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„protecţie efectivă a drepturilor omului”

Communities, art. 141 par. 4: „In order to ensure full equality in practice between men and women in the field of labour, the principle of equal treatment shall not prevent Member States from maintaining or adopting measures which foresee specific advantages to facilitate the pursuit of vocational activity for the under-represented sex or to prevent or compensate for disadvantages in professional career". The European Court of Justice settled that: „the exception provided for in art. 2 par. 4 of Directive 76/207 is specifically and exclusively designed to allow measures which, although apparently discriminatory are aimed at eliminating or moderating the actual situations of inequality which may exist in the reality of social life”. (see case C- 312/86, Commission vs. France (1988) , ECR 6315 par. 15). In its subsequent case-law, the European Court of Justice showed that "the purpose of art. 2 par. 4 is to reach substantial equality rather than formal equality, by reducing de facto inequalities which might emerge in the society". (see case C-407/98 Abrahamsson (2000) ECR I-5539, par. 48; case C-319/03, Briheche (2004) ECR I-8807, parag.25). 234. In order to justify a measure adopted at Members States level in terms of article 2 par. 4, on which is also based the recent case-law of the European Court of Justice in the area of positive action on gender grounds, the European Court has

established a set of elements to be analyzed in a restrictive manner. Firstly, a national measure should aim to „remedy the existing situation given by the disproportion between men and women in a specific sector or level of career" (see case C- 476/99, Lommers (2002) ECR I-2891). This requires evidence of such disproportions which might justify a positive action measure. A measure that rather aims to compensate for inequalities than remove them does not fall under art. 2 par. 4. Secondly, a positive measure must be adequate. The European Court of Justice analyzes whether the measure in question is likely to attain the purpose of remedying the existing disproportion. (see case C-366/99, Griesmar (2001), ECR I-9383.) Thirdly, the measure or positive action must be proportionate - judged according to the equality principle with regard to persons who do not benefit of this measure ( see case C-407/98, Abrahamsson (2000) ECR I-5539, case C-79/99 Schnorbus (2000) ECR I-10997 and case C-476/99 Lommers (2002) ECR I-2891). Thus, the measure must be necessary, appropriate and should not exceed the proposed objective. This aspect implies that automated or absolute preferences are not allowed. (see case C-407/98, Abrahamsson (2000) ECR I-5539.8.) It its recent decisions, the European Court of Justice predominantly refers to the requirement of proportionality, but it has not yet established a clear set of criteria for determining it (see

European Commission, „Putting equality into practice: What is the role of positive action?", report financed by the European Commission, Directorate-General for Employment, Social Affairs and Equal Opportunities, Unit G.4., published in March 2007). 235. On the other hand, at the level of the European Union has recently been adopted 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 Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, published in the Official Journal of European Communities (OJ) no. L303 of 2 December 2000. The provisions of art. 5 regarding positive action in Directive 2000/43/EC stipulate that: 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”. In the same regard, the provisions of art. 7 par. 1 of Directive 2000/78/EC stipulate as follows: 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 any of the grounds referred to in Article 1 (i.e.
religious affiliation or convictions, disability, age or sexual orientation).
236.      In relation to these measures adopted at the level of EU, it must be specified that the provisions of Council Directive
2000/43/EC implementing the principle of equal treatment between persons irrespective of their racial or ethnic origin and
the provisions of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and
occupation have been transposed through G.O. no. 137/2000, subsequently amended and supplemented, republished. In
transposing the two European Directives, G.O. no. 137/2000, subsequently amended and supplemented, republished with
reference to positive action, in art. 2 par. 9 stipulates that: ”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 in relation to the other persons,
group of persons or communities, aiming to ensure their normal development and the effective attainment of equality of
chances, as well as the positive measures aiming at protecting the disadvantaged groups are not discrimination”. Thus, it is
unequivocal that the Romanian legislator, in considering the acquis communautaire in the field of non-discrimination has

chosen to allow positive measures or measures in favour of some individuals, aiming to ensure their natural development and the effective attainment of their equality of opportunities. Moreover, the final statement of art. 2 par. 9 of G.O. no. 137/2000, republished regulates expresis verbis that the measures adopted in favour of persons, groups of persons or communities or positive measures aiming to protect disadvantaged groups do not constitute discrimination for the purpose of the ordinance. It has to be mentioned that in Romania affirmative measures have recently been adopted by both the Parliament and the Government regarding national minorities, especially in the field of participation and political

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