Compulsory retirement of female workers at a younger age than men constitutes discrimination on grounds of sex

ECHR Decisions
04/01/2023 11:26
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JUDGEMENT

Moraru and Marin v. Romania 20.12.2022 (app. no. 53282/18 and 31428/20)

see here

SUMMARY

The applicants are Romanian nationals, retired civil servants. Both applicants sought to continue working after the mandatory retirement age laid down for women, which was lower than for men, had expired. However, despite their demands, their employment contracts were terminated. They appealed to the national courts alleging that they had been discriminated against on grounds of sex. The response of the courts was that the requirements of the law and in particular the Pensions Act were explicit regarding contract periods regarding the mandatory retirement age.

Invoking Article 1 of Protocol 12 (general non-discrimination) to the ECHR, the applicants complained that they were forced to retire at the mandatory retirement age applicable to women and that this amounted to discrimination. The second applicant also relied on Article 14 (non-discrimination) in conjunction with Article 8 (right to respect for private life) of the ECHR. The ECHR found that the Government did not put forward any arguments regarding the economic – and not only – cost to society if women were allowed to work until the age of 65. It concluded that the applicants had not been given the option of continuing to work beyond the retirement age for women and until the retirement age laid down for men had been reached, thus constituting discrimination on grounds of sex which was not objectively justified or necessary.

The Strasbourg Court found a violation of Article 1 of Protocol No 12 to the Convention (general prohibition of discrimination) and awarded the first applicant EUR 7 500 in non-pecuniary damage and EUR 1 600 in respect of non-pecuniary damage.

PROVISION

Article 1 of the 12th Protocol of the Convention

PRINCIPAL FACTS

The applicants, Liliana Moraru and Doina Marin, are Romanian nationals, who were born in 1956 and 1958 and live in Focşani (Romania) and Bucharest respectively. They are retired civil servants. The first worked in the Galaţi branch of the National Agency for Financial Administration. In 2016, as she approached the mandatory retirement age for women, she asked to be allowed to continue working until the age of 65, the retirement age of men. However, on 1 March 2017 her employment contract was terminated as she had reached the mandatory retirement age and had paid the necessary contributions to the pension system.
Her employer refused to overturn that decision.

She went to court, claiming that she was discriminated against on the basis of sex. At first instance, the Vrancea District Court ruled in her favour, holding that under the relevant legislation (Pensions Law and Directive 2006/54/EC) a civil servant was entitled and not obliged to retire. However, her employer filed an appeal which was upheld. The Galaţi Court of Appeal found that the law cited by the court of first instance was not applicable here, and that the requirements of the law and in particular the Pensions Act were clear about contract periods with regard to the mandatory retirement age.

The second applicant was head of a department at the Ministry of Enterprise, Trade and Entrepreneurship. In January 2019, her employment ended as she had reached the mandatory retirement age for women. The Ministry denied to review her case. She appealed to the court to have that decision set aside, arguing that the younger retirement age for women constituted discrimination. In June 2019, the Bucharest District Court ruled in her favor and annulled the decision to terminate her contract. However, her employer’s appeal was upheld. The Bucharest Court of Appeal stated in particular that the applicant had not applied for equal treatment, merely to be allowed to work a further year, which does not fall within the scope of the relevant national case-law.

Legislation and case law on the matter have changed since the appeals were lodged and women in Romania can now work in public service positions until the retirement age applicable to men.

THE DECISION OF THE COURT…

The Court held that the case should be dealt with in accordance with Article 1 of the 12th Protocol to the Convention. The case-law of the Court of Justice has consistently established that differences in retirement age between the sexes amount to a difference in treatment, as in the case of such actions.

As regards the compatibility of this situation with the ECHR, the Court noted that the situation relates to the social security arrangements in force in the State. It observed that the domestic courts had not considered relevant arguments in accordance with European Union law or the case law of the Court of Justice of the European Union.
The Government made no arguments about the economic – and not only – cost to society if women were allowed to work until the age of 65. Indeed, the situation was later rectified in Romania through the legislation and the decision of the Constitutional Court (No. 387/2018). A further decision of that court (No. 112/2021) extended this provision to the public administration. The Court concluded that the applicants had not been given the option of continuing to work beyond the retirement age for women and until the retirement age laid down for men had been reached, constituting discrimination on grounds of sex which was not objectively justified or necessary.

The Court found a violation of Article 1 of the 12th Protocol to the Convention (general non-discrimination).

Just satisfaction (Article 41)

The Court held that Romania was to pay the first applicant EUR 7,500 in respect of pecuniary and non‑pecuniary damage and EUR 400 in respect of costs and expenses and to pay the second applicant EUR 1,600 in respect of costs and expenses.