Chamber of Crafts to the Constitutional Court

126/2010-0-0
Download Judgment: English Macedonian

The Chamber of Crafts, the petitioner, challenged a provision from the Law on Public Health (the Law) regulating the conditions under which cosmeticians could exercise their craft. The law required cosmeticians to obtain a permit from the Ministry of Health, on top of existing requirements for certification as a craftsperson. The Chamber argued that these provisions were contrary to Article 55 (para. 2) of the Constitution, which granted citizens a right to work under equal business conditions and provided for equality before the law for all entities. It considered that the requirement to obtain a permit from the Ministry of Health placed an unnecessary burden on small businesses, as craftspersons were already required to obtain vocational training diplomas, set up and equip an appropriate workspace, and register in the craftsperson register. The additional costs of work approvals and the unnecessary absenteeism they might cause could result in dissatisfaction amongst customers.

The Court held the provision to be consistent with the Constitution. It first considered that craftspersons activities were not only regulated by the Law on Craftsmanship Activity, but were also subject to other laws, including the Company Law and the Law on Public Health. Taken as a whole, this legislative regime clearly intended that certain activities would be subject to additional licencing or permissions from state authorities.

It then pointed out that the services provided by cosmeticians, including traditional and complementary medicine, tattooing, skin treatments, nonsurgical liposuction, and Botox, had a potential to cause serious damage to health. They therefore could not be left unregulated by the State to be borne at the citizen’s own risk. Further, citizens had a right to health care under Article 39 of the Constitution, and obtaining a permit from the Ministry of Health allowed cosmeticians to fulfill their constitutional duties to protect other people’s right to health while undertaking their work. The legislature had therefore appropriately determined the balance between the individual interest in running cosmetic service businesses and the State’s obligation to protect the health of citizens.

The Court also considered that the provision did not violate the requirement for equal legal treatment under Article 55(2), as all persons performing cosmetic services on skin were subject to the same provision.

“This, above all, serves as a consideration that the unskilled application of the care and beauty methods, which constitute medical cosmetology, can cause infections and other side effects to the health of the people, that can be of temporary, but also of permanent character, and thus, their performance cannot be left at citizen’s own risk to be subject to such activities performed by persons who, among other things, do not have the necessary permit from the Ministry of Health. In this way, the state fulfills its protective role in the occurrence and prevention of communicable and non-communicable diseases which can cause serious damage to the health of the people who, led by the contemporary lifestyle and socio-economic factors, become more frequent visitors to care and beauty parlors.” Section 4.

“Indeed, according to Article 39 of the Constitution, every citizen is guaranteed their right to health care. The citizens have the right and the duty to protect and promote their own health and the health of others. Thus, with obtaining the adequate permit from the Ministry of Health, the performers of the cosmetic activity fulfil their constitutional duty to protect the health of others while performing their activity. On the basis of the above stated, the Court marked that, with the contested provisions, the legislator reached an equilibrium between the individual interest for performing the cosmetic service activity and the obligation to protect the health of citizens as public interest.” Section 4.

View full summary and print   |   Download summary as PDF