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ion in 2000-2005 regarding the National Council for Combating Discrimination and the transposition of the acquis. 1 See Accession Partnership with Romania (1999, revised February 2000) - political criteria/human rights; 4.2 Medium term: Political criteria: ”(…) implement measures aimed at fighting discrimination (including within the public administration)”. 2 See the European Journal of the European Communities, L44/82, 14.2.2002, Council Decission on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with Romania (2002), Political criteria, Human rights and minority protection, “(…) Establish and ensure the due functioning of institutions to prevent and combat all forms of discrimination (…)”. 3 See the European Journal of the European Communities, L145/26, 12.6.2003, Council Decission on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with Romania; “Continue alignment of the acquis on anti-discrimination and ensure its proper implementation by making the Romanian National Council for Combating Discrimination fully operational”.  „building trust in human rights” The Periodical Report of the European Commission in 2000: „significant efforts are required in order to transpose the acquis”. 11.3.2. The European Commission was pleased about the adoption of Government Ordinance no. 137/2000, setting down in its Report from 2000 that „there has been a significant progress in September, through the adoption by the Government of the legislation regarding the prohibition of discrimination by civil servants, individuals, private companies, 25 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA undertakings on grounds of nationality, race, ethnic origin, age, gender and sexual orientation. Severe sanctions were stipulated for breaching the provisions in question. This initiative is a very positive step, but a secondary legislation and review of institutional aspects will be necessary before the Ordinance provisions become applicable. It is therefore too early to assess the effectiveness of this measure”4. In the same regard, it is shown that „the implementation of this legislation which, inter alia pursues to transpose the provisions of the EC Directive, pursuant to art. 13 of the Treaty, as regards discrimination on grounds of general or ethnical origin will require significant efforts and continuous attention”.5 The 2001 Periodical Report of the European Commission: „non-operational legislation and the National Council for Combating Discrimination has not been established”. 11.3.3. The European Commission reaffirms the importance of the adoption of Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination, considering that broadly, the law is in line with Directive 78/2000 and with the recent recommendations of the European Commission against Racism and Intolerance, but it finds that „the Ordinance is non-operational because secondary legislation has not been adopted and the National Council for Combating Discrimination has not been established”6. The 2002 Periodical Report of the European Commission: „NCCD is not an independent institution”. 11.3.4. In 2002, the European Commission expressly states its preoccupation for the status of the National Council for Combating Discrimination, as established through G.O. no. 137/2000 and consequently through G.D. no. 1194/2001 and G.D. no. 1514/2002. The Report of the Commission underlines that „it is necessary to amend legislation in order to comply with the acquis pursuant to art. 13 of the EC Treaty and with regard to NCCD it states that „in practice it is not an independent institution since it is administratively subordinated to the Government”.7 4 See Regular Report from the Commission on Romania’s Progress towards accession; 8 November 2000; pagina 21, “In September 2000, one important development was the introduction, by government ordinance, of new legislation prohibiting discrimination by public employees, individuals, private companies and economic operators on the grounds of nationality, race, ethnicity, age, gender, or sexual orientation. Heavy fines have been established for violating its provisions. This initiative is a very positive step – but both further secondary legislation and revised institutional arrangements will be necessary before the provisions contained in the ordinance can be applied. It therefore remains too early to assess the effectiveness of this measure”. 5 See Idem; page. 59 “The implementation of this legislation (which, inter alia,aims to transpose the provisions of the EC Directive, based on Art. 13 of the Treaty, relative to discrimination on the grounds of race or ethnic origin), will require substantial effort and continuous attention”. 6 See 2001 Regular Report from the Commission on Romania’s Progress towards accession, 13.11.2001; page 22 “(…) The ordinance covers rights defined in relevant international agreements and is broadly in line with the Council Directive on Implementing the Principle of Equal Treatment between Persons Irrespective of their Racial and Ethnic Origin as well as recent recommendations of the European Commission against Racism and Intolerance. However the ordinance is not yet operational since the necessary secondary legislation has not been adopted and the implementing body, the National Council for Preventing and Combating Discrimination, has not yet been established. Despite these delays, this legislation should, when implemented, represent a positive development by providing legal protection against discrimination on various grounds, including ethnic origin, language, religion and sexual orientation”. 7 See 2002 Regular Report from the Commission on Romania’s Progress towards accession, 9.10.2002; page 29; ”However, amendments to the law will be needed in order to fully conform with the acquis based on Article 13 of the EC Treaty, notably with regard to indirect discrimination and the burden of proof. (…) The decision setting up the Council states that it will operate independently of any institution or public authority. However, in practice it is not an independent body as it remains administratively subordinated to the Government” şi pagina 85 “The National Council for Combating Discrimination was established in August 2002. These are positive developments although amendments to the law will be needed in order to fully conform with the acquis”.  „protecţie efectivă a drepturilor omului” The 2003 Periodical Report of the European Commission: „NCCD remains subordinated to the Government (…) the capacity to act independently is limited”. 11.3.5. The 2003 Commission Report is pleased about the significant progress of the National Council for Combating Discrimination „in its first year of activity and the ruling of sanctions in discrimination cases, which were an important expression of the Council’s authority”. The Commission further underlines that „the new legal provisions have clarified the responsibilities of the Council, but a few legislative aspects remain unsolved. The legal framework must be revised in order to clarify the role of the Council in relation to public institutions”. The issue of the lack of independence is re-stated by the European Commission and „as it noted in the previous Periodical Report „the fact that NCCD remains administratively subordinated to the Government seems to limit its capacity to act independently”. 8. In the Report, the European Commission states that „it should be noted that among the candidate countries, Romania is the first that has an operational equality institution”.9 The 2004 Periodical Report of the European Commission: „NCCD’s capacity should 26 CONSILIUL NAŢIONAL PENTRU COMBATEREA DISCRIMINĂRII be strengthened”. 11.3.6. The European Commission analyzes the activity of preventing and combating discrimination carried out by NCCD, stating, among others that „the institution has proven its decision-making capacity: courts confirming the existence of discrimination in disputed solutions, although the sanctions applied were annulled in a few cases”. „The new legislative provisions adopted in February 2004 represented a progress in the transposition of the acquis in the field of non-discrimination, but some elements of an efficient anti-discrimination mechanism, such as the reversal of the burden of proof or statistical data for proving indirect discrimination are still missing”. Also, the European Commission underlines that „the capacity of the National Council for Combating Discrimination should be strengthened”10 (see in this regard Annex 5). The 2005 Periodical Report of the European Commission: „NCCD’s independence must be guaranteed”. 11.3.7. The European Commission underlines that in the field of non-discrimination, legislation still requires completions regarding the reversal of the burden of proof, in order to settle an efficient mechanism in Romania and draw attention particularly on strengthening the administrative capacity of the National Council for Combating Discrimination, on providing financing for the institution, transparency and especially „guaranteeing independence”11. 8 See 2003 Regular Report from the Commission on Romania’s Progress towards accession, page 22 “The National Council for Combating Discrimination has made significant progress during its first year of activity and the issuing of decisions sanctioning cases of discrimination has been an important demonstration of its authority. New legal provisions have clarified the responsibilities of the National Council. However, a number of the gaps in the legislative framework raised in last year’s Regular Report have not been resolved (i.e. indirect discrimination and the burden of proof). The legal framework also needs to be revised in order to clarify the role of the National Council vis-à-vis other public institutions. As noted in last year’s Regular Report, the fact that the National Council remains administratively subordinated to the government appears to limit its capacity to act independently (…)”. 9 See Idem, page 79; “It should be noted that among the acceding and candidate countries Romania is the first to have a functioning equality body”. 10 See 2004 Regular Report from the Commission on Romania’s Progress towards accession, 6.10.2004, pag.23 si 95 ”The National Council for Combating Discrimination (NCCD) has continued its policy to prevent discriminatory actions. New legal provisions adopted in February 2004 represented further progress with the transposition of the anti-discrimination acquis. However, despite several legislative improvements, some elements of an efficient antidiscrimination mechanism, such as the shift of the burden of proof or acceptance of statistical data as evidence of indirect discrimination, are still lacking. Nevertheless, the NCCD proved its capacity to get support for its decisions: court decisions have usually confirmed the existence of discrimination in the cases contested - although the fines applied by NCCD have been invalidated in several cases. Notwithstanding the progress made, the capacity of the National Council for Combating Discrimination could also be enhanced. 11 See 2005 Regular Report from the Commission on Romania’s Progress towards accession, pag. 54, 55; ”Legislative alignment in the field of anti-discrimination is still to be completed especially as regards the shift of the burden of proof in order to have in place an efficient anti-discrimination mechanism in Romania. The overall administrative capacity of the National Council for Combating Discrimination should be enhanced, including funding, transparency and general awareness of its activities, and its independence should be guaranteed”.  „building trust in human rights” Particularly, the European Commission draws attention that „the Romanian authorities should demonstrate, at all levels, that they apply a zero tolerance policy on racism against the Roma or other minorities or groups and that this policy is effectively implemented”.12 4. The process of transposition of the acquis in 2006 and ensuring the independence of the National Council for Combating Discrimination 27 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA 11.4.1. Following successive amendments brought to Government Ordinance no. 137/2000 through Law no. 48/2002, Government Ordinance no. 77/2003 and through Law no. 27/2004, the minimum standards stipulated in the European Directives were partly transposed in the Romanian legislation however, as the European Commission stated in its reports, there are pending disagreements between the internal law and the provisions of the acquis communautaire, i.e. of Council Directives 2000/78/EC and 2000/43/EC and for this reason, anti-discrimination legislation still requires amendments (Periodical Reports of the European Commission, 2001-2006). 11.4.2. Considering the eventual risk that at the date of accession of Romania to the European Union on 1st January 2007, the non-discrimination legislation would not be in compliance with the acquis, on 14 July 2006 was adopted Law no. 324/2006, an organic law, by which the standards in the non-discrimination field were significantly amended, particularly as regards the status of the national institution appointed to monitor and implement relevant legislation, the National Council for Combating Discrimination. 11.4.3. Law no. 324/2006 amending and supplementing Gover