TRIBUNAL CONSTITUCIONAL Portugal

RULING Nº 154/2010

20 of April of 2010

Headnotes:

Changing civil servants from the custom appointment-based regime that had previously applied to them to a contractual regime does not conflict with the requirement that the civil service be the object of a specific normative complex. Making changes to their previously established labour relationships does not violate the Constitution, on condition that the labour-law position of the existing beneficiaries of the bond applicable to a definitive appointment is protected.

Summary:

This case involved a request for the successive abstract review of the constitutionality of a number of norms in a Law which laid down the rules governing the employment bonds, careers and remuneration of workers who exercise public functions. The request was made by a group of Members of the Assembly of the Republic, who argued that the Law’s objective was to change the configuration of the State and of the functions or tasks with which it is charged by the Constitution, by radically modifying the labour-law regime applicable to Public Administration workers. They said that the legislation in question compromised the State’s ability to perform its constitutional functions, and in doing so clearly prejudiced citizens in general; in particular, it achieved this by weakening the rights of civil service workers, generalising the labour contract format for work performing public functions as the legal relationship for employment in the public sector, and transferring the legal regulation of the Public Administration and its workers from the field of administrative law to that of private law. According to the petitioners the bond created by a public-sector appointment has become one that is residual and dependent on the idea of a subsidiary State, which privileges functions with a penal nature or involving the maintenance of public order, the defence of democratic legality, national sovereignty and territorial integrity, and the guarantee of people’s freedom and security, which are the only areas in which the original bond created by a public-sector appointment remains. In the view of the petitioners this means that the State has renounced part of the tasks which the Constitution requires it to perform. They feel that the Law violates: the principle under which the status of the civil service can only be governed by the Constitution; the right to job security; the constitutional principles of legal security and the protection of certainty, with the specific degree of intensity that ought to apply to the exercise of public functions; the constitutional format applicable to the structure of the Administration; and the nucleus of constitutionally defined fundamental tasks that go to make up a democratic State based on the rule of law.

The Court felt that the petition combined two questions that it was important to analyse separately, inasmuch as they constitute autonomous problems and any finding of unconstitutionality in relation to one cannot be allowed to preclude the possibility of a different finding with regard to the other. The two questions were: the right to job security within the scope of the ‘specific normative complex’ applicable to the public employment relationship; and the change in the law governing the format of the bond that creates the legal employment relationship, while that relationship is still in place.

On the subject of the specific normative complex applicable to public functions, which may be justified by the particular nature of the Public Administration and by the devolved and decentralised structure which is enshrined in the Constitution and which ought to grant Public Administration workers effective guarantees of the rigorous exercise of the public interest they serve and the principles to which they are subject, the Court felt that it is not possible to say that in its own right, the change from the appointment-based regime (by a unilateral act of the Administration) to a contractual regime (by conjugating the public interest which the Public Administration serves with the private autonomy of the private sector) conflicts with the idea of a specific normative complex for the civil service. This specific normative complex exists in constitutional terms, but is not injured just by the existence of contractual forms of recruitment for Public Administration workers. Nor does the model of a social State that is enshrined in the Constitution require retention of the definitive appointment regime, or exclude the possibility that the Public Administration be governed by contractual labour criteria.

The Constitution rejects the model of a ‘minimum State’ and imposes that of a ‘social State’, but it does not defend an assistentialist State. The Court highlighted the fact that the question is not a political/ideological one, but rather a ‘constitutional-law’ one. The “economic, social and cultural democracy” that underlies the constitutional idea of a democratic State based on the rule of law does not correspond to a predefined ideological model for the organisation and actions of the State and the Public Administration, but rather to a requirement for constitutional legality that fits structurally diverse models of public administrative organisation and heterogeneous ways of achieving the public interest which the State seeks to serve.

Inasmuch as the idea of a social State is one implication of the concept of a State based on the rule of law, and given that the latter incorporates the principles of popular sovereignty and plural democratic expression and political representation, the holders of the political power that is legitimately constituted in each legislature in accordance with the popular mandate are responsible for deciding the way in which the constitutional norms that set the fundamental tasks of the State are to be implemented. None of these norms can be interpreted to mean that the ordinary legislator is bound to an unchanging ‘vision’ of the State – whether or not it is the “broader vision of the welfare state – or to a programme for its future actions which is so detailed that it requires the retention of a given model for forming the public employment relationship”.

With regard to the correct exercise of the activity of public administration within the framework of the principles enshrined in the Constitution, the Court considered that it is not possible to establish a necessary causal nexus between the security of the public employment relationship and the form that is given to public employment. While there can be no doubt that stability promotes commitment, it is nonetheless not legitimate to presume that workers with an indefinite contract will be less committed to pursuing the public interest than workers who have been definitively appointed. What is more, the law says that any of these formats for the formation of the legal relationship involved in public employment – appointment (definitive or temporary), or contract (indefinite, or fixed or variable-term) must be subject to the same guarantees of impartiality. This means that there is no necessary causal correlation between the format in which the legal relationship involved in public employment is formed and the degree of the worker’s commitment to the pursuit of the public interest.

On the specific subject of pre-existing labour relationships, the Court was of the view that the Law in question protects the essential elements of the labour-law position of the existing beneficiaries of a bond based on a definitive appointment. Job security is not an absolute right, but rather – like all other rights – a right that admits limits and restrictions in the light of other rights and values to which the Constitution extends its protection. Specifically with regard to public employment, it is necessary to weigh the Public Administration’s constitutionally defining objective – i.e. the ‘public interest’ – against the duty to administer well that is inherent therein.

Turning to the question of whether it is constitutionally permissible to apply the new legal regime to workers who were appointed before the Law was passed – something that would have the effect of modifying the situation with regard to the specific normative complex that applies to them, while that appointment still existed – in the light of its own jurisprudence on the principle of the protection of certainty, the Court considered that in the case before it there could be no legitimate expectation on the part of a worker with a definitive bond that his/her labour-law position should be an unchangeable situation.

Supplementary information:

The decision was unanimous.

Cross-references:

See Rulings nos. 154/86, 287/90, 340/92, and 683/99.