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230. It is well to know that G.O. no. 137/2000, as amended through law no. 324/2006 transposed the provisions of Directives 2000/43/CE and 2000/78/CE. In this regard, the Ordinance provides in art. 9 that the provisions regarding contraventions in the field of employment and occupation (art. 5-8) cannot be construed to restrict the right of an employer to refuse employing a person that does not fit the relevant occupational requirements, as long as the refusal is not a discrimination deed in the sense of this ordinance and such measures are objectively justified by a legitimate aim and the methods of attaining it are appropriate and necessary”. 231. Thus, the requirement imposed by the petitioner which is the object of this complaint must be analyzed including with regard to the provisions of art. 9 of G.O. no. 137/2000, republished. (...). If we are in the field of access to employment and of specific requirements for filling a position (…) it must be analyzed if we fall under genuine and determined professional features, within the meaning of a specific occupational requirement (Excerpt of Decision no. 510 of 29.10.2009, 125 of 07.07.201028).

IV. ARTICLE 5 OF DIRECTIVE 2000/43/EC

A. Transposition of the concept of positive action. Determining the positive action and the positive discrimination. Affirmative measures. Interpretation of concept. Reference points from the case-law of the European Court of Justice.

232. The Steering Committee should have analyzed if the measure in this case (…) constitutes per se an affirmative measure (positive action) allowed by the acquis communautaire or a positive discrimination prohibited at the level of the European Union and implicitly in Member States legislation. In the Notice of the European Union of 30 October 2006 to the European Council and Parliament regarding the implementation of Directive 43/2000/EC regarding the equality of treatment on ethnic or racial grounds (see COM (2006) 643 final, Brussels, 30.10.2006, the European Commission explicitly states that the long-term situation and persistency of disadvantages suffered by some groups are such that the right to non- discrimination is not sufficient and positive measures might be necessary to improve the equality of opportunities. Article 5 of the Directive of Racial Equality provides that 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. Thus, the European Commission notes that there is a difference between positive measures or actions which are allowed and the so-called measures of „positive discrimination” which are not compatible with the Racial Equality Directive. On the one hand, positive action measures are aimed at ensuring full equality in practice by preventing or compensating for the

disadvantages related to racial or ethnic origin. On the other hand, measures of „positive discrimination” give an absolute and automatic preference (for example in the access to labour) to the members of a particular group over others for the sole reason of belonging to that group. In the recent Notice of the European Commission of 2 July 1008 to the European Parliament, European Council, Economic and Social European Committee and Committee of the Regions regarding "non- discrimination and equal opportunities: a renewed commitment" (see COM (2008) 420 final, Brussels, 2.7.2008), the European Commission restates that: the identical treatment can result in formal equality, but it cannot ensure equality in practice". Discrimination legislation at EU level does not prevent Member States from maintaining and adopting specific measures or compensating for disadvantages in relation to discrimination…” The European Commission then points out that: „there is a growing appreciation for the role of the positive action in ensuring a remedy for the lack of substantial equality in societies (…). The Commission will permanently talk with Member States in order to promote the full use of opportunities for positive action and particularly as regards access to education, labour, housing and health”. 233. In terms of European legislation in this area, the first legal provisions in the field of positive action were included in

art. 2 par. 4 of Equal Treatment Directive 76/207 (between women and men). Subsequently, through the Maastricht Agreement on Social Policy and the Amsterdam Treaty, positive action was included in the Treaty establishing the European

28 Decision of the Steering Committee no. 510 of 29.10.2009, no. 125 of 07.07.2010, reasonings drawn up by member of NCCD Steering Committee, Dezideriu Gergely.

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