5.  The applicants were born in 1975 and live in Târgu-Mureş.
6.  At the time of the facts of the present case, the applicants were working as judicial officers at the Mureş County Court (hereinafter “the County Court”). They had held those positions since 29 June 2000.
7.  On 18 December 2007, relying on the provisions of the Anti-discrimination Ordinance (Government Ordinance no. 137/2000 on preventing and punishing all forms of discrimination) and of Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the applicants brought an action in the Mureş County Court seeking compensation equivalent to the “loyalty bonus” (spor de fidelitate) to which they felt they had been entitled in respect of their salary since December 2004. They complained that, although they had met the same requirements as all the other categories of judicial and non-judicial court staff (including judges and ancillary personnel) who had received the loyalty bonus in accordance with Article 4 of Ordinance no. 27/2006 as in force at that time, they had been excluded by Article 16 of the Ordinance from benefitting from that bonus. The action was brought against the applicants’ employer and against the Ministry of Justice and the Ministry of the Economy and Finance.
8.  In a judgment of 14 February 2008 the County Court allowed the claim. It found that the relevant law created a difference in treatment between the applicants and the rest of the judicial and non-judicial court staff and that there was no justification for that different treatment. The court concluded that Article 14 of the Convention and Article 1 Protocol No. 12 to the Convention were applicable and declared that the applicants had been discriminated against because they had not been awarded the loyalty bonus. The court ordered that the applicants be paid compensation for the discrimination suffered, representing 5% of their monthly salary for the period running from December 2004 until 31 March 2006 and 15% for the period running from 1 April 2006 until the day the discrimination ended. The judgment was immediately enforceable.
9.  On 16 and 25 April 2008 the Ministry of Justice and the Ministry of Finance appealed, arguing in the main that the court had overstepped the limits of its judicial authority and had acted as a “lawmaker” when it had awarded the applicants a right which had not been provided to them by law. On this point, they argued that the Anti-discrimination Ordinance did not apply to the manner in which social relations were regulated by law; it only concerned the applicability in practice of those laws.
10.  In a final decision of 30 May 2008 the Târgu Mureş Court of Appeal (hereinafter “the Court of Appeal”) dismissed the appeal as unfounded in so far as it concerned the Ministry of Justice and as out of time in so far as it concerned the Ministry of Finance. It considered firstly that the Anti‑discrimination Ordinance applied to the applicants’ situation and on this point it dismissed the defendant party’s allegations of a breach of the principles of the separation of powers by the courts. It further considered that, in the light of Article 2 of the Anti-discrimination Ordinance and of the Court’s case-law on Article 14, the applicants had proved their allegations of discrimination, particularly that they had been treated differently from individuals in similar situations, without justification. In the court’s view, the protected right at stake was the principle of equality of treatment in the system of remuneration for work. On the merits of the case, the court relied on the laws regulating “confidentiality bonus[es]” (spor de confidenţialitate), noting that the applicants had to respect the confidentiality of the information to which they had access and for this reason concluded that they should be entitled to a “confidentiality bonus”, like other members of the judiciary and ancillary staff. It therefore awarded the applicants such a “confidentiality bonus”.
11.  The use of the term “confidentiality bonus” in the court’s decision was brought to the court’s attention on 20 November 2008 by the defendants by means of an extraordinary appeal (subsection C below) and on 27 November by the applicants by means of an application for correction of material errors (subsection B below).
12.  Meanwhile, on 14 October 2008 the authorities paid each of the applicants 30% of the amount they were entitled to receive as compensation for the period from December 2004 to July 2008.
13.  On 27 November 2008 the applicants lodged an application for correction of material errors in the final decision adopted by the Court of Appeal in their case. They asked in particular that the word “confidentiality” be replaced with the word “loyalty” throughout the whole decision.
14.  In an interlocutory judgment of 4 December 2008 the same bench – sitting in camera – of the Court of Appeal allowed the application, without notifying the parties. The court considered that the use of the phrase “confidentiality bonus” stemmed from a technical error and did not affect the reasoning of the judgment.
15.  On 20 November 2008 the Ministry of Justice lodged an extraordinary appeal against the final decision of 30 May 2008, claiming that the Court of Appeal had failed to examine the grounds of appeal as stated by the defendants. It pointed out that the subject matter of the dispute was not a confidentiality bonus, as wrongly established by the court, but rather a loyalty bonus. It relied on the provisions of Article 318 § 1 of the Code of Civil Procedure (“the CCP”) (see paragraph 27 below).
16.  On 7 January 2009 the applicants, who had received a copy of the defendant party’s submissions, added their observations to the file. They argued that the defendant had failed to observe the time-limits set by law for lodging the appeal. They further argued that all the reasons for appeal had been thoroughly examined by the Court of Appeal, which had resolved the legal matter brought before it, that is to say – the right to compensation for the damage caused by discrimination. They also raised an objection of unconstitutionality of Articles 318 and 319 of the CCP, which in their view, by allowing for an open-ended possibility of lodging the extraordinary appeal, contradicted the right of access to court guaranteed by Article 21 of the Constitution and by Article 6 § 1 of the Convention, the latter having been incorporated into domestic law by Article 20 of the Constitution. Their objection was dismissed by the Constitutional Court on 12 May 2009, on the grounds that the said provisions did set the time-limits for the extraordinary appeal and that in any case, the enforcement proceedings were subject to the general statutes of limitation.
17.  The Court of Appeal sitting in a different formation held a hearing on 14 October 2009. The applicants were not present, but requested that the extraordinary appeal be decided in their absence. The Court of Appeal ruled that the subject matter of the dispute had been wrongly determined as being an entitlement to a confidentiality bonus. In its view, the matter could not be considered as a simple material error:
“It cannot be considered that this is a simple material [or] typographical error, which arose because of the striking similarity between the words ‘confidentiality’ and ‘loyalty’, as it had been adjudged in the interlocutory judgment of 4 December 2008 whereby this court ordered the correction of this material error by replacing the word ‘confidentiality’ with the word ‘loyalty’. The court of appeal referred to a completely different legal matter, which had not been brought before it by the parties, and thus dismissed as unfounded the appeal lodged by the Ministry of Justice without examining the arguments put before it by [the Ministry of Justice] by mistakenly copying the reasoning from a different decision, in which it had examined the issue of awarding a confidentiality bonus.”
18.  Consequently, in the same hearing, the Court of Appeal allowed the extraordinary appeal and quashed the final decision. It observed that on 3 July 2008 the Constitutional Court had declared the relevant provisions of the Anti-discrimination Ordinance to be unconstitutional (decisions nos. 818 and 821 of 2008; see paragraph 24 below). It concluded that there were no longer any legal grounds to support the applicants’ action. The Court of Appeal thus allowed the appeal, quashed the judgment rendered by the County Court and rejected the applicants’ initial action. It found as follows:
“In their initial action, the [applicants] argued firstly that they had been discriminated against [vis-à-vis] the remaining judicial staff, because they had been excluded from the benefit of the loyalty bonus. They relied on the provisions of Articles 1-6 and 27 § 1 of the [Anti-discrimination Ordinance] and of Articles 5 and 154 § 3 of the Labour Code.
The provisions of Articles 27 § 1 as well as those of Article 1 and 2 of the [Anti‑discrimination Ordinance] were declared unconstitutional by Decision no. 821 of 3 July 2008, as well as by Decision no. 818/2008 of the Constitutional Court. According to Article 31 of Law no. 47/1992 on the organisation and functioning of the Constitutional Court, the decisions rendered in verification of the constitutionality of a law are binding on everyone. This means that the provisions of Article 27 § 1 of the [Anti-discrimination Ordinance] can no longer be applied.
In these conditions, the first-instance [court’s] decision to allow the [applicants’] action can no longer be justified on these legal provisions which have been declared unconstitutional. Therefore, ... the decision lacks legal basis.
For this reason the court will not examine the remaining grounds of unlawfulness, will ... allow the appeal, and will ... reject the action lodged by the [applicants].”
19.  The applicants unsuccessfully lodged several extraordinary appeals against that decision, all of which were rejected by final decisions of the Court of Appeal (19 January 2010, 20 January 2010, and 4 February 2010). For instance, on 19 January 2010 the Târgu Mureş Court of Appeal rejected the applicants’ argument that the Ministry of Justice had lodged its extraordinary appeal outside the time-limit set by law.