Correct interpretation of article 289 of the National Education Law no. 1/2011 concerning the terms under which the teaching and research staff in higher education may continue their activity following their retirement age
| Author | Serban Beligradeanu |
| Pages | 1-12 |
1
CORRECT INTERPRETATION OF ARTICLE 289 OF THE
NATIONAL EDUCATION LAW NO. 1/2011 CONCERNING
THE TERMS UNDER WHICH THE TEACHING AND RESEARCH
STAFF IN HIGHER EDUCATION MAY CONTINUE THEIR ACTIVITY
FOLLOWING THEIR RETIREMENT AGE
*)
Şerban Beligrădeanu, Ph.D
Abstract
Law no. 1/2011 on the National Education, effective since February 2011,
under Article 289 regulated anew the regime on the legal relationships of employment
after retirement age for teaching and research staff in higher education in
Romania (public, private or religious).
In this respect, the above mentioned bill, after having established the
principle that this staff shall retire at the age of 65, sets to rights terms under
which academics and researchers may continue their activity in higher education
establishments, following retirement.
Study hereby is to review these terms.
Keywords: Law no. 1/2011 on National Education; teaching and research
staff; retirement age; activity developed after reaching the said age; terms;
applicable legal regime
1. Previous Teaching Staff Statute (Law no. 128/1997
1)
) established the
following:
„Article 129 – (1) University professors and lecturers with a PhD title may
preserve their position until reaching the age of 65.
(2) When reaching the retirement age, university professors and lecturers with
a PhD title ... proving high professional expertise can be maintained in the
teaching position as tenurials, upon request, with the approval of the faculty
council and the annual university Senate vote, on a show of hands, up to reaching
the age of 70.”
The subject matter of wording cited above is resumed in a more complex
manner, but with essential differences within Article 289 under the recently
enforced National Education Law no. 1/2011, regulation stating as follows:
„Article 289 – (1) Teaching and research staff shall retire at the age of 65.
*)
Article translated from the Romanian language b y Cerasela Anghel (Casa de traduceri). It
was published in „Dreptul” Magazine no. 4/2011, pp. 11-23; e mail office@ujr-dreptul.ro.
1)
Law no. 128/1997 on the Teaching Sta ff Statute, published in the „Official Gazette of
Romania”, Part I, no. 158 of July 16
th
, 1997, as subsequently amended and supplemented, repealed
by the National Education Law no. 1/2011, 30 d ays from the effective date of this Law, published
in the „Official Gazette of Romania”, Part I no. 18 of January 10
th
, 2011.
2
(2) In public, private and religious higher education, holding any management
or administrative position at all university level following retirement is strictly
prohibited. Terms of office of people holding management or administrative
positions at all university levels cease by rights in terms of persons who have
reached retirement age. By way of exception to these rules there are membership
positions of private universities’ board of directors.
(3) The university Senate in public, private and religious universities, based
on criteria of professional expertise and financial position, may decide upon
continuing the activity of a teacher or researcher after retirement, under a 1-year
agreement, renewable annually under the Charter of the university, irrespective of
age. University Senate may decide to confer the honorary title of professor
emeritus, for teaching and research excellence, to teachers who have reached
retirement age. Retired teachers may be remunerated under payment by the hour.
(4) Teaching and research staff in charge of doctoral studies shall retire at the
age of 65 and:
a) may lead PhDs in progress at the date of retirement until reaching the age
of 70;
b) after reaching the age of 65, they may act as advisors for new PhD students
under the system of joint co-advisors along with a teaching and research staff who
shall not reach retirement age over the course of the relevant doctorate.
(5) The legal regime of overlapping salary with pension shall not apply to
teaching staff for whom provisions of paragraphs (3) and (4) are applicable”.
Since the new regulation in the matter not only differs significantly from the
previous one, but at the same time, raises, in our view, a number of interpretative
issues, therefore we shall undertake to perform below an analysis of the litigious
law.
2. A) The wording of Article 289 par. (1) of Law no. 1/2011
2)
can generate
debates on the meaning of the text, under two perspectives, namely:
• whether it regulates or not mandatory retirement;
• consequence – in terms of individual employment contract termination –
of „reaching the age of 65” by teaching and research staff in higher education.
a) Prima facie, par. (1) of Article 289 of Law no. 1/2011 could fancy that,
ope legis, relating to teaching and research staff in higher education, there might
2)
It is undisputed that Article 289 of Law no. 1/2011 covers exclusively retirement – at
reaching the age of 65 – of „teaching and researc h staff in higher education” since the text is
placed within Chapter II of Title IV entitled „Statute of teaching and research staff in higher
education” (Articles 285-327 of the Law) and not within Chapter I (Title IV), respectively,
Articles 232-284, entitled „Statute of teac hing staff in pre-university education”, chapter under
which retirement of the latter category is di fferently regulated in Article 284, that we shall
examine some other time and which is radically different in form as compared to Article 289 of
Law no. 1/2011, undergoing reviewing hic et nunc.
3
be set up a (legal) retirement obligation, since the text establishes that the relevant
staff „shall retire when reaching the age of 65”.
In reality, though, such a legal duty does not exist and could not be enacted,
either, since the Constitution of Romania (revised and republished) in Article 47
par. (2) provides that „Citizens are entitled to retirement pension”.
Under the circumstances, a right set forth under the Fundamental Law can not
be converted into a legal duty
3)
.
Consequently, the acceptance of Article 289 par. 1 of Law no. 1/2011 is that,
unlike common law (Law no. 263/2010, effective since January 1
st
, 2011), old-age
pension for teaching and research staff in higher education is appropriate, both
for women and men, only after reaching the age of 65 (instead of 65 years for men
and 63 years for women, as a rule, from which there are some exceptions, under
the system of Law no. 263/2010
4)
).
b) Neither Article 289, nor any other provision of Law no. 1/2011 provide
retirement effects for teaching and research staff in higher education when
reaching the age of 65 in terms of individual employment contract termination.
Therefore, considering Article. 1 par. (2) of Law no. 53/2003 (Labour
Code)
5)
, Article 56 par. (1) point d) of this Code turns into a point of law, under
which „The individual employment agreement is terminated by rights: ... d) on
cumulative fulfilment of conditions of standard age and the minimum contribution
period for retirement”
6)
.
Hence, fundamentally in this case, not retirement of the person concerned
entails termination de jure of individual employment agreement, but only the
cumulative fulfilment of (mandatory) retirement conditions relating to standard
age and minimum contribution period.
Hereupon, it is hold aberrant the assertion, sometimes conveyed by some
dilettantes, pseudo-legists and pseudo-specialists, under which, in the
circumstances, the reason under the law of termination of employment agreements
3)
Therefore, the current law in the matter [Law no. 263/2010 on the unified public pension
system („Official Gazette of Romania”, Part I, no. 852 of December 20
th
, 2010, as amended and
supplemented by Government Emergency Ordinance no. 117/2010, published in the „Official
Gazette of Romania”, Part I, no. 891 of December 30
th
, 2010)], unlike previous laws on pensions,
does not cover any longer at least by way of exce ption, grantin g pension on the employer’s
request, Article 103 par. ( a) of this law establishin g, without any limitations or waivers, that
„Pension is granted at the request of the entitled person, its guardia n or custodian, foster care of
minor child, if applicable, filed personally or by an agent appointed under special proxy”.
4)
See, on these lines, Article 53 et seq., in conjunction with Annex 5 of La w no. 263/2010.
5)
Article 1 p ar. (2) of the Labour Code (Law no. 53/2003) states: „Code hereby shall also
apply to employment relationships regulated by special laws, insofar as these do not contain any
special derogations thereof”.
6)
The purpo rt of Article 56 par. (1). d) of the Labour Code is rendered under the wording of
Article IV, section 1 of Law no. 49/2010 („Official Gazette of Romania”, Part I, no. 195 of March
29
th
, 2010).
4
would be even Article 289 par. (1) of the Law, since this text refers exclusively to
(mandatory) retirement date of those concerned, and not to the corollary of this
situation (termination of individual employment agreement).
Finally, we shall add that, under the exceptional situation in which the (higher
education) teaching/research staff refuses to retire when reaching the age of 65
(irrespective of reason), undoubtedly occurs termination de jure of his individual
employment agreement although, as already pointed out, in Romania application
for old age pension is not mandatory, but optional
7)
.
B) a) Article 289 par. (2) of Law no. 1/2011 establishes the principle
according to which holding any management or administrative position at all
university levels following retirement in public, private and religious higher
education is strictly prohibited. Of course, mandatory retirement is allowed for
(and not disability grade III), whereas, further on, the text refers to „reaching
retirement age” (which leads to the cessation of „term of office” of people
holding management or administrative positions „at any university level”
8)
).
b) Of course, termination de jure of the term of office, under the
aforementioned terms, as a result of reaching „retirement age”, on the one hand,
for teaching and research staff in higher education, entails – as already pointed
out – termination de jure of the individual employment agreement [as per Article
56 par. (1) point d) of the Labour Code], and on the other hand, the possibility of
concluding a 1-year contract, under Article 289 par. (3) of Law no. 1/2011
9)
.
c) Finally, we also emphasize that, according to Article 215 par. 1 of the Law,
although after reaching the retirement age „holding” any management position in
public, private and religious universities is strictly prohibited
10)
, there are though
7)
Obviously, t he termination de jure of individual employment agreement may not occur [ in
terms of Article 56 par. (1) point d) of the Labour Code] should the person i n question, on
reaching the age of 65, fail to meet the condition of „minimu m contribution period for retirement”.
Therefore, in this case, there may occur termination of agree ment only for one of the other grounds
set forth under the Labour Code (agree ment of the parties; Article 61 or Article 65 of the Code;
resignation).
The aforementioned references stand, in fact, for a school situation, being difficult to imagine
that a higher educatio n teacher or researcher, at the age of 65, does not currently have a minimum
contribution period (10-15 years, see Annex no. 5 to Law no. 263/2010). We argue that in this case
the individual employment agreement could not be terminated d e jure, by analogy with Article 289
par. (2) of Law no. 1/2011, whereas this text (excep tion) refers only to termination de jure of the
terms of office of those holding management or administrative functions, for those who have
reached retirement age (65 years), and not the termination de jure in itself of their individual
employment agreement.
8)
Ultimately, to t his rule, Article 289 par. (2) provides a single exception, namely applicable
to those acting in the capacity as „member of private universities’ bo ard of directors”.
9)
See point 2 section C) in the study hereby.
10)
It is indisputable the logical connection between Article 289 par. (2) and Article 21 5 par.
(1) in fine of Law no. 1/2011.
5
exempted ongoing terms of office on the law’s effective date (30 days after
issuance of the law, which occurred on January 10
th
, 2011).
Therefore, with respect to such „ongoing” terms of office for management
positions, their termination de jure is no longer operational (if those concerned
have reached the age of 65), according to Article 289 par. (2) of Law no. 1/2011,
but they shall cease (due to other grounds, including their expiry) at a date
subsequent to reaching the said age by holders of relevant terms of office.
d) In this case, on our part, we also judge that, given the natural link between
the management position within a university and the university teaching
(research) position, it seems reasonable that, in the relevant case, termination de
jure of employment agreements of individuals concerned, in accordance with
Article 56 par. (1) point d) of the Labour Code, shall no longer occur upon the
effective date of Law no. 1/2011, but on the date of termination of „ongoing terms
of office” of people concerned [Article 215 par. (1), in fine], even if they have
already reached or shall reach in the meantime the age of 65.
Indeed, we deem as nonsensical termination de jure of the employment
agreement for the relevant university teaching (research) position of those who
have been appointed to hold university management positions in view of the
quality of teaching (research) staff at the relevant university, on the ground they
have reached the age of 65, but for a longer period (until the termination de jure
of the ongoing term of office) to preserve them in academic management
positions, such as chancellor, vice chancellor, dean, vice dean etc. at the relevant
university (higher education institution)
C) Under Article 289 par. (3) of Law no. 1/2011, first sentence, the university
Senate is allowed under certain circumstances to decide upon „the continuation of
the activity carried out by a teaching or research staff following retirement, under
a 1-year agreement, renewable annually under the Charter of the university, with
no age limit thereto”.
Some explanations are required.
Thus:
a) Obviously, the conclusion of a similar agreement is always optional, as the
annual extension thereof is also optional, the wording referring to the university
Senate being able to decide upon activity resumed, with the possibility of annual
extension of the agreement;
b) Article 289 par. (3) regulating the possibility of concluding „a 1-year
agreement, renewable annually ...” raises the question whether such an
„agreement” should necessarily be exclusively a labour one or, should parties
agree, it could be also/or civil (civil service agreement).
On our part, we argue that the second solution is applicable and that therefore,
under the relevant assumption, the possibility of concluding a civil service
agreement appears to be legally (instead of an individual employment agreement),
as wording of Article 289 par. (3) of Law no. 1/2011 makes exclusive use of the
6
term agreement, and not the phrase individual employment agreement. We doubt
we have to do with some inaccuracies in the text, but with the will of the
legislature which, when it held that in a given situation the conclusion of an
individual employment agreement is required exclusively, it expressly stated so.
Therefore, Article 166 par. (3) under the Law provides that „With the view to lead
doctoral studies, teaching and research staff having been granted this right must
have an employment agreement” concluded with an establishment „entitled to set
up a doctorate program”.
It is no less true that the wording of Article 289 par. (3) under this perspective
reveals to us at least arguable, as there is no justification, legal or rational, that,
under the assumption covered by Article 289 par. (3), those concerned, as
appropriate, shall be able to develop their activity either under an individual
employment agreement or a civil service agreement, but, conversely, under the
case covered by Article 289 par. (4) – following reemployment subsequent to
retirement people in question are PhD advisors – performance of the activity may
occur exclusively under an individual employment agreement [as the same law
provides under Article 166 par. (3)];
c) Article 289 par. (3) provides that the conclusion of agreements to which
we referred to occur for the continuation of the activity performed by the
teacher/researcher „following retirement”, upon the decision of the university
Senate.
It rests ambiguous whether such a „continuation” of activity may occur
exclusively at the higher education institution within which the person concerned
used to activate until retirement or within any other higher education institution.
We appreciate that the phrase „activity carried on by a teaching or research
staff following retirement” may be applicable not only within the higher education
institution where the person in question used to be employed until reaching the
retirement age (65 years), but also within any other, whereas, on the one hand,
purport of Article 289 par. (3) does not provide for such a limitation, and on the
other hand, the activity of the teacher/researcher (and not, strictly speaking, the
employment agreement) may be carried on, at any time, without distinction as
one such „activity” shall be performed in the future (further on), within the same
or another higher education institution;
d) Admittedly, the provisions of Article 289 par. (3) of Law no. 1/2011 – on
agreements concluded on fixed-term of one year, renewable – as far as they are
individual employment agreements, are overriding rules from the provisions of
Article 80 et seq. in the Labour Code, which governs the principles of concluding
fixed-term individual employment agreements;
e) Article 289 par. (3), providing that such agreements shall be concluded
„irrespective of age” and only after the retirement of the person in question, leads
to the conclusion that these can be concluded by higher education teaching/
research staff at any age (over 65) and not only until the age of 70, as was
7
heretofore set forth under Article 129 par. (2) of the previous Teaching Staff
Statute (Law no. 128/1997).
Consequently, it can be argued that, in this regard, the current regulation
provides, in better conditions, elimination of discrimination (in relation to age)
prohibited under Article 2 par. (2), Article 3 letter a and Articles 5-8 of the
Government Ordinance no. 137/2000 on preventing and sanctioning all forms of
discrimination
11)
.
On the other hand, the text explicitly stating that such agreements shall be
concluded only after the retirement of the teacher or researcher, hence it appears
that, where such an „academic”, although his employment agreement was
terminated „when reaching the age of 65” [under Article 56 par. (1) point d) of the
Labour Code], however, for whatever reason, he has not yet been „retired”, he
can not conclude a fixed-term agreement of one year, under Article 289 par. (3),
such conclusion being possible only subsequently, after the „academic” in
question finally „retires”.
f) Since Article 289 par. (3) of Law no. 1/2011 expressly provides that,
according to the relevant text, there may be concluded fixed-term agreements of
one year, renewable annually, it is inferred that such agreements could not be
concluded for a shorter or longer term.
The regulation is fair, in our view, considering the particularity of educational
activities taking place scheduled for one academic year (school, university).
g) Since provisions under Article 289 par. (3) of Law no. 1/2011 keep
general interest in view
12)
, we hereby judge that non-compliance of provisions
relating to the fixed period of the agreement (one year) makes them absolutely
void, obviously with the possibility of their review.
Such being the case, we argue that an agreement concluded either for
indefinite term or for fixed term, but longer or shorter than one year, is null and
void.
However, we emphasize that the regulation is extremely rigid as we may
judge it, as there may be situations where it is necessary to conclude the
agreement on terms of more or less months, so as the relevant period overlaps the
length of the academic year or, conversely, are not necessary during an entire
year.
D) Article 289 par. (4) covers some special regulations relating to teaching
and research staff in higher education acting as „PhD advisors”.
In this respect, the aforementioned regulation, after reaffirming the provision
of Article (1) (and these „academics” shall retire „on reaching the age of 65”),
contains two particular regulations, namely:
11)
Republished in the „Official Gazette of Romania”, Part I, no. 99 of February 8
th
, 2007,
subsequently amended/supplemented.
12)
In r espect of such general interest, see pro visions of Article 2 par. (1)-(3) and (7) of Law
no. 1/2011.
8
People concerned [obviously if they have concluded fixed-term (individual
employment) agreements for one year, according to Article 289 par. (3), as Article
289 par. (4) does not cover separate regulations in this regard], can lead further on
doctoral studies „in progress at the date of retirement”, but no later than advisors
we refer to reach the age of 70.
Compared to the wording of Article 289 par. (4) point a), it appears that
starting with that time (the PhD advisor reaching the age of 70) the incidence of
purport ceases, even if the activity of PhD advisor is „in progress” is not
completed yet (the PhD student not having defended his doctoral thesis yet, for
which he is still on term).
Consequently, two solutions can be applied, namely: either the existing PhD
advisor is changed (him reaching the age of 70) or the PhD „in progress” advisor
is further preserved, but under „the system of joint co-advisors”, as per the terms
set forth below, point b) of study hereby.
It goes without saying that regulation under Article 289 par. (1) point a) can
exclusively cover PhD advisors that „carry on” their business within the same
higher education institution and not another, whereas within a different
establishment they can not act as PhD advisors for doctorates „in progress”.
b) According to Article 289 par. (4) point b) of the law [if there is not the case
for the assumption covered by point a) of the text, therefore, doctoral programs
„in progress on the retirement date”], after reaching the age of 65 (and,
obviously, following their retirement) people concerned may also advise „new
PhD students”, but only „under the system of joint co-advisors”, therefore along
with a teacher/researcher, but who shall not reach retirement age (i.e. the age of
65) „over the course of the relevant doctorate”.
In relation to Article 289 par. (4) point b) of Law no. 1/2011, we must
underline that the purport no longer provides [in contradistinction to point a)] that
a similar system (joint co-advisors) can last only until the retired person [having
reached the age of 65 and having concluded an agreement under Article 289 par.
(3)] reaches the age of 70.
Therefore, „under the system of joint co-advisors”, „for new PhD students”,
the relevant person may carry its advisory business in respect of the latter ones
also after reaching the age of 70, whereas, notwithstanding any express contrary
provisions thereto [as under Article 289 par. (4) point a)], the principle enshrined
in Article 289 par. (3) becomes a point of law, so the annual conclusion of
contracts for carrying work further following retirement is possible „without age
limit”. In other words, applicability of Article 289 par. (4) point b) is admissible
until any age reached by the retired person, but obviously only as long as this
person is allowed to conclude the agreement, drawn up annually, on fixed term,
unlike the situation covered by Article 289 par. (4) point a), when point of law of
that purport is limited, expressly, only until the said person previously retired
reaches the age of 70.
9
c) Finally, we remind that, as PhD advisors are concerned, having regard to
the provisions of Article 166 par. (3) of the Law, the activity regulated under
Article 289 par. (4) [either point a) or point b)] can occur exclusively under an
individual employment agreement, concluded for a fixed-term for one year (and
not under a civil service agreement) and that even if the relevant PhD advisor, in
addition to such activity, performs a (regular) teaching/research activity [under
Article 289 par. (3) of the Law].
E) Lastly, under Article 289 par. (5) of the Law, „the legal regime of
overlapping salary with pension shall not apply to teaching staff for whom
provisions of paragraphs (3) and (4) are applicable”.
It is beyond any doubt that, under the regulation cited herein, Article 289 par.
(5) waives from the provisions of Articles 17 to 19 of Law no. 329/2009
13)
on the
ban of overlapping salary with pension by those who, earning wages within
budgetary authorities (as are public higher education institutions), also benefits
from a pension exceeding the amount of gross median household salary (income)
used in substantiating the state social security budget for the current calendar year,
approved under the state social security budget law
14)
.
Therefore, even if the staff under Article 289 par. (3) or par. (4) of Law no.
1/2011, for the year 2011, employed within public higher education institutions
(universities) state, enjoying a net pension (in 2011) over 2,022 lei (RON) per
month, receive (thus aggregating) salary rights from a public higher education
institution, people concerned have the full rights to both pension and „budgetary”
salary, notwithstanding the prohibition of such aggregation set forth under Article
17 et seq. of Law no. 329/2009
15)
.
With reference to the purport of Law no. 1/2011 analyzed hereby, two
mentions are imperative, namely:
a) Article 289 par. (5), expressly stating to be applicable only to those who
„benefit from the provisions of par. (3) and (4)” (under Article 289), no doubt that
the purport’s gain can not be raised by those concerned by par. (2) of Article 289
13)
Law no. 329/2009 on the reorganization of public authorities and in stitutions, rationalizing
public spending, business support and compliance of framework a greements with the European
Commission and International Monetary F und was published in the „Official Gazette of
Romania”, Part I, no. 761 of November 9
th
, 2009.
14)
For 201 1, this gros s median household salary ( income) amounts to 2,022 lei, according to
Article 15 of Law no. 287/2010 on social security budget for the year 2011, published in the
„Official Gazette of Romania”, Part I, no. 880 of December 28
th
, 2010.
15)
For details on ban on this ag gregation, see also Ş. Beligrădeanu, I. T. Ştefănescu
ConsideraŃii referitoare la unele dispoziŃii în legătură cu salarizarea personalului plătit din fonduri
publice, cumulul pensiei cu salariul şi la negocierea colectivă înscrise în Legile nr. 330/2009 şi nr.
329/2009, precum şi în OrdonanŃa de urgenŃă a Guvernului nr. 1/2010 (Approaches on certain
provisions relating to remuneration of staff paid from public funds, overlap ping pension with
salary and collective bargaining enshrined in Laws no. 330/2009 and no. 329/2009, as well as in
Government Emergency Ordinance no. 1/2010), in „Dreptul” („Law”) no. 4/2010, pp. 31-35.
10
(people holding management or administrative offices in higher education, the
public one indeed), even if, temporarily, they still pursue their „term of office in
progress” for a while, subsequent the effective date of Law no. 1/2011, pursuant
to Article 215 par. (1) last sentence of the relevant law;
b) Although Article 289 par. (5) sets forth that the legal regime of overlapping
salary with pension „does not apply to teaching staff covered by the provisions of
par. (3) and (4)”, we hereby argue that this is another case where we have to do
with a wording inconsistency. Indeed, since provisions under Article 289 par. (1)-
(4) are points of law, invariably, for both teaching staff and research staff in
higher education, it appears incomprehensible (absurd) that the regulation’s
benefit [Article 289 par. (5)] be applicable to teaching staff exclusively, excluding
research staff.
In other words, in this particular case, a rational interpretation must prevail,
instead of a Talmudic one.
3. In conclusion, although a number of provisions under Law no. 1/2011 may
be construed, sometimes, as at least questionable, we argue that, despite some
wording inconsistencies, Article 289 of the Law should be considered as positive
law, due to at least two reasons, namely:
• It allowed further maintenance of teaching and research staff (on the
strength of concluding annual agreements) irrespective of age (so also after
reaching the age of 70
16)
), should they continue to achieve „performance criteria”
and financial resources of the higher education institution authorise it;
16)
We hereby remind (see above, section 1 of this stud y) that, according to Article 129 par.
(2) of Law no. 1 28/1997 (the previous statute of teaching staff, full y repealed by Law no. 1/2011),
university professors and lecturer s with a PhD title could be maintained in the teaching position as
tenurials, by way of exception, up to reaching the age of 70 at most.
Please also note that under Law no. 481/2006 („Official Gazette of Romania”, Part I, no.
1025 of December 22
nd
, 2006) Article 129 of La w no. 128/1997 was sup plemented with a par. (3),
under which professors, members of the Romanian Academy or the Academy of Sciences, could be
hold in office over the age of 70 also, „with the agreement of the institution they are employed
with, on account of annual extensions”. Though, the Co nstitutional Court held by majority that this
text was unconstitutional, regulating an unjustifiable discrimination in relation to Article 129 par.
2 of the same law (Constit utional Court, Resolution no. 599/2009, published in the „Official
Gazette of Romania”, Part I, no. 329 of May 18
th
, 2009).
Finally, we point out that unde r Article 10 par. (2) of Law no. 264/2004 on the organization
and operation of the Academy of Medical Sciences („Official Gazette of Romania”, Part I, no. 605
of July 6
th
, 2004) it is provided that after reaching the age of 70, members of this academy, in their
capacity as full or corresponding members, „are maintained in holding office only on account of
agreement of the institution they are employed with, b y wa y of annual extensions under a health
certificate”. Article 10 par. (2) of Law no. 264/2004 was deemed constitutional under Resolution
no. 654/2007 issued by the Constitutional Court, published in the „Official Gazette of Romania”,
Part I, no. 582 of August 24
th
, 2007.
We hereby e mphasize that in relation to the generality of Article 10 par. (2) of Law no.
264/2004, it appears, in our view, that it stands for a point of law also in regard of members (full
11
• It dropped out the prohibition of overlapping salary with pension for those
who fall within the provisions of Article 289 par. (3) and (4) of Law no. 1/2011.
Not less but in our view, implementation of Article 289 (par. 1-4) of Law no.
1/2011 of February 9
th
, 2011 proved to be an improper legislative solution likely
to seriously disrupt the educational process as a result of termination de jure, ex
abrupto, of individual employment agreements for many academic teaching staff
having reached on the law’s effective date the age of 65 (usually professors or
associate professors).
Therefore, it would have been reasonable that the implementation of this
purport, notwithstanding the rule, to have occurred a few months later, namely on
the last day of the academic school year 2010-2011, so that this legislative
measure not to have awaken serious disruptions in Romanian higher education, as
it actually did happen
17)
.
or corresponding) of the Academy of Medical Sciences who act as teach ing staff in medical higher
education.
On the other hand, in relation to Article 289 of Law no. 1/2011, Article 10 par. (2) of Law no.
264/2004 as an exceptional text, in our vie w, it is currently still effective, based on the principle
that change in general law or adopting any other general law (Law no. 1/2011) does not alter the
special law (La w no. 264/2004), considering that specialia generalibus deroga nt, respectively,
generalia specialibus non derogant.
No doubt, those mentioned in the end of this note shall be applicable, for the identity of
reason, also in cases of exceptional (special) regulations in the field (academic teaching or research
staff, members of other academies) covered in other legal regulatio ns.
17)
On these lines, we hereby point out that, aiming probably to alleviate some of the
consequences of such disruptions, by Order of the Minister of Education, Research, Youth and
Sport no. 3753/2011 on approving transitional measures in the national education system
(„Official Gazette of Romania”, Part I, no. 104 of February 9
th
, 2011 ) it is provided (Article 12,
Annex 2 of the Order) as follows:
„Article 12 – Higher education teaching staff who r etire in accordance with Article 289 par.
(1) (of Law no. 1/2011, parenthetically – Ş.B) before completing the academic year 2010-2011
may carry further their activities relating to the academic year 2010-2011 following retirement,
without th e approval o f the university Senate (s.n. – Ş.B) under Article 289 par. (3) of Law no.
1/2011, pending completion of the academic year 2010-2011.
Prima facie, the text cited above seems contra legem becaus e Law no. 1/2011 does not allo w
the relevant Minister the right to grant exemptions to the rule of approving activity carried further
by those concerned, following retire ment, by the university Senate. However, we judge hereby that
the litigious rule could fi nd its legal basis under Article 361 par. 6 of Law no. 1/2011, text holding
that „Within eight months after the effective date of this Law, t he Ministry of Education, Research,
Youth and Sports shall draw up methodologies, rules and other regulations deriving from the
implementation of this law and shall set up transitional measures for its implementation” (s.n. –
Ş.B). However, ruling out the need for approval by the university Senate for the period between
February 2011 and the end of the academic year 2010-2011 (i.e., a few months), in this case, we
argue that it may be regarded as a transitional measure for the implementation of Law no. 1/2011,
within the meaning of Article 3 61 par. (6) thereof (purport cited in the prea mble of the Order of
the Minister of Education, Research, Youth and Sport no. 3753/20 11).
12
4. Last, but not least, a clarification appears to be imperative. Indeed, there is
no doubt that Article 289 of Law no. 1/2011 is a special rule, designed exclusively
for teaching and research staff in higher education. This being the case,
interpretations, solutions and conclusions set forth in this study can not be, in
principle, applied tale quale, to other staff categories, even if these persons,
regardless of sex, „retire at the age of 65”. So, for example, according to Article
385 par. (1), Article 484 par. (1) and Article 565 par. (1) of Law no. 95/2006 on
healthcare reform („Official Gazette of Romania”, Part I, no. 372 of April 28
th
,
2006), in the version given to these texts under Law no. 264/2007, doctors,
dentists and pharmacists respectively, „shall retire at the age of 65 regardless of
sex”. Although aforementioned purports are entirely consistent with Article 289
par. (1) of Law no. 1/2011, interpretations, solutions and conclusions set forth in
this study can not be, as a rule, applicable to doctors/dentists/pharmacists, since
wordings under Article 289 par. (2)-(4) of Law no. 1/2011 differ quite
significantly from those recorded in the remaining paragraphs of Article 385,
Article 484 and Article 565 of Law no. 95/2006. Hence eadem, sed aliter. That
being so, application tale quale of interpretations and solutions set forth in this
study in relation to doctors/dentists/pharmacists (who, like teaching and research
staff in higher education, retire at the age of 65, regardless of sex) is legally
obviously excluded.
On the other hand, the three purports of Law no. 95/2006, hereby reviewed,
failing to establish the non-implementation of the legal regime of overlapping
salary with pension in case of doctors etc., as well, [as set forth under Article 289
par. (5) of Law no. 1/2011 in relation to higher education teaching staff] it is
beyond any doubt that the doctors/dentists and pharmacists can not legally benefit
from such an advantage [derogatory regime from relevant common law (Articles
17-19 of Law no. 329/2009)], although such exclusion from the said benefit
appears to be, on our part, signally unnatural and, above all, unfair.
Obviously, even under the terms of this Order, „activity carried further” by those who fall
under provisions of Article 289 par. (3) of the Law is poss ible only if the „financial standing” of
the higher education institution allows it, whereas the terms specified under Article 289 par. (3)
are cumulative (Senate approval, fulfilment of performance criteria and fin ancial standing).
Or, the transient removal of the exigency for the university Senate’s approval does not entail
failure to comply with the other two conditions (performance criteria and financial standing).
