INTERIM REPORT FROM THE EUROPEAN COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism
Date: 2011-02-18
Institutions: European Commission
Subjects: EU control, Romania, cooperation policy, corruption, exchange of information, judicial reform, rule of law

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EUROPEAN COMMISSION 

Brussels, 18.2.2011 
COM(2011) 80 final 

INTERIM REPORT FROM THE EUROPEAN COMMISSION 
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

On Progress in Romania under the Co-operation and Verification Mechanism 

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INTERIM REPORT FROM THE EUROPEAN COMMISSION 
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

On Progress in Romania under the Co-operation and Verification Mechanism 

1. 

INTRODUCTION  

When Romania entered the EU on 1 January 2007, a Co-operation and Verification 
Mechanism  (hereafter  CVM)1  was  set  up  to  help  Romania  remedy  shortcomings  in 
the areas of judicial reform and the fight against corruption and to monitor progress 
in these areas through periodical reports. 

The  present  report  is  an  interim  report  providing  a  technical  update  on  significant 
developments which occurred during the last six months in Romania under the CVM. 
It  focuses  on  Romania's  response  to  the  Commission's  recommendations  and  does 
not contain a full assessment on progress achieved. The update is limited to measures 
that have either been completed or where their finalisation can be expected shortly. 

The  last  progress  report  adopted  by  the  Commission  on  20  July  2010  and  its 
recommendations  remain  the  point  of  reference  for  the  assessment  of  progress 
achieved against the benchmarks and the identification of the remaining challenges. 
The Commission will provide its next assessment in summer 2011. 

2. 

JUDICIAL  REFORM  AND  THE  FIGHT  AGAINST  CORRUPTION:  SUMMARY  OF 
DEVELOPMENTS  

Since  the  Commission's  last  report,  Romania  has  taken  several  important  steps  to 
improve the celerity of the judicial process by adopting and implementing the "Small 
Reform Law" (a procedural law to speed up the handling of cases) and by amending 
the Law on the Constitutional Court, as recommended by the Commission. Romania 
also continued preparations for the implementation of the new legislative framework 
in civil and criminal law by launching an impact assessment of the new codes and by 
advancing  on  implementing  legislation.  During  the  same  time,  Romania  also 
prepared  proposals  to  close  non-viable  courts  and  prosecutors’  offices  and  to 
reallocate  staff  from  these  locations.  In  addition,  Romania  prepared  proposals  to 
strengthen the recruitment and initial training of magistrates. 

During  the  last  six  months,  the  National  Anti-Corruption  Directorate  (DNA) 
maintained its convincing track record in investigating high level corruption. During 
this  period  an  increase  in  the  number  of  non-final  convictions  and  dissuasive 
sentences  could  be  observed  and  an  independent  impact  evaluation  of  the  last  two 
anti-corruption  strategies  was  launched.  However,  important  high-level  corruption 
cases have seen little movement in court since the Commission's last assessment. 

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Commission  Decision  2006/928/EC  of  13  December  2006  establishing  a  mechanism  for  cooperation 
and verification of progress in Romania to address specific benchmarks in the areas of judicial reform 
and the fight against corruption (OJ L 354, 14.12.2006, p. 56). 

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Following recommendations by the Commission, Romania adopted an improved law 
to secure the  functioning of the National Integrity Agency (ANI). However, during 
the same period, while the authorities continued to improve the legal framework and 
the  operation  of  the  justice  system,  Parliament  decided  on  significant  budget  cuts 
regarding  ANI in the  context of general budgetary constraints. The Parliament  also 
prevented  investigations  into  allegations  of  corruption  by  a  former  minister.  The 
elections  to  the  Superior  Council  of  the  Magistracy  were  overshadowed  by  legal 
challenges and led the Constitutional Court to annul the election of four members of 
the SCM. 

3. 

OUTLOOK 

Since the Commission's last assessment, Romania responded in a constructive way to 
recommendations by the Commission.  

In  order  to  consolidate  the  momentum  of  reform  which  has  been  re-invigorated, 
Romania should focus on the thorough preparation for the implementation of the new 
Codes,  and  should  also  commission  a  comprehensive  review  on  the  functioning  of 
the  judicial  system  in  order  to  support  the  implementation  of  the  further  necessary 
structural adjustments and investments that are needed to ensure the celerity, quality 
and  consistency  of  the  judicial  process.  The  entry  into  office  of  a  new  Superior 
Council of Magistracy provides an important opportunity for a close and constructive 
co-operation between the different political and judicial actors in this regard.  

Until the Commission's next assessment in summer 2011, Romania should focus in 
particular on the launch of an independent review of the judicial system, the reform 
of the disciplinary system for magistrates and on measures improving the celerity of 
high-level corruption trials and strengthening general anti-corruption policy.  

The Commission will continue to support Romania in this endeavour and provide its 
next in-depth assessment of progress by summer this year.  

4. 

UPDATE ON THE STATE OF PLAY 

Reform of the Judiciary 

Since the Commission's last assessment, Romania adopted the "Small Reform Law" 
in  order  to  improve  the  celerity  of  judicial  proceedings  and  advance  the 
implementation  of  certain  reforms  included  in  the  new  codes.  The  Small  Reform 
Law introduces the principle of opportunity which provides for greater possibilities 
for the prosecution not to pursue cases, for example where existing evidence does not 
warrant further investigation; it also introduces the possibility for the prosecution to 
take over reports submitted by the police in some minor cases. It simplifies judicial 
procedures and allows for a possibility to admit guilt and thus shorten the duration of 
a  trial.  The  Small  Reform  Law  also  streamlines  the  procedure  of  appeal  in  the 
interest of the law which is foreseen to remain the major means for legal unification. 

In the last six months, Romania has taken a number of structural measures to address 
the pressing capacity shortfalls of the judicial system. Further measures to ensure a 
redistribution  of  resources  will  be  required  once  the  impact  assessment  of  the  new 

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codes is available. Since the Commission's last report, Romania finalised a proposal 
to  close  twenty-four  courts  and  related  prosecution  offices,  which  were  either  not 
operational or had insufficient workload.2 In addition, Romania developed proposals 
to  strengthen  the  recruitment  and  training  of  magistrates.  However,  the  capacity  of 
the  National  Institute  of  Magistracy  has  not  yet  been  increased  in  line  with  the 
resourcing requirements of the magistracy and their budget for 2011 has been cut (as 
part  of  the  necessary  national  fiscal  consolidation).  Proposals  to  transfer  certain 
administrative  tasks  from  judges  to  auxiliary  personnel  and  to  introduce  court 
managers remain pending. 

Initial  considerations  have  taken  place  in  Romania  regarding  a  review  of  the 
functioning of the judicial system which has been recommended by the Commission; 
however it has not yet been launched. An independent assessment of the performance 
of  the  judicial  system  would  help  to  identify  the  measures  which  are  necessary  to 
enhance  the  efficiency  of  the  system.  A  recent  report  on  the  vulnerabilities  of  the 
Romanian judicial system prepared by a team of magistrates, lawyers, academics and 
civil society representatives provides a useful contribution to this work.  

Since  the  Commission's  last  report,  Romania  has  taken  steps  to  respond  to  the 
Commission's recommendations regarding the disciplinary system of the magistracy. 
Proposals have been prepared by the Superior Council of the Magistracy to classify 
the  gravity  of  disciplinary  offences,  to  increase  the  range  of  sanctions  and  to 
introduce a scale of appropriate penalties. Legislation is required to implement these 
proposals.  In  addition,  a  number  of  evaluations  of  the  Judicial  Inspection  and  its 
inspectors  have  been  undertaken,  some  of  which  are  foreseen  to  be  repeated 
periodically in the future.3 

Regarding the elections to the Superior Council of the Magistracy, the legality of the 
mandates  of  several  members  of  the  Council  has  been  contested  and  challenged  in 
court,  where  final  decisions  remain  pending.  The  decision  by  the  Constitutional 
Court in January to invalidate the elections for some members creates the possibility 
to ensure the new Council’s credibility. It will be important to ensure the functioning 
of the Council in the interim, pending new elections for the invalidated positions. 

A  recommendation  by  the  Commission  to  ensure  that  the  full  jurisprudence  of  the 
courts  is  published  in  a  user-friendly  and  easily  searchable  database  requires 
continued efforts. Further decisions have been published on the online jurisprudence 
portal, Jurindex, but at present the collection is limited to Court of Appeal judgments 
(and judgments of one Tribunal) for 2008, 2009 and the first two months of 2010.  

Romania's main challenge in the coming months regarding judicial reform will be to 
prepare  successfully  for  the  entry  into  force  of  the  four  new  codes.  The  codes 
introduce an entirely new legislative framework and procedures in civil and criminal 

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The  number  of  courts  proposed  for  closure  represents  an  increase  of  nine  on  the  number  of  courts 
earmarked in the summer, but is significantly less than was originally proposed by external experts in 
2005.  The  proposal  will  release  50  positions  of  judges  (of  which  38  are  currently  occupied)  and  47 
prosecutor positions (of which 38 are currently occupied) for reallocation.  
The  reviews  include:  an  activity  report  prepared  by  the  management  of  the  Judicial  Inspection  and 
covering the first six months of 2010; an evaluation report on each individual inspector; and an audit 
report  on  the  management  of  the  Judicial  Inspection,  undertaken  by  the  audit  unit  of  the  Superior 
Council of the Magistracy.  

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law which presents an important challenge given the existing shortcomings regarding 
capacity  and  consistency  of  the  judicial  process.  Romania  has  taken  an  important 
step in launching an impact assessment4 of the new codes with a view to evaluating 
implications regarding staff and the necessary legislative and structural adjustments. 
Work on the implementing legislation has advanced: draft implementing laws for the 
Civil  and  Criminal  Codes  have  been  submitted  to  Parliament5,  whilst  the 
implementing  laws  for  the  Procedure  Codes  are  being  drafted.  Once  the  Romanian 
authorities  receive  the  final  impact  assessment,  a  comprehensive  implementation 
plan  will  need  to  be  prepared  and  training  will  need  to  be  undertaken  to  ensure  a 
smooth and effective implementation.  

Fight against Corruption 

Since the Commission's last report, the National Anti-Corruption Directorate (DNA) 
has  continued  its  good  track  record  of  investigations  into  high-level  corruption, 
sending  to  trial  a  significant  number  of  defendants,  including  a  Member  of  the 
European  Parliament,  three  former  ministers,  two  former  secretaries  of  state  and  a 
number of magistrates.6 During the same period, Parliament voted against the search 
of  a  personal  computer  in  an  ongoing  investigation  into  alleged  corruption  by  a 
former  minister.  The  prosecution  will  therefore  have  to  use  all  other  available 
evidence in this case. In another case of alleged corruption against the same person, 
Parliament voted against allowing an investigation. In another ongoing investigation 
of alleged corruption against a Member of Parliament, Parliament did not endorse the 
request of the prosecution for preventive arrest.  

Data on court decisions for high-level corruption in the first three quarters of 2010 
indicate  an  increase  in  conviction  decisions  as  well  as  prison  sentences.  This  may 
indicate a trend towards more dissuasive sentences if confirmed over a longer period 
of  time.  A  proposal  by  the  High  Court  of  Cassation  and  Justice  to  monitor 
jurisprudence in high-level corruption cases shows a more active engagement of the 
Court  in  promoting  the  unification  of  jurisprudence  in  this  area.  However,  an 
initiative  by  a  number  of  judges  from  Bucharest  Court  of  Appeal  which  published 
detailed  sentencing  guidelines  including  for  corruption  cases  has  not  yet  been 
followed up by the High Court of Cassation and Justice.  

Romania  has  removed  an  important  cause  of  delay  in  high  level  corruption  trials 
through the adoption of amendments to the Law on the Constitutional Court. These 
amendments,  which  follow  recommendations  by  the  Commission,  eliminate  the 
suspension  of  trials  when  exceptions  of  unconstitutionality  are  raised.  The  first 
positive effects on specific cases have already been observed. Provisions in the Small 

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The consultants initiated work with an inception report approved in December 2010. The final Impact 
Assessment report is expected in April 2011.  
The implementing law for the Civil Code was approved by the Senate on 8 December and is currently 
before the Chamber of Deputies. The law implementing the Criminal Code is under discussion in the 
Senate.  
On 2 November DNA indicted a former Minister of Defence, a former State Secretary in the Ministry of 
Defence, and a current Member of the European Parliament. On 15 December DNA indicted a former 
Minister  of  Justice  (currently  a  Member  of  Parliament)  and  a  former  Minister  of  Communications, 
along with four other defendants. Thirteen magistrates had been sent to trial in the first three quarters of 
2010 compared to three in 2009. Eleven of the thirteen have been sent to trial since May in including a 
High Court judge and a Chief Prosecutor of a Prosecutors’ Office attached to a Court of Appeal. 

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Reform  Law  are  also  intended  to  assist,  in  particular  through  simplifying  judicial 
procedures,  eliminating  the  suspension  of  criminal  trials  when  illegality  exceptions 
are raised, and reducing the workload of the High Court.  

A  comprehensive  analysis  of  the  specific  delays  of  high-level  corruption  cases,  as 
recommended  by  the  Commission,  still  remains  to  be  realised.  A  number  of 
institutions  including  the  High  Court,  the  Judicial  Inspection,  the  DNA  and  the 
Ministry  of  Justice  have  to  varying  extents  reflected  on  the  issue.  These  initiatives 
provide a useful basis for reflection on future solutions. 

Romania  responded  swiftly  to  the  Commission's  recommendation  by  adopting  a 
revised law on the National Integrity Agency (ANI).7 The new law was adopted at a 
special session of the Romanian Parliament convened at the request of the President. 
The new law addresses the key points of concern of the Commission notably by re-
establishing  the  possibility  to  confiscate  unjustified  assets.  The  revised  law  also 
introduces  some  new  provisions  aimed  at  enhancing  the  effectiveness  of  the  legal 
framework.8 The efficiency of the new legal framework will need to be demonstrated 
through a new track record.  

In  December,  in  the  context  of  the  general  budgetary  constraints,  Parliament 
significantly  reduced  the  budget  of  ANI  for  2011.  This  budgetary  reduction  may 
impede the publication of declarations of assets and interests. This would constitute a 
setback  for  the  transparency  of  assets  and  the  effectiveness  of  ANI's  checks  which 
rely in part on public signals. 

DNA  prosecutors  carried  out  criminal  investigations  of  border  police  and  customs, 
which  led  to  a  large  scale  anti-corruption  operation  at  the  borders  in  February 
resulting  in  numerous  arrests.  It  is  very  important  that  the  human  resourcing  is 
provided for in respect of the vacant positions, while the proper judicial follow-up is 
taking place.  

The increase in the number of investigations and indictments for petty and medium-
level corruption at the local level has continued since the Commission's last report.9 
Most  of  the  cases  continue  to  result  from  cooperation  with  the  General  Directorate 
for  Anti-Corruption  of  the  Ministry  of  Administration  and  Interior  (DGA). 
Reportedly  measures  are  also  foreseen  to  strengthen  co-operation  between  the 
prosecution and the Fraud Investigation Service (FIS) of the Romanian Police. 

In  the  last  six  months,  Romania  has  launched  an  independent  evaluation  of 
Romania's national anti-corruption strategy in response to a recommendation by the 
Commission. An internal evaluation of the interim results of the strategy completed 
earlier  confirmed  another  recommendation  by  the  Commission  on  the  need  to 

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The new law, adopted by the Parliament on 24 August and promulgated by the President on 31 August, 
came into force on 6 September. 
One  example  is  the  introduction  of  a  requirement  upon  holders  of  public  office  to  declare  contracts 
funded from state, local and external funds that they benefit from directly or indirectly. ANI believes 
this will assist in bringing to light conflicts of interests. 
During the first nine months of 2010 local prosecutors’ offices indicted 406 defendants for corruption 
offences, compared to 193 during the equivalent period of 2009 and 115 during the equivalent period of 
2008. 

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strengthen  general  anti-corruption  policy  through  coordination  at  high-level.10  No 
concrete steps have as yet been taken in this respect. Various corruption prevention 
measures continued during the last six months.11 

Romania prepared a number of legal amendments to public procurement legislation 
in response to the Commission's recommendations in this area. As already indicated 
in  the  Commission's  last  report,  Romania  introduced  new  provisions  that  define 
conflict  of  interest  more  broadly  in  the  law  on  public  procurement.12  These 
provisions  cover  cases  where  persons  holding  executive  positions  in  a  tendering 
company  have  family  relationships  or  commercial  relations  with  persons  holding 
decision  making  positions  within  the  contracting  authority.  Further  modifications, 
streamlining  the  administrative  and  legal  remedy  system  are  designed  to  speed-up 
procurement.13  Procurement  contracts  may  now  be  signed  after  complaints  are 
rejected  by  the  administrative  complaints  body,  even  if  a  legal  appeal  is  launched. 
The  National  Authority  for  Regulating  and  Monitoring  Public  Procurement 
(ANRMAP) envisages concluding protocols for administrative cooperation in order 
to  access  to  databases  that  allow  identifying  possible  conflict  of  interest  situations. 
The concrete impact of these provisions must still be demonstrated in practice. 

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The  review  furthermore  identified  a  lack  of  national  and  unitary  approach  in  preventing  and  fighting 
corruption,  insufficient  monitoring  and  reporting  mechanisms  and  an  absence  of  impact  indicators 
which impedes evaluation of the strategy.  
Measures  include:  continued  work  to  implement  a  new  methodology  for  identifying  corruption  risks 
and vulnerabilities in the Ministry of Administration  and Interior; further proposals arising from anti-
corruption  debates  hosted  by  the  National  Integrity  Centre;  conferences  to  promote  best  practices  in 
public administration organised by the National Agency of Civil Servants; and proposals being devised 
to strengthen mechanisms for preventing and detecting corruption in health sector procurement.  
These provisions were added through Government Emergency Ordinance 76/2010, which was approved 
by Law 278/2010. 
These provisions are also included in Law 278/2010. 

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