- Court of Appeal of Târgu Mure?
C.A., a high school teacher, brought a claim against her school before the Tribunal of Mure?, alleging that by denying her request to continue working until the age of 65, the school had breached the principle of equal treatment between men and women in regard of retirement age.
The Tribunal of Mure? upheld the applicant’s request. The Tribunal held that the domestic provision that established a different retirement age for men and women (Art. 41 of Law No. 19/2000) was discriminatory. Under the national measure, women are not free to choose whether to take advantage of the earlier retirement opportunity or not. Women must retire at specified age (60 years), five years earlier than men employees, unless their employer upholds a request to continue the contract. The Tribunal found this measure to violate the right to work of women who do not wish to retire earlier and cannot secure their employer’s consent. In addition, the Tribunal held that this provision is discriminatory and contrary to the principle of equal opportunities and treatment between men and women found in Art. 16(2) of the Constitution and Article 14 ECHR.
Upon appeal, the Court of Appeal of Târgu Mure? overturned the sentence of the Tribunal and dismissed the claim of the applicant. The Court of Appeal recalled the precedent of the Romanian Constitutional Court No. 191/2008 and 1707/2008, in which the challenged provision had been declared to be compatible with the Constitution, with Art. 14 ECHR and with the Directive 79/7/CEE on the progressive implementation of the principle of equal treatment between men and women. In the Constitutional Court’s view, the principle of equality does not require necessarily uniform treatment of men and women, providing the legislator with the power to treat them differently in light of the social circumstances. The Constitutional Court has held in its precedents that Directive 2006/54 excludes the fields of social security from the application of the principle of equality (Decisions No. 818-821/2008 and No.1325/2008)
As such, the Court of Appeal of Târgu Mure? criticized the Tribunal of Mure? for setting aside the applicable domestic rules, in favour of judge-made principles or rules inferred from other regulatory acts, in contravention with the instructions laid down by the Constitutional Court.
- Court of Appeal of Bucharest
The Court of Appeal of Bucharest concluded in the opposite way in similar proceedings. It based its decision on the CJEU’s interpretation in Marshall case of Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions, (replaced by Directive 2006/54/EC). In Marshall, the CJEU held that a general policy whereby a woman’s employment is terminated solely because she has attained the pensionable age, that age being different for men and for women, constitutes discrimination on grounds of sex under the Directive. In keeping with this dictum, the Court of Appeal of Bucharest set aside the domestic statute to grant effect to Directive 2002/73/EC. It condemned the employer and ordered the reinstatement of the employee and the payment of damages.