EHRM, 20-12-2022, nr. 53282/18, nr. 31428/20

The retirement age was initially set by Article 8 § 1 of Law no. 3/1977 on public social security pensions and social assistance at 62 for men and 57 for women:

Article 8

On 31 March 2001 Law no. 19/2000 on the public pension scheme and other social security rights replaced Law no. 3/1977 and remained in force until 31 December 2010. It provided as follows, in so far as relevant:

Article 41

The matter is currently regulated by Law no. 263/2010 on the unitary public pension scheme (‘the Pension Act’), which replaced Law no. 19/2000. The Pension Act applies to workers with an individual work contract (see the Labour Code, paragraph 25 below) and civil servants (Article 5 of the Act). Article 53 § 1 of the Pension Act sets out the conditions that need to be met for an individual to be entitled to an old-age pension. It sets the retirement age at 63 for women and 65 for men. In addition, Annex no. 5 sets out the retirement ages and the minimum and maximum periods of contribution for men and women separately, depending on their date of birth — from April 1944 to January 1967 for women, and from January 1939 to March 1950 for men. In accordance with the calendar set out in Annex no. 5, by 2030 the standard retirement age for women would be 63, and by 2015 the standard retirement age for men would be 65.

Article 53

Law no. 53/2003 (‘the Labour Code’) prescribes the termination of an individual work contract in the following terms:

Article 56

This provision of the Labour Code was modified by Government Emergency Ordinance no. 96/2018, applicable as of 14 November 2018. In its new version, it read as follows:

On 10 May 2019, when Emergency Ordinance no. 96/2018 was approved by Law no. 93/2019, the time-limit for making such a request was reduced to thirty days.

The relevant provisions of Article 97 (a) and Article 98 § 1 (d) of Law no. 188/1999 on the civil service (‘the Civil Service Act’), as worded until 3 July 2018, read as follows:

Article 97

Article 98

Article 117

On 3 July 2018 Article 98 was amended by Law no. 156/2018 (on the amendment and supplementation of Law no. 188/1999), in order to allow the continuation of employment after a person had reached retirement age. The amended version read as follows:

The Administrative Code (Government Emergency Ordinance no. 57/2019) entered into force on 31 December 2019 and replaced the Civil Service Act. Article 517 reproduced the content of Article 98 of the Civil Service Act as amended in 2018.

Law 202/2002 on equal opportunity and equal treatment for men and women (‘the Equal Opportunity Act’) reads as follows, in so far as relevant:

Article 9 § 1 (b)

Government Emergency Ordinance no. 67/2007 on the application of the principle of equal treatment for men and women in occupational social security schemes (‘OUG no. 67/2007’) transposed into domestic law the provisions of Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes and Council Directive 96/97/EC of 20 December 1996. Both directives were repealed on 14 August 2009 by Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (see paragraph 70 below). The relevant provisions of the emergency ordinance read as follows:

Article 2

Article 8

Article 9

Article 13

The CCR's decision no. 107 (published on 26 April 1996) concerned the constitutionality of Article 8 § 1 of Law no. 3/1977 (see paragraph 22 above).

It was argued before the CCR that the difference in retirement age set by law for men and women breached women's rights and constituted discrimination based on sex, as it did not allow women to choose whether to retire or to continue working until reaching the same retirement age as that set for men.

The CCR dismissed the objection in the following terms:

On 12 March 1996 the CCR dismissed an appeal lodged against its decision no. 107 (see paragraph 35 above). The CCR reiterated:

In decision no. 888 (published on 24 January 2007), the CCR examined the constitutionality of several Articles of Law no. 19/2000 (see paragraph 23 above), in so far as it was argued that the existence of different periods of contributions to the pension scheme for men and women was discriminatory and put male workers at a disadvantage.

The CCR dismissed the objection and considered that although its previous decision no. 27 concerned the provisions of Law no. 3/1997, it also applied to Law no. 19/2000. It further noted:

In decision no. 191 (published on 2 April 2008), the CCR reaffirmed the constitutionality of the provisions of Law no. 19/2000 concerning the difference between men and women as regards retirement age and the period of contribution to the pension scheme. It also concluded that Directive 2006/54/EC (see paragraph 70 below) was not applicable, as it concerned ‘occupational social security schemes’ (Article 2 § 1 (f)) and did not cover public pension schemes such as those provided for by Law no. 19/2000 (see paragraph 23 above). The CCR reiterated that Directive 79/7/EEC, which it found to be applicable to the case (see paragraph 69 below), allowed member States to exclude from its application provisions on retirement age. For those reasons, it concluded that Law no. 19/2000 did not contravene the EU legislation on equal opportunities.

The CCR further noted that the EU institutions had repeatedly recommended that EU member States equalise the retirement age for men and women. However, it reiterated that it did not have jurisdiction to decide whether it was opportune to legislate in a certain manner, and that it was for the legislature to consider the EU recommendations.

Relying on Walker v. the United Kingdom (no. 37212/02, 22 August 2006), the CCR observed that the European Court of Human Rights had been flexible on the matter, and had accepted that a State policy of gradually harmonising retirement age had not breached Article 14 of the Convention.

The CCR concluded that at that point in time the Romanian social context had not undergone a radical change in relation to the aspects which had led the court, in its previous decisions, to uphold the constitutionality of the legislation instituting a difference in the retirement age for men and women.

In decision no. 1007 (published on 20 November 2008), the CCR dismissed another objection of unconstitutionality concerning the difference in treatment in terms of retirement. In so far as the objection concerned Law no. 19/2000, the CCR reaffirmed its previous decision no. 191. As for the provisions of OUG no. 67/2007 (see paragraph 32 above), which were criticised for not being applicable to the public pension scheme, the CCR reiterated that equality of treatment did not require homogeneity and the legislature was free to implement different regulations for different situations. The CCR explained that Directive 2006/54/EC, which OUG no. 67/2007 transposed into domestic law, only applied to occupational social security schemes, whereas the general scheme, created by Law no. 19/2000, fell within the scope of Directive 79/7/EEC (see paragraph 69 below). That directive, the CCR reiterated, allowed States to exclude from its scope provisions regulating retirement age.

In decision no. 1237 (published on 24 November 2010), the CCR dismissed an objection of unconstitutionality in respect of the Pension Act as a whole and several of its Articles in particular (see paragraph 24 above). The constitutional complaint, which was brought by several members of parliament, criticised, among other things, the gradual equalisation of the retirement age for men and women, which was perceived as an incorrect application of the constitutional principle of non-discrimination, as it did not take into account ‘women's physiological features’.

The CCR observed that cultural traditions and social realities were evolving towards ensuring real, de facto equality between the sexes. In that connection, it noted that important steps had already been taken by the legislature with a view to enhancing equality, such as allowing fathers to take parental leave, or harmonising the retirement age between men and women for certain professions, under OUG no. 67/2002 — notably, military, police, diplomatic and consular personnel. However, the CCR considered that at that time full equality could not yet be embraced by society, but could be reached within the fifteen-year time frame set by the Pension Act.

Relying on the CJEU's case-law, the CCR affirmed that imposing a different retirement age for men and women was not likely to compensate for the disadvantages and difficulties women faced in their professional careers because of their social status. It further emphasised that child-rearing should not be seen as just a woman's task, as in that regard, men and women were in a comparable situation.

The CCR thus concluded that it was necessary to change its previous approach to the issue of equalising men and women's retirement age, as not doing so would run counter to a widespread European trend in that area with which Romania had to align. In the light of the above considerations, the CCR was satisfied that the legislative decision in the Pension Act to harmonise retirement age was in line with the State's obligation to ensure equal and non-discriminatory treatment of men and women as regards retirement.

In decision no. 287 (published on 25 May 2011), the CCR dismissed an objection of unconstitutionality in respect of a provision of the Pension Act (see paragraph 24 above) which concerned the reduction of both the retirement age and the period of contribution to the pension scheme for people who worked in difficult environments.

The CCR observed that the fact that, in some situations, the retirement age was different while the period of contribution was the same for both men and women did not constitute discrimination, but rather a step forward towards reaching equality between male and female workers.

The CCR observed that, as a general rule, the law in question allowed women to retire earlier than men if they completed the period of contribution, which was identical for all workers. It pointed out that a difference in retirement age did not entail an automatic reduction of the period of contribution, as those were two different and unrelated issues.

On 5 June 2018 the CCR adopted decision no. 387/2018 concerning the constitutionality of Article 53 § 1 of the Pension Act and Article 56 § 1 (c) of the Labour Code (see, respectively, paragraphs 24 and 25 above). The decision was published in the Official Bulletin of 24 July 2018.

The CCR decided that the automatic termination of a woman's work contract when she reached retirement age constituted discrimination based on sex and placed female workers at a disadvantage.

The CCR reiterated that the conditions for acquiring the right to an old-age pension, on the one hand, and the automatic termination of a work contract when those conditions were fulfilled, on the other hand, were different matters which required different examination. It relied on its previous case-law and the case-law of the CJEU, notably the judgments in Kleist and Marshall (see paragraphs 75–77 and 71–73 below).

The CCR reiterated its previous decisions whereby it had found that the existence of different conditions for men and women for acquiring the right to an old-age pension (the Pension Act) did not constitute discrimination based on sex (decisions nos. 107, 888 and 1237, respectively in paragraphs 35–37, 39–40, and 46–49 above) in so far as women had the opportunity to continue their employment by signing a new work contract and accumulating pension rights and salary (see paragraph 37 above, in fine). It thus dismissed the complaint in so far as it concerned Article 53 § 1 of the Pension Act.

The court also examined, for the first time, the provisions of the Labour Code, and found that the automatic termination of employment at different ages for men and women constituted unjustified discrimination based on sex. It noted that termination of a work contract was triggered automatically when the relevant conditions were met, and neither the employee nor the employer could opt to continue work relations. The only option was for the parties to sign a new work contract. The consequent difference between men and women which was created was, in the CCR's view, unjustified:

The CCR concluded that the only interpretation of Article 56 of the Labour Code which would be in line with the Constitution, Directive 2006/54/EC, Directive 76/207/EEC and the CJEU's case-law was that which would allow a female employee to opt to continue her employment until she reached the retirement age set for men.

In decision no. 112 (published on 7 April 2021), the CCR declared Article 98 § 1 (d) of the Civil Service Act (see paragraph 29 above) unconstitutional.

It was contested before the CCR that the fact that female civil servants' employment contracts were automatically terminated at an earlier age than those of their male colleagues constituted discrimination based on sex.

The CCR noted the evolution of the provision in question and examined Article 98 § 1 (d) of the Civil Service Act both before and after its amendment in 2018 (see paragraphs 28 and 29 above), as well as the equivalent provisions from the Administrative Code (see paragraph 30 above).

On the merits, the CCR found as follows:

In decision no. 387/2021 (published on 5 August 2021), the CCR reaffirmed the constitutionality of Article 53 and Annex 5 of the Pension Act (see paragraph 24 above).

The relevant parts of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, in force until 14 August 2009, read as follows:

Article 1

The relevant part of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security (Directive 79/7/EEC) reads as follows:

Article 7

The relevant parts of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (which replaced Directive 76/207/EEC — see paragraph 68 above) read as follows:

Article 2 — Definitions

Article 3 — Positive action

Article 9 — Examples of discrimination

The first applicant claimed 290,132 Romanian lei (RON — approximately 59,000 euros (EUR)) in respect of pecuniary damage, an amount representing the salary benefits she would have received if she had been allowed to continue to work until reaching the retirement age set for men. She also claimed EUR 3,000 in respect of non-pecuniary damage.

The second applicant did not request any sum in respect of pecuniary or non-pecuniary damage.

The Government submitted that the first applicant's request for compensation in respect of pecuniary damage was excessive and did not take into account the sums which had already been disbursed to her in respect of her old-age pension. The Government argued that the finding of a violation could constitute sufficient just satisfaction for the non-pecuniary damage allegedly sustained by the applicants.

The Court considers that the first applicant must have sustained some pecuniary and non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found and making its assessment on an equitable basis, as is required by Article 41 of the Convention, the Court awards the first applicant EUR 7,500 to cover all heads of damage, plus any tax that may be chargeable.

Lastly, the Court notes that the second applicant did not request any compensation for pecuniary or non-pecuniary damage, and therefore makes no award in this respect.

The first applicant also claimed EUR 400 for costs and expenses incurred before the domestic courts and the Court, an amount representing her lawyer's fees.

The second applicant claimed RON 3,200 (approximately EUR 700) in respect of her lawyer's fees for the domestic proceedings, and RON 4,000 (approximately EUR 900) in respect of her lawyer's fees for the proceedings before the Court.

Both applicants appended the contracts signed with their respective lawyers and bills.

The Government contested the sums requested by the applicants and asked the Court to reimburse only those that were clearly relevant to the domestic and Court proceedings in the present case.

According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 400 to the first applicant and the sum of EUR 1,600 to the second applicant, covering costs under all heads, plus any tax that may be chargeable to the applicants.