ANGHELACHE A OSTATNÍ proti Rumunsku

FOURTH SECTION

DECISION

Application no. 44628/19
Eugen ANGHELACHE and Others
against Romania

The European Court of Human Rights (Fourth Section), sitting on 21 November 2023 as a Committee composed of:

Tim Eicke, President,
Branko Lubarda,
Ana Maria Guerra Martins, judges,
and Crina Kaufman, Acting Deputy Section Registrar,

Having regard to:

the application (no. 44628/19) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 August 2019 by the fifty‑six applicants listed in the appended table (“the applicants”), who were represented by Mr I.-D. Rusu and Ms A.-V. Istrătescu, lawyers practising in Bucharest;

the decision to give notice of the application to the Romanian Government (“the Government”), represented by their Agent, Ms O.F. Ezer, of the Ministry of Foreign Affairs;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. At the time of the lodging of the application, the applicants were all employees of the Prahova Veterinary Health and Food Safety Directorate (“the VHFSD”).

2. Under Law no. 153/2017 regulating the public salaries framework (Legea-cadru privind salarizarea personalului plătit din fonduri publice), and following the entry into force of Government decision no. 917/2017 on 1 January 2018, an expert report was produced which concluded that all the employees of the VHFSD were working in dangerous conditions.

3. The VHFSD subsequently awarded some of its employees the allowances corresponding to dangerous working conditions; however, the applicants were excluded.

4. In a judgment dated 31 October 2018, the Prahova County Court allowed a claim by the local trade union of veterinary workers (Sindicatul Liber al Veterinarilor – Prahova), acting on behalf of the applicants, and ordered the VHFSD to pay the applicants the salary allowances retroactively with effect from January 2018.

5. On 13 March 2019 the Ploiești Court of Appeal reversed the lower court’s decision and dismissed the claim. It found that the claim had essentially been a request for the annulment of individual decisions establishing salaries, whereas such claims were supposed to be lodged only after a preliminary administrative procedure with the employer had been undertaken, as provided in Article 37 of Law no. 153/2017. As the applicants had not exhausted that preliminary procedure, their claims were inadmissible. The court further agreed with the submissions of the employer that pursuant to the relevant law, namely Articles 38 §§ 3(a) and 6 of Law no. 153/2017, such allowances were to be awarded with effect from 2018 in exceptional cases limited to employees whose salaries, following their increase at the end of 2017, had reached a specific level as set out in the Law.

6. The national Ombudsman lodged an appeal in the interests of the law seeking clarification of the matter in so far as there appeared to be a divergence in the interpretation of the relevant legal provisions by the domestic courts. In the Ombudsman’s view, the difference in treatment between employees who had been working in similarly difficult conditions was unjustified. The existence of such discrimination had been confirmed by the National Council for Combating Discrimination in its decision of 6 November 2019.

7. In its judgment no. 27/2020 of 26 October 2020, given following the appeal in the interests of the law, the High Court of Cassation and Justice (“The High Court”) established that the allowances were to be granted as prescribed by Law no. 153/2017, namely in connection with progressive levels of salaries. The High Court confirmed that the provisions were discriminatory but considered that in so far as that discrimination had been created by the law, the courts were not in a position to remedy it by issuing individual decisions in contradiction of that law. Furthermore, the High Court noted that a draft law, aimed at granting the allowances to all employees working in difficult conditions, was pending in the legislative procedure before Parliament.

8. The draft law mentioned by the High Court in its decision was subsequently passed as Law no. 229 of 4 November 2020, the allowances being granted from the entry into force of the amended law, namely 1 December 2020.

9. The applicants complained, under Article 6 § 1 and Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, of a conflicting judicial practice of the domestic appellate courts, and that their claims for salary allowances arising from their working in “dangerous working conditions” had been dismissed while colleagues working in similar conditions had been successful in their claims.

THE COURT’S ASSESSMENT

1. Preliminary remarks

10. The Court notes that Ms Liviana-Rodica Țane (the second applicant in the appended table) died on 12 January 2021 and that no heirs have expressed the wish to continue her application.

11. It further observes that by a letter dated of 23 November 2022 sent by registered post, Mr Laurențiu-Vasile Stolnicu (the forty-fourth applicant in the appended table), who has retired from the trade union and has not appointed another legal representative, was notified that the period allowed for submission of his observations would expire on 4 January 2023. He did not reply to that letter and no extension of time was requested.

12. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention and the Protocols thereto, the Court, in accordance with Article 37 § 1 (a) of the Convention, considers that it is no longer justified to continue the examination of the application in respect of the second and forty-fourth applicants.

Accordingly, the application should be struck out of the list in respect of Ms Liviana‑Rodica Țane and Mr Laurențiu-Vasile Stolnicu.

2. Complaint under Article 6 § 1 of the Convention

13. The general principles applicable to cases concerning conflicting decisions in domestic judicial practice have been referred to by the Court in Lupeni Greek Catholic Parish and Others v. Romania ([GC], no. 76943/11, § 116, 29 November 2016) and, more recently in Petrescu and Others v. Romania ((dec.), nos. 31390/18 and 9 others, § 55, 7 March 2023).

14. 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). 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 in cases where contradictory decisions have been given by different domestic courts ruling at final instance, 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 those inconsistencies; and, thirdly, whether that mechanism has been applied and, if appropriate, to what effect (see Lupeni Greek Catholic Parish and Others, cited above, § 116).

15. Turning to the circumstances of the present case, the Court notes that the parties did not dispute the fact that there were inconsistencies in the adjudication of civil claims brought by numerous persons in identical situations. It appears that in view of the nature of the claims, the appellate courts were the courts of last resort in the matter.

16. The Court further notes that the mechanism provided by the domestic law for overcoming inconsistencies in domestic judicial practice has been used effectively by the national Ombudsman, who brought an appeal in the interests of the law (see paragraph 6 above). Following that appeal, in its judgment no. 27/2020 of 26 October 2020, the High Court established that the allowances were to be granted in accordance with Law no. 153/2017, that is, in connection with progressive levels of salaries (see paragraph 7 above). In accordance with the domestic law, the High Court’s interpretation of the legal provisions in question is binding on all the domestic courts only once the High Court’s extensive decision has been 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.

17. In such circumstances, the Court considers that it is not necessary to establish whether, before the High Court’s interpretation of the legal provisions in question, the above-mentioned conflicting case-law of the domestic courts was profound and long standing 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 (approximately three years, from January 2018, when the legislation on which the applicants based their claims entered into force – see paragraphs 2 and 4 above – until late 2020, when the High Court’s decision establishing that the allowances were to be granted in the manner prescribed by Law no. 153/2017 was adopted – see paragraph 7 above) with the result that the divergence was accommodated (see Petrescu and Others, cited above, § 60).

18. The Court reiterates in this context that although the 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 in the interpretation of the law may take time, and periods of conflicting case-law may therefore be tolerated without undermining legal certainty (ibid., § 61).

19. 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. The courts’ conclusions and their interpretation of the relevant law cannot be regarded as manifestly arbitrary or unreasonable.

20. 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.

3. Complaint concerning discrimination

21. The applicants complained that the alleged inconsistency in the domestic judicial practice on the matter of the salary allowances aimed at compensating for “dangerous 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. 12 to the Convention.

22. In view of its findings in paragraphs 16-20 above, the Court considers that this complaint is manifestly ill-founded (see Pérez Arias v. Spain, no. 32978/03, § 28, 28 June 2007, and Petrescu and Others, cited above, § 74) and should be dismissed pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to strike the application out of the list of cases in respect of Ms Liviana-Rodica Țane and Mr Laurențiu-Vasile Stolnicu;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 14 December 2023.

Crina Kaufman Tim Eicke
Acting Deputy Registrar President

Appendix
List of applicants: