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Principles and standards Archives: Non-retroactivity

Constitutional Case No. 15 of 2010, State Gazette Issue 91, p. 3

On 11/11/2010 in

Year: 2010 (Date of Decision: 11 November, 2010)

Forum, Country: Constitutional Court; Bulgaria

Standards, Rights: Non-retroactivity; Rule of law; Welfare State; Right to decent work

Summary Background: This case addressed two independent applications, one by the President of Bulgaria and the other by 51 parliamentarians, seeking a declaration that para. 3 of the transitional provisions and articles 176.3 and 224.1 of the Labour Code, and articles 59.5 and 61.2 of the law on state officials, are unconstitutional and contrary to treaties to which Bulgaria is party, including the ICESCR. These provisions amended entitlements to untaken paid leave prior to the provisions’ entry into force.

Holding: The Constitutional Court held that para. 3 of the transitional provisions of the Labour Code and para. 8(a) of the transitional and final provisions of the law on state officials were contrary to articles 57.1, 16, 48.1 and 48.5 of the Constitution of Bulgaria; indent 5 of the Preamble to the Constitution of Bulgaria, articles 2.1 and 24 of the UDHR, and article

1. Every person to whom this Convention applies shall be entitled after one year of continuous service to an annual holiday with pay of at least six working days. 2. Persons, including apprentices, under sixteen years of age shall be entitled after one year of continuous service to an annual holiday with pay of at least twelve working days. 3. The following shall not be included in the annual holiday with pay: (a) public and customary holidays; (b) interruptions of attendance at work due to sickness. 4. National laws or regulations may authorise in special circumstances the division into parts of any part of the annual holiday with pay which exceeds the minimum duration prescribed by this Article. 5. The duration of the annual holiday with pay shall increase with the length of service under conditions to be prescribed by national laws or regulations.
of ILO Convention No. 52, which protect the interdependence of fundamental rights, the right to work, the right to leave and the principle of the welfare state.

The Constitutional Court dismissed the application for unconstitutionality of article 176.3 of the Labour Code and article 59.5 of the law on state officials because the articles’ stipulation that the right to paid annual leave lapses two years after the leave is granted extinguishes the exercise of the right to leave rather than the right itself.

The Constitutional Court found that article 224.1 of the Labour Code and article 61.2 of the law on state officials violated article

A person dismissed for a reason imputable to the employer before he has taken a holiday due to him shall receive in respect of every day of holiday due to him in virtue of this Convention the remuneration provided for in Article 3.
of ILO Convention No. 52, as well as the principle of the rule of law for contradicting articles 48.5 and 176.3 of the Labour Code, in light of the right to work enshrined in articles 16 and 48.1 of the Constitution of Bulgaria.

Additional Comments: The extent to which the Constitutional Court accounts for European and international legal documents is of interest.

Link to Full Case: Summary by the Constitutional Case Law InfoBase of the Venice Commission: http://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/bul/bul-2010-3-003

Full judgement (only available in Bulgarian): http://dv.parliament.bg/DVWeb/broeveList.faces

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