Summary of Court Rulings on Recovering “Foreign-Currency Per Diem” Under G.D. 1086/2004:
The Brașov Court of Appeal ordered the General Inspectorate of the Romanian Police to pay, in favor of our clients (police officers), certain salary-type incomes called “foreign-currency per diem” established by Government Decision No. 1086/2004 for participation in missions outside Romania, and also ordered the payment of related penal legal interest, calculated from each per diem’s due date until effective payment.
In fact, our clients, officers employed at the level of IGPR, participated in missions in Mali under the UN mandate from 1 October 2014 to 18 September 2016, and in Kosovo under UN and EU mandate from 20 December 2006 to 30 November 2010.
Our team of lawyers specializing in administrative litigation and labor conflicts successfully challenged the defenses instituted by the IGPR and convinced the court to establish the following:
The 3-Year Extinctive Prescription Term Was Not Met – Rejection of the Prescription Exception Invoked by IGPR
The court definitively determined that the claims brought on behalf of our clients are not time-barred, considering that Government Decision No. 1086/2004, which established financial rights for personnel sent on missions outside Romania, was a military normative act that was never published in the Official Gazette of Romania, and our clients only became aware of its existence in 2020, when another Government Decision was published that repealed G.D. No. 1086/2004.
Thus, the court validated the argument of our lawyers specializing in public service litigation, who relied on the interpretation and application in the case of Article 2,523 of the Civil Code: “Prescription begins to run from the date when the right-holder knew, or under the circumstances should have known, of its creation.”
To clarify the correct interpretation of Article 2,523 of the Civil Code, the Brisc Legal attorneys submitted a request admitted by the governing board of the Brașov Court of Appeal, by which the High Court of Cassation and Justice was asked to rule on a legal issue that had been handled inconsistently by courts.
By Decision No. 18/2021 and later Decision No. 10/2022 issued by the High Court of Cassation and Justice (binding on courts), it was established that regarding G.D. No. 1086/2004, the principle according to which no one can invoke ignorance of the law (“nemo censetur ignorare legem”) does not apply, given that the Decision was never published in the Official Gazette.
Also, the High Court established that courts have the obligation in each individual case to verify whether personnel sent on missions outside Romania had the possibility to learn about the existence and content of G.D. No. 1086/2004.
The Brașov Court of Appeal adopted the arguments of the administrative litigation attorneys and determined that it was IGPR’s responsibility to prove that it had informed our clients of their rights under G.D. No. 1086/2004. Moreover, from documents we requested, it resulted that at the territorial units to which our clients belonged, copies of the decision were not communicated, making knowledge impossible.
Police Officers Are Entitled to the Per Diem Provided by G.D. No. 1086/2004 in Addition to the Per Diem Offered by the External Partner (UN and EU)
Through High Court Decision No. 24/2022 (binding on courts), it was determined that the purpose of the per diem provided by G.D. No. 1086/2004 is to compensate for inconveniences resulting from risks to which personnel participating in missions outside the Romanian territory are exposed in operation zones.
Thus, our salary litigation lawyers demonstrated before the Brașov Court of Appeal that the per diems received by our clients from external partners (UN and EU) had the purpose of covering daily expenses for accommodation, food, and other small expenses, without those allowances covering inconveniences arising from the risks to which mission-personnel sent outside Romania are exposed.
Consequently, the court ordered that the defendant IGPR pay the financial rights consisting of “per diem in foreign currency” under G.D. No. 1086/2004 for the periods spent in missions in Mali and in Kosovo, approximately €28,000 and €60,000 respectively, as well as penal interest (approximately half the amount of the per diems) calculated from the dates when IGPR should have paid the per diems during the missions.