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On the positional salaries of mayors and deputy mayors

 

Case no 2/2018

THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

RULING
ON THE COMPLIANCE OF ITEM 5 OF SECTION I OF THE ANNEX TO THE REPUBLIC OF LITHUANIA’S LAW ON THE REMUNERATION OF STATE POLITICIANS AND STATE OFFICIALS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

29 May 2019, no KT16-N7/2019
Vilnius

 

The Constitutional Court of the Republic of Lithuania, composed of the Justices of the Constitutional Court: Elvyra Baltutytė, Gintaras Goda, Vytautas Greičius, Danutė Jočienė, Gediminas Mesonis, Vytas Milius, Daiva Petrylaitė, Janina Stripeikienė, and Dainius Žalimas

The court reporter – Daiva Pitrėnaitė

The Constitutional Court of the Republic of Lithuania, pursuant to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1 and 531 of the Law on the Constitutional Court of the Republic of Lithuania, at a hearing of the Court, on 28 May 2019, considered, under written procedure, constitutional justice case (no 2/2018) subsequent to the petition (No 1B-2/2018) of the group of members of the Seimas of the Republic of Lithuania, the petitioner, requesting an investigation into whether Item 5 of Section I of the Annex to the Republic of Lithuania’s Law on the Remuneration of State Politicians and State Officials, insofar as, under this item, the remuneration of mayors and deputy mayors depends on the division of municipalities into two groups according to the number of residents, is in conflict with the provision “Everyone [...] shall have the right [...] to receive fair pay for work” of Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The arguments of the petitioner

1. The petition of the group of members of the Seimas, the petitioner, is based on the following arguments.

1.1. The right, consolidated in Paragraph 1 of Article 48 of the Constitution, to receive fair pay for work, inter alia, means the right of a person to receive such remuneration for work that would be fair in view of the nature of the performed work, the complexity and scope of work functions, responsibility for carrying out these functions, the particularities of the position held, and the professional level and qualifications of the person. The Constitutional Court has held that, under the Constitution, it is obligatory to lay down such a legal regulation under which the amount of remuneration established for state and municipal politicians would correspond to the specificity of the activity performed by these persons; the amount of remuneration may be differentiated for individual groups of persons falling into one category; however, this differentiation must be based on certain clear and objective criteria, such as the nature, complexity, significance, and scope of the functions assigned to persons belonging to individual groups within this category and their responsibility for carrying out these functions.

1.2. Lithuanian municipalities are very different not only in the number of residents living in their territory: in one of them, the capital of the State is located, in others – a few cities, in some others, there are resorts or resort territories, some of which are border areas, etc. Thus, the establishment of the sole criterion according to which the remuneration is established is insufficiently objective, since the mayors and deputy mayors face different challenges in their work activity. In addition, it is not clear why only one population threshold – 100 000 residents – is chosen. The work of the heads of Vilnius City Municipality, which has more than 0.5 million residents, has more particularities and greater responsibility falls to these heads in comparison with the heads of Vilnius District Municipality, which has about 100 000 residents. It is equally difficult to compare the work of mayors and their deputies in the smallest municipalities of the country, where slightly more than 3 000 residents live, with the work in Panevėžys City Municipality, where about 90 000 residents live. Thus, the impugned legal regulation consolidated in Item 5 of Section I of the Annex to the Law on the Remuneration of State Politicians and State Officials (hereinafter also referred to as the Law), under which the remuneration of mayors and deputy mayors depends on the division of municipalities into two groups according to the number of residents, does not comply with the provision “Everyone [...] shall have the right [...] to receive fair pay for work” of Paragraph 1 of Article 48 of the Constitution.

II

The arguments of the representative of the party concerned

2. In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from Gintautas Kinduris, the member of the Seimas, acting as the representative of the Seimas, the party concerned, in which it was maintained that the impugned legal regulation was not in conflict with the Constitution. The position of the representative of the Seimas, the party concerned, is based on the following arguments.

2.1. Under the Republic of Lithuania’s Law on Local Self-Government, the municipal mayors and deputy mayors of both larger and smaller municipalities implement the same functions in municipalities; therefore, their activity is, in principle, the same by its nature and functions assigned to it. In addition, in the above-mentioned law, it is provided for that, in view of the number of the members of a municipal council (which depends on the number of municipal residents), a mayor may have between one (in small municipalities) and three (in the municipalities the councils of which consist of 41 and more members) deputy mayors, and a secretariat may be established for the implementation of the functions of the mayor or deputy mayor. Thus, a different number of deputy mayors in municipalities and the secretariat of the municipal council and mayor partially compensates the scope of issues assigned to their competence due to the significance and complexity of these issues, the scope of the activity performed by mayors, and the extent of their responsibility.

2.2. Referring to the official constitutional doctrine, the representative of the party concerned noted that the remuneration of the mayors and deputy mayors of different municipalities for the same or essentially similar functions performed should not be different, since, otherwise, doubts would be raised concerning the implementation of the principles of fair pay for work and the equality of persons before the law. The legislature may differentiate the amount of remuneration; however, this differentiation must be based on certain clear and objective criteria. However, there is no imperative obligation to establish a few criteria. The sole objective criterion established by the impugned legal regulation – the number of residents of the municipality – does not create preconditions for unreasonably excluding, by establishing the amount of remuneration, a certain group of persons falling into one category from the point of view of the legal regulation of remuneration.

2.3. The number of municipal residents is also applied as an indicator when establishing the number of the members of municipal councils and when deciding on the number of the members of the council to be delegated to the regional development council, etc. While establishing coefficients to calculate the positional salaries of mayors and deputy mayors of municipalities, only one population threshold – 100 000 residents – is chosen, as the number of residents in municipalities is volatile and variable, especially in smaller municipalities, it is influenced by population migrations, birth rates, etc. By establishing one threshold, the stability of the situation is better ensured.

III

The material received in the case

3. In the course of the preparation of the case for the hearing of the Constitutional Court, written opinions were received from Darius Sadeckas, a Vice-Minister of Finance of the Republic of Lithuania, Linas Kukuraitis, the Minister of Social Security and Labour of the Republic of Lithuania, Darius Urbonas, a Vice-Minister of the Interior of the Republic of Lithuania, and Roma Žakaitienė, Director of the Association of Local Authorities in Lithuania.

3.1. In the written opinion of Darius Sadeckas, a Vice-Minister of Finance, it is noted that the specific coefficients of the positional salary of state politicians and state officials are established upon the evaluation of the complexity of work, the responsibility, etc. The criterion (the number of residents living in the territory of a municipality) established by the impugned legal regulation, which determines the coefficients that are applied in calculating the positional salaries of mayors and deputy mayors, is objective and relevant. However, when assessing the ongoing economic and administrative changes, the possibility of improving this criterion by further differentiation should be considered.

3.2. In the written opinion of Linas Kukuraitis, the Minister of Social Security and Labour, it is noted that the powers of mayors and deputy mayors established in Article 20 of the Law on Self-Government are equal for all municipalities; therefore, it may be stated that their work is of equal value.

The Law on the Remuneration of State Politicians and State Officials prescribes a clear system of remuneration paid to state politicians and state officials, where remuneration (the specific coefficient is established) depends on the position held and the number of years served to the Republic of Lithuania, and only remuneration for deputy mayors – also on the number of residents in the territory of a municipality. If even more different criteria for mayors and deputy mayors were established, a current uniform system of remuneration paid to state politicians and state officials would be distorted.

This additional objective criterion reflecting the number of residents in a municipality, under which mayors and deputy mayors are divided into two groups, was established on the basis of the official constitutional doctrine formulated in the Constitutional Court’s ruling of 30 April 2013, in which it is stated that, when the amount of the remuneration of mayors (deputy mayors) is established by means of a legal regulation, regard must be paid to the circumstances leading to the necessity to differentiate the amount of this remuneration; in addition to the number of residents living in their territory, municipalities can, inter alia, considerably vary in their size and the scope of issues assigned to their competence due to the significance and complexity of these issues; thus, the scope of the activity of municipal politicians and the extent of their responsibility may also vary due to the particularities of the municipality concerned; therefore, if the amount of the remuneration of mayors (deputy mayors) is differentiated by means of a legal regulation, account must also be taken of this specific nature of their activity. A more detailed division is not necessary as the established number of deputy mayors in municipalities and the size of the secretariat of the municipal council and mayor partially compensate the scope of issues assigned to their competence due to the significance and complexity of these issues, as well as the scope of the activity performed by mayors and the extent of their responsibility.

3.3. In the written opinion of Darius Urbonas, a Vice-Minister of the Interior, it is noted that the differentiation of the remuneration of mayors and deputy mayors is grounded on the differences in the scope of activity determined by the number of residents of a municipality. Although, under the Constitution and laws, all municipalities implement the same functions, in some of them the scope and complexity of functions are different. Therefore, the differentiation of the remuneration of mayors and deputy mayors is justified. The number of municipal residents is one of the most universal criteria when assessing the scope of activity of the municipality, as other criteria (for example, the amount of a municipal budget, the prevailing type of residential areas (cities, towns, villages)) would not be objective.

In the written opinion of Darius Urbonas, it is also noted that, while assessing, in a systematic manner, the legal acts regulating the activity of municipalities, the possibility to clarify and elaborate the differentiation of the amounts of remuneration of municipal mayors and deputy mayors should be considered.

3.4. In the written opinion of Roma Žakaitienė, the Director of the Association of Local Authorities in Lithuania, the attention is paid to the fact that, by means of the provisions of the Law on Local Self-Government, the activity of all municipalities is regulated in the same way, i.e. regardless of the number of residents in a municipality, its size or other criteria, the functions of the municipality are the same. Respectively, the same powers and responsibility are established for their mayors and deputy mayors. In addition, the mayors of the municipalities with a larger number of residents are provided for the possibility to have more deputy mayors: the mayors of the largest municipalities (whose municipal councils include 41 members) may have three deputy mayors, although the mayors of other municipalities have two or one deputy mayor(s) – it depends on the number of municipal residents.

According to Roma Žakaitienė, in the opinion of the representatives of most municipalities, it is necessary either to harmonise the coefficients of the positional salary applied to calculate the positional salary of the mayors and deputy mayors, or to leave the existing legal regulation because the differences between municipalities as a result of economic, social, and demographic situation are mainly determined by the circumstances beyond the control of mayors. Therefore, a further differentiation of their remuneration would be flawed.

The Constitutional Court

holds that:

I

The impugned and related legal regulation

4. In this constitutional justice case, the petitioner impugns the constitutionality of Item 5 of Section I of the Annex to the Law on the Remuneration of State Politicians and State Officials, insofar as this item provides that the remuneration of mayors and deputy mayors depends on the division of municipalities into two group according to the number of residents.

4.1. Although, in the operative part of its petition, the group of members of the Seimas, the petitioner, did not specify the wording of Item 5 of Section I of the Annex to the Law whose compliance with the Constitution it impugned, it is obvious from the petition that the petitioner had doubts concerning Item 5 of Section I of the Annex to the Law set out in the wording which was effective at the time of the submission of the application.

In this context, it should be noted that, in the Law Amending the Annex to the Republic of Lithuania’s Law on the Remuneration of State Politicians and State Officials (No VIII-1904), which was adopted by the Seimas on 21 April 2015 and which, inter alia, established the impugned legal regulation, and in subsequent amendments of the Law, with the exception of the Law Amending Article 2 of the Republic of Lithuania’s Law on the Remuneration of State Politicians and State Officials (No VIII-1904) and the Annex thereto, which was adopted by the Seimas on 29 June 2018, the constituent parts of the annex are referred to as “chapters” in the norms amending these parts. However, the term “section” is used in Paragraph 9 (wording of 8 December 2015) of Article 3 of the Law, which establishes the legal regulation of the positional salary of some state officials.

4.2. In view of the above, in the constitutional justice case at issue, the Constitutional Court will examine whether Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law is in conflict with the Constitution, insofar as this item provides that the remuneration of mayors and deputy mayors depends on the division of municipalities into two groups according to the number of residents.

5. On 29 August 2000, the Seimas adopted the Republic of Lithuania’s Law on the Remuneration of State Politicians, Judges, and State Officials, in which it established, inter alia, the amounts of the remuneration of state politicians and state officials not subject to the Law on State Service and the conditions for paying it (Article 1).

The Law on the Remuneration of State Politicians, Judges, and State Officials has been amended and/or supplemented on several occasions, inter alia, by the Law Amending the title and Articles 1, 2, 3, 4, 5, and 7 of the Republic of Lithuania’s Law on the Remuneration of State Politicians, Judges, and State Officials and the Annex Thereto, which was adopted by the Seimas on 6 November 2008: since the entry into force of this law, it is referred to as the Law on the Remuneration of State Politicians and State Officials.

6. Under Item 6 (wording of 3 June 2003) of Paragraph 1 of Article 2 of the Law, the amounts of the remuneration and the conditions for paying it as laid down in this law are applicable to mayors and deputy mayors who are attributed to state politicians. Also the Speaker of the Seimas, officials of the Seimas, members of the Seimas, the Prime Minister, ministers, and members of municipal councils fall into this category of persons from the point of view of the legal regulation of remuneration.

6.1. Paragraph 1 (wording of 6 November 2008) of Article 3 of the Law establishes the constituent parts of the remuneration of state politicians, thus, also municipal mayors and deputy mayors: their remuneration consists of a positional salary and additional pay for the length of service to the State of Lithuania.

6.2. Paragraph 1 (wording of 19 December 2008) and Paragraph 2 (wording of 19 April 2018) of Article 4 of the Law establish, inter alia, the procedure for calculation of one of the constituent parts – positional salary – of the remuneration of state politicians: it is calculated by multiplying the appropriate positional salary coefficient, set in the Annex to this Law, by the base amount of the positional salary, which is approved by the Seimas on the submission of the Government.

6.3. Under the legal regulation established in Paragraphs 1 and 3 (wording of 6 November 2008) of Article 5 of the Law, the additional pay for the length of service to the State of Lithuania, which comprises 3 percent of the positional salary of a state politician or a state official for every three years of service for the State of Lithuania; however, the amount of the additional pay must not exceed 30 percent of the positional salary.

7. As mentioned before, under Paragraph 2 (wording of 19 April 2018) of Article 4 of the Law, the positional salary coefficients applicable for calculating one of the constituent parts – positional salary – of the remuneration of state politicians are established in the Annex to the Law, whose Item 5 (wording of 21 April 2015) of Section I is impugned in the constitutional justice case at issue, insofar as it is specified by the petitioner.

7.1. Item 5 (wording of 21 April 2015) of Section I “Positional salaries of state politicians” of the Annex to the Law prescribes the following:

 

(In base amounts)

No

Title of position

Coefficient of positional salary

[...]

5.

Municipal mayors and deputy mayors

The municipal territory with

more than 100 000 residents

up to 100 000 residents

5.1.

Mayors

19

18

5.2.

Deputy mayors

16

15”

 

Thus, the coefficients of the positional salary established in Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law are applied to calculate the amount of the positional salary of municipal mayors and deputy mayors. Under the legal regulation prescribed in this item, the positional salary of the mayors of those municipalities that have more than 100 000 residents is calculated by multiplying the base amount of the positional salary by 19 and the positional salary of deputy mayors – by 16; and in the municipalities with up to 100 000 residents, the positional salary of mayors is calculated by multiplying the base amount by 18, and of deputy mayors – by 15.

Therefore, under the legal regulation established in Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law, the coefficients of the positional salary of municipal mayors and their deputies, which are applied to calculate the positional salary of municipal mayors and their deputies, vary depending on the size of a municipality according to the number of residents. In the aspect relevant in the constitutional justice case at issue, it should be noted that while establishing the coefficients of positional salary applied to calculate the amount of the positional salary of municipal mayors and deputy mayors, municipalities were divided into two groups according to the sole criterion – the number of municipal residents (i.e. depending on whether this number was more or less than 100 000 residents).

7.2. In the note to Section I of the Annex to to Law, it is specified that the coefficients to be applied to the positional salary of the municipal mayor and deputy mayors are established taking into account the number of municipal residents established according to the data from the record of persons who declared their place of residence and persons without residence, which are announced on the website of the manager of the Population Register of the Republic of Lithuania.

In the context of the constitutional justice case at issue, it should be noted that, according to the data of the Population Register of the Republic of Lithuania published on 1 January 2019 on the website of SE Centre of Registers, 5 municipalities had more than 100 000 residents: Vilnius City, Vilnius District, Kaunas City, Klaipėda City, and Šiauliai City. It means that, under the legal regulation established in Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law, in 5 municipalities, the coefficient to calculate the positional salary was established at 19 for municipal mayors and 16 for deputy mayors, and in 55 municipalities, the coefficient to calculate the positional salary was established at 18 for municipal mayors and 15 for deputy mayors.

7.3. While considering this constitutional justice case, it is relevant to reveal certain aspects of the development of the legal regulation establishing the coefficients of the positional salary of municipal mayors and deputy mayors.

7.3.1. Upon the adoption of the Law on the Remuneration of State Politicians, Judges, and State Officials by the Seimas on 29 August 2000, Item 6 of Section I of the Annex thereto established the following:

(In MMW amounts)

No

Title of position

Coefficient of positional salary

[...]

6.

Municipal mayors and council officials

the municipal territory with

more than 500 000 residents

more than 100 000 residents

more than 50 000 residents

50 000 residents and less

6.1.

mayors

12

11

10

8.5

6.2.

deputy mayors

10.5

9.8

8.8

7.7”

 

In the aspect relevant in the constitutional justice case at issue, it should be noted that, under Item 6 of Section I of the Annex to the Law on the Remuneration of State Politicians, Judges, and State Officials, the coefficients of the positional salary, which were applied to calculate the positional salary of municipal mayors and their deputies, varied depending on the size of a municipality according to the number of residents, insofar as municipalities were divided into four groups: municipalities with 50 000 residents and less; municipalities with more than 50 000 residents but less than 100 000 residents; municipalities with more than 100 000 residents but less than 500 000 residents; and municipalities with more than 500 000 residents.

7.3.2. After Section I of the Annex to the Law on the Remuneration of State Politicians, Judges, and State Officials was set out in a new wording by the Law Amending Article 2 of the Republic of Lithuania’s Law on the Remuneration of State Politicians, Judges, and State Officials, Declaring Paragraph 1 of Article 7 as No Longer Valid and Amending the Annex to the Law, the former legal regulation established in Item 6 of Section I of the Annex to the Law on the Remuneration of State Politicians, Judges, and State Officials was consolidated in Item 5 of Section 1 (wording of 28 January 2003) of the Annex; this Item 5 was amended by the Law Amending Article 2 of the Republic of Lithuania’s Law on the Remuneration of State Politicians, Judges, and State Officials and Sections I and IV of the Annex Thereto, which was adopted by the Seimas on 18 December 2003 and came into force on 1 January 2004, and it was set out as follows:

 

(In MMW amounts)

5.

Municipal mayors and deputy mayors

The municipal territory with

more than 100 000 residents

up to 100 000 residents

5.1.

Mayors

12.2

10.5

5.2.

Deputy mayors

10.5

8.8”

 

Therefore, under Item 5 (wording of 18 December 2003) of Section I the Law on the Remuneration of State Politicians, Judges, and State Officials, the coefficients of the positional salary, which were applied to calculate the positional salary of municipal mayors and their deputies, were differentiated by dividing municipalities, according to the number of residents, into two groups instead of four groups: the municipalities with more than 100 000 residents and the municipalities with up to 100 000 residents, i.e. from the aspect of the division of municipalities into groups, the legal regulation was established which was identical to the legal regulation impugned in the constitutional justice case at issue.

7.3.3. Item 5 (wording of 18 December 2003) of Section I of the Annex to the Law has been amended on more than one occasion, inter alia, by the Law Amending the Annex to the Law on the Remuneration of State Politicians and State Officials (No VIII-1904), which was adopted by the Seimas on 21 April 2015 and consolidated the impugned legal regulation, and, among other things, increasing the coefficients of the positional salary applied to calculate the positional salary of the mayors and deputy mayors; the provision under which the coefficients of positional salary applied to calculate the amount of the positional salary of municipal mayors and deputy mayors are differentiated by dividing municipalities into two groups according to the sole criterion – the number of municipal residents, which is more or less than 100 000 residents, was not amended.

8. The provisions of the Law on Local Self-Government (wording of 15 September 2008) linked to the legal status of mayors and deputy mayors and their functions are also relevant in the constitutional justice case at issue.

8.1. The following provisions of the Law on Local Self-Government (wording of 15 September 2008) should be mentioned:

the mayor is a directly elected member of a municipal council heading the municipal council; the mayor is the head of the municipality (Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3));

the municipal council shall, for the duration of its powers, appoint from among the members of the council one or several deputy mayors on the recommendation of the mayor, depending on the size of the municipality; the municipal council may, on the recommendation of the mayor, decide that a deputy mayor carries out the duties on a voluntary basis (Paragraph 1 (wording of 26 June 2014) of Article 19);

the maximum possible number of deputy mayors of a municipality shall be fixed taking into consideration the number of the members of the municipal council; not more than three positions of deputy mayor of a municipality may be established in the municipality the council of which consists of 41 and more members of the council; not more than two positions of deputy mayor of a municipality may be established in the municipality the council of which consists of 27 –31 members of the council; and not more than one position of deputy mayor may be established in other municipalities (Paragraph 1 (wording of 26 June 2014) of Article 19);

the mayor, inter alia, shall plan activities of the municipal council, set and draw up agendas of sittings of the municipal council and present drafts of decisions of the municipal council, convene 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 rules of conduct, 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 guide the work of the secretariat (if such is formed); shall control and supervise activities of heads of municipal institutions, establishments and undertakings of public administration, how they implement laws, decisions of the Government and the municipal council; the mayor shall take care that adequate conditions and opportunities are provided for inclusion of local community members in the management of local affairs (Items 1 and 2, Item 8 (wording of 26 June 2014), and Item 11 of Paragraph 2 and Item 3 of Paragraph 3 of Article 20);

a deputy mayor shall carry out functions and assignments established by the mayor; in the event the mayor cannot carry out his/her duties, a deputy mayor shall exercise all duties of the mayor, except for the powers provided for in the law (Paragraph 8 (wording of 30 June 2018) of Article 20)).

8.2. To sum up the provisions of Item 1 (wording of 26 June 2014) of Paragraph 3 of Article 3, Paragraph 1 (wording of 26 June 2014) of Article 19, Items 1, 2, 8, and 11 of Paragraph 2, Item 3 of Paragraph 3, and Paragraph 8 of Article 20 (with the amendments of 30 June 2018) of the Law on Local Self-Government, it should be held that:

the mayor is a state politician, a member of a municipal council, who is directly elected for the term of office of the municipal council; the mayor, inter alia, heads the municipal council, plans and organises its activity, represents the municipality in the relationships with other subjects, performs the functions of control and supervision of the subjects related with the municipality, and takes care of community affairs;

a deputy mayor is a state politician, a member of the municipal council, who is appointed to office on the recommendation of the mayor; in the event the mayor cannot carry out his/her duties, a deputy mayor exercises all duties of the mayor, except for the powers provided for in the law, as well as carries out functions and assignments established by the mayor;

the number of deputy mayors depends on the number of the members of a municipal council: a mayor may have between one and three deputy mayors depending on the size of the municipality.

8.3. In this context, it should be stated that the number of the members of a municipal council is regulated in Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Elections to Municipal Councils (wording of 26 June 2014), under which 51 members of the municipal council are elected in municipalities with more than 500 000 residents; 41 members of the municipal council – in municipalities with a population between 300 000 and 500 000 residents; 31 members of the municipal council – in municipalities with a population between 100 000 and 300 000 residents; 27 members of the municipal council – in municipalities with a population between 50 000 and 100 000 residents; 25 members of the municipal council – in municipalities with a population between 20 000 and 50 000 residents; 21 members of the municipal council – in municipalities with a population between 10 000 and 20 000 residents; 17 members of the municipal council – in municipalities with a population between 5 000 and 10 000 residents; and 15 members of the municipal council – in municipalities with a population of less than 5 000 residents.

Therefore, as it is obvious from the legal regulation consolidated in Paragraph 1 of Article 10 of the Republic of Lithuania’s Law on Elections to Municipal Councils (wording of 26 June 2014), the size (number of the members) of the municipal council depends on the number of municipal residents. Attention should be drawn to the fact that, in this law, when establishing the number of the members of a municipal council, municipalities are divided into eight groups according to the number of residents; the municipalities having more than 500 000 residents fall under the largest group, and the municipalities with less than 5 000 residents fall under the smallest group.

It should be mentioned that under Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government, as interpreted in conjunction with Paragraph 1 of Article 10 of the Law on Elections to Municipal Councils (wording of 26 June 2014), the mayors of the municipalities with 300 000 and more residents may have 3 deputy mayors, the mayors of the municipalities with 50 000 and more residents may have 2 deputy mayors, and the mayors of the municipalities with less than 50 000 residents may have one deputy mayor.

8.4. While interpreting the impugned legal regulation consolidated in Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law in the context of the provisions of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government and Paragraph 1 of Article 10 of the Law on Elections to Municipal Councils (wording of 26 June 2014), it should be noted that for the municipal mayors who are heads of municipal councils of a different size (from 15 to 25 members) and who have the same number of deputy mayors (one), the same coefficient of the positional salary is applied to calculate the amount of their positional salary, although, according to the competence assigned in the Law on Local Self-Government, the mayors, inter alia, organise and coordinate the work of municipal councils of varying sizes.

II

The provisions of the Constitution and the official constitutional doctrine

9. In this constitutional justice case, the Constitutional Court is investigating the compliance of the legal regulation governing the remuneration of municipal mayors and deputy mayors with the provision “Everyone [...] shall have the right [...] to receive fair pay for work” of Paragraph 1 of Article 48 of the Constitution.

10. When interpreting Paragraph 1 of Article 48 of the Constitution, the Constitutional Court has held that, under the Constitution, a person who has completed a commissioned task has the right to demand that the whole work remuneration (remuneration) due according to legal acts be paid to him/her and that it be paid in due time (inter alia, the Constitutional Court’s rulings of 14 February 2011, 30 April 2013, and 22 December 2014).

The Constitutional Court has also noted that the right to receive fair pay for work, which is consolidated in Paragraph 1 of Article 48 of the Constitution, is related to the constitutional principle of justice and means the right of a person to receive the payment for work that would be fair in view of, inter alia, the specificity of the work, the complexity and scope of work functions, the responsibility for carrying out those functions, the particularities of the position held, and the professional level and qualifications of the person (the Constitutional Court’s ruling of 1 July 2013). Under the Constitution, there is no tolerance for such a legal regulation that would establish the unified or substantially the same amount of remuneration for persons remunerated from the funds of the state or municipal budget if they hold positions different in terms of the complexity and scope of the performed functions and responsibility and have a different professional level and different qualifications (inter alia, the Constitutional Court’s rulings of 1 July 2013, 22 December 2014, and 27 October 2016 (No KT29-N15/2016).

The Constitutional Court has held on more than one occasion that the right to receive fair pay for work, which is consolidated in Paragraph 1 of Article 48 of the Constitution, is inseparable from the constitutional principles of the equality of rights and a state under the rule of law.

11. The Constitutional Court has also noted that the constitutional requirements of fair pay for work, which are to be implemented for state politicians, judges, state officials, and servicemen, do not differ essentially from those that are to be applied to the fair pay for work of state servants (the Constitutional Court’s rulings of 20 March 2007 and 30 April 2013). In view of the above, the following provisions of the official constitutional doctrine linked to remuneration of state servants (formulated, inter alia, in the Constitutional Court’s rulings of 13 December 2004, 11 December 2009, and 29 September 2015) should be mentioned:

clear criteria on the basis of which the amount of the pay for work (work remuneration) is established in regard to state servants are an essential element of the right to receive fair pay for work;

the legislature has broad discretion in choosing and consolidating in laws a certain system of payment for the work of state servants; it is allowed to establish a system with a fixed-size salary, or a system with both minimum and maximum salaries for particular positions, or a system where the remuneration for work is regulated by applying a coefficient with a certain established value based on a certain established unit; such remuneration may also consist of several elements;

when regulating the relations in connection with the remuneration of state servants, the legislature must observe the right of a person to receive fair pay for work, which stems from Paragraph 1 of Article 48 of the Constitution; this constitutional right must be guaranteed for a state servant not to a lesser extent than for other employees; however, due to the type of state service as a specific work activity, the implementation of the said right may have certain particularities; the possibility to legally regulate the relations of the remuneration of state servants in a different manner than the relations of the remuneration of other persons is to be applied mutatis mutandis to the legal regulation governing the remuneration of state politicians, judges, state officials, and servicemen.

12. In the Constitutional Court’s ruling of 30 April 2013, in which it was decided on the remuneration for municipal mayors and their deputies for overtime work and work during days off or on holidays, it was noted that the right to receive fair pay for work, which is guaranteed in Paragraph 1 of Article 48 of the Constitution, must be ensured, inter alia, by regulating the activity of state politicians and municipal politicians. In the above-mentioned ruling, it was also noted that:

when establishing the legal regulation governing the activity of state and municipal politicians, the legislature must take into account, inter alia, the specific nature of this activity; the specific nature of the said activity is determined by the following aspects stemming from the Constitution: the function of politicians to represent the interests of the People, the state, or residents of a certain municipality; the powers of politicians to decide questions related to the formation, implementation, and control over the implementation of policies pursued by the state or those pursued in certain spheres of state governance or in spheres assigned to municipal competence; as well as the related requirements for accountability to the public and publicity, the duties of representation, and other duties;

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 establishing by means of a law the fair amount of remuneration for their work; thus, the specificity of the activity of state politicians or municipal politicians determines 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; therefore, the legal regulation governing their remuneration may be established that would be different compared with other working persons;

while ensuring the right of state politicians or municipal politicians to receive fair pay for work, the legislature must, under the Constitution, establish such a legal regulation under which the amount of remuneration established for state and municipal politicians would correspond to the specificity of the activity performed by these persons and would not create preconditions for unreasonably excluding, by establishing the amount of remuneration, a certain group of persons falling into one category from the point of view of the legal regulation of remuneration; when the amount of the remuneration of state and municipal politicians is regulated by means of a law, the amount of remuneration may be differentiated for individual groups of persons falling into one category from the point of view of the legal regulation of remuneration; however, this differentiation must be based on certain clear and objective criteria, such as the nature, complexity, significance, and scope of the functions assigned to persons belonging to individual groups within this category and their responsibility for carrying out these functions; this also applies to the differentiation of the amount of remuneration for persons belonging to the same group of persons from the point of view of the legal regulation of remuneration: the amount of remuneration may be differentiated by means of a legal regulation, but this differentiation must be based on clear and objective criteria, which reflect the particularities of the respective activity of persons belonging to the group in question.

13. In the context of the constitutional justice case at issue, the provision “Everyone […] shall have the right […] to receive fair pay for work” of Paragraph 1 of Article 48 of the Constitution should be interpreted in conjunction with Paragraph 3 of Article 119 of the Constitution. Under Paragraph 3 of Article 119 of the Constitution, the procedure for the organisation and activities of self-government institutions is established by law.

It should be noted that, under Paragraph 3 of Article 119 of the Constitution, while regulating the procedure for the organisation and activities of municipal councils as political representative self-government institutions, the legislature also has the discretion to establish the legal regulation governing the organisation of the work and the system of the remuneration of municipal council members, who are elected, inter alia, to organise the activity of the respective municipal councils, implement the related powers, and represent the respective municipalities (as, for instance, persons holding the office of mayor or deputy mayor as provided for by law). When the amount of the remuneration of mayors (deputy mayors) is established by means of a legal regulation, regard must be paid to the imperative of fair pay for work, as laid down in the Constitution, inter alia, Paragraph 1 of Article 48 thereof, as well as to the circumstances leading to the necessity to differentiate the amount of this remuneration.

13.1. The Constitutional Court has noted that, in addition to the number of residents living in their territory, municipalities can, inter alia, considerably vary in their size and the scope of issues assigned to their competence due to the significance and complexity of these issues; thus, the scope of the activity of municipal politicians and the extent of their responsibility may also vary due to the particularities of the municipality concerned; therefore, if the amount of the remuneration of mayors (deputy mayors) is differentiated by means of a legal regulation, account must also be taken of this specific nature of their activity (the Constitutional Court’s ruling of 30 April 2013).

13.2. In the context of this constitutional justice case, it should be noted that the imperative of fair pay for work, as consolidated in Paragraph 1 of Article 48 of the Constitution, gives rise to the requirement for the legislature, when differentiating the amount of the remuneration of the members of municipal councils, who are elected, inter alia, to organise the activity of the respective municipal councils, implement the related powers, and represent the respective municipalities (as, for instance, persons holding the office of mayor or deputy mayor as provided for by law), to draw on the clear and objective criteria laid down by means of a law, which constitute an essential element of the right to receive fair pay for work. Regulating the system of remuneration paid to these persons, the legislature has broad discretion to choose and lay down, in laws, the criteria for differentiating the amount of their remuneration. The amount of the remuneration of municipal mayors and deputy mayors may be differentiated in view of the number of municipal residents; however, the differentiation of the amount of the said remuneration according to this sole criterion may not violate the constitutional imperative of fair pay for work. In exercising its discretion and taking into account the particularities and differences that exist among municipalities and have influence on the scope of the activity of mayors and deputy mayors and on the extent of their responsibility, the legislature may also provide for other objective criteria determining the amount of the remuneration of municipal mayors and deputy mayors.

III

The assessment of the compliance of Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law on the Remuneration of State Politicians and State Officials
with the Constitution

14. As mentioned before, in the constitutional justice case at issue, the Constitutional Court is investigating the compliance of Item 5 of Section I of the Annex to the Law, insofar as, under this item, the remuneration of mayors and deputy mayors depends on the division of municipalities into two groups according to the number of residents, with the provision “Everyone [...] shall have the right [...] to receive fair pay for work” of Paragraph 1 of Article 48 of the Constitution.

15. According to the group of members of the Seimas, the petitioner, such a legal regulation is in conflict with the Constitution, as Lithuanian municipalities are very different not only according to the number of residents but also due to other particularities: in one of them, the capital of the State is located, in others, a few cities, in some of them, there are seaside resorts, in some of which there are border areas, etc. thus, the establishment of the said sole criterion is insufficiently objective, since the mayors and deputy mayors of different municipalities face different challenges in their work activity. In addition, it is not clear why only one population threshold – 100 000 residents – is chosen.

16. It has been mentioned that the right, as consolidated in Paragraph 1 of Article 48 of the Constitution, to receive fair pay for work means the right of a person to receive such remuneration that would be fair in view of, inter alia, the nature of the performed work, the complexity and scope of work functions, responsibility for carrying out these functions, the particularities of the position held. It has also been mentioned that, under Paragraph 3 of Article 119 of the Constitution, the legislature also has the discretion to establish the legal regulation governing the organisation of the work and the system of the remuneration of municipal council members, who are elected, inter alia, to organise the activity of the respective municipal councils, implement the related powers, and represent the respective municipalities (as, for instance, persons holding the office of mayor or deputy mayor as provided for by law); when the amount of the remuneration of mayors (deputy mayors) is established by means of a legal regulation, regard must be paid to the imperative of fair pay for work, as laid down in the Constitution, inter alia, Paragraph 1 of Article 48 thereof.

It has also been mentioned that clear criteria on the basis of which the amount of the pay for work (work remuneration) is established in regard to state servants are an essential element of the right to receive fair pay for work, and they must be established by law; the imperative of fair pay for work, as consolidated in Paragraph 1 of Article 48 of the Constitution, gives rise to the requirement for the legislature, when differentiating the amount of the remuneration of the members of municipal councils, who are elected, inter alia, to organise the activity of the respective municipal councils, implement the related powers, and represent the respective municipalities (as, for instance, persons holding the office of mayor or deputy mayor as provided for by law), to draw on the clear and objective criteria laid down by means of a law; the amount of the remuneration of municipal mayors and deputy mayors may be differentiated solely in view of the number of municipal residents; however, the differentiation of the amount of the said remuneration according to this sole criterion may not violate the constitutional imperative of fair pay for work.

Thus, under the Constitution, inter alia, Paragraph 1 of Article 48 thereof, exercising its discretion granted under Paragraph 3 of Article 119 of the Constitution to establish the system of remuneration paid to the members of municipal councils, who are elected, inter alia, to organise the activity of the respective municipal councils, implement the related powers, and represent the respective municipalities (as, for instance, persons holding the office of mayor or deputy mayor as provided for by law), inter alia, to regulate the amount of their remuneration, the legislature is not allowed to establish such a legal regulation under which the amount of the remuneration of municipal mayors (deputy mayors) would be the same despite the fact that the complexity of their functions, the scope of their activity, the nature of their work, and the extent of their responsibility for carrying out the said functions considerably differ due to the particularities of the municipalities concerned, inter alia, differences in their size and the number of their residents, as well as their legal status.

17. It has been mentioned that Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law establishes the coefficients of positional salary applied to calculate the amount of the positional salary of municipal mayors and deputy mayors, which differ depending on the size of the municipality according to the number of residents, having divided municipalities into two groups according to the sole criterion – the number of municipal residents, which is more or less than 100 000 residents. It has also been mentioned that, under the legal regulation established in Item 5 (wording of 21 April 2015) of Section 1 of the Annex to the Law, at present, in 5 municipalities that have more than 100 000 residents, the coefficient to calculate the positional salary was established at 19 for mayors and 16 for deputy mayors; whereas, in the remaining 55 municipalities, the coefficient to calculate the positional salary was fixed at 18 for mayors and 15 for deputy mayors.

18. In assessing the compliance of Item 5 of Section I of the Annex to the Law with the provision “Everyone [...] shall have the right [...] to receive fair pay for work” of Paragraph 1 of Article 48 of the Constitution, it should be noted that the impugned legal regulation created the preconditions for the situation in which the same coefficient of the positional salary was applied to calculate the positional salary for the mayors and deputy mayors of particular municipalities falling within the same group, although these municipalities considerably differ from one another, inter alia, in their size, the number of their residents, or other particularities determining the different scope of the activity performed by the respective mayors and deputy mayors and the extent of their responsibility for carrying out the assigned functions.

In addition, as mentioned before, under the impugned legal regulation consolidated in Item 5 (wording of 21 April 2015) of Section 1 of the Annex to the Law, as interpreted in the context of the provisions of Paragraph 1 (wording of 26 June 2014) of Article 19 of the Law on Local Self-Government and Paragraph 1 of Article 10 of the Law on Elections to Municipal Councils (wording of 26 June 2014), for the municipal mayors who are heads of the municipal councils of a different size (from 15 to 25 members) and who have the same number of deputy mayors (one), the same coefficient of the positional salary is applied to calculate the amount of their positional salary. It should be noted that under such a legal regulation the situation has arisen that the mayors of most of the 55 municipalities falling under the second group (according to the data of the Population Register of the Republic of Lithuania published on the website of SE Centre of Registers, on 1 January 2019, 48 municipalities had less than 50 000 residents) are heads of the municipal councils of a different size (from 15 to 25 members) and have only one deputy. Thus, contrary to what the representative of the party concerned states, in this aspect, the scope of the activity of such mayors and the extent of the responsibility for carrying out the said functions are also different, although, under the impugned legal regulation, the same coefficient of the positional salary is applied to calculate the amount of their positional salary.

Therefore, the legal regulation consolidated in Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law established the equal coefficient of the positional salary applied to calculate the positional salary for the mayors and deputy mayors of the municipalities, which are different according to the number of residents, whose scope of the activity performed and extent of responsibility (inter alia, when heading the municipal councils of different sizes) differ. Such differentiation of the coefficients of the positional salary of municipal mayors and deputy mayors, insofar as municipalities were divided into two groups based on the sole criterion – the number of municipal residents (either less or more than 100 000 residents), was insufficient in order to comply with the requirements stemming from the constitutional imperative of fair pay for work.

19. It should be held that, by having established in Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law that the positional salary of municipal mayors and deputy mayors is calculated according to the coefficient established by dividing municipalities into two groups according to the sole criterion – the number of municipal residents, which is more or less than 100 000 residents, the legislature did not comply with the requirement, stemming from the Constitution, inter alia, Paragraph 1 of Article 48 thereof, not to establish such a legal regulation under which the amount of the remuneration of municipal mayors and deputy mayors would be the same despite the fact that the complexity of their functions, the scope of their activity, the nature of their work, and the extent of their responsibility for carrying out the said functions differ due to the particularities of the municipalities concerned. Thus,by means of the legal regulation laid down in Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law, the legislature disregarded the imperative of fair pay for work, which is consolidated in Paragraph 1 of Article 48 of the Constitution.

20. Taking into account the foregoing arguments, the conclusion should be made that Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law is in conflict with the provision “Everyone [...] shall have the right [...] to receive fair pay for work” of Paragraph 1 of Article 48 of the Constitution.

IV

On the official publication of this ruling

21. By this ruling, the Constitutional Court declared Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law, which establishes the coefficients of the positional salary applied to calculate the positional salary of the mayors and deputy mayors, to be in conflict with the Constitution.

Under Paragraph 1 of Article 107 of the Constitution, a legal act (or part thereof) may not be applied from the day of the official publication of the decision of the Constitutional Court that the legal act in question (or part thereof) is in conflict with the Constitution.

Upon the official publication of this ruling of the Constitutional Court, from the day of its official publication, Item 5 (wording of 21 April 2015) of Section I of the Annex to the Law may not be applied. Thus, if the Constitutional Court’s ruling in this case were officially published immediately after its public pronouncement at the hearing of the Constitutional Court, the legal relations connected with the remuneration of municipal mayors and deputy mayors would remain unregulated and legal uncertainty would be created; this, in principle, would disturb the payment of remuneration to municipal mayors and deputy mayors.

22. Under the Constitution, having assessed, inter alia, what legal situation might arise after a ruling of the Constitutional Court becomes effective, the Constitutional Court may establish the date of the official publication of that ruling; the Constitutional Court may postpone the official publication of its ruling if this is necessary to give the legislature time to remove the lacunae legis that would occur if the relevant ruling of the Constitutional Court were officially published immediately after its public pronouncement at the hearing of the Constitutional Court and if such lacunae legis constituted the preconditions for denying in essence certain values defended and protected by the Constitution. The postponement of the official publication of a ruling of the Constitutional Court is a precondition stemming from the Constitution in order to avoid certain consequences unfavourable to society and the state, as well as to human rights and freedoms, that might arise if the relevant ruling of the Constitutional Court were officially published immediately after it is pronounced publicly at the hearing of the Constitutional Court and if it became effective on the day of its official publication (inter alia, the Constitutional Court’s rulings of 23 August 2005 and 16 April 2019).

Thus, the Constitutional Court enjoys the constitutional powers 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 higher-ranking legal acts, inter alia (and, first of all) the Constitution, where, in the case the Constitutional Court’s ruling after its adoption was immediately officially published, the 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 (inter alia, Constitutional Court’s rulings of 23 August 2005, 9 June 2011, and 6 February 2012).

23. It should be noted that under Paragraph 3 of Article 84 (wording of 14 May 2015) of the Law on the Constitutional Court, taking into account the specific circumstances of a particular case, the Constitutional Court may set a later date for the publication of its ruling by which a certain legal act (part thereof) is declared to be in conflict with the Constitution or laws.

24. As mentioned before, upon the official publication of this ruling of the Constitutional Court, from the day of its official publication, the legal relations connected with the remuneration of municipal mayors and deputy mayors would remain unregulated and legal uncertainty would be created; this, in principle, would disturb the payment of remuneration to municipal mayors and deputy mayors. In order to remove the said legal uncertainty, a certain period of time is necessary for the legislature.

In view of this, this ruling of the Constitutional Court is to be officially published in the Register of Legal Acts on 2 January 2020.

25. It should also be noted that, as the Constitutional Court has held on more than one occasion, legal certainty, legal security, and the protection of legitimate expectations are inseparable elements of the principle of a state under the rule of law. The constitutional principles of legal certainty, legal security, and the protection of legitimate expectations imply the obligation of the state to ensure the certainty and stability of any legal regulation and to respect legitimate interests and legitimate expectations; if legal certainty, legal security, or the protection of legitimate expectations were not ensured, the trust of a person in the state and law would not be ensured, either (inter alia, the Constitutional Court’s rulings of 4 March 2003 and 24 December 2008 and its decision of 20 April 2010).

In the context of this constitutional justice case, it should be noted that the constitutional principles of the protection of legitimate expectations, legal certainty, and legal security imply that, in implementing this ruling of the Constitutional Court, with respect to the municipal mayors elected, as well as the deputy mayors appointed, for the term of office of the municipal councils elected during the elections to municipal councils in 2019, the legislature is not allowed to provide, by means of a law, for remuneration lower than that established for them at the beginning of their term of office.

Conforming to Articles 102 and 105 of the Constitution of the Republic of Lithuania and Articles 1, 53, 531, 54, 55, 56, and 84 of the Law on the Constitutional Court of the Republic of Lithuania, the Constitutional Court of the Republic of Lithuania gives the following

ruling:

1. To recognise that Item 5 (wording of 21 April 2015; Register of Legal Acts, 28-04-2015, No 06452) of Section I of the Annex to the Republic of Lithuania’s Law on the Remuneration of State Politicians and State Officials is in conflict with the provision “Everyone [...] shall have the right [...] to receive fair pay for work” of Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania.

2. This ruling of the Constitutional Court of the Republic of Lithuania must be officially published in the Register of Legal Acts on 02 January 2020.

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

Justices of the Constitutional Court                           Elvyra Baltutytė
                                                                                               Gintaras Goda
                                                                                               Vytautas Greičius
                                                                                               Danutė Jočienė
                                                                                               Gediminas Mesonis
                                                                                               Vytas Milius
                                                                                               Daiva Petrylaitė
                                                                                               Janina Stripeikienė
                                                                                               Dainius Žalimas