High Court of Cassation and Justice, decision regarding the allowance of magistrates: The principle of equal treatment enshrined in the EU Treaty must be respected
The High Court of Cassation and Justice (ÎCCJ) established, in a decision adopted on Monday, that the selective granting of the allowance to magistrates is likely to produce a difference in treatment that is incompatible with the principle of equal treatment enshrined in the Treaty on the Functioning of the European Union.
The Supreme Court considers that this salary right must be analyzed as an element of remuneration from the perspective of European standards regarding equal treatment, reports News.ro. The decision of the ÎCCJ is binding.
The representatives of the Supreme Court announced that, in Monday's public session, the High Court of Cassation and Justice, constituted in the Full Court for resolving some legal issues, resolved the referral made by the Bucharest Court of Appeal – Section IX administrative and fiscal litigation in File no. 447/1/2026.
The referral concerned the interpretation of the provisions of art. 88^2 para. (5) from Law no. 304/2004 regarding judicial organization, with subsequent amendments and additions, as they were clarified by Decision no. 13 of March 13, 2023 of the Supreme Court, by reference to the principle of equal treatment established by European Union law.
“Following the examination of the referral, the High Court admitted the referral in part and established that the allowance provided for by Article 88^2 paragraph (5) of Law No. 304/2004 constitutes an element of remuneration within the meaning of European Union law, and its selective granting, in the absence of an objective and verifiable difference in the content or value of the work actually performed by the categories of beneficiaries compared to those of non-beneficiaries, is likely to produce a difference in treatment incompatible with the principle of equal treatment enshrined in the Treaty on the Functioning of the European Union and the provisions of Article 20, 21 and 31 of the Charter of Fundamental Rights of the European Union, as they have been developed in the jurisprudence of the Court of Justice of the European Union”, submitted the representatives of the ECJ.
They mentioned that granting this salary right only to certain categories of magistrates cannot be justified exclusively by a formal criterion.
“The supreme court held that this salary right must be analyzed as an element of remuneration from the perspective of European standards regarding equal treatment. Therefore, granting it only to certain categories of magistrates cannot be justified exclusively by a formal criterion, in the absence of real, objective and verifiable differences regarding the activity actually carried out”, announced the representatives of the ÎCCJ.
At the same time, the referral regarding the legal issue regarding the interpretation of the effects of the same decision, namely whether this right should be considered an element of the employment allowance, was rejected as inadmissible, considering that this had already been clarified previously.
The decision is binding.
