High Court of Cassation and Justice
PRESS RELEASE
In its session of 16 September 2024, the High Court of Cassation and Justice- Panel for the Clarification of Certain Points of Law in Civil Matters, lawfully established in each of the cases, considered six requests for a preliminary ruling for the clarification of certain points of law, and returned the following Judgments:
Judgement no. 39 in Case no. 989/1/2024
The Panel sustains the request brought by the Court of Appeal of Bucharest – Labour and Social Security Litigation Chamber and, in interpreting and applying the provisions of Art. 341 para. (2) of the Civil Procedure Code and in relation to the provisions of Articles 74 and 75 of the Civil Code, establishes that:
The evidence consisting of a recording of a telephone conversation between an employee and another employee or a representative of the employer, submitted in a legal dispute against the employer, is admissible, even if the recording was made without the consent and/or prior information of the other party, provided that a fair balance is struck between the right to present evidence, on the one hand, and the right to privacy, on the other, in the sense that the granting of the evidence must be indispensable for the exercise of the right to present evidence and must be strictly proportionate to that purpose.
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 16 September 2024.
Judgement no. 40 in Case no. 1038/1/2024
The Panel sustains the request brought by the Court of Appeal of Bucharest – VIII Administrative and Tax Litigation Chamber in case no. 6533/3/2022, and, as a result, establishes that:
In interpreting and applying the provisions of Art.39 para. (1) and (4) in relation to Article 6 lit. a), b) and c) of the Framework Law no. 153/2017 on the remuneration of personnel paid from public funds, as subsequently amended and supplemented, when determining the maximum level of remuneration in payment for similar positions, the salary rights recognized to other employees by definitive court rulings that have interpreted and applied generally applicable legal rules, cannot be taken into account, if that interpretation has been subsequently invalidated by a binding decision of the High Court of Cassation and Justice delivered in a clarification of certain points of law.
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 16 September 2024.
Judgement no. 41 in Case no. 1504/1/2024
The Panel sustains the request brought by the Tribunal of Covasna – Civil Chamber in case no. 582/119/2024, for a preliminary ruling, and consequently:
In interpreting and applying the provisions of Art. 106 para. (1), Art. 144 and Art. 146 para. (3) of the Labor Code, Art. 220 para. (1) and (5) of the Law No. 198/2023 on Pre-University Education, as subsequently amended and supplemented, respectively Art. 267 para. (1) and art. 270 of the National Education Law no. 1/2011, as amended and supplemented, in relation to Art. 5 para. (1) of the Methodological Norms on taking vacation leave for teaching, management, guidance and control and research personnel in public education, approved by Order of the Minister of Education no. 4.050/2021, establishes that:
In-service teachers who also carry out hourly-paid work by cumulating individual employment contracts at the same pre-university educational establishment do not benefit from additional paid vacation leave for the time effectively worked on an hourly-paid basis, or from compensation corresponding to the vacation leave days owed and not taken at the time of cessation of the individual fixed-term employment contract.
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 16 September 2024.
Judgement no. 42 in Case no. 1526/1/2024
The Panel denies as inadmissible the request brought by the Tribunal of Suceava – First Civil Chamber, in affaire no. 4380/86/2023, for a preliminary ruling for the clarification of the following point of law:
Whether the provisions of Article 211 para. (4) of Law no. 303/2022 regarding the statute of judges and public prosecutors, in its original form, according to which ‘persons who have at least 25 years of seniority solely in the duties listed in para. (1) may retire at the age of 60 and receive a service pension, even if they have another occupation at the time of retirement”, applies to former judges/prosecutors who have such seniority, without any distinction between the functions listed in Art. 211 para. (1) (“at least 25 years’ seniority in the positions of judge, prosecutor, judge of the Constitutional Court, assistant magistrate at the High Court of Cassation and Justice and at the Constitutional Court, specialized legal staff assimilated to judges and prosecutors, financial judge, financial prosecutor or accounts counsellor of the jurisdictional section of the Court of Auditors, lawyer, legal specialized staff in the former state arbitrations, court clerk holding a law degree, legal adviser or jurisconsult”), in accordance with the principle ubi lex non distinguit, nec nos distinguere debemus.
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 16 September 2024.
Judgement no.43 in Case no. 1505/1/2024
The Panel sustains the request brought by the Tribunal of Vâlcea – First Civil Chamber in case no. 414/90/2024 and by the Tribunal of Bucureşti – The VIIIth Labor and social security litigation Chamber, in affaires no. 5224/3/2024, no. 7582/3/2024 and no. 4204/3/2024, for a preliminary ruling, and consequently establishes that:
In interpreting and applying the provisions of Article 38 para. (3) of the Framework Law no. 153/2017 on the remuneration of personnel paid from public funds, as subsequently amended and supplemented, the gross amount of the base salaries, respectively of the employment allowances within the occupational family of budgetary functions “Justice”, established by reference to the sectoral reference value of 605.225 RON, shall be increased, as of January 1, 2018, by 25% compared to the level granted for December 2017, to the extent that the personnel concerned performs their work under the same conditions and the employers have not already granted this increase.
Dismisses the remaining related complaints as inadmissible.
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 16 September 2024.
Judgement no.44 in Case no. 475/1/2024
The Panel sustains the request brought by the Court of Appeal of Constanţa – Administrative and Tax Litigation Chamber, by its Judgment of January 8, 2024, rendered in Case no. 1.654/88/2022, for a preliminary ruling and, consequently, establishes that:
In interpreting and applying the provisions of Article 60 para. (5), Art. 1381 and Art. 154 para. (1), r) of Law no. 227/2015 on the Tax Code (form in force as of January 1, 2021), employers whose registered business activity is “Manufacture of metal structures and component parts of metal structures” – CAEN Code 2511, shall apply the tax facilities only for those activities directly related to activities in the construction sector, defined as such in Section F – “Construction” of Order no. 337/2007.
In interpreting and applying the provisions of Article 13 para. (6) of the Code of Fiscal Procedure, the previous findings of a territorial labor inspectorate, requiring an employer to pay the gross minimum wage guaranteed for the construction sector, do not constitute grounds for subsequently requiring the tax authority to recognize the right to the application of tax facilities, governed by Article 60 para. (5), Article 1381 and Article 154 para. (1), r) of Law no. 227/2015 on the Tax Code.
Mandatory, as under Art. 521 para. (3) in the Civil Procedure Code.
Returned in public hearing, today, 16 September 2024.
After the justification is written and the Judgment signed it shall be published in the Official Journal of Romania, Part I.