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„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

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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”.