Slovaquie

THE RIGHT TO SOCIAL SECURITY IN  THE CONSTITUTION OF THE SLOVAK REPUBLIC

Prof. Andrea Olsovska

 

The primary source of constitutional law in the Slovak Republic is the Constitution of the Slovak Republic – No. 460/1992 Coll. as amended (hereinafter "the Constitution"). A part of the constitutional system of the Slovak Republic is also the Charter of Fundamental Rights and Freedoms (Constitutional Act No. 23/1991 Coll.) which includes provision of basic human rights and freedoms. In Slovakia there, thus, exists duplicity in provision for fundamental human rights and freedoms, therefore our analysis will be based on the Constitution.

Social security rights belong to the category of economic, social and cultural rights. The real content of social security rights differs in each country, because it depends primarily on the economic, demographic, political, territorial factors as well as the ethical views and traditions of each country.[1]

The basis for the legislative system pertaining to social security in the Slovak Republic are the principles of guarantees and application of social rights embedded in the national legislation as well as in the international and European legislative framework. The need for social protection (social security) of an individual by the state is usually derived from the right to human dignity, right to life and right to health protection.

The relatively extensive system of social security law is also divided in the Slovak Republic into three subsystems:

- social insurance: the insurance system is the most extensive as it covers health insurance and social insurance, which is further divided into sickness insurance, pension insurance, unemployment insurance, accident insurance and guarantee insurance.

The insurance system is mainly built on the principles of self-financing and the creation of insurance funds, the principle of the independence of an insurance relationship of the will of policyholders, multiple insurance, funding benefits replacing wages and the principle of legal and economic guarantees. The amount of contribution obligation of the insured does not derive from the nature of social risk but from the amount of the insured´s income. Regarding social insurance benefits, they vary according to the assessment base (simply stated – according to the incomes, in the case of an employee it is their salary), of which are paid contributions to various funds. At the same time, there is stated statutory maximum and minimum amount of the assessment base (in the case of an employee the minimum assessment base is the minimum wage fixed by law), there is not legally guaranteed a specific minimum amount of social security benefits. It should be noted that although there is a maximum assessment base, the amount of social security benefit is provided even in a lower amount than it would appear from the maximum assessment base (shown in simplified example: In case of the unemployment insurance, the monthly maximum assessment base is currently of 4,000 €, the maximum for the calculation of unemployment benefit is about € 1,600 monthly, the max. unemployment benefit is equal to 50 % of the amount of € 1,600, i.e. of about € 800 monthly). Due to the focus of the study we only provide the basic social insurance benefits.

Separation of the health insurance from the social insurance system (mainly from sickness insurance) is caused, on one hand, by the different principles and, on the other hand, by different character of the benefits of both systems. Health insurance, unlike insurance in sickness, is built on the full application of solidarity and medical services reimbursed by health insurance system are material benefits;

- social support: the social support system is not based on contributions, and allowances under the system are financed directly from the state budget; the system is applied mainly with respect to the field of family policy (benefits are not tested by parental income, but represent a regular sum of contributions, which are determined by the state; there is a legal right for the benefits from the system of social support). Due to the focus of the study we only report basic social benefits; and

- social assistance: it is built on the principle of subsidiarity. The social assistance system constitutes social allowances financed from public resources (in its majority from the state budget). Social allowances in the form of monetary or material allowances (services) serve the purpose of elimination of social risk of poverty in situations, when a socially dependent person does not have the capacity to provide themselves with basic living conditions or subsistence level by his/her own efforts. Under the subsistence level, a person may find themselves not only because of the lack of material resources (the material deprivation), but also because of severe physical disability, which deprives them from providing for themselves, their household, their rights or contact with the social environment (the so-called social need).

 

1. The constitutional guarantees of social security rights

Economic, social and cultural rights are governed by Title II of the Constitution: Fundamental Rights and Freedoms and in the Section five: Economic, Social and Cultural Rights (Articles 35-43). These include the right to work (Article 35), the right to material welfare (Article 39) and the right to protection of health (Article 40), protection of marriage, parenthood and family (Article 41).

In the terms of values they are aimed not only at preservation of „bare" life, but also at the quality of human life, which is related to the question whether the quality of life should correspond to the man himself or to the state. Range of economic, social and cultural rights is affected by the economic and legal factors[2], which are most apparent in the fact that an absolute majority of these rights may be claimed only within the limits of the law, which implement these provisions. That mentioned rule is enshrined in Art. 51(1) of the Constitution, according to which claiming the rights provided for in Art. 35, 36, 37(4),  Art. 38 to 42 and Art. 44-46 of the Constitution shall be confined within the limits of the law which implements these provisions. Exception to this rule would be only the situation, if the Slovak Republic acceded to an international treaty with priority over laws of the Slovak Republic, or if there was a binding act of the EU. Under this provision the Constitution gives a wide scope for the legislator to define the content of economic, social and cultural rights, and is able to take into account the economic capacity of the state at the time of the adoption of a specific law. Under this provision, according to the Constitutional Court of the Slovak Republic[3] the obligations which arise for the state in the area of these rights from international obligations must be also interpreted.[4] Since the mentioned constitutional rights require implementation by the law, their validity is confirmed by Art. 13(2) of the Constitution which limits of the fundamental rights and freedoms can be subject to amendment only by the conditions laid down in this Constitution referred to as the Act.

Conditioning the applicability of the constitutional rights by a particular law (acts) reduces their possibility of constitutional protection and leaves the quality of the content of the relevant laws to the consideration of the legislator. Within the legal doctrine a contentious issue is whether citizens have or not the possibility to constitutionally influence the quality of these laws. In this respect, the theory of the so-called positive commitment plays an important role that was adopted also by the Constitutional Court of the Slovak Republic[5]. The theory of positive commitment imposed to the state the obligations to not only declare the human rights, but also to ensure all conditions (including the physical and legal), necessary for their fulfilment. This should also lead the legislator to a constitutional obligation to adopt such laws that meet the content and meaning of the Constitution.[6]

Most of the economic, social and cultural rights in terms of Art. 51 of the Constitution, thus, meet the real content of the provisions of the relevant laws and their constitutional protection is only guaranteed within the limits of these laws (acts).

The method of enshrinement of such constitutional social rights has its roots in the economic dimension of social rights. This raises the fructiferous debate, since the level of implementation of social rights is often changed by relatively frequent change of regularization. It can be generally stated that the economic dimension of social rights differs social rights from fundamental human rights.[7] Social rights are relative, opposed to human rights that are absolute.

Relativity of the constitutional social rights (their indirect enshrinement - not in the Constitution, but in the acts) is reflected in the decision-making activities of the bodies responsible for protection of constitutionality, that means, that you cannot directly allege breach of the Constitution - a breach of the relevant constitutional social right, but only in relation with the violation of the principle of Rechtsstaat, which must be respected by the legislator in the implementation of social rights[8] (e.g. citizen could not directly claim that he/she has a low retirement pension and directly allege the Article 39 of the Constitution, but can allege the breach of the principle of Rechtsstaat - e.g. the principle of legal security (if there were frequent changes in the regularization of pension scheme) or the prohibition of discrimination).

 

2. The scope of the material and personal social security rights guaranteed by the Constitution

Although, when referring to Social Rights the Constitution uses also the term "citizen", the social rights in Slovakia are not based on the civic principle, and it is because of the fact that the implementing legislation on social security recognizes in accordance with the principle of equal treatment and the constitutional principle of equality in rights (Article 12 (1,2) of the Constitution) equal status and equal rights and obligations in the social security system as to the citizens of the Slovak Republic as well as stateless persons, foreigners and asylum seekers. The laws in this way extend the personal scope of the constitutional social rights (the above referred is confirmed by the fact that these rights are guaranteed by law also for the EU citizens).

 

Right to work and the material welfare if a citizen cannot work

According to Art. 35(3) of the Constitution the citizens have the right to work. The state provides citizens who, not by their own fault, cannot exercise that right with material welfare in a reasonable level. The conditions are laid down by the law. The law may provide for a different regulation of the rights referred to in Article 35(1-3) of the Constitution for foreigners.

The right to material welfare of citizens who, not by their own fault, cannot exercise the right to work is closely related to the right to work. Taking into account the decisive action of the Constitutional Court, the right to work is not a legal entitlement for admission to employment or to perform a certain function, but it is more a right to procure the means of subsistence by one’s own work.[9]

Subject of the right to work is a citizen of the Slovak Republic and for the right to material security is that citizen of the Slovak Republic, who, not by the fault of their own, cannot exercise the right to work.

As it is possible via legal regulation within the meaning of Art. 35(4) 4 of the Constitution adopt different regulation for foreigners, it is possible to admit the right to work and to adequate material security in the event of failure to perform the work also for foreigners.

The right to work is governed by Act. No. 5/2004 on employment services and on amending and supplementing certain acts, as amended (hereinafter the "Employment Services Act"). Employment Services Act provides for a system of institutions and instruments of assistance to the participants in labour market in searching or in changing the employment, education and training necessary for success in the labour market and also to the employers in filling vacancies and also regulates various contributions to the realization of the right of access to employment. The present legislation regulates the conditions for registration of the unemployed and of their cooperation with the competent authorities of the Office of Labour, Social Affairs and Family. The inventory system is linked to a system for providing the unemployment benefit. Conditions for the provision of unemployment benefit as a social insurance benefit are regulated by the Act. No. 461/2003 Coll. on social insurance, as amended.

In general, the insured, not only the citizen of the Slovak Republic, is entitled to the unemployment benefit if, in the last three years, before registration in the database of unemployed jobseekers, was insured in unemployment (i.e. paid the corresponding levies) for at least two years, unless the law provides otherwise. The period for receiving the unemployment benefit is max. 6 months. The benefit is granted in calendar days, the amount is of 50 % of the daily assessment base. The maximum amount of the unemployment benefit is also given by the law (for example, currently, the sum for the month that has 31 days is of € 820.50 and for the month with 30 days is of € 794).

The right to adequate material security

Material security as determined and the most important form of social security is a social measure addressing the particular risks of the life cycle of an individual such as birth of the child, education of the child, temporary incapacity, long-term incapacity, unemployment, death of breadwinner, accident at work and old age.[10]

The right to material security is closely linked to the natural law to preserve human dignity, which is protected by the Article 19(1) of the Constitution (everyone has the right to maintain their dignity, honour, good reputation and name). According to Art. 39(1) of the Constitution citizens have the right to adequate material security in old age and during their incapacity to work, as well as after the loss of their breadwinner. According to Art. 39(2) anyone who is in material need is entitled to such assistance as is necessary to ensure their basic living conditions. In accordance with Art. 39(3) of the Constitution on the rights listed above provided by law.

The right to material security is therefore composed of two rights. The difference between these two rights is in the range of assistance provided, and subject.

The subjects of the right to adequate material security are only citizens, while subjects of the right to assistance are all those in material need (i.e. also foreigners).^[11]

Regarding the level of protection, the lowest is in providing assistance in the event of material need. Greater protection is in a material security in old age, incapacity to work and loss of breadwinner, because the Constitution requires that material support be adequate.

The right for material provision is contained in many laws (acts).

Adequate material security in old age

Citizens' right to adequate material security in old age is realized by three Acts. The Slovak pension scheme consists of three pillars:

- compulsory continuous pillar: organized by the Social Security Insurance Company (Act No. 461/2013Coll. on social insurance as amended (hereinafter the "Act No. 461/2003"));

- capitalization pillar: organized by commercially licensed insurance companies —pension fund management companies (Act No. 43/2004 Coll. on retirement pension saving as amended); and

- supplementary pension insurance: organized by commercially licensed companies—pension funds (Act No. 650/2004 Coll. on supplementary pension insurance as amended). The participation in the supplementary pension insurance pillar is voluntary.

For citizens not entitled to a retirement pension or those who receive it in a small amount (the Slovak Republic has no guaranteed minimum pension rate), there is applied the principle of subsidiarity, and these people fall into the "safety net" and they are entitled for the benefit in material need (for more detailed information see the Section about the assistance in material need).

The pension scheme of the Slovak Republic (i.e., participation in the first two pillars) is based on obligatory contributions from every employer and employee as part of their social security contributions (there exist certain categories of persons who have special regulations regarding pensions, e.g. police officers, fire brigade members). With regard to the participation in the second (capitalization) pillar, the participation in the capitalization pillar is voluntary (in general for employees younger than 35 years). Participation in the third pillar is voluntary for all employees.

Obligatory contributions to retirement pension insurance are determined at 18% of the assessment base (i.e. gross monthly wage of the employee) and are divided between employees and the employer (the employee contributes 4% and the employer 14%). If an employee takes part only in the first pillar, all contributions are paid to the Social Security Insurance Company. If an employee takes part also in the second pillar (capitalization), the contributions are divided between the first (14%) and second pillar (4%).

The first pillar is continuously funded, defined-contribution pension system, which means that only the person who achieves income to pay contributions, is participating in a compulsory pension scheme. If there is a lack of income for the insured during certain periods (e.g., prolonged illness, unemployment), this will negatively influence the amount of the pension benefit. At the same time, this system does not guarantee minimum amount of pension benefits. It can be noted that this system is determined by a strong principle of merit, which undermines the principle of social security of the individual.

The insured person is entitled to a retirement pension if s/he has had the pension insurance at least for 15 years and has reached retirement age (there are listed only general terms without specific cases). Retirement age is 62 years of age of the insured person (man and woman), unless provided otherwise (in the transitional period - from 2004 to 2014, the retirement age for women was under 62 years and depended on the number of children raised).

 In addition to retirement pension, the Act No. 461/2003also provides for early retirement pension. The insured person is entitled to an early retirement pension if to the date from which s/he claims it (in general),

a) was pension insured for at least 15 years,

b) needs only maximum two years until they reach retirement age and

c) the early retirement pension amount is more than 1,2 times higher than the subsistence minimum for one adult natural person under a special regulation.

 

Adequate material security during the incapacity to work

Incapacity to work due to health reasons may be of two types: short-term or long-term. Depending on the type of incapacity there are provided other Social Security benefits. Since it is an insurance relationship, there are entitled the insured, not just the citizens of the Slovak Republic, if they comply with the conditions of the Act No. 461/2003.

Sickness allowance

Sickness allowance is sickness insurance benefit. The insured is entitled for it if s/he complies with the conditions laid down by law. The insured is entitled to sickness allowance, if s/he has been due to the illness or injury recognized as temporarily incapable of performing their employment or under quarantine under a special regulation (temporary incapacity to work).

An employee is entitled to sickness allowance from the 11th day of temporary incapacity (first 10 days there is paid compensation by the employer). Compulsory sickness insured self-employed persons and voluntary sickness insured persons are entitled to sickness allowance from the first day of temporary incapacity. Entitlement to sickness allowance shall cease on the day following the end of the temporary incapacity, no later than on the end of the week 52^nd since the creation of temporary incapacity, if the law does not provide otherwise.

The benefit is granted in calendar days, the amount is generally of 55 % of the daily assessment base (however, there are exceptions). The maximum amount of benefit is also given by law, and the Social Insurance pays to the insured the sickness allowance at a maximum of € 677 per month (31 - day month), respectively € 655 per month (30 - day month).

Occupational Injuries Benefits

If during the employee´s performance of work tasks or in direct connection with it there has occurred an injury or accident leading to the employee´s damage of health or resulting in the employee´s death (accident at work), the responsible for resulting damage is the employer for whom the employee was working at the time of the accident in employment. For damage caused to the employee by occupational disease the responsible is employer for whom the employee last worked in employment relationship prior to finding the damage, under the conditions that give rise to occupational disease, which s/he is suffering for. List of occupational diseases is listed in the Act No. 461/2003 Coll.

Within responsibility for accidents at work and occupational diseases the Labour Code governs only property damage. The other specific claims are regulated by the Act No. 461/2003 Coll. (for the purposes of this responsibility the employer is under this Act compulsory insured against accidents); accident insurance provides the following benefits: accident extra-allowance, injuries pension, on-off compensation, accident pension for remaining relatives, one-off indemnity, occupational disease rehabilitation and rehabilitation fee, retraining and retraining allowance, compensation for pain and compensation for loss or difficulty of social interaction, refund of the cost of medical treatment, refund of costs associated with a funeral ceremony.

Invalidity pension

According to the Act No. 461/2003 the insured (not only citizens) is entitled to an invalidity pension if they became disabled, obtained the statutory number of years of pension insurance and to the date when they became invalid, they do not meet the conditions for entitlement to a retirement pension or were not granted early retirement pension. The insured person is invalid if because of their long-term adverse health condition experiences a decrease in earning capacity by more than 40 % compared to a healthy individual. A long-term adverse health condition is such a medical condition that causes a decrease in earning capacity and according to medical knowledge will last longer than one year.

The rate of decline in earning capacity percentage is determined by the type of disability, which is the decisive cause of the long-term adverse health condition, and having regard to the seriousness of other disabilities. A certain problem with the amount of the invalidity pension is that the individual percentages of reduction of earning capacity must not be aggregated in the same individual.

 

Adequate material security in the case of losing a breadwinner

Widow's pension

According to the Act No. 461/2003 a widow is entitled to a widow's pension for her husband, who (in general)

a) to the date of his death was a beneficiary of a retirement pension, invalidity pension or entitled to early retirement pension,

b) to the date of his death, fulfilled the conditions for a retirement pension or obtain the number of years of pension insurance for entitlement to invalidity pension, or

c) died as a result of an accident at work or occupational disease.

The widow is entitled to payment of a widow’s pension for one year from the death of her husband. After this period, the widow is entitled to payment of a widow's pension if (in general)

a) she takes care of a dependent child,

b) is invalid because of a decline in earning capacity by more than 70 % or

c) raised at least three children,

d) is not less than 52 years old and raised two children,

e) reached the age of retirement.

The entitlement to a widower’s pension after the wife has the same conditions. The amount of the widow's / widower's pension is of 60 % of the retirement pension or invalidity pension to which he/she would be entitled or the deceased husband / wife to the date of their death.

The orphan's pension

Entitlement to an orphan's pension has (in general) a dependent child whose parent or adoptive parent died, if the parent or adoptive parent was a beneficiary of a retirement pension or invalidity pension to the date of their death, or was entitled to early retirement pension or to the date of their death obtained the number of years of pension insurance for entitlement to invalidity pension or qualify for a retirement pension, or died as a result of an accident at work or due to an occupational disease. The entitlement to an orphan 's pension shall cease to the date when the child reaches 26 years of age.

The orphan's pension is of 40 % of the retirement pension or invalidity pension to which the parent or adoptive parent was or would have been entitled and by whose death there arose entitlement of a dependent child to an orphan's pension.

 

Anyone who is deprived from material subsistence is entitled to such assistance that is necessary to ensure basic living conditions

Assistance in material need can be simply reported as "safety net" built on the principle of subsidiarity - if a person is unable to obtain the means of subsistence and is not entitled to benefits from other social security systems, has the opportunity to receive assistance in material need.

Regarding the scope of the aid, it does not depend on individual needs and concepts of the dependent person, but it depends on rating (acceptable by society) - which living conditions are basic and what measures are necessary to achieve them.^[12]

Issues of material need are regulated by the Act. No. 417/2013 Coll., on assistance in material need and on amendments to certain laws (effective from 1^st January of 2014).

This Act regulates the legal relations in providing assistance in material need and the specific contribution and the one-off contribution. The law applies to a citizen of the Slovak Republic, who is resident of the Slovak Republic and to a foreigner residing on the territory of the Slovak Republic in accordance with special legislation or international agreement by which the Slovak Republic is bound to provide this assistance.

Material need (deprivation) is a condition where the income of household members under this Act is below the subsistence level determined by special regulation and household members are unable to or cannot either by work, or by exercising their property rights or other rights to property or claiming provide an income or increase their income. Basic living conditions for the purposes of this Act are one hot meal per day, necessary clothing and shelter (housing).

Material need is determined by assessing the income, property and opportunities of the claims of the members of a household (the Act specifies detailed examination of the conditions of material deprivation).

Assistance in material need consists of the following benefit:

- Benefit in material need (hereinafter referred to as "benefit") ,

- Protection benefit,

- Activation benefit,

- Dependent child benefit,

- Housing Benefit.

Given that the amount of assistance in material need depends on various factors, for illustration we only present an overview of assistance in material need. The benefit is intended to ensure basic living conditions. The amount of the benefit depends on the number of jointly assessed persons. For an individual the benefit is of € 61.60 per month. The benefit for each dependent child is of € 17.20 per month. The housing benefit is € 55.80 per month in the case of a household with one member of the household. Stated in a simplified way, the roles of the government in the area of ¿¿assistance in material need are performed by the Offices of Labour, Social Affairs and Family.

The living wage, which determines the material need assistance as well as various other benefits, is governed by law, concretely by the Act No. 601/2003 Coll. on subsistence minimum and the amendment of certain acts as amended.

Living wage within the meaning of this Act shall be deemed a socially recognized minimum level of personal income, under which there is a state of material deprivation. The amount of living wage shall be assessed according to whether it is for an individual, a jointly assessed natural person or a dependent child. The amounts shall be adjusted each July 1^st for the current calendar year. As an example we provide living wage for an individual - for this is considered to be the sum of € 198.09 per month in the case of one adult natural person.

 

Child care

Marriage, parenthood and family are under the protection of the law and there is guaranteed a special protection of children and minors in Art. 41(1) of the Constitution. Subsequently, the Art. 41(2) of the Constitution guarantees special care, protection in employment and appropriate working conditions for a woman during pregnancy.

According to Art. 41(5) of the Constitution parents who are raising children are entitled to assistance from the State. Details about the rights referred to in Art. 41(1-5) of the Constitution under Art. 41(6) of the Constitution are provided by law. The content of this positive obligation of the state are the measures aimed to actively promote marriage and to meet its essential target mission - to start a family and raise children within it. In supporting this objective there appears an obligation of the state to create a suitable legal environment.[13]

Material assistance to a family consists of both Social Security benefits – parental leave as well as state social assistance - parents are provided regular benefits, regardless of their income, because they are intended to parental care of children.

Maternity benefit

Generally stated, insured woman who is pregnant or is caring for a newborn child is entitled to maternity benefit if the last two years before the birth she paid sickness insurance for at least 270 days. She is entitled to maternity benefit for a period of maternity leave which is for a period of 34 weeks if the Act No. 461/2003does not provide otherwise; it is 37 weeks for the insured woman who is a single parent and 43 weeks for the one that gave birth to two or more children (the father of the child can also be entitled to maternity benefit under the terms of the law, or another insured person who took the child into care, but the period for receiving the benefit is, however, 6 weeks shorter than of the insured woman, who gave birth to the child). Receiving the maternity benefit copies the period of the maternity leave under Section166(1) of the Act no. 311/2001 Coll., the Labour Code, as amended (hereinafter the "Labour Code").

Maternity benefit is provided and calculated for the days and its amount is of 65 % of the daily assessment base. Currently, the maximum maternity benefit is of € 800 per month (31-day month), respectively of € 774 per month (30-day month).

Parental allowance

If the parent of a child was not insured for sickness and was not entitled to maternity benefit, s/he is entitled to parental allowance during maternity leave under Section 166(1) of the Labour Code.

After maternity leave, a parent under Section 166(2) of the Labour Code can take parental leave up to 3 years of age of the child, or up to 6 years of child´s age, in the case of child´s adverse health condition requiring special care and during this period is entitled to parental allowance.

Parental allowance is state social benefit, governed by Act No. 571/2009 Coll., on parental allowance and on amendments to certain laws, as amended.

In general, the beneficiary - child's parent is entitled to parental allowance if

- provides the child with adequate care and

- has a permanent or temporary residence in the Slovak Republic or is a person under special regulations - in terms of the Regulation No. 883/2004.

Parental allowance is of € 203.20 per month (regarding the fact that the law lays down certain modifications). The amount of parental allowance valid until December 31^st is adjusted by quotient from 1^st January which adjusts also the living wage under a special regulation.

Childhood benefit

Act No. 600/2003 on childhood benefit, as amended, provides for the provision of childhood benefit (hereinafter the "benefit") and for the provision of additional allowance to the benefit. The childhood benefit is a state social benefit, by which the state contributes towards the education and maintenance of a dependent child.

Premium allowance for the childhood benefit is a state social benefit, by which the state helps towards the education and maintenance of a dependent child, for which there cannot be applied the tax bonus under a special regulation.

In general, the beneficiary (parent of a dependent child and an adult dependent child if s/he is orphan) is entitled to the childhood benefit (in general):

- if s/he is caring for a dependent child;

- has a permanent or temporary residence in the Slovak Republic or is a person under a special regulation - under Regulation No. 883/2004.

The benefit is of € 23.52 per month. The amounts of the childhood benefit and of the premium allowance applicable until 31^st December of the calendar year shall be adjusted on 1^st January of the calendar year by the quotient which adjusts also the amount of living wage under a special regulation.

Childbirth benefit

Act No. 383/2013 Coll., on the childbirth benefit and on benefit for multiple childbirth, as amended, regulates the provision of childbirth benefit and provision of a benefit for multiple childbirth.

Childbirth benefit is a state social benefit, by which the state contributes to cover expenses related to the provision of essential needs of the new-born. In general, the beneficiary - the child's parent is entitled to childbirth benefit, if s/he is a resident and domiciled in the Slovak Republic and the child was born. Entitlement to childbirth benefit for the same child arises only once. If more children are born at the same time, there arises a claim to childbirth benefit for each child.

The amount of the childbirth benefit is of

- € 829.86 in the case of a child born from the first birth to third birth that survived at least 28 days,

- € 151.37 in the case of a child born from the fourth birth and another birth, or if is the child from the first birth to third birth, which died before 28 day period.

If there were born simultaneously two or more children and at least two of them survived 28 days, the sum of childbirth benefit increases by € 75.69 for each child who survived at least 28 days. Entitlement to childbirth benefit expires six months after childbirth.

The Slovak Government can increase the sum of the childbirth benefit and the amount of the multiple childbirth benefit to the date of September 1^st of a calendar year via a government regulation

 

The right for health protection

According to Art. 40 of the Constitution everyone has the right to health protection. On the basis of health insurance the citizens have the right to free health care and medical devices under the conditions provided for by law.

As for the subjects, only citizens who are subjects of health insurance and meet the conditions of the law, have the right to free health care.

Due to the imperfection of the legislation contained in the second sentence of Article 40 of the Constitution, within the theory we can meet with the question of whether the burden of payment for health care is to be taken by the State, since it guarantees this right to citizens, or the purpose of the Art. 40 of the Constitution is to recognize for citizens the prospect of such medical care, the cost of which will be borne by and paid by another entity of the health insurance funds (not of the state budget). The mentioned imperfection of the legislation so does not constitute grounds for legal certainty.[14]

Provision of health care and services related to health care, the rights and obligations of natural and legal persons in the provision of health care, the procedure for death and execution of the state administration in the field of health care are governed by Act No. 576/2004 Coll., on health care, services related to health care and on amendments to certain laws, as amended.

Range of health care covered by public health insurance under the conditions stipulated by special regulations and payments for services related to health care are governed by Act No. 577/2004 Coll., on the scope of health care covered by public health insurance and payments for services related to health care, as amended.

Functioning of the public health insurance system, payment of contribution for health insurance are regulated by another law, Act No. 580/2004 Coll., on health insurance, as amended.

Status of health insurance companies as well as supervision of healthcare provision are governed by Act No. 581/2004 Coll., on health insurance companies, health care supervision and on amendments to certain laws, as amended.

According to Art. 3 of the Act No. 580/2004 Coll., compulsory publicly insured person (in general) is a natural person who has permanent residence in the Slovak Republic, regarding the exceptions provided in this Act as well as the natural person who does not have permanent residence in the Slovak Republic, and is not medically insured in another Member State of the European Union or in a Contracting State of the Agreement on the European Economic Area and in Switzerland, again with regard to the exceptions provided by this Act.

Free health care covered by the health insurance is based on the principle of solidarity. As each person fulfilling the conditions laid down by law, pays levies to health insurance, regardless of whether s/he is at the time of the payment of the levy in a state of dependence on health care or whether s/he will sometimes in the future need such care.[15]

The insured has the right to reimbursement of health care constituted by Act No. 580/2004 Coll. (if there are fulfilled the conditions given by this Act) to the extent stipulated by special regulations.

 

3. The constitutional regulations′ impact on the content of social security rights in the domestic legal system

As mentioned in the introduction, specific scope and content of social security rights are regulated by law, the Constitutional Court within its decision-making activities has not given yet a framework for the content of social security rights. It addressed, however, certain aspects of these social security rights by which at least partially defined those rights. Here we present fundamental points of the Constitutional Court of the Slovak Republic as well as the opinions of professional community expressed on social rights. Given the range of this study we only list some important comments.

Assistance in material need

As mentioned above, the material need assistance consists not only of benefits, but also of other forms of assistance. To obtain these additional forms of assistance an individual needs to develop a certain form of activity (e.g. through activation works for the community, or by caring for family members). In summary, the provision of material need assistance should reach the level of living wage. There happens, however, that some individuals are not able to realize legally planned activities for obtaining various forms of assistance in material need (e.g. medical reasons) and often are entitled only to a benefit in material need, which is for an adult person - an individual of € 61.60 per month, while the amount of the subsistence minimum for an individual is of the amount of € 198.09 per month. Such regularization is therefore the target of criticism.

The right to health protection

In relation to the provision of health care there are discussed, in particular, the questions on the range and content of its gratuitousness. Given that fact, the health insurance companies have the status of companies - joint-stock companies; there resonates the question whether the provision of health care is a business activity and if the health insurance companies can make a profit. These issues were therefore addressed also by the Constitutional Court.

Range and gratuitousness of the provision of health care

In accordance with the decision of the Constitutional Court the right to health protection as a fundamental right of a citizen is to some extent, modified by the constitution and provided to the citizen, free of charge. Conditions for the free provision can only be modified by law, which is a guarantee of the citizen´s legal certainty.[16]

From the decision-making activities of the Constitutional Court can be stated that the constitutional concept of free health care and medical devices based on health insurance finds its legal expression in the concept of health care by public health insurance.^[17] The Constitutional Court of the Slovak Republic addressed the issue of the scope of cost-free health care and medical devices and stated that the mere existence of health insurance excludes that all health risks were insured (i.e. that the gratuitousness was absolute), but only those which are recognized as claims. The provided health care under this insurance is not boundless, but limited by law within established conditions, i.e. within scope and content of health care covered by health insurance. Should it not be so, the legislator of the Constitution would not “limit” the provision of free health care by the health insurance, but would "generously", on the basis of full and universal solidarity guarantee the provision of free health care for all, respectively, for "everyone" (however, neither in this case is absolutely free, because the state would acquire the funds for its provision through other sources, most likely through a universal tax system without further obligation to the patient's participation - the insured at some type of insurance). Subsequently, it was stated that the provision of any content of health care covered by public health insurance, i.e. „adjustment of insurance claims" and determination of its scope is necessarily conditioned by the society possibilities and sustainability of the health insurance system. [18]

The Constitutional Court also adopted a legal interpretation that the law may determine the extent of healthcare to which citizens will not have free access. Thus, the right to health protection is granted to any person, but access to it is being implemented through health care, which is only for Slovak citizens participating in the free health insurance in statutory limits. The Constitution of the Slovak Republic therefore implies that the law separated the cases for which the compulsory sickness insurance will pay for patients (amount of insurance) and cases which are covered by insurance only partially, or which are not covered at all.^[19]

Provision of health care as a business activity and profit of health insurance companies

The health insurance company is under Section 2 of Act No. 581/2004 Coll., a joint-stock company with its seat in the territory of the Slovak Republic established for the implementation of public health insurance (Act here refers to Section 56(1) 1 of the Commercial Code, under which a company is a legal entity, established for business purposes. Company with limited liability and joint-stock company may also be based for any other purpose, unless prohibited by a special law) based on the permission to the implementation of public health insurance and must not engage in activities other than activities relating to health insurance (Section 6 Act No. 581/2004 Coll.)

Given that this provision explicitly declares that the health insurance company carries out the public health insurance and also refers to the Commercial Code, there is not complexly solved yet the legal nature of health insurance – i.e., whether they can carry out business activities as usual companies.

Specificity of free health care (its purpose and nature) in the opinion of the Constitutional Court is also due to the fact that health insurance is one of such social relationships, which are excluded from the competition and can be evaluated as (non-business) service in public interest aimed at application of constitutional rights of the individual.[20] The Constitutional Court, however, subsequently granted the right to health insurance companies to carry out business activities. It considers health insurance companies as legal entities performing public health insurance as a business for profit. [21]

 

4. Threats to social security rights in time of economic crisis

It can be noted that the effects of the economic crisis are reflected also in the system of material security. As the Constitution leaves the content and scope of social security rights in the hands of legislator, the specific conditions of each material security benefits and their amount do not get into non-compliance with the Constitution. In relation to benefits provided under adequate material security, the conditions for their provision may not be changed retroactively, as the real retroactivity is unacceptable, only for the future. In view of the economic crisis it may be noted that some of the benefits were change due to it. We present them briefly.

The right to material security

The original legislation of the Act No. 461/2003 Coll. allowed the beneficiaries of early retirement pension to perform a gainful employment, i.e. to work. Given that many of these beneficiaries took the new opportunity and claimed the early retirement pension for purpose, the legislator abolished this option since 2011 (and also due to the reduction of the high government deficit). However, old-age pensioners can work without any restrictions. The condition for being entitled to payment of an early retirement pension is non-enforcement of employment, of which the person is mandatory pension-insured. A natural person must therefore decide whether to receive an early retirement pension or will engage in gainful employment.

As mentioned above, the obligatory contributions to retirement pension insurance are set at 18% of the assessment base. If an employee takes part also in the second pillar (capitalization), the contributions are divided between the first (14%) and second pillar (4%).

Initially, however, the ratio was 9 % and 9 %, but due to the lack of funding, this ratio changed in favour of the Social Insurance Company in 2012.

The right to health protection

In general it can be stated that the economic capacity of the state is related to the extent of free health care and services related to health care. Therefore, the determination of the scope of them is left to the legislator, and can be adapted to the current situation and possibilities of the state. Possibility of such a modification was declared also by the Constitutional Court of the Slovak Republic, which held that "the provision of any scope of health care covered by public health insurance, i.e. "adjustment of insurance claims" and determination of its content and scope is necessarily conditioned by possibilities of the society and by the sustainability of the health insurance system."[22] 

In times of crisis there can be seen efforts to increase contributions to public health insurance, as well as efforts to reduce the amount of contributions for state-insured and finally reduce the range of available free healthcare, as the state tolerates the possibility of the health insurance companies to make a profit from the resources that are recollected by the insured persons under the statutory obligation of the insured.[23] The State usually changes the rate for its insured (reducing it) according to its decision for a period of one year during the adoption of the state budget and it enshrines this rate in the transitional provisions of Act No. 580/2004 Coll.

 

5. Assessment of the future of social security rights in lights of the Constitution

Studying the constitutionality of the current legislation on social rights by the Constitutional Court of the Slovak Republic still arises several questions. One of the questionable aspects is whether even the Constitutional Court may review the economic and social rights realized by the legislation, since it does not have sufficient information about the current overall economic situation of the Slovak Republic and the economic and social rights are closely linked with the economy of the state and the constitutional judges are not experts in economics.

Specific provision of economic and social rights depends mainly on the economic situation of the country, which is declared also by the fact that even during the existence of a left-wing government, there appears reduction of the legal protection of social rights.

When examining social rights, opinion of some judges is that there should not be a reduction of protection of social rights due to Article 1 of the Constitution, under which the Slovak Republic is a sovereign, democratic country and Rechtsstaat. It will therefore be interesting to follow the development of decision-making activities of the Constitutional Court of the Slovak Republic.