By the ruling of 11 February 2025, the Suceava Court of Appeal – First Civil Division, in case file no. 3280/86/2023, referred the High Court of Cassation and Justice for a preliminary ruling regarding the interpretation of the provisions of Article 153 letter g), in relation to Article 106 paragraph (2) and Article 107 paragraph (3) of Law no. 263/2010 on the unitary public pension system, as subsequently amended and supplemented.
Through Decision no. 41/2026, the Supreme Court established that judges have the authority to fully assess the legality of a pension decision, extending the review beyond the arguments initially invoked by the state institution.
The consultation of the courts revealed two distinct jurisprudential opinions regarding this legal issue.
In a first opinion, it was held that the court’s review is strictly limited to the grounds stated in the decision issued by the county pension house regarding the recalculation request. The main argument is based on the legal nature of the decision, namely that it is a unilateral administrative act with an individual character, according to the definition in the Administrative Litigation Law no. 554/2004. The fact that the act is brought before courts specialized in social security disputes does not change its nature. Thus, the issuing institution cannot supplement its reasoning with new factual or legal grounds during the proceedings, and judicial review is limited exclusively to the elements initially set out in the decision.
The second opinion holds that the court’s review is not limited by the reasoning stated in the contested decision. In this regard, it was argued that examining the legality of the decision requires verification of all documents underlying the recalculation request, beyond the mere ground for rejection stated by the pension house. The supporting documents must meet all legal requirements for the admission of the request, and any non-compliance cannot be cured by the authority’s failure to invoke it in the decision.Furthermore, the rules governing the establishment of pension rights in the public system are rules of public order. Therefore, non-compliance with the requirements for drafting documents certifying the contribution period or income earned attracts the sanction of absolute nullity, which the court may also raise ex officio.
Through the Decision, the High Court of Cassation and Justice (ICCJ) finds the emergence of non-unitary judicial practice regarding the application of Article 153 letter g), in conjunction with Article 106 paragraph (2) and Article 107 paragraph (3) of Law no. 263/2010, the divergences concerning the limits of judicial review in the case of challenges filed against pension recalculation decisions issued by county pension houses.
According to Article 106 paragraphs (1) and (2) of the same law, the approval or rejection of pension applications is carried out through a decision issued by the territorial pension house within 45 days from registration. This decision must mandatorily include the factual and legal grounds on which the adopted solution is based.
These procedural rules also apply accordingly to pension recalculation requests based on Article 107 paragraph (3) of Law no. 263/2010. According to this provision, recalculation may be ordered by adding incomes, contribution periods, or assimilated periods provided by law, as well as by taking into account any other documents capable of modifying pension rights that were not considered when they were initially established.
Pension recalculation is carried out in the situations expressly provided by law, either ex officio or at the request of the beneficiary. When the procedure is initiated upon request, the holder of the right must submit the application to the competent pension house, complying with the legal conditions mentioned above.
Regardless of the manner in which recalculation is ordered (ex officio or upon request), pension houses shall resolve the matter in accordance with the provisions of Article 106 of Law no. 263/2010, by issuing a reasoned decision in fact and in law, within a maximum of 45 days from the date of registration.
According to the ICCJ, the legal provisions expressly establish the competence of tribunals and courts of appeal in matters of social insurance jurisdiction, a procedure appropriately supplemented by civil procedural rules. Given this competence, the court seized with reviewing the rejection decision issued by the pension house does not limit itself to a mere formal verification. If the administrative act is unlawful, the court annuls it and directly resolves the merits of the case, ruling on the existence of the subjective right invoked by examining all the defenses in the file.
Thus, the court’s role cannot be artificially limited to examining exclusively the factual and legal grounds stated in the pension house’s decision. Benefiting from full jurisdiction, the court has the right and the obligation to directly and fully verify the fulfilment of all legal conditions required for the recalculation of pension rights.
This approach is also required by the European case-law on the right to a fair trial. The European Court of Human Rights has consistently held that decisions of administrative authorities must be subject to subsequent review by a court with full jurisdiction. Since the internal procedure of pension houses does not provide the guarantees specific to a fair trial, it is mandatory that the court exercising judicial review assumes this role and ensures full jurisdiction on the merits.
Through Decision no. 41/2026, the High Court of Cassation and Justice held that courts, when exercising judicial review over pension recalculation decisions issued by county pension houses, are not limited to examining exclusively the grounds stated in the administrative act. The judge has the authority to fully assess both the legality and the merits of the decision, in relation to the entirety of the provisions of Law no. 263/2010.
In accordance with Article 521 paragraph (3) of the Code of Civil Procedure, this decision resolving a question of law is binding on all courts.