Vezi raport EN

„protecţie efectivă a drepturilor omului”

I. ARTICLE 2 PAR. 3 OF DIRECTIVE 2000/43/EC

Transposition of the concept of harassment as a form of discrimination. Interpretation of concept

220. The Steering Committee refers to the provisions of art. 2 par. 5 of G.O. no. 137/2000, subsequently amended and
supplemented, republished. According to art. 2 par. 5 „Any behaviour based on a criterion such as race, nationality, ethnic
and social origin, language, religion, 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".
221.      Harassment is a form of discrimination, introduced by the Romanian legislator in the process of transposition of the
provisions of Council Directive 2000/43/CE 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/CE establishing a general framework for equal treatment in employment and
occupation, published in the Official Journal of the European Communities (OJ) no. L303 of 2 December 2000.
222. In this regard, we set down that in the domain of non-discrimination legislation, as the acquis communautaire is
transposed, in order to have a harassment deed the cumulative meeting of its elements is necessary. Thus, the victimization

deed consists of a behaviour which may take different forms. The wording of the text includes the phrase "any behaviour”. The phrase „any behaviour” indicates the legislator's intention to include a large set of behaviours and not a restrictive one, which allows retaining different characterizations in practice and which may vary from case to case, under the form of statements expressed through words, gesture, acts or deeds, etc. 223. The motive or cause of the behaviour is determined by an inherent criterion, which is expressly provided by the legislator, in a non-exhaustive list, given that the law presents in an enumeration with a fixed character the criteria of „race, nationality, ethnic origin, language, religion, social category, convictions, gender, sexual orientation, affiliation with a disadvantaged category, age, disability, refugee or asylum-seeker status”. The non-exhaustive character is given by the phrase „or any other criterion” added to the express criteria. The phrase „or any other criterion” basically gives the option of setting down any other element not specified by the law, but which is carried out as a determinant in the perpetration of any form of discrimination named harassment. 224. The manifestation of the behaviour based on any of the criteria specified by the law „leads to creating an

intimidating, hostile, degrading or offensive environment”. This constitutive element of harassment allows setting down those behaviours which, even if not perpetrated intentionally generate the effect of an environment defined as "intimidating, hostile, degrading or offensive". This is even more obvious as Council Directive 2000/43/EC itself implementing the principle of equal treatment between persons, irrespective of racial or ethnic origin defines harassment in art. 2 par. 3 as: an unwanted conduct related to racial or ethnic origin with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment”. 225. The inclusion of harassment as a form of discrimination in the acquis communautaire and its transposition in national legislation is extremely important. Discrimination does not take form per se, only under the form of regulatory provisions or practices, but also under behaviours which generate an impact over the environment in general, varying from physical violence to racist remarks or statements, until total ostracism. This form of discrimination offends dignity mentally and emotionally to persons belonging to one minority or another ( see „A Comparison between the EU Racial Equality Directive and the Starting Line” in I. Chopin and J. Niessen, The Starting Line and the Incorporation of the Racial Equality

Directive into National Laws of the EU Member States and Accession States, 2001, page 26, 27). Excerpt from Decision no. 103/18.02.2008, similarly see Decision no. 208/20.02.2008 Decision no. 613/13.11.2008, Decision no. 87/02.06.2010, Decision no. 107/09.06.2010, Decision no. 149/07.07.2010 etc).26

26 Committee Decision no. 103/18.02.2008, Decision no. 208/20.02.2008, Decision no. 613/13.11.2008, Decision no. 87/02.06.2010, Decision no. 107/09.06.2010, Decision no. 149/07.07.2010, reasoning drawn-up by the Steering Committee of NCCD, Dezideriu Gergely.

     RO - Piaţa Valter Mărăcineanu 1-3, sector 1,
      Bucureşti, Tel / fax 021-312.65.78/79/85                   59                     „building trust in human rights”
                   www.cncd.org.ro