In the case of Sârbu v. Romania, the ECHR ruled on 22 December 2022 that not giving the applicants the option of continuing to work after retirement age and until they reached the retirement age set for men constituted discrimination on grounds of sex which was not objectively justified or necessary in the circumstances.
Context
- Ms. Moraru
Ms. Moraru was a civil servant working as a legal adviser in ANAF. As she was approaching the retirement age set for women at that time (60 years and 6 months), on 7 December 2016 she submitted a request to her employer asking to work until she reached the retirement age set for men, 65.
Through the decision of 3.02.2017, ANAF terminated Ms. Moraru’s employment contract as of 1.03.2017, on the grounds that she had reached the legal retirement age and had completed the mandatory period of contribution to the pension system.
Court judgments
Ms. Moraru submitted an application for annulment of the decision of 3 February 2017. She relied on the provisions of the Equal Opportunities Act (Act No 202/2002) and Directive 2006/54/EC. She also referred to the Istanbul Convention which urges states to take legislative and other measures to prevent discrimination based on sex. In the action, the applicant stated that the establishment of a different retirement age for men and women constitutes prohibited discrimination.
The Vrancea Court admitted Ms. Moraru’s action, ruling that a civil servant has a right and not an obligation to retire.
The Court of Appeal of Galati admitted the appeal filed by ANAF and consequently dismissed the action brought by Ms. Moraru as unfounded. The Court of Appeal of Galati concluded that Directive 2006/54/EC does not apply in the present case, Directive 79/7/EEC being applicable, which allows Member States to exclude from its scope the determination of the retirement age for the purposes of granting old-age and retirement pensions.
- Ms. Marin
Ms. Marin was Head of Service in the Ministry of Business, Trade and Entrepreneurship. Two months before reaching retirement age (61 years), Ms. Marin submitted a request for the right to work for an additional year.
According to the decision of 15.01.2019, the Ministry ordered the termination of the employment relationship with Ms. Marin as of 12.01.2019, on the grounds that she fulfilled the conditions provided by law: she had reached the standard retirement age and had completed the minimum period of contribution to the pension system.
Court judgments
Ms. Marin requested the annulment of the decision to terminate her employment contract, but has not received any response, and on 28.03.2019 she submitted an action requesting the annulment of the aforementioned decision.
The Bucharest Court admitted the action brought by Ms. Marin, annulled the decision to terminate her employment contract. The court ruled that Decision No 378/2018 of the Constitutional Court, which acknowledged the exception of unconstitutionality of Article 56 para. (1) lit. c) first sentence of Law no. 53/2003 – Labour Code and finds that these are constitutional to the extent that the phrase “standard age conditions” does not exclude the possibility for the woman to request the continuation of the execution of the individual employment contract, under identical conditions as the man, i.e. until the age of 65.
The Ministry appealed against the decision of the General Court, the Bucharest Court of Appeal allowed the appeal and consequently dismissed the action brought by Ms. Marin. The court ruled that Ms. Marin could not continue to work after retirement age as her application had not been approved by her employer.
The court also held that Ms. Marin had not requested equal treatment, namely the extension of her employment relationship until she reached the legal retirement age for men. Her request to be allowed to continue working for one year after retirement age did not fall within the scope of the CCR decision. Nor did the CCR decision apply to the present proceedings, since the applicant’s situation was governed by the Civil Servants Act and not by the Labour Code.
Application to the European Court of Human Rights
Ms. Moraru and Ms. Marin complained to the Court about the violation of Article 1 of Protocol 12 on the general prohibition of discrimination (“The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or
other status.”).
The European Court of Human Rights has stated that by establishing and maintaining a general rule on the mandatory termination of women’s employment at a younger age than that set for men, with the possibility of only a few exceptions introduced by Law 156/2018, the legislator perpetuates a stereotypical view of gender roles and treats women as a homogeneous group lacking autonomy, a group whose personal situations or desires in terms of professional life and career development, as well as their alignment with those of men, are completely ignored.
The Court found that not giving the applicants the option of continuing to work beyond retirement age and until they reached the retirement age set for men constituted discrimination on grounds of sex which was not objectively justified or necessary in the circumstances.
Constitutional Court Decision No 387/2018
It is important to note that in the meantime the situation has been remedied by the Constitutional Court’s decision No 387/2018 which found that the automatic termination of a woman’s employment contract upon reaching the retirement age set by the Labour Code constituted discrimination based on sex and held that the reasons which justified the establishment of different treatment for men and women in terms of the conditions for entitlement to pension do not meet the requirements of an objective and rational justification for the automatic termination of an employment relationship.
However, the Constitutional Court’s decision was reviewed by the Bucharest Court of Appeal and the Bucharest Court of Appeal, respectively, and the latter court ruled that it did not apply. Nevertheless, the ECHR found that there was discrimination against Ms. Marin.
The situation concerning the civil servant law was remedied in 2021, when the Constitutional Court admitted the exception of unconstitutionality of Article 98 para. (1) letter d) of Law No. 188/1999 on the Status of Civil Servants, in the wording prior to the amendment by Art. I, item 24 of Law No. 156/2018 amending and supplementing Law No. 188/1999 on the Status of Civil Servants, Art. 98 para. (1) letter d) of Law No. 188/1999 and found that they are constitutional to the extent that the phrase “standard age conditions” does not exclude the possibility for a woman to request the continuation of the employment relationship, under identical conditions as a man, i.e. until the age of 65.
The European Court of Human Rights has sentenced Romania for violation of Article 1 of Protocol No. 12 to the ECHR on the general prohibition of discrimination in relation to Ms. Moraru and Ms. Marin.
This article was prepared, for the Blog of Costaș, Negru & Asociații by Ms. Ariana Ciociu from Cluj Bar Association.
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