Constitutional Court

KO139/18 , Applicant: Municipality of Skënderaj, Constitutional Review of the Collective Sectoral Contract No. 05-3815, of 12 June 2018

KO139/18, Resolution adopted on 30 September 2020, published on 12 November 2020

Keywords: institutional referral, municipal budget, jubilee salaries, collective contract, inadmissible referral.

In the circumstances of the present case, the Municipality of Skënderaj challenges the Collective Sectoral Contract (CSC) signed between the Ministry of Health and the Trade Union Health Federation of Kosovo on 12 June 2018. This Contract, in Article 17, had determined the payment of jubilee rewards for health workers, also stipulating that the respective amounts shall be paid by the last employer. The Applicant challenges this provision before the Court, alleging that it is contrary to paragraph 3 of Article 124 [Local Self-Government Organization and Operation] of the Constitution and paragraph 3 of Article 18 (Delegated Competencies) of Law no.03/L-040 on Local Self Government. The Applicant alleges that the obligation of the municipality to pay the jubilee rewards constitutes an additional financial burden for the municipality, contrary to the constitutional and legal guarantees, based on which, inter alia, the authority delegating the competence also transfers the obligation to cover the financial cost.

With regard to the allegations of the Applicant, the Court also considered the views of (i) the Ministry of Health; (ii) the Trade Union Health Federation; and (iii) the Ministry of Finance. The first, namely the Ministry of Health, mainly argued that (i) the CSC derives from the General Collective Agreement of Kosovo of 18 March 2014; (ii) the obligations for the payment of jubilee rewards derive from the General Collective Agreement and not from the challenged CSC; and (iii) based on the Law on Local Self Government, the circumstances of the present case are not related to the competencies delegated to the municipal level but rather to the implementation of Law No. 03/L-212 on Labor and General Collective Agreement of Kosovo.

In assessing the Applicant’s allegations, the Court initially stated that referrals submitted to the Court pursuant to paragraph 4 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, must meet the following constitutional requirements: (i) The Municipality must challenge the constitutionality of a law of the Assembly or an act of the Government; and (ii) The Municipality must argue that the challenged law or act violates municipal responsibilities or reduces its revenues. Therefore, the Court emphasized that in assessing the admissibility of the respective Referral, the most essential issue is the assessment of whether in the circumstances of the present case, a “Government act” is challenged before the Court.

In this context, the Court stated that (i) in the circumstances of the present case, an agreement signed between two parties is challenged, on the one side the Ministry of Health and on the other side the Trade Union Health Federation, respectively the Collective Contract signed at branch level , as defined by the Law on Labour; (ii) The Ministry of Health is only one party to the Agreement, respectively the challenged act, and consequently, the latter does not derive from the decision-making of the Government, but it is the result of a bilateral agreement based on the Law on Labour and the General Collective Agreement of Kosovo; and (iii) based on the comparative analysis of the Constitutions of the region and the case law of the respective Constitutional Courts, such agreements may not be reviewed by the Constitutional Courts before the legal remedies have been exhausted in regular proceedings, unless the respective Constitutions specifically define the jurisdiction of the Constitutional Courts to review the constitutionality of Collective Agreements or if they enable the respective Constitutional Courts to review “other acts” which do not necessarily qualify as acts of the Government. Based on the above mentioned observations, the Court found that the Applicant does not contest a “Government act” as required by paragraph 4 of Article 113 of the Constitution, and consequently it is not necessary to also assess whether the Collective Agreement may have violated municipal responsibilities or reduce its revenues because the first criterion of a cumulative test defined by the above mentioned article is not satisfied.

Finally, based on its case law related to cases filed pursuant to paragraph 4 of Article 113 of the Constitution, the Court also noted that even if the Municipality of Skënderaj had submitted a referral for constitutional review of the assessment of the constitutionality of the CSC, in its capacity of as a legal person and based on paragraph 7 of Article 113 of the Constitution, such referral would have been inadmissible due to non-exhaustion of legal remedies, because (i) based on paragraph 9 of Article 90 of the Law on Labour, for the resolution of various disputes by the representatives of employers, employees and the Government in the capacity of social partners, the Social-Economic Council is competent; and (ii) based on paragraphs 1 and 2 of Article 32 of the CSC, disputes between parties are initially resolved through “mutual consultations and dialogue” and in the contrary, through the “Competent Court in Prishtina”.

Consequently and in conclusion, based on paragraphs 1 and 4 of Article 113 [Jurisdiction and Authorized Parties] of the Constitution, Article 40 (Accuracy of the Referral) of the Law and paragraph 1 of Rule 73 (Referral pursuant to Article 113.4 of the Constitution and Articles 40 and 41 of the Law) of the Rules of Procedure, the Referral of the Applicant was declared inadmissible for review of its merits.