I. At its hearing of 5 October 2023, the Constitutional Court, in the context of the a priori constitutional review, unanimously, upheld the objection of unconstitutionality raised by the High Court of Cassation and Justice – United Sections and found that the provisions of Articles 2 to 11 of the Law on certain measures for the continuation of employment by persons who meet the conditions for retirement and for the amendment and completion of certain legislative acts were unconstitutional.
In essence, the contested provisions make the right to a pension conditional on the non-exercise of the right to work, limiting it until annihilation, which leads to a breach of Articles 1 (5) and 47 (2) of the Constitution. The Court has held that the exclusion or limitation of a fundamental right/freedom no longer reflects a question of proportionality, but rather a question of abolishing a fundamental value in the State (respect for fundamental rights and freedoms – Article 1 (3) of the Constitution).
The Court has also held that making the exercise of the right to work conditional on the non-exercise of the right to a pension was tantamount to excluding a socio-economic category from the possibility of holding a position in the public sector, which was inadmissible. A fundamental right or its exercise cannot exclude the benefit of another fundamental right, also regulated in the Constitution, as parallel legal regimes would be created according to the rights at issue.
Furthermore, given that the fundamental right to a pension does not allow for the possibility of suspending pension payments or losing the amount of the pension for the period of suspension, the Court found that the right to property guaranteed by Article 44 of the Constitution was also infringed.
II. Likewise, at the same hearing, the Constitutional Court, in the context of its a posteriori constitutional review, unanimously upheld the exception of unconstitutionality and found that the provisions of Article 8 (2) of Decree No 32/1954 implementing the Family Code and of the Decree relating to natural and legal persons were constitutional in so far as they did not concern the action for establishing the paternity brought by a child born out of wedlock.
In essence, the Court held that the period within which an action may be brought for the determination of the paternity of a child born out of wedlock, of 1 year from the date on which the child was born, infringes the child’s right to privacy, since it deprives him of the opportunity to act knowingly and voluntarily, once he or she has acquired full legal capacity, in order to establish his or her parenthood with the father. The determination of parenthood with regard to the father, as an attribute of the person, as a factor shaping a child’s identity, cannot be left to the discretion of someone else, namely the mother of the child or the child’s legal representative, who remained passive during that period of time. The unconstitutionality of the contested legislation stems from the fact that, as holder of the right to bring an action for the determination of paternity, a child will never be able to bring such an action in person, whereas, after the expiry of the time-limit of one year from the date on which he or she was born, the action becomes time-barred.
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Decisions are final and generally binding.
The arguments substantiating the decisions of the Constitutional Court shall be set out in the decisions, which will be published in the Official Gazette of Romania, Part I.
Department of External Relations, Press and Protocol of the Constitutional Court