Administrative Law – Military Law
Freedom to choose and pursue an occupation;
Unilateral termination of contract by a member of the armed forces;
Payment of compensation.
RULING No. 81/16
4 of February of 2016
The Constitutional Court found no unconstitutionality in a norm taken from the Regulations for the Military Service Law (RLSM), when interpreted to mean that it is acceptable to require an Air Force pilot to pay compensation as a condition for approving his/her unilateral request to terminate his/her employment contract either during the complementary training period, or before the end of the minimum length of service he/she is contractually bound to complete. The Court said it is broadly consensual that the constitutional freedom to choose one’s occupation is a complex fundamental right, which includes not only rights designed to defend citizens from being obliged to pursue a given occupation or prevented from choosing or exercising one, but also the right to advantages linked to the rights to work and to an education, such as the right to apply for the qualifications needed to engage in an occupation, the rights to enter and progress within the career structure linked to that occupation, and the right to actually pursue it. However, the final part of the applicable constitutional precept expressly accepts that the freedom to choose an occupation can be subjected to legal restrictions which are imposed in the collective interest or are inherent in the characteristics of the person in question, on condition that those restrictions are justified in the light of constitutionally relevant interests and are not excessive.
In the present case the Court took the view that establishing a minimum period during which pilots are contractually bound to the Air Force, and subjecting any reduction in that period to payment of an amount of compensation to the state that takes account of the “costs of the training provided and the expectation that the member of the armed forces will be functionally allocated” to the Air Force, as provided for in the RLSM, are restrictions that are capable of being justified by the collective interest. As such, it found no reason to find the norm unconstitutional.
This concrete review case resulted from an appeal against a Ruling of the Administrative Litigation Chamber of the Supreme Administrative Court (STA).
The appellant argued that the norm was unconstitutional because it allowed the Air Force to demand compensation as a condition for approving a unilateral request to terminate an employment contract, in an amount that can attain one hundred times the employee’s monthly salary and about twice the total he would have earned during the whole of his contract. In his opinion this violated both the negative dimension of the constitutional freedom to choose an occupation that entitles people not to continue to perform a function and not to be obliged to pursue a given occupation, and the positive dimension of being able to choose another occupational function.
The Court noted that similar legal duties are imposed in other legislative acts. Examples include: a Labour Code norm that allows employers to require minors who unilaterally terminate an open-ended labour contract during or immediately after the training period to compensate them for the direct cost they incurred in providing the training; and a norm in the Law that regulates entry into the career and the training of judges and public prosecutors and the nature, structure and modus operandi of the Centre for Judiciary Studies (CEJ), which imposes a legal duty on new judges and prosecutors to remain in the judiciary under a trainee regime for at least five years, and to reimburse the state in an amount equal to the allowance they received during their training if they leave of their own accord during that time.
It is common knowledge that training Air Force pilots means the Portuguese State must invest in a large range of infrastructures and human and financial resources. It is natural that inasmuch as that investment is paid for out of public funds, the state expects a return in the shape of the continuation of the pilot’s contractual bond for a given length of time, which is laid down by law. Otherwise the state would be using public resources drawn from taxpayers to fund the training of highly qualified professionals who could leave to go and work in the private sector at any time.
On the appellant’s argument that the norm was in breach of the principal of proportionality, the Court recalled its own jurisprudence, under which the way to control the prohibition of excess is to use a method based on a triple test: the principle of appropriateness (measures that restrict constitutional rights, freedoms and guarantees must prove pertinent to the pursuit of the desired goals, and must safeguard other rights and assets to which the Constitution affords its protection); the principle of requirability (those restrictive measures must be necessary in order to attain the goals in question, because the legislator does not have any less restrictive means to achieve them at its disposal); and the principle of fair measure, or proportionality in the strict sense of the term (measures cannot be excessive or disproportionate in relation to the sought-after goals).
In the present case the decision to impose payment of compensation by an Air Force officer for unilateral termination of his contract within a certain period of time was designed to compensate for the large investment the state had made in his training, thereby protecting the collective interest. The Court said that this means of achieving that result is proper and not inappropriate. A civilian pilot’s training course is very expensive, and if no compensation were payable in the event that Air Force pilots unilaterally terminated their contractual bonds, or if its amount were negligible, it would pay to train in the Air Force and then terminate one’s contract. The measure is thus not unnecessary. In addition, and contrary to the appellant’s arguments, the amount of the compensation was not excessive, given the costs of the training and the benefits to the pilot.
As such, the Court found no unconstitutionality in the norm.
Rulings nos. 634/93 (04-11-1993); 155/09 (25-03-2009); 94/15 (03-02-2015); and 509/15 (13-10-2015).