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nment Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination, published in the Official Gazette of Romania, Part I, no. 626 of 20 July 2006 stipulates expressly that it transposes the provisions of Council Directive 2000/43/EC implementing the principle of equal treatment between persons, irrespective of racial or ethnical origin, published in the Official Journal of the European Communities (OJEC) no. L180 of 19 July 2000 and the provisions of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, published in the Official Journal of the European Communities (OJEC) no. L303 of 2 December 2000. 5. Modification of NCCD’s status in 2006 11.5.1. In order to transpose the acquis communautaire and consequently to eliminate constant criticism from the European Commission, the European Commission against Racism and Intolerance, the Advisory Committee of the Framework Convention for the Protection of National Minorities and from other international institutions, the Romanian legislator regulated the institutional aspects advised and aligned the National Council for Combating Discrimination, as regards its status, to international standards.13 11.5.2. Thus, pursuant to amendments brought by Law no. 324/2006, the National Council for Combating Discrimination is the national authority that investigates and contraventionally sanctions discrimination acts or deeds, autonomous, with legal personality, under the Parliament’s control and at the same time a guarantor of the observance and 12 See Idem, pag. 19 “The Romanian authorities should demonstrate, at all levels, that the country applies a zero- tolerance policy on racism against Roma or against any other minority or group and that this policy is effectively implemented”. 13 Directive of the Council of the European Union no. 43/2000, Recommendation of the European Commission against Racism and Intolerance no. 2 and Recommendation no. 7, Resolution of UN’s General Assembly no. 48/134 of December 1993, „The Paris Principles” regarding measures for establishing national institutions of human rights.  „protecţie efectivă a drepturilor omului” enforcement of the non-discrimination principle, according to internal legislation in force and the international documents to which Romania is a party14. 11.5.3. The Council is responsible for the enforcement and control of observance of legal provisions in its field of activity, as well as for the harmonization of provisions of laws or administrative acts that infringe the non-discrimination principle. 15 11.5.4. The Council elaborates and applies public policies in the field of non- discrimination. In this regard, the Council consults with public authorities, non-governmental organizations, trade unions and other legal entities which pursue to protect human rights or have a legitimate interest in combating discrimination.16 11.5.5. In exercising its powers, the National Council for Combating Discrimination operates independently, without having its activity restricted or influenced by other institutions or public authorities17. In order to combat discrimination deeds, the National 28 CONSILIUL NAŢIONAL PENTRU COMBATEREA DISCRIMINĂRII Council for Combating Discrimination exercises its powers in the following fields: prevention of discrimination deeds; mediation of discrimination deeds; investigation, ascertaining and sanctioning of discrimination deeds; monitoring of discrimination cases; offering specialized assistance to the victims of discrimination.18 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 11.6.1. Following the analysis of amendments brought by Law no. 324/2006, in the Communication of the European Commission of 26 September 2006, included in the Monitoring Report regarding the situation of preparedness of Bulgaria and Romania for accession to the European Union, chapter Political Criterion, point 2, „Other issues which requested a subsequent progress in May 2006”, The European Commission mentions expressly: „The law on preventing and combating all forms of discrimination was amended in order to comply with the standards of the European Union regarding the independence of the National Council for Combating Discrimination” 19. 7. Modification of NCCD’s powers regarding notifications on legislative measures under the remuneration policy 11.7.1. Through Emergency Ordinance no. 75 of 11 June 2008 on establishing measures to settle certain financial aspects in the system of justice, art. 19 of G.O. no. 137/2000, republished was amended. 11.7.2. According to art. V of Government Emergency Ordinance no. 75/2008: 14 See art. 16 of Law no. 324/2006 amending and supplementing Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination, published in the Official Gazette of Romania, Part I, no. 626 of 20 July 2006. 15 See art. 18 par. 1 of Law no. 324/2006. 16 See art. 18 par. 2 of Law no. 324/2006. 17 See art. 17 of Law no. 324/2006. 18 See art. 19 par. 1 of Law no. 324/2006. 19 See COMMUNICATION FROM THE COMMISSION, Monitoring report on the state of preparedness for EU membership of Bulgaria and Romania, Brussels, 26/09/2006, COM (2006), 2. OTHER ISSUES WHICH NEEDED FURTHER PROGRESS IN MAY 2006; 2.1 Political criteria, Protection and integration of minorities; pag. 40: “(…) The law on preventing and sanctioning all forms of discrimination has been amended to meet EU standards related to the independence of the National Council for Combating Discrimination”.  „building trust in human rights” „In Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination, republished in the Official Gazette of Romania, Part I, no. 99 of 8 February 2007, after par. (2) of article 19 shall be introduced a new paragraph (3) with the following content: (3) The notifications regarding legislative measures adopted under the remuneration policy of budgetary personnel do not fall under the jurisdiction of the National Council for Combating Discrimination.” 29 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA 11.7.3. Through law no. 76 of 1 April 2009, published in the Official Gazette no. 231 of 8 April 2009, approving Emergency Ordinance no. 75/2008, art. V of GEO no. 75/2008 was repealed. 8. Judgment of the Constitutional Court on NCCD’s capacity regarding discrimination stemming from law 11.8.1. Through Ruling of 14 April 2008, delivered in File no. 7604/99/2007, the Court of Appeal Iasi - Section of contentious and fiscal matters notified the Constitutional Court with the exception of unconstitutionality regarding the provisions of art. 20 of Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination. The exception was stated by the Ministry of Justice on the occasion of settling the appeal filed against Civil Judgment no. 16/CA of 10 January 2008, delivered by Iasi Tribunal in File no. 7.604/99/2007, by which Iasi Tribunal, Iasi Court of Appeal and Ministry of Justice were forced to pay salary entitlements resulting from wage differences ascertained through Decision no. 151 of 21 June 2007 of the National Council for Combating Discrimination. 11.8.2. Through judgment no. 997 of 7 October 2008, published in the Official Gazette no. 774 of 18.11.2008, the Constitutional Court admitted the unconstitutionality exception stated by the Ministry of Justice settling that „(…) the provisions of art. 20 par. 3 of Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination are unconstitutional to the extent they are interpreted as granting to the National Council for Combating Discrimination the jurisdiction within its jurisdictional activity of cancelling or refusing to apply certain official laws, considering them discriminatory and replacing them with norms generated through judicial activity or with provisions contained in other laws”. 11.8.3. The Constitutional Court set down some aspects, among which: “The Court finds that, in order to fulfill its role of guarantor of the observance and enforcement of the non-discrimination principle, the National Council for Combating Discrimination is called to also watch the way in which this principle is observed within laws. In this regard, this body may ascertain the existence of discriminatory legal provisions and can express its opinion regarding the harmonization of provisions within laws or administrative acts with the non- discrimination principle. Are relevant here the outcomes of such opinions. Thus, if it was admitted that by way of the jurisdictional control based on art. 20 par. (3) of Government Ordinance no. 137/2000, the National Council for Combating Discrimination is able to ascertain the existence of discriminatory situations which stem directly from the content of legal provisions, the Council’s decision would result in ending the application of such provisions and even in the application by analogy of other provisions, which would not refer to the person or social group who are discriminated. In such a circumstance, is questioned the legitimacy of this body of interfering with the legislative power through eliminating the application of certain laws and establishing the application of others, but also with the  „protecţie efectivă a drepturilor omului” jurisdiction of the Constitutional Court, which fulfills the role of negative legislator when it finds the lack of compliance between the provisions of a law or ordinance and constitutional provisions, under art. 16 relating to the non-discrimination principle. Although in light of the constitutional provisions such an interpretation cannot be accepted, as the role of the National Council for Combating Discrimination is rather limited to the possibility of ascertaining the existence of discrimination in the content of certain laws and to delivering recommendations or notifying the authorities competent to amend those laws, it is however noticed, as set down above that in practice, art. 20 par. (3) of Government Ordinance no. 137/2000 generated unconstitutional effects, by which the principle of separation of state powers was breached, to this contributing the equivocal wording of the provisions laid down in Section VI of Government Ordinance no. 137/2000. For these reasons, the Court ascertains that the provisions of art. 20 par. (3) of Government Ordinance no. 137/2000 are unconstitutional to the extent they are interpreted as granting to the National Council for Combating Discrimination the competence that, within 30 CONSILIUL NAŢIONAL PENTRU COMBATEREA DISCRIMINĂRII its jurisdictional activity, it may repeal the text of certain discriminatory laws or even replace this text with provisions contained in other laws”. 9. Clarification of NCCD’s status regarding breaching the principle of separation of state powers and the nature of “extraordinary court” 11.9.1. The most significant clarification of the legal nature of the National Council for Combating Discrimination was released in 2008 by the Constitutional Court of Romania. Following an exception of unconstitutionality of the provisions of art. 16- 25 of G.O. no. 137/2000, republished, through Judgment of the Constitutional Court of Romania no. 1.096 of 15 October 2008, published in the Official Gazette no. 795 of 27 November 2008, the Constitutional Court ruled with on the legal nature of NCCD as regards the observance of constitutional provisions. The Constitutional Court settled among others the following: „The National Council for Combating Discrimination is an administrative body with jurisdictional prerogatives, which enjoys the necessary independence to fulfill the administrative-jurisdictional act and observes the constitutional provisions laid down in art. 124 regarding the administration of justice and in art. 126 par. (5) which forbids the setting up of extraordinary courts”. 20 „The Council exercises its prerogatives independently, free from any influence by any body or public authority, by observing the provisions of art. 1 par. (4) of the Constitution which enshrines the principle of separation and balance of state powers within the constitutional democracy”.21 10. Restatement of NCCD’s constitutional status 11.10.1. Through Judgment no. 444 of 31 March 200922, the Constitutional Court settled that in this case „the National Council for Combating Discrimination is an administrative body with jurisdictional prerogatives, which enjoys the necessary independence to fulfill the