THIRD SECTION

DECISION

Application no . 66381/09 Constantin Lucian TUNARU against Romania

The European Court of Human Rights (Third Section), sitting on 13 November 2012 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Ján Šikuta , Luis López Guerra , Nona Tsotsoria , Kristina Pardalos , Johannes Silvis , judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 27 September 2009,

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

Having regard to the decision taken by the President of the Chamber to appoint Mrs Kristina Pardalos to sit as ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1 of the Rules of Court), as Mr Corneliu Bîrsan , the judge elected in respect of Romania, had withdrawn from the case (Rule 28 of the Rules of Court),

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Constantin Lucian Tunaru , is a Romanian national who was born in 1956 and lives in Ţicleni .

2. The Romanian Government (“the Government”) were represented by their Agent, Mrs Irina Cambrea , from the Ministry of Foreign Affairs.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicant is an employee of an oil production company, P. (referred to below as “the company”), partly owned by the Romanian State , with places of business all over Romania .

5. In 2008 and 2009 a large number of employees of the company, including the applicant, brought civil actions before the domestic courts requesting that they be granted certain salary benefits provided for in the general collective labour agreement for the oil industry. The requested benefits were a salary supplement for autumn/winter supplies and/or a lump sum equal to the value of a specific quota of natural gas.

6. The applicant ’ s action was rejected by a final decision of Craiova Court of Appeal delivered on 27 March 2009, which found, on the basis of an expert report, that the requested salary benefits had already been included in the applicant ’ s basic salary.

7 . In 2009 and 2010 final judgments by courts of appeal found against most of the employees on the same grounds.

However, some employees were granted the requested benefits, as courts found that they had not received them as part of their basic salary.

B. Relevant domestic regulations

Article 176

“(1) On the occasion of certain annual events such as Easter, May Day, Christmas, as well as in October (for autumn/winter supplies), employees can benefit from a supplement to their salaries, in the form of an additional fixed amount ...

(3) The conditions and criteria for awarding such benefits shall be established in collective labour agreements concluded at company level.”

Article 187

“(1) The employees of the companies listed in annex no.1, point B, shall receive each year a lump sum equal to the value of a specific quota of natural gas.

(2) The employees listed in paragraph (1), as well as the employees of the companies acting in the oil industry listed in annex no.1, shall have the same right, unless they have received the benefit in the form of an increase in their basic salary.”

COMPLAINTS

9. The applicant complains under Article 6 § 1 and, in substance, under Article 14 of the Convention, as well as Article 1 of Protocol No. 1 to the Convention and Article 1 of Protocol No. 12 to the Convention, that cases similar to his case have reached a different outcome on the basis of a differing interpretation of the same legal provisions, in breach of the principle of legal certainty. He alleges that he was wrongfully deprived of the salary benefits provided by the general collective labour agreement and discriminated against in comparison with his colleagues who were in a position similar to his.

THE LAW

10. The applicant complained about the domestic court decision on his action and alleged that it was in breach of Articles 6 § 1 and 14 of the Convention, of Article 1 of Protocol No. 12 to the Convention and of Article 1 of Protocol No. 1 to the Convention which, in so far as is relevant, read:

Article 6 § 1

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

Article 14

“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.”

Article 1 of Protocol No. 1

“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.”

Article 1 of Protocol No. 12

“1. The enjoyment of any right set forth by law 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.

2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.”

A. Arguments of the parties

11. The Government contended that the legal issue raised in the present case does not relate to any conflicting case-law per se , and was not determined by the existence of ambiguous legal provisions, but rather by the application of the relevant regulations to the individual facts of each case.

12. Thus, at a national level, all the domestic courts had the same approach, that is to say that salary benefits provided for in the general collective labour agreement applicable to the oil industry were to be granted to the employees of the Company, unless they had already been included in the basic salary. In 92% of the cases brought before them the courts found, on the basis of expert reports and the evidence adduced by the parties, that the benefits had already been paid.

In a few cases the courts reached a different conclusion, because the Company failed to substantiate claims that the benefits had already been paid as part of the basic salary.

14. In any event, the Government submitted that the domestic decisions reaching a different conclusion from those reached in the applicant ’ s cases were isolated decisions and could not be considered as creating a profound conflict of interpretation.

15. The applicant relied on the submissions he made when he lodged his application with the Court.

B. The Court ’ s assessment

16. The Court reiterates 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 primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation, its role being to verify whether the effects of such interpretation are compatible with the Convention, save in the event of evident arbitrariness, when the Court may question the interpretation of the domestic law by the national courts (see Nejdet Åžahin and Perihan Åžahin v. Turkey [GC], no. 13279/05, §§ 49-50, 20 October 2011).

Divergences of approach may arise between the courts as part of the process of interpreting legal provisions while adapting them to the material situation. Such divergences may also arise within the same court. That, in itself, cannot be considered contrary to the Convention .

The criteria that guide the Court ’ s assessment of the conditions in which conflicting decisions of different domestic courts ruling in the final instance are in breach of the fair-trial requirement enshrined in Article 6 § 1 of the Convention constitute the establishment of whether “profound and long ‑ standing differences” exist in the case-law of the domestic courts, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Nejdet Åžahin and Perihan Åžahin , cited above, §§ 86-87, and Albu and Others v. Romania , nos. 34796/09 ... and 34847/09 , §§ 34 and 38, 10 May 2012, with further references).

17. Turning to the present case, it appears from the information submitted by the parties that throughout the country domestic courts found that the salary benefits requested by the applicant were to be paid only in those cases where they had not been paid as part of the basic salary.

In the great majority of the cases the courts found, in the light of the factual matters submitted to them and on the basis of the evidence adduced by the parties, that employees of the company were not entitled either to a salary supplement for autumn/winter supplies or to a lump sum corresponding to the value of a specific quota of natural gas.

18. Therefore, the Court notes that the disputed matters were not determined by the existence of ambiguous legal provisions or regulations, but were the result of their application to the individual facts of each case.

19. In the light of the above, the Court considers that the legal issue raised by the present cases does not relate to conflicting case-law per se, but rather to a situation where domestic courts have given effect to a clear provision of the law by applying it to cases in which different factual circumstances arose (see, mutatis mutandis, Erol Uçar v. Turkey ( dec .), no. 12960/05, 29 September 2009).

20. Furthermore, the Court notes that the applicant had the benefit of adversarial proceedings, in which he was able to adduce evidence, and that his arguments were p roperly 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.

The same applies to proceedings, such as in the instant case, in which civil courts have ruled on the parties ’ private-law obligations.

22. Finally, the Court finds that there is no evidence in the case file that there were either profound or long-standing differences in the case-law of the domestic courts relating to the matter at stake in the present case, or that there has been any discrimination against the applicant on any grounds.

23. Having regard to all the above-mentioned considerations, the Court considers that the applicant ’ complaints are manifestly ill-founded and should be dismissed as inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar P resident