Constitutional Court

KO157/18, Applicant:  The Supreme Court of the Republic of Kosovo, constitutional review of Article 14, paragraph 1.7 of the Law No. 03/L-179 on Red Cross of the Republic of Kosovo 

KO157/18, Judgment rendered on 13 March 2019, published on 29 March 2019

Keywords: institutional referral, the Supreme Court of the Republic of Kosovo, constitutional review of Article 14, paragraph 1.7 of the Law on Red Cross, admissible referral, the incompatibility of Article 14, paragraph 1.7 of the challenged Law with Articles 24, 46 and 119 of the Constitution.

This Referral was submitted by the Supreme Court of the Republic of Kosovo, pursuant to Article 113.8 of the Constitution. The Applicant requested the Constitutional Court the constitutional review of Article 14, paragraph 1.7 of the Law on the Red Cross, raising doubts as to its incompatibility with Articles 24 [Equality Before the Law], 46 [Protection of Property], 119 [Economic Relations] and 120 [Public Finances] of the Constitution of the Republic of Kosovo (hereinafter: the Constitution).

The essence of the Referral of the referring court, also referring to the allegations of the “Illyria” Company presented before it, consisted in the allegation that paragraph 1.7 of Article 14 of the challenged Law, which obliges the insurance companies in Kosovo to pay (1%) of the gross prim value of insured vehicles insurance and which does not foresee any obligation to contribute to other companies in Kosovo, placed insurance companies in a discriminatory position in relation to other companies, contrary to the principle set out in paragraph 2 of Article 119 of the Constitution [General Principles], which provides that “The Republic of Kosovo shall ensure equal legal rights for all domestic and foreign investors and enterprises”.

The Court first examined whether the Referral has fulfilled the admissibility requirements established in the Constitution, further specified in the Law and the Rules of Procedure.

After having assessed all Applicant’s allegations, the Court considered that although the legislator, by limiting the rights, aimed at achieving an aim that is in line with the general social interest, however it was not clear why the lawmaker did not extend and distribute the financial obligation established by the provision of the challenged law also to other economic entities, but only to the insurance companies that provide this type of insurance. Thus, the Court noted that neither the Assembly nor any other relevant instance, presented any consistent reasoning as to why the challenged law obliges only the insurance companies to contribute to the financing of the Red Cross. The Court further considered that, if the payment provided for by the provision of the challenged law would be reasonably and proportionately distributed to all economic entities, this would be in accordance with the requirements of Article 24 [Equality Before the Law] of the Constitution, with the equal position in the market guaranteed by Article 119 of the Constitution, as well as with the requirements of paragraphs 4 and 5 of Article 55 of the Constitution.

In the light of the foregoing considerations, the Court considered that the obligation of only insurance companies to pay the determined amount from the income collected from the motor liability insurance as a contribution to the Red Cross budget, is not justified, namely it is not based on objective reasons. Consequently, there is no legitimate aim that would justify the unequal treatment of motor insurance companies.

In this respect, the Court considers that as a consequence of unequal treatment of insurance companies in relation to other companies in Kosovo, and by taking into account that the payment by insurance companies of one percent (1%) of the amount of the gross vehicle prim reduces the wealth of insurance companies, paragraph 1.7 of Article 14 of the challenged law also does not comply with the right of property, according to Article 46 of the Constitution.

The Court also recalled that the referring court also raises the issue of compliance of the challenged law with Article 120 [Public Finances] of the Constitution. However, having in mind that the Court found a violation of Articles 24, 46 and 119 of the Constitution, it does not find it necessary to assess the compliance of the challenged law with Article 120 of the Constitution.

In sum, the Court concludes that paragraph 1.7 of Article 14 of the challenged Law is not compatible with Article 24 [Equality Before the Law], Article 119 [General Principles] and Article 46 [Protection of Property] of the Constitution.