UPDATE: Doing Legal Research in Romania
By Dana Neacşu
Updated by Anamaria Corbescu
(Previously updated by Anamaria Corbescu in October 2009)
Dana Neacsu is a reference librarian at Columbia Law School, a lawyer and member of the bar of the State of New York, a former Romanian judge (1989-1990) and faculty member of the Romanian University School of Law (1990-1994). She holds an M.L.S. from CUNY (2001), an LL.M. from Harvard Law School (1994), a D.E.A. from Caen Université de Droit et des Etudes Politiques (1991), and a Diploma de Drept (J.D.) from Bucharest University School of Law (1989). She is author of Introduction to U.S. Law and Legal Research (Transnational, 2005)
Anamaria Corbescu is an experienced attorney with one of the largest intrenational law firms in Bucharest. She works on corporate/M&A, employment, intellectual property and media law. Anamaria completed her J.D. at the University of Bucharest (2002) and was a Fulbright scholar pursuing her LL.M. studies at Columbia University in New York (2009). Her education also includes: the EU Law Program (University of Bucharest, 2001), the American Institute on Political and Economic Systems (Georgetown University, Washington D.C./Charles University, Prague, Czech Republic, 2001), the Academy of Economic Studies ( M.Sc. Econ., 2004), Foundations of American Law and Legal Education Program (Georgetown University, Washington
NOTE: This is an on-line guide to Romanian legal research. It provides information and links to print and on-line resources and is aimed primarily at researchers outside of Romania needing an overview of Romanian legal research.
Published May 2012
Table of Contents
There are two main legal systems in the world: civil law and common law. The Romanian legal system belongs to the first group, under which only the Constitution and other statutory legislation constitute a legitimate source of legal rules.
Therefore, unlike under the US and other common law systems,
· Formally, the Romanian legal system does not recognize case law or judicial precedent as a source of legal rules. Previously decided cases therefore are not binding upon lower courts and do not create "law", but they may be invoked to support a line of reasoning already vetted by court in a similar situation;
· The doctrine provides guidance as to possible analogies where the law is silent;
· Trials in the Romanian legal system do not have a pretrial phase during which, for instance, discovery might occur as it does in the common-law system. Instead, discovery or its equivalent occurs as the trial proceeds. In criminal cases, however, there is a pretrial prosecution phase, when relevant evidence is gathered;
· There are no jurors, and;
· The judge has a proactive role in searching for the judicial truth.
Romania follows the principle of the separation and balance of powers - legislative, executive, and judicial - within the framework of constitutional democracy.
The Parliament is the supreme representative body of the Romanian people and the sole legislative authority of the country, consisted of two chambers: a lower house, the Chamber of Deputies, and an upper house, the Senate.
The Parliament enacts statutes, which are the main source of legal rules. Such statutes are officially published in the Official Gazette (Rom. Monitorul Oficial), the official journal of Romania (which runs its own publishing house, under the same name), where all legislation and other official notices are publicized.
The Parliament also is the source of the Constitution, the country’s fundamental law regulating the government structure, the fundamental rights, liberties and obligations of the country's citizens, the legislative process, as well as the core principles of economy and public finance.
In addition, the Parliament may pass a special law enabling the Government to issue orders in fields outside the scope of organic laws (Constitution, Art. 115).
The county, urban and rural areas have their own autonomous ruling bodies, which are part of the executive branch (local public administration) and which, within defined geographical and jurisprudential boundaries, are empowered to enact binding decrees within their respective territories, based on the principles of decentralization, local autonomy, and deconcentration of public services (Constitution, Chapter V. Sect. 2-a)
The Government consists of a Cabinet, which includes the Prime Minister and ministers of the various Ministries. Each Ministry has its own web site and can be contacted by phone, fax or email. For example, sources about The Ministry of Foreign Affairs are available here, including information about Romania’s EU and NATO membership and the role of the Ministry of Foreign Affairs in the domestic application of international treaties, agreements and conventions, signed or ratified by Romania.
The Government issues decisions and ordinances (Constitution, Art. 108) whose brief subject-matter descriptions and statements of purpose can be viewed here. The President may issue Presidential decrees (Constitution, Art. 100). The ministries also issue a large array of rules, in the form of regulations (Rom. regulamente) and norms (Rom. norme), approved by ministerial orders (Rom. ordine) and decisions (Rom. hotarari). Additionally, other agencies may issue rules, such as the rules issued by the National Agency of Control of Exported Products (Rom. Agentia Nationala de Control al Exporturilor - ANCEX). Finally, at local level, the Government appoints an executive representative - Prefect (Rom. Prefect) in each county and in the City of Bucharest, who is its representative at the local level (Constitution, Art. 123). Random executive orders, from both the national and local level, may be freely accessed on-line, as the vast majority of public authorities, agencies or other government bodies have their own websites, which are regularly updated.
The judicial system is divided into civilian and military courts. The civilian courts, generally, continue their pre-1989 structure of being organized at national, county (Rom. judeţ) and municipal level.
Romanian justice is organized on the principle of double jurisdiction. Therefore, as a rule, any case decision from a first-instance court (Rom. judecatorie) may be challenged and subject to a complete de novo retrial on the facts, the procedure and the law by a higher court – tribunals (Rom. tribunale) or courts of appeals (Rom. curti de apel). The higher courts hear appeals from the lower courts, but, depending on the subject-matter jurisdiction, may also act as a court of first instance for administrative and commercial law cases, including bankruptcies and the more important or serious civil and criminal cases.
Before 1989, the Ministry of Justice was responsible for the administration of justice. After 1989, the Supreme Court of Justice subsequently renamed the High Court of Cassation and Justice of Romania (Rom. Înalta Curte de Casaţie şi Justiţie a României), and lower courts have that responsibility:
"Justice shall be administered by the High Court of Cassation and Justice, and other courts of law set up by the law." (Constitution, Art. 126)
Additionally, under Art. 131 of the Constitution, the Public Ministry is charged with the duty to represent the general interests of society and to defend the legal order, as well as the individual rights and freedoms, particularly in criminal cases. The Public Ministry, which discharges its powers through a system of Public Prosecutors, replaced the former Office of the Prosecutor General (Rom. Procuratura) - which had been established in 1952.
Civilian judges and Public Prosecutors are nominated by the Superior Council of the Magistracy. Once thereafter appointed by the President, judges are, by law, irremovable and therefore enjoy life tenure, under article 125 of the Constitution. The Council acts as an administrative/disciplinary organ, whose purpose is to guarantee the independence of justice. It is consisted of 19 members, of whom: (i) 14 are magistrates, elected in the general meetings of the magistrates, and validated by the Senate, (ii) 2 are representatives of the civil society, specialists in law, who enjoy a good professional and moral reputation, elected by the Senate, and (iii) the Minister of Justice, the president of the High Court of Cassation and Justice, and the general public prosecutor of the Public Prosecutor's Office attached to the High Court of Cassation and Justice. (It should be well-noted that, because judicial precedent is not a recognized source of law -and thus judges do not "make law" - and, further, because normal judges cannot exercise judicial review, the professional status and importance of judges is very different, and generally less, than that enjoyed by common-law judges.)
Unlike the US Supreme Court, the Romanian High Court cannot exercise judicial review in deciding the constitutionality of legislation. That function is reserved for a different court, the Constitutional Court (Constitution, Art. 144)
In addition, the Legislative Council is an advisory expert body of Parliament that reviews and opines on draft legislation for the purpose of a systematic unification and co-ordination of the whole body of laws.
Formally, Romanian courts apply only written legislation, which is created by the legislature and in some circumstances by the executive, but never by courts, and thus never include judicial precedent. The law is structured hierarchically, with the Constitution at the top, then codes and parliamentary statutes, and, at the bottom of the hierarchy, Executive-issued "statutes." Before 1989, Romanian laws issued by the Parliament were published in an official journal called Buletinul Oficial al Republicii Socialiste România, and those issued by the Government were published in Colectia de hotarîri ale Consiliului de Ministri si alte acte normative. Those publications became Monitorul Oficial (Engl. Official Gazette) after the 1989 political changes.
On-line, the legislation is available through the web page of the official legal publication, Monitorul Oficial and, generally, on the websites of the relevant public authorities – the Parliament, the various ministries and other bodies with regulatory powers.
When a statute is silent as to a particular set of facts, scholarly texts (textbooks and treatises) are heavily used by judges and by the litigating parties for guidance in preparing their line of arguments. The law libraries of Harvard Law School and New York University School of Law have large collections of such Romanian works.
The Romanian legal system, like any other civil law system, does not recognize legal precedent as stare decisis, with one notable exception in the constitutional law area.
Every time a court is confronted with an unconstitutional statute, it has to defer the matter to the Constitutional Court, the sole authority of constitutional jurisdiction in Romania, and await its decision in every such case, before the matter at issue can be retried upon one party's request. Once declared unconstitutional, the statute in question is automatically abrogated (totally or partially) and courts at every level are prevented from ever applying it again. Selected decisions of the Constitutional Court are available on-line in English. The Court’s selective on-line archive goes back to 1992.
In addition, the decisions of the highest Romanian court (High Court of Cassation and Justice), which, of course, are limited to statutory application and interpretation and do not address issues of constitutionality, are consciously followed by lower courts' judges in an effort to unify the law of the land. Although there is no system of general publication of judicial decisions similar to that in the US (see the Atlantic Reporter, etc.), its decisions from 2003 onward may be accessed, to a certain extent, on-line. Often only their summaries (all in Romanian) are available. However, the search may be done by subject matter, by typing words contained in the text of the decision.
Romania ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms.
By ratifying this convention, Romania has agreed to enforce the rights guaranteed by the convention, including the right of individual petition to, and the obligatory jurisdiction of, the European Court of Human Rights (ECHR). Accordingly, any Romanian citizen may bring a case against the Romanian State before the Court and the decision will be binding upon the Romanian State.
After a long and sinuous accession process -- Romania presented its application for membership in the European Union on 22 June 1995 – Romania was finally admitted to the EU family on January 1st, 2007. As a result, Romania has a judge in the Court of Justice of the European Communities (EJC) and another one in the Court of First Instance (CFI). Both judges are appointed for a six-year term, which can be renewed.
The ECJ has the power to settle community legal disputes between EU member states, EU institutions, businesses and individuals.
The CFI is responsible for giving rulings on certain kinds of case, particularly actions brought by private individuals, companies and some organizations, and cases relating to competition law.
Thus, if ECJ interprets Community law, the Romanian national courts will be expected to apply the EJC’s interpretation of Community law to the facts of the case.
Instead of textbooks, so common in North American law schools, the most common type of legal academic work in Romanian law schools is the legal treatise, which explains legal principles as applied to one legal area. Harvard Law School, New York University Law School and Columbia Law School all carry Romanian legal treatises.
The major public law schools have their own law reviews. For example, the Bucharest Faculty of Law publishes Analele Universitatii Bucuresti. Drept, and the Cluj Faculty of Law publishes Analele Facultatii de drept din Cluj.
Additionally, one of the most influential Romanian law reviews is Dreptul (Engl. The Law), which superseded Revista Romana de Drept (Engl. The Romanian Law Review) which superseded Justitia Noua (New Justice), published by Uniunea Juristilor Democrati Din România (Engl. The Union of Romanian Democratic Lawyers). Other legal periodicals that are popular among practitioners are Pandectele Romane (Engl. The Romanian Pandects), Revista Romana de Drept Privat (Engl. The Romanian Private Law Review) and Revista de Drept Comercial (Engl. The Commercial Law Review), all three published by commercial publishers and containing notes, commentaries, and articles on newly evolved legal issues.
There are a few journals published by WOLTERS KLUWER: Romanian Pandects is a collection of essential Romanian jurisprudence, doctrine and legislation. Well-known practitioners and prestigious law professors contribute to the content of the journal that covers doctrine articles and the jurisprudence of the High Court of Justice and Cassation, Constitutional Court, appeal courts, high courts, courts of justice, and other judicial institutions. The journal offers an easy navigation through its content and also abstracts in English and Romanian. It is available: in print, ePub, Mobi, PDF format. The online version covers the journal issues from 2003 to the present. Issues per year: 12; Indexed in HeinOnline, EBSCO, ProQuest. The Romanian Business Law Review is the only Romanian journal dedicated exclusively to Business Law. The journal contains doctrine articles and commented decisions of the national and European courts The articles are written by personalities of the academic and professional law field and cover company law, obligations, insolvency, competition law, arbitration. The journal offers abstracts in English and Romanian and an easy navigation through its content, due to the keywords index. It is available: in print, ePub, Mobi, PDF format. The online version covers the journal issues from 2003 to the present.Issues per year: 12; Indexed in HeinOnline, EBSCO, ProQuest. The Romanian Labor Law Review contains articles and jurisprudence about Labor law, written by prestigious authors. In the pages of the journal, readers can find debates about new laws, new law projects, decisions of the Court of Justice and the Constitutional Court. In the same time, readers get to know the European and the international Labor law, other countries’ regulations and foreign jurisprudence. The journal offers abstracts in English and Romanian and an easy navigation through its content due to the keywords index. It is available: in print, ePub, Mobi, PDF format. The online version covers the journal issues from 2003 to the present.Issues per year: 12; Indexed in HeinOnline, EBSCO, ProQuest. The Romanian European Law Review offers to jurists and to all interested by the European law evolution essential information concerning the European institutions, the application of European regulations and their influence on domestic law. The authors of the doctrine articles are personalities of the academic and professional law field, from Romania and from abroad. Jurisprudence section offers important overviews of the European courts decisions. The journal has abstracts in English and Romanian, a Summary in Romanian, English and French and a keywords index. It is available: in print, ePub, Mobi, PDF format. The online version covers the journal issues from 2003 to the present. Issues per year: 4; Indexed in HeinOnline, EBSCO, ProQuest.
Although not published in Romania, The East European Constitutional Review, which is published by New York University Law School and Central European University, also contains articles focused on Romania, such as Constitution Watch: A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR.
· The Global Legal Information Network (GLIN) is a U.S.-governmental database, which "maintains and provides a database of laws, regulations, and other complementary legal sources."
· Part of the FindLaw legal search engine
· An English guide to foreign and international databases edited by Mirela Roznovski, New York University Law Library
· This English-language database is a portion of Pritchard Law Webs' Internet Law Library, which is the successor to the US House of Representatives Internet Law Library
· Legal search engine maintained by Washburn University School of Law Library
· Legislatie (laws, cases in vernacular) at the Romanian Ministry of Justice
· EUR-Lex (free access to EU treaties, legislation, case-law and legislative proposals, including correspondence table for Romanian legislation) has a Romanian version
· Juridice (a commercial website hosting legal news and articles, as well as legal marketing)
The Romanian higher education system comprises both public and private law schools. The major public law schools are faculties within the major universities: Bucharest University - Faculty of Law, Iasi University, and Cluj University. Aside from those, there are few other public schools, and scores of private law schools who attract those who failed the entrance exam to the public law schools.
Students at both public and private law schools have to pass an admission test (or have obtained certain grades in high school and, for private schools, pay certain fees), and must complete four years of study.
Generally, the first year includes:
General Theory of Law, Romanian State and Law History, Romanian Constitutional Law and Political Institutions, Roman Law, Civil law (I), Management, Political Science, Philosophy, Sociology, Roman Law, and/or a foreign language.
The second year includes:
Civil law (II), General Penal Law, Administrative Law, International Public Law, Financial and Fiscal Law, Criminology, and International Protection of Human Rights.
The third year includes:
Civil Law (III), Special Penal Law, Procedural Penal Law, Employment Law, EU Law, Banks and Currency Law, Competition Law, Intellectual Property Law, International Trade Law, International Private Law, Criminal Investigation, Procedural Civil Law, Forensic Pathology, Family Law and License Examination Training.
After graduation and receipt of an approved law degree, students must pass various professional examinations in order to legally practice law as lawyers, magistrates (judges or prosecutors), public notaries, and public officials within various state bodies or bailiffs. Further, for most professions, upon passing the respective admission exam, candidates must enroll in a form of supervised practical training (usually for two-year periods), leading to a final examination, which, once successfully completed, ensures full qualification.
Law students have always been organized -- before 1989, as part of the so-called Communist Party, per each public law school, and, after 1989, according to interests, for example, ELSA.
After 1989, the rules of legal practice were provided by Law no. 51 of 7 January 1995, on the profession of advocate.
Currently, Romanian lawyers have a variety of professional associations:
The largest one is Uniunea Nationala a Barourilor din România - UNBR (Engl. the Romanian National Bar Association). Each county, including Bucuresti (Engl. Bucharest), the capital, also has bar associations. See Baroul Bucuresti (Engl. the Bucharest Bar Association).
Generally, each public law school, each court of appeal and district courts in major cities has a law library.
The Ministry of Justice and the Institute of Legal Research of the Romanian Academy have their own law library as well. In addition, the Library of the Romanian Academy stores over 7 million books, some of them of legal interest. The National Library also contains legal titles and is opened to everybody older than 16. Its catalog can be accessed on-line.
After 1989, the state bar became privatized and currently there are many private law firms in the cities where courts are located. Additionally, international law firms have opened offices in Bucharest. Some of them may be contacted via the Internet:
Regia Autonomă "Monitorul Oficial" publishes Romanian legislation, including the Romanian Official Gazette, and collections of foreign translations of Romanian laws.
Romanian administrative law is legally framed by the following statutes:
It should be well noted, however, that the term "administrative law" has a meaning quite different from its common-law counterpart. It is not agency law, in the common-law sense, but deals with the entire, and relatively autonomous, body of law within the jurisdiction of the Government as opposed to that deriving from Parliamentary statutory law.
After 1989, the Romanian Parliament adopted banking laws mirroring the privatization changes, and they used to available on-line. Currently, Romania has a central bank (Romania’s National Bank, Rom. Banca Nationala a Romaniei) and a multitude of private banks, a list of which can be found on the national Bank’s site.
Strong supporters of economic changes in Eastern Europe, the World Bank and the International Monetary Fund (IMF) have been increasingly involved in Romanian politics. Both institutions support the privatization of Romanian financial institutions, whose legal regime was established by Law no. 83/1997, as subsequently amended. Their economic power, and Romania's financial condition, means their decisions frequently had legal, as well as political, consequences.
The new program (2011-13) agreed between the Government of Romania, IMF and the European Commission sets out the reform agenda focusing on fiscal consolidation, further privatizations and sustainable economic growth. The EUR 3.5 billion Stand-by Arrangement (SBA) is in conjunction with precautionary support from the EU of EUR 1.4 billion and a loan from the World Bank of EUR 0.4 billion. (See, World Bank - Romania).
Currently, issues of bankruptcy are governed by Law no. 85/2006, which regulates the procedure for reorganization in commercial insolvencies.
Generally, insolvency proceedings in Romania may be initiated upon request of: (i) the debtor which is in a situation of presumed insolvency or imminent insolvency (please see below), or (ii) any creditor whose certain, liquidated and due claim exceeds RON 30,000 (approximately EUR 7,150) or, respectively, the sum of six national median employees’ wages, and was not paid within 30 days from maturity date, when the debtor is in a state of presumed insolvency. Insolvency is presumed when the debtor has failed to pay one or more creditors within 30 days from the maturity date, but this does not mean that insolvency proceedings are automatically commenced at the end of the 30-day period, if the debtor asks for a review of its situation in court. Insolvency is deemed imminent when there is evidence that the debtor will not be able to pay the outstanding debt at maturity date.
The body of Romanian law that defines the entire Romanian civil law system is codified under the title of Codul Civil Român (Engl. The Romanian Civil Code), initially published in July 2009, but enacted on October 1, 2011 (See Monitorul Oficial no. 505 of July 15, 2011). The previous code, in force since December 1, 1865 followed the French Civil Code of 1804 and had been reinstated after the fall of the communist regime in Romania, in 1989 (See Monitorul Oficial 21 Nov. 1991).
Inspired from the provisions of other codes such as the Code of Quebec, the Italian Civil Code, the Swiss Civil Code, as well as from the solutions adopted by the UNIDROIT Principles, the new Code clarifies the key-principles of Romanian law and crystallizes certain legal concepts that have been long recognized by the legal literature and practice, as adaptations to the late 20th and 21st centuries. The new Code is part of a larger legislative reform envisaged to be implemented in stages, and which will also include enactment of a new Civil Procedure Code, a new Criminal Code and a new Criminal Procedure Code.
The new Code regulates matters of civil, commercial and family law, which were, until then, subject to distinctive codes of norms (the old Civil Code, the Commercial Code and the Family Code) and, hopefully, its integrated approach will bring a coherent and more modern approach of current legal issues. Art.2 of the Code states that it covers both the moral and pecuniary relationships with legal relevance among persons, irrespective of the governing area of law (commercial, employment, etc.) and defines the concepts of “professionals” and “enterprise” (covering NGOs, companies and any legally relevant entities), with a view to cover the entire range of private law subjects.
The current Romanian Civil Code is divided into seven parts:
1. Book I “About Persons”: Title I “General Provisions”; Title II “The Individual”; Title III “Protection of the individual”; Title IV “Legal Entity”; Title V “Defense of non-patrimonial rights”
2. Book II “About Family”: Title I “General provisions”; Title II “On Marriage”; Title III “Kinship”; Title IV “Parental authority”; Title V “Obligation of support”
3. Book III “About Goods”: Title I “Assets and general provisions on real rights”; Title II “Private property”; Title III “Dismemberments of the Private Ownership Right”; Title IV “Trust”; Title V “Administration of the property of others”; Title VI “Public Property”; Title VII “The Land Book”; Title VIII “Possession”
4. Book IV “On Inheritance and Liberalities”: Title I “General Provisions on Inheritance”; Title II “Legal Succession”; Title III “Liberalities”; Title IV “Transfer and partition of the estate”
5. Book V “On Obligations”: Title I “General Provisions”; Title II “Sources of Obligations”; Title III “Modalities of the Obligations”; Title IV “Complex Obligations”; Title V “Performance of Obligations”; Title VI “Transfer and Transformation of Obligations”; Title VII “Extinguishment of Obligations”; Title VIII “Restitution of Performances”; Title IX “Various special contracts”; Title X “Personal Security”; Title XI “Privileges and security interests in rem”
6. Book VI “On Extinctive Prescription, Forfeiture and Calculation of Periods”: Title I “Extinctive Prescription”; Title II “General Regime of Forfeiture Periods”; Title III “Calculation of Periods”
7. Book VII “Provisions of Private International Law”: Title I “General Provisions”; Title II “Conflicts of Law”.
For a more detailed explanation of the new Code and related implementation matters, please refer to the conclusions of the expert reports prepared within the “Technical Assistance for the Preparation of the Enforcement of the New Civil Code, Criminal Code, Civil Procedure Code and Criminal Procedure Code” (Judicial Reform Project Loan: #IBRD 4811), posted by the Ministry of Justice and to the other explanatory materials prepared by the various experts . In addition, the conference summaries and notes posted on the website of the National Institute for Training of Magistrates (in Romanian language only) (also under the aegis of the Ministry of Justice) are a good starting point for research.
While the 19th century Code of Civil Procedure is still enforced (albeit with major amendments) in its original form, the 19th century Code of Criminal Procedure was abrogated and replaced by the 1968 Code of Criminal (Penal) Procedure, which was, later on, substantially amended.
The Code of Civil Procedure is divided into seven books, or parts.
The first part covers judicial competency, the second covers certain general rules of procedure during trials, the third part covers other general rules of procedure, the fourth part covers arbitration, the fifth part covers execution and attachment, and the sixth part contains specific rules of procedures governing specific types of trials, such as divorce. The last part contains transitional rules adopted in 1993.
The Code of Criminal Procedure is divided into two main parts: a general part and a special part. The general part is further subdivided into five titles:
The special part is further divided into four parts:
Major procedural reforms were introduced by Law no. 281/2003 and Government Emergency Ordinance 66 of 10 Jul 2003 as well as Government Emergency Ordinance 55 of 25 June 2004. The text of the Code of Criminal Procedure is available on-line.
We note that, to date, the final drafts of a Civil Procedure Code and of a Criminal Procedure Code, accompanied by special pieces of legislation for their implementation are undergoing the final parliamentarian approval stages and are scheduled to come into effect by the end of 2012 and, respectively, in 2013. For details on the draft Codes, please refer to the Ministry of Justice’s special website section . For details on the legislative process, please refer to the Chamber of Deputies website, which tracks down the adoption process
Principles of the Civil Trial”
The new Criminal Procedure Code will have two parts, a general and a special one, further divided as follows:
Law no. 21/1991, as subsequently amended and republished, establishes the main rules governing citizenship. Law 122/2006 regarding asylum in Romania, as subsequently amended and republished, governs the legal status of refugees. In addition, Government Emergency Ordinance 194/2002 regarding the foreigners’ regime in Romania, as amended, and Government Emergency Ordinance 56/2007 regarding employment and secondment of foreigners on Romanian territory regulate the status of non-EU citizens in Romania. As for EU or EEA citizens, Government Emergency Ordinance 102/2005 sets out the conditions of their free circulation and residency rights.
After 1989, Romania adopted a series of new laws in a desire to ensure the rapid change of power, which have been gradually reshuffled to result in a more modern and efficient legal framework at present. Among them are the new communications laws, including telecommunications and satellite transmissions (e.g., Government Emergency Ordinance no. 111/2011 regarding electronic communications, Government Ordinance no.31/2002 on postal services and Law no. 504/2002 on radio and television, all subsequently amended).
The National Authority for Communications has broad regulatory and oversight powers and its main objective is to enhance competition in the electronic communications and postal services sectors, with a view to protect the end-users. Radio frequencies and numbering resources are state-owned and the National Authority for Communications manages them by allocating them to private actors.
The National Audiovisual Council has special regulatory, enforcement and oversight powers with respect to mass media (Romania’s TV and radio stations) and the content of audiovisual programs in general.
Upon the entry into effect of the new legal framework for civil and commercial matters, namely the Romanian Civil Code, on October 1, 2011, the 19th century Commercial Code (Rom. Codul Comercial), which had followed the Italian model, has been abrogated (see above Section 5.4).
In addition to the new Civil Code, commercial law matters are also governed by certain special legislation, which includes:
· Law no. 15/1990, as amended, governs the reorganization of state-owned enterprises as autonomously administered concerns and specifies the procedures for privatization and creation of privately held business associations.
· Law no. 26/1990, as amended and republished, provides the commercial and trade registry rules.
· Law no. 31/1990, as amended and republished, covers the formation, powers, activities, and liquidation of partnerships, companies with limited liability, and joint stock companies.
· Law no. 36/1991, as amended, contains the rules for the creation of private agricultural entities.
· Government Emergency Ordinance no. 44/2008, as amended, regarding the authorization of individuals and family association that carries out independent commercial activities.
The current law on the protection and encouragement of competition is Law no. 21/1996, as amended and republished, on competition, and Law no. 11/1991, as amended, on unfair competition.
Law 297/2004 about capital markets is a revision and consolidation of several basic acts governing investments, including of previous normative acts in the field.
The National Securities Commission is the body, which is homologous to the U.S. Securities and Exchange Commission. It has broad regulatory and oversight powers and is responsible for all the operations on capital markets.
The Romanian Chamber of Commerce and Industry and the National Trade Registry Office created an electronic database that assists investors in finding legal and business-related information about Romanian-based firms. Investors may access the Bucharest Stock Exchange on line.
Major and far-reaching amendments to the Constitution of 1991 were introduced, pursuant to a nation-wide referendum, by Law No. 429/2003 on the reform of the Constitution, which was published in Monitorul Oficial no. 758 of 29 October 2003. The amended version is available on-line.
At the time, this collection of amendments was meant to accommodate the EU directives and the related political reforms, as well as to set the stage for Romania’s accession to the EU. Inter alia, the Republic of Romania is characterized as: (i) a national, sovereign, independent, unitary and indivisible state; (ii) a democratic and social state, which warrants human dignity, citizens rights and freedoms, justice, and political pluralism; (iii) guarantees equality of its citizens irrespective of race, nationality, ethnic origin, language, religion, gender, political opinion, membership in political parties, estate or social origin.
Constitutional law is construed and applied in accordance with the United Nations Universal Declaration on Human Rights and with the international treaties or conventions ratified by or to which Romania is party. In case of conflict between the international and the domestic law, international law is paramount except when the Constitution or other internal laws contain provisions that are more favorable.
Romania is a semi-presidential republic, where the popularly elected president appoints the cabinet. In turn, the cabinet is responsible to the Parliament, which may force the cabinet to resign through a motion of no confidence. Although the division of powers is the core concept of Romanian constitutional law, exceptionally, the president and the cabinet can also legislate in certain situations, if such power has been conferred to them by delegation, from the Parliament. In addition, the president has a number of legislative powers (e.g., the formality of promulgation, the possibility to return a draft bill to the bi-cameral Parliament). The laws with the highest authority after the Constitution and its amendments are adopted by the Parliament.
After 1989, according to its new political regime, Romania adopted by referendum a new Constitution, its seventh, on 13 December 1991. The 1991 Constitution may be found in English on the Romanian Parliament's web site. It can also be found in Central and East European Legal Materials, which is available in print (vol. 5) in most law school libraries' collections. The prior Romanian constitutions are: the 1866, 1923, 1938, 1948, 1952 and 1965.
For an introductory textbook on Romanian constitutional, law by a well-established Romanian Professor of Constitutional law at Cluj University, Draganu, and Tudor. Drept Constitutional si Institutii Politice: tratat elementar, Bucuresti : Lumina Lex, 1998.
For a monograph written by a younger legal expert, the translated title of which is "Constitution of Romania, 1991: A Critical Approach", Dianu, Tiberiu, Constitutia României din 1991: o abordare critica. Bucuresti: Oscar Print, 1997.
Romanian elections take place according to Law no. 35/2008 regarding the election of the Chamber of Deputies and of the Senate. The Permanent Electoral Authority is the institution with logistical and legislative attributions that oversees the election process.
In 2004 the elections for the Parliament members and for the country’s president were held simultaneously, but, in light of the constitutional amendment that extended the presidential term to five years (instead of four), parliamentary and presidential elections will be held separately in the future. In addition, local elections are held every four years in Romania, to elect the mayors of the cities and communes of the country.
Since 1989, political parties have become a major presence in Romanian elections and, since 2003, have been regulated by Law no. 14/2003.
Romanian law does not contemplate "contract law" as a separate legal discipline. Contracts are viewed as a category of civil law (See bail, rent, etc) or as part of commercial law (when the focus is on the status of the contracting parties and not on the substance of the contract). See e.g., Civil Code Book V, which regulates obligations and various types of contracts.
Based on the information provided by the World Bank on its website, Romania ranks 72 out of 183 economies with respect to the ease of doing business. It takes up to five days on average to set up a limited liability company and there are nominal administrative fees to be paid to obtain a business registration number.
Commercial entities may be created in one of the five forms provided by the Romanian law: (i) general partnerships, (ii) limited partnerships, (iii) joint-stock companies, (iv) partnerships limited by shares, and (v) limited-liability companies.
As opposed to the partners of general partnerships and the general partners of limited partnerships or of partnerships limited by shares, which are held jointly and severally liable for the obligations of the entity, the shareholders of joint-stock companies and of limited liability companies, as well as the limited partners of limited partnerships or of limited partnerships, are held liable within the limits of their financial or in-kind contribution to the formation of the entity.
For more information, you may refer to the National Trade Register Office.
· The 1973 version reduced the overall number of indictable offenses, introduced lighter sentences as well as a system of release on bail for those accused of minor crimes was established, and mandated rehabilitation instead of prison sentences in many cases.
· The 1989 version abolished the death penalty (Law no. 7 of 1989).
· The 2004 version decriminalized same-sex relationships.
The Criminal Code is divided in two parts: a general and a special part. The general part is further subdivided into nine titles: the first covers the foundation of penal law, the second covers the general forms of crimes, the third covers sanctions and their applications, the fourth juvenile delinquency, the fifth covers, the means of safeguard, the sixth covers situations in which there is no criminal responsibility, the seventh and the eighth describe situations in which criminal responsibility and sanctions do not apply, and the ninth title contains a description of various criminal terms. The special part is further subdivided into twelve titles, each one describing the regime (elements, responsibility and sanctions) applicable to specific types of crimes.
For historical research, remember that:
The new draft Criminal Code (please refer to Section 5.5 above for details) is scheduled to come into effect in 2013 and will be divided into two main parts, further structured as follows:
The Romanian socialist labor code, Law no. 10 of 23 November 1972, was abrogated as many of its sections, such as the one on the guaranteed right to work (Art. 2), had become obsolete by the nature of the new political and economic environment.
The new Labor Code (Rom. Codul Muncii), approved through Law no. 53/2003, as amended, came into force on March 1, 2003. It reflects the European standards governing employment relationships and is the cornerstone of the employment framework in Romania. In addition, the if the case, industry and company-level collective bargaining agreements and other more specific legislation governing distinct matters such as unions, business transfers and labor health and safety standards, may apply, superseding any terms of the individual employment agreements, to the extent that they are more favorable to the employee.
A new round of amendments entered into force in March 2011, the result of the Government’s attempt to bring more flexibility and competitiveness between employers and employees. Among others, changes as regards fixed-term contracts, work time, performance measurement, collective dismissals, a lower protection for union leaders and harsher sanctions for illegal work, have been introduced. Also, a new Social Dialogue Law, no. 62/2011, effective May 13, 2011, implemented further reforms, bringing together and revamping several older regulations regarding trade unions, employers’ organizations, the Economic and Social Council, as well as collective bargaining and labor conflicts, in line with the European provisions on the matter.
The basic law on the protection of the environment is Government Emergency Ordinance no. 195/2005, successively amended to comply and keep pace with the EU standards.
For background information on environmental law in Eastern Europe Art.: Environmental problems in Eastern Europe. London; New York: Routledge, c1996.
The current legal framework governing family law matters is comprised in the new Civil Code - Book II “About Family”, which is divided into five titles: Title I “General provisions”; Title II “On Marriage”; Title III “Kinship”; Title IV “Parental authority”; Title V “Obligation of support”.
Among the more recent family legislation is:
Adoption is mainly regulated by Law. no. 273/2004 on the legal status of adoption, as well as by its implementing norms. The Romanian Office for Adoptions is the specialized government institution with oversight powers in his field.
Romania has ratified the Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption, concluded in the Hague on May 29, 1993 and has acceded to the European Convention regarding the Adoption of Children, concluded in Strasbourg on April 24, 1967.
For adoption procedures and requirements discussed and accompanied by English translations Internal and Intercountry Adoption Laws (Kluwer Law International, -2002).
Among the major pieces of general legislation in this area, we mention:
· Law no. 136/1995, as amended, on insurance and reinsurance,
· Law no. 32/2000, as amended, on insurance companies and insurance supervision, and
· Law no.95/2006, as amended, on the health reform.
Law no. 8/1996, as amended, on copyright and neighboring rights, is an almost exact replica of the current Spanish copyright law, which was the most protective law of its time. Additionally, Law no. 186/2003, as republished, further overviews the encouragement of writing and literary activities and publishing. Oficiul Roman pentru Drepturi de Autor (the Romanian Copyright Office) is the specialized government body responsible for monitoring, observing and enforcing copyright legislation in Romania.
Romania has adhered to: (i) the Bern Convention for Protection of Literary and Artistic Works of 1886, as revised, and to (ii) the Rome Convention for Protection of Performing Artists, Phonograms Producers and Radio Broadcasting Bodies of 1961. In addition, Romania has ratified the World Intellectual Property Organization Copyright Treaty, adopted in Geneva on December 20, 1996, as well as (ii) the 1925 Hague Agreement concerning International Registration of Industrial Designs, as supplemented.
· Industrial Property Protection. Trademarks:
Law no. 64/1991, as amended, on inventions and innovations, accompanied by its implementing regulations, governs the patent issuance process. Law no. 129/1992, as amended and republished, governs industrial drawings and models, while Law no. 84/1998 regulates the terms and conditions for obtaining legal protection for trademarks and geographical indications.
Oficiul de Stat pentru Inventii si Marci (the State Office for Trademarks and Inventions) is the specialized government body receiving registration applications and issuing protection titles – patents for inventions and, respectively, registration certificates for industrial drawings and models, as well as for trademarks.
Romania has adhered to the Convention on Grant of European Patents (EPC) adopted in Munich in 1973, as amended, as well as to both: (i) Strasbourg Agreement concerning the International Patent Classification of 1971, as amended, adopting the common classification for patents for inventions, inventors' certificates, utility models and utility certificates, and to (ii) the Locarno Agreement concerning the International Classification for Industrial Designs of 1968, as amended, adopting the single classification for industrial designs. Also, Romania is party to: (i) the TRIPS Agreement (“Trade-Related Aspects of Intellectual Property Rights”), (ii) the Hague Agreement Concerning International Registration of Industrial Designs signed in 1925, as revised and supplemented, (iii) the Washington Patent Cooperation Treaty signed in 1970, as amended,), and (iv) the Patent Law Treaty adopted at Geneva in 2000.
With respect to trademarks, Romania has adhered to the Treaty regarding Trademarks, concluded in Geneva in 1994 and has ratified the 1891 Madrid Agreement concerning International Registration of Trademarks, as revised, and the Protocol regarding the International Registration of Marks, signed at Madrid on June 28, 1989. In addition, Romania has adhered to both: (i) the Nice Agreement concerning International Classification of Goods and Services for Purposes of Registration of Trademarks of 1957, as revised, as well as to (ii) the Vienna Agreement concerning International Classification of Figurative Elements of Trademarks, signed on 1973, as amended.
In 1992, Romania enacted Law 105/1992 on conflicts of law (legea cu privire la reglementarea raporturilor de drept international privat), which, to date, is no longer applicable.
In light of Romania’s EU membership, Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) and (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) govern conflicts of laws in cases where Romania is involved.
The new Romanian Civil Code (Book III “About Goods”: Title I “Assets and general provisions on real rights”; Title II “Private property”; Title III “Dismemberments of the Private Ownership Right”; Title IV “Trust”; Title V “Administration of the property of others”; Title VI “Public Property”; Title VII “The Land Book”; Title VIII “Possession”) and various other legislation ensure a complex domestic real estate legal regime.
Some of the key-laws are:
· Land Law no. 18/1991, as amended and republished;
· Law 10/2001 regarding the legal status of the real estate abusively taken over by the State between March 6, 1945 and December 22, 1989, as amended and republished;
· Cadastre and Real Estate Publicity Law No. 7/1996, as amended and republished.
The taxation system has dramatically changed in Romania since 1989. The current legal regime is governed by Law 571/2003 – the Fiscal Code, as amended and a complex system of implementing norms.
Some tax legislation (including translations into English) is available on the website of the Ministry of Public Finance on-line .
The Romanian legal system, like all civil law systems, includes "tort law," although expressed in the far more typically laconic civil law style, and therefore in the form of a very general prohibition against wrongful (and undefined in the more highly developed common-law sense) conduct. Tort law is contained in the new Civil Code.
A comprehensive legal framework governing consumer protection has been adopted in the last two decades, largely harmonized with the corresponding European standards. The main regulatory and enforcement agency with jurisdiction in such matters is the National Authority for Consumer Protection, active since 1992, which has offices throughout the country.
In addition, on August 2, 2000, the Romanian Parliament adopted Law 148/2000 - the Publicity Law, as subsequently amended that governs advertising. Under the aegis of the National Audiovisual Council, a plethora of regulations governing the advertising of consumer goods on Romanian television and radio stations has been adopted.
The legal framework is set out by the new Civil Code (Book IV “On Inheritance and Liberalities”: Title I “General Provisions on Inheritance”; Title II “Legal Succession”).
On January 1st, 2007, Romania became member of the European Union, and subject to EU law. A concise overview of the Romania’s accession to the EU and its legal implications is available on the site of Romania’s Permanent Representation to the European Union and of the European Commission’s Representative Office in Romania.