Introduction

• Author: Romanita Iordache
• Pages: 14-16

14

INTRODUCTION

The national legal system

The Romanian Constitution provides for equality and non-discrimination in broad terms as

general principles applicable to all citizens, irrespective of ‘ race, nationality, ethnic origin,

language, religion, sex, opinion, political adherence, property or social origin’.26 These

provisions are implemented in practice by speci fic anti-discrimination legislation adopted

in Augu st 2000 through delegated legislation, Government Ordinance 137/2000 –

hereafter generally referred to as the Anti-discrimination Law.27 Government Ordinance

137/2000 was amended in 2002, 2003, 2004, 2006 an d three times in 2013. The Anti-

discrimination Law introduces a mixed system of remedies, both civil and administrative

(minor offences), which can be pursued separately or simultaneously.

The Anti-discrimination Law provides for the establishment of the National Council for

Combating Discrimination (NCCD) (Consiliul Naional pentru Combaterea Discriminrii),

which has a broad quasi-judicial and promotion al mandate.28 The Anti-discrimination Law

can be also enforced by civil courts if the complainant seeks only civil remedies under

general torts procedure s. A decision of the NCCD is not required in such cases but might

help in making a claim for damages under general torts provisions. The cou rts have an

obligation to communicate with the NCCD in discrimination cases and invite it in as an

expert. Civil complaints on the basis of the Anti-discrimination Law are exempt from court

fees, and the locus standi and burden of proof are prescribed by law .

The grounds of unlawful discrimination as well as the material scope of the protection of

the Romanian An ti-discrimination Law go beyond the requirements of the directives. The

list of protected grounds is an open list modelled after Article 14 of the ECHR. In addition,

the prohibition of discrimination on all grounds applies to employment as well as education,

access to services and goods, including health services or public services and housing. The

law includes a distinct feature, the right to dignity, which is often used as a catch -all

concept. However, the scope of application of the Anti-discrimination Law was substantially

diminished after 2008, following a series of decisions by the Romanian Constitutional Court

(RCC) (Curtea Constituional), which limited both the mandate of the NCCD,29 and of the

civil courts in relation to cases of discrimination generated by legislative provisions.30

Following these RCC decisions, the NCCD refrained from issuing d ecisions in cases of

potential de jure discrimination, invoking its lack of competence. However, the courts

started to issue decisions obligin g the NCCD to assess such cases and make a finding on

whether discrimination took place.31 This practice is not uniform so far.

26 See section 1 of this report for more detail.

27 Ordinance 137/2000 was adopted by the Government based on a constitutional procedure that allows the

Parliament to delegate limited legislative powers to the Government during the parliamentary recess in

accordance with Articles 114 and 107 (1) and (3) of the Constitution. The ordinances (statutory orders)

must be submitted to the Parliament for approval, though in the interval between their adoption by the

Government and the moment of their adoption (or rejection, or amendment) by the Parliament, they are

binding and generate legal consequences.

28 Romanian National Council for Combating Discrimination (NCCD) (Consiliul Naional pentru Combaterea

Discriminrii). The official website of the institution is available at: http://www.cncd.org.ro.

29 Romanian Constitutional Court, Decision 997 of 7 October 2008, concluding that the interpretation of Art. 20

(3) of the Anti-discrimination Law, defining the mandate of the NCCD in relation to identifying and punishing

discrimination triggered by legislative provisions, is unconstitutional.

30 Romanian Constitutional Court, Decisions 818, 819 and 820 of 3 July 2008. In these three decisions, the

Constitutional Court concluded that the dispositions of Art. 1(2) e) and of Art. 27 of the Anti-discrimination

Law are unconstitutional, to the extent that they are understood as implying that the courts of law have the

authority to nullify or to refuse the application of legal norms when considering that such norms are

discriminatory. Based on the constitutional principle of separation of powers, the Constitutional Court

emphasised the constitutionality of the Anti-discrimination Law but asserted that the enforcement of the law

by some courts is unconstitutional, due to the fact that during its application, some courts decided to quash

particular legal provisions deemed as discriminatory and replaced them with other norms, thus ‘creating

legal norms or substituting them with other norms of their choice.’

31 For example: High Court of Justice and Cassation (Inalta Curte de Casaie i Justiie) Decision 5060/2013 of

18 April 2013, available at: http://legeaz.net/spete-contencios-inalta-curte-iccj-2013/decizia-5060-2013.