The conclusion of successive fixed-term contracts with a person elected to the position of an associate professor or a professor, without ensuring protection against abuse of such contracts, is incompatible with the Satversme
On 7 June 2019, the Constitutional Court passed the judgement in case No. 2018-15-01 “On Compliance of Section 27 (5) and Section 30 (4) of the Law “On Institutions of Higher Education” with the First Sentence of Article 106 of the Satversme of the Republic of Latvia”.
The contested norms
Section 27 (5) of the law “On Institutions of Higher Education”: “The employment contract restrictions specified in Section 45 (1) of the Labour Law shall not apply to persons elected to academic positions. An employment contract with a person elected to an academic position (professor, associate professor, docent, lecturer or assistant) shall be entered into by the rector for the period of election – six years.”
Section 30 (4) of the law “On Institutions of Higher Education”: “In accordance with the provisions of Section 33 of this Law, associate professors shall be elected in an open competition for a time period of six years by a council of professors of the relevant field. On the basis of a decision made by the council of professors in a field, a rector shall enter into a contract of employment with an associate professor.”
In the course of hearing the case, in view of the close interconnection of the norms and the need to abide by the principles of legal proceedings before the Constitutional Court, the Constitutional Court decided to broaden the claim, reviewing also the constitutionality of Article 28 (2) of the law “On Institutions of Higher Education”. [10.2.] This legal norm provides: “In accordance with the provisions of Section 33 of this Law, a professor shall be elected in an open competition for a time period of six years, and a rector shall enter into a contract of employment with him or her for the whole period of election.”
The Norm of Higher Legal Force
The first sentence of Article 106 of the Satversme of the Republic of Latvia (hereafter – the Satversme): “Everyone has the right to freely choose their employment and workplace according to their abilities and qualifications.”
The Facts
The case was initiated on the basis of an application by Jānis Kārkliņš, Associate Professor of the University of Latvia. The applicant had been repeatedly elected to the position of an associate professor in the sub-branch of civil law in the field of legal science for the term of six years. Pursuant to Section 27 (5) and Section 30 (4) of the law “On Institutions of Higher Education”, an employment contract on performing the duties of an associate professor has been concluded between him and the University of Latvia for the term of six years.
The applicant notes that after this term expires a person must participate again in an open competition for this position. A new contract, on the basis of compliance with the qualification requirements and a positive vote by the council of professors of the respective field, must be concluded every time when the term of the previous contract expires. Fixed-term employment like this, in conditions where the applicant performs permanent and lasting work, allegedly, restricts his right to work, established in the first sentence of Article 106 of the Satversme. Although a legitimate aim of the restriction on fundamental rights included in the contested norms could be discerned, it is, nevertheless, said to be disproportional.
The Court’s Findings
On reviewing the contested norms as a united legal regulation
First of all, the Constitutional Court found that the contested norms were closely interconnected, i.e., it followed from them that a person was elected to the position of an associate professor or a professor for a period of six years, and the rector concluded an employment contract for the same period. Therefore the Constitutional Court examined the contested norms as a united legal regulation. [10.3.]
On incompatibility of the contested norms with the first sentence of Article 106 of the Satversme
On the scope of the first sentence of Article 106 of the Satversme and the existence of a restriction on fundamental rights
The Constitutional Court noted that the first sentence of Article 106 of the Satversme did not guarantee exactly the right to work but the right to freely choose one’s employment and workplace, inter alia, also to retain one’s current employment and workplace. However, this norm does not prohibit the State from setting requirements that a person must meet to take certain employment. [11.1]
The Constitutional Court recognised that the work of professorate, i.e., the totality of associate professors and professors, was closely related to the development of national and international science, training the young generation of scientists. Therefore, in the present case, the Constitutional Court took into account Article 113 of the Satversme, from, which, inter alia, the State’s obligation to respect, protect and ensure the freedom of academic, artistic and other creativity followed. The Constitutional Court underscored that the rights included in Article 113 of the Satversme could be fully exercised only in the conditions of academic freedom, which was an important pre-condition for the sustainable development of society. Whereas, for professorate, the workplace was one of the main procedural guarantees for freely exercising their academic freedom. [11.3.]
The Constitutional Court found that the contested norms restricted the applicant’s right included in the first sentence of Article 106 of the Satversme to retain one’s employment, which was characterised by academic freedom. [11.4.]
On whether the restriction on fundamental rights has been established by law and has a legitimate aim
The Constitutional Court recognised that the restriction on fundamental rights that followed from the contested norms had been established by law. [13.1., 13.2. and 13.3.]
The term, defined in the contested norm, for which a person is elected to the position of an associate professor or a professor and for which an employment contract is concluded with this person, is aimed at regular renewal of academic staff, thus, fostering the development of scientific research and artistic creativity. Higher education and science were indispensible pre-requisites for sustainable development of the state and society in general. Hence, the Constitutional Court concluded that the restriction on fundamental rights included in the contested norm had a legitimate aim – protection of public welfare. With young scientists joining the professorate, new scientific findings and views, needed by students, enter institutions of higher education. Hence, the Constitutional Court recognised also the protection of other persons’ rights as the legitimate aim of the restriction on fundamental rights included in the contested norms. [14., 14.1. and 14.2.]
On the appropriateness of the chosen measures for reaching the legitimate aims of the restriction
The Constitutional Court has analysed the procedure for electing an associate professor and a professor and has concluded that neither the contested norms nor any other norms that regulate the respective field envisage a secret ballot for electing a person to the position of an associate professor or a professor. The fact that the professorate is elected by the council of professors of the respective field by secret ballot has been determined in the recommendations of the Council of Higher Education for electing professors and associate professors and criteria for assessing the candidates’ qualifications. The Constitutional Court noted: an open vote by the council of professors of the field on the candidate’s suitability for the position of an associate professor or a professor would foster transparency and openness in the decision-making process and would reinforce confidence that the most suitable candidate had been chosen. At the same time, clearly defined and transparent criteria for assessing the research work and other academic achievements are of essential importance. [16.1.]
The Constitutional Court also recognised that scientific and research work was constant and continuous process, the progress in which depended, inter alia, also on the infrastructure and accessibility of resources as well as the professorate’s qualifications. Moreover, science can develop only in conditions of academic freedom, characterised by a constant dialogue between colleagues working in the respective field in Latvia and beyond. The Constitutional Court held that the measure chosen by the legislator – assessment of a person’s scientific and pedagogical qualification as well as organisation competence once in six years – could be appropriate as it allowed ascertaining that a person is suitable for the position of an associate professor or a professor. More frequent assessment of associate professors’ and professors’ qualification could jeopardise academic freedom. [16.2.]
On whether the legitimate aim can be reached by other measures, less restrictive on a person’s rights and lawful interests
The Constitutional Court concluded that, in the framework of the regulation currently in force, if a person’s suitability for a position, after the person had been elected to it, would be ensured only through regular verifications, the possibility of mid-level academic staff to stand for the vacant positions of professor would decrease even more. Regular open competitions for the position of an associate professor or a professor ensure the needed competition, allowing also mid-level academic staff to apply for a higher academic position. [17.1]
The Constitutional Court recognised that the legitimate aim would not be reached also in the case if the employment contract with associate professors and professors would be concluded for indeterminate period and the only way to ensure that these positions were held by persons with appropriate qualification were verifications following a receipt of a complaint or giving a notice on terminating the employment contract. [17.2.]
On whether the benefit that society gains through the restriction on fundamental rights outweighs the harm inflicted upon a person’s rights and lawful interests
The Constitutional Court underscored that, in the particular case, the legislator’s task was to reach reasonable balance between the need to ensure a person’s right to retain the existing employment in professorate, which was characterised by academic freedom, and the rights and interests that comply with the legitimate aims of the restriction on fundamental rights established by the contested norms, inter alia, the need to ensure continuous development of higher education and science, which was the pre-requisite for sustainable development of society, as well as students’ right to higher education. [18.]
The contested norms envisage regulation that differs from the Labour Law and allows concluding fixed term employment contracts with associate professors and professors. Therefore, to ascertain, whether the legislator had reached proper balance between these various interests, the Constitutional Court, first of all, established, whether, in accordance with Para 1 of Clause 5 of the Framework Agreement[1], protection against the possibility of abusing conclusion of successive fixed-term employment contracts had been ensured. [18.]
The Constitutional Court found that, with respect to employment contracts that were concluded with associate professors and professors, the legislator had not introduced into the legal system the measures referred to in sub-para “b” and “c” of Para 1 of Clause 5 of the Framework Agreement. I.e., legal norms did not define the admissible number of times such contracts could be renewed. Likewise, the maximum total term of successive fixed-term contracts was not defined. Therefore the Constitutional Court had to verify whether objective circumstances existed that justified the conclusion of fixed-term employment contracts with associate professors and professors. [20.]
The Constitutional Court noted that only the employer’s temporary needs could be the objective reason justifying the conclusion of successive fixed-term contracts. The Constitutional Court did not gain confirmation that all employment contracts with associate professors and professors were concluded to satisfy temporary needs. All institutions of higher education have a constant and lasting need for the professorate. Therefore the successive fixed-term contracts with associate professors and professors, in fact, are concluded to satisfy constant and lasting needs related to the employment of professorate. [20.1., 20.2.]
The Constitutional Court noted: if successive fixed-term employment contracts are concluded to satisfy constant and lasting needs related to the employment of employees then the Members State has the obligation to introduce one of the measures referred to in sub-para “b” and “c” of Para 1 of Clause 5 of the Framework Agreement or use another equivalent measure or measure more favourable for employees, which would ensure to them protection against the abuse of successive fixed-term employment contracts. [20.2.]
The Constitutional Court recognised that several successive fixed-term employment contracts could cause instability for professorate in the area of employment and that the law “On Institutions of Higher Education” did not envisage any measures for eliminating it. Hence, the restriction is incompatible with the principle of proportionality and, hence, the contested norms, insofar they do not ensure protection against the abuse of successive fixed-term employment contracts, is incompatible with the first sentence of Article 106 of the Satversme. [20.3.]
On the date when the Constitutional Court’s judgement enters into force
The Constitutional Court recognised the contested norms, insofar they did not provide protection against abuse of successive fixed-term employment contracts, as being void as of the date when the Constitutional Court’s judgement was published. At the same time, the Constitutional Court noted that, in the present case, the fundamental rights of those persons, with whom successive employment contracts on performing the duties of an associate professor or a professor would be concluded until the date when the legislator had adopted legal regulation complying with the Satversme that would ensure protection against the risk of abusing such contracts, had to be protected. The Constitutional Court drew attention to the fact that, until the new regulation was adopted, the rights of respective persons to retain the current employment should be assessed by directly applying the first sentence of Article 106 of the Satversme and the findings included in this judgement. [21.1.]
The Constitutional Court held:
to recognise Section 27 (5) with respect to associate professors and professors, Section 28 (8) and Section 30 (4) of the Law “On Institutions of Higher Education”, insofar they do not provide protection against abuse of successive fixed-term employment contracts, as being incompatible with the first sentence of Article 106 of the Satversme of the Republic of Latvia.
The Constitutional Court’s judgement is final and not subject to appeal, it will enter into force on the day it is published. The judgement will be published in the official journal “Latvijas Vēstnesis” within the term set in Section 33 (1) of the Constitutional Court Law.
The text of the judgment is available on the homepage of the Constitutional Court: https://www.satv.tiesa.gov.lv/web/viewer.html?file=/wp-content/uploads/2018/08/2018-15-01_Spriedums.pdf#search=
[1] EAK – UNICE – CEEP Framework agreement in fixed-term work, introduced by Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP.
Linked case: 2018-15-01