Constitutional Court

KI 67/20, Applicant: KOSOVO ENERGY DISTRIBUTION AND SUPPLY COMPANY “KEDS” J.S.C., Constitutional review of Judgment Ac. No. 1674/2019 of the Court of Appeals of 18 December 2019

KI 67/20, resolution on inadmissibility of 9 September 2021, published on 18 October 2021

Keywords: legal person, individual referral, constitutional review of the challenged judgment of the Court of Appeals, manifestly ill-founded 

The Referral is based on Articles 21.4 and 113.7 of the Constitution, Articles 22 and 47 of the Law No. 03/L-121 on the Constitutional Court of the Republic of Kosovo and Rule 32 of the Rules of Procedure of the Constitutional Court.

On 11 May 2016, the Applicant due to reaching old age, retired the employee S.L. The employee S.L. submitted to the Applicant a request for payment of 3 (three) salaries on behalf of the accompanying salary for pension, as provided for in Article 53 of the General Collective Agreement of Kosovo. The Applicant rejected the request of the employee S.L., reasoning that the Applicant is not a signatory of the Collective Agreement, nor is he a member of any of the institutions that signed the Collective Agreement of 2014. S.L. filed the statement of claim with the Basic Court requesting the Applicant to pay 3 (three) monthly salaries on behalf of the accompanying salaries for pension. The Basic Court [by Judgment C. No. 641/18] approved the statement of claim of S.L. and obliged the Applicant to pay S.L. compensation in the amount of 3 (three) monthly salaries on behalf of the accompanying salary for pension,  stating, “introduction to the General Collective Agreement for Employers, and in this case for KEDS, the signatories of the collective agreement are the Employers’ Organization and the Kosovo Chamber of Commerce. While in terms of Article 2, paragraphs 1 and 3 of the General Collective Agreement, the provisions of this agreement are binding on the private sector and also apply to employers with foreign citizenship, who operate in Kosovo. In the present case, these provisions are also binding for KEDS, since, in addition to being a company with foreign citizenship after the privatization of the electricity distribution unit, it also belongs to the private sector“. The Applicant filed an appeal with the Court of Appeals against the Judgment [C. No. 641/18] of the Basic Court, the Court of Appeals [by Judgment Ac. No. 1674/19] rejected the Applicant’s appeal as ungrounded and at the same time upheld the judgment of the first instance court. The Applicant challenges the conclusions of the regular courts before the Court, alleging (i) violation of Article 31 of the Constitution in conjunction with Article 6 of the ECHR, as a result of erroneous interpretation of the law, namely Articles 52 and 53 of the General Collective Agreement of Kosovo contrary to Article 90, paragraph 5 of the Law on Labor; and (ii) a violation of Articles 3 and 31 of the Constitution. The Court, based on the standards established in its case law in similar cases and the ECtHR case law, finds that the Applicant’s allegations of a violation (i) of Article 31 of the Constitution in conjunction with Article 6 of the Convention, as a result of an erroneous interpretation of the applicable law in the circumstances of its case, constitute allegations of „fourth instance“; while (ii) regarding violation of Articles 3 of the Constitution, and 31 of the Constitution in connection with an unreasoned decision, constitute “unsubstantiated or unsupported” allegations and as such, the latter are manifestly ill-founded on constitutional basis, as established in paragraph (2) of Rule 39 of the Rules of Procedure.