REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Cooperation and Verification Mechanism
Date: 2012-07-18
Institutions: European Commission
Subjects: Romania, award of contract, corruption, judicial reform, rule of law

EUROPEAN COMMISSION 

Brussels, 18.7.2012  
COM(2012) 410 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

On Progress in Romania under the Cooperation and Verification Mechanism 

{SWD(2012) 231 final} 

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REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

On Progress in Romania under the Cooperation and Verification Mechanism 

I.  The  Cooperation  and  Verification  Mechanism:  Supporting  Romania  in  Justice 
Reform and the Fight against Corruption  

In the run-up to the accession of Romania to the EU in 2007, it was agreed that further work 
was  needed  in  key  areas  to  address  shortcomings  in  judicial  reform  and  in  the  fight  against 
corruption. This led to the establishment of a framework to support Romania and to monitor 
progress  in  these  areas,  the  Cooperation  and  Verification  Mechanism  (CVM).1  Benchmarks 
were  established  in  four  areas:  Judicial  reform,  integrity,  the  fight  against  high-level 
corruption, and the prevention and fight against corruption in the public sector. The Decision 
included  regular  reporting  from  the  Commission,  and  provided  that  the  mechanism  will 
continue until the objectives of the CVM are met  and all four benchmarks are satisfactorily 
fulfilled2.  

Five years after accession is an appropriate time to assess whether the objectives of the CVM 
have  been  fulfilled.  The  technical  report  accompanying  this  assessment  summarises  the  key 
developments of the past five years. This report takes stock of what has been achieved so far 
and  what  remains  to  be  accomplished.  It  covers  both  the  legislation  and  tools  which  are  in 
place, the elements of the legal framework which still need to be completed, implementation 
and also whether ownership is sufficiently embedded to maintain the direction of reform. In 
so  doing,  the  Commission  takes  into  account  the  sustainability  and  irreversibility  of  the 
reform process as the determining elements of its assessment. 

During  these  five  years  there  have  been  periods  of  progress  and  setbacks,  times  when  co-
operation has worked well and times when the mechanism has been resented and resisted. So 
this report recognises the overall progress made since accession.  

Nevertheless, this report is adopted at a time when important questions are raised with regard 
to respect for rule of law and the independence of the judiciary in Romania. Overall progress 
has to be assessed in the context of a wider social recognition of key principles such as the 
rule of law, and the independence of the judicial process as part of the checks and balances of 
a  well-functioning  democracy.  A  well  functioning, independent  judicial  system,  and  respect 
for democratic institutions are indispensible for mutual trust within the European Union, and 
for gaining the confidence of citizens and investors.  

The  Commission  considers  that  recent  steps  by  the  Romanian  Government  raise  serious 
concerns  about  the  respect  of  these  fundamental  principles.  These  steps  took  place  in  an 

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Conclusions  of  the  Council  of  Ministers,  17  October  2006  (13339/06);  Commission  Decision  of 
13/XII/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,  13 
December 2006 (C (2006) 6569 final) 
It also provided for the possibility of a safeguard mechanism, which has not had to be invoked. 

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overly polarised political system where mistrust between political entities and accusations are 
a  common  pattern;  however  this  political  context  cannot  explain  the  systematic  nature  of 
several  actions.  While  certain  actions  may  be  partly  explained  by  this  political  polarisation, 
they  raised  serious  doubts  about  the  commitment  to  the  respect  of  the  rule  of  law  or  the 
understanding  of  the  meaning  of  the  rule  of  law  in  a  pluralist  democratic  system.  Political 
challenges to judicial decisions, the undermining of the constitutional court, the overturning 
of  established  procedures  and  the  removal  of  key  checks  and  balances  have  called  into 
question  the  Government's  commitment  to  respect  the  rule  of  law  and  independent  judicial 
review.  The  Commission  is  in  particular  extremely  concerned  by  the  indications  of 
manipulations and pressure which affect institutions, members of the judiciary, and eventually 
have a serious impact on society as a whole. Whilst this report looks at the last five years as a 
whole, the current controversies pose a serious threat to the progress achieved so far and raise 
serious  questions  as  to  the  future  of  the  reforms  already  launched.  This  report  therefore 
includes specific recommendations to address the current situation and to help restore respect 
for principles which are cornerstones of European democracy.  

Today's European Union is highly interdependent. The rule of law is one of the fundamental 
values  of  the  EU  and  there  is  a  strong  common  interest  in  it  which  mirrors  the  interest  of 
Romanian  public  opinion  in  these  issues.3  Eurobarometer  polling  has  shown  that  93%  of 
Romanians consider corruption to be an important issue for their country, and 91% have the 
same  response  over  shortcomings  in  the  judicial  system.  The  same  poll  also  concluded  that 
76% of Romanians supported the EU helping to tackle these issues.4 

The  CVM  does  not  ask  Romania  to  achieve  higher  standards  than  exist  in  other  Member 
States. Its target is to help Romania achieve standards comparable to other Member States, an 
objective supported by 72% of Romanians.5 For the purpose of situating within this context 
what has been achieved by Romania since accession, the situation in other Member States is 
an important factor. The Commission uses in this report points of reference and comparative 
indicators  where  they  are  available.6  To  compare  progress  in  Romania  with  the  situation  in 
other  Member  States,  the  Commission  also  drew  upon  senior  experts  from  key  professions 
dealing with these issues.7 

Since  2007,  the  EU  budget  supported  the  fight  against  corruption  and  judicial  reform  in 
Romania through the Structural Funds with over €12 m. This includes projects in the areas of 
education,  health,  regional  affairs,  in  the  judicial  sector  and  with  the  National  Integrity 
Agency. Additional support was provided by pre-accession funds. At the same time, Member 
States have supported Romania with bilateral projects in all areas of judicial reform and the 
fight against corruption.8 

II. Analysis of progress under the CVM 2007-2012  

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The Conclusions of the European Council of 28 and 29 June include a commitment by the EU within the Compact for Growth 
and  Jobs  to  tackle  delays  in  judicial  systems  as  part  of  the  modernisation  of  public  administrations  (European  Council 
Conclusions 29 June 2012, page 8). 
Flash Eurobarometer poll conducted by the Commission in Romania in May 2012 (Flash Eurobarometer 351 "The Cooperation 
and Verification Mechanism for Bulgaria and Romania" at: http://ec.europa.eu/public_opinion/index_en.htm ). 
Flash Eurobarometer 351 
Points of reference include the work of the Council of Europe, the OECD and UN agencies. 
Experts  used  in  2012  included  senior  practitioners  from  France,  Germany,  the  United  Kingdom,  Ireland,  Spain,  Poland  and 
Slovenia. 
Technical report, page 48. 

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The Commission's overall assessment of progress since Romania's accession shows that many 
of the building blocks required are now in place, even though recent events have called into 
question the irreversibility of the reform process. The CVM has made a major contribution to 
a  transformative  process  in  Romania.  The  focus  has  therefore  shifted  to  ensuring  that  their 
implementation  delivers  the  results  required,  and  that  the  ownership  exists  to  maintain  the 
momentum of reform, including in challenging political circumstances.  

Since  2007,  Romania  has  created  or  has  under  way  the  basic  legal  framework  in  all  areas 
covered by the CVM. When completed, the introduction of the new codes should represent a 
substantial modernisation of the legal system. Other political decisions have also provided a 
solid  framework,  such  as  the  national  anti-corruption  strategy.  Many  important  institutions 
also contribute to this solid basis, including The National Anti-Corruption Directorate (DNA) 
and the National Integrity Agency (ANI). 

This  framework  has  been  carried  forward  in  many  ways.  For  example,  the  track  record  of 
DNA and ANI, the steps taken by the High Court to tackle key high-level corruption cases, 
and some examples of government bodies addressing corruption in their ranks are steps in the 
right  direction.  It  is  welcome  that  the  judicial  leadership  has  shown  its  commitment  to 
independence in the face of recent events. However, the implementation of this framework of 
rules  by  the  judiciary  and  administration  in  general  has  not  yet  met  the  objectives  of  the 
CVM.  In  some  cases,  implementation  has  just  started,  as  the  reforms  have  been  introduced 
recently. In other cases, implementation has met difficulties, often linked with ownership of 
the reforms by the authorities. Not all agencies of government can be considered today to be 
working together to the same ends.9 There are still obstacles to making progress on the fight 
against  corruption,  conflict  of  interest  and  public  procurement.  The  leadership  shown  in 
addressing  high-level  corruption  trials  at  the  High  Court  has  yet  to  be  reflected  in  courts  at 
other levels. 

It  is  also  the  case  that  in  some  important  areas,  changes  have  come  about  primarily  as  the 
result of external pressure. The CVM itself has been central to this process – and is recognised 
as  such  by  Romanian  public  opinion.10  It  has  helped  to  maintain  the  direction  of  reform  at 
moments of pressure and to encourage changes which require the courage to challenge vested 
interests.  The  need  for  external  pressure  raises  questions  about  the  sustainability  and 
irreversibility of reform, questions accentuated by current events. 

The  process  of  change  mapped  by  the  CVM  reports  has  not  been  an  even  trend.  Different 
governments  and  Parliaments  have  given  different  emphasis  to  these  issues.  The  issues 
concerned are important political issues and a degree of debate and difference is a normal part 
of the political process. Some institutions have become quickly operational; others have taken 
time  to  build  momentum.  The  process  whereby  attitudes  have  evolved  in  both  the 
administration and the judiciary is irregular as well as gradual.  

Ownership and implementation are therefore the key elements in the fulfilment of the CVM 
benchmarks.  They  determine  the  sustainability  and  irreversibility  of  reform.  They  are 
demonstrated through  the  actions,  results and decisions taken by those with the authority to 

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For example, the work of ANI would be much more effective if it enjoyed full cooperation from other government agencies and 
energetic follow-up by the judiciary. 
These conclusions are supported by public perception. 65% of respondents of a Flash Eurobarometer poll conducted in Romania 
believe that EU action through the CVM has had a positive impact in addressing shortcomings in the judicial system (59% share 
this view regarding corruption). At the same time, a large majority believes that the situation in these two areas has stayed the 
same or has deteriorated in the last five years. (Flash Eurobarometer 351).  

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influence the direction and speed of change. The forthcoming appointments of a new General 
Prosecutor and Chief Prosecutor of the DNA will thus be key indicators of the sustainability 
of reform. The Commission also urges the government to take the steps needed to remedy the 
damage done to reform in recent weeks. 

II.1 Judicial Reform 2007-2012 

Benchmark 1: Ensure a more transparent and efficient judicial process notably by enhancing 
the  capacity  and  accountability  of  the  Superior  Council  of  Magistracy.  Report  and  monitor 
the impact of the new civil and penal procedures codes 

Recent events concerning the independence of the judiciary and the rule of law 

Judicial independence remains an important issue for Romania. Since accession, the judiciary 
has  been  able  to  affirm  its  independence  gradually,  in  particular  through  the  successful 
investigation,  prosecution  and  trial  of  an  increasing  number  of  high-level  corruption  cases. 
This has lead to significant achievements at the level of prosecution and, since 2010, also at 
the  level  of  courts  as  described  under  chapter  II.2  in  this  report.  A  final  conviction  in  an 
emblematic high-level corruption cases in June and the actions of the High Court of Cassation 
and  Justice,  the  Superior  Council  of  the  Magistracy11  and  of  the  Constitutional  Court  in 
resisting political challenges to judicial independence and in affirming professional integrity 
in the aftermath of this verdict has marked a step change in this sense.  

However, the Commission is concerned by the recent pressure exercised by members of the 
Romanian  Government  and  senior  politicians  on  the  Constitutional  Court:  these  are 
unacceptable  interventions  against  an  independent  judicial  institution.  The  Government  and 
all political levels must respect the separation of powers. They must also strictly respect the 
independence of the judiciary. 

In  particular,  the  Commission  is  concerned  by  the  recent  limitation  of  competences  of  the 
Constitutional  Court  in  regard  to  parliamentary  decisions.  The  Romanian  authorities  must 
urgently  restore  these  competences  in  accordance  with  the  Romanian  Constitution.  The 
Commission has been informed by letter of 16 July from the Prime Minister of Romania that 
this requirement will be met. 

Judicial  independence  and  the  separation  of  powers  are  fundamental  building  blocks  of  a 
democratic  society.  In  the  coming  months  all  political  levels  in  Romania  will  need  to 
demonstrate  through  their  actions  their  commitment  to  these  principles  in  order  to  restore 
confidence. The Commission will closely monitor developments in this area. 

Main developments 2007-2012 

The legislative framework for the judicial system has been reformed with a view to updating 
its judicial system and to target it on today's priorities. When all the new codes are brought 
into force, Romania will have overhauled its criminal and civil legislation. In the interim, the 
Small  Reform  Law  was  an  example  of  practical,  pragmatic  legislation  addressing  real 
shortcomings.  Other  laws  have  put  in  place  important  steps  to  secure  higher  accountability 
and integrity for the judiciary. 

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In June, the SCM’s public stance to defend the independence of the judiciary in the light of public interventions in respect of one 
important high-level corruption case sent an important message.  

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The judiciary has evolved since 2007. There are many signs that judges and prosecutors have 
gained more professional confidence. For the most part, professionals subscribe to the concept 
of  judicial  reform  and  recognise  its  benefits.  The  engagement  for  reform  of  individual 
magistrates,  professional  associations  and  civil  society  has  increased  considerably  during 
recent years. There are concrete examples of good professional practice which deserve to be 
taken up as best practice elsewhere.  

Pulling  together  these  steps  to  draw  the  full  benefits  will  require  stronger  efforts  by  the 
judiciary, the executive and the political class alike. The key progress has been legislative so 
far, and with major pieces of legislation only recently adopted or not yet in force, and others 
still pending in Parliament, a determined strategy will be needed for the reforms to meet their 
potential  to  drive  change  on  the  ground.  Inconsistent  jurisprudence,  difficulties  with 
enforcement and inefficient judicial processes remain a widespread problem.12 The response 
of the judiciary to challenges to integrity and accountability has not been sufficient to rebuild 
public confidence.  

The  tools  now  exist  for  the  judicial  leadership  and  the  executive  to  consolidate  reform.  For 
this to be achieved, a more consistent effort and better managerial focus within the SCM will 
be  required,  as  well  as  a  new  level  of  cooperation  between  the  executive  and  the  judiciary, 
with  the  support  of  Parliament  and  of  civil  society.  Government  and  politicians  must  set  a 
clear  example:  any  pressure  exerted  on  courts  creates  distrust  between  branches  of 
government. If the SCM can offer leadership in the cause of reform, and receive the support 
of  the  executive  to  implement  change,  direct  benefits  in  areas  such  as  the  organisation  of 
courts  and  the  distribution  of  workload  could  be  felt  relatively  quickly.  The  results  of  two 
ongoing  World  Bank  projects  will  provide 
instruments  and  policy 
recommendations for the next steps.13 

important 

The legislative framework  

Since accession, Romania has pursued an ambitious legislative agenda. This has included new 
Civil  and  Criminal  Codes  and  the  accompanying  procedural  codes,  with  the  explicit  aim  of 
modernising the judicial process. International experience was drawn upon in support of these 
efforts. The adoption of the codes in 2009 and 2010 represented a major result on the part of 
the  Government,  the  Parliament  and  the  judiciary,  even  if  the  implementation  process  has 
been lengthy. So far, only the new Civil Code has entered into force. The new Civil Procedure 
Code will enter into force this autumn and the new Criminal and Criminal Procedure Codes 
are currently foreseen for entry into force next year. Though there have been concerns about 
whether  the  systems  are  in  place  to  effectively  implement  the  changes,  and  measures  to 
prepare for implementation will need to be intensified, these Codes represent a major attempt 
at  modernisation  and  if  properly  implemented,  could  bring  considerable  benefits  for  the 
efficiency, transparency and consistency of the judicial process. 

In parallel, Parliament has also passed a number of other important legislative measures. The 
"Small Reform Law" which entered into force in 2010 brought concrete improvements to the 

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Statistics of the ECHR show that Romania counts the second highest number of ECHR judgments among any EU Member State 
which are pending execution. A large number of these judgments concern difficulties with civil enforcement, the excessive length 
of  civil  proceedings  and  the  absence  of  an  effective  remedy  and  ineffective  criminal  investigations.  (Council  of  Europe: 
Supervision  of 
at: 
http://www.coe.int/t/dghl/monitoring/execution/Source/Publications/CM_annreport2011_en.pdf 
The  World  Bank  is  currently  carrying  out  a  Functional  Review  of  the  Romanian  judicial  system  financed  with  EU  funds.  A 
second project to improve the capacity to gather and process judicial data and to establish optimal workload indicators across the 
judicial system is currently being undertaken by consultants financed from a World Bank loan.. 

the  ECHR,  Annual  Report  2011 

and  Decisions  of 

the  Execution  of 

Judgements 

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consistency and efficiency of the judicial process. Legislation was also amended to strengthen 
the accountability of the judiciary and to reform appointments to the High Court of Cassation 
and  Justice.  Such  measures  provide  the  opportunity  to  address  public  concerns  about  the 
objectivity of judicial appointments and the disciplinary process in the judiciary: it will take a 
sequence of good examples to turn around the negative legacy of the past. 

Consistency of the Judicial Process 

The High Court of Cassation and Justice has the primary responsibility for the unification of 
jurisprudence. A number of important steps have been taken since 2007. The Small Reform 
Law amended the appeal in the interest of the law procedure, with a view to strengthening its 
efficiency.  The  new  procedure  codes  introduce  a  preliminary  ruling  mechanism  as  a  new 
instrument  for  legal  unification,  as  well  as  reforming  jurisdictional  arrangements  to  help 
unification.14  The  High  Court  has  also  taken  the  initiative  to  hold  structured  discussions  on 
issues  of  jurisprudence  with  appeal  courts  and  developed  sentencing  guidelines  for  certain 
corruption offences. Failure to respect the High Court’s rulings in appeals in the interest of the 
law,  as  well  decisions  of  the  Constitutional  Court,  has  now  become  a  potential  grounds  for 
disciplinary measures.15 

However,  these  mechanisms  have  not  yet  been  able  to  overcome  inconsistency  which  is  a 
major  frailty  of  the  Romanian  judicial  system.16  Part  of  the  problem  seems  to  lie  in 
insufficient awareness of the importance of legal unification among the magistracy, perhaps 
linked to an extreme interpretation of independence. The principle of "same penalty for same 
offence", and its role in dissuading crime, does not seem to be fully appreciated. Nor does its 
relevance  to  the  accountability  and  integrity  of  magistrates.  This  may  help  to  explain  why 
analysis shows that measures for legal unification are not well used by judges.17 At the same 
time, consistency of jurisprudence has not yet been made a priority by the SCM and by court 
presidents.  Even  where  judges  want  to  improve  consistency,  they  lack  the  tools  needed  to 
access jurisprudence of other courts. A full electronic publication of court decisions, including 
decisions of the High Court of Cassation and Justice, is not yet in place. Appeal courts publish 
some decisions, but do not apply uniform criteria for this purpose. The main judicial database 
(ECRIS) is limited to accessing court rulings of the same appeal court circumscription; judges 
cannot  compare  court  rulings  nationwide.18  An  alternative  system,  Jurindex,  is  not  being 
updated. 

Experts recommend a stronger emphasis on lodging appeals in the interest of the law and to 
encourage  consistent  practice  by  judges  through  a  full  publication  of  motivated  court 
decisions, regular case discussions in all courts and an active promotion of legal consistency 
by court presidents and the SCM. The judicial leadership could also put a higher premium on 
legal consistency in judicial promotions and appointments, give the Judicial Inspection a role 

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The  goal  of  the  new  preliminary  ruling  procedure  was  to  introduce  a  more  proactive  procedure  than  the  current  appeal  in  the 
interest of the law (see Technical Report pages 6 – 7)  
Non-compliance  with  the  rulings  of  the  Constitutional  Court  and  of  the  High  Court  of  Cassation  and  Justice’s  appeals  in  the 
interest  of  the  law  may  be  the  object  of  a  disciplinary  investigation  and  sanction  following  amendments  to  provisions  in  the 
judicial laws on the disciplinary responsibility of magistrates adopted in late 2011 and promulgated in early 2012.. 
Inconsistent  jurisprudence  is  frequently  reported  in  Romania  and  confirmed  by  stakeholders  such  as 
foreign  investors,  law  firms  and  professional  associations  of  magistrates.  Inconsistent  decisions  have 
been identified by experts in particular in sensitive cases involving high-level defendants and in public 
procurement cases. 
This  includes  disregard  for  the  jurisprudence  of  superior  courts  and  the  limited  usage  of  the  appeal  in  the  interest  of  the  law 
procedure. The number of appeals in the interest of the law decreased in 2011 compared to the years 2007-2009. 
with the exception of judges at the High Court of Cassation and Justice who can access all judgements included in the database. 

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in  the  analysis  of  inconsistent  jurisprudence,  extend  sentencing  guidelines  and  use  the 
National  Institute  of  the  Magistracy  to  make  consistency  a  major  theme  of  initial  and 
continuous training. 

Further  reform  of  the  High  Court  of  Cassation  and  Justice  could  also  help  consistency. 
Important progress has been made in this regard through the Small Reform Law and through 
the  new  Procedure  Codes.  The  reforms  brought  by  the  new  Procedure  Codes  must  be 
introduced  in  a  way  which  ensures  that  the  High  Court  is  not  inundated  with  abusive 
applications  and  that  only  those  cases  raising  important  legal  questions  are  admitted.  This 
requires an appropriate filter for second appeals and preliminary ruling requests. There may 
also be other tasks which could be transferred to other courts from the High Court, such as the 
competence to try cases in first instance and to rule on a number of internal judicial issues.19 
This would allow the High Court to concentrate on its prime role of legal unification, as is the 
case in most EU Member States. The High Court also needs to have the premises and staffing 
necessary for its tasks.20  

The organisation and efficiency of the judicial system 

Public administration in Romania has been measured by the World Bank and was found to be 
the least effective in the EU.21 The judicial system suffers from some of the same weaknesses. 
Despite  some  improvements,  the  overall  picture  is  of  a  lack  of  dynamism  in  addressing 
problems  which  have  a  real  impact  on  the  ability  of  the  judicial  system  to  dispense  justice, 
and to do so in a swift and consistent way. These problems include capacity constraints and 
workload  pressures  upon  judges  and  prosecutors,  which  result  in  a  large  measure  from 
imbalances in resourcing and acute variations in workload between geographic locations and 
jurisdictional levels. Other problems have included a high number of vacancies, the provision 
of  training  at  entry  to  the  profession,  and  shortcomings  in  the  structure  and  internal 
organisation of courts and prosecutors' offices. 

Efforts  have  been  made  to  address  these  issues.  These  have  included  periodic  recruitment 
competitions,  the  streamlining  of  some  procedures,22  and  decisions  to  strengthen  the  initial 
training capacity at the National Institute of the Magistracy. In 2011, a small step was taken 
towards  rationalisation  by  closing  nine  redundant  courts  and  three  courts  with  minimum 
activity, as well as their associated prosecutors’ offices.  

However,  the  impact  of  these  measures  remains  limited.  Key  efficiency  indicators  such  as 
workload disparity and vacancy rates have not improved since 2007.23 Resource pressures and 
a conflict between the executive and the judiciary in 2009 slowed down reforms and led to a 
large number of retirements at a time when caseload was rising steadily.  

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The High Court tries a variety of offences in first instance, where the offence is committed by certain qualities of defendants. It 
also  rules  on  internal  judicial  matters  such  as  the  requests  of  parties  to  transfer  cases  to  other  courts  or  of  conflicts  of 
jurisprudence between courts.  
Logistical  reasons  have  been  given  to  explain  the  fact  that  the  provisions  on  the  preliminary  ruling  in  civil  law  in  the  Civil 
Procedure Code come into force four months after the rest of the Code. 
World Bank Governance Indicators 2011 
The Small Reform Law notably allowed for the prosecution to take-over the motivations of the police in deciding not to open an 
investigation  in  certain  simple  cases,  granted  the  prosecution  greater  possibilities  not  to  pursue  cases  where  existing  evidence 
does not warrant further investigation, and reduced legal remedies for minor cases. 
Romania is regularly sentenced by the ECHR for infringements of procedural rights due to excessive judicial delays. Delays in 
the  publication  of  court  motivations  above  the  legal  limit  of  30  days  are  frequent.  Reliable  case  retention  data  is  so  far  not 
available and should be delivered by a World Bank study in early 2013. 

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The judicial system does not possess and has not developed effective performance indicators 
to  inform  total  resource  needs  and  resource  allocations  within  the  judicial  system.  Romania 
has recently recognised these weaknesses and they will now be addressed by a project funded 
by the World Bank which will prepare and pilot revised case and workload indicators by early 
2013.  

Cooperation on human resource policy for the judiciary between the SCM, the executive and 
the leadership of the prosecution has seen continuous difficulties.24 Legislation is still pending 
to introduce the function of court managers and redefine the role of court clerks, a measure 
with  considerable  potential  to  reduce  the  workload  of  magistrates.  Improvements  to  the 
capacity of the National Institute of the Magistracy and the introduction of equal recruitment 
standards  for  different  categories  of  candidates  have  only  recently  been  made,  too  late  to 
properly prepare for the implementation of the new codes. So far, a joint implementation plan 
for the new codes has not been agreed.25 

Pressures  on  public  finances  might  have  been  expected  to  drive  efficiency  gains.  But  this 
effect is yet to be seen. Reasons for this include a lack of direction on managing the judiciary 
in the SCM and disagreement between the judiciary and government. The SCM has not been 
able  to  put  together  a  human  resources  strategy  to  change  structures  and  systems,  focusing 
instead on requesting more staff and resources. Parliament has also contributed to this inertia, 
watering down proposals to restructure the court system.26 New legislation has been criticised 
for failing to take into account the risk of provoking a spate of new cases before the courts.  

Judicial practice 

Judicial  practice  still  shows  significant  weaknesses,  illustrated  in  the  assessment  of  judicial 
practice by courts in cases of high-level corruption. Some of these weaknesses are structural: 
the Romanian legal system has features which make it vulnerable to abuse, such as the fact 
that prescription periods are not ended or suspended at the moment of an indictment. This is 
often exacerbated by a lax handling of court process which appears overbalanced in favour of 
defendants.27 Experts have identified these weaknesses in the handling of trials as particularly 
significant in comparison to practice in other Member States. The judiciary has also found it 
difficult  to  bring  complex  financial  cases  to  successful  conclusion  in  court.  This  relates  in 
particular to cases involving public procurement - public procurement cases are an exception 
to the general positive trend regarding high-level corruption cases in court (see below). Such 
cases  require  particular  skills  in  prosecutors  and  judges,  fostered  through  training, 
specialisation and external expertise. In addition, although foreseen by the law, the budget for 
court experts is in practice rarely available, so that defendants often pay for expertise called 

24

25

26

27

Responsibilities in the management of the human resources of the judiciary are shared: the Superior Council of the Magistracy 
has management responsibility for recruitment, career progression, training and disciplinary action. The Minister of Justice holds 
budgetary  responsibility  and  legal  initiative.  The  General  Prosecutor  is  responsible  for  the  results  of  the  prosecution,  but  all 
matters impacting on the career of a prosecutor are decided by the Council. 
Current  recruitment  capacities  cannot  deliver  the  number  of  new  recruits  in  time  and  of  adequate  quality  and  preparedness  as 
estimated as required by an impact study carried out for the new codes. 
This concerns notably the proposals of the Minister of Justice and the General Prosecutor to close small courts and prosecutors’ 
offices and to redistribute the posts to areas in most need. 
The Commission's assessment on these points can be found on pages 13-14 in the Technical Update SEC(2011)968 published on 
20  July  2011.  It  includes  references  to  leniency  in  addressing  postponement  requests  by  defendants,  weaknesses  in  the 
administration of evidence and in handling procedural irregularities, and organisational issues. 

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for by court, in addition to their paying for their own expertise.28 This raises issues about the 
independence and impartiality of the supposedly independent court-appointed experts. 

An example of how proactive leadership can make a difference has been seen in the change in 
approach  of  the  High  Court  of  Cassation  and  Justice  since  the  appointment  of  new 
management  in  2010.29  It  can  now  offer  best  practice  to  other  courts  in  areas  such  as  case 
management,  taking  into  account  the  risk  of  reaching  prescription  periods,  and  sending  a 
message  that  the  court  will  resist  spurious  attempts  to  delay  proceedings.  Maintaining  and 
extending these achievements will be important for progress in judicial reform overall. 

Accountability 

At  the  end  of  2011,  Romania  strengthened  the  legal  basis  for  judicial  accountability. 
Parliament  passed  amendments  introducing  new  disciplinary  offences  and  strengthening 
existing  sanctions;  they  extended  the  role  of  the  Minister  of  Justice  and  of  the  General 
Prosecutor  in  the  course  of  disciplinary  proceedings  and  increased  the  independence  of  the 
Judicial  Inspection.30  The  judicial  inspectorate  now  has  the  opportunity  to  refocus  on  more 
targeted, swift and pro-active disciplinary investigations, and to develop a stronger advisory 
capacity  within  the  inspectorate  for  shortcomings  of  judicial  organisation,  procedures  and 
practice. The SCM should further utilise this potential by asking the inspectorate to undertake 
systematic monitoring of key aspects of judicial practice, legal unification, and the adoption 
by court presidents of best practice in management.31 It will also be important to use the new 
rights  in  full  respect  for  the  independence  of  magistrates,  to  dispel  the  judiciary's  concerns 
that the new law could be abused.  

The  most  important  impact  of  the  law  will  come  if  it  is  seen  to  be  used  to  provide  clear, 
consistent and dissuasive sanctions. The reputation of the judiciary, and of the SCM's ability 
to police it, has been damaged by a series of cases of wrongdoing where the response of the 
judicial leadership has seemed weak and timid.32 In many Member States, there would be an 
expectation  that  those  in  positions  of  public  authority  accept  that  they  must  withdraw  from 
their  duties  if  needed,  to  protect  the  reputation  of  the  public  body  concerned.  The  fact  that 
judges  under  severe  public  criticism  have  continued  to  sit  in  court  while  investigations 
proceed has damaged the reputation of the courts. Clear rules should be established, such as 
the immediate suspension of magistrates under investigation for serious crimes such as high-
level  corruption,  in  order  to  protect  both  the  individual  magistrate  and  the  judiciary  as  a 
whole.33 This could be included in the integrity strategy of the SCM.  

28

29

30

31

32

33

Technical  Update  SEC(2011)968  of  20  July  2011,  page  14.  Since  the  Commission's  last  annual  report,  the  High  Court  of 
Cassation and Justice has received a special budget for court experts. 
Examples of important innovations include the introduction of sentencing guidelines for corruption offences and steps to improve 
the celerity of high level corruption trials. However, best practices applied in these discrete areas have not yet been mainstreamed.  
These legal amendments will allow the Minister of Justice and the General Prosecutor to initiate disciplinary action, through the 
Judicial  Inspection.  The  Judicial  Inspection  now  has  a  stronger  mandate  to  look  into  judicial  practice  and  may  also  appeal 
disciplinary sanctions imposed by the Superior Council of the Magistracy. 
The Judicial Inspection delivered three first reports in this sense at the end of 2011 and in the beginning of 2012: two thematic 
reports on important case delays and on celerity of high-level corruption cases and a report on management practice at the High 
Court of Cassation and Justice. 
The Commission reported on such cases in February 2012 (COM(2012)56final, page 3) 
The Commission reported in February 2012 on cases of judges at the High Court of Cassation and Justice who continue to sit in 
court  while  under  investigation  for  high-level  corruption.  Other  judges  escaped  disciplinary  responsibility  through  retirement 
(COM(2012)56 final, page 3). However, the recent SCM response to the launch of an investigation into one of their own SCM 
members has shown a more proactive approach to address threats to the reputation of the judiciary. 

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Romania  also  improved  the  appointment  procedures  to  the  High  Court  of  Cassation  and 
Justice at the end of 2011 by adopting more transparent and objective procedures which allow 
for a more comprehensive and objective independent assessment  of the  merit of  candidates. 
This  represents  an  important  step  in  improving  the  accountability  of  the  High  Court  of 
Cassation and Justice. 

II.2  Fight against Corruption 2007-2012  

Benchmark  2:  Establish,  as  foreseen,  an  integrity  agency  with  responsibilities  for  verifying 
assets,  incompatibilities  and  potential  conflicts  of  interest,  and  for  issuing  mandatory 
decisions on the basis of which dissuasive sanctions can be taken 

Benchmark  3:  Building  on  progress  already  made,  continue  to  conduct  professional,  non- 
partisan investigations into allegations of high- level corruption 

Benchmark  4:  Take  further  measures  to  prevent  and  fight  against  corruption,  in  particular 
within the local government 

Fighting corruption and promoting integrity is a challenging task which needs the engagement 
of  all  powers  of  the  state,  and  needs  to  be  driven  top  down,  so  that  it  percolates  through 
society as a whole. A key starting point is the ability of the Romanian judicial system and of 
the  Romanian  administration  to  apply  the  rule  of  law.  Since  accession,  Romania  has  made 
important  progress  in  the  prosecution  and  trial  of  high-level  corruption  cases.  The  National 
Anti Corruption Directorate (DNA) has proved an energetic and impartial prosecutor of these 
cases.  Romania  has  also  been  able  to  establish  a  system  to  detect  and  sanction  conflict  of 
interest,  incompatibilities  and  unjustified  assets.  The  National  Integrity  Agency  (ANI)  is  an 
institution prepared to pursue its mandate with conviction. Recent action to accelerate high-
level  corruption  trials  in  the  High  Court  has  started  to  redress  one  of  the  major  problems 
limiting dissuasive action against corruption. Stronger legislation to promote integrity within 
the judiciary itself, and a law introducing extended confiscation of criminal assets, has been 
adopted.  The  new  national  anti-corruption  strategy  offers  an  important  focus  to  drive  anti-
corruption work towards best practice: it now needs to be implemented as designed and given 
sufficient  time  to  prove  its  effectiveness.  These  are  significant  steps  towards  meeting  the 
objectives of the CVM. However, in the light of current events, preserving the progress made, 
maintaining their momentum and ensuring institutional stability are the first building blocks 
in demonstrating sustainability. 

These steps have come in a climate where the vast majority of Romanians see corruption as a 
major  problem.34  They  have  not  yet  convinced  Romanians  that  the  situation  is  improving; 
with  most  considering  that  the  situation  has  deteriorated.35  Public  concerns  will  only  be 
dispelled  when  objective  and  final  sentences  are  reached  in  the  most  important  high-level 
corruption trials and when best practice in the conduct of trials is seen to be the norm. Too 
few  cases  of  conflict  of  interest  are  pursued,  in  particular  in  public  procurement,  and  even 
when  pursued  in  court,  sanctions  in  this  area  are  in  law  not  dissuasive.  A  convincing  track 
record of confiscated unjustified assets has not yet been achieved. Turning the new national 

34

35

According to a Special Eurobarometer of February 2012, 96% of Romanians, a slightly higher percentage than in 2007 considered 
corruption  a  major  problem  (Special  Eurobarometer  374  at:  http://ec.europa.eu/public_opinion/index_en.htm)  Since  2007, 
Romania has lost 6 places in the TI corruption perception index with the decline of their perception rating. The Freedom House 
rating remained unchanged. 
According to a Eurobarometer of February 2012, 67% of Romanians consider that corruption had increased in the last three years 

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anti-corruption strategy into a tool to mainstream anti-corruption work across all institutions 
will be an important test of implementation.  

In  addition,  in  spite  of  their  significant  achievements,  the  authority  of  these  anti-corruption 
institutions  has  been  put  in  question.  The  legal  basis  for  the  work  of  the  National  Anti-
Corruption Directorate (DNA), the prosecution and the National Integrity Agency (ANI) has 
been  challenged  repeatedly  since  2007;  some  of  these  challenges  are  still  pending.  The 
forthcoming appointments to the posts of General Prosecutor, Chief Prosecutor of DNA and 
for  other  senior  appointments  within  the  prosecution  are  an  opportunity  to  show  that  the 
political  and  judicial  leadership  is  fully  supportive  of  a  strong  and  independent  pursuit  of 
corruption. This calls for a transparent and objective appointment process within the existing 
legal  framework,  through  an  open  competition  using  clear  criteria,  targeting  the  strongest 
possible leadership and with the goal of continuity in the functioning of these institutions. The 
efficient conduct of a number of high-level corruption cases which have reached final stage in 
court  will  test  the  Romanian  judiciary's  ability  to  continue  to  affirm  its  independence  and 
apply the rule of law. 

High-Level Corruption  

The performance of the National Anti-Corruption Directorate (DNA) in the investigation and 
prosecution  of  high-level  corruption  cases  can  be  considered  one  of  the  most  significant 
advances  made  in  Romania  since  accession.  DNA  has  been  able  to  deliver  a  constantly 
increasing number of indictments year by year, with investigations carried out swiftly and in a 
pro-active way. Since 2007, cases at the highest levels of political life and within the judiciary 
have been raised by DNA against people from all major political parties.36  

The  performance  of  DNA  has  led  to  a  consequential  increase  in  court  decisions  and 
convictions in high-level corruption cases, in particular since 2010.37 However, the efficiency 
of  court  proceedings  and  the  consistency  and  dissuasiveness  of  court  judgments  in  cases  of 
high-level  corruption  have  not  matched  the  progress  in  the  prosecution.  Since  2007,  high-
level  corruption  cases  have  suffered  significant  delays  in  court.  Causes  have  included 
weaknesses in legislation and shortfalls in capacity. Shortcomings in judicial practice detailed 
in the previous section of this report have been particularly evident in high-level corruption 
cases, with excessive room given by judges to defendants' attempts to protract and frustrate 
court proceedings – including when cases are nearing prescription periods.38 

Some  causes  of  delay  have  been  removed:  the  Small  Reform  Law  and  amendments  to  the 
Law  on  the  Constitutional  Court  introduced  important  changes  to  accelerate  trials  by 
removing  the  suspensive  effects  of  exceptions  of  unconstitutionality  and  illegality  raised  by 
defendants. An interpretative ruling of the High Court has also "stopped the clock" for periods 

36

37

38

DNA  indicted  167  cases  against  415  defendants  in  2007  and  233  cases  against  1091  defendants  in  2011.  About  60%  of  all 
investigations take less than 6 months. Since 2007, DNA has indicted a former Prime Minister, a former deputy Prime Minister, a 
number of former ministers and Members of Parliament, numerous prefects, mayors, county councillors and heads of state-owned 
enterprises. In 2011, DNA indicted two Members of Parliament and one influential mayor of the then governing coalition and one 
MP of the opposition at the time. 
Non-final  decisions  were  reached  against  199  defendants  in  2007  and  against  879  defendants  in  2011;  final  decisions  were 
reached against 109 defendants in 2007 and against 158 defendants in 2011. 
The  possibility  of  prescription  in  Romania  does  not  end  when  investigations  or  court  proceedings  start,  as  in  many  other 
jurisdictions. 

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during  which  a  trial  was  previously  suspended  pending  a  ruling  on  an  exception  of 
unconstitutionality.39  

Nevertheless,  a  number  of  high-level  corruption  cases  were  lost  or  partially  lost  to 
prescription  in  early  2011.40  In  mid-2011,  it  became  clear  that  a  number  of  important  high-
level corruption cases – cases which had been delayed for years for various reasons – looked 
likely to reach their prescription periods. In line with the Commission's recommendations,41 
the new leadership of the High Court of Cassation and Justice promoted best practice through 
a more efficient and rigorous management of trials. These measures led to a number of first 
instance  decisions  in  important  cases  from  late  2011,  as  well  as  the  first  final  corruption 
convictions  with  imprisonment  pronounced  against  a  former  Prime  Minister,  a  former 
Minister and against a current Member of Parliament.42  

A  further  concern  in  Commission  reports  has  been  the  consistency  and  dissuasiveness  of 
sentences in high-level corruption cases.43 A joint study of the judiciary and the Ministry of 
Justice  recognised  this  issue  in  2009  and  developed  corrective  action  which  led  to  certain 
improvements. In the absence of action by the judicial leadership, a group of judges from the 
Bucharest  Court  of  Appeal  drafted  sentencing  guidelines  to  improve  consistency  for 
corruption offences in 2010. These guidelines later inspired the High Court of Cassation and 
Justice's  new  management  to  draft  and  adopt  its  own  sentencing  guidelines  for  certain 
corruption offences in 2011.  

These  examples  show  that  the  Romanian  judiciary  can  react  to  objective  shortcomings  in  a 
pragmatic  way.  The  sentencing  guidelines  have  created  a  basis,  if  applied  and  expanded  to 
cover  other  offences,  for  more  consistency  and  predictability  in  sentencing  of  high-level 
corruption  cases.  The  measures  taken  by  the  High  Court  regarding  case  management  and 
judicial practice represent an important recognition that the courts have a responsibility to see 
that justice is served, and can lead, if they are sustained, to a series of final decisions in cases 
involving senior politicians in the course of this year. The first of these decisions was reached 
last  month,  with  the  final  decision  of  a  trial  involving  a  former  Prime  Minister  providing  a 
demonstration that the High Court is beginning to deliver decisions even against the highest 
ranking and politically influential defendants. 

However, these cases of best practice have not been actively mainstreamed and there is little 
evidence that they are being adopted in other courts. Despite the visible improvements at the 
High Court, at other courts many other high-level corruption cases involving local dignitaries 
such as prefects, presidents of county councils or mayors continue to experience questionable 
delays and interruptions. It is important to note that cases involving corruption and fraud in 
public procurement see particularly slow progress in court. An effort will be required to assess 
the  reasons  for  these  significant  delays  and  to  improve  the  availability  of  expertise  and 
specific  knowledge  to  judges.44  Most  sentences  in  high-level  corruption  cases  are  still 
suspended.  Very  few  final  sentences  of  imprisonment  have  so  far  been  pronounced  in 

39

40

41

42

43

44

This was achieved by excluding from the time period in calculating the date of prescription, periods of time during which a trial 
was suspended pending the ruling of the Constitutional Court on an unconstitutionality exception. 
See Technical Report page 29.  
The Commission’s report of 20 July 2011, COM(2011) 460 final, recommended that Romania “take urgent measures to improve 
judicial  practice  and  case  management  and  accelerate  important  high-level  corruption  cases  to  avoid  reaching  statute  barred 
periods in all cases”. The same report further recommended that Romania “continue the reform of the High Court of Cassation 
and Justice in order to strengthen its cassation role and to increase its capacity to deal with high-level corruption cases”.  
See Technical Report, page 25.  
See for example, the Commission’s assessment on page 15 in the Technical Update SEC(2011)968 published on 20 July 2011.  
Out of 43 indictments registered by DNA in courts since 2006, only two final decisions were reached. 

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important  cases  involving  senior  politicians45.  This  has  negative  implications  for  the 
dissuasiveness of the system. 

An effective fight against high-level corruption requires respect for judicial action and the full 
support  by  the  political  class  to  investigations  by  the  judiciary.  The  adoption  of  an  ethical 
code in 2011 by the then governing party can be considered a significant step. As a result of 
this  code,  the  same  party  excluded  an  influential  mayor  when  indicted  for  high-level 
corruption.46  

By  virtue  of  the  Romanian  Constitution,  as  interpreted  through  the  jurisprudence  of  the 
Constitutional  Court,  Parliamentary  approval  is  required  to  authorise  the  arrest  or  search  of 
parliamentarians,  and  is  also  required  to  approve  the  opening  of  criminal  investigations 
against  parliamentarians  who  are  current  or  former  Ministers.  Refusal  of  the  Parliament  to 
allow the opening of criminal investigations in such cases generates a de facto immunity from 
criminal investigation and in turn blocks the course of justice. Since 2007 a number of MPs, 
including  a  former  Prime  Minister,  have  been  shielded  from  criminal  investigation  by  the 
Parliament’s  refusals  to  allow  the  opening  of  criminal  investigations.47  The  fact  that 
Parliament does not motivate refusals to allow the opening of criminal investigations makes it 
difficult to establish the objectivity of decisions.48 In addition, the fact that parliamentarians 
can still sit whilst also convicted of serious offences like corruption damages the reputation of 
Parliament – many parliamentary systems have the practice of suspending parliamentarians at 
indictment in such cases, and exclusion on conviction.49  

In  the  recent  establishment  of  the  new  government  there  were  contradictory  signals.  The 
nomination and indeed appointment of Ministers with final or pending court rulings against 
them  led  to  understandable  controversy  and  indicated  an  unwillingness  to  accept  and  to 
understand that the rule of law is a fundamental principle.50 This shows that there is still some 
way to go in terms of setting high standards in high office. 

Integrity  

On accession, Romania agreed to put in place a legal and institutional framework to prevent 
and  sanction  corruption  by  addressing  incompatibilities,  conflict  of  interest  and  unjustified 
wealth.  The  National  Integrity  Agency  (ANI)  verifies  situations  of  conflict  of  interest  and 
incompatibility and identifies potential unjustified wealth among public officials and elected 
politicians. Its findings or referrals can be appealed to or confirmed by the Courts, or followed 
up by other judicial or administrative bodies.  

Set up in 2007, ANI swiftly became operational and put in place an efficient administration 
and  investigation  methodology.  It  established  centralised,  electronic  public  access  to  all 
declarations  of  assets  and  interests,  an  important  contribution  to  transparency.  With  support 
from  both  the  national  budget  and  EU  funds,  it  set  up  a  computerised  case  management 

45 

46

47

48

49

50

Data  since  2007  shows  that  about  60%  of  sentences  are  set  by  courts  at  the  legal  minimum  or  below.  Though  the  share  of 
suspended  sentences  for  imprisonment  decreased  from  75%  (2007-2009)  to  60%  in  2011,  suspended  sentences  are  still 
predominant, particularly in important cases. All three current or former Members of Parliament who received final sentences in 
2011 three received suspended sentences. 
This  is  not  yet  standard  practice:  the  local  elections  in  June  included  several  mayoral  and  county  council  president  candidates 
under arrest, criminal investigation or trial for corruption, a number of whom were elected.  
See Technical Report pages 26 – 27. 
See Technical Report page 27.  
Three Members of Parliament who have been convicted for high-level corruption by final decision continue to sit in Parliament. 
These rulings followed appeals to court against ANI findings on incompatibility. 

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system and cooperation agreements with a variety of administrative and judicial authorities. 
Today,  ANI  has  evolved  into  an  essential  component  of  the  anti-corruption  institutional 
framework and can demonstrate significant results.51  

However,  ANI's  progress  has  been  held  up  by  a  series  of  challenges.  ANI's  legal  base  was 
declared unconstitutional in 2010, putting in doubt ANI's core power to seek the confiscation 
of  unjustified  assets.52  The  debate  on  how  to  amend  ANI's  legal  basis  revealed  that  the 
political will to effectively tackle integrity and to fulfil accession commitments was shallow. 
Representatives  from  all  major  political  parties  in  Parliament  re-opened  the  issue  of  ANI's 
existence. Parliament has also failed to implement decisions on incompatibility and conflict of 
interest.53 

ANI's weakened legal base makes it more difficult for ANI's work to bring results and is still 
the  subject  of  constitutional  challenge,  although  two  complaints  were  rejected  by  the 
Constitutional Court in June.54 The new wealth investigation commissions – established as an 
extra  stage  between  ANI  and  courts  for  cases  where  ANI  suggests  the  confiscation  of 
unjustified assets – seem to have made the task of pursuing unjustified wealth more difficult. 
The  commissions  add  an  extra  layer  of  jurisdiction  but  offer  less  transparency  and  fewer 
rights  for  the  parties.  Despite  efforts  to  bring  the  key  players  together  in  seminars,  their 
procedures  have  not  been  fully  unified  and  weaknesses  have  appeared  concerning  the 
handling  of  evidence.  So  far  not  a  single  case  processed  by  the  wealth  investigation 
commissions since their re-establishment in 2010 has been finally determined by court. The 
legal  framework  also  hampers  the  work  to  address  administrative  conflicts  of  interest. 
Separate legal processes are required first to determine any appeals lodged to ANI’s finding 
of  conflict  of  interest,  and  subsequently  to  cancel  legal  acts  such  as  public  procurement 
contracts concluded in a situation of conflict of interest.55 

The effectiveness of the Romanian integrity system also suffers from slow court proceedings, 
inconsistent  jurisprudence  and  an  insufficient  cooperation  between  other  administrative 
authorities, the judiciary and ANI. Judicial procedures for cases under all three attributions of 
ANI have been particularly slow. Altogether, courts have so far finally confirmed only four 
cases of unjustified wealth, and all these cases pre-date the new law (one dates from 2005). 
Simple cases of incompatibility can take several years to be finally determined by courts. This 
has  led  to  cases  where  sanctions  could  not  be  applied,  as  mandates  had  already  expired. 
Inconsistent  jurisprudence  has  also  been  a  problem  in  cases  raised  by  ANI,  but  prompt 
corrective  action  has  not  yet  been  taken  by  the  judiciary.56  Although  ANI  has  established 
cooperation  agreements  with  a  number  of  other  administrative  institutions  and  with  the 
prosecution, this cooperation has not led to significant results so far, with the exception of a 
productive  co-operation  with  DNA.  Very  few  signals  have  reached  ANI  from  other 

51

52

53

54

55

56

See Technical Report pages 18 – 19.  
The power of ANI to suggest the forfeiture of unjustified assets to court was considered to breach the constitutional principles of 
the separation of powers and the presumption of, and prohibition from confiscating, legally acquired wealth. 
The  legal  committee  of  the  Chamber  of  Deputies  proposed  that  no  action  should  be  taken  against  two  MPs  with  definitive 
findings of incompatibility or conflict of interest against their names. Final decisions of the Parliament in respect of both cases are 
still pending. 
The amended law also forced ANI to abandon a significant number of cases investigated at that moment due to the introduction of 
prescription periods. The vast majority of these cases concerned elected politicians 
So far, an administrative conflict of interest has been confirmed in only two cases; in neither case have the underlying contracts 
been cancelled. 
Recent  cases  in  public  discussion  include  two  Members  of  Parliament  who  are  also  University  Rectors.  In  one  case  an 
incompatibility was identified, in the second case, the same court denied an incompatibility. A similar episode has been repeated 
at another Court of Appeal. These cases are now pending appeal at the High Court of Cassation and Justice. 

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institutions and follow-up to ANI's referrals by other institutions has been lacking, leading to 
only one indictment and one additional tax demand.57 

Nevertheless,  ANI  has  proved  increasingly  able  to  focus  on  important  and  complex  cases 
since 2010. A screening exercise to identify conflict of interest among local councillors has 
led  to  a  significant  number  of  potential  cases  –  the  extent  to  which  these  cases  will  be 
followed up by the prosecution and the courts will be an important test.58 A similar exercise 
has  been  launched  with  authorities  managing  EU  funds.  These  are  welcome  developments. 
The investigations of ANI should in future be even more guided by risk assessments and by 
focusing on vulnerable areas. This may have implications in terms of increasing the staffing 
resources of ANI.59 

Despite the weaknesses in judicial follow-up, a significant number of incompatibility findings 
have become definitive and led to resignations and disciplinary sanctions.60 Results are more 
disappointing  regarding  the  follow  up  to  ANI’s  cases  concerning  the  confiscation  of 
unjustified  assets  and  conflict  of  interest.  Improvements  to  ANI's  legal  basis  may  help  to 
address this issue,61 but the political, judicial and administrative system as a whole needs to 
see  ANI  as  an  asset  to  be  encouraged.  The  handling  of  ANI  cases  by  the  courts  and  the 
cooperation  between  institutions  needs  to  improve  if  the  Agency  is  to  serve  its  purpose  as 
driving a major shift in attitudes towards integrity in Romania.  

Prevention and sanctioning of general corruption in the public sector  

As  well  as  ensuring  that  corruption  is  sanctioned  when  identified,  a  sustainable  decrease  in 
corruption  requires  action  to  make  corruption  less  likely  in  the  first  place.  Preventive 
measures to reduce opportunities and risks for corruption, such as transparent procedures and 
predictable decision-making by public institutions, are a key step.  

The overall direction of action is framed by a national anti-corruption strategy. The last five 
years present a mixed picture in this regard. The 2008-10 Strategy failed to deliver the impact 
sought.  However,  a  comprehensive  new  strategy  was  adopted  in  March  this  year,  and  the 
decision  of  the  new  Government  to  re-endorse  the  strategy  unchanged,  accompanied  by  the 
endorsement of the Parliament, suggests general political backing. The new strategy has taken 
up  many  recommendations  from  an  impact  analysis  of  the  previous  two  strategies  and 
provides  a  good  basis  to  coordinate  and  focus  the  activities  of  different  state  institutions.  It 
also  allows  for  a  monitoring  of  progress  following  a  series  of  indicators.  Adoption  by 
Parliament  was  a  useful  way  to  underline  that  all  influential  parts  of  society  have  a  part  to 
play in making the strategy a success. 

Follow-up is heavily dependent on the actions of each part of government. As a dedicated and 
well-staffed anti-corruption body with both a preventive and an investigative role, the General 

57

58 

59 
60

61

Overall,  as  of  March  2012,  ANI  has  carried  out  nearly  4000  verifications  and  issued  findings  or  referrals  in  over  500  cases: 
including 250 findings of incompatibility, 37 cases of (administrative) conflict of interest, 24 cases of suspected unjustified assets 
and 239 referrals of possible criminal offences to the prosecution. 
The screening exercise has so far resulted in 75 findings of incompatibility, 9 findings of administrative conflict of interest, and 
referrals to prosecutors covering 50 suspected criminal offences. 
A useful step is the support of the Ministry of Justice for improving the salaries of ANI personnel. 
So far findings by ANI of incompatibilities have been finally confirmed by the courts or have become definitive by virtue of not 
being appealed within the time periods stipulated by law in 118 cases. In 53 of these cases officials resigned as a result, in 8 cases 
disciplinary committees pronounced dismissals and in a further 16 cases other sanctions were taken. 
A joint working group between the Ministry of Justice and ANI has already  made proposals which have not so far been taken 
forward. 

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Anti-Corruption Directorate of the Ministry of Administration and Interior (GAD) has made 
important progress in tackling corruption within the Romanian police and the Ministry’s other 
structures. GAD is so far the only department with a detailed corruption risk assessment and 
has also forwarded a significant number of corruption signals to the prosecution.62 To build 
upon these achievements and fulfil its potential, GAD should now expand their track record of 
cases  in  further  areas  of  serious  and  complex  corruption,  including  public  procurement  and 
investigations into corrupt links between police and organised crime. 

Comparable results have not been reached in other sectors of government activity. Cases of 
corruption are numerous in areas like tax administration, education, health and infrastructure 
investment;  however  risk  analysis  in  these  sectors  has  only  recently  started  and  only  a  few 
measures have been taken in areas that are the most corruption-prone and budget-sensitive.63 
The  educational  sector  has  piloted  some  useful  prevention  measures,  including  proposals  of 
the  National  Integrity  Centre,  such  as  video  surveillance  at  baccalaureate  exams  and  is 
drafting  a  sector  strategy  in  the  context  of  an  EU-funded  anti-corruption  project.  Other  key 
risk  areas  to  cover  are  school  infrastructure  investments  and  corruption  in  the  examination 
system in schools and degree awarding within universities. Activities in the health sector are 
now beginning, with the launch of another important EU-funded project.64 These have been 
some useful pilot activities in corruption-sensitive areas with an important impact on the state 
budget,  but  have  yet  to  be  carried  through  into  a  systematic  approach.  Few  activities  have 
taken place in areas such as tax and customs, although particular  risks in  these  areas would 
justify  creating  strong  preventive  units  with  a  pro-active  mandate.65.  Administrative  control 
authorities  have  an  important  role,  but  do  not  yet  generally  perform  corruption  risk 
assessments  to  address  vulnerable  areas  and  generally  do  not  cooperate  with  judicial 
authorities or with ANI. Experts suggest insufficient independence and political influence as 
important underlying reasons for inaction.66  

The low number of corruption signals by administrative authorities has also had an impact on 
the  number  of  cases  coming  to  the  prosecution  and  the  courts.  An  exception  is  the  area  of 
police, where GAD has referred a considerable number of cases. The General Prosecutor has 
asked  local  prosecution  offices  to  develop  local  anti-corruption  strategies,  issued  guidelines 
for  the  investigation  of  corruption  cases  and  created  a  network  of  specialised  prosecutors. 
These  measures  have  improved  the  number  of  corruption  cases  pursued  by  the  regular 
prosecution.67 

The new national anti-corruption strategy offers an opportunity to make a step change in the 
commitment of all government agencies to implement pro-active policies to make corruption 
more difficult, and to identify problems when they arise. The best practice available in cases 

62

64

63

In particular, they cooperated with the DNA in a number of important and complex investigations including concerning 
corruption in the issuing of driving licenses (2008) and within the border police (2010-11). Overall, since 2007, GAD has submitted over 
1000 cases to DNA which so far led to 222 indictments for high-level corruption. During the same period GAD submitted over 
6300 other corruption files to the prosecution which led to 836 indictments so far.  
Comprehensive anti-corruption activities have not yet been taken up in areas such as tax, customs but also regarding construction 
permits in local government.  
This will strengthen the detection of irregularities in health sector procurement, whilst a further important project to strengthen 
awareness  of  patients  rights  and  to  tackle  the  supply  side  of  corruption  in  the  health  system  is  proposed.  An  anti-corruption 
project  has  also  been  launched  by  the  Ministry  of  Regional  Development  and  Tourism  to  develop  analyse  corruption 
vulnerabilities within the Ministry and its subordinated structures and to develop a detailed strategy.  
This month the Government approved the creation of an integrity unit within the National Agency for Fiscal Administration. Its 
structure, powers and resourcing has still to be determined.  
In the area of public procurement, the competent control authority ANRMAP forwarded only five signals to DNA since 2007. In 
2011, ANRMAP forwarded only three signals on conflict of interest. 
See Technical Report pages 34 – 35. 

66

67

65

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like the Ministry of Administration and Interior could be extended to all sectors with high risk 
and  important  budgetary  impact.  The  establishment  of  an  independent  telephone  hotline  to 
signal  corruption  offences  across  public  service  would  also  help  to  stimulate  signals.  But 
above all, anti-corruption actions must win trust of the public, and that will require a virtuous 
circle where the public can see that consequences follow when justified cases are raised.  

Ombudsman 

The  Ombudsman  plays  an  important  role  in  the  fight  against  corruption  in  Romania.  The 
Ombudsman  is  empowered  to  conduct  investigations  concerning  alleged  illegal  acts  of  the 
administration.  It  is  an  independent  body,  which  can  act  on  the  basis  of  an  appeal  by  any 
person or on its own initiative. The Ombudsman is also entitled under Article 26(2) of Law 
35/1997 to report to the parliament or to the prime-minister on "grave cases of corruption" he 
finds in the course of his investigations. The role of the Ombudsman is relevant to the CVM 
in  particular  to  the  fourth  benchmark  on  preventing  and  fighting  against  corruption.  The 
Ombudsman is also the only institution that can directly challenge Government Ordinances in 
front of the Constitutional Court. 

The  Commission  notes  that  on  3  July  2012  the  Parliament  prematurely  terminated  the 
mandate  of  the  Ombudsman.  The  Romanian  authorities  need  to  ensure  the  independence  of 
the  Ombudsman,  and  to  appoint  an  Ombudsman  enjoying  cross-party  support,  who  will  be 
able to effectively exercise its legal functions in full independence. 

Recovering the proceeds of crime 

Experience  shows  that  pursuing  corruption  often  comes  down  to  pursuing  the  proceeds  of 
corruption. So recovering the proceeds of crime and tackling money laundering are essential 
parts  of  any  anti-corruption  strategy.  In  2011,  Romania  has  established  an  asset  recovery 
office68 and 2012 saw a new law on extended confiscation. Since 2010 prosecution and police 
apply a standardised procedure to recover the proceeds of crime acting under a common order 
by the General Prosecutor and the Minister of the Interior. Training in this area has been made 
compulsory and a network of specialised prosecutors has been created. 

However,  this  action  is  yet  to  bear  fruit.  Extended  confiscation  remains  a  new  concept  for 
police, prosecutors and judges. Concepts such as third-party confiscation seem to be readily 
challenged in court.69 Despite positive jurisprudence, money laundering is still not prosecuted 
as  a  stand-alone  offence.70  Expert  assessment  suggests  that  the  level  of  confiscations  is 
unexpectedly low.71 In addition, the lack of comprehensive statistical information in this area 
makes it difficult for the authorities to monitor progress. 

Public procurement 

Weaknesses in the implementation of public procurement legislation are an important source 
of corruption and misuse of public funds. They also affect the effective use of EU funds and 
lower quality in the delivery of public goods. Audits and assessments by various Commission 
services  have  repeatedly  identified  systemic  risks  and  shortcomings  in  this  area,  sometimes 

68

69

70
71 

The establishment of an asset recovery office responds to requirements in Council Decision 2007/845/JHA. 
There  is  not  yet  a  common  vision  within  the  profession  regarding  third-party  confiscation  and  a  lack  of  jurisprudence.  The 
Constitutional provision according to which the licit origin of property is presumed contributes to a cautious approach and non-
unitary practice in this area. 
Jurisprudence has been established in one case and a legal opinion was issued by the General Prosecutor. 
Between 2007 and 2011, 42 convictions were achieved for money laundering offences.  

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resulting in interruptions in payments of EU funds. This is backed up by complaints received 
directly by the Commission.  

Since  accession,  Romania  has  created  an  extensive  institutional  and  legal  framework  to 
implement EU legislation in this area. However, a number of systematic shortcomings have 
not  been  sufficiently  addressed.  Inconsistencies  are  caused  by  factors  including  frequent 
changes of the legal framework72 and an institutional set-up that lacks sufficient capacity, as 
well as the absence of key instruments for effective controls such as a comprehensive register 
of public tenders. The protection of public procurement against conflict of interest has been 
identified  as  a  particular  weakness  by  Commission  audits  and  by  the  Romanian  National 
Integrity Agency.73 Romania has committed to implement through an overall action plan the 
findings of a comprehensive assessment of public procurement carried out by the Commission 
in 2011. Decisive action will be needed to remedy the shortcomings identified. 

III. Next Steps  

The  Commission's  assessment  shows  the  progress  that  Romania  has  made  in  the  five  years 
since  its  accession  to  the  EU.  This  illustrates  the  positive  role  played  by  the  CVM.  The 
Commission  considers  that  in  the  future  Romania  could  attain  the  objectives  of  the  CVM, 
provided it takes swift action to guarantee the rule of law, maintains the direction and steps up 
the implementation of reforms.  

However,  as  set  out  in  the  introduction,  recent  events  underline  concerns  about  the 
irreversibility and sustainability of the reforms. Romania needs to ensure respect for the rule 
of law, including independent judicial review. The trust of Romania's partners in the EU will 
only  be  won  back  through  proof  that  the  rule  of  law  is  above  party  interests,  that  all  sides 
show full respect for judicial review including at constitutional level, and that the reforms are 
irreversible. This needs legal steps – it also requires a political commitment to the rule of law 
that has been absent from recent decisions. The government has now committed to act swiftly 
to ensure respect for the rule of law in line with the recommendations listed below (see IV 1) 

This reinforces the conclusion that the progress in implementation of the benchmarks which 
would  be  required  for  the  Commission  to  decide  to  end  the  CVM  is  not  yet  present.  Wider 
ownership of reform within all branches of government, as well as within the judiciary, and a 
stronger  commitment  to  integrity  and  to  the  fight  against  corruption  is  necessary  to 
satisfactorily  fulfil  its  requirements.  In  particular,  the  Romanian  authorities  need  to 
demonstrate that a sustainable and irreversible reform process has taken root in Romania and 
that  the  external  intervention  of  the  CVM  is  no  longer  needed.  This  is  why  recent  steps  by 
Government and in Parliament raise particular concerns. 

The experience of the last five years shows that when convincing action is taken, it can bring  
results. Romania can already point to a positive direction in the reform process in institutions 
like  DNA  and  ANI,  and  in  targeted  action  like  the  acceleration  of  cases  in  the  High  Court. 
Recent  events  have  seen  the  judiciary  taking  a  more  proactive  stance  in  defence  of  judicial 
independence. Clearly, preserving such progress and maintaining momentum and institutional 
stability  in  such  cases  are  the  first  building  blocks  in  demonstrating  sustainability.  Moving 
swiftly from the successful phase of legislation to a determined phase of implementation will 
bring closer the moment when Romania will meet the requirements of the CVM. All Member 
States have both obligations and opportunities within the area of freedom, security and justice, 

72

73

Technical Report, page 40. 
See footnote 56. 

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and the Commission looks forward to Romania completing the particular process of the CVM 
and addressing these issues on the same basis as other Member States. 

Given  current  uncertainties,  the  Commission  will  adopt  a  further  report  under  the  CVM  for 
Romania  before  the  end  of  2012.  In  this  report,  it  will  look  at  whether  the  concerns  it 
expresses regarding the rule of law and the independence of the judiciary have been addressed 
and  whether  the  democratic  checks  and  balances  have  been  restored.  The  Commission  will 
monitor  progress  closely,  with  regular  missions,  as  well  as  frequent  dialogue  with  the 
Romanian authorities and with other Member States. 

IV. Recommendations 

The most important next step will be for the government and the key institutions of Romania 
to demonstrate their commitment to the indispensible foundation stones of the rule of law and 
judicial  independence.  This  requires  a  number  of  urgent  steps  by  the  government  and 
Parliament.  Whilst  the  recommendations  listed  below  include  a  number  of  specific  reforms 
needed to maintain progress under the CVM, the current controversies described in the earlier 
part of the report raise important concerns on the progress achieved so far and pose important 
questions as to the sustainability and irreversibility of reforms already launched. Considering 
the  exceptional  nature  of  these  recent  developments,  this  report  includes  specific  urgent 
recommendations to address the current situation notably under the section 1: Respect for the 
rule of law and the independence of the judiciary. 

The Commission invited Romania to take immediate action in the following areas in order to 
resolve the current controversies: 

1. Respect for the rule of law and the independence of the judiciary 

• 

• 

• 

• 

• 

• 

• 

Repeal of Emergency Ordinance no 38/2012 and  Emergency Ordinance no 41/2012 
and ensure that Constitutional Court rulings on the quorum for a referendum and the 
scope of the Court's responsibilities are respected; 

Respect constitutional requirements in issuing emergency ordinances in the future; 

Implement all the decisions of the Constitutional Court 

Ensure  the  immediate  publication  of  all  acts  in  the  Official  Journal,  including 
decisions of the Constitutional Court 

Require all political parties and government authorities to respect the independence 
of the judiciary; with a commitment to discipline any government or party member 
who undermines the credibility of judges or puts pressure on judicial institutions; 

Appoint  an  Ombudsman  enjoying  cross-party  support,  through  a  transparent  and 
objective  process,  leading  to  the  selection  of  a  personality  with  uncontested 
authority, integrity, and independence; 

Introduce  a  transparent  process  for  the  nomination  of  the  General  Prosecutor  and 
Chief Prosecutor the National Anti-Corruption Directorate. This should include open 
applications based on criteria of professional expertise, integrity and a track record of 
anti-corruption action. No nomination should be made under the acting Presidency;  

• 

Avoid any presidential pardons during the acting Presidency; 

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• 

• 

Refrain  from  appointing  Ministers  with  integrity  rulings  against  them;  ministers  in 
that situation should step down; 

Adopt clear procedures which require the resignation of Members of Parliament with 
final  decisions  on  incompatibility  and  conflict  of  interest,  or  with  final  convictions 
for high-level corruption. 

By  his  letters  of  16  July  and  the  updated  annex  of  17  July  the  Prime  Minister  of  Romania 
confirmed to the President of the Commission that all of these requirements have or will be 
met. 

Romania should also take action in the following areas: 

2. Reform of the judicial system: 

• 

• 

• 

Adopt  and  implement  a  joint  comprehensive  plan  to  ensure  implementation  of  all 
four codes, including all relevant aspects of, structural and procedural reform, human 
resource adjustment, and investment into judicial infrastructure. 

Restructure the court system and prosecution offices, rebalancing staff and workload, 
guided  notably  by  the  functional  review  of  the  Romanian  judicial  system  and  the 
project on optimal workload in courts currently funded by the World Bank.  

Create  a  monitoring  group  for  judicial  reform  which  involves  all  state  powers, 
professional associations and civil society.  

3. Accountability of the judicial system: 

• 

• 

• 

Agree  a  joint  policy  between  the  SCM  and  the  Government  to  promote 
accountability  and  integrity  within  the  judiciary  through  convincing  disciplinary 
practice  and  jurisprudence,  with  clear  milestones  for  implementation.  Use  the 
implementation of the new laws on disciplinary responsibility and promotion to the 
High Court to set an example for the judicial system as a whole. 

Ensure  better  coordination  of  legal,  disciplinary  and  management  instruments  to 
protect  the  reputation  of  the  judiciary  in  serious  cases  of  misconduct,  including 
decisions on individual rights, such as pensions. 

Strengthen  the  capacity  and  performance  of  the  Judicial  Inspection  to  both  pursue 
judicial  accountability  through  the  follow-up  of  individual  cases,  and  to  promote 
judicial efficiency, consistency and good practice through regular reviews of practice 
at all levels of the judicial system. 

4. Consistency and transparency of the judicial process 

• 

Develop  a  comprehensive  approach  to  put  in  place  the  structures,  procedures  and 
legal  unification  a 
practices  needed 
management  priority  for  court  presidents  and  consistency  an  important  element 
within  the  appraisal  and  promotion  system  of  judges.  Ensure  the  full,  on-line 
publication and continuous update of motivated court decisions.  

legal  unification.  Make 

to  accelerate 

• 

Further reform the High Court to allow stronger focus on legal unification. 

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5. Effectiveness of judicial action 

• 

• 

• 

• 

• 

Establish  and  implement  across  the  court  system  clear  best  practice  guidelines 
regarding sentencing, case management and the consideration of evidence in criminal 
trials,  with  a  particular  emphasis  on  areas  where  shortcomings  have  already  been 
identified,  such  as  in  the  complex  trials  involving  economic  crimes  and  public 
procurement. 

to  publish  court  motivations  swiftly  after  decisions  are 
Introduce  reforms 
pronounced,  to  suspend  prescription  periods  upon  the  beginning  of  a  judicial 
investigation, and to improve the quality and availability of court expertise.  

Continue  the  measures  taken  at  the  High  Court  to  accelerate  high  level  corruption 
trials, ensure that prescription periods are avoided, and introduce similar measures in 
other courts 

Continue to improve the consistency and dissuasiveness of penalties applied in high-
level corruption cases in courts across Romania.  

Ensure  that  the  results  achieved  by  the  Public  Ministry  are  continued  under  new 
leadership.  

6. Integrity 

• 

• 

Ensure a convincing track record of prompt and dissuasive sanctions. Streamline the 
judicial  review  of  the  decisions  of  the  National  Integrity  Agency  (ANI)  through 
improvements  to  judicial  procedures  and  practice  and  through  a  review  of  ANI's 
legal  framework,  to  speed  up  final  decisions  and  improve  their  consistency  and 
dissuasiveness.  

Improve  the  cooperation  of  judicial  and  other  administrative  authorities  with  ANI 
with a view to ensure effective exchange of signals and operational information in all 
three areas of ANI's activities. Cooperation with ANI should be a clear performance 
measure for the leadership of other administrative authorities. 

7. Fight against corruption 

• 

• 

• 

Ensure that the results achieved by DNA are continued under new leadership.  

Implement  the  new  National  Anti-Corruption  Strategy  as  designed  and  set  up  a 
comprehensive  system  of  monitoring  so  that  all  agencies  of  government  set  targets 
and  report  annually,  in  a  common  and  comparable  format,  on  the  prevention  and 
sanctioning  of  corruption,  fraud  and  conflict  of  interest.  In  line  with  the  Strategy, 
establish clear procedural rules and best practice for decisions of Parliament to allow 
investigation, arrest and search of parliamentarians. 

Demonstrate a track record in the prosecution of money laundering as a stand-alone 
offence  and  deliver  convincing  results  in  the  recovery  of  the  proceeds  of  crime, 
through  strengthening  judicial  practice  and  applying  the  new  law  on  extended 
confiscation.  

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• 

• 

Establish  a  clear  coordination  and  monitoring  mechanism  between  police, 
prosecution  and  administrative  control  authorities,  with  specific  responsibility  for 
ensuring effective cooperation and communication on corruption  

Improve results in the prevention and sanctioning of corruption, fraud and conflict of 
interest  in  public  procurement  across  all  sectors  of  government  activity.  In  this 
context,  Romania  should  provide  proper  follow-up  to  the  recommendations  of  the 
external review of the public procurement system carried out on the initiative of the 
Commission. 

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