Communicated on 18 December 2014

THIRD SECTION

Application no . 42700/13 Manole LUPU against Romania and 4 other applications (see list appended)

STATEMENT OF FACTS

THE FACTS

The applicants are Romanian nationals. The ir n ames and dates of birth are mentioned in the annexed table .

A. The circumstances of the cases

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

All applicants are parents of twin s who were born between 2006 and 2009. They benefited from a sole maternity allowance for their twins.

They did not contest the administrative decisions by which a single maternity allowance was granted as a ccording to Government Emergency Ordinance no. 148/2005 (“G.E.O. no. 148/2005) concerning the granting of maternity allowances it was not possible for parents of twin s to receive a maternity allowance for each child.

On 10 June 2009 the ordinance was amended. The new legislation stipulated that a maternity allowance should be awarded to each child resulting from a multiple pregnancy.

Noting the divergent case-law resulting from the interpretation of the ordinance, before its amendment, in 2011 the HCCJ delivered a ruling on an appeal in the interests of law by which it gave a new interpretation to the initial ordinance (see below) .

Following the delivery by the HCCJ of its decision, which recognised a retroactive right to maternity allowance for each child born from a multiple pregnancy between 1 January 2006 and 17 June 2009, the applicants considered themselves eligible to retroactively receive a maternity allowance for each of their twins. They lodged therefore requests with the competent administrative authorities for the retroactive payment of maternity allowances for their second child.

The administrative authorities dismissed their requests. The applicants challenged the administrative decisions. They lodged complaints with the competent courts.

The domestic courts dismissed the applicants ’ action s as time-barred. They held that the applicants had been aware of the administrative decision s and had not challenged them within the statutory time-limit .

1. Application no 42700/13

The applicant is a father of twins born on 18 August 2007. By an administrative decision of 16 September 2007 the Teleorman Agency for Social Benefits awarded only one maternity allowance for both children. The applicant and his wife lodged a request with the issuing authority for a new decision by which a maternity allowance for each twin child be granted. On 9 September 2009 they received a letter from the Ministry of Labour, Family and Equality of Chances informing them that their request had been dismissed as the decision of 16 September 2007 had been issued in accordance with the applicable legislation.

After the delivery by the HCCJ of its decision in 2011, the applicant and his wife brought civil proceedings seeking to retroactively obtain the award of a maternity allowance for their second child for the period between 1 September 2007 (the date on which the mother of the twins entered in maternity leave) and 17 June 2009 (the date on which G.E.O. 148/2005 was amended by Law 239/2009).

On 28 June 2012 the Teleorman County Court allowed their action. It held that they were entitled to the retroactive payment of a maternity allowance for their second child. It bas ed its judgment on Decision no. 26/2011 of the HCCJ. It dismissed the objection ra ised by the Teleorman Agency for Social Benefits that the applicants did not comply with the statutory time-limit noting that the HCCJ had acknowledged a retroactive right to a maternity allowance of each child born from a multiple pregnancy.

The judgment was appealed by the administrative entity. B y a final decision of 28 March 2013, the Bucharest Court of Appeals dismissed the applican t s ’ action as they had not challenge d the administrative decision of 2007.

2. Application no. 76773/13

The applicant is a mother of twins born on 28 June 2006. By a decision of 30 Decembe r 2006, the Prahova Ag ency for Social Benefits awarded the applicant maternity allowance only for one child and by a decision of 1 July 2008 it prolonged the allowance.

According to the applicant the first decision was never communicated to her and the second decision was communicated only on 8 December 2011.

The applicant challenged the second decision on 19 December 2011. The Prahova Agency for Social Benefits r ejected the applicant ’ s request.

On 9 February 2012 the applicant lodge d a civil action with the Prahova County Court seeking the annulment of the decision of 1 July 2008. She also requested the retroactive payment of a maternity allowance for each of her twin children.

On 1 November 2012 the county c ourt dismissed the applicant ’ s action on the ground that she had not complied with the statutory tim e-limit. The applicant appealed. On 4 June 2013 the Ploiesti Court of Appeal dismissed the applicant ’ s appeal, upholding the judgment of the court of first instance.

3. Application no. 13438/14

The applicant is a mother of twins born on 26 August 2006.

On 13 October 2006 the NeamÈ› Agency for Social B enefits issued a decision by which it granted a sole maternity allowance for both children. The applicant did not challenge this decision.

After the delivery by the HCCJ of its decision in 2011, the applicant made a new request for the retroactive payment of a maternity allowance for her second child.

On 11 October 2012 the NeamÈ› Agency for Social Benefits dismissed her request on the ground that the decision of the HCCJ on an appeal in the interests of law was not binding on administrative entities but on judicial courts.

The applicant brought civil proceedings against the agency with the competent court. On 15 November 2013 the Bacau Court of Appeal dismissed the applicant ’ s claim on the ground that she had not challenged the decision of 13 October 2006 and that the decision delivered by the HCCJ on an appeal in the interests of law had no retroactive effect.

4. Application no. 35275/14

The applicant is a mother of twins born on 24 February 2007. O nly one maternity allowance was awarded by an adm inistrative decision of 13 July 2007.

The applicant lodged proceedings in 2011, seeking to retroactively obtain the award of maternity allowance for the second child born from the twin pregnancy for the period between 1 June 2007 and 24 February 2009.

By a judgment of 28 May 2012 the Cluj County Court admitted in part the request and granted the maternity allowance for the period between 22 November 2008 and 24 February 2009. It dismissed the request for maternity allowance for the period between 1 June 2007 and 21 November 2008 on the ground that the applicant did not comply with the statutory time-limit .

Both parties lodged an appeal. By a decision of 28 October 2013 the Cluj Court of Appeal admitted the applicant ’ s appeal. The Court of Appeal considered that the limitation period started from the publication in the Official Journal of the Decision no. 26/ 2011 of the HCCJ. Therefore, it set aside the judgment and sent the case file back to the Cluj County Court for its examination on the merits.

The Cluj County Court granted the maternity allowance for the entire period requested by the applicant. The Cluj Agency for Social Benefits lodged an appeal, invoking that the applicant had not submitted her request within the statutory time-limit.

By a final decision of 28 October 2013, the Cluj Court of Appeal allowed the agency ’ s appeal and dismissed the applicant ’ s claim for the whole period , including the period for which she was initially awarded the allowance ( 22 November 2008 and 24 February 2009). The appellate court raised of its own motion an objection that the applicant had not challenged the administrative decision of 13 July 2007.

It appears from the file that this objection was not put under the debate of the parties at any stage of the proceedings.

On 17 December 2013 the applicant filed a request with the Cluj Court of Appeal to receive a copy of the final decision. She received the copy on 19 December 2013.

The applicant lodged an extraordinary appeal (“ revizuire ”), claiming that the Cluj Court of Appeal awarded to the other party more than it requested. On 3 March 2014 the appeal was rejected by a three judge panel, including two of the judges who had examined the second appeal. The applicant ’ s request to have her extraordinary appeal examined by other judges was rejected.

5. Application no. 52313/14

The applic ant is a mother of twins born on 16 January 2008 . On 15 April 2008 the Argeș County Agency for Social Benefits issued an administrative decision by which it granted a sole maternity allowance for both children. The applicant challenge d this decision before the Arge ș County Court. By a judgment delivered on 13 November 2009 the county court allowed her claim and granted a maternity allowance for each of the twins. It dismissed the agency ’ s objection that the applicant had not observed the statutory time-limit for challenging the administrative decision.

The agency appealed. On 31 March 2010 t he Piteș ti Court of Appeal allowed the appeal and dismissed the applicant ’ s claim holding that the applicant had not followed the prior procedure for challenging administrative decisions set out in Law 554/2004. Moreover, it noted that the administrative decision had been issued in accordance with the applicable law at that time. The amendments brought to G.E.O. 148/2005 in 2009 could not be applied with retrospective effect.

Following the delivery by the HCCJ of its decision 26/2011 in the appeal in the interest of law, on 18 July 2012 the applicant brought civil proceedings against ArgeÈ™ County Agency for Social Benefits , seeking to be paid the allowance for the second child for the period between 27 February 2008 and 18 June 2009.

By a final judgme nt of 21 January 2014, the Piteș ti Court of Appeal dismissed the applicant ’ s claim holding that a similar claim had been dismissed by its decision of 31 March 2010.

B. Relevant domestic law and practice

1. The Government Emergency Ordinance no. 148/2005

Emergency Ordinance no. 148/2005 provided that the parents who had obtained taxable income in the last twelve months before the birth of their child/children were entitled to receive a maternity allowance for each birth.

Article 3 (1) of the Methodological norms for the application of the ordinance, adopted by Government Decision no. 1025/2006, defined birth as the process that lead to the production of one or more than one alive offspring . The norms did not make any difference between a normal and a multiple birth.

On 10 June 2009 Law no. 239/2009 amended Article 2 of the ordinance expressly providing for a maternity allowance amounting to 600 Romanian lei (approximately 150 euros) for each child born from a multiple pregnancy.

2. Law no. 554/2004 regulating administrative proceedings

Article 7 of Law no. 554/2004 provides that normative administrative acts may be challenged anytime, while unilateral administrative acts may be challenged within thirty days from the date they were notified. In any case, a unilateral administrative act may not be challenged later than six months from the date it was issued.

3. Decision no. 26/2011 of the High Court of Cassation and Justice

A divergent case-law emerged across the country concerning the granting of maternity allowances for children born from multiple pregnancies between 1 January 2006 and 10 June 2009.

In order to ensure the uniform interpretation and application of law, the Prosecutor General applied to the HCCJ, in accordance with the provisions of Article 329 of the Romanian Code of Civil Procedure.

In a decision delivered on 14 November 2011 and published in the Official Gazette on 10 January 2012, the HCCJ confirmed the existence of a divergence in the case-law concerning t he interpretation of G.E.O. no. 148/2005, on granting maternity allowances for children born from multiple pregnancies. It recognised a retroactive right to maternity allowance for each child born from a multi ple pregnancy between 1 January 2006 and 17 June 2009.

4 . The Romanian Code of Civil Procedure

Article 329 of the code, as in force at the relevant time, stipulated that the interpretation of the law provided by the High Court of Cassation and Justice in an appeal in the interests of the law was binding on all the domestic courts.

COMMON COMPLAINTS

The applicants complain under Article 6 § 1 and Article 1 of Protoco l No. 1 to the Convention alone or in conjunction with Article 14 of the Convention that the proceedings brought by them after the High Court of Cassation and Justice had delivered its decision on the appeal in the interests of law were unfair, in so far as the domestic courts wrongfully dismissed their claims relating to the maternity allowances for their second child born from a twin pregnancy and had not taken into consideration the binding effect of the interpretation given by the highest court in this respect and the fact that most of other courts allowed similar claims. They alleged that they had been wrongfully deprived of their right to the allowances in question and discriminated against in comparison with other parents of children born from multiple pregnancies who had been awarded the allowances.

CASE SPECIFIC COMPLAINTS

The applicant in the fourth application (no. 35275/14) raised complaints under Article 6 § 1 of the Convention about the alleged unfairness of the proceedings. She alleges in particular that:

( i ) she was unable to make submissions in respect of the objection of lack of prior complaint , as that objection was raised by the Cluj Court of Appeal of its own motion in its final decision of 28 October 2013 ; and,

(ii) the court which examined her extraordinary appeal was not impartial as two of the judges who had delivered the decision in the second appeal also examined her extraordinary appeal against this decision.

COMMON QUESTIONS

1 . Was the principle of legal certainty, as developed in the Court ’ s case ‑ law in the interpretation of Article 6 of the Convention, complied with by the domestic courts?

Have the applicants had a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention taken alone or in conjunction with Article 14 of the Convention, in so far as similar actions before the domestic courts, concerning the award of maternity allowances to parents of children born from multiple pregnancies, had different outcomes?

Taking into account the coexistence of conflicting final decisions delivered by the domestic courts having competence to rule on appeals on points of law on identical claims, does the national law offer an effective mechanism able to resolve such inconsistencies?

The Government are also invited to submit the full text of the reasoned final decisions delivered in similar cases.

2 . Has there been an interference with the applicants ’ peaceful enjoyment of possessions, within the meani ng of Article 1 of Protocol No. 1?

3 . Have the applicants been subject to discriminatory treatment contrary to Article 14 of the Convention, in conjunction with Article 1 of Protocol No. 1, considering that other parents of twin s have had the right to benefit from maternity allowance for each child recognised by final judicial decisions?

CASE SPECIFIC QUESTIONS

Did the applicant in the fourth application ( no. 35275/14 ) have a fair heari ng in the determination of h er civil rights and obligations , in accordance with Ar ticle 6 § 1 of the Convention taking into account in particular that:

( i ) she did not have the opportunity to express her position in connection with the objection of lack of prior complaint raised by the court of its own motion , for the first time in appeal;

(ii) two of the judges who had delivered a decision in the second appeal had examined the extraordinary appeal lodged against this decision?

APPENDIX

No.

Application no.

Lodged on

Applicant

Date of birth

1.

42700/13

2 July 2013

Lupu Manole

13 April 1977

2.

76773/13

5 December 2013

Fieraru Nicoleta Vasilica

3 December 1970

3.

13438/14

12 March 2014

Apostol Ramona Denisa

5 October 1980

4.

35275/14

12 May 2014

Muresan Simona

12 July 1973

5.

52313/14

21 July 2014

Ionescu Iuliana

3 December 1980