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On declaring competitions for the positions of the heads of theatres and concert establishments no longer valid

 

Case no 6/2018

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA
IN THE NAME OF THE REPUBLIC OF LITHUANIA

RULING

ON THE COMPLIANCE OF PARAGRAPH 3 OF ARTICLE 3 OF THE LAW AMENDING ARTICLES 11 AND 13 OF THE REPUBLIC OF LITHUANIA’S LAW ON PROFESSIONAL PERFORMING ARTS (NO IX-2257) WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

25 June 2019, no KT18-N9/2019
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 the Court’s hearing, on 12 June 2019, considered, under written procedure, constitutional justice case no 6/2018 subsequent to the petition (no 1B-8/2018) of the Vilnius Regional Court (Vilniaus apygardos teismas), the petitioner, requesting an investigation into whether Paragraph 3 of Article 3 of the Law Amending Articles 11 and 13 of the Republic of Lithuania’s Law on Professional Performing Arts (No IX-2257), insofar as, under this paragraph, the competition for the position of the heads of theatres and concert establishments which had been organised prior to coming into force of this law is considered invalid if the winner of the competition had been established but had not started to hold the office, is in conflict with the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

The arguments of the petitioner

1. The Vilnius Regional Court, the petitioner, was considering the civil case subsequent to an appeal of the applicant concerning the decision of the District Court of Vilnius City rejecting the action of the applicant for annulment of the order (no P-101) of the Minister of Culture of the Republic of Lithuania of 3 July 2017 on the recognition of the employment contract as terminated and reinstatement of the applicant in the position of the General Manager of the Lithuanian National Opera and Ballet Theatre (hereinafter also referred to as the LNOBT).

In the civil case, it was established that, on 15 September 2016, the applicant won the competition for the position of the general manager of the LNOBT and was appointed to office by the order (no P-145) of the Minister of Culture of 8 November 2016 for a period of five years from 19 July 2017 to 19 July 2022. On 8 November 2016, an employment contract was concluded with the applicant, where the parties agreed that it would enter into force on 17 July 2017 and the applicant would start working on 19 July 2017. However, by the order (no P-84) of the Minister of Culture of 10 May 2017, his order (no P-145) of 8 November 2016 was declared as no longer valid.

By order (no P-101) of the Minister of Culture of 3 July 2017, pursuant to Item 7 of Article 53 of the Labour Code of the Republic of Lithuania, which was adopted on 14 September 2016, and Paragraph 3 of Article 3 of the Law Amending Articles 11 and 13 of the Law on Professional Performing Arts (No IX-2257) (hereinafter also referred to as the Law) which was adopted on 11 May 2017, the above-mentioned employment contract, which was concluded on 8 November 2016, was recognised as terminated and, pursuant to Paragraph 3 of Article 42 of the Labour Code, the LNOBT was obliged to pay compensation to the applicant for a period of one month of service.

Having held that there was a sufficient ground for doubting the constitutionality of the provisions of Paragraph 3 of Article 3 of the Law relevant in the considered civil case, the Vilnius Regional Court suspended the consideration of this case and applied to the Constitutional Court.

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

2.1. 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, to be employed and work under an employment contract in the positions for which they had won the competition. According to the provisions of Paragraph 3 of Article 3 of the Law, the validity of the competition is linked to the fact whether the person took up the position, although, in the opinion of the petitioner, winning of the competition creates subjective rights and creates preconditions for the occurrence of the employment relationships. By declaring the competition invalid after the competition results had been determined and an employment contract had been concluded with the winner of this competition, the rights acquired by the winner of the competition are restricted. Therefore, such a provision of the Law potentially violates the constitutional principle of a state under the rule of law.

2.2. In the opinion of the petitioner, in Paragraph 3 of Article 3 of the Law, the legislature defined the legal consequences of the legal relationships of the competition that had already expired. The Constitutional Court has held on more than one occasion that the constitutional principle of a state under the rule of law implies various requirements for the legislature and other law-making subjects, inter alia, the fact that the effect of legal acts is prospective, the retroactive effect of legal acts is not permitted (lex retro non agit), unless the situation of a subject of legal relations would be alleviated without prejudice to other subjects of legal relations; it is not allowed to violate the legitimate interests and legitimate expectations of a person by amendments to a legal regulation, since the persons who acquired certain rights under a law have the right to reasonably expect that these rights will be maintained and implemented for the established time period. The principle of lex retro non agit is not absolute in civil relationships; however, the application of an exception to such a principle must be proportionate and based on a significant public interest. Therefore, in the opinion of the petitioner, after the already established civil relationships resulting from the public competition were regulated by the legislature in a different manner by means of the Law, the legislature could, also in this respect, have violated the constitutional principle of a state under the rule of law.

II

The arguments of the representative of the party concerned

3. In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from Vytautas Juozapaitis, a 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 is based on the following arguments.

3.1. The impugned provision of the Law, under which 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 to be invalid and must be organised anew if the winner of the competition has been determined but has not taken up the respective office, does not violate the rights of the person who has won the competition, as while considering the draft Law account was taken of the fact that no actual employment relationships occurred since the winner of the competition had not started holding the position. Under Paragraph 3 of Article 42 of the Labour Code (which came into force on 1 July 2017, as the Law whose provision is impugned), the employment contract enters into force when the employee begins work; thus, if an employment contract was concluded but did not enter into force without any fault on the part of the employee, the employer must pay the employee compensation. In addition, the legal regulation impugned in this case does not preclude such persons from seeking, in accordance with the procedure established by laws, that the subjects that have organised the competition would compensate damages.

3.2. In the opinion of the representative of the party concerned, the impugned provision of the Law does not provide for the retroactive effect of the law. The legal relationships of employment shall be deemed to begin upon the entry into force of an employment contract and before taking up office, the person must meet the qualification requirements effective on the day of the entry into force of the employment contract. The Law established an essentially new legal regulation, i.e. the requirement of good repute was established (there was no such a requirement in the former legal regulation) for the heads of national, state, or municipal theatres or concert establishments, as well as candidates for these positions. Therefore, in seeking to ensure that, upon the entry into force of this law, only those persons who meet the criteria of good repute would take up office as the heads of national, state, or municipal theatres or concert establishments, the legislature established such a regulation under which competitions organised for the specified positions prior to the entry into force of this law are considered to be invalid and must be organised anew if the winners of these competition have not been determined and (or) have not taken up the respective office. If the competition was concluded before the entry into force of the impugned legal regulation, the person recruiting the successful candidate does not have competence to assess whether the winner meets new criteria of good repute established in the Law. Therefore, the candidates must be reassessed and this may only be carried out after a new competition has been organised.

3.3. National, state, or municipal theatres or concert establishments are public legal persons whose founder or owner is the state or municipality. Higher requirements may be established for the heads of such institutions, in order to ensure public interest and the quality of the management of these institutions. The impugned legal regulation aims at ensuring that, in the context of new requirements, persons whose conformity to these requirements is not verified in accordance with the procedures laid down by legislation would not take up office as the heads of national, state or municipal theatres or concert establishments.

3.4. Under Paragraph 5 of Article 3 of the Law, the first term of office of the head of a national, state, or municipal theatre or concert establishment begins to be counted from the day he/she wins the competition, which took place after the entry into force of the impugned Law (on 1 July 2017); thus, the impugned provision of Paragraph 3 of Article 3 of the Law was aimed at avoiding a flawed situation in which a person who won a competition before the entry into force of this law and took up his position after the entry into force of that law would actually be able to hold the same position for three consecutive terms of office. As a result of the annulment of the competition, the impugned legal regulation did not prevent the participants from obtaining compensation from the person who organised the competition and from participating in the competition organised anew.

III

The material received in the case

4. In the course of the preparation of the case for the hearing of the Constitutional Court, written opinions were received from Jurgita Paužaitė-Kulvinskienė, the Director of the Law Institute of Lithuania, and Prof. Dr. Tomas Davulis, the Dean of the Faculty of Law of Vilnius University.

4.1. In the written opinion of Jurgita Paužaitė-Kulvinskienė, the Director of the Law Institute of Lithuania, it is noted that the impugned legal regulation does not correspond to the official constitutional doctrine of the principles of the protection of legitimate expectations and lex retro non agit, i.e. the two elements of the constitutional principle of a state under the rule of law, formulated by the Constitutional Court. The law may not retroactively deny a juridical fact that has already occurred, i.e. the determination of the winner of the organised competition for the position of the head of a national, state, or municipal theatre or concert establishment. Therefore, if the winner of the competition which has already taken place meets the requirements of the law for the position of the head of a national, state or municipal theatre or concert institution, a possibility should be created for him/her to hold this office under the established conditions. In the meantime, the impugned legal regulation linked the validity of the competition to the fact whether the person has taken up the respective office, although winning of the competition itself should create subjective rights and preconditions for the occurrence of the employment relationships. Thus, having declared, by means of the impugned legal regulation, the competition invalid after the results of the competition had been determined, the legislature allegedly violated the legitimate expectations of the persons to take up the respective positions for which they had won competitions.

The author of the opinion notes that, according to the official constitutional doctrine formulated by the Constitutional Court, the retroactive effect of legal acts is permitted only in those cases where the situation of a subject of legal relations is alleviated by means of a legal act; however, this was not sought by the impugned legal regulation, whereby it was intervened in the legal relationships that had already expired (the winner for the position of the head of a national, state, or municipal theatre or concert establishment has already been determined) and, therefore, the principle lex retro non agit has possibly been violated.

In the opinion of Dr. Jurgita Paužaitė-Kulvinskienė, in the considered case, none of the measures was used to help individuals, whose legal situation was influenced by the discussed amendments, to adapt to the legal situation, i.e. neither any transitional legal regulation was established, nor later date of entry into force; on the contrary, by means of the impugned legal regulation, it was intervened in the legal relationships that had already expired.

4.2. In the written opinion of Prof. Dr. Tomas Davulis, the Dean of the Faculty of Law of Vilnius University, it is noted that once the employment contract was signed between the applicant of the civil case and the defendant thereof, the Ministry of Culture of the Republic of Lithuania, the relationships regulated by the norms of labour law emerged, in which a duty arose for the defendant, as an employer, to take up the employee from the date laid down in the employment contract and the relevant rights and duties arose to the employee, inter alia, the right to start holding the position on the basis of winning the lawful competition. Thus, the person who won the competition for the position of the head of a national, state or municipal theatre or concert establishment had a legitimate expectation to take up the position of the head of the establishment concerned from the date laid down in the contract of employment. Such an expectation could only be denied if there were special circumstances between the parties (non-disclosure of self-awareness, new extraordinary circumstances discovered, etc.); establishment of these circumstances falls under the competence of the institution considering labour disputes.

According to the author of the opinion, in view of the actual official constitutional doctrine linked to the regulation of the constitutional principle of a state under the rule of law and employment relationships, it should be concluded that the provision of Paragraph 3 of Article 3 of the Law is in conflict with the constitutional principle of a state under the rule of law because it denies the principles of the protection of legitimate expectations, legal certainty, and legal security. Such an amendment of the law is also in conflict with the principle lex retro non agit because the amendments of the legal regulation denied the legitimate expectations of the person who won the competition and acquired the right to take up the position of the head of a national, state, or municipal theatre or concert establishment that his/her legitimately acquired right would be implemented. However, this does not mean that the contract with the employee may not be terminated in cases and according to the procedure provided for by law.

The Constitutional Court

holds that:

I

The impugned and related legal regulation

5. The petitioner requests an investigation into whether Paragraph 3 of Article 3 of 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 to be invalid if the winner of the competition has been determined but has not taken up the respective office, is in conflict with the Constitution.

6. On 1 June 2004, the Seimas adopted the Republic of Lithuania’s Law on Theatres and Concert Establishments, which was set out in a new wording and named as the Law on Professional Performing Arts by the Law Amending the Republic of Lithuania’s Law on Professional Performing Arts (No IX-2257), which was adopted on 20 September 2016 and came into force on 1 January 2017.

6.1. Article 1 of the Law on Professional Performing Arts (wording of 20 September 2016) establishes that this law regulates state management of professional performing arts, the system and activity of the establishments of professional performing arts, financing of these establishments, and the particularities of the employment relationships of employees, social guarantees, and the particularities of the possession, use, and disposal of property.

6.2. Paragraph 1 of Article 6 of the Law on Professional Performing Arts (wording of 20 September 2016) establishes that the system of establishments of professional performing arts is composed, inter alia, of national theatres (the Lithuanian National Opera and Ballet Theatre, the Lithuanian National Drama Theatre, and the National Kaunas Drama Theatre) and the national concert establishment the Lithuanian National Philharmonic Society, state theatres and state concert establishments, municipal theatres, and municipal concert establishments; the legal form of a national, state or municipal theatre or concert establishment is a budgetary establishment (the owner is respectively the state or a municipality) or a public establishment (the founder and owner is respectively the state or a municipality); the purpose of these institutions is to implement (or help to implement) state policy in the field of professional performing art.

6.3. It should be noted that, under the Law on Professional Performing Arts (wording of 20 September 2016), national, state, and municipal theatres and concert establishments are financed respectively from the funds of the state or municipal budget, as well as other public funds (Article 16).

6.4. Therefore, as it is obvious from the provisions of Article 1, Paragraph 1 of Article 6, and Article 16 of the Law on Professional Performing Arts that this law is intended, among other things, to regulate the activity of national, state, and municipal theatres and concert establishments whose legal form is a budgetary establishment or public establishment financed from the funds of the state or municipal budget and implementing (or helping to implement) state policy in the field of professional performing art.

7. In the aspect relevant in the constitutional justice case at issue, it should be noted that Article 11 “The particularities of the regulation of employment relationships of the employees of national, state, and municipal theatres and concert establishments” of the Law on Professional Performing Arts, inter alia, established:

1. The heads of national, state, and municipal theatres and concert establishments shall be appointed to office by means of competition under the procedure established by the Government.

2. The Minister of Culture shall establish qualification requirements for the head of a national, state and municipal theatre and concert establishment.

3. An employment contract for a period of five years shall be concluded with the successful head of a national, state or municipal theatre or concert establishment.

4. The number of terms of office of the head of a national, state or municipal theatre or concert establishment shall not be limited.

[…]”

7.1. Upon the adoption of the Law Amending Articles 11 and 13 of the Law on Professional Performing Arts by the Seimas on 11 May 2017, Paragraph 3 of Article 3 whereof is impugned in this constitutional justice case, Article 11 of the Law on Professional Performing Arts (No IX-2257)(wording of 20 September 2016) was amended.

7.1.1. From the travaux préparatoires of the Law it is clear that it 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 (therefore, the limited number of terms of office was established, i.e. not more than two consecutive terms), as well as at increasing the responsibility of the heads of these theatres and concert establishments – the requirement of good repute was established for them.

7.1.2. Paragraph 1 of Article 1 of the Law supplemented Article 11 of the Law on Professional Performing Arts with the new Paragraph 2, in which it was established:

The heads of national, state, and municipal theatres and concert establishments, as well as candidates for these positions must meet the criteria of good repute. A person shall not be considered of good repute where he/she meets at least one of the following conditions:

(1) has been found guilty of the intentional commission of a crime and has a criminal record which has remained unexpired or which has not been annulled;

(2) has been found guilty of a misdemeanour in the civil service and in the public interest or of the commission of a misdemeanour of a corrupt nature and 3 years have not passed since the final conviction;

(3) has been found guilty of crimes by which material damage was caused to the state and has a criminal record which has remained unexpired or which has not been annulled;

(4) is a member of the prohibited organisation;

(5) is released from office, appointed or elected, on breach of the oath or pledge, and breach of his/her official duties, where less than 3 years have passed since the dismissal from office;

(6) abuses alcohol, psychotropic, narcotic, or other psychoactive substances;

(7) has been found to have seriously violated the requirements of the Republic of Lithuania’s Law on the Coordination of Public and Private Interests in State Service and less than 3 years have passed since the date on which the violation became apparent;

(8) has been found to have seriously violated the Rules of Professional Conduct and Ethics for Employees of Cultural Establishments, as approved by the Minister of Culture, and less than 3 years have passed since the date on which the violation became apparent;

7.1.3. Paragraph 2 of Article 1 of the Law establishes that the former Paragraphs 2–10 of Article 11 of the Law on Professional Performing Arts should be regarded as Paragraphs 3–11 respectively.

7.1.4. Paragraphs 3 and 4 (wording of 11 May 2017) of Article 11 of the Law on Professional Performing Arts prescribe the following:

3. The Minister of Culture shall establish qualification requirements for the head of a national, state and municipal theatre and concert establishment.

4. An employment contract for a period of five years shall be concluded with the successful head of a national, state or municipal theatre or concert establishment.”

7.1.5. Paragraph 3 of Article 1 of the Law amended Paragraph 5 of Article 11 of the Law on Professional Performing Arts. Paragraph 5 (wording of 11 May 2017) of Article 11 of the Law on Professional Performing Arts was set out as follows:

The same person may be appointed as the head of the same national, state, or municipal theatre or concert establishment for not more than two consecutive terms.”

7.1.6. Paragraph 4 of Article 1 of the Law amended Paragraph 6 of Article 11 of the Law on Professional Performing Arts. Paragraph 6 (wording of 11 May 2017) of Article 11 of the Law on Professional Performing Arts, inter alia, prescribed:

[...] Where it is found that the head of a national, state or municipal theatre or concert establishment does not meet the criteria of good repute referred to in Paragraph 2 of this article, the institution implementing the rights and obligations of the owner shall take a decision to dismiss such a head and shall terminate the employment contract concluded with him/her.”

7.1.7. Thus, under the legal regulation established in Paragraphs 1–6 of Article 11 (with the amendments of 11 May 2017) of the Law on Professional Performing Arts:

persons applying for the position of the head of a national, state or municipal theatre or concert establishment shall be admitted by means of competition under the procedure established by the Government (Paragraph 1);

the heads of national, state, and municipal theatres and concert establishments, as well as persons applying for these positions, must meet the established criteria of good repute, inter alia, not to have a criminal record for an intentional crime or a crime causing material damage to the state, not to have been found guilty of a misdemeanour in the civil service and in the public interest or of the commission of a misdemeanour of a corrupt nature in the last 3 years, not to have been found to have seriously violated the requirements of the Law on the Coordination of Public and Private Interests in State Service in the last 3 years, not to have been found to have seriously violated the Rules of Professional Conduct and Ethics for Employees of Cultural Establishments, as approved by the Minister of Culture, in the last 3 years (Paragraph 2);

the heads of national, state, and municipal theatres and concert establishments, as well as persons applying for these positions, must also meet the qualification requirements established by the Minister of Culture (Paragraph 3);

a fixed-term employment contract (for 5 years) is concluded with the person who won the competition for the positions of the head of a national, state, or municipal theatre or concert establishment (Paragraph 4);

the same person may be appointed as the head of the same national, state, or municipal theatre or concert establishment for not more than two consecutive terms (Paragraph 5);

- the head of a national, state or municipal theatre or concert establishment who does not meet the criteria of good repute is dismissed from office by terminating the employment contract with him/her (Paragraph 6).

7.2. Having compared the legal regulation consolidated in Article 11 (with the amendments of 11 May 2017) of the Law on Professional Performing Arts with the legal regulation established in Article 11 of the Law on Professional Performing Arts (wording of 20 September 2016), it should be noted that by this legal regulation:

a new requirement for the heads of national, state, and municipal theatres and concert establishments, as well as for persons applying for these positions, was established– they must meet the established criteria of good repute (Paragraph 2 (wording of 11 May 2017)); in the light of this requirement, there is a special ground established for the dismissal of the head of a national, state or municipal theatre or concert establishment – where the head appears not to meet the criteria of good repute (Paragraph 6 (wording of 11 May 2017));

the maximum number of terms of office of the heads of national, state and municipal theatres and concert establishments was established (Paragraph 5 (wording of 11 May 2017)).

8. Article 3 “The entry into force and implementation of the Law” inter alia , establishes:

1. This law [...] shall come into force on 1 July 2017.

[...]

3. The persons admitted to the positions of the heads of national, state, or municipal theatres or concert establishments for a certain period before the entry into force of this law shall remain in these positions until the expiry of that period. If the competition for the positions of the head of the establishment was organised prior to the entry into force of this law but the winner of the competition was not established or did not start holding the office, such a competition is considered to be invalid and must be organised anew.

[…]”

8.1. In the aspect relevant in the constitutional justice case at issue, it should be noted that under the legal regulation established in Paragraph 3 of Article 3 of the Law:

the heads of national, state, or municipal theatres or concert establishments who took up office prior to 30 June 2017 are allowed to continue to hold office until the expiry of the term for which they were employed;

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 could no longer take up the respective office as the competitions they had won were declared invalid, i.e. the results of these competitions have been annulled by means of the law.

8.2. When interpreting Paragraph 3 of Article 3 of the Law with Paragraph 6 (wording of 11 May 2017) of Article 11 of the Law on Professional Performing Arts, it should be noted that although, under Paragraph 3 of Article 3 of the Law, the heads of national, state, or municipal theatres or concert establishments who took up office prior to 30 June 2017 are allowed to continue to hold office until the expiry of the term for which they were employed, under Paragraph 6 (wording of 11 May 2017) of Article 11 of the Law on Professional Performing Arts, they must be dismissed from the respective office if they do not meet the criteria of good repute established in Paragraph 2 (wording of 11 May 2017) of this article.

8.3. In this context, it should be noted that having, by means of the legal regulation established in Paragraph 3 of Article 3 of the Law, declared invalid the results of competitions for the positions of the heads of national, state, or municipal theatres or concert establishments in the cases where these competitions had taken place prior to the entry into force of this law and their winners had not started holding the respective office, i.e. having annulled, by means of the law, the results of the said competitions, the winners of these competitions could no longer start holding the respective office regardless of whether they met the criteria of good repute established in Paragraph 2 (wording of 11 May 2017) of Article 11 of the Law on Professional Performing Arts.

8.4. As mentioned before, Paragraph 4 (wording of 11 May 2017) of Article 11 of the Law on Professional Performing Arts establishes that an employment contract is concluded with the successful head of the establishment. Therefore, the legal regulation established in Paragraph 3 of Article 3 of the Law should be interpreted in the light of the provisions of the Labour Code relevant in this constitutional justice case.

8.4.1. Paragraph 3 (wording of 6 June 2017) of Article 41 “Pre-Contractual Relations between the Parties to an Employment Contract” of the Labour Code prescribes:

In order to select an employee for a management or specialist position or for positions that must be filled by individuals who possess specific abilities or who are subject to particular intellectual, physical, health or other requirements, a competition may be held. The list of positions subject to competition and the procedure for the organisation and execution of competitions at state and municipal enterprises, state and municipal institutions funded from the budgets of the state, municipality or State Social Insurance Fund or from other funds established by the state, and public institutions owned by the state or municipality, shall be determined by the Government of the Republic of Lithuania, with the exception of institutions where the list of positions subject to competition and the procedure for the organisation and execution thereof are established by special laws. A person who has won a competition has the right to demand that an employment contract be concluded with him/her within 20 working days, aside from where exceptions are established by laws.”

8.4.2. Paragraph 3 of Article 42 of the Labour Code establishes that employment contract enters into force upon the employee beginning work; if an employment contract was concluded but did not enter into force without any fault on the part of the employee, the employer must pay the employee compensation in an amount no less than the employee’s remuneration for the agreed period of work but no longer than one month.

8.4.3. Thus, when interpreting the impugned legal regulation established in Paragraph 3 of Article 3 of the Law in the context of the said provisions of the Labour Code, it should be noted that, under this legal regulation:

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 could no longer require, on the basis of Paragraph 3 (wording of 6 June 2017) of Article 41 of the Labour Code, the conclusion of an employment contract with them;

the employment contracts concluded by 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 could not come into effect without any fault of them and, according to Paragraph 3 of Article 42 of the Labour Code, they acquired the right to the compensation of the established amount.

9. In this context, it is should also be noted that the Law on Professional Performing Arts (wording of 20 September 2016 with subsequent amendments) does not establish any time limits for the announcement of competitions for the positions of the heads of national, state, or municipal theatres or concert establishments. Such time limits 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 (No ĮV-426) of the Minister of Culture of 29 December 2004 in implementing Paragraph 1 of Article 10 and Item 4 of Article 22 of this law, whereby the procedure for organising competitions for the said positions had been regulated.

The time limits for the announcement of competitions for the positions of the heads of national, state, or municipal theatres or concert establishments were established in the Description of the Procedure of Competitions for the Positions of the Heads of National, State, and Municipal Theatres and Concert Establishments, as approved by the government resolution (No 326) on the approval of the Description of the Procedure of Competitions for the Positions of the Heads of National, State, and Municipal Theatres and Concert Establishments of 26 April 2017, which was adopted pursuant to Paragraph 1 of Article 11 of the Law on Professional Performing Arts. Item 4 of this Description establishes that the competition shall be announced:

4 months before the expiry of the employment contract of the head of a national theatre or national concert establishment (sub-item 4.1);

2 months before the expiry of the employment contract of the head of a state or municipal theatre or state or municipal concert establishment (sub-item 4.2);

within 15 working days of the day when the position of the head of the theatre or concert establishment is created, becomes vacant or it has become known (there is a legal basis) that it will be vacant (sub-item 4.3).

II

The provisions of the Constitution and the official constitutional doctrine

10. In the constitutional justice case at issue, it is investigated whether the provision of the Law, under which a competition organised prior to the entry into force of the Law for the position of the head of a national, state, or municipal theatre or concert establishment is considered to be invalid if the winner of the competition has been determined but has not taken up the respective office, is in conflict with the constitutional principle of a state under the rule of law.

11. The Constitutional Court has held on more than one occasion that the constitutional principle of a state under the rule of law is universal, especially broad and comprises a wide range of various interrelated imperatives; the content of this principle can be disclosed in various provisions of the Constitution (inter alia, the Constitutional Court’s decision of 20 April 2010 and its ruling of 26 June 2017).

11.1. Legal certainty, legal security; and the protection of legitimate expectations are inseparable elements of the principle of a state under the rule of law; these constitutional principles imply the duty of the state to ensure the certainty and stability of a legal regulation, to protect the rights of persons, to respect legitimate interests and legitimate expectations, and to fulfil the obligations undertaken to the person; the persons have the right to reasonably expect that they will retain their rights, acquired under effective laws or other legal acts that are not in conflict with the Constitution, for the established period of time and will be able to implement these rights in reality; no changes in the legal regulation are allowed to deny the legitimate interests and legitimate expectations of a person; 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, 15 February 2013, and 25 January 2017).

One of the elements of the principle of legitimate expectations is the protection of such rights that were acquired under the Constitution and under those laws and other legal acts that were not in conflict with the Constitution; under the Constitution, in the relationships with the state only those expectations of a person are protected and defended that arise from the Constitution itself or the laws and other legal acts that are not in conflict with the Constitution; only such expectations of a person in relationships with the state are considered legitimate (the Constitutional Court’s rulings of 4 July 2003, 13 December 2004, and 24 May 2013).

11.2. The Constitutional Court has held on more than one occasion that the constitutional principle of a state under the rule of law implies various requirements for the legislature and other law-making subjects, inter alia, the fact that the effect of legal acts is prospective, the retroactive effect of legal acts is not allowed (lex retro non agit), unless the situation of a subject of legal relations could be alleviated without prejudice to other subjects of legal relations (lex benignior retro agit) (inter alia, the Constitutional Court’s rulings of 25 October 2011, 29 June 2012, and 19 June 2018).

In the jurisprudence of the Constitutional Court, it has been held that the requirement that the effect of published laws must be prospective and that these laws must not have retroactive effect is an important precondition for legal certainty and it is an essential element of the rule of law and a state under the rule of law (the Constitutional Court’s rulings of 11 January 2001 and 30 September 2003); it is not permitted to establish such a legal regulation that would intervene in the legal relations that have already expired; such a regulation that could change particular legal norms when the regulated relations are over would create the preconditions for denying the legitimate expectations of persons, legal certainty and legal security, as well as the constitutional principle of justice (the Constitutional Court’s rulings of 29 November 2007, 25 October 2011, and 29 June 2012).

11.3. The principle of proportionality is the element of the constitutional principle of a state under the rule of law, which means that the measures provided for in legal acts must be in line with the legitimate objectives that are important to society, and that these measures must be necessary in order to reach the said objectives and must not restrict the rights and freedoms of the person clearly more than necessary in order to reach the said objectives (inter alia, the Constitutional Court’s rulings of 31 October 2012, 1 July 2013, and 14 February 2014). The requirement not to limit the rights and freedoms of a person more than necessary in order to reach legitimate objectives that are important to society, inter alia, implies the requirement for the legislature to establish the legal regulation that would create the preconditions for the sufficient individualisation of the limitations on the rights and freedoms of a person: the legal regulation limiting the rights and freedoms of a person, as provided in a law, must be such that would create the preconditions for assessing, to the extent possible, an individual position of each person and, in view of all important circumstances, for individualising as appropriate the specific measures that are applicable to and limit the rights of that person (the Constitutional Court’s rulings of 7 July 2011 and 17 February 2016).

12. In the context of this constitutional justice case, some relevant provisions of the official constitutional doctrine linked to the implementation of the constitutional right of a person to work should be noted.

12.1. In the jurisprudence of the Constitutional Court, the provision of Paragraph 1 of Article 48 of the Constitution, whereby everyone may freely choose a job or business is interpreted as a norm of general nature which means the opportunity to choose the type of occupation at one’s own discretion; a person who seeks to implement his/her constitutional right to work has the right to decide freely whether to choose a job in the private sector or a private business, or to seek to be employed in state service (inter alia, the Constitutional Court’s rulings of 13 December 2004 and 19 December 2018). The Constitutional Court has held on more than one occasion that the provision “Citizens shall have the right […] to enter on equal terms the State Service of the Republic of Lithuania” of Paragraph 1 of Article 33 of the Constitution is linked to the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 thereof as lex specialis and lex generalis (inter alia, the Constitutional Court’s rulings of 13 December 2004, 13 August 2007, and 18 April 2019). The constitutional right of citizens to enter the state service of the Republic of Lithuania on equal terms is a variation of the constitutional right of every person to choose a job (inter alia, the Constitutional Court’s rulings of 13 December 2004, 7 July 2011, and 4 November 2015).

12.2. The constitutional freedom of each individual to choose a job implies the duty of the legislature to create the legal preconditions for implementing this freedom; while doing so, the legislature has the powers to establish, by taking account of the nature of a job, the conditions of implementing the right to freely choose a job; in doing so, the legislature must pay regard to the Constitution (inter alia, the Constitutional Court’s rulings of 25 November 2002, 7 July 2011, and 15 March 2016).

12.3. In this context, it should be mentioned that the Constitutional Court has noted that the constitutional mission of state service and special tasks assigned to state service determine the fact that certain general requirements may and must be set for a citizen who enters state service, and that a person who fails to meet them will not be able to become a state servant (among other things, general requirements linked with the personal characteristics of a person entering state service, his/her reputation, education, etc. may be established); legal acts may also establish specific requirements for persons seeking to hold certain positions in state service or in a specific state or municipal establishment, such as professional competence, experience, the knowledge of languages, expert knowledge and skills, etc., as well as the requirements linked with the reputation of a person who enters state service, his/her personal characteristics, etc. (the Constitutional Court’s rulings of 13 December 2004, 13 August 2007, and 22 January 2008); the higher the position or the more important the area of activities, the higher the requirements that are raised before persons holding such positions (inter alia, the Constitutional Court’s rulings of 22 January 2008, 7 July 2011, and 18 June 2019).

It should be noted that these provisions of the official constitutional doctrine concerning the requirements stemming from the Constitution for persons entering state service are also applicable mutatis mutandis to other persons who receive remuneration from the state (municipal) budget.

13. In the context of the constitutional justice case at issue, it should be noted that Paragraph 2 of Article 42 of the Constitution, inter alia, provides that “the state supports culture [...], and takes care of the protection of [...] artistic, and other cultural monuments, as well as other culturally valuable objects”. While interpreting Paragraph 2 of Article 42 of the Constitution, in its ruling of 8 July 2005, the Constitutional Court held the following:

ensuring of freedom of culture, state support to culture, the protection of cultural monuments and other culturally valuable objects are a public interest and an important function of the state; support to culture, as well as the protection of cultural monuments and values, is a necessary condition of freedom of culture as an innate freedom of an individual (which comprises freedom of creative activity and freedom of access to culturally valuable objects);

the state is constitutionally obliged to support and foster culture as a national value of universal importance – the material and spiritual creative activity and its results that should be transferred to future generations; according to the Constitution, the state must not only refrain from hindering the natural development of culture but also by its positive decisions (inter alia, a legal regulation), encourage and support, by using state funds and other resources the creation, spreading, promotion, and preserving material and spiritual cultural values;

constitutional imperative of access to culturally valuable objects implies the duty of the state to establish and maintain such state institutions (establishments or enterprises through which state functions are performed) whose objective is taking care of the development of culture (inter alia, establishments or enterprises providing public cultural services), or to initiate or encourage founding and providing support to other – non-governmental – institutions the purpose of which is taking care of the development of culture.

14. In the context of the constitutional justice case at issue, it should be noted that the Constitution, inter alia, 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, inter alia, 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. It should also be noted that these powers must be exercised in accordance with the Constitution, inter alia, with the imperatives stemming from the constitutional principle of a state under the rule of law.

III

The assessment of the constitutionality of Paragraph 3 of Article 3 of the Law Amending Articles 11 and 13 of the Law on Professional Performing Arts (No IX-2257)

15. As mentioned before, in this constitutional justice case, it is investigated whether Paragraph 3 of Article 3 of 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 to be invalid if the winner of the competition has been determined but has not taken up the respective office, is in conflict with the constitutional principle of a state under the rule of law.

16. According to the petitioner, 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 to be employed and work under an employment contract in the position for which they had won the competition. Moreover, according to the petitioner, the legislator could have violated the principle lex retro non agit by regulating in a different manner, by means of the Law, the already existing competition relationships.

17. It has been mentioned that the Constitution, inter alia, 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.

It has also been mentioned that after the Seimas had adopted, on 11 May 2017, the Law whose Paragraph 3 of Article 3 was impugned by the petitioner, Article 11 (wording of 20 September 2016) of the Law on Professional Performing Arts was amended. The following new provisions of Article 11 (with the amendments of 11 May 2017) of the Law on Professional Performing Arts, consolidated by means of the Law, should be mentioned:

a new requirement was established 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;

a special ground was established for dismissal of the head of a national, state or municipal theatre or concert establishment – where the head appears not to meet the criteria of good repute;

the maximum number of terms of office of the heads of national, state and municipal theatres and concert establishments was established.

As mentioned before, it is obvious from travaux préparatoires of the Law that it 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.

Therefore, it should be noted that, by adopting the Law whose Paragraph 3 of Article 3 is impugned by the petitioner, the legislature implemented the duty stemming from the Constitution, inter alia, Paragraph 2 of Article 42 thereof, in order to ensure the public interest, 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; the legislature also implemented its powers stemming from the Constitution, inter alia, Paragraph 1 of Article 48 thereof, 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.

18. When deciding whether the impugned legal regulation established in Paragraph 3 of Article 3 of the Law complies with the constitutional principle of a state under the rule of law, it should be noted that, as mentioned before, the powers of the legislature, which stem from the Constitution, inter alia, Paragraph 1 of Article 48 thereof, which consolidates the right of everyone to freely choose an occupation, 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, must be exercised in accordance with the Constitution, inter alia, with the imperatives stemming from the constitutional principle of a state under the rule of law.

18.1. In revealing the content of the constitutional principle of a state under the rule of law in this ruling of the Constitutional Court, the following was mentioned:

under the Constitution, the protection of legitimate expectations, legal certainty and legal security are inseparable elements of the principle of a state under the rule of law; one of the elements of the principle of legitimate expectations is the protection of such rights that were acquired under the Constitution and under those laws and other legal acts that were not in conflict with the Constitution; the persons have the right to reasonably expect that they will retain their rights, acquired under effective laws or other legal acts that are not in conflict with the Constitution, for the established period of time and will be able to implement these rights in reality; if the protection of legitimate expectations, legal certainty, and legal security are not ensured, the trust of persons in the state and in law will not be ensured, either;

the constitutional principle of a state under the rule of law implies such a requirement for the legislature and other law-making subjects that the power of legal acts must be only prospective, the retroactive effect of legal acts is not permitted (lex retro non agit), unless the situation of a subject of legal relations would be alleviated without prejudice to other subjects of legal relations (lex benignior retro agit); the requirement that the effect of published laws must be prospective and that these laws must not have retroactive effect is an important precondition for legal certainty and it is an essential element of the rule of law and a state under the rule of law; it is not permitted to establish such a legal regulation that would intervene in the legal relations that have already expired; otherwise, the preconditions would be created for denying the legitimate expectations of persons, legal certainty and legal security, and the constitutional principle of justice;

one of the elements of the constitutional principle of a state under the rule of law, the principle of proportionality, means that the measures provided for in legal acts must be in line with the legitimate objectives that are important to society; such measures must be necessary to reach the said objectives and must not restrict the rights and freedoms of a person clearly more than necessary in order to reach these objectives; the requirement not to restrict human rights and freedoms by means of a law more than necessary to reach the legitimate objectives that are important to society, inter alia, implies the requirement for the legislature to establish such a legal regulation that would create 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.

18.2. In the aspect relevant in the context of the petition, it should be noted that, as mentioned before, under the legal regulation established in Paragraph 3 of Article 3 of the Law, 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 could no longer take up the respective office as the competitions they had won were declared invalid, i.e. the results of these competitions have been annulled by means of the law.

It has also been mentioned that, under the impugned legal regulation established in Paragraph 3 of Article 3 of the Law:

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 could no longer require, on the basis of Paragraph 3 (wording of 6 June 2017) of Article 41 of the Labour Code, the conclusion of an employment contract with them;

the employment contracts concluded by 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 could not come into effect without any fault of them and, according to Paragraph 3 of Article 42 of the Labour Code, they acquired the right to the compensation of the established amount.

18.3. In view of the above, it should be held that, by means of the legal regulation prescribed in Paragraph 3 of Article 3 of the Law, having declared invalid the results 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 this law and their winners had not started holding the respective office, i.e. having annulled, by means of the law, the results of the said 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. It should be noted that such a legal regulation worsened the legal situation of all the winners of such competitions, as after the results of these competitions had been annulled by means of the law, the said winners could no longer take up the respective office regardless of whether they met the new established criteria of good repute consolidated in Paragraph 2 (wording of 11 May 2017) of Article 11 of the Law on Professional Performing Arts, 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 should also be noted 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 established in Paragraph 2 (wording of 11 May 2017) of Article 11 of the Law on Professional Performing Arts but also those winners who would have met the said criteria if their reputation had been evaluated. It should also be noted that 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.

18.4. In this context, it should be noted that, under Paragraph 6 (wording of 11 May 2017) of Article 11 of the Law on Professional Performing Arts, the heads of national, state or municipal theatres or concert establishments must be dismissed from the respective office if they do not meet the criteria of good repute established in Paragraph 2 (wording of 11 May 2017) of this article. Therefore, this legal regulation creates 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 do not meet the criteria of good repute established in Paragraph 2 (wording of 11 May 2017) of Article 11 of the Law on Professional Performing Arts from holding (taking up) such office.

It should also be noted that the compensation provided for in Paragraph 3 of Article 42 of the Labour Code, in an amount of no less than the remuneration for the agreed employment period not exceeding one month, which, as mentioned before, must be paid, inter alia, 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 but due to the legal regulation established in the impugned Paragraph 3 of Article 3 of the Law, 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.

18.5. In summing up, 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 it 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; in addition, this legal regulation, which annulled the results of all competitions for the positions of the heads of national, state, or municipal theatres or concert establishments in cases where their winners had not started holding these positions until 30 June 2017, was not necessary in order to reach the objectives of the Law and 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 these objectives.

Thus, by means of the legal regulation established in Paragraph 3 of Article 3 of the Law, the legislature disregarded the requirement stemming from the constitutional principle of a state under the rule of law for the laws and other legal acts not to have the retroactive effect (lex retro non agit), as well as the principles of the protection of legitimate expectations, legal certainty, legal security, and proportionality, which, as mentioned before, are the elements of the constitutional principle of a state under the rule of law, and violated the right of every person to freely choose an occupation, which is consolidated in Paragraph 1 of Article 48 of the Constitution.

18.6. In view of the above-mentioned arguments, the conclusion should be made that Paragraph 3 of Article 3 of 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 had been determined but did not take 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.

19. In the context of the constitutional justice case at issue, it should be noted that, as mentioned before, the Law on Professional Performing Arts (wording of 20 September 2016 with subsequent amendments) 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 Paragraph 1 of Article 10 and Item 4 of Article 22 the above-mentioned law, whereby the procedure for organising competitions for the said positions had been regulated. It has also been mentioned that the time limits for announcing 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.

It should be noted that, according to Article 105 of the Constitution, the Constitutional Court considers and adopts decisions on whether the laws and other acts adopted by the Seimas are in conflict with the Constitution (Paragraph 1) and whether the acts of the President of the Republic and the acts of the Government are in conflict with the Constitution and laws (Paragraph 2). As the Constitutional Court noted in the ruling of 2 September 2009, 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.

20. In the context of this constitutional justice case, it should be noted that, as the Constitutional Court has held on more than one occasion, Paragraph 1 of Article 107 of the Constitution consolidates the general rule that the legal force of decisions passed by the Constitutional Court is prospective (inter alia, the Constitutional Court’s ruling of 30 December 2003, 27 April 2016 and 16 April 2019). Therefore, the recognition, by means of this ruling of the Constitutional Court, that Paragraph 3 of Article 3 of the Law is unconstitutional, insofar as it establishes 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, 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, it should be noted 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, under Paragraph 1 of Article 109 of the Constitution, while administering justice, courts must ensure the implementation of the right 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 the 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 national, state, or municipal theatres or concert establishments, as well as assess the circumstances of the organisation and implementation of these competitions.

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

ruling:

To recognise that Paragraph 3 of Article 3 of the Law Amending Articles 11 and 13 of the Republic of Lithuania’s Law on Professional Performing Arts (No IX-2257) (Register of Legal Acts, 22-05-2017, No 8567, identification code 2017-08567), 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 of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

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