• 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.

Given the uncertainty of higher courts, the ordinary courts seized with similar disputes in the future can raise a preliminary question to the CJEU asking whether the provisions at stake are compatible with Directive 2006/45 (now superseding Directive 2002/73).

The claimant whose claim was rejected by the Court of Appeal of Târgu Mure? could bring a claim before the ECtHR for the Romanian courts’ failure to implement the Convention.

The lack of consensus of the national appellate courts, might determine the legislator to intervene and correct the dissenting interpretation of the law given by the national courts.
The need of legislator intervention was also stressed by the Polish high courts, confronted with the same legal problem. Adopting a similar opinion as the Court of Appeal of Bucharest and the Tribunal of Mures, the Polish Supreme Court and the Constitutional Tribunal encouraged the ordinary courts to disregard the legal provisions on retirement age differential, even in the absence of a new law. In this sense, the Polish Constitutional Tribunal expressly called the legislator to intervene and amend the law in line with the established jurisprudence (see: Constitutional Tribunal of Poland, Judgment K 63/07 of 15 July 2010).

The Court of Appeal of Bucharest invoked Marshall case, to justify the disapplication of the national law. The Court noted that in line with the CJEU reasoning in Marshall, a national policy under which a woman’s employment contract is terminated solely because she attained the pensionable age, that age being different for men and for women, constitutes discrimination on grounds of sex and is contrary to the Directive.