Abstrakt
The chapter analyses the judicial review of social welfare rights in the Czech Republic. Generally, the main methodology used by the Czech Constitutional Court for judicial review of fundamental rights is the proportionality test.
For review of social and economic rights, however, the Court has developed a special methodology which is largely based on the rational basis review and shows a larger degree of deference towards the legislature. In the view of the Court, this difference in approach is necessary due to a specific nature of social rights which is underlined by a specific constitutional provision.
The author argues that although a specific approach might be justified in the cases concerning social rights, the methodology used by the Court is inappropriate and rather a proportionality test should be used. To support this thesis, the constitutional setting and its origins is described, and then a landmark decision concerning the right to free medical care is explored and analyzed.
On this basis, the author proposes an alternative approach to judicial review of social rights.