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On the right of students who study at a higher education school

 

 

Case no 11/2018


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

RULING
ON THE COMPLIANCE OF ITEM 5 OF PARAGRAPH 1 OF ARTICLE 22 AND ITEM 4 OF PARAGRAPH 4 OF ARTICLE 24 OF THE REPUBLIC OF LITHUANIA’S LAW ON EMPLOYMENT WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

31 October 2019, no KT41-N12/2019
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 17 October 2019, under written procedure considered the constitutional justice case (no 11/2018) subsequent to the petition (no 1B-15/2018) of the Vilnius Regional Administrative Court, the petitioner, requesting an investigation into whether Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Republic of Lithuania’s Law on Employment, insofar as this item provides that an unemployed person is considered to be a person who does not study at a higher education school under a full-time study programme, as well as Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the same law, insofar as this item provides that the status of an unemployed person is revoked if he/she starts studying at a higher education school under a full-time study programme, is in conflict with Article 29 of the Constitution of the Republic of Lithuania, the provision “Higher education shall be accessible to everyone according to individual abilities” of Paragraph 3 of Article 41, and Article 52 thereof, and the constitutional principle of the protection of legitimate expectations.

The Constitutional Court

has established:

I

The arguments of the petitioner

1. The Vilnius Regional Administrative Court, the petitioner, considered the administrative case in which the decision of the Kaunas territorial labour exchange to revoke the status of an unemployed person for the petitioner if he/she starts studying at a higher education school under a full-time study programme is the impugned.

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

2.1. Referring to the official constitutional doctrine where it is noted that it is not allowed to establish any such legal regulation by which a person, in implementing a certain constitutional right, would lose the possibility of implementing another constitutional right, the petitioner notes that the impugned legal regulation implies a situation where a person seeking to exercise the constitutional right to higher education loses the right to an unemployment insurance benefit because he/she seeks to exercise his/her right to higher education, although he/she could make use of the right to an unemployment insurance benefit under all other established criteria. Therefore, the impugned legal regulation, to the specified extent, unduly restricts the right of a person to an unemployment benefit and the right of a person to higher education, thus, it violates the provision “Higher education shall be accessible to everyone according to individual abilities” of Paragraph 3 of Article 41 of the Constitution, as well as Article 52 thereof.

2.2. In the administrative case considered by the petitioner, such a situation occurred that the person had no influence in determining the form of a study programme, the study programmes of his/her choice were established by the higher education schools themselves as full-time study programmes and he/she did not have the possibility of choosing these studies in a different form. Thus, according to the petitioner, this legal regulation could also lead to discrimination against persons studying under full-time study programmes compared with persons studying under part-time study programmes. In the opinion of the petitioner, there are no differences of such a nature and to such an extent between these two groups so that such unequal treatment would be objectively justified. Although, according to the form of studies, the possibility to combine employment with studies is much better ensured for persons studying under part-time study programmes, this does not mean that in seeking not to lose the right to an unemployment benefit, a person must choose only part-time study programmes, especially taking account of the fact that not all study programmes are offered in both forms. In the light of the above, the petitioner draws a conclusion that the legal regulation is, to the specified extent, in conflict with the principle of the equality of persons, as consolidated in Article 29 of the Constitution.

2.3. In addition, according to the petitioner, a person who pays social insurance contributions has the right to reasonably expect that, if necessary, he/she will receive certain support (in this case, an unemployment insurance benefit) and that there will be no preconditions created for disproportionately complicating the implementation of the right to receive this support in the event of unemployment. In the opinion of the petitioner, due to this, the constitutional principle of the protection of legitimate expectations is violated.

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 Rimantė Šalaševičiūtė, the member of the Seimas acting as the representative of the Seimas of the Republic of Lithuania, the party concerned, in which it is maintained that the legal regulation consolidated in the provisions of the Law on Employment is not in conflict with the Constitution. The position of the representative of the party concerned is based on the following arguments.

When interpreting the duty of the state to guarantee the right of every individual, inter alia, to social security in the event of unemployment, which is consolidated in Paragraph 1 of Article 48 of the Constitution, the Constitutional Court has noted that, if, due to certain reasons, a person loses his/her job and cannot take care of his/her welfare, the duty arises for the state to establish such a legal regulation under which social assistance would be ensured for such a person in the event of unemployment; however, in itself, the constitutional status of social rights does not deny the right of the legislature to establish certain conditions for or limitations on the emergence of the aforesaid rights. In this respect, the representative of the party concerned notes that the status of an unemployed person not only entitles him/her to the right of an unemployment insurance benefit but also implies certain duties to him/her. The aim of this is to increase employment of job seekers and to reduce unemployment. Active labour market policy measures (training support and assisted employment measures) have duration of 8 hours per day (with the exception of cases where part-time employment is established in the employment contract of the employed person). It is clear that the studies are more intensive for a person studying under full-time study programmes, the number of credits (respectively the number of hours for studies) is higher, which reduces his/her possibilities to devote more time to work, job searches, and other activities and measures related to the duties of an unemployed person. Thus, having granted a status of an unemployed person for a person studying under a full-time study programme, in principal, it would be difficult or practically impossible to be prepared to accept an offer of employment provided by the Employment Services Under the Ministry of Social Security and Labour of the Republic of Lithuania (hereinafter referred to as the Employment Services) and to be prepared to participate in measures of the active labour market policy and employment-enhancing programmes. In addition, studies are based on the principles of lifelong learning, students’ personal interest, and other principles; therefore, it is reasonable to doubt that these principles would not be undermined by the participation in active labour market policies of a student enrolled in full-time study programmes in the performance of his or her duties as an unemployed person. Thus, having regard to the duties imposed on the unemployed person in relation to the acquisition of the status of an unemployed person, as well as to the fact that persons studying under part-time study programmes have the possibility to devote more time to quality studies, job searches, and other activities and measures related to the duties of unemployed persons, the Law on Employment reasonably consolidates the provision that the persons who study under full-time study programmes may not be unemployed, whereas the persons who study under part-time study programmes may be granted the status of an unemployed person.

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 Algirdas Monkevičius, the Minister of Education, Science and Sport of the Republic of Lithuania, Linas Kukuraitis, the Minister of Social Security and Labour of the Republic of Lithuania, Ligita Valalytė, the Director of the Employment Services, and Jurgita Paužaitė-Kulvinskienė, the Director of the Law Institute of Lithuania, as well as written opinions that were submitted by Prof. Dr. Lyra Jakulevičienė, the Dean of the Law School of Mykolas Romeris University and were prepared by Prof. Dr. Toma Birmontienė of the Institute of Public Law of the Faculty of Law of Mykolas Romeris University, and lecturers Ramunė Guobaitė-Kirslienė and Linas Vilys of the Institute of Private Law of Mykolas Romeris University.

4.1. According to Algirdas Monkevičius, the Minister of Education, Science and Sport, the impugned legal regulation is possibly in conflict with Article 29 of the Constitution and with the constitutional principle of the protection of legitimate expectations. In the opinion, it is noted that the exercise of one constitutional right should not exclude the possibility of implementing another constitutional right, and the receipt of social assistance in the event of unemployment should not depend on whether the person is enrolled in higher education or not, as well as on the fact in what form he is studying there because different forms of study lead to an equivalent level of education. In addition, a person who works and pays social insurance contributions has the right to reasonably expect that, if necessary, he/she will receive an unemployment insurance benefit.

4.2. In the opinion of Linas Kukuraitis, the Minister of Social Security and Labour, it is noted that the impugned legal regulation is not in conflict with the Constitution, as the acquisition of the status of an unemployed person not only entitles him/her to the right of an unemployment insurance benefit but also implies certain duties to him/her, for example, to search for a job, to participate in active labour market measures, etc. In view of the above, the Minister of Social Security and Labour also notes that the legal acts of the Republic of Lithuania lay down not only the right of students to an unemployment social insurance benefit but also to social or other kind of support (scholarships, state-funded student places, the possibility of borrowing from banks at preferential terms, compensation of the cost of studies, etc.). Thus, the unemployment social insurance benefit cannot be identified as the whole system of social assistance guaranteed under Article 52 of the Constitution.

4.3. In the opinion of Ligita Valalytė, the Director of the Employment Services, the legal situation of the persons who study under full-time study programmes and the persons who study under part-time study programmes is not equal because the students studying at higher education schools under full-time study programmes are insured by health insurance from state resources and the students who have chosen to study under part-time study programmes must pay social insurance contributions themselves. In addition, persons studying under part-time study programmes have enhanced possibilities for combining employment with studies and that is the essential difference between the above-mentioned forms of studies objectively the legal regulation consolidated in the provisions of the Law on Employment.

On the other hand, in the opinion of Ligita Valalytė, the Director of the Employment Services, it is also noted that the Employment Services agrees with the statement of the petitioner that a person who pays social insurance contributions has the right to reasonably expect that, if necessary, he/she will receive an unemployment insurance benefit; however, according to the Employment Services, in this aspect, not the legal regulation established in the impugned provisions of the Law on Employment is in conflict with the Constitution but Paragraph 1 of Article 5 of the Law on Unemployment Social Insurance, under which, the persons who are registered with the Employment Services and have been granted the status of unemployed persons are entitled to the right of an unemployment insurance benefit.

4.4. In the opinion submitted by Dr. Jurgita Paužaitė-Kulvinskienė, the Director of the Law Institute of Lithuania, it is noted that flexibility in employment relationships and changes in forms of studies (e.g. lectures take place in the second half of the day and information technologies allow to study or work remotely) allow work to be combined with both full-time studies and part-time studies; therefore, the impugned legal regulation, under which those persons who worked and paid social insurance contributions and who chose to study under full-time study programmes do not receive unemployment insurance benefits, is potentially in conflict with the principles of social justice and the protection of legitimate expectations. In the opinion submitted by Dr. Jurgita Paužaitė-Kulvinskienė, it is stated that the impugned legal regulation is in conflict, among other things, with Articles 29 and 52 of the Constitution, since the difference in the treatment of persons studying under full-time study programmes and persons who have chosen part-time study programmes cannot be justified by the essential difference in the forms of the said studies – different length of studies. In view of the above, it was noted that the mechanism of social assistance established in the Constitution implies the legislature to establish sufficient measures of the implementation of social assistance and its legal defence and to prevent the situations where a person who has lost his/her job due to certain reasons but who meets all other conditions established by the law would not receive social assistance. In addition, the unemployment insurance benefit cannot be considered as a stable source of income, it is paid on a temporary basis and, therefore, is not sufficient to guarantee income for the entire duration of their studies. Consequently, having the status of the unemployed does not influence the implementation of the constitutional right of a person to higher education. As it has been noted by the Constitutional Court, a person, in implementing one constitutional right, should not lose the possibility of implementing another constitutional right.

4.5. Prof. Dr. Toma Birmontienė of the Institute of Public Law of the Law School of Mykolas Romeris University notes that the impugned provisions of the Law on Employment, according to which, it is not the fact that a person is enrolled in higher education, but the form of study chosen by the person concerned which determines whether he/she will acquire (and maintain) the status of an unemployed person and whether he/she will receive (or lose) a social insurance benefit, lay down a differentiated legal regulation. In view of the fact that the requirements set out for full-time and part-time studies, for example, the number of hours of contact work, are essentially identical for students studying at higher education schools, the forms of work activity are also varied, and that both students studying under part-time study programmes and students studying under full-time study programmes may, upon the decision of a higher education school adopted subsequent to a submitted relevant request, study pursuant to an individual plan, the impugned legal regulation created preconditions for the unequal treatment of persons seeking higher education and disrespect for the imperatives arising from the constitutional principle of a state under the rule of law. Moreover, the impugned legal regulation is in conflict with the right to receive social support in the event of unemployment, as consolidated in Articles 48 and 52 of the Constitution, and with the principle of accessibility to higher education, as consolidated in Paragraph 3 of Article 41 of the Constitution, and the requirement stemming from this principle for the legislature not to establish the requirements for persons seeking higher education that would be inconsistent with the constitutional principle of the equality of persons.

4.6. Lecturers Ramunė Guobaitė-Kirslienė and Linas Vilys of the Institute of Private Law of Mykolas Romeris University note that the impugned legal regulation creates such a situation where a person of working age, who is currently unemployed and who has actively participated, for at least the period laid down by law, in a compulsory unemployment insurance scheme, that is to say, who has contributed jointly and severally to the financial and social security of the unemployed during his employment, cannot benefit from the guarantees provided by the unemployment insurance system if he/she subsequently loses his/her job as a person who is not studying or who is studying under other than full-time study programmes. Thus, there is no balance ensured between rights and obligations, and only one aspect of public solidarity is implemented: upon the requirement of the State, a person takes part in the unemployment social security system, but, having fulfilled the respective obligations, cannot benefit from the rights and guarantees provided by the unemployment social security system only because of its freely chosen form of studies aimed at more effective integration into the labour market.

In view of this, lecturers Ramunė Guobaitė-Kirslienė and Linas Vilys also point out that the legal status of a student when he/she studies at higher education school does not in itself guarantee that he/she will receive income at the present time, but merely increases the ability of the person to earn income in the future from his/her economic activity. Thus, the state is not relieved of its constitutional obligation to protect a person (including a student) from poverty in the event of loss of employment and/or to cover part of his/her loss of income, in particular where such a person has contributed jointly and severally to the social security system for the period required by the law and had a legitimate expectation of being protected in the event of a social risk of unemployment. One constitutional right cannot be denied by implementing another constitutional right. In addition, the Constitution does not justify such a situation when the payment of an unemployment social insurance benefit is terminated solely on the grounds that the person is studying under full-time study programme and not under other form of study programme, as these persons are discriminated on the basis of their social situation. This difference in treatment cannot be justified by the principle of the limitation of public finances or their cost-effectiveness, since higher education is financed by general taxation and unemployment social insurance benefits are financed by the special State Social Insurance Fund, to which the person concerned has contributed himself/herself by virtue of his/her employment and contributions and, in particular, this is why, having lost his/her employment, he/she acquires a legitimate expectation that he will receive those benefits.

The Constitutional Court

holds that:

I

The impugned and related legal regulation

5. The Vilnius Regional Administrative Court, the petitioner, requests an investigation into whether Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, insofar as this item provides that an unemployed person is considered to be a person who does not study at a higher education school under a full-time study programme, as well as Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the same law, insofar as this item provides that the status of an unemployed person is revoked if he/she starts studying at a higher education school under a full-time study programme, is in conflict with the Constitution.

6. On 21 June 2016, the Seimas adopted the Republic of Lithuania’s Law on Employment, which came into force on 1 July 2017.

The Law on Employment, which was adopted on 21 June 2016, was amended and supplemented before its coming into force by the Republic of Lithuania’s Law Amending Articles 12, 13, 20, 22, 23, 24, 25, 26, 29, 31, 32, 35, 36, 37, 39, 40, 41, 42, 46, 48, 56, 57, 58, and 60 of the Law on Employment (No XII-2470) and Supplementing it with Article 391,which was adopted on 6 June 2017 by the Seimas.

7. Paragraph 1 of Article 22 “Unemployed persons and other job seekers” of the Law on Employment, the constitutionality of Item 5 (wording of 6 June 2017) of which is impugned by the petitioner, prescribes the following:

An unemployed person shall be a person who fulfils all the following conditions:

(1) does not work under an employment contract or is not subject to legal relations deemed to be equal to employment relations;

(2) is not a self-employed person except for persons carrying out activities specified in Article 5(3) of this Law, specifically, the provision of agricultural and forestry services by issuing service receipts, a person who is engaged in the activities specified in Paragraphs 3 through 7 of Article 7 of this Law, a person who is an owner of a sole proprietor company, a small partnership, a general partnership or a limited partnership that has temporarily suspended its activities and has notified the tax administrator according to the procedure set by the central tax administrator, or a member of a small partnership, or a full member of a general partnership or a limited partnership, or an owner of a sole proprietor company, a small partnership, a general partnership or a limited partnership having the status of an entity under liquidation or bankruptcy as recorded in the Register of Legal Entities or a member of small partnership or a full member of a general partnership or a limited partnership having the said status, and a person that has registered farm animals but has no status of a farmer and is not a farmer‘s partner or has not registered an agricultural holding or is not a partner of an agricultural holding;

(3) is a person between 16 years of age and the old-age pension age set by legal acts;

(4) is a person who can be an employee according to the Labour Code of the Republic of Lithuania except for a person that has been recognised as incapable for work under the Republic of Lithuania Law on the Social Integration of Disabled Persons;

(5) is not studying under any general education programme or formal vocational education programme except for persons who study under adults’ primary, basic or secondary education programmes or persons who finance their studies under a formal vocational education programme themselves, or do not study at a higher education establishment under a full-time study programme;

(6) is seeking a job both independently and using the labour market services provided by a local labour exchange according to a procedure prescribed by the Government of the Republic of Lithuania or an institution authorised by it”.

Therefore, Paragraph 1 (with the amendment of 6 June 2017) of Article 22 of the Law on Employment establishes the conditions for the acquisition of the status of an unemployed person, inter alia, that a person must be of working age, able to work, not having a job (not subject to legal relations deemed to be equal to employment relations or a self-employed person, subject to exceptions laid down by law), actively seek employment. Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, which is impugned in the constitutional justice case at issue, consolidates a condition of a different nature for the acquisition of the status of an unemployed person – not learning or studying by the person (save the exceptions provided for in this item), inter alia, not studying at a higher education school under full-time study programmes.

8. It has been mentioned that the petitioner also doubts regarding the compliance of Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment with the Constitution.

8.1. It should be noted that Paragraph 4 (with the amendment of 6 June 2017) of Article 24 “Grounds for Suspending, Restoring and Revoking the Status of the Unemployed” of the Law on Employment establishes the following:

The status of the unemployed shall be cancelled if at least one of the circumstances listed below arise:

(1) labour relations or legal relations deemed to be equal to labour relations that are open-ended or last for more than 6 months arise, except for participation in the subsidised employment measures and measures to support the work skills acquisition, or an unemployed person commences registered individual activities and engages in them for a period longer than 6 months, or establishes a sole proprietor company, or becomes a member of a small partnership, a general partnership or a limited partnership, or renews suspended activities of a sole proprietor company, or becomes a member of a small partnership, a general partnership or a limited partnership, or otherwise commences activities upon establishment of a legal person or another organisational structure or activities otherwise related to the activities of the legal person as specified in Article 7 of this Law;

(2) an unemployed person registers a farm in the Register of Farms or becomes a farmer’s partner or registers an agricultural holding in the Register of Agricultural and Rural Business of the Republic of Lithuania, or becomes a partner of an agricultural holding;

(3) an unemployed person reaches the statutory old-age pension age or is recognised as incapable for work;

(4) an unemployed person starts studying under a general education programme or a formal vocational education programme except for the unemployed persons who study under adults’ primary, basic or secondary education programmes, the unemployed persons who finance their studies under a formal vocational education programme themselves, or the unemployed persons who take part in the learning support measures or start studying at a higher education establishment under a full-time study programme;

(5) an unemployed person refuses, without a valid reason, a suitable job as stated in Article 30(2) below, or from the drawing up of an individual plan on employment activities, or from participation in the active labour market policy measures included in the individual plan on employment activities or programmes on increasing employment, or from using the labour market services provided in such plan;

(6) an unemployed person fails to present himself/herself, without a valid reason, to an appointment at the local labour exchange for accepting a job offer, or for drawing up of an individual plan on employment activities, or for participating in the active labour market policy measures included in the individual plan on employment activities or programmes on increasing employment, or for using the labour market services provided in such plan;

(7) an unemployed person, without a valid reason, is not seeking a job according to a procedure prescribed by the Government of the Republic of Lithuania or an institution authorised by it and fails to carry out activities referred to in Article 5(3) of this Law and/or violates the procedure for reporting on individual job search more than once;

(8) an unemployed person, without a valid reason, stops participating in the learning support measures or supported employment measures or, on completion of vocational training, refuses employment or self-employment according to the acquired and/or improved qualifications, or terminates the employment contract or self-employment activities within 6 months from the date of commencing employment or self-employment;

(9) the local labour exchange repeatedly receives, within 12 months, from institutions exercising control and prevention of illegal work, undeclared employment and undeclared self-employment, information that the unemployed person has received income illegally and/or is working illegally or is engaging in income-generating illegal activities;

(10) the validity of the permit entitled an unemployed person to reside in the Republic of Lithuania has expired;

(11) a court decision, order or judgement whereby a penalty including an administrative penalty, or sanctions or coercive procedural or medical measures are imposed on an unemployed person, as a result of which he/she is unable to work and/or continue a job search at a local labour exchange;

(12) an unemployed person declares, according to a procedure prescribed by law, emigration from the Republic of Lithuania except for the period provided for in the European Union regulations on the coordination of social security systems in which he/she receives the unemployment social security benefit;

(13) an unemployed person has filed an application for cancelling his/her registration with the local labour exchange;

(14) an unemployed person has died”.

8.2. Consequently, the grounds for revoking the status of an unemployed person established in Paragraph 4 (with the amendment of 6 June 2017) of Article 24 of the Law on Employment are, inter alia, related to the the disappearance of the conditions for the acquisition of the status of an unemployed person specified in Paragraph 1 (with the amendment of 6 June 2017) of Article 22 of the Law on Employment (such as the revocation of the status of an unemployed person when he/she reaches old-age pension age or is recognised as incapable for work, becomes subject to legal relations deemed to be equal to employment relations, does not actively seek employment without a valid reason). The ground for the revocation of the status of an unemployed person established in Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment, which is impugned in this constitutional justice case, is linked to the condition for the acquisition of the status of an unemployed person established in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, which is that the status of an unemployed person is revoked if he/she starts studying at a higher education school under a full-time study programme, i.e. no longer meets the condition prescribed in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment.

9. It should be noted that the Law on Employment, inter alia, Articles 22 and 24 thereof, has been amended on more than one occasion, inter alia, by the Republic of Lithuania’s Law Amending Articles 13, 16, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 35, 36, 37, 38, 39, 391, 40, 41, 44, 45, 47, 48, and 49 of the Law on Employment (No XII-2470), which was adopted on 21 December 2017 by the Seimas and whose Article 4 set out Article 22 (with the amendment of 6 June 2017) of the Law on Employment in a new wording; however, the legal regulation impugned in the constitutional justice case at issue did not change in the aspect relevant for this case.

10. The impugned provisions of Paragraph 1 of Article 22 and Paragraph 4 of Article 24 of the Law on Employment should be interpreted in conjunction with the legal regulation consolidated in Article 53 of the Law on Science and Studies, which was amended and set out in a new wording by the Republic of Lithuania’s Law Amending the Law on Science and Studies (No XI-242), as adopted by the Seimas on 29 June 2016.

10.1. Paragraph 3 of Article 53 “Requirements for carrying out the first and second cycle, integrated and professional studies” (wording of 29 June 2016) of the Law on Science and Studies established that studies may be of two forms (full-time and part-time); however, irrespective of the form of the completed studies, the acquired education in both cases is equivalent. Under Paragraph 4 of Article 53 (wording of 29 June 2016) of this law, the regular volume of studies of a full-time form for one year was 60 credits, but not less than 45 credits; and the volume of studies of a part-time form for one year could be less than 45 credits and the total duration of studies of this form could not last one and a half times longer than studies of a full-time form to which a norm of 60 credits was applied.

Article 53 (wording of 29 June 2016) of the Law on Science and Studies was amended and set out in a new wording by the Republic of Lithuania’s Law Amending Articles 4, 10, 11, 48, 52, 53, 59, 77, 78, 79, and 82 of the Law on Science and Studies (No XI-242), which was adopted by the Seimas on 20 November 2018; however, the legal regulation established in Paragraphs 3 and 4 of Article 53 (wording of 29 June 2016) of this law did not change in the aspect relevant for the constitutional justice case at issue.

10.2. In this context, it should be mentioned that sub-Item 19.1 of the Description of the Requirements for the Implementation of General Studies, approved by the order (V-1168) of the Minister of Education and Science of the Republic of Lithuania of 30 December 2016, establishes, among other things, that full-time studies are the main form in which studies are organised, and, under Item 20 of this description, the results of the studies, the amount of credits and the amount of contact work provided for in the study programmes approved by the higher education institutions are the same, irrespective of the form of the studies; full-time studies are conducted in accordance with a plan or individual study plan approved for the duration of the studies, which are drawn up on the basis of the expected results of the studies, the student safety and health requirements approved by the higher education institution, and the possibility for students to combine studies with professional and/or other employment.

10.3. In this context, it should also be noted that under Item 2 of Paragraph 1 of Article 62 “Rights and duties of students” (wording of 29 June 2016) of the Law on Science and Studies, the right to study pursuant to an individual plan of studies (in accordance with the procedure laid down by the senate) is granted to all students, i.e. irrespective of their chosen form of studies.

10.4. Therefore, the conclusion should be drawn that under the impugned legal regulation established in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of this law, which is interpreted in conjunction with the legal regulation established in Article 53 (wording of 29 June 2016) of the Law on Science and Studies, under which, as mentioned before, studies at higher education schools may be of two forms (full-time and part-time), both the acquisition of the status of an unemployed person and the revocation of this status are linked not to the fact that a person is enrolled in higher education school but to the form of studies in higher education school, i.e. only those persons, who chose part-time study programmes and who also meet other conditions established in Paragraph 1 (with the amendment of 6 June 2017) of Article 22 of the Law on Employment, may acquire and maintain the status of an unemployed person.

11. In the context of the constitutional justice case at issue, it should also be noted that the impugned provisions of Paragraph 1 of Article 22 and Paragraph 4 of Article 24 of the Law on Employment should be interpreted in the light, among other things, of the legal regulation consolidated in the Law on Unemployment Social Insurance (which was set out in a new wording by the Republic of Lithuania’s Law Amending the Law on Unemployment Social Insurance (No IX-1904) adopted by the Seimas on 21 June 2016, which, inter alia, established the subjects entitled to the right to receive unemployment insurance benefits.

11.1. Article 2 “Unemployment insurance” (wording of 21 June 2016) of the Law on Unemployment Social Insurance established that unemployment insurance is a type of social insurance, which, in cases set by laws, compensates persons covered by this type of insurance for their loss of income due to unemployment or of a part of it and/or compensates for the measures of the active labour market policy established by the Law on Employment.

Article 2 (wording of 21 June 2016) of the Law on Unemployment Social Insurance was amended and set out in a new wording by the Republic of Lithuania’s Law Amending Articles 2, 3, 6, 8, 13, 15, and 19 of the Law on Unemployment Social Insurance (No IX-1904), which was adopted by the Seimas on 28 June 2018. Article 2 of the Law on Unemployment Social Insurance, set out in the wording of 28 June 2018, prescribes: “Unemployment insurance shall be a type of social insurance. In cases set by laws, unemployment insurance compensates persons covered by this type of insurance for their loss of income due to unemployment or of a part of it.”

Thus, under the legal regulation laid down in Article 2 of the Law on Unemployment Social Insurance, the main purpose of unemployment social insurance is to compensate persons for their loss of income due to unemployment or of a part of it.

11.2. Paragraph 1 (with the amendment of 6 June 2017) of Article 5 “Entitlement to the Unemployment Insurance Benefit” of the Law on Unemployment Social Insurance established:

Insured persons referred to in Article 4 of this Law, who are registered as unemployed at a local labour exchange and who have not been offered by the territorial labour exchange a suitable job or active labour market policy measures, shall be entitled to the unemployment insurance benefit if they meet at least one of the following conditions:

(1) to have completed the unemployment social insurance period of not less than 12 months during the last 30 months before registration on a territorial labour exchange;

(2) has completed mandatory initial military service or alternative national defence service or has been released from mandatory initial military service during which he has acquired basic military training.”

Article 5, inter alia, Paragraph 1 thereof, was amended and set out in its new wording by the Republic of Lithuania’s Law Amending Articles 5, 6, 8, 10, and 11 of the Law on Unemployment Social Insurance (No IX-1904), which was adopted by the Seimas on 21 December 2017; the words “a territorial labour exchange” were replaced by “the Employment Services”.

Therefore, under the legal regulation established in Paragraph 1 (with the amendment of 6 June 2017) of Article 5 of the Law on Unemployment Social Insurance, the persons who have the status of an unemployed person and who have not been offered, by the territorial labour exchange, a suitable job or active labour market policy measures, are entitled to the unemployment insurance benefit if they meet at least one of the established conditions, inter alia, meet the condition established in Item 1 of Paragraph 1 of this article to have completed the unemployment social insurance period of not less than 12 months during the last 30 months. It should be noted that the persons who do not meet the condition for the acquisition of the status of an unemployed persons not to study at a higher education school under full-time study programmes, which is established in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, do not have the right to the unemployment insurance benefit under Paragraph 1 (with the amendment of 6 June 2017) of Article 5 of the Law on Unemployment Social Insurance, although they meet the condition established in Item 1 of Paragraph 1 of this article to have completed the unemployment social insurance period of not less than 12 months during the last 30 months.

11.3. In this context, it should be noted that Paragraph 2 (wording of 6 June 2017) of Article 7 “Duration and procedure of payment of the unemployment insurance benefit” of the Law on Unemployment Social Insurance established that the unemployment insurance benefit is paid for 9 months.

Thus, under the legal regulation established in Paragraph 2 (wording of 6 June 2017) of Article 7 of the Law on Unemployment Social Insurance, the unemployment insurance benefit compensates a person for his/her loss of income due to unemployment or of a part of it just for a limited period of time (9 months).

11.4. Under Paragraph 2 of Article 9 (wording of 21 June 2016) of the Law on Unemployment Social Insurance, the payment of the unemployment insurance benefit is terminated, when, under the procedure established by the Law on Employment, the status of an unemployed person is revoked for the unemployed person, the period of payment of the unemployment insurance benefit for an unemployed person expires and is not subject to extension in accordance with the procedure established by this law.

Thus, under Paragraph 2 of Article 9 (wording of 21 June 2016) of the Law on Unemployment Social Insurance, the payment of the unemployment insurance benefit is terminated, inter alia, upon the revocation of the status of an unemployed person granted on the ground established in Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment – if a person starts studying at a higher education school under a full-time study programme, i.e. as mentioned before, he/she no longer meets the condition prescribed in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, regardless of the fact whether or not the person meets the condition established in Item 1 (wording of 6 June 2017) of Paragraph 1 of Article 5 of the Law on Unemployment Social Insurance to have completed the unemployment social insurance period of not less than 12 months during the last 30 months.

12. While summing up the impugned legal regulation established in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of this law and the related legal regulation in the context of this constitutional justice case, it should be noted that, under this legal regulation:

the condition for the acquisition and retaining of the status of an unemployed person established in impugned Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment is that a person is not studying at a higher education school under full-time study programmes;

according to the legal regulation established in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of this law, both the acquisition of the status of an unemployed person and the revocation of the status of an unemployed person are not linked to the actual fact of studying at a school of higher education, but to the form of studies, i.e. only the persons who have chosen part-time study programmes, who also fulfil the other conditions (inter alia, to be of working age and capable of working, not to have employment, and to be actively seeking it) laid down in Paragraph 1 (with the amendment of 6 June 2017) of Article 22 of the Law on Employment, may have and retain the status of an unemployed person;

the persons who do not meet the condition for the acquisition of the status of an unemployed person not to study at a higher education school under full-time study programmes, which is established in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, do not have the right to the unemployment insurance benefit under Paragraph 1 (with the amendment of 6 June 2017) of Article 5 of the Law on Unemployment Social Insurance, although they have not been offered by the territorial labour exchange a suitable job or active labour market policy measures and meet the condition established in Item 1 of Paragraph 1 of this article to have completed the unemployment social insurance period of not less than 12 months during the last 30 months;

under Paragraph 2 of Article 9 (wording of 21 June 2016) of the Law on Unemployment Social Insurance, the payment of the unemployment insurance benefit is terminated, inter alia, upon the revocation of the status of an unemployed person granted on the ground established in Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment – if a person starts studying at a higher education school under a full-time study programme, i.e. as mentioned before, he/she no longer meets the condition prescribed in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, regardless of the fact whether or not the person meets the condition established in Item 1 (wording of 6 June 2017) of Paragraph 1 of Article 5 of the Law on Unemployment Social Insurance to have completed the unemployment social insurance period of not less than 12 months during the last 30 months.

II

The legal regulation laid down in European Union legal acts

13. The provisions of the European Union legal acts related to the concept of an unemployed person are relevant in the context of this constitutional justice case.

13.1. In defining the notion of unemployment, Paragraph 1 of Article 1 of Annex I “Labour force survey: definition of unemployment” to the Commission Regulation (EC) No 1897/2000 of 7 September 2000 implementing Council Regulation (EC) No 577/98 on the organisation of a labour force sample survey in the Community (hereinafter referred to as the Commission Regulation (EC) No 1897/2000) established that in accordance with the ILO standards adopted by the 13th and 14th International Conference of Labour Statisticians (ICLS), for the purposes of the Community labour force sample survey, unemployed persons comprise persons aged 15 to 74 who were:

(a) without work during the reference week, i.e. neither had a job nor were at work (for one hour or more) in paid employment or self-employment;

b) currently available for work, i.e. were available for paid employment or self-employment before the end of the two weeks following the reference week;

(c) actively seeking work, i.e. had taken specific steps in the four week period ending with the reference week to seek paid employment or self-employment or who found a job to start later, i.e. within a period of at most three months.

13.2. Paragraph 2 of Article 1 of Annex I to the Commission Regulation (EC) No 1897/2000 prescribes that for the purposes of point 1(c), the following are considered as specific steps:

having been in contact with a public employment office to find work, whoever took the initiative (renewing registration for administrative reasons only is not an active step),

having been in contact with a private agency (temporary work agency, firm specialising in recruitment, etc.) to find work,

applying to employers directly,

asking among friends, relatives, unions, etc., to find work,

placing or answering job advertisements,

studying job advertisements,

taking a recruitment test or examination or being interviewed,

looking for land, premises or equipment,

applying for permits, licences or financial resources.

13.3. In this context, it should also be noted that, according to Article 2 of Annex I to the Commission Regulation (EC) No 1897/2000, education and training are considered as ways of improving employability but not as methods of seeking work; persons without work and in education or training will only be classified as unemployed if they are “currently available for work” and “seeking work”, as defined in points 1(b) and (c).

13.4. In summing up the legal regulation set out in the Commission Regulation (EC) No 1897/2000 in the aspect relevant in the constitutional justice case at issue, it should be noted that, under this legal regulation:

a person aged 15 to 74 who is actively seeking work by all means available to him/her is to be considered an unemployed person;

a person in education or training may be classified as unemployed if he/she meets other criteria raised for a person who seeks to acquire the status of an unemployed person, i.e. is seeking employment and available to work.

III

The provisions of the Constitution and the official constitutional doctrine

14. In the constitutional justice case at issue, the Constitutional Court investigates the compliance of Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, insofar as it establishes that an unemployed person is considered to be a person who does not study at a higher education establishment under a full-time study programme, and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of this law, insofar as it establishes that the status of an unemployed person is revoked if he/she starts studying at a higher education establishment under a full-time study programme, with Article 29, the provision “Higher education shall be accessible to everyone according to individual abilities” of Paragraph 3 of Article 41, and Article 52 of the Constitution, as well as with the constitutional principle of the protection of legitimate expectations.

15. Article 52 of the Constitution prescribes: “The State shall guarantee its citizens the right to receive old-age and disability pensions, as well as social assistance in the event of unemployment, sickness, widowhood, the loss of the breadwinner, and in other cases provided for by law.”

15.1. When interpreting Article 52 of the Constitution, the Constitutional Court has held that, under the Constitution, each citizen has the right to receive social security and that the social assistance referred to in this article of the Constitution is one of the forms of social security (the Constitutional Court’s ruling of 25 November 2002); the measures of social security express the idea of social solidarity (the Constitutional Court’s ruling of 12 March 1997).

15.2. The formula “the state shall guarantee” as used in Article 52 of the Constitution, inter alia, means that pensions and various types of social assistance are guaranteed for persons on the grounds and in the amounts that are established in laws (inter alia, the Constitutional Court’s rulings of 6 February 2012 and 22 February 2013); however, the emergence of the right of a person to social assistance guaranteed in the Constitution may not be linked to constitutionally unjustified conditions (the Constitutional Court’s ruling of 7 February 2005). Under the Constitution, inter alia, Article 52 thereof, the legislature, when regulating the relations of social assistance in the event of unemployment, which is one of the types of social assistance, must establish such a legal regulation that would ensure that persons who, due to certain reasons, have lost their employment, would receive adequate social assistance; the same legal regulation must, inter alia, also establish certain sufficient measures for the implementation of the right to social assistance in the event of unemployment (the Constitutional Court’s ruling of 14 February 2014).

15.3. In the context of this constitutional justice case, it should be noted that the legislature, when establishing, subsequent to Article 52 of the Constitution, the constitutional measures for the implementation of the right to social assistance in the event of unemployment, may choose various models for the provision of this support, inter alia, based on social insurance. As it was held in the Constitutional Court’s rulings of 12 March 1997 and 15 February 2013, the purpose of social insurance is to provide persons with funds and services necessary for living if, for reasons established by law, they are unable to subsist on their earned income or other income or, for reasons established by law, they have additional expenses. The statutory system of social insurance makes sense only in the case when it ensures the constitutional right to social security for the persons who are unable to subsist on their earned income or other income or, for reasons established by law, they have additional expenses (the Constitutional Court’s ruling of 12 March 1997).

16. In its ruling of 7 February 2013, the Constitutional Court noted that Article 52 of the Constitution, which, inter alia, lays down the grounds for social assistance, should be interpreted in conjunction with Paragraph 1 of Article 48 of the Constitution, which establishes: “Everyone [...] shall have the right [...] to receive [...] social security in the event of unemployment”.

It should be noted that Paragraph 1 if Article 48 of the Constitution, inter alia, consolidates the right of every person to receive social security in the event of unemployment, which includes, inter alia, the right to receive social assistance guaranteed by the state under Article 52 of the Constitution.

17. In interpreting Article 52 of the Constitution in conjunction with Paragraph 1 of Article 48 of the Constitution, the Constitutional Court has held that:

if, due to certain reasons, a person loses his/her job and cannot take care of his/her welfare, the duty arises for the state to establish such a legal regulation under which social assistance would be ensured for such a person in the event of unemployment; the legislature may choose and consolidate in laws a model for the provision of the said support; however, the legislature must not establish any such legal regulation that would create the preconditions for the emergence of such a situation where persons who, due to certain reasons, have lost their employment would not receive adequate social assistance (inter alia, the Constitutional Court’s ruling of 7 February 2013 and its decision of 10 January 2019).

the principle of solidarity in civil society, which is consolidated in the Constitution, does not deny personal responsibility for one’s own fate; therefore, the legal regulation of social security should be such that would create the preconditions and incentives for all members of society to take care of their own welfare by themselves rather than to rely solely on social security guaranteed by the state (inter alia, the Constitutional Court’s rulings of 6 February 2012, 7 February 2013, and 26 May 2015);

social assistance must not become a privilege; it must not create any preconditions for a person not to seek higher income and not to search, by one’s own efforts, for possibilities of ensuring for oneself and one’s own family the living conditions that are in line with human dignity (the Constitutional Court’s ruling of 7 February 2013).

18. The Constitutional Court has held that Article 52 of the Constitution, which, inter alia, lays down the grounds for social assistance, should be interpreted in conjunction with the constitutional principle of a state under the rule of law, as well as with other related norms and principles of the Constitution (the Constitutional Court’s ruling of 7 February 2013), inter alia, with the principles of the equality of the rights of persons, proportionality, the protection of legitimate expectations, legal certainty, and legal security (the Constitutional Court’s ruling of 6 February 2012).

18.1. In its acts, the Constitutional Court has held on more than one occasion that the constitutional principle of the equality of the rights of persons consolidates the formal equality of all persons, imposes the obligation to legally assess homogeneous facts in the same manner and prohibits any arbitrary assessment of essentially the same facts in a different manner, and does not allow any discrimination of persons or granting them privileges (inter alia, the Constitutional Court’s rulings of 10 November 2005, 8 March 2018, and 21 December 2018); this principle also implies the duty of the legislature to establish an equal (non-differentiated) legal regulation with regard to certain categories of persons who are in the same situation if between the said categories of persons there are no differences of such a nature and to such an such extent that would objectively justify their uneven treatment (inter alia, the Constitutional Court’s rulings of 22 February 2013, 6 February 2015, and 19 September 2019).

18.2. The Constitutional Court has also held than the principle of proportionality means that the measures provided for by law must be in line with legitimate objectives that are important to society, that such measures must be necessary in order to reach the said objectives, and that such measures must not restrict the rights and freedoms of a person clearly more than necessary in order to reach the said objectives (inter alia, the Constitutional Court’s rulings of 11 December 2009, 14 February 2014, and 19 September 2019).

18.3. The Constitutional Court has held on more than one occasion that legal certainty, legal security, and the protection of legitimate expectations imply the duty of the state to ensure the certainty and stability of any legal regulation, to protect the rights of persons, to respect legitimate interests and legitimate expectations, and to fulfil any obligations assumed to a person; if they 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, 20 June 2016, 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 (inter alia, the Constitutional Court’s rulings of 4 July 2003, 24 May 2013, and 21 December 2018).

18.4. As the Constitutional Court has held, the constitutional principle of a state under the rule of law, in addition to other requirements, also implies that human rights and freedoms must be ensured (inter alia, the Constitutional Court’s rulings of 23 February 2000, 9 October 2013, and 20 December 2013). The official constitutional doctrine of human rights is based on the principled provision that, under the Constitution, it is not allowed to establish any such legal regulation by which a person, in implementing a certain constitutional right, would lose the possibility of implementing another constitutional right (inter alia, the Constitutional Court’s rulings of 30 June 2000, 25 November 2002, and 6 February 2012).

19. While summing up, in the aspect relevant in the constitutional justice case at issue, the said provisions of the official constitutional doctrine, it should be noted that, under the Constitution, inter alia, the provision of Article 52 thereof, that the state guarantees its citizens the right to receive social assistance in the event of unemployment, the legislature has discretion to choose and establish in laws a model of this social assistance, inter alia, the grounds and conditions for its provision. Having chosen a model of provision of social assistance based on unemployment social insurance, the legislature must ensure that the constitutional right, consolidated, as mentioned before, in Paragraph 1 of Article 48 and Article 52 of the Constitution, to social assistance in the event of unemployment is effectively ensured for persons, if they have contributed to this social insurance to the extent prescribed by law, in cases when these persons lose employment but are actively seeking it and are unable to find it due to objective reasons.

It should be emphasised that the Constitution, inter alia, Paragraph 1 of Article 48, as well as Article 52 thereof, gives rise to the requirement for the legislature to regulate the provision of social assistance in the event of unemployment in such a manner that persons, upon losing their employment, could not rely solely on social assistance guaranteed by the state, but the preconditions and incentives would be created for these persons for actively seeking employment, and thereby the state would contribute to ensuring the conditions in line with human dignity for the life of these persons and their families.

It should also be noted that, when the provision of social assistance in the event of unemployment is regulated by means of a law, regard must be paid, inter alia, to the requirements implied by the constitutional principle of a state under the rule of law. This, among other things, means that, while regulating the provision of social assistance by means of a law, it is impermissible to prescribe that the exercise of the constitutional right to social assistance in the event of unemployment be subject to constitutionally unjustifiable conditions, which would create the preconditions for the situation to appear in which a person who has lost employment but is actively seeking it and is unable, due to objective reasons, to find it would not receive respective social assistance.

20. As mentioned before, the petitioner impugns the compliance of Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of this law, inter alia, with the provision “Higher education shall be accessible to everyone according to individual abilities” of Paragraph 3 of Article 41 of the Constitution.

As it has been held by the Constitutional Court, under Paragraph 3 of Article 41, which establishes that higher education is accessible to everyone according to individual abilities, everyone has the right to higher education. This constitutional human right is an important condition for implementing various rights and legitimate expectations of an individual and implies the duty of the state to create the preconditions for implementing this right (inter alia, the Constitutional Court’s rulings of 14 January 2002, 7 June 2007, and 20 March 2008).

IV

The assessment of the compliance of Item 5 (wordings of 6 June 2017 and 21 December 2017) of Paragraph 1 of Article 22 and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment with the Constitution

21. It has been mentioned that, in the constitutional justice case at issue, it is investigated whether the following are in conflict with Article 29, the provision “Higher education shall be accessible to everyone according to individual abilities” of Paragraph 3 of Article 41, and Article 52 of the Constitution, as well as with the constitutional principle of the protection of legitimate expectations:

Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, insofar as it establishes that an unemployed person is considered to be a person who does not study at a higher education establishment under a full-time study programme;

Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment, insofar as it establishes that the status of an unemployed person is revoked if he/she starts studying at a higher education establishment under a full-time study programme.

22. In the opinion of the petitioner, the impugned legal regulation, to the specified extent, unduly restricts the right of a person to an unemployment benefit and the right of a person to higher education, as it implies a situation where a person seeking to exercise the constitutional right to higher education loses the right to an unemployment insurance benefit, although he/she could make use of the right to an unemployment insurance benefit under all other established criteria.

The petitioner also has doubts over the impugned legal regulation, insofar as it could lead to discrimination against persons studying under full-time study programmes compared with persons studying under part-time study programmes.

In addition, according to the petitioner, a person who pays social insurance contributions has the right to reasonably expect that, if necessary, he/she will receive certain support (in this case, an unemployment insurance benefit) and that there will be no preconditions created for disproportionately complicating the implementation of the right to receive this support in the event of unemployment. In the light of the above, according to the petitioner, the constitutional principle of the protection of legitimate expectations is violated.

23. While deciding regarding the compliance of the impugned legal regulation with the Constitution, it should be noted that, as mentioned before:

under the Constitution, inter alia, the provision of Article 52 thereof, the state guarantees its citizens the right to receive social assistance in the event of unemployment and the legislature has discretion to choose and establish in laws a model of this social assistance, inter alia, the grounds and conditions for its provision;

having chosen a model of provision of social assistance based on unemployment social insurance, the legislature must ensure that the constitutional right, consolidated in Paragraph 1 of Article 48 and Article 52 of the Constitution, to social assistance in the event of unemployment is effectively ensured for persons, if they have contributed to this social insurance to the extent prescribed by law, in cases when these persons lose employment but are actively seeking it and are unable to find it due to objective reasons;

the Constitution, inter alia, Paragraph 1 of Article 48, as well as Article 52 thereof, gives rise to the requirement for the legislature to regulate the provision of social assistance in the event of unemployment in such a manner that persons, upon losing their employment, could not rely solely on social assistance guaranteed by the state, but the preconditions and incentives would be created for these persons for actively seeking employment, and thereby the state would contribute to ensuring the conditions in line with human dignity for the life of these persons and their families;

when the provision of social assistance in the event of unemployment is regulated by means of a law, regard must be paid, inter alia, to the requirements implied by the constitutional principle of a state under the rule of law; this, among other things, means that it is impermissible to prescribe that the exercise of the constitutional right to social assistance in the event of unemployment be subject to constitutionally unjustifiable conditions, which would create the preconditions for the situation to appear in which a person who has lost employment but is actively seeking it and is unable, due to objective reasons, to find it would not receive the respective social assistance.

In the context of the constitutional justice case at issue, it should be noted that it would be constitutionally unjustifiable to establish such a condition whereby, upon losing employment, a person implementing the constitutional right to higher education and, at the same time, seeking to exercise the constitutional right to social assistance in the event of unemployment would be compelled to choose a particular form of studies at a higher education school, even though, upon choosing another form of studies, the person would equally be able to combine studies with professional and/or another type of employment.

24. It has also been mentioned that under the impugned legal regulation established in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of this law and the related legal regulation:

the impugned Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of this law establish the condition for the acquisition and retaining of the status of an unemployed person which is that a person is not studying at a higher education school under full-time study programmes;

according to the legal regulation established in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of this law, both the acquisition of the status of an unemployed person and the revocation of the status of an unemployed person are not linked to the actual fact of studying at a school of higher education, but to the form of studies, i.e. only the persons who have chosen part-time study programmes, who also fulfil the other conditions (inter alia, to be of working age and capable of working, not to have employment, and to be actively seeking it) laid down in Paragraph 1 (with the amendment of 6 June 2017) of Article 22 of the Law on Employment, may have and retain the status of an unemployed person;

the persons who do not meet the condition for the acquisition of the status of an unemployed persons not to study at a higher education school under full-time study programmes, which is established in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, do not have the right to the unemployment insurance benefit under Paragraph 1 (with the amendment of 6 June 2017) of Article 5 of the Law on Unemployment Social Insurance, although they have not been offered by the territorial labour exchange a suitable job or active labour market policy measures and meet the condition established in Item 1 of Paragraph 1 of this article to have completed the unemployment social insurance period of not less than 12 months during the last 30 months;

under Paragraph 2 of Article 9 (wording of 21 June 2016) of the Law on Unemployment Social Insurance, the payment of the unemployment insurance benefit is terminated, inter alia, upon the revocation of the status of an unemployed person granted on the ground established in Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment – if a person starts studying at a higher education school under a full-time study programme, i.e. as mentioned before, he/she no longer meets the condition prescribed in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, regardless of the fact whether or not the person meets the condition established in Item 1 (wording of 6 June 2017) of Paragraph 1 of Article 5 of the Law on Unemployment Social Insurance to have completed the unemployment social insurance period of not less than 12 months during the last 30 months.

25. Thus, Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of this law, and Paragraph 1 (with the amendment of 6 June 2017) of Article 5 of the Law on Unemployment Social Insurance provide for a different legal regulation with respect to persons studying under full-time study programmes and persons studying under part-time study programmes, insofar as the acquisition and retaining of the status of an unemployed person and the right to an unemployment insurance benefit are concerned.

It should be noted that, under the legal regulation established in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of this law and the related legal regulation, the sole choice of the full-time form of studies at a higher education school determines that the person who has lost employment but meets other conditions established by law (inter alia, is of working age and capable of working and is actively seeking employment) is precluded from acquiring the status of an unemployed person and the right to receive an unemployment insurance benefit, or must lose such a status, while the payment of the unemployment insurance benefit granted and/or paid to this person must be terminated at the same time.

It should also be noted that, under the impugned and related legal regulation, a person who has lost employment faces the said consequences solely because of choosing to study under a full-time study programme, despite the fact that the person, inter alia, independently and by making use of the labour market services provided by the territorial labour exchange, is seeking employment, as required under Item 6 of Paragraph 1 of Article 22 of the Law on Employment, in order to acquire the status of an unemployed person, as well as despite the fact that no suitable employment opportunities or measures of the active labour market policy have been offered to the person, as required, in order that the person could qualify for an unemployment insurance benefit, and despite the fact that this person meets the condition, provided established in Item 1 (wording of 6 June 2017) of Paragraph 1 of Article 5 of the Law on Unemployment Social Insurance, for qualifying for an unemployment insurance benefit – to have completed the unemployment social insurance period of not less than 12 months during the last 30 months.

In this context, it should also be noted that, as mentioned before, under Article 53 (wording of 29 June 2016) of the Law on Science and Studies, studies at higher education schools may be of two forms (full-time and part-time); however, irrespective of the form of the completed studies, the acquired education in both cases is equivalent; under Item 2 of Paragraph 1 of Article 62 (wording of 29 June 2016) of the Law on Science and Studies, the right to study pursuant to an individual plan of studies is granted to all students, i.e. irrespective of their chosen form of studies. Thus, although the law makes provision for different forms of studies, there is no ground for holding that their legal regulation lacks preconditions for combining any of these forms of studies with professional and/or another type of employment.

26. Taking account of this, it should be held that the legal regulation consolidated in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment, under which the sole choice of the full-time form of studies at a higher education school determines that the person who has lost employment but meets other conditions established by law is precluded from acquiring the status of an unemployed person and the right to receive an unemployment insurance benefit, or must lose such a status, while the payment of the unemployment insurance benefit granted and/or paid to this person must be terminated at the same time, created the preconditions for the situation to appear in which, having contributed to social insurance to the extent prescribed by law, a person who has lost employment but is actively seeking it and is unable, due to objective reasons, to find it does not receive the respective social assistance.

27. Therefore, while implementing the discretion stemming from Article 52 of the Constitution to establish in laws the conditions for the provision of social assistance in the event of unemployment, having established the legal regulation in Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment, under which the acquisition and revocation of the status of an unemployed person, thus also the entitlement to and loss of the right to an unemployment insurance benefit, are determined solely by the choice of a form of studies at a higher education school, the legislature disregarded the requirement, stemming from the provision of Paragraph 1 of Article 48 of the Constitution, stipulating that everyone has the right to receive social security in the event of unemployment, the provision of Article 52 of the Constitution, providing that the state guarantees its citizens the right to receive social assistance in the event of unemployment, as well as the requirement stemming from the constitutional principle of a state under the rule of law, according to which, it is impermissible to prescribe that the exercise of the constitutional right to social assistance in the event of unemployment be subject to constitutionally unjustifiable conditions, which would create the preconditions for the situation in which a person who has lost employment but is actively seeking it and is unable, due to objective reasons, to find it would not receive the respective social assistance.

28. In the light of the foregoing arguments, the conclusion should be drawn that Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment, insofar as, under this item, an unemployed person is considered to be a person who does not study at a higher education school under a full-time study programme, was in conflict with the provision “Everyone [...] shall have the right [...] to receive [...] social security in the event of unemployment” of Paragraph 1 of Article 48 and the provision “The State shall guarantee its citizens the right to receive [...] social assistance in the event of unemployment” of Article 52 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

29. It has been mentioned that Article 4 of the Republic of Lithuania’s Law Amending Articles 13, 16, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 35, 36, 37, 38, 39, 391, 40, 41, 44, 45, 47, 48, and 49 of the Law on Employment (No XII-2470), which was adopted on 21 December 2017 by the Seimas, set out Article 22 (with the amendment of 6 June 2017) of the Law on Employment in a new wording; however, the legal regulation impugned in the constitutional justice case at issue did not change in the aspect relevant for this case.

Thus, having held in this ruling of the Constitutional Court that Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment was, to the specified extent, in conflict with the provision “Everyone [...] shall have the right [...] to receive [...] social security in the event of unemployment” of Paragraph 1 of Article 48 and the provision “The State shall guarantee its citizens the right to receive [...] social assistance in the event of unemployment” of Article 52 of the Constitution, as well as with the constitutional principle of a state under the rule of law, on the grounds of the same arguments, it should also be held that also Item 5 of Paragraph 1 of Article 22 (wording of 21 December 2017) of the Law on Employment is, to the specified extent, in conflict with the provision “Everyone [...] shall have the right [...] to receive [...] social security in the event of unemployment” of Paragraph 1 of Article 48 and the provision “The State shall guarantee its citizens the right to receive [...] social assistance in the event of unemployment” of Article 52 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

30. Having held that Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 of the Law on Employment was, to the specified extent, in conflict with the provision “Everyone [...] shall have the right [...] to receive [...] social security in the event of unemployment” of Paragraph 1 of Article 48 and the provision “The State shall guarantee its citizens the right to receive [...] social assistance in the event of unemployment” of Article 52 of the Constitution, as well as with the constitutional principle of a state under the rule of law, on the grounds of the same arguments, it should also be held that Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment, insofar as it establishes that the status of an unemployed person is revoked if he/she starts studying at a higher education establishment under a full-time study programme, is in conflict with the provision “Everyone [...] shall have the right [...] to receive [...] social security in the event of unemployment” of Paragraph 1 of Article 48 and the provision “The State shall guarantee its citizens the right to receive [...] social assistance in the event of unemployment” of Article 52 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

In view of the above, the conclusion should be drawn that Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment, insofar as it establishes that the status of an unemployed person is revoked if he/she starts studying at a higher education establishment under a full-time study programme, is in conflict with the provision “Everyone [...] shall have the right [...] to receive [...] social security in the event of unemployment” of Paragraph 1 of Article 48 and the provision “The State shall guarantee its citizens the right to receive [...] social assistance in the event of unemployment” of Article 52 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

31. Having held this, the Constitutional Court will not further investigate whether the impugned provisions of Item 5 (wording of 6 June 2017) of Paragraph 1 of Article 22 and Item 4 (wording of 6 June 2017) of Paragraph 4 of Article 24 of the Law on Employment are, to the specified extent, in conflict with Article 29 and the provision “Higher education shall be accessible to everyone according to individual abilities” of Paragraph 3 of Article 41 of the Constitution.

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:

1. To recognise that Item 5 (wording of 6 June 2017, Register of Legal Acts, 14-06-2017, No 10024; wording of 21 December 2017, Register of Legal Acts, 29-12-2017, No 21627) of Paragraph 1 of Article 22 of the Republic of Lithuania’s Law on Employment, insofar as, under this item, an unemployed person is considered to be a person who does not study at a higher education school under a full-time study programme, was (is) in conflict with the provision “Everyone [...] shall have the right [...] to receive [...] social security in the event of unemployment” of Paragraph 1 of Article 48 and the provision “The State shall guarantee its citizens the right to receive [...] social assistance in the event of unemployment” of Article 52 of the Constitution of the Republic of Lithuania, as well as with the constitutional principle of a state under the rule of law.

2. To recognise that Item 4 (wording of 6 June 2017, Register of Legal Acts, 14-06-2017, No 10024) of Paragraph 4 of Article 24 of the Republic of Lithuania’s Law on Employment, insofar as it establishes that the status of an unemployed person is revoked if he/she starts studying at a higher education establishment under a full-time study programme, is in conflict with the provision “Everyone [...] shall have the right [...] to receive [...] social security in the event of unemployment” of Paragraph 1 of Article 48 and the provision “The State shall guarantee its citizens the right to receive [...] social assistance in the event of unemployment” of Article 52 of the Constitution of the Republic of Lithuania, as well as with 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

                                                                            Vytas Milius

                                                                            Daiva Petrylaitė

                                                                             Janina Stripeikienė

                                                                            Dainius Žalimas