Vezi raport EN

„building trust in human rights” 1 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA Report regarding the implementation of framework Directive (2000/78/EC) in Romania 2003 - 2010  „building trust in human rights” 1 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA  „building trust in human rights” 1 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA Report regarding the implementation of framework Directive (2000/78/EC) in Romania 2003 - 2010 2 CONSILIUL NAŢIONAL PENTRU COMBATEREA DISCRIMINĂRII „protecţie efectivă a drepturilor omului”  „building trust in human rights” Contributions 3 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA The report regarding the implementation of the framework Directive in Romania summarizes the activity of the National Council for Combating Discrimination during 2003 – 2010, in terms of actions, programs and discrimination cases which are relevant under Directive 2000/78/EC. The achievement of the report was possible through the setting up and collaboration of a working group made up of experts within the specialized departments of the National Council for Combating Discrimination. Composition of the working group: Dezideriu Gergely, Steering Committee member (coordinator), Carmen Chiru, Angelica Paraschiv (Office of Assistants to the Steering Committee), Corina Comsa, Diana Pana, Andrei Sinescu (Division of Programs and International Relations), Vlad Ifrim (Legal Division), Nicoleta Udrescu (Economic and Human Resources Division) and Dora Margarit (Office of the President). The table of legislative correspondence between the national law and the Directive, NCCD’s statute (Chapter I), the graphical summary of complaints and cases of ascertaining discrimination (Chapter II), the summary of discrimination cases found by NCCD during 2003- 2010 (Chapter III) and the summary of cases regarding the interpretation of concepts of Directive 2000/78/EC in NCCD’s case-law (Chapter IV) were performed by Dezideriu Gergely. The selection of decisions delivered by the Steering Committee during 2003 – 2010, according to discrimination criteria of Directive 2000/78/EC and correlated elements of statistics (annex) were performed by Carmen Chiru and Angelica Paraschiv. The situation of decisions attacked at contentious matters courts was carried out by Vlad Ifrim. The presentation of actions, activities and programs undertaken by NCCD with regard to discrimination on the grounds of Directive 2000/78/EC (Chapter V) was carried out by Corina Comsa, Diana Pana, Andrei Sinescu. The process of editing, correction and text layout of the report was conducted by Dora Margarit.  „protecţie efectivă a drepturilor omului” CONTENTS CHAPTER I: MEASURES OF TRANSPOSING DIRECTIVE 2000/78/EC IN NATIONAL LEGISLATION I. The context of adopting the Directive and national transposition law 1. Adoption, entry into force, transposition and reporting deadline for the implementation of the Directive 2. Adoption, entry into force, amendments and supplements to national law of transposing the Directive 4 CONSILIUL NAŢIONAL PENTRU COMBATEREA DISCRIMINĂRII II. The discrimination concept in the framework Directive (ARTICLE 2) and national law 1. Direct discrimination in the framework Directive 1.1. Direct discrimination in national law 1.2. Prohibition of direct discrimination in the Labour Code 2. Indirect discrimination in the framework Directive 2.1. Indirect discrimination in national law 2.2. Prohibition of indirect discrimination in the Labour Code 3. Harassment in the Framework directive 3.1. Harassment in national law 4. The instruction to discriminate in the framework Directive 4.1. The instruction to discriminate in national law III. The scope of the framework Directive (ARTICLE 3) and national transposition law 1. The scope of the framework Directive 2. The scope of the national transposition law (the general part) 3. The scope of the national transposition law (special part) IV. Specific occupational requirements in the framework Directive (ARTICLE 4) and national transposition law 1. Specific occupational requirements in the framework Directive 2. Specific occupational requirements in national law 3. National law regarding religious freedom V. Reasonable accommodation for disabled persons (ARTICLE 5) and national law 1. Reasonable accommodation in the framework Directive 2. Reasonable accommodation in national law 3. Law regarding the rights of disabled persons VI. Positive action in the framework Directive (ARTICLE 7) and national transposition law 1. Positive action in the framework Directive 2. Positive action in national law 3. Law regarding the rights of disabled persons VII. Minimal requirements in the framework Directive (ARTICLE 8) and national transposition law 1. Minimal requirements in the framework Directive 2. „Aggravating circumstances” in national law  „building trust in human rights” VIII. Means of appeal and defence of rights in the framework Directive (ARTICLE 9) and national transposition law 1. „Judicial and administrative procedures” 2. National law and judicial and administrative procedures 3. The capacity to stand the proceedings in the framework Directive 4. The capacity to stand the proceedings in national law 5. Statutes of limitation in the framework Directive 5 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA 6. Statutes of limitation in the national law IX. The burden of proof in the framework Directive (ARTICLE 10) and national transposition law 1. The burden of proof in the framework Directive 2. The burden of proof in national law X. Victimisation in the framework – Directive (ARTICLE 11) and national transposition law 1. Victimization in the framework Directive 2. Victimisation in national law XI. Bodies Promoting Equality of Treatment under European Directives 1. Bodies promoting equality - Directive 2000/43/EC XI. bis National Council for Combating Discrimination and fulfilling the institutional independence standards under Directive 2000/43/EC 1. Establishment of the National Council for Combating Discrimination 2. European Union Council Decisions regarding Romania’s accession process and institutions of combating discrimination 3. Criticism of the European Commission regarding the transposition of the acquis in the field of non-discrimination and NCCD’s independence 4. The process of transposition of the acquis in 2006 and ensuring the independence of the National Council for Combating Discrimination 5. Modification of NCCD’s status in 2006 6. The point of view of the European Commission on the amendments adopted by Law no. 324/2006 by the Romanian Parliament and NCCD’s independence status 7. Modification of NCCD’s powers regarding notifications on legislative measures under the remuneration policy 8. Judgment of the Constitutional Court on NCCD’s capacity regarding discrimination stemming from law 9. Clarification of NCCD’s status regarding breaching the principle of separation of state powers and the nature of “extraordinary court” 10. Restatement of NCCD’s constitutional status 11. Conclusions XII. Dialogul cu organizaţiile neguvernamentale (ARTICOLUL 14) şi legea naţională de transpunere 1. Dialogul cu organizaţiile neguvernamentale în Directiva cadru 2. Consultarea organizaţiilor neguvernamentale şi legea naţională XII. Dialogue with non-governmental organizations (ARTICLE 14) and national transposition law 1. Dialogue with non-governmental organizations in the framework Directive 2. Consultation of non-governmental organizations and the national law  „protecţie efectivă a drepturilor omului” XIII. Sanctions in the framework Directive (ARTICLE 17) and national transposition law 1. „Sanctions” in the framework Directive 2. Sanctions stipulated by national law CHAPTER II: COMPLAINTS AND FINDINGS OF DISCRIMINATION ON GROUNDS OF CRITERIA UNDER DIRECTIVE 2000/78/EC I. Complaints filed to NCCD under national anti-discrimination law II. Complaints filed to NCCD on grounds of religion, convictions, disability, age, sexual orientation III. Solutions of admitting complaints on grounds of religion, convictions, disability, age, sexual orientation VI. Fields in which discrimination was exhibited in cases ascertained by NCCD V. Discrimination forms in cases ascertained by NCCD 6 CONSILIUL NAŢIONAL PENTRU COMBATEREA DISCRIMINĂRII VII. Sanctions applied in discrimination cases ascertained by NCCD CHAPTER III: JCASE-LAW ASCERTAINING DISCRIMINATION ON GROUNDS OF CRITERIA UNDER DIRECTIVE 2000/78/EC I. Case-law ascertaining discrimination under the scope of the national transposition law of Directive 2000/78/EC 1. Discrimination in the field of labour on grounds of religion or convictions 2. Discrimination in the field of labour on grounds of disability 3. Discrimination in the field of labour on grounds of age 4. Discrimination in the field of labour on grounds of sexual orientation II. Case-law ascertaining discrimination beyond Directive 2000/78/EC under the national law 1. Discrimination in the access to goods, services, facilities, personal dignity on grounds of religion or convictions 2. Discrimination in the access to goods, services, facilities, personal dignity on grounds of disability 3. Discrimination in the access to goods, services, facilities, personal dignity on grounds of age 4. Discrimination in the access to goods, services, facilities, personal dignity on grounds of sexual orientation CHAPTER IV: CONCEPTS CONSTRUED IN NCCD’S CASE-LAW UNDER THE SCOPE OF DIRECTIVE 2000/78/EC I. Article 2, par. 2 (lett. a and b) of Directive 2000/78/EC Transposition of the concept of direct and indirect discrimination. Prohibition of dismissal. Interpretation of concept. The concept of direct or indirect discrimination. The causality link between the forbidden criterion and differentiated treatment. II. Article 2 par. 3 of Directive 2000/78/EC Transposition of the concept of harassment as a form of discrimination. Interpretation of concept.  „building trust in human rights” III. Article 2 par. 4 of Directive 2000/78/EC. Transposition of the concept order to discriminate (order or rule to discriminate). Interpretation of concept. IV. Article 3 of Directive 2000/78/EC Scope. Difference between chronical disease and DISABILITY. Medical data. Scope. Difference between chronical disease and DISABILITY. Absence of medical data. 7 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA Scope. The capacity of employer. Difference between recruitment policy and personal opinions. SEXUAL ORIENTATION. Scope. The capacity of priest and RELIGIOUS CULT. The difference between labour relationship and exclusion for not respecting the statute of the cult. Non-jurisdiction. Observance of holidays and rest days in labour relationships. RELIGION. V. Article 4 of Directive 2000/78/EC Transposition of the concept of specific occupational requirements. Interpretation of concept. VI. Article 5 of Directive 2000/78/EC Transposition of the concept of reasonable accommodation. Interpretation of concept. Reduction of working hours. Modification of work tasks. Adaptation of work space. Supplementing examining time. Examination commission. VII. Article 7 of Directive 2000/78/EC. Positive action and specific measures. Granting of benefits when establishing retirement allowance. DISABILITY. VIII. Article 9 of Directive 2000/78/EC The capacity to stand the proceedings in discrimination cases. Defence of rights. Interpretation. IX. Article 10 of Directive 2000/78/EC Burden of proof. Interpretation of concept. Reference points in the case-law of the European Court of Justice. X. Article 11 of Directive 2000/78/EC Victimisation. Interpretation of concept. XI. Article 13 of Directive 2000/78/EC NCCD’s ability to issue points of view, opinions and recommendations. Interpretation. NCCD’s ability to issue recommendations. Legal force. Consequences. CHAPTER V: PREVENTION OF DISCRIMINATION FORMS UNDER DIRECTIVE 2000/78/EC I. Policy of prevention of all discrimination forms 1. The national plan and strategy implementing measures to prevent and combat discrimination (2002—2013) 2. Programs to prevent discrimination under the criteria provided by Directive 2000/78/EC II. Actions of collaboration with non-governmental organizations in the non-discrimination field  „protecţie efectivă a drepturilor omului” 1. Actions of public consultation with no