REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism
Date: 2016-01-27
Institutions: European Commission, Secretariat-General
Subjects: Romania, corruption, independence of the judiciary, judge, judicial reform, public prosecutor's department, rule of law

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 27.1.2016  COM(2016) 41 final   REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism {SWD(2016) 16 final}  
 
 
1. 

INTRODUCTION  

The Cooperation and Verification Mechanism (CVM) was set up at the accession of Romania 
to the European Union in 2007.1 It was agreed that further work was needed in key areas to 
address  shortcomings  in  judicial  reform  and  the  fight  against  corruption.  Since  then  CVM 
reports have charted the progress made by Romania and have sought to help focus the efforts 
of the Romanian authorities through specific recommendations.  

Judicial reform and the fight against corruption remain important issues for Romanian society, 
able to inspire large-scale public demonstrations, and further support to the consolidation of 
reform is still needed to ensure the irreversibility of progress. The CVM continues to play an 
important  role  in  Romania  as  driver  for  reform  and  an  incentive  to  maintain  consistency  in 
track  record.  The  Commission's  conclusions  and  the  methodology  of  the  CVM  have 
consistently  enjoyed  the  strong  support  of  the  Council,2  as  well  as  benefiting  from 
cooperation and input from many Member States.  

The  2015  CVM  report  noted  a  number  of  areas  of  continued  progress  showing  signs  of 
sustainability, notably through the action taken by the key judicial and integrity institutions to 
address  high-level  corruption  and  the  increased  professionalism  in  the  judicial  system  as  a 
whole. At the same time, the report highlighted that there remains a strong sense that progress 
needs  to  be  consolidated  and  further  secured,  with  many  legislative  issues  outstanding  and 
doubts  about  the  political  consensus  behind  reform.  The  Council  also  concluded  that  an 
overall,  continued  political  commitment 
the 
independence  of  the  judiciary  are  essential  in  order  to  ensure  the  sustainability  in  progress 
towards the CVM objectives.3  

to  sustained  reforms  and  respect  for 

This report returns to both trends to assess the extent to which reform has taken root.  It is the 
result of a careful process of analysis by the Commission, drawing on close cooperation with 
the Romanian authorities, as well as the input of civil society and other stakeholders. It also 
looks  at  a  number  of  important  tests  in  2016  to  further  demonstrate  sustainability.  The 
sustainability  of  progress  is  one  of  the  conditions  to  show  that  a  mechanism  like  the  CVM 
would no longer be required. The Commission has paid particular attention to these aspects in 
its monitoring this year and will continue to support Romania to achieve the CVM objectives. 
Support  is  already  provided  to  Romania  in  many  areas  under  the  European  Structural  and 
Investment Funds.4  In addition, the Commission has in 2015 established a new instrument in 
the  form  of  a  Structural  Reform  Support  Service  (SRSS)  dedicated  to  providing  technical 
assistance  to  the  reform  efforts  of  EU  Member  States  in  a  broad  range  of  areas.  The 
Commission encourages Romania to make full use of all the possibilities provided. 

1    Conclusions of the Council of Ministers, 17 October 2006 (13339/06); Commission Decision 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).  

2   http://ec.europa.eu/cvm/key_documents_en.htm. 
3    http://data.consilium.europa.eu/doc/document/ST-7281-2015-INIT/en/pdf 
4    In the 2007-2013 period Romania has implemented a number of projects in the anti-corruption and judicial 
reform area. The total amount of funding from the European Social Fund (ESF) is EUR 16 million. The main 
beneficiaries  have  been  the  Ministries  of  Public  Administration,  Justice,  Education  and  Health.  European 
Regional  Development  Funds  (ERDF)  were  invested  in  actions  relating  to  integrity  control  projects 
(including  the  ex-ante  control  system  PREVENT),  capacity  of  public  procurement  agency  for  a  budget  of 
about EUR 15 million.  In the 2014-2020 period the Administrative Capacity Programme (ESF) will provide 
funding  of  about  EUR  103  million  for  judicial  reform  projects,  including  EUR  35  million  specifically  for 
anti-corruption, and EUR 35 million to support improvements in public procurement. ERDF resources up to 
EUR 15 million will be invested in capacity building and technical assistance in public procurement, in fraud 
prevention for Management Authorities and in the Fight Against Fraud Department (DLAF). 

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2. 

STATE OF PLAY OF THE REFORM PROCESS IN ROMANIA 

2.1.  

Judicial independence 

Appointments 

Recent CVM reports have noted the role of the key institutions of the magistracy – the High 
Court of Cassation, the Public Ministry and the National Anti-Corruption Directorate, and the 
Superior Council of the Magistracy – in building up the credibility and professionalism of the 
judicial  system  through  establishing  a  track  record.  Clearly  the  leadership  of  those 
institutions  has  played  an  important  part  in  this,  sometimes  in  the  face  of  strong  personal 
criticism. Hence the emphasis placed on transparent and merit-based selection procedures5 as 
a  way  to  provide  robust  leadership,  avoid  political  interference  in  senior  appointments  and 
support judicial independence.  

The  2015  report  saw  the  nomination  of  a  new  Chief  Prosecutor  for  the  Directorate  for 
Investigation  of  Organised  Crime  and  Terrorism  as  an  important  test  case.6  The  procedure 
was  eventually  finalised  with  little  controversy:  it  was  characterised  by  increased 
transparency  and  predictability  (publication  of  post,  criteria  publicly  defined,  names  of 
candidates published), and benefitted from clear cooperation between the Minister of Justice 
(responsible  for  choosing  the  candidate)  and  the  Superior  Council  of  the  Magistracy.  It 
therefore  provided  a  good  example  of  how  clear  and  robust  procedures,  with  the  full 
involvement  of  the  key  authorities,  can  be  the  most  important  factor  in  a  credible 
appointment  process  (although  procedures  must  also  be  strong  enough  to  cope  with  a 
situation where the key institutions are in disagreement7).  

2016 will see a series of appointments to key posts and both the process and the results will 
be  a  key  test  of  the  ability  of  the  judicial  system  to  maintain  the  reform  process  through  a 
time  of  change.8    The  President  of  the  High  Court  of  Cassation  and  Justice,  the  General 
Prosecutor and the Chief Prosecutor of the National Anti-Corruption Directorate are all posts 
which need clear, open, and predefined procedures.9  

In  the  longer  term,  a  more  robust  and  independent  system  of  appointing  top  prosecutors 
should be settled in law: no criteria exist at legislative level for ensuring the highest level of 
professional skills and integrity, and the current procedure includes a strong political element 
in  terms  of  the  role  it  gives  to  the  Minister  of  Justice.    Past  appointment  procedures  have 
been  the  subject  of  considerable  controversy  and  subject  to  clear  political  influence.  Using 
guidance from the Council of Europe, the Minister of Justice and the Superior Council of the 
Magistracy should lead the debate about whether it is appropriate for the key decision to rest 
with a government Minister,10 particularly when it comes to appointments at levels below the 
top management of institutions.  

5   COM (2015) 35 final; COM (2014) 37 final; COM (2013) 47 final; COM (2012) 410 final. 
6   The  former  chief  prosecutor of  the Directorate  (DIICOT)  is in  preventive  detention  on  corruption  charges, 

highlighting the need to bring any integrity issues to the surface. 

7   For  example,  the  appointments  to  the  senior  posts  of  the  prosecution  in  2012-13  were  a  source  of 

controversy. 

8   General Prosecutor and Chief Prosecutor of the DNA: May 2016, President of the High Court of Cassation 

and Justice: September 2016, Superior Council of Magistracy: elections in Q4 2016. 

9      The  nomination  procedure  for  the  Chief  Prosecutor  of  DIICOT  also  applies  to  all  senior  prosecutors,  their 
deputies and includes the level of heads of sections in the Public Ministry and the DNA.  In total, there are 15 
prosecution posts to be chosen by the Minister of Justice this year. 

10   The  Venice  Commission  has  undertaken  specific  work  in  this  area  to  find  the  right  balance  (see  technical 

report section 2.1, pp 6-8).  

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Respect for judges and the judicial process 

The  successful  prosecution  and  conviction  of  many  prominent  politicians  in  Romania  for 
high level corruption is a sign that the underlying trend of judicial independence is positive, 
and that no one committing a crime is beyond the reach of justice. But there has also been a 
reaction  to  this  trend:  criticism  of  magistrates  by  politicians  and  in  the  media  and  lack  of 
respect  of  judicial  decisions  remain  frequent.11  This  year  there  has  been  an  increase  of 
requests  to  defend  the  independence  of  justice,  following  attacks  in  the  media  and  by 
politicians, including the Prime Minister and the President of the Senate.12 There were also 
still cases of pressure on judges of the Constitutional Court.13 As the 2015 report noted, in the 
wake of the election of the President of Romania, there seemed some shift towards a more 
responsible approach. But this dissipated in the spring, notably following the opening of an 
investigation  by  the  National  Anti-Corruption  Directorate  (DNA)  into  the  Prime  Minister. 
Criticism targeted the Heads of both the DNA and the High Court of Cassation and Justice 
(HCCJ) personally.14 

The  Superior  Council  of  Magistracy  (SCM)  and  the  Judicial  Inspection  have  continued  in 
2015 to defend the independence of justice and the professional reputation, independence and 
impartiality of magistrates.15 There continue to be several examples notified  to the SCM of 
attacks  in  the  media  and  by  politicians,  and  the  SCM  has  had  to  issue  many  critical 
conclusions  as  a  result.  But  the  SCM  cannot  secure  an  equivalent  level  of  coverage  for  its 
press statements compared to the initial criticism; and beyond this moral support, the SCM 
offers no financial or legal help for magistrates seeking redress in court. 

There  is  also  a  potential  role  for  parliamentary  authorities  in  monitoring  the  comments  of 
parliamentarians.  The  Commission  recommended  last  year  to  "ensure  that  the  Code  of 
Conduct  for  parliamentarians  includes  clear  provisions  so  that  parliamentarians  and  the 
parliamentary  process  respect  the  independence  of  the  judiciary".16  This  recommendation 
has not been followed.  It also noted that the debate on possible changes to the Constitution 
could give an opportunity to consolidate judicial independence at Constitutional level. 

The Constitutional Court and respect for court decisions 

The  Constitutional  Court  (CCR)  has  an  important  role  in  the  rule  of  law  and  in  the 
consolidation  of  an  independent  justice  system.  The  Court's  rulings  in  2015  included  24 
decisions  concerning  the  provisions  of  the  new  Criminal  Code  and  Code  of  Criminal 
Procedures,  and  some  important  rulings  linked  to  the  balance  of  powers  and  respect  for 
fundamental rights. These included resolving a conflict between the Senate and the judiciary 
concerning  a  request  for  preventive  arrest.17  Many  CCR  decisions  on  the  Criminal  Codes 
aimed  at  reinforcing  respect  for  fair  trials  and  rights  of  the parties  in line  with  ECHR  case 
law.  Though  judges  and  prosecutors  had  to  quickly  adapt  their  practices  to  the  CCR's 
decision, the general appreciation is that such decisions improve legal certainty and the rights 

11   As also reported in previous CVM reports: COM (2013) 47 final, p4; COM (2014) 37 final p3; COM (2015) 

35 final, p2. 

12   Technical report, section 2.1, p5. 
13   For  example  in  the  context  of  an  ongoing  case  on  the  way  the  Constitutional  Court  took  a  decision 
concerning  the  organisation  of  the  2012  referendum  on  impeachment  of  the  then  President  of  Romania. 
Technical report, section 2.1, p5.  

14   For example, in a public letter to the President of Romania, the President of the Senate, referring to a case of 
a  person  acquitted  in  first  instance  but  in  preventive  arrest  for  6  months,  requested  the  revocation  of  the 
President of the HCCJ and of the Chief Prosecutor of DNA. Technical report, section 2.1, p5. 

15   Technical report, section 2.1,pp 5-6. 
16   COM (2015) 35 final, p.13; COM (2014) 37 final.  
17   Technical report, section 2.1, p4. 

4 

 
                                                            
of  litigants.  The  decisions  of  the  High  Court  of  Cassation  and  Justice  (HCCJ)  on  the 
interpretation of the law also play an important role in the institutional checks and balances.18  

2.2. Judicial reform 

New Codes 

The new Criminal Code and Code of Criminal Procedures entered into force two years ago, 
on  1st  February  2014.  The  2015  CVM  report  looked  forward  to  a  stable  legislative 
environment for the new Codes, a clear objective of the Codes on adoption. However, almost 
two years on, this stability seems no closer.  

A persistent source of instability has been recurrent parliamentary proceedings on the Codes. 
Some  amendments  are  inevitable  and  in  consultation  with  the  judiciary,  the  Government 
proposed amendments to address identified problems as early as spring 2014. However, these 
amendments  have  not  yet  been  adopted  by  Parliament.  At  the  same  time,  parliamentary 
attention  has  been  given  to  a  number  of  amendments  which  have  been  the  source  of 
controversy. Amendments have attracted criticism from the judicial authorities, civil society 
and Member States on the grounds that that they would harm the fight against corruption and 
reduce the capacity of law enforcement authorities and courts to prosecute or sanction. Whilst 
some  of  these  could  be  characterised  as  maverick  amendments,  others have  been  passed  by 
one chamber of the Parliament and have been given the benefit of urgency procedures whilst 
the  Ministry  of  Justice  amendments  have  had  to  wait.  Some  of  the  past  year's  amendments 
recalled the amendments passed in December 2013, though it is to be noted that in contrast to 
that  occasion,  the  amendments  have  not  been  agreed  by  the  legislature.19  All  amendments 
need again to be considered by the Chamber of Deputies as decisional chamber. The debate 
has  not  resumed  after  summer  recess  though  new  amendments  continue  to  be  tabled, 
maintaining  an  ongoing  state  of  uncertainty.  Parliament  should  resolve  the  situation  by 
respecting the opinion of the judicial authorities.20 

A  series  of  Constitutional  Court  judgements  raised  important  issues  about  the  Codes  and 
required amendments to be made. Some of the issues raised address fundamental issues in the 
new Codes, such as the idea that a preliminary procedure to clear more technical issues in a 
case  could  take  place  without  the  presence  of  the  parties.  Although  the  judiciary  and  the 
government  have  immediately  adapted  practice  or  proposed  legislative  amendments,  legal 
uncertainty cannot be avoided as long as the amendments are pending in Parliament.  

At  the  same  time  as  these  discussions  on  the  legal  framework,  work  has  continued  on 
implementing  the  Codes  as  adopted.  The  general  perception  is  that  judges  and  prosecutors 
have  expressed  their  satisfaction  with  the  new  legal  framework,  and  that  the  judicial 
institutions, judges and prosecutors, and court clerks, have continued their efforts to make the 
reform work.  

The  High  Court  of  Cassation  and  Justice,  the  General  Prosecutor,  the  Superior  Council  of 
Magistracy,  the  National  Institute  of  Magistracy  and  the  Ministry  of  Justice  have  all  made 
specific  efforts  to  offer  intensive  support  to  all  courts  and  prosecutor  offices  targeted  on 

18  For example, decisions on whether doctors in public hospitals are public servants.  
     Technical report, section 2.1, p4. 
19   Amendments passed by the Parliament in December 2013 attracted criticism from judicial authorities and the 
international community, notably to the extent that they had the effect of exempting parliamentarians from 
the  scope  of  legislation  covering  corruption  offences  like  bribe  taking,  trading  in  influence  and  abuse  of 
office (see COM(2014) 37, pp 10-11). 

20   Technical report, section 2.2, p10. 

5 

 
                                                            
helping the transition and tackling obstacles.21 The Minister of Justice continued to take steps 
to supplement the number of positions, in particular court clerks and investigators. This work 
has  been  supported  also  by  thorough  training  programmes  by  the  National  Institute  of 
Magistracy and the National School of Clerks. 

In  general,  this  is  also  true  for  the  implementation  of  the  civil  codes,  with  the  transitional 
period needed to tackle cases predating the new codes in parallel with new cases now largely 
complete. There is evidence that the goal of greater effectiveness in the provision of justice 
has  been  achieved.22  However,  the  logistical  arrangements  needed  to  implement  provisions 
that should have  entered  into force on 1 January  2016 are well behind schedule,23 with  less 
than a quarter of the necessary premises ready. The result is that the entry into force of these 
aspects of the Civil Procedure Code has been delayed by one year. It will be important to have 
a clear plan in place and implemented to avoid a further postponement. 

Consistency of jurisprudence 

In  line  with  its  constitutional  role,  the  High  Court  of  Cassation  and  Justice  (HCCJ)  has  the 
primary responsibility for developing the consistency of jurisprudence and enforcing uniform 
interpretation  of  law  and  practice.  This  has  become  an  increasingly  important  aspect  of  the 
HCCJ's  work,  triggered  through  defined  legal  mechanisms  but  also  encouraged  through 
managerial  steps  such  as  meetings  and  discussions  at  national  level  with  representatives  of 
courts of appeal, the Superior Council of Magistracy and the National Institute of Magistracy. 
Such  meetings  focus  on  issues  where  divergent  interpretations  exist  and  common  solutions 
are communicated to all courts through guidelines. 

The  HCCJ  has  two  legal  mechanisms  at  its  disposal  for  developing  consistency  of 
jurisprudence and providing a unitary interpretation: the preliminary ruling and the appeal in 
the interest of the law. The number of requests for preliminary rulings continues to increase 
and  an  increasing  share  of  the  work  of  the  HCCJ’s  sections  is  dedicated  to  the  solving  of 
preliminary  questions.24  This  suggests  that  the  mechanisms  work  well  and  that  judges  in 
lower courts make use of it. The other consistency mechanism, appeals in the interest of the 
law,  also  continues  to  provide  a  substantial  contribution  to  unification.25  The  use  of  the 
preliminary ruling should continue to be encouraged for settling unclear provisions in the new 
Codes. 

Despite all these measures and signs of a cultural shift in favour of consistency, inconsistent 
decisions are still frequently reported. Whilst some issues relating to the new Codes should be 
resolved through the passage of time, some more structural problems require further attention 
from court managers and each magistrate, and continued training, also involving lawyers. 

Finally, the availability of online open and searchable access to all court decisions has been a 
recommendation of CVM reports, as one of the means to help magistrates and all parties to 

21   Technical report, section 2.2, p10. 
22   Technical report, section 2.2, p12. 
23   Notably the provision of premises to allow for the solving of cases in Council chamber. 
24   In  criminal  matters,  there were  35  preliminary  questions  lodged  and 33 settled  in  2015,  compared with  31 
preliminary questions lodged and 28 settled in 2014.  There is a strong increase in civil and administrative 
matters:  there  were  51  preliminary  questions  lodged  and  47  settled  in  2015,  compared  with  17  questions 
lodged and 13 settled in 2014. 

25   In  2015,  18  appeals  were  lodged  and  19  were  settled  in  civil  matters;  6  appeals  were  lodged  and  7  were 
settled in criminal matters. This mechanism can also be used for procedural questions, which is not the case 
for preliminary rulings. 

6 

 
                                                            
refer to similar cases and decisions.26 A project (to publish all court decisions online, under 
discussion for some years) has finally been put in place. 

Strategy for the Development of the Judiciary 2015-2020 

The  action  plan  2015-2020  for  the  implementation  of  the  Strategy  is  nearly  finalised  and 
consultations  with  all  stakeholders  have  been  organised.  It  will  be  important  for  this  action 
plan  to  enjoy  real  common  ownership  between  all  the  key  actors  if  it  is  to  serve  as  an 
operational tool: the process to reach the action plan has been lengthy and there is a sense that 
renewed momentum is needed. For example, it will be important to be clear to what extent the 
new Superior Council of Magistracy sees this as a blueprint for its own action. 

More generally, the elections to the new Superior Council of Magistracy (SCM) could be used 
to give further momentum to reform.27 Even if some of the current Council continue in post, it 
would seem important that the new Council has a clear collective philosophy on the basis of a 
new programme. Candidates should be expected to give a clear vision of how they see their 
role, and expect to be held accountable for the results  – the election process should provide 
the opportunity for candidates to debate how they see the future of reform.  The new Council 
should  address  concerns  from  many  magistrates  that  the  SCM  is  disconnected  from  the 
profession.28  More  than  thousand  magistrates  had  to  sign  a  petition  for  the  SCM  to  be 
persuaded to organise a consultation of all courts on a new system for appointing, evaluating 
and  promoting  magistrates.  The  next  SCM  could  demonstrate  further  its  commitment  to 
transparency and accountability, for example by being ready to set out and explain its policies 
and decisions in regular open meetings with assemblies of judges and prosecutors at all levels, 
as well as with civil society and professional organisations. Agreeing an annual report to be 
discussed  in  courts'  and  prosecutors'  general  assemblies  would  also  be  a  practical 
demonstration of more transparency in the Council's work.  

Resource management and efficiency 

The Minister of Justice successfully made the case for the importance of reform of the justice 
system  and  the  government  supported  for  example  390  additional  posts  while  the  budget 
increased by 46% since 2013. 

The effective use of such resources will be assisted by the development of useful management 
tools for the judicial system. Statistical information tools have been installed in all courts and 
are being  used to  improve service delivery. Other electronic tools such as  e-files  for parties 
and  judges  are  being  piloted  in  several  courts.  Structural  reform  of  the  justice  system  also 
needs to be accompanied by the modernisation of the buildings and IT systems: a number of 
construction or rehabilitation works in courts supported by World Bank loans are ongoing.  

However,  the  challenges  to  effective  resource  management  were  underlined  when  a 
(relatively modest) proposal to close small courts stalled in Parliament. The Superior Council 
of the Magistracy and the Ministry of Justice have been exploring alternative solutions such 
as  changing  the  boundaries  of  jurisdictions  to  share  the  burden  of  cases  better  –  a  decision 
which  can  be  made  at  their  level.  In  October  the  Government  approved  a  decision  of 
reassigning the jurisdiction localities within the area of jurisdiction of the Court of Appeal of 
Cluj.  At  prosecution  level,  the  General  Prosecutor  has  proposed  to  regroup  prosecutors  at 

26   COM (2014) 37, p13. 
27   SCM elections are planned in autumn 2016, with the new Council expected to take office in January 2017. It 
is not clear whether the elections will renew all members or only those that finished their six year mandate. 

28   Technical report, section 2.5, p21. 

7 

 
 
                                                            
Tribunal  (second  instance)  level  and  close  prosecutors'  offices  at  first  instance,  looking  at 
offices which are too small or have low workload, and finalised an impact study in December 
2015 to be consulted with the system. However the finalisation of the process and deadline for 
implementation are unclear. 

Amendments  to  the civil  code  of last  year provided that  court judgments could be enforced 
directly by bailiffs, aiming at speeding up the procedure. However, these were annulled by the 
Constitutional  Court  in  December.  In  fact,  the  Superior  Council  of  Magistracy  reports  an 
increase of the number of non-litigious enforcement cases pending in court.  Steps are planned 
under the action plan for 2015-2020 to improve the enforcement of judgments, such as setting 
up  an  electronic  database  to  monitor  cases  of  forced  execution  of  cases,  but  there  is  clear 
evidence that the enforcement of judgments, including final court decisions against the state 
(central  or  local  authorities),  often  remains  problematic.  This  is  an  area  which  could  be 
relevant  in  the  context  of  wider  efforts  by  the  Romanian  government  to  modernise  public 
administration.  

2.3. Integrity 

The National Integrity Agency and the National Integrity Council  

In March 2015, the President of the National Integrity Agency (ANI) resigned following the 
launch  of  an  investigation  by  the  National  Anti-Corruption  Directorate  (DNA).29  The  Vice-
President  of  ANI  acted  as  interim  President  and  was  appointed  in  December  as  President 
following  a  competition  organised  by  the  National  Integrity  Council  (NIC).  Though  the 
procedure was lengthy, it appeared open and transparent. 

The NIC is  the oversight body for ANI. Its mandate expired in November 2014. The initial 
process  for  appointing  a  new  NIC  was  subject  to  a  number  of  controversies.30  These  initial 
controversies were eventually resolved and the Council started its work in February 2015. The 
NIC elected the representative of civil society as its President, a helpful message in terms of 
independence. The  main task of the NIC in  2015 has  been  the  selection process of the new 
ANI President.  

Despite the resignation of its President, ANI has continued to process a high number of cases 
during  the  reporting  period.31  ANI  continued  to  initiate  a  substantial  number  of  cases  on 
conflicts  of interest  and incompatibility issues, many of them concerning local politicians.32 
This  shows  a  problematic  feature  of  low  acceptance  and  even  resistance  to  integrity  rules 
within a substantial number of local authorities, with implications for public procurement.33 

A  high  percentage  of  ANI  decisions  are  challenged  in  court  –  ANI  has  about  3000  files  to 
defend in court – but the confirmation rate of ANI decisions in court is still above 80%.  The 
administrative section of the High Court of Cassation and Justice has made efforts to speed up 
the treatment of ANI files (which represent some 10% of its workload) and has reduced the 
deadlines  for  solutions  from  18  to  about  9  months.  Regarding  criminal  conflicts  of  interest, 

29   The former President of ANI has been indicted in a case of abuse of office when he was a member of the 
Commission  for  Restitution  of  Properties.  The  case  is  not  linked  to  his  mandate  at  the  National  Integrity 
Agency. He resigned immediately after the start of the investigation. 

30   COM (2015) 35, p9. 
31   Technical report, section 3.1, pp 22-23. ANI's overall track record was stable compared to 2014. 
32   In 2015, 84% of the incompatibility cases, 66% of the administrative conflicts of interest cases and 66% of 
the  criminal  conflicts  of  interests  cases  concern  mayors,  deputy  mayors,  local  councillors  or  county 
councillors. 

33   This trend is confirmed in the work of the National Anti-Corruption Directorate. 

8 

 
                                                            
ANI  has  further  developed  the  cooperation  with  the  prosecution  to  help  streamline 
investigations and exchange information. 

The  follow  up  of  ANI's  final  decisions  and  their  confirmation  through  final  court  rulings 
remained  an  issue  in  2015.  Two  cases  in  Parliament  saw  significant  delays  before  final 
decisions  on  incompatibility  were  carried  through  into  the  ending  of  a  parliamentarian's 
mandate.34 ANI had  to  resort to applying contravention fines or  notifying the prosecution.35 
The Commission's 2015 recommendation to "look again at how to ensure that court decisions 
requiring  the  suspension  from  office  of  parliamentarians  are  automatically  applied  by 
Parliament" therefore remains valid. 

The "Prevent" IT system for ex-ante check of conflicts of interests in public procurement has 
been  taken  forward  and  when  implemented,  should  make  a  real  contribution  to  avoiding 
conflicts  of  interest  by  automatically  detecting  conflict  of  interests  in  public  procurement 
before the selection and contract award procedure. To ensure compliance with the obligations 
of the new EU public procurement Directives, further legislative and institutional steps will be 
needed  to  ensure  that  verification  applies  to  all  relevant  decision-makers,  in  line  with  the 
definition  of  conflicts  of  interest  in  the  Directives.36  The  Directives  also  require  that  the 
relevant institutions have the power to prevent the signature of contracts in case of suspicion 
of conflict of interests. ANI estimates that almost all the conflict of interest cases it pursues 
are  relatively  straightforward  cases  which  could  be  avoided  by  use  of  this  system.  Though 
implementation  has  taken  longer  than  expected,  the  law  was  adopted  by  the  government  in 
September  and  is  being discussed  in  Parliament.  It  will  be important that  the  law maintains 
the principle that contracting authorities are under an obligation to act when they are notified 
of a potential conflict of interest. "Prevent" should be ready to start operating as soon as the 
law  is  adopted.37  It  would  apply  first  to  public  procurement  involving  EU  funds,  but  be 
extended rapidly to all electronic public procurement.  

The integrity framework 

The  2015  CVM  report  noted  that  moves  to  codify  the  legal  framework  for  integrity  in  the 
interests  of  coherence  and  clarity  had  been  put  on  hold  due  to  concerns  that  existing  rules 
might  be  watered  down.38  The  desirability  of  such  a  step  has  been  confirmed  by  several 
parliamentarians  and  the  President  of  Romania.  However,  the  fact  that  one  chamber  of 
Parliament  has  adopted  an  amendment  which  would  in  effect  take  away  the  three-year 
election ban for elected officials found incompatible reinforced these concerns.  

A key test case will come with the forthcoming local elections (June 2016) and Parliamentary 
elections  (November  2016).  The  new  electoral  law  expressly  states  that  persons  excluded 
from  election  through  a  judicial  decision  cannot  stand  in  elections.  ANI  has  the  specific 
responsibility to process the wealth declarations of all candidates. It plans to have meetings at 
local  levels  with  those  responsible  for  dealing  with  wealth  declarations,  and  to  provide 
guidance  and  information  on  recurring  errors.  It  also  intends  to  step  up  its  awareness 
campaigns so that all candidates are well aware of potential incompatibilities and conflicts of 
interest.  Candidates  are  also  required  to  present  a  statement  that  they  fulfil  the  legal 
requirements for being nominated. Subsequently, there are checks and the possibility for legal 
challenge for the electoral committees, for the political parties and for the citizens. The bodies 

34   Technical report, section 3.4, p25. 
35   The  National  Integrity  Agency  imposed  fines  on  members  of  the  Legal  Committee  of  the  Chamber  of 
Deputies for failure to follow up on an incompatibility decision which was not challenged in the courts.  

36  Technical report, section 5.4, p37. 
37   A budget of 23 million Lei (€5.1m), partially funded through EU funds, has been foreseen. 
38   COM (2015) 35, p9. 

9 

 
                                                            
responsible  for  electoral  management  at  both  national  and  local  level  clearly  have  a 
responsibility to work with ANI to ensure that potential contraventions of the law are avoided 
or identified as early as possible. 

In the meantime, the judicial system has been working to improve the uniform interpretation 
of the existing legal framework. Recognising that there were particular issues of consistency 
in such cases, including inside the Court itself, the High Court of Cassation and Justice has 
put specific mechanisms in place to address the issue.39 This has helped lower courts, and also 
ANI in its own interpretation of the laws. ANI is also compiling a codex of all relevant court 
decisions. 

2.4 The fight against corruption 

Tackling High-level corruption  

The track record of the institutions involved in fighting high-level corruption remains strong, 
with  regular  indictments  and  conclusion  of  cases  concerning  senior  politicians  and  civil 
servants. The National Anti-Corruption Directorate (DNA)  reported an increased number of 
signals  from  the  public:  this  seems  to  reflect  a  public  confidence  in  the  institution  which  is 
also reflected in opinion polls.40 Public support for action against corruption was recognised 
to  be  a  strong  factor  in  the  demonstrations  leading  to  the  Prime  Minister's  resignation  in 
November 2015. DNA indicted over 1250 defendants in the course of 2015, and this included 
the Prime Minister, former Ministers, Members of Parliament, mayors, presidents of county 
councils, judges, prosecutors and a wide variety of senior officials.  It has also increased its 
interim asset freezing measures relating to these cases, to reach a figure of €452 million.    

A particular trend has been the identification of corruption at local level. Since 2013, the total 
numbers of local officials sent to trial for corruption amount to almost 100 mayors, over 20 
county  council  presidents  and  dozens  of  other  local  officials.  The  arrest  of  the  Mayor  of 
Bucharest in 2015 was the strongest illustration of this problem.   

As for the trial phase, the High Court of Cassation and Justice has maintained its track record 
in terms of bringing corruption cases to conclusion. In 2015 the Penal Chamber settled, at first 
instance, 11 high-level corruption cases and the panels of five judges settled, as final instance, 
11 high-level corruption cases. Even in cases with a high number of witnesses and complex 
evidence, the HCCJ judges have underlined their efforts to ensure respect of procedural rights 
for all parties. Proceedings have also been kept relatively short: the majority of cases finalised 
were registered in 2014 and 2015, while the oldest case goes back to 2011. Amongst the high 
profile  defendants  convicted  were  those  who  had  served  in  the  positions  of  Ministers, 
Members of Parliament, mayors, judges and prosecutors. 

In  2015,  Parliament  has  refused  about  one  third  of  requests  from  DNA  for  the  lifting  of 
immunity  of  Members  of  Parliament  to  allow  for  the  opening  of  investigations  or  the 
application of preventive detention measures – an issue monitored in previous CVM reports. 
Whilst a majority of requests were admitted, it remains the case that Parliament's response to 
DNA requests lacks objective criteria against which to give a clear and consistent motivation 
in each case, in particular for refusals. There are also still no clear rules established to follow 
up  the  CVM  recommendation  to  ensure  swift  application  of  the  Constitutional  rules  on 
suspension  of  Ministers  on  indictment  and  to  suspend  parliamentarians  subject  to  negative 

39   Technical report, section 3.2, p 23. 
40    DNA  reports  that  85  to  90  %  of  cases  originate  from  citizens'  complaints,  5  to  10%  are  ex-officio  or 
complaints from  other  institutions  and  less  than  5%  of  cases  originate  from  notification  of  the  intelligence 
services. 

10 

 
                                                            
integrity  rulings  or  corruption  convictions.41  The  fact  that,  as  noted  in  the  2015  report, 
Ministers have remained in office after indictment on criminal charges, and parliamentarians 
with  final  convictions  for  corruption  have  stayed  in  office,  remain  current.    Steps  that  have 
been taken here have been taken by some political parties rather than by Parliament. 

Combatting corrupt practices in the judiciary have been a priority for DNA and the judicial 
authorities. The number of cases brought to light has increased in recent years42 and there has 
been  an  increasing  sense  of  the  judiciary  wanting  to  show  that  it  has  high  standards  of 
integrity. In this respect, it is important that the judicial hierarchy is attentive to any risk of 
integrity for judges and prosecutors, and that magistrates receive proper guidance with regard 
to impartialities, conflicts of interest or incompatibilities. 

The  integrity  of  parliamentarians  and  of  judges  and  prosecutors  was  the  theme  of  the  4th 
evaluation round of the Council of Europe Group of states against Corruption (GRECO). The 
follow-up on the GRECO recommendations will be important to advance the above issues.43 

Tackling Corruption at all levels 

The  challenge  of  tackling  corruption  in  Romanian  society  as  a  whole  is  well-known.  The 
tragic fire in Bucharest in October was seen by many as revealing the consequences of local 
corruption,  and  the  evidence  of  the  problem  is  widespread.44    Risk  areas  identified  include 
education,  health  and  local  public  procurement,  involving  decisions  with  direct  financial 
consequences. Cases have included rigging exams, fraud against health insurance, and rigged 
procurement procedures, sometimes involving large numbers of officials.  
The National Anti-Corruption Strategy45 is the core instrument to encourage the prioritisation 
of  preventative  action  by  public  administration  at  national  and  local  level.  Concrete 
prevention  projects  within  ministries,  some  supported  by  EU  funds  and  NGOs,  continue  to 
bring a useful contribution to fighting corruption within the administration.46 However, if the 
corruption  prevention  measures  of  the  strategy  have  been  put  in  place,  their  application  is 
more  piecemeal,  due  to  insufficient  capacity  of  the  institutions,  lack  of  knowledge  and 
expertise  of  the  staff  and  lack  of  political  will  from  the  top  of  the  institutions.  The  limited 
results of the strategy, in particular at local level, are attested by the considerable number of 
corruption cases confirming perceptions of systemic corruption. The small number of signals 
received  by  DNA  from  the  former  public  procurement  authority  ANRMAP  also  reflected  a 
lack of inter-institutional cooperation. An extension of the National Anti-Corruption Strategy 
for the next two years is being prepared.  It will need to remedy the weaknesses found out in 
the  review,  focusing  notably  on  establishing  effective  control  bodies  with  the  necessary 
human and material resources. 

The overall administrative reform planned by the government will also be an opportunity to 
implement effectively the measures to fight corruption across the administration. 
The progress noted in the 2015 report47 in terms of the pursuit and prosecution of lower level 
corruption  has  continued,  notably  in  the  work  of  the  General  Prosecutor  and  the  Anti-
corruption Directorate General of the Ministry of Internal Affairs.48 The General Prosecutor 

41   COM (2013) 47 final, p7. 
42   Technical report, section 2.4, p20. 
43   http://www.coe.int/t/dghl/monitoring/greco/default_en.asp 
44   Technical report, section 5.1, p30. 
45   http://sna.just.ro 
46   Technical report, section 5.2, p31.  
47   COM (2015) 35, p11. 
48   Technical report, section 5.3, p33. 

11 

 
                                                            
has  prioritised  anti-corruption  work  and  it  will  be  important  that  resources  are  available  to 
continue this work. 

Concerning asset recovery, the Romanian Government tabled a draft law in June to set up an 
agency  to  manage  seized  and  confiscated  criminal  assets.  This  was  approved  by  the 
Parliament and promulgated in December. This is an important step towards an answer to the 
long-standing  recommendation  of 
the  enforcement  of 
the  Commission 
confiscation  orders  (it  appears  that  only  around  10%  of  the  value  of  confiscation  orders  is 
actually collected, thus hindering the dissuasive effect of the sanction). Effective results from 
the new agency can only be expected in the second half of 2016 at the earliest.  
The Romanian authorities, with the support of the Commission49, have designed a strategy to 
structurally  improve  the  public  procurement  system  and  adapt  it  to  the  new  EU  rules,  and 
have set up a new agency for ex-ante controls. The strategy includes addressing the risks of 
integrity and corruption and its implementation would be a significant step towards tackling 
public procurement as a major risk area for corruption.50  

improve 

to 

3. CONCLUSION AND RECOMMENDATIONS 

The  Commission's  2014  and  2015  CVM  reports  were  able  to  highlight  a  number  of  areas 
where reform was being consolidated through a strong track record. The continuation of this 
trend is in itself a sign of developing sustainability. The track record of the key judicial and 
integrity  institutions  to  address  high-level  corruption  has  remained  impressive.  The  judicial 
system as a whole has continued to show its professionalism, including a capacity to adapt to 
significant  changes  in  the  civil  and  criminal  codes,  efforts  to  unify  jurisprudence  and  a 
willingness to defend the independence of the judiciary. Romania has made further progress 
towards the CVM benchmarks. 

At the same time, the fact that several recommendations of the 2015 CVM report remain valid 
shows that reform does not enjoy the full consensus necessary to assure sustainable progress. 
Judicial  independence  and  respect  for  court  decisions  continue  to  face  challenge.  The 
Criminal Codes reform is put into question in Parliament. Decisions in Parliament on whether 
to  allow  the  prosecution  to  treat  parliamentarians  like  other  citizens  still  lack  objective 
criteria. There are improved steps to tackle general corruption, but not on the scale and with 
the political will required to address what is widely recognised as a systemic problem. Judicial 
reform and the fight against corruption remain important issues for Romanian society, able to 
inspire large-scale public demonstrations, and further support to the consolidation of reform is 
needed to ensure the irreversibility of progress. 

The  Commission  welcomes  the  constructive  cooperation  it  has  had  with  the  Romanian 
authorities over the past year as well as the political commitment of the government to pursue 
reform and  fight corruption. 2016 will be a test  year in  many respects. The extent to  which 
integrity  issues  prevail  in  the  appointments  to  the  senior  positions  in  the  judiciary  and  the 
scrutiny  of  candidates  for  forthcoming  elections  will  be  key  signs  of  the  extent  to  which 
reform  is  taking  root.  The  continuation  of  the  trend  of  reform  will  also  be  a  signal  of 
sustainability. The Commission looks forward to continuing to work closely with Romania to 
secure the CVM's objectives.  

The Commission invites Romania to take action in the following areas: 

49    In  the  context  of  the  implementation  of  the  new  EU  Directives  and  the  fulfilment  of  the  conditions  of  the 

European Structural and Investment Funds. 

50  The strategy would also benefit from the implementation of the "Prevent" programme, see page 9 above. 

12 

 
 
                                                            
1. Judicial Independence  

Public confidence in the judiciary is in part a reflection of its willingness to play its part as an 
independent  actor  in  the  governance  of  Romania.  Open  and  merit-based  appointment 
procedures  will  play  a  particularly  important  role  in  2016.  Steps  should  also  be  taken  to 
address  the  continued  tendency  for  magistrates  to  be  subject  to  personal  criticism  in  the 
exercise of their proper functions. 

  Ensure that clear and robust procedures are in place in time for the appointments to senior 
positions  in  the  magistracy  foreseen  in  2016.  This  would  imply  that  several  months 
before each procedure, the different steps and the criteria which will govern the decisions 
will be set out. Use a different approach for appointments below the top leadership of the 
prosecution  services,  with  the  newly-appointed  Heads  playing  an  important  role  in 
selecting their own team. Ensure transparency of all procedures;  

  Subsequently,  a  more  robust  and  independent  system  of  appointing  top  prosecutors 

should be settled in law, with the support of the Venice Commission; 

  As recommended in 2015, ensure that the Code of Conduct for parliamentarians includes 
clear  provisions  so  that  parliamentarians  and  the  parliamentary  process  respect  the 
independence of the judiciary; 

  The new Superior Council of the Magistracy should determine if more could be done to 
provide  appropriate  support  to  individual  magistrates  facing  criticism  undermining 
judicial independence. 

2. Judicial reform 

Work  should  continue  to  promote  reforms  which  can  be  seen  to  have  consolidated  the 
professionalism  of  the  magistracy.  This  would  be  helped  by  a  stable  legislative  framework. 
Previous recommendations on rationalisation of the courts and on improving the follow-up of 
court judgements remain valid.  

  As  recommended  last  year,  the  current  phase  in  the  reform  of  Romania's  legal  codes 
should be concluded swiftly by an agreement in Parliament to amend the codes, passing 
only those amendments which respect the opinion of the judicial institutions, as presented 
by the government;  

  The Government and the Superior Council of the Magistracy should set up a clear plan to 
ensure  that  the  new  deadline  for  the  implementation  of  the  remaining  provisions  of  the 
Code of Civil Procedures can be respected; 

  The incoming Superior Council of the Magistracy should put in place clear measures to 
promote transparency and accountability, including by ensuring a regular programme of 
open  meetings  with  assemblies  of  judges  and  prosecutors  at  all  levels,  an  ongoing 
dialogue with civil society, and an annual report. 

3. Integrity 

Integrity should be the guiding principle in public life and the legal framework and integrity 
institutions are designed to  promote this goal.  It is  important  to improve public acceptance 

13 

 
 
 
 
and  effective  implementation  of  incompatibility  rules  and  to  put  an  emphasis  on  upstream 
prevention of incompatibility and conflict of interest. 

  Pursue  efforts  towards  consistency  of  jurisprudence  of  integrity  decisions  and  make 

consolidated jurisprudence available to lower courts;  

  As recommended before, look again at how to  ensure that court  decisions requiring the 
suspension from office of parliamentarians are automatically applied by Parliament; 

 

Implement  the  ex-ante  check  of  conflict  of  interests  in  public  procurement  through  the 
"Prevent" programme; 

  Take steps to ensure the respect of the rules on integrity in the organisation of the local 

and general elections in 2016. 

4. Fight against corruption 

Maintaining the effort of the judicial institutions addressing high-level corruption remains the 
most important sign of consolidating the fight against corruption.  Corruption laws must apply 
equally to all and be applied at all levels. 

  Use  EU  funds  to  the  full  in  spreading  effective  prevention  measures  against  low-level 
corruption through the National Anti-Corruption Strategy and through general reforms to 
public administration; 

  Ensure that the new Asset Recovery Agency is set up with strong leadership, sufficient 
resources  and  the  support  of  all  other  institutions  to  improve  effective  recovery.  Other 
parts of the public administration should be clearly accountable for failure to pursue these 
issues; 

 

Implement the new public procurement strategy and action plan, ensuring a robust anti-
corruption  framework  in  terms  of  the  legal  framework,  institutional  arrangements,  and 
administrative capacity, applying the measures to prevent and detect conflicts of interests, 
and showing that transgressions are followed up in full. 

  Adopt objective criteria for deciding on and motivating lifting of immunity of Members 
of Parliament and ensure that immunity is not used to avoid investigation and prosecution 
of corruption crimes. 

14