The Constitutional Court of Romania establishes the retiree’s new constitutional right to work

Abstract

The issue of combining the salary/pension is not a recent concern in Romania, as in 2017, the Court of Justice of the European Union itself had the opportunity to rule on the national legislation that prohibits the combining of a public pension with salary income from activities carried out in a public institution.

However, by Decision no. 521 of 5 October 2023, the Constitutional Court of Romania created a new constitutional right: “the retiree's constitutional right to work”, by combining two independent fundamental rights, namely the right to work, regulated by Art. 41 paragraph (1) of the Constitution, and the right to pension, regulated by Art. 47 paragraph (2) of the Constitution, each of which is exercised under the conditions provided by law. It has been shown that, inevitably, their simultaneous exercise generates an inter-relationship between them, but in no case in terms of exclusion from the exercise of any fundamental right or freedom.

The possibility of combining the salary paid from public funds with the pension for age limit in the public pension system, in the public military pension system or with service pension is not an independent constitutional right, expressly provided for in the Constitution, but a legal benefit granted by the legislator, under conditions established by law, to people who wish to continue their work for public sector employers. Naturally, such a benefit granted by the legislator can also be retracted, also by the legislator, but in compliance with the constitutional provisions that establish the principle of non-discrimination and that require compliance with the proportionality between the objective pursued by the legislator and the means employed to attain it.

The law in question did not directly regulate an interdiction to simultaneously exercise the two fundamental rights (the right to work and the right to pension), but a real right of option between exercising the right to work, in the sense of continuing the activity in the public field, and exercising the right to pension. This right of option, once exercised by the beneficiary, leads to a subsequent legal situation in which the salary paid from the state budget or the state social insurance budget can no longer be combined with the pension for age limit, state military pension or service pension, exclusively for the period of time in which the legislator recognizes the retiree’s right to continue, respectively to carry out salaried activity in the public system.

But such a reasoning was superfluous for the Constitutional Court of Romania, which established that the combining of pension and salary represents the beneficiary’s option to capitalize on the two fundamental rights, and not the legislator’s option, as a result of some social policy measures. Sociological aspects (the idea of active aging at work, without combining), statistical aspects (the number of combining employees) or the financial impact (not cited in the case) cannot constitute reasons for restricting the exercise of fundamental rights.

Keywords: new constitutional right, Constitutional Court, salary, pension