The ordinance that halted public-sector pay and pension cases has been declared unconstitutional in its entirety

The Constitutional Court has struck down the ordinance that obliged every court to halt its proceedings and ask the High Court of Cassation and Justice for a ruling in principle whenever it came across a point of law in a case about the pay, the pensions or the social insurance benefits of staff paid from public funds. The mechanism resembled the one in the Code of Civil Procedure, except that there the question is left to the judge’s own assessment and the supreme court may reject it as inadmissible, as it did in a pay case in which it showed that a court that asks a question cannot pass upwards the task of identifying its own point of law. The ordinance had turned the option into an obligation, and the suspension from discretionary into automatic.

The text now struck down has four articles. Article 1 sets the scope: proceedings on the establishment or payment of the salary entitlements of staff paid from public funds, including proceedings for the issue or annulment of administrative acts issued for that staff and proceedings concerning their employment and service relationships, then proceedings on pensions, on their updating, recalculation and revision, as well as on other social insurance benefits. Paragraph (3) adds a very broad formula: the ordinance applies irrespective of the nature and subject matter of the proceedings, of the standing of the parties and of the court having jurisdiction. Article 2 contains the mechanism itself, Article 3 extends it to proceedings already under way on the date of entry into force, and Article 4 refers, for everything else, to the Code of Civil Procedure.

The mechanism in Article 2 worked as a chain. The panel at first instance or on appeal, finding that the resolution of the merits depended on the clarification of a point of law and that the High Court had not ruled on it, asked the supreme court for a preliminary ruling. The interlocutory order making the referral was sent by electronic mail to all the other courts with jurisdiction over proceedings of the same kind, and their presidents informed the judges of the corresponding divisions. Similar cases pending before the courts were stayed until the preliminary ruling, referrals with the same subject matter were joined, and the High Court had at most 60 days to hear the case, 15 days to give its reasons and 5 days to publish them.

The plea came from the courts, not from the parties. Three divisions of the Bucharest County Court, the Eighth Division for labour disputes and social insurance, the Fifth Civil Division and the Third Civil Division, raised it of their own motion in ten cases, by interlocutory orders given between 5 July and 30 October 2024. Before the Constitutional Court, the ten cases were given file numbers from 2.695D/2024 to 3.519D/2024 and were heard together.

The criticisms were of two kinds. The extrinsic ones concerned the manner of adoption: neither the preamble nor the explanatory memorandum shows any extraordinary situation, pre-existing, quantifiable and objective, and divergent case law belongs to the normal functioning of the judicial system and can be corrected through the appeal in the interest of the law and through the preliminary ruling, both already regulated. The impact on the general consolidated budget, relied on as the urgency, was asserted without a single figure, even though first-instance judgments in labour and pension matters have been provisionally enforceable since the entry into force of the Labour Code and of the Code of Civil Procedure, so budgetary pressure was not a new element in 2024.

The intrinsic criticisms were more numerous and weightier. The courts complained that the scope does not close, because Article 1(1) also covers employment and service relationships, and therefore dismissals as well, while paragraph (3) says that the ordinance applies irrespective of the nature and subject matter of the proceedings, after the preceding paragraphs had already established that nature and that subject matter. They further complained that the ordinance derogates from Article 519 of the Code of Civil Procedure without using the formula „prin derogare de la”, that is, by way of derogation from, required by Article 63 of Law no. 24/2000; that it does not say expressly whether the case in which the referral is made is also stayed; that Article 3 applies it to pending proceedings, even though Article 4 refers to a code that provides exactly the opposite; that special rules for public-sector staff alone discriminate against other disputes; and that obliging the judge to ask, whatever the difficulty of the problem, interferes with the independence of the judiciary.

The Government asked for the plea to be rejected. It argued that the phenomenon of divergent case law was widespread and persistent, that the mechanism is special and derogating but intelligible when read together with the ordinary law, and that staff paid from public funds are in a legal situation different from that of employees in the private sector, through the statutory character of their employment relationships and the budgetary source of their entitlements. The presidents of the two Chambers of Parliament and the Ombudsman sent no point of view.

The Court answered on a single ground and said, in paragraph 69, why it was not examining the others. It held that the reasoning on urgency is formal, because neither the creation of a procedure for unifying case law nor the budgetary impact of judgments amounts to an extraordinary situation, which breaches Article 115(4) of the Constitution. It then went further: overlapping the mechanisms of the Code of Civil Procedure hampers and may even block the work of the High Court and affects the role of the courts, in breach of Article 115(6), which forbids emergency ordinances from affecting the regime of the fundamental institutions of the State. Since the defect lies in the adoption, it touches the whole act, so the remaining criticisms no longer have any object.

What it changes in practice

The first effect is a matter of calendar and it has two dates, not one. Under Article 147(4) of the Constitution, the decision is generally binding from publication, so from 25 September 2026. Under paragraph (1) of the same article, the provisions of an ordinance in force that are found to be unconstitutional are suspended by operation of law for 45 days and cease to have legal effect at the end of that period, unless Parliament or the Government brings them into line with the Constitution. That period expires on 9 November 2026. In practice, the ordinance stopped applying on 25 September 2026, and what happens on 9 November concerns only the form in which it will remain written in the body of legislation.

The second effect is felt by the people whose cases were standing still. All the cases stayed under Article 2(3) are left without the basis for the stay, and the courts regain, in the Court’s words, the full extent of their jurisdiction. Anyone with a case pending over pay differences, over a bonus, over the recalculation of a pension or over another social insurance benefit may ask for the case to be restored to the list.

The third effect concerns the High Court. In paragraph 70, the Constitutional Court wrote that the referrals pending before the supreme court in application of this ordinance are to be sent back administratively to the courts that made them, so that the hearing may resume. This is a rare instruction on implementation in a decision of the Court, and it explains why the cases are not waiting for a preliminary ruling that will never be delivered.

The fourth effect is on the judge. From 25 September 2026, in a case about the pay or pensions of public-sector staff the general rule applies again: a referral to the High Court becomes optional once more, only the panel sitting at last instance may make it, the point of law must be new and difficult, and the stay of similar cases remains a matter for the court’s assessment. A judge who considers that he can resolve the question himself resolves it himself.

The fifth effect shows up in the way legislation is made, not in the case files. In the same reasoning, the Court linked the condition of an extraordinary situation to the prohibition on affecting the regime of the fundamental institutions through an emergency ordinance. Any future intervention in the powers of the courts or of the supreme court, even a procedural one with a declared technical purpose, now has a precedent saying that the route of the emergency ordinance is not open.

What has changed compared with the previous situation

Until 25 September 2026 there were two parallel regimes for the same question put to the High Court. The general regime under Article 519 of the Code of Civil Procedure: only the panel sitting at last instance asks, only if the point of law is new, only if the resolution of the merits depends on its clarification and only if the court considers it necessary, and the stay of similar cases is optional. The special regime under the ordinance, applicable to disputes of public-sector staff: any panel asks, at first instance or on appeal, without the condition of novelty, whenever the High Court has not already ruled, and the stay is mandatory. From 25 September 2026 only the first remains.

The second change concerns who decides whether the question is worth asking. That assessment had been taken out of the hands of the judge hearing the case: if the High Court had not ruled and there was no appeal in the interest of the law pending, the referral became compulsory. The decision calls the mechanism „hybrid” precisely because it borrowed the form of the preliminary ruling while removing its admissibility filter. The return to Article 519 brings that filter back, and the supreme court regains the possibility of rejecting a referral as inadmissible.

The third change is to the length of proceedings. The supreme court was given at most 60 days from the referral, 15 days to give its reasons and 5 days to publish them, so at most 80 days for each referral, but similar cases across the whole country were standing still throughout that time. Without the ordinance, there is no automatic stay left in this field, and cases move at their ordinary pace.

The fourth change concerns where a new rule can be made. The Court did not say that a mechanism for unifying case law in pay disputes would be contrary to the Constitution in itself. It said that it could not be adopted by emergency ordinance. The same solution, voted as a law by Parliament, would reach a constitutional review in which the intrinsic criticisms that the present decision set aside would be discussed.

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