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Portugal / Constitutional Court / 754/13

Pre-emptive ruling concerning some rules laid down in parliamentary Decree 177/XII of the Parliament

Policy area:
Employment and social policy
Deciding Body type:
National Court/Tribunal
Deciding Body:
Portugal / Constitutional Court
Decision date:

Key facts of the case:

The prior review of the constitutionality of certain rules laid down in parliamentary Decree 177/XII passed by the Parliament was based on two key points: I. Failure to observe the ‘just (or fair) cause’ criterion when binding labour contracts are terminated owing to rules allowing [surplus or redundant] civil service workers to be arbitrarily transferred and placed in a “situation demanding their re-qualification”; such dismissals are likely to occur in cases where these workers are deemed not to have resumed their duties after the re-qualification period has elapsed (cf. Special Mobility Procedure,; and II. Lack of compliance with the principle based on the protection of expectations or trust, which means to say, the result of applying the above-mentioned rules to civil service workers who had permanent contracts (tenure) at the time the law was enforced. This situation would therefore allow binding contracts to be terminated owing to the objective reasons which selected civil servants were obliged to comply with. In terms of point I, the grounds on which the request was made, basically considered that the rules in question, where the termination of the binding labour contract rested upon criteria that "were not sufficiently explicit" and “potentially arbitrary and in need of precision", were not justified in the light of the concept based on dismissal with “fair cause”, as laid down in Article 53 of the Constitution. Owing to the fact that they posed a threat to the fundamental right to job security, “they were oblidged to obey the principle of ‘the restrictive [nature] of the restrictions’ against the rights, freedoms and guarantees in Articles 18 (2) and (3) in the Constitution". As regards point II, the grounds of argument considered that the rules in question, “in suddenly doing away with guarantees against dismissal for objective reasons” involving designated workers and extending these reasons to cover them, “unpredictable and unfavourable changes will occur in the legal system that may enter into conflict with the legitimate expectations of the workers mentioned above, in the light of the principle of protection and legitimate expectations”.