WRITTEN QUESTION E-0353/00

by Olivier Dupuis (TDI) to the Commission

(14 February 2000)

Subject: Romania: compatibility of draft legislation on the rules applicable to foreign nationals with Community law

On 25 January 2000, the Romanian Chamber of Deputies' committees on defence and legal affairs approved a bill concerning the rules applicable to foreign nationals which provided that foreigners convicted of organising a political party on Romanian territory, or joining a political party in Romania,

should be liable to between 3 months' and 2 years' imprisonment or a fine. The Deputies also decided that the employment of foreigners by institutions whose activities have a bearing on national defence or security should be punishable by a term of imprisonment of between 6 months and 5 years.

What steps has the Commission taken, or does it intend to take, to urge Romania to honour its own commitments as a candidate for accession and refrain from adopting legislation incompatible with Union law? Has the Commission already expressed its opinion on this delicate matter, for example via its representative in Romania? If so, what if any was the Romanian authorities' response?

Answer given by Mr Verheugen on behalf of the Commission

(20 March 2000)

The draft law regarding the regime of aliens in Romania, which was adopted by the Senate on 10 September 1998, has not yet been adopted by the Chamber of Deputies. After the draft law was debated in the Chamber, it was reviewed and several amendments were introduced in the proposal. The legislation on the same subject which is in force at present is Law No 25/1969 on the regime of aliens.

The Honourable Member refers in the first part of his question to provisions in the draft law containing restrictions on the political activity of aliens residing in Romania. The Commission would refer to its answer to the Honourable Member's written question E-2624/99(1).

In the second part of his question the Honourable Member refers to provisions in the draft law containing prohibitions on the employment of foreigners in institutions with activities having a bearing on defence or national security.

As a candidate country, Romania has an obligation to implement the acquis communautaire and adapt its domestic legislation to it by the time of accession. Article 39 (ex-Article 48) of the EC Treaty provides that the principle of equal treatment and the prohibition of discrimination on grounds of nationality are also applicable to employment in the public sector. However, Article 39(4) leaves room for imposing certain restrictions. Member States may reserve certain posts for their own nationals but these must be concerned with the exercise of public authority or responsibility for safeguarding the general interests of the state or the local authorities.

The Defence Committee changed Article 2, paragraph 2, in the initial draft law in order to narrow the scope of the restrictions to public employment having an impact on public order or national security. However, there are also in the draft law restrictions for employment in the private sector. Article 39(2) of the draft law stipulates that foreigners may be employed by economic agents or institutions whose activities have an importance for defence or national security. This right can only be restricted in specific cases through government decisions. According to Article 39(3) of the EC Treaty, limitations on the free movement of workers can also be justified on grounds of public policy, public security or public health. These limitations are also applicable to civilian occupations.

According to the draft law as it stands now, breaches of the rules on the restrictions of political activities and on limitations of employment of foreigners in Article 2, paragraph 2, are punished with imprisonment between three months and two years or a fine. Infringements of Article 39 can be punished with imprisonment between six months and five years.

The provisions on the employment of foreigners in the present version of the draft law do not, on a first assessment, appear to be contrary to Community law. However, the Commission will continue its assessment and follow the evolution of the draft law closely.

(1) OJ C 280 E, 3.10.2000, p. 87.

(2) Article 40 in the proposal of the Defence Committee.