Remedies and enforcement

• Author: Romanita Iordache
• Pages: 67-76

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6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In Romania, the following procedures exist for enforcing the principle of equal treatment

under th e Anti- discrimination Law: jud icial before civil courts; administrative before the

national equality body (NCCD); and alternative dispute resolution, such as mediation,

before both the courts and the NCCD. In specific fields, such as employment or education,

the relevant authorities might receive and investigate complaints of discrimination,

although the NCCD reports that in practice these entities usually redirect complainants to

the equality body.

The Romanian anti-discrimination system provides for a mixed system of for ums:

contraventional (ad ministrative), civil an d criminal . In cases of an alleged act of

discrimination, the victim of discrimination or any interested person can choose between

filing a complaint with th e NCCD, and/or filing a civil complaint for civil damages with the

courts of law, unless the act is criminal, and the Criminal Code provisions apply. Both

before the NCCD and the courts, the parties can reach a friendly agreement at any tim e.

In a November 2009 decision, the Constitutional Court concluded that the NCCD is not an

extraordinary court and confirmed the constitutionality of the mandate of the national

equality body as an ad ministrative-jurisdictional entity. The Cou rt noted that the NCCD is

not a mandatory forum and that victims may choose betw een the two forums (courts and

NCCD) to enforce their rights.184 The possibility of dual, even simultaneous venues as an

exception to the principle that once a venue is chosen there is no recourse to another, was

confirmed by the High Court of Justice and Cassation, which emphasi sed that using one

forum, the NCCD (in the case c oncerned, an administrative complaint before t he N CCD

under Article 20 was fol lowed by an administrative appeal challenging its decision), does

not have any impact on the admissibility of a petition filed before the civil court under

Article 27.185

The fact that the two f orums (NCCD and civil court) are not mutually exclusive and the

complainant can choose to use only one or to use both simultaneously creates problems in

practice for the parties, the NCCD and the judiciary. In addition, the action before the

NCCD does not have a suspensive effect in regard to the prescription of the administrative

or civil action. The complaint with the NCCD might result in an administrative sanction

(administrative warning or fine), while the civil case, judged under general torts provisions,

results in civil damages payable to the victim of discrimination, re -establishing the status

quo ante, the situation as it was before the act of discrimination occurred, or nullifying the

situation established as a result of the discrimination, in accordance with civil law provisions

on torts. Following the 2013 amendments to t he Anti-discrimination Law, both the NCCD

and the courts can oblige the perpetrator to publish a brief summary of the decision in the

media.

In a series of decisions issued in 2008, the Romanian Constitutional Court (Curtea

Constituional) limited the mandates of both the NCCD 186 and the civil courts in relation

to discrimination generated by legislative norms.187 Subsequently, protection against

184 Romanian Constitutional Court, Decision 1470, 10 November 2009.

185 High Court of Justice and Cassation, Decision 5211, 7 December 2012, available in Romanian at:

http://www.scj.ro/.

186 Romanian Constitutional Court, Decision 997, 7 October 2008, finding that Article 20 (3) of the Anti-

discrimination Law (GO 137/2000), defining the mandate of the NCCD in relation to discrimination triggered

by legislative provisions, is unconstitutional.

187 Romanian Constitutional Court, Decisions 818, 819, 820, 3 July 2008. The Constitutional Court concluded

that the dispositions of Article 1(2)e and of Article 27 of the Anti-discrimination Law are unconstitutional, to