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244. Also, through Decision no. 517 of 25 November 2004, with regard to art. 55 of Law no. 14/2003, the Constitutional Court ascertained that: „according to its provisions, the organizations of citizens belonging to national minorities who take part in elections shall comply with the provisions of the law of political parties", except for the articles it mentions. This legal text is in fact only an expression of the constitutional provisions of art. 62 par. (2). Thus, the legislator pursued the application of the principle of equality of opportunities between citizens by eliminating, according to the constitutional provisions of art. 4 par. (2) any form of discrimination, among others on criteria of „nationality, ethnic origin, […], political affiliation [...]".Constituting therefore a guarantee of rights of citizens who are a minority , this legal text not only it does not infringe the constitutional provisions(...), but it is a real means of protection of the rights established through the Constitution. (Excerpt of Decision no. 303 of 10.04.2008, NCCD31).

D. Affirmative measures. Government Strategy for improving the Roma situation. Measures at the level of the local government 245. Government Decision no. 430/2001, amended and supplemented provides for the possibility to employ Roma experts within town halls to implement the Government Strategy for improving the Roma situation. The local Council (…), through Decision no. 20/2006 ascertained the local need to hire a Roma expert, thus the petitioner was employed, with an undetermined labour contract. These legal norms recognize the different situation of the Roma community and provide a differentiated treatment, namely hiring an expert at the level of the town hall to deal with the situation of these communities. 246. Starting from the situation subject to analysis, it must be specified that the principle of equal treatment between persons must not be regarded exclusively from the perspective of formal or legal equality which establishes that persons in similar situations must be treated similarly. Legal equality is based on equal treatment and on the appearance of similarity

irrespective of the general context. Or, considering this hypothesis, the second conclusion of the principle of equal
treatment is formulated, namely substantial equality. Substantial equality considers the hypothesis of persons in different
situations who must be treated differently, comprising two distinct ideas: equality of result and equality of opportunities.
247.       A). The equality of result requires that the result of a measure applied to persons in different situations must be
equal. Thus, it is recognized that the apparently identical treatment in practice may yield inequalities due to previous or
current discriminations or to differences of access (to resources, to services, to rights, etc). For the hypothesis of equality of
result, the effects, as well as purpose of the measure applied must be taken into account primarily.
248.      B). The equality of opportunities signifies that the law could ensure equal opportunities for all persons, taking into
consideration their starting positions, in order to have access to pursued benefits. The equality of opportunities has as purpose
providing an equality of opportunity, but not of result. Moreover, in the European legislation the concept is standardized as
„positive action” or „affirmative measure”. The situation subject to analysis by the Committee should have been regarded from
the perspective of substantial equality and especially the equality of opportunities and not necessarily from the perspective of

legal or formal equality. The European Court of Human Rights, the European Court of Justice and the Constitutional Court of Romania have constantly and uniformly re-stated the two forms of the equality principle. The Constitutional Court settled: "the different situations in which the different categories of persons are justifies the establishment of differentiated legal treatment through the law, without these being privileges for some and discriminations for others: (Decision no. 119 of 15 February 2007, Decision no. 332 of 18 April 2006, Decision no. 438 of 10 May 2007). 249. Article 5 of Directive 43/2000/EC regarding the equality of treatment on ethnic or racial grounds provides 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”. Thus, the European Commission notes that there is a difference between positive measures or actions which are grounds and the so-called measures of „positive discrimination” which are not compatible with Directive 43/2000/EC. The measures of positive action are aimed at ensuring full equality in practice by preventing or compensating for the disadvantages related to racial or ethnic origin and measures of "positive discrimination" give an absolute and automated preference (for example in the

access to labour) to the members of a particular group in relation to others for the sole reason of affiliation with that group. 250. In the Notice regarding non-discrimination and equal opportunities: a renewed commitment of the European

31 Committee Decision no. 303 of 10.04.2008, reasoning drawn up by NCCD Steering Committee member, Dezideriu Gergely

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