CYIL vol. 10 (2019)

SANDRA BROŽOVÁ CYIL 10 ȍ2019Ȏ The practical relevance gained importance after the dissolution of the federation. Previously, the pensions and other social security schemes were regulated by laws on the federal level 6 and were therefore the same throughout the whole country. After 1993, both countries developed social security schemes of their own. Due to the macroeconomic development and differences in economic policies and long-term social security strategy in both countries, the Slovak pensions are considerably lower in comparison to the Czech ones. This caused a strong feeling of unjust treatment and discrimination concerning Czech pensioners with employment records in Slovak enterprises, in particular in cases where their work was actually carried out in an employer’s branch located in the Czech Republic. Their perceived discrimination was expressly stated in administrative and court proceedings carried out by the Czech Social Security Authority and consequently within the administrative judiciary. Some cases were also brought before the Czech Constitutional Court due to alleged breach of fundamental human rights of equal treatment and non-discrimination. It is not difficult to understand the affected pensioners who simply wanted to be awarded the same pension as their neighbours, relatives and colleagues having also worked in the Czech Republic, while they considered themselves as being in a factually comparable situation. On the other hand, many Slovak pensioners enjoy higher Czech pensions because of having been employed in the Czech territory in the past (this case is definitely more numerous than the opposite direction of labour migration inflow). As a consequence of the abovementioned situation, the Czech Republic introduced into legislation and practical implementation a special kind of social allowance to compensate the affected Czech citizens with lower retirement pensions due to their Slovak working experience. The above-mentioned Czech-Slovak bilateral treaty was included into the list of existing and valid bilateral agreements annexed to the European social security coordination regulation 7 that was in force at the time of both republics’ EU accession, in 2004. The competence of the European Union to act in the social policy sphere is only shared (see Art. 4 of the Treaty on the Functioning of the European Union, TFEU) and it is practised through supporting the system of coordination between all Member States’ national social security systems. This means a significant difference from some important EU competences that are decisive for internal market functioning and EU external economic relations. The areas such as commercial policy, foreign direct investment, and the establishment of competition rules on the internal market are among exclusive EU competences (see Art. 3 of TFEU) and, therefore, Member States’ cannot conclude treaties on their own anymore. On the contrary, in the social policy sphere, bilateral agreements concluded by individual Member States are still allowed with third countries and also among Member States themselves, under the condition of publishing these agreements in the list annexed to the European coordination regulation. 8 The Supreme Administrative Court of the Czech Republic which is – together with the Constitutional Court – the top interpretative authority in the field of administrative law, formulated some questions regarding the conformity of the prevailing Czech social security legislation practice when it came to pensions related to Slovakia, and posed the questions to 6 Such as the Act on Social Security, No. 100/1988 Coll. 7 Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community. 8 Currently Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, in force since 2010.

470