, and, in certain cases, the expenses linked to participation of such a person in the said measures are compensated; for the persons, to whom disability has been determined or who, upon establishment of their level of capacity, have been rated as incapable or partially capable of work, also special active labour market policy measures are established, whereby one seeks not only to reinstate a person in the labour market, but also to keep him in it.

Thus, the Law on Support for Employment also establishes forms of social security in the event of unemployment, which are different from the financial assistance prescribed inter alia in the Law on Unemployment Social Insurance.

Thus, there is no ground to state that by means of the legal regulation established in Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance, under which, for the persons who receive the state social insurance disability (lost capacity to work) pension, only the part of the unemployment insurance payment which exceeds the pension received shall be paid from unemployment insurance funds, one denied the right of a person to social assistance in the event of unemployment.

  1. Taking account of the arguments set forth, one is to draw a conclusion that Article 15 (wording of 20 December 2007) of the Law on Unemployment Social Insurance, insofar as it prescribes that persons who receive state social insurance disability (lost capacity to work) pension shall be paid from unemployment insurance funds only the part of the unemployment insurance payment which exceeds the received pension, was not in conflict with the provision of Article 52 of the Constitution that the state shall guarantee to citizens the right to receive social assistance in the event of unemployment and with the constitutional principle of a state under the rule of law.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 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:

To recognise that Article 15 (wording of 20 December 2007; Official Gazette Valstybės žinios, 2007, No. 138-5653) of the Republic of Lithuania Law on Unemployment Social Insurance, insofar as it prescribes that persons who receive state social insurance disability (lost capacity to work) pension shall be paid from unemployment insurance funds only the part of the unemployment insurance payment which exceeds the received pension, was not in conflict with 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

                                                                                                        Gediminas Mesonis

                                                                                                        Egidijus Šileikis

                                                                                                        Algirdas Taminskas

                                                                                                        Romualdas Kęstutis Urbaitis

                                                                                                        Dainius Žalimas