LIST Decisions

Judgment Case No. Pl. ÚS 16/24 of 20 November 2024 (Salary discrimination against female judges on maternity and parental leave) – legal summary

Headnotes:

Section 31(5) of Act No. 236/1995 Coll., on the salary and other benefits related to the performance of the duties of public officials and certain state bodies and judges and Members of the European Parliament, in the text ", which does not include the periods referred to in paragraph 4", in the case of maternity and parental leave, does not stand up to the proportionality test, since it does not pursue a legitimate aim (or pursues it selectively only for certain persons on the basis of an arbitrary criterion), thereby is contrary to the prohibition of discrimination under Article 3(1) of the Charter of Fundamental Rights and Freedoms in conjunction with Article 28 of the Charter.


Summary:

I. The District Court submitted a petition to the Constitutional Court to annul part of the provision of Section 31(5) of Act No. 236/1995 Coll. The petition arose out of proceedings before the District Court, where a judge of an ordinary court brought an action against the Czech Republic seeking back pay of her salary for November and December 2023. According to the contested provision, the time spent on maternity and parental leave does not count towards the three years of service as a judge, which is conditional on promotion to the third salary coefficient. However, for those who start to practice law as a judge only after more than eight years of legal experience, maternity and parental leave has no negative effect on salary increases. According to the District Court, this is an arbitrary act of the legislator. The contested provision is contrary to the constitutional order of the Czech Republic and European Union law. Since women in the judiciary take maternity and parental leave as a matter of principle, the provision discriminates against women and parents at the same time, without any rational justification.

II. The Constitutional Court reiterated that the contested provision was introduced into the legal system at a time when the minimum age for appointment as a judge was 25 years (currently it is 30 years) and when so-called lateral entries into the judiciary, i.e. entries from professions outside the judiciary (advocates, etc.), were not regulated by law.
The Constitutional Court stated that under current conditions, the provision typically affects only women, specifically the group of women who become judges immediately after reaching the age of 30 and who take maternity and parental leave earlier than after three years in office. Although that period of experience is then included in their total period of service, it is no longer included, as a result of the contested provision, in the three years of actual service required (together with at least eight years of experience, including maternity and parental leave) to move from the second to the third salary coefficient. Those women, whose career paths can be regarded as common, cannot therefore avoid the negative effects of the contested provision. However, this was possible under the original lower age limit for appointment as a judge. In the past, if women judges were appointed after the age of 25, they did not have to postpone motherhood and were able to serve for a full three years before their ninth year of practice. Persons who become judges after eight years of experience (typically after a 'lateral' entry from the Bar, but also after longer than usual practice in the courts before appointment) are not affected by the challenged provision at all, even if they take maternity and parental leave soon after their appointment. Only the total length of their legal experience will be decisive for them, in which the period of maternity and parental leave will be counted, and the length of service as a judge will no longer affect the coefficient.

The Constitutional Court has generally accepted statutory inequality, but only if it can be justified on the basis of constitutionally acceptable considerations. Since the difference in treatment concerns the right to fair remuneration for work, and the inequality is caused by the 'suspect criterion' of gender and possibly also age, it was necessary to subject the contested provision to the three-step proportionality test (the criterion of appropriateness, the criterion of necessity and the assessment of proportionality in the narrower sense).

The Constitutional Court stated that the contested provision meets the criterion of appropriateness, as it may contribute to the legitimate aim of ensuring that new judges, before they become entitled to a higher salary, actually perform the mandate for a certain period and become thoroughly familiar with the activities performed in court. However, the contested provision has that effect only on judges whose total period of creditable experience does not exceed eight years. Those who start the mandate from their ninth year of practice (typically after "lateral" entry from the Bar, but also after longer than usual legal practice at a court before appointment) will not be affected by the contested provision at all, even if they take maternity and parental leave soon after appointment. The foregoing shows that the legislator did not choose the measure that would be most sensitive to fundamental rights, since the legitimate aim is pursued selectively only for certain persons on the basis of an arbitrary criterion, which creates unjustified differences among (female) judges. The contested provision thus failed the necessity test. For this reason, there was no longer any need to apply the last step of the test (proportionality test in the narrower sense).

The Constitutional Court concluded that the contested provision was discriminatory, thus contrary to Article 3(1) of the Charter in conjunction with Article 28 of the Charter (the right to fair remuneration for work). The Constitutional Court therefore annulled the provision.

III. The Justice Rapporteur was Veronika Křesťanová. None of the Justices dissented.