Rumania

Traditionally, it was considered that social and economic rights are fundamentally different from civil and political rights and, as such, they cannot be included in the category of fundamental human rights.

However, in the last decades, the international community has recognized the indivisibility of human rights, namely civil, political, economic, social and cultural rights. In this sense, social and economic rights were included in the category of fundamental rights upon the adoption of the Universal Declaration of Human Rights by the UN General Assembly, in 1948.

For instance, art. 22 of the Universal Declaration of Human Rights proclaims the right to social security, art. 23 regulates everyone’s right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment and art. 24 enshrines the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Furthermore, as a result of the regulatory action that took place at the UN level, two more covenants were adopted in 1966, i.e. (i) the International Covenant on Social, Economic and Cultural Rights[1], and (ii) the International Covenant on Civil and Political Rights, which came into force in 1976[2]. The two covenants, alongside the Universal Declaration of Human Rights, form the International Bill of Human Rights[3].   

The European Union also acknowledged the indivisibility of human rights. Thus, the Charter of Fundamental Rights of the European Union[4] enshrines in Chapter IV, Solidarity, the workers' right to information and consultation within the undertaking, right of collective bargaining and action, right of access to placement services, protection in the event of unjustified dismissal, fair and just work conditions, prohibition of child labour and protection of young people at work, family and professional life, social security and social assistance, health care, access to services of global economic interest, environmental protection and consumer protection.

The inclusion of social rights in the category of fundamental rights is relevant in respect to the legal regime of guarantees that ensure both the effectiveness and the protection of the rights in question and, especially, their enforcement. In this regard, it was argued that social and economic rights, unlike civil and political rights, lack what the literature refers to as justiciability[5].

Justiciability is an attribute of civil and political rights, that implies the following:

• People who claim to be victims of violations of these rights are able to file a complaint before an independent and impartial body;
• The right to request remedies if a violation has occurred; and
• The possibility to have any remedy enforced when the duty-bearer does not comply with its duties.

Proponents of the theory according to which social and economic rights lack justiciability consider that social and economic rights, such as the right to decent housing or the right to social services are vague and progressive in nature[6]. For this reason, their content cannot be accurately determined.

Even if these features hinder and, in some cases, prevent the enforcement of social and economic rights, it should be taken into account that, in many respects, civil and political rights, e.g. property rights, the right to a fair trial, freedom of speech, are faced with the same problem.

Thus, a careful analysis of the assertions regarding the lack of justiciability of social rights reveals that the difficulty in assessing the conditions in which they apply does not constitute an absolute legal impediment in relation to their justiciability, but rather restricts the latitude limits of the guarantees attached to them.

The circumstantial nature of social rights, which emerges from economic disparities, dynamic aspects, evolutionary character etc. is not likely to impair with their essence or their affiliation to the fundamental rights category, with all the guarantees attached to them, including justiciability.

Thus, we conclude that social and economic rights belong to the category of fundamental rights. For this reason, it is necessary both to analyse the provisions related to social and economic rights contained in international treaties or conventions, and to illustrate (i) the constitutional guarantees that accompany these categories of rights and (ii) the impact of the constitutional provisions on the content of social rights.

Such an analysis is particularly useful in the current economic climate, of economic crisis, whose negative effects have impacted the social security systems, leading to the restriction and, in some cases, even the limitation of social security rights.

In this conceptual framework, it is necessary to identify both the threats to social security rights in times of economic recession, and the constitutional "levers" that can be used in order to prevent the social regress.

 

1. The constitutional guarantees of social security rights

The Romanian Constitution[7] provides expressis verbis that Romania is a social state[8] and includes social rights in the category of fundamental rights and freedoms alongside other rights and freedoms, such as the right to life, physical and mental integrity[9], freedom of conscience[10], freedom of speech[11], right to private property[12], economic freedom[13] etc. 

We consider that before presenting the constitutional provisions that enshrine the main social security rights, it is necessary to clarify the concept of "constitutional guarantees".

Thus, the concept of “constitutional guarantees” has been defined[14] as a legal measure that is characterized by the fact that (i) it protects fundamental rights against state interference and (ii) it may be amended or repealed only with the observance of special rules[15].

Ab initio, it should be noted that the fundamental law regulates non-discrimination as a general principle[16], by enshrining the equality of citizens before the law, without any privilege or discrimination.

Also, in Title II, "Rights, freedoms and duties", the Constitution refers to the main rights of social security, such as:

• The right to the protection of health (art. 34)

“(1) The right to the protection of health is guaranteed.

(2) The State shall be bound to take measures to ensure public hygiene and health.

(3) The organization of the medical care and social security system in case of sickness, accidents, maternity and recovery, the control over the exercise of medical professions and paramedical activities, as well as other measures to protect physical and mental health of a person shall be established according to the law.”

• Living standard (art. 47)

“(1) The State shall be bound to take measures of economic development and social protection, with a view of ensuring a decent living standard for its citizens.

(2) Citizens have the right to pensions, paid maternity leave, medical care in public health centres, unemployment benefits, and other forms of public or private social securities, as stipulated by the law. Citizens have the right to social assistance, according to the law.”

• Protection of children and young people (art. 49)

“(1) Children and young people shall enjoy special protection and assistance in the pursuit of their rights.

(2) The State shall grant allowances for children and benefits for the care of ill or disabled children. The law shall establish other forms of social protection for children and young people.

(3) The exploitation of minors, their employment in activities that might be harmful to their health, or morals, or might endanger their life and normal development are prohibited.

(4) Minors under the age of fifteen may not be employed for any paid labour.

(5) The public authorities are bound to contribute in order to secure the conditions for the free participation of young people in the political, social, economic, cultural and sporting life of the country.”

• Protection of disabled persons (art. 50)

“Disabled persons shall enjoy special protection. The State shall provide the accomplishment of a national policy of equal opportunities, disability prevention and treatment, so that disabled persons can effectively participate in community life, while observing the rights and duties of their parents or legal guardians.”

In this context, it should be noted that the constitutional provisions to which we referred are detailed in the content of several laws[17], governing issues such as personal and material scope of social security rights, conditions of access, amount of benefits etc.

 

2. The scope of the material and personal social security rights guaranteed by the Constitution

As we have already pointed out, the main social security rights regulated by Constitution are: (i) old age, invalidity, survivors’ benefits; (ii) sickness benefits; (iii) benefits for accidents at work and occupational diseases; (iv) unemployment benefits; (v) family benefits (maternity leave, sick child care, parental leave, child allowance).

In Romania, the social security system is regulated as a public service.

De lege lata, the administrative organization of the social security system is based on the concept of specialization of competences, which implied the establishment of a specialized agency for each category of social risk.

As an example, the administration of the public pension system and the insurance system against accidents at work and occupational diseases is entrusted to the National House of Public Pensions, the unemployment insurance system is administered by the National Agency for Employment, while the social insurance system against risks such as sickness, maternity, sick child care is administered by the Ministry of Health.

The financial organization of the social security system is founded on the principle of contribution and the principle of distribution, thus promoting the idea of solidarity between generations.

 

2.1. Old age, invalidity and survivors benefits

In Romania, the pension system is structured on three pillars[18], namely:

1. The first pillar: The public pension system (“the pay as you go system”), which is compulsory. The National House of Public Pensions administers the funds. The system is based on the principle of distribution.
2. The second Pillar is a privately managed compulsory pension system. Thus, the insurance is compulsory for all insured persons under the age of 35 years old and optional for insured persons aged between 36 to 45 years (art. 30 Para. (1) and (2) of Law no. 411/2004). Private pension companies manage the funds. The system is based on the principle of capitalization.
3. The third pillar: The voluntary pension system[19], which is formed of voluntary contributions of the insured to various pension funds. In the voluntary pension system pension, the status of insured person may be acquired by anyone obtaining income from professional activities, contributing either alone or together with the employer, as appropriate.

The public pension system is regulated by Law no. 263/2010[20], which, inter alia, contains provisions relating to (i) the principles of the public pension system; (ii) category of persons for whom the insurance is compulsory; (iii) social contributions; (iv) benefits; (v) the establishment and payment of pensions.

 

2.1.1. The principles of the public pension system

In Romania, the public pension system is based on nine principles, namely:

1. The principle of uniqueness - according to which the state organizes and guarantees the public pension system based on the same rules for all the participants in the system.
2. The principle according to which the natural and legal persons are, by law, required to participate in the public pension system, the benefits being paid as a result of the fulfilment of obligations to the public pension system.
3. The principle of contribution - under which the social insurance funds consists of contributions paid by natural or legal persons participating in the public pension system, social security benefits being acquired by reason of contributions.
4. The principle of equality - that ensures that all participants in the public pension system, taxpayers and beneficiaries, benefit from a non-discriminatory treatment (between persons that are in the same legal situation), regarding the rights and obligations under the law.
5. Principle of distribution - under which funds are redistributed for the payment of the obligations incumbent to the public system, in accordance with the provision of the law;
6. The principle of social solidarity - under which the participants in the public system assume mutual obligations and enjoy rights in order to prevent, mitigate or eliminate social risks under the law.

Example: certain periods of time, expressly regulated by the law, are taken into account when calculating the amount of the pension, even though they are not contributory periods (e.g.: the period of time in which the insured receive invalidity benefits).

7. The autonomy principle - based on independent administration of the public pension system, according to the law.
8. The pension rights are not subject to any statute of limitation.
9. The pension rights cannot be yielded.

 

2.1.2. Categories of insured persons

Romanian citizens, foreign citizens and stateless persons may acquire the insured status in the Romanian public pension system, provided that they domicile or reside in Romania[21].

Likewise, Romanian citizens, foreign citizens and stateless persons may acquire the insured status in the Romanian public pension system irrespective of whether they domicile or reside in Romania, under the terms set out in international legal instruments to which Romania is a party.

In this field, relevant provisions are contained in Regulation no. 883/2004 EC of the European Parliament and of the Council[22] on the coordination of social security systems. Thus, the rules set forth in the Regulation enable the determination of the applicable legislation to persons exercising their right to free movement within the European Union[23].

Furthermore, the coordination rules guarantee that persons moving within the European Union and their dependents and survivors retain the rights and the advantages acquired and in the course of being acquired[24]. According to art. 6 of Regulation no. 883/2004, the competent institution of a Member State whose legislation makes the acquisition, retention, duration or recovery of the right benefits conditional upon the completion of periods of insurance, employment, self-employment or residence shall, to the extent necessary, take into account periods of insurance, employment, self-employment or residence completed under the legislation of any other Member States.

Romanian citizens, foreign citizens and stateless persons who are not covered by the provisions contained in Regulation no. 883/2004 EC may acquire the insured status in the Romanian public pension system under the terms set out in international legal instruments to which Romania is a party.

Using similar wording to the one contained in Regulation no. 883/2004, Law no. 263/2010 enshrines the aggregation of periods principle and provides that[25] “when establishing the social insurance rights, the competent institution shall take into account insurance periods completed or recognized as such both in Romania and in other countries, under the terms set out in international legal instruments to which Romania is a party”.

In addition, recipients of social security benefits who do not reside in Romania are entitled to transfer the benefits in question abroad[26].

Insured persons in the Romanian public pension system are largely divided into compulsory and voluntary insured persons.

1. Compulsory insured persons[27]

 

1. Employees and persons treated as such

 

1. Employees (who concluded individual employment agreements), including soldiers;
2. Civil servants;
3. Persons who obtain a professional income, other than salaries, from intellectual property rights, or contracts/agreements concluded under the Civil Code[28].
4. Active and reserve military personnel, police officers and civil servants with special status.

2. Persons who perform their activity in elected or appointed positions within the executive, legislative or judicial branch, during their mandate or cooperative.
3. The unemployed.
4. The self-employed provided they obtain a gross income per calendar year equivalent to at least 4 times the average gross salary as determined for the state social insurance budget[29].
5. Reserve military personnel, police officers and civil servants with special status whose service relations have ceased and receive monthly benefits that are funded from the state budget.

 

2. Voluntary insured persons

Any person may voluntary insure in the public pension system, by concluding a social insurance contract with the House of Public Pensions in whose jurisdiction it resides.

 

 

II.1.3        The social insurance contribution

 

The social insurance contribution rates are differentiated according to the conditions in which the activity is performed, i.e.: (i) normal working conditions; (ii) particular conditions of employment[30]; (iii) special working conditions[31] and (iv) other conditions of employment[32].

The social insurance contribution is due at the time of enrolment in one of the situations for which insurance in the public pension system becomes compulsory or, where applicable, from the date of conclusion of the social insurance contract.

Who pays the social contributions?[33]

• Employees and persons treated as such: the contribution is split between the employer and the employee;
• The unemployed: the contribution shall be borne entirely from the unemployment insurance budget at the rate established for normal working conditions;
• The self-employed and voluntary insured persons: the social contribution is due and payable in full by them at the rate corresponding to normal working conditions;
• Reserve military personnel, police officers and civil servants with special status whose service relations: the contribution shall be borne entirely from the state budget at the rate established for normal working conditions.

II.1.4        Benefits granted in the public pension system

The main benefits granted in the public pension systems are (i) old-age pension; (ii) early retirement pension and partial early retirement pension; (iii) invalidity pension; (iv) survivor pension.

II.1.4.1         Old age pension[34]

 

The old age pension is granted to social contributors who cumulative fulfil, at the age of retirement, the standard age for retirement and the minimum value of the contribution period.

The standard age of retirement is 65 for men and 63 for women. The minimum contribution period is 15 years[35], for both men and women, and the complete contribution period[36] is 35 years, for both men and women[37].

As it can be noticed, although both the minimum and complete contribution periods are the same for men and women, the standard retirement ages varies[38].

The legal provisions that set out a different retirement age for men and women were repeatedly challenged in the Constitutional Court[39] on the grounds that (i) they violate the principle of equality before the law enshrined in art. 16 of the Constitution, and (ii) infringe EU law, namely Directive 2006/54/EC of the European Parliament and Council Directive on implementing the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation[40].

The Constitutional Court dismissed the constitutional challenges, ruling that the Constitution only covers prohibited discrimination. Per a contrario, positive discriminations that aim to achieve "distributive justice, to cancel or to diminish objective inequalities" are permitted under the Constitution.

In connection with the claims regarding the breach of the provisions contained in Directive 2006/54 EC, the Constitutional Court stated that its provisions apply only to occupational social security schemes. Furthermore, the Constitutional Court pointed out that the statutory social security schemes are covered by Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment between men and women in matters of social security[41], which allows Member States to exclude from its scope the determination of pensionable age for the purpose of granting old-age benefits and the possible consequences thereof for other benefits.

It is our contention that Law no. 263/2010, which sets out different retirement ages for men and women, violates the constitutional principle of equality before the law, especially taking into consideration the fact that both the minimum contribution period and the full contribution period are identical for men and women.

Thus, although setting different retirement ages for men and women aimed at favouring women, whose family charges are usually higher compared to men, in fact, the legislation in question creates a more disadvantageous situation for women, who are forced to start work 2 years earlier than men in order to achieve the minimum or full period of contribution.

The above-mentioned legal provisions create a direct discrimination, which must be eliminated as soon as possible, especially given the fact that (i) the Romanian legal system only regulates a compulsory retirement age (and not a statutory retirement age) and (ii) the Labour Code[42] regulates the automatic termination of the individual employment agreement, upon cumulatively fulfilling the standard age for retirement and the minimum value of the contribution period.

In conclusion, it is our contention that if the legislator’s aim had been to ensure a higher degree of protection to women, it should have adopted other measures, such as (i) reducing both the standard retirement age and the minimum, respectively the complete period of contribution or (ii) equalizing the retirement ages, meanwhile granting women the right to receive an old age pension before reaching the compulsory retirement age (e.g.: at the age of 63, while the compulsory retirement age is 65), subject to completion of the minimum contribution period.

II.1.4.2         Early retirement pension and partial early retirement pension

Early retirement pension may be granted to insured persons who shall reach the compulsory retirement age in maximum 5 years, if they have exceeded the complete period of contribution with at least 8 years[43].

The amount of the early retirement pension[44] is determined in the same manner as the old age pension. Upon fulfilling the conditions prescribed for the granting of the old age pension, the early retirement pension is automatically converted into old age pension.

Partial early retirement pension may be granted to insured persons who shall reach the compulsory retirement age in maximum 5 years, if they have completed the full period of contribution or have exceeded the complete period of contribution with less than 8 years[45].

The amount of the early retirement pension is determined in the same manner as the old age pension, which would have been due, by reducing it with 0,75%, for each month of anticipation, until the conditions for obtaining the old age pension are met[46].

Upon fulfilling the conditions prescribed for the granting of the old age pension, the partial early retirement pension is automatically converted into old age pension and the reduction to which we referred shall be removed.

The partial early retirement pension and the early retirement pension may not be cumulated with income resulting from professional activities for which the insurance is compulsory.

II.1.4.3         Invalidity benefits

 

The invalidity pension is granted to persons who have lost all or half of their working capacity due to:

1. Work accidents and occupational diseases;
2. Malignancies, schizophrenia and AIDS;
3. Common diseases;
4. Accidents not related to work.

Students and apprentices who have lost at least half of their capacity to work as a result of accidents at work or occupational diseases, which occurred during and because of the professional practice, are entitled to receive invalidity benefits.

The degree of invalidity

The invalidity pension is determined in relation to the degree of invalidity.

Thus, in relation to the degree of reduction of the working capacity, Law no. 263/2010 distinguishes between three degrees of invalidity, as follows:

1. First degree invalidity, characterized by total loss of working capacity and self caring capacity;
2. Second degree invalidity, characterized by total loss of working capacity;
3. Third degree invalidity, characterized by loss of at least 50% of the working capacity.

The invalidity pension is granted irrespective of the duration of the contribution period.

Conversely, when calculating the invalidity pension, people who have lost their working capacity as a result of common illnesses or accidents not related to work shall be granted an extra score only if they have completed a period contribution established in relation to their age.

II.1.4.4         Survivors’ pension[47]

 

The beneficiaries of the survivors’ pension are the children and the surviving spouse of the deceased. The survivors’ pension shall be granted only if the deceased was a pensioner or met the conditions for obtaining a pension.

Children are entitled to this pension:

•  Up to the age of 16;
•  If they continue their studies in an educational institution upon their completion, without exceeding the age of 26;
• Throughout the period of time in which they are disabled, if the invalidity emerged (i) before they turned 16 or (ii) during the time in which they were attending an educational institution (without exceeding the age of 26).

a) The spouse is entitled to receive a survivors’ pension under the following conditions:

• Throughout the life, upon the fulfilment of the standard retirement age, if the duration of the marriage was at least 15 years;

• Throughout the life, upon the fulfilment of the standard retirement age, if the duration of the marriage was between 10 and 15 years; the amount of the pension shall be reduced by 0,5% for each month of marriage in minus, respectively by 6% for each year in minus.
• Regardless of age, throughout the period in which they are classified in the first or second degree of invalidity, if the duration of the marriage was at least 1 year;
• Regardless of age and the duration of marriage if the supporting spouse's death was the result of an accident at work / occupational diseases and if he/she has no monthly income resulting from the performance of an activity for which the insurance is compulsory or they are less than 35% of average gross earnings;
• The surviving spouse who does not meet any of the conditions above-mentioned is entitled to a survivors’ pension for a period of six months calculated from the date the supporting spouse died, if he/she has no monthly income resulting from the performance of an activity for which the insurance is compulsory or they are less than 35% of average gross earnings;
• The surviving spouse who, at the time of the supporting’s spouse death, cares for one or more children under the age of seven years, is entitled to a survivors pension until all the children turn 7, if she/he has no monthly income resulting from the performance of an activity for which the insurance is compulsory or they are less than 35% of average gross earnings.

 

II.2         Sickness benefits. Maternity benefits. Sick childcare benefits.

 

G.E.O. 158/2005 on leave and health insurance allowances regulates sickness benefits, maternity benefits and sick childcare benefits.

II.2.1        Categories of insured persons[48]

1. Employees, civil servants and any other person who performs a dependent activity;
2. Persons who perform their activity in elected or appointed positions within the executive, legislative or judicial branch, during their mandate or cooperative.
3. The unemployed;
4. The self-employed:

1. Associates or shareholders;
2. Individual company members;
3. Individuals authorized to conduct business activities.

In addition, any person who does not fall within one of the categories above-mentioned may conclude an insurance contract with the Health Insurance Fund.

As a general rule, G.E.O. 158/2005 establishes that insured persons have the right to leave and health insurance benefits provided they reside in Romania.

Undoubtedly, this rule must be read in conjunction with Regulation                no. 883/2004[49] on the coordination of social security systems, as it provides expressis verbis[50] that “cash benefits payable under the legislation of one or more Member States or under the Regulation shall not be subject to any reduction, amendment, suspension, withdrawal or confiscation on account of the fact that the beneficiary or the members of his family reside in a Member State other than that in which the institution responsible for providing benefits is situated”.

Furthermore, indirectly, but unequivocally, G.E.O. 158/2005 recognizes the right of insured persons to benefit from leave and insurance benefits even if they do not reside in Romania.

Such a conclusion follows from the per a contrario interpretation of art. 41 b), which states that the payment of insurance benefits shall cease if the beneficiary has established its domicile in a state with which Romania has concluded a social security agreement, if according to its provisions, the benefits are paid by the other State. Per a contrario, social insurance allowances will be paid by the Romanian state, even if the beneficiary no longer resides in Romania, provided that the social security agreement contains stipulations to this end.

The above-mentioned provisions are not applicable to EU citizens.

II.2.2        Benefits

 

The insured persons are entitled to the following leaves and allowances[51]:

1. Sick leaves and allowances for temporary disability due to common illnesses or accidents outside work
2. Maternity leave and allowances;
3. Sick childcare leave and allowances;
4. Maternity risk leave and allowances.

 

II.2.3        Requirements for granting the benefits[52]

 

The insured persons are entitled to benefit from health insurance benefits if they meet the following conditions:

1. They have paid the social security contributions;
2. They have completed the minimum contribution period, which is one month in the last 12 months prior to the contingency;
3. They submit a certificate issued by the person paying the benefits, attesting the number of days of temporary disability leave taken in the last 12 months, excluding surgical emergencies or illnesses included in Group A;
4. They are present at home or at the indicated address, as appropriate, within the time prescribed by law.

 

 

II.3       Family benefits – parental leave

 

The parental leave and childcare allowance are regulated by G.E.O. 111/2010, which transposed Directive 2010/18 EU implementing the revised Framework Agreement on parental leave[53].

II.3.1        Ratione personae scope

 

G.E.O. 111/2010 shall apply to[54]:

1. Persons whose children are born starting with January, 1, 2011;
2. Persons who adopted a child or to persons whom the child was entrusted for adoption or have the child in foster care placement or emergency foster care placement; to the person who was appointed as guardian, starting with January, 1, 2011;

The rights are granted provided the applicant meets the following conditions[55]:

1. He/she is a Romanian citizen, foreign citizen or a stateless person;
2. He/she resides in Romania;
3. He/she lives in Romania and takes care of children (who also reside in Romania).

However, it should be noted that the aforementioned legal provisions do not apply to persons falling within the ratione personae scope of Regulation                     no. 883/2004 on the coordination of social security systems[56], since, as we have pointed out, “cash benefits payable under the legislation of one or more Member States or under the Regulation shall not be subject to any reduction, amendment, suspension, withdrawal or confiscation on account of the fact that the beneficiary or the members of his family reside in a Member State other than that in which the institution responsible for providing benefits is situated”.

II.3.2        Requirements for granting benefits

 

In order to qualify for parental leave and allowance, applicants must have obtained in the last year preceding the birth (or adoption) of the child income[57] subject to income tax, for a period of 12 months[58].

In this context, it should be noted that the childcare allowance falls into the category of non-contributory social security benefits, as there is no requirement for the payment of contributions to one of the social security systems.

Our contention, according to which the parental leave allowance falls into the category of non-contributory social insurance benefits, is based on the fact that family benefits are accredited at both international[59], and regional level[60] as social insurance rights that aim at covering risks arising from the increase of costs related to child rearing. Moreover, the purpose of granting parental leave allowance is to replace professional income and not to provide minimum subsistence income to its beneficiaries. Such a conclusion follows from the fact that (i) the childcare allowance is granted irrespective of the applicant’s income; (ii) the amount of the childcare allowance is determined by reference to the beneficiary’s net income.

II.3.3        Types of benefits

 

The main benefits provided under G.E.O. 111/2010 are the following [61]:

1. Parental leave for rearing the child up to one year, with pay;
2. Parental leave for rearing the child up to two years, with pay;
3. Parental leave for rearing the child with disabilities up to three years, with pay;
4. Parental leave for rearing the child aged between one and two years, without pay;
5. Parental leave for rearing the child with disabilities up to seven years, with pay.

 

II.4       Family benefits – States allowance for children

 

Law no. 61/1993 regulates the state allowance for children.

Under Romanian law, the state allowance for children is granted to all children aged up to 18 years and young people who have reached the age of 18, provided they attend high school or vocational courses, until graduation.

Both foreigners’ children and stateless persons’ children are entitled to receive state allowance, provided they reside in Romania.

II.5       Benefits in respect of accidents at work and occupational diseases

 

Law no. 346/2002[62] regulates the insurance for work accidents and occupational diseases.

Insurance for work accidents and occupational diseases is a personal insurance, part of the social insurance system, guaranteed by the state. It includes specific relations that provide social protection against the following categories of occupational risks: loss, reduction of work capacity and death as consequence of occupational accidents and diseases[63].

II.5.1        The principles of the insurance system for accidents at work and occupational diseases

The insurance system for accidents at work and occupational diseases is founded upon the following principles:

1. The insurance is compulsory for each employer that uses work force with individual employment agreement.
2. The occupational risk is borne by those who benefit from the result of the work performed.
3. The insurance fund to occupational accidents and diseases is made up of differentiated contributions borne by employers, in accordance with the occupational risks.
4. Enhancing the role of prevention activities, in order to reduce the number of accidents at work and occupational diseases.
5. The principle of social solidarity - under which the participants in the insurance system for accidents at work and occupational diseases assume mutual obligations and enjoy rights in order to prevent, mitigate or eliminate social risks under the law.
6. Ensuring a non-discriminatory treatment for the beneficiaries of the rights provided by law.
7. Ensuring transparency in the use of funds.
8. The distribution of funds in compliance with the obligations incumbent to the insurance system for accidents and work and occupational diseases.

 

 

 

II.5.2        Categories of insured persons

 

Insured persons in the Romanian insurance system for accidents at work and occupational diseases are largely divided into compulsory and voluntary insured persons.

Compulsory insured persons [64]:

 

1. Employees (who concluded individual employment agreements), including civil servants;
2. Persons who perform their activity in elected or appointed positions within the executive, legislative or judicial branch, during their mandate or cooperative;
3. The unemployed, during the vocational training;
4. Students and apprentices, during the vocational practice;
5. Romanian employees who work abroad, upon the instruction of Romanian employers;
6. Foreign citizens or stateless persons, who perform work on behalf of Romanian employers, provided they reside in Romania[65].

 

 

Voluntary insured persons

• Any person (e.g.: administrators or managers who have concluded management agreements; members of individual or family enterprises; sole traders; persons employed in international institutions if they are not their employees; other persons that obtain professional income) may voluntary insure in the public pension system, by concluding a social insurance contract with the House of Public Pensions in whose jurisdiction it resides.

 

The insurance contract is concluded between[66] (i) the employer and the insurer; or between (ii) the insured and the insurer in the case of voluntary insured persons.

The insured status is acquired: (i) when the individual employment agreement is concluded; (ii) at the date on which civil servants are appointed into office; (iii) when the mandate is validated for persons who perform their activity in elected positions; (iv) at the date on which the appointment in positions within the executive, legislative or judicial branch takes place; (v) at the beginning of the professional practice for the unemployed, apprentices and students; (vi) when the individual insurance contract is concluded.

II.5.3        The contribution rate

 

The insurance contribution is owed by[67]:

1. Employers, for the compulsory insured persons, with the exception of students, apprentices and the unemployed;
2. The voluntary insured persons;
3. The National Employment Agency, from the unemployment insurance budget, for the unemployed.

In the case of the compulsory insured persons, employers pay the contribution rate. The amount of the contribution varies depending on the tariff and class of risk[68].  Thus, the risk quote is situated between 0.15-0,85% of the total monthly salary fund.

In the case of the unemployed, the contribution rate is paid from the unemployment insurance budget. The contribution rate is 1%, applied to the rights granted during the vocational training.

In the case of the voluntary insured persons, they pay the contribution. The contribution rate is 1%, applied to the monthly-insured income. The insured monthly income cannot be situated below the gross minimum wage threshold[69].

 

II.5.4        Types of benefits

 

The persons insured for work accidents and occupational diseases are entitled, irrespective of their contribution period, to the following cash or in kind benefits[70]:

1. Medical rehabilitation and recovery of work capacity;
2. Rehabilitation and professional reconversion;
3. Benefits for temporary disability;
4. Benefits for temporary change of the work place;
5. Benefits for the reduced work time;
6. Benefits in case of death;
7. Reimbursement of expenses;
8. Compensation allocated to persons whose integrity is permanently affected and suffered a loss of work capacity between 20-50%.

 

II.6       Unemployment benefits

 

Law no. 76/2002 regarding the unemployment insurance system and employment stimulation regulates the unemployment benefits.

 

Law no. 76/2002 aims to:

• Provide compensation for the loss of income;

• Prevent unemployment and combat its negative social effects;
• Enforce the non-discrimination principle;
• Protect the unemployed;
• Increase labour mobility.

II.6.1        Categories of insured persons[71]:

 

• Romanian citizens, who are employed or obtain professional income in Romania, except for those who are retired;
• Romanian citizens who work abroad;
• Foreign citizens or stateless persons, who perform work on behalf of Romanian employers, provided they reside in Romania.

 

1. Compulsory insured persons[72]

 

1. Employees (who concluded individual employment agreements), except for those who are retired;
2. Civil servants;
3. Persons who perform their activity in elected or appointed positions within the executive, legislative or judicial branch, during their mandate or cooperative;
4. Other persons that obtain an income from conducting a professional activity, if, under the law, they are required to pay contributions to the unemployment insurance budget.

The above-mentioned legal provisions must be read in conjunction with the provisions contained in the Fiscal Code[73], which define the concept of “dependent activity”. According to the Fiscal Code, if an activity is reconsidered as dependent, the income tax and social security contributions, including the contribution to the unemployment insurance budget, shall be recalculated. The payer and the recipient of the income owe these amounts jointly.

 

2. Voluntary insured persons[74]

 

1. Associates or shareholders;
2. Administrators or managers who have concluded management agreements;
3. Members of individual or family enterprises;
4. Sole traders;
5. Romanian citizens, who work abroad;
6. Other persons, who obtain an income from conducting a professional activity.

II.6.2        Requirements for granting the benefits

 

The recipients of the unemployment benefit are the unemployed and persons treated as such.

In order to receive unemployment benefits, the unemployed must meet the following conditions[75]:

• To have completed a minimum contribution period of 12 months during the 24 months preceding the date in which the application was registered;
• They do not obtain income or, as a result of the performance of authorized activities, they obtain income lower than the reference social index;
• They are not entitled to receive and old-age pension;
• They are registered at the Territorial Employment Agency in whose jurisdiction they reside.

 

II.6.2.1         Transferring the unemployment benefits in other countries[76].

 

The contribution period consists of periods in which the contributions were due to both the unemployment insurance budget in Romania and in other countries, as stipulated by international agreements and conventions to which Romania is a party.

The unemployment benefits granted in accordance with the Romanian law may be transferred to other countries in which the insured resides, with the observance of the conditions prescribed in international agreements and conventions to which Romania is a party.

An unemployed person may retain his entitlements to unemployment benefits in cash if he travels to another EU country in order to seek work, under the conditions laid down by Regulation no. 883/2005 EC on the coordination of social security systems[77].

Likewise, an unemployed person may retain his entitlements to unemployment benefits in cash if he travels to Romania from another EU country in order to seek work, under the conditions laid down by Regulation no. 883/2005 EC on the coordination of social security systems[78].

 

 

As we have pointed out, the Romanian Constitution includes social rights in the category of fundamental rights and freedoms and provides that the State is bound to take measures of economic development and social protection, with a view of ensuring a decent living standard for its citizens.

Thus, the Constitution enshrines certain rights, such as the right to health care, pensions, paid maternity leave, health care, unemployment benefits etc.

The regulation of the above-mentioned social rights in the Constitution has its advantages, as it protects fundamental rights against state interference and, at the same time, requires the legislature to set up the necessary framework for their exercise.

In this conceptual framework, it is worth mentioning that, as in times of economic recession, States tend towards reducing social security rights, the existence of constitutional levers, aimed at restricting the adoption of such measures, appears to be indispensable.

As an example, we mention that the Constitutional Court has ruled[79] that the reduction of social rights, which are not covered by the fundamental law, is constitutional.

By contrast, the Constitutional Court stated that because the right to pension is regulated by the Constitution, the legislature has the obligation, inter alia, to refrain from any conduct likely to restrict it[80].

 

 

During the last major economic crisis, the constitutional levers to which we made reference in the previous sections proved to be insufficient for effectively protecting the social security rights against state interference. 

Therefore, a series of regulations were adopted since 2009. These laws mainly aimed at reducing budget expenditures and fighting against “the economic crisis, a global phenomenon that affects the structure of the Romanian economy” [81].

The following regulations reinforce our statements:

• Law no. 329/2009[82], which banned the aggregation of pensions that exceed the gross average wage in the economy - used to support the state social insurance budget and approved by the law on the state social insurance budget – with wages or other income equivalent to salaries paid from public funds.  

According to the same law, in the event pensioners aggregate their pensions, which exceed the gross average wage in the economy with wages or other income equivalent to salaries from exercising certain activities, they must choose in writing between suspending the pension payments during the exercise of their activity and terminating the employment relationship, the services or the act of appointment within 15 days since the occurrence of the respective situation. 

By failing to comply with this legal obligation, the employment relationships established under the individual contract of employment or the services resulting from the act of appointment are terminated ope legis[83]. 

• Law no. 118/2010 concerning certain measures for the restoration of the budgetary balance[84], which, in 2010, inter alia:
  • Reduced by 25% several wages of the staff of public authorities and institutions, regardless of their method of financing;
  • Reduced by 15% the amount of unemployment benefits and the monthly cash benefits paid from the budget of unemployment insurance fund;
  • Reduced by 15% the amount of childcare benefits.

Also, in the original version, the regulation provided that the amount of pensions had to be reduced by 15% in 2010. However, the Romanian Constitutional Court deemed this provision unconstitutional[85].

• Emergency Government Ordinance no. 108/2010 amending and supplementing Law no. 76/2002 regarding the unemployment insurance system and the stimulation of employment[86], which amended the index in accordance to which the amount of unemployment benefits were calculated.

Therefore, prior to amending Law no. 76/2002 by Emergency Government Ordinance no. 108/2010, the amount of unemployment benefits was established by relating to the minimum gross wage per country (i.e. 75% of the minimum gross wage in the Romanian economy). De lege lata, the amount of unemployment benefits is calculated by observing the social reference index[87], which was established at approximately 60% of the minimum gross wage per country.

In accordance with the statement of reasons attached to Emergency Government Ordinance no. 108/2010, the respective regulation was adopted because, during the economic crisis, the unemployment insurance fund revenues were maintained at a low level. Thus, an increase in the minimum gross wage per country determined a raise of the unemployment benefits. This would create difficulties in providing the necessary financial resources for the implementation of programs financed from the unemployment insurance fund.

We believe that, since the unemployment benefit is a social insurance benefit that, as a rule, is based on the principle of contribution, it is inadmissible to link its amount to an index used for measuring social aid – subjective right which is regulated by social assistance laws and not by social insurance regulations.

It is widely known that social insurance benefits, which are financed from professional contributions, replace the professional income and are usually based on a rule of proportionality by referring to its value.

• Law no. 119/2010 concerning certain measures in the field of pensions[88], which established that service pensions (that were composed of two parts, a contributory part and a non-contributory part, awarded as a supplement by the government) shall be integrated into the public pension system and recalculated in accordance with the retirement age, the duration and amount of contributions.

These regulations were challenged on several occasions in the Constitutional Court, which ascertained their constitutionality in each case, by ruling that (i) legal measures that reduced social security rights do not affect any fundamental rights; or (ii) limitations to social security rights were adopted by observing the provisions of article 53 of the Romanian Constitution, which establishes that the exercise of certain rights or freedoms may be restricted under certain requirements[89].

It should be noted that article 53 of the Romanian Constitution provides that the restriction of exercising certain rights or freedoms may occur only by observing the following requirements:

• The respective limitation must be regulated by law and is necessary in a democratic society;
• The limitation is necessary for (i) the defence of national security, of public order, health or morals, of the citizens’ rights and freedoms; (ii) conducting a criminal investigation; (iii) preventing the consequences of a natural calamity, disaster, or an extremely severe catastrophe;
• The measure shall be proportional to the situation having caused it;
• The measure shall be applied without discrimination and without infringing on the existence of such right or freedom, which means that the restriction of exercising certain rights or freedoms shall occur within a time limit because otherwise it would affect the very existence of such right or freedom.

 

In the following sections we shall briefly present the case law of the Romanian Constitutional Court in this field, by emphasizing both various criticism of unconstitutionality referring to regulations that restricted social security rights and the reasoning of the Court, which rejected the respective constitutional challenges.

 

IV.1                      Supressing the aggregation of pensions with professional income

 

Ab initio, as regards the possibility of aggregating pensions with professional income, Law no. 263/2010 on the unified public pension system (which is the common regulation in this field) establishes[90] that „in the public pension system, the following categories of persons may cumulate their pension with the income arising from situations where insurance is mandatory by law: old age pensioners; blind persons; pensioners with level III disabilities [91], as well as children which obtain survivor’s benefits, which have level III disabilities”.

Consequently, the aggregation of old age pensions age with wages or other types of income is legal.

As pointed out, Law no. 329/2009[92] banned the aggregation of pensions that exceed the gross average wage in the economy[93] with wages or other income equivalent to salaries paid from public funds.  

From the analysis of the above mentioned legal provisions we observe the fact that they establish a limitation of their incidence, namely (i) in terms of their scope, they only apply to the aggregation of pensions with professional income paid from public funds and (ii) in terms of the pension’s amount, the prohibition of cumulating the pension with professional income occurs only if the amount of net pension exceeds the average gross wage in the economy[94]. 

 Law no. 329/2009 was criticised on grounds that it violates the constitutional right to work, the right to a decent living standard, the non-discrimination rule, the non-retroactivity principle, as well as the government duty to ensure the necessary background to increase the quality of life.

The Constitutional Court[95], by referring to its former case law, held that, ”No constitutional provision prevents the lawmaker from suppressing the aggregation of pensions with wages, provided that such measure applies equally to all citizens and any differences in legal treatment [...] have a lawful reason".[96] Furthermore, ”As regards the determination of the net pension level which may be aggregated with the average gross wage in the economy used to support the state social insurance budget and approved by the social insurance budget law, the Court states that it complies with the requirements of objectivity (it is expressly provided by law, foreseeable and determinable) and reasonableness (the level of the average gross wage in the economy is a fair and balanced option) demanded by the principle of non-discrimination. As regards proportionality between the aim pursued through the unequal treatment and the means employed, it is held that, according to the explanatory memorandum that led to the adoption of this regulation, its purpose is to fight against “the economic crisis, a global phenomenon that affects the structure of the Romanian economy”. Financial data, as well as forecasts made by authorities in the field, outline “the image of a deep economic crisis that might endanger Romania’s economic stability and, thereby, the public order and national security”.  This situation called for “exceptional measures that, by their efficiency and timeliness of application, may help to reduce its negative effects and create the prerequisites of an economic recovery[97]".

Also, the Constitutional Court stated that the measure is proportionate to the aim pursued, i.e. relieve the state budget from an unsustainable tax burden. Moreover, according to the Constitutional Court, the lawmaker is entitled to establish a threshold value of the pension amount from where the aggregation of net pensions with professional income is forbidden. 

In this context, we note that in Case of Panfile vs. Romania[98], the European Court of Human Rights stated that the restrictions regulated by Law no. 329/2009 are not to be regarded as a “deprivation of possessions”, but rather as an interference with the persons’ right to the peaceful enjoyment of their possessions. 

Furthermore, the European Court of the Human Rights referred to the reasoning made by the Constitutional Court in Decision no. 1414/2009. The European Court held that the impugned interference was prescribed by law and pursued a legitimate aim of public interest, i.e. to rationalise public expenditure. 

Moreover, ECtHR concluded that Law no. 329/2009 strikes a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights because, in the respective case, “the claimant did not bear an individual and excessive burden”.

However, in this conceptual framework, one has to bear in mind the fact that the decision rendered by the European Court of Human Rights was based solely on the analysis of the compatibility of Law no. 329/2009 with article 16 of the Convention and the first Protocol to the European Convention on Human Rights[99] , as the right to work is not guaranteed by the Convention.

However, from our point of view, these legal provisions flagrantly violate the right to work enshrined in article 41 of the Romanian Constitution, which establishes expressis verbis that „The right to work shall not be restricted. Everyone has a free choice of his/her profession, trade or occupation, as well as work place.”

Thus, indirectly, but unequivocally, Law no. 329/2009 restricts the right to work of pensioners that receive net pensions which exceed the average gross wage in the economy, as they are forced to suspend the payment of their pensions during the exercise of professional activities in the public sector.

Therefore, we believe that the Constitutional Court should either (i) have established the unconstitutionality of Law no. 329/2009 on grounds that it violates the right to work, or (ii) have applied article 53 of the Romanian Constitution which, as shown above, allows the restriction of certain fundamental rights or freedoms by observing certain requirements. We mention the requirement referring to the fact that this restriction shall be limited in time because otherwise it would infringe on the very existence of such right or freedom.  

In our opinion, given that almost 4 years have passed since the adoption of Law no. 329/2009, a revaluation of the legal provisions that ban the aggregation of pensions with professional income in the public sector should take place.

As an example, we mention that in Lithuania, the Constitutional Court[100] stated that the fundamental law forbids the lawmaker to establish that the exercise of a constitutional right, i.e. right to pension, limits the exercise of another constitutional right, i.e. right to work.  Therefore, the Constitutional Court ruled that the legal regulation under which the pensioners are forced to give up pension payments while exercising a professional activity is unconstitutional because it violates the right to work[101].

Moreover, the Lithuanian Constitutional Court[102] listed a series of rules to be observed by the lawmaker when adopting measures aimed at restricting social rights during the economic crisis, namely:

• Restrictions on the exercise of social rights shall be limited in time and, in any case, they cannot exceed one budget year. Therefore, the regulations which limit the exercise of social rights are to be yearly reassessed in order to determine whether the economic situation requires the continuation of the respective measures;
• Restricting social rights shall be a last resort measure, which may be adopted only after having exhausted all other means of rationalising budgetary expenditures. Also, this kind of measures shall observe the following principles: non-discrimination, proportionality, protection of legitimate expectations, social solidarity, foreseeability etc.;
• The reduction of pensions shall be made only under extremely difficult economic situations, respectively only when there is an official statement which ascertains that the economy is severely affected on the long run, due to which the state is unable to perform its undertaken obligations;
• The lawmaker is not allowed to cut by a higher percentage the amount of pensions paid to persons which exercise their right to work during the period when they receive such pensions;
• Persons whose pensions were reduced are entitled to damages.

IV.2                      The Reduction of the unemployment benefit and allowance for childcare

 

Inter alia, budgetary wages, unemployment benefits (as well as other pecuniary rights which were monthly awarded from the unemployment insurance budget) and allowances for childcare were reduced by Law no. 118/2010 concerning certain measures for the restoration of the budgetary balance[103].

Also, the draft law regarding certain measures for the restoration of the budgetary balance provided a reduction in the amount of pensions by 15% in 2010, but the Constitutional Court ruled that this measure was not constitutional.

This regulation was also unsuccessfully challenged in the Constitutional Court[104] on grounds that it violates art. 1 of the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms, by imposing excessive and disproportionate burden borne by individuals without maintaining a fair balance between the general interest and the individual protection of fundamental rights.

The Constitutional Court held that the restriction provided by the criticised regulation is necessary in a democratic society, in order to maintain democracy.

As regards the proportionality of the situation that caused the restriction, the Constitutional Court stated that the means employed (reducing the wage/unemployment benefits/childcare allowance) were proportional in respect to the legitimate pursued aim (reducing the budgetary expenditures/rebalancing the state budget). Therefore, the regulation maintained a fair balance between the demands of the general interest of the community and the protection of the individual fundamental rights. 

Moreover, the Constitutional Court held that the legislative measure in question was applied without discrimination and without prejudice to the substance of the law, since the requirements provided in article 53 of the Constitution, as presented above, are met. Thus, the measure of reducing wages/unemployment benefits/childcare allowance is temporary, precisely not to affect the substance of the protected constitutional right. Consequently, the restriction on the exercise of a right shall last as long as the threat that caused the respective limitation remains. 

As presented above, the draft law regarding certain measures for the restoration of the budgetary balance provided a cut in the amount of pensions by 15% in 2010.

The Constitutional Court decided that these legal provisions were not constitutional, by explaining that the right to pension is a fundamental right regulated by the Romanian Constitution.

The right to pension is pre-established during the active time frame of the individual who contributes to the public social insurance budget. Correlatively, the government shall pay the pension which has an amount governed by the principle of contribution.

According to the Constitutional Court, the amount of pension determined by observing the principle of contribution is an acquired right. Consequently, a reduction in the pensions’ amount may not be accepted even temporarily – as such a situation would affect the very substance of the right in question. 

It is odd that in this case the Constitutional Court based its ruling on the acquired right status of pension rights, pursuant to its contributory nature, whereas in the case of unemployment benefits, which are also founded on the principle of contribution, it reached a different conclusion, resorting to other principles laid down in the Constitution (without a doubt, we are referring to unemployment benefits in payment).

IV.3     The Reduction of the unemployment benefits

Emergency Government Ordinance no. 108/2010 amending and supplementing Law no. 76/2002 regarding the unemployment insurance system and the stimulation of employment[105] modified the index used to calculate the unemployment benefits. 

Therefore, as we pointed out, prior to the amendment of Law no. 76/2002 by Emergency Government Ordinance no. 108/2010, the amount of unemployment benefits was calculated by referring to the amount of the minimum gross wage per country (more precisely, 75% of the minimum gross wage in Romania).

Currently, the amount of unemployment benefits is calculated by considering the social reference index[106], which represents approximately 60% of the minimum gross wage per country. Consequently, this measure diminished the amount of unemployment benefits.

Emergency Government Ordinance no. 108/2010 was adopted because an increase in the minimum gross wage would have created difficulties in providing the resources needed to pay the benefits financed from the unemployment insurance budget. 

In this conceptual framework, we restate the fact that article 47 paragraph (2) of the Constitution establishes the citizens’ fundamental right to unemployment benefits, which means that this right may only be restricted by observing article 53 of the Romanian Constitution. However, one of the requirements provided by article 53 refers to the temporary nature of the measures restricting fundamental rights.

However, the Emergency Government Ordinance no. 108/2010 did not introduce a temporary measure. This is proved by the fact that its provisions are still in force.

Therefore, we believe that it is necessary to repeal Emergency Government Ordinance no. 108/2010 and, consequently, calculate the unemployment benefits in relation to the minimum gross wage in the country, especially given the fact that the unemployment benefits comply with the principle of contribution.

IV.4     Reduction of Special Pensions

 

Law no. 119/2010 concerning certain measures in the field of pensions[107] established that the service pensions (which were comprised of two parts – a contributory part and, respectively, a non-contributory part that was supplemented by the government) shall be integrated into the public pension system and recalculated by considering the retirement age, the duration and amount of contributions.

The above-mentioned legal provisions were challenged on several occasions in the Constitutional Court[108], which ascertained their constitutionality.

The authors of the unconstitutionality exception argued the following:

1. Law no. 119/2010 breaches the non-retroactivity principle enshrined in art. 15 of the Constitution;

In support of this view, it was argued that pensions in payment are acquired rights and changing their legal status represents a flagrant violation of the constitutional provision (namely art. 15).

Moreover, according to the Constitutional Court, "a new regulation shall not prejudice the amount of pensions previously established, which are acquired rights”[109].

1. The reduction or discontinuation of pension entitlements constitutes an interference with the right to peaceful enjoyment of possessions, as prescribed in Article 1 of Protocol 1 to the European Convention on Human Rights.

According to the ECtHR, a “claim” concerning a pension can constitute a “possession” within the meaning of Article 1 of Protocol No. 1 where it has a sufficient basis in national law, for example where it is confirmed by a final court judgment[110].

•  

2. Law no. 119/2010 infringes art. 47 Para 1 of the Romanian Constitution, which regulates the citizens’ right to a decent standard of living.

The State is bound to take measures of economic development and social protection with a view of ensuring a decent living standard for its citizens. Inter alia, this objective can be achieved through the implementation of social protection measures and by guaranteeing the right to pension.

Furthermore, Law no. 119/2010, which regulated the reduction of special pensions, infringes the principle concerning the protection of legitimate expectations.

3. Law no. 119/2010 violates art. 53 of the Constitution, as the reasons underlying the decision to restrict the right to a pension have not been fully disclosed.

Thus, the arguments relied upon in order to justify the adoption of the austerity measures, i.e. the reduction of public expenditures are superfluous and "expressed pro causa".

In a nutshell, the above-mentioned reasons cannot lead to the conclusion that the reduction of pensions (i) can effectively contribute to the balancing of the state budget and that (ii) all other means of rationalising budgetary expenditures have been exhausted.

 

The Constitutional Court emphasized that the special pensions were composed of two parts, a contributory part and a non-contributory part, awarded as a supplement by the government, constituting a "partial compensation for the inconveniences resulting from the rigor of special statutes’[112].

Furthermore, it was argued that since the supplement to which we referred is not based on the insured's contribution, the constitutional provisions do not cover it.

Therefore, in the view of the Constitutional Court, the granting of special pensions constitutes an obligation of means (assumed by the State), whose fulfilment is subject to variable factors, such as the financial resources available to the State.

For these reasons, it was held that only the benefits already paid constitute acquired rights.

Also, the Constitutional Court stated that the principle of non-retroactivity has not been infringed. In support of this view, the Constitutional Court referred to its jurisprudence according to which “a law is not retroactive if (i) it amends for the future a legal situation that arose before its adoption; when (ii) it supresses for the future the legal effects of a situation that arose under the repealed law.”

Finally, even though the Constitutional Court expressly acknowledged the fact that service pensions are objectively and reasonably justified, it stated that their reduction was necessary in order to (i) reform the public pension system and eliminate inequities, as well as to (ii) combat the economic crisis. 

In what concerns the claim according to which the pension cuts infringe the legitimate expectations principle, the Constitutional Court argued that the Romanian Constitution does not regulate the principle in question. 

Moreover, while analysing complaints of unconstitutionality regarding the violation of art. 53 of the Constitution, the Constitutional Court stated that “they are irrelevant because the right to pension concerns the pension acquired by considering the general retirement system; thus, the right to benefit from a special pension is no enshrined in the Constitution.”

Subsequently, the application of legal provisions concerning the recalculation of special pensions resulted in an inconsistent practice. For this reason, the Romanian General Attorney filed a referral in the interest of the law[113].

Thus, several courts admitted the appeals filed by persons who were entitled to receive service pensions and, consequently, quashed the decisions to recalculate the pensions. 

While drafting these decisions, the courts examined the compatibility of domestic law with article 1 of the Additional Protocol no. 1 to the Convention and article 14 of the European Convention on Human Rights, as interpreted by the European Court of Human Rights in its case law.

It was held that, as concerns social insurance, the European Court of Human Rights stated that the payment of social insurance contributions may, under certain circumstances, lead to the emergence of a right protected under article 1 of Protocol no. 1 to the Convention in the sense that, at some point, it may benefit from the advantages of the human rights protection system. 

Furthermore, the courts analysed the compatibility of such restriction with the requirements of article 1 paragraph 1 of Protocol no. 1 and article 14 of the Convention, by taking into account the scope of persons harmed by this limitation and the proportionality of the restriction in relation to the aim pursued when adopting Law no. 119/2010.

Thus, it was held that, although the objective pursued by adopting Law no. 119/2010 may be considered legitimate – considering that the respective regulation seeks to mitigate the negative consequences of the economic crisis – the legislator failed to maintain a reasonable relationship of proportionality between the means employed in order to achieve the above mentioned objective and the protection of individual interests. Law no. 119/2010 establishes a burdensome and excessive burden only for certain categories of pensioners, especially since (i) the envisaged measure is not temporary and (ii) not all service pensions were reduced. 

In other cases, the courts dismissed the appeals on the ground that the Constitutional Court stated that Law no. 119/2010 does not infringe the Constitution.

Ab initio, the High Court of Cassation and Justice held that the decisions and reasoning of the Constitutional Court are mandatory as regards the compliance or non-compliance of the domestic regulations with the Constitution, the Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights. However, it stated that the decisions of the Constitutional Court, which establish the constitutionality of a law or legal provision, have an abstract nature.   

Therefore, “ordinary courts have the right to specifically assess, under the circumstances of each case, whether the application of the same legal provision does not entail consequences that are not compatible with the Convention, its additional protocols or the case law of the European Court of Human Rights for the claimant”.

Also, the High Court of Cassation and Justice held that the source of non-uniform practice stems from the analysis of proportionality between the measures established by Law no. 119/2010, i.e. reduction of special pensions and restriction on the exercise of the right to pension. In this conceptual framework, the Supreme Court stated that the ordinary courts have not applied the fair balance test in accordance with the specific circumstances of each case. Moreover, the “interference” was not examined in all cases in terms of right to “peaceful enjoyment of possessions” (the general rule and the first thesis of article 1 of Protocol no. 1), but as a violation such as “deprivation of possessions” (the second thesis of article 1).

Thus, by reassessing service pensions, the individuals targeted by these measures witnessed their right restricted by pension cuts between 30% and 80% (sometimes even more) as a consequence of supressing the additional benefit granted from the state budget (so, by eliminating the non-contributory part) which varied from one professional category to another and, within the same category, from one person to another, in accordance with the requirements provided by the law concerning the professional status and qualifications of each beneficiary. 

On these grounds, the High Court of Cassation and Justice dismissed the referral in the interest of the law, stating the following: “ it is impossible to render, through a referral in the interest of the law, a general solution, that has the ability to be applied in each case brought before the courts, since the compliance with the proportionality principle should be analysed in concreto, depending on the specific evidence and circumstances related to each case or the particular facts; therefore, this is just a matter of applying the law”.

In this context, we mention the fact that ECtHR decided[114] that reforming the pension system – by recalculating the service pensions – is compatible with article 1 of Protocol no. 1 to the European Convention on Human Rights.

The European Court of Human Rights rejected as inadmissible under art. 35 paragraphs 3 and 4 of the Convention, the complaints regarding the violation of article 1 of Protocol no. 1 to the Convention, in conjunction with article 14 of the Convention. 

ECHR concluded that the pensions’ reduction, although substantial, is a way of integrating these benefits in the general system of pensions, in order to balance the budget and eliminate the differences between pension schemes. Therefore, these reasons may not be considered unreasonable or disproportionate. 

Moreover, according to the European Court of Human Rights, the pension reform did not have retroactive consequences, as it did not interfere with the right to receive benefits acquired under the social insurance contributions paid during the working years. 

As regards the differences of treatment in relation to other categories of pensioners, the Court held that a difference of treatment is discriminatory under article 14 of the Convention if it has neither objective nor 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”.

We believe that laws that regulated the reduction of service pensions violate the right to pension, governed by article 47 paragraph (2) of the Constitution, and the principle of non-retroactivity of civil law, enshrined in article 15 of the Romanian Constitution.

As we mentioned above, the Constitutional Court emphasized that the special pension consists of two parts (contributory and non-contributory). The non-contributory part is paid by the government, as a supplement, and forms a “partial compensation for the inconveniences resulting from special statutes”[115].

Thus, it was argued that the special non-contributory part of the pension is not linked to the constitutional right to pension; therefore, it may be granted by considering the state’s financial resources.

In this conceptual framework, we recall the fact that the fundamental law recognizes the right of citizens to pension, without distinguishing between contributory pensions and non-contributory ones. Thus, ubi lex non distinguit, nec nos distinguere debemus.

The right to pension may not have a constitutional nature only if based on the principle of contribution, but also in any form regulated by the laws in the respective field.

The calculation of the pension amount is regulated by law and not by the Constitution – thus, the fundamental law aims at guaranteeing the right to pension as a fundamental right and not as a specific embodiment.

Apart form the legal issues examined above, we consider that the legal provisions governing the reduction of special pensions violate the principle of non-retroactivity of the law.

We recall that the Constitutional Court held that the principle of non-retroactivity was not violated because the amount of pensions was reduced only ex nunc and the individuals who were entitled to receive service pensions were not forced to refund their benefits.

From our perspective, the Constitutional Court made confusion between the requirements of granting the right to pension and its payment, which involves successive performances.

Under the Romanian law, the pension is granted to the social contributors after the assessment of the following elements:  (i) the standard age of retirement; (ii) the contribution period and (iii) the formula used for calculating the pension.

Therefore, the formula used for calculating the pension represents a requirement for accessing the pension, being less related to its exigibility. The fact that the pension is paid in instalments may not lead to the conclusion that it is a pending right – facta pendentia, because the pension is not reassessed every month.

From this perspective, we note that the legal situation concerning the recognition, as well as establishing and granting the respective pension was supressed under the influence of the previous law – facta praeterita.

Consequently, the application of the amended formula in respect to benefits in payment blatantly violates the principle of non-retroactivity of civil law. 

***

At the end of our considerations, we shall briefly present the case law of the European Committee of Social Rights regarding the reduction of social security rights, in order to illustrate the compliance of such measures with the provisions contained in the European Social Charter

In this field, Decision no. 76/2012[116] is relevant. The Federation of employed pensioners of Greece submitted a complaint before the European Committee of Social Rights, alleging that certain regulations introduced by the Government of Greece from May 2010 onwards, that modified both public and private pension schemes, are in violation of Article 12§3 and 31§1 of the European Social Charter (1961).

The Greek Government argued that the reduction of social rights is necessary for the protection of public interests, having resulted from Greece’s grave financial situation. In addition, the Greek Government made references to the commitments undertaken in relation to other international organizations (e.g.: E.U.; I.M.F.).

In this context, the Committee stated that a Member State is not exempted from the obligation to comply with the European Social Charter on the grounds that it undertook other commitments in relation to other international organizations.

Ab initio, the Committee recalled that reductions in the benefits available in a national social security system do not automatically constitute a violation of Article 12§3[117].

However, the Committee considered that, even when reasons related to the economic situation of a state party make it impossible for a state to maintain their social security system at the level that it had previously attained, it is necessary by virtue of the requirements of Article 12§3 for that state party to maintain the social security system on a satisfactory level that takes into account:

1. The legitimate expectations of beneficiaries of the system and
2. The right of all persons to effective enjoyment of the right to social security.

According to the European Committee of Social Rights, the above-mentioned requirement stems from the commitment of state parties “to endeavour to raise progressively the system of social security to a higher level”.

Furthermore, the Committee stated that, according to art. 31 of the European Social Charter, when issuing provisions that will restrict the rights guaranteed, the Member States must be capable of establishing that any restrictions or limitations are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals.

Taking into consideration all the circumstances of the case, the Committee has explicitly considered that restrictions or limitations to rights in the area of social security were compatible with the Charter in so far as the following criteria was taken into account:

1. The nature of the changes (field of application, conditions for granting allowances, amounts of allowance, lengths, etc.);
2. The reasons given for the changes and the framework of social and economic policy in which they arise; the extent of the changes introduced (categories and numbers of people concerned, levels of allowances before and after alteration);
3. The necessity of the reform, and its adequacy in the situation which gave rise to these changes (the aims pursued);
4. The existence of measures of social assistance for those who find themselves in a situation of need as a result of the changes made; and
5. The results obtained by such changes.

As such, the Committee concluded that the income of the elderly should not be lower than the poverty threshold, defined as 50 per cent of median equivalised income, as calculated on the basis of the Eurostat at-risk-of-poverty threshold value[118].

Otherwise, the reduction or limitation of the rights covered by the European Social Charter would lead to the deepening of the economic crisis and the "burdening” of the social protection systems, with special regard to the social.

With regard to the situation described by the Federation of employed pensioners of Greece, the Committee considered that the Greek Government has not conducted a minimum level of research and analysis into the effects of the measures undertaken.

Thus, in a nutshell, the Committee concluded that the Government did not undertake appropriate measures, in order to maintain a sufficient level of protection for the benefit of the most vulnerable members of society. As such, the general interest was not reconciled with individual rights, leading to (i) the deprivation of the population of a very substantial portion of their means of subsistence and (ii) the infringement of the legitimate expectations principle.