by Ricardo Sousa da Cunha, PhD (JUSGOV/UMinho, ESG/IPCA)
The Constitution of the Portuguese Republic (CRP) enshrines in article 47.º, n.º 2 a guarantee of public employment after a public tender that has been challenged in the application of European Union Law by the domestic courts.
This constitutional guarantee was the basis for the decision of the Constitutional Court n.º 368/00, of 11 July 2000, which upheld the challenges on the constitutionality of legal provisions (art. 10.º, n.º 2 of Law n.º 23/2004, of 22 June, and art. 14 of DL n.º 427/89, of 7 December) determining the nullity of labor contracts of public entities with civil servants that had not been selected by a public tender. The basis for this decision was the fulfilment of the constitutional principle of equal sharing of public benefits and costs as a consequence of the principle of the rule of law.
This position was called into question by the transposition of Directive n.º 1999/70/EC, of 28 June, on the Framework Agreement between CES, UNICE and CEEP on the provision for effective measures to protect workers against the use and abuse of conclusion of fixed-term employment contracts. The Directive does not distinguish between the exercise of public and private functions and, whereas the ordinary legislator referred to the transposition of the Directive in the Preamble to the Labor Law regarding private labor relations, such a reference was quite simply omitted for the public sector in Law n.º 23/2004, of 22 June. The fulfillment of the purposes of the Directive, precisely that of preventing the abuse in the use of fixed-term contracts, called into questions the legal provisions which determined the nullity of fixed-term labor contracts of public entities that had not been preceded by a public tender, under article 47, n.º 2 of the Constitution, unlike the solution for the private sector, which converts fixed term contracts for an indefinite period.
The application of the Directive led to a division in the case-law, whereby lower courts in many instances converted fixed term contracts, fulfilling the objectives of the Directive under the principle of legal interpretation conform to European Union Law, a consequence of the principles of primacy and loyal cooperation with the EU (article 4.º of the Treaty of the European Union), while others did not, following the traditional case law of the Portuguese Constitutional Courts that had upheld the legal solutions in line with article 47.º, n.º 2 of the Constitution, which demands the previous conduction of a public tender[i]. The nullifying effect attributed by the law under article 47.º, n.º 2 of the Constitution, to labor contracts without previous public tender was later upheld, in a different case, by the decision of the STJ, of 13 de July de 2017[ii], where the Supreme Court goes as far as refusing the request for a preliminary ruling, that should be mandatory under article 267.º § 3 of the Treaty on the Functioning of the European Union, considering that “the principle of the primacy of European law does not override the constitutional rules relating to the principles on which the democratic rule of law is based and the interpretation that, with general mandatory force, does the Constitutional Court”.
The question was again raised more recently by the incorporation of the services provided by municipal companies and foundations into Municipalities, which called into question the rights of the corresponding workers[iii]. The procedure for transition of the workers to the municipalities was laid out by by Law n.º 50/2012, of 31 de August (RJAEPL), as altered by Law n.º 71/2018, of 31 December that created a public tender limited to those workers transiting to the Municipalities, hence, paying homage to the demand of article 47.º, n.º 2 of the Constitution. The European Union Court of Justice, however, deemed this procedure unnecessary considering the application of Council Directive 2001/23/EC, of 12 March 2001, on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses in the Piscarreta case[iv] as well as the Cátia Correia Moreira case[v]. The transposition of this Directive had been ensured by article 285.º of the Labor Law, which led to the application under the principle of primacy and conform interpretation of the national legislation on the incorporation of workers of municipal companies and foundations.
More recently, the case-law of the Court of Appeal of Oporto (Tribunal da Relação do Porto) went a step further on this issue adopting interim measures regarding the transition to a Municipality of workers of a private company which concession was unilaterally terminated by the Municipality. The question again was the possibility of integrating into civil servants with prejudice to the previous public tender demanded by article 47.º, n.º 2 of the Constitution, under the principle of primacy and conform interpretation of the national legislation to the Council Directive 2001/23/EC, of 12 March 2001[vi]. In this decision the Court chose to distinguish the two situations stated here – the nullifying effect attributed by article 47.º, n.º 2 of the Constitution to labor contracts without previous public tender and the integration of workers of private companies which concessions had been reclaimed by the municipalities, as the Supreme Court had done in a decision of 11 September 2019[vii].
Despite the fact that the Court appears to have failed to adequately explain the distinguishing nature of the ratione decidiendi between the two cases, both of which equate in the establishment of indeterminate labor contracts with public entities without previous public tender, the evolution of the decisions of the Portuguese courts (lower courts, appeals courts and supreme court) in interpreting the relationship of European Union Law with Portuguese Constitution is evidence of a growing openness to European Union Law, moreover so in the lower courts. More interesting, still, is the fact that the Court reinforces (with the increased precision of the referred technique of distinguishing) the relevance of the argument on the role of the principle of specialty in solving normative conflicts between European Union Law and that of the Member States, even at the Constitutional level[viii]. More than concurrent affirmations of (political) sovereignty in a circular argumentation from which a satisfactory response is impossible, the dialogue between domestic legal orders and the European Union has allowed for many years a very fruitful mutual development. It will be, therefore, very interesting to read the decision of the Supreme Courts when settling the latest case of the relationship between the Portuguese legal order, under the Constitution, in this case article 47.º, n.º 2, and the European Union Law, namely the referred Directives on labor contracts with public administration, moreover so in the context created by the recent decisions of Constitutional Courts on the relationship between European Union Law and domestic law, namely of the Portuguese Constitutional Court[ix] and the BVerfG.[x]
[i] This reference refers to the jurisprudence of the Court of Appeal of Oporto (Tribunal da Relação do Porto) in Case of 22.02.2010, delivered at the Proc. 375 / 08.3TTGDM.P1, available at http://www.dgsi.pt/jtrp.nsf/c3fb530030ea1c61802568d9005cd5bb/3d23b8887204c763802576e3004d0d31?OpenDocument consulted on 17.01.2013, and in Case of 11/09/2009, at the Proc. 734 / 08.1TTVNG.P1, available at http://www.dgsi.pt/jtrp.nsf/c3fb530030ea1c61802568d9005cd5bb/8f033cd93cb1a492802576740054ccf9?OpenDocument, consulted on 17.01.2013.
[ii] Decision of the STJ, of 13 de July de 2017, in Proc. n.º 723/14.7TTPRT.P1.S1 available at http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/3c21226805bbd69b8025815d002daced?OpenDocument.
[iii] This solution was found to diminish the number of public entities in the country imposed by the Troika composed of the International Monetary Fund, the European Commission and the European Central Bank, during the financial after the sovereign debts crisis of 2013.
[iv] Case from the Appeal Court of Évora, of 28 de June 2018, the Case of the EUCJ n.º C-416/16, of 20 July 2017, available at http://curia.europa.eu/juris/liste.jsf?num=C-416/16&language=EN.
[v] Case n.º C-317/18, of 13 June 2019, available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=214945&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=13403559.
[vi] Case of TRP, of 14/07/2020, in Appeal Proc. n.º 2149/19.7T8VLG.P1, still under appeal to the Supreme Court.
[vii] Decision of the Portuguese Supreme Court of 11 September 2019, in Proc. n.º 2743/15.5T8LSB.L1.S1, available at http://www.dgsi.pt/jstj.nsf/954f0ce6ad9dd8b980256b5f003fa814/b1d91cafbd49223280258473003ac413?OpenDocument.
[viii] On the matter vide RICARDO SOUSA DA CUNHA, “A proibição de abuso na contratação laboral sujeita a termo pelo empregador público – conforme ao direito da UE é à margem da Constituição?”, Questões Laborais, n.º 44, Julho 2014, Coimbra Editora, páginas 15 a 40.
[ix] Case n.º 422/2020, of 15 July 2020, in Proc. n.º 528/2017, available at http://www.tribunalconstitucional.pt/tc/acordaos/20200422.html?fbclid=IwAR3jcYsOcF5Ppvrj2UQG2DFtz0rcUOTzAckS3lyw6xzfQAe8QzkY1IdEfMw)
[x] BVerfG decision of 5 May 2020, 2 BvR 859/15, 2 BvR 980/16, 2 BvR 2006/15, 2 BvR 1651/15, available at https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2020/05/rs20200505_2bvr085915.html;jsessionid=5C8E9BE377D3B7FE1036EAD46F0BB4B4.1_cid386.
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