The Constitutional Court of the Federation of Bosnia and Herzegovina made a decision that workers such as freelancers will probably not be satisfied with. Namely, the Constitutional Court of FBiH rejected the request of 46 representatives of the House of Representatives of FBiH to determine the constitutionality of certain provisions of the Law on Contributions of FBiH.
With this request, the Constitutional Court of FBiH was requested to review the provisions of Article 6a, Item 11 and Article 10a of the mentioned law as well as the corresponding rulebook. In the request, they stated that they are of the opinion that this law puts people employed under an employment contract in an unequal position, who have the obligation to pay health insurance, but cannot use it compared to those people who are employed and who have the right to health insurance.
They referred to the practice of the European Court
These are mostly freelancers, who, with the help of a large number of parliamentarians, initiated this request in the Constitutional Court of FBiH.
In the request, they stated that “there is a significant legal gap in the recognition of persons who are not in a classic employment relationship (freelancers), but are recognized as contributory”.
“The above violates the principles of bilaterality and reciprocity between rights and obligations, which is a key component of a fair legal system. Namely, in accordance with the practice of the European Court of Human Rights and the extensive interpretation of Article 14 of the European Convention, status related to employment can be a basis for discrimination. By failing to legally regulate the status of persons who earn income from other types of self-employment and occasional self-employment, the legislator violated the obligation to ensure equality and fairness for all contributors, regardless on their employment legal status”, they stated in the request.
They concluded that the accumulation of mandatory contributions without taking all of them into the calculation of the base is not fair, which is why it is necessary to abolish the obligation to pay contributions on several bases in the contested provisions of the Law.
Position of the Constitutional Court of FBiH
However, the Constitutional Court of the FBiH considers that in this specific case, “the challenged provisions of the Law are not appropriate to be the subject of determining the constitutionality of the alleged violation of social security rights”.
“Bearing in mind that in the FBiH legal system, social security rights are systemically legislatively separated from the obligation to pay contributions, thus representing two separate normative spheres, the subject of determining constitutionality in this constitutional court case, from the aspect of essential allegations about the possible impossibility of realizing rights from social security, and in this connection, the provisions of the Law cannot be challenged here in relation to the alleged discrimination and violation of the right to property”, is one of the explanations of the FBiH Constitutional Court.
Taking this previously into account, the question arose whether, due to the possible inconsistency of regulations and the systemic disorganization of exercising rights from social insurance, the challenged provisions of the Law, which prescribe the obligation to pay contributions, could be unconstitutional? The Constitutional Court of the Federation is of the opinion that they cannot, he writes Focus.
