I. Abrogation by the Constitutional Court of the decision on
base salary for the purpose of calculation of social and health
contributions for freelance professionals - Legal perspective
On 16.09.2016, the Constitutional Court, with the Decision no.
60, ruled on the unconstitutionality of article 4 of the law no.
143/2015, dated 17.12.2015 "On some amendments and additions
to the law no. 9136, dated 11.9.2013, "On collection of
obligatory contributions of social and health insurances in the
Republic of Albania" and the Decision of the Council of
Ministers no. 37, dated 21.01.2016, "On determining the
monthly salary for purposes of calculation of obligatory social and
health contributions for persons registered as self-employed, who
perform professional economic activities and unpaid family
employees that work and live with them".
The decision of the Constitutional Court has been published with
the Official Gazette no. 172, dated 20.09.2016 and shall be
effective as of the date of its publication. The Constitutional
Court has chosen not to resolve on a different date of entry into
force, despite having this power.
The Constitutional Court, in ruling on the unconstitutionality
of the law provisions, moves along three arguments brought by the
petitioner, the Albanian Bar Association, (i.e. the court rejected
other petitioner's claims).
(i) Violation of principle of equality and
The court on the matter stipulates that the law provision under
examination not only fails to unify [social and health
contribution] obligations, but on the contrary, the new formula for
calculating the contributions collides with the principle of
equality and non-discrimination.
The court observes that the criteria set for calculating and
differentiating contributions is not based in a technical analysis
or previous experience. Such criteria create new elements of
inequality, new administrative burdens for the taxpayers, technical
difficulties and judicial uncertainty.
To this effect, concludes the court, the claim of the petitioner
is grounded given the different treatment of the self-employed
persons who exercise professional economic activities is not
justified by reasonable and objectives grounds, therefore resulting
in violation of the constitutional principle of equality.
(ii) Violation of the principle of legal
On this claim of the petitioner, the Constitutional Court
asserts that the lack of harmonization of the provisions of a law
with those of other laws does not per se imply automatic
unconstitutionality, but when uncertainties in the legislation
create problems that lead to the incorrect application of the law
provision, certainly those are in contrast with the Constitution.
Therefore, the Court argues that it is the principle of legal
certainty that guaranties the predictability of the legal framework
as a whole.
The arguments in defence of the legislative intervention brought
by the Council of Ministers and the Social Insurance Institute,
such as the necessity of accelerating the pace for achieving the
social objectives, avoidance of the collapse of the social
insurance scheme, etc., were challenged by the court on the grounds
that the deterioration of the financial situation for the
self-employed persons, by increasing with almost 300% the amount of
obligatory contribution, does not comply with constitutional
requirements. In fact, this is considered not a proportional
legislative intervention, because in the present case, the measures
to be taken do not serve to create a stable social insurance scheme
or even avoid the present irregularities.
On these basis (i.e. and other arguments), the court held that
the legislative intervention violates the principle of legal
certainty as well.
(iii) Violation of the hierarchy of normative
Concluding, the Constitutional Court accepted also this claim
raised by the petitioner as, in the opinion of the court, the
Council of Ministers, with the Decision 37/2016, sets out a
categorized reference salary level, not a minimum and maximum
salary as required under the applicable law, resulting by this way
in breach of the hierarchy of normative acts.
Based on the decision of the Constitutional Court, starting from
20.09.2016, article 4 of the law no. 143/2015 and Decision of the
Council of Ministers no. 37, dated 21.01.2016 shall no longer be in
force and applicable.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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