Maternity Pay Shall Be Recalculated in Case Errors Occurred
On 6 June 2017, the Constitutional Court of Moldova ruled on an exception of unconstitutionality of certain provisions of the Law no. 289 of 22 July 2004 on indemnities for temporary work incapacity and other social insurance benefits and the Regulations on the conditions of establishing, procedure of calculating and making the payment of indemnities for temporary work incapacity, approved by the Government Decision no. 108 of 3 February 2005.
Circumstances of the case
The case originated in an exception of unconstitutionality of Article 7.17 of the Law no. 289 of 22 July 2004 on indemnities for temporary work incapacity and other social insurance benefits and para. 89 of the Regulations on the conditions of establishing, procedure of calculating and making the payment of indemnities for temporary work incapacity, approved by the Government Decision no. 108 of 3 February 2005.
The exception of unconstitutionality was raised by the lawyer Vasile Iamandii in the case no. 3-1775/16 pending before the Court of Law of Chișinău, headquartered in Central District.
According to Article 7.17 of the Law, indemnities of social insurance provided by Article 5, para.1, letters a), b), d), f) and g) and Article 15, para. 1, let. a), established under this law, may not be recalculated, except for cases related to legislative amendments on salary payments. The same provisions are found in para. 89 of the said Regulations approved by the Government.
The author of the complaint claimed that errors of calculation in establishing the indemnity of social insurance and the impossibility to recalculate them due to the challenged provisions is in breach of the right to social assistance and protection and maternity enshrined in Articles 47, 49 and 50 of the Constitution.
The complaint was examined by the Constitutional Court of Moldova in the following composition:
Mr Tudor PANȚÎRU, President,
Mr Aurel BĂIEŞU,
Mr Igor DOLEA,
Mrs Victoria IFTODI,
Mr Victor POPA,
Mr Veaceslav ZAPOROJAN, judges.
Conclusions of the Court
Examining the casefiles and hearing the reasoning of the parties, the Court noted that by the guarantees of social protection provided by Article 47 of the Constitution, the State protects and health and welfare of the citizens, granting them social assistance in cases provided for by the law.
In its caselaw, the Court noted that the Constitution does not guarantee a concrete level of social insurance. Furthermore, social insurance does not have an unconditioned nature and the lawmaker is entitled to provide for specific conditions in exercising social rights. At the same time, the established legal provisions may not contradict constitutional principles.
The Court found that under the law, a form of social insurance benefits – provided for the loss of working capacity – is the maternity pay. The raison d'être of prescribing by law for “maternity pay” derives from the constitutional guarantees enshrined in Articles 47 and 49 of the Constitution, thereby maternity enjoys a special protection from the State.
The Court mentioned that under Article 7.1 of the Law on indemnities for temporary work incapacity and other social insurance benefits, the calculation basis of social insurance benefits is the insured monthly average income for the last 12 calendar months prior to the materialisation of the insured risk – the income from which were calculated the individual contributions of social insurance.
Paragraph (17) of the impugned article provides that social insurance benefits, established under the law, including the maternity pay, may not be recalculated, except for cases related to the amendments of legislation on salary payment.
The Court found that in this case there was criticised the fact that certain amounts of the income were not included in the calculation basis of the maternity pay and the competent authority declined to adjust the amount of the fixed indemnity, reasoning with the challenged provision, which institute a ban on recalculations in case the indemnity has already been established.
The Court reiterated that social insurance is a subsystem of the social protection system, which is instituted and guaranteed by the State and which is grounded on the principle of contributivity. By making his contributions of social insurance, the beneficiary is indirectly building up the amount of his indemnity.
In this regard, the Court noted that banning the recalculation of the indemnities of social insurance, as a result of an error having been committed, it may substantially affect the amount of the indemnity a person contributed to the social insurance budget by the amounts previously paid.
At the same time, the Court observed that when the beneficiary was paid a greater amount than that provided under the law, the rights of the State are redressed. In this regard, Article 32 of the Law provides that the extra amount are returned either by the persons in charge of submitting the data or of establishing the indemnity or by the beneficiary in case he submitted false acts.
Moreover, the Court underlined that in line with Article 53 of the Constitution, an individual prejudiced by a public authority by an administrative act is entitled to obtain acknowledgement of the declared right, cancellation of the act and payment of damages.
In the context of the abovementioned, the Court concluded that the erroneous interpretation [of the challenge provisions - TN] by the National Authority of Social Insurance has led to a wrong administrative practice concerning the recalculation of the established indemnity in case an error has been committed, which is in breach of Articles 47, 49, 50 and 53 of the Constitution.
Judgment of the Court
Stemming from the above reasoning, the Constitutional Court of Moldova:
1) Rejected the exception of unconstitutionality;
2) Declared as constitutional Article 7.17 of the Law no. 289 of 22 July 2004 on indemnities for temporary work incapacity and other social insurance benefits and para. 89 of the Regulations on the conditions of establishing, procedure of calculating and making the payment of indemnities for temporary work incapacity, approved by the Government Decision no. 108 of 3 February 2005, to the extent the ban on recalculating social insurance benefits is not applicable in case error occurred in determining the calculation basis of the indemnity.
This judgment of the Constitutional Court of Moldova is final, cannot be subject to any appeal, shall be effective from the date of passing and shall be published in the Official Journal of Moldova.
This is an English language courtesy translation of the original press-release in Romanian language.