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On the right of scientists and lecturers of over 65 years of age to work in Vilnius University

Case no 11/2019

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

RULING
ON THE COMPLIANCE OF THE PROVISION OF PARAGRAPH 9 OF ARTICLE 15 OF THE STATUTE OF VILNIUS UNIVERSITY WITH THE CONSTITUTION OF THE REPUBLIC OF LITHUANIA 

12 February 2021, no KT29-N1/2021
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, Giedrė Lastauskienė, Algis Norkūnas, 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 hearing before the Court on 28 January 2021, under written procedure, considered the constitutional justice case (no 11/2019) following the petition (no 1B-13/2019) of the Vilnius Regional Court, the petitioner, requesting an investigation into whether the provision “Lecturers and researchers (in either science or arts) of over 65 years of age are entitled to work at the University if the Senate approves that a fixed-term employment contract for a period not exceeding three years is concluded. Upon a decision of the Senate, such a contract may be renewed once” of Paragraph 9 of Article 15 of the Statute of Vilnius University, approved by the Republic of Lithuania’s Law on the Approval of the Statute of Vilnius University (wording of 6 May 2014), is in conflict with Article 29 of the Constitution of the Republic of Lithuania.

The Constitutional Court

has established:

I

The arguments of the petitioner

1. The Vilnius Regional Court, the petitioner, applied to the Constitutional Court after suspending the civil case in which the dispute arose regarding the lawfulness of the dismissal of the claimant from the position of a chief researcher at Vilnius University (hereinafter also referred to as VU) upon the termination of the fixed-term employment contract. The petitioner was examining the case following the appeal against the decision of the District Court of Vilnius City by which the claim was rejected having noted that all the possibilities provided for by the law to extend the employment relationship after the claimant had reached 65 years of age were exhausted.

2. According to the petitioner, the impugned legal regulation, laid down in Paragraph 9 of Article 15 of the Statute of Vilnius University (wording of 6 May 2014) (hereinafter also referred to as the Statute), provides for the limitation on the possibility of extending employment relationships that is linked only to the age of 65 years of a lecturer or a researcher (in either science or arts) of Vilnius University, regardless of whether this age has an essential impact on professional skills and whether this age precludes the person concerned from continuing to perform his/her duties (makes the person unfit to perform his/her duties). In the opinion of the petitioner, the impugned legal regulation, in the context of implementing the autonomy of higher education schools, which is guaranteed by Paragraph 3 of Article 40 of the Constitution, possibly violates the principle of the equality of the rights of persons, consolidated in Article 29 of the Constitution.

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 Seimas member Dovilė Šakalienė, acting as the representative of the Seimas of the Republic of Lithuania, the party concerned, in which it is maintained that the impugned legal regulation is possibly in conflict with the Constitution. The position of the representative of the Seimas, the party concerned, is substantiated by the following arguments.

3.1. In order to ensure the implementation of the provisions of Article 29 of the Constitution, which enshrine the equality of persons and the prohibition on restricting human rights and on granting any privileges on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views, as well as the prohibition on discriminating in the area of employment relationships, on 18 November 2003, the legislature adopted the Republic of Lithuania’s Law on Equal Opportunities. This law, as provided for in Paragraph 3 of Article 1 thereof, aims to ensure the application of the legal acts of the European Union (hereinafter also referred to as the EU) specified in the annex to this law. Thus, in deciding whether the impugned legal regulation is in conflict with Article 29 of the Constitution, it is necessary to assess the provisions of the Law on Equal Opportunities and the EU legal acts implemented by that law, inter alia, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (hereinafter referred to as Directive 2000/78/EC).

3.2. Although the general rule laid down in Directive 2000/78/EC prohibits any discrimination, Member States may provide, in accordance with Article 6 of that Directive, that different treatment on the grounds of age is not discrimination if, under national law, it is objectively and reasonably justified by a legitimate aim, including the legitimate objectives of employment policy, labour market, and vocational training, and if the means of achieving that aim are appropriate and necessary. In addition, in accordance with Paragraph 2 of the said article, Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age. Analogous provisions are laid down in Item 1 of Paragraph 9 of Article 2 of the Law on Equal Opportunities.

3.3. The resolution (XIII-1484) of the Seimas of 20 September 2018 on the approval of the Strategy for Demography, Migration, and Integration Policies for 2018–2030, in defining the main aim of the strategy for demography, migration, and integration policies – to ensure a positive change in the size of population and a proportionate population age structure, sets out the tasks to ensure the participation of older people in social and political life, as well as to ensure the participation of older people in the labour market and their financial security.

3.4. In accordance with Article 10 of the Republic of Lithuania’s Law on Science and Studies, a university conducts international-level fundamental and applied research, experimental development, and/or the development of professional art. It is indicated in Item 99 of the Strategy for Demography, Migration, and Integration Policies for 2018–2030 that older people have extensive professional and living experience and, therefore, it is important to create the opportunities for this experience to be used through participation in the labour market. The participation of older people in the labour market means greater income, the possibility of participating in social networks, as well as the sense that they are needed to contribute to the creation of general welfare, as long as they can and wish to. The integration of older people into the labour market is also important for the proportionate participation of people of different age groups in it.

3.5. In view of this, the impugned provision of the Statute, which limits the active participation of older people in the labour market, is possibly contrary to the currently pursued state policy and cannot be justified by the exceptions provided for in Article 6 of Directive 2000/78/EC and Item 1 of Paragraph 9 of Article 2 of the Law on Equal Opportunities; therefore, it is possibly in conflict with Article 29 of the Constitution.

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 Dr. Ingrida Mačernytė-Panomariovienė, the scientific secretary of the Law Institute of Lithuania, acting as the Director of that institute, Prof. Dr. Tomas Davulis, the Dean of the Faculty of Law of Vilnius University, also the written opinion that was prepared by Prof. Dr. Toma Birmontienė of the Institute of Public Law of Mykolas Romeris Law School of Mykolas Romeris University and was submitted by Prof. Dr. Lyra Jakulevičienė, the Dean of Mykolas Romeris Law School of Mykolas Romeris University, as well as the written opinion of Elvinas Jankevičius, the Acting Minister of Justice of the Republic of Lithuania.

4.1. In the written opinion of Dr. Ingrida Mačernytė-Panomariovienė, the scientific secretary of the Law Institute of Lithuania, acting as the Director of that institute, it is noted that, in assessing the compliance of the impugned legal regulation with the Constitution, it is important to take into account EU legal regulation, in particular Directive 2000/78/EC. In accordance with the provisions of that directive, discrimination on the grounds of age may be objectively justified by a legitimate objective if the means of achieving that objective are required and necessary. Such an objective is related to employment policy, the labour market, or self-learning. Different treatment on the grounds of age that would not be considered discrimination may include, among other things, the fixing of the maximum age for employment based on the requirements for training related to specific duties or on the need to determine the respective period of work completed before retirement.

In view of this and on the basis of the jurisprudence of the Court of Justice of the European Union (hereinafter also referred to as the CJEU) in this type of cases, such a legal regulation that sets the maximum employment age limit linked to the end of a career and this limit coincides with the retirement age is not considered to be discriminatory on the grounds of age, because it is justified by employment objectives and the wish to attract more young people to the labour market. In addition, the impugned legal regulation does not prevent further work, i.e. it allows employees who have reached the retirement age to continue working for three or six years. Thus, according to Ingrida Mačernytė-Panomariovienė, the impugned legal regulation is not in conflict with Article 29 of the Constitution.

4.2. In the written opinion of Prof. Dr. Tomas Davulis, the Dean of the Faculty of Law of Vilnius University, it is noted that the direct prohibition of discrimination on the grounds of age as a general principle of the EU is consolidated in Article 21 of the Charter of Fundamental Rights of the European Union. The content of this principle and the scope of its application are defined in Directive 2000/78/EC; Paragraph 1 of Article 6 of that directive also lays down an exception to this principle: Member States may provide that different treatment on the grounds of age is not discrimination if, under national law, it is objectively and reasonably justified by a legitimate aim, including the legitimate objectives of employment policy, labour market, and vocational training, and if the means of achieving that aim are appropriate and necessary.

In the opinion of Tomas Davulis, the limitation impugned in this constitutional justice case should be considered legitimate in formal terms, since it is established by means of a law. It aims to achieve the positive and significant aims envisaged in the Statute – to ensure the openness of VU, to maintain and strengthen leadership, the responsibility of VU, and the quality of studies. The limitation in question should be considered appropriate: it creates the conditions for ensuring that a lecturer or researcher of a certain age would not carry out active scientific and pedagogical activities, i.e. would not take the main administrative decisions or decisions on the assessment of academic achievements. It also allows the administration to take care of the employment of younger generation professionals and the planning of their academic career. This is in line with both the jurisprudence developed by the CJEU and the practice of other Member States.

The limitation laid down by the impugned norm should also be considered proportionate, since the law lays down not an absolute, but conditional prohibition: under certain conditions, a fixed-term employment contract can be concluded up to two times for a period of three years each time (a number of lecturers and researchers make use of this option); thus, the real age to which the end of the employment relationship is linked is up to 71 years. The fact that the time limit may be extended taking into account student opinions and the needs of study programme committees and the administration in ensuring the conducting of certain study programmes shows that the limitation in question meets the requirements of proportionality. Tomas Davulis also notes that older persons may, in accordance with the procedure established by VU, be granted the legal status of professor emeritus, which allows them to continue to participate in the life of the community of VU under the conditions and procedure determined by agreement between VU and the administration of the core academic units (to advise lecturers and students, conduct doctoral classes, participate in research, etc.). This circumstance is also significant in defining other possible forms of the retention of the social status for a former employee (as a result of the impugned provision of the Statute concerning a person who has been released due to his/her age) in the academic community.

4.3. In the written opinion of Prof. Dr. Toma Birmontienė of the Institute of Public Law of Mykolas Romeris Law School of Mykolas Romeris University, it is noted that the impugned provision of Paragraph 9 of Article 15 of the Statute should be interpreted in the context of all the provisions of that paragraph, as well as the provisions of Paragraphs 4, 10, and 12 of the said article. From the aspect of the impugned legal regulation, two criteria for the termination of an open-ended employment contract of a lecturer or a researcher (in either science or arts) are significant: the negative assessment of professional performance taking into account professional qualifications, professional qualities, and other important circumstances; and the age of the person (65 years).

The autonomy of a higher education school (university), as consolidated in Paragraph 3 of Article 40 of the Constitution, should provide the sufficient preconditions for an adequate assessment of the professional performance of a lecturer, taking into account the nature of the education provided by the higher education school (university) and the research fields chosen by the higher education school (university), as well as whether the lecturer meets the high qualification requirement, which is determined by the ability of the person to successfully and creatively perform scientific and pedagogical activities, and is not determined by his/her age.

The freedom to choose a job or business, consolidated in Paragraph 1 of Article 48 of the Constitution, also implies the right of a person to freely engage in science and research, which should be considered to be the professional activity of a lecturer or a researcher (in either science or arts), whose continuity (or the termination of an open-ended employment contract) should be linked to the ability of the person to successfully and creatively perform scientific and pedagogical activities, and not to his/her age. Thus, in the opinion of Prof. Dr. Toma Birmontienė, the impugned legal regulation, contained in Paragraph 9 of Article 15 of the Statute, insofar as, under that legal regulation, an open-ended employment contract may not be concluded with lecturers and researchers (in either science or arts) of over 65 years of age, is possibly in conflict with the provisions of Paragraph 1 of Article 48 of the Constitution, which imply, inter alia, the right of a person to freely decide whether to engage in science and research.

Prof. Dr. Toma Birmontienė also points out that neither the impugned provision nor other provisions of the Statute lay down the criteria to be taken into account by the Senate of VU (hereinafter also referred to as the Senate) when it approves the conclusion of a fixed-term employment contract with lecturers and researchers of over 65 years of age. Therefore, according to Prof. Dr. Birmontienė, the impugned provision of Paragraph 9 of Article 15 of the Statute is, also from the said aspect, possibly not in line with the requirements of the Constitution.

The age of a person is an important part of his/her private life and is an aspect of his/her dignity. The prohibition of discrimination, arising from Article 29 of the Constitution, which consolidates the principle of the equality of the rights of persons, should also be regarded as an element of the constitutional protection of human dignity. Therefore, in the opinion of Prof. Dr. Toma Birmontienė, the impugned legal regulation, laid down in Paragraph 9 of Article 15 of the Statute, is possibly in conflict not only with the provisions of Paragraph 1 of Article 48 of the Constitution, but also with the prohibition of discrimination on the grounds of age, laid down in Article 29 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

4.4. In the written opinion of Elvinas Jankevičius, Acting Minister of Justice, it is noted that the impugned provision of Paragraph 9 of Article 15 of the Statute should be considered to lay down the rules relating to employment and working conditions in accordance with Article 3(1)(c) of Directive 2000/78/EC and should be regarded as falling within the scope of the application of the said directive.

In this opinion, it is pointed out that, in the light of the relevant jurisprudence of the CJEU, the provisions of Directive 2000/78/EC, inter alia, Article 6(1) thereof, do not prohibit national law from establishing such provisions as the impugned legal regulation if these provisions are objectively and reasonably justified by a legitimate objective related to employment policy and the labour market and if the means of achieving that objective are appropriate and necessary. Elvinas Jankevičius points out that it is national courts that have to verify whether the conditions specified are met in a particular case, taking into account, among other things, whether the measures adopted contribute to the consistent and systematic achievement of the pursued objectives of employment policy (judgment of 10 March 2009 in the case of Hartlauer, C-169/07, paragraph 55; the judgment of 12 January 2010 in the case of Petersen, C-503/08, paragraph 53; the judgment of 18 November 2010 in the joined cases of Georgiev, C-250/09 and C-268/09, paragraph 68).

The Constitutional Court

holds that:

I

The impugned and related legal regulation

5. In this constitutional justice case, the petitioner impugns the legal regulation laid down in Paragraph 9 of Article 15 of the Statute (wording of 6 May 2014), under which, according to the petitioner, the possibility of extending employment relationships is linked only to the age of 65 years of a lecturer or a researcher (in either science or arts) of VU, regardless of whether this age has an essential impact on professional skills and whether this age precludes the person concerned from continuing to perform his/her duties (makes the person unfit to perform his/her duties).

6. On 6 May 2014, the Seimas adopted the Republic of Lithuania’s Law Amending the Law (No I-281) on the Approval of the Statute of Vilnius University; by this law, the Seimas approved the Statute of Vilnius University (hereinafter also referred to as the Statute of VU) in its new wording.

Paragraph 9 of Article 15 of the Statute consolidates the following provision, which is impugned in this constitutional justice case: “Lecturers and researchers (in either science or arts) of over 65 years of age are entitled to work at the University if the Senate approves that a fixed-term employment contract for a period not exceeding three years is concluded. Upon a decision of the Senate, such a contract may be renewed once”.

7. In the context of the constitutional justice case under consideration, it is necessary, from the impugned aspect, to reveal the development of the legal regulation laid down in the Statute of VU.

7.1. By the law of 12 June 1990, the Supreme Council of the Republic of Lithuania approved the Statute of Vilnius University, Item 5.7 of which prescribed the following: “A member of pedagogical and scientific staff may hold office up to 65 years of age; a member of the pedagogical and scientific staff who is over 65 years of age may hold office by a separate decision of the faculty council. The retired members of pedagogical and scientific staff may be provided with the conditions for scientific and pedagogical work by making use of the base of the University.”

Thus, following the restoration of the Independence of the Republic of Lithuania, the Statute of VU established the legal regulation under which:

the maximum age up to which the members of pedagogical and scientific staff could work at VU was 65 years;

the employment relationships of the members of pedagogical and scientific staff of over 65 years of age with VU could, by way of exception, be extended only by the decision of the faculty council.

7.2. On 23 April 2002, the Seimas adopted the Republic of Lithuania’s Law Amending the Law on the Approval of the Statute of Vilnius University; by that law, the Seimas approved the Statute of VU in its new wording, Paragraph 4 of Article 34 of which prescribed the following: “Lecturers and researchers of over 65 years of age are entitled to work at the University if the Senate approves that a fixed-term employment contract for a period not exceeding three years is concluded. Upon a decision of the Senate, such a contract may be renewed.”

Thus, under the legal regulation laid down in Paragraph 4 of Article 34 of the Statute of VU (wording of 23 April 2002), compared with the legal regulation laid down in Item 5.7 of that statute (wording of 12 June 1990), the maximum age up to which lecturers and researchers could work at VU remained 65 years; however, the legal regulation on extending, by way of exception, the employment relationships of lecturers and researchers of over 65 years with VU was changed: the employment relationships of lecturers and researchers with VU could be extended upon the approval of the Senate and the conclusion of a fixed-term employment contract with them for a period not exceeding three years; upon a decision of the Senate, such a contract could be renewed.

It should be noted that the legal regulation laid down in Paragraph 4 of Article 34 of the Statute of VU (wording of 23 April 2002) is, in principle, identical to the legal regulation laid down in the impugned provision of the Statute.

7.3. In this context, it should be noted that a legal regulation that is essentially identical to the impugned legal regulation and was established in other laws regulating the activities of institutions of science and studies, inter alia, higher education schools, was also in force for a certain period of time:

Paragraph 5 of Article 31 of the Republic of Lithuania’s Law on Higher Education, adopted by the Seimas on 21 March 2000, prescribed: “Lecturers and researchers of over 65 years of age may work in a higher education school if the senate (academic council) approves that a fixed-term employment contract for a period not exceeding three years is concluded. Upon a decision of the senate (academic council), such a contract may be renewed”;

Paragraph 4 of Article 35 of the Law on Science and Studies (wording of 11 June 2002) prescribed: “Members of scientific staff or other researchers of over 65 years of age are entitled to work at a research institution if the council of that institution approves that a fixed-term employment contract for a period not exceeding three years is concluded. Upon a decision of the council, such a contract may be renewed.”

It should be noted that such a general legal regulation lost its validity on 12 May 2009, when the Law on Science and Studies, which was adopted by the Seimas on 30 April 2009, entered into force and the Law on Higher Education (wording of 21 March 2000 as subsequently amended and supplemented) and the Law on Science and Studies (wording of 11 June 2002) became no longer valid. However, the legal regulation laid down in Paragraph 4 of Article 34 of the Statute of VU (wording of 23 April 2002) did not change from the impugned aspect; as mentioned before, an essentially identical legal regulation is also established in the Statute of Vilnius University in its new wording, as approved on 6 May 2014 by the Law Amending the Law (No I-281) on the Approval of the Statute of Vilnius University, i.e. in the impugned Paragraph 9 of Article 15 of the Statute.

8. It has been mentioned that the impugned Paragraph 9 of Article 15 of the Statute, among other things, allows lecturers and researchers (in either science or arts) of over 65 years of age to work at VU if the Senate approves that a fixed-term employment contract for a period not exceeding three years is concluded; upon a decision of the Senate, such a contract may be renewed once.

Thus, under the impugned legal regulation established in Paragraph 9 of Article 15 of the Statute, with the consent of the Senate, fixed-term employment contracts may be concluded twice with lecturers and researchers (in either science or arts) of over 65 years of age for a period not exceeding three years, i.e. for a total period not exceeding six years.

9. The impugned legal regulation, laid down in Paragraph 9 of Article 15 of the Statute, should be interpreted in the context of other provisions of the Statute and the related legal regulation.

9.1. Article 15 of the Statute, inter alia, prescribes the following:

for the first time, a lecturer or a researcher (in either science or arts) is employed in a position at a relevant core academic unit of the university by way of open competition for a period of five years, except in the cases specified in the Statute; a person who has won a competition for a position of a lecturer or a researcher (in either science or arts) is offered a fixed-term employment contract for this period (Paragraph 2);

at the end of the five-year term specified in Paragraph 2, an open competition may be announced for the same position not later than three months before the expiry of this term of office (Paragraph 3);

if a lecturer or a researcher (in either science or arts) wins a competition for the same position for the second time (i.e. at the end of the first 5-year employment contract), an open-ended employment contract is concluded with that person. This contract expires on the last day of an academic year in which the employee concerned attains 65 years of age (Paragraph 4).

9.1.1. Thus, Paragraph 4 of Article 15 of the Statute lays down the general rule that the employment relationships with VU of all lecturers and researchers (in either science or arts) who have concluded an open-ended employment contract with VU end on the last day of an academic year in which they attain 65 years of age.

In view of this, it should be noted that the impugned provision of Paragraph 9 of Article 15 of the Statute provides for an exception to the general rule, laid down in Paragraph 4 of Article 15 of the Statute, in relation to the employment relationships of lectures and researchers (in either science or arts) with VU until they reach 65 years of age.

9.1.2. In this context, it should also be noted that the age limit of 65 years at which lecturers or researchers (in either science or arts) are, under the impugned legal regulation, given the possibility of continuing their employment relationship with VU by way of exception is not lower than the age for an old-age pension. Under the legal regulation laid down in the Republic of Lithuania’s Law on State Social Insurance Pensions, the age for an old-age pension was always less than 65 years, while, according to the currently effective provisions of Article 15 (wording of 29 June 2016), Paragraph 1 (wording of 12 December 2017) of Article 57, and Annex 7 (wording of 12 December 2017) of the Republic of Lithuania’s Law on Social Insurance Pensions, the age for an old-age pension for men and women will have to reach the age limit of 65 years on 1 January 2026.

9.1.3. In this context, it should be noted that Paragraph 1 of Article 20 of the Statute provides that a professor who has reached the retirement age established by laws and is terminating the employment contract with VU, as well as a former professor of VU, may be granted the title (status) of professor emeritus for exceptional achievement in science, art, or teaching; under Paragraph 2 of the same article, a professor emeritus is entitled to receive a monthly payment in the sum determined by the Council of VU and is provided with a possibility of participating in the academic and other activities of VU. Paragraph 3 of Article 20 of the Statute provides that, under the procedure established by the Senate, other long-serving lecturers and researchers (in either science or arts) of VU who have reached the retirement age established by laws may be granted the title (status) of an affiliated lecturer or researcher (in either science or arts) of VU and/or any other honorary title (status) of a lecturer or a researcher (in either science or arts) of merit to the university; under Paragraph 4 of this article, affiliated lecturers and researchers (in either science or arts) and other lecturers and researchers (in either science or arts) of merit to VU are offered the possibilities of maintaining scientific, pedagogical, and creative relationships with VU.

9.2. Article 26 of the Statute provides that the self-governance of the community of VU is implemented by the governing bodies of VU – inter alia, the Senate and the Rector – in accordance with their competences. Under Paragraph 1 of Article 32 of the Statute, it is the Senate who is responsible for supervising the implementation of the mission, the objectives, tasks, and principles of the activities, and the general academic interests of VU, for ensuring the freedom of culture, science, research, and teaching at the university, also for the collegial discussion of general academic affairs of VU and other issues directly related to the academic activities of the entire university, and for the adoption of legal acts necessary for their implementation. Article 34 of the Statute provides that the Senate is formed for four years (Paragraph 1) from representatives of core academic units, representatives appointed (elected) by students, and the Rector (Paragraph 2): besides the Rector, two fifths of the Senate members must consist of persons representing the areas of biomedical, physical, and technological sciences, two fifths must be persons representing the areas of social sciences, the humanities, and arts, and one fifth must be representatives of the university students; at least half of the elected Senate members must be composed of professors or chief researchers (in either science or arts) and at least one fifth of associated professors and senior researchers (in either science or arts) (Paragraph 6).

Thus, under the legal regulation laid down in the Statute, inter alia, Article 26, Paragraph 1 of Article 32, and Paragraphs 1, 2, and 6 of Article 34 thereof, the Senate is a collegial governing body of VU, which is formed for four years, directly represents the academic community of VU and implements its self-governance, and is responsible, inter alia, for supervising the implementation of the mission, the objectives, tasks, and principles of the activities, and the general academic interests of VU.

9.3. The provision of Item 31 of Paragraph 1 of Article 33 of the Statute is also of relevance from the aspect impugned by the petitioner; this item provides for the powers of the Senate, on submission by the Rector, to consider the applications of lecturers and researchers (in either science or arts) of over 65 years of age for the conclusion of fixed-term employment contracts for a period not exceeding three years.

It should be noted that neither the said item nor the impugned Paragraph 9 of Article 15 of the Statute sets out the criteria based on which the Senate, on submission by the Rector, considers the applications of lecturers and researchers (in either science or arts) of over 65 years of age, i.e. the criteria based on which the conclusion of fixed-term employment contracts is approved by the Senate.

9.3.1. In this context, it should be noted that, in accordance with Paragraph 12 of Article 15 of the Statute, the minimum qualification requirements, the procedure for holding competitions for a position of a lecturer or a researcher (in either science or arts), the procedure for the appointment of lecturers or researchers (in either science or arts) without competition and their release from duties, the procedure for the performance assessment of lecturers and researchers (in either science or arts) (including the procedure for determining the grounds for extraordinary performance assessment and the conditions and procedure for granting pedagogical titles), the conditions and procedure for the conclusion of fixed-term contracts with lecturers and researchers (in either science or arts), and the conditions and procedure for the academic career of lecturers and researchers (in either science or arts) are laid down in the Regulations on Research, Artistic Activity, and Studies; these regulations are approved by the Senate on submission by the Rector (Item 12 of Paragraph 1 of Article 33 of the Statute).

Thus, under the legal regulation laid down in Paragraph 12 of Article 15 and Item 12 of Paragraph 1 of Article 33 of the Statute, the minimum qualification requirements, inter alia, for those lecturers and researchers (in either science or arts) of over 65 years of age who seek to continue their employment relationship with VU, as well as the conditions and procedure for the conclusion of fixed-term contracts, inter alia, with VU lecturers and researchers (in either science or arts) of over 65 years of age, are established by the Senate on submission by the Rector.

9.3.2. In this context, it should also be noted that, by its resolution (No S-2018-12-4) of 20 November 2018, adopted in accordance with, inter alia, Item 12 of Paragraph 1 of Article 33 of the Statute, the Senate approved the Regulations on Organising Competitions for the Positions of Lecturers and Researchers (in either Science or Arts) of Vilnius University and Performance Assessment; Item 4 of these regulations, among other things, provides that lecturers and researchers of over 65 years of age are entitled to work at VU if they meet the minimum qualification requirements for performance assessment, which are set out in Annex 2 to these regulations, i.e. depending on the position held, they have published a certain number of scientific works, have carried out (participated in carrying out) research and/or have supervised it, have organised scientific events or/and participated in scientific activities, and have teaching experience, and, if the Senate approves that a fixed-term employment contract is concluded with them in accordance with the procedure laid down in the Statute.

10. To sum up the impugned and related legal regulation laid down in Paragraph 9 of Article 15 of the Statute, it should be noted that:

Paragraph 9 of Article 15 of the Statute expresses the continuity of the legal regulation that has been laid down in the Statute of VU (wordings of 12 June 1990 and 23 April 2002) since the restoration of the Independence of the Republic of Lithuania and according to which the employment relationships of lecturers and researchers of over 65 years with VU are extended by way of exception;

the provision of Paragraph 9 of Article 15 of the Statute provides for an exception to the general rule, laid down in Paragraph 4 of the same article, in relation to the employment relationships of lectures and researchers (in either science or arts) with VU until they reach 65 years of age: with the approval of the Senate – the collegial governing body of VU, which represents the academic community of VU and implements its self-governance, fixed-term employment contracts may be concluded twice with lecturers and researchers (in either science or arts) of over 65 years of age for a period not exceeding three years, i.e. for a total period not exceeding six years;

the age limit of 65 years, which is provided for in Paragraphs 4 and 9 of Article 15 of the Statute and at which lecturers or researchers (in either science or arts) are, under the impugned legal regulation, given the possibility of continuing their employment relationship with VU by way of exception, is not lower than the age for an old-age pension, which is laid down in the Law on Social Insurance Pensions (as amended on 12 December 2017); Paragraphs 1 and 4 of Article 20 of the Statute lay down the conditions for the professors and other long-serving lecturers and researchers (in either science or arts) of VU who have reached the retirement age to maintain scientific, pedagogical, and creative relationships with VU upon the termination of their employment contracts with VU;

under Item 31 of Paragraph 1 of Article 33 of the Statute, on submission by the Rector, the Senate considers the applications of lecturers and researchers (in either science or arts) of over 65 years of age for the conclusion of fixed-term employment contracts for a period not exceeding three years; however, neither the said item nor the impugned Paragraph 9 of Article 15 of the Statute sets out the criteria based on which the conclusion of such fixed-term employment contracts is approved by the Senate.

II

The legal regulation laid down in the legal acts of the European Union

11. Paragraph 1 of Article 21 “Non-discrimination” of the Charter of Fundamental Rights of the European Union provides that any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, or sexual orientation is prohibited.

12. In the context of this constitutional justice case, Directive 2000/78/EC is relevant; the purpose of that Directive (under Article 1 thereof) is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age, or sexual orientation as regards employment and occupation, with a view to putting into effect, in the Member States, the principle of equal treatment. In accordance with Article 2(1) of Directive 2000/78/EC, the principle of equal treatment means that there is no direct or indirect discrimination whatsoever (defined in Article 2(2) of that Directive) on any of the grounds referred to in Article 1 thereof.

12.1. Recital 25 of Directive 2000/78/EC provides that the prohibition of age discrimination is an essential part of meeting the aims set out in the 2000 Employment Guidelines, endorsed by the Helsinki European Council on 10–12 December 1999, and encouraging diversity in the workforce; however, it is noted that differences in treatment in connection with age may be justified under certain circumstances and, therefore, require specific provisions that may vary in accordance with the situation in Member States. It is, therefore, essential to distinguish between differences in treatment that are justified by legitimate employment policy, labour market, and vocational training objectives and discrimination that must be prohibited.

12.2. Paragraph 1 of Article 6 “Justification of Differences of Treatment on Grounds of Age” of Directive 2000/78/EC stipulates that, notwithstanding Article 2(2), i.e. the concepts consolidated therein, Member States may provide that differences of treatment on the grounds of age do not constitute discrimination if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market, and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

In accordance with Article 6(1) of Directive 2000/78/EC, such differences of treatment may include, among others:

a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

b) the fixing of minimum conditions of age, professional experience, or seniority in service for access to employment or to certain advantages linked to employment;

c) the fixing of a maximum age for recruitment, which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

12.3. Thus, under the legal regulation laid down in Directive 2000/78/EC, differences of treatment on the grounds of age do not constitute discrimination if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including the legitimate objectives of employment policy, labour market, and vocational training, and if the means of achieving that aim are appropriate and necessary, including the establishment of a maximum age limit in the field of employment relationships.

13. In its interpretation of the provisions of Directive 2000/78/EC, the Court of Justice of the European Union has more than once held that such national legislation according to which the fact that a worker has reached the retirement age laid down by that legislation leads to the automatic termination of his/her employment contract must be regarded as directly imposing less favourable treatment for workers who have reached that age as compared with all other working persons. Such legislation, therefore, consolidates differences of treatment on the grounds of age, referred to in Article 2(1) and Article 2(2)(a) of Directive 2000/78/EC (judgment of 16 October 2007 in the case of Palacios de la Villa, C-411/05, paragraph 51; the judgment of 12 October 2010 in the case of Rosenbladt, C-45/09, paragraph 37).

13.1. In line with the arguments put forward by the CJEU, the Member States have considerable discretion at the national level to identify not only the specific objective of social and employment policy, but also the measures that would be appropriate to achieve it (judgment of 22 November 2005 in the case of Mangold, C-144/04, paragraph 63; the judgment of 16 October 2007 in the case of Palacios de la Villa, C-411/05, paragraph 68).

13.2. According to the jurisprudence of the CJEU, the provision of Article 6(1) of Directive 2000/78/EC should not be interpreted in such a way that a lack of precision in the national legislation as regards the aim pursued by it automatically excludes the possibility that it may be justified under that provision (judgment of 16 October 2007 in the case of Palacios de la Villa, C-411/05, paragraph 56). Where the national legislation does not specify the aim pursued, it is important that other elements, taken from the general context of the measure concerned, enable the underlying aim of that measure to be identified for the purposes of review by the courts of whether it is legitimate and whether the means put in place to achieve it are appropriate and necessary (judgment of 18 November 2010 in the joined cases of Georgiev, C-250/09 and C-268/09, paragraph 40).

When assessing whether a national measure is objectively and reasonably justified by a legitimate objective relating to employment policy and the labour market, the CJEU points out that the automatic termination of employment relationships with employees who meet all the conditions as regards age and the payment of contributions in order to make use of the rights to a pension has long been an integral part of employment law in many Member States and is widely applied in employment relationships; it is a mechanism that is based on the balance to be struck between political, economic, social, demographic, and/or budgetary considerations and the choice to be made between prolonging people’s working lives or, conversely, providing for early retirement (judgment of 16 October 2007 in the case of Palacios de la Villa, C-411/05, paragraph 69; the judgment of 12 October 2010 in the case of Rosenbladt, C-45/09, paragraph 44). The CJEU has also pointed out that the encouragement of recruitment undoubtedly constitutes a legitimate objective of social policy or employment policy of the Member States, in particular to facilitate the recruitment of young people; therefore, the encouragement of recruitment in the field of higher education by means of offering the posts of professors to younger persons may constitute such a legitimate objective (judgment of 16 October 2007 in the case of Palacios de la Villa, C-411/05, paragraph 65; the judgment of 12 January 2010 in the case of Petersen, C-341/08, paragraph 68; the judgment of 18 November 2010 in the joined cases of Georgiev, C-250/09 and C-268/09, paragraph 45).

13.3. When assessing the establishment of an age limit for compulsory retirement in the field of the recruitment of university researchers, the CJEU has held that, insofar as the posts for university professors are, in general, of a limited number and open only to people who have attained the highest qualifications in the field concerned, and since a vacant post has to be available for a professor to be appointed, the Court takes the view that a Member State may consider it appropriate to set an age limit to achieve such objectives of employment policy (judgment of 18 November 2010 in the joined cases of Georgiev, C-250/09 and C-268/09, paragraph 52). According to the CJEU, as for the age limit of 68 years (from which the employment relationship with a professor can no longer be continued), it is apparent that it is five years higher than the statutory age at which natural persons may normally acquire the right to an old-age pension and be made to take retirement in the Member State concerned; it allows university professors, who are offered the opportunity to work until 68 years, to pursue their careers for a relatively long period. Such a measure cannot be regarded as unduly prejudicing the legitimate claims of workers subject to compulsory retirement because they have reached the age limit provided for; the relevant legislation is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by way of a retirement pension at the end of their working life, such as that provided for by the national legislation (judgment of 18 November 2010 in the joined cases of Georgiev, C-250/09 and C-268/09, paragraph 54); the setting of an age limit for the termination of an employment contract does not exceed what is necessary to attain employment policy aims such as the objective of allocating the posts for professors in the best possible way between the generations and the encouragement of recruitment in the field of higher education by means of offering the posts of professors to younger persons, provided that the national legislation reflects those aims in a consistent and systematic manner (judgment of 18 November 2010 in the joined cases of Georgiev, C-250/09 and C-268/09, paragraphs 45, 46, and 55).

13.4. Thus, according to the jurisprudence of the CJEU, the provisions of Directive 2000/78/EC, inter alia, Article 6(1) thereof, do not preclude the establishment of national legal provisions such as the one impugned in this constitutional justice case, provided that, first of all, such provisions are objectively and reasonably justified by a legitimate objective related to employment policy and the labour market (such a legitimate objective may be facilitating the recruitment of young people, inter alia, by means of offering the posts of professors to younger persons) and, second, the means of achieving that objective are appropriate and necessary.

It should be noted that the CJEU takes the view that it is national courts that have to verify whether the conditions specified are met in a particular case, taking into account, among other things, whether the measures adopted contribute to the consistent and systematic achievement of the pursued objectives of employment policy (judgment of 12 January 2010 in the case of Petersen, C-341/08, paragraph 53; the judgment of 18 November 2010 in the joined cases of Georgiev, C-250/09 and C-268/09, paragraph 68).

III

The provisions of the Constitution and the official constitutional doctrine

14. In this constitutional justice case, the Constitutional Court is investigating whether the provision of Paragraph 9 of Article 15 of the Statute, according to which the employment relationships of lecturers and researchers (in either science or arts) of over 65 years of age may be extended only with the approval of the Senate and only for a certain period of time under a fixed-term employment contract with VU, complies with Article 29 of the Constitution.

15. The Constitutional Court has held on more than one occasion that the principle of the equality of the rights of persons, as consolidated in Article 29 of the Constitution, gives rise to the requirement that fundamental rights and duties be established in law equally to all; this principle means the right of an individual to be treated equally with others and it imposes the obligation to assess homogeneous facts in the same manner and prohibits any arbitrary assessment of essentially the same facts in a different manner; the constitutional principle of the equality of persons would be violated if certain persons or their groups were treated differently, although between them there are no differences of such nature and scope that would objectively justify their unequal treatment (inter alia, the rulings of 22 February 2013, 25 January 2017, and 10 February 2020); in assessing whether a different legal regulation has been established reasonably, account must be taken of concrete legal circumstances; first of all, consideration must be given to differences in the legal situation of the persons and objects to which a certain differentiated legal regulation is applied (inter alia, the rulings of 22 September 2015, 19 December 2018, and 8 July 2020).

The Constitutional Court has noted that the content of the constitutional principle of the equality of the rights of persons can be revealed only if Paragraphs 1 and 2 of Article 29 of the Constitution are interpreted in conjunction with one another; Paragraph 2 of Article 29 of the Constitution, which prescribes, inter alia, that human rights may not be restricted on the grounds of gender, race, nationality, language, origin, social status, belief, convictions, or views, may not be understood as consolidating an exhaustive list of the grounds of non-discrimination; otherwise, the preconditions would be created for denying the equality of all persons before the law, courts, and other state institutions, i.e. the very essence of the constitutional principle of the equality of the rights of persons, as guaranteed under Paragraph 1 of Article 29 of the Constitution (rulings of 11 January 2019, 10 February 2020, and 3 June 2020). One of the grounds of discrimination prohibited by Article 29 of the Constitution is the restriction of human rights on the basis of age (rulings of 10 February 2020 and 3 June 2020).

The Constitutional Court has also held on more than one occasion that, as such, a differentiated legal regulation when it is applied to certain groups of persons that are characterised by the same features and when it is aimed to achieve positive and socially meaningful objectives, or when the establishment of certain limitations or conditions is linked to the particularities of the regulated social relationships, should not be regarded as discriminatory (inter alia, the rulings of 31 May 2006, 3 July 2014, and 8 July 2020).

16. The principle of the equality of the rights of persons, consolidated in Article 29 of the Constitution, should be interpreted inseparably from other provisions of the Constitution, inter alia, the provisions establishing the rights and freedoms of individuals, as well as from the constitutional principle of a state under the rule of law, on which the entire legal system of Lithuania and the Constitution itself are based (inter alia, the rulings of 9 November 2010, 15 February 2013, and 6 February 2015).

As more than once pointed out by the Constitutional Court, the constitutional principle of a state under the rule of law implies various requirements for the legislature and other law-making entities, inter alia: the requirements laid down in legal acts must be based on general provisions (legal norms and principles), which can be applied to all envisaged subjects of the respective legal relationships; a differentiated legal regulation must be based only on objective differences in the situation of the subjects of certain social relationships regulated by the respective legal acts; the subjects of legal relationships must be aware of what law requires of them; in the legal regulation of social relationships, it is obligatory to pay regard to the requirements of natural justice, comprising, inter alia, the necessity to ensure the equality of persons before the law, courts, state institutions, or officials, etc. (inter alia, the rulings of 13 December 2004, 16 January 2006, and 22 March 2010).

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 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, 8 November 2019, and 11 September 2020).

17. The provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution is relevant to this constitutional justice case.

The Constitutional Court has noted that the right of a person to freely choose an occupation, which is enshrined in Paragraph 1 of Article 48 of the Constitution, implies the possibility of freely choosing not only a job or a business in the sphere of private economic activity, but also other employment activities of a varied nature (rulings of 17 February 2016 and 19 September 2019); the constitutional freedom of each individual to choose a job or business also implies the right to freely choose and acquire a profession (rulings of 20 February 2008 and 22 December 2011). Therefore, this freedom, consolidated in Paragraph 1 of Article 48 of the Constitution, also includes the right of an individual to freely decide whether to engage in science and research (ruling of 22 December 2011).

The right of a person to freely choose an occupation, which is enshrined in Paragraph 1 of Article 48 of the Constitution, may be limited if the following conditions are met: 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 and freedoms; the constitutional principle of proportionality is followed (inter alia, the rulings of 11 December 2009, 17 February 2016, and 19 September 2019).

In this context, it should be noted that, as held by the Constitutional Court in its ruling of 22 March 2010, such a legal regulation must be established whereby persons exercising the right to freely choose a job or business, as consolidated in Article 48 of the Constitution, are subject to uniform conditions for professional activity; otherwise, the preconditions would be created for violating the imperatives arising from Articles 29 and 48 of the Constitution and the constitutional principle of a state under the rule of law.

18. The provision “Schools of higher education shall be granted autonomy” of Paragraph 3 of Article 40 of the Constitution is also relevant to this constitutional justice case.

18.1. The Constitutional Court has noted that, the autonomy of a higher education school is traditionally conceived as the right independently to determine and establish, in its regulations or statute, the organisational and governance structure, relationships with other partners, the procedure for research and studies, study programmes, and the procedure for student admission, as well as to decide on other related questions, to use property transferred by the state or acquired property, to possess certain territory and buildings, as well as other property allocated for the needs of research and studies, and to have the guarantee of inviolability; for this purpose, a higher education school is guaranteed institutional autonomy, i.e. a certain status, which means that there are certain spheres of activities independent from control by the executive power (inter alia, 27 June 1994, 22 December 2011, and 29 June 2018). The autonomy of higher education schools must be related to their mission to prepare specialists of various spheres, who have acquired higher education and meet the needs of society and the state; thus, the autonomy of higher education schools must also be related to the great responsibility of higher education schools for the quality of higher education (decisions of 1 February 2008 and 28 October 2009 and the ruling of 19 June 2018).

At the same time, it should be noted that the autonomy of higher education schools is not absolute (rulings of 5 May 2007 and 3 December 2020); higher education schools must act in compliance with the Constitution and law (inter alia, the rulings of 20 March 2008, 29 June 2018, and 3 December 2020).

18.2. The Constitutional Court has also held that the autonomy of higher education schools, guaranteed by Paragraph 3 of Article 40 of the Constitution, implies the self-governance of the academic community of these schools, implemented, inter alia, through the governing bodies of a higher education school, which represent the said community (rulings of 22 December 2011 and 10 November 2014); Paragraph 3 of Article 40 of the Constitution gives rise, inter alia, to the right of the collegial bodies directly representing the academic community of the respective higher education school and exercising its self-governance to independently solve strategic and other major issues related to the governance of the higher education school (ruling of 22 December 2011).

18.3. In its ruling of 20 March 2008, the Constitutional Court noted that, in order that higher education schools would be able to perform their constitutional obligation – to provide higher education that meets the standards established by the state, it is especially important that highly qualified lecturers work in them; this condition of good-quality higher education is inseparable not only from the constitutionally consolidated freedom of science, research, and teaching, but also from the existing higher education infrastructure and investment by the state into this infrastructure, as well as from the structure of higher education schools (which should not be regulated by national legal acts in such a manner that would impede the dynamism of scientific and pedagogical activity and the mobility of lecturers and scientists).

In its ruling of 5 May 2007, the Constitutional Court also noted that the provision of Paragraph 3 of Article 40 of the Constitution, whereby higher education schools are granted autonomy, and other provisions of the Constitution also imply that, when a decision is made as to what requirements must be met by a scientist in order to make it possible to hold that his/her qualification is such that allows him/her to be eligible for holding certain positions at state higher education schools, scientific institutes under state universities, state scientific institutes, or state educational establishments, it is necessary to attentively listen to the opinion of state and other authoritative education institutions, which unite scientists of various areas and fields of science; in the regulation of these relationships (no matter by what legal acts they are regulated), regard must be paid to the norms and principles of the Constitution, inter alia, the constitutional principle of a state under the rule of law, which includes, among other things, legal certainty, legal clarity, and legal security, and which implies the necessity to ensure the protection of legitimate expectations.

18.4. The provision of Paragraph 3 of Article 40 of the Constitution does not prohibit differentiating, by taking account of various important criteria, the legal status of higher education schools of different types or the rights and the limits of the autonomy of higher education schools of the same type; where the status of higher education schools is differentiated on the basis of various important criteria, account must be taken, inter alia, of the historical traditions of a particular higher education school and the traditions of self-governance based on the established democratic principles of governance, as well as of the fostering of the continuity of these traditions; under Paragraph 3 of Article 40 of the Constitution, in certain cases, with respect to particular higher education schools, it is allowed to establish special norms defining the rights, the limits of autonomy, and the organisational and governance structure of these schools, which will differ from those established under the general legal regulation provided for by means of laws with respect to all higher education schools (ruling of 22 December 2011).

The constitutional guarantee of the autonomy of higher education schools implies that the legislature must provide for a special legal regulation; the general legal regulation established by means of laws with respect to all higher education schools should not be excessively detailed and should not limit the right of higher education schools to regulate their activities by means of local legal acts, which stems from the principle of their autonomy (ruling of 22 December 2011).

18.5. In this context, it should be noted that Vilnius University, founded in 1579, is one of the oldest and most famous universities in Central and Eastern Europe, which has contributed to not only Lithuanian, but also European and global development of science and culture. Therefore, having regard to the constitutional guarantee of the autonomy of higher education schools, the legislature must establish such a special legal regulation in the Statute of Vilnius University (traditionally approved by means of a law) under which account is taken of the significance of this higher education school for the development of the Lithuanian state and society in the European and global context, inter alia, account is taken of the long-standing traditions of the self-governance of this university based on the principles of democracy.

19. In the context of the constitutional justice case under consideration, it should be noted that the autonomy of higher education schools, guaranteed by Paragraph 3 of Article 40 of the Constitution, implies, inter alia, the right of these schools to pursue such policy regarding the employment of scientists and lecturers according to which, in the light of the established traditions of the self-governance of the higher education school and the academic community, the quality of higher education is linked to the need for the dynamism of scientific and pedagogical activities and for the change of the generations of scientists and lecturers. In view of this, the establishment of a maximum age limit up to which scientists and lecturers may work in a higher education school in cases where the legislature regulates the activities of a higher education school should not, in itself, be considered to constitute discrimination on the grounds of age, which is prohibited by Article 29 of the Constitution, as it aims to achieve the constitutionally important objective of ensuring the quality of higher education by securing a consistent and optimal change of scientists and lecturers in order to encourage younger highly qualified scientists and lecturers to work in a higher education school. It should be noted that, when a maximum age limit up to which scientists and lecturers may work in a higher education school is established, regard must be paid to the requirement, arising from the constitutional principle of proportionality as one of the elements of the constitutional principle of a state under the rule of law, not to limit, by that measure, the rights of a person more than necessary in order to achieve the above-mentioned constitutionally justifiable objective.

At the same time, it should be noted that, having regard to the objectives pursued by the policy of the employment of scientists and lecturers, which are implied by the autonomy of higher education schools, guaranteed by Paragraph 3 of Article 40 of the Constitution, the legislature, after having established a maximum age limit up to which scientists and lecturers may work in a higher education school, it may also provide, in individual cases and by way of exception, for the possibility of work in a higher education school for scientists and lecturers who are above the established maximum age. Such a legal regulation must respect, inter alia, the constitutional principles of the equality of the rights of persons and a state under the rule of law, including the imperatives of legal certainty and legal clarity.

IV

The assessment of the compliance of the provision of Paragraph 9 of Article 15 of the Statute of Vilnius University with the Constitution

20. The Vilnius Regional Court, the petitioner, requests an investigation into whether the provision “Lecturers and researchers (in either science or arts) of over 65 years of age are entitled to work at the University if the Senate approves that a fixed-term employment contract for a period not exceeding three years is concluded. Upon a decision of the Senate, such a contract may be renewed once” of Paragraph 9 of Article 15 of the Statute is in conflict with Article 29 of the Constitution.

21. According to the petitioner, the impugned legal regulation, laid down in Paragraph 9 of Article 15 of the Statute, whereby the established limitation on the possibility of extending employment relationships is linked only to the age of 65 years of a lecturer or a researcher (in either science or arts) of VU, regardless of whether this age has an essential impact on professional skills and whether this age precludes the person concerned from continuing to perform his/her duties (makes the person unfit to perform his/her duties), in the context of the implementation of the autonomy of higher education schools, possibly violates the principle of the equality of the rights of persons, consolidated in Article 29 of the Constitution.

22. In deciding whether the impugned provision of Paragraph 9 of Article 15 of the Statute is in conflict with the Constitution, it should be noted that, as mentioned before:

the autonomy of higher education schools, guaranteed under Paragraph 3 of Article 40 of the Constitution, implies, inter alia, the right of these schools to pursue such policy regarding the employment of scientists and lecturers according to which, in the light of the established traditions of the self-governance of the higher education school and the academic community, the quality of higher education is linked to the need for the dynamism of scientific and pedagogical activities and for the change of the generations of scientists and lecturers; in view of this, the establishment of a maximum age limit up to which scientists and lecturers may work in a higher education school in cases where the legislature regulates the activities of a higher education school should not, in itself, be considered to constitute discrimination on the grounds of age, which is prohibited by Article 29 of the Constitution, as it aims to achieve the constitutionally important objective of ensuring the quality of higher education by securing a consistent and optimal change of scientists and lecturers in order to encourage younger highly qualified scientists and lecturers to work in a higher education school;

when a maximum age limit up to which scientists and lecturers may work in a higher education school is established, regard must be paid to the requirement, arising from the constitutional principle of proportionality as one of the elements of the constitutional principle of a state under the rule of law, not to limit, by that measure, the rights of a person more than necessary in order to achieve the above-mentioned constitutionally justifiable objective;

having regard to the objectives pursued by the policy of the employment of scientists and lecturers, which are implied by the autonomy of higher education schools, guaranteed by Paragraph 3 of Article 40 of the Constitution, the legislature may provide, in individual cases and by way of exception, for the possibility of work in a higher education school for scientists and lecturers who are above the established maximum age; such a legal regulation must respect, inter alia, the constitutional principles of the equality of the rights of persons and a state under the rule of law, including the imperatives of legal certainty and legal clarity;

such a legal regulation must be established whereby persons exercising the right to freely choose a job or business, as consolidated in Article 48 of the Constitution, are subject to uniform conditions for professional activity; otherwise, the preconditions would be created for violating the imperatives arising from Articles 29 and 48 of the Constitution and the constitutional principle of a state under the rule of law.

22.1. To sum up the impugned legal regulation, laid down in Paragraph 9 of Article 15 of the Statute, and the related legal regulation, it should be noted that it has been mentioned that:

the impugned provision of Paragraph 9 of Article 15 of the Statute expresses the continuity of the legal regulation that has been laid down in the Statute of VU (wordings of 12 June 1990 and 23 April 2002) since the restoration of the Independence of the Republic of Lithuania and according to which the employment relationships of lecturers and researchers of over 65 years with VU are extended by way of exception;

the provision of Paragraph 9 of Article 15 of the Statute provides for an exception to the general rule, laid down in Paragraph 4 of the same article, in relation to the employment relationships of lectures and researchers (in either science or arts) with VU until they reach 65 years of age: with the approval of the Senate – the collegial governing body of VU, which directly represents the academic community of VU and implements its self-governance, fixed-term employment contracts may be concluded twice with lecturers and researchers (in either science or arts) of over 65 years of age for a period not exceeding three years, i.e. for a total period not exceeding six years;

the age limit of 65 years, which is provided for in Paragraphs 4 and 9 of Article 15 of the Statute and at which lecturers or researchers (in either science or arts) are, under the impugned legal regulation, given the possibility of continuing their employment relationship with VU by way of exception, is not lower than the age for an old-age pension, which is laid down in the Law on Social Insurance Pensions (as amended on 12 December 2017); Paragraphs 1 and 4 of Article 20 of the Statute lay down the conditions for the professors and other long-serving lecturers and researchers (in either science or arts) of VU who have reached the retirement age to maintain scientific, pedagogical, and creative relationships with VU upon the termination of their employment contracts with VU;

under Item 31 of Paragraph 1 of Article 33 of the Statute, on submission by the Rector, the Senate considers the applications of lecturers and researchers (in either science or arts) of over 65 years of age for the conclusion of fixed-term employment contracts for a period not exceeding three years; however, the said item, the impugned provision of Paragraph 9 of Article 15 of the Statute, or other provisions of the Statute do not set out the criteria based on which the conclusion of such fixed-term employment contracts is approved by the Senate.

22.2. In assessing the impugned provision of Paragraph 9 of Article 15 of the Statute, it should be noted that the legal regulation establishing the maximum age limit of 65 years, above which lecturers and researchers (in either science or arts) may work at VU only by way of exception, implements the right of VU, which is implied by the autonomy of this higher education school, guaranteed by Paragraph 3 of Article 40 of the Constitution, to pursue such policy regarding the employment of scientists and lecturers according to which, in the light of the tradition developed by VU since the restoration of the Independence of the Republic of Lithuania, the quality of higher education is linked to the need for the dynamism of scientific and pedagogical activities and for the changes of the generations of scientists and lecturers. Thus, the establishment of the maximum age limit of 65 years, up to which scientists and lecturers may normally work in VU, aims to achieve the constitutionally important objective of ensuring the quality of higher education by securing a consistent and optimal change of scientists and lecturers in order to encourage younger highly qualified scientists and lecturers to work in VU.

It should be held that, in the light of the whole legal regulation, there are no grounds for stating that the establishment of the maximum age limit of 65 years, up to which scientists and lecturers may normally work in VU, means that no regard is paid to the requirement, arising from the constitutional principle of proportionality as one of the elements of the constitutional principle of a state under the rule of law, not to limit, by that measure, the rights of a person more than necessary in order to achieve the above-mentioned constitutionally justifiable objective. As mentioned before, the age limit of 65 years is not lower than the age, which is laid down by means of a law, for an old-age pension; in addition, other provisions of the Statute lay down the conditions for the professors and other long-serving lecturers and researchers (in either science or arts) of VU who have reached the retirement age to maintain scientific, pedagogical, and creative relationships with VU upon the termination of their employment contracts with VU.

Thus, the establishment of the maximum age limit of 65 years, up to which scientists and lecturers may normally work in VU, should be considered a necessary and proportionate measure to achieve the constitutionally important objective of ensuring the quality of higher education by securing a consistent and optimal change of scientists and lecturers in order to encourage younger highly qualified scientists and lecturers to work in VU. It should be noted that such a measure is applied to all VU lecturers and researchers (in either science or arts) who have reached this age.

Consequently, the impugned provision of Paragraph 9 of Article 15 of the Statute, from the aspect that it sets the maximum age limit of 65 years, above which lecturers and researchers (in either science or arts) may work in VU only by way of exception, cannot be regarded as violating the prohibition of discrimination on the grounds of age, consolidated in Article 29 of the Constitution.

22.3. In assessing the impugned provision of Paragraph 9 of Article 15 of the Statute, it should also be noted that, under this provision, with the approval of the Senate – the collegial governing body of VU, which directly represents the academic community of VU and implements its self-governance, fixed-term employment contracts may be concluded twice with lecturers and researchers (in either science or arts) of over 65 years of age for a period not exceeding three years, i.e. for a total period not exceeding six years. By such a legal regulation, having regard to the objectives pursued by the policy of the employment of scientists and lecturers, which are implied by the autonomy of VU, guaranteed by Paragraph 3 of Article 40 of the Constitution, the legislature has, in individual cases and by way of exception, provided for the possibility of work in VU for scientists and lecturers of over 65 years of age.

However, as mentioned before, the Statute, inter alia, the impugned provision of Paragraph 9 of Article 15 of the Statute, does not set out the criteria based on which the Senate approves the conclusion of such fixed-term employment contracts with lecturers and researchers (in either science or arts) of over 65 years of age. Thus, the impugned provision of Paragraph 9 of Article 15 of the Statute creates the preconditions for the Senate, at its discretion, i.e. in the absence of any criteria known in advance, to approve or not to approve the conclusion of fixed-term employment contracts with lecturers and researchers (in either science or arts) of over 65 years of age.

In view of this, the legal regulation laid down in the impugned provision of Paragraph 9 of Article 15 of the Statute should, from the said aspect, be regarded as creating the preconditions for the unequal treatment of lecturers and researchers (in either science or arts) of over 65 years of age, since the further duration of the employment relationship of these persons is determined by the discretion of the Senate alone, not the criteria that are laid down in the Statute and are equally applied to everyone and are known in advance.

Therefore, it should be held that such a legal regulation disregards the requirement, arising from, inter alia, Article 29 and the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution, that uniform conditions for professional activity be established with respect to persons exercising their constitutional right to freely choose a job or business; in addition, such a legal regulation disregards the imperatives of legal certainty and legal clarity, which arise from the constitutional principle of a state under the rule of law.

22.4. In the light of the foregoing arguments, the conclusion should be drawn that the provision “Lecturers and researchers (in either science or arts) of over 65 years of age are entitled to work at the University if the Senate approves that a fixed-term employment contract for a period not exceeding three years is concluded. Upon a decision of the Senate, such a contract may be renewed once” of Paragraph 9 of Article 15 of the Statute, insofar as this provision creates the preconditions for the Senate, at its discretion, in the absence of criteria known in advance, to decide whether to approve the conclusion of fixed-term employment contracts with lecturers and researchers (in either science or arts) of over 65 years of age, is in conflict with Article 29 and the provision “Everyone may freely choose a job or business” of Paragraph 1 of Article 48 of the Constitution, as well as with the constitutional principle of a state under the rule of law.

23. In this context, it should be noted that, as mentioned before, the freedom of everyone to choose a job or business, consolidated in Paragraph 1 of Article 48 of the Constitution, also includes the right of an individual to freely decide whether to engage in science and research, as well as that this right may be limited only by means of a law. Therefore, the Statute, approved by means of a law, should establish the general criteria (such as the need to ensure the conducting of certain study programmes and the continuity of research) based on which the Senate would decide whether to approve the conclusion of fixed-term employment contracts with lecturers and researchers (in either science or arts) of over 65 years of age. In view, inter alia, of the right of higher education schools, which is implied by the autonomy of these schools, guaranteed by Paragraph 3 of Article 40 of the Constitution, to pursue such policy regarding the employment of scientists and lecturers according to which, in the light of the established traditions of the self-governance of the higher education school and the academic community, the quality of higher education is linked to the need for the dynamism of scientific and pedagogical activities and for the change of the generations of scientists and lecturers, the general criteria set out in the Statute may be specified in the legal acts adopted by the Senate – the collegial governing body of VU, which represents the academic community of VU and implements its self-governance.

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

ruling:

To recognise that the provision “Lecturers and researchers (in either science or arts) of over 65 years of age are entitled to work at the University if the Senate approves that a fixed-term employment contract for a period not exceeding three years is concluded. Upon a decision of the Senate, such a contract may be renewed once” of Paragraph 9 of Article 15 of the Statute of Vilnius University, approved by the Republic of Lithuania’s Law on the Approval of the Statute of Vilnius University (wording of 6 May 2014; Register of Legal Acts, 20-05-2014, No 5522), insofar as this provision creates the preconditions for the Senate, at its discretion, in the absence of criteria known in advance, to approve the conclusion of fixed-term employment contracts with lecturers and researchers (in either science or arts) of over 65 years of age, is in conflict with Article 29 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, 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
                                                                     Giedrė Lastauskienė
                                                                     Algis Norkūnas
                                                                     Daiva Petrylaitė
                                                                     Janina Stripeikienė
                                                                     Dainius Žalimas