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„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

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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 administrative – jurisdictional act”, „thus being observed the constitutional provisions laid down in art. 126 par. (5) which forbids the setting up of extraordinary courts”. 20 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. 21 Idem 22 Judgment no. 444 of 31 March 2009, published in the Official Gazette no. 331 of 19 May 2009.