Remuneration of elected local officeholders who serve on a full-time basis but also engage in other remunerated activities
Prohibition of arbitrariness
RULING Nº 96/05
23 of February of 2005
The principle of equality (Article 13 of the Constitution) is based on the equal social dignity of all citizens. Its three components are as follows:
a. the prohibition of arbitrariness;
b. the prohibition of discrimination;
c. the duty to differentiate as a means of offsetting inequality of opportunity.
According to constitutional case-law, the principle of equality is infringed where the law deals differently with situations that are basically the same, although differences in treatment are allowed if there are genuine grounds for them. In addition, the prohibition of arbitrariness calls for differential treatment proportionate to the circumstances in respect of situations in which the facts are different.
In practice, it is the principle of equality that prohibits equal treatment of different situations. This principle is particularly important because it implies that equal treatment of genuinely different situations is constitutionally unacceptable. However, it needs to be determined whether the equal remuneration of a local elected representative working for the municipal authority full time but not exclusively (combining municipal duties with other paid work) and of a local elected representative working for the municipal authority part time infringes the principle of equality. For this purpose, reference has to be made to the aspect of the principle of equality which relies on there being genuine substantive equality between the two situations, i.e. that of a local elected representative working full time but not exclusively for the municipal authority (under the aforementioned conditions) and that of a part-time local elected representative. If the Court rules that there is equality in terms of status between the two, it will then have to relate the situation to the fact that, as far as pay is concerned, this equality in terms of status is not matched by an equitable situation in terms of other aspects, including the different working hours under the full- and part-time arrangements. On the other hand, if the Court finds that the conditions governing the two arrangements - which concern not just pay but other quite different aspects - are not structurally identical, then it will have to declare the rule in question constitutional.
The criteria set by Article 59.1.a of the Constitution are important when the principle of equality is put into practice with regard to payment for work. It is through these that the principle of "equal pay for equal work" is established. Pay must take account of the "quantity, nature and quality" of work and must hence be commensurate with the quantity of work (i.e. its length and intensity), the nature of the activity (i.e. how difficult, arduous or dangerous it is) and the quality of the work done (i.e. whether it meets requirements in terms of knowledge, skill and proficiency).
The complexity of the status of local elected representatives is such that it is impossible to make a direct "linear comparison" focusing only on the rules applying to the performance of their duties and their pay. Instead, the status of local elected representatives working full time and part time has to be looked at as a whole in order to determine whether the two are treated in an equal manner, in such a way as to infringe the principle of equality.
The provision in question governs the system of payment for local elected representatives performing their duties full time but not devoting themselves entirely to their municipal duties. According to this provision, these local representatives receive 50% of the basic pay awarded to local elected representatives working full time and opting to perform solely their municipal duties (or engaging only in unpaid other activities). The Constitutional Court was asked to give its opinion on whether the rules on pay applying to municipal councillors working full time and opting to combine their municipal duties with a profession or private activity were compatible with the principle of equal pay. The ground for the argument that these rules were unconstitutional was that the law awarded the same pay to representatives performing their municipal duties full time and those working for the municipality only part time: this equal treatment of (and equal pay for) differing situations was alleged to infringe the principle of equality.
However, in view of the fact that, in the present case, it was compensation for the performance of public duties and, what was more, for the exercise of elected public office that was involved, not pay for work, it was questionable whether Article 59.1.a of the Constitution could legitimately be regarded as the main substantive criterion for the assessment of the case. In view of the fact that the principle of "equal pay for equal work" was an extension of the principle of equality enshrined in Article 13 of the Constitution, and given that it was debatable whether the rules of the Constitution concerning workers could be "automatically" applied to persons holding elected public office, it was considered that the standard by which the Court should be deciding on the constitutionality of the law in question was, on the face of it, Article 13.1 of the Constitution alone.
From at least one viewpoint, relying on the principle of equal pay for equal work could prove problematic as the "work" required of a part-time municipal councillor did not seem to be "equal", at least in terms of quantity, to that required of a full-time councillor. On the other hand, what was "equal" was their salary, as was the quantity (or number of hours) of "work" required of a municipal councillor performing his or her duties exclusively for the municipality and that required of a municipal councillor who combined his or her municipal duties with other activities under a full-time working arrangement. However, it was not clear that the principle of equal pay for equal work provided any statutory means of justifying the full application of the converse rule (i.e. different pay for different work), at least in an area such as elected public office, in which performance of duties could not be assessed under the same conditions as those obtaining in working life in general, particularly when it came to defining the concept of "work", in which the time factor or, to be more specific, the number of working hours came to the fore. Besides, even in the specific field of "ordinary" work, it was not enough to consider the quantity of work done on its own: it was also necessary to take account of the quality and the nature of the work carried out. In view of the fact that what was at issue was the performance of political duties in the broadest sense, it was therefore uncertain whether the constitutional parameters applying to workers' rights could be applied without appropriate adjustments because, in the atypical area of the performance of municipal duties, the "work" element was complex and somewhat nebulous. As a result it was inadvisable to rely on the constitutional rule in Article 59.1.a of the Constitution.
In the light of Article 13.1 of the Constitution, it was necessary, therefore, to determine whether local councillors who performed their municipal duties full time but combined them with other paid activities - and hence received only 50% of the pay to which they would normally be entitled - suffered discrimination in comparison with municipal councillors who received exactly the same pay but worked part time.
In several respects, the rules on local elected representatives revealed differences in the legal treatment of the actual situations of a local councillor performing his or her municipal duties full time (even where he or she did not do so exclusively but combined these duties with other paid activities) and of a part-time local councillor - and that, apart from the relationship between working hours and pay. When these rules were looked at as a whole, there were other factors which allowed a distinction to be made between the legal situation of a local councillor working for the municipal authority full time (although not working exclusively for it, as described above) and one working for it part time.
In short, it could not legitimately be maintained that the situation of municipal councillors working for the municipal council full time but not exclusively differed in only one respect from that of part-time councillors, i.e. the fact that the former had to work twice the number of hours worked by the latter, as the law itself identified various other differing aspects in the rules governing these arrangements. There was reason to consider that the difference in the status of these municipal councillors was not confined to their pay, but was reflected in a very broad and complex series of rights. Accordingly, it was argued that the relative positions of municipal councillors covered by these differing working arrangements could not be assessed solely in the light of their pay. It was for precisely this reason that it was wrong to compare the status of municipal councillors working for the municipality full time with that of councillors working only part time solely with reference to the pay they received.
Consequently, regardless of the issue of the justification for the equal pay in question, the situation of municipal councillors performing their duties full time and combining these with other activities could not be compared with that of municipal councillors working part time in the light of pay alone, with the sole intention of concluding that the fact that they received equal pay infringed the principle of equality. Accordingly, the argument that the rules in question were substantively unconstitutional had to be rejected.