In brief
- The cap that cuts the service pension of court clerks stands, and a mistake by the pension houses cannot bring it down. By Decision no. 277 of 26 March 2026, the Constitutional Court dismissed as unfounded the plea raised by five former employees of the courts, who showed that some colleagues with the same seniority and the same post had kept their pension uncapped, while they themselves had been issued with a revision decision. The Court answers that the text applies in the same way to everybody who falls within it, and that the fact that in some cases the pension houses did not apply it is a circumstance of fact, not a defect of constitutionality.
- Who is concerned. Directly, the specialised auxiliary staff of the courts and prosecutor’s offices, court clerks first of all, together with the forensic specialist staff and the forensic technicians, who receive a service pension under Law no. 567/2004. Indirectly, all the other five categories caught by the same Article IX(1) of Government Emergency Ordinance no. 59/2017: professional civil aviation flight crew, parliamentary public servants, members of the Diplomatic and Consular Corps, the staff of the Court of Accounts and the holders of the age-limit allowance provided for by the Statute of Deputies and Senators.
- The figures and the time limits that count. The cap did not enter into force together with the ordinance: the ordinance was published on 7 August 2017, while Article IX(1) takes effect from 15 September 2017, 39 days later, under Article X of the same act. The service pension is set at 80% of the average of the gross salaries of the last 12 months, for anyone with 25 years’ seniority in the speciality and aged 60, and the cap brings it down to the average net income from the same calculation base. The authors of the plea complain of a difference of about 1,000 lei a month in the net pension, that is around 12,000 lei a year. The five cases were joined, and from the first referral order, of 11 November 2021, to the delivery of the decision 1,596 days went by, plus another 187 until publication. The decision is final and generally binding from 29 September 2026.
Published: Official Gazette of Romania (Monitorul Oficial), Part I, no. 827 of 29 September 2026, pages 2-5
Delivered: 26 March 2026, unanimously
Final and generally binding: 29 September 2026, the date of publication
Two court clerks with the same seniority, the same post and the same court can have pensions that differ by almost 1,000 lei a month. The Constitutional Court has confirmed that the difference is lawful, even when it comes from the fact that one of them was lucky enough to have a pension house which forgot to apply the law. Decision no. 277 of 26 March 2026, published on 29 September 2026, dismisses as unfounded the plea raised by five people who retired from the courts and to whom the cap in Article IX(1) of Government Emergency Ordinance no. 59/2017 was applied. It is the second piece of bad news for court staff in the same month, after the decision published on 25 September 2026 by which the Court confirmed that the 10% salary increase stays only with the court clerks of the supreme court, of the DNA and of the DIICOT.
The plea reached the Court by five routes, from three county courts. Mariana Scorodeti, Rodica Elisabeta Dudău and Maria Daia raised it before the Mehedinți County Court, Division for labour disputes and social insurance, by the orders of 11 November 2021, 18 November 2021 and 14 January 2022. Elena Maria Bungărdean raised it before the Timiș County Court, First Civil Division, by the order of 15 September 2022, and Szántó Klára before the Covasna County Court, Civil Division, by the order of 7 December 2022. The five cases were joined to the first registered, under Article 53(5) of Law no. 47/1992 on the organisation and functioning of the Constitutional Court. The substantive proceedings concern, depending on the case, challenges against decisions revising a pension or against pension decisions issued under the ordinance.
The text at issue has three paragraphs and a simple logic, even if it is clumsily written. Paragraph (1) says that the net service pension may not exceed the average net income corresponding to the gross income from which the pension was worked out. Paragraphs (2) and (3) define the two quantities being compared: the net pension is the gross pension less income tax, and the net income is the gross salary less the compulsory social contributions and the tax. Translated into money, the rule says that a person cannot draw more in retirement than he was taking home when he was working. On paper it sounds reasonable. The real effect comes from the fact that the service pension was worked out at 80% of the gross salaries of the last 12 months, and 80% of a gross sum can be more than the corresponding net sum, because contributions come out of the gross too, not only tax.
The authors of the plea argued four criticisms. The first, on equality: colleagues with the same seniority, the same contribution record and the same post, at the same court, kept the pension worked out under Law no. 567/2004, without a cap, while they received the cap, with a difference of about 1,000 lei in the net pension. The second, on property: a pension is a patrimonial right, and reducing it would amount to an expropriation, the notion of a legitimate expectation also being invoked. The third concerned the refusal to recognise the longevity bonus in the calculation base. The fourth was one of form: the Government is said not to have had an extraordinary situation to justify the emergency ordinance, and through it to have affected a fundamental right, which Article 115(6) of the Constitution forbids. The plea also invoked Article 1(5) of the Constitution, in its component on the quality of the law, and Article 14 of the Convention.
On equality, the Court’s answer is short and cold. The rule applies in the same way to everybody who comes under it, and the circumstance that some pension houses failed in their duty to work out the cap is a matter of fact, not a ground of unconstitutionality. In other words, an administrative mistake in somebody’s favour creates no right for the others. The comparison between those who retired before and those who retired after is resolved in the same way: under the principle tempus regit actum, that is the law applicable at the time of the event, people under different sets of rules are not in comparable situations. Here the Court refers to Decision no. 861 of 28 November 2006, published in the Official Gazette of Romania, Part I, no. 45 of 22 January 2007.
On property, the Court relies on the case law of the European Court of Human Rights and on its own earlier decisions: neither the Constitution nor any treaty guarantees a particular amount of pension, and the State may set both a floor and a cap. The amount becomes a protected possession only to the extent that it has fallen due. What closes the discussion, however, is a point of fact: the authors applied for their pension after the ordinance was already in force, so they had at most a mere hope of a different amount, and a mere hope does not enjoy the protection of the Convention.
The criticism about the restriction of rights and the one on form fall together. Article 53 of the Constitution, which lays down conditions for restricting a right, refers to a restriction made by a law in the strict sense, that is by an act adopted by Parliament, and so cannot be invoked against an emergency ordinance. And on Article 115(6), which forbids emergency ordinances to affect fundamental rights, the Court answers with an openly circular construction: because the examination on the merits disclosed no effect on any right, the prohibition was not breached either.
What it changes in practice
Not a letter changes in the law. The cap in Article IX(1) stays exactly as it was, and the pension houses go on applying it. A dismissal as unfounded means that the text was weighed and passed the test, so a judge can no longer set it aside as unconstitutional, and there is no point in bringing the same criticism a second time.
The second effect concerns those whose pension the pension house revised downwards. The revision decision stands, because its basis was not touched. The argument that somebody else did not have the cap applied does not work in court and, after 29 September 2026, no longer works as a ground for referring the matter to the Constitutional Court either.
The third effect is the one that does not show in the decision and that matters most for a pending case. The cap applies only to pensions established on the basis of pension applications registered as from 15 September 2017, not from the publication of the ordinance. The date comes from Article X of the ordinance, and the High Court of Cassation and Justice confirmed it in binding terms by Decision no. 12 of 27 January 2025, delivered by the Panel for the Resolution of Points of Law and published in the Official Gazette of Romania, Part I, no. 206 of 10 March 2025. In addition, Article VIII of the ordinance says that applications registered and not yet decided by 15 September 2017 are settled under the rules in existence when the right arose. Anyone who lodged his application in the window of 39 days between 7 August and 14 September 2017 does not come under the cap.
The fourth effect is that the fight moves elsewhere. The same Decision no. 12 of 27 January 2025 established, likewise in binding terms, that the cap does not prevent the net pension from being updated with the average annual inflation rate for the years 2019 and 2020. In other words, the sum set at retirement is capped, but its annual increase no longer is. There is money still to be recovered there, and the decision published now does not touch that right at all.
The fifth effect is bitter and also comes from outside the text. For court clerks and for the other categories of specialist staff of the courts and prosecutor’s offices, updating with inflation has been stopped by derogation every year, without a break, from 2021 to 2026 inclusive, that is six years in a row. For 2025, the basis is Article XVI(2) of Government Emergency Ordinance no. 156/2024, published in the Official Gazette of Romania, Part I, no. 1334 of 31 December 2024, and for 2026, Article XXX(2) of Law no. 141/2025, published in the Official Gazette of Romania, Part I, no. 699 of 25 July 2025. The cases brought now concern, in practice, the years 2019 and 2020.
The effects run from publication, under Article 147(4) of the Constitution, which provides that decisions of the Constitutional Court are published in the Official Gazette of Romania and that, from the date of publication, they are generally binding and have force only for the future. The date that counts is 29 September 2026, not 26 March 2026, when the decision was delivered.
What has changed compared with the previous situation
Through this decision, nothing. What has changed, by contrast, is almost everything around it, and that explains how people with the same career ended up with different pensions.
The service pension of auxiliary staff was abolished in 2010, when these pensions passed into the public system, and it was re-established by Law no. 130/2015, published in the Official Gazette of Romania, Part I, no. 408 of 10 June 2015 and in force from 25 July 2015. That law introduced into Law no. 567/2004 a new article, Article 685, with 15 paragraphs, setting the conditions: 25 years’ seniority in the speciality, the age of 60 and 80% of the average of the monthly gross basic salaries, bonuses included, of the last 12 months of service.
Two years later, Government Emergency Ordinance no. 59/2017, published in the Official Gazette of Romania, Part I, no. 648 of 7 August 2017, intervened twice on the same right, in different directions. Through Article II it changed the updating indicator, putting the average annual inflation rate in place of the link with the pension point. Through Article IX(1), a provision of the ordinance’s own, it added the cap, which had not existed before and which applies from 15 September 2017. The difference in treatment the authors of the plea complain of comes from exactly there: from the date on which the pension application was registered, not from seniority and not from the post.
More recently, the basis on which these pensions were established disappeared and came back. Law no. 11/2024, published in the Official Gazette of Romania, Part I, no. 26 of 12 January 2024, replaced Law no. 567/2004 and repealed its chapter on pensions. It was in turn declared unconstitutional as a whole by Decision no. 402 of 19 September 2024, published in the Official Gazette of Romania, Part I, no. 15 of 10 January 2025, and at paragraph 49 the Court said expressly that Law no. 567/2004 and the other repealed acts come back into force on the date the decision is published. Article 685 therefore applies again from 10 January 2025. Article IX of the emergency ordinance, by contrast, has never been amended since it was adopted.
Advantages and disadvantages
What it improves
- The rule becomes predictable for everybody. A dismissal on the merits closes the discussion: the pension houses know they have to apply the cap, the courts know they cannot set the text aside, and pensioners know what there is no point in building an action on.
- The Court refuses to turn an administrative error into a right. Had the opposite argument been accepted, any mistake by a pension house would have become a ground for extending the benefit to the whole category, and the application of the law would have come to depend on who worked more carelessly.
- The cap keeps a link with the work performed. The limit is the average net income of the person concerned, not a fixed sum set politically, so it moves with that person’s own salary and does not break the relation between contribution and benefit.
- Unanimity and short reasons save time. Anyone preparing a case on the same arguments learns from four paragraphs that he has no chance and can turn to what has been left open, that is to the updating for 2019 and 2020.
What remains a problem
- The inequality remains, and the decision confirms it. The Court does not dispute that two people with the same career draw pensions differing by about 1,000 lei a month. It says only that the difference is not unconstitutional. Whoever benefited from the error keeps the money; whoever did not stays without.
- The longevity bonus receives no answer at all. The criticism appears in the authors’ reasons, at paragraph 9, and is never taken up again, although the operative part formally covers all the criticisms made.
- The date from which the cap applies is still stated wrongly. The decision speaks twice of the entry into force of the ordinance, although the cap entered into force 39 days later and turns on the date on which the application was registered, not on the date of retirement.
- The length of time cancels part of the gain. From the first referral order, of 11 November 2021, to publication, 1,783 days went by, that is four years, ten months and 18 days. Pension differences are claimed within the general limitation period of three years, which runs month by month, so part of the claim was extinguished while the case waited.
- The suspended updating empties the right of content. Six consecutive years with no indexation for inflation turn the service pension into a sum that erodes by itself, whatever the cap may say.
Practical advice
- Check first the date on which your pension application was registered, not the date of your retirement. The cap applies only to applications registered as from 15 September 2017. If you lodged your application between 7 August and 14 September 2017, Article VIII and Article X of the ordinance take you out from under the cap, and Decision no. 12 of 27 January 2025 of the High Court of Cassation and Justice confirms that in terms binding on the courts.
- Ask the territorial pension house for a copy of your file, with the registration date visible. Without the number and the date of the application, nothing in the point above can be proved, and in old files the date sometimes appears only in the registry.
- Do not build your action on the comparison with an uncapped colleague. That is exactly the argument now rejected. The court will treat it as a matter of fact, and the case will be lost on it.
- Move your claim onto the updating for the years 2019 and 2020. There is a binding resolution there in the pensioner’s favour: the cap does not prevent updating with the average annual inflation rate. What is claimed is the differences, not a recalculation of the basic pension.
- Do not waste time on the years 2021 to 2026. For each of them the updating was expressly stopped by derogation. A claim for such a year falls at the first hurdle, however good the rest of the argument.
- Keep an eye on the three-year limitation period. Pension differences in money are claimed separately for each monthly instalment. If the case drags on, a separate application for the oldest months stops the period running for them.
- If you do want the constitutional route, change the target. The criticisms on equality, on property and those concerning Article 115 of the Constitution have been dismissed on the merits. What has been left unexamined is the criticism about the quality of the law, based on Article 1(5), the one based on Article 14 of the Convention and the one about the longevity bonus, but they have to be argued separately, not deduced from the others.
Frequently asked questions
Does this decision cut my pension?
My colleague has an uncapped pension although we retired in the same year. Can I still claim?
From what date does the cap apply?
How is the cap worked out in concrete terms?
The pension house revised my pension downwards after a few years. Do I still have any chance?
Can I claim the updating of my pension with inflation?
Is Law no. 567/2004 still in force? I heard it had been replaced.
Can I still raise a plea of unconstitutionality on the same article?
Errors and inconsistencies in the published text
- Paragraphs 28 and 31: the date and the event which decide who comes under the cap are stated wrongly, twice. Both paragraphs place the dividing line at the „data pensionării”, the date of retirement, or at the moment when the person „a solicitat acordarea pensiei”, applied for the pension to be granted, both measured against the „intrarea în vigoare a Ordonanței de urgență a Guvernului nr. 59/2017”, the entry into force of that emergency ordinance. The ordinance entered into force on publication, on 7 August 2017, but Article X of it provides that Article IX(1) enters into force only on 15 September 2017, and Article VIII adds that applications registered and not yet decided by that date are settled under the rules in existence when the right arose. The real criterion is neither the date of retirement nor the date of the application, but the date on which the pension application was registered, as the High Court of Cassation and Justice, Panel for the Resolution of Points of Law, established in binding terms by Decision no. 12 of 27 January 2025, published in the Official Gazette of Romania, Part I, no. 206 of 10 March 2025, at paragraphs 85-87. A former court clerk who lodged his application in the window of 39 days between 7 August and 14 September 2017 reads in this decision that he is capped, when in fact he is not.
- The operative part covers three criticisms which the reasoning never examines. The closing formula finds the text constitutional „în raport cu criticile formulate”, in relation to the criticisms made, so to all of them. The reasoning, however, answers only on Article 16, on Article 44 together with Article 1 of the First Additional Protocol, on Article 47(2), on Article 53 and on Article 115(4) and (6). Left without a single line of analysis are: the breach of Article 1(5) of the Constitution in its component on the quality of the law, invoked at paragraphs 8 and 20; Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, invoked at paragraph 20; and the criticism about the refusal to recognise the longevity bonus, from paragraph 9, which is a reproach standing on its own, not a variant of the one about the cap. A judge who receives the same arguments tomorrow cannot know whether they were dismissed on the merits, and so are closed, or whether they were never weighed, and so can be raised again.
Editorial analysis
The solution is correct and was predictable. A cap worked out from each person’s own income cannot be attacked as discriminatory by somebody who is asking, in substance, to be treated like a colleague favoured by a mistake. The problem is how little it helps the person who reads it. The text stops exactly where the practical question begins: who comes under the cap, from when, and with what consequence for the updating.
The strangest absence is that of the Court’s own case law. At paragraph 24 the Court lists its precedents on this ordinance and cites two: Decision no. 687 of 31 October 2019 and Decision no. 723 of 12 December 2023. Missing is Decision no. 302 of 25 May 2023, published in the Official Gazette of Romania, Part I, no. 796 of 4 September 2023, which has exactly the same subject matter as the present decision, worded word for word: the ordinance as a whole and Article IX in particular, dismissed as unfounded. There the text of Article IX(1) is reproduced in full, with all six categories it catches. Here it is reproduced in truncated form, with marked omissions, leaving a single law visible. A reader coming to this decision for the first time believes that the problem arises only for court clerks and that this is the first time the Court has looked at Article IX. Both impressions are wrong.
The second absence costs money. On 10 March 2025, that is 381 days before this decision was delivered, there had been published Decision no. 12 of 27 January 2025 of the High Court of Cassation and Justice, binding on the courts, establishing that the cap in Article IX(1) does not prevent updating with inflation for the years 2019 and 2020 of the same pensions of auxiliary staff of the courts. It is the only good news in the whole history of this rule and the only thing a pensioner in the authors’ position can still claim today. The present decision does not mention it, although that resolution explains why the cap, even upheld, does not freeze the pension for ever. A one-line reference would have turned a decision of no practical use into a useful one.
It is also worth looking at the relation between the time limits the system imposes on the pensioner and those it allows itself. The pensioner has three years in which to claim the differences, and the period runs separately for each month, so he loses part of his claim steadily while he waits. Mariana Scorodeti’s case sat for 1,596 days from the referral order to the delivery and another 187 until publication, 1,783 days in all, that is four years, ten months and 18 days. The wait was therefore almost two years longer than the whole three-year period within which the law requires her to have gathered her claims. And in parallel, the State suspended the updating of these pensions six years in a row, from 2021 to 2026, through six different acts. A right suspended every year is no longer a rule but a budget line.
What should be changed
- The reasoning should restate the real date on which the cap applies, not the entry into force of the ordinance. A single sentence saying „pension applications registered as from 15 September 2017, under Article X” would spare dozens of people a case lost or, on the contrary, never brought out of ignorance.
- Texts quoted in decisions should be reproduced in full, and omissions should be explained. When a rule lists six categories and only one is left in the quotation, the reader loses precisely the information that would show him how widely the rule applies. Decision no. 302 of 25 May 2023 reproduced the same text in full, so it is not a question of space.
- The list of the Court’s own precedents should include all of them. A paragraph beginning „the Court notes that it has already ruled” creates the expectation of an exhaustive list. Omitting a decision with identical subject matter, published three years earlier, misleads without saying anything untrue.
- Binding decisions of the supreme court on the same text should be mentioned, even if they do not change the outcome. The Constitutional Court and the High Court of Cassation and Justice work on the same Article IX(1). When one of them has already given a binding resolution, the silence of the other leaves the impression that it does not exist.
- Criticisms not taken up should receive an express dismissal. If the longevity bonus, the quality of the law and Article 14 of the Convention did not deserve analysis, the decision ought to say why, in a sentence. Otherwise the operative part covers more than the reasoning examined, and the courts do not know what has been left open.
- The annual suspension of the updating should go into the law itself, not into laws on fiscal and budgetary measures. Six years stopped by six different acts, each with its own article and paragraph, make the right hard to follow even for a lawyer. If the updating has to be stopped, the place for that rule is in Law no. 567/2004.
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. 827 of 29 September 2026, pages 2-5 8 pages PDF, 83 KB the act starts on page 2
Open the official PDFDownload the PDF
The viewer is not shown on small screens. Use the buttons above to open or download the file.
This article is for informational purposes only and does not constitute legal advice. For specific situations, consult a licensed attorney or tax advisor.