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scrimination has not been established”. 55. The European Commission restates the importance of adopting Government Ordinance no. 137/2000 on the 3 See the Official Journal of the European Communities, L44/82, 14.2.2002, Council Decision on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with Romania (2002), Political criteria, Human rights and minority protection, “…Establish and ensure the due functioning of institutions to prevent and combat all forms of discrimination…”. 4 See the European Journal of the European Communities, L145/26, 12.6.2003, Council Decision on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with Romania; “Continue alignment of the acquis on anti-discrimination and ensure its proper implementation by making the Romanian National Council for Combating Discrimination fully operational”. 5 See Regular Report from the Commission on Romania's Progress towards accession; 8 November 2000; page 21, “In September 2000, one important development was the introduction, by government ordinance, of new legislation prohibiting discrimination by public employees, individuals, private companies and economic operators on the grounds of nationality, race, ethnicity, age, gender, or sexual orientation. Heavy fines have been established for violating its provisions. This initiative is a very positive step – but both further secondary legislation and revised institutional arrangements will be necessary before the provisions contained in the ordinance can be applied. It therefore remains too early to assess the effectiveness of this measure”. 6 See idem; page. 59 “The implementation of this legislation (which, inter alia, aims to transpose the provisions of the EC Directive, based on Art. 13 of the Treaty, relative to discrimination on the grounds of race or ethnic origin), will require substantial effort and continuous attention”. RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 20 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” prevention and sanctioning of all forms of discrimination, considering that broadly the law is in line with Directive 43/2000 and with the recent recommendations of the European Commission against Racism and Intolerance, but it notes that: „The ordinance is inoperative because secondary legislation has not been adopted and the National Council for Combating Discrimination has not been established”7. The 2002 Regular Report of the European Commission: „NCCD is not an independent institution". 56. In 2002, the European Commission explicitly expresses concern for the status of the National Council for Combating Discrimination, as established through G.O. no. 137/2000 and consequently through G.D. no. 1194/2001 and G.D. no. 1514/2002. The Commission Report underlines that: it is necessary to amend legislation in order to be in line with the acquis under the provisions of art. 13 of the EC Treaty” and in respect of NCCD it indicates that „in practice it is not an independent institution since it is administratively subordinated to the Government”8. The 2003 Regular Report of the European Commission: „NCCD remains subordinated to the Government…limited capacity to act independently”. 57. The 2003 Commission report appreciates the significant progress made by the National Council for Combating Discrimination „in its first year of activity and the ruling of sanctions in discrimination cases which were an important exhibit of the Council's authority". The Commission further underlines that "the new legal provisions have clarified the responsibilities of the Council, but a number of legislative issues remain unresolved. The legal framework should be revised in order to clarify the role of the Council in relation to other public bodies”. The issue of the lack of independence is restated by the European Commission and „as noted in the previous year Regular Report, „the fact that NCCD remains administratively subordinated to the Government seems to limit its capacity to act independently”9. In the Report, the European Commission appreciates that „it should be noted that among the candidate countries, Romania is the first that has an efficient equality institution”10. The 2004 European Commission Regular Report: „NCCD's capacity should be strengthened”. 58. The European Commission analyzes the activity of preventing and combating discrimination conducted by NCCD, considering, inter alia that „the institution has proved its capacity of making decisions: courts confirmed the existence of discrimination in disputed solutions, although the sanctions enforced were cancelled in various cases". "The new legislative provisions adopted in February 2004 were a progress in the transposition of the acquis in the field of non-discrimination, but some elements of an effective anti-discrimination mechanism, such as the reversal of the burden of proof or statistical data to prove indirect discrimination are still missing”. The European Commission also stresses that „the capacity of the National Council for Combating Discrimination should be strengthened”11. (In this respect see Annex 5). 7 See 2001 Regular Report from the Commission on Romania's Progress towards accession, 13.11.2001; page 22 “…The ordinance covers rights defined in relevant international agreements and is broadly in line with the Council Directive on Implementing the Principle of Equal Treatment between Persons Irrespective of their Racial and Ethnic Origin as well as recent recommendations of the European Commission against Racism and Intolerance. However the ordinance is not yet operational since the necessary secondary legislation has not been adopted and the implementing body, the National Council for Preventing and Combating Discrimination, has not yet been established. Despite these delays, this legislation should, when implemented, represent a positive development by providing legal protection against discrimination on various grounds, including ethnic origin, language, religion and sexual orientation. 8 See 2002 Regular Report from the Commission on Romania's Progress towards accession, 9.10.2002; page 29; ”However, amendments to the law will be needed in order to fully conform with the acquis based on Article 13 of the EC Treaty, notably with regard to indirect discrimination and the burden of proof. …The decision setting up the Council states that it will operate independently of any institution or public authority. However, in practice it is not an independent body as it remains administratively subordinate to the Government” and page 85 “The National Council for Combating Discrimination was established in August 2002. These are positive developments although amendments to the law will be needed in order to fully conform with the acquis”. 9 See 2003 Regular Report from the Commission on Romania's Progress towards accession, page 22 “The National Council for Combating Discrimination has made significant progress during its first year of activity and the issuing of decisions sanctioning cases of discrimination has been an important demonstration of its authority. New legal provisions have clarified the responsibilities of the National Council. However, a number of the gaps in the legislative framework raised in last year's Regular Report have not been resolved (i.e. indirect discrimination and the burden of proof). The legal framework also needs to be revised in order to clarify the role of the National Council vis-à-vis other public institutions. As noted in last year's Regular Report, the fact that the National Council remains administratively subordinate to the government appears to limit its capacity to act independently…”. 10 See idem, page 79; “It should be noted that among the acceding and candidate countries Romania is the first to have a functioning equality body”. 11 A se vedea 2004 Regular Report from the Commission on Romania's Progress towards accession, 6.10.2004, pag.23 si 95 ”The National Council for Combating Discrimination (NCCD) has continued its policy to prevent discriminatory actions. New legal provisions adopted in February 2004 represented further progress with the transposition of the anti-discrimination acquis. However, despite several legislative improvements, some elements of an efficient antidiscrimination mechanism, such as the shift of the burden of proof or acceptance of statistical data as evidence of indirect discrimination, are still lacking. Nevertheless, the NCCD proved its capacity to get support for its decisions: court decisions have usually confirmed the existence of discrimination in the cases contested - although the fines applied by NCCD have been invalidated in several cases. Notwithstanding the progress made, the capacity of the National Council for Combating Discrimination could also be enhanced. RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 21 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” 59. The European Commission underlines that, in the field of non-discrimination, legislation still requires completions regarding the reversal of the burden of proof in order to establish an efficient mechanism in Romania and draw attention particularly on the strengthening of NCCD's administrative capacity, on providing financing for the institution, transparency and especially, "securing independence"12. In particular, the European Commission draws attention that „Romanian authorities should prove at all levels that they apply a zero tolerance policy regarding racism against Roma or other minorities or groups and that this policy is effectively implemented”13”. D. The process of transposition of the acquis in 2006 and securing the independence of the National Council for Combating Discrimination 60. Following successive amendments brought to Government Ordinance no. 137/2000 and through Law no. 48/2002, Government Ordinance no. 77/2003 and Law no. 27/2004, the minimum standards set out in European Directives were partly transposed in Romanian legislation, but, as specified by the European Commission in its reports pending disagreements remained between the internal law and the provisions of the acquis communautaire, i.e. Council Directives 2000/43/EC and 2000/78/EC and for this reason, anti-discrimination legislation still requires amendments (Regular Reports of the European Commission, years 2001-2006). 61. Given the potential risk that at the date of accession of Romania to the European Union, at 1st January 2007, non- discrimination legislation shall not be not in accordance with the acquis, on 14 July 2006 was adopted Law no. 324/2006, an organic law by which the non-discrimination standards were substantially amended, especially as regards the status of the national body designated to monitor and implement relevant legislation, the National Council for Combating Discrimination. 62. Law no. 324/2006 amending and supplementing Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination, published in the Official Gazette of Romania, Part I, no. 626 of 20 July 2006 expressly provides that it transposes the provisions of the Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, published in the Official Journal of the European Communities (OJ) no. L180 of 19 July 2000 and the provisions of Council Directive 2000/78/EC establishing a general framework in employment and occupation, published in the Official Journal of the European Communities (OJ) no. L303 of 2 December 2000. E. Amendment of NCCD's status in 20066 63. In order to transpose the acquis communautaire and consequently decrease constant criticism from the European Commission, European Commission against Racism and Intolerance, Advisory Committee on the Framework Convention for the Protection of National Minorities and from other international institutions, the Romanian lawmaker regulated the institutional issues notified and aligned the National Council for Combating Discrimination, as regards its status, to international standards14. 64. Thus, following amendments made by Law no. 324/2006, the National Council for Combating Discrimination is the national authority that investigates and contraventionally sanctions discrimination deeds or acts, autonomous, with legal personality, under the Parliament's control and a guarantor of the observance and enforcement of the non-discrimination principle, according to internal legislation in force and international documents to which Romania is a party”.15 12 See 2005 Regular Report from the Commission on Romania's Progress towards accession, pag. 54, 55; ”Legislative alignment in the field of anti- discrimination is still to be completed especially as regards the shift of the burden of proof in order to have in place an efficient anti- discrimination mechanism in Romania. The overall administrative capacity of the National Council for Combating Discrimination should be enhanced, including funding, transparency and general awareness of its activities, and its independence should be guaranteed”. 13 See Idem, page 19 “The Romanian authorities should demonstrate, at all levels, that the country applies a zero-tolerance policy on racism against Roma or against any other minority or group and that this policy is effectively implemented. 14 Directiva Consiliului Uniunii Europene nr. 43/2000, Recomandarea Comisiei Europene împotriva Rasismului şi Intoleranţei nr. 2 şi Recomandarea nr. 7, Rezoluţia Adunării Generale a ONU nr. 48/134 din decembrie 1993, „Principiile de la Paris” privind măsurile pentru crearea unor instituţii naţionale de drepturile omului. 15 See art. 16 of Law no. 324/2006 amending and supplementing Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination, published in the Official Gazette of Romania, Part I, no. 626 of 20 July 2006. RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 22 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” 65. The Council is responsible for the enforcement and control of observance of legal provisions in its sphere of activity, and for the harmonization of provisions of legislation or administrative acts which are contrary to the principle of non- discrimination16. 66. The Council develops and implements public policies in the field of non-discrimination. In this regard, the Council consults with public authorities, non-governmental organizations, trade unions and other legal entities which pursue the protection of human rights or have a legitimate interest in combating discrimination17. 67. In exercising its prerogatives, the National Council for Combating Discrimination operates independently, without being hindered or influenced by other bodies or public authorities. In order to combat discrimination deeds, the National Council for Combating Discrimination exercises its prerogatives in the following fields: prevention of discrimination deeds; mediation of discrimination deeds; inquiry, ascertaining and sanctioning of discrimination deeds; monitoring of discrimination cases; providing specialized assistance to the victims of discrimination19. F. Position of the European Commission regarding the amendments adopted through Law no. 324/2006 and NCCD's independence status 68. Following the amendments introduced by Law no. 324/2006, in the Notice of the European Commission of 26 September 2006, included in the Monitoring Report regarding the stage of preparation of Bulgaria and Romania for accession to the European Union, chapter Political Criteria, point 2, "Other issues which needed further progress in May 2006", the European Commission expressly specifies: „The law on preventing and sanctioning all forms of discrimination has been amended to meet EU standards related to the independence of the National Council for Combating Discrimination”20. G. Conclusions 69. Change of the status of the National Council for Combating Discrimination from specialized body of the central Government, subordinated to the Government, in a state authority, autonomous, under the Parliament's control (art. 16, art. 17, art.18 of law no. 324/2006) as it results from the conclusions of the European Commission, meets the independence standard specified in the European legislation in the field of non-discrimination. 70. The procedures of appointing the members of the NCCD's Steering Committee by the Parliament (art. 23, art. 24, art. 25 of Law no. 324/2006) contain clear provisions regarding the conditions for nomination, the term of office, guaranteeing prevention of arbitrary dismissals according to the standards set out