Courts and Tribunals - Romania

According to the EONET report the possibility to resort to legal instances exists, in principle, for any litigation connected to the conclusion, execution and modification of individual work agreements (Law No. 168/1999 Regarding the Resolution of Work Conflicts; MO No. 582, 2/11/1999, Art. 67a). Similar provisions are included in Article 19(1), of the Labour Code (The person employed in an institution/company has "the right to address the bodies of jurisdiction or any other competent authority whenever s/he considers s/he has been prejudiced in her/his rights") and Article 172(3) ("Litigation between employed persons and institutions, related to the conclusion, execution and annulment of the contract of employment constitutes work litigation and shall be resolved by legal instances or by other bodies provided by the law.")

The EONET report stresses that, although access to Romanian justice is not in itself complicated, the legal motivation and proof of facts in equal opportunities cases are complicated by the lack of concrete regulations on the implementation of the principle of equal pay. In trials involving such cases, and in accordance with Government Emergency Order No. 179/1999, specialised panels of judges are to be constituted: "Cases involving work conflicts and litigation are judged, at the first instance, with celerity, by a panel made up of one judge and two judicial assistants, one representing the business owners' associations and the other representing the trade unions. Judicial assistants are appointed for a period of four years by the Minister of Justice, at the nomination of the Social and Economic Council."(Art. 1(6).). The Order also provides for the creation of separate departments for work litigation within the instances where the number of these cases is significant.

The EONET reports also stress that, for the first time in the national legislation, the right of non-governmental organizations to defend the rights of a discriminated community or group of persons before a court is recognized. Such organizations may appear in court as parties in a civil trial (Statutory Order No. 137/2000, Art. 22).

The report further notes that no measures of protection are explicitly provided - by law or by contractual stipulations - against the dismissal of workers who seek justice because they consider themselves to be victims of discrimination. However, the provisions of the Labour Code and of the law regarding work conflicts offer them rather strong protection. Thus, cases in which an employer may annul the contract of employment are explicitly and restrictively provided in the Labour Code (Article 130(1). The courts may order the annulment of dismissal, the reintegration of wage earners in the positions previously occupied and the obligation of the employer to pay appropriate compensation. The judicial practice of the last 30 years has been consistent in this matter.

As of 1999, the refusal of an employer to implement a final court decision that orders the reinstatement of a wage earner constitutes an offence and is punishable by six months to one-year imprisonment, or a fine (Law No. 168/1999 on Collective Work Conflicts, MO No. 582/2, Art. 84b). If a party to the work litigation, the employee may have the benefit, in addition to the exemption from the stamp tax, of free legal assistance, but only under certain conditions. According to Art.74 of the Civil Procedure Code, "A person who cannot afford the expenses of a trial, without endangering his own support or that of his family, may demand legal assistance". Legal assistance is provided by a lawyer appointed by the bar association upon the request of the courts, the bodies of criminal investigation or of the local public administration in cases in which they consider that the persons are unable to pay the fee. According to Article 69 of Law No. 51/1995: “In cases in which legal assistance is granted ex officio, upon the request of the legal courts or bodies of criminal investigation, the fees shall be paid from the funds of the Ministry of Justice. In cases in which legal assistance is granted ex officio, upon the request of the bodies of the local public administration, the fees shall be paid from the funds of those bodies.” In exceptional cases, if the rights of the person lacking the material means would be prejudiced by delay, the dean of the bar association may approve the granting of assistance free of charge (Article 6862 of Law No. 51/1995). Although the law provides for the possibility to grant legal assistance free of charge if the claimant lacks the financial means, no information is available as to whether this assistance was ever granted in cases of work litigation.

The EONET report signals that, as an alternative to legal action, persons who consider themselves to be victims of discrimination will have the possibility to address the National Council for the Prevention of Discrimination, which will be created by Government decision. Statutory Order No. 137/2000 entrusts this council with responsibilities in the identification and punishment of all acts of discrimination on account of race, nationality, ethnicity, language, religious beliefs, sex or sexual orientation, age, affiliation to a social category or to a disadvantaged category. Any natural or legal person, public or private, who commits the acts punished under this normative act must have responsibilities regarding: appointment criteria, promotion criteria, access to all forms and levels of professional orientation, formation and training; social protection and security; public or other services, access to goods and facilities; the educational system; ensuring the freedom of circulation; ensuring public order.

Another out of court alternative mentioned by the EONET report is the office of the Ombudsperson. The role of the Ombudsperson is to protect citizens’ rights and freedoms violated by the public authorities, as well as to formulate, in the periodical reports submitted to Parliament, legislative recommendations and concrete measures in this regard (see Art. 55 and 56 of the Constitution).

Collective work agreements do not provide for special procedures for the amicable solution of individual complaints formulated by employees, but such procedures may be included. At the national level, there is a single collective work agreement that established that such procedures should be included in the collective work agreements concluded at the level of institutions/companies belonging to a branch of the economy. According to the EONET report, it appears that this clause has not yet been enforced.

The EONET report also notes that the women's associations within trade unions have recently elaborated regulations for the amicable resolution to disputes between employers and employees, which also include disputes related to the refusal to apply the principle of equal pay. These regulations are to be included in the National Collective Work Agreement.

With regard to the burden of proof issue, the EONET report stresses that, in cases of litigation that concern the violation of the principle of equal treatment for women and men, in relation to access to employment, vocational training and promotion, and working conditions, the burden of proof rests with the plaintiff, running counter to the European directive which recommends the reversal of the burden of proof in cases of discrimination based on sex. The consequence of this provision is that it is very difficult to prove the existence of discrimination, and employees who find themselves in this situation do not go to court anymore.