Judgment;Summary — ECLI:EU:C:2020:810
Date: 2020-10-08
Language of the case: Romanian
Court formation: Eighth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Social Policy
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-644/19 — 1 
Case C-644/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
28 August 2019 
Referring court: 
Curtea de Apel Alba Iulia (Romania) 
Date of the decision to refer: 
27 May 2019 
Appellant: 
FT 
Respondents: 
Universitatea ‘Lucian Blaga’ Sibiu 
GS and Others 
HS 
Ministerul Educației Naționale 
  
Subject matter of the main proceedings 
Appeal brought by FT against the respondents Universitatea ‘Lucian Blaga’ Sibiu 
(Lucian Blaga University, Sibiu, Romania) (‘ULBS’), GS and Others, HS, and the 
Ministerul Educației Naționale (Ministry of National Education), challenging the 
judgment dismissing the application for, first, the partial annulment of certain 
provisions of the methodology used by ULBS for approving the retention of 
tenured teaching staff status after the age of 65, secondly, a declaration that (i) FT 
meets the legal requirements for retaining his status as a tenured member of 
ULBS’s teaching staff and (ii) there are a number of vacant positions available 
within ULBS and, thirdly, a finding that FT has the right to continue working 
under an employment contract of indefinite duration 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-644/19 
 
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Subject matter and legal basis of the request for a preliminary ruling 
Pursuant to Article 267 TFEU, the referring court seeks interpretation of Article 1, 
Article 2(2)(b) and Article 3 of Directive 2000/78/EC establishing a general 
framework for equal treatment in employment and occupation and of Clause 4 (on 
the principle of non-discrimination) of the framework agreement on fixed-term 
work concluded by ETUC, UNICE and CEEP, implemented by Directive 
1999/70/EC 
Questions referred 
1. Are Article 1, Article 2(2)(b) and Article 3 of Directive 2000/78/EC and 
Clause 4 of the framework agreement on fixed-term work concluded by ETUC, 
UNICE and CEEP, implemented by Council Directive 1999/70/EC of 28 June 
1999, to be interpreted as meaning that a measure, such as that at issue in the main 
proceedings, is discriminatory, within the meaning of those provisions, where it 
enables an employer to decide that individuals who have reached the age of 65 
may continue to perform their duties as tenured members of staff and retain the 
rights which they enjoyed prior to retirement only if they have doctoral supervisor 
status, thereby placing at a disadvantage other individuals in a similar situation 
who may do the same only if there are vacant posts and they meet certain 
requirements relating to professional performance, and to require individuals who 
do not have doctoral supervisor status to perform similar academic duties under 
successive fixed-term employment contracts under which they receive 
remuneration on an ‘hourly basis’ at a level below that paid to tenured members 
of a university’s staff? 
2. Can the precedence in the application of EU law (the principle of the 
primacy of EU law) be interpreted as permitting a national court to disapply a 
final ruling of another national court in which it has been held that, in the factual 
situation described, Directive 2000/78/EC has been complied with and there has 
been no discrimination? 
Provisions of EU law relied on 
Articles 1 to 4 and 6 of Council Directive 2000/78/EC establishing a general 
framework for equal treatment in employment and occupation 
Clause 4 (on the principle of non-discrimination) of the framework agreement on 
fixed-term work concluded by ETUC, UNICE and CEEP, implemented by 
Council Directive 1999/70/EC  
The case-law of the Court of Justice of the European Union on the recognition of 
the principle of the primacy of EU law over national law, in its entirety, and in 
particular the judgments of 15 July 1964 (Costa v E.N.E.L., 6/64, EU:C:1964:66), 
of 16 January 1974 (Rheinmühlen Düsseldorf v Einfuhr- und Vorratsstelle für 
UNIVERSITATEA LUCIAN BLAGA SIBIU AND MINISTERUL EDUCAȚIEI NAȚIONALE 
 
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Getreide und Futtermittel, 166/73, EU:C:1974:3), and of 9 March 1978 
(Amministrazione delle Finanze dello Stato v Simmenthal, 106/77, EU:C:1978:49) 
Provisions of national law relied on 
Legea nr. 1/2011 a educației naționale (Law No 1/2011 on national education), 
published in the Monitorul Oficial al României, Partea I, nr. 18 (Official Journal 
of Romania, Part I, No 18) of 10 January 2011, as subsequently amended (‘the 
Law on national education’): 
– Article 118, which provides that higher education is based on, inter alia, the 
principles of the autonomy of universities, of academic freedom and of 
observance of the rights of teaching and research staff, and which prohibits 
discrimination, inter alia, on grounds of age; 
– Article 123, in accordance with which the autonomy of universities, guaranteed 
by the Constitution, confers on members of the university community the right 
to determine their own objectives, institutional strategies, structures, activities, 
organisation and operating methods, and management of physical and human 
resources, in strict compliance with prevailing legislation. In accordance with 
Article 123, the fundamental aspects of the autonomy of universities are to be 
set out in the university’s statutes and regulations, which must be approved by 
the senate of the university; 
– Article 289(1), which provides that teaching and research staff are to retire on 
reaching the age of 65; Article 289(3), which provides that the senate of the 
university may decide that a member of the teaching or research staff may 
continue working after retirement under a fixed-term contract of 1 year’s 
duration, which may be extended annually in accordance with the university’s 
statutes and regulations, without any restrictions relating to age, and which 
further provides that retired teaching staff may be remunerated on an hourly 
basis. Article 289(6) provides that, by way of derogation from Article 289(1), 
in the event that higher-education establishments are unable to fill posts with 
tenured members of staff, they may decide that a tenured member of the 
teaching and/or research staff should retain his status, along with all the 
attendant rights and obligations, on the basis of an annual evaluation of 
academic performance, following a methodology established by the senate of 
the university; Article 289(7) provides that the reinstatement of retired 
members of the teaching staff is to be carried out annually and that the rights 
and obligations attaching to the teaching activity carried on prior to retirement 
are to be maintained, subject to the approval of the senate of the university, in 
accordance with the methodology referred to in Article 289(6), provided that 
the staff member’s pension is suspended throughout the period of 
reinstatement; 
– Article 296, in accordance with which reserved teaching posts, vacant teaching 
posts and temporarily vacant teaching posts must be filled where possible by 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-644/19 
 
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tenured members of the institution’s teaching staff or associate teaching staff, 
who are to be remunerated on an hourly basis. 
Succinct presentation of the facts and the main proceedings 
1 Between 1994 and 2015, FT performed the teaching duties of a ‘conferenţiar 
universitar’ (university lecturer), with tenure in the Law Faculty of ULBS, under 
an individual employment contract of indefinite duration. On 11 June 2015 FT 
reached the age of 65, the legal retirement age. However, his employment contract 
did not come to an end on that date, since, by decision of ULBS of 19 June 2015, 
his status as a tenured member of staff working as a ‘conferenţiar universitar’ was 
maintained for the period from 11 June 2015 to 30 September 2015, for the 2014-
2015 academic year. 
2 By decision of 29 May 2015, ULBS had taken note of the fact that, as he had 
reached the retirement age of 65, FT’s tenured teaching staff status would come to 
an end on 1 October 2015. 
3 By decision of 28 September 2015, the senate of ULBS approved a ‘Metodologia 
privind aprobarea menținerii calității de titular a cadrelor didactice după 
împlinirea vârstei de 65 de ani’ (methodology for approving the retention of 
tenured teaching staff status after the age of 65) (‘the methodology’). According 
to that methodology, tenured members of the teaching staff who did not have 
doctoral supervisor status and who had reached the age of 65 in the course of the 
2014-2015 academic year were to retain their tenured staff status until 
30 September 2015 inclusive, following the grant of approval to that effect. The 
methodology also stipulated that, for the 2015-2016 academic year, tenured 
members of the teaching staff who reached the age of 65 on or after 1 October 
2015 were to retain their tenured staff status until the end of the academic year, on 
the basis of a declaration of intent addressed to the university’s rector 30 days 
before their 65th birthday. 
4 As from 1 October 2016 ULBS ceased to apply the methodology, with the result 
that all tenured members of the teaching staff, regardless of their teaching duties, 
would (at their own request) retire either on reaching retirement age or at the end 
of the current academic year. Thus, the possibility of retaining tenured staff status 
was also removed for university professors who had doctoral supervisor status and 
had reached the age of 65. 
5 FT challenged the decision of 29 May 2015 before the Tribunalul Sibiu (Regional 
Court, Sibiu, Romania) in an action based on employment law. He alleged 
infringement of EU law and a failure to follow the case-law on discrimination of 
the Court of Justice of the European Union. The Tribunalul Sibiu dismissed his 
action as unfounded. That decision was confirmed by the Curtea de Apel Alba 
Iulia (Court of Appeal, Alba Iulia, Romania). It has thus been ruled, in a judgment 
that has become final, that there was no discrimination, since the explanatory 
memorandum to the methodology sets out the criteria for the adoption of the 
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retirement measure, which are objectively justified by a legitimate aim in the 
pursuit of which the measure was adopted. The ruling also found that Directive 
2000/78/EC had been applied correctly. 
6 By letter of 3 September 2015 FT requested the senate of ULBS to maintain his 
tenured teaching staff status also for the 2015-2016 academic year. That request 
was refused on the ground that FT did not fall within the scope of the 
methodology or within the scope of the procedure for approving the retention of 
tenured staff status after the age of 65 for university professors who are doctoral 
supervisors, since FT did not have doctoral supervisor status. 
7 Following the refusal of his request, during the period from 2016 to 2019, FT 
concluded annual contracts with ULBS under which his remuneration was fixed 
on an ‘hourly basis’ (at RON 20 per hour). The remuneration he was paid was 
therefore less than that of a tenured member of the teaching staff. 
8 FT brought an administrative action challenging the administrative measures on 
which ULBS had based its refusal to extend his employment contract and 
maintain his tenured teaching staff status. Principally, he took issue with the way 
in which the senate of ULBS had established, by means of the methodology, the 
possibility of retaining tenured teaching staff status only for university professors 
who also had doctoral supervisor status, thus excluding other members of the 
teaching staff who had reached the age of 65 but did not have doctoral supervisor 
status. The latter were merely allowed the option of concluding successive fixed-
term employment contracts to perform similar academic duties under which they 
received remuneration on an hourly basis at a level below that paid to tenured 
members of the teaching staff. 
9 The Tribunalul Alba (Regional Court, Alba, Romania) dismissed FT’s action. It 
found that the methodology is a proposal for one of the university’s medium-term 
strategies, namely maintaining tenured staff status beyond the age of 65 only for 
university professors who are doctoral supervisors and who fulfil the performance 
assessment criteria in the 3 years prior to their evaluation. That court also found 
that the Law on national education does not establish any right for tenured 
members of the teaching staff automatically to retain their status after reaching the 
retirement age of 65, but only establishes the possibility of their doing so, in the 
event of the senates of higher-education establishments deciding in their favour on 
the basis of a methodology drawn up by each individual establishment. 
Consequently, the defendant ULBS was under no obligation to maintain tenured 
members of the teaching staff who had reached the age of 65 in their posts, since 
they were not recognised as having the right to continue to work after that age, but 
merely as having the possibility to do so. 
Essential arguments of the parties to the main proceedings 
10 FT maintains that, on the basis of the professional performance criteria and the 
university’s finances, the senate of ULBS was in a position to decide that he 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-644/19 
 
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should continue teaching after retirement under a fixed-term contract of 1 year’s 
duration, amenable to renewal, without any restrictions relating to age, since it is 
sufficient that there are vacant posts that cannot be filled by tenured members of 
the teaching staff. FT asserts that, on 14 September 2015, there were 19 vacant 
teaching positions within ULBS’s Law Faculty and a further two teaching posts 
that were filled by associate teaching staff. According to FT, Article 289(6) of the 
Law on national education enabled the senate of ULBS to decide that he should 
continue teaching even after his retirement. Moreover, the professional evaluation 
would have made it possible for him to conclude annual contracts under which he 
retained his tenured teaching staff status, along with the financial entitlements 
attendant upon that status. None of these points was disputed by ULBS in the 
course of the proceedings. 
11 FT asserts that the stipulation in the methodology of the condition of being a 
doctoral supervisor in order to be eligible to benefit from the derogation laid down 
in Article 289(6) of the Law on national education, namely the retention of 
tenured teaching staff status, resulted in a situation of indirect discrimination. 
Article 289(6), however, lays down only two conditions, the first being that there 
must be vacant posts that cannot be filled by tenured members of the teaching 
staff and the second being the annual evaluation of academic performance, 
following a methodology established by the senates of higher-education 
establishments. 
12 FT submits that the requirement imposed by ULBS is abusive and results in the 
conclusion of employment contracts under which remuneration is paid on an 
hourly basis and is considerably lower than that paid to tenured members of the 
teaching staff. 
13 For its part, ULBS asserts that it adopted the methodology on the basis of the 
principle of the autonomy of universities, governed by Article 118 and 
Article 123(2) and (4) of the Law on national education, which provide for the 
possibility of maintaining tenured staff status beyond the age of 65, but no 
obligation to maintain such status, on the basis of a methodology drawn up by 
each individual higher-education establishment. 
14 Article 289(6) of the Law on national education does not establish any right for 
members of the teaching staff automatically to retain their tenured staff status after 
reaching retirement age if posts cannot be filled by tenured members of staff and 
they fulfil the assessment criteria; it merely provides for the possibility of 
maintaining such status if the senates of higher-education establishments so decide 
within their own methodology. 
15 ULBS’s decision to maintain tenured staff status beyond the age of 65 only for 
university professors who were doctoral supervisors and who fulfilled the 
academic assessment criteria in the 3 years immediately preceding their evaluation 
was based on criteria that were objectively justified by a legitimate aim. The 
alarming increase in the number of academic posts at the level of professor and 
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‘conferențiar’ by comparison with the number of academic posts at the level of 
‘lector’ (researcher) and ‘asistent’ (assistant) had made it necessary to adopt a 
policy of limiting the large number of posts for professors/ʽconferențiari’ and 
converting them into posts at the level of ‘asistent’/ʽlector’ for tenure. Similarly, 
achieving a financial equilibrium between sustainability and the university’s 
development in the short and medium term made it necessary to adopt urgent 
measures on the redistribution of the university’s costs and ensure a balance 
between staff costs and operating and development costs. 
16 ULBS also states that, as from 2016, the methodology was amended with the 
result that the possibility of retaining tenured staff status was also removed for 
university professors who had doctoral supervisor status and had reached the age 
of 65. 
17 In the appeal proceedings, FT disputed the reasoning of the court of first instance 
with regard to compliance with EU law and the absence of discrimination and 
asked the referring court to make a reference to the Court of Justice of the 
European Union for a preliminary ruling. 
Succinct presentation of the reasons for the reference 
18 The referring court, before which the appeal has been brought, considers that, in 
the present case, the conditions of admissibility laid down by Article 267 TFEU 
are satisfied. In its opinion, the dispute centres on the question of whether the 
adoption by ULBS, in the methodology, of a restrictive criterion (doctoral 
supervisor status) which limits the possibility of retaining tenured teaching staff 
status after reaching the normal retirement age creates a situation of indirect 
discrimination, having regard, inter alia, to the fact that one of the effects of 
adopting that criterion is the conclusion of successive fixed-term contracts that 
stipulate a considerably lower level of remuneration. 
19 The referring court takes the view that, if the first question is answered in the 
affirmative, it will be necessary, in order to resolve the dispute, to establish 
whether a national court may undo the effects of a final decision of another 
national court (in this case, the employment law ruling, which has become final, in 
which it was held that, in the factual situation described, the provisions of 
Directive 2000/78/EC had been complied with and there had been no 
discrimination).