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

• Author: Romanita Iordache
• Pages: 65-66

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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,

para.91.

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.