REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism
Date: 2017-11-15
Institutions: European Commission, Secretariat-General
Subjects: Romania, conflict of interest, corruption, independence of the judiciary, judicial reform, public contract, rule of law

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   EUROPEAN COMMISSION  Brussels, 15.11.2017  COM(2017) 751 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Co-operation and Verification Mechanism {SWD(2017) 701 final}  
 
 
1. 

INTRODUCTION  

The Cooperation and Verification Mechanism (CVM) was set up at the accession of Romania 
to  the  European  Union  in  20071  to  address  shortcomings  in  judicial  reform  and  the  fight 
against  corruption.  Since  then,  CVM  reports  have  sought  to  help  focus  the  efforts  of  the 
Romanian authorities through specific recommendations, and have charted the progress made. 
As  underlined  by  the  Council2,  the  CVM  will  end  when  all  four  benchmarks  applying  to 
Romania are satisfactorily met. 
In  the  January  2017  CVM  report,3  the  Commission  took  stock  with  an  overview  of  the 
achievements,  the  challenges  outstanding,  and  set  out  the  key  remaining  steps  needed  to 
achieve 
twelve  key 
this  end, 
recommendations  that  if  followed  up  will  lead  to  the  conclusion  of  the  CVM  process.  The 
report highlighted that the speed of the process would depend on how quickly Romania will 
be  able  to  fulfil  the  recommendations  in  an  irreversible  way  and  also  on  avoiding  negative 
steps which call into question the progress made in past 10 years. 

the  CVM's  objectives.  To 

the  Commission  made 

Therefore,  at  this  stage  of  the  CVM  process,  this  report  presents  the  progress  made  in 
following up the recommendations set out in the January 2017 report. As in previous years, 
this report is the result of a careful process of analysis by the Commission, drawing on close 
cooperation  with  Romanian  institutions,  as  well  as  the  input  of  civil  society  and  other 
stakeholders, including other Member States. 

In  his  September  2017  State  of  the  Union  address,  President  Juncker  emphasised  the 
importance of the rule of law and of the independence of the judiciary:4 an imperative valid 
for all EU Member States, not just those involved in the CVM. This underlines the importance 
of  avoiding  a  climate  of  confrontation  between  the  different  branches  of  the  state  with 
damaging consequences for judicial independence, a problem which was noted in the January 
2017 report and which has remained during the period of reference of the present report. 

Based on its analysis of progress in Romania over the entire CVM process since 2007 and on 
progress  made  since January  2017  report,  the  Commission  remains  of  the  opinion that  with 
loyal cooperation between State institutions, a resolute political steer holding firm to progress 
already  achieved  and  respect  for  judicial  independence,  Romania  will  be  able  to  fulfil  the 
remaining outstanding CVM recommendations in a near future. 

The  Commission  intends  to  assess  progress  towards  the  end  of  2018,  and  stands  ready  to 
provide  further  assistance  to  help  Romania  meet  the  outstanding  recommendations  with  a 
view  to  reinforce  the  irreversibility  of  progress  and  therefore  bring  the  mechanism  to  a 
conclusion. 

2.   GENERAL SITUATION 

In the January 2017 report, the ten years' perspective showed that Romania had made major 
progress  towards  CVM  benchmarks.  A  number  of  key  institutions  and  much  important 
legislation  had  been  put  in  place.  The  reform  of  the  criminal  and  civil  codes  was  close  to 
finalisalisation.  The  report  confirmed  that  the  Romanian  judicial  system  had  profoundly 

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   Council conclusions on the CVM. 
3   COM (2017) 44. 
4   http://europa.eu/rapid/press-release_SPEECH-17-3165_en.htm 

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reformed  itself  and  that  the  judiciary  had  repeatedly  demonstrated  its  professionalism, 
independence and accountability. A number of internal safeguards against abrupt reversals of 
progress had also been noted. The twelve key recommendations from the January 2017 report 
were  set  out  to  address  the  remaining  identified  shortcomings.  Most  of  them  focus  on  the 
responsibility  and  accountability  required  from  the  Romanian  authorities  and  the  internal 
safeguards needed to ensure the irreversibility of the results. 

The  Romanian  Government  expressed  its  appreciation  of  this  approach  and  repeatedly 
affirmed  its  commitment  to  fulfil  the  CVM  recommendations.  In  Parliament,  both  the 
parliamentary  majority  and  the  opposition  also  showed  a  willingness  to  have  a  constructive 
dialogue, and responded positively to certain recommendations.  

However, despite the commitment  of the Government to  seek  to  close the CVM as soon as 
possible, progress in addressing the January 2017 CVM recommendations has been  affected 
by the political situation. Within a nine months period since the January 2017 report, Romania 
has  seen  two  governments,  while  growing  tensions  between  State  powers  (Parliament, 
Government and Judiciary) made the cooperation between them increasingly difficult. 

Furthermore, the positive progress and the continued good results of the judicial institutions in 
the  fight  against  corruption  were  largely  questioned  by  events,  such  as  in  January  2017  the 
adoption  by  the  previous  Government  of  a  Government  Emergency  Ordinance  to  de-
criminalise certain corruption offences, such as abuse of office and the proposal for a pardon 
law.5  Widespread  protests  throughout  Romania  contested  these  measures.  Even  though  the 
Emergency Ordinance was abrogated by the Government and also repealed by the Parliament, 
the events left a legacy of public doubts.  

A  controversy  also  emerged  with  the  discussion  of  proposed  revisions  to  the  Justice  laws 
since the end of August. When consulted, the  Superior Council of the Magistracy has twice 
rejected drafts, noting issues like judicial independence.6 Concerns have also been raised by 
the President of Romania and in civil society. There was also a petition issued demanding that 
the  opinion  of  the  Superior  Council  be  respected,  signed  by  a  majority  of  Romanian 
magistrates.  The  three  Justice  laws,  dating  back  to  2004,  regulate  the  status  of  judges  and 
prosecutors,  and  the  organisation  and  functioning  of  the  courts,  prosecution  offices  and  the 
Superior  Council  itself.  They  have  a  direct  impact  on  judicial  independence  and  the  justice 
system  more  broadly,  and  the  laws  as  they  stand  were  an  important  element  in  the  positive 
evaluation by the Commission last January. Some of the proposed changes covered issues like 
the role of the Judicial Inspection and the personal responsibility of magistrates, as well as the 
appointment  of  senior  prosecutors:  issues  which  touch  on  judicial  independence  and  where 
changes  raised  questions  about  whether  the  January  2017  report  assessment  with  regard  to 
progress  on  the  independence  of  the  judicial  system  would  have  to  be  reconsidered.  The 
strong negative reaction from the judiciary and parts of civil society focused  heavily on the 
issue of judicial independence. 

The  capacity  of  the  Government  and  the  Parliament  to  ensure  an  open,  transparent  and 
constructive  legislative  process  on  the  justice  laws  will  be  crucial.  In  general,  a  process  in 
which  the  judicial  independence  and  the  opinion  of  the  judiciary  is  valued  and  given  due 

5   Emergency Ordinance 13/2017, amending the Criminal Code and Code of Criminal Procedures. 
6   On  9  November  the  Superior  Council  of  Magistracy  gave  a  second  negative  opinion  on  the  drafts  on  the 

Justice laws currently in Parliament, though the motivation of this decision has yet to be issued. 

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account,7 as well as drawing on the opinion of the Venice Commission, is a prerequisite for 
sustainability of reform and is an important element in fulfilling the CVM benchmarks. 

Criticism  against  the  judiciary  and  judicial  decisions  remains  a  problematic  feature  in  the 
public debate.8 This is in contradiction with the positive findings of the Commission about the 
role of the magistracy in pursuing reform,9 supported by the Council,10 and with the need to 
respect  the  independence  of  the  judiciary.  Accepting  and  respecting  final  court  judgements 
and allowing the magistrates to fulfil their duty unhindered is essential, including to meet the 
condition set in the January report. 

3.  ASSESSMENT  OF  PROGRESS  ON  THE  FULFILMENT  OF  THE  CVM 
BENCHMARKS ON THE BASIS OF THE RECOMMENDATIONS SET OUT IN 
THE JANUARY 2017 CVM REPORT  

3.1.   Benchmark one: Judicial independence and Judicial reform 

3.1.1.  Judicial independence 

Recommendation  1:  Put  in  place  a  robust  and  independent  system  of  appointing  top 
prosecutors,  based  on  clear  and  transparent  criteria,  drawing  on  the  support  of  the  Venice 
Commission.  

Recommendation  2:  Ensure  that  the  Code  of  Conduct  for  parliamentarians  now  being 
developed in Parliament includes clear provisions on mutual respect between institutions and 
making  clear  that  parliamentarians  and  the  parliamentary  process  should  respect  the 
independence of the judiciary. A similar Code of Conduct could be adopted for Ministers. 

Appointments 

In  January,  the  Commission  reiterated  its  recommendation  to  put  in  place  a  system  of 
transparent and-merit based appointments of top prosecutors which would provide sufficient 
safeguards  against  politicisation.  The  appointment  procedure  of  top  prosecutors  has  been  a 
key part  of  the debate  around  proposed amendments to  the laws on Justice since August. It 
formed  part  of  the  first  negative  opinion  of  the  Superior  Council  of  the  Magistracy  in 
September, and has been further changed in the current draft.   

The Venice Commission has acknowledged that there are different models with regard to the 
appointment  to  the  position  of  Prosecutor  General  (or  similar  top  prosecution  posts). 
However, it has underlined the need for an adequate balance "such as to gain the confidence 
of  the  public  and  the  respect  of  the  judiciary  and  the  legal  profession."11  The  role  of  the 
President  and  the  degree  of  discretion  for  the  Minister  of  Justice  to  select  candidates  have 
been part of the debate here, as has the extent to which the  same appointment and dismissal 
procedure would apply at lower management levels within the prosecution.  

7   The Council of Europe Consultative Council of European Judges (CCJE) recommended in past opinions that 
“the judiciary should be consulted and play an active part in the preparation of any legislation concerning 
their status and the functioning of the judicial system”. "The position of the judiciary and its relation with the 
other powers of state in a modern democracy", Opinion No 18 (2015). 

8   For example, public statements from the authorities that the whole judicial system is dysfunctional or that the 

status quo needs to be brought "back to normality". 
9   CVM Report January 2017, COM (2017) 44 final.  
10   Council  Conclusions  on  the  CVM,  March  2017  https://ec.europa.eu/info/sites/info/files/st-7048-2017-

init_en.pdf. 

11   Report on European standards as regards the independence of the judicial system – Part II: The prosecution 

service, CDL-AD(2010)040. 

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The  January  recommendation  specified  the  need  to  draw  on  the  support  of  the  Venice 
Commission to help bring this long-standing debate to a close.12 . It remains the requirement 
of the recommendation that Romania calls on the advice of the Venice Commission. 

The  fulfilment  of  this  recommendation  will  also  need  to  ensure  appropriate  safeguards  in 
terms of transparency, independence and checks and balances, even if the final decision were 
to remain with the political level. 

Codes of conduct 

Since the last CVM report, criticism of the judicial system and magistrates in the media has 
been  particularly  strong.  This  confirms  the  validity  of  recommendations  to  ensure  that 
measures  are  taken  to  discourage  behaviour  which  amounts  to  open  challenges  to  the 
independence of justice and the authority of court decisions. Attempts to bring redress have 
been tried through the Superior Council of the Magistracy and through individual magistrates 
bringing  their  own  cases  to  court.  But  the  Commission's  recommendation  sought  an 
institutional  recognition  of  the  problem,  and  a  decision  to  take  steps  to  address  it.  This 
underlies  the  recommendation  for  a  Parliamentary  Code  of  Conduct  which  would  include 
provisions on respect for the independence of the judiciary. 

Parliament  adopted  a  Code  of  Conduct  on  11  October  2017.  The  inclusion  of  a  broad 
provision  on  the  respect  of  the  separation  of  powers  is  a  positive  step.  Although  it  did  not 
follow up on the Commission's recommendation to specifically refer to the independence of 
the judiciary, the implementation of the Code could achieve the same effect in different ways. 
The next step will therefore be to see how the Code has a practical effect in terms of defining 
what actions would go beyond the boundaries set by the Code, and what steps are taken when 
these  boundaries  are  crossed.  The  Code  of  Conduct  could  for  instance  benefit  from  being 
accompanied  by  guidance,  examples  and  awareness-raising  on  how  to  deal  with  concrete 
situations,13 to help it to become an effective tool in reducing public criticism of magistrates 
and improving respect for the judiciary and judicial decisions. It would for example be to be 
expected  that  whenever  the  Superior  Council  of  Magistracy  condemns  statements  of  a 
Member of Parliament criticising a magistrate or the judicial system, there would be a clear 
follow-up in Parliament to assess whether the Code had been breached.  

The  January  report  also  suggested  that  the  Government  might  usefully  adopt  a  Code  of 
Conduct for Ministers. In July 2017, the newly-appointed Government adopted a ministerial 
Code of Conduct which includes a similar provision on the respect of separation of powers. 

The  practical  application  of  the  Codes  of  Conduct,  in  terms  of  reacting  to  Members  of 
Parliament and Government criticising the judiciary, is therefore also important. 

3.1.2.   Judicial reform 

Recommendation 3: The current phase in the reform of Romania's Criminal Codes should be 
concluded, with  Parliament  taking  forward  its  plans  to  adopt  the  amendments  presented  by 
the  government  in  2016  after  consultation  with  the  judicial  authorities.  The  Minister  of 
Justice, the Superior Council of the Magistracy and the High Court of Cassation and Justice 
should finalise an action plan to ensure that the new deadline for the implementation of the 
remaining provisions of the Code of Civil Procedures can be respected. 

12   The Venice Commission has set out a list of European standards: 

http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2010)040-e  

13   A  similar  analysis  was  made  in  the  4th  evaluation  of  the  Group  of  States  Against  Corruption  (GRECO) 
http://www.coe.int/t/dghl/monitoring/greco/evaluations/round4/Eval%20IV/GrecoEval4%282015%294_Rom
ania_EN.pdf 

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Recommendation  4:  In  order  to  improve  further  the  transparency  and  predictability  of  the 
legislative  process,  and  strengthen  internal  safeguards  in  the  interest  of  irreversibility,    the 
Government  and  Parliament  should  ensure  full  transparency  and  take  proper  account  of 
consultations  with  the  relevant  authorities  and  stakeholders  in  decision-making  and 
legislative  activity  on  the  Criminal  Code  and  Code  for  Criminal  Procedures,  on  corruption 
laws, on integrity laws (incompatibilities, conflicts of interest, unjustified wealth), on the laws 
of  justice  (pertaining  to  the  organisation  of  the  justice  system)  and  on  the  Civil  Code  and 
Code for Civil Procedures, taking inspiration from the transparency in decision-making put 
in place by the Government in 2016. 

New Codes 

In 2017 there have been a number of developments with regard to the Criminal Code and the 
Code  of  Criminal  Procedures.  While  some  of  these  developments  serve  the  objectives 
underpinning  the  Commission  recommendations,  others  have  held  back  the  goal  of  more 
certainty and stability in the reform of the Codes.  It is to be noted that many of the debates 
around the Criminal Codes focus on provisions relevant to high level corruption crimes. 

The  recommendation  to  conclude  the  current  phase  of  the  reform  of  Romania's  Criminal 
Codes  remains  outstanding.  Parliament  has  so  far  adopted  none  of  the  draft  amendments 
proposed by the Government in 2016, which had been the result of broad consultations with 
the  judiciary.14  Parliament  has  however  adopted  other  amendments  to  the  Criminal  Code, 
notably those with the effect of decriminalising conflict of interests.15 

The  rapid  succession  of  Constitutional  Court  decisions  declaring  provisions  of  the  Codes 
unconstitutional has added to the challenge of stability. The Ministry of Justice has started to 
address this through consultations with  the judiciary, legal professions and civil society and 
the Government has indicated its intent to adopt relevant amendments. However, none of the 
proposed changes have yet translated into legislative amendments and such delays can result 
in divergent interpretations. Responding swiftly and consistently to the need to adapt laws to 
reflect Constitutional Court rulings should be an important priority, without compromising on 
the quality of the preparation of the amendments. The Government has expressed its intention 
to translate the  Constitutional Court decisions into a new set of amendments.  

The  recommendation  also  covers  the  finalisation  of  the  reform  of  the  Code  of  Civil 
Procedures.  In  December  2016,  a  new  deadline  of  January  2019  was  set  for  the  entry  into 
application  of  the  remaining  provisions  of  this  Code.  Discussions  between  the  Minister  of 
Justice, the Superior Council of the Magistracy and the High Court of Cassation and Justice 
are underway. The first steps to provide for the necessary infrastructure for the new Council 
Chambers have been taken and the Minister of Justice is finalising a plan for adoption by the 
Government. Regarding the stability of the Civil Codes, Constitutional Court  decisions also 
create  challenges.  In  particular,  a  recent  ruling  of  the  Constitutional  Court  concerning  the 
threshold previously in place to limit the possibility for second instance appeal could result in 
a major extra case load for the High Court of Cassation and Justice.16 The Minister of Justice 
is looking at ways to mitigate the impact on the workload of the High Court, with more cases 
to  be  handled  by  lower  courts.  The  High  Court  already  faces  a  heavy  workload  and  the 

14   The  progress  reports  from  the  Government  and  the  Parliament  do  not  mention  progress  on  these  pending 

proposals. 

15   Three  deeds  out  of  four  have  been  decriminalised.  See  also  Technical  Report  SWD(2017)  701.  This 

amendment was not subject to consultation with the judicial authorities. 

16   Decision no 369/2017, published in the Romanian Official Gazette, Part I, no. 582 on 20th July 2017. 

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January  report  underlined  the  importance  of  its  work  on  cassation  and  interpretation  of  the 
law.17 

Transparency  and  predictability  of  the  legislative  process  for  legislation  on  judicial  reform 
and anti-corruption 

Since  the  January  report,  there  have  been  a  series  of  cases  raising  concerns  about  the 
transparency and predictability of the legislative process, whether initiated by the Government 
or the Parliament. Several measures and amendments have been adopted by Parliament with 
little  or  no  opportunity  for  consultation  and  public  debate.18  Other  problematic  and 
uncoordinated  proposals  have  been  introduced  and  while  many  never  progress  in  the 
parliamentary  process,  the  fact  that  they  remain  on  the  parliamentary  table  introduces  an 
important  level  of  uncertainty:  examples  include  the  law  on  pardons  or  on  the  liability  of 
magistrates.  

Civil society has also been an important voice to highlight potential consequences for judicial 
reform and the fight against corruption. The current controversy around the Justice laws will 
be  an  important  test  of  the  extent  to  which  the  legitimate  interests  of  judicial  and  other 
stakeholders are given an opportunity to be voiced, and are taken sufficiently into account, in 
the final decisions.  

One initiative to help remedy this situation was made by the President of the Legal Committee 
of the Senate, who invited the Minister of Justice and the Superior Council of the Magistracy 
to  set  up  a  permanent  dialogue  between  State  institutions  on  amendments  to  the  criminal 
codes and other important legislation. The objective was to set up a predictable amendment 
process, ensuring debate and public consultation. The Parliament has taken up the idea and at 
the  start  of  October,  it  created  a  Special  Parliamentary  Committee  on  Systematisation, 
Unification and Ensuring Legislative Stability in the Judiciary.  

For the fulfilment of recommendation 4, this Committee will need to demonstrate its capacity 
to  build  trust  between  the  Parliament,  the  Government  and  the  judiciary  and  to  facilitate 
constructive cooperation on key legislation. This Committee has the opportunity to resolve the 
uncertainty surrounding  the  Codes  and  underlying  recommendation  3, through  a  consensual 
adoption of amendments preserving the progress brought by the reforms of these four codes. 
The  Committee  could  also  help  to  ensure  a  consistent  process  to  provide  legal  certainty 
following decisions of the Constitutional Court. 

Recommendation  5:  The  Government  should  put  in  place  an  appropriate  Action  Plan  to 
address the issue of implementation of court decisions and application of jurisprudence of the 
courts  by  public  administration,  including  a  mechanism  to  provide  accurate  statistics  to 
enable future monitoring. It should also develop a system of internal monitoring involving the 
Superior  Council  of  the  Magistracy  and  Court  of  Auditors  in  order  to  ensure  proper 
implementation of the Action Plan. 

Recommendation  6:  The  Strategic  Judicial  Management,  i.e.  the  Minister  of  Justice,  the 
Superior  Council  Of  the  Magistracy,  the  High  Court  of  Cassation  and  Justice  and  the 
Prosecutor-General should ensure the implementation of the Action Plan as adopted and put 

17   COM (2016) 41, COM (2017) 16. 
18   For example, the modification of the incompatibility regime for MPs and removing most conflicts of interest 
from criminalisation. In addition, there are other examples of legislation adopted without consultation which 
has  also  impact  on  the  justice  system  and  the  fight  against  corruption  such  as  the  on  the  status  of  local 
administrations, the law on financing of political parties and a proposal to allow the review of all judgements 
of the last 20 years, the latter being eventually squashed by the Constitutional Court.  

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in  place  regular  common  public  reporting  on  its  implementation,  including  solutions  to  the 
issues of shortages of court clerks, excessive workload and delays in motivation of decisions. 

Respect for court decisions 

This recommendation concerns enforcement of decisions against the State, in which a public 
institution  has  to  pay  an  amount  of  money  or  to  fulfil  an  action  following  a  court  decision. 
The  Minister  of  Justice  has  acknowledged  that  the  effective  implementation  of  all  court 
decisions against the State is essential. 

At  the  end  of  August,  Romania  updated  its  2016  action  plan,  prepared  for  the  Council  of 
Europe  in  order  to  address  the  structural  problems  of  non-enforcement  of  court  decisions 
against the State identified by European Court of Human Rights.19 

The implementation of this action plan would largely  address recommendation  5. To assess 
the extent of progress on implementing this recommendation, the Commission looks forward 
to receiving concrete solutions and a detailed timetable to address the problems identified. 

The other action needed to implement this recommendation is to develop procedures within 
the  public  administration  to  ensure  that  the  public  administrations  consistently  apply  the 
solution provided by the courts in similar cases when there has been a final appeal decision or 
an  interpretative  decision  from  the  High  Court  of  Cassation  and  Justice.  Such  a  procedure 
would reduce the risk of repetitive cases going to court and increase the confidence of citizens 
and businesses in the decisions of public administrations. 

Structural reforms to the judicial system 

After a delay earlier in the year, the Judicial Strategic Management Council met in June and 
September  2017.  In  the  last  meeting,  an  overall  monitoring  of  the  implementation  of  the 
action  plan on  the  Strategy  for  the Development  of  the  Judiciary  2015-2020,  with  quarterly 
reports, was set up. Individual judicial institutions report that they are implementing the action 
plan, and the Ministry of Justice has successfully applied for EU structural funds to finance 
the action plan. These steps would need to be accompanied by clear monitoring and regular 
use  of  the  Council  as  a  real  coordination  body  to  foster  dialogue  and  cooperation  on  the 
common issues that affect the functioning of the judicial system. 

Recommendation 7: The new Superior Council of the Magistracy should prepare a collective 
programme for its mandate, including measures to promote transparency and accountability. 
It  should  include  a  strategy  on  outreach,  with  regular  open  meetings  with  assemblies  of 
judges  and  prosecutors  at  all  levels,  as  well  as  with  civil  society  and  professional 
organisations, and set up annual reporting to be discussed in courts' and prosecutors' general 
assemblies. 

Transparency and accountability of the Superior Council of the Magistracy  
On 6 January 2017, the new Council started its activity.20 The new Council has had to face 
challenging  circumstances.  It  has  however  shown  its  readiness  to  take  difficult  decisions 
through  the  negative  opinions  on  the  Executive  Ordinance  in  February,  and  again  on  the 
amendments to the laws on Justice in September and November. The Council has also faced 
the need to defend the independence and reputation of magistrates, in particular prosecutors, 

19   Technical report SWD(2017) 701. Proposal made to the Council of Europe Committee of Ministers. 

20   After  several  adjournments,  the  Senate  appointed  the  two  members  of  the  Superior  Council  of  Magistracy 

representing the civil society in early September. 

7 

 
 
                                                            
and the complication of receiving repeated disciplinary or managerial complaints against the 
same magistrates from other State powers. The Council can therefore be seen to have fulfilled 
its tasks and showed the strength and resilience of the institution.  

In  line  with  the  recommendation,  at  the  end  of  February  2017,  the  Superior  Council  of  the 
Magistracy  set  out  its  priorities  for  its  mandate  (2017–2022).  They  provide  a  first  basis  to 
promote  the  accountability  of  the  institution.  The  Council  has  taken  measures  to  promote 
transparency  and  openness,  such  as  a  new  website,  and  the  direct  participation  of 
representatives of courts, magistrates' professional associations or NGOs in Council meetings. 
The  Council  has  also  organised  ongoing  consultations  of  courts  and  prosecutor’s  offices, 
which has proved an important channel for communication and consultation. The Council is 
also  working  on  a  collective  programme  and  strategy  which  will  cover  areas  including 
outreach,  measures  to  improve  the public image  of  the  judiciary,  relations  with  mass-media 
and the cooperation with the Government and the Parliament. 

The  Council  should  continue  to  consolidate  its  work  to  defend  the  reputation  of  the 
magistracy  in  a  consistent  and  effective  way,  and  to  contribute  to  a  constructive  and 
transparent dialogue with the Government and Parliament. The Council should also promote 
further  strengthening  of  cooperation between  judicial  institutions  on  key  outstanding  issues, 
including the functioning of the Judicial Inspection.  

On the basis of an analysis of recommendations 1 to 7, the Commission considers that further 
work  is  needed  to  fulfil  benchmark  one.  Several  positive  developments  have  taken  place,  in 
particular  in  relation  to  the  codes  of  conduct,  the  Civil  Codes,  as  well  as  steps  taken  to 
implement the Strategy for the Developments of the Judiciary and in relation to the activities 
of  the  new  Superior  Council  of  Magistracy.  However,  the  political  situation  and  legislative 
proposals that risk having a negative impact on reform have held back progress. The analysis 
of  the  recommendations  points  at  several  initiatives  and  processes  that,  if  carried  through, 
offer promising possibilities for Romania to swiftly resume progress under benchmark one.  

3.2.   Benchmark two: Integrity framework and the National Integrity Agency 

Recommendation 8: Ensure the entry into operation of the PREVENT system. The National 
Integrity Agency and the National Public Procurement Agency should put in place reporting 
on the ex-ante checks of public procurement procedures and their follow-up, including ex post 
checks,  as  well  as  on  cases  of  conflicts  of  interest  or  corruption  discovered,  and  the 
organisation  of  public  debates  so  that  the  government,  local  authorities,  the  judiciary  and 
civil society are invited to respond. 

Recommendation  9:  The  Parliament  should  be  transparent  in  its  decision-making  with 
regard  to  the  follow-up  to  final  and  irrevocable  decisions  on  incompatibilities,  conflicts  of 
interests and unjustified wealth against its members. 

The  PREVENT  system  is  designed  to  prevent  conflicts  of  interests  in  public  procurement 
procedures  by  setting  up  an  ex-ante  verification  mechanism  and  allowing  the  contracting 
authorities to remedy these situations prior to the award of the contract. The system entered 
into operation at the end of June. It is the result of a close collaboration between the National 
Integrity Agency, the Agency for Public Procurement and the Digital Agenda Agency, as well 
as with the Government. It has now been operating for four months and is delivering its first 
results.  

8 

 
 
 
Successive  CVM  reports  have  highlighted  the  delay  and  inconsistency  of  application  of 
sanctions for Members of Parliament found incompatible or in conflict of interest following a 
final  court  decision  on  a  report  of  the  National  Integrity  Agency.  The  Commission  had 
therefore recommended that the Parliament should be transparent in its decision-making with 
regard  to  the  follow-up  to  final  and  irrevocable  decisions  on  incompatibilities,  conflicts  of 
interests  and  unjustified  wealth  against  its  members.  The  Commission  has  received 
information  on the applicable  procedures and on the publicity of parliamentary debates,  but 
not yet on whether debates and decisions have indeed been taken on pending cases. Although 
the  rules  and  procedures  in  Parliament  to  apply  sanctions  seem  to  be  clear,  the  National 
Integrity Agency reports that there are three pending cases of Members of Parliament where 
final integrity decisions ruled by the courts in 2017 have still not been implemented. It is not 
clear whether there are deadlines for the Parliament to implement the sanction. Furthermore, 
there  are  also  three  cases  of  Members  of  Parliament  whose  mandates  have  been  confirmed 
after the elections at the end of 2016 despite the fact that they are under a three-year ban from 
occupying an elected function following a final court decision. The National Integrity Agency 
informed  the  Parliament  in  February  2017,  but  the  Parliament  has  not  yet  taken  steps  to 
resolve these three cases. 

Concrete steps which could give reality to the transparency proposed in the recommendation 
would  be  for  example  that  the  President  of  the  respective  chamber  of  Parliament  publically 
acknowledges receipt of the final court decision (or a report of the National Integrity Agency 
which has not been challenged in court); announcing a calendar for decision; and providing 
information to the public and to the National Integrity Agency once this decision process is 
completed. Action from the Parliament on these six cases would allow rapid positive progress 
on this recommendation. 

On  the  basis  of  an  analysis  of  recommendations  8  and  9,  the  Commission  considers  that 
overall  Romania  has  made  significant  progress  on  benchmark  two.  The  implementation  of 
recommendation  8  is  satisfactory.  Rapid  decision  on  all  outstanding  cases  of  Members  of 
Parliament  subject  to  final  integrity  decisions  would  allow  rapid  positive  progress  on 
benchmark two. 

3.3   Benchmark three: Tackling High-level corruption 

Recommendation  10:  Adopt  objective  criteria  for  deciding  on  and  motivating  lifting  of 
immunity  of  Members  of  Parliament  to  help  ensure  that  immunity  is  not  used  to  avoid 
investigation  and  prosecution  of  corruption  crimes.  The  government  could  also  consider 
modifying  the  law  to  limit  immunity  of  ministers  to  time  in  office.  These  steps  could  be 
assisted by the Venice Commission and GRECO.21 The Parliament should set up a system to 
report  regularly  on  decisions  taken  by  its  Chambers  on  requests  for  lifting  immunities  and 
could organise a public debate so that the Superior Council of Magistracy and civil society 
can respond. 

Recommendation 10 concerns the accountability of the Parliament in its decisions on requests 
from  the  prosecution  to  authorise  preventative  measures  such  as  searches  or  arrest  and  on 
requests to authorise the investigation of Members of Parliament when they are or have been a 
Minister  (referred  to  as "lifting  of  immunity").  Previous  CVM  reports have  highlighted  that 
such  decisions  had  appeared  to  the  public  as  attempts  to  limit  or  avoid  investigation  and 

21   The  Group  of  States  against  Corruption  (GRECO)  was  established  in  1999  by  the  Council  of  Europe  to 

monitor compliance with the organisation’s anti-corruption standards. 

9 

 
                                                            
prosecution  of  corruption  offences.  Therefore  having  criteria  for  deciding  on  such  requests 
from  the  prosecution  is  one  way  of  being  able  to  show  that  decisions  have  an  objective 
basis.22  

Three recent requests for lifting immunities of Members of Parliament were rejected. In a step 
to improve transparency, the Chamber of Deputies has started to release the arguments of the 
Legal Committee for rejection or agreeing before the plenary vote. In two cases the arguments 
for  rejection  invoked  by  the  Legal  Committee  was  that  the  deeds  have  no  legal  ground  – 
though opposition parties challenged this on the grounds that only judges can assess whether a 
person has committed a crime. The Commission welcomes the fact that consideration is given 
to  the  need  for  more  transparency  on  the  follow  up  to  requests  from  the  prosecution  but 
considers  that  more  work  is  needed  on  recommendation  10.  It  reiterates  its  advice  to  seek 
assistance of the Venice Commission and GRECO who are in the position to provide valuable 
expertise on practices in this area.  

In the January report, the Commission  made clear that weakening or shrinking the scope of 
corruption  as  an  offence,  or  major  challenges  to  the  independence  and  effectiveness  of  the 
anti-corruption prosecution office, would constitute backtracking.  

The  Commission  considers  that  more  work  is  needed  on  recommendation  10.  Overall,  a 
positive  assessment  of  progress  under  benchmark  three  relies  on  an  independent  National 
Anti-Corruption Directorate to be in a position to perform its activities with all the tools at its 
disposal  and  maintain  its  track  record.  In  previous  reports,  the  fact  that  the  National  Anti-
Corruption  Directorate  had  maintained  its  track  record  in  the  face  of  intense  pressure  was 
noted as a sign of sustainability. For this reason, the Commission limited its recommendation 
under benchmark three to a single one. Were that pressure to start to harm the fight against 
corruption, the Commission may have to reassess this conclusion. 

3.4 

Benchmark four: Tackling Corruption at all levels 

Recommendation  11:  Continue  to  implement  the  National  Anti-corruption  Strategy, 
respecting the deadlines set by the government in August 2016. The Minister of Justice should 
put  in  place  a  reporting  system  on  the  effective  implementation  of  the  National  Anti-
corruption  Strategy  (including  statistics  on  integrity  incidents  in  public  administration, 
details of disciplinary procedures and sanctions and information on the structural measures 
applied in vulnerable areas). 

Recommendation 12: Ensure that the National Agency for the Management of Seized Assets 
is  fully  and  effectively  operational  so  that  it  can  issue  a  first  annual  report  with  reliable 
statistical  information  on  confiscation  of  criminal  assets.  The  Agency  should  put  in  place  a 
system to report regularly on development of administrative capacity, results in confiscation 
and managing criminal assets.  

National Anti-Corruption Strategy 

The  National  Anti-Corruption  Strategy  2016-2020  (NAS)  presented  by  the  Government  in 
August 2016 has the potential to be an effective corruption prevention policy if it is properly 
implemented  and  followed  up  on  the  ground.  The  strategy  is  addressed  to  central  and  local 
public institutions. At technical level, the Strategy's technical secretariat within the Ministry 
of  Justice  has  pursued  implementation.  A  positive  development  is  that  a  high  number  of 

22   Based on guidelines from the Venice Commission and GRECO. 

10 

 
 
                                                            
public institutions have decided to participate in the Anti-Corruption Strategy. A large part of 
the year was devoted to the development of integrity plans within each public institution and 
the  set-up  of  the  first  peer-review  monitoring  cycle.  Other  institutions  such  as  the  National 
Integrity Agency, and the judicial anti-corruption police from the Ministry of Interior are also 
involved in prevention measures.23 The Strategy will also be supported by EU funds. The first 
reporting  on  the  implementation  of  the  measures  will  take  place  at  the  beginning  of  2018, 
which will then provide a comprehensive view of progress. 

As  the  implementation  of  the  anti-corruption  strategy  has  kicked-off  at  technical  level,  the 
strategy  now  needs  visible  political  support  from  the  Government  and  local  authorities  to 
demonstrate progress, as it was the case when the initial strategy was implemented and efforts 
were  made  to  spread  best  practice  and  encourage  public  bodies  to  devote  resource  and 
attention to anticorruption work. Ministers responsible for central and public administration, 
and Ministers in key sectors such as Education or Health, could play a particularly important 
role. In June, the Minister of Justice invited the two Chambers of Parliament to sign a joint 
statement supporting the National Anti-Corruption Strategy 2016-2020. This has not yet taken 
place.  In  general,  a  political  priority  should  be  set  on  corruption  prevention,  notably  by 
putting  in  place the  necessary  measures to  fully support  the implementation  of  the  National 
Anti-Corruption Strategy at central and local level, ensuring the stability of the relevant legal 
framework, as well as maintaining the positive track record of the General Prosecution. 

National Agency for the Management of Seized Assets 

The  National  Agency  for  the  Management  of  Seized  Assets  (ANABI)  is  now  fully 
operational. The Agency published its first annual report in February 2017 and with the help 
of the fiscal administration, was able to pin down the total sums of money resulting from the 
selling  of  confiscated  assets  in  2016  (about  EUR  5  million),  part  of  which  is  to  be 
redistributed for social and public re-use. The first call for proposal will be launched in 2018.  

The January 2017 report highlighted that the Agency should eventually contribute to increase 
the  proportion  of  assets  effectively  recovered.  This  work  is  already  under  way,  with  the  
collection of data from all courts and with the launch of a project to keep track of all relevant 
court  decisions  in  relation  to  confiscation  of  criminal  assets,  linked  with  the  execution 
database from the fiscal administration. This project should be complete by the end of 2018 
and should provide a clearer picture, so that appropriate measures can be taken to increase the 
proportion of assets effectively recovered.  

The  next  annual  report  of  National  Agency  for  the  Management  of  Seized  Assets  in  2018 
should give clear indications on the results achieved by the agency in 2017. 

The Commission considers that more work is still needed to progress towards the completion 
of benchmark four. The Commission considers that stronger political priority should be given 
to  promote  corruption  prevention  and  support  the  implementation  of  the  National  Anti-
Corruption  Strategy,  and  concrete  indications  that  corruption  prevention  is  taking  root  are 
needed  for  the  implementation  of  recommendation  11.  Concerning  recommendation  12,  if 
good  operational  results  are  confirmed,  this  would  allow  the  Commission  to  conclude  this 
recommendation is fulfilled. 

23      As  reported  in  a  Report  on  the  progress  registered  by  Romania  in  the  framework  of  the  Cooperation  and 

Verification Mechanism provided by the Ministry of Justice, September 2017. 

11 

 
 
                                                            
4. CONCLUSION  

in  particular 

During  the  nine-month  period  since  the  January  2017  report  setting  out  the  key 
recommendations to fulfil all CVM benchmarks, progress has been achieved on a number of 
recommendation  8,  which  has  been  satisfactorily 
recommendations, 
implemented,  and,  subject  to  practical  application,  recommendations  2,  7  and  12.  While 
progress  in  meeting  some  recommendations  was  advancing  well,  the  reform  momentum  in 
course  of  2017  was  lost  overall,  slowing  down  the  fulfilment  of  the  remaining 
recommendations, and with the risk of re-opening issues which the January 2017 report had 
considered as fulfilled. Challenges to and questioning judicial independence have also been a 
persistent source of concern. 

On this basis, though progress has brought some benchmarks closer to the point of fulfilment, 
the Commission cannot yet conclude that any of the benchmarks are at this stage satisfactorily 
fulfilled. The Commission remains of the opinion that with loyal cooperation between State 
institutions,  a  political  steer  holding  firm  to  past  achievements  and  with  respect  for  judicial 
independence,  Romania  will  be  able 
remaining  outstanding  CVM 
to 
recommendations in the near future.  

fulfil 

the 

The  Commission  invites  Romania  to  implement  the  necessary  actions  and  fullfil  all 
recommendations, and will assess progress again towards the end of 2018. 

12