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On mandatory membership of certified architects in the association of professional self-governance

Anonymised
Case no 4-A/2020

 

 THE CONSTITUTIONAL COURT OF THE REPUBLIC OF LITHUANIA

IN THE NAME OF THE REPUBLIC OF LITHUANIA

 

RULING

ON THE COMPLIANCE OF PARAGRAPHS 1 AND 4 OF ARTICLE 4

OF THE REPUBLIC OF LITHUANIA’S LAW ON THE CHAMBER OF ARCHITECTS WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA

 

11 September 2020, no KT166-A-N14/2020

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 – Vaiva Matuizaitė

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 hearing before the Constitutional Court on 21 August 2020, considered, under written procedure, constitutional justice case no 4-A/2020 following petition no 1A-81/2019 of the petitioner [data not made public] requesting an investigation into whether Paragraph 1 (wording of 3 November 2016) of Article 4 of the Republic of Lithuania’s Law on the Chamber of Architects, insofar as, according to the petitioner, it establishes mandatory membership in the Chamber of Architects of the Republic of Lithuania for architects who hold certificates of qualification as an architect and are not engaged in the activities of a certified architect, is in conflict with Paragraph 2 of Article 35 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

The Constitutional Court

has established:

I

The circumstances of the petition and the arguments of the petitioner

1. The petitioner applied to the Constitutional Court with the request to investigate whether Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law on the Chamber of Architects (hereinafter referred to as the Law) is in conflict with the Constitution, insofar as, according to the petitioner, it establishes mandatory membership in the Chamber of Architects of the Republic of Lithuania (hereinafter referred to as the Chamber) for architects who hold certificates of qualification as an architect and are not engaged in the activities of a certified architect.

2. By the decision adopted at the sitting [data not made public] of the Commission for the Professional Certification of Architects of the Chamber and the decision set out in the act [data not made public] of the Chamber, the validity of the certificate of qualification held by the petitioner, which had enabled him to engage in the activities specified therein of a certified architect, was revoked for the reason that the fee payable by a member of the Chamber had not been paid. The membership of the petitioner in the Chamber started on 1 January 2017, when the legal regulation laid down in the impugned Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law came into force, although, since December 2016, the petitioner has not carried out the activities of a certified architect.

By its decision of 18 April 2019, the Vilnius Regional Administrative Court annulled the above-mentioned decision of the Commission for the Professional Certification of Architects of the Chamber and decision set out in the act of the Chamber to revoke the validity of the certificate of qualification held by the petitioner, as these decisions had been adopted not on the basis of a law; however, the court did not doubt the constitutionality of the impugned legal regulation and, having regard to the fact that the petitioner had not paid, as it was ascertained, the mandatory fee of a member of the Chamber, did not award full compensation claimed for the damage. By its non-appealable order of 29 October 2019, the Supreme Administrative Court of Lithuania rejected the appeal filed by the petitioner, and left the decision of the Vilnius Regional Administrative Court unchanged.

3. The petition is based on the following arguments.

3.1. In the opinion of the petitioner, the impugned legal regulation laid down in Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law is in conflict with Paragraph 2 of Article 35 of the Constitution; under this legal regulation, as of 1 January 2017, membership in the Chamber arises from the certification of an architect, even though the activities of a certified architect are not carried out, and the person concerned becomes a member of the Chamber automatically, i.e. without any individual legal act adopted and without the possibility of expressing his/her will not to be a member of the Chamber. According to the petitioner, the legislature has no powers to impose, by means of a law, mandatory membership in a professional self-governance association on persons in a state-controlled profession who are not engaged in the professional activities concerned, as, under the Constitution, the essential condition for mandatory membership in such associations is engagement by persons in the respective state-controlled professional activities.

3.2. According to the petitioner, the impugned legal regulation laid down in Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, under which, when a decision is made whether a person must be a member of a professional self-governance association, no account is taken of the fact that the person is not engaged in the professional activities of an architect, i.e. no right of choice is envisaged for persons not engaged in these professional activities, is also not constitutionally justifiable based on the provisions of the official constitutional doctrine, among others, those that the Constitution guarantees the right to decide of one’s own free will whether to belong or not to belong to a certain association (ruling of 21 December 2000), as well as that membership in the associations of the professional self-governance of state-controlled professions may be mandatory if the person concerned is engaged in the respective professional activities (ruling of 7 January 2008).

II

The arguments of the representatives of the party concerned

4. In the course of the preparation of the case for the hearing of the Constitutional Court, written explanations were received from the representatives of the Seimas of the Republic of Lithuania, the party concerned: Edvinas Mušinskis, senior adviser at the Public Law Unit of the Legal Department of the Office of the Seimas, and Dainius Zebleckis, senior adviser at the Private Law Unit of the Legal Department of the Office of the Seimas. It is stated in the explanations that the impugned legal regulation is not in conflict with Paragraph 2 of Article 35 of the Constitution and the constitutional principle of a state under the rule of law.

The position of the representatives of the Seimas, the party concerned, is substantiated by the following arguments.

4.1. The representatives of the Seimas, the party concerned, point out that the arguments put forward in the petition make it clear that the petitioner impugns only the inappropriate application of Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law (according to the petitioner, it must be applied only with respect to certified architects engaged in architectural activities and may not be applied to certified architects who are not engaged in these activities), which should be associated with uncertainty in the content of this paragraph, due to which both the Chamber and the courts had inappropriately interpreted and applied this legal regulation and due to which this legal regulation could be declared not in line with the constitutional principle of a state under the rule of law.

4.2. The application of solely the linguistic (literal) method of interpretation of law (it can be assumed that this sole method has been applied by both the Chamber and the courts) can create the impression that the impugned legal regulation, laid down in Paragraph 1 of Article 4 of the Law, imperatively requires the impossible, i.e. that absolutely all architects certified in the Republic of Lithuania must be members of the Chamber. In such a case, in addition to certified architects engaged in architectural activities, membership of the Chamber should also be recognised, for example, to all those architects certified in the Republic of Lithuania who have reached the established age for an old-age pension and are no longer engaged in architectural activities, as well as to those who are not engaged in architectural activities due to the severe level of disability (whose condition is such that, due to an illness, trauma, injury, congenital disorders or disorders acquired from childhood, or adverse effects of environmental factors, their abilities to develop, participate, or act have been significantly reduced and they are in need of continuous nursing, care, and assistance by other people).

According to the representatives of the Seimas, the party concerned, as regards the assessment of the content of the impugned legal regulation and given that laws may not require the impossible (lex non cogit ad impossibilia), solely the linguistic (literal) method of interpretation of law cannot be applied. Based on the provisions of the official constitutional doctrine formulated, inter alia, in the conclusion of 24 January 1995 and the rulings of 26 October 1995, 9 November 1999, and 1 December 2017, other methods of interpretation of law, such as linguistic, systemic, historical, comparative, etc., must also be applied; moreover, in order to clarify the actual purpose and essence of a provision of a law, it is necessary to take into account the actual intentions of the legislature, on the basis of which such a provision was adopted.

4.3. As it is clear from the traveaux préparataires of the impugned legal regulation, inter alia, from the explanatory note (No XIIP-4374) to the draft Law Amending Articles 1, 2, 3, 4 and 11 of the Republic of Lithuania’s Law (No X-914) on the Chamber of Architects and Declaring Article 18 of This Law as No Longer Valid, which stressed the importance of the professional self-governance of architects and the need to treat the profession of an architect as a profession regulated by the state, the necessity for mandatory membership in the association of the professional self-governance of architects (i.e. the Chamber) was justified based on, inter alia, the provisions of the Constitutional Court’s ruling of 7 January 2008 on mandatory membership in the respective professional self-governance association, ensuring the self-regulation of the respective profession and the respective system of self-governance, for persons engaged (for consideration) in state-controlled (state-regulated) professional (private) activities.

In clearly formulated provisions in its ruling of 7 January 2008, the Constitutional Court repeatedly made references to the requirement of engagement in a certain profession, inter alia, by emphasising the nature of such engagement, i.e. “for consideration”. Thus, the professional qualification acquired by a person and engagement in the respective profession for which the professional qualification was acquired are two distinct things. Therefore, the professional qualification alone acquired by a person could not justify the grounds for mandatory membership in a certain association formed on a professional basis.

4.4. According to the representatives of the Seimas, the party concerned, the legislative practice contains no examples based on which it would be possible to maintain that the sole acquisition of professional qualification creates the obligation for the person concerned to become a member of the respective institution formed on a professional basis. Such a systematic approach by the legislature to the legal regulation of professions regulated by the state also does not create any preconditions for interpreting the legal regulation laid down in the law concerning the profession of architects differently from the legal regulation laid down in analogous laws.

4.5. Thus, the impugned Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, in the light of the actual intentions of the legislature, establishes mandatory membership in the Chamber for all architects certified in the Republic of Lithuania who are engaged in the professional activities of an architect and it does not establish mandatory membership in the Chamber for architects who hold certificates of qualification as an architect and are not engaged in the activities of a certified architect. If interpreted in this way, in the opinion of the representatives of the Seimas, the party concerned, this provision of the Law, is not in conflict with the Constitution, inter alia, with the constitutional principle of legal clarity and, at the same time, with the constitutional principle of a state under the rule of law.

The Constitutional Court

holds that:

I

The impugned and related legal regulation

5. On 21 November 2006, the Seimas adopted the Law on the Chamber of Architects, which provides for the establishment, functions, activities, and management of the Chamber (Paragraph 1 of Article 1).

The Law was amended, inter alia, by the Law Amending Articles 1, 2, 3, 4 and 11 of the Republic of Lithuania’s Law (No X-914) on the Chamber of Architects and Declaring Article 18 of This Law as No Longer Valid; this law, which was adopted by the Seimas on 3 November 2016 and came into force (with certain exceptions) on 1 January 2017, among other things, laid down the impugned legal regulation.

6. The Law regulates, among other things, the purpose of the establishment of the Chamber, as well as its legal status and functions.

6.1. Under Paragraph 2 (wording of 3 November 2016) of Article 1 of the Law, the purpose of the establishment of the Chamber is as follows: to ensure the transparency and quality of architectural activities; to take care of issues related to the certification of architects, the recognition of qualification, the improvement of professional qualification, and compliance with the standards of professional ethics; to carry out monitoring over professional activities; to represent architects in relationships with state and municipal institutions and other legal and natural persons at the national and international level; to participate as an expert in courts and other institutions in matters of the professional activities of architects; to satisfy and defend public interests in relation to architecture; and to deal with other relevant issues.

6.2. Paragraph 1 (wording of 3 November 2016) of Article 2 “The Legal Status of the Chamber” of the Law provides that, established under this law and the Republic of Lithuania’s Law on the Associations, the Chamber is a public legal entity with limited civil liability, which unites certified architects and implements the professional self-governance of certified architects; the legal form of the Chamber as a legal entity is an association.

6.3. Paragraph 1 of Article 3 “The Functions and Rights of the Chamber” (as amended on 3 November 2016) of the Law provides that the Chamber performs the following functions: (1) in accordance with the procedure and in cases provided for in the laws, carries out the certification of architects and the recognition of the right held by them in a foreign country, fulfils other functions provided for in these laws, participates in deciding on the recognition of diplomas of foreign architects and on other issues relating to permission to engage in the professional activities of an architect in Lithuania; (2) in accordance with the procedure established by the Minister of the Environment of the Republic of Lithuania, maintains the list of certified architects and architects whose right is recognised; (3) lays down the rules of professional ethics for architects in the code of professional ethics and monitors over compliance with these rules; (4) carries out monitoring over architectural activities; (5) organises the improvement of qualification of the members of the Chamber; (6) performs expert functions in matters relating to architecture, urban planning, and territorial planning; (7) prepares draft legal acts regulating architectural and urban activities and activities in territorial planning; (8) fulfils other functions established by legal acts.

6.4. To sum up the legal regulation laid down in Paragraph 2 (wording of 3 November 2016) of Article 1, Paragraph 1 (wording of 3 November 2016) of Article 2, and Paragraph 1 of Article 3 (as amended on 3 November 2016) of the Law, it should be noted that the Chamber, as the institution of the professional self-governance of all certified architects, performs the functions established in the laws, by ensuring the transparency and quality of architectural activities, the certification of architects, the recognition of qualification, compliance with the standards of professional ethics, monitoring over professional activities, and the defence of public interests related to architecture, i.e. performs the public functions entrusted by the state.

7. The impugned Paragraph 1 (wording of 3 November 2016) of Article 4 “The Members of the Chamber and Their Rights and Duties” of the Law provides for the following: “The members of the Chamber shall be all architects certified in the Republic of Lithuania. Architects whose right to engage in the activities of a certified architect is recognised in the Republic of Lithuania may also be members of the Chamber.”

It should be noted that, before the impugned legal regulation was consolidated, Paragraph 1 of Article 4 of the Law had provided that architects certified and permanently resident in the Republic of Lithuania, as well as architects certified and resident in other Member States of the European Union and the European Economic Area, may be permanent members of the Chamber, i.e. membership in the Chamber for certified architects was not mandatory.

Thus, as of 1 January 2017, the impugned legal regulation, differently from the one laid down in the previously valid Paragraph 1 of Article 4 of the Law, consolidated mandatory membership in the Chamber – all architects certified in the Republic of Lithuania are mandatorily members of the Chamber.

7.1. It should be mentioned in this context that the traveaux préparataires of the impugned legal regulation, i.e. the explanatory note to the draft Law Amending Articles 1, 2, 3, 4 and 11 of the Law (No X-914) on the Chamber of Architects and Declaring Article 18 of This Law as No Longer Valid, make it clear that the profession of an architect is one of state-controlled professions; the laws and other legal acts designated to regulate the professional activities of architects lay down the special requirements aimed at ensuring the quality and control of the activities carried out by architects; the consolidation of membership of all certified architects in the institution of professional self-governance is aimed at properly implementing the coordination and control of architectural activities.

7.2. The impugned legal regulation, laid down in Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, should be interpreted in the context of the provisions of the Republic of Lithuania’s Law on Architecture.

7.2.1. Under Article 2 of the Law on Architecture, certified architects are natural persons who have education that meets the requirements established in this law (Paragraph 1) and hold a certificate of qualification as an architect (Paragraph 5).

It should be noted from the aspect relevant to this constitutional justice case that, under the impugned Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, interpreted in conjunction with Paragraph 5 of Article 2 of the Law on Architecture, mandatory membership in the Chamber is inseparable from holding a certificate of qualification as an architect.

7.2.2. Under Paragraph 1 of Article 8 “The Activities of Certified Architects” of the Law on Architecture, certified architects have, among other things, the right to carry out the following activities:

(1) in the cases specified in the Republic of Lithuania’s Law on Construction, to prepare the projects of structures and direct the main areas of technical activities in the construction of structures (to perform the duties of the head of the main areas of technical activities in the construction of structures); (2) in the cases specified in the Republic of Lithuania’s Law on Territorial Planning, to prepare territorial planning documents and direct the preparation of territorial planning documents; (3) in the cases specified in the Republic of Lithuania’s Law on the Protection of Immovable Cultural Heritage, to carry out activities related to the protection of immovable cultural heritage: to prepare the projects of maintenance works and direct the preparation of the projects of maintenance works, to perform the duties of the head of the main areas of technical activities in the construction of immovable cultural heritage structures, to prepare documents of special territorial planning of the protection of immovable cultural heritage, and to direct the preparation of documents of special territorial planning of the protection of immovable cultural heritage; (4) in the cases specified in the Republic of Lithuania’s Law on Protected Territories, to prepare documents of special territorial planning of protected territories and direct the preparation of documents of special territorial planning of protected territories.

It should be noted in this context that Paragraph 2 of Article 3 of the Law on Architecture provides that the public interest ensured through architectural activities includes the following:

(1) the quality of architecture, guaranteeing an environment favourable to human health and well-being, as well as its physical, psychological, social, and aesthetic factors; (2) the harmonious incorporation of structures into their surroundings, the fostering of natural and urban landscape, and the preservation of immovable architectural, urban, and ethnocultural heritage; (3) the coordination of societal interests, interests of the state and municipal communities, and private interests, based on the objective needs of persons, groups of persons, state and municipal institutions, and municipal communities; (4) other legitimate interests of a person or a group of persons, reflecting and expressing the fundamental values of society that are provided for and protected by the Constitution.

It should also be mentioned that, under Item 5 of Article 5 of the Law on Architecture, architects must ensure the implementation of the public interest.

Thus, in the context of the interpretation of the legal regulation laid down in Paragraph 2 of Article 3, Item 5 of Article 5, and Paragraph 1 of Article 8 of the Law on Architecture, it should be noted that, under this legal regulation, certified architects carry out activities related to the implementation of the public interest, inter alia, in the areas of construction, territorial planning, the protection of immovable cultural heritage, and the planning of protected territories.

7.2.3. It should be noted that, under Paragraph 1 of Article 7 of the Law on Architecture, the right to carry out the activities of a certified architect is confirmed by a certificate of qualification as an architect.

Article 9 of the Law on Architecture, inter alia, provides for the following:

architects seeking to obtain a certificate of qualification as an architect must meet the requirements of qualification and professional experience, set out in the laws specified in Paragraph 1 of Article 8 of this law (i.e. respectively, in the Law on Construction, the Law on Territorial Planning, the Law on the Protection of Immovable Cultural Heritage, the Law on Protected Territories) (Paragraph 1);

in the cases, under the procedure, and within the time limits laid down by the above-mentioned laws specified in Paragraph 1 of Article 8 of this law, the Chamber issues certificates of qualification as an architect for an indefinite period of time, also modifies or suspends them, or revokes their validity or the suspension of their validity (Paragraph 2);

a certificate of qualification as an architect must be obtained before the activities of a certified architect start (Paragraph 4).

It should be noted from the aspect relevant to this constitutional justice case that the grounds for suspending a certificate of qualification as an architect are laid down in Paragraph 14 of Article 12 of the Law on Construction (wording of 30 June 2016), Paragraphs 5 and 6 of Article 40 (wording of 30 June 2016) of the Law on Territorial Planning, Paragraph 14 of Article 231 (wording of 30 June 2016) of the Law on the Protection of Immovable Cultural Heritage, and Paragraph 3 of Article 281 (wording of 26 April 2019) of the Law on Protected Territories, but they do not provide for the possibility of suspending the validity of a certificate of qualification as an architect at the request of the architect, including in cases where the architect does not carry out the professional architectural activities indicated in this certificate.

7.2.4. Thus, under the legal regulation laid down in the Law on Architecture, inter alia, in Paragraphs 1 and 5 of Article 2, Paragraph 2 of Article 3, Item 5 of Article 5, Paragraph 1 of Article 7, Paragraph 1 of Article 8, and Paragraphs 1, 2, and 4 of Article 9 thereof, the profession of an architect is one of state-controlled professions and it is related to the implementation of the public interest, inter alia, in the areas of construction, territorial planning, the protection of immovable cultural heritage, and the planning of protected territories; the exercise of certain functions established by law in the professional activities of an architect in these areas depends on the holding of a certificate of qualification as an architect, issued by the Chamber.

7.3. To sum up the impugned legal regulation, laid down in Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, in conjunction with the above-mentioned provisions of Paragraphs 1 and 5 of Article 2, Paragraph 1 of Article 7, and Paragraphs 1, 2, and 4 of Article 9 of the Law on Architecture, it should be noted that, under this legal regulation:

mandatory membership is established for certified architects in the Chamber – an institution established by means of a law for the professional self-governance of a state-controlled profession (architects), which performs the public functions entrusted by the state, i.e. ensures, inter alia, the transparency and quality of architectural activities, the certification of architects, the recognition of qualification, compliance with the standards of professional ethics, the defence of public interests related to architecture, as well as other control required under the laws to be carried out over architectural activities;

the members of the Chamber are all certified architects, i.e. architects holding a certificate of qualification as an architect, issued by the Chamber and entitling them to engage in the activities of a certified architect, regardless of whether they are engaged in the professional activities of a certified architect or are not engaged in such activities;

membership in the Chamber is inseparable from holding a certificate of qualification as an architect: a person who has obtained a certificate of qualification as an architect is a member of the Chamber; upon the revocation of the validity of this certificate, membership of the person in the Chamber ends and, at the same time, the right to engage in the activities of a certified architect is lost.

8. It should be noted from the aspect relevant to this constitutional justice case that Paragraph 4 of Article 4 of the Law provides that: “The conditions and procedure for membership in the Chamber (joining the Chamber, the suspension of membership, withdrawal from membership, the removal of members, etc.) shall be laid down in the Statute of the Chamber.” It should also be noted that, under Paragraph 3 (wording of 3 November 2016) of Article 3 of the Law, the Statute of the Chamber is approved by a meeting of members of the Chamber.

Thus, under this legal regulation, the conditions for membership in the Chamber, inter alia, the suspension and termination of membership, are regulated not by the Law, but by the Statute of the Chamber, approved by a meeting of members of the Chamber.

Considering that, as mentioned before, under the impugned legal regulation, laid down in Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, membership in the Chamber is inseparable from holding a certificate of qualification as an architect, it should be concluded that, under Paragraph 4 of Article 4 of the Law, the validity of a certificate of qualification as an architect, which entitles its holder to engage in the activities of a certified architect, may be revoked on the grounds other than those laid down by means of a law.

9. It should be mentioned in the context of this case that the European Court of Human Rights has more than once held that the institutions of self-governance founded on the basis of laws in liberal professions are not considered associations within the meaning of Article 11 “Freedom of Assembly and Association” of the Convention for the Protection of Human Rights and Fundamental Freedoms; Paragraph 1 of this article, inter alia, provides that everyone has the right to freedom of association with others, including the right to form and to join trade unions for the protection of his/her interests; the purpose of such above-mentioned institutions founded on the basis of laws is to regulate and promote certain professions that exercise important public-law functions for the protection of the public; mandatory membership in these institutions stems from the individual decision of each person to engage in such professional activities that, by their nature, require a particular legal regulation (decision of 6 November 2003 as to admissibility in the case of Popov and Others v Bulgaria, petition no 48047/99, no 48961/99, no 50786/99, and no 50792/99).

II

The provisions of the Constitution and the official constitutional doctrine

10. In this constitutional justice case, the Constitutional Court is investigating the compliance of Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, which regulates membership in the association of the professional self-governance of architects, with Paragraph 2 of Article 35 of the Constitution and the constitutional principle of a state under the rule of law.

11. Article 35 of the Constitution prescribes:

Citizens shall be guaranteed the right to freely form societies, political parties, and associations provided that the aims and activities thereof are not contrary to the Constitution and laws.

No one may be compelled to belong to any society, political party, or association.

The founding and activities of political parties and other political and public organisations shall be regulated by law.”

The Constitutional Court has held that Article 35 of the Constitution consolidates one of the fundamental rights of a citizen of a democratic state – namely, the right to associate or freedom of association (ruling of 1 July 2004, the ruling (no KT25-N12/2016) of 5 October 2016, and the ruling of 11 July 2019).

11.1. Interpreting Paragraph 1 of Article 35 of the Constitution, the Constitutional Court has noted that the constitutional right to freely form societies, political parties, or associations is manifold; its content is composed of the right to establish societies, political parties, or associations, the right to join them and take part in their activities (inter alia, the rulings of 21 December 2000, 1 July 2004, and 11 July 2019), as well as the right not to be a member of any societies, political parties, or associations and the right to withdraw from membership of such entities; the Constitution guarantees the right to decide of one’s own free will whether or not to belong to a certain society, political party, or association; a person exercises this constitutional right of his/her own free will, and this free will of a person is a fundamental principle of membership in various societies, political parties, or associations (inter alia, the rulings of 21 December 2000 and 1 July 2004 and the ruling (no KT25-N12/2016) of 5 October 2016); this constitutional principle must be observed when the establishment, activities, and membership relationships of all the types of associations are regulated by legal acts, regardless of the legitimate objectives pursued by these entities (ruling of 21 December 2000).

The concepts “society”, “political party”, and “association” express the diversity of entities established on a voluntary basis to meet the needs of their members in the political, economic, cultural, social, and other areas of life (inter alia, the rulings of 21 December 2000, 1 July 2004, and 11 July 2019); these entities provided for under the Constitution are based on voluntary membership; they are founded and function in the interests of their members (rulings of 1 July 2004 and 11 July 2019). Under the Constitution, it is not permitted to establish such a legal regulation that would artificially or unreasonably restrict freedom of establishment of associations and their activities, as it would violate the constitutional value – the right to associate (freedom of association) (ruling of 1 July 2004).

When the establishment of any association, its activity, and its membership relationships are regulated by means of a law, regard must be paid to the requirement, consolidated in Paragraph 2 of Article 35 of the Constitution, that no one, i.e. neither any natural person nor a grouping of natural persons, may be compelled to belong to any society, political party, or association (ruling of 21 December 2000 and the ruling (no KT25-N12/2016) of 5 October 2016); the provision of Paragraph 2 of Article 35 of the Constitution is the constitutional guarantee protecting a person from membership in an association against his/her will (rulings of 21 December 2000, 9 February 2007, and 9 November 2010).

11.2. The constitutional right of citizens to freely form, inter alia, associations is not absolute; it may be limited by means of a law, but to the extent not greater than allowed by the Constitution itself (rulings of 14 April 2006 and 11 July 2019). The Constitutional Court has more than once emphasised in its rulings that, under the Constitution, it is allowed to limit the exercise of the rights and freedoms of a person if the following conditions are observed: the limitations are established by means of a law; the limitations are necessary in a democratic society in order to protect the rights and freedoms of other persons, the values consolidated in the Constitution, as well as the constitutionally important objectives; the limitations do not deny the nature and essence of rights or freedoms; the constitutional principle of proportionality is followed (inter alia, the rulings of 26 January 2004, 9 May 2014, and 11 July 2019).

11.3. The Constitutional Court has also pointed out that the state may perform its functions not only through the system of respective institutions, involving state and municipal institutions (as it usually does), but also – to a certain extent – through other (non-state) institutions, which are assigned (entrusted) by law to perform certain functions of the state or which participate in the performance of the functions of the state in the forms and ways defined in laws (inter alia, the rulings of 13 December 2004, 7 January 2008, and 22 March 2010).

In its ruling of 7 January 2008, the Constitutional Court held the following:

it is universally – not only in Lithuania – recognised that such state-controlled professions as a bailiff etc. (in fact, not only legal professions), i.e. the performance of functions ensuring the public interest (in return for consideration) by persons engaged in independent professional (private) activities, while the state, which delegated the performance of these functions, must control how these functions are performed, imply the self-regulation of the respective profession, as well as the respective system of self-governance, which covers all this profession (all persons engaged in this profession) and ensures, inter alia, the representation of this profession (persons engaged in this profession) in relationships with state institutions and self-governance institutions and on the international level, the organisation of qualification improvement, the uniform standards of professional ethics and control over compliance with these standards, as well as other control required under the laws to be carried out over the activities of persons engaged in this profession;

in the absence of such a self-regulation and self-governance system, the transfer of the respective functions, the performance of which must be ensured by the state, into private hands would not only be unreasonable in terms of expediency, but could also be constitutionally unjustifiable; in terms of expediency, it would also be unjustifiable and, perhaps constitutionally unreasonable if certain persons engaged in a particular state-controlled profession could be “at the side of” the above-mentioned system of professional self-governance and not only did not contribute to the functioning of the system, but could also avoid control over their respective professional activities, inter alia, control over whether these persons comply with the uniform standards of professional ethics;

the persons who are engaged in a certain state-controlled profession and are, ex lege, members of the respective association ensuring the self-governance of this profession cannot fail to have certain duties related to ensuring the functioning of the above-mentioned system of self-governance, inter alia, those related to the maintenance of the respective association.

11.4. The provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution is also relevant to this constitutional justice case. The Constitutional Court has held that the provision of Paragraph 1 of Article 48 of the Constitution that everyone may freely choose a job or business is a general norm, which is based on the universally recognised concept of human freedom (rulings of 4 March 1999 and 13 December 2004) and implies the possibility of choosing a type of occupation at one’s own discretion, i.e. by one’s own free decision (rulings of 10 July 1996 and 13 December 2004).

It should be noted from the aspect relevant to this constitutional justice case that, in its ruling of 7 January 2008, the Constitutional Court also held that, creating the legal preconditions for implementing the right of every person, consolidated in Paragraph 1 of Article 48 of the Constitution, to freely choose a job or business, the legislature has the powers, while taking into account the nature of an occupation, to establish the conditions for implementing the right to freely choose an occupation; under the Constitution, the legislature has the powers to provide, by means of a law, for such a legal regulation whereby persons engaged in certain state-controlled professional activities are, ex lege, members of the respective association ensuring the self-governance of the profession concerned, inter alia, the uniform standards of professional ethics and monitoring over compliance with these standards; thus, a law may provide for such a legal regulation under which being a member of the said association is a necessary condition for engaging in the respective professional activities.

11.5. It should be noted in the context of this constitutional justice case that, under Paragraph 3 of Article 35 of the Constitution, according to which, inter alia, the founding and activities of public organisations are governed by means of a law, in regulating the establishment and activities of an association that ensures the self-governance of a state-controlled profession and is, under the laws, assigned to perform certain functions of the state or participate in the performance of these functions, and ex lege unites persons engaged in the respective independent professional activities related to the implementation of the public interest, the legislature must, by means of a law, establish the grounds for suspending and terminating membership in such an association, among other things, those in relation to the right to carry out the professional activities concerned. Otherwise, no regard would also be paid to the requirement, arising with respect to the legislature from the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution, to provide for the conditions for implementing the right of every person to freely choose a job or business.

12. As held by the Constitutional Court on more than one occasion, the essence of the constitutional principle of a state under the rule of law is the rule of law; the constitutional imperative of the rule of law means that freedom of state power is limited by law, which must be obeyed by all subjects of legal relationships, including law-making subjects (inter alia, the rulings of 13 August 2007, 8 July 2016, and 12 June 2020); the constitutional principle of a state under the rule of law is especially broad and comprises a wide range of various interrelated imperatives (inter alia, the rulings of 29 December 2004, 26 June 2017, and 12 June 2020); this principle also implies that human rights and freedoms must be ensured (inter alia, the rulings of 23 February 2000, 16 May 2013, and 4 May 2018).

An element of the constitutional principle of a state under the rule of law and, as mentioned before, one of the conditions for limiting the exercise of the rights and freedoms of a person is the principle of proportionality; under this principle, the measures established by legal acts and put into application must be proportionate to the objective pursued, and the rights of a person may not be limited more than necessary in order to reach a legitimate, universally significant, and constitutionally justifiable objective (inter alia, the rulings of 1 July 2013, 14 February 2014, and 8 November 2019).

III

The assessment of the compliance of Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law on the Chamber of Architects with the Constitution

13. It has been mentioned that, in this constitutional justice case, the petitioner requests an investigation into whether Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, insofar as, according to the petitioner, it establishes mandatory membership in the Chamber for architects who hold certificates of qualification as an architect and are not engaged in the activities of a certified architect, is in conflict with Paragraph 2 of Article 35 of the Constitution and the constitutional principle of a state under the rule of law.

14. The doubts of the petitioner regarding the constitutionality of the impugned legal regulation are based on the fact that, in the opinion of the petitioner, the legislature has no powers to impose, by means of a law, mandatory membership in a professional self-governance association on persons in a state-controlled profession who are not engaged in the professional activities concerned, as, under the Constitution, the essential condition for mandatory membership in such associations is engagement by persons in the respective state-controlled professional activities.

15. As regards the compliance of Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, to the extent specified by the petitioner, with Paragraph 2 of Article 35 of the Constitution and the constitutional principle of a state under the rule of law, it should be noted that, as mentioned before:

Article 35 of the Constitution consolidates one of the fundamental rights of a citizen of a democratic state – the right to associate or freedom of association; the constitutional right to freely form, inter alia, associations is manifold; its content is composed of, inter alia, the right to establish associations, the right to join them and participate in their activities, as well as the right not to be a member of associations and the right to withdraw from membership of such entities; a person exercises the constitutional right to decide whether to belong or not to belong to a certain association of his/her own free will; when the establishment of any association, its activity, and its membership relationships are regulated by means of a law, regard must be paid to, among other things, the requirement, consolidated in Paragraph 2 of Article 35 of the Constitution, that no one may be compelled to belong to, inter alia, any association; this constitutional principle must be observed when the establishment, activity, and membership relationships of all the types of associations are regulated by legal acts, regardless of the legitimate objectives pursued by these entities;

under the Constitution, the legislature has the powers to provide, by means of a law, for such a legal regulation whereby persons engaged in certain state-controlled professional activities are, ex lege, members of the respective association ensuring the self-governance of the profession concerned, inter alia, the uniform standards of professional ethics and monitoring over compliance with these standards; membership in such an association may be established by means of a law as a necessary condition for engaging in the professional activities concerned;

the constitutional right of citizens to freely form, inter alia, associations may be limited by means of a law, but to the extent not greater than allowed by the Constitution itself, if the following conditions are observed: the limitations are established by means of a law; the limitations are necessary in a democratic society in order to protect the rights and freedoms of other persons, the values consolidated in the Constitution, as well as the constitutionally important objectives; the limitations do not deny the nature and essence of rights or freedoms; and the constitutional principle of proportionality is followed;

under the principle of proportionality, which is an element of the constitutional principle of a state under the rule of law and one of the conditions for limiting the exercise of the rights and freedoms of persons, the measures established by legal acts and put into application must be proportionate to the objective pursued, and the rights of a person may not be limited more than necessary in order to reach a legitimate, universally significant, and constitutionally justifiable objective.

16. It has been mentioned that, under the impugned legal regulation, laid down in Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, interpreted in conjunction with the provisions of Paragraphs 1 and 5 of Article 2, Paragraph 1 of Article 7, and Paragraphs 1, 2, and 4 of Article 9 of the Law on Architecture:

mandatory membership is established for certified architects in the Chamber – an institution established by means of a law for the professional self-governance of a state-controlled profession (architects), which performs the public functions entrusted by the state, i.e. ensures, inter alia, the transparency and quality of architectural activities, the certification of architects, the recognition of qualification, compliance with the standards of professional ethics, the defence of public interests related to architecture, as well as other control required under the laws to be carried out over architectural activities;

the members of the Chamber are all certified architects, i.e. architects holding a certificate of qualification as an architect, issued by the Chamber and entitling them to engage in the activities of a certified architect, regardless of whether they are engaged in the professional activities of a certified architect or are not engaged in such activities.

It has also been mentioned that, under the legal regulation laid down in Paragraph 2 of Article 3, Item 5 of Article 5, and Paragraph 1 of Article 8 of the Law on Architecture, certified architects carry out activities related to the implementation of the public interest, inter alia, in the areas of construction, territorial planning, the protection of immovable cultural heritage, and the planning of protected territories.

17. Thus, it should be noted that the legal regulation laid down in Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law establishes mandatory membership in a professional self-governance institution – the Chamber for all certified architects, i.e. for both architects engaged in this state-controlled profession and those not engaged in it.

17.1. By such a legal regulation that establishes mandatory membership in the Chamber for certified architects engaged in professional activities, the legislature implemented the powers, deriving from the Constitution, inter alia, Article 35 thereof, to establish, by means of a law, that persons engaged in certain state-controlled professional activities are, ex lege, members of the respective association ensuring the self-governance of the profession concerned, inter alia, the uniform standards of professional ethics and monitoring over compliance with these standards. It should be noted that such a legal regulation is aimed at achieving the constitutionally important objective to ensure the transparency and quality of architectural activities related to the implementation of the public interest, the certification of architects, the recognition of qualification, compliance with the standards of professional ethics, as well as other control required under the laws to be carried out over architectural activities.

17.2. A different assessment should be given to the impugned legal regulation, laid down in Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, whereby mandatory membership in the Chamber is established for certified architects not engaged in professional activities. By such a legal regulation, the legislature exceeded the powers, conferred on it under the Constitution, inter alia, Article 35 thereof, to establish, by means of a law, that only those persons who are engaged in certain state-controlled professional activities must mandatorily be members of the respective association ensuring the self-governance of the profession concerned, inter alia, the uniform standards of professional ethics and monitoring over compliance with these standards.

It should be noted at the same time that certified architects who are not engaged in these professional activities also do not carry out any such activities related to the implementation of the public interest control over which, as mentioned before, is entrusted by the state to the Chamber as an institution of the professional self-governance of a state-controlled profession (architects). Therefore, mandatory membership in the Chamber, as established in Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, for certified architects who are not engaged in the professional activities concerned should be regarded as unnecessary in order to reach the constitutionally important objective to ensure the transparency and quality of architectural activities related to the implementation of the public interest, the certification of architects, the recognition of qualification, compliance with the standards of professional ethics, as well as other control required under the laws to be carried out over architectural activities. By such a legal regulation, the freedom of association of certified architects not engaged in these professional activities is limited more than necessary in order to reach a constitutionally important objective.

18. Thus, it should be held that the impugned legal regulation, which establishes mandatory membership in the Chamber for certified architects not engaged in the professional activities concerned, disregards the prohibition, consolidated in Paragraph 2 of Article 35 of the Constitution, to compel persons to belong to any association, as well as disregards the requirement, arising from the constitutional principle of a state under the rule of law, that freedom of association must not be limited more than necessary in order to reach a constitutionally important objective.

19. In the light of the foregoing arguments, the conclusion should be drawn that Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, insofar as it establishes mandatory membership in the Chamber for certified architects not engaged in the activities of a certified architect, is in conflict with Paragraph 2 of Article 35 of the Constitution and the constitutional principle of a state under the rule of law.

20. It should be noted that, among others, such a legal regulation established under the Law would be in line with the Constitution whereby certified architects not engaged in the activities of a certified architect would have the right to suspend their membership in the Chamber.

IV

The assessment of the compliance of Paragraph 4 of Article 4 of the Law on the Chamber of Architects with the Constitution

21. The Constitutional Court has held more than once that, if it finds the unconstitutionality of provisions that are not impugned by a petitioner but are consolidated in the same legal act whose other provisions are impugned by the petitioner in terms of their constitutionality, it must state that the said provisions that have not been impugned by the petitioner have been found to be unconstitutional (inter alia, the rulings of 11 July 2014, 11 June 2015, and 26 June 2017); the implementation of constitutional justice implies that a legal act (part thereof) that is in conflict with the Constitution must be removed from the legal system (inter alia, the rulings of 29 November 2001, 22 September 2015, and 24 July 2020); therefore, under the Constitution, the Constitutional Court must remove from the legal system all anti-constitutional provisions whose conflict with the Constitution becomes apparent in a constitutional justice case under consideration (rulings of 12 June 2020 and 24 July 2020).

22. It has been noted in this ruling of the Constitutional Court that, under Paragraph 3 of Article 35 of the Constitution, regulating the establishment and activities of an association that ensures the self-governance of a state-controlled profession and is, under the laws, assigned to perform certain functions of the state or participate in the performance of these functions, and ex lege unites persons engaged in the respective independent professional activities related to the implementation of the public interest, the legislature must, by means of a law, establish the grounds for suspending and terminating membership in such an association, among other things, those in relation to the right to carry out the professional activities concerned; otherwise, no regard would also be paid to the requirement, arising with respect to the legislature from the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution, to provide for the conditions for implementing the right of every person to freely choose a job or business.

23. It has been mentioned that, under Paragraph 4 of Article 4 of the Law, interpreted in conjunction with Paragraph 3 (wording of 3 November 2016) of Article 3 of the Law, the conditions for membership in the Chamber, inter alia, the suspension and termination of membership, are regulated not by means of the Law, but by means of the Statute of the Chamber, approved by a meeting of members of the Chamber; considering that, under the impugned legal regulation, laid down in Paragraph 1 (wording of 3 November 2016) of Article 4 of the Law, membership in the Chamber is inseparable from holding a certificate of qualification as an architect, it should be concluded that, under Paragraph 4 of Article 4 of the Law, the validity of a certificate of qualification as an architect, which entitles its holder to engage in the activities of a certified architect, may be revoked on the grounds other than those laid down by means of a law.

Consequently, the legal regulation laid down in Paragraph 4 of Article 4 of the Law creates the preconditions for establishing, not by means of a law, but by means of an act approved by a meeting of members of the Chamber (which, as mentioned before, is the association of the professional self-governance of certified architects), the grounds for suspending and terminating membership in the Chamber, i.e. at the same time, the grounds for suspending and terminating the professional activities of a certified architect and, thus, also the essential conditions for implementing the right to engage in the professional activities concerned.

24. It should be held that the legal regulation laid down in Paragraph 4 of Article 4 of the Law disregards the requirement, arising from Paragraph 3 of Article 35 of the Constitution, to establish, by means of a law, the grounds for suspending and terminating membership in an association ensuring the self-governance of a state-controlled profession, among others, those in relation to the right to carry out the professional activities concerned, as well as disregards the requirement, arising with respect to the legislature from Paragraph 1 of Article 48 of the Constitution, to provide for the conditions for implementing the right of every person to freely choose a job or business.

25. In the light of the foregoing arguments, it should be concluded that Paragraph 4 of Article 4 of the Law, insofar as it provides that the grounds for suspending and terminating membership in the Chamber are laid down in the Statute of this Chamber, is in conflict with Paragraph 3 of Article 35 and the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 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 Paragraph 1 (wording of 3 November 2016; Register of Legal Acts, 2016, No 26508) of Article 4 of the Republic of Lithuania’s Law on the Chamber of Architects, insofar as it establishes mandatory membership in the Chamber of Architects of the Republic of Lithuania for certified architects not engaged in the activities of a certified architect, is in conflict with Paragraph 2 of Article 35 of the Constitution of the Republic of Lithuania and the constitutional principle of a state under the rule of law.

2. To recognise that Paragraph 4 of Article 4 of the Republic of Lithuania’s Law on the Chamber of Architects (wording of 21 November 2006; Official Gazette Valstybės žinios, 2006, No 134-5063), insofar as it provides that the grounds for suspending and terminating membership in the Chamber of Architects of the Republic of Lithuania are laid down in the Statute of this Chamber, is in conflict with Paragraph 3 of Article 35 and the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution of the Republic of Lithuania.

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

Justices of the Constitutional Court          Elvyra Baltutytė

                                                                              Gintaras Goda

                                                                              Vytautas Greičius

                                                                              Danutė Jočienė

                                                                              Gediminas Mesonis

                                                                              Vytas Milius

                                                                              Daiva Petrylaitė

                                                                              Janina Stripeikienė

                                                                              Dainius Žalimas