Formation of a legal employment relationship in the Public Administration without the institution of a fair applicant recruitment and selection procedure
Civil and public services
System of work
Right of access to the civil and public services
Freedom and equality of access
RULING Nº 406/03
19 of September of 2003
Article 47.2 of the Constitution, which enshrines the right to equal access to the civil service, implies a right to a fair selection and recruitment procedure for the civil service. This generally takes the form of a public competition which, whilst upholding the principles of equal, free access to the civil service, gives general priority to criteria linked to candidates' merit and ability.
Given that the aim of the public competition system is to facilitate the exercise of the right to equal access, civil servants may only be recruited by other means for certain practical reasons - these may be specific to the post that needs to be filled (such as the selection of senior managers, which may be possible without a public competition).
Even in cases where employees may sign an employment contract, the civil service cannot consider itself as a private employer and its staff cannot be treated as normal workers. If the use of individual employment contracts offered total freedom of choice and a civil service recruitment system governed by general employment law, with no procedural requirement of respect for the principles of equality and impartiality, especially in cases where the individual employment contract system was linked to a public body, it would infringe the Constitution.
The constitutional requirement of equal, free access to the civil service, generally by means of a public competition, has two aspects. Firstly, from a subjective point of view, it involves the right of all citizens to access to the civil service; secondly, from an objective point of view, it is an institutional guarantee designed to ensure that civil servants are impartial, in other words that "the workers of public administrative authorities and other personnel of the State and other public bodies exclusively serve the public interest" (Article 269.1 of the Constitution). In fact, one of the features of selection and recruitment procedures that guarantee equal, free access to the civil service is that they prevent such selection and recruitment being based on criteria that would facilitate the recruitment of citizens belonging exclusively or almost entirely to a certain group or with particular leanings. If this were the case, there would be a risk of the civil service becoming dependent on these people and the need to exercise functions "in such a way as to respect the principles of equality, proportionality, fairness, impartiality and good faith" (Article 266.2 of the Constitution) would be called into question.
The Principal State Prosecutor of the Republic asked for two provisions in the statutes of the National Civil Aviation Institute (NCAI) to be declared unconstitutional with general binding force, on the grounds that they were organically and materially unconstitutional.
With regard to organic unconstitutionality, it was alleged that Article 165.1.t of the Constitution had been violated. Under this article, except where legislative power is delegated to the government, the parliament has exclusive legislative powers with regard to the bases for the rules and jurisdiction of the civil service. It was also claimed that the general law regulating the means of constituting, amending and terminating the legal employment relationship for civil servants - a general law which also applied to public institutions - made no provision for indefinite-term employment contracts. However, the Court, confirming previous decisions, held that these rules were, to this effect, covered by legislation drawn up on the basis of a legislative delegation set out in the State Budget Act and were not therefore organically unconstitutional.
With regard to material unconstitutionality, the NCAI is essentially a public-law institution which exercises public authority through its organs and employees. In short, its employees fulfil a public function in the material sense of the term. Consequently, the responsibilities and nature of the NCAI, as well as the functions entrusted to its organs and employees, fully justify the application of the guarantees of freedom and equality of access in the recruitment and selection of its personnel, as enshrined in Article 47.2 of the Constitution, even if staff are offered individual employment contracts.
The Court therefore concluded that the rule in question - insofar as it empowers the management board of the NCAI to recruit and appoint employees subject to the legal regime of individual employment contracts, without making provision for any recruitment and selection procedure guaranteeing free, equal access - violates Article 47.2 of the Constitution. However, it limited the effects of its decision in order to protect the validity of the employment contracts that had already been signed.