FOURTH SECTION
DECISION
Application no. 45594/19
Árpád-Sándor ASZTALOS and Others against Romania
and 2 other applications
(see list appended)
The European Court of Human Rights (Fourth Section), sitting on 5 March 2024 as a Committee composed of:
Tim Eicke, President,
Armen Harutyunyan,
Ana Maria Guerra Martins, judges,
and Crina Kaufman, Acting Deputy Section Registrar,
Having regard to:
the applications against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. At the time of the lodging of the application, the individual applicants were employees of the Veterinary Health and Food Safety Directorate (“the VHFSD”) in Covasna (first application); of the Dâmboviţa VHFSD (second application), and of the Vâlcea VHFSD (third application). The trade unions having initiated the domestic proceedings in the name of the individual applicants of the second and the third applications are also applicants to the Court in those applications, respectively, as listed in the appended table.
2. Under Law no. 153/2017 regulating the public salaries framework 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. The VHFSD subsequently awarded some of its employees the allowances corresponding to dangerous working conditions; however, the applicants were excluded, following which they initiated domestic proceedings. The applicants in the third application also claimed an additional salary increase of 12,5% in relation to their activity as inspectors.
3. Their claims were finally dismissed: on 20 March 2019 by the Brașov Court of Appeal (first application); on 2 April 2019 by the Ploiești Court of Appeal (second application) and on 6 May 2021 by the Pitești Court of Appeal (third application). The courts of appeal found that pursuant to the relevant law, such allowances were to be awarded in exceptional cases limited to employees whose salaries had reached a specific level as set out in the Law.
4. 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.
5. In its judgment on the appeal in the interests of the law (judgment no. 27/2020 of 26 October 2020), the High Court of Cassation and Justice (HCCJ) established that the allowances were to be granted as prescribed by Law no. 153/2017, namely in connection with progressive levels of salaries. The HCCJ confirmed that the provisions were discriminatory but considered that in so far as that discrimination had been created by the law, the judiciary authorities were not in a position to remedy it by issuing individual decisions contradicting the legal provisions. Furthermore, the HCCJ noted that a draft law, aimed at granting allowances to all employees working in difficult conditions, was pending in the legislative procedure before Parliament. The draft law mentioned by the HCCJ 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.
6. The applicants complained, under Article 6 § 1 and Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, of discrimination due to the conflicting judicial practice of the domestic appellate courts, having regard to the fact 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
7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
8. 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 Petrescu and Others v. Romania ((dec.), nos. 31390/18 and 9 others, § 55, 7 March 2023).
9. The Court finds 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. Following that appeal, in its judgment no. 27/2020 of 26 October 2020, the HCCJ established that the allowances were to be granted in accordance with Law no. 153/2017, that is, in connection with progressive levels of salaries. In accordance with the domestic law, the HCCJ’s interpretation of the legal provisions in question is binding on all the domestic courts only after the publication of the HCCJ’s extensive decision in the Official Gazette. A decision delivered on an appeal in the interests of the law cannot alter the outcome of cases already decided.
10. 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 until late 2020, when the HCCJ’s decision establishing that the allowances were to be granted in the manner prescribed by Law no. 153/2017 was adopted), with the result that the divergence was accommodated (see Petrescu and others, cited above, § 60). Although the judgments dismissing the applicants’ claims in the first two applications were given before the HCCJ had had the opportunity to give a uniform interpretation of the legal texts in issue, 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.
11. All the applicants had the benefit of adversarial proceedings, in which they were able to adduce evidence, and 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.
12. Finally, the Court notes that, as regards the trade unions applicants in the second and third application, their complaints are incompatible ratione personae, since they concern rights of the individual employees (Kalfagiannis and Pospert v. Greece (dec.), no. 74435/14, §§ 49-51, 9 June 2020).
13. The Court 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, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 28 March 2024.
Crina Kaufman Tim Eicke
Acting Deputy Registrar President
Appendix
List of cases
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
45594/19
Asztalos and Others v. Romania
23/08/2019
Árpád-Sándor ASZTALOS
1969
Sfântu Gheorghe
Romanian
Vilmos BALÓ
1979
Sfântu Gheorghe
Romanian
Tünde BARTALIS
1981
Sânzieni
Romanian
Botond BENKŐ
1980
Sfântu Gheorghe
Romanian
Zsolt-István BLAGA
1969
Arcuş
Romanian
Árpád BODONI
1957
Sfântu Gheorghe
Romanian
Zoltan BOTA
1959
Sita Buzăului
Romanian
Emőke CSEH
1978
Sfântu Gheorghe
Romanian
András Bertalan HENCS
1976
Catalina
Romanian
Ana Maria JÓZSA
1971
Sfântu Gheorghe
Romanian
Zsigmond KÉSZ
1962
Valea Crişului
Romanian
Irina KOCSIS
1960
Sfântu Gheorghe
Romanian
Zsuzsánna KÖVESDI
1981
Breţcu
Romanian
Elena MUNTEAN
1965
Sfântu Gheorghe
Romanian
Tünde NÉMETH
1969
Târgu Secuiesc
Romanian
Daniela-Alina OLTEANU
1978
Bucureşti
Romanian
Csaba ÖRSI
1979
Sfântu Gheorghe
Romanian
Botond PÁLL
1980
Târgu Secuiesc
Romanian
Raluca Cornelia POPESCU
1977
Sfântu Gheorghe
Romanian
Mária-Rozália SIPOS
1975
Sfântu Gheorghe
Romanian
Silvia SZÁNTÓ
1978
Valea Crişului
Romanian
Annamária SZÁSZ
1981
Sfântu Gheorghe
Romanian
Csaba-József SZOTYORI
1969
Baraolt
Romanian
Lóránd TUSA
1972
Sfântu Gheorghe
Romanian
Iulian Dragomir RUSU
2.
49728/19
Sindicatul Liber al Veterinarilor Dâmbovița and Others v. Romania
18/09/2019
SINDICATUL LIBER AL VETERINARILOR DÂMBOVIȚA
2001
Târgoviște
Romanian
Doinița BĂDAN
1960
Târgoviște
Romanian
Daniel BADEA
1978
Târgoviște
Romanian
Luci BADEA
1962
București
Romanian
Ileana BĂILĂ
1968
Târgoviște
Romanian
Nicușor BĂJENARU
1963
Vulcana Băi
Romanian
Nicolae BĂLĂCEANU
1975
Târgoviște
Romanian
Victor-Florin BRATU
1969
Găești
Romanian
Ioana BUCUR
1990
Brănești
Romanian
Claudia-Mirela CHIRAN
1966
Târgoviște
Romanian
Dan-Marian CHISALAU
1969
Meri
Romanian
Ion-Liviu COBIANU
1970
Braniștea
Romanian
Iulia COBIANU
1967
Braniștea
Romanian
Anuș-Nicolae CONSTANTIN
1961
Târgoviște
Romanian
Gilda CONSTANTIN
1962
Târgoviște
Romanian
Stelian-Constantin ENE
1969
Târgoviște
Romanian
Cătălina-Mariana ȘERPOIU
1972
Bucșani
Romanian
Violeta FIERARU
1964
Găești
Romanian
Răzvan ȘILLO
1976
Moreni
Romanian
Ileana ION
1968
Meri
Romanian
Mihaela IORDACHE
1974
Dragodănești
Romanian
Sonel-Constantin IORDACHE
1966
Laicăi
Romanian
Elena IUȚALIM
1975
Priboiu
Romanian
Gabriela IVAȘCU
1959
Târgoviște
Romanian
Simona-Mariana LICHE
1980
Piersinari
Romanian
Marius-Andrei MĂNESCU
1980
Fieni
Romanian
Mihai-Cristian MĂRGĂRIT
1981
Târgoviște
Romanian
Minodora MATEI
1971
Găești
Romanian
Mirela-Tatiana MIHAI
1960
Comisani
Romanian
Maria-Bianca MIHAIU
1975
Râu Alb de Jos
Romanian
Brăduț-Bogdan MINEA
1979
Târgoviște
Romanian
Constantin MORARU
1959
Mănești
Romanian
Niculae NĂSTĂSESCU
1953
Pucioasa
Romanian
Marius Ion NEGOI
1966
Cândești Vale
Romanian
Carolina NICOLAE
1970
Găești
Romanian
Elena NICORICI
1960
Târgoviște
Romanian
Adrian-Cristinel NIȚU
1978
Târgoviște
Romanian
Ion OPRESCU
1972
Târgoviște
Romanian
Daniela PĂDUROIU
1968
Târgoviște
Romanian
Emilia-Neluța PATRAULEA
1968
Dealu Mare
Romanian
Silvia POP
1964
Butimanu
Romanian
Florinel POPA
1973
Călărași
Romanian
Adriana-Manuela PREDA
1980
Târgoviște
Romanian
Mihaela PREDA
1979
Târgoviște
Romanian
Vasile-Darie RADU
1967
Pietrosani
Romanian
Cristina RĂDULESCU
1964
Târgoviște
Romanian
George-Bogdănel ROȘU
1970
București
Romanian
Florina SAMOILESCU
1964
Târgoviște
Romanian
Maria SFETCU
1964
Târgoviște
Romanian
Anișoara STAVARACHE
1969
Manga
Romanian
Laurențiu STOICA
1965
Comisani
Romanian
Ionuț TOBOȘARU
1979
Valea Voievozilor
Romanian
Virginia TUDORACHE
1964
Târgoviște
Romanian
Dumitru UȚINA
1966
Gheboaia
Romanian
Camelia-Larisa UNGUREANU
1964
Gemenea-Brătulești
Romanian
Maria-Cocuța UNTARU
1967
Geangoești
Romanian
Claudiu-Teodor VASZIL
1971
Ploiești
Romanian
Bogdan VEDEANU
1978
Comisani
Romanian
Anuș-Nicolae CONSTANTIN
3.
55175/21
Sindicat Sinvet and Others v. Romania
29/10/2021
SINDICAT SINVET
2004
Râmnicu Vâlcea
Romanian
Mărioara ANDRONIE
1960
Râmnicu Vâlcea
Romanian
Elena-Gabriela BĂLTEANU
1969
Râmnicu Vâlcea
Romanian
Viorica BOROMIZ
1968
Râmnicu Vâlcea
Romanian
Elena-Cristina BUȘU
1976
Râmnicu Vâlcea
Romanian
Horatiu-Iuliu DORCA
1957
Râmnicu Vâlcea
Romanian
Maria GEORGESCU
1959
Bârsești
Romanian
Daniela GLONȚ
1972
Râmnicu Vâlcea
Romanian
Ionela IONESCU
1990
Râmnicu Vâlcea
Romanian
Camelia ȘOMANDRĂ
1962
Râmnicu Vâlcea
Romanian
Georgiana-Celesta PATRU
1972
Călimănești
Romanian
Camelia POPESCU
1972
Bărbătești
Romanian
Clara-Cristina RĂDULESCU
1975
Râmnicu Vâlcea
Romanian
Elena SIMION
1964
Bujoreni
Romanian
Liliana STANCIU
1970
Gura Văii
Romanian
Simona-Olguta STANESCU
1965
Fedeleșoiu
Romanian
Daniela-Lenuța BADEA