Despre posibilitatea instanțelor judecătorești de a acorda drepturi bănești funcționarilor publici, constatând o situație de discriminare

Andreea TABACU

Abstract


In the field of pecuniary benefits and salaries for the public clerks the Romanian legislator has adopted a solution which is not entirely valid. The text of the Law no. 188/1999 is not clear, sending for the solution offered by a future regulation, which is still under debate. The amount of benefits for the public worker is not determined by the Law – lato sensu, so the clerks drew applications before the domestic courts, in order to determine the amount of their rights or to ask protection because they had suffered discrimination in breach of art. 14 read in conjunction with art. 6 of the Convention, or art. 1 from the First Protocol. The Romanian Constitutional Court delivered four decisions in 2008, in which it ruled that domestic courts are not allowed to determine and to conclude discrimination situations, mostly in the matter of public clerks’ benefits and pecuniary rights. The court’s assessments held that the fundamental principle of separation of powers is breached by the court’s decisions, so they have to conclude only on the norms and not on the differences in treatment for similar situations. This attitude might determine another breach of fundamental principles, stated in art. 6 of the Convention, by the Community law, or even the Romanian Constitution, so domestic courts may use the principle of precedence of the Convention as international law and also the precedence of Community law. Those principles reveal that the relationship between the provisions of the Convention or of the Treaty and the national law of the Member States is such that by the entry into force they render automatically inapplicable any conflicting provision of the national law.


Cuvinte cheie


pecuniary benefits; domestic courts; differences in treatment; public employees; national laws.

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