Considerations Regarding the Conditions for Retaining Tenure for Teachers Who Must Retire and for Reinstatement or Continuation of Employment for Those Retired

Considerations Regarding the Conditions for Retaining Tenure for Teachers Who Must Retire and for Reinstatement or Continuation of Employment for Those Retired Associate professor Ana ȘTEFĂNESCU1 Abstract This study presents the conditions for maintaining the tenure of teachers who have to retire and for the reinstatement or continuation of employment of retired teachers, as they emerge from the analysis, not simple and necessarily in its entirety, of the provisions of S. 289 of Law no. 1/2011 on national education, of which only those of paragraphs (1), (3), (6) and (7) are still applicable. Especially in the light of the new form of paragraph (7) introduced by item 37 of Article I of Government Emergency Ordinance no. 117/2013 due to the fact that, as noted in its explanatory memorandum, by Constitutional Court Decision no. 397/2013, the previous form of this paragraph was declared unconstitutional. The analysis of this decision is conclusive from the perspective of the teleological method of interpretation, which together with the logical, historical, systematic and grammatical method helps us in our legal research to provide solutions; each university had/has to transpose the provisions which are difficult to interpret into a methodology approved by the university senate, providing for the other legal and procedural conditions. The study is also important from the perspective of the new draft of the higher education law which seems to omit the criticisms and conclusions of the Constitutional Court referred to above. Keywords: education law, draft law on higher education, age 65, retirement, continuing to work as a tenure teacher, continuing to work and reinstatement of those who have retired. JEL Classification: K31 1. Recitals Since the old Status of the teaching staff 2, the Romanian legislator has been constantly concerned with keeping teachers in the system in various forms - by categories of university qualifications and on conditions based on competence or special academic recognition - either until the age of 65, or until the age of 70, or even beyond this age without a limit. However, the approach has been successively subjected to "censorship" by the Constitutional Court, with less than desirable effects, and always these aspects have been socially controversial and from the perspective of the sensitivity of accountability for those who are part of decision-making structures or occupy decision-making positions in the broad sense. We have already suggested that in various nuances the problems are maintained by the rules in force and the solutions are not exactly simple from the perspective of the transposition of the relevant legislation in the matter by the universities through legal instruments. This is because this process requires, in application, the interpretation of special labour legislation in relation to the rules of common law in this area and in accordance with the provisions of social security law concerning retirement conditions - in general and by professional category, i.e. by pension category. Moreover, the legal aspects raise the issue of the accumulation of the capacity of teacher and pensioner versus the prohibition of such accumulation in different hypotheses and conditions, as well as the limitation of working capacity by postponing retirement for age limit as a personal option with the benefit of the status of tenure; in other words, we enter into the contentious issue of incompatibilities. And to clarify the problem, it would be useful to have a ministerial order that would (also) be based on the findings of the present research and that would help universities to develop methodologies more easily because, as it is well known, the legal literature is not helpful in this respect. On the other hand, as the history of the tradition of censorship by the Constitutional Court is somewhat more difficult to remember, the new draft of the law on higher education seems to partially Ana Ștefănescu - "Dunărea de Jos" University of Galați, Romania, . Law no. 128/1997 on the Status of Teachers published in the Official Gazette of Romania, Part I, No. 158 of July,1997, subsequently amended, currently repealed by the new national education law. 1 2 Perspectives of Law and Public Administration Volume 11, Issue 4, December 2022 622 omit the criticisms and conclusions of the Constitutional Court, as we will show in the conclusions section, thus completing the chronology of the research. The topic has been dealt with in the legal literature as we will show in order to make the most of the conclusions, but I propose a different analysis in a more "technical" and applied manner, demonstrative-didactic even for a common level of knowledge and understanding, with the help of the known methods of interpretation - systematic, teleological, historical, logical, grammatical. Thus, the structure of the work will allow the distinction between the conditions for maintaining the status of tenure for retired teachers, respectively for the reinstatement or continuation of activity of retired teachers. We must begin by stating that according to Section 48 of Law no. 263/2010 on the Unified Public Pension System3, the standard retirement age is 65 for men and 63 for women, the latter, according to Annex 5 of the law in force, to be reached in January 2030; until then, their standard retirement age is lower 4, with a staggered increase (for example, for November 2022 it is 61 years and 11 months). In general, in European countries, the retirement age is around 65, but an employee in Sweden, for example, can retire from age 61 at the earliest, as there is no upper age limit. Most European countries have a special regime for the retirement of university teachers. As a rule, university teachers retire at the age of 65, but in Germany, for example, university teachers retire at the age of 68, and in Spain and Norway at 70. In other European countries the retirement age for teachers is also higher than 65 (Denmark, Greece, Finland, Sweden, Estonia, Luxembourg, the Netherlands, Slovakia, etc.). In the USA and England, university teachers can remain in their offices after the standard retirement age. 5 According to Section 289 (1) of the National Education Law 1/2011 6, "teaching and research staff shall retire on reaching the age of 65". Because no distinction is made between genders, the rule applies equally to men and women, unlike the common law rules on the subject. What is the consequence of retirement? This is regulated in the Labour Code 7. With regard to university-specific legislation, we note that there is no indication of the consequence of retirement "on reaching the age of 65". We therefore identify it in the relevant provisions of common law Section 56 (1) (c) sentence 1 of the Labour Code 8 - which, naturally, are therefore applicable to all employees, including academics: their individual employment contracts automatically terminate on the date on whic (...truncated)