1. Context
On July 24, 2024, the European Commission published its fifth annual report on the rule of law, which focuses on the analysis of developments in the rule of law in all Member States[i].
In a first part of the report, reference is made to the components of the justice system such as its independence, quality, and efficiency during the reference period.
With regard to the component of judicial independence, the report makes a preliminary reference to the general public’s perception of the level of independence of the Romanian courts, which is increasing compared to previous years.
It also indicates aspects relating to the progress made by Romania in finalizing the process of taking into account the recommendations of the Venice Commission on the “Justice Laws”.
In addition, it applauds the series of additional measures taken to ensure the effective implementation of the package of laws that entered into force in December 2022. Last but not least, reference was also made to the protocol signed between the U.N.B.R. (National Bar Council), the Ministry of Justice and the Prosecutor General’s Office in response to lawyers’ concerns regarding the respect of lawyers’ legal rights and privileges, such as the violation of professional secrecy, fines imposed on lawyers and the payment of public defenders.
As regards the quality of the justice system, attention was drawn to the progress made in ensuring adequate human resources for the judiciary, as well as to the efforts made by the High Court of Cassation and Justice to address wage inequalities, in which sense additional budgetary resources have been obtained. In addition, efforts to improve the digitization of the justice system were also welcomed, with reference to the possibility to consult case files online, as well as the updated ECRIS V platform, which will become operational by the end of 2025.
On the efficiency of the judicial system, it was noted that there are still challenges in terms of the length of proceedings and case resolution rates, pointing out that the caseload has increased compared to the previous report.
In the following, we will present some key issues that have been presented in this year’s report, which mainly refer to the fight against corruption, but also to the positive obligation of states to create and adopt specific rules in various areas, such as those related to lobbying activities, which are expressly referred to in the report, which are not yet expressly regulated in Romania, although there are entities that publicly and transparently carry out such activities.
2. The fight against corruption in Romania
As related to corruption in Romania, the perception of experts and business executives is that the level of corruption in the public sector remains high, which in line with economic enterprises makes it difficult to do business.
In this context, it was pointed out that Public Procurement remains a sector with a high risk of corruption, and Romania aims to identify the areas and procedures of public procurement that are most exposed to corruption by the end of 2024.
Although the report does not explicitly refer to the work of criminal investigation bodies other than the national ones, it should be recalled that with the entry into force of the EPPO Regulation transposed into national law by Law no. 6/2021, the European Public Prosecutor’s Office took over a number of tasks of the National Anti-Corruption Directorate, in particular those concerning the investigation of offenses related to the illicit obtaining of funds.
In practice, it has been observed that entities that have illegally obtained European funds have often obtained funds from the national budget before or afterwards, which is why the investigations are carried out by the European Public Prosecutor’s Office based on the competence established by the EPPO Regulation.
On the other hand, it is indicated that following its accession to the OECD, Romania has initiated legislative measures to prosecute foreign public officials for bribery. Romania has committed to take legislative action in response to the OECD’s assessment that the scope of the transnational bribery offense in its legislation is too narrow and the penalties for legal persons are too low.
At the same time, the report shows that the number of specialized prosecutors within DNA remains stable and that the authorities continue to show positive results in the fight against corruption
Furthermore, the report indicates that although the assessment of the existing integrity framework showed that there are gaps and that, due to the fragmentation of integrity rules, ANI has continued to perform well in managing conflicts of interest and declarations of assets, it identified a record amount of unjustified assets of over €6 million, while concluding that ANI fulfils the role of the main external whistleblower channel in the public interest and redirects whistleblowers’ reports on corruption to other competent authorities.
Equally, in order to prevent and fight corruption and to encourage employees to report irregularities without being subject to retaliation for disclosing them, Romania has enacted, through a fairly recent legislative amendment, Law no. 316/2022 on the protection of public interest whistleblowers.
Thus, all public institutions in Romania are obliged to establish an internal whistleblowing policy, including structures without legal personality under certain conditions. These provisions also apply to private entities that have more than 50 employees, with the consequent obligation to establish an internal whistleblowing policy.
3. The merits of the criticism regarding the lack of regulation of lobbying. Does it need specific regulation?
In besides the concerns raised as a result of the delayed response regarding the statute of limitations on criminal liability which has led to a high number of dismissals and termination of criminal proceedings, the report notes that no progress has yet been made in Romania in introducing rules on lobbying activities for senators and deputies, although recommendations were made in previous years.
Preliminarily, it should be mentioned that the term lobby should not be confused with the term corruption. Lobbying should rather be seen as the action of private individuals and groups, each with specific and varied interests, seeking to influence decisions at the political level.
Although reference is made to the lack of a normative act dedicated to lobbying activities, various regulatory initiatives have been on the parliamentary agenda in the past, since 2010. In the legislative proposal on the organization of lobbying activity in 2010, rejected by the Senate, an attempt was made to regulate the purpose of lobbying and its content, the legal status of lobbyists and the applicable sanctions. Subsequently, in 2011 it was also tried again to regulate the phenomenon of lobbying and, in subsidiary, to create conditions regarding the transparency of activities, but these efforts were unsuccessful.
On the other hand, the lack of legislative frameworks could pave the way for self-regulation. Thus, in Romania, self-regulation of lobbying has been carried out by non-governmental organizations with the aim of popularizing and promoting lobbying.
The proposed system of self-regulation includes, among other things, a code of ethics, a transparency register of lobbying activities and a transparency register oversight committee.
Therefore, one cannot help but wonder whether self-regulation is not the alternative and more efficient option despite the adoption of a set of rules which, as we have seen in countries such as Hungary and Poland, have not been as successful as expected due to the ambiguities and confusion they have caused.
Indeed, the reasoning behind the adoption of certain legal acts is based on arguments aimed mainly at distinguishing between lobbying and influence peddling by defining lobbying activity in concrete terms.
Moreover, self-regulation does not preclude the existence of normative acts transposing the general framework or the main benchmarks of lobbying activity or general ethical norms and standards. Therefore, we consider that such a manner is closer to the manifestation at the European level, where although there is a general legal framework that covers lobbying, it only regulates the aspects related to transparency in the relationship between lobbyists and the European Parliament or the European Commission.
Finally, it should not be overlooked that although there is no specific regulation, lobbying may borrow some essential aspects from other primary and secondary legislation. In terms of transparency, according to law no. 52/2003, public authorities are obliged to increase the degree of transparency throughout the entire public administration, which includes the administrative decision-making process and beyond.
Additionally, to ensure transparency, art. 1 of Law 544/2001 states that any information of public interest is freely accessible. In addition, even art. 51 of the Romanian Constitution regulates the right to petition, which allows any person to participate directly in the realization of public administration functions.
Therefore, along the same line of thought, other non-legislative acts can be identified to complement the activity of lobbyists and which refer to the transparency in the elaboration of normative acts and in the elaboration of public policies, as well as to the lobbying activity and the acquisition of legal consultancy services and public procurement and investment.
4. Media pluralism and media freedom The rule of law report also addresses issues concerning media pluralism and media freedom. This aspect holds significant importance when assessing the rule of law in any country, considering that the media, frequently referred to as “the watchdog of democracy,” plays a crucial role in this context.
Firstly, the report assesses whether the rights to freedom of expression and access to public information are explicitly provided for in Romanian legislation. So far as legislation is concerned, everything is in order: freedom of expression is explicitly enshrined in the Romanian Constitution as one of the fundamental freedoms,the right to access public information is specifically addressed by a dedicated piece of legislation – Law No. 544/2001 on Free Access to Information of Public Interest, enacted on October 12, 2001 and audiovisual media services is regulated by the Audiovisual Law, which transposes the Audiovisual Media Services Directive (AVMSD), and the Code governing audiovisual content.
The report also evaluates the National Audiovisual Council’s (CNA) effectiveness in safeguarding public interest and ensuring pluralistic expression in audiovisual media services. The key findings are as follows:
– The CNA expects to have its technology systems updated by the end of 2024, which would help it with enforcement actions.
– In 2022, the CNA issued 63 injunctions and imposed 52 fines for breaches of information accuracy and pluralism according to CNA’s annual report for 2023.
– Stakeholders have differing opinions on the CNA’s performance.Active Watch finds the current penalties for ethical misconduct ineffective in changing news television behaviour, while the Romanian Press Club criticises the CNA for allegedly censoring the press under the guise of citizen protection.
– In 2022, the CNA began working on secondary legislation; however, the process is still ongoing, and a detailed timetable is not yet available, according to information received in the context of the country visit to Romania from CNA.
However, when it comes to the implementation of this legislative framework, challenges arise. Despite sound legislation, practical enforcement often reveals issues that undermine its effectiveness. Some of the key implementation issues are:
– Although the shareholding structure of audiovisual licence holders is now public, the report highlights that it remains challenging for the public to identify the ultimate owners of media companies outside the audiovisual sector.
– The CNA has published shareholding information for audiovisual license holders, but there are no specific transparency or concentration regulations for media companies outside the audiovisual sector. Consequently, it remains difficult for the public to identify the ultimate owners of these media companies.
– Issues related to media ownership transparency mentioned in the 2023 and 2022 Rule of Law Report persist. Some of these issues regarding transparency relate to the fact that:
• Information about audiovisual media ownership is available in the company registry and partially in annual activity reports, but it is not always complete.
• Media companies not operating in the audiovisual field are only subject to the (less extensive) requirements any other company in Romania must abide by. They have to communicate information on ownership structures, including shareholders, to the National Trade Register Office. However, it is still possible for a media company to be owned by another company, owned in turn by an entity registered abroad.
• Information about media company ownership is not publicly accessible without prior registration and a fee.
These recurring issues with media ownership transparency prove that even the most robust and comprehensive legislation is ineffective without fair and uncorrupted enforcement mechanisms. Despite making shareholding structures for audiovisual license holders public, in practice it is still hard to identify the ultimate owners of media companies outside this sector. The absence of specific transparency regulations for non-audiovisual media companies, incomplete ownership information, and the difficulty in accessing this data without registration and fees all highlight the need for stronger, more transparent enforcement mechanisms.
Furthermore, the report highlights several other issues related to media pluralism and media freedom, such as the lack of independent governance of public service media, increased financing of private media for political advertising by some political parties, no significant improvements to the legal framework on access to information, with the protection of personal data being often used as a blanket reason to refuse access to documents.
No significant progress has been made to enhance the independent governance and editorial independence of public service media in Romania, despite recommendations from the 2023 Rule of Law Report. A 2021 bill to reform public broadcasting is still under discussion, but no additional mechanisms to ensure the independence of public service media have been adopted. Additionally, the appointment and dismissal processes for the Board of Directors of the public service broadcaster remain susceptible to political influence. As noted earlier, effective legislation requires proper, transparent, and uncorrupted enforcement mechanisms to be truly effective.
Despite a strong legal framework and penalties, the report shows that political parties in Romania have reportedly increased their financing of private media for political advertising, impacting both TV and online media. This issue persists despite the audiovisual law’s prohibition on sponsoring news and current affairs programs, the audiovisual content regulation code’s ban on political advertising outside of election periods and despite the fact that the CNA has imposed five injunctions and two fines for non-compliance. Although the law governing political party financing mandates transparency in revenue and expenditures and requires the notification of campaign expenses to the Permanent Electoral Authority, stakeholders indicate that some political parties use confidentiality clauses in contracts with media companies to obscure their financial contributions. A reform bill is pending, but according to stakeholders it is unlikely to address these transparency deficiencies effectively in the near future. The overarching conclusion remains that without robust, transparent enforcement mechanisms and dissuasive penalties, the legislation will remain largely ineffective.
A key focus of the 2024 Report on the rule of law situation in Romania is the issue of threats and harassment against journalists, as well as the commercial and political pressures affecting editorial independence. Among other issues, such as strategic lawsuits against public participation and commercial pressure from media owners and advertisers the report also refers to the smear campaign against journalist Emilia Șercan (also mentioned in the 2023 Rule of Law Report) and criticises the Public Prosecutor’s decision to close the investigation on the grounds that ‘the offences’ – including the publication of stolen private photos and the presumed disclosure of evidence held by the police – ‘were not provided for by the criminal law’. Ultimately, the High Court of Cassation and Justice upheld the journalist’s appeal and instructed the General Prosecutor to reopen the investigation, yet the final outcome remains to be seen.
5. Other institutional issues related to checks and balances
The 2024 Rule of Law Report also addresses various aspects of checks and balances, which refers to the system of distributing power among different state authorities to ensure accountability and prevent any single entity from wielding excessive control.
Some of the issues pertaining to checks and balances highlighted in the 2024 report include:
– The absence of an accredited National Human Rights Institution that complies with the UN Paris Principles. Nevertheless, progress has been made towards obtaining accreditation for a National Human Rights Institution, in line with the recommendations provided to Romania in the 2023 Rule of Law Report.
– Ongoing issues with the consultation process have stalling efforts to make public consultations more effective.
– Although the use of government emergency ordinances is decreasing, they remain frequently employed, which hinders efforts to enhance the quality and transparency of the decision-making process.
– As of January 1, 2024, Romania had 115 leading judgments from the European Court of Human Rights pending implementation, representing an increase of two from the previous year.
– There is draft legislation under consideration and an upcoming new strategy that could improve the situation for civil society organisations (CSOs), which still face legal and financial challenges.
• Some CSOs are concerned about insufficient funding and complicated registration processes. Recent fiscal changes now limit sponsorships to 3.5% of wage-based tax payments and exclude self-employed individuals, despite significant protests against the adoption of this new law. This restricts previous options for funding through tax contributions, therefore private persons and companies remain the main sources of support for CSOs.
• Romania is developing its first national open government strategy, aimed at increasing transparency, public participation, and public accountability in the adoption of new legislation. This strategy is expected to be approved by the Government before mid-2026.
• A draft law updating the rules for associations and foundations, developed with input from CSOs, was approved by the Senate in December 2023 and is now under review by the Chamber of Deputies. It aims to simplify operations by reducing bureaucracy and increasing digital processes.
• CSOs are pushing for a draft law to protect associations and foundations from being dissolved due to public interest litigation. However, a new legislative proposal from December 2023, adopted in 2024, eliminates judges’ ability to reduce legal costs, discouraging CSOs from pursuing court actions, especially against the national administration.
6. Conclusions and recommendations
In conclusion, it can be observed that the European Union remains actively engaged in monitoring the justice system and the rule of law in all its Member States, including Romania, despite the lifting of the Cooperation and Verification Mechanism (CVM). The EU’s ongoing scrutiny is reflected not only in the annual reports on rule of law state of affairs in its Member States, but also in recent European-level regulatory measures such as the anti-corruption directive and the activities of bodies like the European Public Prosecutor’s Office. These efforts have significant national implications, particularly for the business sector, underscoring the importance of implementing effective ethics and compliance systems to meet European transparency standards. Companies are strongly encouraged to seek expert advice to adapt to these evolving standards and align their practices with current expectations and regulatory requirements.
As pointed above, in recent years, there has been a noticeable shift from general corruption issues in criminal matters to more specialized areas such as lobbying, whistleblowing, and corporate ethics obligations. Companies are increasingly required to adopt complex practices to align with European standards, often necessitating the involvement of specialists to effectively implement these measures. This trend towards focusing on each individual company, essentially at a microeconomic level, means that businesses must integrate sophisticated compliance systems. This shift indicates that existing anti-corruption legislation has successfully established a broad framework. The introduction of specific rules and regulations is aimed at addressing these niche areas more efficiently, ensuring that companies operate within a well-defined ethical and legal structure. Consequently, businesses are compelled to enhance their internal practices and seek expert advice to fully comply with the evolving standards, ultimately promoting a more transparent and accountable corporate environment.
[i] Available at https://commission.europa.eu/publications/2024-rule-law-report-communication-and-country-chapters_en.
Claudiu Bularda, Criminal Defence Lawyer Șandru Avocați
Alexandra Aldea, Criminal Defence Lawyer Șandru Avocați
