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On regulating the work pay of educators and other employees of budgetary establishments

Case No. 19/2013

 

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF PARAGRAPH 3 OF ARTICLE 66 OF THE REPUBLIC OF LITHUANIA’S LAW ON EDUCATION AND THE RESOLUTION OF THE GOVERNMENT OF THE REPUBLIC OF LITHUANIA (NO. 511) “ON IMPROVEMENTS IN THE PROCEDURE FOR THE WORK PAY OF EMPLOYEES OF BUDGETARY ESTABLISHMENTS AND ORGANISATIONS” OF 8 JULY 1993 WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

29 September 2015 No. KT26-N15/2015

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, Algirdas Taminskas, and Dainius Žalimas

The court reporter – Daiva Pitrėnaitė

Alesia Rynkevič, Deputy Head of the Law Division of the Ministry of Social Security and Labour of the Republic of Lithuania, Rūta Juršaitė, Deputy Head of the Labour Law Division of the Labour Department of the said ministry, and Jurgita Šerpatauskienė, chief specialist of the Law Division of the Ministry of Education and Science of the Republic of Lithuania, acting as the representatives of the Government of the Republic of Lithuania, the party concerned

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Article 1 of the Law on the Constitutional Court of the Republic of Lithuania, on 16 September 2015, at the Court’s public hearing, heard constitutional justice case No. 19/2013 subsequent to the petition (No. 1B-26/2013) of the Supreme Administrative Court of Lithuania, the petitioner, requesting an investigation into whether Item 3 (wording of 11 July 2012) of the Resolution of the Government of the Republic of Lithuania (No. 511) “On Improvements in the Procedure for the Work Pay of the Employees of Budgetary Establishments and Organisations” of 8 July 1993, insofar as the Ministry of Education and Science of the Republic of Lithuania is commissioned to establish the schemes of service remuneration (in coefficients) differentiated according to the nature and size of establishments and organisations and according to the length of service of employees, their education and qualifications, while not exceeding the service remuneration (in coefficients) established in the said resolution, as well as it is commissioned to establish other conditions for work pay, as provided for in the said resolution, that are applied in establishing the work pay of a state school (with the exception of higher education schools) and municipal school heads, deputy head for education, head of unit responsible for the organisation of education, teachers, specialists providing assistance to pupils, and other employees participating in the process of education, is in conflict with Items 2 and 7 of Article 94 of the Constitution of the Republic of Lithuania, the constitutional principle of a state under the rule of law, and Paragraph 3 of Article 68 of the Republic of Lithuania’s Law on Education (wording of 17 March 2011).

The Constitutional Court

has established:

I

1. The Supreme Administrative Court of Lithuania, the petitioner, was considering the administrative case in which the members of the Seimas of the Republic of Lithuania impugned the compliance of the provisions of the Order of the Minister of Education and Science of the Republic of Lithuania (No. V-1315) “On the Approval of the Description of the Procedure for the Work Pay of Employees of Educational Establishments and Educational Employees of Other Establishments” of 18 July 2011 with Paragraphs 2 and 3 of Article 68 of the Law on Education (wording of 17 March 2011) (hereinafter also referred to as the Law on Education). The petitioner had doubts concerning the compliance of Item 3 (wording of 11 July of 2012) (pursuant to which the said order of the Minister of Education and Science which was impugned in the administrative case) of the Government Resolution (No. 511) “On Improvements in the Procedure for the Work Pay of Employees of Budgetary Establishments and Organisations” of 8 July 1993 (hereinafter also referred to as government resolution No. 511 of 8 July 1993) with the Constitution and Paragraph 3 of Article 68 of the Law on Education and applied to the Constitutional Court.

On 6 March 2015, the Supreme Administrative Court of Lithuania, the petitioner, informed the Constitutional Court in writing that, in the administrative case, the members of the Seimas had clarified their petition and were requesting to investigate whether the Order of the Minister of Education and Science (No. V-1254) “On the Approval of the Description of the Procedure for the Work Pay of Employees of Educational Establishments and Educational Employees of Other Establishments” of 19 December 2013 (which approved the new Description of the Procedure for the Work Pay of Employees of Educational Establishments and Educational Employees of Other Establishments and recognised the aforementioned order of 18 July 2011 (with subsequent amendments) as no longer valid) was in conflict with the provisions of the Law on Education. In view of the fact that the order of the Minister of Education and Science of 19 December 2013, which is impugned in the administrative case at the time being, was also adopted pursuant to Item 3 (wording of 11 July 2012) of government resolution No. 511 of 8 July 1993, the doubts that had raised to the petitioner concerning the compliance of this item with the Constitution and Paragraph 3 of Article 68 of the Law on Education still remained relevant.

2. The petition is substantiated by the following arguments.

2.1. Under Paragraph 3 of Article 68 of the Law on Education, the Government lays down the procedure for the work pay to a state school (with the exception of schools of higher education) and municipal school heads, deputy heads responsible for education, heads of teaching organising divisions, teachers, specialists providing assistance to pupils and other employees participating in the process of education (hereinafter also referred to as educators of state and municipal schools). Paragraphs 1 and 2 of Article 68 of the Law on Education prescribe that the work remuneration of a state school (with the exception of schools of higher education) and municipal school heads, deputy heads responsible for education, heads of teaching organising divisions, teachers, and specialists providing assistance to pupils depends on the individual’s attained education level, length of educational service, management qualification category or qualification category and complexity of activity. Thus, having consolidated the essential criteria that had to determine the work remuneration of the employees of specified categories, the legislature commissioned the Government to establish a more detailed procedure for their work pay without granting the right to delegate these powers to any other state institution. Disregarding this fact, by Item 3 of the impugned resolution, the Government commissioned the Ministry of Education and Science to establish the schemes of service remuneration (in coefficients) differentiated according to the nature and size of establishments and organisations and according to the length of service of employees, their education and qualifications, as well as other conditions for work pay, as provided for in this resolution, which are to be applied for the educators of state and municipal schools specified in Paragraph 3 of Article 68 of the Law on Education. According to the petitioner, in addition to the very general provisions concerning the work pay of employees of budgetary establishments and a rather detailed legal regulation on additional pay and benefits (grounds and sizes), the government resolution contains no more detailed provisions of the procedure for the work pay, on the grounds of which it would be possible to individualise the limits of coefficients themselves that are established in this government resolution, i.e. to establish the work remuneration of the specific employees of educational establishments – heads of state schools (with the exception of schools of higher education) and municipal schools, deputy heads responsible for education, heads of teaching organising divisions, teachers, and specialists providing assistance to pupils.

After the legislature, in Paragraphs 1 and 2 of Article 68 of the Law on Education, consolidated only the criteria on which the work remuneration of educators of state and municipal schools had to depend, and after the Government did not establish a more detailed procedure for their work pay (among other things, the influence of these criteria on the work remuneration of the aforementioned educators), the commissioning for the Ministry of Education and Science that is consolidated in Item 3 of the impugned resolution may not be understood differently than as the commissioning to establish a detailed procedure for the work pay of educators of state and municipal schools. Therefore, in the opinion of the petitioner, Item 3 (wording of 11 July 2012) of government resolution No. 511 of 8 July 1993 is in conflict with Paragraph 3 of Article 68 of the Law on Education.

2.2. On the grounds of the provisions of the official constitutional doctrine formulated by the Constitutional Court when interpreting Items 2 and 7 of Article 94 of the Constitution, the petitioner states that the Government, while implementing the commissioning by the legislature to establish a certain procedure for the implementation of the law, had to establish this procedure itself and could not delegate its establishment to any other institution; the petitioner also states that the Government had to coordinate its resolutions adopted previously with the norms of the Law on Education, which was adopted subsequently; however, the Government did not do that and did not establish a detailed procedure for the work pay of educators of state and municipal schools. Therefore, the petitioner had doubts whether Item 3 of government resolution No. 511 of 8 July 1993, consolidating the said commissioning of the Government for the Ministry of Education and Science, was in conflict with Items 2 and 7 of Article 94 of the Constitution.

2.3. The petitioner also doubted whether the impugned legal regulation did not violate the constitutional principle of a state under the rule of law, the requirement arising namely from this principle for the law-making subjects to pay regard to the hierarchy of legal acts, as this principle creates the preconditions for regulating, by means of an order of the Minister of Education and Science, the relations which, under Paragraph 3 of Article 68 of the Law on Education, must be regulated by means of the legal acts of not lower-ranking than the government resolution.

II

In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from Gintarė Vizbaraitė, the then Deputy Head of the Law Division of the Ministry of Social Security and Labour, Rūta Juršaitė, Deputy Head of the Labour Law Division of the Labour Department of this ministry, Tomas Daukantas, the then Head of the Law Division of the Ministry of Education and Science, and Jurgita Šerpatauskienė, chief specialist of the same division, the representatives of the Government, the party concerned, in which it was maintained that the impugned legal regulation is not in conflict with Items 2 and 7 of Article 94 of the Constitution, the constitutional principle of a state under the rule of law, and Paragraph 3 of Article 68 of the Law on Education. The position of the representatives of the party concerned is substantiated by the following arguments.

1. Annex 1 of government resolution No. 511 of 8 July 1993, among other things, consolidates the service remuneration of educators in coefficients whose limits for the heads of establishments, their deputies, heads of divisions, specialists, and other employees were established upon the evaluation of their education and complexity and nature of their work, thus, the impugned government resolution is not in conflict with Paragraph 3 of Article 68 of the Law on Education.

2. Under the official constitutional doctrine, laws establish rules of a general character, whilst substatutory legal acts may particularise them and regulate the procedure for their implementation. The Government has the powers to regulate part of the relations specified in the law itself and it can authorise any other institution to regulate some relations specified expressis verbis in the law and the relations which stem from these relations. While investigating the compliance of legal acts with the higher-ranking legal acts, the Constitutional Court investigates both the legal regulation that is explicitly consolidated in these legal acts, and the legal regulation that is consolidated in these legal acts implicitly and is derived from the explicit legal provisions in the course of interpretation of law.

Thus, account should be taken not only of the explicit legal regulation consolidated in Paragraph 3 of Article 68 of the Law on Education, but also of the implicit regulation of the corresponding social relations linked to the general competence of the Ministry of Education and Science established in the Law on Education. While taking account of this competence, the Government could commission the Ministry of Education and Science to elaborate and particularise the provisions of government resolution No. 511 of 8 July 1993, even though Paragraph 3 of Article 68 of the Law on Education does not provide for such a possibility explicitly. According to the representatives of the party concerned, namely the said ministry has the specific competence necessary for elaborating and particularising the provisions of the impugned government resolution concerning the work pay of educators of state and municipal schools.

III

In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations concerning the regulation of the conditions for the work pay of the educators of state and municipal schools were received from Audronė Pitrėnienė, the then Chair of the Committee on Education, Science, and Culture of the Seimas of the Republic of Lithuania, and Kristina Miškinienė, the Chair of the Committee on Social Affairs and Labour of the Seimas of the Republic of Lithuania.

IV

At the hearing of the Constitutional Court, A. Rynkevič, R. Juršaitė, and J. Šerpetauskienė, the representatives of the Government, the party concerned, virtually reiterated the arguments set out in their written explanations and answered the questions of the justices of the Constitutional Court.

The Constitutional Court

holds that:

I

1. The petitioner requests to investigate whether Item 3 (wording of 11 July 2012) of government resolution No. 511 of 8 July 1993, insofar as the Ministry of Education and Science is commissioned to establish the schemes of service remuneration (in coefficients) differentiated according to the nature and size of establishments and organisations and according to the length of service of employees, their education and qualifications, while not exceeding the service remuneration (in coefficients) established in the said resolution, as well as it is commissioned to establish other conditions for work pay, as provided for in the said resolution, that are applied in establishing the work pay of a state school (with the exception of higher education schools) and municipal school heads, deputy head for education, head of unit responsible for the organisation of education, teachers, specialists providing assistance to pupils and other employees participating in the process of education, is in conflict with Items 2 and 7 of Article 94 of the Constitution, the constitutional principle of a state under the rule of law, and Paragraph 3 of Article 68 of the Law on Education.

2. Government resolution No. 511 of 8 July 1993 was adopted in implementing Article 4 of the Republic of Lithuania’s Law on Work Pay (wording of 9 January 1991 with subsequent amendments and supplements), under which the conditions of the work pay to the employees other than the state servants (the conditions of the work pay to them had to be established in laws) of institutions financed from the budget had to be established by the Government. It should be noted that the Law on Work Pay became no longer valid on 1 January 2003, upon coming into force of the Labour Code of the Republic of Lithuania (Item 2 of Article 6 of the Republic of Lithuania’s Law on Approving, Entry into Force, and Implementing the Labour Code).

3. Government resolution No. 511 of 8 July 1993 (with subsequent amendments and supplements) regulates the relations of the work pay of employees of budgetary establishments and organisations, including educators. The first paragraph of Item 3 (wording of 11 July 2012) of this resolution prescribes:

Ministries, departments, and other state services and municipalities, i.e. the institution implementing the rights and duties of the owner of the budgetary establishments and organisations, have to establish the schemes of service remuneration (in coefficients) differentiated according to the nature and size of establishments and organisations and according to the length of service of employees, their education and qualifications, while not exceeding the service remuneration (in coefficients) established in the said resolution, as well as they have to establish other conditions for work pay, as provided for in this resolution.”

4. In the constitutional justice case at issue, also some other effective provisions of government resolution No. 511 of 8 July 1993 (with subsequent amendments and supplements) are relevant.

4.1. Item 1 (wording of 11 July 2012) of this government resolution prescribes that the work of the employees of budgetary establishments and organisations is remunerated by applying coefficients based on a basic monthly salary (basic hourly pay) as approved by the Government, with the exception of the minimum monthly salary and minimum hourly pay.

4.2. By Item 2 of the impugned resolution, the Government approved the service remuneration and tariff-based salaries (in coefficients) of the employees of budgetary establishments and organisations under annexes 1–4.

4.3. The second paragraph (wording of 23 December 2014) of Item 3 of this resolution, inter alia, prescribes that the Ministry of Education and Science had to coordinate the prepared schemes of service remuneration (in coefficients) and other conditions for work pay with the Ministry of Social Security and Labour and the Ministry of Finance; these coordinated conditions for work pay are also applicable for establishing work remuneration for educators (with the exceptions of schools of higher education) working in other budgetary establishments and organisations which are subordinate to municipalities.

4.4. Under Item 4 (wording of 11 December 2013) of the discussed government resolution, concrete service remuneration (in coefficients) and other conditions for the work pay of the employees of an establishment or organisation must be established by the head, without exceeding the funds allocated for the work remuneration. This item also establishes that the service remuneration (in coefficients), additional pay to service remuneration, and the conditions for motivating the heads of establishments and organisations must be established by the institution implementing the rights and conditions of the owner; the size of the additional pay, which is established by specifying a concrete period of time that is not longer than until the end of the calendar year, must not exceed the size of service remuneration; the additional pay is established while taking account of the performance indicators of the previous year (the attainment of the objectives of the budgetary establishment or organisation under the assessment criteria and/or other indicators prescribed in the strategic plan or annual action plan of the corresponding year); the concrete performance measurement indicators are established by the institution implementing the rights and duties of the owner of budgetary establishments and organisations.

4.5. Item 5 (wording of 11 December 2013) of government resolution No. 511 of 8 July 1993 grants the heads of the budgetary establishments and organisations with the right, without exceeding the funds allocated for the work remuneration:

to establish additional pay of up to one service remuneration for high qualification and completion of urgent, important or difficult work (tasks) to deputy heads, heads of structural subdivisions and their deputies, by specifying a concrete period of time that is not longer than until the end of the calendar year; the additional pay is reduced or annulled if the performance of these persons becomes worse (sub-item 5.1);

to establish additional pay to other employees for high qualification and for the completion of urgent, important or difficult work (tasks), and extra pay for the implementation of additional functions (duties) arising due to temporary absence of other employees or pursuant to the written consent of the employee by specifying a concrete period of time that is not longer than until the end of the calendar year; the total amount of the additional pay and extra pay must not exceed the size of the service remuneration established for the employee; the additional pay (extra pay) is reduced or annulled if the performance of these persons become worse or they do not carry out the said work (sub-item 5.2);

to pay one-off payments in order to motivate the employees in the following cases: for a very good performance of an employee during a calendar year; after an employee implements one-off tasks of particular importance; on the occasions established by means of a law; on the occasions of personal and work anniversaries of employees; on retirement of employees (sub-item 5.4).

Additionally, it is established that in every case specified in this item, a one-off payment may be granted not more often than once a year and it may not exceed 100 percent of the established service remuneration; the one-off payment is not granted to the employee on whom a disciplinary penalty was imposed during the last 12 months.

4.6. Under Item 51 (wording of 11 July 2012) of the impugned government resolution, the coefficients of service remuneration which would be up to 65 percent larger than the specified in annexes 1–4 may be established for the heads of national establishments for culture and art, deputy heads, heads of structural subdivisions, their deputies and other employees thereof; meanwhile, the coefficients of service remuneration which would be up to 45 percent larger than specified in annexes 1–4 may be established for the employees of other budgetary establishments and organisations, with the exception of employees specified in notes Nos. 5, 7, and 9 of Annex 1.

4.7. The first and second paragraphs of Item 6 (wording of 11 July 2012) of government resolution No. 511 of 8 July 1993 prescribe:

In the collective agreements concluded under laws, in budgetary establishments and organisations, in view of the conditions established by the institution implementing the rights and duties of the owner, the procedure for granting a one-off payment for motivating an employee and its size, as well as other conditions of the work pay and work organisation, must be particularised.

To recommend providing for, in collective agreements, the criteria for work pay and the labour standards on the grounds of which to establish and pay (without exceeding the work remuneration fund) the work remuneration according to the volume and quality of work. The established work remuneration may not be lower than the minimum service remuneration (remuneration) for the special position as confirmed by the institution implementing the rights and duties of the owner.”

4.8. Annex 1 (wording of 26 June 2015) of government resolution No. 511 of 8 July 1993 establishes the list of the service remuneration of employees of budgetary establishments and organisations:

Table  

4.9. Certain notes specified under this table also make a constituent part of Annex 1. In the context of the constitutional justice case at issue, it should be mentioned that, under Note 2, service remuneration for the deputy heads of divisions are to be established by 10–15 percent lower than for the heads of divisions and other subdivisions, whereas, under Note 4, in addition to other things, the Ministry of Education and Science establishes and, having coordinated with the Ministry of Finance and Ministry of Social Security and Labour, approves the list of posts, on the grounds of which, in all budgetary establishments and organisations, these employees are classified as educators.

It should also be noted that, under certain other notes, a possibility is provided for to establish higher service remuneration than it is established in Annex 1 to the employees of certain budgetary establishments and organisations.

5. To sum up the legal regulation established in government resolution No. 511 of 8 July 1993 (with subsequent amendments and supplements), it should be noted that:

the legal regulation on the pay for work of employees of budgetary establishments and organisations should be applied not only for educators working in these establishments and organisations, but also for other employees thereof, including healthcare specialists, employees of social services, and employees in arts and culture;

the work of employees of budgetary establishments and organisations is remunerated by applying coefficients based on a basic monthly salary (basic hourly pay), as approved by the Government, with the exception of the minimum monthly salary and minimum hourly pay;

the minimum and maximum sizes of the possible service remuneration are established, which are defined by the intervals of coefficients (with certain exceptions) and differentiated under the posts (in addition, heads of establishments and organisation, their deputies, heads of divisions and other subdivisions, and specialists (divided into categories of those who acquired university education, non-university education (graduates of colleges) and college-level education or special secondary education completed before 1995) and spheres of positions (in addition, educators and other employees of the establishments of education and science); a possibility is also provided for establishing higher coefficients of service remuneration than those established by the Government;

the specified institutions are commissioned to establish the schemes of service remuneration differentiated according to the specified criteria – the nature and size of establishments and organisations and the length of service of employees, their education and qualifications, as well as they are commissioned to establish other conditions for work pay;

concrete service remuneration (in coefficients) and other conditions for work pay must be established by the head of the institution, without exceeding the funds allocated for the work remuneration, whereas, the service remuneration (in coefficients), additional pay to service remuneration, and the conditions for motivating the heads must be established by the institution implementing the rights and duties of the owner;

the legal regulation established the conditions for granting additional pay and extra pay supplementing service remuneration and for granting a one-off payment for motivating employees, the possible maximum sizes thereof, the duration of payment of additional pay and extra pay, the conditions for the reduction and annulment of such payment, as well as other conditions.

Thus, government resolution No. 511 of 8 July 1993 (with subsequent amendments and supplements) prescribed the essential conditions for the work pay of employees of budgetary establishments and organisations: it determined the possible sizes of service remuneration expressed in coefficients based on a basic monthly salary as approved by the Government; a possibility is also provided for to establish higher service remuneration than it is established under the maximum coefficients determined by the Government; other conditions for work pay, such as the sizes of the additional pay and extra pay supplementing service remuneration and for granting a one-off payment for motivating employees, the cases when they are granted, and the terms of payment; ministries and other institutions implementing the rights and duties of the owner of budgetary establishments and organisations are commissioned to establish, under the specified criteria, differentiated schemes of service remuneration, as well as other conditions for work pay.

6. As mentioned before, the petitioner requests an investigation into the compliance of the impugned legal regulation inter alia with Paragraph 3 of Article 68 of the Law on Education.

Article 68 “Remuneration of school heads, deputy heads responsible for education, heads of teaching organising divisions, teachers, and specialists providing assistance to pupils”, inter alia, prescribes:

1. The work remuneration of a state school (with the exception of higher education schools) and municipal school heads, deputy heads responsible for education, and heads of teaching organising divisions shall depend on the individual’s attained education level, length of service, management qualification category and complexity of activity.

2. The work remuneration of a teacher of a state school (with the exception of higher education schools) and a municipal school and specialist providing assistance to pupils shall depend upon the individual’s attained education level, length of educational service, qualification category, and complexity of activity.

3. The Government shall lay down the procedure for the work pay of a state school (with the exception of higher education schools) and municipal school heads, deputy heads responsible for education, heads of teaching organising divisions, teachers, specialists providing assistance to pupils and other employees participating in the process of education.

[...]

To sum up these provisions of Article 68 of the Law on Education, it should be held that they regulate the relations of the work pay of educators of state and municipal schools. The criteria established in Paragraphs 1 and 2 of this article, on which the work remuneration of educators in management positions and teachers, as well as specialists providing assistance to pupils of state and municipal schools must depend; when the work remuneration for all the specified educators is established, the criteria of education, the length of educational service, and the complexity of the activity are to be applied; and one criterion to be applied differs partially – the work remuneration of an educator in management position depends, inter alia, on the management qualification category, whereas the work remuneration of a teacher and specialist providing assistance to pupils – on the qualification category. Other conditions for the work pay of educators of state and municipal schools are not established either in this article or in other articles of this law; however, in Paragraph 3 of this article, the Government is commissioned to establish the procedure for the work pay of educators of state and municipal schools.

It should be noted that the conditions for the work pay of educators of state and municipal schools are not regulated in other laws too, except for the general conditions for work pay (such as minimum work remuneration, payment for overtime, work during days off and national holidays, etc.) that are established in the Labour Code.

It should also be noted that laws do not regulate the conditions for the work pay of not only educators of state and municipal schools, but also of other employees of budgetary establishments and organisations (with the exception of the said conditions established in the Labour Code).

7. Even though government resolution No. 511 of 8 July 1993 (with subsequent amendments and supplements) does not specify the law on the grounds of which it was adopted, it is obvious from its content that, insofar as this resolution, inter alia, Item 3 (wording of 11 July 2012) thereof, regulates the relations of the work pay of educators of state and municipal schools, this government resolution implements the provision of Paragraph 3 of Article 68 of the Law on Education.

8. The comparison of the criteria (education, length of educational service, complexity of the activity, management qualification category, or qualification category) established in Paragraphs 1 and 2 of Article 68 of the Law on Education, on which the work remuneration of educators of state and municipal schools must depend, with the criteria (the nature and size of establishments and organisations, the length of service of employees, their education and qualifications) established in Item 3 (wording of 11 July 2012) of government resolution No. 511 of 8 July 1993 makes it clear that, in addition to the fact that the criteria established in the law are applicable to the educators of state and municipal schools and those established in the impugned government resolution are applicable to all the employees of budgetary establishments and organisations, there are also other differences between them; for example, the criterion established by the Government (the nature and size of establishments and organisations) is not identical with the criterion established by the legislature (complexity of the activity of educators of state and municipal schools).

9. It should be noted that, under the legal regulation laid down in government resolution No. 511 of 8 July 1993 (with subsequent amendments and supplements), it is not clear whether, while establishing the work remuneration of educators of state and municipal schools, the criteria specified in Paragraphs 1 and 2 of Article 68 of the Law on Education (except for the criterion of education), on which this remuneration must depend, were followed. The minimum and maximum sizes (intervals) of the service remuneration of employees of budgetary establishments and organisations, including educators and other employees of educational institutions, which are established in Annex 1 of the impugned government resolution, are differentiated by means of coefficients, under the criteria of education for one category of employees, namely the specialists (with regard to the fact whether they have completed a university education, or higher non-university or college-level education or special secondary education completed before 1995). The influence of other criteria (length of educational service, management qualification category, qualification category, or complexity of the activity) that, under the law, must determine the work remuneration of educators of state and municipal schools is not defined for the work remuneration of these educators.

10. It should also be noted that, as mentioned before, in Item 3 (wording of 11 July 2012) of government resolution No. 511 of 8 July 1993, the specified institutions are commissioned to establish the schemes of service remuneration differentiated according to the specified criteria – the nature and size of establishments and organisations and the length of service of employees, their education and qualifications, as well as they are commissioned to establish other conditions for work pay. Therefore, the Government, among other things, commissioned the Ministry of Education and Science to establish and elaborate, by means of substatutory legal acts which are of lower-ranking than a resolution of the Government itself, the conditions of the work pay of educators working in budgetary establishments, inter alia, the influence of the criteria specified by the Government for the work remuneration of these educators.

11. To summarise the legal regulation established in government resolution No. 511 of 8 July 1993 (with subsequent amendments and supplements), the following should be held:

in Paragraphs 1 and 2 of Article 68 of the Law on Education, the legislature specified the criteria on which the work remuneration of educators of state and municipal schools had to depend; however, neither in this article, nor in other articles of this law or other laws, the legislature defined the influence of these criteria for the work remuneration of the said educators; moreover, other essential conditions of their work pay were not established too (for example, the legislature did not consolidate the system of work pay, did not establish any constituent parts of the work remuneration, and did not define their sizes, etc.); having failed to establish the essential conditions for the work pay of the educators of state and municipal schools, in Paragraph 3 of Article 68 of the Law on Education, the legislature commissioned the Government to establish the procedure for the work pay of educators of state and municipal schools;

in regulating, in the impugned resolution, the relations of the work pay of employees of budgetary establishments and organisations, including educators of state and municipal schools, the Government established the possible sizes of their service remuneration and other essential conditions for work pay, as well as commissioned the institution implementing the rights and duties of the owner of budgetary establishments and organisations to establish the schemes of service remuneration differentiated according to the specified criteria and other conditions for work pay.

II

1. In the constitutional justice case at issue, the petitioner impugns the compliance of the provision of the government resolution, regulating the work pay of employees of budgetary establishments and organisations, including educators of state and municipal schools, with, inter alia, Items 2 and 7 of Article 94 of the Constitution and with the constitutional principle of a state under the rule of law. In view of this fact, in this case, it is important to reveal the constitutional requirements for the legal regulation governing the pay for work from the funds of the state and municipal budgets, inter alia, the powers of the Government to regulate the corresponding relations.

2. Under Item 2 of Article 94 of the Constitution, the Government executes laws, the resolutions of the Seimas on the implementation of laws, as well as the decrees of the President of the Republic; under Item 7 of this article, the Government implements other duties prescribed to it by the Constitution and other laws.

While interpreting these constitutional provisions, the Constitutional Court has held on more than one occasion that the legal acts adopted by the Government are substatutory acts; they are the acts of application of law; they elaborate the legal norms and make them more concrete, as well as regulate their implementation; it is important that the Government would adopt substatutory legal acts without exceeding its powers and that these substatutory legal acts would not be in conflict with the Constitution and laws.

The Constitutional Court has noted that under Item 2 of Article 94 of the Constitution, the Government may adopt substatutory acts regardless of whether or not a law instructs it to do so; meanwhile, under Item 7 of this article, it must adopt a substatutory act in order to fulfil the duty assigned to it by the Constitution and laws (the Constitutional Court’s ruling of 15 March 2000). In the acts of the Constitutional Court, it is also emphasised that the legislature may not commission the Government to perform certain actions in such a way which, by its content, would violate the constitutional principle of the supremacy of law (the Constitutional Court’s ruling of 15 March 2000) and that only such Government powers to issue legal acts may be regarded as being in compliance with the Constitution, which stem from the Constitution or laws and resolutions of the Seimas concerning the implementation of laws that are not in conflict with the Constitution, as well as decrees of the President of the Republic that are not in conflict with the Constitution (the Constitutional Court’s ruling of 5 March 2004). Thus, the sole ground that a law instructs the Government to regulate additionally a certain question of the implementation of the law, or that such an instruction is missing, makes it impossible to decide whether an appropriate substatutory act adopted by the Government is in conflict with the Constitution and laws, or whether such a substatutory act is in compliance with them; in every concrete case, an assessment should be made of the relation between the content of the norms of a substatutory act adopted by the Government and that of the norms of the laws for the implementation of which the said substatutory act was adopted (the Constitutional Court’s ruling of 15 March 2000).

3. While interpreting the constitutional principle of a state under the rule of law, the Constitutional Court has held on more than one occasion that this constitutional principle gives rise to the requirement that the legislature and other law-making subjects must observe the hierarchy of legal acts arising from the Constitution, which means, inter alia, that lower-ranking legal acts may not regulate those social relations that are subject to the regulation only by means of higher-ranking legal acts; in addition, substatutory legal acts may not regulate those relations that must only be regulated by means of laws. It has also been held that there is no delegated legislation in Lithuania; therefore, the Seimas – the legislature – cannot commission the Government or other institutions to regulate, by means of substatutory legal acts, the legal relations that should be regulated, as demanded by the Constitution, by means of laws, while the Government may not accept such powers (the Constitutional Court’s rulings of 13 December 2004 and 28 September 2011).

A failure to adhere to the form of a legal act, where the Constitution requires that certain relations should be regulated by law, but they are still regulated by means of a substatutory act (irrespective of the fact whether such relations are in any aspect additionally regulated in a law, the legal regulation established in which is challenged by the legal regulation laid down in a substatutory act, or irrespective of the fact that no law regulates such relations at all), may become sufficient grounds for pronouncing such a substatutory act unconstitutional (the Constitutional Court’s rulings of 13 December 2004 and 28 September 2011).

4. The constitutional principle of a state under the rule of law is related with the constitutional principle of the separation of powers that is consolidated, inter alia, in Paragraph 2 of Article 5 of the Constitution. The said paragraph provides that the scope of power is limited by the Constitution. The Constitutional Court has noted in its acts on more than one occasion that the constitutional principle of the separation of powers is the fundamental principle of the organisation and functioning of a democratic state under the rule of law (inter alia, the Constitutional Court’s rulings of 10 January 1998, 13 May 2004, and 24 September 2009); the constitutional principle of the separation of powers means, among other things, that if the Constitution directly establishes the powers of a concrete institution of state power, such an institution may not waive such powers and may not transfer them to some other institution, while other state institutions may not take over such powers; the said powers may not be changed or limited by law (inter alia, the Constitutional Court’s rulings of 23 August 2005 and 26 February 2010). The Constitutional Court has also emphasised on more than one occasion that the Seimas has no right to commission the Government or any other institution to exercise the constitutional competence of the Seimas (inter alia, the Constitutional Court’s rulings of 14 January 2002, 2 March 2009, and 26 May 2015). The provision “the scope of power shall be limited by the Constitution” of Paragraph 2 of Article 5 of the Constitution is violated if such a legal regulation is established whereby the powers of the state institution specified in Paragraph 1 of Article 5 of the Constitution or those of any other state institution are broadened in a constitutionally unreasonable manner (inter alia, the Constitutional Court’s rulings of 13 December 2004, 2 March 2009, and 26 May 2015).

5. The jurisprudence of the Constitutional Court follows the principled position that the most important social relations must be regulated by means of laws. The Constitutional Court has also noted on more than one occasion that, under the Constitution, the legal regulation related to defining the content of human rights and freedoms or consolidating the guarantees of their implementation may be established only by means of a law (the Constitutional Court’s rulings of 26 October 1995, 19 December 1996, 13 December 2004, 5 May 2007, and 28 September 2011). Under no circumstances is it allowed to establish any conditions for the rise of the right of a person or to limit the scope of his/her right by means of substatutory legal acts (the Constitutional Court’s ruling of 5 May 2007).

6. Paragraph 1 of Article 48 of the Constitution consolidates everyone’s right to receive fair pay for work. This constitutional right is an important precondition for the implementation of a great many other constitutional rights (inter alia, the Constitutional Court’s rulings of 13 December 2004, 11 December 2009, 14 February 2011, and 1 July 2013).

While revealing the content of the constitutional rights of a person to receive a fair pay for work, the Constitutional Court, among other things, has noted that the work remuneration of state servants, which is one of the main preconditions for implementing their other legitimate interests, must be established by law and paid at the time that is established by law (the Constitutional Court’s rulings of 18 December 2001 and 13 December 2004). The Constitutional Court has also held that the provisions of the official constitutional doctrine on the work pay of the state servants are applicable mutatis mutandis to all the persons who receive remuneration from the state (municipal) budget (the Constitutional Court’s ruling of 20 March 2007). In view of this fact, the following doctrinal provisions, relevant in the context of the constitutional justice case at issue, should be noted (formulated, inter alia, in the Constitutional Court’s rulings of 13 December 2004, 20 March 2007, 11 December 2009, and 30 April 2013):

the relations of the state service, to the extent that they are linked to the human rights and freedoms, must be regulated by means of laws, while the procedural relations of state service (as well as those related to it) may be regulated by means of substatutory acts, however, this must be done so that there would be no competition with the legal regulation established by law; clear criteria on the basis of which the size of the pay for work (work remuneration) is established in regard to state servants are an essential element of the right of each citizen to receive fair pay for work, and they must be established by a law;

the legislature enjoys broad discretion in choosing and consolidating in laws a certain system of payment for work of state servants; such a system when a salary of a fixed size is established, or such a system when the minimum or maximum salaries are established for the corresponding position, or such a system when the remuneration for work is regulated while applying the coefficient on the basis of which a certain established value is taken are possible; such remuneration for work may be composed of several constituent parts;

since the professional activity of state servants is remunerated from the state (municipal) budget, this budget must provide for the funds for the work remuneration of state servants.

7. The constitutional requirements to be complied with in regulating the relations of work pay from the funds of the state (municipal) budget also stem from the provisions of the Constitution which consolidate the constitutional powers of the Seimas and the Government in the sphere of public finance.

7.1. Under the Constitution, the Seimas approves the State Budget and supervises its execution (Item 14 of Article 67). As held in the Constitutional Court’s ruling of 15 February 2013, the budgetary function of the Seimas, with regard to the essential influence of the situation of public finances on the implementation of the state functions, is one of the most important functions of the parliament of a democratic state under the rule of law. Under the Constitution, the Government has exceptional powers to prepare a draft State Budget and to execute the State Budget (Item 4 of Article 94 and Article 130).

Paragraph 1 of Article 120 of the Constitution prescribes that the state supports municipalities. The support of the state for municipalities, coordination of the interests of municipalities and those of the state, which are consolidated in the Constitution, imply that funds (municipal revenues and their sources) must be provided for in the state budget, necessary for ensuring the fully-fledged functioning of self-government and for the implementation of functions of municipalities (inter alia, the Constitutional Court’s ruling of 14 January 2002).

7.2. In the Constitutional Court’s ruling of 15 February 2013, it is noted that under the Constitution, while preparing a draft state budget, the Government and, while considering and approving a draft state budget, the Seimas must follow the laws that presuppose a certain amount of estimated state revenue and expenditure, including the laws determining state financial obligations.

In this context, it should be emphasised that, under Paragraph 1 of Article 128 of the Constitution, decisions concerning basic property liabilities of the State are adopted by the Seimas upon the proposal of the Government.

7.3. In the context of the constitutional justice case at issue, it should be noted that, under the Constitution, inter alia, Paragraph 1 of Article 128 thereof, the decisions that have an essential influence on the amount of expenditure of the state provided for in the state budget must be adopted and consolidated in the laws by the Seimas. Otherwise, if decisions affecting a significant part of the expenditure of the state budget were consolidated in acts adopted by other state institutions, preconditions would be created for the emergence of the situations where the Seimas, being incapable of changing such situations, would have to approve the state budget without being able to affect its content to the respective significant extent. This would mean that the possibilities of the Seimas to efficiently fulfil its constitutional budgetary function are restricted, and that its role in forming the state budget is a mere formality and this would not be in line with the purpose and essence of the constitutional powers of the Seimas in the sphere of state finances.

7.4. In view of the fact that the funds of the state (municipal) budget allocated for the pay for work of the employees of establishments, through which various functions of the state are implemented and which are financed from that budget, represent a significant part of the expenditure of the state (municipal) budget, it should be held that the financial liabilities of the state, determining the said expenditure and linked to the work pay of these employees, must be considered basic property liabilities of the state and, under Paragraph 1 of Article 128 of the Constitution, decisions concerning these liabilities must be adopted by the Seimas upon the proposal of the Government. Therefore, the most important elements (which have essential influence on the amount of the expenditure of the state (municipal) budget) of the work pay of the employees of establishments financed from the said funds must be established by means of a law.

8. In the context of the constitutional justice case at issue, it should be noted that from the Constitution, inter alia, the right of a person to receive fair pay for work consolidated in Paragraph 1 of Article 48 thereof, as well as from the provision (interpreted in the context of other constitutional powers of the Seimas and the Government in the sphere of public finance) of Paragraph 1 of Article 128, whereby decisions concerning basic property liabilities of the State must be adopted by the Seimas upon the proposal of the Government, a duty stems for the legislature to establish, by means of a law, the essential conditions for the work pay of persons, who receive remuneration from the funds of the state (municipal) budget, determining their work remuneration (such as the system of payment, the components of work remuneration, the criteria on which work remuneration should depend, and their influence on work remuneration). While regulating the relations of the work pay of these persons by means of its resolution, the Government may only detail and particularise the legal regulation established in the law, as well as establish the procedure for its implementation and regulate the procedural aspects of the work pay.

III

On the compliance of Paragraph 3 of Article 68 of the Law on Education and government resolution No. 511 of 8 July 1993 with the Constitution

1. In the constitutional justice case at issue, the petitioner requests to investigate whether Item 3 (wording of 11 July 2012) of government resolution No. 511 of 8 July 1993, insofar as the Ministry of Education and Science is commissioned to establish the schemes of service remuneration (in coefficients) differentiated according to the nature and size of establishments and organisations and according to the length of service of employees, their education and qualifications, while not exceeding the service remuneration (in coefficients) established in the said resolution, as well as it is commissioned to establish other conditions for work pay, as provided for in the said resolution, that are applied in establishing the work pay of a state school (with the exception of higher education schools) and municipal school heads, deputy head for education, head of unit responsible for the organisation of education, teachers, specialists providing assistance to pupils and other employees participating in the process of education, is in conflict with Items 2 and 7 of Article 94 of the Constitution, the constitutional principle of a state under the rule of law, and Paragraph 3 of Article 68 of the Law on Education.

The doubts of the petitioner are essentially grounded on the fact that, while implementing the commissioning from the legislature, as consolidated in Paragraph 3 of Article 68 of the Law on Education, to establish the procedure for the work pay of educators of state and municipal schools, the Government could not commission it for elaboration to any other institution.

2. As mentioned before, Paragraph 3 of Article 68 of the Law on Education establishes: “the Government lays down the procedure for the work pay of a state school (with the exception of higher education schools) and municipal school heads, deputy heads responsible for education, heads of teaching organising divisions, teachers, specialists providing assistance to pupils and other employees participating in the process of education.”

3. In this Constitutional Court’s ruling, it has been noted that having failed to establish the essential conditions of the work pay of educators of state and municipal schools either in this law or in other laws (without defining the influence of the criteria specified in Paragraphs 1 and 2 of Article 68 of the Law on Education for the work remuneration of the said educators, without consolidating the system of the work pay, and without establishing the constituent parts of the work remuneration, defining their sizes, etc.), in Paragraph 3 of Article 68 of the Law on Education, the legislature has commissioned the Government to establish the procedure for the work pay of educators of state and municipal schools.

4. As mentioned before, from the Constitution, inter alia, the right of a person to receive fair pay for work consolidated in Paragraph 1 of Article 48 thereof, as well as from the provision (interpreted in the context of other constitutional powers of the Seimas and the Government in the sphere of public finance) of Paragraph 1 of Article 128, whereby decisions concerning basic property liabilities of the State must by adopted by the Seimas upon the proposal of the Government, a duty stems for the legislature to establish, by means of a law, the essential conditions for the work pay of persons who receive remuneration from the funds of the state (municipal) budget, determining their work remuneration (additionally, the system of payment, the components of work remuneration, the criteria on which work remuneration should depend, and their influence on work remuneration).

5. It has also been mentioned that a requirement stems from the constitutional principle of a state under the rule of law for the legislature to observe the hierarchy of legal acts arising from the Constitution, therefore, it may commission neither the Government nor any other institution to regulate, by means of substatutory acts, the legal relations which, under the Constitution, may only be regulated by means of laws. Under the constitutional principle of the separation of powers, which is consolidated, inter alia, in Paragraph 2 of Article 5 of the Constitution, an institution of state power may not waive its powers that are established in the Constitution or transfer them to any other institution; such powers cannot be amended or limited by means of a law; the Seimas does not have the right to commission the Government or any other institution to implement its own constitutional competence; the provision “the scope of power shall be limited by the Constitution” of Paragraph 2 of Article 5 of the Constitution is violated by any legal regulation expanding, in a constitutionally unjustified manner, either the powers of the state institution specified in Paragraph 1 of Article 5 of the Constitution or those of any other state institution.

6. It should be held that by the commissioning for the Government, as consolidated in Paragraph 3 of Article 68 of the Law on Education, to establish the procedure for the work pay of educators of state and municipal schools, when the legislature had not established any essential conditions for the payment of their work either in this law or in other laws, the Government was granted the powers to establish these conditions by means of a substatutory legal act. Thus, without having regarded to the fact that, under the Constitution, inter alia, Paragraph 1 of Article 48 thereof, which consolidates the right of a person to receive fair pay for work, and the provision of Paragraph 1 of Article 128 thereof, under which decisions concerning basic property liabilities of the State shall be adopted by the Seimas upon the proposal of the Government, the essential conditions for the work pay of persons who receive the remuneration from the funds of the state (municipal) budget, are to be established by means of a law, the hierarchy of legal acts that stems from the Constitution was violated and the powers of the Government were expanded in a constitutionally unjustified manner.

7. The Constitutional Court has held on more than one occasion that, while administering justice, courts must invoke only those laws and legal acts that are not in conflict with the Constitution; courts may not apply a law that is in conflict with the Constitution (inter alia, the Constitutional Court’s rulings of 13 December 2004, 16 January 2006, 16 December 2013, and 26 May 2015). The implementation of constitutional justice implies that the legal act (part thereof) that conflicts with the Constitution must be removed from the legal system; therefore, after the Constitutional Court establishes that a law whose compliance with the Constitution is not impugned by the petitioner, but on the grounds of which the impugned substatutory legal act is grounded, the Constitutional Court must declare that; such an obligation of the Constitutional Court stems from the Constitution and so the supremacy of the Constitution is ensured (the Constitutional Court’s ruling of 29 November 2001).

8. With regard to the arguments set out, the conclusion should be drawn that Paragraph 3 of Article 68 of the Law on Education, insofar as it commissions the Government to establish the procedure for the work pay of the educators specified in the said paragraph, where the legislature fails to establish the essential conditions for their work pay, is in conflict with Paragraph 2 of Article 5 of the Constitution, the provision “Everyone […] shall have the right […] to receive fair pay for work” of Paragraph 1 of Article 48 thereof, the provision “Decisions concerning […] basic property liabilities of the State shall be adopted by the Seimas upon the proposal of the Government” of Paragraph 1 of Article 128 thereof, and with the constitutional principles of a state under the rule of law and the separation of powers.

9. As mentioned before, the petitioner requests an investigation into whether Item 3 (wording of 11 July 2012) of government resolution No. 511 of 8 July 1993, insofar as the Ministry of Education and Science is commissioned to establish the schemes of service remuneration differentiated according to the specified criteria, as well as with the establishment of other conditions for work pay that are applied in establishing the work remuneration of educators of state and municipal schools, is in conflict with Items 2 and 7 of Article 94 of the Constitution and with the constitutional principle of a state under the rule of law.

10. It has been mentioned that the legal regulation on the pay for work of employees of budgetary establishments and organisations established in government resolution No. 555 of 8 July 1993 (with subsequent amendments and supplements) is to be applied not only for educators working in these establishments and organisations, but also for other employees thereof, including healthcare specialists, employees of social services, and employees in arts and culture.

It has also been mentioned that in regulating, in the impugned resolution, the relations of the work pay of employees of budgetary establishments and organisations, including educators of state and municipal schools, the Government established the essential conditions for their work pay: it determined the possible sizes of service remuneration expressed in coefficients based on a basic monthly salary as approved by the Government; it provided for a possibility to establish higher service remuneration than it is established under the maximum coefficients determined by the Government; it established other conditions of the work pay, such as the sizes of the additional pay and extra pay supplementing service remuneration and for granting a one-off payment for motivating employees, the cases these payments are granted, and the terms of payment; it commissioned ministries and other institutions implementing the rights and duties of the owner of budgetary establishments and organisations to establish, under the specified criteria, differentiated schemes of service remuneration, as well as other conditions for work pay.

It has also been mentioned that laws do not regulate the conditions for the work pay of educators of state and municipal schools and other employees of budgetary establishments and organisations, with the exception of general conditions for work pay established in the Labour Code.

11. As it was noted in the ruling of the Constitutional Court, under the Constitution, inter alia, Paragraph 1 of Article 48 thereof consolidating the right of a person to receive fair pay for work, as well as the provision of Paragraph 1 of Article 128 whereby decisions concerning basic property liabilities of the state must by adopted by the Seimas upon the proposal of the Government, the essential conditions for the work pay of persons, who receive remuneration from the funds of the state (municipal) budget, determining their work remuneration (such as the system of payment, the components of work remuneration, the criteria on which work remuneration should depend and their influence on work remuneration) must be established by means of a law; while regulating the relations of the work pay of these persons by means of its resolution, the Government may only detail and particularise the legal regulation established in the law, as well as establish the procedure of its implementation and regulate the procedural aspects of work pay.

12. It has been mentioned that the constitutional principle of a state under the rule of law gives rise to the requirement that law-making subjects must observe the hierarchy of legal acts arising from the Constitution, which means, inter alia, that substatutory legal acts may not regulate those relations that must be regulated only by means of laws; the legislature may not commission the Government or any other state institutions to regulate, by means of substatutory acts, those legal relations that, under the Constitution, must be regulated by means of laws, and the Government is not allowed to take over these powers; the powers of the Government to pass legal acts may be considered compliant with the Constitution only where these powers stem from the Constitution or laws not in conflict with the Constitution. Under the constitutional principle of separation of powers, which is consolidated, inter alia, in Paragraph 2 of Article 5 of the Constitution, an institution of state power may not take over the powers that are established for other institutions in the Constitution; the provision “the scope of power shall be limited by the Constitution” of Paragraph 2 of Article 5 of the Constitution is violated by any legal regulation expanding in a constitutionally unjustified manner either the powers of the state institution specified in Paragraph 1 of Article 5 of the Constitution or those of any other state institution.

13. It should be held that having established, by means of the impugned government resolution, the possible sizes of service remuneration of employees of budgetary establishments and organisations, including educators of state and municipal schools, and the conditions for work pay, and having commissioned the institutions implementing the rights and duties of the owner of budgetary establishments and organisations to establish, under the specified criteria, differentiated schemes of service remuneration and other conditions for work pay, the fact that under the Constitution, inter alia, Paragraph 1 of Article 48 thereof consolidating the right of a person to fair pay, and the provision of Paragraph 1 of Article 128 thereof whereby decisions concerning basic property liabilities of the state must by adopted by the Seimas upon the proposal of the Government, the essential conditions for the work pay of persons who receive remuneration from the funds of the state (municipal) budget, where such conditions determine their work remuneration, must be established by means of a law, were disregarded; thus, the hierarchy of legal acts that stems from the Constitution were violated and the powers of the Government were expanded in a constitutionally unjustified manner.

14. The Constitutional Court has held that, if it finds that the provisions of a law, whose compliance with the Constitution is not impugned by the petitioner, but which interfere with the relations regulated by the impugned law, are in conflict with the Constitution, it must state that such provisions are unconstitutional (the Constitutional Court’s rulings of 11 July 2014 and 11 June 2015). The implementation of constitutional justice implies that the legal act (part thereof) that conflicts with the Constitution must be removed from the legal system (inter alia, the Constitutional Court’s rulings of 29 November 2001 and 22 September 2015).

15. With regard to the arguments set out, the conclusion should be drawn that government resolution No. 511 of 8 July 1993 (with subsequent amendments and supplements), insofar as it regulates the essential conditions of the work pay of employees of budgetary establishments and organisations, is in conflict with Paragraph 2 of Article 5 of the Constitution, the provision “Everyone […] shall have the right […] to receive fair pay for work” of Paragraph 1 of Article 48 thereof, the provision “Decisions concerning […] basic property liabilities of the State shall be adopted by the Seimas upon the proposal of the Government” of Paragraph 1 of Article 128 thereof, and with the constitutional principles of a state under the rule of law and the separation of powers.

16. It has been mentioned that the petitioner requests an investigation into whether Item 3 (wording of 11 July 2012) of government resolution No. 511 of 8 July 1993 is in conflict with Paragraph 3 of Article 68 of the Law on Education.

17. It has also been mentioned that insofar as government resolution No. 511 of 8 July 1993 (with subsequent amendments and supplements), inter alia, Item 3 (wording of 11 July 2012) thereof, regulates the relations of the work pay of educators of state and municipal schools, this government resolution implements the provision of Paragraph 3 of Article 68 of the Law on Education.

By the Constitutional Court’s ruling at issue, Paragraph 3 of Article 68 of the Law on Education has been declared as being in conflict with the Constitution.

18. The Constitutional Court has held that a virtually wrong presumption would be made that, purportedly, a substatutory legal act must be in line with an unconstitutional law; such a presumption would deny the concept (consolidated in the Constitution) of the hierarchy of legal acts, on the top of which is the Constitution; thus, the very essence of constitutional justice would be distorted (inter alia, the Constitutional Court’s rulings of 16 January 2007, 10 February 2010, 16 December 2013, and 26 May 2015).

19. Thus, in view of the fact that Paragraph 3 of Article 68 of the Law on Education, insofar as it commissions the Government to establish the procedure for the work pay of the educators specified in the said paragraph, where the legislature fails to establish the essential conditions of their work pay, has been declared as in conflict with the Constitution, it should be held that the investigation of the compliance of Item 3 (wording of 11 July 2012) of government resolution No. 511 of 8 July 1993 with Paragraph 3 of Article 68 of the Law on Education, in the aspect impugned by the petitioner, would be meaningless, therefore, in this part of the constitutional justice case at issue, there is no longer any matter for investigation.

20. Paragraph 2 of Article 80 (regulating refusals of the Constitutional Court to consider inquiries) of the Law on the Constitutional Court provides that, if, in the course of the consideration of an inquiry, the matter under consideration ceases to exist, the Constitutional Court shall dismiss the instituted legal proceedings on the grounds thereof. As the Constitutional Court has held on more than one occasion, this provision of the Law on the Constitutional Court is also applicable mutatis mutandis to the consideration of petitions requesting an investigation into the compliance of a legal act with the Constitution (or with another higher-ranking legal act) and to the adoption of corresponding decisions.

Under Paragraph 3 of Article 69 of the Law on the Constitutional Court, if the grounds for the refusal to consider a petition have been established after the commencement of the consideration of the case during the hearing of the Constitutional Court, a decision to dismiss the case shall be adopted.

21. Taking account of the arguments set out, the part of the constitutional justice case at issue concerning the request of the Supreme Administrative Court of Lithuania, the petitioner, to investigate the compliance of Item 3 (wording of 11 July 2012) of government resolution No. 511 of 8 July 1993, insofar as the Ministry of Education and Science is commissioned to establish the schemes of service remuneration (in coefficients) differentiated according to the nature and size of establishments and organisations and according to the length of service of employees, their education and qualifications, while not exceeding the service remuneration (in coefficients) established in the said resolution, as well as it is commissioned to establish other conditions for work pay, as provided for in the said resolution that are applied in establishing the work pay of a state school (with the exception of higher education schools) and municipal school heads, deputy head for education, head of unit responsible for the organisation of education, teachers, specialists providing assistance to pupils and other employees participating in the process of education, with Paragraph 3 of Article 68 of the Law on Education is to be dismissed.

IV

1. By means of this ruling of the Constitutional Court, certain provisions of the Law on Education and government resolution No. 511 of 8 July 1993 (with subsequent amendments and supplements) linked with the work pay of employees of budgetary establishments and organisations, including educators of state and municipal schools, were declared unconstitutional.

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 act in question (or part thereof) is in conflict with the Constitution.

2. It has been held in the jurisprudence of the Constitutional Court that, under the Constitution, the Constitutional Court, having assessed, inter alia, what legal situation might arise after a ruling of the Constitutional Court becomes effective, may establish a date of the official publication of that ruling; the Constitutional Court may postpone the official publication of its ruling if it is necessary to give the legislature time to remove the lacunae legis which would occur if the relevant ruling of the Constitutional Court were officially published immediately after it is pronounced publicly in the hearing of the Constitutional Court and if such lacunae legis constituted preconditions for basically denying certain values defended and protected by the Constitution. The said postponement of the official publication of the Constitutional Court’s ruling (inter alia, a ruling by which a certain law (or part thereof), an act (part thereof) of the Government is ruled to be in conflict with the Constitution) is a precondition stemming from the Constitution in order to avoid certain effects, unfavourable to the society and the state as well as the human rights and freedoms, which might appear if the relevant ruling of the Constitutional Court were officially published immediately after it is pronounced publicly in the hearing of the Constitutional Court and if it became effective on the same day of its official publication (inter alia, the Constitutional Court’s rulings of 19 January 2012, 6 February 2012, and 11 June 2015).

3. Under the Constitution and the Law on the Constitutional Court, after this ruling of the Constitutional Court is officially published, from the day of its official publication, the provisions of the Law on Education and government resolution No. 511 of 8 July 1993 (with subsequent amendments and supplements) which have been ruled to be in conflict with the Constitution by this ruling of the Constitutional Court may not be applied.

Therefore, if the ruling of the Constitutional Court, in this case, were officially published right after its public pronouncement at the Constitutional Court’s hearing, there would occur uncertainty of the legal regulation on the pay for work of employees of budgetary establishments and organisations, including educators in state and municipal schools, due to which the work pay of these employees could be disturbed in essence.

In view of the fact that the adoption of the necessary legislative decisions will be connected with the budgetary planning of the state, also of the fact that, under the Constitution, in certain cases, the legislature must provide for a sufficient vacatio legis, i.e. a time period from the official publishing of a law until its entry into force (the beginning of its application), within which the persons concerned might be able to prepare themselves for the future changes, this ruling of the Constitutional Court must be published officially in the Register of Legal Acts on 2 January 2017.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 54, 55, 56, and 69 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Paragraph 3 of Article 68 of the Republic of Lithuania’s Law on Education (wording of 17 March 2011, Official Gazette Valstybės žinios, 2011, No. 38-1804), insofar as it commissions the Government to establish the procedure for the work pay of the educators specified in this paragraph, where the legislature fails to establish the essential conditions for their work pay, is in conflict with Paragraph 2 of Article 5 of the Constitution of the Republic of Lithuania, the provision “Everyone […] shall have the right […] to receive fair pay for work” of Paragraph 1 of Article 48 thereof, the provision “Decisions concerning […] basic property liabilities of the State shall be adopted by the Seimas upon the proposal of the Government” of Paragraph 1 of Article 128 thereof, and with the constitutional principles of a state under the rule of law and the separation of powers.

2. To recognise that the Resolution of the Government of the Republic of Lithuania (No. 511) “On Improvements in the Procedure for the Work Pay of Employees of Budgetary Establishments and Organisations” of 8 July 1993 (Official Gazette Valstybės žinios, 1993, No. 28-655; with subsequent amendments and supplements), insofar as it regulates the essential conditions for the work pay of employees of budgetary establishments and organisations, is in conflict with Paragraph 2 of Article 5 of the Constitution of the Republic of Lithuania, the provision “Everyone […] shall have the right […] to receive fair pay for work” of Paragraph 1 of Article 48 thereof, the provision “Decisions concerning […] basic property liabilities of the State shall be adopted by the Seimas upon the proposal of the Government” of Paragraph 1 of Article 128 thereof, and with the constitutional principles of a state under the rule of law and the separation of powers.

3. To dismiss the part of the case concerning the compliance of Item 3 (wording of 11 July 2012, Official Gazette Valstybės žinios, 2012, No. 86-4504) of the Resolution of the Government of the Republic of Lithuania (No. 511) “On Improvements in the Procedure for the Work Pay of Employees of Budgetary Establishments and Organisations” of 8 July, insofar as the Ministry of Education and Science is commissioned to establish the schemes of service remuneration (in coefficients) differentiated according to the nature and size of establishments and organisations and according to the length of service of employees, their education and qualifications, while not exceeding the service remuneration (in coefficients) established in the said resolution, as well as it is commissioned to establish other conditions for work pay, as provided for in the said resolution, that are applied in establishing the work pay of a state school (with the exception of higher education schools) and municipal school heads, deputy head for education, head of unit responsible for the organisation of education, teachers, specialists providing assistance to pupils and other employees participating in the process of education, with Paragraph 3 of Article 68 of the Republic of Lithuania’s Law on Education (wording of 17 March 2011).

4. This ruling of the Constitutional Court must be published officially in the Register of Legal Acts on 2 January 2017.

This ruling 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

                                                             Algirdas Taminskas

                                                             Dainius Žalimas