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Content updated: 12-06-2019 13:42

The legal regulation governing the remuneration of municipal mayors and deputy mayors is in conflict with the Constitution

29-05-2019

By its ruling adopted today, the Constitutional Court has declared Item 5 of Section I of the Annex to the Law on the Remuneration of State Politicians and State Officials (hereinafter referred to as the Law), establishing the coefficients of the positional salary of municipal mayors and deputy mayors, to be in conflict with the provision “Everyone […] shall have the right […] to receive fair pay for work” of Paragraph 1 of Article 48 of the Constitution.

The impugned legal regulation prescribed that a larger coefficient of the positional salary was applied to calculate the positional salary of the mayors and deputy mayors of those municipalities that have more than 100 000 residents, compared to the mayors and deputy mayors of smaller municipalities. In other words, the remuneration of municipal mayors and deputy mayors was dependent on the size of the municipality and all municipalities were divided into two groups according to the sole criterion – the number of residents of the municipality, i.e. depending on whether this number was less or more than 100 000 residents. According to the data of the Population Register of the Republic of Lithuania, under this legal regulation, the mayors and deputy mayors of 5 municipalities received a higher positional salary than the mayors and deputy mayors of the remaining 55 municipalities.

The Constitutional Court recalled in the ruling that the right, consolidated in Paragraph 1 of Article 48 of the Constitution, to receive fair pay for work means the right of a person to receive such remuneration for work that would be fair in view of, among other things, the nature of the performed work, the complexity and scope of work functions, responsibility for carrying out these functions, the particularities of the position held, and the professional level and qualifications of the person. Under the Constitution, there is no tolerance for such a legal regulation that would establish the unified or substantially the same amount of remuneration for persons remunerated from the funds of the state or municipal budget if they hold positions different in terms of the complexity and scope of the performed functions and responsibility and have a different professional level and different qualifications.

In its ruling of 30 April 2013, the Constitutional Court noted that the right, guaranteed in Paragraph 1 of Article 48 of the Constitution, to receive fair pay for work must be ensured, among other things, by regulating the activity of state and municipal politicians. When establishing the legal regulation governing the activity of state and municipal politicians, the legislature must take into account, among other things, the specific nature of this activity; the specific nature of the said activity is determined by the following aspects stemming from the Constitution: the function of politicians to represent the interests of the Nation, the state, or residents of a certain municipality; the powers of politicians to decide questions related to the formation, implementation, and control over the implementation of policies pursued by the state or those pursued in certain spheres of state governance or in spheres assigned to municipal competence; as well as the related requirements for accountability to the public and publicity, the duties of representation, and other duties.

In the context of the constitutional justice case at issue, the provision “Everyone […] shall have the right […] to receive fair pay for work” of Paragraph 1 of Article 48 of the Constitution was interpreted in conjunction with Paragraph 3 of Article 119 of the Constitution, under which the procedure for the organisation and activities of self-government institutions must be established by means of a law. The Constitutional Court held that, under Paragraph 3 of Article 119 of the Constitution, the legislature also has the discretion to establish the legal regulation governing the organisation of the work and the system of the remuneration of municipal council members, who are elected, among other things, to organise the activity of the respective municipal councils, implement the related powers, and represent the respective municipalities (as, for instance, persons holding the office of mayor or deputy mayor as provided for by law). However, when the amount of the remuneration of mayors (deputy mayors) is established by means of a legal regulation, regard must be paid to the imperative of fair pay for work, as laid down in Paragraph 1 of Article 48 of the Constitution, as well as to the circumstances leading to the necessity to differentiate the amount of this remuneration.

In addition to the number of residents living in their territory, municipalities can, among other things, considerably vary in their size and the scope of issues assigned to their competence due to the significance and complexity of these issues. Thus, the scope of the activity of municipal politicians and the extent of their responsibility can also vary due to the particularities of the municipality concerned; therefore, if the amount of the remuneration of mayors (deputy mayors) is differentiated by means of a legal regulation, account must also be taken of this specific nature of their activity.

The imperative of fair pay for work, as consolidated in Paragraph 1 of Article 48 of the Constitution, gives rise to the requirement for the legislature, when differentiating the amount of the remuneration of municipal mayors and deputy mayors, to draw on the clear and objective criteria laid down by means of a law, which constitute an essential element of the right to receive fair pay for work. The amount of the remuneration of municipal mayors and deputy mayors may be differentiated solely in view of the number of municipal residents; however, the differentiation of the amount of the said remuneration according to this sole criterion may not violate the constitutional imperative of fair pay for work. Exercising its discretion and taking into account the particularities and differences that exist among municipalities and have influence on the scope of the activity of mayors and deputy mayors and the extent of their responsibility, the legislature may also provide for other objective criteria determining the amount of the remuneration of mayors and deputy mayors.

The Constitutional Court also noted in this ruling that, under the Constitution, among others, Paragraph 1 of Article 48 thereof, the legislature may not establish such a legal regulation under which the amount of the remuneration of municipal mayors (deputy mayors) would be the same despite the fact that the complexity of their functions, the scope of their activity, the nature of their work, and the extent of their responsibility for carrying out the said functions considerably differ due to the particularities of the municipalities concerned, among other things, differences in their size and the number of their residents, as well as their legal status.

Assessing the constitutionality of the impugned legal regulation, the Constitutional Court noted that this legal regulation created the preconditions for the situation in which the same coefficient of the positional salary was applied to calculate the positional salary for the mayors and deputy mayors of particular municipalities falling within the same group, although these municipalities considerably differ from one another, among other things, in their size, the number of their residents, or other particularities determining the different scope of the activity performed by the respective mayors and deputy mayors and the extent of their responsibility for carrying out the assigned functions. In addition, under this legal regulation, the mayors of most of the 55 municipalities falling under the second group are heads of the municipal councils of a different size (from 15 to 25 members) and have only one deputy; therefore, the scope of the activity performed by these mayors and the extent of their responsibility also differ in this respect, although, under the impugned legal regulation, the same coefficient of the positional salary was applied to calculate the amount of their positional salary.

In view of this, the Constitutional Court drew the conclusion that the differentiation of the coefficients of the positional salary of municipal mayors and deputy mayors under the impugned legal regulation was insufficient, insofar as municipalities were divided into two groups according to the sole criterion – the number of municipal residents (i.e. depending on whether this number was less or more than 100 000 residents). The impugned legal regulation did not comply with the requirement, stemming from Paragraph 1 of Article 48 of the Constitution, not to establish such a legal regulation under which the amount of the remuneration of municipal mayors (deputy mayors) would be the same despite the fact that the complexity of their functions, the scope of their activity, the nature of their work, and the extent of their responsibility for carrying out the said functions differ due to the particularities of the municipalities concerned. Consequently, having established the impugned legal regulation, the legislature disregarded the imperative of fair pay for work, which is consolidated in Paragraph 1 of Article 48 of the Constitution.

Under Paragraph 1 of Article 107 of the Constitution, a legal act (or part thereof) may not be applied from the day of the official publication of the decision of the Constitutional Court that the legal act in question (or part thereof) is in conflict with the Constitution. Thus, if this ruling of the Constitutional Court, declaring the legal regulation governing the remuneration of mayors and deputy mayors to be in conflict with the Constitution, were officially published immediately after its public pronouncement at the hearing of the Constitutional Court, the legal relations connected with the remuneration of municipal mayors and deputy mayors would remain unregulated and legal uncertainty would be created; this, in principle, would disturb the payment of remuneration to municipal mayors and deputy mayors. In order to remove the said legal uncertainty, a certain period of time is necessary for the legislature. In view of this, the Constitutional Court held that this ruling of the Constitutional Court would be officially published in the Register of Legal Acts on 2 January 2020.

In the context of this constitutional justice case, the Constitutional Court noted that the constitutional principles of the protection of legitimate expectations, legal certainty, and legal security imply that, in implementing this ruling of the Constitutional Court, with respect to the municipal mayors elected, as well as the deputy mayors appointed, for the term of office of the municipal councils elected during the elections to municipal councils in 2019, the legislature is not allowed to provide, by means of a law, for remuneration lower than that established for them at the beginning of their term of office.

The full text of this ruling of the Constitutional Court can be found on the website of the Constitutional Court at http://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta1934/content.