Journal of legal studies 1-2/2014

THE LAW APPLICABLE TO THE CONCLUSION …

1

„Petre Andrei” University from Ias i Faculty of Law

LEGAL RESEARCH CENTRE

JOURNAL OF LEGAL STUDIES

JURNALUL DE STUDII JURIDICE

Year IX No. 1-2/2014

JOURNAL OF LEGAL STUDIES is published twice a year under the patronage of the

LEGAL RESEARCH CENTRE Lumen, 2014

Nadia Cerasela ANIŢEI, Roxana-Elena LAZĂR

2

Jurnalul de Studii Juridice Journal of Legal Studies Revue d'études juridiques ISSN: 1841-6195 e-ISSN: 2067-8509 Published on Behalf of "Petre Andrei" University, Faculty of Law 9th Year, Nr. 1-2/2014 Publication frequency: twice a year: No. 1-2/June and Nr. 3-4/December Bilingual Edition: English and Romanian Contact data: Address: Facultatea de Drept, Universitatea „Petre Andrei" din Iaşi, str. Grigore Ghica Vodă, nr. 13, et. 2, Cod 700400 E-mail: [email protected] Website: jsl.upa.ro Telephone: 0735217732; 0232210333 Fax: 0232210026 Web-site page designed and administered by Răzvan Costin Information about the Publishing House Lumen Publishing House, Iaşi CP 3, OP 780, Iaşi E-mail: [email protected] Telephone no.: 0332141134 Manager of Lumen Publishing House: Ph.D. Antonio Sandu e-mail: [email protected] Copyright © The Journal of Legal Studies • All Rights Reserved • The selected articles cannot be given for publication to other journals The journal is financed by "Petre Andrei" University of Iaşi Price per volume: 10 euro Subscription fee: 15 euro/year Circulation: 200 copies

mailto:[email protected]


3

Editorial Board EXECUTIVE EDITORIAL BOARD

Executive Editor: Antonie - Cristian Bocancea, Dean of the Faculty of Law, “Petre Andrei” University of Iaşi Editor-in-Chief: Nadia Cerasela Aniţei, Professor PhD at the Faculty of Law, “Dunărea de Jos” University Associate Editor: Roxana Alina Petraru, Lecturer at the Faculty of Law, “Petre Andrei” University of Iaşi ADVISORY EDITORIAL BOARD

George Antoniu, Professor Ph. D, „Andrei Rădulescu” Institute of Law, Romanian Academy, Romania Sergiu Brânză, Professor Ph. D, Faculty of Law, Moldova State University, Republic of Moldova Antonie - Cristian Bocancea, Professor Ph. D & Dean of the Faculty of Law, “Petre Andrei” University of Iaşi, Romania Alexandru Burian, Professor Ph. D, Faculty of Law, Moldova State University, Republic of Moldova Emanuele Calò, Dirigente at Notaries National and International Board, Rome, Italy Javier Carrascosa González, Professor Ph. D, University of Murcia, Spain Alfonso- Luis Calvo Caravaca, Professor Ph. D, University Carlos III, Madrid, Spain Seldağ Ceylan, Professor Ph.D, Faculty of Law, University „Ghazi” Ankara, Turkey Tudorel Dima, Ph. D, Member of Romanian Academy, Romania Valeriu M. Ciucă, Judge at the High Court of EU, Luxembourg; Professor Ph. D, Faculty of Law, „Alexandru Ioan Cuza” University of Iaşi, Romania Olga Dyuzheva, Professor Ph. D, Faculty of Law, Moscow State University, Russia Călina Jugastru, Professor Ph. D & Scientific Chancellor, Faculty of Law „Simion Bărnuţiu”, „Lucian Blaga” University of Sibiu, Romania Ştefan Mircea Minea, Professor Ph. D & Chairman of Public Law Department, Faculty of Law, „Babeş Bolyai” University of Cluj, Romania Victor Moraru, Professor Ph. D, Faculty of Law, Moldova State University, Republic of Moldova Frank S. Ravitch, Professor Ph. D, College of Law, Michigan State University, S.U.A. Liviu Pop, Professor Ph. D & Chairman of Civil Law Department, Faculty of Law, „Babeş Bolyai”University of Cluj, Romania Tudorel Toader, Judge at the Constitutional Court of Romania; Professor Ph. D, Faculty of Law, „Alexandru Ioan Cuza” University of Iaşi, Romania Doru Tompea, Professor Ph. D & President, “Petre Andrei” University of Iaşi, România Cătălin Turliuc, Professor Ph. D, Research Institute of History „A. D. Xenopol”, Romanian Academy, Romania Lynn D. Wardle, Professor Ph. D, „J. Reuben Clark” Law School, Brigham Young University, S.U.A. Sorin Bocancea, Associate Professor Ph. D, „Petre Andrei” University of Iaşi; President of „Petre Andrei” Foundation, Iaşi, Romania Nadia Cerasela Aniţei, Professor Ph. D, Faculty of Law, “Dunărea de Jos” University of Galaţi, Romania


4

Fulya Ilçin Gönenç, Associate Professor Ph. D, Faculty of Law, University „Marmara” of Istanbul, Turkey Dan Lupaşcu, Member of the Superior Council of Magistrates; Associate Professor Ph. D, Faculty of Law, University „Nicolae Titulescu” of Bucureşti, Romania Mihaela Laura Pamfil, Prosecuting Attorney of the Prosecuting Departament by Deta Court of Justice; Associate Professor, Faculty of Law, “Petre Andrei” University of Iaşi, Romania Vitalie Stati, Associate Professor Ph. D, Faculty of Law, Moldova State University Republic of Moldova Daniel Şandru, Professor Ph. D, Faculty of Politic and Administrative Sciences Department, „Petre Andrei” University of Iaşi, Romania Marius Balan, Assistant Professor Ph. D & Chancellor, Faculty of Law, „Alexandru Ioan Cuza” University of Iaşi, Romania Maria Dumitru, Assistant Professor Ph. D, Faculty of Law, „Petre Andrei” University of Iaşi, Romania Roxana Alina Petraru, Lecturer, Faculty of Law, “Petre Andrei” University of Iaşi, Romania Roxana Lazăr, Lecturer, Faculty of Law, “Petre Andrei” University of Iaşi, Romania Călina Andreea Munteanu, Lecturer, Faculty of Law, “Petre Andrei” University of Iaşi, Romania Iolanda Lungu, Lecturer, Faculty of Law, “Petre Andrei” University of Iaşi, Romania


5

Aims and Scope: Journal of Legal Studies, a professional academic journal, published twice a year, commits itself to promoting the academic communication about laws of Romania and other countries, covers all sorts of researches on legal history, law rules, legal culture, legal theories, legal systems, questions, debate and discussion about law from the experts and scholars all over the world. The Journal of Legal Studies is issued biannually: no.1-2 /June and no. 3-4 / December Bilingual Edition: English and Romanian Cover Design: Cristian Usurelu, “Lumen” Publishing House Copy Editor: Simona Ponea, “Lumen” Publishing House English version: ISSN: 1841-6195 English version: ISSN electronic: 2067-8509 The Journal of Legal Studies was included in the following international data bases: Index Copernicus, Ideas RePeC, Econpapers, Socionet. The Journal of Legal Studies is listed in B+ category under the number 981 by CNCSIS. The Romanian version of this Journal is available online, at jls.upa.ro The articled admitted for publication cannot be submitted to other publications.

Deadlines: The papers will be sent between: January 15 - April, 15 for issues no. 1-2/June; July 1 - October 15 for issues no. 3-4/December. The selection of the papers will be performed as soon as they have been received but no later than June 1 for issues no. 1 2/ June and November 1 for issues no. 3-4/ December. The papers will be sent to the e-mail address [email protected].

INSTRUCTIONS FOR CONTRIBUTORS General instructions: The articles must be written both in English and Romanian for the Romanian contributors. All articles must contain an abstract which needs to comply with the following requests: it must sum up concisely the content of the article; it must be written in English; it must not exceed 15-20 lines. The abstract must be followed by 5-10 English keywords. Content instructions: The article must be dense, well structured, and to represent a personal contribution of the author in the approached field, through the rejection or admission of previous expert opinions; it must contain, when the case needed, proposals of law bills; it must contain a set of conclusions and it must not exceed 15 pages. Drafting Conditions: The title: Garamond, 14, bold, centered capital letters. Authors / Co-authors: Name: Garamond, 12, italic, bold, on the right side at double line spacing from the title; First Name: Garamond, 12, italic, bold; After the name, an asterisk symbol with a footnote containing the author’s identification data: the academic degree, the academic title; institution Abstracts and key words: They must be written with Garamond, 11, italic, justified, double line spacing by the author’s name. The article: It must be written at single space line by the key words with Garamond, 12, justified, single space. When titles and subtitles requested they must be written in italics and be centereditura Bibliographical notes: They will be written in their proper order in between brackets without special characters in Garamond, 12, in accordance with the following example: (Filipescu, (year), : 15-25); (Filipescu, I., P.,. Filipescu, A., (year), : 15-25). We mention that the colons represent the publication year as in the following example: Considerăm că prin regim matrimonial înţelegem totalitatea normelor juridice, care reglementează relaţiile sociale stabilite între soţi, sau între unul sau ambii soţi, pe de o parte, şi terţe persoane, pe de altă parte, relaţii ce au drept obiect bunuri existente în momentul căsătoriei sau dobândite pe parcursul acesteia precum şi obligaţii contractate în legătură cu aceste bunuri sau în vederea îndeplinirii sarcinilor căsătoriei. (Dariescu, (2007), :37). We also mention that the titles of the books will not be translated from Romanian into English. Like wise, the Moldavian authors are requested to use the Latin alphabet for the bibliographical notes. The footnotes:They must be written without special characters in Garamond, 10. They will contain all the explanations, commentaries and definitions which the author considers compulsory for the proper understanding of the text. The bibliography:It must be grouped, where necessary, in the following sections: treatises, lectures, monographs; scientific articles; bodies of law; web pages. The bibliography must be written without special characters and in alphabetical order. E. g: Dariescu, N., C. Dariescu, C., Petraru, A., R., (2009), Dreptul familiei, Editura Lumen, Iasi, Romania. When journals, reviews or conference papers are



6

quoted, the authors will be grouped alphabetically as follows: Dariescu, N., C., (2010), Thoughts concerning the formal conditions needed for the contracting of marriage from the point of view of the stipulations in the new Civil Code in “Journal of Legal Studies”, Editura Lumen, Iasi, Romania. The article will be joined by a short presentation of the author which should highlight: the academic degree, the academic title, the employment information, the professional or research activity and also the mail address where he/ she will receive the journal.

The Romanian variant of the Journal of Legal Studies must observe the same drafting conditions, excepting the special characters in the text (the bibliography and the bibliographical notes will be written without special characters as well as in the English version). The titles of the articles must be written both in Romanian and in English. The abstract and the key words must be written only in English.


7

CONTENTS: Top highlights of the Journal of Legal Studies: I. Community Law. Comparative Law. European Law II. Romanian Law III. Law and Related Sciences IV. Legal Practice V. Book reviews and Editorial Signals SELECTION AND PUBLICATION: Advisory Editorial Board is represented by a select committee of editors (law experts and professionals from various countries) that will examine and review the submitted articles. The scientific committee of the journal shall pass all received manuscripts through a provisory selection. The papers shall be selected and blindly reviewed by at least two referees. The Journal of Legal Studies aligns itself to a strictly blind reviewing peer process, implying that the author’s and the reviewer’s names shall be mutually held back during evaluation process. Each paper goes through at least two peer reviews. The final editorial decision shall be made in 4 to 6 weeks from the submission date. The peer review verdict may be phrased either as “accepted”/ “accepted with minor amendments”/ “accepted with substantial amendments” or “rejected”. OUR TARGET PUBLIC: The Journal of Legal Studies is meant for scholars and other members of the international academic community (students, BAs, MAs, PhDs), practitioners and law experts who are interested in various fields of law and in cognate sciences.


8


9

SUMMARY

I. Comunity Law. Comparative Law. European Law

FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA) AND AGREEMENT WITH ROMANIA – A STEP IN THE FIGHT AGAINST INTERNATIONAL TAX EVASION ........................... 13

Nadia-Cerasela ANIŢEI Roxana-Elena LAZĂR

LEGISLATIVE POWER OF THE COUNCIL OF THE EUROPEAN UNION...................................................................... 21

Constantin MANOLACHE THE PRINCIPLE OF THE INTERNET NEUTRALITY AS A FREEDOM OF EXPRESSION AND THE RIGHT OF BEING INFORMED .................................................................................... 43

Angela MÎŢĂ - BACIU THE LAW APPLICABLE TO THE PROCEDURE FORM – COMPARISON BETWEEN THE ROMANIAN AND THE MOLDAVIAN LEGISLATION ..................................................... 55

Raluca-Oana ANDONE THE LEGAL STATUS OF THE ELECTED EMPLOYEES’ REPRESENTATIVES IN THE COMMUNITY NORMATIVE ACTS AND LEGISLATION OF THE REPUBLIC OF MOLDOVA ...................................................................................... 79

Eduard BOISTEANU Iulia DRUMEA

THE LOCAL PUBLIC ADMINISTRATION IN THE REPUBLIC OF MOLDOVA ........................................................... 91

Ana-Maria AMBROSĂ THE LEGALITY OF THE STATE AUTHORITY FROM THE VALUE JUDGEMENT TO THE CONSTITUTIONAL JUDGEMENT: SCIENTIFIC ARGUMENTATION ................. 115

Alexandru ARSENI


10

II. Romanian Law ELEMENTS OF ROMANIAN CONSTITUTIONAL HISTORY ....................................................................................... 133

Cristian BOCANCEA BRIEF CONSIDERATIONS ON THE NOTION OF INTEREST IN THE CONTEXT OF THE GOVERNMENT ORDINANCE NR.13/2011 ON THE LEGAL REMUNERATIVE AND PENALTY INTEREST ON PECUNIARY OBLIGATIONS ..... 155

Maria DUMITRU-NICA THE NEW ROMANIAN PENAL CODE IN THE EUROPEAN CONTEXT ..................................................................................... 163

Ionuţ-Alexandru TOADER


11

I. COMUNITY LAW. COMPARATIVE LAW. EUROPEAN LAW


12

Foreign Account Tax Compliance Act (FATCA) and Agreement with …

13

FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA) AND AGREEMENT WITH ROMANIA – A STEP IN THE FIGHT AGAINST INTERNATIONAL

TAX EVASION

Nadia-Cerasela ANIŢEI1 Roxana-Elena LAZĂR2

Abstract The study of the international tax evasion reveals a practice of setting up fictitious

entities, whose purpose is to provide large amounts of money through fraud. They perform by

means of dissimulative maneuvers and operational skills important profits while producing at

the same time big losses to trading counterparties who are not cautious enough.

International tax evasion is truly endangered by a new regulation - Agreement of

fulfilment of tax obligations on foreign accounts of US citizens (FATCA- Foreign Account

Tax Compliance Act).

The article aims to present both FATCA and FATCA bilateral Agreement

between Romania and the US.

Keywords: The US Foreign Account Tax Compliance Act, the fight against tax evasion,

FATCA bilateral Agreement between Romania and the US.

1 PhD University Professor, Faculty of Legal, Social and Political Sciences, Dunarea de Jos University, Galati, Romania, e-mail: [email protected] 2 PhD Associate Prof., Faculty of Law, Petre Andrei University Iasi, Romania,



14

1. Introductory notions about FATCA The pressure of the economic crisis on the US federal budget and

exponential growth of tax evasion abroad have led to the introduction in

October 2009 of a new draft bill in the US Senate, which aimed at

reducing tax evasion. By 2009 a similar program operated, established by

the IRS, but which proved unworkable. Thus, in 2001, UBS banking

group, registered in that program, agreed to pay 780 million dollars

penalties for hiding information regarding accounts of US citizens. The

inefficiency of the program and the estimates of the loss of about 100

billion dollars a year due to unpaid taxes were among the strongest

arguments for change. This is how FATCA (Foreign Account Tax Compliance

Act) appeared, enacted into law by US President on March 18, 20103.

FATCA (The US Foreign Account Tax Compliance Act) is a set of

legislative measures adopted in March 2010 by the United States of

America (USA) in order to prevent and reduce tax evasion generated by

the border activity of US residents.

Principles of FATCA are:

- non-resident financial institutions in the US are required to

identify and report annually to the US tax authorities,

automatically, specific information related to accounts opened by

US residents, foreign entities with substantial US ownership and

customers classified as recalcitrant;

- refusal to disclose specific information about US residents by

financial institutions non-resident in the US is punishable under

US law by applying a 30% withholding tax on any payment such

as interest, dividends, rents, premiums, annuities, compensations,

remunerations, fees and other annual or periodic fixed or

determinable gains, coming from the US. This rate is applicable if

the financial institutions non-resident in the US refuse to disclose

the identity and communicate information about their clients who

are US residents.

FATCA is linked to preventing and combating what is considered

to be unfair competition by creating private capital in a state, stored

afterwards outside the state of origin. Even legally obtained, it is

considered that this money is a source of evil for the economy where it

was produced, as it does not return to the production circuit of the state

3 http://www.arb.ro/aparitii-media/antifrauda.html


15

of origin, but is outsourced. To have a record of this money, USA

identified a necessary way from this point of view - FATCA.

In this context, FATCA legislative package requires non-US

financial institutions, under an intergovernmental agreement or

independently to provide the IRS information about customers who have

American citizenship or tax obligations to the US and relating to their

accounts on holder, addresses, balances or transactions carried out. Also,

if these people do not meet their tax obligations, financial institutions can

perform withholding for IRS

So, the agreement to fulfil tax obligations on foreign accounts of

US citizens lays the foundations for a genuine tax reform.

FATCA regulation must be understood in the context of the two

large-publicized cases in 20084, and of the extraordinary dimension of tax

evasion.

If the first case recalled targeted tax evasion through accounts at

LGT Bank in Liechtenstein owned by Germans, and by other Europeans;

secondly, placed on adverse positions USA and Swiss Bank, USA accusing

the Swiss bank of conspiracy as a result of causing a fraud on the US by

helping American residents hide their ownership of large sums of money

deposited in offshore accounts in Swiss banks.

In terms of the dimension of US tax evasion, US Senate, estimates

that the federal budget lost $ 100 billion dollars through tax evasion acts5.

The US regulation, which has a broad incidence - as it targets the

financial system as a whole - FATCA (Foreign Account Tax Compliance Act)

is the keystone of the Obama administration in the fight against tax

evasion practiced by opening accounts outside the US state, and also a

revolutionary moment for the international financial system. The target

group of this regulation is the natural and / or legal persons (in the sense

that the majority of shareholders / associates have American nationality

or citizenship) considered rich who have an American nationality or

citizenship, as appropriate, who keep their savings in accounts outside the

US. From the FATCA provisions, it is considered that rich people are

4 I., B., Grinberg. FATCA: an evolutionary moment for the international tax system, p. 7, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1996752 (accessed on 25/01/2013). 5 O.E.C.D. - Centre for tax policy, "Fighting tax evasion", available at http://www.oecd.org/ctp/fightingtaxevasion.htm (accessed on 02/09/2013).

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1996752

http://www.oecd.org/ctp/fightingtaxevasion.htm


16

those people who opened accounts outside the US that exceed the

threshold of $ 50,000.

FATCA requires a reporting obligation and a withholding tax

system at the rate of 30% of all payments from US for foreign financial

institutions that refuse to disclose the identity of their customers with tax

residence in the US. The tax regime can be avoided only if these financial

institutions enter into agreements with the US, under which they can

conduct identification of customers, American natural or legal persons,

reporting on them. Reporting covers both new customers and pre-existing

ones.

Since FATCA faced the opposition of other countries, motivated

by the fact that the disclosure of financial data on clients of financial

institutions comes in conflict with the obligation of confidentiality of data

on their customers, USA solved this problem by regulating two types of

bilateral government agreements, the models of which have already been

published. The first published model allows governments of states which

enter into agreement with FATCA to substitute their own financial

institutions, which are obliged to report to national governments, which

shall afterwards report to the US tax authorities; the second model

establishes an agreement of the foreign state to request its own financial

institutions to cooperate with US tax authorities. A statistical achieved in

this respect notes the preference for the model first mentioned6.

On September 12, 2012, they concluded the agreement required

between the US and the UK, and discussions were held with other fifty

states. The process is in final stages in countries like: France, Germany,

Italy, Spain, Japan, Switzerland (opted for the second option), Canada,

Denmark, Finland, Guernsey, Ireland, Isle of Man, Jersey, Mexico, the

Netherlands and Norway, plus Argentina, Australia, Belgium, Cayman

Islands, Cyprus, Estonia, Hungary, Israel, Korea, Liechtenstein, Malaysia,

Malta, New Zealand, Slovakia, Singapore and Sweden. Among the states

that have opted to sign is and Romania, along with Bermuda, Brazil,

British Virgin Islands, Chile, Czech Republic, Gibraltar, India, Lebanon,

Luxembourg, Russia, Seychelles, Saint Maarten, Slovenia and South

Africa.

6 Christians Allison, What you give and what you get: reciprocity under a Model 1 Intergovernmental Agreement on FATCA, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2292645 (accessed on 11.09.2013).



17

To this end, in August 2013 they launched FATCA portal for

registration of financial institutions which are required to make reports

under that act, including of financial institutions in the State which

concludes intergovernmental agreements with the US tax authorities

under FATCA. The establishment of an online account is conditioned by

the appointment of persons authorized by the financial institution to

make reports. The completion of data inserted on FATCA portal will be

made until January 1, 2014. Registration means receiving an identification

number after the date mentioned above.

The provisions of the Act on fulfilment of tax obligations on

foreign accounts of US citizens, as amended, set two deadlines for tax

withholding at a rate of 30% for incomes obtained from US: January 1,

2014 - for income from dividends and interest obtained by non-

participating foreign financial institutions, namely that do not conclude

the agreement for providing information with the Treasury and Tax

Authorities in the US, and January 1, 2015 for the other types of

payments.

FATCA intends to create a much better collaboration between

financial institutions globally. It involves both developed economies and

emerging economies. Although announced as a special event the entry

into force of FATCA regulations on January 1, 2014, was extended by six

months, at least until July 1, 2014.

2. FATCA bilateral Agreement between Romania and the US

In order to eliminate barriers to reporting and tax withholding

they suggest the conclusion by the State of residence of financial

institutions to which FATCA provisions are applied of a FATCA bilateral

agreement with the American tax authorities. In this respect, Romania has

initiated such an agreement to facilitate the reporting process by

Romanian financial institutions.

Financial institutions in Romania7 which are targeted by the

application of FATCA provisions are:

- credit institutions

- custodian institution

- investment entities

- insurance companies.

7 http://www.mfinante.ro/acordfatca.html?pagina=domenii


18

The term starting on which FATCA provisions are applied is July

1, 2014, and this is first term starting from which certain reporting

requirements (eg, collecting information related to US residents, foreign

entities with substantial US ownership and customers classified as

recalcitrant) become applicable.

Later, a new registration deadline was established on the IRS

website, namely May 5, 2014, being extended by 10 days to the original

date of April 25, 2014 date by which financial institutions non-resident in

the US could register on site on US Treasury as registered institutions that

align to FATCA provisions.

Romanian and American tax authorities have started the process

of negotiating the FATCA Agreement according to the standard Model

1A (with reciprocity).

Romania is on the list of countries with which the US authorities

consider they have reached a substantive agreement, even if the

Agreement was not actually signed as of April 2, 2014 and it will be

maintained on the list until December 31, 2014 provided that FATCA

Agreement is signed by the end of the year.

Regarding the registration deadline on the IRS website, in

Romania's case, given that it is included in the list of countries with which

the US authorities consider they have reached a substantive agreement,

the provisions of the Note of US Treasury no.1 from 2014 shall be taken

into account.

According to US Treasury Note no.2014 - 17 of April 2, 2014,

until the signing of a FATCA Agreement, Romanian resident financial

institutions are allowed to register on FATCA registration website, as

registered deemed-compliant FFI. With this status, financial institutions

will make all reports according to the provisions of standard Model 1A

(with reciprocity). Also, they will be allowed to confirm this status to

withholding agents and shall not be required to obtain a registration

number (˝GIIN˝) before the date of January 1, 2015.

Conclusions Internationally, efforts to combat tax evasion take the form of

cooperation. One of the most common forms of combating international

tax evasion takes the form of codes. Unfortunately, all these codes are

only a sum of good intentions, being rather aspirational than operational.


19

A proposal in 2007 aimed at developing such a Code, under the

aegis of the United Nations8, which contained provisions on cooperation

in combating international tax evasion. The objectives are: assistance in

developing international rules applicable to all nations in preventing the

conduct of tax evasion deeds; identification of aggressive forms of tax

evasion, which is different from common forms of tax evasion; to provide

necessary support for civil society to prevent international tax evasion.

Given the global economic crisis that still persists, the fact the

national budgets are still subject to strong pressures, the commitments

signed to honour the new global regulations on taxes, there are enough

signs that FATCA will be implemented internationally.

FATCA analysis highlights the main objective pursued

consistently by still the first power of the world, USA, the erosion of bank

secrecy, besides ensuring an unprecedented fiscal transparency.

Americans’ attempt to explain the positive effects of FATCA explain even

the banking secrecy as one of the greatest evils in the world, considering it

a violation of universal human rights9. Thus, starting from the fact that the

UN Convention on Economic, Social and Cultural Rights recognizes and

guarantees the right to adequate living conditions - food, clothing and

housing (art. 11), the right to health insurance schemes, to drinking water

(art. 12) and the right to education (art. 13) - banking secrecy (not covered

by any international treaty or convention on human rights) and tax

evasion come in conflict with human rights when, due to them, state

governments are unable to meet the economic and minimalist rights and

demands.

8 M., McIntyre. United Nations Code of Conduct of Cooperation in Combating International Tax Evasion, Wayne State University Law School – Legal Studies Research Paper Seriesno. 08-12/2008, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1118805 (accessed on 04.09.2013). 9 S., Cohen. Does Swiss bank secrecy violate international human rights?, 2013, p. 4, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2297020 (accessed on 04.09.2013).




20

References:

I., B., Grinberg. FATCA: an evolutionary moment for the international tax

system, p. 7, available at


(accessed on 25/01/2013).

Christians Allison, What you give and what you get: reciprocity under a

Model 1 Intergovernmental Agreement on FATCA, available at


(accessed on 11/09/2013

M., McIntyre. United Nations Code of Conduct of Cooperation in Combating

International Tax Evasion, Wayne State University Law School –

Legal Studies Research Paper Series, no. available at 08-12/2008,


(accessed on 04.09.2013).

S., Cohen. Does Swiss bank secrecy violate international human rights?,

2013, p. 4, available at


(accessed on 04/09/2013).

Web pages

O.E.C.D. - Centre for tax policy, "Fighting tax evasion", available at

http://www.oecd.org/ctp/fightingtaxevasion.htm (accessed on

02/09/2013).

http://www.arb.ro/aparitii-media/antifrauda.html

http://www.mfinante.ro/acordfatca.html?pagina=domenii





http://www.oecd.org/ctp/fightingtaxevasion.htm

http://www.arb.ro/aparitii-media/antifrauda.html

http://www.mfinante.ro/acordfatca.html?pagina=domenii


21

LEGISLATIVE POWER OF THE COUNCIL OF THE EUROPEAN UNION

Constantin MANOLACHE1

Abstract: The definition of the classic version of state powers, established by Locke and

Montesquieu, is well known: the legislative, the executive and the judicial. The European

Union is not yet a state entity and does not have a constitution, in which the problem of

realization of these powers to be quite complex. The literature states that the fundamental

institutions of the European Union would build on the three powers: the European Parliament

and the Council of the European Union would provide the legislative, the European

Commission would apply to the executive and the Court of Justice of the European Union

would be the judiciary. The Lisbon Treaty, however, avoid driving to highlight these powers of

European leadership and administration and its texts states that there are "functions" of these

institutions and not "powers." For instance, in the content of the Lisbon Treaty, the Council of

the European Union and the European Parliament have a "legislative function" in European

institutional leadership and do not represent a „legislative power”. This article tries to show

that the "legislative function" of the Council of the European Union is, in fact, a true

"legislative power", because in this institution there are organizational structures, procedures

and legal instruments for implementing this legislative power.

Keywords: power, legislative, Council of the European Union, co-decision, European operating

rules, voting rules, ordinary legislative procedure.

1 Professor PhD, Faculty of Law, “Petre Andrei” University from Iaşi, [email protected]

Constantin MANOLACHE

22

Although the Council of the European Union2 is the main

European institution having a policy making character, it manifests

legislative power effects in organization and operation, sharing them with

the European Parliament. But why and how the Council manifests

legislative power? To approach this issue the following hypotheses can be

taken into consideration: the institutional structure of the Council allows

for asserting its legislative character; the Council has proper legislative

activities and precise tools for asserting its legislative power.

1. Organizational foundations of the Council of the European Union in asserting its legislative power

The Council of the European Union (EU), usually referred to as

‘the Council’, is a European institution. Council has the status of

legislative body, being in fact the European Union legislature together

with European Parliament. In most cases, the Council legislates under the

proposals submitted to the European Commission. However, the Council

may request the Commission to submit all proposals for its own needs.

The Council of the European Union3 is the fundamental European

intergovernmental institution of decision which meets representatives of

the Governments of the member states, at ministerial level and with

professional skills in particular fields. Thus, each member state

participates in the preparation of work of the Council and in the process

of making decisions by Ministers of the member states in meetings and

Board meetings. „The Council is generally regarded as an

intergovernmental institution, making it the focus of those who regard the

member states as being in ultimate control of the integration process.”4

2 The literature uses the term abbreviated to "Council", thereby understanding the European institution "The Council of the European Union". Specifically, after the entry into force of the Maastricht Treaty (adopted on 7 February 1992 and entered into force on 11 November 1993), the term "Council" was called "the Council of the European Union", a name taken by the Lisbon Treaty, which entered into force on 1 December 2009. 3 Council headquarters are in Brussels, Justus Lipsius building, its meetings are taking place several times per month (April, June and October meetings held in Luxembourg). Formal positions of the Council are published through press after the meetings known as "conclusions". 4 Thomas Christiansen, The Council of Ministers. Facilitating interaction and developing actorness in the EU, în Jeremy Richardson, European Union. Power and policy-making, Routledge, London, 2006, p. 148.


23

This reality leads to understanding what is „common” within the

European Union and what is „national interest” for each member state.

But what is the legislative power of the Council of the European

Union and which are its organizational foundations for a real affirmation

of that power? Regarding the concept of "legislative power" the literature

offers many explanations from historical, political and legal point of view.

In the Social Contract, Rousseau portrays a respectful exception of

sovereignty: the legislature is "in all respects an extraordinary man in the

state (...) by his genius," and its strength it comes from "his great soul (...)

real miracle to prove his mission."5 The transfer of legislative powers in

favor of the European Union breaks the "monopoly of general interest"

of the national legislature.

Speaking of the "legislator" of the European Union, this is not a

form of state government. Far from any spirit of provocation, the

affirmation of "legislator" of the European Union reflects primarily the

consolidation of the community legal order and a system of separation of

powers.6 The articulation of a legal and institutional order within the

Union sits the profile of the European legislation. The identification of

the legislature of the European Union represents an original relation

between the law and the European citizen;7 the law has the role of

"directive” and "regulatory"8 and the European citizen, bearer of

sovereignty, does not preclude the achievement of institutional and legal

order of the Union. In this case, the articulation of these orders is the

"legislator" of the European Union as a complex legal actor.9

European Union Council is the representative institution of the

member states, the place where they discuss, negotiate and resolve

important issues concerning European realities, based on democratic

forms and methods of management.10 The Council is invested with

political decision in relation to the other European institutions, especially

5 J.-J. Rousseau, Du Contrat social, chapitre VII du livre II, in Œuvres complètes, Bibliothèque de la Pléiade, p. 241. 6 Thomas Schmitz, Le peuple européen et son rôle lors d’un acte constituant dans l’Union européenne, RDP n° 6, p. 1709-1742. 7 François Saint-Bonnet, Loi, in Denis Allan, Stéphane Rials (dir.), Dictionnaire de la culture juridique, Paris, PUF, 2003, pp. 962-964. 8 Simone Goyard-Fabre, Loi, in Philippe Raynaud, Stéphane Rials (dir.), Dictionnaire de philosophie politique, Paris, PUF, 2003, p. 420-421. 9 Béligh Nabli, La figure du „législateur” de l'Union européenne, in Revue française de droit constitutionnel, 4/ 2007 (n° 72), p. 2. 10 http://europa.eu/about-eu/institutions-bodies/council-eu/index_fr.htm

http://europa.eu/about-eu/institutions-bodies/council-eu/index_fr.htm


24

the European Parliament. But between politics and law are mutual

interactions. "Formal side of politics is revealed as rigorous law.

Considered the foundation of the social body, the law is a concentrated

expression of the policy. By law and policy, the man tries to reduce

uncertainty about the future, and the rule of law, seen as an expression of

a policy group that seeks to introduce some type of appropriate relations

that correspond to a horizon of political values."11 Thus, the politics

correlates with the law in order to put in action political and social values

in a human society.

A robust approach to the legislative power of the European Union

is required for understanding the separation of powers within the

European Union.12 The "legislator" of the European Union is not a

fiction. "European law" is the product of the agreement of the wills of the

partial legislative bodies, together forming the complex legislative body of

the European Union. Also, the identification of the European legislator

should be discovered in the relations between member states and the

European Union. The willingness of member states contributes to the

formation of the will of the European Union that expresses its original

legislation.

A "formal" approach to the European legislative power involves

theoretically the question: who is the actor of the legal acts? This question

is echoing the problem of the separation of powers within the European

Union. Historically, the principle of separation of powers is closely linked

to the emergence of modern constitutionalism and has favored the state

model framework. There is an institutional particularism of the European

Union. It is a sui generis system that is not based on the classical scheme of

separation of powers as defined by Locke and Montesquieu. However, the

separation of powers can be seen as a concept of theoretical analysis or as

an ideal type of distribution mechanisms of the legislative function of the

European Union. On this point, the exercise of the legislative power of

the European Union by a complex organ confirms the dissociation

between function and legislative body.

The increased workload of the Council makes the exercise of the

management of legislative power more complex and difficult, „and the

Council is obliged to act from time to time like a second legislative

11 Cristian Pîrvulescu, Politici şi instituţii politice, Editura Trei, Bucureşti, 2000, p. 19. 12 Guy Braibant, Qui fait la loi ?, în Pouvoirs, n° 64,1993, p. 45-46.


25

chamber rather than a ministerial directorate.”13 For the sake of functional

simplification, the need to establish a Legislative Council was discussed in

the framework of the European constitutional debate. For example, the

Convention on the Future of Europe proposed to entrust the legislative

function of the European Union to a single Council formation: the

"Legislative Council." The proposal of the Convention revolved around

the idea that any legislative work should be conducted in a specific

Council Membership, because the European Union states results in a

demonstration of their wills in the procedures for the development and

adoption of Community legislation. The willingness of member states is at

the heart of the Community legal order. The member states can be seen in

the exercise of the legislative power through the participation of

representatives of states in the Council of the European Union. The

Council of Ministers is an institutional framework laid out in the

expression of the legislative power of the States. However, the Council of

Ministers may claim to be the co-author of legal community instruments

and the basic co-performer of this function.

The willingness of member states is fundamental in structuring the

Community legal order. The essence of European integration is driven by

an intergovernmental logic. Also, the participation of state bodies in the

development of primary and secondary community law is a complex

activity of the member states of the European Union.14 In this sense, the

"participation" of the member state to the formation of Union law is

primarily a political project. The Council of the European Union is

intended to ensure the representation of member states. He is also a co-

holder institution of the legislative power of the European Union, and co-

author of Community legal acts.

In conclusion, the identification of the profile of the Council as

the European legislator improves the legal institutional architecture of the

European Union. The consolidation of the principle of separation of

powers has a fundamental symbolic value, a very important step in the

democratization of the European Union. This movement carries a

problematic European legal normative order. The institutional balance of

the European Union is linked to the hierarchy of norms within the

13 Andreas Maurer, The Legislative Powers and Impact of the European Parliament, JCMS 2003, volum 41, nr. 2, p. 227. 14 Alain. Pellet, Les fondements juridiques internationaux du droit communautaire, RCDAE, 1994, vol. 5, t. II, p. 270-271.


26

Community legal order. The issue of the distinction between legislative

action and executive action is the requirement of division of powers in

"an European community of law." In the interest of transparency, it is

therefore important to determine the best legal procedures, in terms of

legitimacy and efficiency of the legislative power assigned to the various

bodies of the European Union. The idea of combining the concept of the

legislator in the European Union is not neutral. The initiative is part of the

rebuilding movement of constitutional law. In this sense, it can discuss

about the Treaty of Lisbon on par. 1 of Art. 16, that defines the powers of

the Council in the following terms: „The Council shall, jointly with the

European Parliament, exercise legislative and budgetary functions. It shall

carry out policy-making and coordinating functions as laid down in the

Treaties.„ Regarding the members of the European Union, Art. 16 para. 2

of the Lisbon Treaty contains clear statements: „The Council shall consist

of a representative of each Member State at ministerial level, who may

commit the government of the Member State in question and cast its

vote.„

The Council is organized around four organizational structures:

the Council configurations, the Presidency, the Permanent

Representatives Committee (COREPER) and the General Secretariat.15

The Council configurations are very important for the functioning

of the Council of the European Union16, according to the subject matter

dealt with. Each configuration consists of a ministry representative from

each member state, who is empowered to commit his government. Under

the Lisbon Treaty, Art. 16 para. 6, the most important formats are two in

number: the General Affairs Council (GAC) and the Foreign Affairs

Council (FAC).

The General Affairs Council ensures the work of the different

Council configurations. „The Council shall meet in different

configurations, the list of which shall be adopted in accordance with

Article 236 of the Treaty on the Functioning of the European Union. The

General Affairs Council shall ensure consistency in the work of the

different Council configurations. It shall prepare and ensure the follow-up

15 Council Decision 2009/937/EU of 1 December 2009 adopting the Council's Rules of Procedure. 16 It is recommended do not make confusion between the Council of the European Union, the European Council (which is an EU institution attended by the Heads of State and Government, about four times a year to discuss the political priorities of the Union) and the Council of Europe (which is neither an EU body).

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32009D0937:EN:NOT


27

to meetings of the European Council, in liaison with the President of the

European Council and the Commission. The Foreign Affairs Council shall

elaborate the Union's external action on the basis of strategic guidelines

laid down by the European Council and ensure that the Union's action is

consistent.” During the sessions of the General Affairs Council (GAC),

the Council examines the folders (dossiers) referring to several EU

policies, such as negotiations on EU enlargement, preparation of multi-

annual budgetary perspective Union or institutional and administrative

tasks. It coordinates the preparation of European Council meetings and

actions taken after those meetings. The Council also acts as the

coordinator of work in different policy areas carried out by other Council

configurations and examines records entrusted by the European Council.

The article 3 of the 9th Declaration, annexed to the Treaty of Lisbon,

better clarify this topic: „The General Affairs Council shall ensure

consistency and continuity in the work of the different Council

configurations in the framework of multiannual programmes in

cooperation with the Commission. The member states holding the

Presidency shall take all necessary measures for the organisation and

smooth operation of the Council's work, with the assistance of the

General Secretariat of the Council.”

Foreign Affairs Council develops the Union's external action, in

accordance with the strategic guidelines established by the European

Council and ensures consistency of European Union action. Foreign

Affairs Council is chaired by the High Representative of the European

Union for Foreign Affairs and Security Policy.

With the entry into force of the Lisbon Treaty on 1 December

2009, the Council meets and operates in ten different formats

(configurations) covering all EU policies, depending on the topics

discussed:17 General Affairs; Foreign Affairs; Economic and Financial

Affairs; Justice and Home Affairs; Employment, Social Policy, Health and

Consumer Affairs; Competitiveness (Internal Market, Industry, Research

and Space); Transport, Telecommunications and Energy; Agriculture and

Fisheries; Environment; Education, Youth, Culture and Sport. It is for

each member state to determine the way in which it is represented in the

Council. Several Ministers may participate as full members of the same

Council configuration. The Foreign Affairs Council is responsible for:

17 In the ‘90s, there were 22 Council configurations, their number was reduced to 16 in June 2000 and to 9 in June 2002.


28

Common Foreign and Security Policy (CFSP); European Security and

Defence Policy (ESDP); Justice and Internal Affairs; Common

Commercial Policy (CCP); development cooperation and humanitarian

aid.

In security and defense matters, for example, national

governments exercise independent control over these issues, but they

cooperate together to develop a Common Security and Defence Policy.

The Council is the main part of this governmental cooperation. The

European Union does not have any army. However, to enable it to

respond more quickly to international conflicts and natural disasters, some

EU member states providing troops to a rapid reaction force, whose role

is limited to humanitarian action, disaster relief and peacekeeping.

Justice and home affairs (JHA) has a strong influence on the lives

of European citizens and represents the legal policy according to the

Lisbon Treaty. Consequently, the measures in these areas adopted at the

EU and national level are subject to review by the Court of Justice in

Luxembourg. In the field of justice and home affairs there are specialized

bodies. Policies related to the area of freedom, security and justice are

implemented by the member states and the EU institutions, such as:

FRONTEX, EUROPOL, EUROJUST, the Fundamental Rights Agency

of the European Union, the European Asylum Support Office, the

European Monitoring Centre for Drugs, the European Police College.

The Council of Justice and Home Affairs meets approximately

every two months, with the ministers of justice and interior ministers to

discuss the development and implementation of cooperation activities and

common policies in this area. European citizens should also have equal

access to justice across Europe. Ministers of justice and interior are

working together to ensure the borders’order of the EU and the fighting

against terrorism and organized crime.

The Presidency of the Council of the EU is a very important

European institutional structure. The Foreign Affairs council is chaired by

the High Representative of the Union for Foreign Affairs and Security

Policy. The Presidency of the other configurations of the Council is held

by groups of three member states alternating every 18 months. Each

member of the group holds the presidency on a rotating basis, except in

http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/ai0009_en.htm

http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/ai0009_en.htm

http://www.consilium.europa.eu/council/presidency-websites.aspx?lang=en


29

relation to foreign affairs, for a period of six months.18 During that

semester, the Presidency chairs the meetings at all levels and develops

negotiations and guidelines for adoption of decisions by the Council. To

promote the continuity of the work Council, the Presidency cooperates

closely in groups of three presidents (Troika), the last, the present, the

future.

The Presidency is the driving force in carrying out the Council's

work. The group of three member states and the High Representative that

are to hold the Presidency of the Council configurations must present a

draft programme of Council activities. The draft must then be approved

by the General Affairs Council. The Presidency must also draw up the

provisional agenda for the meetings scheduled during its term of office.

The Presidency also ensures that the rules of procedure are

properly applied and that discussions are conducted in an official manner.

It can also, if necessary, restrict the participation numbers, determine the

duration of discussions and request common positions and written

contributions. It can also represent the Council before the European

Parliament.

The main responsibilities are set out in the Rules of the Council19

containing 28 articles, accompanied by 6 annexes, such as: Council

convened its own initiative or the initiative of the Commission or one of

its members; setting the agenda for the meetings; decision to a vote and

drafting the minutes; mediation in debate; identify acceptable

compromise.

The COREPER (Committee of Permanent Representatives),

committees and working parties are main organizational structures of the

Council. The COREPER is responsible for preparing the work of the

Council and for carrying out the tasks assigned to it by the Council. It is

chaired by the representative of the member state which holds the

Presidency of the Council. It ensures the consistency of the EU's policies

and actions and sees to it that the following principles and rules are

observed: the principles of legality, subsidiarity, proportionality and

providing reasons for acts; the rules establishing the powers of Union

18 Order of Council Presidencies was established by the Council Decision of 1 January 2007. Romania will have the EU presidency in the period of July to December 2019. Official Journal of the European Union (L 1/11 (4.1.2007). 19 http://europa.eu/legislation_summaries/institutional_affairs/institutions_bodies_and_agencies/l14576_ro.htm


30

institutions and bodies; the budgetary provisions; the rules on procedure,

transparency and the quality of drafting (the Council's legal service is

responsible for checking the drafting quality of legislative acts).

The COREPER operates under art. 240 par. 1 T.F.U.E.: „A

committee consisting of the Permanent Representatives of the

Governments of the member states shall be responsible for preparing the

work of the Council and for carrying out the tasks assigned to it by the

latter. The Committee may adopt procedural decisions in cases provided

for in the Council's Rules of Procedure.” The COREPER must examine

in advance all the items on the agenda for a Council meeting. It must

endeavor to reach an agreement, which is then submitted to the Council

for adoption. If an agreement is reached, the item is included in the

agenda for approval by the Council without discussion. The COREPER

may set up committees or working groups to carry out preparatory tasks

or studies.

The COREPER meets Permanent Representatives of the Member

States. The need for consistency of decisions depends on the involvement

of this committee in different folders. All the work of the Council are

prepared and coordinated by the Committee of Permanent

Representatives (COREPER), made up of Member States' ambassadors to

the European Union, being considered permanent representatives of

member states working in Brussels and their assistants. The work of this

committee is prepared by more than 150 committees and working groups

composed of delegates from member states. All these committees and

working groups resolve technical issues and send working files to the

Committee of Permanent Representatives (COREPER), ensuring

consistency of work and resolving technical issues and politics before the

files are transmitted to the Council. Among them, some committees have

specific role to coordinate and provide expertise in a particular field, such

as, the Economic and Financial Committee, the Political and Security

Committee (responsible for monitoring the international situation, the

common foreign and security policy, the political oversight and strategic

leadership in crisis management operations) and the Steering Committee

tasked with preparing police and judicial cooperation in criminal matters.

The COREPER is the central mechanism of normative functioning of the

European Union, its activity being focused on representation the interests

of member states. The COREPER is the pivotal body of the European

Union which has an advisory role in decision-making. This committee


31

represents the established place of dialogue between member states

Ambassadors, the support and preparing basic structure for the meetings

of the Council of Ministers, exerting a preventive control over its agenda.

Competent in all matters dealt with by the European institutions,

including foreign policy issues and the common security and defence

policy, the COREPER plays an important role in coordinating missions

and crisis management operations of the European Union.

The General Secretariat assists in organizing, coordinating,

monitoring and ensuring the coherence of the Council's work, as well as

in implementing its programme of activities. It is placed under the

responsibility of the Secretary-General, appointed by the Council acting

by qualified majority. The Secretary-General also draws up the draft

estimate of the Council's expenditure and administers its appropriations.

In conclusion, the Council of the European Union has a genuine

legislative power, supported and assisted by the important and relevant

organizational foundations. The Community method places the

responsibility for the conduct of European policy holders of three

different instances legitimacy, but acting jointly in decision-making: the

European Commission, the EU Council and the European Parliament.

The institutional triangle is based on a triple legitimacy: the general

community interest, the member states and the European citizens. The

relations between these three institutions have evolved in the treaties,

especially with the voting procedure in the Council of the EU and the

extent powers of the European Parliament. This institutional triangle

should not overshadow the advisory bodies such as the Economic and

Social Committee and the Committee of the Regions. In addition, since

the entry into force of the Lisbon Treaty, national parliaments are

formally involved in the decision process. The normative function is

assumed by the EU Council and the European Parliament on a proposal

from the Commission. The Council of the EU fulfills both a legislative

power shared with the Parliament, and an executive power shared with

the Commission.

2. Legislative activities of the Council of European Union The rules of procedures concern the functioning and organisation

of the Council of the EU, which is granted the power of self-regulation by

Article 240(3) of the Treaty on the Functioning of the European Union:

„The Council shall act by a simple majority regarding procedural matters

http://www.consilium.europa.eu/homepage.aspx?lang=en


32

and for the adoption of its Rules of Procedure.” The European Union

Council's legislative activities include: operating rules, voting rules, the

ordinary legislative procedure (co-decision), special legislative procedures

(consultation and approval), documents prepared and publicity.

Operating rules show the functioning of the Council. In this case,

the Council meets when convened by its President. The dates for

meetings are made known by the Presidency seven months before the

beginning of its term of office. The Council has its seat in Brussels, but

holds its meetings in Luxembourg in April, June and October. Meetings

can be held elsewhere by a unanimous decision of the Council or of the

COREPER.

The provisional agenda for each meeting is drawn up by the

President. The final agenda is adopted by the Council at the beginning of

the meeting. It is divided into two parts: „legislative deliberations” and

„non-legislative activities.” The quorum must be checked before a vote is

taken. It requires the presence of a majority of members.

The Council votes on the initiative of its President. Voting is in

the order laid down by the Council acting unanimously, beginning with

the member who, according to that order, follows the member holding

the office of President. Acts of the Council on urgent matters may be

adopted by a written vote. It is for the Council or the COREPER to

decide unanimously to use that procedure. The President may also

propose if all the members of the Council agree.

Voting rules are clearly defined in the organization and

functioning of the Council. The Council shall adopt decisions by the vote

of the ministers of the member states. There are three types of voting,

according to the provisions of the Lisbon Treaty on this topic: simple

majority (for procedural decisions), qualified majority (a weighted voting

system based on the number of inhabitants of the member states, for the

adoption of various decisions on domestic economic affairs and trade)

and unanimity (foreign policy, defence, judicial and police cooperation,

and taxation) and constructive abstention. The Council shall meet in

public when it deliberates and votes on a legislative proposal or when

there is a general debate.20 Instead, the debates in areas without legislative

(foreign affairs), they are not public. Number of votes of each member

20 Public Works Council meetings can be followed in real time on the website: video.consilium.europa.eu. Also you can watch how a minister of a country expresses the position of that country in a European problem.


33

state is set out in the Treaties, stating where they need a simple majority,

qualified majority or unanimity.

In case of simple majority, the Council shall decide on the basis of a

proposal by the European Commission in cooperation with the European

Parliament, or by the consultation procedure (agriculture, judicial and

police cooperation, taxation) or co-decision (internal market). Thus, in

terms of the art. 238 par. 1 T.F.U.E., decision can be taken by simple

majority: „Where it is required to act by a simple majority, the Council

shall act by a majority of its component members.”

A qualified majority is achieved when the following conditions are

met: most member states give their consent (in some cases with a two-

thirds majority); at least 260 votes are cast in favor of the proposal, from a

total of 352 votes. In addition, each member state may require

confirmation that the votes in favor represent at least 62 % of the total

population of the European Union. If this criterion is not met, the

decision cannot be taken. The distribution of votes on member state is

following: Germany, France, Italy, United Kingdom (29 votes); Spain,

Poland (27 votes); Romania (14 votes); Netherlands (13 votes); Belgium,

Czech Republic, Greece, Hungary, Portugal (12 votes); Austria, Bulgaria,

Sweden (10 votes); Croatia, Denmark, Finland, Ireland, Lithuania,

Slovakia (7 votes); Cyprus, Estonia, Latvia, Luxembourg, Slovenia (4

votes); Malta (3 votes).

The par. 3 of Art. 16 of the Lisbon Treaty also provides: „The

Council shall act by a qualified majority except where the Treaties provide

otherwise.” But par. 4 of this article shows: „As from 1 November 2014, a

qualified majority shall be defined as at least 55 % of the members of the

Council, comprising at least fifteen of them and representing member

states comprising at least 65 % of the population of the Union. A

blocking minority must include at least four Council members, failing

which the qualified majority shall be deemed attained. The other

arrangements governing the qualified majority are laid down in Article

238(2) of the Treaty on the Functioning of the European Union.” In the

same spirit, par. 5 presents: „The transitional provisions relating to the

definition of the qualified majority which shall be applicable until 31

October 2014 and those which shall be applicable from 1 November 2014

to 31 March 2017 are laid down in the Protocol on transitional provisions.”

The continuous expansion of areas subject to qualified majority

voting and the procedure of co-decision calls into question the claim of


34

the member states to avail themselves of the quality of co-legislator.

Meanwhile, it is necessary to develop the field of application of qualified

majority in order to reduce the effect of the veto of the member state.

The majority rule forced the minister to negotiate on issues where

disagreement persists with other member states. The generalization of

qualified majority voting does not mean that the decision the Council

makes the economy of a consensus, but rather that the consensus occurs

otherwise.21 The qualified majority illustrates this concern of member

states, including the fact that the decision-making is closely related to

weighted voting system. In this context, „Where a vote is taken, any

member of the European Council may also act on behalf of not more

than one other member. Article 16(4) of the Treaty on European Union

and Article 238(2) of this Treaty shall apply to the European Council

when it is acting by a qualified majority. Where the European Council

decides by vote, its President and the President of the Commission shall

not take part in the vote. Abstentions by members present in person or

represented shall not prevent the adoption by the European Council of

acts which require unanimity.”

The unanimity rule provides precisely the negative power to the

member state to prevent the adoption of a measure by the Council. The

unanimous vote preserves the right to veto of individual member state.

The member state therefore has a power of co-decision to act when

unanimity in the Council is required. In the logic of diplomatic

conferences, the unanimity rule allows the member state to block the

adoption of the act and the government's position is necessarily taken into

account. The adoption of the act requires that the individual will of the

state did not object. In this sense, the voting procedure also protects the

sovereignty of the state.

The decision should be based on consensus, even in cases where a

qualified majority would be sufficient, when a member state considers its

interests particularly concerned by the measure at issue and in a

reasonable time. This "agreement or disagreement" has no legal force: it

does not endorse any international agreement or constitute an act sui

generis of the Council of Ministers. Where, in the case of decisions which

21 Jacqueline Dutheil de la Rochère, Fédéralisation de l’Europe ? Le problème de la clarification des compétences entre l’Union et les États, in O. Beaud (dir.), L’Europe en voie de Constitution, Pour un bilan critique des travaux de la Convention, Bruxelles, Bruylant, 2004, p. 319.


35

may be taken by a majority, the fundamental national interests of one or

more member states are involved, the governments strive to reach

compromise solutions.

In paragraph 4 of art. 42, Treaty of Lisbon requires unanimity

voting rule in security and defence policy, as follows: „Decisions relating

to the common security and defence policy, including those initiating a

mission as referred to in this Article, shall be adopted by the Council

acting unanimously on a proposal from the High Representative of the

Union for Foreign Affairs and Security Policy or an initiative from a

member state. The High Representative may propose the use of both

national resources and Union instruments, together with the Commission

where appropriate.”

For democratic principles of operation of the European Union,

the Treaty of Amsterdam introduced constructive abstention rule to allow a

member state to implement a decision, if national interests are not

affected. However, the Council votes through a qualified majority all

actions and common positions based on a common strategy. For

decisions with military or defence implications, these exceptions are not

implemented.22 Unanimity gives a veto to each member state, being

understood that „Abstentions by Members present in person or

represented shall not prevent the adoption by the Council of acts which

require unanimity.” (art. 238 para. 4 TFEU).

Since the Treaty of Lisbon, there is an ordinary legislative

procedure (co-decision) and two special legislative procedures

(consultation and approval). With the Lisbon Treaty, the co-decision

procedure has become the ordinary legislative procedure (Article 294

TFEU). The ordinary legislative procedure is adopted on a proposal from

the Commission of a regulation, directive or decision by a qualified majority

vote in the Council of the European Union and co-decision with the

European Parliament. Established by the Treaty of Maastricht (1992), the

co-decision procedure allows joint adoption by the Council and the

European Parliament, of a legislative proposal. The Treaty of Lisbon

makes this procedure the common law procedure, now renamed ordinary

legislative procedure. In this case, European Parliament becomes a real

co-legislator. The ordinary legislative procedure gives the same weight to

the European Parliament and the Council of the European Union on a

22 Franck Petiteville, La politique internationale de l’Union européenne, Paris, Les Presses de Sciences Po, 2006, pp. 48-49.


36

broad range of areas (transportation, economic governance, immigration,

energy, transport, environment, and consumer protection). The vast

majority of European laws are made jointly by the European Parliament

and the Council.

The proposal may be discussed in two readings in each institution;

in case of disagreement, a conciliation committee composed of

representatives of the Parliament and the Council meets to try to find a

compromise. There are three readings of the ordinary legislative procedure.

First reading: the Commission presents a legislative proposal to the

European Parliament and the Council simultaneously; the European

Parliament adopts amendments and submits them to the Council; the

Council agrees with the result of the first reading in Parliament: legislation

adopted. If not adopted, the second reading will follow: the Council does

not accept the Parliament's vote, but it adopted a common position. The

European Parliament confirms the amendments not included in the

common position. The Council agrees: legislation approved. Either the

Council rejects: the Conciliation Committee (25 members of the

Parliament and 25 members of the Council) shall be convened to establish

a link between the different positions. The European Parliament rejects

the common position: legislation rejected. Third reading: The Conciliation

Committee adopts a joint project based on the common position and the

European Parliament amendments on the second reading. If the Council

and the Parliament approve the law, the process is stopped. If the

Conciliation Committee fails a common project: the European Parliament

can definitively reject the proposal.

Special legislative procedure applies in specific cases provided by the

Treaties, and that is the European Parliament with the participation of the

Council of the European Union shall adopt regulations, directives or

decisions. In some cases, this procedure provides that the Council of the

European Union shall act unanimously and the role of Parliament is

limited to a consultation, or that its participation is not required. In the

consultation procedure (or single reading), the European Parliament gives

its opinion on the proposed legislation, which is then adopted by the

Council. This procedure is now applicable in a limited number of areas of

law, such as internal market and competition law, or to international

agreements within the framework of the European Union external action.

The approval applies in particular to the Accession Treaties, the

association agreements or other agreements with third countries. This


37

procedure is also used in the adoption of new legislation against

discrimination and this gives a veto to the European Parliament in case of

application of the general legal basis under Article 352 of the Treaty on

the functioning of the European Union (TFEU).

The European legislative function has two main components: a.)

the primary law (treaties which define the fundamental rules on which the

European Union is suing; they define the objectives of the EU, the rules

of functioning of the European institutions, follow the procedures for

making decisions and the relationships between the EU and the member

states); b) the secondary law (the European Union institutions may adopt

under Article 288 of the Treaty on the Functioning of the European

Union (TFEU), legislative acts such as regulations, directives, decisions or

recommendations or opinions, deriving from the principles and objectives

defined in the Treaties.) The task of adopting legal instruments

(regulations, directives or decisions) is assumed: the European Council

that drives the broad guidelines, the Commission takes the legislative

initiative, the Council of the EU decided to adopt legislation, the

European Parliament, co-legislator with the Council of the European

Union and even the Court of Justice case law which requires states.

The regulation is defined in Article 288, para. 2 TFEU: "A regulation

shall have general application. It shall be binding in its entirety and directly

applicable in all member states." Regulation is the most complete and

most effective measure in the range of instruments that are available to

the institutions of the Union. It is distinguished by two properties that are

quite exceptional in international law: its ability to create the same law

throughout the European Union regardless of frontiers, being equally

valid and in full in all member states. Thus it is forbidden for member

states to apply the provisions of incomplete regulation or to make a

selection among these; speaking about direct applicability in all member

states. This means an automatic validity in the EU and it is able to confer

rights and impose obligations on member states, their bodies and

individuals. The regulation shall have general application. Having a

normative nature, the regulation addresses to categories of persons

envisaged in a general terms. The author of a regulation may be the

European Parliament and the Council, the institution that follows a

special legislative procedure.

According to Article 288, para. 3 TFEU, „A directive shall be

binding, as to the result to be achieved, upon each member state to which


38

it is addressed, but shall leave to the national authorities the choice of

form and methods.” The Directive constitutes an instrument of indirect

legislation. It seeks to reconcile the search for the essential unity of EU

law and the preservation of the diversity of national circumstances. It is

addressed to the member states, which sets a result to be achieved but

that it leaves the choice of form and methods they adopt to achieve the

objectives of the Union in the framework of their internal legal order.

This way of linking the member states is a reflection of a desire to reduce

the EU interventions in national legal and administrative systems. The

member states may well take into account national specificities in

achieving the objectives of the Union. The provisions of a directive does

not automatically replace national legal rules, but require member states

the obligation to adapt their national law to the provisions of the

European Union.

The competence of member states, however, is doubly linked: on

the delay, the Directive sets determined national bodies for its

transcription time; as to modalities of work, the member states are in

principle free to choose the form and means of the transposition, but the

freedom of national authorities is not full, and the means and forms used

must be consistent with the established purposes. Transposition should

determine, sufficiently clear and precise, the rights and obligations arising

from the provisions of a directive, so that the citizen of the Union has the

opportunity to avail themselves or to oppose national courts.

In general, it is necessary to adopt binding national legal acts or to

cancel or modify existing regulations and administrative provisions. A

mere administrative practice is not enough, since it can by nature be

changed at it will be made by the authorities concerned and it does not

receive sufficient publicity. A flexibility recipient state depends on the

accuracy of the Directive. The institutions of the European Union may set

the result to be achieved so that it remains accurate to the member states

any leeway to make adjustments on the bottom. It must be recognized

that some directives are sometimes very detailed and contain substantive

regulation that leaves only the choice of a pure and simple transcription.

This trend is partly due to mistrust of the member states who fear that too

much freedom given to their partners creates distortions of competition.

The implementation of the guidelines is monitored by the Commission

and allows for the exercise of this control, by including a statement that

the member states must notify the Commission of the national measures


39

taken to implement the Directive. The author of a Directive may be the

European Parliament and the Council; for the Council, it needs a special

legislative procedure.

Article 288, para. 4 TFEU defines the decision in the following

terms: „A decision shall be binding in its entirety. A decision which

specifies those to whom it is addressed shall be binding only on them.”

The decision loses its individual character act exclusively, which allows

entering the category of making a much bigger acts than in the past,

including all acts adopted in the context of foreign policy. The Lisbon

Treaty allows the adoption of a decision either as a legislative act by the

European Parliament and the Council at the end of an ordinary legislative

procedure or after a special legislative procedure.

Under Article 288, para. 5 TFEU, „the recommendations and opinions

shall have no binding force.” This category of acts allows the EU

institutions to decide without legal obligation for the recipients: the

member states or the citizens of the Union. The recommendations

suggest recipients certain behavior without imposing their legal obligation.

Thus, when there is reason to fear that the adoption or amendment of a

legislative or administrative body in a member state is distorting the

conditions of competition, the Commission may recommend to the State

concerned the appropriate measures to prevent distortion and cause

(Article 117 TFEU). Notices are issued by the EU institutions when

appropriate to assess a situation or facts of the European Union or in the

member states. If these acts are not binding, it does not mean they are

devoid of any legal effect. When faced with distortions of competition

resulting from disparities in legislation, the Commission recommends that

member states the necessary measures, it may, if these recommendations

are not followed up, submit to the Council a proposal for a directive.

Other acts are to be taken into consideration. The practice also

revealed, alongside acts expressly referred to in Article 288 TFEU, a

number of so-called "unnamed" acts or "atypical", adopted by the

institutions of the Union, for various reasons beyond the scope defined by

that provision.

Four categories of acts deserve particular mention: a) Acts

concerning the internal life of institutions such as the internal rules; they

are not devoid of legal effect; b) Resolutions, action or communications

programs, that they are mainly intended to express intentions or policy

guidelines without being sources of rights and obligations; c) Public


40

statements or inter-institutional agreements of the European Parliament,

the Council and the Commission, which are often an expression of the

duty of loyal cooperation burden on institutions; d) statements in the

context of foreign policy and security, that they reflect a political line but

are not binding.

Publicity for the Council’s proceedings, publication and

notification of acts represents one of the most important activities of

information to the European citizens. The Council’s deliberations are

public when it makes a decision on a draft legislative act, hence the

distinction between the legislative and non-legislative parts of the agenda.

The Council must also meet in public for certain types of deliberations:

the public policy debate on the Council’s programme of activities; policy

debates held by the other Council configurations on their priorities; the

Commission's presentation of its five-year programme, its annual work

programme and its annual policy strategy; debates on important issues

affecting the interests of the EU and its citizens, if the Council or the

COREPER so decide by a qualified majority; certain non-legislative

proposals judged by the Presidency to be of sufficient importance as long

as the Council and the COREPER agree. Legislative acts adopted by the

Council must be published in the Official Journal (OJ), as must

international agreements concluded by the Union. For other types of acts,

it is for the Council or the COREPER to decide whether or not to

publish them.

In conclusion, the Council of the European Union has an

evolution of its role and its legislative power through treaties and

agreements between member states and other European institutions.

However there is a strong resistance of inter-governmentalism. Member

states are not ready to let their prerogatives of sovereignty to the

European Union. There is no state of the European Union therefore the

Council of the European Union cannot be the sole legislator; it needs the

support of the European Parliament. Indeed, the Parliament and the

Council are holders of bicameral legislature; and the Court of Justice of

the European Union (CJEU) embodies the judiciary. If the Council of the

European Union is the main European institution with the character of

policy making, in its organization and operation it manifests the legislative

power effects.


41

References:

Braibant, Guy Qui fait la loi ?, Pouvoirs, n° 64,1993.

Christiansen, Thomas, The Council of Ministers. Facilitating interaction

and developing actorness in the EU, în Jeremy Richardson, în

European Union. Power and policy-making, Routledge, London,

2006.

Council Decision 2009/937/EU of 1 December 2009 adopting the

Council's Rules of Procedure.

Dutheil de la Rochère, Jacqueline Fédéralisation de l’Europe ? Le

problème de la clarification des compétences entre l’Union et les

États, in O. Beaud (dir.), L’Europe en voie de Constitution, Pour un

bilan critique des travaux de la Convention, Bruxelles, Bruylant, 2004.

Goyard-Fabre, Simone Loi, in Philippe Raynaud, Stéphane Rials (dir.),

Dictionnaire de philosophie politique, Paris, PUF, 2003.

Maurer, Andreas The Legislative Powers and Impact of the European

Parliament, JCMS 2003, volum 41, nr. 2.

Nabli, Béligh La figure du „législateur” de l'Union européenne, in Revue

française de droit constitutionnel, 4/ 2007 (n° 72).

Pellet, Alain Les fondements juridiques internationaux du droit

communautaire, RCDAE, 1994, vol. 5, t. II.

Petiteville, Franck La politique internationale de l’Union européenne, Paris, Les

Presses de Sciences Po, 2006.

Pîrvulescu, Cristian Politici şi instituţii politice, Editura Trei, Bucureşti, 2000.

Rousseau, J.-J. Du Contrat social, chapitre VII du livre II, in Œuvres complètes,

Bibliothèque de la Pléiade.Saint-Bonnet, François Loi, in Denis

Allan, Stéphane Rials (dir.), Dictionnaire de la culture juridique,

Paris, PUF, 2003.

Schmitz, Thomas Le peuple européen et son rôle lors d’un acte

constituant dans l’Union européenne, RDP n° 6.


http://europa.eu/legislation_summaries/institutional_affairs/institutions

_bodies_and_agencies/l14576_ro.htm

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32009D0937:EN:NOT



42

The Principle of the Internet Neutrality as a Freedom of Expression and …

43

THE PRINCIPLE OF THE INTERNET NEUTRALITY AS A FREEDOM OF EXPRESSION

AND THE RIGHT OF BEING INFORMED

Angela MÎŢĂ - BACIU1

Abstract: Net Neutrality (also known as Network Neutrality or Internet neutrality) is all

about creating a neutral internet. The term supports the view that Internet traffic should be

treated equally.

The term – Net Neutrality -- has not been popular till early 2000s when advocates

of net neutrality and associated rules have raised concerns about the ability of broadband

providers to use their last mile infrastructure to block Internet applications and content (e.g.,

websites, services, protocols), even blocking out competitors.

The right to Internet access is closely linked to the right of freedom of speech which can

be seen to encompass freedom of expression too. Two key facets of the Internet are highlighted:

the content of the Internet and the infrastructure of the Internet.

The infrastructure is necessary in order to deliver the service to the masses but requires

extensive positive action. The content loaded onto the Internet however is seen as something that

should be available to all, with few or no restrictions; limits on content have been viewed as the

key breach of human rights, namely the right to freedom of speech that include the right to

receive information.

Keywords: Internet neutrality, freedom of expression, right to be informed.

1 Associate Professor at Faculty of Law – “Petre Andrei” University from Iasi, lawyer at Iasi Bar, judge at the Court of International Commercial Arbitration next to the Chamber of Commerce and Industry of Romania, http://arbitration.ccir.ro/, [email protected]

Angela MÎŢĂ - BACIU

44

The internet has become a necessity for the majority of people in

the developed countries. Either they connect from computer or mobile

device; the people are spending more and more time online and intend to

make the internet a new environment for social interaction, education,

activities organizer, increase and relaxation. Even more, because of its

importance in the day to day life, the internet arrived to even be part of

the human rights in certain countries like Estonia, France, Finland, Greece

and Spain.

The convention for the protection of Human Rights and the Fundamental Freedom2

Entitled the freedom of expression, Article 10 from the European

Convention of Human Rights guarantees the freedom of speech and

information: Every person has the right to freedom of expression. This right includes

the freedom of opinion and the freedom to receive and communicate information or ideas

without the public authorities’ involvement and without any frontiers.

The right to Internet Access Because of its importance in the day to day life, the Internet

arrived to be an important subject from the human right perspective. The

right to internet access is closing related to the freedom of speech, which

extensively amalgamates the freedom of opinion and the freedom to

receive or communicate information or ideas without the public

authorities’ involvement and without any frontiers.

Two key elements of the Internet are highlighted: the content and

the infrastructure. The infrastructure is needed to supply the service to the

masses and requires a positive action.

The rich content of the Internet is considered like something that

needs to be available to everybody, with little or no restrictions. The

access restrictions to Internet content was seen as a violation of freedom

of expression which involves also the access to information.

Although considered by many an environment where freedom of

expression is protected and guaranteed, in reality, the lack of legal norms

makes the internet to be a model of harmony and peace, based more on

2 Convenţia Europeană a Drepturilor Omului adoptată la Roma la 4 noiembrie 1950, amendată de Protocoalele nr. 11 şi 14, publicată pe site-ul Consiliului Europei la adresa http://www.echr.coe.int/


45

the Internet providers good will than the protection of national or

international organisations.

However, the vulnerability of the legal system mixed with the

companies’ to seek for commercial methods led to the need for discussion

of creating norms that protect the Internet and its users from the potential

obuse of some Internet suppliers.

This led some associations representing the Internet Users’

interests to request assurances from governments that the Internet

remains open for its users, the traffic cannot be discriminated against

regardless of the services they will run, regardless of physical devices to be

used. In other words, the associations requested that the Internet should

not be restricted by the governments or by Internet providers and be

guaranteed its neutrality by legislative rules.

Concept / Definition The terminology of neutrality of the Internet (or generally the

neutrality of the networks) is defined as being a principle that rules the

computer networks.

Even if sometimes this principle is the subject of intense debate,

its unanimously considered that it is characterised by the guaranteed of

equality of any content, site or platform.

Precisely, the Internet network is built in a certain way as any

point of connection (node), even if it is newly introduced, i twill have the

same rights as any other node from the network, without the possibility of

being discriminated in any way.

Ideally, the Internet should function exactly as a public service of

delivery. The delivery person needs to transport the package to the

destination, no matter if the delivery person likes or dislikes the content of

the package, no matter if the receiver is a company that the delivery

persons’ shows sympathy or not, no matter where there is no

discrimination regarding the expediter from the point of view of the

priority of the delivery time or the priority for other clients of the same

service.

In the simplest way possible, the Internet neutrality is in fact a

principle which suggests that all of the traffic of IT data needs to be

treated in an equal way.


46

Issue The Internet neutrality was not always in the publics’ attention.

The principle started to win greater ground in the moment when the

users’ rights started to shrink and in the moment when the Internet

suppliers started to look for new models to increase profitability.

In this way, the public opinion strongly criticized the Internet

providers who started to block certain information streams which were

intensely utilizing resources. In this way, they started to make it impossible

for the usage of certain applications which allowed a share of specific data

or permission for the transfer of particular multimedia files.

This decision was supported by the copywriting organizations

because many of these applications were transferring protected files.

Also, some of the Internet suppliers, especially the ones supplying

mobile phone services, started to block some applications like VOIP

(Voice Over Internet Protocol). Although the official explanation given by

the operators was that these protocols are using important resources in

the network, in reality, these were blocked because the VOIP suppliers

had lower tarriffs than the telephony services furnished by the Internet

supplier. However, the Internet suppliers can intervene in certain ways, as

it is permitted for the Internet suppliers to apply restrictions for the

clients regarding the bandwidth availability.

Another factor that contributed to the necessity of the

introduction of the Internet neutrality was the desire of winning clients

for the Internet suppliers.

The Internet suppliers considered that the large sites which

produce a high traffic ratio have to pay a certain amount to cover the

costs in regards to the development of the network to handle the greater

bandwidth requirements. In other words, the Internet suppliers are

demanding that these sites have to share their profits, claiming that the

Internet suppliers are the ones who are maintaining this communication

environment.

From the side of the web services providers, it existed an attempt

to breach the traffic equality because of their desire to have certain

advantages against the competition.

This way some companies who own important sites asked the

Internet suppliers to prioritize traffic towards them in exchange for

money. These users would observe that some sites would load up faster

and this would make them be regarded to a higher degree than slow


47

loading sites (to the detriment of these sites). Some of the suppliers went

even further by blocking certain sites, breaching the competition law.

Internet neutrality tries to establish a balance in the computer

bandwidth/networking environment, between the Internet suppliers (or

government) and the users. In other words they tried to prevent the

breaching of:

- freedom of expression (if the Internet provider prioritise or blocks

certain sites or the services, it becomes a censor for the Internet

users)

- innovations and competitions (promoting of certain sites by

blocking the competition)

- the consumers’ right of choice

Even if some countries realise the importance of legalising

Internet neutrality, there still exist a lack of reaction at the European level.

International Regulations In 2005, the USA government agency in charge of

communication, Federal Communication Commission (FCC) established

a series of principles meaning to assure the encouragement of the

expanding bandwidth requirements, maintain, the open promotion and

interconnectivity of the public Internet:3

- the users have the right to access any content they wish, as long as

the content is legal

- the users have the right to use run any application or legal services

- the users have the right to connect any legal communication

device which does not affect the network availability

- the users have the right to competition between the network

providers, service / application providers and content providers

In December 2010, the FCC added a new series of measures

regarding the transparency and clarified concerning the kinds of blocks

that are permitted for the fixed networks and mobile industry.4

The Norwegian Authority of the regulations for Post and

Telecommunications (NPT) together with the Internet suppliers and the

3 http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf 4http://ec.europa.eu/information_society/policy/ecomm/doc/library/communications_reports/netneutrality/comm- 19042011.pdf

http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf

http://ec.europa.eu/information_society/policy/ecomm/doc/library/communications_reports/netneutrality/comm-%2019042011.pdf



48

important organisations from the telecommunications industry elaborated

in 2009 a guide of principles which guarantees the Internet neutrality:5

1. The users have the right to an Internet connection with a

predefined capacity and quality. This involves:

a) the Internet capacity and quality needs to be clearly specified

b) if the physical connection is shared with other services then it

needs to be clarified how the capacity between the Internet and the other

services are going to be shared

2. The users have the right to an Internet connection which

permits the access to the services and applications desired. This involves:

a) users can transmit and receive any content they are wishing for

b) users can run any services or applications

c) users can connect any devices and can use any program that

does not damage the network

3. The users have the right to an Internet connection which does

not allow discrimination between applications, services, content, expediter

or receiver.

The Canadian Radio Television and Telecommunications

Commission – (CRTC) created a legislation regarding the Internet

neutrality through which it is required for the suppliers to offer

transparecy and is permitting the use of techniques of managing the traffic

as a last resort.6

Even in France, existed a legal project regarding the Internet

neutrality. The project was rejected,7 generating intense debates within the

community. However, we need to mention the French Constitutional

Court opinion that considers that: "taking into consideration the

importance of the online services for a democratic participation and for

the freedom of expression of ideas and opinions. The freedom of

expression involves the freedom to access this kind of services "(the

decision 2009-580 from 10th June 2009).8 In this way, Chile is considered9

5http://www.npt.no/ikbViewer/Content/109604/Guidelines%20for%20network%20neutrality.pdf 6 http://en.wikipedia.org/wiki/Network_neutrality_in_Canada 7 http://www.laquadrature.net/en/french-parliament-to-consider-net-neutrality-law 8 in limba engleza are forma "given the importance [of online services] for democratic participation and the expression of ideas and opinions, [freedom of expression] implies freedom to access such services" (decision 2009-580 of June 10th, 2009, par.12) 9 http://www.leychile.cl/Navegar?idNorma=1016570&idParte=&idVersion=2010-08-26

http://www.npt.no/ikbViewer/Content/109604/Guidelines%20for%20network%20neutrality.pdf



49

to be the first country to introduce in the legislation the principle of

Internet neutrality.10

The European Community Level Regulation The opening market of telecommunication, regarding the

competition, had a catalysing effect in a sector which used to be reserved

just for oligolopists. To complete this evolution, the European decisional

authorities adopted a legislation to synchronise with the technological

processes and the market demands.

This progress translated in legal plan through the generation of a

new regulatory system regarding electronic communications. The principal

objective is the consolidation of the competition facilitating the arrival of

the new entrants on the market and the stimulation of the investments in

this sector.

The European Union started since 2007 consultations regarding the Internet neutrality.

In a statement from the European Commission regarding the

Internet neutrality11 it is cited the survey realised by the Body of European

Regulators for Electronic Communications (BEREC) in some of the

member states of the European Union, which the breaching of this

principle through:12

- limited bandwidth traffic regarding the peer to peer network and

of the applications for multimedia files by some suppliers in

France, Greece, Hungary, Lithuania, Poland and UK

- blocking or extra charges for supplying VOIP services in the

mobile networks by certain electronic mobile communication

operators from Austria, Germany, Italy, Holland, Portugal and

Romania.

Even if some of the problems regarding the breaching of Internet

neutrality are signalised, this survey was highly criticised by some non-

governmental organisations because it was considered that through its

10 http://en.wikipedia.org/wiki/Network_neutrality 11http://ec.europa.eu/information_society/policy/ecomm/doc/library/communications_reports/netneutrality/comm- 19042011.pdf 12 http://www.apti.ro/raportul-Comisiei-Europene-privind-neutralitatea-Internetului



http://www.apti.ro/raportul-Comisiei-Europene-privind-neutralitatea-Internetului


50

arguments is supporting more likely solutions regarding the competition

law and commerce law instead of electronic communication law.13

In this moment, the European Union adopted a series of

directives (Directive 2009/136/CE, Directive 2009/240/CE) which

established the users’ rights regarding the networks and services of

electronic communications.14 In these directives it is required that the

Internet suppliers to assure to provide a larger transparency regarding

their services.

Even if the principal of Internet neutrality is partially regulated in

the directives, the European Union promised to continually monitor the

Internet suppliers and if necessary to take measures against for any

breaches.15

Through the European Parliament and council regulation (CE)

NR. 1211/2009 from 25th November 2009, the European Authority body

of Regulation in the Electronic field (OAREC) was established, of which

responsibilities were established through this regulation.

OAREC is operating under the Directive 2002/21/CE, the

Directive 2002/19/CE, the Directive 2002/20/CE, the Directive

2002/22/CE, the Directive 2002/58/CE, and also the regulations (CE)

nr. 717/2007.(3). OAREC meets is objectives in an independent, impartial

and transparent way. In the course of its activities, it is following the same

objectives followed by the national regulations authorities (ANR), exactly

as they are specified in Article 8 Directive 2002/21/CE.

The new created body is contributing in developing a better

functionality of the internal market of the electronic communications

networks and services and aspiring to assure a coherent application of the

electronic communication regulations. It is using the available expertise

from the ANR and is fulfilling the tasks in collaboration with these bodies

and with the commission. OAREC promotes the cooperation between

ANR areas and between the ANR and the commission.

13 http://www.laquadrature.net/en/net-neutrality-the-european-commission-gives-up-on-users-and-innovators 14 http://en.wikipedia.org/wiki/Telecoms_Package 15http://ec.europa.eu/information_society/policy/ecomm/doc/library/communications_reports/netneutrality/comm- 19042011.pdf




51

National regulation The freedom of expression is regulated in the Romanian

Constitution16 in art. 30 Freedoms of Expression and article art. 31 the

right for information. This way it can be said without the fear of being

wrong that the freedom of expression is an essential right when we

communicate about a democratic society because it is creating the

necessary conditions to exercise other human rights. To be able to express

an opinion requires having the knowledge sources to collate certain

criteria of information.

The right of freedom of expression is closely attached to the right

to have access to information. In the same time, the human right to

receive ideas and information obligates the person who transmits the data

to make the transmission in good faith.

The freedom of expression belongs to each individual, following

the lines of good faith. These freedoms incorporate the right to search

and receive information. It is not just the individual and the public, but

also the right to search for the media which has to receive the information

and transmit the data to the public.

Several years ago, in Romania,17 a telecommunication law was

suggested to match the European directives within the national law18 but

at that moment these laws received a negative response from the Equality

Commission19 and were not incorporated into law.

At present, there are weak regulations in this field. Through OUG

111/2011 which implements the modifications from the telecom

directives package, a series of obligations of transparency for ISP were

imposed since 2012.

For example, in article 51 there is the following directive: the

contracts signed by the consumers to benefit from the access and connections services to

the electronic communication public network or to the electronic communication services

for the public will contain in a clear format intelligible and easy accessible the following

minimum clauses regarding: information regarding any other conditions which restricts

the access or the use of certain services and applications(…) d) information regarding

the measurements and management procedures of the traffic to avoid the congestion of

16 publicata pe http://www.cdep.ro/ 17 http://webapp.senat.ro/pdf/11L378FG. 18 http://webapp.senat.ro/pdf/11L378EM. 19 http://webapp.senat.ro/pdf/11L378CA.

http://www.cdep.ro/

http://webapp.senat.ro/pdf/11L378FG.

http://webapp.senat.ro/pdf/11L378EM.pdf

http://webapp.senat.ro/pdf/11L378CA


52

the segments of the network or the maximum usage, also regarding the impact of these

procedures on the quality of the service.

The National Authority for Administration and Regulation in Communications - ANCOM

The National Authority for Administration and Regulation in

Communications - ANCOM20 is the institution which protects the

interests of the communication users from Romania through promoting

the competition on the communications market. This administration of

the limited resources encourages the efficient investments in the

infrastructure and innovation.

ANCOM was created from the union of two institutions with

experience and expertise in the administrative and regulatory field of this

sector: the General Inspector for Communications and Information

Technology (IGCTI) and the National Authority for Regulations in

Communications and Information Technology (ANRCTI).

This state institution shows that in Romania exist some Internet

suppliers that are breaching the principle of Internet neutrality.21 This

conclusion was preceded by a survey in 2010 realised by the National

Authority for Administration and Regulation in Communications.

It was found that Vodafone was limiting the traffic of VOIP for

all of the users of prepaid Internet Vodafone sim-cards.22 Orange also

practiced similar policies by charging different amounts dependent on

which network the receiver was based.23

Even if the principle of Internet neutrality is clearly breached,

there does not exist any law to stop any provider from performing

restrictions. Through a decision from 2011, ANCOM established some

quality indicators (by the ISP’s) the regarding the access service to the

Internet which required to be published by the providers.

20 Autoritatea Naţională pentru Administrare şi Reglementare în Comunicaţii la adresa de web http://www.ancom.org.ro 21http://economie.hotnews.ro/stiri-telecom-8527578-vodafone-orange-operatori-practici-blocare-traficului-internetromania-nu-sunt-interdictii-lege-spune-arbitrul-telecom.htm 22https://www.vodafone.ro/consumption/groups/public/documents/digital_asset/vod010112.pdf 23 http://www.orange.ro/young/ppy-young-ro.html

http://www.ancom.org.ro/


53

Conclusion The principle of Internet neutrality hinges on the

acknowledgement of the principle of human rights and is required to be

treated in this way to an international level. Just through its

implementation in the strong industrialised countries’ legislation, this will

guarantee the existence of the Internet as it was originally built: open and

competitive.

References

Convenţia Europeană a Drepturilor Omului adoptată la Roma la 4

noiembrie 1950, amendată de Protocoalele nr. 11 şi 14, publicată

pe site-ul Consiliului Europei la adresa http://www.echr.coe.int/


http://ec.europa.eu/information_society/policy/ecomm/doc/library/co

mmunications_reports/netneutrality/comm- 19042011.pdf

http://www.npt.no/ikbViewer/Content/109604/Guidelines%20for%20n

etwork%20neutrality.pdf

http://en.wikipedia.org/wiki/Network_neutrality_in_Canada

http://www.laquadrature.net/en/french-parliament-to-consider-net-

neutrality-law

http://www.leychile.cl/Navegar?idNorma=1016570&idParte=&idVersion

=2010-08-26

http://en.wikipedia.org/wiki/Network_neutrality



http://www.apti.ro/raportul-Comisiei-Europene-privind-neutralitatea-

Internetului

http://www.laquadrature.net/en/net-neutrality-the-european-

commission-gives-up-on-users-and-innovators

http://en.wikipedia.org/wiki/Telecoms_Package



http://www.cdep.ro/


http://webapp.senat.ro/pdf/11L378EM.

http://webapp.senat.ro/pdf/11L378CA.






http://en.wikipedia.org/wiki/Network_neutrality_in_Canada

http://www.laquadrature.net/en/french-parliament-to-consider-net-neutrality-law

http://www.laquadrature.net/en/french-parliament-to-consider-net-neutrality-law

http://www.leychile.cl/Navegar?idNorma=1016570&idParte=&idVersion=2010-08-26

http://www.leychile.cl/Navegar?idNorma=1016570&idParte=&idVersion=2010-08-26

http://en.wikipedia.org/wiki/Network_neutrality





http://www.laquadrature.net/en/net-neutrality-the-european-commission-gives-up-on-users-and-innovators

http://www.laquadrature.net/en/net-neutrality-the-european-commission-gives-up-on-users-and-innovators

http://en.wikipedia.org/wiki/Telecoms_Package



http://www.cdep.ro/


http://webapp.senat.ro/pdf/11L378EM.pdf

http://webapp.senat.ro/pdf/11L378CA


54

http://www.ancom.org.ro

http://economie.hotnews.ro/stiri-telecom-8527578-vodafone-orange-

operatori-practici-blocare-traficului-internetromania-nu-sunt-

interdictii-lege-spune-arbitrul-telecom.htm

https://www.vodafone.ro/consumption/groups/public/documents/digit

al_asset/vod010112.pdf

http://www.orange.ro/young/ppy-young-ro.html

http://www.ancom.org.ro/

http://economie.hotnews.ro/stiri-telecom-8527578-vodafone-orange-operatori-practici-blocare-traficului-internetromania-nu-sunt-interdictii-lege-spune-arbitrul-telecom.htm



https://www.vodafone.ro/consumption/groups/public/documents/digital_asset/vod010112.pdf

https://www.vodafone.ro/consumption/groups/public/documents/digital_asset/vod010112.pdf

http://www.orange.ro/young/ppy-young-ro.html

The Law Applicable to the Procedure Form – Comparison Between …

55

THE LAW APPLICABLE TO THE PROCEDURE FORM – COMPARISON BETWEEN THE

ROMANIAN AND THE MOLDAVIAN LEGISLATION

Raluca-Oana ANDONE1

Abstract: The paper presents a comparison between the Romanian and the Moldavian

legislation regarding the law applicable to the procedure form.

The author analyses the provisions of the new Romanian Civil Procedure Code, the

ones from the Moldavian Civil Procedure Code, the dispositions of the Regulation (EC) no.

593/2008, of the Apostille Convention and of the treaties signed between the Republic of

Moldova and other countries in the field of civil juridical assistance.

Also, the relevant decisions of the Romanian and Moldavian courts of justice are

taken into consideration.

Keywords: procedure form, apostille, applicable law, Romanian Civil Procedure Code, Republic

of Moldova Civil Procedure Code.

1 University lecturer, Doctor, Law Faculty, “Petre Andrei” University from Iasi,

Romania; definitive legal adviser inscribed in the Legal Advisers College from Iasi, [email protected]

Raluca-Oana ANDONE

56

The procedure form regards the civil law suit development and is

governed by the forum law (lex processualis fori), meaning that the applicable

procedure law rules are the ones from the country whose court of justice

is competent to solve the law suit, even if one of the parties is a foreigner.

Thus, in Title IV of the Republic of Moldova Civil Procedure

Code is presented the procedure regarding the law suits with a foreign law

element. According to article 458 of the Republic of Moldova Civil

Procedure Code, „in the civil law suits with a foreign element, the

Moldavian courts of justice apply the national procedure legislation, if

there are no different dispositions. The object and the grounds of the civil

law suit in this cases are determined by the law that regulates the material

aspects of the juridical relation, as well as the procedural quality of the

parties. The proof means of the juridical act and the proving power of the

act are the ones stipulated by the law of the place where the juridical act

has been signed or by the law chosen by the parties, if they have the right

to choose; still, it is possible to apply the Moldavian law if it allows other

proof means than the ones stipulated for the juridical act proof. The proof

administration is done according to the Moldavian law. The proof of facts

is done according to the law of the place where they were produced. The

proof of civil status and the proving power of the civil status acts are

regulated by the law of the place where the juridical act had been

signed.”2.

The authors from the speciality literature have underlined the fact

that the exterior form of the juridical act does not have the same meaning

in all law systems. In the English law system it is considered that the legal

requirements regarding the written conclusion of the contract, it’s signing

and postage are procedure forms that are the subject of the forum law, if

they are stipulated in order to make the contract enforceable by legal

action in a court of justice or in order to be used as a proof mean,

respectively these are formal validity conditions, if their fulfilment is

stipulated for the contract validity3.

According to article 22 of the 1996 Treaty between Romania and the

Republic of Moldova regarding the civil and penal juridical assistance, „The juridical

acts that are emitted by the competent authorities or by other institutions

2 The Republic of Moldova Civil Procedure Code no. 225-XV/2003, published in the Official Monitor of the Republic of Moldova no. 111-115/451/12.06.2003. 3 Ion Filipescu, Andrei Filipescu, Tratat de drept internaţional privat (International private law treatise), Universul Juridic publishing house, Bucharest, 2007, p. 321.


57

pertaining to one of the Contracting Parties, as well as the private

signature writings, to which these institutions are conferring certain date

and are attesting the signature veracity, are valid on the territory of the

other Contracting Party without any other legalization. This disposition is

applicable in regard to the extracts and copies of these acts. 2. The acts

mentioned in paragraph 1 have, on the territory of the other Contracting

Party, the same proving power as the same type acts of this last

Contracting Party”4.

According to article 13 from the 1993 Treaty between the Republic of

Moldova and the Russian Federation regarding the juridical assistance and the civil,

family and penal juridical relations, „1) The acts that have been concluded or

certified by the justice institutions or by an official person from the

territory of a Contracting Party, in the limits of their competences and in

the form established and certified by a seal, are valid on the territory of

the other Contracting Party without any other legalization. 2) The acts,

which on the territory of a Contracting Party are acknowledged as official,

have the same proving power on the territory of the other Contracting

party”5.

In article 15 from the 1993 Treaty between the Republic of Moldova and

Ukraine regarding the juridical assistance and the civil and penal juridical relations it

is stipulated the fact that „the juridical acts concluded or legalized by the

adequate authority of one of the Contracting Party, having the official seal

and the signature of the authorised party, are valid on the territory of the

other Contracting Party without any other legalization; this refers also to

the copies and the translations of the acts that are legalized by the

adequate authority. The acts that are officially recognized on the territory

of one of the Contracting Party are also considered official on the

territory of the other Contracting Party.”6.

4 The Treaty between Romania and the Republic of Moldova regarding the civil and penal juridical assistance from 1996 from Kishinev, ratified by the Republic of Moldova Parliament Decision no.1018-XIII/1996, published in the Official Monitor of the Republic of Moldova no. 83/785/26.12.1996, available on-line at http://www.mfa.gov.md/tratate-internationale-rm, http://lex.justice.md, ratified by Romania by way of Law no. 177/1997, published in the Romanian Official Monitor no. 310/13.11.1997. 5 The Treaty between the Republic of Moldova and the Russian Federation regarding the juridical assistance and the civil, family and penal juridical relations from 1993 from Moscow, ratified by the Republic of Moldova Parliament Decision no. 260-XIII/1994, Tratate internaţionale (International treaties), vol. 21, 1999, p. 49. 6 The Treaty between the Republic of Moldova and Ukraine regarding the juridical assistance and the civil and penal juridical relations from 1993 from Kiev, ratified by the Republic of Moldova Parliament

http://www.mfa.gov.md/tratate-internationale-rm/


http://lex.justice.md/

Raluca-Oana ANDONE

58

According to article 13 from the Independent States Community

Convention regarding the juridical assistance and the civil, family and

penal juridical relations of the 22nd of January 1993, „1) The acts that have

been drafted or certified by the justice authority or by the official person

on the territory of a Contracting Party, in the limit of their competences

and in the established form and certified by a seal, are valid on the

territories of other Contracting Parties, without any other legalization. 2)

The acts that are officially recognized on the territory of a Contracting

have the same proving power on the territory of the other Contracting

Parties”7.

Similar dispositions to the ones from the article 458 of the

Republic of Moldova Civil Procedure Code existed in articles 158-161

from the Romanian Law no. 105/1992, that have been repealed on

15.02.20138. Some authors considered that article 161 line (1) from Law

no. 105/1992 limited the area of the applicable laws, in the sense that it

stipulated only the alternative application of the locus regit actum and lex

voluntatis9 rules. The facts proof is done according to the law of the place

where they were produced. The proof of civil status and the proving

power of the civil status acts are regulated by the law of the place where

the invoked writing was concluded. The proof administration is done

according to the Romanian law. In regard to the enforcement proceedings

and the measures that can be taken in case of a faulty enforcement, the

law of the country where the enforcement takes place will be applicable.

According to the dispositions of article 230 letter q) from the Law

no. 71/2011 for the application of the new Romanian Civil Code, articles

1-33 and articles 36-147 from the Law no. 105/1992 have been repealed

Decision no. 261-XIII/1994, Tratate international (International treaties), vol. 22, 1999, p. 85. 7 The Independent States Community Convention regarding regarding the juridical assistance and the civil, family and penal juridical relations from 22 January 1993 from Minsk, ratified by the Republic of Moldova Parliament Decision no. 402-XIII/1995, Tratate Internaţionale (International treaties), vol. 16. 1999, p. 261. 8 Violeta Cojocaru, Raluca-Oana Andone, Reflectarea în literatura de specialitate a aspectelor conflictuale privind condiţiile de formă ale actului juridic (The speciality literature reflection on the conflict of law aspects regarding the formal validity conditions of the juridical act), „Revista Moldovenească de Drept Internaţional şi Relaţii Internaţionale (Moldavian Journal of International Law and International Relations)” no. 1/2011, p. 64. 9 Dragoş Alexandru Sitaru, Drept internaţional privat (Private international law), Lumina Lex publishing house, Bucharest, 2001, p. 219.


59

starting from 01.10.201110. Thus, from Law no. 105/1992 only the

dispositions of articles 34-35 regarding the applicable law for the

maintenance obligation and the dispositions of articles 148-183,

representing Chapter 12. „International private law procedure

dispositions”, including section II entitled „The law applicable in

international private law suits” were still in force 11. Starting with

15.02.2013, the provisions of articles 148-181 from the Romanian law no.

105/1992 have been replaced by articles 1050-1118, correspondent to the

7th Book entitled „The international civil law suit” from the 2010

Romanian Civil Procedure Code, instituted by way of Law no. 134/2010.

Thus, according to articles 1073-175 from the 2010 Romanian

Civil Procedure Code, „regarding the international civil law suits, the court

of justice applies the Romanian procedure law, under the reserve of

expressly contrary dispositions. The qualification of a problem as being

one of procedure law or of material law is done according to the

Romanian law, under the reserve of the juridical institutions without an

equivalent in the Romanian law. The procedure quality of the parties, the

object and the cause of the application for summons in the international

civil law suit are established according to the law that governs the material

aspects of the legal relation on trial”. On the basis of article 1068 from the

2010 Romanian Civil Procedure Code, „the procedure capacity of each of the

parties on trial is governed by his national law, and the procedure capacity of the

stateless person is governed by the Romanian law”12.

Article 1076 from the 2010 Romanian Civil Procedure Code

stipulates the fact that „the proof means for proving a juridical act and the

proving power of the writing are the ones stipulated by the law chosen by

the parties, when the law of the country where the juridical act was signed

is giving them this freedom of choice. In the absence of this freedom or

10 Law no. 71/2011 for the application of the new Romanian Civil Code, published in the Romanian Official Monitor no. 409/10.06.2011. 11 Raluca-Oana Andone, Modificări aduse de Noul Cod civil în materia Dreptului civil. Partea generală. Persoanele. Drepturile reale şi în domeniul Dreptului internaţional privat (Modifications brought by the new Civil Code in the area of the Civil Law. General Part. The natural persons and the legal entities. The rights in rem and in the area of Private International Law), „Jurnalul de studii juridice (Journal of legal studies)” no. 1/2011 - Supplement for the scientific communications from the International Conference of 21st-22nd of April 2011 „The legislation reform in the area of Civil Law”, p. 61-81. 12 The Romanian Civil Procedure Code – Law no. 134/2010, published in the Romanian Official Monitor no. 485/15.07.2010, republished in the Romanian Official Monitor no. 545/03.08.2012.

Raluca-Oana ANDONE

60

when the parties did not use it, the law of the country where the juridical

act was signed is applicable. In exchange, the facts proof is governed by

the law of the country where these were produced or done. Still, the

Romanian law is applicable if it allows other proof means than the ones

stipulated by the above-mentioned laws. The Romanian law is also

applicable in case it accepts the witness proof and the judge assumptions

proof, even in the situations when these proof means would not be

admissible according to the foreign applicable law. The civil status proof

and the proving power of the civil status acts are governed by the law of

the place where the invoked writing was concluded. The proof

administration in the international civil law suit is governed by the

Romanian law”.

In the Romanian speciality literature some authors affirmed that

the forum law governs the proof administration (litis ordinatoria), such as

the interrogation performance, the witnesses proposal, the false writing

procedure and the proof evaluation; in exchange, the law of the country

where the writing was concluded or the law that governs the material

aspects of the legal relation on trial is applicable to the proof admissibility

(litis decisoria). The law that governs the material aspects of the legal

relation is applicable in regard to the procedure quality, the burden of

proof, the legal assumptions, the judicial testimony, the proof agreements.

The pre-constituted proof means are governed by the law applicable to

the formal aspects of the juridical act, so that the formal validity

conditions, the proving power, the value of the beginning of written

evidence, the value of the writing date are governed by the law of the

country where the juridical act was concluded or by the law chosen by the

parties; also, the forum law is applicable when the witness proof and the

judge assumptions proof are accepted, even if these are not allowed by the

foreign applicable law13.

In the French juridical literature, the law applicable to the material

aspects of the legal relation on trial is governing the object of the proof

and the burden of proof. The law governing the form (such as locus regit

actum) is applicable to the admissibility of the written proof means and the

proving power of the writings. The proof means administration is done

13 Ion Filipescu, Drept internaţional privat (International Private Law), Actami publishing house, Bucharest, 1999, pp. 331-332.


61

according to the forum law, which also governs the witness proof, the

confession and the judge assumptions14.

According to article 230 letter a) from the Law no. 71/2011 for

the application of the 2009 Romanian Civil Code, the proof domain was

regulated, until the entering into force of the new Romanian Civil

Procedure Code, by the articles 1169-1206 from the 1864 Romanian Civil

Code regarding the admissibility and the proving power of four means of

proof – the writings, the testimony, the confession, the assumptions, as

well as the burden of proof, and by the articles 167-225 and articles 235-

241 from the 1985 Romanian Civil Procedure Code, regarding other three

proof means – the expertise, the on-site investigation and the material

proofs, as well as the proof administration procedure. The proof aspects

are no longer to be found in the new Romanian Civil Code – Law no.

287/2009, but in the Law no. 134/15.07.2010 regarding the new

Romanian Civil Procedure Code, in force starting from 15.02.2013,

according to Law no. 76/2012 for its application, modified by the

Government Emergency Ordinances no. 44/2012 and no. 4/201315.

In articles 259-352 from the new Romanian Civil Procedure Code

– Law no. 134/2010 the writings proof, the witness proof, the confession,

the expertise, the on-spot investigation and the material proofs are being

regulated in detail, and in article 26, entitled „The law applicable to the

proof means”, the following are stipulated: „(1) The admissibility

conditions and the proving power of the pre-constituted proofs and of

the legal assumptions are governed by the law in force at the time of the

juridical facts occurrence, which are the object of the probation. (2) The

proof administration is done according to the law in force at the time of

their administration”.

In article 18 regarding the burden of proof from the Regulation

(EC) no. 593/2008 it is stipulated the fact that the law that regulates a

contract obligation on the basis of this regulation is applicable, in the

contract obligation area, if it contains rules that are constituting legal

assumptions or that are distributing the burden of proof. The contract or

the juridical act meant to produce juridical effects can be proved by any

14 Fongaro Eric, La loi applicable à la preuve en droit international privé, Librairie générale de droit et de jurisprudence, Paris, 2004, p. 24, p. 107, pp. 225-227. 15 Raluca-Oana Andone, Drept civil. Persoanele - în reglementarea Noului Cod Civil (Civil Law.The natural persons and the legal entities – in the new Civil Code regulation) – electronic form university course support, Iaşi, 2012, p. 7.

Raluca-Oana ANDONE

62

proof mean permitted either by the forum law or by any of the laws

mentioned in article 11 of the Regulation, on the basis of which the

contract or the respective juridical act is valid from the formal point of

view, under the condition that the respective proof means can be

administered in front of the invested court of justice16.

In regard to the effects of the juridical act concluded abroad with

the observance of the locus regit actum rule, the juridical act, that was validly

concluded abroad, will have the same proving power in Romania as the

one stipulated in the law of the country where the juridical act has been

concluded. Thus, in Romania it will be possible to administer the witness

proof of the juridical act concluded abroad even overpassing the value of

250 lei, if the law of the country where it was concluded allows it17.

The juridical act concluded in a foreign country in the forms

stipulated by the law of the country where the juridical act was concluded

will not be enforceable in Romania as well, even if it would be enforceable

according to the law of the country where the juridical act was concluded,

the solution being grounded on the sovereignty principle and on the

countries equality principle. This juridical act will become enforceable in

Romania by way of the exequatur procedure.

According to article 466 from the Republic of Moldova Civil

Procedure Code, the official juridical acts that are issued, drafted or

legalized abroad can be presented to the Republic of Moldova courts of

law only if these are over legalized on hierarchical administrative way and,

afterwards, by the diplomatic missions or the consular offices of the

Republic of Moldova. The administrative over legalization is governed by

the procedure established by the origin state of the juridical act, followed

by the over legalization performed either by the diplomatic mission or the

consular office of the Republic of Moldova from the origin state or by the

diplomatic mission or the consular office of the origin state in the

16 Raluca-Oana Andone, Norme conflictuale privind forma actului juridic cuprinse în Noul Cod civil şi în Regulamentul (CE) nr.593/2008 privind legea aplicabilă obligaţiilor contractuale - Roma I (Conflict of law dispositions regarding the form of the juridical act from the new Civil Code and from the EC Regulation no. 593/2008 regarding the law applicable to contract obligations –Rome I), „Dinamica dreptului românesc după aderarea la Uniunea Europeană. Comunicări prezentate la Sesiunea ştiinţifică din anul 2010 a Institutului de Cercetări Juridice (The dynamics of the Romanian law after the EU adhesion. Communications from the 2010 Scientific Session of the Juridical Research Institute)”, Universul Juridic publishing house, Bucharest, 2011, p. 202. 17 Ion Filipescu, op. cit., p. 339.


63

Republic of Moldova and, afterwards, in both situations, by the Republic

of Moldova Ministry of External Affairs (and European Integration). The

over legalization of the acts drafted or legalized by the Republic of

Moldova courts of law is done by the Ministry of Justice and the Ministry

of Internal Affairs, on behalf of the Republic of Moldova authorities. The

official acts issued on the territory of a member state of the international

treaty to which the Republic of Moldova is a contracting party are

acknowledged as writings without over legalization in the Republic of

Moldova courts of justice”.

A similar disposition was to be found in article 162 of the

Romanian Law no. 105/1992. Starting from 15.02.2013, the article 1078

from the 2010 Romanian Civil procedure Code is applicable, which states that the

official writings, drafted or legalized by a foreign authority or by a public foreign agent,

can be presented in front of the Romanian Courts of justice only „if these are over

legalized, by hierarchical administrative way in the state origin and by the

Romanian diplomatic mission or consular office, for certifying their

signatures and seal. The administrative over legalization is governed by the

procedure established in the act’s state origin, followed by the over

legalization performed either by the Romanian diplomatic mission or

consular office from this state or by the diplomatic mission or consular

office of the origin state in Romania and, afterwards, in any of these two

situations, by the Ministry of External Affairs. The exemption of over

legalization is allowed on the basis of the law, of an international treaty to

which Romania is a party or on the basis of reciprocity. The over

legalization of the juridical acts drafted or legalized by the Romanian

courts of justice is done by the Ministry of Justice and the Ministry of

External Affairs, on behalf of the Romanian authorities, in this order”.

The Republic of Moldova has adhered to the Hague Convention

regarding the abolishing of the foreign official juridical acts legalization condition (the

Apostille Convention) from the 5th of October 1961 by way of Law no. 42-

XVI/2006, entered into force on 16.03.2006. Thus, either on the basis of the

Apostille Convention or on the basis of bilateral conventions, the foreign juridical acts

over legalization formality has been abolished by the Republic of Moldova in the

relations with certain states, such as Romania.

By way of Government Emergency Ordinance no. 66/1999, Romania has

adhered to the Apostille Convention. The competent Romanian authorities

for applying the apostille stated in the 1961 Hague Convention are the

courts of justice for the documents that are issued by an authority or by a

Raluca-Oana ANDONE

64

clerk from a state jurisdiction, including the ones issued by a prosecutor, a

registrar or a judiciary executor, the public notary chambers for authentic

writings, and the prefectures for the official statements, such as the

registration mentions, the certain date investment visa and the signature

legalizations on a private signature writing, according to article 2 of

Government Emergency Ordinance no. 66/1999. In exchange, the Convention

is not applicable to the documents drafted by diplomatic or consular

agents and to the administrative documents that have a direct link to a

commercial or customs operation.

The articles 2-3 from the 1961 Hague Convention stipulate the

fact that „each contracting state is exempting of over legalization the acts

to which the Convention applies and that are going to be presented on its

territory. The over legalization refers only to the formality through which

the diplomatic or consular agents of the country where the act is going to

be presented are attesting the veracity of the signature, the quality under

which the signatory of the document has acted or, if that is the case, the

identity of the seal and of the stamp on this act. The only formality that

could be requested in order to attest the veracity of the signature, the

quality under which the signatory of the document has acted or, if that is

the case, the identity of the seal and of the stamp on this act, is the

apostille imprinting, issued by a competent authority of the state

wherefrom the document is issued. Still, the above-mentioned formality

cannot be requested when either the laws, the regulations or the usual

practices in force in the country where the act is going to be presented or

a settlement between two or more contracting states is abolishing,

simplifying or exempting the act of over legalization”18.

According to articles 3-4 of the 1961 Hague Convention, the

apostille is imprinted exactly on the act or as an extension of the act and

must be according to the model that is annexed to the Convention. If it is

done properly, the apostille attests the veracity of the signature, the quality

under which the signatory of the document has acted or, if that is the

case, the identity of the seal and of the stamp on this act. The foreign

judgment represents an act (instrumentum) issued by a foreign authority and

18 Convention regarding the abolishing of the foreign official juridical acts legalization condition from Hague of 1961, to which the Republic of Moldova hase acceded by way of Law no. 42-XVI/2006, published in the Republic of Moldova Official Monitor no. 47-50/24.03.2006, and to which Romania has adhered by way of Law no. 52/2000 for the approval of Government Ordinance no. 66/1999, published in the Romanian Official Monitor no. 169/20.04.2000.


65

is assimilated to the authentic writing, having the proving power up to

false registration in regard to the personal ascertainment of the foreign

judge, respectively it has the proving power up to the contrary proof in

regard to all of the other ascertainment, based on the evidences

administrated by the parties. In the speciality literature, the proving power

of the foreign judgement has been classified in „external proving power,

that involves the checking of its formal validity, its signatures and seal, in

order to establish if the presented writing is really a judgement, power

insured by the over legalization procedure, respectively internal proving

power, that refers to the establishment of the truth value from which the

factual ascertainment of the foreign judgment can benefit”19.

The acknowledgement is the operation through which the

authority of a foreign judgment is ascertained, on the basis of its force of

res judicata, while the exequatur is the judiciary procedure through which the

foreign judgment is declared enforceable, following the control performed

by the court of justice of the state where the enforcement is to be

performed20. The enforcement of the foreign judgments is performed

according to the law of the country where their enforcement is

requested21.

The acknowledgement and the enforcement of the foreign

judgments is performed on the basis of article 467 of the Republic of

Moldova Civil Procedure Code, that stipulated the following: „The

foreign judgments, including the transactions, are acknowledged and

enforceable of full right in the Republic of Moldova either if this is

stipulated in the international treaty to which the Republic of Moldova is a

party or on the basis of the reciprocity principle in regard to the effects of

the foreign judgments.” According to the article 468 of the Republic of

Moldova Civil Procedure Code, „the foreign judgment that has not been

executed voluntary can be enforced on the territory of the Republic of

Moldova, at the creditor’s request, on the basis of the approval decision

19 Violeta Cojocaru, Recunoaşterea şi executarea hotărârilor judecătoreşti străine în materie civilă în Republica Moldova (The acknowledgement and the execution of the civil foreign judgements in the Republic of Moldova), The Moldova State University publishing center, Kishinev, 2007, p. 55. 20 Ioan Macovei, Drept internaţional privat - în reglementarea Noului Cod civil şi de procedură civilă (Private international law – in the new Civil Code and new Civil Procedure Code regulation), C. H. Beck publishing house, Bucharest, 2011, p. 270, p. 274. 21 Violeta Cojocaru, op. cit., p. 44

Raluca-Oana ANDONE

66

issued by the court of justice where the enforcement is to be performed.

In case the debtor does not have a domicile or the headquarters in the

Republic of Moldova or when the domicile is not known, the judgement

is enforced at the place where his goods are situated”.

In the Republic of Moldova Supreme Court of Justice Decision

no. 7/1998 regarding the jurisprudence related to the application of some

legal dispositions regarding the acknowledgement and the enforcement of

foreign judgments in patrimonial or non-patrimonial law suits on the

territory of the Republic of Moldova it is stipulated the fact that „the

court of justice that examines the application of summons is limited to the

control of fulfilling the conditions stipulated in the treaties, the

international conventions to which the Republic of Moldova is a party,

regarding that specific issue. The issues regarding the legality of the

judgement are in the exclusive competence of the court of justice that is

issuing the judgement. On the Republic of Moldova territory, the foreign

judgements of the courts of justice and of the arbitration courts, that are

definitive or immediately enforceable, are going to be acknowledged and

enforced, if the treaty, the international convention does not stipulate

otherwise.”22.

Under the previous Romanian legislation, the acknowledgement and the

enforcement of the foreign court of justice or arbitration judgments was

done on the basis of the articles 166-181 of the Romanian Law no.

105/1992. Starting with 15.02.2013, the dispositions of articles 1080-1095

of the 2010 Romanian Civil Procedure Code regarding the

acknowledgement and enforcement of the foreign judgments are

applicable, which are referring to the contentious or non-contentious

matter jurisdiction court of justice acts, the notary acts and the acts of any

other competent authority from a non-EU member state, as the article 1079

from the 2010 Romanian Civil Procedure Code is defining the notion of

foreign judgments.

Thus, according to articles 1080-1081 of the same law, „the

foreign judgments are acknowledged of full law in Romania, if these refer

to the personal statute of the citizens of the state where the judgments

were issued or, if being issued by a third country, have previously been

acknowledged in the citizenship state of each party or, in the absence of

the acknowledgement, have been issued on the basis of a law that has

22 The Republic of Moldova Supreme Court of Justice, Decision no. 7/1998, available on-line at http://csj.md.


67

been determined as applicable according to the Romanian private

international law, are not contrary to the Romanian private international

law public order and the right to a defence has been respected. The

judgments regarding other law suits can be acknowledged in Romania in

order to benefit from the power of res judicata, if these are definitive

according to the law of the country where these were issued, if the court

of justice that has issued them has had the competence of judgement,

according to the law of the headquarters country, and if there is a

reciprocity in regard to the effects of the foreign judgments between

Romania and the court of justice state issuing the respective judgement”.

The acknowledgement application of summons is judged by the

court wherefrom are the domicile or the headquarters of the person that

has refused the foreign judgments acknowledgement. The Romanian

court of justice cannot examine the material aspects of the foreign

judgment and cannot modify it, according to the dispositions of articles

1083-1084 of the 2010 Romanian Civil Procedure Code.

According to the articles 1088-1089 of the 2010 Romanian Civil

Procedure Code, „the foreign judgments that are not voluntary executed

by the obligated parties can be enforced on the Romanian territory at the

request of the interested person, by the court where the enforcement will

take place, with the observance of the conditions stipulated in article 1081

of the same law, as well as of the condition that the judgment is

enforceable according to the law of the state where the court of justice

that has issued it has the headquarters”.

„The foreign judgment issued by the competent court of justice

has got proving power in Romania, in regard with the ascertainment that

it contains, if it satisfies the requests necessary for its authenticity

according to the law of the state where the court of justice that has issued

it has the headquarters. The ascertainment made by the foreign court of

justice does not have the above-mentioned proving power if these are not

compatible with the Romanian private international law public order.

Proof of the facts ascertained by the foreign court of justice can be done

by any proof mean”, according to article of the 2010 Romanian Civil

Procedure Code.

In regard to the foreign arbitration judgement issued by a

competent arbitration court, these have in Romania the proving power

regarding the factual situations which these are ascertaining, on the basis

of the articles 1117-1118 of the 2010 Romanian Civil Procedure Code, the

Raluca-Oana ANDONE

68

court not having the option of examining the arbitration judgement

regarding the material aspects of the arbitration case.

In the relationship between Romania and the European Union member states

the Regulation (EC) no. 44/2001 of the European Parliament and of the

Council of the 22nd December 2000 regarding the competence, the

acknowledgement and the execution of the civil and commercial

judgements is applicable. According to the article 33 line (1) of this

Regulation, „a judgement issued in a member state is acknowledged in the

other member states without being necessary any special procedure”, and,

according to the article 38, „a judgement, issued in a member state and

enforceable in that state, is enforced in another member state when, at the

request of any of the interested parties, has been declared as enforceable

in the respective state; the territory competence is determined by the

domicile of the party against whom the enforcement is requested or by

the place of enforcement”. On the basis of article of the Regulation, „the

party that invokes the acknowledgement of a judgement or that is

requesting the enforcement approval of a judgement must present a copy

of the judgement that fulfils the necessary conditions in order to establish

its authenticity” and to present a certificate issued by the court of justice

or by the competent authority from the member state where the

judgement was issued, which should stipulate that this is enforceable23.

In article 13 of the Republic of Moldova Civil Procedure Code,

the Moldavian legislator affirms that „when judging the civil law suits, the

court of justice applies the legislation of another state according to the law

or the international treaties to which the Republic of Moldova is a party.

On the purpose of ascertaining the existence and the content of the laws

or of any foreign type of law, the court of justice requests, in the

established manner, the assistance of the competent Moldavian

authorities. If it is impossible to obtain the necessary information about a

law or any other foreign juridical act, even if it has undertaken all

necessary measures, the court of justice will apply its own national law”.

On the basis of article 16 of the Republic of Moldova Civil Procedure

Code, „the enforcement on the Moldavian territory of the foreign court of

justice or international arbitration judgments or interpellations is done

23 Regulation no. 44/2001 of the European Parliament and of the Council regarding the competence, the acknowledgement and the execution of the civil and commercial judgements, published in the European Union Official Journal no. L12/16.01.2001, p.1-23, available on-line at http://eur-lex.europa.eu.

http://eur-lex.europa.eu/


69

according to this law, the international treaties to which the Republic of

Moldova is a party, as well as on the basis of the reciprocity principle”.

The 2009 Proposal for a European Parliament and Council

Regulation regarding the competence, the applicable law, the

acknowledgement and the enforcement of the court of justice judgements

and of the authentic writings in the area of the successions, as well as the

creation of an European inheritor certificate has been commented in the

speciality literature: „The harmonization of the national dispositions of

international private law and of the succession international procedure

dispositions, as well as the creation of an European inheritor certificate

are, in principle, meritorious initiatives, because these facilitate and

accelerate the liquidation of the cross-border successions in the benefit of

the European Union member states citizens. Still, the European inheritor

certificate will represent the source of numerous divergences with the

national inheritor certificates, that are regulated in most of the national

legislations from the member states and that are still applicable, including

for the successions with a foreign law element. Some authors have

supported the freedom of circulation of the authentic writings in the

succession domain and their cross-border usage, but their

acknowledgement stipulated in article 34 from the Regulation proposal is

considered improper, because it is a notion used in the area of the court

of justice judgements. If the idea of acknowledgement is pursuing the

elimination of the present apostille usage, then this aspect should be

clarified”24. In exchange, according to article 35 from the Regulation

proposal, the authentic writings registered and enforceable in a member

state are declared enforceable in another member state according to the

procedure stipulated in articles 38-37 of the Regulation (EC) no. 44/2001.

The Decision no. 2re-232 of 28th of August 2008 of the Economic

College of the Republic of Moldova Supreme Court of Justice, in the

Milport Marketing LLP versus ÎM Cristal Flor law suit, refers to the

acknowledgement and enforcement approval of a foreign judgment. „By

using the proxy of 03.04.2008, Fiona Parascheva, on behalf of Trinitron

Investments Ltd, has mandated Vitalie Nagacevschi to act on behalf of

Dagget Group LLC, including to represent its interests in all courts of

24 Marius Kohler, Markus Buschbaum, La reconnaissance des actes authentiques prévue pour les successions transfrontalières. Réflexions critiques sur une approche douteuse entameé dans l’harmonisation des règles de conflits de lois, „Revue critique de droit international privé” nr. 4/2010, p. 631, p. 651.

Raluca-Oana ANDONE

70

justice. The proxy had been legalized by N.G. Petrides – the person

mandated by the Ministry of Internal Affairs of the Cyprus Republic to

legalize the documents from Limassol, who has confirmed the fact that

Fiona Paraskeva has presented the documents (constitutive acts, statutes,

registration documents of Trinitron Investments Ltd and of Dagget

Group LLC), that prove her right to issue the proxy. On the above-

mentioned proxy was imprinted the apostille of Cyprus, according to the

Convention regarding the abolishing of the foreign official juridical acts

legalization condition from Hague of the 5th of October 1961, to which

the Republic of Moldova has acceded by way of Law no. 42-XVI/2006.

The above-mentioned documents are presumed to be authentic,

because these have been authenticated by notaries, on the basis of the

constitutive acts and registration documents of Trinitron Investments Ltd

and of Dagget Group LLC. The documents are acknowledged on the

territory of the Republic of Moldova on the basis of the apostille that is

imprinted by the foreign competent authorities. The assignment contract

of 16.04.2008 is not opposable to the Dagget Group LLC Company,

because this was signed by another person than the authorized one -

Fiona Paraskeva”25. In our opinion, the Moldavian Supreme Court of

Justice decision was correct.

Through the Decision no. 2re-9/2011, issued in the S.R.L.

,,Domotehnica-Nord” Ukraine versus S.R.L. „Donteh-Plus” Republic of

Moldova law suit, the Economic College of the Republic of Moldova

Supreme Court of Justice, judging the appeal declared by SRL „Donteh-

Plus” Republic of Moldova against the Economic Appellate Court of the

25th of October 2010 regarding the acknowledgement and enforcement

approval in the Republic of Moldova of the Decision no. 15m/2010 of

29.04.2010 of the International Arbitrage Court from the Ukraine

Chamber of Commerce and Industry regarding the receiving of the debt

in a total sum of 28.784,45 U.S. dollars in the account of S.R.L. „Donteh-

Plus” Republic of Moldova on behalf of S.R.L. ,,Domotehnica-Nord”

Ukraine, has stated that ,,examining the cause in the absence of S.R.L.

„Donteh-Plus” Republic of Moldova, even if this has requested the

postponing of the examination through the telegram of 28.04.2010,

invoking the reason that the company administrator is ill, without

annexing any evidence in this sense and without issuing a proxy for

25 The Republic of Moldova Supreme Court of Justice, Decision no. 2re-232/2008, available on-line at http://csj.md.


71

another person for representing the company at the court hearing, cannot

be considered a ground for refusing the acknowledgement and

enforcement approval of the arbitrary judgement of 29.04.2010”26. In our

opinion, the decision of the Moldavian Supreme Court of Justice was

thorough.

In the Decision no. 5205/27.06.2007 of the Romanian Supreme

Court of Justice, the IV th Civil and Intellectual Property Section, the court

of justice has applied the dispositions of the Romanian legislation

regarding the apostille. The Romanian Supreme Court of Justice has

correctly accepted the appeal as thorough, by considering the fact that the

appeal court of justice has wrongly eliminated from the evidences the

inheritance certificates issued by the authorities of Israel on behalf of the

plaintiff, considering that these do not fulfil the formal conditions

stipulated by article 162 line (1) of the Law no. 105/1992, in order to be

used in front of the Romanian courts of justice (respectively, these are not

legalized). Thus, according to the Emergency Government Ordinance no.

66/1999, Romania has adhered to the 1961 Hague Convention regarding

the abolishing of the foreign official juridical acts legalization condition,

according to which each contracting state exempts of over legalization the

acts to which this convention applies, meaning the official acts that have

been concluded on the territory of a contracting state and that are going

to be presented on the territory of another contracting state. In these

conditions, the only formality that could have been requested in order to

attest the veracity of the signature, the quality of the act signatory or, if it

is the case, the identity of the seal and of the stamp, was the apostille,

according to articles 3 - 4 of the Convention. The writings presented by

the plaintiff had the apostille that was imprinted by the competent

authority of Israel, from which the documents were issued, so that not

acknowledging their juridical efficiency was wrongly done, a solution that

we are supporting27.

Through the Decision no. 963/08.02.2005 of the Romanian

Supreme Court of Justice, the IVth Civil and Intellectual Property Section,

the court of justice has applied the Romanian legal dispositions regarding

the exemption of apostille imprinting formality. In this case, because the plaintiff

26 The Republic of Moldova Supreme Court of Justice, Decision no. 2re-9/2011, available on-line at http://csj.md. 27 Şerban Alexandru Stănescu, op. cit., pp. 171-175; Romanian Supreme Court of Justice, Decision no. 5205/2007.

Raluca-Oana ANDONE

72

used the acts issued on the territory of the United States of America for

their proving power, the dispositions of articles 2-3 of the 1961 Hague

Convention regarding the abolishing of the foreign official juridical acts

legalization condition could be applicable, to which both U.S.A. and

Romania are parties, according to which each state is exempting of over

legalization the acts to which this convention is applicable and that are

going to be presented on its territory, the only formality that could be

requested being the imprinting of the apostille in order attest the veracity

of the signature, the quality of the act signatory or, if it is the case, the

identity of the seal and of the stamp. In the case brought to justice,

because it was a proxy issued by the plaintiff in front of the Romanian

consulate of New York, such a formality was no longer necessary, the

Hague Convention not being applicable to the documents concluded by

the diplomatic or consular agents, according to the expressly stated

dispositions of article 1 line (3) of the convention, an opinion that we are

acceding to. The document concluded by the Romanian diplomatic

agency has the proving power of an authentic ac,t on the basis of article 8

letter b) of the Law no. 36/199528.

In the Decision no. 5053/24.04.2006 of the Romanian Supreme

Court of Justice, the IVth Civil and Intellectual Property Section, is to be

found an example of the exemption of apostille imprinting formality application.

In article 3 line (2) of the Hague Convention it is stipulated the fact that

the formality mentioned in line (1) (the apostille) cannot be requested

when, by means of an agreement between two or more states, this

formality is eliminated, simplified or the act is exempted from over

legalization. In article 14 of the Decree no. 368/1976 it is stipulated that,

in the civil and commercial legal relations between Romania and Belgium,

the documents that are issued by the judiciary authorities of one of the

two states and that are having their seal, as well as the documents to

which they are ascertaining the date, the signature veracity or the

conformity with the original, are exempted from any legalization, when

these have to be used on the other state territory.

In respect to the provisions of these two acts and that are

applicable to the bilateral relations between Romania and Belgium, the

appeal court of justice has correctly appreciated that the proxy of the

respondent plaintiff, that is concluded in authentic form by a public

28 Şerban Alexandru Stănescu, op. cit., pp. 185-194; Romanian Supreme Court of Justice, Decision no. 963/2005.


73

notary, fits into the writings category, which, according to the article 14 of

the bilateral convention, are exempted from the apostille imprinting

formality. The fact that Romania has adhered to the Hague Convention to

an ulterior date, after the bilateral Convention was signed, without any

reserves, does not mean that the bilateral Convention is no longer

producing effects29.

In the French-Romanian bilateral relations the apostille imprinting

formality is eliminated, on the basis of articles 9-10 of the Convention

between the Romanian Socialist Republic and the French Republic

regarding the juridical assistance in civil and commercial matters, adopted

in Paris on 5.11.1974, ratified by de Romania by way of Decree no.

77/1975, and in the bilateral Romanian-Austrian relations – on the basis

of article 25 of the Convention between the Romanian Socialist Republic

and the Austrian Republic regarding the juridical assistance in civil and

family matters and regarding the validity and the acts transmission,

adopted in Vienna on 17.11.1965, ratified by de Romania by way of

Decree no. 1179/1968.

References

A. Treatises, monographies, university courses and other speciality works:

ANDONE Raluca-Oana, Drept civil. Persoanele - în reglementarea

Noului Cod Civil (Civil Law.The natural persons and the legal

entities – in the new Civil Code regulation) – electronic form

university course support, Iaşi, 2012.

COJOCARU Violeta, Recunoaşterea şi executarea hotărârilor

judecătoreşti străine în materie civilă în Republica Moldova (The

acknowledgement and the execution of the civil foreign

judgements in the Republic of Moldova), The Moldova State

University publishing center, Kishinev, 2007.

FILIPESCU Ion, Drept internaţional privat (International Private Law),

Actami publishing house, Bucharest, 1999.

FILIPESCU Ion, FILIPESCU Andrei, Tratat de drept internaţional privat

(International private law treatise), Universul Juridic publishing

29 Şerban Alexandru Stănescu, op. cit., pp. 171-175; Romanian Supreme Court of Justice, Decision no. 5053/2006.

Raluca-Oana ANDONE

74

house, Bucharest, 2007.

FONGARO Eric, La loi applicable à la preuve en droit international

privé, Librairie générale de droit et de jurisprudence, Paris, 2004.

GHEORGHIU Gheorghe, ENACHE Nicoleta, Drept internaţional

privat. Caiet de seminar (Private international law. Seminar

Notebook), C.H. Beck publishing house, Bucharest, 2009, p.

239-242.

MACOVEI Ioan, Drept internaţional privat - în reglementarea Noului

Cod civil şi de procedură civilă (Private international law – in the

new Civil Code and new Civil Procedure Code regulation), C. H.

Beck publishing house, Bucharest, 2011.

SITARU Dragoş Alexandru, Drept internaţional privat (Private

international law), Lumina Lex publishing house, Bucharest,

2001.

STĂNESCU Şerban Alexandru, Drept internaţional privat. Practică

judiciară (Private international law. Jurisprudence), Hamangiu

publishing house, Bucharest, 2008.

B. Scientific papers and studies:

ANDONE Raluca-Oana, Modificări aduse de Noul Cod civil în materia

Dreptului civil. Partea generală. Persoanele. Drepturile reale şi în

domeniul Dreptului internaţional privat (Modifications brought

by the new Civil Code in the area of the Civil Law. General Part.

The natural persons and the legal entities. The rights in rem and

in the area of Private International Law), „Jurnalul de studii

juridice (Journal of legal studies)” no. 1/2011 - Supplement for

the scientific communications from the International

Conference of 21st-22nd of April 2011 „The legislation reform

in the area of Civil Law”, p. 61-81.

ANDONE Raluca-Oana, Norme conflictuale privind forma actului

juridic cuprinse în Noul Cod civil şi în Regulamentul (CE)

nr.593/2008 privind legea aplicabilă obligaţiilor contractuale -

Roma I (Conflict of law dispositions regarding the form of the

juridical act from the new Civil Code and from the EC

Regulation no. 593/2008 regarding the law applicable to

contract obligations –Rome I), „Dinamica dreptului românesc

după aderarea la Uniunea Europeană. Comunicări prezentate la

Sesiunea ştiinţifică din anul 2010 a Institutului de Cercetări


75

Juridice (The dynamics of the Romanian law after the EU

adhesion. Communications from the 2010 Scientific Session of

the Juridical Research Institute)”, Universul Juridic publishing

house, Bucharest, 2011, p.198-207.

COJOCARU Violeta, ANDONE Raluca-Oana, Reflectarea în literatura

de specialitate a aspectelor conflictuale privind condiţiile de

formă ale actului juridic (The speciality literature reflection on

the conflict of law aspects regarding the formal validity

conditions of the juridical act), „Revista Moldovenească de

Drept Internaţional şi Relaţii Internaţionale (Moldavian Journal

of International Law and International Relations)” no. 1/2011,

p.57-67.

KOHLER Marius, BUSCHBAUM Markus, La reconnaissance des actes

authentiques prévue pour les successions transfrontalières.

Réflexions critiques sur une approche douteuse entameé dans

l’harmonisation des règles de conflits de lois, „Revue critique de

droit international privé” nr. 4/2010, p. 629-653.

C. Regulations:

The Republic of Moldova Civil Procedure Code no. 225-XV/2003 (The

Republic of Moldova Official Monitor no. 111-

115/451/12.06.2003).

The Romanian Civil Procedure Code – Law no. 134/2010, (The Romanian

Official Monitor no. 485/15.07.2010, The Romanian Official

Monitor no. 545/03.08.2012).

Convention regarding the abolishing of the foreign official juridical acts legalization

condition from Hague of 1961, to which the Republic of Moldova

has acceded by way of Law no. 42-XVI/2006 (The Republic of

Moldova Official Monitor no. 47-50/24.03.2006), and to which

Romania has adhered by way of Law no. 52/2000 for the

approval of Emergency Government Ordinance no. 66/1999

(The Romanian Official Monitor no. 169/20.04.2000).

The Independent States Community Convention regarding regarding the juridical

assistance and the civil, family and penal juridical relations from 22

January 1993 from Minsk, ratified by the Republic of Moldova

Parliament Decision no. 402-XIII/1995, Tratate Internaţionale

(International treaties), vol. 16. 1999, p. 261.

The Treaty between the Republic of Moldova and the Russian Federation regarding

Raluca-Oana ANDONE

76

the juridical assistance and the civil, family and penal juridical relations

from 1993 from Moscow, ratified by the Republic of Moldova Parliament

Decision no. 260-XIII/1994, Tratate internaţionale (International

treaties), vol. 21, 1999, p. 49.

The Treaty between the Republic of Moldova and Ukraine regarding the juridical

assistance and the civil and penal juridical relations from 1993 from Kiev,

ratified by the Republic of Moldova Parliament Decision no.

261-XIII/1994, Tratate international (International treaties), vol. 22,

1999, p. 85.

The Treaty between Romania and the Republic of Moldova regarding the civil and

penal juridical assistance from 1996 from Kishinev, ratified by the

Republic of Moldova Parliament Decision no.1018-XIII/1996

(The Official Monitor of the Republic of Moldova no.

83/785/26.12.1996), available on-line at

http://www.mfa.gov.md/tratate-internationale-rm,

http://lex.justice.md, ratified by Romania by way of Law no.

177/1997 (The Romanian Official Monitor no. 310/13.11.1997).

Regulation no. 44/2001 of the European Parliament and of the Council regarding

the competence, the acknowledgement and the execution of the civil and

commercial judgements, (The European Union Official Journal no.

L12/16.01.2001, p.1-23), available on-line at http://eur-

lex.europa.eu.

D. Jurisprudence:

The Republic of Moldova Supreme Court of Justice, Decision no. 7/1998

on the practice of the courts of justice application of several

legal dispositions regarding the acknowledgement of the foreign

judgements on the rerritory of the Republic of Moldova in the

patrimonial and nonpatrimonial law suits, available on-line at

http://csj.md.

Romanian Supreme Court of Justice, Decision no. 963/2005.

Romanian Supreme Court of Justice, Decision no. 5205/2007.

The Republic of Moldova Supreme Court of Justice, Decision no. 2re-

232/2008, available on-line at http://csj.md.

The Republic of Moldova Supreme Court of Justice, Decision no. 2re-

9/2011, available on-line at http://csj.md.


77

E. Internet sources:

http://csj.md.

http://eur-lex.europa.eu.

http://lex.justice.md.

http://www.mfa.gov.md/tratate-internationale-rm.

http://csj.md/

http://eur-lex.europa.eu/

http://lex.justice.md/


Eduard BOISTEANU, Iulia DRUMEA

78

The Legal Status of the Elected Employees’ Representatives in the …

79

THE LEGAL STATUS OF THE ELECTED EMPLOYEES’ REPRESENTATIVES IN THE

COMMUNITY NORMATIVE ACTS AND LEGISLATION OF THE REPUBLIC OF MOLDOVA

Eduard BOISTEANU1 Iulia DRUMEA2

Abstract: The Republic of Moldova has recently registered a downward trend in the

unionization rate and trust in trade unions, phenomena which have led to the need to identify

some ways of representing the employees in the negotiation of collective agreements and settlement

of collective labour disputes. The Moldovan legislator has responded to these trends by

enshrining the legal institution of the elected employees’ representatives as an alternative to

unions.

In this article the authors have researched the community normative acts and the

Moldovan legislation pertaining to the legal status of the elected employees’ representatives. In

this context, the authors have formulated a definition of the elected employees’ representatives

and have additionally outlined a series of general conclusions pertaining to the field under

consideration such as: the Moldovan law enshrines the monopoly of the primary trade union

organizations in the negotiation and conclusion of collective labour agreements and the initiation

and resolution of collective labour disputes. However, if there is no primary trade union

organization within the entity, the collective rights (the right to entity administration, the right

to collective bargaining etc.) may be exercised by the elected employees’ representatives.

Keywords: social partnership in the labour sphere, social dialogue, bipartism, tripartism, social

partners, trade unions, employers’ organisations, elected employees’ representatives

1 Associate Professor PhD, “Alecu Russo” Balti State University, [email protected]; 2 MA in Law, University Lecturer, State University of Moldova, [email protected].


80

The slowing down of the trade unions modernization process and

decrease in the unionization rate across Europe has led to the need to

identify some ways of representing the employees in the negotiation of

collective agreements and settlement of collective labor disputes.

The Moldovan legislator has responded to these trends by

enshrining the institution of the elected employees’ representatives as an

alternative to unions. We invoke, in this case, the provisions of Art. 21

para. (2) of the Labour Code of the Republic of Moldova (hereinafter -

LC of RM) (Published in: MO al RM, nr. 159-162 din 29.07.2003.),

according to which in the entities where trade unions have not been set

up, the employees’ interests can be defended by their elected

representatives. Therefore, the coexistence of these two legal institutions

is excluded.

The conclusion that can be drawn from this legal text is the

following: the existence of the elected employees’ representatives is not

mandatory; labor law provides a possibility but not an obligation for

employees to elect their representatives.

Analyzing the instruments of the International Labour

Organization (hereinafter - ILO), in particular the Recommendation nr.

91/1951 on collective agreements, we conclude that the ILO gives

preference to trade unions as part of collective bargaining and refers to

non-union workers’ representatives only in the absence of such

organizations. Consequently, the Trade Union Freedom Committee of the

International Labour Office Board noted that: “In such circumstances, a

direct negotiation between the management of the company and its staff

aimed to ignore the representative organizations may, in some cases,

contradict the principle according to which collective bargaining between

employers and unions should be encouraged and promoted.” (Dimitriu,

(2007), : 53).

This situation is different from that of the developed European

countries, where more opportunities for democratic representation of

employees are enshrined in the legislation, such as: works councils, group

of undertakings councils, staff delegates.

Thus, at the European Union level, the right to establish

European Works Councils was regulated by Directive 94/45/EC “On the

establishment of a European Works Council or a procedure in

Community-scale undertakings and Community-scale groups of

undertakings for the purposes of informing and consulting employees” of


81

22 September 1994 (Published in: Official Journal of the EU nr. L 254 of

30 September 1994) for undertakings or groups of undertakings with at

least 1 000 employees within the Member States of the European Union

and other countries of the European Economic Area, with at least 150

employees in at least two Member States.

Considering the evolving legislative, economic and social

framework, it was necessary to modernize and reform this legal

framework (Moarcas Costea, (2012), : 102). This occurred after the

adoption of Directive 2009/38/EC of the European Parliament and of

the Council “On the establishment of a European Works Council or a

procedure in Community-scale undertakings and Community-scale groups

of undertakings for the purposes of informing and consulting employees”

of 6 May, 2009 (Published in: Official Journal of the EU nr. L 122 of 16

May 2009) under which the European Works Councils were set up and

have been functioning since 6 June 2011.

Although the Council Directive 2009/38/EC addresses the

Member States, it actually refers to Community-scale undertakings, with a

labour law goal – of informing and consulting employees (Tofan, M.,.

Petrişor, M., B., (2013), : 65). Thus, the stipulations of this Directive shall

apply to: a) Community-scale undertakings as defined in Art. 2 of Council

Directive 2009/38/EC as undertakings employing at least 1000 employees

within the Member States and at least 150 employees in each of at least

two different EU Member States; b) Community-scale groups of

undertakings, defined as a group of undertakings with the following

characteristics: at least 1,000 employees within the Member States; at least

two group undertakings in different Member States; and at least one

group undertaking with at least 150 employees in one Member State and

at least one other group undertaking with at least 150 employees in

another Member State;

According to Art. 1 para. (1) of Council Directive 2009/38/EC,

the purpose of the directive under consideration is to improve the right to

information and to consultation of employees in Community-scale

undertakings and Community-scale groups of undertakings. To that end, a

European Works Council or a procedure for informing and consulting

employees is to be established in every Community-scale undertaking and

every Community-scale group of undertakings.

Therefore, Council Directive 2009/38/EC includes two ways

through which the pursued aim can be achieved: 1) establishment of a


82

European Works Council; 2) establishment of a special procedure for

social dialogue within Community-scale undertakings.

In order to achieve the objectives set by Council Directive

2009/38/EC, it is required that a special negotiating body, composed as

follows, is established (Gidro, (2013), : 319): a) each Member State is free

to decide the establishment of a special negotiating body by appointment

or election procedure on its territory; b) the appointment or election of

members of the special negotiating body is proportional to the number of

employees employed in each Member State by the Community-scale

undertaking or Community-scale group of undertakings, by allocating in

respect of each Member State one seat per portion of employees

employed in that Member State amounting to 10 %, or a fraction thereof,

of the number of employees employed in all the Member States taken

together.

Once the special negotiating body has been appointed, at the

initiative of central management, a written agreement will be reached with

the purpose to create a European Works Council which duty is to inform

and consult employees.

The central management convenes at least once a year, a meeting

with the European Works Council in order to inform and consult on the

development of Community-scale undertaking or Community -scale

group of undertakings and its prospects.

Showing no interest in the advanced experience of Western

countries on more possibilities of employees’ representation, the

Moldovan legislator puts more emphasis on representing and defending

employees’ rights and interests through unions, giving them duties which

are fulfilled by other structures that represent employees in other

countries.

In this context, we note that the Republic of Moldova has the

difficult task to adjust the labour legislation pertaining to social dialogue

to Community acquis requirements, a mission that has its foundation in

Art. 37 of the Association Agreement between the EU and Moldova

(http://gov.md/public/files/2013/ianuarie_2014/ACORD_RM-

UE_1.pdf). Moreover, Chapter 4 of Title IV of the Agreement under

consideration is dedicated to cooperation in the sphere of employment,

social policy and ensuring equal opportunities. Thus, in accordance with

Art. 31 of the Association Agreement, the parties shall strengthen their

dialogue and cooperation on promoting decent work agenda, employment

http://gov.md/public/files/2013/ianuarie_2014/ACORD_RM-UE_1.pdf



83

policy, health and safety at work, social dialogue, social protection, social

inclusion, gender equality and anti-discrimination and social rights, and

thereby contribute to the promotion of more and better jobs, poverty

reduction, enhanced social cohesion, sustainable development and

improved quality of life. Moreover, among the issues that may be subject

of cooperation between the EU and the Republic of Moldova, there are

also those focusing on enhancing the participation of social partners and promoting

social dialogue, including through strengthening the capacity of all relevant stakeholders.

(Art. 32 let. h) of the Association Agreement).

Analyzing the list of Community instruments to be translated into

the Moldovan legislation (this list is presented in Annex III to the

Association Agreement), we note that the parties, exposing a lot of EU

directives in the field of non-discrimination and workplace safety, have

omitted some Community normative acts in the field of social dialogue

(with the exception of Directive 2002/14/EC of the European Parliament

and of the Council of 11 March 2002 establishing a general framework for

informing and consulting employees in the European Community

(Published in: Official Journal of the EU nr. L 80 of 23.03.2002). We are

of the opinion that the following Community acts relating to social

dialogue issues have to be transposed into the legislation of the Republic

of Moldova:

Table 1. The harmonization process of the legislation of the Republic of Moldova in the field of social partnership (dialogue) with the Community acquis

Community normative

act proposed for transposition

The national normative act proposed for

adoption (amendment, supplementation)

Time frame

Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community

a) amending and supplementing the Labour Code of the Republic of Moldova; b) amending and supplementing the Law No.1129-XIV/2000 on Trade Unions and Law No. 976-XIV/2000 on Employers’ Organisations.

The provisions of the Directive under consideration shall be implemented within three years after the entry into force of the Association Agreement.


84

Commission Decision 98/500/EC of 20 May 1998 on the establishment of Sectoral Dialogue Committees promoting the Dialogue between the social partners at European level

a) amending and supplementing the Law No.1129-XIV/2000 on Trade Unions and Law No. 976-XIV/2000 on Employers’ Organisations. b) amending and supplementing the Law on the organization and functioning of the National Commission for consultation and collective bargaining and of commissions for consultation and collective bargaining at sectoral and territorial level (no. 245-XVI/2006).

This Community instrument cannot be found in Annex III of the Association Agreement and, therefore, it is not possible to identify any official timetable for its implementation

Directive 2009/38/EC of the European Parliament and of the Council “On the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees” of 6 May, 2009

Draft law on the establishment of works councils or of a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees.

This Directive cannot be found in Annex III of the Association Agreement and, therefore, it is not possible to identify any official timetable for its implementation

Thus, the Moldovan legislator has to align the national legislation

to the standards of Directive 2002/14/EC of the European Parliament

and of the Council of 11 March 2002 establishing a general framework for

informing and consulting employees in the European Community,

enshrining, at the same time, a new regulation on the institution of the

elected employees’ representatives.

Having as a fundamental objective the establishment of a general

framework that sets out minimum requirements for the right to


85

information and consultation of employees in undertakings and

establishments within the Community, Council Directive 2002/14/EC

guarantees (Voiculescu, (2005), :158): a) information on the recent and

probable development of the undertaking's or the establishment's

activities and economic situation; (b) information and consultation on the

situation, structure and probable development of employment within the

undertaking or establishment and on any anticipatory measures envisaged,

in particular where there is a threat to employment; (c) information and

consultation on decisions likely to lead to substantial changes in work

organisation or in contractual relations.

As the Romanian author Nicolae Voiculescu noted (Voiculescu,

(2005), :158), transparency, in terms of social partners’ access to economic

information, is considered, within the community area, as essential in the

process of restructuring and adapting to the new conditions of economic

globalization.

Taking into account the provisions of Art. 21 of the LC of RM,

employees’ representatives are elected within the general assembly

meeting (conference) of the employees, with the vote of at least half of

the total number of the entity employees (delegates). The empowerments

of the elected employees’ representatives, manner of their performance, as

well as the duration and limits of their mandate, is established by the

general assembly meeting (conference) of employees in a normative act at

entity level.

Interpreting the aforementioned legal provisions, we conclude that

the term “elected employees’ representatives” refers to employees elected

within the general assembly meeting (conference) of employees in the

entities where trade unions have not been set up for promoting and

defending employees’ rights.

Regarding the organization of the elected employees’

representatives, their number is determined by the same general assembly

meeting (conference) of employees, taking into account the number of

staff in the entity. Furthermore, according to the Art. 21 para. (5) of the

LC of RM, the empowerments of the elected employees’ representatives,

manner of their performance, as well as the duration and limits of their

mandate, shall be established by the general assembly meeting

(conference) of employees in a normative act at entity level.

In our view, the syntagm “in a normative act at entity level”

conveys an imperfect character to this legal provision, giving ground for


86

different interpretations. Why does the legislator consider that the

empowerments of the elected employees’ representatives, manner of their

performance and other important aspects are to be established in a local

normative act? This legal provision is difficult to understand, especially if

we consider the provisions of Art. 10 para. (1) let. e) of the LC of RM

based on which the issuance of normative acts at the entity level lies in the

exclusive competence of the employer.

Therefore, the analysis of the provisions of Art. 21 para. (5), Art.

10 para. (1) let. e) of the LC of RM shows that the employer is the one

who ultimately drafts the empowerments of the elected employees’

representatives, establishes the manner of their performance, and decides

on other important aspects pertaining to the legal status of the other social

partner.

Also, it is not clear why the activity of a social partner having the

status of an ad hoc body is subject to regulations comprised in a local

normative act. We are of the opinion that it would be enough to register

the empowerments of the elected employees’ representatives in a minute

or in another document of the general assembly meeting (conference) of

employees.

The above-mentioned legal provisions lead us to the conclusion that, unlike

trade unions, the elected employees’ representatives are not entirely independent in

relationship to employer when it comes to organisational aspects.

Unlike union leaders, the elected employees’ representatives do

not benefit from the legal guarantees established in Art. 387-388 in the LC

of RM. With regard to the matter of collective bargaining, the provisions

of Art. 29 para. (3) of the LC of RM shall be applied to them, according to

which the employees’ representatives who participate in collective

bargaining, during the time the negotiations are carried on, cannot be

subject to disciplinary sanctions, transferred to another work or dismissed

without prior consent of the body which empowered them, with the

exception of the dismissal cases stipulated by the LC of RM for

committing some disciplinary breaches.

We reiterate the idea that trade unions are legal persons of private

law, representing a collective subject of law, with all the rights and

obligations that the legislation of the RM provides for these subjects of

law. In contrast, the employees’ elected representatives do not enjoy legal

personality and, therefore, cannot be patrimony holders, cannot conclude

various contracts or agreements with other natural or legal persons (with


87

the exception, of course, of the possibility to negotiate and conclude

collective agreements) and cannot act as a plaintiff or defendant in courts

of law. (Moarcas, C.,A., Popoviciu, A., C., (2013), : 55-59)

Regarding the duties of the elected employees’ representatives, we

note that they target not only the issue of collective bargaining, but have a

rather general nature. The elected employees’ representatives may initiate

and also participate in the resolution of collective labour disputes.

Such a conclusion is based on the provisions of Art. 358 para. (1)

and Art. 359 para. (2), (4) of the LC of RM, in which the legislator refers

to the generic term of “employees’ representatives”. In addition, we note

that the legislation of the RM admits the (wildcat) strikes in an entity

where there are no trade unions.

We note that in other legal systems (e.g. in Belgium) the conflict

of interests involving non-union employees can be appropriated and

continued by the union (Dimitriu, (2007), :50).

Also, if we refer to the existing normative framework on the legal

status of the elected employees' representatives, we observe that the

Moldovan legislator has a reticent attitude towards the requirements

imposed on these representatives. In this context, we advocate for a

legislative solution that that would give employees the possibility to elect

as their representatives only those employees who have full legal capacity,

i.e. those employees who have reached the age of 18. On the contrary,

minor employees should exercise the right to freedom of association

under the same conditions as adult employees, they being able to become

union members without the written consent of parents or legal guardians

(Moarcas Costea, Popoviciu, (2012), : 56).

Generalizing the aforementioned issues, we note that our legal

system enshrines the monopoly of primary trade union organizations in

collective bargaining and conclusion of collective agreements, as well as in

the initiation and resolution of collective labor disputes. However, if there

is no primary trade union organization within the entity, the collective

rights (the right to entity administration, the right to collective bargaining

etc.) may be exercised by the employees’ elected representatives.

Thus, the Moldovan legislator has made an important step

towards the generalization of social partnership (dialogue) by harmonizing

the national legislation with the principles and norms of international

labor law.


88

In this regard, we note that, according to Art. 3 of the ILO

Convention no. 135/1971 on the Protection and Facilities to be Afforded to Workers'

Representatives in the Undertaking, workers’ representatives are the persons,

recognized as such under national law or practice, whether they are: a)

trade union representatives, namely, representatives designated or elected

by trade unions or by members of such unions; or b) elected representatives,

namely, representatives who are freely elected by the workers of the undertaking in

accordance with provisions of national laws or regulations or of collective agreements and

whose functions do not include activities which are recognised as the exclusive prerogative

of trade unions in the country concerned.

References:

I. Manuals, treatises, monographs

Dimitriu R. (2007), Legea privind solutionarea conflictelor de muncă.

Comentarii şi explicatii, C.H. Beck, Bucureşti, Romania.

Gidro R. (2013), Dreptul muncii, Editura Universul Juridic, Bucuresti,

Romania.

Moarcas Costea C., A. (2012), Dreptul colectiv al muncii, C.H. Beck,

Bucuresti, Romania.

Ticlea A. (2012), Dreptul muncii, Ed. a 5-a, rev. si actualizata, Editura

Universul Juridic, Bucureşti, Romania.

Tofan, M.,. Petrisor, M., B. (2013), Dreptul muncii. Curs universitar,

Editura Hamangiu, Bucuresti, Romania.

Voiculescu N. (2005), Drept comunitar al muncii, Editura Rosetti,

Bucuresti, Romania.

II. Scientific papers

Moarcas Costea, C., A.,. Popoviciu, A., C., (2013), Reprezentarea

salariatilor la negocierea contractelor colective de munca si in

cadrul conflictelor colective de munca în lumina Legii nr.

40/2011 si a Legii nr. 62/2011. In: Aspecte controversate in

interpretarea si aplicarea prevederilor Codului muncii si ale Legii

dialogului social: in honorem prof. univ. dr. Ion Traian

Stefanescu / ed. vol.: Marioara Tichindelean, Monica Gheorghe,

Editura Universul Juridic, Bucuresti, Romania.


89

III. Regulations

Directive 94/45/EC “On the establishment of a European Works

Council or a procedure in Community-scale undertakings and

Community-scale groups of undertakings for the purposes of

informing and consulting employees” of 22 September 1994.

Published in: Official Journal of the EU nr. L 254 of 30

September 1994.

Directive 2009/38/EC of the European Parliament and of the Council

“On the establishment of a European Works Council or a

procedure in Community-scale undertakings and Community-

scale groups of undertakings for the purposes of informing and

consulting employees” of 6 May, 2009. Published in: Official

Journal of the EU nr. L 122 of 16 May 2009.

Directive 2002/14/EC of the European Parliament and of the Council

of 11 March 2002 establishing a general framework for

informing and consulting employees in the European

Community. Published in: Official Journal of the EU nr. L 80 of

23.03.2002.

Codul muncii al Republicii Moldova adoptat prin Legea R.M. nr. 154-XV

din 28.03.2003, Monitorul Oficial al Republicii Moldova, nr.

159-162 din 29.07.2003.

IV. Web pages http://gov.md/public/files/2013/ianuarie_2014/ACORD_RM-UE_1.pdf (accessed 20 March 2014).




90

The Local Public Administration in the Republic of Moldova

91

THE LOCAL PUBLIC ADMINISTRATION IN THE REPUBLIC OF MOLDOVA

Ana-Maria AMBROSĂ1

Abstract:

The Republic of Moldova is currently undergoing a complex process of administrative

reorganization, in accordance with the European principles of autonomy and subsidiarity. As

part of the process there can be identified several stages whose content is defined by the degree of

separation of the political power from the Soviet administration pattern. Moldova’s transition

from the rayonal administration system to one based on counties, only to return to the rayonal

pattern, expresses the febrile attempts of a society which is trying to define its own identity in the

midst of the democratization process. In the context of this process one cannot help noticing „the

Moldavian paradox”, namely the fact that there are no less than ten laws proclaiming

autonomy and decentralization, while the administrative practice is rather centralist, non-

autonomous due to the lack of political will in enforcing legislation and to the insufficient

financial resources necessary to exert real autonomy.

Key-words: administrative reorganization, separation of the political power, democratization

process, public administration system

1 Lecturer Ph.D. student, “Petre Andrei” University from Iaşi, [email protected]

Ana-Maria AMBROSĂ

92

The functioning principles of the public administration system

The public administration system encompasses the ensemble of

institutions and people (career civil servants and politicians) that ensure

the proper functioning of the state. In order to achieve its fundamental

purpose – represented by the public good –, the administration system

provides public services and implements laws and other normative acts which regulate

the life of the community. The administrative bodies invested with public

authority form an integrated system, within which there can be

distinguished two levels: a) state administration (or central); b) local public

administration (consisting of territorial-administrative units, according to

the principles of autonomy, decentralization and local authority eligibility).

The local public administration system is defined as opposed to the

central administrative authority of the state, starting from the idea that any local

community (comprising all the inhabitants of a territorial-administrative

unit) has specific problems and interests which it is entitled to manage

autonomously. Nowadays local autonomy is a fundamental legal and political

principle according to which democratic administrative institutions

function, manifesting itself at the decision-making, organisational,

financial and budgetary levels. But things have not always been as such.

Until a few decades ago the state administration had priority over local

authorities, the centralism and hierarchal subordination of the system

placing the local authorities in the position of mere executants of the

orders received from the capital city; later on, as a result of a long

decentralization process, localism became a priority.

The administrative decentralization is the political and judicial

process that was initiated during the last decades of the 20th century by all

the democratic states with centralist tradition. The purpose of the process

is to redefine the relation between central and local authorities by

transferring the power of decision to the latter and by consolidating the

autonomy of local communities. The process first took place under the

form of deconcentration, followed afterwards by territorial-administrative

decentralization.

The programmatic document that stimulated decentralization and

the autonomy of the local communities in the European area was the

European Charter: the Autonomous Exercise of the Local Authority (commonly

called the European Charter of Local Self-Government), document adopted by

the Council of Europe on October 15th, 1985. The Charter distinguishes


93

between: basic local communities (communes, districts, departments) and

regional communities. According to the same document, local autonomy

is seen as a principle established by the Constitution or the laws of the

member states. This principle gives the local authorities the right and the

ability to solve and manage a substantial share of public affairs, within the

law, under their own responsibility and in the interest of their population.

The exercise of this right is conferred on councils and assemblies

consisting of members elected by free, secret, equal and universal vote

which can dispose of executive organs which are accountable to them.

The Republic of Moldova ratified the European Charter of Local Self-

Government on July 16th, 1997, but it came into force on the February 1st,

1998.

The optimal functioning of the administrative services is not

achieved only by ensuring their proximity to the citizens or their

democratic control, but also by complying with a series of principles

regarding legality and effectiveness. The European Administrative Space

therefore follows such guiding principles as: reliability and predictability (legal

certainty); openness and transparency; responsibility; efficiency and effectiveness.

In the Republic of Moldova, the principles according to which the

local administrative authorities function can be found in the articles 109-

113 of the Constitution as well as in the laws

regarding the decentralization, regionalization and the local public

administration system.

Article 3 of Law no. 435 of 28.12.2006 on administrative

decentralization, stipulates the following principles: a) the principle of local

autonomy, which implies safeguarding the right and the effective ability of

the local public authorities to regulate and manage a substantial share of

public affairs, within the limits of the law, under their own responsibility

and in the interest of the population; b) the principle of subsidiarity, according

to which public responsibilities must be exercised by the authorities which

are closer to the citizens, with the exception of the cases where the

intervention of the higher authorities presents obvious advantages

resulting from the volume and the nature of the responsibilities and the

necessity to ensure the effectiveness of the public action; c) the principle of

equity, which implies guaranteeing equal conditions and opportunities to all

local public authorities in order to achieve their objectives in carrying out

their competencies; d) the integrity of the competencies: any competencies

assigned to local public authorities must have a full and exclusive

Ana-Maria AMBROSĂ

94

character and exercising it cannot be challenged or limited by another

authority except for the cases provided by the law; e) the principle of the

correspondence between resources and competencies, which implies the existence of

a correspondence between the financial and material resources allocated

to the local public authorities and the number and nature of the

competencies which are assigned to them in order to ensure they can be

effectively performed; f) the principle of financial solidarity, which refers to the

financial support offered by the state to the more underdeveloped

territorial-administrative units, especially by implementing equitable

sharing financial mechanisms (reallocating existing resources from the

state budget); g) the principle of institutional dialogue, according to which the

state involves the local public authorities, through their associative

structures, in the planning and decision-making processes by informing

and consulting them in due time with respect to any issue that regards

them directly or is connected to the administrative decentralization

process; h) the principle of public-private, public-public and public-civil partnerships,

which implies ensuring real cooperation opportunities between the

government, the local authorities, the private sector and the civil society; i)

the principle of the responsibility exercised by local public authorities, according to

which the local authorities are required, within the limits of their

competencies, to achieve the minimum quality standards established by

the law in the process of providing the public services and public utilities

they are responsible for.

The above mentioned principles are complemented by the ones

provided in article 3 of Law on Local Public Administration no. 436 from

December 28th, 2006:”(1) Public administration in territorial-administrative

units shall be based on the principles of local autonomy, decentralization

of public services, eligibility of the local public authorities and

consultation of the citizens on local issues of particular interest. (2) Local

public administration authorities shall benefit from decision-making,

organizational, administrative and financial autonomy; they shall have the

right to initiative in the administration of local public affairs and shall

exercise authority, under the terms of the law, within their established

territorial-administrative limits. (3) The application of the principles

outlined by the present article shall not impair the unitary and indivisible

character of the state.”


95

Moldovan administration, from the medieval to the post-soviet era

The organization of the local administration on the territory of the

present Republic of Moldova has historically evolved according to its

affiliation to various state structures (from the medieval Voivodate of

Moldavia, to the Tsarist Empire, then the Kingdom of Romania, the

Soviet Union, up to the independent state created after the dissolution of

the USSR).

During the feudal period, the territory of Moldavia was divided

into counties, towns and communes. The counties were ruled by chief

magistrates who were also in charge of the military leadership of the

garrisons that existed in the citadels. The towns were governed, on the

one hand, by a representative of the Ruler, called Vornic or Ureadnic; on

the other hand, they were also ruled by a council made up of twelve

pârgari and presided over by a Şoltuz. The town council was subordinated

to the Vornic who expressed the will of the Ruler. The administration

representatives of the feudal era were not paid public servants; their

incomes resulted from discretionary tax payment, from collecting part of

the fines imposed or from occasional payments made by common people

in exchange for solving certain issues.

In the modern era, the evolution of the territory between the Prut

and the Dniester was marked by the consequences of the Russo-Turkish

Treaty of Bucharest (1812), whereby a significant part of the Moldavian

Principality was ceded by the Ottomans to the Tsarist Empire despite the

fact they did not have the right. By signing the treaty, the Ottomans also

relinquished other territories they possessed: the Hotin raia and the

historical Bessarabia (Bugeac county, as the Turkish used to call it). The

Russians gave this entire territory the name of Bessarabia in order to give

it an identity by virtue of which they could subsequently claim other

possessions (belonging to the Basarab dynasty) from the Romanian

Principalities. The region occupied by the Russians had until 1828 the

status of a relatively autonomous province, preserving the county as

pattern of organization and the Moldovan traditional

customs/orderliness, despite the high degree of authority exercised by the

General Governor of Novorosia and Bessarabia. The administrative

regulation approved by the Tsar in August 1812 (Regulation on Introducing

the Provisional Administration in the Oblast of Bessarabia) was replaced in 1817

by a provisional law: Primary Organizational Law for the Oblast of Bessarabia

Ana-Maria AMBROSĂ

96

(Regulations on Establishing the Region of Bessarabia). The „provisional” system

existed for a rather extended period of time, up to 1828. Its existence

made possible the removal of more and more autonomous elements, thus

preparing the province for the introduction of the gubernia as

administrative unit. The Institute for the Administration of the Region of

Bessarabia – the new administrative act signed by the Tsar on February 2nd,

1828 – brought to an end the russification process, inclusively at the level

of the official language used by the administration system. On October

28th, 1873 Bessarabia was transformed into a gubernia, a status it

maintained until the end of 1917, when the Tsarist Empire fell apart as a

result of the Bolshevik2 Revolution. Against this background, on January

28th, 1918, the National Council convened at Chişinău proclaimed the

independence of Bessarabia as the Moldovan Democratic Republic. In

December 1917, the government in Chişinău had required and obtained

the support of Romanian troops in the process of liberating the territories

from the occupation of the Russian army units which were retreating (and

on a spontaneous plunder campaign) as a result of the Peace Treaty of

Brest-Litovsk.

On March 27th, 1918, shortly after removing the threat

represented by the disorganized Russian troops and the Bolshevik attacks,

the National Council decided in favour of a union with the Kingdom of

Romania. As part of the new state configuration, the Moldovan territory

kept the name of Bessarabia but was reorganized in territorial units named

counties. The Administrative Unification Law (no. 95 from June 13th,

1925) eliminated the Russian-type structures from Bessarabia (as well as

the Austrian and Austro-Hungarian-type structures from Bukovina and

Transylvania). The kingdom was divided into counties, which consisted of

rural and urban communes. The counties were divided into smaller

subunits called plăşi (which included several communes) and the urban

communes into sectors – the plăşi and the sectors lacked legal status. The

deliberative local authority of the communes and the counties was the

County Council which was made up of elected councillors (and in

addition women who were also co-opted as councillors - mandatorily in

the county capital and optionally in the other councils). The mayor was

the head of the communal administration and the prefect ruled over the

2 A detailed analysis of the evolution of the public administration system in Bessarabia during the period of the Tsarist Empire occupation was achieved by Ştefan Purici, in his book The History of Bessarabia (Semne Pulishing House, Bucharest, 2011).


97

county administration, as part of a centralist system. The centralizing

tendency of the administration system would be even further emphasized

by the Administration Law enacted in 1938, during the royal dictatorship.

The normative act added the land to the already existing administrative

units; the representative of the government in the land was the Royal

resident.

The Soviet occupation in 1940 and the establishment of the

Moldovan Social Socialist Republic were followed by the territorial

reorganization into rayons. From the level of the commune and the rayon,

to the one of the state, the management of the administration system was

attributed to the so-called „deputy soviets” – which were formally

introduced as democratic institutions elected by the people; in reality they

were governance tools of the Communist Party.

In 1991 the newly gained independence reopened the discussion

on the territorial-administrative organization and the public authorities’

organization, opinions on this issue being divided between the pro-Soviet,

the pro-Romanian and the European visions.

The post-Soviet normative acts from this area have been

elaborated under the form of „packages” of laws supplemented with

government decisions which regulated their implementation. The

normative process has known three important stages, in 1994, 1998 and

2006 (the latter being continued by the laws enacted in 2009, 2010 and

2012). The Moldovan specialists in administrative law, as for example

Victor Popa, Igor Munteanu and Victor Mocanu3, also operate additional

divisions into periods. They sustain the existence of a first period (1990-

1994) of transition from the Soviet era to the full independence of the

Moldovan State endowed with a democratic constitution. According to

the cited authors, the second stage lasted from the moment the Constitution

was adopted (July 29th, 1994) until December 1998, when the new laws

regarding the territorial-administrative organization and the local public

administration were enacted (laws which made possible a more consistent

application of the European principles of autonomy). The third stage is

opened by the administrative laws from 1998 under which the Soviet

system of territorial organization into 40 rayons was relinquished in favour

of the ten-county pattern (to which Chişinău and the Autonomous

Territorial Unit of Gagauzia – the former Taraclia rayon with a population

3 Victor Popa, Igor Munteanu and Victor Mocanu, From Centralism to Decentralization, Cartier Publishing House, Chişinău, 1998.

Ana-Maria AMBROSĂ

98

of approximately 44.000 inhabitants - were added). The fourth stage

(which occurred after the paper of the cited authors had been published)

begins in 2001 with the return to the rayon system decided by the Law on

the territorial-administrative organization of the Republic of Moldova, no.

764 from December 27th, 2001. Onto the new territorial structure, the

administration system undergoes a modernization process in the direction

of decentralization, initiated by the three laws elaborated in 2006 on

decentralization, regional development and local public administration.

Mihail Platon also describes the evolution of the Moldovan

administration system starting from the moment independence was

proclaimed (1991). In his opinion, during the 1991-1994 period, „the

efforts of implementing the administrative reform had an ad-hoc

character, aiming merely to adjust the old system to the new Moldovan

political, economic and social relations. Thus, the reform process took

into consideration the operational aspects and not the strategic ones.

Although the subjects of the reform perfectly understood the necessity of

giving up the old administrative system, the regulations and methods of

administration suffered only superficial changes. Public authorities were

especially preoccupied with the provision of public services of vital

importance, such as communal services, education and public health”4.

Such a situation can be explained by the fact that the authorities of the

time were undergoing a process of adaptation to the real mechanisms of

the central and local government in a period when the Communist Party –

the de facto power holder during the Soviet era- had been banned. The new

authorities had great difficulties in reforming due to fact that within the

hyper-centralized system they had inherited the government managed all

the administrative details and not only the major directions of public

policies. In addition, they lacked the necessary financial resources, the

expertise, not to mention the political determination to change.

The second stage of the administration reform identified by M.

Platon took place from 1994 to 1997. The body of laws issued during this

period established the premises of the new administration system. Then,

during the third stage (1998-2002), all efforts were channelled towards the

goal of improving the functioning of the public administration system.

Among the events that took place during this period mention must be

made of the Referendum in May 1999 (which took place at the same time

4 Mihail Platon, State Leadership. Problems, searches, solutions,”Universul” Publishing House, Chişinău, 2009, p. 153.


99

as the local elections), under which the population of the Moldovan

Republic (with a voter turnout of 58,3%) voted in favour of the

administrative reorganization under the form of counties and prefectures.

The conclusion drawn by the mentioned author was that none of the

three stages that marked the evolution of Moldovan administration was

successful. In 2001 in particular, due to the fact that the Parliament was

dominated by the Communists, some counter-reforms were passed that

had negative effects on the administration system: „First, in June 2001 the

Parliament adopted an Amendment to the Law of Public Administration

which annulled the authority of the local councils over the local budgets.

As a consequence, although local budgets were approved by local

councils, they were administered by the county prefects appointed by the

central government. At the same, time the Parliament amended the

Election Code, stipulating that the Mayors would be elected by the local

councils. As a response to the pressures exercised by the Constitutional

Court and The European Council, the Parliament reintroduced the

amendment regarding the direct election of the mayors. In December

2001, at the initiative of the communist faction, the Parliament passed the

Law regarding the territorial-administrative organization of the Republic

of Moldova by which the former organization system”5,”- based on

rayons – „was reinstated.” The amendment adopted by the Communist

majority diverged The Republic of Moldova from the pro-European

evolutionary pathway it had been following, distancing it from the

regionalization strategies. In order to consolidate this tendency, the

legislature adopted a new law on Local Public Administration, Law no.

123 from March 18th, 2003.

In our opinion, a synthetic analysis of the local administration

phenomenon in the Republic of Moldova is subsumed to a socio-political

history/account regarding the ability of the people who were socialized

under the Soviet regime to give up the central authoritarian paradigms in

order to accommodate some new democratic concepts and practices

based on civic freedom and the principle of subsidiarity. At the same time

there can be identified five key periods in the evolution of the judicial

system and of the political mentality: a) the first period finishes after the

enactment of the following laws: Law no. 306 from December 7th, 1994

regarding the territorial-administrative organization of the Republic of

Moldova; Law no. 310 from 07.12.1994 regarding the local public

5 Ibidem, p. 292.

Ana-Maria AMBROSĂ

100

administration system; b) the second legislative period includes Law no.

186-XIV of the Republic of Moldova from November 6th, 1998 regarding

the local public administration system, normative act which abolished the

territorial unit of the rayon and established the one of the county; c) the

third period consists of an act considered by most jurists „an

administrative counter-reform”, namely Law no. 764 from December 27th,

2001 regarding the territorial-administration system of the Republic of

Moldova; the respective normative act abolished the counties and

reinstated the administration system based on rayons; in March 2003 the

new law on local administration was issued; d) the fourth period includes

the package of laws approved in 2006, completed by the normative acts

issued in 2010: Law no. 435 from December 28th, 2006 on administrative

decentralization; Law no. 436 from December 28th, 2006 on the local

public administration system; Law no 438 from December 28th, 2006,

regarding regional development in the Republic of Moldova; Law no. 845

from December 18th, 2009, regarding the territorial offices of the State

Chancellery; The Government Decision no. 608 from July 5th, 2010,

regarding the implementation of some provisions stipulated by Law no.

435-XVI from December 28th, 2006, regarding administrative

decentralization; e) the fifth legislative period opened the way to possible

democratic consolidation processes in the field of the local public

administration system, according to Law no. 68 from April 5th, 2012,

regarding the approval of the National decentralization strategy and of the

Action plan on the implementation of the National decentralization

strategy for the 2012-2015 period.

The evolution of the local administration system during the period 1990-1994

After proclaiming independence from the USSR, the Moldovan

Parliament established a Permanent Commission of local self-governing

and local economy. Considering the factual situation created by the Law on

the foundation of local self-government (adopted on July 10th, 1991) and noticing

the conservatory/anti-reformatory general trend, the Commission

established working groups with the purpose of elaborating law projects

in the field of administration in accordance with the evolution of post-

communist European countries: one of the projects aimed at territorial

reorganization of the country, respectively the transition from 40 rayons

to 7-9 counties; another project referred to the structure and


101

responsibilities of the local public administration system, according to the

principles of the European Charter on Local Self-Government; the third

legislative project aimed at regulating the election process for the local

communities according to the model already existing in the consolidated

democracies of the West. Due to the opposition of the deputies who

represented the political party “The life of the village” (the future

Democratic Agrarian Party), the Parliament did not include the respective

projects on its agenda. In February 1994 the Parliament was dissolved so

that early elections could be held and the deep administrative reform was

put on hold for another four years.

Though dense and confuse, the legislation issued in 1994 regulated

the following general principles on the establishment and functioning of

the local administration system: local autonomy, decentralization of public

services, eligibility of the local public administration authorities and the

consultation of the citizens on matters of particular public interest (local

referendum).

As for the administrative division of the country, the smallest

territorial unit defined by the law was the village. Two or more villages

could form a commune; the chief village gave the name to the commune.

The following administrative echelon was the town; the towns of Chişinău

(the capital of the Republic), Bălţi, Bender and Tiraspol had the status of

municipalities. The rayon was the territorial-administrative unit consisting

of several villages (communes) and cities, unified by territory, economic,

social and cultural relations. The law also established territorial-

administrative units with special status (Găgăuzia) with the purpose of

preserving the national identity of a population.

Although professing local autonomy, decentralisation and

eligibility of the authorities, the 1994 legislation kept the centralised

hierarchic spirit of the soviet period. Thus, Article 6 of the Administration

Law (no. 310/1994), autonomy was “tempered down” by imposing a two-

levelled administrative system: firstly, there were the deliberative and the

executive authorities in villages (communes) and towns (councils and

town halls, respectively) and secondly, there were rayon and municipal

councils (as deliberative authorities), with presidents of executive rayon

committees and mayors of municipal towns as executive authorities.

Rayon and municipal councils coordinated the activity of rural

(communal) and urban authorities, with certain allowed competence

delegating from the former to the latter.

Ana-Maria AMBROSĂ

102

Article 18 of the Administration Law stipulated that mayors of

municipal towns and presidents of rayon executive committees were to be

elected by municipal and rayon councils, respectively, from among

councillors, upon governmental proposal and were to be further

confirmed by the President of the Republic. Should there have been two

denied nominations, it was upon the President of the Republic to appoint

mayors of municipalities or presidents of executive rayon committees.

Thus, the local authority eligibility principle was impaired, as it was

restricted merely to urban areas. Nevertheless, there existed the possibility

of central executives interfering with the election of mayors in communes

and towns: if local mayor elections were invalidated (by the territorial

judicial court) twice, consecutively, the President could appoint the mayor.

In the time period between the local elections in 1995 and 1999,

respectively, such regulations made it possible for as many as 92 local

communities (namely, 10% of all communities in the Republic) to have

centrally-appointed administrations, instead of democratically-elected

ones.

Article 44 of the Administration Law stipulated that mayors were

local councillors as well, which made the separation of deliberative and

executive authorities not possible. The same article in the law defined

mayors as heads of local administrations, thus placing them above the

deliberative authority.

Article 45 stipulated that mayors were “official territorial

representatives of the executive authority”, namely presidential

representatives having administrative tutelage attributes. It was completely

inadequate for the local executive power to exert such attributes. An

authority vested with the right of carrying into effect its duties based on

local autonomy couldn’t be, concurrently, a state administrative tutelage

authority, virtually over its own actions.

Article 55 of the above-mentioned law stipulated that mayors

could be revoked “upon request from one third of the constituents, from

the local council or from the hierarchically superior council”. Article 57 stated

that mayors and rayon executive committees could present their

resignations to the President of the Republic. Dismissal and resignation

regulations proved that the administrative system was centrally-designed,

without fully acknowledging local autonomy. Furthermore, regulations

diverging from the spirit of the Constitution and from the principles to

which the Republic of Moldova had adhered by ratifying certain


103

international treaties (such as the European Charter of Local Self-Government)

were abrogated by the Constitutional Court.

The 1998 administrative organization – relinquishing rayons

The Moldovan Law no. 186-XIV from November 6th,1998 regarding local

public administration introduced certain novelties regarding territorial

organization, as well as public authorities operating in administrative-

territorial units. Thus, the law introduced the county as a territorial unit,

replacing the rayon. The county had a Council elected by universal

suffrage, which, in its turn, elected a president and a vice-president, from

among the councillors.

The Government appointed a prefect for every county, who was

further confirmed by the President of the Republic. The prefect was head

of the deconcentrated public services and exerted administrative tutelage

(verifying the validity of actions in the case of local authorities). The

mandate of a prefect was similar in length to that of the government he

was appointed by.

According to the new legislation, the county and local councillors

decreased significantly in number. For instance, whereas under the 1994

Administration Law a locality of over 100,000 inhabitants had 39

councillors, the 1998 law provided merely 35 councillors for a locality

exceeding 500,000 inhabitants. In the case of the Municipal Council of

Chişinău the number of councillors was also reduced from 57 to merely

35. For a rayon having a population of 80,000 to 100,000 inhabitants 35

councillors would be elected. The number corresponded, according to the

new law, to counties of over 500,000 inhabitants. A new element

regarding population representation was the so-called “village delegate”,

elected by the voting-age population in villages which, following local

elections, did not have any councillors. The village delegate represented

the interests of his/her own village in the commune council. In the

municipality of Chişinău (the capital of the Republic), the executive

authority was called Mayor-General. All the above-mentioned stipulations

(except for those regarding the village delegate) made the local

administration in the Republic of Moldova rather similar to that of

Romania.

Ana-Maria AMBROSĂ

104

The 2001 administrative-territorial organization Following a short county-based administrative experience, Law no.

764 from December 27th, 2001 regarding the administrative-territorial organization of

the Republic of Moldova reinstated the rayon system. Under the new law, the

Government was obliged to create liquidation commissions to eliminate

counties, prefectures and other county authorities, in order to instate

rayons and the corresponding authorities. During the 2003 elections, the

citizens of Moldova would once again elect rayon authorities. The above-

mentioned territorial organization law also made provisions for the

localities left of the Dniester. They were awarded special forms and

conditions of autonomy.

Article 2 of Law no. 764 from December 27th, 2001, regarding the

administrative-territorial organization of the Republic of Moldova (which was

modified by Law no. -XIX from March 17th, 2011) stipulated the following:

“Dividing the territory of the country into administrative-territorial units

is meant to guarantee the implementation of certain principles: local

autonomy, public service decentralization, local public administration

eligibility, ensuring citizen access to governmental authorities and

consulting citizens in local matters of special interest”.

The administrative-territorial organization of the country included

two levels: rural areas (villages and communes) and urban areas (towns

and municipal towns) at the first level and rayons, the municipality of

Chişinău, as well as the Autonomous Territorial Unit of Găgăuzia, at the

second level (Article 4, Paragraph 4).

Article 5 of the above-mentioned law defined rural units: the

village and the commune. The village was an administrative-territorial unit

comprising the rural population connected by territory, geographical

conditions, economic, social and cultural relations, customs and traditions.

Two or more villages could join to form a single administrative-territorial

unit, called a commune. The village where the village (communal) councils

were situated was called a chief-village. The commune bore the same

name as the chief-village. A proper administrative-territorial unit could

establish itself if it had over 1500 inhabitants and the financial means

necessary to support the administrative apparatus. The Parliament could

grant derogations from this regulation, by organic laws.

Article 6 defined the urban unit, as an administrative-territorial

unit superior to the village (economically, socially and culturally),

comprising the urban population, having proper urban household,


105

industrial and commercial structures. Its population was employed mainly

in the industrial or public service sectors or in various intellectually-

centred fields, or was culturally or politically engaged. According to the

law, certain towns could be upgraded to municipalities. Article 7 stipulated

that a municipality was an urban-type locality having significant economic,

social, cultural, scientific, political and administrative roles within the

country, important industrial, commercial structures and educational,

health care and cultural establishments. A municipal status was ascribed to

the following localities: Chişinău, Bălţi, Bender, Comrat and Tiraspol. The

municipality of Chişinău comprised administrative-territorial units called

sectors, towns and villages (communes).

Article 10 brought under the regulation the rayon, which was

defined as an administrative-territorial unit comprising villages

(communes) and towns, connected by territory, economic, social and

cultural relations. The town where the rayonal council was situated was

called the chief town. The rayon and the chief town bore similar names.

The Republic of Moldova was divided into 32 rayons.

Article 11 defined several particular types of localities:

balneoclimateric resorts, railway junctions, historical centres, cultural

centres. Such statuses were granted by government decision.

Articles 15 and 16 referred to the Autonomous Territorial Unit of

Găgăuzia (comprising 32 localities, among which one municipality and

two towns) and to the localities left of the river Dniester, respectively. The

latter comprised 147 localities, including one municipality and 9 towns

and could be ascribed particular forms and conditions of autonomy.

All administrative-territorial units in the Republic of Moldova had

legal status and held their own property. They were organised according

to statutes drawn after frame-statutes approved by Parliament and

adopted by local councils. The status of the capital (Chişinău) and of the

special-regime autonomous regions was established by organic laws.

The 2006 legislative package - judicial basis for the present local administration system in the Republic of Moldova

Following the return to rayons, the Moldovan Parliament passed a

new legislative package regarding public administration. Its foundations

were laid in 2006 and it was amended in 2009 and 2010.

Law no. 436 from December 28th, 2006, regarding public local

administration established that administrative-territorial units were led by

Ana-Maria AMBROSĂ

106

both deliberative and executive authorities. Local councils of communes,

towns and municipalities and rayonal councils were deliberative

authorities, whereas mayors and rayon presidents were executive

authorities. All local administration authorities were elected by universal

suffrage, with the exception of rayon presidents.

Article 6 established the relations among administrative

authorities. It stipulated as follows: (1) Local and rayon councils, mayors

and rayon presidents operated as autonomous administrative authorities,

resolving public issues in villages (communes), towns (municipalities) and

rayons, in compliance with the law. (2) Relations between central and local

authorities were based on principles of autonomy, legality, transparency

and collaboration in solving joint matters. (3) There were no

subordinating relations either between central and local authorities or first

and second-level local authorities, except for cases stipulated by the law.

(4) Any type of administrative control exerted upon local public

authorities’ actions (by territorial offices of the State Chancellery – A/N)

had to have a sole purpose - ensuring abidance of law and constitutional

principles, and targeted inspections could only aim at evaluating the way

in which ascribed competences were carried into effect, in compliance

with the law. (5) Central public administration authorities conferred with

representative associations of local public administration authorities in

what concerned local public administration matters.

Local councils comprised councillors, their number depending

on the population size of the territorial-administrative unit (from 9 for

communes of maximum 1500 inhabitants to 43 for localities of over

200,000). The municipal council of Chişinău had 51 councillors, and its

sectors had the following numerical structure: Botanica – 25, Buiucani –

23, Centru – 23, Ciocana – 23, Râşcani – 25.

The mandates of local councils (four years in length) were

established by the Election Code. The former could be extended by

organic laws, only in cases of wars or catastrophes. Ordinary council

sessions (except for the council formation session) were summoned by

mayors, every three months. Extraordinary sessions could be summoned

upon necessity, their agendas being proposed by mayors/vice-mayors or

by one-third of the total number of councillors. There also were immediate

meetings of councils, in emergency situations. All sessions were public.

They were legally held and deliberative if a simple majority of elected


107

councillors attended. Each session had a president, elected by the

councillors and the president was assisted by a council secretary.

The local council attributes covered all economic and social

aspects in the community, from excises and taxes to local budgets, from

local public services to territory arrangement and local community

property management (putting into administration, tenanting, leasing, and

selling). Also, council attributes included: maintaining local infrastructure

and housing stock, establishing public institutions and locally-oriented

businesses (as well as their operating regimes), public order, fire and civil

protection services, the town hall organization charts and pay plans, co-

partnerships etc.; local councils elected and dismissed vice-mayors, upon

proposal from mayors, appointed council secretaries (following

competitive examinations) and they could also modify, suspend or

terminate their contracts.

While acting upon their responsibilities, councils gave decisions.

Ordinarily, decisions were adopted by majority votes of councillors

present. Decisions related to budgets, local community property

management, establishing local excise and tax rates, local development

planning, territory arrangement and co-partnership with other councils or

public (including foreign) institutions were made by majority vote of

elected councillors. Decisions to initiate mayor revocation procedures

were made by two-thirds voting majority of local councillors. Council

decisions were signed by session presidents or by other designated

councillors and countersigned by council secretaries. The latter could

refuse to countersign decisions which they considered illegal and could

request re-examinations. Secretaries remitted decisions they thought illegal

to the councils, mayors or to territorial offices of the State Chancellery,

accordingly (within five days of signing). Mayors could send decisions

which were thought illegal to territorial offices of the State Chancellery or

bring them before administrative courts.

Dissolution of councils was stipulated in Article 25 of the Public

Local Administration Law. Anticipatory dissolution occurred under the

following conditions: a) Councils repeatedly gave decisions, upon the

same matter, which were annulled by administrative courts, by definitive

judgements, for severely breeching constitutional stipulations or effectual

legislation; b) Councillors were reduced numerically to less than half the

legal number; c) Councils did not give any decisions for a period of six

consecutive months, regardless of session numbers. In the a) situation

Ana-Maria AMBROSĂ

108

mentioned above, the territorial offices of the State Chancellery or,

according to case, the mayors or the Government were entitled to initiate

court proceedings in order for local council dissolution circumstances to

be established. Rightful dissolutions of councils in cases b) and c) were

found upon by mayors and written notifications were issued, no later than

ten days of the dissolution dates, to the Central Election Commission,

which set the date for new local elections. The Parliament dissolved local

councils, upon justified request from mayors or the Government, based

on a definitive court judgement finding upon the circumstances which

justify dissolutions. The date of the new council elections was set by the

Central Election Commission, in compliance with the Election Code

provisions. Until new councils were established, current issues of the

administrative-territorial unit were to be solved by mayors.

The 2006 legislation preserved the village delegate institution (also

present in the 1998 Administration Law). Delegates were elected (with

mandates equal to those of local councils) in villages which did not have

any councillors following local elections. Elections occurred by majority

vote of citizens present at village general assemblies; the assemblies were

legal if attended by at least one third of the voting age citizens, in the

presence of mayors or vice-mayors.

Mayors locally represented the executive authority and their

statutes were regulated by articles 26 to 34 in the Local Administration

Law, as well as by Law no. 768 from February 2nd, 2000 regarding local electee

statute. Mayors were heads of public local administrations. They attended

local council sessions and were entitled to give opinions on all matters

under debate. The municipality of Chişinău had one general mayor and

sector mayors. In exerting their attributes, mayors were supported by vice-

mayors (up to four, as was the case of Chişinău). Vice-mayors were

elected by local councils, upon proposal by mayors; vice-mayor positions

ware not incompatible with those of councillors. Mayors traced down

responsibilities for vice-mayors.

Territorial courts confirmed election lawfulness and validated

mandates in the case of mayors, then territorial offices of the State

Chancellery were informed and judges presented the facts during the next

local council session or, as the case may be, during an extraordinary

session. In case of invalidation, new elections were organized.

Mayor suspension from office was regulated in Article 33 of Law

no. 436/2006. It could be decided solely by courts, in case mayors were


109

taken to court for committing certain crimes (suspensions were effective

until cases had definitive solutions and organizing new elections was not

accepted throughout the period). Organizing new mayor elections was not

accepted for the entire suspension period. If mayors were acquitted or

their cases were closed (except for amnesty situations), suspended mayors

were entitled to compensations, in compliance with the law, for the

damage suffered as a result. Mayors were reinstated for the remaining

period of their mandates. The same stipulations applied to vice-mayors.

Mayor mandates ceased ahead of term in cases as follow: a) office

incompatibility; b) impossibility to carry out responsibility for longer than

four consecutive months - medical reasons included; c) court convictions

going into effect; d) revocation by local referendums, in compliance with

the Election Code; e) resignation; f) death.

Article 29 stipulated the main attributes mayors had. Accordingly,

mayors had to: carry into effect local council decisions; submit town hall

and subordinated public services organisation charts, staffing tables, pay

plans, initiate or terminate employments, plan budgets and act as main

credit coordinators in the local community. Mayors were also responsible

for taking inventory of and managing public domain property; they led

and coordinated local public service actions, ensured the proper

functioning of registry courts and tutelary authorities; they contributed to

the proper functioning of public assistance and social services, granted

permits and licences, made proposals to local councils regarding the

organisation of local referendums; they represented local communities in

their relations to other communities, institutions, before legal courts etc.;

they presented annual reports to local councils regarding the state of local

communities and ensured intervention in emergency situations, in

collaboration with other abilitated institutions.

Rayon councils were representative authorities of rayon

inhabitants. Article 43 comprised their main attributes, which were rather

similar to those of local councils. One particular attribute was the election

of rayon presidents, from among councillors. Upon proposal from elected

presidents, councils elected or, as the case may be, dismissed rayon vice-

presidents. Councils appointed, following lawful competitive

examinations, rayon council secretaries and leaders of subordinated

institutions and divisions.

In the course of their four-year mandates, rayon councils held

ordinary sessions (summoned by rayon presidents), once every three

Ana-Maria AMBROSĂ

110

months, as well as extraordinary sessions (summoned by presidents or by

one-third of councillors). Sessions proceeded under supervision from one

councillor, assisted by the rayon secretary. The adopted decisions were

signed by session presidents and countersigned by secretaries.

Article 48 comprised the conditions under which rayon councils

could be dissolved before mandate expiration: a) councils deliberately and

repeatedly gave decisions, upon the same matter, which were annulled by

administrative courts, by definitive judgements, for severely breeching

constitutional stipulations or effectual legislation; b) councillors were

reduced numerically to less than half the legal number, proportionally to

the rayon population; c) Councils did not give any decisions for a period

of six consecutive months, regardless of session numbers. In the a)

situation mentioned above, territorial offices of the State Chancellery or

the Government initiated court actions to find upon the circumstances

justifying rayon council dissolution. Rightful dissolutions in situations like

b) and c) mentioned above were found upon by rayon presidents and

written notifications were sent, no later than within ten days of dissolution

dates, to the Central Election Commission, which set the date for

anticipated elections. The Parliament dissolved rayon councils, upon

justified request from rayon presidents or the Government, based on a

definitive court decision by which dissolution-justifying circumstances

were found upon. Until new councils were established, it was the

responsibility of rayon presidents to solve the current issues of the

administrative-territorial unit.

Rayon presidents were elected by councillors, with majority

votes of all elected councillors. In case proposed nominations were not

supported by majority votes of elected councillors, a new session was

summoned within eight days, to repeat voting. If there was still no

nomination supported by a majority vote of elected councillors, one

supplementary voting session would be organised within three days,

following which the candidate receiving the largest number of votes

became elected. A similar procedure applied to vice-presidents as well,

who were nominated by presidents. The vice-president position was not

incompatible with that of rayon councillor.

According to stipulations in Article 52, rayon presidents

functioned as operative managers of public services functioning at rayon

level. They were rayon representatives when relating to the Government

or other central authorities, to natural and legal persons within the country


111

or abroad, as well as before legal courts. Rayon presidents were public

service coordinators within rayons and acted as presidents of commissions

dealing with exceptional situations. Rayon presidents and vice-presidents

were legally bound by the Law regarding local electee statute. Rayon vice-

presidents carried out attributes assigned by rayon presidents and bore

responsibility in compliance with the effectual legislation.

While acting as executive public authorities, (namely, carrying into

effect council decisions), rayon presidents gave normative and individual

decisions, within their fields of competence. In exerting attributes

corresponding to their positions, rayon presidents were supported by

specialised functional structures, called rayon presidential apparatuses.

Rayon presidents could be relieved from office by two-third

majority votes from councillors, upon proposal from at least one third of

the latter. Vice-presidents could be dismissed upon proposal from

presidents or one-third of councillors, merely by a fifty percent plus one

vote from all councillors.

Perspective public local administration development in the Republic of Moldova

The Monitoring Report regarding local and regional democracy in

the Republic of Moldova, presented in Stockholm in February 2012,

during the Local and Regional Powers Assembly, read: “De jure, local

public authorities in the Republic of Moldova have formal autonomy, but

de facto it is an autonomy limited, on the one hand, by interference from

central public authorities in everyday actions of local authorities and, on

the other hand, by the insufficient financial resources allocated. An

additional explanation is a certain lack of clarity in ascribing competence

and finance distribution”6. The report mentioned a “Moldovan paradox”,

consisting in as many as ten laws professing autonomy and

decentralisation while the administration system was in practice rather a

centralised one, lacking autonomy, apparently because of the absence of

political will in enforcing legislation and because of insufficient financial

resources necessary to exert real autonomy.

6 Local and regional democracy in the Republic of Moldova, document presented before the Approval Monitoring Commission, during the Stockholm (Sweden) assembly, February 24th, 2012, in Vocea autorităţilor locale, informative bulletin for the Congress of Local Authorities in Moldova, no. 1/2012 www.calm.md

Ana-Maria AMBROSĂ

112

The document elaborated by rapporteurs Francis Lec (France) and

Ignacio Sanchez Amor (Spain) mentioned other functional faults in the

Moldovan administration, which had not been corrected after the

previous analysis and since the recommendations formulated in 2005.

Among them, there was the unclear separation of competences between

levels one and two of administrative-territorial units (namely, between

communes and towns, on the one hand and rayons, on the other), which

placed rayons in a superior position. Central authorities inadequately

perceived consultations of local authorities in issuing normative acts

concerning the latter, transforming consultations into purely formal

matters. Personnel policies and town hall expenditure were established by

the government; between 70 and 80% of local finances were represented

by special payments, of which local communities couldn’t dispose

autonomously.

The situation noticed by the foreign rapporteurs was also

acknowledged by the Chişinău government in Law no 68 from April 5th,

2012 regarding the approval of the National Decentralization Strategy and

of the Action Plan on the implementation of the National

Decentralization Strategy for the 2012-2015 period. Considering the

realities of the period, the Government’s Strategy proposed „the revision

of the relations existing between the local institutions subordinated to the

central authorities, on the one hand, and the elected local and rayonal

public authorities, on the other hand. The reporting and legal control

proceedings in relation to the higher levels of the administrative system

must ensure a broader local autonomy, and also a legal and professional

character to the local decisions and action. Achieving this aim requires a

comprehensive reform in all areas of competence and responsibilities

assigned to local public authorities. The strategy will also have to define

these new forms of administrative accountability by amending

approximately 40 normative acts that regulate the competencies of local

public authorities. The Government strongly supports the elaboration and

implementation of the present strategy in terms of human rights and

gender equality. The purpose of these principles (participation, non-

discrimination, transparency and accountability) is to improve the living

conditions of the population by granting increased and equitable access to

public services, to reinforce local democracy by means of intense local

participation, transparency and accountability of the local administrative

services and politics. Thus, by stimulating a development focused mainly


113

on the people, the Strategy will bring about changes beneficial for all

strata of society.”7

References:

Mihail Platon, State leadership. Problems, searches, solutions, ”Universul”

Publishing House, Chişinău, 2009.

Victor Popa, Igor Munteanu şi Victor Mocanu, From centralism to

decentralization, Cartier Publishing House, Chişinău, 1998.

Ştefan Purici, The History of Bessarabia, Semne Publishing House,

Bucharest, 2011.

Local and regional democracy in the Republic of Moldova, document presented

before the Approval Monitoring Commission, during the

Stockholm (Sweden) assembly, February 24th, 2012, in Vocea

autorităţilor locale, informative bulletin for the Congress of Local

Authorities in Moldova, no. 1/2012, www.calm.md

Law no. 306 from December 7th, 1994, regarding the administrative-

territorial organization of the Republic of Moldova.

Law no. 310 from December 7th, 1994, regarding local public

administration.

The Moldovan Law no. 186-XIV from November 6th, 1998, regarding

local public administration.

Law no. 764 from December 27th, 2001, regarding the administrative-

territorial organization of the Republic of Moldova.

Law no. 123 from March 18th, 2003, regarding public local administration.

Law no. 435 from December 28th, 2006, regarding administrative

decentralization.

Law no. 436 from December 28th, 2006, regarding public local

administration.

Law no. 438 from December 28th, 2006, regarding regional development

in the Republic of Moldova.

Law no. 845 from December 18th, 2009, regarding the territorial offices of

the State Chancellery. The Government Decision no. 608 from

July 5th, 2010, regarding the implementation of some provisions

7 Law no 68 from 05.04.2012 regarding the approval of the National decentralization strategy and of the Action plan on the implementation of the National decentralization strategy for the 2012-2015 period.

Ana-Maria AMBROSĂ

114

stipulated by Law no. 435-XVI from December 28th, 2006,

regarding administrative decentralization.

Law no. 68 from April 5th, 2012, regarding the approval of the National

decentralization strategy and of the Action plan on the

implementation of the National decentralization strategy for the

2012-2015 period.

The Legality of the State Authority from the Value Judgement to the ...

115

THE LEGALITY OF THE STATE AUTHORITY FROM THE VALUE JUDGEMENT TO THE

CONSTITUTIONAL JUDGEMENT: SCIENTIFIC ARGUMENTATION

Alexandru ARSENI1

Abstract The scientists in the field of Constitutional Law, Theory of Law and Political

Sciences approach to the legitimacy of authority in the quality of value judgment or feature of

state authority. But the national practice, including the international one invokes an

„evolution” of this concept, which we have formulated as a principle quality of the consolidation

of the state of law and democracy.

In the present article, we examine the origins of the concept of legitimacy of the

government, the subsequent doctrinary and contemporary approaches of the legitimacy of the

state authority finalizing with the formulation of new principles of the political liberal and

democratic – the principle of the legitimacy of the state authority, as well as the praxeological

perspective of this principle.

Annotation. If the state authority as an indispensable element of the state in the

contemporary acceptance is treated by the constitutional doctrinaires, theorists and political

theorists unanimously, then the legitimacy of the authority is approached only partially and from

different points of view. Thus, the constitutionalist T. Draganu expresses his opinion in this

context from the point of view of value judgment of the legitimacy of the government, as well as

of the Constitution. Then, the constitutionalist I. Guceac, through the prism of the analysis of

various schools of legitimacy of the state authority, gives his own definition of the category of

legitimacy of the state authority. While the theorist I. Jecev considers that the legitimacy is a

characteristic feature of the state authority, a concept which we do not share, because in these

circumstances the rebel regimes should be recognized as legitimate. And, at last, but not the

least, the specialists in political sciences, in their turn, define the legitimacy of the state authority

under the aspect of political sciences.

Thus, the problem of legitimacy of the state authority necessitates a scientific approach

in the framework of the science of the law as a fundamental branch of the branches of juridical

sciences.

As a starting point servicing and analysis serve the research results of the

constitutionalists T. Draganu, I. Guceac, P. Pactet, L. Vlasceanu, S. Tamas, etc.

1 Doctor in law, Associate Professor, MSU, Chisinau, [email protected]


Alexandru ARSENI

116

Keywords: authority, legitimacy, principle, function, praxeology.

In the vision of the constitutionalist T. Draganu, the legitimacy

problem occurs with occasion of adoption of the Constitutions, especially

of those written, and was linked to a historical moment in which the

“idea” of monarchical legitimacy still persists, although it lost more

ground in favour of “democratic legitimacy” [6, p.77].

It is true that both France and UK have developed as states in the

framework of the monarchical form of government, which “as it was

considered - at a time when the religious beliefs had a predominantly

social role - of divine origin, was accepted as natural and necessary

popular mentality. That is why, in France, the first constitutions have been

either pacts made between the monarch and the representative body or

the book lay the monarch” [6, p.77].

The North American revolution and ouster of the monarchy in

France in the late eighteenth century led eventually up to the consecration

of the bankruptcy of this idea and its replace with the principle of the

sovereignty of the people. The triumph of this principle has led to the

appearance of the so-called constitution-conventions [6, p.77].

This overturn was not accepted in France by the followers of the

old monarchic regime, which declared it illegitimate, since it was regarded

as coming into contradiction with their religious beliefs and conceptions

and their economic and political interests. For them, “The Republican

Government imposed by force by the revolted crowds, may have a legal

basis in the new republican constitutions, but he was not legitimate,

because it was contrary to the secular traditions of the country and

religious convictions, to which a part of the population was still attached

to them” [6, p.77].

Thus was born in the political language the opposition between

the legality and the legitimacy. This opposition is confined essentially to

the fact that “legality is a principle that is based on the idea that legal rules

in force must be strictly observed, while the legitimacy implies a value

judgment on a particular system of government” [ibidem]. It is said good

or bad depending on political beliefs, ideals and aspirations rooted at a

given historical moment in the mentality of the community or a part of it.

“Thus, the legality expresses an objective situation, a reality existing in a


117

certain period of development of a country, while the legitimacy is a given

subjective, dependent on the evolution of concepts and feelings dominant

in a human community.

Moreover, what is legitimate for a part of the society may be

illegitimate to another” [10, p.678-682; 19, p.71-72; 21, p.194-197].

Gradually, over a historical process that led to a real turning point,

the idea of divine right monarchic legitimacy has disappeared to make

place for the idea of the democratic legitimacy. “Under the last concept, a

constitution, in order to impose general respect must be freely accepted

expression of the will of the people. Thus, in this view, the government is

not legitimate unless and to the extent it is the will emanation of the

electorate” [6, p.78].

Moreover, with the accession of the biggest part of the world

countries to the two human rights covenants of 1966, it can be said that

the principle of democratic legitimacy, according to which - as required by

Article 1 of the above-mentioned covenants - people have the right to

freely determine their political status, has become an integral part of the

contemporary international law.

Once published, the problem of the legality and legitimacy of the

different political regimes arises today, due to the fact that not

infrequently the constitutional order in force in some states is overthrown

by the violent actions, such as revolutions, riots, coups, foreign military

interventions, guerrilla wars etc. At the way of these violent actions, at the

leadership of the state are actually installed the governments that do not

recognize anymore the previous constitutional order and replace it with

new political structures, whose observance is ensured by the coercive

force of the state.

Since the constitutional order introduced by the governments in

fact after the collapse of a government defeat in war, or after the triumph

of a popular revolution or after the success of a coup, is not established

by the authority in force, it will be natural that the new regime which

reached the power to seek to create a legal basis.

“If the government really is the emanation of a powerful popular

movement, its legalization can be done easily. It will be sufficient to be

convened the electorate to freely choose a constituent assembly and the

constitution adopted by this assembly to be possibly subject to a

referendum, because the government actually to be transformed, based on

Alexandru ARSENI

118

the principle of the sovereignty of people, into a legal government” [6,

p.79].

This was done in France after the Second World War, when,

according to the constitutional law of November 2, 1945, it was elected a

Constituent Assembly, which adopted a new draft of the constitution (on

29 November 1946). Subsequently subjected to popular vote, this draft of

the constitution was adopted by a majority of the electorate.

A similar procedure was followed in Romania after the revolution

of 16 to 22 December 1989. According to Decree-Law no. 92/1990, was

elected a constituent assembly. It adopted on 21 November 1991 a new

constitution, which was approved then on 8 December 1991 by

referendum.

The problem arises, opines T. Draganu, “in different terms when

a coup, triggered top-down and lacking a real basis of mass, reverses the

old constitutional order by force and sets up new political structures, in

order to subsequently submit the new constitution to a sham plebiscite

(the case of the Constitution of 1938 decreed by Carol II)” [6, p.79].

It is clear that the implementation in these circumstances of a new

political order does not appear consistent with the democratic principle of

establishing the constitutions and therefore cannot be considered

legitimate in optics of the modern conceptions. “Not being the result of

consultation of the freely expressed popular will, it will be imposed by

coercion and may be possibly maintained due to passivity of a good part

of the social community. In this case, the new constitutional order is not

an extension of the old legal order, but will be generated by its collapse”

[6, p.79].

The new constitutional law does not appear within and in

accordance with legal regulations in force at the time of its creation, but is

the fruit of force, under which it will be respected more or less long term.

The primacy of law is replaced by the primacy of the brutal fact. Born

“against the law, the new right will apply, however, as a law as long as the

state coercion force shall be in its service and the right in the service of

law.”

But if today the legitimacy of some rules arising in a constitutional

vacuum can not be assessed, due to developments in human mentality

universally, but in light of the democratic principle enshrined by the

covenants in human rights of 1966, however the problem remains open

“to know what procedural forms shall be guaranteed to comply with the


119

free expression of the popular will, the only one able to legitimize a the

transformation of a government of fact in actually one of law” [6, p.79].

As the previously mentioned international rights covenants do not

contain any statement in this regard, the problem will not receive a

response only in the light of the principles and practices generally

accepted in democratic regimes.

Based on these principles, it will be naturally, mentions T.

Draganu, “to believe that the new constitutional order will have to be the

work of a constituent assembly. The submission of the constitution

adopted in this kind to a referendum vote, although it not strictly

necessary appears to give expression to the will of the electorate, will be

an additional measure required to emphasize the democratic nature of the

procedure followed” [6, p.79].

It is obvious that in the circumstances in which occur the elections

of the Constituent Assembly and the referendum, they will be organized

by the government in fact. If in the decree convening the electorate for

the election of a constituent assembly will be provided the rules according

to which it will carry out the work, the procedure thus determined shall be

binding on it, because it is an integrant part of the mandate given by

voters to the elected in order to adopt a new constitution. Therefore, for

example, if in the act of convening the electorate for the election of the

Constituent Assembly is not established the procedure, according to

which it will deliberate, it will be free to establish by itself.

The way the modern doctrine of the constitutional law establishes

the problem of the establishment of the constitutions in case of a

constitutional vacuum is likely to raise a number of questions. In his view

T. Draganu, “indeed, there seems to be a common view that when such a

vacuum is produced either by violent or nonviolent means (e.g., a new

state arises in a peaceful manner following the emancipation of former

colonies), the people are free to establish their own constitution. If, for

this aim, the people will choose the Constituent Assembly, it will be able

to adopt the text of the new constitution without being obliged to

proceed by way of a qualified majority or other special procedures, of

course provided that the act of convening the meeting not to be provided

otherwise. In this situation, a natural question arises: the application of

such a simplified procedure is possible only if a constitutional vacuum or

whenever it is adopted a totally new constitution, followed the special

regulations regarding the conditions for the exercise of the legislative

Alexandru ARSENI

120

initiative, of the conduct of the debates, of voting (e.g., the obligation to

obtain a qualified majority) to operate only in cases of proper

constitutional revisions, i.e. when are targeted only one or more articles of

the constitution in force? Such a question gives rise to, but, naturally,

another question: if it is accepted that a constituent assembly by simple

majority may adopt a new constitution, the provisions of the constitution

that establish a procedure more complicated and more difficult of its

review could not be circumvented under the pretext that they are adopted

in its whole a new constitution? It shall be not concluded that a

constituent assembly, since it is freely chosen, is empowered both to

adopt a new constitution and to review the existing one, without the need

for this purpose of a qualified majority or the carrying out a special

procedure of the initiative, of debate, etc.?” [6, p.80].

Thus, the concept of legitimacy has gradually expanded its

coverage sphere, culminating with the legitimacy of state power.

Moreover, the issue of legitimacy becomes an object of research both in

legal doctrine and in sociology, as well as in the political science, this topic

being examined in terms of legal, sociological and political science. From

the legal point of view. So, for example, Ion Guceac considers the

legitimacy of state power as “a power characteristic specific to the state of

law, where the rules of behavior are not only imposed, but also accepted,

as a rule, by those whom they are intended, and are not based on

absolutism, force, as in the police state” [9, p.72].

Analyzing the legitimacy of state power, the researcher I. Jecev

emphasizes that “the state power in a democratic state cannot be

maintained only to the extent when the power structures are legitimate,

and the political decisions, including, first of all the laws, express the

general will and are not used against a part of the population. And the

legitimacy of the state power can be viewed from two perspectives: as an

act of appointment of power structures (the conquest or the act of

founding the power); the correlation between the content of the political

decisions and expectations of those governing. The legitimacy in the state

of law requires a bilateral relationship between the governors and the

governed: to perception by the governed of the efficiency of the power

and understanding by the governors of their power as one conditioned by

the confidence of the governed and the limits of the power established by

the regulatory requirements” [16, p.16 ].


121

In his turn, Cristian Ionescu considers that “the legitimacy is a

fundamental element of political power, on which depends its authority,

its capacity of dedication or defence, of adaptability at new

confrontations of the political life, civil society” [9, p70- 73; 15, p.86].

From the sociological point of view. In the view of the

sociologists C. Zamfir and L. Vlasceanu, the legitimacy is “the power

characteristic (of the source, its nature and organization) to be consistent

with what people see properly preferable or corresponding according to

some legal, moral rules or religious traditions” [25, p.329-330].

From the politological point of view. According to the researcher

S. Tamas, the legitimacy “is considered a founding principle and

justification of a system of government that requires some recognition by

the governed of the right to lead carried out by those who govern” [23,

p.149].

In another opinion from the political science, through the

legitimacy is understood, essentially, “the quality of being justified or

accepted willingly by the subordinates, which converts the exercise of the

political power in a right authority.” In another opinion, the legitimacy

reflects a foundational consensus that allows management and behaviour

with authority and which provides acceptance and for the individual

leaders, institutions, as well as the norms of behaviour [24, p.89].

But there is still a conception of legitimacy of power - the so-

called “elitist legitimacy”. The “modern” elitist theories are focused on

elites, participating at the “modernization of the process in developing

countries and on the various elites who operate in a democratic, pluralistic

society, at the local, state and national level” [20, p.165].

We consider that in this case, rather it is about the quality of the

political class and it is not about the legitimacy of the state power.

Meanwhile, the scientific doctrines brought several concepts,

including:

Contractualist theory [2, p.232] - according to it, the power was

created by a pact of allegiance by which subjects promise to listen and the

monarchs promise a minimum package of rights and freedoms.

The theory of divine right - the sovereign has the right to

command his subjects out of divine desire to exist some order, but also

because the fact that the divine will designates a certain ruler (sovereign).

The Marxist theory - the power is the result and the form of

expression the irreducibility of class contradictions.

Alexandru ARSENI

122

Charismatic Legitimacy [9, p.77] - is based on the strong

peculiarities of the leader who becomes a historical person in the full

sense of the word, the people being devoted blindly.

The democratic theories - according to them, the political power is

legitimate only to the extent that they have as the foundation the will of

the human community that stay at the basis of power. This general will of

the nation is the owner of the right of sovereignty, namely of the state

power control.

The elitist legitimacy - a set of visions that aim to explain the

nature and role of social groups and communities, in whose possession

was the power.

The elitism theorists claim that every form of human coexistence

there is a well-ordered power system, where a group exercises, directly or

indirectly, the most part of the power [9, p.79].

As for us, in summary, we consider that the legitimacy is a trait,

quality of political and state power, a principle of establishing and

justifying the entities authorities corresponding to some legal and moral

rules and the recognition by the government to be led by those who

govern. And the legitimacy of power is a feature of state power that

resides in the national sovereignty, specific to the state of law and

democratic state, where the Constitution and the authorities of the state

entities and acts issued by them are consistent with the general will and

are accepted as such by the entire human society organized in the

respective State.

Political system - environment of the state power Theoretical concepts concerning the definition of a

“political system” The middle of the twentieth century is characterized by

performing scientific and technical revolution, the revolution that covered

virtually all spheres of social and economic life, all branches of science,

including cybernetics. Among other novation, cybernetics gave birth also

to the “general theory of systems” which, in its turn, gradually

overwhelmed a whole range of sciences, including political science, and a

little later the constitutional right as a fundamental legal science.

The concept of political system arises in the second half of the

twentieth century “under the influence of the general systems theory,


123

reflecting the concern for the integrative approach of the policy area” [18,

p.71].

It is under the influence of general systems theory the American

political scientist David Easton uses for the first time, the concept of

“political system” in his work The Political System written in 1953.

Starting from the concept of “ensuring the intrinsic unity necessary for

political science,” the political scientist proposed as a modality of the

concept of “the political system” [8, p.83].

This concept was developed, as the domestic political scientists

mentioned [17, p.77], to avoid which gives the ambiguity to the concept

of state [7].

The contemporary scientific doctrines present a wide range of

definitions of the concept of political system, some of them only using the

phrase without interpreting it [26, p.77-79].

The liberal and democratic political regime is based on a number

of principles among which:

a) national sovereignty; b) separation of powers in state; c) multi-

party system and political pluralism; d) the constitutionality and legality; e)

equity and justice; f) the state of law.

Also in the contemporary conditions was imposed and is imposed

a new enlightening principle, namely the principle of legitimacy of the

state power.

Praxiological perspective of the principle of legitimacy of state power in order to strengthen state of law

The principle of legitimacy of the state power requires a new

function that constitutionally refers to the Constitutional Court.

The Constitutional Court function to ensure the legitimacy of the

state power in its complexity derives from Article 7 of the Constitution –

“Constitution as the Supreme Law” and, logically, from the provisions of

Article 135 “Attributions”, among which “d) confirms the results of the

republican referenda; e) confirms the results of the elections of the

Parliament and the President of the Republic of Moldova; f) ascertains the

circumstances justifying the dissolution of Parliament; the suspension

from the position of the President of the Republic of Moldova or the

interim position as a President of the Republic of Moldova, and the

inability of the President of the Republic of Moldova to exercise powers

for more than 60 days; h) decides on matters dealing with the

Alexandru ARSENI

124

constitutionality of one party”. At the same time, according to Article 62

of the Constitution, the “Constitutional Court, at the proposal of the

Central Election Commission, decides on the validation of the mandate of

deputy or its invalidation in case of breach of electoral law. This article, in

conjunction with the confirmation of the election of the Parliament put

the Constitutional Court at the guard of the national sovereignty - the

source of legitimacy of the state power”.

These conclusions are confirmed by the jurisprudence of the

Constitutional Court. So, according to the Decision of the Constitutional

Court on the confirmation of the republican consultative referendum

results of 23 May, 1999, Article 37 of 15 June examining thoroughly the

report of the Central Election Commission of 15 June of the same year,

the protocol and the attached materials, the Constitutional Court did not

ascertain any cases of the serious violations during voting or vote

counting, as well as the process of totalization of the results of the

republican referendum, of the provisions of the Electoral Code, which

could influence the results of the referendum. Under the provisions of

Article 140 of the Constitution, Article 26 of the Law on the

Constitutional Court, Article 62 and 68 of the Code of Constitutional

Jurisdiction, the Constitutional Court ruled: “1. Confirms the results of

the republican consultative referendum of May 23, 1999” [14].

This decision is to justify the power of the referendum as a form

of direct exercise of the national sovereignty.

Thus, in accordance with Article 75 paragraph (2) of the

Constitution of the Republic of Moldova, “the decisions adopted by the

results of the republican referendum have the supreme legal power [4]

which they acquire, but “after their confirmation by the Constitutional

Court and are enforceable throughout the Republic of Moldova (Article

142 paragraph (3) of the Electoral Code)” [3].

The Constitutional Court confirmed the legitimacy of the election

of Deputes of Parliament by the Decision on the validation of mandates

of the Republic of Moldova by the XVIII legislature, No. 14 of

19.08.2009. Examining the materials relating to the parliamentary elections

of July 29, 2009, presented by the Central Election Commission under the

provisions of Article 62, Article 69 paragraph (1) and Article 140

paragraph (1) of the Constitution of the Republic of Moldova, Article 26

of the Law on the Constitutional Court, Article 61 paragraph (1) and 62,

letter d) of the Code of Constitutional Jurisdiction, Article 89 paragraph


125

(2) of the Election Code, the Constitutional Court ruled: “There are

validated the mandates of the deputes elected in the Parliament of the

Republic of Moldova by the XVIII legislature” [11].

After the parliamentary elections of July 29, 2009 and the legal

meeting of 28 August, 2009 the newly elected Parliament, a group of

deputes have asked the Constitutional Court having as object the Decision

of the Parliament No. 2-XVIII regarding the approval the protocol No.1

of the meeting of the Commission to carry out the election by secret

voting of the Parliament President and the Decision No. 3- XVIII for the

election of the Parliament President. In a word, there was questioned the

legitimacy of the election of the Parliament President. Examining in the

plenary session the complaint, the Constitutional Court decided to stop

the process for the control of the constitutionality of the Parliament

decisions No.1-XVIII , No.2 and No.3 XVIII and No. 3 -XVIII of 28

August, 2009 “... being presumed constitutional” [5].

The principle of legitimacy of the state power The state power being an element of the objective law, there

appears the issue of its legitimacy. That is, the state power as a complex

phenomenon and indispensable to the contemporary human society needs

legitimacy. The principle of the legitimacy of the state power is applied to:

the Constitution - as a legal and political act of the people constituted in

that state. That is, after all, the last word in the adoption of the

Constitution belongs to the people - the will expressed by a constitutional

referendum. Respectively, and the further modifications or amendments

to the Constitution may be legitimate only after their approval by the

referendum.

The legitimacy of the state power emanates in the national

sovereignty established in Article 2 of the Constitution. And the basis of

the state power, in conformity with the Article 38 of the Constitution, lies

in the will of the people expressed through free elections, which take place

periodically through universal, equal, direct, secret and freely expressed

vote.

Also the Article 2 (1) of the Constitution provides that the

national sovereignty is exercised: directly by the people - elections,

referendum and its representative bodies. The Constitution of the

Republic of Moldova establishes only one supreme representative body of

the people - Parliament (Article 60 paragraph (1)).

Alexandru ARSENI

126

So the legitimacy of the Parliament, as a representative authority

and sole legislative authority, resides in people’s will expressed by the

electorate. It shall be noted that only the Parliament receives the

legitimacy directly from the people, while the other two branches of the

state power receive the legitimacy in case of the Government - from the

Parliament. The government legitimacy emanates under art.98 par. (3),

from the granting of trust with the majority vote of the deputies elected.

The Government, as a central structure among the executive

authorities, is the work of the Parliament, its existence is based on three

essential components: the government program, the procedure for

investing and confidence given by the Parliament. If case of lack of one of

these components the legitimacy and the share of the government

structure becomes uncertain [22].

The list of the Government members voted in Parliament

includes: the Prime Minister; the Deputy Prime Minister; deputy prime

ministers and ministers. There appears the problem of the legitimacy of

other “members established by organic law”. Following the logic of the

principle of the legitimacy of the state power cannot be the members of

the Government than those voted by the Parliament. And in case of the

judiciary authorities - from the auto-administration authority itself - the

Superior Council of the Magistracy.

A special status, have the magistrates of the Constitutional Court,

whose legitimacy emanates equally from the Parliament, Government and

the Superior Council of the Magistracy.

Obviously, the legitimacy of some state entities organs of senior

rank: Prosecutor’s office; Court of Auditors etc., emanates in the majority

of cases in the Parliament’s vote. Returning to the executive power, we

shall clarify that the legitimacy of the Head of the state emanates from the

vote of the deputies in the Parliament expressed in secret manner.

Another example of the principle of ensuring the legitimacy of the

state power serves the Notification of the Constitutional Court regarding

the finding of the circumstances justifying the deputizing of the position

of the President of the Republic of Moldova, No. 4 of 17.09.2009. As a

basis for examining the file served the referral of the Parliament of the

Republic of Moldova, presented on September 14, 2009.

Examining the notification, the transcript of the Parliament

hearing of September 11, 2009 where it was decided that the deputizing of

the position of the President of the Republic of Moldova is ensured by


127

the Parliament President [1], as well as by the other materials attached to

the file, the Constitutional Court has adopted this notification, by which

“it is ascertained that the circumstances justifying the deputizing the

position of the President of the Republic of Moldova the vacancy of the

position following the resignation of the head of state” [13].

It was disputed the mandate of the Presidential of the Republic of

Moldova, elected by the Parliament on March 16, 2012. Thus, a group of

deputies draw the attention of the Constitutional Court to control the

constitutionality of the decisions of the Parliament: No 38 of 7 March

2012 on setting the date for the election of the President of the Republic

of Moldova, No. 39 of March 7, 2012 on special commission to conduct

the elections for the position of the President of the Republic of Moldova,

No. 46 of March 16, 2012 on the confirmation of the election of the

President of the Republic of Moldova.

Analyzing the documents mentioned in terms of legal provisions,

the Constitutional Court declared them constitutional and confirmed “the

constitutionality of the election for the position of the President of the

Republic of Moldova from March 16, 2012” [12].

All these acts confirm with certainty the function of the

Constitutional Court to ensure the legitimacy of the state power in all its

aspects of manifestations.

Summing the matter we consider necessary to regulate the

constitutional principle of the legitimacy of the state power to consolidate

the state of law and the democratic state. To this end we propose the

following amendments in the Constitution of the Republic of Moldova: 1)

To amend the Article, paragraph (2) by the phrase “The legitimacy of the

state power emanates from the national sovereignty” and further

following the text; 2) To amend the Article 134 paragraph (3) with the

words “... the supremacy of the Constitution”, with the phrase “and

ensuring the application of the principle of the legitimacy of the state

power”, following further the text; 3) To amend the Article 135 paragraph

(1) with sub- point “i” with the following contents “shall have the matter

and decide on the conflict of the parliamentary immunity.”

Bibliography:

1. The notification of the Constitutional Court to ascertain the

circumstances which justify the deputizing the position of the

Alexandru ARSENI

128

President of the Republic of Moldova No. 4 of 17.09.2009. In:

Official Monitor of the Republic of Moldova no.149 of

22.09.2009. Art. No.17.

2. Badescu M. Constitutional Law and Political Institutions. Bucharest:

Lumina Lex, 2001.

3. Election Code no.1381-XIII of 21.11.97. In: Official Monitor of the

Republic of Moldova, no.81 / 667 of 08.12.1997.

4. Constitution of the Republic of Moldova, adopted on 29.07.1994. In:

Official Monitor of RM, No. 1.

5. Constitutional Court decision on the suspension of the process for the

control of the constitutionality of the decisions of the

Parliament No.1-XVIII, No.2- XVIII and No.3--XVIII of 28

August 2009. In: Official Monitor of the Republic of Moldova

nr.140-141 of 11.09. 2009. Art.nr.16.

6. Draganu T. Constitutional Law and Political Institutions. Tirgu Mures:

Tipomur, 1993, vol.1.

7. Easton D. The Political system Besicded by the State. Political Theory,

Volume 9, No. 3 (August), 1981.

8. Easton D. The Political system: Au Juquiry into the State of Political

Science. Second Edition. New York, Alfred A. Knopt, 1971,

p.83.

9. Guceac I. Elementary course in constitutional law. Vol.I. Chisinau,

2001.

10. Haurios A. Droit constitutionnel et institutions politique. Septiem

édition, editions Montchrestien, 1980.

11. The decision on the validation of the mandates of the deputies

elected in the Moldovan Parliament by the XVIII legislature No.

14 of 19.08.2009 / Official Monitor of the Republic of

Moldova nr.127-130 from 21.08.2009. Art. No.15.

12. The decision of the Constitutional Court on the constitutionality

control of some decisions of the Parliament and Presidential

election results confirmation No.1 of 19.03.2012. In: Official

Monitor of the Republic of Moldova, nr.54-59 from 23.03.2012.

Art. No. 9.

13. Parliament Decision no. 15-XVIII of 11 September, 2009. In: Official

Monitor of the Republic of Moldova no.143 of September

2009, art., Nr.400.

14. Decision No.32 on the confirmation of the consultative republican


129

results of the referendum of May 23, 1999 from 15.06.1999. In:

Official Monitor on 01.07.1999, no. 67.

15. Ionescu C. Contemporary constitutional treaty. Bucharest: AII Beck,

2003.

16. Jecev I. The legal nature of of the state power in the modern period.

Self-report of the PhD thesis in law. Chisinau, 2013. 28 p.

17. V. Juc, Josanu Y., Rusandu I. The transitional political systems in

Southeast Europe. Chisinau, 2008, p.17-20.

18. Mihut L. Dilemmas of the political science. Journey to the study

concepts. Bucharest: Encyclopedic publishing house. 1995, p.71.

19. Pactet P. Institutions politiques. Droit constitutionnel. Paris, 1991.

20. Plano Jans C., Riggs E.Robert, Helenau S.Robin. Dictionary of

political analysis. Bucharest, 1993, p.165.

21. Prelot M. Sociologie politique. Paris: Dalloz, 1973, p.263.

22. Report on the exercise of constitutional jurisdiction in 2013. In: the

Constitutional Court of the Republic of Moldova: Chisinau:

Arc, 2014, p.43-44.

23. Tamas S. Political Dictionary. Institutions of democracy and civic

culture. Bucharest: Sansa, 1996.

24. Voiculescu M. Political Science. Bucharest. Victor Publishing house,

1998, 211 p. 25. Zamfir C., Vlasceanu L. (coordinated).

Dictionary of Sociology. Bucharest: Babel, 1993, p.329-330.

26. Giritanu V. Problems of improving local public administration in the

political system of the Republic of Moldova. In: A valuable

reform - the decisive factor in the revival of economic activity

and law. Chisinau, 2001, p.77-79.

Alexandru ARSENI

130


131

II. ROMANIAN LAW

Alexandru ARSENI

132

Elements of Romanian Constitutional History

133

ELEMENTS OF ROMANIAN CONSTITUTIONAL HISTORY1

Cristian BOCANCEA2

Abstract: Romania’s constitutional history hardly gathers two centuries; along them, many of

our fundamental papers were mostly imported ones, than national original creations.

At the beginning of the modern era, we received the frameworks of the constitutional

life from the phanariots, Russians, and later from the European powers interested in setting the

Principalities at the mouth of Danube. In 1866, we succeeded to strengthen a unification which

was hardly accepted by the European powers and we adopted a constitution which translated

into Romanian the text of the Kingdom of Belgium’s fundamental law. Then, after The Great

Unification from 1918, we made the first Romanian constitutional text, pursuant to the

highest democratic standards of that time. Unfortunately, we abandoned it in 1938, by Carol

the IInd’s coup d'état. Reinforced after the war, the 1923’s Constitution was quickly replaced by

the first Soviet-type constitution, in 1948. Two other communist constitutions followed: in

1952 and 1965; both of them set up orders of the single party and of the socialist property,

with social extensions towards dictatorship and the cult of personality. After the anti-communist

Revolution from 1989, Romania came again on the trajectory of the pluralist constitutional

democracy. 1991’s Constitution and its amendments from 2003 settled us within the

European and Euro-Atlantic frameworks. Enough ambiguities still persist in our fundamental

law, creating the environment of an inefficient operation of the state owned institutions, as well

as a certain citizen’s distrust in democracy.

Keywords: Constitution, history, separation of powers, constitutional law

1 The Romanian version of this text was published in: Sorin Bocancea (coord.), Romania’s Constitution. Essential Opinions for the Fundamental Law, Institutul European, Iaşi, 2013, pp. 11-26. 2 Professor PhD, Dean, Faculty of Law, “Petre Andrei” University from Iaşi, [email protected]

Cristian BOCANCEA

134

Introduction A story about the Romanian Constitution is as necessary as a

family history, as a countryside monograph or a (decent) textbook of

national history. We have to know how we disciplined from a

bureaucratic, administrative and political points of view from the modern

era, in order to understand where we still have to work at the roots of our

nowadays behaviour marked either by the “Honour the work” emphatic

declaration (set up compulsory at the end of the petitions written by the

citizens of the Socialist Republic), or by the real saying about the curly hair

puppy, which swears that it does not steal, in spite of all the evidence.

We, the Romanians, had a Constitution since the first half of the

XIXth century, almost at the same time with other nations which are more

prosperous and happier now. We created democratic institutions and we

put them to work “for the people’s sake”, even if we had the conscious of

“the forms without background”. We geared either to the occidental

democracy, or to the soviet totalitarianism, hoping that one day the

unusual order will be overthrown, based on the well-known principle that

kings’ death means fools’ joy. Nowadays, after more than two post-

communism decades, we find ourselves in the fever of amending our

fundamental law (assigned to our honourable members of Parliament of

all professions – from turner to historian), asking ourselves whether it

deserves changing something from our present Constitution, or maybe we

are on the edge of repeating the same mistakes from the past, trying to fix

(just like at the countryside) a broken fence which you would better

demolish in order to make a new one, instead of patching it. Our story is

one of a repeated obedience as regarding the Occident; it is at the same

time, an outbreak of national identity, of political “originality” and useless

protest.

Along almost three millenniums of pre-modern historical

civilization which hallmarked us, the constitutional problem appears in a

fugacious way during Hammurabi - the Babylonian king, in the classical

Greek antiquity from Plato and Aristotle’s time, as well as during the

Republican Rome. As to the rest, the world was governed by the free

agency of the powerful ones, without limitative texts (excepting the

notable, but confusing Christian dictum which gave to Caesar those

political things which were needless for God …). Only in the year 1215,

the English barons imposed to the John without Country the document

entitled Magna Charta Libertatum. In 1776, the Americans proclaimed


135

Virginia Bill of Rights and the Frenchmen adopted their first constitution

during the turbid times of the Revolution from 1789. The XIXth century

will be more productive with a view to the constitutional texts (mostly in

the context of the bourgeois revolutions from 1848), involving some

ideological and juridical debates, where the liberal individualism, the

separation of powers and the minimal state will be the main subjects,

together with the older ideas of property and (economic, religious, of

awareness and of expression) liberty guarantees. But this thing did not

happen all over the world; the conservatory empires maintained the

monarchical absolutism for a long time (the Ottomans adopted their first

constitution in 1876 and the Russians in 1906).

The Beginnings In the Romanian area, political associated with the neighbour

powers, the evolution of the state organization started at about 1740,

under the care of the phanariots (Constantin Mavrocordat, Alexandru

Ipsilanti, Scarlat Callimachi and Ioan Caragea) who set up the first laws,

including administrative elements, as well as private law elements. Texts

with a content referring to the state order were also made by the native

nobility (from Tudor Vladimirescu, to the Moldavian “Cărvunari”), asking

for the independence of Walachia and Moldavia, as well as for a

parliamentary monarchy, in order to guarantee the property law, the

liberties from the French Declaration of human beings and citizens’ duties, the

worthwhile access to the public jobs, the penalization of the

administrative abuses, order in the public finance and national army. Both

the phanariots’ legislation and the “terrestrial” nobility owned the piers of

the feudal order, offering privileges to the laic and clerical aristocracy,

where the ordinary people (either peasants or townsmen) had to pay.

During the European modernity, we may say that the principalities from

the Danube’s mouth were sailing according the “feudalism – our national

recipe” formula.

The state’s modern organization principles were effectively

applied only by the help of the introduction of the Organic Regulations

(1831 in Walachia and 1832 in Moldavia) under the authority of - Russia,

the protecting power, which dominated the Principalities, from a military

point of view and by the help of Pavel Kiseleff (the governor), until the

year 1834. The similar constitutional papers from those two states

consecrated the powers’ separation and the elective monarchy. In spite of

http://www.dadalos.org/rom/Menschenrechte/grundkurs_2/Materialien/dokument_2.htm

Cristian BOCANCEA

136

this, the rulers had a great authority, exerting the executive power

integrally, even in the legislative part (together with the Ordinary Public

Convention) and in the juridical part, too. The regulations also imposed

the setting up of ministries or central administrative departments (the

internal affairs, finance, police, law, cults and state secretariat), as well as

the administrative-territorial organization, based on counties and “plăşi”

(small rural districts) in Wallachia, and the so-called “ţinuturi” (regions)

and “ocoale” (a sort of wards). Justice is also organized on modern

principles, being set up hierarchical instances for the civil and penal parts

(from the countryside court, to the High Committee), as well as the

administrative and commercial courts; there have been brought under

regulation the jobs of judge, prosecutor and lawyer, in a new system of

justice, which forbade the torture, the mutilation and the confiscation of

fortune. The writing of the Principalities’ Regulations, by some nobility

commissions and approved by Russians, their “rectification” at the

Petersburg’s imperial court and the adoption by the public committees

from Bucharest and Iasi demonstrate the fact that sometimes, the foreign

interference can do good things, too. At that time, the Christian Empire

did not have a constitution, as well as the Ottoman power; we had one!

The terrestrial lords (reinforced by the Ottoman Empire in 1822) ruled

the Principalities on the basis of the Organic Regulations up to 1848,

when the liberal revolutionary groups searched for the Ottoman reliance

in order to abolish what Bălcescu named “disorganized legislation”, which

brought pauperism in the Principalities and which was forcibly inforced

by one hundred thousand Russian bayonets. In spite of the Romanian

revolutionary people, the Ottomans did not accept the Regulations’

abeyance, but reached an agreeemnt with the Russians, in 1849, by the

help of the Balta-Liman Convention. The czarist army remained in our

country till 1851. The lords were proclamed by the agreement of the two

empires, for a seven years mandate; the representative meetings were

replaced by some legislatures which were made up of rulers who were

named by the Ottomans.

Constitutional Regulations for the United Principalities In 1853, the deterioration of the relationship between the

protector and the suzerain (as regarding the Russian rights of protecting

the orthodox pilgrims at the Holy Places, in a competition with the rights

of protection of France for the catholic pilgrims) reached the climax when


137

the Russian occupied the Walachia and the rulers’ exile to Wien; this is

how the Crimeea War began. In March 1856, the Peace Treaty from Paris

ended the conflict, the Tzarist Empire had to withstand the alliance

between the Otomans, Britains, Frenchmen and the Sardinian Kingdom.

The Danube Principalities were still under the Otoman suveranity and the

Russian protectorate was replaced by the the “collective guarantee”

statute, on behalf of the great European powers. Naturally, in such a

situation, the constitutional paper which was released under the czarist

control was suspended de facto. From the French interest games (they went

nap on the nationalism in a conjectural way) as well as the Austrian ones

(for whom a Moldavian-Wallachian union might have represented a point

of interest for the Transylvanian people), they reached a compromise,

setting up a sort of two-state confederation, each one with a ruler,

parliament and a distinct govern, but also with a Central Commission and

an unique Court of Cassation (with the headquarters in Focşani), in order

to harmonize the common interset problems. In 1857, the ad-hoc

committees were convoked in Moldavia and Muntenia, in order to agree

upon the conditions of the common evolution of the two Principalities,

as well as for the elcetion of the two rulers. They had to exert thier

executive attributions, and the legislative ones had to fulfil on the basis of

a common agreement with the Central Commission from Focşani. Thus,

the Principalities made a first step toward the unification.

For a further step, the Romanians found an inventive solution: the

double election of Alexandru Ioan Cuza as a ruler, in Iaşi and Bucureşti,

in 1859, January. Hardly agreed by the Otomans and the rest of the

European powers, the ellection was folloed by a number of reforms in the

sense of the Moldavian-Wallachian unity, which deepened from an

institutional point of view at the beginning of 1862; that was the moment

when a single parliament and a single govern were set up, for a new

country named Romania.

But things evolved in a difficult way, because the ruler of a

moderate liberal orientation was not backed in the legislative meeting,

neither from the conservative members (the majority), nor from the

radical liberals.

Between 1859 and 1862, there were five elections for the

legislative committees and twenty governs followed, hoping that the

situation will be unlocked someday. In the end, at the beginning of May,

1864, the conflict between the ruler and the legislative ended with its

Cristian BOCANCEA

138

dissolution and with two papers issued by Cuza and his prime-minister –

Mihail Kogălniceanu: The Devoloping Statute of the Convention from

Paris and a new election law. Both of them were submited to the

plebiscite, at May10th, 1864. The great powers found out about this

change, without enjoying it, but understanding once again, the political

reasons of this fullfilled fact.

The constitutional regime imposed by Cuza, by the help of the

Developing Statute text, empowered the ruler both from a legislative and an

executive point of view. He could issue decrees with no parliamentary

notice; he had legislative initiative, being technically backed by a new body

– The State Council.

The Parliament became bicameral, being made up of the Elective

Committee and the Moderating Body (The Senate), which had the role of

“censoring” the decisions of the inferior chamber and of exerting the

constitutionality control. The Elective Committee was directly elected by

the citizens (in the conditions of the censitary vote), for a seven years

mandate; due to the new election law, the Elective Committee was no

more dominated by the conservatory nobility, because the right to vote

was no longer conditioned only by the incomes from land exploitation.

Thus, Cuza averted the opposition with a view to his liberal reforms. The

control of the executive upon the Elective Committee was generated by

the fact that its president was designated yearly by the ruler, and the

operating regulation of the Chamber was issued by the Govern. As

regarding the Senate, its body parts were set up partially by the ruler, too.

Among the senators, there were required the Primate Metropolitan (also

having the job of President) and the bishops of the eparchies, the first

President of the Court of Cassation, the old general of the army and other

64 members (half of them representing the counties and the other half

being chosen by the ruler according to their “merits”. Half of the

senators’ mandates were renewed every three years, by ballot.

In comparison with the institutional arrangement issued by the

Paris Convention, the Developing Statute allowed a personal power regime

of the state’s leader. The authoritarian accents of Cuza were not enjoyed

by many of the politicians of that time; they surpassed their animosities

and contributed at the coup d’etat from 1866, February. The prince was

forced to abdicate and exiled. After they tried to crown Philip of Flanders

(from the ruling dynasty of Belgium) – but they failed, the political crisis

and the risk of abolishing Romania’s unity ended with the proclamation of


139

Carol de Hohenzollern-Sigmaringen as a ruler. Having a new ruler,

Romania needed a new constitution, too.

The First Romanian Constitution, but Belgian … The first Romanian Constitution was enacted at July 1st , 1866, its

content being copiously inspired by the Belgian Constitution from 1831

(which had to come together with the ruler). The legislative committee -

which proclaimed Carol Ist as a ruler – became Constituent Committee,

issuing and voting the first text which was not imposed neither by the

suzerain power, nor by those seven surety powers. According to the

Constitution, Romania became an ereditarian monarchy, where the

following political-juridical principles were kept: national suveranity,

separation of powers within the state, the representative governing, the

ministerial responsability, the Constitution’s supremacy upon all laws. At

the same time, Romania’s Constitution proclaimed and guaranteed all the

rights and civil liberties written in “The Declaration of the rights of man

and of the Citizen” from 1789. The long-lasting primary act of Romania,

the Constitution from 1866 was three times ammended: in 1879, in order

not to condition the Romanian citizenship at a Christian rite membership;

in 1884, in order to diminish the number of ellectoral colleges and to

expand the voting rights, as well as for the introduction of “Romania” and

“king” denominations, instead of “The United Principalities” and “lord”;

in 1917, for eliminating the “sacre and intangible” character of the

property, in order to achieve the aggregation reform (they put the

peasants - who fought on the front lines - into possession of land).

The Constitution of the Great Romania In 1923, as a follow up of the process of creating an unitarian

national state (in 1918, Basarabia, Bucovina and Transilvania unified with

the Kingdom of Romania) and as a follow up of the introduction of the

universal vote, the Constitution from 1866 was replaced by another one,

being considered one of the most democratic constitutions from Europe.

The new constitutional act did not ignored integrally the old one;

practically, half of its articles (73 from 138) were taken from the 1866’s

text. The state life remained the same, but gained a much modern

expresion with a view to the constitutional language.

Cristian BOCANCEA

140

The way in which they attained the final text of the Constitution is

very interesting. Initially, there were four projects, three of them belonged

to some politicians (I. C. Brătianu, the liberal, Constantin Stere, and the

representative of the Romanian National Party from Transylvania,

Romulus Boilă), and the expert Constantin Berariu. The bicameral

Parliament elected in 1922, March, dominated by liberals, assumed the

revision of the Constitution, even if this thing was synonymous with

convening a constituent council (according to article 129 form the 1866’s

Constitution). The liberals did not assume the risk of losing two thirds

from the parliamentary majority (which was necessary then, as well as

nowadays) and thus, they forced the amendment/adoption of the

Constitution by an ordinary legislative council, by the vote of the Senate

and of the Chamber of Deputies from March 26th and 27th, 1923.

The Constitutions from 1866 and 1923 are cosidered by the

community of historians and by the most of the political analysts, as being

some juridical pieces of works; by virtue of these works, there was set up a

democratic regime of parliamentary monarchy, where the king ruled, but

did not governed. In other words, the monarch was a sort of moderator

of the political life and a guarantor of liberties, situating himself above the

partisan interests, and due to his German origin, above the Balkanical

spirit. The reality was a little bit different. Carol Ist and his descendant,

Ferdinand Ist (to say nothing of the special case of Carol the IInd), had a

great power of direct influence of the power, by their large prerogatives.

Thus, in legislative terms, Romania’s kings had legislative initiative,

promulgated and rejected laws which were voted by the parliament,

elaborated norms for applying the laws, convoked and closed the

parliamentary sessions (ordinary or extraordinary ones) and could dissolve

every chamber of the national agency, being summoned general elections

afterwards. By this last mechanism, they reached an unwritten rule, by

means of which, the govern that organized the elections was supposed to

win, having thus, its parliamentary majority (as the conservator P. P. Carp

said in a suggestive way: “Your Majesty, give me the Govern and I’ll give

you the Parliament!”). The executive power was assigned to the king, who

carried it on by his ministers, they also being responsible for his executive

deeds; he appointed the prime-minister and the ministers; he had the

power of dismissing the govern. It is true that the judicial power was

exonerated by the possible interference of the monarch, but he could

commute, diminish or abolish a punishment (excepting the ones for the


141

ministers). A king with such prerogatives (adding here the leadership of

the army, the transaction of the international contracts and “coinage”) did

not look as one who … governed. He was more the follower of the ruling

tradition from the Romanian feudal states.

Constitution and Dictatorship in Romania before comunism

The kingship consolidated its power positions in 1938, together

with the institution of the carlist dictatorship, inspired by the ideas of the

corporatist doctrine. That was the time when another fundamental law

(plebiscite at February, 24th) was imposed; it consecrated “the monarchical

missionarism”, the elimination of the political pluralism (replaced by the

Front of National Rebirth – a unique party ruled by Carol IInd himself)

and the destruction of the parliamentary life, the pre-eminence of the

citizens’ indebtedness as regarding their rights and the increase at 30 years

for the age when one could vote, which was only for scholars (but - a

good thing – for women, too). The separation of powers was in brackets,

the king concentrating in his hands the legislation and governmental

authority. The bicameral parliament remained only a decoration object.

Among the anti-democratic “performances”, the carlist Constitution

remembered the fact that it had as a promoter a monarch with a bad

political and moral reputation, that it did not admit any parliamentary

debate before being enforced and that it went through no more than an

“arranged” plebiscite, in spite of all the inter-war suffrage. In 1940

September, when the General Ion Antonescu (appointed head of state)

forced the king to abdicate, the Constitution from 1938 was suspended

and the political had to carry on under the special conditions of the

military dictatorship (military-legionary, initially) and state of war.

After the falling of Marshal Antonescu’s political system, at

August 23rd, 1944, the democratic Constitution from 1923 was reinforced,

but it lasted only three years. The setup of the communism in Romania,

by the help of the Russians, imposed not only a change of political system

(from monarchy to republic), but also a constitutional one (from the

demo-liberal pluralism to the communist totalitarianism).

Cristian BOCANCEA

142

The Communist Romania’s Constitutions The communism (as well the fascism) did not compulsory need a

constitution; the state order which imagined and put into practice referred

at a positive legislation only in a formal way, because the “justice” cause

was not a human and conventional one, but superhuman and absolute –

the historical law of the ineluctable succession of the eras which were

based on the principle of the class conflict. In spite of all these, during the

communist period, the Romanian state functioned on the basis of three

successive constitutions.

The first one was voted by the Parliament (a mono-chamber

council, having a constituent statute and elected in 1948, March) on April

13th, 1948, with the unanimity of the 401 deputies, with no debates, but

only one day before “Scânteia” - the communist newspaper published the

text which was forged in the Moscow’s ideological laboratories. It was all

about a new “organic regulation”, which admitted the birth of the Popular

Republic of Romania (after the abolishment of the monarchy, in

December 30th, 1947) and announced that nefarious times had to follow

for the capitalist economy (by the definitional “relaxation” of the article

about dispossession for a cause of public utility). The new fundamental

law gave up the national state rating, keeping only its characteristics of

“unitary, independent and sovereign”, prefaced by the “popular” label.

The blue collar workers were declared leaders against the fascism, reaction

and imperialism, resulting thus, a new state order. The means of

production were considered a state property, as goods of the entire

people; all the other properties which were not state owned yet, had to be

nationalized by law. The private property and the inheritance right were

still guaranteed – in a formal way – by article 8, but in article 9 they

stipulated the stimulation of the cooperative association; in the next two

articles, they insisted upon the idea of dispossession for public utility. In

the 3rd Title of the Constitution, the citizens’ rights were tightly related

with the liabilities. The voting age was diminished to 18 years old, and the

right to be elected (increased for all the people categories, no matter the

gender or job) was set at 23 years old. The parliamentary mandate still

remained an imperative one. The legislative power belonged to the Great

National Assembly, which had a management based on friendship; it was

made up of five people and it was named “Presidium” (its prerogatives

were similar with the ones of a president of republic). The executive

power belonged to the Council of Ministers (the govern), which had a


143

president (prime-minister). As regarding the local communities (villages,

“plăşi”, counties and regions), they were administered by elected popular

councils (with an executive segment named “executive committee”), also

viewed as “local authorities of the state power”.

The second Communist Constitution, of September 24, 1952,

makes Romania a potential Soviet republic, where the fundamental rights

and duties (starting with work!) are sent to Chapter 7 (they were followed

only by the provisions regarding the election system, the state insignia and

the amendment procedure). The text of the new fundamental law has an

introductory Chapter which defines the Romanian Popular Republic as a

“state of the town and village workers”, born as a result of the liberation

effort of the glorious Soviet Army, which is why the entire politics of

Romania must be aligned to the interests of the USSR. Chapter I,

dedicated to “social structure”, proclaims half a victory of the Soviet-type

order, showing that, beside the dominant socialist economy, there is a

small individual production sector, but also a capitalist one (the kulaks’

farms, private commercial establishments and industrial enterprises that

had escaped the nationalization of June 11, 1948) based on man’s

exploitation of man. Against this last remnant of the bourgeois society,

the state undertakes to lead a continuous confining policy. In order for

the private property that generates exploitation to be definitively exposed

to ridicule, article 15 of the Constitution specifies that “In the Romanian

Popular Republic, work is a duty and a question of honour for each

citizen able to work, according to the principle ‘he who doesn’t work

doesn’t eat’ In the Romanian Popular Republic the socialist principle

‘From each according to one’s abilities, to to each according to one’s

work’ is more and more widely implemented.” The state structure is

defined for the first time as a “popular democracy”, that is workers’power.

The legislative power remains the responsibility of the High National

Assembly (“the supreme body of state power”) led by the Presidium, and

government is defined as an “executive supreme body and body

controlling state power”. The local bodies of state power are called

“Popular Councils” and they function within the administrative divisions

called communes, towns, departments (after the Soviet model) and

regions. The local executives are called Committees and they are led by a

president and operate under a pyramid system of double subordination: to

the Popular Council that elected them, but also to the Executive

Committee of the immediately superior administrative division; such a

Cristian BOCANCEA

144

structure strengthened the control mechanisms of the so-called

“democratic centralism”. In the 1952 Constitution, the regions are

expressly specified (without resorting, like today, to the cardinal points):

Arad, Bacău, Baia Mare, Bârlad, Bucureşti, Cluj, Constanţa, Craiova,

Galaţi, Hunedoara, Iaşi, Oradea, Piteşti, Ploieşti, Stalin (the new name of

Braşov), Suceava and Timişoara, to which the Autonomous Hungarian

Region (having its administrative centre in Târgu Mureş and the following

constituent departments: Ciuc, Gheorgheni, Odorhei, Reghin, Sângeorgiu

de Pădure, Sfântu Gheorghe, Târgu Mureş, Târgu Secuiesc and Topliţa) is

added with a special status.

We’ve spent a little more time talking about the constitutional

episode of 1952 as it marks the apex of the ideologization of Romanian

society, the peak of state violence against individual rights, against private

property and democracy. The Sovietization constitution left us, in the

collective mind and in the arsenal of sensitive issues of Romanian politics,

with the legacy of a visceral hatred of private property, a false glorification

of work and an endless agitation of territorial autonomy based on ethnical

criteria.

In the following thirteen years of communism, things evolved a

lot in Romania. The dissent from the “popular democracy” regime died

out, so much so that in 1964 the authorities afforded the “luxury” of

freeing political prisoners. The power of the pro-Soviet leading group

suddenly weakened, which also led to a gradual separation from the great

ally in the East. Socialist property was reinforced (including by completing

the cooperativization of agriculture in 1962) and the change of

generations took place at the top of the party. The new realities made

necessary the Constitution of August 21, 1965, which proclaimed the

Socialist Republic. The period during which it was in force coincides with

the “Ceauşescu Era”.

For any reader interested in constitutional texts, the document of

1965 is a real anti-Soviet revolution. The embarrassing introductory

chapter praising the USSR is replaced simply by a first article that

haughtily states that: “Romania is a socialist republic. The Socialist

Republic of Romania is a state of the workers in towns and villages,

sovereign, independent and unitary. Its territory is inalienable and

indivisible”. There is no more mention of the great liberator that had

seemingly made it possible for us to exist as a state. There is no more

emphasis on the conflictual spirit that opposed the working class to the


145

other social categories, it is shown that they all build socialism together,

creating the conditions for the transition to communism. The third article

completes the definition of the Romanian state: “… the leading political

power of the entire society is the Romanian Communist Party”. After the

first three articles settle the essentials of the life of the Romanian state, it

then comes back to the issue of the people’s sovereignty, exercised

through the High National Assembly and the popular councils, elected by

universal vote. The last fundamental thing is, of course, the (state and

cooperative) socialist property, which makes it possible for work – the

duty of honour of every citizen – to no longer be marked by the

exploitation inherent in capitalism. The first Title of the Constitution also

develops the principles of socialist statism (the state is the one that makes

all things possible and impossible) and reverts to the traditional

administrative and territorial organization of Romania, based on

communes, towns (including municipalities) and counties.

Foreshadowing the opening to the Western world, the Consitution

of 1965 reverts to the theoretical model of placing the citizens’

fundamental rights (and duties) immediately after the definition of the

state. In a seemingly liberal language, it proclaims the citizens’ equality of

rights, whatever their sex, race, ethnicity or religion. The principle of the

guaranteed right to work (compulsorily exercised 8 hours a day, with an

unquantified weekly break) is kept and the right to rest, to regular and

maternity leaves, is added. The right to education of all levels, at the state’s

expense, is established. Beside the generous idea of protecting the family,

the mother and the child, the Constitution of 1965 speaks, very correctly,

about many other rights and freedoms, including political, religious and of

association, with the amendment that they can all be exercized under the

supervision of the Communist Party and of a larger organization called

the Socialist Unity and Democracy Front. The individual’s inviolability,

the secrecy of mail, the access to justice and the right to petition are

supplemented with the right to inheritance and ownership, the last ones

being not just guaranteed but “protected by law”.

Justice in Romania during the Ceauşescu era included two

institutional elements: the judicial bodies (which were entrusted with

“making justice”) and the prosecution bodies (charged with the activity of

criminal prosecution and with the application of punishments). They both

had the role of defending “socialist legality” and structure, in this regard

also taking care of prevention and the reeducation of criminals. Such an

Cristian BOCANCEA

146

organization left us, in the post-commusit era, with the essential question

if judges and prosecutors are all magistrates and if, as a result, they should

be equally protected against political interference.

In what concerns the state’s powers, the Constitution of 1965

equips the High National Assembly with a body with continuous activity,

called State Council (“the legislator on duty” during the long periods of

parliamenttary holiday, similar to the present right of the government to

issue ordinances) and with a constitutional commission (to check the

constitutional validity of laws). After the amendment of the Constitution

in 1974, the newly-created office of President of the Republic (which will

be occupied by Nicolae Ceauşescu, repeatedly elected “head of state” by

the High National Assembly) also includes the function of president of

the State Council, supreme commander of the Army and of presiding over

the government (like in semi-presidential regimes) when necessary. The

central executive remains the Council of Ministers, accountable to the

High National Assembly and the State Council. As regards local

organization, the Constitution makes the distinction between “the local

bodies of state power” (the popular councils) and “the local bodies of

state administration” (the executive committees, in the case of the

counties, municipalities and districts of the Capital; the executive offices,

at the level of towns and communes). The constitutional powers of the

President of the Socialist Republic of Romania (at the legislative, executive

and military level) and especially his political positioning as General

Secretary of the Romanian Communist Party create the conditions for the

inception of a dictatorship, based on personality cult and the

independence fantasies of national communism (a strange form of neo-

Stalinism). After the fall of that regime, Romanians will live with the

constant worry not to let a president take over state power, even if many

of them regret the seemingly protective authoritarianism of the “golden

era”.

The Constitution in the Post-Communist Era Two hundred years after the famous historic event called the

French Revolution of 1789, a profound political change process started

across the entire Eastern Europe, after which the Soviet-inspired

communist dictatorships fell one by one and were replaced by democratic

regimes modelled after the Western ones. The fall of the dictatorships and

the rebirth of democracy, together with the changes in economy (the


147

transition from the planned and centralized socialist economy, based on

state property, to the competition-type capitalist economy based on

private property) and culture shape the so-called “transition”

phenomenon.

The problems of the institutional transition were fundamentally

related, in Romania – as in any other young democracy –, to the processes

and mechanisms of the new constitutional synthesis, after the elimination

of the totalitarian structure and after going through a time of

constitutional void. The political changes occurred after December 22,

1989 are related to the phenomenon of implicit and explicit dissolution of

the fundamental law of the socialist state, and of construction and

legitimation of the state of law. Within this phenomenon, the

constitutional model of 1965 was perpetuated in many ways in its form

and in its spirit, even if the Revolution of 1989 seemed to reorient the

country towards the Western-type democracy.

The institutional transition, started with the installation of the new

legislative and executive power, had three distinctive phases: a) the

provisional institutions phase, with the National Salvation Front Council at the

legislative level (then turned into the Provisional National Union Council),

and the Government led by Petre Roman, at the executive level; it lasted

from the end of 1989 until the elections of May 20, 1990; b) the Constituent

Assembly phase, when the institutions resulted, on the one hand, from the

elections of May 20, 1990 (when the bi-cameral Parliament, with the status

of constituent assembly, and the President of the Republic were elected)

and, on the other hand, from the specific regulatory documents drawn up

by the legislative body; c) the phase of the pluralist constitutional state, after the

adoption of the Constitution in Parliament and its validation by

referendum, on December 8, 1991. After the new Constitution came into

force, Romania started a laborious process of supplementing and

reinforcing the institutional structures, evolving towards a political system

reproducing to a high degree the formal framework of Western

democracy, but annoyingly keeping too many of the customs, prejudices

and informal networks originating in communism or that analysts

associate with the Balkan spirit.

The first phase of the institutional transition (that of the

provisional institutions legitimized by the Revolution) ended after the

parliamentary and presidential elections of May 20, 1990. Once the bi-

cameral Parliament was validated and the President of the Republic took

Cristian BOCANCEA

148

the oath, the transition entered the “constituent assembly phase”. The

regulatory document that established the political reference frames of this

stage was the Electoral Law (the Law-Decree no. 92, regarding the

election of Romania’s Parliament and President, drawn up by the

Provisional National Union Council and published in the ‘Official Journal

of Romania’ no. 35 of March 14, 1990). Usually, an electoral law does not

make changes in the institutional structure of a country; through the type

of election that was adopted, the law can only change the political party

spectrum. In the specific situation of the de facto repeal of the communist

constitution, the Electoral Law had to set the form of government (the

semi-presidential republic) and the type of legislative assembly (the bi-

cameral parliament, with the status of Constituent Assembly), to proclaim

the separation of state powers and the election by universal vote of

parliament members and the president. The type of election set by law

was that of party lists (the parties themselves being created based on the

Law-Decree no. 8 of December 31, 1989), without electoral threshold.

The elections confirmed Ion Iliescu as President of the Republic, with a

crushing majority (85.07%); in Parliament, they gave the National

Salvation Front absolute majority (approximately 67%), which allowed

this party to impose its political agenda and especially to make decisions

regarding the Constitution.

The Commission in charge of drawing up the Constitution (made

up of ten members of parliament belonging to the National Salvation

Front, two members of parliament belonging to the National Liberal

Party, two from the Hungarian Democratic Union of Romania, an

independent member – the President of the commission, the jurist

Antonie Iorgovan – and one member of parliament from four other

political parties and national minorities) had to settle a few issues of

principle, before reaching a text version: the form of government, the

expresis verbis inclusion of the principle of separation of powers,

guaranteeing private property and the unitary, national character of the

Romanian state.

During 1990 and 1991, there were repeated mentions, in

Romanian society, and especially in some intellectual circles, of the idea

that maintaining the republic would mean keeping the communist

paradigm and that reverting to monarchy would be a sign of coming back

to the “interwar democratic tradition”. The monarchists invoked the

absolute invalidity of the abdication document of December 30, 1947.


149

Their adversaries said that Mihai I’s rise to the throne took place without

compliance with the constitutional provisions, on September 6, 1940,

that’s why his reign was always marked by a procedural flaw; they also

stated that Mihai was not the first born of Carol and, finally, that a

potential return of the Hohenzollern-Sigmaringen dynasty to the head of

the state, through Mihai I, would mean the extinction of the dynasty line,

since the sovereign had no male heir. Even though it would have been

able to do it, the post-revolutionary power did not see it necessary (and

did not risk it) to have a referendum to set the form of government, the

topic being many times ridiculed, infested with populist discourses

regarding the “royal and bourgeois clique” reclaiming the country’s riches.

The second essential issue related to the change of the

constitutional system in Romania was the principle of separation of

powers. After the totalitarian experience of several decades, Romania had

to avoid the risk of a new dictatorial regime, by separation of powers and

mutual control. This principle of the state of law had been proclaimed on

December 22, 1989, but it had been set aside for more than a month and

a half, until the creation of the Provisional National Union Council. Once

applied through the net separation of the legislative and the executive

bodies, the principle also had to be specified in the constitution so it could

be thus guranteed. However, this issue wasn’t settled, as the opposition

wanted, by being expressly mentioned in the Constitution.

The experts in constitutional law that contributed to the drawing

up of the text of the fundamental law expressed criticism of the principle

of separation of powers, considering it an obsession damaging both the

constitutional theory and the practice of exercising power. At the

theoretical level, our experts relied on the reflections of some

philosophers that emphasized the inconsistency of Montesquieu’s

doctrine. Thus, Rousseau had shown that Montesquieu, not being able to

divide sovereignty in its principle, divided it in its object; but, if we cannot

divide sovereignty, logically we cannot divide power either. According to

Rousseau, the legislative power consists of two inseparable things: making

the law and enforcing it; this means that the executive would only be an

“extension” of the legislative body. According to other theorists,

Montesquieu may not have used the concept of “power” to refer to any

“political body”. He may only have meant to emphasize the specialization

of the power’s functions, which, however, stays unitary. If we interpreted

Montesquieu’s classical concept ad litteram, in practice we would reach a

Cristian BOCANCEA

150

political mechanism made up of isolated pieces, without any links between

them. But, in the exercise of power, there are “mixed areas” between the

state bodies (e.g. the Government has legislative initiative and can issue

ordinances during parliamentary holidays or regulate situations in cases of

emergecy; the President grants commutations of sentences and pardons;

judicial bodies also have some administrative activities, etc.).

After the theoretical disputes were finished, the commission that

drew up Romania’s Constitution opted for the idea of a soft separation of

the power’s functions (the power remaining unitary, just as the

sovereignty which generates it) and for the principle of supremacy of the

legislative body, mentioned in many titles and articles: article 2, regarding

the indivisibility of national sovereignty and the uniqueness of its holder

(the people); title III, regarding the demarcation and inter-conditioning of

the power’s functions among the various public authorities (the

Parliament, the President and the Government being called “public

authorities”, just as the central and local public administration or the

judicial authority); articles 84 and 95 regarding the Parliament’s ability to

suspend the President of the Republic from office and to put him on trial

for high treason; article 58, which stipulates that the Parliament is the only

legislating authority; article 112, regarding the accountability of

Government to Parliament; article 104, which says that the office of

member of parliament is compatible with that of minister. According to

the way in which they were appointed, public authorities in Romania were

included in two large categories: a) the directly representative authorities,

that is those elected by universal, direct, secret and freely expressed vote

(the Parliament, the President of the Republic, the mayors, the local and

county councils, as well as the President of the County Council, starting

from 2008); b) the derived or indirectly representative authorities (the

Government, the central public administration and its territorial services,

the judicial authority, the Constitutional Court and the People’s

Ombudsman).

Although the principle of separation of powers, in its

“modernized” form, stood at the basis of Romania’s Constitution, the

lack of its explicit mention in the text caused political tension between the

parliamentary majority and its opposition. The latter accused those in

power, for a long time, that they wanted to maintain the confusion

regarding the separation of powers to leave open the possibility of

establishing an authoritarian regime. The representatives of the majority


151

answered that the opposition had not tuned into the current worldwide

debates related to the inconsistency of the principle of separation of

power. In the end, most of the representatives of the opposition voted

against the text of the Constitution (which gained them even more dislike

within the public opinion).

The third complicated issue of the post-communist Constitution

was guaranteeing private property – a principle insistently requested by

the representatives of the liberal and peasants’ parties, but rejected by the

National Salvation Front majority, politically socialized in accordance with

the precepts of the Soviet socialism and with Proudhon’s slogan from the

19th century which stated that “property is theft!”. Again, the

constitutional model of 1965 prevailed: private property was to be…

protected.

The last big issue of principle that marked the stage of drawing up

the new Constitution was caused by the representatives of the Hungarian

Democratic Union of Romania. Starting from the structure by

nationalities of the country’s population, as well as the constitutional

tradition of the 20th century, the text of our fundamental law stated that

“Romania is a national, sovereign and independent, unitary and indivisible

state” (Article 1), and that “the official language is Romanian” (Article 13).

The fact that almost 90% of the country’s population was made up of

Romanians made the legislators think that the provisions of the two

articles were justified. The Hungarian Democratic Union of Romania,

stating that it was the political representative of the Hungarian population

(7.1% of the total population of Romania in 1990, and 6.5% according to

the census of 2011), contested the definition of the state as national (due

to the fact that there are several nationalities in Romania), contested the

unity of the state (wanting it to be federalized to create administtrative

divisions based on ethnic criteria), as well as the existence of just one

official language (wanting Hungarian to be the second official language of

the Romanian state). The challenges did not change the decision of the

Constituent Assembly. But the insistence of the Hungarian Democratic

Union of Romania regarding this matter and the complaints brought

before international bodies against Romania created tension within the

political setting and inter-ethnic relationships, as well as the relationships

between Romania and Hungaria. At present, those issues have been

transferred to the domain of local administration, with laws providing the

Cristian BOCANCEA

152

use of the languages of minorities in administration in the places where a

national minority accounts for at least 20% of the population.

Combining in an “original” manner the traditions of the interwar

Romanian politics and the experience of the constitutional life of Western

states (mainly France and Sweden), Romania’s Constitution of 1991

changed the organization of the state in a few essential points: a) unlike

during the communist era, the state acquired new attributes, such as:

“state of law, democratic and social”; b) the state powers were given a

new name, that of “public authorities”; c) two totally new institutions

were created: the Constitutional Court and the People’s Ombudsman; d)

beside the traditional rights and freedoms (which existed even in the old

socialist Constitution), new ones were introduced: the right to

information, to free circulation, the protection of the right to privacy, etc.;

e) the Constitution created the legal framework necessary for political

pluralism.

On November 21, 1991, the final form of the Constitution

(resulted from the debates by article and the inclusion of the amendments)

was submitted for approval to the plenum of the Constituent Assembly.

From July 11, 1990 (the official date the process of drawing up the

Constitution started), more than 16 months had passed; Romania’s

Constituent Assembly had completed its mandate in time. The vote for

the adoption of the Constitution was open, nominal and broadcast live by

the Romanian Television. Of the total of 510 members of parliament

(senators and deputies), 509 were present: 414 were for and 95 against the

adoption of the Constitution. All the members of parliament belonging to

the Front, the Romanian National Unity Party and those representing

national minorities (except the Hungarian minority) voted in favour; 5

deputies and senators from the opposition also approved the

Constitution. The members of parliament belonging to the National

Peasants’Party, the Liberal Party and the Hungarian Democratic Union of

Romania voted against. The Constitution came into force after the

referendum of December 8, 1991, the results of which (77.3% of votes in

favour; 20.4% against; 2.3% void votes) were published in the “Official

Journal” no. 250 of December 14, 1991.

The new Constitution of Romania took a decisive step towards

completing the institutional transition. Of course, some of the institutions

established through the fundamental law were yet to be created (the

Constitutional Court and the People’s Ombudsman); the Parliament and


153

the President were to be elected for their first constitutional mandate; the

authorities of the local public administration were provisional, without any

law regarding their organization; the independence and immovability of

magistrates were not yet established. However, from that point on, there

would be legal frameworks necessary to develop the state of law and the

pluralist democracy.

As any legal construction, the fundamental law of Romania

adopted in 1991 was not infallible. From the tensions generated by the

main ideological trends that marked its adoption (national-communist

conservatism, minority ethnicism and liberalism amended with social-

democratic and Christian-democratic precepts) emerged the functional

deficiencies of the post-communist political system. Some were related to

our relationships with the West which, in the context of our Euro-Atlantic

integration process, was not pleased with the constitutional solutions

regarding guaranteeing private property (and the right of ownership for

foreign citizens), the separation of powers, local autonomy, etc. Others

were related to the ambiguities of semi-presidentialism in a society marked

by the fear of dictatorship, but at the same time accustomed to expecting

redeeming solutions from the head of state, in all important matters of

public life.

In 2003, before the completion of the negotiations of Romania’s

accession to the European Union, the Constitution was changed, the

Revision Law no. 429/23.10.2003 having no less than 79 articles. Some of

the significant changes include: specification of the principle of separation

and balance of powers; international treaties that are contrary to

constitutional provisions are to be ratified only after the amendment of

the Constitution; the priority of Community law over the contrary

provisions in domestic law; electoral rights, in local communities, for the

EU citizens residing in Romania; the right to elect and be elected in the

European Parliament; private property is equally guaranteed and protected

by law, whoever the owner may be, and foreigners can acquire ownership

of land, in the conditions of the accession to the EU; the mandate of the

President of the Republic is extended from 4 to 5 years; the chambers of

the legislative body have separate duties; the national currency can be

replaced with that of the EU; the duties of the Constitutional Court are

extended; the Superior Council of the Bench is reorganized.

The amendments of 2003 Europeanized our fundamental law,

making it more flexible in the Euro-Atlantic integration process.

Cristian BOCANCEA

154

Nonetheless, those amendments did not succeed in removing the

inconsistencies of an institutional system created especially by reference to

the people who occupied high public offices after 1990, with their

strengths and weaknesses. At present, we do not have a badly shaped

Constitution, but at the same it isn’t sufficiently clear and secure to

prevent authoritarian lapses, together with those of a parliamentary

majoritarianism able to play at President’s suspension.

It would be good for us to have the time and peace so as not to

change a constitution only for the sake of a circumstantial majority. The

story of the two hundred years of constitutional normativity in Romania

can give us some understanding of what we need to be less demanding

when it comes to our political structures, less irritable when we are shown,

from outside our country, the things that are going wrong, but at the same

time, more inclined to learn the rules of civility.

References:

Angela Banciu, Istoria vieţii constituţionale în România, Casa de editură şi presă

“Şansa” SRL, Bucureşti, 1996.

Cristian Bocancea, La Roumanie du communisme au post-communisme,

L’Harmattan, Paris, Montréal, 1998.

Cristian Bocancea, Meandrele democraţiei. Tranziţia politică la români, Polirom,

Iaşi, 2002.

Sorin Bocancea, Noi şi postcomunismul, Institutul European, Iaşi, 2012.

Radu Carp şi Ioan Stanomir, Limitele Constituţiei. Despre guvernare, politică şi

cetăţenie în România, Editura C. H Beck, Bucureşti, 2008.

Eleodor Focşeneanu, Istoria constituţională a României, Editura Humanitas,

Bucureşti, 1992.

***, Raport al Comisiei Prezidenţiale de Analiză a Regimului Politic şi

Constituţional din România, ianuarie 2009,

http://www.presidency.ro/static/ordine/CPARPCR/Raport_C

PARPCR.pdf

Ioan Stanomir, De la pravilă la Constituţie, Editura Nemira, Bucureşti, 2002.

Brief Considerations on the Notion of Interest in the Context of the ...

155

BRIEF CONSIDERATIONS ON THE NOTION OF INTEREST IN THE CONTEXT OF THE

GOVERNMENT ORDINANCE NR.13/2011 ON THE LEGAL REMUNERATIVE AND PENALTY

INTEREST ON PECUNIARY OBLIGATIONS

Maria DUMITRU-NICA1 Abstract:

Legislation on interest can be characterized, for the recent times, by exaggerated

dynamism. Of all the news generated by the recent adoption of legislation with significative

impact on the legal regime of interest, we analyze in this paper only those on moratory,

cominatory and remunerative interest.

Keywords:

remunerative interest, moratory interest, cominatory interest

1 Associate Professor PhD., "Petre Andrei" University of Iasi, Faculty of Law, [email protected]

Maria DUMITRU-NICA

156

1. Preliminaries In the recent years, two acts with impact on the legal regime of the

interest were adopted. Namely, the Government Ordinance no. 13/2011

on the legal remunerative and penalty interest for pecuniary obligations2 -

which repealed the Government Ordinance no. 9/2000 on the level of

interest in pecuniary obligations3- and Law no. 72/2013 on measures to

combat late payment of the pecuniary obligations resulting from contracts

concluded entered into between professionals and between them and the

contracting authority4 -replacing the Government Emergency Ordinance

no. 119/2007, on measures to combat the late execution of the payment

obligations resulting from commercial contracts5.

2. Notion of "interest" The Romanian legislator from 2011, like the 1864 Civil Code, did

not define the interest corresponding to sums of money.

However, in the specialised literature it is stated that there once

was a legal definition of the interest contained in the Art. 3 paragraph 1 of

the Decree-Law of 05.05.1938 for setting interest rates and eliminating

2 Governmental Ordinance No. 13/2011 on the legal remunerative and penalty interest for monetary obligations as well as for the regulation of certain financial-fiscal measures in the banking sector, published in the Official Gazette of Romania, Part I, no. 607 of 29.08.2011, as amended by the Law no. 72/2013 published in the Official Gazette of Romania, Part I, No. 182 of 02.04.2013. In this paper we will consider the latter under the title of "Government Ordinance no. 13/2011". 3 Government Ordinance no. 9/2000 on the legal interest for pecuniary obligations, published in the Official Gazette of Romania, Part I, no. 26 of 25.01.2000 as amended and approved by Law no. 356/2002 approving the Government Ordinance no. 9/2000 on the legal interest for pecuniary obligations, published in the Official Gazette of Romania, Part I, no. 425 of 18.06.2002. 4 Law no. 72/2013 on measures to combat late payment execution of the pecuniary obligations resulting from contracts entered between professionals and between them and the contracting authority published in the Official Gazette of Romania, Part I, no. 182 of 02.04.2013, law indicated in this paper as the Law nr.72/2013. 5 Government Emergency Ordinance no. 119/2007 on measures to combat late payment obligations resulting from comercial contracts, published in the Official Gazette of Romania, Part I, no. 738 of 31.10.2007, repealed by Law no. 76/2012 on 02.15.2013. In this paper, this act is described under the name "Emergency Ordinance no. 119/2007". The Emergency Ordinance no. 119/2007 transposed the Directive 2000/35/EC of the European Parliament and of the Council on combating late payment in commercial transactions.


157

usury6, which could then be retrieved in the Art. 6 of the Government

Ordinance no. 9/20007 which, in turn, was taken exactly to the Art. 1

paragraph 5 of the Government Ordinance no. 13/2011: "The interest refers

to not only cash amounts considered under this title, but also other peformance

obligations under any title or name, to which the debtor is bound as equivalent to the

use of capital."

We believe that the above provision does not lay down a

definition of interest but only the forms the interest can take: it consists

either of money - as it most often happens - or of any other benefits -

monetary or non-monetary - to which the debtor is obliged to for using a

capital.

In art. 2168 of the Civil Code regarding the loan agreement, we

can find a similar text under an indicative title that supports the statement

above -"Interest modalities"- "the interest rate may be fixed in money or other

performance obligations under any title or designation to which the borrower is pledged

as equivalent to the use of capital."

Chosing a broad and general definition, we can consider the

interest as the amount of money owed to the creditor for depriving them

of using a capital, and this sum is calculated as a percentage for the capital

owed8.

3. Interest picture The current Civil Code follows the line of its 1864 predecessor

and does not systematise the concept of interest according to both its

sources and all functions or nature.

6 The Decree- Law establishing interest rates and eliminating usury, published in the Official Gazette on 05.05.1938, whose Art. 3 reads as follows: (1) Interest means not only sums of money but any other performance obligations under any title or designation to which the borrower is pledged as equivalent to the use of capital in cash. (2) If the interest rate is not fixed in money, the performance obligations will be settled at the prices in force at the loan effective date. Moreover, interest may include accessory obligations, such as: unnecessary expenses or disproportionate compared to the services rendered, commissions for opening, handling or extending the credit, and attorneys' fees, except for those of execution, calculated according to the minimal rate. (3) The calculation of interest does not take into account: operation stamp and registration duties, the cost of bill of exchange stamps, expenses incurred in providing or preserving collaterals as well as the fees that are not disproportionate to the services rendered. 7 Art. 6 of the Government Ordinance No. 9/2000 provides that "the interest means not only the amounts of cash under this title, but any other benefits, under any title or name, the debtor is pledged as equivalent to the use of capital. 8 Maria Dumitru, Legal regime of moratory interest, Law Publishing House, Bucharest, 2010, p. 48.

Maria DUMITRU-NICA

158

To obtain a useful taxonomy of the interest, it seems helpful to

systematize interest, taking into account both the cause of the interest due

obligation and its function, considering as less important the source of

interest or the interest rate9.

According to these criteria, the definitive picture of the interest

would include: remunerative interest - when its purpose is to remunerate

the lender; moratory interest - it is intended to repair damage caused by

the delay in the execution of pecuniary obligations; penalty interest

(comminatory) - increased moratory interest that aims to accelerate the

execution of the monetary obligations, further punishing the recalcitrant

debtor; restitution interest – it is designed to prevent unjust enrichment

independently of any notion of guilt or non-execution; compensatory

interest (legal)10 - interest granted by courts in addition to the reparation

itself, for the time period between the occurrence of the generating fact

and the date of delivery of the final court decision, and whose role is to

compensate for the "delay" caused by the legal proceedings.

Our present analysis will only address the remunerative and

moratory interest, other types of interest being relegated to another study.

4. Remunerative interest. The remunerative interest is the amount of money the debtor

must pay to the creditor because the former temporarily used the capital

of the latter. It has a legal definition contained in Art. 1, paragraph 2, of

the Government Ordinance no. 13/2011: "The interest owed by the debtor who

finds himself bound to give a sum of money at a certain date, calculated for the period

before the time the obligation is due, is called remunerative interest."

9 The qualification of the interest is not determined by the legal or conventional origin of its rate. In the usual legal language and the cuasi majority of the law provisions, the term used is "conventional interest" instead of "conventional rate of the interest", and "legal interest" instead of "legal rate of interest". Interest may be conventional and the interest rate may be legal, as in the case of the loan agreement in which the parties have not provided the amount of the interest; in turn, the interest may be legal and the interest rate may be conventional, for example, the moratory interest owed, according to the art. 1535 of the Civil Code, for the delay in the execution of the obligation whose rate is determined by the parties. As required by art. 1 and art. 2 of the Government Ordinance No. 13/2011, the legal rate of interest is a suppletive tool, by common law, which is used only when there is no or insufficient stipulation of the conventional value. 10 Vincent David, Les intérêts de sommes d′argent, the se, L.G.D.J., Paris, 2005, p. 49; Genevieve.Viney, Patrice Jourdain, Traite de droit civil. Les effets de la responsabilite , ed. a 2-a, L.G.D.J., Paris, 2001, p. 559 et seq.


159

References to remunerative interest are found in the Civil Code, in

the Section 3, paragraph 2, under the name of "Loan interest", in Chapter

XIII, "Loan Agreement", art. 2167 to 2170 of the Civil Code.

The remunerative interest is a payment, remuneration for the use

of the lender’s capital, independently of any idea of delay. The debtor has

the right to use the capital, the creditor is the one who voluntarily and

temporarily entrusted it to them; the remunerative interest is precisely the

payment for this service.

In the lapse of time for which the amount of money was made

available to them, the debtor has no obligation to return it, only the right

to use it but, when the time is due, the debtor has the obligation to repay

both capital and the remunerative interest. The classical case is the loan

agreement.

The remunerative interest has the nature of civil fruit, according to

art. 548, paragraph 4 of the Civil Code, that is, the product of money that

comes to add the assets of the creditor, thus increasing his fortune. As a

result, the remunerative interest is known under the name of "civil fruit

interest".

The remunerative interest is part of a payment of the debt, since,

when signing the contract, the debtor engages himself to reemburse the

capital and also to pay remuneration to the creditor for the service that

was provided to them. Although distinct from the capital that the creditor

voluntarily and temporarily entrusted to the debtor in order to use it, the

remunerative interest payment is to be incorporated into the debt

incumbent upon the debtor for the use of the money11.

5. Moratory interest The moratory interest is the amount of money deserved by the

creditor in order to cover the damage caused by the delay in the execution

of some pecuniary obligations. It is why this interest may be found under

the name of "damage - interest".

It is settled by the art. 1535 of the Civil Code which, under the

indicative title of "Moratory damages in case of pecuniary obligations",

provides that: "(1) Where a sum of money is not paid at due date, the creditor is

entitled to moratory interest, from the date of payment until payment in the amount

agreed upon by the parties or, in its absence, in that provided by law, without having to

prove any damages. In this case, the debtor is not entitled to prove that the injury

11 Maria Dumitru, op. cit., p. 84

Maria DUMITRU-NICA

160

suffered by the creditor as a result of late payment would be lower. (2) If, prior to the

due date, the debtor owed higher interest rates than the legal interest rate, the moratory

interest shall be due in the amount settled before the due date. (3) If the moratory

interest owed is no greater than the legal rate interest, the creditor is entitled to damages

for full compensation for the damage suffered, apart from the legal interest."

In the old Civil Code, the legal regime of the moratory interest

was outlined by the provisions set in the art. 1088.

This interest is inextricably linked to the idea of delay in the

performance of an eligible obligation and, therefore, it is called moratory

interest or delay interest. The use of capital by the debtor is made without

the consent of the creditor, without right; using the money, the debtor is

in fact causing prejudice to the rights of the creditor.

The moratory interest has a reparatory function and the nature of

damages is intended to reduce the patrimonial liability of the creditor, thus

holding constant and reunifying the creditor’s property.

Art. 1535 of the Civil Code is not intended to apply unless

unfulfilled performance by the debtor is encountered.

The interest debt is added to the generated debt it but cannot be

incorporated into it; it maintains its individuality and does not become a

part of the payment. The remunerative interest is considered within the

debt, while the moratory interest is exterior to the debt and is added to it,

without being confused with it, mainly because of the different legal

nature of the debt interest compared to the obligation that should have

been performed12.

6. Comminatory interest (penalty interest) – a species of the moratory interest

Art. 1, paragraph 3, of the Government Ordinance no. 13/2011

defines the penalty interest as "the interest owed by the debtor of the

pecuniary obligation for failing to meet the due date".

The legal penalty interest rate shall be fixed according to the

interest rate of the National Bank of Romania plus 4 percentage points,

according to art. 3 paragraph 2 of the Government Ordinance no.

13/2011, and within the relationships between professionals and between

them and the contracting authorities, the legal penalty interest is set at the

12 Ibidem, p. 85


161

reference rate plus 8 percentage points as required by paragraph 2 of the

same article, paragraph introduced by Art. 20 of Law no. 72/201313.

This increased interest is, at least apparently, an interest of

moratory delay, based on the fault of the debtor. Its main purpose is to

compel the debtor to pay the amount of money, and reveals an increased

price of time.

In addition to its reparatory funtion for the prejudice caused by

the delay in the execution of the obligation -which reflects the reparative

purpose of the interest- the value of the interest rate extremely increased

allows us to consider that it also has a comminatory role, that of

determining the debtor to perform its contractual obligation. Thus, in our

opinion, the penalty interest has a double function: comminatory and

reparatory, and a dual legal nature: private punishment - indemnification.

Actually, the very preamble and the title of the Directive -"on combating

late payment"- suggest that it is intended to coerce the debtor to perform

the payment obligation. However, if we consider that the Directive applies

only to matters related to professionals, where the time (of the

professionals) is more expensive, due to the presumed lucrative purpose

of the relationships involving professional traders and to the importance

and amplitude of the delay effects, the purpose of the penalty interest

would only be reparatory.

Conclusions Apparently, the interest, regardless of its cause, has the same

function: to cover the loss of creditor deprived by the use of its capital.

Whether we speak about the lender that, transferring to the borrower a

sum of money, voluntarily waives its use, or it is about the debtor of an

amount not paid at due date, thus depriving the creditor of its use, or it is

the owner or accipiens unrightfully holding an amount of money,

13 Art. 3 of the Government Ordinance Nr.13/2011 reads: "(1) the legal remuneration interest rate is fixed according to the interest rate of the National Bank of Romania, which is the interest rate of the monetary policy established by decision of the Board of Directors of the National Bank of Romania. (2) The legal penalty interest rate shall be set at the reference rate plus 4 percentage points. (21) For the relationship between professionals and between them and the contracting authorities, the legal interest penalty is set at the reference rate plus 8 percentage points. (3) For legal relationships not arising from business profit operations, within the meaning of art. 3, paragraph (3) of Law no. 287/2009 on the Civil Code, republished, the legal rate is determined according to paragraph (1) and paragraph (2) decreased by 20 %. (4) The interest rate of the National Bank of Romania shall be published in the Official Gazette of Romania, Part I, under the care of the National Bank of Romania, whenever the monetary policy rate will change."

Maria DUMITRU-NICA

162

depriving the true owner of its use, the interest always comes in

counterparty and proportion to the length of the withdrawal of capital,

whether intentional or not.

There is the tendency to do a mix of all these circumstances,

considering that are close concepts, even similar. As shown, however,

from the perspective of the law of obligations, the interest presents a great

variety: the interest may be remunerative, moratory, compensatory,

restitution or comminatory (penalty).

References :

David, Vincent, Les intérêts de sommes d′argent

Viney, Genevieve, Jourdain, Patrice

responsabilite, ed. a 2-a, L.G.D.J., Paris, 2001.

Dumitru, Maria, Legal regime of moratory interest, Law Publishing House,

Bucharest, 2010.

The Decree- Law establishing interest rates and eliminating usury,

published in the Official Gazette on 05.05.1938

Government Ordinance No. 9/2000 provides that "the interest means not

only the amounts of cash under this title, but any other benefits,

under any title or name, the debtor is pledged as equivalent to

the use of capital.

Government Emergency Ordinance no. 119/2007 on measures to combat

late payment obligations resulting from comercial contracts,

published in the Official Gazette of Romania, Part I, no. 738 of

31.10.2007, repealed by Law no. 76/2012 on 02.15.2013.

Governmental Ordinance No. 13/2011 on the legal remunerative and

penalty interest for monetary obligations as well as for the

regulation of certain financial-fiscal measures in the banking

sector, published in the Official Gazette of Romania, Part I, no.

607 of 29.08.2011, as amended by the Law no. 72/2013

published in the Official Gazette of Romania, Part I, No. 182 of

02.04.2013.

Law no. 72/2013 on measures to combat late payment execution of the

pecuniary obligations resulting from contracts entered between

professionals and between them and the contracting authority

published in the Official Gazette of Romania, Part I, no. 182 of

02.04.2013.

The New Romanian Penal Code in the European Context

163

THE NEW ROMANIAN PENAL CODE IN THE EUROPEAN CONTEXT

Ionuţ-Alexandru TOADER1

Abstract: Elaborating and adopting a new Penal Code represents a crucial moment in the

legislative evolution of any state. The decision to move on to a new Penal Code is not simply the

manifestation of the political will, but equally a corollary of the socio-economical evolution and

of the doctrine and jurisprudence.

The profound transformations on a political, social and economical plan which have

taken place in the Romanian society for almost four decades since the adoption of the Penal

Code in 1968, and especially after 1989, leave no room for doubt that adopting a new Penal

Code was necessary.

Keywords: New Penal Code, supportive causes and the unimputability, punishment, sanctioning

system, the renouncement to apply the punishment

1 Phd student, assistant teaching at Law Faculty, “Petre Andrei” University from Iaşi, This article was funded POSDRU/159/1.5/S/141699 contract, financed from the European Social Fund through the Sectoral Operational Programme Human Resources Development 2007-2013.


164

I. General considerations Once our country has joined the European Union, a series of

mechanisms which have favored the increase of cross-border type crimes

have been set off. In order to face this phenomenon, judicial bodies were

forced to adapt to it, but to be able to fight it off, they had to create an

appropriate legal frame.

In the elaboration process of the new Penal Code the following

objectives have been pursued:

- creating a penally coherent legislative frame and avoiding needless

norm overlapping in the present Penal Code and in special laws;

- simplifying regulation of substantial law, meant to facilitate their

application unitarily and with expedience in the activity of the

judicial bodies;

- ensuring the accomplishment of the exigencies which derive from

the fundamental principles of penology established by the

Constitution and by the pacts and treaties regarding the

fundamental human rights, to which Romania is part of;

- transferring regulations adopted throughout the European Union

to the national penal legislative frame;

- conforming the Romanian substantive criminal law with the

systems of other member states of the European Union, as a

premise of judicial cooperation in the penal field based on mutual

acknowledgement and trust;

The general part of the new Penal Code has suffered a series of

important alterations, or, better said, it was rethought from the basics.

II. Main alterations brought by the new Penal Code in the general part

A crime is defined in the new Penal Code in article 15 paragraph

(1) as „a statutory deed, done with guilt, unjustified and imputable to the

person who did it.” The 1968 Penal Code defined crime (art. 17,

paragraph (1)) as the deed which brings about social danger, done with

guilt and statutory.

One can notice that in the new Penal Code only two of the

essential elements which appeared in the old Penal Code can be found,

that is the deed is statutory and done with guilt.

From the perspective of the new Penal Code, a crime is

conditioned by cumulatively meeting the following 4 essential features:


165

- typicity which requires that the deed meets all the conditions stated

in the incrimination norm, in the light of all the objective and

subjective elements;

- anti-legality by which it is emphasized that the deed is not permitted

by legal order, feature which is determined by acknowledging the

lack of supportive causes incidence;

- imputability meaning that the deed can be imputed to the person

who did it, feature which is determined by acknowledging the lack

of unimputability causes incidence;

- guilt – requirement which makes it mandatory that the deed be

done with the guilt form required by the special norm of

incrimination (intent, fault, oblique intent).

The lack of one of the essential traits leads to the non-existence of

the crime and, as consequence, to the exclusion of penal liability as the

crime is the sole basis of penal liability.

According to art. 16 paragraph (6) new Penal Code, „The deed

consisting of an action or inaction is a crime when it is done with intent.

The deed done with fault is a crime only when the law states so

expressly.” Drawing a parallel with the similar regulation of the 1968

Penal Code which stated at art. 19 paragraph (3) “the deed consisting in

an inaction is a crime whether it is done with guilt or fault, apart from the

case when the law sanctions only when it is done with intent”, we can

reach the conclusion that art. 16 paragraph (6) of the new Penal Code will

produce retroactive effects, in the way that it will be considered a law of

decriminalization for a series of crimes done with fault stated as such in

the old Penal Code. For example, the crime in art. 262, 1968 Penal Code:

the non-denunciation of crimes could be done subjectively, both with

intent and with fault, as stated in art. 19 paragraph (3). Nevertheless, the

new Penal Code incriminates at art. 266 the same crime, but in accordance

with art. 16 paragraph (6), this one can be done only with intent.

The new Penal Code regulates in art. 18-31 the supportive causes

and the unimputability causes which, in the light of the old regulation,

were causes which eliminated the penal feature of the deed. The

supportive causes are as follows: self-defense (art. 19), state of necessity

(art. 20), exercising a right or fulfilling an obligation (art. 21) – also stated

in the 1936 Penal Code as well as in most of the European legislations

(art.20, point 7 Spanish Penal Code, art. 51 Italian Penal Code, art. 36

Portuguese Penal Code) and the consent of the aggrieved party (art. 21)


166

also stated in the European Legislations (art. 50 Italian Penal Code, art 38

Portuguese Penal Code). The last two supportive causes mentioned

cannot be found in the old legislation.

An important alteration was brought by the new Penal Code in

relation with the plurality of crimes. Thus, for the concurrence of crimes

stated at art. 38 new Penal Code, the calculation of the resulting

punishment is done in two stages: The punishment for each crime is

established and, the heaviest punishment is mandatorily increased with

one third of the total of the other punishments. When imprisonment and

a fine have been established as punishments, the fine is added in its

entirety to the imprisonment punishment.

This type of sanctioning system limits the freedom of the judge to

establish a quantum of the punishment that is equitable according to his

conscience and assessment, which can lead to applying absurd

punishments in certain situations. For example, lately people have been

deceived over the phone, in the way that the aggrieved party is tricked into

believing that a close relative has been in some kind of accident and, in

exchange for a sum of money, the deceiver promises to help the

respective relative get out of trouble. The problem is that with this type of

crime, there can be up to 200 victims. If only one crime of the 200 was

committed after February 1st 2014, the date when the new Penal Code was

adopted, according to the law which applies the new Penal Code, the

sanctioning system for the crimes concurrence will be the one stated in

the new Penal Code. According to art. 244 new Penal Code, deceiving

through fraudulent means or through using false names is punishable by

one to five years in prison. Suppose the judge establishes for each crime a

1 year in prison punishment, and then applies the regulations for the

crimes concurrence, thus resulting a punishment of 67 years and 4 months

in prison.

Taking into consideration the general limitations of prison

punishment, stated in art. 60 new Penal Code, the judge will have to set a

punishment of 30 years in prison, which, in the light of the seriousness of

the crimes committed, is absurd.

The sanctioning system of postsentencing recurrence (art. 42 new

Penal Code) was changed compared to the old regulation regarding

arithmetic cumulus. There has also been an alteration regarding the

postexecutory recurrence sanctioning system by mandatorily increasing by

half the limits of punishment stated by the law.


167

Unlike the old legislation which stated that sanctioning the

international recurrence (the first term of recurrence consists of a

conviction for a crime committed abroad) was optional, the new penal law

states that this recurrence be mandatorily sanctioned if two conditions are

met: there has to be a double incrimination and the foreign court order

has to be acknowledged according to the law. There is an exception from

the incumbency of the double incrimination, stated by Law 302/2004 at

art. 239 paragraph (1) for a number of 38 crimes (participating in an

organized criminal group, terrorism, person trafficking, child sexual abuse

and child pornography, drug and substances trafficking, arms,

ammunition and explosives trafficking, corruption, fraud – including that

which damages the financial interests of the European Communities as

stated in the July 26th 1995 Convention regarding the protection of the

financial interests of the European Communities, laundering crime

products, counterfeiting currency – including euro, IT crimes,

environment crimes – including endangered species of animals and plants

trafficking, facilitating illegal entrance and residence, homicide, battery,

human organs and tissue trafficking, kidnapping, unlawful confinement

and taking hostages, racism and xenophobia, organized theft or robbery,

illegal trafficking of cultural goods – including antiques and works of art –

deceit, racketeering and extortion, products counterfeiting and piracy,

illegal trafficking of hormonal substances and other growth factors, illegal

trafficking of nuclear or radioactive materials, stolen vehicles trafficking,

rape, arson, crimes in the jurisdiction of the International Penal Court,

hijacking of ships and planes, sabotage, behaviors which break regulations

related to traffic, including breaking regulations concerning driving hours

and rest periods, regulations concerning dangerous goods, smuggling,

breaking intellectual property rights, threats and acts of violence against

people, including violence at sports events, prejudices under penal law,

theft), situation in which the analysis of the double incrimination is no

longer necessary as the decisions from the issuing state are admitted and

carried out.

Another change of outlook was brought by the new Penal Code

by changing the order of applying the states or causes of aggravation of

the punishment, as follows: aggravating circumstances, ongoing crime,

postexecutory recurrence, concurrence, postsentencing recurrence,

intermediate plurality.


168

The new Penal Code maintains the same outlook on the types of

main punishments which can be set for the major criminal. The main

punishments are stated at art. 53 new Penal Code as follows: life sentence,

prison (15 days-30 years) and penal fine.

The institution of penal fine was completely reformed thus giving

the judge a greater power of assessing its quantum. The quantum of the

penal fine is established through the fine per day system. The

corresponding sum of a fine per day is 10-500 lei, which is multiplied with

the number of days (30-400 days). The fine per day is established taking

into consideration the material situation of the convict and the real

obligations of the convict to the persons whom he supports.

This system of application of the fine punishment is seen in the

penal codes of Germany (§ 40), Spain (art. 50), France (art. 131-5),

Portugal (art. 47), Switzerland (art. 34, in effect since January 1st 2007),

Sweden (chapter 25, section 1), Finland (chapter 2, section 4).

The number of days for the fine is established within the

following special limits:

- 60 and 180 days when the law states only paying the fine for the

crime committed;

- 120 and 240 days when for the crime committed the law states

paying the fine and punishment by prison for 2 years at the most;

- 180 and 300 days when for the crime committed the law states

paying the fine and punishment by prison for more than 2 years.

According to art. 187 new Penal Code, “The punishment stated by

the law means the punishment stated in the text of the law which

incriminates the deed committed in consumed form, without taking into

consideration the causes of reduction or increase of the punishment.

The new penal law allows for the optional increase by a third of the

special limits of the fine per day if a patrimonial benefit was pursued when

committing the crime.

When the convict is objectively unable to pay the fine established

by the sentence, the judge delegated with the enforcement has the

possibility to replace the enforcement method, if the convict consents to

it, with unpaid community work, except when the convict cannot work

for reasons of health [art. 63, paragraph (3)].

The obligation to do unpaid community work ceases when the

fine or the rest of the fine is paid by substracting the fine days carried out

by means of unpaid community work.


169

The old legislation allowed for replacing the penal fine with prison

punishment only when the law stated an alternate prison and fine

punishment for the crime for which the criminal was convicted, and the

application of the penal fine punishment was not established because

mitigating circumstances were retained. The new legislation eliminates

those obstacles stated in the old law, allowing the judge to replace penal

fine with prison when, according to the law for which the criminal was

sentenced only the fine punishment is stated or when the penal fine

punishment was set because mitigating circumstances were retained.

The new penal law does not bring essential alterations regarding

the legal mitigating circumstances and aggravating circumstances because,

basically, the old and the new regulations are the same. As for the judicial

aggravating circumstances, the new legislation no longer allows their

retention since this would come into conflict with art. 7 from the

European Convention of Human Rights.

Regarding the effects of the mitigating circumstances, drawing a

parallel with the old legislation, these are more diminished, the special

limits stated by the law being reduced by a third, and when the law states

that a complementary punishment is mandatory, retaining the mitigating

circumstances no longer offer the judge the possibility of not applying

such a punishment.

The new Penal Code regulates in art. 80-82 a new institution, “the

renouncement to apply the punishment”. The judge can relinquish the

application of the punishment when, in relation to the criminal and the

seriousness of the crime committed, he assesses that applying a

punishment is not adequate because of the negative consequences which

the punishment would have on the person committing the crime.

Criminals can benefit from this institution unless they have a criminal

record and the punishment stated by the law is of no more than 5 years.

The renouncement to apply the punishment could work, for

example, when a major criminal without a criminal record steals a bag of

potatoes from the side of a public road.

Regulating the renouncement to apply the punishment was

necessary because the sentence “deed which presents a social danger” was

eliminated from the definition of the crime, thus giving the possibility to

the judge to no longer set a punishment in certain cases.


170

This institution is also regulated in legislations from Germany (§

60 Penal Code), Portugal (art. 60 and 74 Penal Code), France (art. 132-58

Penal Code), Switzerland (art. 53-54 Penal Code).

The new penal law modifies all the system of sanctioning minor

criminals. Only educative measures, not punishments – as the old legislation

allowed, can be applied to minor criminals aged 14-18.

Educative measures can suppose confinement or not. The rule of

the matter here is represented by applying a non-confinement measure,

except when the punishment stated by the law is 7 years or more, or the

minor has been sentenced to a non-confinement sentence and he

commits a crime again.

The educative non-confinement measure are: a stage of civic

training (can be set for a period of 1-3 years) and boarding in a detention

center (which can be set for a period of 2-5 years, except when the

punishment for the crime is prison for 20 years or more or life sentence,

when it can be set for a period 5-15 years). The duration of the measure is

compatible with the international regulations and practices (for example,

the Resolution adopted in the Congress of the International Association

of Penal Law in Beijing in 2004 recommends all states not to set

confinement punishments over 15 years for minors).

The new Code of penal procedure, unlike the old procedural

legislation, no longer gives the minor suspects/defendants a privileged

procedural position, as they are, just like major suspects/defendants,

subject to a lapse term in order to be a civil part in a penal trial, and when

preventive measures are set, they must be met in the same conditions as

for the majors.

The model which inspired the regulation in the new penal law is

the Organic Law no. 5/2000 concerning the regulation of penal

responsibility of the minors in Spain (modified by the Organic Law no.

8/2006), but regulations from the law of France (February 2nd 1945

Organic Bill with subsequent alterations), Germany (the 1953 Law of

courts for minors with subsequent alterations) and Austria (the 1988 law

concerning juvenile justice) were taken into consideration.

III. A general analysis of the special part of the new Penal Code

The special part comprises the main crimes, grouped according to

the social values whose protection is achieved through incrimination.


171

There have been considered, in order to be included in the special part of

the Code, categories of crimes with which the judicial practice is faced

frequently, those which damage social values for a democratic society, and

also the deeds whose incrimination is imposed by the development of the

contemporary society.

As for the special part, for systematizing purposes, the structure of

previous penal codes was abandoned and the crimes which bring damage

to persons and their rights were first regulated, and then the crimes which

damage the attributes of the state.

This structure can be found in the most European recent codes,

such as in Austria, Spain, France, Portugal etc and reflect the current

conception on the place of the individual and his liberties in the hierarchy

of the values which are protected, including by penal means.

The new penal law significantly reduces the special maximum of

the punishment for most of the crimes. For example, theft (art. 209, 1968

Penal Code) was sanctioned with a punishment of 1-12 years in prison

and, according to the new legislation it is sanctioned with prison

punishment for 6 months to 3 years or fine.

As to the special minimum of the punishment, the legislator did

not maintain the same outlook of reduction, because there are many

crimes whose special minimum limit increased, even if the special

maximum decreased. As examples, we can mention the following crimes:

determining or facilitating suicide (3-7 years in prison, compared to the

punishment set by the old penal law, that is 2-7 years in prison), fatal

battery or bodily harm (6-12 years in prison, compared to the punishment

set by the old penal law, that is 5-15 years of prison), material forgery in

official documents (6 months-3 years in prison, compared to the

punishment set by the old penal law, that is 3 months-3 years in prison).

From the analysis of the special part of the new Penal Code we

can notice a significant increase of prison punishments alternated with

penal fine punishments. There can also be noticed a change of the penal

policy through emphasizing the pecuniary type sanctions, alteration

sustained by the possibility of the court of law to apply prison and fine

punishment for the same crime if material benefits were pursued. Another

argument which sustained the emphasizing of the pecuniary character of

the punishments is the significant increase of the general limits of the

penal fine in the new law from 300-200.000 lei, compared to the old

legislation which stated limits between 100-50.000 lei.


172

The new penal law adapts itself to the new social realities and to

the development of IT which has become essential for most Romanian

citizens, through incrimination of new deeds as crimes. We can mention

the following examples: murder at the request of the victim (art. 190),

fetus damaging (art. 202), harassment (art. 208), recruiting minors for

sexual purposes (art. 222), trespassing professional headquarters (art. 225),

invading private life (art. 226), abuse of trust through fraud of lenders (art.

239), insurance deceit (art. 245), patrimonial exploitation of a vulnerable

person (art. 247), obstructing justice (art. 271), revenge for getting help

from justice (art. 274), abusive use of position for sexual purposes (art.

229), forgery of technical records (art. 324).

With the implementation of the new penal legislation the objective

was to standardize the solutions given by courts in terms of legal framing,

thus eliminating the controversies both in the legal practice and in the

specialty doctrine. The new Penal Code no longer promotes the

aggravating circumstance from art. 178 paragraph (3) 1968 Penal Code,

which appeared when manslaughter was committed by a driver of a

mechanic traction vehicle who had a blood alcohol content over the legal

limit or who had been drinking. In the new law, the respective deeds will

be classified as crimes concurrence, thus eliminating present controversies

both in the specialty literature and in the legal practice, either as a

concurrence, or a complex crime.

Another controversy which disappeared when the new penal law

was in effect is represented by the legal classification of breaking an

entrance in order to steal goods. In the legal practice, this deed had two

distinct classifications: a complex crime of aggravated theft done by

breaking an entrance [art. 209 paragraph (1) letter i)] as well as a plurality

of crimes, a concurrence of aggravated theft [art. 209 paragraph (1) letter

i)] and trespassing (art. 192). The new Penal Code ends this controversy

by clearly regulating in art. 229 paragraph (2) letter b) the theft done by

trespassing a home or a professional headquarter as a complex single

crime.

Conclusions Starting with February 1st 20014, Romania has a new modernized

Penal Code which restructures the main existent penal institutions and

introduces new penal institutions in order to meet the new challenges of

social realities.


173

The efficiency of a new penal law can be observed over a longer

period of time in the decrease of the number of committed crimes, of the

number of criminals who repeat a crime during their punishment or after,

as well as in the recovery of material prejudice of the state.

One first test to which the new Penal Code is subjected is through

applying a more favorable penal law until the final judgment of the cause.

In the legal practice, there are controversies regarding the application of a

more favorable penal law; some courts consider that the more favorable

penal law is applied in its entirety, others consider that the more favorable

penal law is established through the analysis of each institution

(concurrence, recurrence, ongoing crime, mitigating circumstances,

aggravating circumstances, limitation etc.), thus a combination of

dispositions of the old penal law and of the new penal law being possible.

Such inconsistent practice is very dangerous because there can be

very large differences between the applied punishments. Suppose a

criminal is judged after the new Penal Code is in effect for a concurrence

of two crimes of aggravated theft using a gun (2-7 years in prison

punishment according to the new Penal Code/3-15 years in prison

punishment according to the 1968 Penal Code) and two crimes of deceit

using false names (1-5 years in prison punishment according to the new

Penal Code/3-15 years in prison punishment according to the 1968 Penal

Code) done in the light of the old legislation for which the court opts to

apply the special minimum of the punishment for each crime. When the

court considers that the more favorable penal law is applied in its entirety,

the new Penal Code is the more favorable law in terms of punishment for

each crime, but the punishment which results is prison for 3-6 months. If

the more favorable law were applied, through analyzing all the penal

institutions, the resulting punishment would be 2 years in prison.

The Constitutional Court practice supports the application of the

more favorable law in its entirety. Because of the inconsistent practice of

the courts, The High Court of Cassation will decide in the following

period by a recourse in the interest of the law.

Although at a first glance the new penal law seems milder when it

comes to punishments, after a thorough analysis we can notice that this

reduction of punishments is counterbalanced by the aggravating causes

(concurrence, recurrence, intermediate plurality), the reduction of

mitigating circumstances and the compulsoriness to apply complementary


174

punishments for a higher number of crimes; thus we can conclude that

the new penal law is not milder in every circumstance.

Acknowledgment: This article was funded POSDRU/159/1.5/S/141699 contract,

financed from the European Social Fund through the Sectoral

Operational Programme Human Resources Development 2007-2013.

References:

Boroi Alexandru, „Drept penal. Partea Specială”, Ed. C.H.Beck, 2011;

Jidovu Nicu, „Drept procesual penal. Parte Generală, Ed. Sitech, 2014;

Pascu Ilie, „Noul Cod penal comentat. Parte Generală, Ed. Universul

Juridic, 2014

Tudorel Toader, „Noul Cod penal. Comentarii pe articole”, Ed.

Hamangiu, 2014;

Udroiu Mihail, „Drept Penal. Parte Generală. Noul Cod penal, Ed. C.H.

Beck, 2014;

Udroiu Mihail, „Drept Penal. Parte Specială. Noul Cod penal, Ed.

C.H.Beck, 2014;

Udroiu Mihail, „Procedură Penală. Parte Generală”, Ed. C.H.Beck, 2014

Journal of legal studies 1-2/2014

Documents

Transcript of Journal of legal studies 1-2/2014