THIRD SECTION

DECISION

Application no . 28699/09 Stana NEGHEA against Romania and 6 other applications (see list appended)

The European Court of Human Rights (Third Section), sitting on 11 September 2012 as a Committee composed of:

Alvina Gyulumyan , President, Ineta Ziemele , Kristina Pardalos , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having deliberated, decides as follows:

THE FACTS

1. The applicants all reside in Romania and are Romanian nationals, with the exception of the applicant in case no. 33426/10, who is a German citizen. The particulars relating to the applicants ’ names and other details are set out in the table appended hereto.

A. The circumstances of the cases

2. The facts of the cases, as submitted by the applicants, may be summarised as follows.

3. The applicants have been employed as engineers or technical designers in various engineering institutes; in this capacity they claim to have received a significant part of their monthly payment in the form of a compensation through “global agreement” (“ plată în acord global ”) , a type of performance-linked compensation provided for by Law no. 57/1974 (see Relevant domestic law and practice below).

4. The present applications concern essentially the calculation of the applicants ’ pensions pursuant to Law no. 19/2000 regulating the pension system, namely whether their income earned through “global agreement” should be taken into account for the calculation of their pensions.

5. On the basis of documents issued by their former employers, attesting to the structure and composition of their income, the applicants asked the pension authorities to recalculate their pensions in order to take into account the part of their income earned through “global agreement”. They claimed that their income through “global agreement” should be taken into account for the calculation of their pensions as it had a permanent character within the meaning of point V. of the Annex to the Government Emergency Ordinance (GEO) no. 4/2005, their employers having paid the mandatory social security contributions in accordance with Decree no. 389/1972 in force at the time when the applicants were employed; furthermore, the exclusion of such income from the calculation of their pensions contravened the principles inherent to a contributory system, as sp ecifically enshrined in Article 2 of Law no. 19/2000. They contended that this latter approach was followed by other courts, which had allowed identical claims of their former colleagues.

6. The pension authorities dismissed the applicants ’ requests and the competent appeal courts upheld these rulings through final decisions, finding such income to be expressly excluded from the calculation of t heir pension by virtue of point VI of the Annex to GEO no. 4/2005 (see below).

B. Relevant domestic law and practice

7. The relevant provisions of Law no. 57/1974 regarding the payment in accordance with the quality and quanti ty of work, repealed on 12 July 2000, read as follows:

Article 8

“In order to ensure a tighter link between actual work and compensation [ ... ] the following forms may be used: compensation in agreement or per unit [ ... ] ”

Article 9

“ The elements of the compensation system are as follows:

(a) basic salary, which constitutes the main part of total compensation [ ... ]”

Article 12

“(1) The compensation forms are the following:

(a) in agreement or per unit, when due compensation is a product of the unit tariff and the number of units [..] depending on actual conditions, the following variants may be applied:

- direct agreement, when the unit tariff is constant and the retribution is directly proportional with the number of products achieved. [ ... ]

- global agreement, when a work formation reaches and agreement with the enterprise [ ... ] in order to carry out certain works or execute certain products [ ... ] The sums for the works carried out shall be paid monthly [ ... ]”

Article 120

“Technical design activities shall be remunerated primarily through global agreement [ ... ]”

8. The relevant provisions of Law no. 3/1977 on the state pensions, repealed on 1 April 2001, read as follows:

Article 10

“(1) The basic salary taken into account for the calculation of the pension is the average of [ ... ] 5 consecutive years among the last 10 years of employment [ ... ].”

9. The relevant provisions of Decree no. 389/1972 on the contributions to the public social insurance system read as follows:

Article 1

“Socialist state enterprises [ ... ] shall pay to the social security budget a 15% contribution of the gross income of their employees [ ... ]”

10. The relevant provisions of Law no. 19/2000 on the public pension system, repealed on 1 January 2011, read as follows:

Article 2

“The public pension system is organized on the following principles:

(e) the contribution principle according to which social security funds are based on contributions owed by natural and moral persons, participating in the public system, social security rights accruing on the basis of paid contributions.”

Article 18

“ (1) Contributors to the public system are, as the case may be:

a) persons owing individual social security contributions;

b) employers; [ ... ]”

Article 164

“(1) For the determination of annual pension scores predating the entry into force of the present law [ ... ] salaries shall be taken into account [ ... ]

(2) For the determination of annual pension scores in addition to the salaries mentions in paragraph (1) supplements which were taken into account under previous legislation, shall also be taken into account [...]”

11. The relevant provisions of the Government Emergency Ordinance no. 4/2005 regarding the recalculation of pensions deriving from the former state pension system, repealed on 1 January 2011, read as follows:

Article 4

“(2) Bonuses, indemnities and increases of the basic salary which according to previous legislation were taken into account for the calculation of pensions [. . .] are those set out in the Annex [ ... ]”

Annex regarding the bonuses, indemnities and increases to be taken into account [ ... ]

“V. Permanent bonuses [ ... ]

- other bonuses with a permanent character provide d by the specific legislation of each activity field or collective or individual labour contracts [ ... ]”

“VI. Documents attesting these bonuses shall include:[ ... ]

- the name of the bonus, the percentage and amount awarded

- the duration and legal basis of the awarded bonus [ ... ]

Mention: The following shall not be taken into account in calculating [ ... ] pensions, as they were taken into account according to previous legislation:

- compensation in agreement or per unit [ ... ]”

12. The relevant legal provisions regulating the mechanism for the unification of the interpretation of a disputed legal text, namely the appeal in the interests of the law, are to be found in Articles 329-330 of the Romanian Civil Code of Procedure; the High Court ’ s interpretation of the legal provisions in question is binding on all the domestic courts once the High Court ’ s 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.

On 18 August 2009 , the Prosecutor General lodged an appeal in the interests of the law, seeking for an interpretation that would unify and clarify the alleged divergent case-law of the domestic courts on the issue of the calculation of pensions in relation to payments under the “global agreement” prescribed by Law no. 57/1974. Concomitantly, the High Court was seised with an identical request by the Management Board of the Craiova Court of Appeal.

On 16 November 2009 the High Court of Cassation and Justice dismissed the appeal, holding as follows:

“Taken together the provisions of Article 164 of Law no. 19/2000 and GEO no. 4/2005 establish the income that shall be taken into account for the calculation of pensions.

Thus, regarding periods before the entry into force of Law no. 19/2000, the transitory provisions of article 164 are applicable, which allow only the use of income which had been taken into account according to previous legislation.

On the other hand, regarding the recalculation of pension rights, point VI of the Annex to GEO no. 4/2005 states that income from global agreements is not taken into account for the calculation of the annual score, as it had not been taken into account by previous legislation.

Consequently, it is obvious that the relevant legal provisions are clear and unequivocal, there is no ambiguity in the legal text so as to allow the courts to solve the legal issue under consideration differently; the provisions of Article 329 of the Civil Procedure Code are thus not applicable.”

The High Court ’ s ruling was not published in the Official Gazette.

13. On 6 July 2011 , the Prosecutor General lodged another appeal in the interests of the law, seeking for a unified interpretation of the same legal provisions regarding the “global agreement” payments under Law no. 57/1974. It was submitted that in spite of the fact that the previous appeal in the interest of the law, lodged in 2009, was dismissed in so far as the legal provisions were considered unambiguous (see above), the domestic courts have continued to interpret and apply differently the impugned texts of law.

14. The appeal was this time allowed by the High Court of Cassation and Justice on 17 October 2011. The High Court held that compensation in “global agreement”, as a form of salary at the time, should be included in the calculation of pensions, provided that such payments were included in the salary and the corresponding social contributions were paid to the state budget. The High Court stated that the p rovisions included in the Annex VI of GEO no. 4/2005 which excluded the income from global agreement from the calculation of pensions were to be ignored, in so far as they contradicted the principles stated in Law no. 19/2000, which had a higher position in the normative hierarchy.

In its reasoning, publishe d in the Official Gazette on 22 November 2011, t he High Court considered that

“the issue of whether the respective social contributions were or were not paid to the state budget and whether the claimed compensation was or was not included in the salaries so as to be taken into account for the pension calculation was a factual matter that needed to be individually tuned to the relevant legislation, and not a matter of the interpretation of the law.

Thereby, a general and mandatory interpretation that would clarify the meaning of the law is necessary in the event of obscure or doubtful legal provisions.

However, a case-by - case interpretation is not caused by an unclear or obscure law; it involves applying the law to the particular circumstances of the case, attribution which belongs exclusively to the court sei z ed with the respective case.”

COMPLAINTS

15. The applicants complain that their right to a fair trial secured by Article 6 of the Convention has been infringed on account of the diverging solutions adopted by national courts in allegedly identical cases regarding whether or not the “global agreement” income should have been taken into account for the calculation of pensions. The judgments submitted by the applicants in substantiation of the existence of a divergent case-law on the matter are enumerated in the table appended hereto. The applicants contend that such judgments, spanning from 2007 to early 2011, confirm the existence of a widespread divergent case law before the courts of appeal across the country.

16. They further complain that the divergent solutions, allowing or, on the contrary, as in the applicants ’ case, dismissing identical pecuniary claims related to the pension calculation, also gave way to discrimination, in breach of Article 14 of the Convention and of Article 1 of Protocol No. 12 to the Convention.

17. The applicants also complain under Article 1 of Protocol No. 1 alone and taken together with Article 14 of the Convention that the favourable court decisions obtained by other retired persons, former colleagues in similar situations, created a legitimate expectation that they would also receive similar treatment and thus profit from an increased pension.

THE LAW

18. Given their similar factual and legal background, the Court decides that the applications should be joined.

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

19. 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 retirees 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:

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.”

20. The Court reiterates at the outset that it is not its task to take the place of the domestic courts. 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 Şahin and Perihan Şah in v. Turkey [GC], no. 13279/05 , §§ 49-50, 20 October 2011 ).

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, as d ivergences of approach may arise between the courts as part of the process of interpreting legal provisions while adapting them to the material situation. These divergences may be tolerated when the domestic legal system is capable of accommodating them (see among many other authorities, Albu and Others v. Romania , nos. 34796/09 and 63 other applications , §§ 34-38, 10 May 2012 ). Concomitantly, 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 (see Nejdet Şahin and Perihan Şahin v. Turkey , cited above, § 61).

21. Turning to the present cases, the Court firstly notes that the applicants are all retired persons who, following the change of the relevant legislation, asked that part of their permanent income earned throughout their employment be taken into account in the calculation of their pensions, whereas beforehand only the basic salary was taken into account.

They alleged that at a national level, while some of the courts of appeal or panels within a court of appeal found that such payments should not be included in the pension re-calculation process, some other courts of appeal or other panels within the same court of appeal, to which the applicants referred, considered that the “global agreement” income should be taken into consideration and thus the pensions increased. This situation started in 2007 and continued until the second appeal in the interests of the law was given, namely on 17 October 2011.

22. The Court observes at the outset that at a national level, the pension authorities constantly found that such payments should not be taken into account in the re-calculation of pensions. Furthermore, the Court notes that the disputed matter was not determined by the existence of ambiguous legal provisions, but rather by the application of the relevant legislation to the individual facts of each case (see paragraph 14 above).

23. Therefore, the Court considers that the legal issue raised by the present cases does not relate to a conflicting case-law per se , but rather to a situation where domestic courts gave 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).

In this context, the Court also notes the existence of the two subsequent appeals in the interests of the law (see paragraphs 12-14 above) called to unify the interpretation of the legal texts disputed in the present cases; while the first appeal in the interests of the law was dismissed, as the impugned texts of law were considered by the highest court to be unambiguous, due to the persistence of varying decisions given by the domestic courts around the country in similar cases, the second one was allowed two years later. In it, the High Court considered that the various interpretations of the courts derived not from the existence of an obscure legal text, but from the manner in which those courts applied the law to the individual circumstances of the cases brought before them.

24. The Court notes that in such an important and complex area as social security, frequent legislative changes may result in a somehow incoherent approach. However, in the present cases the applicants did not allege a general lack of legal certainty deriving from an incoherent legislation (see, conversely, Maria Atanasiu and Others v. Romania , nos. 30767/05 and 33800/06 , § 221, 12 October 2010). The applicants merely complained of the manner in which their cases were assessed by the domestic courts in the application of the relevant legal provisions.

While it is true that the situation the applicants complained of lasted for approximately four years, it cannot be overlooked that within this timeframe, the High Court of Cassation and Justice gave two consequent rulings on the matter, pinpointing each time to the fact that the determinative problem was not the law itself, but rather how each court assessed the facts of each case and consequently applied the law in force at the relevant time. The Court therefore estimates that the Romanian highest court reacted appropriately, giving unequivocal guidelines to the domestic courts in their assessment of the individual cases brought before them (see also Albu and Others v. Romania , cited above, § 38).

25. Furthermore, the Court notes that all the applicants in the present cases had the benefit of adversarial proceedings, in which they were able to adduce evidence as they estimated necessary, 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.

From that perspective and having regard to all the above-mentioned considerations, the Court considers that the applicants ’ complaint relating to the divergent case-law is manifestly ill-founded and should be dismissed as inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

26. 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. Other alleged violations

27. The applicants also raised further complaints under Article 1 of Protocol No. 1 and Article 1 of Protocol No. 12 to the Convention (see paragraphs 11-12 above).

28. The Court, having examined the remainder of the applicants ’ complaints, considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the applications must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Marialena Tsirli Alvina Gyulumyan Deputy Registrar President

Appendix

No .

Application No .

Lodged on

Applicant

Date of birth

Place of residence

Represented by

Final judgment, domestic file number

Diverging case ‑ law invoked by the applicants

28699/09

27/05/2009

Stana NEGHEA

13/04/1926

Craiova

Manuela GORNOVICEANU

Craiova Court of Appeal,

28 November 2008, file no . 9645/63/2008

Judgments given by the Craiova Court of Appeal on 22 October 2008, 13 November 2008, 4 December 2008, 12, 25 and 26 March 2009

2.

43171/09

04/08/2009

Ioana DOCA

13/09/1933

Craiova

-

Craiova Court of Appeal,

13 March 2009,

file no. 9619/63/2008

Judgments given by the Craiova Court of Appeal on 22 October 2008, 4 December 2008 and 15 June 2009

Judgments given by the Bucharest Court of Appeal on 30 May 2007, by the Cluj Court of Appeal on 23 April 2008 and by the Alba Iulia Court of Appeal on 11 September 2008

3.

22179/10

12/04/2010

Petru ZMEU

11/06/1943

Focsani

-

Galaţi Court of Appeal,

20 October 2009, file no. 900/91/2009

Judgments given by the Bucharest Court of Appeal on 27 May, 23 and 24 June 2009

4.

33426/10

01/06/2010

Frantz KRIEGER FALCUSAN

06/01/1944

Arad

-

TimiÅŸoara Court of Appeal, 28 April 2010, file no. 638/108/2009

Judgments of the Timisoara Court of Appeal of 24 February 2009 and 27 November 2009; judgment given by the Bucharest Court of Appeal on 8 November 2007 and by the Bucharest County Court on 21 January 2010

5.

38839/10

30/06/2010

Nicolae ROÅžIANU

18/11/1943

Craiova

Paraschiva ROSIANU

Craiova Court of Appeal,

16 February 2010, file no. 9395/63/2009

Judgments given by the Craiova Court of Appeal on 22 October 2008, 14 May 2009 and 24 February 2010

Judgments given by the Bucharest Court of Appeal on 30 May 2007, by the Cluj Court of Appeal on 23 April 2008 and by the Alba Iulia Court of Appeal on 11 September 2008

6.

1734/11

20/12/2010

Francisca POPA

27/02/1939

Brasov

Mihai CARAPCEA

BraÅŸov Court of Appeal,

5 July 2010, file no. 149/62/2010

Judgments given by the BraÅŸov Court of Appeal on 23 February, 27 May and 22 October 2010

7.

23818/11

01/04/2011

Margareta POPESCU

10/03/1943

Iasi

IaÅŸi Court of Appeal,

1 October 2010, file no. 8558/99/2009

Judgments given by the IaÅŸi Court of Appeal on 18 June 2008, 17 March 2009, 30 June 2009, 13 and 27 October 2009, 22 February 2011 and by the BraÅŸov Court of Appeal, on 16 September 2010