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Faculty of Law and Administrative Sciences

Valahia University of Târgovişte, Romania
International Conference
The 17 -th Editio n
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Norms, Values and Contemporary Landmarks
Târgovişte, June 4-5, 2021
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VALAHIA UNIVERSITY OF TÂRGOVIŞTE

FACULTY OF LAW AND ADMINISTRATIVE SCIENCES
The Center for Research in Juridical and Administrative Sciences
in partnership with
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SCIENTIFIC COMMITTEE
Prof. Ion M. ANGHEL, PhD – Romanian Society of European Law, Romania

Prof. Nadia Cerasela ANIŢEI, PhD – „Dunărea de Jos” University of Galaţi, Romania
Prof. Vlad BARBU, PhD – „Alexandru Ioan Cuza” Police Academy of Bucharest, Romania
Prof. Antonio BAYLOS, PhD – Castilla la Mancha University, Spain
Prof. Carmen BOLDÓ RODA, PhD – Jaume I University, Spain
Prof. Victor CASTRILLON LUNA, PhD – Autonomous University of Morelos, Mexico
Prof. Eugen CHELARU, PhD – University of Pitesti, Romania
Prof. Ionel DIDEA, PhD – University of Pitesti, Romania
Prof. Martha Elisa MONSALVE CUELLAR, PhD – ILTRAS, Colombia
Prof. Irina MOROIANU-ZLĂTESCU, PhD – SNSPA Bucharest, Romania
Prof. Sache NECULAESCU, PhD – Valahia University of Târgovişte, Romania
Prof. Eduardo OLIVA GÓMEZ, PhD – Autonomous University of Morelos, Mexico
Prof. Carmen PARASCHIV, PhD – Titu Maiorescu University of Bucharest, Romania
Prof. María José ROMERO RÓDENAS, PhD – Castilla la Mancha University, Spain
Prof. Veronica STOICA, PhD – „Alexandru Ioan Cuza” Police Academy of Bucharest, Romania
Prof. Alexandru Ţiclea, PhD – Ecological University of Bucharest, Romania
Prof. Dan ŢOP, PhD – Valahia University of Târgovişte, Romania
Prof. Verginia VEDINAŞ, PhD – University of Bucharest, Romania
Assoc. Prof. Maria Soledad CAMPOS DIEZ, PhD – Castilla la Mancha University, Spain
Assoc. Prof. Ana Isabel COSTA, PhD – Polytechnic Institute of Santarém, Portugal
Assoc. Prof. Andreea DRĂGHICI, PhD – University of Pitesti, Romania
Assoc. Prof. Beatriz GARCIA SANCHEZ, PhD – Rey Juan Carlos University, Spain
Assoc. Prof. Ilioara GENOIU, PhD – Valahia University of Târgovişte, Romania
Assoc. Prof. Gheorghe GHEORGHIU, PhD – Valahia University of Târgovişte, Romania
Assoc. Prof. Miryam GONZÁLEZ RABANAL, PhD – National Distance Education University, Spain
Assoc. Prof. Camelia IGNĂTESCU, PhD – „Ştefan cel Mare” University of Suceava, Romania
Assoc. Prof. Nikitas-Spiros KOUTSOUKIS, PhD – University of Peloponnese, Greece
Assoc. Prof. Cezar MANDA, PhD – SNSPA Bucharest, Romania
Assoc. Prof. Constanţa MĂTUŞESCU, PhD – Valahia University of Târgovişte, Romania
Assoc. Prof. Livia MOCANU, PhD – Valahia University of Târgovişte, Romania
Assoc. Prof. Carmen NENU, PhD – University of Pitesti, Romania
Assoc. Prof. Rada POSTOLACHE, PhD – Valahia University of Târgovişte
Assoc. Prof. Marc Rîcheveaux, PhD – Université Littoral Côte d’Opale, France
Assoc. Prof. Cristina RODRIGUEZ YAGUE, PhD – Castilla la Mancha University, Spain
Assoc. Prof. Julia ROPERO CARASCO, PhD – Rey Juan Carlos University, Spain
Assoc. Prof. Rafael SÁNCHEZ DOMINGO, PhD – Burgos University, Spain
Assoc. Prof. Adrian ŢUŢUIANU, PhD – Valahia University of Târgovişte, Romania
Assoc. Prof. Andreea Simona UZLĂU, PhD – Dimitrie Cantemir University of Bucharest, Romania
Lect. Ivan Vasile IVANOFF, PhD – Valahia University of Târgovişte, Romania
Lect. Răzvan Horaţiu RADU, PhD – „Al. I. Cuza” University of Iaşi, Romania
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ORGANIZING COMMITTEE
Assoc. Prof. Constanţa MĂTUŞESCU, PhD – Valahia University of Târgovişte

Assoc. Prof. Claudia GILIA, PhD – Valahia University of Târgovişte
Assoc. Prof. Livia MOCANU, PhD – Valahia University of Târgovişte, Romania
Assoc. Prof. Lavinia VLĂDILĂ, PhD – Valahia University of Târgovişte
Assoc. Prof. Elise-Nicoleta VÂLCU, PhD - University of Pitesti
Lect. Denisa BARBU, PhD – Valahia University of Târgovişte
Lect. Emilian BULEA, PhD – Valahia University of Târgovişte
Lect. Ramona DUMINICĂ, PhD - University of Pitesti
Lect. Nicoleta ENACHE, PhD – Valahia University of Târgovişte
Lect. Mihai GRIGORE, PhD – Valahia University of Târgovişte
Lect. Daniela IANCU, PhD – University of Pitesti
Lect. Steluţa IONESCU, PhD – Valahia University of Târgovişte
Lect. Cristian MAREŞ, PhD – Valahia University of Târgovişte
Lect. Olivian MASTACAN, PhD – Valahia University of Târgovişte
Lect. Manuela NIŢĂ, PhD – Valahia University of Târgovişte
Lect. Andra PURAN, PhD – University of Pitesti
Lect. Lavinia SAVU, PhD – Valahia University of Târgovişte
Lect. Amelia-Veronica SINGH, PhD - University of Pitesti
Lect. Dan GUNĂ, PhD – Valahia University of Târgovişte
Assist. Claudia-Elena MARINICĂ, PhD – SNSPA Bucharest
Assist. Graţiela-Florentina MORARU, PhD – Castilla la Mancha University, Spain
Marius MIHĂLĂCHIOIU, PhD – Dambovita County Tribunal
Doru Lucian TUDOR, Public notary –Chamber of Public Notaries Ploiesti
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Conference Paper
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CONTENTS
TOWARDS A BETTER AND MORE EFFECTIVE PROTECTION OF VULNERABLE

PEOPLE NOWADAYS (Irina Moroianu Zlătescu, Claudia Elena Marinică) / 13
OBLIGATION OF THE EMPLOYER TO INFORM THE PERSON SELECTED FOR

THE EMPLOYMENT OR, WHERE APPROPRIATE, THE EMPLOYEE, WITH
REGARD TO THE ESSENTIAL CLAUSES WHICH HE INTENDS TO REGISTER
IN THE CONTRACT OR TO REGULATE THEM EMERGENCY ORDINANCE
37/2021 (Vlad Barbu, Gheorghe Lucian) / 26
THE LAW APPLICABLE TO THE SEPARATION OF BODY IN THE ROMANIAN

PRIVATE INTERNATIONAL LAW (Nadia-Cerasela Aniţei) / 33
CURRENT ISSUES REGARDING THE ENTERPRISE CONTRACT (Livia Mocanu) / 40
DOMESTIC VIOLENCE AGAINST WOMEN IN SPAIN. AN JURIDICAL AND

ECONOMETRIC APPROACH IN PANDEMIC TIMES (Lavinia Mihaela Vlădilă,
Nicoleta Valentina Florea) / 47
INNOVATIVE ELEMENTS IN THE AREA OF DOMESTIC VIOLENCE IN AGREEMENT

WITH THE COMMUNITARIAN REGULATIONS (Elise-Nicoleta Vâlcu) / 59
PREPARATION OF MARITAL STATUS DOCUMENTS OF ROMANIAN CITIZENS

ABROAD (Ramona Duminică, Andreea Drăghici) / 71
ANALYSIS OF THE GENERAL PRINCIPLES OF PUBLIC ADMINISTRATION IN

THE LIGHT OF THE ADMINISTRATIVE CODE (Ioana Panagoreţ, Ivan Vasile
Ivanoff) / 78
ON THE THEORY OF EQUITY, RELY THE ELABORATION OF CODES IN THE

CENTURIES XVIII-XIX (Andreea Rîpeanu) / 91
THE MEANINGS OF THE CONCEPT OF RESPONSABILITY

(Maria-Irina Grigore-Rădulescu) / 102
CODING OF CUSTOM RULES IN DIPLOMATIC LAW (Corina Florenţa Popescu) / 109
SOME OBSERVATIONS ON CYBER SECURITY AS A COMPONENT OF THE

EUROPEAN UNION SECURITY POLICY (Gianina-Anemona Radu) / 116
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COLLECTIVE REDRESS AND REPRESENTATIVE ACTIONS IN THE COLLECTIVE

INTEREST OF CONSUMERS, IN THE LIGHT OF RECENT TRENDS IN EU LAW
(Juanita Goicovici) / 127
RESTRICTION ON THE EXERCISE OF THE FUNDAMENTAL RIGHT OF ACCESS

TO CULTURE – A REAL NECESSITY IN A PANDEMIC PERIOD? (Oana Şaramet) /
139
USE OF ADVANCED ELECTRONIC SIGNATURE OR QUALIFIED ELECTRONIC

SIGNATURE IN THE LIGHT OF REGULATIONS INTRODUCED BY
EMERGENCY ORDINANCE 36/2021 (Gheorghe Lucian, Vlad Barbu) / 148
INMIGRANT WORKERS DURING THE PANDEMIC (Nicoleta Enache) / 156
CIVIL OFFENCE LIABILITY OF PUBLIC AUTHORITIES IN THE PERIOD OF

EMERGENCY (Delia-Mihaela Marinescu, Dragoş-Lucian Rădulescu) / 162
THE RIGHT TO WORK OF INMIGRANTS WORKERS IN SPAIN (Gratiela-Florentina

Moraru) / 170
INFRINGEMENT OF THE RIGHT TO CONSULTATION BY THE OMISSION OF

GRANTING/NON GRANTING THIS RIGHT BY ORDINANCE (Denisa Barbu) / 180
THE ROLE OF PUBLIC INTERNATIONAL LAW IN CONTEMPORARY SOCIETY

(Ioana-Andra Pleşa) / 190
RETURNING TO WORK AFTER „WORKING FROM ANYWHERE” PERIOD,

DURING THE COVID-19 PANDEMIC (Florin Valeriu Gilia) / 195
LIMITATIONS AND DISCONTINUITIES OF OWNERSHIP IN POSITIVE

ROMANIAN LAW (Ionuţ Dojană) / 206
ENVIRONMENTAL POLICY - LEGAL FRAMEWORK AND GENERAL PRINCIPLES

(Beatrice Drăghiciu) / 222
REPAIR OF CONTRACTUAL DAMAGE RESULTING FROM LOSS OF

OPPORTUNITY (Raluca-Clarisa Gligor) / 229
EROSION OF CONSTITUTIONAL LOYALTY IN A STATE SUBJECT TO THE RULE

OF LAW DURING A PANDEMIC YEAR (Maria-Nicoleta Morar) / 238
INTERCURRENT ILLNESSES AS ASSUMPTION ASSIMILATED TO THE WORK

ACCIDENT: A JURISPRUDENTIAL REVIEW (Cătălina Smîntînică) / 247
10
BRIEF CONSIDERATIONS ON THE IMPORTANCE OF EVIDENCE IN CASE OF

TRAFFIC OFFENSES IN THE REPUBLIC OF MOLDOVA (Marian Russo, Nicolae
Scurtu) / 256
THE EVOLUTION OF THE PROCESS FOR IMPLEMENTING PUBLIC EDUCATION

STRATEGIES AND POLICIES. CURRENT CHALLENGES AND TRENDS (Gabriela
Şerbu) / 262
HISTORICAL PERSPETIVE OVER THE ORIGINS OF EUROPEAN UNION’S

COMPETITION POLICY (Andrei Alecu) / 270
PROMOTION TO PUBLIC FUNCTION, MECHANISM FOR DEVELOPING AND

IMPROVING THE PUBLIC SERVICE (Cristina-Georgeta Băjenaru) / 282
MEASURES TAKEN BY ROMANIA TO PROTECT THE ELDERLY DURING THE

COVID-19 PANDEMIC (Alexandra Dobre) / 289
THE ROLE OF MEDIATION IN THE INSTITUTION OF MARRIAGE (Iulian Hagiu) /

297
FREEDOM OF THE PERSON IN THE CONTEXT OF THE PANDEMIC - COVID 19

(Cristina Dobre) / 305
CHALLENGES IN THE ROMANIAN LAW CAUSED BY THE SARS-CoV-2

PANDEMIC (Andrada-Georgiana Marin) / 316
STATUS OF THE CURRENT EFFORTS TO FOSTER BUSINESS RESPECT FOR

HUMAN RIGHTS (Christian Töpfer) / 338
GENDER EQUALITY IN THE CONTEXT OF THE 2030 AGENDA AND COVID-19

PANDEMIC (Ruxandra-Andreea Ţuţuianu) / 348
SOCIAL INNOVATION - EDUCATIONAL POLICIES AND STRATEGIES.

CHALLENGES OF PUBLIC ADMINISTRATIONS IN THE CURRENT CONTEXT
(Gabriela Şerbu) / 360
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TOWARDS A BETTER AND MORE EFFECTIVE

PROTECTION OF VULNERABLE PEOPLE NOWADAYS
Irina MOROIANU ZLĂTESCU*
Claudia Elena MARINICĂ**
Abstract: Given that there are so many adults who may be in a situation of vulnerability,
in this research we tried presenting, in a relatively generalized setting, this sensitive topic - the
protection of vulnerable people. We emphasized the legislative framework, but also the need to
adopt measures to promote and protect their rights, as a component of international human
rights law. This research is closely linked to the objectives of the current Presidency of the
Council of the European Union held by Portugal from January the 1st to June 30, 2021, but also
to the objectives of international and regional organizations. To achieve the proposed objective,
the article revised, in principle, both the legislation in force and the literature that involves the
protection and promotion of this category of people, starting from the theoretical foundations of
human rights, which are based, among other things, on this particular set of human rights. Of
course, respect for and exercise of the rights of these people, access to justice, better visibility of
this category, including the reaction at international, European and national level of decision-
makers emphasizes the need for active involvement and cooperation in decision-making in
public policy. Being aware that vulnerable people must enjoy the exercise of their fundamental
rights not excluding good governance, we believe that in the current context of the pandemic
caused by COVID-19 authorities must pay special attention and ensure a higher degree of
protection since the ability of these people to exercise their rights and complain about their
infringement is often diminished.
Keywords: European Union, human rights, equal rights, good governance, decision-
makers.
1. General considerations
Starting from the basic idea that addressing this issue - the protection of vulnerable
people - is essentially the protection of their rights and ensuring a legislative
framework related to the development of society, with prospects for better regulation
and implementation, in this article we want to determine everyone to pay attention to
the need to protect these people, to ensure equal opportunities while maintaining their
dignity since they are entitled to benefit by virtue of the fundamental features of laws
protecting people, namely that they are universal, indivisible and interdependent1.
* Professor, PhD, Irina Zlătescu, Titular Member of the International Academy of Comparative Law of
the Hague, Titular Member of the Academy of Juridical Sciences of Romania, Member of The Council
of European Law Institute (ELI), Faculty of Public Administration, SNSPA, Bucharest, Romania.
** Assistant Professor, PhD, Claudia Elena Marinică, Faculty of Public Administration, SNSPA,
Bucharest, Romania.
1
For more details see Vasak, K., Les dimensions internationales des droits de l'homme, UNESCO,
Paris, 1978.
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At the same time, respect for the value of human dignity, the principle of equal
opportunities and non-discrimination is an objective and a challenge for any democratic
state, a relatively difficult and time-consuming process in any place, and the observance
and the enforcing of the rights of vulnerable persons must pursue integration, acceptance,
respect for differences and equal opportunities for vulnerable people.
Given another premise, that in the case of these people, it is found that human
rights are violated relatively frequently, at international, regional and national levels, a
number of measures have been taken over time to protect vulnerable people. We
believe that it is very important to address the protection and promotion of the rights of
vulnerable people not only by international governmental organizations (the United
Nations and their specialized agencies2, the Organization for Security and Cooperation
in Europe - OSCE, the Council of Europe and its bodies, the European Union, etc.) but
also by non-governmental organizations. Given the diversity and plurality of
international organizations, we will focus in particular on the European Union, as its
impact on Romania and its citizens is more visible, having a greater capacity to
influence public policies and is therefore an element that must be taken into account
when it comes to respecting, protecting and promoting the rights of vulnerable people,
but also when it comes to understanding the educational, social and health policies
adopted and applied by the EU. Thus, the United Nations, the Council of Europe, the
European Union, and their Member States have sought to ensure that the legislation
adopted supports those who are sometimes unable to claim, exercise or benefit from
their rights, adding a degree of protection.
In this context and the one caused by the COVID pandemic, considering that the
protection of vulnerable persons is a priority for the European Union, it chaired the
High Level Conference on "Protection of Vulnerable People in Europe" that took place
on the 30th of March 2021, under the auspices of the Portuguese Presidency of the
Council of the European Union, in partnership with the Agency for Fundamental
Rights and the European Commission, a conference that highlights this current topic.
Finally, at the national level, we believe that one of the key issues pursued by each
state is to ensure an increased quality in the standard of living for all its citizens,
including those in a vulnerable position, achieving this by regulating, respecting and
promoting the rights of all its citizens, by adopting and / or continuing to implement
public policies and national strategies aimed at reducing inequalities as well as taking
social inclusion measures where necessary.
2. Concepts associated with vulnerable people
Although according to art. 2 of the Universal Declaration of Human Rights, “all

human beings are born free and equal in dignity and rights”, to which we can add the
equality conferred by the legislative regulations elaborated and adopted at
international, regional and national level, we appreciate that, however, everyday life
2
Ex. UNICEF sau UNESCO.
14
shows that there are still concrete situations of human rights violations, including those
of vulnerable people.
Moreover, the Universal Declaration of Human Rights states in Article 7, in a
starting sentence, the principle of equality of all before the law and the right to equal
protection, without distinction, under the law, stating that "all people have the right to
equal protection against any discrimination ”that would violate the Declaration and
against any provocation to such discrimination”3.
Equality in rights must also be seen as “the right of citizens, regardless of
nationality, race, sex or religion, to exercise equally all the rights provided for in the
Constitution and laws, to participate equally to political, economic, social and cultural
life, without any discrimination, to be treated on an equal footing both by state bodies
and by other citizens”4. Although it can be appreciated as an interpretation at the
national level, we appreciate that it can be attributed equally to any democratic state,
based on respect for and protection of human rights.
With regard to discrimination, although there is currently no generally accepted
definition of discrimination in international law5, we would like to recall the Covenant
on Civil and Political Rights6, which provides that all persons are equal before the law
and are entitled without any discrimination to equal protection of the law in Article 26,
thus ensuring the preconditions for equal access to justice, without discrimination;
however, it must also be borne in mind the aspect that not every difference in treatment
constitutes discrimination7, non-discrimination being considered to be "any difference,
exclusion, restriction or preference, based in particular on race, colour, sex, language,
religion, political or other opinion, national or social origin, wealth, ancestry or any
other situation, which has the effect or purpose of compromising or destroying the
recognition of the benefit or the exercise by all, on equal terms, of all human rights and
fundamental freedoms”8. The UN Charter9 and the Universal Declaration of Human
Rights10 mention equality in rights, and hence the obligation not to discriminate. At the
same time, the UN Convention on the Rights of Persons with Disabilities (Article 6)
expressly refers to a new concept, that of multiple discrimination. The adoption and
implementation of measures in this area of interest may be prerequisites for ensuring
3
For more details see Moroianu Zlătescu, I., Drepturile omului – un sistem în evoluţie, Ed. IRDO, 2007,
p.68.
4
Muraru I., Tănăsescu, E.S., Drept Constituţional şi instituţii politice, Editura C.H. Beck, 2016,
Bucureşti, p.12.
5
Moroianu Zlătescu, I., Fighting multiple discrimination in the exercise of the right to non-discrimination
and equality of opportunities in the contemporary Society, Ed. Pro Universitaria, Bucureşti, 2014, p. 3
şi urm. Also see Morianu Zlătescu I., Human Rights a dynamic and evolving process, Ed.
Prouniversitaria, Bucureşti, 2015, pp. 297-320.
6
Adopted and opened for signature by the United Nations General Assembly on 16 December 1966 by
Resolution 2200 A (XXI) and which entered into force on 3 January 1976.
7
Whether the criteria for such differentiation are reasonable and objective and whether the aim is to
achieve an objective that is legitimate under the Covenant on Civil and Political Rights, this is clarified
by the UN Human Rights Committee.
8
Diaconu, I., Drepturile omului în dreptul internaţional contemporan, Editura Lumina Lex, Bucureşti,
2010, p.59.
9
Article 1, paragraph 3 and Article 55.
10
Article 2, paragraph 1.
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equal treatment, because equality in itself does not mean uniformity, and mere
intention does not necessarily mean discrimination11.
Another aspect that needs to be mentioned is that disability ("people with
disabilities") is one of the main features that attract a person's vulnerability, which can
obviously expose him / her not only to falling into such a category ("vulnerable"), but
also to discrimination and poverty, in the absence of appropriate inclusive social
policies. United Nations Convention on the Rights of Persons with Disabilities12 states
the principles of respect for inalienable dignity, individual autonomy, non-
discrimination, respect for diversity and acceptance of persons with disabilities as part
of mankind and human diversity, equal opportunities, accessibility, etc. It guarantees
the rights of persons with disabilities and the possibility to avail of them on an equal
footing with others. People with disabilities face a higher risk of poverty, social
exclusion and discrimination, despite the European Union's efforts to minimize any
possible gap between the employment rate of people with disabilities and those
without. This is achieved through the adoption and implementation of active
employment measures at Member State level.
Whereas the provisions of international human rights law also serve as legal
benchmarks in the analysis and assessment of concrete situations, being grouped
thematically including in the area of protection of vulnerable groups, in particular
women, children, persons with disabilities, refugees, the elderly, members of minorities
and persons deprived of their liberty, in the following we will try to briefly address
some of these categories of persons, in the light of the actions taken at the level of the
European Union, in particular.
3. Legislative regulations on the protection of vulnerable persons at EU level
In ensuring and promoting the rights of vulnerable people, it is essential that the
policies of the European Union be based on its fundamental principles: promoting
peace, well-being, European values, combating social exclusion and discrimination,
ensuring freedom, security and fair justice. At EU level, the policies adopted are
constantly aimed at promoting equal opportunities, usually exceeding the limits of
equal treatment, aiming at eliminating inequalities affecting disadvantaged
people/groups, including vulnerable people (e.g. people with disabilities, children, the
elderly, etc.). Therefore, the inclusion of vulnerable people is one of the objectives of
the European process of social protection regarding social inclusion.
11
See Moroianu Zlătescu, I., Egalitate de şanse. Egalitate de tratament, Editura IRDO, Bucureşti, 2000,
p.7.
12
Romania ratified the Convention by Law no. 221 of 11 November 2010 for the ratification of the
Convention on the Rights of Persons with Disabilities, adopted in New York by the United Nations
General Assembly on 13 December 2006, opened for signature on 30 March 2007 and signed by
Romania on 26 September 2007.
16
In fact, according to Eurostat13, in 2019, 92.4 million people in the European

Union were at risk of poverty or social exclusion, equivalent to 21.1% of the
population of the European Union, the risk of poverty or social exclusion being higher
for women than for men (22.0% compared to 20.2%) in 2019.
source: https://ec.europa.eu/eurostat/statistics-explained/index.php?
title=Living_conditions_in_Europe_-_poverty_and_social_exclusion, accessed at 15.06.2021.
In the area of anti-discrimination policies, the European Union aims to overcome

discrimination and increase the inclusion of vulnerable people through their widest
possible access to services and opportunities, which are otherwise normal, by adopting
and enforcing anti-discrimination legislation and, at the same time, adopting specific
personalized approaches according to the needs of each group of vulnerable people.
In the category of vulnerable people encountered in almost every state we find
people with disabilities, ethnic minorities, the elderly, children and immigrants who
face difficulties in the area of social inclusion14, but in order to support them the
European Union seeks to stimulate their participation in education, social life and the
work market, but also encouraging their participation in cultural and political life, for a
fuller integration.
As the President of the European Commission15 himself stated, “people with
disabilities have the right to have good working conditions, to live independently, to
have equal opportunities, to participate fully in the life of their community. Everyone
has the right to a life without barriers. And it is our obligation, as a community, to
ensure their full participation in society, on an equal basis with others”. That is why, at
the level of the European Union, one of the most recent measures adopted is the
adoption in March 2021 of the Strategy on the Rights of Persons with Disabilities
13
Living conditions in Europe - poverty and social exclusion disponibil la
https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Living_conditions_in_Europe_-
_poverty_and_social_exclusion, accessd at 15.06.2021.
14
Eg. employment rate, income received, dropout rate, etc.
15
Ursula von der Leyen.
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(2021-2030), based on the previous one16, thus contributing to the implementation of

the European Pillar of Social Rights. It is clear that the strategy supports the
implementation of the United Nations Convention on the Rights of Persons with
Disabilities at EU and national level, with the aim of: “including the rights of all
persons with disabilities in all policies and areas; equal access for people with
disabilities to healthcare, jobs, public transport and housing; the implementation and
further development of the pilot project European Disability Card, which allows for the
mutual recognition of disabilities in some EU countries; measures to recover and
mitigate the effects of health crises, such as the Covid-19 crisis, which
disproportionately affects people with disabilities”17, as well as the inclusion in the
strategy of people with disabilities themselves, their families and the organizations that
defend their rights.
The strategy ensures the strengthening of equal participation and non-
discrimination, focusing on three main themes (1. existing rights in the European
Union18; 2. independent living and autonomy19 and 3. non-discrimination and equal
opportunities, as well as access to justice, education, culture etc.). In fact, the Strategy
contributes to the construction of the Equality Union, together with the 2020-2025
Strategy for LGBTIQ equality, the EU Action Plan to Combat Racism for 2020-2025,
the European Strategy 2020-2025 on Gender Equality and the EU Strategic Framework
on Roma people20.
All this in the context in which at the level of the European Union there are
approximately 87 million people with disabilities, and the employment rate among
people with disabilities (aged between 20 and 64 years) is 50.8 %, compared to 75%
for people without disabilities, especially since 28.4% of people with disabilities in the
European Union are at risk of poverty or social exclusion, compared to 17.8% among
the general population21. In fact, the World Health Organization (at the level of 2015),
pointed out that there are over 1 billion people with disabilities worldwide,
representing the largest minority in the world (15% of the entire population). Of
course, in the presence of such a percentage, we would be tempted to appreciate that
beyond the legislative regulations adopted there is a real commitment and respect for
the rights of these vulnerable people, but the reality is somewhat different, there are
still situations of discrimination and poor implementation of specific public policies.
We appreciate that, at present, disability is no longer a problem attributed exclusively
to people with disabilities, but to society as a whole, which can be interpreted as having
16
European Strategy 2010-2020 for people with disabilities.
17
An ambitious new strategy for people with disabilities for 2021-2030, available at
https://www.europarl.europa.eu/news/ro/headlines/society/20200604STO80506/o-noua-strategie-
pentru-persoanele-cu-dizabilitati-pentru-2021-2030, accessed on 15.06.2021.
18
Equal rights as any other citizen of the European Union. The proposal for a European Disability Card
valid throughout the European Union will be taken into account, which will facilitate the mutual
recognition of this status within the European Union.
19
By improving social services for this category of people.
20
European Commission, An Equality Union: European Commission presents Strategy on the Rights of
Persons with Disabilities (2021-2030), press release of 3 March 2021, Brussels, available at
https://ec.europa.eu/commission/presscorner/detail/ro/IP_21_810?fbclid=IwAR2k1wrtUesPQ25M3L_E
ElWotjzda0Wm8ly9la1Sm9CQe7nr_1f0YWNog7I, accessed on 15.06.2021.
21
Ibidem.
18
a "disability" if it does not ensure respect for the rights of these people. Obviously, if
society eliminates barriers (physical, legal, communication, attitude), disability is
reduced, because the person has more opportunities to participate.
Children are another vulnerable group, the rights of the child being human rights,
and their protection is ensured globally22, by the United Nations23 ((United Nations
Convention on the Rights of the Child, New York, 1989, which entered into force in
199024), and involves each state, special attention being paid by the European Union,
which according to the provisions of Article 3 of the Treaty on European Union
”affirms and promotes its values and interests and contributes to the protection of its
citizens. It contributes to peace, security, the sustainable development of the planet,
solidarity and mutual respect between peoples, free and fair trade, the eradication of
poverty and the protection of human rights and, in particular, the rights of the child”.
The vulnerability of the child is generated not only by physical and intellectual
immaturity, which requires special support in order that the child avails of the rights
granted by law, but also by the unequivocal nature of children's rights, any abuse being
excluded, this approach illustrating that by childhood is not understood just a simple
period of transition to mature life, childhood having an independent value, as a certain
era in human life, in which he must enjoy the rights and obligations specific to this age25.
As the European Union (through the European Commission) argues, "children in the
EU and abroad continue to be victims of socio-economic exclusion and discrimination on
the grounds of origin, status, gender or sexual orientation - their own or their parents'.
Children's voices are not always heard, and their opinions are not always taken into
account when making decisions about issues that are relevant to them”26.
And with regard to children, seen as vulnerable people, the reality is that there are
still situations in which children's rights continue to be violated or ignored, with
children being victims of violence, abuse, discrimination, poverty and social exclusion.
Thus, there are vulnerable groups of children, including children with disabilities,
children from socio-economically disadvantaged backgrounds, children who belong to
ethnic and minority groups, etc. It is well known that "the rights of the child are an
integral part of human rights, which the European Union has an obligation to respect
under the United Nations Convention on the Rights of the Child and its Optional
Protocols, the Millennium Development Goals and the Convention European Court of
Human Rights (ECHR). Moreover, the European Union has explicitly recognized the
22
Since 1924, the special protection of children has been recognized internationally through the Geneva
Declaration on the Rights of the Child, but only through the support of the United Nations has it been
globally enforced.
23
The largest international organization in terms of number of states.
24
Ratified by a number of 194 Member States of the United Nations. The Convention recognizes the
vulnerability of the child, guaranteeing non-discrimination and establishing the best interests of the
child as a basis for national, regional and universal legislative measures.
25
Moroianu Zlătescu, I., Drepturile omului – un sistem în evoluţie, Ed. IRDO, 2007, p.147.
26
European Commission - Press release, Commission proposes a package of measures to ensure
compliance rights of the child and the support of children in difficulty, Brussels, 24 March 2021,
available at https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A52021DC0142 accessed
on 15.06.2021.
19
Conference Paper
rights of the child in the Charter of Fundamental Rights”27, which has become an
integral part of the Lisbon Treaty.
At EU level, the European Commission recently adopted, in March 2021, the first
comprehensive EU Strategy on the Rights of the Child, as well as a proposal for a
Council Recommendation establishing a European Child Guarantee to promote equal
opportunities for children at risk of poverty or social exclusion. The European Union's
strategy on the rights of the child aims to promote and ensure the protection of
children, including vulnerable children, as well as issues concerning children's rights in
the digital age, preventing and combating violence and promoting justice in the interest
of the child. These guidelines are current and very important, involving Member States'
authorities in assessing the effects of national and regional legislation on children, but
also in promoting children's rights in public policy.
The strategy aims to ensure the right of children to live a life free from violence,
by adopting legislation and proposing recommendations to combat gender-based
violence and domestic violence and preventing harmful practices against women and
girls, by creating integrated protection systems, improving their functioning and
ensuring the effectiveness of national measures to combat violence in schools. At the
same time, the aim is to ensure the right of children ”to a justice that is in their interest,
regardless of whether they are victims, witnesses, suspects, accused of committing a
crime or parties in a court proceeding”28, but also the right of children to navigate
securely in the digital environment and take advantage of the opportunities it offers.
At national level, in Romania, the current public policies also include the policy
on protection and promotion of children's rights developed in the National Strategy for
the Protection and Promotion of Children's Rights 2014-202029, together with the
Operational Implementation Plan for 2014-2016. This strategy starts from a complex
analysis of the problems faced by children in Romania, highlighting four general
objectives, accompanied by sets of specific objectives, measures and expected results.
These objectives aim, inter alia: (i) "to improve children's access to quality services, by
increasing their coverage and quality, to develop the capacity of children and families
to access the services that are available for them, and by better evaluating and
monitoring the rights and situation of children”; (ii) "respect for the rights and
promotion of the social inclusion of children facing vulnerable situations, with specific
objectives including ensuring a minimum of resources for children (as part of a
national child-centred anti-poverty program), reducing gaps between rural and urban
children and the gaps between Roma and non-Roma children, the elimination of
barriers to the rehabilitation and reintegration of children with disabilities, but also the
provision of adequate support to children with parents working abroad”; (iii)
27
See Towards a Child Rights Strategy, available at https://eur-lex.europa.eu/legal-
content/RO/TXT/HTML/?uri=LEGISSUM:r12555&from=LV, accessed on 15.06.2021.
28
European Commission - Press release, Commission proposes a package of measures to ensure
compliance the rights of the child and the support of children in difficulty, ibidem.
29
Government Decision no. 1113/2014 on the approval of the National Strategy for the protection and
promotion of children's rights for the period 2014-2020 and of the Operational Plan for the
implementation of the National Strategy for the protection and promotion of children's rights 2014-
2016, published in the Official Gazette of Romania no. 33 of January 15, 2015.
20
"preventing and combating violence against children" and (iv) "encouraging children's
participation in decision-making”.
The elderly represent another category of vulnerable people who are exposed to a
risk of social exclusion, the adoption and implementation of legislative measures with
the role of protection and promotion of their rights being a current and permanent need.
At the international level there are several international treaties and instruments for
human rights relating to ageing or the elderly, by virtue of the right to health (art. 2530
of the Universal Declaration of Human Rights), the right to work, and the consideration
of necessary public policies.
At the level of the European Union, demographic changes and the increase in life
expectancy have led to an increase in the number of older people; there are situations
when they do not protect their interests very well, the main cause being ageing-
associating diseases. However, there are other circumstances, such as mental and
physical disabilities to which, if we add the differences between the laws of the
Member States on the protection of the elderly, we can appreciate that the measures
that the European Union must take into account are "measures to ensure movement,
recognition and the enforcement by the authorities of the Member States of protection
measures taken in favor of a vulnerable adult by the authorities of another Member
State, the dissemination and recognition of incapacity warrants and the intensification
of cooperation between Member States in this regard”31. Of course, ”it would be
appropriate to implement cooperation mechanisms between Member States in order to
promote and facilitate communication between competent authorities, as well as the
transmission and exchange of information on vulnerable adults", and "certain
protection measures envisaged” by the authorities of a Member State concerning a
vulnerable adult, in particular the placement of an adult in an establishment located in
another Member State, could have logistical and financial implications for another
Member State”32.
Immigrants are another category of vulnerable people, we could even say
"foreigners", the approach to immigration and the integration of immigrants is a
criterion for analysing socio-economic inequalities and pursuing the adoption of public
policies in this regard, to protect and defend their rights. As good governance is based
on the application of common values, a number of standards have been set at EU level
for state authorities to pursue for the protection of these vulnerable people (e.g.
legality, inclusion, impartiality, individual ethics and honesty, integrity, efficiency,
responsibility, connectivity, etc.). Every human being, hence the immigrant, is subject
to inalienable rights and freedoms, and a democratic society requires respect for the
universality of human rights and not the division of rights according to the status of
30
Everyone has the right to a standard of living adequate for the health and well-being of his family,
including adequate food, clothing, housing, medical care and social services. The right to health is an
integral part of the social protection guaranteed to all persons, in order to ensure the well-being and
quality of life, respectively.
31
Motion for a European Parliament resolution containing recommendations to the European
Commission on the protection of vulnerable adults available at
https://www.europarl.europa.eu/doceo/document/A-8-2017-0152_RO.html, accessed on 15.06.2021.
32
Ibidem.
21
Conference Paper
immigrant or resident33. In addition to the distant origins similar to the phenomenon of

migration, the legislation on the regulation of migration/immigration and implicitly of
immigrants, so rich and diversified, developed precisely to ensure the protection and
promotion of the rights of these vulnerable people; we should mention the Refugee
Pact34 (adopted at the UN level), a pact that is a topical element in international
migration policy, seconded by the proposal for the New Pact on Migration and Asylum
at EU level35, which establishes improved and faster procedures in the the balance
between the principles of fair sharing of responsibility and solidarity, which is
extremely important for restoring confidence between Member States and in the
European Union's ability to manage migration36. The system proposed by the New Pact
”will also include joint governance for migration, with better strategic planning to
ensure the alignment of EU and national policies, as well as increased monitoring of
migration management on the ground, in order to strengthen mutual trust”37.
At the same time, at national level, the policy on immigration and integration of
foreigners aims to maintain social cohesion in a society under constant change, and the
category of foreigners legally residing in Romania, which benefits from a form of
protection, is the most vulnerable category because of the forced exile they were
subjected to. Thus, they benefit from increased attention from the authorities, as it
requires the involvement of all institutional actors with responsibilities in the field, so
that the measures taken contribute to promoting intercultural dialogue, creating a
positive image among the public on the phenomenon of immigration and integration of
citizens in third countries, as well as their acceptance by society. It is necessary to
implement effective mechanisms for early identification of vulnerable persons, as well
as to develop regulations on the role of state institutions with responsibilities in
identifying and assisting vulnerable persons.
Recently, at European Union level, following the priorities defined for the
Portuguese Presidency of the Council of the European Union, with the support of the
European Commission and the European Union Agency for Fundamental Rights held on
March the 30th, 2021 a High Level Conference on the topic The Protection of Vulnerable
Adults across Europe - the way forward. This conference ”underlines that people with
disabilities or insufficiencies in their personal capacities and victims of hate crimes or
gender-based violence are among those adults who may face particular challenges in
exercising their rights, defending their interests and accessing justice in civil and criminal
proceedings. This Conference offers an opportunity to reflect on the current situation and
look ahead to what steps are necessary to ensure that all European citizens can enjoy their
fundamental rights, including, in practice, equal access to justice”38.
33
Moroianu Zlătescu, I., Bucur-Ioan A., Zlătescu P.E., Migrants, Asylum seekers and refugees in a
globalised world, Ed. Universitară şi Universul Academic, Bucharest, 2019, p. 98.
34
The Covenant is not legally binding with respect for human rights at its core.
35
Expected to enter into force in 2022.
36
European Commission, A new beginning for migration: building confidence and finding a new balance
between responsibility and solidarity, press release, 23 September 2020, Brussels available at
https://ec.europa.eu/commission/presscorner/detail/ro/ip_20_1706, accesat la data de 15.06.2021.
37
Ibidem.
38
See https://www.2021portugal.eu/en/events/high-level-conference-protecting-vulnerable-adults-
across-europe-the-way-forward/.
22
Conclusions
At the end of this article, we believe that it is essential for the European Union
to guarantee respect for fundamental rights, without discrimination or exclusion,
and the protection of vulnerable people is closely linked to respect for human
rights, as any vulnerable adult should be considered another European citizen, as
having rights and being able to make free, independent and informed decisions,
within the limits of his / her capacity, and not simply a passive beneficiary of care
and supervision39.
Whereas "even before the pandemic, 22% of children in the European Union were
at risk of poverty or social exclusion", and "this reality should be inconceivable in
Europe, especially since in the last year, these already existing inequalities have been
emphasized”40, it is necessary to ensure the same rights for all children, regardless of
the environment they come from, without being victims of discriminatory treatment.
However, when we talk about children, we must not only refer to them as vulnerable
people who need special protection, but also as people who have rights, who need to be
informed and who can make decisions, being involved actively in the society and
community to which they belong.
We cannot but reflect on the topic that our future is represented by children,
and that is why it is more than necessary for each of us, and especially states and
international organizations, to ensure that all children have real and equal
opportunities to succeed in life. We make this statement because a global vision of
children's rights and needs, awareness of their vulnerabilities and their elimination
accordingly, their integration into public policies and paying special attention to
the specific needs of vulnerable children, will make children experience more and
more the sense of belonging and being included in society and in the communities
where they live.
We believe that the protection of people with disabilities, the elderly and
immigrants requires a comprehensive set of specific protection measures provided for
by both European Union law and the law of its Member States; the legal protection of
vulnerable people must be strengthened and their rights should be promoted.
In the same time, we believe that, exacerbated by the COVID-19 pandemic, the
situation of vulnerable people in Europe needs to be recalibrated, in the context of the
need to ensure equal access to health and education services, which is why promoting
public policies on health and education for vulnerable groups must be an immediate
goal - to ensure a climate of health, well-being and proper education, free from racism
and xenophobia, and to protect them, by allocating special funds, at European and
national level.
39
Motion for a European Parliament resolution containing recommendations to the European
Commission on the protection of vulnerable adults available at
https://www.europarl.europa.eu/doceo/document/A-8-2017-0152_RO.html, accessed on 15.06.2021.
40
The statements belong to the Commissioner for Employment and Social Rights, Nicolas Schmit.
23
Conference Paper
Removing barriers to access to health, education and training, social services for
all vulnerable people, regardless of the degree, is a key issue on which the European
Union continues to lean towards the development of new common goals and indicators,
taking into account the overall picture of society, as well as real data and statistics for a
more efficient implementation with a direct impact on vulnerable people as well.
Bibliography:
1. Diaconu, I., Drepturile omului în dreptul internaţional contemporan, Lumina Lex
Publishing House, Bucharest, 2010.
2. Moroianu Zlătescu I., Marinică C.E., Instituţiile Uniunii Europene, Universitară
Publishing House and Universul Academic Publishing House, Bucharest, 2020.
3. Moroianu Zlătescu, I., Bucur-Ioan A., Zlătescu P.E., Migrants, Asylum seekers and
refugees in a globalised world, Universitară Publishing House and Universul Academic
4. Morianu Zlătescu I., Human Rights a dynamic and evolving process, ProUniversitaria
5. Moroianu Zlătescu, I., Fighting multiple discrimination in the exercise of the right to
non-discrimination and equality of opportunities in the contemporary Society, Pro
Universitaria Publishing House, Bucharest, 2014.
6. Moroianu Zlătescu, I., Drepturile omului – un sistem în evoluţie, IRDO Publishing
House, 2007.
7. Moroianu Zlătescu, I., Egalitate de şanse. Egalitate de tratament, IRDO Publishing
House, Bucharest, 2000.
8. Muraru I., Tănăsescu, E.S., Drept Constituţional şi instituţii politice, C.H. Beck
9. Vasak, K., Les dimensions internationales des droits de l'homme, UNESCO, Paris,
1978.
10. Living conditions in Europe - poverty and social exclusion disponibil la
https://ec.europa.eu/eurostat/statistics-explained/index.php? title=Living_conditions_
in_Europe_-_poverty_and_social_exclusion, accessd at 15.06.2021.
11. An ambitious new strategy for people with disabilities for 2021-2030, available at
https://www.europarl.europa.eu/news/ro/headlines/society/20200604STO80506/o-
noua-strategie-pentru-persoanele-cu-dizabilitati-pentru-2021-2030, accessed on
15.06.2021.
12. European Commission, An Equality Union: European Commission presents Strategy
on the Rights of Persons with Disabilities (2021-2030), press release of 3 March 2021,
Brussels, available at https://ec.europa.eu/commission/ presscorner/ detail/ ro/
IP_21_810?fbclid=IwAR2k1wrtUesPQ25M3L_EElWotjzda0Wm8ly9la1Sm9CQe7nr_
1f0YWNog7I, accessed on 15.06.2021.
13. European Commission - Press release, Commission proposes a package of measures to
ensure compliance rights of the child and the support of children in difficulty, Brussels,
24 March 2021, available at https://eur-lex.europa.eu/legal-content/ en/ TXT/
?uri=CELEX%3A52021DC0142 accessed on 15.06.2021.
14. Towards a Child Rights Strategy, available at https://eur-lex.europa.eu/legal-
content/RO/TXT/HTML/?uri=LEGISSUM:r12555&from=LV, accessed on
15.06.2021.
24
15. European Commission - Press release, Commission proposes a package of measures to

ensure compliance the rights of the child and the support of children in difficulty,
ibidem.
16. Government Decision no. 1113/2014 on the approval of the National Strategy for the
protection and promotion of children's rights for the period 2014-2020 and of the
Operational Plan for the implementation of the National Strategy for the protection and
promotion of children's rights 2014-2016, published in the Official Gazette of Romania
no. 33 of January 15, 2015.
17. Motion for a European Parliament resolution containing recommendations to the
European Commission on the protection of vulnerable adults available at
https://www.europarl.europa.eu/doceo/document/A-8-2017-0152_RO.html, accessed
on 15.06.2021.
18. European Commission, A new beginning for migration: building confidence and
finding a new balance between responsibility and solidarity, press release, 23
September 2020, Brussels available at https://ec.europa.eu/commission/presscorner/
detail/ro/ip_20_1706, accesat la data de 15.06.2021.
25
Conference Paper
OBLIGATION OF THE EMPLOYER TO INFORM THE

PERSON SELECTED FOR THE EMPLOYMENT OR,
WHERE APPROPRIATE, THE EMPLOYEE, WITH
REGARD TO THE ESSENTIAL CLAUSES WHICH HE
INTENDS TO REGISTER IN THE CONTRACT OR TO
REGULATE THEM EMERGENCY ORDINANCE 37/2021
Vlad BARBU*
Gheorghe LUCIAN**
Abstract: Taking into account the provisions of European legislation and in particular
Council Directive 91/533 / EEC of 14 October 1991, Law No 53/2003 - Labor Code -
establishes the obligation of the employer to inform the selected person for employment or, as
the case may be, the employee with regard to the essential clauses which he intends to enter into
the contract or to amend. It can be seen, compared to Directive 91/533 / EEC, a simplification
brought by the Romanian legislator regarding the way of concretizing the information. This
simplification is justified by the obligation of the written form of the individual employment
contract imposed by art. 16 para. (1) and (2) but also by the rule according to which its
modification is possible only by the agreement of the parties.
Keywords: information obligation, mobile employees, employees working from home,
employees of micro-enterprises
Introduction
The Treaty establishing the European Economic Community, and in particular

Article 117 thereof, provides for the agreement of the Member States on the need to
promote the improvement of the working conditions and living standards of workers,
so as to make it possible for them to harmonize their progress. The European Union
operates with a number of key concepts found in national law such as "employer",
"worker", "employee" (employee), "employment contract".
On the other hand, the relevant legislation of the Member States differs
considerably in terms of fundamental issues, such as the obligation to inform workers
in writing of the essential elements of the contract or employment relationship.
Following the introduction of the obligation to inform in the national law of each
Member State but also the provision to each employee of a document containing
information on the essential elements of the contract or his employment relationship,
Directive 91/533 / was adopted at European level. EEC of 14 October 19911.
* Phd. Prof., "Alexandru Ioan Cuza" Police Academy, Bucharest, Romania.

** Phd. Lecturer, "Ovidius" University of Constanţa, Romania.
1
on the obligation of the employer to inform workers of the conditions applicable to the contract or
employment relationship (91/533 / EEC). FIRST PUBLICATION: Official Journal no. L 288/1991, pp.
32 - 35
26
1. Section
Point 9 of the Community Charter of the Fundamental Social Rights of Workers,

adopted at the Strasbourg European Council on 9 December 1989 by the Heads of
State and Government of 11 Member States, states that working conditions for every
employed worker in the European Community they must be provided for in a law,
collective agreement or employment contract, in accordance with the specific regime of
each country.
Therefore, the information and consultation modalities are implemented according
to the law and collective labor agreements.
It should be noted that the directive we are discussing has as subjects, together
with employers, workers - staff who perform a job in an employment relationship and
not only employees - people who perform the activity in an employment relationship
generated by the conclusion an individual employment contract.
Illustrative in this sense is also the title of the directive which speaks of "the
conditions applicable to the contract or employment relationship".
Therefore, according to Directive 91/533, the concept of worker is much broader
than that of employee. Moreover, in its preamble, the need to draw up such a
Community instrument in that regard is also justified by the fact that 'the development
of new forms of employment in the Member States has led to an increase in the types
of employment relationships.
Although the experience of the Member States in this matter is different, some states
have nevertheless considered it necessary to adopt regulations that subject labor relations
to “formal requirements” that ensure the protection of employees against possible
ignorance of their rights and provide more great transparency in the labor market.
However, these requirements do not alter the rule, unanimously accepted, that the
written form of the employment contract is required ad probationem and not ad
validitatem 2.
The objectives of this Directive could be summarized as follows:
- the need to establish, at Community level, a general obligation that every
employee must have a document containing information on the essential elements of
his contract or employment relationship; obviously, for reasons of regulatory
flexibility, Member States may exclude from the scope of the Directive certain limited
cases of employment relationships (Article 1 (2));
- the obligation to inform does not have to be fulfilled by the employer; it may be
covered by a written contract, a letter of employment, one or more other documents or,
failing that, written declarations by the employer;
- the obligation to inform also refers to employees who, within the internal market
of the Union, are seconded, in consideration of the service, from one state to another
(art. 4 - “expatriate worker”);
- the obligation on the State to guarantee employees the opportunity to exercise
their rights under the Directive.
2
Vlad Barbu, Gheorghe Lucian - Labor Law, university course, Sitech Publishing House, Craiova, 2019.
27
Conference Paper
As a directive, Member States must adopt those legislative measures in order to

comply with it. A key contribution to the implementation of the spirit of the directive
can be made by the social partners - employers and trade unions - which can, through
collective bargaining - resume and develop the legal framework established by this
important instrument of social policy of the European Union.
Any development of the text of the Directive is, as is well known, permitted only
on condition that it contributes to the achievement of the objective pursued by the
European Union through this Community instrument. In Romania, the general internal
framework for establishing the minimum requirements for the right to information and
consultation of employees is regulated by Law no. 467/2006 on establishing the
general framework for informing and consulting employees.3
The provisions of this normative act apply to companies based in Romania that
have at least 20 employees and the number of employees taken into account at the
enterprise level is the one existing at the date of starting the information procedures..
Through the enterprise 4 it is understood any form of organization of an economic
activity, authorized according to the laws in force to carry out activities of production,
trade or provision of services, in order to obtain income, in conditions of competition,
respectively: companies regulated by the Companies Law no. 31/1990, republished,
with subsequent amendments and completions5, cooperative societies, authorized
natural persons, owners of an individual enterprise and family enterprises, authorized
according to the legal provisions in force, which carry out economic activities. These
provisions are also applicable to associations and foundations, agricultural cooperatives
and agricultural companies engaged in economic activities.
Law no. 53/2003 - Labor Code, republished, with subsequent amendments and
completions, as a fundamental act that regulates labor relations in Romania, must
permanently reflect the economic reality in which these relations are manifested and, at
the same time must respond labor market needs in the context of the current economic
crisis.
Regarding the obligation to inform6, it also exists in the Labor Code, and concerns
the essential clauses that the employer intends to enter into the contract or to modify
for the person selected for employment or the employee, as the case may be.
The information is not prior to the negotiation of the contract, it is not related to
the offer as a unilateral act of the employer, but it is subsequent to the agreement of the
parties and it is fulfilled at the time of signing either the contract or the conclusion of
an additional act.
Of course, this information must include at least the elements from art. 17 para.
(3), respectively:
3
published in the Official Gazette of Romania no. 1006 of December 18, 2006.
4
According to law no. 346/2004.
5
published in the Official Gazette of Romania no. 1066 of November 17, 2004, republished pursuant to
art. XII of title II of the second book of Law no. 161/2003 on some measures to ensure transparency in
the exercise of public dignity, public office and business environment, prevention and sanctioning of
corruption, published in the Official Gazette of Romania, Part I, no. 279 of April 21, 2003, with
subsequent amendments, giving the texts a new numbering.
6
Craiova Court of Appeal, Second Civil Section and for labor disputes and social insurance, Decision
no. 10104/2008, www.costelgilca.ro.
28
a) the identity of the parties;

b) the job or, in the absence of a permanent job, the possibility for the employee to
work in various places;
c) the headquarters or, as the case may be, the domicile of the employer;
d) the position / occupation according to the specification of the Classification of
occupations in Romania or other normative acts, as well as the job description,
specifying the job attributions;
e) the criteria for evaluating the professional activity of the employee applicable at
the level of the employer;
f) job-specific risks;
g) the date from which the contract is to take effect;
h) in the case of a fixed-term employment contract or a temporary employment
contract, their duration;
i) the duration of the rest leave to which the employee is entitled;
j) the conditions for granting the notice by the contracting parties and its duration;
k) the basic salary, other constitutive elements of the salary incomes, as well as the
periodicity of the payment of the salary to which the employee is entitled;
l) normal working hours, expressed in hours / day and hours / week;
m) indication of the collective labor contract that regulates the working conditions
of the employee;
n) the duration of the probationary period.
Developments in the labor market and in employer-employee relations in order to
establish more flexible labor relations, must ensure the creation of conditions for the
development of the business environment but, at the same time, must ensure a
consistent debureaucratization at the level of labor relations. In the context of the
experience of countries severely affected by the evolution of the virus and of measures
which had a positive impact in limiting its spread and which targeted actions in the
field of public health, while limiting or interrupting socio-economic activities, it was
necessary to implement a series of measures. Romania.
Thus, the main problem reported in the public space by business representatives
was the relative rigidity of the provisions on labor market flexibility, meaning that it
was necessary to change the current provisions to debureaucratize labor relations by
removing obstacles to micro-enterprises. to grow and create jobs.
Given the current context, also generated by the global pandemic situation, the
Labor Code was recently completed and amended by the adoption of O.U.G. 37 of
May 5, 20217.
Specifically, a first amendment introduced by this normative act concerns the
obligation of the employer to insert (not only to inform) the elements provided in art. 17
par. (3) in the content of the individual employment contract, except for the job description
for the employees of micro-enterprises that have up to 9 employees and achieve a net
annual turnover or have total assets of up to 2 million euros, equivalent in lei8.
7
published in the Official Gazette of Romania no. 474 of May 6, 2021.
8
defined as provided by art. 4 para. (1) lit. a) of Law no. 346/2004 on stimulating the establishment and
development of small and medium enterprises, with subsequent amendments and completions,
published in the Official Gazette of Romania no. 681 of July 29, 2004.
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Conference Paper
For these employees, the specification of the job attributions can be done verbally,
not necessarily through the job description.
Therefore, the "criteria for evaluating the professional activity of the employee
applicable at the level of the employer" are also negotiated. If the employee signs the
contract, it turns out that he agrees with these criteria and has mastered them. The
change introduced is welcome, given that there are currently approximately 500,000
micro-enterprises in Romania with up to 9 employees.
For these, it was necessary to ensure the creation of conditions for the
development of the business environment, taking into account developments in the
labor market.
This statement is justified by the fact that some provisions of labor law regarding
the employer's obligations regarding the preparation of the job description, the internal
regulations or related to employment records encourage the increase of bureaucracy, as
well as the use of significant material and time resources of employers, especially those
defined as micro-enterprises, which according to the law have up to 9 employees.
Another amendment introduced concerns Article 119, paragraph 2, in the sense
that for mobile employees, employees working from home and employees of micro-
enterprises defined in art. 4 para. (1) lit. a) of Law no. 346/2004, the employer keeps
records of the working hours performed daily by each employee under the conditions
established with the employees by written agreement, depending on the specific
activity carried out by them.
The record of working hours, therefore, must refer to each individual employee,
regardless of whether it is a normal work schedule or not, fixed or flexible or
individualized.
It is possible through various documents, such as time sheets, attendance sheets or
electronic means of evidence (magnetic cards).
These documents should be kept at the premises of the unit, or at the work points
where the work is performed so that the Labor Inspectorate can verify that the
employer complies with the legal provisions regarding the working time of the
workers.
By way of derogation 9 from the provisions of art. 118 para. (1) of the Labor Code,
employers in the private system, central and local public authorities and institutions,
regardless of the method of financing and subordination, as well as autonomous
utilities, national companies, national companies and companies in which the share
capital is wholly or majority owned by state or an administrative-territorial unit, with a
number of more than 50 employees may establish individualized work programs, with
the employee's consent, so that between employees to ensure the existence of an
interval of one hour at the beginning and end of the work program , within three hours.
9
Derogation provided by law no. 179/2020 of 18 August 2020 for the approval of the Government
Emergency Ordinance no. 70/2020 regarding the regulation of some measures, starting with May 15,
2020, in the context of the epidemiological situation determined by the spread of the SARS-CoV-2
coronavirus, for the extension of some terms, for the amendment and completion of Law no. 227/2015
regarding the Fiscal Code, of the National Education Law no. 1/2011, as well as other normative acts,
published in the Official Gazette of Romania no. 755 of 19 August 2020.
30
Finally, a last amendment brought by O.U.G no. 37/2021 concerns article 241 of
the Labor Code, in the sense that the Internal Regulation will be drawn up by the
employer, except for the micro-enterprises defined in art. 4 para. (1) lit. a) of Law no.
346/2004, with the consultation of the union or of the employees' representatives, as
the case may be.
The drafting of the regulation is the exclusive attribute of the employer.
In carrying out the activity in each unit, in conditions of the highest possible
efficiency, the work discipline is a necessary and indispensable objective condition. By
virtue of the subordination report, the employee must comply not only with the general
work obligations provided in the regulations, in the individual employment contract, in
the applicable collective labor agreement, in the internal regulations, but also the
measures ordered by the head of the unit by written or verbal order , in the exercise of
its powers of coordination, guidance and control.
The internal regulation is the act by which the employer establishes the rules for
carrying out the activity in the respective unit.
Through it is manifested the power of direction which it has under the legal
provisions. The union or the employees' representatives are only consulted.
The consultation is recommended, participating in its elaboration and the
employees, thus creating the premise of its observance by its recipients.
Conclusion(s)
In accordance with European law, the information obligation may be fulfilled by
means of a written contract, a letter of employment or one or more other documents or,
in their absence, a written declaration, signed by the employer.
The need to maintain a certain degree of flexibility in labor relations, had to be
regulated in terms of the internal legal framework in Romania.
The regulation was also necessary in order to protect the interests of employees
with regard to obtaining a document, any change in the essential elements of the
contract or employment relationship, which must be brought to their attention in
writing.
Bibliography:
1. Vlad Barbu, Gheorghe Lucian, Labor Law, university course, Sitech Publishing House,
Craiova, 2019
2. Directive 91/533 / EEC of 14 October 1991 on the employer's obligation to inform
employees of the conditions applicable to the contract or employment relationship
(91/533 / EEC). FIRST PUBLICATION: Official Journal no. L 288/1991, pp. 32 - 35
3. Law no. 179/2020 of August 18, 2020 for the approval of the Government Emergency
Ordinance no. 70/2020 regarding the regulation of some measures, starting with May 15,
2020, in the context of the epidemiological situation determined by the spread of the
SARS-CoV-2 coronavirus, for the extension of some terms, for the amendment and
completion of Law no. 227/2015 regarding the Fiscal Code, of the National Education
31
Conference Paper
Law no. 1/2011, as well as other normative acts, published in the Official Gazette of
Romania no. 755 of 19 August 2020
4. Law no. 467/2006 on establishing the general framework for informing and consulting
employees published in the Official Gazette of Romania no. 1006 of December 18, 2006
5. Law no. 346 of July 14, 2004 on stimulating the establishment and development of small
and medium enterprises, published in the Official Gazette of Romania no. 681 of July
29, 2004
6. Law no. 53 of January 24, 2003, Republished, Labor Code published in the Official
Gazette of Romania no. 345 of May 18, 2011. Republished pursuant to art. V of Law no.
40/2011 for the amendment and completion of Law no. 53/2003 - Labor Code, published
in the Official Gazette of Romania, Part I, no. 225 of March 31, 2011, giving the texts a
new numbering.
7. EMERGENCY ORDINANCE No. 37/2021 of May 5, 2021 for the amendment and
completion of Law no. 53/2003 - Labor Code, published in the Official Gazette of
Romania no. of May 6, 2021
8. C. Ap. Craiova, Second Civil Section and for labor disputes and social insurance,
Decision no. 10104/2008, www.costelgilca.ro
32
THE LAW APPLICABLE TO THE SEPARATION

OF BODY IN THE ROMANIAN PRIVATE
INTERNATIONAL LAW
Nadia-Cerasela ANIŢEI*
Abstract: The article aims to study on the one hand the provisions regarding the law
applicable to the separation of body enunciated in art. 2602 of the Civil Code with the marginal
name "Law applicable to separation of body" provides: "The law governing divorce applies
accordingly to separation of body." from the Romanian Civil Code. From the provisions of art.
2602 of the Civil Code, we deduce that by applying by analogy the provisions of art. 2597 of the
Civil Code and art. 2600 Civil Code para. (3). The Romanian Civil Code does not regulate the
separation of body as an independent institution but refers to "de facto separation" only as a
reason for divorce (art. 373 letter c C civil) and in its guilt reflex (art. 379 para. ) C civ). In this
context. Art. 2602 C civ appears as practically without object. On the other hand, to present the
provisions of art. 5 - art. 8 and art. 10 of Regulation no. 1259/2010 implementing a form of
enhanced cooperation in the area of the law applicable to divorce and legal separation. The
article will be structured on two axes: 1. the law applicable to the separation of body from the
perspective of the Romanian Civil Code; 2. the law applicable to the separation of the body
from the perspective of Regulation no. 1259/2010 implementing a form of enhanced cooperation
in the area of the law applicable to divorce and legal separation.
Keywords: choice of the law applicable to the separation of body, spouses, Romanian
private international law, Romanian Civil Code
1. Law applicable to legal separation according to the Romanian Civil Code
1.1. Legal basis of the provisions on the law applicable

to legal separation under the Roman Civil Code
Article 2602 of the Civil Code with the marginal title "Law applicable to legal
separation" states: "The law governing divorce shall also apply to legal separation."
From the provisions of Article 2602 of the Civil Code we note that the legal rules
of Articles 2597 to 2601 of the Roman Civil Code also apply to the choice of law
agreement applicable to legal separation.
The Roman Civil Code does not regulate legal separation as an institution in its
own right, but refers to "de facto separation" only as a ground for divorce (art. 373 lit c
C civ) and in its reflection on the level of fault (art. 379 (2) Civil Code).
In this context. Article 2602 of the Civil Code appears to be practically irrelevant.
* PhD Univ. Prof, Faculty of Law, Social and Political Sciences, Dunărea de Jos University, Galaţi,
Romania, e-mail: nadia.anitei@ugal.ro; ncerasela@yahoo.com.
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1.2. What is the law applicable to legal separation

by choice of law agreement?
From the provisions of Article 2602 of the Civil Code, we deduce that by analogy
with Article 2597 of the Civil Code, the law governing the choice of law of the
matrimonial property regime is the law applicable to the matrimonial property regime.
and Art. 2600 C. civ. para. (3) we note that the spouses, by mutual agreement, by the
choice of law agreement, will choose one of the following laws to govern their legal
separation:
a. the law of the State governing the spouses' common residence at the date of the
choice of law agreement applicable to the legal separation. Thus, the law of the date of
conclusion of the legal separation agreement (the old law) is the law applicable to the
legal relationship in question and constitutes the solution to the mobile conflict of laws;
b. the law of the State which governs the spouses' last common habitual residence,
but the condition laid down by the legislator is that at least one of the spouses still
resides there at the date of the choice-of-law agreement. Thus, the last common
habitual residence of the spouses shows us that it is the law of the spouses' last
common habitual residence, i.e. the new law in the context of the mobile conflict.
However, it is de facto residence in that dwelling;
c. the law of the State of nationality of either spouse will govern the choice of law
agreement applicable to the legal separation. We note that, in the case of legal
separation, the point of connection of nationality is mentioned after the spouses'
habitual residence, but is alternated with it in the subjective determination of the
applicable law;
d. the law of the State in whose territory the spouses have lived for at least three
years. We note that the legislator has established that the spouses must have lived in
the territory of that State for at least three years without specifying whether or not the
residence was common to both spouses;
e. Romanian law. The spouses have the possibility of choosing Romanian law as
lex fori, to apply to the choice of law convention applicable to the legal separation, in
so far as its provisions suit the spouses;
f. Romanian law where the foreign law, so determined, does not allow legal
separation or allows it under particularly restrictive conditions, if one of the spouses is,
at the time of the application for legal separation, a Romanian citizen;
g. Romanian law where the foreign law, so determined, does not allow legal
separation or allows it under particularly restrictive conditions, if one of the spouses at
the time of the application for legal .
1.3. What is the law applicable to legal separation

in the absence of a choice of law agreement?
It follows from the provisions of Article 2602 of the Civil Code that, applying by
analogy the provisions of Article 2600 of the Civil Code, the law applicable to legal
34
separation in the absence of a choice of law agreement applicable to legal separation is

one of the following laws in the following order:
a) the law of the spouses' common habitual residence at the date of the application
for legal separation; (so, for example, if the spouses have their habitual residence at the
date of the application for legal separation in Italy, Italian law applies regardless of the
nationality of the two spouses);
- in the absence of common habitual residence,
b) the law of the last common habitual residence, (for example, the last common
habitual residence was in Greece, so Greek law applies to the legal separation)
provided that at least one of the spouses still has a habitual residence in the territory of
that State (so, in our example, one of the spouses still lives in Greece) at the date of the
application for legal separation;
- if one of the spouses is not habitually resident in the territory of the State where
they last had their common habitual residence,
(c) the law of the spouses' common nationality at the time of the application for
legal separation shall govern the legal separation only if the spouses have the same
nationality;
- in the absence of the spouses' common nationality,
(d) the law of the spouses' last common nationality shall govern the legal
separation only if at least one of them has that nationality at the time of the application
for legal separation;
e) Romanian law, in all other cases. Thus, we apply Romanian law to legal
separation in the following cases:
- if the spouses have residences in different states (unless one of them is still
habitually resident in that state at the time of the application for legal separation);
- the spouses have different nationality (unless one of the spouses still has joint
nationality at the time of the application for legal separation);
- if the foreign law, thus determined, does not allow the legal separation or allows
it under particularly restrictive conditions, Romanian law applies, if one of the spouses
is, at the date of the application for legal separation, a Romanian citizen;
- if the foreign law, so determined, does not allow legal separation or admits it
under particularly restrictive conditions, Romanian law shall apply, if one of the
spouses is habitually resident in Romania;
- stateless persons.
1.4. Scope of the law applicable to legal separation

The Rome III Regulation does not contain any provisions applicable to the scope
of the law on legal separation.
Paragraph 10(2) of the Preamble to the Rome III Regulation states "This
Regulation should apply only to the dissolution or breakdown of the marriage bond.
The law established by the conflict-of-law rules of this Regulation should apply to the
grounds of divorce and legal separation."
From the scope of the law applicable to legal separation will be excluded the
matters which fall outside the scope of the Rome III Regulation provided for in Article
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1(2), namely: property consequences of legal separation, parental responsibility and

maintenance obligations, etc.
As such, the following matters remain within the scope of the law on legal
separation:
- Determination of the persons entitled to request legal separation;
- The grounds for legal separation;
Effects of legal separation on personal relationships, personal rights under legal
separation, etc.
1.5. What does recognition of legal separation by unilateral termination entail?

By applying the provisions of Article 2601 of the Civil Code, we note that if the
act requesting legal separation is drawn up abroad solely by unilateral manifestation of
the man's will to separate from his wife, it cannot be recognised in Romania if the
applicable foreign law does not also recognise the woman's equal right, except where
the following conditions are cumulatively met:
(a) the applicable foreign law has recognised the legality of the act of legal
separation by fulfilling all the substantive and formal conditions;
(b) the woman has freely and unequivocally accepted the legal separation;
(c) there is no other ground in Romania for refusing recognition of the judgment
granting legal separation in this way.
2. Law applicable to legal separation under Regulation 1259/2010

implementing a form of enhanced cooperation in the area of the law
applicable to divorce and legal separation
2.1. Provisions of Regulation No 1259/2010 implementing

a form of enhanced cooperation in the area of the law
applicable to divorce and legal separation
Article 5 with the marginal heading "Choice of law by the parties" provides in
paragraph 1: "The spouses may agree to designate the law applicable to .... and to legal
separation, provided that it is one of the following laws:
(a) the law of the State in whose territory the spouses have their habitual residence
at the time of the conclusion of the agreement;
or
(b) the law of the State in which the spouses had their last habitual residence,
provided that one of them still has that residence at the time the agreement is concluded;
or
(c) the law of the State of nationality of one of the spouses at the time of the
conclusion of the agreement;
or
(d) the law of the forum.
36
Parag. (2) provides: "Notwithstanding paragraph 3, the agreement designating the

applicable law may be concluded and modified at any time, but not later than the date
of the court's seising."
Under para. (3): "Where the law of the forum so provides, the spouses may also
designate the applicable law before the court during the proceedings. In this case, the
court shall take note of the spouses' agreement in accordance with the law of the forum."
Article 6 with the marginal heading "Consent and substantive validity" provides:
"The existence and validity of a choice of law agreement or any clause thereof shall be
determined by the law which would govern it under these Rules if that agreement or
clause were valid. (para. 1) However, in order to establish that he has not given his
consent, a spouse may rely on the law of the country in which he is habitually resident
at the time the court is seised, if it appears from the circumstances of the case that it
would not be reasonable to determine the effect of his conduct under the law referred to
in paragraph 1." (para.2)
Article 7 with the marginal heading "Formal validity" states: "The agreement
referred to in Article 5(1) and (2) shall be concluded in writing, dated and signed by both
spouses. Any communication in electronic form which permits a durable record of the
agreement shall be deemed to be in writing. However, if the law of the participating
Member State in which both spouses have their habitual residence at the time of the
conclusion of the agreement provides for additional formal conditions for such
agreements, those conditions shall apply. (para. 2) If, at the time of the conclusion of the
agreement, the spouses have their habitual residence in different participating Member
States and if the laws of those States provide for different formal conditions, the
agreement shall be formally valid if it satisfies the conditions laid down by either of those
laws. (para 3) If, at the time the agreement is concluded, only one of the spouses is
habitually resident in a participating Member State and that State lays down additional
formal conditions for this type of agreement, those conditions shall apply." (para. 4)
Article 8 with the marginal heading "Law applicable in the absence of an
expressed choice of the parties" provides: "In the absence of a choice under Article 5,
....and legal separation shall be governed by the law of the State:
(a) in whose territory the spouses are habitually resident at the time the court is
seised;
or, failing that;
(b) in the territory where the spouses were last habitually resident, provided that
this period did not end more than one year before the court was seised, as long as one
of them is still resident there at the time the court is seised;
or, failing that;
(c) whose nationality is held by both spouses at the time the court is seised;
or, failing that;
(d) where the court is seised."
Article 10 with the marginal heading "Application of the law of the forum"
provides: "Where the law applicable under Articles 5 or 8 does not provide for divorce
or does not grant one of the spouses, on grounds of sex, equal access to divorce or legal
separation, the law of the forum shall apply."
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Conference Paper
2.2. What is the law applicable to legal separation by choice of law by the parties?
From the provisions of Article 5 para. (1) of Regulation No 1259/2010
implementing a form of enhanced cooperation in the area of the law applicable to
divorce and legal separation of spouses we note that the spouses by choice of law
agreement may choose as the law applicable to the legal separation any of the
following laws in no particular order:
a. the law of the State governing the spouses' habitual residence at the time the
agreement is entered into;
or
a. b. the law of the State which governs the spouses' last habitual residence,
provided that one of them still has that residence at the time the agreement is
concluded;
or
c. the law of the nationality of one of the spouses at the time of the conclusion of
the agreement;
or
d. the law of the forum.
Under the provisions of para. (2) of the same Article, the agreement by which the
spouses designate the law applicable to the legal separation may be concluded and
amended at any time without prejudice to paragraph 3, up to the date of the court's
referral.
As an exception to paragraph 2, paragraph 3, sentence I of the same Article
provides that the law of the forum may contain provisions giving the spouses the
possibility of choosing the law applicable to the legal separation also before the court
during the proceedings.
Paragraph (3), sentence (II) of the same Article provides that where the spouses
choose the law applicable to legal separation before the court during the proceedings,
the court shall take note of the spouses' agreement in accordance with the law of the
forum.
2.3. What is the law applicable to legal separation in the absence

of a choice of law by the parties?
It follows from the provisions of Article 8 of Regulation 1259/2010 implementing
a form of enhanced cooperation in the area of the law applicable to divorce and legal
separation that where the spouses have not chosen by agreement the law applicable to
the legal separation the law which will govern the legal separation is one of the
following laws in the order set out:
a. the law of the spouses' habitual residence at the time the court is seised;
or, failing that;
b. the law of the last habitual residence, provided that one of the spouses still has
that residence at the time the court is seised but not more than one year has elapsed
since the date the court is seised;
38
or, failing that;

c. the law of the spouses' joint nationality at the time the court was seised;
or, failing that.
2.4. When does the law of the forum apply to legal separation?
According to Article 10 of Regulation 1259/2010 implementing a form of
enhanced cooperation in the area of the law applicable to divorce and legal separation,
the law of the forum applies in the following situations:
1. if the law applicable to the legal separation is not provided for in Articles 5 or 8
of Regulation No 1259/2010 implementing a form of enhanced cooperation in the area
of the law applicable to divorce and legal separation;
2. if the law applicable to legal separation does not grant equal access to divorce to
one of the spouses on grounds of sex.
Conclusions
An analysis of the provisions of the Romanian Civil Code on the choice of law
agreement applicable to legal separation shows that the provisions of Regulation
1259/2010 implementing a form of enhanced cooperation in the area of the law
applicable to divorce and legal separation (which entered into force in June 2012) are
taken over.
Bibliography:
1. Romanian Civil Code;
2. Regulation 1259/2010 implementing a form of enhanced cooperation in the area of the
law applicable to divorce and legal separation (which entered into force in June 2012) -
the Rome III Regulation.
39
Conference Paper
CURRENT ISSUES REGARDING

THE ENTERPRISE CONTRACT
Livia MOCANU*
Abstract: As a result of an important development of the field of services or performance

of works, numerous and complex material or intellectual works as well as services are
performed through the enterprise contract. Consequently, many new elements in the regulation
of the enterprise contract from the Civil Code, compared to the previous regulations, a situation
in which we considered it beneficial to bring them to the attention of those interested in this
matter.
Keywords: enterprise contract, contractor, beneficiary, construction work enterprise.
1. Introduction
The enterprise contract is regulated in the Civil Code1, Book V „About

Obligations”, Title IX „Various Special Contractsˮ, Chapter VI „Enterprise Contractˮ,
article1851 - 1880. Compared to the old regulation that treated the enterprise contract
as a kind of lease contract, the Civil Code removes the enterprise from the scope of the
lease contract, this becoming a distinct, autonomous2 contract.
According to the disposition of article1851 paragraph (1) Civil Code, the
enterprise is the contract by which a person, called contractor, undertakes, at his own
risk, to perform a certain work, material or intellectual, or to provide a certain service
for another person, called beneficiary, in exchange for a price.
The definition of an enterprise contract clearly expresses the specifics of this
contract by which the contractor undertakes to perform a material or intellectual work
or to provide a service at his own risk.
In other words, throughout the performance of the contract, the contractor
maintains its economic and operational independence from the beneficiary, not being
in a relationship of subordination to this3.
As the specialized doctrine has rightly been expressed, in the enterprise contract
each contracting party is liable for damages caused to third parties and, even if the
regulation of the contract does not explicitly show this, most enterprise contracts
* PhD. Associate Professor, Valahia University of Târgovişte, The Faculty of Law and Administrative
Sciences.
1
Law no. 287/2009 of the Civil Code, published in the Official Monitor of Romania, part I, no. 511 of July
24, 2009, amended by Law no. 71/2011, published in the Official Monitor of Romania, part I, no. 409
of June 10, 2011, as subsequently amended and supplemented.
2
Codruţa Elena Mangu, Riscurile în principalele contracte civile potrivit noului Cod civil, Universul
Juridic Publishing House, Bucharest, 2013, pp.185 – 186.
3
Liviu Stănciulescu, Curs de drept civil. Contracte, Second Edition – revised and added, Hamangiu
Publishing House, Bucharest, 2014, p. 344, Vasile Nemeş, Gabriela Fierbinţeanu, Dreptul contractelor
civile şi comerciale, Universul Juridic Publishing House, Bucharest, 2020, p. 225.
40
include express clauses both regarding economic and financial autonomy, as well as on
exclusive liability for damages caused to third parties4.
Also, this contract has as object a wide range of activities that can consist in
making something, building a building, preparing projects, arrangements, repairs, but
also meditations, specialized consulting, etc5.
Here it should be mentioned that the construction works represent an important
component of the contractor’s activity meaning that the legislator has developed
special rules with the mention that, as it results from article 1874 of the Civil Code, the
enterprise contract for construction works concerns exclusively the works for which it
is necessary to issue the building permit.
At the same time, the authorization of construction works is widely regulated by
Law no. 50/19916 which remains the main legal instrument in this field.
Regarding the object of the enterprise contract, it is necessary to show the fact
that, in the current regulation, the legislator classifies the works enterprise as material
or intellectual, a classification that the Civil Code of 1864 did not provide.
This division is also agreed in the French doctrine which distinguishes “between
the material enterprise”, to which the obligations of result are specific, and the
intellectual enterprise, which has as specific the obligations of means” 7.
In the context of these particularities of the enterprise contract, we intend to
analyse in the following the main obligations of the contractor, with emphasis on the
issue of risk.
2. The contractor’s obligation to perform the work or to provide the service
The obligation to execute the work is the main obligation of the contractor. Thus,
he must execute and deliver the work within the term and under the conditions
provided in the contract.
A normative landmark is represented by article 1857 paragraph (1) of the Civil
Code according to which, unless otherwise provided by law or contract, the contractor
is obliged to execute the work with his materials. Therefore, as a rule, the work to
which the contractor undertakes under the contract must be carried out with the
materials procured by him.
However, if it results from the law or if the parties agree, the work that is the
object of the contract can also be done with the materials that the beneficiary procures.
According to the law, the contractor who works with his materials is responsible
for their quality, according to the provisions of the sales contract, i.e. just like a seller
for the work sold [article 1857 paragraph (2) of the Civil Code].
When the materials have been purchased by the beneficiary, become applicable
the provisions of the article 1857 paragraph (3) of the Civil Code according to which:
“The contractor to whom the beneficiary has entrusted the materials is obliged to keep
4
Vasile Nemeş, Gabriela Fierbinţeanu, op.cit., p. 226.
5
Idem.
6
Republished in Of. M. no. 933, 13 October 2004.
7
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Conference Paper
and use them according to their destination, according to the applicable technical rules,
to justify the way they were used and to return what was not used to execute the work”.
Therefore, in this situation, the contractor will be responsible for keeping the
materials as a depositary, which determines the similarity of the enterprise with the
deposit contract. Moreover, when the materials are procured by the beneficiary, the
parties may conclude, in addition to the enterprise contract, a deposit contract if the
situation so requires8.
The main obligation of the contractor is to process the materials purchased by the
beneficiary according to the applicable technical rules, with the obligation to justify to
the beneficiary the use of each material and to return what the contractor did not use.
The contractor’s obligation to perform the work or to provide the service may be
an obligation of result or an obligation of means.
In this regard, the legislator codified this well-known classification in doctrine and
jurisprudence of obligations, in obligations of means and obligations of result,
establishing at the same time the criteria according to which the two types of
obligations are separated. We find this regulation in article 1481 of the Civil Code
which defines the obligation of result as that in which the debtor is required to provide
the creditor with the promised result, while in the case of obligations of means, the
debtor is required to use all means necessary to achieve the promised result [article
1841 paragraph (1) and (2) of the Civil Code].
As the simple definition of the two types of obligations is not sufficient in the
separation operation, the legislator establishes in article 1841 paragraph 3 the criteria
which the judge, the contracting parties or other interested parties are required to apply
when determining whether an obligation is a means or an outcome. These criteria are
as follows:
- the manner in which the obligation is provided for in the contract;
- the existence and nature of the consideration and the other elements of the
contract;
- the degree of risk involved in achieving the result;
- the influence that the other party has on the execution of the obligation.
When the execution of the work is no longer possible, there is the issue of bearing
the risk in the contract.
The base of the matter is represented by the provisions of article 1860 of the Civil
Code whereby the legislator keeps the provisions established by article 1479 - 1481 of
the Civil Code from 1864, which are only reformulated by adapting to the new terms
specific to the enterprise contract.
Thus, we will identify in the legal text different solutions, as the materials are
purchased by the contractor or the beneficiary.
Thus, according to article1860 paragraph (1) of the Civil Code: “If before the
reception the work is lost or damaged due to causes not attributable to the beneficiary,
the contractor who purchased the material is obliged to restore it at his own expense
and in compliance with the initial conditions and deadlines, taking into account, if
necessary, by the rules on the fortuitous suspension of the execution of the obligation.”
8
42
According to these provisions, the liability of the parties to the contract of

enterprise, when the work perishes before reception, is established according to whom
the fault belongs and who procured the material necessary for the execution. Thus, if
the material was purchased by the contractor and the beneficiary has no fault in the loss
of the work, the contractor is the one who will bear the costs of restoration, under the
same conditions provided by the parties at the conclusion of the contract.
Therefore, in this situation, the contractor bears the risk of the contract, as he can
no longer claim any payment for his work9.
According to the law, this solution occurs not only when the work perishes before
reception but also if the work deteriorates, the risk being borne by the contractor in
both cases.
In correlation with the obligation of the contractor to execute the work and with
the issue of risk are also available the provisions of article 1864 paragraph (2) of the
Civil Code according to which: “If the work has perished or deteriorated before receipt
through no fault of the beneficiary, the contractor shall not be entitled to the price when
he gave the material or when the loss or damage had any cause other than defects in the
material given by the beneficiary. In this case, the contract remains in force, being
applicable the provisions of article 1860ˮ.
The analysis of the two articles mentioned above shows that when the work is lost
or damaged prior to reception, regardless of whether the material is purchased by the
contractor or the beneficiary, the risk of the contract is borne by the contractor, as a
debtor of the impossible obligation, according to the principle of res perit debitori. In
the contract of enterprise, the impossible obligation to execute is the duty of the
contractor to execute and deliver the work at the term and under the conditions
established by the parties at the conclusion of the contract.
As we have already shown, since the contractor bears the risk of the contract, he
can no longer claim the price of the labour he performed in the execution of the work.
This situation is related to the moment of receiving the work because, at this moment,
the transfer of the contract risks from the contractor’s patrimony to that of the beneficiary
operates, the solution being the same in the case of the transfer of the work risk10.
The reception of the work represents an important moment in the enterprise
contract, defining also one of the main obligations of the beneficiary which consists in
verifying and approving the way in which the contractor executed the work. In some
cases the receipt of the paper may coincide with the reception.
In connection with this moment, we must also remember the provisions of article
1878 of the Civil Code applicable to the undertaking for construction works, according
to which: “(1) After the completion of the construction, the provisional acceptance
shall be carried out, in accordance with the law, at the end of the work, followed by the
final acceptance.
(2) The risks pass on to the beneficiary from the date of provisional acceptance to
the completion of the work”.
9
See, Liviu Stănciulescu, op.cit., pp. 349 – 350.
10
Codruţa Elena Mangu, op.cit., p. 204.
43
Conference Paper
Therefore, in the matter of the construction works company, the legislator

distinguishes between the provisional acceptance and the final acceptance, expressly
establishing that the risks of the contract will be transferred to the beneficiary at the
time of the provisional acceptance at the end of the works. Thus, at the end of the
execution, the beneficiary will make a temporary reception, at which point he will be
considered the owner of the work and will take over the risk of the contract.
At the same time, the reception can be total or partial, express or tacit11, its effect
being, in all cases, the transfer of risks from the contractor to the beneficiary.
The tacit reception is provided in article 1862 paragraph (2) of the Civil Code
according to which: “If, without good reasons, the beneficiary does not present himself
or does not communicate without delay to the contractor the result of the verification,
the work is considered received without reservations”.
Here we still have our attention on the provisions of article 1860 paragraph (1) of
the Civil Code according to which the contractor will be obliged to redo the work in
compliance with all the initial conditions. This means that the contractor is obliged to
carry out a work identical to that carried out before the loss or damage, and if the
beneficiary wishes to make changes or additional works he will bear their cost.
In the second paragraph of article 1860 is regulated the liability of the parties in
case the material for the execution of the work was purchased by the beneficiary.
Therefore: “When the material has been purchased by the beneficiary, he is required to
bear the costs of restoring the work only if the loss was due to a defect in the materials.
In other cases, the beneficiary is obliged to provide the materials again if the loss or
damage is not attributable to the contractor.”
Therefore, when the material was purchased by the beneficiary and the work
perishes before receipt, he will bear the risk of the contract, as owner. This time, the
beneficiary will be obliged to pay the contractor the value of the labour performed for
the execution of the work.
This is the case if the loss was due to a defect in the materials because, if the loss
of the work is due to causes other than defects in the materials purchased by the
beneficiary, the latter is only obliged to provide again the materials necessary for the
execution of the work bearing other expenses [article 1860 paragraph (2) Thesis II].
As it is emphasized in the specialized doctrine12, the provisions of article 1860
paragraph (2) of the Civil Code they can have other meanings in the situation where the
contractor is a professional and the beneficiary is in the position of consumer. Thus, an
obligation to advise the contractor on the procurement by the beneficiary of the materials
necessary for the execution of the work was identified. We share this opinion given that
most of the time the contractor is a professional and, taking into account the specifics of
the business contract, the beneficiary, “profane” in the matter, needs not only information
but also advice. Therefore, the advice of the beneficiary-consumer involves a conduct of
the contractor to help the beneficiary to know in a substantiated way what are the
materials that he has to procure in order to execute the contracted work13.
11
12
13
In detail, on the obligation of counselling, see Anca Nicoleta Gheorghe, Camelia Spasici, Dana
Simona Arjoca, Dreptul consumaţiei, Hamangiu Publishing House, Bucharest, 2012, pp. 70 - 72.
44
In this regard, we should note article 1858 of the Civil Code which, as a novelty,
expressly regulates the contractor’s obligation to inform the beneficiary without delay
if the execution and/or quality of the work would be affected by the materials provided
by the beneficiary, the improper instructions given by him or the existence or
occurrence of circumstances for which the contractor is not liable. This obligation to
inform is expressly regulated by the legislator in the Civil Code, as an effect of
Directive no. 99/44 / EC of 25 May 1999 on certain aspects of the sale of consumer
goods and related guarantees.
As in the provisions of article 1860 paragraph (3) of the Civil Code, when the loss or
damage occurs after the receipt of the work: “... the contractor remains liable, if
applicable, under the warranty against defects and for the agreed qualities”. Therefore,
after receiving the work, its loss or damage will be borne by the contractor, following the
obligation to guarantee against defects and for the qualities established by the contract.
In relation to the considerations made above regarding the classification of
obligations into obligations of means and obligations of result, the obligation of the
contractor to execute the work and to deliver it to the beneficiary is presented as an
obligation of result. Therefore, if the contractor does not perform the obligation or it is
improperly executed, in order to be exonerated from liability, he will have to prove the
existence of a foreign cause, which is not attributable to him.
The contractor’s obligation to execute the work also includes the obligation to
preserve it until delivery. It is a specific obligation of the enterprise contract, its
efficient, correct execution also implying this duty of the contractor. The obligation of
the contractor to preserve the work until it is handed over to the beneficiary is an
obligation of means so that, in case of non-fulfilment, the beneficiary will be the one
obliged to prove the fault of the contractor.
In the literature, the obligation of the conservation contractor is included in the
category of obligations of severe means14, which “... impose a higher diligence, in
particular, bringing them closer to the obligations of result, giving rise to a presumption
of guilt on the part of the debtor...ˮ, motivated by the fact that he uses the materials
procured by the beneficiary for the work, independently, at his own risk, without being
supervised or coordinated in this respect by the beneficiary, which attracts maximum
diligence on his part and caution in their us.
3. Obligation of the contractor to guarantee for defects
The base of the matter is the provisions of article 1863 of the Civil Code according
to which: “The Contractor owes a guarantee against defects in the work and for the
agreed qualities, in accordance with the provisions on the guarantee against defects in
the work sold, which apply accordingly”.
It is clear from the legal text that the contractor owes a guarantee both for the
hidden defects and for the conformity of the delivered products. This guarantee
obligation operates when the parties to the enterprise contract agree that the materials
14
45
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will be procured by the contractor, assuming that “... the contractor has a dual quality, a
supplier of raw materials and materials and a service provider”.15
Therefore, since the contractor makes a sale of the executed work, he will be
responsible both for the possible defects of the work and for its quality, like the seller
in the sales contract for the defects of the sold thing.
The provisions of the sale contract will be applied accordingly, so there will be
under the provisions of article 1709 paragraph (1) Civil Code, an article which
regulates as novelty, the procedure to follow regarding the defects.
Therefore, the beneficiary who has discovered the hidden defects is obliged to
bring them to the notice of the contractor within a reasonable time, determined
according to the circumstances, under penalty of forfeiture of the right to request
termination or, as the case may be, rescission of the contract. It follows from reading of
the legal text that it is a mandatory procedure to be followed before the introduction of
actions for termination of the contract for the culpable non-performance of the
contractual obligations by one of the contracting parties.
In the situation of identifying the defects, the right to action of the beneficiary is
prescribed within the general limitation period, but the prescription begins to flow
differently, as the defects are hidden or apparent, incidents being disposed in article
2530 paragraph (1) and of article 2531 paragraph (1) of the Civil Code.
4. Conclusion(s)
The enterprise contract is a bilateral (synallagmatic) contract generating mutual

and interdependent obligations for both parties. Thus, the contractor has the obligation
to execute the work at his own risk and to hand it over to the beneficiary, and the
beneficiary has the obligation to pay the price.
The legal institution of risk is an important feature of synallagmatic contracts and
in the current regulation of the enterprise contract, novelty elements have also appeared
in this matter. This is the reason why we set out to analyse the risk in the enterprise
contract from the perspective of the contractor’s obligations, with the desire to provide
useful material in knowing this complex issue.
Bibliography:
1. Anca Nicoleta Gheorghe, Camelia Spasici, Dana Simona Arjoca, Dreptul consumaţiei,
Hamangiu Publishing House, Bucharest, 2012.
2. Codruţa Elena Mangu, Riscurile în principalele contracte civile potrivit noului Cod civil,
Universul Juridic Publishing House, Bucharest, 2013.
3. Liviu Stănciulescu, Curs de drept civil. Contracte, Second Edition – revised and added,
Hamangiu Publishing House, Bucharest, 2014.
4. Vasile Nemeş, Gabriela Fierbinţeanu, Dreptul contractelor civile şi comerciale,
Universul Juridic Publishing House, Bucharest, 2020.
15
46
DOMESTIC VIOLENCE AGAINST WOMEN IN SPAIN.

AN JURIDICAL AND ECONOMETRIC APPROACH
IN PANDEMIC TIMES
Lavinia Mihaela VLĂDILĂ*
Nicoleta Valentina FLOREA**
Abstract: Domestic violence has social, economic, and psychological influence. This
influence is given by many factors, factors described by researchers and professionals in
important studies. In this article, the authors offer an analysis of these influencing factors
and of the domestic violence phenomenon, using two approaches: juridical and
econometric. It is also implemented an econometric model, which will help to better
understand the influence of each analysed factor, and propose some measures to minimize
their impact and improve social, economic and psychological life of victims, but also of
society as a whole.
Keywords: domestic violence, statistics, mathematical approach, pandemic times.
Introduction
Over the past three decades, violence against women has been recognized as a
serious and pervasive problem1. A study made in 2013 in 81 countries, found that
globally 30% of women aged over 15 had experienced violence from a partner - that
means that almost one-third of women were survivors of domestic violence2. Violence
against women is the assaulting, threatening or denial of a woman’s basic rights. This
led to serious physical, sexual or psychological pain or suffering3.
Because the period that humanity has gone through in the last year, from March
2020 to the present, has been a very special one, which has influenced all aspects of
social life, we approached at the beginning of this study the situation of domestic
violence in these special times. Statistics from the last year show an increase in
situations of domestic violence, not only in Spain or Romania, but also in other
countries, as we will analyse further.
* Associate Professor PhD Lavinia Mihaela Vlădilă, Faculty of Law and Administrative Sciences, Valahia
University of Târgovişte, Romania, laviniavladila@yahoo.com.
** Lecturer PhD Nicoleta Valentina Florea, Faculty of Economic Sciences, Valahia University of
Târgovişte, Romania, floreanicol@yahoo.com.
1
Renzetti C.M., Bergen R.K., 2005, p.1.
2
Carline A., Easteal P., 2014.
3
City Soul, 2006, p. 2.
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1. Section. About domestic violence against women in pandemic times
1.1. Subsection. The situation of violence against women

in Spain and other countries
Pandemic period had influence in many fields and activities, including in professional
and personal lives. In personal lives, domestic violence increased, especially in lockdown
period, and the number of victims (women beaten, killed, victims of rape or sexual assault)
increased. As more countries report infection and lockdown, more domestic violence
helplines and shelters across the world are reporting rising calls for help.
In Argentina, Canada, France, Germany, Spain, the United Kingdom4, and the
United States5, government authorities, women’s rights activists and civil society
partners have flagged increasing reports of domestic violence during the crisis, and
heightened demand for emergency shelter6.
Although two years earlier, in 2019, the number of women killed as a result of
gender-based violence in Spain had become the highest compared to the situation in
2016 (55 women died in 2019, compared to 49 in 2016)7, still during the state of
emergency (lockdown), there was a slight decrease in homicides on this level.
However, the case of Spain is different from the situation that other countries with
a similar culture have experienced. Data from 11 countries on the killing of women by
intimate partners also show inconclusive trends (UNODC, COVID-19, forthcoming).
As in the case of homicide in general, some changes could be observed shortly after the
introduction of lockdown measures: countries such as Italy recording minor increases
and countries such as Paraguay recording no change (Figure no. 1). These trends
rapidly returned to the pre-existing patterns, however. A comprehensive assessment of
the impact of COVID-19 on the gender-related killings of women and girls will not be
feasible until the end of 2021.
Figure no. 1. Number of female victims of intimate partner homicide (October 2019- August
2020), Italy, Paraguay and Spain8.
4
bbc.com, 2020.
5
missionlocal, 2020
6
The Guardian.com, 2020; euronews, 2020; diario21.tv, 2020.
7
https://www.euroweeklynews.com/2020/01/02/2019-worst-for-gender-violence-murders-in-spain-since-2015/
8
Country-level data collected as part of the UNODC Global initiative to improve knowledge of the
impact of COVID-19 on crime and drugs.
48
If the number of homicides against the background of gender violence decreased

even during the lockdown period, we notice that later it returned to its previous levels.
In return, as we may observe, in pandemic period, in Spain grew the number of calls
from women to ask for help in domestic violence case (Figure no. 2).
Figure no. 2. Number of monthly calls received by the national women’s helpline,
Spain (Oct. 2019-Sept. 2020)9.
The helpline provides support to victims of family and sexual violence. In the
period from Oct 2019 to Sept 2020, the calls received reached the highest-level right at
the end of the lockdown period.
Figure no. 3. Number of criminal offences recorded by the police, Spain (Oct.2019-Apr.2020).
As we may observe, the number of cases of rape and sexual assault registred two
peaks, in December 2019 and in February 2020, when the pandemic time begun.
While women and girls are subjected to violence in both the public and private
spheres, the latest edition of the Global Study on Homicide, published by UNODC in
2019, showed that the home continues to be the most dangerous place for them10.
9
Source - UNODC, elaborated with data from the Government Office against Gender-based Violence,
Spain.
10
UNODC, 2019.
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1.2. Subsection. The situation of violence against women

in Romania in pandemic times
The number of victims of domestic violence increased in pandemic times11.
In an article published by the same authors, made at Romanian level, the number
of cases of domestic violence was bigger than in Spain (Table), before pandemic times.
The policy in the field and the implication of society and the police force, reduced the
number of victims in Spain.
Table no. 1. The number of cases of domestic violence ES/RO (2010-2019)12
Year Spain Romania

2010 7800 12461
2011 7744 11592
2012 7298 12205
2013 7060 14376
2014 7084 15358
2015 7229 11598
2016 6863 12273
2017 6909 13019
2018 7388 13182
2019 7654 13603
The increase of domestic violence (in 2020 the increase was with 2,3% compared
to 2019)13 during the pandemic period pushed to the partial change of legislation in
Romania. In August 2020 has been adopted the Law no. 183/202014, through this the
aggressors who break the protection orders they can be sentenced to prison between 6
month and 5 years15.
In Romania, things are changing too slowly compared to the real scale of the
phenomenon. Considering this reason as well, in 2020 our country was again convicted
by the ECHR for violating art. 3 and 816 of the European Convention on Human Rights
in a case of domestic violence. In the case Buturugă v Romania17, to which I referred
earlier, the Court noted that in 2015 our country was facing an excessive legal
formalism; although in this case the domestic violence was certain, the courts and the
prosecutor classified the deed as a case of common violence (art. 193 and not art. 199
11
According to www.ine.es.
12
https://anes.gov.ro/, www.ine.es, https://romania.europalibera.org/
13
https://romania.europalibera.org/
14
Law no. 183/2020 regarding the amendment of law no. 217/2003 for the prevention and combating of
domestic violence was published in the Official Gazette. no. 758 / 19.08.2020.
15
According to art. 32 of Law no. 217/2003 as amended by Law no. 183/2020.
16
Art. 3 refers to the prohibition of torture and inhuman and degrading treatments, while Art. 8 refers to
the protection of family life and mail.
17
By the Decision of 11 February 2020, ruled in the case Buturugă v Romania, our country was
convicted to pay 10.000 euro as moral compensation, plus trial expenses.
50
Criminal Code), being the petitioner’s ex-husband, not taking into account the
particular aspects of domestic violence as set out in the Istanbul Convention. At the
same time, the ECHR states that the court examining the case on the merits drew
inadequate conclusions from the actual situation, motivating the acquittal of the
perpetrator by the fact that no direct evidence that “the injuries suffered by the party in
question had been caused by her ex-husband”. The Court also stated that both the
criminal and the judicial investigation did not clarify the case in all respects, as not
enough witnesses were heard in this regard.
On the other hand, one of the biggest issues in modern Spain is the unprecedented
amount of violence going on against women in Spain right now. El Pais’s article
“Spanish justice system admits it is failing victims of gender violence” shines light on
Spain’s “failure to protect at-risk women”. The solution? To detect risk and make an
assessment conducted by the police. Though this may not be the answer to everything,
there needs to be change to these policies18.
2. Section. The situation on gender-based violence in Spain.

A juridical an economic approach from 2010 until 2019.
The Goal of the research is to analyse the factors which influence domestic violence
against women. Between other objectives we mention the influence could have each
influencing factor on domestic violence against women, to analyse each impact could
have these factors, to observe the correlation between the analysed variables, to
determine descriptive statistics, and to propose measures to minimize their impact.
In order to perform this analysis, the tools we have used were regression function,
Spearman coefficient, correlation, descriptive statistics, and Excel-Data Analysis.
Data were collected from Spain level, using official information from www.ine.es
and ec.europa.eu/Eurostat, from 2010 till 2019.
Table no. 2. The analysed variables for domestic violence19
Year Y X1 X2 X3 X4 X5 X6
2010 7800 15,0 2,6 40,2 21,8 2,0 10,9
2011 7744 15,2 2,6 40,1 26,4 1,9 10,5
2012 7298 15,4 2,6 40,1 27,2 2,0 10
2013 7060 15,8 2,5 40,0 22,9 2,0 9,9
2014 7084 14,9 2,5 39,8 21,4 2,0 9,9
2015 7229 14,6 2,6 39,8 19,2 2,0 9.8
2016 6863 14,3 2,6 39,8 19,5 2,0 9,8
2017 6909 14,8 2,6 39,8 23,6 2,0 10,1
2018 7388 15,1 2,6 39,8 27,8 2,0 10
2019 7654 15,2 2,6 39,9 23,1 2,0 9,9
18
https://www.uiargonaut.com/2019/03/27/spanish-domestic-abuse-has-increased/.
19
www.ine.es, https://ec.europa.eu/eurostat
51
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This analysis is a continuation of our joint research that began two years ago. If in
the 2019 article we presented the notion of domestic and family violence, general
statistics on this type of violence, its costs, the factors that influence it, as well as a
mathematical model applicable in Romania, to understand the causes of this scourge.
In the presentation of this article we will use only six of the factors that influence
the manifestation of gender violence, defined by the variables X1-X6, while Y
represents the number of cases of domestic violence. At the same time, the analysis
will focus on the situation in Spain, which is, as it will result from our research,
different from the one discovered in Romania. The mathematical model used allowed
us to observe how these factors influence cases of gender violence in Spain.
2.1. Subsection. Implementing the econometric model.

To analyse the influence of each factor on domestic violence we used the
regression function; this is using the following formula:
We used20:
-I0 - the intercept and I1-I6- the slope of the straight line,
-εt is the estimated error terms,
-“Y”- the dependent variable (domestic violence) and
-X1-X6 – the independent variables, which influence de dependent variable, such
as: X1- participation rate in education and training (males), X2 – average household
size, X3 – distribution of population (males), X4 – distribution of population by health
status (males), X5 – average number of rooms per person, X6 – alcohol consumption
(15+).
Using Excel – DataAnalysis we obtained the following results (Table).
Table no. 3 – OLS (regression function)
Variable Coefficients Standard Error t Stat P-value Lower 95% Upper 95% Lower 95,0% Upper 95,0%
Intercept 87664,7 77782,0 1,12 0,37 -247004 422333,9 -247004 422333,9

X1 651,4 583,1 1,11 0,38 -1857,7 3160,6 -1857,7 3160,6
X2 4160,4 3688,6 1,12 0,37 -11710,3 20031,3 -11710,3 20031,3
X3 -1349,5 1643,8 -0,82 0,49 -8422,4 5723,3 -8422,4 5723,3
X4 33,4 74,2 0,45 0,69 -286,1 353,07 -286,1 353,07
X5 -15295,7 9987,1 -1,53 0,26 -58266,9 27675,4 -58266,9 27675,4
X6 -1747,1 1702,4 -1,02 0,41 -9072,2 5577,8 -9072,2 5577,8
From the table above we observe, that:
20
Florea N.V., Mihai D.C., 2017.
52
Thus, to increase with a monetary unit, the X1 will get an increase of 651,4
monetary units of “Y”, X2 will get an increase of 4160,4, X3 will get a decrease with
1349,5, X4 will get an increase of 33,4, X5 a decrease of 15295,7, and X6 an increase
of 1747,1. We note that the value of free term (87664,7) is positive and very high,
which allows us to conclude that no other factors could be taken into account and have
an important impact on the evolution of “Y”.
Table no. 4. The values for multiple R and R square
Regression Statistics
Multiple R 0,880916
R Square 0,776014
Adjusted R Square 0,104055
Standard Error 291,4943
Observations 9
Determining R squared, using OLS (least squares) estimation method we obtained

that R - squared has been taking values between 0 and 121. In our case, R squared is
0,77. According to literature in the filed regarding the strength of correlation, our value
for multiple R (0,88) is between (0,7-0,9), being a high and positive correlation.
In the case of Romania, the correlation was perfect and positive, being ”1”22.
Thus, between the analysed variables there is a positive and high relationship.
Excel-Data-Analysis helped us to determine descriptive statistics. All the analysed
variables present a positive mean value. The mean for “y” is higher than the others, but is
normal, being the largest value. The range of variation between maximum and minimum
is quite logical. We observe that the mean and median have very similar value, the ratio
between them being approximately 1. Also, the standard deviation (Std. Dev.) of data
series has small values for all the variables; therefore, it can be considered that the series
is relatively homogeneous (exception making “y”, being logical).
Table no. 5. Descriptive statistics
y x1 x2 x3 x4 x5 x6
Mean 7247,7 15,0 2,6 39,9 23,5 2,0 10,0
Standard Error 102,7 0,1 0,0 0,0 1,1 0,0 0,1
Median 7229,0 15,1 2,6 39,8 23,1 2,0 9,9
Mode #N/A 15,2 2,6 39,8 #N/A 2,0 9,9
Standard Deviation 308,0 0,4 0,0 0,1 3,2 0,0 0,2
Sample Variance 94837,3 0,2 0,0 0,0 10,0 0,0 0,0
Kurtosis -0,8 0,2 0,7 -1,2 -1,3 9,0 4,4
Skewness 0,5 0,0 -1,6 0,8 0,1 -3,0 1,9
Range 881,0 1,5 0,1 0,3 8,6 0,1 0,7
Minimum 6863,0 14,3 2,5 39,8 19,2 1,9 9,8
Maximum 7744,0 15,8 2,6 40,1 27,8 2,0 10,5
Sum 65229,0 135,3 23,2 359,1 211,1 17,9 89,9
21
Wilson E., 2017, p.246; Watson G., Reissner S., 2014, p.371; Webber L., Wallace M., 2011, p.144.
22
Vlădilă L.M., Florea N.V., The costs and the implications of domestic violence. a mathematical
approach, în Suplimentul la Revista Valahia University Law Study din 2019, pp. 604-605.
53
Conference Paper
The results for X2, X5 are negatively skewed (showing a left-skewed distribution)
while for X1, X3, X4 is a positive skewness. The value of kurtosis is between -1,3 and
9 being not at all close to the benchmark for a normal distribution of 3, X6 is
positioned near normality; the others, are bigger (X5 is 9) or lower than the benchmark
(between -1,3 and 0,7).
Table no. 6. Correlation between analysed variables

y x1 x2 x3 x4 x5 x6
Y 1
x1 0,319 1
x2 0,359 -0,402 1
x3 0,661 0,543 0,100 1
x4 0,355 0,587 0,198 0,330 1
x5 -0,457 -0,142 -0,166 -0,381 -0,360 1
x6 0,691 0,140 0,269 0,757 0,215 -0,419 1
Also using Excel-Data-Analysis, are determined the correlations between the

analysed variables.
There are:
- Positive correlations:
o Strong (between X3 and X6 of 0,757, between Y and X6 of 0,691 and
between Y and X3 of 0,661),
o Medium (between X1 and X4 of 0,587, and X1 and X3 of 0,543),
o Weack correlations (between X2 and X3 of 0,1, between X2 and X4 of
0,198)
- Negative correlations:
o Medium (between Y and X5 of -0,457 and between X1 and X2 -0,402),
o Weack (between X1 and X5 of -0,142, and between X2 and X5 of -0,166)
Translating these mathematical correlations into legal and criminological
language, when we analyze the relationship between each independent variable – “X”
and the dependent variable – “Y”, we will notice how and how much each factor (X1-
X6) influences gender violence (Y), referring to the results resulting from Table no. 6.
We thus conclude that gender-based violence in Spain is directly influenced by the
following factors, which means that action on one of them will have direct effects on
the number of cases of domestic violence; so:
- the biggest influence, out of the six variables chosen, on gender violence, is held
alcohol consumption, variable X6, with a rate of 0.691. This means that men who
consume alcohol are much more prone to violence in Spain, compared to Romania,
where this factor was only 0.220 (so three times higher). In this case, the influence of
alcohol is very high, which means that a reduction in alcohol consumption will
implicitly lead to a decrease in cases of domestic violence. This factor is determinant
for our analysis, weighting almost 70% in determining the cases of gender violence.
- the next index that directly influences this scourge is X3, namely the distribution
of the male population, with a rate of 0.661. In other words, the more men there are in
54
an area than the number of women, the higher the level of violence. This conclusion,
specific to the analysis for Spain, was also found in sociological studies, which found
that when the number of male births in a period and in a geographical area is much
higher than the female births, the risk of war, conflict, aggression, and other crimes
increased exponentially. In fact, this was one of the problems reported in cases of pre-
selection of the sex of the fetus, in those areas of Asia in particular, where such a
practice was found, an aspect that we have highlighted in other presentations and
analyzes on this subject.
- the next three indices, X1, X2 and X4, have an average influence, directly
proportional, but not decisive, each separately, on gender violence. However, together,
the influence of these variables can be very large and decisive either in stopping or in
amplifying the phenomenon we are studying.
Starting from its value below the average (X1 - 0.319), we notice that education23
in Spain is not a factor in itself, but it is still a factor of influence; the conclusion is
that, by increasing the level of education of men, gender-based violence will decrease.
The size of the home (X 2 - 0.359) generates an average influence on domestic
violence; therefore, when a couple or a family owns more spacious homes, the cases of
gender-based violence will be reduced, in direct proportion. The explanation may lie in
the fact that having more space to carry out their activities, couple members will feel
that they have met certain primary needs, such as housing, but also others that involve
food, eating together, but in the living room, reading, play and entertainment space,
and others; having met these basic needs, the risk of developing compulsive and
aggressive behaviors will decrease substantially.
The third factor of average influence is the distribution of the male population in
relation to the health of men (X4 - 0.355), which again has an important influence, but
not decisive in itself. Thus, in couples where if the health of the man is good, the cases
of gender violence should be lower.
Analyzing the influence that the reunion of two or even three of the variables X1,
X2 and X4 can have, we discover some interesting conclusions. For example, the
combination of a small dwelling and the presence in the couple of a man with certain
health problems, or the lack of education correlated with a small living space, or with a
precarious state of health, directly determines the presence of cases of gender violence.
If all these factors existed within a couple, namely a low level of education, a man with
certain health problems in the couple and a small living space, then the risk of gender
violence turns from a probability to a certainty, unfortunately.
Interestingly, the number of rooms per person (X5) has an inversely proportional
influence on both gender-based violence and other variables. In other words, the
presence of more rooms in a home, from which each member of the family or couple
can have their own room, will increase the level of education of men, will lead to fewer
homes and a smaller number of men in a home. a certain area, as well as a smaller
number of men with health problems in the area, but also a lower consumption of
alcohol. Therefore, increasing the variable X5, the number of rooms per person, will
decrease gender violence, from all points of view. However, the influence is not
23
https://ec.europa.eu/eurostat/web/education-and-training.
55
Conference Paper
decisive, as its values related to “Y”, but also to the other independent variables does
not exceed 0.5.
Referring to the correlations which can be made between the independent
variables, we will notice that:
- the larger the male population (X3) and the healthier it is (X4), the greater the
number of men involved in the educational act;
- on the other hand, alcohol consumption (X6) increases exponentially as the
number of men in a given area increases (X3);
- however, if the number of rooms per person is small (X5), it turns out that it is
very likely to increase alcohol consumption (X6);
- however, the more men in a geographical area (X3), many of whom are also sick
(X4), this means that there are fewer rooms for them, the living space being, in
principle, smaller.
Conclusions
The realization of the new study on the influencing factors of gender violence in
Spain, enriched our research. On this occasion, I discovered the similarities and
differences between the situation in Romania and in Spain regarding the causes of
domestic and gender violence.
A first conclusion was that in the case of Romania the choice of the eight factors
analyzed by us are the necessary factors, but also sufficient ones that determine the
domestic violence in our social space. Although alcohol is one of them, it is not among
the determining causes of domestic violence in Romania, but it is three times more
influential in Spain. In both cases we found that education is a positive factor that
inhibits aggressive behaviors, and when it is correlated with a larger living space, the
reduction of domestic or gender violence is obvious.
For Spain, however, it is interesting that the variable number of men, associated
with healthy men, increases the number of those with higher education, and thus
decreases the number of cases of gender violence, while associated with the number of
sick men, increases the risk of they consume alcohol and generate more cases of
gender-based violence, given the conditions of a smaller living space.
We thus notice a series of determinisms between the factors we choose, which
when correlated with each other, become real causes of gender violence (more men in a
geographical area, who are sick, who have a small living space, do not have higher
education and alcohol consumption).
On the other hand, in the case of Spain, we managed to discover statistics and do
the analysis for 6 influencing factors, finding that all of them determine an influence of
0.776 (R Square) – which according to our analysis means that they could also be
included, in other words, these are not the only ones behind the causality of gender-
based violence.
However, can we ask ourselves which of these factors can we take to reduce
gender-based violence? The most handy would be education It is not the easiest thing
to do, but it is still a factor that can influence and decrease the number of men who
56
consume alcohol, those who are and remain healthy, as well as those who have enough
resources to afford a space. more generous housing.
Bibliography:
A. Books:
1. Carline A., Easteal P., Shades of Grey - Domestic and Sexual Violence Against Women,
Routledge, 2014;
2. City Soul, Help stop violence against women, Jacana Media, 2006;
3. Florea, N.V.; Mihai, D.C., Predicting employees’evaluation performance using
simulation and mathematical modeling, JOSA, 1st Volume (38), 2017;
4. Renzetti C.M., Bergen R.K., Violence against women, Rowman&Littlefield, 2005;
5. Vladila L.M., Florea N.V., The costs and the implications of domestic violence. A
mathematical approach, Conference Paper, Valahia University Law Study, 2019;
6. Wilson E., School-based researcg: a guide for education students, Sage, 2017;
7. Watson G., Reissner S., Developing skills for business leadership, Kogan Page Pub.,
2014;
8. Webber L., Wallace M., Quality control for dummies, JohnWiley&Sons, 2011.
B Virtual sources:
1. https://www.unodc.org/documents/data-and analysis/covid/Violence_against_women_
24Nov.pdf - Research brief: What crime and helpline data say about the impact of the
COVID-19 pandemic on reported violence against women and girls
2. UNODC, Global Study on Homicide 2019: Gender-related Killing of Women and Girls
(Vienna, 2009)
3. UNODC, “Research Brief: Effect of the COVID-19 pandemic and related restrictions
on homicide and property crime” (forthcoming)
4. https://www.bbc.com/news/world-52063755 - “Coronavirus: I’m in lockdown with my
abuser”, accessed 3rd April 2020
5. https://missionlocal.org/2020/03/for-victims-of-domestic-violence-sheltering-in-place-
can-mean-more-abuse/ - “Domestic violence cases escalating quicker in time of COVID-
19”, accessed 3rd April 2020
6. https://www.theguardian.com/society/2020/mar/28/lockdowns-world-rise-domestic-
violence - “Lockdowns around the world bring rise in domestic violence” accessed on
3rd April 2020
7. https://www.euronews.com/2020/03/28/domestic-violence-cases-jump-30-during-
lockdown-in-france - “Domestic violence cases jump 30% during lockdown in France”,
accessed on 3rd April 2020
8. http://www.diario21.tv/notix2/movil2/?seccion=desarrollo_nota&id_nota=132124) –
“During quarantine, calls to 144 for gender violence increased by 25%”, accessed 2nd
April 2020
9. https://www.euroweeklynews.com/2020/01/02/2019-worst-for-gender-violence-
murders-in-spain-since-2015/ - number of women killed by former partners in Spain
(2015-2019)
10. https://www.ine.es/dyngs/INEbase/en/operacion.htm?c=Estadistica_C&cid=125473617
6866&menu=ultiDatos&idp=1254735573206 - number of victims of domestic violence
in Spain
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11. https://ec.europa.eu/eurostat/databrowser/view/trng_lfs_01/default/table?lang=en-
participation rate in education and training (males)
12. https://ec.europa.eu/eurostat/databrowser/view/ilc_lvph01/default/table?lang=en-
average household size
13. https://ec.europa.eu/eurostat/databrowser/view/ILC_LVPS01__custom_301186/default
/table?lang=en= distribution of population (males)
14. https://ec.europa.eu/eurostat/databrowser/view/ILC_LVHL01__custom_301203/default
/table?lang=en= distribution of population by health status (males)
15. https://ec.europa.eu/eurostat/databrowser/view/ILC_LVHO03__custom_301237/defaul
t/table?lang=en- average number of rooms per person
16. https://www.euro.who.int/__data/assets/pdf_file/0010/402202/ACHP_FS_Spain.pdf=
alcohol consumption (15+)
17. https://anes.gov.ro/cresterea-numarului-de-situatii-de-violenta-domestica-de-la-
inceputul-anului-2020-reprezinta-un-semnal-de-alarma-asupra-recrudescentei-
fenomenului-violentei-intra-familiale-din-tara-noastra-si-asupra/
18. https://www.dw.com/ro/acas%C4%83-e-un-loc-periculos-sau-despre-capcana-
violen%C8%9Bei-domestice/a-55718891
19. https://romania.europalibera.org/a/violen%C8%9Ba-domestic%C4%83-4-856-de-
ordine-de-protec%C5%A3ie-provizorii-%C3%AEn-7-luni-96-dintre-autori-sunt-
b%C4%83rba%C8%9Bi/30834738.html
58
INNOVATIVE ELEMENTS IN THE AREA

OF DOMESTIC VIOLENCE IN AGREEMENT
WITH THE COMMUNITARIAN REGULATIONS
Elise-Nicoleta VÂLCU*
Abstract: The main objective of the European Union is to develop and maintain an area of
freedom, security and justice1. In accordance with Art 82 Para 1 of the Treaty on the
Functioning of the European Union (TFEU), the legal cooperation within the Union shall be
based on the principle of mutual recognition of the court decisions and judicial decisions.
Violence of any kind must be combated and limited by a coherent and harmonized national
legislation to the union legislation doubled by an efficient judicial system. The protection of the
victim of domestic violence throughout Romania is made by the application of the Law No
217/2003 amended and updated2, respectively by taking by the national courts some protection
measures for the benefit of the victim, instituting against the family member who represents a
public danger interdictions and restrictions. Problems arise when the victim-protected person
leaves the territory of Romania and will settle on the territory of another member state of the
European Union. In such situation, it becomes operational the communitarian legislation,
namely the Directive 2011/99/EU of the European Parliament and of the Council of 13
December 2011 on the European protection order, namely the norm of transposition into
national law, Law no. 151/2016 on the European protection order.
Keywords: victim, protected person, family member, person representing a public danger,
abuse, protection order, European protection order.
Introduction
For a better application by corroboration of the above-mentioned texts, we

mention the following situation: in a criminal case aiming the offences stated by Art
199 of the Criminal Code, during trial, at the request of the victim, the court that rules
upon the criminal case shall apply a protection measure against the defendant – the
person representing a public danger, imposing a series of interdictions (the Law No
217/2003 is applicable). Insofar as the criminal case acquires a cross-border character,
* Associate Professor PhD, Faculty of Law and Administrative Sciences, University of Pitesti, Pitesti
(Romania), elisevalcu@yahoo.com.
1
I.N. Militaru, Dreptul Uniunii Europene, Cronologie. Izvoare. Principii.Institutii. Piata interna a Uninuii
Europene. Libertatile fundamentale, 3rd Edition revised and amended, Universul Juridic Publ.-house,
Bucharest, 2017.
2
Law No 217/2003 on the prevention and combat of domestic violence, republished in the Official
Gazette No 948/15 October 2020, as effect of the modifications inserted by Law No 160/2015, Law No
272/2015, Law No 351/2015, Law No 151/2016 on the European protection order, Law No 35/2017,
Law No 174/2018 on the provisional protection order, Law No 212/2019 on the modification of Art 30
Para 1 of the Law No 217/2003 for the prevention and combat of domestic violence; Law No 106/2020
on the modification and amendment of the Law No 217/2003; Law No 183/2020 for the modification
and amendment of the Law No 217/2003.
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by leaving the Romanian territory by the victim and establishing it on the territory of
another member state of the European Union, the court that judges the criminal case
and has taken a protection measure, being notified, will order and a European
protection order (Romania being the issuing state according to Law 151/2016).
According to Art 2 of the Law No 217/2003, domestic violence3 represents “any
physical or verbal action deliberately perpetrated by a family member against another
member of the same family that causes a physical, psychological, sexual suffering or a
material prejudice, or between spouses or ex-spouses, as well as between current or ex-
partners, regardless if the perpetrator is currently residing or has resided together with
the victim”.
The definition established by national law includes both actions and inactions,
omissions, of a violent nature, having an intentional nature. Harmful acts committed
through guilt, regardless of their degree of harm to the victim, do not fall within the
scope of domestic violence. The intention can be both direct and indirect4. Domestic
violence includes the constraint of the victim in performing his/her fundamental rights,
as well as the civil and economic ones, as well as to perform actions related to family
life, causing or may cause moral or material harm to the victim5.
In the meaning of Art 5 Para 1, family member refers to:
a) Ascendants and descendants, brothers or sisters, their spouses and children, as
well as the persons who became relatives by adoption;
b) The spouse and/or ex-spouse, brothers, parents and children from other
relations of the spouse or ex-spouse;
c) The persons who have established relations similar to that between spouses or
between parents and children, current or ex-partners, regardless if they have resided or
not with the aggressor, ascendants and descendants of the partner, as well as their
brothers and sisters;
d) The guardian or other person who exercises de facto or de jure the rights
towards the person of the child;
e) The legal representative or other person caring for the person with mental
illness, intellectual disability or physical disability, except for those who perform these
duties in the exercise of their profession.
Art 5 Para 2 of the framework-law defines the victim as “the natural person
subjected to one or multiple forms of violence stated by Art 4, including children
witnessing these forms of violence”6. Legal persons cannot be victims, nor perpetrators
3
According to the data from Bucharest Tribunal, during April 1 – August 20, 2020, the protection order
requests doubled compared to the same period last year, given that the data provided by the ANAIS
Association establish that during the mentioned period the police intervened in over 4000 cases per
month and 1000 of them were at imminent risk. Extensive United Nations research (Global Study on
Homicide. Gender-related killing of women and girls, 2019) shows that in Romania in 2019, 20.000
women were hit in their houses and 44 of them died as a result of the beatings – see www.dw.com
4
A. Iacuba, E. Diaconu, Combaterea violenţei domestice. Legea nr. 217/2003 privind prevenirea şi
combaterea violenţei domestice şi instrumente europene privind ordinul de protecţie. Comentarii şi
explicaţii, C.H. Beck Publ.-house, Bucharest, 2019, pp. 13-14.
5
E. N. Vâlcu, “Theoretical approaches on the necessity of elaborating protection policies on gender-
based violence both in European Union and Romania in 2011” in AGORA International Journal of
Juridical Science No.2(2011), vol. 5, p. 262.
6
Art 5 of the Law No 217/2003 republished.
60
or aggressors. The person who represents a public danger is the person who exercises
against a family member an act of violent nature, among those provided by Art 4 of
Law no. 217/2003, and the “protection order” is the judicial instrument available to the
victim or potential victim of domestic violence, by which it may request the court to
take safety measures to protect his physical and mental integrity. This procedure is
available without any unjustified financial burdens upon the victim, precisely for an
immediate protection7.
The premise of the issuance of a protection order consists in the commission
against the victim of certain acts of violence of any nature generating a state of danger
for the physical or psychical integrity of the victim. In this meaning, the danger in
which the victim is put shall be characterized as being actual, real and life-threatening8.
1. European protection order in the meaning of the Directive 2011/99/EU,

namely of the internal norm for transposition, the Law No 151/2016 on
the European protection order and for the modification and
amendment of some normative acts
The Stockholm Program called on the Commission and the Member States to
examine ways to improve legislation and practical measures to support the protection
of victims, who should benefit from special protection in the Union9.
The analyzed directive has as object the protection measures especially created to
protect a person against a criminal action committed by another person, including in the
area of domestic violence, which at any time and in every way, may endanger the
person’s life, physical, psychological and sexual integrity, by insuring his/her protection
in any of the Member States in which the person relocated or where is about to relocate.
The European Directive has as object the protection of all victims, not only of the victims
of gender-based violence, by considering the specificity of each type of offence.
Both the communitarian directive, as well as the transposition norm define the
protection measure as being “a decision in criminal matters adopted in the issuing State
in accordance with its national law and procedures by which one or more of the
prohibitions or restrictions are imposed on a person causing danger in order to protect a
7
E.-A. Iancu (Nechita), The importance of identity in the forensic identification process in Personal
safety and social capital construction / Siguranţa persoanei şi construirea capitalului social, bilingv
edition, Universul Juridic, Bucureşti, 2019, pp. 634-639.
8
E.-A. Iancu (Nechita), op.cit., p. 634.
9
I. Rusu, “Issuance and transmission of the European protection order by the romanian judicial
authorities. some critical opinions. de lege ferenda proposals” in Revista Juridică, Volume 6, Issue 2,
December 2016; I.N. Militaru, Dreptul Uniunii Europene, Cronologie. Izvoare. Principii. Institutii. 2nd
Edition, revised and amended, Universul Juridic Publ.-house, Bucharest, 2011; C. Mătuşescu,
Protección transfronteriza de las víctimas de la violencia doméstica a nivel de la Unión Europea:
preocupaciones europeas y obstáculos nacionales, in Martha Elisa Monsalve Cuéllar (coord.),
”Género y no discriminación. Analisis transversal e interdisciplinar”, Alderabán Publ.-house, Spain,
2019, pp. 723-744.
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Conference Paper
protected person against a criminal act which may endanger his life, physical or
psychological integrity, dignity, personal liberty or sexual integrity”10.
The protection measures which may be recognized by a European protection order
and which are incumbent on a person who is a danger are strictly laid down in Art 5 of
the Directive, namely:
- a prohibition from entering certain localities, places or defined areas where the
protected person resides or visits;
- a prohibition or regulation of contact, in any form, with the protected person,
including by phone, electronic or ordinary mail, fax or any other means;
- a prohibition or regulation on approaching the protected person closer than a
prescribed distance.
- the quoted measures protect the victim and his/her family and this order cannot
be granted when it comes to the social reintegration of the person who poses a danger
or when the protection of a witness is necessary11.
The protection measures justifying the issuance of a European protection order
shall have a criminal nature. Also, the protection measures which may lead to the
issuance of the European protection order may be found in a criminal decision for
conviction, in a conclusion of establishing a judicial control, in a decision to postpone
the penalty or in a decision for probation, to the extent to which their specific content
refers to the establishment of prohibitions or restrictions of those mentioned by the
directive12.
The natural person benefiting from the protection resulting from a protection
measure adopted by the issuing State is referred to in the Directive as “protected
person”13. We thus ascertain that the victim of domestic violence requesting protection
and subsequently a European protection order is referred to as the “protected person”.
In exchange, the abuser of domestic violence is referred to, according to the special
legislation, as the “person representing a public danger”.
The Romanian legislator, by restating the above-mentioned provisions inserted in
the framework-directive, by Art 2 of the Law No 151/2016, states two conditions
which must be cumulatively met by the protected person, victim of domestic violence,
for the issuance of a European protection order, namely:
- the protected person resides or shall reside in another Member State of the
European Union, which is required the recognition and performance of the European
protection order;
- the protected person has the status of injured person in a criminal trial in
progress or in which a final decision has been handed down for conviction or postpone
the application of the sentence14.
10
Art 2 Para 2 of the Directive 2011/99/EU, Art 1 Let b) of the Law No 151/2016.
11
L. M. Vlădilă, “Directive 2011/99/EU of the European Parliament and of the Council on the European
protection order” in Analele Facultăţii de Ştiinţe Juridice, Valahia University of Târgoviste, 2016.
12
A. Iacuba, E.Diaconu, op. cit., 2019, pp. 249-250.
13
Art 2 Para 2 of the Directive 2011/99/EU.
14
E. N. Vâlcu, Introducere in dreptul material al Uniunii Europene, University of Piteşti Press, 2016, p.
69.
62
The communitarian directive states that the European protection order shall be
issued only upon the request of the protected person, which may be addressed either to
the competent authority of the issuing state or to that of the executing state, this latter
authority having the obligation to redirect it to the authority of the issuing state.
The Romanian legislator, in Art 3 of the Law No 151/2016, identifies four
situations: a) Romania is the issuing state; b) Romania is the executing state; c) a final
judgment was given in the case in which the protection measure was issued on the
basis of which the European protection order was issued; d) it was ordered to postpone
the application of the punishment in the case in which the protection measure on the
basis of which the European protection order was issued.
Specifically, when Romania is the issuing state, the competent authority for
issuing the European protection order is the judicial body on whose agenda is the case
in which the protection measure was ordered on the basis of which the European
protection order is requested.
If Romanian is an executing state, the competent authority to recognize the
European protection order is the tribunal in whose circumscription the protected person
resides or shall reside.
The Romanian legislator has identified a third situation, according to which, if in
the case in which the protection measure was ordered on the basis of which the
issuance of the European protection order is requested, a final conviction has been
given, the competence regarding the issuance of the European protection order belongs
to the judge delegated with execution, according to Art 554 of Law No 135/2010 on
the Code of Criminal Procedure, as subsequently amended and supplemented.
A fourth situation is also noted, respectively, if in the case in which the protection
measure was ordered on the basis of which the European protection order is requested,
the application of the sentence was postponed, the court has jurisdiction as the court of
first instance postponed the application of the sentence15.
Art 8 of the transposition norm states that “the European protection order shall be
issued for the period in which the protected person resides, shall reside, established or
shall establish the domicile or residence in another Member State of the European
Union, without exceeding the duration for which the measure grounding its issuance
was ordered”.
1.1. The procedure for the European protection order

when Romania is an issuing state
When Romania is an issuing state, the request for a European protection order
shall be submitted by the protected person, in person or by representative, to the
competent judicial organ16.
If the protection order is issued, as the case may be, by the court, the judge of the
preliminary chamber, the judge for rights and freedoms or the judge delegated with the
execution or the issuance of the European protection order shall rule by conclusion.
15
E. N. Vâlcu, op. cit., p. 71-72.
16
A. Iacuba, E.Diaconu, op. cit., 2019, p. 73-74.
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The only case in which the prosecutor issues by ordinance a European protection order
is that in which the protection measures are ordered within the measure of judicial
control or judicial control on bail by the prosecutor during the criminal investigation17.
The reasoning of the conclusion or of the ordinance is mandatory. The conclusion
or ordinance is not subject to an appeal and shall be communicated to the protected
person and the person representing a danger. In exchange, the conclusion or ordinance
rejecting the request for an order is subjected to appeal within 3 days from
communication. The appeal shall be solved by the superior court or, where appropriate,
by the judge for rights and freedoms or by the preliminary chamber from the superior
court or by the hierarchically superior prosecutor18.
The transposition norm states in Art 9 that, after issuance, the European protection
order is sent directly by the issuance organ, by any safe mean which leaves a paper
trail, to the competent authority from the executing state to allow the competent
authority from the executing state to establish its authenticity. All official
communications shall be made directly between the respective authorities. If the
issuing judicial authority does not have any information regarding the foreign authority
competent with the execution of the European protection order, its identification shall
be made using the contact points from the European Judicial Network, from the
national member of Eurojust or from the Eurojust National Coordination System.
The European protection order can be extended, modified or revoked only for the
cases and conditions are expressly and limited stated by the transposition norm and
which are related to the modification or termination of the protection measure that was
the basis for issuing the order.
Thus, “the European protection order shall be revoked if the protection measure
that was the basis of its issuance ceases or is revoked. If the protection order that was
the basis for the issuance of the European protection order is replaced by another
protection measure with a different content, the competent authority shall issue another
European protection order. The European protection order shall be maintained if the
protection measure that was the basis for it shall be replaced by another measure with
the same content. The European protection order shall be extended if the measure that
was the basis of its issuance is extended”.
If subsequent to the recognition and execution of a European protection order, the
protection measure is included is included in a court decision regarding a probation
measure or alternative sanction, and the court decision has been recognized and
executed in another state than the executing one, and the supervising or issuing state
has taken subsequent decisions affecting the obligations stated by the protection
measure, the European protection order may be revoked, maintained or extended or a
new protection order may be issued”19.
According to Art 11 of the internal norm, “the judicial body on whose agenda is
the case in respect of which the European protection order has been issued, other than
the issuing judicial body, is obliged, shall immediately inform, by any reliable means
17
A. Iacuba, E.Diaconu, op. cit., 2019, p. 253.
18
Art 6 Para 2-3 of the Law No 151/2016.
19
Art 10 of the Law No 151/2016.
64
which leave a written record, the competent authority of the executing State of its
competence to receive any information related to the execution of the European
protection order”.
2. The framework-norm and the main legislative modifications

in the area of domestic violence in Romania
The fight against domestic violence cannot be effective only through the attitude
of the victim. This must be strengthened with the support of the states because this type
of violence has negative psychological effects on the victim, creating a state of fear and
inferiority in relation to the aggressor.
In this context, at the level of the European Union the awareness of the need to
adopt measures to combat domestic violence has been materialized, especially through
the Directive 2012/29/EU establishing minimum standards on the rights, support and
protection of victims of crime, through the Directive 2011/99/EU on the European
protection order and through the Regulation No 606/2013 on mutual recognition of
protection measures in civil matters.
At national level, the defining law was Law 217/2003 on preventing and
combating domestic violence, consolidated by Law No 174 of July 13, 2018 on
amending and supplementing Law No 217/2003 for the prevention and combating of
domestic violence, which, by introducing in the Romanian legislation the provisional
protection order, followed by the adoption of Law 183/2020 by which the punishment
limits for violating the protection order were modified, the norm being meant to
discourage non-compliance with the judicial measure.
2.1. The provisional protection order inserted in the framework-regulation

by Law No 174 of July 13, 2018
When it is established that there is an imminent risk that the life, physical integrity
or liberty of a person may be endangered by an act of domestic violence, the
provisional protection order shall be issued in order to reduce this risk20.
The main substantive requirement for the issuance of the provisional protection
order is the existence of the eminent risk, which will be assessed by the police officer
issuing the order on a case-by-case basis, based on the assessment of the facts and
evidence obtained. verification of the notification regarding domestic violence, either
under the conditions of the Code of Criminal Procedure, in the situation where the act
of domestic violence is investigated as a crime.
In order to establish the existence of the eminent risk, the notified police officers
will assess the factual situation based on the risk assessment form, so that, on the one
hand, the victim's answers will be taken into account, and on the other hand, the
findings of the police. In order for the act to be classified as having an imminent risk,
the victim's answers must exceed a minimum threshold of “yes” answers. If the act is
20
Art 28 Para 1 of the Law No 217/2003 republished.
65
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classified as having an imminent risk, then the police officer will proceed to issue the
provisional protection order21.
If, after assessing the facts, it is found that the conditions for issuing the
provisional protection order are not met, the police officer has the obligation to inform
the persons who claim to be victims of domestic violence about the possibility of
making a request for a protection order, thus addressing the court. The issuance of the
provisional protection order does not preclude the taking of a precautionary measure22.
If the substantive requirements provided by law are met, the police officer
proceeds to issue the provisional protection order, which will be communicated
immediately to the aggressor and the victim. The original of the provisional protection
order shall be recorded in the records of the police unit of the police officer who
ordered the issuance of the order.
The provisional protection order is characterized by two main features, namely
that it is urgent and exceptional in comparison with the protection order of common
law, in that an express, written or verbal request of the victim is not required for the
issuance of the provisional protection order, being mandatorily issued ex officio.
Given the nature of the notification of the incident of domestic violence, the
competence belongs to the territorial territorial public order structures, either to the
police officers within the police units to whom the notifications regarding the acts of
domestic violence were addressed, or to those who were notified ex officio.
Police officers have the right to obtain evidence by the following means, to verify
allegations of domestic violence, to find out the truth and to resolve the complaint fairly:
a) “ascertaining through one’s own senses and recording those ascertained in a
document or recording those ascertained by technical means;
b) consulting the databases to which they have access according to their duties
and recording those found in a document;
c) the statements of persons involved in acts of domestic violence, of persons
who have witnessed acts of domestic violence and of other persons who may disclose
information about persons involved in acts of domestic violence;
d) video or audio recordings or photographs, regardless of their source;
e) documents, including those of the nature of messages or posts in the electronic
and/or mobile telephony environment”.
“In order to verify complaints about domestic violence and for the purpose of
obtaining evidence on the issues that are the subject of the notification, police officers
have the right to enter the home or residence of any natural person without their
consent, as well as the premises of any legal person without the consent of the
representative, if the notification expressly indicates that the acts of domestic violence
take place or have taken place in the respective spaces”, and, at the same time, “they
can use the force and the means provided, in an adequate and proportionate way, to in
the spaces provided above”23.
21
A. Iacuba, E.Diaconu, op. cit., 2019, pp. 73-74.
22
23
66
For the purpose of diminishing the imminent risk ascertained by the provisional
protection order shall be ordered, for a period of 5 days, one or more protection
measures:
a) “the temporary eviction of the aggressor from the common residence,
regardless if he is the owner of the property right;
b) reintegration of the victim and, as the case may be, of the children into the
common home;
c) obliging the aggressor to maintain a certain minimum distance from the
victim, from his family members, or from the residence, place of work or educational
unit of the protected person;
d) forcing the aggressor to permanently wear an electronic surveillance system;
e) forcing the aggressor to hand over the weapons in his possession to the
police”24.
The protection order shall be issued for a duration of 5 days, without the
possibility of being individualized through the diminution or extension of this period.
The period of 5 days is calculated per hour, respectively has a duration of 120 hours,
and begins to run from the moment the order was issued.
As for its effects, the order will be opposable to the aggressor only from the
moment it was actually handed or communicated to him, although the order becomes
enforceable from the moment of its issuance25.
In order to be involved in the criminal liability of his aggressor, the order must be
communicated to him. The refusal to receive the order or the refusal to sign or leave
the place of issue by the aggressor is equivalent to a legal communication or
acquaintance about the existence and content of the order.
The provisional protection order must be submitted by the police unit to which the
police officer who issued it belongs, to the prosecutor’s office attached to the
competent court in whose territorial area it was issued, within 24 hours from the date of
issue, for confirmation26.
The prosecutor of the competent prosecutor's office, assesses, within 48 hours
from the issuance of the order, the need for protection measures ordered following, as
the case may be, either to confirm the provisional order by administrative resolution or
order the cessation of measures from which they will cease27.
The provisional protection order may be challenged within 48 hours from the
communication to the court in whose territorial area it was issued. The parties must be
legally summoned to the appellate court. It shall be resolved as a matter of urgency, in
the council chamber, but not later than the date on which the period for which the
provisional protection order was issued expires, the participation of the prosecutor
being mandatory. The decision resolving the appeal is binding28.
24
25
26
27
A. Iacuba, E.Diaconu, op. cit., 2019, p. 103.
28
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2.2. The modification of Art 30 Para 1 of the framework-law

inserted by Law No 212/2019
Following the amendment of the text, “the decision by which the request for
issuing the protection order is resolved is subject only to appeal, within 3 days from the
pronouncement, if the parties were summoned, and from the communication, if the
parties were not summoned”.
2.3. Legislative modifications brought to the framework-regulation

by Law no 106/2020
Law No 106/2020 has modified a number of 5 articles, of which we mention:
a) Art 3 has been modified by a new definition of the concept of “domestic
violence” as “any inaction or intentional action of physical, sexual, psychological,
economic, social, spiritual or cyber violence that occurs in the family or domestic
environment, or between spouses or ex-spouses, as well as between current or ex-
partners, regardless of whether the aggressor lives or has lived with the victim”;
b) Art 4 Para 1 introduces a new Let h) which identifies a new form of domestic
violence perpetrated by computer, named “cyber-violence” that can be adapted in
various ways, “online harassment, online threats, non-consensual publication of
information and private graphic content…with the purpose of embarrassing,
humiliating, scare, threaten or silence the victim”.
2.4. Legislative modifications brought to the framework-norm

by the Law No 183/2020
a) The increase of violence during the pandemic has led to the modification of the
legislation and the adoption of the Law No 183/2020 for the aggressors who violate the
protection orders. Specifically, Art 32 of the framework-law on the sanctioning regime
has been modified in the meaning that Art 1 “the violation by the person against whom a
protection order has been issued of any of the measures stated by Art 23 Para 1, 3-4 Let
a)-b) and stated by a protection order represent an offence and shall be punished with
imprisonment from 6 months to 5 years”; Para 2 “the violation by the person against
whom a provisional protection order has been issued of any of the measures stated by Art
224 Para 1 and stated by a protection order represent an offence and shall be punished
with imprisonment from 6 months to 5 years. Until the adaptation of the above-
mentioned law, respectively August 1, 2020, an aggressor who violates the protection
order could receive a sentence of between one month and one-year imprisonment”.
b) Regarding the legal aid of the victim, the modifying text strengthens this
procedural guarantee. Thus, Art 27 Para 2 states that “Legal aid of the person
requesting the protection order is mandatory”.
2.5. Law No 233/2020 for the modification of Art 199 Para 2 of the Law No
286/2009 on the Criminal Code, published in the Official Gazette No 1036/5
November 2020 has removed the phrase “the reconciliation of the parties removes the
68
criminal liability”, thus the new text has the following content “For the offences stated
by Art 193 and 196 committed against a family member, the criminal action shall be
initiated ex officio”.
However, we do not believe that the substantive issue has been resolved given the
reality in Romania, in the sense that too few cases are triggered upon ex officio
notification by the competent bodies. We consider that too little has been done in the
conditions in which, further in cases of domestic violence triggered by a prior
complaint, it is possible to withdraw the complaint and implicitly exonerate the
aggressor/person who represents a public danger/defendant/convict.
2.6. Innovative regulations on domestic violence brought by the Law

on monitoring with electronic bracelets in judicial and enforcement
criminal proceedings
On May 21, 2021, the law regulating the electronic monitoring of suspects placed
under house arrest or under judicial control of those sentenced to suspended sentences
under supervision came into force.
The mobile devices will be mounted, non-removable, on the ankle and, only if it is
not physically possible or contraindicated medically, they will be mounted on the arm
of the supervised person. Fixed devices are used in the building that the supervised
person is not allowed to leave or is not allowed to approach. At the same time, the
mobile device will be made available to the protected person, who can wear it attached
to or on his body.
The following categories of alerts shall be sent by the electronic bracelet:
- Property exit alert - it will be generated as a result of moving outside the
building where the measure of house arrest or judicial control is being carried out;
- Perimeter exit alert – it will be generated as a result of moving outside the
itinerary or territorial limit where the measure of house arrest or judicial control is
being carried out;
- Proximity alert – this will be generated as a result of the presence of the
electronic surveillance device worn by the supervised person, in the vicinity of the
electronic surveillance device owned by the protected person (victim of domestic
violence, including family members), below the predetermined distance29.
Conclusion(s)
Domestic violence, a component of violence against women, is a violation of

women’s fundamental rights30 to dignity, gender equality, etc. Its impact is felt not
only by those women who are themselves victims of violence, but also by families,
29
https://webapp.mai.gov.ro/frontend/documente_transparenta/222_1563289097_EM_Lege_monitorizar
e%20electronica_08072019_negru.pdf
30
I. N. Militaru, Protection of Fundamental Rights in the European Union, International Conference,
“Perspectives of Business law in the Third Millenium”, 8 November 2019, 9 th Edition, Bucharest,
Section 3. European Union Law. International Law, Volume 8, 2nd Edition, 2019.
69
Conference Paper
friends and the entire society. The relevant Union legislation, as well as the
transposition legislation mentioned during this presentation, are intended to monitor
such acts, to combat them and, if necessary, to sanction them. We consider that the
European Union, within the limits of its area of competence could do more in this area,
as for instance Eurostat could create and manage a database common to all Member
States, in other words, a harmonization of state policies, using good practices from
some Member States. Only by knowing the extent of this phenomenon can we see to
what extent the EU legislation is appropriate, to what extent Member States have taken
and applied legislative measures in accordance with the EU interest.
Bibliography:
1. L.-A. Iancu (Nechita), The importance of identity in the forensic identification process in
Personal safety and social capital construction / Siguranţa persoanei şi construirea
capitalului social, bilingv edition, Universul Juridic, Publ.-house, Bucharest, 2019.
2. A. Iacuba, E. Diaconu, Combaterea violenţei domestice. Legea nr. 217/2003 privind
prevenirea şi combaterea violenţei domestice şi instrumente europene privind ordinul de
protecţie. Comentarii şi explicaţii, C.H. Beck Publ.-house, Bucharest, 2019.
3. C. Mătuşescu, Protección transfronteriza de las víctimas de la violencia doméstica a
nivel de la Unión Europea: preocupaciones europeas y obstáculos nacionales, in Martha
Elisa Monsalve Cuéllar (coord.), ”Género y no discriminación. Analisis transversal e
interdisciplinar”, Ed. Alderabán, Spain, 2019.
4. I.N. Militaru, Protection of Fundamental Rights in the European Union, International
Conference, “Perspectives of Business law in the Third Millenium”, 8 November 2019,
9th Edition, Bucharest, Section 3. European Union Law. International Law, Volume 8,
2nd Edition, 2019.
5. I.N. Militaru, Dreptul Uniunii Europene, Cronologie. Izvoare. Principii.Institutii. Piata
interna a Uninuii Europene. Libertatile fundamentale, 3rd Edition revised and amended,
Universul Juridic Publ.-house, Bucharest, 2017
6. I.N. Militaru, Dreptul Uniunii Europene, Cronologie. Izvoare. Principii. Institutii. 2nd
Edition, revised and amended, Universul Juridic Publ.-house, Bucharest, 2011.
7. L. M. Vlădilă – “Directive 2011/99/EU of the European Parliament and of the Council
on the European protection order” in Analele Facultăţii de Ştiinţe Juridice, Valahia
University of Târgovişte, 2016.
8. Law No 217/2003 on the prevention and combat of domestic violence
9. Directive 2011/99/EU on the European protection order
10. Law No 151/2016 on the European protection order, as well as for the modification and
amendment of normative acts
11. Law No 233/2020 for the modification of Art 199 Para 2 of the Law No 286/2009 on
the Criminal Code
12. Law No 183/2020 on the modification and amendment of the Law No 217/2003 for the
prevention and combat of domestic violence
13. Law No 174/2018 on the provisional protection order
14. Law 212/2019 on the modification of Art 20 Para 1 of the Law No 217/2003 for the
prevention and combat of domestic violence
70
PREPARATION OF MARITAL STATUS DOCUMENTS

OF ROMANIAN CITIZENS ABROAD
Ramona DUMINICĂ*
Andreea DRĂGHICI**
Abstract: The elements forming the marital status of a natural person may have as source
either a legal or jurisdictional document, or a stricto sensu legal action. The main legal acts and
facts forming the civil status of a person are recorded in documents called marital status
documents. These are drawn up in the interest of the state and of the person and have as objective
the knowledge of the number and structure of the population, of the demographic situation, as well
as the defense of the fundamental rights and freedoms of the citizens. These documents are
recorded in the civil status registers. The preparation of marital status documents is the main
category of records and involves the registration in the civil status registers of birth, marriage and
death. Based on these general considerations, this article details the procedure for drawing up
marital status documents of Romanian citizens abroad in the context in which studies have shown
that in recent years over a quarter of a million Romanians have migrated to other countries to
meet certain needs. financial, professional or family needs.
Keywords: marital status, Romanian citizen, preparation of marital status documents.
1. Civil status documents. Notion and regulation
The profound transformations undergone by the Romanian society in the post-

revolutionary period, the integration in the European Union, the assumption of the
obligation of legislative harmonization, the existence at European level of the desire to
achieve a European Civil Code, as well as the impossibility of the 1864 code to
regulate the new social, cultural, technical-scientific and economic values arising from
the natural evolution of social realities in our country are just a few considerations that
imposed the need to develop a new Civil Code. Therefore, in 2009, after the long
efforts of the Romanian lawyers to modernize the civil law, the Romanian Parliament
adopted by Law No 287/2009 on the new Civil Code, in force since October 1, 2011.
This code was aimed to be a modern instrument for the regulation of the fundamental
aspects of the individual and social existence comprising all provisions regarding
persons, family or commercial relations and even relations of private international law,
as one can deduce from the statement of reasons, from the systematization of the area
and from the solutions launched, concept promoted also by other European states such
as France, Switzerland, Holland or Italy1.
* Lect. univ. dr., Faculty of Economics and Law, University of Piteşti; e-mail:
duminica.ramona@gmail.com.
** Conf.univ.dr., Faculty of Economics and Law, University of Piteşti; e-mail: andidraghici@yahoo.com.
1
R. Duminică, D. Iancu, General considerations regarding the principal liability for the agent actions in
the light of the New Civil Code, in „Annales Universitatis Apulensis”, Series Jurisprudentia nr. 14/2011,
Alba-Iulia, 2011, pp. 86-91.
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The new Civil Code dedicates to marital status its Section 3 (Art 98-103) titled
“Marital Status Documents” of Chapter 2 “Identification of the natural person”, Title II
“Natural person”, Part I “About persons”. This section regulates the marital status test,
the cancellation, completion, modification, rectification of the marital status documents
and the registration of the mentions on the civil status document. Thus, given the content
of the Civil Code, the choice by the legislator of the name “Marital Status Documents”
for the section dedicated to the attribute of identification – the marital status was
criticized, showing that “being part of Chapter III Identification of the natural person, the
section in question should have been call “marital status” and not “marital status
documents”, which are just the main means of proof with which to prove marital status.
The choice for this title for Section 3 is also a proof of inconsistency, since the previous
two sections of the same chapter are called, as it is normal, “Name” and “Domicile”,
which are the other two means of identification of the natural person2.
At the same time, special provisions applicable in the matter of marital status are
found in: Law No 119/1996 about the civil status documents3, the Methodology for the
unitary application of the provisions of Law No 119/19964, as well as in the Government
Ordinance No 41/2003 regarding the acquisition and administrative change of the names
of natural persons; Government Emergency Ordinance no. 97/2005 on the registration,
domicile, residence and identity documents of Romanian citizens, republished.
In general, the term legal act is used with two meanings, namely that of negotium
iuris and that of instrumentum probationis. We find the same meanings in the case of
marital status documents.
As such, the doctrine5 has stated that the marital status documents with the
meaning of instrumentum represent those documents recorded in the civil status
registers, in which are mentioned by the organs with civil status attributions, according
to the law, the elements of the marital status of the person. Stricto sensu, are documents
of civil status: the birth certificate, the marriage certificate and the death certificate.
Lato sensu, in this category are found the three documents of civil status, within this
category are found the three civil status documents, but also the birth certificate, the
marriage certificate and the death certificate as well as the duplicates of these
certificates issued according to the law.
As negotium iuris, i.e. manifestation of will made with the intention to produce
legal effects, the civil status documents are the recognition of filiation, adoption and
marriage.
2
E. Chelaru, Drept Civil. Persoanele, 5th Edition, C.H. Beck Publ.-house, Bucharest, 2020, p. 149.
3
Republished based on Art V of the Government Emergency Ordinance No 80/2011 for the modification
and completion of the Law No 119/1996 about the civil status documents, published in the Official
Gazette of Romania, Part I, No 694/30 September 2011, approved with modifications and
amendments by the Law No 61/2012, published in the Official Gazette of Romania, Part I, No 257/18
April 2012, renumbering the texts.
4
Government Decision No 64/2011 for the approval of the Methodology for the unitary application of the
provisions in the area of civil status, published in the Official Gazette of Romania, No 151/2 March 2011.
5
G. Boroi, Drept civil. Partea generală. Persoanele, Hamangiu Publ.-house, Bucharest, 2008, p. 464, I.
Dogaru, S. Cercel, Drept civil. Persoanele, C.H. Beck Publ.-house, Bucharest, 2007, p. 187; Ilioara
Genoiu, Drept Civil. Partea generală. Persoanele, C.H. Beck Publ.-house, Bucharest, 2016, p. 364 etc.
72
The meaning considered by the definition given to civil status documents by the
current legislation is that of instrumentum.
Thus, according to the legal definition given by Art 1 of the Law No 119/1996,
republished, “civil status documents are authentic documents proving the birth,
marriage or death of a person”. In the same meaning are the provision of Art 99 Para 2
of the current Civil Code stating that “civil status documents are authentic documents
proving, until the proof of false registration, for the personal findings of the registrar
and, until proven otherwise, for the other statements.
These legal definitions, in the literature6, have been criticized. It has been stated
that Art 1 of the Law No 119/1996 is lacunary, because not just the birth, marriage or
death are proven by civil status documents, but also the adoption. At the same time, the
reference to the person, without adding the term “natural”, is too general and likely to
create confusion. Also, it has been claimed that the final purpose indicated by the legal
provisions, that regarding the protection of the rights and fundamental freedoms of
citizens, is debatable, because it is difficult to deduce how can these rights be protected
by the birth/marriage/death certificate, for instance the right to information of the
person, his/her freedom of speech, the right to free association or freedom of
conscience etc. Finally, it was also argued that the legal definition lacks absolutely
necessary elements such as, for example, the persons entitled to draw up and the
procedure to be followed for drawing up civil status documents.
As far as we are concerned, we consider only the first observation to be well-founded,
however the lack of the appellation “natural” is not likely to give rise to confusion as
marital status is an attribute of identification of the natural person and, moreover, birth,
marriage, death or adoption they cannot be imagined in the case of the legal person.
With regard to the protection of citizens’ rights and fundamental freedoms through
civil status documents, we consider that it is not necessary that all rights can be
protected through them, given that their list can be permanently supplemented with
new rights and freedoms, but it is sufficient for at least one right, for example, the right
to civil status to be protected by them, for the legislator to point out from this
perspective the importance or purpose of civil status documents7.
The criticism regarding the absence from the legal definition of the mentions about
the persons entitled to draw up the civil status documents and the procedure to be
followed, is unfounded because a legal definition must help to discover the scope of
regulations, to notify the nature of the legal institution and as such. to ensure the
practicability of the norm, not assuming that each term used in the elaboration of the
concepts to be explained in detail, plus that the aspects referring to the competent persons
to draw up the civil status documents and the procedure to be followed are presented in
the legal text. Defining the concepts is both a condition of the scientific precision, as well
as one of the social efficiency of the legal norm. It consists in assigning a clear and
6
T. Bodoaşcă, S. O. Nour, I. Maftei, Drept civil. Partea generală. Subiectele dreptului civil, Universul
Juridic Publ.-house, Bucharest, 2010, pp. 198-199.
7
A. Drăghici, R. Duminică, Stare civilă, Sitech Publ.-house, Craiova, 2013, pp. 99-100.
73
Conference Paper
precise meaning to the notions used in the construction of the legal text which contributes
to its intelligibility8, and not in the use of superfluous details.
2. Legal nature of marital status documents
From the above-mentioned provisions, it results that the marital status documents
have a mixed legal nature, being able to be analyzed both from the perspective of the
civil law, but also from that of the administrative law.
From the perspective of the civil law, the civil status documents are a species of
authentic documents, as it is expressly stated by Art 1 of the Law No 119/1996, as well
as by Art 99 Para 2 of the Civil Code. From the perspective of the administrative law,
the civil status documents have the legal nature as writings proving the individual
administrative acts, namely the civil status records. In supporting this aspect, we
emphasize Art 2 Para 1 of the Law No 119/1996, according to which the acts of birth,
marriage and death shall be made in civil registry, as well as Art 3 Para 1 of the same
law, according to which “the duties of civil status are met by the county councils, by
the General Council of Bucharest Municipality, the local community public services
for people in administrative units where they are established, as well as civil state
officers in administrative-territorial units within municipalities where local community
public services are not working”.
3. The competence of drawing up civil status documents

for Romanian citizens abroad
Civil status documents are drawn up in the interest of the state and of the person
and have as objective the knowledge of the number and structure of the population, of
the demographic situation, as well as the protection of citizens’ rights and fundamental
freedoms. The recording of this documents shall be made in the civil status registries.
As such, the civil status recordings are “those legal operations of mentioning, in
the civil status registries, of the legal acts and facts regarding the civil status, as well
as of other elements stated by the law, operations performed, according to the law, by
the organs with civil status attributions”9.
It follows from the relevant legal provisions that civil status registrations can be
made in two ways: registrations in the form of drawing up civil status documents and
registrations in the form of entering marginal mentions on civil status documents.
Drawing up civil status documents is the main category of registrations and
consists in the recording in the civil status registries of the birth, marriage or death.
Civil status documents for Romanian citizens abroad are drawn up by the consular
offices of Romania or by the foreign local authorities with such competences.
8
R. Duminică, A. Tabacu „The role of legal conceptualism in the technical construction of the law”, in
Agora International Journal of Juridical Sciences, no. 2/2012, pp. 25-30.
9
G. Boroi, Drept civil. Partea generală. Persoanele, op. cit., 2008, p. 461.
74
If initially the registration of the civil status act or fact concerning a Romanian
citizen was made by the foreign local authorities, later, at the request of the person in
question, based on the civil status certificates thus issued, the registration in the
Romanian civil status registers from the diplomatic missions or consular offices of
Romania can be made with the approval of the head of these institutions.
4. The procedure of drawing up civil status documents

for Romanian citizens abroad
Based on the civil status document, registered in the Romanian civil status registries
at the diplomatic mission or consular office, the civil status certificate is issued
accordingly. The application for registration of the birth is made by one of the parents,
and if the minor whose birth is to be registered has reached the age of 14, he will submit
the application himself, but assisted by one of the parents or, as the case may be, by the
guardian, or by proxy with special power of attorney. For the registration of marriage
certificates, the application shall be submitted by the Romanian spouse, in own name or
by proxy with special power of attorney, and for the registration of death certificates, the
application shall be submitted by a family member or by another entitled person.
As the registers are filled in, the Romanian diplomatic missions and consular
offices send, through the Ministry of Foreign Affairs, the documents from the first
copy of the civil status registers to the Public Directorate for Registration of Persons
and Civil Status of Sector 1 of Bucharest, together with the primary documents on the
basis of which the document was drawn up. The second copy of the documents from
the civil status registries shall be sent, within 30 days from the date when all
documents were filled in, to the General Directorate for Persons Record and Databases
Management of Bucharest.
In case the registration of the documents in the registers from the headquarters of
the consular missions or offices was not requested, according to Art 72 of the
Methodology for the unitary application of the provisions of Law No 119/1996, the
civil status documents of the Romanian citizens drawn up abroad by the local
authorities shall be compulsory transcribed in the Romanian civil status registers,
within 6 months from the return to the country or from the receipt from abroad of the
certificate or extract of civil status, otherwise the respective documents do not have
probative force in our country. The transcription of the certificates and extracts of civil
status shall be made with the approval of the mayor of the administrative-territorial unit
where the applicant resides, with the prior consent of the County Public Community
Service for Persons Records.
For Romanian citizens who have never resided in Romania, the transcription of
certificates and extracts shall be made only with the approval of the mayor of Sector 1
of Bucharest and with the prior consent of the head of the Public Directorate for
Registration of Persons and Civil Status of Sector 1 of Bucharest within 60 days from
the date of the request for transcription.
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In addition to the civil status certificate or extract issued by the foreign authorities,
in original, photocopy and certified translation, the request for transcription is
accompanied, as the case may be, by the following documents:
a) Photocopies of birth and marriage certificates, of the ID or passport, where
appropriate;
b) Notarial declarations of both spouses, if they are Romanian citizens, or only of
the Romanian spouse, regarding the name carried after the marriage, if the foreign
marriage certificate/extract does not refer to the name of the spouses after their marriage;
c) A statement from the parent requesting a transcript of the child’s birth
certificate, if the child’s parents have different domiciles;
d) A statement frm the owner of the document or of the legal representative that
there is no other legal act transcribed/registered or reconstituted.
In the exceptional case where the holder of the certificate or civil status extract to be
transcribed is not in possession of any document proving Romanian citizenship, as he left
the country with his parents, during his minority, checks will be performed at the General
Directorate of Passports (D.G.P.), and if the applicant was not born in Romania, the
mayor’s office competent to transcribe the certificate performs checks at D.G.P.
Also, for all cases, after the registration of the request, a series of checks shall be
performed to establish:
a) If the owner of the birth, marriage or death certificate or extract is a
Romanian citizen; checks shall be performed at the D.G.P. or at the National Authority
for Citizenship;
b) If there is another document transcribed or reconstituted in the country;
checks shall be performed in the civil status registries stored for safekeeping and,
where appropriate, at the Public Community Service for Persons Records or at the
mayor’s office of the domiciles previously held, until the date of registration of the
document by the foreign authorities;
c) If the Public Community Service for Persons Records/mayor’s office of the
administrative-territorial unit where the request has been submitted has territorial
competence for the approval of the transcript, for citizens who identify themselves with
passport, checks shall be performed at the Public Community Service for Persons
Records from the last domicile declared by the applicant.
Administrative documents issued by foreign authorities, submitted for
transcription in the Romanian civil status registries, as well as their translations, which
are made by a foreign public notary, shall comply with a series of conditions, namely
the documents issued by Member States of The Hague Convention of 5 October 1961
shall be apostilled; the documents issued by states with whom Romania has concluded
treaties/conventions/agreements for legal aid shall be exempted from super-
legalization, apostille or any other formality, while the documents that are not found in
one of these situations shall be super-legalized. Subsequently, the request for
transcription shall be submitted to the County Public Community Service for Persons
Records accompanied by the report with check results, from which it results that there
is no other document transcribed or reconstituted in the Romanian civil status
registries. After receiving the approval of the County Public Community Service for
Persons Records, the civil status officer shall present to the mayor the report
76
accompanied by the request for transcription of the civil status certificate or extract.
Based on the approval of the request for transcription of the documents submitted by
the applicant and their own registrations, the civil status officer shall draw up the civil
status document and shall issue the appropriate certificate for the entitled person.
Last but not least, we mention that, given that the Romanian legislator does not
recognize same-sex marriage or civil partnerships, consequently, it is forbidden to
transcribe/register certificates or extracts of marital status issued by foreign authorities
regarding a same-sex marriage or a civil partnership, concluded abroad by Romanian
citizens, or by foreign citizens.
Conclusions
According to the legal provisions in force, Romanian citizens abroad have the
possibility to address the diplomatic missions, the consular career offices of Romania
or the competent local authorities, in order to draw up the civil status documents. They
have the right to request the transcription in the Romanian civil status registries of the
diplomatic missions or consular career offices of Romania, of the civil status
certificates issued by foreign authorities if the registration of the civil status act or fact
has been initially made by the authority of the state in which they reside. The
transcription shall be possible only with the approval of the heads of diplomatic
missions or consular offices, and their refusal must be motivated.
Bibliography:
I. Treaties, university courses, monographs
1. T. Bodoaşcă, S. O. Nour, I. Maftei, Drept civil. Partea generală. Subiectele dreptului
civil, Universul Juridic Publ.-house, Bucharest, 2010.
2. G. Boroi, Drept civil. Partea generală. Persoanele, Hamangiu Publ.-house, Bucharest,
2008.
3. E. Chelaru, Drept Civil. Persoanele, 5th Edition, Ch. Beck Publ.-house, Bucharest, 2020.
A. Drăghici, R. Duminică, Stare civilă, Sitech Publ.-house, Craiova, 2013.
4. Dogaru, S. Cercel, Drept civil. Persoanele, C.H. Beck Publ.-house, Bucharest, 2007.
5. Genoiu, Drept Civil. Partea generală. Persoanele, Caiet de seminar, C.H. Beck Publ.-
house, Bucharest, 2016.
II. Articles in specialized press

1. R. Duminică, A. Tabacu „The role of legal conceptualism in the technical construction
of the law”, in Agora International Journal of Juridical Sciences, no. 2/2012.
2. R. Duminică, D. Iancu, General considerations regarding the principal liability for the
agent actions in the light of the New Civil Code, in „Annales Universitatis Apulensis”,
Series Jurisprudentia nr. 14/2011, Alba-Iulia, 2011.
77
Conference Paper
ANALYSIS OF THE GENERAL PRINCIPLES

OF PUBLIC ADMINISTRATION IN THE LIGHT
OF THE ADMINISTRATIVE CODE
Ioana PANAGOREŢ*
Ivan Vasile IVANOFF**
Abstract: This analysis introduces in the debate of the Romanian doctrine the discussion
of the general principles of public administration, the analysis being particularly welcomed in
the context in which Romania knew in the pre-war and interwar doctrinal debate such an
approach and taking into consieration that there is such an approach in the socialist doctrine of
public law The general principles of public administration have always been supported by the
constitutional and organic regulations of the time. We were talking about the new post-
December legislative novelty about the reappearance of these general principles of public
administration at the level of organic regulations The administrative code approved by OUG no.
57/2019 makes a moral reparation in this field, a fact for which we feel the need to emphasize at
the doctrinal level this return in force of the general principles of public administration.
Keywords: General principles, public administration, legal and doctrinal importance,
doctrinal debate
Introduction
Since the socialist period there have been no general principles of public
administration enunciated in the post-December regulations. I saw then that the socialist
doctrine enunciated a series of general principles of state administration pertinent at that
time and applicable to the entire state public administration. After the 1989 Revolution
the doctrine and the law no longer regulated general principles of public administration,
but only principles of local public administration, initially introduced by the former Law
no. 69/1991 and then supplemented by Law no. 215/2001.
An attempt was made to reintroduce in our legislation the general principles of
public administration in 2002 when the initiator of this idea was the Paul Negulescu
Institute of Public Administration in Sibiu, which then drafted an Administrative Code
that included several statements in this regard. We consider that the introduction in the
code and implicitly then in the doctrine of the principles of public administration
represents an important step in understanding the modern and contemporary
mechanisms of functioning of the public administration.
Let's not forget that since 2004 Romania joined NATO and in 2007 the European
Union and the community acquis meant not only the adaptation of the Constitution and
legislation to this membership but also the implementation and compliance of the
* PhD. Associate Prof., Valahia University of Targoviste, Romania, ioana_panagoret@yahoo.com.

** Lect.PhD, Valahia University of Targoviste, Romania ivan_ivanoff2005@yahoo.com.
78
Romanian state with European normative requirements. We will make a list of these
general principles of public administration and a brief analysis of them.
According to the doctrine, in order for a rule to be a principle of the public
administration system, it must meet the following requirements:
• To be an essential rule for the organization and functioning of the system;
• To be a determining rule for the mode of action of the system;
• Through it to manifest the characteristics of public power (unique or divided,
democratic or undemocratic, unitary or compound);
• To be legally formulated or to be deduced from the law.
In this legislative context, here are the general principles of public administration
regulated by the Administrative Code.
1. The principle of legality
Legality means the strict observance of a rule of law1. Being a universal principle,
observance of legality is an essential requirement for the stability of public order in a
state governed by the rule of law. In this generous framework of doctrinal expressions,
throughout the existence of public authorities. More precisely, the existence of public
authorities is possible only as an expression of the existence of a legal norm to support
their appearance.
Starting with the Romanian Constitution, going through the organic and ordinary
regulations, the appearance and functioning of these public authorities can only be based
on the law, as a generic norm of expression. Then, the organization and functioning of
these public authorities is not possible without I keep up with the social dynamics. It is no
coincidence that we also make the present analysis of the public authorities through the
prism of the development dynamics of the Romanian post-December society.
The competencies and attributions of these public authorities cannot take shape
without their support in normative acts with the force of law. The exercise of any other
competences and attributions outside the law falls under the incidence of the sanction
of the law and the control of the courts that corrects any deviation from the legal norms
of any public authorities. the basis of the law, because these authorities put into
practice the realization of the general interest of the society for which all the organs of
the state are called to realize it.
There is no administration outside the interest of the citizen and this permanent
reporting is the essence of the existence of states in favor of resolving the values of
citizens as an expression of individualist doctrine, at the dawn of democratic and
solidarity doctrine that conjugated over the individualist, giving time institutions and
authorities It exists and functions exclusively in order to satisfy the general interests of
society. This principle is general, we find it at the level of all institutions of material
and procedural law, being at the foundation of the existence of state constitutions in all
democratic societies organized in respect of the rule of law.
1
Calin Dumitru, Unele aspecte ale principiului legalitatii, Studii Juridice Universitare, 2008, p 311 si urm.
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Conference Paper
2. The principle of equality
This principle finds a multiple normative, jurisprudential and doctrinal support as

follows:
1] A first support is the international one based on Article 1 of the Universal
Declaration of Human Rights which proclaims that all human beings are born free and
equal in dignity ”and rights and in art.7 it is stipulated that:“ All human beings are equal in
before the law and have, without any distinction, the right to equal protection of the law ”.
Also in this first category this principle is supported by Article 26 of the
International Covenant on Civil and Political Rights, the right to non-discrimination as
a human right and the related obligation of States to realize this right;
At the same time, Directive 2000/43 / EC implementing the principle of equal
treatment between persons irrespective of racial or ethnic origin supports the existence
of this principle at the level of the international norm.
2] Secondly, this principle is supported by art. 16 of the Constitution, which
proclaims the following: “Citizens are equal before the law and public authorities,
without privileges and without discrimination. No one is above the law. "
3] Thirdly, this principle is supported by art.7 of the Administrative Code which
stipulates the following: “Beneficiaries of the activity of public administration authorities
and institutions have the right to be treated equally, in a non-discriminatory manner,
correlated with the obligation of the authorities and public administration institutions to
treat all beneficiaries equally, without discrimination on the basis of the law. "
4] Fourth, at the doctrinal level, equality of rights of citizens was classified into
strict equality and relative equality2. Strict equality is also known as "absolute non-
discrimination" and is understood as "total equivalence of the legal regime applicable
to different factual situations3." On the other hand, relative equality expresses the
reality that for different social situations legal regimes adapted to the specifics of each
of them must be ensured. 4”
5] Fifth, at the level of jurisprudence, equality of rights has complex meanings and
functions. Equality in rights of citizens, enshrined at the constitutional level, is
understood in the jurisprudence of the Romanian Constitutional Court as the identity of
solutions only for identical situations. In relation to the constitutional jurisprudence and
the decisions of the High Court of Cassation and Justice: “According to the
jurisprudence of the Constitutional Court, in accordance with that of the European
Court of Human Rights, the constitutional principle of equal rights presupposes the not
opposing the establishment of different solutions for people in distinct situations ".
With regard to the application of differential treatment, it has been settled in case
law that: "Differentiated treatment must pursue or have the effect of restricting or
removing the recognition, use or exercise, on equal terms, of human rights and
2
I. Muraru, S. Tănăsescu (coord.), Constituţia României. Comentariu pe articole, Universul Juridic
Publishing House, Bucharest, 2019, p. 138.
3
Ibidem.
4
Ibidem, p.139.
80
fundamental freedoms or of the rights recognized by law in the political, economic,

social and cultural fields or in any other areas of public life”5
3. The principle of transparency
Decision-making transparency and free access to public information has been and
remains a fundamental requirement for Romania's alignment with the core values of
the functioning of the European Union and is a feature of the functioning of any rule of
law. Transparency is mandatory and respected by all public authorities. from Romania,
including and especially of the public administration authorities.
It is known that the execution of the law and the organization of the execution of
the law fall within the competences of the public administration and the basic skeleton
of the proper functioning of a democratic state is given by a good functioning of the
public administration. administered the public and private domain of the territorial
administrative units must be made as transparent as possible so that the taxpayer citizen
has permanent control over the way in which the public administration realizes its
competences and attributions for the benefit of the citizen.
We will see that transparency is mandatory when it comes to normative
administrative acts, the projects must be debated with the citizens and the "finished
product" of these debates must then be published for public knowledge. major public
impact must be debated with citizens. All medium and long term decisions,
development strategies, plans and perspective objectives must be debated with citizens
and their opinions must then be found in strategic and normative decisions that will
have a public impact. particular.
The lack of decisional transparency during the communist period ended with the
publication of the 1991 Constitution and especially after the publication of Law no.
52/2003 on decisional transparency. As can be seen, the regulations mentioned above
reflection in the principles stipulated by the Administrative Code.
4. The principle of proportionality6
„Appreciated7 as a relevant principle in the field of protection of fundamental

human rights and specific to this protection, proportionality has lent its traditional
background to administrative law and, subsequently, to constitutional law in
5
Decision no. 4147/2011 of September 16, 2011 of the High Court of Cassation and Justice of
Romania.
6
Georgeta-Bianca Spîrchez, Oana Şaramet, Despre utilitatea folosirii principiului proporţionalităţii în
analiza depăşirii limitelor puterii discreţionare a administraţiei, SUBB Iurisprudentia nr.3/2018,
Published Print:2018-12-17.
7
Thomas Cottier, Roberto Echandi, Rafael Leal-Arcas, Rachel Liechti, Tetyana Payosova, Charlotte Sieber-
Gasser, The Principle of Proportionality in International Law, Working Paper No 2012/38, December 2012,
Swiss National Centre of Competence in Research on Trade Regulation, p. 4, paper available
at: https://www.researchgate.net/publication/275347556_The_Principle_of_Proportionality_in_International_
Law, , last accessed: 07.05.2021.
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Conference Paper
continental Europe. From these branches of law, the principle of proportionality has
spread in European law and in international public law, from where it has returned to
national law, but with new elements, legal aspects.8.
Of German origin 9, the principle of proportionality has earned its well-deserved
place among the fundamental principles of any state that wants to be a state governed
by the rule of law, a principle recognized as such at the level of international
organizations worldwide or regionally. 10.
Regarding our doctrine, in an opinion expressed in a specialized paper,11 judicial
control in opportunity is, par excellence, a control of proportionality, emphasizing that
“this control is of particular importance and usefulness when the individual
8
In the sense of the above, we recall that, in French doctrine, proportionality, defined as "a requirement
of a relationship, of a correlation between the means employed by the administration and its purpose"
(Guy Braibant, Le principé de proportionalité in Le juge et le droit Mixtures offered to Marcel Waline,
vol 2, Paris, LGDJ, 1974, p. 297, apud Lamprini Xenou, Le principes généraux du droit de l'Union
Européenne et de la jurisprudence administrative française, Bruylant Edition, 2007, p. 347), although it
has existed for a long time, has not been clearly recognized by the administrative judge as a true
general principle of law, although French case-law reveals the use of that notion. However, the need
for proportionality determines the extension of both its content and its wording in order to be
recognized as a true principle, and an essential role in this regard is played by European Union law,
but especially by the case law of the Court of Justice of the European Union on the principle of
proportionality. See in this regard, Lamprini Xenou, op. cit., pp. 349-350.
9
The doctrine of the principle of proportionality has its origins in continental Europe, being born in
Prussia at the end of the century. XVIII, within the process of legislative codification circumscribed to
the principle of the rule of law, being applied by the administrative contentious courts in Germany sec.
nineteenth century, so that its spread and embrace by the laws of other states, as well as of
international bodies, national and international courts, through their jurisprudence, to occur, especially
after the Second World War. See in this regard, Thomas Poole, Porportionality in Perspectives in LSE
Law, Society and Economy Working Papers 16/2010, London School of Economics and Political
Science, pp. 1-2, available at: http://eprints.lse. ac.uk/32900/1/WPS2010-16_Poole.pdf, last accessed:
12.05.2021.
Thus, in 1794, a law of common law was adopted for the Prussian states, stating that the function of the
Prussian police was to "take the necessary measures to ensure the maintenance of peace, security and
public order, and to avoid producing a danger to the company or a member of it ”, which meant, at least
in theory, that the Prussian police could act only to the extent that such an approach was necessary. See
in this regard Nikolaus Marsch, Vanessa Tünsmeyer, The principle of proportionality in German
administrative law in The judge and the proportionate use of discretion: A comparative law study,
Ronledge Research EU Law, edited by Sofia Ranchordás, Boudewijn de Waardeds, 2016 , pp. 24-25.
By case law (by decision of Kreuzberg (14 June 1882, Provg 9, 353)) the Supreme Administrative Court
of Prussia examined whether the measures taken by the police forces were more than what was
considered necessary, under the above-mentioned regulations, to achieve goals, relevant objectives
(Yutaka Arai-Takahashi, Proportionality - a German Approach in AmicusCuriae, Issue 19, July 1999,
p. 11, available at: https://sas-space.sas.ac.uk/3907/1/1458 -1702-1-SM. Pdf, last accessed:
12.05.2021), assessing, therefore, the proportionality of the measures taken by the police. For more
details on the origin of this principle, see: Nikolaus Marsch, Vanessa Tünsmeyer, op. cit., pp. 25-30;
Lamprini Xenou, Le principes généraux du droit de l'Union Européenne et de la jurisprudence
administrative française, Bruylant Edition, 2007, pp. 350-352; Yutaka Arai-Takahashi, op. cit., p. 11
10
This principle was not only taken over by administrative law, and subsequently acquired the value of a
constitutional principle, including by rediscovering it in the jurisprudence of the German Constitutional
Court, but acquired the valences of "a meta-principle of judicial governance", thus being taken over. as
already mentioned by other states, as well as international organizations of which are considered "the
most notable Council of Europe, through the European Convention on Human Rights, the European
Community and the World Trade Organization". See in this regard Thomas Poole, op. cit., p. 2.
11
Ion Deleanu, Drepturile fundamentale ale părţilor în procesul civil. Norme naţionale, norme
convenţionale şi norme comunitare, Universul Juridic Publishing House, Bucharest, 2008, p.400.
82
administrative act , although it is legal, it is not "appropriate", "appropriate" in the

specific circumstances and in relation to the interests pursued ".
Another Romanian author12 joined this line of thinking, who argued that the
principles of proportionality and non-discrimination are "mandatory specific conditions
of legality, for reasons of expediency, and which the judge must necessarily take into
account as methods of assessing the exercise of the discretion of the administration”.
The quoted author shows that the opportunity must be related to the provisions of art.
53 of our fundamental law, an article that regulates the restriction of the exercise of
certain rights or freedoms, as follows: “para. (1) The exercise of certain rights or
freedoms may be restricted only by law and only if required, as the case may be, for:
the defense of national security, order, public health or morals, the rights and freedoms
of citizens; conducting criminal investigation; prevention of the consequences of a
natural disaster, a disaster or a particularly serious disaster. Alin. (2) Restriction may
be ordered only if it is necessary in a democratic society. The measure must be
proportionate to the situation which gave rise to it, be applied in a non-discriminatory
manner and without prejudice to the existence of a right or freedom".
Moreover, whenever there is a question of the restriction of a fundamental right or
freedom, the principle of proportionality is a guarantee aimed at 'achieving a fair
balance between individual interests and the public interest or between different private
interests corresponding to fundamental subjective rights, enshrined and constitutionally
guaranteed”13.
It should be noted that the proportionality test may require, in some cases, the
balancing of the public interest, respectively the private interests potentially affected by
the adoption of the act aimed at achieving the public interest, and in other cases may
mean a cost-benefit analysis.14.
What is certain is that, in both cases, the reference to the principle of
proportionality means supporting a well-founded basis for the adoption of the act. 15.
Professor I. Deleanu also talks about a fair balance when referring to
proportionality, showing that the right balance must be ensured, mainly, between the
means used and the intended purpose16 . Thus, in the opinion of the mentioned author,
proportionality is not a matter of mathematics, of quantitative report, but rather a
qualitative problem, "expressing the requirement of an" adequacy "between a
legitimate objective - resulting from the text or under the text of one or more many
legal norms, constituted as reference norms, as a major premise in syllogism or
polysilogism with the aim of formulating a value judgment on the “measure” or
“limits” of the application of those norms-, the means used to achieve that objective
and the result or “effect »Produced by the implementation of those means."
12
Oliviu Puie, Principiul legalităţii în adoptarea actelor administrative ale autorităţilor publice, în Revista
Dreptul nr.9/2009, p.153.
13
Marius Andreescu, Restrângerea exerciţiului unor drepturi şi principiul proporţionalităţii, în Curierul
Judiciar nr.7-8/2011, p. 399.
14
Sofia Ranchordás, Boudewijn de Waard, Proportionality crossing borders. Why it is still difficult to
recognise sparrows and cannons, în The judge and the proportionate use of discretion: A comparative
administrative law study, Sofia Ranchordás, Boudewijn de Waard eds., Abington: Routledge, p. 3.
15
Ibidem.
16
Ion Deleanu, op. cit., pp. 64-365.
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In accordance with the above, another Romanian doctrinaire 17 expresses himself,

concluding that "the principle of proportionality is an essential criterion that allows the
delimitation of discretionary power from excess of power in the activity of state
authorities".
In the opinion of the above author18, by taking over and adapting the requirements
necessary to be taken into account for the observance of the principle of
proportionality, from the foreign doctrine, the measures ordered by the state authorities
can be qualified as representing an excess of power whenever one can speak of
situations. such as those in which:
- the measures ordered do not pursue a legitimate aim;
- the decisions of the authorities are not appropriate to the legitimate aim pursued,
in the sense that they go beyond what is necessary to achieve that aim;
- there is no rational justification for the measures ordered;
- in their decisions, the State authorities restrict the exercise of fundamental rights
and freedoms without giving adequate reasons for the appropriate relationship between
the measure ordered and the legitimate aim pursued.
Beyond all the Romanian doctrinal considerations, revealed above, the importance
of this principle, and its applicability in the field of public administration, lies in its
express provision in the Romanian Administrative Code namely in art.9 which
provides19: "Forms of activity of public administration authorities they must be
appropriate to satisfy a public interest and balanced in terms of their effects on persons.
The regulations or measures of the public administration authorities and institutions are
initiated, adopted, issued, as the case may be, only after the assessment of the needs of
public interest or of the problems, as the case may be, of the risks and impact of the
proposed solutions ”.
At the same time, Article 313 of the Romanian Administrative Code, which
concerns principles for awarding the public property concession contract, provides, in
letter c), that "any measure established by the public authority must be necessary and
appropriate to the nature of the contract ”.
It is also worth mentioning art. 574 of the same Code, which refers to the
principles of administrative liability, ordering, at par. (2), in the sense that the principle
of fairness or proportionality of liability means "correlating the sanction applied with
the degree of social danger of the wrongful act committed and with the extent of the
17
Marius Andreescu, Unele probleme ale puterii discreţionare şi ale excesului de putere în activitatea
autorităţilor statului, în Revista Pandectele Române nr.12/31.12.2012, p. 46.
18
Marius Andreescu, op. cit, p. 45.
19
The form sent for promulgation, available at the web address:
http://www.cdep.ro/pls/proiecte/docs/2018/pr369_18__1_.pdf, accessed on 25.08.2018. It is
necessary to mention that at the time of finalizing this material, the Constitutional Court of Romania
declared, on November 6, 2018, the Law on the Administrative Code of Romania, as a whole,
unconstitutional, but we express our hope that the legislative authority will put, as soon as possible.
possible, in implementing the decision of the Constitutional Court, and that it will maintain at least the
aforementioned legal text, as well as its subsequent ones and referred to in this study, in order to
meet minimum requirements for recognition, including through such of code, not only at constitutional
level, or by other normative acts relevant in administrative law, the principle of proportionality and its
content. See in this regard the Press Release of the Constitutional Court of Romania of November 6,
2018, accessible at: https://www.ccr.ro/files/statements/Comunicat_de_presa,_6_noiembrie_2018.pdf.
84
damage, in case of damage, with the established form of guilt, through a correct
individualization."
Moreover, it is also acknowledged in an opinion in the foreign literature 20 that, in
administrative law, proportionality has acquired a specific significance in relation to
the fact that public authorities are expected to assess the potential public benefit they
seek to satisfy, in relation to the damages caused /prejudice caused, in case of adopting
a certain decisional conduct. In these circumstances, the adoption of the act is indicated
only if the public benefit prevails.
It is worth noting, in this context of analysis, that the principle of proportionality is
today a mean of controll for discretionary power even when constitutional rights are
not in question.21.
Thus, given that the use of the principle of proportionality plays a central role in
the judicial review of administrative decisions in most European jurisdictions, aiming
to limit the exercise of the discretion of the public administration, it can be said that
this principle is one of the guarantees of the rule of law.22
As this principle has been shaped, in large part, by the influence of the case law of
the European Court of Human Rights and the Court of Justice of the European Union,
it is necessary to highlight some aspects of the principle of proportionality developed in
the case of the two international jurisdictions.
Thus, although the principle of proportionality23 is one of the defining standards
that contributes to the protection of fundamental rights, guaranteeing the right balance
between individual rights and the public interest, the text of the European Convention
on Human Rights24 contains few specifications for the proportionality test. proportional
”,“ fair balance ”,“ disproportionate ”.
Therefore, by briefly analyzing the principle of proportionality made in this study,
we tried to answer a few questions, namely:
What is this "proportionality test" when the decisions of the administration are
subject to scrutiny by the courts? It must go through four steps, as identified in German
law: the legitimate aim, the adequacy (fit, compatibility) of the measure, the necessity
of the measure and the fair proportion (adequacy or proportionality regarded stricto
sensu);
20
Sofia Ranchordás, Boudewijn de Waard, op. cit., pp. 4-5.
21
Mathews Judkins, Proportionality Review in Administrative Law (September 7, 2016) in Comparative
Administrative Law, 2d ed., Susan Rose-Ackerman, Peter L. Lindseth& Blake Emerson, eds., Edward
ElgarPublishing, 2017; Penn State Law Research Paper No. 25-2016. disponibil la:
SSRN https://ssrn.com/abstract=2836264, p.1.
22
Sofia Ranchordás, Boudewijn de Waard, op. cit., p.4.
23
Sofia Ranchordás, Boudewijn de Waard, Proporţionality crossing borders. Why it is still difficult to
law study, Sofia Ranchordás, Boudewijn de Waard eds., 2016, p.10.
24
The European Convention for the Protection of Human Rights and Fundamental Freedoms was
adopted on November 4, 1950, in Rome, and entered into force on September 3, 1953, Protocol no.
16 being the last to make changes to it. Protocol no. 16 was adopted and opened for signature on
October 2, 2013 and entered into force on August 1, 2018, for the states that ratified it. The
Convention was ratified by Romania, by Law no. 30/1994, published in the Official Gazette, Part I no.
135/1994.
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What is the place of the principle of proportionality in this system of control of

administrative decisions by the courts? I noted that this is one of the fundamental
principles, at the same level as the principle of legality, given that any decision of the
administration, including in the exercise of discretion, must fall within the limits set by
the principle of legality, not being possible to affect in any way public interest.
This is a principle taken into account by the European courts - the European Court
of Human Rights, respectively the Court of Justice of the European Union, noting that
it is constantly reflected in their jurisprudence.
The principle of proportionality plays a vital role25 in the control exercised by the
courts over the decisions of the public administration, with the main purpose of
restricting the discretion of this administration, balancing the relevant public interests
and protecting the rights and interests of individuals which reflects the usefulness of
this principle. the analysis of exceeding the discretionary limits of this administration. "
5. The principle of satisfying the public interest
This principle has been interpreted differently over time and especially then
applied in some systems of law in an authoritarian, even absolutist way. Using an
elementary logical scheme, this principle has its origin in the solidarity doctrine which
for the legal system had a special importance, substantiating the existence of the
principle of general interest. Based on this principle, it was possible to explain later
what "liability in law" means on the one hand, and on the other hand the existence of
public services, born to satisfy a public need.
From a legal point of view, this means that public authorities “have the obligation
to pursue the satisfaction of the public interest before the individual or group one. The
national public interest is a priority over the local public interest ". Analyzing from a
historical point of view, the appearance and application of this principle, we notice that
over time the exaggeration of the application of this principle by certain societies
constituted the organization of that society on the wrong foundations.
In this sense, we invoke the exaggeration of the application of the principle on the
one hand by fascist societies, and on the other hand the organization of society
according to Bolshevik models, communist type. the regime of sole ownership, only of
the state, with some nuances of its dismemberments of the type of "direct
administration right" offered to communist factories and factories, continuing with the
very drastic and punitive regime of liability in law. The principle of the exacerbated
general interest did not even exist the notion of private property, but only of personal
property, and the whole communist state system was based on the general interest in
which the interest of each of the country's citizens had to be found.
With the 1989 Revolution, all communist institutions and principles fell, giving up
the wisdom of applying principles that if implemented moderately and rationally were
Sofia Ranchordás, Boudewijn de Waard, Proporţionality crossing borders. Why it is still difficult to
25
law study, Ronledge Research EU Law, edited by Sofia Ranchordás, Boudewijn de Waard, 2016, p. 4.
86
welcome in justifying legal institutions. Thus, the proper application of the principle of
public interest justifies, explains how certain public services and institutions are born,
modify or disappear. If a public service is necessary for the population then it is the
reason for its appearance, or if a public service no longer finds its utility then this
service must disappear.
In fact, all the competencies and attributions of public authorities are determined
by the existence of this principle. They must always be oriented towards satisfying a
public and social need, the administration is not constituted according to the principle
"art for art" but according to the principle from the end of the 19th century - initiated
by Titu Maiorescu and Constantin Dobrogeanu Gherea respectively. This principle is
vital both for our entire legal system but especially for administrative law. the
usefulness of public administration.
6. The principle of impartiality
In the light of Article 16 of the Constitution and taking into account the multiparty
characterism of the new post-December society, but also taking into account Romania's
connection to the universal principles of Human Rights, this principle promotes equal
treatment of public administration in its relations with persons interacting with it. so
that it is obliged to "exercise its legal attributions, without subjectivism, regardless of
its own beliefs or interests" (ar.11). From the legal text we deduce a component that
keeps the behavior, from the attitude of those who hold public positions in the
relationship with the citizens leading us to the deontology of the civil servant, from his
honest exercise in public office so that there is no discrimination based on political,
religious and other moral beliefs and collective mentality characteristic of any society.
Subjectivism is related to the subject of law that applies the law, education,
competence and attitude in relation to the citizen, is related to the fair relationship to be
established between the taxpayer paying taxes, excise duties, VAT, etc. and those who
are remunerated from public money. Subjectivism as an attitude related to the
pathological exercise of the civil service is the basis of many diseases that grind the
civil service, starting with bureaucracy, corruption, abuse of power, obedience and with
the countless cases of arbitrariness and mobbing often encountered in administrative
practice.
The misunderstanding of this correct relationship, the lack of education and
competencies on the part of civil servants lead to the exercise of the legal attributions
of the public administrative authorities being vitiated by such individuals. That is why
the need was felt to introduce this principle, with the rank of principle, so that the result
of the work in these bodies of the public administration will be of benefit to the citizen
and he will be satisfied with the performance of the public administration.
The e-government and good governance models, which represent the dominance
of the administrative activity in the Western states, together with the implementation of
the acquis communautaire and by Romania, have become mandatory to be
implemented in Romania, not only legally but especially at practically, on a daily basis,
of the public administration in the relationship with the citizens.
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As we see the generic expressions of the legislator when he stipulates this

principle he refers to "beliefs" without detailing what kind of beliefs he refers to which
leads us to the idea that all types of beliefs are relevant in removing the subjective
attitude of public administration in exercising responsibilities its. The legislator also
refers to "interests" without making any distinction, so that we can include here both
legitimate public and private interests, as they are defined by Law no. 554/2004 on
administrative litigation.
7. The principle of continuity
This principle was highly valued in the pre-war, interwar and immediately post-war
period especially by the doctrine of the times 26 and was based on a logical scheme that
originated in the Civil Servant Statute of 1925. Since then there was an indissoluble link
between the principle of stability in the public position of the career civil servant and the
continuity and rhythmicity of the respective public service. The doctrine of those times
associated continuity with the rhythmicity of public services provided by permanent officials.
The subjective right of stability on the civil service led, as a consequence to the
continuity and rhythmicity of the respective public service, being necessary the
continuity and rhythmicity both in time of war and in time of peace but also in a series
of natural calamities, states of emergency, etc. and in normal times from the point of
view of such undesirable phenomena and situations. The citizen had and needs
permanently the public services offered by the public administration, knowing that the
public administration puts into practice the fundamental rights and freedoms provided
by the Romanian state in the Constitution.
This principle justifies some fundamental aspects of the existence of the public
service, namely:
- the right to strike is forbidden to certain categories of civil servants or is limited
to a predetermined number by law in certain sectors of public activity;
-this principle justifies the continuity of certain authorities even when they are
dissolved by law [example: current problems of local / county councils are met in this case
by the secretary general of the administrative unit- territories based on a power of attorney
received from the Government] or why a government fired by a motion of censure
continues to handle the country's current problems until the new government is invested.
8. The principle of adaptability
This principle, as it is formulated in the Administrative Code, namely:

"Authorities and institutions of public administration have the obligation to meet social
needs", is more than debatable. which I talked about earlier. This principle is analyzed
26
Erast Diti Tarangul, Paul Negulescu, Anibal Teodorescu si Constantin Rarincescu, Tratat de drept
administrativ. Principii generale, vol.I, Ediţia a IV-a, Institutul de Arte Grafice ,,E. Mârvan“, Bucharest,
1934, pp. 38-72.
88
and appears mentioned by the specialists of the Science of administration 27 in the

category of special principles and also reappears mentioned in the Administrative Code
where there is talk about public services [see art. 587 paragraph (5)].
The principle of continuity of public services is considered in France a general
principle of law.28 In Romania this principle is especially found in the sphere of public
services.
"Public services are subject to the law of progress, ie the benefits to the
beneficiaries must constantly increase both quantitatively and qualitatively. In order to
function satisfactorily, the public service must follow the needs of the public;
moreover, according to this principle, the administration has the obligation to
continuously improve the provision of the public service. In order to ensure a good
adaptation of the public service, the administration may impose various obligations on
those who use public services, such as increasing tariffs. Interesul general variaza in
timp ca urmare nici prestatorii serviciului public si nici cei ce folosesc serviciile
publice nu se pot prevala de un drept dobandit pentru a-si mentine statutul atunci cand
intra in relatie cu serviciul public.
The principle of adaptability has various implications:
- the right to unilaterally modify and to terminate the public service concession
contracts, recognized to the administration, finds its foundation and limits in the
adaptation needs of the public service;
- the administration can modify at any time the rules of organization and
functioning of the public service, those who use the public service not having a right to
maintain its operating conditions.
- Lately, there is another situation, namely the need to adapt public services to the
rules of Community law, which attaches great importance to increasing competition
and reducing state monopolies in public services.”29.
Conclusion(s)
Romanian society is in a process of change in which all the economic, social,

political, civic elements experienced a new dynamic in trying to adapt to the present
conditions.
A democratic system is functional when the economy registers successful and to
the extent that a democratic spirit develops in the social mentality.
In this transformation of the Romanian society one cannot ignore the public
administration system, the need to introduce a European dimension in this area, in
accordance with the values of this administrative space.
27 Corneliu Manda, Elemente de Ştiinţa Administraţiei, Curs universitar, Universul Juridic Publishing
House, Bucharest, 2012, p. 215.
28
J.M. de Forges, Droit de la fonction publique, Revue internationale de droit comparé Année 1987 p. 247.
29
Ana Vasile, Drept administrativ, Augusta Publishing House, Timisoara, 2001, pp. 257 – 265.
89
Conference Paper
Public administration is of crucial importance in the context of efforts to

identification of the most appropriate tools for recovery and growth stimulation
economic, on the coordinates imposed by the current global transformations.
Public administration is a social phenomenon that manifests itself as a system that
acts in society. It has a series of principles that underlie it, there is also the way of
manifestation.
Declaratively, all the factors involved adhered to these principles in the process of
administrative reform in Romania.
Bibliography:
1. M. Andreescu, Unele probleme ale puterii discreţionare şi ale excesului de putere în
activitatea autorităţilor statului, in „Revista Pandectele Romane“ no.12/31.12.2012
2. I. Deleanu, Drepturile fundamentale ale părţilor în procesul civil. Norme naţionale,
norme convenţionale şi norme comunitare, Universul Juridic Publishing House,
Bucharest, 2008.
3. C. Dumitru, Unele aspecte ale principiului legalitatii, in “Studii Juridice Universitare”,
2008.
4. J.M. de Forges, Droit de la fonction publique Revue internationale de droit comparé,
Année 1987.
5. C. Manda, Elemente de Ştiinţa Administraţiei, Curs universitar, Universul Juridic
6. I. Muraru, S. Tănăsescu (coord.), Constituţia României. Comentariu pe
articole, Universul Juridic Publishing House, Bucharest, 2019.
7. O. Puie, Principiul legalităţii în adoptarea actelor administrative ale autorităţilor
publice, in „Revista Dreptul“ no. 9/2009.
8. S. Ranchordás, Boudewijn de Waard, Proporţionality crossing borders. Why it is still
difficult to recognise sparrows and cannons, în The judge and the proportionate use of
discretion: A comparative law study, Ronledge Research EU Law, 2016.
9. G. Spîrchez, O. Şaramet Despre utilitatea folosirii principiului proporţionalităţii în
analiza depăşirii limitelor puterii discreţionare a administraţiei, SUBB Iurisprudentia
nr. 3/2018, PublishedPrint:2018-12-17.
10. A. Vasile, Drept administrativ, Augusta Publishing House, Timisoara, 2001.
11. L. Xenou, Le principes généraux du droit de l'Union Européenne et de la jurisprudence
administrative française, Bruylant Edition, 2007.
12. Thomas Cottier, Roberto Echandi, Rafael Leal-Arcas, Rachel Liechti, Tetyana
Payosova, Charlotte Sieber-Gasser, The Principle of Proportionality in International
Law, Working Paper No 2012/38, December 2012, Swiss National Centre of
Competence in Research on Trade Regulation, available at:
https://www.researchgate.net/publication/275347556_The_Principle_of_Proportionalit
y_in_International_Law.
13. Mathews Judkins, Proportionality Review in Administrative Law (September 7, 2016),
in Comparative Administrative Law, 2d ed., Susan Rose-Ackerman, Peter L.
Lindseth& Blake Emerson, eds., Edward Elgar Publishing, 2017.
90
ON THE THEORY OF EQUITY,

RELY THE ELABORATION OF CODES
IN THE CENTURIES XVIII-XIX
Andreea RÎPEANU*
Abstract: An important contribution to the development of juridical science in this period

was that of the patriotic lord and great scribe Dimitrie Cantemir, representative cultural
personality of his era who, by his wide and multilateral activity, as well as by these advanced,
laic and humanistic ideas, was one of the most important European science people. Partisan of
the ideas of the school of equity, supporter of the state of law, where the lord himself is subject
to laws and justice, for the sake of the people, protector of law and justice towards the people
and predecessor of illuminism, Dimitrie Cantemir considered necessary the evolution of people
by culture, with a view to provide the social evolution and preparation of the conditions for the
achievement of reforms with a view to improve the situation of peasants.
Keywords: Codes, natural law, human rights, juridical doctrines.
1. The Romanian law in the period of IX-XVII centuries
Evolution of thought and Romanian juridical science are closely related to the
development of society. In this study, referring to the period prior to constituting law as
science, we shall deal with the ideas and conception of some significant personalities
of the time. We shall focus on their juridical, as well as political thinking, both
expressed in documents and legislations, that had an important role in the development
of Romanian juridical science.
The period of IX-XIV centuries is characterised by the assertion of Romanian
people, as distinct personality from an ethnical perspective, with own political
organisation and juridical norms. The ancient Romanian law, as Dimitrie Cantemir
stated as well, was ius non scriptum, that is an unwritten law.
The existence of Romanian unwritten law, with a strong identity, was
acknowledge as well by our neighbours, calling it in the official documents, drafted in
Latin, ius valachicum.
In the Romanian chancelleries, the law is known as The Custom of Ground or The
Law of the Country1, with the same disposals for all Romanian countries.2
* Associate Professor PhD, Faculty of Law, Ecological University of Bucharest.

1
The expression of Law of the Country presents the best the contents of Romanian juridical custom.
2
Romanians have called these norms, law, having the signification of unwritten norm, signification
explained by Nicolae Noica (in Romanian philosophical saying, Scientific and Encyclopaedic
Publishing House, Bucharest, 1970, p.174), coming from the Latin re-ligio, that is inner law with faith
and consciousness, since law at Romanians means as well religious faith. Christian law influenced the
moral contents of the consciosness of Romanians since their ethnogenesis. Therefore, when
nomocanons (church laws) appeared, in the XV century, Romanians called them God’s laws or the
Laws of God.
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Therefore, the name of Law of the Country means at the same time its territorial,
unitary nature, since it is the law of a country, of a territory inhabited by the same
Romanian population.
The Law of the Country is a Romanian creation, generated by the lifestyle of
ancestors, developed by Romanians under the conditions of organisation in
collectivities and feudal political formations.3
In order to define the sphere of enforcement of the Law of the country, one shall
rely on the assertions of Nicolae Bălcescu:
The Law of the Country substituted as well the political constitution and of civil
register and of criminal register. The Law of the Country is an inclusive law system, of
a society politically organised in countries, including all norms of unwritten law that
rule the organisation of states on local and central level, the juridical regime of
property, the juridical status of individuals, the organisation of family, the successions,
contracts, collective liability in criminal and tax field, repression of criminal acts and
judging trials.
These norms of law must be construed and enforced in conformity to the
principles of equity, since in the Romanian conception4, justice is equity.
It must be considered that during all this period the Romanian feudal law had a
strong religious nature, and also that unwritten law predominates comparatively to
written law.
More bound forms of political-juridical thinking with laic character started to
appear, both in Moldova and in the Romanian Country, towards the middle of XV
century, when, promoting a policy of consolidation of feudal state and of a more
focused centralisation, under the conditions of constituting a religious organisational
unity, the lords leading the state, with the support and through Church, introduced
written legislation, the same on the entire Romanian territory.
During the following period, that lasted until the end of the XVI century, when
feudal immunities started to be limited, and lord force to consolidate, the feudal law
includes juridical principles more and more systematised and crystallised.5 Naturally,
the juridical thought registers evolutions, as well the base of which cannot dispense
with the legislative, unwritten or written background, certain in terms of contents and
accurate as formulations.
In this respect, the Precepts of Neagoe Basarab to his son Teodosie (1519-1520)
may be considered the first attempt of theorizing the policy of centralised feudal state.
With a double character, laic and religious, the work contains elements of public law
(receiving messengers, military organisation, rules concerning the organisation of war
etc.), for the explanation of which the author declares himself partisan of the idea of
authority of lord power for the substantiation of which he used the religious argument.
3
The juridical norms related to the organisation of principality and voivodeship represent the beginning
of public law in the Romanian Countries.
4
Based on the Romanian principle, according to which, the law system is conceived by Celsus as, ars
boni et aequi, where bonus is the social wellbeing which refers to the protection of social values, and
aequi is equity.
5
From a doctrine perspective. Traian Ionaşcu, Mircea Duţu, History of juridical sciences in Romania,
Publishing House Academia Româna, Bucharest, 2014, pag.17.
92
In the same XVI century, it is noticed a beginning of differentiation between

canonic law and laic law, between church law and royal law, being focused
distinctions, both practical and theoretical, between public and private law. On their
turn, the by-laws of Saxon borough included own regulations.
These include Statuta iurium municipalium saxorum (1583), juridical masterpiece
which, inspired from Roman and German law, was to satisfy the new desires of urban
economy in full development from Saxon towns. The drafting of bylaws was preceded
by a juridical activity rather intense, carried out by the humanists of the era, one of
them being Johannes Honterus from Braşov. In this two juridical works, he supports
the substitution of feudal law with a new Roman ruling, based on humanism, which
may correspond to the needs of municipal bourgeoisie in formation.
Also, in the same period, some principles of natural law are also established. Thus,
in Transylvania, in the Tripartitum of Ştefan Werböczi -15176, code of laws appearing
immediately after the peasant war headed by Gheorghe Doja7, it is defined the notion
of „people”, including only the aristocrats, and the notion of „populace”, assigned to
non-aristocrats, to the peasants constituting the majority of Romanians. By this act, the
Romanians are completely excluded from the political life of Transylvania. Distinction
was made between law and customs, between church and laic law, between law, justice
and jurisprudence, between public law and private law and even between natural law
and positive law. By its contents, the Tripartitum occupies an intermediary place
between written and customary law, being a codification of both forms of law in force
in such era. The code has an introductory part, prologus, which includes a range of
juridical principles and three parts widely corresponding to tripartite division of law in
the law of individuals, goods and actions, division used by Romanian jurisconsults in
the presentation of their juridical system. The third part deals with the law and local
customs of Transylvania.
In the XVII century in the writings of great scribe aristocrats and mainly in the
works of historians, elements of laic thought appeared theoretically substantiating the
restriction of lord prerogatives and the increase of the role of great aristocrats, by
consolidating the political power of manorial council, by control of state apparatus by
the great aristocracy, through the organisation of military forces under the heading of
great aristocrats, by their consolidation of feudal exploitation etc. It was simultaneously
acknowledge, in a more restricted form, however, the role of Ottoman suzerainty, in
the life of Romanian Countries. For instance, Grigore Ureche (1590-1647), partisan of
aristocrat regime, supported the need of written laws with a view to restrict central
power and secure the political power of great aristocracy, declaring himself however an
adversary of Ottoman power.8 A similar conception we encounter at Miron Costin
1633-1691 and Ion Neculce 1672-1745 in Moldova, as well as at Constantin
Cantacuzino 1650-1716 in the Romanian Country.
6
The original title is Tripartitum opus iuris consuetudinarii inlycti Regni Hungariae partiumque
adnexarium.
7
He was a small Szekler nobleman from Transylvania, who led the peasant revolt against great
Hungarian owners (magnates) of ground from 1514, which bears his name.
8
Annals of the Country of Moldavia, 2nd edition, managed by P.P. Panaitescu, Publishing House
Academia, Bucharest, 1959.
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The feudal law of these times is characterised by beginnings of codifications,

founding their expression in the juridical monuments of XVII century, firstly, in the
codes of laws of Vasile Lupu, Romanian book of learning (1646) and Matei Basarab,
Rectification of law (1652), both being an original arrangement of Roman – Byzantine
law to the realities of Romanian life. Acknowledging as sources of law, the law and
customs, the Book …. makes a difference between world law, ius humanum and God
law, ius divinum and the law of human nature, ius naturale. The first concept
corresponds to positive law, the second to the canonic law, whereas the third, to the
idea of natural law. It makes an important step on the line of development of Romanian
juridical thought, approaching, although only implicitly, issues of a classical juridical
importance: principles of enforcement of laws, rights and obligations of individuals,
patrimony, field of obligations, successions, institutions of criminal law etc.
The second law, Rectification of law, has the same contents as the code of laws of
Vasile Lupu, to which it is added a part of canonic law from Byzantine law.
Feudal laws by excellence, these codes provided for the inequality of individuals
in front of law in a pyramidal medieval society, focused on multiple vassalage
relations, consolidating, simultaneously, a state heading when the lord aspired more
and more obviously to the position of Byzantine autocratic.
2. The theory of equity, rely the elaboration of codes

in the centuries XVIII-XIX
The crisis of aristocratic regime determines the occurrence of new forms of

government, of absolute monarchy, supported by lords such as Şerban Cantacuzino
(1640-1688)9 and Dimitrie Cantemir (1673-1723)10.
An important contribution to the development of juridical science in this period
was that of the patriotic lord and great scribe Dimitrie Cantemir, representative cultural
personality of his era who, by his wide and multilateral activity, as well as by these
advanced, laic and humanistic ideas, was one of the most important European science
people. Referring to his works that include as well researches in the field of juridical
sciences11, we should outline the signification of his contribution by knowing the
history of Romanian law, the scientific value of his theories and the manner of
presenting it12. Partisan of the ideas of the school of equity, supporter of the state of
law, where the lord himself is subject to laws and justice, for the sake of the people,
protector of law and justice towards the people and predecessor of illuminism, Dimitrie
Cantemir considered necessary the evolution of people by culture, with a view to
provide the social evolution and preparation of the conditions for the achievement of
reforms with a view to improve the situation of peasants. Dimitrie Cantemir supported
9
He was the lord of Romanian Country between 1678 and 1688.
10
He was lord of Moldavia (March-April 1693; 1710-1711) and great scribe of Romanian humanism.
11
Such as, Description of Moldavia (Descriptio Moldaviae), Academy Publishing House, Bucharest, 1973.
12
Roman origin of ancient law; receiving the Romano-Byzantine law; hereditary nature of lordship and
of succession to lord seat, supporting an enlightened monarchy relied on equity; origin of high
dignities; suzerainty and position of Romanian Countries in international relations.
94
from a historical perspective the traditions of hereditary monarchy in the Romanian

Countries, the subordination of aristocrats to central power and the independence of the
country towards the Ottoman Power, proving that the tribute which the lords of
Moldavia agreed to pay to Turks was only a sign of rendering, not a tribute of
submission.13 The absolute monarchy, the lordship that dominates alone, regarded by
Dimitrie Cantemir in the form of European enlightened absolutism, was not however a
monarchy of divine law, since, in his conception, the lord had to observe law and
consider the voice of vulgus and the whispers of herds. Consequently, he conceived
political history as a succession of monarchies, led by the laws of nature, with periods
of ascension and regress.
These ideas were reflected in Romanian written law at the end of XVII century
and the beginning of XIX century.14
Absolute monarchy, in the form of enlightened absolutism, was supported by the
annalists of the time15, in their works.
During the period of division of feudalism (end of XVIII century – first half of
XIX century) primary were the norms of the customs of ground, the norms of feudal
law, as well as the written norms. In parallel, it was developed the action of
codification of law, being removed the regional and municipal particularities. There
were however enforced as well the norms included in the charters and lord
establishments, with respect to financial organisation, the organisation of courts,
procedure of judgement16, adoption17, alienations of premises, gypsy servants18 etc.
The rulings of Fanariot lords included juridical norms concerning the state
organisation and social structure.19 They included advanced measures, with respect to
the organisation of administration, by introducing the waging of state officers and
mainly with respect to tributes, with a view to remove the abuses concerning the
determination and collection of it.20
Register of laws (1780) of Alexandru Ipsilanti, elaborated in Greek and Romanian,
reflects some authoritarian ideas concerning the state heading, equally taken over from
Byzantine law (Basilicans) and from the customs of ground and included in the scope
of defence of the privileges of feudals and their power (consolidation of ownership) a
range of improvements concerning the concerning the court organisation and
judgement procedure.
13
Traian Ionaşcu, Mircea Duţu, History of juridical science in Romania, Romanian Academy Publishing
House, Bucharest, 2014, p.20.
14
Register of laws (1780) and Code of Calimach (1817).
15
Ion Neculce and Mihail Cantacuzino.
16
Charter of Alexandru Ipsilanti in the Romanian Country from 1775.
17
Charter of Alexandru Moruzi in Moldovia from 1800.
18
Catholic charter in Moldavia from 1785.
19
Establishments of Constantin Mavrocordat from 1740 in the Romanian Country and 1743 in Moldavia.
20
Manual of laws of Mihail Fotino (Photinopoulos), written in neo-Greek, in three different draftings
(1765, 1766, 1777), it may be characterised as code of laws, treaty and legislative codification meant
to be adopted as legislation in the Romanian Country. It included excerpts from Basilicans and from
other Byzantine collections adapted to Romanian social realities. Meant to become an official Code,
the Manual from 1766 was used in Romanian Country and Moldavia only as simple private collection
of Byzantine law. In its drafting from the year 1777, where it is paid a special attention to the customs
of ground, it served to the drafting of the Register of laws.
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The civil code of Moldavia (1817) of Scarlat Calimach, having as source of

inspiration the Austrian Civil Code (1808) and maintaining some feudal traits, reflects
the beginnings of division of feudalism and constitution of capitalist relations. It
provides a wide juridical frame, which materialises the newest requirements of juridical
and political thought.
The Law of Caragea (1818), having as source of inspiration the custom of ground,
Basilicans and Register of Law, although it provided for the feudal relations and even
the rests of servitude, it included as well few new disposals, due to some sporadic
influences of the Code of Napoleon (1804).
A characteristic of bourgeoisie ideology was the modern concept of illuminism
which, following the instauration of a national state and the creation of a national
society, included all fields of social life. Therefore, illuminism represented a political-
cultural formula corresponding to the needs of renewal of feudal state and of
adjustment of it to the new economic development. The new formula intended to
prevent the revolutionary subversions, that had taken place in England and France and
to shape the medieval institutions in the spirit of the new social-economic requirements
and bourgeois claims.
The only solution was the enlightened absolutism, meant to modernise, by
reforms, a state crushed by social contradictions.21 The enlightened absolutism claims
new concepts and positions opposite to state and justice. The monarch exercises the
prerogatives in virtue of equity (and not divine), based on a contract concluded with its
people, to whom it has to provide happiness.
In its first form, illuminism developed in our country as a wide progressive
movement, the beginning of which was noticed in the Transylvanian School, by its
representatives: Samuil Micu (1745-1806), Gheorghe Şincai (1753-1816), Petru Maior
(1761-1821) and Ion Budai-Deleanu (1760-1820). They criticised the feudal structure
and the exploitation of peasants by aristocrats and bourgeois, supporting the need of
acknowledgement of equal political rights for the Romanians from Transylvania. Their
program claims, besides the elimination of bondage22, equal rights for all inhabitants,
political emancipation of Romanians, by acquiring the status of constitutional nation23
and not tolerated. Such claims relied, both on equity, and the right of Romanians
resulting from their number and proportion of duties incumbent upon them opposite to
the state.
On the same line, by Supplex Libellus Valachorum from 1791, Romanian
bourgeois from Transylvania asked for being instated in full citizenship rights, equal
rights with constitutional nations, proportional representation in the political life of the
country. This report was grounded, both on historical arguments, proving the authority
of Romanians opposite to all the other nations of the country and juridical
(constitutional)24 based on which one asked for proper rights in public life. We notice
that these aren’t new rights but a reinstate in the prior status (restitutio in integrum).
21
Traian Ionaşcu, Mircea Duţu, quoted work, p.23.
22
This was as well one of the objectives of reformist policy of Iosif II.
23
State component.
24
Romanians were the most numerous nation and with the highest number of duties.
96
In this context, it must be outlined the contribution of the first Romanian author of
juridical treaties, Vasile Vaida (1780-1835), who, in the three volumes approaching
Transylvanian civil law and his history (1824-1826)25, proved to be the partisan of the
ideas of Latin school, by the historical-juridical arguments brought in favour of Roman
origin and continuity of Romanians from Transylvania, as well as their claims and
social and national rights.
In juridical plan, a first manifestation of illuminism takes place in the form of
spreading the theory of equity, on which it shall rely the elaboration of codes in the
centuries XVIII-XIX. It will influence as well the activity of the jurists of the time,
such as: Petre Depasta, Greek annalist of Constantin Mavrocordat; Toma Cara,
translator of the books of Armenopol from 1804 and author of the tree parts of
Pandects (including the law of individuals); Andronache Donici, representative of the
new rationalist-metaphysical thinking, of the centuries XVII-XVIII and author of the
famous juridical manual, used as an authentic code of laws, until the adoption of the
Code of Scarlat Calimach; Damaschin Bojinca, personality with a wide juridical
culture; Christian Flechtenmacher26, one of the main authors of the Code of Calimach.
An important thinker of such times, in the Romanian Country, was also Naum
Râmniceanu (1764-1839) who, under the influence of the French Revolution and
Illuminism, supported the annulment of privileges, equality of all citizens and their
representation in the Public Assembly, by deputies, equal rights to learning, as well as
the other illuminated nations of Europe.
The illuminist conception entailed other important juridical demarches as well.
Therefore, the report of the Moldavian middle bourgeoisie, from 1822, entitled
Carbonaro Constitution27 reflected the influence of the ideology of lights and of the
ideas of Montesquieu, preoccupation to enforce equal rights for all categories of
aristocrats, as well as the maintenance of feudal relations in agrarian economy. The
report included almost accurate translations of the French declaration of rights28. As
for state organisation, the conception of authors relied on the restriction of the lordship
powers and acknowledgement of the law of Public Assembly, as representative body of
aristocracy of all categories, of effective heading of the country.
Based on the same illuminist ideas and with a view to develop juridical education,
the bourgeois conceptions about the state were amplified; it was gradually created a
scientific terminology; the juridical notions were advanced and works with high
scientific level were published. Therefore, the main characteristics of juridical sciences
in the century XVIII – the beginning of the century XIX-lea consisted in the
preoccupation of spreading juridical knowledge and creating a Romanian legislation
according to the requirements of Romanian people. Consequently, during the lordship
25
It was considered the first treaty of civil law drafted by a Romanian.
26
He considers that the development of national culture is a decisive factor for social and political
emancipation.
27
Whose main author was Ionică Tăutu (1798-1830), social-political thinker from the beginning of XIX
century in Moldavia, partisan of the ideas of French Revolution and active participant to the political
fights, being speaker of middle and small aristocrats and thus a predecessor of forty-eighters.
28
Law of property, freedom of consciousness, individual freedom, equality in front of law etc.
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of Constantin Mavrocordat (1711-1769)29 more consolidated forms of studying law

appeared, and during the times of Ioan Gheorghe Caragea (1812-1818)30 it was
constituted a position of Latin and jurist professor occupied by Nestor Craiovescu31,
author of a law course, highly appreciated by contemporaries.
The Charter from February 1816, of constitution of the position of professor of
laws teaching this science to those who want to learn it, included significant recitals,
since the science of law, both for judges, and for those summoned and eventually for
all people is useful, as one which, based on a natural principle, stands as the most
healthy support for humanity.
The Fanariot lords, like bourgeois, to whom juridical attributions were assigned,
knew the Byzantin and occidental legislations in original.
During the same period, it was manifested as well the wish of juridical
specialisation on superior schools.32
The development of capitalist relations influenced the development of the process
of systematising the law on subjects. Thus, at the College from Saint Sava, Constantin
Moroiu33 (1837-1918) was teaching Roman law34, criminal law and commercial law,
and at Mihăileană Academy from Iaşi it was made the proposal to present during the
classes the public legislation and private legislation of peoples. Between 1839-1840,
Petru Câmpeanu35 (1809-1893) sustained for the first time a course of public law and
theory of law, and Gheorghe Costaforu (1821-1876), the first rector of the University
of Bucharest, professor of civil law, published, in the form of a magazine, Historical
Magazine, including studies of civil law.
At the beginning of the century XIX the political-juridical conceptions of the era
encountered their expression in the Organic Rules, introduced by tsarist occupation, in
1831 in the Romanian Country and in 1832 in Moldavia. They were considered by
specialists our first constitution, since the state organisation relied on the principle of
separation of powers in the state. Thus, the legislative power is entrusted to the Public
Assembly, the executive power – to the lord, elected for life, and the court power – to
county courts, independent bodies. Also, one stipulated measures concerning the
organisation of the profession of lawyer. By the document entitled Science of
29
In the Romanian Country, he reigned six times: September 1730 - October 1730; 24 October 1731 -
16 April 1733; 27 November 1735 - September 1741; July 1744 - April 1748; c. 20 February 1756 - 7
September 1758 and 11 June 1761 - March 1763 and in Moldavia four times: 16 April 1733 - 26
November 1735; September 1741 - 29 June 1743; April 1748 - 31 August 1749 and 29 June 1769 - 23
November 1769.
30
Former Fanariot lord of Romanian Country he became famous for the first Code of laws from
Walachia bearing his name, Caradja Legislation.
31
Erudite aristocrat from Romanian Country, knowing the laws of the country and Roman-Byzantine law.
32
In this respect, in 1817 Gheorghe Bibescu and Barbu Ştirbei went to Paris, followed in 1820 by the
brothers Filipescu, Bălăceanu, Racoviţă, and the sons of Dinicu Golescu left to Switzerland.
33
Pioneer of national education, he was officer of Royal Army, with degree of captain. He participated to
the Russian-Turkish war against Ottoman Empire. He was one of the most important masons from
Romania and also a very active philatelist.
34
Deemed right of the country.
35
Of Transylvanian origin, professor of philosophy, successor of Eftimie Murgu.
98
collectivity dated 30 September 1831, published in the Official Gazette, it was issued
the registration certificate of Ilfov Bar36, further turned into the Bar of Bucharest.
During the revolutionary year 1848, the juridical science expressed the basic ideas
of the political acts of revolution concerning the state and law.
Thus, Nicolae Bălcescu (1819-1852) criticised acerbically the existent social-
juridical structures, supporting the need of a new and modern constitution, state
suzerainty, equal rights of states. In this respect, he supported with legal arguments, the
right of Romanian principalities to independence towards the Ottoman Empire, proving
that the so-called Capitulations were in fact, treaties of alliance, based on which suzerain
power was to provide to Romanian Countries military protection and support.37
By its form and contents, the Proclamation from Islaz (9/12 June 1848) was above
all political acts of the times, being considered an authentic constitution. Among the
social-economic claims, recorded in the program of Romanian revolution we state:
observance of the principles concerning freedom and equality; putting peasants in
possession of lands, with or without compensation; removal of feudal privileges;
overall tax contribution.
As for the rights of people and citizens, one drafted a range of petitions
concerning: removal of feudal ranks; abolishment of bondage; political equality of all
citizens of any nationality; securing the rights and freedoms of citizens; elaboration of
democratic reforms in administration, justice and army; enforcement of the principle of
justice and equality in exercising public functions.
As for the modernisation of political life, the program of Romanian revolution
includes a range of principles characteristic to bourgeois constitution: constitutional
monarchy; separation of powers in the state; ministerial responsibility; inamovibility of
judges; equality of all citizens opposite to laws; institution of national guards.
An important representative of this period of national renaissance, who expressed
his convictions, both in his scientific, historical and legal works, and in the reforms’
program targeting a modern state organisation, was Mihail Kogălniceanu (1817-1891).
In this respect, he stated that social evolution may be achieved by reforms, as well as
by the spread of culture. In the revolutionary program entitled Desires of national party
of Moldavia (Iaşi, 1848), drafted by him, measures and reforms were included finding
continuation, in the juridical form, in the Constitution Project for Moldavia, document
to which he had as well a significant contribution: removal of any ranks and personal
or birth privileges; equality in civil and political rights; Public Assembly to include all
states of society; lord elected by all states of society; ministerial responsibility and of
public officers; individual freedom, of domicile and press; equal and free school
education; incorporation of jury for political, criminal and press cases; introduction of
civil, commercial and criminal bourgeois registers; removal of beat to death and beat;
reform of county courts, inamovibility of judges, removal of county courts and special
commissions; freedom of cults; political rights for all inhabitants of Christian religion;
36
An authentic Board of lawyers, subscribed by the Great Logothete of Justice Iordache Golescu, where
are mentioned 22 lawyers ranged at the Divans from Bucharest, see Mircea Duţu, History of Bar of
Bucharest, Publishing House Herald, Bucharest, 2006, pp. 50 and the following.
37
Traian Ionaşcu, Mircea Duţu, quoted work, p.28.
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gradual emancipation of Jewish; secularization of monasteries’ fortunes; new norms

concerning policy and prisons; measures for removal of corruption.
Innovative political and juridical conceptions were presented as well by the lord
Alexandru Ioan Cuza (1859-1866), jurist. With Mihail Kogălniceanu will incorporate
the modern Romanian state, creating a range of reforms such as: agrarian reform
(putting peasants in possession of lands), electoral reform based on qualification (but
with a lower qualification), reform in education; modern state organisation,
development of national institutions, unification and modernisation of legislation by
adoption of civil code, criminal code, code of civil proceedings, code of criminal
proceedings.
In parallel, the social-economic and national claims of Romanians from
Transylvania in the revolutionary year 1848, were sustained with strong juridical
arguments by Avram Iancu38, Rake of mountains (1824-1872), being himself a good
knower of law. In this respect, on 20 December 1850 he bequeath all his movable or
immovable fortune, as support for the incorporation of an Academy of Laws, strongly
believing that the fighters with the weapon of law may impose the rights of the nation.39
A remarkable Romanian politician, historian, philosopher and jurist, university
professor, Simion Bărnuţiu (1808-1864) was one of the main organisers of the
revolution of 1848 in Transylvania. He participated to the National Meeting from Blaj
on 18/30 April 1848 and in May 1848. He conceived and shared his famous manifest
Proclamation from March 1848, presenting his principles, previously formulated,
starting with 1842, about Romanian nation and the fate of Romanians from
Transylvania. His social claims were indissolubly related to acquiring independence
and suzerainty of Romanian nation, acknowledgement of the nationality of Romanians,
observing the principles of equal rights of all nations living in Transylvania. He was a
partisan of national-idealist theory of equity putting it in accordance with the
requirement of the era, using it in the scope of satisfying the desires of social and
national release of Romanians from Transylvania, as well as democratic organisation of
Romanian national state. In his works, Dereptulu naturale privatu (1868) and
Dereptulu naturale publicu (1870), defining equity as primitive fontana and
conditioning validity of all positive law, he elaborated the practical precept according
to which, any honourable and noble man cannot observe but that positive law
corresponding to a national law.
As professor at the Mihăileană Academy (1855-1860) and then at the University
of Iaşi (1860-1864), Bărnuţiu educated people with new thinking, people who further
on asked for democratic reforms, universal vote, expropriation of aristocrat and
monasteries’ properties.
38
He was head in fact of the Motilor Country in the year 1849, leading the army of Transylvanian
Romanians, in alliance with Austrian Army, against Hungarian revolutionary troupes under the
heading of Lajos Kossuth.
39
Dr. Ioan Fruma, About Transylvanian juridical spirit, Transylvania Magazine, Organ of Astra, Sibiu,
February 1944, no.2, p.101.
100
Conclusions
The Romanian modern state, before becoming an institutional reality, was

imagined as a political project, of entire generations of tourists, thinkers, political
people. This project was outlined in the XVIII century. He continued in the XIX
century, when the juridical and political thinking created a program of reforms and
national emancipation, which outlines the project of modern Romanian state. In this
respect, the programs of the revolutions from 1821 and 1848, as well as of secret
political societies, between the two revolutions contributed to the clarification of the
political project.
In conclusion, we may assert that, in the first half of XIX century, the Romanian
society developed progressively, looking for new models and forms of organisation.
Between the reforming theoretical activity (reform projects, reports) and social-
political action (revolutions, secret societies), the official reform programs only
accelerated the achievement of this political project.
Bibliography
1. Academia Română, History of romanians, Univers Enciclopedic Publishing house,
Bucharest, 2015;
2. Andreea Rîpeanu, Romanian state and law history, Universul Juridic Publishing house,
Bucharest, 2011;
3. Andreea Rîpeanu, Romanian state and law history, Universul Juridic Publishing house,
Bucharest, 2012;
4. Andreea Rîpeanu, Romanian state and law history, Cermaprint Publishing house,
Bucharest, 2015;
5. Emil Cernea, Romanian state and law history, Universitatea din Bucureşti Publishing
house, Bucharest, 1976;
6. Nicolae Iorga, History of Romanian, Datina românească Publishing house, Vălevii de
Munte, 1925;
7. Nicolae Iorga, History of Romanians, Revolutionaries, Vol. 8, Bucharest, 1938;
8. Nicolae Iorga, Studies on the Romanian Middle Ages, Ştiinţifică şi Enciclopedică
Publishing house, Bucharest, 1984;
9. Traian Ionaşcu, Mircea Duţu, History juridical sciences in Romania, Academia Română
Publishing house, Bucharest, 2014.
101
Conference Paper
THE MEANINGS OF THE CONCEPT

OF RESPONSABILITY
Maria-Irina GRIGORE-RĂDULESCU*
Abstract: The concept of responsibility has been the subject of many doctrinal concerns,
analysed as a general principle of law or as an individual attitude of a person, as a collective
attitude specific to a community or civil society as a whole or as an attitude of state or private
organizations. Therefore, responsibility has a key role to play in ensuring an individual and
social balance, in maintaining an appropriate organizational climate and according to the
expectations of members of society and, in essence, in achieving and maintaining social order.
Keywords: moral responsibility, legal responsibility, corporate social responsibility.
Introduction
Without claiming to be exhaustive and falling within the scope of concerns for the
analysis of the concept of liability, we consider that the principle of liability is one of
the general principles of law, whose approach cannot be made in isolation1, but in
conjunction with other principles of law2. Here are included the principle of legality,
the principle of freedom and equality, the principle of justice, fairness and justice.
Law involves the manifestation of subjects of law according to their own will and
in full freedom, so that another necessary concept and correlated with responsibility is
freedom, which cannot be ignored. If there is no freedom, there is no responsibility, if
there is no freedom, there can be no right. Equally, the freedom-responsibility binomial
works in both directions of conditioning, so we can say that if there is no responsibility,
there is no freedom and if there is no responsibility, there is no right.
From this perspective, seen as a social phenomenon, responsibility gives
expression to a triple reporting of the freedom of subjects of law to themselves, to
society and to nature. Freedom thus appears as a fundamental condition of
responsibility, since man has the freedom to integrate into society, but also the
obligation to get involved, to act in society, in a conscious subordination to the law.
Responsibility can be either before or after an action.When the individual designs and
assumes obligations and attributions, the responsibility is anterior, and when he
* Associate Professor PhD, Faculty of Law, Ecological University of Bucharest, Romania, e-mail:
radulescuirinaro@yahoo.com.
1
M.-I. Grigore-Rădulescu, Teoria generală a dreptului, Ediţia a III-a, revised and added, Ed. Universul
Juridic, Bucharest, 2019, p. 69.
2
For developments on the general principles of law, see, N. Popa, Teoria generala a dreptului, 3rd
Edition, Ed. C. H. Beck, Bucharest, 2008, pp. 111-120; S. Cristea, Teoria generala a dreptului, 3rd
Edition, Ed. C. H. Beck, Bucharest, 2018, pp. 11-14; M.-I. Grigore-Rădulescu, op. cit., 2019, pp. 66-
71; I. Boghirnea, Teoria generala a dreptului, 3rd Edition, revised and updated, SITECH Publishing
House, Craiova, 2013, pp. 47-52.
102
assumes responsibility for the consequences of that action, the responsibility is

posterior.
Responsibility involves the conscious subordination of personal interests to the
general ones, formed and developed by achieving a concordance between individual
and general aspirations, expressed through diverse and complex social norms.
Consequently, liability can take many forms, namely legal liability, social
responsibility, moral liability, political liability, civic liability.
Since the legal norms sanction the conduct of subjects of law who violate the legal
provisions, the liability as a dimension of law follows3. This happens because it
expresses the act of employment of the subject of law who assumes the consequences
of his action or inaction, assessed according the degree and content of the process of
compliance and enforcement of legal rules or their application.
The liability confirms that natural or legal persons have the representation of the
existence of legal norms and social norms, in general, irresponsibility, respectively the
attitude of violation of legal and / or social norms being legally sanctioned, if legal
norms have been violated or according to the specifics of different other social norms
(moral, ethical, deontological, customary, political, religious).
In this context, it is clear that legal responsibility is not to be confused with legal
liability4, as liability involves the individual act of the subject of law to comply with
the provisions of legal norms. The legal liability is a legal relationship established by
the legal norm between the subject that violated the legal name and state, represented
by one of its law enforcement bodies.5
1. Legal responsibility and moral responsibility.

The relationship between responsibility and accountability
The word responsibility has its origins in Latin and includes two words derived
from this language, namely, the verb "spondeo"6 - to solemnly promise, guarantee, and
answer for someone and the noun "res" - thing reason, cause, reality, business, matter,
interest, and advantage.7
It follows that liability is a way of freely consenting of natural or legal persons to
the system of rules, which generates the obligation that the mentioned subjects of law
assume on their own initiative, therefore by self-constraint. If the system of norms we
refer to is represented by the system of legal norms, obviously the responsibility will be
a legal one, but if the system of norms taken as reference is the system of moral norms,
3
M.-I. Grigore-Rădulescu, op. cit., 2019, p. 69.
4
I. Vida, I. C. Vida, Teoria generală a dreptului, Ed. Universul Juridic, Bucharest, 2016, pp. 174.
5
C. Voicu, A. C. Voicu, Teoria generală a dreptului, revised and added, Ed. Universul Juridic,
Bucharest, 2019, p. 253; S. Cristea, op. cit., p. 183; M.-I. Grigore-Rădulescu, op. cit., 2019, p. 219; Al.
Bleoancă, Teoria generală a dreptului, Ediţie 2, revised and added, Ed. C.H. Beck, Bucureşti, 2018, p.
140; I. Boghirnea, op. cit., p. 172.
6
In the verbis contract of the old Roman law, "spondeo" meant the solemn binding of the debtor to his
creditor, in order to execute a certain obligation assumed by the contract.
7
https://dreptmd.wordpress.com/cursuri-universitare/etica-si-deontologia-juridica/etica-si-responsabilitatea-
sociala/ [accessed on 27.05.2021].
103
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or, more extensively, any other system of norms in the sphere of normativity. Social,
previously mentioned, then the responsibility will be moral, respectively one specific to
the respective system of social norms (ethical, deontological, political, religious
responsibility, etc.).
Both legal norms and moral norms concern the relations between the individual and
the community and refer to social coexistence8, but in the case of legal responsibility,
self-constraint manifested by relating the subjects of law to the sanctioning system
contained in legal norms and applied, if necessary. , on the coercive path of the state,
while the moral self-restraint refers to the moral normativity, whose sanctioning system
can be materialized in the public disgrace, irony, marginalization, etc.
Reconsidering the role and importance of moral responsibility, as the first way of
reporting and awareness of the reception and observance of a system of norms and
values, we appreciate that morality influences both the process of elaboration and the
process of law enforcement, as one's conscience must be the first forum, which holds
us responsible.9
Legal responsibility and moral responsibility must be correlated with two other
fundamental concepts of the theory of law, namely legal responsibility and moral
responsibility, for a clearer understanding and to achieve the necessary conceptual
delimitations.
Therefore, two conceptions have emerged regarding the relationship between
responsibility and liability, namely one that supports the existence of a relationship of
independence and one that states the existence of a relationship of interdependence.
In the opinion of the proponents of the existence of a relationship of independence
between responsibility and liability, the concept of responsibility closely linked to
human nature and based on the free manifestation of individual will, regardless of the
existence of legal rule and the application of coercive force.
According to the concept of the existence of a relationship of interdependence
between responsibility and liability, legal liability is the consequence of the responsible
commission of an unlawful legal act, i.e. violation of a legal rule of positive law by
conduct contrary to the legal rule, in full knowledge of the facts.
We can say, therefore, that the observance and execution of legal provisions, as a
form of realization of the law, is also a way of expressing legal and even moral
responsibility. It confirms, once again, the preventive, educational and formative role
of law, obviously doubled by moral normativity, as a mechanism of legal and moral
self-education.
Although preceding the legal responsibility, derived from the legal normative
system, the moral responsibility has a double determination: on the one hand,
generated by the moral norms, but at the same time, determined by the legal norms.
Many of these norms are based on high morality, to the rank of legal norm, obligatory
and legally sanctioned, so that, indirectly, the morally responsible attitude is formed by
8
I. Craiovan, Tratat de teoria generală a dreptului, second edition, revised and added, Ed. Universul
Juridic, Bucharest, 2009, p. 78; S. Popescu, Teoria generală a dreptului, Ed. Lumina Lex, Bucharest,
2000, p. 125.
9
https://dreptmd.wordpress.com/cursuri-universitare/etica-si-deontologia-juridica/etica-si-responsabilitatea-
sociala/ [accesed 27.05.2021].
104
reference only to the legal norms with a high content of morality. Therefore, legal
norms and moral norms establish behavioural models10, sometimes identical, given the
finality pursued by both categories of enunciated norms.
Legal responsibility is analysed by reporting the conduct of the subject of law to
the legal obligations prescribed by legal rules and to the compliance and proper
execution of these obligations, as mentioned above, but based on a prior report on
moral law, as a preliminary step to reporting to the legal norm.
In turn, legal liability must be correlated with moral liability, both of which are
forms of social liability, in order to preserve the fluency of this analysis. Obviously,
legal liability, in any of the forms it takes11, is more serious than moral liability, but the
psychological impact of relevance on the person can be debatable. There may be
situations in which legal liability coexists with moral liability, but the psychological
impact of the latter is greater than that of legal liability, although it is more serious.
Social responsibility, which encompasses the entire sphere of achieving social
norms, takes several specific forms, including legal liability and moral liability, which
are subject to analysis.
Moral liability is different from legal liability, which arose only after the
formation of the state and the law, in that the former involves the violation of
obligations, which do not correspond to correlative rights. Moreover, is not likely to be
sanctioned by state coercion, but is rebuked by the community; in the case of legal
liability, the wrongful act implies the possibility of resorting to the exercise of the
coercive force of the state12.
Being the most complex form of social responsibility, legal liability is based on a
series of specific principles, with moral, ethical, religious, political or economic
connotations. All of those are related to the general principles of law; appear as a
species of them, as they do not all the norms that make up the positive law have an
impact in the area of legal liability.
In the specialized literature were analysed as fundamental principles of legal
liability13:
- the principle of liability for acts committed with guilt;
- the principle of justice of the sanction;
- the principle of personal responsibility;
- the principle of speed of accountability;
- the principle of legality of legal liability;
- the principle of uniqueness of legal liability;
- the principle of proportionality of legal liability;
- the principle of subjective responsibility;
- the principle of operability of legal liability, etc.
10
I. Craiova, op. cit., p. 78; s. Popescu, op. cit., p. 126; M.-I. Grigore-Rădulescu, op. cit., p. 81.
11
M.-I. Grigore-Rădulescu, op. cit., pp. 220-223.
12
M.-I. Grigore-Rădulescu,op. cit., p. 70.
13
Gh. Bobos, Teoria generală a dreptului, Ed. Argument, Cluj-Napoca, 1999, p. 337; C. Voicu, A. C.
Voicu, op. cit., p. 255.
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2. Corporate social responsibility
The concept of corporate social responsibility (CSR) has gone through a long
evolutionary process, in parallel with the development of models for its perception and
assumption.
Internationally, it has been approved and entered into force SR ISO 26000: 2011-
Guidelines on social responsibility, an international standard that provides guidelines
on social responsibility, intended for organizations of all types, public or private sector,
countries developed, developing or in transition.
However, the standard does not contain obligations and is not used for certification,
but only includes recommendations, based on which, each organization is invited to
become more socially responsible, by implementing and applying this standard.
According to the international standard SR ISO 26000: 2011, social responsibility
means "the responsibility of an organization for the impact of its decisions and
activities on society and the environment, manifested by an ethical and transparent
behaviour that contributes to sustainable development. This includes health and the
well-being of the society, takes into account the expectations of the interested parties,
respects the laws in force and is in accordance with the international norms of
behaviour, is integrated in the whole organization and applied in its relations”.
The guidelines contained in the SR ISO 26000: 2011 standard include the best
practices of social responsibility identified in the public and private sectors, as well as
the relevant declarations and conventions of the United Nations and the UN14
specialized agencies.
At EU level, the concept of corporate social responsibility aims at "a company's
way of integrating social, environmental and economic concerns into the value system
and organizational culture, to ensure strategic and operational decision-making in a
transparent and accountable manner, and to therefore establish better practices within
the company, to create wealth and improve society”.15
In summary, we can say that corporate social responsibility designates the system
of principles, actions and good practices through which a company or institution is
involved in a society, in order to ensure a positive impact of its activity and contribute
to the sustainable development of that company.16
Thus, corporate social responsibility requires participation in the welfare of
individual and social life, in meeting the social, economic and environmental
objectives of all legal subjects, being a space for interaction between the state,
represented by its bodies and institutions, private companies and civil society.17
14
ISO has entered into an agreement with the International Labour Organization to ensure compliance
with labour standards and the International Bureau of Conventions of this organization, as well as with
the Organization for Economic Co-operation and Development, in order to develop the ISO 26000
standard.
15
http://ec.europa.eu/enterprise/csr [accessed at 28.05.2021].
16
See https://blogunteer.ro/2012/09/ce-inseamna-responsabilitatea-sociala-corporativa/ [accessed at
28.05.2021].
17
Among the most important areas of action for CSR programs, we mention: health, environment,
education, disadvantaged groups, local, regional or even global community,
106
In support of this idea, we reiterate that, in order to govern the internal and
external dimension of the relationship between the company and the community, the
European Union has developed a set of principles that will help direct and develop this
relationship in the spirit of sustainability.
The responsibility of companies in the internal relationship with their employees is
to contribute to improving the quality of life, in and out of the workplace, to ensure a
safe and healthy work environment, as well as the opportunity for professional and
personal development. They also need to give them equal opportunities by virtue of the
principle of non-discrimination and to monitor their degree of satisfaction in
compliance with its obligations to employees.
In external relations, companies must respect human rights, contribute to local and
regional economic development, minimize the effects of their activities on the
environment and natural resources and contribute to the realization of social
jurisdiction through education, this being seen as a social resource.
Conclusions
As a social phenomenon, law has complex purposes related to ensuring the

functionality, regulation and self-regulation of the social system, resolving conflicts in
human relations, defending and promoting the fundamental values of society,
fundamental human rights and freedoms. Consequently, the legal norms have the role
of guiding and determining the behaviours of the subjects of law, and, in case of need,
their observance can be ensured by force of coercion of the state.
Human conduct may comply with the provisions contained in the legal rules, in
which case the conduct is lawful or legal, or, on the contrary, may be contrary to them,
in which case the conduct is unlawful or illegal. Regardless of the form of conduct,
only conscious, responsible behaviour has legal value.
As it results from the completely argumentative approach, we consider that legal
responsibility is the specific expression of legal and even moral responsibility, starting
from the idea that each subject of law must assume and bear the consequences of his
deeds.
The evolution over time of the concept of responsibility, has led to the emergence
of new forms of its manifestation, in addition to the classic forms such as legal
responsibility, moral responsibility, religious responsibility, political responsibility,
ethical responsibility, deontological responsibility.
Thus, against the background of globalization, intensification and diversification
of communication procedures, the specificity and correlation of individual interests and
general interests, new forms of responsibility have emerged, such as corporate social
responsibility, based on a set of principles, resulting from the international standard. ,
namely transparency, ethical behaviour, respect for stakeholders, respect for the rule of
law, respect for international rules of conduct, respect for human rights.
Corporate social responsibility contributes to sustainable development in the
economic, social and environmental fields, so that all state bodies and institutions, all
individuals and legal entities, all companies in general, must promote and demand
socially responsible behavior.
107
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Bibliography:
1. Bleoancă Al., Teoria General a Dreptului, Edition 2, revised and added, Ed. C.H. Beck,
Bucharest, 2018;
2. Bogos Gh. Teoria Generala a Dreptului, Argument Publishing House, Cluj-Napoca,
1999;
3. Boghirnea I., Teoria Generala a Dreptului, 3rd Edition, revised and updated, SITECH
Publishing House, Craiova, 2013;
4. Craiovan I., Tratat de teoria generala a dreptului, Second Edition, revised and added,
Universul Juridic Publishing House, Bucharest, 2009;
5. Cristea S., Teoria Generala a Dreptului, 3rd Edition, C. H. Beck Publishing House,
Bucharest, 2018;
6. Grigore-Rădulescu M.-I., Teoria Generala a Dreptului, 3rd Edition, revised and added,
7. Popa N., Teoria Generala a Dreptului, 3rd Edition, Ed. C. H. Beck, Bucharest, 2008;
8. Popescu S., Teoria Generala a Dreptului, Lumina Lex Publishing House, Bucharest,
2000;
9. Vida I., Vida I. C., Teoria Generala a Dreptului, Universul Juridic Publishing House,
Bucharest, 2016;
10. Voicu C., Voicu A. C., Teoria Generala a Dreptului, Revised and Added Edition,
11. http://ec.europa.eu/enterprise/csr
12. https://blogunteer.ro/2012/09/ce-inseamna-responsabilitatea-sociala-corporativa/
108
CODING OF CUSTOM RULES IN DIPLOMATIC LAW

Corina Florenţa POPESCU*
Abstract: Custom represents a second source of international law, which represents a

usage with a definite obligation that followed by a state even though no formal written
agreement exists to define the obligations. Many of the rules that originally governed such
diverse areas as jurisdiction over territory, freedom of the high seas and the privileges and
immunities of states and diplomats. Determining a customary rule of law can be a very difficult
process. By definition, a customary rule must have two distinct elements: a material element
defined by system etic practice over time and a psychological element, the opinio juris or
evidence that states consider the practice as a legal obligation. Repeated practice does not offer
sufficient evidence of the existence of a legal custom.
Keywords: international custom; the material element; the psychological element; the
state practice; evidence for existence of a custom rule.
Introduction
Formal sources of international law are forms of expression of the norms of this
right1, listed officially, but not limitable, in Article 38 of the ICJ Statute2, to which are
added, according to judicial doctrine and practice, other sources, namely unilateral acts
of states3, acts of organizations international law4 or the domestic law of the states.5
Along with the treaty and the general principles of law, custom is a major source
of international law, but not for states that have repeatedly objected to the formation of
customary rules and if they are not contrary to the rules of jus cogens.6
Most of the norms of classical international law formed by custom, including
those specific to diplomatic law, which is why the legal force of custom is equal to that
of the treaty7, the customary rules subsequently registering in treaties or general
codification.8
* Associate Professor PhD, Faculty of Law, Ecological University of Bucharest, Romania, e-mail:
coripopescu@yahoo.com.
1
C. F. Popescu, M.-I. Grigore-Rădulescu, Drept internaţional public. Noţiuni introductive, 3rd edition,
revised and added, Ed. Universul Juridic, Bucharest, 2017, p. 33; V. Creţu, Drept internaţional public,
Ed. Fundaţiei România de Mâine, Bucharest, 2006, p. 44.
2
P. M. Dupuy, Droit international public, 5e edition, DALL, 2000, pp. 341-342.
3
R. Miga-Beşteliu, Drept internaţional public, vol. I, ed. a 2-a, Ed. C. H. Beck, Bucharest, 2010, pp. 73-
74.; C. F. Popescu, M.-I. Grigore-Rădulescu, op. cit., pp. 44-46;
4
P. M. Dupuy, op.cit., pp. 362-372; R. Miga-Beşteliu, op. cit., 2010, p. 71; C. F. Popescu, M.-I. Grigore-
Rădulescu, op. cit., 2017, p. 46.
5
R. Miga-Beşteliu, op. cit., 2010, p. 74; C. F. Popescu, M.-I. Grigore-Rădulescu, op. cit., 2017, p. 47.
6
Conclusion of the work of the Study Group on the fragmentation of International Law. Difficulties
arising from the diversification and expansion of International Law, adopted by the International Law
Commission at its fifty-eighth session (A/61/10, para. 251).
7
P. M. Dupuy, op. cit, p. 301; C. F. Popescu, M.-I. Grigore-Rădulescu, op. cit., 2017, p. 37.
8
P. M. Dupuy, op. cit., p.302.
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The custom is a long practice, respected by states with the conviction that it is
mandatory9. Usually, the customs are characterized by a general practice, but there may
be situations in which the customs have only a regional or local character, depending
on the geographical area of reception of the practice.10
In the current contemporary context, most international regulations are enshrined
in treaties, but because of the representative majority of members of the international
community11, the custom continues to be a source of law. We mention here especially
"in those areas where divergent interests of states have not made possible a codification
of customary rules, as well as in areas of the practice of relations between states in
which it has not reached that stage to impose a regulation by conventional means”.12
1. The historical evolution of diplomatic customs
Until the 15th century, European diplomacy had an ad-hoc (temporary) and
itinerant character, the first to use permanent missions being Louis XIV in order to
facilitate and maintain political collaboration.
It was only after the Peace of Westphalia of 1648 that the practice of permanent
diplomatic missions13 between European states14 became widespread. Those missions
evolved and developed in relation to the needs of promoting and representing the
interests of states in all areas of international activity.
In the matter of diplomatic law, the rule according to which the diplomatic agent is
inviolable is one of the first customary norms. To this end, from 22 November 1922 to
24 July 1923, at the initiative of France, Great Britain and Italy, a conference15 held in
Lausanne, Switzerland, to identify a solution to the situation created by the
denunciation of the Peace Treaty concluded in 1920, in Sèvre, by Turkey. During the
conference, a member of one of the delegations was assassinated, but Switzerland
refused to take responsibility for the lack of protection, arguing that the victim had not
been notified as a participant in the international conference. It follows that the Swiss
9
C. F. Popescu, M.-I. Grigore-Rădulescu, op. cit., 2017, p. 38; C. F. Popescu, Cutuma în dreptul
internaţional public, Ed. Universul Juridic, Bucharest, 2011, p. 47.
Art. 38.1 b) of the Statute of the International Court of Justice defines international custom as “evidence
of a general practice, accepted as law”, which imposes the distinction between custom and custom.
The custom can become right, only if the state recognizes this quality (M.-I. Grigore-Rădulescu,
General Theory of Law, 3rd Edition, revised and added, Ed. Universul Juridic, Bucharest, 2019, p.
120). In international law, including diplomatic and consular law, this condition requires that at least
two states agree that a custom may be the rule of law.
10
C. F. Popescu, M.-I. Grigore-Rădulescu, op. cit., 2017, p. 38.
11
R. Miga Beşteliu, Drept internaţional public, vol. I, Ed. All Beck, 2005, Bucharest, p. 68.
12
D. Popescu, Drept internaţional public, Ed. Universităţii Nicolae Titulescu, Bucharest, 2005, p. 31.
13
The first permanent diplomatic missions were established in Venice, Constantinople and Rome.
14
D. Mazilu, op.cit. p.121.
15
Romania, Yugoslavia, Japan, Greece and Turkey, the United States as an observer, as well as
Albania, Bulgaria, the Netherlands, Norway, Portugal, Spain and Sweden, attended the conference as
guests. The Soviet delegation was allowed to participate only in debates on military issues. , territorial
and the regime of the straits.
110
State had undertaken to comply with the customary rule under which the host State is
required to provide protection to participants in an international conference.16
In addition, in the jurisprudence of the C.I.J., we can identify a series of decisions
concerning either the right of asylum or the competences, rights and obligations of the
representatives of the states.
Following the asylum dispute between Colombia and Peru, C.I.J. she was notified
in 1949 and asked to rule on the nature of diplomatic asylum and the interpretation of
the 1928 Pan American Convention on the Right to Asylum Granted in Diplomatic
Missions. Peruvian diplomat Victor Raul Haya de la Torre has been accused of plotting
a coup against national authorities, and the Colombian Embassy in Lima has offered
him diplomatic asylum. In the Court's view, the asylum was granted outside the rule of
law, as Colombia did not have the capacity to assess the acts committed by the Haya de
la Torre, and the 1928 Pan American Convention must be interpreted restrictively,
meaning that the Peruvian state was not required to grant free passage to the person,
who was granted asylum. Consequently, it rejected Colombia's approach to interpreting
the decision.17
Also in 1949, C.I.J. notified by France, which opened the case for the protection of
French nationals and persons protected by France in Egypt, but this case was
extinguished in 1950, as the Egyptian government abandoned its policy of taking
action against French nationals and of protected persons.
Preventive diplomacy has also emerged, which aims to prevent a crisis or war
between states that have disputes in certain areas administered by force and coercion,
local, national or regional institutions and procedures. Their administration are non-
existent or unable to resolve conflicts that peaceful, in accordance with the rules and
principles of public international law.
2. Codification of customary rules by the Vienna

Convention on Diplomatic Relations
The Vienna Convention on Diplomatic Relations of 196118 and the Vienna

Convention on Consular Relations of 196319 codified the customary rules on
diplomatic and consular matters.20
The preamble to those conventions states that the rules of customary international
law must continue to govern matters, which are not expressly covered by the
16
I. M. Anghel, Dreptul diplomatic şi dreptul consular, Ed. Universul Juridic, Bucharest, 2011, p. 38.
17
ICJ Reports, 1950, p. 266.
18
Find text of the convention in C. F. Popescu, M.-I. Grigore-Rădulescu, Drept internaţional public.
Instituţii, Ed. Universul Juridic, Bucharest, 2015, pp. 287-297.
19
Find text of the convention in C. F. Popescu, M.-I. Grigore-Rădulescu, op. cit., 2015, pp. 298-319.
20
At European level, the 1967 European Convention on Consular Functions was concluded, which,
compared to the 1963 Vienna Convention, is more limited, because only European states are parties
to this convention, and because its object of regulation it covers only consular functions and does not
deal with the general problems, as a whole, of consular activity.
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conventional provisions.21 At the same time, although there is the Convention on

Consular Relations, when solutions are not expressly formulated in this Convention,
rules of diplomatic law may be used.
Diplomatic relations, part of international relations, have different characteristics
determined by the form of their exercise and their purpose22. Thus, pursuant to art. 2 of
the Vienna Convention of 1961, the establishment of diplomatic relations between
states and the sending of permanent diplomatic missions is done with the mutual
consent of the states. Diplomatic relations are established in order to ensure the
conditions for maintaining the political dialogue between the subjects of international
law through permanent diplomatic missions.23
Although the rules for establishing diplomatic relations are not detailed in the
1961 Vienna Convention, in the practice of states, there are clear legal rules that
differentiate the procedure for establishing diplomatic relations from the procedure for
sending a diplomatic mission.
Considered, unanimously, as the most important codification of international
law24, the Vienna Convention contains the set of rules recognized by states as having
legal force in their relations, as well as new rules to facilitate international relations.
We emphasize, however, that it does not cover all customary rules, so that custom
remains a source of diplomatic law for those matters not governed by the Convention25,
so that both the provisions of the 1961 Vienna Convention and customary rules enjoy a
general, uniform and non-discriminatory application.26
If the practice of sending permanent missions has not become a customary rule, as
States are not obliged to send or receive permanent diplomatic missions, the need to
conclude an agreement between the two States for the establishment of the diplomatic
mission, following the consent of the two States, constitutes a customary norm codified
by the Vienna Convention of 196127. Also in this regard, we emphasize the need for an
agreement between the accrediting state and the accrediting state when a mission
changes its rank, transfers its headquarters or a consular office becomes an embassy or
a special mission or a temporary mission becomes a permanent.
21
G. Schwarzenberger, A manual of international law, v-ed, 1967, pp. 98-99. The Preamble to the
Codification Convention states that the rules of customary international law must continue to govern
matters, which are not expressly covered by the provisions of the Convention.
22
I. M. Anghel, op.cit., 2011, pp. 22-25.
23
After 1990, a new form of representation of the Holy See emerged with state entities with which it has
no diplomatic relations, namely the Representation of the Holy See to the Government of the Russian
Federation and the Representation of the Holy See to the Palestinian National Authority. Although,
formally, these missions do not have the capacity to maintain official political relations, in fact, their
activity is similar to that carried out by diplomatic missions. (I. M. Anghel, op.cit., P. 62).
24
B. Selejan- Guţan, L. M. Crăciunean, Drept internaţional public, Ed. Hamangiu, Bucharest, 2008,
p.182.
25
C.F. Popescu, M.-I. Grigore-Rădulescu, op. cit., 2015, p. 54.
26
I. M. Anghel, op.cit. 2011, p. 39.
27
Article 2 of the 1961 Vienna Convention provides that the establishment of diplomatic relations
between States and the sending of permanent diplomatic missions shall be by mutual consent.
112
The establishment of the seat of a permanent diplomatic mission is not regulated

by the Vienna Convention28, the practice of the states being that the diplomatic mission
does not necessarily have to be based in the capital of the accrediting state.29
The embassy30 is the most important permanent diplomatic mission, having the
highest rank and being led by an ambassador.31
Beyond the doctrinal controversy32, we consider that the naming and classification
of heads of mission, by express or tacit acceptance, has become a customary rule, and
the head of mission, as a rule, ambassador, represents the interests of a state, in
accordance with the preamble to the Preamble Convention. Havana of 1928 on
diplomatic officials33. In this context, it should be noted that the institution of the
charge d'affaires, as head of mission, also asserted itself in the usual way, like the right
of the ambassador to request an audience with the head of state.
One of the institutions of great theoretical but especially practical relevance is the
institution of inviolability, immunity, privileges and diplomatic facilities, whose
customary rules have been codified by the Vienna Conventions on Diplomatic Law,
but are also found in the domestic law of states.
Among the conventional provisions mentioned, we include, in terms of
inviolability, the following:
- The inviolability of the premises of the mission, of the archives and diplomatic
documents, the organs of the state of residence having the right to enter the premises of
the mission only with the consent of its head;
- The freedom to communicate with its government, including through diplomatic
couriers, by encrypted messages, using a radio broadcasting station with the consent of
the State of residence;
- Inviolability of official correspondence and diplomatic bag;
- The inviolability of the person of the diplomatic courier.
Among the immunities of the staff of the diplomatic mission, customarily formed
and developed, then codified by the Vienna Convention, we mention that diplomatic
agents and their family members benefit from the immunity of the person and private
home, documents, correspondence and property. In the absence of a conventional
obligation on States to grant diplomatic immunity to members of administrative,
technical and service personnel, by virtue of reciprocity and international courtesy,
they shall also be granted certain immunities and privileges if they are not nationals of
the receiving State.34
28
On the Conference for the Adoption of the Convention, the proposal of Switzerland to register as an
obligation of States to establish the seat of a permanent diplomatic mission by consent was rejected.
29
For example, Romania had its first embassy in Germany, after World War II, in Cologne, and although
Israel has, its capital in Jerusalem, Romania has its embassy in Tel Aviv.
30
The Apostolic Enunciator has the role of diplomatic mission, but also of religious representation, the
head of the mission having the title of apostolic nuncio (I. M. Anghel, op.cit., 2011, p. 29).
31
C.F. Popescu, M.-I. Grigore-Rădulescu, op. cit., 2015, p. 58.
32
L. Cavare, Le droit international public positif, tom.II, II-éme edition, Ed. Pedone, Paris, 1962, p.18.
33
I. M. Anghel, op.cit. 2011, p. 27.
34
C.F. Popescu, M.-I. Grigore-Rădulescu, op. cit., 2015, p. 80; art. 37 alin. (2) of the Vienna Convention
of 1961.
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The preamble to the 1961 Vienna Convention states, "Since ancient times, the
peoples of all countries have recognized the status of diplomatic agents". This
provision is an argument for recognizing the customary rules on immunities, privileges
and diplomatic facilities, including the right to hoist the national flag and to place the
coat of arms of the accrediting state on the premises of the mission, residence and
means of transport of its chief.35
The institution of immunity from jurisdiction was asserted in the customary way,
having its origin in the era of absolute monarchies, when the diplomatic agent was
considered the very word of the monarch who sent him.36
Diplomatic agents enjoy immunity from criminal, civil and administrative
jurisdiction, as well as immunity from enforcement, pursuant to art. 31 of the 1961
Vienna Convention, a principle according to which the jurisdiction of the State of
residence does not apply to diplomatic agents, however, does not exclude their obligation
to respect the law of the State in whose territory they are and carry on their activity.
Immunity from criminal jurisdiction based on a customary rule, accepted by most
governments, and is complete, in the sense that no exceptions allowed from this rule37,
as is the case with immunity from civil jurisdiction. Having its origins in an ancient
rule, immunity from civil jurisdiction did not benefit from uniformity of application, so
that it was recognized late compared to immunity from criminal jurisdiction.
The tax treatment applied to the diplomatic agent and the diplomatic mission is
another customary rule that has been codified by the Vienna Convention. It involves
the exemption of taxes and duties on the buildings of the mission and residence, on
taxes levied for official documents drawn up, on customs duties on objects and
products intended for the use of the diplomatic mission, in an amount established by
normative acts of the state of residence.38
Conclusions
Due to its technical and political nature, the codification ensures the clarity of the
law and contributes to the specification of the legal name and its content, thus ensuring
the elimination of possible conflicts between rules, but also a certain orientation of
international law, which does not exclude coexistence with customary law. it retains its
role and importance, which justifies its need.
35
The provisions of the 1961 Vienna Convention expressly stipulate that the main immunities, privileges
and diplomatic facilities are the immunity from jurisdiction and execution; the inviolability of the
diplomatic mission, its assets and archives, as well as the personal immunity of the diplomatic agent,
his residence and property, freedom of movement, freedom of communication, tax and customs
exemption, exemption from social security obligations, use of the national flag and emblem,
procurement of mission premises and housing for its members.
36
In latin „legatus habetur pro persona mittentis; majestatem eius a quo missus est repraesentat”
37
I. M. Anghel, op.cit., 2011, p. 239.
38
B. Selejan-Guţan, L. M. Crăciunean, op.cit., 2008, p. 186.
114
In practice, treaties may codify pre-existing rules of customary international law,

but may also provide the basis for the formation of new customary rules based on the
rules contained in those treaties.
The codification of diplomatic law by the Vienna Convention of 1961 provided a
conventional basis for the whole subject of diplomatic law, specifying the existing
rules and offering solutions to controversial issues. At the same time, we highlight the
essential contribution of the regulation in the Codification Convention as regards the
accuracy of the regulation, as it clearly sets out the beneficiaries and the conditions of
application.
Customary international law continues to govern matters, which are not expressly
provided for in the provisions of the Convention, as well as relations between States
not party to that Convention.
Bibliography:
1. Anghel I. M., Dreptul diplomatic şi dreptul consular, Universul Juridic Publishing
House, Bucharest, 2011;
2. Cavare L., Le droit international public positif, tom.II, II-éme edition, Ed. Pedone, Paris,
1962;
3. Cretu V., Dreptul International Public, Romania of Tomorrow Foundation Publishing
4. Dupuy P. M., Dreptul International Public, fifth Edition, DALL, 2000;
5. Grigore-Rădulescu M.-I., Teoria Generala a dreptului, 3rd Edition, revised and added,
6. Miga-Beşteliu R., Drept international public, vol. I, ed. 2nd, Ed. C. H. Beck, Bucharest,
2010;
7. Miga Beşteliu R., Drept international public, vol. I, Ed. All Beck, 2005;
8. Popescu C. F., Grigore-Rădulescu M.-I., Drept international public. Introductory
notions, 2nd Edition, revised and added, Universul Juridic Publishing House, Bucharest,
2017;
9. Popescu C. F., Grigore-Rădulescu M.-I., Drept international public. Istitutii, Universul
Juridic Publishing House, Bucharest, 2015;
10. Popescu C. F., Cutuma in dreptul international public, Universul Juridic Publishing
11. Popescu D., Drept international public, Nicolae Titulescu University Publishing
12. Selejan- Guţan B., Crăciunean L. M., Drept international public, Hamangiu Publishing
115
Conference Paper
SOME OBSERVATIONS ON CYBER SECURITY

AS A COMPONENT OF THE EUROPEAN UNION
SECURITY POLICY
Gianina-Anemona RADU*
Abstract: Europeans today face a security landscape in flux, impacted by evolving threats
as well as other factors including climate change, demographic trends and political instability
beyond our borders. Globalisation, free movement and the digital transformation continue to
bring prosperity, make our lives easier, and spur innovation and growth. But alongside these
benefits come inherent risks and costs. They can be manipulated by terrorism, organised crime,
the drugs trade and human trafficking, all direct threats to citizens and our European way of
life. Cyber-attacks and cybercrime continue to rise. The EU’s existing framework for protection
and resilience of critical infrastructures has not kept pace with evolving risks. Member States
have exercised their margin of discretion by implementing existing legislation in different ways.
The resulting fragmentation can undermine the internal market and make cross-border
coordination more difficult – most obviously in border regions.
Keywords: cyber security, hybrid threats, cybercrime.
Introduction
The issue of human security is not only the basis of personal security, but is
related to the protection of fundamental rights. Globalisation, free movement and the
digital transformation continue to bring prosperity, make our lives easier, and spur
innovation and growth. But alongside these benefits come inherent risks and costs.
They can be manipulated by terrorism, organised crime, the drugs trade and human
trafficking, all direct threats to citizens and our European way of life. Cyber-attacks
and cybercrime continue to rise. Security threats are also becoming more complex:
they feed on the ability to work cross-border and on inter-connectivity; they exploit the
blurring of the boundaries between the physical and digital world; they exploit
vulnerable groups, social and economic divergences. Attacks can come at a moment’s
notice and may leave little or no trace; both state and non-state actors can deploy a
variety of hybrid threats1; and what happens outside the EU can have a critical impact
on security inside the EU.
The COVID-19 crisis has also reshaped our notion of safety and security threats
and corresponding policies. It has highlighted the need to guarantee security both in the
* Senior Lecturer PhD, Police Academy “Al. I. Cuza”, Faculty of Legal and Administrative Sciences,
Bucharest, Romania, gianina_anemona@yahoo.com.
1
While definitions of hybrid threats vary, it aims to capture the mixture of coercive and subversive
activity, conventional and unconventional methods (i.e. diplomatic, military, economic, technological),
which can be used in a coordinated manner by state or non-state actors to achieve specific objectives
(while remaining below the threshold of formally declared warfare). See JOIN(2016) 18 (final).
116
physical and digital environments. The rise of the Internet of things and the increased
use of artificial intelligence will bring new benefits as well as a new set of risks. Online
dependency has opened the door to a wave of cybercrime.2 ‘Cybercrime-as-a-service’
and the underground cybercriminal economy give easy access to cybercrime products
and services online. Criminals quickly adapt to use new technologies to their own ends.
For example, counterfeit and falsified medicines have infiltrated the legitimate supply
chain of pharmaceuticals.3 The exponential growth of child sexual abuse material
online4 has shown the social consequences of changing patterns of crime.
The crisis has also shown existing threats can envolve in new circumstances. At
the same time, low rates of confiscation allow criminals to continue expanding their
criminal activities and infiltrating the legal economy. 5 Criminals and terrorists find it
easier to access firearms, from the online market and through new technologies such
as 3-D printing.6 Use of Artificial Intelligence, new technologies and robotics will
further increase the risk that criminals exploit the benefits of innovation for
malicious ends7.
The EU’s existing framework for protection and resilience of critical
infrastructures8 has not kept pace with evolving risks. Increasing interdependencies
mean that disruptions in one sector can have an immediate impact on operations in
others. As our economy and society increasingly move ever more online, risks such
as these grow all the more acute. The legislative framework needs to address this
increased interconnectedness and interdependency, with robust critical
infrastructure protection and resilience measures, both cyber and physical.
Essential services, including those based on space infrastructures must be
adequately protected against current and anticipated threats, but also be resilient.
This implies the ability of a system to prepare and plan for, absorb, recover from,
and more successfully adapt to adverse events. At the same time, Member States
have exercised their margin of discretion by implementing existing legislation in
different ways. The resulting fragmentation can undermine the internal market and
make cross-border coordination more difficult – most obviously in border regions.
Operators providing essential services in different Member States have to comply
with different reporting regimes.
2
According to some projections, costs of data breaches will reach $5 trillion annually by 2024, up from
$3 trillion in 2015 (Juniper Research, The Future of Cybercrime & Security).
3
One 2016 study (Legiscript) estimated that globally only 4% of internet pharmacies operate lawfully,
with EU consumers top targets for the 30,000-35,000 illicit online pharmacies active online.
4
EU Strategy for a more effective fight against child sexual abuse, COM(2020) 607.
5
Report on Asset recovery and confiscation: Ensuring that crime does not pay, COM(2020) 217.
6
In 2017, firearms were used in 41% of all terrorist attacks (Europol, 2018).
7
In July 2020, French and Dutch law enforcement and judicial authorities, alongside Europol and
Eurojust, presented the joint investigation to dismantle EncroChat, an encrypted phone network used
by criminal networks involved in violent attacks, corruption, attempted murders and large-scale drug
transports.
8
Directive 2016/1148 concerning measures for a high common level of security of network and
information systems across the Union, OJ L 194, 19.7.2016; Council Directive 2008/114/EC on the
identification and designation of European critical infrastructures and the assessment of the need to
improve their protection.
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1. Cybersecurity
The number of cyber-attacks continues to rise9. These attacks are more

sophisticated than ever, come from a wide range of sources inside and outside the EU,
and target areas of maximum vulnerability. State or state-backed actors are frequently
involved, targeting key digital infrastructures like major Cloud providers.10 Cyber risks
have emerged as a significant threat to the financial system as well. The move to
connected devices will bring great benefits for users: but with less data stored and
processed in data centres, and more processed closer to the user ‘at the edge’11,
cybersecurity will no longer be able to focus on protecting central points.12
In 2017, the EU put forward an approach to cybersecurity with resilience-building,
rapid response and effective deterrence at its core.13 The EU now needs to make sure
that its cybersecurity capabilities keep pace with reality, to deliver both resilience and
response.
Exploring new and enhanced forms of cooperation between intelligence services,
EU INTCEN, and other organisations involved in security should be part of efforts to
enhance cybersecurity, as well as combatting terrorism, extremism, radicalism and
hybrid threats.
Given the ongoing roll-out of the 5G infrastructure across the EU and the
potential dependence of many critical services on 5G networks, the consequences of
systemic and widespread disruption would be particularly serious. The process put in
place by the Commission’s 2019 Recommendation on the Cybersecurity of 5G
networks14 has now led to specific Member State action on the key measures set out in
a 5G toolbox.15.
One of the most important long-term needs is to develop a culture of cybersecurity
by design, with security built into products and services from the start. An important
contribution to this will be the new cybersecurity certification framework under the
Cybersecurity Act16. The framework is already under way, with two certification
schemes already in preparation, and priorities for further schemes to be defined later
this year. Cooperation between the EU Agency for Cybersecurity (ENISA), the data
9
https://www.enisa.europa.eu/publications/enisa-threat-landscape-report-2018
10
Distributed Denial of Service attacks remain a permanent threat: Major providers had to mitigate
massive DDoS attacks such as an attack against Amazon Web services in February 2020.
11
Edge computing is a distributed, open IT architecture that features decentralised processing power,
enabling mobile computing and Internet of Things (IoT) technologies. In edge computing, data is
processed by the device itself or by a local computer or server, rather than being transmitted to a data
centre.
12
Communication on A European strategy for data, COM(2020) 66 final.
13
Joint Communication on Resilience, Deterrence and Defence: Building strong cybersecurity for the
EU, JOIN (2017) 450.
14
Commission Recommendation on the Cybersecurity of 5G networks, COM(2019) 2335 final. The
Recommendation foresees its review in the last quarter of 2020.
15
See Report by the NIS cooperation group on the implementation of the Toolbox, of 24 July 2020.
16
Regulation 2019/881 on ENISA (the European Union Agency for Cybersecurity) and on information
and communications technology cybersecurity certification (Cybersecurity Act).
118
protection authorities and the European Data Protection Board17 is of key importance
in this area.
The issue of creating a common cyber security unit has been raised to provide
structured and coordinated operational cooperation. This could include a mutual
assistance mechanism in times of crisis at EU level. Building on the implementation of
the Blueprint recommendation18, the Joint Cyber Unit could build trust between the
different actors in the European cybersecurity ecosystem and offer a key service to
Member States.
Also important are common rules on information security and on cybersecurity for all
EU institutions, bodies and agencies. The aim should be to create mandatory and high
common standards for the secure exchange of information and the security of digital
infrastructures and systems across all EU institutions, bodies and agencies. This new
framework should underpin a strong and efficient operational cooperation on cybersecurity
across the EU institutions, bodies and agencies, centred on the role of the Computer
Emergency Response Team (CERT-EU) for the EU institutions, bodies and agencies.
Given its global nature, building and maintaining robust international
partnerships is fundamental to further prevent, deter and respond to cyber-attacks. The
framework for a joint EU diplomatic response to malicious cyber activities (“cyber
diplomacy toolbox”)19 sets out measures under the Common Foreign and Security
Policy, including restrictive measures (sanctions), which can be used against activities
that harm its political, security and economic interests.
2. Cybercrime
Technology brings new opportunities for society. It also offers new tools for the
judiciary and for law enforcement. But at the same time, it opens doors for criminals.
Malware, the theft of personal or business data by hacking, and the shutting off of
digital activity causing financial or reputational damage, are all on the rise. The
resilient environment created by strong cybersecurity is the first defence. Law
enforcement authorities need to be able to work in the sphere of digital investigations
with clear rules to investigate and prosecute crimes and affording victims the necessary
protection. This work should build on the Joint Cybercrime Action Task Force in
Europol and the Law Enforcement Emergency response Protocol created to coordinate
response to large-scale cyber-attacks. Effective mechanisms enabling public-private
partnerships and cooperation are also key.
An essential step is also the full implementation of the current legal framework20.
Europol and the EU Agency for Cybersecurity ENISA must analyze the feasibility of
an EU cybercrime-related rapid alert system that could ensure the flow of information
17
Communication on Data protection as a pillar of citizens’ empowerment and the EU’s approach to the
digital transition - two years of application of the General Data Protection Regulation, COM(2020) 264.
18
Commission Recommendation 2017/1584 on coordinated response to large-scale cybersecurity
incidents and crises.
19
http://data.consilium.europa.eu/doc/document/ST-9916-2017-INIT/en/pdf
20
Directive 2013/40/EU on attacks against information systems.
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and swift reactions when cybercrimes surge, with application of the Council of
Europe’s Budapest Convention on cybercrime, which is an effective, well-established
framework that allows all countries to identify what systems and communication
channels they need to put in place to be able to work effectively with each other.
As society uses new technological developments to strengthen the economy and
society, criminals can also look to exploit these tools to negative ends. For example,
criminals can use artificial intelligence to detect and identify passwords or to simplify
the creation of malware, to exploit images and audio that can be then used for identity
theft or fraud.
Law enforcement and justice practitioners need to adapt to new technology.
Technological developments and emerging threats require law enforcement authorities
to have access to new tools, acquire new skills and develop alternative investigative
techniques. To complement legislative actions aiming at improving cross-border access
to electronic evidence for criminal investigations, the EU can help law enforcement
authorities to develop the necessary capacity to identify, secure and read the data
needed to investigate crimes and to use that data as evidence in court. The Commission
will explore measures to enhance law enforcement capacity in digital investigations,
defining how to make the best use of research and development to create new tools for
law enforcement; and how training can offer the right skill set to law enforcement and
the judiciary. This will also include providing stringent scientific evaluations and
testing methods through the Commission’s Joint Research Centre, as well as ensure
that artificial intelligence, space capabilities, Big Data and High Performance
Computing are integrated into security policy in a way which is effective both in
fighting crimes and in ensuring fundamental rights.
Artificial intelligence could act as a powerful tool to fight crime, creating
enormous investigative capabilities by analysing large amounts of information and
identifying patterns and anomalies.21 It can also provide concrete tools, such as to help
identify online terrorist content, discover suspicious transactions in the sales of
dangerous products or offer assistance to citizens in emergencies. Realising this
potential means bringing together research, innovation and users of artificial
intelligence with the right governance and technical infrastructure, actively involving
the private sector and academia. It also means ensuring the highest standards of
compliance with fundamental rights while ensuring an effective protection of citizens.
In particular, decisions impacting individuals must be subject to human review and
comply with the relevant applicable EU law.22
Electronic information and evidence is needed in about 85% of investigations into
serious crimes, while 65% of the total requests go to providers based in another
jurisdiction.23 The fact that traditional physical traces have moved online further
expands the gap between the law enforcement and criminals’ capabilities. Putting in
21
For example, in financial crimes.
22
This means compliance with existing legislation, including the General Data Protection Regulation
(EU) 2016/679 as well as the Data Protection Law Enforcement Directive (EU) 2016/680 regulating
the processing of personal data for detecting, preventing investigating and prosecuting criminal
offences or the execution of criminal penalties.
23
Commission SWD(2018) 118 final.
120
place clear rules for cross-border access to electronic evidence for criminal
investigations is essential. This is why swift adoption by the European Parliament and
Council of the e-evidence proposals is key to provide practitioners with an efficient
tool. Cross-border access to e-evidence through multilateral and bilateral international
negotiations is also key, to establish compatible rules at international level24.
Access to digital evidence also depends on the availability of information. If the
data is erased too quickly, important evidence may disappear, so that the possibility to
identify and locate suspects and criminal networks (as well as victims) no longer exists.
On the other hand, data retention schemes raise questions of protection of privacy.
Depending on the outcome of the cases pending before the European Court of Justice,
the Commission will assess the way forward on data retention.
Access to Internet domain name registration information (‘WHOIS data’)25 is
important for criminal investigations, cybersecurity and consumer protection. However,
access to this information is becoming more difficult, pending the adoption of a new
WHOIS policy by the Internet Corporation for Assigned Names and Numbers (ICANN).
The Commission will continue to work with the ICANN and the multi-stakeholder
community to ensure that legitimate access seekers, including law enforcement, can
obtain efficient access to WHOIS data in line with EU and international data protection
regulations. This will include assessing possible solutions, including whether legislation
may be necessary to clarify rules for accessing such information.
Today, a substantial part of investigations against all forms of crime and terrorism
involve encrypted information. Encryption is essential to the digital world, securing
digital systems and transactions and also protecting a series of fundamental rights,
including freedom of expression, privacy and data protection. However, if used for
criminal purposes, it may also mask the identity of criminals and hide the content of
their communications. The Commission will explore and support balanced technical,
operational and legal solutions to the challenges and promote an approach which both
maintains the effectiveness of encryption in protecting privacy and security of
communications, while providing an effective response to crime and terrorism.
3. Countering illegal content online
More and more, core threats to citizens such as terrorism, extremism or child
sexual abuse rely on the digital environment: this calls for concrete action and a
framework to ensure respect for fundamental rights.
An essential first step is swiftly concluding the negotiations on the proposed
legislation on terrorist content online26 and ensuring its implementation. Strengthening
voluntary cooperation between law enforcement and the private sector in the EU
24
In particular, the Second Additional Protocol to the Council of Europe ‘Budapest’ Convention on
Cybercrime and an agreement between the EU and the United States on cross-border access to e-
evidence.
25
Stored in databases maintained by 2.500 registry and registrar operators based all around the world.
26
Proposal on preventing the dissemination of terrorist content online, COM(2018) 640, 12 September
2018.
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Internet Forum is also key to fight the misuse of the internet by terrorists, violent
extremists and criminals. The EU Internet Referral Unit in Europol will continue to
play a crucial role in monitoring the activity of terrorist groups online and the action
taken by platforms,27 as well as in further developing the EU Crisis Protocol28.
To prevent and counter the spread of illegal hate speech online, the Commission
launched in 2016 the Code of Conduct on countering illegal hate speech online, with a
voluntary commitment by online platforms to remove hate speech content. The latest
evaluation shows that companies assess 90% of flagged content within 24 hours and
remove 71% of the content deemed to be illegal hate speech.
The EU Internet Forum will also facilitate exchanges on existing and developing
technology to address the challenges related to child sexual abuse online. Tackling
child sexual abuse online is at the heart of a new Strategy to step up the fight against
child sexual abuse29, which will seek to maximise the use of tools available at EU level
to fight against these crimes. New topics should also be addressed such as algorithms
or online gaming.30
4. Hybrid threats
The security environment has undergone profound changes in recent years. In

these circumstances, and given the challenges to security and stability in the southern
and eastern neighborhood of the European Union, there is a need to adapt and
strenghen the capacity to ensure security, countre hybrid threats and esure
resilience.The EU approach to hybrid threats is set out in
According to the 2016 Joint Framework31 and the 2018 Joint Communication on
bolstering hybrid resilience32 this concept refers to the complex of subversive and
influential activities, conventional and unconventional (diplomatic, military, economic,
technological), which can be used in coordination by state and non-state actors to
achieve specific objectives, remaining below the level of a war formally declared.
From th epoint of view of technology we have, as hybrid threats, disruptive
thereats and agrressions in the cyber environment.
Disruptive threats are a type of threat that often involves the use of high-tech tools
or sophisticated methods of accompishment to reduce the opponent’s advantages in key
areas.
A category of these fields is the one related especially to the cyber environment
that includes communications, capabilities to collect (sensors), information processing
and dissemination, the ability to direct different types of weapons, etc. An attack in the
cyber environment can lead to the decommissioning of automated systems, often
27
Europol, November 2019.
28
A Europe that protects - EU Crisis Protocol: responding to terrorist content online. (October 2019).
29
EU Strategy for a more effective fight against child sexual abuse, COM(2020) 607.
30
Terrorists are increasingly using the messaging system of gaming platforms for exchanges and young
terrorists also re-play violent attacks in video games.
31
Joint Framework on Countering Hybrid Threats – a European Union response, JOIN (2016) 18.
32
Increasing Resilience and Bolstering Capabilities to Address Hybrid Threats, JOIN (2018) 16.
122
without being able to identify the source of the problem or to take countermeasures.
Another category of domains is represented by those related to the informational and
moral environment. This includes information operations (INFOOPS) ans
psychological operations (PSYOPS). Disruptive attacks can use methods and
technological means that generate such a degree of confusion that the target does not
understand the nature or sourse of the threat.
Aggressions in the cyber environment – in the conditions of the modern operational
environment, information and communication technology is a sine qua non for eny type
of power, military, political or economic. The dynamics of actions related to the cyber
environment is very high, and their importance in the context of military operations is
overwhelming. Therefore, we consider that the specific threats in this field are of first
rank in the range of hybrid type threats. High-tech military powers, based almost
exclusively on cyber capabilities, have some vulnerabilities that can be exploited by
clearly inferior opponents. They may act either directly on the military information
system present in the conflict zone or on the information and security system of the States
providing military power. Cyber attacks in the conflict zone can be executed on computer
and military communications networks and can have various objectives, such as
interrupting/banning the connection, cyber espionage or even entering false information
into the system. Regarding the manner of manifestation of the threat in the territory of the
states generating military force (homeland), a possible scenario is the attack on compiter
networks that manage process of strategic importance (electricity distribution
management system, national telecommunications system, interbank communication
system, etc). The takeover of such system by cyber terrorist can generate devastating
effects, staring from the paralysis of the attacked field of activity nand to its manipulation
in the interest of the attacker. Regardless of the target, the threat in the cyber environment
manifests itself in a very large dynamic starting from identifying the vulnerabilitues of
the attacked sustem, continuing with the attack or implementing the computer virus and
degenerating into takeing control over the attacked system or altering its functioning.
Paradoxically, the technological advancement that society wants in order to increase the
efficiency of activities of any kind is the one that creates vulnerabilities that can be
exploited by individuals or groups with criminal intentions. The best solution that can
eliminate this type of threat remains the stimulation and education of human resources, a
situation that will lead to ensuring superiority in the cyber environment and securing the
benefits of technology33.
The European Center of Excellence for Combating Hybrid Threats34 was
established in Helsinki at the initiative of Finland, with the aim of supporting Member
States’efforts to combat hybrid threats by strengthening civilian and military
capabilities, improving the resilience of states and their institutioins, deepening NATO-
EU cooperation in combating hybrid threats, sharing the expertise of practitioners,
academia and business with Member States and thei institutions. Without being an EU
or NATO instrument, the Center benefits from their support, representing a bridge of
communication, evaluation and analysis.
33
https://cssas.unap.ro/ro/pdf_studii/modalitati_de_contracarare_a_amenintarii_hibride.pdf .
34
https://www.hybridcoe.fi/
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Whereas responsibility for countering hybrid threats lies primarily with Member
States – due to the intrinsic links with national security and defence policies – some
vulnerabilities are common to all Member States and some threats extend across
borders, such as targeting cross-border networks or infrastructure. It must be presented
an EU approach to hybrid threats that integrates the external and internal dimension in
a seamless flow and brings the national and EU-wide considerations together. This
must cover the full spectrum of action – from early detection, analysis, awareness,
building resilience and prevention through to crisis response and consequence
management. To develop situational awareness, the Commission services and the
European External Action Service will explore options to streamline information flows
from different sources, including Member States, as well as EU agencies such as
ENISA, Europol and Frontex.
Conclusions
A number of EU instruments and sector specific strategies35 have been set up to

further develop operational law enforcement cooperation between Member States. One
of the main EU instruments supporting law enforcement cooperation between Member
States is the Schengen Information System, used to exchange data on wanted and
missing persons and objects in real time. The results have been felt in the arrest of
criminals, seizures of drugs and the rescuing of potential victims.36 However, the level
of cooperation could still be improved through streamlining and upgrading the
available instruments. Most of the EU legal framework underpinning operational law
enforcement cooperation was designed 30 years ago. A complex web of bilateral
agreements between Member States, many outdated or underused, risks fragmentation.
In smaller or landlocked countries, law enforcement officers working across borders
have to carry out operational actions following, in some cases, up to seven different
sets of rules: the result is that some operations, such as hot pursuits of suspects over
internal borders, simply do not happen. Operational cooperation on new technologies
such as drones are also not covered by the current EU framework.
Operational effectiveness can be supported by specific law enforcement
cooperation, which may also help to provide key support to other policy goals – such
as providing security input for the new assessment of foreign direct investment. The
Commission will look at how a Police Cooperation Code might support this. Member
States’ law enforcement authorities have increasingly made use of support and
expertise at EU level, while EU INTCEN has played a key role in promoting the
exchange of strategic intelligence between Member States Intelligence and Security
Services providing intelligence situational awareness in favour of EU institutions.37
Europol can also play a key role in expanding its cooperation with third countries to
35
Such as the EU Maritime Security Strategy Action Plan which led to important achievements with the
cooperation on coast-guard functions between relevant EU Agencies.
36
The EU fight against organised crime in 2019 (Council, 2020).
37
EU INTCEN serves as the only gateway for Member States Intelligence and Security Services to
provide intelligence-led situational awareness to the EU.
124
counter crime and terrorism in coherence with other EU external polices and tools.
However, Europol today faces a number of serious constraints – notably as regards the
direct exchange of personal data with private parties – which hinders it from effectively
supporting Member States in combating terrorism and crime. Europol’s mandate is
now being assessed to see how it should be improved to ensure that the Agency can
fully perform its tasks. In this context, relevant authorities at EU level (such as OLAF,
Europol, Eurojust and the European Public Prosecutor’s Office) should also cooperate
more closely and improve the exchange of information.
Another key connection is with the further development of Eurojust to maximise
the synergy between law enforcement cooperation and judicial cooperation. The EU
would also benefit from more strategic coherence: EMPACT38, the EU policy cycle for
serious and international organised crime, provides a criminal intelligence-led
methodology for authorities to jointly tackle the most important criminal threats
affecting the EU. It has resulted in important operational results39 in the past decade.
Based on practitioners’ experience, the existing mechanism should be streamlined and
simplified to better address the most pressing and evolving criminal threats for a new
Policy Cycle 2022-2025.
Bibliography:
1. Directive 2016/1148 concerning measures for a high common level of security of
network and information systems across the Union, OJ L 194, 19.7.2016.
2. Council Directive 2008/114/EC on the identification and designation of European critical
infrastructures and the assessment of the need to improve their protection.
3. EU Strategy for a more effective fight against child sexual abuse, COM(2020) 607.
4. Report on Asset recovery and confiscation: Ensuring that crime does not pay,
COM(2020) 217.
5. Directive 2016/1148 concerning measures for a high common level of security of
network and information systems across the Union, OJ L 194, 19.7.2016; Council
Directive 2008/114/EC on the identification and designation of European critical
infrastructures and the assessment of the need to improve their protection.
6. Communication on A European strategy for data, COM(2020) 66 final.
7. Joint Communication on Resilience, Deterrence and Defence: Building strong
cybersecurity for the EU, JOIN (2017) 450.
8. Commission Recommendation on the Cybersecurity of 5G networks, COM(2019) 2335
final. The Recommendation foresees its review in the last quarter of 2020.
9. Report by the NIS cooperation group on the implementation of the Toolbox, of 24 July 2020.
10. Regulation 2019/881 on ENISA (the European Union Agency for Cybersecurity) and on
information and communications technology cybersecurity certification (Cybersecurity Act).
11. Commission Recommendation 2017/1584 on coordinated response to large-scale
cybersecurity incidents and crises.
12. Directive 2013/40/EU on attacks against information systems.
13. EU Strategy for a more effective fight against child sexual abuse, COM(2020) 607.
38
EMPACT stands for European Multidisciplinary Platform Against Criminal Threats.
39
https://data.consilium.europa.eu/doc/document/ST-7623-2020-INIT/en/pdf.
125
Conference Paper
14. https://cssas.unap.ro/ro/pdf_studii/modalitati_de_contracarare_a_amenintarii_hibride.pdf
15. https://www.hybridcoe.fi/
16. European Multidisciplinary Platform Against Criminal Threats.
17. https://data.consilium.europa.eu/doc/document/ST-7623-2020-INIT/en/pdf.
18. https://www.enisa.europa.eu/publications/enisa-threat-landscape-report-2018
19. http://data.consilium.europa.eu/doc/document/ST-9916-2017-INIT/en/pdf
20. A Europe that protects - EU Crisis Protocol: responding to terrorist content online.
126
COLLECTIVE REDRESS AND REPRESENTATIVE

ACTIONS IN THE COLLECTIVE INTEREST
OF CONSUMERS, IN THE LIGHT
OF RECENT TRENDS IN EU LAW
Juanita GOICOVICI*
Abstract: Collective redress mechanisms continue to rise significant interrogations for legal
practitioners, in the context of the recent entering into force of Directive (EU) 2020/1828 on
representative actions for the protection of the collective interests of consumers, which requires EU
Member States to organize a system of representation actions aimed to the protecting of the collective
interests of consumers against professionals’ infringements of EU regulations applicable to B2C
contracts, including cessation orders and remedial measures. The paper analyses the salient
intricacies brought by the entering into force of the new set of norms, while accentuating the fact that
the Directive empowers qualified entities designated as such by Member States to bring actions for
obtaining a cessation order and / or actions for obtaining a repair order, including compensation or
replacement, on behalf of a group of consumers who have been harmed by a trader about whom it is
alleged to have infringed one of the EU legal acts set out in the Annex to the Directive. As regards the
eligibility criteria for qualified entities, the Directive distinguishes between qualified entities that have
the right to bring actions in the Member State in which they have been designated (internal
representation actions) and the qualified entities that have the right to bring actions in any another
Member State (cross-border representation actions). For domestic actions, a qualified entity will
have to meet the criteria set out in the law of its designating Member State, while for cross-border
actions, it will have to meet the harmonized criteria set out in the Directive.
Keywords: collective redress, representative actions, consumer, Directive 2020/1828,
qualified entity.
Introduction
Collective redress mechanisms in business to consumer litigation continue to rise

significant interrogations for legal practitioners, becoming more stringent in the context
of the recent entering into force of Directive (EU) 2020/1828 on representative actions
for the protection of the collective interests of consumers1, which requires EU Member
States to organize a system of representation actions aimed to the protecting of the
collective interests of consumers against professionals’ infringements of EU regulations
applicable to B2C contracts, including cessation orders and remedial measures.
The present study attempts to explore the applicability of the main provisions of
Directive (EU) 2020/1818, which empowers qualified entities designated as such by
* Lecturer, PhD., Babeş-Bolyai University of Cluj-Napoca (Romania), juanita.goicovici@law.ubbcluj.ro.

1
Directive (EU) 2020/1828 is expected to be transposed in national legal systems by 25 December
2022 and will become applicable to collective representation actions in the field of B2C litigation from
25 June 2023 onwords.
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Conference Paper
Member States to bring actions for obtaining a cessation order and / or actions for
obtaining a repair order, including compensation or replacement, on behalf of a group
of consumers who have been harmed by a trader about whom it is alleged to have
infringed one of the EU legal acts set out in the Annex to the Directive.
While setting specific eligibility criteria for qualified entities, the Directive
distinguishes between qualified entities that have the right to bring actions in the
Member State in which they have been designated (internal representation actions) and
the qualified entities that have the right to bring actions in any another Member State
(cross-border representation actions2). For domestic actions, a qualified entity will have
to meet the criteria set out in the law of its designating Member State, while for cross-
border actions, it will have to meet the harmonized criteria set out in the Directive.
As a measure to protect against abusive litigation, the Directive provides clear
rules on the allocation of legal costs in a representation action for redress3, based on the
„loser pays” principle (the litigating party who has lost the action will be required to
bear the procedural expenses and procedural costs), while additionally, in an attempt to
avoid imbricating interests or potential conflicts of interest or even collision of
interests, it imposes a set of transparency requirements on qualified entities, in
particular as regards their financing by third parties.
This paper thus aims to set forth the sequential analysis of the main structural
features of the provisions on representation actions referred to in the salient corpus of
Directive (EU) 2020/1828 on representative actions for the protection of the collective
interests of consumers.
Representative actions pleading for the respect of collective consumer rights may
seek injunctive measures or, under certain procedural circumstances, redress measures4.
As for the first, injunctive measures are described by specialized literature, as measures
2
Brigitte Haar, „Collective Action between Regulatory Goals and Individual Claimants’ Rights –
Collective Redress Mechanisms in EU Member States as Points of Departure for Procedural
Innovation”, Goethe-University Frankfurt, Faculty of Law Research Paper No. 5/2017, available at
SSRN: https://ssrn.com/abstract=2990634, accessed on 06.05.2021; Tiltmann Hertel, „Shaping the
boundaries of collective redress in Germany – a glimpse of the future under an EU representative
action regime?”, published on 26.11.2020, available at https://www.herbertsmithfreehills.com/latest-
thinking/shaping-the-boundaries-of-collective-redress-in-germany-%E2%80%93-a-glimpse-of-the-
future, accessed on 06.05.2021.
3
Alexandre Biard, „Collective Redress in the EU: A Rainbow Behind the Clouds?”, ERA Forum, May
2018, DOI: 10.1007/s12027-018-0509-4, available at SSRN: https://ssrn.com/abstract=3184899 ,
accessed on 06.05.2021.
4
For comments on the scope of the new EU Directive, which is designed to protect the collective interests
of consumers by providing for representative actions against national and cross-border infringements by
companies, see Markus Langen, Sonja Hoffmann, Alexandra Diehl, Carolin Kuehner, „The new EU
representative action from a German perspective – not a sudden, but a gradual revolution”, published on
15.12.2020, available at https://www.whitecase.com/publications/alert/new-eu-representative-action-
german-perspective-not-sudden-gradual-revolution , accessed on 24.05.2021; the authors of this
comments underline that: „The key message coming from the EU legislator is that the Directive is
intended to merely supplement the existing procedural opportunities and specifically not to change
applicable national substantive law. It should only be possible to bring a representative action if Union
law or national law actually provides for the substantive claim to be asserted. The Directive is specifically
not intended to enable the imposition of punitive damages on any infringing company. Nor does the
Directive contain more detailed provisions with regard to the (international) jurisdiction of the courts over
cross-border representative actions; such jurisdiction is to be determined in accordance with the EU law
already in force, i.e. Regulation (EC) No. 44/2001 (Brussels I Regulation).”
128
aiming to protect the collective interests of consumers5, irrespective of whether any

actual loss or patrimonial damage is suffered by individual consumers and irrespective
of whether the unfair commercial practice consisted in intentionally committed actions
or, contrarily, was the result of professionals’ inexcusable negligence. Obviously, such
measures can require a practice to be ceased or, on the other versant, can require
traders to take specific actions, such as providing consumers with information that was
previously missing or has been culpably omitted. Redress measures, in contrast, are
defined by scholars as measures requiring a trader to provide consumers6 actually
affected by an infringement of relevant mandatory provisions of EU law with
particularly concrete remedies, such as compensation, repair, replacement, a price
reduction, contract termination or price reimbursement, as appropriate and available
under EU Consumer law or under national (mandatory) legal provisions.
1. Designation criteria for the national qualified entities
1.1. Eligibility for the purpose of bringing cross-border representative actions

Firstly, it is worth recalling that, in order to be eligible to bring cross-border
actions, qualified entities will have to satisfy a set of criteria that are identical across
the EU; therefore, it should be mentioned that, in terms of eligibility criteria, qualified
entities will have to demonstrate a certain precedent duration of activity and
preoccupation in the field of collective interests of consumers7 (twelve months of prior
activity in protecting consumer interests). Secondly, these entities must show a
legitimate interest in protecting consumers, while presenting a non-profit character.
Nevertheless, the qualified entities are expected to demonstrate not being subject to
insolvency proceedings, as well as demonstrate not collaborating with parties that have
economic interests opposed to those of consumers8 (the excluding of conflictual
interests or opposite interests’ collision). By contrast, in order to be eligible to bring
purely domestic representative actions, qualified entities will have to comply with
5
Alexandre Biard, „Sale temps pour L’action de groupe... la nécessaire recherche d’outils alternatifs
pour résoudre les litiges de masse”, Revue Lamy Droit Civil 157/2018, pp. 21-26, available at SSRN:
https://ssrn.com/abstract=3137050, accessed on 06.05.2021; Alison Brown, Ian Dodds-Smith, „EU
developments in relation to cross-border actions for collective redress”, available at
https://iclg.com/cdr/expert-views/eu-developments-in-relation-to-cross-border-actions-for-collective-
redress, accessed on 06.05.2021.
6
Maria-José Azar-Baud, Les actions collectives en droit de la consommation, Paris: Dalloz, 2013, p. 86;
Iris Benöhr, „Collective Redress in the Field of European Consumer Law”, Legal Issues of Economic
Integration 41(3)/2014, pp. 243-256.
7
Kati Cseres, „Harmonising Private Enforcement of Competition Law in Central and Eastern Europe:
The Effectiveness of Legal Transplants Through Consumer Collective Actions”, Yearbook of Antitrust
and Regulatory Studies vol. 8, Issue 12/2015, available at SSRN: https://ssrn.com/abstract=2858852 ,
accessed on 06.05.2021; Mark Dawson, Elise Muir, „One for All and All for One? The Collective
Enforcement of EU Law”, Legal Issues of Economic Integration vol. 41, Issue 3/2014, pp. 215-224;
Germain Gaudin, Franziska Weber, „Antitrust Damages, Consumer Harm, and Consumer Collective
Redress”, Journal of European Competition Law & Practice, 2020, available at SSRN:
https://ssrn.com/abstract=3761016 , accessed on 06.05.2021;
8
Mark Dawson, Elise Muir, op. cit., p. 216; Iris Benöhr, op. cit., p. 251.
129
Conference Paper
criteria defined by national law, while in the perimeter of cross-border representative

actions, these criteria will be specifically defined. Thirdly, it should be stressed that EU
Member States are not expected to enact special rules, should instead be applicable the
general rules for representative actions, as long as these do not encourage abusive
litigation, however, since the objective of the avoidance of potential abuse in the
perimeter of representative action procedures remains a salient one, in the context of
the entering into force of Directive (EU) 2020/1828.
As contoured in article 4 of Directive (EU) 2020/1828, the criteria used in each
Member State for the designating of qualified entities in the field of the representing of
collective consumer interests must be consistent with the objectives of the Directive in
the view of ensuring the functioning of representative actions, both under domestic
jurisdictions and in cross-border litigation9, effective and efficient. In this conceptual
perimeter, Member States are expected to ensure that entities, in particular consumer
organisations, including consumer organisations that represent members from more
than one Member State, are eligible to be designated as qualified entities for the
purpose of bringing domestic representative actions or cross-border representative
actions, when applicable and, for obvious reasons, are expected to transparently define
such admissibility criteria10.
In terms of entities designation, these will be designated as qualified entity as
referred to in the second paragraph of article 4 of Directive (EU) 2020/1828 for the
purpose of bringing cross-border representative actions11 if that entity simultaneously
complies with certain criteria, enumerated by the third paragraph of the mentioned
article, as such:
„(a) it is a legal person that is constituted in accordance with the national law of
the Member State of its designation and can demonstrate 12 months of actual public
activity in the protection of consumer interests prior to its request for designation;
(b) its statutory purpose demonstrates that it has a legitimate interest in protecting
consumer interests as provided for in the provisions of Union law referred to in Annex I;
(c) it has a non-profit-making character;
9
C. Hodges, „Collective Redress: The Need for New Technologies”, Journal of Consumer Policy
42/2019, pp. 59–90; Samuel Issacharoff, „Collective Action and Class Action”, in Catherine Piché
(edit.) The Class Action Effect: From the Legislator’s Imagination to Today’s Uses and Practices,
Éditions Yvon Blais, 2018, available at SSRN: https://ssrn.com/abstract=3040302 , accessed on
06.05.2021; Graham Jones, „Collective Redress in the European Union: Reflections from a National
Judge”, Legal Issues of Economic Integration 41(3)/2014, pp. 289-304.
10
Csongor István Nagy, „The European Collective Redress Debate after the European Commission’s
Recommendation: One Step Forward, Two Steps Back?”, Maastricht Journal of European and
Comparative Law 22(4)/2015, pp. 530-552, available at SSRN: https://ssrn.com/abstract=2862976 ,
accessed on 06.05.2021; Alexander Stöhr, „The Implementation of Collective Redress – A
Comparative Approach”, published online by Cambridge University Press on 01 December 2020,
available at https://www.cambridge.org/core/journals/german-law-journal/article/implementation-of-
collective-redress-a-comparative-approach/16DB7839EF321046EE2ACAD5E74EBAFA , accessed
on 06.05.2021.
11
In terms of article 4, par. 6 of Directive (EU) 2020/1828, the ad-hoc designation of an entity as a
qualified entity (on an ad hoc basis, for the purpose of bringing a particular domestic representative
action, under specific circumstances) remains possible, at the request of that entity, should the latter
comply with the criteria for designation as a qualified entity, as provided for under national law
provisions.
130
(d) it is not the subject of insolvency proceedings and is not declared insolvent;
(e) it is independent and not influenced by persons other than consumers, in
particular by traders, who have an economic interest in the bringing of any
representative action, including in the event of funding by third parties, and, to that
end, has established procedures to prevent such influence as well as to prevent conflicts
of interest between itself, its funding providers and the interests of consumers;
(f) it makes publicly available in plain and intelligible language by any appropriate
means, in particular on its website, information that demonstrates that the entity
complies with the criteria listed in points (a) to (e) and information about the sources of
its funding in general, its organisational, management and membership structure, its
statutory purpose and its activities.” (article 4, par. 3 of Directive (EU) 2020/1828)12.
1.2. Monitoring and the revoking of designation

As resulting from Recitals (29) and (30) of Directive (EU) 2020/1828, national
legal provisions would clarify the designation criteria for the qualified entities for the
purpose of cross-border representative actions, thus assessing whether the qualified
entity continues to comply with the criteria for designation under continuous verifying
procedures (at least every five years), while establishing specific cases of revocation of
the qualified entity’s designation13; these repeated verification procedures are
especially important should concerns arise as to whether a qualified entity complies
with the criteria for designation, in designated national contact points for the purpose
of transmitting and receiving requests for investigations; subsequent non-compliance to
one or more authorisation criteria represents sufficient grounds for the revoking of the
qualified entity’s designation; nevertheless, as resulting from the second thesis of the
forth paragraph of article 5, the defendant trader in a representative action benefits of
the right to raise justified concerns to the court or administrative authority regarding
whether a qualified entity complies with the criteria listed in Article 4, par. (3) of
Directive (EU) 2020/1828.
12
In terms of representativeness, it is required that the national consumer organisations referred to in
terms of eligibility must be representative of the general interest of consumers, in accordance with
national rules and be active at national level. Subsequently, the European consumer organisations
nominated for the qualifiyng procedure in the perimeter of representative actions must simultaneously
meet a binary set of criteria: firstly, to be non-governmental, non-profit-making, independent of
industry, commerce and business or other conflicting interests, and secondly, have as their
preponderant objectives and activities, the promotion and protection of the health, safety and
economic interest of consumers in the EU or the protection and rights promotion of vulnerable groups
of consumers. Thirdly, in order to be eligible for the designating as qualified entitiy, the consumer
organisation must have proven and relevant competence and experience at European level in
consumer policy areas or at least in one of the areas identifiable under the New Consumer Agenda
and, consequentially, must have provided to the authorities accounts of their membership, internal
structural rules and transparent sources of funding.
13
Dimitrios-Panagiotis Tzakas, „Collective Redress in the Field of EU Competition Law: The Need for an
EU Remedy and the Impact of the Recent Commission Recommendation”, Legal Issues of Economic
Integration 41(3)/2014, pp. 225-242; I. N. Tzankova, I. N., Xandra F. Kramer, „From Injunction and
Settlement to Action: Collective Redress and Funding in the Netherlands”, in Alan Uzelac and Stefaan
Voet (edit.), Class Actions in Europe: Holy Grail or a Wrong Trail?, Springer, 2021, available at SSRN:
https://ssrn.com/abstract=3755845 , accessed on 06.05.2021.
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1.3. Opting-in consent of consumers versus consumers opt-out consent

A two-fold approach is to be noticed, in terms of the opting-in consent of
consumers versus consumers opt-out consent; in accordance with the provisions of
article 8, par. (3) of Directive (EU) 2020/1828 in the perimeter of collective actions
pursuing injunctive measures, individual consumers shall not be required to express
their wish to be represented by that qualified entity, a tacit consent thus being
presumed, while allowing the consumers to specifically and expressly opt-out from a
collective representative action pursuing injunctive measures, should individuals refuse
to be represented by that qualified entity when seeking an injunctive measure against
professional traders. Congruently, in these particular hypotheses, the qualified entity
will not be required to prove the occurrence of actual loss or damage on the part of the
individual consumers affected by the infringement as referred to in Article 2, par. (1) of
Directive (EU) 2020/1828, nor are these qualified entities compelled to prove the
culpable intent or unjustifiable negligence on the part of the trader, due to the objective
premises (independent of the proven culpable behaviour) of the legal ground of the
action seeking the covering of the consumers’ economical (patrimonial) loss14.
On the other versant, a specific and granular opting-in consent is required from
represented consumers for the using of a collective redress mechanism based on the
provisions of article 9 of Directive (EU) 2020/1828, requiring the professional trader to
provide consumers concerned with remedies such as compensation15, repair,
replacement, price reduction, contract termination or reimbursement of the price; as to
the substantial and formal requirements for the validity of the declaration of consent,
national legislators have the competency of laying down „rules on how and at which
stage of a representative action for redress measures the individual consumers concerned
by that representative action explicitly or tacitly express their wish within an appropriate
time limit after that representative action has been brought, to be represented or not by
the qualified entity in that representative action and to be bound or not by the outcome of
the representative action” (article 9, par. 2 of Directive 2020/1828).
It has been underlined by previous scholars16 that, in order to be able to respect their
legal traditions, national legislators preserve the choice between an opt-in mechanism, an
opt-out mechanism, or a combination of the two for redress measures, hybrid procedures
also being possible when deciding at which stage of the proceedings, consumers should
exercise this right. Several dichotomies and imbricating aspects are worth noticing, since
under an opt-in mechanism, consumers are required to make an express will or to
14
S. I. Strong, „Global Class Actions and Cross-Border Collective Redress: Contract Considerations”, in
Petra Butler, (edit.), International Commercial Contracts (Oxford: Oxford University Press, 2018),
available at SSRN: https://ssrn.com/abstract=3096727, accessed on 06.05.2021; Bosters Thijs,
Collective Redress and Private International Law in the EU, Springer, 2017, pg. 89-94.
15
Linda S. Mullenix, „For the Defense: 28 Shades of EU Class Actions”, in Uzelac, Alan and Voet,
Stefaan (edit.), Class Actions in Europe: Holy Grail or a Wrong Trail? (Springer, 2021), available at
SSRN: https://ssrn.com/abstract=3792471, accessed on 06.05.2021; Csongor István Nagy, „The
Long-Awaited Directive on Representative Actions: Still Waiting for Godot…”, Revista Ítalo-Española
de Derecho Procesal 3(2)/2020, pp. 127-138, available at SSRN: https://ssrn.com/abstract=3800946 ,
accessed on 06.05.2021;
16
S. I. Strong, op. cit., pg. 91-92.
132
manifest an explicit intent to be represented by the qualified entity in the representative

action aiming at the obtaining of redress measures, while, on the contrary, its opposite,
the opt-out mechanism implies that consumers are required to express their will of not
being represented by the qualified entity in a collective litigating procedure.
2. Representative actions brought before courts or administrative

authorities by qualified entities
2.1. Availability of injunctive measures, in the perimeter of representative actions

As previously remarked, the Directive (EU) 2020/1828 provides for safeguards
against the abusive litigation historically associated with class actions in other
jurisdictions, both in terms of not allowing judicial courts to impose punitive damages on
the infringing trader (although these remedies remain available under common
procedures when retaining the professional traders’ liability for lack of contractual
conformity, for instance) and in terms of opting for the “litigating party who lost pays the
procedural costs” principle, which ensures that the unsuccessful party pays the procedural
costs of the successful party; this principle remains applicable independently of the
quality of consumer (as a plaintiff or, on the other versant, as a defendant). Congruently,
EU Member States are expected to ensure that the court or the administrative authority,
in front of which a representative action has been brought, can dismiss manifestly
unfounded cases as soon as it has received the fundamentum informational grounds to
justify the rejecting decision. Finally, a further safeguard against abusive litigation is the
eligibility for specific entities to represent groups of consumers harmed by relevant
infringements of EU law, which for obvious reasons is limited to the mentioned
„qualified entities”, such as consumer organisations and public administrative bodies17.
2.2. Redress measures provided for consumers –

salient features in terms of funding
Funding of representative actions for redress measures is regulated in article 10 of
Directive (EU) 2020/1828, while focusing on the issues of funding transparency. Thus,
where a representative action for redress measures is funded by a third party, insofar as
allowed in accordance with national law, conflicts of interests must be prevented
through transparency mandatory mechanisms permitting to identify the cases in which
an representative action has been receiving funding by third parties that have an
economic interest in the bringing or the outcome of the representative action for redress
measures, while ensuring by adequate procedural means that such funding does not
divert the representative action away from the protection of the collective interests of
consumers. the decisions of qualified entities in the context of a representative action,
including decisions on settlement, are not unduly influenced by a third party in a
manner that would be detrimental to the collective interests of the consumers
17
Dimitrios-Panagiotis Tzakas, op. cit., pg. 227-232; S. I. Strong, op. cit., pg. 89-91.
133
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concerned by the representative action. One of the minimal procedural precautions in

the avoiding of conflicts of interests in the perimeter of qualified entities funding is
ensuring that the representative action is not brought against a defendant that is a
competitor of the funding provider or against a defendant on which the funding
provider is dependent. To that end, qualified entities are mandated to disclose to the
court or administrative authority a financial overview that lists sources of funds used to
support the representative action; for obvious reasons, in the mentioned context,
administrative authorities are empowered to take appropriate measures, such as
requiring the qualified entity to refuse or make changes in respect of the relevant
funding and, if necessary, rejecting the legal standing of the qualified entity in a
specific representative action; nevertheless, should the legal standing of the qualified
entity be rejected in a specific representative action, that rejection is not expected to
affect the rights of the individual consumers concerned by that representative action.
2.3. Redress settlements and allocation of costs of a representative action

for redress measures, in terms of costs distribution
The problematics of allocation of costs of a representative action for redress
measures are approached in article 12 of Directive (EU) 2020/1828, which imply that
Member States are expected to ensure that the unsuccessful party in a representative
action for redress measures is required to pay the costs of the proceedings borne by the
successful party, „in accordance with conditions and exceptions provided for in
national law applicable to court proceedings in general” ; nevertheless, individual
consumers concerned by a representative action for redress measures must not be
imposed an obligation to pay the costs of the proceedings, since the collective redress
procedures remain to be free of charge for individual consumers; it is only by way of
derogation from the gratuity principle that, in exceptional circumstances, an individual
consumer concerned by a representative action for redress measures may be ordered to
pay the costs of proceedings that were incurred as a result of the individual consumer’s
intentional or negligent conduct (as stated in the final thesis of the third paragraph of
article 12 of Directive 2020/1828).
3. Salient aspects of representative actions, in terms of procedural expediency
3.1. Temporal limitation and expediency issues

As stated in article 16 of Directive (EU) 2020/1828, Member States preserve the
competencies to ensure that a pending representative action for an injunctive measure18
referred to in Article 8 has the effect of suspending or interrupting applicable limitation
periods in respect of the consumers concerned by that representative action, in view of
ensuring that those consumers are not prevented from subsequently bringing an action
for redress measures concerning the alleged infringement19 due to the fact the
18
Mark Dawson, Elise Muir, op. cit., p. 216.
19
Ibidem.
134
applicable limitation periods expired during the representative action for those
injunctive measures. Therefore, it should be noted that, as a generally immutable
principle, a pending representative action for a redress measure referred to in Article 9,
par. (1) of Directive (EU) 2020/1828 has the effect of suspending or interrupting
applicable limitation periods in respect of the consumers concerned by that
representative action20.
3.2. Disclosure of evidence, ordered by the court or administrative authority

One of the most salient features, when request for evidence disclosure is
concerned, is resulting from a literal interpretation of the provisions of article 18 of the
Directive (EU) 2020/1828, which expressly states that each party in a representative
action will be allowed to request the disclosure of evidence by the other party, provided
that the plaintiff has provided reasonably available evidence sufficient to support the
representative action. It should be noted, consequently, that the reasons for the
establishing of the mentioned procedural rule lays with the removing of „information
asymmetries” between consumers and professional traders; in terms of vulnerabilities
characterising the unbalanced contractual forces in a B2C contract or even in a B2C
litigious context, the informational asymmetries between the prophane consumer and
the professional trader represents a starting point for the recognising of the consumer’s
right to be transparently informed, in a clear and comprehensible manner, on the
essential aspects of the commercial relationship. The Directive 2020/1828 therefore
provides that this requirement is to be implemented in accordance with national
procedural law, which micht raise highly controversial interrogations, since it is usually
seen as a deviation from the procedural principle that facts and evidence must be
presented by the parties and not be ordered by the court. Nevertheless, the previous
judicial opinions (in the perimeter of classical civil procedure, thus not being
automatically applicable to consumer-to-professionals litigation) had been that only the
party having the burden of proof was required to disclose evidence, should this
disclosure be requested or ordered by the court.
Conclusions
Injunctive measures and, on the other versant, redress remedies represent the
pillars on which the new EU mandatory set of rules are conceiving the collective
actions in the field of consumer legal protection. As resulting from Recital (69) and
(70) of Directive (EU) 2020/1828, in the view of the ensuring of the effectiveness of
representative actions, infringing professionals in B2C contracts would face effective
sanctions, dissuasive and proportionate penalties for the failure or refusal to comply
with an injunctive measure ordered by court or by the administrative authorities whose
competency includes the retaining of these types of measures. Nevertheless, Member
States are expected to ensure that those penalties could take the form of conditional
20
Idem, p. 217.
135
Conference Paper
fines, periodical payments or penalties, including in the case of failure or refusal to

comply with an order to provide information to the consumers concerned regarding
final decisions or settlements or for the professionals’ failure or refusal to disclose
evidence; it is worth noting that the applying of other types of penalties, such as
procedural measures, for refusal to comply with an order to disclose evidence, remains
incidental. With regard to the fact that representative actions further the public interest
by protecting the collective interests of consumers21, it is worth underlining that
Member States are expected to retain and take measures aiming to ensure that qualified
entities are not facing financial restrictions or discouragement, which would prevent
them from bringing representative actions under Directive (EU) 2020/1828 due to the
costs and expenditures associated with the procedures. Procedural measures, in terms
of adequacy, would imply the limiting of the applicable court or administrative fees, or
could include granting the qualified entities access to legal aid, where necessary, or
providing qualified entities with public funding to bring representative actions,
including appropriate structural support.
Several concluding remarks cand be drawn based on the previously made
assertions:
(a) as resulting from the provisions of Directive (EU) 2020/1828 on representative
actions for the protection of the collective interests of consumers, EU Member States
are required to organize a system of representation actions aimed to the protecting of
the collective interests of consumers against professionals’ infringements of EU
regulations applicable to B2C contracts, including cessation orders and remedial
measures;
(b) one of the salient features of the recently established framework is that the
Directive empowers qualified entities designated as such by Member States to bring
actions for obtaining a cessation order and / or actions for obtaining a repair order,
including compensation or replacement, on behalf of a group of consumers who have
been harmed by a trader about whom it is alleged to have infringed mandatory rules of
EU Consumer Law;
(c) while setting specific eligibility criteria for qualified entities, the Directive
distinguishes between qualified entities that have the right to bring actions in the
Member State in which they have been designated a procedural capacity to promote
internal representation actions and, on the other versant, the qualified entities that have
been recognized a procedural capacity to bring actions in any another Member State, in
terms of the promoting of cross-border representation actions;
(d) representative actions aiming at the coagulating of multiple consumers may
seek injunctive measures or even redress measures, while injunctive measures imply
the pursuing of the collective interests of consumers, irrespective of whether any actual
loss or damage is suffered by individual consumers and irrespective of whether the
practice was committed intentionally or as a result of the professionals’ negligence;
21
Ana Vlahek, „Development of Consumer Collective Redress in the EU: A Light at the End of the
Tunnel?”, Baltic Yearbook of International Law Online 18(1)/2020, pp. 134-168; Stefaan Voet, „Where
the Wild Things Are. Reflections on the State and Future of European Collective Redress”, in M. Loos,
A. Keirse (edit.), Ius Commune Europaeum series, 2017, available at SSRN:
https://ssrn.com/abstract=2913010, accessed on 06.05.2021.
136
(e) redress measures, in contrast, are defined as measures requiring a trader to

provide consumers actually affected by a violation of a relevant provision of EU law
with remedies, such as compensation, repair, replacement, a price reduction, contract
termination or reimbursement of the price paid by the consumer in a B2C contract.
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18. Stöhr, Alexander, „The Implementation of Collective Redress – A Comparative Approach”,
published online by Cambridge University Press on 01 December 2020, available at
https://www.cambridge.org/core/journals/german-law-journal/article/implementation-of-
collective-redress-a-comparative-approach/16DB7839EF321046EE2ACAD5E74EBAFA
, accessed on 06.05.2021;
19. Strong, S.I., „Global Class Actions and Cross-Border Collective Redress: Contract
Considerations”, in Butler, Petra (edit.), International Commercial Contracts (Oxford:
Oxford University Press, 2018), available at SSRN: https://ssrn.com/abstract=3096727
, accessed on 06.05.2021;
20. Thijs, Bosters, Collective Redress and Private International Law in the EU, Springer,
2017;
21. Tzakas, Dimitrios-Panagiotis, „Collective Redress in the Field of EU Competition
Law: The Need for an EU Remedy and the Impact of the Recent Commission
Recommendation”, Legal Issues of Economic Integration 41(3)/2014, pp. 225-242;
22. Tzankova, I. N. and Kramer, Xandra E., „From Injunction and Settlement to Action:
Collective Redress and Funding in the Netherlands”, in Uzelac, Alan and Voet, Stefaan
(edit.), Class Actions in Europe: Holy Grail or a Wrong Trail?, Springer, 2021,
available at SSRN: https://ssrn.com/abstract=3755845 , accessed on 06.05.2021;
23. Vlahek, Ana, „Development of Consumer Collective Redress in the EU: A Light at the
End of the Tunnel?”, Baltic Yearbook of International Law Online 18(1)/2020, pp.
134-168;
24. Voet, Stefaan, „Where the Wild Things Are. Reflections on the State and Future of
European Collective Redress”, in Loos, M. and Keirse, A. (edit.), Ius Commune
Europaeum series, 2017, available at SSRN: https://ssrn.com/abstract=2913010,
accessed on 06.05.2021.
138
RESTRICTION ON THE EXERCISE OF THE

FUNDAMENTAL RIGHT OF ACCESS TO CULTURE –
A REAL NECESSITY IN A PANDEMIC PERIOD?
Oana ŞARAMET*
Abstract: When we are born, we have the same chances to educate and develop so that we
can configure our desired personality, in order to be able to project the desired future. In order
for each of us to have such chances, we must be able to exercise, in their fullness, rights such as
the right to education, the right to a healthy environment, but also the right to culture or, as the
Romanian constitutional legislator names it, access to culture. In this paper, we set out to
discuss about what this access to culture entails, about how it was possible or, more correctly, it
was not possible, to exercise of this fundamental right during the pandemic, during the severe
restrictions imposed on access to culture. Culture, through its different dimensions - music, fine
arts, theatre, film, literature, decorative arts, design, etc., is so diverse and strongly influenced
by the preferences, tastes of each of us, but it is always part of each of us, to a greater or lesser
extent. Cultural diversity is specific to every human society, it has existed in any such society
and, although sometimes we do not see this aspect, it has shaped our society and helped us to
evolve to the present day. In our opinion, to restrict in a discretionary way, little or not at all
justified, the access to any form of culture will have undesirable consequences for the
development of any human being, whose personality will thus be deprived of an important
dimension of it. Such an approach will also affect the mature human being who desires the
benefits of enjoying the cultural dimension agreed to meet the challenges of today, even harder
and more demanding in a period of pandemic, a period never seen before.
Keywords: fundamental right, culture, restriction of the exercise of certain right.
Introduction
Art. 22 of the Universal Declaration of Human Rights 1 provides that „everyone,

as a member of society, has the right to social security”, thus being „entitled to
realization, through national effort and international co-operation and in accordance
with the organization and resources of each State, of the economic, social and cultural
rights indispensable for his dignity and the free development of his personality”, and
art. 27 para. (1) of same declaration to provide that „everyone has the right freely to
participate in the cultural life of the community, to enjoy the arts and to share in
scientific advancement and its benefits”. In the same sense are the provisions of the
* Senior lector PhD, Transylvania University of Brasov, Faculty of Law, Braşov (Romania),
oana.saramet@unitbv.ro.
1
This Declaration was adopted by the UN General Assembly on 10 December 1948, by its Resolution
2171 A/III. Romania signed the Declaration on 14 December 1955, when it became member of the
United Nation Organization, as it is settled by the Resolution R 955 (X) of the UN General Assembly.
139
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International Covenant on Economic, Social and Cultural Rights2 which, by art. 15, are
„some of the most detailed such regulations on access to culture”3. Thus, among the
provisions of this article, we find those according to which „States Parties to the
present Covenant recognize the right of everyone: a) to take part in cultural life; b) to
enjoy the benefits of scientific progress and its applications; c) to benefit from the
protection of the moral and material interests resulting from any scientific, literary or
artistic production of which he is the author”, and the steps taken by the these States
„will be taken to achieve the full realization of this right shall include those necessary
for the conservation, the development and the diffusion of science and culture”.
According to the Explanatory Dictionary of the Romanian Language, culture
represents4 „the totality of material and spiritual values created by mankind and the
institutions necessary for the communication of these values”, but also „the fact of
possessing various knowledge in various fields, all this knowledge, (high) level of
intellectual development that someone reaches”. However, the "possession" of such
knowledge cannot be achieved if a person does not have access to it, and his
development or intellectual well-being, as the case may be, will be affected.
In this article, we intend to analyze aspects of access to culture from the perspective
of restricting the exercise of this fundamental right from the perspective of its
beneficiary, on the one hand, and, on the other hand, the way in which the state has or not
guaranteed access to culture for these beneficiaries. Our choice for this approach was
determined by the need to emphasize that the development of every human being,
including the intellectual dimension, cannot be arbitrarily and discretionally deprived of
contact with its elements, such as culture. In exceptional situations, of extreme crises,
such as the periods of the current Covid-19 pandemic, certainly the highest priority is to
ensure the protection of all human beings, being admissible even a total restriction of
access to culture. However, maintaining such a restriction in quieter times during such
periods of extreme crisis, without a scientifically and substantiated justification, not only
affects the intellectual development of the human being, but increases his degree of
personal discomfort, affecting the well-being of his intellectual life.
1. Culture – a complex and diverse concept
Access to culture is considered, from the point of view of the classification of

fundamental rights, a socio-economic and cultural right. 5. However, from the
perspective of the close link with other fundamental rights, such as: freedom of
expression, freedom of thought and conscience, freedom of association, freedom of
2
This Covenant was adopted and opened for signature by the General Assembly of United Nations,
resolution 2200A (XXI) of 16 December 1966, and entered into force on March 23rd 1976, in
accordance with Article 49. Romania has ratified the International Covenant on Civil and Political
Rights on October 31st 1974, by Decree no 212 which was published in the Official Gazette of
Romania, Part I, no 146 from November 20th 1974.
3
Ioan Muraru, Simina Elena Tănăsescu, coordinators, Constituţia României. Comentariu pe articole, C.
H. Beck Publishing House, Bucharest, 2008, p. 313.
4
See: https://dexonline.ro/definitie/cultura, accessed on: 20.05.2021.
5
Ioan Muraru, Simina Elena Tănăsescu, coordinators, op. cit., p. 314.
140
assembly, and its purpose to ensure the participation of any person in society and
through culture6, it may be considered a socio-political right 7.
Even though we have identified a definition of culture in the above mentioned, this
is one of the many definitions that can be given to it, „culture being a vague and broad
term”8. Thus, for example, the Cambridge Dictionary defines culture as „the way of life,
especially the general customs and beliefs, of a particular group of people at a particular
time”9, but, at the same time, meanings of this term are identified from different
perspectives, such as arts, biology, social sciences, work environment, etc. The difficulty
in identifying the content of the definition of the term culture is also highlighted in an
article published in the Standford Encyclopedia of Philosophy which states that „most
definitions characterize culture as something that is widely shared by members of a social
group and shared in virtue of belonging to that group. As stated, this formulation is too
general to be sufficient (a widespread influenza outbreak would qualify as cultural).
Thus, this formulation must be refined by offering a specific account of what kind of
shared items qualify as cultural, and what kind of transmission qualifies as social.” 10
Therefore, the identification of the content of the concept of „culture” involves a
complicated and complex approach whose purpose has little chance to materialize in a
unanimously accepted definition or, at least, majority embraced at the academic level
and not only. The diversity of humanity, in general, and, implicitly, of our needs as
members of diverse and multiple communities, as well as of those we have as
individuals, each one, will determine a diversity of definitions given to culture..
In our opinion, in defining the term culture we must take into account its multiple
dimensions, keep in mind that it is a baggage of information, of specific elements from
a variety of fields that is transmitted through various means, such as writing, various
art forms, the media, modern electronic resources, and which characterize a
community, a human society, and which must be preserved, developed, if necessary,
and passed on to future generations..
2. Access to culture
But, no matter how we conceive a definition of culture, it is more important to

recognize and enshrine the freedom of forms of expression and its manifestation,
within the limits of good morals and public order, as well as access to it.
6
Ibidem.
7
Ibidem.
8
As underlined by UN Economic and Social Council (ECOSOC), Commission on Human Rights, in The
Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural
Rights, 43rd Session, Annex, UN Doc. E/CN.4/1987/17, 8 January 1987, paras 11–58, quoted by Caterina
Sganga, Right to culture and copyright: Participation and access, p. 4, in C.Geiger (ed.), “Research
Handbook on Human Rights and Intellectual Property”, Edward Elgar, 2015, pp. 560-576, available at:
https://www.researchgate.net/publication/298524056_Right_to_culture_and_copyright_Participation_and_a
ccess, accessed on: 05.04.2021.
9
See: https://dictionary.cambridge.org/dictionary/english/culture, accessed on: 20.05.2021
10
Jesse Prinz, Culture and Cognitive Science in The Stanford Encyclopedia of Philosophy (Summer 2020
Edition), Edward N. Zalta (ed.), available at: https://plato.stanford.edu/archives/sum2020/entries/culture-
cogsci/, accessed on: 20.05.2021.
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Conference Paper
On the other hand, analyzing international, regional and national regulations

regarding a fundamental right recognized to any person regarding culture, we will be
able to observe a different approach. Such a finding seems logical to us given the
diversity of ways in which the term culture can be explained, the diversity of angles
from which it can be viewed. In fact, in the specialized doctrine it was emphasized
that „cultural rights have always been difficult to conceptualize” 11, the reasons being
related to: the appreciation of these rights as individual or collective rights; „their
‘transversal nature’, since they include entitlements that can be also classified as
civil, political or social rights”12; the diversity of regulations in this field, diversity
determined by the diversity of cultural dimensions, of the fields in which we can
discuss about a culture of a certain type, but also by the neglect by states, especially,
of enshrining such fundamental rights to the detriment of those considered more
important for every person.
Thus, for example, by art. 13 of the Charter of Fundamental Rights of the
European Union, at the level of the European Union is enshrined the freedom of arts
and sciences, being provided only that the arts and scientific research are free.
Constitutions, such as that of Slovenia13 do not enshrine a right to culture, but enshrine
rights that protect the cultural heritage of that nation, but also of the minorities of that
state. Thus, according to art. 5, Slovenian state „shall provide for the preservation of
the natural wealth and cultural heritage and create opportunities for the harmonious
development of society and culture in Slovenia”, but, at the same time, by art. 61, it is
admitted that „everyone has the right to freely express affiliation with his nation or
national community, to foster and give expression to his culture and to use his language
and script”.
In the same sense are the regulations of the Latvian Constitution14 which in its
preamble states that „the State of Latvia, proclaimed on 18 November 1918, has been
established ... in order to guarantee the existence and development of the Latvian
nation, its language and culture throughout the centuries, to ensure freedom and
promote welfare of the people of Latvia and each individual”, and, by art. 114 it is
recognized that „persons belonging to ethnic minorities have the right to preserve and
develop their language and their ethnic and cultural identity”. However, the Latvian
constitutional legislator also enshrined artistic freedom, providing in art. 113 that „the
State shall recognise the freedom of scientific research, artistic and other creative
activity, and shall protect copyright and patent rights”.
Consistent provisions on the protection of cultural heritage and a fundamental
right to it are found in the Constitution of Croatia 15 which through its preamble
recognizes an important role for culture in shaping the Croatian state, stipulates that
11
Caterina Sganga, op. cit., p. 3.
12
Caterina Sganga, op. cit., pp. 3-4.
13
The Constitution of Slovenia is available at: https://www.constituteproject.org/constitution/
Slovenia_2016?lang=en, accessed on: 20.05.2021.
14
The Constitution of Latvia is available at: https://www.constituteproject.org/constitution/
Latvia_2016?lang=en, accessed on: 20.05.2021.
15
The Constitution of Croatia is available at: https://www.constituteproject.org/constitution/
Croatia_2013?lang=en, accessed on: 20.05.2021.
142
„the Republic of Croatia is hereby founded and shall develop as a sovereign and
democratic state in which equality, freedoms and human rights are guaranteed and
ensured, and their economic and cultural progress and social welfare promoted”, as
and to „members of all national minorities shall be guaranteed freedom to express
their nationality, freedom to use their language and script, and cultural autonomy”.
But, by the provisions of art. 68, the Croatian constitutional legislator enshrines the
freedom of scientific, cultural and artistic creativity, as well as the correlative
obligations of the state to ensure the exercise of this freedom, as well as: „to
stimulate and to assist the development of science, culture and the art, to protect
scientific, cultural and artistic goods as national spiritual values”, guaranteeing „the
protection of moral and material rights deriving from scientific, cultural, artistic,
intellectual and other creative activities”.
The Constitution of Brazil16 also contains multiple regulations regarding culture,
the protection of cultural heritage, and access to culture. In this sense, a dimension of
the right to education is provided, by art. 210 para. (1) being established that
„minimum curricula shall be established for elementary education so as to assure a
common basic education and respect for national and regional cultural and artistic
values”. By three other articles, art. 215 - 216 A, the Brazilian constitutional
legislature settles out different rights related to culture, obligations incumbent on the
Brazilian state and authorities in the exercise of this right, including by creating a
National Cultural Plan spread over several years for „seeking the cultural
development of the country and the integration of public actions that lead to: defence
and valorisation of Brazilian cultural patrimony; the production, promotion and
diffusion of cultural goods; formation of qualified personnel for the multiple
dimensions of cultural management; democratization of access to cultural goods;
valorisation of ethnic and regional diversity”. The constitutional provisions also
identify the elements of the Brazilian cultural heritage, as well as the principles
according to which the National Cultural Plan should be developed, thus the federal
government „shall guarantee to all full exercise of cultural rights and access to
sources of national culture, and shall support and grant incentives for appreciation
and diffusion of cultural expression”.
But, the Romanian constitutional legislator chose „to guarantee access to
culture”17, in accordance with the law, for each person, „the freedom of the person to
develop his/her spirituality and to get access to the values of national and universal
culture cannot be restricted”18, the state being obliged, among other things, „to support
national culture and stimulate the arts”19. Therefore, our constitutional legislator chose
to guarantee the right of each of us to access culture, the state binding itself not to
restrict this right, but also to support the national culture.
16
The Constitution of Brazil is available at: https://www.constituteproject.org/constitution/
Brazil_2017?lang=en, accessed on: 20.05.2021.
17
Art. 33 of Romanian Constitution, republished.
18
Ibidem.
19
Ibidem.
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3. Restriction on the exercise of access to culture

and the principle of proportionality
Indeed, guaranteeing access to culture is conditioned by the limits of the law, and if
by law we mean any normative act, not just the normative act with this name adopted by
the Romanian Parliament, we could appreciate that during the state of emergency, as well
as at large part of the state of alert, the guarantee of this fundamental right could no
longer be ensured, the priority of state authorities being the ensuring of other
fundamental rights, such as the right to life or the right to health care. However, the
restriction of access to culture was not provided, expressis verbis, nor by Decree no. 195
of March 16, 2020 on the establishment of the state of emergency on the territory of
Romania20, nor by Decree no. 240 of April 14, 2020 on the extension of the state of
emergency on the territory of Romania21, both issued by the President of Romania, the
exercise of this right not being restricted. Both decrees, by the same art. 2, provide for the
restriction of the exercise of the following fundamental rights: freedom of movement, the
right to intimate, family and private life; inviolability of domicile; the right to education;
freedom of assembly; the right of private property; the right to strike; economic freedom.
Even if these decrees did not expressly provide the access to culture among the rights
whose exercise was restricted, indirectly by restricting the exercise of rights such as
freedom of assembly or the right to intimate, family and private life, we could appreciate
that it was also taken into consideration the access to culture. The complexity of cultural
rights, including access to culture, requires correlation with other fundamental rights such
as those mentioned, and not only, as we have shown above.
If during the state of emergency, declared as a result of the Covid-19 pandemic, an
exceptional situation never encountered in recent times, restriction on the exercise of
access to culture to the maximum, by ceasing all cultural activities we can consider it
appropriate, and from certain points of view even constitutional22, we consider that
during the state of alert, the restriction on the exercise of access to culture was ordered
with “superficial observance” of the principle of proportionality as provided by art. 53
para. (2) of the Constitution.
According to the principle of proportionality, in accordance with the provisions of
art. 5 of Recommendation CM/Rec(2007)7 of the Committee of Ministers to member
states on good administration23, any state „shall impose measures affecting the rights or
20
This decree was published in the Official Gazette of Romania, Part I, no. 212 of March 16, 2020.
21
This decree was published in the Official Gazette of Romania, Part I, no. 311 of April 14, 2020.
22
We consider that a broader analysis is needed on the constitutionality of such a restriction on the
exercise of certain rights by, restricions imposed by an emergency ordinance, such as the Emergency
Ordinance no. 1/1999 regarding the state of siege and the regime of state of emergency, approved by
Law no. 453/2004, with the subsequent amendments and completions, also considering the decisions
of the Constitutional Court of Romania, as well as Decision no. 152 of 06 May 2020, published in M.
Of. of Romania, Part I, no. 387 of 13 May 2020, but such an analysis could be the subject of another
specialized work that we already plan to write.
23
Council of Europe, Recommendation CM/Rec(2007)7 of the Committee of Ministers to member states
on good administration, adopted by the Committee of Ministers on 20 June 2007 at the 999bis
meeting of the Ministers’ Deputies, available at: https://rm.coe.int/cmrec-2007-7-of-the-cm-to-ms-on-
good-administration/16809f007c, accessed on: 20.05.2021.
144
interests of private persons only where necessary and to the extent required to achieve the
aim pursued”. Article 5 para. (3) of the same Recommendations emphasizes that „when
exercising their discretion, they [rulers, s.n.] shall maintain a proper balance between any
adverse effects which their decision has on the rights or interests of private persons and
the purpose they pursue. Any measures taken by them shall not be excessive”.
The Constitutional Court of Romania ruled in the same sense, when, by Decision
no. 462/2017, stressed out that „according to the principle of proportionality, any
measure taken must be adequate - able to objectively achieve the purpose, necessary -
indispensable for the achievement of purpose and proportionate – to ensure the right
balance between concrete interests to be appropriate to the purpose pursued”24.
Moreover, in the same sense are the provisions of art. 2 of Law no. 55/2020 on
some measures to prevent and combat the effects of the Covid-9 pandemic25, according
to which „the alert state represents the response to an emergency situation of special
magnitude and intensity, determined by one or more types of risk, consisting of a set
measures of a temporary nature, proportionate to the level of severity manifested or
forecasted and necessary to prevent and eliminate imminent threats to life, human
health, the environment, important material and cultural values or property”. Through
its other provisions, art. 44,26 et seq., this normative act provided, generally, only that
the concrete measures by which cultural institutions will carry out their specific
activities will be established concretely by regulations provided by common order of
the Minister of Health and the Minister of Culture27.
Although institutions from different spheres of the cultural field have proposed
various solutions by which they could have carry out, at a minimum level, their
specific activity, and in the short periods in which they were allowed to carry it out,
respecting of the restrictions mentioned by law, there has not been an increase in the
number of cases of infection specific to this pandemic28, the state authorities have
preferred to apply drastic and disproportionate measures, in our opinion, without
pursuing a fair balance between concrete interests and purpose, namely to protect
human health and life.
24
Point 33 of the Decision of the Constitutional Court of Romania no. 462/2014 regarding the exception
of unconstitutionality of the provisions of art. 13 para. (2) second sentence, art. 83 para. (3) and art.
486 para. (3) of the Code of Civil Procedure, published in the Official Gazette of Romania, Part I, no.
775 / 24.10.2014.
25
The law was published in the Official Gazette of Romania, Part I, no. 396 / 20.05.2020.
26
Art. 44 para. (1) of Law no. 55/2020 stipulates that “during the state of alert, the activity of museum
institutions, libraries, bookstores, cinemas, film and audiovisual production studios, performance and /
or concert institutions, cultural centers and / or homes and other cultural institutions, as well as
outdoor cultural events and public and private festivals may be held in accordance with regulations
providing for health protection measures established by joint order of the Minister of Culture and the
Minister of Health”.
27
In this sense, see for example, Order no. 3.245/1.805/2020 regarding the measures for the prevention
of contamination with the new coronavirus SARS-CoV-2 and for ensuring the development of activities
in conditions of sanitary safety in the field of culture, published in the Official Gazette of Romania, Part
I, no. 986 / 20.10.2020.
28
We did not identify statistics to the contrary, but institutions in various countries, such as the United
Kingdom, but also Romania, with the consent of the authorities competent in managing the situation
generated by the Covid-19 pandemic, have only recently started this pilot cultural event to test the
level of SARS-VOC-2 virus infection in such conditions.
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Conclusion(s)
Each of us encounters throughout our lives with various dimensions of culture,

some we like more, we look for them because they give us the opportunity to develop
our personality, because they give us spiritual well-being. Thus they give us the
opportunity to educate ourselves constantly and continuously, which is why we can see
culture and cultural rights as a dimension of the right to education.
From our point of view, cultural rights, regardless of how they are enshrined in
normative acts, such as freedom of art or access to culture, for example, are third
generation rights not only because they have been more recently enshrined in
fundamental international normative acts or national. Another argument is that in the
preamble of these normative acts, we can find different specifications to „the cultural,
religious and humanist heritage [of Europe], from which developed the universal
values that constitute the inviolable and inalienable rights of the person, as well as
freedom, democracy, equality and the rule of law”29, the signatories of these acts
wishing „to strengthen the solidarity between their peoples, while respecting their
history, culture and traditions”30.
Cultural rights are complex fundamental rights for the accomplishment of which it
is necessary to exercise other fundamental rights such as freedom of expression or
freedom of conscience, as we already mentioned above, rights that are at the
intersection of two broad categories of fundamental rights - the rights socio-economic
and cultural rights, on the one hand, and socio-political rights, on the other hand.
On the other hand, if such rights can be exercised without the support of the state,
the state is still obliged „to ensure the preservation of spiritual identity, support national
culture, stimulate the arts, protect and preserve cultural heritage”, as it is provided by art.
33 para. (2) of our Constitution, as does even the international community, protecting the
cultural and natural heritage of humanity31. These aspects reinforce our assertion that
cultural rights are part of the category of third generation rights.
Unfortunately, in some states, such as the Romanian state, cultural rights, as well
as other rights, are not given priority, and they are not targeted by policies intended
with priority. Perhaps this is also the reason for which in cases of major public health
crisis, such as a pandemic, they are easily and among the first rights sacrificed, by the
disproportionate restriction on their exercise.
Therefore, we consider that such a restriction is clearly disproportionate to the
benefits to each person who would have the opportunity to enrich spiritually, especially
in a pandemic period full of unprecedented challenges and restrictions on the exercise of
rights that profoundly affect the social character of any person, through measures that
29
These provisions are from the Preamble to the Treaty on European Union, the consolidated version of
which was published in the Official Journal of the European Union C 326, 26/10/2012 pp. 0001 - 0390.
30
Ibidem.
31
See, for example, the Convention concerning the Protection of the World Cultural and Natural
Heritage, adopted by the UNESCO General Conference at its seventeenth session, Paris, 16
November 1972, available at: https://whc.unesco.org/en/conventiontext/, accessed on: 20.05.2021
146
have made it impossible or at least quite limited, maybe by using electronic means and
computer applications, to access to culture, and is not necessary in a democratic society.
Cultural rights, but also other rights among which we mention the right to
education, are rights through the exercise of which it is almost impossible to obtain
some tangible benefits, financially quantifiable as soon as they are exercised, which is
why restricting on their exercise even to affect their existence is at handy for the
authorities, at least apparently, in the exercise of real discretionary power.
Such discretionary regulations adopted by government and local public authorities
confirms us the assertion according to what „among human rights, cultural rights have
always been considered as a sort of Cinderella”32.
Bibliography:
1. Ioan Muraru, Simina Elena Tănăsescu, coordinators, Constituţia României. Comentariu
pe articole, C. H. Beck Publishing House, Bucharest, 2008.
2. Jesse Prinz, Culture and Cognitive Science în The Stanford Encyclopedia of
Philosophy (Summer 2020 Edition), Edward N. Zalta (ed.).
3. Caterina Sganga, Right to culture and copyright: Participation and access, p. 4, in
C.Geiger (ed.), “Research Handbook on Human Rights and Intellectual Property”,
Edward Elgar, 2015.
4. https://dexonline.ro/definitie/cultura
5. https://dictionary.cambridge.org/dictionary/english/culture
6. https://www.constituteproject.org/constitution/
7. https://rm.coe.int/cmrec-2007-7-of-the-cm-to-ms-on-good-administration/16809f007c
8. https://plato.stanford.edu/archives/sum2020/entries/culture-cogsci/
32
Yvonne Donders, The Legal Framework of the Right to Take Part in Cultural Life, in: Yvonne Donders
and Vladimir Volodin (eds), Human Right in Education, Science and Culture: Legal Developments and
Challenges (Ashgate Publishing 2007), p. 232, quoted by Caterina Sganga, op. cit., p. 3.
147
Conference Paper
USE OF ADVANCED ELECTRONIC SIGNATURE

OR QUALIFIED ELECTRONIC SIGNATURE
IN THE LIGHT OF REGULATIONS INTRODUCED
BY EMERGENCY ORDINANCE 36/2021
Gheorghe LUCIAN*
Vlad BARBU**
Abstract: The flexibility and adaptation of labor relations to the current socio-economic
realities in relation to the dynamic evolution of the labor market, which in the context of an
already outlined economic crisis encounters numerous difficulties, is appreciated as opportune
and necessary. Establishing a climate of trust in the online environment is essential for the
economic and social development of a society. Lack of trust, mainly due to a lack of legal
certainty perceived by the public, causes consumers, businesses and public authorities to
hesitate to conduct transactions electronically and adopt new services. Digitization of
employment relationships, and for the use of advanced or qualified electronic signature
accompanied by electronic time stamp or qualified electronic time stamp and qualified
electronic seal of the employer in all documents necessary for their performance and
simplification of mechanisms for teleworking, including health and safety at work, is an
important measure taken by the authorities in our country. At the same time, in the current
context generated by the crisis caused by the pandemic, teleworking has accelerated, an
approach that, in essence, has been a real support for certain sectors of activity.
Keywords: digitization, advanced or qualified electronic signature, electronic time stamp,
qualified electronic time stamp
Introduction
Directive 1999/93 / EC of the European Parliament and of the Council1 regulated

electronic signatures without providing an appropriate cross-border and cross-sectoral
framework.
Regulation no. Regulation (EC) No 910/20142 of the European Parliament and of
the Council of 23 July 2014 on electronic identification and trust services for electronic
transactions in the internal market and repealing Directive 1999/93 / EC, came to
strengthen and extend the acquis of that Directive. The Commission Communication of
26 August 2010 entitled "The Digital Agenda for Europe" identified the fragmentation
of the digital market, the lack of interoperability and the rise of cybercrime as major
obstacles to the virtuous circle of the digital economy.
* PhD. Lecturer, ”Ovidius” University of Constanţa, Romania.

** PhD. Prof., „Alexandru Ioan Cuza” Police Academy of Bucharest, Romania.
1
Published in: Official Journal no. L 13 of 19 January 2000, pp. 12 - 20, currently repealed
2
Published in: Official Journal no. L 376 of 27 December 2006, pp. 36 - 68
148
Directive 2006/123 / EC3 of the European Parliament and of the Council requires
Member States to set up "one-stop shops" to ensure that all procedures and formalities
concerning access to and exercise of a service activity can be easily completed, remotely and
by electronic means, through the appropriate one-stop shop and the appropriate authorities.
Many online services accessible through one-stop shops require identification,
authentication and electronic signature. In most cases, citizens cannot use electronic
identification to authenticate their identity in another Member State because the national
electronic identification systems in their country are not recognized in other Member States.
That e-barrier prevented service providers from fully enjoying the benefits of the
internal market. Recognized electronic means of identification will facilitate the cross-
border provision of many services in the internal market and will allow businesses to
expand their business across borders without facing many obstacles in their interactions
with public authorities. Internally, the Labor Code, republished, with subsequent
amendments and completions, as a fundamental act regulating labor relations in
Romania, must reflect the economic reality in which these relations are manifested and
at the same time respond to the needs of the labor market in the context of crisis current
economic developments and with the correct anticipation of future developments4.
By the entry into force of Law no. 58/20215 for the approval of the Government
Emergency Ordinance no. 211/20206 on the extension of the application of some social
protection measures adopted in the context of the spread of the SARS-CoV-2
coronavirus, as well as for the modification of the Government Emergency Ordinance
no. 132/20207 on support measures for employees and employers in the context of the
epidemiological situation caused by the spread of the SARS-CoV-2 coronavirus, as
well as for stimulating employment growth, there was a need for greater flexibility of
working time for both employees and employers, which may determine the need to
conclude several additional documents to individual employment contracts.
In the current epidemiological reality, the way of carrying out professional
activities by means of distance communication has intensified and the failure to take
adequate measures in our legislation, in the social and economic field would have
caused serious damage with long-term effects on the situation of employees and other
categories.
1. Section
Law no. 53/2003 - Labor Code, republished 8, with the subsequent modifications
and completions stipulates the obligation to conclude the individual employment
3
Published in: Official Journal no. L 376 of 27 December 2006, pp. 36 - 68
4
https://static.anaf.ro/static/10/Anaf/legislatie/L_95_2006R.pdf
5
Published in the Official Gazette of Romania no. 345 of April 5, 2021
6
Published in the Official Gazette of Romania no. 1189 of December 7, 2020
7
Published in the Official Gazette of Romania no. 720 of August 10, 2020
8
published in the Official Gazette of Romania 345 of May 18, 2011. Republished pursuant to art. V of
Law no. 40/2011 for the amendment and completion of Law no. 53/2003 - Labor Code, published in
the Official Gazette of Romania, Part I, no. 225 of March 31, 2011, giving the texts a new numbering.
149
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contract in written form, in Romanian, at the latest the day before the beginning of the
activity by the employee9.
The obligation to conclude the individual employment contract in written form
rests with the employer 10. Correlating the legal aspects in force with the requests
coming from the representatives of the business environment, it was found that an
important problem in this field is the relative rigidity of the provisions regarding the
flexibility of the labor market.
Given the need for efficiency and continuous improvement of labor relations, as
well as the need to simplify procedures specific to the human resources activity, it was
necessary to regulate the possibility of the employer to use the advanced electronic
signature or qualified electronic signature accompanied by electronic time stamp or
qualified electronic time stamp and the employer's qualified electronic seal at the
conclusion of the individual employment contract / addendum to the contract. From a
practical point of view, we find several forms of electronic signature. Thus, the simple
electronic signature has a low level of trust.
It can be represented by the contact details entered in the e-mail signature, the
biometric signature (made on a tablet). With this type of signature you can sign
electronic documents with a low level of risk. The advanced electronic signature has a
medium level of trust.
It can be used to sign electronic documents with a medium level of risk (for
example, inside the company you can sign requests for leave, returns or forms).
Finally, the qualified electronic signature, based on a qualified digital certificate, offers
the highest level of trust. It is an advanced signature, created with a qualified electronic
signature-creation device and using a qualified certificate, is issued in accordance with
European Regulation eIDAS 910/2014 and is recognized in all Member States by a
qualified reliable service provider. Thus, through a recent regulation, respectively
O.U.G no. 36/202111, Article 16 of the Labor Code was amended by introducing seven
new paragraphs, respectively paragraphs (1 ^ 1) - (1 ^ 7), with the following content:
” (1 ^ 1) The parties may choose to use at the conclusion of the individual
employment contract / addendum to the contract, as the case may be, the advanced
electronic signature or qualified electronic signature, accompanied by the electronic
time stamp or qualified electronic time stamp and the qualified electronic seal of the
employer.
(1 ^ 2) The employer may choose to use the advanced electronic signature or the
qualified electronic signature, accompanied by the electronic time stamp or the
qualified electronic time stamp and the qualified electronic seal of the employer, for
drawing up all documents / documents in the field of employment relations individual
labor contract, during its execution or at the termination of the individual labor
contract, under the conditions established by the internal regulation and / or the
applicable collective labor contract, according to the law.
9
http://legislatie.just.ro/Public/DetaliiDocumentAfis/242068
10
Article 16
11
Published in the Official Gazette of Romania no. 474 of May 6, 2021
150
(1 ^ 3) Individual employment contracts and additional documents concluded by

using the advanced electronic signature or qualified electronic signature, accompanied
by the electronic time stamp or qualified electronic time stamp and the qualified
electronic seal of the employer, as well as the documents / documents in the field of
labor relations is archived by the employer in compliance with the provisions of the
Law on National Archives no. 16/1996, republished, and of Law no. 135/2007
regarding the archiving of documents in electronic form, republished, and will be made
available to the competent control bodies, at their request.
(1 ^ 4) The written form of the documents required by this law is considered
fulfilled even if the document is drawn up in electronic form and is signed with
advanced electronic signature or qualified electronic signature, accompanied by
electronic time stamp or qualified electronic time stamp and qualified electronic seal of
the employer, in accordance with the law.
(1 ^ 5) In the employer's relations with public institutions, when preparing
documents / documents in the field of labor relations / occupational safety and health,
the employer may use the advanced electronic signature or the qualified electronic
signature, accompanied by the electronic time stamp or qualified electronic time stamp
and qualified electronic seal.
(1 ^ 6) The employer may not oblige the person selected for employment or, as the
case may be, the employee to use the advanced electronic signature or the qualified
electronic signature, accompanied by the electronic time stamp or qualified electronic
time stamp and the qualified electronic seal of the employer, at the conclusion of the
contract. individual employment contract / addendum to the contract or other documents
issued in execution of the individual employment contract, as the case may be.
(1 ^ 7) When concluding the individual employment contract / addendum to the
contract or other documents issued in execution of the individual employment contract,
as the case may be, the parties must use the same type of signature, namely the
handwritten signature or the advanced or qualified electronic signature, accompanied
by the electronic time stamp or the qualified electronic time stamp and the qualified
electronic seal. "
The adoption of the above-mentioned amendments was necessary for certain
practical reasons such as:
- the evolution of the labor market and of the employer-employee relations
- the need to establish more flexible working relationships, which should ensure
the creation of conditions for the development of the business environment, while
ensuring the level of protection of employees
- changes induced by rapid technological developments, which represent real
considerable challenges for a labor market that is evolving at a fast pace
- the need for efficiency and continuous improvement of labor relations, as well as
the need to simplify the procedures specific to the human resources activity
In other words, supporting employers in using alternative forms of work and
simplifying procedures specific to the human resources activity, taking into account the
fact that the rules on physical distance, including at work, are still maintained, was
required, context in which teleworking is a desirable solution. According to the data
provided by the Labor Inspectorate, in March 2020, in the general register of
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employees were registered 50,577 individual employment contracts with telework

clause, in December of the same year were registered 383,300, and in March 2021
there are 394,415 such employment contracts.
Starting from these realities, the amendments introduced by O.U.G no. 36/2021
also affected Law no. 81/2018 on the regulation of telework activity 12.
According to the new changes, telework is defined as that form of work
organization through which the employee, regularly and voluntarily, fulfills his duties
specific to the position, occupation or trade he holds elsewhere than the workplace
organized by the employer, using information and communication technology.
Therefore, telework is applied in the fields of activity in which it is possible to carry
out the activity in this regime and the person who carries out your activity in these
conditions is called teleworker. The employer is entitled to verify the activity of the
employee mainly by using information and communication technology, under the
conditions established by the individual employment contract, the internal regulation
and / or the applicable collective labor contract, in accordance with the law. The
employer has the obligation to ensure conditions for the teleworker to receive sufficient
and adequate training in the field of occupational safety and health, in particular in the
form of information and work instructions on the use of display screen equipment: on
employment, on the introduction of new equipment at the introduction of any new
working procedure. The teleworker must carry out his activity, in accordance with his
training and instruction, as well as with the instructions received from the employer, so
as not to expose himself or other persons who may be affected by the actions to the risk
of injury or occupational disease; his omissions during the work process. The telework
activity is based on the agreement of the parties' will and is expressly provided in the
individual employment contract once it is concluded for the newly hired staff or by
additional act to the existing individual employment contract. If the employee refuses
to consent to the performance of the telework activity, the employer cannot unilaterally
modify the individual employment contract and cannot invoke a reason for disciplinary
sanctions. In order to fulfill their activities and attributions, the telemarketers organize
the work schedule in agreement with the employer, in accordance with the provisions
of the individual employment contract, the internal regulation and / or the applicable
collective labor contract, in accordance with the law. Of course, at the request of the
employer and with the written consent of the full-time employee, he may perform
additional work.
The individual employment contract is concluded and amended, as the case may
be, for the employees who carry out the telework activity, under the conditions
provided by the Labor Code.
At the same time, in the field of occupational safety and health of the teleworker,
the employer has the following specific obligations:
a) to provide the means related to information and communication technology and
/ or secure work equipment necessary for the performance of the work, unless the
parties agree otherwise;
12
published in the Official Gazette of Romania, Part I, no. 296 of April 2, 2018
152
b) install, inspect and maintain the necessary work equipment, unless the parties
agree otherwise;
c) to ensure conditions for the teleworker to receive sufficient and adequate
training in the field of occupational safety and health, in particular in the form of
information and work instructions, specific to the place where the telework activity is
carried out and the use of display screen equipment: to employment, to change the
place of work, to the introduction of new work equipment, to the introduction of any
new working procedure.
The employer must provide conditions for each worker to receive sufficient and
adequate training in the field of occupational safety and health, in particular in the form
of information and work instructions, specific to his job and position13.
The existing provisions are incumbent on the employer to ensure that the
employee receives sufficient and adequate training in the field of occupational safety
and health, in particular in the form of information and work instructions, specific to
the place of work.
With regard to occupational safety and health, at national level it is mainly
governed by:
- Law on safety and health at work, no. 319/200614, transposing into national law
Council Directive 89/391 / EEC15 of 12 June 1989 on the implementation of measures
to encourage improvements in the safety and health of workers at work, including the
rules implementing it, approved by Government Decision No 1425 / 200616,
- Government decisions transposing into national law the special directives of
Directive 89/391 / EEC
- Government decisions transposing European directives on minimum safety and
health requirements for the protection of young people at work, medical care on board
ships, protection of workers from the risks of exposure to asbestos at work, safety and
health at work work for employees employed under an individual fixed-term
employment contract and for temporary employees employed by temporary work
agents.
The fundamental principle of Directive 89/391 / EEC, transposed into national law
by the Law on Safety and Health at Work no. 319/2006, is that the employer has the
obligation to ensure the safety and health of workers in all aspects related to work, and
within its responsibilities, the employer is obliged to take the necessary measures to
inform and train workers.
Thus, the employer must ensure that each worker receives sufficient and
appropriate training in the field of safety and health at work, in particular in the form of
information and instructions specific to his job and job. At the same time, the training
must be adapted to the evolution of risks or the appearance of new risks, periodically
and whenever necessary.
The training of workers aims to acquire the knowledge and training of
occupational safety and health skills. It comprises three phases, namely introductory-
13
Stipulated in art. 20 of law no. 319/2006
14
published in the Official Gazette of Romania no. 646 of July 26, 2006
15
FIRST PUBLICATION: Official Journal no. L 183/1989, pp. 1 - 8
16
published in the Official Gazette of Romania no. 882 of October 30, 2006
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general, on-the-job and periodic training. The result of the training of workers in the
field of safety and health at work is recorded in the individual training file, according to
the model presented in Annex no. 11 to the methodological norms for the application
of Law no. 319/2006, indicating the material taught, the duration and the date of the
training. The individual training sheet is signed by the trained worker and by the
persons who performed and verified the training, being kept by the workplace manager.
The amendments concern the fact that the proof of training required by law can be
made in electronic format or on paper depending on the method chosen by the
employer, established by the internal regulations. advanced electronic signature or
qualified electronic signature accompanied by the electronic time stamp or qualified
electronic time stamp and the qualified electronic seal of the employer. The employer
may bear, in order to fulfill the legal obligations mentioned in this emergency
ordinance, the expenses for the acquisition of advanced electronic signatures or
qualified electronic signatures accompanied by the electronic time stamp or qualified
electronic time stamp and the qualified electronic seal of the employer, used for signing
documents. the field of labor relations / occupational safety and health.
Conclusion(s)
Given the European concerns about new forms of work and the measures
established in the current context, in order to ensure the health and safety of workers
and taking into account the policy of digitization and the use of electronic media, I
consider it appropriate to adopt recent amendments to the CD. work.
The means of electronic identification regulated by O.U.G no. 36/2021 will facilitate
the cross-border provision of numerous services on the internal market and will allow
enterprises to expand their activity across borders without facing many obstacles in
interactions with public authorities. Failure to adopt such measures could have led to
difficulties in the training process in the field of occupational safety and health in general,
a process which aims to acquire by workers the knowledge necessary for their work to be
carried out in compliance with the measures prevention measures established according
to the risks identified in the workplace, to protect their health, life, physical and mental
integrity, as well as other persons participating in the work process.
In conclusion, I appreciate that the introduction of recent regulations creates
advantages in the field of labor relations by regulating some measures of immediate
necessity for the development in good conditions of remote work, respectively work at
home and telework.
Bibliography:
1. Vlad Barbu, Gheorghe Lucian - Labor Law, university course, Sitech Publishing House,
Craiova, 2019
2. Directive 2006/123 / EC PUBLISHED IN: Official Journal no. L 376 of 27 December
2006, pp. 36 - 68
154
3. Directive 1999/93 / EC of the European Parliament and of the Council, PUBLISHED

IN: Official Journal no. L 13 of 19 January 2000, pp. 12 - 20, currently repealed
4. Law no. 58/2021 for the approval of the Government Emergency Ordinance no.
211/2020 on the extension of the application of some social protection measures adopted
in the context of the spread of the SARS-CoV-2 coronavirus, as well as for the
amendment of the Government Emergency Ordinance no. 132/2020 on support measures
for employees and employers in the context of the epidemiological situation caused by
the spread of SARS-CoV-2 coronavirus, as well as to stimulate employment growth,
published in the Official Gazette of Romania no. 345 of April 5, 2021
5. Law on safety and health at work no. 319/2006 published in the Official Gazette of
Romania no. 646 of July 26, 2006
6. Law no. 53/2003 - Labor Code, republished published in the Official Gazette of Romania
345 of May 18, 2011. Republished pursuant to art. V of Law no. 40/2011 for the
amendment and completion of Law no. 53/2003 - Labor Code, published in the Official
Gazette of Romania, Part I, no. 225 of March 31, 2011, giving the texts a new numbering.
7. GEO no. 36/2021, on the use of advanced electronic signature or qualified electronic
signature, accompanied by electronic time stamp or qualified electronic time stamp and
qualified electronic seal of the employer in the field of labor relations, and for amending
and supplementing normative acts, Published in the Official Gazette of Romania no. 474
of May 6, 2021
8. Government Emergency Ordinance no. 211/2020 on the extension of the application of
social protection measures adopted in the context of the spread of the SARS-CoV-2
coronavirus, Published in the Official Gazette of Romania no. 1189 of December 7, 2020
9. Government Emergency Ordinance no. 132/2020 on support measures for employees
and employers in the context of the epidemiological situation caused by the spread of
SARS-CoV-2 coronavirus, as well as to stimulate employment growth, Published in the
Official Gazette of Romania no. 720 of August 10, 2020
155
Conference Paper
INMIGRANT WORKERS DURING THE PANDEMIC

Nicoleta ENACHE*
Abstract: The pandemic has demonstrated the need for the work of unskilled workers,
seasonal workers and women caring for children and the elderly, most of whom are migrant
workers and despite the fact that they have been included in the vulnerable population.
Unfortunately, this category of people became "invisible" in 2020, and found itself in a hopeless
situation, that of not being able to return to their country of origin, of not having enough money
to stay in the country of origin. destination, or, not to have the necessary quality to be able to
obtain social benefits. These focused on "decent work for all", an approach to the 2030 Agenda
in "promoting sustained, inclusive and sustainable growth, full and productive employment and
decent work for all".
Keywords: Pandemic, inmigrant worker, vulnerability, poverty, inequality
The pandemic has caused not only disaster in the global health system but also an
unprecedented economic crisis. According to ILO estimates, up to 25 million people
could become unemployed, with a loss of workers' incomes of up to $ 3.4 trillion, but
economists say it is becoming clear that these figures may underestimate the magnitude
of the impact.
This pandemic has highlighted, in particular, the deep problems found in the labor
market, especially of workers in vulnerable situations (domestic workers, women,
seasonal workers). Effects are encountered from stopping the total activity of the
activity of many enterprises (hospitality, tourism, aviation sector, etc.), to reducing
working time or availability of staff and remote work (telework). Of course, especially
those who were already in a precarious situation of job loss (waiters, cooks, baggage
handlers, etc.) are affected.
In a world where only one in five people is entitled to unemployment benefits,
layoffs are a disaster for millions of families. In many cases, caregivers and delivery
people are not entitled to paid sick leave, and they are often pressured to continue
working even if they are ill.
Similarly, in the developing world, day laborers, day laborers, and informal traders
may experience the same pressure when they need to feed their families. No one will
escape these effects, we will all feel the pressure of the situation, the possibility of
losing our job, the possible illness with the virus, but in the long run, poverty and
inequality will increase dramatically. Government decisions need to be made to prevent
mass layoffs, ensure business continuity, protect vulnerable workers as they will affect
the health of our societies and economies for years to come. In particular, appropriate
measures will be needed for the most vulnerable workers, including the self-employed,
* Nicoleta Enache, PhD student at UNED-Madrid-Spain, International Doctoral School -Doctoral

Program in Law and Social Sciences; nenache1@alumno.uned.es; Lecturer Faculty of Law and
Administrative Sciences-UVT-nicoletaenache73@yahoo.com.
156
part-time workers and those in temporary employment, who may not be eligible for
unemployment or health insurance and those who are harder to reach.
While trying to flatten the growing curve of SARS COV-2 virus infection, special
measures are needed to protect the millions of health and care workers (most of whom
are women) who risk their own health every day. Truck drivers and navigators
delivering medical equipment and other essentials must be adequately protected.
Telework offers new opportunities for workers to continue working and employers to
continue their business during the crisis. However, workers must be able to negotiate
these working formulas in order to maintain a balance with other responsibilities, such
as caring for children, the sick or the elderly and, of course, for themselves. In order to
optimize the effectiveness of measures, it is imperative that governments work with
employers' organizations and trade unions to find practical solutions that keep the
population safe and protect jobs. These measures include income support, wage
subsidies and temporary redundancy subsidies for those in more formal employment,
tax credits for the self-employed and financial aid for businesses.
Among them, migrant workers have a special situation. ILO adopted in 1949
Convention no. 97 on migrant workers (later revised) for the recognition of the rights,
in particular, of immigrants in legal status (regular) and then in 1975 by Convention
No. 143 established not only the obligation of States parties to have a migration policy,
but recognized expressly states that human rights should be guaranteed, on an equal
footing, for all migrant workers, without prejudice to the provisions on immigration
status (regular or irregular)1.
ILO Conventions 97 and 143 on Migrant Workers include a set of rights,
including:
• Recognition of equal employment between migrant workers in a regular situation
and their national colleagues, including access to justice, working conditions, coverage
of the system social security, tax treatment and collective labor rights;
• The obligation of states to regulate labor migration, including free services
public recruitment, introduction and placement, as well as control of the activity of
employment recruitment agencies;
• Recognition of the fundamental human rights of all migrant workers, including
those in an irregular situation;
• The obligation of the state to formulate and implement a national policy aimed at
promoting and guaranteeing equal treatment in matters of work and profession, social
security, trade union and cultural rights and individual and collective freedoms for
persons in regular immigration status;
• Recognition of tripartism and social dialogue between: Ministries of Labor,
employers 'and workers' organizations, as necessary mechanisms for the labor approach
to be reflected in migration policies.
Currently, the situation of migrant workers has been extensively examined by the
ILO and has been addressed in various reports and key documents for just over a
decade. These include: „Resolution on a fair compromise for migrant workers in the
1
See, Migrant Workers 'Recommendation (revised), 1949 (No. 86) and Migrant Workers'
Recommendation, 1975 (No. 151).
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globalized economy", adopted at the International Labor Conference in 2004, „ILO

Multilateral Framework for Labor Migration: Non-binding Principles and Guidelines
for a rights-based approach to labor migration ”, adopted in 2005; Document
„Migration and labor development: IOM continues to move forward", prepared as a
basis for the tripartite technical meeting on labor migration developed in Geneva in
November 2013; then, in 2016, the Committee of Experts prepared the report on
„Promoting Fair Migration, a general survey on migrant workers’ tools ”, which will
be addressed in depth by the International Labor Conference in 2017, thus paying more
attention to implementation of the ILO on the issue of labor migration.
In 2011, the ILO Conference No. 189 took place, which addressed in particular the
situation of workers in the domestic sector, domestic work, domestic services, carers,
who are mostly migrants and especially women..2
Global recognition of migrant workers' rights is complemented by the
International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (1990), adopted by the United Nations, ratified so far by 49
states (18 from Latin America and the Caribbean3).This convention recognizes as
antecedents the standards adopted in the field of ILO and includes as a control
mechanism the intervention of a specialized body: the Committee on Migrant Workers.
The content of the Convention includes a catalog of rights recognized to migrant
workers and their relatives. According to the Convention, „migrant worker" is „any
person who is to carry out or pursue gainful employment in a State of which he is not a
national". As in other conventions, each of the rights is in turn complemented by the
principle of equality and non-discrimination.4.
On the other hand, it should be noted that many international treaties on the
protection of the human rights of immigrants contain provisions that include migrants,
and this has been increasingly reflected in the Recommendations to States Parties and
in case law or in the interventions of the Office of the Special Rapporteur. for the
human rights of the United Nations.
There are other human rights mechanisms created under the Charter of the United
Nations, in addition to international treaties. These include the Rapporteur on the
Rights of Migrants, who has the mandate to prepare and present thematic reports to the
Human Rights Council and the General Assembly. These documents provide an
opportunity to make diagnoses on issues that affect the protection of human rights of
migrants in the world, in a region or a group of countries. Furthermore, the mandate of
the Special Rapporteur covers all countries, whether or not it is a state that has ratified
the International Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families.
2
See art. 8 of ILO Convention 189M
3
At the regional level, the Convention has relations in Argentina, Belize, Bolivia, Chile, Colombia,
Ecuador, El Salvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, Nicaragua, Paraguay, Peru,
Saint Vincent and the Grenadines, Uruguay and Venezuela.
4
Article 1 states that the Convention applies to all migrant workers and members of their families
without distinction. Article 7 also contains the most extensive list of those found in human rights
treaties on grounds of discrimination, which include "sex, race, color, language, religion or belief,
political or other opinion, origin, ethnicity." , nationality, age, economic situation, patrimony, marital
status, birth or any other condition ”.
158
In addition to the rights already recognized in various treaties (life, personal

integrity or some rights, among others), the Convention establishes specific rights and
guarantees for migrant workers and their family members (without prejudice to their
immigration status), taking into account the vulnerable situation. which is.
The most up-to-date information available on international migration comes from
the UN Department of Economic and Social Affairs. According to this report, there are
currently over 244 million migrants in the world, of which almost half (48%) are
women. The Latin American and Caribbean regions are the majority emitters, while 37
million migrants (15% of the total) come from the countries that make it up, while only
9 million migrants (4%) live in the region.
The ILO estimates, globally, show that there are 150 million migrant workers,
mostly men (55.7% of the total), but in recent years there has been a growing
phenomenon of feminization of migration and a strong increase in the role women in
the workforce lately.
The main migratory corridors continue to move to the northern countries, mainly
to the United States and various European countries, but in recent decades the
importance of migration to the countries of the Persian Gulf or Southeast Asia has
increased to the point that, at globally, there are currently about the same number of
south-south migrants as south-north5.
On the one hand, the majority of migrant workers tend to be included in sectors
and economic activities that have lower wages and, in general, worse working
conditions.
In this sense, the levels of informal work to which they are exposed - and as a
consequence, the lack of social protection - in many of the destination countries, they
are substantially higher than those of domestic workers. In addition, migrant workers
face negative human rights effects that go beyond strictly labor issues, including
violations of social rights in general (health, education, housing, etc.), restrictions and /
or difficulties in accessing justice, situations of arbitrary detention and expulsions
without recourse, some forced family separations due to their immigration status and,
more generally, situations of violence, xenophobia and discrimination which, in many
cases, are supported by regulatory frameworks. who see migration as a potential threat.
The profile of migrants is not uniform. The average age of immigrants is 39 years.
Migration is also significant among children and adolescents. Regarding the
educational level, the situation is more uneven and in some migration corridors it is
verified that migrants have a higher level of education, on average, than that of the
citizens of the destination country.
The working conditions of most migrant workers in the destination countries are
far from being characterized as "decent work". Indeed, they have a greater presence,
compared to domestic workers, in the informal economy, they usually receive lower
wages and tend to be exposed to longer working hours and, in general, poorer working
conditions. , unprotected and unsafe6.
5
UNDESA, 2016.
6
Informality among migrant workers is 50% higher than that of their fellow citizens..
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At the regional level, there are various models in the treatment of labor migration,
both in terms of content and levels of implementation of social policies.
Indeed, although progress has been made in recent years, they have had varying
degrees of development and in turn this has been limited to each of the integration
areas (South America, America, Central and Caribbean Community, EU). In the hard
times of the Pandemic, migrant workers, despite all these legal instruments, suffered
many inequalities that started from the very „restriction of the right of movement".
The great fear lies in the increase in the number of human trafficking and modern
slavery, in the increase in the number of people working illegally and in difficult to
describe conditions, facing the danger of becoming ill with the killer virus, not being
able to have the necessary treatment or vaccine doses. . However, the people we are
talking about, the domestic workers, take care of the children and parents of the
natives. It is a paradox that such people are not included in the category of people in
the first line. The lack of coherence between international norms and local normative
systems is a first challenge to be overcome in order to generate mechanisms, both at
national and regional level, that guarantee the rights of migrant workers and their
family members, their integration in social protection systems. .
We must not forget the seasonal workers, those in agriculture, who do not have a
permanent employment contract, and who can always be subject to discrimination and
inequality, especially with regard to remuneration and working conditions.
The involvement of the Ministries of Labor of both states is obviously necessary.
A control of employment agencies is also obviously necessary, all in order to prevent
possible abuses.
Migrant workers are often the first to be laid off, but the last to be able to access
tests or treatments. They are often excluded from national policy responses to COVID-
19, such as wage subsidies, unemployment or social security and social protection
measures. In cases where access to COVID-19 testing or medical treatment is
available, they may not be afraid to be detained or deported, especially those who find
themselves in an irregular situation. In some cases, travel restrictions have resulted and
migrants are trapped in their countries of destination, with few options to return to their
country of origin.
Dismissals of migrant workers not only often lead to loss of income, but also to
the expiration of visas or work permits, so that they may find themselves in an irregular
situation. Travel restrictions have also led to the loss of many jobs where migrant
workers had a contract and for which many had to pay commissions and employment
costs, which have as negative effects the bondage of debt and human trafficking. The
loss of income also causes the remittances sent by migrants to their families in their
country of origin to be reduced.
That is why governments should continuously and systematically include migrant
workers in the beneficiary population in their COVID-19 responses, paying particular
attention to the needs of migrant workers, including the greatest risk of violence during
detention and quarantine.7.
7
Rates of domestic violence are increasing during the pandemic, as is often the case during
emergencies: ww.channelnewsasia.com; www. theglobeandmail.com; www.themarshallproject.org.
160
Migrant workers must be included in access to social protection, access to public

health services, as well as nationals, and also ensuring their legal status in terms of
documents. At most, they must have access to, and be facilitated to access, relevant
information, especially on COVID and safety measures, on legal, legal measures on the
workplace, training and equipment with masks and disinfectant.
Bibliography:
1. Migrant Workers 'Recommendation (revised), 1949 (No. 86)
2. Migrant Workers' Recommendation, 1975 (No. 151).
3. ILO Convention 189M
4. The Convention has relations in Argentina, Belize, Bolivia, Chile, Colombia, Ecuador,
El Salvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, Nicaragua, Paraguay,
Peru, Saint Vincent and the Grenadines, Uruguay and Venezuela.
5. UNDESA, 2016.
161
Conference Paper
CIVIL OFFENCE LIABILITY OF PUBLIC

AUTHORITIES IN THE PERIOD OF EMERGENCY
Delia-Mihaela MARINESCU*
Dragoş-Lucian RĂDULESCU**
Abstract: The COVID-19 pandemic led to the adoption of measures by public authorities
both at central and local level to try to limit the spread of the virus, with an impact not only on
public health but also on the very state of state organization, leading to the creation of a
complex regulatory framework that responds to international requirements and rapid changes
in the global context. In these conditions, Romania during the state of emergency complied with
world rigors and regulated in the field of epidemiological management both by military
ordinances, by Ministerial Order and by other provisions with lower legal force, which state
authorities were obliged to respect and implement them. The main objective of this research is
related to the need to present national regulations on the establishment of the measure of
institutionalized quarantine and isolation at home, as well as how to apply them by public
authorities. The article analyzes the legal norms adopted during the state of emergency, in
relation to verifying the fulfillment of the conditions of tortious civil liability for the actions of
public authorities, in relation to the moment of enactment and application of provisions, not to
subsequent issues or decisions. The article starts from the exposition of the legal framework in
which the legal regulations were adopted by the Romanian State during the state of emergency,
their importance at the time of their adoption, with reference to the approach of tortious civil
liability of public authorities for compliance and enforcement in application of these legal rules.
Keywords: civil offence liability, public authorities, state of emergency, institutionalized
quarantine, isolation at home
Introduction
The need to regulate the institution of tortious civil liability was generated by the
need to create a legal framework for reparation of damages created by committing
illegal acts, by applying a civil sanction in consideration of the perpetrator's assets1.
If initially the incurrence of tortious civil liability was associated with the
commission of an illicit act by a natural person, later the dynamics of social relations
determined the recognition as a subject of law in this case and of legal persons, both
public and private law, this type of liability having a direct, autonomous and main
character, not being conditioned by the finding of the existence of a tortious civil
liability and in charge of the civil servants within the state authorities, for personal
deeds.
* PhD, Titu Maiorescu University of Bucharest, Romania, Lawyer, delia.marinescu@ymail.com.

** Lecturer Phd., Petroleum and Gas University of Ploieşti, dragosradulescu@hotmail.com.
1
Adam, Ioan, Drept Civil. Obligaţiile. Faptul juridic licit în reglementarea NCC, CH Beck Publishing
House, Bucharest, 2014, 2013, p. 185.
162
The conditions of tortious civil liability must be verified in the situation of

attracting the responsibility of public authorities through the analysis of public and
private interest, the link between citizen and public authority being analyzed in a
broader context, compliance by institutions with legal provisions, guaranteeing the
security of legal relations and maintaining social order2.
Being a special type of liability that derives from the participation of the legal
person in the civil legal circuit, the doctrine3 ruled that the proof of its guilt is made by
reference to the activity carried out by the representative bodies of the public authority,
on the occasion of exercising their functions, the analysis of the illicit character of the
deed being related to the verification if it was committed in fulfillment of a legal
provision or with the law4, identifying in practice situations in which certain actions of
state bodies that may cause harm to certain subjects of law have not been considered
illicit deeds, but, nevertheless, the imperative to comply with the legal provisions under
which these measures were taken will prevail over private interest5.
1. The factual context of the adoption of the normative framework

during the state of emergency
The year 2020 is a global milestone, the countries of the world facing a global
crisis generated by the emergence and rapid spread of the SARS-CoV-2 virus, which
has had repercussions not only in the field of public health, an area with an impact on
all citizenship6, but it has had important consequences for the whole sphere of human
activity, requiring a rapid adaptation of state policies to the new international context
and the necessary measures being taken by public authorities at central and local level
to limit the spread of the virus.
We take into account the fact that the field of public health is an element that has a
coordinating role of health measures applicable to citizens, the regulatory framework
containing strict regulations and well-defined sanctions in the field of violations of the law.
Practically, each democratic society has regulated an institutionalized mechanism
for controlling the measures during the state of emergency, necessary to outline the
activity of local or central public authorities.7, in order to comply with the aspects
identified with the legal norms, such attributions in matters of public health belong, for
example, to the specialized departments within the County Public Health Directorates.
2
Boilă, Lacrima Rodica, Răspunderea civilă delictuală. Ediţia 2, CH Beck Publishing House, Bucharest,
2014, p. 429.
3
Stătescu, Constantin, Bîrsan, Corneliu, Tratat de drept civil. Teoria generală a obligaţiilor, Publishing
House of the Academy of the Socialist Republic of Romania, Bucharest, 1981, p. 217.
4
Idem, p. 185.
5
Adam, Ioan, op. cit. , p. 292.
6
Rădulescu, Dragoş - Lucian, Aspecte vizând constatarea contravenţiilor din domeniul sănătăţii publice,
article published in the Annals of the “Constantin Brâncuşi” University of Târgu Jiu, Legal Sciences
Series, No. 4/2020, p. 15-26.
7
Apostol Tofan, Dana, Puterea discreţionară şi excesul de putere al autorităţilor publice, ALL BECK
163
Conference Paper
In this regard, the executive branch has acquired new powers, on the basis of
which it could limit individual rights and adopt regulations including in areas that
traditionally belonged to the legislator, the measures imposed on both civil society and
public authorities and restricting the right to life. private, but in compliance with the
requirements of necessity, proportionality, having a temporary character and a solid
legal basis8.
At the same time, taking action in the context of the pandemic was reported to
achieve a legitimate goal in a democratic society, which is related to ensuring public
health, given that the virus spread quickly and no other methods were identified to limit
it to at that time, the restrictions imposed being appreciated at that time as the only
effective way to limit the virus.
It should be noted that the general rule states that the restriction of the exercise of
certain rights and freedoms must be exceptional, being conditioned by the existence of
an extraordinary situation, such as the impact on public health by the COVID-19 virus,
which operates indiscriminately not only at Romanian State, but also at European and
international level, by virtue of the essential function of state entities to ensure the
security of community members9, especially in the conditions in which it is recognized
10 the significant importance of protecting and promoting human rights in the normal
life of citizens.
In accordance with the global epidemiological situation generated by the
appearance and spread of the COVID-19 virus, on March 16, 2020, the President of
Romania promulgated Decree no. 195/16 March 2020 on the establishment of a state of
emergency in Romania for a period of 30 days given the evolution of the international
epidemiological situation caused by the spread of SARS-CoV-2 coronavirus and the
massive increase in the number of infected people, normative act was doubled by
military and Order ordinances of the Ministry of Health, imposing exceptional
measures, applicable to the entire population of Romania.
Thus, the normative policy of the Romanian State11 during the state of emergency
in order to prevent and limit the effects of the pandemic required placement under the
measure of institutionalized quarantine for people coming to Romania from countries
with high epidemiological risk, considered red areas and isolation at home for those
coming from yellow countries, who had entered in contact with people with symptoms
who had traveled to areas with extensive community transmission, who had come into
8
European Parliament resolution on the impact of measures against COVID-19 on democracy, the rule
of law and fundamental rights, available online at https://www.europarl.europa.eu/doceo/document/B-
9-2020-0343_EN.html, accessed on 17.05.2021.
9
Dumitru, George – Dorinel, Bantaş, Dragoş – Adrian, Controlul democratic asupra sectorului de
securitate - privire comparativă asupra modelului european şi aplicării acestuia în România, article
published in Revista Gândirea Militară Românească, no. 1-2 /2018, p. 172-185.
10
Braşoveanu, Florica, Consideraţii privind protecţia drepturilor omului la nivel european, article
published in the Annals of the “Constantin Brâncuşi” University of Târgu Jiu, Legal Sciences Series,
No. 3/2015, p.27-34.
11
Order no. 414/2020 on the establishment of the quarantine measure for persons in an international
public health emergency determined by COVID-19 infection and the establishment of measures to
prevent and limit the effects of the epidemic, published in the Official Gazette of Romania no. 201 /
12.03.2020.
164
direct contact with people who had been confirmed with coronavirus, but also for
family members of the people presented in the previous hypotheses.
The institutionalized quarantine measure involved the obligation to stay for a
period of 14 days, in specially arranged spaces, designated as quarantine locations by
local authorities, by decisions of the County Committees for Emergency Situations, the
purpose of this measure being to try to reduce COVID-19 cases in Romania, given the
high number of cases in other countries, but also the consequences on the health of the
population.
Therefore, the general recommendations worldwide were in the sense of limiting
contact between individuals or groups of people to limit the spread of the virus, and the
constant recommendations of the Romanian authorities at central and local level were
in the same direction, the measures implemented were adopted by the Romanian state
precisely for this purpose.
Including in the statement of reasons that was the basis for the adoption of Decree
no. 195/16 March 2020 regarding the establishment of the state of emergency on the
Romanian territory published in the Official Gazette no. 212/16 March 2020 refers to
the restriction of the exercise of fundamental rights and freedoms in this very special
context, considering that without these measures, the other actions carried out would
not have the expected effect of reducing the number of COVID-19 cases, which it
would have a particularly serious impact in particular on the right to life and, in the
alternative, on people's right to health.
Thus, the COVID-19 pandemic was considered a completely exceptional situation
which, in order to protect the general public interest, required the restriction of certain
rights, pursuing a legitimate aim, necessary in a democratic society, measures that are
proportionate to the aim pursued.
Therefore, related to the state of emergency, on March 18, 2020, the Romanian
State through the Ministry of Foreign Affairs sent a notification based on art. 15 of the
European Convention on Human Rights derogating from the provisions of the
Convention, taking into account the measures that had been adopted exceptionally by
the Romanian authorities that restricted the exercise of certain rights and freedoms.
2. Conditions of civil offence liability
In order to incur the civil offence liability of the public authorities at local level for
the observance and implementation of the special legislation adopted during the state
of emergency, it is necessary to meet 4 cumulative conditions: committing an illegal
act, guilt in committing the act, creating damage and connection of causality between
the deed and the damage, conditions that must be related to the legal attributions of the
public authority, but also to the activity carried out.
Thus, regarding the condition of the illicit deed, the specialized doctrine12
considered that committing an act in compliance with a legal provision or with the
12
Adam, Ioan, Tratat de drept civil. Obligaţiile, Volumul II. Responsabilitatea civilă extracontractuală.
Faptul juridic licit, CH Beck Publishing House, Bucharest, 2021, p. 386.
165
Conference Paper
permission of the law can not be considered an illegal act, this criterion being
necessary to be interpreted in relation to the concrete situation, if the public authority
acted in good faith, within the limits of legal powers , in compliance with legal
formalities, the actions taken being fully justified by the international epidemiological
context, without being contrary to law, excessive or unreasonable.
The measures of institutionalized quarantine and home isolation were established
by a normative act, respectively WHO no. 414/2020, the legislative regulation of the
legal norms adopted starting with the establishment of the state of emergency on March
16, 2020 with reference to measures to prevent the spread of SARS VOC-2 virus not
being part of the competences of local public authorities, whose task was to implement,
not the issuance of legal norms or their interpretation.
Thus, the public authorities could not, according to the law, not carry out the legal
provisions adopted in a completely exceptional period not only in Romania, but
globally, especially given that the pandemic generated by the COVID-19 virus affected
all countries in the world that acted similarly to Romania, taking consensus measures
to limit the spread of the virus.
The fact that the normative policy of the Romanian State obligatorily imposed the
institutionalized quarantine for a period of 14 days, in specially arranged spaces made
available for the persons who came from the countries with high epidemiological risk
in accordance with the provisions of art. 1, para. 2 of WHO no. 414/2020 and does not
create the possibility of choosing an alternative measure, namely isolation at home,
provided that it was proved that the person in question owned a building where he
could have lived alone for 14 days cannot be imputed to the public authorities. locally.
Reported to the special situation of the state of emergency, but also to the legal
norms in force, the public institutions at local level had the obligation to apply exactly
the special rules and the specific, extraordinary procedures adopted, otherwise
committing themselves a criminal act, the application exactly the legal provisions.
Limiting contact between persons was considered to be beneficial also for persons
against whom the measure of institutionalized quarantine was established in designated
locations to protect their health given the possibility of rapid spread of the virus in case
one of them was positive for SARS VOC-2.
At the same time, it should be mentioned that in accordance with the
Methodologies for surveillance of acute respiratory syndrome with the new
Coronavirus (COVID-19) issued by the National Institute of Public Health Romania13
it was provided that in the case of persons coming from the red areas, the quarantine
measure is applied immediately after arrival in Romania, for 14 days in the spaces
specially designed for this purpose, collecting respiratory samples on day 1,
respectively 12 and 13 of quarantine, and removal from quarantine was done after 2
negative test results for the samples on days 12 and 13.
In relation to these provisions, it should be noted that the tests performed during
the institutionalized quarantine period were meant to monitor the health of persons
coming from abroad, so that in case of COVID-19 symptoms or a positive test, they are
transported. to a medical unit for appropriate treatment.
13
Disponible online at https://www.cnscbt.ro/
166
Thus, the tests with negative results were not intended to interrupt the measure of
institutionalized quarantine or replace it with the measure of isolation at home,
especially given that the 14 days were considered by the WHO as the period in which
specific symptoms of COVID-19 may occur therefore, the negative result of the test on
day 1 was not a clear proof of the fact that the person could not develop specific
symptoms during the other days.
It should be noted that these methodologies were frequently updated, but even if
they subsequently provided for testing only in the event of specific symptoms of
COVID-19, the measure of institutionalized quarantine was not high, taking into
account the fact that at the time of emergency , adopted immediately after the onset of
SARS COV-2 virus, specific measures have been taken worldwide to prevent and stop
the spread of the virus, provided that, as specified in the Methodology for the
surveillance of acute respiratory syndrome with the new Coronavirus (COVID- 19)
updated on 16.03.2020, at that time the situation generated concern, especially due to
the fact that there was little knowledge about the characteristics of the virus, about how
it is transmitted inter-human, about how severe it is and how to treat it.
Under these conditions, in compliance with the legal provisions for persons
coming from the red areas, based on art. 1, para. 3 of WHO no. 414/2020, the measure
of home isolation could not be instituted because they did not meet the legal
requirements, so that, correctly, the public authorities instituted, in accordance with the
legal norms in force at that time, the measure of institutionalized quarantine for these
persons. for the protection of the life and health of both them and the other Romanian
citizens.
Regarding the guilt, we consider that it must be related to the action of the
representatives of the public authorities at local level and to the observance of the legal
provisions in force at the time of their application, being absolutely necessary that the
perpetrator had the representation that he committed an illegal act., to deliberate on this
matter and to implement its decision, to take this decision in full knowledge of the facts
and to have a conscious consequence of committing an illegal act
At the same time, it should be mentioned that in this case the guilt is not
presumed, but must be proved by the interested party in relation to the whole factual
context, considering the application of the regulations in force and the
recommendations given by the Romanian state authorities, but also by the
organizations. to limit the spread of SARS VOC-2 virus.
Thus, in the conditions in which the perpetrator of the alleged illicit deed did not
have the representation of his deed and did not pursue the occurrence of a prejudice
and which neither should nor could objectively foresee them14, aspects that are
respected regarding the activity of the Romanian public authorities that have applied
some legal norms adopted in a special international epidemiological context generated
by the Covid-19 pandemic.
Regarding the moral damage created, placing a person under the measure of
institutionalized quarantine, without the legislation giving him the possibility to opt for
14
Pop, Liviu, Popa, Ionuţ – Florin, Vidu, Stelian Ioan, Tratat elementar de drept civil. Obligaţiile conform
noului Cod Civil, Universul Juridic Publishing House, Bucharest, 2012, p. 450.
167
Conference Paper
another measure, this aspect is related to the normative policy of the Romanian state at
that time and not to the concrete application of the provisions by local public
authorities.
In order to attract tortious civil liability, the damage created must be the result of a
violation of a subjective right or a legitimate interest of the person who claims to be the
victim of an illicit act15, personal injury in this case being necessary to be related to an
exceptional international situation and to the imperative of guaranteeing the right to
public health for all citizens of the state.
Thus, given that the international regulatory policy and the constant
recommendations of world bodies were in the sense of taking measures to limit contact
between people in an attempt to reduce the spread of the SARS-CoV 2 virus, it can not
be considered that by applying certain rules infringed a legitimate right or interest of
the potential victim.
At the same time, it should be specified that public authorities cannot be held
liable for alleged illegal acts committed by third parties or institutions that are not in
any type of legal relationship, the application of legal provisions may be imputed
exclusively to them. .
As regards the causal link between the act and the damage, given that there is no
clear evidence that the commission of an unlawful act by the public authorities has
given rise to damage, it is more than obvious that that condition cannot be detained
without fulfilling the other two.
The analysis of the causal link must be related to the relevant legal provisions
during the state of emergency and to the concrete activities carried out by the public
authorities for the implementation of the legal rules at that time, without taking into
account extrinsic circumstances unrelated with these authorities or related to the ways
of managing the respective living space, to which there is no type of contractual
relationship, nor any subordination.
Conclusions
The measures adopted by the Romanian State in the international epidemiological

context created by the COVID-19 pandemic were in consensus with the regulations
adopted worldwide, Romania not being the only country that created a special
normative framework for regulating the measure of institutionalized quarantine or
home isolation with the aim of limiting contact between groups of people, in
accordance with the recommendations issued in the spirit and in accordance with the
recommendations of the World Health Organization.
In the analysis of the conditions of civil offence liability of the public authorities
of the Romanian State related to the adoption of legal norms related to the necessary
measures for pandemic management, the manner of norms in force related to the state
of emergency must be verified, without taking into account legislative changes
15
Adam, Ioan, Drept Civil.Obligaţiile. Faptul juridic licit în reglementarea NCC, CH Beck Publishing
House, Bucharest, 2013, p. 509.
168
subsequently completing or modifying the previous legal framework, the verification

of the fulfillment of the criteria being imperative to refer exclusively to the form and
content of the legal texts in force in that period.
Therefore, we consider that the adoption of the RCC Decision no. 152 /
06.05.2020 which establishes the need to adopt a law to impose measures restricting
the rights and freedoms of persons may not influence the legality and application of
legal rules for the period of emergency, especially given that the provisions of art. 147,
para. 4 of the Romanian Constitution republished in 2003 state that the decisions of the
Constitutional Court have power only for the future, so that compliance with state
policy must be assessed in the context generated by the state of emergency caused by
the community spread of COVID-19 virus.
In view of the above, we consider that in the present situation the tortious civil
liability of the public authorities cannot be attracted, provided that they acted in full
legality and in accordance with the rules and procedures that were applicable to all
persons involved. an identical situation during the state of emergency.
Bibliography:
1. Adam, Ioan, Drept Civil. Obligaţiile. Faptul juridic licit în reglementarea NCC, CH
Beck Publishing House, Bucharest, 2013.
2. Adam, Ioan, Tratat de drept civil. Obligaţiile, Volulul II. Responsabilitatea civilă
extracontractuală. Faptul juridic licit, CH Beck Publishing House, Bucharest, 2021.
3. Boilă, Lacrima Rodica, Răspunderea civilă delictuală. Ediţia 2, CH Beck Publishing
4. Braşoveanu, Florica, Consideraţii privind protecţia drepturilor omului la nivel
european, article published in the Annals of the “Constantin Brâncuşi” University of
Târgu Jiu, Legal Sciences Series, No. 3/2015.
5. Dumitru, George – Dorinel, Bantaş, Dragoş – Adrian, Controlul democratic asupra
sectorului de securitate - privire comparativă asupra modelului european şi aplicării
acestuia în România, article published in Revista Gândirea Militară Românească, no. 1-2
/2018.
6. Pop, Liviu, Popa, Ionuţ – Florin, Vidu, Stelian Ioan, Tratat elementar de drept civil.
Obligaţiile conform noului Cod Civil, Universul Juridic Publishing House, Bucharest,
2012.
7. Rădulescu, Dragoş - Lucian, Aspecte vizând constatarea contravenţiilor din domeniul
sănătăţii publice, article published in the Annals of the “Constantin Brâncuşi”
University of Târgu Jiu, Legal Sciences Series, No. 4/2020.
8. Stătescu, Constantin, Bîrsan, Corneliu, Tratat de drept civil. Teoria generală a
obligaţiilor, Publishing House of the Academy of the Socialist Republic of Romania,
Bucharest, 1981.
169
Conference Paper
THE RIGHT TO WORK OF INMIGRANTS

WORKERS IN SPAIN
Gratiela-Florentina MORARU*
Abstract: The migratory phenomenon highlights its social character, so that

immigrants emigrate largely to develop a professional activity. The imposition of legal
restrictions and limitations postpones the emancipatory argument of social integration by
effectively guaranteeing human rights for all. Migratory flows affect 281 million people
worldwide, an important issue that invites us to reflect on possible factors of direct
influence on this phenomenon. Addressing the issue of immigration in a context of health
emergency, as well as the irreversible consequences of the austerity policies promoted
during the economic and financial crisis of 2008 is complex due to the nuances that this
phenomenon acquires in light of social, economic and health situations. The legislative
response to the reality of migratory flows was not as expected as, in Spain, since 2000, the
reforms incorporated in the Organic Law on Immigration have led to the restriction of
individual rights and groups of illegal immigrants. These had to be corrected by the
doctrine of the Constitutional Court through a list of decisions that classify the r eforms
incorporated by LO 8/2000 as unconstitutional.
Keywords: immigration, human rights, work, dignity, social citizenship.
Introduction
The right to work constitutes a central element in the integration of foreign

immigrant workers, being a key aspect to reduce the risk of social exclusion that
foreigners present1. In this sense, immigration can be defined as a movement of
people from a country of origin to a host country with the aim of establishing the
immigrant in the latter for a long period of time or permanently2. The Constitution
establishes the freedom to emigrate and confers protection to the economic and social
rights of Spanish workers abroad but does not grant the same treatment to
foreigners3. Focusing on the literality of art. 35 CE, this precept contemplates the
right to work of all Spaniards, but regarding the regime applicable to foreigners we
have to consult art. 13.1 CE, which prescribes the recognition of public rights and
freedoms in the terms established in the treaties and in the law. However, once they
* Professor at the University of Castilla-La Mancha, Albacete (España), Gratiela.Moraru@uclm.es.

1
TRIGUERO MARTÍNEZ, L. A., El estatuto jurídico laboral del trabajador extranjero inmigrante,
Bomarzo, Albacete, 2008, pp. 88-89.
2
FERNÁNDEZ DOCAMPO, M. B., FERNÁNDEZ PROL, F. y LOUSADA AROCHENA, J. F., “Políticas
de empleo (IV): políticas destinadas a colectivos especiales” in CARDONA RUBERT, M. B. y
CABEZA PEREIRO, J. (coords.), Políticas sociolaborales, Civitas, Navarra, 2014, pp. 404-405.
3
The art. 42 SC provides the following: "The State will especially ensure the safeguarding of the
economic and social rights of Spanish workers abroad and will guide its policy towards their return".
170
have access to work, the working conditions must be equal between spaniards and
foreigners4.
Before delving into the constitutional right to work, it should be noted that, in
2021, Social Security has an average of 2.072.259 foreign workers registered in the
system at the national level, while in Castilla-La Mancha the number of foreign
workers registered in Social Security is 65.333. It should be clarified that 32.159 of the
65.333 foreign workers come from the European Union, while 33.174 are from third
countries.
1. Ownership of the right to work: a special reference

to the case of immigrant foreigners
The art. 35.1 CE confers on Spaniards the right to work and the duty to work, a
postulate that does not allow to affirm without more than that foreigners lack this right,
since the constitutional text only outlines a limitation to the recognition of rights contained
in art. 13.2 CE relative to the restriction of their political rights. This first approximation
allows us to point out that, in principle, the ownership of the right to work of foreigners
should not be excluded5. As BAYLOS GRAU rightly points out, "no one doubts that one of
the purposes of the Spanish Constitution of 1978 was the democratization of labor relations
as a necessary condition for a democratic system as a whole"6.
The constitutional consecration of the right to work and its attribution only to
Spaniards is fundamentally surprising because of its character as a social right and
because of its universality. Faced with the formulation of the right to work, we must
defend a contemplation of this right without specifying and advocating universal
recognition precisely because of its nature as a social right to work7. However, its
extension has been recognized to immigrant foreigners, with the right to work being a
right of legal configuration regulated in the Organic Law of Rights and Freedoms of
Foreigners in Spain and their social integration (from now on LOEx)8. The
Constitution is inspired by international legality and international treaties on
fundamental rights. We have to remember that art. 10.2 CE converts international
standards for the guarantee of human rights into an interpretive reference for internal
standards9. Thus, international treaties do not constitute per se a unit of measurement of
4
SERRANO ARGÜESO, M., “Las modificaciones de la Ley de Extranjería en los aspectos sociales
¿retroceso o adaptación al Derecho Europeo?” in AEDTSS, Derechos y libertades de los extranjeros
en España, XII Congreso Nacional de Derecho del Trabajo y de la Seguridad Social, Tomo I,
Gobierno de Cantabria, 2003, pp. 406-407.
5
URIARTE TORREALDAY, R., “El derecho al trabajo y los extranjeros irregulares”, Revista de Derecho
Político, nº 78, 2020, p. 269.
6
BAYLOS GRAU, A., “El derecho al trabajo como derecho constitucional” in SALINAS MOLINA, F. y
MOLINER TAMBORERO, G. (dirs.), La protección de derechos fundamentales en el orden social,
Consejo del Poder Judicial, Madrid, 2005, p. 15.
7
AROS RAMÍREZ, F., “La naturaleza del derecho al trabajo como derecho social fundamental”,
Cuadernos electrónicos de Filosofía del Derecho, nº 3, 2000, https://www.uv.es/cefd/3/arcos.htm,
consultado el 5 de febrero de 2021.
8
TRIGUERO MARTÍNEZ, L. A., El estatuto jurídico laboral del trabajador extranjero…, op. cit., p. 89.
9
URIARTE TORREALDAY, R., “El derecho al trabajo y los extranjeros irregulares…”, op. cit., p. 270.
171
Conference Paper
the validity of the norms from the point of view of fundamental rights, but they do
make up the interpretative canon that helps to interpret the rights and freedoms
included in the Constitution10.
From a subjective point of view, the right to work is enshrined in restrictive terms
since the right to work is included among those rights of legal configuration in
accordance with international treaties. The right to work of foreigners is a right that
must be exercised in compliance with the provisions set forth in the law and in the
treaties. The LOEx provides in its art. 10 that "foreigners who observe the requirements
set forth in this Organic Law and in the provisions that develop it shall have the right to
carry out a remunerated activity on their own or someone else's account [...]"11.
Lacking organic character, the current regulation of the right to work of immigrant
foreigners preserves, in substance, the regulation provided for by the original version
of Organic Law 4/2000 which, at the same time, reflects the model of Organic Law 7 /
198512. It is striking that the reproduced art. 10 does not refer to the right to work but to
the right to carry out a remunerated activity, whether self-employed or employed, a
formula indicative of a different treatment with respect to nationals. The differentiation
is based on the need to previously obtain a residence and work permit, the granting of
which is subject to the employment situation in the country13. The recognition of the
right to work and to Social Security is conditioned by obtaining a work authorization
depending, therefore, the exercise and guarantee of the same of its concession14. But,
beyond legal and constitutional regulation, work constitutes a central element for
citizenship in all its dimensions. The immigrant condition is dignified through social
citizenship that derives from the status of worker and the values, principles and rights
that reinforce the protection of work. When the foreigner is a worker, he is subject to
Labor Law and the rights related to work are recognized. The immigrant has a triple
status: the status derived from his condition as a human person, the one that originates
through his condition as a foreigner residing in the Spanish territory and by not
belonging to the person can be restricted to non-nationals and, finally, the status that
derives from his concrete condition of worker. Being a worker allows the foreigner to
10
BAYLOS GRAU, A., Inmigración y derechos sindicales, Bomarzo, Albacete, 2009, p. 47. The STC
107/1984 indicates regarding art. 13 CE that does not aspire to “deconstitutionalize the legal position
of foreigners regarding public rights and freedoms, since the Constitution does not establish that
foreigners in Spain will enjoy the freedoms attributed to them by treaties and the law, but rather the
freedoms that "This title guarantees in the terms established by the treaties and the Law", so that the
rights and freedoms recognized to foreigners continue to be constitutional and, therefore, endowed -
within their specific regulation - with constitutional protection »( FJ 3).
11
PRADOS DE REYES, F. J. y OLARTE ENCABO, S., “Constitución y políticas migratorias: ¿una
Constitución de emigrantes para inmigrantes?” in SEMPERE NAVARRO, A. (dir.), El modelo social en
la Constitución Española de 1978, Ministerio de Trabajo y Asuntos Sociales, Madrid, 2003, p. 1413.
12
MONEREO PÉREZ, J. L. y TRIGUERO MARTÍNEZ, L. A., “Derecho al trabajo y a la Seguridad
Social” in MONEREO PÉREZ, J. L., FERNÁNDEZ AVILÉS, J. A. y TRIGUERO MARTÍNEZ, L. A.,
Comentario a la Ley y al Reglamento de Extranjería, Inmigración e Integración Social (LO 4/2000 y
RD 557/2011), Comares, Granada, 2012, p. 201.
13
GARCÍA MURCIA, J., “Derechos laborales y de protección social en la Ley de Extranjería”, TS, nº
132, 2002, p. 26.
14
SOLANES CORRELLA, A., “Una aproximación a los derechos de los extranjeros en España” in
CABEZA PEREIRO, J. y MENDOZA NAVAS, N., Tratamiento jurídico de la inmigración, Albacete,
Bomarzo, 2008, p. 74.
172
obtain social, economic and civil rights that are extended as a result of continued
residence15.
2. Content of the right to work of immigrants
Article 35 CE does not exhaust the regulation of the constitutional right to work,
but basically outlines its individual dimension, while its collective perspective, as an
obligation of the public powers to promote full employment, is contemplated in art.
40.1 CE. This constitutional regulation of work is completed with two specific
provisions: the first refers to the right to work of the convicted persons contemplated in
art. 25.2 CE, while the second, orders the specific status of public officials in art. 103.3
CE. The content of art. 35 CE comprises different mandates of a substantive nature and
a mandate of a formal nature. The substantive mandates that are enshrined in the first
section are: duty to work, right to work, free choice of profession or trade, promotion
through work, sufficient remuneration and non-discrimination based on sex. Regarding
the formal mandate, this is portrayed in the second section and constitutes an
interpellation to the ordinary legislator to draw up a Workers' Statute16.
The constitutional treatment does not illustrate a valued list of rights, which has to
be built from art. 10.1 CE in relation to art. 10.2 CE regarding the rights linked to the
person17. However, an adequate interpretation of art. 35 CE requires a weighting of a
bundle of constitutional references and the list of international precepts that has already
been addressed in previous pages. It is necessary to consider the influence in this
matter of the social definition of the State in art. 1.1 and its delimitation in art. 9.2 CE,
and additionally, observe its connection with the dignity and free development of the
personality and with other rights of workers. Among those rights and freedoms that
require prior recognition of the right to work, would be the right of workers to organize
and strike, collective bargaining, professional training, safety and health at work and
work rest, protection against unemployment, participation in the company, Social
Security and other specific rights of immigrant workers18.
Regarding the constitutional regime of the right to work, some doubts can be
raised regarding its impracticality derived from the disagreement between its
regulations and its effectiveness, an aspect that leads to the doctrinal confirmation that
this recognition is nothing but a "magic formula" or a "voice empty "of normative
content"19. The main reason for this suspicion comes from an unquestionable fact: the
15
RODRÍGUEZ-PIÑERO y BRAVO-FERRER, M., “El derecho del trabajo y los inmigrantes
extracomunitarios” in AEDTSS, Derechos y libertades de los extranjeros en España, XII Congreso Nacional
de Derecho del Trabajo y de la Seguridad Social, Tomo I, Gobierno de Cantabria, 2003, pp. 27-28.
16
URIARTE TORREALDAY, R., “El derecho al trabajo y los extranjeros irregulares…”, op. cit., pp. 278-279.
17
RUIZ CASTILLO, M. M., “Marco legal de la inmigración en España. Aspectos laborales”, Revista de
Derecho Social, nº 22, 2003, p. 22.
18
URIARTE TORREALDAY, R., “El derecho al trabajo y los extranjeros irregulares…”, op. cit., pp. 278-279.
19
MONEREO PÉREZ, J. L. y MOLINA NAVARRETE, C., “El derecho al trabajo, la libertad de elección
de profesión u oficio: principios institucionales del mercado de trabajo” in MONEREO, J. L., MOLINA
NAVARRETE, C. y MORENO, M. N. (dirs.), Comentario a la Constitución Socioeconómica de
España, Comares, Granada, 2002, p. 291.
173
Conference Paper
existence of a fundamental principle of organization of society - and of the labor

market - which consists of free private initiative and freedom of business, since this
economic system prevents the possibility of ensuring the right to work for all citizens.
For this reason, it is pointed out that the right to work is a right lacking an effective
guarantee, except in what could be done through the employment policies supported by
the public powers. Therefore, the individual dimension of the ownership of the right
would be consumed by the collective dimension of the same, taking into account the
design of the employment policy that the public authority establishes in each
moment20. The constitutional expression of social rights has not been completed by the
corresponding elaboration of relevant social or positive guarantees, that is, defense and
justiciability techniques similar to those conferred by liberal or negative guarantees for
the protection of freedom rights21.
From a historical projection, the requirement of the right to work seems to be
connected to human dignity and, therefore, to a consideration of work as a means of
personal fulfillment: beyond physical subsistence, the demand for adequate work
converges in the achievement of that purpose. The constant link with other important
concepts can also be preached, especially with the duty or obligation to work, freedom
of work and the right to assistance22.
For some illustrious laborists, the right to work represents one of the rights
unknown by constitutional jurisprudence to the extent that it still has simply scattered
and peripheral boundaries. Consideration that can be extended with respect to the
generic statements of the constitutional doctrine on its regulatory function23. The
constitutional treatment of art. 35 SC, as well as the legal and political consideration of
the right to work, must be outlined from the idea of conferring political value to a
social condition of subordination and contemplate at the same time that this situation
must be made compatible with a model of equal citizenship24.
The legal regulation of the right to work of foreigners has always been collected
through the immigration regulations. Doubtful reflections about the ownership of
foreigners' labor rights have been perpetuated by the omission of a reference in LO
7/1985 and its interpretation in restrictive terms in line with art. 35 SC which refers
only to the Spanish. This discursive dynamic has been overcome through the regulatory
order of the LOEx, but by orienting the content of the right to work to a conditioner
represented by the administrative authorization to work25.
The consecration of freedoms and the application of the principle of non-
discrimination assume an increasingly prominent role in the configuration of the legal
regime of labor relations for foreigners hired in Spain for the provision of services. It
should be noted that while the Supreme Norm has been modulating the conformation
20
BAYLOS GRAU, A., “El derecho al trabajo como derecho constitucional…”, op. cit., p. 20.
21
FERRAJOLI, L., Derechos y garantías. La ley del más débil, Trotta, Madrid, 1999, pp. 63-64.
22
SASTRE IBARRECHE, R., El derecho al trabajo, Trotta, Madrid, 1996, p. 43.
23
CASAS BAAMONDE, M. E., “Evolución constitucional y Derecho del Trabajo” in PEDRAJAS
MORENO, A. (dir.), Puntos interdisciplinarios en las relaciones laborales, Lex Nova, Valladolid, 2000,
p. 103.
24
25
TRIGUERO MARTÍNEZ, L. A., El estatuto jurídico-laboral del trabajador extranjero…, op. cit., p. 89.
174
of the administrative control regime determined by successive immigration and

immigration laws, the infra-constitutional norms have progressively tempered the
principle of preference in access to employment. En este sentido, juega un rol
destacado la configuración del mercado de trabajo nacional a los efectos de conceder
autorizaciones de trabajo26.
This idea must be connected with the provisions of art. 17 ET that understands the
regulatory precepts, the clauses of the collective agreements, the individual agreements
and the unilateral decisions of the employer that contain some type of discrimination
for the workers are null. Discrimination against, those with an adverse content,
discrimination itself, will therefore be prohibited, but our legal system also prevents the
practice of favorable discriminatory behaviors, that is, privileges in employment27. The
current LOEx has tried to effectively project the principle of non-discrimination at
work, even extended to the phase of access to employment, attending to a joint
interpretation of art. 17 ET and art. 14 SC.
Taking into account the constitutional articulation of the right to work of
foreigners, this has been considered as a right of legal configuration, an aspect that has
already been recorded in previous lines. The political will thus becomes a central
element to confer on this right a greater or lesser extension in its ownership and
exercise by immigrant foreigners, the legal-constitutional limit of art. 13.1 CE. The
recognition of the right to work of immigrant foreigners depends on the delimitation
that the law makes of its contents in relation to its exercise. As we have been able to
verify, the LOEx contemplates the right to work, but prior to it, the provisions of its art.
36.1 to the extent that foreigners over sixteen years of age will need the corresponding
prior administrative authorization to reside and work in order to carry out any lucrative,
labor or professional activity. The same Constitutional Court, in the well-known STC
236/2007, contemplates "the authorization of their stay or residence as a presupposition
for the exercise of some constitutional rights -paradigmatically, the right to work-
which by their nature make it essential to comply with the requirements that the same
law establishes to enter and remain in spanish territory”.
From a contractual perspective of the right to work, for the interpreter of the
Constitution, the right enshrined in art. 35.1 CE not only constitutes a generic right to
join working life, which in the constitutional lexicon would be classified as “freedom
to work”, but also includes equal opportunities for a specific job, and once obtained, a
right to continuity and stability in that job. Constitutional jurisprudence provides a
didactic nuance to the explanation of the individual aspect of the right to work
recognized to workers individually considered. However, these expectations may be
limited by the “collective” dimension of the law represented by the public power,
which is the one who is compelled to carry out an employment policy that includes all
the factors that contribute to the conformation of the labor market, and that can adopt
measures that involve the sacrifice of the right to individual work for the collective
26
MONEREO PÉREZ, J. L. y TRIGUERO MATRÍNEZ, L. A., “Derecho al trabajo y a la Seguridad
Social”, op. cit., p. 202.
27
POLO SÁNCHEZ, M. C., Derechos fundamentales y libertades públicas de los trabajadores
extranjeros en España, Consejo Económico y Social, Madrid, 1994, p. 181 y ss.
175
Conference Paper
interests of other subjects and the promotion of their options to find a job, a collective
dimension that is enshrined in art. 40.1 CE28.
The art. 35 CE guarantees the freedom to work and implies, in addition, that the
work presents conditions that allow it to be identified as decent work, which is
connected with the mandate to promote full employment framed in art. 40 CE,
configures a content of the right to work more extensive than just freedom to work. A
perspective of international regulations makes it possible to determine certain
connotations of the right to work. The art. 23 of the Universal Declaration of Human
Rights has a statement that coincides with that of art. 35 CE, but adds aspects such as
free choice, non-discrimination, fair remuneration and includes the right to organize.
This precept reflects the link between the right to work and human dignity29.
The “individual” aspect of the right to work allows us to distinguish its complex
nature through several of its facets. The projection of equal opportunities in access to a
job certifying professional training for it shows an important binomial representing the
right to work together with the principle of equal treatment and non-discrimination, a
manifestation contained in art. 4.2.c) ET. On the other hand, as regards the
aforementioned professional training, the intimate relationship between the right to
work and the right to training and professional promotion expresses the insufficiency
with which the legal system has combined work and knowledge30.
The right to work requires Spanish citizenship for its full exercise, that is,
belonging to the state community, or through the equalization of situations produced
through the principle that prohibits unequal treatment based on nationality and respect
for freedom of circulation to European Community citizens. As we have been reporting
along these lines, the LOEx conditions the right to work of foreigners in Spain to the
regularization of their situation, which will mean the granting of a work permit, which
acts as a requirement of ability to hire (art. 7 ET), given that as soon as one starts from
the occupation of a job, the principle of equal treatment with Spaniards31.
The art. 7 ET orders the capacity to contract of the foreign person with reference
to its specific legislation. It should not be overlooked that the lack of residence and
work authorization, without prejudice to the responsibilities of the employer to which it
gives rise, including those of Social Security, will not invalidate the employment
contract with respect to the rights of the foreign worker, nor will it be an impediment to
obtain the benefits derived from the assumptions included in the international
agreements for the protection of workers or others that may correspond, provided they
are compatible with their situation. The worker who lacks residence and work
authorization will not be able to obtain unemployment benefits (art. 36.5 LOEx)32.
The problem of the validity and effects of the employment contract entered into by
citizens of third states has been the subject of analysis on numerous occasions by the
28
29
URIARTE TORREALDAY, R., “El derecho al trabajo y los extranjeros irregulares…”, op. cit., p. 282.
30
ROMAGNOLI, U., «Del derecho “del” trabajo al derecho “para” el trabajo», Revista de Derecho
Social, nº 2, 1998, p. 15.
31
BAYLOS GRAU, A., “El derecho al trabajo como derecho constitucional…”, op. cit., pp. 31-32.
32
PRECIADO DOMÈNECH, C. H., Teoría general de los derechos fundamentales en el contrato de
trabajo, Aranzadi, Navarra, 2018, pp. 201-202.
176
case law of the Supreme Court. Its doctrine is projected in the STS of November 16,
2016 (Rec. 1341/2016) that summarizes its three phases. In a first phase, the nullity of
the work contract of the foreigner in an irregular situation constituted the general rule.
Notwithstanding the foregoing, the doctrine of the Supreme Court admitted that the
irregular foreign worker could request the remuneration corresponding to a valid
contract (art. 9.2 ET) for the work already carried out. In a next phase, the validity of
the work contract of the foreigner in an irregular situation is advocated after the entry
into force of LO 4/2000, whose approval determined the Supreme Court to consider the
special relevance of art. 36.5 LOEx. The STS of June 9, 2003, in relation to a dispute
over determination of liability for work-related accidents, points out that “The
unauthorized foreigner's employment contract is not, in the current legislation, a void
contract, and, being this the case, the worker cannot be deprived of a protection that, in
our system of labor relations, is inherent to the employment contract”33. A third stage is
marked by the question regarding the loss of validity of the authorization to work due
to lack of renewal. In this sense, the loss of the permit would motivate the termination
of the contract of the foreign person, however, the foreigner without the authorization
cannot be deprived of the protection inherent to that contract despite his irregular
situation in Spain, precisely because of the validity and effectiveness of your contract
with respect to the worker's rights contemplated by law34.
The set of ideas embodied in this article leads to the verification that in the
constitutional contemplation of the right to work there is a contradiction between the
universalist social right to work and the right to concrete work that generates results on
the national economy plane, for which administrative filters are used to overcome with
the intention of ordering migratory flows35.
Conclusions
Migration policies have a dominant influence on migratory flows, but the

important impact on immigration of phenomena such as digitalization and
globalization is becoming more and more widespread. The events of recent years show
how the countries of southern Europe represent for people living in the neighboring
countries of the European Union the hope of a better life or the hope of achieving
respect for human rights, pluralism, the rule of law and, above all, social justice.
Globalization and its frantic pace are able of generating wealth and resources that
transform societies, but the globalized world forgets millions of people threatened by
war, poverty, exclusion and disease. The need to emigrate from their countries
inevitably throws them into societies where they receive, once again, a degrading
treatment. We must insist on the need to adopt migration policies that respect human
rights and demand the "right to have rights".
33
STS de 9 de junio de 2009 (Rec. 4217/2002).
34
PRECIADO DOMENECH, C. H., Teoría general de los derechos fundamentales…, op. cit., p. 202.
35
TARABINI-CASTELLANI AZNAR, M., “Los derechos de los trabajadores extranjeros: puntos críticos”,
Revista del Ministerio de Trabajo, nº 63, 2006, p. 197 y ss.
177
Conference Paper
Bibliography:
1. Aros Ramírez, F., “La naturaleza del derecho al trabajo como derecho social
fundamental”, Cuadernos electrónicos de Filosofía del Derecho, nº 3, 2000,
https://www.uv.es/cefd/3/arcos.htm.
2. Baylos Grau, A., Inmigración y derechos sindicales, Bomarzo, Albacete, 2009.
3. Baylos Grau, A., “El derecho al trabajo como derecho constitucional” en Salinas Molina,
F. y Moliner Tamborero, G. (dirs.), La protección de derechos fundamentales en el orden
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TS, nº 132, 2002.
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Comentario a la Ley y al Reglamento de Extranjería, Inmigración e Integración Social
(LO 4/2000 y RD 557/2011), Comares, Granada, 2012.
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Constitución de emigrantes para inmigrantes?” in Sempere Navarro, A. (dir.), El modelo
social en la Constitución Española de 1978, Ministerio de Trabajo y Asuntos Sociales,
Madrid, 2003.
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de trabajo, Aranzadi, Navarra, 2018.
12. Romagnoli, U., «Del derecho “del” trabajo al derecho “para” el trabajo», Revista de
Derecho Social, nº 2, 1998.
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extracomunitarios” in AEDTSS, Derechos y libertades de los extranjeros en España,
XII Congreso Nacional de Derecho del Trabajo y de la Seguridad Social, Tomo I,
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libertades de los extranjeros en España, XII Congreso Nacional de Derecho del Trabajo
y de la Seguridad Social, Tomo I, Gobierno de Cantabria, 2003.
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críticos”, Revista del Ministerio de Trabajo, nº 63, 2006.
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Derecho Político, nº 78, 2020.
179
Conference Paper
INFRINGEMENT OF THE RIGHT TO CONSULTATION

BY THE OMISSION OF GRANTING/NON GRANTING
THIS RIGHT BY ORDINANCE
Denisa BARBU*
Abstract: The paper addresses both the theoretical and especially the practical aspects,
necessary for a good administration of justice. In this paper we have placed particular emphasis
on certain principles considered both relevant doctrine and practice in criminal proceedings.
Regarding the novelty and topicality of these principles, we tried to analyze both the national
dimension of the new principles regulated by the current Code of Criminal Procedure and
elements related to the Romanian criminal procedure tradition and the ECHR jurisprudence on
the protection of fundamental rights. We consider that by analyzing the principles, we revealed
both the vertical reporting of the criminal process to the institutional structures involved in the
process and its phases, as well as its horizontal reporting to the procedural rights and
obligations of the participants in the process. Regarding the definition of "public interest" in
achieving the object of criminal prosecution, we note that there are no clear and precise
criteria, being listed in art. 318 para. (1) C. proc. pen. some (the offenses for which the law
provides for the penalty of a fine or imprisonment for a maximum of 7 years), as well as others
listed in art. 181 of the Penal Code of 1968 , which leads to the conclusion that the waiver of
criminal prosecution is possible only in cases of manifestly unimportant facts, but the objective
criterion regarding the maximum sentence of 7 years may determine the application of the
waiver of criminal prosecution high number of crimes, some quite serious (culpable homicide,
blackmail, threat, simple pimping, etc.).
Keywords: right to defense, consultation of the file, restriction of the right to consult,
complaint.
Article 8 C. proc. pen. enshrines the fair character and the reasonable term of the
criminal process, as basic rules of the application of the criminal procedural law1.
1. Fairness of the criminal process
Equity represents the full equality of all participants in the criminal process, thus
achieving a balance between defending the general interest of society and the
legitimate interest of innocent people not to be subjected to criminal coercion. This
definition includes three essential elements: the need to resolve it within a reasonable
* Lecturer PhD, Valahia University of Targoviste, denisa.barbu77@yahoo.com.

1
C. Bîrsan, Convenţia europeană a drepturilor omului, All Beck Publishing House, Bucharest, 2005, p.
25; R. Chiriţă, Convenţia Europeană a Drepturilor Omului,Comentariu şi explicaţii, ed. a 2-a, C.H.
Beck Publishing House, Bucharest, 2008, p. 54; M. Damaschin, Dreptul la un proces echitabil în
materie penală, Universul juridic Publishing House, Bucharest, 2009, p. 89.
180
time, with accurate and fair repression and respect for the rights and freedoms of
individuals2.
According to art. 8 C. proc. pen., the judicial bodies have the obligation to carry
out the criminal investigation and trial in compliance with the procedural guarantees
and the rights of the parties and other procedural subjects, so that the facts
constituting crimes are ascertained in time and completely, and any guilty person is
prosecuted within a reasonable time.
Thus, the criminal proceedings are fair if:
1. the judicial bodies carry out the criminal investigation and the trial with the
observance of the procedural guarantees and of the rights of the parties and of the
procedural subjects3;
2. the facts constituting crimes are ascertained in a timely and complete manner;
3. no innocent person is held criminally liable;
4. any person who has committed a crime is punishable by law;
5. the criminal proceedings shall take place within a reasonable time.
The principle of fairness is also based on the rule of equality of arms between
defense and prosecution, corroborated with the impartiality of the prosecutor4.
Starting from the fundamental principles of the criminal process, it is obvi ous
that the equality of procedural weapons also dominates the criminal process, the
holders of the right to a fair trial (both the persons accused of committing a crime
and the victims of the crime) must be on the same procedural positions, without the
representatives of the prosecution having more extensive procedural possibilities
than the accused person.
The principle of fairness is also based on the rule of equality of arms between
defense and prosecution corroborated with the impartiality of the prosecutor. However,
by the nature of things, the prosecutor and the defendant cannot be on an equal footing,
which does not automatically lead to a violation of the equality of procedural weapons.
In fact, in order to be able to discuss an inequality in terms of procedural weapons,
we consider that three conditions should be met: the prosecutor should have an
additional right to the accused, that right should not derive from the nature of the
prosecutor's office, that right to create a concrete advantage for the prosecutor during
the procedure.
Equality of arms is also enshrined in the Romanian Constitution, in art. 16 para.
(1) and (2): “(1) Citizens are equal before the law and public authorities, without
privileges and without discrimination; (2) No one is above the law”, but also in art.
21 of the Constitution, the provisions of this article recognizing the fundamental right
of persons, regardless of nationality, race, sex or religion to exercise, in conditions of
full equality all the rights of the Constitution and other laws, to participate equally in
political, economic, legal, social and cultural life.
2
N. Volonciu, ş.a., , Noul cod de procedură penală, comentat, Hamangiu Publishing House, Bucharest,
2019, p. 24.
3
I. Neagu, M. Damaschin, Tratat de procedură penală. Partea generală. În lumina noului Cod de
procedură penală, Universul Juridic Publishing House, Bucharest, 2019, p. 86.
4
Idem, p. 87.
181
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The fairness of the criminal process given by our doctrine5 is primarily

represented by the purpose of the criminal process (finding in time and completely the
facts that constitute crimes, so that any person who has committed a crime is punished
according to his guilt and no person innocent not to be held criminally liable). Equity is
based on the full equality of all participants in criminal proceedings, and in this sense,
it cannot be separated from the purpose of criminal proceedings, according to which all
persons who have committed crimes must be punished and no innocent must be
punished.
2. The existence of a balance between accusation and defense
For the reasons set out above, it is desired to meet the requirement of a balance
between defending the general interest of society6, by punishing all criminals, and the
legitimate interest of innocent people not to be subject to the coercive nature of the
state. In order to be able to discuss such a balance, it is necessary, first of all, to have
competent, independent, impartial judicial bodies that correctly apply the sanctions of
those who are guilty of committing crimes, by making maximum use of the rules
imposed by the principle finding out the truth, and secondly, these bodies to ensure that
they do not investigate and hold innocent people accountable.
As such, equality of arms presupposes legality, truth, initiative in the fight against
crimes, continuous concern for the just sanctioning of criminals in the shortest possible
time, but also permanent concerns not to infringe the fundamental rights and freedoms
provided by the Constitution, by establishing express guarantees to prevent any abuse
and to remove any violations of the law by the judiciary in terms of the presumption of
innocence, the right to defense, individual freedom, human dignity, privacy.
The equality of arms (even of the parties) resides in the essential feature of the
right to a fair trial, because it is assumed that the parties, the procedural subjects are on
an equal footing, there is no disadvantage / advantage over the other party, and equality
is implied in respect for the right to defense or the need for contradictory debates,
guarantees in which it integrates the most and whose effectiveness must be protected.7
Understood in these terms, the principle discussed allows the assessment of how the
court understands to maintain the balance necessary for a fair trial, especially regarding
the communication between the parties of all parts of the case that will serve in making
its decision. Also, the right to an adversarial procedure essentially implies the
possibility for the parties to a trial to take note of all the documents and observations
submitted to the judge and to discuss them8.
5
G. Antoniu, N. Volonciu, N. Zaharia, Dicţionar de procedură penală, Ştiinţifică şi Enciclopedică
Publishing House, Bucharest, 1988, p. 97, apud Gr. Gr. Theodoru, Tratat de Drept procesual penal,
Hamangiu Publishing House, Bucharest, 2019, p. 63.
6
N. Volonciu, A.S. Uzlău ş.a., Noul Cod de procedură penală comentat, Hamangiu Publishing House,
Bucharest, 2019, p. 23.
7
ECHR, Ankerl v. Sweden, 18 February 1997; ECHR, Niderost-Huler v. Sweden, 24 November 1997.
8
ECHR, Morel v. France, 6 June 2000.
182
3. Fair trial
According to art. 6 of the Convention, “Everyone has the right to a fair and public
hearing within a reasonable time by an independent and impartial tribunal established
by law, which shall decide (…) either on the merits any criminal charge against him
(...). Any person accused of a crime is presumed innocent until proven guilty”.
According to art. 6 parag. 3 lit. d) of the Convention9, ”any accused person has the
right, in particular, to hear or request the hearing of prosecution witnesses and to obtain
the summoning and hearing of defense witnesses under the same conditions as
prosecution witnesses”. This result in three essential elements: the right of the accused
to ask questions to the prosecution witnesses; the right to obtain the summoning and
questioning of defense witnesses; equal treatment, procedural balance between
prosecution and defense10.
With regard to the lack of equality of arms and the right to adequate means for the
preparation of the defense, in the case Natunen v. Finland11, the ECHR declared the
applicant's complaint admissible, arguing that there had been a violation of Art. 6
parag. 1 combined with art. 6 parag. 3 lit. b) of the Convention. Therefore, the fair trial
is nothing more than the broader concept of equality of arms, and the court will
interpret it as such12.
This principle is found both in the legislation of the states with Anglo-Saxon legal
system, and in those with Roman-Germanic legal system13. It should be emphasized
that equality of arms is closely linked to the notion of the right to a fair trial14,
enshrined in the provisions of art. 6 parag. 1 of the Convention. The ECHR also
emphasizes that equality of arms is only one component of the notion of "right to a fair
trial"15, in the provisions of art. 6 of the Convention as there is no definition of a fair
trial, and in para. 3 being regulated some rights that can be qualified as fundamental
elements of the fair process, and at the same time that can complete the area of rights
provided in art. 6 parag. 1 of the Convention16.
An important aspect of the right to a fair trial in criminal proceedings is the
contradictory element, and there must be equality of arms between the prosecution and
9
The convention constitutes an internal source, according to art. 11 para. (2) of the Constitution, having
a supra-legislative nature compared to the internal laws with which it is inconsistent.
10
Hunor Kadar, Principiul egalităţii armelor şi al contradictorialităţii, în lumina jurisprudenţei CEDO.
Efectele acestor principii asupra interogării martorilor, published on studia.law.ubbcluj.ro.
11
ECHR, Natunen v. Finland, March 31, 2009.
12
R. Chiriţă, Convenţia Europeană a Drepturilor Omului,Comentariu şi explicaţii, ed. a 2-a, C.H. Beck
13
F.G. Jacobs, R.C. White, The European Convention on Human Rights, 2nd ed., Ed. Clarendon Press,
Oxford, 1996, p. 158; S.J. Summers, Fair trials. The European Criminal Procedural Tradition and the
European Court of Human Rights, Universitӓt Zurich, 2006, p. 104.
14
S.J. Summers, op. cit., p. 109.
15
ECHR, Delcourt v. Belgium, 17 January 1970.
16
ECHR, Nielsen v. Denmark, 28 November 1988; ECHR, Ofner and Hopfinger v. Austria, 23
November 1962 (the first criminal cases in which equality of arms was used by the Commission);
ECHR, Jespers v. Belgium, 14 December 1961, în Digest of Srasbourg Case-law relating to the
European Convention on Human Rights, vol. II (art.6), Ed. Carl Heymanns Verlag KG, Koln, Bonn,
Munchen, 1984, p. 272-273.
183
Conference Paper
the defense. The right to a contradictory trial in a criminal trial also includes the
criminal investigation in which the possibility to have knowledge and observations
regarding the evidence presented by the other party must be granted. In addition, art. 6
parag. 1 provides that the courts must present to the defense all material evidence in
their possession, both for and against the accused (see, mutatis mutandis, Rowe and
Davis v. The United Kingdom17, para. 60; Natunen v. Finland, para. 39).
Equality in rights emerged after the French Revolution of 1789, when class
privileges were formally abolished, the source of the concept of "equality before the
law" being found in the French Declaration of the Rights of Man and of the Citizen
(August 26, 1789) 18.
The Court correctly assessed the observance of the principle of equality of arms,
because in the case of national norms there may be a number of difficulties: for
example, in the case of expertises, but also in the conduct of proceedings before
judicial or administrative jurisdictions19. Equality between prosecution and defense is a
guarantee requirement for the balance between the interests of the individual and
society, for the harmonization and safeguarding of these interests20.
4. Equality - norm of conduct
In the jurisprudence of the ECHR, equality of arms is seen as the "backbone" of

the right to a fair trial, because the lack of such a principle would lead to an incorrect
sentence, harming one party, as a result of inequality between weapons, trust in the act
of justice being shaken21. It has been pointed out in the literature that the principle of
equality of arms does not guarantee a mathematical equality between participants22, not
being an absolute right, the national judge having a wide margin of appreciation
regarding the opportunity to summon a defense witness provided that prosecution
witnesses are summoned compliance with the same conditions. 23
It should be emphasized that regardless of the procedural system that is applicable
in a particular state, the defendant's right to question the prosecution's witnesses is
emphasized as a fundamental element of the principle of equality of arms. It is known
17
ECHR, Rowe and Davis v. The United Kingdom, 16 February 2000.
18
V. Pătulea, Sinteză teoretică şi practică judiciară a CEDO în legătură cu art. 6 din Convenţia
Europeană a Drepturilor Omului, in ”Dreptul” no. 10/2007, p. 243.
19
J.-Fr. Renucci, Tratat de drept European al drepturilor omului, Hamangiu Publishing House,
20
O. Predescu, M. Udroiu, Convenţia europeană a drepturilor omului şi dreptul procesual penal român,
C.H. Beck Publishing House, Bucharest, 2007, p. 363.
21
O. Predescu, M. Udroiu, Protecţia europeană a drepturilor omului şi dreptul procesual penal român,
C.H. Beck Publishing House, Bucharest, 2008, p. 663.
22
D. Bogdan, M. Selegean, Drepturi şi libertăţi fundamentale în jurisprudenţa CEDO, C.H. Beck
Publishing House, Bucharest, 2007, p. 220-221.
23
D. Bogdan, M. Selegean, Drepturi şi libertăţi fundamentale în jurisprudenţa CEDO, C.H. Beck
Publishing House, Bucharest, 2007, pp. 220-221., Engel et al. c. The Netherlands, 23 November
1976, în Digest of Strasbourg Case-law relating to the European Convention on Human Rights, vol. II,
Ed. Carl Heymanns Verlag KG, Koln, Bonn, Munchen, p. 384.
184
that the Public Ministry has a special role in protecting public order, but this does not
create a privileged position vis-à-vis other participants in the criminal process.
The prosecutor, like the defendant, can make requests, raise exceptions and draw
conclusions.
However, it is clear that there can be no complete procedural equality between
them, since the prosecutor acts as a public authority and thus has certain logistical
means that are not available to the defendant.
In order for there to be a violation of equality of arms, three cumulative conditions
must be violated: the prosecutor must have an additional right to the accused, this right
must not derive from the nature of the function and create a concrete advantage for the
prosecutor during the procedure24.
By virtue of the right to defense, no one can be judged without being defended25.
However, the right to defense should not be understood and confused with the
right to legal assistance from the lawyer, as it is a complex right, which includes all the
prerogatives granted to persons involved in the process to defend their rights26.
The role of the lawyer in criminal proceedings is an essential element of the right
to defense, because in doctrine it appears as an absolute fundamental principle. Legal
aid is, as we specified above, only a component of the right of defense which is a
complex right, but this aspect does not diminish the importance of the lawyer in the
criminal process. Indeed, legal aid cannot have the same concretization in the criminal
investigation phase as in the trial phase, even if the number of procedural documents in
which the presence of a lawyer is prohibited has been restricted or the limitation of
knowledge / study of the case in the criminal investigation phase has been expressly
provided in the provisions of art. 92-94 C. proc. pen. Also, the right to a lawyer is not
absolute, because there are limitations, for example, the legal assistance of a lawyer ex
officio is restricted only in situations expressly provided by law and only if the
defendant "has no means to remunerate a lawyer."
The role of the lawyer refers in particular to the facilities necessary for the
preparation of the defense by establishing conditions that lead to the free
communication of the detained or arrested persons with the lawyer appointed ex officio
or with the one chosen for the preparation of the defense. The new regulation, through
the provisions of art. 29 C. proc. pen. expressly enshrined the quality of lawyer in the
criminal trial. Article 24 paragraph 2 of the Constitution guarantees the right to defense
by clearly stating that the main parties and procedural subjects have the right to the
assistance of a lawyer, thus understanding a person who has the quality of lawyer
acquired under the law. Of course, there are also cases expressly provided with
reference to the incompatibility of the lawyer or the contradiction of interests, provided
by art. 88 para. (2) C. proc. pen. The right to defense essentially changes the perception
of the role of the lawyer in the conduct of the criminal trial.
24
R. Chiriţă, op. cit., Universul Juridic Publishing House, Bucharest, 2008, p. 349.
25
M. Franchimont, A. Jacobs, A. Masset, Manual de procédure pénale, Ed. Collection Scientifique de la
Faculté de droit, Liege, 1989, p. 803
26
V. Dongoroz, S. Kahane, G. Antoniu, C. Bulai, N. Iliescu, R. Stănoiu, Explicaţii teoretice ale Codului
de procedură penală român. Partea generală, vol.V, ed. A 2-a, All Beck Publishing House, Bucharest,
2003, p. 349.
185
Conference Paper
Lawyers in Romania are in large numbers, relative to the population, to allow

citizens to use their services by ensuring adequate representation before judges.
Moreover, it was concluded that the exercise of the profession of lawyer satisfies the
directives of the Committee of Ministers of the Council of Europe, Recommendation
no. R (2000) 21 of the Council of Europe on the obligation to inform the client, the
definition of fees and the existence of procedures for contesting fees, as well as the
existence of procedures and disciplinary sanctions independent of the judicial system27.
The right to defense essentially changes the perception of the role of the lawyer in
the conduct of criminal proceedings in the provisions of the Code of Criminal
Procedure. Without making an exhaustive enumeration of the benefits of the current
criminal procedural legislation, we emphasize that raising to the rank of principle the
right to consult the case file at any procedural stage, the right to confidentiality of
communications between lawyer and client, the right as at any hearing the client, he
should benefit from the support of the lawyer, represent rules of the criminal process
that place the lawyer in the position of participant with full rights to the judicial
activity28.
The lawyer's responsibility towards his client is also given by the importance of
the lawyer's role in the criminal process, but the improvement of the regulations
regarding the right to defense does not automatically lead to effective benefits, because
it is necessary to change the position of other participants towards the lawyer.
Consultation of the file is one of the essential components of the right to defense.
According to art. 78 reported to art. 83 C. proc. pen. (regarding the suspect), art.
81 (injured person), art. 83 (the defendant), art. 85 reported to art. 81 (civil part), art. 87
reported to art. 81 C. proc. pen. (civilly responsible party) have the right to consult the
file in accordance with the law29.
The request for consulting the file, cf. art. 94, para. 3 C. proc. pen., will be solved
by the prosecutor who performs or actively supervises the criminal investigation of the
criminal investigation bodies.
The disposition activity on the request for consultation of the file can be delegated
by the prosecutor to the investigative body of the judicial police.
In case of restriction of the consultation of the file, only the prosecutor orders by
motivated ordinance, example: - after the initiation of the criminal action, the
restriction can be ordered for maximum 10 days.
Nor can the right to consult the file be restricted, if proceedings are conducted
before the judge of rights and freedoms regarding deprivation or restrictive measures of
rights, in which the lawyer participates.
Against the ordinance of rejection of the request for consultation of the file, a
complaint can be made to the hierarchically superior prosecutor, under the conditions
of art. 336-339 and of art. 95 C. proc. pen., being obliged to resolve the complaint and
communicate the motivated solution within 48 hours.
27
www.inppa.ro/docs/RO_Studiu pentru Consiliul Europei.
28
Bogdan Micu, Aspecte privind drepturile şi rolul avocatului în procesul penal din perspectiva
dispoziţiilor noului Cod de Procedură Penală, published on 23.06 2014 on www.unbr.ro.
29
I. Neagu, M. Damaschin, op.cit., p. 245.
186
5. Lawyers' rights exercisable in criminal proceedings
As provided by art. 10 paragraph 2 of the Criminal Procedure Code, the lawyer

has the right to benefit from the time and facilities necessary for the preparation of the
defense30, the judicial bodies having the obligation to ensure the effective exercise of
the right to defense by the parties and the main procedural subjects31. Thus, the content
of the legal assistance and of the representation provided by the provisions of art. 88
para. 1 and 89 para. (2) C. proc. pen.
As established by the European Court, the communication between the lawyer and
his client can be done in the detention units in such a way as to ensure confidential and
free discussion, thus aiming at respecting both confidentiality and security and safety
requirements32.
During the criminal investigation, the lawyer of the suspect or defendant33 has the
right to assist in the performance of any act of criminal investigation, except:
a) the situation in which the special methods of supervision or research are used,
provided in ch. IV of Title IV;
b) body search or vehicles in case of flagrant crimes34.
Also, the lawyer of the suspect or defendant has the right to request to be informed
of the date and time of the criminal investigation or of the hearing conducted by the
judge of rights and freedoms, the notification being made by telephone, fax, e-mail or
by other such means, concluding a report35.
It should be noted that the absence of a lawyer does not prevent the performance
of the criminal investigation or hearing, if there is evidence that he was notified under
the conditions provided by law36. Regarding the home search, art. 92 para. (4) and (5)
C. proc. pen. emphasizes that the lawyer can also be notified after the presentation of
the criminal investigation body at the home of the person to be searched, which gives
rise to certain suspicions regarding the use of equal weapons in criminal proceedings.
The role of the suspect's or defendant's lawyer is also emphasized by the fact that
he has the right to participate in the hearing of any person by the judge of rights and
freedoms, to formulate complaints, requests and memoranda, to request consultation of
30
See also art. 92 para. 8 and art. 93 para. 2 Code of Criminal Procedure.
31
Art. 10 paragraph 2 final thesis of the Code of Criminal Procedure.
32
C. Bîrsan, Convenţia europeană a drepturilor omului. Comentariu pe articole, ed a 2-a, C.H: Beck
Publishing House, Bucharest, 2010, p. 651; N. Volonciu, Andreea Simona Uzlău şi alţii, Noul Cod de
procedură penală comentat, Hamangiu Publishing House, Bucharest, 2014, p. 216; see art. 102
para.2 Code of Criminal Procedure
33
D. Hîncu (Barbu), Aspecte de drept comparat privind drepturile şi obligaţiile inculpatului, Anuar,Tomul
XIII, Evoluţia şi perspectiva dreptului românesc în context european, Universitatea „ Petre Andrei” din
Iaşi, Casa de Editură Venus, Iaşi, 2007, p.227.
34
Article 92 para. 1 of the Code of Criminal Procedure.
35
Art. 92 para. 2 of the Code of Criminal Procedure; Gh. Dumitru, D. Hîncu (Barbu), „Probele.
Aprecierea probelor. Noile reglementări procedurale în legătură cu administrarea şi aprecierea
probelor. Relevări jurisprudenţiale”, Analele Facultăţii de Ştiinţe Juridice, Anul III, nr. 1(5), ianuarie
2006, Biblioteca Publishing House, 2006, p.163-164.
36
Article 92 para. 3 of the Code of Criminal Procedure.
187
Conference Paper
the file by studying his documents, noting data, as well as by obtaining photocopies at
the client's expense37.
According to the provisions of art. 109 para. (2), the suspect / defendant has the
right to consult with the lawyer both before and during the hearing, and the judicial
body, when it deems it necessary, may allow him to use his own notes and notes.
If the suspect's or defendant's lawyer is present at the performance of a criminal
investigation act, mention is made of this and of any objections, the act being signed by
the lawyer38, having the right to file a complaint according to the provisions of art. 336-
339 C. proc. pen.
During the criminal investigation, the lawyer of the injured person, of the civil
party or of the civilly responsible party may request (as well as the lawyer of the
suspect or defendant) to be informed of the date and time of the criminal investigation
or hearing of the judge of rights and freedoms. legal status of the injured person, of the
civil party and of the civilly responsible party, being carried out according to art. 93
reported to art. 89 para. (1) C. proc. pen. In the case of preventive measures, the role of
the lawyer is very well defined39, regardless of the phase of the criminal process, legal
assistance being mandatory.
Conclusions
We consider that it is preferable to reach a balance between the principle of

legality and that of finding the truth, otherwise it is to encourage the violation of the
law to obtain evidence by the judiciary or to harm the social values protected by the
impossibility of finding the truth.
The arguments put forward in this paper lead to the conclusion that the principles
of our Code of Criminal Procedure should not be too different from those of the laws
of other European Union countries, and that the solutions in judicial practice based on
the principles of criminal proceedings should be made similar.
Bibliography:
1. Gr. Gr. Theodoru, Tratat de Drept procesual penal, Hamangiu Publishing House,
Bucharest, 2007
2. C. Bîrsan, Convenţia europeană a drepturilor omului, All Beck Publishing House,
Bucharest, 2005
3. C. Bîrsan, Convenţia europeană a drepturilor omului.Comentariu pe articole, ed a 2-a,
C.H: Beck Publishing House, Bucharest , 2010,
4. D. Bogdan, M. Selegean, Drepturi şi libertăţi fundamentale în jurisprudenţa CEDO,
C.H. Beck Publishing House, Bucharest, 2007
37
See art. 94 of the Code of Criminal Procedure.
38
Art. 92 para. 6 of the Code of Criminal Procedure and art. 95 para. 1 of the Code of Criminal
Procedure.
39
Art. 204 para. 8 of the Code of Criminal Procedure, art.209 para. 9 of the Code of Criminal Procedure,
art. 205 para.8 of the Code of Criminal Procedure, s.a.
188
5. R. Chiriţă, Convenţia Europeană a Drepturilor Omului,Comentariu şi explicaţii, ed. a 2-

a, C.H. Beck Publishing House, Bucharest, 2008
6. M. Damaschin, Dreptul la un proces echitabil în materie penală, Universul juridic
Publishing House, Bucharest, 2009
7. V. Dongoroz, S. Kahane, G. Antoniu, C. Bulai, N. Iliescu, R. Stănoiu, Explicaţii
teoretice ale Codului de procedură penală român. Partea generală, vol.V, ed. A 2-a, All
Beck Publishing House, Bucharest, 2003
8. M. Franchimont, A. Jacobs, A. Masset, Manual de procédure pénale, Editura Collection
Scientifique de la Faculté de droit, Liege, 1989
9. F.G. Jacobs, R.C. White, The European Convention on Human Rights, 2nd ed., Ed.
Clarendon Press, Oxford, 1996,
10. S.J. Summers, Fair trials. The European Criminal Procedural Tradition and the
European Court of Human Rights, Universitӓ t Zurich, 2006
11. Hunor Kadar, Principiul egalităţii armelor şi al contradictorialităţii, în lumina
jurisprudenţei CEDO. Efectele acestor principii asupra interogării martorilor,
publicat pe studia.law.ubbcluj.ro
12. I. Neagu, M. Damaschin, Tratat de procedură penală. Partea generală. În lumina
noului Cod de procedură penală, Universul Juridic Publishing House, Bucharest, 2019
13. V. Pătulea, Sinteză teoretică şi practică judiciară a CEDO în legătură cu art. 6 din
Convenţia Europeană a Drepturilor Omului, în ”Dreptul” nr. 10/2007
14. O. Predescu, M. Udroiu, Convenţia europeană a drepturilor omului şi dreptul
procesual penal român, C.H. Beck Publishing House, Bucharest, 2007
15. J.-Fr. Renucci, Tratat de drept European al drepturilor omului, Hamangiu Publishing
House, Bucharest, 2009
16. N. Volonciu, ş.a., , Noul cod de procedură penală, comentat, Hamangiu Publishing
House, Bucharest, 2019
17. N. Volonciu, A.S. Uzlău ş.a., Noul Cod de procedură penală comentat, Hamangiu
Publishing House, Bucharest, 2019
189
Conference Paper
THE ROLE OF PUBLIC INTERNATIONAL LAW

IN CONTEMPORARY SOCIETY
Ioana-Andra PLEŞA*
Abstract: For the proper functioning of legal relations within the international community
there is a set of rules that give meaning to the notion of international legal order. The object of
public international law consist in the legal relations that are established between states (as
bearers of sovereignty-expression of state power), as well as between states as main subjects of
Public international law and other subjects of international law (international organizations)
and the establishment of their rights and obligations in relations between them. As stated
unanimously in doctrine, the role of public international law is materialized in the regulation of
relations within the international society, ensuring the harmonious functioning of this society,
the contribution to the development of the international society and last but not least the
prevention and resolution of conflicts. We consider that public international law has an
extremely important role in contemporary society, regulating the relations that appear between
the subjects of Public international law, which leads to the continuous development of
international society, from a social, economic and legal point of view.
Keywords: the role of public international law, international society, relations between
states, conflicts on the international stage.
Introduction
As we know, with the constitution, formation of the state, law also appeared. At
the beginning, there were primary forms of population organization (gens, tribes), after
the territorial expansion they united under the leadership of a representative figure, of a
leader and thus the state appeared.
With the formation of the state came the law because it was necessary to establish
rules that would lead to the proper functioning of the state.
Of course, each state had and has its own rules of gouvernance. The main
characteristic of the state are the two defining elements of sovereignty and self-
determination.
1. Fundamental aspects of public international law
In the historical evolution of the society, between states were established different
relations that had to be regulated, and thus appeared and developed what we call today
as Public international law.
,,The name of international law was first used by the English philosopher and
jurist Jeremy Bentham in 1979 in An Introduction to the Principles of Moral and
* PhD Lecturer, ,,1 Decembrie 1918” University from Alba Iulia, ioana.plesa@uab.
190
Legislation, which states that the expression of international law is more correct than
the expression "the law of the nations" or "the law of the nations" because it
emphasizes its "right between nations" character."1
Public international law is composed by a set of legal rules that govern the
relationship that is established between the subjects of international law, namely states
and international organizations.
In doctrine, public international law is defined as: "the totality of legal norms,
created by states on the basis of the agreement of will, expressed in specific legal forms
(treaties, custom/ common law), to regulate their relations peace, security and
international cooperation, norms the application of which is carried out by observance
voluntarily and, if necessary, by the individual or collective sanction of the Member
States.”2
Public international law is also defined as that branch of law, that system of legal
principles and norms, written and unwritten, created by states, but also by other
subjects of international law based on their agreement of will, in order to regulate
international relations ".3
Briefly defined, public international law is a set of legal norms that govern the
relations that are established within the international society.4
For the proper conduct of legal relations within the international community there
is a set of rules that give meaning to the notion of international legal order.
The object of public international law is the legal relations that are established
between states (as bearers of sovereignty-expression of state power), as well as
between them and other subjects of international law (international organizations) and
the establishment of their rights and obligations in relations between they.
International relations, in general, are relations that go beyond the boundaries of a
single state and that are placed within the international society / community, escaping
the authority of a single state power.5
2. The role and purpose of public international law
As stated unanimously in the doctrine, the role of public international law is

materialized in the regulation of relations within the international society, ensuring the
harmonious functioning of this society, the contribution to the development of the
international society and last but not least the prevention and resolution of conflicts.6
Features of public international law:
a) Public international law is the expression of the agreement of the will of the
states
1
Mădălina Cocoşatu, Public international law, Syntesis and aplications, Second reviewed edition, Pro
Universitaria, Bucharest, 2016, p.11.
2
Gheorghe Moca, Public international law, vol. 1, Bucharest, 1983, p.83.
3
Adrian Năstase, Bogdan Aurescu, Public international law, C.H.Beck, Bucharest, 2018, p.27.
4
Laura Magdalena Trocan, Public international law, CH. Beck, Bucharest, 2014, p.1.
5
Idem.
6
Adrian Năstase, Bogdan Aurescu, op.cit., p.28I .
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b) It is a right of coordination and not a right of subordination - there is no

legislative, executive or judicial authority superior to each state.
c) The elaboration of the norms has a consensual character taking place
horizontally - the states being at the same time creators and recipients of the norm.7
d) The obligation of international law is that the rules once created and accepted
by the creators and at the same time their recipients, must be respected.
As stated in the doctrine: "International law is a right of coordination because
states are in relation to each other, in relations of independence and not dependence, in
international relations they have the obligation to comply with the law accepted by they
by virtue of their own sovereignty”.8
Despite the fact that no express sanctions are provided for non-compliance with
the rules of international law, these rules must be observed in the same way as the rules
whose sanction is specified.
3. The limits of International public law
According to art. 2 para. (7) of the UN Charter: “Nothing in this Charter shall
authorize the United Nations to intervene in matters which are essential to the internal
competence of a State, nor shall it compel its members to submit such matters for
settlement on the basis of the provisions of the Charter. However, this principle shall in
no way prejudice the application of the coercive measures provided for in Chapter VII.
”
We can say that the existence of a hierarchy cannot be the subject of international
law.
Even if one state is superior to another in terms of economic development, for
example, this aspect is not relevant.
Each state has as its attribute sovereignty as an expression of state power, being
legally equal to any other state.
In this sense we can discuss the principles enshrined in international documents:
the principle of self-determination of peoples and the principle of non-interference in
the internal affairs of a state.
4. The report established between International public law and national law
There are multiple differences between international law and domestic law,
differences given by the specifics of each. The differences derive from the object of
regulation, the way of elaborating the norms, the sources of each branch, their subjects,
the sanctioning system.
Regarding the relationship between public international law and domestic law, two
7
Idem.
8
Nicolae Titulescu, Sovereignty of states, Organization of peace in diplomatic documents, Bucharest,
1967, p. 846.
192
opposing theories have emerged in the specialized doctrine: the dualistic theory and the
monistic theory.
As for the dualistic theory, international and domestic law do not conflict because
they represent two distinct legal orders that do not interfere.
As for the monistic theory, it has as a fundamental idea that there is a single legal
order that consists of rules of domestic and international law that is addressed to both
individuals and states..9
In the Romanian Constitution in articles 11 and 20 are brought important
clarifications regarding the relations that are established between the domestic law and
the public international law.
Art.11alin. (1) - (3) of the Romanian Constitution regulates the relationship
between international law and domestic law.
The Romanian state undertakes to fulfill exactly and in good faith the obligations
incumbent on it from the treaties to which it is a party.
Treaties ratified by Parliament, according to the law, are part of domestic law.
If a treaty to which Romania is to become part contains provisions contrary to the
Constitution, its ratification may take place only after the revision of the Constitution.
Art.20 para. (1) - (2) of the Romanian Constitution contains regulations regarding
the International Treaties on Human Rights.
The constitutional provisions on the rights and freedoms of citizens shall be
interpreted and applied in accordance with the Universal Declaration of Human Rights,
the Covenants and the other treaties to which Romania is a party.
If there are inconsistencies between the pacts and treaties on fundamental human
rights, to which Romania is a party, and domestic laws, international regulations have
priority, unless the Constitution or domestic laws contain more favorable provisions.
Conclusion(s)
We consider that public international law has an extremely important role in

contemporary society, regulating the relations that appear between the subjects of
public international law, which leads to the continuous development of international
society, from a social, economic and legal point of view.
International law is a guarantee of promoting the common interests of the
international society without disregarding the provisions of domestic law, as it appears
from art. 11 para. (3) of the Romanian Constitution, namely, "If a treaty to which
Romania is to become a party contains provisions contrary to the Constitution, its
ratification may take place only after the revision of the Constitution."
We consider that an ideal society is a utopia, but in an ideal society in which the
population has minimal legal knowledge, and the elected have as their only interest the
good of the state and the people, when the provisions of a treaty are in the interest of
the state and the people. the revision of the Constitution would make the application of
9
See Carmen Moldovan, Public international law,Editura Universul Juridic, Bucharest, 2019, p.55.
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the provisions of that treaty more difficult, the revision of the Constitution could be
replaced by the consultation of Members of Parliament.
Prior to the consultation of the Parliament, the parliamentarians consult the
population of the place where they come from. Of course, this aspect could also have
negative consequences, because if politics puts pressure on the conscience of the
elected, then their decision would not represent the will of the people.
We consider that the consultation of the population through referendum is the only
favorable way in a democratic society.
Unfortunately not all people have a minimum of legal knowledge, in this case are
the decisions taken by referendum the best solutions for the welfare of the state?
Bibliography:
1. Carmen Moldovan, Public international law, Universul Juridic, Bucharest, 2019.
2. Adrian Năstase, Bogdan Aurescu, Public international law, C.H.Beck, Bucharest, 2018.
3. Mădălina Cocoşatu, Public international law, Syntesis and aplications, Second reviewed
edition, Pro Universitaria, Bucharest, 2016.
4. Laura Magdalena Trocan, Public international law, CH. Beck, Bucharest, 2014.
5. Gheorghe Moca, Public international law vol. I, University of Bucharest, 1983.
6. Nicolae Titulescu, Sovereignty of states, Organization of peace in diplomatic documents,
Bucharest, 1967.
194
RETURNING TO WORK AFTER

„WORKING FROM ANYWHERE” PERIOD,
DURING THE COVID-19 PANDEMIC
Florin Valeriu GILIA*
Abstract: Work was forcibly made more flexible worldwide during the COVID-19
pandemic. Work classical arrangements within companies, organizations, institutions were
abruptly replaced by working from home or remote working from locations which were chosen
in order to achieve higher productivity or from places having at least the minimum
specifications needed to conduct any businesses, such as computers, Internet access, offices, etc.
The COVID-19 pandemic completely changed the culture of work, particularly office
work. Some companies estimate that trends in this area will last, others believe that remote
working will not become a standard, and physical presence is still needed, mainly in terms of
hierarchical relationships and employees’ productivity.
Keywords: employees, COVID-19 pandemic, employment relationships, flexibility, work
from home, restrictions, mobility, physical presence, vaccination.
1. ‘Work’ during the COVID-19 pandemic period
Work was forcibly made more flexible worldwide during the COVID-19
pandemic, Work classical arrangements within companies, organizations, institutions
were abruptly replaced by working from home or remote working1. The COVID-19
pandemic, mainly its first wave, caused a huge shock to millions of people around the
world, especially in relation to their professional activity. As the movement of people
was limited and even prohibited in most countries, office working has been replaced by
homeworking -- from the home office2. Obviously, as the restrictions were eased, those
who could afford it, technically and/or personally, worked in half holidays in the
country, on vented summer terraces or anywhere they were able to be productive,
without being physically present at the office or other job premises. After some time of
‘no boss’ activities, for more and more people weekends became genuine half holidays,
during which there were also doing work hours. Thus a new dynamic was born, which
has accelerated mobility in the labour relationships, in a number of industrial fields,
making home-office the rule rather than the exception, as it was until now. The
COVID-19 pandemic completely changed the culture of work, particularly the office
* Lecturer PhD, Valahia University of Targoviste.

1
Military ordinance no. 1 on 17 March 2020 on first emergency measures concerning the
agglomerations of people and the cross-border movement of goods, published in Official Gazette no.
219 on 18 March 2020.
2
Military ordinance no. 2 on 21 March 2020 on measures to prevent the spread of COVID-19, published in
Official Gazette no. 232 on 21 March 2020 and Military Ordinance no. 3 on 24 March 2020 on measures
to prevent the spread of COVID-19, published in Official Gazette no. 242 ofn24 March 2020.
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work. Many companies say trends in this area will last, others believe that remote
working will not become a standard, as physical presence is still a needed, mainly in
terms of hierarchical relationships and employee productivity.
Although before the pandemic employees who could perform remote working
needed special permission from their employers to work in this framework and very
often they did not obtain it, since spring 2020 onwards, remote working has become
the standard in terms of work for a number of office professions. Although many
people thought that remote working would last for a short time, at present due to a
virus that still poses a high risk of contagion even a year later, both managers and
employees are wondering whether the way in which work is done hasn’t changed
fundamentally.
Companies, as well as states encouraged or asked their employees to work from
home in order to limit the risk of infection with the new coronavirus. Therefore, at
present, a large number of employees are still working remotely. Obviously, this came
with the related ‘invoice’, that is the assessment of how work is being done and its
effectiveness. As a consequence, some employees might lose their jobs following the
finding that they were not ‘meeting expectations’.
Employees enjoyed both the protection provided by their own homes and the time
they saved thanks to the fact that they no longer had to travel to and from their
workplaces, and the long work meetings being replaced with e-mails and online
conferences. There were also drawbacks, especially in relation to complex projects,
because virtual meetings are even more challenging than physical brainstorming
meetings or meetings held just to put ideas on paper, as it is difficult to manage
conflicts of ideas remotely. Social interactions within teams are also lacking, although
some companies organized online Happy Hours meetings in order to keep their
employees’ optimism, however, these were not enough for people lacking enthusiasm
and threatened by the possibility of contacting COVID-19, not to mention a gloomy
outlook on keeping their jobs.
These disadvantages might be what business leaders take into consideration when
they reject the idea of allowing their employees to continue working from home as the
acute phases of the pandemic passed and the epidemic is now nearing the end. The
business leaders might be thinking that remote working is abnormal and it will be
corrected as soon as possible. At an online conference, David Solomon, CEO of
Goldman Sachs, said ‘remote working is a temporary form of work. For a business like
ours, innovative and with a strong apprenticeship culture, this way of working is not
ideal. It is an abnormality that we will correct as soon as possible’3.
Although David Solomon admitted that the pandemic has accelerated work
digitization and even created new ways for banks to make their operations more
effective, he thinks that the health crisis will not bring major changes in the long term
in the ways banks see employment relationships, which they consider physically
necessary. ‘I am very faithful to the principle of offline networking, especially in a
business like ours, and I think that, as we are nearing the end of the pandemic, the
3
https://www.forbes.ro/ceo-ul-goldman-sachs-telemunca-nu-reprezinta-noul-normal-este-o-aberatie-pe-
care-o-vom-corecta-cat-mai-curand-posibil-205012
196
general way our business works would not be very different from the one before the
coronavirus pandemic’4.
These ideas contradict the culture that banks created and now companies such as
Microsoft, Twitter and Facebook perpetuate, as they believe that remote working will
become a permanent option for a large part or all of their employees. Obviously, these
companies carry out a different kind of activities, centered on computer use,5 but the
trend is to limit expenses in terms of time for employees and activities in locations for
which employers spend large amounts of money6.
2. Status of legal employment relationships during the COVID-19 pandemic
Considering all the things that have happened and are still happening with regard
to work during the COVID-19 pandemic and mainly the sudden and abrupt changes in
work processes, which entered the legal employment relationships very deeply, work in
almost all employing entities was jeopardized.
A positive aspect we can all see at present is that for a ‘healthy’ national law
system and for a safe and effective economic life, legal regulations in terms of
employment relations are an important pillar, to which the lawmaker should pay great
attention and for which the employer should be responsible. However this has not
happened in all countries, and employers must survive in order to be able to carry out
economic activities after the pandemic as well.
Our economic and legal situation during the pandemic was a challenge for all of
us. However employers had a challenge even greater, as they had to cope with medical,
legal, and financial requirements, and to adapt to the new situation in order not only to
preserve their financial resources, which are needed to survive and restart the economy,
but also to keep their human resources – without which economy itself could not be re-
launched. It is therefore necessary to both review the available solutions in order to
develop proper working relations, and also to mark the various misinterpretations or
omissions by the employers, whether intentional or not, that have occurred mainly
throughout the state of emergency, during the Covid-19 pandemic.
2.1. Remote working7 and work from home

According to the legal definition ‘remote work is the form of work where an
employee, on a regular and voluntary basis, carries on the duties assigned to his or her
4
Idem.
5
CEO of Barclays British Bank, Jes Staley, said: ‘The workplaces of thousands of employees in an
office building at the same time may never happen again.’
6
CEO of Morgan Stanley Investment Bank, James Gorman, said; ‘It is still uncertain how work in this
the institution will be done after the pandemic, but it will certainly need much less buildings in the
future.’
7
In Romania remote working was enacted by Law no. 81/2018 on 30 March 2018 on the regulation of
remote working, published in Official Gazette of Romania, Part I no. 296 on 2 April 2018, as amended
by Government Emergency Ordinance no. 132/2020, Government Emergency Ordinance no.
182/2020 and Government Emergency Ordinance no. 192/2020.
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job, occupation or profession in another place than the workplace the employer
provides, at least once a month, by using information and communication
technology”8.
According to Law No. 55/20209, during the alert level, an employer may decide
that work should be done as remote work or work from home, while workplace and
duties10 shall change with the employee's consent only. To do so, an addendum11 to the
work contract should be concluded by including the provisions which law lays down
for a contract of this sort.12
The law stipulates for the possibility to apply, during the alert level, the provisions
of Article 48 of the Labour Code and Article 3 of Law No. 81/2018, which allow the
employer to unilaterally change the workplaces, temporarily, as a health protection
measure for employees.
Also, there is an inconsistency between National Centre for Emergency Situations’
Decision no. 24/202013 which stipulates that employer must organize work so that
employees can work from home, and Law no. 55/2020 which stipulates the possibility
and not the obligation for employer to change the way how work is carried out by
using remote working14. This is a more sensitive subject on which all employers have
8
Article 2(a) of Law no. 81/2018 on 30 March 2018, as amended and supplemented.
9
Law no. 55/15 May 2020 on measures to prevent and combat the effects of the COVID-19 pandemic,
published in Official Gazette of Romania no. 396 on 15 May 2020, as amended and supplemented.
10
Art. 16 of Law no. 55/15 May 2020 stipulates that: ’During the alert level, depending on the specific
activity and needs, the heads of the public institutions involved in preventing COVID-19 pandemic may
order the secondment with the prior consent of the employee and the seconding employer, provided
that the employer receiving the secondment is made is from the same field of activity.’
11
Article 3 of Law no. 81/2018 on 30 March 2018 states that ‘remote working is based on the parties'
will agreement and is expressly provided for in the individual employment contract when it is
concluded for new staff or by means of an amendment to the existing individual employment contract.’
12
Article 5 of Law no. 81/2018 on 30 March 2018 provides that ‘in the case of remote working, the
individual employment contract shall contain, in addition to the elements provided for in Article 17(3) of
Law no. 53/2003, republished as amended and supplemented, the following:
”(a) a statement that the employee is employed on a contract basis;
(b) the period and/or days during which the employee is working at a workplace organized by the
employer;
(c) location(s) of remote working, as agreed by the parties;
(d) the schedule in which the employer is entitled to check the work of the employee and the practical
arrangements for carrying out the check;
(e) the method of highlighting the employee’s working hours;
(f) the responsibilities of the parties that were agreed according to the workplace(s), including their
health and safety responsibilities at work in accordance with the provisions of articles 7 and 8;
(g) employer’s obligation to provide the transport to and from the workplace and of the materials which
the employee uses in his activity, as appropriate;
(h) employer’s obligation to inform the employee on the provisions of law, the applicable collective
employment agreement and/or the internal rules concerning the personal data protection and the
employee’s obligation to observe these provisions;
(i) measures taken by the employer to ensure that the employee is not isolated from other employees
and that he or she is able to meet with his or her colleagues on a regular basis;
(j) the conditions under which the employer shall bear the cost of the remote working.’
13
National Emergency Committee of Romania.
14
Article 17 of Law no. 55/15 May 2020 stipulates that ‘during the alert level, employers shall decide
work from home or remote working where the specific activity allows it, in compliance with the
provisions of Law no. 53/2003 - Labour Code, republished, as well as subsequent amendments and
supplements, and Law No 81/2018 on the Regulation of remote work.’
198
had to reflect and adapt the way in which work was carried out in accordance with his
status and interests.
2.2 Obligation to implement personalized work programmes

Employers with more than 50 employees were required to provide personalized
work schedules, without employees’ consent, so that different fractions of employees
(of at least 20 percent of the staff) can start and end work every new hour throughout a
3 hour-interval. This obligation involved setting at least 3 different working intervals,
starting at least 1 hour apart the previous interval (e.g. 8:00 a.m. to 4:30 p.m., 9:00 a.m.
to 5:30 p.m., 10:00 a.m. to 6:30 p.m.) Under the emergency ordinance making
provisions on this subject, the individualized work schedule and the method of
allocating it per day were established by concluding an addendum to the individual
employment contract15, pointing out that in certain public or private organizations work
schedule was established by decision of the head of the institution and was compulsory
for employees/public officers and contract staff.
Although the emergency ordinance initially stipulated that employees’ consent
was not needed, then the necessity of signing an addendum was pointed out. However,
we must keep in mind that Law no. 55/2020 was clearer and expressly stated that there
was no need for employees’ consent, which was not otherwise obtained, stressing that
some sort of understanding between employees to use one work schedule or another
was conceived, based on their personal needs or the needs of the
companies/institutions. A problem occurred for single job-staff or managerial staff
who, by the nature of their job, were forced to have a fixed or even extended schedule,
overlapping with the staggered schedule of their colleagues or subordinate staff. Under
those circumstances, we assume that appropriate time off compensation solutions or
extra hours were identified, in compliance with the legal provisions in force.
2.3. Situation of time-out for monitoring children during

temporary closure of educational establishments
The relevant legal provisions stipulated that:
‘(1) Leave shall be granted to one of the parents16 for the supervision of the
children, in the event of the suspension of the classes or the temporary closure of the
educational establishments17 where they are enrolled, as a result of adverse weather
15
Article 21 of Law no. 55/15 May 2020 provides that ‘during the alert level, by way of derogation from
the provisions of Article 118(1) of Law no. 53/2003 - the Labour Code, republished, as amended and
supplemented subsequently, the employers in the private system, central and local public authorities
and institutions, irrespective of the method of financing and subordination, as well as autonomous
state companies, national companies, and companies in which the share capital is wholly or mainly
owned by the state or by an administrative-territorial unit with a number of more than 50 employees,
organize the work schedule in such a way that staff are divided into groups that start or end work at
least one hour difference.
16
The provisions of this law applied to all employees in the public and private environments, according
to Article 5 of Law no. 19/2020 on 14 March 2020, as amended and supplemented.
17
Educational establishments also include pre-school educational establishments, according to Article
1, paragraph 5 of Law no. 19/2020 on 14 March 2020, as amended and supplemented thereafter.
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conditions or other extreme circumstances, so decreed by the competent authorities

concerned.
(1^1) Leave shall be granted to one of the parents for the supervision of children,
including during school holidays, in the situation of temporary closure of educational
establishments and pre-school educational establishments, as a result of the state of
emergency decreed under the law.
(1^2) By way of exception, in 2020, provisions of paragraphs (1) and (1^1) shall
also apply for the next period following the end of the state of emergency, until the
completion of school courses in the second term.
(1^2)** By way of exception, in 2020, provisions of paragraphs (1) and (1^1) shall
also apply for the next period following the end of the state of emergency, until the end
of the school year18. However, of these provisions, which not only could but also
affected employers' interests, benefited only those employees whose jobs did not allow
remote working or working from home19.
It is obvious that this benefit was extended to all employees who acted as legal
representatives of one or more minors or acted in a minor / minors’ interest20.
The above-mentioned people could not benefit of these facilities if:
- they were on parental leave, provided for in Article 2 (1) or Article 11 (2) or
Article 31 (1) of the Government Emergency Ordinance no. 111/2010 concerning the
parental leave and monthly allowances, approved with amendments by Law no.
132/2011, as amended and supplemented,
- they were the personal assistant of one of their minor children or were on unpaid leave,
18
Article 1 of Law no. 19/2020 on 14 March 2020 on the leave granting for child supervision, in the
event of temporary closure of educational establishments, amended by decree of President of
Romania no. 195/2020, Government Emergency Ordinance no. 30/2020, Government Emergency
Ordinance no. 32/2020, Government Emergency Ordinance no. 41/2020, President of Romania
Decree no. 240/2020, Government Emergency Ordinance no. 48/2020, Government Emergency
Ordinance no. 70/2020, Law no. 55/2020, Law no. 59/2020 and Law no. 61/2020.
19
Article 1(2) (b) of Law no. 19/2020 on 14 March 2020, as amended.
20
Article 1, paragraph 3 of Law no. 19/2020 on 14 March 2020, as amended and supplemented
thereafter, states that “Parent, for the purposes of this law, means:
(a) the natural parent, based on Law No 287/2009 on the Civil Code, republished, as amended and
supplemented;
(b) the person who adopts a child;
(c) the person who has the child(s) in adoption for adoption;
(d) the person who has the child in placement or in guardianship;
(e) the person designated under Article 104 (2) of Law no. 272/2004 on the protection and promotion of
the child rights, republished, as amended and supplemented;
(f) the parent or legal representative of a disabled adult who is registered in an educational establishment.
(3^1) the parent or legal representative of the severely disabled child who opted for the granting the allowance
under Law No 448/2006 on the protection and promotion of the rights of persons with disabilities,
republished, as well as subsequent amendments and supplements, shall benefit from the provisions of this
law, only in circumstances where the activity of the day service is suspended as a result of adverse weather
conditions or other extreme circumstances so decreed by the competent authorities concerned.
(3^2) the provisions of this law shall also apply to the parent or legal representative who has in his or her care,
supervision and maintenance an adult person who has a serious disability or a serious disability with a
personal assistant who has opted for the granting the allowance under Law No 448/2006, republished, as
amended and supplemented thereafter, only if they are covered by day-to-day services, the activity of which
has been suspended as a result of adverse weather conditions or other extreme circumstances so decreed
by the competent authorities concerned.”;
200
- they had their employment relationship suspended for the temporary

interruption of the employer's activity, under Article 52 (1) (c) of Law No 53/2003 -
Labour Code, republished, as amended and supplemented21.
The provisions of this law didn’t apply also where the other parent did not get
wages and wage equivalent income, income from self-employed activities, income
from intellectual property rights, income from agricultural activities, forestry and
fishing, subject to income tax under the provisions of Law no. 227/2015 on the Tax
Code, as amended and supplemented thereafter, except when he or she was provided
for serious or accentuated disability and thus exempted from income tax22.
For certain fields (e.g. employees of the national defense system, prisons, public
health units, residential social services and other categories decided by Minister’s
order), employees could benefit of salary increases under Law no, 19/2020, if the other
parent does not enjoy paid days-off23.
2.4. Extending parental leave and adoption leave

for the children in adoption for adoption
It is obvious that this facility came to provide support to employees who could not
leave their children alone at home during the school closure during the Covid-19
pandemic. This closure was rather untimely and led to significant problems both in
case of employees -- parents, and in case of employers who needed workforce
physically present at workplaces.
According to Article 50 of Law no. 273/2004, republished, ‘the adopter or,
optionally, any of the spouses of the adoptive family’ benefited of these rights.
Therefore, in case of adoption for the adoption of two or more children, the leave and
the allowance shall be granted to one of the spouses of the adoptive family24.
21
Article 1, paragraph (3^3) Law no. 19/2020 on 14 March 2020, as amended and supplemented.
22
Article 1, paragraph (3^4) Law no. 19/2020 on 14 March 2020, as amended and supplemented.
23
Article 3(1) of Law no. 19/2020 on 14 March 2020, amended, provides that:
‘(1) the staff referred to in Article 32 (**) Paragraph 1 of Annex no. 1 to Decree no. 195/2020 on the
establishment of an emergency situation in the territory of Romania shall be entitled to an increase in salary in
addition to the amount provided for in Article 3 (1), corresponding to the number of working days during the
emergency situation where the other parent does not enjoy the rights provided for in article 1 or in this article
(2) for the staff referred to in Article 32 (**)(1) of Annex No 1 to Decree no. 195/2020 on the establishment of an
emergency situation in the territory of Romania, the increase provided for in paragraph 1 shall be
borne by the budgets from which it is based.
(3) for staff of institutions and public authorities as defined in Article 2(1)(30) of Law no. 500/2002 on
public finances, as amended and supplemented, and in Article 2(1)(39) of Law no. 273/2006 on local
public finances, as amended and supplemented thereafter, irrespective of the financing and
subordination system, including activities financed entirely from own revenue, established with public
institutions, the increase provided for in paragraph 1 shall not be taken into account in determining the
limit provided for in Article 25 of Framework Law no. 153/2017, as amended and supplemented’.
24
Article 50(1) of Law no. 273/2004, republished provides that ‘The adopter or, optionally, any of the
spouses of the adoptive family, …………., hereinafter referred to as the entitled person, may benefit
from accommodation leave of a maximum duration of one year, which also includes the period of
adoption of the child, and a monthly allowance;
(1^2) If the person who has benefited from the accommodation leave and allowance adopts one or more children
within a period of up to 12 months from the end of the accommodation leave for the previously adopted child, if
the calculation of the allowance in accordance with paragraph 1 above results in a monthly allowance for
accommodation leave lower than the amount of the allowance previously due, then it shall be granted.”
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According to the provisions of Article 50 of Law no. 273/2004, republished,

the adoption leave can cover a maximum period of 1 year and includes the period
of child entrustment with a view to adoption. In addition, under Article 71 of the
Implementing provisions for Law no. 273/2004, approved by Government Decision
no. 579/2016, both the allowance and the adoption leave shall be granted
proportionately, depending on the number of calendar days remaining since the
date on which the court ruling on adoption was enforced, until the time limit
provided for granting the adoption leave or, where applicable, until the time limit
for which it was granted (where the adopter applied for leave of less than 1 yea r25).
The allowance for adoption leave is not a right or a social benefit granted to a
child, intended to replace the salary, which the adopter no longer receives during
the adoption leave26.
Thus, in the case of a person/family who is entrusted for adoption two or more
children at the same time and who meets the conditions included in Article 50 (1) of
Law no. 273/2004, republished, and opts to enter the adoption leave, a single adoption
leave and one allowance relating to it shall be granted.
If one of the children entrusted for adoption is entrusted less than 1 year from
the other child, the period for the adoption leave and the related allowance shall be
determined from the date of application for the first child (no earlier than 12
August 2016 -- the date of entry into force of Law no. 57/2016 that amends and
supplements Law no. 273/2004), until end of the maximum stipulated for this kind
of leave for the second child.
For people who, on the date when the emergency ordinance entered into force,
were on parental leave or adoption leave for the children entrusted for adoption,
such kinds of leave and the related allowances were extended until the date of
25
Article 50 (1) shall be replaced by the following: (2) of Law No 273/2004, republished provides that
‘The leave and allowance referred to in paragraph 1 shall be subject to the conditions laid down in
paragraph 1.' Paragraph 1 shall be granted on the basis of the request of the person entitled, to which
the certificate of registry on the basis of which the court order of adoption for adoption or, where
appropriate, consent to adoption is made, the document attesting the removal of the child to the
adopter/adoptive family, registered at the direction in whose administrative-territorial radius the child
has been protected, as well as proof of actual entry into leave or suspension of the activity. The
application shall be completed in accordance with the model approved by the methodological rules for
the application of this Law."
26
Article 50, paragraph (1^1) of Law No 273/2004, republished, provides that ‘The amount of the
monthly allowance referred to in paragraph 1 shall be calculated in accordance with the procedure laid
down in Article 17.'; (1) is 85 % of the average net income achieved in the last 12 months of the last 2
years preceding the date of issue of the court order of adoption for adoption. The amount of the
monthly allowance may not be less than the amount resulting from the application of a multiplier of 3.4
to the value of the social reference indicator and the maximum amount thereof may not exceed the
amount of 8,500 lei.”
202
completion of the state of emergency 27, provided that from that date on they will
resume work.
2.5. Extending validity in case of collective work agreements

According to the emergency ordinance, the validity of the collective work
agreements shall be maintained for a period of 90 days after the end of the state of
emergency. Under Law no. 55/2020 the extension period will be extended for 90 days
since the date on which the alert level comes to an end.
These provisions cover both the collective work agreements which normally come
to an end during the state of emergency, and those which would normally expire during
the alert level or within the next 90 days28.
2.6. Collective bargaining at the end of the alert level

Both employers and employee organizations, which are parties to collective work
agreements that expired during the Covid-19 pandemic and that have been extended by
the effect of the law, shall have to initiate collective bargaining within 45 days since
the end of the alert level, no matter how many times it was or will be extended.
2.7. Collective labour disputes in certain fields

During the alert level, declaring, triggering or conducting collective labour
disputes in certain areas, such as the national energy system, operational units in
nuclear sector, fire units, health and social care units, telecommunications, radio, public
television, railway transport, public transport, sanitation of cities and villages, gas
27
Article 5 of O.U.G. No. 70/2020 of 14 May 2020 on the regulation of measures, as from 15 May 2020,
in the context of the epidemiological situation caused by the spread of the SARS-CoV-2 coronavirus,
for the extension of certain time limits, for the amendment and completion of Law No. 227/2015 on the
Tax Code, of the Law on National Education No. 1/2011, as well as other normative acts, published in
the Official Gazette of Romania no. 394 of 14 May 2020, with subsequent additions and amendments,
provides that ”(1) For persons who on the date of entry into force of this Emergency Ordinance are on
leave and the payment of the child-rearing allowance provided for in Article 2 and the disability care
allowance provided for in Article 31 of the Emergency Ordinance of the Government of the Republic of
Romania. 111/2010 on leave and monthly allowance for raising children, approved with amendments
by Law No 111/2010. 132/2011, with subsequent amendments and additions, or on leave and the
payment of the accommodation allowance for children entrusted for adoption, provided for in Article 50
of Law No 17. 273/2004 on the adoption procedure, republished, with subsequent amendments and
additions, including the extension provided for in the Emergency Ordinance of the Government No.
32/2020, with subsequent amendments and additions, and the Government Emergency Ordinance
No. 59/2020 for the establishment of additional measures in the field of social protection in the context
of the epidemiological situation caused by the spread of the SARS-CoV-2 coronavirus, the granting of
rights shall be extended until 31 May 2020.”
28
Article 6 (2) of the GEO no. 70 on 14 May 2020 about measures, from 15 May 2020, in the context of
the epidemiological situation caused by the spread of the SARS-CoV-2 coronavirus, for the extension
of certain time limits, for the amendment and completion of Law No. 227/2015 on the Tax Code, the
Law on National Education No. 1/2011, as well as other normative acts, published in the Official
Gazette of Romania no. 394 on 14 May 2020, with subsequent additions and amendments, provides
that ‘The validity of collective work agreements shall be maintained for a period of 90 days after the
end of the state of emergency.”
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supply, electricity supply, heat and water supply, were banned. These areas were very
important socially during the pandemic, as they supported living normal life styles at
home, or in areas of utmost importance to people: grocery stores, home food delivery,
fuel supply, public administration, etc.
2.8. Resigning in certain areas

The dismissal notice period in case of resigning did not begin to run, and as the
alert level was declared within the period that was flowing, the flow suspended for the
whole duration of the alert level for healthcare staff, social care staff, defense, public
order, and national security staff. This measure came to protect the frontline
institutions or units, which faced huge pressure during this time. The staff’s leaving
could have led to work organizing problems, with the emphasis that, in some cases,
there were even ‘desertions’ which triggered quite serious business blockages for
companies and institutions that did not have staff enough.
2.9. Aspects of quarantine leave and allowances

Employees who are entitled to the health insurance public system and who were
quarantined due to being suspected of COVID-19 infection, benefited of quarantine
leave and allowances for the period of quarantine. In this case, family doctors issued
sick leave certificates after the last day of the quarantine period, without exceeding a
period of 30 days since the end of the quarantine. These medical certificates could be
send to employers and health insurance companies by electronic means of remote
communication, mainly by e-mail, in compliance with the official travel bans. These
measures were applicable until 30 September 2020.
It is clear that there were also inconsistencies in the implementation of these
measures because the travel bans -- which the police imposed by force -- and the state's
administrative incapacity led to putting people in quarantine without allowing
employees to obtain quarantine allowances, with the consequence of being given rest
breaks by force.
3. What will the world be like after the coronavirus pandemic?
Guy Ryder, Director General of the International Labour Organisation (ILO),

said the impact of the COVID-19 pandemic on the labour sector was ‘catastrophic’, as
it was much worse than the impact of the 2008 global financial crisis29.
Corporate leaders waited for a safe combination of mass testing, effective
treatments against COVID-19, contact tracking and large-scale vaccination, before
considering the employees’ return to work30.
29
‘The impact was devastating, catastrophic. Overall, for all those who work, it is a crisis four times
worse than the crisis that was caused by the financial crisis of 2008-2009’, said Guy Ryder in the
ministerial meeting of the International Labour Organisation (ILO).
204
There was also an uneven economic recovery after the pandemic, partly fuelled by
the significant disparities in the distribution of the COVID-19 vaccines. This mean of
leaving the house and being able to go to work was not sufficient in the first phase, as it
was reserved for those in the basic areas.31 With the increase in vaccine manufacturing
capacities, as well as the vaccine types, a greater opening of the labour market can be
noticed. The population's immunization is increasing and more and more areas are
returning to normal. Therefore, more and more employees are returning to work.
Bibliography:
1. Military ordinance no. 1 on 17 March 2020 on first emergency measures concerning the
agglomerations of people and the cross-border movement of goods, published in Official
Gazette no. 219 on 18 March 2020.
2. Military ordinance no. 2 on 21 March 2020 on measures to prevent the spread of
COVID-19, published in Official Gazette no. 232 on 21 March 2020 and Military
Ordinance no. 3 on 24 March 2020 on measures to prevent the spread of COVID-19,
published in Official Gazette no. 242 ofn24 March 2020.
3. Law no. 81/2018 on 30 March 2018 on the regulation of remote working, published in
Official Gazette of Romania, Part I no. 296 on 2 April 2018, as amended by Government
Emergency Ordinance no. 132/2020, Government Emergency Ordinance no. 182/2020
and Government Emergency Ordinance no. 192/2020.
4. Law no. 55/15 May 2020 on measures to prevent and combat the effects of the COVID-
19 pandemic, published in Official Gazette of Romania no. 396 on 15 May 2020, as
amended and supplemented.
5. Law no. 19/2020 on 14 March 2020
6. Decree of President of Romania no. 195/2020
7. Government Emergency Ordinance no. 30/2020
10. President of Romania Decree no. 240/2020
30
‘We will see that returning to work will take place much slower than expected, particularly in
organizations where management believes employees can be as productive as working from home’,
said Liz Fealy, head of the Global Workforce Department within the EY Consulting Group.
31
‘As we look at the recovery process in which some economies are growing rapidly, new jobs are being
created at high speed, I think we need to be aware of how uneven the return will be if it continues on t
he current path, said the Director of the International Labour Organisation (ILO).
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Conference Paper
LIMITATIONS AND DISCONTINUITIES

OF OWNERSHIP IN POSITIVE ROMANIAN LAW
Ionuţ DOJANĂ*
Abstract: For the first time in positive Romanian law, by the new civil code, beyond the
legal contents of subjective ownership, the legislator rules expressly the material limits of
ownership expressing a pragmatic view of the extent and effective material exercising of
ownership, from the centre of Earth and down to the lower limit of national air space. The
legislator approaches directly, by positive law norms, the issue of contents and material limits of
subjective ownership having as object a land. With respect to private ownership having as
object an outside built-up area land, the current positive law awards rights to third parties,
subjective rights that overlap the same object of private ownership, legal situation which may be
construed as a new legal limitation of the right or a discontinuity of perpetual and continuous
nature of private ownership. The work exemplifies and analyses the situation of collision of
private ownership an outside built-up area land with the right of hunting of third parties on the
same land, two distinct subjective rights, on the same material object, belonging to different
owners. It is also exemplified and analysed a common law which approaches the idea of a
discontinuity of subjective private ownership afferent to the land. It is proposed an analysis of
the base of periodical ownership from the perspective of perpetual and continuous nature of
subjective ownership .
Keywords: the ownership, new civil code, positive Romanian law
Introduction
The ownership is one of the main fundamental rights which generally defines
human society respectively different institutional structures of it or even the kind of
political-state organisation, reason for which, based on the experience of socialist
society multilaterally-developed in Romania, political concept that has marked few
generations providing a particular signification, understanding and value to the notion
of ownership, this day, moreover, through the experience of our society, we must
analyse the base and contents of ownership as reflected in positive Romanian law.
Therefore, our scope is to analyse in this work the signification, contents, extent and
limits of private ownership1, from the perspective of Romanian common law and law
philosophy developed by our law authors.
* PhD Assistant Professor, TIBISCUS University of Timisoara.

1
With respect to public ownership, generally, we must consider that one enforces the norms
determining the legal regime of private property, as common law, according to the disposals of art.
554 Civil Code: “If law does not stipulate otherwise, the disposals applicable to private ownership are
also applied to public ownership, however, only to the extent they are compatible to the latter.”
206
Section 1: Sedes materiae
1.1. Legal application of ownership in Romanian Constitution.

In positive Romanian law, the ownership has a constitutional legal
acknowledgement stipulated by the disposals of art. 136 and art. 44 of Constitution
dated 21.11.1991 reviewed in 2003. The constitutional disposals mentioned do not
define the signification and contents of the ownership however, despite all these, the
constitutional regulation represents firstly a legal acknowledgement of the existence of
ownership, determines the constitutional nature of the ownership and its position in the
hierarchy of the system of subjective rights respectively the attributes and characters of
the ownership.
We include, in this work, the following constitutional regulations by which:
(1) it is acknowledged and applied the existence, place and role of private
ownership and public ownership, despite the normative situation before 1991, the year
of adoption of Constitution, respectively under the legal regulation of socialist
multilaterally-developed state which pays special attention to public ownership in the
detriment of the existence, role and extent of private ownership: “Art. 136. Propriety.
(1) The property is public or private.”
(2) it is acknowledged that the ownership, regardless its nature and holder, is
secured by state equally as well as the fact that private property is inviolable, under the
conditions of organic law: “Art. 44. Ownership. (1) The ownership (is) secured. The
contents and limits (of this ownership) are determined by law. (2) The private property
is equally secured and protected by law, regardless the holder.”2 “Art. 136. Propriety.
(5) Private property is inviolable.”
(3) the fact that only certain assets and only under certain conditions such assets
may form the exclusive object of public property (wealth of public interest of subsoil,
air space, waters with valuable energetic potential, of national interest, beaches,
territorial sear, natural resources of continental plateau etc.), per a contrario, for
instance, in other situations, the subsoil without wealth declared by legal document as
being of public interest may be subject to private ownership like the water, without
valuable energetic potential and not declared as being of national interest, may be
object of private ownership (art. 136 par. 3 and art. 44 par. 5 of Romanian
Constitution).
(4) the fact that private ownership is also attached to the subsoil of private
property since, only in certain exceptional situations, the subsoil may be used by state
or by a public authority respectively only for works of public interest. This disposal has
an overwhelming importance with respect to material extent of private ownership
2
It must be noticed that in the system of constitutional regulation, the public ownership is not legally
protected, equally and non-discriminatorily as private ownership. The private ownership is legally
protected equally only with respect to its owner, non-discriminatorily. This means that the public
ownership has a different legal regime and superior legal regime of private ownership, as it results
from the entire positive Roman system and mainly from the recent Roman Administrative Code
adopted in 2019.
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since, based on the regulation mentioned, by a logical interpretation with the per a
contrario argumentation, it results that, usually, the ownership on the subsoil is and
remains in the patrimony of the holder of private ownership.
1.2. Legal application of ownership in organic regulations.

The regulation of general legal regime of property is and remains object of organic
laws, as stipulated by the disposals of art. 73 par. 3 let. m) of Romanian Constitution
therefore, the legal norms regulating the ownership have immediate legal value under
the one of constitutional norms but at the peak of the hierarchy of all other legal norms
forming Romanian positive law. Considering such position, we will be entitled anytime
to analyse the constitutional conformity of some legal norms respectively the legality
of some legal norms subordinated to organic norms which determine the general legal
regime of the ownership.
Currently, the general legal regime of ownership is applied by the disposals of
Romanian Civil Code 2009 (Law no. 287/2009 related to civil law), by law no.
18/1991 (disposals of art. 1-7), with respect to private ownership and public ownership,
generally, by disposals of Administrative Code of 2019, by disposals of art. 858 and
the following of Romanian Civil Code respectively the disposals of Law of mines no.
85/2003, Law of oil no. 238/2004, Law of electricity and natural gas no. 123/2012.
The basic disposal is of Civil Code of 2009 according to which: Art. 555. (1) The
private property is the right of holder to possess, use and dispose of an asset
exclusively, absolutely and perpetually, within the limits determined by law. In this
respect, the legislator understands to define the subjective ownership, definition that we
shall analyse within a further section. This disposal represents the common law
including for the right of public property, if we follow the subject in relation with the
holder of subjective ownership and, equally, it concerns any material object of the
ownership (any asset, in legal terms).
With respect to outside built-up area lands, on which we focus in this work as
material object of private ownership, the regulation already included in the civil law is
completed by law no. 18/1991 (art. 1- art. 5).
The legal disposals previously mentioned legally define types and categories of
lands respectively their legal regime and correlatively, the legal contents of subjective
ownership. On the other hand, in a systematic analysis, we must consider a new and
essential disposal for correct understanding of the material limits of subjective
ownership mainly considering that this disposal is a novelty disposal in Romanian
objective law by disposals of art. 556 and 559 of civil code of 2009 applied in 2011
with respect to the limits of exercising the private ownership as well as to material
extent of ownership on lands.
There are also extremely important and relevant the legal disposals with respect to
legal regime of the underground of a land subject to private ownership and, by this
work hypothesis, we exemplify few norms of Law of mines no. 85/2003 attesting the
conditions or which minerals may be economically relevant to determine their
208
qualification as mineral resource and implicitly the consequence of restricting the

ownership of holder of soil area.3
1.3. Preliminary conclusion related to positive right related

to subjective ownership
As a preliminary conclusion with respect to constitutional and organic regulation of
the ownership, from the perspective of its material extent, we emphasize that, currently,
Romanian positive law applies the ownership as being a subjective right offering the
holder the power and possibility to use and dispose of its asset exclusively, absolutely
and perpetually, within the legal norms set forth by law, by court judgement or by a
convention, as well as within the material and corporal limits if its asset and, particularly
with respect to the ownership on the lands, as general legal norm, the subjective
ownership of the holder covers materially both the soil and the subsoil and the surface
covering the land, to the centre of Earth and down to the lower limit of national air space
or, if any, up to the lower limit of extra-atmospheric space of planet4.
On the other hand, the right maintains the application of some legal limitations of
ownership out of which we state the general ones:
1. If wealth is discovered in the subsoil of a property (mineral resources, oil
and natural gas) valuable and declared as such, formally, as being of public interest,
the subjective ownership is limited in favour of state which acquires a right of use on
the subsoil afferent to private property of soil.5
2. If the underground of a property becomes necessary for works of general
interest, the subjective ownership is restricted in favour of state which acquires a right
of use on the ground afferent to private property of soil, with the obligation to
compensate the owner of soil for damages caused to the soil, plantations or
constructions as well as for other damages.
3. Correlatively, if the space on the land becomes of public interests and
coincides with the air space6 serving civil or military air navigation, the subjective
ownership is restricted in favour of state.
3
Art. 2. (1) The mineral resources subject to this law are: coals, ferrous, non-ferrous minerals,
aluminium and aluminiferous rocks, noble, radioactive metals, of rare and dispersed earth, haloid
salts, useful non-metalliferous substances, useful rocks, precious and semi-precious stones, turf,
therapeutic mud and turfs, bituminous rocks, non-combustible gases, geothermal waters, attached
gases, natural mineral waters (gaseous and still), therapeutic mineral waters, as well as mine residual
product from pits and settling pool.
4
Law no. 21/2020 related to Air Code of Romania defines the notion of national air space only referring
to the lower limit of extra-atmospheric space as being “the air column situated over the territory where
Romania exercises suzerainty, down to lower limit of extra-atmospheric space” without stating where
above the ground starts the lower limit of national air space where and in the volume of which the air
traffic or other activities are carried out.
5
Currently, with respect to physical delimitation between soil and subsoil, mainly from the perspective of
potential interaction of two subjective rights belonging to different holders, respectively if there is a thickness
limit accurately pre-determined by law, we couldn’t identify a legal norm or a technical norm in this respect.
6
According to the disposals of art. 2. par. 1 of Law no. 257/2001 related to the manner of action against
aircrafts which use without authorisation the air space of Romania: “The air space of Romania
represents the air column situated over the suzerainty territory of Romania, down to lower limit of
extra-atmospheric space.”
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Section 2: Definition of ownership
2.1. Legal definition of subjective ownership

The civil code of 2009, entered in force in 2011, provides a definition of private
ownership of explanatory nature of the notion by elements of legal contents of private
ownership meaning that: “Private ownership is the right of owner to possess, use and
dispose of something exclusively, absolutely and perpetually, within the limits of law.”
(art. 555 alin. 1 Cod civil).
On the other hand, the legal definition of public ownership of Civil Code is not
elucidative either in the definition of notion, probably due to the regime of common
law set forth by the disposals of art. 554 par. 2 Civil Code, previously mentioned,
meaning that, in terms of art. 858: “Definition of public ownership. Public property is
the ownership belonging to the state or an administrative-territorial unit on the assets
which, by their nature or in terms of law, are not of public use or interest, provided
they are acquired by one of the means stipulated by law.”
In the former Romanian Civil Law of 1864, the subjective ownership is defined by
art. 480 as follows: “The property is the right of an individual to enjoy and dispose of
something exclusively and absolutely, however, within the law limits.”
We want to emphasize that the Civil Code of Moldova Republic of 20027 (art.
500) defines the notion of subjective ownership by the elements of contents of this
right: “Article 500. Contents of ownership. (1) The owner has right of possession, use
and disposal of the asset. (2) The ownership is perpetual. (3) The ownership may be
restricted by law or the rights of a third party. (4) The right of use includes as well the
freedom of an individual to use the asset.”
Also, the French Civil Code8, with last official edition in 1816, applicable
currently in France, defines the subjective ownership at art. 544 as being the right to
enjoy and dispose of things to highest absolute level, as long as this does not entail an
exercising of ownership forbidden by law or other regulations.
Also by comparison, in the Italian civil system, the Italian Civil Code of 1942
stipulates9 similarly a definition of subjective ownership in the contents of art. 832:
“The owner is entitled to enjoy and dispose of the works completely and exclusively,
within the limits and according to the obligations set forth by the legal system.”
With respect to Spanish Civil Law and Spanish Civil Code of 1889, mainly in the
context of this conference meant to get us close and approach legal issues of common
interest, we state the general regulation and of common law with respect to the
ownership by this law system:
7
Civil Code of Moldova Republic no. 1107/2002 with the amendments and completions published until
20th March 2019, Alphabet Publishing s.r.l. Publishing House, Chisinau 2019, page 187
8
Code civil, Edition Dalloz 2012, 111-e edition, pag. 803: “La propriété est le droit de jouir et disposer
des choses de la manière la plus absolue, pourvu qu'on n'en fasse pas un usage prohibé par les lois
ou par les règlements.”
9
Codice civile spiegato Articolo per Articolo, Edizioni Giuridiche Simone, Napoli 2005, pag. 557: “Art.
832. Contenuto del diritto. Il proprietario ha diritto di godere e disporre delle cose in modo pieno ed
esclusivo, entro i limiti e con l'osservanza degli obblighi stabiliti dall'ordinamento giuridico.”
210
• Artículo 348. La propiedad es el derecho de gozar y disponer de una cosa, sin

más limitaciones que las establecidas en las leyes.
[Article 348. The property is the right to enjoy and dispose of something without
restrictions, except for those stipulated by law.]
• Artículo 350. El propietario de un terreno es dueño de su superficie y de lo que
está debajo de ella, y puede hacer en él las obras, plantaciones y excavaciones que le
convengan, salvas las servidumbres, y con sujeción a lo dispuesto en las leyes sobre
Minas y Aguas y en los reglamentos de policía.
[Article 350. The owner of a land holds its surface and underground and is
entitled to execute works, plantations and digging, on its discretion, it maintains the
easements, under the reserve of observing the disposals of laws related to mines and
waters and regulations of police.]
• Artículo 351. El tesoro oculto pertenece al dueño del terreno en que se hallare.
Sin embargo, cuando fuere hecho el descubrimiento en propiedad ajena, o del
Estado, y por casualidad, la mitad se aplicará al descubridor. Si los efectos descubiertos
fueren interesantes para las ciencias o las artes, podrá el Estado adquirirlos por su justo
precio, que se distribuirá en conformidad a lo declarado.
[Art. 351.The hidden treasury belongs to the owner of land where it is
encountered.
Despite all these, when discovered on the property of another individual or by
state and accidentally, half is awarded to the discoverer.
If the effects discovered are interesting for science or arts, the state may acquire it
on their correct rate, shared in conformity to what has been declared.]
• Artículo 352. Se entiende por tesoro, para los efectos de la ley, el depósito
oculto e ignorado de dinero, alhajas u otros objetos preciosos, cuya legítima
pertenencia no conste.
[Art. 352. By treasury, one understands, in terms of law, the hidden and unknown
deposit of money, jewellery or other precious objects, without legitimate owner.]
According to such legal texts from other Latin countries of inspiration for our
legal system, the legal definition of subjective ownership given by Romanian legislator
appears as modern and complete, in the light of such subjective right, as fundamental
human right, in terms of which, the holder is acknowledged an exercise of the right
“exclusively, absolutely and perpetually” (art. 555 par. 1 Romanian Civil Code),
obviously, within the material and legal limits set forth by law for effective exercising
of subjective right on and related to an asset, particularly a real estate.
2.2. Doctrine definition of subjective ownership

Approaching the general theory of law, where the ownership is a subjective right
and the science of law is the science of subjective rights, we define such subjective
right as being such power or possibility acknowledged by positive law to the holder or
to have a particular conduct and to impose or claim other law subjects, considering the
right of coercion of state, to have and maintain a particular conduct towards it, the
holder of subjective right, in relation with an asset, material object of the subjective
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ownership. The private ownership is included in the category of absolute real

subjective rights, opposable to all law subjects.
Actually, by defining as such the private ownership, we understand that its holder
has the possibility, understood as power of decision on its own conduct, to do or refrain
from doing, to have any conduct, exclusively, absolutely and perpetually with respect to
the asset object of ownership and to compel the other individuals to observe a general
obligation of not doing, of refraining to affect the ownership or asset subject of private
ownership, within such limits, stipulated by law, which we shall present further on.
From a civil perspective, the private ownership is defined by professor Valeriu
Stoica as “being the main real ownership offering the holder the attributes of possession,
use and disposal (jus possidendi, jus utendi, jus fruendi and jus abutendi) with respect to
the asset appropriated in private form, attribute which may be exercised absolutely,
exclusively and perpetually, with the observance of material and legal limits.”10 In a
critical light, this definition is completed by professor Corneliu Birsan11 as follows: “In
conclusion, the ownership is that subjective right which gives the expression of
appropriation of an asset, allowing the holder to possess, use and dispose of such thing,
personally and for its own interest, according to applicable legislation.”
As personal opinion, the association and definition, both by law and doctrine, of
subjective ownership with possession on the asset or thing, do not represent the most
fortunate choice since possession is and remains a state of things awarding the
possibility of acquirement of subjective ownership by usucapio not an attribute or
dismemberment of the ownership.
The ownership does not award by itself the attribute of possession, in legal terms,
but the attribute respectively the dismemberment of the use of asset. It is true that in
Romanian the notion of “possession” also means, in current language “use” or
“holding” an asset but, in legal terms, the two words represent legal notions absolutely
distinct, firstly, because one, the use, indicates a dismemberment of the subjective
ownership, as legal state referring to the world of ideas, whereas the other, the
possession, represents and is defined as a state of fact, as a connection mainly and in
majority physical, material, between a law subject and a thing.
This view of defining the subjective ownership (also) using the element of
possession represents a conceptual tributary rest of antic Romanian law according to
which the subjective ownership was defined and explained only by material holding of
the asset. In the Middle Ages, the legal philosophy, with a canonical motivation,
records a big conceptual advance by defining the subjective ownership as representing
a power, possibility of manifestation of legal will, of the holder of the right, era omnes
opposable, with respect to an asset, without any condition to hold factually the asset, to
relate to the possession in fact of such asset.
10
Valeriu Stoica, Civil Law. Main real rights I, Humanitas Publishing House, Bucharest 2004, pag.224
11
Corneliu Birsan, Civil Law. Main real rights in the regulation of new Civil COde, Hamangiu Publishing
House, Bucharest 2013, pag. 36-37
212
Michel Villey identifies in the Franciscan order and in the person and philosophy
of Guillaume d’Occam [William Ockham] (n. 1288 – m. 1348), founder of
nominalism, founder of the concept of subjective right12 as we currently understand it.
William (of) Ockham, in French Guillaume d’Occam, in the context of a religious
conflict of ideological order that discusses whether Christ was or not the owner of the
goods he used or consumed during his life, subsumed to validation or invalidation of
the Law of poverty of Christ which represents the fundamental principle of Dominican
Order, unlike the Franciscan Order which accumulated and enjoyed properties without
considering it as an ideological conflict with such law of poverty so-said to have been
preached by Jesus Christ, represents the first theory of the notion of subjective right
which it makes available to Pope Joan XXII, around the year 1332, in the defence of
Franciscan Order.
Essentially, William Ockham associates in the definition of ownership the
classical notion of right (jus) and the idea of power related to an asset. It assigns to the
notion of jus, from classical Romanian law, the signification of power, and explains
thus the right afferent to an asset as being a power of the owner with respect to such
asset. Therefore, the notion of right (jus) ceases to have the signification and be
synonym to the notion of thing, and it acquires the signification of power exercised
with respect to a thing.
In this construction, Ockham comes and distinguishes between the usufruct right
(jus utendi) and the use in fact or toleration (usus facti), concluding eventually that the
Franciscans did not contradict but followed the example of Jesus Christ with respect to
poverty by waiving the power on such thing (right of disposal – jus abutendi), in
favour of Pope, maintaining only the use of such assets (jus utendi and jus fruendi).13
Therefore, this new and explanatory conception of subjective ownership which
represents the object of the work Opus nonaginta dierum represents the answer of
William Ockham, with deep legal relevance, to theological issue previously mentioned,
answer which supports the possibility of using an asset, of collecting fruits or even
consuming it without the obligation of being the owner of it, respectively with the
consent of its owner, of the person keeping under control, in property, such asset.14
In the memory of and as a personal homage to my professor, the academician Ion
P. Filipescu, I reproduce the definition which it gives to subjective de ownership,
correctly, independently of explaining the notion of subjective ownership through the
notion of possession: „The ownership is the real right which offers the holder the right
of using the asset, according to its nature and destination in order to use it and dispose
of it, exclusively and perpetually, in terms of legal disposals.”15
12
Michel Villey, Droit subjectif I – La genese du droit subjectif chez Guillaume d’Occam, volume Seize
essais de philosophie du droit, Dalloz, Paris 1969, p. 141.
13
The theological debate generated as well, besides defining the subjective right as currently
applicable, the distinction between consumable and non-consumable goods. Distinction made by
Pope Joan XXII in the papal bull Ad conditorem cannonum.
14
Ionut Dojana, Subjective right, Universul Juridic Publishing House, Bucharest 2010, pag. 10-25
15
Academician PhD Prof. Docent Ion P. Filipescu, CivilLaw. Ownership and other real rights, Actami
Publishing House, Bucharest 1994, pag.79
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Section 3: Legal contents of the ownership
3.1. Enumeration of the elements of legal content of ownership

It may be noticed that the subjective ownership is defined differently respectively
in a certain manner from the perspective of general theory of law, as power and
expression of will of the holder of right in relation with all others law subjects and
otherwise, from the perspective of civil law, respectively by its elements of contents,
therefore, the ownership is defined by other rights resulted from absolute ownership:
1. right of use (usus or jus utendi) of the asset subject to the right
2. right to collect the fruits (fructus or jus fruendi) of such asset and
3. right of disposal (abusus sau jus abutendi) with respect to the asset subject of
the law in terms of the right of alienation or consumption of such asset.
In this respect, the majority of definitions, both legal and doctrinary, are using, as
we have seen, the expression “… to enjoy and dispose of”, to a wider or narrower
extent, in different significations of the legal notions used respectively “exclusively,
absolutely and perpetually, within the limits of law”, as it is stipulated by art. 555 par. 1
of Romanian Civil Code.
We do not continue with the analysis of such elements but we stop on enumerating
it. We outline only the fact that, according to the opinion we appropriate, possession
(jus possidendi) is not an element of legal contents of the ownership.
It must be indicated that a holder of subjective ownership, in terms of some
individual considerations (for instance, it has creditors and does not want to be subject
to real estate forced execution, therefore, it expressly waives the ownership) may
restrict its subjective ownership only on possession of the asset following to recover
the ownership of it by usucapio. In the hypothesis of the example given, we have the
disposals of art. 562 par. 2 of Romanian Civil Code.
3.2. General law of increase of subjective ownership of private property

In Romanian civil law, the notion of right of increase is related to and specific to
hereditament. Therefore, on its origin, the right of increase or the right of completion
or the right of increment represents a right of augmentation, in certain situations,
regardless if it is a testamentary or legal inheritance, of subjective ownership of a
heir/legatee pursuant to a potential failure of acceptance of joint legacy, or waiving to
inheritance by a heir or in case of declaring the indignity of a heir, etc.
This right is ruled by Civil Code of 1864 by disposals of art. 929 whereas the new
civil code of 2009 stipulated it at art. 1072 with the marginal name of „Right of
increment” and, eventually, in the version in force of Civil Code, this marginal name
no longer appears and the text of art. 1072 has the following contents: „The inefficacy
of legacy due to nullity, recall, caducity or removal for non-accomplishment of
suspensive condition or for the failure to meet the resolutive condition advantages the
heirs whose inheritance rights would have been decreased or, if any, annulled by the
214
existence of legacy or who had the obligation to execute the legacy.” which determines
the continuation of existence of such subjective ownership de lege lata.
Consequently, the legislator and the doctrine16 understood and ruled the right of
increment as a subjective ownership of a holder of rights to increase, extent the
subjective right (in the hypotheses and circumstances mentioned: inefficacy of legacy
due to nullity, annulment, caducity or termination for non-achievement of suspensive
condition or accomplishment of resolutive condition stipulated by testator, or in case of
inheritance indignity, as example).
We consider that the defining elements for the occurrence of the right of increment
are the following:
1. pre-existence of a subjective right (and in the field of inheritance, where
appeared and applied the right of increment, namely the right of inheritance and actual
vocation of a legatee or a legal heir in acquiring an asset or a share of an inheritance),
2. occurrence of an issue in fact which entails an increase, an increment of the
contents (of object) subjective own right of one or several holders of subjective rights
(on legacy or share of inheritance in question).
In our opinion and in the field of real rights, with respect to legal contents of
subjective ownership, we identify a general right of increment manifested and
acknowledged by the disposals of civil law which rule the legal institution of real estate
accession. In terms of such right of increment, as integral part of the subjective
ownership, the holder of the right has the possibility to acquire ownership on other
assets as well which lack of its ownership.
We are approaching such situation in the chapter “manners of acquiring
ownerships” without justifying, with respect to subjective rights, which is the legal
cause, the legitimacy and the ground based on which, for instance, the owner of a land
becomes also the owner of the construction built by a third party on its land (which
represents a case of artificial real accession) or the cases of natural real accession
respectively drifts, avulsion and entry of animals. Or, if we consider that the subjective
right of private property includes as well a right of increment of it, then the legal
situations defined in the notion of accession acquire moral or legal legitimacy based on
such subjective right.
The legal disposals in force support the idea of existence of a right of increment in
the field of real rights as well since, based on the same logics as in the field of
inheritance, we refer to a pre-existing subjective right (respectively the subjective right
of private property related to an asset) as well as a new issue in fact which impairs the
pre-existing right, as follows, as for instance the disposals of Art. 567 Romanian civil
code: “Acquirement of ownership by accession. By accession, the owner of an asset
becomes the owner of everything attached to the asset or incorporated therein, if law
does not stipulate otherwise.”17
16
Mihail Eliescu, Inheritance and return of it in the law of Romania Socialist Republic, Academiei
Publishing House R.S.R., Bucharest 1996, pag.279-284; Francisc Deak, Romeo Popescu, Treaty of
succession law, Vol. II- Testamentary inheritance, Universul Juridic Publishing House, Bucharest
2014, pag. 181-185
17
Similarly, see also the disposals of art. 568-572 Civil Code.
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This opinion related to the existence of a general right of increment in the field of
real rights, part of legal contents of subjective right of private property, right of
increment which sustains and explain the increase of object of a pre-existing
ownership, naturally, it is subject to critics and, just for considering the utility of the
conflict of ideas, we submit it to the debate and analysis by law specialists and even
our future reconsideration.
Section 4: Legal characters of ownership
4.1. Enumeration of legal characters of ownership

In the system of Romanian positive law, the subjective ownership of private
property is absolute, exclusive and perpetual as it results expresis verbis from the
regulations stipulated by the disposals of Art. 555 par. 1 Civil Code: “The private
property is the right of holder to possess, use and dispose of an asset exclusively,
absolutely and perpetual, within the limits set forth by law.”
By absolute ownership, one understands that the subjective ownership is the
fullest and the most complete right since it offers the holder all potential prerogatives,
comparatively to other kinds of real rights (which are dismemberments of ownership).
Despite all these, its absolute nature must not be understood as unlimited since the
norm stipulated by Art. 555 Civil code determines its limits or conditions of exercise
(…”within the limits stipulated by law.”) and the constitutional norm of Art. 44 par.1:
“Ownership. The ownership (is) guaranteed. The contents and limits (of this right) are
determined by law.” As previously seen, the French civil code stipulates as well the
absolute nature of subjective ownership in the disposals of Art. 554 whereas the Civil
Codes of Moldova Republic, Italy and Spain did not use such word.
By exclusive right, the second legal character of subjective ownership, one
understands that the holder of subjective right may exercise and only the holder is
liable and entitled to exercise alone, exclusively, all attributes of ownership18 namely
with the exclusion of the other persons respectively without being necessary, in terms
of law, of the support of the other in order to exercise the attributes of its ownership 19.
With respect to the last legal nature mentioned in the legal definition of property,
that of being perpetual, namely in the circumstance that the subjective right does not
disappear by non-use, in Romanian doctrine it is understood and explained in terms
that the subjective right lasts as long as it exists the object afferent to it, it is an
imprescriptible right, on the one hand and, on the other hand, the fact that it is a
18
Ovidiu Ungureanu, Cornelia Munteanu, Treaty of civil law. Assets. Main real rights, Hamangiu
Publishing House, Bucharest 2008, p. 164: “Judicial practice. 1. The owner is the sole entitled to
exploit the asset under any form. Exploitation of asset in the form of photos impairs the right of use of
the owner. (Court of Cassation, Civ.1e, 10 mars 1999, in H. Capitant, Fr. Terre, Y. Lequette, Les
grands arrets de la jurisprudence civile, 11e ed. Dalloz, Paris 2000, p. 327).”
19
Valeriu Stoica, Civil law. Main real rights, C.H. Beck Publishing House, Bucharest 2009, pag. 103:
“This character assimilates two ideas: the monopole of ownership of private property on the good or
and exclusion of third parties, including of public authorities, from exercising the prerogatives of
property.”
216
transmissible, assignable right, respectively it is not a lifelong right which may end
pursuant to the death of holder but an hereditary right assigned to heirs.
4.2. Personal observations related to legal characters of ownership

With respect to the exclusive nature of subjective ownership, we emphasize that,
despite the possibility created to the holder to be exercised individually and
independently of any other person the subjective ownership, the law, convention or
court judgement may however restrict the exclusive nature of ownership. This is
present and confirmed in the hypothesis of easements (positive, legal, conventional or
judicial) and mainly we consider the case of new legal institution of periodical
property, particular case in the best interest and part of the theme of this work. Equally,
the local custom (common law) may restrict the exclusive nature of ownership.
Also, with respect to perpetual nature of the subjective ownership, we must
understand it also as a continuous right, as a right existing during the entire duration of its
object, of the asset to which it relates, regardless if the asset is used or not in its materiality
by the holder of right. From this perspective, it means that the subjective ownership exists
day by day, second by second, in the patrimony of holder and the material non-use of the
asset or failure to exercise the right does not determine an interruption or discontinuity of
the subjective ownership (see art. 562 par. 1-2 Civil Code).
Section 5: Legal limits of ownership
All legislations claimed stipulate that the exercise of ownership by its owner will
be done within the limits stipulated by law. The limits of exercising the subjective
ownership are the legal limits and material limits. The legal limits rely on the legal will
of the holder of right, of the judge or legislator and, in relation with this observation,
the legal limits are: conventional limits, judicial limits or legal limits, in relation public
or private interest: Art. 602 Cod civil “(1) Law may restrict the exercise of ownership
either in public, or private interest. (2) The legal limits in private interest may be
amended or temporarily removed based on parties´ agreement. (…) si Art. 603. “The
ownership compels to observe the duties related to environment protection and
provision of good neighbourhood, as well as the observance of the other duties which,
in terms of law or customs, are incumbent upon the owner.”
The legal limitations established in private interest in the field of real estate in the
neighbourhood relations concern: (1) the obligation of holder of subjective ownership
to enclose the property (wall, ditch and common fence), (2) obligation to build a
construction or form a plantation on a certain distance from the property of the
neighbour, (3) obligation to allow the exercise of the right of way, (4) right of sight on
the property of the neighbour, (5) obligations related to the use or natural flow of
waters.
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The legal limits set forth in public interest20 may concern both real estate and
movable assets and the most severe restriction concerns the extinction of subjective
ownership by expropriation or requisition. One institutes as well the legal limits in
public interest with respect to legal circulation or even acquirement and exercising
some subjective rights with respect to some categories of goods: the weapons and
munitions, the sacred assets or those for a religious cult, the goods private property
classified as part of national cultural patrimony21 etc.
Section 6: Material limits of ownership
Currently, the Romanian positive law includes a new disposal with direct and
express reference to material limits of subjective ownership by disposals of art. 556 of
civil code of 2009: “The ownership may be exercised within the material limits of its
object. These are the corporeal limits of the asset forming the subject of ownership,
with the restrictions set forth by law.” Moreover, the Romanian legislator clearly sets
forth the fact that, with respect to the ownership on the land “(1) The property of land
extents as well on the underground and on the space over the land, according to legal
limits. (2) The owner may perform, over and under the land, all constructions,
plantations and works deemed properly, beyond the exceptions set forth by law, and
may obtain all benefits produced”, (art. 559 civil code).
For the first time in Romanian positive law, by the new Civil Code, beyond the legal
contents of subjective ownership, the legislator regulates expressly the material limits of
ownership expressing a pragmatic vision of the extent and effective material exercise of
ownership, from the centre of Earth and down to lower limit of national air space.
With respect to the subsoil, there is no legal norm which may prevent the exercise
of law to the centre of Earth but, on the contrary, this thesis is supported by the
interpretation per a contrario of the regulations mentioned concerning the mineral
resources.
With respect to the national air space which represents, according to the disposals
of art. 8 par.1 of Law no. 21/2020 related to Air Code of Romania, “the air column
situated over the territory where Romania exercises its suzerainty, down to lower limit
of extra-atmospheric space. (2) In the national air space, there is both general air
traffic, and operational air traffic” we have no information with respect to the height
where it is above ground.
The technical rules of aviation confirm however the fact that the national air
space has different minimum height points from where it is calculated, in relation with
different geographical and urban areas of Romania, therefore, the air column above
ground, entering the exclusive sphere of property of the holder of soil, has a variable
20
Academician PhD Prof. Docent Ion P. Filipescu, Civil law. Ownership and other real rights, Ed.
Actami, Bucharest 1994, pag. 78, “The limitations or restrictions of ownership have increasingly
extended, therefore, it is no longer individualist, but a social right, accomplishing a social function.”
21
For instance Law no. 182/25.10.2000 related to protection of mobile national cultural patrimony,
republished,
218
size, from case to case. Such exercise of the right, per height, is in the area of material
exercise of the right in relation to current technical possibilities of holder.
Section 7: Right of hunting and joint right of grazing – legal limit or a

discontinuity from perpetual and continuous nature of subjective
ownership?!
7.1. Hunting right on the land of a third party

The hunting may be also performed on the lands of other persons than those of the
hunter or of the organiser of hunting in terms of a right (of an administrative
authorisation) of hunting independent of any agreement or permission of the holder of
land. Naturally, there are typical situations when the land belongs to the hunter or
organiser of hunting, or belongs to the state and it has conceded the hunting right or
when the holder of land has given expressly the consent for the inclusion of land in a
hunting fund (cynegetic fund22). The hypothesis refers to the situation where there is a
clear dichotomy between the hunter or the organiser of hunting and the holder of
ownership of the land. The hunting is carried out under legal conditions, based on
administrative authorisation but it does not concern the stationary game or crossing the
land belonging to another person.
In terms of hunting right, its owner may enter, cross or stay on the land which
does not belong to it, may hunt wild animals on it. This means an impairment of
ownership of the land which we have agreed that it has a perpetual and continuous
nature regardless if the owner exercises or not the effective material use over it.
We are in a situation of collision of two rights: private ownership over an outside
built-up area of land and hunting right of third parties over the same land, two distinctive
subjective rights, on the same material object, belonging to different holders.
7.2. Joint right of grazing, a Dambovita custom

In Muntenia and mainly in Sub-Carpathian area, there is a custom of the place,
verified as being valid and applicable and present in the counties Dambovita, Arges,
Valcea, based on which, between October (from Good Friday, Saint Paraschiva, since
14th October) and until April (23rd April of Saint Gheorghe) any priest, any owner of
animals has pasture right on all or any of the unsurrounded lands of other owners from
the community. In such situation, the domestic animals cannot be acquired by the
22
Art. 1 lit.j) and n) of Law of hunting and protection of cynegetic fund no. 407/2006: “In terms of this
law, the terms and expression below are defined as follows: (j) hunting fund – unit of cynegetic
management constituted regardless the category of land, regardless the owner and delimited as such
so as to provide stability to fauna of cynegetic interest in its interior; (n) cynegetic fund - unit of
cynegetic management constituted of the fauna of cynegetic interest and land area, regardless its
category, regardless the owner (…)”
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Conference Paper
holder of land according art. 576 Civil Code23, as being said in this area: “cannot be
taken to stockyard”.
This grazing right is a common law right exercised temporarily and periodically, a
rest of the former and medieval joint right on the lands and currently in the villages
from Walachia.
7.3. Legal qualification of the two rights

In the two examples mentioned, we notice the presence and collision of two
distinct subjective rights concerning the same material object belonging to another
legal holder: the hunting right respectively the right of grazing, on the one hand and, on
the other hand, the subjective ownership on the land on the surface of which the
hunting or grazing is performed and we wonder:
1. is there a legal limit for exercising the subjective ownership?!
2. or, in the context of regulation of subjective periodical ownership, is there a
discontinuity of the subjective ownership?!
3. or we may consider that there is no collision of rights but an overlapping of it,
from another perspective?!
In this context, we are taking steps for the innovative regulation of periodical
property by the new Romanian Civil Code24 in relation to which we must determine
the compatibility of such legal institutions with the classical principles of Romanian
law and mainly with the exclusive nature of subjective ownership according to which
the holder of the right exercises individually all prerogatives of ownership, with the
exclusion and without the support of other persons.
This legal institution is mentioned, with respect to the explanation of exclusive
nature of subjective ownership, since 1994 by the professor Filipescu: “… the
compared right shows us that there is a new version of the ownership consisting in that
some premises for secondary residences may belong to several persons with successive
use, on definite terms, resulting from their capacity of owner.”25
The easiest explanation of the two rights claimed in this section is that they
represent only some limits of an ownership in consideration of social nature of the
right, in general, of the fact that it meets a social function. Despite all these, if we
consider the current real estates, properties of hundreds or thousands of hectares of
land, the failure to exercise the hunting right by the owner of land with respect to the
23
Art. 576. Natural accession related to animals. (1) The domestic animals wondering on the land of a
third party belong to the latter if the owner fails to claim it within 30 days as of the date of declaration
submitted to town hall by the owner of the land. (2) The doves, rabbits, fish and other similar animals
passing to the land of another owner belong to it as long as they remain on the land, except for the
case when passing was caused by fraud or artificially. (3) The hive of bees passing on the land of
another belong to the owner of the latter if the owner of hive does not follow it or ceases to follow it for
two days.
24
Art. 687. Periodical property. “The disposals of this chapter are enforced in absence of a special
regulation, every time several persons exercise successively and repetitively the specific attribute of
use of ownership afferent to a movable or immovable asset, within definite, equal or unequal intervals
of time”.
25
Academician PhD Prof. Docent Ion P. Filipescu, Civil Law. Ownership and other real rights, Actami
Publishing House, Bucharest 1994, pag. 78
220
game or, moreover, acknowledgment in the person of third parties of such right appears
as illegitimate and highly contrary to absolute and exclusive nature of ownership.
Factually, we have an overlapping of rights on the same object which, during different
periods of time, was in the use of two different owners.
At the same time, the periodical ownership seems to change fundamentally the
object of subjective right which is no longer the asset to which it refers the right but the
right to exercise the use, as we identify in case of Dambovita custom.
In this context, we ask the question, for debate, if the object of right does not
become the time when an asset is under the material use of a holder or other, if there is
a restriction of the absolute and exclusive ownership and of impairment of its perpetual
and continuous nature, under temporary discontinuity.
Bibliography:
1. Valeriu Stoica, Civil Law. Main real rights I, Humanitas Publishing House, Bucharest
2004.
2. Corneliu Birsan, Civil Law. Main real rights in the regulation of new Civil Code,
Hamangiu Publishing House, Bucharest 2013.
3. Michel Villey, Droit subjectif I – La genese du droit subjectif chez Guillaume d’Occam,
volume Seize essais de philosophie du droit, Dalloz, Paris 1969.
4. Ionut Dojana, Subjective right, Universul Juridic Publishing House, Bucharest 2010.
5. Ion P. Filipescu, CivilLaw. Ownership and other real rights, Actami Publishing House,
Bucharest 1994.
6. Mihail Eliescu, Inheritance and return of it in the law of Romania Socialist Republic,
Academiei Publishing House R.S.R., Bucharest 1996.
7. Francisc Deak, Romeo Popescu, Treaty of succession law, Vol. II- Testamentary
inheritance, Universul Juridic Publishing House, Bucharest 2014.
8. Ovidiu Ungureanu, Cornelia Munteanu, Treaty of civil law. Assets. Main real rights,
Hamangiu Publishing House, Bucharest 2008.
9. Valeriu Stoica, Civil law. Main real rights, C.H. Beck Publishing House, Bucharest
2009.
221
Conference Paper
ENVIRONMENTAL POLICY - LEGAL FRAMEWORK

AND GENERAL PRINCIPLES
Beatrice DRĂGHICIU*
Abstract: Environmental protection is a responsibility that must be assumed by society as

a whole. Given the recent level of ecological deterioration, the degree of involvement and
responsibility of actors, both national and international, should be as high as possible. Although
the somewhat "subsidiary" nature of Community environmental policy cannot be denied in
relation to other "major" policies, the protection feature is obvious, which gives the importance
that such a policy demands. Initially, Community environmental policies had their own
environmental justification, without being subordinated to the objectives of the internal market.
A considerable change in policy approach has been reflected over time, with subsequent
programs, starting with the third MAP, being much more closely linked to the completion of the
internal market than previous ones. The year 1987 was perceived as a turning point in
Community environmental policy, with environmental protection receiving its own chapter in
the Single European Act. Environmental policy was considered a Community policy by the
Maastricht Treaty, and sustainable development was strengthened as a Community objective by
the Treaty of Amsterdam. Thus, environmental policy and sustainable development have become
key elements of strategic documents.
Keywords: environmental policy, strategy, environmental protection, priority
Introduction
Environmental concern appeared on the European agenda in the early 1970. The
European Union's environmental policy was created by the Treaty establishing the
European Community and aims to ensure the sustainability of environmental protection
measures. Through the Maastricht Treaty, environmental protection becomes a key
priority of the European Union, where the need to integrate and implement
environmental policy in sectoral policies such as agriculture, energy, industry, transport
is signaled. The main pillar of environmental policy is the concept of sustainable
development, which is a cross-cutting policy that encompasses all other Community
policies, emphasizing the need to integrate environmental protection requirements into
the definition and implementation of all European policies1.
In this context, the European Union has demonstrated, through the promotion of
sustainable development worldwide, a strong determination with regard to
environmental protection measures. This concept of sustainable development involves
the implementation of mechanisms and policies that allow both economic development
and environmental conservation, while capturing both increasing responsibility and
* PhD, Ministry of Justice, Romania.

1
European Union Policy Guide - no.4, Environmental Policy, Bucharest, p. 7, viewed online:
http://ier.gov.ro/wp-content/uploads/publicatii/politica_de_mediu_brosura_nr.4_.pdf
222
increasing economic efficiency in order to minimize the costs of reducing

environmental damage due to human consumption. The European Union's policy in
this field has gradually evolved, from the stage of implementing minimum
environmental protection measures, to an increased commitment to environmental
issues through complex and specific solutions2.
Increasingly comprehensive and closely linked to other European Community
policies, EU environmental policy is turning the Union into a global promoter of
sustainable development.
1. Important Moments in Environmental Policy
• 1972 - The United Nations Conference, which emphasized the importance of

society's "limits to development", was the starting point for environmental policy for
the European Union, with the first steps taken to initiate a coherent environmental
policy being taken through the Commission. Therefore, through the 6 Environmental
Action Programs (MAPs) a unitary framework for environmental policy has been
outlined;
• 1986 - The Single European Act, which entered into force in 1987. Through the
chapter on environmental protection in the Treaty establishing the European
Community, the year 1987 as a turning point in environmental policy, environmental
protection acquiring a legal basis3;
• 1990 - the European Environment Agency and the European Environment
Information and Observation Network are established;
• 1992 - by signing the Treaty on European Union in Maastricht, which entered
into force in 1993, the European Parliament was given a greater role by introducing the
co-decision procedure - "environmental protection regulations must be integrated into
Community policies, this being a sine qua non condition in terms of sustainable
environmental development '4;
• 1997 - The Treaty of Amsterdam, which entered into force in 1999, introduces
the concept of sustainable development, thus becoming a principle but also an
important objective of the Community;
• 2009 - combating climate change becomes, at Union level (at European level),
one of the main objectives, with the signing of the Lisbon Treaty. Environmental
protection continues to be an area of competence shared between the Member States
and the Union. Thus, in this field, the European Union's intervention must pursue clear
objectives, namely: conservation, protection and improvement of the quality of the
2
Idem.
3
Single Euroepan Act (1986), published in the Official Journal L 169 of June 1987, excer pted
from: www.eur-lex.europa.eu., viewed online: http://ier.gov.ro/wpcontent/uploads/publicatii/
politica_de_mediu_brosura_nr.4_.pdf
4
Treaty on European Union (1992), material available online at: www.eur-lex.europa.eu .
223
Conference Paper
environment, protection of health, promotion of rational use of resources and

promotion of measures to combat environmental problems5;
• 2009 - UN Summit in Copenhagen - the Copenhagen Agreement on Climate
Change was signed;
• 2010 - Europe 2020 Strategy (focused on sustainable growth based on
environmental protection, protection of biodiversity, "green technologies" and goal
setting) and the UN Summit in Cancun (which set global warming below 2 ° C,
reducing greenhouse gas emissions, the realization of the Green Climate Fund to
support developing countries).
European environmental policy currently focuses on the principles of precaution,
prevention, correction, pollution at source and "the polluter pays". Multiannual
environmental action programs set the framework for future action in all areas of
environmental policy. They are integrated into horizontal strategies and are taken into
account in international environmental negotiations. Last but not least, implementation
is the key6.
2. Legal ground
From a legal perspective, the Treaty of the European Community, respectively

articles 174-176 and art. 2, 6 and 95 are the basis for environmental policy, with the
European Union having the power to act in all areas of environmental policy, namely
air and water pollution, waste management and climate change. However, this
competence is limited by the principle of subsidiarity and by the requirement of
humanity in the Council in terms of fiscal matters, land use planning, land use,
quantitative management of water resources, choice of energy sources and energy
supply structure7.
Article 174 (eg. Article 130r Paragraph 2 TEC) emphasizes that environmental
protection in the Community is based on the principles of precaution, prevention,
"polluter pays" and pollution reduction, and Article 175 sets out the decision-making
process on environmental policy and clarifies the responsibilities of each European
institution that addresses environmental issues.
Member States must, in accordance with Article 176, adopt "more stringent
protective measures", but only with the condition to be compatible with the text of the
Treaty and to inform the Commission about them. Article 6 (3c) of the Treaty
explicitly regulates the need to integrate environmental protection into the definition
and implementation of all other Community policies; Article 2 TEC being postulated
as a model of European development, supporting "sustainable and non-inflationary
development, a high degree of competitiveness and convergence of economic
5
Lisbon Treaty amending the Treaty on European Union and the Treaty establishing the European
Community, material viewed online at: www.eur-lex.europa.eu
6
Christian Kurrer, EU fact sheets, viewed online: https://www.europarl.europa.eu/thinktank/en/
document.html?reference=04A_FT%282017%29N54605.
7
Idem.
224
performance, a high level of protection and improvement of the quality of the

environment".
Regarding the legal framework of environmental policy, it is important to
recall the Single European Act (EEA) which in 1987 introduced a new chapter
"Environment" (Title VII) in the Treaty establishing the European Community. For
the first time, the principle of subsidiarity is referred to in the AUE, also
introducing Council Cooperation with the European Parliament on environmental
decisions. The 1997 Amsterdam Treaty strengthens the EU's environmental policy.
The changes in the Preamble and Article 2 reinforce the principle of sustainable
development. With regard to the 2009 Lisbon Treaty, it gives legal force to the
Charter of Fundamental Rights of the European Union. The Charter recognizes the
rights, freedoms and principles that apply to the European Institutions and the
Member States when implementing European law. In the field of environment, the
Charter includes Article 37 on Environmental Protection which states that "Union
policies shall provide for a high level of environmental protection and the
improvement of its quality, which shall be ensured in accordance with the principle
of sustainable development"8.
Here we can add the decisions, regulations or directives in the field of
environment that represent sectoral and horizontal legislation, the European Union
adopting since 1972, numerous legislative acts focused on limiting pollution by
introducing standards, especially for waste management, water pollution and air
pollution.
Regarding the horizontal legislation, it does not sum up simple legislative acts
with the role only to regulate a certain specific area, but it sums up procedural
legislative acts, providing both methods and mechanisms by which the decision-
making system can be improved, but also the processes of elaboration and
implementation of legislation in the field. Horizontal legislation includes regulations
that ensure transparency and circulation of information, public access to information,
facilitate the decision-making process, but also boost the process of strategic
environmental protection assessment.
Environmental policy is divided into several sectors that are subject to vertical
(sectoral) legislation. Regulations on environmental sectors vary, so we can say that
there are several environmental policies: air pollution, biotechnology, chemicals,
environmental economics, industry and technology, international environmental issues,
soil exploitation and conservation, nature conservation and biodiversity, noise
pollution, sustainable development, waste management, water and marine pollution.
Strategies and action plans are developed for each of these sectors with the general aim
of improving the quality of the environment and life by creating sustainable
communities capable of managing and using resources efficiently9.
In Romania, the legislative basis of environmental policy is represented by the
implementation of the environmental acquis, the horizontal and sectoral legislation
8
Charter of Fundamental Rights of the European Union, Article 37, (2007 / C / 303/01). Excerpt from
www.eurlex.europa.eu/en/treaties, in European Union Policy Guide no. 4 - Environmental policy, p. 11.
9
European Union Policy Guide, Brochure no. 4, Environmental Police, p. 11.
225
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governing the environmental policy of the European Union. Sectoral environmental

acquis structured on areas such as air quality, waste management, water quality, nature
protection, industrial pollution control and risk management, chemicals and genetically
modified organisms, noise pollution, civil protection and nuclear safety. The
particularity of the transposition of the sectorial legislation is represented by the
request of Romania, of 11 transition periods, with durations between 3 and 15 years
and necessary as a result of the evaluation of the high costs that it implies, as follows: a
transition period in the field of air quality; 3 on waste management, 4 on water quality
and 3 on industrial pollution and risk management.
3. General principles
Article 174 of the Treaty establishing the European Community sets out the
following as objectives of European environmental policy:
a) conservation, protection and improvement of the quality of the environment;
b) protection of human health;
c) prudent and rational use of human resources;
d) promotion of measures at national level, in order to address regional
environmental issues and not only.
In order to raise awareness of the transboundary nature of environmental issues,
the representatives of the Member States of the Community laid the foundations for a
common environmental policy at the 1972 Paris Summit. In 1973, the Commission
launched a first European Environment Action Program, in which the principles of
environmental policy were in force, in force even today - the polluter pays principle,
preventive action and precaution; subsequently being added the principle of
integration, proximity, as well as the principle of high environmental protection.
Precautionary principle - a risk management tool that can be invoked when there is
a scientific uncertainty about a possible risk to human health or the environment,
arising from a particular action or policy10. This principle involves avoiding risks to the
extent that there is a threat to public health or the quality of the environment.
According to him, it is recommended to move the measures to remove the threats,
despite the lack of sufficient data to support the seriousness or imminence of this
threat; which leads to the idea that the decision not to intervene must be taken when
there are clear / precise analyzes or studies that show the absence of a major risk.
The 'polluter pays' principle - implemented by Directive 2004/35 / EC of the
European Parliament and of the Council of 21 April 2004 on environmental liability in
relation to the prevention and remedying of environmental damage, which governs the
prevention or remedying of environmental damage environment11.
Operators carrying out certain professional activities, such as the transport of
dangerous substances or activities involving discharges into water, must take
precautionary measures in the event of an imminent threat to the environment. If
10
Christian Kurrer, Ibidem p. 2.
11
https://eur-lex.europa.eu/legal-content/ro/ALL/?uri=CELEX:32004L0035
226
damage has already occurred, operators are obliged to take appropriate measures to
remedy it and to bear the related costs. The scope of the Directive has been extended
three times to include the management of extractive waste, the operation of geological
storage sites and the safety of offshore oil and gas activities, respectively12.
At the same time, this principle provides for the expenses to be borne by the
polluter, repairing the damages caused in case of environmental pollution, thus pursuing
the responsibility of those who violated the rules. It has a coercive character, meant to
discourage such behaviors manifested by non-compliance with environmental legislation.
Following the Cardiff European Council initiative (1998), the integration of
environmental concerns into other EU policy areas has become an important concept in
European policies. Significant progress has been made in areas such as energy policy, as
reflected in the parallel development of the European Union's energy / climate package or
in the roadmap for moving to a competitive low-carbon economy by 205013.
The principle of preventive action - is based on the rule that it is better to prevent
than to combat.
The principle of high environmental protection - which involves setting high
standards of environmental protection and putting environmental issues at the forefront
of EU policies14.
The principle of integration - emphasizes the need to formulate other Community
policies in compliance with environmental protection requirements, so that the Union's
action on the environment is coherent and effective.
Proximity principle - mentioned in Directive 2008/98 / EC of the European
Parliament and of the Council of 19 November 2008 on waste and repealing certain
Directives, the purpose of which is to ensure the disposal and treatment of waste in
appropriate facilities in the immediate vicinity of producers waste in order to ensure a
high level of protection of the environment and public health.
Conclusions
In nowadays society, the need for reconciliation between economic and social
development, on the one hand, and environmental protection, on the other, is increasingly
felt; promoting sustainable development, which integrates economic growth, improving
the quality of life, health, education, social development and environmental protection.
Environmental issues are particularly complex, with interdependent causes requiring
action at all levels: local, national and regional authorities, as well as the European Union,
each playing its own role in increasing responsibility for environmental protection.
It is widely accepted that in order to achieve successful results, the integrated approach
must be used to manage the environment, through the adoption of long-term strategies and
action plans. This involves a detailed analysis of the links between different policies and
responsibilities, including the links between different administrative levels.
12
Christian Kurrer, Ibidem.
13
Idem.
14
Idem.
227
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Environmental policies, by ensuring an environment in which the level of

pollution does not generate harmful effects on human health and the environment,
propose an integrated approach that contributes to a higher level of quality of life and
social welfare of citizens.
At the same time, integrated approaches to environmental protection lead to better
planning and significant results. Thus, it is necessary to orient the solutions towards the
future, incorporating aspects related to risk prevention, such as anticipating climate
change or progressively reducing the dependence on fossil fuels.
Obligations imposed either at local, regional, national or European level (eg efficient
land use, noise reduction, air quality increase) can be implemented more efficiently at
local level when are integrated into a local management framework strategic.
We believe that the clear definition of objectives and targets, the assumption of
responsibilities, the procedures for monitoring progress, the verification of results and
reporting are crucial for the effective implementation of environmental policies.
Bibliography:
I. Treaties, Courses, Monographs
1. Diaconu Nicoleta, European Union Law - European Union Policies, Universul Juridic
2. Duţu Mircea, Public Environmental Policies, Universul Juridic Publishing House,
Bucharest, 2012.
3. Petrescu Mag Ruxandra-Mădălina, Environmental protection in the context of
sustainable development. Legislation and institutions, Bioflux Publishing House, Cluj-
Napoca, 2011.
II. Legislation
1. Single European Act (1986), published in the Official Journal L 169 of June 1987
2. Charter of Fundamental Rights of the European Union
3. European Union Policy Guide - no. 4, Environmental Policy, Bucharest
4. Treaty of Amsterdam published in Official Journal C 340 of 10 November 1997
5. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing
the European Community, 13 December 2007, published in Official Journal C 306 of 17
December 2007, Lisbon
6. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing
the European Community
7. Treaty on the Functioning of the European Union (TFEU), consolidated version, OJ C
326, 26 October 2012
8. Treaty on European Union (1992), published in Official Journal C 191 of 29 July 1992
III. Websites
1. www.eur-lex.europa.eu
2. https://www.europarl.europa.eu/thinktank/ro/document.html?reference=04A_FT%28201
7%29N54605
228
REPAIR OF CONTRACTUAL DAMAGE RESULTING

FROM LOSS OF OPPORTUNITY
Raluca-Clarisa GLIGOR*
Abstract: The paper aims to analyze the damage caused by losing a chance, which consists
of losing a person's ability to make a profit or avoid a loss1, a possibility which the creditor is
deprived of by the non-execution of the obligation by the debtor. As reparation for the loss of a
chance has given rise to controversy in both legal and judicial practice, the purpose of this article
is to identify the conditions under which this type of damage may arise and the rules on
compensation. In this paper, we will see that the reality and seriousness of the chance have an
essential contribution in terms of confirming the certainty of obtaining the advantage2.
Keywords: wrongful act, certain damage, damage resulting from the loss of a chance.
1. Conditions for repairing the contractual damage.

The requirement of certainty
According to the provisions of art. 1350 para. (2) of the Civil Code, "any person
must perform the obligations he has contracted" . According to para. (2) of the same
article, "when, without justification, he does not fulfill this duty, he is liable for the
damage caused to the other party and is obliged to repair this damage, under the law".
The conditions regarding the repair of the damage are found regulated in art. 1530 and
next of the Civil Code, within the section dedicated to the execution by the equivalent
of the obligations. According to art. 1530 of the Civil Code, "the creditor has the right
to damages for the damage caused by the debtor and which is the direct and necessary
consequence of non-execution without justification or, as the case may be, guilty of an
obligation". Under the majority opinion, by prejudice, we mean the harmful result, of
patrimonial or non-patrimonial nature, a consequence of non-execution, improper
execution, or with the delay of the obligations assumed by a contract.3 The claim for
damages is essential for incurring liability.
* PhD student teaching assistant, "1 Decembrie 1918" University of Alba Iulia, Faculty of Law and Social
Sciences Romania, gligorralucaclarisa@gmail.com.
1
Ioan Adam, Civil law treaty. Obligations. Volume I. The contract , C. H. Beck Publishing House ,
Bucharest, 2017, p. 969 apud Liviu Pop, Ionuţ-Florin Popa, Stelian Ioan Vidu, Elementary civil law
treaty. Obligations, Universul juridic Publishing House, Bucharest, 2012, p. 416.
2
Monna-Lisa Belu Magdo,Contractual civil liability in the new Civil Code, Hamangiu Publishing House,
Bucharest , 2017, p. 208.
3
Liviu Pop, Ionuţ -Florin Popa, Stelian Ioan Vidu, Civil Law. Obligations. 2nd Edition, revised and added,
Publishing House Universul juridic, Bucharest, 2020, p. 256; Gabriel Boroi, Carla Alexandra
Anghelescu, Bogdan Nazat, Ioana Nicolae, Civil law files, 4th edition, revised and added, Publishing
House Hamangiu, Bucharest, 2019, p. 540; Ion Dogaru, Pompil Drăghici, Civil Law. The general
theory of obligations 2nd Edition, Publishing House C. H. Beck, Bucharest, 2014, p.583; Monna - Lisa
Belu Magdo, op. cit., p.198; Gabriel Boroi, Liviu Stănciulescu, Civil Law Institutions, Hamangiu
Publishing House, Bucharest, 2012, p. 189 and next.; Jaques Flour, Jean-Luc Aubert, Éric Savaux,
Droit civil. Les obligations. 3. Le rapport dóbligation, Sirey, 2015, p. 227; Philippe Malaurie, Laurent
Aynès, Philippe Stoffel-Munck, Droit des obligations, LGDJ, Paris, 2015, p. 520.
229
Conference Paper
It follows from the legal provisions that certain, direct, foreseeable, personal
damages and damages that are the result of the debtor's activity are subject to
reparation. Are certain the prejudices whose existence is certain and there is no doubt
as to whether they can be established and assessed. According to art. 1532 para. (1) of
the Civil Code, when establishing the damages, the future damages are taken into
account, when they are certain. It is subject to repair and future damage which,
although it has not yet occurred, is certain to occur, there are sufficient elements to
certify this. For example, the injury suffered by the victim of an accident who remains
permanently incapacitated for work is certain even if most of the consequences will
occur in the future. Compensation may also be granted if the victim of the injury is a
minor who is not employed precisely because he or she will no longer be able to
exercise his or her right to work as he or she is effectively unable to do so, as a result of
the damage suffered. In this sense, art. 1389 of the Civil Code, expressly provides for
the possibility of the minor to receive compensation from the date on which, normally,
he would have finished the professional training he received. If the minor obtained an
income at the time of the injury, the compensation will be established on the basis of
the gain he was deprived of according to the provisions of art. 1388 of the Civil Code,
regarding the establishment of the loss and non-realization of the gain from work.
Certainty refers to both the existence of the damage and its extent because, if there
are uncertainties about the existence of the damage, we will not be able to know if the
right to redress was born, and if these uncertainties looms over the extent of the damage,
it will not be possible to determine the claim value to be claimed. Finally, the current
damages are certain, ie those damages that occurred up to the date on which their repair is
requested, and the future damages that are known with certainty to occur4.
2. Repair of the damage caused by losing a chance
Located at the "end of the road between purely contingent damages and perfectly
certain or certain damages”5, The Civil Code recognizes the possibility of repairing the
damage caused by losing a chance. According to the provisions of art. 1532 paragraph (2)
of the Civil Code, "the damage that would have been caused by the loss of a chance to
obtain an advantage can be repaired in proportion to the probability of obtaining the
advantage, taking into account the circumstances and the concrete situation of the creditor".
,, The damage, the amount of which cannot be determined with certainty, shall be
determined by the court. " (art. 1532 para. (3) Civil code). Provisions regarding the extent
of the repair can also be found in art. 1385 C. civ. According to para. (1) of this art., the
damage shall be fully repaired unless otherwise provided by law. According to para. (3), the
compensation must include the loss suffered by the injured party, the gain that he could
have made under normal conditions and which he was deprived of, as well as the expenses
4
Florin I. Mangu, Civil liability. Civil liability constants, Universul juridic Publishing House, Bucharest,
2014, p. 149. Ioan Adam, op. cit., pp. 967-968.
5
Monna-Lisa Belu Magdo, op. cit., p. 206 apud Liviu Pop, Ionuţ-Florin Popa, Stelian Ioan Vidu,
Elementary civil law treaty. Obligations, Universul juridic Publishing House, Bucharest, 2012, p. 333.
230
he incurred to avoid or limit the damage. Also, according to par. (4), the damage resulting
from the loss of a chance is also repairable. It was noted that the damage resulting from the
loss of a chance can be repaired both in the contractual and tort form 6.
By chance, the legislator refers to the possibility of capitalization of a right by the
creditor, a possibility which is deprived by the fact of non-execution of the obligation by
the debtor. We must not confuse the chance with the simple hope because the chance is
based on objective criteria that increase the possibility of success of the individual. The
loss of a chance can have a direct and certain character whenever the disappearance of
the real possibility proves, as an event recognized as favorable to lead to the realization of
this chance.7 So, the damage is certain when its existence is certain when it can be
determined at present. The fact that a person is deprived of a real and serious chance of
achieving the proposed objectives, entitles him to asks the one who is guilty of losing that
chance to repair the damage thus caused. The term chance must be interpreted in the
sense of opportunity, the possibility of a person to register an economic or personal
satisfaction, from which he is deprived by the prejudicial deed. We are in the presence of
reparable damage whenever the loss of a chance is due to the illicit conduct of a person.
This element of novelty, namely the reparation of the damage resulting from the loss
of a chance, taken from our Civil Code from the French model, is a sensitive one and
requires a thorough analysis as the victim will be the one to prove the loss of that chance
or possible advantage, due to the debtor's wrongful act. In this sense, we can consider the
loss of the chance to obtain a profit from the resale of the good subject to purchase, this if
we refer especially to the quality of distributor on a relevant market. Also, the loss of the
client's chance to win the lawsuit as a result of the lawyer's failure to appear at the trial
and the failure to submit written conclusions, which leads to the loss of the trial8, the
impossibility of a person to take an exam on which his future depends from a
professional point of view, due to the fact that he is the victim of a personal injury, etc.
3. Conditions for repairing the damage caused

by losing a chance and evaluation criteria
The damage resulting from the loss of a chance is frequently encountered, but, in
order to be repaired, it is necessary that the lost chance be real, and not hypothetical, an
aspect that inevitably results from the certain nature of the damage. 1532 C. civ.
Therefore, considering the loss of a chance between a present injury and possible
damage, not to be the subject of a repair, if the chance really exists, then its loss is
certain to damage, therefore repairable, whose extent varies depending on the
probability of occurrence of the favorable event. The real nature of the change results
from the factual circumstances leading to the idea that the injured party was about to
benefit from that opportunity9. At the limit between the present damage and the
6
Ioan Adam op. cit. p. 971 apud G. Viney, P. Jourdain, op. cit. p. 79.
7
Monna-Lisa Belu Magdo, op. cit., p. 207 apud Cass. crim., 23th February 1977, in Bull.crim. nr. 73, p. 169.
8
Bazil Oglindă ,The general theory of obligations , Universul juridic Publishing House, Bucharest, 2017, p. 288.
9
Bazil Oglindă, Eugen Sârbu, Injury resulting from loss of opportunity, in the Journal of Notes and Legal
Studies, 2016.
231
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eventual, irreparable one, it will be considered a real loss of a chance to win, the delay
of the racehorse carrier, thus prevented from running and bringing a prize to the owner.
The example captures the difference between the future and the eventual damage, the
realization of the chance in this situation being not certain but only probable, regardless
of the indisputable qualities of the horse10.
This example draws attention the favorable event must therefore exist, the
disappearance of the favorable event must be real and the damage can be presumed. to the
need to correctly determine both the damage and its amount11. The favorable event must
therefore exist, the disappearance of the favorable event must be real and the damage can
be presumed. The victim of the damage must have been in such a situation as to indicate
that he was indeed deprived of the chance due to the occurrence of the harmful event.
It has also been shown that the lost opportunity must be serious and not insignificant
so that the probability of determining the favorable event is sufficiently clear.12 The one
who lost the chance must have had the certainty that, in the absence of the event that led
to the loss of the chance, he would have really acquired a certain advantage, the
opportunity would have materialized. If these conditions are not met, then we will not be
able to talk about repairable damage. It is very important that this type of damage can be
compensated as we are talking about a disadvantageous situation created for the creditor
by losing an opportunity. It is also necessary to have a causal link between the act and the
damage, from which it can be inferred that the wrongful act led to the victim's inability to
obtain the advantage or to avoid damage. After all, it is not about a quantifiable result but
about the impossibility of the victim to bear fruit in a probable event13.
It is necessary to have a sufficiently strong probability to indicate the realization of
the favorable event. In this context, we specify that the loss of opportunity is
distinguished from the unrealized benefit that would have been obtained with certainty if
the harmful event had not occurred. Chance, in the explanatory dictionary of the
Romanian language, is defined as that favorable circumstance, the possibility of success,
success, luck. It is an opportunity that can mark the existence of any individual, but the
loss of opportunity takes shape in the legal field only when, through the fault of one
person, another is deprived of the possibility of a favorable event or avoid a loss. The
assessment of this damage is made by reference to the final damage, when the victim did
not obtain the advantage he could have obtained, due to the fault of the one who
intervenes and interrupts the victim's path to capitalize on the chance. In a case 14, X was
obliged to pay a sum of money to Y as compensation for the damage caused as a result of
losing a chance to take up a post by his professional training.
Finally, the court will assess, to each case, that a certain event led to the loss of a real
and serious chance of the victim of the wrongful act, as well as the extent damages to be
10
F.-A. Baiaş, E. Chelaru, R. Constantinovici, Ioan Macovei, The New Civil Code. Comment on articles ,
C. H. Beck Publishing House, Bucharest, 2012, p. 1249 apud L. Pop, Elementary civil law treaty.
Obligations , Vol. II. The Contract, Universul Juridic Publishing House, Bucharest, 2009, p. 655.
11
Philippe Le Tourneau, Droit de la responsabilité et des contrats. Régimes d'indemnisation, Dalloz,
2015, p. 505 and next
12
Ioan Adam, op. cit., p. 971 apud S. Neculaescu, Sources of obligations in the Civil Code , op. cit., p. 757.
13
Paul Vasilescu, Civil Law.Obligations, Hamangiu Publishing House , 2021, pp. 579-580.
14
To be seen https://www.clujust.ro//motivation-compensation-for-repairing-damages-caused-as-a-loss-
of-a-chance , website accessed in 15.02.2021, time 18:36.
232
awarded15. In this sense, the judge must analyze according to the moment when the victim
actually tries his chance. If the wrongful act occurs at a later time, after the person who
claims to have lost the opportunity, has taken steps to achieve success, the perpetrator's
activity may be considered likely to prevent the achievement of the opportunity. However,
if the perpetrator's activity occurs before the person in any way seizes his chance, then it
can be assumed that the person claiming to have lost that chance, in fact, was neither able
nor close to a favorable situation to produce the advantage.16
In French law, the recognition of the loss of a chance as reparable damage dates
back to 1889 when the Court first recognized the reparable nature of the loss of a
chance. In this case, the right to compensation of the client who lost the chance to win
the trial through the fault of a ministerial officer was recognized. After , loss of
opportunity was consistently recognized as a reparable injury 17.
When determining the extent of damages awarded to cover the damage resulting
from a probability, which is, in our opinion, indisputable, the court will take into
account several benchmarks according to which it will assess it. A first aspect concerns
the engagement of the victim in the realization of the chance, ie, for example, starting
from the fact that a lawsuit is never lost from the beginning before the court, any
culpable activity that results in preventing the litigant from improving his condition or
even if the case is won, it may entail the obligation of the guilty party to pay damages.
Thus, the lawyer who is found guilty will be able to be obliged to pay compensations,
and compared to their amount, it will be assessed in proportion to the chance of
winning. Another situation is that in which the victim is not actually involved in the
realization of the chance, the loss of the chance being seen as a future possibility. For
example, claiming compensation for damage caused by the loss of a chance to obtain a
maintenance pension without the applicant fulfilling the conditions necessary to obtain
that pension cannot be accepted18.
The method of calculating the damages awarded based on losing a chance is
indicated by the legislator in art. 1532 in. (2) of the Civil Code, according to which "the
damage that would have caused by losing a chance to obtain an advantage can be
repaired in proportion to the probability of obtaining the advantage, taking into account
the circumstances and the concrete situation of the creditor". In the presence of damage
distinct from the final damage, the compensations will represent only a part of the fine
damage assessment19. Besides, it is natural that the reparation of this damage be reduced
by comparison with what the victim could have obtained if he had taken advantage of his
15
Florin I. Mangu, op. cit., p. 163.
16
Idem, p. 165.
17
Aurélien Bamdé, La perte dùne chance, in Droit de responsabilité, Droit des contrats, Droit des
obligations, Responsabilité extracontractuelle, 2016; Rebecca Spitzmiller, Selected areas of italian tort
law. Cases and Materials in a Comparative Perspective, il Sirente, 2011, p. 80 apud Cass. 17
July1889, Recueil Sirey, 1897, I, 399.
18
Oana Gligan,Loss of a chance seen in terms of the conditions of civil liability, in Studia Universitatis
Babeş-Bolyai Jurisprudence nb. 2/2014, p. 14.
19
Marina Teller, La perte dùne chance de contracter ou de ne pas contracter, în Revue de
Jurisprudence Commerciale, 2013, p. 2, Courdecassation.fr/publication/rapport annuel apud 1re Civ.,
7 décembre 2004, Bull. 2004, I, n° 302, p. 253, pourvoi n° 02-10.957.
233
Conference Paper
chance 20, since we are talking about a missed capitalization opportunity and not about an
actual loss due to non-realization. The victim does not seek to obtain the advantages that
would have resulted from capitalizing on the chance but seeks to compensate for the
wastage of the chance that he could have capitalized but failed to do so due to the
occurrence of the wrongful act. According to art. 1385 para. (4) C.civ., "If the illicit deed
also determined the loss of the chance to obtain an advantage or to avoid damage, the
reparation will be proportional to the probability of obtaining the advantage or, as the
case may be, of avoiding the damage, taking into account the circumstances. and the
concrete situation of the victim ". The judge's task is not an easy one, he being called to
assess by reference to each case, under the conditions required by law, whether the
person was really unable to capitalize on a chance. We cannot say with certainty that the
victim would have obtained that advantage, but it is clear enough that this type of damage
will be shown if, until the time of the wrongdoing, the victim really enjoyed a potential
advantage, gain, which it would have created a more favorable situation and it will
disappear at the moment of committing this deed. For example, the damage suffered by
the client by losing the chance to win the trial through the fault of the lawyer who did not
file the appeal in due time, the client will loss the chance of winning the case.21
This type of damage that arouses more and more interest is exploited whenever a
person is deprived of his right or is unable to capitalize on an advantage through the
fault of another. Putting the victim in a position to stop his studies, compromising a
person's career by losing a real chance to be recruited, the painter's non-participation in
a competition that could have brought him a prize, etc., are required to be compensated
because they represent possibilities, that is, the objective premises of a future reality.
Probability expresses the random character of an event, from a mathematical point
of view, the probability is that calculation that allows assessing whether a complex event
will happen or not, depending on the eventuality of simpler events, supposedly known22.
It is appreciated 23that, if chance exists in reality, the loss constitutes certain damage,
therefore repairable, to the extent of the probability of the occurrence of the happy event.
4. The evolution of the damage resulting from the loss

of a chance in the medical field?
This type of injury has seen a spectacular evolution in the medical field, urging them
to think about existing problems, both on practitioners and theorists of law as well as the
medical world. A famous case in France is that of a boy born with a severe disability
whose situation has been widely debated in terms of "the chance of not being born". In
this case, the boy's mother, who was 4 months pregnant and aware of the symptoms of
rubella, was determined to terminate the pregnancy in order not to condemn her own
child to a difficult existence due to a possible disability. After undergoing several
20
Ioan Adam, Civil law treaty. Obligations. Volume I. The Contract, C. H. Beck Publishing House ,
21
Oana Gligan, op. cit. p. 10.
22
To be seen The explanatory dictionary of the Romanian language.
23
Philippe Malaurie, Laurent Aynès, Philippe Stoffel-Munck, op. cit., p. 521.
234
specialized examinations, the woman was assured that the condition would not affect the
child. The child was born with a syndrome that had serious problems and abnormalities
such as hearing loss, eye injuries, neurological disorders, which leads parents to apply on
the one hand for compensation for the birth of an unwanted child for the disability he
suffered, which was admitted, the court arguing that "medical errors led them to believe
that the mother is immunized and the baby will be born normally" and on the other hand,
to bring an action on behalf of the child, which was also admitted on the grounds that
"Since the errors made by the doctor and the laboratory in the performance of the
contracts with Ms Perruche prevented her from exercising her right to terminate the
pregnancy in order to avoid the birth of a disabled child, the latter may claim
compensation for the damage resulting from the disability. and caused by the errors noted
above ". The assessment of his injury was made with the loss of autonomy, the need for
this child to be supervised and cared for throughout his life, and the impossibility to
develop professionally24. In such a situation it is foreseeable that the person will be
impossible to live in normal conditions, being permanently deprived of the opportunity to
have a job, to participate in social life. Finally, the reactions were diverse, the central idea
being the respect due to the human being and the impossibility for someone to decide that
death would be a superior value to life25.
About the damage resulting from the loss of a chance related to the obligation to
inform professionals, the French Court of Cassation stated in 1990 that, failing to fulfill
the obligation to inform about the possible consequences of choosing to accept the
proposed operation, a surgeon deprived the patient of the chance to escape, by a
possible more thoughtful decision, from the risk that eventually materialized and that
this loss was a separate injury from the bodily injury resulting from the medical
intervention26.The court also explained that if the doctor's fault caused the patient to
lose the chance to avoid harming his physical integrity the damages will be related to
the real condition of the patient and all the consequences of the injury27. A practitioner
who has failed to fulfill his obligation to inform his patient of the serious, inherent risks
of a medical act of investigation or treatment shall deprive the latter of the possibility
of giving informed consent or refusal, and, therefore, it is necessary to investigate the
patient's state of health as well as its evolution, the reasons for which he was offered
risky investigations or care as well as the characteristics of the investigations and
treatments to which he was subjected. The effects that this information could have had
on his consent will also be analyzed, to be able to establish whether, about the risk that
24
Monna-Lisa Belu Magdo, op. cit. p. 210 apud M. L. Belu Magdo, I. M. Zlătescu, The right of the person to
capitalize on the chance and the legitimate hope, in the Human Rights Magazine nb. 3/2015, p. 27
25
We recomend to be seen: https://www.humanite.fr/node/237257, website accessed in 14.02.2021,
time: 15:37, https://www.la-croix.com/Archives/2000-11-02/Un-enfant-handicape-se-plaint-d-etre-ne-
_NP_-2000-11-02-120033, Sache Neculaescu, Reparation of the damage caused by the damage of
interest, in the Universul Juridic Magazine, nb. 4/2017, pp. 13-31 apud LÀinès, Préjudice de lènfant
né handicapé: la plainte de Job devant la Cour de Cassation, Éd. Dalloz, 2001. chron., p. 492,
Làction de la vie dommageable, JCP, 2000, l, pp. 2275-2280.
26
Courdecassation.fr/publications/rapport annuel apud 1re Civ., 7 février 1990, Bull. 1990, I, n° 39, p.
30, pourvoi n° 88-14.797).
27
Courdecassation.fr/publication/rapport annuel apud 1re Civ., 29 juin 1999, Bull. 1999, I, n° 220, p.
141, pourvoi n° 97-14.254.
235
Conference Paper
subsequently materialized, the patient would have accepted or not the operation28.
Violation of the obligation aimed at obtaining the informed consent of the patient
represents the loss of his chance to escape the risk that eventually materialized29.
By the provisions of art. 660 of Law no. 95/2006 republished in the Official Gazette no.
652 of August 28, 2015, with subsequent amendments and completions, the doctor has the
obligation to explain to the patient any potential risk involved in a particular method of
prevention, diagnosis or treatment, using reasonable terms, so that the patient can express an
agreement or an informed refusal. The obligation to inform is essential, and by expressing the
agreement, the patient assumes the consequences and risks of the intervention. Medical risk
must be viewed, on the one hand in terms of the level of scientific knowledge and on the other
hand, about the professionalism and competence of the doctor, able to anticipate possible
injuries, complications that may affect the patient's health30.
Conclusions
In conclusion, because of the above, what is of interest is the uniqueness of this type
of damage which may give rise to a right to compensation. The effective way in which
the victim is harmed, namely the illicit act by which the occurrence of a favorable future
event is prevented, imposes a special measure of protection of persons who at a certain
moment may be unable to exercise a right, to and continue efforts to gain an advantage.
Although we do not always talk about the certainty of a favorable event, we believe that
whenever there is a serious enough presumption of this event, it is important that victims
enjoy compensation, which compensates, to all the circumstances of the case, the
impossibility of the person to benefit from the possibility to capitalize on his chance. We
consider that this is by no means an unjustified compensation or a forced indemnity
granted to persons who have been guiltily deprived of the opportunity to seize the
opportunity, but, on the contrary, it is necessary and welcomes the intention of the
legislator to cover all types of damages to identify solutions in such a way that there are
no persons who, although they have suffered the consequences of illegal acts, do not have
the possibility and the basis to be able to claim compensation.
Bibliography:
1. Aurélien, Bamdé, La perte dùne chance, in Droit de responsabilité, Droit des contrats,
Droit des obligations, Responsabilité extracontractuelle, 2016.
2. Bazil, Oglindă, Eugen, Sârbu, The damage resulting from the loss of a chance, in the
Journal of Notes and Legal Studies, 2016.
3. Bazil, Oglindă, The general theory of obligations, Universul juridic Publishing House,
Bucharest , 2017.
28
Courdecassation.fr/publication/rapport annuel apud 1re Civ., 20 juin 2000, Bull. 2000, I, n° 193, p.
125, pourvoi n° 98-23.046.
29
Courdecassation.fr/publication/rapport annuel apud 1re Civ., 6 décembre 2007, pourvoi n° 06-19.301.
30
Monna-Lisa Belu Magdo, op. cit., p. 212.
236
4. Flavius-Antoniu, Baiaş, Eugen, Chelaru, Rodica, Constantinovici, Ioan, Macovei, The

new Civil Code. Comment on articles, C.H.Beck Publishing House , Bucharest, 2012.
5. Florin I, Mangu, Civil liability. Constants of civil liability, Universul juridic Publishing
House, Bucharest , 2014.
6. Gabriel, Boroi, Carla Alexandra, Anghelescu, Bogdan, Nazat, Ioana, Nicolae, Civil law
files, 4th Edition, revised and added, Hamangiu Publishing Huse, Bucharest, 2019
7. Gabriel, Boroi, Liviu Stănciulescu, Civil Law Institutions.Hamangiu Publishing House ,
Bucharest, 2012.
8. Ioan, Adam, Civil law treaty. Obligations. Volume I. The Contract, C. H. Beck
Publishing House , Bucharest, 2017.
9. Ion, Dogaru, Pompil, Drăghici, Civil law. The general theory of obligations . 2nd Ed., C.
H. Beck Publishing House , Bucharest, 2014.
10. Jaques, Flour, Jean-Luc, Aubert, Éric, Savaux, Droit civil. Les obligations. 3. Le
rapport dóbligation, Sirey, 2015.
11. Liviu, Pop, Ionuţ-Florin, Popa, Stelian Ioan, Vidu, Civil law. Obligations. The second
edition, revised and added, Universul juridic Publishing House, Bucharest, 2020.
12. Marina, Teller, La perte dùne chance de contracter ou de ne pas contracter, în Revue
de Jurisprudence Commerciale, 2013.
13. Monna-Lisa, Belu Magdo, Contractual civil liability in the new Civil Code, Hamangiu
14. Oana, Gligan, O., The loss of a chance seen in terms of the conditions of civil liability,
in Studia Universitatis Babeş-Bolyai Jurisprudence no. 2/2014.
15. Paul, Vasilescu, Civil law. Obligations, Hamangiu Publishing House, 2021, pp. 579-580.
16. Philippe, Le Tourneau, Droit de la responsabilité et des contrats. Régimes
d'indemnisation, Dalloz.
17. Philippe, Malaurie, Laurent, Aynès, Philippe, Stoffel-Munck, Droit des obligations,
LGDJ, Paris, 2015.
18. Rebecca, Spitzmiller, Selected areas of italian tort law. Cases and Materials in a
Comparative Perspective, il Sirente, 2011.
19. Sache, Neculaescu, Reparation of the damage caused by the damage of interest, in
Universul Juridic Magazine, nb. 4/2017.
20. https://www.clujust.ro/motivation-comepensation-for-repairing-damages-produces-as-
a-result-of-a-chance/.
21. https://www.courdecassation.fr.
22. https://www.humanite.fr/node/237257.
23. https://www.la-croix.com/Archives/2000-11-02/Un-enfant-handicape-se-plaint-d-etre-
ne-_NP_-2000-11-02-120033.
237
Conference Paper
EROSION OF CONSTITUTIONAL LOYALTY

IN A STATE SUBJECT TO THE RULE OF LAW
DURING A PANDEMIC YEAR
Maria-Nicoleta MORAR*
Abstract: The Covid-19 pandemic has diluted the principle of constitutional loyalty, the
executive and/or legislative powers of many states under the rule of law having manifested a
disloyal conduct towards their Constitutions, which led to the impossibility of adequately
implementing the fundamental law or any other normative acts. This new legal reality produces
consequences upon the functioning of the state under the rule of law, as the state itself no longer
necessarily functions based on a constitutional system, which represents a paradox, as the
political system must be constitutional and, therefore, the actions exercised by the public
authorities must be compliant to the legal regulations which, in a mandatory manner, must
comprise restrictive acting provisions. The article exposes the manner in which the disloyal
conduct may manifest against the constitutional norms by the discretionary exercise of certain
attributions, the manner in which the principle of separation of powers in a state can be violated
by the erosion of constitutional loyalty, and how this lack of constitutional loyalty in the scope of
powers reflects on the scope of rights and fundamental freedoms.
Keywords: state subject to the rule of law, constitutional loyalty, Covid-19, fundamental
rights and freedoms, anti-constitutional practices.
Introduction
The existence of a loyal collaboration was established as a principle of

jurisprudence origin in many lawful states, it being given an incontestable
constitutional rank. Upon outlining this principle of constitutional loyalty, it was not
only the States’ constitutional judges’ rulings that contributed to its outlining, but,
especially, the doctrine as well, as without the existence of a doctrine which clearly
states the aspects pertaining to loyal collaboration between state institutions, between
state powers, a state and its administrative-territorial units/regions, the principle of
loyal collaboration would have remained a simple impracticable theory in
constitutional law. Evidently, this principle refers to state practices, as state practices
refer to principle. At the present time, there are very many fundamental laws
consecrating the instruments necessary for the development and maintenance of
partnerships between the state and regions, between central and local powers,
especially with regards to exercising their administrative duties and adopting normative
acts within the enactment process. As a consequence, integration of territorial subjects
in the unitary state is possible independently of their scope, by applying a principle of
loyal collaboration which, although not explicitly enunciated, constituted the subject of
* The author is a PhD candidate at the Faculty of Law Doctoral School, at the University of Craiova.
238
many jurisprudence interpretations issued by constitutional judges. In this respect, the

doctrine was turned to advantage by means of the jurisprudence, and the latter was
applied to the letter in the constitutional state practices, having the purpose of
maintaining the unitary character of the state under the rule of law.
However, the COVID-19 pandemic has demonstrated that constitutional loyalty is
fragile, the executive powers and/or legislative powers of a lawful state having
manifested a disloyal conduct towards the Constitution, making adequate
implementation of the fundamental law impossible. This new legal reality determines
the state under the rule of law to no longer necessarily function based on a
constitutional system, which represents a paradox, as the political system must be
constitutional and, therefore, the actions exercised by the public authorities must be
compliant to the legal regulations which, in a mandatory manner, must comprise
restrictive acting provisions. The constitution must have supremacy in relation to other
legal norms and, as such, the authorities’ drafting of certain norms which do not
correspond to constitutional exigences is equivalent to a lack of loyal conduct towards
the constitution, that we have named “constitutional disloyalty”.
“Constitutional disloyalty represents the manifestation of certain formal and exact
practices of the state powers, in an anti-constitutional manner, which facilitates the
exercise of an abuse of power by one power against another by exceeding conferred
upon constitutional competences, affecting the implementation of the lawful state’s
democratic principles”.1 (s.n.)
“Manifesting practices in an anti-constitutional manner represents the conducts of
state power representatives who, by lack of collaboration, defective collaboration, or
strong collaboration, prove a lack of attachment to the values guaranteed by the
Constitution and determine legal dysfunctionalities which significantly compromise
any form of democratic government”.2 (s.n.)
Given these aspects, we will continue by emphasizing certain consequences of the
erosion of constitutional loyalty in a state under the rule of law, erosion which not only
compromises the principles of the rule of law, but also diminishes or renders relative
those values which are attributed to the democratic and free society.
1. Disloyal conduct towards constitutional norms

by the discretionary exercise of certain attributions
If the principle of the constitutional character, in its essence, signifies loyalty to a

state’s fundamental law, then manifesting a disloyal conduct towards the constitutions
takes shape in the removal of the constitutional character of certain defining values and
perceptions which are defining for the fundamental democratic law, thus impeding its
adequate application.
1
Maria - Nicoleta Morar, ”Consequences of lacking loyalty towards Constitution in the Rule of law”, in
Revista de Ştiinţe Politice (Political Sciences Magazine). Revue des Sciences Politiques, No. 62,
Publishing house Universitaria Craiova, 2019, p. 123.
2
Idem, Ibidem.
239
Conference Paper
In other words, the constitutional disloyalty represents a trivialization of

constitutional values, either by the public authorities’ exceeding certain competence
limits stipulated by the constituent, or by the defective collaboration between the state
institutions, or lack thereof, these being accompanied by the lack of any attachment to
the values protected by those fundamental values that regulate those relations regarding
the social-economic and state order. In this manner, there is a dysfunctionality in
implementing the Constitution.
The expression “constitutional loyalty” is mentioned more and more in the
jurisprudence of Romania’s Constitutional Court as well. It is thus necessary, in this
context, to exemplify the Romanian Constitutional Court’s Decision no. 85 from 24
February 20203, by means of which the notification addressed to the Court with regards
to a legal conflict of constitutional nature between the President of Romania and the
Parliament of Romania was admitted, context in which the good functioning of a
public authority in exercising its act of power is impeded, thus producing severe
consequences in the act of governing.
In fact, the Court was notified with regards to the President’s discretionary
exercise of duties as, according to the addressed claims, by having designated a
candidate for the position of prime-minister, a candidate for which the Parliament
withdrew confidence by means of a vote of no confidence, the chief of state violated
several constitutional provisions and principles4, among which the principle of loyal
collaboration between public institutions as well, principle deriving from Article 1,
para. (4) of the Constitution5.
Analyzing the de facto situation deduced for judgment, the Constitutional Court
found that designating the same prime-minister just one day after the Parliament had
adopted the vote of no confidence by which it had withdrawn confidence dilutes the
purpose for which the procedure provided under article 103, paragraph (1) under the
fundamental law was instituted.6 Furthermore, the contentious constitutional judges
underlined the fact that the President of Romania did not act with constitutional
loyalty as he had publicly sustained and declared his intention to favor a situation
that would meet the constitutional requirements that would allow him to dissolve the
3
Please see: Decision no. 85 from 24 February 2020 with regards to the legal claims of a constitutional
nature between the President of Romania and the Parliament of Romania, formulated by the president
of the Chamber of Deputies and the president of the Senate, published in the Official Journal of
Romania no. 195 from 11.03.2020, item. 9.
4
Idem, item 37: “... by nominating Mister Ludovic Orban as prime-minister, the President of Romania
has violated the will of the Parliament which had just withdrawn confidence for Mister Orban by means
of a vote of no confidence. By rejecting the prime-minister proposal formulated by a parliamentary
majority, the President of Romania shall trigger, as he declared, a legal conflict of constitutional
nature, impeding the formation of a government, with the purpose of dissolving the Parliament and
achieving snap elections...”.
5
The Constitution of Romania, art. 1 para. 4: “The State is organized according to the principle of
separation and balance of powers - legislative, executive, and the courts - within a constitutional
democracy.”
6
The Constitution of Romania, art. 103, para. (1): “The President of Romania designates a candidate
for the position of prime-minister as a result of consultations with the party that holds absolute majority
in Parliament or, if such a majority does not exist, with the parties represented in Parliament.”
240
Parliament.7 The court ascertained that the President had had a conduct which is
contrary to the Constitution, and which contravenes the constitutional loyalty because,
by designating the candidate for the prime-minister position, he aimed at inciting a
political crisis that would lead to snap elections. In this case, the Court states, even
though the President had observed the Constitution’s provisions by organizing
consultations before designating a new prime-minister, the provisions of the fundamental
law do not resume to simply following the letter of the law, but also its spirit, as only in
this way can solutions be explicitly regulated for situations arising in practice and
regarding even those relationships between “public authorities of constitutional rank”8.
With the purpose of substantiation, the judges emphasized several paragraphs in one
Venice Commission Endorsement9, underlining that a state under the rule of law cannot
be restricted solely by applying formal and explicit provisions under the Constitution and
the law, it implying a conduct that denotes mutual respect between the constitutional
bodies. In this endorsement, it is declared that the purpose of the provisions under the
fundamental law is that of offering a framework in which the state’s institutions can
function well based on loyal collaboration.10 Given these aspects, with regards to the
cause deduced for judgment, the Constitutional Court concludes that the lack of respect
between the state’s institutions leads to the impossibility of establishing certain mutually
accepted practices that would allow the country to get past or avoid crises and, as such,
the principle of loyal cooperation is violated between these institutions. Furthermore, the
Constitutional Court of Romania’s judges referred to several Decisions11 under its
7
Decision no. 85 from 24 February 2020, item 118: “Concurrently, the President of Romania supported,
by means of his public statements and the act of designation, a candidate for the position of prime-
minister who, in turn, publicly declared that he aims at the Parliament rejecting two requests for
vesting the Government and triggering the dissolution of Parliament under the conditions of art. 89 of
the Constitution. (...). Following the logic of the analyzed constitutional texts of reference and acting
with constitutional loyalty, the President of Romania should have excluded, de plano, a candidate who
states, both before, during, and after consultations that he will contribute to the rejection of the two
Government requests which are to be formulated, so as to meet the constitutional requirements for
allowing the President to “dissolve this Parliament”.”
8
Idem, Ibidem, item 120.
9
The Venice Commission, Endorsement with regards to the compatibility with constitutional principles
and the state under the rule of law of the Romanian Government and Parliament’s actions with
regards to other state institutions, and the Romanian Government and Parliament’s Emergency
Ordinance with regards to other state institutions, and Government Emergency Ordinance for the
amendment of Law no. 47/1992 on the organization and functioning of the Constitutional Court, and
Government Emergency Ordinance for the amendment and completion of Law no. 3/2000 regarding
the organization and development of a referendum in Romania, adopted by the Venice Commission
during its 93rd plenary session from 14-15 December 2012, paragraph 72.
10
Idem paragraph 87: “(...). The chief of state, Parliament, Government, judicial system, all serve the
common purpose of promoting the country’s interests as a whole, and not the narrow interests of a
single institution or a sole political party that designated the position holder. Even if an institution is in
a state of power, when it is in a position to influence other state institutions, it must do so by keeping in
mind the state as a whole (...).”
11
Regarding the loyal conduct, please see: Decision no. 1257 from 7 October 2009, published in the
Official Journal of Romania, Part I, no. 759 from 6 November 2009, Decision no. 1431 from 3
November 2010, published in the Official Journal of Romania, Part I, no. 758 from 12 November 2010,
Decision no. 727 from 9 July 2012, published in the Official Journal of Romania, Part I, no. 477 from
12 July 2012, Decision no. 924 from 1 November 2012, published in the Official Journal of Romania,
Part I, no. 787 from 22 November 2012.
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Conference Paper
jurisprudence that aim at loyal collaboration12 and constitutional loyalty13,

establishing that, in fact, the institutional conduct must encompass loyal
collaboration, with two finalities. The primordial finality is represented by a good
functioning of the state’s authorities by means of adequate management of public
interests and by showing respect towards fundamental human rights and freedoms.
On the other hand, the secondary finality resides in avoiding inter-institutional
conflicts, which also implies eliminating blockages in the exercise of their legal
prerogatives.14 Given this, the Court states that designating the candidate for the
position of Romania’s prime-minister seems to be “a unilateral act of will”15 of the
President, as it was done inconsistent with the obligation of constitutional loyalty and
by neglecting the effects of the vote of no confidence. In consequence, the
contentious constitutional judges decided, with a majority of votes, that the chief of
state must proceed to another designation which must be consistent to the
Constitution’s content and essence, pursuant to the obligation of a loyal conduct.
2. Violating the principle of separation of powers

in a state by eroding constitutional loyalty
The erosion of constitutional loyalty in a state under the rule of law took place
gradually, especially in a pandemic year, but with so much intensity that the
constitutional values and the principles of the lawful state were trivialized, even by
public authorities exceeding certain limits of competence stated by the constituent, thus
resulting in certain dysfunctionalities in the implementation of the Constitution by
violating the principle of separation of powers in a state. A revealing example in this
respect is represented by Decision no. 457 from 25 June 2020, ruled by the judges of
the Romanian Constitutional Court, by means of which it is declared that certain
provisions under Law no. 55/2020 regarding certain measures for the prevention and
fight against the effects of the COVID-19 pandemic are unconstitutional.16
12
Decision no. 356 from 5 April 2007, published in the Official Journal of Romania, Part I, no. 322 from
14 May 2007: “(...) The collaboration between authorities is a necessary and essential conditions for
the good functioning of the state’s public authorities.
13
Decision no. 611 from 3 October 2017, published in the Official Journal of Romania, Part I, no. 877
from 7 November 2017, para. 107: “Constitutional loyalty may be characterized, thus, as an intrinsic
value-principle of the Fundamental Law, while loyal collaboration between the state’s
authorities/institutions has a defining role in implementing the Constitution.”
14
Decision no. 85 from 24 February 2020, paragraph 123.
15
Idem, paragraph 125: “As such, the designation appears as a unilateral act of will, an expression of
the exclusive will of Romania’s President, which is positioned in this manner outside the logic of
constitutional relations of separation and balance of state powers and of the effects that this logic
attaches to the designation of the candidate for the position of prime-minister.”
16
The Decision no. 457 from 25 June 2020 regarding the exception of non-constitutionality of provisions
under art. 4 para. (3) and (4), as well as those of art. 65 letters s) and ş), of art. 66 letters a),b) and
c) with regards to references to art. 65 letters s), ş) and t), and those of art. 67 para. (2) letter
b) regarding references to art. 65 letter s), ş) and t) under Law no. 55/2020 regarding certain
measures for the prevention and fight against the effects of the COVID-19 pandemic, published in the
Official Journal of Romania no. 578 from 1 July 2020.
242
The non-constitutionality exception was eliminated by the Ombudsman, who, in

her substantiation, claimed that the provisions under art. 4 para. (3) and (4) of Law no.
55/2020 are of such a nature as to violate the principle of separation of powers in a
state, to change the constitutional regime of the executive power’s decisions by not
taking into account the constitutional norms which establish the Parliament’s
relationships with the Government, violating the norms regarding judicial control, by
way of administrative contentious, of administrative documents issued by the public
authorities and, in consequence, violates the free access to justice of persons who
consider themselves injured in their rights by the Government’s decisions.
In fact, pursuant to Law no. 55/2020, the state of alert can be instituted by means
of a decision adopted by the Government, which can be submitted to the approval of
the Parliament in the situation in which a state of alert has been declared in at least half
of the administrative-territorial units. With regards to the legislative power approving
this decision, according to the same law, the Parliament has given itself the competence
to not only grant the entire normative administrative act of the executive power, but
also to amend it.17 However, this regulation injures the separation of power in a state
by the intervention of the Parliament in the Government’s activity, as a decision issued
by the executive is a secondary normative act which, as opposed to the emergency
ordinance, must not be subjected to the Parliament’s approval, there not being any
constitutional provision in this respect. The Romanian Constitutional Court judges
found that, by means of these provisions, a new form of parliamentary control is
instituted in an unconstitutional manner, the judicial nature of a normative act
belonging to the executive power being, in a discretionary manner, converted into a
political document aiming at the constitutional relationship between the Parliament and
Government. Practically, if such a scenario would be permitted, the authorities would
renounce the principles that they should be observing in the exercise of their duties, the
principle of separation and balance of powers in a state would be annihilated, and there
would be no more loyal cooperation between the public authorities as the Parliament
could subrogate, at any time, in the competence of the Government, to institute the
state of alert, which would contravene art. 1 para. (4)18 and art. 108 of the Constitution
of Romania19. It is true that the state of alert is the exclusive creation of the Parliament
based on its enactment prerogatives, stipulating that its institution is done by means of
17
Law no. 55 from 15 May 2020 regarding measures for the prevention and fight against the effects of
the COVID-19 pandemic, published in the Official Journal of Romania no. 396 from 15 May 2020, art.
4, para. (3) and (4).
18
The Constitution of Romania, art. 1 para. 4: “The State is organized according to the principle of
separation and balance of powers - legislative, executive, and the courts - within a constitutional
democracy.”
19
The Constitution of Romania, art. 108: “(1) The Government adopts decisions and ordinances.
(2) Decisions are issued for the organization of the execution of laws.
(3) Ordinances are issued pursuant to a special capacity granting law, within the limits and conditions
provided by them.
(4) The decisions and ordinances adopted by the Government are signed by the prime-minister,
counter-signed by the ministers which have the obligation of executing them, and they are published
in the Official Journal of Romania. Not publishing them leads to the nonexistence of the decisions or
ordinances. The decisions which are of a military nature are communicated solely to the interested
institutions.”
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a Government decision, however, this does not allow the Parliament to set aside the
constitutional mechanisms and to subject the executive’s decision to a parliamentary
control, as this would mean the extension of the competences of the legislative in the
scope of the executive by the intrusion of the legislative power in a secondary
regulation act for the execution of laws, which pertains solely to the executive power.
In this respect, the Constitutional Court declared since 2003, through Decision no. 127,
the fact that the competence of an authority cannot be extended, established, or
removed if, by doing so, the principles or provisions of the fundamental law are
violated.20
3. Lack of constitutional loyalty, from the scope of power

into the scope of fundamental rights and freedoms
The lack of loyalty towards the Constitution in a state subjected to the rule of law,
in a pandemic year, has not only affected the principle of separation and balance of
powers in a state, but has also had an impact on the fundamental rights and freedoms,
often rendering their exercise impossible by the beneficiaries of the constitutional
norms. With the purpose of preventing the spread of the Covid-19 pandemic, certain
states implemented measures meant to limit and even abolish, in some cases, the
exercise of fundamental rights and freedoms. Even the Romanian Constitutional
Court’s Decision no. 457/2020 provided before, states that the institution of a
parliamentary control upon a decision issued by the Government violated the principle
of free access to justice of persons that consider themselves injured by the
administrative act of the public authority, which contravenes the exigences of the state
under the rule of law.
Most times, this restriction of rights and freedoms is possible by extending the
competences of certain authorities through exceeding the constitutional framework. For
instance, on 12 July 2021, the Constitutional Court of Spain found that the measures
imposed by the Government at the beginning of the Covid-19 pandemic are
unconstitutional, as, by extending certain competences of the public authorities, the
Ministry of Health was given power to modify and extend the isolation measures in the
field of commercial activities, cultural facilities, and recreational activities, as well as
the activities of hotels and restaurants, and the Ministry of Internal Affairs was given
power of decision with regards to closing public roads and sections, for reasons of
public health.21
In Romania, most measures for the restriction of fundamental rights and freedoms
during the Covid-19 pandemic were instituted by means of the decisions of the
National Committee for Emergency Situations, decisions which, although not
published, entered the judicial circuit and produced legal effects, generating and
20
Decision no. 127 from 27 March 2003, published in the Official Journal of Romania no. 275 from 18
April 2003.
21
https://cincodias.elpais.com/cincodias/2021/07/14: ”El Constitutional declara illegal el confinamiento
decretado en el primer estado de alarma.”
244
fueling themselves outside the constitutional framework, a judicial anomaly

incompatible with the state under the rule of law.
Conclusion(s)
Having shown all of these aspects, we can conclude that the lack of loyal conduct
towards the constitution, which we have named “constitutional disloyalty” can create a
judicial disorder by overthrowing the hierarchy of norms by means of the authorities’
poor or abusive fulfillment of certain constitutional obligations, and the consequences
impact the state in itself, as the state’s right to apply the constitutional norms is limited
by the lack of loyalty towards these norms. The lack of loyalty is circumstantial to the
occurrence of a judicial dysfunctionality, of an anomaly which generates blockages in
the scope of power, diminishing or trivializing, even annihilating those values
attributed to the democratic and liberal society..
Bibliography:
1. Specialized works and articles:
• Maria-Nicoleta Morar, ”Consequences of lacking loyalty towards the Constitution in the
Rule of law”, in Revista de Ştiinţe Politice (Political Sciences Magazine). Revue des
Sciences Politiques, No. 62, Publishing house Universitaria Craiova, 2019.
2. Romanian Constitutional Court Jurisprudence:

• Decision no. 85 from 24 February 2020 with regards to the legal claims of a
constitutional nature between the President of Romania and the Parliament of Romania,
formulated by the president of the Chamber of Deputies and the president of the Senate,
published in the Official Journal of Romania no. 195 from 11.03.2020.
• Decision no. 1257 from 7 October 2009, published in the Official Journal of Romania,
• Decision no. 1431 from 3 November 2010, published in the Official Journal of Romania,
• Decision no. 727 from 9 July 2012, published in the Official Journal of Romania, Part I,
no. 477 from 12 July 2012.
• Decision no. 924 from 1 November 2012, published in the Official Journal of Romania,
• Decision no. 611 from 3 October 2017, published in the Official Journal of Romania,
• Decision no. 457 from 25 June 2020 regarding the exception of non-constitutionality of
provisions under art. 4 para. (3) and (4), as well as those of art. 65 letters s) and ş), of art. 66
letters a),b) and c) with regards to references to art. 65 letters s), ş) and t), and those of art. 67
para. (2) letter b) regarding references to art. 65 letter s), ş) and t) under Law no. 55/2020
regarding certain measures for the prevention and fight against the effects of the COVID-19
pandemic, published in the Official Journal of Romania no. 578 from 1 July 2020.
• Decision no. 127 from 27 March 2003, published in the Official Journal of Romania no.
275 from 18 April 2003.
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3. Venice Commission Endorsements:

• The Venice Commission Endorsement with regards to the compatibility with
constitutional principles and the state under the rule of law of the Romanian Government
and Parliament’s actions with regards to other state institutions, and the Romanian
Government and Parliament’s Emergency Ordinance with regards to other state
institutions, and Government Emergency Ordinance for the amendment of Law no.
47/1992 on the organization and functioning of the Constitutional Court, and
Government Emergency Ordinance for the amendment and completion of Law no.
3/2000 regarding the organization and development of a referendum in Romania,
adopted by the Venice Commission during its 93rd plenary session from 14-15
December 2012.
4. Laws:
• Law no. 55 from 15 May 2020 regarding measures for the prevention and fight against
the effects of the COVID-19 pandemic, published in the Official Journal of Romania no.
396 from 15 May 2020.
5. Constitutions:
• The Constitution of Romania.
6. Internet sources:
• https://cincodias.elpais.com/cincodias/2021/07/14: ”El Constitutional declara illegal el
confinamiento decretado en el primer estado de alarma.”
246
INTERCURRENT ILLNESSES AS ASSUMPTION

ASSIMILATED TO THE WORK ACCIDENT:
A JURISPRUDENTIAL REVIEW
Cătălina SMÎNTÎNICĂ*
Abstract: The main purpose of this article is to address the different occupational diseases
assimilated within the concept of accident at work, with special impact on so-called
interrucreant diseases. For the understanding of interrucreant diseases it is necessary to resort
to jurisprudence, as well as to treat the concept of accident at work, its integrative elements and
the distinction of professional and common diseases. The Spanish legal system protects not only
traumatic injuries (hit, fall, etc.) as an accident at work, but also includes diseases that derive
from or relate to work and to which the consideration of occupational diseases is not attributed.
In order for a disease to be considered as a professional, it is necessary that, in addition to
contracting for the performance of the work, it is included in the professional diseases table and
is produced by the action of the elements and substances listed in the table regulated by RD
1299/2006, of 10 November. There are other diseases that also cause or originate work and do
not appear in the disease table, and in such case ailments are classified as an accident at work
(v.gr. work stress, depressive syndrome due to work, etc.). In these cases, the rule requires that
the disease have as an "exclusive cause" the execution of the work, although in the case of
sudden diseases in the place and time of work (stroke, infarction, etc.), they benefit from the
presumption of labority of Article 156.3 TRLGSS. In this regard, diseases that originate at work,
diseases or defects previously suffered that are aggravated or manifested as a result of an
accident at work and the intercurrent diseases arising from or contracted during the process of
healing an accident at work are assimilated as an accident at work, the latter being the object of
this study.
Keywords: work accident, intercurrent illnesses, work disease, bodily harm.
Introduction: the legal concept of work accident and its integrative elements
In the Spanish legal order, the accident at work is regulated in article 156.1 of
Royal Legislative Decree 8/2015 of 30 October approving the consolidated text of the
General Law on Social Security (hereinafter TRLGSS). Accident at work means any
bodily injury suffered by the worker on the occasion or as a result of the work he
employs. Three elements that shape the legal concept of work accident have been
extracted from this definition: bodily injury, employment and causal connection.
However, these configurating elements, and thus the notion of an accident at work,
have been extending beyond their original scope, taking on a transcendental role the
case-law in being responsible for performing a "broad and flexible, non-restrictive,
* Researcher staff of the UCLM. PhD student in Law from the Department of Labour and Social Work
Law, Spain.
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according to the principles that preside over this sector of the legal order" to adapt it to
the realities of each historical moment1.
The first integrative element of the concept of work accident is bodily injury.
Injury means damage or harm, not only physical, but also psychic. The concept of
injury is not restricted to trauma, but extends to any bodily harm, to any physical or
physiological impairment that influences functional development. In addition, it is
considered an accident-of-work injury not only that resulting from the sudden and
violent action of an outside agent on the human body but also the damage that comes
from diseases, such as internal, sudden or slow acting processes, that occur or originate
from work2. This extension of the concept of accident at work beyond injuries caused
suddenly and violently by an external agent is due to the more flexible Spanish
legislation compared to other systems by dispensing with the form of onset of the
injury3.
The second integrative element of the concept of work accident is employment.
Work-related accident protection began in employment, where it has had its greatest
development. At present, however, the notion applies to different assumptions. On the
one hand, the General Regime, together with employed persons, includes other service
providers (officials, cooperative partners, etc.). There are also assimilated relationships.
On the other hand, the extension of the concept of an accident at work to other
professional activities not covered by the General Regime (such as those included in
the Autonomous Labour Scheme, albeit with nuances) requires, more importantly, the
corresponding adaptations of the concept. An employed person is understood to be an
employed person who has a common or special employment relationship in accordance
with Articles 1 and 2 of the Workers' Statute, with a budget required that the
employment relationship be in force when the accident occurs without, in general,
being classified as an accident at work which occurs when the employment relationship
is suspended4.
Finally, the third constituent element of the existence of the accident at work is the
causal link between the bodily injury suffered and the work5. This element incorporates
the causal link directly "as a result of work" or indirectly "on the occasion of work".
According to the Doctrine of the Supreme Court6, the difference between the two ways
of understanding the causal link is that in the so-called "consequence" of the work we
are facing a true "cause" of the accident, that is, of what the accident occurs while in
1
TASCON LOPEZ, R.: The accident at work in mission, Valencia, Tirant lo Blanch, 2010, p. 20.
2
SSTS 18 March 1999 (RJ 1999, 3006) and 27 February 2008 (RJ 2008,1546). Similarly, STS of 23
June 2015, Appeal No. 944/2014.
3
MARTIN VALVERDE, A.: "The accident at work: training and development of a legal concept", in
GONZALO GONZALEZ, B. and NOGUEIRA GUASTAVINO, M. (Dir.), VV.AA., One Hundred Years of
Social Security, Madrid, Fraternity – Muprespa and UNED, 2000, p. 228.
4
The suspension of the employment contract caused by the strike excludes the accident at work in
STSJ Galicia of 3 March 1995 (AS 1995954).
5
See on the causal link FERNANDEZ LOPEZ, M.F.: "Accident of work and causal link" in GONZALO
GONZALEZ, B. and NOGUEIRA GUASTAVINO, M. (Dir.), VV.AA., One Hundred Years of Social
Security, Madrid, Fraternity – Muprespa and UNED, 2000, pp. 325 and ss.
6
The SSTS of 24 February 2014 (RJ 2014/2771) and 27 February 2008 (RJ 2008/1546) and in
ROMERO RÓDENAS, M.J., The accident at work in judicial practice, Albacete, Bomarzo, 2nd ed.,
2017, pp. 47.
248
the alleged "on occasion" of work, what is described is a condition, that is, of what the
accident occurs while in the alleged "occasion" of work, what is described is a
condition, that is, of what the accident occurs while in the alleged "on occasion" of
work, what is described is a condition, that is, of what the accident occurs , a situation
without which the accident cannot occur. The causal link as a link between work and
injury operates flexibly and broadly7, understanding a whole range of cases which were
initially of jurisprudence and were subsequently incorporated into the legal texts. They
are currently 156.2 TRLGSS.
The connection with the execution of the work is always indispensable to some
degree without the need for its significance, greater or lesser, near or remote, concausal
or intervener, and that classification must be granted where the breakdown of the
causal link and condition is not established, unless the absolute lack of that relationship
is evident8. The breakdown of the causal relationship will occur where there is some
and convincing evidence of a cause that excludes the relationship with the work. They
are facts that unlink with total evidence the relationship between injury and work.
The determination of the causal link between work and injury is generally very
casuistic, especially where the accident has not occurred at the place and working time
in the event that the presumption of accident provided for in Article 156.3 TRLGSS
does not operate in such cases, corresponding to the burden of proof on the person
seeking the classification of a work accident of the injury suffered. However, some
situations in which causation has been recognised may be collected. In any event, the
causal link is not broken by the worker's recklessness, provided that it is not reckless9.
Among the most significant cases would be work stress that has been treated as a
trigger for an accident in situations where it is common for the stress of the activity
developed to cause a bodily injury in the subject. Another particular assumption would
be the suicide of the worker. There is no impediment to classifying suicide as an
accident at work as long as the causal link is established.
1. Diseases assimilated to the accident at work
The Spanish legal system distinguishes between occupational diseases assimilated

to the accident at work, in which there is an open causal link between work and
disease, ex Article 156.2 TRLGSS, of occupational diseases, in which the causal link is
closed and formalized ex Article 157 TRLGSS, and of the so-called common diseases,
which are those that cannot be included in any of the above categories , ex Article
158.2 TRLGSS. Diseases assimilated to the accident at work contained in paragraph
156.2(g) of the TRLGSS, according to which they are considered an accident at work,
are the subject of this study: "the consequences of the accident that are modified in
7
The term "occasionality" is the one that has allowed - and allows - the development of the concept of
accident see MONEREO PEREZ, J.L. AND FERNANDEZ AVIS, J.A.: "Determination of Social
Security contingencies. (Critical review of the political-legal sense and technical delimitation of
professional contingencies)", Aranzadi Social Doctrinal Journal, No. 19, 2008, (BIB 2008-4), p.27.
8
The STS of November 4, 1988 (RJ 19888529) in its FJ 2nd.
9
STSJ Asturias of 10 May 2013, (appeal number 1613/2012).
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their nature, duration, severity or termination, by intercurrent diseases, which constitute

complications arising from the pathological process determined by the accident itself or
have its origin in conditions acquired in the new medium in which the patient has been
placed for healing".
Before entering into the analysis of the object of study, it is advisable to deepen
the peculiarity presented by the Spanish Social Security system with regard to the
concept of diseases. The concept of an accident at work includes not only the sudden
and violent action of an outside agent on the human body (work accident in the strict
sense, but also the damage that comes from certain diseases, such as internal, sudden or
slow acting processes, that originate from work. These damages are classified as bodily
injury. Occupational etiology diseases are therefore incorporated into the concept of
work accidents. Such means the cases referred to in Article 156.2(e), (f) and (g)
TRLGSS. The legislature defines occupational diseases in a negative way. They are
diseases because of their relationship to work, they are not accidents at work in the
strict sense, nor are they professionals because they are excluded from the official table
of occupational diseases, nor common, since these alterations of health are granted the
condition and protection of accidents at work. In accordance with Article 156.2(e)
TRLGSS are considered to be "illnesses, not included in the following article, which
the worker contracts in connection with the performance of his work, provided that it is
proven that the disease had as its sole cause the execution of the work". That is, for
etiology to be an accident at work, there must be an open and exclusive causal link
between work and disease.
Currently, certain psychic pathologies contracted on the occasion and occasion of
work cannot be framed as occupational diseases, but they have a causal relationship
with the provision of services and are equated in their treatment to the accident at work.
In this sense, disorders or conditions derived from stress at work such as chronic
fatigue, depression, insomnia, anxiety, mobbing stand out10. These pathologies require
the accreditation that the worker's ailment has for the sole cause of the work, so that the
absence of exclusivity implies the non-consideration of the professional contingency.
Article 156.2(f) TRLGSS considers previously suffered illnesses or defects
suffered by the worker to be an accident at work which are aggravated as a result of the
injury constituting the accident. This provision has been interpreted by the doctrine as
meaning that persistent ailments to the damage that manifest or trigger for the first time
as an accident at work must be classified as an accident at work11. The decisive factor
for this purpose is that the previous injuries12 would not have prevented the normal
development of work prior to the accident, but that as a result of it is when the worker's
job capacity is limited, thus rising that the immediate cause of the incapacity lies in the
accident, without prejudice to the pre-existing cause having its origin in the previous
illness.
10
On the concept of accident at work art. 156.2(e) TRLGSS, see judgment of the High Court of Justice
of Asturias of February 4, 2020, (JUR 2020\129902).
11
SSTS of 23/6/15 (RCUD 94/4) and 13/12/18 (RCUD 398/17) and STSJ Aragon No. 15/2020, 20
January (JUR 2020,781).
12
Previous injuries could include those that are degenerative (RCUD 1594/2014).
250
The aggravation must occur as a result of the work carried out "through a sudden
event qualified as an accident at work"13 requiring the worker to prove such an
extreme. In this sense, it is not enough for the disease to be externalized at work, but a
sudden event needs to occur that acts as a trigger for aggravation, with that traumatic
event sharpening the previous disease or taking it out of its dormant state.
Article 156.2(g) TRLGSS provides for two distinct cases: the first is the diseases
which have as a remote cause the accident at work and, the second concerns the
conditions acquired as a result of the accident at work, even if they are not a direct
consequence of the accident at work. Intercurrent diseases arising from an accident at
work require a double requirement: the existence of an undisubited accident at work
and the immediate causal link between that initial accident and the disease arising from
the pathological process. In this case, the ailment appears after the accident, but with a
direct causal link with the accident, to the point that the disease would not have
appeared had the accident not occurred at work. In general, such diseases must be
considered of professional origin and are common to have a psychic component
because of their reactive nature to injuries arising from the accident at work.
In relation to conditions that arise during the treatment of the work accident but do
not derive directly from it, the causal link is not with the pathology derived from the
accident, but that these are conditions contracted during the prescribed curative
treatment or complications arising thereof uch as hospital infections in the treatment of
the accident, complications in the process of healing injuries, side effects on
medications administered in the treatment of the accident, malpractice, inadequate or
misdiagnosed treatment or subsequent ailments that arise during the treatment of the
work accident.
Such concepts, which from a medical point of view can be clearly defined, are
often blurred in the legal field14. There are cases where the disease does not fall within
the framework of paragraphs (e), (f) and (g) of Article 156.2 TRLGSS, but may be
regarded as an accident at work because of the game of the presumption of
employment of the work accident15. The manifestation of a common illness when an
occupational activity is carried out does not give it the condition of an accident at
work, and it is necessary to establish the effective influence of the aforementioned
work activity on the onset of the disease16.
Occupational diseases are those caused by harmful factors or agents that do not
specifically belong to a particular working environment or environment, but which may
13
The STS of 25 January 2006 (RJ 2006,4333): „the decisive factor is that the disabling effects occur or
show on occasion or as a result of the work that is being developed through a sudden event qualified
as an accident at work, since such effects occur as a result of the accident when interacting with the
previous illness; and the existence of a presumption of the concept of occupational disease yields to
evidence to the contrary and to this end it is sufficient to demonstrate that the disabling effects take
place as a result of the injury constituting the accident and, in the present case, it is proven that the
disabling effects of "epicondylitis" are the result of a muscle over-effort produced when the worker was
building brick".
14
MARTINEZ BARROSO, M.R., Diseases assimilated to the accident at work in the doctrine of the
Courts, General Council of Official Colleges of Social Graduates of Spain, Madrid, Forum Collection of
Social Law, 2004, p. 17.
15
STS of 18 June 1997,( RJ 1997,476) and STS of 11 July 2000 (RJ 2000,7409).
16
STS of 24 May 1990 (RJ 1990,4498); STSJ Navarra of 8 September 1999 (AS 1999,3057).
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act in the execution of the work17. The fundamental difference between occupational
diseases, occupational diseases and accidents at work in the strict sense is in the causal
relationship between work and injury. Occupational diseases have a presumption iuris et
de iure of professional origin of pathology, not being necessary to prove the causal
relationship (art. 157 TRLGSS), diseases of work do need to prove the causal connection
between the pathology suffered and the work that develops (art.156.2 c) TRLGSS). On
the other hand, accidents at work in the strict sense occur "on occasion or as a result" of
work, providing the accident at work with a large legal expansion force that implies an
iuris tantum presumption of the existence of such a link between injury and work when
injuries are manifested during the working day in the workplace. However, in
occupational diseases, the causal link is direct, requiring that work be the genuine and
exclusive cause of the disease, without the simple occasionality. Therefore, it is not
enough that the work can promote the development of the disease, but it must be the
triggering fact18. The direct causality required in cases of occupational diseases is of
some probative complexity, as the cause of the disease can be diverse and complex to
determine, being extremely difficult to demonstrate that the sole cause of the disease is
work. Such difficulty would be mitigated by the application of the presumption of
employment in paragraph 3 of Article 156 of the TRLGSS, which provides "that the
injuries suffered by the worker during time and in the place of work shall be presumed,
unless evidence to the contrary, constitute an accident at work". This is a genuine
presumption iuris tantum, so that if the worker proves that he has suffered an injury in
time and place of work, the working nature of the same is proven, unless evidence is
presented to discredit the causal connection, which implies an reversal of the burden of
proof, that is, whoever pretends that the contingency is not recognized as working must
prove the absence of a relationship between the ailment and work. However, it appears
from the wording of Article 156.2(e) TRLGSS that occupational diseases are not without
the iuris tantum presumption of Article 156.3 TRLGSS, this would mean some
contradiction between them, whereoever Article 156.2 TRLGSS provides that diseases
contracted in connection with the performance of the work are only considered to be
labour "provided that it is established that the disease had as its sole cause the execution
of the same", so it could be said that the legislature does not grant this the benefit of the
presumption. In fact, certain court rulings support this interpretation19. However, the
application of the presumption of employment set out in Article 156.3 TRLGSS has been
17
MARTIN VALVERDE, A, "The accident at work: training and development of a legal concept", in
GONZALO GONZELEZ, B. and NOGUEIRA GUSTAVINO, M. (Dir.), VV.AA., op. cit., pp. 230-231.
18
The doctrine co-is consistent in stating that the causal link in occupational diseases is much stiffer
and narrower than in the accident at work. Vid, among others, GANDIA LOPEZ, J., "Article 116",
Concept of occupational disease, in ALARCON CARACUEL, M. R. (Dir.) and RODRÍGUEZ RAMOS,
P. T. (Coord.), Comments to the General Law on Social Security, Aranzadi, Pamplona, 2003, p. 769
and RODRIGUEZ-PIÑERO, M., "Occupational Diseases", Labor Relations, 1995–II, p. 22.
19
The Supreme Court's Judgment of 24 May 1990 said: „It is not enough for the disease to be
externalized at work, since the presumption of labour of art is not privileged for Article 115.3 LGSS
[before, on the contrary, the rule requires express proof of causality], having stated in that regard that
the Chamber 'the fact that a disease of common aetiology is disclosed externally in the exercise of the
employment occupation does not simply give it the legal characteristic of an accident at work, in so far
as the effective influence of that work exercise on the occurrence of the reference pathology is not
demonstrated“.
252
the most important way to attribute occupational accident consideration to common

diseases with possible connection to work and, in particular, to heart injuries. As the STS
of 27 December 1995 shows, there are numerous judgments which have affirmed the
application of the presumption of employment 'not only to accidents in the strict sense or
injuries caused by the sudden and violent action of an external agent, but also to diseases
or alterations of vital processes that may arise at work caused by internal or external
pathological agents' , inter alia, the SSTS of 27 October 1992 and 15 February 1996.
Certain judgments indicate that the presumption of employment persists even if there had
been a history or symptoms of the disease on or at immediately preceding times20. In
addition, there are judicial decisions concerning the destruction of the presumption of
employment of the occupational disease arising in the time and place of provision of
services, in this regard the STS of 16 December 2005 states that for this purpose it is
necessary that „the lack of relationship between the injury suffered and the work carried
out is sufficiently established, either because it is a disease that by its very nature
excludes occupational aetiology, or because facts that undermine this causal link are
inferred“ and that „the condition of congenital ailment shows that its genesis does not
guarante any relationship with work“, and „the crisis could have been triggered at any
time and place“. The lack of jurisprudential agreement on the application of the
presumption of employment of Article 156.3 TRLGSS has created some legal
uncertainty in this regard. A more successful solution would be to qualify as a work
accident in accordance with Article 156.1 TRLGSS and the broad concept of bodily
injury, diseases that manifest themselves suddenly and violently, cases in which the
above presumption of employment applies and where the causal link is more flexible
(myocardial infarctions, brain haemorrhages, etc.) and accident at work under Article
156.2(e) TRLGSS, slow and progressive diseases, in which case proof that the disease
has been caused exclusively by work would be required21.
2. Intercurrent diseases: a jurisprudence view
Article 156.2(g) TRLGSS provides that they are considered an accident at work
"the consequences of the accident that are modified in their nature, duration, severity or
termination, by intercurrent diseases, which constitute complications arising from the
pathological process determined by the accident itself or originate from conditions
acquired in the new medium in which the patient has been placed for healing".
In these cases there must be an accident at work that in its development will be
affected by diseases that alter the effects of the accident itself. These alterations can
20
The judgment of the High Court of Justice of Murcia of 17 February 1997 says „to undermine the
presumption of labor of a work disease is not enough that symptoms would have occurred at dates or
moments immediately preceding the episode of acute heart attack", "the labority of the heart attack,
even if there is a history of heart and coronary heart disease, is not called into question if it is not
conclusively established that the trigger element is due to causes strange to the employment
relationship“.
21
FERNÁNDEZ COLLADOS, M. B., „Occupational Diseases“, Spanish Journal of Labour Law, No.
146/2010. BIB 2010\585, p. 9.
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occur with the accident itself or within the worker's healing process. These diseases
therefore occur as a result or after the accident.
In the event that disability comes from a number of cases, the case-law has
considered that a unitary assessment should be carried out, because the protection of
social security in these situations is provided in a unique and undifferentiated way
"without it being possible to establish differences or distinctions as to its protection.
This means that the lumbar disease suffered by the actor, has to be incardinated in
subparagraph (g) above, because for the purposes we treat, it must be classified as
"intercurrent disease", since being one of the causes of the Temporary Disability
analyzed, it modifies in its severity the consequences of the accident by strengthening
and making more vigorous the inability to work of the actor , and is a complication of
the pathological process of the same22.
Intercurrent diseases are diseases that are not directly related to work but appear in
the healing of the accident. The existence of an accident is required and the disease to
arise in its treatment. The existence of intercurrent diseases has been estimated: (a) in
the event of a fractured accident that determined the granting of partial disability and as
a result of such trauma the injured worker suffers from post-romantic syndrome
aggravated by diabetes, and hypertension in the lower right limb23; (b) in an accident
consisting of costly and lumbar concussion and the onset of knee pains with a
diagnosis of menisiscopathy and a depressive process constituting absolute disability24.
In case-law practice, there are very few judgments in relation to Article 156.2(g)
TRLGSS because of the complexity of the diagnosis of so-called intercurrent diseases
in practice. These diseases differ from diseases or defects aggravated by the accident in
that in the first case the accident predated the disease, while in the second the accident
is subsequent to the disease suffered, although in practice the distinction between the
two cases can be very complex, in fact, some court rulings have been resolved by
relying on both precepts to qualify the same case25.
Conclusion(s)
The Spanish legal system distinguishes between working diseases, occupational

diseases and common diseases. Occupational etiology diseases are assimilated within
the concept of work accident. The elements of the accident at work are bodily harm,
the status of employed or assimilated person of the person who suffers it and the causal
link between bodily harm and work. The body damage of the work accident includes
both physical and psychic damage and can occur suddenly or evolutionaryly. Worker
injuries during time and workplace are presumed to constitute an accident at work.
Occupational disease is contracted as a result of the work carried out in the activities
listed in the table approved by RD 1299/2006, provided that it is caused by the action
22
STS of 10 July 2007 (RJ 2007,8869).
23
STS March 23, 1989 (RJ 1989,1926).
24
STSJ of Asturias of December 18, 1998. (AS 1998,4412).
25
Among others, the STSJ of Castilla-La Mancha of 13 March 1996.
254
of the elements or substances indicated in that standard for each of these diseases.
Occupational diseases that are aggravated or manifest as a result of a work accident are
considered an accident at work.
Bibliography:
1. FERNÁNDEZ COLLADOS, M. B., „Occupational Diseases “, Spanish Journal of
Labour Law, No. 146/2010.
2.FERNANDEZ LOPEZ, M.F.: "Accident of work and causal link" in GONZALO
GONZALEZ, B. and NOGUEIRA GUASTAVINO, M. (Dir.), VV.AA., One Hundred
Years of Social Security, Madrid, Fraternity – Muprespa and UNED, 2000.
3. GANDIA LOPEZ, J., "Article 116", Concept of occupational disease, in ALARCON
CARACUEL, M. R. (Dir.) and RODRÍGUEZ RAMOS, P. T. (Coord.), Comments to the
General Law on Social Security, Aranzadi, Pamplona, 2003.
4. MARTIN VALVERDE, A.: "The accident at work: training and development of a legal
concept", in GONZALO GONZALEZ, B. and NOGUEIRA GUASTAVINO, M. (Dir.),
VV.AA., One Hundred Years of Social Security, Madrid, Fraternity – Muprespa and
UNED, 2000.
5. MARTINEZ BARROSO, M.R., Diseases assimilated to the accident at work in the
doctrine of the Courts, General Council of Official Colleges of Social Graduates of
Spain, Madrid, Forum Collection of Social Law, 2004.
6. MONEREO PEREZ, J.L. AND FERNANDEZ AVIS, J.A.: "Determination of Social
Security contingencies. (Critical review of the political-legal sense and technical
delimitation of professional contingencies)", Aranzadi Social Doctrinal Journal, No. 19,
2008.
7. RODRIGUEZ-PIÑERO, M., "Occupational Diseases", Labor Relations, 1995–II.
8. ROMERO RÓDENAS, M.J., The accident at work in judicial practice, Albacete,
Bomarzo, 2nd ed., 2017.
9. TASCON LOPEZ, R.: The accident at work in mission, Valencia, Tirant lo Blanch,
2010.
255
Conference Paper
BRIEF CONSIDERATIONS ON THE IMPORTANCE

OF EVIDENCE IN CASE OF TRAFFIC OFFENSES
IN THE REPUBLIC OF MOLDOVA
Marian RUSSO*
Nicolae SCURTU**
Abstract: The defense of social values through the norms of contravention law requires
the need to establish and prove faithfully the facts that constitute a contravention, so that the
highlighting of guilt is dependent on the evidence administered in the cases. The specificity of
the contraventions to the road traffic regime in the Republic of Moldova and the jurisprudential
crystallization impose an integrated approach of the problems and legislative solutions
necessary to ensure all the guarantees regarding the application of the principles of
individualization of the contravention liability. Adoption by the legislature of the Contravention
Code of the Republic of Moldova by Law no. 218-XVI of 24.10.2008 constitutes the common law
in contravention, but also the sanctioning framework for the violation of the norms regarding
the traffic on public roads, beyond those regarding other types of social relations regulated by
legal norms
Keywords: contravention law, road contraventions, probative, road traffic, issue.
Introduction
The adoption of the Contravention Code of the Republic of Moldova is part of the
process of judicial reform and effective harmonization of national legislation with the
acquis of the European Union, which establishes the guiding principles in
contravention structurally configuring the fundamental criteria necessary to be
considered for a contravention to be considered legally ascertained and sanctioned.
The evidence is the central element through which the ascertainment of the
existence or non-existence of a deed of contravention nature is sought, by which
establishing, without denying, the person of the perpetrator, the elements regarding the
guilt, but also the significant circumstances of committing it. The quality of the
evidence also directly influences the judicial control that can be exercised over the act
of finging and sanctioning the contravention.
The inaccuracies and criticisms brought by the legal specialists regarding the
deficiencies found in the application of the provisions of the Contravention Code,
constitute grounds for proposals of law ferenda, pursuing efficient and predictable
* Ph.D Student, University of European Studies of Moldova, Iasi (Romania), jurist.russo@yahoo.ro.

** Ph.D Student, "Stefan cel Mare" Academy of the Ministry of Internal Affairs of the Republic of
Moldova, Chisinau (Republic of Moldova), scurtu200bmw@bk.ru.
256
mechanisms for regulating the social relations limited to the contravention matter, strict
reformt, especially in the field of road traffic in the Republic of Moldova.
The performance by the courts of the legality control over the acts of finding and
sanctioning the contraventions, implicitly of the road ones, supposes both the analysis
of the observance of principles of contravention law regarding the deed the nature of
guilt, the legal classification of the deed, and the correlation of the factual situation
retained with the evidence in support of it.
The contemporary stage of knowledge
The contemporary doctrinal and jurisprudential stage of the Republic of Moldova

is characterized by the approach of practical issues arising from the assimilation of
criminal matters, being subject by analogy to the rules of the Code of adoption of a
criminal matters, being subject by analogy to the rules of the Code of Criminal
Procedure, which, on the one hand, requires the adoption of a criminal procedure code,
normative framework in which to find distinct rules regarding the contravention deeds
of road origin.
The similarity between the legal structure of the crime and that of the
contravention concern both the existence of an individualized legal object, respectively
the social value protected by the rule of law, the determined material object that resides
in the materiality of the legal object, the existence of an active subject in the person of
the offender, but also a passive subject, this being represented by the injured person
(who suffers the result of the contravention), an objective side charactized by the illicit
conduct associated with the consequence produced by it, as well as a subjective side
regarding the psychic representation of the offender regarding the act committed in the
illicit spectrum.
It is obvious that the material element of the objective side can be bot hand action
and a passive/ inactive posture.
The rule of law is the one that faithfully designates the illicit act that constitutes a
contravention, the burden of proof always falling on the ascertaining agent and not on
the contravener, so that the evidence, especially in the matter of road contravention, is
paramount not only the eventuality of the judicial control of the santioning acts adopted
in the author’s report.
The Contravention Code of the Republic of Moldova, in art. 440 para. (1),
characterizes „the finding of the contravention (n.n.) as the activity, carried out by the
asertaining agent, of collecting and administering the evidence regarding the existence
of the contravention, the decision on the examination of the contravention on the basis
of the finding of the infringing agent or the report on the contravention, the application
of the santion of the contravention or the referral of the file, as appropriate, to the
afficial authorized to examine the contravention case, within the authority in court or in
another body for settlement”.
The economy of this text shows that Moldovan legislator sought to eliminate
administrative – jurisdictional or judicial situations that violte the principle of equality
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Conference Paper
of justice, the right to defense, fre access to justice, the right to a fair trial and limited to
the presumption of innocence, impartiality and equality of justice.
The legislator by enacting the norm of article 442 of the Contravention Code from
Republic of Moldova stated that „The report on the contravention is an act by which
the illicit deed is individualized and the perpetrator is identified”. The report is
concluded by the ascertaining agent based on the personal findings and the
accumulated evidence, in the presence of the perpetrator or in his absence, thus
pursuing the valorization of the evidence able to prove „the fact of the violation of the
legislation, including those ascertained with the help of the certified techincal means”.1
The recognition of judicial control over decisions on traffic offenses meets the
requirements of the community for a fair trial, ensuring, through the possibility of
reassessing evidence directly, the concrete establishment of the conduct and person of
the perpetrator, the content of the alleged act, committing and guilt
Thus, with reference to the case of the European Court of Human Rights ‚Ioan Pop
v. Romania”, specifically referring to paragraph 27, we note that, regarding the
sanction of contravention in the matter of traffic on public roads, the legal regime
recognized is analogous to criminal within the meaning of art. 6 of the Convention,
which must be treated from the perspective of its „criminal” character, being
recommended, in the light of the provisions of art. 2 paragrapgh 1 of Protocol no. 7 of
the Convention, the recognition of the dual degree of jurisdiction and in matters of
contravention.
The importance of evidence in contraventions is also closely linked to the
elimination of causes of unjust repression by unfoundedly accusing a person or in the
absence of evidence capable of not directly undermining fudamental human rights to
dignity, honor or freedom2.
In this sense, the constant jurisprudence of the European Court of Human Rights
embraces the conclusion that the contravention is assimilated to the accusation in
criminal matters, so tha the offender is recognized and protected the presumption of
innocence, relevant in this regard the Angel case against Romania (october 4, 2007),
the ascertaining agent, as well as the courts being therefore required to play an active
and effective role in finding the truth. Or, as long as the contravention is treated as
being uder the incidence of art. 6 of the Convention for the Protection of Human Rights
and Fundamental Freedoms, persons under public law recognized as investigators
have, on the one hand, a general obligation to play an effective active role in the
establishment of corresponding sanctions of the facts, and on the other hand the
obligation to administer, indicate and, depending on the context, to preserve, any
useful, conclusive and pertinent evidence in support of the legality and validity of the
report of finding and sanctioning the contravention.
The burden of proof established in the report by the ascertaining agent aims at
maintaining a real balance between the presumption of innocence recognized to the
1
Pct. 14, lit. d off Annex no.1 to the Decision of the Government of the Republic of Moldova no. 357 of
May 13,2009 - https://www.legis.md/cautare/getResults?doc_id=124130&lang=ro#
2
Charter of Fundamental Rights of the European Union, https://fra.europa.eu/ro/eu-charter/article/1-
demnitatea-umana
258
offender and the presumption of legality towards the record of finding and sanctioning
the contravention.
The evidence, including in the hypothesis of contesting the decisions regarding the
examination of the contravention, presents importance on the court’s ability to ensure
the verification of the legality of the report drawn up by the ascertaining body, but also
of the reality of the fact retained and ascertained directly by it.
The credibility of the factual situation described in the record of finding the
contraventions must exceed the preconceived perception determined by the mediation
os a state agent in the recording activity - „ex propriis sensibus”, even if, individually
viewed, the ascertaining act benefits from the relative presumption of legality, but also
from the veracity regarding the elements retained in its descriptive part. The credibility
mentioned must be built only on truth, truth that must be proven beyond any trace of
subjectivism, so that the offender’s task of proving the contrary of the facts imputed to
him does not become an anachronistic formalism and impossible to achieve through
formalist constraints, bureaucratic and authoritarian. The impossibility to propose or
administer new evidence in order to find out the truth in question is a real violation of
the Convention, but also of the provisions of the Constitution of the Republic of
Moldova regarding equality before the law.
In the spectrum of bureaucratization, tangentially in the first place, those multiple
regulations and similar attributions recognized in the field to different public
authorities are also criticizable, an excessiveness that is equivalent to an excessive
contravention.3
From a procedural-contraventional perspective, the active role of the ascertaining
agent must be dual, being required to recognize and facilitate the means of indicating
the evidence by the offender in contradiction with those stated and retained in the
ascertaining document, objections that may constitute legitimate support in overturning
the presumption of validity of the record of the contravention, in finding out the truth.
Objections in this litigious context may prove the offender’s claims, but, in judicial
terms, they may generate the administration of evidence from which to result a
different factual situation than the one recorded of the contravention.
Evidence, in the light of recent case law of the courts of the Republic of Moldova,
allows the individualization or reindividualization of the sanction, depending on the
limits provided by the sanctioning legal framework and, in particular, in the proportion
required by the degree of social danger of the alleged acts.
In the matter of traffic offenses, we notice the need to pay more attention to the
common guilt in road accident cases, one of the characteristics of guilt, from the point
of view of volition, is the violation of due diligence, prudence, whose observance it
would have removed the illicit character.4
A significant number of road traffic offenses involving various road users,
including pedestrians, are based on the concurrent fault of both parties (the offender
and the injured party). According to the normative framework in force, all participants
3
Mircea Ursuţa, Contravention procedure, Universul Juridic Publishing House, Bucharest, 2010, p. 86
and next.
4
George Antoniu, Criminal guilt, Romanian Academy Publishing House, Bucharest, 1995, p. 160
259
Conference Paper
in national and international road traffic in the Republic of Moldova have the
obligation to have adequate conduct top revent any violation of road safety, in a
manner sufficient to not endanger bodily integrity or the life of persons or the harm
private or state property.
Different factual situations reveal the existence of competing fault of the traffic
participants, on the background of the lack of unpreventive conduct in special and
specific traffic contexts, spects that, in practice, are ignored in establishing by the
ascertaining agent the reality and social danger attracted by the imputed facts. Through
the detailed analysis of the concrete factual situation and through the fair appreciation
of the mechanisms involved in committing the facts circumscribed to the contravention
norms, it would be obtained the removal of some corresponding sanctions or the
establishment of milder ones.
In establishing the existence of common guilt, beyond the admissible technical
means, the evidence with witnesses is one of the means of evidence frequently used in
criminal proceedings. The statements of the witnesses of the road event provide the
ascertaining body or the court with important elements for establishing the
circumstances or conclusive facts, thus obtaining a fair individualization of the
contravention, with a clear indication of the active subjects and thei concrete
implications.
Conclusions
We conclude in the direction of the urgent need to regulate the procedural norms
in contravention that imply the importance of the evidence in forming a legal liability
based on the individual guilt of the perpetrators of the facts circumscribed to the norms
of contravention law between the event produced and the personal cause generating.5
In the presence of a real autonomous character incident to the contravention
liability,6 the need to regulate the specific construct of guilt with a distinct social and
legal significance is claimed, that of criminal guilt.7
This insufficient regulation is also found in the Romanian legislation, subject to
which prodigious authors have commented on the need to adopt an institutional
construct distinct from the contravention matter, considering that the special regulation
on the notion of guilt affects, by analogy, the rule of Article 19 of Criminal Code,
which, however, does not define guilt, but exclusively its forms.8
Although, in general, the criminal procedural norms are used in the contravention
procedure of the Republic of Moldova, in accordance with the jurisprudence of the
5
Igor Trofimov, Substantiation of the contravention procedural law, Socio-human sciences, 18th edition,
no. 2, 2018, p. 79-85
6
Ovidiu Podaru, Radu Chiriţă, The legal régime of contraventions. Government Ordinance no. 2/2001,
Hamangiu Publishing House, Bucharest, 2019, p. 1.
7
Elena Comarniţcaia, Contravention liabili as a way of state coercion in the field of law enforcement,
Doctoral thesis in law, Chisinau, 2012, pp. 50-59
8
Gheorghe Nistoreanu, Alexandru Boroi, Criminal law, The general part, All Beck Publishing,
Bucharest, 2002.
260
ECHR, respectively in consideration of the reference norms from the Contravention

Code – art. 425 on the means of proof and the corresponding procedures, the
complexity of the spectrum of contravention and its particularities, legitimizes our
opinion that, especially in road matters, the need to adopt its own special or general
procedural rules to meet the highest Community rigori is one stringency.
Bibliography:
1. Mircea Ursuţa, Contravention procedure, Universul Juridic Publishing House,
Bucharest, 2010.
2. George Antoniu, Criminal guilt, Romanian Academy Publishing House, Bucharest,
1995.
3. Igor Trofimov, Substantiation of the contravention procedural law, Socio-human
sciences, 18th edition, no. 2, 2018.
4. Ovidiu Podaru, Radu Chiriţă, The legal régime of contraventions. Government
Ordinance no. 2/2001, Hamangiu Publishing House, Bucharest, 2019.
5. Elena Comarniţcaia, Contravention liability as a way of state coercion in the field of
law enforcement. Doctoral thesis in law, Chisinau, 2012.
6. Gheorghe Nistoreanu, Alexandru Boroi, Criminal law, general part, All Beck
Publishing, Bucharest, 2002.
261
Conference Paper
THE EVOLUTION OF THE PROCESS

FOR IMPLEMENTING PUBLIC EDUCATION
STRATEGIES AND POLICIES.
CURRENT CHALLENGES AND TRENDS
Gabriela ŞERBU*
Abstract: Over the last decades, most European countries have tried to align themselves
with the new demands and challenges through various reforms of education systems at national
level, seeking to achieve a fair balance between the principles of diversity, quality, equity,
effectiveness and local government competences. and the central one and the autonomy of each
educational institution, the final goal being the achievement of an adequate education that has
as finality a graduate able to easily enter the labor market, in the context of its constraints and
accentuated dynamics.
Keywords: public policy, educational strategy, education and training.
Introduction
In today's Europe there is a risk of weakening social cohesion for several reasons,
the most important causes being the distrust of the population in state institutions,
unemployment of a considerable part of the population and especially young people,
violent conflicts taking place in some parts of the continent, nationalism, corruption
and the growing gap between rich and poor.
In this context, there is the issue of strengthening the social cohesion that is
needed at different levels of society, especially to guarantee equality of all citizens in
terms of access to education, active participation of all citizens in social, economic and
cultural life and social dialogue between different groups and nations.
Vocational education and training is taking place in the context of increasing
mobility, on an international scale, of pupils, students and employees, amid the
growing awareness of the impact of new technologies, at a time when there is a radical
change in work in parallel to the emergence of a European labor market and
multinational enterprises, at a time when training can no longer be limited to certain
periods in the life of the individual, this being necessary to take place throughout life
(long life learning), education can no longer be achieved without the participation of
the local community.
All these aspects have made European educational policies and strategies
primarily focused on education in the spirit of social cohesion and democratic
citizenship. In today's society, national education systems have to face multiple
challenges, evolutions and problems related both to their own field of local education
* Ministerial adviser, Ministry of Education (Romania); PhD student, National School of Political and
Administrative Studies, gabriela.serbu12@gmail.com.
262
and to society as a whole. In this context, the role of education as a factor that
essentially contributes to social cohesion is constantly growing.
Education can contribute in various ways to social cohesion and democratic
citizenship. Education for active and conscious citizenship starts at school and
continues throughout life by promoting the following core values: reason and
objectivity, insertion, sense of responsibility, tolerance, as opposed to subjectivity and
irrationality, exclusion, passivity, predisposition to conflict.
However, we must be aware that education is not a universal panacea and cannot
solve the multitude of problems of society alone.
At present, education is no longer strictly limited to youth, education and lifelong
learning (long life learning) becoming fundamental requirements of today's society and
essential elements of the education system.
1. Challenges and trends in the evolution of European education systems
The educational process is less and less closed in a given space-time, as it was in
the past.
For many pupils and students, the problem of where they study is no longer so
important. The major issue today is what and how to learn, as well as the issue of
developing everyone's talents and skills. For this reason, the emphasis in the education
sector is increasingly on demand and less on supply.
The first factor of social integration is employment. Today, however, the labor
market is more flexible and dynamic. It is becoming increasingly clear that there is no
guarantee of a job for life. These changes have the effect both that they affect the very
character and organization of work but also that they cause the disappearance of a large
number of trades. The labor market requires the acquisition of new skills both at the
individual level and at the scale of the enterprise, which implies the need for a
permanent updating of individual skills.
Over time, various models have emerged to combine education with lucrative
activities (practice) that erase the traditional line between initial or post-initial training
or in business and education.
Thus, new learning methods have been introduced or are being created, which are
based on the autonomy of the education system and the development of the pre-
university institution and the university education institution as information and
knowledge managers. However, today the school and the university are no longer the
final destination in terms of the educational route. They are on the way to integration
into a system of lifelong learning. In general, education is considered to be the tool that
must stop social disintegration. However, most countries are currently facing the
problem of school failure and early school leaving. According to some international
surveys, the dropout rate in some education systems is quite high.
Absence from the educational process and premature dropout are often the first
form of rupture with social structures, society and these phenomena can lead to social
exclusion. Against the background of the considerable reduction of the educational
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Conference Paper
function of the family and of the local communities, the increasing role and
responsibility of the educational system in this issue becomes a social necessity.
In order to combat the phenomenon of school failure, education could contribute
to social cohesion, guaranteeing each person basic skills that will enable them to have a
sufficient income to live decently, to have an independent life and to participate in the
life of society and to make a contribution to society. In order to ensure the application
of the principle of equal opportunities for all social categories, the solution is not to
diminish the level of education but to diversify it, in order to strengthen the capacity of
each educational institution to respond to the specific requirements of its social
environment.
This diversification can be achieved in several ways: a more innovative and less
academic education, based on new pedagogical methods that favor the autonomy of the
learner, as a result of the use of new communication and information technologies; At
this point, priority is given to the issue of equity, quality and effectiveness in education.
In order to achieve the desired result, the whole education system must rely on a
very high level of quality. In any developed society a quality education system allows
everyone to develop and amplify their own skills. The guarantee of the quality of the
educational system is given by the public authorities.
They must identify mechanisms to ensure, and thus guarantee, compliance by each
educational institution with quality standards.
Quality standards no longer fall exclusively within the competence of educational
authorities and institutions. They define the direct relationship with other factors
involved in education and training. The need to develop national or international
quality standards in the education system can be recognized by all. It is accepted by all
that equity is a precondition for social cohesion, and the lack of equal opportunities in
access to education would lead to exclusion, ie to the undermining of social cohesion.
Every individual has the right to have access to a quality education. However, the
fundamental issue of education remains equal opportunities. Today, pupils, students
and parents, have a more critical point of view in relation to the results offered by an
educational system and, in conclusion, have considerable demands on the educational
systems. They believe that pre-university and university education institutions should
be responsible for the quality of services provided.
In other words, it is considered that the evaluation process must include both the
activity of the pupils or students, as well as the administration of the respective
institution, its democratic spirit and its educational climate.
In several countries, higher education institutions are increasingly autonomous in
terms of evaluation, tending to a balance between an external control performed by an
evaluation body and an internal evaluation process (or self-evaluation). However, more
and more states are raising the issue of completely redefining the role of evaluators in
the education system. An increasing number of governments consider the self-
assessment of educational institutions as an important element of the analysis process,
but this implies an increase in institutional capacity for self-assessment.
New skills are needed for integration in Europe, which must be held by both
individuals and society as a whole. The main competencies are: cooperative spirit,
entrepreneurial spirit, language skills, ability to use new communication and
264
information technologies, ability to collaborate with colleagues of different national

and cultural background, ability to organize one's own work autonomously, ability to
solve problems, communication skills, life in society and participation.
In view of the above, in recent decades most European countries have sought to
align themselves with the new demands and challenges through various reforms of
education systems at national level, seeking to strike a fair balance between the
principles of diversity, quality, equity, effectiveness, as well as between the
competences of the local and central administration and the autonomy of each higher
education institution.
All the reforms mentioned above have focused on several specific directions,
which can be summarized as follows:
• financing education and training in its various forms;
• reorienting the objectives of education and programs towards the expected
results within the various educational processes, in terms of skills, abilities and
knowledge;
• the status and training of teachers, given that these are important factors in
promoting reforms;
• active insertion in the educational system and equal opportunities in terms of
access to education;
• improving the quality of education, elaborating the modalities of objective
evaluation of each student, university teacher, of the higher education institution, as
well as of the higher education system on a national scale and redefining the role of
evaluation;
• orientation of university education institutions towards the requirements of
their specific environment;
• autonomy of university education institutions.
Practice has shown that reforms and their implementation take time and do not
always lead to the expected results, that any reform must be done with the active and
real participation of all stakeholders and be based on an optimal consensus of all
involved.
2. National policies in the field of education. Evolution and trends
The beginning of the higher education reform in Romania is identified with the
transition from the post-December period to the liberalization of all fields of activity in
the economy and was put into practice by developing mechanisms to ensure the quality
of curricula, each reform being influenced by the political actor and its instability.
Thus, the multiple changes on the political scene also marked the first weak point in the
evolution and predictability of the Romanian higher education system determined by
frequent legislative changes, some of them contradictory and lacking the probability to
produce positive effects.
The main public policies adopted in the period after 1990 were reflected in the
main reforms undertaken in university education, put into practice by normative acts:
Education Law no. 84/1995, its modification from 1999 bringing changes regarding the
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financing of higher education, by moving from financing based on input indicators, to

financing according to the number of students enrolled based on quality indicators ”,
Law no. 441/2001 for the approval of the Government Emergency Ordinance (GEO)
no. 133/2000 regarding the university and post-university education with fee, with the
subsequent modifications, which allowed the state universities, starting with 2001,
that, besides the students on the places financed from the budget, to admit students in
fee regime.
After 2000, both under the pressure of globalization and EU integration, the need
to implement a reform to support the internationalization of Romanian higher
education began to emerge, a reform that began with the adoption of the Bologna
Process and continued with the adoption in 2011 of a new law on education, the
National Education Law.
The entire reform process that led to the adoption of this law involved a series of
analyzes and consultations with universities, various structures with expertise in
education, specialists and experts in education, other stakeholders, the approach itself
being an act of political commitment.
Even if the new education law brought a series of major beneficial changes in
education (eg funding and decision-making mechanisms in the university education
system, referring to the distribution of subsidized places, correlation of the educational
offer with the labor market, integration of students within the structures doctoral
schools, the possibility of greater involvement of the business community in supporting
the university environment, classification of study programs), however, the lack of
studies of a certain complexity on the implications and effects of new changes, studies
that had to be carried out over a period time and required the use of tools and
predictive methodologies, made the two education laws to support no less than 60
additions and amendments, each of the 23 ministers of education in this period
bringing at least one change.
Even if the National Education Law has undergone a series of amendments and
completions, a number of substantive problems could not be solved, with a major
impact on the education system: unsatisfactory level of training of some teachers, high
dropout rate, decrease in number of studied disciplines, modernization of learning
methods, focus on ensuring transversal competencies, etc.
The policies and strategies developed at the level of higher education in Romania
have been aligned with those existing in the European Union, the main strategy to
which all European states have aligned being "Strategy to promote Member States'
convergence in education" ("Europe 2020" - Education and Training, ET, 2020), a
strategy that was developed in 2010 in Copenhagen.
The indicators to be met in the field of education by Romania, according to the
Europe 2020 Strategy, are: a. The share of people with higher education in the total
young population for the age group 30-34 years; b. the rate of premature abandonment
of university education in Romania.
Among the 9 national strategies developed by Romania in the context of
alignment with European strategies, we mention: "National Strategy for Research,
Development and Innovation (SNCDI)", 2014-2020; "National Strategy for Tertiary
Education (SNÎT)", 2015-2020.
266
In accordance with the "White Paper on Education and Training", created by the
European Union, education policies in Romania place on an important place the
achievement of the "educational society", which effectively capitalizes on human
resources, through the following actions: lifelong learning, civic participation and
social responsibility, increasing the role of expertise in decision making, increasing
individual motivation for personal learning and emancipation, widespread access to
any form of knowledge, expanding the media.
This new type of society (called the "Knowledge Society" in the European Union)
involves new approaches to educational policy. The past paradigms of education for all
and of selection by exclusion are replaced by a new policy that involves reconciling
two seemingly incompatible priorities: education for all and education for everyone. In
this sense, it is necessary to initiate and develop the following steps: wide access to
education and training services, expanding the educational function of society to a set
of training institutions (school and university, but also the media, institutions,
communities, family, NGOs, companies), lifelong learning, tailor-made education,
according to interests and skills, postponement of selection and exclusion from the
education system.
Each governing program undertaken by each party that has ruled in recent years
has sought to make Romanian society an educational society in the sense defined by
the European Union. For this they proposed: education as national property;
institutional and political coordination; adult education and lifelong learning. They
also aimed to restore and strengthen the social position and status of education staff, by
recognizing and stimulating moral and material values, an action that has been carried
out, especially in recent years (eg. salary increases for staff in education). education,
the refund of the amounts owed by the state to the teaching staff by Law No. 85/2006).
The directions of action established for the provision of lifelong learning and the
construction of the educational society were defined as follows: a. Adequate support of
the educational system (public support, political support, financial resources); b.
coordination of externally funded programs, so as to avoid parallels, methodological
disagreements and excessive dependence on external resources, segmentation on
insignificant projects; c. defining the legislative framework for lifelong learning and
adult education; d. institutional coordination of the main actors of the educational
processes (public institutions, civil society, innovation and development centers, social
partners); e. diversification and expansion of the offer of lifelong learning; f. the
inclusion of training and education as an essential component in all development
programs in the economy as a whole and in its branches.
It is good to know that the set of measures to achieve the standards for increasing
the competitiveness of the Romanian workforce and European integration have as their
origins the superior performance of learning. For this reason, improving the overall
performance of all pupils and students must be a major priority of national policies
promoted by the state.
In this perspective, the following potential measures have been identified:
stimulating the motivation of pupils and students, forming qualifications based on real
competencies, representing more than formal certificates or diplomas, moving to
another quality control system in university education, by examinations focused on
267
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performance and formative assessment, not on the reproduction of knowledge, their

association with the management and organization of the learning process, focusing on
long-term results, not on performance currently usable, exclusively in academia
(teaching only for examination and memorization , note learning, the dominant
recourse to intellectual processes with short restraint).
Studies and analyzes carried out by both state authorities and private institutions
have shown that a development of Romanian education must consider, first of all, a
relaunch of education in rural areas, which can be put into practice by: establishing a
school transport networks, re-dimensioning of the school network, endowment of
schools with modern means of education, provision of schools with qualified teachers,
endowment of schools with information and communication networks, endowment of
school libraries, etc.
The priorities identified for the Romanian higher education were centered on four
distinct directions of action: the quality of higher education, the internationalization of
higher education institutions, the reduction of dropout from higher education and
equal access and participation in the education process.
Conclusions
A successful national economy is supported by a well-defined national policy on

education, by subsequent educational strategies and policies well-founded by studies
and system analyzes, taking into account all actors involved in the process.
The coherent, rigorous and unitary development of specific activities within
educational institutions, with a direct impact on the quality of the educational process
presupposes the existence of educational strategies and policies built in relation to the
reality and development needs of the education system and whose application is
supported by instruments appropriate to the purpose pursued.
The harmonization of the educational strategies and policies proposed by the
central public administration in each school / university year with the regulatory
framework makes the effect of the proposed measures to be amplified, and the results
obtained to be in accordance with the proposed objectives.
The finality of the whole approach is represented by an education system at
European standards supported by an adequate legislative framework, well-trained
graduates able to easily enter the labor market.
The elaboration and adoption of educational strategies and policies that are as
coherent as possible and with the greatest possible effects on the education system
presupposes, on the one hand, the existence of prior information in the fields of future
interventions and, on the other hand, predictive information on the results of the
implementation of the intervention (public policy or strategy).
268
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269
Conference Paper
HISTORICAL PERSPETIVE OVER THE ORIGINS

OF EUROPEAN UNION’S COMPETITION POLICY
Andrei ALECU*
Abstract: This paper aim to offer a brief overview to the primary evolutionary stages of
the competition policy within the European Union. We present the main circumstances faced by
the inceptive member states when first adopting a competition policy, then sees the evolution of
the main aspects covered – the extensive development from forbidding hard-core price fixing
and cartelization practices to instituting a merger control regime for economic concentrations.
Finally, we outline what were the main amendments to the competition policy through the
incipient years and conclude that the Commission shall endeavor to achieve the primary
purposes promoted in the European treaties also when facing new challenges.
Keywords: Competition policy, historical evolution, merger control.
Introduction
European Union (‘EU’) competition law consists of a set of legal and economic
principles that have been commonly established by Member States in order to promote
shared values and to enable economic development and free trade among them. The
principles of competition law are set out in EU's founding documents and shall be
deemed considering the bigger picture of the whole European legal framework. For
example, the Treaty on European Union (‘TEU’) and the Treaty on the Functioning of
the European Union (‘TFEU’) state that the Union is founded on the values of respect
for human dignity, freedom, democracy, equality, the rule of law, as well as respect for
human rights, including the rights of persons belonging to minorities1, and further
outlines the common values2: the well-being of its peoples, the creation of an internal
market, acting for the sustainable development of Europe, based on balanced economic
growth and price stability, a highly competitive social market economy3, with Member
States and the EU having a duty to act in accordance with the principle of an open
market economy, with free competition, favouring an efficient allocation of resources4.
Starting from the common grounds covered by the most global competition
policies, particularly for the Member states, we will undertake a detailed analysis aim
to prove that each jurisdiction has established certain economic or social policies it
* Lawyer and PhD candidate at Faculty of Law - University of Bucharest (Romania), Andrei-
sorin.alecu@drept.unibuc.ro.
1
Art. 2 of “Treaty on European Union,” Pub. L. No. 2012/C 326/01 (2012), https://eur-
lex.europa.eu/legal-content/EN-RO/TXT/?from=ro&uri=CELEX%3A12012M%2FTXT.
2
Art. 3 (1) of Treaty on European Union.
3
Art. 3 (3) of Treaty on European Union.
4
Art. 120 of “Treaty on the Functioning of the European Union,” Pub. L. No. 2012/C 326/01 (2012),
https://eur-lex.europa.eu/legal-content/EN-RO/TXT/?from=ro&uri=CELEX%3A12012E%2FTXT.
270
follows, and the law (including competition law) is a means by such desiderates are
achieved.
1. The concept of competition: causes and economic context
Competition is a natural state of affairs and is one of the foundations of capitalism

and the market economy, promoting innovation between companies and increasing
production efficiency, aiming to provide the consumers the lowest price. Several
definitions have been given by scholars but the most appropriate we consider is that of
Kolasky, who defined competition as the process by which market forces operated
freely to assure that society's scarce resources are employed as efficiently as possible
to maximize total economic welfare5.
Given that an appropriate competitive environment enables efficient enterprises to
grow and to develop, contributing to the economic growth and the well-being of
society. In addition to creating a prosperous business environment, each country has
outlined a suitable economic policy meant to ensure economic growth and, at the same
time, a way of sanctioning companies that do not comply with these rules. The rules
establishing competition law are designed to help companies produce for consumers a
wide a variety of goods and services of a higher quality at the lowest price.
At EU level, competition has played an important role in liberalizing trade
between Member States and creating the single market. It was desired to have a strong
and objective tool to ensure the reduction of anti-competitive practices that could have
restricted competition, particularly considering the removal of trade barriers (e.g.,
customs tariffs).
From an economic and historical perspective, we note that the rules governing
competition of the founding Member States of the EU are inspired by the competition
policy of the United States of America ('US'). Prior to the Second World War, the
government had a larger influence and presence in the economy and most companies
had not reached the critical size allowing them to influence the market. After 1945, the
US wanted to expand and implement its own economic ideas and principles in as many
states as possible, especially considering a possible cold war with the communist bloc.
The first measures to promote competition on the occupied territory of Europe have
been taken by the US military, which mostly stationed and administered post-war
Germany, and were meant to impose strict competition rules to decartelize and
deconcentrate the German industry, which was highly efficiently vertically integrated6.
This American economic model brought (imposed) in Germany was based on the
principles of a free market with an oligopolistic structure, not necessarily promoting
perfect competition (i.e., the theoretical market condition in which no producer or
consumer has the power to influence market prices). We endorse this idea since an
5
William J. Kolasky, “What Is Competition? A Comparison of U.S. and European Perspectives,” The
Antitrust Bulletin 49, no. 1–2 (March 2004): 35, https://doi.org/10.1177/0003603X0404900102.
6
N. Giocoli, “Competition Versus Property Rights: American Antitrust Law, The Freiburg School, And
The Early Years Of European Competition Policy,” Journal of Competition Law and Economics 5, no.
4 (December 1, 2009): 747–86, https://doi.org/10.1093/joclec/nhp003.
271
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oligopolistic economy would have been easier to control (and influence) by the
government and also because the American model itself was based on oligopolies in
most industries. Moreover, the economic model envisaged was based on the creation of
companies large enough to gain efficiencies derived from economies of scale and to
have the ability to progress technologically, still at the same time, small enough that
they could not have anti-competitive behavior7. Thus, the combination of oligopoly and
a strong regulatory framework represents the US mentality in building post-war
economies in Western Europe.
At the same time, we note that the expansion of American principles had a global
approach. A step in this direction was taken through the adoption of the Havana Charter
in 1958, which established the International Trade Organization, where the US favored
international agreements to remove traditional barriers to international trade, in particular
condemning practices such as cartelization8. At the level of post-war Europe, the leaders
in charge with the reconstruction and economic revival of war-affected countries
consider cartelization as a destructive exploitation of natural and human resources,
which generates umbrella protection for high costs and inefficient producers9.
The peculiarities of European competition law arise from the structure and
functioning of the European Union. Agreeing to share certain competences, the
outcome was supra-national institutions in charge of the competition policy,
consequently diminishing the importance of political opportunity and possible
appropriateness by political influence. Comparing the European system with that of the
US, we note that the level of independence and autonomy of a supra-national structure
is higher than that of a national structure (i.e., the USA) 10. In Europe, a system of
checks and balances works between Member States and politicians are more concerned
about other Member State will have a higher influence over the competition authority
(i.e., the European Commission) than and they are attracted to the opportunity to
capture it themselves.11
Most probably, neither France nor Germany wants greater powers for the
European Commission (‘Commission’ or ‘EC”) without being able to set the direction
themselves but it certainly disapproves the idea of the other Member State (or another)
exerting decisive influence over this supra-national body, so that the EC will tend to
maintain its political independence12. Also, by comparing to its US counterpart
(Department of Justice or Federal Trade Commission), we remark that the
Commission's Directorate General for Competition is more independent and has a more
pro-competitive approach and that the level of enforcement has remained constant (or
even increased) in Europe, while in the US, the sanctioning policy has become more
permissive.13
7
Ibidem.
8
Sigmund Timberg, “European and American Antitrust Laws - A Comparison,” 1962.
9
Ibidem, p.133.
10
Germán Gutiérrez and Thomas Philippon, “How EU Markets Became More Competitive Than US
Markets: A Study of Institutional Drift,” June 2018.
11
Ibidem.
12
Ibidem.
13
Gerber, David J., Law and Competition in Twentieth Century Europe: Protecting Prometheus. Oxford
University Press, 1998.
272
2. Key points on the competition policy legal framework
2.1. Origins
The first ideas on what a competitive market economy should look like have
emerged since the 1930s, around the University of Freiburg, Germany under the
generic name of Ordoliberalism. However, due to the autocratic political climate, it
was only after the war that Member States and the future economic community such
ideas were assumed in the competition policies.
The analysis of the etymology of the word reveals the formation by the
juxtaposition of the concepts of ‘order’ (ordo meaning in Latin row, line or pattern)
and ‘liberalism’ (liber denoting in Latin the idea of lack of control or carrying out an
action unrestrained), which might seem at first glance to highlight antagonistic ideas.
However, if we understand that (market) freedom requires freely price determination
based only on the relationship of supply and demand and at the same time there must
be certain rules (established at government level) regulating market’s behavior and
sanctioning the abuses of factors with high economic power, we conclude it is
desirable to aim for an economy where the government has minimal yet firm
intervention, mostly limited for the purpose of ensuring a general framework for the
conduct of economic exchanges, leaving to merchants and consumers to find the
equilibrium point of price formation. At the same sense, the order imposed by the
Ordoliberal doctrine represented an economic ideal that was more orderly (with more
rules) than laissez-faire promoted by classical liberals14.
This Law and Economics based school of thought was developed by the
economist Walter Eucken and lawyers Franz Böhm and Hans Großmann-Doerth, who
appreciated the need for a new political and economic doctrine, which brought the
principles of a social-economy first and required and determine the government to
protect and respect the rights of economically weaker parties (e.g., consumers, small
businesses). The principles supported by the Freiburg School promoted a free market in
which the government would ensure compliance with market economy rules. These
rules had to have constitutional importance, and politicians, companies and other
market players had to obey this legal order for the free-market to evolve. Inspired by
the socialist doctrine of limiting the influence of powerful companies and promoting
the interests of small entrepreneurs and consumers, ordoliberalism was based on a
system of check and balances among the legislative, executive and judicial powers,
without allowing any of them an intrusive intervention in the market.
The basic idea of Ordoliberalism was the creation of a strong government that
protected citizens from the private economic interests of large companies that could
have bankrupted small businesses, affecting at the end of the day consumers and
society as a whole15. The government had to be required to act only to enforce the rules
and to ensure that they were complied with, and at the same time, it had to be able to
14
Henry M. Oliver Jr., “German Neoliberalism,” 1960.
15
Giocoli, “Competition Versus Property Rights.”, 2009.
273
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counterbalance the interests of companies striving to acquire a monopoly or dominant

position. To achieve this, ordoliberalism supporters promoted the idea of transposing
free-market principles into laws or even into an economic constitution, which all
market participants had to respect and which could not have been changed by
ephemeral lobby groups.
Therefore, we can say that the Ordoliberal theory argues that the government
should create a favorable economic legal framework and to maintain an adequate level
of competition through measures consistent with market principles16, also meant to
limit the political, economic and social influences of individuals or private
companies17.
2.2. European Coal and Steel Community

The ordoliberal principles together with the American models led to the creation
of the first formal regulations on competition in the EU. Through the signing in Paris
of the Treaty establishing the European Coal and Steel Community ('ECSC') in 1951,
Member States (Belgium, West Germany, France, Italy, Luxembourg and the
Netherlands) established the High Authority for market surveillance, monitoring
compliance with competition rules and ensuring price transparency. This supra-
national body was the precursor of the current European Commission and was intended
to achieve the objectives set out in the Treaty (at that time, ensuring an orderly supply
of coal and steel to the common market, ensuring equal access to sources of
production, setting the lowest prices and improved working conditions18).
In the context in which the Treaty establishing the ECSC (the “Treaty”) was
intended to limit and supervise the coal and steel industries, the High Authority had the
power to approve mergers and regulate concentrations that would have had adverse
effects on the markets19. The mechanism established by Article 66 of the Treaty was
16
Conference “More Pros and Cons of Merger Control,” Sweden, and Konkurrensverket, eds., More
Pros and Cons of Merger Control (Stockholm: Konkurrensverket, 2012).
17
David J. Gerber, Law and Competition in Twentieth Century Europe: Protecting Prometheus (Oxford
University Press, 1998).
18
Objectives of the Treaty, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:xy0022
19
Article 66 of the Treaty:
1. Any transaction shall require the prior authorization of the High Authority […], if it has in itself the
direct or indirect effect of bringing about within the territories […], as a result of action by any person
or undertaking or group of persons or undertakings, a concentration between undertakings […], and
whether it is effected by merger, acquisition of shares or parts of the undertaking or assets, loan,
contract or any other means of control. […]
2. The High Authority shall grant the authorization referred to in the preceding paragraph if it finds that
the proposed transaction will not give to the persons or undertakings concerned the power, in respect
of the product or products within its jurisdiction: to determine prices, to control or restrict production or
distribution or to hinder effective competition in a substantial part of the market for those products; or
to evade the rules of competition instituted under this Treaty, in particular by establishing an artificially
privileged position involving a substantial advantage in access to supplies or markets. In assessing
whether this is so, the High Authority shall, in accordance with the principle of non-discrimination […],
take account of the size of like undertakings in the Community, to the extent it considers justified in
order to avoid or correct disadvantages resulting from unequal competitive conditions. The High
Authority may make its authorization subject to any conditions which it considers appropriate for the
purposes of this paragraph [...];
274
established mainly to restrict the possibility for (German) coal and steel companies to
merge and acquire an important position on the European market in order to control
prices. However, the provision also had a limited impact due to the fact that no secondary
implementation norms were adopted; consequently, and in the first 10 years of the
operation of the High Authority, the prerogative to prohibit transactions was not used20.
The strong influence of American interest in Europe could be inferred by their
plans to decentralize the six German steel conglomerates (Konzerne) into more than 25
smaller companies. US and European officials, especially Jean Monnet – the leader of
the French delegation, have pushed for the introduction of strict rules on banning
cartels in order to avoid at all costs the cooperation and concentration of market power
of German companies. The compromise between France and Germany was the
introduction, at the insistence of the German delegation, of a non-discrimination clause
in Article 66, which allowed for a future revision of the deconcentrated steel structure,
so that although the High Authority acquired the right to prohibit further concentration,
there was a possibility of reconsideration if circumstances changed.
In order to decide on allowing a concentration, the High Authority had to consider
the possibility of the resulting entity to increase prices, however this could not be easily
assessed as national governments and producers’ associations continued to control steel
prices, in particular in France and Germany, and the High Authority realized that the
Treaty itself was a barrier against price competition by companies21. Moreover, when
companies charged prices lower than the reference prices published22 (e.g. in the
context of the 1952-1953 Korean War), the High Authority decided in part to allow
such conduct in order to increase effective price competition (i.e. selling at prices
below the officially published level), however this decision was challenged by the
Italian and French governments at the ECJ, where the High Authority's decision was
overruled, and was regarded as an implicit rejection of increasing competition price
transparency23.
For example, by 1958, the High Authority analyzed around 100 merger
notifications, and half of them came from German companies seeking to review the
deconcentration measures 24, which complied with the competition policy, since none
of those concentrations was prohibited, considering that small market shares would
have resulted in which would not have triggered the mechanism set out in Article 66 of
the Treaty.
Another important moment for that period (i.e., 1958) was the notification of the
transaction between August Thyssen Hütte AG and Phoenix Rheinrohr AG, two
companies active on the steel market, which together held the largest production
capacity of raw steel in the ECSC. Due to its size, the High Authority could not
authorize the transaction using the anti-discrimination clause (constituted in favor of
20
Laurent Warlouzet and Tobias Witschke, “The Difficult Path to an Economic Rule of Law: European
Competition Policy, 1950–91,” Contemporary European History 21, no. 3 (August 2012): 437–55,
https://doi.org/10.1017/S0960777312000288.
21
Ibidem, p. 441.
22
Companies were required to publish their prices.
23
Warlouzet and Witschke, “The Difficult Path to an Economic Rule of Law.”
24
Ibidem.
275
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German companies), since as a result of this merger the new company would have
become the strongest in the ECSC, but imposed obligations on the parties (the terms of
commitments) by which the High Authority would have controlled the future
investments of the new company. That issue was vehemently criticized by the parties,
which withdrew the merger notice. However, in 1962, the concentration of the two
companies was allowed, without intrusion into trade policy by the High Authority,
however, comprising an obligation to terminate a major contract on the supply of steel.
The next step towards European integration was the signing of the 1957 Treaty of
Rome, which established the European Economic Community (‘EEC’) and the
European Atomic Energy Community (‘EAEC’ or ‘Euratom’). The Treaty of Rome
has been amended several times and is now called the Treaty on the Functioning of the
European Union (‘TFEU’). The provisions of Article 3 (1) let. g) of the Treaty of
Rome established that for achieving the purposes was needed a system which ensured
the non-distortion of competition on the domestic market, and as a result such system
was materialized in Article 85, which sanctioned horizontal and vertical cartels
affecting competition, and in Article 86 which regulated the abuse of a dominant
position on the common market. Nevertheless, without proper secondary norms the
implementation was hindered and resumed only to high profile cases, as we will
elaborate below.
The effective implementation of these provisions25 began with the adoption of
Regulation No 17/1962 - The first Regulation implementing Articles 85 and 86 of the
Treaty, which established the Commission's monopoly on granting exemptions
pursuant to Article 85 (3) and thus established a leading role in the application of the
principles of competition law as set out in Articles 85 and 86 of the EEC Treaty26.
Discussion of the creation of a merger control system has emerged since the mid-
1960s, in the context of mergers between European companies, as well as in the light
of increased competitive pressure from American companies27. The first steps were
taken at national level, where competition authorities in the United Kingdom (since
1965) and Germany (since 1973) have developed the practice of verifying mergers at
national level.
Although the Commission's powers in relation to anti-competitive cartels had been
framed, they were not used until 1971 to block a merger. In the case of Continental
Can28, the Commission challenged the acquisition of 80% of Thomassen and Drijver-
Verbliva N.V. but the Commission's decision was overruled by the ECJ on procedural
grounds two years later. Nevertheless, the Commission had a strategic gain
materialized in the fact that the ECJ confirmed the Commission's ability and capacity
to control concentrations under Article 85 of the EEC.
25
However, with respect to merger control, the first regulation was adopted in 1989. See infra.
26
Andreas Weitbrecht, "De La Freiburg La Chicago şand further - the first 50 years of the European
Competition Law'', 2011, p.13.
27
Laurent Warlouzet, “The Rise of European Competition Policy, 1950-1991: A Cross-Disciplinary
Survey of a Contested Policy Sphere,” 2010.
28
Case 6-72: Europemballage Corporation and Continental Can Company Inc. v Commission of the
European Communities.
276
However, there were several shortcomings for merger control based on article 85:
(i) there were no benchmarks for companies entering into agreements with
concentration as an effect: they had no real guidance as to whether they should notify
the Commission and seek clearance (as was the general practice where firms wished to
demonstrate that their agreements were not anti-competitive), (ii) hypothesizes which
Article 85 could cover would not entail all forms of mergers and acquisitions, such as
hostile takeovers (which were excluded since there would be no agreement, a
preliminary condition for the applicability of Article 85)29. Given the uncertainty (i.e.
no clear set of rules established), companies started to approach the Commission with
notifications for formal or provisional clearance, even when the notification was not
mandatory.
The next key step in the evolution of the merger’s legal framework was the
adoption of the first Merger Regulation. It was triggered by the ECJ's decision30 in the
Philip Morris case from 1987, where Phillip Morris intended to merge with his
competitor, Rothmans. Thus, even though the Commission had initially approved the
merger, imposing a limited control over Rothmans, Philip Morris's competitors
challenged the decision at the ECJ under the provisions of Regulation no. 17/62. The
ECJ confirmed the Commission's decision and allowed it to use the provisions of
Article 85 to prohibit certain mergers having anti-competitive effects. Up to this point,
the provisions of Article 85 have only been used to prohibit cartelization practices and
were not used in mergers. In the context of the ECJ decision in the Phillip Moris case,
companies seeking to expand through mergers and acquisitions campaigned for
increased certainty, predictability and for the creation of a predictable legal framework.
Consequently, in 1989, the Regulation no. 4064/89 on the control of concentrations
between undertakings was passed31. The adoption was possible only by reaching a
political consensus between the Member States (e.g. France was interested in
diminishing the powers of the German competition authority, which in their view
promoted discrimination against French companies, exemplified mainly by the
rejection of the acquisition of Grundig by Thomson-CSF in 198332), facilitated by the
adoption in 1986 of the Single European Act, which extended the situations where the
European Council could adopt decisions by a qualified majority instead of unanimity.
The first transaction which was blocked in the light of the new powers granted to
the Commission by Regulation No 17. 4064/89 was the merger between ATR, a
Franco-Italian company active in aircraft production, and its Canadian competitor, De
Havilland. At that time, the Commission was criticized, in particular by the French-
supported press, for hindering the development of a European Champion in a sector of
strategic importance33.
29
Simon Bulmer, “Institutions and Policy Change in the European Communities: The Case of Merger
Control,” Public Administration 72, no. 3 (1994): 431, https://doi.org/10.1111/j.1467-9299.1994.tb01021.x.
30
Judgment of the Court (Sixth Chamber) of 17 November 1987. - British-American Tobacco Company
Ltd and R. J. Reynolds Industries Inc. v Commission of the European Communities. - Competition -
Rights of complainants - Shareholding in a competing company - Joined cases 142/84 and 156/84.
31
A preliminary version had been discussed in working groups with the Council as early as 1974.
32
Bulmer, “Institutions and Policy Change in the European Communities.”, 1994.
33
Warlouzet and Witschke, “The Difficult Path to an Economic Rule of Law.”
277
Conference Paper
The capacity granted to the Commission to assess the largest concentrations in

Europe, in fact in the world, has catapulted the Commission into a position of power
and importance that no competition agency in Europe had ever benefited from34.
2.3. European Union

We note that, in the beginning, the principles of competition law were designed in
a brute form and prohibited certain unfair and restrictive commercial practices,
focusing mostly on the sanctioning of cartels and unfair trade arrangements; however,
subsequently, along with the evolution and the increase of the level of trade,
competition policy also covered the assessment of dominant position and merger
between companies.
Between 1990 and 2004 it could be claimed that the Commission reached
maturity, considering the adoption of Council Regulations No. 1/2003 of 16 December
2002 on the implementation of the competition rules laid down in Articles 81 and 82
and Council Regulation No. 139/2004 of 20 January 2004 on the control of mergers
between undertakings, and now it could manage the increased number of Member
States (25 starting from 2005).
The amendment to Regulation no. 4064/1989 came as a result of the ECJ
overruling certain Commission’s decisions (e.g., Case M1524 Airtours v. First Choice
of 1999, Case M2283 Schneider v. Legrand of 2002 or Case No. M2416 Tetra Laval v.
Sidel of 2002). The Commission's arguments were mostly invalidated because of the
misanalysis and misinterpretation of the (alleged negative) effects following those
transactions35. As a consequence, the Merger Regulation has been amended and
introduced the concept of significant obstacles to effective competition36.
Until the amendment was passed, a transaction was mainly prohibited if it had
created a dominant position (considering the threat it will led to higher prices and a
decline in variety and incentives for innovation); therefore, the case of a merger
between the second and third most important companies (considering their market
share) was not covered by the provisions of Regulation no. 4064/89. As a consequence,
the assessment of significant impediments to effective competition was introduced by
Regulation No. 139/2004 to cover those situations. Such amendment has enabled the
Commission to block also this type of transactions, in which the resulting entity would
not have been per se in a dominated position (not having the largest market share) but
the premises for engaging in anti-competitive conduct because of the position acquired
as a result of the transaction were created. This amendment allowed the Commission to
34
Weitbrecht, “De La Freiburg La Chicago si mai departe - primii 50 de ani ai dreptului european al
concurentei.”
35
Conference “More Pros and Cons of Merger Control,” Sweden, and Konkurrensverket, More Pros and
Cons of Merger Control.
36
Article 2 of Regulation No. 139/2004:
2. A concentration which does not raise significant obstacles to effective competition in the internal
market or in a significant part of it, in particular as a result of the creation or consolidation of a
dominant position, shall be declared compatible with the common market.
3. A concentration which would raise significant obstacles to effective competition in the internal market
or in a significant part of it, in particular as a result of the creation or consolidation of a dominant
position, shall be declared incompatible with the common market.
278
have an extended, also considering the future effects of a transaction, not being limited
only to clear situations in which a company would have become dominant (i.e.,
acquiring the largest share of the relevant market).
Conclusion
The purpose of competition laws is to ensure that interactions between market

participants occur within an established framework and that at the end of the day the
most effective will prevail. Competition policy becomes intrusive only when the rules
set by it are not followed, and one participant (or more) uses unauthorized methods to
enter, maintain or block other competitors from entering a market.
The purpose of most transactions is to obtain advantages of efficiency and
reduction of post-transaction costs, however, there are also transactions that have
negative/adverse effects on competition in the market (e.g., by strengthening market
position or creating barriers to market entry). It is precisely these adverse effects that
must be anticipated and assessed by the competition authorities in order to prohibit
them or at least impose certain conditions under which such mergers or acquisitions
shall take place.
Merger control in the EU helps ensure that companies active in the single market
can compete under same circumstances and on an equal footing. In its assessment, the
Commission shall promote an efficient allocation of resources for all Member States
for the benefit of consumers37 and shall take into account the efficiency generated by
mergers, which may have a positive impact on costs, innovation and other aspects,
provided that this efficiency is demonstrable and its beneficial effects can be felt by
consumers38. In merger or acquisition procedures, the efficiencies generated by the
concentration will be taken into account provided that they counteract the effects they
would otherwise have had on competition, in particular the potential negative effects
on consumers, and that, consequently, the concentration does not raise significant
obstacles to effective competition in the common market or a significant part of it, in
particular as a result of the creation or consolidation of a dominant position39.Thus,
only if consumers receive a fair share of the resulting benefits/efficiencies and the anti-
competitive effects can be counterbalanced/outweighed by the benefits brought to
them, would the transaction be compatible with the competition rules established at
European level40. Moreover, we note that the Court of First Instance also held that [...]
37
Pct. 1-7 of Communication from the Commission - Guidance on the Commission's Enforcement
Priorities in Applying Article 82 EC Treaty to Abusive Exclusionary Conduct by Dominant
Undertakings,” Pub. L. No. COM/2008/0832 (2008), https://eur-lex.europa.eu/legal-content/EN-
RO/TXT/?from=EN&uri=CELEX%3A52008DC0832; Pct. 7 of “Orientări Privind Restricţiile Verticale,”
Pub. L. No. 2010/C 130/01 (2010), https://eur-lex.europa.eu/legal-content/EN-
RO/TXT/?from=EN&uri=CELEX%3A52010XC0519%2804%29.
38
European Commission, “Report on Competition Policy for 2019,” 2020,
https://ec.europa.eu/competition/publications/annual_report/2019/part1_en.pdf.
39
Pct. 29 of Regulation (EC) No 139/2004 of the Council Regarding Merger Control” Pub. L. No. 139/2004
(2004), https://eur-lex.europa.eu/legal-content/EN-RO/TXT/?from=EN&uri=CELEX%3A32004R0139.
40
Case C-209/10 Post Danmark A/S v. Konkurrencerådet (Curtea de Justitie a Uniunii Europene 2012).
279
Conference Paper
the ultimate aim of the rules aimed at ensuring that competition is not distorted in the
internal market is to increase consumer welfare […] Competition law and competition
policy therefore have an undeniable impact on the specific economic interests of final
customers purchasing goods or services41.
As we noted in this paper, in the early years of European competition law, it can
be seen from the ECJ case-law, most cases concerned vertical restrictions, whereas
cases involving horizontal agreements or abuse of a dominant position have not been a
priority. Especially at the beginning of the establishment of European community, the
focus converged on economic integration, so that the vertical restrictions, which
constituted an obvious impediment to free cross-border trade, were much more closely
analyzed, while horizontal agreements were not only not so clearly against the goals of
the common market, but were viewed with some permissiveness, as they supported
cross-border cooperation and allowed the creation of European sectoral champions
capable of competing on world markets42.
To the extent that the legislative framework is predictable and resilient to the new
market situations (e.g., killer acquisitions, mergers in the digital market, zero price
market), then it meets the needs and should not be amended. The basic principles are
the same, even if we aim to protect the coal and steel market or the digital market. The
European competition policy has evolved from times where post-war conditions
allowed only a mere restriction on cartels to a proactive instrument for integration and
increasing cohesion between Member States. Understanding how and most importantly
why certain concepts evolved in a certain way, allow the legislative power to offer the
competition policy more security and predictability. The critical aspect of studying the
historical perspective of the evolution is to better comprehend the present and the
future and avoid doing the same mistakes again. As Theodore Roosevelt framed it: the
more you know about the past, the better prepared are for the future.
Bibliography:
1. Bulmer, Simon. "Institutions and Policy Change in the European Communities: The
Case of Merger Control." Public Administration 72, no. 3 (1994): 423–44.
https://doi.org/10.1111/j.1467-9299.1994.tb01021.x.
2. Case C-209/10 Post Danmark A / S v. Konkurrencerådet (Court of Justice of the
European Union 2012).
3. Case C-501/06 GlaxoSmithKline Services Unlimited v. Commission. Accessed April
24, 2021.
4. Cases Joined T-213/01 and T-214/01 Österreichische Postsparkasse AG and Bank für
Arbeit und Wirtschaft AG v Commission of the European Communities. (Court of First
Instance 2001).
5. Communication from the Commission - Guidelines on the Commission's priorities in
applying Article 82 of the EC Treaty to the abusive exclusionary practices of dominant
41
Pct. 115 of Joined Cases T-213/01 and T-214/01 Österreichische Postsparkasse AG and Bank für
Arbeit und Wirtschaft AG v Commission of the European Communities. (Court of First Instance 2001).
42
Giocoli, “Competition Versus Property Rights.”, 2009.
280
undertakings, Pub. L. No. COM / 2008/0832 (2008). https://eur-lex.europa.eu/legal-

content/EN-RO/TXT/?from=EN&uri=CELEX%3A52008DC0832.
6. Communication from the European Commission - Guidelines on the application of
Article 81 (3) of the Treaty, Pub. L. No. 2004 / C 101/08 (2004). https://eur-
lex.europa.eu/legal-content/EN-
7. Conference “More Pros and Cons of Merger Control,” Sweden, and Konkurrensverket,
eds. More Pros and Cons of Merger Control. Stockholm: Konkurrensverket, 2012.
8. European Commission, “Report on Competition Policy for 2019,” 2020.
https://ec.europa.eu/competition/publications/annual_report/2019/part1_en.pdf.
9. Gerber, David J. Law and Competition in Twentieth Century Europe: Protecting
Prometheus. Oxford University Press, 1998.
10. Giocoli, N. “Competition Versus Property Rights: American Antitrust Law, The
Freiburg School, And The Early Years Of European Competition Policy.” Journal of
Competition Law and Economics 5, no. 4 (December 1, 2009): 747–86.
https://doi.org/10.1093/joclec/nhp003.
11. Gutiérrez, Germán, and Thomas Philippon. “How EU Markets Became More
Competitive Than US Markets: A Study of Institutional Drift,” June 2018.
12. Henry M. Oliver Jr. “German Neoliberalism,” 1960.
13. Kolasky, William J. “What Is Competition? A Comparison of U.S. and European
Perspectives. ” The Antitrust Bulletin 49, no. 1–2 (March 2004): 29–53.
https://doi.org/10.1177/0003603X0404900102.
14. Guidelines on Vertical restrictions, Pub. L. No. 2010 / C 130/01 (2010). https://eur-
15. Regulation (CE) no. 139/2004 of Council regarding merger control between
undertakings, Pub. L. No. 139/2004 (2004). https://eur-lex.europa.eu/legal-content/EN-
RO/TXT/?from=EN&uri=CELEX%3A32004R0139.
16. Timberg, Sigmund. “European and American Antitrust Laws - A Comparison,” 1962.
17. Treaty for the functioning of the European Union, Pub. L. No. 2012 / C 326/01 (2012).
https://eur-lex.europa.eu/legal-content/EN-
RO/TXT/?from=ro&uri=CELEX%3A12012E%2FTXT.
18. Treaty for the European Union, Pub. L. No. 2012 / C 326/01 (2012). https://eur-
RO/TXT/?from=ro&uri=CELEX%3A12012M%2FTXT.
19. Warlouzet, Laurent. “The Rise of European Competition Policy, 1950-1991: A Cross-
Disciplinary Survey of a Contested Policy Sphere,” 2010.
20. Warlouzet, Laurent, and Tobias Witschke. "The Difficult Path to an Economic Rule of
Law: European Competition Policy, 1950–91." Contemporary European History 21, no.
3 (August 2012): 437–55. https://doi.org/10.1017/S0960777312000288.
21. Weitbrecht, Andreas. "From Freiburg to Chicago and beyond - the first 50 years of
European competition law," 2011.
281
Conference Paper
PROMOTION TO PUBLIC FUNCTION,

MECHANISM FOR DEVELOPING
AND IMPROVING THE PUBLIC SERVICE
Cristina-Georgeta BĂJENARU*
Abstract: The approach of a topic related to the administrative public service aims at
identifying the modalities and objective factors that can determine the increase of the quality
of the administrative act and of the performances of those involved in this aproach. Along
with the documentary method, we used the experience of 10 years of administration on
several levels, from the local to the central administration as well as the observations made
over time from the position of public service coordinator in a central structure. Modernizing
the civil service means increasing the professional level of human resources as well as
adapting to European standards of quality, conduct and cost. The complex and specialized
character of the civil service entails the need for an intense and continuous qualification and
professionalization of the human resource. Unfortunately, the evolution of the career of some
civil servants "suffered" the formal path skipping mandatory stages and procedures to detect
those professional and behavioral features required by the job description for the procedure
for advancement in public office, in order to satisfy impartially and professionally the
interests expressed of citizens.
Keywords: public administration, civil servant, capacity, professionalization, training,
national strategies.
Introduction
The main purpose of public administration in various governance is achieving

good joint, the welfare and the possibility of every citizen to their exploit potential and
to enjoy the rights and freedoms provided by law.
Public administration is the "system of social organization" based on the
promotion of values that express the general interest of society. Only so it creates
prerequisites to develop sustainable community.
A modern administration is achieved by reforming public institutions, by
optimizing the decision-making process, improving the management of available
human and financial resources, but also by digitizing administrative procedures.
Effective public services and professional function of government is located the
relationship of conditioning, because the level of preparedness of public civil cause
with the legality, quality public services provided.
* PhD, SNSPA, Bucharest (Romania), bajenaru_cristina@yahoo.com.
282
1. The need for conceptual clarification
A. The public office belongs conceptually to the public law in general and
especially to the administrative law, being corroborated to the authority, the
administrative activities, the public service. The first regulations on the function of
Public inspired reforms of Al. I. Cuza in the legislative field and concerned the
functioning of the state administration. For the overtime public position constituted the
subject of debate and has suffered in essence statutes own a series of changes:
- Constitution of 1866, 1923;
- 1940 - Civil Servants Code;
- 1950 - Labor Code;
- 1999 - Statute of the civil servant;
- 2019 - Administrative Code.
Both in our country and in Western Europe, the civil service is identified with the
notion of public service or civil service. The civil service is associated with the civil
servant, the administrative staff or the administration workers. The category of civil
servants with the status of public law includes a small part of the administration
workers. Their comparison shows us that there are a number of similarities but also
significant differences in terms of the applicability of some rules to the civil service but
also to the civil servant. The administrative code defines in art. 5, lit. y) public function
that " all the duties and responsibilities set out in under the law, in order to exercise
the prerogatives of public power by authorities and public institutions".1 In order to
achieve its competencies, public positions can be classified into:
- general public positions with common attributions and responsibilities, general to
all authorities;
- specific public positions that require specific competencies and responsabilities.
The New Administration Code speaks about public positions which can be: public
positions established by law within the ministries, specialized structures of the central
administration, the Presidential Administration, the Romanian Parliament, the
autonomous public authorities provided in the Romanian Constitution and within the
judicial authority.
Local public functions are established in the institution of the prefect, public
services decentralized ministries and of other organs of administration central units
administrative- territorial.
In relation to the level of studies necessary for holding public positions, they can
also be:
a. class I for which bachelor's degree studies with a bachelor's degree or equivalent
are required;
b. the second class for which short-term higher education is required;
c. the third grade for which high school studies with a baccalaureate diploma are
required.
1
Emergency Ordinance of the Government of Romania no. 57/2019 on the Administrative Code
published in the Official Gazette no. 555 of July 5, 2019
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Conference Paper
The level of attributions divides the public functions into:

• Public Functions appropriate category of senior civil servants (secretary
general secretary general deputy prefect, deputy prefect inspector government);
• Public Functions appropriate category of civil servants of management
(directors general, directors deputies, directors executives, heads of service and heads
the office of the authorities and public institutions provided by law.)
• Public Functions appropriate category of civil servants of execution.
Civil servants can be beginners or permanent.
B. Public service
The speed of social, technological and economic transformations forces all
administrative structures from anywhere to adapt, in case the counter-deficiencies of
the system's functioning can lead to the decrease of the institutional performances.
When I say performance, I think about taking responsibility, developing
appropriate social policies, human resources management, the quality of public service.
The efficiency of the administration's actions, their sustainability, the phenomenon
of corruption and the discretionary slippages of the public power, the excessive
politicization of the evaluation and promotion mechanisms are worrying topics both
administratively and politically.
A modern society could not function without social trust. Frequently, the
representatives of many public authorities refer to the need to remedy the confidence
deficit accumulated over time. Social trust manifests itself differently in good
governance than in poor administration.
This concept of trust refers to the public support for the government in allowing
and obliging at the same time the observance of promises and the application in good
faith of normative acts and administrative procedures.
People's trust varies in relation to social inequities, the phenomenon of corruption,
the conduct of civil servants, the inefficiency of the administrative act.
The provision of poor quality public services, far from the expectations of the
citizens, can lead to a decrease in trust in the governing act, can induce confusion, the
refusal of social integration and even anarchy.
In order to avoid these situations, we should apply a human resources management
at the level of public administration, following the professional performances of the
employees from the point of view of the strategic objectives of the employer. Thus, a
sum of motivational tools is used to facilitate the achievement of the objectives
proposed in the respective government program. Some of the motivational tools are:
• Payment, as economic motivation;
• Recognition of results of work and the role of the institution of the bosses
hierarchical superiors;
• Participation in benefits;
• Rewarding;
• Completion of work and developing a sense of participation in getting plus- value;
• Involvement in new projects;
• Extending or enriching the job description with new attributions and responsibilities;
284
• Promotion etc.
Human resource management at the level of public administration should monitor the
professional performance of employees in terms of the strategic objectives of the employer.
C. Motivational tools
Employees in the relationship with the employer want first of all equity,
satisfaction of the work done. In this relationship they bring on the one hand
competencies, qualifications, expertise, spirit of initiative and efficiency in the activity
for which they expect the recognition of the value of the work done, rewards and why
not participate in benefits. Once this framework is achieved, it is prepared and expected
as a natural result the advancement in the public position.
Otherwise, frustrations, uncertainties, tendencies to discourage initiatives and
professional involvement to the detriment of institutional interests may arise.
There are economic, professional and psycho-social tools.
Human resource managers should not omit the fact that well-motivated employees
participate directly and indirectly in labor productivity, are involved in obtaining added
value. These arguments make the motivational strategy a permanent and priority
objective. For the understanding and behavioral analysis of the employee in his action
on the labor market, the MOTIVATION is essential. It is about the sum of the means
by which each employee with his own needs, characters and personalities can be
stimulated to contribute positively and efficiently to the achievement of the objectives
of the institution he represents.
Motivation is what drives the action, the dynamics of the individual, driven to
meet the expectations and goals he has assumed.
Conceptually, this motivational is multidimensional, difficult to define and
observe, being correlated with a series of elements as follows:
• Personal development;
• Work culture, knowledge systems, behavioral relationships at work,
completion of work and its recognition;
• The organization of the workplace and the infrastructure provided in the work
act, the technical-economic basis of the work;
We can observe a series of motivational types of the employed human resource, as
follows:
Economic motivations, related to the salary level, awards, participation in benefits;
Professional motivations represented by the physical working conditions, the
completion of the work, the recognition of the work and its value;
Psycho-social motivations that depend on the structure, size, quality of the team
but also on its meaning of action.
People's behavior and performance are explained by analyzing the motivations
that can be the basis for obtaining efficient and active work.
One of the difficult tasks of a manager is to have the ability to recognize the
moment and the way to stimulate his employees and to keep this interest present.
Very difficult!!!!!!
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Unfortunately, it is necessary an analysis per individual, in the specific conditions

of the job and in relation to the attributions from the job description.
Civil servants, being more visible to the observation of the "public eye", the
problems related to motivations often appear in the foreground.
Unmotivated employees avoid getting involved in decision making, are not
proactive and are not necessarily "lazy". The phrase "who works and does wrong" is
often on their lips. Or “we just do our job. We are not paid to think!, I follow the
bosses' instructions ".
What demotivates employees?
Decisional incoherence;
Invasive management;
Unnecessary rules;
Unproductive meetings; non-recognition of results, merits;
Unfair, biased evaluations;
Tolerance of poor and very poor performance ("it can be so")
In a few situations it appears as a motivation to take into account the financial side.
What can motivate employees?
Sentimental completion of his actions;
Satisfaction with the recognition of the obtained results and the development of
the perspective of an expected promotion;
Appreciation of bosses and the team;
Pleasant and harmonious working climate
It can be seen over time in this category of employees motivated by positive
behavioral changes, as follows:
• desire to get involved and make their own decisions, energy obviously
manifests in favor of solving challenges;
• taking advantage of opportunities to improve their professional skills;
• proactive attitude;
• They begin to realize that their activity contributes to the real change for the
better and participates in the realization of surplus value, work becomes important
through its usefulness.
Eisenhower D. states about motivation that it is "the art of making a person do
what you want, because he himself wants to do that…".
As a distinct stage in the career development process of the civil servant is
PROMOTION.
D. Promoting
When all the conditionalities are observed and the employer treats with maximum
responsibility the rules regarding the promotion procedures in a public position, great
advantages can be obtained both for the employee and for the institution.
Indirectly, the promotion must increase the professional satisfaction and
responsibility of the civil servant and the benefits in favor of the institution can be
materialized in: avoiding the additional, unnecessary costs related to the staff
recruitment stage, but last but not least the loss of time.
286
Any institution that respects itself must constantly monitor the need to replace
routine and obsolete human resources. The timely preparation of the "replacement
generation" must put on the clothes of a true "succession planning", precisely to ensure
the continuity of public service provision.
Historically, promotion is approached in terms of criteria related to:
1. Seniority in work is most often used;
2. Analysis of the potential of the employed staff taking into account the level of
professional training, the degree of adaptation to conditions under pressure;
3. Based on annual evaluations and results that have unfortunately become largely
formal, discouraging for true performers, with no connection to meritocracy.
Life shows us concrete aspects in terms of ignoring aspects related to the
development of human potential in favor of arguments of a financial nature and why
not of a political nature.
Locally, the lack of real autonomy in resource management puts on the cloak of a
formal administrative restructuring that slows down the reform processes.
The lack in reality of some rules of promotion on the basis of meritocracy, of
professional performances, generates in time instability and inefficiency and at the
same time leads to their compromise in the collective mentality.
It should be mentioned that there is a close conditionality relationship between the
quality of public services, the level of trust in public administration and the level of
well-being of society.
Promoting on the basis of clientelism and / or party membership is a difficult
problem to combat and prevents any rational effort to build a better, more efficient,
more responsible administration. We can easily and sadly see major gaps in the
remuneration of professional civil servants, which is 2.5 times lower than the
remuneration of their politically appointed bosses. Chiefs sent temporarily to "qualify
for the job." Most human resources policies are inconsistent.
Advancement in public office made with the right person at the right time
certainly leads to increased labor productivity, involvement and innovation in the
productive process, psycho-social integration in the "efficient body of the institution in
order to achieve its strategic objectives”.
2. Conclusions
We are part of the European Administration, and the body of civil servants in Romania
must align with the standards of quality, professional conduct, pragmatic, honest and
efficient in the service of the citizen pursuing the achievement of the common good.
The adoption of European norms in the field of democracy, the rule of law, public
administration has undoubtedly influenced the evolution of the civil service in the
sense of modernizing the public service, managing human resources and increasing the
professional level.
The compatibility of the national legislation with the European norms and the
implementation of common policies with the member states obliged the development
of the civil service and the achievement of the desired performances.
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Conference Paper
The Assembly of the Parliament of the Council of Europe has elaborated a series
of recommendations for the consolidation of public institutions, their democratization
in order to increase the efficiency and effectiveness of the public administration.
In developing the topic, I wanted to make the connection between the motivation of staff
employed in public administration and increasing the quality of public service by using a
series of motivational tools respecting the principles and conditionalities of meritocracy.
A contemporary states in a debate that "restoring a true meritocracy in both public
and private, is the formula by which we get performance."
All we have to do is give up the "world of approximate merit" and rationally
promote human resources, thus preventing young people from leaving the country. In
order to successfully include the steps aimed at motivating employees, managers must
have a real image at both macro and micro level on the institution. The macro level
supports an initiative to motivate through logic and context, and at the micro level it
attributes consistency to action. As long as the employee regards his relationship with
the institution as an important one, the activity he carries out brings with it personal
fulfillment. In this way, the result of the motivation process will have a decisive impact
on personal motivation. After all, the need for self-realization represents the inclination
to capitalize on one's own potential. And everything must end with advancement in
public office as a recognition of professional merits.
Bibliography:
1. Bălan, E., Troanţ, D., Văcărelu, M., Regulations and practices of public administration.
Between the vision of scientific research and the avatars of reality, Ed. Wolters Kluwer,
Bucharest, 2020;
2. Romanian Government Decision no. 909/2014 on the approval of the Strategy for
Consolidation of Public Administration 2014-2020 published in the Official Gazette no.
834 of November 17, 2014;
3. Romanian Government Decision no. 525/2016 for the approval of the Strategy on the
Development of the Civil Service 2016-2020 published in the Official Gazette no. 700 of
September 8, 2016
4. Decision of the Government of Romania no. 650/2016 for the approval of the Strategy on
professional training for public administration 2016-2020 published in the Official
Gazette no. 777 of October 4, 2016
5. Emergency Ordinance of the Government of Romania no. 57/2019 on the Administrative
Code published in the Official Gazette no. 555 of July 5, 2019
6. Regulation (EU) no. Regulation (EC) No 1303/2013 of the European Parliament and of the
Council of 17 December 2013 laying down common provisions on the European Regional
Development Fund, the European Social Fund, the Cohesion Fund, the European
Agricultural Fund for Rural Development and the European Fisheries and Maritime Fund,
as well as and laying down general provisions on the European Regional Development
Fund, the European Social Fund, the Cohesion Fund and the European Fisheries and
Maritime Fund and repealing Regulation (EC) No 1234/2007. 1083/2006 of the Council
7. Guide regarding the motivation in the public position.doc (gov.ro).
288
MEASURES TAKEN BY ROMANIA TO PROTECT

THE ELDERLY DURING THE COVID-19 PANDEMIC
Alexandra DOBRE*
Abstract: This paper was written as an synthesis of how Romania has handled its elder
population during the COVID-19 pandemic. The measures taken by the authorities can be
classified as measures of preventing the spread and measures of eradicating the virus. The
measures of preventing the spread of the virus have been taken during the state of emergency
and the state of alert, from 14 th of March 2020 until today. The measures of eradicating the
coronavirus have started to be taken as soon as the vaccines have entered the country. This
paper extracts the provisions regarding the elderly from the normative documents emited by the
romanian authorites and compiles them in order to see their evolution, how they were adapted
to the elderlies and what modifications occured after they were applied and their effectiveness
was analyzed.
Keywords: elderly, measures, emergency, alert, vaccination.
Introduction
The COVID-19 pandemic started in Wuhan, China, in a seafood and poultry

market in December 2019. The virus began to spread quickly in every country. On
January 30th, 2020, The World Health Organisation declared it a „public health
emergency of national concern”. 1
By the 26th of February 2020, the first case of COVID-19 infection is confirmed in
Romania. An italian citizen that entered Romania came in contact with several people
and most likely was infected before departuring from Italy. 2
The World Health Organisation also stated that COVID-19 is often more severe in
people who are older than 60 years or who have health conditions like lung or heart
disease, diabetes or conditions that affect their immune system. 3
In Romania, the population of 60 years old and overrepresented 18.5% in 2019.
From a total of 19.4 million people, the elderlies count aproximately 3.6 million
people. 4
* PhD student, The National School of Political Science and Public Administration – SNSPA.
1
Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, March 17, 2021
https://www.nytimes.com/article/coronavirus-timeline.html;
2
George Costita, Primul caz de coronavirus în România, February 26 2020,
https://www.digi24.ro/stiri/actualitate/primul-caz-de-coronavirus-in-romania-1266806;
3
World Health Organisation, High risk groups as defined by the World Health Organisation,
https://www.who.int/westernpacific/emergencies/covid-19/information/high-risk-groups, March 25
2020;
4
Dan Străuţ, Topul Vârstelor Populaţia României, tot mai redusă şi mai îmbătrânită, a scăzut la 19,4
milioane, August 29 2019, https://www.revista-patronatelor.ro/topul-varstelor-populatia-romaniei-este-
tot-mai-redusa-si-mai-imbatranita-totalul-a-scazut-la-194-milioane
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Conference Paper
1. The state of emergency
1.1. The presidential Decree number 195/2020 regarding the institution

of the state of emergency on the Romanian territory
Following the spread of the Covid-19 virus in more than 150 countries, 160.000
infected people and over 5.800 dead, on March 16th, 2020, Romania entered in a state
of emergency.
This was done by the Presidential decree number 195/20205 regarding the
institution of the state of emergency on the Romanian territory. According to the
Romanian Constitution, the president can issue a presidential decree for entering the
state of emergency.
This was the first step in a series of measures designed to counter the COVID-19
pandemic. The state of emergency allowed the authorities to elaborate and take swift
action to counter the spread of the coronavirus. From a legal standpoint, the state of
emergency has restrained several rights such as the free circulation, the right to
privacy, family and private life, the inviolability of the home, the right to learning, the
liberty of meetings, private property and economical freedom. 6
From a measure standpoint, the presidential decree has 2 separate annexes. The
first one contains a set of measures regarding the functioning of the institutions and
economy, with immediate applicability. Some of these measures reorganize the
institutions in order to respond better to the pandemic crisis. Others suspend certain
activities that could cause people to gather in certain places such as schools, the
issuance of documents by public authorities and offer the possibility to be realized
online. Regarding the economy and workforce, the decree adopted some measures that
protect the employees and institute the possibility to work from home. 7
The second annex contains measures that are applied gradually, and they regard
isolation and quarantine of people coming from risk zones, limiting circulation,
temporarily closing public places such as restaurants, hotels, clubs, adding COVID-19
patients to the list of emergency cases. This decree marks the beginning of the
measures taken by Romania to prevent the spread of the SARS-CoV-2 virus. So far,
there are no differentiations between age categories and the provisions of the decree
apply in the same way for everyone8.
5
Decret nr. 195 din 16 martie 2020 privind instituirea stării de urgenţă pe teritoriul României
6
Article 93 from the Constitution of Romania, 2003: The President of Romania can institute, according
to the law, the state of siege or emergency across the whole country or in some administrative areas
and solicitate the Parliament the acceptance of this measure in a term of maximum 5 days.
7
Anexa 1 din Decretul nr. 195 din 16 martie 2020 privind instituirea stării de urgenţă pe teritoriul
României http://legislatie.just.ro/Public/DetaliiDocumentAfis/223831
8
Anexa 2 din Decretul nr. 195 din 16 martie 2020 privind instituirea stării de urgenţă pe teritoriul
290
1.2 Military Ordinances

Following the Presidential Decree number 195/2020 regarding the institution of
the state of emergency on the Romanian territory, a total of 12 military ordinances
were issued throughout the state of emergency. People could go outside of their homes
carrying a declaration with a set of limited reasons for their departure. The state of
emergency ended May 14th, 2020.
Some of these ordinances contain provisions that differentiate the elderlies as a
vulnerable category of people over 65 years old wich require additional measures of
protection.
The Military Ordinance no. 2/March 21st, 2020, stated that the authorities have the
obligation to identify and monitor the evidence of people over 65 years old which have
no people to support them and to ensure they are helped with their outdoor daily activities
that could expose them to the coronavirus. The evidence of the elderly people who do not
have a support in their daily activities are updated and reported weekly to the regional
centers of coordination and leading of the intervention. The committees for emergency
situations identify ways to help and support this category of elderly people. 9
The Military Ordinance no. 4/29th of March 2020 states that people over 65 years
old are allowed to travel outside their home between 11:00 and 13:00. This measure
was designed to allow the elderlies to buy their groceries and engage in other outdoor
activities at a time of day which did not overlap with the presence of the working
people. This rule also has some exceptions. The elderlies can circulate outside of the
11:00 – 13:00 interval for medical reasons, such as cancer treatment, dialysis, using
their own or specialized means of transportation. Another exception is for taking the
pets for a walk in the proximity of the home during the 20:00 – 21:00 interval.
To help the elderly even more, this military ordinance states that economic
operators must organize their working schedule in a way that ensures and facilitates the
access of people over 65 years old, limiting, on the other hand, the access of people
below this age in the stores, in the 11:00 – 13:00 interval. 10
Even though many sectors of the economy and administration were suspended
during the state of emergency, the military ordinances expressly forbid the stopping or
suspending of the activities of social services such as care centers for the elderlies.
Also, the relatives of those people have the option to ask that they are transferred at
home if the living conditions are fit for them. This measure was designed to assure
continuity to the social services that provide care to the elderlies and give the people,
that worry they might get infected, the option to place them in a more isolated
environment, such as the residence of their relatives. 11
9
ORDONANŢĂ MILITARĂ nr. 2 din 21 martie 2020 privind măsuri de prevenire a răspândirii COVID-19,
Art. 8, http://legislatie.just.ro/Public/DetaliiDocument/224284;
10
ORDONANŢĂ MILITARĂ nr. 4 din 29 martie 2020 privind măsuri de prevenire a răspândirii COVID-
19, Art. 1, 2, http://legislatie.just.ro/Public/DetaliiDocument/224467;
11
ORDONANŢĂ MILITARĂ nr. 8 din 9 aprilie 2020 privind măsuri de prevenire a răspândirii COVID-19,
Art. 9, http://legislatie.just.ro/Public/DetaliiDocument/224762
291
Conference Paper
After these measures were taken, they were revised and the Military Ordinance no.
10/27 th of April 2020 changed the 11:00 – 13:00 interval for leaving the home.
Without regard to any interval, the elderlies could travel for medical, professional
reasons, for agricultural activities and selling agricultural food products. The new
intervals were 07:00 – 11:00 and 19:00 – 22:00 and specified a new set of reasons:
shopping for basic goods, taking care of other people or leaving home for physical
exercises and taking the pets for a walk. 12
1.3 Projects regarding the elderlies

In April 2020, during the state of emergency, a project was elaborated by the
director of the „Matei Balş” Institute of Infectious Diseases, Prof. Adrian Streinu-
Cercel that was essentially a strategy to fight the spreading of COVID-19. This project
was meant to isolate people, especially the elderlies, for a period of 3 months in order
to prevent them from getting infected with the coronavirus. The categories of age were
more diversified in this project rather than the laws adopted until that moment, which
differentiated people below and above 65 years old. The population was split into four
risk categories: people over 65 years old, between 40 and 65 years old, below 40 years
old and those suffering from chronic diseases.
In order to limit new cases of COVID-19, the working schedules will have to be
separated according to age groups, the way to workplaces and public transports were
intended to be disinfected and in the rest of the time people will have to stay isolated.
The immediate measures intended were separated per age category. People over
65 years old were intended to be isolated at home or relocated somewhere else, while
helped and support by their relatives and authorities, monitored by the police and other
local authorities. People between 40 and 65 years old that worked from the office and
not from home had to be supported with the transportation and decontamination of
those means of transportation. They should start the working schedule at 7:30 AM.
People below 40 years of age should begin working at 9:30 AM.
Along with this set of measures, rapid testing was intended to be made in highly
populated areas and to the people that entered the country. Also, the Government
would have to discount the citizens costs for water, electricity, transportation, food and
sanitation products.
The period of isolation would have to be around 8-10 weeks and was intended to
stop the pandemic and prevent people from getting sick. This project never took off,
meeting heavy public backlash. It was criticised for being too restrictive and some of
the measures were almost impossible to be put in practice. The efforts for
implementing this were too large and after the isolation period, the virus could still
spread from outside the country, like it happened in the first place. Regarding the older
people, it was considered that the isolation was too long and not beneficial. 13
12
ORDONANŢĂ MILITARĂ nr. 10 din 27 aprilie 2020 privind măsuri de prevenire a răspândirii COVID-
19, Art. 1, 2, http://legislatie.just.ro/Public/DetaliiDocument/225047
13
Programul “VACANŢA MARE” de prevenire a îmbolnăvirilor cu SARS-CoV-2/COVID 19, 20.04.2020,
https://www.mediafax.ro/social/planul-lui-streinu-cercel-pentru-perioada-de-dupa-starea-de-urgenta-
batranii-sa-fie-izolati-inca-3-luni-de-zile-document-19085159
292
Other programmes were proposed and successfully implemented by the

authorities. Law no. 146/2020 stated that free protection masks should be offered to
people with pension up to 1.000 RON. The number of masks is 30 per month and the
authorities had the obligation to make lists with those persons and the Ministry of
Health is the one responsible to offer the masks to the people. 14
Local institutions, such as the Bucharest Center for Seniors have offered and
packages of food and sanitation products to elderly people with low income, that live in
Bucharest. 15
2. The alert state
On May 14th, 2020, the Government issued the emergency ordinance no. 68/2020
which states that the National Committee for Emergency Situations has the authority to
declare the state of alert at national or local level.
Following the state of emergency, Romania entered the state of alert on May 18th,
2020. According to Decision no. 394/May 18th, 2020, the state of alert can be instituted
for 30 days, and prolonged after, for 30 days more. 16
During the state of alert, the measures of protection against the pandemic are
established by the Decisions of the National Committee for Emergency Situations.
Starting from May 15th, 2020, people could go outside without declarations unlike in
the previous state of emergency. However, leaving the hometown required a
declaration with a limited number of reasons. A measure that persisted from the state of
emergency is the ensured continuity of the activity of the elderly care centers with
requirements of isolation for the personnel. 17
Starting from the fall of 2020, the Decisions of the National Committee for Emergency
Situations, circulation was forbidden between 23:00 to 05:00 and later changed between
22:00 to 05:00. People could travel during that interval with a declaration that contains a set
of limited exceptions such as going to work, urgent medical assistance, purchase of drugs,
according assistance to children, elderlies or sick people. 18
Another measure established in this regard was the continuous weekly testing of
the personnel of the elderlies caring centers. 19
14
LEGE nr. 146 din 23 iulie 2020 privind acordarea de măşti pentru protecţia cetăţenilor români de
virusul COVID-19, http://legislatie.just.ro/Public/DetaliiDocument/228357
15
„Coşul solidarităţii”, 30.04.2020, http://cs-mb.ro/cosul-solidaritatii
16
ORDONANŢĂ DE URGENŢĂ nr. 68 din 14 mai 2020 pentru modificarea şi completarea unor acte
normative cu incidenţă în domeniul managementului situaţiilor de urgenţă şi al protecţiei civile,
17
HOTĂRÂRE nr. 24 din 14 mai 2020 privind aprobarea instituirii stării de alertă la nivel naţional şi a
măsurilor de prevenire şi control al infecţiilor, în contextul situaţiei epidemiologice generate de virusul
SARS-CoV-2, http://legislatie.just.ro/Public/DetaliiDocument/225602
18
HOTĂRÂRE nr. 52 din 05.11.2020 privind stabilirea unor măsuri suplimentare necesar a fi aplicate
pentru prevenirea şi combaterea efectelor pandemiei de COVID-19,
https://stirioficiale.ro/hotarari/hotarare-nr-52-din-05-11-2020-a-cnsu
19
Anexa la HCNSU nr. 8 din 2021 privind Măsuri de prevenire şi control a infecţiilor propuse a se aplica
pe durata stării de alertă, https://stirioficiale.ro/hotarari/hotarare-nr-8-din-10-02-2021-a-cnsu
293
Conference Paper
So far, the measures that have been adopted were designed to prevent the spread
of the COVID-19 virus, without means to stop the pandemic. There have been
numerous measures meant to protect the elderlies, the authorities have set them apart,
as a vulnerable category. Starting from the beginning of 2021, vaccine lots have arrived
to Romania. From then on, the measures of prevention have been doubled with
measures of eradicating the virus with the help of vaccines.
3. The COVID-19 vaccination strategy
On November 27 th 2020, the Government, together with the involved institutions

has adopted the National Vaccination Strategy. This strategy establishes the vision,
principles and how to administer the COVID-19 vaccines in Romania. It is based on
the analysis of the spread of the virus and the severe and death cases both at national
and european levels. Romania has taken the obligation to ensure the access to
vaccination in safe and effective conditions.
In Romania, the vaccination will be implemented in accordance to the mechanism
established by the European Commission, according to the existing laws and medical
protocols. The vaccination will be free and voluntarily, taking the vulnerable groups,
such as the elderlies, into consideration.
One of the key elements of the romanian vaccination strategy are the stages of
vaccination. There are 3 separate stages, each containing certain categories of people.
This classification was based on several factors: ethics and social equity,
epidemiological criteria (growth of the number of cases in a certain region, rates of
infection), medical criteria (risks of infection, transmission, severe evolution and
death), essential activities that assure the functioning of critical infrastructure.
The first stage of vaccination included medical personnel and auxiliaries, such as
nurses, paramedics, medical students. The reasons were that these categories are the
most susceptible to infection, because they encounter and treat patients and they are the
first that need to become immune.
The second stage includes several categories such as people over 65 years, people
with chronic illnesses, regardless of age, workers in domains that are essential for the
functioning of the state, economy, personnel of the religious cults. This category was
designed to include people that have a higher risk of getting infected or having a severe
form of the disease.
The third stage includes the rest of the population, which does not fulfil the
conditions for one of the two first stages.
By dividing the population through these 3 stages, Romania has proven it is fully
aware of the vulnerability of people over 65 years and is willing to protect them with
priority. 20
20
STRATEGIE din 27 noiembrie 2020 de vaccinare împotriva COVID-19 în România,
294
Conclusion
With the efforts to fight the COVID-19 pandemic ongoing, Romania is handling
the situation of people over 65 with care. Although, some objections can be made.
Even though the World Health Organisation has classified people over 60 as a
vulnerable category, in Romania, special measures were taken for people over 65 years
old. These measures were taken during the state of emergency, the ongoing state of
alert and the vaccination strategy. In Romania, the retirement ages are 63 for women
and 65 for men. Most likely, this was the reason why the measures of restriction were
taken for the people over 65 and not just 60 years old.
By May 9th, 2021, the following numbers of total cases of COVID-19 were
registered in Romania: 1.066.111 people were confirmed, 1.013.066 people were
healed, 28.966 deceased. There have been 2.366.510 (12.19% of the total population)
people that have been vaccinated with both doses, 5.995.792 administered doses in
total and 1.262.772 were administered a single dose.
The number of infections that occurred in people over 60 is 309.760, 29% of the
total number of cases. 21 This shows that, even though a significant number of elderlies
were infected, the situation did not get out of control. Still, the percent of deaths is 2.7,
while the global percent is 2. 22 During the pandemic, Romania had a more cautious
attitude, rather than a proactive one. The state could have done more testing to identify
and isolate infected people, could have communicate the benefits and strategy of
vaccination in a better way.
Bibliography:
1. Derrick Bryson Taylor, A Timeline of the Coronavirus Pandemic, March 17, 2021
https://www.nytimes.com/article/coronavirus-timeline.html;
2. George Costita, Primul caz de coronavirus în România, February 26 2020,
https://www.digi24.ro/stiri/actualitate/primul-caz-de-coronavirus-in-romania-1266806;
3. World Health Organisation, High risk groups as defined by the World Health Organisation,
https://www.who.int/westernpacific/emergencies/covid-19/information/high-risk-groups,
March 25 2020;
4. Dan Străuţ, Topul Vârstelor Populaţia României, tot mai redusă şi mai îmbătrânită, a
scăzut la 19,4 milioane, August 29 2019, https://www.revista-patronatelor.ro/topul-
varstelor-populatia-romaniei-este-tot-mai-redusa-si-mai-imbatranita-totalul-a-scazut-la-
194-milioane
5. Decret nr. 195 din 16 martie 2020 privind instituirea stării de urgenţă pe teritoriul
6. Article 93 from the Constitution of Romania, 2003: The President of Romania can
institute, according to the law, the state of siege or emergency across the whole country
21
Official data for the number of COVID-19 cases, https://datelazi.ro/
22
Mortality Analyses, Coronavirus Resource Center, Johns Hopkins University & Medicine
https://coronavirus.jhu.edu/data/mortality
295
Conference Paper
or in some administrative areas and solicitate the Parliament the acceptance of this
measure in a term of maximum 5 days.
7. Anexa 1 din Decretul nr. 195 din 16 martie 2020 privind instituirea stării de urgenţă pe
teritoriul României http://legislatie.just.ro/Public/DetaliiDocumentAfis/223831
8. Anexa 2 din Decretul nr. 195 din 16 martie 2020 privind instituirea stării de urgenţă pe
teritoriul României http://legislatie.just.ro/Public/DetaliiDocumentAfis/223831
9. ORDONANŢĂ MILITARĂ nr. 2 din 21 martie 2020 privind măsuri de prevenire a
răspândirii COVID-19, Art. 8, http://legislatie.just.ro/Public/DetaliiDocument/224284;
10. ORDONANŢĂ MILITARĂ nr. 4 din 29 martie 2020 privind măsuri de prevenire a răspândirii
COVID-19, Art. 1, 2, http://legislatie.just.ro/Public/DetaliiDocument/224467;
11. ORDONANŢĂ MILITARĂ nr. 8 din 9 aprilie 2020 privind măsuri de prevenire a
răspândirii COVID-19, Art. 9, http://legislatie.just.ro/Public/DetaliiDocument/224762
12. ORDONANŢĂ MILITARĂ nr. 10 din 27 aprilie 2020 privind măsuri de prevenire a
răspândirii COVID-19, Art. 1, 2, http://legislatie.just.ro/Public/DetaliiDocument/225047
13. Programul “VACANŢA MARE” de prevenire a îmbolnăvirilor cu SARS-CoV-
2/COVID 19, 20.04.2020, https://www.mediafax.ro/social/planul-lui-streinu-cercel-
pentru-perioada-de-dupa-starea-de-urgenta-batranii-sa-fie-izolati-inca-3-luni-de-zile-
document-19085159
14. LEGE nr. 146 din 23 iulie 2020 privind acordarea de măşti pentru protecţia cetăţenilor
români de virusul COVID-19, http://legislatie.just.ro/Public/DetaliiDocument/228357
15. „Coşul solidarităţii”, 30.04.2020, http://cs-mb.ro/cosul-solidaritatii
16. ORDONANŢĂ DE URGENŢĂ nr. 68 din 14 mai 2020 pentru modificarea şi completarea
unor acte normative cu incidenţă în domeniul managementului situaţiilor de urgenţă şi al
protecţiei civile, http://legislatie.just.ro/Public/DetaliiDocumentAfis/225585
17. HOTĂRÂRE nr. 24 din 14 mai 2020 privind aprobarea instituirii stării de alertă la nivel
naţional şi a măsurilor de prevenire şi control al infecţiilor, în contextul situaţiei
epidemiologice generate de virusul SARS-CoV-2,
http://legislatie.just.ro/Public/DetaliiDocument/225602
18. HOTĂRÂRE nr. 52 din 05.11.2020 privind stabilirea unor măsuri suplimentare necesar
a fi aplicate pentru prevenirea şi combaterea efectelor pandemiei de COVID-19,
https://stirioficiale.ro/hotarari/hotarare-nr-52-din-05-11-2020-a-cnsu
19. Anexa la HCNSU nr. 8 din 2021 privind Măsuri de prevenire şi control a infecţiilor
propuse a se aplica pe durata stării de alertă, https://stirioficiale.ro/hotarari/hotarare-nr-8-
din-10-02-2021-a-cnsu
20. STRATEGIE din 27 noiembrie 2020 de vaccinare împotriva COVID-19 în România,
21. Official data for the number of COVID-19 cases, https://datelazi.ro/
22. Mortality Analyses, Coronavirus Resource Center, Johns Hopkins University &
Medicine https://coronavirus.jhu.edu/data/mortality
296
THE ROLE OF MEDIATION

IN THE INSTITUTION OF MARRIAGE
Iulian HAGIU*
Abstract: The degree of diversification of social and economic relations, the need for
development, the need to resolve disputes quickly, the excessive formalism of judicial
procedures have made alternative methods of resolving disputes - especially mediation - to be
considered the strongest response to the need for speedy resolution. of the various
misunderstandings that have arisen in society - in general and in the family - in particular. Most
states consider beneficial to resolve family law disputes through mediation, rather than in court.
In Croatia, parents involved in divorce and custody proceedings are required to use the
mediation procedure first. Psychologists from the Centers for Social Protection use mediation.
Mediation is sometimes combined with other activities. For example, in Estonia, a child care
specialist assists parents in the mediation procedure in the early stages of a trial. In Germany,
the child's legal counsel provides assistance to parents through mediation1. Many disputes that
entered the mediation process were resolved by this method. According to some, almost 60-80%
of mediated conflicts were resolved by finding a solution agreed by the parties to the conflict2.
Keywords: mediation, family conflicts, divorce, sharing
1. The concept of conflict - psychosocial phenomenon
The term "conflict" comes from the Latin verb confligo, ére, meaning "to fight",
"to fight among themselves". This term is defined by many dictionaries, by terms
similar to violence, as dissension, friction, dispute, quarrel, scandal, struggle, war. The
explanatory dictionary of the Romanian language3 generally defines the notion of
conflict as a misunderstanding, clash of interests, disagreement, antagonism, quarrel,
dispute, discussion. More analytical, the Webster American dictionary defines
"conflict" as a disagreement or an acute collision between interests, ideas, which is
reflected in the process rather than the result ".
The dictionary of psychology4 distinguishes between mental conflict, social
conflict, cognitive conflict and perceptual conflict. Social conflict is defined as any
modified / affected / negated form of social-human relations as they are accepted or
expected in the social unit (group or community) and in the culture of which the social
* PhD Student, Faculty of Law, “Titu Maiorescu” University, Bucharest, Romania, E-mail:
iulianhan@yahoo.com.
1
European Union Agency for Fundamental Rights (FRA), 2015, Child-friendly justice - Perspectives and
experiences of professionals on children’s participation in civil and criminal judicial proceedings in 10
EU Member States.
2
Adam Gersch, Mediation skills and techniques, A practical guide to conciliation and mediation,
Pb.RoutledgeFalmer, London, 2002, p.63.
3
Explanatory dictionary of the Romanian language, Romanian Academy, Encyclopedic Universe,
Bucharest, 3rd edition, revised and added, 2009, p. 211.
4
R. Doron, F. Parot, Dictionary of Psychology, Humanitas Publishing House, Bucharest, 1999.
297
Conference Paper
actors are part. Specifically, social conflict occurs when two or more interdependent
parties (individuals, groups, communities) are (or only perceive) different or even
incompatible in terms of needs, goals, values, resources or personality traits, difference
or produce a state of tension that is required to be discharged5. Conflicts can have an
internal, intrapsychic, intrapersonal or, on the contrary, external, extrapersonal, social
localization. External conflicts - social - can involve several people, families, groups,
institutions, organizations, communities, but also values.
Within specific methods of resolving assisted by intermediaries, the dispute can be
resolved through a formal legal intervention, such as legal action or through alternative
dispute resolution methods, such as conciliation, mediation or arbitration. The most
common framework structures for resolving conflicts are mediation and arbitration. In
the case of misunderstandings within a family, between spouses or between parents and
children, the best known method of settlement is mediation. Third party intervention is
needed when conflicts exceed the capabilities of the parties and direct negotiation
between them is not enough.
1.1. Aspects of family mediation

"The family is the core of civilization," said Will Durant, and a Marxist saying
reminds us that it is "the basic cell of society" and the "only natural" J.J. Rousseau. The
family's past impacts on its present, in terms of aspects related to continuity, as well as
those related to changes and interruptions of tradition. Today, the family is put to the
test if we talk about modern trends and the pressure of new challenges, and at the same
time it is called to demonstrate its vitality and expressiveness, taking into account the
freedoms acquired over time.
In this context of the diversity and complexity of the family, the society has tried
over time, through various means, to keep it stable and its purpose and to keep them
unaltered. One of these means is mediation. Mediation is an alternative form of
problem solving between two or more parties (in our case parents and / or children)
with well-defined goals, which over the years has become increasingly remarkable for
the efficiency with which it has managed to separate the emotional part of the rational
one, helping to negotiate and understand the problems, based on trust in the mediator.
In the case of conflicts in the family, one way to resolve disputes within it, in the
interests of all members, but especially in the interests of children, through a third
party, in conditions of neutrality, impartiality and confidentiality is family mediation.
Family mediation has emerged in the U.S. in the 1970s to avoid the difficult
divorce proceedings that placed the parties in an antagonistic relationship and nullified
any possibility of reaching an agreement. In 1985, the state of California was the first
to pass a law requiring parents who were in conflict over the custody of their children
to discuss a mediator.
From the U.S., family mediation has spread to Canada, where it has not become a
mandatory procedure. Subsequently, family mediation expanded to English-speaking
countries - New Zealand, Australia, the United Kingdom and then to European
5
A. Stoica-Constantin, The interpersonal conflict, Polirom Publishing House, Bucharest, 2004, p.23.
298
countries, the latter taking over the Canadian model. In the United Kingdom, family
law has imposed since 1996, as a condition for the state to grant the sums necessary for
representation by a lawyer, the obligation of partners filing for divorce to go to a
mediator to determine whether their dispute can be resolved. resolved through
mediation. In Norway, mediation is a mandatory procedure before filing for divorce for
couples with children under 16.
Most states consider it beneficial to resolve family law disputes through mediation,
rather than in court. In Croatia, parents involved in divorce and custody proceedings are
required to use the mediation procedure first. Psychologists from the Centers for Social
Protection use mediation. Mediation is sometimes combined with other activities. For
example, in Estonia, a child care specialist assists parents in the mediation procedure in
the early stages of a trial. In Germany, the child's legal counsel provides assistance to the
parents through mediation. Many disputes that entered the mediation process were
resolved by this method. According to some, almost 60-80% of mediated conflicts were
resolved by finding a solution agreed by the parties to the conflict.
Communication, dialogue itself and finding the right techniques for problem
solving in different areas of social or economic interest have brought an appropriate
meaning to the term "mediation", starting with Ancient Greece and Ancient Rome.
Nowadays, these practices are essential in resolving one of the most widespread family
disputes, the dissolution of marriage, the number of which is growing substantially.
1.2. The role of mediation in the institution of marriage

Divorce procedure.
A. Divorce applications can be resolved judicially for any of the reasons contained
in art. 373 - 404 of the New Civil Code, if the spouses address the court. The court
checks if there are good reasons, if the relations between the spouses are seriously
damaged and the continuation of the marriage is no longer possible. The court may
pronounce the divorce through sole fault or, when the evidence in the case leads in this
direction, through common fault.
B. To the extent that the spouses agree to the divorce and do not have minor
children, the dissolution of the marriage may also be ordered by administrative means
or by notarial procedure. An element of novelty is the fact that the notarial procedure
can be used even when there are minor children, but only if the spouses agree on all
aspects related to the relations between them and the relations between parents and
minor children6.
Until recently, the provisions of art. 64 of Law no. 192/2006 allowed divorce
through mediation but, by Decision no. 33 of 2019 of the High Court of Cassation and
Justice7, there have been changes in this regard, namely: a) the court cannot enshrine
6
http://ploiesti-avocat.ro/procedura-divortului-noul-cod-civil/
7
DECISION no. 33 of December 9, 2019 regarding the unitary interpretation and application of the
provisions of art. 2 para. (4), art. 59 para. (2) and art. 64 para. (2) of Law no. 192/2006 on mediation
and organization of the mediator profession, with subsequent amendments and completions, High
Court of Cassation and Justice - Panel for resolving the appeal in the interest of the law, Published in
the OFFICIAL GAZETTE no. 144 of February 24th, 2020.
299
Conference Paper
the mediation agreement on the agreement of the parties on the dissolution of marriage
and b) on resolving ancillary issues divorce, the court may consecrate the mediation
agreement having this object.
The family mediator is an arbitrator, his main characteristic being neutrality. In
mediating family conflicts, communication techniques and the "negotiation" of a
middle situation, convenient for both parties are the two essential levers to avoid the
dissolution of marriage. Over time, the law, taking into account social changes, has
modernized the status of the mediator, enriched the various opinions, the specialized
doctrine, the efficiency in terms of avoiding divorce increasing considerably.
In art. 2 para. (1) of Law no. 192/2006 on mediation and the organization of the
mediator profession, with subsequent amendments and completions, regulates the
possibility for individuals or legal entities to “resolve conflicts of any kind through the
mediation procedure, even after initiating a lawsuit in court in unless the law provides
otherwise”. Article 64 para. (1) shows which misunderstandings between spouses can
be resolved through mediation: continued marriage, sharing of common property,
exercise of parental rights, residence of children, parental contribution to child support
and any other misunderstandings that arise in relations between spouses regarding the
rights they may have under the law8.
The mediation agreements concluded by the parties, in the cases / conflicts that
have as object the exercise of parental rights, the parents' contribution to the
maintenance of the children and the establishment of the children's domicile, take the
form of an expedient decision.
As it appears from the interpretation of the provisions of art. 64 para. 2 of the
Mediation Law and jurisprudence, as long as the decision to divorce is the consequence
of the spouses' misunderstanding in continuing the marriage, the court may take note of
the mediation agreement by which the parties agreed on the mediation, thus the
agreement on dissolution and settlement ancillary issues, issues in most cases essential,
can be filed with the court competent to rule on the divorce.
Resolving misunderstandings between spouses through mediation in the case of
minors
Divorce with children is a sensitive subject for any family that goes through a
separation, the mediator's mission is to strictly maintain the solution of each problem,
deviations and disclosures from the subject are harmful, the purpose of mediation is not
emotional or psychological support, but on the priorities and interests of children.
Custody mediation is usually exercised by both parents, which is by definition a
process designed to be cooperative, to reach amicable agreements and to help create a
parenting plan9.
The parenting plan is a written agreement stipulating each parent's schedule,
including the responsibilities of both parties regarding parenting. This document is based
on certain determinants, observed by the mediator and negotiated with the parents. There
8
Alin. (1) in art. 64 was modified by point 17 of art. I of LAW no. 115 of July 4, 2012, published in the
OFFICIAL GAZETTE no. 462 of July 9, 2012.
9
Implementation of joint custody arrangements through mediation- Brotsky, M., Steinman, S., and
Zemmelman, S. (1991) Joint custody through mediation. In Joint custody and shared parenting
(Folberg, J., Ed.), New York.
300
is no standard of a parenting plan, priority and final will be the one that will reflect the
best interests of the child, and at the discretion of the court, it will be reviewed. Very
important aspects are developed regarding the children's home after separation. In this
case, it is important to maintain a regular schedule with a flexibility that is advantageous
for children, scheduling visits, which include visits from other relatives who are part of
children's lives, important holidays, education, vacations and so on.
1.3. The sharing of common goods acquired during the marriage

The division of goods acquired in marriage is another important and very common
issue. Spouses in conflict may reach a settlement that can be drafted in writing, in the
form of an agreement, by the mediator, which will include all the clauses agreed by
them. If the transfer of ownership of real estate, as well as other real rights, is subject to
the sanction of absolute nullity, the mediation agreement will be presented to the court,
which will become the cornerstone in the separation of assets, after verification by
court of substantive and formal conditions.
2. Jurisprudential guidelines
Regarding the way of dissolving the marriage and the impossibility of divorce
through mediation, the jurisprudential guidelines are divergent. Examining the
jurisprudence at national level, the People's Advocate showed that the existence of a
non-unitary practice regarding the interpretation and application of the provisions of
art. 2 para. (4), art. 59 para. (2) and art. 64 para. (2) of Law no. 192/2006, as well as of
art. 373 lit. a) and art. 374 para. (1) of the Civil Code, being identified three guidelines:
According to the first jurisprudential guideline, some courts have considered that
the mediation agreement regarding divorce cannot be noted, holding that divorce is a
personal action, regarding the status of the person, and which, according to art. 2 para.
(4) of Law no. 192/2006, cannot be the object of mediation. In the same sense,
according to the provisions of art. 64 para. (1) lit. a) of the mentioned normative act,
the misunderstandings between the spouses regarding the continuation of the marriage,
and not the divorce can be solved through mediation. In addition, divorce is not one of
the cases in which an expedited decision can be pronounced based on the mediation
agreement, according to the provisions of art. 64 para. (1) of the same law. The referral
to the court cannot be made through a request for approval of the mediation agreement
regarding the divorce between the spouses, but only through a request for the
dissolution of the marriage. It was appreciated that divorce is not among the
misunderstandings between spouses that can be resolved through mediation, listed in
art. 64 para. (1) of Law no. 192/2006. Instead, the court may take into account in
settling the case the agreement between the parties regarding both the form of the
divorce and the settlement of its ancillary claims.
In a second jurisprudential guideline, the courts have taken into account the
divorce mediation agreement, but only if the court rules on the dissolution of the
marriage by agreement, after verifying the free consent of the parties to this effect
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before the court, under the conditions of art. 931 para. (1) of the Code of Civil
Procedure, practically transforming the request for a judgment on the basis of the
divorce mediation agreement into a divorce application by the agreement given before
the court. The issuance of a decision approving the agreement of the parties, expressed
in the mediation agreement, to divorce can only be done in compliance with the
requirements imposed by law10.
According to the third jurisprudential guideline, the courts had a different
approach, appreciating that the divorce mediation agreement can be noted, based on
art. 59 para. (2) and art. 64 para. (2) of Law no. 192/2006, provided, where appropriate,
that the agreement of the parties respects the principle of the best interests of the minor.
In this respect, the opinion was expressed that the court has the obligation to verify
whether the mediation agreement between the parties regarding the relations between
the divorced parents and their minor children, the establishment of the minors'
residence and the establishment of the maintenance pension does not prejudice the
interests of the minors11.
3. The family mediation process
Family mediation takes place during the agreed time, its temporalities being
defined by human aspects, namely emotions and feelings12. Mediation has its own
contour, becoming more and more defined over time, encompassing different positions
and actions, including negotiation. The doctrine is explicit about the confusions
between mediation and negotiation, writers like Ştefan Boncu13 defines negotiation as a
part of the process of reaching a common denominator. Family mediation gives people
in conflict the opportunity to see clearly, beyond the harshness and conflicting
opinions, helping them from the position of a neutral person, focused on the agenda of
essential issues to think of proposals and develop strategies that would normally have
been rejected. because of the curtain of negative elements, feelings and own. The
family mediator contributes to the creation of a framework, relational, listening and
dialogue device away from any form of internal or external pressure and coercion.
For the last 25 years, this branch has been given greater importance, especially in
French-speaking countries where practitioners like Jean-Louis Lascoux turn a
profession into a real legal mechanism, with decision-making power for the parties
involved in the dispute.
Jean-Louis identifies six essential "stages" of the mediation process (the term
stages being considered a sensitive one): context, listening, definition, decision,
validation and conclusion14.
10
Art. 930 and art. 931 of the Code of Civil Procedure.
11
ÎCCJ DECISION no. 33 of 2019, pc. 3-12.
12
Ilie Dorin, Parascheva Dorin, The Mediation Process, University Publishing House, Bucharest, 2018,
p.28.
13
Ştefan Boncu, Negotiation and mediation - psychological perspectives, European Institute Publishing
House, Iaşi, 2006, pp. 105-107.
14
Jean-Louis Lascoux, Dictionnaire encyclopédique de la médiation, Paris, 2019
302
The context consists in interviewing the parties, obtaining information about the
conflict, then, by listening giving space and relief, the relationship of trust between the
parties and the mediator is built so that later a definition can be given to the whole
situation. Based on the stories and foundations so far, he will be able to make a
decision; this stage is extremely relevant because, by expressing the interests and
positions of one party, the other will become more receptive and communicative about
the perception of the conflict. Validation is marked by the stage of the process in which
the adversary, who until then had been his adversary, became an ally with whom he
can communicate and make concessions; at the time of conclusion, the parties must
undertake to abide by what they have agreed and to sign.
Conclusions
Solutions for family mediation are diverse and advantageous, can save time and
unnecessary expenses, and emotionally balance the deadlocked parties. We reiterate
that whatever the subject, whether it is sharing, the exercise of parental rights, the
establishment of the children's domicile, the contribution of parents to child support or
any other misunderstandings that arise in relations between spouses, various external
factors and emotional implications are meant to degrade the lucidity and impartiality of
the subjects concerned, preventing and often prolonging the resolution of the problem.
Through mediation, in general, conflicts of any kind can be resolved in a short
time and with much lower costs compared to a lawsuit in court. When it comes to
resolving conflicts within a family, mediation is the most advantageous way to find
solutions to problems that may seem impossible to overcome, maintaining a calm,
neutral atmosphere, leaving room for trust and objectivity on the part of those involved.
Conflicts shatter society, while peace unifies and strengthens it. Family mediation
therefore leads to prosperity and unity within any group. We want this type of
mediation to be stimulated (not only financially, but also legislatively) in the future,
substantially by state authorities and understood by as many citizens as possible and by
law practitioners alike.
Bibliography:
1. Romanian Academy, Explanatory dictionary of the Romanian language, Romanian
Academy, Encyclopedic Universe, Bucharest, 3rd edition, revised and added, 2009.
2. Adam Gersch, Mediation skills and techniques, A practical guide to conciliation and
mediation, Pb.RoutledgeFalmer, London, 2002.
3. The EU Agency for Fundamental Rights (F, 2015, Child-friendly justice – Perspectives
and experiences of professionals on children’s participation in civil and criminal judicial
proceedings in 10 EU Member States.
4. Alina Gorghiu, “La nivel mondial medierea are o şansă de 60-80% de reuşită”, in the
Piaţa de Capital rubric, http://www.bursa.ro/piatade-capital/la-nivel-mondial-medierea-
are-o-şansă-de-reuşită-de-60-procente-80-procente-198416&articol=198416.html.
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5. Ilie Dorin, Parascheva Dorin, The Mediation Process, University Publishing House,
Bucharest, 2018.
6. Jean-Louis Lascoux, Dictionnaire encyclopédique de la médiation, Paris, 2019
7. Manuela Sîrbu and Diana Monica Croitoru-Anghel, Alternative conflict resolution.
Conflict mediation, Universul Juridic Publishing House, Bucharest, 2015.
8. M. Brotsky, S. Steinman, and S. Zemmelman, Implementarea aranjamentelor de tip
custodie comună prin mediere Joint custody through mediation. In Joint custody and
shared parenting (Folberg, J., Ed.), New York, 1991.
9. R. Doron, F. Parot, Dictionar de psihologie, Editura Humanitas, Bucureşti, 1999.
10. Ştefan Boncu, Negotiation and mediation - psychological perspectives, European
Institute Publishing House, Iaşi, 2006.
11. www.cmediere.ro.
12. https://www.scribd.com/doc/203579466/Aspecte-Procedurale-Practice-Privind-
Medierea-Unui-Divort-Cu-Partaj-Si-Cereri-Accesorii.
13. https://mediatorturcubogdan.ro/partaj-matrimonial.html.
14. https://ro.wolterskluwer.ro/art-259-casatoria/.
15. http://ploiesti-avocat.ro/procedura-divortului-noul-cod-civil/.
304
FREEDOM OF THE PERSON

IN THE CONTEXT OF THE PANDEMIC - COVID 19
Cristina DOBRE*
Abstract: The scientific communication entitled freedom of the person in the context of the
pandemic COVID 19 corresponds primarily of an interest always manifested in our
doctrine to this problem , namely personal freedom as general-human value, it is unanimously
recognized by all legal belief systems, forever being an object of concern both in the vision of
Romanian and foreign authors. The reason, however, in the choice made was the special
relevance that the freedom of the person in pandemic COVID -19 conditions acquires, and not
only, in which the assurance and extension of the person's freedoms is one of the fundamental
features of society. On the other hand, a special interest is in the research on freedom of
the person in the current context, and new trends in our country, which is to increase the
explanatory value of education, with particular emphasis on the functional part of the legal
institutions, without, of course, the traditional, descriptive and interpretative side to lose its
proper place and importance in the study of the present problem.
Keywords: necessity; freedom of the person; Covid pandemic 19; the fundamental
law; criminal law.
1 . Of all rights components of person, only one of the rights must be

examined more closely, from our point of view that is the freedom of the person ,
according to the principle : " People are born and remain free and equal in
rights " (" Declaration of the Rights of Human and of the Citizen1" ) in the context of
pandemic COVID 19. Hence, it appears that this problem is incompatible with the
present society and its removal from the society, eliminating the causes which maintain
it, is a condition sine qua not for us. On the other hand, it could contribute to
preventing the non-application of the provisions regarding the taking of preventive
criminal procedural measures regarding the freedom of the person, against the
criminals prosecuted for committing serious crimes, their omission or arbitrary
application being also an aspect of violation of legality and also an encouragement of
criminals2.
2. In this respect, it was stated3, that in every society there are certain social values
which are have priority, since they are closely linked to the very existence of the
society or the peaceful coexistence of members of society, like social values as are life
and physical integrity of human, freedom, dignity, sexual inviolability, respect for
public authority, property, family relations, etc., values that have an important role in
* PfD candidate, "Titu Maiorescu" University of Bucharest. Email: dobre_cristinaa@yahoo.ro.

1
J.Rivero, Les libertes publiques, Les droits de ľ homme, Presses Universitaires de France, Paris,
1978, pp.242-243.
2
Anita M. Naschitz, Theory and technique in the process of creating law, Bucharest, Academy
Publishing House, 1969, pp. 15 - 17.
3
George Antoniu, Tratat de drept penal (Criminal Law Treaty), vol. I, Universul Juridic Publishing
House, 2015, op. cit. pp. 6.
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the survival of society, therefore satisfying important needs and interests of society
members are of primary interest to them. That is why they are evaluated in social
relations as particularly socially valuable and fundamental. From this evaluation arises
and requires the protection of these values, against those behaviors that tend to harm or
endanger them4.
In addition, it becomes all the more necessary to respect order and discipline in
society, so that all its members enjoy the same possibilities. This explains why
today every citizen is called to isolate himself , to check his/her conduct in relations
with others, meet some requirements and rules exceptional designed to ensure
the orderly activities taking place in relation to the current social order in our
country . This kind of behavior has been well synthesized by Ulpian’s statement made
to his contemporaries: to live honestly, not to hurt the other and give each what he
deserves (honest Vivere, alterum non laedere, suum cuique tribuere).
3. Of course, the discussion of the issue of the person's freedom in the current
context would have required prior clarification or more precisely the recall of the
meaning that doctrine gives to freedom , as a philosophical notion - in the current
conditions and the conscious purpose of people, categories of need and freedom5 –
underlining the issues that are frequent in philosophical literature, for example , that
freedom must be understood only as understanding of the need , but that it should be
reported to responsibility6.
Moreover, we show, among others, that "the development of democracy and in
all its aspects involves increasing social responsibility of every citizen, conscience duty
to act under the supreme imperatives of society, in terms of pandemic COVID -
19. Note that here it is found the idea that freedom is understood necessity7 .
At the same time, another author8, shows, among other things, that "If freedom
presupposes the possibility of choice, responsibility means the appreciation of this
choice in relation to social interests" and that responsibility also means "understanding
the need to fulfill social obligations, consciously motivated activity. Discipline is an
expression and symbol of the unity between freedom and responsibility, it is the
moment when the individual and the society, the person and the collective, the man and
the citizen are reconciled”.
It has been rightly said that freedom must also be understood today in relation to
the quality of human participation in social activities9. This idea has its origins
in specialized works, which show that man is free not as a result of the negative force
4
Vintilă Dongoroz, Drept penal (Tratat) (Criminal Law (Treaty), Bucharest, 1939, op.cit. pp. 5.
5
Alexandru Tănase, Libertate şi necessitate (Liberty and necessity), Bucureşti, Academy Publishing
House, 1960, p.23.
6
Ovidiu Trăsnea, Perfecţionarea democraţiei şi dezvoltarea conştiinţei (Improving Democracy and
Developing Consciousness), in "Class Struggle" (”Lupta de clasă”), 1969, no. 6, p 18.
7
Nicoleta Iliescu, Libertatea persoanei în lumina dispozţiilor din codul de procedură penală (Liberty of
the person in the light of the provisions of the Code of Criminal Procedure), Journal of Legal Studies
and Research, No.3 / 1971 , Romanian Academy Publishing House, pp. 417-433
8
Gheorghe Vasilescu, Probleme ale democraţiei socialiste în etapa actuală (Problems of socialist
democracy in the current stage), debate, in "Class Struggle" (”Lupta de clasă”), 1971, no. 2, op.
cit.p. 62.
9
Opere, 2nd edition, vol. 3, Bucharest, Politica Publishing House, 1962, p. 76.
306
to avoid one thing or another, but as a result of the positive force to manifest his true
individuality, stating that: "only in society the individual receives the means to enable
himself to develop his complex skills; therefore, personal freedom becomes
possible only in society ” . From here, it could be stated that the choice of a certain
system of values, of some life projects ... are necessary for humans not by
themselves, but as a means of self-realization.
In addition, it was argued10 that it is necessary to study the subjective-moral aspect
of freedom, of freedom as internal action, of the internal mechanism of a person's
freedom taken separately (and not only the analysis of the problem of freedom in its
generalized form - integral -, aspect that predominant in the philosophical literature), ie
the relationship between the subjective-internal side of freedom and its realization in
the objective world.
For another author (Hegel)11, the right is the foundation of freedom and
understood as the relationship between several free wills belonging to certain persons.
In this context, we also show the meaning that freedom has as a legal
notion, together with the conclusions reached by the science of law regarding
the freedom of the person as a social value, promoted, developed and protected by legal
norms, although in the Romanian legal literature and the foreign one, which we had the
opportunity to consult, we found this problem quite little researched and substantiated
theoretically12. For example, we did not find a general theoretical foundation of the
freedoms regulated by the Romanian Constitution, a research of their legal nature, of
the relationship between freedom, as an attribute of the human person, and freedom as
an object of legal regulation, because it seems to us that the norms of law configure the
content and determine the extent of the state of freedom, thus establishing the " status
libertatis " of the person, the state of freedom being , therefore , the legal value
established and protected by law, ie the object of legal regulations.
4. From this perspective, it is necessary to make a very general reference to the
system of regulation of fundamental rights in our state and especially to that of
regulating the right of the person to his/her freedom, in order to understand the problem
of our interest and place it in the current context.
5. As it is known, the freedom of the person is affirmed as a fundamental human
right since ancient times, together with the first written manifestations of freedom,
constituting the essential content of declarations, politico-legal documents, and acts of
ancient Rome and in feudalism, forming later the essential content of all the " bills of
rights " and " declaration of rights " adopted century since the 17th century to this
day13. Nowadays14, the recognition of the person's freedom as a fundamental human
10
the person in the light of the provisions of the Code of Criminal Procedure), Revista Studii si Cercetări
Juridice, nr.3/1971, Editura Academiei Române, pp. 417-433
11
GWF Hegel, Principiile filosofiei dreptului (Principles of the Philosophy of Law), pp. 23, 29.
12
Vintilă Dongoroz, in C. Rătescu et al., Codul penal adnotat (Annotated Criminal Code), Bucharest,
1937, p. 236.
13
Ion Ifrim, Ocrotirea penală a vieţii intime a persoanei (Criminal protection of the intimate life of the
person), Universul Juridic Publishing House, Bucharest, 2012, p. 48.
14
Irina Moroianu Zlătescu, Protecţia juridică a drepturilor omului (Legal Protection of Human
Rights), Romanian Institute for Human Rights, Bucharest, 1996, p.75.
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right is becoming more and more important, becoming a universal imperative dictated
by the needs of social progress of today 's society.
As a result, both internationally - in the Universal Declaration of Human Rights
adopted by the UN General Assembly in 1948, in the International Covenant on Civil
and Political Rights, adopted by the same General Assembly in 1966 and in the
European Convention for the Protection of Human Rights signed in Rome in 1950,
which are expressions of contemporary social laws, structures and processes - as at the
national level, in constitutions or other fundamental acts of states, the freedom of the
person receives legal consecration, even if sometimes the recognition of freedom as a
fundamental right remains in the form of a simple principle of law , (abstract
word freedom !) not being ensured the material and legal guarantees for its effective
realization. In this regard, we might ask whose freedom? This word does not mean one
person's freedom from another. Freedom is the freedom to move according to the
fundamental law, etc. Which freedom is it about? the “freedom” of some individuals to
rob, deceive and mislead, or about the “freedom” of people towards the current
situation of society?
6. In the Constitution of our country, the configuration of the person's right to
freedom is determined by the general conditions offered by society in the Covid
pandemic 19, economically, politically, socially and culturally, by the value attributed,
within the concept of the state, our human personality, and the relationship that exists
between different categories of interests and, in particular, between general and
individual interests.
Article 23 of Chapter II of the Constitution presents this general framework of
regulations of the person's right to freedom of the individual, stating in paragraph. 1, as
one of the general purposes of state activity, "ensuring the freedom and dignity of
human, are inviolable ", and further inscribing, one of the general means of achieving
this goal, the guarantee by the state and the full exercise of all citizens' rights, so
including the guarantee of the right to freedom. The cited provision therefore presents
the value of a norm of principle in the matter of exercising the rights of the citizens,
constituting the legal framework of the entire system of guarantees known by our law.
For the right to liberty, they are enshrined in the Constitution of our country, in
addition to the legal guarantee that the general provided in art. 23 para. 1 , which refers,
as we have seen, to the exercise of all fundamental rights, and special guarantees, of
names established for the person's right to liberty, particularized in relation to the
specifics of this right. But how the person's right to liberty has a complex content15, the
Constitution provides for each of its components its own guarantees, adequate and
individualized (customized) in relation to the characteristics and structure of each of
the needles are components. Thus, art. 30 establishes guarantees for freedom of
expression: of speech, of the press, of meetings, of rallies and
of demonstrations; art. 29 for freedom of conscience; art. 27 for the inviolability of
15
Emil Feraru, Inviolabilitatea persoanei – atribut esenţial al dreptului la libertate, asigurat şi garantat de
Constituţia România (Inviolability of the person - essential attribute of the right to freedom, ensured
and guaranteed by the Romanian Constitution), in “Revista Română de Drept (Romanian Law
Review)”, 1967, no. 2, p. 5.
308
the domicile; art. 28 to secrecy of correspondence and telephone conversations, secret

letters, telegrams, other postal and other legal means of communication etc .
In this respect, it is necessary to point out that , under Title II of the Constitution,
entitled " Rights , freedoms and fundamental duties of citizens ", some regulations refer
to the " rights " (eg, right to work, art. 41 the right to education art. 32 ; right to private
property, art. 44, etc. ) , and others to " freedom " ( for example : freedom of
conscience, art. 29, freedom of expression, art. 30 ; economic freedom art.45 ), which
could leave the impression that these freedoms would not also constitute “fundamental
rights” of the citizens, although they are included in the Title called “Fundamental
rights , freedoms and duties ...”.
7. In view of this reality, we assert, like other authors, that although a
distinction would be made in meaning and terminology between "freedoms" and
"rights", "it does not confer on this distinction the character of conceptual and political
categorization, and so the more hierarchical it has. The constitution uses the
term freedom because it is easier to understand as a concept and because this notion
expresses the form of a certain right.
The form of right is determined by the measure of human's independence and
individuality in his/her realization and benefit. If this measure is broader and more
marked, that right is called freedom by the Constitution. So each of the rights is in the
Constitution, at the same time, a form and a degree of freedom, just as each freedom,
on the fact that it is guaranteed by the Constitution, is at the same time a right.
This is the conceptual basis of the distinction between freedom and law, although
these terms are sometimes used as one, either because it has been established
by current practice or because it better clarifies the idea16. International documents
provide for the " right to freedom " of the person. In this regard, see the Universal
Declaration of Human Rights; The Convention for the Protection of Human Rights, in
art. 5; Pact relating to civil and political rights, in art. 9. In this regard, we ask: What’s
the use of all freedoms if in their behalf, the honest citizen cannot have any security?
8. It is the same for the principle of freedom in criminal law. The criminal codes
that outline the democratic principles of "freedom" are just "charters of freedom " for
our state. The person's right to freedom is regulated, as we have seen, in
the Constitution. This provision, although it represents a constitutive norm of
guarantees of the realization of this right, contains first of all, although implicitly, the
recognition of the inviolability of the person as a fundamental human right.
The provision of par. 1 in art. 23 of the Constitution must also be interpreted in the
light of the constitutional provisions of art. 15, which implicitly contain the obligation
of the state to establish a system of special guarantees likely to ensure the effective
exercise of the person's right to inviolability. As an example, we can cite
incriminations in the field of criminal law that establish such special guarantees of
inviolability on the person: the provision of art. 205 Criminal Code which criminalizes
the act of illegally depriving a person of freedom; provisions of art. 209 Criminal
16
La conception des libertes humaines et Ies nouveaux droits de l'homme dans la Constitution de la
Jougoslavie, in „Revue de droit contemporaine”, 1968, no. 1, pp. 117.
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Code which criminalizes the trafficking and exploitation of vulnerable persons, in other
cases than those provided by legal provisions, in the performance of work against
his/her will or in compulsory labor (art. 212 of the Criminal Code); to threaten a person
with the commission of a crime or a harmful act directed against him/her, her husband
or a close relative, if it is likely to alarm him/her (art. 206 C. pen.); blackmail (art. 207
of the Criminal Code) are crimes that the Criminal Code even calls “ Crimes against
the person's freedom ”, the last two incriminations cited by us above are guarantees of
the person's mental inviolability17.
9. We note, at the same time, that these codes exclude the freedom
of employee through a series of prohibitions; they restrict and even suppress freedom
of strike, freedom of association, freedom of opinion etc . For example, for the author
Bentham18 there are ambiguous phrases about the shortcomings of the English judicial
system , about the principles of legality, freedom and equality in English criminal
law. Under these equivocal phrases, however, the quoted author hides the English
political program - owner and exploiter, which intertwines distrust and enmity against
the people with a lot of prejudice. Hardly anyone has spoken so pathetically of holy
property, no one has restored the fear of its property, no one has glorified the laws
that punish violations of private property, as Bentham did. In his vision, the right of
property represents only the ideas of pleasure, of satisfaction, this right strengthened in
man the natural repulsion towards work, gave man dominion over the earth, urged him
to give up nomadic life, giving birth to love of country and love for
descendants. Delight and still no work - this is the general desire of the people. This
desire is a terrible thing, because it could raise all the unrighteous against the rich, and
the law that restrains this desire is the supreme triumph of mankind over itself 19.
10. One of the areas most likely to produce violations and freedom of the person is
a criminal trial. As such, it was felt the need to include in the Constitution special
guarantees for this field, which we find provided in par. 2 of art. 23 , guarantees that
refer to some of the preventive measures regarding the person's freedom, which can be
taken by the criminal bodies during the criminal process.
Thus, art. 23 para. 2 states that " search warrant, detention or arrest of a person is
only allowed in cases and procedure provided by law. Investigative bodies may order
the detention of a person for a maximum period of 24 hours. Pre-trial detention is
ordered by the judge and only during the criminal trial.
During the criminal investigation, the pre-trial detention may be ordered for a
maximum of 30 days and may be extended by a maximum of 30 days, without the total
duration exceeding a reasonable term, and not more than 180 days. In the trial phase,
the court is obliged, under the law, to verify periodically, and no later than 60 days, the
legality and validity of the pre-trial detention and to order, immediately, the release of
the defendant, if the grounds that determined the preventive arrest stopped or if the
court finds no new grounds that could justify a deprivation of freedom. The court's
17
George Antoniu, Tudorel Toader (coordinators) etc., Explicaţiile noului Cod penal (Explanations of the
new Criminal Code. vol. III, Universul Juridic Publishing House, Bucharest, 2015, p. 24.
18
Jeremy Bentham, Théorie des peines et des récompenses, Brussels, 1829; J. Bentham, Traité de
législation civile et pénale, Brussels, 1829, p. 5.
19
Jeremy Bentham, Opere alese (Selected opera), vol. I, translated 1867, pp. 540.
310
decisions regarding the measure of pre-trial detention are subject to the remedies
provided by law. The detained or arrested person shall be informed immediately, in the
language he/she understands, of the reasons for the detention or arrest, and the
accusation, as soon as possible; the accusation is brought to light only in the presence
of a lawyer, chosen or appointed ex officio. The release of the detained detainee is
mandatory, if the reasons for these measures have disappeared, as well as in other
situations provided by law. The person remanded in custody has the right to request
his/her provisional release, under judicial control or on bail. Until the final judgment of
the conviction remains, the person is considered innocent. No punishment can be
established or applied except under the conditions and under the law. The sanction of
deprivation of liberty can only be of a criminal nature”20.
The provisions from par. 2 in art. 23 of the Constitution, which refers to
the freedom of the person participating in criminal proceedings, concerns only
preventive measures (deprivation or restriction of freedom) of
a procedural nature , which can be taken by criminal bodies during
criminal proceedings, until the decision is handed down - and between these only arrest
and detention. They do not refer to other legal ways of deprivation or restriction of the
person's freedom, which may intervene in the criminal process, such as the measures
that can be taken by the court against the minors who have committed a crime and who
are criminally liable ( regime of educational measures of deprivation of
freedom : hospitalization in a special re-education institute , provided by art. 124 ) or
some security measures can be taken by the court against persons who have committed
deeds provided by law ( medical hospitalization , provided by art. 104 letter b, of
the Criminal Code - which can be taken provisionally during the criminal investigation
or the prohibition to be in certain localities provided by Article 133 of the Criminal
Code, etc. ), all these measures having the character of criminal law sanctions21.
All these guarantees, although characterized as rules of constitutional character of
fundamental guarantees, under which rules included is the law such as criminal law
and law enforcement, materialize and develop them.
The provision in the fundamental law itself, of some guarantees specific to the
criminal process proves that we are in the presence of a problem of the greatest social
importance, not only because by taking preventive measures the human is deprived of
his/her fundamental right, (or is restricted), but also by the consequences that usually
occur as a result of taking such measures, such as: the impression of the person against
whom the preventive measure was taken that he/she is presumed guilty, his/her
consideration by those around him/her as guilty, doubt on his/her guilt which remains
generally after is the person is free again or detained incidences taking such measures
20
Voicu Puşcaşu, Cristinel Ghigheci, Codul penal adnotat, vol I, Partea generală, Universul Juridic
21
Mihail Udroiu, (coordonator), Codul de procedură penală, Comentariu pe articole, ediţia 3, Ed.
C.H.Beck, p. 1340 şi urm.; VINTILĂ DONGOROZ, SEGFRIED. KAHANE, I. OANCEA, I. FODOR, NICOLETA
ILIESCU, CONSTANTIN BULAI, RODICA. STĂNOIU, V. ROŞEA, Explicaţii teoretice ale codului penal român,
vol. II, BUCUREŞTI, EDITURA ACADEMIEI, 1970, P. 274, 284, 239, 246; V. Dongoroz, S. Kahane, I.
Oancea, I. Fodor, N. Iliescu, C. Bulai, R. Stănoiu, V. Roşea, Explicaţii teoretice ale codului penal
român (Theoretical explanations of the Romanian criminal code), vol. II, Bucharest, Academy
Publishing House, 1970, pp. 274, 284, 239, 246.
311
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plan labor relations of the defendant ( example, art. 50 paragraph g of labor Code that
the employment contract is suspended by law) and family relations - which sometimes
require taking in the latter case, for the persons in custody of the arrested or detained,
social protection measures, as provided, in the Criminal Code in force.
The guarantee of the inviolability of the person in the criminal trail, which as we
have seen is elevated to the rank of constitutional principle, is also provided in the
provisions of the Code of Criminal Procedure, with principle value in the criminal
process, as a basic rule ; art. 9 C. pen. procedure., entitled “The right to freedom and
security ”, thus provides that “During the criminal proceedings the right of every
person to freedom and security is guaranteed ”.
In relation to those evoked, it could be argued that: the restriction of
freedom arises from the laws of nature which confer the human rights and obligations
(especially, it imposes on man the obligation to respect human rights).
The judge is the protector of both domestic and foreign law22; a human is free in
so far as he subordinates his passions to reason; the right to punish in the hands of man
has its origin in the eternal law of order, derived from absolute reason23.
11. Another problem arises due to the pandemic COVID 19, applicable
competition laws. We ask which of two or more laws will be applied to solve a
relation of conflict? Before answering the question, we should specify the following:
In connection with this, it should be mentioned that in the legal literature some
opinions have been expressed in the sense that24, there is a competition whenever two
or more criminal laws contain norms that regulate the content of the same subject, but
one of the laws contains a general regulation (common, ordinary), while the other
laws contain a special regulation, extraordinary).
In this case, the special law will have priority because it was drafted to derogate
from the general law (lex specialis derogat legi generali) , while the general rule,
without being repealed, gives way to the special rule and ceases its authority during
special law in the regulation of the same matter. This character of the special law
becomes evident when it is subsequent to the general law. If the general law appears
after the special law, the latter remains in force, considering that the general law
repeals only the previous general law. But the subsequent general law may explicitly
state that it also repeals the previous special criminal law or if it follows from the
general law that the legislator regulated in this law the situation regulated in the special
law. If the subsequent general law does not replace a previous general law, but it is
new, it will also repeal the previous special law, considering that the intention of the
legislator was that instead of the various provisions isolated from the special laws to
give a unitary, new regulation. In this case, as pointed out above, the special law would
only exist if the general law explicitly states that this law remains in force or that this
conclusion undoubtedly results from the new law.
22
Vintilă Dongoroz, Tratat de drept penal (Criminal Law Treaty), op. cit., pp. 189-192.
23
F. Carrara, Programma del Corso di diritto criminale , parte generale, Quarta ed., Lucca, 1871, first
edition 1859, p.24.
24
Idem, op.cit . pp. 289.
312
It has been stated that25, special laws are supplemented by the provisions of the
general law (which constitutes the common law), where the special law does not
explicitly provide that it derogates from the common law. If the special law is silent or
refers to the common law, the provisions of the general law shall apply. If the general
law is amended, the completion will be made in relation to the new law, and if the new
law includes new institutions, they will also apply to the special law, if they are
compatible with its compensations. In this respect, the legislature of the Criminal code
in force, considering all solution as a matter of course, especially if we consider the
scope of the measures by which the law defines criminal law in art. 177 of the
Criminal Code . By this any provision contained in organic laws, emergency
ordinances or other normative acts that at the date of their adoption had the force of
law. In our legislation, the criminal provisions of the extra- criminal laws that include
incriminations and punishments, as well as the provisions of the special part of the
Criminal Code have the character of a special law. If the same situation is regulated by
the special part of the Penal Code and by an extra-criminal law, the latter is applied,
considering that it better concretizes and particularizes the conditions for incriminating
the respective deed. These provisions will have a more special character than those in
the special part of the Criminal Code. But a criminal law can subsist alongside
another criminal law by regulating the same matter, but providing for different
sanctions. If the new law contains a provision recognizing its subsidiarity by
stipulating, for example, that it applies if there is no other law providing for a
more severe punishment, then the substitute law may be the general criminal law or a
rule of law, the special part of the Criminal Code in relation to the criminal norm of the
extra-criminal law. Subsidiarity removes the specialty of criminal law.
The conclusion would be that according to the principle of criminal law activity,
the application of a criminal law retroactively or actively is excluded, ie in situations
that would exceed the limits within which the principle of criminal law activity
operates, it is valid in relation to the most common situations (de eo quod plerumque
fit), namely when an act committed under the law in force is prosecuted, tried,
sanctioned, and the punishment is executed under the same law, all the consequences
of the deed being exhausted during the application of the same law. However, the
reality is that the entry into force of a criminal law can find unresolved situations, ie
legal relationships born before the entry into force of the new law, but closely related to
the new law entered into force , or the new law may introduce a incrimination
completely unknown to the previous law (incriminatio ex novo) ; these transitional
situations may refer to isolated criminal provisions or successive criminal codes26.
Some authors call the above situations the conflict of criminal laws in time , term,
according to some authors27, inappropriate because in the above cases it is not about
two laws in force at the same time and which cannot be reconciled (they are in
25
Ion Ifrim, Roxana Oana Ionescu, Drept penal, Partea introductivă (Criminal Law, Introductory Part),
2012, p. 104.
26
Vintilă Dongoroz and collaborators, Explicaţii teoretice ale codului penal român, partea generală
(Theoretical explanations of the Romanian criminal code, general part), vol. I, Romanian Academy
Publishing House, 1969, p.62.
27
George Antoniu, Tratat de drept penal (Criminal law treaty), vol. I, op. cit. pp. 123.
313
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conflict), but about a repealed law and a new law in force, as well as situations not
resolved by the previous law, which would be solved according to one of the
successive criminal laws; it is therefore a question of an interdependence of the two
wills expressed by the new law with respect to the criminal law relations born under
the old law and which must be resolved after its abrogation. That is why the correct
name would be " transitional situations ", and not a conflict of criminal laws in time28.
Conclusions
In the end of this scientific communication we would like to make two

clarifications, which we can consider the conclusions of the developed ideas so far.
The first refers to the establishment of the relationship between the right to liberty
of the person against whom a preventive measure is taken in criminal proceedings and
these measures, namely that the preventive measure taken against a person under
investigation or trial does not constitute a violation or suppression29 of its right to
freedom, but a limitation of the exercise of this right, which is brought to some persons
who have been shown to be a misuse of the freedom granted by law, an imposed and
justified limitation by the deeds committed by these persons, by the position they
themselves held towards society as a whole, because it would not be fair to
grant absolute freedom to these persons to threaten the freedom of honest people (we
have shown that the essential condition for taking these measures - also provided for in
the Constitution - is the existence of solid evidence and indications that that person has
committed an act provided for and punished by law30).
The second conclusion would be that preventive measures of criminal procedure
are minimal limitations of the right to freedom, absolutely necessary, with the nature
of exception and strictly specified and determined by law, serving as guarantees of
ensuring maximum freedom31, which cannot be achieved without these minimum
limitations, the assurance of those maximum freedoms constituting in fact the social
function of the preventive measures, which we have proposed, to establish.
These are just some of the problems arise about the freedom of the individual in
the pandemic COVID 19. In order to solve these problems, we were driven by the need
to obey the specific text of the legal field, which is the object of our concerns, of the
general conception regarding the exercise of the freedom of the person and the legal
limitations that are imposed.
28
Vintilă Dongoroz, Drept penal (Criminal Law), op. cit ., p. 123.
29
The Universal Declaration of Human Rights enshrines the legal obligation for states, groups and
individuals not to infringe on the essence of fundamental rights and freedoms, not to abolish them.
30
the person in the light of the provisions of the Code of Criminal Procedure), op.cit. pp. 432 .
31
Regarding the general nature of the limitations of the law, see in detail, Anita Naschitz, op. cit., pp. 237.
314
Bibliography:
1. NASCHITZ, Anita M., Theory and technique in the process of creating law, Bucharest,
Academy Publishing House, 1969;
2. ANTONIU, George, Tratat de drept penal (Criminal Law Treaty), vol. I, Universul
Juridic Publishing House, 2015;
3. DONGOROZ, Vintilă and collaborators, Explicaţii teoretice ale codului penal român,
partea generală (Theoretical explanations of the Romanian criminal code, general
part), vol. I, Romanian Academy Publishing House, 1969;
4. IFRIM, Ion; IONESCU, Roxana Oana Drept penal, Partea introductivă (Criminal Law,
Introductory Part), 2012;
5. DONGOROZ, VINTILĂ; SEGFRIED. KAHANE, I. OANCEA, I. FODOR, NICOLETA ILIESCU,
CONSTANTIN BULAI, RODICA. STĂNOIU, V. ROŞEA, Explicaţii teoretice ale codului penal
român, vol. II, BUCUREŞTI, EDITURA ACADEMIEI, 1970;
6. ANTONIU, George; TOADER, Tudorel (coordinators) etc., Explicaţiile noului Cod
penal (Explanations of the new Criminal Code. vol. III, Universul Juridic Publishing
7. PUŞCAŞU, Voicu; GHIGHECI, Cristinel, Codul penal adnotat, vol I, Partea generală,
8. MOROIANU ZLĂTESCU, Irina, Protecţia juridică a drepturilor omului (Legal
Protection of Human Rights), Romanian Institute for Human Rights, Bucharest, 1996;
315
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CHALLENGES IN THE ROMANIAN LAW CAUSED

BY THE SARS-CoV-2 PANDEMIC
Andrada-Georgiana MARIN*
Abstract: In this study, we intend to analyze a topic of interest in the SARS-Cov-2

pandemic in Romania, which is technical unemployment, showing general aspects, choosing, as
departure point for our research, the legislative regulation existing during the outbreak of the
SARS-CoV-2 pandemic, respectively the decree instituting the state of emergency and of alert in
Romania, until the latest regulations adopted in relation to this matter. The SARS-CoV-2
pandemic has generated numerous changes at international and national level, felt in several
waves, changes that have been translated by a series of regulations and normative acts adopted
to prevent the spreading of the virus, to limit its effects and to support those affected, by
implementing necessary measures in this regard, concerning all areas of interest.
Keywords: SARS-CoV-2 pandemic, state of emergency, state of alert, legislative measures,
technical unemployment, state of emergency certificate, employees, hired personnel, persons
that are not hired personnel, persons operating an enterprise, indemnity.
1. Introduction
The year 2020 was marked by the SARS-CoV-2 pandemic, which generated
strong changes in the social, economic, fiscal, legal, political, religious, health,
educational, cultural, tourist fields and so on, both at international, and at national
level.
The effects of the pandemic have been felt more aggressively or more gently by
each of us, but what is certain is that the modern world has gone through a global
crisis, and we are not talking about a health crisis only, but of a crisis that has
profoundly marked our existence, values, perceptions, prospects and ourselves, as
individuals with rights and obligations.
The year 2021 was welcome with a strong thought of hope to return to normal, to
that normal which we are attempting to rediscover by walking outdoors without
wearing a face mask, by meeting our loved ones, by participating in certain events, by
going on expeditions and trips, by
attending classes, by sharing and exchanging information by organizing
international and national conferences, and so on.
As follows, we intend, through this study, to show some of the challenges
generated in Romanian law by the SARS-CoV-2 pandemic, without an exhaustive
character, with particular regard to technical unemployment.
* Research Assistant PhD Student at the Doctoral School of the Faculty of Law at „Nicolae Titulescu”
University of Bucharest, Public Law Section, at the Subject of General Theory of Law, e-mail:
andrada_marin549@yahoo.ro.
316
2. Content
Section 1. General matters

On March 11, 2020, the World Health Organization declared the COVID-19
epidemic as pandemic. A pandemic is an epidemic that spreads over a very large
territory, covering one country, several countries or continents.
Thus, on March 16, 2020, by the Decree of the President of Romania
no.195/20201, the state of emergency was instituted on the territory of Romania for a
period of 30 days, and it was subsequently extended, at the same time adopting a series
of measures in several fields, namely economic, fiscal, health, labor and social
protection, judicial and other such fields of interest.
According to art. 93 para. (1) of the Romanian Constitution, the President of
Romania institutes, according to the law, the state of siege or the state of emergency in
the whole country or in some territorial administrative units, and asks the Parliament
to approve the adopted measure, within 5 days, at most, after taking it.2
Among the most important measures ordered by Decree no. 195/2020, regarding
the economic and fiscal field, we remind that:
(1) at the beginning of the state of emergency, the Romanian Government
declared that it would adopt a series of measures to support the economic operators in
the fields affected by the SARS- CoV-2 pandemic, without providing precise
information on what they would consist of;
(2) The Ministry of Economy, Energy and Business Environment has been in charge
with issuing, upon request, to economic operators whose activity was affected by the
SARS-CoV-2 pandemic, state of emergency certificates based on supporting documents;
(3) maintaining the validity of documents issued by public authorities whose
validity ceased during the state of emergency, for example: building permits, urban
planning certificates, any other authorizations including operation licenses, etc.;
(4) the possibility of capping the prices for medicines and medical devices, for
food of strict necessity and for public utility services (electricity and heat, gas, water
supply, sanitation, fuels, etc.), within the average price of the last 3 months before
declaring the state of emergency.
Among the most important measures in the field of health, work and social
protection, we show, by way of example, and not exhaustively: (1) the settlement of
medical leaves granted to persons held in quarantine because of COVID-19, carried out
with priority by providing additional amounts to the FNUASS budget at the necessary
level; (2) the Government may support employers and employees affected by the
effects of the COVID-19 crisis, by derogating from the legal provisions in force; (3) by
order of the Minister of Labor and Social Protection, social protection measures are
established for employees working in the economic sectors, and their families, whose
1
Decree no. 195 of March 16, 2020 on the establishment of the state of emergency on the territory
of Romania, published in the Official Journal of Romania, Part I no. 212 of March 16, 2020.
2
The Romanian Constitution, published in the Official Journal of Romania, Part I no. 767 of October 31, 2003.
317
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activity is affected or stopped totally or partially by decisions of public authorities,

during the state of emergency; (4) privately held companies introduce, where possible,
during the state of emergency, work at home or telework, by unilateral act of the
employer; (5) The Ministry of Labor and Social Protection recommends three measures
to make employment relations more flexible, namely: (a) establish individualized work
schedules, with the consent or on the request of the concerned employee; (b) temporary
change the working place at the employee's home; (c) carry out the activity by
telework, when the accomplishment of the duties specific to the occupied position,
occupation or profession of the employee involves the use of information and
communication technology; (6) during the state of emergency, the controls of
employers by the territorial labor inspectorates will be suspended, except for the
controls ordered by the Minister of Labor and Social Protection, those ordered by the
Labor Inspectorate for the implementation of the decisions of the National Committee
for Special Emergency Situations (concerning the observance of measures set on the
background of the pandemic/state of emergency), of those necessary in order to settle
the complaints alleging the commission of acts with a high degree of social danger and
for the investigation of accidents at work, and (7) maintain the validity of collective
bargaining agreements and of collective agreements during the state of emergency.
In the field of justice, by Decree no. 195/2020 on instituting the state of emergency
on the territory of Romania, it was provided as follows:
(1) the prescriptions and time limits of any kind do not start to elapse, and, if they
started elapsing, they are suspended for the entire duration of the state of emergency
established by Decree no. 195/2020, provisions of art. 2,532 point 9, thesis II of Law no.
287/2009 on the Civil Code3 or other contrary legal provisions not being applicable;
(2) during the state of emergency, the trial activity continues in cases of particular
emergency;
(3) the foreclosure activity continues only in cases where it is possible to comply
with the rules of health discipline established by decisions of the National Committee
on Special Emergency Situations, in order to protect the rights to life and physical
integrity of participants in foreclosure; the organization of public tenders within the
procedures for capitalization of frozen movable assets in criminal proceedings is
suspended by law;
(4) pursuant to Decree no. 195/2020, the judgment of civil trials, other than those
established as being of particular emergency, is suspended by right during the state of
emergency established by decree, without requiring any procedural act for this purpose;
(5) the deadlines for exercising remedies in cases of non-particular emergency,
pending at the date of instituting the state of emergency, will be interrupted, and new trial
dates will be set, of the same duration, from the date when the state of emergency ceases;
(6) after the cessation of the state of emergency, the judgment of the trials is
resumed ex officio, so within 10 days after the cessation of the state of emergency, the
court will take measures to set trial dates and to summon the parties;
(7) during the state of emergency, the activity of the National Trade Register
3
Law no. 287/2009 on the Civil Code, republished in the Official Journal, Part I no. 505 of July 15, 2011.
318
Office and of the offices of the trade registers subordinated to courts will continue with
regard to the registration of mentions concerning legal persons and natural persons
registered in the trade register, and will be carried out by electronic means, based on
the application for registration of mentions and documents attached thereto in
electronic form, with the extended electronic signature incorporated, attached or
logically associated; copies of the operated registrations and of the documents
submitted by the applicants, the information on the recorded data and the certificates of
good standing will be issued electronically.
The state of emergency established by the Decree of the President of Romania no.
195/2020 was extended by the Decree of the President of Romania no.240/20204, and,
between May 15, 2020 until present time, the state of alert has been enforced.
Both the state of emergency, and the state of alert have generated in the legislative field
the adoption of numerous legislative acts in order to regulate the fields of social, economic,
fiscal, political, legal, educational, sanitary, religious, cultural, tourist interest, etc.
As follows, we limit our study by showing only general matters regarding
technical unemployment during the SARS-CoV-2 pandemic in Romania, departing
from Law no. 53/2003 on Labor Code up to the normative acts where we find specific
regulations adopted during the SARS-CoV-2 pandemic, and not only, such as:
Government Emergency Ordinance no. 30/20205, Government Emergency Ordinance
no. 32/20206, Government Emergency Ordinance no. 53/20207, Law no. 59/20208,
Government Emergency Ordinance no. 211/20209, Law no. 58/202110.
4
Decree no. 240 of 14 of 14 April 2020 on the extension of the state of emergency on the territory
of Romania, published in the Official Journal of Romania, Part I no. 311 of April 14, 2020.
5
Government Emergency Ordinance no. 30/2020 for amending and supplementing certain normative
acts, as well as for establishing measures in the field of social protection in the context of the
epidemiological situation determined by the spread of SARS-CoV-2 coronavirus, published in the
Official Journal of Romania, Part I no. 231 of March 21, 2020.
6
Government Emergency Ordinance no. 32/2020 on amending and supplementing Government
Emergency Ordinance no. 30/2020 for amending and supplementing certain normative acts, as well as
for establishing measures in the field of social protection in the context of the epidemiological
situation determined by the spread of SARS-CoV-2 coronavirus and for establishing additional
social protection measures, published in the Official Journal of Romania no. 260 of March 30, 2020.
7
Government Emergency Ordinance no. 53/2020 for the amendment and addition to certain normative
acts regarding social protection measures determined by the spread of the SARS-CoV-2 coronavirus,
published in the Official Journal of Romania, Part I no. 325 of April 21, 2020.
8
Law no. 59/2020 on the approval of Government Emergency Ordinance no. 30/2020 for amending
and supplementing certain normative acts, as well as for establishing measures in the field of
social protection in the context of the epidemiological situation determined by the spread of SARS-
CoV-2 coronavirus, published in the Official Journal of Romania, Part I no. 416 of 19 May 2020.
9
Government Emergency Ordinance no. 211/2020 on the extension of the application of certain social
protection measures adopted in the context of the spread of the SARS-CoV-2 coronavirus, as well as
for amending Government Emergency Ordinance no. 132/2020 on support measures for
employees and employers in the context of the epidemiological situation caused by the spread
of SARS-CoV-2 coronavirus, as well as to stimulate employment growth, published in the Official
Journal of Romania, Part I no. 1189 of December 7, 2020.
10
Law no. 58/2021 for the approval of Government Emergency Ordinance no. 211/2020 regarding the
extension of the application of certain social protection measures adopted in the context of the
spread of the SARS-CoV-2 coronavirus, as well as for amending Government Emergency
Ordinance no. 132/2020 on support measures for employees and employers in the context of the
epidemiological situation caused by the spread of SARS-CoV-2 coronavirus, as well as to stimulate
employment growth, published in the Official Journal of Romania, Part I no. 345 of April 5, 2021.
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Section 2. Technical unemployment. Generally valid rules

Technical unemployment is a measure that reduces or temporarily interrupts the
activity, which the employer may order when going through a difficult period, usually
from an economic, technological or structural point of view.
According to the provisions of art. 52 para. (1) lit. C). of the Labor Code11, the
individual employment contract may be suspended at the initiative of the employer in
case of temporary interruption or reduction of activity, without termination of
employment, for economic, technological, structural or similar reasons.
During the reduction and/or temporary interruption of the activity, the employees
involved in the reduced or interrupted activity, who no longer carry out any activity,
benefit from an indemnity, paid from the salary fund, which cannot be less than 75% of
the basic salary corresponding to the job held.
In case of temporary reduction of activity, for economic, technological, structural
or similar reasons, for periods exceeding 30 working days, the employer will have the
possibility to reduce the working hours from 5 days to 4 days per week, with the
corresponding reduction of salary, until the situation that caused the reduction of the
work schedule is remedied, after prior consultation of the representative union at unit
level, or of the employees' representatives, as the case may be.
At the same time, during this period, the employees will be at the employer’s
service, and the latter has at any time the possibility to order the resumption of activity.
Regarding the possibility for the employer to place its employees under technical
unemployment, there may be causes that require the reduction or temporary
interruption of activity: economic, technological, structural difficulties, such as:
replacement of equipment, its modernization or repair, reorganization of subunits
(sections, workshops, laboratories, etc.) or even work teams.
There may also be other situations when the employer interrupts or temporarily
reduces the activity and requires the suspension of employment contracts of
employees, but any such cause must be of an objective nature and the measure will be
provisional, namely until the date when the cause determining the technical
unemployment is remedied.
Such a cause may even be the state of emergency instituted by Decree no.
195/2020 in Romania and extended by Decree no. 240/2020, the authorities adopting
measures prohibiting the activity of economic agents in certain sectors; therefore,
during the interdiction, the affected economic operators were able to send their
employees into technical unemployment.
The reduction or temporary interruption of the activity must not concern only one
employee, but it regards, at least, the activity carried out by the employees of a
structure or a department, which will no longer be active for a certain period, with the
prospect of resuming the activity after the situation causing the interruption is
overcome.
11
Law no. 53/2003 on Labor Code, republished in the Official Journal, Part I no. 345 of May 18, 2011.
320
In the event that the employer objectively decides that it no longer needs a certain
position (but not an employee), then it may be ordered to dissolve that position, by
removing it from the organizational chart, with the consequence of dismissing the
employee for reasons not blamable on the employer, and such a position can no longer
be created for at least 6 months.
Consequently, the employer will be able to suspend the individual employment
contract by sending the employee into technical unemployment only if there is an
objective reason in this regard, which does not depend on his exclusive will.
If, objectively, the employer could no longer meet the demands of the market
economically and, although it would reduce its activity, it would still be bound to pay
employees' salaries for work which is no longer performed, they would be in the
situation when its property right may be irreparably impaired, in which case the
employer is entitled to opt for technical unemployment.
The measure of suspending the individual employment contract of an employee is
a measure of internal management of the company, but it must comply with the
requirements set in art. 52 of the Labor Code, because otherwise it would be possible to
abusively exercise the employer's rights regarding the employee’s work relations, and
the latter may challenge the decision of suspension before the courts, which could order
the annulment of the decision and the resumption of activity by the employee with the
payment of 100% of the salary.
As regards the manner of deciding on technical unemployment, the employer has
two possibilities, depending on his needs and on the financial reserves, namely: (1) to
temporarily reduce the work schedule due to the reduction of activity, or (2) to
temporarily suspend the individual employment contract.
Thus, the temporary reduction of the work schedule after reducing the activity
implies:
a) the temporary reduction of the work schedule following the reduction of the
activity for economic, technological, structural or similar reasons;
b) ordering this measure only when the reduction of the activity exceeds 30
working days and until the situation causing the reduction of the schedule is remedied;
c) reduction of the work schedule from 5 days to 4 days per week;
d) proportional reduction of the salary with the reduction of the work schedule;
e) in advance, employer’s consulting with the employees' union/representatives to
see if other more favorable measures could be identified;
f) ordering the measure by the unilateral decision of the employer, but after
previously informing the employees and subsequently registering it in ReviSal at least
one day before the enforcement of the decision, as it represents a change of the work
relations.
In order to avoid the risk that the employer's unilateral decision concerning the
reduction of the work schedule be canceled by a court on the request of a dissatisfied
employee or the risk of a sanction being imposed by the competent authorities under
control, it is recommended that such a measure be thoroughly documented and
prepared in advance, which may involve, for example: the adoption of a decision by the
company’s General Assembly of Shareholders, by which the shareholders may decide
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to reduce the activity; these documents must show that the employer has consulted with
the employees’ union/representatives, they must also show that the employees have
been explained the reasons why such a measure was necessary and what it would
consist of, the report justifying the need to temporarily reduce the activity, that would
be the basis for issuing the unilateral decision, the period in which the activity would
be reduced, the affected positions/jobs, etc.
The second form that technical unemployment can take is the temporary
suspension of the individual employment contract, which involves:
a) ordering the measure of temporary suspension of the individual employment
contract for economic, technological, structural or similar reasons;
b) ordering the measure when the activity of the company is temporarily reduced
or totally interrupted;
c) ordering the measure when the temporary reduction of the work schedule is not
sufficient or is not possible;
d) the employees who will no longer carry out such activity will benefit from an
indemnity of at least 75% of the basic salary corresponding to the position occupied by
the employee;
e) the technical unemployment benefit can be supplemented by the employer;
f) the employees will not be able to carry out another activity within the company,
but will be at the service of the employer in order to return at any time when the
activity is resumed;
g) in advance, the employer consulting with the employees’ union/representatives
to see if other more favorable measures can be identified;
h) ordering the measure by unilateral decision of the employer, but after
previously informing the employees and subsequently registering it in ReviSal at least
one day before the enforcement of the decision, as it represents a change of the work
relations.
As previously stated, in case of temporary reduction of the work schedule due to

the reduction of activity, and in case of temporary suspension of the individual
employment contract, in order to avoid the risk of a court canceling the employer’s
unilateral decision regarding technical unemployment by a dissatisfied employee or the
risk of a sanction from the competent authorities under control, it is recommended that
such a measure be thoroughly documented and prepared in advance.
Section 3. Technical unemployment during the state of emergency

After reading the previously shown provisions, we may notice that the previously
enumerated matters represent generally valid rules regarding technical unemployment,
rules that, during the state of emergency decreed in Romania, were supplemented by
the provisions that will be shown as follows.
The specific provisions established regarding the technical unemployment during
the state of emergency/state of alert were implemented, on a temporary basis, by
Government Emergency Ordinance no. 30/2020, Government Emergency Ordinance
322
no. 32/2020, Government Emergency Ordinance no. 53/2020, Government Emergency

Ordinance no. 53/2020, Law no. 59/2020, Government Emergency Ordinance no.
211/2020 and Law no. 58/2021.
Government Emergency Ordinance no. 30/202012 stipulates which categories of
employees may benefit from the payment of technical unemployment by the State, during
the period of temporary suspension of the individual employment contract at the
employer’s initiative, as a result of the effects produced by the SARS-CoV-2 pandemic.
According to the Government Emergency Ordinance no. 30/2020, the
beneficiaries of the measure of technical unemployment are the employees whose
employers interrupt the activity totally or partially based on decisions issued by the
competent public authorities according to the law, during
the instituted state of emergency, who hold the state of emergency certificate
issued by the Ministry of Economy, Energy and Environment (especially targeting the
economic operators who own restaurants, hotels, cafes or other public places, those
who carry out cultural, scientific, artistic, religious, sports, entertainment or gambling
activities, etc.), but also employees of the economic operators that reduce their activity
due to the effects of the SARS-CoV-2 pandemic, who do not have the financial
capacity to sustain the payment of all their salaries.
In order to settle the technical unemployment benefit, among the formalities to be
carried out, we are also showing the following:
(a) the legal representative of the company must submit a signed and dated
application, complying with the standards set out in Annexes no. 1 and 2 of Ordinance
no. 30/2020, to the employment agency in whose range the employer has its registered
office;
(b) Annex no. 1 will be filled in by the employers who have obtained the state of
emergency certificate issued by the Ministry of Economy, Energy and Business
Environment, which will be attached to the application;
(c) Annex no. 2 will be filled in by the other category of employers, namely by
those who will attach than affidavit submitted by the applicant showing that it records a
decrease in cash-ins from the month prior to submission, by a minimum of 25%
compared to the average cash-ins from January-February 2020, and that it does not
have the financial capacity to pay all the employees;
(d) the application will be submitted by e-mail and will be joined by a list of
persons that are to benefit from this indemnity, in accordance with Annex no. 3 of
Ordinance no. 30/2020;
(e) the documents are submitted in the current month for the payment of the
previous month's indemnity, and the payment from the unemployment insurance
budget of the indemnities is made no later than 30 days after the submission of the
documents.
It must be mentioned that the Labor Code does not provide a maximum period for
placing the employee in technical unemployment, so we can say that the measure can
be maintained until the time when the cause determining it has ceased.
12
op. cit., published in the Official Journal of Romania, Part I no. 231 of March 21, 2020.
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Section 4. Technical unemployment on the background of the provisions

of Government Emergency Ordinance no. 32/2020
On 30.03.2020, Government Emergency Ordinance no. 32/2020 was published in
the Official Journal, Part I no. 260, concerning the amendment and addition to the
Government Emergency Ordinance no. 30/2020 for the amendment and addition of
certain normative acts, as well as for establishing measures in the field of social
protection in the context of the epidemiological situation determined by the spread of
SARS-COV-2 coronavirus, and for establishing additional social protection measures.
This Ordinance brought a series of additions and amendments to the previous
provisions of Emergency Ordinance no. 30/2020, of which we specify:
(1) during the state of emergency, technical unemployment indemnities are
incurred by the State, so that employers may benefit from this indemnity granted in the
form of State aid, if their activity is affected by the SARS-CoV-2 pandemic
(2) the beneficiaries of the provisions of this ordinance are the employees of those
employers who reduce or temporarily interrupt the activity totally or partially as a
result of the effects of the SARS-CoV-2 pandemic, during the declared state of
emergency, according to the employer’s affidavit:
I. one of the effects of the decision to temporarily reduce or interrupt the activity
must mandatorily be the suspension of individual employment contracts, as the
reduction of the work schedule is not sufficient;
II. the condition for obtaining the state of emergency certificate for employers
who interrupt their activity totally or partially based on decisions issued by public
authorities has been eliminated;
III. for the other employers, the condition that they register a decrease in the
previous month's cash-ins by a percentage of at least 25% compared to the average
cash-ins from January- February 2020 has been eliminated;
IV. the two initial conditions for obtaining the State unemployment indemnity
have been replaced by simpler ones, namely: (a) the employer must register a
temporary reduction or interruption, total or partial, of the activity due to the epidemic,
(b) in this regard, the employer will submit only an affidavit.
By these new legislative changes, all employers who reduce or temporarily
interrupt the activity, totally or partially, as a result of the effects of the pandemic, can
benefit, during the state of emergency, from the indemnity of 75% of the basic salary
corresponding to the job occupied by the employees, but not more than 75% of the
average gross earnings per country.
(3) the indemnities that the employees benefit from are set at 75% of the basic
salary corresponding to the job held, and will be incurred out of the State budget up to
the limit of 75% of the average gross earnings provided by the Law no. 6/2020 on the
budget allotted to social securities for 2020.
(4) if the employer’s budget, intended to pay staff expenses, allows it, the
technical unemployment indemnity incurred by the State may be supplemented by the
employer with amounts representing the difference of up to minimum 75% of the basic
salary corresponding to the job held, in accordance with the provisions of art. 53 para.
324
(1) of the Labor Code; The amount of the unemployment indemnity has been clarified,
namely the employer can supplement the employee's technical unemployment
indemnity up to 75% of the basic salary for which the employee has been employed,
only if the budget for the payment of staff costs allows it.
(5) if an employee has closed several individual employment contracts of which at
least one full- time contract is active during the state of emergency, he does not benefit
from the technical unemployment indemnity incurred by the State;
(6) if an employee has closed several individual employment contracts and all are
suspended following the establishment of the state of emergency, he benefits from the
technical unemployment indemnity incurred by the State related to the individual
employment contract with the most advantageous salary rights;
(7) the tax provisions applicable to the unemployment indemnity, namely taxes
and contributions:
I. the indemnity is subject to taxation and payment of compulsory social
contributions, according to the Fiscal Code13;
II. no insurance contribution is due for work according to the provisions of art.
2205 of the Fiscal Code;
III. the calculation, withholding and payment of income tax, of the social security
contribution and of the social health security contribution of the State are made by the
employer from the indemnities cashed in out of the unemployment insurance budget
(the indemnity is transferred to the employer at gross value and the employee will
receive the net value);
IV. the statement of the income tax, of the contribution to the social securities and
of the contribution to the social health securities of the State is made by the employer
by submitting the statement provided in art. 147 para. (1) of the Fiscal Code;
V. for the calculation of the income tax, the provisions of art. 78 para. (2) lit. b) of
the Fiscal Code will apply, which provide for the application of the 10% quota on the
calculation basis determined as the difference between the gross income and the
mandatory social contributions related to one month;
VI. the payment deadline and the deadline to declare the aforementioned fiscal
obligations is the 25th, included, of the month following the one when the payment is
made from the unemployment insurance budget;
VII. the period of the state of emergency, for which the employees whose individual
employment contracts are suspended and the employers of these employees do not owe
the insurance contribution for work according to the provisions of art. 220 of the Fiscal
Code, constitutes a contribution period without payment of the contribution in the social
health security system for leaves and social health securities indemnities;
VIII. for the establishment and calculation of the provided social health security
indemnities, the minimum gross basic salary guaranteed for payment will be used, in
force during the state of emergency;
IX. if the contribution period completed during the state of emergency corresponds to
a fraction of a month, the minimum gross basic salary per country guaranteed for payment,
13
Law no. 227/2015 on Fiscal Code, published in the Official Journal of Romania, Part I no. 688 of
September 10, 2015.
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in force during that period, corresponding to the fraction of a month, will be used.
(8) formalities to settle the technical unemployment indemnity:
I. the legal representative of the company that meets the above conditions must
submit a signed and dated application, joined by an affidavit and by the list of persons
that are to benefit from this indemnity, undertaken by the employer's legal representative;
II. the application is submitted by e-mail to the county and Bucharest
employment agencies in whose range the employers have their registered office;
III. employers will take responsibility for the accuracy and authenticity of the data
written in these documents.
It should be mentioned that, by Emergency Ordinance no. 32/2020, in order to
obtain the unemployment indemnity by those who are entitled to it, it is no longer
required to obtain and submit the state of emergency certificate, and there is no longer
any condition to register a decrease in cash-ins from the previous month by a percentage
of at least 25% compared to the average cash- ins from January-February 2020.
(9) the payment method of the unemployment indemnity implies: (a) the
payment of the indemnity will be made to the accounts open by the employers with the
commercial banks;
(b) the documents referred to above for the payment of the indemnity will be
submitted during the current month for the payment of the indemnity of the previous
month; (c) payment of this unemployment indemnity from the unemployment
insurance budget is made no later than 15 days after the submission of the documents
(before the deadline was changed, it was of 30 days), and (d) payment of the indemnity
is made to the employee within a maximum of 3 working days after the employer
receives the relevant amounts;
Therefore, by Emergency Ordinance no. 32/2020, the payment method of the
unemployment indemnity has also been clarified. Thus, the procedure for paying the technical
unemployment was established, in the sense that the employer is not bound to incur, out of his
funds, the payment of the technical unemployment indemnity, but will transfer it to the
employees only after the employer has received the necessary amounts from the State.
Beside the technical unemployment of employees holding an individual
employment contract, in the category of those who can benefit from unemployment
indemnities of 75% of the average gross earnings in the country enter also the following
categories of individuals who do not have the capacity of employees, namely: (a) other
professionals, according to Art. 3 para. (2) of the Civil Code, namely those who operate
an enterprise; (b) persons who have closed individual employment agreements under
Law no. 1/2005 on the organization and operation of cooperation, and which interrupt the
activity as a result of the effects of the SARS-CoV-2 coronavirus, during the state of
emergency; (c) the persons provided in art. 671 para. (1) letters a) - c) of the Law on
physical education and sports no. 69/200014, for the period of temporary suspension of
the sports activity contract, at the initiative of the sports structure; (d) natural persons
who earn income exclusively from copyright and related rights, as regulated by Law no.
14
Law on physical education and sports no. 69/2000, published in the Official Journal of Romania, Part I
no. no. 200 of May 9, 2000.
326
8/199615 on copyright and related rights, which interrupt the activity as a result of the
effects of the SARS-CoV-2 coronavirus, during the state of emergency.
It should be mentioned that even these indemnities granted to persons who do not
have the capacity of employees are subject to taxation and payment of social security
and social health security contributions, as established by the Fiscal Code.
Section 5. Technical unemployment on the background of the provisions

of Government Emergency Ordinance no. 53/2020
On 21.04.2020, the Emergency Ordinance no. 53/2020 for the amendment and
addition of certain normative acts regarding social protection measures determined by
the spread of the SARS-CoV- 2 coronavirus was published in the Official Journal of
Romania, Part I no. 325.
This Ordinance brought a series of additions and amendments to the previous
provisions of Government Emergency Ordinance no. 30/2020, amended and
supplemented by Government Emergency Ordinance no. 32/2020, as follows:
(1) a new category of beneficiaries of this indemnity of 75% from the average
gross salary is introduced, namely lawyers whose activity has been reduced during the
state of emergency;
(2) for the indemnity thus granted to lawyers, the income tax, the social security
contribution and the social health security contribution are due;
(3) the calculation of the fiscal obligations related to the indemnities received by
professionals (freelancers, II, IF, liberal professions), lawyers, persons who obtain
income exclusively from copyrights, will be made by the beneficiary natural persons.
The obligations thus determined will be declared in the single statement regarding the
income tax and the social contributions due by natural persons, and will be paid on the
deadline stipulated by the law;
(4) as regards the beneficiaries who have closed individual employment
agreements based on Law no. 1/200516/athletes, coaches, etc., the withholding is made
by the relevant cooperation/sports structure;
(5) the category of other professionals does not include the companies regulated
by the Companies Law no. 31/199017, nor the groups of economic interest;
(6) persons benefiting from the right to a pension and persons with a degree of
disability may benefit from the technical unemployment indemnity or from one of the
indemnities provided for professionals (freelancers, II, IF, liberal professions), lawyers,
persons earning income exclusively from copyright;
(7) as regards persons who have closed individual employment agreements
based on Law no. 1/2005 regarding the organization and operation of the cooperation,
15
Law no. 8/1996 on copyright and related rights, republished in the Official Journal of Romania Part I
no. 489 of June 14, 2018.
16
Law no. 1/2005 on the organization and functioning of the cooperation, republished in the Official
Journal of
Romania, Part I no. 368 of May 20, 2014.
17
Companies Law no. 31/1990, published in the Official Journal of Romania, Part I no. 1066 of
November 17, 2004.
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the cooperation is the one that deals with obtaining the indemnity. The cooperation will
make the payment to the persons with whom it has closed individual employment
agreements within 3 days after receiving the relevant amounts;
(8) the persons whose period of unemployment ends during the state of emergency
will continue to receive the unemployment indemnity until the state of emergency ceases;
(9) the amounts representing the indemnities received from the State (technical
unemployment, indemnity for professionals, etc.) are not subject to foreclosure by
garnishment, during their granting, regardless of whether or not they are borne by the
State or by the employer. The measure is valid during the state of emergency and for
another 60 days after it ceases.18
Section 6. Technical unemployment on the background

of the provisions of Law no. 59/2020
On 19.05.2020, Law no. 59/2020 on the approval of GEO no. 30/2020 was published
in the Official Journal of Romania, Part I no. 416, for the amendment and addition of
certain normative acts, as well as for the establishment of some measures in the field of
social protection on the background of the epidemiological situation determined by the
spread of the SARS-CoV-2 coronavirus. By the provisions of Law no. 59/2020:
(1) Law no. 19/202019 was amended; therefore, parents can benefit from days off in
order to supervise their children aged up to 12 years old or children with disabilities aged
up to 26 years old, enrolled in an educational unit and for the period immediately following
the cessation of the state of emergency, until the end of the school year (June 12, 2020);
The provisions of Law no. 59/2020 do not apply if one of the parents has a suspended
employment relationship for the temporary interruption of the employer's activity, under the
conditions of art. 52 para. (1) letter c) of Law no. 53/2003 on Labor Code.
At the same time, the provisions of Law no. 59/2020 do not apply even if the other
parent does not make income from salaries and assimilated to salaries, income from
independent activities, income from intellectual property rights, income from agricultural
activities, forestry and fish farming, subject to income tax according to the provisions of the
Law no. 227/2015 on the Fiscal Code, except for the situation when he/she is classified as
severely or pronounced disabled, and is thus exempted from paying income tax;
(2) by exception from the provisions of Government Emergency Ordinance no.
111/201020 on leave and monthly allowance for raising children, approved with
amendments by Law no. 132/2011, the rights provided by Government Emergency
Ordinance no. 111/2010 are granted without interruption, for the entire period of the
state of emergency, as well as for a period of 30 days after it ceases;
(3) to the persons whose contract has been suspended for the temporary
interruption of the employer's activity, based on art. 52, para.1, letter c) of Law no.
18
GEO 53 / 2020 – main amendments | TheExperts.ro
19
Law no. 19/2020 on the granting of days off to parents for the supervision of children in the event of
temporary closure of educational establishments, published in the Official Journal of Romania, Part I
no. 209 of March 14, 2020.
20
Government Emergency Ordinance no. 111/2010 on leave and monthly allowance for raising children,
published in the Official Journal of Romania, Part I no. 830 of December 10, 2010.
328
53/2003 on Labor Code, and who have not complied with the normative provisions in
force regarding quarantine, isolation or self-isolation at home, their right to indemnity
ceases on the date when the competent authority acknowledges the breach of the
obligation of quarantine, isolation or self-isolation at home;
(4) by derogation from the provisions of Law no. 53/2003 on Labor Code and Law
no. 165/201821 on the granting of bank notes, employers may grant meal vouchers to
employees whose employment contracts are suspended pursuant to art. 52 para. (1) letter
c) of Law no. 53/2003, as a result of the state of emergency being instituted. The
targeted employees receive meal vouchers exclusively on electronic support. The value
of meal vouchers on electronic support is transferred monthly to employees by the unit
issuing meal vouchers on electronic support, corresponding to the number of working
days in the month for which the transfer is made, according to the contract closed by
the issuing unit with the employer;
(5) a new article is introduced in the Government Emergency Ordinance no.
30/2020, according to which the provisions of the Emergency Ordinance, including the
normative acts amending and/or supplementing it or containing provisions regarding the
application of its provisions, will continue to apply, without interruption, from the date of
cessation of the state of emergency established by decree, according to art. 93 para. (1) of
the Romanian Constitution, republished, for all fields of activity in which restrictions are
maintained, until their lifting, but not later than December 31, 2020.
Section 7. Technical unemployment on the background of the changes

operated by Government Emergency Ordinance no. 132/202022,
Government Emergency Ordinance no. 211/202023
and other adopted normative acts
the Official Journal of Romania, Part I no. 720, on support measures for employees and
employers in the context of the epidemiological situation caused by the spread of the
SARS-CoV-2 coronavirus, as well as to stimulate employment growth.
Government Emergency Ordinance no. 132/2020 was supplemented and amended
by the enforcement of the provisions of Government Emergency Ordinance no.
21
Law no. 165/2018 on the award of valuable tickets, published in the Official Journal of Romania, Part I
no. 599 of July 13, 2018.
22
Government Emergency Ordinance No. 132/2020 on support measures for employees and employers
in the context of the epidemiological situation caused by the spread of the SARS-CoV-2
coronavirus, as well as for stimulating employment growth, published in the Official Journal of
Romania, Part I no. 720 of August 10, 2020.
23
Government Emergency Ordinance no. 211/2020 on the extension of the application of certain
social protection measures adopted in the context of the spread of the SARS-CoV-2 coronavirus, as
well as for amending Government Emergency Ordinance no. 132/2020 on support measures for
329
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182/202024, Government Emergency Ordinance no. 211/202025, Law no. 282/202026,

as well as of the Government Emergency Ordinance no. 220/202027.
the Official Journal of Romania, Part I no. 993, for the amendment and addition of
Government Emergency Ordinance no. 147/2020 on granting days off for parents to
supervise children, in case of limitation or suspension of teaching activities that involve
the actual presence of children in schools and early childhood education units,
following the spread of SARS-CoV-2 coronavirus , as well as art. 6 of Government
Emergency Ordinance no. 132/2020 on support measures for employees and employers
in the context of the epidemiological situation caused by the spread of the SARS-CoV-
2 coronavirus, as well as to stimulate employment growth.
Thus, in addition to the regulations on granting days off for parents in order to
supervise children, in case of limitation or suspension of teaching activities that involve
the actual presence of children in schools and early childhood education units, by
Government Emergency Ordinance no. 182/2020, amendments were made to art. 6 of
the Government Emergency Ordinance no. 132/2020, a new paragraph (6) will be
inserted after paragraph 5 with the following content: "(6) The amount referred to in
para. (1) will not be granted to employers who have submitted to the general register of
employees the data regarding the elements of the employment relationship, establishing
the development of the activity in telework system, after the expiry of the legal
deadline to register the change.”
the Official Journal of Romania no. 1189, on the extension of the application of some
social protection measures adopted in the context of the spread of the SARS-CoV-2
coronavirus, as well as for the amendment of Government Emergency Ordinance no.
132/2020 on support measures for employees and employers in the context of the
epidemiological situation caused by the spread of the SARS-CoV-2 coronavirus, as
well as to stimulate employment growth.
24
Government Emergency Ordinance No. 182/2020 for the amendment and completion of the
Government Emergency Ordinance No. 147/2020 on the granting of days off for parents to supervise
children in the event of the limitation or suspension of teaching activities involving the effective
presence of children in pre-primary educational establishments and early pre-school education
establishments as a result of the spread of the SARS-CoV-2 coronavirus, as well as to stimulate
employment growth, published in the Official Journal of Romania, Part I no. 993 of October 27, 2020.
25
Government Emergency Ordinance no. 211/2020 on the extension of the application of certain
social protection measures adopted in the context of the spread of the SARS-CoV-2 coronavirus, as
well as for amending Government Emergency Ordinance no. 132/2020 on support measures for
26
Law no. 282/2020 for the approval of Government Emergency Ordinance no. 132/2020 on support
measures for employees and employers in the context of the epidemiological situation caused by
the spread of SARS-CoV-2 coronavirus, as well as to stimulate employment growth, published in the
Official Journal of Romania, Part I no. 1201 of December 9, 2020.
27
Government Emergency Ordinance no. 220/2020 on the application of social protection measures
after January 1, 2021 in the context of the spread of SARS-CoV-2 coronavirus, as well as for the
amendment of certain normative acts, published in the Official Journal of Romania, Part I no. 1326 of
December 31, 2020.
330
By the provisions of Government Emergency Ordinance no. 211/2020, additions

and amendments were made, among which we mention the fact that the measure of
technical unemployment incurred out of the unemployment insurance budget for
employees of companies operating in areas where restrictions still exist, for employees
of companies whose activity is suspended as a result of the epidemiological
investigation carried out by the directorates of public health and other professionals, is
extended until June 30, 2021.28
We indicate at this point the Law no. 282/2020 for the approval of Government
Emergency Ordinance no. 132/2020 on support measures for employees and employers
in the context of the epidemiological situation caused by the spread of SARS-CoV-2
coronavirus, as well as for stimulating employment growth, published in the Official
Journal of Romania, Part I no. 1201 of December 9, 2020, on the approval of
Emergency Ordinance no. 132/2020 with the amendments and additions brought to it.
At the end of 2020, more precisely on 31.12.2020, Government Emergency
Ordinance no. 220/2020 was published in the Official Journal of Romania, Part I no.
1326, on the application of social protection measures after January 1, 2021 in the
context of the spread of SARS-CoV-2 coronavirus, as well as for the amendment of
certain normative acts, which enforced the following legislative provisions relevant to
the topic of this study, namely:
(1) employers who, between January 1- September 1, 2021, employ, for an
indefinite period, full- time, persons over the age of 50 whose employment
relationships have ceased for reasons not blamable on them, during the state of
emergency or alert, persons aged between 16 and 29 registered as unemployed in the
records of the county or Bucharest employment agencies, as well as Romanian citizens,
included in the same age categories, whose employment with foreign employers in the
territory of other states was terminated in 2020, for reasons not blamable on them, by
dismissal, receive monthly, for a period of 12 months, for each employee in this
category, 50% of the employee's salary, but not more than 2,500 lei;
(2) the amounts referred to in the previous paragraph are granted for the payment
of the salary in proportion to the actual time worked by the employee and are not
cumulated, for the same employee, with the subsidies granted to employers who have
closed, with the county or Bucharest employment agencies, contracts or agreements
pursuant to art. 80, art. 85 and art. 934 of Law no. 76/2002 on the unemployment
insurance system and employment stimulation, with the subsequent amendments and
additions. They are also settled out of the unemployment insurance budget, on the
employers’ request, submitted by electronic means to the county or Bucharest
employment agencies in whose range they have their registered office, after the
employer pays the salary rights;
(3) employers who terminate the individual employment contracts of the persons
referred to at point (1) before the indicated deadlines are bound to reimburse in full to
the employment agencies the amounts received for each person for whom the
employment relationship ended before that deadline, plus the reference interest of the
28
Legislative amendments regarding technical unemployment, reduction of the working time and
telework aid - Lexology
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National Bank of Romania, in force on the termination date of the individual

employment contracts, if their termination took place pursuant to art. 55 letter b), art.
56 para. (1) letters d) and e) and art. 65 of Law no. 53/2003 on Labor Code;
(4) the following categories will not benefit from the amounts specified at point
(1): (a) employers of public institutions and authorities, as defined by Law no.
500/2002 on public finances, as well as by Law no. 273/2006 on local public finances
and (b) employers who are in bankruptcy, dissolution, liquidation or whose activities
have been suspended or restricted for reasons other than those caused by the spread of
SARS-CoV-2;
(5) the provisions of art. 4 of Government Emergency Ordinance no. 132/2020, as
approved by Law no. 282/2020, will be amended, and will have the following content:
“for persons carrying out unqualified activities on an occasional basis, according to the
provisions of Law no. 52/2011 on the exercise of occasional activities carried out by
day laborers, hereinafter referred to as day laborers, who carry out their activity in one
of the fields provided in art. 13 of Law no. 52/2011, affected by the interruption or
restriction of activity as a result of the effects of SARS-CoV-2, for a period of 3
months, at the choice of the beneficiary of works, but not later than June 30, 2021, an
amount representing 35% of the remuneration due for one working day is granted from
the State budget. "
Also, art. 5 para. (1) will have the following content: “Until June 30, 2021, but not
more than 3 months, at the choice of the employer, for employees who close individual
employment contracts for a determined period of up to 3 months, the settlement of a
part of the salary granted to them will be granted, incurred out of the unemployment
insurance budget, representing 41.5% of the salary related to the days worked at these
working places, for a working period of 8 hours/day, but not more than 41.5% from the
average gross earning provided by the Law no. 6/2020on the budget allotted to State
social securities for 2020, related to the worked period”.
On this background, the provisions of Law no. 58/202129 for the approval of
Government Emergency Ordinance no. 211/2020 regarding the extension of the
application of certain social protection measures adopted in the context of the spread of
the SARS-CoV-2 coronavirus, as well as for the amendment of Government Emergency
Ordinance no. 132/2020 on support measures for employees and employers in the context
of the epidemiological situation caused by the spread of the SARS-CoV-2 coronavirus, as
well as for stimulating employment growth, among which we mention:
(1) by derogation from the provisions of art. 112 para. (1) of Law no. 53/2003 on
the Labor Code, republished, with subsequent amendments and additions, in case of
temporary reduction of working time, determined by the establishment of the state of
emergency/alert/siege, in accordance with the law, during the state of
emergency/alert/siege, such as and for a period of up to 3 months from the end of the
last period in which the state of emergency/alert/siege was established, employers have
the possibility to reduce the working time of employees by no more than 80% of the
daily, weekly or monthly duration provided in the individual employment contract;
29
op. cit., published in Official Journal of Romania, Part I no. 345 of April 5, 2021.
332
(2) during the reduction of working time under the conditions set out above, the
employees affected by the measure receive an indemnity of 75% of the gross monthly
basic salary related to the hours of reduction of the working schedule;
(3) the indemnity of 75% of the gross monthly basic salary related to the hours of
reduction of the working schedule is incurred by the employer, from the chapter related
to the personnel expenses from his income and expenditure budget, and is paid on the
date of payment of the monthly salary, and it is to be settled within 5 days after the
issuance of the decision provided in art. 11 para. (4), out of the unemployment
insurance budget, after the employer fulfills the declaratory and payment obligations
related to the incomes from salaries and assimilated to the salaries from the period for
which the request is made, in accordance with the provisions of Law no. 227/2015 on
Fiscal Code;
(4) the indemnity of 75% of the monthly gross basic salary related to the hours of
reduction of the working hours represents income of a salary nature and is subject to
taxation and payment of social contributions, in accordance with the law. For the
calculation of the income tax, the rules provided in art. 78 para. (2) letter a) of Law no.
227/2015 will apply. If, during the same month, the employee obtains both income
from salaries and the indemnity of 75% of the gross monthly basic salary related to the
hours of reduction of the working hours for taxation, they are cumulated in order to
grant a personal deduction. The monthly tax is determined according to the provisions
of art. 78 para. (2) letter a) of Law no. 227/2015;
(5) in case of temporary reduction of working time, determined by the establishment
of the state of emergency/alert/siege, in accordance with the law, during the state of
emergency/alert / siege, as well as for a period of up to 3 months after the cessation of the
last period when the state of emergency/alert/siege was instituted, it is forbidden both to
hire staff to perform activities identical or similar to those performed by employees whose
working time has been reduced, and to subcontract the activities carried out by employees
whose working time has been reduced. The interdiction refers to the level of subsidiary,
branch or other secondary offices defined by the Companies Law no. 31/1990.
On 06.04.2021, Law no. 59/2021 on the approval of Government Emergency
Ordinance no. 182/2020 for supplementing Government Emergency Ordinance no.
147/2020 was published in the Official Journal of Romania, Part I no. 352, on granting
days off for parents to supervise children, in case of limitation or suspension of
teaching activities that involve the actual presence of children in schools and early
childhood education units, following the spread of SARS-CoV-2 coronavirus, as well
as art. 6 of Government Emergency Ordinance no. 132/2020 on support measures for
employees and employers in the context of the epidemiological situation caused by the
spread of the SARS-CoV-2 coronavirus, as well as to stimulate employment growth.
It was used to approve the Government Emergency Ordinance no. 182 of October
22, 2020 supplementing Government Emergency Ordinance no. 147/2020 on granting
days off for parents to supervise children, in case of limitation or suspension of
teaching activities that involve the actual presence of children in schools and early
childhood education units, following the spread of SARS-CoV-2 coronavirus, as well
as art. 6 of the Government Emergency Ordinance no. 132/2020 on support measures
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the spread of SARS-CoV-2 coronavirus, as well as to stimulate employment growth,
published in the Official Journal of Romania, Part I no. 993 of October 27, 2020, with
the additions and amendments provided by Law no. 59/2021.
Conclusions
On March 11, 2020, the World Health Organization declared the COVID-19
epidemic as pandemic.
A pandemic is an epidemic that spreads over a very large territory, covering one
country, several countries or continents. The epidemic is the spreading of a contagious
disease in a short time, through contamination, to a large number of people in a
locality, region, etc.
When an epidemic spreads over a very large area, covering in a relatively short
time the entire population of a country, of several countries or even of entire
continents, it is called a pandemic.
The SARS-COV-2 pandemic generated multiple changes, about which we can say
that some of them were welcome, but it also caused numerous losses of human lives, as
well as difficult living conditions for the majority of the population due to changes at
social, economic, fiscal, political, legal, cultural, educational, health, religious and
tourism level.
In Romania, on March 16, 2020, by the Decree of the President of Romania no.
195/2020, the state of emergency was instituted on the territory of Romania for a
period of 30 days, and it was subsequently extended by the Decree of the President of
Romania no. 240/2020, and later, from May 15, 2020 until present time, Romania has
been declared in a state of alert.
During a year and a half of the SARS-Cov-2 pandemic, a series of measures were
adopted, materialized through a mixture of normative acts in areas such as economic,
fiscal, health, labor and social protection, judicial, etc., in order to prevent the spread of
the virus, to limit its effects and to support those affected.
One of the challenges generated in Romanian law by the SARS-CoV-2 pandemic
is the regulation of technical unemployment, through this study limiting ourselves to
presenting certain aspects concerning this matter, in light of the numerous normative
acts that have been adopted.
Bibliography:
1. Companies Law no. 31/1990, published in the Official Journal of Romania no. 1066 of
November 17, 2004;
2. Decree no. 195 of March 16, 2020 on the establishment of the state of emergency on the
territory of Romania, published in the Official Journal of Romania, Part I no. 212 of
March 16, 2020;
3. Decree no. 240 of 14 of 14 April 2020 on the extension of the state of emergency on the
territory of Romania, published in the Official Journal of Romania, Part I no. 311 of
334
April 14, 2020;

4. Government Decision no. 394 of 18 May 2020 on the declaration of the state of alert and
the measures applied during it to prevent and combat the effects of the COVID-19
pandemic, published in the Official Journal of Romania, Part I no. 410 of May 18, 2020;
5. Government Emergency Ordinance no. 111/2010 on leave and monthly allowance for
raising children, published in the Official Journal of Romania, Part I no. 830 of
December 10, 2010;
6. Government Emergency Ordinance No. 132/2020 on support measures for employees
and employers in the context of the epidemiological situation caused by the spread of the
SARS- CoV-2 coronavirus, as well as for stimulating employment growth, published in
the Official Journal of Romania, Part I no. 720 of August 10, 2020;
7. Government Emergency Ordinance No. 182/2020 for the amendment and completion of
the Government Emergency Ordinance No. 147/2020 on the granting of days off for
parents to supervise children in the event of the limitation or suspension of teaching
activities involving the effective presence of children in pre-primary educational
establishments and early pre- school education establishments as a result of the spread of
the SARS-CoV-2 coronavirus, as well as to stimulate employment growth, published in
the Official Journal of Romania, Part I no. 993 of October 27, 2020;
8. Government Emergency Ordinance no. 30/2020 for amending and supplementing certain
normative acts, as well as for establishing measures in the field of social protection in the
context of the epidemiological situation determined by the spread of SARS-CoV-2
coronavirus, published in the Official Journal of Romania, Part I no. 231 of March 21,
2020;
9. Government Emergency Ordinance no. 32/2020 on amending and supplementing
Government Emergency Ordinance no. 30/2020 for amending and supplementing certain
normative acts, as well as for establishing measures in the field of social protection in the
context of the epidemiological situation determined by the spread of SARS-CoV-2
coronavirus and for establishing additional social protection measures, published in the
Official Journal of Romania no. 260 of March 30, 2020;
10. Government Emergency Ordinance no. 53/2020 for the amendment and addition to
certain normative acts regarding social protection measures determined by the spread
of the SARS- CoV-2 coronavirus, published in the Official Journal of Romania, Part I
no. 325 of April 21, 2020;
11. Government Emergency Ordinance no. 220/2020 on the application of social
protection measures after January 1, 2021 in the context of the spread of SARS-CoV-2
coronavirus, as well as for the amendment of certain normative acts, published in the
Official Journal of Romania, Part I no. 1326 of December 31, 2020;
12. Government Emergency Ordinance no. 211/2020 on the extension of the application of
certain social protection measures adopted in the context of the spread of the SARS-
CoV-2 coronavirus, as well as for amending Government Emergency Ordinance no.
132/2020 on support measures for employees and employers in the context of the
epidemiological situation caused by the spread of SARS-CoV-2 coronavirus, as well as
to stimulate employment growth, published in the Official Journal of Romania, Part I
no. 1189 of December 7, 2020;
13. Law no. 8/1996 on copyright and related rights, republished in the Official Journal of
Romania no. 489 of June 14, 2018;
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14. Law on physical education and sports no. 69/2000, published in the Official Journal of
Romania, Part I no. no. 200 of May 9, 2000;
15. Law no. 53/2003 on Labor Code, republished in the Official Journal, Part I no. 345 of
May 18, 2011;
16. Law no. 1/2005 on the organization and functioning of the cooperation, republished in
the Official Journal of Romania, Part I no. 368 of May 20, 2014;
17. Law no. 287/2009 on the Civil Code, republished in the Official Journal, Part I no. 505
of July 15, 2011;
18. Law no. 227/2015 on Fiscal Code, published in the Official Journal of Romania, Part I
no. 688 of September 10, 2015;
19. Law no. 165/2018 on the award of valuable tickets, published in the Official Journal of
Romania, Part I no. 599 of July 13, 2018;
20. Law no. 19/2020 on the granting of days off to parents for the supervision of children
in the event of temporary closure of educational establishments, published in the
Official Journal of Romania, Part I no. 209 of March 14, 2020;
21. Law no. 59/2020 on the approval of Government Emergency Ordinance no. 30/2020
for amending and supplementing certain normative acts, as well as for establishing
measures in the field of social protection in the context of the epidemiological situation
determined by the spread of SARS-CoV-2 coronavirus, published in the Official
Journal of Romania, Part I no. 416 of 19 May 2020;
22. Law no. 282/2020 for the approval of Government Emergency Ordinance no. 132/2020
on support measures for employees and employers in the context of the
epidemiological situation caused by the spread of SARS-CoV-2 coronavirus, as well as
to stimulate employment growth, published in the Official Journal of Romania, Part I
no. 1201 of December 9, 2020;
23. Law no. 58/2021 for the approval of Government Emergency Ordinance no. 211/2020
regarding the extension of the application of certain social protection measures adopted
in the context of the spread of the SARS-CoV-2 coronavirus, as well as for the
amendment of Government Emergency Ordinance no. 132/2020 on support measures
the spread of SARS-CoV- 2 coronavirus, as well as to stimulate employment growth,
published in the Official Journal of Romania, Part I no. 345 of April 5, 2021;
24. Law no. 59/2021 on the approval of Government Emergency Ordinance no. 182/2020
for supplementing Government Emergency Ordinance no. 147/2020 on granting days
off for parents to supervise children, in case of limitation or suspension of teaching
activities that involve the actual presence of children in schools and early childhood
education units, following the spread of SARS-CoV-2 coronavirus, as well as art. 6 of
Government Emergency Ordinance no. 132/2020 on support measures for employees
and employers in the context of the epidemiological situation caused by the spread of
SARS-CoV-2 coronavirus, as well as to stimulate employment growth, published in
the Official Journal of Romania no. 352 of April 6, 2021;
25. The Romanian Constitution, published in the Official Journal of Romania, Part I no.
767 of October 31, 2003;
336
Online sources:
1. GEO 53/2020 - main amendments TheExperts.ro;
2. Legislative changes on technical unemployment, reduction of working time and aid for
telework - Lexology;
3. GEO no. 30/2020 for amending and supplementing certain normative acts, as well as for
establishing measures in the field of social protection in the context of the
epidemiological situation determined by the spread of the SARS-CoV-2 coronavirus -
approved (Law no. 59/2020) | Universul Juridic.
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STATUS OF THE CURRENT EFFORTS

TO FOSTER BUSINESS RESPECT FOR HUMAN RIGHTS
Christian TÖPFER*
Abstract: After being adopted by the UN Human Rights Council with its resolution 17/4 of
16 June 2011, the United Nations Guiding Principles on Business and Human Rights (UNGP),
developed by Prof. John Ruggie, emerged as the first international standard for preventing and
addressing the potentially adverse impacts that business activity may have on the human rights
of individuals. Being endorsed or employed by individual Governments, business enterprises
and associations, civil society and workers’ organizations, national human rights institutions,
and investors, the UNGP has become the internationally accepted framework for enhancing the
standards and practice used to foster business respect for human rights. The efforts to move the
UNGP from paper to practice have currently evolved in three main directions, the status of
these being summarized in this paper.
Keywords: Business, Human Rights, Guiding Principles, status.
Introduction
The drive to foster business respect for human rights started from two premises.
Firstly, there is the positioning of human rights as a “common ideal” to which peoples
and nations, all structures of society and all individuals must aspire, as the United Nations
General Assembly proclaimed by the Universal Declaration of Human Rights on 10
December 1948. In order to reach this common ideal, it is necessary to progress towards the
development of respect for the rights and freedoms that the fundamental document enshrines,
through education and learning, and progressive measures on national and international level
to ensure their universal and effective recognition and application, in other words, a common,
lasting, ever-renewing effort of States, of all institutions and individuals1.
Secondly, there is the realization that, nowadays more than ever, the large
corporations exercise an economic and social influence that rivals that of the states in
which they operate. As a consequence, the responsibilities of the States are considered to
no longer be limited to positive or negative obligations in their relations with the citizens
(as traditionally expected from them regarding human rights), but they have to include
efforts for protecting human rights in relationships between private individuals2.
Acting on these findings, the Human Rights Council endorsed the Guiding
Principles on Business and Human Rights (UNGP) in its resolution 17/4 of 16 June
* PhD. student, National University of Political Studies and Public Administration (SNSPA), Bucharest
(Romania), christian@topfer.ro.
1
Moroianu Zlătescu, I., Human Rights: An Evolving System, Romanian Institute for Human Rights,
2
Fodor, E-M., “Human Rights and Business in a Globalised World”, Fiat Iustitia, 1/2019, Cluj-Napoca,
pp. 110, 122.
338
2011, after seeing them developed by Prof. John Ruggie3 as Special Representative of
the Secretary-General on the issue of human rights and transnational corporations and
other business enterprises. These Guiding Principles emerged as the main and first
internationally accepted framework for enhancing standards and practice regarding
business and human rights, being endorsed or employed by governments, business
enterprises and associations, civil society and workers’ organizations, national human
rights institutions, and investors.
Even as the United Nations Guiding Principles on Business and Human Rights
have enjoyed support from both the public and private sectors, there still remain gaps
and challenges to be overcome in order to move the UNGP from paper to practice.
The current efforts of governments and the European Union are focused on three
directions, namely (1) laying down National Action Plans to guide their efforts to
protect human rights from business related adverse impacts, (2) imposing legislation on
mandatory human rights due diligence and on (3) lowering barriers for access to
effective remedy to victims of human rights abuses.
1. The concept and the spreading of National Action Plans

on Business and Human Rights
1.1. Concept
The idea of National Action Plans on Business and Human Rights stems from the
United Nations Guiding Principles on Business and Human Rights, which propose that,
in order to foster business respect for human rights, the States should consider a “smart
mix of measures – national and international, mandatory and voluntary”4.
Concrete requirements for the implementation of the UNGP through National
Action Plans (NAPs) are detailed in the Guidance on National Action Plans on
Business and Human Rights, developed by the UN Working Group on Business and
Human Rights5, which provides recommendations on the development, implementation
and update of National Action Plans (NAPs) on Business and Human Rights, and
where a National Action Plan on Business and Human Rights is defined as an
“evolving policy strategy developed by a State to protect against adverse human rights
impacts by business enterprises in conformity with the UN Guiding Principles on
Business and Human Rights (UNGPs)”.
Regarding its contents, every National Action Plan is required (1) to identify the
existing laws and policies which are relevant to business and human rights, (2) to
recognize shortcomings and gaps in the existing regulatory framework, and (3) to state
3
United Nations Human Rights Council, Report of the Special Representative of the Secretary-General
on the issue of human rights and transnational corporations and other business enterprises, John
Ruggie, 21 March 2011.
4
United Nations, Guiding Principles on Business and Human Rights, HR/PUB/11/04, New York and
Geneva, 2011, Commentary on Guiding Principle 3.
5
UN Working Group on Business and Human Rights, Guidance on National Action Plans on Business and
Human Rights, available at: https://www.ohchr.org/Documents/Issues/Business/UNWG_NAPGuidance.pdf
(accessed: 24 April 2021).
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the concrete commitments by the government to address the identified shortcomings

and to close regulatory gaps it identified.
1.2. Worldwide Spreading

Acting on the idea of guiding the efforts to foster business respect for human
rights through National Action Plans on Business and Human Rights, the following
states have until now taken steps in that direction6:
a. States that adopted National Action Plans on business and human rights (24):
- 2013: UK, Netherlands;
- 2014: Denmark, Finland;
- 2015: Lithuania, Sweden, Norway, Colombia;
- 2016: Switzerland, Italy, USA, Germany;
- 2017: France, Poland, Spain, Belgium, Chile, Czech Republic, Ireland;
- 2018: Slovenia;
- 2019: Kenya, Thailand;
- 2020: Luxembourg, Japan.
b. States that adopted Human Rights National Action Plans which includes
chapter on business and human rights (3):
- Georgia (2018);
- South Korea (2018);
- Mexico (2018).
c. States that are in the process of developing a National Action Plan (26):
- Argentina
- Australia
- Azerbaijan
- Brazil
- Ecuador
- Guatemala
- Greece
- Honduras
- India
- Indonesia
- Jordan
- Latvia
- Malaysia
- Mauritius
- Mexico
- Mongolia
- Morocco
- Mozambique
- Myanmar
6
United Nations, Office of the High Commissioner on Human Rights, State national action plans on Business
and Human Rights, available at: https://www.ohchr.org/en/issues/business/pages/nationalactionplans.aspx
(accessed: 24 April 2021).
340
- Nicaragua
- Pakistan
- Peru
- Portugal
- Uganda
- Ukraine
- Zambia
d. States that have begun steps in the development of a National Action Plan (6):
- Ghana;
- Kazakhstan;
- Nigeria;
- South Africa;
- Tanzania;
- Philippines.
The European Union has been a strong supporter of the implementation of the
Guiding Principles, having published its strategy for corporate social responsibility7 in
2011, calling on its member states to develop National Action Plans on Business and
Human Rights and announcing an EU Action Plan on Responsible Business Conduct.
Following up on this strategy, the European Commission published a staff working
document in March 2019, which gives an overview of the Commission's and the
European External Action Service's (EEAS) progress regarding business and human
rights and implementing corporate social responsibility and responsible business conduct.
Romania is found between the few EU member states still lacking a National Action
Plan on Business and Human Rights, while even the National Strategy for Sustainable
Development of Romania 2030, adopted by the Government’s Decision (HG) 877/2018,
does not contain any commitments regarding Business and Human Rights.
1.3. Conclusions on National Action Plans

Putting the status information in numerical perspective, we can conclude that of
the currently 193 UN member states, less than 14% have adopted National Action
Plans on Business and Human Rights, while other about 17% of the UN members are
found in the process of developing their own National Action Plans. That means that
more than 2/3 of the world’s countries have not moved past the first phase of officially
identifying its relevant laws regarding business and human rights, nor have they
recognized existing shortcomings and gaps of that regulatory framework, the less have
they stated any concrete commitments to foster business respect for human rights.
Furthermore, it is found that National Action Plans have various shortcomings8,
both formal and qualitative. Regarding the elaboration process, “ongoing NAP
processes in some Member States are neither participatory nor transparent, with
7
European Commission, Corporate social responsibility & Responsible business conduct, available at:
https://ec.europa.eu/growth/industry/sustainability/corporate-social-responsibility (accessed: 24 April 2021).
8
European Network of National Human Rights Institutions, Recommendations for the Next EU Strategy On
CSR, April 2015, available at: https://media.business-humanrights.org/media/documents/files/documents/
EU_CSR_Communication_ENNHRI_Final_Apr_2015_2.pdf (accessed: 24.04.2021).
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stakeholders involved weakly or not at all, and civil society organisations in particular
frequently lacking even basic information or opportunities to engage in dialogue with
government representatives”. Regarding the content, “published NAPs to date mostly
describe historical actions, and lack specific commitments capable of demonstrably
improving UNGP implementation at the national level”.
More important, most National Action Plans are found to lack commitments to
improve access to remedies and to remove legal and practical barriers encountered by
victims of business-related human rights abuses seeking redress (“access to effective
remedies for victims of business-related human rights abuses is of crucial importance
and should be addressed in National Action Plans. […] further progress on this third
pillar of the Guiding Principles is necessary”9).
2. The concept of Human Rights Due Diligence and the newest regulations
2.1. Concept
The Guiding Principles are also the source of the concept of Human Rights Due
Diligence, by stating that “In order to meet their responsibility to respect human rights,
business enterprises should have in place policies and processes appropriate to their size and
circumstances, including: (b) A human rights due diligence process to identify, prevent,
mitigate and account for how they address their impacts on human rights”10, and that “In
order to identify, prevent, mitigate and account for how they address their adverse human
rights impacts, business enterprises should carry out human rights due diligence. The process
should include assessing actual and potential human rights impacts, integrating and acting
upon the findings, tracking responses, and communicating how impacts are addressed”11.
According to the UN Working Group on Human Rights12, enterprises are expected
by the UNGP to identify and assess risks by geographic context, sector and business
relationships throughout their own activities (comprising both the HQ, and its
subsidiaries) as well as that of its value chain. The main purpose of human rights due
diligence has to be the prevention of adverse impacts on people, by keeping its focus
on the risks to people, not the risks to business. It is expected to be ongoing, as the
risks to human rights may change over time; and to be informed, by also relying on
meaningful stakeholder engagement, in particular with affected stakeholders, human
rights defenders, trade unions and grassroots organizations, while risks to human rights
defenders and other critical voices should also be considered.
9
Council of the European Union, Council Conclusions on Business and Human Rights, 10254/16,
available at: https://ec.europa.eu/anti-trafficking/sites/default/files/council_conclusions_on_
business_and_human_rights_foreign_affairs_council.pdf (accessed: 24.04.2021).
10
Geneva, 2011, Guiding Principle 15.
11
12
United Nations, Office of the High Commissioner on Human Rights, Summary of the report of the
Working Group on Business and Human Rights to the General Assembly, October 2018 (A/73/163),
New York and Geneva, 2018.
342
The concrete requirements of Human Rights Due Diligence, as stated in the

UNGP, are that it is expected to:
a. evaluate the impact: “Should cover adverse human rights impacts that the
business enterprise may cause or contribute to through its own activities, or which may
be directly linked to its operations, products or services by its business relationships;”
b. adapt to the concrete circumstances: “Will vary in complexity with the size of
the business enterprise, the risk of severe human rights impacts, and the nature and
context of its operations;”
c. be ongoing: “Should be ongoing, recognizing that the human rights risks may
change over time as the business enterprise’s operations and operating context evolve.”
2.2. Newest legislation

In recent years, the discussions on fostering business respect for human rights
shifted towards the need for mandatory due diligence legislation.
In order to become mandatory, the legal duty would need to be accompanied by
some consequence for a failure to meet the standard, which, in turn, provides an
opportunity for enforcement through civil remedies for those affected.
The first step in that direction was the EU Non-Financial Reporting Directive
(Directive 2014/95/EU), which provides that “Large undertakings which are public-
interest entities exceeding on their balance sheet dates the criterion of the average
number of 500 employees during the financial year shall include in the management
report a non-financial statement containing information to the extent necessary for an
understanding of the undertaking's development, performance, position and impact of
its activity, relating to, as a minimum, environmental, social and employee matters,
respect for human rights, anti-corruption and bribery matters”.
This directive is also transposed, at national level in Romania, by the Order of the
Finance Minister no. 1938/2016.
Obviously, such unilateral reporting by large business enterprises is not sufficient
to meet the expectations and requirements of the UNGP, mainly because (1) the
reporting does not require substantive Human Rights Due Diligence to be undertaken,
while the company may simply state that there are no risks because either there was no
reporting on any issues stemming from its activity, or because of lacking internal
processes to determine or identify the possible risks, and (2) reporting requirements
allow the companies to only report on the steps they have taken and do not require
them to provide details on any actual human rights abuses they have identified
Most importantly, though, is that any lack of legal consequence for the failure of a
company to actually do a Human Rights Due Diligence, to the extent prescribed by the
UNGP, does very little to foster business respect for human rights, the reporting
requirements seeming, as such, to be very ineffective in that regard.
Starting from these conclusions, individual states already moved to adopt mandatory
Human Rights Due Diligence legislation, the frontrunners being the UK (Modern Slavery
Act, 2015), France (“Devoir de Vigilance” – “Duty of Vigilance Law”, 2016), Australia
(Modern Slavery Bill, 2018) and the Netherlands (“Wet Zorgplicht Kinderarbeid” –
Child Labor Due Diligence Law, 2019), while the civil society presses for similar
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legislation in other countries, such as Germany (50 companies called for the draft of the
“Lieferkettengesetz” – Law on Supply Chains – to be strengthened in Parliament13, in
order to bring about tangible improvements for people and planet along global value
chains and ensure the law is more in line with UN and OECD standards) and
Switzerland, increasing pressure on the European Commission to introduce EU-wide
mandatory human rights due diligence legislation.
As a consequence, the European Commissioner for Justice, Didier Reynders,
announced, on 29 April 2020, that the Commission commits to introducing rules for
mandatory corporate environmental and human rights due diligence, as part of a
Sustainable Corporate Governance initiative14.
2.3. Conclusions on Human Rights Due Diligence

The currently existing legislation is considered to be insufficient to encourage
business enterprises legal to actually do a Human Rights Due Diligence to the extent
prescribed by the UNGP. The nonfinancial reporting directive of the EU, as the UNGP
itself, is lacking any consequence for the failure of a company in assessing its actual
and potential human rights impacts, integrating and acting upon the findings, tracking
responses, and communicating how impacts are addressed.
That shows that there are further steps necessary to move the United Nations
Guiding Principles on Business and Human Rights from paper to practice regarding the
responsibilities of businesses to identify, prevent, mitigate and account for how they
address their adverse human rights impacts.
The legislation of the frontrunner states which already moved to adopt mandatory
Human Rights Due Diligence legislation is expected to open the door for more to come
and new regulations are also expected on EU level.
3. Identifying barriers for access to effective remedy
3.1. Concept
Ensuring access to effective remedy is a part of the State duty to protect against
business-related human rights abuse, as the Guiding Principles clarify15, constituting
the third pillar of the UNGP.
Also, there is need for specific legislative strategies, to be adopted not only by the
States parties of the treaties, and for optimization of the control mechanisms and
13
Business and Human Rights Resource Centre, 50 companies call for German draft due diligence law
to be strengthened in Parliament, available at: https://www.business-humanrights.org/en/latest-
news/statement-sorgfaltspflichtengesetz/ (accessed: 24.04.2021).
14
Business and Human Rights Resource Centre, EU Commissioner for Justice commits to legislation
on mandatory due diligence for companies, available at: https://www.business-
humanrights.org/en/latest-news/eu-commissioner-for-justice-commits-to-legislation-on-mandatory-
due-diligence-for-companies/ (accessed at: 24.04.2021).
15
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procedures; also, there’s need for the support of professionals in the police and the
administration of justice in general so that such behavior codes be promoted that
cultivate respect for human dignity, equality, and non-discrimination16.
Consequently, discussions on government action need to address the full spectrum
of measures from prevention to remediation.
3.2. Barriers for access

The European Union Agency for Fundamental Rights (FRA), in its Opinion on
“Improving access to remedy in the area of business and human rights at the EU level”17,
identified “possible avenues to lower barriers for access to remedy at the EU level” and
described a number of steps that could be taken regarding legal aid, burden of proof,
matters of private international law, non-judicial mechanisms and criminal justice.
The conclusions and recommendations of the Fundamental Rights Agency for the
European Union and its Member States asked them to provide for effective collective
redress in business and human rights cases and include it in the standards for non-
judicial mechanisms regarding business and human rights, as well as in the National
Action Plans of the EU Member States.
In the follow-up report18 published by the European Union Agency for
Fundamental Rights (FRA) on 5 October 2020, it analyzes the realities that victims
face when seeking compensation for human rights violations due to business activity.
The report presents the findings of field research on the views of professionals on the
various ways in which people can make complaints and concludes that (1) victims face
various systemic or procedural obstacles, which may include cases arising from
serious violations of the right to life, health or dignity to low-value cases affecting
individual consumers, and that (2) in most cases there is an evident inequality of arms
and power imbalance between opponents. This imbalance of power, derived either
from financial and legal resources or from political influence, manifests itself in
various stages of relevant incidents and procedures, and reaches from intimidation of
victims and their defenders, through access to evidence and experts, to non-compliance
with final agreements.
The most important conclusion of this report is that existing remedies often do not
take this imbalance of power into account and that procedural rules are not adapted to
the nature of the cases and the reality of corporate structures. Moreover, in cases where
the remedy becomes more accessible, it often lacks the effectiveness and ability to
provide a meaningful remedy for victims.
16
Moroianu Zlătescu, I, Protection Against Racism and Discrimination, Romanian Institute for Human
Rights, Bucharest, 2011, p. 72.
17
European Union Agency for Fundamental Rights, Improving access to remedy in the area of business
and human rights at the EU level. Opinion of the European Union Agency for Fundamental Rights,
FRA Opinion 1/2017, 10 April 2017 (FRA Opinion 1/2017), available at:
https://fra.europa.eu/sites/default/files/fra_uploads/fra-2017-opinion-01-2017-business-human-
rights_en.pdf (accessed: 24.04.2021).
18
European Union Agency for Fundamental Rights. Business-related human rights abuse reported in the
EU and available remedies (2019), available at: https://fra.europa.eu/sites/default/files/fra_uploads/fra-
2019-business-and-human-rights-focus_en.pdf (accessed: 24.04.2021), p. 5.
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3.3. Conclusions on access to effective remedy

These practical and legal barriers to access to remedy, which exist even in the
European environment, make it essential to find ways of lowering these barriers by
alleviating the burden on individual claimants and facilitating redress of their grievances.
This is expected to be achieved by new legislation which is currently being drafted
by the European Union and its Member States, while the rest of the world shall hopefully
follow the European example, in order to foster business respect for human rights.
Conclusions
Since the adoption of the UNGP in 2011, there still remain gaps and challenges to
be overcome in order to move the Guiding Principles from paper to practice.
It is found that, although numerous countries are discussing, creating or have
already adopted National Action Plans on business and human rights, as well as
policies or laws to incentivize, pressure or mandate business respect for human rights,
there are still unsatisfactory levels of business performance and disclosure which call
into question the effectiveness of efforts and measures taken to date19.
As the currently existing legislation is found to be insufficient to encourage
business enterprises legal to actually do a Human Rights Due Diligence to the extent
prescribed by the UNGP, there are further steps necessary regarding the responsibilities
of businesses to identify, prevent, mitigate and account for how they address their
adverse human rights impacts.
Finally, it is expected that new legislation will arrive to lower or remove the
practical and legal barriers which limit access to remedy, as they have been identified,
so as to further foster business respect for human rights and move our global society to
a more sustainable future.
Bibliography:
1. Moroianu Zlătescu, I., Human Rights: An Evolving System, Romanian Institute for
Human Rights, Bucharest, 2007.
2. Moroianu Zlătescu, I, Protection Against Racism and Discrimination, Romanian
Institute for Human Rights, Bucharest, 2011.
3. Fodor, E-M., “Human Rights and Business in a Globalised World”, Fiat Iustitia, 1/2019,
Cluj-Napoca.
4. Fiedler, D., Insider Perspective: The United Nations Forum on Business and Human
Rights 2019, available at: https://www.wbcsd.org/Overview/News-Insights/Insider-
perspective/The-United-Nations-Forum-on-Business-and-Human-Rights-2019
(accessed: 24.04.2021).
19
Fiedler, D., Insider Perspective: The United Nations Forum on Business and Human Rights 2019,
available at: https://www.wbcsd.org/Overview/News-Insights/Insider-perspective/The-United-Nations-
Forum-on-Business-and-Human-Rights-2019 (accessed: 24.04.2021).
346
5. Business and Human Rights Resource Centre, EU Commissioner for Justice commits to
legislation on mandatory due diligence for companies, available at:
https://www.business-humanrights.org/en/latest-news/eu-commissioner-for-justice-
commits-to-legislation-on-mandatory-due-diligence-for-companies/ (accessed at:
24.04.2021).
6. Business and Human Rights Resource Centre, 50 companies call for German draft due
diligence law to be strengthened in Parliament, available at: https://www.business-
humanrights.org/en/latest-news/statement-sorgfaltspflichtengesetz/ (accessed: 24.04.2021).
7. European Union Agency for Fundamental Rights, Improving access to remedy in the
area of business and human rights at the EU level. Opinion of the European Union
Agency for Fundamental Rights, FRA Opinion 1/2017, 10 April 2017 (FRA Opinion
1/2017), available at: https://fra.europa.eu/sites/default/files/fra_uploads/fra-2017-
opinion-01-2017-business-human-rights_en.pdf (accessed: 24.04.2021).
8. European Union Agency for Fundamental Rights. Business-related human rights abuse
reported in the EU and available remedies (2019), available at:
https://fra.europa.eu/sites/default/files/fra_uploads/fra-2019-business-and-human-rights-
focus_en.pdf (accessed: 24.04.2021).
9. United Nations Human Rights Council, Report of the Special Representative of the
Secretary-General on the issue of human rights and transnational corporations and
other business enterprises, John Ruggie, 21 March 2011.
10. United Nations, Guiding Principles on Business and Human Rights, HR/PUB/11/04,
New York and Geneva, 2011.
11. United Nations, Office of the High Commissioner on Human Rights, State national action
plans on Business and Human Rights, available at: https://www.ohchr.org/en/issues/business/
pages/nationalactionplans.aspx (accessed: 24.04.2021).
12. UN Working Group on Business and Human Rights, Guidance on National Action Plans
on Business and Human Rights, available at: https://www.ohchr.org/Documents/Issues/
Business/UNWG_NAPGuidance.pdf (accessed: 24.04.2021).
13. European Commission, Corporate social responsibility & Responsible business
conduct, available at:
https://ec.europa.eu/growth/industry/sustainability/corporate-social-responsibility
(accessed: 24.04.2021).
14. United Nations, Office of the High Commissioner on Human Rights, Summary of the
report of the Working Group on Business and Human Rights to the General Assembly,
October 2018 (A/73/163), New York and Geneva, 2018.
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Conference Paper
GENDER EQUALITY IN THE CONTEXT OF THE 2030

AGENDA AND COVID-19 PANDEMIC
Ruxandra-Andreea ŢUŢUIANU*
Abstract: The main goal of this paper is to address the urgent need for countries across
the world to ensure coherent, coordinated and comprehensive policies and programmes, in
implementing the 2030 Agenda, in order to achieve gender equality. The paper provides an
independent analysis of the steps taken towards implementing the Sustainable Development
Goals (SDGS). At the heart of this research lies the gender equality concept and its
breakthroughs and downfalls until today, including during the global COVID-19 pandemic. The
issue of achieving gender equality worldwide has been one of the most important and
controversial subject on the global agenda, considering that the UN Secretary-General urged
governments in 2020 to put women and girls at the center of their recovery efforts, raising
awareness about the intensified danger women across the world are facing nowadays,
particularly domestic violence. Although some progress has been made, there are still several
persistent areas of concern in the fight against long-standing inequalities in multiple areas of
women’s lives, such as: violence against women and girls, promoting equal pay for work of
equal value, the gender digital divide, women’s under-representation in politics and peace
building. There is no better time to stress the importance of radical, positive action to be put in
place by the countries across the globe, at all levels, in order to redress the long-standing
inequalities in women’s lives. The COVID-19 pandemic should be seen as an opportunity for
progress, as well as a wake-up call for the challenges we are still facing in the area of gender
equality. The time to react is now.
Keywords: Gender equality, 2030 Agenda, sustainable development, COVID-19
Introduction
A successful sustainable development agenda requires strong international

cooperation, as well as strong global partnerships. The Millennium Declaration in 2000
was a critical milestone in the field of international cooperation, raising awareness
amongst billions of people regarding the need to improve their lives through joint
development strategies, policies and programmes, which require both national and
international support.
The 8 anti-poverty MDGs (Millennium Development Goals), which the world
committed to back in 2000, were seen as gathering unprecedented efforts in order to
meet the collective goals in the fight against poverty all over the world. Although
enormous progress has been made until the target date, it has proven to be uneven. As a
critical response to the emerging threat of old and new challenges that further the slow
progress in some areas, more than 150 world leaders came together at the United
Nations Sustainable Development Summit (25th of November 2015) and adopted the
* PhD. student, National University of Political Studies and Public Administration (SNSPA), Bucharest.
348
new 2030 Agenda for Sustainable Development, including the 17 new Sustainable
Development Goals (SDGs), built on the 8 MDGs, focused on anti-poverty targets,
while adding universal issues to be tackled, such as climate change, innovation,
sustainable consumption and the importance of peace and justice for all.
The United Nations (UN) 2030 Agenda represents an integrated approach to
sustainable development. The document contains three dimensions – economic, social
and environmental –, which must be balanced while reinforcing the interconnections
between all goals and targets.
The Sustainable Development Goals (SDGs) imply a significant challenge in
terms of ensuring credibility, considering the crisis through which Europe is currently
going through. Taking responsibility in a planetary context is crucial and that needs be
reflected both in the EU s internal as well as external policy frameworks. The 2030
Agenda is considered to be a major priority for the EU, which has been involved in
many negotiations for a global development framework and has acknowledged the
importance of implementing such a long-term approach to issues which are relevant
across all levels (regional, local, and national) and for many actors in EU institutions
and Member States. Moreover, the SDGs automatically need to be linked to the Europe
2020 Strategy for growth and jobs, as well as the EU Sustainable Development
Strategy (2001), in order to ensure the embedding of the SDGs into the policies and
strategies of the EU.
1. The Millennium Development Goals (MDGs)
The sustainable development goals (SDGs) expand on the 8 millennium

development goals (MDGs), which were part of the 2000 Millennium Declaration and
agreed upon as targets for realizing fundamental values considered to be essential to
international relations and for the work of the UN. Adopted based on several lessons
learned from past approaches to development cooperation, the MDGs identified 8
goals, 21 targets and 60 specific indicators, designed to strengthen the efforts of leaders
around the world in eradicating extreme poverty.
The ambitious MDG were the following: eradicate extreme poverty and hunger;
achieve universal primary education; promote gender equality and empower women;
reduce child mortality; improve maternal health; combat HIV/AIDS, malaria and other
diseases; ensure environmental sustainability; develop a global partnership for
development.
1.1. Results achieved by the Millennium Declaration and MDGs

The Millennium Declaration and its millennium development goals were
groundbreaking for all countries, regardless of their level of development, considering
that they represented a world commitment to realize the goals by the 2015 deadline.
Due to inequalities and uneven progress between regions, not all of these goals have
been achieved, but nonetheless, it is important to acknowledge that relevant progress
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has been made in the process of improving people s lives across the world and their
future prospects.
A successful example of the achievements of the MDGs to eradicate extreme
poverty, we need to consider that the target of halving the proportion of people who
suffer from extreme poverty has been achieved by dropping from approximately 36%
of the world population suffering from these issues in 1990, to approximately 12% in
2015. Although significant progress has been achieved in this matter, progress to
reduce hunger in Sub-Saharan Africa, South and West Asia has been slow, showing
that there is still unevenness across regions and this should be improved upon in the
future. Another positive example of the implementation of the MDGs would be in the
field of infectious diseases, with a significant drop of HIV infections between 2000-
2014, by approximately 35%, as well as saving over 6.2 million lives from all over the
world from malaria or 37 million lives saved from tuberculosis during the period 2000-
2013.1 Also, the total number of out-of-school people was reduced almost by 50%,
while the proportion of the population without access to safe drinking water was
halved. These are all amazing achievements for the world population.
1.2. Remaining challenges

The Millennium Development Goals Report 20152 is dedicated to the most
successful anti-poverty movement known until the target date of the Millennium
Declaration. The framework of the document, the 8 Millennium Development Goals
were perceived as the most courageous initiative of world leaders to fight against crucial
challenges across the world, bringing together global efforts on the way to improve
people s lives, their future and our planet s future altogether. The report takes knowledge
of the significant achievements which have been made until the target date of 2015, by
analyzing each goal of the declaration and the unprecedented efforts which brought many
positive results. However, the document also emphasizes on the many aspects which are
still in desperate need for progress, considering that there has been uneven development
in fields such as gender equality, income and regional disparities, climate change and
environmental degradation, the gaps between the poorest and richest, inequalities,
poverty, hunger or access to basic services. It is important to understand that vulnerable
people, poor people, the ones which are being disadvantaged because of several reasons
such as sex, age, ethnicity, geographic location and other, need not be left behind and
there is still need for enormous concentrated efforts in order to continue this long-term
process of improving the life of people around the world.
The Millennium Declaration and the MDGs are considered to be a valuable
experience, considering we are talking about a 15-year effort to achieve the
groundbreaking and bold goals set out in the document. Ensuring a sustainable future,
respecting human rights and needs, protecting the environment and ensuring peace needs
to become a reality. That can only be done by capitalizing results, learning from what has
been done in the past and working together for new and more ambitious agenda.
1
White Paper on Development Cooperation, page 7, available at https://www.mofa.go.jp/files/000175889.pdf
2
The Millenium Development Goals Report 2015, United Nations, New York, 2015, available at
https://www.un.org/millenniumgoals/2015_MDG_Report/pdf/MDG%202015%20rev%20(July%201).pdf
350
2. From MDGs to SDGs
Following the 2010 High-level Plenary Meeting of the General Assembly on the
MDGs, a resolution was adopted, stating some very important issues. While
acknowledging the relevant progress that had been made in implementing the goals set
in the past through the Millennium Declaration in 2000, the Heads of State and
Government gathered at UN Headquarters in New York in 2010, expressed deep
concern about making the MDGs a reality across the world, due to multiple and
interrelated crises, such as the financial and economic crisis. The document reiterates
their determination for global partnership for development in the following years,
focusing mostly on the countries which are least developed and calls for increased
cooperation and an enhanced global partnership for development.3 Through this
resolution document, the Secretary-General has been requested to report annually on
the implementation of the MDGs until 2015 and to deliver recommendations for the
future steps in the process of the development agenda beyond 2015.
Later on, in the year 2012, the UN Conference on Sustainable Development,
known as Rio+20, took place in Rio de Janeiro, Brazil, where Member States adopted a
political outcome document, entitled The future we want4, especially made for
renewing the commitment to sustainable development and a sustainable future,
economically, socially and environmentally, for the present generations and those
ahead, through stating practical measures for implementing sustainable development
and the millennium development goals. Nevertheless, during the Rio Conference, the
Member States took the decision to set up a working group to design a set of
sustainable development goals (SDGs), capitalizing on the Millennium Development
Goals and meeting the prior request in 2010, to converge with the post 2015
development agenda.
The Rio+20 Conference was not intended to elaborate the SDGs but to create the
Open Working Group, as previously mentioned, which was set up on the 22nd of
January 2013 by decision 67/555 (see A/67/L48/rev.1) of the General Assembly.5 The
target of this Open Working Group was to come up with a proposal regarding a limited
number of SDGs, all of which should address all three dimensions of sustainable
development (economic growth, social inclusion and environmental sustainability),
involving all relevant stakeholders and civil society, scientific community and the
United Nation systems, in order to achieve the integration of the SDGs into the
development agenda beyond 2015. The two phases of the Open Working Group were
the following: first, collecting information and views from Member States,
stakeholders and experts and secondly, drafting a proposal for the SDGs for the 68th
session of the General Assembly mandated by the UN Conference on Sustainable
3
Resolution adopted by the General Assembly on 13 September 2010, A/64/L.72,
https://digitallibrary.un.org/record/689616?ln=en
4
Outcome document, Future We Want, available at
https://sustainabledevelopment.un.org/index.php?menu=1298
5
Open Working Group on Sustainable Development Goals, https://sustainabledevelopment.un.org/owg.html
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Development. This set of ambitious goals were supposed to reinforce and build upon
existing international commitments in the economic, social and environmental fields6.
2.1. United Nations Sustainable Development Summit 2015

The Millennium Development Goals have proven that addressing the three
elements of sustainable development: economic growth, social inclusion and
environmental sustainability, is a reality closer to us than we have believed prior to
these groundbreaking targets. The MDGs represented a success story and inspired the
Open Working Group in creating a new set of ambitious sustainable development
goals, during a long process that took 3 years long. The process was completely
transparent, involving all relevant stakeholders, the civil society, business actors,
parliamentarians, youth and other voices from all sectors, in order to create common
goals and targets to be achieved post 2015.
The Summit welcomed interactive dialogues on several critical matters, such as:
ending poverty and hunger tackling inequalities, empowering women and girls and
leaving no one behind fostering sustainable economic growth, transformation and
promoting sustainable consumption and production delivering on a revitalized global
partnership building effective, accountable and inclusive institutions to achieve
sustainable development and protecting our planet and combatting climate change7.
World leaders gathered together for the Sustainable Development Summit at UN
Headquarters in New York, on 25 September 2015, bearing in mind a universal desire:
the adoption of the document entitled: Transforming Our World: The 2030 Agenda for
Sustainable Development. This moment was considered historical, “a roadmap to
ending global poverty, building a life of dignity for all and leaving no one behind. It is
also a clarion call to work in partnership and intensify efforts to share prosperity,
empower people’s livelihoods, ensure peace and heal our planet for the benefit of this
and future generations”8, as stated by United Nations Secretary-General.
2.2. The Sustainable Development Goals (SDGs)

During the Sustainable Development Summit, a set of 17 Sustainable
Development Goals (SDGs), were adopted by 193 countries, goals which were
designed to improve people s lives across the world, by 2030, in all three dimensions
(economic, social and environmental). These SDGs are also known as the 2030
Agenda, which focuses on the most important challenges the world is facing every day:
poverty, inequalities, health, energy, climate change, peace and security. The main goal
6
Progress report of the Open Working Group of the General Assembly on Sustainable Development
Goals, https://sustainabledevelopment.un.org/content/documents/3238summaryallowg.pdf
7
Summit Charts New Era of Sustainable Development, UN Sustainable Development Summit 2015, 25-
27 September, https://www.un.org/sustainabledevelopment/blog/2015/09/summit-charts-new-era-of-
sustainable-development-world-leaders-to-gavel-universal-agenda-to-transform-our-world-for-people-
and-planet/
8
Ban Ki-moon, United Nations Secretary General, https://www.un.org/sustainabledevelopment/blog/
2015/09/summit-charts-new-era-of-sustainable-development-world-leaders-to-gavel-universal-
agenda-to-transform-our-world-for-people-and-planet/
352
is to reach these 17 SDGs by the year 2030, the global efforts put into this process
being monitored each year with the help of 244 indicators, 169 sub-targets9 and
annually reports from governments about the measures taken for the implementation of
the SDGs in their own countries, as well as countries where they work. The main focus
is put on the importance of bringing together all relevant actors, from governments to
civil society and researchers, in order to overcome global challenges and achieve
ambitious interconnected issues and leave no-one behind, as the past taught us this
important principle.
Building upon the positive results of the implementation of the MDGs, the 2030
Agenda is even more dedicated to people who struggle with conflict and persecution,
poverty, inequalities due to disabilities, race, sex, age and more, disadvantaged children,
women who experience violence, all of these people being the heart of the historical
agenda, especially created to improve their lives and their future generation s destiny. As
stated in a three-minute video10, leave no one behind is a promise that every person has a
fair opportunity in life no matter who or where they are. Reach the furthest behind first.
Every person counts and will be counted. Going further than the MDGs, the 2030
Agenda brings to the table aspects about human rights and economic development,
tackling the roots of poverty and inequalities, all of which were the result of a series of
thematic and national consultations, surveys and Member States negotiations.
The 17 proposed goals are the following:
Goal 1 – End poverty in all its forms everywhere.
Goal 2 – End hunger, achieve food security and improved nutrition and promote
sustainable agriculture.
Goal 3 – Ensure healthy lives and promote well-being for all at all ages.
Goal 4 – Ensure inclusive and equitable quality education and promote lifelong
learning opportunities for all.
Goal 5 – Achieve gender equality and empower all women and girls.
Goal 6 – Ensure availability and sustainable management of water and sanitation
for all.
Goal 7 – Ensure access for affordable, reliable, sustainable and modern energy for all.
Goal 8 – Promote sustained, inclusive and sustainable economic growth, full and
productive employment and decent work for all.
Goal 9 – Build resilient infrastructure, promote inclusive and sustainable
industrialization and foster innovation.
Goal 10 – Reduce inequality within and among countries.
Goal 11 – Make cities and human settlements inclusive, safe, resilient and sustainable.
Goal 12 – Ensure sustainable consumption and production patterns.
Goal 13 – Take urgent action to combat climate change and its impact.
Goal 14 – Conserve and sustainably use the oceans, seas and marine resources for
sustainable development.
9
FOCUS 2030 and the Sustainable Development goals: at the heart of our work, 25 November 2019,
NEWS, https://focus2030.org/Focus-2030-and-the-Sustainable-Development-Goals-at-the-heart-of-
our-work
10
Leave no one behind: The Sustainable Development Goals in 3 minutes, https://focus2030.org/Leave-
No-One-Behind-the-Sustainable-development-goals-in-3-minutes-Video
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Goal 15 – Protect, restore and promote sustainable use of terrestrial ecosystems,

sustainably manage forests, combat desertification, and halt and reverse land
degradation and halt biodiversity loss.
Goal 16 – Promote peaceful and inclusive societies for sustainable development,
provide access and justice for all and build effective, accountable and inclusive
institutions at all levels.
Goal 17 – Strengthen the means of implementation and revitalize the global
partnership for sustainable development.
3. Goal 5 – Achieve gender equality and empower all women and girls
Equality between women and men is seen as a human rights issue. In order to
understand how to address this SDG and achieve gender equality, we need to be fully
aware of concepts such as gender, gender equity and gender equality. The term gender
differs from sex, as it is more related to the economic, social and cultural attributes and
characteristics which are associated with males and females, considering that there are
slightly different expectations from men and women, in general, whether we are talking
about work, behavior and the relations between a man and a woman. The goal is to be
able to make this difference between male and female, as a gender, and analyze how
we can change something in people s perspectives in order to make society more just
and equitable. This being said, gender equity should be seen as ensuring fairness
through measures and strategies which allow women to be on the same level as men,
which also leads to gender equality but is different from the perception that men and
women are the same. The actual meaning of gender equality is more related to having
the same opportunities, resources and rewards, regardless of being a male or a female,
which implies redressing power imbalances and empowering women so that we can
design population and development programmes addressed equally to both genders and
reduce inequalities between them.
Gender equality is critical for the realization of human rights for all and it implies
changes for both men and women in order to be achieved. It is important to
acknowledge that over time, universally, women have been disadvantaged in several
areas of their lives, such as access to resources, opportunities, decision-making
processes, the division of labor, access to services and information, career, lifestyle and
choices. The reality is that women have been marginalized over a long period of time,
while men have been favored and benefited from many advantages, therefore, it is time
to address both discrimination and the imbalances in society, so that men and women
can enjoy the same rights, responsibilities and opportunities, regardless of their gender.
All of the above are reasons for which gender equality is one of the 17 sustainable
development goals of the 2030 Agenda and it is considered not only a fundamental
human right, but a necessary foundation for a peaceful, prosperous and sustainable
world11 by the UN. While acknowledging the progress that has been made in the past
11
https://www.un.org/sustainabledevelopment/gender-equality/
354
and laws which are being modified to promote and advance gender equality, there are
still many challenges that need our attention, globally.
3.1. The Beijing Platform for Action

When discussing gender equality and the remaining challenges, we need to take a
moment and remember one of the most inspiring World Conference on Women, that
took place in September 1995 in Beijing and which resulted in the adoption of the
Beijing Declaration and Platform for Action, the most progressive blueprint ever for
advancing women s rights12. The document resulted after two weeks of political
debate, gathering 17.000 participants and 30.000 activist from around the world, who
discussed 12 critical areas of concern: women and the environment, women in power
and decision-making, the girl child, women and the economy, women and poverty,
violence against women, human rights of women, education and training of women,
institutional mechanism for the advancement of women, women and health, women
and the media and women and armed conflict.
Since that moment, of worldwide visibility and amazing commitment from
governments and civil society, many improvements have been made for women s lives
across the globe. Some of the most important gains we can present are the following:
more than 270 legal and regulatory reforms in support of gender equality, the
attendance in education for girls has been considerably higher than in the past
(although there are still many gaps across and within countries), maternal mortality has
dropped (still, the global maternal mortality ratio is high). The remaining challenges
are the representation of women in politics (1 in 4 seats are held by women in national
parliaments), extreme poverty for women, unpaid care and domestic work for women,
labor force participation, and gender parity in the workplace, access to finance and
struggles for youth in education, employment and training13.
3.2. The effects of COVID-19 pandemic in regards to achieving gender equality

The year 2020 has been one tough year all across the globe. All aspects of life
were proven to be extremely affected, whether we are talking about economy, security,
health or social protection. Also, the year 2020 marks the 25th anniversary of the
Beijing Platform for Action, which was previously mentioned and it was supposed to
remind us of all the positive achievement in gender equality but instead, the COVID-19
pandemic affected this as well, by exposing many challenges and vulnerabilities
regarding this sustainable development goal we are eager to achieve in the following
years. Women s lives are changing while facing this global pandemic and
implementing this goal is facing serious risks.
Some of the harshest consequences of the COVID-19 pandemic in the lives of
girls and women are related to the fact that women represent 70% of the health and
12
https://beijing20.unwomen.org/en/about
13
https://www.unwomen.org/-/media/headquarters/attachments/sections/library/publications/2020/gender-
equality-womens-rights-in-review-key-facts-and-figures-en.pdf?la=en&vs=935
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social sector workforce14, which shows that this category is the most exposed to
discrimination due to their work and aspects such as their reproductive health and
psychosocial needs should be taken into consideration especially during this difficult
time. Also, given the fact that there is a higher percentage of women in poverty than
men, the women facing these problems or persons with disabilities should be given a
special attention when it comes to how they are affected by the disease. Nonetheless, it
is important to stress the fact that many women around the world have been facing
difficulties with intimate and domestic violence, considering that there have been
numerous measures related to limited movement and lockdown, causing violence
against women to increase globally. Moreover, during this time, it is important to pay
attention to women s sexual reproductive health and right, safe pregnancies and
childbirth issues and mental health and psychosocial support for the most affected.
3.3. Post-pandemic recommendations in gender equality field

Taking into consideration the many challenges we are being faced with in the
matter of gender equality, particularly shown during the last pandemic year, it is time
for all relevant actors, from governments to international organizations to civil society
to acknowledge the fact that a response to the consequences of the health crisis
regarding women and girls, should be at the center of their concern.
All countries are responding to the COVID-19 pandemic in their own different way,
in all of the affected areas, including gender equality. There are a series of
recommendations which apply to all of the interventions and policies should take into
consideration, such as: ensure that high attention is given to supportive care, to sexual
and reproductive health and right during the pandemic, ensure that there are no
discriminatory practices and inequalities in the response given to COVID-19, support the
engagement of women in their communities, in the decision-making process regarding
the recovery from the pandemic, prevent and ensure safety for women and girls dealing
with any sort of violence or ensure that governments and health institutions across the
world make a thorough analysis on how much more women are affected during this time,
in terms of how their physical, security and sanitary needs are being met.
3.4. Positive examples from around the world

China, for example, has launched a special hashtag
#AntiDomesticViolenceDuringEpidemic, which has been of great success, leading to
the exposure of violence as a risk during lockdown. Canada has kept its domestic
violence shelters open during the lockdown, while France has come up with alternative
accommodation for domestic violence, since the shelters have exceeded capacity
during the last year. Also, all around the world, innovative solutions such as turning
mobile technology services into means of reporting about domestic violence or giving
online support to survivors of these situations, have been appreciated. This kind of
14
COVID-19: A Gender Lens, Protecting Sexual and Reproductive Health and Rights, and Promoting
Gender Equality, Technical Brief, UNFPA, March 2020, https://www.unfpa.org/sites/default/files/resource-
pdf/COVID-19_A_Gender_Lens_Guidance_Note.pdf
356
measure was implemented by Spain or the UK, who even involved the civil society to
look for any sign of abuse.
3.5. UN Women s response to COVID-19 crisis

The year 2020 was a real wake up call for people all around the world who are
trying to promote gender equality, eliminate discrimination based on being a male or a
female and who are dedicated to empower women and girls, wherever they are. UN
Women is also involved in addressing violence against women and girls and has been
working together with its partners to support civil society organizations (women s
organizations first) funded by the UN Trust Fund to provide them with immediate
assistance during the challenging pandemic and also launch a call for proposals to fund
new projects dedicated to supporting women and girls, survivors of violence, as a
consequence to the COVID-19 pandemic. Also, the UN Safe City and Safe Public
Initiative has been involved in ensuring safe public spaces for women and girls during
the pandemic, by working closely with governments and women s organizations in all
sectors. UN has developed a global programme proposal, entitled Gender responsive
prevention and management of the COVID-19 pandemic: From emergency response to
recovery and resilience, which is meant to support over three million people across 20
countries15.
UN Women s response to COVID-19 focuses on five priorities, which apply
globally16:
1. Gender-based violence, including domestic violence, is mitigated and reduced;
2. Social protection and economic stimulus packages serve women and girls;
3. People support and practice equal sharing of care work;
4. Women and girls lead and participate in COVID-19 response planning;
5. Data and coordination mechanism include gender perspectives.
Conclusions
The COVID-19 pandemic should be seen as an opportunity for progress, as well

as a wake-up call for the challenges we are still facing in the area of gender equality.
During difficult times, inequalities seem to be more present in our daily lives, the
social and economic impacts, consequences to facing such a global crisis, should
remind us that vulnerability is not the key for progress. Instead, we should capitalize
and build upon the progress which has been made until the present moment. Women
and girls should be included in COVID-19 response plan, their organizations being
able to make a difference in transforming the socio-economic strategies into ways of
15
Gender-Responsive Prevention and Management of the COVID-19 pandemic: From Emergency
Response to Recovery and Resilience, UN Women, March 27 2020, https://www.unwomen.org/-
/media/headquarters/attachments/sections/news%20and%20events/in%20focus/covid-19/gender-
responsive-prevention-management-covid19.pdf?la=en&vs=1519
16
https://www.unwomen.org/en/news/in-focus/in-focus-gender-equality-in-covid-19-response/un-
women-response-to-covid-19-crisis
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achieving the sustainable development goal of creating a more inclusive society

through gender equality and focusing on the empowerment of women across the globe.
Fulfilling this ambition is a long-term commitment which requires unprecedented
effort by all sectors in society.
As Antonio Guterres, the Secretary-General of the United Nations said, everything
we do during and after this crisis (COVID-19) must be with a strong focus on building
more equal, inclusive and sustainable economies and societies that are more resilient in
the face of pandemics, climate change, and the many other global challenges we face17.
Bibliography:
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2. The Millennium Development Goals Report 2015, United Nations, New York, 2015,
https://www.un.org/millenniumgoals/2015_MDG_Report/pdf/MDG%202015%20rev%2
0(July%201).pdf
3. Cecilia Gregersen, James Mackie and Carmen Torres, Implementation of the 2030
Agenda in the European Union: Constructing an EU approach to Policy Coherence for
Sustainable Development, July 2016, Discussion Paper No. 197, European Centre for
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July-2016.pdf
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un.org/rio20
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un.org/owg.html
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2015, 25-27 September, https://www.un.org/sustainabledevelopment/blog/2015/09/ summit-
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transform-our-world-for-people-and-planet/
10. Ban Ki-moon, United Nations Secretary General, https://www.un.org/sustainabledevelopment/
blog/2015/09/summit-charts-new-era-of-sustainable-development-world-leaders-to-gavel-
universal-agenda-to-transform-our-world-for-people-and-planet/
11. FOCUS 2030 and the Sustainable Development goals: at the heart of our work, 25
November 2019, NEWS, https://focus2030.org/Focus-2030-and-the-Sustainable-
Development-Goals-at-the-heart-of-our-work
12. UNFPA, Frequently asked questions about gender equality, 2005,
https://www.unfpa.org/resources/frequently-asked-questions-about-gender-equality
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The Sustainable Development Goals Report 2020, UN, https://unstats.un.org/sdgs/report/2020/The-
Sustainable-Development-Goals-Report-2020.pdf
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13. What does gender equality mean? https://www.humanrightscareers.com/issues/what-

does-gender-equality-mean/
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15. https://beijing20.unwomen.org/en/about
16. https://www.unwomen.org/-/media/headquarters/attachments/sections/library/publications/
2020/gender-equality-womens-rights-in-review-key-facts-and-figures-en.pdf?la=en&vs=935
17. COVID-19: A Gender Lens, Protecting Sexual and Reproductive Health and Rights,
and Promoting Gender Equality, Technical Brief, UNFPA, March 2020,
https://www.unfpa.org/sites/default/files/resource-pdf/COVID-
19_A_Gender_Lens_Guidance_Note.pdf
18. COVID-19 and Ending Violence against Women and Girls, UN Women, Media
Headquarters, https://www.unwomen.org/-/media/headquarters/attachments/sections/library/
publications/2020/issue-brief-covid-19-and-ending-violence-against-women-and-girls-
en.pdf?la=en&vs=5006
19. https://www.unwomen.org/en/news/in-focus/in-focus-gender-equality-in-covid-19-
response/un-women-response-to-covid-19-crisis
20. Gender-Responsive Prevention and Management of the COVID-19 pandemic: From
Emergency Response to Recovery and Resilience, UN Women, March 27 2020,
https://www.unwomen.org/-
/media/headquarters/attachments/sections/news%20and%20events/in%20focus/covid-
19/gender-responsive-prevention-management-covid19.pdf?la=en&vs=1519
21. The Sustainable Development Goals Report 2020, UN, https://unstats.un.org/sdgs/report/
2020/The-Sustainable-Development-Goals-Report-2020.pdf
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Conference Paper
SOCIAL INNOVATION - EDUCATIONAL POLICIES

AND STRATEGIES. CHALLENGES OF PUBLIC
ADMINISTRATIONS IN THE CURRENT CONTEXT
Gabriela ŞERBU*
Abstract: The disruptive effects of the Covid-19 pandemic on public services, especially on
the education system, led the European public administration to adopt a series of innovative
measures, applicable through policies and strategies aimed at reducing them. This was possible
both through a consultation at the level of the European institution and through a consultation
at the level of each state, between the central authority and the subordinate structures.
Keywords: social innovation, public policy, educational strategy.
Introduction
The concept of social innovation in the public domain can be linked to three
considerations. First, innovation is often considered a normative concept and is
perceived as “something good” that prevents decision makers and experts from
developing a more critical approach to understanding the substance of social
innovation (Osborne and Brown, 2011). Second, “gray literature” seems to
predominate, consisting of various consultative reports, applied research notes, and
norms (Mulgan, 2009; Howaldt and Schwarz, 2010). Thirdly, the nuance of the
concept is linked to its political significance, as proponents of social innovation link
social innovation to addressing several types of societal challenges. This is why social
innovation is often seen as one of the opportunities offered by the "politically feasible
policy window", which is open, in particular, to all potential social needs.
1. Social innovation as a political "window"
This political window is based on the fusion of four different developments that
contemporary Western governments face and that influence their capacity for
governance.
First, the magic of the concept of social innovation is based on the idea that
modern governments face a number of social challenges that require new approaches,
considering traditional concepts of government and political approaches outdated.
These challenges are often framed in terms of being "bad problems". Typical of "bad
problems" is that there is no clear understanding of what the relevant causes and effects
are, nor what approaches are needed to solve these problems. The expected and
* Ministerial adviser, Ministry of Education (Romania); PhD student, National School of Political and
Administrative Studies, gabriela.serbu12@gmail.com.
360
unintended effects of possible interventions and the associated risks are also unknown
or disputed. Moreover, there are no clear evaluation criteria, as relevant stakeholders
tend to challenge what political values need to be taken into account, as well as how
they need to be balanced. This limits the ability to prioritize actions that need to be
considered and implemented.
For example, how to cope with emerging new education requirements, ensuring
adequate education spaces that appear in the flow of a declining birth rate, while
recognizing that we have limited financial resources. Given this ambiguity and
uncertainty, more experimental approaches, based on trial and error, as well as social
learning are arrived at. Social innovation is often used as a banner to give meaning to
these experiments.
Secondly, it is about the approach that refers to changing the role of the government
in dealing with these "bad problems". Especially because of the financial and budgetary
crises, in many European countries we are witnessing a "withdrawal" of the government.
As a result of all kinds of austerity measures, governments have begun to withdraw from
the provision of public services. Examples of withdrawal include the closure of public
libraries, reduced spending on health and education. Social innovation is often used as a
way to legitimize this withdrawal caused by austerity, generating the need to explore
approaches that can replace the services previously provided by the government.
Thirdly, the "withdrawal" of the government creates an institutional gap that needs
to be filled, given that there are still social needs that need to be addressed. Therefore,
social innovation can also be considered an invitation to develop new forms of public
policy that go beyond the dominant role of government (Newman & Clarke, 2009).
New forms of collaboration are created which are often based on a strong involvement
of citizens, social groups or even new forms of (social) entrepreneurship. Ideas about
Big Society, unlike Big Government, try to relate to these new forms of public policy,
thus emphasizing the importance of cooperation, the importance of charities and other
collective arrangements that citizens can use to organize themselves in order to solve
their specific needs.
Fourth, social innovation is also linked to a broader discussion in society and
politics about the effectiveness and legitimacy of government services when we take
into account the needs of citizens: Are these needs really addressed in an appropriate
way? How does this influence the effectiveness and legitimacy of the government? This
discussion indicates the possibility of developing alternatives that offer citizens and
social groups the opportunity to express their views in new ways. Therefore, social
innovation also affects the way in which citizens are offered the opportunity to
participate in the development of services that influence their lives.
2. Social innovation - the public authority's response

to the challenges posed by the current context
The process of social innovation is triggered mainly during periods of crisis

(economic, social) at local or national level, which puts the deciding factor, in this case
the public administration (local or central), in the situation of identifying solutions with
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character innovative, solutions that, in order to be put into practice, are supported by
firm public policies, and whose applicability becomes firm by adopting normative acts
(laws, emergency ordinances, government decisions, ministerial orders).
It is found that the interaction between the social innovation process and the
policies and strategies for its implementation becomes a two-way process whose
success depends equally on the quality of the proposed innovative solution and the
firmness, clarity and simplicity of public policy that supports it.
This fact has been highlighted especially in all areas, since the appearance of the
pandemic generated by the Covid-19 virus, which put a lot of pressure on the public
administration in each European state to find solutions to keep the device as close to
normal as possible public in each field: education, health, social services, etc.
Based on these premises, in the following we have tried to present the relevant
innovative measures, measures strongly supported by appropriate educational policies,
implemented in education by EU Member States, in response to the disruptive effects
of the Covid-19 pandemic.
The emergence of the Covid-19 virus has had a strong social impact on the entire
European and global community, challenging states to find an innovative solution to
adapt to the situation, so as to minimize the effects. The education system as a whole,
with the pre-university and university subsystems, was seriously disrupted considering
that the specificity of the activity is given by the interaction between pupils / students
and teachers, as well as between pupils / students and between teachers.
Based on these aspects, each state in the European Union has adopted a series of
measures implemented by applying educational policies with a strong social character,
educational strategies adapted to the cultural context and traditions of each state. Thus,
at the Council of the Presidency of the European Union organized on June 29, 2020,
each Member State presented the main measures taken to complete the pre-university
and academic year 2019-2020, respectively the action plan for the start of the 2020-
2021 school year. Each proposed measure was supported by legislative changes as well
as specific strategies and procedures for their effective implementation. Given the
complexity of the teaching process related to the risks of infection due to the Covid-19
pandemic, each action and action plan is a truly innovative measure of a social nature.
2.1. Security measures envisaged for the 2020-2021 School /

university year, in the context of the pandemic
The disruptive impact of the pandemic on the education system in all European
countries put the administration of each of them in front of a common need, which
created the need for consultation and identification of solutions to be applied
differently, depending on the characteristics of each system. the country. Following an
analysis carried out throughout the Community system, the safety measures considered
relevant are set out below.
Belgium: 4 possible scenarios for the organization of the new school year were
analyzed; depending on the situation, risk codes have been established, by colors:
green - fully open schools; yellow - students go to school 4 days a week; orange -
362
students go to school 2 days a week, the courses being completed with distance
learning; red: distance learning.
Croatia: On 10 June 2020, the relevant ministry presented the action plan on the
implementation of distance learning, which contains different scenarios for the next
school and university year, depending on the epidemiological situation and other
criteria such as available strategies, infrastructure and educational support, in order to
allow prompt reactions and to ensure the continuity of the educational process.
Denmark: The relevant ministry has set up multiple dialogue forums where the
main challenges are discussed. A political agreement has been reached to allocate DKK
210 million for an additional 5,000 study places to higher education institutions in
2020 and 2021, in order to accommodate an expected increase in applicants due to the
current situation. Of these, 4,500 are for technology and other programs that contribute
to economic growth and 500 for welfare education programs.
France: The line ministry, in collaboration with higher education institutions, has
developed a plan to resume activities in a mixed way (distance and face-to-face
teaching and learning) for the next academic year. Digital will play a central role, being
adapted to the type of learning adopted. In order to carry out these actions in good
conditions, the relevant ministry has considered further amendments to the specific
legislation.
Romania: The measures for carrying out the activities in the educational units /
institutions were adopted in the context of the alert state (in force until June 18, 2020).
Any subsequent measures were taken into account taking into account the evolution of
the epidemiological context. In order to carry out these actions in good conditions, the
relevant ministry has considered further amendments to the specific legislation.
Slovenia: A more detailed analysis of distance learning during the epidemic was
published at the end of June 2020 by the National Institute of Education. Main topics:
implementation of distance learning, pedagogical guidance, perception of distance
learning. The research will identify the predominant views and practices of distance
learning of teachers at education levels. The research results will underpin the further
development of distance / blended learning. In order to carry out these actions in good
conditions, the relevant ministry is considering new amendments to the legislation.
Spain: For the next school year, the line ministry and regional governments have
set up a working group to address the organization of schools adapted to the pandemic,
curriculum, ensuring the necessary facilities and strengthening digital competence, as
well as monitoring and supporting distance learning. National and regional authorities
agreed on 14 key points for the next school year, including the timetable; During the
first semester of the following academic year, a new “Education Digital” program will
be launched to equip schools with devices and connectivity, especially for the most
vulnerable students. These devices, approximately 500,000, will facilitate digital
education both at school and at home, if necessary. Regarding higher education, an ad-
hoc technical group was created, with the participation of the Ministry of Universities,
representatives of regional governments, representatives of the Conference of Rectors
of Spanish Universities and representatives of the University Students' Council, to
prepare the beginning of the 2020/2021 academic year. . In order to carry out these
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actions in good conditions, the relevant ministry has considered further amendments to
the specific legislation.
There are states, such as Lithuania or Malta, that have not initiated - at that time -
any measures.
2.2. The results of the applied educational policies.

Challenges. Innovative measures required
At the end of the school / university year, each EU Member State analyzed the
results obtained, in relation to the innovative measures imposed by the disturbances
created in the national education system as a result of the pandemic, identified the
challenges, respectively established measures to reduce the effects of these
disturbances on the education system.
Thus, Austria: identified the need to invest in digital equipment and materials;
there are several digital platforms in the same school; work is currently underway to
centralize these platforms and create a single platform in the same school for all -
students, teachers and parents; a more intensive digital training program for teachers is
being prepared; it is intended to create links between schools (networks); free
distribution of books will be provided.
Denmark: has a fairly adaptable education system, and this has proved beneficial in
rapidly changing the way we learn. This transition was only successful due to the huge
efforts of teachers and school leaders. Digital learning cannot, however, replace face-to-
face teaching. It is still too early to draw definitive conclusions about the lessons learned.
Crucial factors for a successful opening of schools: 1. The high degree of local autonomy
in the application of specific guidelines - with the involvement of teachers - ensured a
sense of security; 2. The vast majority of teachers are members of the trade union, in
which social dialogue is well established. Another lesson learned about vulnerable
children: despite the attention given, it was difficult to address their problems.
Estonia: distance learning has been a viable substitute for face-to-face learning,
but mainly due to the fact that Estonia has been implementing digital learning
opportunities for many years and various support networks have been introduced
during the crisis. The digital skills of most teachers have proven to be sufficient, as
they have been preceded for years by relevant training. The transition to distance
learning has also been easier, as important components of the digital learning
environment were implemented years before the crisis.
Finland: the transition to online education has shown inequality (in terms of
access to devices and the internet, skills needed to teach and learn at a distance and the
level of support available), but also innovation in the provision of online learning and
teaching supported by various media learning, open educational resources and
emerging technologies such as artificial intelligence.
Germany: distance learning does not work as well in all contexts and tends to
exacerbate differences in access to education. To counter this issue, inclusive
educational programs have been launched. An urgent school support program (EUR
500 million) has been detailed and is being implemented, in cooperation with the
Länder, under the umbrella of the Digital Pact for Schools.
364
Italy: adapting to the digital teaching process has not been easy. Distance learning has
allowed schools to experience unprecedented digital acceleration. Different level of
endowment of schools with equipment and non-uniform internet access, lack of
technological tools in the family, school dropout, regardless of the means by which lessons
are taught. The government has allocated extraordinary funds, and teachers have been very
helpful in assisting parents who have assisted their children in distance learning.
Latvia: The Ministry of Education and Science used surveys to assess distance
education. These surveys showed (more than 23,000 respondents: teachers, principals,
students, parents): 95% of teachers, 84% of students and 78% of parents rated the
distance learning process as good or very good: just over half of the students have all
the necessary technical resources; almost half of the respondents noted that distance
learning requires more work.
Romania: the important role of teachers and their continuous training; the
importance of family support for the online learning process; involvement of local
communities in actions to support categories of students at risk of exclusion; the need
for innovative approaches in the field of vocational education and training, both from a
technological and pedagogical perspective. In higher education: universities have
mobilized to support Erasmus-type students and teachers. From physical mobility, the
rapid transition to virtual mobility has been achieved, supporting the future
development of blended mobility.
Slovakia: to make up for lost time during school closure, the Ministry of
Education has launched a call for 500,000 euros to support voluntary summer school
initiatives - to help disadvantaged children recover and prepare for the next school
year, in a playful way. The "Distance Learning" portal was created by the Ministry of
Education in collaboration with NGOs - as a support platform for schools, teachers and
parents, designed to provide a wide range of digital learning tools and materials,
updated information, recommendations, guidance, counseling and assistance.
2.3. Innovative measures required. The decisive role

of the authorities in their implementation
The measures envisaged and adopted during 2020 by the central and local public
authorities, which aimed at the least possible disruption of the conditions before the
pandemic, showed, in particular, the dysfunctions in the conduct of educational processes.
Thus, each Community state, following the analyzes made, has increased its
intervention measures in order to recover the educational process and bring it as close
as possible to normal. Among the measures applied, we present below some of the
most relevant.
Cyprus: The strategic vision includes continuing digital education and gradually
adapting to digital learning environments. Develops a comprehensive plan for digital
education, focusing on: technological equipment and modernization of the digital
network, the pedagogical dimension of the use of digital media and the relevant reform
of the school curriculum. In cooperation with universities, it develops online teaching
and learning materials. In this regard, the new Digital Education Action Plan is
expected to support national efforts to digitally promote the education system.
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Denmark: An additional € 28 million has been allocated for the creation of an

additional 5,000 places of study at higher education institutions in 2020-2021, in order
to adapt to an expected increase in demand due to the current situation.
Estonia: In preparation for the next school / university year, further improvement
in the training of teachers and online learning services is envisaged to make distance
learning even more effective in the autumn, if needed.
France: strengthening the role of digital technology in education. In November
2020, the General Convention on Digital Education was held in Poitiers to assess the
impact of the crisis on education. For higher education, a call for projects for blended
education has been launched. Investing in education and human capital - a necessity.
Greece: providing the necessary digital equipment in schools. Teacher training in
digital teaching methods. Special training sessions and tools are already planned for the
cultivation of digital skills among teachers, with a special focus on distance learning
methods.
Lithuania: several investments before the start of the new school year - computers,
IT tools, professional development for teachers and school leaders, school buses in the
regions;
Portugal: more innovation and digital is needed, but also more equity and
inclusion. Amend legislation to allow international students from other European
countries and international schools who did not take state exams this year to access
Portuguese higher education institutions.
Romania: increasing the capacity of schools to support categories of students at
risk of exclusion, including through the purchase of IT equipment; teacher training and
development of digital skills for the use of virtual teaching-learning platforms; the
continuation of the “Teleşcoală” project in an extended form, with hours filmed for
several disciplines, the creation of a Virtual Library; development of blended mobility
in higher education.
Conclusions
Currently, the phenomenon of social innovation implemented in education has

become a necessity given the social context generated by the emergence of the Covid-
19 pandemic, this also emerges from the analyzes carried out on the action plans of
each country in the European Union, on the occasion of the Council of the Presidency
Organized on 29 June 2020.
In this context, social innovation in education must be manifested as an integrative
factor, to be stimulated and sustained, both through interventions acting outside the
system (state intervention, central and local public administration) and within it ( the
intervention of the management of the educational institution), by ensuring adequate
funding for education (perhaps the most important measure, given that innovation
necessarily requires financial support, as shown by the analysis carried out at the
above-mentioned Council meeting), and, respectively, a high-performance, dynamic
and innovative management that acts proactively to possible system disturbances.
366
Bibliography:
1. Osborne, S. & L. Brown, Innovation, Public Policy and Public Services Delivery in the
UK. The Word that would be King, In: Public Administration 89: 4, pp. 1335–1350, 2011.
2. Mulgan, J., The Art of Public Strategy. Oxford: OUP, 2009.
3. Howaldt, J. & M. Schwarz, Social innovation: concepts, research fields and
international trends. Dortmund: Sozialforschungsstelle Dortmund, 2010.
4. Newman, J. & J. Clark, Publics, Politics & Power: Remaking the Public in Public
Services. London: Sage, 2009.
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EDITURA Bibliotheca Târgovişte

Redactor-şef – Prof. univ. dr. Dan Ţop

Tehnoredactare – Loredan Marcu

Copyright © 2021 Editura Bibliotheca

Revistă acreditată de Consiliul Naţional al Cercetării Ştiinţifice

Faculty of Law and Administrative Sciences

The 17 -th Editio n

Târgovişte, June 4-5, 2021

VALAHIA UNIVERSITY OF TÂRGOVIŞTE

Prof. Ion M. ANGHEL, PhD – Romanian Society of European Law, Romania

Assoc. Prof. Constanţa MĂTUŞESCU, PhD – Valahia University of Târgovişte

TOWARDS A BETTER AND MORE EFFECTIVE PROTECTION OF VULNERABLE

OBLIGATION OF THE EMPLOYER TO INFORM THE PERSON SELECTED FOR

THE LAW APPLICABLE TO THE SEPARATION OF BODY IN THE ROMANIAN

CURRENT ISSUES REGARDING THE ENTERPRISE CONTRACT (Livia Mocanu) / 40

DOMESTIC VIOLENCE AGAINST WOMEN IN SPAIN. AN JURIDICAL AND

INNOVATIVE ELEMENTS IN THE AREA OF DOMESTIC VIOLENCE IN AGREEMENT

PREPARATION OF MARITAL STATUS DOCUMENTS OF ROMANIAN CITIZENS

ANALYSIS OF THE GENERAL PRINCIPLES OF PUBLIC ADMINISTRATION IN

ON THE THEORY OF EQUITY, RELY THE ELABORATION OF CODES IN THE

THE MEANINGS OF THE CONCEPT OF RESPONSABILITY

CODING OF CUSTOM RULES IN DIPLOMATIC LAW (Corina Florenţa Popescu) / 109

SOME OBSERVATIONS ON CYBER SECURITY AS A COMPONENT OF THE

COLLECTIVE REDRESS AND REPRESENTATIVE ACTIONS IN THE COLLECTIVE

RESTRICTION ON THE EXERCISE OF THE FUNDAMENTAL RIGHT OF ACCESS

USE OF ADVANCED ELECTRONIC SIGNATURE OR QUALIFIED ELECTRONIC

INMIGRANT WORKERS DURING THE PANDEMIC (Nicoleta Enache) / 156

CIVIL OFFENCE LIABILITY OF PUBLIC AUTHORITIES IN THE PERIOD OF

THE RIGHT TO WORK OF INMIGRANTS WORKERS IN SPAIN (Gratiela-Florentina

INFRINGEMENT OF THE RIGHT TO CONSULTATION BY THE OMISSION OF

THE ROLE OF PUBLIC INTERNATIONAL LAW IN CONTEMPORARY SOCIETY

RETURNING TO WORK AFTER „WORKING FROM ANYWHERE” PERIOD,

LIMITATIONS AND DISCONTINUITIES OF OWNERSHIP IN POSITIVE

ENVIRONMENTAL POLICY - LEGAL FRAMEWORK AND GENERAL PRINCIPLES

REPAIR OF CONTRACTUAL DAMAGE RESULTING FROM LOSS OF

EROSION OF CONSTITUTIONAL LOYALTY IN A STATE SUBJECT TO THE RULE

INTERCURRENT ILLNESSES AS ASSUMPTION ASSIMILATED TO THE WORK

BRIEF CONSIDERATIONS ON THE IMPORTANCE OF EVIDENCE IN CASE OF

THE EVOLUTION OF THE PROCESS FOR IMPLEMENTING PUBLIC EDUCATION

HISTORICAL PERSPETIVE OVER THE ORIGINS OF EUROPEAN UNION’S

PROMOTION TO PUBLIC FUNCTION, MECHANISM FOR DEVELOPING AND

MEASURES TAKEN BY ROMANIA TO PROTECT THE ELDERLY DURING THE

THE ROLE OF MEDIATION IN THE INSTITUTION OF MARRIAGE (Iulian Hagiu) /

FREEDOM OF THE PERSON IN THE CONTEXT OF THE PANDEMIC - COVID 19

CHALLENGES IN THE ROMANIAN LAW CAUSED BY THE SARS-CoV-2

STATUS OF THE CURRENT EFFORTS TO FOSTER BUSINESS RESPECT FOR

GENDER EQUALITY IN THE CONTEXT OF THE 2030 AGENDA AND COVID-19

SOCIAL INNOVATION - EDUCATIONAL POLICIES AND STRATEGIES.

TOWARDS A BETTER AND MORE EFFECTIVE

2. Concepts associated with vulnerable people

Although according to art. 2 of the Universal Declaration of Human Rights, “all

3. Legislative regulations on the protection of vulnerable persons at EU level

In fact, according to Eurostat13, in 2019, 92.4 million people in the European

In the area of anti-discrimination policies, the European Union aims to overcome

(2021-2030), based on the previous one16, thus contributing to the implementation of

immigrant or resident33. In addition to the distant origins similar to the phenomenon of

15. European Commission - Press release, Commission proposes a package of measures to

OBLIGATION OF THE EMPLOYER TO INFORM THE

The Treaty establishing the European Economic Community, and in particular

* Phd. Prof., "Alexandru Ioan Cuza" Police Academy, Bucharest, Romania.

Point 9 of the Community Charter of the Fundamental Social Rights of Workers,

As a directive, Member States must adopt those legislative measures in order to

a) the identity of the parties;