Romania

Romania - Monitoring report

Date of the monitoring visit: from 24 to 26 May 2010
Report adopted on: 3 March 2011

This report follows a monitoring visit on the situation of local and regional democracy in Romania, which had already been the subject of a recommendation in 1995 and two information reports in 2002 and 2003, respectively. The report notes that, during the last decade, Romania initiated many legislative reforms which were carried out in accordance with the principles and the spirit of the European Charter of Local Self-Government.

 

The Recommendation calls on the Romanian authorities to continue to put into practice all the principles of the Charter, including further improvement of the mechanisms for consultation with local communities to achieve full compliance with Article 4 (6) of the Charter; to provide local communities with financial resources commensurate with their skills, as outlined in Article 9 (2) of the Charter; and to grant a special status to the capital city of Bucharest, in accordance with the Congress Recommendation 219 (2007). The Congress also calls on local authorities to continue their efforts to implement the measures aimed at integrating national minorities into local communities by ensuring their full participation in local politics. It should be noted that the delegation has not met representatives of the Roma minority and the issue is not addressed in this report. 

 

Finally, it is recommended that the Romanian authorities continue regional development reforms in accordance with the principles set out in the Reference Framework for Regional Democracy and consider lifting the reservation to article 7 (2) of the Charter, which no longer seems to be necessary. The Romanian authorities are also encouraged to sign and ratify the Additional Protocol to the European Charter of Local Self-Government on the right to participate in local affairs.

legend
Article ratified Ratified with reservation Non ratified
Compliance Partial compliance Non compliance To be determined
Unfold all
Fold all
Article 2
Constitutional and legal foundation for local self government - Article ratified

The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.


In Romania, the principle of local self-government is recognised in the Constitution (Articles 120 and 121) and other legal instruments.

 

The general legal framework of local self-government consists of a set of legislative acts that have undergone significant development, especially during the last decade.

 

The law on local public administration passed in 1991, which was considerably improved by another law on the subject passed in 2001, was revised in 2006 to reflect real progress in local self-government. The concept of local self-government contained in Article 3 (1) and (2) of the Charter was adopted in the general revision of this law on 16 March 2008. It is to be found for example in Article 3(1), (2) and (3) of Law no. 215/2001 as well as in Law no. 67/2004 on local elections and Law no. 393/2004 on the conditions of office of local elected representatives. Article 4(1) of Law 215/2001 also states that local self-government only relates to administrative and financial matters and is exercised on the basis of, and within the limits imposed by, the law.

Article 3.1
Concept of local self government - Article ratified

Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.


Consult reply indicated at article 2

Article 3.2
Concept of local self government - Article ratified

This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.


Consult reply indicated at article 2

Article 4.1
Scope of local self government - Article ratified

The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.


The basic powers and responsibilities referred to in Article 4(1) of the Charter are provided for by Article 36 of Law no. 215/2001 in the case of the local councils and Article 91 in the case of the county councils.

Article 4.2
Scope of local self government - Article ratified

Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.


Article 4(2) of the Charter has been adopted in Article 5(2) of Law no. 215/2001.

Article 4.3
Scope of local self government - Article ratified

Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.


For Article 4(3) of the Charter, it is necessary to point out that the local council possesses local self-government powers by virtue of the principle of subsidiarity, provided for by section 3(a) of the framework Law on decentralisation (Law no. 195/2006). The local council can freely decide on what task to carry out to meet the needs of the local community.

Article 4.4
Scope of local self government - Non ratified

Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.


As stated above, Romania has made an interpretative declaration concerning Articles 4(4) and (5) of the Charter.

Article 4.5
Scope of local self government - Non ratified

Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.

 


As stated above, Romania has made an interpretative declaration concerning Articles 4(4) and (5) of the Charter.

Article 4.6
Scope of local self government - Article ratified

Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.

 


Article 4(6) of the Charter is reflected in Article 8 (1) of Law no. 215/2001 and in Government Decision no. 521/2005 on the procedure for consulting the associations of local authorities on the drafting of legislative instruments. Furthermore, the delegation welcomes the fact that Government Decision no. 521/2005 expressly refers to the Charter and to Article 4 (6) in its preamble.

 

Article 5
Protection of local authority boundaries - Article ratified

Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.

 


The protection of local authority boundaries is guaranteed in Romanian law by Article 22 of Law no. 215/2001.

Article 6.1
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management.


In accordance with the framework regulation on the organisation and operation of the local councils, published in Monitorul Oficial no. 90 of 2 February 2002, local councils can adopt their own regulations on their organisation and operation adapted to their specific needs. These internal regulations must be approved by two-thirds of the elected councillors.

 

Law no. 215/2001 provides that one of the first tasks of the local council and the county council is to approve the council’s charter and the regulations for the organisation and operation of the council, the town hall and other local public institutions. The activities and internal rules for the organisation and operation of the each community are thus governed by (local or county) council decisions.

Article 6.2
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.


Staff are governed by Law no. 188/1999 on the civil service conditions of service (the local authorities also employ contract staff) and by various ministerial orders relating to pay. Staff salaries, which are paid from public funds, are now governed by Framework Law no. 330/2009, while the number of staff that may be employed by the central and local public authorities is laid down by Government Emergency Order no. 63/2010.

Article 7.1
Conditions under which responsibilities at local level are exercised - Article ratified

The conditions of office of local elected representatives shall provide for free exercise of their functions.


The conditions of office of local elected representatives are guaranteed by Law no. 393/2004 on the conditions of office of local elected representatives. The free exercise of their functions is provided for by Articles 4 and 20 of that law.

Article 7.2
Conditions under which responsibilities at local level are exercised - Non ratified

They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection.


As far as Article 7(2) is concerned, our delegation reiterates that Romania made a reservation concerning this paragraph when it signed the Charter. Nonetheless, it is interesting to note that Law no. 393/2004 provides for several arrangements for paying elected representatives bonuses and financial compensation in the exercise of their functions, and even afterwards in the case of former elected representatives who reach retirement age.

 

During the visit, the associations stated that in some cases local administrative officials received a salary higher than that of the mayor. However, the Ministry of the Administration and the Interior informed us about a draft legal instrument aimed at reassessing the mayor’s salary in the light of the pay of local officials.

Article 7.3
Conditions under which responsibilities at local level are exercised - Article ratified

Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.


Any functions and activities that are deemed incompatible with the holding of local elective office are set out in Part IV of Law no. 161/2003 on certain measures for guaranteeing transparency in the exercise of public activities and missions and in the business sphere, as well as guaranteeing the prevention and punishment of corruption. They are also set out in Law no. 176/2010 on integrity in the exercise of public offices and functions, which amends and complements Law no. 144/2007 on the creation, organisation and operation of the National Integrity Agency and amends and complements other legislative instruments.

Article 8.1
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute.


Although Article 123(4) of the Romanian Constitution does not expressly say so, a combined reading of the provisions of the law on local public administration and the law on the prefect and the institution of the prefect indicates that administrative supervision of the local authorities is carried out by the prefect.

 

In the exercise of the task for which he or she has been elected, the mayor issues legislative or individual provisions and takes unilateral administrative decisions. The secretary of the administrative-territorial unit communicates the provisions to the prefect within five days of their being signed. The prefect thus reviews the legality of acts and decisions (i.e., is responsible for administrative supervision). If necessary, he or she can call for the revision or revocation of the administrative act or measure considered partly or entirely illegal. If this is refused, the prefect can bring the matter before the administrative tribunals to call for the decision to be set aside.

 

In the exercise of their functions, the local council and the county council issue orders that are submitted to the prefect for a review of their legality. In the event of the council refusing to set aside decisions considered illegal by the prefect, the latter can bring the matter before the administrative tribunals. The regulation of the supervision by the prefect of administrative acts and decisions seems appropriate and proportionate, although some abuses can be reported as far as past practice is concerned.

 

Article 8.2
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.


Consult reply indicated at article 8.1

Article 8.3
Administrative supervision of local authorities' activities - Article ratified

Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.


Consult reply indicated at article 8.1

Article 9.1
Financial resources of local authorities - Article ratified

Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.


Article 9(1) and (2) of the Charter was adopted when Law no. 215/2001 was last revised.

Article 9.2
Financial resources of local authorities - Article ratified

Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.


Consult reply indicated at article 9.1

Article 9.3
Financial resources of local authorities - Article ratified

Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.


The same principles have recently been guaranteed by Article 3 of Law no. 195/2006 and sections 16(1) and 17 of Law no. 273/2006.

 

The local authorities’ financial resources, as provided for by Article 9(3) and (4) of the Charter, are guaranteed in Romanian law by section 27 of Law no. 215/2001, section 5 of Law no. 273/2006, which provides for the establishment of the income and expenditure of the local budget, and in section 16 (2) of that law. The latter states that “the local administrative authorities have the power to determine the rate of taxes and local charges in the conditions foreseen by the law”. These principles have been recently supplemented by section 27 of the same law, which refers to “powers and responsibilities with regard to the determination of taxes and tax rates”.

Article 9.4
Financial resources of local authorities - Article ratified

The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.


Consult reply indicated at article 9.3

Article 9.5
Financial resources of local authorities - Article ratified

The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility.


Article 9(5)-(8) of the Charter is also adopted in Law no. 273/2006, namely in section 15, entitled “The principle of solidarity, section 6(3) and various other sections of that law, which has since its last revision in particular permitted financial equalisation at the central level (between counties) and the local level (between the rural localities of the same county) as well as the sharing of resources between the central and local levels. It also authorises the local authorities to issue capital on the European and international capital markets and to take out loans.

 

Under Government Emergency Order no. 51/2010, local councils can, in order to pay their debts to economic operators, request loans from the state at an annual interest rate of 6.25% for a period of five years with interest payments not beginning until the second year. In order to benefit from these loans, local authorities must be given permission by the Public Finance Ministry’s Commission for the Authorisation of Local Authority Loans. According to the new provisions of Law no. 273/2006 on local public finances, failure to comply with the obligation to request the Public Finance Ministry’s consent makes the local authority representatives criminally liable and is punishable by three to ten years’ imprisonment or, in the case of serious consequences, from five to fifteen years’ imprisonment plus a ban on exercising certain rights. Moreover, if the representatives of the local public authorities do not comply with the obligation to send the Public Finance Ministry the required information on the loans raised and the local public debt, they will incur a penalty in the form of a fine of 10,000 to 30,000 lei (€2392.80 to €7178.40).

 

Chapter V of Law no. 215/2001, entitled “The financing of local administrative authorities", is equally important. It provides that the administrative-territorial units shall receive amounts for specific purposes deducted from certain state income, in order to guarantee the vertical and horizontal balance of local budgets. The arrangements and criteria for the allocation of the shares and amounts to balance the local budgets are determined by the law on local public finances. The size of the amounts for balancing the local budgets is determined by the law on finances.

 

The co-rapporteurs were also informed that in practice the county council remains strongly politicised, especially as far as the budget is concerned, and that the distribution of resources is affected by problems of political cronyism, which extend to all government parties. The process whereby budgets are prepared at local level seems to be the object of political negotiation, at the expense of the real needs of the local communities.

 

Article 9(6) of the Charter is incorporated into section 18 of Law no. 273/2006.

 

Article 9.6
Financial resources of local authorities - Article ratified

Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.


Consult reply indicated at article 9.5

Article 9.7
Financial resources of local authorities - Article ratified

As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.


Consult reply indicated at article 9.5

Article 9.8
Financial resources of local authorities - Article ratified

For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.


Consult reply indicated at article 9.5

Article 10.1
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.


The local authorities’ right to associate and the conditions applicable to their associations are laid down in Law no. 215/2001 (sections 11 to 16). On 16 July 2003, Romania also ratified, with two reservations, the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (CETS 106), adopted in Madrid on 21 May 1980.

 

By section 12(2) of Law no. 215/2001, the government permits associations of administrative-territorial units in the context of national development programmes. These programmes are financed on an annual basis from the state budget by means of a separate allocation from the budget of the Ministry of the Administration and the Interior in accordance with the law on local public finances.

Article 10.2
Local authorities' right to associate - Article ratified

The entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities shall be recognised in each State.


Consult reply indicated at article 10.1

Article 10.3
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States.


Consult reply indicated at article 10.1

Article 11
Legal protection of local selfgovernment - Article ratified

Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.


Romanian legislation does not grant the local authorities a right to lodge a legal remedy in order to secure the free exercise of the right to local self-government. Nonetheless, the local authorities can take legal action, before the ordinary courts, to demand compliance with the provisions of the Constitution and/or domestic legislation that affect them directly.

 

The local communities, the administrative-territorial units and the local or county authorities do not have their own right to apply to the Constitutional Court, but administrative-territorial units can appeal to the Constitutional Court by filing a plea of unconstitutionality. There are a number of examples of decisions in which the Constitutional Court has ruled in the local authorities’ favour.

 

Similarly, the local communities, the administrative-territorial units and the local public authorities defend their right to self-government, which is understood to be an individual right, before a court (administrative tribunal or court of law). The only remedies available to certain local public authorities concern their composition and their internal organisation. These local public authorities can be considered an aspect of administrative self-government, in the sense given by the institutional law to this concept. However, these remedies do not constitute effective legal protection for self-government within the meaning of the Charter.

ACCESSION

to the Council of Europe

RATIFICATION

of the European Charter of Local Self-Government

CONSTITUTION | NATIONAL LEGISLATION

In Romania, the principle of local self-government is recognised in the Constitution (Articles 120 and 121) and other legal instruments.



27Ratified provision(s)
0Provision(s) with reservation(s)
3 Non ratified articles
26Compliant Provision(s)
0Partially Compliant Provision(s)
1Non-compliant Article