CYIL vol. 10 (2019)

SANDRA BROŽOVÁ CYIL 10 ȍ2019Ȏ core question that was solved by the courts was what sources of law should be applied to the situation of foreign employers working for a company with its legal seat in the Czech Republic where the actual work was carried out. The Czech courts formulated a very logical argument that the EU social coordination regulations cannot be applied to cover the period when the Czech Republic was not yet an EU Member State. The majority of concerned employees came from France and the company had a French origin, which is the reason why the series of cases is well known and referred to as the cause of “the French employees” and their social security claims. According to French private international law regulation, the employment relationship should be governed by the Czech law as the law of the country where the place of work is located. Apparently, the application of international legal sources has its limits within social security law due to the nature of its legal regulation discussed above. The reference to a particular interstate legal order brought by the application of international treaty should be understood as a reference to this legal order as a whole, while the concrete solution is to be derived from the chosen social security internal legislation. 21 There is already a well- established and frequently repeated opinion that international treaties cannot cause any less advantageous situation for the applicants that would be granted by the internal law only without any international coordination. 22 Another important conclusion expressed by the administrative courts is that the executive bodies are obliged by their own consistent practice and cannot manifestly derive from it by adopting a different approach which would cause harm to an applicant and their legitimate expectations. 23 The concurrent and stable practice of the State’s organs is binding for its creators to the extent that it is not desirable to change the overall trend of decision making by publishing an internally directed instruction with a different solution to a particular legal question. Concluding remarks As can be seen from the above-discussed cases, the prevailing ways of interpretation can be identified as follows: The nature of the international coordination system causes the internal courts to assess international treaties primarily from the viewpoint of the question of whether to apply them or not. The treaties may set criteria and conditions for the selection of suitable internal law to solve the disputed issue materially. This means that although social security coordination falls within a public law branch, the regulation is functioning in a similar way as private international law – conflict of laws. Also, the existence and duration of a valid and binding international treaty is necessary for the realization of foreign contribution periods to be regarded as equivalent with the domestic ones.

21 See the judgment of the Supreme Administrative Court, File No. 6 Ads 14/2011. 22 See e.g. cases before the Supreme Administrative Court, File No. 6 Ads 14/2011, The Czech Supreme Court, File No. Cpj 232/73, Czech Constitutional Court, File No. PL ÚS 31/94. 23 See cases before Czech Constitutional Court, File No. IV. ÚS 610/06, I. ÚS 520/06.

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