Last Updated on December 20, 2022 by LawEuro
FOURTH SECTION
CASE OF MORARU AND MARIN v. ROMANIA
(Applications nos. 53282/18 and 31428/20)
JUDGMENT
Art 1 P12 • Prohibition of discrimination • Inability of two female civil servants who had attained the retirement age set for women to continue to work until reaching the higher retirement set for men • Blanket rule on automatic termination of women’s employment at a lower age than men constituting discrimination based on sex and perpetuating harmful stereotypes • No reasonable or objective justification for impugned measure • Narrow margin of appreciation
STRASBOURG
20 December 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Moraruand Marin v. Romania,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Gabriele Kucsko-Stadlmayer, President,
Faris Vehabović,
Iulia Antoanella Motoc,
BrankoLubarda,
Armen Harutyunyan,
Anja Seibert-Fohr,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,
Having regard to:
the applications (nos. 53282/18 and 31428/20) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Ms Liliana Moraru (“the first applicant”) and Ms Doina Marin (“the second applicant”), on 6 November 2018 and 14 July 2020 respectively;
the decision to give notice to the Romanian Government (“the Government”) of the complaint concerning allegations of discrimination based on sex due to the application of the rules on retirement age;
the parties’ observations;
Having deliberated in private on 29 November 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the inability of female civil servants who had attained the retirement age set for women to continue to work until they reached the retirement age set for men. The Government were given notice of the applicants’ complaint under Article 14 of the Convention taken together with Article 8, and under Article 1 of Protocol No. 12 to the Convention.
THE FACTS
2. The first applicant was born in 1956 and lives in Focşani. She was represented by Mr M.V. Holban, a lawyer practising in Bucharest.
3. The second applicant was born in 1958 and lives in Bucharest. She was represented by Ms M. Bănaș, a lawyer practising in Bucharest.
4. The Government were represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs.
5. The facts of the case may be summarised as follows.
I. APPLICATION NO. 53282/18 (MORARU)
6. The first applicant was a civil servant who worked as an advisor in the Galaţi branch of the National Agency for Fiscal Administration (AgenţiaNaţională de AdministrareFiscală – “the ANAF”).
7. On 7 December 2016, as she was approaching retirement age set for women at that time (in her case, 60 years and six months, see paragraph 24 below), she submitted a request to her employer expressing her wish to continue to work until she reached the retirement age set for men (65).
8. By a decision of 3 February 2017, the ANAF terminated the applicant’s employment as of 1 March 2017, on the grounds that she had reached the legal retirement age and had completed the mandatory period of contribution to the pension scheme. The applicant was notified of the decision.
9. On 14 February 2017 the applicant asked the ANAF to revoke the decision of 3 February 2017, but on 10 March 2017 the employer denied her request.
10. On 31 March 2017 the applicant lodged an action with the Vrancea County Court, seeking annulment of the decision of 3 February 2017. She relied on the provisions of the Equal Opportunity Act (see paragraph 31 below) and Directive 2006/54/EC (see paragraph 70 below), which, in her view, should have taken precedence over the domestic law. She also invoked the Istanbul Convention (see paragraph 65 below), which urges States to take legislative and other measures to prevent discrimination based on sex. In her view, setting a different retirement age for men and women constituted prohibited discrimination. She compared her situation to that examined by the Court of Justice of the European Union (CJEU) in Kleist (see paragraph 75 below) and Marshall (see paragraph 71 below), and considered that the CJEU’s findings in those cases were applicable to her situation.
11. On 27 September 2017 the Vrancea County Court found in favour of the applicant. The court observed that under Article 53 of the Pension Act and the provisions of Directive 2006/54/EC, a civil servant had a right and not an obligation to retire.
12. Deciding on an appeal lodged by the ANAF, in a final decision of 21 May 2018 the Galaţi Court of Appeal dismissed the initial application as unfounded. It considered that under the requirements of the Civil Service Act read together with those of the Pension Act (see paragraphs 24 and 28 below), a civil servant’s work contract ended automatically when he or she reached retirement age. Furthermore, relying on decision no. 1007/2008 of the Constitutional Court (“the CCR”) (see paragraph 45 below), it considered that Directive 2006/54/EC (see paragraph 70 below) did not apply to the facts of the case, which were instead governed by Directive 79/7/CEE (see paragraph 69 below). The court observed that Article 7 of Directive 79/7/CEE allowed member States to exclude from its scope the determination of retirement age for the purposes of granting old-age and retirement pensions.
13. The Court of Appeal further considered that the CJEU’s judgment in Kleist did not apply to the first applicant’s situation. It noted that the Austrian domestic law examined by the CJEU in that judgment had been found to be discriminatory because the intended aim of setting age limits for retirement – that is, promoting young workers’ access to the labour market – had not justified a different retirement age for men and women. The court simply observed that that was not the aim of the Romanian law applicable in the case.
II. APPLICATION NO.31428/20 (MARIN)
14. The applicant, a civil servant, was head of service in the Ministry of Business, Commerce and Entrepreneurship (“the Ministry”).
15. On 6 November 2018, two months before she reached the retirement age set for women at that time (in her case 61, see paragraph 24 below), she submitted a request to the Ministry expressing her wish to continue to work for an additional year, under the provisions of Article 98 § 3 of the Civil Service Act after the amendment of Law no. 188/1999 (see paragraph 29 below).
16. By a decision of 15 January 2019, the Ministry ordered the termination of the applicant’s employment as of 12 January 2019, on the grounds that she met the conditions set by law: she had attained the standard retirement age and had completed the minimum period of contribution to the pension scheme.
17. On 29 January 2019 the applicant asked the Ministry to revoke its decision, but received no answer.
18. On 28 March 2019 she lodged an action with the Bucharest County Court, seeking annulment of the Ministry’s order of 15 January 2019. She argued that the automatic termination of her work contract at a different age from that of a male colleague constituted discrimination. She considered that decision no. 387/2018 of the CCR applied to her case, given that the applicable provisions of the Civil Service Act were identical to those of the Labour Code which had been declared unconstitutional by that decision (see paragraphs 53‑58 below).
19. On 20 June 2019 the Bucharest County Court allowed the action and annulled the Ministry’s decision to terminate the applicant’s employment. The court considered that the reasoning from the CCR’s decision no. 387/2018 applied mutatis mutandis to the applicant’s situation. It thus considered that Article 98 § 3 of the Civil Service Act only came into play for an employee, male or female, who had already attained the retirement age set for men and wished to continue to work past that limit.
20. The Ministry appealed and in a final decision of 16 January 2020 the Bucharest Court of Appeal allowed the appeal and dismissed the applicant’s action. It found that the applicant could not continue to work past her retirement age, given that the employer had not approved her request.
21. The court further considered that the applicant had not requested equal treatment, that is to say, the extension of her employment relationship until she reached the legal retirement age set for men. Her request, to be allowed to continue to work for one year past retirement age, did not come within the scope of the CCR’s decision. The CCR’s decision was also not applicable to the current proceedings, given that the applicant’s situation was regulated by the Civil Service Act and not the Labour Code.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. DOMESTIC LAW
A. Retirement age
22. 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
“(1) Male workers with at least 30 years’ service and female workers with at least 25 years’ service are entitled to an old-age pension upon reaching the age of 62 for men and 57 for women.”
23. 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
“1. The old-age pension is granted to insured persons who, at the date of retirement, cumulatively meet the conditions relating to the standard retirement age and the minimum period of contribution completed in the public system.
2. The standard retirement age [shall be] 60 for women and 65 for men. Following the date of entry into force of this Law, the [current] standard retirement age of 57 for women and 62 for men shall be [gradually] increased over a period of 13 years, in accordance with the staggered schedule set out in Annex 3.
…
5. Insured persons who meet the conditions laid down in this Law for obtaining an old-age pension, with the exception of early retirement and partial early retirement, may continue working only with the consent of their employer, in accordance with the law.”
24. 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
“1. The standard retirement age [shall be] 65 for men and 63 for women. The [current] standard retirement age will be increased in accordance with the staggered schedule provided for in Annex no. 5.”
B. The Labour Code
25. Law no. 53/2003 (“the Labour Code”) prescribes the termination of an individual work contract in the following terms:
Article 56
“1. An existing individual work contract ends by law:
…
(c) on the date when both the condition of the standard age for retirement and the condition of the minimum contribution period are met; …”
26. 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:
“1. An existing individual work contract ends by law:
…
(c) on the date when both the condition of the standard age for retirement and the condition of the minimum contribution period are met, or, exceptionally, at the age of 65 for a female employee who, in writing, opts to continue with [her] individual employment contract at least 60 calendar days before the date when she reaches retirement age and [completes] the minimum contribution period for retirement; …”
27. 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.
C. Legislation on the civil service
28. 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
“Termination of the employment of civil servants … takes place under the following conditions:
(a) automatically;
(b) by the parties’ agreement;
(c) upon release from public office;
(d) upon dismissal from public office;
(e) upon resignation.”
Article 98
“(1) An existing employment [contract] is terminated automatically:
…
(d) on the date when both the condition of the standard retirement age and the condition of the minimum period of contribution to the pension scheme are fulfilled; …”
Article 117
“The provisions of this Law shall be supplemented by the provisions of labour legislation, as well as by general civil, administrative or criminal law regulations, as applicable, in so far as they do not contravene the laws concerning the civil service.”
29. 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:
“(1) An existing employment [contract] is terminated automatically:
…
(d) on the date when both the condition of the standard retirement age and the condition of the minimum period of contribution to the pension scheme are fulfilled, if the person who has the power to hire the civil servant does not apply the provisions of paragraph (3);
…
(3) On the basis of a request made two months before the date when both the condition of the standard [retirement] age and the condition of the minimum contribution period for the pension scheme are fulfilled, and with the approval of the head of the public authority or institution, the civil servant may be kept in the civil service position [he or she is already in] for a maximum of three years beyond the standard retirement age, by the work contract being extended on an annual basis.”
30. 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.
D. Equal opportunity in the workplace
31. 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)
“It is prohibited for an employer to discriminate through the use of practices which place persons of a particular sex at a disadvantage in connection with employment relationships relating to:
…
(b) the conclusion, suspension, modification and/or termination of employment …”
32. 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
“For the purposes of this emergency ordinance, the following terms and expressions shall have the following meanings:
(a) ’Occupational social security schemes’ – schemes whose purpose is to provide workers, whether employed or self-employed, in a business or group of businesses, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes, or to replace them, whether membership of such schemes is compulsory or optional.”
Article 8
“(1) Provisions which are contrary to the principle of equal treatment are those which, based on sex, directly or indirectly, in particular by reference to marital or family status, establish:
…
(f) different retirement ages;”
Article 9
“Provisions contrary to the principle of equality of treatment from the following laws … concerning the status of military personnel, … retirement benefits for military personnel, … the pension scheme for diplomatic personnel, … the police, …judges and prosecutors, … specialist ancillary personnel from courts and prosecutor’s offices, … [from] the law on the status of members of parliament … and civil servants from the parliament’s staff, and from other laws, collective bargaining agreements, company regulations or any other arrangements concerning occupational social security schemes shall be modified by 30 September 2007, in order to ensure that the principle of equal treatment will be effectively applied from 31 December 2008 at the latest, failing which those provisions shall become inapplicable.”
Article 13
“If men and women request that a flexible retirement age system be applied to them under the same conditions, this does not infringe this emergency ordinance.”
II. DECISIONS OF THE ROMANIAN CONSTITUTIONAL COURT
33. On several occasions the CCR was called upon to examine the difference in retirement age between men and women. Its opinion evolved over a series of decisions, the most important being summarised in the following paragraphs.
34. The CCR’s decisions become universally applicable on the date of their publication in the Official Bulletin.
A. Decision no. 107 of 1 November 1995 (decision no. 107)
35. The CCR’s decision no. 107 (published on 26 April 1996) concerned the constitutionality of Article8 § 1 of Law no. 3/1977 (see paragraph 22 above).
36. 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.
37. The CCR dismissed the objection in the following terms:
“… owing to the imperatives of raising and educating children, particularly in the early years, the increased burden placed on women in the household, the lack of widely accessible social and economic arrangements in the current transitional period to relieve them of these obligations, other aspects that make it difficult for them to advance professionally (maternity leave, postnatal leave, leave to care for a sick child, protective bans on working in certain environments, and so on), as well as other circumstances, women are placed at a disadvantage compared with men. Certainly, these situations will become less frequent and will disappear with time, as is happening in all European countries; this is characteristic of the development of modern societies. Today, however, most countries have different retirement ages, although the principle of gender equality is generally accepted. … In our country, these socio-professional realities are uncontested, and therefore setting a single retirement age for both men and women would mean instituting equal treatment for different situations.
It was also argued that setting an earlier retirement age for women affected their right to work enshrined in Article 38 § 1 of the Constitution. However, this argument cannot be accepted as long as, after retirement, one may simultaneously receive the old-age pension and a salary, as provided by Law no. 2/1991.”
B. Decision no. 27 of 12 March 1996 (decision no. 27)
38. On 12 March 1996 the CCR dismissed an appeal lodged against its decision no. 107 (see paragraph 35 above). The CCR reiterated:
“In terms of retirement, it seems that the only reason for the different legal treatment of women compared with men is the ‘difference in sex’. In reality, it is not the difference in sex that leads to different legal treatment, but the social situation resulting from that difference, which justifies special constitutional protection for women. Discrimination exists only where the difference in legal treatment is simply and exclusively determined by the difference in sex.”
C. Decision no. 888 of 30 November 2006 (decision no. 888)
39. 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.
40. 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:
“The court cannot but note the trend in European States to equalise conditions for access to a pension for men and women, and the recommendations made by the European Union in this regard; this, however, remains a legislative goal which the Constitutional Court cannot achieve, as it exceeds the scope of its jurisdiction, it thus remains within the exclusive purview of the legislature.”
D. Decision no. 191 of 28 February 2008 (decision no. 191)
41. 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.
42. 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.
43. 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.
44. 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.
E. Decision no. 1007 of 7 October 2008 (decision no. 1007)
45. 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 Lawno. 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.
F. Decision no. 1237 of 6 October 2010 (decision no. 1237)
46. 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”.
47. 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.
48. 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.
49. 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.
G. Decision no. 287 of 24 February 2011 (decision no. 287)
50. 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.
51. 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.
52. 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.
H. Decision no. 387 of 5 June 2018 (decision no. 387/2018)
53. 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.
54. 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.
55. 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).
56. 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.
57. 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:
“34. From this perspective, the difference in treatment between men and women as regards the age at which an individual work contract ends automatically clearly becomes less of a measure designed to support women in view of their less favourable social, family and economic conditions and, on the contrary, creates a disadvantageous situation for those women who wish to exercise their right to work on equal terms with men.
35. … The court considers that the opportunity for a woman to exercise her right to work after retirement by concluding a new individual employment contract is not a sufficient guarantee of that fundamental right. Moreover, the court finds that in such a situation, there is a restriction of the right to work based solely on the criterion of sex, which does not meet the requirements of objective and rational justification. The reasons [behind] the establishment of different treatment for men and women as regards conditions for entitlement to a pension do not retain their logical basis when they are transposed to … the automatic termination of an employment relationship, and cannot therefore be relied on as a basis for different legislation in the latter situation.”
58. 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.
I. Decision no. 112 of 23 February 2021 (decision no. 112)
59. 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.
60. 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.
61. 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).
62. On the merits, the CCR found as follows:
“The court finds that the legislative solution contained in Article 98 § 1 (d) of Law no. 188/1999, in its wording before the modification by … Law no. 156/2018, and in Article 517 [of the Administrative Code], concerning the phrase ‘standard age conditions’ as regards the termination of a female civil servant’s employment, comply with the constitutional requirements… and with those of Article 14 § 1 (c) and Article 9 of Directive 2006/54/EC …, only in so far as they do not prevent a female civil servant from requesting the continuation of her employment in exactly the same way as a male civil servant, that is, until she reaches 65 years of age.”
J. Decision no. 387 of 8 June 2021 (decision no. 387/2021)
63. 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).
III. DOMESTIC PRACTICE
64. The Vrancea County Court examined applications similar to the ones lodged by the applicants, annulled retirement decisions issued by the ANAF, and ordered the reinstatement of female employees until they reached the retirement age for men (decisions of 4November 2019, 3 June and 20 October 2020, which became final, as the Galati Court of Appeal dismissed appeals against those decisions).
IV. INTERNATIONAL MATERIAL
65. The Council of Europe Convention on preventing and combating violence against women and domestic violence (“the Istanbul Convention”) was ratified by Romania on 23 May 2016.
Article 4 – Fundamental rights, equality and non-discrimination
“1. Parties shall take the necessary legislative and other measures to promote and protect the right for everyone, particularly women, to live free from violence in both the public and the private sphere.
2 Parties condemn all forms of discrimination against women and take, without delay, the necessary legislative and other measures to prevent it, in particular by:
– embodying in their national constitutions or other appropriate legislation the principle of equality between men and women and ensuring the practical realisation of this principle;
– prohibiting discrimination against women, including through the use of sanctions, where appropriate;
– abolishing laws and practices which discriminate against women.”
V. LAW AND PRACTICE OF THE EUROPEAN UNION
66. The relevant provisions of the Treaty establishing the European Community (Nice consolidated version) (“the EC Treaty”) (see paragraphs 70 and 74 below) read as follows:
Article 141
“1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.
2. For the purpose of this article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
Equal pay without discrimination based on sex means:
(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;
(b) that pay for work at time rates shall be the same for the same job.
3. The Council, acting in accordance with the procedure referred to in Article 251, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.”
67. The relevant provisions of the Charter of Fundamental Rights of the European Union read as follows:
Article 21 – Non-discrimination
“1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.”
Article 23 – Equality between women and men
“Equality between women and men must be ensured in all areas, including employment, work and pay.
The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.”
A. Directives
68. 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
“1. The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is her[e]inafter referred to as ‘the principle of equal treatment’.
Article 2
1. For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status.
2. This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor.
3. This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.
4. This Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities in the areas referred to in Article 1 (1).
Article 3
1. Application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy.
2. To this end, Member States shall take the measures necessary to ensure that:
(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished;
(b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended;
(c) those laws, regulations and administrative provisions contrary to the principle of equal treatment when the concern for protection which originally inspired them is no longer well founded shall be revised ; and that where similar provisions are included in collective agreements labour and management shall be requested to undertake the desired revision.
…
Article 5
1. Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.”
69. 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
“1. This Directive shall be without prejudice to the right of Member States to exclude from its scope:
(a) the determination of [retirement] age for the purposes of granting old-age and retirement pensions and the possible consequences thereof for other benefits;
…”
70. 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
“1. For the purposes of this Directive, the following definitions shall apply:
(a) ’direct discrimination’: where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation;
…
(f) ’occupational social security schemes’: schemes not governed by 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 whose purpose is to provide workers, whether employees or self-employed, in an undertaking or group of undertakings, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes or to replace them, whether membership of such schemes is compulsory or optional.”
Article 3 – Positive action
“Member States may maintain or adopt measures within the meaning of Article 141(4) of the Treaty with a view to ensuring full equality in practice between men and women in working life.”
Article 9 – Examples of discrimination
“1. Provisions contrary to the principle of equal treatment shall include those based on sex, either directly or indirectly, for:
…
(f) fixing different retirement ages;
…”
B. Case-law of the Court of Justice of the European Union
1. Marshall v. Southampton and South-West Hampshire Area Health Authority (Marshall)
71. The CJEU’s judgment of 26 February 1986 in Marshall v Southampton and South-West Hampshire Area Health Authority (case no. C‑152/84, EU:C:1986:84) concerned the non-discrimination clause in Directive no. 76/207 EEC (see paragraph 68 above).
72. The appellant was dismissed from work soon after she had attained the age of 62 (that is, two years past the age when she had become entitled to a pension), notwithstanding that she had expressed her willingness to continue in her employment until she reached the age of 65. The relevant findings of the CJEU read as follows:
“7. Sections 27 (1) and 28 (1) of the Social Security Act 1975, the United Kingdom legislation governing pensions, provide that State pensions are to be granted to men from the age of 65 and to women from the age of 60. However, the legislation does not impose any obligation to retire at the age at which the State pension becomes payable. Where an employee continues in employment after that age, payment of the State pension or of the pension under an occupational pension scheme is deferred.
…
33. Article 5 (1) of Directive No 76/207 provides that application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women are to be guaranteed the same conditions without discrimination on grounds of sex.
…
38. Accordingly, the reply to be given to the third question is that a person who has been injured as a result of discriminatory dismissal may rely on the provisions of Article 6 of the Directive as against an authority of the State acting in its capacity as an employer in order to set aside a national provision which imposes limits on the amount of compensation recoverable by way of reparation.”
73. The CJEU made a distinction between dismissal because of access to social benefits and the conditions for granting an old-age and retirement pension. It thus concluded that:
“Article 5 (1) of Directive No 76/207 must be interpreted as meaning that a general policy concerning dismissal involving the dismissal of a woman solely because she has attained or passed the qualifying age for a State pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex, contrary to that directive.
Article 5 (1) of Council Directive No 76/207 of 9 February 1976, which prohibits any discrimination on grounds of sex with regard to working conditions, including the conditions governing dismissal, may be relied upon as against a State authority acting in its capacity as employer, in order to avoid the application of any national provision which does not conform to Article 5(1).”
2. Commission v. Greece
74. In the judgment of 26 March 2009 in Commission v. Greece (case no. C‑559/07, EU:C:2009:198), the CJEU considered whether the difference between men and women in terms of retirement age and the mandatory period of contribution to a pension scheme was discriminatory under the domestic law of Greece. The Greek authorities had argued that the difference in question was aimed at compensating women for the impact which their additional tasks in child-rearing, domestic work and care of the elderly had on their professional lives. The CJEU dismissed the argument and found the provision discriminatory, in the following terms:
“68. The contested provisions of the code are not such as to compensate for the disadvantages to which are exposed the careers of female civil servants, female soldiers and other female personnel to whom the code applies, by helping these women in their professional life. On the contrary, they do no more than granting female beneficiaries, and in particular the mothers, more favorable conditions than those applicable to male beneficiaries, in terms of pensionable age and the minimum service required at the time of retirement, without remedying the problems they may encounter during their professional career (see, in this respect, the judgment Griesman, cited above, point 65).
…
On those grounds, the Court (Third Chamber) hereby rules:
…
By maintaining in force the provisions providing for differences between male and female workers in retirement age and minimum service required under the Greek Code of Civil and Military Pensions instituted by Presidential Decree No. 166 /2000, of 3 July 2000, in the version applicable to the present case, the Hellenic Republic has failed to fulfill its obligations under Article 141 EC.”
3. Pensionsversicherungsanstalt v. Christine Kleist (Kleist)
75. On 18 November 2010 the CJEU issued its judgment in the case of Kleist (case no. C-356/09, EU:C:2010:703)
76. In that case, the applicant, who was a chief physician employed by the pension insurance institution in Austria, informed her employer that she intended to work until she reached the retirement age for men. Her employer, however, informed her that this was not possible and dismissed her. The CJEU was asked by the domestic court examining her case to say whether Article 3 § 1 (c) of Directive 76/207/EEC (see paragraph 68 above) had to be interpreted as meaning that national rules which, in order to promote younger persons’ access to employment, permitted a public employer to dismiss employees who had acquired the right to draw their retirement pension, when that right was acquired by women five years earlier than men, constituted discrimination on grounds of sex prohibited by that directive. The CJEU held:
“28. It should be observed at the outset that the Court has held that a general policy concerning dismissal involving the dismissal of a female employee solely because she has attained or passed the qualifying age for a retirement pension, which age is different under national legislation for men and for women, constitutes discrimination on grounds of sex, contrary to Directive 76/207/EEC (see, to this effect, Marshall, paragraph 38).”
77. The CJEU concluded:
“Article 3(1)(c) of Directive 76/207 must be interpreted as meaning that national rules which, in order to promote access of younger persons to employment, permit an employer to dismiss employees who have acquired the right to draw their retirement pension, when that right is acquired by women at an age five years younger than the age at which it is acquired by men, constitute direct discrimination on the grounds of sex prohibited by that directive.”
4. Niederösterreichische Landes-Landwirtschaftskammer v. Anneliese Kuso (Kuso)
78. In addition to the cases mentioned above (see paragraphs 71‑77 above), which were referred to in the domestic proceedings (see paragraphs 10 and 13 above), the more recent case of Kuso (case no. C‑614/11, EU:C:2013:544) is also of interest in the context of the present case.
79. In that case, the CJEU decided that the automatic termination of a work contract upon attainment of the fixed retirement age, which differed for men and women, constituted direct discrimination on grounds of sex, and the discrimination thus established was not open to objective justification. It further considered that Directive 76/207/EEC (see paragraph 68 above), which was invoked in that case, applied to work contracts signed before the State’s accession to the EU. The CJEU concluded:
“53. …Article 3(1)(c) of Directive 76/207 must be interpreted as meaning that national legislation, such as that at issue in the main proceedings, consisting of a body of employment rules which form an integral part of an employment contract concluded before the Member State concerned acceded to the European Union and under which the employment relationship is to come to an end upon attainment of the fixed retirement age, which differs depending on whether the employee is a man or a woman, constitutes discrimination prohibited by that directive where the employee concerned reaches that age after the accession.”
THE LAW
I. JOINDER OF THE APPLICATIONS
80. Having regard to the similar subject matter of the applications, the Court finds it appropriate to order their joinder (Rule 42 § 1 of the Rules of Court) and to examine them in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 12 TO THE CONVENTION
81. The applicants complained that by not being allowed to continue to work after they had reached the retirement age for women, they had been discriminated against on grounds of sex. They relied on Article 1 of Protocol No. 12 to the Convention. In addition, the second applicant also relied on Article 14 of the Convention taken together with Article 8.
82. Having regard to the substance of the applicants’ complaints, the Court, which is master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), will examine the case from the standpoint of Article 1 of Protocol No. 12 to the Convention alone (see Napotnik v. Romania, no. 33139/13, § 52, 20 October 2020).
That provision reads as follows:
“1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”
A. Admissibility
1. The Court’s jurisdiction rationemateriae
83. At the outset, the Court reiterates that as the question of applicability is an issue of its jurisdiction rationemateriae, the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage, unless there is a particular reason to join this question to the merits (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018). No such particular reason exists in the present case, and the issue of the applicability of Article 1 of Protocol No. 12 therefore falls to be examined at the admissibility stage.
84. The Court reiterates that whereas Article 14 of the Convention prohibits discrimination in the enjoyment of “the rights and freedoms set forth in [the] Convention”, Article 1 of Protocol No. 12 introduces a general prohibition of discrimination (see Napotnik, cited above, § 54, with further references).
85. It is important to note that Article 1 of Protocol No. 12 extends the scope of protection to not only “any right set forth by law”, as the text of paragraph 1 might suggest, but beyond that. This is indicated in particular by paragraph 2, which further provides that no one may be discriminated against by a public authority (ibid., § 55). According to the Explanatory Report to Protocol No. 12, the scope of protection of Article 1 of that Protocol concerns four categories of cases in particular where a person is discriminated against:
“i. in the enjoyment of any right specifically granted to an individual under national law;
ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner;
iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies);
iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).”
The Explanatory Report further clarifies the following:
“… it was considered unnecessary to specify which of these four elements are covered by the first paragraph of Article 1 and which by the second. The two paragraphs are complementary and their combined effect is that all four elements are covered by Article 1. It should also be borne in mind that the distinctions between the respective categories i-iv are not clear-cut and that domestic legal systems may have different approaches as to which case comes under which category.”
86. Therefore, in order to determine whether Article 1 of Protocol No. 12 is applicable, the Court must establish whether the applicants’ complaints fall within one of the four categories mentioned in the Explanatory Report (ibid., § 56).
87. In this connection, the Court notes that the Equal Opportunity Act guaranteed equal treatment of men and women in terms of conditions of employment and retirement (see paragraph 31 above). Moreover, the Court observes that the initial decisions not to allow the applicants to continue to work were taken by public authorities (see paragraphs 8 and 16 above) which were thus bound by the State’s obligations arising from both the domestic law and international commitments. Consequently, and for the purpose of the applicability of Article 1 of Protocol No. 12, the Court concludes that the present case falls under categories (i) and (ii) of potential discrimination envisaged by the Explanatory Report (see paragraph 85 above).
88. It follows that Article 1 of Protocol No. 12 applies to the facts of the present case.
2. Other grounds for inadmissibility
89. The Court notes that the applications are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
B. Merits
1. The parties’ observations
(a) The applicants
(i) Application no. 53282/18 (Moraru)
90. The applicant argued that the measure in question, the obligation to retire earlier than men, which had initially been designed to compensate for the factual inequality between men and women, had long been not only removed from the economic and social realities of the respondent State, but was also a form of downplaying the role of women in the field of work, in particular women in public service. The time frame set by the Government, that is, fifteen years to reach equality, constituted flagrant discrimination based on sex and had no reasonable foundation.
91. As early as 2007, the differences in retirement age between men and women had been eliminated in certain branches of public service – military, police, diplomatic and consular posts (see paragraph 47 above).
92. The applicant made reference to the CCR’s decision no. 387/2018 (see paragraphs 53‑58 above), which in her view considered that the imposition of different retirement ages was discriminatory and unconstitutional. She further noted that on the basis of that decision, which had been adopted only fifteen days after the final decision in her case, her female co-workers had had the decisions to terminate their employment annulled in court, and had thus been allowed to continue to work until the retirement age set for men.
(ii) Application no. 31428/20 (Marin)
93. The applicant argued that the Court of Appeal had incorrectly interpreted the applicable law, notably the interplay of Articles 98 and 117 of the Civil Service Act and Article 56 of the Labour Code. Furthermore, in her view, those provisions must be read in the light of decision no. 387/2018 of the CCR and the relevant EU law and practice of the CJEU.
94. She pointed out that a man in her situation would have been able to continue to work without any hindrance, and reiterated that women should be allowed to have the option to continue to work until the retirement age set for men. She considered that she had been discriminated against on account of sex.
(b) The Government
95. The Government argued that the State had the benefit of a margin of appreciation as regards setting the rhythm for unifying the retirement age for men and women and for different categories of workers, public servants included. Moreover, they reiterated that Directive 79/7/CEE (see paragraph 69 above), which had been transposed into domestic law by Law no. 263/2010, allowed States to exclude from its scope laws concerning the setting of the retirement age.
96. Consequently, the State was entitled to set the retirement age as it deemed fit. With regard to civil servants, the Civil Service Act constituted a lex specialis, as the status of a civil servant differed from that of an employee with an individual work contract signed under the Labour Code.
97. The Government reiterated that equality did not require homogeneity, and that the legislature might set separate rules in specific situations, as it had done in relation to retirement conditions, by distinguishing the situation of civil servants from that of employees with contracts regulated by the Labour Code.
98. Lastly, the Government argued that the final decisions adopted in the domestic proceedings brought by the applicants in the present case had complied with the laws applicable at the time.
2. The Court’s assessment
(a) General principles
99. Notwithstanding the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12). In applying the same term under Article 1 of Protocol No. 12, the Court therefore sees no reason to depart from the established interpretation of “discrimination” (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009).
100. It can be inferred that, in principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12.
101. In this vein, the Court reiterates that in the enjoyment of the rights and freedoms guaranteed by the Convention, Article 14 affords protection against different treatment, without objective and reasonable justification, of individuals in analogous, or relevantly similar, situations. In other words, the requirement to demonstrate an analogous position does not require that the comparator groups be identical. For the purposes of Article 14, a difference in treatment is discriminatory if it “has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised (see MollaSali v. Greece [GC], no. 20452/14, §§ 133 and 135, 19 December 2018).
102. The Court has also established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017).
103. Furthermore, Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities” between them. Indeed, the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV; Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006-VI; andGuberina v. Croatia, no. 23682/13, § 70, 22 March 2016).
104. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and the background. First and foremost, the nature of the status upon which differential treatment is based weighs heavily in determining the scope of that margin. The margin is very narrow if the distinction is based on an inherent or immutable personal characteristic such as sex (see Savickis and Others v. Latvia [GC], no. 49270/11, § 183, 9 June 2022).
105. The Court has held, albeit in the context of Article 1 of Protocol No. 1, that a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is “manifestly without reasonable foundation” (see Stec and Others, cited above, § 52, and Savickis and Others, cited above, § 184). However,even a wide margin in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination (see Savickis and Others, cited above, § 185, and Yocheva and Ganeva v.Bulgaria, nos. 18592/15 and 43863/15, § 101, 11 May 2021, with further references).
106. At the same time, however, the advancement of gender equality is today a major goal in the member States of the Council of Europe. The Court has repeatedly held that differences based exclusively on sex require “very weighty reasons”, “particularly serious reasons” or, as it is sometimes said, “particularly weighty and convincing reasons” by way of justification. In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. For example, States cannot impose traditions deriving from the idea that the man plays a predominant role and the woman a secondary role in the family (see Beeler v. Switzerland [GC], no. 78630/12, § 95, 11 October 2022, with further references, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78 in fine, Series A no. 94;ÜnalTekeli v. Turkey, no.29865/96, § 63, ECHR 2004-X (extracts);Konstantin Markin v. Russia [GC], no. 30078/06, §§126‑127, ECHR 2012 (extracts); andCarvalho Pinto de Sousa Morais v. Portugal, no. 17484/15, § 46, 25 July 2017). Consequently, where a difference in treatment is based on sex, the margin of appreciation afforded to the State is narrow (see Beeler, cited above, §§ 95-96 and 105, andEmelBoyraz v. Turkey, no. 61960/08, § 51, 2 December 2014).
(b) Application of those principles to the facts of the present case
(i) Whether there has been a difference in treatment
107. The applicants complained that they had been treated differently from men working in the same roles as them, in so far as they had been forced to retire when they had reached the retirement age set for women, which was lower than that set for men, and that their requests to continue to work past that age had been denied.
108. The Court has already found that a difference in retirement age between men and women constitutes a difference in treatment on grounds of sex (see Stec and Others, cited above, § 60). The same applies to the measure complained of in the present case namely the automatic termination of the applicant’s employment when they reached the retirement age for women.
109. In the present case, the Court notes that the first applicant asked to continue working until she reached the retirement age set for men (see paragraph 7 above), whereas the second applicant requested an extension of her employment past her retirement age (see paragraph 15 above). While the requests appear to be different in nature, the Court observes that they are no more than different paths which the applicants used in their attempts to overcome the difference in retirement age between men and women.
110. In this regard, the Court observes that in February 2017, when the first applicant reached retirement age, Article 98 of the Civil Service Act instituted a blanket rule whereby all employment relationships were terminated on the day the civil servant in question reached retirement age (see paragraph 28 above). In November 2018, when the second applicant reached that age, Article 98 § 3 of the Civil Service Act allowed the employment relationship to be extended past an employee’s retirement age, irrespective of that person’s sex (see paragraph 29 above). On both dates, however, the retirement age was different for men and women, and both applicants raised that issue in their domestic complaints (see paragraphs 10 and 18 above).
111. Moreover, the Court notes that at the time when the second applicant sought the extension of her employment (that is, on 6 November 2018, see paragraph 15 above), the situation was different for women whose individual work contracts were regulated by the Labour Code and those whose employment was regulated by the Civil Service Acts. In fact, although at that time the relevant provisions of the Labour Code and the Civil Service Act were similar, a matter raised by the second applicant in her domestic action (see paragraph 18 above), on 24 July 2018, almost four months before the second applicant made her request, the CCR’s decision no. 387/2018 had become applicable (see paragraph 53 above), and on 14 November 2018, a few days after the second applicant had made her request, the Labour Code was modified to allow women to continue to work until they reached the retirement age set for men (see paragraph 26 above). It could thus be argued that the second applicant’s situation also concerns a difference in treatment between female civil servants and female workers hired under the Labour Code (see paragraph 96 above). However, the Court considers that ultimately the central tenet of the second applicant’s complaint remains the difference in treatment of women in the workplace (see paragraph 94 above). Consequently, it will examine the complaint from the standpoint of the allegation of discrimination based on sex, while taking into account the relevant aspects of the different domestic labour regulations in force at that time.
112. For these reasons, the applicants may claim to have been treated differently from a male co‑worker in their situation with respect to the conditions for termination of their employment.
(ii) Whether the difference in treatment was justified
113. It remains to be examined whether or not the underlying difference in treatment had an objective and reasonable justification and was thus acceptable under Article 1 of Protocol No. 12.
114. The Court is called upon to assess whether not giving the applicants the choice to continue to work past the retirement age set for women to the retirement age set for men was compatible with the Convention. The situations brought to the Court’s attention were generated by the fact that the domestic law set a different retirement age for men and women (see paragraph 107 above), a matter which ultimately pertains to the social security scheme put in place by the respondent State.
115. The Government argued that setting the conditions for retirement fell within the State’s margin of appreciation (see paragraph 95 above). In this respect, the Court is mindful of the fact that the present case concerns the field of social welfare, which constitutes a complex system in which a balance must be preserved, and that accordingly, a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy (see the case-law cited in paragraph 105 above). In this context, the Court has already accepted that any adjustments of pension schemes must be carried out in a gradual, cautious and measured manner, since any other approach could endanger social peace, the foreseeability of the pension system and legal certainty (see Beeler, cited above, § 104, with further references,Andrle v. the Czech Republic, no. 6268/08, §§ 51-52, 17 February 2011, and Stec and Others, cited above, §§ 60-66).
116. However, the Court must reiterate that very weighty reasons would have to be put forward before it could regard a difference of treatment based on the ground of sex as compatible with the Convention, and that the margin of appreciation afforded to States in justifying such a difference is narrow (see Beeler, cited above, § 105, and the case-law cited in paragraph 106 above).
117. The Court observes that the present case concerns the automatic termination of the applicants’ employment once they reached the retirement age which was lower than the retirement age for men, and not their right to retire at an earlier age than men. The latter is part of the gradual adjustment of the pension scheme (see paragraph 24 above) which may be regarded as a measure designed to correct “factual inequalities” (see paragraph 103 above) and has repeatedly and consistently been upheld by the CCR (see paragraphs 35‑56 and 63). The same considerations do not apply to the obligation for the applicants to retire once they reached the retirement age set for women.
118. In fact, by instituting and maintaining a blanket rule on mandatory termination of women’s employment at a lower age than that set for men (see paragraphs 24 and 28 above) with the possibility of only a few exceptions introduced by Law no. 156/2018 (see paragraph 29-30 above), the legislature perpetuates a stereotypical view of gender roles and treats women as a homogenous group deprived of agency, one whose personal situations or desires in terms of professional life and career development as well as their alignment with those of men are completely disregarded.
119. In the present case, the applicants’ employers were public authorities whose acts engaged the State’s responsibility under the Convention. The Court cannot but observe that neither those public authorities nor the domestic courts which examined the applicants’ cases offered any explanation as to how their decisions not to allow the applicants to continue to work were compatible with the Convention or the applicable EU law. In this respect, the Court observes that in her domestic action, the first applicant explicitly argued that the termination of her employment had been contrary to the applicable EU law, and to that effect she relied on the CJEU’s judgments in Marshall and Kleist (see paragraphs 10, 71 and 75 above). The Galaţi Court of Appeal however failed to engage meaningfully with those judgments of the CJEU and to examine their ramifications highlighted by the applicant in her arguments before the court.
120. Furthermore, the Court finds it relevant that the Government did not argue that the measure sought by the applicants would entail significant costs for society or a systemic change of the pension system in place (see, mutatis mutandis, Andrle, cited above, § 59).
121. The arguments thus advanced by the Government to justify the ban on the applicants’ continuing to work beyond the retirement age for women are therefore not consistent or convincing, and consequently they cannot be taken to provide either a reasonable or objective justification for that measure.
122. In fact, the Court cannot but observe that in the meantime the situation has been remedied in the respondent State. In 2018 the CCR found that the automatic termination of a woman’s work contract when she reached the retirement age set by the Labour Code constituted discrimination based on sex and considered that the reasons that justified the establishment of different treatment for men and women as regards conditions for entitlement to a pension did not meet the requirements of objective and rational justification for the automatic termination of an employment relationship (see, notably, paragraph 35 of the CCR’s decision no. 387/2018 cited in paragraphs 53‑58 above). The Labour Code was modified soon after (see paragraph 26 above). Most importantly, in 2021 the CCR made the same finding in respect of the Civil Service Act (see paragraphs 59‑62 above). The applicants, however, could not benefit from the change in the Civil Service Act, as by that time the decisions adopted in the domestic proceedings in their cases were final (see paragraph 92 above).
123. In the light of the above, the Court concludes that not giving the applicants the option to continue to work past their retirement age and until they reached the retirement age set for men constituted discrimination based on sex which was not objectively justified or necessary in the circumstances.
124. There has accordingly been a violation of Article 1 of Protocol No. 12 to the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
125. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
126. 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.
127. The second applicant did not request any sum in respect of pecuniary or non-pecuniary damage.
128. 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.
129. 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.
130. 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.
B. Costs and expenses
131. 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.
132. 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.
133. Both applicants appended the contracts signed with their respective lawyers and bills.
134. 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.
135. 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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 1 of Protocol No. 12 to the Convention;
4. Holds
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros) to the first applicant, in respect of pecuniary and non‑pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 400 (four hundred euros) to the first applicant, plus any tax that may be chargeable to her, in respect of costs and expenses;
(iii) EUR 1,600 (one thousand six hundred euros) to the second applicant, plus any tax that may be chargeable to her, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 20 December 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Ilse Freiwirth Gabriele Kucsko-Stadlmayer
Deputy Registrar President
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