Positive action (article 5 Directive 2000/43, article 7 Directive 2000/78)

AuthorRomanita Iordache
5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)
a) Scope for positive action measures
In Romania, positive action is permitted in national law in respect of racial or ethnic origin,
religion or belief, disability, age or sexual orientation as well as all other protected grounds.
Article 2(9) of the Anti-discrimination Law defines positive action as an exemption from
the prohibition against discrimination, stated as:
‘Measures taken by public authorities or by l egal entities under private law in favour
of a person, a group of persons or a community, aiming to ensure their natural
development and the effective achievement of t heir right to equal opportunities as
opposed to oth er persons, groups of persons or communities, as well as positive
measures aiming to protect disadvantaged groups, shall not be regarded as
discrimination under the ordinance herein.’
Since 2007, positive action measures came under attack from extreme-right groups, such
as Noua Dreapt (New Right),179 which filed petitions with the NCCD, all of which we re
rejected. In a particular case of the NCCD, Decision 433 of 5 November 2007, file number
448/2007, C.E v. C., where the denial of access to special measures in relation to a Roma
student had been que stioned, the NCCD cited the jurisprudence of the Court of Justice of
the European Union on th e principle of equality, which prohibits different treatment for
comparable situations, with the exception of cases where such treatment has an objective
justification.180 The NCCD stated that:
The measures adopted by the Romanian authorities, in particular the Ministry of
Education, in relation to Roma pupils had the purpose of ensuring equality of
opportunities, resulting in the implementation of affirmative measures. Such
affirmative measures, by their own nature, had as their purpose progressive
equalisation of th e situation of Roma children from the perspectiv e of opportunities
in education, in order to bring them into a position similar or analogous with the
situation of other pupils. The Ministry of Education prepared specific procedures in
order to implement such measures.’181
In its assessment of an alleged case of positive action, the NCCD stated :
Employment of persons belonging to minority communities implies an affirmative
measure in relation to that particular community. Such a measure can be maintained
only un til the objectives are reached and not afterwards. When the percentage of
employees from a community in a pa rticular institution corresponds with the
percentage of the respective community in the area of its location, affirmative
179 Noua Dreapt (New Right) is a non-governmental organisation registered in Romania. It acknowledges its
descent from the interwar Romanian fascist movement called Legionari, whose head, Corneliu Zelea
Codreanu was executed by the Romanian authorities in 1938. See more information on the organisation’s
website https://nouadreapta.org/.
180 NCCD decision 433 from 5 November 2007 cites the following CJEU jurisprudence: judgment of 13
December 1984, Sermide SpA v. Cassa Conguaglio Zucchero and others, C-106/83, EU:C:1984:394, para
28; judgment of 15 September 1994, Koinopraxia Enoseon Georgikon Synetairismon Diacheir iseos
Enchorion Proionton Syn PE (KYDEP) v. Council of the European Union and Commission of the European
Communities, C-146/91, EU:C:1994:329; judgment of 12 July 2001, Jippes and others, C-189/01,
EU:C:2001:420, para 129; judgment of 23 November 1999, Portugal v. Council, C-149/96, EU:C:1999:574,
181 National Council for Combating Discrimination, Decision no. 433, file number 448/2007, C.E v. C, 5
November 2007. The complainant complained that her son was not accepted for a special place for Roma
students in the institution of his choice, as the application filed for her son under a particular procedure was
set aside by his teachers and replaced with a fake application on his behalf. The NCCD found that the
complainant did not observe the special requirements in filing the application to qualify for special places for
Roma students and decided that discrimination took place as alleged by the complainant.

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