PETRESCU A OSTATNÍ proti Rumunsku

FOURTH SECTION

DECISION

Application no. 31390/18
Amelia-Nicoleta PETRESCU against Romania
and 9 other applications
(see appended list)

The European Court of Human Rights (Fourth Section), sitting on 7 March 2023 as a Chamber composed of:

Gabriele Kucsko-Stadlmayer, President,
Tim Eicke,
Faris Vehabović,
Branko Lubarda,
Armen Harutyunyan,
Anja Seibert-Fohr,
Ana Maria Guerra Martins, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the decision taken by the President of the Chamber to appoint Tim Eicke, the judge elected in respect of the United Kingdom, to sit as an ad hoc judge in respect of Romania, in accordance with Rule 29 § 2 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants and the relevant details of their applications is set out in the appendix.

2. The Government were represented by their Agent, Ms O. Ezer, of the Ministry of Foreign Affairs.

3. The facts of the case may be summarised as follows.

1. BACKGROUND

4. The applicants are all employees – doctors, biologists, chemists, medical assistants or nurses – of forensic medicine and/or pathological anatomy entities (laboratories or services), who claim that in so far as their type of work has for a long time been considered as performed in specific conditions with a higher degree of exposure to risk (see also under paragraphs 30 32, 33 and 44 point 59. below), they are entitled to be recognised as working in “special conditions” (condiţii deosebite de muncă).

The recognition of such working conditions triggered specific benefits related to the amount of salary, working schedule (fewer hours of work, more days of annual leave), pension‑related rights and also had an impact on the claimants’ seniority in their job. They lodged requests before the domestic courts seeking to be recognised as working in special conditions, relying mainly on the provisions of Article 22 of Law no. 104/2003 on the handling of human cadavers and the removal of organs and tissues from human cadavers for transplantation (hereinafter “Law no. 104/2003” see paragraph 34 below).

5. At the relevant time, according to the case-law of some of the appellate courts, all employees working in the field of handling of human bodies, as described by Law no. 104/2003, had to be considered by default as working in “special conditions”; according to another line of case-law, which was also applied by the domestic courts in the applicants’ cases, and which followed closely the rules set out in the general Law no. 19/2000 on the public pension scheme and other social rights (see paragraph 32 below), such conditions had to first be recognised by a regional labour department, which had to assess the steps taken by each employer on a case-by-case basis and to confirm whether or not they complied with the conditions set out by the general law on the granting of this status.

6. All the claims lodged by the applicants for the recognition of their having worked in “special conditions” for several years were rejected; the final decisions of dismissal are mentioned in the appended table. In parallel proceedings lodged by the applicants’ colleagues working in the same field, similar claims were allowed by other appellate courts.

2. THE DOMESTIC PROCEEDINGS
   1. The applicants listed under 1 to 8 in the appendix (applications nos. 31390/18, 31399/18, 31401/18, 32201/18, 33778/18, 34299/18, 34575/18 and 39156/18)

7. On an unspecified date in early 2017, the applicants who had started working in the pathological-anatomy laboratory at Prof. Dr. Th. Burghele Hospital in Bucharest (hereinafter “the employer”) at different dates between 1986 and 2015 (for details see the appended table) requested information from the Bucharest Pensions Department about their relevant periods of contribution to the State pension scheme and their pension score. The information thus obtained revealed that they appeared to have been classified as having carried out their jobs in normal conditions, even though in reality they deemed that they had been working in special conditions. Indeed, for those of them who had been employed before 1 May 2007 (1 October 2006 respectively in the case of the applicant Berdan), up to that point their employer had recognised they worked in “special conditions and paid the same contributions to the pension system for them as for employees working in special conditions; after that time, none of the applicants was registered as such, even though they continued to receive salary increases corresponding to special working conditions, while the working conditions had not changed, including as far as the length of their shifts was concerned (six hours instead of eight).

8. Consequently, on 3 March 2017 the applicants lodged a declaratory action with the Bucharest County Court, seeking to obtain recognition of the fact that they had never lost their working under special conditions status; they asked that the employer be held liable to retrospectively pay the social contributions corresponding to their real working status and to issue them the documentation certifying that they had worked and continued to work in special conditions (for details on the date as of which such rights were claimed, see appendix below).

9. On 11 July 2017 the first-instance court allowed the applicants’ claims, finding that they had indeed been working in special conditions and that Law no. 104/2003, which governed the applicants’ working conditions, recognised such conditions by right, meaning that any further classification procedures to be undertaken by the employer were unnecessary.

10. On 7 March 2018 the subsequent appeal lodged by the employer, relying mainly on the findings of the High Court of Cassation and Justice (“the HCCJ”) in appeal in the interests of the law (“AIL”) no. 12/2016 (see paragraph 42 below), was allowed by the Bucharest Court of Appeal. The court found that after 2001 the Romanian legislation governing working conditions had been enacted in compliance with the requirements of Council Directive 89/391/CEE (see paragraph 46 below), which aimed to introduce measures capable of encouraging improvements in the safety and health of workers at work, among which the staggered suppression of “special conditions” of work by “normalising” them and rendering them safer.

11. The domestic legislation did not provide for an automatic recognition of all jobs performed in “special conditions”. It required that employers first evaluate such jobs pursuant to the new procedure set out in Government Decision (“GD”) no. 261/2001 and subsequently in GD no. 246/2007, which detailed the methodology for inclusion and subsequent reclassification of jobs in the special-conditions category (see paragraph 32 below); secondly, that they conclude as to the existence or not of special-working conditions; and, lastly, that they have those conclusions approved by the regional labour department.

12. The applicants had not proved that the approval in question had been obtained by their employer, or indeed that the preliminary steps had been initiated by the hospital, even though that procedure had been mandatory for the recognition sought by the applicants. In the absence of approval by the regional labour department and given that the courts did not have jurisdiction to change or repeal legislation, but only to apply it as it had been enacted, the claims submitted by the applicants could not be allowed. Furthermore, the applicants’ argument put forward on appeal that other courts had applied the law differently and allowed similar claims was irrelevant, having regard to the fact that domestic case-law did not represent a source of law, the judge being bound only to apply the law to the facts of the case.

13. The appellate court further dismissed as inadmissible the applicants’ submissions relating to the discrimination they had been subjected to in comparison with other colleagues who worked in conditions similar to theirs, which had been recognised as “special conditions”, because those submissions had been raised for the first time at appeal, thus in breach of the rules governing appeal proceedings.

14. On 12 March 2020 the Bucharest Court of Appeal dismissed as inadmissible the applicants’ request for the review of the judgment of 7 March 2018, relying on the HCCJ’s conclusions regarding AIL no. 24/2019 (see paragraph 44 below).

15. The applicants’ new civil action seeking to have their past and future working conditions recognised as being “special conditions”, relying on the same legal text (Article 22 of Law no. 104/2003) as interpreted on the basis of the HCCJ’s and Constitutional Court’s findings (see paragraphs 37 and 44 below), was dismissed as res judicata by the Bucharest County Court on 3 March 2021. On 17 October 2022 in a final judgment, the Bucharest Court of Appeal partly allowed the applicants’ appeal against the lower court’s decision; the appellate court allowed the applicants’ claims as of 7 March 2018 (see paragraph 10 above) and it confirmed that all the claims concerning the preceding period, namely, prior to 7 March 2018, were res judicata.

2. The applicant listed under 9 in the appendix (Ms Jadranka Shanazo-Stanisici – application no. 59983/18)

16. On 6 July 2016 the applicant, who was working in the pathological anatomy laboratory Medgidia Hospital, asked the Constanţa County Court to recognise that she had been working in “special conditions” ever since she had been employed in the laboratory, namely since 31 December 2010; she pointed out that she was lodging her request under Law no. 104/2003 and hence the findings in AIL no. 12/2016 (see paragraph 42 below) had no relevance in her case.

17. The hospital argued that they had launched the procedure seeking to classify the working conditions in the laboratory as “special”, but the regional labour department had issued a negative reply in January 2001 on the basis of the results of the specific measurements conducted in the workplace. Similar measurements had been done in 2015 by the regional public health department, confirming that the health of the workers in the laboratory was not endangered by the working conditions there.

18. On 30 January 2017 the court dismissed the applicant’s claims as ill‑founded, finding that although she had worked in the laboratory at Medgidia Hospital, she had not proven that she had worked in a pathological anatomy “service”, within the meaning of Articles 6 and 16 of Law no. 104/2003 (see paragraphs 34-35 below). Furthermore, in accordance with the findings in AIL no. 12/2016 (see paragraph 42 below), the declaratory action lodged by the applicant was considered inadmissible.

19. Before the Constanţa Court of Appeal the applicant complained that the first-instance court’s interpretation of the law had been too formalistic; furthermore, several attempts had been made by the hospital at which she worked to have the working conditions in the laboratory classified as “special”, but the regional labour department had thus far refused to approve the requests. Also, although her employer paid her a salary as if she were working under special conditions, for the purposes of pension benefits, it reported to the relevant authorities that the working conditions were normal, thus depriving the applicant of her pension-related rights.

The applicant also observed that the measurements conducted in the hospital over the years to assess whether the requirements for special working conditions had been met had all been deficient, as they had lacked relevant and exhaustive information concerning, in particular, the laboratory; nevertheless, the existence of several noxious chemical and biological substances in the laboratory had been detected by several such measurements (in 1999, 2001, 2003, 2006, 2007, 2008 and 2015).

Furthermore, the first-instance court’s allegedly wrongful application of the relevant law had led to the applicant being discriminated against in comparison with colleagues who worked in similar conditions and whose similar actions had been allowed by other courts.

20. On 28 September 2017 the applicant asked to apply to the HCCJ for a preliminary ruling settling legal matters (hotărâre prealabilă pentru dezlegarea unor chestiuni de drept), claiming that the findings of the HCCJ in its AIL no. 12/2016 (see paragraph 42 below) were not relevant to her case in view of the fact that in accordance with the provisions of the lex specialis, Law no. 104/2003, the courts were bound to recognise that, having regard to the specificities of her job, her work at the laboratory had been performed in special conditions, regardless of what the entity was called or how it was organised (a service or laboratory).

This request was dismissed as inadmissible by the appellate court on 9 May 2018 because, in the court’s view, it aimed rather to clarify the manner of application of a legal provision, and not its meaning, which was contrary to the purpose of the preliminary-ruling procedure.

21. On 8 June 2018 the appellate court dismissed the applicant’s subsequent appeal; although it accepted that Law no. 104/2003 derogated from the general regime and hence the jobs carried out in the workplaces enumerated in Article 22 were considered ex lege to be carried out in special conditions, it still found that the category of employees such as the applicant, who worked in a laboratory and not a service, was not listed in the law as one which involved special conditions and the consequent benefits thereof. Nevertheless, her employer had already launched the relevant proceedings with a view to changing its organisational structure, including in respect of the reclassification of the entity from a laboratory to a service, and it did pay an increased salary amount to the applicant, corresponding to the related risk of working in “very dangerous conditions”.

22. Concerning the discrimination complaint (see paragraph 19 in fine above), the court found that it did not have jurisdiction to examine it because, according to a decision of the Constitutional Court of 27 May 2009, domestic courts were not entitled to create, modify or repeal existing legislation, but only to apply it as it had been enacted, any alleged discriminatory approach of the legislature being beyond the domestic courts’ jurisdiction.

23. On 7 January 2020 the applicant lodged extraordinary proceedings (revizuire), asking that the final judgment of the appellate court be reviewed on account of the findings by the HCCJ in AIL no. 24/2019 (see paragraph 44 below). The request was dismissed as inadmissible on 2 October 2020.

24. Relying on the findings of the HCCJ in AIL no. 24/2019 (see paragraph 44 below), by a decision of 23 December 2019 the applicant’s employer recognised that the applicant had been working in special conditions as of 12 December 2019; the consequent addendum to her employment contract signed on the same day by both the employer and the applicant sanctioned that recognition.

3. The applicants listed under 10 in the appendix (application no. 42447/19)

25. The applicants were all employees of the forensic-medicine service at Dr. Fogolyan Kristof Emergency Hospital at the material time, having started their employment at different dates between February 2001 and December 2016 (see appended table). Those hired before 1 April 2001 (see appendix and paragraph 26 below) were considered to be working in risky conditions (group II of work, listed under Annex 2 of the Order of the Ministry of Health no. 50/1991, see paragraph 30 below)

26. On 9 June 2017 they lodged a request with the Covasna County Court seeking to be recognised as having worked in special conditions since they had been employed and to have their relevant seniority rights granted. They argued that the working conditions had never changed in substance, but only on a formal basis, since 1 April 2001.

The hospital indicated that by its decision of 2 April 2001, since 1 April 2001 all staff employed in the forensic-medicine service were considered to work in normal conditions and not in special ones, as before.

27. The applicants’ request that the Ministry of Health submit its view on the issue whether jobs such as theirs, performed in forensic-medicine services, should be considered as being performed in special conditions was allowed by the first-instance court. The Ministry replied that jobs performed in pathological anatomy and dissection laboratories within hospitals should be considered as being carried out in “special conditions”.

28. On 25 October 2018 the first-instance court dismissed the applicants’ request to have their employer launch the procedure to reclassify their working conditions as time-barred, the deadline until which Article 16 of GD no. 261/2001 provided for such a possibility having been set at 31 December 2002 (see paragraph 32 below); it partly allowed their claims to be recognised as working in special conditions since 3 April 2003, namely the date of entry into force of Law no. 104/2003 (see paragraph 34 below).

29. The subsequent appeal lodged by the hospital was allowed on 11 March 2019 by the Brașov Court of Appeal; the appellate court considered that according to the findings of AIL no. 12/2016 (see paragraph 42 below), a declaratory action could not be regarded as a remedy available to claimants such as the applicants who were seeking to have the courts recognise their working conditions as “special”; that possibility was available only to the employer and it had to pursue the relevant procedure whereby the special conditions, if applicable, would be submitted for approval by the regional labour department. Such proceedings had not been undertaken and consequently Dr. Fogolyan Kristof Emergency Hospital was not among those employers listed in the appendix to the Law as having special working conditions.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. DOMESTIC LAW AND PRACTICE
   1. General legal framework concerning working conditions

30. The Order of the Ministry of Health no. 50/1991 in force until 31 March 2001, established and enumerated the jobs, activities and occupational categories carried out in special conditions, as relevant for retirement entitlements; it differentiated between work carried out in essentially very risky conditions (group I of work, listed under Annex 1 of the Order) and those in risky conditions (group II of work, listed under Annex 2 of the Order), the degree of risk being determined in concreto by specific expert reports.

The activities carried out in laboratories and departments of epidemiology, microbiology, toxicology, serology, virology, parasitology, forensic medicine, pathological anatomy, morgues and dissection were listed under point 101 of Annex 2.

31. The above-mentioned Order was repealed by Law no. 19/2000 on the public pension scheme and other social rights, (in force since 1 April 2001 and repealed on 1 January 2011 by Law no. 263/2010, see paragraph 33 below); it eliminated the denominations of “group I” and “group II” of work; it further established in its Article 19 that special-conditions workplaces were those which, on a permanent basis or at certain times, could substantially affect an employee’s ability to work because of the high degree of exposure to risk.

The same Article stated that the criteria and methodology for establishing that employment was being carried out in special conditions were to be established by a government decision based on joint proposals of the Ministry of Labour and Social Protection and the Ministry of Health; it further indicated that the jobs carried out in special conditions were to be defined in collective-employment contracts or, in their absence, in a decision taken by the employer’s management; in any event, the approval of the regional labour department for the inclusion of jobs in the special-conditions category was mandatory.

32. The concrete conditions enabling employees to effectively benefit from the said classification were laid out in GD no. 261/2001, which stipulated that employers had to evaluate the working conditions in their unit within a time-limit expiring on 31 December 2002, and GD no. 246/2007, which detailed the methodology for inclusion and subsequent reclassification of jobs in the special-conditions category. GD no. 1014/2015, in force since 1 January 2016, repealed GD no. 246/2007 but reiterated in similar terms the conditions set out therein.

33. Law no. 263/2010 on the unified public pension scheme provided at the relevant time in its Article 29 § 1 that special working conditions jobs were those established as such on the basis of the criteria and methodology laid down in the legislation in force at the time of their classification. From 2015, that Article was supplemented with further provisions which stated that jobs could continue to be classified as being performed in special conditions by renewing the classification approvals on the basis of the methodology established by a GD, for a maximum period of three years starting from 1 January 2016, by which time employers were obliged to normalise working conditions. From 31 December 2015 and until such time as employers obtained the renewal of the classification, they were bound to pay to the relevant State authorities social security contributions corresponding to the difference between the rate they declared and the rate owed for special working conditions.

Article 3 § 1 (g) of Law no. 263/2010 defined special‑conditions workplaces as those where the degree of exposure to occupational risk factors or conditions specific to certain categories of public services, throughout normal working hours, could lead over time to occupational diseases or risky behaviour in the workplace, with consequences for the occupational safety and health of insured persons.

2. Special Law no. 104/2003 on the handling of human cadavers and the removal of organs and tissues from cadavers for transplantation

34. Article 6 of Law no. 104/2003, which came into force on 3 April 2003, provided that hospitals were to incorporate a single pathological‑anatomy service or department, which was to include three distinct entities: histopathology, cytology and dissection.

35. The relevant parts of Article 16 set out that the dissection services in university hospitals were to be used as clinical bases for the university disciplines of anatomy and pathological anatomy.

36. Article 22 of Law no. 104/2003 states as follows:

“Staff working in the pathological anatomy and dissection departments of hospitals [serviciile de anatomie patologică și prosecturi], as well as staff of the university departments of anatomy, histology, pathology and the department of cell biology, fall into the category of special working conditions jobs.”

3. The Constitutional Court

37. On 4 February 2020 the Constitutional Court delivered its decision no. 53 on the constitutionality of Article 22 of Law no. 104/2003 (see paragraph 36 above); it essentially held that the specific activities carried out in forensic-medicine services fell under the scope of Article 22; any other interpretation, which would exclude staff performing pathological anatomy and dissections in forensic-medicine institutions from being classified as working in special working conditions, would be unconstitutional. The relevant parts of the decision read as follows:

“33. The Court holds that medical and teaching activities involving the handling of human cadavers and the removal of organs and tissues from cadavers with a view to transplantation are covered by special rules establishing specific rights for staff carrying out those activities, such as special working conditions. These activities are also part of the tasks of forensic institutions. However, in view of the specific nature of these institutions, namely their contribution to the administration of justice by establishing the truth with a view to resolving criminal, civil or other cases, forensic-medicine activities are subject to separate regulation by Government Ordinance no. 1/2000 [on the functioning of forensic-medicine institutions]. However, the Constitutional Court considers that the pathology and dissection services in these institutions have the same risk characteristics as activities carried out in hospitals. Consequently, the establishment of different legal treatment for staff in forensic-medicine institutions who carry out those activities, namely their exclusion from the right to special working conditions, appears to lack objective and reasonable justification. ...

34. The Constitutional Court therefore holds that the provisions of the contested Law are discriminatory, creating an unjustified difference in legal treatment from the point of view of legal measures concerning the safety and health of employees between persons working under similar conditions, and are therefore unconstitutional ...”

38. The dissenting opinion appended to that decision stated that the matter raised in the constitutional complaint did not aim to have the Constitutional Court verify whether the impugned provisions were in compliance with the Constitution, but rather to establish, by going beyond what was provided in the Law, that a third category of employees, namely staff of forensic‑medicine institutions, be considered as falling under that legal provision. According to the dissenting judge, the constitutional complaint was therefore inadmissible.

4. Appeals in the interests of the law

39. An appeal in the interests of the law (“AIL”) is the mechanism made available in the domestic system with the purpose of ensuring the coherence of the courts’ case-law, the High Court of Cassation and Justice (“HCCJ”) setting mandatory guidelines for a uniform interpretation and application of allegedly unclear or conflicting legal provisions. The mechanism can be initiated by a prosecutor’s office, the governing councils of the appeal courts and the Ombudsman (see also Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 130, 29 November 2016).

40. According to the domestic law, the HCCJ’s interpretation of the legal provisions in question is binding on all the domestic courts only once its extensive decision is published in the Official Gazette. A decision delivered on an appeal in the interests of the law cannot alter the outcome of cases already decided.

1. AIL no. 12/2016

41. On 3 March 2016 the Prosecutor General lodged an appeal in the interests of the law in order to ensure the uniform interpretation and application of Article 19 of Law no. 19/2000 and Article 29 of Law no. 263/2010 on the unified public pension scheme, with reference to the relevant provisions of GD no. 261/2001 on the criteria and methodology for classifying special-conditions jobs and GD no. 246/2007 on the methodology for the renewal of approvals classifying special-conditions workplaces (see paragraphs 30-33 above).

42. The HCCJ delivered its judgment on 23 May 2016, in which it held that there was no right for employees to bring declaratory actions under general‑law provisions seeking to have recognised the special working conditions in which they worked after 1 April 2001; nor was there a right to bring an action to compel employers to classify workplace conditions as special, where the employers had not obtained or, as the case may be, not renewed the approvals for classifying special-conditions workplaces. It was equally not possible to order the employer to recognise or establish by way of judicial proceedings the classification of the claimants’ jobs as being in special conditions where the cumulative conditions relating to the registration of the activity and the employing establishment were not met.

The relevant parts of the judgment, published on 10 November 2016, read as follows:

“5. The majority of courts dismissed the applications, holding, in essence, that the classification of jobs as being in special conditions is carried out by performing the mandatory methodology, in the chronological order laid down by GD no. 261/2001 and/or GD no. 1.025/2003, or by renewing the special-conditions classification approvals according to GD no. 246/2007, these being subsidiary regulatory acts issued in the application of Law no. 19/2000.

6. The fact that in certain circumstances prior to 1 April 2001, the jobs/functions/occupations/activities of some of the applicants were classified in [ordinary or extraordinary] groups of employment does not constitute grounds for the grant of special conditions ... if those procedures have not been followed ...

8. ... it was obligatory for those procedures to be completed and they could not be created retroactively by the courts. A judicial finding classifying under superior working conditions jobs other than those for which those procedures had been followed and for which the [above-indicated] approvals ... had been obtained is tantamount to exceeding the powers of the judiciary, with the potential to give rise to a conflict of a constitutional nature, since the courts cannot substitute themselves for the powers of the social partners or for those of the public authorities involved in the procedures, including the powers of the legislature, when the classification of jobs as being in special conditions is at issue.

9. ... the judge cannot add to the law, cannot by analogy extend its scope of application by supplementing what is considered to be an omission or imperfection, but is bound to apply it to the letter, regardless of his subjective choice as to the degree of adequacy of the law to the social relations which he is evaluating from a legal perspective.”

2. AIL no. 24/2019

43. On 23 May 2019 the Ombudsman lodged an appeal in the interests of the law seeking a uniform interpretation and application of the provisions of Article 22 of Law no. 104/2003 (see paragraph 36 above). In the appeal, supporting the idea that the provisions of Law no. 104/2003 derogated from the general norm in the matter of establishing working conditions and provided for a distinct legal regime applicable, by virtue of the law, to a special and restricted category of staff, it was stated as follows:

“The anatomo-pathology employees benefit from salary increases, additional days’ leave, a six-hour working program, protective food [food with a higher level of nutritional qualities, aiming to assist the body in fighting against the toxic work environment] and personal protective equipment, and carry out their activity in accordance with the provisions of Law no. 104/2003, a law that regulates the handling of human cadavers and the procurement of organs and tissues from cadavers for transplantation purposes. This special law derogates in many respects from the common legislative framework, including by expressly providing that all employees of pathological-anatomy laboratories and forensics fall into the special working conditions category. As a result, this type of job no longer needed the renewal of the approvals for inclusion of these jobs in the special-conditions category ...

Thus, precisely the complexity of the psychic, chemical and biological factors to which the employees of the pathological anatomy and forensic services are exposed is the reason for resorting to the inclusion by law (Law no. 104/2003) of these jobs in the special working conditions category, derogating from common law.”

44. On 14 October 2019 the HCCJ delivered its decision, holding that the jobs of staff working in the pathological anatomy and dissection departments of hospitals, as well as the staff of the university anatomy, histology, pathological anatomy and cell biology department forensic‑medicine services, had to be considered by default as “special conditions” jobs without the need to follow the methodology laid down in previous legislation (GD nos. 261/2001 and 246/2007):

“58. ... it is noted that the initial jurisprudential position [that Article 22 is the lex specialis] gives full effect and effectiveness to the provisions of Law no. 104/2003, in the drafting of which account was taken of the need to regulate the activity of pathological anatomy and dissection in hospitals, the protection of doctors and patients in the performance of medical activity and the need to regulate the legal and ethical conditions for the performance of necropsies and the procurement of cadavers by institutions of higher medical education for teaching or scientific purposes.

59. The term ‘special conditions’ is used by the legislature in Article 22 of Law no. 104/2003 in order to highlight those jobs which, owing to the specific nature of the work involved in handling corpses and removing organs and tissues from corpses for transplantation or for teaching and scientific purposes, are considered extraordinary, unusual or special.

60. These activities are carried out only in dissection departments, while anatomopathological autopsies are carried out only in hospitals or forensic-medicine institutions, as stated in Article 7 of Law no. 104/2003, ... the special nature of the working conditions arising from these activities being emphasised.

61. Before the legal text under consideration was adopted, the specialised staff highlighted above, together with other professional categories in various other specialised fields, were considered to be employed in special-conditions jobs only in compliance with the criteria and methodology provided for in Article 19 § 2 of Law no. 19/2000. The employer’s obligation to obtain the approval of the regional labour department for the classification of special-conditions jobs was also required in accordance with the provisions of Article 19 § 5 of Law no. 19/2000.

62. The fact that the legislature has indicated in concrete terms how the specialised staff covered by Law no. 104/2003 carry out their work in services that fall within the category of special-conditions jobs, without any other reference to legal provisions adjacent to the field of interest in question, and without any other reference to criteria and methodologies for classifying jobs from which the special nature of the working conditions in which the above-mentioned specialist staff work can be inferred, reinforces the conclusion that after the adoption of Law no. 104/2003, the employer is no longer required to follow the methodological procedure laid down in GD nos. 261/2001 and 246/2007, the purpose of which, as has been pointed out, was precisely to classify such jobs as special-conditions jobs ...

65. The concept ‘special working conditions’ must be looked at globally, both in view of the fact that the legislature has eliminated, automatically and by virtue of the law, any possibility that [the jobs indicated in Article 22] could be considered as being performed under normal working conditions, as well as in view of the rights and obligations incumbent on employees and the employer, with practical consequences on the payment of salaries and of pension contributions into the public pension scheme. Moreover, one of the reasons why under Law no. 19/2000, until the entry into force of Law no. 104/2003, the employer had to obtain a prior approval for classifying workplaces as being in special conditions was also the fact that the decision-makers involved in this procedure were constantly seeking to improve and standardise the working conditions under consideration, with a view to preventing accidents at work and occupational diseases. Such an approach also supported the idea that the classification of employees in a higher work group, resulting from the assessment of special or particular working conditions, could be not only permanent but also temporary.

66. The temporary nature of the special working conditions under which specialist staff work, as identified in Article 22 of Law no. 104/2003, has now been abandoned.

67. The legislature’s omission to refer to other legal provisions regulating procedures aiming precisely to assess and classify certain jobs in the category of special-conditions jobs is consistent proof of its intention to emphasise, on the one hand, that the classification of those jobs as being performed in special conditions is permanent and, on the other hand, that there is a permanent need to compensate the work and occupational risks to which persons are exposed under the above-mentioned legal provisions, including by granting special benefits related to pension rights.”

45. This decision was published in the Official Gazette on 12 December 2019.

2. EUROPEAN UNION LAW

Council Directive 89/391/CEE on the introduction of measures to encourage improvements in the safety and health of workers at work

46. In order to comply with its aim, the Directive contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, and general guidelines for the implementation of those principles.

COMPLAINTS

47. The applicants complained that the domestic courts’ rejection of their civil claims concerning salary and pension rights, which had been based on the clear provisions of the law, and their simultaneous acceptance of similar claims lodged by other claimants in identical situations to theirs, had resulted in a breach of their rights guaranteed by Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, both of which taken alone and in conjunction with Article 14 of the Convention.

THE LAW

1. JOINDER OF THE APPLICATIONS

48. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision (Rule 42 § 1 of the Rules of Court).

1. Complaint under Article 6 § 1 of the Convention

49. The applicants complained that the domestic courts’ rejection of their civil claims, which had been based on the clear provisions of the law, and their simultaneous acceptance of similar claims lodged by other claimants in identical situations to theirs, had resulted in a breach of their rights guaranteed by Article 6 § 1 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

1. The parties’ submissions

(a) The applicants

50. The applicants essentially argued that their claims had been unfairly dismissed by the courts, which had wrongfully interpreted the clear provisions of the relevant law. They had consistently argued that Law no. 104/2003 had derogated from the general regime in respect of specific jobs, such as theirs, in such a way that those jobs were to be considered ex lege as carried out in special working conditions, with all the consequences that entailed in terms of financial compensation and related pension rights.

51. The same arguments as to the clear purpose and effects of Law no. 104/2003 had subsequently been confirmed by the HCCJ and the Constitutional Court. In spite of all that, the applicants were now in a situation where their working conditions for the work carried out before 2019, when AIL no. 24/2019 was adopted (see paragraph 44 above), could no longer be recognised as special working conditions, and consequently, in the calculation of their pension entitlements, they were unable to benefit from several years’ worth of benefits.

(b) The Government

52. The Government submitted, on the one hand, that Article 6 did not provide for a right to consistent domestic case-law (they cited Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, 20 October 2011) and, on the other hand, that even if the matter at stake in the present case had given rise to conflicting case-law, that had occurred at the level of the appellate courts, and not at the level of the highest national court (contrast Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, 29 November 2016).

53. In any event, the impugned divergence had been resolved rather promptly, namely within a little over two years from when it had started in 2016. The Ombudsman had lodged an AIL in May 2019 and the HCCJ had given its judgment in November of the same year (see paragraphs 43‑44 above), on the basis of which all the relevant domestic case-law had been harmonised; it followed that the available mechanism for the harmonisation of the domestic case-law had been prompt and efficient and hence the safeguards of Article 6 had been complied with.

2. The Court’s assessment

(a) General principles

54. The general principles applicable to cases concerning conflicting decisions in case-law have been referred to by the Court in its judgment in the case of Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, § 116, 29 November 2016).

55. In particular, the Court has held that the possibility of conflicting court decisions is an inherent trait of any judicial system which is based on a network of trial and appeal courts with authority over the area of their territorial jurisdiction. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 51, 20 October 2011). Giving two disputes different treatment cannot be considered to give rise to conflicting case-law when this is justified by a difference in the factual situations at issue. However, when contradictory decisions are given by different domestic courts ruling at final instance, in order to ascertain whether there has been a violation of the right to a fair hearing, enshrined in Article 6 § 1 of the Convention, the Court will be guided by the following criteria, consisting in establishing, firstly, whether “profound and long-standing differences” exist in the case-law of the domestic courts; secondly, whether the domestic law provides for a mechanism for overcoming these inconsistencies; and, thirdly, whether that mechanism has been applied and, if appropriate, to what effect (Lupeni Greek Catholic Parish and Others, cited above, § 116).

(b) Application of these principles to the present case

56. The Court notes at the outset that the parties did not dispute the fact that there were inconsistencies in the adjudication of civil claims brought by many persons who were in identical situations. It also notes that in view of the nature of the claims, the appellate courts were the court of last resort in the matter.

57. As already indicated in paragraph 5 above, some of the appellate courts, including those having delivered judgments in the cases of all the applicants listed under 1 to 8 and 10 in the appendix (see paragraphs 10 and 29 above), considered that Article 22 of Law no. 104/2003 (see paragraph 36 above) did not derogate from the general legal requirements which imposed on employers certain steps in order to have some departments recognised as carrying out work in special conditions; some other courts considered that Article 22 created an exception to the general legal framework on establishing the working-conditions regime – among these, some courts accepted that the special working conditions applied also to the employees of the forensic-medicine laboratories, even though these were not mentioned as such in Article 22 of Law no. 104/2003, while others, such as those which delivered the judgment in the case of the applicant listed under 9 in the appendix (see paragraph 21 above), considered that only those employees enumerated expressly in Article 22 could be considered as working in special conditions ex lege, without having to undertake further steps for the recognition of those conditions.

58. At this juncture, the Court finds it noteworthy to emphasise that, albeit after the impugned decisions in the present case had been given (see paragraphs 10, 21 and 29, 37 and 44 above), both the HCCJ and the Constitutional Court considered that the correct and constitutional approach to be taken by the courts in deciding claims such as the applicants’ was to allow them, so as to give full effect and meaning to the adoption of Law no. 104/2003. Indeed, the two high courts confirmed that the very purpose of Law no. 104/2003 had been to create a special, derogating from the general, regime for establishing special working conditions (see paragraphs 37 and 44 above), in view of the extraordinary type of work carried out by employees in the field of pathological anatomy, dissection and forensic medicine.

59. Following the above-mentioned findings of the Constitutional Court and the HCCJ, the divergent practice on the matter at stake was harmonised and streamlined.

60. In such circumstances, the Court considers that it is not necessary to establish whether before the intervention of the Constitutional Court and of the HCCJ, the above-mentioned conflicting case‑law of the domestic courts was profound and longstanding within the meaning of the Court’s case‑law. What is important is that the national mechanism for overcoming these inconsistencies was used within a relatively short time (some three years, approximated from early 2017, when the first judgment dismissing the applicants’ claims was given – see paragraph 18 above – until late 2019 when AIL no. 24/2019 was adopted – see paragraph 44 above) with the result that the divergence was accommodated.

61. The Court reiterates in this context that albeit the impugned judgments dismissing the applicants’ claims were given before the High Court had had the opportunity to give a uniform interpretation of the legal texts in issue, making the applicants’ situation appear perhaps more regrettable, achieving consistency of the law may take time, and periods of conflicting case-law may therefore be tolerated without undermining legal certainty.

62. Furthermore, the Court notes that the applicants had the benefit of adversarial proceedings, in which they were able to adduce evidence, and that their arguments were properly examined by the courts. At the same time, the courts’ conclusions and their interpretation of the relevant law cannot be regarded as manifestly arbitrary or unreasonable.

63. It follows that the present complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4.

2. Complaint under Article 1 of Protocol No. 1 to the Convention

64. The applicants complained that as a result of the wrongful interpretation of the law, the domestic courts had deprived them of their right to be recognised as having worked in special conditions; such recognition triggered important consequences as regards their seniority and pension rights, namely, enabled them to retire earlier than under the general regime, and with a higher pension. They invoked Article 1 of Protocol No. 1 to the Convention, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

1. The parties’ submissions

(a) The Government

65. Relying on the case of Albu and Others v. Romania (nos. 34796/09 and 63 others, 10 May 2012), the Government argued that no legitimate expectation could be said to arise where there was a dispute as to the correct interpretation and application of domestic law, and the applicants’ submissions had consequently been rejected by the national courts. In the present cases, the applicants’ alleged entitlements, although expressly recognised by the State in the relevant domestic legislation, could not be regarded as having had a sufficient basis in the domestic case‑law, since the courts had interpreted the relevant legal provisions in varying and even conflicting ways, resulting in a case-law divergence on the matter, which had been settled only at a later date by the HCCJ in AIL no. 24/2019 (see paragraph 44 above).

66. On that basis, the applicants could not be considered as having a possession, or a legitimate expectation to obtain the claimed rights. Article 1 of Protocol No. 1 was therefore inapplicable ratione materiae.

(b) The applicants

67. The applicants argued that their claims had had a clear basis in Law no. 104/2003, which derogated from the general regime and granted them specific pecuniary entitlements on account of the special working conditions in which they had always carried out their tasks. The incorrect interpretation by the domestic courts of the clear, relevant legal provisions had deprived them of their right to see such claims recognised, with all the related pecuniary consequences, particularly as regards their seniority and future pension rights.

2. The Court’s assessment

68. The relevant general principles are set out in Béláné Nagy v. Hungary ([GC], no. 53080/13, §§ 74-77, 13 December 2016):

“74. Although Article 1 of Protocol No. 1 applies only to a person’s existing possessions and does not create a right to acquire property (see Stummer v. Austria [GC], no. 37452/02, § 82, ECHR 2011), in certain circumstances a “legitimate expectation” of obtaining an asset may also enjoy the protection of Article 1 of Protocol No. 1 (see, among many authorities, Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, ECHR 2007-I).

75. A legitimate expectation must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision. The hope that a long‑extinguished property right may be revived cannot be regarded as a “possession”; nor can a conditional claim which has lapsed as a result of a failure to fulfil the condition (see Gratzinger and Gratzingerova v. the Czech Republic (dec.) [GC], no. 39794/98, §§ 69 and 73, ECHR 2002-VII). Further, no “legitimate expectation” can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (see Kopecký v. Slovakia [GC], no. 44912/98, § 50, ECHR 2004-IX). At the same time, a proprietary interest recognised under domestic law – even if revocable in certain circumstances – may constitute a “possession” for the purposes of Article 1 of Protocol No. 1 (see Beyeler, cited above, § 105).

76. In cases concerning Article 1 of Protocol No. 1, the issue that needs to be examined is normally whether the circumstances of the case, considered as a whole, conferred on the applicant title to a substantive interest protected by that provision (see Iatridis, cited above, § 54; Beyeler, cited above, § 100; and Parrillo, cited above, § 211). In applications concerning claims other than those relating to existing possessions, the idea behind this requirement has also been formulated in various other ways throughout the Court’s case-law. By way of example, in a number of cases the Court examined, respectively, whether the applicants had “a claim which was sufficiently established to be enforceable” (see Gratzinger and Gratzingerova, cited above, § 74); whether they demonstrated the existence of “an assertable right under domestic law to a welfare benefit” (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2005-X); or whether the persons concerned satisfied the “legal conditions laid down in domestic law for the grant of any particular form of benefits” (see Richardson v. the United Kingdom (dec.), no. 26252/08, § 17, 10 April 2012).

77. In Kopecký, the Grand Chamber recapitulated the Court’s case-law on the notion of “legitimate expectation”. Following an analysis of different lines of cases concerning legitimate expectations, the Court concluded that its case-law did not contemplate the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there was a “legitimate expectation” protected by Article 1 of Protocol No. 1. It took the view that “where the proprietary interest is in the nature of a claim it may be regarded as an “asset” only where it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it” (see Kopecký, cited above, § 52).”

69. In the present cases, the applicants’ alleged pecuniary entitlements, deriving from the claimed recognition of having worked in “special conditions”, as per the relevant domestic legislation, namely Law no. 104/2003, cannot be regarded as having a sufficient basis in domestic case‑law, since at the relevant time the courts gave varying and even conflicting interpretations of the relevant legal provisions, resulting in a divergent, unsettled case-law on the matter.

70. In particular, for some time, divergent decisions existed as to the correct interpretation of the relationship between on the one hand the general law and the enacting Government decisions which provided for a specific methodology employers had to follow to have work recognised as being performed under “special conditions” and on the other hand the special Law no. 104/2003 (see paragraph 57 above). At this juncture, the Court reiterates the subsidiary nature of its role. It is not for the Court to act as a court of fourth instance and to review the choices of the domestic courts concerning the interpretation of legal provisions and the inconsistencies that may result, nor is it its role to intervene simply because there have been conflicting court decisions. For the Court, where there is no evidence of arbitrariness, examining the existence and the impact of such conflicting decisions on the applicants’ Article 6 rights or on their property rights does not mean examining the wisdom of the approach the domestic courts have chosen to take. Therefore, even though the interpretation made by the relevant domestic courts was unfavourable to the applicants, the effects of such interpretation, however unjust it might appear compared with the solution adopted by some other domestic courts in similar proceedings, and despite the fact that the applicant’s position was ultimately confirmed on a principled level by the Constitutional Court and the HCCJ, cannot be regarded, in itself, as incompatible with the Convention (see, mutatis mutandis Nejdet Şahin and Perihan Şahin, cited above §§ 88-90).

71. As a consequence, even in the rather unusual circumstances of this case, it cannot be argued that the applicants had a possession within the meaning of Article 1 of Protocol No. 1 at the time when the contested decisions were given, that is before the above-mentioned decisions by the Constitutional Court and the HCCJ. Likewise, given the existence of legal uncertainty, incompatible with the concept of “settled case-law”, regarding the outcome of the proceedings brought by the applicants, the Court considers that the latter cannot be said to have had a “legitimate expectation” either (see, mutatis mutandis, Albu and Others, cited above, § 47; and Liepājnieks v. Latvia (dec.), no. 37586/06, 2 November 2010, §§ 95-96).

72. It follows that the applicants did not have a possession within the meaning of Article 1 of Protocol No. 1, their related complaint being therefore

inadmissible as being incompatible ratione materiae, in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Complaint concerning discrimination

73. The applicants complained that the alleged inconsistency in the case‑law on the matter of recognition of “special working conditions” had led to their being discriminated against compared with other claimants, whose claims had all been allowed by the courts. They relied on Article 14 taken in conjunction with Article 6 § 1 of the Convention, and Article 1 of Protocol No. 1 to the Convention. Article 14 reads:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

74. In view of its findings in paragraphs 60-62 and 69-71 above, the Court considers that this complaint is manifestly ill-founded (see Pérez Arias v. Spain, no. 32978/03, § 28, 28 June 2007) and should be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, by a majority,

Decides to join the applications;

Declares the applications inadmissible.

Done in English, and notified in writing on 30 March 2023.

Ilse Freiwirth Gabriele Kucsko-Stadlmayer
Deputy Registrar President

APPENDIX

List of cases