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„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
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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
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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
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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
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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
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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.
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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.
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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
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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
Foreign Account Tax Compliance Act (FATCA) and Agreement with …
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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,
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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
Foreign Account Tax Compliance Act (FATCA) and Agreement with …
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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).
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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).
Foreign Account Tax Compliance Act (FATCA) and Agreement with …
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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
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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.
Foreign Account Tax Compliance Act (FATCA) and Agreement with …
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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).
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References:
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).
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
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,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1118805
(accessed on 04.09.2013).
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).
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
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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]
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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.
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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
Constantin MANOLACHE
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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.
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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.
Constantin MANOLACHE
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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).
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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.
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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
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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
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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
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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
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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.
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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
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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.
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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.
Constantin MANOLACHE
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
Foreign Account Tax Compliance Act (FATCA) and Agreement with …
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
Constantin MANOLACHE
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
Foreign Account Tax Compliance Act (FATCA) and Agreement with …
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
Constantin MANOLACHE
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.
Foreign Account Tax Compliance Act (FATCA) and Agreement with …
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/about-eu/institutions-bodies/council-eu/index_fr.htm
http://europa.eu/legislation_summaries/institutional_affairs/institutions
_bodies_and_agencies/l14576_ro.htm
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/
The Principle of the Internet Neutrality as a Freedom of Expression and …
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.
Angela MÎŢĂ - BACIU
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
The Principle of the Internet Neutrality as a Freedom of Expression and …
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
Angela MÎŢĂ - BACIU
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
The Principle of the Internet Neutrality as a Freedom of Expression and …
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
Angela MÎŢĂ - BACIU
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
The Principle of the Internet Neutrality as a Freedom of Expression and …
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.
Angela MÎŢĂ - BACIU
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
The Principle of the Internet Neutrality as a Freedom of Expression and …
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://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf
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://ec.europa.eu/information_society/policy/ecomm/doc/library/co
mmunications_reports/netneutrality/comm- 19042011.pdf
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://ec.europa.eu/information_society/policy/ecomm/doc/library/co
mmunications_reports/netneutrality/comm- 19042011.pdf
http://www.cdep.ro/
http://webapp.senat.ro/pdf/11L378FG.
http://webapp.senat.ro/pdf/11L378EM.
http://webapp.senat.ro/pdf/11L378CA.
Angela MÎŢĂ - BACIU
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
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.
The Law Applicable to the Procedure Form – Comparison Between …
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
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.
The Law Applicable to the Procedure Form – Comparison Between …
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.
The Law Applicable to the Procedure Form – Comparison Between …
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.
The Law Applicable to the Procedure Form – Comparison Between …
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.
The Law Applicable to the Procedure Form – Comparison Between …
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
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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.
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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
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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.
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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.
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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.
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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.
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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
The Law Applicable to the Procedure Form – Comparison Between …
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.
The Law Applicable to the Procedure Form – Comparison Between …
77
E. Internet sources:
http://csj.md.
http://eur-lex.europa.eu.
http://lex.justice.md.
http://www.mfa.gov.md/tratate-internationale-rm.
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].
Eduard BOISTEANU, Iulia DRUMEA
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
The Legal Status of the Elected Employees’ Representatives in the …
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
Eduard BOISTEANU, Iulia DRUMEA
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
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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.
Eduard BOISTEANU, Iulia DRUMEA
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
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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
Eduard BOISTEANU, Iulia DRUMEA
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
The Legal Status of the Elected Employees’ Representatives in the …
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.
Eduard BOISTEANU, Iulia DRUMEA
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.
The Legal Status of the Elected Employees’ Representatives in the …
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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).
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
The Local Public Administration in the Republic of Moldova
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.”
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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).
The Local Public Administration in the Republic of Moldova
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.
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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
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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.
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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
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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.
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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,
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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
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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
The Local Public Administration in the Republic of Moldova
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
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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
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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
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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
The Local Public Administration in the Republic of Moldova
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
The Local Public Administration in the Republic of Moldova
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.
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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
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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
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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
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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
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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
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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 ].
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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.
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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,
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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
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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
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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
The Legality of the State Authority from the Value Judgement to the ...
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
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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:
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3. Election Code no.1381-XIII of 21.11.97. In: Official Monitor of the
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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.
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8. Easton D. The Political system: Au Juquiry into the State of Political
Science. Second Edition. New York, Alfred A. Knopt, 1971,
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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.
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results of the referendum of May 23, 1999 from 15.06.1999. In:
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19. Pactet P. Institutions politiques. Droit constitutionnel. Paris, 1991.
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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.
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and law. Chisinau, 2001, p.77-79.
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
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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
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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
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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
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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
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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
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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.
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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
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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).
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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 ...
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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.
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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.
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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.
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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
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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
Brief Considerations on the Notion of Interest in the Context of the ...
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."
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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.
Ionuţ-Alexandru TOADER
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:
The New Romanian Penal Code in the European Context
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)
Ionuţ-Alexandru TOADER
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
Ionuţ-Alexandru TOADER
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
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