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Content updated: 10-07-2019 11:24

The provision of the Law Amending Articles 11 and 13 of the Law on Professional Performing Arts concerning the invalidity of the results of competitions for the positions of the heads of theatres and concert establishments is in conflict with the Constitution

25-06-2019

By its ruling adopted today, the Constitutional Court has recognised that Paragraph 3 of Article 3 of the Law Amending Articles 11 and 13 of the Law on Professional Performing Arts (hereinafter referred to as the Law), insofar as it provides that a competition organised prior to the entry into force of this law for the position of the head of a national, state, or municipal theatre or concert establishment is considered invalid if the winner of the competition has been determined but has not taken up the position, is in conflict with the provision “everyone may freely choose an occupation” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

The Vilnius Regional Court, the petitioner, had doubts whether the impugned legal regulation violated the legitimate expectations of the persons who had won competitions for the positions of the head of a national, state, or municipal theatre or concert establishment prior to the entry into force of the Law (on 1 July 2017) to be employed and work under an employment contract in the position for which they had won the competition. In addition, according to the petitioner, by regulating, in Paragraph 3 of Article 3 of the Law, the existing legal relations resulting from public competitions in a different manner, the legislature disregarded the requirement stemming from the Constitution that laws and other legal acts have no retroactive effect.

In its ruling, the Constitutional Court noted that the Constitution, among other things, Paragraph 2 of Article 42 thereof, gives rise to the duty of the legislature, in order to implement the public interest, i.e. to ensure freedom of culture and state support for culture, to create, by means of a legal regulation, the preconditions for state (municipal) establishments providing public cultural services to effectively foster and develop culture as a national value of universal importance. In this regard, the Constitution, inter alia, Paragraph 1 of Article 48 thereof, which consolidates the right of everyone to freely choose an occupation, gives rise to the powers of the legislature to establish certain qualification, reputation, and (or) other requirements for persons working in these establishments and the more so for persons who are heads of these establishments in cases where the legislature regulates the activity of state (municipal) establishments providing public cultural services.

The Constitutional Court noted that, after on 11 May 2017 the Seimas adopted the Law whose Paragraph 3 of Article 3 was impugned by the petitioner, Article 11 of the Law on Professional Performing Arts had been amended. Among other things, it prescribed a new requirement for the heads of national, state, and municipal theatres and concert establishments, as well as for candidates for these positions – to meet the established criteria of good repute. The Law was aimed at improving the activity of national, state, and municipal theatres and concert establishments and ensuring the effectiveness of the management of these theatres and concert establishments and the high level of competence of their heads, as well as at increasing the responsibility of the heads of these theatres and concert establishments.

The Constitutional Court recognised that, in such a way, the legislature implemented the said constitutional powers to establish certain reputation, qualification, and (or) other requirements for the heads of state (municipal) establishments providing public cultural services. However, as the Constitutional Court emphasised, these constitutional requirements must be implemented in accordance with the Constitution, among other things, paying regard to the imperatives stemming from the constitutional principle of a state under the rule of law, including the requirement for the acts not to have the retroactive effect (lex retro non agit), the principles of the protection of legitimate expectations, legal certainty, and legal security, and the requirement not to restrict the rights and freedoms of a person more than necessary in order to reach the legitimate objectives, which is implied by the constitutional principle of proportionality.

When assessing the impugned legal regulation established in Paragraph 3 of Article 3 of the Law, the Constitutional Court noted that, under this legal regulation, those winners of competitions for the positions of the heads of national, state, or municipal theatres or concert establishments who had not started holding these positions until 30 June 2017 could no longer take up the respective office as the competitions they had won were declared invalid. By having annulled, by means of the Law, the results of these competitions, the legislature intervened in the legal relations linked to the organisation and implementation of these competitions despite the fact that the said relations had already expired. Such a legal regulation worsened the legal situation of all the winners of competitions for the positions of the heads of national, state, or municipal theatres or concert establishments who had not started holding these positions until 30 June 2017, as they could no longer take up the respective office regardless of whether they met the criteria of good repute established by the Law, i.e. these persons could no longer in practice exercise their rights, gained under the laws and other legal acts in force at that time, to take up the respective office as the heads of national, state, or municipal theatres or concert establishments.

It is also noted in the ruling that the impugned legal regulation did not create the legal preconditions for evaluating the reputation of the winners of competitions for the positions of the heads of national, state, or municipal theatres or concert establishments who had not started holding these positions where such competitions had taken place prior to the entry into force of the Law; the impugned legal regulation prevented from taking up the respective office not only those winners of the said competitions who would not have met the established criteria of good repute but also those winners who would have met the said criteria if their reputation had been evaluated. Thus, such a legal regulation did not create the preconditions for evaluating, to the greatest extent possible, the individual situation of every person and, while taking into account all significant circumstances, also individualising respectively the specific applicable measures restricting the rights of the person concerned (in this case, the right to freely choose an occupation, which is consolidated in Paragraph 1 of Article 48 of the Constitution), .

In this context, the Constitutional Court noted that the legal regulation established in Paragraph 6 of Article 11 of the Law on Professional Performing Arts, under which the heads of national, state, or municipal theatres or concert establishments must be dismissed from office if they do not meet the established criteria of good repute, created the preconditions for evaluating the individual situation of every head of national, state, or municipal theatre or concert establishment, also the individual situation of the winners of competitions for the positions of the heads of national, state, or municipal theatres or concert establishments who had not started holding these positions, where such competitions had taken place prior to the entry into force of the Law, in order to prevent persons who are not of good repute from holding (taking up) such office. The Constitutional Court also pointed out that Paragraph 3 of Article 42 of the Labour Code provides that compensation in an amount of no more than the remuneration of one month must be paid to the winners of competitions for the positions of the heads of national, state, or municipal theatres or concert establishments in cases where the said competitions had taken place prior to the entry into force of the Law and the winners had not taken up the respective office without any fault of their own; in addition, due to the legal regulation established in the impugned Paragraph 3 of Article 3 of the Law, this compensation may not in itself be considered as proportionate and sufficient means to compensate for losses that, upon the annulment of the results of the competitions, were experienced by persons who had won competitions for the positions of the heads of the said theatres or concert establishments prior to the entry into force of the Law but had not taken up the respective office.

In summing up, the Constitutional Court held that the impugned legal regulation, established in Paragraph 3 of Article 3 of the Law, had the retroactive effect and it worsened the legal situation of the winners of competitions for the positions of the heads of national, state, or municipal theatres or concert establishments in cases where these competitions had taken place prior to the entry into force of the Law and the said winners had not started holding these positions, as well as violated the legitimate expectations of these persons to take up the respective positions for which they had won competitions, provided that they met the requirement of good repute established by the Law. Moreover, this legal regulation, which annulled the results of all competitions for the positions of the heads of the said theatres or concert establishments in cases where their winners had not started holding these positions until 30 June 2017, restricted the right of the said persons to freely choose an occupation, which is consolidated in Paragraph 1 of Article 48 of the Constitution, more than necessary in order to reach the objectives of the Law.

In view of the above-mentioned arguments, the Constitutional Court made the conclusion that Paragraph 3 of Article 3 of the Law, insofar as it provided that a competition organised prior to the entry into force of this law for the position of the head of a national, state, or municipal theatre or concert establishment was considered invalid if the winner of the competition had been determined but had not taken up the position, was in conflict with the provision “everyone may freely choose an occupation” of Paragraph 1 of Article 48 of the Constitution and the constitutional principle of a state under the rule of law.

In the context of the constitutional justice case at issue, the Constitutional Court also pointed out that the Law on Professional Performing Arts did not prescribe any time limits for the announcement of competitions for the positions of the heads of national, state, or municipal theatres or concert establishments. Such terms had neither been established in the Law on Theatres and Concert Establishments that had been effective prior to the entry into force of the Law on Professional Performing Arts or in the Description of the Procedure for Competitions for the Positions of the Heads of National, State, and Municipal Theatres and Concert Establishments, as adopted by the order of the Minister of Culture on 29 December 2004 in implementing the above-mentioned law, whereby the procedure for organising competitions for the said positions had been regulated. The time limits for announcing the said competitions were established only in the Description of the Procedure for Competitions for the Positions of the Heads of National, State, and Municipal Theatres and Concert Establishments, as approved by the government resolution of 26 April 2017, after this description was adopted in accordance with Paragraph 1 of Article 11 of the Law on Professional Performing Arts. In this respect, it is noted in the ruling of the Constitutional Court that, under the Constitution, assessing the compliance of the acts passed by ministers with the Constitution and (or) laws does not fall under the competence of the Constitutional Court; this is the competence of the respective (competent) administrative court.

By this ruling, the Constitutional Court did not decide the case concerning any specific persons or competitions. The Court recalled the general rule consolidated in the Constitution that the legal force of its decisions is prospective. Thus, the recognition, by means of this ruling, that the legal regulation impugned in this case is in conflict with the Constitution does not in itself restore the legal situation that existed before the entry into force of the Law, i.e. the results of competitions that had taken place before the entry into force of the Law in cases where these results had been annulled by the legal regulation incompliant with the Constitution are not restored in themselves.

In view of the above, the Constitutional Court emphasised that, in considering specific legal disputes linked to competitions for the positions of the heads of national, state, or municipal theatres or concert establishments in cases where these competitions had been organised prior to the entry into force of the Law and whose winners had not taken up the respective office, courts, under Paragraph 1 of Article 109 of the Constitution, while administering justice, must ensure the implementation of the regulation expressed in the Constitution, laws, and other legal acts, must protect human rights and freedoms and the public interest, must consider cases in a fair and objective manner, and must, while adopting decisions, assess the interests and legitimate expectations of the winners of both competitions that were declared invalid under Paragraph 3 of Article 3 of the Law and newly organised competitions for the positions of the heads of the above-mentioned theatres or concert establishments, as well as assess the circumstances of the organisation and implementation of these competitions (thus, also the basis and procedure for organising these competitions).

The full text of this ruling of the Constitutional Court can be found on the website of the Constitutional Court at http://lrkt.lt/lt/teismo-aktai/paieska/135/ta1944/content