2 THE DEFINITION OF DISCRIMINATION
2.1 Grounds of unlawful discrimination explicitly covered
The following grounds of discrimination are explicitly prohibited in th e main legislation
transposing the two EU anti-discrimination directives in Article 2(1): ‘race, nationality,
ethnic origin, language, religion, social status, beliefs, sex, sexual orientation, age,
handicap, non-contagious chronic disease, HIV-positive status, belonging to a
disadvantaged group or any other criterion.’50 The Romanian Anti-discrimination Law
includes all grounds listed by the directives and goes further than the directives because it
also mentions other grou nds such as ‘social status,’ ‘belonging to a di sadvantaged group’
or ‘any other criterion’. The catch-all phrase ‘any other criterion’, which turns the anti-
discrimination principle into a broad equality principle, has proved to be the m ost
challenging in cases where discrimination was not based on any of the criteria specified in
the law. In practice, most petitions are filed on ‘other grounds’ such as socio-professional
category or other ad hoc categories.
2.1.1 Definition of the grounds of unlawful discrimination within the directives
The Romanian Anti-discrimination Law does not define the content of the protected
grounds. The legislation does not include any d efinition of ethnicity or race, religion, age,
sexual orientation and disability and there have been no attempts to define these concepts
through judicial interpretation.
e Anti-discrimination Law defines ‘disadvantaged group’ as ‘the category of
persons that is either placed in a position of inequality as opposed to the majority of citizens
due to personal (identity) differen ces or is faced with rejection and marginalisation’. Prior
to the 2006 amendment, the text included as exemplification ‘non -contagious chronic
disease, HIV infection or the status of refugee o r asylum-seeker’ but this exemplifying list
was deleted by the Parliament in 2006, thus leaving interpretation of the meaning of the
concept of ‘disadvantaged group’ to the national equality body (NCCD) or to the courts.
Migrants are not explicitly mentioned, but could be defined as disadvantaged group,
although no such cases have been reported. Currently, ‘disadvantaged group’ is used to
cover all these categories, also covering social status, property or education status, which
might in themselves be defined as protected grounds given that the Romanian list of
grounds is open. The case law of the NCCD suggests that the nat ional equality bod y is
prone to use belonging to a disadvantaged group as an isolated ground, rather than using
it together with other grounds.
a) Racial or ethnic origin
A definition of national minority as an ‘ethnicity which is represented in the Council of
National Minorities’ is included, without further details, in the electoral legislation. 51 When
ratifying the European Charter for Regional or Minority Languages, the Parliament chos e
not to define minority languages but to list them.52 The manual for those carrying out the
50 Government Ordinance 137/2000 regarding the prevention and the punishment of all forms of
discrimination, 30 August 2000, Art. 2(1).
51 Law 35/2008 on the election of the Chamber of Deputies and of the Senate and for the amendment of Law
67/2004 on the election of local public administration authorities, of Law 215/2001 on local public
administration and of Law 393/2004 on the Statute of officials elected in local elections (Lege pentru
alegerea Camerei Deputailor şi a Senatului şi pentru modificarea şi completarea Legii nr. 67/2004 pentru
alegerea autoritilor administraiei publice locale, a Legii administraiei publice locale nr. 215/2001 şi a
Legii nr. 393/2004 privind Statutul aleşilor locali), 13 March 2008, Art. 2 (29). The legislation lists the 19
organisations deemed to be representative of the 19 national minorities in Romania.
52 Law 282/2007 for the ratification of the European Charter of Regional and Minority Languages (Lege
282/2007 pentu ratificarea Cartei europene a limbilor regionale sau minoritare), 6 November 2007. Article 2
of the law lists the following minority languages: Albanian, Armenian, Bulgarian, Czech, Croatian, German,
Greek, Italian, Hebrew, Hungarian, Macedonian, Polish, Romani, Russian, Ruthenian, Serbian, Slovak, Tatar,
Turkish and Ukrainian.