REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Cooperation and Verification Mechanism
Date: 2019-10-22
Institutions: European Commission, Secretariat-General
Subjects: Romania, conflict of interest, corruption, criminal law, independence of the judiciary, judicial reform, public procurement, rule of law

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 22.10.2019  COM(2019) 499 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL On Progress in Romania under the Cooperation and Verification Mechanism {SWD(2019) 393 final}  
 
 
1. 

INTRODUCTION  

The  Cooperation  and  Verification  Mechanism  (CVM)  was  established  at  the  accession  of 
Romania  to  the  European  Union  in  2007  as  a  transitional  measure  to  facilitate  Romania’s 
continued  efforts  to  reform  its  judiciary  and  step  up  the  fight  against  corruption.1  It 
represented  a  joint  commitment  of  the  Romanian  State  and  of  the  EU.  In  line  with  the 
decision setting up the mechanism and as underlined by the Council, the CVM ends when all 
the benchmarks applying to Romania are satisfactorily met.2  

The CVM has been working since 2007 to encourage and follow the reform process on these 
issues. In January 2017, the Commission undertook a comprehensive assessment of progress 
over the ten years of the mechanism.3 This perspective gave a clearer picture of the significant 
progress  made  since  accession,  and  the  Commission  was  able  to  set  out  twelve 
recommendations whose realisation would suffice to end the CVM process, and which could 
be  met  under  this  Commission's  mandate.  Ending  the  CVM  would  depend  on  fulfilling  the 
recommendations in an irreversible way, but also on the condition that developments were not 
such as to clearly reverse the course of progress.  

Since  then,  the  Commission  has  carried  out  two  assessments  of  progress  on  the 
implementation of the recommendations. In November 2017,4 the Commission noted progress 
on a number of the recommendations, but also that the reform momentum had been lost in the 
course of 2017. It warned about the risk of re-opening issues which the January 2017 report 
had considered as fulfilled. These concerns were echoed by the Council.5 
In the November 2018 report,6 the Commission concluded that developments had reversed or 
called  into  question  the  irreversibility  of  progress.  As  a  result,  the  twelve  recommendations 
set  out  in  the  January  2017  report  were  no  longer  sufficient  to  close  the  CVM  and  eight 
additional  recommendations  had  to  be  made.  The  report  called  on  the  key  institutions  of 
Romania to demonstrate a strong commitment to judicial independence and the fight against 
corruption  as  indispensable  cornerstones,  and  to  restore  the  capacity  of  national  safeguards 
and checks and balances to act when there is a risk of a backwards step. Both the European 
Parliament and the Council supported this view. The European Parliament issued a resolution 
calling  for  cooperation  and  citing  the  risk  to  the  rule  of  law.7  The  Council  conclusions  of 

1   Following  the  conclusions  of  the  Council  of  Ministers,  17  October  2006  (13339/06),  the  Mechanism  had 

been established by a Commission Decision of 13 December 2006 (C(2006) 6569). 

2   Council  Conclusions  on 

the  Cooperation  and  Verification  Mechanism,  12  December  2017  - 
to 

https://ec.europa.eu/info/sites/info/files/20171212-st15587_en.pdf.  The  four  benchmarks  applying 
Romania are set out in the accompanying Technical Report page 1. 
3  
  COM (2017) 44 - https://ec.europa.eu/info/files/progress-report-romania-2017-com-2017-44_en.  
4       COM(2017) 751 - https://ec.europa.eu/info/files/progress-report-romania-2017-com-2017-751_en. 
5  

the  Cooperation  and  Verification  Mechanism,  12  December  2017  - 

  Council  Conclusions  on 
https://ec.europa.eu/info/sites/info/files/20171212-st15587_en.pdf. 

6   COM(2018)  851  final  -  https://ec.europa.eu/info/sites/info/files/progress-report-romania-2018-com-2018-

com-2018-851_en.pdf  

7      European  Parliament  non-legislative  resolution  on  the  rule  of  law  in  Romania  of  13  November  2018, 
P8_TA-PROV(2018)0446. This called on the Romanian Parliament and Government to address the issues 
on  the  basis  of  a  transparent  and  inclusive  process  and  to  cooperate  with  and  to  fully  implement  all 
recommendations of the European Commission, the Council of Europe’s Group of States against Corruption 
(GRECO) and Venice Commission, and to refrain from any reform which would put at risk respect of the 
rule of law, including the independence of the judiciary. 

1 

 
                                                            
December  2018 
recommendations.8 

specifically  called  on  Romania 

to 

implement 

the  additional 

This report takes stock of the situation since November 2018. In this period, the Commission 
has had to raise rule of law-related concerns a number of times, specifically voicing concerns 
on backtracking from the progress made in previous years. For much of this period, there was 
little  or  no  willingness  on  the  part  of  Romanian  authorities  to  engage  with  the  additional 
recommendations of November 2018 – or indeed with recommendations issued by the Venice 
Commission and the Council of Europe’s Group of States against Corruption.9 The efforts of 
those seeking to  reverse the negative trend  – which  have included  not only  political voices, 
but also civil society and magistrates – have not been able to prevail. This led to fundamental 
doubts  about  whether  the  checks  and  balances  recognised  in  the  January  2017  report  were 
working. In May 2019, the Commission addressed a letter to the Romanian authorities setting 
out  how  recent  developments  had  further  exacerbated  the  existing  problems  regarding  the 
respect  for  the  rule  of  law  in  general.  It  raised  the  prospect  that  if  the  situation  did  not 
improve, the Commission would have to take steps under the rule of law framework.10 In June 
2019,  in  a  meeting  with  President  Juncker  and  First  Vice-President  Timmermans,  the 
Romanian Prime Minister committed not to pursue the controversial judicial reforms and to 
immediately  resume  dialogue  under  the  CVM  in  order  to  progress  on  judicial  reforms  and 
fight  against  corruption.  This  changed  approach  was  also  in  tune  with  the  results  of  a 
referendum  in  May  2019,  called  by  the  President  of  Romania,  in  which  an  overwhelming 
majority  of  Romanian  citizens  supported  propositions  to  strengthen  the  safeguards  against 
corruption and the arbitrary use of emergency ordinances.11 

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  on  the 
input of other Member States, and of civil society and other stakeholders. 

2.   GENERAL SITUATION 

The  January  2017  report  noted  that  there  were  broader  societal,  legal  and  political  factors 
which, although not within the scope of the CVM and not covered by its recommendations, 
‘have  a  direct  bearing  on  the  ability  to  deliver  reform  and  in  particular  have  made  it  more 
difficult for Romania to show that reform has taken root on a permanent basis’. Points noted 

9  

8   The Council Conclusions of 12 December 2018 called on Romania ‘to restore the positive momentum on 
reforms and take prompt action, notably on the additional key recommendations set out by the Commission 
related to the independence of the judiciary and judicial reform, to the fight against corruption at all levels, 
as well as on other integrity issues highlighted in the report’ (https://ec.europa.eu/info/sites/info/files/2018-
st15187_en.pdf:). 
In particular, Venice Commission opinions 924/2018 on the Justice laws amendments and 930/2018 on the 
Criminal Codes amendments. GRECO AdHocRep(2018) 2 on the Justice laws amendments. 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. 

10   The  Rule  of  Law  Framework  was  set  out  by  the  Commission  in  2014  to  prevent  the  emergence  of  a 
systemic threat to the rule of law, at which point an Article 7 TEU procedure would be required. It provides 
a staged process of dialogue with a Member State, structured with opinions and recommendations from the 
Commission. The scope of the Rule of Law Framework is broader than the CVM benchmarks and covers all 
aspects of the rule of law. 

11   The referendum on justice called by the President of Romania took place on 26 May with a participation 
rate  of  above  40%.  Over  80%  of  electors  voted  in  favour  of  banning  amnesty  and  pardon  for  corruption 
offenses and 81% voted in favour of banning the adoption by the Government of emergency ordinances in 
the area of crimes, punishments and judiciary organisation, as well as with extending the right to challenge 
ordinances directly at the Constitutional Court. 

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included  a  legislative  practice  still  to  develop  better  regulation  principles,  a  confrontational 
atmosphere  between  state  actors,  and  the  media  environment.  Subsequent  reports  have 
confirmed these factors as having a clear negative impact on the advance of judicial reform 
and the fight against corruption.   

Developments  since  the  last  report  have  shown  again  that  major  legislative  changes,  also 
outside  the  justice  domain,  rushed  through  using  urgency  procedures  with  minimal 
consultation,  have  damaged  both  the  quality  of  legislation  and  public  confidence  in  policy-
making.  Judges  and  prosecutors  have  continued  to  face  misleading  coverage  and  unduly 
personal attacks in the media, with mechanisms for redress falling short, ultimately affecting 
the reputation and the credibility of the justice system as a whole. Different branches of the 
State  have  again  been  in  conflict,  and  increasingly  these  divisions  are  played  out  in  the 
Constitutional  Court,  further  increasing  tensions  and  showing  that  loyal  cooperation  falls 
short.    

The  debates  on  the  cooperation  agreements  between  the  judicial  institutions  and  the 
Romanian  Intelligence  Services  (‘secret  protocols’)12  continue  to  be  divisive.  A  decision  by 
the  Constitutional  Court  has  paved  the  way  for  the  courts  to  deal  with  ongoing  and  future 
cases, but there is still uncertainty about the actual impact. The Commission can only reiterate 
that  the  goal  should  be  a  framework  where  the  intelligence  services  are  under  proper 
democratic  oversight,  where  crimes  can  be  effectively  investigated  and  sanctioned  in  full 
respect  of  fundamental  rights,  and  where  the  public  can  have  confidence  that  judicial 
independence  is  secure. The  Commission  recalls  its  previous  suggestion that  expertise  from 
other  Member  States  could  be  valuable  in  building  a  stronger  system  for  technical 
surveillance  measures  used  by  the  prosecution  and  for  the  collaboration  between  the 
intelligence services and the prosecution essential for pursuing serious crime such as terrorism 
and cybercrime.13 

The  EU’s  approach  to  the  rule  of  law,  beyond  the  scope  of  the  CVM,  also  influences  the 
broader  environment  at  EU  level.  Effective  judicial  protection  by  independent  courts  is 
required  by  Article  19(1)  TEU  as  a  concrete  expression  of  the  value  of  the  rule  of  law,  as 
confirmed  by  the  European  Court  of  Justice’s  recent  case  law.  The  Commission’s 
Communication of July 201914 sets out concrete actions to strengthen the Union’s capacity to 
promote and uphold the rule of law, to prevent rule of law concerns from arising through the 
establishment of a rule of law review cycle to monitor developments in Member States, and to 
provide an effective response. The Political Guidelines for the next Commission have set out 
the intention to put in place a comprehensive rule of law mechanism with an EU-wide scope 
and objective reporting for all Member States.15 The deepening of such horizontal processes 
monitoring the rule of law in all Member States, and the perspective of their further evolution, 
underline the specific nature of the CVM as a monitoring process limited both in terms of the 
Member States concerned, and the issues covered. Such horizontal processes monitoring the 
rule  of  law  in  all  Member  States  would  serve  to  provide  a  basis  for  further  EU  support  to 
reform  in  Romania,  once  the  Commission  assesses  progress  has  been  sufficient  to  meet  the 
commitments made by the time of its accession to the EU. In the meantime, issues relevant to 

12   See 2018 progress report, p.2. 
13   The operation of intelligence services is not a matter for the EU and falls outside the CVM benchmarks. 
14     Strengthening  the  rule  of  law  within  the  Union  -  A  blueprint  for  action,  COM/2019/343  final.  This  will 

complement the 2014 rule of law framework     

15     Political guidelines for the next Commission (2019-2024) - "A Union that strives for more: My agenda for 
Europe"  p.  14-15,  see  https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-
commission_en.pdf.  

3 

 
                                                            
the  rule  of  law,  but  not  within  the  scope  of  the  CVM,  would  be  addressed  under  the  new 
mechanism.  

3.  ASSESSMENT  OF  PROGRESS  ON  THE  FULFILMENT  OF  THE 

RECOMMENDATIONS  

This section assesses progress on the 12 recommendations of January 2017 and on the eight 
additional  recommendations  of  November  2018.  The  fulfilment  of  these  additional 
recommendations  remains  essential  to  put  the  reform  process  back  on  track,  redress  the 
negative  effects  of  the  backtracking  identified  in  November  2017  and  November  2018  and 
resume progress towards the completion of the CVM.  

3.1.   Benchmark One: Judicial independence and Judicial reform 

3.1.1.  The November 2018 recommendations: putting the reform process back on track 

Justice laws and legal guarantees for judicial independence 

The November 2018 report noted that the amended Justice laws which entered in force in July 
and  October  2018  could  result  in  pressure  on  judges  and  prosecutors,  and  ultimately 
undermine the independence, efficiency and quality of the judiciary. Rather than addressing 
issues raised in previous CVM reports, the laws had introduced new risks, notably through the 
Special Section to investigate magistrates, as well as the disciplinary and liability regime. As 
a  result,  the  Commission  concluded  that  the  laws  represented  a  step  backwards  from  the 
January 2017 assessment, and proposed a pause for consideration by freezing the entry into 
force of the changes.  

The November 2018 report recommended to: 
• 

Suspend immediately the implementation of the Justice laws and subsequent Emergency 
Ordinances. 

•  Revise  the  Justice  laws  taking  fully  into  account  the  recommendations  under  the  CVM 

and issued by the Venice Commission and GRECO.  

These recommendations were not followed by the Romanian authorities, who also argued that 
the justice laws had legal effects which could not be halted.  

The objective of the recommendation was to address the substance of the problems created by 
the laws, and subsequent steps exacerbated these problems. In addition to the three emergency 
ordinances adopted in September and October 2018, in early 2019 the Government adopted 
two  further  emergency  ordinances  modifying  the  justice  laws.16  As  in  previous  cases,  the 
speed  of  adoption,  lack  of  consultation  and  unclear  rationale  behind  these  emergency 
ordinances affected the legal certainty and predictability of the judicial process. Amendments 
to  accelerate  the  setting  up  of  the  Special  Section  to  investigate  crimes  committed  by 
magistrates  and  extend  its  competence,  or  successive  changes  to  the  requirements  and 
procedural  rules  to  appoint  prosecutors  (including  management)  in  the  National  Anti-
corruption  Directorate  (DNA)  further  increased  the  concerns  and  the  lack  of  trust  in  these 
amendments.17  In  particular,  some  of  the  amendments  appeared  to  have  changed  the  law  to 
serve the interests of specific persons.18,19 These emergency ordinances sparked very negative 

16     Emergency Ordinances No.7/2019 of 20 February 2019 and No.12/2019 of 5 March 2019. 
17     See also the Technical report for more details on the amendments. 
18     Examples include: Increasing retroactively the seniority requirements for prosecutors, which barred certain 
persons  from  certain  posts;  lowering  the  requirements  and  modifying  the  appointment  procedures  for  the 

4 

 
 
                                                            
 
reactions,  which  contributed  to  the  specific  reaction  of  the  public,  in  the  referendum  of  26 
May 2019, to the amendment of laws in the field of justice via emergency ordinances.   

The implementation of the amended justice laws in practice has also confirmed the concerns 
raised in the November report in terms of the damage to the judicial system. In particular, the 
operation  of  the  Special  Section  for  the  investigation  of  offences  committed  by  magistrates 
has confirmed the fear voiced both inside and outside Romania that the section could be used 
as an instrument of political pressure.20 There are various examples where the Special Section 
exercised its powers to change the course of criminal investigations in a manner which raises 
serious doubts about its objectivity.21 These examples include cases where the Special Section 
launched investigations against judges and prosecutors who had opposed the current changes 
to the judicial system, as well as abrupt changes in the approach followed in pending cases, 
such  as  the  withdrawal  of  appeals  previously  lodged  by  the  DNA  in  high-level  corruption 
cases.22  Management  appointments  to  the  Special  Section  have  also  been  the  cause  of 
controversy.  The  result  has  been  calls  from  many  stakeholders  in  Romania  that  the  Special 
Section should be disbanded.23 
The  Venice  Commission  adopted  an  opinion  on  the  emergency  ordinances  in  June  2019,24  
confirming the additional concerns raised by the new amendments25 and by the functioning of 
the Special Section. In two new reports of June 2019, GRECO raised similar concerns.26 

In July 2019, the Minister of Justice expressed a willingness to identify appropriate legislative 
solutions,  in  consultation  with  the  judiciary  and  the  Parliament,  as  part of  a  new  process  of 
structured  consultation.27  However,  later  statements  from  the  Government  leadership 

management  of  the  Special  Section,  which  allowed  certain  persons  to  be  appointed;  and  endorsement  of 
nominations  of  top  prosecutors  by  the  Plenum  of  the  Superior  Council  of  Magistracy,  which  avoided  a 
negative opinion from the prosecution section. 
19     Venice Commission, Opinion 950/2019, para. 49. 
20     In  this  context  it  should  also  be  mentioned  that  the  Special  Section  registered  a  criminal  investigation 
against  several  members  of  the  Commission  and  of  its  staff  following  a  complaint  issued  on  30  January 
2019 accusing them of abuse in service, false communication of false information and the establishment of 
an  organised  crime  criminal  group  in  relation  to  the  drafting  of  the  November  2018  CVM  report.  That 
investigation also targeted the incumbent Prosecutor-General. The Commission recalls that in the territory 
of each Member State the members of the Commission and of its staff are immune from legal proceedings 
in respect of acts performed in their official capacity, by virtue of the Protocol on Privileges and Immunities 
attached  to  the  Treaties.  Despite  the  Romanian  authorities  thus  lacking  jurisdiction  in  these  matters,  the 
Special  Section  registered  the  case  on  11  February  and  closed  it  only  on  27  March  invoking  a  lack  of 
evidence.   http://www.mpublic.ro/ro/content/c_28-03-2019-13-03 

21     A  key  example  concerned  a  criminal  case  against  the  former  Chief  Prosecutor  of  the  National  Anti-
corruption  Directorate  while  she  was  a  candidate  to  be  European  Public  Prosecutor.  The  timing  of  the 
opening  of  the  criminal  case  and  the  calendar  of  summons  seemed  specifically  designed  to  frustrate  this 
candidacy, and a decision by the High Court of Cassation and Justice on the preventative measures applied 
qualified the case as unlawful. The fact that another case was registered involving the Prosecutor-General 
seemed to confirm the pattern of steps taken against senior magistrates critical of the Section.  

22     See Technical Report for examples and details. 
23     This includes magistrates associations, civil society organisations, and opposition parties. 
24   Opinion  on  Emergency  Ordinances  Geo  No.  7  And  Geo  No.  12  Amending  The  Laws  Of  Justice,  CDL-
-  https://www.venice.coe.int/webforms/documents/?pdf=CDL-

June  2019) 

AD(2019)014,  21-22 
AD(2019)014-e  

25     The opinion points to serious questions about the soundness and the rationale of some of the changes. 
26     GRECO AdHocRep(2019)1 and GRECO RC4(2019)11. 
27     A  working  group  inside  the  Ministry  of  Justice,  with  the  consultation  of  all  judiciary  bodies  and 
professional associations of magistrates is working on an assessment. On 17 September 2019 the Minister of 
Justice announced that preliminary conclusions reached at working level do not support the functioning of 
the Special Section in its current form. 

5 

 
                                                                                                                                                                                          
suggested  that  no  changes  would  be  proposed  on  the  Special  Section.  Therefore  the  issues 
raised by the European Commission, the Venice Commission and GRECO have not resulted 
in further amendments. 

Appointments within the judiciary and pressure on judicial institutions 

Developments  since  November  2018  have  confirmed  the  pertinence  of  the  long-standing 
recommendation of the CVM to make the appointment process of top prosecutors more robust 
and  independent.  The  2018  CVM  report  had  raised  concerns  notably  on  the  ongoing 
dismissal/appointment  procedures  of  the  Chief  Prosecutor  of  the  National  Anti-Corruption 
Directorate (DNA) and the Prosecutor General.  

The November 2018 report recommended to: 
•  Suspend  immediately  all  ongoing  appointments  and  dismissal  procedures  for  senior 

prosecutors. 

•  Relaunch a process to appoint a Chief prosecutor of the DNA with proven experience in 
the prosecution of corruption crimes and with a clear mandate for the DNA to continue 
to conduct professional, independent and non-partisan investigations of corruption.   
•  Respect  negative  opinions  from  the  Superior  Council  on  appointments  or  dismissals  of 
prosecutors  at  managerial  posts,  until  such  time  as  a  new  legislative  framework  is  in 
place in accordance with recommendation 1 from January 2017.  

There  was  initially  no  follow  up  to  these  recommendations.  The  then  Minister  of  Justice 
maintained his choice of candidate for the post of Chief Prosecutor of the DNA. The President 
of Romania refused to appoint that candidate for a second time in January 2019. Since then 
the procedure is de facto suspended, the DNA being managed ad interim. The then Minister 
of  Justice  also  pursued  the  dismissal  procedure  against  the  Prosecutor  General,  despite  a 
negative opinion from the Superior Council of Magistracy. The President of Romania refused 
the  dismissal  in  January  2019.  However,  as  the  post  was  up  for  renewal  in  May  2019,  the 
Minister organised an appointment process in April. As had been the case for the procedure 
for  the  DNA  chief  prosecutor  in  July  2018,  the  Minister  rejected  all  candidates  as  unfit,  in 
spite  of  the  fact  that  many  were  serving  senior  prosecutors,  including  the  sitting  Prosecutor 
General.  As  a  result,  the  Prosecutor  General  decided  to  retire  and  this  function  is  now  also 
exercised ad interim.28 The then Minister had launched a new appointment procedure for the 
Prosecutor General but this was cancelled by the new Minister of Justice, who took office in 
April  2019.  The  approach  of  the  current  Minister  avoided  a  further  deterioration  of  the 
situation  and  gave  space  to  improve  the  procedure.  This  should  be  pursued  as  a  matter  of 
priority by the Romanian government, as the experience of recent years confirms the risk of 
political influence in the process to the detriment of the quality of appointments, and the need 
for a long-term, sustainable solution.  

The Judicial Inspection plays a  key role in  ensuring public confidence  in the independence, 
professionalism  and  integrity  of  the  judiciary.  After  years  of  positive  assessment,  the 
November 2018 report had pointed to substantial concerns about the Inspection: a pattern of 
disciplinary proceedings against magistrates publicly opposing the direction of reform of the 
judiciary,  leaks  of  documents  –  which  were  then  used  by  politicians  to  attack  judicial 
institutions – and the prolongation of the management team by the Government. 

28    On 2 October 2019, the Chief Prosecutor of the Directorate for investigating organised crime and terrorism 
(DIICOT) resigned following scandals in relation to ongoing investigations and political pressure. All top 
prosecutorial functions are now exercised ad interim. 

6 

 
                                                            
The November 2018 report recommended  
•  The  Superior  Council  of  Magistracy  to  appoint  immediately  an  interim  team  for  the 
management  of  the  Judicial  Inspection  and  within  three  months  to  appoint  through  a 
competition a new management team in the Inspection.  

The Superior Council of the Magistracy did not appoint a new interim management team and 
therefore the Chief Inspector remained ad interim until May 2019, when the Superior Council 
re-appointed the same Chief Inspector, despite the controversies. At the same time, since the 
last report, the pattern of disciplinary proceedings against magistrates,29 including the heads 
of judicial institutions who oppose the reforms of the judiciary, have continued, as well as the 
leaking  of  documents.30  The  recommendation  of  November  2018  has  therefore  become 
overtaken by events, but the underlying concerns remain fully applicable.  

Successive CVM reports have pointed to the pressure on magistrates and judicial institutions 
from public attacks from the political world and the media. Since the beginning of 2018, this 
has  been  compounded  by  the  actions  of  the  authorities  responsible  for  disciplinary  and 
criminal investigation of magistrates. The National Anti-Corruption Directorate has long been 
a particular focus of such pressure, as well as the office of the General Prosecutor. The period 
of reference also saw a sharp increase of pressure on the High Court of Cassation and Justice, 
which  is  competent  for  many  high-level  corruption  trials.  Two  constitutional  conflicts  were 
launched by the Government against the High Court regarding its interpretation of procedural 
rules  on  the  constitution  of  criminal  judges  panels.31,32  In  addition,  the  Judicial  Inspection 
filed  a  disciplinary  complaint  against  its  President  and  the  judges  section  of  the  Superior 
Council  called  for  her  revocation.  These  combined  steps  seem  to  have  the  objective  of 
pressurising the High Court and when the President announced her intention not to apply for a 
second term of office, she made clear that this was the reason.33   

The  Superior  Council  has  recently  appointed  a  new  High  Court  President.  It  will  be 
particularly 
independence  and  high 
the  High  Court  maintains 
professionalism,  including  in  the  fight  against  high-level  corruption,  under  the  new 
leadership. 

important 

that 

the 

These developments confirm the assessment made by the Commission in the November 2018 
report that the Superior Council of Magistracy is not fulfilling its role of providing effective 
checks and balances  to defend the  independence of  judicial institutions under  pressure. (see 
Recommendation 7). 

29     Examples of disciplinary investigation in relation to public statements critical of the ongoing reforms: 
        https://www.csm1909.ro/ViewFile.ashx?guid=2be852a5-365b-44e2-990d-47696231789a|InfoCSM ;  
        https://www.csm1909.ro/ViewFile.ashx?guid=38b70eb6-641a-4794-9109-e6805dfd778e|InfoCSM, 
        http://www.inspectiajudiciara.ro/Download.aspx?guid=7c561595-2efe-4ce4-abd7-3150b5d52274|InfoCSM 
        http://portal.just.ro/36/SitePages/Dosar.aspx?id_dosar=200000000361685&id_inst=36 
        https://cursdeguvernare.ro/asociatia-initiativa-pentru-justitie-inspectia-judiciara-incearca-sa-i-intimideze-

pe-magistratii-care-lupta-pentru-apararea-independentei-justitiei.html; 

30   A  recent  example  concerns  the  report  of  the  Judicial  Inspection  on  the  use  of  the  arrangements  of 
collaboration between the prosecution and the intelligence services for wiretapping. The report was leaked 
to the media before the Superior Council could analyse it. 

31    These  constitutional  conflicts  were  referred  to  the  Constitutional  Court  by  the  Government  invoking  a 
conflict between the Parliament (as lawmaker) and the High Court, on the grounds that the High Court had 
exceeded its constitutional powers in its interpretation of the law and substituted itself to the lawmaker.   
32     Doubts have been expressed that it was for the Constitutional Court to rule on the legal interpretation given 

by the High Court. 

33     https://www.mediafax.ro/social/tarcea-despre-refuzul-de-a-mai-candida-la-inalta-curte-m-a-facut-sa-imi-fie-

dor-sa-traiesc-printre-oameni-cu-bun-simt-18218170   

7 

 
                                                            
Criminal Codes 

In July 2018, the Romanian Parliament had adopted in an urgency procedure changes to the 
criminal code and criminal procedure code. These changes were heavily criticised, including 
by the European Commission and the Venice Commission.34 A particular source of concern 
was the abrupt change in the balance between the rights of the accused, victims’ rights and the 
duty of the State to pursue crimes effectively. The changes were clearly in conflict with the 
CVM recommendation to improve the stability of the codes and to amend them only to where 
this  is  specifically  required  by  Constitutional  Court  decisions  and  transposition  of  EU 
Directives. Many changes appeared incompatible with EU law or international obligations of 
Romania.  In  October  2018,  the  Constitutional  Court  ruled  that  many  of  the  changes  were 
unconstitutional.  

The November 2018 report recommended to: 
•  Freeze the entry into force of the changes to the Criminal Code and Criminal Procedure 

Code. 

•  Reopen the revision of the Criminal Code and Criminal Procedure Code taking fully into 
account  the  need  for  compatibility  with  EU  law  and  international  anti-corruption 
instruments, as well as the recommendations under the CVM and the Venice Commission 
opinion 

These recommendations were not followed up. There was a pause, but no acknowledgement 
of the concerns, and this time was not used to deepen reflection and consultation. In April, the 
Parliament  adopted  modified  amendments  of  the  two  codes,  as  well  as  the  special  law  on 
corruption,  using  an  urgent  legislative  procedure.  Many  amendments  continued  to  raise 
concerns on the grounds of their impact on the capacity of law enforcement and the judiciary 
to investigate and sanction crimes in general, and corruption-related crimes in particular. The 
justification provided  by the majority supporting the changes in  Parliament was to  maintain 
only  those  amendments  which  were  not  held  unconstitutional  by  the  Constitutional  Court 
decisions  of October 2018. The opposition parties  and the President  of Romania challenged 
these  amendments  before  the  Constitutional  Court,  and  it  ruled  in  July  2019  that  the 
amendments as a whole are unconstitutional and not in line with its earlier decisions.35  

Whilst  the  intervention  of  the  Constitutional  Court  has  effectively  brought  an  end  to  this 
legislative  process  and  meant  that  the  amendments  will  not  come  into  force  on  grounds  of 
constitutionality, the concerns of the European Commission  and many other  observers were 
grounded in the policy choices made in the amendments. It therefore remains a concern that 
the policy choice taken has not been explicitly renounced.36 

3.1.2.  The January 2017 recommendations: Judicial independence and judicial reform 

3.1.2.1 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.  

34   Venice Commission Opinion 930/2018 
35   The motivations of the rulings have not yet been published.  
36     In August 2019, the Parliament formally rejected a law on amnesty and pardon from February 2017, which 

had remained on the parliamentary table. 

8 

 
                                                            
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 2017, the Commission  reiterated its recommendation to  put in  place a system of 
transparent  and  merit-based  appointments  of  top  prosecutors,  able  to  provide  sufficient 
safeguards against politicisation. The November 2018 report concluded that the situation had 
deteriorated, and this trend has continued (see above).37 

The transparency of the procedure has been increased, notably with the publication of criteria 
for  selection  and  evaluation  by  the  Ministry  of  Justice.  The  current  Minister  of  Justice  has 
acknowledged the need for further improvements. However, the fact that there have been four 
changes in less than six months illustrates that useful improvements in the short term do not 
equate  to  a  long-term  solution.  As  previously  set  out  in  CVM  reports,  the  problems  are  of 
such  long  standing  that  changes  need  to  be  found  which  are  built  on  a  consensus  and 
embedded in law. The involvement of the Venice Commission remains the best way to find a 
balance  between  the  involvement  of  the  government  and  the  judicial  authorities  which  can 
command public confidence. 

Codes of conduct 

In  the  reporting  period,  criticism  of  the  judicial  system  and  individual  magistrates  in  the 
media  and  from  the  Government  and  the  Parliament  representatives  has  continued  to  be 
particularly common. 

A  Code  of  Conduct  for  parliamentarians  is  in  place  since  the  end  of  2017.  The  November 
2018 report found that with a lack of explicit provisions on the respect for the independence 
of  the  judiciary,  the  Code  was  not  yet  performing  this  function.  Since  the  November  2018 
report, in certain cases sanctions have been imposed by the Chamber of Deputies for breaches 
of the Code, but these cases do not appear to relate to cases of criticism of the judiciary likely 
to undermine its independence. 38  

The Commission had also suggested that it would be beneficial to have a ministerial code and 
in April 2019, the Government amended the ministerial code of conduct to include an explicit 
mention of the need to respect judicial independence. It is not yet clear whether this code is 
able to act as an effective tool of accountability. 

3.1.2.2 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. 

37   COM(2018)  851  and  SWD(2018)  551.  See  also  the  Venice  Commission  Opinion  No.  924/2018  of  20 

October 2018 

38   http://www.cdep.ro/pls/dic/site2015.page?id=1046  

9 

 
                                                            
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. 

Code of Civil Procedures 

Recommendation  3  covers  the  finalisation  of  the  reform  of  the  Code  of  Civil  Procedures, 
which  set  up  a  council  chamber  stage  in  the  civil  procedure.  In  2018,  this  reform  was 
abandoned.39 This means that a step designed to increase the efficiency of civil justice will no 
longer take place, but this should provide an opportunity for a period of stability in this branch 
of the judicial system.   

The  transparency  and  predictability  of  the  legislative  process  for  legislation  on  judicial 
reform and anti-corruption measures (for the Criminal Codes, see above) 

The  January  2017  report  made  clear  that  the  process  used  to  legislate  was  itself  important. 
This has continued to raise concerns. The process of amending the justice laws by a series of 
emergency ordinances was strongly criticised by the Venice Commission,40 due to the impact 
of  the  process  on  the  quality  of  legislation,  legal  certainty,  external  checks  on  the 
Government,  and  the  principle  of  separation  of  powers.41  Similarly,  as  noted  above,  the 
legislative  process  in  Parliament  of  April  2019  amending  the  criminal  code  and  criminal 
procedure code and the special law on corruption lasted only about one week.     

This  was  a  major  point  cited  in  the  Commission’s  May  2019  letter  expressing  concerns  of 
risks to the rule of law. This concern was also reflected in the May referendum, where there 
was  strong  public  support  for  a  more  orderly  process.  The  Prime  Minister  declared  that  the 
Government would follow the results and would abstain from adopting emergency ordinances 
in  the  area  of  justice.  In  September  2019,  the  Parliament  also  disbanded  the  Special 
Parliamentary Committee on systematisation, unification and ensuring legislative stability in 
the judiciary, which was responsible for some of the most abrupt procedures used. 

Since the November 2018 report, legislative developments in relation to the legal framework 
for  integrity  have  created  similar  concerns.  Successive  changes  to  integrity  laws  have 
significantly increased the lack of clarity and legal certainty (see Benchmark two). 

39   The amended laws entered into force in December 2018. Law 310/2018 17 December 2018 amending and 

supplementing Law 134/2010 on the Code of Civil Procedure. 

40     Venice Commission opinion 950/2019. 
41      The  opinion  concludes:  ‘most  alarmingly,  the  Government  continues  to  make  legislative  amendments  by 
emergency ordinances. While the Constitution clearly indicates that this should be an exceptional measure, 
legislation by the GEOs became a routine. Fundamental rules of the functioning of key State institutions are 
changed too quickly and too often, without preparation and consultations, which raises legitimate questions 
about the soundness of the outcomes and of the real motives behind some of those changes. The resulting 
legal  texts  are  not  clear.  This  practice  weakens  external  checks  on  the  Government,  it  is  contrary  to  the 
principle of separation of powers and disturbs legal certainty.’ 

10 

 
                                                            
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 
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 

The Romanian Government approved on 3 April 2019 a Memorandum on ‘measures to ensure 
the  execution  of  judgments  against  a  public  debtor,  in  accordance  with  the  case  law  of  the 
European  Court  of  Human  Rights  regarding  non-execution  or  execution  with  delay  of  the 
judgments handed down against a public debtor’. This comes as a follow up to the ‘Săcăleanu 
vs. Romania’ group of cases from the European Court of Human Rights.42 

The  proposals  contained  in  the  Memorandum,  including  the  necessary  regulatory  measures, 
are  now  subject  to  an  analysis  by  the  Romanian  authorities  to  prepare  for  their 
implementation. The Ministry of Justice and the Superior Council of Magistracy are in the last 
stages of the development of the ‘ECRIS’ IT application, which will be used to identify the 
number of definitive judgments in which public institutions are debtors or creditors.43  

Structural reforms to the judicial system 

The  Strategic  Judicial  Management  has  not  been  operating  as  intended  during  most  of  the 
period  of  reference.44  Meetings  restarted  in  September  2019,  also  backed  up  with  new 
coordination  mechanisms  and  efforts  to  build  dialogue  with  the  magistracy,  professional 
associations and civil society.45 Given the current challenges, it is essential that the Strategic 
Judicial Management develops into a forum able to address major strategic questions for the 
judicial system. It could in this way act as a way to restore trust between the key judicial and 
governmental  institutions.  The  fact  that  fundamental  changes  in  the  functioning  and  the 
organisation  of  the  justice  system  have  been  applied  through  emergency  ordinances,  rather 
than through consensual decisions from the Strategic Judicial Management, can only reduce 
the effectiveness and sustainability of those changes.46  

  See Technical Report – Recommendation 5. 

42   The Action plan of structural measures in relation to the Săcăleanu group of cases can be found at 
         https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806dda63  
43  
44    The Strategic Judicial management includes the Minister of Justice, the Superior Council, the High Court 
and  the  Prosecutor  General.  It  was  established  in  2016  as  a  forum  to  facilitate  discussion  and  consensual 
decision-making  on  strategic  orientations  and  resources  for  the  judicial  system.  It  also  oversees  the 
implementation of the Strategy for the development of the Judiciary. 

45     A  meeting  of  the  Strategic  Management  Council  took  place  on  17  September.  The  current  Minister  of 
Justice  plans  to  have  meetings  every  six  weeks.  In  parallel  working  groups  and  consultations  have  taken 
place on the Special Section to investigate offences committed by magistrates and the criminal codes. 
46     Such as the Emergency Ordinances on the justice laws adopted between September 2018 and March 2019. 

11 

 
                                                            
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. 

The transparency and accountability of the Superior Council of the Magistracy  

Whilst  the  Superior  Council  of  the  Magistracy  reports  that  it  continues  to  implement  the 
priorities  for its mandate,47 the period since the November 2018 report has  been  marked  by 
division  and  controversy  in  the  Superior  Council.  In  addition,  it  was  often  sidelined  when 
essential decisions on the organisation and the functioning of the judiciary were taken by the 
Government  or  Parliament.  Positions  within  the  Superior  Council  on  issues  fundamental  to 
the  functioning  of  the  Romanian  justice  system,  such  as  the  Special  Section  to  investigate 
magistrates or key nominations and on defending the independence of justice, raise concerns 
about  its  institutional  independence  and  authority.  This  has  been  further  exacerbated  by 
amendments  to  the  justice  laws  which  made  it  possible  for  decisions  on  key  issues  to  be 
determined by only a few Superior Council members (see above). This is also evidenced by 
statements issued on behalf of the Superior Council but agreed by only part of its members. 
The  pattern  is  also  illustrated  by  a  lack  of  support  of  the  professional  associations  or 
concertation  with  magistrates  in  courts  and  prosecution  offices.  The  Superior  Council  was 
divided  on  how  to  react  to  the  recommendations  of  the  European  Commission,  the  Venice 
Commission  and  GRECO,  and  more  generally  on  when  to  take  action  in  defending  the 
independence  of  justice,  as  the  current  Superior  Council  President  and  part  of  its  members 
continue  to  defend  the  texts  of  the  justice  laws  as  they  stand.  The  Superior  Council  has 
reacted to some complaints brought to its attention regarding the defence of the independence, 
reputation  and  impartiality  of  magistrates,  but  it  seems  of  rather  modest  proportion  in 
comparison to the extent of the problem. Where the Superior Council has cited a defence of 
the  independence  of  the  judiciary,  it  has  sometimes  raised  issues  of  potential  political 
partiality. 48  

Progress  has  continued  on  Benchmark  one  in  relation  to  recommendation  5  (execution  of 
judgements)  and  recommendation  3  (only  as  regards  the  Code  of  Civil  Procedure). 
Recommendations 1, 3 and 4 have not been implemented. Recommendations 2, 6 and 7 have 
seen  no  progress  towards  meaningful  results.  As  for  the  additional  recommendations  of 
November 2018, the situation has deteriorated further, and a more recent positive approach 
has  not  borne  fruit  in  terms  of  concrete  measures  to  redress  the  situation.  Concerns  about 
risks to the effectiveness and independence of the judicial system have been confirmed. As a 
result, the Commission considers that Benchmark one cannot be considered as fulfilled and 
that  the  Romanian  authorities  need  to  take  steps  to  address  all  the  January  2017  and 
November 2018 recommendations.   

47     for the period 2017–2022 
48     For example statements condemning declarations of the President of the European Parliament criticising the 
preventive  measures  taken  by  the  special  section  to  investigate  magistrates,  which  prevented  the  EPPO 
candidate to attend the hearing at the European Parliament; and of the President of Romania rejecting the 
proposal for Minister of Justice made by the Prime Minister in August 2019. 

12 

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

Predictability and legal certainty regarding the integrity legal framework 

Previous  CVM  reports  had  highlighted  the  continued  challenges  to  the  legal  framework  for 
integrity and the need for stability and clarity. In the last two and a half years five legislative 
proposals  modifying  the  integrity  laws  have  been  adopted.  Besides  weakening  certain 
provisions and the ability of the National Integrity Agency (ANI) to continue carrying out its 
work,  this  succession  of  amendments  has  further  contributed  to  maintaining  a  fragmented 
legal landscape.  

Two  proposals  entering  into  force  in  2019  raise  particular  concerns.  The  first  sets  a 
prescription deadline of three years from the deeds that determine the existence of a state of 
conflict  of  interest  or  incompatibility.  This  firstly  has  a  concrete  impact  on  ongoing  cases, 
with  ANI  expecting  to  have  to  close  about  200  investigations  by  the  end  of  this  year. 
Secondly,  it  creates  an  inconsistency  with  other  provisions  of  the  integrity  framework,  with 
the result that it is now unclear whether a sanction can still be imposed following a final court 
decision if this (rather than the ANI report itself) comes after the end of the three year period. 
The second proposal amends  the sanctioning  regime regarding conflict of  interests for local 
elected officials, introducing a new administrative sanctioning regime. This is less demanding 
than  the  current  one  and  ANI  considers  that  it  does  not  allow  for  dissuasive  sanctions. 
Sufficiently dissuasive sanctions for incompatibility and conflict of interests are an important 
element in the prevention of corruption. These two proposals increase the legal uncertainty as 
regards the applicable integrity regime and create a risk of backtracking on Benchmark two if 
’dissuasive sanctions’ can no longer be imposed (despite a final court decision).  

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 

The  November  2018  report  had  considered  this  recommendation  fulfilled.  The  PREVENT 
system  remains  fully  operational  and  ANI  reports  positive  results.  More  broadly,  the  track 
record  of  ANI  remained  steady  on  investigations  of  incompatibilities  and  administrative 
conflicts of interests.49  

Follow-up of court decisions concerning Members of the Parliament 

The November 2018 report pointed at delays and apparent inconsistencies in the application 
of sanctions for Members of Parliament who were found to hold incompatible functions or to 
be in a state of conflict of interest by a final court decision rendered on the basis of a report 
from  ANI.  It  highlighted  a  possible  divergent  interpretation  of  the  rules  (notably  when  the 
integrity incident in question came in a previous mandate or position). The report suggested a 
need  for  clarity  on  the  rules  on  incompatibilities  and  conflict  of  interests  in  a  way  which 

49   See also Technical Report – Benchmark two 

13 

 
                                                            
fulfils the CVM benchmark of securing ‘mandatory decisions on the basis of which dissuasive 
sanctions can be taken’. Since the November 2018 report, there were no new developments in 
this respect. In July 2019, the Minister of Justice suggested the organisation of a meeting with 
all authorities concerned to address this issue. This could be a constructive first step. The goal 
should be a durable solution providing the necessary clarity. 

Recommendation 8 remains fulfilled. Progress on recommendation 9 requires the current lack 
of clarity on the rules to be resolved. The legislative developments on the integrity laws will 
have  to  be  clarified  in  order  to  avoid  the  risk  that  dissuasive  sanctions  can  no  longer  be 
applied following a final court decision, which would constitute backtracking on Benchmark 
two. Benchmark two is therefore not yet fulfilled. 

3.3   Benchmark Three: Tackling High-level corruption 

Sustainability  of  the  National  Anti-Corruption  Directorate  and  irreversibility  of  the  fight 
against corruption 

Since  the  November  2018  report  and  despite  very  difficult  circumstances,  the  judicial 
institutions  involved  in  fighting  high-level  corruption  have  continued  to  investigate 
allegations and to sanction high-level offences of high-level corruption.  

The November 2018 report noted a pattern of pressure on the key anti-corruption institutions, 
notably the National Anti-Corruption Directorate (DNA) and the High Court of Cassation and 
Justice, and growing concerns on their continued ability to fulfil their tasks, with an impact on 
the  irreversibility  of  the  fight  against  corruption.  Although  the  track  record  remains  strong, 
there are signs that the continued pressure on these institutions has had a detrimental impact. 

The amended justice laws included abrupt changes in seniority requirements, with an impact 
on the capacity of the DNA to function. The effective treatment of high-level corruption cases 
has also been adversely affected by the transfer of responsibility for many cases to the Special 
Section,  which  is  not  only  competent  to  investigate  offences  committed  by  magistrates,  but 
also related offences by other persons. The risk identified in November 2018 that the Special 
Section could be used as a means to change the course of high-level corruption cases and to 
pressurise  magistrates  has  materialised  (see  Benchmark  one).  With  the  interruption  of  the 
appointment  procedure,  the  DNA  remains  without  a  Chief  Prosecutor.  Whilst  its  current  ad 
interim  leadership  has  successfully  maintained  its  work,  the  temporary  nature  of  ad  interim 
appointments adds an element of uncertainty and vulnerability. 

The sharp increase of pressure on the High Court (see Benchmark one) has also had an impact 
on the effectiveness of justice in high-level corruption cases. In particular, the High Court was 
referred to the Constitutional Court in two procedures of constitutional conflicts initiated by 
the Government in relation to its interpretation of the procedural rules on the constitution of 
the appeal panels of 5 judges and in relation to the composition of the 3-judge panels for first 
instance  corruption  trials.  Although  the  Constitutional  Court  rulings  do  not  apply  to  closed 
court  cases,  the  follow-up  of  the  ruling  on  the  5-judge  panels  has  given  rise  to  major 
uncertainty.  In  early  2019,  consideration  was  given  to  adopting  an  emergency  ordinance, 
which, if adopted, could have made it possible to reopen all high level corruption cases closed 
by  a  final  High  Court  judgement  handed  down  since  2014  by  a  5-judge  panel.  Whilst 
domestic  and  international  criticism  of  the  proposal  helped  to  prevent  the  adoption  of  such 
emergency  ordinance,  it  would  be  important  for  the  Romanian  authorities  to  renounce  the 
pursuit  of  the  objectives  of  such  a measure  and  to  make  clear that  legislation affecting  past 
cases is not needed, following the Constitutional Court rulings, reiterating their commitment 
to effectively combat corruption. 

14 

 
The  Constitutional  Court  rulings  directly  impact  ongoing  high-level  corruption  cases, 
entailing delays and restarts of trials, and have allowed the re-opening of several final cases, 
under certain conditions. The full consequences are yet to unfold. This clear knock-on on the 
process of justice also raised broader doubts about the sustainability of the progress made so 
far by Romania in the fight against corruption – all the more so when coming at the same time 
as amendments on the criminal code and the criminal procedure code, which did not take into 
account the November 2018 recommendation on the need for compatibility with EU law and 
international anti-corruption instruments (see also Benchmark one). 

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.  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 a member of Parliament when he/she is also or has 
been a Minister. The lack of explanation of decisions taken by the Parliament – as well as the 
number of occasions when Parliament did not allow investigation to proceed – led to concerns 
about the objectivity of these decisions.  

On  5  June  2019,  the  Chamber  of  Deputies  amended  its  rules  of  procedure  regarding  the 
prosecution  of  members  or  former  members  of  the  Government  who  are  member  of  the 
Chamber of Deputies. In particular, reference was made specifically to the criteria set out in 
the Venice Commission’s report on the purpose and waiver of parliamentary immunity.50 This 
change is to be welcomed and the Commission looks forward to its effective implementation, 
also in the light of the recommendation to involve the judicial authorities and civil society in 
the debate.  

The Senate is encouraged to adopt similar rules. In early June, a request from the prosecution 
to lift the immunity of the Chair of the Senate was rejected. In September, the Senate rejected 
a request to start prosecution of a senator who was formerly Minister of Health. 

The Commission reiterates its conclusion from November 2018 that the basis for the positive 
assessment  reached  in  respect  of  Benchmark  three  in  January  2017  has  been  reopened  by 
Romania. Despite the fact that both DNA and the High Court of Cassation and Justice have 
continued to investigate and sanction high-level corruption and demonstrated professionalism 
in  very  difficult  circumstances,  the  attacks  on  their  activities,  the  successive  changes  to  the 
applicable  legal  framework  and  the  possible  challenge  to  the  authority  of  final  judgement 
raise  questions  about  the  sustainability  of  Romania’s  achievement  in  the  fight  against  high 
level corruption. Therefore, recommendation 10, despite some recent positive developments, 
can no longer be deemed to suffice in order to close the Benchmark.  

50   CDL-AD (2014) 011 

15 

 
 
 
                                                            
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 implementation of the National Anti-Corruption Strategy has continued at technical level. 
Corruption prevention measures such as the internal audits by each of the participating public 
institutions and the peer review evaluation missions planned in 2018 were put in motion, both 
in  central  institutions  but  also  at  local  level  (county  councils  and  city  halls).  The  inter-
institutional  cooperation  platforms  met  in  April  2019.  The  authorities  also  report  continued 
corruption  prevention  measures  and  activities  in  central  ministries  and  public  institutions  in 
vulnerable areas, including education, the interior ministry and finance. However, corruption 
prevention has not been seen to be an important political priority. 

One of the objectives of the strategy is to improve performance in the fight against corruption 
by  imposing  criminal  and  administrative  sanctions.  Since  the  November  2018  report,  the 
General  Prosecution  Service  has  maintained  an  effective  prosecution  of  corruption  offences 
not  falling  under  DNA’s  remit.51  However,  the  pressure  on  these  key  institutions  described 
above,52  and  the  legislative  amendments  in  force  or  adopted  by  Parliament,  have  inevitably 
had a negative impact on the fight against corruption, not the least by giving a contradictory 
signal  in  terms  of  political  support  for  continued  action  to  prevent  and  sanction  corruption. 
This includes the amendments to the criminal codes and to the integrity framework, with the 
risk of an impact at every level of public administration.  

National Agency for the Management of Seized Assets 

The National Agency for the Management of Seized Assets (ANABI) is now fully operational 
and has continued to develop its work, which it clearly sets out in its annual reports. This is 
positive example of where consideration of good practice in other Member States (Belgium, 
France, Italy and The Netherlands) and beyond has helped to shape a successful design. 

On the basis of an analysis of Benchmark four, the Commission can reiterate its conclusion 
from  November  2018  that  more  work  is  needed  to  progress  towards  completing  the 
Benchmark. Corruption prevention is held back by political developments, which undermine 
the  credibility  of  progress  (recommendation  11).  Concerning  recommendation  12,  the 
Commission confirms this recommendation is fulfilled. 

51   Results of institutions are detailed in the Technical report. 
52   See Benchmark one and Benchmark three. 

16 

 
                                                            
4.  

CONCLUSION  

Since  the  last  report,  the  Commission  has  had  to  revert  frequently  to  developments  in 
Romania  relating  to  judicial  reform  and  the  fight  against  corruption.  On  each  of  these 
occasions,  the  Commission  has  confirmed  the  backtracking  from  the  progress  made  in 
previous years and set out in the November 2018 report. 

The evolution of the situation in the first months of 2019 was a source of great concern. As a 
result,  the  Commission  had  to  inform  the  Romanian  authorities  in  May  2019  that  if  the 
necessary  improvements  were  not  made  shortly,  or  if  further  negative  steps  were  taken,  the 
Commission would take steps under the rule of law framework, which foresees a dialogue to 
address  rule  of  law  concerns  (and  which  can  therefore  go  beyond  the  parameters  of  the 
CVM).  

The Commission welcomed the fact that in June, the Romanian government expressed a wish 
to  reset  the  approach,  and  effort  has  been  invested  in  new  consultation  mechanisms  and 
dialogue  with  the  judiciary.  The  Commission  looks  forward  to  the  competent  Romanian 
authorities translating this commitment into concrete legislative and other measures. Progress 
will  require  tangible  steps,  legislative  and  administrative,  to  address  the  recommendations 
summarised in this report. The key institutions of Romania need to collectively demonstrate a 
strong commitment to judicial independence and the fight against corruption as indispensable 
cornerstones, and to ensure the capacity of national safeguards and checks and balances to act. 

The Commission will continue to  follow developments closely through the  CVM.  It regrets 
that Romania did not engage with the recommendations made in November 2018, which were 
fully in line with the positions of the other EU institutions. These recommendations need to be 
followed if  the reform  process is to be put  back  on track and the path resumed towards  the 
conclusion of the CVM as set out in the January 2017 report. The Commission is confident 
that Romania could give a new momentum to fulfilling the objectives of the CVM and stands 
ready to help the Romanian authorities to this end. 

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