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ified by a legitimate aim and the means of attaining it are appropriate and necessary. E. HARASSMENT IN THE RACIAL DIRECTIVE 14. According to art. 2 par. 3 of the racial Directive: (a) Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States. F. HARASSMENT IN NATIONAL LAW 15. The concept of harassment was explicitly established in national legislation through law no. 27 of 5 March 2004 approving G.O. no. 77/2003 amending and supplementing G.O. no. 137/2000, published in the Official Gazette no. 216 of 11 March 2004. 16. According to art. 2 par. 5 of G.O. no. 137/2000, republished: a) Any behaviour based on a criterion such as race, nationality, ethnic and social origin, language, religion, social category, beliefs, gender, sexual orientation, affiliation to a disadvantaged category, age, disability, the refugee or asylum seekers status or on any other criterion that creates an intimidating, hostile, degrading or offensive environment constitutes harassment and shall be contraventionally punished. RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 11 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” G. THE INSTRUCTION TO DISCRIMINATE IN THE RACIAL DIRECTIVE 17. According to art. 2 par. 4 of the Racial Directive: (a) An instruction to discriminate against persons on grounds of racial or ethnic origin shall be deemed to be discrimination within the meaning of paragraph 1. H. INSTRUCTION TO DISCRIMINATE IN NATIONAL LAW 18. G.O. no. 137/2000 in its initial form, published in the Official Gazette no. 431 of 2 September 2000 stipulated in art. 2 par. 3 the following: „The measures or if case the regulations of an individual or legal person that generate the effects set forth in par. (2) draw the contraventional liability of the individual or legal person, if they don't fall under the criminal law". Art. 2 par. 3 of G.O. no. 137/2000 was repealed through Law no. 48 of 16 January 2002 approving G.O. no. 137/2000 for the prevention and sanctioning of all forms of discrimination, published in the Official Gazette no. 69 of 31 January 2002. 19. The concept of instruction/measure to discriminate was established through Law no. 27 of 5 March 2004 approving G.O. no. 77/2003 amending and supplementing G.O. no. 137/2000, published in the Official Gazette no. 216 of 11 March 2004. According to art. 2 par. 2 of G.O. no. 137/2000, republished: (a) For the purpose of this ordinance, the rule to discriminate against persons based on any of the grounds stipulated in par. (1) shall be regarded as discrimination. III. The scope of the racial Directive (ARTICLE 3) and national transposition law A. THE SCOPE OF THE RACIAL DIRECTIVE 20. According to art. 3, Directive 2000/43/EC „shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: ® conditions for access to employment, to self-employment and to autonomous activities, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; ® access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; ® employment and working conditions, including dismissals and pay; ® membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations; ® social protection, including social security and healthcare; ® social advantages; ® education; ® access to and supply of goods and services which are available to the public, including housing. RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 12 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” B. THE SCOPE OF THE NATIONAL TRANSPOSITION LAW (GENERAL PART) 21. According to art. 3 of Chapter I (Principles and definitions) of G.O. no. 137/2000 republished, „The provisions of this ordinance shall be applied to all individuals or public or private legal persons, as well as to all public institutions having prerogatives regarding: ® employment conditions, criteria and conditions of recruitment, selection and promotion, access to all forms and levels of guidance, training and advanced training; ® protection and social security; ® public services or other services, access to goods and facilities; ® educational system; ® securing the freedom of movement; ® securing public order and peace; ® other fields of social life”. C. THE SCOPE OF THE NATIONAL TRANSPOSITION LAW (SPECIAL PART) 22. Chapter II (Special provisions) of Ordinance no. 137/2000 republished is structured in 5 sections which refer to Equality in the economic activity and employment, access to goods and services, access to education, freedom of movement and right to personal dignity. 23. Section I, „Equality in the economic activity and in the fields of employment and occupation” regulates issues concerning: ® participation of a person to an economic activity or his free choice or exercise of a profession; ® conclusion, suspension, modification or termination of labour relations; ® establishing and modification of the labour tasks, place of work or wage; ® granting of other social rights than the wage; ® training, advanced training, conversion and advancement; ® enforcement of disciplinary measures; ® the right to affiliate to a trade union and access its facilities; ® any other labour provision conditions, according to legislation in force; ® an individual's or legal person's refusal to employ somebody; ® limiting the filling of a post through competition or advertisement published by an employer or by its representative; ® social entitlements granted. 24. Section II, „Access to legal and administrative public services, to health and other services, goods and facilities” regulates issues concerning: ® refusal to grant public administrative and legal services; ® refusing the access of a person or of a group of persons to public health services – choosing the personal physician, medical assistance, health insurance, emergency or other health services; ® the refusal to sell or lease a plot of land or dwelling location; ® the refusal to grant a bank loan or to conclude any other type of contract; ® refusing the access of a person or a group of persons to the services offered by theatres, cinemas, libraries, museums and exhibitions; ® refusing the access of a person or of a group of persons to the services offered by shops, hotels, restaurants, bars, discotheques or by any other service providers, irrespective if they are under private or public ownership; ® refusing the access of a person or of a group of persons to the services offered by public transport companies – by plane, ship, train, metro, bus, trolley, tram, taxi or by other means; ® refusal to grant certain rights or facilities to a person or a group of persons. 25. Section III, „Access to education” regulates issues concerning: RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 13 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” ® refusing the access of a person or of a group of persons to the state or private educational system; ® any restraint in the process of setting up and accreditation of educational institutions established under legislation in force. 26. Section IV, „Freedom of movement, right to freely choose a residence and access to public places” regulates issues concerning: ® actions consisting of threats, coercion, use of force or any other means of assimilation, resettlement or colonization of persons, in order to change the ethnic, racial or social composition of a zone of the country or of a locality; ® behaviours consisting of persuading a person to leave his/her residence, of deporting or burdening the living conditions with the purpose of waiving the traditional residence of a person or a group of persons without their agreement. Forcing a group of persons belonging to a minority to leave the locality, area or zones of living and obliging a group of persons belonging to the majority to settle in localities, areas or zones inhabited by a national minority; ® behaviours aimed to displace or send away a person or a group of persons from a neighbourhood or a building; ® interdicting the access of a person or of a group of persons to public places. 27. Section V, „Right to personal dignity” regulates issues concerning:: ® behaviours exhibited in public, having a nationalist and chauvinist nature, inciting to racial or national hatred or that behaviour aimed or intended to offend the dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, which is directed against a person, a group of persons or a community. IV. Specific occupational requirements in the racial Directive (ARTICLE 4) and national transposition law A. SPECIFIC OCCUPATIONAL REQUIREMENTS IN THE RACIAL DIRECTIVE 28. 4 of the racial Directive regulates the concept of "Specific occupational requirements". According to art. 4 of the racial Directive: Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to racial or ethnic origin shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. B. SPECIFIC OCCUPATIONAL REQUIREMENTS IN NATIONAL LAW 29. Section I of Chapter II of G.O. no. 137/2000 republished regulates the field of equality in the economic activity , in employment and occupation. The content of articles 5-8 of G.O. no. 137/2000 regulate infringements regarding the limitation of taking part in an economic activity or of choosing or exercising a profession; discrimination in labour relationships, wage entitlements, labour tasks, training, disciplinary measures, affiliation to a trade union, employment refusal and employment advertisements, social entitlements (for details see the Appendix of Ordinance no. 137/2000, republished). 30. In this context, art. 9 of G.O. no. 137/2000, republished provides: RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 14 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” The provisions of art. 5-8 cannot be construed in the sense of restricting the right of an employer to refuse employing a person that does not meet the relevant occupational requirements, as long as the refusal is not a discrimination deed for the purpose of this ordinance and such measures are objectively justified by a legitimate aim and the methods of attaining it are appropriate and necessary. V. Positive action in the racial Directive (ARTICLE 5) and national transposition law A. IN THE RACIAL DIRECTIVE 31. Art. 5 of the racial Directive regulates the concept of positive action and provides: With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin. B. POSITIVE ACTION IN NATIONAL LAW 32. According to the provisions of art. 2 par. 9 of G.O. no. 137/2000, republished: For the purpose of this ordinance, the measures imposed by local authorities or by private law entities in favour of a person, a group of persons or a community aiming to secure their natural development and effective attainment of equality of chances in relation to other persons, groups of persons of communities, as well as positive measures aiming to defend disadvantaged groups is not discrimination. VI. Minimal requirements in the racial Directive (article 6) and national transposition law A. MINIMAL REQUIREMENTS IN THE RACIAL DIRECTIVE 33. According to art. 6 par. 1 of the racial Directive: Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive. RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 15 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” B. „AGGRAVATING CIRCUMSTANCES" IN NATIONAL LAW 34. National law implicitly introduces the concept of multiple discrimination and regulates discrimination on two or more grounds as an aggravating circumstance in determining contraventional liability. According to art. 2 par. 6 of G.O. no. 137/2000, republished (introduced by G.O. no. 77/2003): Any distinction, exclusion, restriction or preference based on two or more criteria provided in par. 1 is an aggravating circumstance in determining contraventional liability if one or more of their components are not under the criminal law. VII. Means of appeal and of protection of rights in the racial Directive (article 7) and national transposition law A. „PROVIDING JUDICIAL AND ADMINISTRATIVE PROCEDURES” 35. According to art. 7 par. 1 of the racial Directive: (a) Member States shall ensure that judicial and/or administrative procedures, including wher