ZELCA AND OTHERS v. ROMANIA
Inadmissible
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
The applicants are all Romanian nationals. Details as to their names are indicated in the appended table. All of them are represented before the Court by the Sed Lex Constanţa Financial Trade Union (“the Union”), which has its headquarters in Constanţa. 1. The facts of the case, as submitted by the applicants, may be summarised as follows. 2. On 19 November 2008 the Union, on behalf of its members (the applicants), filed a petition against their employer, a State agency, namely the Constanţa Department of Public Finance, asking to have their entitlement to certain wage-related rights acknowledged. More specifically, relying on section 31(1) (c) and (d) of the Public Servants’ Statute (Law no. 188/1999), they asked for two allowances to be added to their basic salary, namely a grade supplement and a supplement related to their salary step. The applicants quantified each of these supplements at 25% of the basic salary. The aforesaid allowances were to be paid retroactively, starting from 1 April 2004, and correspondingly updated in line with the inflation index. The amounts were to be paid for the whole duration of the employment contract. The employer dismissed the petition as ill-founded, in so far as the legislation did not allow the payment of the allowances in question; moreover, the budget allocated to the payment of salary entitlements did not include the allowances and in any event, a regional department of public finance was not competent to decide on budgetary matters. 3. On 20 November 2008 the applicants contested that decision before the Constanţa County Court. They contended that even though, in accordance with Government Emergency Ordinance no. 92/2004, the application of the provisions granting them the rights in question had been suspended until 31 December 2006, the suspension did not mean the extinction of the rights, and in any event, the suspension was in breach of Articles 41 and 53 of the Constitution; therefore, the allowances claimed were to be paid retroactively, from 2004 onwards. The applicants also invoked Article 1 of Protocol No. 1 to the Convention, alleging that their right to obtain the allowances in issue was a “possession” within the meaning of that Article. In support of their claims and referring also to Articles 6 and 14 of the Convention and the case of Beian v. Romania (no. 1) (no. 30658/05, ECHR 2007V), the applicants invoked the case-law of other courts of appeal in Romania, which had granted the requested allowances to their fellow public servants across the country. The applicants made specific reference to judgments given in 2008 by the Botoşani County Court, the Suceava County Court and the Caraş-Severin County Court, which had all become final after being upheld on appeal by the corresponding courts of appeal. 4. On 14 April 2009 the Constanţa County Court dismissed the applicants’ claim. The court acknowledged that the two supplements claimed were provided for by law, albeit without any indication of a precise amount. In fact, none of the subsequent legal texts regulating civil servants’ salary entitlements made any reference to a method or criteria for determining the amount of each of the supplements. Therefore, even though Law no. 188/1999 expressly provided that a civil servant’s salary also included the grade supplement and the salary-step supplement, the determination of the corresponding amounts was not possible. Consequently, the court held: “For the calculation of the two allowances, as components of public servants’ salaries, explicit legal rules for the application of section 31(1) (c) and (d) are necessary, and this task belongs either to the legislative power, in the event that a law is passed, or to the executive power, in the event that a decision for the application of the law is delivered.” The court further considered that to grant the allowances in the absence of precise criteria for their calculation would mean obliging the employer to pay sums that were impossible to calculate, and thus delivering a judgment that was impossible to enforce; on the other hand, the potential calculation of those allowances by the court would mean encroaching on the powers of the administrative authorities and completely disregarding the Constitutional Court’s case-law to the effect that: “the courts do not have jurisdiction to repeal or to refuse to apply specific normative acts which they consider to be discriminatory, and thus to replace them with norms created by judicial intervention or with provisions contained in other normative acts.” With respect to the allegations raised under Article 1 of Protocol No. 1 to the Convention, the court held that the applicants could not claim to have a possession, in so far as their requests had never been allowed or confirmed by the courts in a final judgment. 5. The applicants appealed against that judgment before the Constanţa Court of Appeal, reiterating their arguments submitted before the first-instance court. They again referred to the fact that several other courts across the country had already granted the allowances in issue to colleagues of theirs, meaning that by denying them the right to also receive the allowances, the County Court had discriminated against them in relation to other public servants, in violation of Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1. In addition, they stated that the allowances were provided for by law, and that their right to receive them had been confirmed by the first-instance court, which had nonetheless decided not to grant the allowances in the absence of criteria for their calculation. The applicants further mentioned that their lack of financial means and the defendant’s omission to include the related costs in the budget could not be held against them in order to deprive them of the two allowances in question, to which they were entitled by law. When asked to comment on the judgment given on 21 September 2009 by the High Court of Cassation and Justice on an appeal in the interests of the law, in which it held that the two allowances in question could not be granted by the judiciary, the applicants’ representative stated that he was not able to give an opinion on the issue. 6. On 27 January 2010 the Constanţa Court of Appeal dismissed the applicants’ appeal. The court noted that according to the above-mentioned judgment given by the High Court of Cassation and Justice, in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step could not be granted by the judiciary. In so far as the High Court’s interpretation of the law, as set out in the decision given in the appeal in the interests of the law, was obligatory, the court was bound to follow the High Court’s ruling and thus to dismiss the applicants’ claims as ill-founded. 7. The Public Servants’ Statute entered into force on 7 January 2000, once Law no. 188/1999 had been enacted. On 1 January 2004 section 29 of the Statute was amended to provide that, starting from that date, certain allowances were to be included in the salaries of public servants: “1. For discharging their activities public servants have the right to a salary composed of the following: (a) basic salary; (b) seniority allowance; (c) grade allowance; (d) step allowance. 2. Public servants shall be granted bonuses and other salary rights, in accordance with the law. 3. The remuneration of public servants shall take place in accordance with [the criteria] prescribed in the law on the implementation of a unitary remuneration system concerning public servants.” On 19 July 2006, point (d) was amended to read “allowance corresponding to the salary step”. With effect from 1 June 2007, section 29 became section 31, while no amendments were made to the content. The application of these provisions was suspended from 2004 until 2006, firstly by Law no. 164/2004 of 15 May 2004, then by Government Emergency Ordinance no. 92/2004, enacted as Law no. 76/2005, and then by Government Ordinance no. 2/2006, enacted as Law no. 417/2006. With effect from 12 November 2009, the two allowances, namely the grade supplement and the allowance corresponding to the salary step, were abolished by Law no. 330/2009, which itself was repealed on 1 January 2011. 8. Starting with 2008, a divergent case-law emerged across the country concerning the granting of the grade supplement and of the allowance corresponding to the salary step. 9. It is why on 13 May 2009, in order to ensure the uniform interpretation and application of the law, the Prosecutor General applied to the High Court of Cassation and Justice, in accordance with the provisions of Article 329 of the Romanian Code of Civil Procedure. In the judgment delivered on 21 September 2009, the High Court confirmed the existence of a divergence in the case-law concerning the interpretation of section 31(1) (c) and (d) of Law no. 188/1999, on the granting of allowances to public servants. The High Court held that the entitlements claimed did not constitute a “possession” within the meaning of the European Convention, being only “virtual rights” in the absence of criteria for their calculation; it consequently held that: “for the uniform interpretation and application of section 31(1) (c) and (d) of Law no. 188/1999, the High Court holds that in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step cannot be granted by the judiciary.” The High Court’s interpretation of the provisions in question is binding on all the domestic courts. A decision delivered on an appeal in the interests of the law cannot alter the outcome of cases already decided.