The High Court refers the law on special pensions to the Constitutional Court once again

The president of the High Court of Cassation and Justice, Lia Savonea, convened the United Sections of the Supreme Court on Friday, December 5, at 12:00 p.m., to analyze the appropriateness of referring the new draft law on magistrates’ service pensions to the Constitutional Court.

The decision was adopted unanimously, with 102 judges out of 102 present.

In the previous referral made by the ÎCCJ, the judges of the Constitutional Court declared the law unconstitutional on formal, extrinsic grounds.

The judges decided to „refer the bill to the Constitutional Court for violating the provisions of Article 1(3) and (5), Article 16(1), Article 114, Article 124(3), Article 133(1), Article 147(4), and Article 148(2) and (4), in summary for the following aspects.”

According to the document, „the draft law discriminates against magistrates compared to other categories of beneficiaries of service pensions, brutally violates the independence of the judiciary, effectively eliminates the service pension for magistrates, violates international standards established by the case law of the European Court of Justice, the European Court of Human Rights, also violates the binding nature of the decisions of the Constitutional Court, uses ambiguous and unclear terms, and contains regulatory gaps that make the law incompatible with the standards of quality and predictability in a state governed by the rule of law, as established by the case law of the Constitutional Court.”

The ICCJ states that „the analysis highlighted the following aspects that make the normative solution, in the opinion of the joint divisions of the High Court of Cassation and Justice and in accordance with the previous case law of the Constitutional Court, incompatible with the rules of the Constitution.”

Regarding the urgency invoked by the Government, the judges argue that it „has not been demonstrated or has been constructed on a counterfactual reality for the following reasons. On the one hand, the invocation of the conditions of Milestone 215 of the PNRR has been taken out of context and is inconsistent with the reality according to the documents communicated by the European Commission. The subject of these communications from the Commission was not the establishment of the retirement procedure, which had previously been deemed to have been fulfilled, but the initial proposal regarding overtaxation.”

In addition, it is stated that „the invocation of economic conditions requiring intervention was not justified by the executive, as there was no data showing the economic impact for the coming years that would have justified the urgency invoked.”

From the perspective of legislative clarity, „the law violates the constitutional obligations of regulatory clarity to ensure predictability and foreseeability enshrined in Article 1, paragraphs 3 and 5, of the Romanian Constitution. Specifically, the law uses legal terms that do not exist in the normative fund and are not defined in the content of this normative proposal, creating uncertainty and unpredictability.”

Regarding the impact on magistrates, the document states that „the law affects the principle of legal certainty, cumulatively creating abrupt changes in the status of magistrates in real transition. Thus, contrary to public discourse, due to the nature of the rules on the staggering of personal age, the staggering of seniority, and the staggering of the elimination of periods assimilated for seniority in the profession, 45% of serving magistrates have a sudden increase at 65 years of age, and 21% have a sudden increase at 60-64 years of age. So we are talking about an estimate of 66% of magistrates in office.”

„The law creates obvious discrimination between categories of service pensions, being clearly unfavorable to magistrates, even though magistrates are the only ones with guaranteed constitutional status. For all categories, the minimum calculation standard is 65% of gross allowances. For magistrates, it is much lower. Compared to other categories of service pension beneficiaries, only in the case of magistrates is the cap drastic, limited to 70% of net income. For other categories, there are much higher limits relative to net income, from 80% upwards.

Finally, the judges say that „the discrimination is obvious and unjustified in relation to the reasons given in the executive’s explanatory memorandum, given that the budgetary effort for the payment of magistrates’ pensions is minimal in relation to the total expenditure on service pensions.”