Returning to the judiciary without an examination required 10 years of service, and the Constitutional Court has upheld the condition

The Constitutional Court dismissed as unfounded the plea raised by a former judge who wanted to return to office and who contested the requirement of 10 years of service laid down for appointment without a competition or an examination. The return of former judges and prosecutors to office came before the Court once already in 2026, when retired judges and prosecutors who take up office again were left with only part of their pension, and the answer was the same then: the legislature may change the conditions of an advantage it granted itself. The decision was delivered unanimously on 12 March 2026 and published only on 18 September 2026.

The text at issue was Article 33¹ of Law no. 303/2004 on the status of judges and prosecutors. It provided that persons who had held the office of judge, prosecutor or assistant magistrate for at least 10 years, who had not been disciplined, who had received only the mark „very good” in every appraisal and whose service had ended for reasons not attributable to them „may be appointed, without a competition or an examination, to vacant posts of judge or prosecutor, at courts or prosecutor’s offices of the same rank as those where they had served or at courts or prosecutor’s offices of a lower rank”. The article had been inserted in 2018, by Article I point 48 of Law no. 242/2018.

The author of the plea had left the judiciary in June 1999, under Law no. 92/1992 on the organisation of the judiciary, whose text at the time required, in Article 67, a minimum of only 5 years of service for entry without a competition or an examination, according to the grounds of the plea. When she applied to return, the Superior Council of Magistracy found that she did not meet the 10-year condition laid down by the new law. She challenged that ruling before the Bucharest Court of Appeal and argued three things: that in 1999 she could not have foreseen a stricter condition introduced much later; that this creates inequality between those who left counting on 5 years and those who left already knowing about the 10; and that the period during which she had practised as a lawyer is not counted towards her service.

The Court answered that retroactivity is not in question here. It restated what it had established in Decision no. 362 of 27 June 2023, published in the Official Gazette of Romania, Part I, no. 769 of 24 August 2023, a case raising the same criticisms. Paragraph 21 of that decision says that laying down, by a new law, different conditions for a statutory advantage, applied to situations that arose earlier but whose effects had not been exhausted, is not retroactivity. It is the new law acting during its own period of application. The principle is called tempus regit actum, and it comes down to this: a right is exercised under the law in force on the day you ask to exercise it, not under the law in force on the day you first hoped you would ask.

On equality, the answer lies in paragraph 23 of the same decision: the 10-year condition applied in the same way to everyone applying to be reinstated, so the rule itself drew no distinction. The difference between those who qualified and those who did not comes from objectively different factual situations, not from the content of the rule. And in paragraph 22 the Court said the thing that weighs most: return without a competition was not a fundamental right but an advantage the legislature created at a given moment and could amend or abolish, so long as it observed the fundamental principles.

One detail is worth explaining, because otherwise the decision looks pointless. Article 33¹ was no longer in force even on the date of delivery: it had been expressly repealed on 31 December 2021, by Article I point 1 of Law no. 313/2021, and the whole of Law no. 303/2004 was repealed on 16 December 2022, when Law no. 303/2022 entered into force, under Article 294(5)(a) of the latter. The Court nevertheless ruled on the text, because, as it had established in Decision no. 766 of 15 June 2011, published in the Official Gazette of Romania, Part I, no. 549 of 3 August 2011, review may also be carried out on provisions whose legal effects continue after they cease to be in force. A dispute begun in 2019 is tried under the law of that time, even if that law has disappeared since.

What it changes in practice

For the author of the plea the effect is plain and unwelcome: the text stands exactly as it was, and the file goes back to the Bucharest Court of Appeal, which carries on hearing the case with a rule declared constitutional. What remains open is something else, and the prosecutor said so at the hearing: how the law is applied and interpreted at the moment of an application to return to the judiciary is a matter for the courts, not for the Constitutional Court. The decision does not hand the Superior Council of Magistracy victory on the merits of the dispute. It closes only the constitutional limb.

For anyone still litigating over Article 33¹, the answer is given and will not change. The decision is final and generally binding, and its reasoning binds the courts, not only the operative part. This is the difference most people miss: on a dismissal nothing is suspended and the 45-day period under Article 147(1) of the Constitution does not start, because no unconstitutionality was found. What produces effects is the reasoning.

That reasoning reaches beyond the judiciary. On a rule about judges, the Court framed a principle that applies to any advantage granted by law: the conditions are judged under the law in force on the day of the application, and someone who left a profession counting on the rules of that time has no vested right to those rules. The same logic can be relied on tomorrow in disputes about special pensions, the recognition of qualifications or any statutory benefit somebody planned to claim much later.

For someone who wants to become a judge or a prosecutor today, the decision changes nothing at all, and that is the most useful news in it. The route the parties were arguing about has not existed since the end of 2021, and Law no. 303/2022 did not carry it over. In its place, Article 63(1) of the new law puts former judges and prosecutors who left for reasons not attributable to them on the same list as lawyers, notaries, in-house counsel, bailiffs, assistant magistrates and teaching staff from accredited higher legal education: all of them may be appointed to the judiciary, but through a competition, with at least 5 years of service in their specialism.

What has changed compared with the previous situation

In law, nothing changed on 18 September 2026. A dismissal leaves the text exactly as it was, and this text was no longer in force anyway. What changed is the state of the question: from arguable it became closed, with reasoning the courts have to follow.

The real change happened outside the decision, between the referral and the publication. On 16 October 2020, when the Bucharest Court of Appeal sent the file to the Constitutional Court, Article 33¹ was in force. It was repealed 441 days later. Another 350 days on, the law it belonged to disappeared as well. Anyone opening the Official Gazette of Romania on 18 September 2026 is therefore reading about a rule that had been out of use for 1,722 days.

Comparing the old rule with today’s shows a trade-off rather than a simple tightening. Article 33¹ asked a lot and gave a lot: 10 years as judge, prosecutor or assistant magistrate, no disciplinary sanctions, the top mark in every appraisal and a departure for reasons not attributable to the person, in exchange for appointment with no test whatsoever, at courts or prosecutor’s offices of the same rank as those where the person had served. Article 63 of Law no. 303/2022 asks less and gives less: the service requirement drops to 5 years in the specialism, but the competition becomes compulsory, with two eliminatory written papers and an interview.

And the rank no longer comes with the job. Article 64(1) of Law no. 303/2022 puts up for this competition only the vacant posts at district courts and at the prosecutor’s offices attached to them, that is the first level of the hierarchy. A former court of appeal judge who returns today starts at the bottom, not where they left off. And stays there for a while: Article 63(2) bars temporary assignment, secondment, transfer and promotion for three years, while Article 79(2) requires a 6-month training course at the National Institute of Magistracy, with elements of European Union law.

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