Magyar Közlöny Hungarian Constitutional Court (Official Gazette) 56/1995

The Constitutional Court declared that the partial shifting of burdens to insured persons and to employers on the grounds of difficulties encountered in the operation of the social security system is not necessarily unconstitutional provided that it is proportionate and that the reasons behind it are constitutional. In such matters, however, it is a constitutional requirement that those concerned learn of the risk of such a shift in burdens early enough to be able to calculate further risks and to make arrangements for insurance cover.

Summary by the Venice Commission

According to the amendments to the Economic Stabilisation Act, anyone who is not eligible for sick leave under the Labour Code shall be entitled to sickness benefit at the earliest following the twenty-fifth day of his/her certified disability in a calendar year. The Labour Code amended by the same Act entitles the employee to 25 working days' sick leave in each calendar year for the period of disability due to sickness, during the first five days of which the employee shall not be entitled to remuneration, whereas the employer must pay 75 % of the absence fee to the employee for the remaining period of the sick leave.

The Constitutional Court did not examine the merits of the petitions because, in the Court's opinion, the provisions providing for the immediate entry into force of the law promulgated on 15 June 1995 as from 1 July are in themselves unconstitutional. The Court therefore annulled these provisions and declared that the amendments should not come into force on 1 July.

As a matter of principle, the Constitutional Court pointed out that irrespective of whether the shift of coinsurance to the insured was strikingly disproportionate, the introduction of the rules with immediate effect constituted such a significant withdrawal of guarantees with respect to the insured that their social security entitlements were weakened to a constitutionally unacceptable extent. The State guarantees the disbursement of social security benefits even if its expenditure exceeds its revenue. This underlying State guarantee would be terminated owing to the fact that the change also has an unexpected effect on employers, and there is no assurance that employers will actually fulfill their obligation to pay employees. The change also amounts to a withdrawal of the rights of the insured, because its unexpectedness endangers their social security rights as guaranteed by the Constitution.