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Content updated: 23-12-2020 09:20

The legal regulation establishing the procedure for the allocation of budget funds for research, experimental development, and artistic activities carried out by institutions of science and studies is unconstitutional

07-12-2020

By its ruling passed today, the Constitutional Court has recognised that the provision “in accordance with the procedure established by the Government” of Paragraph 2 of Article 75 of the Law on Science and Studies and Paragraph 3 of the same article contradict Paragraph 2 of Article 5 of the Constitution (“The scope of power shall be limited by the Constitution”), Paragraphs 1 and 2 of Article 42 thereof (“Culture, science and research, and teaching shall be free”; “The State shall support … science”), Paragraph 2 of Article 128 thereof (“The procedure for the possession, use, and disposal of state-owned property shall be established by law”), and the constitutional principles of a state under the rule of law and the separation of powers. Subitem 1.2 of the government resolution (No 149) of 1 March 2017 (as amended on 9 August 2017) on implementing the Republic of Lithuania’s Law on Science and Studies has been recognised to be in conflict with Paragraph 2 of Article 7 of the Constitution (“Only laws that are published shall be valid”) and the constitutional principles of a state under the rule of law and responsible governance. In addition, Subitem 3.6 of the same resolution and the Description of the Procedure for Allocating Funds of the State Budget of the Republic of Lithuania to Institutions of Science and Studies for Research, Experimental Development, and Artistic Activities (as amended) (hereinafter referred to as the Description), as approved by the said government resolution, have been recognised to be in conflict with Paragraph 2 of Article 5, Paragraph 3 of Article 40, Paragraphs 1 and 2 of Article 42, Paragraph 2 of Article 128 of the Constitution, and the constitutional principles of a state under the rule of law and the separation of powers.

This ruling of the Constitutional Court will enter into force on 1 July 2021.

The Supreme Administrative Court of Lithuania examined an administrative case in which a member of the Seimas, the petitioner, requested an investigation into the constitutionality of the orders of the Minister of Education and Science regulating the procedure of the annual assessment of research and experimental development (hereinafter referred to as the RED) and of artistic activities, and a comparative expert assessment of RED activities, which is conducted every five years. In the opinion of the petitioner in the said administrative case, the normative administrative acts under investigation provide for new criteria for the assessment of RED activities and they apply to the activities carried out before the publication of those criteria. Those acts were adopted by the Minister of Education and Science when implementing, among others, the government resolution (No 149) of 1 March 2017 (as amended on 9 August 2017) and the Description approved by it.

The provisions of the Constitution and the official constitutional doctrine

The Constitutional Court has stated on several occasions that the constitutional principle of a state under the rule of law implies various requirements for law-making entities: the legal regulation laid down in laws and other legal acts must be clear, comprehensible, and coherent; the effect of legal acts must be prospective, whereas the retroactive effect of laws and other legal acts is not permitted (lex retro non agit), unless the situation of a subject of legal relationships would be alleviated without prejudice to other subjects of legal relationships. This means that it is not allowed to require that a certain person obey such rules that did not exist at the time when he/she performed the relevant actions; therefore, such a person was unable to know requirements that could be imposed in the future. The legal principle that published laws have prospective effect and no retroactive effect is reflected in Paragraph 2 of Article 7 of the Constitution, which provides that only laws that are published are valid, where the term “laws” is interpreted in an expanding manner as the term that includes not only legal acts that have the legal force of a law, but also other legal acts.

The Constitutional Court has also repeatedly held that the constitutional principle of a state under the rule of law is also reflected in Paragraph 2 of Article 5 of the Constitution, which consolidates the constitutional principle of responsible governance and stipulates that the scope of power is limited by the Constitution.  The Constitutional Court noted that, when regulating the issues of state support for science and studies, it is necessary to have regard to the requirement, arising from the Constitution, among others, from the constitutional principles of a state under the rule of law and responsible governance, to provide for a proper vacatio legis, i.e. a sufficient period of time within which institutions of science and studies could prepare themselves properly for the implementation of the changed requirements, resulting from the new legal regulation, for the quality of science and studies.

The Constitutional Court has also held that the constitutional principle of a state under the rule of law is related to the constitutional principle of the separation of powers, enshrined in the Constitution, among others, Paragraph 2 of Article 5 thereof. This is the fundamental principle of the organisation and functioning of a democratic state under the rule of law. According to this principle, if the Constitution 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; the Seimas has no right to entrust the Government or any other institution with the implementation of the constitutional competence of the Seimas.

The constitutional principle of a state under the rule of law and other constitutional imperatives give rise to the requirement for the legislature to pay regard to the hierarchy of legal acts that originates from the Constitution: lower-ranking legal acts are prohibited from regulating such social relationships that may be regulated only by means of higher-ranking legal acts, among others, substatutory legal acts are prohibited from regulating relationships that may be regulated only by means of laws.

In this ruling, the Constitutional Court noted that, under the Constitution, among others, Paragraph 2 of Article 42 thereof, such a form of state support for science as the allocation of state budget funds to institutions of science and studies for research and research development must be subject to the state’s scientific policy priorities, which are determined in the light of the functions of the State of Lithuania (which derive from the Constitution), of the objectives and tasks facing the State of Lithuania and its society, and of the financial and economic capacities of the state. The Constitutional Court also noted that the priorities of state support for science affect the implementation of freedom of science and research (Paragraph 1 of Article 42 of the Constitution) and of autonomy of schools of higher education (Paragraph 3 of Article 40 of the Constitution), which are guaranteed under the Constitution, and that the provisions of Paragraph 2 of Article 128 of the Constitution that the procedure for the possession, use, and disposal of state-owned property is established by law are inseparable from the obligation to the state to support science, as established in Paragraph 2 of Article 42 of the Constitution.

Taking this into account, the Constitutional Court held that the Constitution, among others, Paragraph 3 of Article 40, Paragraphs 1 and 2 of Article 42, and Paragraph 2 of Article 128 thereof, as well as the constitutional principle of a state under the rule of law, give rise to the requirement that the most important elements of state support for science in the form of the allocation of state budget funds to institutions of science and studies for research and research development, among others, the basics of the system for assessing the scientific activities of those institutions and the criteria for assessing the results, as well as the principles of allocating state budget funds for those needs, must be established by means of a law. Taking into account the necessity to rely in law-making on special knowledge or special (professional) competence, the legislature may instruct the Government (or its authorised institution) to detail and specify the legal regulation laid down by means of a law and governing the allocation of state budget funds to institutions of science and studies for research and research development, to establish a procedure for implementing such a legal regulation, as well as to regulate the procedural aspects of the determination and assessment of results of scientific activity.

In this ruling, the Constitutional Court stressed that, under the Constitution, among others, Paragraph 3 of Article 40 and Paragraphs 1 and 2 of Article 42 thereof, and the constitutional principle of a state under the rule of law, when establishing the criteria for assessing the results of the scientific activity carried out by institutions of science and studies where the said criteria determine the amount of the state budget funds allocated to scientific research and research development, it is necessary to pay regard to the requirement to assess the significance of such activity in particular in terms of novelty, original ideas, fundamentality, impact upon the formation of new areas and/or fields of scientific research, among others, the viability and productivity of scientific works, their significance for the functions of the State of Lithuania, which arise from the Constitution, the objectives and tasks faced by the State of Lithuania and its society, the international authority of Lithuanian science and its influence on the progressive development of the relevant area (or field) of science outside Lithuania. The significance and value of scientific works cannot be measured solely on the basis of formal (quantitative) criteria (indicators), among others, on the basis of the source or language of their publication; the importance of requirements such as the publishing of scientific works in publications that are referenced in international databases must not be disproportionately large when deciding on the allocation of state budget funds to institutions of science and studies for scientific research and research development, i.e., where such requirements are imposed, equivalent alternatives must also be established.

The assessment of the constitutionality of Subitem 1.2 of the government resolution of 1 March 2017

In this constitutional justice case, the Constitutional Court examined whether Subitems 1.2.1 and 1.2.2, i.e. Subitem 1.2 in its entirety, of the government resolution of 1 March 2017 were in conflict with Paragraph 2 of Article 7 of the Constitution and the constitutional principle of a state under the rule of law.

The Constitutional Court held that the impugned legal regulation established in Subitem 1.2.1 of the government resolution of 1 March 2017 stipulated that the annual assessments of research and experimental development (RED) and artistic activities of universities and institutes were to be performed in 2015 and 2016 in accordance with the procedure established in the Description; however, the said procedure was not in force in the assessment years (in 2015 and 2016); the annual assessment of RED and artistic activities of universities and institutes for 2017 was scheduled to take place in 2018 in accordance with the procedure laid down in the Description; the latter procedure entered into force in the second half of the assessment year 2017. It should be noted that such a legal regulation envisaged conducting the annual assessments of RED and artistic activities of universities and institutes for 2015, 2016, and 2017 (and distributing, based on the results of such an assessment, state budget funds among universities and institutes for their RED and artistic activities) in a manner substantially different from the one previously in force, among other things, on the basis of annual assessment criteria substantially different from those laid down in the previous legal regulation that had been in force in the evaluation year. On the other hand, the actual practice of assessing the scientific (or artistic) works of Lithuania’s institutions of science and studies in 2015 and 2016 was contrary to the legal regulation set out in Subitem 1.2.1 of the government resolution of 1 March 2017: those works were assessed in 2017 in accordance with the legal regulation governing the assessment of scientific (or artistic) works that used to be in force until then, which, however, could not be applied at the time of performing the assessment.

According to the impugned legal regulation laid down in Subitem 1.2.2 of the government resolution of 1 March 2017 and the related legal regulation, a comparative expert assessment of RED activities carried out by universities and institutes in 2013–2017 was to be performed in 2018 in accordance with the procedure set out in the Description, i.e. by assessing, on the basis of comparative expert assessment criteria, such data related to the quality, economic and social impact, and viability of RED activities of universities and institutes that had not been subject to an assessment in accordance with the legal regulation in force until then (i.e. in the assessment years 2013–2017) (the former legal regulation had not provided for a comparative expert assessment at all). Thus, the impugned legal regulation provided for performing a comparative expert assessment of RED activities of universities and institutes carried out in 2013–2017 (and distributing, based on the results of such an assessment, state budget funds among universities and institutes for their RED activities) according to new criteria, unknown to universities and institutes in the assessment year, for assessing their RED activities.

Taking this into account, the Constitutional Court concluded that the impugned legal regulation disregarded the following: the requirement, arising from the constitutional principle of a state under the rule of law and reflected in Paragraph 2 of Article 7 of the Constitution, that the effect of legal acts must be prospective, whereas the retroactive effect of legal acts is not permitted; the requirement, implied by the constitutional principle of a state under the rule of law, to establish in legal acts a clear, comprehensible, and coherent legal regulation; and the requirement, arising from the Constitution, among others, the constitutional principles of a state under the rule of law and responsible governance, to provide for a proper vacatio legis – a sufficient period of time within which institutions of science and studies could prepare themselves properly in accordance with the changed requirements for their scientific activity, as laid down in a new legal regulation – when regulating an assessment (relating to state support for science and studies) of activities carried out by institutions of science and studies.

The assessment of the constitutionality of Paragraphs 2 and 3 of Article 75 of the Law on Science and Studies, as well as of Subitem 3.6 of the government resolution of 1 March 2017 and of the Description that was approved by this subitem

The Constitutional Court has held on more than one occasion that the implementation of constitutional justice implies that a legal act (part thereof) that is in conflict with the Constitution must be removed from the legal system. If the Constitutional Court did not state the unconstitutionality of the not impugned legal act related to the impugned legal act, this would not be in line with the constitutional mission of the Constitutional Court to administer constitutional justice, and to guarantee both the supremacy of the Constitution in the legal system and constitutional lawfulness. Therefore, according to the Constitution, the Constitutional Court must remove from the legal system all anticonstitutional provisions whose unconstitutionality becomes apparent in a relevant constitutional justice case under consideration. Such an obligation of the Constitutional Court stems from the Constitution and the supremacy of the Constitution is ensured in such a way.

In its ruling, the Constitutional Court held that the legislature, by means of the provision “in accordance with the procedure established by the Government” of Paragraph 2 of Article 75 of the Law on Science and Studies and Paragraph 3 of the same article, instructed the Government to establish a procedure for allocating state budget funds to institutions of science and studies for the development of their RED and artistic activities. Under such a legal regulation, the Government was instructed, among other things, to establish the most important elements of state support for science in the form of the allocation of state budget funds to institutions of science and studies for research and research development, among others, the basics of the system for assessing the scientific activities of these institutions and the criteria for assessing the results, as well as the principles of allocating state budget funds for research and research development.

The Constitutional Court also held that the Description, which was approved by Subitem 3.6 of the government resolution of 1 March 2017 in order to implement the instruction laid down in Paragraphs 2 and 3 of Article 75 of the Law on Science and Studies, consolidated a two-stage system of assessing RED activities of universities and institutes, established the distribution of state budget funds according to the respective parts of this system – the results of an annual assessment and of a comparative expert assessment, and laid down other principles of distributing state budget funds among institutions of science and studies for the development of their RED and artistic activities.

Taking this into account, the Constitutional Court concluded that the said legal regulation, enshrined in Paragraphs 2 and 3 of Article 75 of the Law on Science and Studies, Subitem 3.6 of the government resolution of 1 March 2017, and the Description, which was approved by the said subitem, disregarded the requirement, arising from the Constitution, among others, Paragraph 3 of Article 40, Paragraphs 1 and 2 of Article 42, and Paragraph 2 of Article 128 thereof, as well as from the constitutional principle of a state under the rule of law, that the most important elements of state support for science in the form of the allocation of state budget funds to institutions of science and studies for research and research development must be established by means of a law, nor did they pay regard to the prohibition, arising from Paragraph 2 of Article 5 of the Constitution and the constitutional principle of a state under the rule of law, on entrusting the Government with the implementation of the constitutional competence of the Seimas, i.e. on regulating by means of substatutory legal acts such legal relationships that must, under the Constitution, be regulated by means of laws.

On the official publication of this ruling of the Constitutional Court and the ensuing legal consequences

The Constitutional Court noted that the constitutional justice concept, which stems from the Constitution, implies not a perfunctory and nominal constitutional justice, but such final acts of the Constitutional Court that are not unjust according to their content. Otherwise, without creating the possibility for the Constitutional Court to adopt, in accordance with the powers conferred upon it, such a final act that would meet the criteria of justice, the supremacy of the Constitution in the legal system would not be guaranteed and the administration of constitutional justice and the ensuring of constitutional lawfulness would be prevented. The powers of the Constitutional Court to administer constitutional justice and to ensure constitutional lawfulness are inseparable from the imperatives of the constitutional principle of a state under the rule of law, among others, the requirements of legal security, legal certainty, justice, and reasonableness, as well as from the requirement, arising from the constitutional principle of a state under the rule of law, to respect the general principle of law ex injuria jus non oritur (illegal acts cannot create law).

Under Paragraph 1 of Article 107 of the Constitution, a law (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. In this context, it should be stressed that, under the Constitution, among others, according to the principles of the supremacy of the Constitution and a state under the rule of law, and the ensuing imperatives of constitutional lawfulness and the general principle of law ex injuria jus non oritur (illegal acts cannot create law), following the entry into force of a ruling of the Constitutional Court by means of which a certain legal act (part thereof) has been ruled in conflict with the Constitution, lower-ranking legal acts adopted on the basis of that legal act (or part thereof) may not be applied, either.

Thus, after the entry into force of this Constitutional Court ruling, the above-mentioned provisions of Article 75 of the Law on Science and Studies, as well as the Description (as amended) approved by the Government and all lower-ranking legal acts that were adopted in implementing the Description and that govern the allocation of state budget funds to institutions of science and studies for their RED and artistic activities, will no longer be applicable. Therefore, if the ruling of the Constitutional Court in this case were officially published immediately after its public pronouncement at the hearing of the Constitutional Court, a vacuum would occur in the legal regulation governing the allocation of state budget funds to institutions of science and studies for the development of their RED and artistic activities, with the result that it would be impossible to allocate state budget funds to institutions of science and studies for the development of their RED and artistic activities.

Having regard to the fact that a certain amount of time is needed to remove the vacuum in the legal regulation governing the allocation of state budget funds to institutions of science and studies for the development of their RED and artistic activities and that the adoption of necessary legislative decisions is related to state budget planning, the Constitutional Court decided to officially publish this ruling in the Register of Legal Acts on 1 July 2021. Under the Constitution, the Constitutional Court, having assessed what a legal situation might arise after a ruling of the Constitutional Court becomes effective, may determine the date of the official publication of that ruling; the Constitutional Court enjoys the constitutional power to establish also a later date of the official publishing (thus, also of entry into force) of its ruling, whereby a certain legal act (part thereof) was recognised as being in conflict with the Constitution, where, in the case the ruling of the Constitutional Court after its adoption were immediately officially published, a vacuum or other indeterminacies might appear in the legal regulation due to which certain values consolidated in and defended and protected by the Constitution could be violated in essence.

The Constitutional Court has disclosed the content of the presumption (which arises from the Constitution) of the constitutionality of legal acts and of the lawfulness of the consequences of their application: the provision of Paragraph 1 of Article 107 of the Constitution, whereby a law (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 (part thereof) is in conflict with the Constitution, means that, as long as the Constitutional Court has not adopted the decision that a certain legal act (part thereof) is in conflict with the Constitution, it is presumed that such a legal act (part thereof) is in compliance with the Constitution and that the legal consequences that have appeared on the basis of the act in question are lawful.

Consequently, the fact that in this ruling of the Constitutional Court it has been held that the provisions of Paragraphs 2 and 3 of Article 75 of the Law on Science and Studies, Subitems 1.2 and 3.6 of the government resolution of 1 March 2017, and the Description (as amended) approved by that resolution are in conflict with the Constitution does not in itself provide grounds for challenging the lawfulness of those decisions on the allocation of state budget funds to institutions of science and studies for the development of their RED and artistic activities that were made before the official publication of this ruling of the Constitutional Court.