Doing Legal Research in Romania

By Dana Neacşu

Dana Neacsu is a reference librarian at Columbia Law School, a lawyer and member of the bar of the State of New York, a former Romanian judge (1989-1990) and faculty member of the Romanian University School of Law (1990-1994). She holds an M.L.S. from CUNY (2001), an LL.M. from Harvard Law School (1994), a D.E.A. from Caen Université de Droit et des Etudes Politiques (1991), and a Diploma de Drept (J.D.) from Bucharest University School of Law (1989). She is author of the upcoming book Introduction to American Law and Legal Research (2005).

This is an online guide to Romanian legal research. It provides information and links to print and online resources and is aimed primarily at researchers outside of Romania needing an overview of Romanian legal research.

Update to an article previously published on LLRX.com on December 3, 2001 <http://www.llrx.com/features/romania2.htm >

Published April 2005

See the Update!

Table of Contents

1.       Introduction: The Romanian Legal System

1.1.        The legislative branch

1.2.        The executive branch

1.3.        The judicial branch

2.       Romanian Primary Legal Resources

2.1.        Romanian statutory law

2.2.       Textbooks/Treatises

2.3.       Romanian case law

2.4.       European legislation and case law

3.       Romanian Secondary Legal Resources

3.1.        Textbooks/Treatises & Legal Journals

3.2.       WWW Meta-sites for legal research

4.       Romanian Legal Organizations (law libraries, law schools, etc.)

4.1.        Romanian law schools

4.2.       Romanian law societies and bar associations

4.3.       Romanian law libraries/library catalogs

4.4.       Romanian law firms

4.5.       Romanian legal publishers

5.       Specific Topics in Romanian Law

5.1.        Administrative law

5.2.       Banking law

5.3.       Bankruptcy and insolvency law

5.4.       Civil law

5.5.       Civil and Criminal procedure

5.6.       Citizenship and Nationality (Immigration)

5.7.       Communications law

5.8.       Commercial law

5.8.1.  Competition (Antitrust) law

5.8.2. Securities

5.9.       Constitutional law

5.9.1.  Electoral law

5.10.    Contract law

5.11.     Corporate law

5.12.    Criminal law

5.13.    Employment & labor law

5.14.    Environmental law

5.15.    Family law

5.15.1.     Adoptions

5.16.    Insurance law

5.17.    Intellectual property law

5.18.    International Private law

5.19.    Real property law

5.20.   Taxation law

5.21.    Tort law

5.22.    Trusts and estates law

6.       International Law & EU Expansion

6.1.        EU Expansion

6.2.       Romania’s Accession

1. Introduction: The Romanian Legal System

There are two main legal systems in the world: civil law and common law.  The Romanian legal system belongs to the first group, under which only the Constitution and other statutory legislation constitute a legitimate source of legal rules.

Therefore, unlike under the US and other common law systems,

·         Formally, the Romanian legal system does not recognize case law or judicial precedent as a source of legal rules. Previously decided cases therefore are not binding upon lower courts and do not create “law”;

·         The doctrine provides the rule where the law is silent;

·         Trials in the Romanian legal system do not have a pretrial phase during which, for instance, discovery might occur as it does in the common-law system. Instead, discovery or its equivalent occurs as the trial proceeds. In criminal cases, however, there is a pretrial phase;

·         There are no jurors, and;

·         The judge has a proactive role in searching for the judicial truth.

1.1. The Legislative Branch

The Romanian legislative branch is composed of national and local bodies.  Its main national body is the Parliament, which has two chambers: a lower house, the Chamber of Deputies, and an upper house, the Senate.

Parliament enacts statutes which are the main source of legal rules. Such statutes are officially published in Monitorul Oficial (Official Gazette).

Parliament also is the source of the Constitution, having enacted it as a species of supra-legislation.

In addition, Parliament may pass a special law enabling the Government to issue orders in fields outside the scope of organic laws (Constitution, Art. 115).

The county, urban and rural areas have their own autonomous ruling bodies, which, within defined geographical and jurisprudential boundaries, are empowered to enact binding decrees within their geographical areas (see Constitution, Chapter V. Sect. 2-a)

1.2 The Executive Branch

The Romanian executive branch has two main components: the Government and the President

The Government consists of a Cabinet, which includes the Prime Minister and ministers of the various Ministries.

The Government issues Decisions and Orders (see Constitution, art. 108) whose brief subject-matter descriptions can be viewed on-line. The President may issue Presidential decrees (see Constitution, art. 100).  The ministers also issue a large array of rules, regulations, and decisions (Ordine si Hotariri) (see the rules issued by the Minister of Justice).  Additionally, national administrative agencies may issue rules and regulations (Oridine) (see the rules issued by the National Agency of Control of Exported Products).  Finally, the Government appoints a Prefect in each county and in the City of Bucharest, who is its representative at the local level. (Constitution, Art. 123)

1.3. The Judicial Branch

The judicial system is divided into civilian and military courts. The civilian courts, generally, continue their pre-1989 structure of being organized at national, county (judeţ– 44 in total), and local levels.

Romanian justice is organized on the principle of double jurisdiction. Therefore, any case decision from a first-instance court (judecatorie) is subject to a complete de novo retrial on the facts, the procedure and the law by an appeals court (tribunal).  The tribunale hear appeals (de novo) from the judecatorii. Tribunale may also act as a court of first instance for administrative and commercial law cases, including bankruptcies and the more important or serious civil and criminal cases.

Before 1989, the Minister of Justice was responsible for the administration of justice.  After 1989, the Supreme Court of Justice and lower courts have that responsibility:

“Justice shall be administered by the High Court of Cassation and Justice, and other courts of law set up by the law.” – (Constitution, Art. 126)

Additionally, under art. 131 of the Constitution, the Public Ministry is charged with the duty to represent the general interests of society and to defend the legal order, as well as the individual rights and freedoms. The Public Ministry, which discharges its powers through a system of Public Prosecutors, replaced the former Office of the Prosecutor General (Procuratura) – which had been established in 1952.

Civilian judges and Public Prosecutors are nominated by the Superior Council of the Magistracy.  Once thereafter appointed by the President, judges are, by law, irremovable and therefore enjoy life tenure, under article 125 of the Constitution. The Council acts as an administrative/disciplinary organ within the Ministry of Justice. (It should be well-noted that, because judicial precedent is not a recognized source of law –and thus judges do not “make law” – and, further, because normal judges cannot exercise judicial review (see below), the professional status and importance of judges is very different, and generally less, than that enjoyed by common-law judges.)

Unlike the US Supreme Court, the Romanian High Court cannot exercise judicial review in deciding the constitutionality of legislation. That function is reserved for a different court, the Constitutional Court (see Constitution, art. 144)

2. Romanian Primary Legal Resources

2.1 Statutes

Formally, Romanian courts apply only statutory laws, which are created by the legislature, and in some circumstances by the executive, but never by courts, and thus never include judicial precedent.  The law is structured hierarchically, with the Constitution at the top, then codes and parliamentary statutes, and, at the bottom of the hierarchy, executive “laws.” Before 1989, Romanian laws issued by the Parliament were published in an official journal called Buletinul Oficial al Republicii Socialiste România, and those issued by the Government were published in Colectia de hotarîri ale Consiliului de Ministri si alte acte normative.  Those publications became Monitorul Oficial al Romaniei (Official Gazette) after the 1989 political changes.

The Columbia Law School Diamond Law Library has both Buletinul Oficial (the Romanian Gazette) and Colectia de hotarîri in its collection

The New York University Law Library has Monitorul Oficial in its collection.

Online, some legislation is available through the web page of the official legal publication, Monitorul Oficial.

2.2 Textbooks/Treatises

When a statute is silent as to a particular set of facts, scholarly texts (textbooks and treatises) are heavily used by judges.  The law libraries of Harvard Law School and New York University School of Law have large collections of such Romanian works.

Although legislative history is not as an important tool of statutory interpretation as it is in the United States, for those interested in it, the American Bar Association’s Central and East European Law Initiative (CEELI) has posted on line a number of domestic draft law assessments in the Commercial, Environmental, Executive, and Media fields. Since these assessments are made, however, by non-Romanian consultants, their status as legislative history or even its equivalent is questionable.

2.3 Case Law

The Romanian legal system, like any other civil law system, does not recognize legal precedent as stare decisis.

For example, although courts at every level are aware of the Constitutional Court’s decisions holding laws unconstitutional, being officially published in Monitorul Oficial (Law No. 47 of 18 May 1992), they do not bind ordinary courts faced with similar cases.  Every time a court is confronted with an unconstitutional statute, it has to defer the matter to the Constitutional Court, and await its decision in every such case, before the matter at issue can be retried upon one party’s request. Selected decisions of the Constitutional Court are available on-line.

On the other hand, the Supreme Court’s decisions (which, of course, are limited to statutory application and interpretation and do not address issues of constitutionality) are consciously followed by lower courts’ judges in an effort to unify the law of the land.  Although there is no system of general publication of judicial decisions similar to that in the US (see the Atlantic Reporter, etc.); there are specialized collections of selected decisions heavily edited (and selected) by their academic authors, such as Drept civil: spete si solutii din practica juriciara, which contain summaries of legal decisions in civil law matters.

New York University’s Law Library has such a collection authored by Profs. T.R. Popescu & I.P. Filipescu, Drept civil : spete si solutii din practica juriciara, which was published in 1970.

It should be noted that the Romanian High Court has created an electronic database, which contains all decisions from 2003.  The summaries are in Romanian and the search may be done by typing words contained in the text of the decision.

2.4 European Legislation and Case Law

Romania ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (with only one reservation regarding military discipline).

By ratifying this convention, Romania has agreed to enforce the rights guaranteed by the convention, including the right of individual petition to, and the obligatory jurisdiction of, the European Court of Human Rights.  Accordingly, any Romanian citizen may bring a case against the Romanian State before the Court and the decision will be binding upon the Romanian State.

Some of the Courts’ decisions regarding Romania may be viewed at http://www.scj.ro/jurisprudenta.asp, while its current docket may be viewed at http://www.echr.coe.int/BilingualDocuments/PendCase.htm.

3. Romanian Secondary Legal Resources

3.1 Textbooks, Treatises & Legal Journals

Textbooks/Treatises:

Instead of textbooks, so common in North American law schools, the most common type of legal academic work in Romanian law schools is the legal treatise, which explains legal principles as applied to one legal area. Harvard Law School, New York University Law School, and Columbia Law School all carry Romanian legal treatises.

Legal Journals:

The major public law schools have their own law reviews.  For example the Bucharest Faculty of Law publishes Analele Universitatii Bucuresti. Drept, and the Cluj Faculty of Law publishes Analele Facultatii de drept din Cluj. 

The Columbia Law School Diamond Law Library has in its collection Analele Universitatii Bucuresti. Drept as well as Analele Facultatii de drept din Cluj.

Additionally, one of the most influential Romanian law reviews is Dreptul (The Law), which superseded Revista Romana de Drept (The Romanian Law Review) which superseded Justitia Noua (New Justice),  published by Uniunea Juristilor Democrati Din România (The Union of Romanian Democratic Lawyers).  Other legal periodicals are Studii si Cercetari Juridice (Legal Studies and Research), and Revue roumaine des sciences sociales. Serie de sciences juridiques, both published by the Institute of Legal Research of the Romanian Academy. One of the most useful legal periodicals for a practitioner is Revista de Drept Comercial (The Review of Commercial Law) published by a commercial publisher, which contains notes, commentaries, and articles on newly evolved legal issues.

For example, the Columbia Law School Diamond Law Library has Dreptul in its collection, while the New York University Law Library has Revista Romana de Drept in its collection, as well as Revue roumaine d’études internationales.

Although not published in Romania, The East European Constitutional Review, which is published by New York University Law School and Central European University, also contains articles focused on Romania, such as Constitution Watch: A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR.

3.2 WWW Meta-sites for legal research

General sources:

·         The Global Legal Information Network (GLIN) is a U.S.-governmental database which “maintains and provides a database of laws, regulations, and other complementary legal sources.”

·         http://www.findlaw.com/12international/countries/ro.html (part of the FindLaw legal search engine)

·         http://www.law.nyu.edu/library/foreign_intl/ (An English guide to foreign and international databases edited by Mirela Roznovski, New York University Law Library)

·         http://www.ucd.ie/~law/staff/todowd/en_juridic.html (A database of information about Moldavian & Romanian Law assembled and maintained by John O’Dowd)

·         http://www.dsclex.ro/coduri/coduri.htm (Romanian database of various legal codes)

·         http://legal.dntis.ro/index.html (Romanian database of central legal codes, assembled and maintained by Iulian Gherghevici)

·         http://www.priweb.com/internetlawlib/79.htm (This English-language database is a portion of Pritchard Law Webs’ Internet Law Library, which is the successor to the US House of Representatives Internet Law Library)

·         http://www.washlaw.edu/forint/europe/romania.html (Legal search engine maintained by Washburn University School of Law Library)

·         http://www.corpvs.org (CORPVS WEB is a Romanian legal database)

Specific Sources:

·         http://www.hr.ro/digest_archive.htm (Herzfeld & Rubin’s Romanian Digest – an update of Romanian legislation)

Miscellaneous:

4. Romanian Legal Organizations (law libraries, law schools, etc.)

4.1 Romanian law schools

The Romanian higher education system comprises both public and private law schools.  The major public law schools are faculties within the major universities: Bucharest University – Faculty of Law, Iasi University, and Cluj University – Faculty of Law.  Aside from those, there are few other public schools, and scores of private law schools who attract those who failed the entrance exam to the public law schools.

Students at both public and private law schools have to pass an admission test (or have obtained certain grades in high school and, for private schools,  pay certain fees), and must complete four years of study.

Generally, the first year includes:

General Theory of Law, Romanian State and Law History, Romanian Constitutional Law and Political Institutions, Roman Law, Civil law (I), Management, Political Economy or Philosophy, Sociology, Latin, and/or a foreign language.

The second year includes:

Civil law (II), General Penal Law, Administrative Law, International Public Law, Financial Law, Criminology, Accountability, and International Protection of Human Rights.

The third year includes:

Civil Law (III), Special Penal Law, Procedural Penal Law, Trade Law Work and Social Security Law, EU Law, Banks and Currency Law, Competition Law, Intellectual Property Law, International Trade Law, International Private Law, Criminal Investigation, (IV), Procedural Civil Law, Forensic Pathology, Family Law, Civil Jurisprudence, Penal Jurisprudence, and License Examination Training.

As in the US, after graduation and receipt of an approved law degree, students must pass a National Examination in order to legally practice law. Unlike in the US, after graduation, candidates must complete two years of supervised practical training leading to an examination, which once passed ensures full qualification.

4.2 Romanian law societies and bar associations

Law Societies:

Law students have always been organized– before 1989, as part of the so-called Communist Party, per each public law school, and after 1989, these associations became organized according to interests less ideological and more economic or commercial, see, for example, ELSA.

Professional/Bar Associations:

After 1989, the rules of legal practice were provided by Law no. 51 of 7 January 1995, on the profession of advocate.

Currently, Romanian jurists have a variety of professional associations:

The largest one is Uniunea Nationala a Barourilor din România – UNBR (The Romanian National Bar Association):

Str. Dr. Râureanu nr. 3-5, Etaj 2, Sector 5, Bucureşti, România

CF 4315794

Tel: +4021-313-8631 / -4875 / -4876

Fax: +4021-313-4880

E-mail: uar@uar.ro

Each county, including Bucuresti (Bucharest), the capital, also has bar associations. See Baroul Bucuresti (The Bucharest Bar Association), str. dr. Raureanu nr. 3-5, sector 5, Telephone:  0213.154.538, Fax: 0213.121.084.

4.3 Romanian law libraries/library catalogs

Generally, each public law school, each court of appeal, and district courts in major cities have a law library.

4.4 Romanian law firms

After 1989, the state bar became privatized and currently there are many private law firms in the cities where courts are located.  Additionally, international law firms have opened offices in Bucharest.  Some of them may be contacted via the Internet:

4.5 Romanian legal publishers

Regia Autonomă “Monitorul Oficial” publishes Romanian legislation, including the Romanian Official Gazette, and collections of foreign translations of Romanian laws.

5. Romanian Legal Research: By Topic

5.1 Administrative law

Romanian administrative law is legally framed by the following statutes:

  • Law no. 69/1991, about local public administration, and the laws on administrative procedures;
  • Law no. 29 of 7 November 1990;
  • Law no. 29 of 7 November 1993 published in Monitorul Oficial 26 July 1993;
  • Law no. 161 of 19 Apr 2003 regarding the assurance of transparency in the exercise of authority by public officers and functionaries in economic affairs and prevention and criminalization of public corruption, which was published in Monitorul Oficial 2003 no. 279;
  • and Law no.  7 of 18 February 2004, which is known as the code of conduct for public officials, and which was published in Monitorul Oficial 23 February 2004.

It should be well noted, however, that the term “administrative law” has a meaning quite different from its common-law counterpart.  It is not agency law, in the common-law sense, but deals with the entire, and relatively autonomous, body of law within the jurisdiction of the Government as opposed to that deriving from Parliamentary statutory law.

5.2 Banking law

After 1989, the Romanian Parliament adopted banking laws mirroring the privatization changes, and they can be accessed on line at http://www.bnro.ro/.  Currently, Romania has a multitude of private banks, a list of which can be found at http://banca.dot.ro/bnr.php3.

  • Law no. 312 of 28 Jun 2004 (the Romanian National Bank) in Monitorul Oficial no. 582, of June 30 2004, replaces previous legislation regarding the Romanian National Bank.

·         Law No. 58 of 5 Mar 1998 consolidated banking law and also covers the establishment of foreign-held banks. It was published in Monitorul Oficial no. 121, of 23 March 1998.

Strong supporters of economic changes in Eastern Europe, the World Bank and the International Monetary Fund (IMF) have been increasingly involved in Romanian politics.  Both institutions support the privatization of Romanian financial institutions, whose legal regime was established by Law no. 83/1997.  Their economic power, and Romania’s financial condition, means their decisions frequently had legal, as well as political, consequences.

However, since this guide was first written in 2000, the World Bank’s conditional commitments to Romania, totaling US$3 billion, have remained unchanged.  (See, World Bank – Romania)

5.3 Bankruptcy and insolvency law

Originally, issues of bankruptcy were governed by the Commercial Code.  Currently, Law no. 64 of 22 June 1995 regulates both the procedures for reorganization in commercial insolvencies and those for judicial liquidation.  In addition,

  • Law no. 83 of 15 April 1998 (modified by the Government Ordinance no 186 of 19 November 1999), published in Monitorul Oficial no.159 of 22 April 1998, regulates the procedures fo r judicial liquidation of banks, and
  • Law No. 149/2004 (insolvency code) further amends Law No. 64/1995.

5.4 Civil law

The body of Romanian law that defines the entire Romanian legal system is codified under the title of Codul civil român (The Romanian Civil Code). The Code came into force on Dec. 1, 1865.  The Civil Code, which follows the French Civil Code of 1804, was reinstated after 1989 (see Monitorul Oficial 21 Nov. 1991), excluding the sections on persons and personal status which are currently contained in Codul familiei (Family Code) and Decree no. 31 of 31 December 1953, and Decree no. 32 of 30 January 1954, both published in Buletinul Oficial from 30 January 1954. The official text of the Romanian Civil Code is available online as of 2001, via Legislaţie Româneasca at http://legal.dntis.ro/.

The Civil Code is divided into four parts:

  • Titlul Preliminar – Despre efectele si aplicarea legilor în genere (a preliminary part about the law’s effect and application)
  • CARTEA I – Despre persoane (a first part about subjects of law)
  • CARTEA II – Despre bunuri si despre osebitele modificãri ale proprietãtii (a second part about what property claims can become the object of law: mobile and immobile property)
  • CARTEA III – Despre diferitele moduri prin care se dobândeste proprietatea (a third part about ways of transferring property)

The New York University Law Library has ordered for its collection a recently published introductory textbook on Romanian civil law: Boroi, Gabriel, Drept civil. Partea Generala. Bucharest : Editorial All, 1998

For a more condensed explanation see, Flavius A. Baias, Romanian Civil and Commercial Law in Frankowski, Stanislaw & Stephan, Paul B. (editors), Legal reform in post-communist Europe: the view from within, 1995.

5.5 Civil and Criminal procedure

While the 19th century Code of Civil Procedure is still enforced (see Monitorul Oficial 26 July 1993) largely in its original form, the 19th century Code of Criminal Procedure was abrogated and replaced by the 1968 Code of Criminal (Penal) Procedure, which was substantially amended in 1973, 1996 (see Monitorul Oficial 14 November 1996), and  2003. The Code is expected to be replaced with new legislation by June 2005.

The Code of Civil Procedure is divided into seven books, or parts.

The first part covers judicial competency, the second covers certain general rules of procedure during trials, the third part covers  other general rules of procedure, the fourth part covers arbitration, the fifth part covers execution and attachment, and the sixth part contains specific rules of procedures governing specific types of trials, such as divorce. The last part contains transitional rules adopted in 1993.

The Code of Criminal Procedure is divided into two main parts: a general part and a special part. The general part is further subdivided into five titles:

  • TITLUL I – Regulile de bazã si actiunile în procesul penal (general rules in criminal trial)
  • TITLUL II – Competenta (rules of judicial competency)
  • TITLUL III – Probele si mijloacele de probã (rules of evidence and means of proof)
  • TITLUL IV – Mãsurile preventive si alte mãsuri procesuale (means of prevention)
  • TITLUL V – Acte procesuale si procedurale comune (general acts of criminal procedure)

The special part is further divided into four parts:

  • TITLU I – Urmãrirea penalã (pre-trial discovery)
  • TITLUL II – Judecata (criminal trial)
  • TITLUL III – Executarea hotãrârilor penale (sanctions)
  • TITLUL IV – Proceduri speciale (special criminal procedures)

Major procedural reforms were introduced by Law no. 281 of 24 Jun 2003 and Emergency ordinance 66 of 10 Jul 2003. The Code is expected to be replaced with new legislation by June 2005.

5.6 Citizenship and nationality

Law no. 21 of 1 March 1991, published in Monitorul Oficial 44/1991, establishes new rules governing citizenship.  Law no.15 of 2 April 1996, published in Monitorul Oficial 69/1996 governs the legal status of refugees. 

5.7 Communications law

After 1989, Romania adopted a series of new laws in a desire to ensure the rapid change of power. Among them are the new communications laws, including telecommunications and satellite transmissions (see Law of 12 July 1996 about postal service, published in Monitorul Oficial no. 156/1996, and Law no 504 of 2002 about radio and television, published in Monitorul Oficial no. 534 of 22 July 2002.

5.8 Commercial law

The 19th century Commercial code (Codul comercial), which followed the Italian model, is still enforced, although some of its provisions have been abrogated or amended.  The code is divided into four parts (books).

The first part is further subdivided into fourteen titles containing general rules of commerce (agents and acts of commerce). Title XIII contains insurance rules, some of them having been abrogated by post 1989 legislation.

The second part is further subdivided into nine titles containing maritime law rules.

The third and fourth parts contain bankruptcy rules, which have also been abrogated. (See section on bankruptcy)

After 1989, the Romanian Parliament adopted legislation pursuant to the government’s decision to adopt a capitalist legal system. 

·         Law no. 15 of 31 July 1990, published in Monitorul Oficial no. 98/1990, governs the reorganization of state-owned enterprises as autonomously administered concerns and specifies the procedures for privatization and creation of privately held business associations.

·         Law no. 26 of 5 November 1990, published in Monitorul Oficial no. 121/1990, provides the commercial and trade registry rules.

·         Law no 31 of 15 November 1990, published in Monitorul Oficial no 126-27/1990, covers the formation, powers, activities, and liquidation of partnerships, companies with limited liability, and joint stock companies.

·         Law no. 58 of 31 July 1991, published in Monitorul Oficial of 16 August 1991, amends and improves Law no. 15 in the area of commercial privatization.

·         Law no. 36 of 30 April 1991, published in Monitorul Oficial no 97/1991, contains the rules for the creation of private agricultural entities.

·         Decree No. 96 of 14 March 1990, in addition to Law no. 31, provides for the rules to encourage foreign capital investment.

·         Law no. 507 of 12 July 2002 about carrying on of commercial activity by natural persons was published in Monitorul Oficial of 6 August 2002.

A useful source of Romanian commercial law is Digest of Commercial Laws of the World, which is part of the Arthur W. Diamond collection.

5.8.1. Competition (Antitrust) law

The current law on the protection and encouragement of competition is Law no. 21 of 10 April 1996 (in force since 1 February 1997), abrogated and replaced Law no. 11 of 29 January 1991, and sections 36 to 38 of Law 15 of 1990.

5.8.2 Securities

Law 297 of 28 June 2004 about capital markets, which was published in Monitorul Oficial 2004 no. 571, is a revision and consolidation of several basic acts governing investments, including Emergency ordinance 28 of 2002 as amended, governing securities, investment services and regulated markets, and also Ordinances 24 and 30 of 1993.

Additionally,

·          Emergency ordinance 27 of 13 March 2002 regulates the commodities exchange and derivatives markets, and

·         Emergency ordinance 26 of 13 March 2002 regulates collective investment funds and societies.

The Romanian Chamber of Commerce and Industry and the National Trade Registry Office created an electronic database that assists investors in finding business-related information about Romanian-based firms.  Investors may access Rasdaq and the Bucharest Stock Exchange on line

5.9 Constitutional law

Romania is a presidential republic and a unitary state, which is governed directly by the elected president.  The president shares legislative power with the bi-cameral Parliament, the Prime Minister, and the Council of Ministers.  However, laws, the legislative statutes with the highest authority after the Constitution and its amendments, are adopted by the Parliament.  The president and the Council of Ministers can also legislate by delegation in certain situations, such as emergency or pursuant to prior laws.

After 1989, according to its new political regime, Romania adopted by referendum a new Constitution, its seventh, on 13 December 1991.

The prior Romanian constitutions are: the 1866, 1923, 1938, 1948, 1952, 1965, and 1991 Constitutions.  As further explained below, the 1991 Constitution was recently amended, and its 2003 amended version is also available on-line.

The 1991 Constitution may be found in English on the Romanian Parliament’s web site at http://diasan.vsat.ro. It can also be found in Central and East European Legal Materials, which is available in print (vol. 5) as well as on line at http://www.jurispub.com/ceel/ (Transnational Juris Publications, 1990-) in most law school libraries’ collections. 

For an introductory textbook on Romanian constitutional law by a well-established Romanian Professor of Constitutional law at Cluj University, see: Draganu, Tudor. Drept Constitutional si Institutii Politice: tratat elementar, Bucuresti : Lumina Lex, 1998.

For a monograph written by a younger legal expert, the translated title of which is “Constitution of Romania, 1991: A Critical Approach”, see Dianu, Tiberiu, Constitutia României din 1991 : o abordare critica. Bucuresti : Oscar Print, 1997.

Major and far-reaching amendments to the Constitution of 1991 were introduced by Law No. 429 of 18 September 2003 on reform of the constitution, which was published in Monitorul Oficial no. 758 of 29 October 2003. This collection of amendments accommodates EU directives and related political reforms.    Romania is scheduled to join the European Union with Bulgaria in 2007.

·         Full English text of the Law No. 429 is available on the Chamber of Deputies’ web site at http://www.cdep.ro.

5.9.1. Electoral law

Romanian elections take place according to Law No. 68 from July 15, 1992, which, inter alia, provides that

“To ensure the proper functioning of electoral proceedings, the Central Electoral Bureau, Constituency Bureaus, and Electoral Bureaus of polling stations shall be established for each election, under the conditions of the present law.”

Art. 23. – (1)

Since 1989, there have been five parliamentary and presidential elections. The most recent ones took place in 2000, and November/December 2004.

Since 1989, political parties have become a major presence in Romanian elections. Law no. 14 of 5 January 2003 about political parties was published in Monitorul Oficial no. 25 of 17 January 2003.

5.10 Contract law

Romanian law does not contemplate “contract law” as a separate legal discipline.  Contracts are viewed as a category of civil law (see bail, rent, etc) or as part of commercial law (when the focus is on the status of the contracting parties and not on the substance of the contract). See e.g., Civil Code Book III, Title 3, chapters 1–4 (sections 942–1,222).

5.11 Corporate (company) law – Romania

Based on the information provided by the World Bank on its website, it is extremely inexpensive to launch a business in Romania. It takes 28 days on average and there is no minimum deposit requirement to obtain a business registration number.

Legal Framework

  • Law No.31/1990 concerning commercial companies.
  • Law No.15/1990 on State-owned enterprises reorganization into regii autonome and commercial companies.
  • Law No.26/1990 on the Register of Commerce modified by Law No.12/1998.
  • Decree – Law No.122/1990 on the authorization and operation in Romania of the Representative Offices of foreign companies and corporations.
  • Government Emergency Ordinance No.30/1997 on the reorganization of regii autonome.
  • Law No.99/1999 on certain measures for the acceleration of the economic reform.
  • Law No.105/1992 on the Regulation of the Private International Law Relationship.
  • Law No.133/1999 on incentives for the private investors to set up and develop SMEs.
  • Government Emergency Ordinance No.76/2001.
  • Government Decision 1.344/2002 approving the amount of taxes and tariffs collected by the Trade Register offices affiliated within the Court of Justice as well as the tariffs related to the operations performed by the Sole Office.  This decision provides lists the level of charges and tariffs to be paid by companies for Trade Register-related activities, though these amounts have not changed compared to those provided by the prior Government Decision 574/2002.
  • Government Decision 1.345/2002 approving the form and content of incorporation request and incorporation certificate for companies.  This Decision provides for the standard form and content of application of incorporation and incorporation certificate for companies.
  • Government Decision 1.346/2002 regarding the assistance services provided by the Trade Register offices affiliated within the Court of Justice for the registration and authorization of traders.  This Decision lists the types and conditions under which assistance services are provided by the Trade Register offices prior to the registration and authorization of traders.   The new regulation establishes the tariffs for assistance services.
  • Order 601/2002 updating the Classification of the national economic activities – CAEN
  • The Order approves the updated CAEN Code that entered into force starting 1 January 2003.
  • Order No. 2.735/C/2003 of the Minister of Justice
  • The Order approves the fees for auxiliary services provided by the Trade Register and the National Trade Register Office.
  • Law no. 370/11 June 2002, amending the Government Emergency Ordinance No. 76/2001.  According to this Law, it is no longer necessary to obtain operation authorizations (fire extinction and prevention, environmental, sanitary, sanitary-veterinary, labor protection) if, at the registered or secondary office, no activities from the company’s object of activity are performed.   In these cases, the company must submit a statement on its own liability as regards the compliance with the operation conditions and does not have to pay the authorization taxes. The authorizations shall be requested when, at the respective headquarters, activities from the company’s object of activity commence to be actually performed.  The amending law also provides that the specific fields of activity for which the evaluation of the headquarters by the relevant authorities will be necessary for the issuance of authorizations, shall be established by Government decision. In all the other cases, the applicants’ statements on their own liability regarding the compliance with the operation conditions will be sufficient.
  • Law no. 370/2002 changes certain terms in the registration and authorization procedure. The general term of 20 days in which the Unique Bureau must issue the registration certificate may be extended up to 30 days for companies operating in more than 5 secondary offices and for those performing more than 5 activities for which authorizations are necessary.  In case certain permits or authorizations are not issued, the company may require, within 90 days, that the procedure be restarted, paying again the taxes for the non-issued authorizations. The Ordinance provided that, in case this term is not observed, the authorization procedure must be restarted and taxes paid in full.
  • Law no. 370/2002 provides that failure to observe the 90-day delay leads to the annulment of the registration certificate and the deletion of a company from the trade register, based on the judgment of the delegated judge. Under these circumstances, the applicant may establish a new company by restarting the entire registration and authorization procedure.
  • Government Decision no. 572/2002 for the establishment of the standard form and substance of the company’s registration application and certificate;
  • Government Decision no. 573 of 13 June 2002 for the approval of procedures for the authorization of companies’ operation;
  • Government Decision no. 574/2002 for the approval of values of taxes and tariffs collected by local trade and industry chambers for register operations and for operations made by the Unique Bureau;
  • Government Decision no. 575/2002 on the assistance services provided by local trade and industry chambers for the registration and authorization of companies’ operation.
  • Law No. 183/2004
  • The Law approves the Ordinance No. 15/2003 amending the Law No. 26/1990 regarding the Trade Register.
  • Law No. 359/2004 regarding the simplification of the formalities for the registration in the Trade Register of the natural persons, family associations and legal persons, for their fiscal registration, as well as for the authorizations of functioning of the legal person.
  • Law No. 359 stipulates the procedure of registration with the trade register, the specific simplified ways of granting the Unic Registration Code (CUI), the procedure for certifying the functioning and for changing the registration certificate and the tax registration certificate. The law provides the list of the assistance services to be supplied by the trade register’s offices to individual entities, family associations and legal entities in order to guide them in the registration procedure.  This law came into force on 13 October 2004.

For more information, see the National Trade Register Office.

5.12 Criminal Law

Romania’s 1968 Penal code (Codul Penal) was amended in 1973 and 1996, and with major changes is still in force. However, the Penal code – as well as the Penal Procedure Code – is expected to be reissued by the Parliament and to go into effect June of 2005. 

·         The 1973 version reduced the overall number of indictable offenses, introduced lighter sentences as well as a system of release on bail for those accused of minor crimes was established, and mandated rehabilitation instead of prison sentences in many cases.  After 1989, the death penalty was replaced by life in prison. Law no. 7 of 1989 abolished the death penalty.

The Penal code is divided in two parts: a general and a special part.  The general part is further subdivided into eight titles: the first covers the foundation of penal law, the second covers the general forms of crimes, the third covers sanctions and their applications, the fourth covers situations in which there is no criminal responsibility, the fifth covers juvenile delinquency, the sixth the means of security, the seventh describes situations in which criminal responsibility and sanctions do not apply, and the eighth title contains a description of various criminal terms.

The special part is further subdivided into eleven titles, each one describing the regime (elements, responsibility and sanctions) applicable to specific types of crimes.

For more recent amendments to the Romanian penal code see the New York University Library ‘s collection: For a  more condensed explanation see, Dianu, Tiberiu, The Romanian criminal justice system in Frankowski, Stanislaw & Stephan, Paul B. (editors), Legal reform in post-communist Europe : the view from within, 1995.

The official text of the Penal Procedure Code is available online, as of 2000, via Legislatie Româneasca at http://legal.dntis.ro/. Major procedural reforms were introduced by Law no. 281 of 24 Jun 2003 and Emergency ordinance 66 of 10 Jul 2003.

5.13 Employment & labor law

The Romanian socialist labor code (Codul Muncii), Law no. 10 of 23 November 1972, was abrogated as many of its sections, such as the one on the guaranteed right to work (Art. 2), had become obsolete by the nature of the new political and economic environment.

The new labor code, Law no. 53 of 24 January 2003, was published in Monitorul Oficial of 5 February 2003, and is available online.

5.14 Environmental Law

The basic law on the protection of the environment is Law no. 137 of 29 December 1995, which is published in Monitorul Oficial of 30 December 1995. However, after the disastrous Baia Mare gold mine cyanide spill of 30 Jan 2000, the law was republished in consolidated text with amendments in Monitorul Oficial of 17 February 2000.

For background information on environmental law in Eastern Europe see: Environmental problems in Eastern Europe. London ; New York : Routledge, c1996.

5.15 Family Law

The Romanian Family Code ADD (Codul Familiei) became law on January 4, 1954, and was amended in 1956, 1966, 1970, and 1974.

It is divided into three titles: the First Title defines marriage (TITLUL I – Cãsãtoria); the Second Title defines relatives (TITLUL II – Rudenia) and the Third Title defines legal representation, various degrees of incapacity and legal protection (TITLUL III – Ocrotirea celor lipsiti de capacitate, a celor cu capacitate restrânsã si a altor persoane).

Among the more recent family legislation is:

·         Law no. 217 of August 2003 on prevention of domestic violence and

·         Emergency ordinance no. 143 of October 2002 regarding the protection of minors from sexual abuse.

5.15.1 Family Law – Adoptions

From the U.S. Embassy in Bucharest’s website, you learn that inter-country adoptions are generally unavailable.  However, for more information you are encouraged to contact the Embassy.

The legal frame for adoption by foreigners is offered by sections 66–85 of the Family code, which was amended by Law No. 11 of 31 July 1990, published in Monitorul Oficial 1990 no. 95 and Law no. 11 of 26 July 1991.

For adoption procedures and requirements discussed and accompanied by English translations see Internal and Intercountry Adoption Laws (Kluwer Law International, -2002).

5.16 Insurance law – Romania

Among the major pieces of legislation in this area are:

·         Law no. 136 of 29 December 1995, published in Monitorul Oficial of 30 December 1995, on insurance and reinsurance, and

·         Law no.145 of 24 July 1997, published in Monitorul Oficial no 178 of 1997, on health insurance.

5.17 Intellectual property law – Romania

·         Copyrights:

Law no. 8 of 14 March 1996, published in Monitorul Oficial no. 60 of 1996, on copyright and neighboring rights, is an almost exact replica of the current Spanish copyright law, which was the most protective law of its time.  Additionally, Law no 186 of 9 May 2003 further overviews the encouragement of writing and literary activities and publishing.

See the Romanian law in Copyright and neighboring rights, laws and treaties.

·         Patents:

Law no. 64 of 11 October 1991, published in Monitorul Oficial of 21 October 1991, on inventions and innovations is an entirely new regulation.

·         Trademarks and Tradenames:

Law no. 28 of 29 December 1967 on marks of manufacture, commercial and service marks was amended by Decree no 485 of 27 December 1977.

5.18 Private International Law- Conflict of Laws

In 1992, Romania enacted a new law on conflicts of law (legea cu privire la reglementarea raporturilor de drept international privat):

– Law no 195 of 22 September 1992 was published in Monitorul Oficial of 1 October 1992

In effect, this law unifies Romanian conflicts law, abrogating articles 885, 1,773 and 1,789 of the Civil Code and article 375 of the Code of Civil Procedure.

5.19 Real Property Law

The Romanian Civil Code (Book II, Titles 1 & 2) and the numerous statutes adopted after 1989 ensure a complex domestic real estate legal regime. 

Some of the new laws are:

·         Law no. 18 of 1991, published in Monitorul Oficial no 37 / 1991, on real property and ownership;

·         Law no. 14 of 11 Oct 1996, published in Monitorul Oficial of 30 November 1992;

·         Law no. 7 of 1995, published in Monitorul  Oficial of 26 March 1996.

5.20 Taxation law – Romania

The taxation system has dramatically changed in Romania since 1989. The current legal regime is provided by

·         Law no. 12 of 30 January 1991, published in Monitorul Oficial no 25 /1990, on excess profits tax; and Law no. 73 of 12 July 1996, published in Monitorul Oficial no 174/1990, on profits tax;

·         Law no. 32 of 29 March 1991, published in Monitorul Oficial no. 70/1990, on wage and salary tax;

·         Law no. 27 of 17 May 1994, published in Monitorul Oficial of 24 May 1994, on local taxation;

·         Law no.34 of 30 may 1994, published in Monitorul Oficial no. 140/1990; and

·         Law no. 74 of 12 July 1996, published in Monitorul Oficial no. 175/1996, which was replaced by Law 500 of 11 Jul 2002 regarding public finances, published in Monitorul oficial of 13 August 2002.

For a detailed presentation of Romania’s taxation system, see Taxation and investment in Central and Eastern European countries (G. Erdös, W.G. Kuiper, and J.  Wheeler, eds).

5.21 Tort law – Romania

The Romanian legal system, like all civil law systems, includes “tort law,” although expressed in the far more typically laconic civil law style, and therefore in the form of a very general prohibition against wrongful (and undefined in the more highly developed common-law sense) conduct. Tort law is contained in the Civil Code, and it is contained in a handful of paragraphs (articles).

In addition, on August 2, 2000, the Romanian Parliament adopted Law 148/2000 – the Publicity Law – (published in Monitorul Oficial No. 359 of August 2, 2000), which governs advertising and consumer protection.

5.22 Trusts and estates law – Romania

Romania abrogated the trusts section of its Civil code. The Civil code still contains the rules on inheritance and succession (Code Civil arts 644-941)

6. International Law & EU Expansion

6.1 EU Expansion

The EU Expansion, also knows as enlargement, is a unique, historic task of the European Union “to further the integration of the continent by peaceful means, extending a zone of stability and prosperity to new members.” For that purpose, in March 1998 the EU formally launched the process that will make enlargement possible, and that “embraces thirteen applicant countries,” including Romania.

6.2 Romania’s Accession

Romania presented its application for membership in the European Union on 22 June 1995 along with a national pre-accession strategy and a declaration signed by the Presidents of the Republic, the Senate and the Chamber of Deputies and the Prime Minister and the leaders of all the political parties represented in Parliament.

In March 1998, the EU entered into an accession partnership agreement with Romania.

The agreement established that the EU will periodically review Romania’s progress “in meeting the objectives set out in this Partnership”.  Accordingly, the EU has produced periodical reports on Romania’s progress on accession, the last one being produced in 2004.  The EU’s position seems to be that

“[t]he Brussels European Council in June 2004 reiterated the Union’s common objective to welcome Bulgaria and Romania as members of the Union in January 2007 if they are ready […]”