In brief

  • The Constitutional Court rejected, unanimously, as unfounded, the objection through which two retired magistrates challenged the rule that cuts 85% of their pension for as long as they are called back into office. Rejected as unfounded means that, unlike a rejection as inadmissible, the Court went into the merits and said the text complies with the Constitution.
  • The provision under challenge, the final sentence of Article 83(3) of Law no. 303/2004, had a single sentence: „During the reinstatement, the amount of the pension is reduced by 85%.” It applies only to former judges, prosecutors and assistant magistrates brought back into office without a competitive examination, at courts and prosecutor’s offices that cannot function for lack of staff. A retired magistrate who works anywhere else keeps the whole pension.
  • Law no. 303/2004 has been repealed since 16 December 2022, but the rule has not disappeared: the same sentence, with the same figure, sits today in Article 216(2) of Law no. 303/2022. The decision therefore concerns living law, even though the text it reviewed had not been in force for 1,159 days on the date of the ruling.
Act: Decision of the Constitutional Court no. 131 of 17 February 2026 on the objection of unconstitutionality of the provisions of the final sentence of Article 83(3) of Law no. 303/2004 on the status of judges and prosecutors
Published: Official Gazette of Romania (Monitorul Oficial) no. 772 of 11 September 2026
In force from: 11 September 2026, the date of publication

A judge or a prosecutor who retires and is called back to the court where they used to work is left, for the whole period of the reinstatement, with 15% of their pension. Decision no. 131 of 17 February 2026, published in Official Gazette of Romania no. 772 of 11 September 2026, confirms that this rule complies with the Constitution and rejects unanimously the objection raised in two cases challenging pension decisions. In the same sitting of 17 February 2026, the Court also delivered Decision no. 132/2026, on the supervision of trainee prosecutors, published a day earlier and also on Law no. 303/2004, the difference being that there it refused to go into the merits, while here it did.

To see what is at stake, the rule has to be placed next to the one that precedes it. Article 83(2) of the same law said that judges and prosecutors who have retired may combine their service pension with income from any professional activity, „whatever the level of that income”. A former judge who becomes a lawyer, a professor or a legal adviser draws the pension in full. The next paragraph, (3), governed something else: the return to the judiciary. Former judges, prosecutors and assistant magistrates could be reinstated without a competitive examination, by the relevant section of the Superior Council of Magistracy, at the courts or prosecutor’s offices where they had been entitled to serve until retirement and which could no longer function normally for lack of staff. The appointment was made by the President of Romania for judges and prosecutors, and by the Superior Council of Magistracy for assistant magistrates. And the final sentence, the only one to reach the Court, cut 85% of the pension for the whole period of the reinstatement.

In figures, the difference looks like this: on a service pension of 10,000 lei, someone who returns to the court receives the salary of the office plus 1,500 lei of pension, while someone who opens a law practice receives their fees plus 10,000 lei. The reduction is not a ban on combining the two, it is a price put on a single type of combination, that between the service pension and a magistrate’s salary.

The objection came by two routes, joined at the Court. The first author, Adrian Toporăscu, raised it before the Botoșani Tribunal, First Civil Division, in a case challenging the pension decision issued by the Botoșani County Pension House; the court referred the matter to the Constitutional Court by interlocutory order of 15 September 2020, and the case received the number 1.812D/2020. The second author, Patricea-Lorela Soare, raised it before the Dâmbovița Tribunal, First Civil Division, also in a challenge to a pension decision, this time of the Argeș County Pension House; the referral dates from 19 September 2023, and the case received the number 210D/2024. The Court joined them of its own motion, under Article 53(5) of Law no. 47/1992, to the case registered first.

The authors advanced three arguments in essence. That a reduction of 85% is so large that it is no longer a reduction but the abolition of the service pension for the duration of the reinstatement. That the pension is a right earned for work done in the past, comparable to possessions, and that it follows from the case-law of the European Court of Human Rights that the right to a pension and the right to a salary can be treated as property rights. And that the rule breaches equality before the law, because a cut that severe was legislated only for magistrates who retire and are then reinstated, and not for the other categories that receive service pensions and continue to work. The constitutional grounds invoked were Article 16(1), Article 41(1), Article 44(1), Article 47(2), Article 135(2)(f) and Article 147(4).

The two courts that referred the matter took opposite views. The Botoșani Tribunal considered the text unconstitutional, on the ground that a service pension is a right earned and comparable to private property, and that a reduction applied only to one category of persons in similar situations would be discrimination within the meaning of Article 14 of the European Convention on Human Rights. The Dâmbovița Tribunal considered the objection unfounded. The presidents of the two Chambers of Parliament, the Government and the Ombudsman sent no point of view.

The Public Ministry asked for the objection to be rejected, pointing out that the issue had already been settled by Decision no. 381 of 4 July 2023, published in Official Gazette of Romania no. 890 of 3 October 2023, in which the Court had found exactly the same text to be constitutional. The Court followed that line and built its reasoning almost entirely on its own earlier decisions.

The reasoning rests on a distinction more than fifteen years old. A service pension has two components: the contributory part, borne by the State social insurance budget, and a supplement from the State, borne by the State budget. The first is covered by the constitutional right to a pension in Article 47(2) of the Constitution. The second is not, because it belongs to State policy in the field of social insurance, and the legislature may grant, alter or remove it according to the available finances. The idea comes from Decision no. 873 of 25 June 2010, published in Official Gazette of Romania no. 433 of 28 June 2010, and was taken up again in Decision no. 747 of 4 November 2021, published in Official Gazette of Romania no. 69 of 21 January 2022. It also produces the answer to the property argument: if the supplement falls outside the scope of the right to a pension, removing it for the future does not amount to an expropriation.

On equality, the Court compared two routes into the judiciary. Someone appointed on the basis of a competitive examination, under Article 33(1) of Law no. 303/2004, takes a vacant post in open competition. Someone reinstated under Article 83(3) receives, by contrast, a benefit: they enter without a competition, at the court where they used to work, precisely because there are not enough people there. The situations being different in essence, the different treatment has, in the Court’s logic, an objective and rational criterion. The argument goes back to Plenary Decision no. 1 of 8 February 1994, published in Official Gazette of Romania no. 69 of 16 March 1994, which set out the rule that equality requires equal treatment only for situations that do not differ.

Finally, the Court also rejected the authors’ reliance on Decision no. 82 of 15 January 2009, published in Official Gazette of Romania no. 33 of 16 January 2009, which had declared unconstitutional provisions of Government Emergency Ordinance no. 230/2008. The difference, already set out in Decision no. 381/2023, paragraph 36, is twofold. The 2008 ordinance banned outright the combination of a pension with income from activities in public institutions, whereas the present text allows the combination and merely reduces the pension. And there the unconstitutionality lay in the fact that fundamental rights had been affected through an emergency ordinance, contrary to Article 115(6) of the Constitution, whereas here the discussion is about an act of Parliament.

What it changes in practice

The decision is final and generally binding from publication, that is from 11 September 2026, under Article 147(4) of the Constitution. Being a rejection on the merits, it removes nothing from force and amends no provision. Anyone looking for a change in the law will find none.

The first effect occurs in the two pension cases. The Botoșani Tribunal and the Dâmbovița Tribunal, to which the decision is communicated, continue to hear the challenges to the pension decisions with the text confirmed as constitutional. For the authors of the objection, this is the last door closed on the constitutional route.

The second effect concerns anyone who might want to raise the issue again. A rejection as unfounded does not trigger the prohibition in Article 29(3) of Law no. 47/1992, which covers only provisions already found to be unconstitutional. In theory the text can be challenged again, but not on the same criticisms: the Court said plainly that the solutions in the earlier decisions remain valid, „no new elements having arisen that would justify a change in that case-law”. A new objection would have to bring precisely those new elements.

The third effect, the one that matters in practice, concerns the rule in force today. The Court reviewed a repealed text, but the norm survived under a different number, and the operative part does not touch it directly. For a magistrate who retires in 2026 and is called back, Article 216(2) of Law no. 303/2022 applies, with the same reduction of 85%. The decision obliges no authority to rule on the new text, but its reasoning is the only reference point there is, because the underlying question is identical.

The fourth effect is economic and shows up in the decision whether or not to return to the judiciary. Reinstatement happens only where the courts or prosecutor’s offices cannot function normally for lack of staff, that is precisely where the State needs people. Whoever accepts loses 85% of their pension and receives the salary of the office. Whoever refuses keeps the whole pension and can work anywhere else without any reduction, under Article 217 of Law no. 303/2022, which takes over the old Article 83(2). The calculation is each person’s own, but the law pushes it in a predictable direction.

The fifth effect is one of case-law. Decision no. 131/2026 adds another link to a chain going back to 2010 and confirms, for the third time on the same text, that the State may touch the supplementary component of a service pension. The Court has used the same logic outside the judiciary too, for instance when it said that pension differences according to the year of retirement are not discrimination.

What has changed compared with the previous situation

In law, this decision changes nothing. What has changed is the law around the text, twice over, and the comparison is the most useful part for today’s reader.

The first change is the birth of the rule itself. The 85% reduction does not date from 2005, even though the decision cites the republication of Law no. 303/2004 in Official Gazette of Romania no. 826 of 13 September 2005. The sentence was introduced by Law no. 242/2018, published in Official Gazette of Romania no. 868 of 15 October 2018, which entirely rewrote Article 83(3) through point 143 of Article I and entered into force on 18 October 2018. Until then, the paragraph said only that reinstatement takes place without a competitive examination and with the endorsement of the Superior Council of Magistracy, at the court where the magistrate had served, with no condition about a staffing shortfall and no effect at all on the pension. The 2018 law added both the restriction and the cut at once. The detail matters for anyone looking for the applicable text in a case: the 2005 version of the article does not contain the final sentence reviewed by the Court.

The second change is the replacement of the law. Law no. 303/2022, published in Official Gazette of Romania no. 1.102 of 16 November 2022, entered into force 30 days after publication, under Article 294(1), that is on 16 December 2022, and repealed Law no. 303/2004 through Article 294(5)(a). The old Article 83 broke in two: staying in office until the age of 70 and reinstatement moved to Article 216, while the right to combine the pension with any other professional income moved to Article 217.

The sentence under challenge carried over almost unchanged, with three differences. The first is a clarification that narrows it: the old text said „the amount of the pension is reduced by 85%”, while Article 216(2) says „the amount of the service pension is reduced by 85%”. In other words, the new law makes clear that the reduction strikes the special pension, not any pension. The second is a new condition of access: reinstatement is possible only if the magistrate was released from office through retirement in the past 3 years, a limit that did not exist in the old law. The third concerns the reason for the reinstatement: where the 2004 law required that the court could not function normally „for lack of staff”, the 2022 law speaks of „the large number of vacant posts or other objective causes”, a broader wording.

Neither the figure nor the structure that produces the inequality complained of by the authors has changed. Article 217 of Law no. 303/2022 takes over the permission to combine income without limit for any other professional activity and even widens it to assistant magistrates and to legal specialist staff assimilated to magistrates, while Article 216(2) keeps the 85% cut only for the return to the judiciary. The contrast on which the objection was built is therefore law in force in September 2026.

Finally, the Court’s own practice has changed in the sense that it has not. Decision no. 747 of 4 November 2021 validated the text for the first time, Decision no. 381 of 4 July 2023 validated it a second time in three joined cases, and Decision no. 131/2026 repeats the 2023 reasoning almost sentence by sentence, down to the internal references to paragraphs 36 and 37 of the previous decision.

Advantages and disadvantages

What it improves

  • It closes an uncertainty that was about money. Pension houses and the courts that hear social insurance disputes were applying a rule challenged again and again; they now have an answer on the merits, not a postponement.
  • It was delivered unanimously, with no dissenting or concurring opinion, so it leaves no doubt about what the Court meant to say.
  • It cites in full the case-law it relies on, with the number, date and place of publication of each decision. The reader can check every link personally, which is not the case in every rejection decision.
  • It explains clearly why the treatment differs: entry through a competitive examination and reinstatement without one are different routes, and the second is itself an advantage granted by the law.
  • It reaffirms the distinction between the contributory part of the pension, which is constitutionally protected, and the supplement from the State budget, which is not. That is the reference point on which the fate of any future discussion about special pensions depends.
  • It clearly separates this situation from the one in 2009, when the Court struck down the outright ban on combining income in Emergency Ordinance no. 230/2008. Reducing a pension and banning the combination outright remain two different things.

What remains a problem

  • 206 days passed between the ruling and publication, and the decision produces effects only from publication. For Decision no. 381/2023, on the same text and with the same assistant magistrate, the interval had been 91 days, therefore more than twice as short.
  • From the referral by the Botoșani Tribunal to publication, 2,187 days passed, almost six years, in a case where people were challenging the amount of their own pension.
  • The text reviewed had been repealed for 1,159 days on the date of the ruling, and the decision says nowhere where the same rule is to be found today. The reader has to discover Article 216(2) of Law no. 303/2022 unaided.
  • The Court’s own reasoning comes down to paragraph 28, a single sentence. Paragraphs 17 to 27 reproduce Decision no. 381/2023, in places word for word, without saying openly that this is a transcription.
  • The Dâmbovița Tribunal had referred the whole of Article 83(3), not only the final sentence, and the decision narrows the subject matter to the final sentence without explaining why. For the referring court, the rest of the paragraph is left without an express answer.
  • The decision describes reinstatement as taking place „through an interview organised by the relevant section of the Superior Council of Magistracy”, even though the statutory text it reproduces in paragraph 14 says only „without a competitive examination” and mentions no interview. The wording comes from earlier case-law, not from the provision under review.

Practical advice

  1. If you are a retired magistrate and receive an offer of reinstatement, do the sums before answering. Compare the salary of the office plus 15% of the service pension with the whole pension plus any other professional income you could earn outside the judiciary, which Article 217 of Law no. 303/2022 allows with no reduction at all.
  2. Check the time condition introduced by the new law. Article 216(2) of Law no. 303/2022 allows reinstatement only if you were released from office through retirement in the past 3 years. Anyone who retired longer ago no longer enters this procedure, whatever the staffing shortfall at the court.
  3. If you have a pending challenge to a pension decision in which the reduction was applied, this decision closes the constitutional route for you, but not the others. The actual method of calculation, the date from which the reduction was applied and the components it was applied to remain questions of legality, for the court to assess.
  4. When you work with a repealed text, cite the version applicable at the time of the facts and check it in the Official Gazette of Romania. The final sentence of Article 83(3) does not exist in the version republished in 2005: it was introduced by Law no. 242/2018 and applies from 18 October 2018.
  5. Do not confuse the reduction with a ban on combining income. Both the pension and the salary are received, and the Court insisted on that difference when it rejected the reliance on Decision no. 82/2009. If you are relying on the 2009 case-law, check first whether the text you are challenging bans or merely reduces.
  6. When the pension is recalculated after the reinstatement ends, ask for the period worked to be taken into account. Article 216(4) of Law no. 303/2022 grants that right expressly, by reference to the office held and to the calculation base at the date of release from office.

Frequently asked questions

What did the Constitutional Court decide, in short?
It rejected, unanimously, as unfounded, the objection of unconstitutionality concerning the final sentence of Article 83(3) of Law no. 303/2004, the provision that reduces by 85% the pension of magistrates reinstated in office, and found that this provision is constitutional in relation to the criticisms formulated.
Who does the 85% reduction apply to?
Only to former judges, prosecutors and assistant magistrates who retire and are then reinstated without a competitive examination, at the courts or prosecutor’s offices where they used to work and which cannot function normally for lack of staff. The reduction lasts as long as the reinstatement. A retired magistrate who works elsewhere keeps the service pension in full.
Why is this not discrimination, if other holders of service pensions lose nothing?
The Court held that the situations differ in essence. Reinstatement without a competitive examination is itself a benefit granted by the law, unlike appointment to the judiciary through open competition, and different treatment is permitted where it rests on an objective and rational criterion. The argument is based on Plenary Decision no. 1 of 8 February 1994 and on the later case-law.
Why is this not an expropriation, if a pension is possessions?
Because, in the Court’s reasoning, a service pension has two parts. The contributory part, paid from the social insurance budget, is protected by the constitutional right to a pension. The supplement paid from the State budget is not, because it belongs to State policy in the field of social insurance. Removing the supplement for the future, without touching the contributory part, does not amount to an expropriation.
If Law no. 303/2004 has been repealed, why was the objection heard at all?
Because the text applied in the cases the question came from. The Court invoked Decision no. 766 of 15 June 2011, published in Official Gazette of Romania no. 549 of 3 August 2011, under which provisions whose legal effects continue after they cease to be in force may also be reviewed.
Does the rule still exist today?
Yes, under a different number. Article 216(2) of Law no. 303/2022 provides that, during the reinstatement, the amount of the service pension is reduced by 85%. Compared with the old text, the new law specifies that the service pension is meant and adds a condition: reinstatement is possible only if the magistrate retired in the past 3 years.
Can the same issue be raised before the Court again?
Formally, yes, because the prohibition in Article 29(3) of Law no. 47/1992 covers only provisions found to be unconstitutional, and here nothing was found. In practice, the Court said that the earlier solutions remain valid, no new elements having arisen, so a new objection would have to bring precisely such elements.
How long did the procedure take?
The first referral dates from 15 September 2020, the second from 19 September 2023, the ruling from 17 February 2026, publication from 11 September 2026. That is 1,981 days from the first referral to the ruling and another 206 to publication, 2,187 days in all. Law no. 47/1992 sets no deadline either for deciding or for publishing.
Where can I find the full text of the decision?
In the Official Gazette of Romania, Part I, no. 772 of 11 September 2026, pages 4 to 6. The decision is also reproduced in full in this article, in the section with the original text of the act.

Editorial analysis

The outcome is predictable and, within the logic the Court has been building since 2010, correct. If the supplement from the State budget falls outside the constitutional right to a pension, then the legislature may reduce it, and 85% is a political figure, not a constitutional one. The problem is not what the Court decided, but how long it took to decide and what it left unwritten. Its own reasoning comes down to paragraph 28, a single sentence: the earlier solutions remain valid, no new elements having arisen. Paragraphs 17 to 27 repeat Decision no. 381 of 4 July 2023, in places word for word. Paragraph 21 of the present decision and the corresponding passage from 2023 coincide down to the phrase „through an interview organised by the relevant section of the Superior Council of Magistracy”, a description that in any case has no basis in the statutory text reproduced a few paragraphs above, where it says only „without a competitive examination”. For an act published because it becomes generally binding, the transcription is not a defect in itself, but it should have been flagged as such.

The figures say more than the text. From the interlocutory order of the Botoșani Tribunal, 15 September 2020, to the ruling, 1,981 days passed, and to publication, 2,187, that is six years less four days, for an answer that already existed in final form on 4 July 2023. Between the ruling and publication, 206 days passed. The comparison with the Court’s own precedent is merciless: Decision no. 381/2023, on the same text, with the same assistant magistrate, was published 91 days after the ruling. The same Court, the same procedure, the same type of act, an interval more than twice as long.

The second calculation explains why the delay matters. The Dâmbovița Tribunal referred the matter to the Court on 19 September 2023, that is 77 days after the Court had already delivered Decision no. 381/2023 and 14 days before it appeared in the Official Gazette of Romania. Had publication been two weeks faster, the Dâmbovița court would have had the answer in front of it and would most likely not have sent the case to the Court at all. The delay in publication therefore produced one extra case, heard for another two years and five months in order to receive exactly the answer that already existed.

The third calculation concerns the order in which cases are taken. Decision no. 381/2023 disposed of cases no. 1.825D/2019, no. 3.724D/2021 and no. 661D/2022. The present case, no. 1.812D/2020, had been registered at the Court before two of them and had an identical subject matter, but was not joined at the time and waited another 959 days for a ruling. Nothing obliged the Court to join it, but the practical result is that two claimants received in 2026 an answer that three others had received in 2023. An administrative detail also says something about the pace: the interlocutory order of the Dâmbovița Tribunal dates from September 2023, yet the case bears the number 210D/2024, so it reached the Court only after the turn of the year.

Finally, the decision has a gap in guidance that bears directly on its addressee, legal practice. The text reviewed has been repealed for more than three years, and the 85% rule lives today in Article 216(2) of Law no. 303/2022, with two real differences: the new law says „service pension”, not „pension”, and adds the condition of retirement in the past 3 years. The decision mentions nowhere the article of the law in force, even though paragraph 15 expressly acknowledges the repeal. Anyone reading the decision without looking further has no way of finding out where what the Court has just validated applies today.

What should be changed

  • A statutory deadline for publishing in the Official Gazette of Romania the decisions of the Constitutional Court delivered on objections. Thirty days from the ruling would be enough. Effect: the interval of 206 days in this case would no longer be possible, and courts hearing cases on the same issue in the meantime would have the answer to hand, instead of sending new cases to the Court, as happened with the Dâmbovița Tribunal.
  • Immediate publication of the outcome on the Court’s website, for information rather than for legal effect. Effect: a court weighing up a request for referral could see, the day after the ruling, that the text has already been validated, without waiting for the full reasoning.
  • Grouped disposal of cases with identical subject matter, in order of registration. Effect: a case registered in 2020 would no longer wait 959 days after other cases, registered in 2021 and 2022, received the answer on the same text.
  • An express explanation, in the reasoning, of any narrowing of the subject matter. When a court refers a whole paragraph and the decision rules only on one sentence, the reason has to be written down. Effect: the Dâmbovița Tribunal would know whether or not it received an answer on the first two sentences of Article 83(3), and the parties would know what they can still challenge.
  • An indication, in decisions reviewing repealed texts, of the article of the law in force that has taken over the rule. A single sentence at the end of the reasoning would be enough. Effect: the reader would learn at once that the rule validated applies today through Article 216(2) of Law no. 303/2022 and that the new text is not identical, since it narrows the reduction to the service pension and adds a condition about how recently the person retired.

Original text of the legal act

The text below is reproduced in Romanian, the official form of publication.

The full text, as published in the Official Gazette of Romania

Official Gazette of Romania no. 772 of 11 September 2026 16 pages PDF, 125 KB the act starts on page 4

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This article is for informational purposes only and does not constitute legal advice. For specific situations, consult a licensed attorney or tax advisor.