Administrative Law – Professional public associations – Professional orders
Exercising a profession;
Requisites for membership of a professional order;
Transitional regime, grandparenting.
RULING No. 851/14
10 of December of 2014
The Constitutional Court found part of a norm included in the Statute governing the Order of Portuguese Psychologists (EOPP) to be unconstitutional. The norm sets out the requisites for registering as a member of the Order, and the offending section subjected that registration and thus the ability to practise as a professional psychologist in Portugal to possession of a Bachelor’s Degree (formerly Licentiate) in Psychology. The unconstitutional flaw in the precept was that it did not safeguard the legal position of persons who already exercised the profession of psychologist under the previous rules, and the Court found that this was in violation of the constitutional principle of the protection of trust (legal certainty).
The Court noted that this is a very sensitive matter, which touches on the core of the right to choose a profession freely. Without prejudice to the legislator’s ability to reverse the law – a distinctive characteristic of the legislative function, and one that justifies the fact that there is no generic constitutional prohibition on retroactivity – when one applies the directives that operationalise the principle of the protection of trust to the norm in question, one must bear in mind that the latter directly conflicts with people’s freedom to choose a profession which they had been practising lawfully under the terms of the requisites that had applied up until the norm’s entry into force.
Although the court a quo had concluded that the change in the legal system brought about by making it necessary to hold a bachelor’s degree (licentiate) in order to exercise the profession of psychologist was something that was perfectly expectable, the Constitutional Court noted that recent history shows there is a legislative tradition in Portugal whereby the imposition of new requisites for engaging in a professional occupation is generally accompanied by a transitional regime. These regimes allow existing practitioners to register with public associations during a given transitional period, even though they do not fulfil the new requisites.
Citizens’ expectations that there will be such a transitional regime appear to be legitimate and founded on good reasons. This is an essential area of the exercise of the freedom to choose and engage in a profession, and one in which the legislator must be especially careful when making changes that are capable of taking away the possibility that people can pursue an occupation which was, reasonably, the driving force behind their income and subsistence up until then. It would not be expectable on either the factual level, or that of the normativity of the legal system, for supervening requirements in relation to the exercise of a profession to appear without provision being made for a transitional regime.
Nor could the Court find a particularly important public interest that would have enabled it to disregard the need to observe the principle of the protection of trust (legal certainty).
This concrete review case resulted from an appeal against a decision of the Central Administrative Court – South (TCAS).
The Statute governing the Order of Portuguese Psychologists (EOPP) norm submitted to the Constitutional Court was approved by a 2008 Law that did not make provision for the position of psychologists who were already pursuing that professional occupation under the previous legal framework.
The appellant alleged the norm undermined the constitutional right to exercise a profession, and was thus in breach of the principles of need, appropriateness and proportionality to which the Constitution subjects norms that restrict constitutional rights, freedoms or guarantees. The appellant in the present case submitted a request for an injunction to protect constitutional rights, freedoms and guarantees to the Lisbon Judicial District Administrative Court (TACL), and when she was unsuccessful, appealed to TCAS, and then on to the Constitutional Court.
The object of the present appeal on the grounds of unconstitutionality was directed at the part of an EOPP norm that subjected membership of the Order of Psychologists, and thus the exercise of that profession, to possession of a Bachelor’s Degree (Licentiate) in Psychology. This was a new requisite and no provision was made for a transitional regime for persons who did not hold such a degree, but who did fulfil the requirements which had applied until the new norm had entered into force – particularly possession of the former Psychologist’s Professional Accreditation.
Until the Order and its Statute were created, Portuguese psychologists who had trained before there was a Bachelor’s Degree (Licentiate) in Psychology in Portugal had practised with the qualifications needed at the time.
Those qualifications did not include membership of a professional order – there was none – but did involve holding professional accreditation. The 2008 Law then made membership of the Order of Psychologists a condition for the professional practice of psychology in any sector of activity.
2012 did see the approval of a regime that permitted admission to the Order by means of a “grandparenting” system, which was an alternative channel for access to registration with the Order and thus the ability to practise as a professional psychologist, subject to fulfilment of several cumulative requisites. However, the Constitutional Court considered that the existence of this alternative was not relevant to its ruling on the norm before it. The “grandparenting” system was introduced under the regulatory authority of the Order of Psychologists itself, but the Court said that the question of constitutionality here was clearly linked to the freedom to gain access to a profession, and that that freedom is one of the personal constitutional rights, freedoms and guarantees. Only the Assembly of the Republic is competent to legislate on matters concerning constitutional rights freedoms and guarantees, although it does have the power to authorise the Government to do so as well (i.e. this is an area which falls within the AR’s partially exclusive legislative competence). This means that on the legislative level, a transitional regime in this field could only be created by a Law passed by Parliament, or by an Executive-Law if the Government was authorised to issue it.
According to the Constitutional Court’s consolidated jurisprudence, given that what is at stake here is a measure which imposes substantial requisites or conditions for joining a public association, and inasmuch as that membership is obligatory in order to engage in the activity regulated by the association, the measure can only be seen as one that restricts the freedom to choose a profession; and this is an area in which it is not permitted for professional associations or ‘orders’ to possess autonomous regulatory competence.
The applicant successfully completed the Psychology Course at Instituto Superior de Psicologia Aplicada (Institute of Applied Psychology, ISPA) in the 1978/79 academic year, and obtained her professional accreditation as a psychologist in 1983. The ISPA Psychology Course’s curricular structure at the time meant that its completion did not award a bachelor’s degree (or more precisely in pre-Bologna terms, a licentiate). The course was only recognised as equivalent to a bachelor’s degree in 1986.
In order to determine the applicability of the principle of the protection of trust (legal certainty), one must scrutinise the consistency and legitimacy of the expectations of the citizens affected by a normative change. Trust of a kind that warrants protection exists when: (1) the legislator has behaved in ways that can lead private persons to expect continuity; (2) those expectations are legitimate, justified and based on good reasons; and (3) the private persons have made life plans which take into account the likelihood that the state will continue to behave in the same way. It is then necessary to weigh up whether, under the principle of proportionality, there are public-interest reasons why the amended regime should not continue in its previous form, and thus why it is justifiable for the existing trust not to be protected. Constitutional jurisprudence says that when this weighing-up process takes place, and above all when what is at stake are lasting legal relations in the professional domain or certain fundamental rights, such as the right to a pension, significant importance must be attached to whether or not provision is made for a transitional regime that makes it possible to mitigate the abrupt nature of the normative changes.
The norm before the Court in the present case could be said to be inauthentically or retrospectively retroactive, to the extent that it was a normative provision which, while seeking to have effects in the future, touched on situations that had been formed in the past and continued to exist. This was the situation in which the appellant found herself: after previously securing the right to practise as a professional psychologist by obtaining the applicable professional accreditation, the new norm meant that for her to be able to go on practising, she needed an academic qualification – a bachelor’s degree – she did not possess.
As such, and without sufficient reason for doing so, the norm thwarted a legitimate trust or certainty that was deserving of constitutional protection, and the Court declared it unconstitutional.
Rulings nos. 347/92 (04-11-1992); 786/96 (19-06-1996); 255/02 (12-06-2002); 368/03 (14-07-2003); 355/05 (06-07-2005);128/09 (12-03-2009); 3/10 (06-01-2010); 3/11 (04-01-2011); 362/11 (12-07-2011); 88/12 (15-02-2012); 89/12 (15-02-2012); 176/12 (28-03-2012); 353/12 (05-07-2012); and 294/14 (26-03-2014).