Personal and material scope

AuthorRomanita Iordache
Pages36-53
36
3 PERSONAL AND MATERIAL SCOPE
3.1 Personal scope
3.1.1 EU and non-EU natio nals (Rec ital 13 and Article 3( 2), Direct ive 20 00/43
and Recital 12 and Article 3(2), Directive 2000/78)
In Romania, there are no residence, citizenship, or nationality requirements for protection
under the relevant national laws transposing the directives. Article 1(2) of the Anti-
discrimination Law guarantees the principle of equality among citizens and provides for the
prohibition of discrimination in the same context. A limitation is triggered by the constraints
of Article 1(3) of th e Romanian Constitution, which guarantees fundamental rights in
relation to citizens only. However, the comprehensive definition of discrimination provided
in Article 2(1) of the Anti-discrimination Law does not include any residence, citizenship or
nationality requirements to qualify for protection, as confirmed by the case law of the
NCCD.106 Persons with irregular status would benefit from the protection of the legal
provisions.
3.1.2 Natural and legal persons (Recital 16, Directive 2000/43)
a) Protection against discrimination
In R omania, the personal scope of the Anti-discrimination Law covers natural and legal
persons for the purpose of protection against di scrimination. Article 3 of the Anti-
discrimination Law sp ecifies th at all public and private n atural or lega l persons have an
obligation to observe the principles of Article 1(2). Articl e 26(2) provides that sanctions
can also be enforced against legal persons. Article 26 provides for higher fines for
discrimination perpetrated against groups or communities: the amount of the fine is within
the range of approximately EUR 250-7 500 (RON 1 000-30 000) if the victim is an
individual, an d within the range of EUR 500-25 000 (RON 2 000-100 000) if the victims
are a group or a commun ity.107 Furthermore, Arti cle 26(3) of the Anti-discrimination Law
establishes an obligation for
‘legal representatives of authorities and public institutions and of the economic
agents under investigation, as well as natural persons to:
a) provide any document that might help in clarifying the objectives of the
investigation;
b) provide information and explanations verbally or in writing, in relation to th e
issue under investigation;
c) provide copies of the documents requested;
d) provide support and ensure adequate conditions for carrying out the control
and help out in view of clarifications.’
The failure to observe these requirements is sanctioned with a fine of RON 200 to
RON 1 000 (approximately EUR 50 to EUR 250).
b) Liability for discrimination
In R omania, the personal scope of the Anti-discrimination Law covers natural and legal
persons for the purpose of liability for discrimination. Article 3 of the law specifies that it
applies to all public and private natural or legal persons with man dates regarding:
106 National Council for Combating Discrimination, Case no. 221, D. v. N. and Şofronea swimming pool, 21
September 2005, in which the victim of discrimination was an Egyptian national.
107 Law 189/2013 for the ratification of Emergency Ordinance 19/2013 for the amendment of the Government
Ordinance 137/2000 regarding the prevention and the punishment of all forms of discrimination, 25 June
2013, Art. 26.
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(a) conditions of hiring, criteria and conditions for recruitment, selection and promotion,
access to all forms and levels of orientation, training and professio nal development;
(b) social protection and security;
(c) public services and other services, access to goods and facilities;
(d) education system;
(e) ensuring freedom of movement;
(f) ensuring public order;
(g) other fields of social life.
3.1.3 Private and public sector including public bodies ( Article 3(1))
a) Protection against discrimination
In Romania, the person al scope of national law c overs the private and public sect ors,
including public bodies, for the purpose of protection against discrimination according to
Article 3 of the Anti-discrimination Law. Article 26 of the law provides for differentiated
sanctions depending on whether the victim is a group or an individual. 108
b) Liability for discrimination
In Romania, the personal scope of the Anti-discrimination Law covers private and public
sectors, including public bodies, for the purpose of liability for discrimination (under Article
3).
3.2 Material scope
3.2.1 Employment, self-employment and occupation
In Romania, national legislation applies to all sectors of private and public employment,
self-employment and occupation, including contra ct work, self -employment, military
service, and holding statutory office, for all the protected g rounds. A rticles 5 to 8 of th e
Anti-discrimination Law, which prohibit the various aspects of discrimination in
employment relations, do not d istinguish between th e different t ypes of actors (public or
private, civilian or military, secular or religious):
Article 5 According to the ordinance herein, conditioning the participation of a person in
an economic activity or the freely chosen exercise of a profession on grounds of belonging
to a race, n ationality, ethnic group, religion, social category, on beliefs, gender or sexual
orientation, age or on belonging to a disadvantaged group shall constitute a
contravention.109
Article 6 According to the ordinance herein, the follo wing constitute contraventions:
discrimination in relation to employment an d social protection on groun ds of race,
nationality, ethnic group, religion, social status or belonging to a disadvantaged group,
beliefs, ag e, gender or sexual orientation, excepting the cases provided for by the law,
with respect to:
a) initiation, suspension, modification or termination of the employment r elationship;
b) establishing and modifying job-related duties, the place of work or wag es;
c) granting of social rights other than wages;
d) professional training, refresher training, conversion training or promotion;
e) enforcement of disciplinary measures;
f) right to join a trade union and to access to the facilities it ensures;
108 According to Article 26 of the Anti-Discrimination Law, the amount of the fine as modified in 2013 is within
the range of approximately EUR 250-7 500 (RON 1 000-30 000) if the victim is an individual, and within the
range of EUR 500-25 000 (RON 2 000-100 000) if the victims are a group or a community.
109 Unofficial translation.

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