CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 juillet 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 29 July 2024   FOURTH SECTION Application no. 13816/22 Grigore-Gabriel FLORIAN against Romania lodged on 23 February 2022 communicated on 9 July 2024 SUBJECT MATTER OF THE CASE The application concerns the applicant’s (a prison guard) complaints under Article 1 of Protocol No. 1 to the Convention concerning the dismissal of his claim for salary increments related to his assignment to managerial posts in prison G. (“the prison”). The prison Director assigned the applicant, initially as Head of the Intervention Unit (between 8 May and 31 October 2017) and subsequently, as Head of the Security Office (between 31 April 2018 and 7   September 2020). The assignment was made by means of so-called “daily decisions” by the Director (“ decizie zilnicǎ pe unitate ”). After Cluj County Court had granted the applicant’s claim, with a judgment of 27 September 2021 Cluj Court of Appeal allowed appeals by the prison and the National Prison Administration (“the NPA”) and dismissed the applicant’s claim finding that the assignment orders had not complied with section 55 of Law no. 293/2004 and that the applicant was not therefore entitled to receive the increments claimed. The court relied on an earlier judgment of the High Court of Cassation and Justice (“the HCCJ”) dated 12   April 2021 given in an appeal in the interests of law concerning the correct and uniform application of section 55 of Law no. 293/2004. That court found that the said provision made a distinction between delegation of duties (“ împuternicire ”) and daily decisions delegating tasks in an unit (“ decizii zilnice pe unitate ”). While the former were in the exclusive competence of the General Director of the NPA, the entity entitled to assign people to certain managerial posts that conferred specific salary rights on the incumbents, the latter were within the province of prison directors, they concerned short transfers and did not confer any financial entitlements. According to the court, while the delegation was intuitu personae , daily decisions were taken irrespective of the incumbent person and aimed to ensure smooth functioning of the unit for a certain period when such functioning was impeded by objective factors (holidays, for instance). The HCCJ also found that those assigned on the basis of daily decisions were entitled to receive 50% increase of their salary, but only for exceptional tasks or special missions, if so found by the prison Director. This judgment followed after various courts in the country gave divergent interpretations of the said provision, some considering that the daily decisions delegating tasks in the unit had to be interpreted as “de facto” delegations if prolonged for a significant period of time, while others considering that no analogy between the two types of delegations could be allowed, the appointment on a managerial function being lawful only if done according to the law. The High Court of Cassation and Justice (the HCCJ) embraced the second approach. It held that in the field of public functions, all salary rights had to be awarded based on the law (principle of legality). Such principle excluded the possibility of applying analogy to potentially similar situations. The applicant complained under Article 1 of Protocol No. 1 to the Convention that the HCCJ’s judgment should not have been applied to him retrospectively and that he should not suffer due to the fault of his employer which had failed to comply with law when assigning him to managerial posts. QUESTIONS TO THE PARTIES Did the applicant have a legitimate expectation to obtain salary increments for working approximately three years on the basis of the daily decisions (see, mutatis mutandis , Béláné Nagy v. Hungary [GC], no. 53080/13, §§ 74-79, 13   December 2016)? In the affirmative, has there been an interference with the applicant’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 on account of the Cluj Court of Appeal’s decision based on the HCCJ’s judgment of 12 April 2021? If so, was that interference proportionate? In particular, did it impose an excessive individual burden on the applicant (see Moskal v. Poland , no. 10373/05, §§ 51 and 72, 15   September 2009; Lelas v. Croatia , no. 55555/08, § 74, 20 May 2010)?