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On the remuneration and leave of a mayor and deputy mayor

Case No. 50/2010

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 RULING

ON THE COMPLIANCE OF PARAGRAPH 1 (WORDING OF 6 NOVEMBER 2008) OF ARTICLE 3 OF THE REPUBLIC OF LITHUANIA’S LAW ON THE PAY FOR WORK OF STATE POLITICIANS AND STATE OFFICIALS AND PARAGRAPH 12 OF ARTICLE 19 OF THE REPUBLIC OF LITHUANIA’S LAW ON LOCAL SELF-GOVERNMENT (WORDING OF 15 SEPTEMBER 2008) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 30 April 2013

Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court Egidijus Bieliūnas, Toma Birmontienė, Pranas Kuconis, Gediminas Mesonis, Ramutė Ruškytė, Egidijus Šileikis, Algirdas Taminskas, Romualdas Kęstutis Urbaitis, and Dainius Žalimas,

with the secretary—Daiva Pitrėnaitė,

in the presence of the representative of the Seimas of the Republic of Lithuania, the party concerned, who was Vytautas Kurpuvesas, an adviser to the Seimas Committee on State Administration and Local Authorities,

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 3 April 2013, in its public hearing heard constitutional justice case No. 50/2010 subsequent to the petition (No. 1B-56/2010) of the Vilnius Regional Administrative Court, the petitioner, requesting investigation into whether:

– Paragraph 1 (wording of 6 November 2008) of Article 3 of the Republic of Lithuania’s Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish any pay of the mayor and deputy mayors for overtime work, work on holidays and during days off, is not in conflict with Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania and the constitutional principles of the equality of rights, justice and a state under the rule of law;

– the provision of Paragraph 12 of Article 19 of the Republic of Lithuania’s Law on Local Self-Government (wording of 15 September 2008) that leave shall be granted to the mayor and deputy mayor at a decision of the municipal council, insofar as it does not establish any reservations regarding the situations when no sitting of the municipal council is called from the day of submission of a request to grant leave until the start of the leave specified in the request, is not in conflict with Paragraph 1 of Article 49 of the Constitution of the Republic of Lithuania and the constitutional principles of the equality of rights, justice and a state under the rule of law.

The Constitutional Court

has established:

I

The petition of the Vilnius Regional Administrative Court, the petitioner, is substantiated by the following arguments.

  1. Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials does not establish that the mayor and deputy mayors are paid for overtime work, work during days off, and work on holidays, even though, according to Paragraph 11 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008), the provisions of the Labour Code of the Republic of Lithuania (hereinafter referred to as the LC) regulating the working and rest time apply to those persons. According to the petitioner, under the Constitution, inter alia Paragraph 1 of Article 48 thereof, there can be no such legal situation as the one where the employees (in this case—the mayor and deputy mayor) who worked overtime, or worked during days off, or on holidays, would not be paid for it. The impugned legal regulation also violates the principle of the equality of rights of persons, since, in the absence of the regulation governing the pay for overtime work, work during days off, and work on holidays, the situation of the mayor and deputy mayor becomes non-equivalent in comparison with other working persons. At the same time also the constitutional principle of a state under the rule of law is violated, which, in addition to other requirements, also implies that the human rights and freedoms must be ensured, that all the institutions implementing the state power as well as other state institutions must act by following law and conforming to law, that the Constitution has the supreme legal power and that all the legal acts must be in conformity with the Constitution. Thus, according to the petitioner, the legal regulation consolidated in Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials violates Paragraph 1 of Article 48 of the Constitution and the constitutional principles of the equality of rights, justice and a state under the rule of law.
  2. Under Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008), leave shall be granted to the mayor and deputy mayor at a decision of the municipal council; this provision does not regulate how the mayor and deputy mayor are granted leave when no sitting of the municipal council is called. Thus, it is not clear how the mayor and deputy mayor may enjoy their right to go on leave (in particular, under important circumstances), when no sitting of the municipal council is called from the day of the submission of a request to grant leave until the start of the leave specified in the request. Therefore, the situation of the mayor and deputy mayor becomes non-equivalent in comparison with other working persons, as without calling the sitting of the municipal council they may not implement their right to go on leave. Thus, this legal regulation restricts and violates the right to annual leave which is guaranteed to the mayor and deputy mayor in Paragraph 1 of Article 49 of the Constitution, as well as restricts and violates the constitutional principles of justice, equality of rights and a state under the rule of law.

II

In the course of the preparation of the case for the Constitutional Court hearing written explanations were received from the representative of the Seimas, the party concerned, who was V. Kurpuvesas, Chairman of the Seimas Committee on State Administration and Local Authorities, in which it is stated that the impugned legal regulation is not in conflict with the Constitution. The position of the representative of the party concerned is substantiated by the following arguments.1. The mayor and deputy mayor are attributed to state politicians, thus, the Republic of Lithuania’s Law on the State Service is not applied to them, but the provisions of the Law on the Pay for Work of State Politicians and State Officials which establish a finite list of the elements of the remuneration—the positional salary and the additional pay for the years served for the State of Lithuania, are applied to them. The mayor and deputy mayor are reasonably applied the system of the pay for work (work remuneration) for implementation of their duties, under which the amount of the positional salary of a person is established upon the evaluation of the specificity of his work (difficulty, degree of  responsibility and other matters, including the work (execution of one’s duties) during days off and on holidays). The provisions of Paragraph 11 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) oblige the mayor and deputy mayor to organise their work so that the provisions of the LC regulating the working and rest time would not be violated, however, they do not create any preconditions for the application of the provisions of the LC regulating the pay for overtime work, work during days off, and work on holidays. Thus, in the opinion of the party concerned, the provisions of Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, insofar as it is specified by the petitioner, are not in conflict with the Constitution.2. Granting leave to the mayor and deputy mayor is not attributed to the exceptional competence of the municipal council, therefore, one is not prohibited from transferring this competence to other municipal institutions, i.e. the municipal executive institution. According to the party concerned, the provision “[l]eave shall be granted to the mayor and deputy mayor at a decision of the municipal council under the procedure established by the regulation of activity” of Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008), may be implemented in various ways: by a decision the municipal council may approve the schedule of the annual leave of the mayor and deputy mayor, by a decision it may grant targeted leave to the mayor and deputy mayor, it may establish exceptional cases in the regulation of activity of the municipal council which is approved at its decision, it may regulate a concrete procedure and authorise a subject that grants leave to the mayor and deputy mayor in the period between the sittings of the municipal council, and it may adopt other decisions regarding the leave of the mayor and deputy mayor which are co-ordinated with the effective legal acts. Thus, the municipal council has the right to adopt a decision, under what procedure in the exceptional cases the decisions regarding granting leave to the mayor and deputy mayor in the period between the sittings of the municipal council could be adopted, and thus the implementation of the right of the mayor and deputy mayor to go on leave is ensured. On 30 June 2010, the Seimas adopted the Republic of Lithuania’s Law Amending Articles 6, 7, 13, 16, 19, 20, 26, 30, 31, 32, 34 and 56 of the Law on Local Self-Government, whose Article 5 amended the provisions of Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008). According to the amended legal regulation, leave is granted to the mayor and deputy mayor at a decision of the municipal council or its authorised person, under the procedure established by the regulation of activity.

III

At the Constitutional Court hearing, V. Kurpuvesas, Chairman of the Seimas Committee on State Administration and Local Authorities, the representative of the Seimas, the party concerned, virtually reiterated the arguments set forth in his written explanations and answered the questions of the justices of the Constitutional Court.

The Constitutional Court

holds that:

I

  1. The Vilnius Regional Administrative Court, the petitioner, requests to investigate inter alia whether Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish any pay of the mayor and deputy mayors for overtime work, work during days off, and work on holidays, is not in conflict with Paragraph 1 of Article 48 of the Constitution and the constitutional principles of the equality of rights, justice and a state under the rule of law.

1.1. It needs to be noted that, under Item 6 of Paragraph 1 (wording of 3 June 2003) of Article 2 of the Law on the Pay for Work of State Politicians and State Officials, the amounts of work remuneration and conditions of remuneration prescribed by this law are applicable to the state politicians, inter alia mayors and deputy mayors. Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law prescribes that the work remuneration of state politicians is composed of the positional salary and the additional pay for the years served for the State of Lithuania.

Thus, the petition of the petitioner requesting to investigate the compliance of Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish any pay of the mayor and deputy mayors for overtime work, work during days off, and on holidays, with the Constitution is to be considered as a request to investigate the compliance of Paragraph 1 (wording of 6 November 2008) of Article 3 of this Law with the Constitution insofar as this paragraph does not establish that also the pay for overtime work, work during days off, and work on holidays is a constituent part of the work remuneration of the mayor and deputy mayor.

1.2. The Constitutional Court has held on more than one occasion that an inseparable element of the content of the constitutional principle of a state under the rule of law is the constitutional principle of justice, thus, the petition requesting to investigate the compliance of the impugned legal regulation with the constitutional principles of a state under the rule of law and justice is to be treated as a petition requesting to investigate its compliance with the constitutional principle of a state under the rule of law.

1.3. Paragraph 1 of Article 48 of the Constitution prescribes: “Each human being may freely choose a job or business, and shall have the right to have proper, safe and healthy conditions at work, to receive fair pay for work and social security in the event of unemployment.”

Even though the petitioner requests to investigate, to the specified extent, the compliance of Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials with Paragraph 1 of Article 48 of the Constitution, it is obvious from the petition of the petitioner that it doubts regarding the compliance of this legal regulation with not all the specified Paragraph 1, but its provision “[e]ach human being <…> shall have the right <…> to receive fair pay for work <…>”.

1.4. It needs to be noted that even though the petitioner requests to investigate, to the specified extent, the compliance of Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials inter alia with the constitutional principle of the equality of rights, it is obvious from the petition of the petitioner that it doubts regarding the compliance of the impugned legal regulation with the constitutional principle of the equality of all persons before the law which is consolidated in Paragraph 1 of Article 29 of the Constitution.

  1. It has been mentioned that the petitioner also requests to investigate whether the provision of Paragraph 12 of Article 19 of the Law on Local Self-Government that leave shall be granted to the mayor and deputy mayor at a decision of the municipal council, insofar as it does not establish any reservations regarding the situations when no sitting of the municipal council is called from the day of submission of a request to grant leave until the start of the leave specified in the request, is not in conflict with Paragraph 1 of Article 49 of the Constitution and the constitutional principles of the equality of rights, justice and a state under the rule of law.

2.1. Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) inter alia prescribed: “Leave shall be granted to the mayor and deputy mayor at a decision of the municipal council under the procedure established by the regulation of activity.”

Thus, the petition of the petitioner requesting to investigate the compliance of the provision of Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) that leave shall be granted to the mayor and deputy mayor at a decision of the municipal council, insofar as it does not establish any reservations regarding the situations when no sitting of the municipal council is called from the day of submission of a request to grant leave until the start of the leave specified in the request, with the Constitution is to be treated as the petition requesting to investigate the compliance of the provision “[l]eave shall be granted to the mayor and deputy mayor at a decision of the municipal council” of Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) with the Constitution.

2.2. It has been mentioned that the Constitutional Court has held on more than one occasion that an inseparable element of the content of the constitutional principle of a state under the rule of law is the constitutional principle of justice, thus, the petition requesting to investigate the compliance of the impugned legal regulation with the constitutional principles of a state under the rule of law and justice is to be treated as a petition requesting to investigate its compliance with the constitutional principle of a state under the rule of law.

2.3. Paragraph 1 of Article 49 of the Constitution prescribes: “Each working human being shall have the right to rest and leisure as well as to an annual paid leave.”

Even though the petitioner requests to investigate, to the specified extent, the compliance of the provision of Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) with Paragraph 1 of Article 49 of the Constitution, it is obvious from the petition of the petitioner that it doubts regarding the compliance of this legal regulation with not all the specified Paragraph 1, but its provision “[e]ach working human being shall have the right to <…> leisure as well as to an annual paid leave”.

2.4. It needs to be noted that even though the petitioner requests to investigate, to the specified extent, the compliance of the provision of Paragraph 12 of Article 19 of the Law Local Self-Government (wording of 15 September 2008) with inter alia the constitutional principle of the equality of rights, it is obvious from the petition of the petitioner that it doubts regarding the compliance of the impugned legal regulation with the constitutional principle of equality of all persons before the law which is consolidated in Paragraph 1 of Article 29 of the Constitution.

  1. Thus, in the constitutional justice case at issue, subsequent to the petition of the petitioner the Constitutional Court will investigate whether:

– Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish that also the pay for overtime work, work during days off, and work on holidays is a constituent part of the work remuneration of the mayor and deputy mayor, is not in conflict with Paragraph 1 of Article 29 of the Constitution, with the provision “[e]ach human being <…> shall have the right <…> to receive fair pay for work <…>” of Paragraph 1 of Article 48 thereof and with the constitutional principles of a state under the rule of law;

– the provision “[l]eave shall be granted to the mayor and deputy mayor at a decision of the municipal council” of Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) is not in conflict with Paragraph 1 of Article 29 of the Constitution, with the provision “[e]ach working human being shall have the right to <…> leisure as well as to an annual paid leave” of Paragraph 1 of Article 49 thereof and with the constitutional principle of a state under the rule of law.

II

  1. It has been mentioned that in the constitutional justice case at issue the Constitutional Court will inter alia investigate whether the legal regulation consolidated in Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials is not in conflict with the Constitution.

1.1. On 29 August 2000, the Seimas adopted the Republic of Lithuania’s Law on the Pay for Work of State Politicians, Judges and State Officials in which it prescribed inter alia the amounts of work remuneration, and the conditions for the payment thereof, of state politicians and state officials to whom the Law on the State Service is not applied (Article 1). This law consolidates a special legal regulation governing inter alia the amounts of work remuneration of state politicians and the conditions of remuneration.

1.2. The Law on the Pay for Work of State Politicians, Judges and State Officials has been amended and/or supplemented on more than one occasion, inter alia by the Republic of Lithuania’s Law Amending Articles 1, 2, 3, 4, 5 and 7 of the Law on the Pay for Work of State Politicians, Judges and State Officials and the Appendix to this Law adopted by the Seimas on 6 November 2008 which came into force on 15 November 2008 (with a corresponding exception), through which inter alia the title of the Law on the Pay for Work of State Politicians, Judges and State Officials was amended: as from coming into force of this law it was titled as the Republic of Lithuania’s Law on the Pay for Work of State Politicians and State Officials.

Paragraph 1 (wording of 6 November 2008) of Article 3 “Work Remuneration of State Politicians and State Officials” of the Law on the Pay for Work of State Politicians and State Officials, insofar as it is specified in the impugned constitutional justice case at issue, prescribes:

“1. Work remuneration of state politicians shall be composed of:

1) the positional salary;

2) the additional pay for the years served for the State of Lithuania.”

Thus, Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials established the constituent parts of the work remuneration of state politicians: their work remuneration is composed of the positional salary and the additional pay for the years served for the State of Lithuania.

  1. The provisions of Paragraph 1 of Article 3 of the Law on the Pay for Work of State Politicians and State Officials are to be construed in the context of other provisions of this law.

2.1. Paragraph 1 (wording of 3 June 2003) of Article 2 “Application of the Law” of the Law on the Pay for Work of State Politicians and State Officials prescribes:

“1. The amounts of work remuneration and the conditions for the payment thereof established by this Law shall apply to the state politicians:

1) the Speaker of the Seimas;

2) officials of the Seimas;

3) Members of the Seimas;

4) the Prime Minister;

5) ministers;

6) mayors and deputy mayors;

7) members of municipal councils.”

Thus, Paragraph 1 (wording of 3 June 2003) of Article 2 of the Law on the Pay for Work of State Politicians and State Officials specifies which persons, according to this law, are attributed to the state politicians to whom the amounts of work remuneration and the conditions for the payment thereof prescribed by this law are applied. It needs to be noted that from the point of view of the legal regulation of work remuneration, mayors and deputy mayors are attributed to the same category of persons as the Speaker of the Seimas, officials of the Seimas, Members of the Seimas, the Prime Minister, ministers and members of municipal councils.

While construing the provisions of Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials together with the provisions of Item 6 of Paragraph 1 (wording of 3 June 2003) of Article 2 of the Law on the Pay for Work of State Politicians and State Officials, it needs to be noted that this legal regulation establishes inter alia the constituent parts of work remuneration of mayors and deputy mayors who are attributed to the state politicians to whom the amounts of work remuneration and the conditions for the payment thereof established by this law are applied: it is composed of the positional salary and the additional pay for the years served for the State of Lithuania.

2.2. Paragraph 1 (wording of 6 November 2008) of Article 4 “Positional Salaries of State Politicians and State Officials” of the Law on the Pay for Work of State Politicians and State Officials prescribed: “Positional salaries of state politicians and state officials shall be calculated by applying the base amount of a positional salary (hereinafter referred to as “the base amount”) which, on the recommendation of the Government, upon the evaluation of the proposals of the organisations representing state politicians and state officials, the average annual inflation of the preceding year (by calculating the national consumer price index), and the impact of other factors on the amount and change of average work remuneration in the public sector, shall be approved by the Seimas prior to the end of the spring session of the Seimas. <...>”

Paragraph 2 (wording of 19 July 2006) of Article 4 of the Law on the Pay for Work of State Politicians and State Officials prescribes: “The positional salary shall be calculated by multiplying the appropriate positional salary coefficient, set in the Appendix to this Law, by the base amount. The positional salary shall be rounded by following the common rules for rounding numbers so that the last figure would be either 0 or 5.”

Thus, this legal regulation inter alia prescribed the procedure for calculation of the positional salary of state politicians—it is calculated by multiplying the appropriate positional salary coefficient, set in the appendix to the said law, by the base amount of the positional salary approved by the Seimas.

2.3. Paragraphs 1 and 3 (wording of 6 November 2008) of Article 5 “Additional Pay for the Years Served for the State of Lithuania” (wording of 3 July 2007) of the Law on the Remuneration of State Politicians and State Officials prescribe:

“1. State politicians and state officials shall be paid the additional pay for the years served for the State of Lithuania from 11 March 1990 in the positions specified in Paragraphs 1–4 and Items 1–4 of Paragraph 5 of Article 4 of the Law on the State Service (with the exception of the members of municipal council who have not served as mayors and deputy mayors). The time served shall include the periods specified in Paragraph 1 of Article 42 of the aforesaid law. <...>

  1. The additional pay for the years served for the state shall comprise 3 percent of the positional salary of the state politician or state official for every three years; however, the amount of the additional pay may not exceed 30 percent of the positional salary.”

Thus, this legal regulation inter alia prescribed which state politicians are paid the additional pay for the years served for the State of Lithuania, the procedure for calculation of this additional pay and the possible maximum amount thereof.

2.4. While construing the legal regulation consolidated in Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials together with the legal regulation consolidated in Item 6 of Paragraph 1 (wording of 3 June 2003) of Article 2 of this law, as well as with Paragraph 1 (wording of 6 November 2008) of Article 4, Paragraph 2 (wording of 19 July 2006) of Article 4 and Paragraphs 1 and 3 (wording of 6 November 2008) of Article 5 (wording of 3 July 2007) thereof, it needs to be noted that Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials establishes the constituent parts of work remuneration of mayors and deputy mayors who are attributed to state politicians: their work remuneration is composed of the positional salary calculated by multiplying the appropriate positional salary coefficient, set in the appendix to this law, by the base amount of the positional salary approved by the Seimas, and of the additional pay for the years served for the State of Lithuania calculated under the established procedure.

Thus, Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, as well as other provisions of this law, does not provide for any pay of the mayor and deputy mayor for overtime work, work during days off, and work on holidays.

  1. The legal regulation consolidated in Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials is to be construed in the context of the provisions of the Law on Local Self-Government (wording of 15 September 2008) which are related with the functions of the mayor and deputy mayor.

3.1. In the context of the constitutional justice case at issue, the following provisions of the Law on Local Self-Government (wording of 15 December 2008) are to be noted:

– for the term of its powers, the municipal council shall elect municipal mayor from among the members of the council, and on the proposal of the mayor, shall appoint one or several deputy mayors; the mayor shall be the head of the municipality; the municipal council may decide that a deputy mayor carries out the duties on a voluntary basis (Paragraph 1 of Article 19);

– the mayor shall plan activities of the municipal council, set and draw up agendas of sittings of the municipal council and present draft decisions of the municipal council, call municipal council sittings and preside over them, co-ordinate activities of municipal council’s committees and commissions, sign municipal council’s decisions and minutes of the sittings over which he has presided; in accordance with the procedure laid down by the regulation of activity, shall himself represent or authorise other persons to represent the municipality in court, in co-operation with other municipalities, state institutions, institutions of foreign states, as well as with other natural and legal persons; shall control and supervise the activities of the heads of municipal institutions, establishments and undertakings of public administration, how they implement laws, decisions of the Government and the municipal council (Items 1, 2 and 11 of Paragraph 2 of Article 20);

– a deputy mayor shall carry out the functions established by the municipal council and instructions of the mayor; in the event the mayor cannot carry out his duties, a deputy mayor shall exercise all duties of the mayor, except for the powers provided for in Items 4–8 of Paragraph 2 of this article (Paragraph 2 of Article 20).

3.2. While summarising the specified provisions of the Law on Local Self-Government (wording of 15 September 2008) linked with the functions and legal status of the mayor and deputy mayor, one should hold that:

– the mayor, being a member of the municipal council, is the head of the municipality; he inter alia plans and organises the activities of the municipality, represents the municipality in the relationships with other subjects, inter alia institutions of foreign countries, and carries out the functions of control and supervision of activity of the subjects that are linked to the municipality;

– the deputy mayor is a member of the municipal council; in the event the mayor cannot carry out his duties, a deputy mayor exercises the duties of the mayor, save the established exceptions, as well as carries out the functions established by the municipal council and the instructions of the mayor.

  1. The impugned legal regulation consolidated in Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials is also to be construed in the context of the provisions of Paragraph 11 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) and the legal regulation consolidated in the LC.

4.1. Paragraph 11 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) prescribes: “The provisions of the Labour Code, with the exception of the provisions regulating the working and rest time, the leave specified in Paragraph 12 of this Article, material liability, health and safety at work, shall not apply to the mayor and deputy mayor.”

Thus, Paragraph 11 of Article 19 (wording of 15 September 2008) of the Law on Local-self Government consolidates a general rule that the provisions of the LC do not apply to the mayor and deputy mayor and the exceptions of this rule that the provisions of the LC regulating inter alia the working and rest time apply to the mayor and deputy mayor.

It needs to be emphasised that the specified provisions of the Law on Local Self-Government (wording of 15 September 2008) must be construed in a systemic manner, where one should take account of the functions and legal status attributed to the mayor and deputy mayor who are municipal politicians.

4.2. In this context it needs to be noted that the legal norms consolidated in Chapter III “Working Time” of the LC inter alia regulate the notion of working time (Article 142), the composition of working time (Article 143), the duration of working time (Article 144), the limitation of overtime work (Article 150), exceptional cases when the employer is permitted to assign overtime work (Article 151) and the duration of overtime work (Article 152), whereas Chapter XIV “The Rest Time” of the LC consolidates the provisions establishing inter alia the categories of the rest time (Article 157), as well as the provisions regarding the uninterrupted weekly rest (Article 161) and the types of leave (Article 164).

It also needs to be noted that Chapters XIII and XIV of the LC, which consolidate the legal norms regulating the working and rest time, do not regulate the pay for overtime work, work during days off, and work on holidays. The provisions regulating the pay for overtime work, work during days off, and work on holidays are consolidated in Chapter XV “Work Remuneration. Guarantees and Compensations” of the LC which, under Paragraph 11 of Article 19 of the Law on Local Self-Government, does not apply to the mayor and deputy mayor.

4.3. While construing the legal regulation consolidated in Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials in the context of the provisions of Paragraph 11 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) and the legal regulation consolidated in Chapters XIII and XIV of the LC, it needs to be noted that the special legal regulation consolidated in Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials is meant to establish the constituent parts of the work remuneration of the mayor and deputy mayor, whereas the provisions of the LC regulating the pay for overtime work, work during days off, and work on holidays do not apply to the mayor and deputy mayor.

  1. While summarising the legal regulation consolidated in the provisions of the Law on the Pay for Work of State Politicians and State Officials and the Law on Local Self-Government (wording of 15 September 2008) in the aspect impugned by the petitioner, one should hold that:

– mayors and deputy mayors, as well as the Speaker of the Seimas, officials of the Seimas, Members of the Seimas, the Prime Minister and ministers, in the context of the Law on the Pay for Work of State Politicians and State Officials, are attributed to the state politicians to whom the amounts of the work remuneration and conditions of remuneration prescribed in this law are applied;

– the special legal regulation consolidated in Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials prescribed inter alia the constituent parts of the work remuneration of the mayor and deputy mayor: their work remuneration is composed of the positional salary calculated by multiplying the appropriate positional salary coefficient, set in the Law on the Pay for Work of State Politicians and State Officials, by the base amount of the positional salary approved by the Seimas, and of the additional pay for the years served for the State of Lithuania calculated under the established procedure; neither Paragraph 1 (wording of 6 November 2008) of Article 3 of the aforementioned law, nor other provisions of this law provide for remuneration for overtime work, work during days off, and work on holidays as a constituent part of the work remuneration of the mayor and deputy mayor;

– according to the prescribed legal regulation, the provisions of the LC regulating inter alia the duration of the working and rest time apply to the mayor and deputy mayor, whereas the provisions regulating remuneration for overtime work, work during days off, and work on holidays do not apply to the mayor and deputy mayor; the provisions of the Law on Local Self-Government (wording of 15 September 2008) which create preconditions to apply the provisions of the LC to the mayor and deputy mayor must be construed in a systemic manner, where one must take account of the functions and legal status attributed to the mayor and deputy mayor who are municipal politicians;

– the mayor is the head of a municipality, he performs inter alia the functions of organisation of the activity of the municipal council, the representation of the municipality and the functions of control and supervision of activity of the subjects that are linked to the municipality; the deputy mayor performs the functions established by the municipal council and carries out the instructions of the mayor, as well as in the event the mayor cannot carry out his duties, exercises the duties of the mayor, save the  exceptions established by the Law on Local Self-Government (wording of 15 September 2008).

  1. In the context of the constitutional justice case at issue, one is to note the legal regulation consolidated in the Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (hereinafter referred to as the Directive).

6.1. Under Article 1 of the said directive, it applies to all sectors of activity, both public and private; the directive does not apply to those spheres the peculiarities whereof, typical of a certain specific activity of the state service, such as armed forces and the police, or a certain specific activity of the civil security sphere, are in conflict with the directive inevitably—in that case the safety and health of employees must be ensured by taking account of the purposes set in this directive as much as possible.

6.2. Chapter 2 of the said directive consolidates inter alia the legal regulation of a minimum daily rest period (Article 3), weekly rest period (Article 5) and maximum weekly working time (Article 6).

6.3. Article 17 of the said directive inter alia prescribes that with due regard for the general principles of the protection of the safety and health of workers, Member States may derogate inter alia from Articles 3 to 6 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of managing executives or other persons with autonomous decision-taking powers (Paragraph 1).

6.4. Thus, the directive which is applied inter alia to the public sector, save the specified exceptions, consolidates the provisions regulating inter alia the minimum daily rest period, weekly rest period and maximum weekly working time. The directive also consolidates the provisions allowing the Member States to derogate from this legal regulation if it is determined by the specific characteristics of the activity concerned—if, in the course of a certain activity, the working time is not measured and/or predetermined or it can be determined by the workers themselves—managing executives or other persons with autonomous decision-taking powers.

Thus, under the legal regulation consolidated in the said directive, on account of the specific characteristics of the activity concerned, upon the decision of a Member State, it may be derogated from the prescribed inter alia the minimum daily rest time, the weekly rest time, and the norms of the maximum rest time, i.e. the Member States may also choose the measures that would not limit the duration of the working time of certain managing executives or other persons with autonomous decision-making powers and would not establish any concrete working time for them.

  1. It has been mentioned that in the constitutional justice case at issue the Constitutional Court inter alia will investigate whether the legal regulation consolidated in Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) is not in conflict with the Constitution.

7.1. On 7 July 1994, the Seimas adopted the Law on Local Self-Government.

7.2. The Law on Local Self-Government has been amended and/or supplemented on more than one occasion, inter alia by the Republic of Lithuania’s Law Amending the Law on Local Self-Government adopted by the Seimas on 15 September 2008, which came into force on 1 October 2008 (with certain exceptions), through which the Law on Local Self-Government was set forth in its new wording.

Paragraph 12 of Article 19 “The Mayor and the Deputy Mayor” of the Law on Local Self-Government (wording of 15 September 2008) which to the specified extent is impugned in the constitutional justice case at issue, inter alia prescribed: “Leave shall be granted to the mayor and deputy mayor at a decision of the municipal council under the procedure established by the regulation of activity.”

Thus, Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) prescribes the procedure for granting leave to the mayor and deputy mayor: leave is granted at a decision of the municipal council. This provision also specifies that the procedure for granting leave to the mayor and deputy mayor is elaborated in the regulation of activity of the municipal council.

  1. In the context of the constitutional justice case at issue one should also mention the provisions of the Law on Local Self-Government (wording of 15 September 2008) related to the procedure for the calling and organising of the sittings of municipal councils.

8.1. Article 13 “Sittings of the Municipal Councils” of the Law on Local Self-Government (wording of 15 September 2008) inter alia prescribes:

– if needed, but at least every 3 months, municipal council sittings shall be called by the mayor and, in case of his absence—the deputy mayor (Paragraph 4);

– only those issues shall be considered at municipal council sittings the draft decisions whereof are submitted in the manner prescribed by the regulation of activity (Paragraph 5);

– the mayor shall draw up an agenda of a sitting of the municipal council; the mayor must include in the agenda of a sitting the issues subject to consideration as well as the registered drafts solutions not later than within four working days before the sitting of the municipal council (Paragraph 6);

– the mayor and, in the event he is absent (in the cases laid down by the regulation of activity), a deputy mayor or a member of the council who has been authorised by the one-third of the members of the council shall, not later than three working days preceding the beginning of a sitting, in accordance with the procedure laid down by the regulation, notify inter alia all members of the council about the time of the sitting of the municipal council, the issues and draft solutions prepared for consideration and registered pursuant to the regulation of activities (Paragraph 8).

8.2. While summarising the legal regulation set forth, one should note that the sittings of the municipal council are called at least every 3 months, as well as they may be called in case of need. The Law on Local Self-Government (wording of 15 September 2008) prescribes the procedure for organisation of the municipal council’s sittings, inter alia the fact that inter alia the members of the municipal council must be notified notify about the time of the sitting of the municipal council not later than three working days preceding the beginning of a sitting.

  1. While summarising the legal regulation set forth in the aspect impugned by the petitioner, it needs to be held that:

– Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) prescribes the procedure for granting leave to the mayor and deputy mayor: leave is granted at a decision of the municipal council; the procedure for granting leave to the mayor and deputy mayor is elaborated in the regulation of activity of the municipal council;

– under the legal regulation, the sittings of the municipal council are called at least every 3 months, as well as they may be called in case of need; the law prescribes the procedure for organisation of the municipal council’s sittings, inter alia the fact that inter alia the members of the municipal council must be notified about the time of a sitting of the municipal council not later than three working days preceding the beginning of the sitting.

  1. In the context of the constitutional justice case at issue it also needs to be noted that, on 30 June 2010, the Seimas adopted the Republic of Lithuania’s Law Amending and Supplementing Articles 6, 7, 13, 16, 19, 20, 26, 30, 31, 32, 34 and 56 of the Law on Local Self-Government which came into force on 20 July 2010 (save certain exceptions).

10.1. After Article 5 of this Law had amended Paragraph 12 of Article 19 of the Law on Local Self-Government, the latter paragraph inter alia prescribed: “Leave shall be granted to the mayor and deputy mayor at a decision of the municipal council or its authorised person under the procedure established by the regulation of activity.”

Thus, under Paragraph 12 (wording of 30 June 2010) of Article 19 of the Law on Local Self-Government (wording of 15 September 2008), leave is granted to the mayor and deputy mayor at a decision of the municipal council or its authorised person and this decision is adopted under the procedure established by the regulation of activity.

10.2. After the comparison of the legal regulation consolidated in Paragraph 12 (wording of 30 June 2010) of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) with the one consolidated in Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008), it becomes clear that the legal regulation has changed in substance: it is specified that the decision regarding the granting of leave to the mayor and deputy mayor may be adopted not only by the municipal council, but also by its authorised person.

III

  1. In the constitutional justice case at issue one impugns, to the specified extent, the compliance of the legal regulation which establishes the pay for work of the mayor and deputy mayor, who are members of the municipal council, and that of the legal regulation which established the procedure for granting leave to them, with the Constitution.
  2. Paragraph 1 of Article 48 of the Constitution prescribes: “Each human being <...> shall have the right <...> to receive fair pay for work <...>.”

The Constitutional Court has held that the right to receive fair pay for work entrenched in Paragraph 1 of Article 48 of the Constitution is inseparable from the constitutional principles of the equality of rights, justice, and a state under the rule of law (the Constitutional Court’s ruling of 11 December 2009). While construing Paragraph 1 of Article 48 of the Constitution, the Constitutional Court has also noted that a right appears in regard to the person who has completed a commissioned task to demand that the whole work remuneration (remuneration) which is due according to the legal acts be paid to him, and that it be paid in due time (the Constitutional Court’s rulings of 13 December 2004, 11 December 2009 and 14 February 2011).

2.1. In the context of the constitutional justice case at issue the provision “[e]ach human being <...> shall have the right <...> to receive fair pay for work <...>” of Paragraph 1 of Article 48 of the Constitution should be construed together with inter alia Paragraph 3 of Article 119 of the Constitution.

Paragraph 3 of Article 119 of the Constitution prescribes: “The procedure for the organisation and activities of self-government institutions shall be established by law.”

It needs to be noted that, under Paragraph 3 of Article 119 of the Constitution, while regulating the procedure for organisation and activity of inter alia municipal councils as political representative local self-government institutions, the legislator has discretion to establish also the legal regulation of organisation of work and the system of the pay for work of members of municipal councils who have been elected by the municipal council inter alia in order to organise the activity of the municipal council and to implement the powers linked thereto, as well as to represent the municipality.

2.2. In this context it needs to be noted that, in its ruling of 20 March 2007, the Constitutional Court inter alia held that:

– the state may choose various systems of remuneration for work; 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 where the remuneration for work is based on a coefficient with a certain established value (such remuneration for work may be composed of several constituent parts), is possible;

– the constitutional requirements for the fair pay for work that are to be applied for these other persons (employees) do not differ essentially from those that are to be applied to the fair pay for work of state servants;

– 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 just pay for work, and they must be established by the law;

– the opportunity to legally regulate the legal relations of payment for work to state servants differently from the legal relations of payment for work of other persons is applicable mutatis mutandis also to the legal regulation of the relations of payment for work of state politicians, judges, state officials, and servicemen.

2.3. The right to receive fair pay for work guaranteed in Paragraph 1 of Article 48 of the Constitution and the right of each working person to rest guaranteed in Paragraph 1 of Article 49 thereof must be ensured inter alia by regulating the activity of state politicians and municipal politicians. Paragraph 2 of Article 49 of the Constitution prescribes that the length of working time shall be established by law. This constitutional provision does not mean that it is required to establish the legal regulation on work organisation that would be the same for the working persons of all categories, inter alia for state servants, state politicians and municipal politicians.

It also needs to be noted that, while establishing the legal regulation governing the activity of state politicians and municipal politicians, one must take account inter alia of the specificity of this activity which is determined by the function of politicians to represent the interests of the Nation, the state or residents of certain municipality which stems from the Constitution (inter alia Articles 4 and 5, Paragraph 1 of Article 55, Articles 77, 97, 98 and 119 thereof) and the powers to decide the questions of the formation and the implementation (and the control thereof) of the policy in the spheres that belong to the competence of the state, the competence of a certain sphere of its administration or the municipal competence, as well as the related requirement for accountability to the public, the publicity requirement, the duties of the representation and other duties. While taking account of this specificity, laws or other legal acts must establish certain requirements for the organisation of activity of state politicians and municipal politicians, leaving other questions of organisation of this activity to decide for the politicians themselves (collegially or personally). The nature of the functions and duties of the state politicians and municipal politicians determine inter alia the fact that it is impossible to record all the time designated for the performing of these functions and duties—the time necessary to perform the functions and duties of politicians may not be identified with the prescribed working time of a certain establishment or a certain category of workers, as well as that it is quite often necessary to perform their functions also on established days off or public holidays.

Thus, from the point of view of work organisation, the activity of state politicians and municipal politicians is specific and the legal regulation governing the said activity cannot be absolutely identical to the general regulation of employment relations, inter alia when the requirements for the structure of the working time and its recording are being established. One must take account of the said specificity of the activity of politicians also while establishing, by law, the amount of their work remuneration and the duration of their rest and paid annual leave.

  1. It has been mentioned that in the constitutional justice case at issue one investigates the compliance of the impugned legal regulation inter alia with Paragraph 1 of Article 29 of the Constitution which consolidates the constitutional principle of equality of all persons before the law.

3.1. The Constitutional Court has held on more than one occasion that the constitutional principle of equality of all persons before the law requires that in law the main rights and duties be established equally to all; the constitutional principle of equality of persons before the law means the innate right of a human being to be treated equally with the others and obliges one to legally assess homogenous facts in the same manner and prohibits from the arbitrary assessment of the facts that are the same in essence in a different manner; the constitutional principle of equality of persons does not deny a possibility to provide, by means of a law, for a different legal regulation in respect to certain categories of persons who are in different situations (inter alia the Constitutional Court’s ruling of 15 February 2013).

3.2. The Constitutional Court has also held that the principle of equality of persons which is consolidated in the Constitution, inter alia Article 29 thereof, is inseparable from the constitutional principle of a state under the rule of law, which is a universal principle upon which the entire Lithuanian legal system and the Constitution itself are based (inter alia the Constitutional Court’s rulings of 28 May 2010 and 15 February 2013). The Constitutional Court has also held that the constitutional principle of a state under the rule of law is a universal principle, upon which the entire legal system of Lithuania and the Constitution itself are based, that the content of the aforesaid constitutional principle reveals itself in various provisions of the Constitution, inter alia Article 29 thereof, in which the principle of the equality of rights of persons is consolidated. The violation of the constitutional principle of the equality of rights of persons is, at the same time, the violation of the constitutional imperatives of justice and harmonious society, thus, it is also the violation of the constitutional principle of a state under the rule of law (inter alia the Constitutional Court’s rulings of 6 February 2012, 14 December 2012 and 22 February 2013).

  1. Paragraph 1 of Article 49 of the Constitution prescribes: “Each working human being shall have the right to rest and leisure as well as to an annual paid leave.”

4.1. Thus, Paragraph 1 of Article 49 of the Constitution consolidates inter alia the constitutional right to leisure guaranteed to each working person.

This constitutional right must be construed as inter alia meaning the right of the working person, in cases and under the procedure established by the legislator, to receive the time free from work when this person, due to the circumstances recognised as important by the legislator, may not perform the functions of his work. The legislator must establish such legal regulation which would ensure the possibility for the working persons to enjoy this right in reality.

4.2. While construing Paragraph 1 of Article 49 of the Constitution, the Constitutional Court has also noted that the right of a working individual to annual paid leave is his constitutional right. Thus, the essential condition of the implementation of this right must be established by law (the Constitutional Court’s ruling of 7 December 2007).

In the context of the constitutional justice case at issue it needs to be noted that, while establishing, by law, the essential conditions of implementation of the constitutional right to the annual paid leave which stems from Paragraph 1 of Article 49 of the Constitution, one must consolidate such legal regulation which would ensure the possibility for the working persons to enjoy their such constitutional right in reality.

IV

On the compliance of Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials with Paragraph 1 of Article 29 of the Constitution, the provision “[e]ach human being <…> shall have the right <…> to receive fair pay for work” of Paragraph 1 of Article 48 thereof and with the constitutional principle of a state under the rule of law.

  1. It has been mentioned that, in the constitutional justice case at issue, subsequent to the petition of the petitioner, one inter alia investigates whether Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish that also the pay for overtime work, work during days off, and work on holidays is a constituent part of the work remuneration of the mayor and deputy mayor, is not in conflict with Paragraph 1 of Article 29 of the Constitution, with the provision “[e]ach human being <…> shall have the right <…> to receive fair pay for work <…>” of Paragraph 1 of Article 48 thereof and with the constitutional principle of a state under the rule of law.
  2. It has been mentioned that Paragraph 1 (wording of 6 November 2008) of Article 3 “Work Remuneration of State Politicians and State Officials” of the Law on the Pay for Work of State Politicians and State Officials prescribes:

“1. Work remuneration of state politicians shall be composed of:

1) the positional salary;

2) the additional pay for the years served for the State of Lithuania.”

  1. The doubts of the petitioner regarding the compliance of the impugned legal regulation with the Constitution are grounded inter alia on the fact that, under the Constitution, inter alia Paragraph 1 of Article 48 thereof, there can be no such legal situation as the one where the employees (in this case—the mayor and deputy mayor), who worked overtime, during days off, or on holidays, would not be paid for it. The impugned legal regulation also violates the principle of the equality of rights, since, in the absence of any regulation of the pay for overtime work, work during days off, and work on holidays, the situation of the mayor and deputy mayor becomes non-equivalent in comparison with other working persons, and, at the same time, the constitutional principle of a state under the rule of law is also violated.
  2. While deciding whether Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish that also the pay for overtime work, work during days off, and work on holidays is a constituent part of the work remuneration of the mayor and deputy mayor, is not in conflict with the provision “[e]ach human being <…> shall have the right <…> to receive fair pay for work <…>” of Paragraph 1 of Article 48 of the Constitution, one should note that, as mentioned before:

– the right to receive fair pay for work is inseparable from the constitutional principles of the equality of rights, justice, and a state under the rule of law;

– the right to receive fair pay for work guaranteed in Paragraph 1 of Article 48 of the Constitution and the right of each working person to rest guaranteed in Paragraph 1 of Article 48 thereof must be ensured inter alia by regulating the activity of state politicians and municipal politicians;

– while establishing the legal regulation of the activity of state politicians and municipal politicians, one must take account inter alia of the specificity of this activity which is determined by the function of politicians to represent the interests of the Nation, the state or residents of certain municipality which stems from the Constitution (inter alia Articles 4 and 5, Paragraph 1 of Article 55, Articles 77, 97, 98 and 119 thereof) and the powers to decide the questions of the formation and the implementation (and the control thereof) of the policy in the spheres that belong to the competence of the state, the competence of a certain sphere of its administration or the municipal competence, as well as the related requirement for accountability to the public, the publicity requirement, the duties of the representation and other duties; while taking account of this specificity, laws or other legal acts must establish certain requirements for the organisation of the activity of state politicians and municipal politicians, leaving other questions of organisation of this activity to decide for the politicians themselves (collegially or personally); the nature of the functions and duties of the state politicians and municipal politicians determine inter alia the fact that it is impossible to record all the time designated for the performing of these functions and duties, the time necessary to perform the functions and duties of politicians may not be identified with the prescribed working time of a certain establishment or a certain category of workers, as well as that it is quite often necessary to perform their functions also on the established days off or public holidays.

4.1. It has been mentioned that, in the context of the Law on the Pay for Work of State Politicians and State Officials, mayors and deputy mayors, as well as the Speaker of the Seimas, officials of the Seimas, Members of the Seimas, the Prime Minister and ministers, are attributed to the state politicians to whom the amounts of the work remuneration and the conditions for the payment thereof prescribed in this law apply.

4.2. It has also been mentioned that the special legal regulation consolidated in Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials prescribed inter alia the constituent parts of the work remuneration of the mayor and deputy mayor: their work remuneration is composed of the positional salary calculated by multiplying the appropriate positional salary coefficient, set in the Law on the Pay for Work of State Politicians and State Officials, by the base amount of the positional salary approved by the Seimas, and of the additional pay for the years served for the State of Lithuania calculated under the established procedure.

4.3. As mentioned before, under the prescribed legal regulation the provisions of the LC regulating inter alia the duration of the working and rest time apply to the mayor and deputy mayor, whereas the provisions regulating the remuneration for overtime work, work during days off, and work on holidays do not apply to the mayor and deputy mayor.

As mentioned before, neither Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, nor other provisions of this law provide for the remuneration for overtime work, work during days off, and work on holidays as a constituent part of the work remuneration of the mayor and deputy mayor.

4.4. It has been mentioned that, under the Constitution, the nature of the functions and duties of the state politicians and municipal politicians determine inter alia the fact that it is impossible to record all the time designated for the performing of these functions and duties, the time necessary to perform the functions and duties of politicians may not be identified with the prescribed working time of a certain establishment or a certain category of workers, as well as that it is quite often necessary to perform their functions also on the established days off or public holidays.

Thus, the legal regulation consolidated in Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, whereby inter alia the structure of the work remuneration of the mayor and deputy mayor is established, the pay for overtime work, work during days off, and work on holidays, when one has in mind the functions attributed to these persons and their legal status, is not provided as a constituent part of the work remuneration.

It needs to be held that the fact that the legislator enjoyed the discretion to establish the legal regulation (in the aspect of the right to establish the constituent parts of the work remuneration) of work remuneration of the mayor and deputy mayor granted to him by establishing the legal regulation that took account of the specificity of these persons’ activity and its organisation may not be assessed as the creation of the preconditions for a violation of the right to receive fair pay for work which is guaranteed in Paragraph 1 of Article 48 of the Constitution.

4.5. While taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish that also the pay for overtime work, work during days off, and work on holidays is a constituent part of the work remuneration of the mayor and deputy mayor, is not in conflict with the provision “[e]ach human being <…> shall have the right <…> to receive fair pay for work <…>” of Paragraph 1 of Article 48 of the Constitution.

  1. It has been mentioned that in the constitutional justice case at issue, subsequent to the petition of the petitioner, one inter alia investigates whether Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish that also the pay for overtime work, work during days off, and work on holidays is a constituent part of the work remuneration of the mayor and deputy mayor, is not in conflict with Paragraph 1 of Article 29 of the Constitution and with the constitutional principles of a state under the rule of law.
  2. It has been mentioned that, according to the petitioner, the impugned legal regulation also violates the principle of the equality of rights of persons, since, in the absence of the regulation of the pay for overtime work, work during days off, and work on holidays, the situation of the mayor and deputy mayor becomes non-equivalent in comparison with other working persons, and, at the same time, it also violates the constitutional principle of a state under the rule of law which, in addition to the other requirements, also implies that the human rights and freedoms must be ensured, that all the institutions implementing the state power, as well as other state institutions, must act by following law and conforming to law, that the Constitution has the supreme legal power and that all the legal acts must be in line with the Constitution.
  3. While deciding whether Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish that also the pay for overtime work, work during days off, and work on holidays is a constituent part of the work remuneration of the mayor and deputy mayor, is not in conflict with Paragraph 1 of Article 29 of the Constitution and with the constitutional principles of a state under the rule of law, it needs to be noted that, as mentioned before:

– the constitutional principle of equality of persons before the law means the innate right of the person to be treated equally with the others and obliges one to legally assess homogenous facts in the same manner and prohibits from the arbitrary assessment of the facts that are the same in essence in a different manner; the constitutional principle of equality of persons does not deny a possibility to provide, by means a law, for a different legal regulation in respect to certain categories of persons who are in different situations;

– the principle of the equality of rights of persons is inseparable from the constitutional principle of a state under the rule of law, which is a universal principle upon which the entire Lithuanian legal system and the Constitution itself are based; a violation of the constitutional principle of the equality of rights of persons at the same time is a violation of the constitutional imperatives of justice and a harmonious society, thus, it is also a violation of the constitutional principle of a state under the rule of law.

7.1. It has been mentioned that the legal regulation consolidated in Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, through which inter alia the structure of the work remuneration of the mayor and deputy mayor is established, the pay for overtime work, work during days off, and work on holidays, when one has in mind the functions attributed to these persons and their legal status, is not provided for as a constituent part of their work remuneration.

In this context, it needs to be noted that neither the Law on the Pay for Work of State Politicians and State Officials nor other provisions of other laws provide for the remuneration for overtime work, work during days off, and work on holidays as a constituent part of the work remuneration of the mayor and deputy mayor.

7.2. As mentioned before, from the point of view of organisation of work, the activity of state politicians and municipal politicians is specific and the legal regulation governing the said activity cannot be absolutely identical to the general regulation of employment relations, inter alia when it establishes the requirements of the structure of the working time and its recording.

7.3. Thus, the specificity of the activity of state politicians or municipal politicians, inter alia mayors and deputy mayors, determine the differences in their legal situation vis-à-vis other working persons, due to which they may be treated in a manner different from the treatment of other working persons and a different legal regulation of the pay for work may be established for them in comparison with other working persons.

7.4. It needs to be held that the different (in comparison with other working persons) legal regulation governing the pay for work of the mayor and deputy mayor, when account is taken of the different situation (in comparison with other working persons) of the mayors and deputy mayors, who are municipal politicians, which is determined, as mentioned before, by the functions attributed to them and their legal status, did not create any preconditions for the violation of Paragraph 1 of Article 29 of the Constitution.

7.5. It needs to be noted that the petitioner impugns the compliance of the specified legal regulation with the constitutional principle of a state under the rule of law while referring to the same arguments as when impugning the compliance of this legal regulation with Paragraph 1 of Article 29 of the Constitution.

Thus, having held that Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish that also the pay for overtime work, work during days off, and work on holidays is a constituent part of the work remuneration of the mayor and deputy mayor, did not create any preconditions for the violation of Paragraph 1 of Article 29 of the Constitution, one should hold that, in the impugned aspect, the constitutional principle of a state under the rule of law was not violated, either.

7.6. While taking account of the arguments set forth, one is to draw a conclusion that Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish that also the pay for overtime work, work during days off, and work on holidays is a constituent part of the work remuneration of the mayor and deputy mayor, is not in conflict with Paragraph 1 of Article 29 of the Constitution and with the constitutional principle of a state under the rule of law.

  1. Alongside, it needs to be noted that, while ensuring the right of the state politicians and municipal politicians to receive fair pay for work, under the Constitution, the legislator must establish the legal regulation to the effect that the amount of the pay for work established for state politicians and municipal politicians would comply with the specificity of the activity of these persons and would not create any preconditions for the groundless singling out, in the course of the establishing of the amount of the pay for work, of a certain group of persons (in this case, the mayors and deputy mayors) from the same category of persons (in this case, state politicians) assessed from the point of view of the legal regulation of the pay for work.

It also needs to be noted that when one regulates the amounts of the work remuneration of state politicians or municipal politicians by law (in this case—the Law on the Pay for Work of State Politicians and State Officials), the amounts of the work remuneration for separate groups of persons belonging to the same category of persons assessed from the viewpoint of the legal regulation of the pay for work, may be differentiated, however, it must be grounded on certain clear objective criteria, such as the nature of the functions attributed to persons who belong to the separate groups of persons of this category, the difficulty, significance and extent of these functions and responsibility for carrying out of these functions. The same should also be said about the differentiation of the amounts of the work remuneration of the persons who belong to the same group of persons which is to be assessed from the viewpoint of the legal regulation of the pay for work: one may differentiate the amounts of work remuneration by means of legal regulation, however, it must be grounded on clear and objective criteria reflecting the peculiarities of the activity of persons who belong to the corresponding group.

While establishing the amounts of the work remuneration of mayors (deputy mayors) by means of legal regulation, one must take account of the circumstances that determine the possibility of their differentiation.

In this context it needs to be noted that municipalities may differ substantially not only in the number of residents living in their territory, but also inter alia in their size and the extent of the questions whose decision is attributed to the municipal competence due to their significance and difficulty; thus, the extent of the activity of municipal politicians and the degree of the responsibility falling on them may also differ due to the peculiarities of the corresponding municipality, therefore, while differentiating the amounts of the work remuneration of mayors (deputy mayors) by legal regulation, one must take account of this specificity of their activity.

V

On the compliance of Paragraph 12 of Article 19 of the Law on the Pay for Work of State Politicians and State Officials (wording of 15 September 2008) with Paragraph 1 of Article 29 of the Constitution, the provision “[e]ach working human being shall have the right to <…> leisure as well as to an annual paid leave” of Paragraph 1 of Article 49 thereof and with the constitutional principle of a state under the rule of law.

  1. It has been mentioned that in the constitutional justice case at issue one inter alia investigates whether the provision “[l]eave shall be granted to the mayor and deputy mayor at a decision of the municipal council” of Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) is not in conflict with Paragraph 1 of Article 29 of the Constitution, Paragraph 1 of Article 29 of the Constitution, the provision “[e]ach working human being shall have the right to <…> leisure as well as to an annual paid leave” of Paragraph 1 of Article 49 thereof and with the constitutional principle of a state under the rule of law.
  2. The petitioner’s doubts regarding the compliance of the impugned legal regulation with the Constitution are substantiated inter alia by the fact that, according to the petitioner, under Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008), the mayor and deputy mayor are granted leave at a decision of the municipal council; this provision does not regulate how the mayor and deputy mayor are granted leave when no sitting of the municipal council is called. Thus, it is not clear how the mayor and deputy mayor may enjoy their right to go on leave (in particular, under important circumstances), when no sitting of the municipal council is called from the day of the submission of a request to grant leave until the start of the leave specified in the request. Therefore, the situation of the mayor and deputy mayor becomes non-equivalent in comparison with other working persons, as without calling a sitting of the municipal council they may not implement their right to go on leave.
  3. Paragraph 12 of Article 19 “The Mayor and the Deputy Mayor” of the Law on Local Self-Government (wording of 15 September 2008) inter alia prescribed: “Leave shall be granted to the mayor and deputy mayor at a decision of the municipal council under the procedure established by the regulation of activity.”
  4. It has been mentioned that Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) prescribes the procedure for granting leave to the mayor and deputy mayor: leave is granted at a decision of the municipal council; the procedure for granting leave to the mayor and deputy mayor is elaborated in the regulation of activity of the municipal council.
  5. In this context, while assessing the statement of the party concerned that the right of the municipal council to grant leave to the mayor and deputy mayor could be transferred to other municipal institutions, i.e. the municipal executive institution, it needs to be noted that, while revealing inter alia the main principles of self-government, in its ruling of 24 December 2002 the Constitutional Court inter alia held that:

 – interrelations of municipal councils and their executive bodies are based on the constitutional principle of the accountability of executive bodies to the representation as well as that of the supremacy of municipal councils in regard to the executive bodies which are accountable to them;

– the municipal councils have the powers to control the executive bodies which are established by and accountable to the former.

5.1. It has been mentioned that the mayor is the head of the municipality, he performs inter alia the functions of the organisation of the activity of the municipal council, the representation of the municipality and the functions of control and supervision of the activity of the subjects that are related to the municipality; the deputy mayor performs the functions established by the municipal council and carries out the instructions of the mayor, as well as in the event the mayor cannot carry out his duties, he exercises the duties of the mayor, save the  exceptions established by the Law on Local Self-Government (wording of 15 September 2008).

Thus, the mayor and deputy mayor inter alia perform the function of the organisation of the activity of the municipal council as a political representative municipal institution, whereas the adoption of the decision regarding granting leave to the mayor and deputy mayor is related inter alia with the organisation of the work of the municipal council as a political representative municipal institution.

5.2. Thus, while construing the impugned legal regulation as granting the right for the municipal executive institution to adopt a decision regarding granting leave to the mayor and deputy mayor, by unreasonably expanding the powers of the municipal executive institution, one would remove the essential difference between the municipal councils as political representative municipal institutions through which the self-government right is implemented, and the executive bodies which are established by and accountable to the latter.

Consequently, while construing the impugned legal regulation only in the way that, according to it, the right to grant leave to the mayor and deputy mayor must belong to the municipal council and it could not be transferred to the municipal executive institution, one would follow the constitutional principle of the accountability of the executive institutions to the municipal councils that have formed the latter and that of the supremacy of the municipal councils in regard to the executive institutions which are accountable to them.

  1. While deciding whether the provision “[l]eave shall be granted to the mayor and deputy mayor at a decision of the municipal council” of Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) is not in conflict with the provision “[e]ach working human being shall have the right to <…> leisure as well as to an annual paid leave” of Paragraph 1 of Article 49, it needs to be noted that, as mentioned before:

– Paragraph 1 of Article 49 of the Constitution consolidates inter alia the constitutional right to leisure guaranteed to each working person; this constitutional right must be construed as inter alia meaning the right of the working person, in cases and under the procedure established by the legislator, to receive the time free from work when this person, due to the circumstances recognised as important by the legislator, may not perform the functions of his work; the legislator must establish the legal regulation that would ensure an opportunity for the working persons to enjoy this right in reality;

– while establishing, by law, the essential conditions for the implementation of the constitutional right to annual paid leave which stems from Paragraph 1 of Article 49 of the Constitution, one must consolidate the legal regulation that would ensure an opportunity for the working persons to enjoy this constitutional right in reality.

6.1. It has been mentioned that Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) prescribes the procedure for granting leave to the mayor and deputy mayor: leave is granted at a decision of the municipal council; the procedure for granting leave to the mayor and deputy mayor is elaborated in the regulation of activity of the municipal council.

6.2. It has been mentioned that, according to the legal regulation, the sittings of the municipal council are called at least every 3 months, as well as they may be called in case of need; the law prescribes the procedure for the organisation of the municipal council’s sittings, inter alia the fact that inter alia the members of the municipal council must be notified about the time of a sitting of the municipal council not later than three working days preceding the beginning of the sitting.

Thus, the municipal council’s sittings must be called and organised in compliance with the procedure for the calling and organisation of the municipal council’s sittings, under which, in case the necessity to adopt a decision, inter alia regarding granting leave to the mayor and deputy mayor, arises, the sittings of the municipal council cannot be called immediately.

6.3. In the context of the constitutional justice case at issue it needs to be noted that one must establish the legal regulation that would create the opportunities for the mayor and deputy mayor to implement their constitutional rights to annual paid leave and to leisure also in the period when they are granted not subsequent to the request submitted in advance or the expressed need for an annual paid leave, as well as upon the appearance of the circumstances recognised as important by the legislator due to which the mayor and deputy mayor may not perform the functions of their work.

Otherwise, if the legal regulation established the procedure for granting annual paid leave and, in particular, the said other free time from work, which may lead to a situation where the implementation of the constitutional rights of the mayor and deputy mayor to annual paid leave and to leisure, in reality, becomes impossible, the preconditions would be created for the limitation of the constitutional rights of the mayor and deputy mayor to annual paid leave and to leisure that are guaranteed in Paragraph 1 of Article 49 of the Constitution.

6.4. Thus, the legal regulation consolidated in Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) did not establish any procedure for granting leave to the mayor and deputy mayor, which should have created preconditions for the implementation of the constitutional rights of the mayor and deputy mayor to paid annual leave and to leisure in the period between the sittings of the municipal council.

Consequently, while having established in Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) that leave shall be granted to the mayor and deputy mayor at a decision of the municipal council, and having not established any legal regulation that should have created preconditions for the implementation of the constitutional rights of the mayor and deputy mayor to paid annual leave and to leisure in the period between the sittings of the municipal council, one created the preconditions for a violation of the provision “[e]ach working human being shall have the right to <…> leisure as well as to an annual paid leave” of Paragraph 1 of Article 49 of the Constitution.

6.5. One is to draw a conclusion that the provision “[l]eave shall be granted to the mayor and deputy mayor at a decision of the municipal council” of Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008), insofar as the legal regulation established therein did not create any preconditions for the implementation of the constitutional rights of the mayor and deputy mayor to paid annual leave and to leisure in the period between the sittings of the municipal council, was in conflict with the provision “[e]ach working human being shall have the right to <…> leisure as well as to an annual paid leave” of Paragraph 1 of Article 49 of the Constitution.

  1. Having held that, in the constitutional justice case at issue, the Constitutional Court will further not investigate whether the provision “[l]eave shall be granted to the mayor and deputy mayor at a decision of the municipal council” of Paragraph 12 of Article 19 of the Law on Local Self-Government (wording of 15 September 2008) was not in conflict with Paragraph 1 of Article 29 of the Constitution, and with the constitutional principle of a state under the rule of law.

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

ruling:

  1. To recognise that Paragraph 1 (wording of 6 November 2008, Official Gazette Valstybės žinios, 2008, No. 131-5021) of Article 3 of the Republic of Lithuania’s Law on the Pay for Work of State Politicians and State Officials, insofar as it does not establish that also the pay for overtime work, work during days off, and work on holidays is a constituent part of the work remuneration of the mayor and deputy mayor, is not in conflict with the Constitution of the Republic of Lithuania.
  2. To recognise that the provision “[l]eave shall be granted to the mayor and deputy mayor at a decision of the municipal council” of Paragraph 12 of Article 19 of the Republic of Lithuania’s Law on Local Self-Government (wording of 15 September 2008, Official Gazette Valstybės žinios, 2008, No. 113-4290), insofar as the legal regulation established therein did not create any preconditions for the implementation of the constitutional rights of the mayor and deputy mayor to paid annual leave and to leisure in the period between the sittings of the municipal council, was in conflict with the provision “[e]ach working human being shall have the right to <…> leisure as well as to an annual paid leave” of Paragraph 1 of Article 49 of the Constitution of the Republic of Lithuania.

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

Justices of the Constitutional Court:                                    Egidijus Bieliūnas

                                                                                                        Toma Birmontienė

                                                                                                        Pranas Kuconis

                                                                                                        Gediminas Mesonis

                                                                                                        Ramutė Ruškytė

                                                                                                        Egidijus Šileikis

                                                                                                        Algirdas Taminskas

                                                                                                        Romualdas Kęstutis Urbaitis

                                                                                                        Dainius Žalimas