U-I-178/93

Reference no.:
U-I-178/93
Objavljeno:
Official Gazette of the RS, no. 40/94 and OdlUS III, 54 | 19.05.1994
ECLI:
ECLI:SI:USRS:1994:U.I.178.93
Act:
Companies Ownership Transformation Act (Official Gazette of the Republic of Slovenia, nos. 55/92, 7/93, 31/93) Article 23, paragraph 5; Article 25.a
Operative provisions:
The provisions of Article 23, paragraph 5, and Article 25.a of the Companies Ownership Transformation Act are not in conflict with the Constitution. The Decree on issuing and consideration of receipts based on unpaid portion of net basic wages, including Annex A and forms, is not in conflict with Article 25 of the Companies Ownership Transformation Act.
Abstract:
1. The different regulating of the rights arising from unpaid portion of wages by the Companies Ownership Transformation Act in relation to the workers employed in companies subject to ownership transformation (Article 25.a) and the workers employed in public agencies, government authorities and organizations financed mainly from the budget (Article 31, paragraph 6) does not infringe the constitutional principle of equality of legal entities (Article 14 of the Constitution of the Republic of Slovenia) because it results from two different actual states.

2. The Decree on issuing and consideration of receipts based on unpaid portion of net basic wages, including Annexes, does not reduce the scope of rights belonging to eligible workers on the basis of unpaid portion of wages in accordance with Article 25.a of the Companies Ownership Transformation Act, and is not in conflict with the above mentioned provision of Article 25.a of the COTA, nor with Articles 87 and 153 of the Constitution of the Republic of Slovenia.
Password:
Rights arising from the unpaid portion of wages.
Principle of equality of legal entities.
Legal basis:
Constitution, Articles 14, 87 and 153.
Constitutional Court Act, Article 21, paragraph 1.
Note:
For reasons of joint consideration and adjudication, the Constitutional Court had decided with its resolution of 2 December 1993 to attach to the case under consideration the cases U-I-190/93, U-I-191/93 and U-I-194/93.
Document in PDF:
The full text:
U-I-178/93-31
19.5.1994
 
D E C I S I O N
 
At the meeting held on 19 May 1994 and concerned with the procedure for assessment of constitutionality and legality proposed by Pergam - Confederation of Trade Unions of Slovenia, Ljubljana, the Trade Union of Workers in Catering and Tourist Industry of Slovenia, Ljubljana, the Trade Union of Metal-Working And Electrical Manufacturing Industries of Slovenia, Ljubljana, and the Regional Trade Union of the Association of Free Trade Unions of Slovenia for Podravje Region, Maribor, the Constitutional Court
 
e s t a b l i s h e d t h e f o l l o w i n g :
 
1. The provisions of Article 23, paragraph 5, and Article 25.a of the Companies Ownership Transformation Act (Official Gazette of the Republic of Slovenia, nos. 55/92, 7/93, 31/93) are not in conflict with the Constitution.
 
2. The Decree on issuing and consideration of receipts based on unpaid portion of net basic wages, including Annex A and forms (Official Gazette of the Republic of Slovenia, no. 59/93) is not in conflict with Article 25.a of the Companies Ownership Transformation Act (Official Gazette of the Republic of Slovenia, nos. 55/92, 7/93, 31/93)
 
R E A S O N S :
 
A.
 
1. The proposers claim that the Companies Ownership Transformation Act (Official Gazette of the Republic of Slovenia, nos. 55/92, 7/93, 31/93 - hereinafter "COTA") stipulates in its Article 23, paragraph 5, that a company shall distribute its shares among its present and former employees and retired persons in accordance with the value appearing in the initial balance, in return for ownership certificates or receipts issued on the basis of Article 25.a of the COTA for the unpaid portion of net basic wages reduced to a level specified in accordance with Article 33 of the General Collective Agreement for Productive Branches of Economy (Official Gazette of the Republic of Slovenia, nos. 1/90, 11/93 - hereinafter "GCAPBE") by the collective agreements of relevant branches of economy until 1 January 1993. This provision is claimed by the proposers to have brought the present and former workers and retired persons of companies subject to ownership transformation into unequal position in comparison with the employees in public agencies, government authorities and other organizations financed mainly from the budget. As claimed by Pergam, the latter are allowed, in accordance with Article 31, paragraph 6, of the COTA, to take part in ownership transformation relating to socially- owned property on the basis of insufficient payments of wages specified in relevant collective agreement under more favourable conditions than the present and former workers and retired persons of companies referred to in Article 23, paragraph 5, of the disputed Act. According to the claims of the proposers, no such difference can be made between workers and employees in productive and non-productive branches of economy by statute as would accord the former the difference with respect to 80% initial wages specified in compliance with relevant collective agreement, and to the latter the difference with respect to 100% initial wages based on relevant collective agreement. Such differentiation is alleged to be in conflict with the principle of equality of every person before the law. In this way, the legislator is said to have restricted the basic wages in a manner which is not allowed, bringing them below a minimum level specified with relevant collective agreement, thus restricting the level of rights of workers in companies subject to ownership transformation arising from personal income, to which they are entitled on the basis of individual collective agreements.
 
In connection with Article 3, paragraphs 3 and 4, of the Decree on issuing and consideration of receipts based on unpaid portion of net basic wages, the Trade Union of Workers in Catering and Tourist Industry of Slovenia and the Regional Trade Union of the Association of Free Trade Unions of Slovenia for Podravje Region, claim that the Decree accords the eligible parties the right to the differences calculated on the basis of gross basic wages specified in the general collective agreement and reduced by 20%, from 1 January 1990 until the coming into force of collective agreements of individual branches of economy, and from then on, on the basis of the basic wages specified in such agreements and reduced by a maximum percentage defined in each particular collective agreement for an economic activity, and the wages actually paid out. This provision of the Decree is claimed by the proposers to have restricted the rights of eligible parties derived on the basis of Article 25.a of the COTA. According to the latter, a company may distribute the shares internally and have capital paid in for the shares intended for internal purchase also on the basis of receipts that may issued by the company on the basis of unpaid net wages reduced to a level specified in accordance with Article 33 of the general collective agreement for productive branches of economy by the collective agreements of relevant branches of economy for the period between the adoption of the collective agreement of such a branch of economy and 1 January 1993. As a proposer, the Trade Union of Metal-Working And Electrical Manufacturing Industries of Slovenia in this connection says that the reduction of basic wages in accordance with the collective agreement of their branch was possible under certain conditions; but the agreement at the same time stipulates that, on the basis of the reduction of wages below the basic wage in accordance with the collective agreement, the workers are entitled to a document which will allow them, in subsequent periods, to take part in the process of ownership transformation, or to claim payment of a debt corresponding to such reduction in the event of bankruptcy proceedings.
 
Concerning the issuance of certificates, the Decree only takes into consideration the difference above the 20% reduction, and does not consider the specific features of individual collective agreements of particular branches of economy; neither does it take into consideration the possibility of reduction by a lower percentage.
 
In accordance with the above said, the proposers propose that the Court should find Article 23, paragraph 5, of the COTA to be in conflict with Article 14 of the Constitution, and to abrogate it. The proposers further propose the abrogation of Article 3, paragraphs 3 and 4, of the Decree on issuing and consideration of receipts based on unpaid portion of net basic wages, including Annex A, claiming that they are not in conformity with Article 25.a of the COTA. In the event that the Constitutional Court should not find Article 3, paragraphs 3 and 4, of the Decree to be in conflict with Article 25.a of the COTA, the proposers put forward a subordinate proposal, according to which the Court should abrogate Article 25.a of the COTA for its allegedly being in conflict with Articles 14 and 155 of the Constitution, and to demand from the National Assembly within six months to bring the said Article into line with the Constitution.
 
As proposers, the Regional Trade Union of the Association of Free Trade Unions of Slovenia for Podravje Region, the Trade Union of Metal-Working And Electrical Manufacturing Industries of Slovenia and the Trade Union of Workers in Catering and Tourist Industry of Slovenia propose that, pending final decision concerning the constitutionality and legality of Article 3, paragraphs 3 and 4, of the Decree on issuing and consideration of receipts based on unpaid portion of net basic wages, the Constitutional Court stay the implementation of regulations and acts based on these provisions.
 
2. In its reply to the proposal for assessment of constitutionality of Article 23, paragraph 5, used in conjunction with Article 31, paragraph 6, and of Article 25.a of the COTA, the National Assembly says that the regulating of the problems relating to insufficient wage payment is essentially different, if comparing the two general collective agreements (the GCAPBE and the Collective Agreements for Non- Productive Branches of Economy, Official Gazette of the Republic of Slovenia, no. 18/91-I, hereinafter "CANPBE") with the regulation in the COTA. Article 33 of the GCAPBE allows the possibility of reducing basic wages by not more than 20%, if the necessary conditions set in the collective agreement have been fulfilled. In collective agreements of individual branches of economy, the provision of the GCAPBE mentioned above is defined as a definite coefficient in accordance with tariff classes, while the conditions applying to the reduction of basic wages are not specified. Basic wages of workers and employees in non-productive branches of economy are determined differently than in the case of those employed in productive branches of economy, and are linked to average monthly wages in productive branches of economy. In accordance with Article 35 of the CANPBE, for a limited period of three months and subject to the fulfilment of conditions set therein, the basic wages of these workers, too, could be reduced by not more than 20% with respect to the basic wage specified in relevant collective agreement. Instances of failure to implement the provisions relating to the payment of wages are regulated by the COTA separately and differently for productive and non- productive branches of economy. The receipts in evidence of the unpaid portion of wages, to which the persons employed in productive branches of economy are entitled, then, can not be equated with certificates to which the employees in non- productive branches of economy are entitled. During the process of adopting the controversial supplements to the COTA, the Government thought it appropriate to make it possible for the workers employed in productive branches of economy to acquire the shares within the framework of internal distribution and internal purchase for the difference between the calculated wages and those actually paid out. Within the framework of last preparations for the proposed amendments to the COTA the Government moved an amendment in connection with non-productive branches of economy, because it felt that, in parallel with additional benefits introduced through the amendments to the COTA for the workers employed in productive branches of economy, appropriate solutions had to be provided also for the workers employed in non-productive branches of economy and organizations financed mainly from the budget, considering that the basic wages in productive branches of economy were in the period between 1 January and 31 October 1992 as a rule lower than the ones specified in the GCAPBE. On the basis of issued receipts, the workers in productive branches of economy can take part in internal purchase of shares at a discount of 50%. Thus, it is not true that the position of the workers employed in non-productive branches of economy is not equal to that of the workers in productive branches, although the Act accords them the right to receipts, with which they can take part in internal purchase amounting to the difference between the wages actually paid out and the basic wage specified by collective agreement and reduced by 20%.
 
Substantially the same view in connection with the subordinate proposal of the Trade Union of Metal-Working And Electrical Manufacturing Industries of Slovenia, the Trade Union of Workers in Catering and Tourist Industry of Slovenia and the Regional Trade Union of the Association of Free Trade Unions of Slovenia for Podravje Region, according to which the Constitutional Court should have evaluated the constitutionality of Article 25.a of the COTA if it should have found that the disputed provisions of the Decree were not contrary to law, was also set forth by the Government.
 
The National Assembly maintains that the disputed provisions of the COTA do not infringe Article 14 of the Constitution, as claimed by the proposers.
 
3. In connection with the proposal of the proposers, that the Constitutional Court should evaluate the constitutionality of Article 3, paragraphs 3 and 4, of the Decree on issuing and consideration of receipts based on unpaid portion of net basic wages, including Annex A, the Government maintains that Article 25.a of the COTA, which was incorporated in the Act by a statute on amendments and supplements to the existing Act (Official Gazette of the Republic of Slovenia, no. 31/93), constitutes the legal basis for issuing the receipts to those workers who did not get their wages in the amounts guaranteed by the collective agreement, and the basis on which the workers can use these receipts in the process of company ownership transformation for internal distribution of shares and their internal purchase. In accordance with Article 33 of the GCAPBE, basic wages in individual branches of economy may in the period until the concluding of collective agreements be reduced by not more than 20%; after these agreements will have been concluded for these branches of activities, the level of reduction shall be specified in such agreements; however, even in collective agreements for individual branches of economy the reduction may not be in excess of 20%. In calculating the amount specified by the receipts referred to in Article 25.a, the documents already issued by the companies to acknowledge the companies' debts in relation to the workers can not be taken as the basis. The disputed provision of the Decree, which specifies the amount of unpaid difference of the wage in connection with which a receipt shall be issued, which would allow participation in the distribution of shares and in their internal purchase, is claimed to be in conformity with Article 25.a of the COTA and is supposed to be a breakdown of the said statutory provision. The claim of the Trade Union of Metal- Working And Electrical Manufacturing Industries of Slovenia, that the Decree does not consider the specific features of individual collective agreements, is in the opinion of the Government absolutely wrong; namely, the applicable hierarchy of legal regulations does not require the conformity of the Decree or of the COTA with the provisions of the collective agreement. The collective agreement for ferrous and non- ferrous metallurgy, whose Article 62 stipulates that the workers shall be given appropriate documents as evidence of payments of wages below a specified minimum amount, which shall allow them subsequently to take part in the process of ownership transformation, or which they shall register as a part of bankruptcy estate, is in the opinion of the Government without any legal basis.
 
In connection with the proposal of the proposers, that the Court should stay the implementation of regulations and acts based on Article 3, paragraphs 3 and 4, of the Decree, the Government holds that the proposal concerning the staying of the disputed provisions of the Decree is unjustified, because evidence of actual grounds has not been produced.
 
B.
 
The statute on amendments and supplements to the COTA, as published in the Official Gazette of the Republic of Slovenia, no. 31/93), stipulates in Article 25.a that a company is allowed to carry out internal distribution of shares and to have capital paid in for the shares intended for internal purchase also on the basis of receipts that may be issued by the company on the basis of unpaid net wages reduced to a level specified in accordance with Article 33 of the general collective agreement for productive branches of economy by the collective agreements of relevant branches of economy for the period between the adoption of the collective agreement of such a branch of economy and 1 January 1993. The documents already issued by the companies to acknowledge the companies' debts in relation to the workers, arising from the difference between the part of the wage paid out and the basic wage specified in the collective agreement, shall be replaced by receipts issued in accordance with this provision of the COTA.
 
If a company has not paid the dues and taxes imposed upon net wages specified in Article 25.a, paragraph 1, of the COTA, it shall be obliged to issue shares in the amount equal to the unpaid portion of the wages and shall transfer them to the capital of the old pension and disability insurance fund.
 
Article 31, paragraph 6, of the second statute on amendments and supplements to the COTA stipulates that the Republic of Slovenia shall issue to the persons employed in public services, government authorities and organizations which are financed mainly from the budget ownership certificates for the difference between the wages paid out and the unpaid portio of wages in accordance with the CANPBE for the period between 1 January 1992 and 31 October 1992. The certificates may be used by the holders to buy the shares or other assets of the Republic of Slovenia and the companies owned by the latter and offered for purchase by the public by means of ownership certificates.
 
On the basis of Article 25.a and Article 31 of the COTA, however, the legislator specified in Article 23, paragraph 5, of the disputed Act that a company may distribute its shares among its present and former employees and retired persons in accordance with the value appearing in the initial balance, in return for ownership certificates referred to in Article 31 of the COTA or the receipts for the unpaid portion of net basic wages, reduced to the amount specified in accordance with Article 33 of the GCAPBE (Official Gazette of the Republic of Slovenia, nos. 31/90, 11/93) by collective agreements of individual branches of economy as applying until 1 January 1993. In this connection, it should be pointed out that the disputed Article 23, paragraph 5, of the COTA expressly excludes from the distribution of shares and their internal purchase the certificates issued in accordance with Article 31, paragraph 6, of the COTA.
 
No doubt, the collective agreements and the relevant legislation form a uniform system used in regulating labour relations. Such collective agreements as would fail to regulate the relations falling within their competence in accordance with mandatory and optional legislative instructions, would be without substance. Optional instructions allow the development of autonomy of collective agreements, which makes it possible for the latter to ensure greater and more favourable rights of workers arising from their labour relation. On the basis of collective agreements, the persons to whom they refer become entitled to actionable rights and obligations. In this connection it should be pointed out that collective agreements have legal effects exclusively in the fields in which they are empowered to regulate legal relations in accordance with statute.
 
Both general collective agreements, as well as the collective agreements of individual branches of economy, specify basic wages of workers on the basis of full-time employment, performance and standard working conditions according to tariff classes. Initial wages are the minimum guaranteed wages of workers and can not, as a rule, be reduced on the basis of an employment contract between the employer and the workers.
 
In accordance with the GCAPBE, it would be possible for employers to reduce, until collective agreements for individual branches of economy will have been concluded, basic wages by not more than 20%, if by paying out the basic wages the existence of the organization or employer would be endangered. At the same time, the GCAPBE gives authorization for regulating the reduction in basic wages under the initial wage in collective agreements of individual branches of economy. The collective agreement for non-productive branches of economy also provides for possible reduction of initial wages by not more than 20% in cases when sufficient funds could not be provided, as a result of general economic conditions, for payment of initial wages. The GCAPBE, as well as the collective agreements of individual branches of economy and the CANPBE based on it, specify, for a limited period of time in accordance with Article 25.a and Article 31 of the COTA respectively, an initial amount of wages for individual tariff classes. The amount of these wages is guaranteed, except when the employer meets with circumstances which could endanger his existence, or with other conditions specified in collective agreements of individual branches of economy, or the conditions specified for the workers employed in non- productive branches of economy in the CANPBE. The employers who, as a result of meeting with circumstances which have endangered their existence, have reduced basic wages (or initial wages, if the two were the same in reference with individual employers or workers) of the workers by a specified percentage and, respectively, the socio-political communities which have applied wage reductions for lack of budgetary funds as a result of general economic conditions, are in the opinion of the Constitutional Court responsible for the difference between the actual wage reduction and the basic wages specified in employment contracts and reduced by a percentage specified in collective agreements, or by a lower percentage of reduction, if following the occurrence of a condition in accordance with the collective agreement a particular employer has applied a lower percentage of reduction.
 
Thus, the COTA has introduced two types of bills of debt for the claims of workers based on insufficient payments of wages, which allow the workers to take part in the process of privatization of socially-owned capital and in the purchase of shares or other assets of the Republic of Slovenia and the companies owned by the latter. In this connection it should be pointed out that the Act expressly restricts the use of certificates by the workers entitled to them and employed in public agencies, government authorities and other government bodies and organizations financed mainly from the budget. With them, the eligible parties may not acquire shares or stocks in companies within the framework of internal distribution and internal purchase, nor the shares of authorized investment companies, or those of the companies transforming their ownership structure through public sale of shares.
 
The Constitutional Court considers that, in regulating the rights deriving from insufficient wages paid out to workers in productive branches of economy and those in non-productive branches of economy, the Act has proceeded from different actual and legal assumptions.
 
The system of determination of initial wages specified in the GCAPBE or collective agreements of individual branches of economy respectively, and that of the CANPBE, differ: the basis applying to the workers employed in non-productive branches of economy is defined in relation to the average monthly wage in productive branches of economy in the Republic of Slovenia. Not only are the two systems different; a comparison of initial wages in productive and non-productive branches of economy also reveals obvious disparity. The Constitutional Court further finds that Article 25.a of the COTA makes it possible for the workers employed in productive branches of economy to take part in internal distribution of shares on the basis of receipts issued as evidence of insufficient payment of wages and the initial wage reduced by a percentage specified in applicable collective agreement. If in the process of company privatization in accordance with this method the limit of 20% of the value of socially-owned capital in accordance with the initial balance of the company should be exceeded, and the company has adopted the program of the so called internal privatization, the workers may also use the receipts to buy shares within the scope of internal privatization. For such purchases a 50% discount is granted in Article 25 of the COTA to eligible parties.
 
With the method of internal purchase of shares, the eligible parties are allowed, on the basis of the Act, to manage the shares to which the Development Fund of the Republic of Slovenia is entitled, although the shares may not have been purchased yet. In case of internal purchase, the Fund will decrease the value of shares purchased on behalf of the eligible parties each year by the amount of profit above 2% of the value of dividends to which the Fund is entitled.
 
In addition, the workers employed in productive branches of economy are entitled to receipts in evidence of the unpaid portion of the wage from the coming into force of the GCAPBE until 1 January 1993; the workers employed in non-productive branches of economy, on the other hand, are entitled to certificates in connection with the unpaid portion of the wage for the period between 1 January 1992 and 31 October 1992.
 
Article 14 of the Constitution stipulates that in Slovenia each individual shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other beliefs, financial status, birth, education, social status or whatever other personal circumstance, and that all persons shall be equal before the law.
 
In regulating legal relations the legislator is obliged, in accordance with the Constitution, to consider the principle of equality; as a result, different norms are only allowed to be used when a difference of actual status is involved. On the basis of this assumption the legislator has the right to select a most appropriate and suitable means with which to reach the objective pursued by a particular regulation or norm. The selection of a means of, and different regulating of legal relations is thus justifiable if the differentiation introduced by the legislator is substantiated and incorporated in a coherent manner into the legal system.
 
Thew Constitutional Court considers that Article 25.a and Article 31, paragraph 6, of the Act regulate two essentially different actual statuses, and that the differentiation introduced on the basis of these provisions does not infringe the principle of equality proclaimed by the Constitution in Article 14. In this connection the Court points out that the claims of the proposer Pergam are not true, namely, that such differentiation is comprised in Article 23, paragraph 5, of the COTA. This in fact deals with ownership certificates (referred to in Article 31), but the possibility of using the certificates issued on the basis of Article 31, paragraph 6, in connection with the distribution of shares and internal purchase of the same in a company is expressly excluded.
 
The Constitutional Court is actually not competent to evaluate the suitability of the solutions selected, but it nevertheless considers that the differentiation introduced by the legislator was based on real and sound reasons and that the solutions of the latter are not in conflict with the principles of justice and of a state governed by the rule of law. The rights of workers with respect to ownership transformation of companies based on the method of internal distribution of shares and purchase of the latter are not comparable to the rights of the persons employed in public agencies, government authorities and other organizations financed mainly from the budget relating to the purchase of shares and assets of the Republic of Slovenia and the companies owned by the latter and offered for purchase by the public by means of ownership certificates.
 
The Constitutional Court considers that workers are entitled to basic wages in the amounts specified in accordance with statute and collective agreements by the employer and the employee in employment contract. The basic wage of a worker can only be reduced if the conditions set forth in collective agreements are fulfilled; the percentage of reduction is such as is specified in the agreements for individual branches of economy. In the cases when the employers fail to pay out such wages to the employees, the latter are entitled to an actionable claim for the debt of the employer.
 
The COTA allowed the companies which failed to pay out to the workers the wages amounting to the basic wage to issue, for the period from adopting the GCAPBE until 1 January 1993, receipts for the unpaid portion of net basic wages, however, taking into consideration the reduced wages specified by the GCAPBE and collective agreements of individual branches of economy; such receipts could be used by the workers in acquiring internal shares within the scope of internal distribution and in paying in for internal purchase of shares.
 
The Constitutional Court finds that the legislator has made it possible for the workers to transform their bonded debt claims into corporate debt claims only to the amount of initial wages reduced to the level specified in the GCAPBE and, with their coming into force, in the collective agreements of individual branches of economy. The difference between reduced initial wages in accordance with collective agreements and the wages to which the workers were actually entitled on the basis of collective agreements and employment contracts is not regulated in the disputed provisions of the COTA by the legislator. The workers who will be able to use the receipts issued on the basis of Article 25.a of the COTA in the process of internal distribution of shares and payments for internal purchase will enjoy all the benefits accorded to them by the COTA in Article 23, 24 and 25. in connection with the use of certificates under Article 31 of the COTA.
 
The legislator has jurisdiction over the regulating of the rights and obligations of legal entities by general and abstract legal instruments. In this respect he is bound by the Constitution and must select such solution as will be realistic and sound. The question as to the scope of socially- owned capital allowed by the legislator to be subject to privatization, then, is one of political assessment made by the legislator, which the Constitutional Court is not competent to evaluate. Socially-owned capital shall be privatized on the basis of the receipts referred to in Article 25. of the COTA with discounts and benefits made possible by the Act in the case of privatization on the basis of ownership certificates. The receipts, which companies are entitled to issue, give the sum of revalued monthly amounts of the differences with reference to monthly increase of retail prices. Thus, the legislator decided to make the privatization of socially-owned capital, based on revalued differences between the initial wages actually paid out and reduced in accordance with collective agreements, more favourable. The Constitutional Court considers that there is a legal basis according to which the surplus entitlements of workers and companies deriving from unpaid wages may, in the scope exceeding the rights accorded by the Act and up to the basic wages under employment contracts, be transformed into corporate rights; for this portion, however, the workers are not granted by the Act the discount and benefits provided in Articles 23, 24 and 25 of the COTA, again in line with the legally prescribed system of ownership transformation. In the case, then, when the claims of the workers against the company, which arise from insufficient payment of wages, are in excess of those on the basis of which they are entitled to be issued receipts under Article 25.a of the Act, their right is in this way not injured at all and may be exercised with respect to the relevant company on the basis of general principles of civil law.
 
In line with the above said the Constitutional Court finds that the provision of Article 25.a of the COTA is not in conflict with the Constitution.
 
On the basis of Article 25.a of the COTA, the Government had issued the Decree on issuing and consideration of receipts based on unpaid portion of net basic wages, including Annexes A, B and C, forms and Annex I - Instructions on how to fill in the forms. Article 3, paragraphs 3 and 4, of the Decree gives a breakdown of the provision of Article 25.a of the COTA and is considered by the Constitutional Court to be in conformity with it.
 
Further, the Constitutional Court rejects the claims of the proposers that Article 3, paragraphs 3 and 4, of the Decree and Article 25.a of the COTA encroach upon the accrued rights of workers which the latter have acquired in the companies on the basis of the receipts already issued and of individual collective agreements which accorded them the right of participation in the process of ownership transformation of companies on the basis of documents received for insufficient payment of wages. The method of transformation of ownership structure in connection with socially-owned property and the rights of workers can only be governed by statute, which is why the workers in individual branches of economy, which have regulated the rights deriving from transformation of ownership structure in socially-owned property by collective agreements, have not acquired any privatization rights on the basis of such agreements. The programme provisions contained in individual collective agreements are conditional rights only, and depend on the method of privatization introduced by the COTA, which was anticipated at the time of concluding collective agreements. Since the provisions of collective agreements are not in conformity with the COTA, the condition has not been fulfilled and no rights of the workers have accrued.
 
The Constitutional Court made the Decision concerning the constitutionality. Consequently, it did not consider the proposal to issue a temporary injunction with a view to staying the disputed provisions of the Decree.
 
C.
 
This Decision was made on the basis of Article 21, paragraph 1, of the Constitutional Court Act (Official Gazette of the Republic of Slovenia, no. 15/94) by the Constitutional Court in the following composition: Dr. Tone Jerovšek, President, and Dr. Peter Jambrek, Matevž Krivic, M.L., Janez Snoj, M.L., Dr. Janez Šinkovec and Dr. Lovro Šturm, Franc Testen, Dr. Lojze Ude and Dr. Boštjan M. Zupančič, the judges. The Decision was reached with eight votes in its favour and one vote against it. The judge Ude voted against it and expressed a negative separate opinion.
 
 
P r e s i d e n t:
Dr. Tone Jerovšek
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Pergam - Confederation of Trade Unions of Slovenia, Ljubljana
Date of application:
10.04.1993
Date of decision:
19.05.1994
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute
Document:
AN00412