CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 décembre 2022

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text-indent:-17pt; text-align:justify } .sE5BF05B1 { width:2.33pt; font:7pt 'Times New Roman'; display:inline-block } .s7F175FE6 { margin-top:0pt; margin-left:51.05pt; margin-bottom:0pt; text-indent:-17.05pt; text-align:justify } .sE5C1F6E3 { width:3.33pt; font:7pt 'Times New Roman'; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s95770030 { margin-top:30pt; margin-bottom:0pt } .sD8AE9261 { width:36.9pt; display:inline-block } .sB1A859A2 { width:116.43pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FOURTH SECTION CASE OF MORARU AND MARIN v. ROMANIA (Applications nos. 53282/18 and 31428/20)     JUDGMENT   Art 1 P12 • Prohibition of discrimination • Inability of two female civil servants who had attained the retirement age set for women to continue to work until reaching the higher retirement set for men • Blanket rule on automatic termination of women’s employment at a lower age than men constituting discrimination based on sex and perpetuating harmful stereotypes • No reasonable or objective justification for impugned measure • Narrow margin of appreciation   STRASBOURG 20 December 2022   FINAL   20/03/2023   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Moraru and Marin v. Romania, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Gabriele Kucsko-Stadlmayer , President ,   Faris Vehabović,   Iulia Antoanella Motoc,   Branko Lubarda,   Armen Harutyunyan,   Anja Seibert-Fohr,   Ana Maria Guerra Martins , judges , and Ilse Freiwirth, Deputy Section Registrar, Having regard to: the applications (nos.   53282/18 and 31428/20) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Romanian nationals, Ms Liliana Moraru (“the first applicant”) and Ms   Doina   Marin (“the second applicant”), on 6 November 2018 and 14   July 2020 respectively; the decision to give notice to the Romanian Government (“the Government”) of the complaint concerning allegations of discrimination based on sex due to the application of the rules on retirement age; the parties’ observations; Having deliberated in private on 29 November 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the inability of female civil servants who had attained the retirement age set for women to continue to work until they reached the retirement age set for men. The Government were given notice of the applicants’ complaint under Article 14 of the Convention taken together with Article   8, and under Article   1 of Protocol No. 12 to the Convention. THE FACTS 2.     The first applicant was born in 1956 and lives in Focşani. She was represented by Mr M.V. Holban, a lawyer practising in Bucharest. 3.     The second applicant was born in 1958 and lives in Bucharest. She was represented by Ms M. Bănaș, a lawyer practising in Bucharest. 4.     The Government were represented by their Agent, Ms   O.F. Ezer, of the Ministry of Foreign Affairs. 5.     The facts of the case may be summarised as follows. APPLICATION NO. 53282/18 ( MORARU ) 6 .     The first applicant was a civil servant who worked as an advisor in the Galaţi branch of the National Agency for Fiscal Administration ( Agenţia Naţională de Administrare Fiscală   –   “the ANAF”). 7 .     On 7 December 2016, as she was approaching retirement age set for women at that time (in her case, 60 years and six months, see paragraph   24 below), she submitted a request to her employer expressing her wish to continue to work until she reached the retirement age set for men (65). 8 .     By a decision of 3 February 2017, the ANAF terminated the applicant’s employment as of 1 March 2017, on the grounds that she had reached the legal retirement age and had completed the mandatory period of contribution to the pension scheme. The applicant was notified of the decision. 9.     On 14 February 2017 the applicant asked the ANAF to revoke the decision of 3 February 2017, but on 10 March 2017 the employer denied her request. 10 .     On 31 March 2017 the applicant lodged an action with the Vrancea County Court, seeking annulment of the decision of 3 February 2017. She relied on the provisions of the Equal Opportunity Act (see paragraph   31 below) and Directive 2006/54/EC (see paragraph 70 below), which, in her view, should have taken precedence over the domestic law. She also invoked the Istanbul Convention (see paragraph 65 below), which urges States to take legislative and other measures to prevent discrimination based on sex. In her view, setting a different retirement age for men and women constituted prohibited discrimination. She compared her situation to that examined by the Court of Justice of the European Union (CJEU) in Kleist (see paragraph   75 below) and Marshall (see paragraph 71 below), and considered that the CJEU’s findings in those cases were applicable to her situation. 11.     On 27 September 2017 the Vrancea County Court found in favour of the applicant. The court observed that under Article 53 of the Pension Act and the provisions of Directive 2006/54/EC, a civil servant had a right and not an obligation to retire. 12 .     Deciding on an appeal lodged by the ANAF, in a final decision of 21   May 2018 the Galaţi Court of Appeal dismissed the initial application as unfounded. It considered that under the requirements of the Civil Service Act read together with those of the Pension Act (see paragraphs 24 and 28 below), a civil servant’s work contract ended automatically when he or she reached retirement age. Furthermore, relying on decision no. 1007/2008 of the Constitutional Court (“the CCR”) (see paragraph 45 below), it considered that Directive 2006/54/EC (see paragraph 70 below) did not apply to the facts of the case, which were instead governed by Directive 79/7/CEE (see paragraph   69 below). The court observed that Article 7 of Directive 79/7/CEE allowed member States to exclude from its scope the determination of retirement age for the purposes of granting old-age and retirement pensions. 13 .     The Court of Appeal further considered that the CJEU’s judgment in Kleist did not apply to the first applicant’s situation. It noted that the Austrian domestic law examined by the CJEU in that judgment had been found to be discriminatory because the intended aim of setting age limits for retirement – that is, promoting young workers’ access to the labour market – had not justified a different retirement age for men and women. The court simply observed that that was not the aim of the Romanian law applicable in the case. APPLICATION NO. 31428/20 ( MARIN ) 14 .     The applicant, a civil servant, was head of service in the Ministry of Business, Commerce and Entrepreneurship (“the Ministry”). 15 .     On 6 November 2018, two months before she reached the retirement age set for women at that time (in her case 61, see paragraph 24 below), she submitted a request to the Ministry expressing her wish to continue to work for an additional year, under the provisions of Article 98 § 3 of the Civil Service Act after the amendment of Law no. 188/1999 (see paragraph   29 below). 16 .     By a decision of 15 January 2019, the Ministry ordered the termination of the applicant’s employment as of 12   January 2019, on the grounds that she met the conditions set by law: she had attained the standard retirement age and had completed the minimum period of contribution to the pension scheme. 17.     On 29 January 2019 the applicant asked the Ministry to revoke its decision, but received no answer. 18 .     On 28 March 2019 she lodged an action with the Bucharest County Court, seeking annulment of the Ministry’s order of 15 January 2019. She argued that the automatic termination of her work contract at a different age from that of a male colleague constituted discrimination. She considered that decision no. 387/2018 of the CCR applied to her case, given that the applicable provisions of the Civil Service Act were identical to those of the Labour Code which had been declared unconstitutional by that decision (see paragraphs   53 ‑ 58 below). 19.     On 20 June 2019 the Bucharest County Court allowed the action and annulled the Ministry’s decision to terminate the applicant’s employment. The court considered that the reasoning from the CCR’s decision no.   387/2018 applied mutatis mutandis to the applicant’s situation. It thus considered that Article   98 § 3 of the Civil Service Act only came into play for an employee, male or female, who had already attained the retirement age set for men and wished to continue to work past that limit. 20.     The Ministry appealed and in a final decision of 16 January 2020 the Bucharest Court of Appeal allowed the appeal and dismissed the applicant’s action. It found that the applicant could not continue to work past her retirement age, given that the employer had not approved her request. 21.     The court further considered that the applicant had not requested equal treatment, that is to say, the extension of her employment relationship until she reached the legal retirement age set for men. Her request, to be allowed to continue to work for one year past retirement age, did not come within the scope of the CCR’s decision. The CCR’s decision was also not applicable to the current proceedings, given that the applicant’s situation was regulated by the Civil Service Act and not the Labour Code. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW Retirement age 22 .     The retirement age was initially set by Article 8 § 1 of Law no.   3/1977 on public social security pensions and social assistance at 62 for men and 57 for women: Article 8 “(1)     Male workers with at least 30 years’ service and female workers with at least 25   years’ service are entitled to an old-age pension upon reaching the age of 62 for men and 57 for women.” 23 .     On 31 March 2001 Law no. 19/2000 on the public pension scheme and other social security rights replaced Law no. 3/1977 and remained in force until 31 December 2010. It provided as follows, in so far as relevant: Article 41 “1.     The old-age pension is granted to insured persons who, at the date of retirement, cumulatively meet the conditions relating to the standard retirement age and the minimum period of contribution completed in the public system. 2.     The standard retirement age [shall be] 60 for women and 65 for men. Following the date of entry into force of this Law, the [current] standard retirement age of 57 for women and 62 for men shall be [gradually] increased over a period of 13 years, in accordance with the staggered schedule set out in Annex 3. ... 5.     Insured persons who meet the conditions laid down in this Law for obtaining an old-age pension, with the exception of early retirement and partial early retirement, may continue working only with the consent of their employer, in accordance with the law.” 24 .     The matter is currently regulated by Law no.   263/2010 on the unitary public pension scheme (“the Pension Act”), which replaced Law no.   19/2000. The Pension Act applies to workers with an individual work contract (see the Labour Code, paragraph 25 below) and civil servants (Article 5 of the Act). Article   53   §   1 of the Pension Act sets out the conditions that need to be met for an individual to be entitled to an old-age pension. It sets the retirement age at 63 for women and 65 for men. In addition, Annex no. 5 sets out the retirement ages and the minimum and maximum periods of contribution for men and women separately, depending on their date of birth – from April   1944 to January 1967 for women, and from January   1939 to March   1950 for men. In accordance with the calendar set out in Annex no.   5, by 2030 the standard retirement age for women would be 63, and by 2015 the standard retirement age for men would be 65. Article 53 “1.     The standard retirement age [shall be] 65 for men and 63 for women. The [current] standard retirement age will be increased in accordance with the staggered schedule provided for in Annex no. 5.” The Labour Code 25 .     Law no. 53/2003 (“the Labour Code”) prescribes the termination of an individual work contract in the following terms: Article 56 “1.     An existing individual work contract ends by law: ... (c)     on the date when both the condition of the standard age for retirement and the condition of the minimum contribution period are met; ...” 26 .     This provision of the Labour Code was modified by Government Emergency Ordinance no.   96/2018, applicable as of 14 November 2018. In its new version, it read as follows: “1.     An existing individual work contract ends by law: ... (c)     on the date when both the condition of the standard age for retirement and the condition of the minimum contribution period are met, or, exceptionally, at the age of 65 for a female employee who, in writing, opts to continue with [her] individual employment contract at least 60 calendar days before the date when she reaches retirement age and [completes] the minimum contribution period for retirement; ...” 27 .     On 10 May 2019, when Emergency Ordinance no. 96/2018 was approved by Law no. 93/2019, the time-limit for making such a request was reduced to thirty days. Legislation on the civil service 28 .     The relevant provisions of Article 97 (a) and Article 98 § 1 (d) of Law no.   188/1999 on the civil service (“the Civil Service Act”), as worded until 3   July 2018, read as follows: Article 97 “Termination of the employment of civil servants ... takes place under the following conditions: (a)     automatically; (b)     by the parties’ agreement; (c)     upon release from public office; (d)     upon dismissal from public office; (e)     upon resignation.” Article 98 “(1)     An existing employment [contract] is terminated automatically: ... (d)     on the date when both the condition of the standard retirement age and the condition of the minimum period of contribution to the pension scheme are fulfilled; ...” Article 117 “The provisions of this Law shall be supplemented by the provisions of labour legislation, as well as by general civil, administrative or criminal law regulations, as applicable, in so far as they do not contravene the laws concerning the civil service.” 29 .     On 3 July 2018 Article 98 was amended by Law no. 156/2018 (on the amendment and supplementation of Law no. 188/1999), in order to allow the continuation of employment after a person had reached retirement age. The amended version read as follows: “(1)     An existing employment [contract] is terminated automatically: ... (d)     on the date when both the condition of the standard retirement age and the condition of the minimum period of contribution to the pension scheme are fulfilled, if the person who has the power to hire the civil servant does not apply the provisions of paragraph (3); ... (3)     On the basis of a request made two months before the date when both the condition of the standard [retirement] age and the condition of the minimum contribution period for the pension scheme are fulfilled, and with the approval of the head of the public authority or institution, the civil servant may be kept in the civil service position [he or she is already in] for a maximum of three years beyond the standard retirement age, by the work contract being extended on an annual basis.” 30 .     The Administrative Code (Government Emergency Ordinance no.   57/2019) entered into force on 31 December 2019 and replaced the Civil Service Act. Article 517 reproduced the content of Article 98 of the Civil Service Act as amended in 2018. Equal opportunity in the workplace 31 .     Law 202/2002 on equal opportunity and equal treatment for men and women (“the Equal Opportunity Act”) reads as follows, in so far as relevant: Article 9 § 1 (b) “It is prohibited for an employer to discriminate through the use of practices which place persons of a particular sex at a disadvantage in connection with employment relationships relating to: ... (b)     the conclusion, suspension, modification and/or termination of employment ...” 32 .     Government Emergency Ordinance no. 67/2007 on the application of the principle of equal treatment for men and women in occupational social security schemes (“OUG no. 67/2007”) transposed into domestic law the provisions of Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes and Council Directive 96/97/EC of 20   December 1996. Both directives were repealed on 14 August 2009 by Directive   2006/54/EC of the European Parliament and of the Council of 5   July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (see paragraph 70 below). The relevant provisions of the emergency ordinance read as follows: Article 2 “For the purposes of this emergency ordinance, the following terms and expressions shall have the following meanings: (a)     ’Occupational social security schemes’ – schemes whose purpose is to provide workers, whether employed or self-employed, in a business or group of businesses, area of economic activity, occupational sector or group of sectors with benefits intended to supplement the benefits provided by statutory social security schemes, or to replace them, whether membership of such schemes is compulsory or optional.” Article 8 “(1)     Provisions which are contrary to the principle of equal treatment are those which, based on sex, directly or indirectly, in particular by reference to marital or family status, establish: ... (f)     different retirement ages;” Article 9 “Provisions contrary to the principle of equality of treatment from the following laws ... concerning the status of military personnel, ... retirement benefits for military personnel, ... the pension scheme for diplomatic personnel, ... the police, ...judges and prosecutors, ... specialist ancillary personnel from courts and prosecutor’s offices, ... [from] the law on the status of members of parliament ... and civil servants from the parliament’s staff, and from other laws, collective bargaining agreements, company regulations or any other arrangements concerning occupational social security schemes shall be modified by 30 September 2007, in order to ensure that the principle of equal treatment will be effectively applied from 31 December 2008 at the latest, failing which those provisions shall become inapplicable.” Article 13 “If men and women request that a flexible retirement age system be applied to them under the same conditions, this does not infringe this emergency ordinance.” DECISIONS OF THE ROMANIAN CONSTITUTIONAL COURT 33.     On several occasions the CCR was called upon to examine the difference in retirement age between men and women. Its opinion evolved over a series of decisions, the most important being summarised in the following paragraphs. 34.     The CCR’s decisions become universally applicable on the date of their publication in the Official Bulletin. Decision no. 107 of 1 November 1995 (decision no. 107) 35 .     The CCR’s decision no. 107 (published on 26 April 1996) concerned the constitutionality of Article 8 § 1 of Law no. 3/1977 (see paragraph   22 above). 36.     It was argued before the CCR that the difference in retirement age set by law for men and women breached women’s rights and constituted discrimination based on sex, as it did not allow women to choose whether to retire or to continue working until reaching the same retirement age as that set for men. 37 .     The CCR dismissed the objection in the following terms: “... owing to the imperatives of raising and educating children, particularly in the early years, the increased burden placed on women in the household, the lack of widely accessible social and economic arrangements in the current transitional period to relieve them of these obligations, other aspects that make it difficult for them to advance professionally (maternity leave, postnatal leave, leave to care for a sick child, protective bans on working in certain environments, and so on), as well as other circumstances, women are placed at a disadvantage compared with men. Certainly, these situations will become less frequent and will disappear with time, as is happening in all European countries; this is characteristic of the development of modern societies. Today, however, most countries have different retirement ages, although the principle of gender equality is generally accepted. ... In our country, these socio-professional realities are uncontested, and therefore setting a single retirement age for both men and women would mean instituting equal treatment for different situations. It was also argued that setting an earlier retirement age for women affected their right to work enshrined in Article 38 § 1 of the Constitution. However, this argument cannot be accepted as long as, after retirement, one may simultaneously receive the old-age pension and a salary, as provided by Law no. 2/1991.” Decision no. 27 of 12 March 1996 (decision no. 27) 38.     On 12 March 1996 the CCR dismissed an appeal lodged against its decision no. 107 (see paragraph 35 above). The CCR reiterated: “In terms of retirement, it seems that the only reason for the different legal treatment of women compared with men is the ‘difference in sex’. In reality, it is not the difference in sex that leads to different legal treatment, but the social situation resulting from that difference, which justifies special constitutional protection for women. Discrimination exists only where the difference in legal treatment is simply and exclusively determined by the difference in sex.” Decision no. 888 of 30 November 2006 (decision no. 888) 39 .     In decision no. 888 (published on 24   January 2007), the CCR examined the constitutionality of several Articles of Law no. 19/2000 (see paragraph   23 above), in so far as it was argued that the existence of different periods of contributions to the pension scheme for men and women was discriminatory and put male workers at a disadvantage. 40 .     The CCR dismissed the objection and considered that although its previous decision no. 27 concerned the provisions of Law no.   3/1997, it also applied to Law no. 19/2000. It further noted: “The court cannot but note the trend in European States to equalise conditions for access to a pension for men and women, and the recommendations made by the European Union in this regard; this, however, remains a legislative goal which the Constitutional Court cannot achieve, as it exceeds the scope of its jurisdiction, it thus remains within the exclusive purview of the legislature.” Decision no. 191 of 28 February 2008 (decision no. 191) 41.     In decision no. 191 (published on 2 April 2008), the CCR reaffirmed the constitutionality of the provisions of Law no. 19/2000 concerning the difference between men and women as regards retirement age and the period of contribution to the pension scheme. It also concluded that Directive   2006/54/EC (see paragraph 70 below) was not applicable, as it concerned “occupational social security schemes” (Article 2 § 1 (f)) and did not cover public pension schemes such as those provided for by Law no.   19/2000 (see paragraph 23 above). The CCR reiterated that Directive   79/7/EEC, which it found to be applicable to the case (see paragraph   69 below), allowed member States to exclude from its application provisions on retirement age. For those reasons, it concluded that Law no.   19/2000 did not contravene the EU legislation on equal opportunities. 42.     The CCR further noted that the EU institutions had repeatedly recommended that EU member States equalise the retirement age for men and women. However, it reiterated that it did not have jurisdiction to decide whether it was opportune to legislate in a certain manner, and that it was for the legislature to consider the EU recommendations. 43.     Relying on Walker v. the United Kingdom (no. 37212/02, 22   August 2006), the CCR observed that the European Court of Human Rights had been flexible on the matter, and had accepted that a State policy of gradually harmonising retirement age had not breached Article 14 of the Convention. 44 .     The CCR concluded that at that point in time the Romanian social context had not undergone a radical change in relation to the aspects which had led the court, in its previous decisions, to uphold the constitutionality of the legislation instituting a difference in the retirement age for men and women. Decision no. 1007 of 7 October 2008 (decision no. 1007) 45 .     In decision no. 1007 (published on 20 November 2008), the CCR dismissed another objection of unconstitutionality concerning the difference in treatment in terms of retirement. In so far as the objection concerned Law no.   19/2000, the CCR reaffirmed its previous decision no. 191. As for the provisions of OUG no. 67/2007 (see paragraph 32 above), which were criticised for not being applicable to the public pension scheme, the CCR reiterated that equality of treatment did not require homogeneity and the legislature was free to implement different regulations for different situations. The CCR explained that Directive 2006/54/EC, which OUG no.   67/2007 transposed into domestic law, only applied to occupational social security schemes, whereas the general scheme, created by Law no.   19/2000, fell within the scope of Directive 79/7/EEC (see paragraph   69 below). That directive, the CCR reiterated, allowed States to exclude from its scope provisions regulating retirement age. Decision no. 1237 of 6 October 2010 (decision no. 1237) 46 .     In decision no. 1237 (published on 24 November 2010), the CCR dismissed an objection of unconstitutionality in respect of the Pension Act as a whole and several of its Articles in particular (see paragraph 24 above). The constitutional complaint, which was brought by several members of parliament, criticised, among other things, the gradual equalisation of the retirement age for men and women, which was perceived as an incorrect application of the constitutional principle of non ‑ discrimination, as it did not take into account “women’s physiological features”. 47 .     The CCR observed that cultural traditions and social realities were evolving towards ensuring real, de facto equality between the sexes. In that connection, it noted that important steps had already been taken by the legislature with a view to enhancing equality, such as allowing fathers to take parental leave, or harmonising the retirement age between men and women for certain professions, under OUG no. 67/2002 – notably, military, police, diplomatic and consular personnel. However, the CCR considered that at that time full equality could not yet be embraced by society, but could be reached within the fifteen-year time frame set by the Pension Act. 48 .     Relying on the CJEU’s case-law, the CCR affirmed that imposing a different retirement age for men and women was not likely to compensate for the disadvantages and difficulties women faced in their professional careers because of their social status. It further emphasised that child-rearing should not be seen as just a woman’s task, as in that regard, men and women were in a comparable situation. 49 .     The CCR thus concluded that it was necessary to change its previous approach to the issue of equalising men and women’s retirement age, as not doing so would run counter to a widespread European trend in that area with which Romania had to align. In the light of the above considerations, the CCR was satisfied that the legislative decision in the Pension Act to harmonise retirement age was in line with the State’s obligation to ensure equal and non ‑ discriminatory treatment of men and women as regards retirement. Decision no. 287 of 24 February 2011 (decision no. 287) 50.     In decision no. 287 (published on 25 May 2011), the CCR dismissed an objection of unconstitutionality in respect of a provision of the Pension Act (see paragraph 24 above) which concerned the reduction of both the retirement age and the period of contribution to the pension scheme for people who worked in difficult environments. 51 .     The CCR observed that the fact that, in some situations, the retirement age was different while the period of contribution was the same for both men and women did not constitute discrimination, but rather a step forward towards reaching equality between male and female workers. 52.     The CCR observed that, as a general rule, the law in question allowed women to retire earlier than men if they completed the period of contribution, which was identical for all workers. It pointed out that a difference in retirement age did not entail an automatic reduction of the period of contribution, as those were two different and unrelated issues. Decision no. 387 of 5 June 2018 (decision no. 387/2018) 53 .     On 5 June 2018 the CCR adopted decision no. 387/2018 concerning the constitutionality of Article 53 § 1 of the Pension Act and Article   56   §   1   (c) of the Labour Code (see, respectively, paragraphs 24 and 25 above). The decision was published in the Official Bulletin of 24 July 2018. 54 .     The CCR decided that the automatic termination of a woman’s work contract when she reached retirement age constituted discrimination based on sex and placed female workers at a disadvantage. 55.     The CCR reiterated that the conditions for acquiring the right to an old ‑ age pension, on the one hand, and the automatic termination of a work contract when those conditions were fulfilled, on the other hand, were different matters which required different examination. It relied on its previous case ‑ law and the case-law of the CJEU, notably the judgments in Kleist and Marshall (see paragraphs 75-77 and 71-73 below). 56 .     The CCR reiterated its previous decisions whereby it had found that the existence of different conditions for men and women for acquiring the right to an old-age pension (the Pension Act) did not constitute discrimination based on sex (decisions nos. 107, 888 and 1237, respectively in paragraphs   35 ‑ 37, 39-40, and 46-49 above) in so far as women had the opportunity to continue their employment by signing a new work contract and accumulating pension rights and salary (see paragraph 37 above, in fine ). It thus dismissed the complaint in so far as it concerned Article 53 § 1 of the Pension Act. 57 .     The court also examined, for the first time, the provisions of the Labour Code, and found that the automatic termination of employment at different ages for men and women constituted unjustified discrimination based on sex. It noted that termination of a work contract was triggered automatically when the relevant conditions were met, and neither the employee nor the employer could opt to continue work relations. The only option was for the parties to sign a new work contract. The consequent difference between men and women which was created was, in the CCR’s view, unjustified: “34.     From this perspective, the difference in treatment between men and women as regards the age at which an individual work contract ends automatically clearly becomes less of a measure designed to support women in view of their less favourable social, family and economic conditions and, on the contrary, creates a disadvantageous situation for those women who wish to exercise their right to work on equal terms with men. 35.     ... The court considers that the opportunity for a woman to exercise her right to work after retirement by concluding a new individual employment contract is not a sufficient guarantee of that fundamental right. Moreover, the court finds that in such a situation, there is a restriction of the right to work based solely on the criterion of sex, which does not meet the requirements of objective and rational justification. The reasons [behind] the establishment of different treatment for men and women as regards conditions for entitlement to a pension do not retain their logical basis when they are transposed to ... the automatic termination of an employment relationship, and cannot therefore be relied on as a basis for different legislation in the latter situation.” 58 .     The CCR concluded that the only interpretation of Article 56 of the Labour Code which would be in line with the Constitution, Directive   2006/54/EC, Directive 76/207/EEC and the CJEU’s case-law was that which would allow a female employee to opt to continue her employment until she reached the retirement age set for men. Decision no. 112 of 23 February 2021 (decision no. 112) 59 .     In decision no. 112 (published on 7 April 2021), the CCR declared Article   98   §   1   (d) of the Civil Service Act (see paragraph 29 above) unconstitutional. 60.     It was contested before the CCR that the fact that female civil servants’ employment contracts were automatically terminated at an earlier age than those of their male colleagues constituted discrimination based on sex. 61.     The CCR noted the evolution of the provision in question and examined Article 98 § 1 (d) of the Civil Service Act both before and after its amendment in 2018 (see paragraphs 28 and 29 above), as well as the equivalent provisions from the Administrative Code (see paragraph   30 above). 62 .     On the merits, the CCR found as follows: “The court finds that the legislative solution contained in Article 98 § 1 (d) of Law no.   188/1999, in its wording before the modification by ... Law no. 156/2018, and in Article   517 [of the Administrative Code], concerning the phrase ‘standard age conditions’ as regards the termination of a female civil servant’s employment, comply with the constitutional requirements... and with those of Article 14 § 1 (c) and Article   9 of Directive   2006/54/EC ..., only in so far as they do not prevent a female civil servant from requesting the continuation of her employment in exactly the same way as a male civil servant, that is, until she reaches 65 years of age.” Decision no. 387 of 8 June 2021 (decision no. 387/2021) 63 .     In decision no. 387/2021 (published on 5 August 2021), the CCR reaffirmed the constitutionality of Article 53 and Annex 5 of the Pension Act (see paragraph 24 above). DOMESTIC PRACTICE 64.     The Vrancea County Court examined applications similar to the ones lodged by the applicants, annulled retirement decisions issued by the ANAF, and ordered the reinstatement of female employees until they reached the retirement age for men (decisions of 4 November 2019, 3 June and 20   October 2020, which became final, as the Galati Court of Appeal dismissed appeals against those decisions). INTERNATIONAL MATERIAL 65 .     The Council of Europe Convention on preventing and combating violence against women and domestic violence (“the   Istanbul Convention”) was ratified by Romania on 23 May 2016. Article 4 – Fundamental rights, equality and non-discrimination “1.     Parties shall take the necessary legislative and other measures to promote and protect the right for everyone, particularly women, to live free from violence in both the public and the private sphere. 2 Parties condemn all forms of discrimination against women and take, without delay, the necessary legislative and other measures to prevent it, in particular by: – embodying in their national constitutions or other appropriate legislation the principle of equality between men and women and ensuring the practical realisation of this principle; – prohibiting discrimination against women, including through the use of sanctions, where appropriate; – abolishing laws and practices which discriminate against women.” LAW AND PRACTICE OF THE EUROPEAN UNION 66 .     The relevant provisions of the Treaty establishing the European Community (Nice consolidated version) (“the EC Treaty”) (see paragraphs   70 and 74 below) read as follows: Article 141 “1.     Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. 2.     For the purpose of this article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job. 3.     The Council, acting in accordance with the procedure referred to in Article 251, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. 4.     With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.” 67.     The relevant provisions of the Charter of Fundamental Rights of the European Union read as follows: Article 21 – Non-discrimination “1.     Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2.     Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.” Article 23 – Equality between women and men “Equality between women and men must be ensured in all areas, including employment, work and pay. The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.” Directives 68 .     The relevant parts of Council Directive 76/207/EEC of 9   February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, in force until 14 August 2009, read as follows: Article 1 “1.     The purpose of this Directive is to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is her[e]inafter referred to as ‘the principle of equal treatment’. Article 2 1. For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status. 2. This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor. 3. This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity. 4. This Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities in the areas referred to in Article 1 (1). Article 3 1. Application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy. 2. To this end, Member States shall take the measures necessary to ensure that: (a) any laws, regulations and administrative provisions contrary to the principle of equal treatment shall be abolished; (b) any provisions contrary to the principle of equal treatment which are included in collective agreements, individual contracts of employment, internal rules of undertakings or in rules governing the independent occupations and professions shall be, or may be declared, null and void or may be amended; (c) those laws, reg