381 To delo je ponujeno pod licenco Creative Commons Priznanje avtorstva-Brez predelav 4.0 Mednarodna. Content on this publication is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International licence. (http://creativecommons.org/licenses/by-nd/4.0/) Zbornik znanstvenih razprav – LXXXII. letnik, 2022 LjubLjana Law Review, voL. LXXXii, 2022 Professional article UDK / UDC: 349:347.9:616(497.4) DOI: 10.51940/2022.1.381-391 Zarja Hude* Unilateral Termination of Employment of Pensionable Workers Held Unconstitutional Between Equal Treatment, the Principle of Legality and Pure Formalism 14 1. Introduction In December 2020, during the sec- ond wave of the COVID-19 epidemic, the Slovenian parliament adopted the Act Determining Intervention Measures to Assist in Mitigating the Consequences of the Second Wave of COVID-19 Epidemic (hereinafter: The Intervention Act).1 Its aim was, according to the legislative pro- posal,2 to mitigate and eliminate detri- mental consequences and other negative * Bachelor of Law (University of Ljubljana), Master’s student at University of Cambridge; hudezarja@gmail.com. 1 Zakon o interventnih ukrepih za pomoč pri omilitvi posledic drugega vala epidemije COVID-19 (ZIUPOPDVE, Official Gazette of the Republic of Slovenia, Nos. 203/20 to 206/21). 2 Predlog zakona o interventnih ukrepih za po- moč pri omilitvi posledic drugega vala epidemi- je COVID-19 (ZIUPOPDVE), EVA: 2020- 1611-0140 (hereinafter: the Proposal). impacts of the COVID-19 epidemic on the economy, employment relations and the labour market, the social assistance scheme, and healthcare. In general, the Intervention Act was introduced to regulate COVID-19 re- lated content and protect the persons’ health as well as the liquidity of busi- ness entities.3 In pursuit of this aim, it was supposed to follow key principles of Slovenian constitutional law, inter alia, the social state principle (Article 2 of the Slovenian Constitution),4 the principle 3 The Proposal, p. 2. 4 Ustava Republike Slovenije (Official Gazette of the RS, Nos. 33/92-I to 92/21). The social state (Germ. Sozialstaat) concept is inherent to the principle of solidarity that can either be vertical (among different individuals in the generation of economically active people, distinguished on grounds of their income) or horizontal (e.g., among individuals of dif- ferent—young, working, and retired—gen- 382 Zbornik znanstvenih razprav – LXXXII. letnik, 2022 of solidarity, and the principle of legal- ity (Articles 8 and 153 of the Slovenian Constitution).5 However, two provisions of the Intervention Act—Articles 21 and 22—attracted particular attention because they regulated a somewhat COVID-19 non-related topic. They amended hitherto applicable arrangement for the ordinary termination of employment contracts due to business reasons set forth by the Employment Relationships Act (herein- after: ERA)6 and the Public Workers Act (hereinafter: PEA).7 Until the adoption of the Intervention Act, an ordinary termination of the em- ployment contract due to a business rea- son was governed by Article 89 ERA, ap- plicable to the private sector, and Article 156 PEA, applicable to the public sector. Both pieces of legislation, in their essence, erations). In the Proposal, the government stressed only the horizontal dimension of the solidarity principle (as well as mutual assistance) between the healthy and the sick, whereas it failed to mention the vertical as- pect. This distinction is important because the Slovenian Government, when arguing for the constitutionality of the contested provi- sions before the Constitutional Court, heav- ily relied on the legitimate aim of employing younger people. See p. 3. 5 According to Article 153 on the Conformity of Legal Acts, from which the interpretation of the principle of legality can be derived, laws, regulations and other general legal acts must be in conformity with the Constitution. The Proposal, pp. 2–3. 6 Zakon o delovnih razmerjih (ZDR-1, Official Gazette of the RS, Nos. 21/13 to 54/22). 7 Zakon o javnih uslužbencih (ZJU, Official Gazette of the RS, Nos. 63/07 to 3/22). provided for the same termination condi- tions. Firstly, they demanded the presence of a valid (business) reason, i.e., a reduc- tion in the need to perform tasks and oth- er work under the employment contract because of economic, organisational, tech- nological, structural, or similar reasons on the part of the employer. Secondly, they required a substantiation of such reason. Thereby, only a substantiated notice of a reduced scope of work justified the termi- nation of the employment contract. Such an arrangement aimed to guarantee work- ers the necessary level of employment pro- tection and legal certainty. The Intervention Act amended Article 89 ERA and Article 156 PEA by introduc- ing a new exception to the requirement of a substantiated valid (business) reason for dismissing a worker. Employers in both private and public sectors were now en- abled to terminate the employment con- tracts for all workers who met the condi- tions for acquiring the right to an old-age pension without stating or justifying a valid (business) reason whatsoever. The amending provisions supposedly aimed to facilitate the termination of em- ployment contracts of pensionable workers and to enable to employ younger workers instead. Presumably, by relieving the ad- ministrative burden of the employers re- garding the dismissals, the competitiveness as well as the flexibility of Slovenian labour market would be improved.8 However, if dismissing a pensionable worker, the 8 The Constitutional Court of the RS Decision in Joint Cases Nos. U-I-27/21 and U-I-16/ 21-17 of 18 November 2021, para. 8. 383 Zarja Hude – Unilateral Termination of Employment of Pensionable Workers Held Unconstitutional – Between Equal Treatment, the Principle of Legality and Pure Formalism Intervention Act did not require employers to hire a younger worker. Consequently, the alleged aim of the Intervention Act was left highly questionable. As a safeguard for the dismissed pen- sionable workers, the Intervention Act en- visaged a notice period of 60 days and en- titled them to the same severance pay they would have received in case of an ordinary dismissal due to a business reason pursuant to the previous legislation, i.e., by virtue of Article 89 ERA and Article 156 PEA. It can be deduced that the Intervention Act changed the arrangement of dismissing workers by adding a new (business) reason for terminating the employment contract of pensionable employees, whereby the employers were no longer obliged to jus- tify the reason behind the dismissal. The Intervention Act deemed sufficient for em- ployers to prove that the dismissed workers meet the retirement conditions. No further explanation or reasoning was required. 2. The Case and the Decision Soon after its adoption, the Inter- vention Act was heavily criticised both by the general and professional public, inter alia, because it assumably discriminated against pensionable persons as an especial- ly vulnerable population group. Namely, pensionable workers are necessarily older persons whose employability is significant- ly difficult. As a result, their subsequent employment at another employer is highly improbable. In most cases, a dismissal at such a late stage of employment in prac- tice leads to retirement. In addition, it was emphasised that, irrespective of the temporary nature of the Intervention Act, the amending pro- visions are systematically and permanent- ly amending Slovenian labour and social security law. Those changes were never- theless adopted without previous social dialogue. It was also highlighted that the amending provisions deprive pensionable workers of several labour and social se- curity rights, whereby the legitimate aim pursued by those provisions as well as their proportionality, are highly questionable.9 For these reasons, seven representa- tive trade unions and the Advocate of the Principle of Equality initiated the proce- dure for the review of the constitutional- ity of the amending provisions before the Constitutional Court of the Republic of Slovenia (hereinafter: Court). In February 2021, the Court issued an order to suspend the effect of the chal- lenged provisions.10 Consequently, it sus- pended the legal effect of already served terminations of employment contracts un- til reaching the final decision in the case. This decision was rendered in November 2021; the Court reversed the contested provisions of the Intervention Act due to their incompatibility with Article 8 of the Constitution, which demands compliance of national laws and regulations with in- ternational law. 9 See, for example, Bagari, Strban, 2021, pp. 9–29; Mišič, 2021, pp. 79–95. 10 Constitutional Court Order No. U-I-16/21 of 18 February 2021. 384 Zbornik znanstvenih razprav – LXXXII. letnik, 2022 2.1. Procedural Reasons behind the Suspension According to Article 23a of the Constitutional Court Act (hereinafter: CCA),11 a trade union, a representative in the territory of Slovenia, may initiate the procedure for the review of the constitu- tionality whenever the disputed legislation endangers workers’ rights. The Court preliminarily confirmed that initiating trade unions fulfil the con- dition of representativeness. Next, it ex- amined whether the challenged provisions indeed endangered the rights of workers. More specifically, the Court explained that the legislation in question must present a concrete and direct threat to the labour and social security rights of workers repre- sented by the trade union. In this regard, it remarked that the disputed provisions determine a new dismissal (business) rea- son which enables the employers to dis- miss all workers who meet the retirement conditions (i.e., workers who meet the stipulated threshold of both requisite age and employment period) for business rea- sons without the need to substantiate the reason itself. Considering this, the Court concluded that the said provisions present a concrete and direct threat to the rights of workers.12 11 Zakon o ustavnem sodišču (ZUstS, Official Gazette of the RS, Nos. 64/07 to 92/21). 12 See, the Constitutional Court of the RS Order No. U-I-16/21 of 18 February 2021, paras. 9–12. With this conclusion, the Constitutional Court reversed its case-law, according to which the termination of the employment contract due to the fulfilment In this regard, the Court emphasised particularly severe implications of termi- nating the employment contract of older workers who are generally challenged by difficult re-employment. For them, such termination most likely means not only loss of employment but also the end of their professional career. The risk of ir- reversible change of status from being economically active to being retired was deemed as another reason supporting the conclusion that the challenged provisions endanger workers’ rights.13 In light of the above, the Court found that procedural conditions to decide upon suspending the effect of the disputed pro- visions of the Intervention Act, which enabled the employers to unilaterally ter- minate the employment contract to all pensionable employees without providing the reason behind the dismissal, are met. This enabled the Court to deal with the merits of the request for suspension. 2.2. Substantive Reasons behind the Suspension Article 39(1) of the CCA allows the Court to suspend the contested legislation until its final decision if the enforcement of the contested act could result in detri- of retirement conditions could not endan- ger the rights of workers. See, for exam- ple, Constitutional Court of the RS Order No. U-I-154/12 of 6 March 2014 or the Constitutional Court of the RS Decision No. U-I-68/14 of 9 September 20215, and others. 13 See, the Constitutional Court of the RS Order No. U-I-16/21 of 18 February 2021, para. 13. 385 Zarja Hude – Unilateral Termination of Employment of Pensionable Workers Held Unconstitutional – Between Equal Treatment, the Principle of Legality and Pure Formalism mental consequences that would be diffi- cult to repair. Accordingly, the Court had to weigh the risks of detrimental conse- quences that would occur: – On the one hand, if the contested le- gislation was enforced but later found unconstitutional, and – On the other hand, if the challenged provisions were suspended but later fo- und compliant with the Constitution.14 In the context of weighing the risks, the Court once again put forward the more difficult employability of the older persons and irreparable consequences of the dis- puted provisions on pensionable workers (see above, 2.1.). A key finding was that a potential reversal of the said provisions (in case they were found unconstitutional) would only be possible if the served termi- nations of employment were suspended. Meanwhile, the employers could still dis- miss workers for business reasons if the rea- son for termination of employment would be appropriately substantiated.15 Weighing both scenarios, the Court decided in fa- vour of the claimants and issued an order to suspend the enforcement of the contest- ed provisions of the Intervention Act until reaching the final decision in the case. 2.3. Procedural Reasons behind the Reversal In the course of the proceedings, claims of representative trade unions were joined by the Advocate of the Principle of Equality. In its final decision, the Court 14 Ibid. para. 14. 15 Ibid. para. 15. thus dealt with its legitimacy for initiating the procedure for the review of the consti- tutionality of the challenged provisions of the Intervention. The Court maintained that the Ad- vocate of the Principle of Equality might claim violations of prohibited discrimina- tion in connection with human rights and fundamental freedoms and breaches of the general principle of equal treatment.16 Therefore, to the extent the Advocate of the Principle of Equality was not invoking violations of human rights and fundamen- tal freedoms, the Court denied its capacity to bring forward the proceedings.17 This finding, however, did not affect the sub- stance of the final decision. 2.4. Substantive Reasons behind the Reversal The Court initially stressed that the employer’s choice to terminate the em- ployment is limited by several substan- tive conditions. The main limitation is a requirement of an actual, valid reason substantiated in the written form, which must be: – Either connected to the capacity or conduct of the worker or – Based on the operational requirements of the employer (the so-called business reason).18 16 The Constitutional Court of the RS Decision in Joint Cases Nos. U-I-27/21 and U-I- 16/21-17 of 18 November 2021, para. 15. 17 Ibid., para. 16. 18 Ibid., para. 18. 386 Zbornik znanstvenih razprav – LXXXII. letnik, 2022 Moreover, the Court outlined the pro- visions governing the employer’s ordinary termination of an employment contract due to a business reason, i.e., Article 89 ERA and Article 156 PEA. According to ERA, a valid business reason is recognised as “a cessation of the needs to carry out certain work under the conditions pursu- ant to the employment contract, due to economic, organisational, technological, structural, or similar reasons on the em- ployer’s side,” whilst PEA recognises such reason as a “decline in the volume of pub- lic tasks or the privatisation of public tasks or for organisational, structural, public fi- nance or other similar reason.” Both pieces of legislation require such a reason to be substantiated in a written form. The Court affirmed that the Inter- vention Act adopts a brand new (business) reason for terminating the employment contract, characterised by two specialities:19 1. It applies only to workers who meet the retirement conditions and 2. There is no need for substantiation or other explanation.20 The claimants asserted that such an arrangement contradicts international treaties binding on Slovenia, invoking particularly Article 4 of the International Labour Organization Convention No. 158 (hereinafter: ILO Convention No. 158) and the revised European Social Charter (hereinafter: ESC). The reference to bind- ing international treaties is important in the context of the hierarchy of legal acts enshrined in Article 8 (and Article 153) of 19 Ibid., para. 19. 20 Ibid., para. 20. the Constitution, the highest legal act in the Slovenian legal system. Both articles demand that all national laws conform with international law and international treaties binding Slovenia. To decide on the subject matter, the Court thus relied on two internation- al treaties. First, on Article 4 of the ILO Convention No. 158, which reads: “The employment of a worker shall not be terminated unless there is a valid reason [emphasis added] for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, estab- lishment, or service.” Second, on Article 24(1)(a) of the ESC, which provides for “the right of all workers not to have their employment terminated without valid reasons [emphasis added] for such termi- nation connected with their capacity or conduct or based on the operational re- quirements of the undertaking, establish- ment, or service.”21 The Court found that, by demand- ing a valid reason for termination of the employment contract, both internation- al treaties pursue the same objective—to 21 Article 24(1)(b) of the ESC provides for an alternative right of workers whose employ- ment is terminated without a valid reason to adequate compensation or other appropriate relief. However, the compensation (as a reim- bursement of a damage) should be differenti- ated from the severance pay (as a benefit after the employment relationship ends). For this reason, the disputed provisions cannot be un- derstood in terms of a compensated termina- tion of the employment relationship without a valid reason. 387 Zarja Hude – Unilateral Termination of Employment of Pensionable Workers Held Unconstitutional – Between Equal Treatment, the Principle of Legality and Pure Formalism protect the worker against unjustified dis- missal by the employer.22 Furthermore, it was remarked that both international instruments explicitly specify (the exact same non-exhaustive) list of circumstances23 that shall not con- stitute valid reasons for terminating the employment contract.24 With respect to the ILO Convention No. 158, the Court also observed the Recommendation No. 166 (hereinafter: Recommendation) that supplements the Convention and sets interpretative guidelines. In addition to non-valid reasons for dismissal set forth by the Convention, Article 5 of the Recommendation specifically classifies re- tirement age as another reason that cannot justify the termination of the employment contract. Interestingly, the Court did not elaborate on this matter any further.25 Considering the acknowledged Re- commendation, the Court could have discussed whether a non-exhaustive list of 22 See, the Constitutional Court of the RS Decision in Joint Cases Nos. U-I-27/21 and U-I-16/21-17 of 18 November 2021, para. 24. 23 Non-exhaustive nature can be deduced from the text of both international treaties, which explicitly use wording inter alia [A/N: word- ing by the Article 5 ILO Convention No. 158] or in particular [A/N: wording by the Article 24 of the Appendix to the ESC] be- fore listing non-valid reasons for termination of employment contract. 24 See Articles 5 and 6 of the ILO Convention No. 158 and Article 24(3) of the Appendix to the ESC. 25 The Constitutional Court of the RS Decision in Joint Cases Nos. U-I-27/21 and U-I- 16/21-17 of 18 November 2021, para. 25, footnote 14. non-valid reasons for a dismissal stipulated by Article 5 of the ILO Convention No. 158 should consider the supplementing Recommendation (and if not, why so). However, in the case at hand, the scope of Article 158 was not discussed. Reasons not expressly listed therein were deemed as potentially valid reasons for termination of the employment contract, provided that they are sufficiently and appropriately substantiated.26 With respect to the required substan- tiation, the Court explained that only reasoning of the valid reason behind the termination of the employment contract enables an impartial subsequent examin- eation whether the dismissal was justified, legitimate and legally compliant.27 In this regard, the Court recalled that the burden of proving the existence of a valid reason is on the employer.28 In line with the foregoing, the Court concluded that a dismissal by the employ- er is justified only in case of a sufficient- ly and appropriately substantiated valid reason; whether the valid reason could include pensionable age was not directly answered. In case the termination of the employment contract is not substantiated, there is no valid reason and, consequent- ly, there is no justified termination in the 26 The Constitutional Court of the RS Decision in Joint Cases Nos. U-I-27/21 and U-I- 16/21-17 of 18 November 2021, para. 25, footnote 14. 27 Article 24 of the ESC. 28 Ibid., paras. 18 and 26. 388 Zbornik znanstvenih razprav – LXXXII. letnik, 2022 sense of both the ILO Convention No. 158 and the ESC.29 In the present case, the challenged pro- visions of the Intervention Act excluded the requirement to substantiate a valid (business) reason for the dismissal. It was sufficient that the worker met the retire- ment conditions. No further explanation was required. For the Court,30 the key acknowledge- ment was that the fulfilment of retirement conditions in itself—with no further sub- stantiation by the employer—cannot con- stitute a requisite valid (business) reason pursuant to the observed international law provisions. By excluding the employers’ obligation to substantiate a valid (busi- ness) reason, the disputed provisions elim- inated the essential element of workers’ protection against unjustified unilateral dismissal. Moreover, in the absence of any substantiation behind the dismissal, any subsequent examination by an impartial body would be disabled. As a result, work- ers would be deprived of adequate labour protection regarding the termination of the employment contract. The above-mentioned led the Court to conclude that unilateral termination of the employment contract solely be- cause the worker fulfils the retirement conditions without the need for the em- ployer’s decision to be justified by a valid (business) reason is not consistent with the ILO Convention No. 158 and the 29 The Constitutional Court of the RS Decision in Joint Cases Nos. U-I-27/21 and U-I-16/21- 17 of 18 November 2021, paras. 18 and 28. 30 Ibid., paras. 18, 27 and 28. ESC. Because the provisions of a (legis- lative) Intervention Act derogated from international treaties, they were found to be inconsistent with Article 8 of the Constitution. Ultimately, the Court re- versed the challenged provisions allowing employers to dismiss pensionable employ- ees without the need to explain the reason behind the dismissal. It should be noted that Article 8 of the Constitution is of procedural nature, as it regulates the hierarchy among legal acts in the RS (lex superior derogate legi inferiori). In addition, the claimants raised many substantive issues relating to human rights and obligations of the State. In this regard, they relied on Equality before the Law (Article 14 of the Constitution), Freedom of Work (Article 49 of the Constitution), and Security of Employment (Article 66 of the Constitution).31 Yet, because the challenged provisions were found uncon- stitutional for procedural reasons already, substantive claims put forward by the claimants were not addressed by the Court. 3. Assessing the Separate Opinion of Judge Accetto In his concurring separate opinion,32 Judge Accetto firstly confirmed the need for a valid substantiated reason to termi- nate the employment contract as an essen- 31 Ibid., para. 1. 32 Separate concurring opinion by Judge Accetto to the Constitutional Court of the RS Decision in Joint Cases Nos. U-I-27/21 and U-I-16/21-17 of 18 November 2021. The opinion was joined by Judge Knez. 389 Zarja Hude – Unilateral Termination of Employment of Pensionable Workers Held Unconstitutional – Between Equal Treatment, the Principle of Legality and Pure Formalism tial element of workers’ protection against unjustified dismissal.33 However, he em- phasised whether the possibility to dismiss a worker due to a business reason, solely because workers fulfil the retirement age, is admissible in substance. Referring to the Statement of Interpretation of Article 24 of the ESC, rendered by the European Committee of Social Rights (hereinafter: ECSR), he highlighted that age is a con- troversial reason for unilaterally terminat- ing the employment contract. As observed by Accetto, this issue was also indicated but not elaborated on in the decision itself (the concern was raised within a footnote only).34 The ECSR has consistently held that a unilateral dismissal by the employer on grounds of the worker reaching pen- sionable age is contrary to the ESC unless the termination is properly justified with reference to one of the valid grounds ex- plicitly expressed therein.35 Judge Accetto maintained that the Court could have paid more attention to the question of whether a general possibility to unilater- ally terminate the employment contract solely because the worker meets the retire- 33 Ibid., para. 2. 34 Ibid., para. 3. 35 ECSR, Statement of interpretation on Art. 24 of the ESC, para. 3. See also: Con- clusions of ECSR concerning Armenia (2020), Conclusions of ECSR concerning Turkey (2012), Decision of ECSR, case Fellesforbundet for Sjøfolk (FFFS) v. Norway, Complaint No. 74/2011, . ment conditions could satisfy the require- ment of a valid substantiated reason from Article 24 of the ESC.36 Secondly, Judge Accetto underlined another aspect the decision left aside—the relevance of EU law. EU law, for exam- ple, Articles 15 (Freedom of Occupation and Work) and 21 (Prohibition of Discrimination) of the Charter of Fun- damental Rights of the European Union, addresses issues related to those discussed in the present case as well. He expressed his belief that EU law is also relevant in assessing the issues raised in the present case and, for this reason, should have been considered.37 Judge Accetto also speculated about the reasons for putting EU law aside by the Court. One of them could be the sheer na- ture of EU law which provides for addition- al protection of workers’ rights. Should the Court find the disputed provisions of the Intervention Act inadmissible already on the grounds of Slovenian (domestic) law, the effect of EU law would not be decisive. Nevertheless, in his view, because the Court relied heavily on the ILO Convention No. 158 and the ESC, it could have, a fortiori, assessed the compatibility of the said provi- sions with EU law as well.38 4. Conclusion Before the decision was rendered, the contested provisions had attracted much 36 Ibid., para. 5. 37 Separate concurring opinion of Judge Accetto, para. 6. 38 Ibid., para. 7. 390 Zbornik znanstvenih razprav – LXXXII. letnik, 2022 attention. Many issues concerning the contested Intervention Act were raised by legal scholars, politicians, and the civil so- ciety. All pointed out that they interfered with the fields of labour law and social se- curity law significantly and permanently. A question whether those provisions pres- ent an admissible, appropriate, and pro- portionate measure limiting the human right to work was raised. Doubts were put forward, whether it is suitable to introduce a systematic and permanent change by an intervention law adopted to mitigate the consequences of the COVID-19 epi- demic.39 Furthermore, the said provisions were opposed because they added to the problem of low economic activity of older persons and, as such, contradicted pen- sion and disability insurance provisions aiming to encourage later retirement. It was also stressed that older workers, now unemployed persons, find it hard to be- come reemployed, thus, such a measure would have ultimately deprived them of significant social security rights and ben- efits. In addition, it was emphasised that the legislative changes contradicted the principle of legal certainty and predicta- bility. By leaving the workers’ position to the complete discretion of the employer, 39 The measure was by no means associated with the COVID-19 epidemic. Additionally, a key feature of intervention laws is their transitionary nature. Yet, dismissing workers who fulfil retirement conditions, in practice, constitutes an irreparable measure for the dis- missed older workers. Due to a significantly difficult employability after meeting the re- tirement conditions, the workers would have most likely retired permanently. workers’ private autonomy was allegedly put at severe risk.40 In a broader sense, a complete subordination of older workers in relation to their employers could also interfere with their personality rights and personal dignity. Finally, the relevant pro- visions were also problematised in terms of unjustified and unequal treatment of older persons. The Advocate of the Principle of Equality made an extensive assessment of discrimination of such provisions. Breach of anti-discrimination legislation was also invoked by the trade unions as initiators of the review procedure. Notwithstanding all the issues and concerns mentioned above, the Court refrained from addressing most of the substantive questions arising out of the challenged provisions of the Intervention Act. It reversed them for a formal reason only—because of their inconsistency with the relevant international treaties (exclud- ing EU law). Accordingly, the main sub- stantive question about the merits of plac- ing a pensionable age as a “valid (business) reason” for a unilateral dismissal remained unanswered.41 This conclusion is indicat- ed in the concurring separate opinion of Judge Accetto as well. Another remained uncertainty is whether the retirement age (subject to 40 To illustrate, a sudden and unpredicted loss of employment may affect the dismissed indi- viduals’ ability to assume and fulfil financial commitments (credit loans, private insuranc- es, etc.). See, for example, Bagari and Strban, 2021, pp. 9–29; Mišič, 2021, pp. 79–95. 41 Constitutional Court of the RS Decision on Joint Cases Nos. U-I-27/21 and U-I-16/21-17 from 18 November 2021, paras. 18 and 27. 391 Zarja Hude – Unilateral Termination of Employment of Pensionable Workers Held Unconstitutional – Between Equal Treatment, the Principle of Legality and Pure Formalism national law and practice regarding retire- ment) set forth by the Recommendation could be interpreted as being covered by Article 5 of the ILO Convention No. 158, which specifies a non-exhaustive42 list of non-valid reasons for terminating the employment contract. Even though the Recommendation is not directly binding on the Republic of Slovenia, its analysis remains important – deviation from the Recommendation can ultimately result in a misuse of the binding ILO document (and the essentially analogous ESC). In conclusion, although the interested public has been eagerly awaiting the deci- sion of the Court on the subject matter, the decision is silent on key substantive issues brought by the case at hand. The Court significantly narrowed its judgement down to whether the disputed provisions of the Intervention Act contradict the relevant international treaties (excluding EU law) and, consequently, Article 8 (and Article 153) of the Constitution. Nonetheless, such a decision certainly confirmed the contested amendment’s unconstitutional nature. Therefore, the decision provides a solid employment safeguard promoting the older workers to remain economically active even after they may – and not shall – retire. 42 Article 5 of the ILO Convention states: “The following, inter alia, shall not consti- tute a valid reason for termination […]”. Recommendation is adding the following: “In addition to the grounds referred to in Article 5 […] the following should not con- stitute valid reasons for termination […] age, subject to national law and practice regarding retirement […]” Literature Conclusions of the European Committee of Social Rights (ECSR) 2020 con- cerning Armenia, . Conclusions of the European Committee of Social Rights (ECSR) 2020 concerning Turkey, . European Committee of Social Rights (ECSR), Statement of interpretation on Article 24 of the European Social Charter: on age and termination of employment, . Mišič, Luka (2021) ‘Socialnopravna vroči- ca slovenskega zakonodajalca: o obme- jnih in starejših delavcih ter o predlogu (proti)socialne kapice’, Javna Uprava 57(1-2), pp. 7–23, 147–148. Bagari, Sara; Strban, Grega (2021) ‘De- lovno- in socialnopravna vpraša- nja “prisilne upokojitve”’, Delavci in delodajalci 21(1), pp. 9–29.