In the framework of the practice of tax and social insurance law, Costaș, Negru & Asociații notified the National Council for Combating Discrimination in 2022, representing 8 female lawyers from the Cluj Bar.
In fact, the lawyers have each individually concluded an insurance contract for holidays and social health insurance benefits with the Cluj Health Insurance Company (pursuant to GEO no. 158/2005). Based on this contract, the petitioners in the procedure before the National Council for Combating Discrimination paid the monthly contributions, respectively obtained the maternal risk allowance (following the proof, based on supporting medical documents, of the maternal risk). Later, the lawyers were notified by the Cluj Health Insurance Company to return the indemnities collected, judging that they had been paid without due because they could only be claimed by persons employed on the basis of an individual employment contract, and not by freelancers.
Consequently, the complaint addressed to the National Council for Combating Discrimination concerned the existence of discrimination regarding the interpretation of legal texts, in the sense of the abusive elimination of one of the categories of beneficiaries, ignoring the provisions incident to the conclusion of the insurance contracts.
Decision no. 121/20.03.2024 of the Board of Directors of the National Council for Combating Discrimination was recently motivated and communicated.
Thus, in the context of the reasoning, the CNCD considered the provisions of art. to be applicable to the case. 16 and 26 of the Romanian Constitution, art. 2 and 7 of OG no. 137/2000 on the prevention and sanctioning of all forms of discrimination, art. 14 of the European Convention on Human Rights and Fundamental Freedoms, respectively the provisions of GEO no. 158/2005 on holidays and social health insurance allowances. By referring to these texts, respectively to the other texts evoked in the motivation, the object of the notification was verified, namely the fact that the lawyers were discriminated against in terms of the granting of the maternal risk allowance.
Next, the CNCD observed that in this case a special law (Law no. 72/2016 on the pension system and other social security rights of lawyers) and a general law (EOG no. 96/2003 on maternity protection at places of employment) are relevant of work). Given that the special law does not provide for maternity risk leave in the category of social insurance benefits that a lawyer could have claimed, the CNCD assessed that in this case the general law operates, in the sense that if the pregnant woman is an employee and is insured in the public health system, then she is entitled to the maternal risk allowance.
The CNCD indicated that a lawyer can be considered, in the broadest sense of the term, a “worker” within the meaning of art. 45 of the Treaty on the Functioning of the European Union, namely that a legal assistance contract concluded by a lawyer can be assimilated to an employment contract, from the perspective of the effects it generates. Decision no. was cited in this regard. 622/16.09.2020 of the CNCD by which it was found that the petitioner, a lawyer by profession, should have benefited from protection against the unilateral termination of the legal assistance contract concluded with her employer, following his official notification of her pregnancy status, based on the provisions of GEO no. 96/2003 on maternity protection at workplaces.
On this basis, the CNCD assessed that the refusal of the Cluj Health Insurance Company to grant the maternal risk allowance to the petitioners, with the reasoning that they are not “salaried”, is contrary to European law. It has been said, expressis verbis, that the provisions on maternity protection at work also apply to the liberal profession of lawyer.
Therefore, the existence of an act of discrimination provided for by art. 2 para. (1) and art. 7 lit. c) from OG no. 137/2000 and the Cluj Health Insurance Company was sanctioned with a warning. Also, the CNCD recommended the Cluj Health Insurance House to take the necessary steps to, together with the Ministry of Health and the Ministry of Labour, ensure that it transposes into the national legislation the provisions of the European legislation, in the sense of including the liberal professions in the category of insured persons who they benefit from medical leaves and maternity risk allowances.
The civil society of lawyers Costaș, Negru & Asociații ensured the legal representation of the lady lawyers only with regard to the complaint formulated, respectively in the notification to the Cluj Bar regarding the existence of discrimination.
In our opinion, we are in the presence of an extremely important decision of principle, which tends to ensure equality between different categories of taxpayers who are practically in the same position of insured and who, consequently, should have had access to the same social benefits . We note that, in fact, there is no difference between a magistrate who receives maternity risk allowance under an insurance contract and a lawyer who concludes an identical insurance contract, even if he is not an employee.
From this point, we appreciate, the interpretation of the tax litigation courts entrusted with the resolution of requests to cancel the recovery decisions issued by the Cluj Health Insurance Company should be one that complies with European law, with the consequence of the cancellation of illegal fiscal administrative acts.
Costaș, Negru & Asociații is a civil society of lawyers with offices in Cluj-Napoca, Bucharest and Arad, which offers assistance, legal representation and consultancy in several areas of practice through a team composed of 20 lawyers and consultants. Details regarding legal services and team composition can be found on the website https://www.costas-negru.ro. All rights for the materials published on the company’s website and through social networks belong to Costaș, Negru & Asociații, their reproduction being permitted only for informational purposes and with correct and complete citation of the source.
