Considerații privind sfera de aplicare a prevederilor art. IV din O.U.G. nr. 9/2025
Considerations regarding the scope of application of the provisions of Article IV of Government Emergency Ordinance No. 9/2025

Summary/Abstract: This paper provides an analysis regarding the interpretation and application of the provisions of Article 38, paragraph 10 of Law no. 153/2017, as introduced by Article IV of Government Emergency Ordinance (GEO) no. 9/6.03.2025, a provision which is currently postponed until the end of 2025 by GEO no. 12/13.03.2025. By examining the provisions of Article 38, paragraph 10 of the Framework Law no. 153/2017, as introduced through Article IV of GEO no. 9/6.03.2025, we find that the legislation exclusively addresses the automatic termination by law of an ongoing employment contract for contract-based personnel paid from public funds, in the event that such personnel meet the standard retirement age of 65 and a pension decision has been issued. The provision does not apply to professional occupational families for which special laws allow for early retirement, i.e., before reaching the age of 65 (such as magistrates, police officers, penitentiary system officers, military personnel etc.), who may combine their service pension with income obtained from other activities, as a result of entering into a new employment relationship after the pension decision has been issued and until the age of 65 is reached. Any contrary interpretation would be unconstitutional, violating Article 41 (1) of the Romanian Constitution concerning the unrestricted right to work, Article 16 (1) regarding equality of citizens before the law, and Article 1 on the rule of law. Moreover, a correct interpretation of the aforementioned legal provisions must necessarily take into account the considerations of Civil Decision no. 91/25.11.2024 of the High Court of Cassation and Justice (HCCJ), which is general and binding, issued in response to a request for a preliminary ruling. This decision clarified the legal question regarding the possibility of maintaining an ongoing employment relationship that has been extended upon request, under Article 517 (2) of GEO no. 57/2019, in the context of initiating the retirement procedure and obtaining a pension decision. It was stated that this employment relationship is terminated, with the issuance of the pension decision representing a choice to access the pension right, to the detriment of maintaining the public function. The „extended” employment relationship is affected by the issuance of the pension decision, and no reference is made whatsoever to a new employment relationship governed by the Labour Code after retirement. Since this decision led to the legislative amendment at the core of this paper, it is considered that Article IV of GEO no. 9/2025 cannot be interpreted in any other way.

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