Teismų kreipimasis į Konstitucinį Teismą kaip darbo teisės konstitucionalizacijos prielaida
Application of Courts to the Constitutional Court as a Precondition for the Constitutionalisation of Labour Law

Summary/Abstract: The article analyses the relationship between the constitutional right (duty) of courts to apply to the Constitutional Court and the constitutionalisation of labour law. Attention is drawn to the fact that the official constitutional doctrine incorporates the unfolding of the aspects that are significant to both collective and individual labour law. It is showed that the application of legal acts comprising labour law exposes certain conflicts of the established legal regulation with the values consolidated in the Constitution and with legal reality, and makes it evident that the regulation of labour relations lacks legal certainty. The said facts induce the situation, where the evolution of constitutional values exerting direct influence on labour law is not sufficient, and where courts of general jurisdiction and specialised courts fail in the course of considering cases related to the protection of labour rights to make use, in an adequately effective manner, of their constitutional right to apply to the Constitutional Court. Applications filed with the Constitutional Court by courts of general jurisdiction and specialised courts, as well as the subsequently adopted final acts of the Constitutional Court, are showed to embody the dialogue taking place within the boundaries of the national law system among courts and judges. Among other things, it is argued that the courts’ position, due to whatever reasons (inter alia, prolonged time limits of case consideration) not to apply to the Constitutional Court, when doubts arise with regard to the constitutionality of a legal act applied in the case being considered by them, has balanced on the verge of lawfulness, and that the judges adopting such a position face the risk of administering formal justice. Taking a look at the practice of courts, the article examines the application of some explicitly consolidated norms of labour law, including the jurisprudential legal regulation of non-compete agreements and employment contracts concluded with heads of administration, which has become a classical part of the theory of labour law. The assumption is made that the jurisprudential legal regulation of non-compete agreements and employment contracts concluded with heads of administration, as legitimised in the case law of the Supreme Court of Lithuania, indicates that, in individual cases, in the practice of courts, a gap in a legal regulation is not only filled in in an ad hoc manner, but that the practice of courts may also produce a rather authentic system of rules of legal regulation, which, while taking account of the scope of such jurisprudential legal regulation, the duration of its validity, and its links with the limitation of certain constitutional labour rights, is hardly compatible with the constitutional requirement of legal certainty. It is noted that in the latter situations courts are made law-making subjects, first of all, through the inaction (insufficient action) of lawmaking subjects

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