UPDATE: Doing Legal Research in Romania
Update by Anamaria Corbescu
Anamaria Corbescu completed her J.D. at the University of Bucharest (Bucharest, 2002) and was a Fulbright scholar pursuing her LL.M. studies at Columbia University in New York (2009). Her education also includes: the EU Law Program (University of Bucharest, 2001), the American Institute on Political and Economic Systems (Georgetown University, Washington D.C./Charles University, Prague, 2001), the Academy of Economic Studies (M.Sc. Econ., Bucharest, 2004), Foundations of American Law and Legal Education Program (Georgetown University, Washington D.C., 2008).
NOTE: This article outlines 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.
Published July/August 2020
(Previously updated by Dana Neacşu in April 2006 and November 2007; and by Anamaria Corbescu in October 2009, May 2012, and February 2017)
Table of Contents
- 1. Introduction: The Romanian Legal System
- 2. Romanian Primary Legal Resources
- 3. Romanian Secondary Legal Resources
- 4. Romanian Legal Organizations (Law Libraries, Law Schools, etc.)
- 5. Romanian Legal Research: By Topic
- 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
- 5.7. Communications Law
- 5.8. Commercial Law
- 5.9. Constitutional Law
- 5.9.1. Electoral Law
- 5.10. Contract Law
- 5.11. Corporate (Company) Law
- 5.12. Criminal Law
- 5.13. Employment & Labor Law
- 5.14. Environmental Law
- 5.15. Family Law
- 5.16. Insurance Law
- 5.17. Intellectual Property Law
- 5.18. Private International Law – Conflict of Laws
- 5.19. Real Property Law
- 5.20. Taxation Law
- 5.21. Tort Law
- 5.22. Trusts and Estates Law
- 6. Romania and the EU
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", but they may be invoked to support a line of reasoning already vetted by court in a similar situation, having an orientation purpose.
- The doctrine provides guidance as to possible analogies 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 prosecution phase, where relevant evidence is gathered.
- There are no jurors.
- The judge has a proactive role in searching for the judicial truth.
Romania follows the principle of the separation and balance of powers - legislative, executive, and judicial – within the framework of constitutional democracy.
1.1. The Legislative Branch
The Parliament is the supreme representative body of the Romanian people and the sole legislative authority of the country, consisted of two chambers: a lower house, the Chamber of Deputies, and an upper house, the Senate.
The Parliament enacts statutes, which are the main source of legal rules. Such statutes are officially published in the Official Gazette (Rom. Monitorul Oficial), the official journal of Romania (which runs its own publishing house, under the same name), where all legislation and other official notices are publicized.
The Parliament is also the source of the Constitution, the country’s fundamental law regulating the government structure, the fundamental rights, liberties and obligations of the country's citizens, the legislative process, as well as the core principles of economy and public finance. In addition, the 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 are part of the executive branch (local public administration) and which, within defined geographical and jurisprudential boundaries, are empowered to enact binding decrees within their respective territories, based on the principles of decentralization, local autonomy, and decentralization of public services (Constitution, Title III, 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. Each Ministry has its own website and can be contacted by phone, fax or email. For example, sources about The Ministry of Foreign Affairs are available online, including information about Romania’s EU and NATO membership and the role of the Ministry of Foreign Affairs in the domestic application of international treaties, agreements and conventions, signed or ratified by Romania.
The Government issues decisions and ordinances (Constitution, Art. 108) whose brief subject-matter descriptions and statements of purpose can be viewed online. The President may issue Presidential decrees (Constitution, Art. 100). The ministries also issue a large array of rules, in the form of regulations (Rom. regulamente) and norms (Rom. norme), approved by ministerial orders (Rom. ordine) and decisions (Rom. hotarari). Additionally, other agencies may issue rules, such as the rules issued by the National Agency of Control of Exported Products (Rom. Agentia Nationala de Control al Exporturilor - ANCEX). Finally, at local level, the Government appoints an executive representative - Prefect (Rom. Prefect) in each county and in the city of Bucharest, who is the Government’s representative at the local level (Constitution, Art. 123). Random executive orders, from both the national and local level, may be, in general, freely accessed online, as the vast majority of public authorities, agencies or other government bodies have their own websites, which are regularly updated.
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 (Rom. judeţ) and municipal level.
Romanian justice is organized on the principle of double jurisdiction. Therefore, as a rule, any case decision from a first-instance court (Rom. judecatorie) may be challenged and subject to a complete de novo retrial on the facts, the procedure and the law by a higher court – tribunals (Rom. tribunale) or courts of appeals (Rom. curti de apel). The higher courts hear appeals from the lower courts, but, depending on the subject-matter jurisdiction, 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 Ministry of Justice was responsible for the administration of justice. After 1989, the Supreme Court of Justice subsequently renamed the High Court of Cassation and Justice of Romania (Rom. Înalta Curte de Casaţie şi Justiţie a României), 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, particularly in criminal cases. The Public Ministry, which discharges its powers through a system of Public Prosecutors, replaced the former Office of the Prosecutor General (Rom. Procuratura) – which had been established in 1952.
Civilian judges and Public Prosecutors are selected based on a national examination, organized by the Superior Council of the Magistracy. Once thereafter appointed, judges are, by law, irremovable and therefore enjoy life tenure, under article 125 of the Constitution. The Council acts as an administrative/disciplinary organ, whose purpose is to guarantee the independence of justice. It is consisted of 19 members, of whom: (i) 14 are magistrates, elected in the general meetings of the magistrates, and validated by the Senate, (ii) 2 are representatives of the civil society, specialists in law, who enjoy a good professional and moral reputation, elected by the Senate, and (iii) the Minister of Justice, the president of the High Court of Cassation and Justice, and the general public prosecutor of the Public Prosecutor's Office attached to the High Court of Cassation and 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, 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 (Constitution, Art. 142).
In addition, the Legislative Council is an advisory expert body of Parliament that reviews and opines on draft legislation for the purpose of a systematic unification and co-ordination of the whole body of laws (Constitution, Art. 79).
2. Romanian Primary Legal Resources
Formally, Romanian courts apply only written legislation, which is 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-issued "statutes." 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 (Engl. Official Gazette) after the 1989 political changes.
Online, the legislation is available through the web page of the official legal publication, Monitorul Oficial and, generally, on the websites of the relevant public authorities – the Parliament, the various ministries and other bodies with regulatory powers.
When a statute is silent as to a particular set of facts, scholarly texts (textbooks and treatises) are heavily used by judges and by the litigating parties for guidance in preparing their line of arguments. The law libraries of Harvard Law School and New York University School of Law have large collections of such Romanian works.
2.2. Case Law
The Romanian legal system, like any other civil law system, does not recognize legal precedent as stare decisis, with one notable exception in the constitutional law area.
Every time a court is confronted with an unconstitutional statute, it has to defer the matter to the Constitutional Court, the sole authority of constitutional jurisdiction in Romania, and await its decision in every such case, before the matter at issue can be retried upon one party's request. Once declared unconstitutional, the statute in question is automatically abrogated (totally or partially) and courts at every level are prevented from ever applying it again. The decisions of the Constitutional Court are available online.
In addition, the decisions of the highest Romanian court (High Court of Cassation and Justice), 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.), it may be accessed, to a certain extent, online. Often only their summaries (all in Romanian) are available. However, the search may be done by subject matter, by typing words contained in the text of the decision.
2.3. European Legislation and Case Law
Romania has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms. 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 (ECHR). 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. The Courts' decisions regarding Romania may be viewed on the EHCR page.
After a long and sinuous accession process – Romania presented its application for membership in the European Union on 22 June 1995 – Romania was finally admitted to the EU family on January 1st, 2007. As a result, Romania has a judge in the Court of Justice of the European Communities (EJC) and another one in the Court of First Instance (CFI). Both judges are appointed for a six-year term, which can be renewed.
The ECJ has the power to settle community legal disputes between EU member states, EU institutions, businesses and individuals. The CFI is responsible for giving rulings on certain kinds of case, particularly actions brought by private individuals, companies and some organizations, and cases relating to competition law. Thus, if ECJ interprets Community law, the Romanian national courts will be expected to apply the EJC’s interpretation of Community law to the facts of the case.
3. Romanian Secondary Legal Resources
3.1. Textbooks, Treatises & Legal Journals
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. Researchers can use catalogs from major universities including but not limited to Harvard Law School’s HOLLIS, New York University Law School’s JULIUS, Columbia Law School’s PEGASUS, and Yale Law School’s MORRIS to search for Romanian legal treatises.
The major public law schools have their own law reviews. For example, the Bucharest Faculty of Law publishes Analele Universitatii Bucuresti. Seria Drept. Other legal periodicals that are popular among practitioners are Dreptul (Engl. The Law), Pandectele Romane (Engl. The Romanian Pandects), Revista Romana de Drept Privat (Engl. The Romanian Private Law Review) and Revista de Drept Comercial (Engl. The Commercial Law Review), all three published by commercial publishers and containing notes, commentaries, and articles on newly evolved legal issues.
There are a few journals published by Wolters Kluwer:
- Romanian Pandects is a collection of essential Romanian jurisprudence, doctrine and legislation. Well-known practitioners and prestigious law professors contribute to the content of the journal that covers doctrine articles and the jurisprudence of the High Court of Justice and Cassation, Constitutional Court, appeal courts, high courts, courts of justice, and other judicial institutions.
- Romanian Business Law Review is dedicated exclusively to business law. The journal contains doctrine articles and commented decisions of the national and European courts. The articles are written by personalities of the academic and professional law field and cover company law, obligations, insolvency, competition law, arbitration.
- Romanian Labor Law Review contains articles and jurisprudence about labor law, written by prestigious authors. In the pages of the journal, readers can find debates about new laws, new law projects and jurisprudence. In the same time, readers get to know the European and the international labor law, other countries’ regulations and foreign jurisprudence.
- Romanian European Law Reviewoffers to jurists and to all interested by the European law evolution essential information concerning the European institutions, the application of European regulations and their influence on domestic law. The authors of the doctrine articles are personalities of the academic and professional law field, from Romania and from abroad. Jurisprudence section offers important overviews of the European courts decisions.
3.2. WWW Meta-sites for Legal Research
- 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."
- Part of the FindLaw legal search engine
- 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
- Legal search engine maintained by Washburn University School of Law Library (no longer updated as of June 1, 2019)
- EUR-Lex (free access to EU treaties, legislation, case-law and legislative proposals, including correspondence table for Romanian legislation) has a Romanian version
- Juridice (a commercial online platform hosting legal news and articles, as well as legal marketing)
- World Bank – The Doing Business Project
- Commercial legal publishers: Wolters Kluwer or Chambers, PLC and Legal 500 also have website sections dedicated to Romania.
4. Romanian Legal Organizations (Law Libraries, Law Schools, etc.)
4.1. Romanian Law Schools
The Romanian higher education system comprises both of 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. 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, first year classes include: General Theory of Law, Romanian State and Law History, Romanian Constitutional Law and Political Institutions, Roman Law, Civil law (I), Management, Political Science, Philosophy, Sociology, Roman Law, and/or a foreign language. The second year includes: Civil law (II), General Criminal Law, Administrative Law, International Public Law, Financial and Fiscal Law, Criminology, and International Protection of Human Rights. The third year includes: Civil Law (III), Special Criminal Law, Procedural Criminal Law, Employment Law, EU Law, Banks and Currency Law, Competition Law, Intellectual Property Law, International Trade Law, International Private Law, Criminal Investigation, Procedural Civil Law, Forensic Pathology, Family Law and License Examination Training.
After graduation and receipt of an approved law degree, students must pass various professional examinations in order to legally practice law as lawyers, magistrates (judges or prosecutors), public notaries, and public officials within various state bodies or bailiffs. Further, for most professions, upon passing the respective admission exam, candidates must enroll in a form of supervised practical training (usually for two-year periods), leading to a final examination, which, once successfully completed, ensures full qualification.
4.2. Romanian Law Societies and Bar Associations
Law students have always been organized in a variety of law societies. Before 1989, as part of the so-called Communist Party, per each public law school, and, after 1989, according to interests, for example, the European Law Students’ Association (ELSA) or the Association of Law Students (ASD). The rules of legal practice were provided by Law no. 51 of 7 January 1995, on the profession of advocate. Currently, Romanian lawyers have a variety of professional associations. The largest one is Uniunea Nationala a Barourilor din România - UNBR (Engl. the Romanian National Bar Association). Each county, including Bucuresti (Engl. Bucharest), the capital, has bar associations; see Baroul Bucuresti (Engl. the Bucharest Bar Association) for more information.
4.3. Romanian Law Libraries/Library Catalogs
Generally, each public law school and each court of appeal and district court in major cities has a law library. The Ministry of Justice and the Institute of Legal Research of the Romanian Academy have their own law library as well. In addition, the Library of the Romanian Academy stores over 7 million books, and some of them are of legal interest. The National Library also contains legal titles and is opened to everybody older than 16. Its catalog can be accessed online.
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 offices in Bucharest. Some of them may be contacted via the Internet; see the Legal500.com's listing of Romanian law firms.
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:
- Government Emergency Ordinance no. 57/2019 regarding the Administrative Code
- Law no. 554/2004 regarding the administrative conflicts (administrative contentious procedures), as subsequently amended
- Law no. 161/2003 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, as subsequently amended
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
Currently, Romania has a central bank (Romania’s National Bank, Rom. Banca Nationala a Romaniei) and a multitude of private banks, a list of which can be found on the national Bank’s site. The relevant legislation implements the European legislation and key-pieces include:
- Law no. 312/2004 regarding the Statute of the Romanian National Bank
- Government Emergency Ordinance 99/2006 regarding credit institutions and capital adequacy, as subsequently amended
- Law no. 127/2011 regarding the electronic money issuance, as subsequently amended
- Law no. 93/2009 regarding non-banking financial institutions, as subsequently amended
- Government Emergency Ordinance no. 113/2009 regarding payment services, as subsequently amended
5.3. Bankruptcy and Insolvency Law
Currently, issues of bankruptcy are governed by Law no. 85/2014, which regulates the insolvency procedure, as well as its prevention.
Generally, insolvency proceedings in Romania may be initiated against companies unable to pay their outstanding debt amounting to at least RON 40,000 (approximately EUR 8,300), not paid within 60 days from maturity date. Bankruptcy may also be requested by employees provided that the company has failed to pay at least 6 average salaries at country-level per employee.
5.4. Civil Law
The body of Romanian law that defines the entire Romanian civil law system is codified under the title of Codul Civil Român (Engl. The Romanian Civil Code), initially published in July 2009, but enacted on October 1, 2011 (See Monitorul Oficial no. 505 of July 15, 2011). The previous code, in force since December 1, 1865 followed the French Civil Code of 1804 and had been reinstated after the fall of the communist regime in Romania, in 1989 (See Monitorul Oficial 21 Nov. 1991).
Inspired from the provisions of other codes such as the Code of Quebec, the Italian Civil Code, the Swiss Civil Code, as well as from the solutions adopted by the UNIDROIT Principles, the Civil Code clarifies the key-principles of Romanian law and crystallizes certain legal concepts that have been long recognized by the legal literature and practice, as adaptations to the late 20th and 21st centuries. The Civil Code is part of a larger legislative reform envisaged to be implemented in stages, and which will also include enactment of a new Civil Procedure Code, a new Criminal Code and a new Criminal Procedure Code.
The Civil Code regulates matters of civil, commercial and family law, which were, until then, subject to distinctive codes of norms (the old Civil Code, the Commercial Code and the Family Code) and, hopefully, its integrated approach will bring a coherent and more modern approach of current legal issues. Art.2 of the Code states that it covers both the moral and pecuniary relationships with legal relevance among persons, irrespective of the governing area of law (commercial, employment, etc.) and defines the concepts of “professionals” and “enterprise” (covering NGOs, companies and any legally relevant entities), with a view to cover the entire range of private law subjects.
The current Romanian Civil Code is divided into seven parts:
- Book I “About Persons”: Title I “General Provisions”; Title II “The Individual”; Title III “Protection of the individual”; Title IV “Legal Entity”; Title V “Defense of non-patrimonial rights”
- Book II “About Family”: Title I “General provisions”; Title II “On Marriage”; Title III “Kinship”; Title IV “Parental authority”; Title V “Obligation of support”
- Book III “About Goods”: Title I “Assets and general provisions on real rights”; Title II “Private property”; Title III “Dismemberments of the Private Ownership Right”; Title IV “Trust”; Title V “Administration of the property of others”; Title VI “Public Property”; Title VII “The Land Book”; Title VIII “Possession”
- Book IV “On Inheritance and Liberalities”: Title I “General Provisions on Inheritance”; Title II “Legal Succession”; Title III “Liberalities”; Title IV “Transfer and partition of the estate”
- Book V “On Obligations”: Title I “General Provisions”; Title II “Sources of Obligations”; Title III “Modalities of the Obligations”; Title IV “Complex Obligations”; Title V “Performance of Obligations”; Title VI “Transfer and Transformation of Obligations”; Title VII “Extinguishment of Obligations”; Title VIII “Restitution of Performances”; Title IX “Various special contracts”; Title X “Personal Security”; Title XI “Privileges and security interests in rem”
- Book VI “On Extinctive Prescription, Forfeiture and Calculation of Periods”: Title I “Extinctive Prescription”; Title II “General Regime of Forfeiture Periods”; Title III “Calculation of Periods”
- Book VII “Provisions of Private International Law”: Title I “General Provisions”; Title II “Conflicts of Law”.
5.5. Civil and Criminal Procedure
The Civil Procedure Code has several sections, as follows
- Preliminary Title “Regulatory scope of the Civil Procedure Code and Fundamental Principles of the Civil Trial”
- Book I “General Provisions”
- Book II “Adversarial procedure”
- Book III “Non-Adversarial Judicial Proceedings”
- Book IV “On Arbitration”
- Book V “Enforcement”
- Book VI “Special Procedures”
- Book VII “International Civil Trial”
The Criminal Procedure Code has two parts, a general and a special one, further divided as follows:
- The General Part
- The Criminal Procedure Law Principles and Limits of Application
- The Criminal Action and Civil Action in the Criminal Trial
- Participants to the Criminal Trial
- Evidences, means of proof and trial proceedings
- Preventive Measures and other Procedural Measures
- Common Trial Activities and Procedural Writs (Summoning and Communication of Procedural Writs)
- The Special Part
- The Criminal Investigation
- Preliminary Chamber
- Court Trial
- Special Procedures
- Enforcement of criminal law decisions
- Final Provisions
5.6. Citizenship and Nationality
Law no. 21/1991, as subsequently amended, establishes the main rules governing citizenship. Law 122/2006 regarding asylum in Romania, as subsequently amended, governs the legal status of refugees. In addition, Government Emergency Ordinance 194/2002 regarding the foreigners’ regime in Romania, as amended, regulates the status of non-EU and non-EEA citizens in Romania, including the regime of visit, work or stay visas, among others. The General Inspectorate for Immigration is the central administration authority in charge of implementing the Romanian policies on migration and asylum.
As for EU and EEA citizens, who may travel and work freely in Romania, Law 16/2017 sets out the conditions of their secondment to Romania.
5.7. Communications Law
After 1989, Romania adopted a series of new laws in a desire to ensure the rapid change of power, which has been gradually reshuffled to result in a more modern and efficient legal framework at present. Among these changes were the new communications laws, including telecommunications and satellite transmissions (e.g., Government Emergency Ordinance no. 111/2011 regarding electronic communications, Government Emergency Ordinance no.13/2013 on postal services and Law no. 504/2002 on radio and television, all subsequently amended).
The National Authority for Communications has broad regulatory and oversight powers and its main objective is to enhance competition in the electronic communications and postal services sectors, with a view to protect the end-users. Radio frequencies and numbering resources are state-owned, and the National Authority for Communications manages them by allocating them to private actors.
The National Audiovisual Council has special regulatory, enforcement and oversight powers with respect to mass media (Romania’s TV and radio stations) and the content of audiovisual programs in general.
5.8. Commercial Law
Upon the entry into effect of the new legal framework for civil and commercial matters, namely the Romanian Civil Code, on October 1, 2011, the 19th century Commercial Code (Rom. Codul Comercial), which had followed the Italian model, was been abrogated.
In addition to the new Civil Code, commercial law matters are also governed by certain special legislation, which includes:
- Law no. 15/1990, as amended, 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. 26/1990, as amended and republished, provides the commercial and trade registry rules
- Law no. 31/1990, as amended and republished, covers the formation, powers, activities, and liquidation of partnerships, companies with limited liability, and joint stock companies
- Law no. 36/1991, as amended, contains the rules for the creation of private agricultural entities
- Government Emergency Ordinance no. 44/2008, as amended, regarding the authorization of individuals and family association that carries out independent commercial activities
A useful source of Romanian commercial lawis Digest of Commercial Laws of the World, which is a part of the Arthur W. Diamond collection and NYU Law Library.
Competition (Antitrust) Law: The current law on the protection and encouragement of competition is Law no. 21/1996, as amended, on competition, and Law no. 11/1991, as amended, on unfair competition.
Securities: Law 297/2004 about capital markets is a revision and consolidation of several basic acts governing investments, including of previous normative acts in the field. Other important legislation includes Law no. 126/2018, regarding financial instruments and Law no. 24/2017, on issuers of financial instruments and market operations.
The Financial Supervisory Authority (ASF) is Romania’s central financial authority, having broad regulatory and oversight powers and set up upon merger of the National Securities Commission (CNVM), the Insurance Supervisory Commission (CSA) and the Private Pension System Supervisory Commission (CSSPP).
The Romanian Ministry of Justice runs the National Trade Registry Office and its electronic database that allows the public to find legal and business-related information about Romanian-based companies. Investors may access the Bucharest Stock Exchange online.
5.9. Constitutional Law
Major and far-reaching amendments to the Constitution of 1991 were introduced, pursuant to a nation-wide referendum, by Law No. 429/2003 on the reform of the Constitution, which was published in Monitorul Oficial no. 758 of 29 October 2003.
At the time, this collection of amendments was meant to accommodate the EU directives and the related political reforms, as well as to set the stage for Romania’s accession to the EU. Inter alia, the Republic of Romania is characterized as: (i) a national, sovereign, independent, unitary and indivisible state; (ii) a democratic and social state, which warrants human dignity, citizens’ rights and freedoms, justice, and political pluralism; (iii) guarantees equality of its citizens irrespective of race, nationality, ethnic origin, language, religion, gender, political opinion, membership in political parties, estate or social origin.
Constitutional law is construed and applied in accordance with the United Nations Universal Declaration on Human Rights and with the international treaties or conventions ratified by or to which Romania is party. In case of conflict between the international and the domestic law, international law is paramount except when the Constitution or other internal laws contain provisions that are more favorable.
Romania is a semi-presidential republic, where the popularly elected president appoints the cabinet. In turn, the cabinet is responsible to the Parliament, which may force the cabinet to resign through a motion of no-confidence. Although the division of powers is the core concept of Romanian constitutional law, exceptionally, the president and the cabinet can also legislate in certain situations, if such power has been conferred to them by delegation from the Parliament. In addition, the president has a number of legislative powers (e.g., the formality of promulgation, the possibility to return a draft bill to the bi-cameral Parliament). The laws with the highest authority after the Constitution and its amendments are adopted by the Parliament.
After 1989, according to its new political regime, Romania adopted by referendum a new Constitution, its seventh, on 13 December 1991. The 1991 Constitution may be found in English on the Romanian Parliament's website. It can also be found in Central and East European Legal Materials, which is available in print (vol. 5) in most law school libraries' collections. The prior Romanian constitutions are from 1866,1923, 1938, 1948, 1952 and 1965.
5.9.1. Electoral Law
Romanian elections take place according to Law no. 208/2015 regarding the election of the Chamber of Deputies and of the Senate. The Permanent Electoral Authority is the institution with logistical and legislative attributions that oversees the election process.
In 2004 the elections for the Parliament members and for the country’s president were held simultaneously, but, in light of the constitutional amendment that extended the presidential term to five years (instead of four), parliamentary and presidential elections will be held separately in the future. In addition, local elections are held every four years in Romania, to elect the mayors of the cities and communes of the country.
Since 1989, political parties have become a major presence in Romanian elections and, since 2003, have been regulated by Law no. 14/2003.
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 V, which regulates obligations and various types of contracts.
5.11. Corporate (Company) Law
Based on the information provided by the World Bank, Romania ranks 91 out of 190 economies with respect to the ease of starting a business. It takes up to five days on average to set up a limited liability company and there are nominal administrative fees to be paid to obtain a business registration number.
Commercial entities may be created in one of the five forms provided by the Romanian law: (i) general partnerships, (ii) limited partnerships, (iii) joint-stock companies, (iv) partnerships limited by shares, and (v) limited-liability companies.
As opposed to the partners of general partnerships and the general partners of limited partnerships or of partnerships limited by shares, which are held jointly and severally liable for the obligations of the entity, the shareholders of joint-stock companies and of limited liability companies, as well as the limited partners of limited partnerships or of limited partnerships, are held liable within the limits of their financial or in-kind contribution to the formation of the entity.
- Law no.31/1990, as amended, concerning commercial companies
- Law no.15/1990, as amended, on State-owned enterprises reorganization into regii autonome (autonomous entities) and commercial companies
- Law no.26/1990, as amended, on the Trade Register
- Decree - Law no.122/1990, as amended, on the authorization and operation in Romania of the Representative Offices of foreign companies
- Government Emergency Ordinance no.30/1997, as amended, on the reorganization of regii autonome (autonomous entities)
For more information, you may refer to the National Trade Register Office.
5.12. Criminal Law
For historical research, remember that:
- During the so-called socialist era, the Romanian penal code had known major amendments too - Art. the 1948, 1968, the 1978 versions.
- For a description of the previous codes Art.: Kleckner, Simone-Marie Vrabiescu, The Penal Code of the Romanian Socialist Republic. South Hackensack, N.J.: F.B. Rothman, 1976.
- Romania's 1968 Criminal (Penal) Code (Rom. Codul Penal 1968) was substantially amended in successive rounds. Major changes were included in the 1989 version, which abolished the death penalty (Law no. 7 of 1989) and in the 2004 version decriminalized same-sex relationships.
The current Criminal is divided into two main parts, further structured as follows:
- Title I ”Criminal Law and Application Limitations”
- Title II ”The Criminal Offence ”
- Title III ”The Punishment”
- Title IV ”Safety Measures”
- Title V ”Minority”
- Title VI ”Criminal Liability of the Legal Entity”
- Title VII ”Causes for Criminal Liability Relief”
- Title VIII ”Causes for Relieving of or Modifying the criminal punishment”
- Title IX ”Causes for Relieving of Conviction Consequences ”
- Title X ”Meaning of Certain Terms or Expressions in Criminal Law”
- Title I “Criminal offenses against the individual”
- Title II “Criminal offenses against patrimony”
- Title III “Criminal offenses against authority and borders”
- Title IV “Criminal offenses against performance of justice”
- Title V “Corruption criminal offenses and criminal offenses perpetrated in office or in connection therewith”
- Title VI “Criminal offenses of forgery”
- Title VII “Criminal offenses against public safety”
- Title VIII “Criminal offenses impairing on social cohabitation”
- Title IX “Election criminal offenses”
- Title X “Criminal offenses against national security”
- Title XI ”Criminal offenses against the combat capacity of armed forces”
- Title XII “Criminal offenses of genocide, against mankind and war crimes”
- Title XIII “Final Provisions”
5.13. Employment & Labor Law
The Labor Code (Rom. Codul Muncii), approved through Law no. 53/2003, as amended, came into force on March 1, 2003. It reflects the European standards governing employment relationships and is the cornerstone of the employment framework in Romania. In addition, industry and company-level collective bargaining agreements and other more specific legislation governing distinct matters such as unions, business transfers and labor health and safety standards, may apply, superseding any terms of the individual employment agreements, to the extent that they are more favorable to the employee.
A new round of amendments entered into force in March 2011, the result of the Government’s attempt to bring more flexibility and competitiveness between employers and employees. Among others, changes as regards fixed-term contracts, work time, performance measurement, collective dismissals, a lower protection for union leaders and harsher sanctions for illegal work, have been introduced. Also, a new Social Dialogue Law, no. 62/2011, effective May 13, 2011, implemented further reforms, bringing together and revamping several older regulations regarding trade unions, employers’ organizations, the Economic and Social Council, as well as collective bargaining and labor conflicts, in line with the European provisions on the matter.
5.14. Environmental Law
The basic law on the protection of the environment is Government Emergency Ordinance no. 195/2005, successively amended to comply and keep pace with the EU standards. 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 current legal framework governing family law matters is comprised in the Civil Code - Book II “About Family”, which is divided into five titles: Title I “General provisions”; Title II “On Marriage”; Title III “Kinship”; Title IV “Parental authority”; Title V “Obligation of support”.
Romania has ratified the Council of Europe Convention on preventing and combating violence against women and domestic violence (open for signature starting 2011, in Istanbul) and enacted Law no. 217/2003 on prevention of domestic violence. The relevant public authority in charge of fighting against discrimination and domestic violence and is the National Agency for Equality between Women and Men.
Adoptions: Adoption is mainly regulated by Law. no. 273/2004 on the legal status of adoption, as well as by its implementing norms. The National Authority for Child’s Rights Protection and Adoption is the specialized government institution with oversight powers in his field. Romania has ratified the Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption, concluded in The Hague on May 29, 1993 and has acceded to the European Convention regarding the Adoption of Children, concluded in Strasbourg on April 24, 1967. For adoption procedures and requirements discussed and accompanied by English translations Internal and Intercountry Adoption Laws (Kluwer Law International, -2002).
5.16. Insurance Law
The Financial Supervisory Authority (ASF) is the administrative authority that has succeeded the former Insurance Supervisory Commission (CSA) and currently has regulatory, oversight and enforcement prerogatives in this field. Among the major pieces of general legislation in this area, we mention:
- Law no. 237/2015 regarding the authorization and supervision of insurance and reinsurance activity
- Law No. 132 / 2017 on the compulsory insurance against civil liability for damage to third parties caused by vehicle and tram accidents
- Government Emergency Ordinance no. 54/2016 on compulsory motor liability insurance for damage caused to third parties by motor vehicle accidents and trams
- Law No. 246/ 2015 on the insurers’ recovery and resolution
- Law no. 236/2018 regarding insurance distribution
- Law no.95/2006, as amended, on the health reform
5.17. Intellectual Property Law
- Law no. 8/1996 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. 186/2003, as republished, further overviews the encouragement of writing and literary activities and publishing. Oficiul Roman pentru Drepturi de Autor (the Romanian Copyright Office) is the specialized government body responsible for monitoring, observing and enforcing copyright legislation in Romania.
- Romania has adhered to: (i) the Bern Convention for Protection of Literary and Artistic Works of 1886, as revised, and to (ii) the Rome Convention for Protection of Performing Artists, Phonograms Producers and Radio Broadcasting Bodies of 1961. In addition, Romania has ratified the World Intellectual Property Organization Copyright Treaty, adopted in Geneva on December 20, 1996, as well as (ii) the 1925 Hague Agreement concerning International Registration of Industrial Designs, as supplemented.
Industrial Property Protection Trademarks
- Law no. 64/1991, as amended, on inventions and innovations, accompanied by its implementing regulations, governs the patent issuance process. Law no. 129/1992, as amended and republished, governs industrial drawings and models, while Law no. 84/1998 regulates the terms and conditions for obtaining legal protection for trademarks and geographical indications.
- Oficiul de Stat pentru Inventii si Marci (the State Office for Trademarks and Inventions) is the specialized government body receiving registration applications and issuing protection titles – patents for inventions and, respectively, registration certificates for industrial drawings and models, as well as for trademarks.
- Romania has adhered to the Convention on Grant of European Patents (EPC) adopted in Munich in 1973, as amended, as well as to both: (i) Strasbourg Agreement concerning the International Patent Classification of 1971, as amended, adopting the common classification for patents for inventions, inventors' certificates, utility models and utility certificates, and to (ii) the Locarno Agreement concerning the International Classification for Industrial Designs of 1968, as amended, adopting the single classification for industrial designs. Also, Romania is party to: (i) the TRIPS Agreement (“Trade-Related Aspects of Intellectual Property Rights”), (ii) the Hague Agreement Concerning International Registration of Industrial Designs signed in 1925, as revised and supplemented, (iii) the Washington Patent Cooperation Treaty signed in 1970, as amended,), and (iv) the Patent Law Treaty adopted at Geneva in 2000.
- With respect to trademarks, Romania has adhered to the Treaty regarding Trademarks, concluded in Geneva in 1994 and has ratified the 1891 Madrid Agreement concerning International Registration of Trademarks, as revised, and the Protocol regarding the International Registration of Marks, signed at Madrid on June 28, 1989. In addition, Romania has adhered to both: (i) the Nice Agreement concerning International Classification of Goods and Services for Purposes of Registration of Trademarks of 1957, as revised, as well as to (ii) the Vienna Agreement concerning International Classification of Figurative Elements of Trademarks, signed on 1973, as amended.
5.18. Private International Law - Conflict of Laws
In 1992, Romania enacted Law 105/1992 on conflicts of law (legea cu privire la reglementarea raporturilor de drept international privat), which, to date, is no longer applicable. In light of Romania’s EU membership, Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) and Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) govern conflicts of laws in cases where Romania is involved.
5.19. Real Property Law
The Romanian Civil Code (Book III “About Goods”: Title I “Assets and general provisions on real rights”; Title II “Private property”; Title III “Dismemberments of the Private Ownership Right”; Title IV “Trust”; Title V “Administration of the property of others”; Title VI “Public Property”; Title VII “The Land Book”; Title VIII “Possession”) and various other legislations ensure a complex domestic real estate legal regime.
Some of the key-laws are:
- Land Law no. 18/1991, as amended and republished
- Law 10/2001 regarding the legal status of the real estate abusively taken over by the State between March 6, 1945 and December 22, 1989, as amended and republished
- Cadastre and Real Estate Publicity Law No. 7/1996, as amended
The taxation system has dramatically changed in Romania since 1989. The current legal regime is governed by Law 227/2015 – the Fiscal Code, as amended and a complex system of implementing norms. Some tax legislation (including translations into English) is available on the website of the Ministry of Public Finance.
5.21. Tort Law
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.
A comprehensive legal framework governing consumer protection has been adopted in the last two decades, largely harmonized with the corresponding European standards. The main regulatory and enforcement agency with jurisdiction in such matters is the National Authority for Consumer Protection, active since 1992, which has offices throughout the country. See ANPC National Authority for Consumer Protection and Juanita Goicovici, The Legal Framework of the Consumer Associations in the Romanian Consumer Law, Transylvania Review of Administrative Sciences 26E/2009, pp. 62-69 (2009);
Several pieces of legislation have been passed aimed at strengthening consumer protection, such as Government Ordinance no. 99/2000 regarding the marketing of products and services, Government Ordinance no. 21/1992 on consumer protection, Law no. 148/2000 on advertising, Law no. 158/2008 on misleading and comparative advertising, Law no. 363/2007 on the fight against unfair commercial practices of traders in their relationship with consumers and the harmonization of regulations with European consumer protection legislation. Also, under the aegis of the National Audiovisual Council, a plethora of regulations governing the advertising of consumer goods on Romanian television and radio stations have been adopted.
5.22. Trusts and Estates Law
The legal framework is set out by the Civil Code (Book IV “On Inheritance and Liberalities”: Title I “General Provisions on Inheritance”; Title II “Legal Succession”; Title III “Liberalities”; Title IV “Transmission and Division of Inheritance”).
6. Romania and the EU
On January 1st, 2007, Romania became a member of the European Union, and was subject to EU law. A concise overview of the Romania’s accession to the EU and its legal implications is available on the site of Romania’s Permanent Representation to the European Union and of the European Commission’s Representative Office in Romania.