Examen selectiv din practica judiciară a Înaltei Curţi de Casaţie şi Justiţie
Selective Case Law Review of the Administrative and Fiscal Litigation Chamber of the High Court of Cassation and Justice

Summary/Abstract: Decision no. 4456/2025 of the High Court of Cassation and Justice – Administrative and Fiscal Litigation Section – concerns the legal issue of whether the failure to allocate special admission places in higher education for persons with special educational needs/disabilities constitutes an act of indirect discrimination. The dispute originated from Decision no. 561/21.07.2021 of the National Council for Combating Discrimination (CNCD), which found that the Ministry of Education had committed an act of discrimination by failing to create a mechanism for distinct admission places for this category of candidates in higher education. CNCD sanctioned the Ministry with a warning and requested that it take the necessary measures to establish such places. The Ministry of Education challenged the CNCD decision, and the Bucharest Court of Appeal upheld the action and annulled it. CNCD lodged an appeal, arguing that the court of first instance had incorrectly analyzed the case through the lens of direct discrimination, although the real issue concerned indirect discrimination—namely, the application of seemingly neutral rules to situations that are, in reality, different and require differentiated treatment to ensure genuine equality of opportunity. In the appeal, the majority held that the case did not allow the Ministry of Education’s conduct to be classified as indirect discrimination punishable as a contravention, because: at that time, the law did not expressly require distinct places for persons with disabilities in higher education; the protection of equal opportunities at university level was primarily configured through support and accommodation measures, not mandatory separate places; university autonomy granted institutions a margin of discretion in organizing such measures; and the Ministry’s contraventional liability could not be based on an insufficiently defined normative obligation. In the minority opinion, the judge considered that CNCD’s appeal should have been admitted, the Court of Appeal’s judgment quashed, and the Ministry of Education’s action dismissed as unfounded, which would have resulted in upholding the CNCD decision.

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