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„protecţie efectivă a drepturilor omului”

Commission of 2 July 2008 to the European Parliament, European Council, European Economic and Social Committee and Committee of the Regions is re-stated that: „the identical treatment can result in formal equality, but it cannot ensure equality in practice”. Legislation in the non-discrimination area at the level of the European Union does not prevent Member States from maintaining and adopting specific measures or from compensating for disadvantages related to discrimination". The European Commission further shows that: "there is growing appreciation for the role of positive action in order to ensure the 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 possibilities for positive action, particularly as regards the access to education, labour, housing and health". In transposing the provisions of Directive 43/2000/EC on equal treatment on grounds of ethnic or racial origin, G.O. no. 137/2000, subsequently amended and supplemented, republished stipulates in art. 2 par. 9: „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 area of non-discrimination, has chosen to allow positive measures or measures in favour of some persons, aiming 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 some 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 must be specified that in Romania affirmative measures or positive actions have been recently adopted by both the Parliament and the Government regarding national minorities, especially in the field of participation and political representation or in the field of education (Excerpt from Decision no. 393 of 02.07.200932).

V. ARTICLE 7 OF DIRECTIVE 2000/43/EC

Capacity to stand the proceedings in discrimination cases. Protection of rights. Interpretation.

251. According to art. 5 of the internal procedure: „The petitioner is the person who deems himself/herself discriminated and notifies the Council regarding the perpetration of the discrimination deed against him”. According to art. 7 par. 1 and 2 of the internal procedure „(1) The concerned person is either the person who deems himself to be discriminated and notifies the Council regarding the perpetration of a discrimination deed against him/her either by one of the persons stipulated in art. 8 par. (1) şi (2) or by other persons who have a legitimate interest in combating discrimination and he is a person, a group of persons or a community against which a discrimination deed was perpetrated”. (2) Persons who do not have the exercise of their rights can be a party if they are represented, assisted or authorized, according to the law”. 252. According to art. 28 par. 1 and 2 of G.O. no. 137/2000, republished as well as art. 8 of the Internal procedure: The non-governmental organizations aimed at protecting human rights or having a legitimate interest in combating discrimination have the capacity to pursue the proceedings in case the discrimination relates to their field of activity and it prejudices a community or a group of persons. (2) The organizations stipulated in par. (1) have the capacity to pursue the proceedings also in case the discrimination prejudices an individual, upon his request (…).

253. 253. Referring to the provisions of G.O. no. 137/2000 republished, the Committee restates that for the purpose of
the provisions of art. 20 par. 1 „The person who considers himself to be discriminated can notify the Council (…)”. .
Therefore, the legislator establishes in the benefit of the person who consider themselves discriminated the right to an
action for ascertaining and contraventionally sanctioning a discrimination by NCCD. Art. 20 par. 6 of G.O. no. 137/2000,
republished, as regards procedural obligations rules that „The concerned person has the obligation to prove the existence
of deeds presuming to allow the existence of a direct or indirect discrimination and the person against whom the
notification was filed has the task to prove that the deeds are not discrimination".
254.       Unlike art. 20 par. 1 of G.O. no. 137/2000, republished in which the legislator uses the phrase "the person who
deems himself discriminated" in art. 20 par. 6 is contained the phrase "the concerned person". In order to fully understand

32 Committee Decision no. 393 of 02.07.2009, reasoning drawn-up by NCCD Steering Committee member Istvan Haller

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