Limiting in time Employment Contracts of Directors of Public Education Institutions – constitutional

On 11 May 2015, the Constitutional Court of Moldova ruled on the constitutionality of Articles 153 of the Education Code (Complaint  no. 7a/2015).  

Circumstances of the case

The case originated in the complaint lodged with the Constitutional Court on 4 March 2015, by a group of MPs from the parliamentary faction of the Socialist Party of the Republic of Moldova.

Article 153 of the Education Code provides for a de jure termination of individual employment contracts of the Directors of public education institutions – except for those of higher education – who worked for more than five years since their appointment.  The challenged article provides for these contracts to be ceased on the day of expiry of 4 months from the entry into force of this Code (23 March 2015).

The authors claimed that, considering this article provides for the termination of contracts concluded for an indefinite period of time prior to the entry into force of the law, this not being applicable in respect of all of Directors, but only in respect of Directors who held this position for more than five years, the challenged provisions thus violate, essentially, the right to work, the right to property, and establish discriminatory treatment, which is contrary to Articles 16, 43 and 46 of the Constitution.

The Constitutional Court ruled on the complaint in the following composition:

Mr Alexandru TĂNASE, President,

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mr Victor POPA, judges

Conclusions of the Court

Hearing the reasoning of the parties and examining the case-files, the Court held that the freedom to work, guaranteed by Article 43 of the Constitution, is not absolute. Thus, the State may condition employment by setting certain requirements and may regulate situations on termination of employment.

Stemming from the importance of this area for the development of society, the Court held that the margin of appreciation of the State in regulating the proper carrying out of the training process is higher than in other areas and can be achieved through various instruments. In this context, the right of the State to intervene in work relations of Directors of public educational institutions is justified by the specific nature of this area of activity, education representing an area of public interest.

The Court held that, in principle, the time limitation of the term in office of a person does not violate constitutional provisions.

The Court held that Article 50.5 of the Education Code provides that the positions of Director and Deputy Director shall be filled following a contest, based on professional and managerial competence criteria. Paragraph 6 of the same Article provides that Directors and Deputy Directors of a public general educational institution shall be appointed for a period of 5 years and on the expiry of this term the individual employment contract shall cease de jure.

Thus, the challenged provisions of Article 153 of the Education Code are transitional rules, having a limited application in time, meant to clarify the situation of Directors in office at the date of entry into force of new legal provisions and ensure their implementation.

A contrary reasoning would hinder the State from replacing Directors of public education institutions until they achieve the retirement age, which is not only absurd, but would baffle any effort of the State to adapt the education system to the needs of the time and to carry out reforms in due time.

Additionally, the Court held that the termination of employment contracts of Directors of public educational institutions does not exclude their right to participate in a new contest for this office, with no discrimination.

As with regards to the right to property, the Court held that, in the field of labour, it protects only the remuneration rights for the period actually worked, and not the expectation of receiving a salary in the future or the expectation that the legislation will not be amended.

In light of the above considerations, the Court held that the challenged provisions do not violate the right to work or the right to property, and do not establish a discriminatory treatment, being in accordance with constitutional provisions of Moldova.

Judgment of the Court

Stemming from the above reasoning, the Constitutional Court:

-   rejected as ungrounded the complaint;

-   declared constitutional Article 153 of the Education Code.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Gazette of the Republic of Moldova.