Constitutional Court upholds pension recalculation rule: those who retired before 2011 do not get the more favourable contribution period

Pensioners who retired before 2011 cannot ask for their pension to be recalculated using the more favourable contribution period introduced later on. The Constitutional Court dismissed as unfounded the plea of unconstitutionality raised by Florin Rusu in a case pending before the Cluj Court of Appeal and found that the final sentence of art. 169^1 para. (3) of Law No. 263/2010, as interpreted by the High Court in Decision No. 69/2018, is constitutional. This is the second time in recent months that the Court has upheld a calculation rule contested by pensioners, after it had already established that the rules for calculating state military pensions remain constitutional. Decision No. 126 of 12 February 2026 was published in Official Gazette of Romania No. 609 of 27 July 2026.

To understand what is at stake, the mechanism has to be explained. The pension is obtained by dividing the total point score accumulated by a number of years called the full contribution period. The higher that number, the lower the average annual point score, and therefore the smaller the pension. For certain categories, the law provides for reduced contribution periods, precisely so that the resulting pension is higher.

Article 169^1 of Law No. 263/2010, introduced by Law No. 192/2015 and applicable from 1 January 2016, granted an increase in the point score to persons who had worked in work group I or II, or in arduous or special working conditions, and who had retired before 1 January 2011. The recalculation was carried out ex officio, without any application being needed. The question that reached the courts was which full contribution period applies to that recalculation: the one in the old law, in force when the person retired, or the one in Law No. 263/2010, in force on the date of the recalculation.

What it changes in practice

The first effect is procedural. The decision is final and generally binding from the date of publication, so the courts hearing disputes with the same subject matter are bound by the Court’s conclusion, and the same plea can no longer be raised, under art. 29 para. (3) of Law No. 47/1992.

The second effect concerns the calculation itself. The interpretation given by the High Court in Decision No. 69 of 15 October 2018 remains valid: the phrase “the full contribution periods provided for by law, corresponding to each situation” refers to the law in force on the date of the recalculation, that is, to Law No. 263/2010. A pensioner who retired under the old law cannot ask for the contribution period in that law to be applied to him.

The third effect is the most important one for pensioners’ peace of mind and is often overlooked in public debate: a recalculation cannot reduce the pension. The Court recalls that art. 169^1 para. (4) of Law No. 263/2010 expressly provides for the possibility of maintaining the average annual point score and the amount currently in payment or due on the date of the recalculation. In other words, if the new calculation produces a lower figure, the previous one is kept.

Another recalculation that reached the Court in September 2026 hangs on a law that was in force for twelve months: the December 2009 re-grading decides a pension worked out today, and the Constitutional Court has confirmed the rule.

The fourth effect concerns the specific category involved in the case. For persons who worked in radiation exposure zones, art. 57 para. (3) of Law No. 263/2010 initially provided for full contribution periods of 22 years and 6 months for zone I and 25 years and 6 months for zone II. Law No. 155/2016 reduced them to 15 years and 17 years respectively, which is significantly more advantageous. The benefit of that reduction was extended, upon request, only to persons whose pension entitlements arose between 1 January 2011 and the entry into force of Law No. 155/2016. Those who retired before 2011 were left outside it, and the Court now confirms that this dividing line is constitutional.

The fifth effect is one of legal technique. Although the text under review was repealed by Law No. 360/2023 on the public pension system, the Court ruled on it because it continues to produce effects in cases already under way, on the basis of Decision No. 766 of 15 June 2011. A provision that is no longer in force can still be reviewed for constitutionality as long as the outcome of a pending case depends on it.

What has changed compared with the previous situation

In legal terms, nothing changes. The Court confirms an interpretation that had been applied since 2018 and that it had already validated at least twice, in Decision No. 169 of 9 March 2021 and in Decision No. 104 of 27 February 2025. What does change is the position of the claimants: the line of challenge based on unconstitutionality is now closed.

The pensioner’s argument rested on three legs: the non-retroactivity of the law, laid down in art. 15 para. (2) of the Constitution, equality of rights under art. 16, and the right to a decent standard of living under art. 47. The Court rejected all three.

On equality, the answer rests on the principle of tempus regit actum: the two categories being compared obtained their pension rights under different sets of rules, with different retirement conditions, so they are not in identical situations. The fact that at a certain point the same art. 57 para. (3) applies to both of them does not make them comparable. The Court has consistently held, among others in Decision No. 76 of 9 February 2021, that the retirement date gives rise to distinct legal situations which justify differentiated legal treatment.

On retroactivity, the Court shifts the discussion to what matters in practice: a law is retroactive if it reduces a pension already in payment. Since art. 169^1 para. (4) guarantees that the previous amount is preserved, changing the elements of the calculation does not affect the acquired right.

On the standard of living, the Court invokes the exclusive right of the legislature to lay down the conditions and criteria for granting a pension, including the method of calculation, a right recognised by art. 47 para. (2) of the Constitution and asserted as far back as Decision No. 736 of 24 October 2006.

One detail in the reasoning deserves separate attention, because it shows that the problem was in fact solved, but only for the future. The legislature intervened through art. 169^2 of Law No. 263/2010, introduced by Law No. 221/2018, which from 1 October 2018 grants both the increase in the point score and the use, in the recalculation, of the reduced contribution period provided for by special laws. The old art. 169^1 granted only the increase in the point score. The difference complained of by the author of the plea was therefore corrected through legislation, but without retroactive effect on recalculations already carried out.

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