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„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.

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