ZELCA A OSTATNÍ proti Rumunsku

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65161/10
by Zelca and others
against Romania

The European Court of Human Rights (Third Section), sitting on 6 September 2011 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 22 July 2010,

Having deliberated, decides as follows:

THE FACTS

The applicants are all Romanian nationals. Details as to their names are indicated in the appended table. All of them are represented before the Court by the Sed Lex Constanţa Financial Trade Union (“the Union”), which has its headquarters in Constanţa.

A. The circumstances of the case

1. The facts of the case, as submitted by the applicants, may be summarised as follows.

2. On 19 November 2008 the Union, on behalf of its members (the applicants), filed a petition against their employer, a State agency, namely the Constanţa Department of Public Finance, asking to have their entitlement to certain wage-related rights acknowledged. More specifically, relying on section 31(1) (c) and (d) of the Public Servants’ Statute (Law no. 188/1999), they asked for two allowances to be added to their basic salary, namely a grade supplement and a supplement related to their salary step. The applicants quantified each of these supplements at 25% of the basic salary.

The aforesaid allowances were to be paid retroactively, starting from 1 April 2004, and correspondingly updated in line with the inflation index. The amounts were to be paid for the whole duration of the employment contract.

The employer dismissed the petition as ill-founded, in so far as the legislation did not allow the payment of the allowances in question; moreover, the budget allocated to the payment of salary entitlements did not include the allowances and in any event, a regional department of public finance was not competent to decide on budgetary matters.

3. On 20 November 2008 the applicants contested that decision before the Constanţa County Court. They contended that even though, in accordance with Government Emergency Ordinance no. 92/2004, the application of the provisions granting them the rights in question had been suspended until 31 December 2006, the suspension did not mean the extinction of the rights, and in any event, the suspension was in breach of Articles 41 and 53 of the Constitution; therefore, the allowances claimed were to be paid retroactively, from 2004 onwards.

The applicants also invoked Article 1 of Protocol No. 1 to the Convention, alleging that their right to obtain the allowances in issue was a “possession” within the meaning of that Article.

In support of their claims and referring also to Articles 6 and 14 of the Convention and the case of Beian v. Romania (no. 1) (no. 30658/05, ECHR 2007‑V), the applicants invoked the case-law of other courts of appeal in Romania, which had granted the requested allowances to their fellow public servants across the country. The applicants made specific reference to judgments given in 2008 by the Botoşani County Court, the Suceava County Court and the Caraş-Severin County Court, which had all become final after being upheld on appeal by the corresponding courts of appeal.

4. On 14 April 2009 the Constanţa County Court dismissed the applicants’ claim. The court acknowledged that the two supplements claimed were provided for by law, albeit without any indication of a precise amount. In fact, none of the subsequent legal texts regulating civil servants’ salary entitlements made any reference to a method or criteria for determining the amount of each of the supplements.

Therefore, even though Law no. 188/1999 expressly provided that a civil servant’s salary also included the grade supplement and the salary-step supplement, the determination of the corresponding amounts was not possible. Consequently, the court held:

“For the calculation of the two allowances, as components of public servants’ salaries, explicit legal rules for the application of section 31(1) (c) and (d) are necessary, and this task belongs either to the legislative power, in the event that a law is passed, or to the executive power, in the event that a decision for the application of the law is delivered.”

The court further considered that to grant the allowances in the absence of precise criteria for their calculation would mean obliging the employer to pay sums that were impossible to calculate, and thus delivering a judgment that was impossible to enforce; on the other hand, the potential calculation of those allowances by the court would mean encroaching on the powers of the administrative authorities and completely disregarding the Constitutional Court’s case-law to the effect that:

“the courts do not have jurisdiction to repeal or to refuse to apply specific normative acts which they consider to be discriminatory, and thus to replace them with norms created by judicial intervention or with provisions contained in other normative acts.”

With respect to the allegations raised under Article 1 of Protocol No. 1 to the Convention, the court held that the applicants could not claim to have a possession, in so far as their requests had never been allowed or confirmed by the courts in a final judgment.

5. The applicants appealed against that judgment before the Constanţa Court of Appeal, reiterating their arguments submitted before the
first-instance court. They again referred to the fact that several other courts across the country had already granted the allowances in issue to colleagues of theirs, meaning that by denying them the right to also receive the allowances, the County Court had discriminated against them in relation to other public servants, in violation of Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1.

In addition, they stated that the allowances were provided for by law, and that their right to receive them had been confirmed by the first-instance court, which had nonetheless decided not to grant the allowances in the absence of criteria for their calculation.

The applicants further mentioned that their lack of financial means and the defendant’s omission to include the related costs in the budget could not be held against them in order to deprive them of the two allowances in question, to which they were entitled by law.

When asked to comment on the judgment given on 21 September 2009 by the High Court of Cassation and Justice on an appeal in the interests of the law, in which it held that the two allowances in question could not be granted by the judiciary, the applicants’ representative stated that he was not able to give an opinion on the issue.

6. On 27 January 2010 the Constanţa Court of Appeal dismissed the applicants’ appeal.

The court noted that according to the above-mentioned judgment given by the High Court of Cassation and Justice, in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step could not be granted by the judiciary.

In so far as the High Court’s interpretation of the law, as set out in the decision given in the appeal in the interests of the law, was obligatory, the court was bound to follow the High Court’s ruling and thus to dismiss the applicants’ claims as ill-founded.

B. Relevant domestic law and practice

1 The Public Servants’ Statute

7. The Public Servants’ Statute entered into force on 7 January 2000, once Law no. 188/1999 had been enacted. On 1 January 2004 section 29 of the Statute was amended to provide that, starting from that date, certain allowances were to be included in the salaries of public servants:

Section 29

“1. For discharging their activities public servants have the right to a salary composed of the following:

(a) basic salary;

(b) seniority allowance;

(c) grade allowance;

(d) step allowance.

2. Public servants shall be granted bonuses and other salary rights, in accordance with the law.

3. The remuneration of public servants shall take place in accordance with [the criteria] prescribed in the law on the implementation of a unitary remuneration system concerning public servants.”

On 19 July 2006, point (d) was amended to read “allowance corresponding to the salary step”. With effect from 1 June 2007, section 29 became section 31, while no amendments were made to the content.

The application of these provisions was suspended from 2004 until 2006, firstly by Law no. 164/2004 of 15 May 2004, then by Government Emergency Ordinance no. 92/2004, enacted as Law no. 76/2005, and then by Government Ordinance no. 2/2006, enacted as Law no. 417/2006.

With effect from 12 November 2009, the two allowances, namely the grade supplement and the allowance corresponding to the salary step, were abolished by Law no. 330/2009, which itself was repealed on 1 January 2011.

2. The appeal in the interests of the law of 21 September 2009

8. Starting with 2008, a divergent case-law emerged across the country concerning the granting of the grade supplement and of the allowance corresponding to the salary step.

9. It is why on 13 May 2009, in order to ensure the uniform interpretation and application of the law, the Prosecutor General applied to the High Court of Cassation and Justice, in accordance with the provisions of Article 329 of the Romanian Code of Civil Procedure.

In the judgment delivered on 21 September 2009, the High Court confirmed the existence of a divergence in the case-law concerning the interpretation of section 31(1) (c) and (d) of Law no. 188/1999, on the granting of allowances to public servants. The High Court held that the entitlements claimed did not constitute a “possession” within the meaning of the European Convention, being only “virtual rights” in the absence of criteria for their calculation; it consequently held that:

“for the uniform interpretation and application of section 31(1) (c) and (d) of Law no. 188/1999, the High Court holds that in the absence of a legal determination of their amount, the grade allowance and the allowance relating to the salary step cannot be granted by the judiciary.”

The High Court’s interpretation of the provisions in question is binding on all the domestic courts. A decision delivered on an appeal in the interests of the law cannot alter the outcome of cases already decided.

COMPLAINTS

10. The applicants complained in substance under Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention that the proceedings which culminated in the judgment of 27 January 2010 by the Constanţa Court of Appeal had been unfair, in so far as the domestic courts had wrongfully dismissed their claims relating to the grade and salary-step allowances and had not taken into consideration the existence of conflicting case-law on the same subject, in which those allowances had been granted to many of their fellow civil servants across the country. They alleged that they had been wrongfully deprived of their right to the allowances in question and discriminated against in comparison with their colleagues who had been awarded the allowances.

THE LAW

A. Article 6 § 1 of the Convention, taken alone and in conjunction with Article 14

11. The applicants alleged that their right to a fair hearing had been violated by the domestic courts, which had misinterpreted the applicable law and rejected their claims, thus discriminating against them in relation to other civil servants whose similar claims had been allowed by other courts across the country. Articles 6 and 14 of the Convention, in so far as relevant, read as follows:

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

“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.”

12. The Court reiterates at the outset that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I). It is in the first place for the national authorities, and notably the courts, to interpret domestic law (see Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997‑VIII, and Pérez Arias v. Spain no. 32978/03, § 23, 28 June 2007).

Furthermore, the Court reiterates that the existence of a profound and long-lasting conflict in the case-law of the national courts as to the interpretation of domestic law may deprive applicants of a fair hearing as far as legal certainty is concerned (see, among others, Tudor Tudor v. Romania, no. 21911/03, §§ 29-32, 24 March 2009). The Court must analyse whether the national system provides a mechanism capable of ensuring consistency in the practice of the national courts, notwithstanding the fact that the process of unifying and ensuring the consistency of the case-law may require a certain amount of time (see Schwarzkopf and Taussik v. the Czech Republic (dec.), no. 42162/02, 2 December 2008).

13. Turning to the present case, the Court notes that the applicants had the benefit of adversarial proceedings, in which they were able to adduce evidence and to freely formulate their defence, their arguments being 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.

14. As to the issue of the divergent case-law, the Court notes that from 2008 onwards, conflicting approaches emerged across the country concerning the interpretation and implementation of the legal provisions granting all public servants specific allowances, in the absence of precise criteria for the calculation of those allowances (see also paragraph 8 above).

However, on 21 September 2009 an appeal in the interests of the law was granted by the Romanian High Court of Cassation and Justice, which laid down binding guidelines for a uniform interpretation of the disputed legal provisions.

The solution applied by the Constanţa Court of Appeal in the applicants’ case followed the interpretation given by the High Court of Cassation and Justice; at the same time, the applicants have not mentioned or relied on, either before the domestic courts or before the Court, any judgments delivered after 21 September 2009 that continued to depart from the solution adopted in the High Court’s ruling on the appeal in the interests of the law.

15. Having regard to all of the above, the Court considers that the mechanism provided for by Article 329 of the Romanian Code of Civil Procedure, as a mechanism designed to resolve, and not preclude, conflicting court decisions, has proved to be effective, since in a reasonably short period of time, it has put an end to the divergence in the case-law concerning the issue of the granting of the grade and salary-step allowances to public servants.

It follows that the applicants’ complaints under Article 6 are inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

16. For the reasons stated above, the Court considers that the applicants’ complaint under Article 14 is also manifestly ill-founded and must be rejected in accordance with the provisions of Article 35 §§ 3 and 4 of the Convention.

B. Article 1 of Protocol No. 1 to the Convention

17. Under Article 1 of Protocol No. 1, the applicants complained in substance that as a result of the wrongful interpretation of the law, the court of appeal had deprived them of their right to be awarded the allowances relating to their grade and to their salary step. The article 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.”

18. The Court notes at the outset that Article 1 of Protocol No. 1 applies only to a person’s existing possessions. Thus, future income cannot be considered to constitute “possessions” unless it has already been earned or is definitely payable (see, for example, Koivusaari and others v. Finland (dec.), no. 20690/06, 23 February 2010). However, in certain circumstances, a “legitimate expectation” of obtaining an “asset” may also enjoy the protection of Article 1 of Protocol No. 1. Thus, where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence (see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004-IX).

However, 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 (ibid., § 50).

19. In the present case, the applicants’ alleged salary entitlements cannot be regarded as having a sufficient basis in the domestic case-law, since the courts’ interpretation on the matter was divergent. Moreover, the High Court’s ruling of 21 September 2009 on the appeal in the interests of the law, which ended the divergence on the matter, confirmed that civil servants were not entitled to the allowances claimed, an interpretation which subsequently prompted the court of appeal to dismiss the applicants’ claims.

It follows that the applicants did not have a possession within the meaning of Article 1 of Protocol No. 1.

20. The complaint under Article 1 of Protocol No. 1 is therefore inadmissible as incompatible ratione materiae, in accordance with Article 35 §§ 3 and 4 of the Convention

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall
Registrar President

Appendix

List of applicants