University autonomy and scientific freedom in the sphere of assessment for teaching appointments and promotion in the academic career structure
Assessment of absolute and relative merit
RULING No. 491/2008
Case no. 1091/07
Rapporteur: Justice Benjamim Rodrigues
Ruling of the 2nd Section of the Constitutional Court:
A – Report
1 – Under the terms of Article 70(1)b of the current version of Law no. 28/82 of 15 November 1982 (the LTC), the VICE-PRINCIPAL OF Universidade Técnica de Lisboa (Lisbon Technical University, UTL) is appealing to the Constitutional Court against a ruling handed down by the Central Administrative Court – South on 4 October 2007, in which the latter denied a jurisdictional appeal against the sentence imposed by the then Administrative Court of the Lisbon Judicial Circuit, which upheld a contested appeal brought by the now respondent A. and annulled an order which the appellant had issued on 15.10.1997, in which he denied the respondent’s request for the creation of a Full Professorship under the terms of Article 18 of Executive Law no. 323/89 of 26 September 1989, as amended by Executive Law no. 34/93 of 13 February 1993.
2 – In his argumentation before the Central Administrative Court – South the appellant refuted the sentence handed down by the court of first instance on the basis of the following considerations, which are pertinent to an understanding of the case:
III) – The learned sentence against which the present appeal is being brought also breached Article 25 of the Law governing Process in the Administrative Courts (LPTA), and Articles 13 and 168(2) of the Constitution.
VI) – Article 18 of Executive Law no. 323/89, as amended by Executive Law no. 34/93, which sought to extend the rules arising from Article 18 to university teachers, is unconstitutional because it is lacking in legislative authorisation, given that the authorisation set out in Article 5(1)d of Law no. 2/92 does not comply with the rules laid down by Article 168(2) of the Constitution.
On the other hand,
VII) – Appointment to a category above that which the appointee holds at the time when he is appointed to a senior administrative position is dependent on compliance with the special requirements laid down by the respective Statute governing the Staff of Special Bodies.
VIII) – Inasmuch as university teachers are a “special body”, once the Appellant’s service commission ends under the terms of Article 18 of Executive Law no. 323/89, his appointment depends on fulfilment at that time of the special requirements.
IX) – According to the Statute governing the University Teaching Career Structure (ECDU), in order to be appointed to the category of Full Professor, Associate Professors must not only have been Associate Professors for a given period of time, but must also hold the title of ‘Aggregate Professor’, must be approved in a competitive document-based selection process, their curriculum must be recognised as possessing scientific and pedagogical merit compatible with the category of Full Professor, and their ranking in the results of the competitive selection process must be high enough for them to secure a place on the list of positions for which the competitive selection process was held.
XI) – This means that besides having completed the minimum period of service and holding the title of ‘Aggregate Professor’, teachers who wanted to be appointed Full Professor under the terms of Article 18 of Executive Law no. 323/89, on the grounds that they had occupied senior administrative positions, had, on the date on which they were so appointed, to submit their curriculum for consideration by a jury, which would then pronounce itself as to whether the scientific and pedagogical merit thereof was compatible with the category to which the candidate wished to gain access.
XII) – The process of considering a curriculum’s scientific and pedagogical merit takes place at the point in time when appointment to the category is confirmed by a jury that is appointed for the purpose.
XIII) – In the event that the scientific and pedagogical merit of a teacher’s curriculum has been considered in one or more earlier competitive selection processes in which he was a candidate, such (a) process(es) does(do) not count for any other competitive selection process and cannot be taken into account for the purposes of Article 18(2)a and (3) of Executive Law no. 323/89.
XIV) – In the case of other teachers, the process of considering the scientific and pedagogical merit of their curricula does not count in future competitive selection processes in which they are candidates, inasmuch as approval of a curriculum is only valid within the scope of the competitive selection process in which it occurs.
XV) – The same should be true of university teachers who have been appointed to senior administrative positions.
XVI) – The interpretation that teachers who have been appointed to leadership positions can take advantage of the fact that their scientific and pedagogical merit was approved during an earlier competitive selection process – when the other teachers concerned cannot have secured the same approval – breaches the constitutional principle of equality.
XVII) – There are no grounds for the approval that is given in any particular competitive selection process to teachers who are appointed to senior administrative positions outside the University to be valid outside that competitive selection process and ad infinitum (those who are appointed to senior administrative positions within the University, even if they are more relevant than those outside, do not enjoy any benefit), whereas in the case of other teachers such an approval only counts in the competitive selection process in which it occurs.”
In the same argumentation, the appellant said in relation to the alleged breach of Article 168(2) of the Constitution, “that the university autonomy enshrined by Article 76 of the Constitution, which is subject to partially exclusive responsibility to legislate, is also at stake”.
3 – The part of the decision against which the present appeal is being brought that is circumstantially relevant to an understanding of the question of constitutionality reads as follows:
“6. The conclusions of the argumentation say that the following issues should be addressed in the appeal:
a) The inadmissibility of a contested appeal against the order that forms the object of this case (conclusions IV and V).
b) The breach of the provisions of Article 18(2)a and (3) of Executive Law no. 323/89 of 29 June 1989, inasmuch as the respondent is said not to have fulfilled the requirements laid down thereby (conclusions VII to XV).
c) The unconstitutionality of Article 18 of Executive Law no. 323/89 of 26 September 1989, due to a lack of the legislative authorisation needed to extend the rules derived from this Article to university teachers (conclusion VI).
d) The existence of an unconstitutionality due to a breach of the principle of equality, if teachers who have been appointed to senior administrative positions can take advantage of the fact that their scientific and pedagogical merit was approved in an earlier competitive selection process, when other teachers cannot have obtained such an approval (conclusions XVI and XVII).
Let us first begin by considering the question which the appellant raised in relation to the inadmissibility of the appeal.
5.1. The court of first instance dealt with this question in the following way:
“The authority against which the appeal was brought argues that the act that was challenged does not define the appellant’s legal situation, and merely prepares both the procedure whereby the appellant might be appointed and the official act of appointment made by the jury itself.
The appellant said that the official act against which the appeal was brought denied his wish to be appointed without a competitive selection process, thereby defined his legal situation, and is thus subject to appeal.
As the Public Prosecutor’s Office points out on sheet 37 of the case file, in order to resolve this issue it is necessary to determine the purpose of the declaration included in the appellant’s application. The PPO notes that this application "makes an underlying assumption: that at the point in time at which the request was formulated, all the prior requirements on which the appointment to the position of Full Professor at UTL depends were met".
In the light of this premise, the appellant is thus seeking his appointment to the position without the need to submit to the jury’s assessment of his “absolute merit”.
Now, as the Public Prosecutor’s Office argues, in appointing the jury for the purpose of weighing up the appellant’s “absolute merit”, the order against which the appeal was brought “is logically underlain by the assumption on the part of the authority against whose decision the appeal was brought that the requirement in question was not fulfilled”; that assumption is therefore damaging to the appellant’s legal position and as such is subject to appeal under the terms of Article 268(5) of the Constitution of the Republic.
In the light of the above, I reject the argument of the authority against which the appeal was brought, that the latter should not be heard because the act that was challenged is not subject to appeal”.
This Court agrees with the above decision, and therefore rules against conclusions IV and V).
5.2. The appellant only raised the questions of unconstitutionality referred to above in the appeal.
It is well known that parties cannot raise new issues in an appeal, because appeals only seek to reconsider the decisions of lower courts and not to decide on new ones.
However, allegations of unconstitutionality have been admitted at appeal, partly because this is an issue which the courts can raise on their own initiative (in this respect see, among others, the Supreme Administrative Court [2nd Section] Ruling dated 13.12.2000 – Appeal no. 24.319, and Constitutional Court Ruling no. 637/99 dated 23.11.1999 – Case no. 206/99, in Series II of the Diário da República of 22.03.2000, p. 5248 et seq.; and Constitutional Court Rulings nos. 173/88 and 41/92).
As such, let us now look at the abovementioned allegations of unconstitutionality.
5.2.1. The appellant believes that the legislative authorisation granted by Article 5(1)d of Law no. 2/92 of 9 May 1992 did not permit the extension of the right enshrined by the aforementioned Article 18 to university teachers.
Indeed, the earlier text of Article 18 did not include special bodies.
The respondent (in the arguments set out on the reverse of sheet 92) believes that both before and after its amendment by Executive Law no. 34/93 of 13 February 1993, the fact that the heading of Article 18 is the ‘right to career’ means that the object of the legislative authorisation was that right, and that at the end of the day it distinguishes between staff from the general career structure and those from the special civil service career structures. Moreover, the simple clarification of this matter cannot constitute a breach of the purpose and scope of the legislative authorisation in question.
What does the law say?
There is no doubt that the legislative authorisation does not mention university teachers. However, inasmuch as the aforesaid Article 18 concerns the right to a career in the civil service, it does not seem to us that the distinction or clarification it makes in relation to the general career structure and the special bodies goes against the purpose, and exceeds the scope, of the legislative authorisation.
The fact is that both of them form part of the civil service – something which the authorisation must have borne in mind.
At the same time, inasmuch as university teachers are included among the special bodies of the civil service, the legal terminology also came to cover them, failing which they would have been discriminated against compared to other senior administrative staff belonging to bodies that were special but do not include teachers.
We therefore conclude that the argument that Article 18 is unconstitutional because it breaches the terms of the legislative authorisation under which the said rule was published is not valid, wherefore we do not uphold conclusion VI.
5.2.2. Did the decision against which the appeal has been brought breach the constitutional principle of equality in its interpretation of Article 18?
Let us see.
The appellant argues that the court’s interpretation of the aforesaid Article 18(2)a breaches the principle of equality by saying that merit which has previously been recognised in a competitive selection process fulfils the legal requirement, when the fact is that teachers who are not appointed to senior administrative positions need to have their merit recognised each time they take part in a competitive selection process.
The appellant believes that this would represent a benefit to which university teachers who had not occupied senior administrative positions would not have access.
But could it be that the legislative authorities actually wanted to create a benefit for senior civil service administrators in this case?
It is clear that the abovementioned rule wanted to reward in some way senior administrators who had remained in that position for a given period of time, and therefore laid down that “Once they have finished their service commission, and even if they then receive a new appointment, staff who are appointed to senior administrative positions shall be entitled:
a) To be appointed to a category above that to which they belonged when they were appointed senior administrator….”
And paragraph (6) of the same Article also provided for the creation within the staff rosters of the departments or bodies from which the persons in question originally came, of the positions needed to implement the provisions of the aforementioned subparagraph (2)a, which would then be eliminated again once they fell vacant.
This thus means that the aforementioned rule created a special right for senior civil service administrators.
Now there is no reason why this system should not apply to teachers, who are also civil servants, albeit a special body.
So teachers who had been senior administrators were at an advantage compared to those who had not, inasmuch as they benefited from the provisions of Article 18.
So the situations described by the appellant are different.
And, as we know, the principle of equality is only breached when identical situations are treated differently. In the case at hand the unequal treatment of different situations does not represent a breach of the constitutional principle of equality.
This is clearly what results from a passage in Constitutional Court Ruling no. 528/2006, dated 27 September 2006 – Case no. 227/06, 3rd Section, which reads as follows:
“The principle of equality is unanimously recognised to be a key structural principle of the Democratic State Based on the Rule of Law. In its briefest formulation, it requires that situations which are de facto essentially the same be treated in the same way, and that situations which are de facto not the same be treated in the different ways (for all these matters, see – among many which say similar things – Rulings nos. 563/96, 319/90, 232/03, and 96/2005, all of which are available for consultation at the Court’s website http://www.tribunalconstitucional.pt/tc/acordaos/; each of them, at a particular moment in time, summarises the abundant constitutional jurisprudence on this subject). Seen correctly, the principle of equality does not prohibit all distinctions, but only those for which there are no rational grounds. As Ruling no. 187/01 (also available on the website) says: “as a principle that prohibits arbitrariness when distinctions are made, the principle of equality does thus tolerate the provision for differentiations in the way in which the law treats situations which, from one or more points of view, appear to be identical, on condition that at the same time those differentiations are supported by a reasonable justification or reasonable grounds, when seen from a point of view that can be considered relevant”. In short and in essence, that which the principle set out in Article 13 of the Constitution requires above all is a prohibition of arbitrariness and of discrimination without an acceptable reason. What is important – as Vieira de Andrade (Os Direitos Fundamentais na Constituição Portuguesa de 1976, 2nd edition, 2001, p. 272) suggestively implies – and has been repeated by the Constitutional Court itself on innumerable occasions – “(…) is not to discriminate for discrimination’s sake”.
In the light of the above, the Court does not uphold conclusions XVI and XVII.”
4 – In his request to appeal on the grounds of unconstitutionality, the appellant said that he was seeking the consideration of the constitutionality “of Article 18 of Executive Law no. 323/89 of 26 September 1989, as amended by Executive Law no. 34/93 of 13 February 1993, by Executive Law no. 239/94 of 22 September 1994, and by Law no. 13/97 of 23 May 1997, when interpreted in such a way as to apply its rules to university teachers at public universities, inasmuch as he believes that this is unconstitutional, both because it lacks legislative authorisation, and because it breaches the constitutional principles of justice, equality, and the autonomy of universities”.
5 – The appellant concluded his arguments before the Constitutional Court as follows:
“I — The learned ruling which the Central Administrative Court – South handed down on 4 October 2007 and which is now the object of appeal, did not interpret the Constitution and the applicable laws correctly.
II — Paragraphs (2)a and (3) of Article 18 of Executive Law no. 323/89 of 26 September 1989, as amended by Executive Law no. 34/93 of 13 February 1993, by Executive Law no. 239/94 of 22 September 1994, and by Law no. 13/97 of 23 May 1997, are unconstitutional due to a lack of legislative authorisation.
III — In reality, Article 18 was passed under the terms of the legislative authorisation set out in Article 5(1)d of Law no. 2/92 of 9 March 1992 – the legislation that approved the 1992 State Budget – but that subparagraph d) does not fulfil the requirements of Article 168(2) of the text of the Constitution that was in force on the date on which the legislation that is at stake here was published, according to which laws that grant authorisation to legislate must define “the object, purpose, extent and duration of such authorisation”.
IV — The legislative authorisation set out in Article 5(1)d of Law no. 2/92 of 9 March 1992 limits itself to saying that the Government was authorised “... to change the statute governing senior administrators of the departments and bodies belonging to the central, regional and local administrations … with a view to more clearly defining the right to a career, together with the right to the compensation …”, which means that it does not meet the constitutional requirements listed above, because it does not contain a clear description that could serve as a parameter for, and measure of, the acts that were delegated.
V — The expression “more clearly defining the right to a career” is vague and does not possess any content that would delimit the legislative authorisation, as required by the Constitution.
VI — At the same time, even if one were to believe that the aforesaid legislative authorisation does fulfil the requirements of Article 168(2) of the Constitution – a hypothesis with which the appellant does not agree – what is beyond doubt is that it does not lead to an authorisation for the Government to legislate on the university teaching career structure – a matter in relation to which Article 76 of the Constitution means that the responsibility to legislate is reserved because it falls within the framework of the autonomy accorded to universities.
VII — This thus also means that the aforementioned Article 18 of Executive Law no. 323/89 of 26 September 1989, as amended by Executive Law no. 34/93 of 13 February 1993 and as interpreted by the ruling against which the present appeal has been brought, such that the system of extraordinary career progress provided for thereby does apply to university teachers who have occupied leadership positions outside university, is unconstitutional.
VIII — But even if one were to believe – like the ruling of the Central Administrative Court – South which is now the object of appeal – that when Article 18 of Executive Law no. 323/89 of 26 September 1989 grants staff who are appointed to senior administrative positions the right, once their service commission comes to an end, to be appointed to a category above that which they occupied on the date on which they were appointed to the position of senior administrator, it applies to university teachers, it also breaches the constitutional principles of equality, justice, and proportionality, which are inherent in a democratic state based on the rule of law and are laid down by Articles 13 and 2 of the Constitution.
IX — This system also breaches the constitutional principle of the autonomy of universities as enshrined by Article 76 of the Constitution, inasmuch as it embodies the external imposition on a university of an increase in its staff, along with the corresponding financial costs – something that also means making it law required an unequivocal legislative authorisation which, as has been shown, does not exist.
X — There are thus no grounds for the grant of this “right”, which is an unjustified privilege, to university teachers who are appointed to senior administrative functions outside the university, when those who occupy senior administrative positions within it – positions that are even more important than those outside, such as Principal, Vice-Principal, President of a Faculty’s Board of Governors, Director of a Faculty, and other equivalent positions – do not enjoy any perk of a similar nature.
XI — Approval of such a situation is an intromission into the autonomy of universities, firstly inasmuch as it permits promotions within the university career structure “behind the back” of the university assessment criteria, under which possession of absolute merit is not enough to secure promotion – under the rules set out by the Statute governing the University Teaching Career structure (ECDU) that was approved by Executive Law no. 448/79 of 13 November 1979 (specifically Articles 37 to 52), as amended, by ratification, by Law no. 19/80 of 16 July 1980, relative merit is also necessary; and secondly, because it increases financial costs.
As such, and with any learned additions which the Court sees fit to make, the appellant hereby requests that this appeal be upheld, and consequently that:
(i) the Court declare unconstitutional Article 18 of Executive Law no. 323/89 of 26 September 1989, as amended by Executive Law no. 34/93 of 13 February 1993 and as interpreted by the Ruling against which the present appeal has been brought, in such a way that the rules therein apply to the special body of university teachers;
(ii) the ruling which the Central Administrative Court – South handed down on 4 October 2007 be revoked, whereupon a new ruling should be issued in the light of the declaration of unconstitutionality referred to by paragraph (i) above, to hold that Article 18 of Executive Law no. 323/89 of 26 September 1989, as amended by Executive Law no. 34/93 of 13 February 1993 does not apply to the university teaching career structure, which should be treated as has been customary in the past.
6 – The respondent presented counter-arguments in defence of the earlier judgement.
To this end he argues: that the rule whose constitutionality has been challenged does not exceed the purpose of the legislative authorisation granted by Article 5(1)d of Law no. 2/92 of 9 March 1992, as was indeed decided in relation to special career structures in Constitutional Court Rulings nos. 65/00 and 119/02; that the question of the breach of the constitutional principle of the autonomy of universities was not adequately raised in the arguments presented in the appeal to the Central Administrative Court – South, but was only mentioned in a “marginal fashion” and “en passant”, without being reflected in the conclusions at the end of the argumentation; but that in any case this question could not be raised, given that the provision applies to all special bodies and the responsibility and power to legislate on matters concerning the autonomy of universities are expressly reserved; and finally, that the situations of higher education teachers who perform functions under the terms of Executive Law no. 323/89 are objectively not the same as the functions performed in the teaching career structure, and so call for different treatment.
B – Grounds for Decision
7 – On the delimitation of the object of the appeal
In his request to be allowed to appeal to the Constitutional Court, the appellant says that he is seeking the consideration of the constitutionality of “Article 18 of Executive Law no. 323/89 of 26 September 1989, as amended by Executive Law no. 34/93 of 13 February 1993, by Executive Law no. 239/94 of 22 September 1994, and by Law no. 13/97 of 23 May 1997, when interpreted in such a way as to apply its rules to university teachers at public universities, inasmuch as he believes that this is unconstitutional, both because it lacks legislative authorisation, and because it breaches the constitutional principles of justice, equality, and the autonomy of universities”.
We can see that the decision against which he is appealing only applied Article 18(2)a and (3) of Executive Law no. 323/89, as amended by Executive Law no. 34/93 of 13 January 1993.
Consequently, and inasmuch as infra-constitutional law, as it was applied in this case, is a given for the Constitutional Court, it is possible to overcome this difficulty in relation to the definition of the object of the appeal in the form of a request for a concrete review of the constitutionality of this rule alone, and of the sense in which it was applied.
On the other hand, the respondent questions whether the Constitutional Court can hear the question of the constitutionality of the aforementioned precept in the light of the principle of university autonomy, given that this issue was only raised “en passant” in the arguments which the appellant presented in his appeal and was not included in the conclusions.
However, the Court is of the opinion that the respondent’s objection should not be upheld.
In reality, taken together, the provisions of Articles 51(1) and (5), 75-A(1) and 79-C of the Law governing the Constitutional Court (LTC) mean that the latter is only bound by the request made by an appellant, and not by its grounds.
There can be no doubt that the invocation of university autonomy concerns a constitutional parameter laid down by Article 76(2) of the Constitution, which is deemed applicable to a decision on the specific question of the constitutionality of the infra-constitutional-law right identified above, wherefore it possesses the nature of grounds on which to hear the appeal.
8.1 – On the merit of the appeal
Article 18 of Executive Law no. 323/89 of 26 September, as amended by Executive Law no. 34/93 of 13 February 1993 and by Executive Law no. 239/94 of 22 September 1994, reads as follows:
Right to career
1 – The length of service performed in senior administrative positions shall count for all legal purposes – particularly for promotion and progression in the category in which each member of staff is incorporated.
2 – Once they have finished their service commission, and even if they then receive a new appointment, staff who are appointed to senior administrative positions shall be entitled:
a) To be appointed to a category above that to which they belonged when they were appointed senior administrator, which shall be awarded in accordance with the number of years for which they continuously performed those functions, which years shall be grouped in harmony with the promotion modules in the career structure in question, and in a band that shall be determined under the terms of Article 19 of Executive Law no. 353-A/89 of 16 October 1989.
b) To be appointed to their original category, in the event that they are not in a position to benefit from the provisions of the previous subparagraph.
3 – Application of the provisions of subparagraph a) of the previous paragraph to staff who originally came from a special career structure or body shall be dependent on fulfilment of the special access requirements laid down by the respective regulatory laws, as well as on the required academic qualifications.
4 – The time spent in substitution situations shall also count for the purpose of calculating the length of service as laid down by paragraph (2).
5 – The provisions of paragraph (2) shall not prejudice the right of staff who perform senior administrative functions to apply under competitive access selection processes which occur during their service commission, in the event that the respective appointment is determinant for the purposes of subparagraph (2)a.
6 – The positions needed to implement the provisions of subparagraph (2)a shall be created within the staff rosters of the departments or bodies from which the persons in question originally came, and shall then be eliminated again when they fall vacant.
7 – At the request of the interested party, when the category in question is the highest in its career structure, the provisions of the previous subparagraph may be implemented whether or not his service his commission ends.
8 – The changes to staff rosters provided for by paragraph (6) shall be made by Order of the Minister of Finance and the Minister with responsibility for the applicable government department, which shall be published in Series 2 of the Diário da República.
9 – Staff who benefit from the provisions of subparagraph (2)a shall be entitled to the remuneration applicable to their new category and band as of the date on which their service commission ends.
10 – In the event that a service commission ends under the terms of subparagraph 7(1)b, on condition that he has occupied the position uninterruptedly for at least 12 months the senior administrator concerned shall be entitled to compensation in a sum equal to the difference between the remuneration applicable to the senior administrative position that has ended and the remuneration applicable to his category, to be calculated in accordance with the remainder of the time until the commission would otherwise have ended, which sum shall not exceed the annual difference between the two remunerations including holiday and Christmas bonuses.
11 – The right to the compensation provided for by the previous paragraph shall only exist in cases in which the end of the service commission is not immediately followed by a new appointment to a senior administrative position.
12 – Appointment to one or more senior administrative positions during the period to which such compensation refers shall render it obligatory to refund the amount equal to the difference between the number of months for which the compensation has been received and the number of months that actually passed until the new appointment.”
Article 5(1)d of Law no. 2/92 of 9 March 1992 reads as follows:
1 – In pursuit of the improvement and modernisation of the legal rules governing the civil service, the Government is hereby authorised to legislate in such a way as to:
d) Change the statute governing senior administrators of the departments and bodies belonging to the central, regional and local administrations, as laid down by Executive Law no. 323/89 of 26 October 1989, and especially Articles 18 and 19 thereof, with a view to more clearly defining the right to their career, together with the right to the compensation provided for by Article 18(7) and (8) of the same Executive Law.”
8.2 – The first question posed by the appellant is that of the unconstitutionality of Article 18 of Executive Law no. 323/89, in the version set out above, “both because it does not comply with the rules laid down by Article 168(2) of the Constitution, and because under the terms of Article 76 universities are part of the autonomous administration, responsibility for legislation on which is reserved”. According to his arguments, “the legislative authorities limited themselves to saying that they wanted to clarify the right to a career and to compensation”, and said nothing “about the scope of such rights, or about extending these legal rules to special bodies”.
According to the aforesaid Article 168(2) of the Constitution, as it stood when the legislation which is at stake here was passed, “Laws that grant authorisation to legislate shall define the object, purpose, extent and duration of such authorisation”.
The Constitutional Court has already addressed the interpretation of these elements which condition the constitutional validity of, or constitute “minimum requirements” for, laws that grant authorisation to legislate, on several occasions.
Ruling no. 358/92, which is available for consultation at www.tribunalconstitucional.pt, says the following:
“After 1982, the Portuguese constitutional model moved closer to the then model set out in the Fundamental Law of Bonn, Article 80 of which requires that an authorising law “contain, in given terms, the content, object and scope of the authorisation so granted". The definition of these limits must be set out in the authorising law itself, and they cannot be determined by the authorised legislation, inasmuch as it is the delegating legislative authorities who possess the constitutional obligation to lay down the empowering rules, and who must do so in terms that simultaneously provide guidelines to the delegate legislator and enable citizens to recognise and even predict the direction taken by the legislation which is to be issued under the powers so delegated.
As Maunz, Durig and Herzog (Grundgesetz-Kommentar, Munich, 1978, commentary on Article 80, note 30) say, “the legislative authorities must take decisions in accordance with such guidelines as they deem appropriate in relation to the vital areas of the legal system, and must have wanted something and have thought about what they wanted, without being able to transfer the essence of that decision to the body which actually issues the decree”.
In an analysis of this question, António Vitorino (As autorizações legislativas..., op. cit., p. 233) says that "in German legal theory the conjugation of the three aforesaid elements set out in the authorising law, prefigure the delegation’s "normative programme", which must be capable of being uniformly interpreted in such a way that one of its aspects will enable its interpreter (or judge) to determine the essential elements of the other two presuppositions for, or limits on, the delegation. This faculty, which relativises the requirement that the law itself detail all the limits governing the delegation, is one of those which result from the position taken by the Federal Constitutional Court itself, whose jurisprudence has progressively been reducing the extent of the requirements imposed by those elements, in a way which has assumed that each element of, or limit on, the authorisation exists in the light and within the context of the rest of the content of that authorisation. On the other hand, the same German legal theorists have detected the fact that the Federal Constitutional Court’s jurisprudence in the fields of Criminal and Fiscal Law has been imposing stricter requirements on authorisation laws, given the complications that such laws entail in such fields because of the need to defend individuals’ rights and interests.
The situation in the Italian and Spanish legal systems is different. In Articles 76 and 82, respectively, of the Constitution of the Italian Republic and the Spanish Constitution, the extent of the requirement to specify the material limits of a delegatory law is significantly greater than in the German case. Such laws must expressly state the "directing principles and criteria" that guide the exercise of the delegated powers, and there is considerable argument among legal theorists as to the depth to which the authorising law can impose conditions on the exercise of the powers it authorises.
As we have already said, the Constitution of the Portuguese Republic is closer to its German counterpart, and it is possible to say that the requirement for a legislative authorisation to state its purpose – one of the elements of the “minimum required content” of an authorisation law – is only effectively fulfilled when the indications to that end in the authorisation law permit a safe judgement as to the material conformity of the content of the delegated act with that of the delegating law. This means that while the “purpose” does not have to be expressed in abundant directing principles or criteria, it must at least be sufficiently understandable for its content to be able to fulfil the parametric function entrusted to it by the Constitution.
Along the same line of thought, António Vitorino (op. cit., pp. 238 and 239) wrote: “While the purpose of a legislative authorisation is somewhat more than a mere conjugation of the elements ‘object’ (matter or matters which fall within the Assembly of the Republic’s partially exclusive responsibility to legislate and which will be the target of the delegated powers) and ‘extent’ (aspects of the legal rules governing those matters that are included in the object of the authorisation and are to be modified), it is nonetheless not a specified requirement for guiding principles and criteria (...), but rather something more modest or with a more limited scope, which must essentially constitute a backcloth that will guide the Government’s actions in three respects:
- on the one hand, an authorisation’s purpose must enable the parliament to express the goal with which the delegated powers are granted, from the dynamic perspective of the intention of the transformations that are to be made in the existing legal order (this is the purpose from the point of view of the delegator).
- secondly, the purpose must constitute a generic indication of the goals that the Government must pursue in its use of the delegated powers, so that the delegated law thus complies with the orders of the delegating body (this is the purpose from the point of view of the delegate).
- and finally, the purpose of the authorisation must make it possible to publicly let people know the generic perspective of the transformations which are to be made in the legal order as a result of the grant of the authorisation (this is the purpose from the point of view of individuals’ rights, in an area with which the Constitution takes special care – that of the matters which are subject to the Assembly of the Republic’s partially exclusive responsibility to legislate).”
8.3 – The problem of unconstitutionality involved in the lack, invalidity or breach of a law which grants authorisation to legislate only arises in relation to the matters that Article 168 of the Constitution included within the Assembly of the Republic’s partially exclusive responsibility to legislate at that point in time.
The appellant argues that the matter which is regulated by the challenged rule is covered by the university autonomy provided for by Article 76(2) of the Constitution.
It is not important to our decision to ask ourselves how universities should best be qualified within the state’s material administrative function, given that the answer must be taken directly from the Constitution.
Having said this, it would be useful to look briefly at the matter in order to provide a background to the issue before us.
At a time when the 1933 Constitution was still in force, Marcello Caetano saw universities as public institutes of the personalised services type, the entity underlying which “historically formed, developed and acquired a legal persona separately from the state, under Private or Canonical Law, and was only recognised as a public law body corporate at an advanced stage of its existence”, with this “evolution” corresponding “to a state takeover of a certain private initiative in which the corporation retains its legal persona in order to prevent its absorption by the state from overloading the latter and upsetting certain traditional (material and moral) interests” (Manual de Direito Administrativo, Vol. I, 1991 edition, pp. 188 and 189).
At a time when the 1976 Constitution was already in force, Freitas do Amaral qualified universities as public institutes of the public establishment type, in that they possess departments which are open to the public and they provide individual social and cultural services to everyone who needs them (Curso de Direito Administrativo, Vol. I, p. 401).
In the opinion of Marcelo Rebelo de Sousa (A Natureza Jurídica da Universidade no Direito Português, Publicações Europa-América, 1991, p. 44), “Until 1976, legally universities were bodies corporate with purposes that were considered to be derived from the purposes of the state / public administration, and subject to the power of direction (which included the power of supervision), the power of superintendence, and the oversight of merit and legality – in other words, a Public Administration directly dependent on the state. From 1976 until the entry into force of Law no. 108/88, they continued to be legally treated as lacking in interests of their own and subject to the power of direction – albeit a power that was attenuated from Executive Law no. 188/82 of 17 May 1982 onwards, but one that was visible in terms of both the status and management of their teaching staff and disciplinary authority – and also the power of superintendence. I.e. they continued to form part of the public administration that was directly dependent on the state […]”.
Although Marcelo Rebelo de Sousa’s characterisation is a weighty one, there can be no doubt that since the 1982 Revision, Article 76(2) of the 1976 Constitution has enshrined the autonomy of the universities when it states that “As laid down by law … universities shall autonomously draw up their own by-laws and shall enjoy scientific, pedagogical, administrative and financial autonomy”.
And Law no. 108/88 of 24 September 1988 regulated that autonomy, by providing for an oversight of legality (Article 28) “that will indeed be rigorous as regards organisational structures and curricula”, an oversight of merit in financial matters (Articles 11 and 13), and a government assessment of universities in accordance with a law to be passed by the Assembly of the Republic.
In the light of the new legal framework, Marcelo Rebelo de Sousa considered that “public universities can and should accumulate the statuses of associations, public establishments, and the Autonomous Administration”, and that the type of autonomy in question does not preclude the possibility of the existence of an oversight of legality and an oversight of merit (op. cit. p. 48).
Speaking after the 1982 Constitutional Review and the extension of the universities’ financial autonomy by the 1989 Constitutional Review, José Casalta Nabais said on the subject of that autonomy that “the somewhat original power to administer themselves – i.e. to regulate their affairs and resolve their problems in the way they themselves see fit, to which end they dispose of the necessary resources and manage their operations with a great degree of freedom” – is what “reflects the idea of a (true) autonomy for the universities: in reality, the latter will only be autonomous to the extent that they are acknowledged to possess a domain of their own interests (affairs) – a domain in relation to which the state administration restricts itself to exercising a merely coordinating form of oversight; i.e. to the extent to which they constitute something more than mere instruments (albeit equipped with a public-law persona – albeit public institutes) of the state’s indirect administration, as has traditionally been the case here in Portugal” (“Considerações sobre a autonomia financeira das universidades portuguesas”, in Estudos de Homenagem ao Prof. Doutor A. Ferrer Correia, Boletim da Faculdade de Direito, special issue, 1991, pp. 352 and 353).
The same author goes on to argue that “apart from anything else”, this university autonomy “already implies a domain of university autonomy”, which “can take on a sense of constituent autonomy (articles of association) and a current autonomy (the making of current rules)”. The former includes drawing up “their articles of association within the parameters and limits laid down by a framework law”; the latter, drawing up “the regulations needed for the appropriate management of the core of interests that constitute their autonomic campus, with respect for the law and for their own articles of association, and without the need for the prior establishment of specific legislation”. He concludes by saying that “configured as they currently are by the Constitution, Portuguese universities possess a dual nature: they are hubs of the autonomous administration (Selbstverwaltung), and hubs of the state’s indirect administration (Staatverwaltung) – in other words, they are simultaneously institutional corporations and public establishments (or institutes)”.
In the eyes of Luís Pedro Pereira Coutinho (As Faculdades Normativas Universitárias no Quadro do Direito Fundamental à Autonomia Universitária, p. 60 et seq.), in the current Constitution university autonomy takes on the nature of a fundamental right, whose scope is more than institutional, and public universities “should be seen as a “mixtum compositum” of two distinct organisations – an “institutional” or asset-related one, and a corporative one”. He identifies the former aspect with the “creation by the state of a ‘public teaching establishment’, and the latter with the “formation by those occupants of that ‘establishment’ who possess academic freedoms (teachers, researchers, and students) of a public-law corporation (the university in the strict sense of the term) equipped with the legal capacity to manage that public establishment, in pursuit of interests that possess a scientific nature and are pedagogically impartial”.
The autonomy of universities is also a fundamental value that is acknowledged in other countries and is the subject of a variety of foreign legal theory and jurisprudence.
For example, it is enshrined by Article 27(10) of the 1978 Spanish Constitution.
And the Spanish Constitutional Court has already considered it to be a true fundamental right (Sentencias 26/1987 and 106/1990), albeit one that Francisco de Borja López-Jurado Escribano (La autonomía de las Universidades como derecho fundamental: La construción del Tribunal Constitucional, Editorial Civitas, S.A., p. 21 et seq.) calls a “ ‘light’ fundamental right”, inasmuch as the Sentencia itself (Sentencia 26/1987) says that “that which is protected by the institutional guarantee format is not substantially different from that which is protected by means of the fundamental law format as established by law” (also see José Ramón Chaves García, Organización y Gestión de las Universidades Públicas, PPU, Barcelona, 1993, p. 26; Tomás Ramón Fernández, La autonomía universitaria:ámbito y limites, Editorial Civitas, S.A., p. 39 et seq.).
Italy enshrines it in Article 33 of its Constitution (see Domenico Fazio, Alberto Baretoni Arleri, Giovanni D’Addona, Fábio Matarazzo, L’Ordinamento Universitario Italiano, Raccolta sistemática delle Fonti Normative, vol. I).
In Germany the Fundamental Law of Bonn recognises the fundamental right to scientific freedom.
And the right to autonomy is guaranteed by both most of the Constitutions of the Länder and the 1976 Federal Law (among others, see W. Thieme, Deutsches Hochschulrecht, 2nd edition, Cologne, 1986).
According to Georges Vedel (La experiência de la reforma universitária francesa: autonomía y participación, Cuadernos Civitas, Madrid, 1978, pp. 32-33), “since the Third Republic, the French university system has become the only self-managed public service in French history”, and in practice its autonomy has been taken far beyond the provisions of the law governing the attributes of the Ministry of Education.
Article 207 of the 1988 Brazilian Constitution, which constitutionalised earlier ordinary legislation, provides for the autonomy of universities in terms that are not very different from those employed by our own Constitution (among others, see Palhares Moreira Reis, “A autonomia das universidades públicas na Constituição de 1988”, in Revista de Informação legislativa, January to March 1990, p. 99 et seq.; Giuseppi da Costa, “A autonomia universitária e seus limites jurídicos”, in Revista as above, July to September 1990, p. 61 et seq.; Edivaldo M. Boaventura, “A constitucionalização da autonomia universitária”, in Revista as above, October-December 1990, p. 297 et seq.).
Turning back to the Portuguese system, Law no. 62/2007 of 10 September 2007 recently established an overall set of legal rules for higher education institutions – amongst which it numbers universities (Article 5) – and states that “in relation to the state” all public institutions of this kind shall enjoy “pedagogical, scientific, cultural, administrative, financial and disciplinary autonomy and autonomy as regards their articles of association and assets, with such differentiation as is appropriate to their nature” (Article 11). While it acknowledges that universities’ “scientific, pedagogical, administrative and financial autonomy and autonomy as regards their articles of association is recognised by Article 76(2) of the Constitution”, it does, however, partly trim the scope of that autonomy by using terms which are new and innovative compared to those which had been used up until then, and which even make it possible to turn public higher education institutions into private-law public foundations (Article 129).
Having said this, it is not important to the decision before us to consider the new rules at length, inasmuch as the decision against which the present appeal has been brought did not apply them in any way.
As we will set out in more detail in a moment, there is no doubt that the rule laid down by Article 76(2) of the Constitution sees university autonomy as a fundamental guarantee whose subjective extent goes beyond the mere institutional level and also projects itself to some extent into the sphere of university agents – particularly as regards freedom of research, teaching, thought, and pedagogy – always in compliance with the Constitution and embracing that which is customarily called the ‘freedom of professorship’.
However, it is also true that it does not bring greater precision to the concept of university autonomy, limits itself to indicating the material domains to which that autonomy applies (scientific, pedagogical, administrative and financial autonomy and autonomy as regards articles of association), and leaves it to the ordinary law to define the specific scope of the concept.
Having said this, this constitutional precept does at least enable us to infer that the ordinary legislative authorities are obliged to provide the guarantee of university autonomy in the domains listed above with a content that is both useful and constitutionally important –something that entails making provision for a set of rules that safeguard universities’ own specific interests in relation to these matters.
The legislators who wrote the Constitution thus left the broader or narrower extent of the terms in which this autonomy can be expressed – or the general limits on its normative scope – to their ordinary counterparts, who were to implement it by means of a formal law (the framework law governing the autonomy of universities).
University autonomy is thus exercised within the parameters and limits of a framework law that expresses the “general delimitation of the framework for the various aspects or configurations in which this autonomy is to express itself”, whether it concerns universities’ own status as public bodies corporate, or the way in which they organise themselves in order to pursue their own purposes.
And here, universities “[…] will only be autonomous to the extent that they are acknowledged to possess a domain of their own interests (affairs) – a domain in relation to which the state administration restricts itself to exercising a merely coordinating form of oversight; i.e. to the extent to which they constitute something more than mere instruments (albeit equipped with a public-law persona – albeit public institutes) of the state’s indirect administration, as has traditionally been the case here in Portugal” (J. Casalta Nabais, op. cit., p. 353).
At the time when the rule whose constitutionality is the object of the present appeal was published, as we have said, this university autonomy was regulated by Law no. 108/88, which defined the terms under which universities possess exclusive responsibility for their articles of association (Article 5), scientific autonomy (Article 6), pedagogical autonomy (Article 7), administrative and financial autonomy (Article 8), and disciplinary autonomy (Article 9). The legislative authorities also ordered that universities should have their own assets, and laid down what income, financing, and tax exemptions universities should benefit from (Articles 10 to 12).
On the subject of the “means needed to exercise autonomy” (and here we will limit ourselves to the scope that is essential to the case before us), Article 15 of that Law states that “every university shall dispose of the human and technical means needed to exercise autonomy” (paragraph ), and that “universities shall be responsible for recruiting and promoting both their teachers and researchers, and the rest of their staff, as laid down by law” (paragraph ).
This precept thus means that universities possess the power to define their own rules and recruit and promote their teachers and researchers, but only “within the provisions of the law”.
On the other hand, this matter does not have to be the object of a formal law, and can perfectly well be regulated by an Executive Law issued by the Government – unless any aspect of it infringes the scope of the Assembly of the Republic’s exclusive or partially exclusive responsibility to legislate, which at the time was provided for by Articles 167 and 168 of the Constitution.
The matter of the recruitment and promotion of university teachers was handled at the time by Executive Law no. 448/79 of 13 November 1979 (Statute governing the University Teaching Career Structure) – a law that was the object of eleven amendments up until the publication of the authorisation rule which is at stake in the appeal before us (Law no. 19/80 of 16 July 1980; and Executive Laws nos. 316/83 of 2 July 1983, 381/85 of 27 September 1985, 392/86 of 22 November 1986, 145/87 of 24 March 1987, 147/88 of 27 April 1988, 412/88 of 9 November 1988, 35/85 of 1 February 1985, 456/88 of 13 December 1988, 393/89 of 9 November 1989, 408/89 of 18 November 1989, and 388/90 of 10 December 1990).
8.4 – This thus poses the question as to whether the authorities that issued Executive Law no. 34/93 of 13 February 1993 acted outside the terms of the authorising law – in this case, Law no. 2/92 of 9 March 1992.
We should recall that by passing Article 5 of the latter Law, the legislative authorities granted the Government authorisation to “change the statute governing senior administrators of the departments and bodies belonging to the central, regional and local administrations, as laid down by Executive Law no. 323/89 of 26 October 1989, and especially Articles 18 and 19 thereof, with a view to more clearly defining the right to a career, together with the right to the compensation provided for by Article 18(7) and (8) of the same Executive Law”, along lines that entailed continuing the “pursuit of the improvement and modernisation of the legal rules governing the civil service”.
We can say straight away that the ordinary legislative authorities were not unaware of the official interpretation of Article 18(2)a of Executive Law no. 323/89 of 26 September 1989, which was set out in the Formal Opinion issued by the Office of the Attorney-General of the Republic on 14 May 1992, which was published in Series II of the Diário da República of 26 November 1992 and homologated by order of the Assistant Secretary of State for the Budget on 26 June 1992. This document states that “the right to appointment to a higher category which the aforesaid subparagraph a) awards to staff who are appointed to senior administrative positions solely on the basis of the length of service laid down by that rule, does not benefit staff who originally come from the scientific research career structure of the National Laboratory of Scientific Engineering (LNEC) or the career structure of the Inspectorate-General of Finance (IGF), unless the specific requirements to which progress in the respective career structure is subject are met”, and that as such, this set of rules did not apply to university teachers.
On the other hand, we know that by setting out a special system for progress in the civil service career structure – one that was based on the occupation of senior administrative positions in the civil service – the legislative authorities sought to help persuade qualified civil service managers, who were often incorporated into different career structures, to be willing to do such jobs.
Opening up the system set out by the precept that is being challenged in the present appeal to the various special career structures is obviously a means of promoting the “improvement and modernisation of the legal rules governing the civil service”, which the legislative authorities who passed the authorisation law created as a material guideline for the legislative authorities who received the authorisation.
At the same time, given that when they regulated the matter in the precept that is under consideration here, the legislative authorities adopted a dichotomous system for qualifying the career structures of civil servants, which they divided between staff from the general career structure and those from the special bodies (doing so, indeed, along the lines of the previous provisions of Executive Law no. 248/85 of 15 July 1985, which distinguished between the rules governing career structures that were subject to the general system and those in the special system), we must consider that teachers are included in the special career structure for this purpose.
What is more, the fact that the actual expression that was used, which sums up the heart of the definition of the purpose of the legislative authorisation – “to change the statute governing senior administrators of the departments and bodies belonging to the central, regional and local administrations laid down by Executive Law no. 323/89 of 26 October 1989, and especially Articles 18 and 19 thereof” – refers to changing the statute governing senior administrators of the departments and bodies belonging to the central, regional and local administrations, and “especially” to the content of Article 18, fully supports the view that one purpose of the legislation, which is appropriate and adequately expressed in the text, was that this change could also cover civil servants incorporated into special career structures, on condition that this change took account – as in fact then happened (we may recall that Article 18, as amended by Executive Law no. 34/93, laid down that the application of these rules “to staff who originally came from a special career structure or body shall be dependent on fulfilment of the special access requirements laid down by the respective regulatory laws, as well as on the required academic qualifications”) – of the specificities involved in compliance with the specific requirements needed to demonstrate professional competence in those career structures.
It is thus possible to conclude that the purpose of the authorisation law included granting the Government legislative powers to extend, with the adaptations imposed by the special nature of the respective career structures, the rules that had previously been provided for by Executive Law no. 323/89 to the special civil service bodies, among which university teachers can be included.
Therefore, the rule before us does not suffer from the claimed organic unconstitutionality.
However, even if we were to reach another conclusion as to the interpretation of the precept contained in Article 5 of Law no. 2/92, we would always arrive at the same result in terms of the absence of any failure to fulfil the terms of the legislative responsibility established by the Constitution.
The fact is that Article 168(1)v of the Constitution only included the “basic general elements and scope of the civil service” in the Assembly of the Republic’s partially exclusive responsibility to legislate.
In the absence of a law that defines those general principles, the Constitutional Court has always believed that this exclusivity only includes “the establishment of the framework of fundamental basic principles” for the regulation of the civil service (see Rulings nos. 78/84, 142/85, 190/87, and 340/92, as respectively published in the Diário da República of 11 January 1985 and 7 September 1985 [both Series II], 2 July 1987 [Series I], and 17 November 1992 [Series II], and Ruling no. 494/99, as published in Series II of the Diário da República of 1 September 1999).
Having said this, it is not possible to consider the establishment of a set of rules which incentivises working for the public sector in senior administrative positions, like the one that underlies the rule which is challenged in the present appeal, to be a general principle that bypasses the general rules governing the civil service.
As the Court said in Ruling no. 65/00, which was published in Series II of the Diário da República of 23 October 2000 and in Acórdãos do Tribunal Constitucional, vol. 46, p. 351 (similarly, also see Ruling no. 119/02, which is available for consultation at www.tribunalconstitucional.pt), and which analysed the same question in relation to the special body of the Inspectorate-General of Finance, the correct understanding is that “circumscribed and restricted as it was, the Government’s legislative intervention did not interfere with the area of responsibility that is reserved to the Assembly of the Republic, and was therefore not lacking in parliamentary authorisation”.
8.5 – It is now important to address the issues of material unconstitutionality for which the present appeal argues “on the grounds of a breach of the constitutional principles of justice, equality, and the autonomy of universities”.
The response to this question requires us to look again at the constitutional purpose of university autonomy and of its limits, this time as parameters with which the ordinary legislative authorities – be they those who issue the authorisation to legislate, or those who issue the legislation so authorised – are obliged to comply.
And we must of necessity return to this analysis, apart from anything else because our ability to address the problem in the other domains presupposes an understanding of the normative reality within which we must situate the issues of equality and justice.
The autonomy of universities has established itself over time, essentially and above all as the freedom to think, conduct research and teach; but this is a freedom which is institutionalised, within the social community, or is exercised, in an objective manner, by a specific scientific corpus.
By acknowledging in Article 76(2) that universities possess the autonomy to decide their own articles of association and scientific and pedagogical, administrative and financial autonomy, our Constitution in fact enshrines the axiological/historical core of that which truly identifies them: institutions which practise the freedom to think and conduct research, which base their activities on that freedom, and which transmit the knowledge that is obtained in this way to both university students and the social community.
Article 42 of the Constitution recognises that freedom of intellectual, artistic and scientific creation is a fundamental right, which also includes the “right to invent, produce and publicise scientific, literary and artistic works and shall include the protection of copyright by law”.
Article 43 guarantees the fundamental freedom to learn and to teach, prohibits state directionism of education and culture “in accordance with any philosophical, aesthetic, political, ideological or religious directives”, and lays down the non-denominational nature of the public teaching system.
University autonomy seeks to institutionally guarantee the exercise of that freedom to conduct research and to teach, which are acknowledged to be fundamental personal rights.
To that extent, a university is simultaneously an institution which affirms its own existence in its scientific freedom and in the freedom to teach the knowledge that has thus been obtained – in that which is customarily called the ‘freedom of professorship’ – and a body which is essentially composed of ‘university professors’ who personally exercise that scientific freedom and freedom to teach, and who transmit the knowledge they have achieved to university students.
There is no doubt that that teaching is also the concrete implementation of the right to education and to teach in its higher education form (see Articles 73, 74 and d, and 76), and to that extent corresponds to the aspect of universities as public service providers.
However, this is a service which is provided under different terms than, and possesses a different nature to, those provided by other public establishments – even those which form part of the education system.
As Tomás Ramón Fernández (La autonomía universitaria: ámbito y limites, Editorial Civitas, S.A., p. 46) says about the identical normative framework established by the Spanish Constitution, the difference “is that at university one teaches and engages in research, and for learning and research, which are the raison d’être of this particular public service, freedom is absolutely essential. […]. At university people teach because they conduct research. […]. The specific characteristic of a university – the one which distinguishes it from the other institutions in the education system – is that it is where a country’s science (good or bad) is “done”, where consequently that scientific corpus in a perpetual state of rebirth that the other institutions limit themselves to transmitting and propagating in accordance with the guidelines that the people in charge of the system import, is produced. Unlike the staff of such other institutions, a university professor transmits that which he is himself learning day by day; he is thus more than a mere transmitter – he is an active subject in the scientific process, whose work as such leads to a hypothesis that is incompatible with the existence of any guidelines, which, if they were to manage to impose themselves, would purely and simply distort his function in society and would automatically take away his own role as the author of such guidelines”.
This scientific freedom or ‘freedom of professorship’, which is innate in the scientific and pedagogical autonomy which the Constitution grants universities, postulates on the one hand that access to the functions of university teacher and researcher and progress in that career structure should only occur in accordance with the criterion of merit and university-level scientific and pedagogical ability, and on the other, that university teachers, as agents of that scientific freedom, must necessarily take part in that assessment process.
The scientific freedom that is a presupposition of universities’ scientific autonomy must thus exclude both those interventions “from without” which have the effect of limiting the exercise of that scientific freedom, and those interventions “from within which are capable of leading to the same kind of limitation” (Tomás Ramón Fernández, op. cit., p. 52).
On the other hand, the legislative authorities cannot fail to be aware that the administrative and financial aspect of university autonomy grants the university institution the power to decide how to allocate its resources – a power which is restrained by the external imposition of a teacher’s promotion to a higher category.
The fundamental right of access to public positions under conditions of equality and freedom that is enshrined by Article 47(2) of the Constitution is also entirely valid as regards access to teaching positions and the competitive selection processes that are provided for in relation to progress in the university career structure.
Now, we cannot forget that the Constitutional Court has produced a vast jurisprudence about Article 47 of the Constitution, in which it states that access to work in the civil service (and progress therein) includes: the right of every person not to be excluded from the possibility of such access – either to the civil service in general, or to a specific function in particular – unless it is because he lacks the specific requirements that are appropriate to the function in question (e.g. age, academic or professional qualifications); respect for equality and freedom, where there cannot be any discriminatory or differentiated treatment based on factors that are irrelevant, nor any sets of restrictive rules that would constitute an attack on that freedom; and lastly, the obligatory adoption of the competitive selection process rule as the normal way of selecting appointees, including on initial entry into the civil service, and the subjection of any case in which an appointment is made without a competitive selection process to the need for due justification (among many others, see Rulings nos. 53/88, published in Acórdãos do Tribunal Constitucional, vol. 11., p. 303 et seq.; 371/89, which is available for consultation at www.tribunalconstitucional.pt; 683/99, published in Series II of Diário da República, no. 28, dated 3 February 2000; 368/00, published in Series I-A of Diário da República I no. 277, dated 30 November 2000, p. 6886; and 406/2003 and 61/04, which are available for consultation at www.tribunalconstitucional.pt).
On the subject of a case concerning progress in a career structure, the abovementioned Ruling no. 371/89 says the following, the merit of which we reaffirm here:
“From the perspective of this constitutional precept, the principle of equality – both at the level of the freedom to choose a profession, and at that of the right of access to work in the civil service and to progress in the respective career structure – is perfectly compatible in these domains with an objectively defined preference for the most qualified and capable persons. However, in these particular situations, the Constitution considers such a preference, founded on greater qualification and professional capability, to be not a factor for discrimination, but rather a guarantee of the principle of equality itself.
It is understandable that this has to be this way, given that while it is true that people, as people, have something in common – something that is naturally derived from their own dignity as human persons – and should consequently be treated equally, particularly by the legislative authorities, to the limits of that common element, it is no less true that there are differentiating elements which, by their objective reasonableness, undoubtedly postulate a corresponding normative differentiation. One such differentiating element, which justifies unequal legislative treatment at the level of people’s careers, is the difference in qualification and professional ability between two groups of human beings – a situation which, as we have seen, the Constitution of the Portuguese Republic (CRP) declaredly acknowledges and protects”.
Thus equality in the access to teaching functions and progress in that career structure should only be operated by means of selection methods in which only scientific merit and capacity count, in tests which are open to everyone who, at that moment in time, is able to apply to take them.
It is clear that these methods can vary enormously.
Inasmuch as autonomy is an attribute of all universities – as such, it simultaneously possesses the nature of a personal right and a collective institutional right (the latter belonging to all universities) – one must acknowledge that the ordinary legislative authorities possess the constitutive responsibility, power and discretionary ability to shape a method with a general nature which, “also in a general way, guarantees everyone an equal chance and the public comparison of their respective merits and capacities” (with reference to the Spanish and Italian systems respectively, see Tomás Ramón Fernández, op. cit., p. 59, and Giuseppi da Costa, op. cit., p. 69).
This “comparison” presupposes the openness of the whole means of accessing and progressing in the university career structure, failing which the principle of scientific freedom or ‘freedom of professorship’ may be hobbled – in other words, such openness requires that the means of access and progress be operated in accordance with the rule that both absolute and relative merit must be assessed.
So it is important to know whether the precepts before us in the present case comply with those constitutional parameters (Brazilian legal theory also talks about aspects of autonomy [Edivaldo M. Boaventura, op. cit., p. 301 et seq.] and legal limits thereon [Giuseppi da Costa, op. cit., p. 69 et seq.]).
The ruling against which the present appeal has been brought answered this question in the affirmative. In summary, it did so on the basis of the consideration that the requirement for equality is not the same as equalitarianism, and thus “the principle of equality does not prohibit distinctions, but only those which are lacking in material grounds”, and that in the case at hand there is no material reason why the special right enjoyed by senior civil service administrators, which the legislative authorities created in order to reward them for performing senior administrative functions for a given period of time, should not apply “to professors, who are also civil servants, albeit ones who form a special body”.
The principle of equality is covered very extensively in the Constitutional Court’s jurisprudence, and it is possible to say that the latter reflects a consensus about some of the terms in which the principle is formulated.
These consensual terms undoubtedly include those expressed in Ruling no. 180/99 (Acórdãos do Tribunal Constitucional, vol. 43, p. 135 et seq.):
“(...) the principle of equality requires that situations which fall within the same essential category be treated in the same way, and that situations which belong to essentially different categories also be treated differently. Differentiated forms of treatment are consequently admissible, on condition that grounds for that differentiation exist in the light of the axiological criteria laid down by the Constitution itself. Equality only prohibits discrimination when the latter is lacking in rational grounds (in particular, see Rulings nos. 39/88, 186/90, 187/90 and 188/90, Acórdãos do Tribunal Constitucional, vol. 11 (1988), p. 233 et seq., and vol. 16 (1990), pp. 383 et seq., 395 et seq., and 411 et seq., respectively; for the views of legal theorists, see Jorge Miranda, Manual de Direito Constitucional, vol. IV, 2nd edition, 1993, p. 213 et seq., Gomes Canotilho, Direito Constitucional, 6th edition, 1993, pp. 564-5, and Gomes Canotilho and Vital Moreira, Constituição da República Portuguesa anotada, 1993, p.125 et seq.)”.
Along the same axiological/argumentational lines, Ruling no. 409/99 (in Acórdãos do Tribunal Constitucional, vol. 44, p. 461 et seq.) says:
“The principle of equality enshrined by Article 13 of the Constitution of the Portuguese Republic requires that that which is essentially equal be treated equally, and that which is essentially different be treated differently. In reality, when seen as an objective restriction on the discretion to legislate, the principle of equality does not prevent the law from adopting measures which establish distinctions. It does, however, prevent the creation of measures which establish discriminatory distinctions – i.e. unequal forms of treatment that do not possess due grounds, or any reasonable, objective and rational justification. As a principle which binds the law, the principle of equality results in a general idea that arbitrariness is prohibited (on the principle of equality, see, among others, Rulings nos. 186/90, 187/90, 188/90, and 1186/96, as published in the “Diário da República” of 12 September 1990 and 12 February 1997 respectively, and 353/98, which has not yet been published).”
In turn, on the subject of the method used in the negative control of the principle of equality, “which is exercised on the basis of the purpose (which the rules) seek to achieve, in the light of the principle that arbitrariness is forbidden (Willkürverbot), and of a criterion of reasonableness”, Ruling no. 232/03, as published in Series I of the Diário da República of 17 June 2003 and in Acórdãos do Tribunal Constitucional, vol. 56, p. 7, says the following, to which we here fully subscribe:
“(…) as the “inventor” of the principle that arbitrariness is forbidden – Gerhard Leibholz – argued (see F. Alves Correia, O plano urbanístico e o princípio da igualdade, Coimbra, 1989, p. 419 et seq.), it is on the basis of the discovery of the ratio of the provision in question that it is possible to assess whether the latter possesses “reasonable grounds” (vernünftiger Grund). Here in Portugal this idea has been reiterated by Maria da Glória Ferreira Pinto: “(I)nasmuch as that which is at stake is (...) a given way in which the law treats certain situations, the criterion that will determine whether those situations are equal or unequal is directly decided by the 'ratio' of the legal treatment one wants to give them – i.e. it is functionalised by the purpose which the aforesaid legal treatment is supposed to achieve. The 'ratio' of the legal treatment is thus the ultimate point of reference for determining the value of, and choosing, the criterion” (see “Princípio da igualdade: fórmula vazia ou fórmula 'carregada' de sentido?”, published as separate sheets with Boletim do Ministério da Justiça no. 358, Lisbon, 1987, p. 27). The same author goes on to say: “(The) structure of the principle of equality thus means that the valuation criterion which permits the judgement as to whether or not something can be qualified as equal, is indissolubly linked to the 'ratio' of the legal treatment which determined it. This does not mean, however, that the 'ratio' of the legal treatment requires that the concrete criterion which is to be adopted for the purposes of qualifying equality be this particular one and not that other one. At the end of the day this means that what is required is a link between the criterion which is adopted and the 'ratio' of the legal treatment. So if one wants to create an exemption from an occupational tax, there will be compliance with the principle of equality if the criterion for determining the situations which are to be exempt consists of the choice of a set of professionals who are looked down on in the social context, just as there will be compliance with the principle if the criterion consists of the choice of a minimum income deemed indispensable to the subsistence of a family in a given society” (op. cit., pp. 31-32).
It is good to see that, as the ruling against which the present appeal has been brought appropriately notes, the ratio of the concrete precept which is before us in this case is based on the desire to provide civil servants with a motivation to agree to perform senior administrative functions in the public service, when such functions are not included in their own career structure. This motivation takes the shape of the civil servant’s appointment, once his time in the senior administrative position is over, to a category above that which he possessed when he took up that position.
In the case of university teachers, we might even add that the performance of functions outside university would be a clear implementation of the purpose of the aforesaid legislative authorisation – that of the “pursuit of the improvement and modernisation of the legal rules governing the civil service” – given that in these material domains of the Public Administration, it enhances the application of different professional competencies and high-level technical and scientific knowledge which the person acquired in the course of his university functions and which can be of great benefit to the Public Administration, especially in terms of the possibilities for innovation and adaptation to the requirements of modernity, to the extent that one considers that, as a general rule, universities are at the forefront of current scientific knowledge.
However, the performance of those outside functions, and perhaps the merit achieved therein, can only be of interest to access to, or progress in, the university career structure under the selfsame terms in which it is possible to gauge the merit and scientific ability of other teachers.
University autonomy, and the scientific freedom and ‘freedom of professorship’ which are implied therein, require that assessments for teaching positions and career progress continue to use the same general method, which involves publicly comparing ability and merit – in other words, are conducted in accordance with the rule of assessing absolute and relative merit.
As such, the acquis – even that of a scientific or pedagogical nature – which a teacher who has occupied a senior administrative position in the civil service may have acquired outside the university, can only be of use when subject to the application of the general method that is established for the purpose of assessing merit and scientific ability.
We must thus conclude that the ratio of the precept which has been challenged in the present case lies outside the domain of the aspect of university autonomy – the autonomy to draw up articles of association, and scientific and pedagogical autonomy – that we have characterised above.
The ratio of the normative criterion which is at stake lies completely outside that of the criterion of assessment according to merit and scientific ability postulated by the autonomy of universities, and thus has no link to it.
There is therefore no sufficient material reason to dispense a university teacher from a competitive selection process in which his absolute and relative scientific merit and ability can be considered.
It is thus clear that Article 18(2)a and (3) of Executive Law no. 323/89 of 26 September 1989, as amended by Executive Law no. 34/93 of 13 February 1993, is unconstitutional because it represents a conjugated breach of the principle of access to work in the civil service, as a corollary of the constitutional principle of equality (Articles 47 and 13), and the principle of the autonomy of universities (Article 76, all three references to the CRP).
C - Decision
9 – Thus, in the light of the above, the Constitutional Court hereby decides to:
a) Hold unconstitutional, for a conjugated breach of the principle of access to work in the civil service enshrined by Article 47(2) of the Constitution of the Portuguese Republic, as a corollary of the constitutional principle of equality enshrined by Article 13 thereof, and the principle of the autonomy of universities laid down by Article 76(2) of the Constitution, the rule set out in Article 18(2)a and (3) of Executive Law no. 323/89 of 26 September 1989, as amended by Executive Law no. 34/93 of 13 February 1993, when interpreted in such a way that university teachers at public universities can be promoted with dispensation from a competitive selection process in which their absolute and relative merit is considered.
b) Uphold the appeal and order the review of the decision against which it was brought, in accordance with the above judgement of unconstitutionality.
c) Order the respondent to pay costs, because he presented counter-arguments, with the court costs set at 25 units of account.
Lisbon, 7 October 2008
João Cura Mariano
Joaquim de Sousa Ribeiro
Mário José de Araújo Torres
Rui Manuel Moura Ramos