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On returning a petition to the petitioner

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

 DECISION

ON THE PETITION OF A GROUP OF MEMBERS OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA, THE PETITIONER, REQUESTING AN INVESTIGATION INTO THE COMPLIANCE OF ARTICLE 2 OF THE REPUBLIC OF LITHUANIA’S LAW AMENDING ARTICLE 15 OF THE LAW ON HEALTHCARE ESTABLISHMENTS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 2 May 2014, No. KT16-S11/2014
Vilnius

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Vytautas Greičius, Danutė Jočienė, Pranas Kuconis, Gediminas Mesonis, Vytas Milius, Egidijus Šileikis, and Dainius Žalimas

The court reporter—Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania considered, at its procedural sitting, the petition (No. 1B-29/2014) of a group of members of the Seimas of the Republic of Lithuania, the petitioner.

The Constitutional Court

has established:

The Constitutional Court has received the petition (No. 1B-29/2014) of a group of members of the Seimas requesting an investigation into:

“– whether Paragraphs 2, 3 and 4 of Article 2 of the Republic of Lithuania’s Law (No. XI-1770) Amending Article 15 of the Law on Healthcare Establishments (Official Gazette Valstybės žinios, 2011, No. 154-7261), adopted on 1 December 2011, to the extent that the conditions of the employment contracts of the heads of the establishments of the NHSL are changed regarding the term of the validity of an employment contract, in view of the content of norms and the scope of regulation, are not in conflict with the principle of a state under the rule of law consolidated in the Constitution of the Republic of Lithuania, and with the principles of legitimate expectations, legal certainty, legal security, the equality of rights, and the non-retroactive validity of laws,

– whether Article 2 of the Republic of Lithuania’s Law (No. XI-1770) Amending Article 15 of the Law on Healthcare Establishments (Official Gazette Valstybės žinios, 2011, No. 154-7261), adopted on 1 December 2011, to the extent that no procedure for the payment of compensation is provided for the dismissed heads of the establishments of the NHSL, in view of the content of norms and the scope of regulation, is not in conflict with the principle of a state under the rule of law consolidated in the Constitution of the Republic of Lithuania, and with the principles of legitimate expectations, legal certainty, and legal security.”

The Constitutional Court

holds that:

  1. On 1 December 2011, the Seimas adopted the Republic of Lithuania’s Law Amending Article 15 of the Law on Healthcare Establishments, by Article 1 whereof it amended Paragraph 1 (wording of 26 June 2007) of Article 15 of the Law on Healthcare Establishments and set it forth as follows:

“The heads of state and municipal budgetary and public establishments of the NHSL shall be employed by public tender. The heads of state and municipal budgetary and public establishments of the NHSL, with the exception of the establishments that employ ten or less health care specialists holding a medical practice licence, shall be employed by public tender for a period of five years. The founder or the general meeting of the part-owners of a respective establishment shall organise the public tender and approve its regulations.”

It should be noted that the petitioner does not impugn the compliance of Paragraph 1 (wording of 1 December 2011) of Article 15 of the Law on Healthcare Establishments with the Constitution.

Article 2 “Final Provisions” of the Law Amending Article 15 of the Law on Healthcare Establishments, which is, to a certain extent, impugned by the petitioner, provides:

“1. Until the entry into force of this Law, the persons accepted to the positions of the heads of state and municipal budgetary and public establishments of the National Health System of Lithuania for a particular period (term of office) shall continue to hold the position of the head of the corresponding establishment pending the expiration of their term of office.

  1. The heads of state and municipal budgetary and public establishments of the National Health System of Lithuania that are not specified in Paragraph 1 of this Article, who, on the day of the entry into force of this Law, have been holding their position for five years or less shall continue to hold the office of the head of the corresponding establishment for the period of five years as from the day that this Law came into force.
  2. The heads of state and municipal budgetary and public establishments of the National Health System of Lithuania that are not specified in Paragraph 1 of this Article, who, on the day of the entry into force of this Law, have been holding their position for more than five years but less than ten years shall continue to hold the office of the head of the corresponding establishment until a ten-year period of their work in the position of the head of that establishment is reached. The situations where a ten-year period is reached within one year from the day of the entry into force of this Law shall be an exception; such heads of state and municipal budgetary and public establishments of the National Health System of Lithuania shall continue to hold the position of the establishment for the period of one year as from the day that this Law came into force.
  3. The heads of state and municipal budgetary and public establishments of the National Health System of Lithuania that are not specified in Paragraph 1 of this Article, who, on the day of the entry into force of this Law, have been holding their position for ten years or more shall continue to hold the office of the head of the corresponding establishment for the period of one year as from the day that this Law came into force.
  4. When the period established in Paragraphs 1, 2, 3, or 4 of this Article expires, the head of a state and municipal budgetary and public establishment of the National Health System of Lithuania is dismissed from work. When three months remain until the day of the dismissal of the head of the establishment, the founder of the establishment or the general meeting of the part-owners of that establishment shall organise the public tender for the position of its head.
  5. In situations where the reorganisation of state and municipal budgetary and public establishments of the National Health System of Lithuania took place or a part-owner or the owner (or the subject implementing the rights of the latter) of the establishment became different, in the situations specified in Paragraphs 2, 3 or 4 of this Article, the calculation of the work record of the heads of state and municipal budgetary and public establishments of the National Health System of Lithuania, who work after the circumstances specified above, shall include the work record as the head of one of the reorganised establishments until its reorganisation took place, or as the head of the establishment until the change of a part-owner or the owner (or the subject implementing the rights or the latter) of the establishment.
  6. This law shall come into force on 1 July 2012.”
  7. The petitioner impugns, on the grounds of the content of norms and the scope of regulation, the compliance of Paragraphs 2, 3 and 4 of Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments (wording of 1 December 2011) to the extent that the conditions of the employment contracts of the heads of the establishments of the NHSL are changed—the term of the validity of an employment contract is fixed—“with the principle of a state under the rule of law consolidated in the Constitution of the Republic of Lithuania, and with the principles of legitimate expectations, legal certainty, legal security, the equality of rights, and the non-retroactive validity of laws”. The petitioner also impugns, on the grounds of the content of norms and the scope of regulation, the compliance of Article 2 of the said law, to the extent that no procedure for the payment of compensation is provided for the dismissed heads of the establishments of the NHSL, “with the principle of a state under the rule of law consolidated in the Constitution of the Republic of Lithuania, and with the principles of legitimate expectations, legal certainty, and legal security”.

The Constitutional Court has held on more than one occasion that the principles of legal certainty, legal security, and of the protection of legitimate expectations are elements of the constitutional principle of a state under the rule of law, that the constitutional principle of a state under the rule of law implies that the legislature must direct the power of legal acts to the future and must not allow the retroactive validity of laws and other legal acts, and that the principle of the equality of rights of persons is consolidated in Paragraph 1 of Article 29 of the Constitution.

The notion “NHSL” that is pointed out by the petitioner is defined as the National Health System of Lithuania regulated by the Law on the Health System (Paragraph 2 of Article 2 of the Law on Healthcare Establishments (wording of 24 November 1998)). Thus, the petition of the petitioner should be regarded as the petition requesting an investigation into whether:

– Paragraphs 2, 3 and 4 of Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments (wording of 1 December 2011), to the extent that the conditions of the employment contracts of the heads of the establishments of the National Health System of Lithuania, as regulated by the Law on the Health System, are changed—the term of the validity of an employment contract is established—in view of the content of norms and the scope of regulation, are not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law;

– Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments (wording of 1 December 2011), to the extent that it provides no procedure for the payment of compensation for the dismissed heads of the establishments of the National Health System of Lithuania, as regulated by the Law on the Health System (hereinafter also referred to as the NHSL), in view of the content of norms and the scope of regulation, is not in conflict with the constitutional principle of a state under the rule of law.

  1. According to Item 8 of Paragraph 1 of Article 66 of the Law on the Constitutional Court, a petition for an investigation into the compliance of a legal act with the Constitution must contain the position of the petitioner concerning the compliance of an appropriate act with the Constitution and the legal support of such a position containing the references to laws.

When construing the aforesaid provisions of the Law on the Constitutional Court, the Constitutional Court has held on more than one occasion that “the position of the petitioner concerning the compliance of a legal act (part thereof) with the Constitution according to the content of the norms and/or the scope of regulation must be indicated clearly and unambiguously, the petition must contain the arguments and reasoning grounding the doubt of the petitioner that the legal act (part thereof) is in conflict with the Constitution. Consequently, the petition requesting an investigation into the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the scope of regulation must clearly indicate concrete articles (parts thereof), items of the legal act the compliance of which with the Constitution is doubtful from the petitioner’s viewpoint, also concrete provisions—norms and/or principles—of the Constitution, with which, in the opinion of the petitioner, the concretely indicated articles or items of the impugned legal act are in conflict (the Constitutional Court’s decision of 11 December 2012). The petition requesting an investigation into the compliance of a legal act (part thereof) with the Constitution according to the content of norms and/or the scope of regulation must also clearly set forth the legal reasoning grounding the doubt of the petitioner as regards every concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution is doubtful to the petitioner. Otherwise, the petition requesting an investigation into the compliance of a legal act (part thereof) with the Constitution in view of the content of norms and/or the scope of regulation must be considered to be not in line with the requirements of Article 66 of the Law on the Constitutional Court” (the Constitutional Court’s decision of 16 April 2004, its ruling of 12 December 2005, its decisions of 29 March 2006, 19 March 2010, 5 March 2012, 11 December 2012, and 8 January 2013).

It should be noted that, if the petition requesting an investigation into the compliance of a legal act (part thereof) with the Constitution according to the content of norms and/or the scope of regulation indicates neither any concrete articles (parts thereof), items of the legal act, the compliance of which with the Constitution is doubtful to the petitioner, nor concrete provisions—norms and/or principles—of the Constitution with which, in the opinion of the petitioner, the concretely indicated articles (parts thereof) or items of the impugned legal act are in conflict according to the content of norms and/or the scope of regulation, nor the legal reasoning grounding the doubt of the petitioner concerning each concretely indicated article (part thereof) or item of the impugned legal act (part thereof), the compliance of which with the concretely indicated provisions of the Constitution according to the content of norms and/or the scope of regulation is doubtful to the petitioner, and if such a petition were accepted at the Constitutional Court and a case were commenced subsequent to it, one would also restrict the rights of the party concerned, the state institution that has passed the impugned legal act, since it would be more difficult for the party concerned to present explanations concerning the arguments of the petitioner and to prepare for the judicial consideration (the Constitutional Court’s decisions of 16 April 2004, 19 March 2010, 11 December 2012, and 8 January 2013).

  1. When impugning the compliance of the compliance of Paragraphs 2, 3 and 4 of Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments (wording of 1 December 2011), to the extent that the conditions of the employment contracts of the heads of the establishments of the NHSL are changed—the term of the validity of an employment contract is established—in view of the content of norms and the scope of regulation, with the constitutional principle of a state under the rule of law, the petitioner asserts that, prior to the entry into effect of the Law Amending Article 15 of the Law on Healthcare Establishments, all heads of the establishments of the NHSL, with the exception of university hospitals, worked under termless employment contracts and had acquired such a right under procedure established by law. After the said law had come into force, under the legal regulation established in Paragraphs 2, 3, and 4 of Article 2 thereof, the conditions of the employment contracts of the same heads of the establishments of the NHSL were changed—the term of the validity of an employment contract was established, thus, their legal situation was worsened. Due to this fact the petitioner has faced doubts whether the principles of legal certainty, legal security, and of the protection of legitimate expectations, as well as the requirement that the retroactive validity of law must not be allowed, have not been violated.

The petitioner does not substantiate how the requirement that the retroactive validity of law must not be allowed, which stems from the constitutional principle of a state under the rule of law, has been violated. The impugned and all related legal regulation makes it clear that, upon the expiration of the periods established in Paragraphs 1, 2, 3, or 4 of Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments, the heads of state and municipal budgetary and public establishments of the National Health System of Lithuania are dismissed from work not earlier than upon the expiration of one year as from the entry into force of the said law.

The petitioner also refers to the provisions of the constitutional doctrine formulated by the Constitutional Court regarding legal certainty, legal security, and the protection of legitimate expectations. The petitioner mentions, among such provisions, the provision that “the principle of legitimate expectations does not mean that the changing of the existing legal regulation (a certain system) is not allowed, however, in the course of the restructuring the system the Constitution must be heeded”. The petitioner refers to the Constitutional Court’s rulings of 4 July 2003, 13 December 2004, 22 October 2007, and 24 December 2008, as well as to its decision of 20 April 2010, which, according to the petitioner, indicated that in such a case a sufficient transitional period must be provided for, during which the persons who have a certain job would be able to prepare for such changes.

The Constitutional Court’s decision of 20 April 2010, which is pointed out by the petitioner and which referred to the Constitutional Court’s rulings that were also specified by the petitioner, held the following:

“The Constitutional Court has noted that the constitutional protection of acquired rights and legitimate expectations does not mean that the system of pensionary maintenance established by law may not be reorganised. While reorganising this system, the Constitution must be observed in every case. The system of pensions may be reorganised only by law, only guaranteeing the old age and disability pensions provided for by the Constitution, as well as observing undertaken obligations by the state, which are not in conflict with Constitution, to pay corresponding payments to persons who meet the requirements established by law. If, while reorganising the pensionary system, the pensions, established by law, that are not directly specified in Article 52 of the Constitution were eliminated, or the legal regulation of these pensions were amended in essence, the legislature would be obligated to establish a fair mechanism for compensation of the existing losses to the persons who had been granted and paid such pensions. The legislature, while reorganising the system of pensions so that the bases for pensionary maintenance, persons to whom the pension is granted and paid, the conditions of granting and payment of pensions, the amounts of pensionary maintenance are changed, must provide for a sufficient transitional time period during which the persons who have a corresponding job or perform corresponding service which entitles them to a respective pension under the previous regulation, would be able to prepare for these changes.”

Thus, the petitioner invokes the provisions of the official constitutional doctrine regarding the constitutional protection of acquired rights and legitimate expectations in the process of the restructuring of the system of pensionary maintenance, however, it does not provide any grounds how they are related to the provisions of the impugned law that regulate not the restructuring of the system of pensionary maintenance, but the changing of one of the conditions—the term of the validity—of an employment contract and that, in comparison with the participants of the system of pensionary maintenance, this condition is applied to a small category of persons—the heads of state and municipal budgetary and public establishments of the National Health System of Lithuania. Consequently, first of all, the petitioner did not provide any legal arguments that the impugned legal regulation restructures a certain system and that a certain transitional period must be established in order to prepare for these changes. In this context, it should be mentioned that the petitioner does not point out that the provisions of the Law on Healthcare Establishments and those of the Law Amending Article 15 of the Law on Healthcare Establishments do not preclude the persons dismissed for the positions of the heads of state and municipal budgetary and public establishments of the NHSL from participating in the public tenders for taking those positions again.

It is clear from the impugned legal regulation that it established the terms of validity of employment contracts, whilst the petitioner regards them as a transitional period. From this aspect, it should be noted that, although the petitioner impugns the constitutionality of Paragraphs 2, 3, and 4 of Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments, however, the petitioner’s statement that the transitional period is too short is linked to the heads of the establishments of the NHSL who have the biggest experience, to whom the period of the validity of one year of the employment contract was established (Paragraph 4, and, to a certain extent, Paragraph 3 of Article 2), upon the expiration of which they had to be dismissed from office. It should be noted that the petitioner only raises a doubt whether such a period was sufficient so that the heads of the establishments of the NHSL could change their qualification, however, it does not provide any legal arguments substantiating it. Its petition does not make it clear why the periods (terms of the validity of employment contracts) from one until five years, as established in the impugned Paragraphs 2 and 3 of Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments, are insufficient. In addition, the petitioner has not pointed out the fact that, as regards the heads of the establishments of the NHSL, the time for their adjustment to the changes made by the Law Amending Article 15 of the Law on Healthcare Establishments should be calculated not from the day of the entry into force of this law—1 July 2012—but as from the day of the official publication of this law, i.e., as from 17 December 2011. Thus, in reality, the transitional period referred to as minimal by the petitioner was not one year, but more than a year and a half.

When expressing its doubts about the compliance of Paragraphs 2, 3 and 4 of Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments with Paragraph 1 of Article 29 of the Constitution, the petitioner provides a general statement that the work record of the heads of the establishments of the NHSL determines different legal regulation that is being impugned, however, it provides no legal arguments why the different work record of the heads of the establishments of the NHSL cannot objectively justify such differentiated legal regulation in view of, among other things, the purpose of the adoption of the impugned law.

  1. When impugning the compliance of Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments (wording of 1 December 2011), to the extent that it provides no procedure for the payment of compensation for the dismissed heads of the establishments of the NHSL, with the constitutional principle of a state under the rule of law, the petitioner asserts that Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments does not provide for compensation for the dismissed heads of the establishments of the NHSL for the losses incurred by them due to the changed legal regulation. The heads of the establishments of the NHSL who worked under termless employment contracts and had a long work record had reasonable expectations that in case of their dismissal from work due to reasons not depending on them they would be paid the dismissal payment, dependent on the length of work at that establishment of the NHSL, provided for in Paragraph 1 of Article 140 of the Labour Code of the Republic of Lithuania, however, after the legal regulation had been changed and the employment relations of the heads of the establishments of the NHSL had become term-based, they lost their right to such dismissal payment.

The petitioner invokes the following doctrinal provisions formulated in the Constitutional Court’s ruling of 13 May 2005: “In the context of the constitutional justice case at issue, it needs to be noted that if an economic entity acquired the right to engage in a certain economic activity and implemented this right under valid laws and other legal acts, thus, when the legal regulation of such economic activity is changed so that the conditions of this economic activity are worsened or this economic activity is discontinued at all, while taking account of why the legal regulation of the said economic activity is changed and to what extent it is changed, also taking account of other important circumstances, there may arise a duty to the state to recompense (compensate) the economic entities and other persons for the losses which they experience due to the changed legal regulation.”

It should be noted that the aforesaid Constitutional Court’s ruling dealt with the issues of the compliance of the legal regulation of hunting as an economic activity with the Constitution and the specified provisions of the official constitutional doctrine were formulated in the context of that constitutional justice case. It is obvious that the legal provisions, impugned by the petitioner, regulating the relations of the dismissal from office of the heads of the establishments of the NHSL are of a character different from hunting and that such relations are related to employment but not to economic activity. Therefore, the petitioner does not have any grounds to invoke the legal position set forth in the said Constitutional Court’s ruling as the one having the significance of a precedent. The petitioner has not provided any other legal arguments substantiating the requirement stemming from the Constitution to establish, namely in Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments (wording of 1 December 2011), the compensation for the dismissed heads of the establishments of the NHSL for the losses that they incur, according to the petitioner, due to the changed legal regulation. It also needs to be mentioned that the payment of dismissal payment in cases of the severance of employment relations is regulated by the Labour Code, whose certain provisions are invoked by the petitioner, however, the petitioner neither assesses these provisions in a systemic manner with other provisions of the said code and other provisions of Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments, nor impugns the compliance of these provisions with the Constitution.

  1. Under Item 1 of Paragraph 3 and Paragraph 5 of Article 66 of the Law on the Constitutional Court, the petition shall be submitted to the Constitutional Court along with 30 duplicate copies of the entire text of the impugned legal act.

It should be noted that the petition of the petitioner fails to meet this requirement, too.

  1. In the light of the foregoing arguments, it should be held that the petition (No. 1B-29/2014) of the group of members of the Seimas, the petitioner, does not meet the requirements established in Item 8 of Paragraph 1, Item 1 of Paragraph 3, and Paragraph 5 of Article 66 of the Law on the Constitutional Court.

Under Article 70 of the Law on the Constitutional Court, in the case that a petition (part thereof) fails to comply with the requirements set forth in Article 66 of the Law on the Constitutional Court, the petition is returned to the petitioner. The returning of a petition shall not take away the right to apply to the Constitutional Court according to the general procedure after the removal of the deficiencies thereof.

  1. In view of what has been stated above, the conclusion should be drawn that there are grounds to return the petition to the group of members of the Seimas, the petitioner, requesting an investigation into whether:

– Paragraphs 2, 3 and 4 of Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments (wording of 1 December 2011), to the extent that the conditions of the employment contracts of the heads of the establishments of the National Health System of Lithuania, as regulated by the Law on the Health System, are changed—the term of the validity of an employment contract is established—in view of the content of norms and the scope of regulation, are not in conflict with Paragraph 1 of Article 29 of the Constitution and the constitutional principle of a state under the rule of law;

– Article 2 of the Law Amending Article 15 of the Law on Healthcare Establishments (wording of 1 December 2011), to the extent that it provides no procedure for the payment of compensation for the dismissed heads of the establishments of the National Health System of Lithuania, as regulated by the Law on the Health System, in view of the content of norms and the scope of regulation, is not in conflict with the constitutional principle of a state under the rule of law.

Conforming to Paragraphs 3 and 4 of Article 22, Paragraph 2 of Article 25, Article 28, and Article 70 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania adopts the following

decision:

To return the petition to a group of members of the Seimas, the petitioner, requesting an investigation into whether:

– Paragraphs 2, 3 and 4 of Article 2 of the Republic of Lithuania’s Law Amending Article 15 of the Law on Healthcare Establishments (wording of 1 December 2011), to the extent that the conditions of the employment contracts of the heads of the establishments of the National Health System of Lithuania, as regulated by the Law on the Health System, are changed—the term of the validity of an employment contract is established—in view of the content of norms and the scope of regulation, are not in conflict with Paragraph 1 of Article 29 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law;

– Article 2 of the Republic of Lithuania’s Law Amending Article 15 of the Law on Healthcare Establishments (wording of 1 December 2011), to the extent that it provides no procedure for the payment of compensation for the dismissed heads of the establishments of the National Health System of Lithuania, as regulated by the Law on the Health System, in view of the content of norms and the scope of regulation, is not in conflict with the constitutional principle of a state under the rule of law.

This decision of the Constitutional Court is final and not subject to appeal.

Justices of the Constitutional Court:                         Elvyra Baltutytė
                                                                                             Vytautas Greičius
                                                                                             Danutė Jočienė
                                                                                             Pranas Kuconis
                                                                                             Gediminas Mesonis
                                                                                             Vytas Milius
                                                                                             Egidijus Šileikis
                                                                                             Dainius Žalimas