2010 Lesij Xvii 2

Jos Luis de la Cuesta, Isidoro Blanco Cordero 1
LESIJ NR. XVII, VOL. 1/2010

LEX ET SCIENTIA
International Journal

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Lex ET Scientia International Journal.
Juridical Series (LESIJ.JS)

Editor
Mircea Damaschin, Nicolae Titulescu University,
Bucharest, Romania

Associate Editors
Lorena Bachmayer Winter, Complutense
University, Madrid, Spain, Stanciu Carpenaru,
Nicolae Titulescu University, Bucharest, Jos
Louis de la Cuesta, Del Pais Vasco University, San
Sebastian, Spain, Vasile Dobrinoiu, Nicolae
Titulescu University, Bucharest, Maria Cristina
Giannini, University of Teramo, Italy, Zlata
Durdevic, University of Zagreb, Croatia, Mihai
Hotca, Nicolae Titulescu University, Bucharest,
Mateut Gheorghita, Babes-Bolyai University,
Cluj-Napoca, Raluca Miga-Besteliu, Nicolae
Titulescu University, Bucharest, Norel Neagu,
Police Academy, Bucharest, Beatrice Onica-Jarka,
Nicolae Titulescu University, Bucharest, Nicolae
Popa, Nicolae Titulescu University, Bucharest,
Fbio Ramazzini Bechara, Damsio de Jesus
University, So Paulo, Brasil, Viorel Ros, Nicolae
Titulescu University, Bucharest

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Economics Series (LESIJ.ES)

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ISSN: 1583-039X
4 Lex ET Scientia

Contents 5
LESIJ NO. XVII, VOL. 2/2010
CONTENTS

Lex ET Scientia. Juridical Series
THE IMPLEMENTATION OF THE ECTHRS CASE-LAW AND

THE EXECUTION PROCEDURE AFTER PROTOCOL NO. 14
Lorena Bachmaier Winter ................................................................................................................ 9

FORENSIC ISSUES IN FAMILY ABANDON OFFENCE INVESTIGATION
Carmina Aleca, Daniela Iancu ........................................................................................................ 22

ABOUT SOME NEW MODALITIES OF INDIVIDUALIZATION
OF THE PUNISHMENTS ACCORDING WITH THE NEW PENAL CODE
(LAW NO. 286/2009)
Versavia Brutaru ............................................................................................................................. 32

LEGAL NATURE OF THE INDIVIDUAL EMPLOYMENT CONTRACT
Ada Hurbean ................................................................................................................................... 41

SEVERAL REFLECTIONS ON THE SIGNIFICANCE OF THE ICJ
ADVISORY OPINION ON ACCORDANCE WITH INTERNATIONAL
LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE
IN RESPECT OF KOSOVO
Beatrice Onica Jarka ....................................................................................................................... 49

GENERAL ASPECTS OF THE INFRINGEMENT PROCEDURE
Roxana-Mariana Popescu ............................................................................................................... 59

SHORT CONSIDERATIONS ON THE TACIT APPROVAL PROCEDURE
Elena Emilia tefan......................................................................................................................... 68

DOCUMENTS PRECEDING THE ADOPTION OF DIRECTIVE 2004/35/EC
TRANSPOSED IN THE ROMANIAN LAW BY GOVERNMENT
EMERGENCY ORDINANCE NO. 68/2007 ON ENVIRONMENTAL LIABILITY
Andrada Truc ............................................................................................................................... 79

DISCUSSIONS REGARDING THE CONDITIONS OF THE CRIMINAL
RESPONSIBILITY OF THE LEGAL PERSON IN THE REGULATION
OF THE NEW CRIMINAL CODEMIHAI
Mihai Adrian Hotca
Radu Slvoiu ................................................................................................................................... 91

HISTORY OF THE EUROPEAN UNION
Dan Vtman ................................................................................................................................ 107
6 Lex ET Scientia
Lex ET Scientia. Economics Series

THE MONETARY NEUTRALITY AND ITS IMPLICATIONS UPON
THE REAL ECONOMY
Alexandra Adam, Ioana Moldovan, Simona Hudea ..................................................................... 138

ENTREPRENEURIAL CONSULTING AND DEVELOPMENT FOR YOUTH
WITHIN RURAL AREAS - A CASE STUDY FOR DEVELOPING NORTH EAST,
CENTRAL AND SOUTH EAST REGIONS
Marin Burcea, Doru Curteanu, Razvan Mihail Papuc................................................................... 149

FISCAL MANAGEMENT OF ROMANIAN COMPANIES
Maria Zenovia Grigore, Mariana Gurau ....................................................................................... 163

DIRECTIONS FOR IMPROVEMENT OF THE MANAGERIAL ACCOUNTING
Oprea Clin ................................................................................................................................... 175

CHALLENGES OF INCREASING THE ECONOMIC AND SOCIAL RELEVANCE
OF ROMANIAN R&D AND INNOVATION
Steliana Sandu, Irina Anghel ........................................................................................................ 186

MODERNIZATION OF FINANCIAL RELATIONS BETWEEN PUBLIC C
ENTRAL AND LOCAL AUTHORITIES
Emilia Cornelia Stoica, Andrei Cristian Stoica ............................................................................. 201

POSITIVE AND NEGATIVE EFFECTS OF GLOBALIZATION
Alexandru Olteanu, Mdlina Antoaneta Rdoi .......................................................................... 208

BANKS AND FINANCIAL INTERMEDIATIONS GLOBAL ROLE
OF IN MARKETS GENERAL EQUILIBRIUM
Mdlina Antoaneta Rdoi............................................................................................................ 212

Lex ET Scientia. Administratives Series
PRINCIPLES OF A NEW MODEL FOR EDUCATION IN THE KNOWLEDGE SOCIETY

Emilian Dobrescu, Edith-Mihaela Sima ....................................................................................... 217

THE POLITICS OF CARE IN A STATE OF CRISIS: THE ROMANIAN CASE
Alice Iancu .................................................................................................................................... 224

THE DINAMICS ON CITIZENSHIP A THEORETICAL APPROACH
Diana Elena Neaga ........................................................................................................................ 242

COMPREHENSIVE COMMUNICATION AND THE QUALITY
OF INTERPERSONAL RELATION BUCHAREST STUDENTS
BEHAVIOURAL PATTERNS IN INTERPERSONAL COMMUNICATION
Elena Nedelcu ............................................................................................................................... 256
Contents 7
Lex ET Scientia. IT Series
CONSIDERATIONS REGARDING THE PROTECTION

OF CLASSIFIED INFORMATION IN ELECTRONIC FORMAT
Teodor tefnescu ......................................................................................................................... 270

NEW TRENDS IN IT&C SECURITY EVALUATION .............................................................. 272
Cristian Teodor Pun, Emil Simion

8 Lex ET Scientia

Contents 9

THE IMPLEMENTATION OF THE ECTHRS CASE-LAW AND THE
EXECUTION PROCEDURE AFTER PROTOCOL NO. 14

Lorena BACHMAIER WINTER

Keywords: case-law, European Court of Human Rights, human rights

I. Introduction
One of the goals of the Council of Europe, as stated in the Preamble of its Statute of London
(5.5.1949) is to advance towards the idea of a democratic Europe, based on the principles of
individual freedom, political freedom and the rule of law. Democracy and the commitment to
respect the human rights, placing the importance of man before the importance of the State, is a
condition to be accomplished by the states that should like to be members or are already members
to the Council of Europe. In 1950 the European Convention of Human Rights (ECHR) is approved
as an initial list of minimum essential fundamental rights, list that has been enhanced and
completed later by different protocols. The body established to control the respect of the human
rights and thus the compliance with the Convention is the European Court of Human Rights
(ECtHR), which acquires exclusive jurisdiction to decide on the violations of the Covention since
Protocol No. 11 was signed in 1998. Through its case-law the ECtHR not only grants protection
against violations of the rights recognized in the Convention, but has contributed to expand the
understanding of human rights and has promoted a legal harmonization within Europe by defining
a common standard of human rights. In that sense, the ECtHR plays the role of a quasi-
constitutional court for the protection of human rights
1
. But, once the decision is rendered, there is
not a European enforcement procedure.
When analyzing the impact of the European Court of Human Rights (ECtHR) upon the
decisions and practice of domestic courts and institutions, a core issue is undoubtedly the
implementation of the standards set out by the ECtHR and the execution of the Courts decisions
in the Member States. The implementation of the case law of the ECtHR by the domestic courts,
state institutions and in general the understanding of the Human Rights, requires that the Courts
This paper is based on the presentation made in the Conference CKS that took place in Bucharest in April
2010.
Complutense University of Madrid, J.D.; Complutense University, M.A. in Political Science; Complutense
University, J.S.D. Professor Bachmaier Winter has been a Professor at the Faculty of Law at Complutense
University since 1996, where she has taught criminal procedure and civil procedure. She has written extensively on
the subject of procedure. She has lectured in universities and governmental agencies in Europe and Latin America.
She is a member of the Spanish Royal Academy of Jurisprudence and Legislation and of the Ibero-American
Association of Procedural Law. She has been a fellow of the Alexander von Humboldt Foundation, and a visiting
scholar in the Max-Planck-Institut for Criminal Law and Procedure (Freiburg i. Br., Germany) and at the University
of California Berkeley and Harvard University. Her comparative legal studies are focused on human rights and
procedure, international judicial cooperation, comparative law and the EU process of legal harmonization. She has
consulted for the Ministry of Justice of Spain. E-mail: [email protected].
1
E. GARCA DE ENTERRA, Valeur de la jurisprudence de la Cour europenne des droits de lhomme en
droit espagnol, in Mlanges en lhonneur de Grard J. Wiarda, Kln 1988, p. 221.
10 Lex ET Scientia. Juridical Series
decisions are enforced
2
. The ideal situation would be that immediately after the judgment has been
rendered, the relevant state takes all the necessary individual or general measures in order to
comply with the ECtHRs judgment. Unfortunately, this is not always the case. Although
spontaneous execution of the judgments should be the rule, as the contracting states have assumed
the obligation to abide by the Courts judgments and this explains also why the Convention did
not foresee any enforcement procedure or measures against the infringement of the Courts
judgments , experience has shown that a stronger supervising of the execution is needed. An
overall assessment of the situation shows the excessive length of time taken to implement the
Courts decisions. According to the working paper prepared by the Secretary in 2005, reflecting
the situation of enforcements since 2000 when the Committee of Ministers (CM) commenced the
procedure of supervising more intensely the execution of the Courts decisions, there were 2.597
decisions not executed, most of them stemming out of the systemic problems of the Italian judicial
system.
The refusal and delays in the execution of the Courts judgments do not only constitute a
violation of the rights of the individual in whose favour the judgment has been delivered, but the
lack of execution of the Courts judgments undoubtedly does also have a very negative supra-
individual impact as it affects the efficacy and credibility of the whole Convention system of
protection of human rights
3
. The strengthening of the measures to achieve a more efficient
execution procedure is essential to the functioning of the system, and if they are not implemented,
the efficacy of whole system is endangered.
The aim of this paper is to give an overview on the execution of the Courts judgments and
the supervising procedures adopted by the Committee of Ministers and the Court itself to
overcome the present shortcomings of the European system of protection of human rights. We will
also mention the provisions of Protocol 14 which entered into force fully only a few months ago
specifically aimed to improve the execution of the Courts judgments and try to analyze the
scope of these modifications which, even if they represent an improvement of the execution
procedure, they might not be sufficient to face the unwillingness of certain states to abide by
certain decisions of the Court.

II. The enforcement of ECtHRs judgments
1. The need to strengthen the execution procedure
Every legal system needs a reliable, independent and impartial judiciary to grant the rule of
law. Moreover, for the system to work, the decisions of the courts have to be respected, and if the
parties do not follow them willingly, an enforcement mechanism has to be in place. The right to
access to court and the right to a fair trial, recognized in art. 6 ECHR encompasses the right to the
execution of judgments. As the Court has held: the rights of art. 6 ECHR would be illusory if a
Contracting States domestic legal system allowed a final, binding judicial decision to remain
inoperative to the detriment of one party; and it would be inconceivable that Article 6 para. 1
2
On the enforcement of the Courts decisions in Spain see C. RUIZ MIGUEL, La ejecucin de las
sentencias del Tribunal Europeo de Derechos Humanos, Madrid 1997; C. ESCOBAR HERNNDEZ, Ejecucin
en Espaa de las sentencias del TEDH, REDI, vol. XLII, 1990-2, pp. 547 et seq.; J.A. MORENILLA,
RODRGUEZ, La ejecucin de las sentencias del TEDH, Rev. Poder Judicial, 15 (1990), pp. 79-102; J. BONET
PREZ, El problema de la efectividad interna de las sentencias del Tribunal Europeo de Derechos Humanos, in
Rev. Jca. Cat. vol.92 (1993), pp. 58-59; D.J. LIN NOGUERAS, Efectos de las sentencias del TEDH y Derecho
espaol, REDI vol. XXXVII, 1985-2, pp. 355-376.
3
Expressed in the report of the Group of Wise Persons, CM (2006) 203, of 15.11.2005, parag. 25.
Lorena Bachmaier Winter 11
(art. 6-1) should describe in detail procedural guarantees afforded to litigants -proceedings that are
fair, public and expeditious - without protecting the implementation of judicial decisions
4
. The
same can be applied, saving the differences, to the ECtHR: if the judgments of the Court are not
enforced by the States, the role of the sentences of the ECtHR would amount to recommendations.
To the end, the whole European system of protection of human rights also relies on the
enforcement of its decisions and the degree to which those decisions are integrated in the domestic
legal order. The Committee of Ministers has also stated that respecting the judgments of the Court
is one of the conditions of membership of the Council of Europe.
After a judgment condemning the respondent State has been rendered, the enforcement
relies on the domestic rules. In other words, the efficacy of the decisions depends on the
mechanisms provided in the domestic law and the intervention of the national authorities is needed
to execute the decisions.
Aware of the shortcomings of the execution procedure, the Council of Europe back in the
90s started analyzing the situation and making a follow-up of the enforcement of the ECtHRs
judgments by the States. The Parliamentary Assembly started paying growing attention to the
execution of judgements and began putting strong pressure in some cases of non-execution. In
September 2000, the Assembly adopted the Resolution 1226 (2000)
5
: it decided to keep an updated
record of the execution of judgments, to hold regular debates on the issue and to adopt
recommendations to the Committee of Ministers concerning the problems detected upon the record
on the execution of certain judgments. In the same session, the Parliamentary Assembly also
adopted the Recommendation 1477 (2000) to the Committee of Ministers on the execution of
judgments of the Court
6
. Among other recommendations, the Assembly urged the Committee to
strengthen de supervision procedure of the execution of judgments in order to ensure that effective
measures were taken by the member States.
The same year 2000 the Committee of Ministers issued a recommendation to the member
States with regard to the execution of judgments and precisely on the re-examination of cases and
the setting aside of national judgments in order to comply with the Courts decisions. Since 2000
several recommendations and resolutions have been approved aimed on the effective
implementation of the standards set out in the Convention, stating the obligation of the states to
follow the decisions of the Court, and promoting the efficient execution of its judgements
7
.
4
Hornsby v. Greece, 19.3.1997, para. 40. In the instant case, Mr. and Mrs. Hornsby, two English citizens
resident en Rhodes, tried to open a private school there to teach English. The permit was denied by the administrative
authorities. The case went up to the Supreme Administrative Court, which held that the permission had been unduly
denied. However this judgment of the Supreme Administrative Court was not executed. They lodge complaint with the
ECHR alleging a violation of art.6 ECHR. The respondent State, however affirmed that art. 6 ECHR did not grant the
right to get a judicial decision enforced. This interpretation was completely rejected by the Court, stating that: to
construe Article 6 (art. 6) as being concerned exclusively with access to a court and the conduct of proceedings would
be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook
to respect when they ratified the Convention (see, mutatis mutandis, the Golder v. the United Kingdom judgment of 21
February 1975, Series A no. 18, pp. 16-18, paras. 34-36). Execution of a judgment given by any court must therefore
be regarded as an integral part of the "trial" for the purposes of Article 6 (art. 6).
5
Resolution 1226 (2000), Execution of judgments of the European Court of Human Rights, of 28 September 2000.
6
Recommendation 1477 (2000) Execution of judgments of the European Court of Human Rights, of 28
September 2000. See also Recommendation 1546 (2002) of 22 January 2002, Implementation of decisions of the
European Court of Human Rights. See also, Resolution 1268 (2002) on Implementation of decisions of the
European Court of Human Rights of 22 January 2002; and Resolution of the Parliamentary Assembly 1411 (2004)
of 23 November 2004, on the implementation of decisions of the ECtHR.
7
The most relevant are:
Recommendation(2000)2 / 19 January 2000 on the re-examination or reopening of certain cases at
domestic level following judgments of the European Court of Human Rights.
2. The content of the obligation to execute judgments of the ECtHR
Although art. 46 states that the Courts decisions have a binding effect
8
and art. 41
9
mentions
specifically the right to just satisfaction when a violation of the Convention has been established, the
system of the Convention does not provide for an enforcement procedure. The enforcement of the
judgments relies on the domestic proceedings, and neither the Convention nor the Court does impose
a specific ruling on the execution procedure and it is within the discretion of the states to choose the
appropriate means of redress
10
. However, over the time the Court has slowly introduced more direct
orders as to the measures to be taken to stop a violation or grant adequate redress. In fact, the Courts
case law has evolved from ordering in a broad sense to grant restitution or just satisfaction to identify
precise measures to be taken by the respondent state
11
.
In the case of Papamichalopoulos v. Greece
12
, of 31.10.1995, the Court clearly stated the
obligation of the States to undertake individual measures for reparation:
Recommendation (2002)13 of 18 December 2002 on the publication and dissemination in the member
states of the text of the European Convention on Human Rights and of the case-law of the European Court of
Human Rights.
Recommendation (2004)5 of 12 May 2004 of the Committee of Ministers to member states on the verification
of the compatibility of draft laws, existing laws and administrative practice with the standards laid down in the
European Convention on Human Rights (adopted by the Committee of Ministers on 12 May 2004 at its 114th Session).
Recommendation (2004)6 of 12 May 2004 of the Committee of Ministers to member states on the
improvement of domestic remedies (adopted by the Committee of Ministers on 12 May 2004, at its 114th Session).
Recommendation (2004)4 of 12 May 2004 of the Committee of Ministers to member states on the
European Convention on Human Rights in university education and professional training (adopted by the
Committee of Ministers on 12 May 2004, at its 114th Session).
Recommendation (2008)2 of 6 February 2008, of the Committee of Ministers to member states on
efficient domestic capacity for rapid execution of judgments of the European Court of Human Rights (adopted by
the Committee of Ministers on 6 February 2008 at the 1017th meeting of the Ministers' Deputies).
Recommendation (2010)3 of 24 February 2010 of the Committee of Ministers to member states on
effective remedies for excessive length proceedings.
Additionally see the Resolutions: Res (2002) 58 of 18 December 2002 on the publication and dissemination
of the case-law of the ECtHR; Res (2002) 59, of 18 December 2002 concerning the practice in respect of friendly
settlements; Res (2004) 3 of 12 May 2004, on judgments revealing an underlying systemic problem.
8
Art. 46 of the Convention: The High Contracting Parties undertake to abide by the decision of the Court in
any case to which they are parties. The final judgment of the Court shall be transmitted to the Committee of
Ministers, which shall supervise its execution.
9
Art. 41 of the Convention: If the Court finds there has been a violation of the Convention or the protocols
thereto, and if the internal law of the High Contracting party concerned allows only partial reparation to be made,
the Court shall, if necessary, afford just satisfaction to the injured party.
10
On the authority of the Courts decisions and the discussion of their binding effect has been discussed and written
widely, see, among others, A. Z. DRZEMCZEWSKI, European Human Rights Convention in Domestic Law. A
comparative Study, Oxford, 1983, pp. 260 et seq., although reflecting the situation until the 80s, where the Court did not
order specific measures to be taken to grant just satisfaction; D. KILLIAN, Die Bindungswirkung der Entscheidungen des
Europischen Gerichtshofs fr Menschenrechte, Frankfurt a.M., 1994; L.M. BUJOSA VADELL, Las sentencias del
Tribunal Europeo de Derechos Humanos y el ordenamiento espaol, Madrid, 1997, pp.92-108; S. Ha, Die Urteile des
Europischen Gerichtshofs fr Menschenrechte, Frankfurt am Main, 2006, pp. 60 et seq.
11
On the evoultion of the ECtHR case-law with regard to art. 41 of the Convention, see J.T. OSKIERSKI,
Schadenersatz im europischen Recht. Eine vergleichende Untersuchung des Acquis Communautaire und der
EMRK, Baden-Baden 2010, pp. 145-153
12
Papamichalopoulos v. Greece of 31.10.1995. The case deals with a property expropriation. The
applicants, Greek nationals, were deprived of the use of their land by virtue of a Greek law passed after the
dictatorship was established in 1967 which transferred the land to the Navy Fund. After democracy had been
restored the authorities recognized the applicants as having title and ordered exchange of the land for other land of
equal value. None of the land chosen by the authorities was able to be used for the proposed exchange and by the
date of the Court's judgment no compensation had been awarded to the applicants. The applicants complained of a
violation of Article 1 of Protocol No 1 to the Convention.
By Article 53 (currently 46.1) of the Convention the High Contracting Parties
undertook to abide by the decision of the Court in any case to which they were parties;
furthermore, Article 54 (currently 46.2) provides that the judgment of the Court shall be
transmitted to the Committee of Ministers which shall supervise its execution. It follows
that a judgment in which the Court finds a breach imposes on the respondent State a
legal obligation to put an end to the breach and make reparation for its consequences in
such a way as to restore as far as possible the situation existing before the breach.

The Court concludes that taken together arts. 41 and 46 of the Convention, the just
satisfaction cannot be solely the remedy for certain violations. After the Court has found a breach
of the Convention it does not suffice that the State pays the sums awarded to the applicant party,
but such a judgment imposes also the obligation to adopt not only individual measures, but also
general measures in the domestic legal order to put an end to the violation, to grant full redress and
if possible, to prevent similar violations
13
. In their decisions, the Court and the Committee of
Ministers have paid increasing attention to the situation of the individual concerned, even
requiring the states to change their legislation and to allow the reopening of proceedings.
In sum, a judgment that founds a breach entails three obligations for the contracting state: 1)
individual measures; 2) just satisfaction; and 3) general measures. All three obligations are
expressly stated also in rule 6 of the Rules adopted by the Committee of Ministers on the
supervision of the execution of judgments
14
.

1) Individual measures
To grant redress for the damaged applicant is essential, and this is not always achieved by
the payment of a pecuniary sum for damages. The adequate redress might require the adoption of
specific individual measures to put an end to the illicit situation or to put the damaged in the
situation it was before the violation of his rights took place.
For instance, the striking out of an unjustified criminal conviction from the criminal records,
the granting of a residence permit or the re-opening of impugned domestic proceedings. In fact in
certain cases most frequently when the breach of the Convention is originated by a domestic
judicial decision or by procedural errors in the proceedings , the only effective remedy is to adopt
non-pecuniary individual measures.
13
Scozzari and Giunta v. Italy of 13.7.2000; Knig v. Germany of 10.3.1980. Further, on the right to
reparation see F. CASTRO-RIAL GARONE, El derecho de reparacin del Convenio Europeo de Derechos
Humanos, in Cuadernos de Derecho Judicial. Jurisprudencia del Tribunal Europeo de Derechos Humanos II,
Madrid CGPJ, 1995, pp. 123-158. For a comparison on the right to full reparation in the European Union system
and the European Human Rights Convention, see also J.T. OSKIERSKI, Baden-Baden 2010.
14
Rules adopted by the Committee of Ministers for the supervision of the execution of judgments and of the
terms of friendly settlements (for the application of Article 46, paragraph 2 of the European Convention on Human
Rights), adopted on 10 May 2006 at the 964
th
meeting of the Ministers deputies. Rule 6(2) says: 2. When
supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46, paragraph
2, of the Convention, the Committee of Ministers shall examine:
a. whether any just satisfaction awarded by the Court has been paid, including as the case may be, default
interest; and
b. if required, and taking into account the discretion of the High Contracting Party concerned to choose the
means necessary to comply with the judgment, whether:
i. individual measures have been taken to ensure that the violation has ceased and that the injured party is
put, as far as possible, in the same situation as that party enjoyed prior to the violation of the Convention;
ii. general measures have been adopted, preventing new violations similar to that or those found or putting
an end to continuing violations.
This is particularly evident in cases where the procedural safeguards of the defendant have
been violated but the applicant is continuing to serve the sentence
15
. The re-opening of the judicial
proceedings in such cases might be the only possible way to stop the violation and accord full
reparation for the damaged. In those cases it would not be acceptable to merely pay just satisfaction
while the applicant is still kept in prison. Recognizing that the reopening of proceedings might be the
most efficient way to achieve a full reparation or restitutio in integrum, in 2000 the Committee of
Ministers approved the Recommendation R(2000)2, on re-examination or re-opening of certain cases
at domestic level following judgments of the ECtHR, already mentioned above.
The re-opening of a proceeding, being sometimes absolutely necessary to grant redress,
poses several problems. First, it is a measure that directly conflicts with one of the essential
principles in adjudicating, which is the res judicata effect and the protection of the legal certainty
which is linked to the aforementioned principle. Second, the setting aside of a final judgment may
also affect the rights of third parties, which should also be respected. This is especially relevant in
non-criminal proceedings, as in criminal proceedings the rights of the accused should always
prevail. Despite the principle of legal certainty, the enforcement of the judgment of the ECtHR
might require to sacrifice the principle of certainty in order to put an end to a breach of the
Convention. And it is the duty of the member states to make the reopening of proceedings possible
so that a new trial can take place. This is clearly stated in the Recommendation R(2000)2 of 19
January. Pursuant to its point II it is the obligation of the states to ensure that there exist at
national level adequate possibilities to re-examination of the case, including reopening of
proceedings, in instances where the Court has found a violation of the Convention. The
possibility to reopen the proceedings has to be especially granted if two conditions are met: the
procedural violation is of such gravity that a serious doubt is cast on the outcome of the domestic
proceedings complained of, and that the injured party continues to suffer very serious negative
consequences because of the domestic decision at issue, which are not adequately remedied by the
just satisfaction and cannot be rectified except by re-examination or re-opening.
On the other hand, the procedure for reopening cases might also be effective to deal at a
domestic level with repetitive cases and thus prevent many clone-cases to come to the ECtHR. All
these reasons explain why the Court in its recent case-law shows a tendency to compel states to
reopen proceedings in order to grant full reparation
16
.
However, there are still some member states where the domestic legislation does not provide
for the reopening of a criminal case with the aim of enforcing a judgment of the ECtHR.
This is the case, for example of Spain, where there is neither a ruling on the enforcing
ECtHRs judgments nor specific measures to set aside a sentence to comply with them. This issue
has been addressed and repeatedly criticized in the scientific literature. In the absence of specific
rules to execute the judgments of the Court
17
, the re-opening of a case could only be achieved by
applying the general instruments provided in the rules of procedure to set a aside final judgment.
15
This was the situation in the case Hulki Gnes v. Turkey where the Committee of Ministers stated that not
reopening the proceedings would amount to a manifest breach of Article 46, see Interim Resolution CM/ResDH
(2007)26 of 4.4.2007.
16
For example, see Claes and others v. Belgium, of 2.6.2005, regarding a violation of the right to a tribunal
established by the law; or Lungoci v. Romania, of 26.1.2006, relating a case of violation of the right to access to
court. In this last case, the Court ordered the reopening of the proceedings, if this was the desire of the applicant,
whilst awarding at the same time the payment of a certain sum for damages.
17
On this topic see generally, S. RIPOLL CARULLA, El sistema europeo de proteccin de los derechos
humanos y el Derecho espaol, Barcelona 2007, pp. 123-137; L. BUJOSA VADELL, op.cit., pp.57 y ss.; A.
SALADO OSUNA, Efectos y ejecucin de las sentencias del Tribunal Europeo de Derechos Humanos en Derecho
Espaol, in Cuadernos de Derecho Judicial. Jurisprudencia del Tribunal Europeo de Derechos Humanos II, Madrid
CGPJ, 1995, pp. 189-223.
Focusing on the criminal procedure, these instruments under the Spanish domestic rules would be:
the pardon given by the government ; the annulment of the sentence; the review of the sentence;
or the constitutional appeal before the Constitutional Court.
However none of these instruments is adequate for the purpose of the execution of a
ECtHRs decision. In some cases, the pardon could possibly grant limited reparation of the
damage, but still not a restitutio in integrum. And in cases where the violation found by the Court
was a procedural error against the due process clause, the pardon would not allow a retrial of the
case. The annulment of the judgment can only be requested within a short time limit and only for
the specific reasons stated in the law.
Most frequently the attempts to reopen a case in order to comply with a ECtHRs decision
have gone through the review of a penal sentence. Pursuant art. 954.4 of the Spanish Code of
Criminal Procedure (CCP) review shall be granted if after the sentence has become final, new facts
or documents previously unknown that proof the innocence of the convicted defendant appear.
Only if a judgment of the ECtHR is considered a new fact that proofs the innocence, this
instrument would be suitable to reopen the case and comply with the Courts judgment. However
the Spanish Supreme Court (Criminal Chamber) has not followed this interpretation of art. 954.4
CCP: in its view a new judgment is not a new fact that proofs a factual mistake of an already
final decision, and therefore the grounds for review do not apply
18
.
On the other hand, the Spanish Constitutional Court initially admitted the possibility of
reopening a domestic case by way of constitutional appeal to grant the reparation ordered by the
ECtHR, nevertheless this position was quickly abandoned. In its judgment 245/1991 of 16.12.1991
(case Barber, Messegu y Jabardo)
19
, it made a broad interpretation of art. 10.2 of the Spanish
Constitution (SC)
20
declaring that the ECtHRs finding of a violation of art. 6 of the Convention
amounted to a violation of art.24 SC
21
, and therefore the constitutional appeal should grant
protection to the convicted defendant and on this ground annul the conviction judgment
22
. Despite
18
The Spanish Supreme Court in its sentence of 27.1.2000 refused the review of a final criminal judgment in
the case Castillo Algar, stating that the ECtHRs decision only proofed that there had been a violation of art. 6.1 of
the Convention, but it does not proof that the national sentence is wrong in the merits, nor does it proof that there
are reasons to believe that the defendant is innocent. The same reasoning can be found in the Supreme Courts
decision (Auto) of 27.7.2000, in the case Riera Blume, confirming that a final judgment cannot be reopened by way
of review in order to execute a judgment of the ECtHR.
19
On this case and its execution see C. RUIZ MIGUEL, Las sentencias del TEDH: su ejecucin desde la
perspectiva del derecho constitucional comparado y espaol, pp. 836-845, available in:
http://www.bibliojuridica.org/libros/1/113/37.pdf (visited 12.10.2010); A. SORIA JIMNEZ, La problemtica
ejecucin de las sentencias del TEDH. Anlisis de la STC 245/1991 (Asunto Barber, Messegu y Jabardo),
REDC, 36 (1996), pp. 313-356.
20
Art. 10.2 SC says: The principles relating to the fundamental rights and liberties recognised by the
Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the
international treaties and agreements thereon ratified by Spain.
21
Article 24 SC: 1. Every person has the right to obtain the effective protection of the Judges and the
Courts in the exercise of his or her legitimate rights and interests, and in no case may he go undefended.
2. Likewise, all persons have the right of access to the ordinary judge predetermined by law; to the defence
and assistance of a lawyer; to be informed of the charges brought against them; to a public trial without undue
delays and with full guarantees; to the use of evidence appropriate to their defence; to not make self-incriminating
statements; to not declare themselves guilty; and to be presumed innocent.
The law shall determine the cases in which, for reasons of family relationship or professional secrecy, it shall
not be compulsory to make statements regarding alleged criminal offences.
22
The Constitutional Court holds also that, without setting aside the criminal conviction, a just reparation
cannot be given to the applicant pursuant art. 41 of the Convention. All these reasons led the Spanish Constitutional
Court to admit the constitutional procedure as a way to enforce the ECtHR decision to reopen de criminal
proceedings.
this initial stand, the Spanish Constitutional Court has thereinafter limited its own capacity to
annul sentences in order to comply with the ECtHRs decisions. Only if following conditions are
met, the Constitutional Court would declare the re-opening of the case, and thus fill the gap of the
Spanish legislation: 1) if the right found to be violated by the ECtHR is also recognized in the
Spanish Constitution and accords protection through the constitutional appeal; 2) if it is a criminal
case; 3) if the effects of the sentence found in violation with the Convention are still lasting; and 4)
if the freedom of the individual is affected.
Through this case-law, the Spanish Constitutional seeks to give reparation to the individual
damaged in those cases where to stop the violation requires the reopening of a criminal case. It
might not be the best solution, but at least, whilst the legislation provides a specific procedure for
the execution of the ECtHR judgments, it may serve to put an end to the violation of the
Convention.

2) Just satisfaction
If possible, the just satisfaction must amount to a restitutio in integrum to the damaged. In
other words, only where the reparation of the damage and the restitutio in integrum are impossible,
it should be substituted by a pecuniary compensation.
To grant just satisfaction the Court may order the payment of a certain sum to the applicant
for pecuniary as well as non-pecuniary damages
23
. Although the Court has frequently held that the
finding of a violation in itself constitutes just satisfaction for the applicant, there is a well
established practice of granting pecuniary damages as just satisfaction. In such cases the Court sets
a time-limit for payment by the respondent state. It is the function of the Committee of Ministers
to control if the payment has been done within the established time or it has been delayed. Default
interests may be demanded if the Court ordered so in the sentence. However there is a tendency
within the Court to prefer that the just satisfaction is awarded on the domestic level
24
. With regard
to the payment of pecuniary compensation the Court has kept the tendency of reinforcing the
principle of subsidiarity embodied in the Convention. Pursuant to this principle, as a rule, the
decision of the amount to be awarded as a compensation should be referred to the respondent
state
25
. The Court would establish in the judgment a time-limit within the just satisfaction should
be granted and lay down certain criteria that could serve as reference by the state when calculating
the sum to be paid to the applicant.

3) General Measures: to offer mechanisms and safeguards to avoid the repetition of the
violation or prevent similar violations.
This may require the adoption of general measures by the member states as, for example,
legislative amendments as well as transitional measures in order to prevent new violations of the
Convention while pending the required reform
26
.
23
On the calculation of the damages, the currency, interests etc., see generally, G. DANNEMANN,
Schadenersatz bei Verletzung der Europischen menschenrechtskonvention, Kln 1994, pp. 203 et seq.; S. Ha,
op.cit., pp. 104-111.
24
See E. LAMBERT ABDELGAWAD, The execution of judgments of the European Court of Human
Rights, Strasbourg, 2008, pp. 14-17.
25
See, for example the case Paudicio v. Italy, 24.5.2007, where the Court refused to award a pecuniary sum
for damages because the applicant could claim those damages before the civil courts of his country.
26
See Vermeire v. Belgium of 29.11.1991. On precise legislative modifications launched by a judgment of
the ECtHR, see L. BUJOSA VADELL, op. cit., p. 143-144. Some of the examples of general measures cited by the
Committee of Ministers are: legislative or regulatory amendments, changes of case law or administrative practice or
publication of the Courts judgment in the language of the respondent state and its dissemination to the authorities
concerned.
Many legal changes have taken place in the member states as a consequence of the findings
made by the ECtHR in its judgments, especially related to procedural safeguards and the judicial
organization, but also in the field of criminal law, family law or administrative law. If a rule is not in
line with the Convention, it does not make any difference what type of rule it is, regulatory, statutory or
even constitutional. The Court does not make any distinction with regard to the category of the rule that
has to be amended. In practice this has led to some constitutional reforms and in general to a certain
legal harmonization within the member states, especially in the field of procedural safeguards.
The case Broniowski v. Poland
27
is the first pilot judgement aimed in improving the problem
of repetitive cases. In essence it consists of a case that decides on the claim of the applicant, but
orders the respondent state to adopt concrete general measures in order to grant full reparation to
all the other individuals affected by the same problem, identified as a systemic problem
28
. After
Broniowski, the Court has issued more judgments on pilot cases, where a systemic dysfunction
was found to be underlying
29
.
However the change of legislation may take a long time, therefore pending the reform of
domestic law, a change of the case-law or a re-interpretation of the existing rules might be
sufficient to prevent further violations. The problem in these cases is to assess in how far the
reversal of precedent will be enough to avoid future violations and if the new interpretation is
really followed by all the courts in future cases. In such cases, the supervisory function of the
Committee of Ministers turns out to be of outmost importance, in order to check if, after the
change of case law no further violations of the Convention have been found.

III. The supervision of the execution by the Committee of Ministers
30

Under the ECHR it fell to the Committee of Ministers from the out-set to supervise the
execution of the Courts judgments, functions that were strengthened after Protocol No.11 entered
https://wcd.coe.int/ViewDoc.jsp?id=999329&BackColorInternet=9999CC&BackColorIntranet=FFBB55&BackCol
orLogged=FFAC75.
27
The case Broniowski v. Poland of 22 June 2004 deals with the case of Mr Broniowski, whose
grandmother was deprived of her property, a house, as a consequence of the new territorial divisions of Poland after
the second World War. But many other people were also obliged to abandon their land. From 1944 to 1953 around
1,240,000 people were "repatriated" under the provisions of the republican agreements. Poland undertook to
compensate all those who had been "repatriated" from the "territories beyond the Bug River" and had had to
abandon their properties. Since 1946, Polish law has entitled those repatriated in such circumstances to
compensation in kind; they have been entitled to buy land from the State and have the value of the abandoned
property offset against the fee for the so-called "perpetual use" of this land or against the price of the compensatory
property or land. The State Treasury, however has been unable to fulfil its obligation to meet the compensation
claims. This caused the lodging of Mr. Broniowskis claim before the ECtHR suit that ended with a friendly
settlement , in which the Court issued a pilot judgement and ordered the state to adopt those measures to grant full
reparation to the people who had suffered the same violation of their rights as Mr. Broniowski.
28
The Court held that the violation of the applicant's Convention right deprivation of property without
compensation originated in a widespread, systemic problem as a consequence of which a whole class of people
had been adversely affected. The judgment had made clear that general measures at national level were called for in
execution of the judgment and that those measures had to take into account the many people affected and remedy
the systemic defect underlying the Court's finding of a violation. On the development of the pilot judgment
procedure, see C. PARASKEVA, The Relationship Between Domestic Implementation of the European Convention
on Human rights and the Ongoing Reforms of the European Court of Human Rights (With a Case Study on Cyprus
and Turkey), Antwerp, 2010, pp. 98 et seq.
29
See, for example, Hutten-Czapska v. Poland, of 22.2.2005; or Sejdovic v. Italy, of 10.11.2004.
30
See generally the 3rd Annual Report (2009) of the Committee of Ministers Supervision of the execution
of judgments of the European Court of Human Rights and the detailed statistics included in it.
into force and abolished the judicial functions of the Committee of Ministers. The main provision
governing the Committee of Ministers supervision of the execution of the Courts judgments is
art. 46 ECHR
31
. The scope of the execution measures required is defined in each case on the
conclusions of the Court in its judgment, considered in the light of the ECtHRs case-law and the
Committee of Ministers practice, and relevant information about the domestic situation
32
. The
Rules adopted by the Committee of Ministers for the execution supervision, as amended in 2006,
govern the supervisory procedure. Pursuant these rules new judgments establishing violations or
accepting friendly settlements are inscribed on the Committee of Ministers agenda once they
become final. In performing its supervisory functions the CM is assisted by the Department for the
Execution of Judgments, responsible for preparing the case files and contacting the relevant
national authorities. In the examination in the periodical meetings, priority is given to those
judgments that reveal an underlying systemic problem. The examination of the execution, which is
based basically on the information submitted by the respondent state, comes to the annotated
agenda under different sections. Those cases which appear to be complex, are proposed for debate,
the others are normally examined without debate. Decisions are adopted in written within fifteen
days; however some decisions regarding the cases debated might be adopted in the same meeting.
After confirming that the state has taken all the necessary measures to execute the sentence or
the friendly settlement, the CM adopts a resolution.
If the execution is being neglected, the CM may adopt one of the following types of
resolution: 1) resolution stating the non-execution, that measures have not been adopted and
inviting the state to abide by the judgment; 2) resolution noting certain progress and encourage the
state to adopt specific measures in the future, which is the most frequent kind of resolution; and 3)
resolution stating the refusal to execute the judgment and calling upon the authorities of the
member states to take such action as they deem appropriate to this end. In these cases where there
is proved that the state is reluctant to abide by the Courts judgment, the resolution may threaten
with the adoption of more serious measures, and threat with the exclusion of the Council of
Europe. Clearly this kind of resolutions and strong threats are used only exceptionally in cases
where all other mechanisms of pressure have failed and the state persists in the non-execution
33
.
The interim resolutions are a way of making information public in order to put pressure on the
reluctant state and to speed up the adoption of the required measures.

1. The modifications introduced by Protocol 14 relating to the execution of the Courts
decisions
Since the initial stages of the discussions that led to the approval of Protocol 14, the
improvement and acceleration of the execution of judgments was identified as a priority goal. This
is logic, since one of the central objectives of the reform was, not only to reduce the heavy
workload of the ECtHR, but to improve the implementation of the Convention system. By
reinforcing the effectiveness of the execution, not only the individual violation will cease and the
31
See above under footnote N. 9.
32
See the 3rd Annual Report (2009) of the Committee of Ministers Supervision of the execution of
judgments of the European Court of Human Rights, p.19.
33
This was the situation in the case of Loizidou v. Turkey, of 28.11.1996, where the CM in its Interim
resolution of 26.6.2001 for the first time threatened with the exclusion. Theoretically this measure could be possible
under art. 8 of the Statute of the Council of Europe if the refusal to execute the Courts judgments is interpreted as a
violation of art. 3 of the Statute. In practice however the threat of exclusion is implausible and obviously not an
effective measure. However precisely in the case of Loizidou v. Turkey following the interim resolution of the CM,
the European Union reacted by introducing in its partnership agreement with Turkey the requirement to comply
with the ECtHRs judgments. See E. LAMBERT ABDELGAWAD, op.cit., p. 41. The case also gave rise to action
by the Parliamentary Assembly and the Secretary General of the Council of Europe.
adequate redress to the injured granted. The effectiveness of the enforcement procedures has a
broader consequence upon the whole Convention system: it contributes to reduce the violations in
general and thus to reduce the number of applications filed with the ECtHR. And in fact, in every
legal system, the more rapid and effective the enforcement of judges is, the deterrence effect of
violating the law increases. If the execution of the Courts decision requires general measures to be
adopted in order to overcome a systemic problem, the more rapidly these measures are taken, the
fewer the number of repetitive violations, and thus the fewer the number of identical applications
to the Court
34
. This is why specifically the Preliminary report states that in order to maintain the
effectiveness of the system, it is necessary to improve the supervision of the execution of
judgments.
With regard to the execution of the Courts decisions Protocol No. 14 accords two new
competences to the Committee of Ministers: the right to request the Court for an interpretation of a
judgment in order to facilitate its execution; and the right to bring infringement proceedings
35
. As
set forth in the explanatory report of Protocol 14, there were no intermediate measures between the
light pressure of interim resolutions and the hard measure of art.8. And precisely, because of the
hard consequences of art.8 it cannot be used to compel with the execution of the Courts decisions.
Three new paragraphs have been added to art. 46 ECHR by way of art.16 of Protocol 14 to
overcome the existing shortcomings in the execution of judgments:
46.3 If the Committee of Ministers considers that the supervision of the execution of a
final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter
to the Court for a ruling on the question of interpretation. A referral decision shall require a
majority vote of two thirds of the representatives entitled to sit on the Committee:
4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by
a final judgment in a case to which it is a party, it may, after serving formal notice on that party
and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the
Committee, refer to the Court the question whether that Party has failed to fulfil its obligation
under paragraph 1.
5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of
Ministers for consideration of the measures to be taken. If the Court finds no violation of
paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination
of the case.
The amendment introduced in Art.46.3 tries to deal with the problem of lack of precision or
clarity in the Courts judgments which may create difficulties regarding the quick and efficient
execution.
Paragraphs 4 and 5 of art. 46 regulate the new infringement proceedings by which the Court
may support the tasks of the CM with an additional judgment deciding whether the state has taken
the measures required by the judgment or not. The entry into force of Protocol No.14 has been
awaited with much interest and hope by the Committee of Ministers. But still, the introduction of
an infringement proceeding has been not unanimously supported as it raises important legal and
34
See W. VANDENHOLE, Execution of Judgments, in Protocol No. 14 and the Reform of the European
Court of Human Rights (P. Lemmens and W. Vandenhole eds.), Antwerpen 2005, p. 114.
35
Art. 15 of Protocol 14 also introduces a new wording for art. 39 of the Convention which formally
provides for supervision by the CM of the terms of the friendly settlement. Although this does not represent a
practical innovation as the decisions of the Court endorsing friendly settlements took the form of judgments, the CM
already supervised its execution under art. 46.2. Still, from now on, friendly settlements will not have to be
judgments, and even taken the form of a Courts decision, they will be supervised by the CM. See W.
VANDENHOLE, Execution of Judgments, op.cit., p 117.
practical questions
36
. In fact, during the drafting process of Protocol No. 14 the Court opposed to
their adoption, so it is not easy to say what can be in practice expected from this new instrument.
In my opinion its objective is mainly preventive: by merely giving the possibility that the findings
of the CM might be supported by a judgment by the Court, may increase the pressure on the state
to fulfil its obligations. It can be expected that it only will be used in very exceptional serious cases
of repeated violation of the obligation to execute a judgment. In any case, it is doubtful that in a
case of persistent failure of a state to abide by the Courts judgments, when the concerned state is
really unwilling to take the required measures, the decision of the Court stating such non-execution
would change much
37
.

IV. Conclusions
Systematic refusal by a state to enforce a judgment of the ECtHR is uncommon; the
majority of states try to act in compliance with the Convention and the case-law of the ECtHR.
However, there are some serious cases of persistent refusal of certain states to take the necessary
measures to comply with the Courts ruling. Such cases have to be addressed with effective
measures in order to maintain the credibility of the system. More frequently the enforcement
suffers unacceptable delays, specifically when the execution of the judgment and the avoidance of
another violation require introducing important legislative reforms in a legal system. Political
reasons and budgetary reasons may also hamper the swift execution of the Courts judgments. The
modifications introduced by Protocol 14, entered into force in the 1
st
June 2010, try among other
issues, to introduce additional tools to strengthen the execution of the Courts judgments and
achieve its compliance. It is too early to make an assessment of the improvements that might be
achieved by them and to evaluate how the new art. 46 ECHR will be able to speed up and make
more effective the procedure of execution of judgments. Much effort and hope has also been put in
the measures adopted relating the so called pilot judgments to prevent clone cases and the
consequent applications, but only time will show if they turned out to be effective or not.
The measures taken to strengthen the supervision of the enforcement by the Committee of
Ministers might not be as effective as a system of daily fines to compel the states to abide by the
Courts decisions
38
. Nevertheless, taken together, many steps have been taken in the last decade
towards a more effective execution of the Courts procedure. The establishment of a record of non
executed decisions; the publication of the information provided and the evaluations made related
to the execution of judgments; the existence of an effective supervisory procedure, with a clear
working method within the meetings of the CM; the efforts made by the CM to evaluate the
36
For example, E. LAMBERT ABDELGAWAD, op.cit., p.58 mentions following questions with regard to
the infringement proceedings introduced in art. 46.4 and .5 of the Convention: What would be the procedural rights
of the respondent state in these proceedings? What would be the basis for making a finding of violation? Would this
not raise questions of interpretation of the initial judgment? Would this not confuse the existing clear distinction
between the political/executive branch of the Council of Europe and its judicial branch?
37
In the same sense, W. VANDENHOLE, Execution of Judgments, op.cit., p.120: the lack of any
accompanying sanctions, makes it unlikely that much additional pressure will result from these infringement
procedures. See also, L. CAFLISH, La mise en ouvre des arrts de la Cour: nouvelles tendances, in La nouvelle
procdure devant la Cour europenne des droits de lhomme aprs le Protocole n 14, (F. Salerno dir.), p. 174.
38
In its Resolution 1411 (2004), already quoted, the Parliamentary Assembly regrets that the system of daily
fines has not been adopted: 16. The Assembly welcomed the possibility of the Committee of Ministers asking the
Court to clarify its decisions in cases of disputes concerning the requested measures, as established by Protocol No.
14, but regrets that its proposal to establish a system of astreintes (daily fines for a delay in the performance of a
legal obligation) has been rejected.
developments made at national level and the possible existence of structural problems; the issuing
and publication of interim resolutions by the CM; the publication of an annual report on the
supervision of the execution of judgments; the pressure exerted through press releases; the
involvement of the Parliamentary Assembly in the monitoring of the execution procedure and the
pressure put to the national authorities through the state delegates; the dissemination and
translation of the Courts judgments; the cooperation with the states concerned in identifying the
systemic or structural problems; the assistance given by the Council of Europe in the drafting of
laws and improving the domestic remedies; and the adoption of best practices that would help to
prevent future violations of the Convention, are all together measures that contribute to improve
the execution of the Courts judgment and the effectiveness of the Conventions system. Still,
education and training of all the legal players and the civil society in the culture of human
rights is of the outmost relevance for the implementation of the human rights standards within the
member states of the Council of Europe, particularly in young democracies and transitional
countries: the understanding of human rights culture and its significance is the best mechanism to
improve the execution of the Courts judgments and, obviously, the implementation of the
Convention as a whole. And in this field there is still much to be done.
FORENSIC ISSUES IN FAMILY ABANDON OFFENCE
INVESTIGATION
Carmina ALECA
Daniela IANCU
Abstract
Family is community foundation, thus contributing to a very well-structured society able to
ensure a healthy and safe environment in which any family can promote its members welfare,
without excluding support that herself deserves from its own society. Considering the crucial role
of family in any society, being inextricably linked to its function or dysfunction, due to time it felt
the need to strengthen family relationships through a better legislation in the area, which has been
concretized in incriminating acts likely to affect the social relations that protect it. With this
respect, we particularly pay attention to determining the nature of crime and assessing its effects,
for an appropriate qualification of the act as a criminal act or just as a contravention. It is also
required a content decryption of incrimination and also a clarification of all existing and
questioned controversies in practice and in juridical literature. Forensic methodology is based on
researching normative ways of committing this crime, with a special focus on factual arran-
gements in aggravated forms, although there is no legal provision in this sense. The investigation
search engine highlights criminal field lines, reflecting the whole family picture in which the
perpetrator is conducted, taking into account his psychological attitude of his actions.

Keywords: family relationships, welfare, abandon, offence, investigation

Introduction
The Romanian lawmaker has given particular importance to the regulating of family
relations, most of the times instituting through legal norms of imperative nature, both the personal
and patrimonial duties that exist between spouses and the relations between parents and children.
Without stating that one of these duties is more important than another, the study before you
focuses on the fulfilling of these duties, necessary for the family members to coexist in a quiet
environment or, in any case, bearing the costs of supporting them financially. As the family is the
basis of society, an analysis of the relations within it is especially important owing to the fact that
preserving the family can only be an advantage for any society.
From this point of view, the law must find the necessary solutions in order that the
behaviour of a family member does not harm the integrity of the others, in case one fails to do
ones lawful duties adequately. According to Romanian law, the act of abandonment is a non-
violent offence, and investigating it is much more complex, difficult and needing more attention.
Assistant, Ph. D. Candidate, Faculty of Juridical and Administrative Sciences, University of Pitesti,
(e-mail: [email protected]).
Lecturer, Ph. D., Faculty of Juridical and Administrative Sciences, University of Pitesti, (e-mail:
[email protected]) .

Carmina Aleca Daniela Iancu 23
This is the reason why this study analyses the subject of the offence, the forms of culpability, the
ill will (decisive in this case), as well as a series of controversial elements concerning the subject
in question. This paper presents an analysis of penal doctrine, with the mention that this offence is
not widely found in this particular doctrine. This is in fact the reason why this subject is analysed
in the present interdisciplinary study.

1. The Need to Institute a Well Structured Legal Framework to Ensure the Efficient
Protection of Family Values
Many international documents
39
have brought the family into discussion, the family as a
natural and fundamental element of society with the right to the protection of the state and
society
40
. A particularly important problem is that of respecting family life in domestic law. In this
sense, it has also been stated that a certain respect owed to the individual must be guaranteed,
because he holds certain prerogatives, which permit him to demand respect for his private and
family life
41
. By the same token, The family is the natural and fundamental group unit of society
and is entitled to protection by society and the state, and the fact that Every minor child has the
right to the measures of protection required by his condition as a minor on the part of the family,
society and the state
42
is also mentioned. Taking all these things into consideration, it becomes
clear that the family has always been and will continue to be the key unit of all human societies
43
,
and any disintegration of it will lead in itself to a destruction of social life.
For our part, we consider that there should be a consciousness in every one of us. This could help
us understand each other better, with all our needs and therefore understand our limits as well as our
duties, in full accordance with societys requirements. It has been said
44
, for good reason that the
determinant factors, which limits mans capacity to suppress his violent impulses, are the economic and
social conditions. In this sense, it was intended to find out how far the authorities should be involved
when situations arise that could harm these social values, and further attention must be paid to the study
of this phenomenon, in order to identify its causes and the methods to prevent them.
The family is considered of crucial social value in our society and all actions that could
harm it represent a serious social peril for our protected values, a fact that requires the distinct
regulation of these offences, within a well structured legal system. The legal ground for
incrimination is that abandonment goes against the most basic feeling of solidarity and mutual aid
that all family members owe one another, and thus this act is punished by the penal law
45
.

2. Interpreting the Legal Text. Identifying the Factual Causation
A series of discussions have appeared in specialized literature
46
that aim to clarify the
factual causation that could arise, depending on the different concrete data of every cause
39
R. erbnescu et al., Principalele instrumente internationale privind drepturile omului la care Romnia
este parte, Vol. 1 Instrumente internaionale, 8
th
edition revised (Bucureti: Ed. I.R.D.O., 2006).
40
F. Sudre, Drept european i internaional al drepturilor omului (translated) (Iai: Ed. Polirom, 2006), 312.
41
C. Brsan, Convenia european a drepturilor omului. Comentariu pe articole, vol. 1, Drepturi i liberti,
(Bucureti: Ed. All Beck, 2005), 593.
42
Articles 17, 19 from the American Convention on Human Rights (ACHR), on the 22
rd
November 1969.
43
Al. Boroi, Infraciuni contra unor relaii de convieuire social (Bucureti: Ed. All Beck, 1998), 18.
44
D. Voinea and V. Lpdui, Consideraii privind faptele comise cu violen de-a lungul timpului,
published in the volume The International Symposium for Criminal Inverstigation of Crimes of Violence, organized
by the Romanian Criminology Association and the General Inspectorate of the Romanian Police (the 4
th
-5
th
Nov.
2008), (Bucharest, 2009), 9.
45
V. Dongoroz et al., Explicaii teoretice ale codului penal al RSR, vol. IV (Bucureti: Ed. Academiei
RSR, 1972), 508.
46
V. Dongoroz et al., Explicaii teoretice ale Codului penal romn, vol. III, Partea Special (Bucureti:
Editura Academiei Romne, 1971), 573; V. Dongoroz et al., Explicaiile teoretice ale Codului penal romn, vol. IV,
second edition (Bucureti: Editura All Beck, 2003), 512.
separately, aspects that should be carefully considered in individualizing the punishment. By this
token, even thought the laws text stipulates that the act of abandonment has only simple
modalities, there are more aggravated forms of it, such as, in the situation in which among the
people left helpless there are more children, a situation in which the person indebted to sustain
them is ill or the situation in which the perpetrator keeps changing his residence for the clear
purpose of evading his legal obligations. Thus, the legal provisions are to be carefully interpreted,
as the police have the task of carefully enforcing these in concrete, actual situations, which are
mostly aggravated forms of abandonment, the more so as when it concerns an either way
offence
47
, wherein each of the ways in which the offence was committed is separately considered
as it can characterize the offence
48
.
Taking into consideration the multitude of factual ways in which an offence of abandonment
can be committed, we are going to try to outline the particulars of investigating it, and we mention
that is by this very investigation we obtain many of the indications referring to the causes and
effects of such actions.

3. The Main Issues the Object of Probation That Must Be Clarified During the
Criminal Investigation. Legally Classifying the Act of Abandonment Ofence or Minor
Offence?
In order to sort out the main issues referring to the illegal activity, it is paramount to
establish whether the action consisted in driving away, abandoning or leaving without help people
who are entitled to support, or consisted in not fulfilling in ill will the obligation of support as
stipulated by law, or in the action of not paying in ill will, for two months, of the support money as
decided on by the court of justice. We must also mention that, in all the aforementioned cases,
there is a need to establish, in concreto, who are the persons entitled to support and which is the
fact that confers them this right.
Speaking for our part, we consider it crucially necessary to clarify all problems connected to
the perpetration of the offence of abandonment, since
49
many cases investigated by the authorities
were based on unfounded complaints, made with the sole purpose of bringing the person that had
left the marital home back to the family, by pressuring that person, although they fulfilled their
obligation of support or those abandoned were not the victims of physical and emotional abuse or
they are not even in need of support. The ill will, with which the perpetrator acts is the very basis
of the incrimination for this offence and the existence of the offence is registered even when the
perpetrator remains passive, by leaving the entitled party without the necessary support.
It is relevant to this that the criminal investigation to ascertain whether the abandoned party
was or was not exposed to physical or emotional abuse, whether such abuse had been inflicted on
them of is about to and what did it consist in. We also add that the need to establish the
consequences of this action is great, in order to classify it as either the offence of abandonment or
as a simple offence
50
, by throwing out of the family home of the spouse, the children and any other
person entitled to support. Being exposed to physical or mental abuse is a condition sine-qua-non
to document abandonment, meaning that if the person entitled to alimony was not exposed to such
47
V. Dobrinoiu and N. Conea, Drept penal.Partea special. Teorie i practic juridic (Bucureti: Ed.
Lumina Lex, 2002), 474.
48
T. Vasilescu et al., Codul penal al RSR, comentat i asnotat Pareta Special, vol. II (Bucureti: Editura
tiinific i Enciclopedic, 1977), 380.
49
I. Cora et al., Curs de criminalistic, vol. III, Metodic criminalistic, Partea a III-a, Ministerul de Interne
(Bucureti, 1977), 21.
50
Law nr. 61 from the 27
th
of October 1991 to punish the acts of offending the rules of social life, order and
public peace, published in the Official Monitor nr. 196 (from 27/Sep/1991, art. 2. letter )
abuse, then the action does not constitute an offence
51
. Therefore, there is no offence of
abandonment in the situation, in which the mother abandons the family home, and the underage
children remain under the care of the employed father and other two children, who are over 18
years old and have their en incomes
52
. When using the phrase exposing to physical and mental
abuse, it must be understood in the sense of maximum probability of the abuse being suffered or
to suggest without a doubt that it could be so, and therefore it is not absolutely necessary for it to
have already happened
53
. Had the lawmaker the actual suffering of the abuse, he would then have
used the phrase producing physical and mental abuse.
Therefore, it is absolutely necessary that all offences of the law have as a consequence the
injury of a person and physical and emotional suffering, per a contrario, the offence of
abandonment is not documented if the particular actions and inactions did not expose the party
entitled to alimony to physical and emotional suffering
54
.
Regarding the second legal variant stipulated by the text of the law for committing this
offence, namely when the act consists in not fulfilling the obligation to pay alimony, any criminal
investigation must establish to what extent the entitled party is in need of support, given that this
situation represents the condition sine-qua-non for documenting the offence of abandonment done
in this way
55
. It is not required that the party entitled to alimony be exposed to physical and
emotional abuse, but only that the perpetrator commit the offence in ill will
56
. There is therefore
ill will if the perpetrator, although capable of work, systematically refuses to become employed in
order to obtain the necessary income to fulfill his family duties
57
. Thus, the meaning of obligation
to support, the which the text of the second variant of constituting a material argument makes
reference to, is not that of a sum of money in the form of a pension, rather material and moral
support given by a person as obliged by the law
58
. Thus, the obligation to support must be
understood as providing what is necessary in daily life food, clothing, medicine without which
family life and the relations between its members is inconceivable
59
.
Considering the nature of this obligation to support, it can appear directly in the law, as in
the situation of parents responsible for feeding and clothing their children, but it can be instituted
by a judicial decision, as in the situation of a person obliged to a pay a lifelong pension for injuries
inflicted
60
.
The lawmaker conditions the existence of the right to receive the entitled party, who is in a
state of need, to receive alimony. This implies that the parent that does not give the necessary
51
T.M.B., sectia a II-a, dec. pen. nr. 862/1989 (unpubliched).
52
Court of Braov, dec. 772/1973, in R.R.D. nr. 9 (1974): 66.
53
T. Vasiliu et al., Codul penal comentat i adnotat, vol. II, (Bucureti: Ed. tiinific i Enciclopedic,
1977), 382.
54
T.J. Braov, dec, 172 from 1993, in Dreptul nr. 9/1994, p.68; TS, sect. pen., dec. Nr. 1699 from 1979 in
R.R.D. nr. 4 (1980): 63; J. SatuMare, stp.23 from 1982, in R.R.D. nr. 2 (1983): 56.
55
I. Cora et al., Curs de criminalistic, vol. III, Metodic criminalistic, partea a III-a, Ministerul de Interne
(Bucureti, 1977), 18.
56
A. Boroi, Infraciuni contra unor relaii de convieuire social (Bucureti: Ed. All Beck, 1988), 32.
57
A. Verde, Elementul subiectiv la infraciunea de abandon de familie, Revista Romn de Drept nr. 9
(1969): 72.
58
Art. 101 Family Code parents are obliged to care of the child. They are obliged to raise the child, to take
care of his health and physical development, education, his professional training, according to his qualities,
conforming with the states goals, to make him useful to the community.
59
T. Vasiliu et al., Codul penal al R.S.R., comentat i adnotat Partea special, vol. II (Bucureti: Editura
tiinific i Enciclopedic, 1977), 381; V. Dobrinoiu and N Cornea, Drept penal. Partea special, vol. II
(Bucureti: Ed. Lumina Lex, 2002), 476.
60
V. Dongoroz et al., Explicaii teoretice ale codului penal romn, vol. IV, second edition (Bucureti: Ed.
All Beck, 2003), 476.
means of living to his child that has his own income, is not in contravention of the penal law. And
just the same, it does not constitute abandonment by not fulfilling the obligations of the mother to
pay a monthly sum to the minor entrusted to a childrens home
61
.
It is not required that the person entitled to receive alimony be exposed to physical and
moral suffering, but only that the perpetrator commit the offence with ill will
62
.
In the case of spouses, the obligation to support must be related to their obligation to bear the
wedding costs, and the common property of the spouses contributes to this obligation. Therefore, on
the basis of the provisions of the Family Code both spouses have the mutual obligation to contribute
to the familial obligations equally, and we are of the opinion
63
that it constitutes an act of
abandonment if the parent who although has his own income, he uses them in a personal interest
and unjustifiably refuses to use it to fulfill his familial duties.
Considering the nature of this obligation to support, it can appear directly in the law, as in the
situation of parents responsible for feeding and clothing their children, but it can be instituted by a
judicial decision, as in the situation of a person obliged to a pay a lifelong pension for harm inflicted
64
.
In reference to the last legal variant, consisting in the not payment of alimony in ill will, a
criminal investigation must ascertain whether there is a court order that declares this, the total sum
of the alimony decided by the court, whether the perpetrator fulfilled his obligations and in what
way, as well as whether the term imposed by the law of definitive remaining of the courts
decision was met, or when was the alimony payment cut off. The lawmaker does not condition the
existence of the offence committed in this way out of the need to constrainedly execute the court
order, thorough which the alimony was set
65
. The term of two months for the alimony payment
comes into effect on the date the court order concerning the obligation to support became definite
or it is executed alternatively. In the situation were the court order was begun being executed, but
eventually the payments stopped, a new term of two months commences since the date when the
last payment was made
66
. Therefore, a partial payment is considered a non payment, because it is
not the amount set by the court
67
.
Considering the provisions
68
of the Family Code, which stipulate that an essential condition
for a person to benefit from alimony is for him to be in a state of need, the minor is assumed to be
in need, per a contrario, every time he earns his own income that permit him to afford a decent
living, he cannot be considered in need of support. Therefore, even though the minor does have his
own income, yet not enough to afford the necessary conditions to grow up, an education or a
professional training, then the nonpayment of the alimony make the obliged party responsible in
the eyes of the law
69
. Therefore, even if the minor has found work and has his own income, it does
61
The Timi County Court. pen. dec. Nr. 584/1976, in R.R.D. nr. 11 (1976): 53.
62
A. Boroi, Infraciuni contra unor relaii de convieuire social (Bucurti: Ed. All Beck, 1988), 32.
63
A. Boroi, Infraciuni contra unor relaii de convieuire social (Bucurti: Ed. All Beck, 1988), 32.
64
All Beck, 2003), 510.
65
To see O. A. Stoica, Drept penal, partea special (Bucureti: Ed. Didactic i Pedagogic, 1976), 403.
As regards this point of view, in case there is a court order whereby the obligation to support is established
and it is forcibly executed, then the obligation to pay falls on the third garnished party, which exonerates the obliged
party of any obligation, in case of non payment of alimony after the act of garnishment came into effect. Therefore,
in this case there is no offence of abandonment.
66
All Beck, 2003), 511. Gh. Nistoreanu et al., Drept penal, partea special, vol I (Bucureti, 1994), 558; O. Loghin
and A. Filipa, Drept penal, partea special (Bucureti: Casa de editur i pres ansa S.R.L., 1992), 298.
67
V. Dongoroz et al., Explicaii teoretice ale codului penal romn, vol. IV, second edition, (Bucureti: Ed.
All Beck, 2003), 511; V. Brutaru, Abandon de familie, Revista de drept penal, Anul XIV, Nr.2 (aprilie-iunie)
(Bucureti, 2007): 94-104.
68
Article 86 from the Family Code.
69
T.S., sec. pen., decizia nr 221/1973 (nepublicat); Trib. Supr, sec. pen. dec. nr. 221/1973, n C.D. (1973): 53.
not mean that the parent is automatically released from paying the alimony he owed. So the minor
that earns his own income is still eligible for support as this is not sufficient to ensure the
necessities for a good development, education and professional training. That is why, not paying
the alimony in ill will, within the conditions of article 305 paragraph, letter c), of the Criminal
Code, constitutes in this case the offence of abandonment
70
.
Therefore, in this last case it is most important to establish the presence of ill will, meaning
that any criminal investigation must prove the fact that the person obliged to support, has
voluntarily avoided fulfilling this obligation, despite the fact that he had the opportunity to pay the
alimony as ordered by the court. In order to explain this matter, it must be ascertained which were
the material capabilities of the offender and how much, in proportion to them, could he pay the
alimony. Per a contrario, if the evidence proves that the offender did not have any objective
reasons not to fulfill his obligations, it will be considered that he acted in ill will and with intent
71
.
Time is an important factor in establishing whether there was ill will, and therefore that the
offence exists. Clarifying the issue of the time when the offence was committed or when no action
was taken by the offender, is important in establishing his guilt.
As we have previously mentioned, special attention must be paid
72
to how the perpetrator
acted, in order to attribute the way he acted to ill will, taking into account the times he frequently
changed jobs, that he did not notify his place of employment about his obligation to support, quitting
his residence to avoid being forced to pay. Ill will also exists in the situation where the offender,
although able to work, systematically refuses to become employed to obtain the income necessary to
fulfill his obligations to his family
73
, as in the case when a parent does not pay in ill will the alimony
to support the minor for two months, even if the minor has his own income, though they are
insufficient to ensure the necessary conditions to develop, study and gain a professional training
74
,
and even if the minor resides with the parents of the plaintiff who take care of him
75
.
As a defining note concerning each one of these legal variants, it must be ascertained how
much the person entitled to receive support is deprived of the means to live (a home, food,
clothing, medicine) or of the moral support (lack of help and assistance), taking the form of
physical or emotional suffering. When the entitled party is exposed to the danger of ending up in
such a situation, it has the same consequences that justify incriminating the act of abandonment.
For example, when the injured party faces eviction from his own house or his financial resources
are almost gone, remaining without financial support
76
.

4. Controversies Concerning the Unity and Plurality of the Offence in Matters of
Abandonment
The situation in which a parent cannot pay alimony to several minor children is a particular
problem. Opinions expressed in specialized literature are divided, on one side we have the unity of
the offence
77
, and on the other we have the plurality of the offence
78
.
70
Trib. Supr., sec. pen., dec. Nr 2211-1973, n C.D. (1973): 443.
71
V. Dongoroz et al., Explicaii teoretice ale codului penal romn, vol. III, Partea special, (Bucureti:
Editura Academiei Romne, 1971), 572.
72
I. Cora et al., Curs de criminalistic, vol. III, Metodic criminalistic, partea a III-a, Ministerul de Interne
(Bucureti, 1977), 19.
73
T.S. sec. Pen. Dec. 2612 din 1972, C.D.: 380; T.J. Timi, dec. pen. 1din 1970, RRD nr. 10 (1970): 163,
Aristorel Verde, Elementul subiectiv n infraciunea de abandon de familie, RRD nr. 9 (1969): 72.
74
T.S. sec. pen. Dec. 2211 din 1973, C.D. : 433.
75
T.S. Timi, dec. pen. 709 din 1973, RRD nr. 12 (1973): 157.
76
V. Dongoroz et al., Explicaii teoretice ale codului penal romn, vol. IV, ed. a II-a (Bucureti: Editura All
Beck, 2003), 510.
77
G. Antoniu and C. Bulai, Practic judiciar penal, vol. III, Partea special, (Bucureti: Ed. Academiei
Romne, 1992), 269; n acelai sens i majoritatea soluiilor din practica judiciar: T.S. sec. pen., dec. nr. 1369 din
Practically
79
, it has been decided that many offences can be classified as abandonment under
the variant stipulated by article 305 letter c) of the Criminal Code, and materialized in the form of the
offences regulated by article 33 of the Criminal Code, in the situation in which the alimony was not
paid in ill will for more than two months, as decided by a single court order or even by orders given
at separate dates and concerning more than one minor. The decisions made by the court are based on
the offenders not paying the alimony, which had several results, thus proving the plurality of the
offence committed as stipulated by art. 305 letter c) of the Criminal Code.
The problem raised in this respect was the possibility of committing this offence in both the
ways stipulated by article 33 of the Criminal Code, as materialized as real or ideal offences. The
resolutions given on this matter did not emphasize the number of judicial orders that obliged the
offender to financially support the minor, as there could be only one judicial order or even more,
but it did take into account the results of the sole inaction of the perpetrator.
Therefore
80
, when the perpetrator is obliged by the court after only one ruling to support two
or more children, the offence of abandonment takes on the ideal form of this offence, and it is the
same in the case if there are two judicial rulings given at the same time. However, the case is
different when the judicial rulings, whereby the obligation to support more minors was issued,
were given at distinct times; this represents the real form of the offence as stipulated by article 305
letter c).
For our part, we consider that there is only one offence, even though there are more judicial
ruling in favour of several persons; we sustain this opinion by arguing that to establish the
obligation to support, the court must taking into consideration its personal character
81
, in the sense
that this obligation must be clearly established, in relation to the needs of every minor, and
connected to the debtor or creditor. Therefore, the number of minors entitled to alimony
determines the number of legal relations that appear, as every minor is a passive subject of the
offence, and there are as many obligations to support financially as there are underage children.
Thus, there are several results, because by the nonpayment in ill will each minor suffers material
damages as the determined by the different needs and interests of every one.
Relating to this matter, we state that the rulings given in practice
82
by the Supreme Court
consider that, in the case the alimony was not paid for several persons, there is only one offence of
abandonment, even though there are several judicial rulings in favour of several persons.

5. A Controversial Matter Concerning the Progressive Form of the Offence of
abandonment and the Moment When Its Consequences are Considered
The need to establish the progressiveness of the offence of abandonment consists in the
consideration the legal effects that is done in relation to the date when the offence was committed
1982 n R.R.D. nr. 6 (1983): 61; Tj. Prahova, dec. pen. 639 din 1982, n R.R.D. nr. 2 (1983): 65; Tj. Suceava, dec.
pen. nr. 673 din 1982, n R.R.D. nr. 12 (1983): 102.
78
Gh. Vizitiu, Consideraii privind ncadrarea juridic n materia abandonului de familie prevzut de art.
305 lit.c) C. pen, n R.R.D. nr. 2 (1979): 24, not la soluiile J. Suceava, stp. 92 din 1976, 486 din 1975, 1378 din
1975.
79
In this sense a series of criminal sentences for abandonment were considered, materialized as the
nonpayment of the alimony for a periode longer than two consecutive months, such as criminal sentence nr. 186
from the 14
th
of April 1995, sentence nr. 92 from the 22
nd
of January 1996, sentence nr. 1378 from the 14
th
of
November 1995 (Suceava County), unpublished.
80
A. Boroi, Infractiuni contra unor relatii de convietuire sociala (Bucuresti: Ed. ALL Beck, 1998), 40.
81
Article 94 from the Family Code stipulates that alimony is the personal right of the minor and it is owed to
him in relation to his state of need and the means of the person that pays it.
82
C.S.J., sec. pen, dec. nr. 269/1993 (nepublicata); T.S. sec. pen., dec. nr. 1369 din 1982, in Revista Romana
de Drept, nr. 6 (1983): 61.
and not relation to the date when it comes to an end
83
. On one side
84
, it has been asserted that all
legal consequences of the of a continuous offense must happen while taking into account the date
of the action or inaction specific to the main offence. On the other side
85
, it is considered that these
consequences must be connected to the precise date of the most serious outcome and in relation to
it the offence is legally classified and the sanctions applied.
With regards to the committing of the offence in the fist way, this does not pose a problem
of classification as a temporary offence, that is done once the entitled party is abandoned, thrown
out of the house or left without support.
As opposed to the first way the offence is committed, which is characterized as a temporary
offence, the act of abandonment done with no ill will has a continuous quality, imposed by the
nature of the obligation to support financially, a fact that implies the possibility of committing it
during a period of time, in which the entitled person is in a state of need. As it is a continuous
offence, it is over when the illegal action stops.
The act of abandonment, consisting in the not paying of the alimony when the offender
becomes passive, after two months have passed, without any payment being made during this
time, or when a verdict is passed for this offence
86
. Therefore, the offence reaches its end when it
is stopped, either by fulfilling the obligation, either by sentencing the offender. In the case where
the offenders salary is retained for not paying the alimony in ill will, the offence ends when this
comes into effect. Thus, if amnesty is reached, the misdeed is considered as pardoned
87
. This
solution has only partly been accepted, and it has been somewhat criticized
88
, because if after his
salary is withheld, the offender keeps cashing it without taking out the amount for the alimony and
with no concern for who is guilty for this, the offence is not completely ended, because it is no the
official act of withholding the salary that is decisive, but the end of the illegal conduct of the
offender.
Some are of the opinion
89
, to which we do not ascribe, that the offence of abandonment,
consisting in not paying the alimony, is a momentary offence that ends once the two month
deadline is reached.
Taking into account the two moments when the act of abandonment is assumed to have been
committed according to the second legal way as stipulated by the law, we consider, along with
other authors
90
, that it is a continuous offence, because the illegal activity is not over when the two
83
Maria Zolyneak, Unele aspecte ale aplicrii legii penale n timp, Analele tiinifice ale Universitii
Al.I. Cuza (Iai, 1875): 81 i urm.; Maria Zolyneak, Drept penal, partea general, vol. II (Iai: Ed. Fundaiei
Chemarea, 1993), 457.
84
C-tin Butiuc, Infraciunea complex (Bucureti: Ed. All. Beck, 1999), 12; Al. Boroi and Gh. Nistoreanu,
Drept penal. Partea general, ed. a IV-a revizuit conform noului Cod Penal, (Bucureti: Ed. All. Beck, 2006), 233;
Al Boroi, Drept penal. Partea general (Bucureti: Ed. CH. Beck, 2006), 175; Gh. Alecu, Drept penal. Partea
general, curs universitar, ediia a II a revizuit i adugit (Constana: Ed. Europolis, 2007), 313.
85
C. Bulai, Drept penal. Partea general, vol. I (Bucureti: Casa de Editur i pres ansa SRL, 1992), 219;
M. A. Hotca, Drept penal. Partea general (Bucureti: Ed. CH. Beck, 2007), 474.
86
D. Pavel, Infractiuni contra familiei din noul Cod penal, in RRD nr. 10 (1969): 59.
87
T.S., sec. pen. dec. nr. 1824 din 1988, in RRD nr. 9-12, (1989): 143.
88
G. Antoniu and C-tin Bulai, Practica judiciara penala, Partea speciala, vol. III (Bucuresti: Ed. Academiei
Romane, 1992), 270.
89
I. Oancea, Abandonul de familie, in V. Dongoroz Explicatii teoretice ale Codului penal roman, Partea
speciala, vol. IV (Bucuresti: Ed. Academiei Romane, 1972), 573.
90
O. A. Stoica, Drept penal, partea speciala (Bucuresti: Ed. Didactica si pedagogica, 1976), 403; T. Vasiliu,
D. Pavel, G. Antoniu, ST. Dane, G. Daranga, D. Lucinescu, V. Papadopol, V. Rmureanu, Codul penal al R.S.R.
comentat si adnotat adnotat Partea speciala, vol. II (Bucuresti: Editura Stintifica si Enciclopedica, 1977), 381 ; D.
Pavel, Infraciuni contra familiei n noul Cod penal, n R.R.D. nr. 10 (1969): 59 ; I.C.Vurdea, O problem de
aplicare a amnistiei n infraciunea de abandon de familie, n R.R.D. nr. 12 (1970): 19.
month deadline is reached, without the payment of the alimony being made in this time, but
continues until the payment is made and the offender sentenced, the moment when the offence
comes to an end; after this moment, if the alimony is again not paid, it constitutes a new offence of
abandonment, committed as stipulated by article 305 letter c) of the Criminal Code.

Conclusions
The criminal inquest into the offence of abandonment has a series of particularities in order
to give evidence of it, as it is of great importance to settle all the problems that arise from the
diversity of ways in which this offence can be committed. Considering the aggravating forms of
this offence, this study focuses on its consequences, both the material and psychologically
traumatic ones, as these aspects are especially relevant to the process of legally classifying this
action as an offence or an infraction. The more so as the inquest requires close attention be paid
when there are underage children exposed to moral and physical pain. From a psychological point
of view, the inquest should prove the existence of ill will on the perpetrators part, also considering
in this case the time factor.
The study is an answer to the controversies existing in the practice of law, but also in the
literature, by clarifying the problems concerning the unity and plurality of the act of abandonment,
in classifying this offence as momentary or continuous, as well as establishing the moment when it
was committed in relation to the consequences of the illegal activities.
Because of the numerous existing controversies surrounding this offence, we consider that it
appears as a result of the shortcomings of our criminal legislation. For this reason we should
constantly adapt our legislation to the reality we live in, the more this reality tests us in the most
diverse circumstances. It is necessary to identify all sensitive issues which pose a problem in
practice and to solve them with suitable laws.

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Ed. Academiei Romane, 1992.
Brsan, C. Convenia european a drepturilor omului. Comentariu pe articole, vol. 1,
Drepturi i liberti. Bucureti: Ed. All Beck, 2005.
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(Bucureti, 2007): 94-104.
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Boroi, Al. and Gh. Nistoreanu. Drept penal. Partea general, ed. a IV-a revizuit conform
noului Cod Penal. Bucureti: Ed. All. Beck, 2006.
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Butiuc, C-tin. Infraciunea complex. Bucureti: Ed. All. Beck, 1999.

Cora, I., C-tin Aionioiae, A. Ungureanu and E. Sandu. Curs de criminalistic, vol. III,
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Academiei Romne, 1971
Dongoroz, V., S. Kahane, I. Oancea, I Fodor, N. Iliescu, C. Bulai, R. Stnoiu, V. Roca.
Explicaii teoretice ale codului penal al RSR, vol. IV. Bucureti: Ed. Academiei RSR, 1972
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special, vol I. Bucureti, 1994
Pavel, D. Infractiuni contra familiei din noul Cod penal. RRD nr. 10 (1969): 59
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edition revised. Bucureti: Ed. I.R.D.O., 2006
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Editura tiinific i Enciclopedic, 1977
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Drept nr. 9 (1969): 72
Vizitiu, Gh. Consideraii privind ncadrarea juridic n materia abandonului de familie
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Universitii Al.I. Cuza (Iai, 1875): 81
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1993.
ABOUT SOME NEW MODALITIES OF INDIVIDUALIZATION OF THE
PUNISHMENTS ACCORDING WITH THE NEW PENAL CODE
(LAW NO. 286/2009)
Versavia BRUTARU

Abstract
The individualization of the penal sanctions is a complex operation, and it is realized in
three different phases: The phase of incrimination of the penal offences, the phase of precise
determination of the punishment and the phase of the execution of the applied punishment.
Starting from this reality, the theory of the penal law makes a distinction between the three phases
of individualization that correspond with the three mention ones: the legal individualization, the
juridical individualization and the administrative individualization. Within each phases, the penal
law sanctions are individualized by the activity of particular authorities, within certain limits and
with certain methods.The main goal of the study is to present the new modalities of the punishment
individualization, adopted by assuming responsibility by the Romanian Government (Law nr.
286/2009). The study also presents other modalities of individualization of the punishment that
exist in German Penal legislation, French Penal Code, Portuguese Penal Code, Model Penal
Code, used as example by the Romanian Ministry of Justice, the initiator of the project. Along the
study, there are presented some of the issues that could appear within the normal application of
these new institutions.

Keywords: individualization, personalization, punishment, postponing the pronouncing of
the punishment, renunciation to pronounce a punishment, defendants obligations

Introduction
The new institutions that regulate the individualization of the punishment introduced by the
Law nr. 286/2009 (the New Penal Code) raise some issues, both theoretical and practical.
The study widely analyzes each institution and the issues that will rise, in our opinion,
during the application in practice of these institutions.
The Romanian legislator, having as inspiration other legislations, that contain these kinds of
institutions, had introduced many provisions, sometimes excessively clearly stated, and guided
towards a very dense regulations (for example: the institution of postponing the applying of the
punishment is excessively regulated by the Romanian legislator in comparison with the legisla-
tions that have been a model of inspiration).
As we will show within the study, our concern is the necessity of these new institutions,
regarding the fact of existence the institution of conditional suspension of the punishment, a
similar regulation with the one analyzed by us, and also the acquittal, provision that already exist
in the Criminal procedure Code.
In addition, we wanted to give a pertinent explanation of the expressions and the way the
legislator expresses some terms, many times not very clear or precise, from the juridical point of
Researcher, Institute of Juridical Research Acad. Andrei Rdulescu, Romanian Academy (e-mail:
[email protected]).
Versavia Brutaru 33
view. We take here into consideration the differentiations that have to be made between the
provided punishment, the applied punishment, and the executed punishment.
The study also contains explanations regarding the evolution of the individualization of the
punishment, the way that it is reflected on the future behavior of the offender, and the effects that
could result from a correct individualization of the punishment, regarding a certain type of
individual.

1. The issue of the individualization of the criminal punishment, including the rules or legal
criteria of the proceedings in this case, in order to obtain an efficient influence on the human
behavior, presumes the observing those individualization rules that contributes, one way or the
other, to an ordered development of the process, through which is getting to an adequate
adaptation of the criminal punishment, regarding the offences and the offenders person, and by
that, toward an exercising a benefic influence on the behavior of the offender.
In the doctrine
91
was underlined that the individualization of the punishment is that
operation through which the criminal punishment is properly adequate and proportional for each
offender, regarding the level of guilt and the real necessities for a just and useful repressive
reaction.
After the introduction of the educative measures and safety measures within the Penal code,
the expression individualization of the punishment wasnt considered proper anymore, in
relation with a feasible possibility and realization meanings for a repressive reaction; thus, it was
proposed that the expression individualization of the punishment to be widened
92
. The
expression proposed by the Romanian professor Vintil Dongoroz was the adaptation of the penal
sanctions, regarding their finality: reunifying the juridical order and the social defense. Before
professor Dongoroz, Ion Tanoviceanu suggested the use of the expression proportionalization of
the punishment, considering that the expression of the individualization is improper. In his
vision, the proportionalization of the punishment has to be made in such a way as to correspond to
the seriousness of the committed deed and, in the same time, to be able to ensure the juridical
order, to satisfy the disagreement sentiment of the collectivity and to protect the society; also,
regarding the proportionalization of the penal sanction it would have to take into account the
finality and the function of each repressive measure, and also, the offenders person
93
. The Italian
doctrine is using the expression la commisurazione della pena
94
and Raymond Saleilles
95
, who
elaborated the well known monograph on the individualization of the punishment, asserted that the
punishment must be adjustable to the nature of the one who is going to be applied to; if the
offender doesnt have a completely perverted nature, the punishment mustnt contribute to pervert
that nature; the punishment must help him to raise up; if the offender is beyond recuperation,
morally, the punishment must be very severe, to benefit the society, representing a radical measure
of protection an prevention.
Taking as model of inspiration the French Penal Code, the Romanian doctrine
96
suggested
using the expression personalization of the sanction, instead of individualization, in order to
express not only the idea of adaptation of the punishment in relation with the individuality of each
offender, but also, the adhesion of the offender to the punishment. The personalization of the penal
91
Vintil Dongoroz, Drept penal (Tratat), Bucureti, 1939, p. 670
92
Ibidem, p. 670-671
93
I. Tanoviceanu, Tratat de drept i procedur penal, comentat de Vintil Dongoroz i colab., ed. a II-a,
vol. III, Tipografia Curierul Judiciar, Bucureti, 1926, p. 99-105
94
G. Fiandaca, E. Musco, Diritto penale. Parte generale, Bologna, 2001, p. 725
95
Raymond Saleilles, Lindividualisation de la peine, 2-me edition, Paris, 1909, p. 47
96
O. Brezeanu, De la individualizarea la personalizarea sanciunilor, n R.D.P. nr. 1/2000, p. 49
sanction would mean, in other authors
97
opinion, a shifting, a reorientation of the legal criteria of
the sanction, from the seriousness of the offence to the person of the delinquent, the person
deprived from his liberty but not his dignity.
Using the expression personalization of the sanction would be more correct if we take into
account that the moral person, that can be sanctioned now, the adaptation of the sanction would
never be individualized (regarding the moral person) because the moral person is not an individual.
The individualization of the penal sanctions is a complex operation, and it is realized in
three different phases: The phase of incrimination of the penal offences, the phase of precise
determination of the punishment and the phase of the execution of the applied punishment.
Starting from this reality, the theory of the penal law makes a distinction between the three phases
of individualization that correspond with the three mention ones: the legal individualization, the
juridical individualization and the administrative individualization. Within each phases, the penal
law sanctions are individualized by the activity of particular authorities, within certain limits and
with certain methods. Regarding the legal force, the phases of individualization have a certain
hierarchy: the legal individualization is mandatory and it is imposed to the juridical and
administrative individualization; the juridical individualization is imposed to the administrative
individualization. So, the legal force of the different types of individualization are structured by
their mandatory force; first is the legal one, followed by the juridical one (that couldnt exist
without a legal individualization), and the administrative individualization (that couldnt exist
without a juridical individualization). The administrative individualization is realized by the
administrative authorities, when the punishment (restrictive of liberty) is applied, by adapting the
execution regime to each individual and his behavior in the imprisonment place. This type of
adaptation is regulated presently by the Law no. 275/2006, regarding the execution of the
punishments and the measures disposed by the juridical authorities, during the criminal trial, and
its a matter of execution Penal law branch.
2. The new recently adopted Penal Code, by assuming the Government responsibility (Law
no. 286/2009) has an objective the creation of a coherent legislative frame in criminal law,
avoiding the useless superposition of the in force existent regulations in the actual Penal Code and
special laws that contain incriminations; simplifying the substantial regulations in order to
maintain an Unitarian and a prompt application in the activity of the juridical authorities; assuring
the respect of the exigencies imposed by the fundamental principles of the penal law assigned by
the Constitution and the Treaties and Pacts regarding to fundamental human rights, signed by
Romania.; the transposition of the regulations adopted by the European Union within our national
legal frame; and, the most important, the harmonization of the Romanian material penal law with
the other member states penal system, as a premises of juridical cooperation in criminal law
matter, based on mutual trust and recognition,
Under the influence of this last orientation, the new Penal Code provides two new penal
institutions, regarding the individualization of the punishment: renouncing to apply the punishment
and postponing applying the punishment (Chapter V, section III and IV).
3. Renouncing to apply the punishment represent the right of the Court to definitively
renounce to establish and apply a punishment for a guilty person, regarding the offence, the
offenders character and his previous and after the offence behavior. By applying an advertisement,
the Court avoid the harm that would be done in case of pronouncing a punishment; in this case,
would do more harm than good to the offenders reeducation and social reintegration. This institution
97
Th. Papatheodoru, De lindividualisation des peines et la personalisation de sanctions, n Revue
internationale de criminologie et de police technique, nr. 1/1993, p. 109

Versavia Brutaru 35
is also regulated in German penal law (section 60 Penal Code), Portuguese Penal Code (article 60
and 74), French Penal Code (article 132-58), Switzerland Penal Code (article 53 and 54).
The conditions of renouncing to apply a punishment are provided by the article 80:
a) the seriousness of the offence must be very reduced, regarding the nature and the
extension of the consequences produced, the used means, the way and circumstances the offence
was committed, the motive and the purpose had in mind by the offender;
b) the Court must consider that regarding the offender person, his behavior previously
committing the offence, the efforts made to diminishing or eliminate the consequences of the
offence, and also his real possibility to straighten up, an application of a punishment would be
inopportune and could determine unwanted consequences regarding the offender person;
At letter a), the legislator considered both the objective conditions of the offence, but also
some subjective conditions, such as the motive and the purpose pursued by the offender in
committing the offence; the legal provision is granting the judge the possibility to easily decide,
taking into consideration the two categories of conditions, if it is the case or not to apply this
provision.
At letter b) the legislator was guided more toward some subjective conditions that have
bearing on the offender personality giving the judge the possibility to evaluate better the nature
and the quantum of the applied punishment, taking into consideration the mentioned conditions.
Within the cited section two, there are shown the conditions that must be respected in case
the Court decides to renounce pronouncing the punishment. So, the Court cannot pronounce the
renunciation to the punishment if:
a) the offender was previously convicted for an offence, excepting the cases provided by the
article 42, letter a) and b) or for which (offence) had intervened the rehabilitation or the period
provided for rehabilitation was fulfilled;
b) the offender beneficiated of this kind of individualization of the punishment within the
last two years, previously the date of committing the actual judged offence;
c) the offender had been avoiding criminal prosecution or the criminal trial, or tried to
shatter learning the truth or identifying and criminal prosecution of the participants;
d) the punishment provided by the law for the committed offence is the imprisonment larger
than 5 years.
In case of concurrence offences, the renouncing to apply a punishment may be pronounced
for each concurrent offence, if there are fulfilled the provisions stipulated by the law.
The Court, in applying this disposition, that has the character of an advertisement, stipulates
within the grounds that sustained the judgment, what determined the Court to renounce to apply a
punishment and compel the offender attention regarding his future behavior and the consequences
if he will commit another offence. In case of concurrent offences, a single advertisement is
applied. The effects of the renunciation to apply a punishment consists in non existing, in the
future, for the offender, of any interdictions, incapacities or decays from any legal rights that could
result from the offence committed. The offender is not absolved of the civil obligations provided
by the judgment and neither from the execution of the safety measures (measures that have another
juridical nature than the punishment; they are pronounced in order to eliminate a dangerous
situation, produced by the offender).
4. Another modality of individualization of the punishment provided by the new Penal Code
is postponing the application of the punishment (section 4).
The Court could pronounce the postponing and establish a probation period if there are
fulfilled the following conditions:
a) the established punishment, including the case of concurrence offences, is a fine or, at
most, two years of imprisonment;
b) the offender was never previously convicted to imprisonment, excepting the situations
provided by the article 42, letter a) and b), or for the offence committed intervened the
rehabilitation, or the period established for rehabilitation was fulfilled;
c) the offender asked to do work for the benefit of society, unpaid;
d) regarding the offender person, his previous behavior committing the offence, the efforts
made by the offender to diminish or eliminate the consequences of the offence, and also his
possibilities to straighten up himself, the Court appreciate that the immediately apply a punishment
is not necessary; it is however necessary for the offender to have a supervised conduit for a
determined period of time;
5. We observe the presence of both objective criteria (those referring to the offence,
punishment established by the Court), but also subjective criteria, more numerous in this case
98
.
The subjective criteria are more numerous in this case of individualization because the person of
the offender is to be supervised on a period of time (two years), period within he must respect the
supervise measures and to execute the obligations imposed by the Court. We mention that the
Probation Service is in charge with the offender supervision within the period of 2 years (period
that starts from the date of the conviction became definitively). The Probation service has the
obligation to seizure the Court in both cases that the offender is not respecting the obligations
imposed, or, in contrary, he is respecting the obligations imposed by the Court. The obligations
that must be respected may suffer modifications during the execution. So, if during the probation
period have intervened new grounds that justify either the imposing of new obligations, increasing
them, or otherwise diminishing the existent execution conditions, the Court will pronounce the
modification of the obligations accordingly, in order to assure the supervised person increased
chances of rehabilitation. Therefore, the Court, when is ascertain of this facts, is obligated to
modify the offenders obligations. The compulsoriness of the Court is the result of using the
expression the Court decides instead of the Court may decide, by the legislator.
The Court decides the discontinuing of the execution of some of the imposed obligations,
when its appreciated that the maintaining of these obligations is no longer necessary.
Also the Court may revoke the postponing of the application of the punishment if during the
probation period, the offender, with bad faith, doesnt respect the supervision measures or he is not
98
a) to present himself to the Probation Service, at certain fixated dates;
b) to receive visits of the probation officer assigned to his supervision;
c) to announce, beforehand, if he is changing the place of living, any travel that exceeds five days and his return;
d) to communicate changing the working place;
e) to communicate information and documents that permit the control of his meaning of existence;
2) The Court may impose to the offender to execute one or more of the following obligations:
a) to take a training course, a professional qualification course;
b) to work unpaid, for the benefit of the community, on a period of 30 to 60 days, respecting the conditions
imposed by the Court, except the case his health doesnt permit that. The number of daily work hours are
established by the Law of punishment execution;
c) to attend to one ore more social reintegration programs, developed by the probation service, or organized
in collaboration with the communitarian institutions;
d) to submit himself to the control measures, treatment or health care;
e) not to communicate with the victim or its member family, with the persons who participated with him in
committing the offence, or other persons named by the Court, or not to be in the proximity of those persons;
f) not to be in certain places or at certain sports, cultural meetings, or other public meetings, established by
the Court;
g) not to drive certain vehicles established by the Court;
h) not to detain nor use or wear any kind of weapons;
i) not to leave the territory of Romania without the approve of the Court;
j) not to occupy or exercise the profession, activity or the position that he used in committing the offence;

Versavia Brutaru 37
executing the imposed obligations. In this case, the Court revokes the measure and decides the
application and execution of the punishment. In case when, until the expiring the period of
supervision, the offender is not fulfilling totally the civil obligations established in the judgment,
the Court revokes the postponing and decides the application and execution of the punishment,
excepting the case when the offender proves that he had no possibility to fulfill those obligations.
If after the postponing the application of the punishment, the supervised person commits a new
offence, intentionally or with praeter-intention, discovered by the authorities within the probation
period, and for which a Court pronounced a conviction, even after the expiration of the probation
period, the Court revokes the postponing and decides the execution of the punishment. The applied
punishment as a result of the revoking the postponing and the punishment applied for the new
offence is calculated in accordance with the dispositions regarding the concurrent offences. If the
subsequent offence is committed without intention, the Court may maintain the disposition
regarding the postponing of the application of the punishment.
In this case we observe that the Court has the faculty and not the obligation to maintain the
disposition of postponing the application of the punishment. The Court can repeal the postponing
of the punishment if during the probation period it is discovered that the person under probation
had committed a new offence, until the judgment that disposed the postponing remained definitive,
even after the expiration of this period, offence punished by prison, the postponing is repealed. In
this case it will be applicable the dispositions regarding the concurrent offences, recurrence
offences or intermediary plurality. In case of concurrent offences the Court can dispose the
postponing of the application of the resulted punishments, if there are fulfilled the conditions
provided by the article 83 of Penal Code. If the postponing will be pronounced, the probation
period is calculated from the date that the previously judgment remained definitive.
The effects of the postponing of the applying of the judgment are: the punishment is not
applied and the offender is not submitted to any interdiction, declined from any civil rights or
incapacities that could be a result of committing the offence, with the condition that the person
doesnt commit again another offence until the expiration of the probation period, or it wasnt
pronounced the revoking of the postponing or it wasnt discovered a cause for annulations. The
postponing of the application of the punishment doesnt produce any effects on the safety measures
and the civil obligations established by the judgment. We observe that the effects of this type of
individualization are identical with the ones provided by the article 80-82 (renouncing to the
punishment) with the mention that, speaking about a postponing the punishment is no longer applied.
6. In relation with the issue mentioned above, there are more problems that must be debated.
The jurisprudence, so far, never pointed out the necessity of introducing of these new institutions.
We ask ourselves, what real problems would resolve these dispositions. The acquittal (discharging
the trial) could resolve the problem of renunciation to pronounce a punishment. The provisions
regarding the institution of the postponing the application of the punishment, could be satisfied by
the institution of the conditioned suspension of the execution of the punishment. It is true, that are
different expressions; regarding the postponing we use the expression established punishment
and regarding to conditioned suspension we use applied punishment, but, the question that is
rising is when the individualization of the punishment is happening? When it is established, when
it is applied or when it is executed? In the case of postponing, the legislator uses the expression
applied, but for the Court to be able to renounce or postpone the application of the punishment,
it is necessary that the punishment to be already established. Maybe the following expression was
more accurate postponing the execution of the punishment because the punishment is already
established, in conformity with the provisions pointed out at letter a) where the expression used is
the established punishment.
The French authors
99
make a more accurate distinction regarding the renouncing and
postponing the pronunciation of the punishment, using the effects of these institutions; the
postponing presumes the pronunciation of the punishment; the execution of the pronounced
punishment is renounced to; the postponing of the pronunciation has an effect only on the
individualization of the punishment, this individualization could be followed by a pronunciation, if
the offender doesnt respect the conditions imposed by the Court.
7. Comparative law. According to the German Penal Code, (Title V, section 59, 60, Absehen
von Strafe), The Court renounce to the punishment when the consequences of the offence are so
serious for the offender, that a sentence to prison would be a disaster. This disposition is not
applicable if the offender was previous convicted for an offence to prison for more than a year. The
criteria for the renunciation of the punishment could be: the seriousness of the offence is much
reduced, the level of guilt is very low, or, other reasons
100
.
According to the French Penal Code, In the case of a misdemeanor or, except in relation to
the matters considered under articles 132-63 to 132-65, and in the case of a petty offence, the
court, after finding the defendant guilty and ordering, if need be, the confiscation of dangerous or
noxious objects, may either exempt the defendant from any other sentence, or defer sentence in the
cases and pursuant to the conditions set out in the following articles. At the same time as it decides
on the defendant's guilt, the court rules, if necessary, on any civil claim for damages. An
exemption from penalty may be granted where it appears that the reintegration of the guilty party
has been achieved, that the damage caused has been made good and that the public disturbance
generated by the offence has ceased. A court granting an exemption from penalty may rule that its
decision shall not be registered in the criminal records. Exemption from penalty does not extend to
payment of the costs of the proceedings. A court may defer sentence where it appears that the
reintegration of the guilty party is in the process of being achieved, that the damage caused is in
the process of being repaired, and where the public disturbance generated by the offence will
cease. In this case, it determines in its decision the date when it will pronounce sentence.
A deferment may only be ordered where the defendant, in the case of a natural person, or his
representative, in the case of a legal person, is present at the hearing. At a reconvened hearing, the
court may either exempt the defendant from penalty, or impose the penalty set out by law, or
further defer pronouncement of sentence pursuant to the conditions and according to the terms set
out under article 132-60. The decision with respect to the penalty must be made no later than a
year after the first deferment decision.
At the reconvened hearing the court may, taking into account the offender's behavior, either
exempt him from penalty, or pass sentence as set out by law, or further defer sentence pursuant to
the conditions and according to the terms of article 132-63.
The decision regarding the penalty must be made no later than a year after the first
deferment decision.
According to the Portuguese Penal Code (articles 60 and 74), an admonition, is pronounced
by the Court if: the agent ought to be sentenced to a fine of a measure not superior to 120 days, the
court may limit itself to pronounce an admonition.
Admonition only takes place if the damage has been repaired and the court concludes that,
doing so, the aims of punishment will be accomplished in an appropriate and sufficient way;
As a rule, admonition will not be used if the agent, during the 3 years prior to the act, has
been sentenced to whatever penalty, including admonition.
99
F. Desportes, F. Le Gunehec, Le nouveau Droit penal, tome 1, Droit penal general, Septieme editition, Ed.
Economica, Paris, 2000, p. 820-823
100
Hans Jescheck, Lehbruch des Strafrechts, Alemeiner Teil, Duncher und Humbolt, Berlin, 1988, p. 769-773
Versavia Brutaru 39
Admonition consists of a solemn oral censure made in session by the court to the agent.
Article 74 provides the Dispensation of penalty; When the crime is punishable with
imprisonment not superior to 6 months, or only with a fine not superior to 120 days, the court may
declare the defendant guilty without applying penalty if:
a) The unlawfulness of the act and the guilt of the agent are minute;
b) The damages have been repaired;
c) Reasons of prevention do not oppose to the dispensation of penalty.
If the judge has reasons to believe that the damage reparation is about to happen, he may
adjourn the decision for a reconsideration of the case within 1 year, on a day which will be
immediately fixed.
When another rule allows the dispensation of penalty on a facultative nature, this will only
take place if the case fulfils the pre-requisites stated in the sub-headings of number one above.
According to the Model Penal Code
101
(U.S.A), the Court can withhold the sentence of
imprisonment and placing the defendant on probation. Subsection two sets forth eleven factors that
should be accorded weight in favor of withholding a sentence of imprisonment. The list is not
exclusive and the presence or absence of any of the factors is not meant to conclude the matter.
The Court is directed not to impose imprisonment unless the circumstances of the case support an
opinion that an imprisonment is necessary to protect the public because at least one of the three
specified criteria is satisfied
102
. Since these three criteria are exhaustive of the factors that may
justify imprisonment, a Court may not rely on some independent consideration for sending an
offender to prison. In deciding whether to sentence an offender to prison, the Court, is required by
subsection (2) to take account of the enumerated grounds that favor an alternative disposition.
Subsection (2) does not, however, preclude the court from considering other reasons against an
imprisonment sentence. A major purpose of this is to ensure that imprisonment sentence is not
routinely imposed. The Subsection 3 is designed to suggest that is an additional judgment called
for in those cases where a decision in favor of withholding a sentence of imprisonment is made,
namely whether the supervisory regime of probation should be invoked or whether some other
form of disposition is more appropriate. The other sanction to be considered includes a fine and
suspension of imposition of sentence. The Model Penal Code moves within the older tradition in
providing for a suspension of the imposition of sentence rather than for a conditional discharge.

Conclusions
The new Penal code, adopted in 2009, contains many new substantial penal law regulations.
The aim of the study was only to clarify some of the issues that could rise up, for now, only
theoretically.
It remains to be seen what other problems will be raised by the practitioners, after the new
penal code will be enforced. This study refers to only a part of the vast institution of
individualization of the punishment, with a special view on the new institutions.
The opinions expressed in the Romanian doctrine regarding the problems that may be solved
by these new regulations are different; the regulation regarding the renunciation to apply a
101
Model Penal Code and Commentaries, part I, general provisions, The American Law Institute,
Philadelphia, Pa, 1985
102
Under the introductory part of subsection (1), the Court may not sentence an offender to prison unless it
is of the opinion that his imprisonment is necessary for the protection of the public. If the finding or one or three
specified factors does lead the Court to have that opinion, it would, of course, impose a sentence of imprisonment.
But it is possible that the court will find one of the three specified factors and yet not conclude that imprisonment is
necessary to protect the public. Then it is not authorized to impose that sentence.
punishment may be considered, by some authors, as an unpunishable cause with general
application; after other authors, a modality of replacing the penal responsibility, because the
renunciation to apply a punishment does not affect the character of the offence, the deed is still a
crime, whether it is applied a punishment or not.
The legislator preferred to let the Court to decide if a punishment will be applied or just a
warning.

References
Brezeanu O., De la individualizarea la personalizarea sanciunilor, n R.D.P. nr. 1/2000, p. 49
Desportes F., F. Le Gunehec, Le nouveau Droit penal, tome 1, Droit penal general, Septieme
editition, Ed. Economica, Paris, 2000, p. 820-823
Dongoroz Vintil, Drept penal (Tratat), Bucureti, 1939, p. 670
Fiandaca G., E. Musco, Diritto penale. Parte generale, Bologna, 2001, p. 725
Jescheck Hans, Lehbruch des Strafrechts, Algemeiner Teil, Duncher und Humbolt, Berlin,
1988, p. 769-773
Model Penal Code and Commentaries (Official Draft and Revised Comments), General
provosions, Philadelphia, The American Law Istitute, 1985, p. 221
Papatheodoru Th. De lindividualisation des peines et la personalisation de sanctions, n
Revue internationale de criminologie et de police technique, nr. 1/1993, p. 109
Saleilles Raymond, Lindividualisation de la peine, 2-me edition, Paris, 1909, p. 47
Tanoviceanu I., Tratat de drept i procedur penal, comentat de Vintil Dongoroz i
colab., ed. a II-a, vol. III, Tipografia Curierul Judiciar, Bucureti, 1926, p. 99-105
Ada Hurbean 41

LEGAL NATURE OF THE INDIVIDUAL EMPLOYMENT CONTRACT
Ada HURBEAN

Abstract
Obviously, the juridical act based on which a person works for and under the authority of
another person in exchange of a salary can be only an individual employment contract, as the
Labour Code specifies. So, in this case we are talking about a contract which should be governed
by the rules of this matter as the common civil law stipulates, including the freedom of negotiation
and concluding of this legal act. Unfortunately, on the present Romanian labour market the labour
contract is transformed into a contract of adhesion, imposed by the law. This reality, which cant
be ignored, distorts the legal nature of the labour contract and the free will principle which must
be respected during the negotiation and conclusion of the individual employment contract.

Keywords: individual employment contract, negotiation, free will, equal positions before
the law of parties, subordination relationship

The individual employment contract is actually considered, inclusively by its legislator, the
main institution of the labour right, of the individual labour right, because the Labour Code
establishes it about a third of its regulations (from Article 10 to Article 107 of the total 298 items).
Consequently, as it is defined by Article 10 of the Labour Code and by the professional legal
literature, the individual employment contract is the contract (agreement)
103
under which a natural
person, named employee, undertakes to perform work for and under the authority of an employer,
natural or legal person, in exchange for a remuneration called wages and with ensuring the
appropriate conditions for carrying out and maintaining work safety and health. It is obvious that
we find ourselves in the presence of a contract with all the specifications of this bilateral legal act,
ruled by the principle of free will. Even more, the individual employment contract is a contract
named, synallagmatical (the parties obligations are mutual, meaning that each parties obligation
represents the legal cause of the co-contractors obligation), for valuable consideration,
commutative, consensual (the form demanded by Article 16 of the Labour Code is only ad
probationem), intuitu personae (it is concluded in the view of employees training, skills and
qualities, but also in the view of employers specific activity) and with successive fulfilment (both
parties provisions are done in time and not all at once).
Generally, the individual employment contract may have just two parts: the employer,
natural or legal person and the employee, always a natural person. By exception, there are certain
Ph.D Lecturer, Law and Social Sciences Faculty, 1 Decembrie 1918 University of Alba Iulia.
103
It is considered that the legal definition of the individual employment contract has a deficient character,
because, in the Romanian law, the labour terms and those of convention are synonymous. So that more appropriate
wording would be the contract... ... is the convention instead of the contract ... is the contract, in order to avoid
the idem per idem character of the definition - in this sense Al. iclea, Acte normative noi - Codul muncii, in Revista
Romn de dreptul muncii no. 1/2003, p.8.
We consider that the definitions need of legal rectification is not an imperative one, given the fact that the
deficiency is not a fund one, but strictly a form one. But on the other hand, it should be supplemented by the
employers obligation to provide the necessary conditions to conduct in good condition the work, and not only the
obligation to pay wages.
situations where, as employers appear more persons, as it is the case of associative forms to
practice the professions of lawyer, notary or physician. In this cases, the labour contract is
concluded under the name of all associates, following that the employee subordinates to all these.
The same solution is to be applied for the domestic staff too, in the sense that, even if the contract
was signed by one spouse, the person hired will subordinate to the other spouse too.
Contrariwise, not only the individual employment contract supposes as object the provision
of work. Work can be done under a service contract, but what distinguishes the two types of
contracts is that in the case of the employment contract, the work is seen as a process that takes
place over time in a well-determined place, while in the case of the service contract, the provider is
hired to achieve a particular result
104
. In this context, it must be specified that the employees
obligation resulting from the individual employment contract is an obligation to make, but to
which are not applicable the provisions of Article 1077 of the Civil Code, which allow to the
creditor, in case of non fulfilment, to execute him, on his account, the debtors obligation. The
provisions of Article 1075 of the Civil Code, according to which each obligation to make changes
in indemnifications, in case of non fulfilment, are not applicable in this context too. But, it is
possible to include in the labour contract a stipulation of an objective, leading to other
consequences regarding the employees qualification, in terms of its object. Thus, we are in the
presence of two obligations of the employee: an obligation of means, which supposes the
submission of diligences to achieve the goal and an obligation of result, which absorbs the first,
consisting in achieving the proposed object
105
.
Returning, we must not forget the fact that only the work performed under an individual
employment contract gives the employee, on full right, seniority, with all consequences arising
there from.
Finally, what individualizes the employment contract in relation to other types of contracts,
what could have the same object or a similar object, are its elements. Thus, the elements of the
individual employment contract are: the labour supply, the payment of the salary and the
subordination relationship. Some authors associate with these three elements the time
106
element
too, but we consider that the latter is not likely to be part of the elements of the contract in
question. Without insisting on the first two, the labour supply and payment of the wages, we may
say that they represent the two characteristic and mutual provisions of the synallagmatical
contract, but the subordination relationship is the item that confers individuality to the contract and
a special status among the other types of contracts. The existence of this item results clearly from
the legal definition of the individual employment contract; even if the legislator did not use the
term of subordination, preferring that of authority, it has not been made a change of view,
because, the term authority designates the power, the employers right to give mandatory
provisions. Therefore, the subordination relationship between the employer and the employee
appears during the performance of the labour supply of the latter. So, it can not be concluded an
individual employment contract between the sole associate of a limited liability company and the
company concerned, as the essential characters of the individual employment contract are lacking:
legal subordination and bilateral negotiation of the contract.
In this particular case, the subordination refers to the work process and it manifests, by the
employers right to give orders and provisions to the employee and to control his work. Ensuring the
employers authority is achieved through its recognized provisions, under the Article 40 paragraph 1
of the Labour Code, respectively the normative power, the organizational and disciplinary one.
104
Al. Athanasiu, M. Voloniciu, L. Dima, O. Cazan, Codul muncii. Comentariu pe articole, p. 35.
105
In this sense O. Macovei Coninutul contractului individual de munc, Edit. Lumina Lex, Bucureti,
2004, pp. 65-66.
106
V. Barbu, Dreptul muncii. Curs universitar, Edit. Naional, Bucureti, 2003, pp. 91-92.
Ada Hurbean 43
Thus, the subordination, as item of the individual employment contract, may be both legal,
meaning the existence of the authority, the employers power of directing the employees activity,
to control and sanction him disciplinary, and economic too, since the employer provides the
livelihoods of the employee who, in principle, has no other income.
The question arising is if the existence of this subordination relationship transforms the
individual employment contract into a legal act of adhesion or if it justifies this thing? To answer
to this question we must, firstly, distinguish between two important moments: the negotiation and
the conclusion of the labour contract moment and its execution moment.
During the moment of the negotiation and the conclusion of the individual employment
contract the parties involved are on equal positions before the law.
The wills agreement always requires the conciliation of two or more contradictory legal
interests
107
. Thus concluding the contract often requires a period of negotiations, by considering
the interests of each party. So, the negotiation can lead or not to the conclusion of a contract. The
same situation is found in the case of the individual employment contract too.
Thus, the negotiation of the labour contract represents one of the most important stages in
forming the wills agreement, importance clearly underlined by the legislator too, who, in Article
17 Labour Code, establishes that the employer has the obligation to inform the selected person for
employment regarding the essential clauses he intends to introduce in the contract, clauses further
enumerated in paragraph 2 of the same article. We believe that the laws wording left room, in
practice, for interpretation within the meaning that the clauses of the labour contract are imposed.
Moreover, legally developing a framework Model of individual employment contract by Order no.
64/2003, amended by Order no. 76/2003, does nothing else but to support this thing and to strive
to defeat the principle of freedom and autonomy of will that should govern both the negotiating
and conclusion moment of the labour contract. For this reason, most times this contract is
transformed into an act of adhesion.
Consequently, the content of individual employment contract is considered to have a double
juridical nature, legal and contractual, in juridical literature
108
. Legal part is referring to the rights
and obligations from Labour Code and other bills which regulate the labour relations. This legal
part, we consider to be important especially regarding public authorities and institutions workers,
because their salaries, recreation leave and the amount of recreation leave are established by
special laws.
The contractual part of the contract, on the other hand, is determined by the free will of the
parties, but only if they respect the legal limits.
We believe, that to impose directions to negotiate the labour contract should not make this
contract into an impose one, because we believe that the intention of law wasnt to modify the
equal position of the parties in negotiating and concluding the labour contract.
We must specify that, the appearance and the use, more and more intensive, of the
adhesion contracts has led to the reconsideration of the limits of the will autonomy principle of the
legal deeds. If in the case of the classic contract the parties mutually agree over its content and
effects, in the adhesion contracts only one party establishes the contractual clauses, the other party
being just free to join or not the contract developed under these conditions
109
. The fact that these
107
Flour, J.-L. Aubert, Droit civil. Les obligations. Lacte juridique, vol. I, Paris, 1975, p. 404.
108
See, Al. Ticlea, Tratat de dreptul muncii, second edition, Ed. Universul Juridic, 2007, p. 429-431.
109
V. Ptulea, Principiul libertii contractuale i limitele sale, in Dreptul nr. 10/1997, p. 24. Regarding the
contracts with clauses imposed only by one of the parties, the Contract Law of the Popular Republic of China
stipulates the following: if a contract contains standard clauses (meaning contractual provisions established before
concluding the contract by one of the parties, for repeated use), the party that established these clauses must comply
with the principle of good faith in prescribing the rights and obligations of the other party and must draw the
contracts are and may become a legal limitation of the principle of will autonomy it is noticed
from the regulation of the adhesion contracts too, in the new Civil Code, which in Article 1175
states: The contract is one of adhesion when its essential clauses are imposed or when they are
drafted by one of the parties, for this one or following his instructions, the other party having
merely the obligation to accept them as such.
Due to the new limitations of the principle of contractual freedom, which tend to deny the very
existence of the principle, we believe that it is not irrelevant to take into consideration the possibility
of legal and institutional isolation of those types of contracts and their understanding as a distinct
reality from the contractual, classical one. This is done precisely to protect and perpetuate, not only
theoretically, the principle in question. But, on the other hand, the proliferation of these types of
contracts it may seem that they represent one of the symptoms of defeating the principle of will
autonomy by another socio-economical phenomenon and finally a legal one, that of dirigisme
110
.
Actually, we are talking about the strong intervention of the state in the economy, reflected in the
enactment of some new legislation or amending the existing ones, or by sanction of the law of the
new interpretations given to some oldest legal institutions
111
.
Another manifestation of dirigisme is to broaden the concept of public order, because, if in
the previous phase (that of domination of the principle of will autonomy) this concept was limited
to the political and moral area, in principle, now, the concept includes the economic public order
too, not only the national one, but the European too, in the context of creating and expanding the
European Union. Moreover, the notion of public order extends over some social aspects too,
creating the social public order, which designates some measures taken by the State regarding the
regulation of the labour contracts and leasing of estates. Also, it must not be omitted the aspect that
the States intervention in the contractual domain lead to the restriction of the binding force of the
contract, either because sometimes its non-compliance is allowed, or a performance in other terms
than those originally established by the parties
112
.
Returning to the employers obligation of information, we consider that, in fact, it has the
significance of an offer to conclude. In other words, in the content of the employment contract,
which is concluded later, it will be included the same elements, but their concrete quantum may
differ as a result of the parties negotiation. If any modification was not allowed, the information
would coincide with the implementation agreement of the parties, which would deprive the
obligation of information of any content and would violate the freedom of the parties to negotiate
the terms of this contract.
113
As it is mentioned by the legal text too, the negotiation must cover at
least the following items: identity of the parties; the workplace or, in the absence of a permanent
attention to the latter, in a reasonable manner, on certain clauses, such as are those by which the liability of the party
is excluded or limited and, also, this party is obliged to explain to the other party the contracts terms when asked
(Article 39).
110
Otherwise, a new term was created, that of contractual dirigisme, by L. Josserand, in Les tendances
actuelles de la thorie des contrats, in R.T.D. civ., 1937, pp. 1-30.
111
The appearance of the contractual dirigisme is due to the fact that nowadays the economic activity is
dominated by the existence of large companies or groups of companies, with a great economic power, whose
interests are focused on increased speed and suppleness of the economic circuit. The State, the one that organizes
the economic activity, even in a broad sense, by creating the legislative framework, has perceived and finally
enacted the interests of those participants to the economic circuit. All these lead to the removal, more or less, of the
principle of will autonomy, which corresponded to the modern period, when the economic activity was left, largely,
at the private initiatives will and which corresponded, in fact, to the economic liberalism (C. Sttescu, C. Brsan,
op. cit., pp. 17-19).
112
In this regard, see A. Hurbean, Viciile de consimmnt, Edit. Hamagiu, 2009, p. 31 and following.
113
Similarly, Al. Athanasiu, I. Dima, Regimul juridic al raporturilor de munc n reglementarea noului Cod
al muncii, in Pandectele romne, nr. 4/2003, p. 258.
Ada Hurbean 45
workplace, the possibility of working in several places; the headquarters or, as appropriate, the
domicile of the employer; the position / occupation according to the Romanian Classification of
Occupations or other regulatory documents and the job description; the job-specific risks; the date
when the contract takes effect; in the case of an employment contract of limited duration or of a
temporary employment contract, its respective length; the length of the leave the employee is
entitled to; the conditions under which the contracting parties may give notice and its length; the
basic wages, other components of earned income, as well as the payment frequency for the wages
the employee is entitled to; the normal length of work, expressed in hours per day and hours per
week; the reference to the collective labour agreement governing the working conditions of the
employee; the length of the probationary period. Of course, nothing stops the parties to negotiate
on other clauses they want to stipulate in the future contract. Otherwise, the Labour Code itself
regulates four of the additional clauses (the clause on vocational training, non-compete clause,
mobility clause and confidentiality clause).
According to Article 18 paragraph 1 of the Labour Code when the employee should perform
his activity abroad, the employer has the obligation to communicate him information regarding the
following aspects too: the length of the work to be performed abroad; the currency of wages
payment, as well as the payment methods; the benefits in money and/or in kind related to the
activity performed abroad; he climatic conditions; the main labour law regulations in that country;
the local customs whose breach would endanger his life, freedom or personal safety and the
employee repatriation conditions.
Because we are at a stage prior to the conclusion of the individual employment contract, the
employers obligation of information must be done between the time of selection the candidate,
future employee and that of employment, without being relevant if the parties finalize the
negotiations concluding a contract or not. At this precise moment too, as the legal texts establish,
between the parties may occur a confidentiality contract. As stated in the legal literature
114
, the
confidentiality contract is completely separate from any employment contract; it is not confused
with the confidentiality clause either, which can be inserted in such a contract. Taking into
consideration the legal wording, this is a contract that generates only unilateral obligations for the
employee or future employee, respectively the obligation to keep the confidentiality of the
information received. Still, we believe that this contract could contain mutual obligations, based on
Article 29 paragraph 3 and 4 of the Labour Code. It could stipulate the employers obligation to
keep the confidentiality of the information he receives from the other party, regarding, for
example, the professional skills or the information taken from his former employers.
If the obligation of information has the role of an offer to conclude, than the acceptance of
the labour offer has as consequence the contracts formation, which means that the employer is no
longer entitled to withdraw his offer. Thus, an eventual withdrawal shall have the legal value of an
illegal dismissal. The provisions of the Common Law, regarding the valuable forming of the
contracts by offer and its acceptance, are fully applicable to the individual employment contract
too. So, if the offer is the proposal made by a person to another person, to conclude a contract, the
acceptance represents a manifestation of the persons will to conclude a contract as provided in the
offer addressed to him for this purpose. The acceptance can only be pure and simple, because
formulation of some reservations, conditions or modifying proposals has the nature of a
counteroffer, and it is usually intentionally, but it can be made tacitly too. In all cases it must be
unequivocal. The acceptance, made valid before the offer has been revoked or has been lapsed, has
as effect the conclusion of the contract it refers too. The acceptance intervened subsequently is late
114
R. Dumitriu, Contractul individual de munc, prezent i perspective, Edit. Tribuna Economic, Bucureti,
2006, p. 88.
and does not produce any effect; but if the offer was mindless revoked before the expiry of the
express or tacit term of acceptance, the acceptance interfered within the limits of this term shall
entitle the acceptant at the repairing of the prejudice caused by the non-conclusion of the contract
following the offers abusive revocation.
The contractual freedom, the wills autonomy of the parties during the negotiation and the
conclusion of the individual employment contract is limited, on one hand, by the rules of the
public order, morals and mandatory rules general limits to all contracts, and, on the other hand,
by the provisions of the applicable collective labour agreement and Article 38 Labour Code. Is
obvious that the negotiation freedom of the individual employment contract is much more limited
compared with that of the civil contracts, reason for witch it was stated that Article 38 Labour
Code represents a fundamental mark of delimitation between the labour law and the civil law.
115

Without insisting too much on the general legal limitations of the will autonomy, we may
say that by public order it is understood a set of rules and principles that express the essential legal
organization of a particular human society, at a certain time. Regarding the good manners, it is
underlined
116
that these represent nothing else but moral aspect of the public order, in its
traditional acceptance of political order, in fact, a set of ethical rules, well-known and accepted
therefore by the societys members. Just that this concept, as well as that of public order, can not
be ever general applicable to the human society and it is in a continuous evolution.
117

The limitations imposed especially to the contractual freedom by the labours legislation
refer, as we have already said, mainly at the provisions of Article 38 Labour Code, which include
those referring to the collective labour agreement too. Specifically, corroborating Article 11 and 38
Labour Code, any clause from a convention or unilateral act, by which an employee would consent
to a limitation or waiver of rights guaranteed by law or to those negotiated through the collective
agreement or individual employment contract, is touched by absolute nullity.
According to Article 8 of the National Collective Agreement, the employees rights
stipulated in its content can not represent the cause of reducing other collective or individual rights
that were established by the collective agreements concluded at branch level, groups of units and
units before the conclusion of the National Collective Labour Agreement.
In the situations in which, regarding the rights deriving from the National Unique Collective
Labour Agreement, it intervenes more favourable provisions, these will be lawfully a part of the
mentioned contract.
Also, the signatory parties of the National Unique Collective Labour Agreement assumed
the obligation that, during the period of application of this collective labour agreement, they
should not promote or sustain draft laws whose adoption would lead to the reduction of the rights
arising from the collective labour agreements, regardless the level they were concluded to.
Consequently, as noted in the legal special literature
118
, according to the applicable legal
texts there is no legal regime difference between the established rights, edicts, recognized or
guaranteed by legal or conventional means (by individual or collective negotiation), because the
employer can not waive any of his rights, whatever its origin.
The motivation of this interpretation of Article 38 Labour Code is found in the protection of
the employees rights; in fact, it was shown
119
that these legal provisions represent protective
measures for employees, destined to assure the free exercise of rights and legitimate interests to
which they are entitled to, under the employment relationships, in order to protect them from any
abuses or threats from employers.
115
A. G. Uluitu, Aspecte privind aplicarea art. 38 din Codul Muncii, in R. R. D. M nr. 1/2009, p. 42.
116
J. Ghestin, op. cit., p. 87.
117
In this regard, see A. Hurbean , op.cit., p. 30.
118
I.T. tefnescu, Consideraii referitoare la aplicarea art. 38 din Codul muncii, in Dreptul nr. 9/2004, p. 81.
119
The Constitutional Court, decision no. 494/2004, the Official Gazette, Part I, no. 59 of January 18, 2004.
Ada Hurbean 47
By another decision of the Constitutional Court
120
it is shown that Article 38 of the Labour
Code does not infringe the principle of the contractual freedom, because this is not a constitutional
principle and, anyway the contractual freedom knows reasonable limits imposed by reasons of
protection of some private and public interests. In this context, as it is further specified, the
legislative provisions in question represent mandatory rules, ensuring thus social protection
measures for persons in disadvantaged economic position. Also, the provisions of Article 38 of the
Labour Code do not prejudice to the provisions of Article 16 paragraph 1 of the Constitution of
Romania, as they only seek to ensure the equality between the contractors, unequal, ab initio,
regarding the financial and economic potential. The provisions of the Article 38 do not contravene
to the provisions of Article 16 paragraph 2, 3 and 4, Article 30, 40 and 45 of the Romanian
Constitution, since their area of impact is totally different, which excludes the possibility of
collision between them.
In other words, the legal provisions in discussion should be understood in the sense that the
legislator tries to balance the position of the two parties of the individual employment contract,
given that, after its conclusion, the employee is subordinated to the employer, his position being
one of inferiority. Just that, the provisions of Article 38 corroborated with those of Article 11 of
the Labour Code refer both to the moment of the negotiation and conclusion of the individual
employment contract when the parties are on positions of legal equality.
In fact, Article 38 of the Labour Code is in obvious contradiction with the current socio-
economic reality. So, as long as we consider that we live in a society based on the objective rules
of the market economy, one of the principles of the employment right imposes to be the principle
of negotiation, and not the promotion of the legal provisions which violate and restrict this
principle. We arrive, thus, in the situation in which, seeking the employees protection from an
eventual abusive attitude of the employer, we defend the employee against his own will.
121

Thus, by the application ad literam of these legal provisions it could reach to contrary
situations to those wanted to be defended the impossibility of waiver of a right recognised by the
law could cause to the employee a disadvantage materialized in a prejudice such as the situation
of renouncing to a part or to the whole notice by the employee, in order to occupy another job. If,
in this case, we accepted that the employee can not waive the right of notice, stipulated by the law
into his favour, we should also accept the fact that this could lose a new job, which can be
immediately occupied, which, we consider, the legislator did not intend.
Therefore, together with other authors
122
, we consider that Article 38 must not be literally,
grammatically interpreted, but theologically. So, the legislator did not pursue to forbid any
transactions, but only the conclusions of the legal acts by which the employer would waive of his
imperative rights provided by law. Consequently, as the legal practice demonstrates too, the
conclusion of an agreement in the labour law is fully legal.
Specifically, the prohibition stipulated by Article 38 of the Labour Code does not apply if
the employee waive of his partial or total right in change of obtaining an advantage, provided that
the waiver does not lead to the rights decrease under the limit set by law. Meanwhile, the
prohibition is inapplicable if the employee waive of a right in order to save his individual
employment contract, unless it lead to the lowering under the legal limit of the provided right. For
instance, it was shown that it is possible the employees indirect waiver of his rights, by accepting
120
Decision no. 356/2005, published in the Official Gazette, Part I, no. 825 of September 13, 2005.
121
In this regard, also see Al. Athanasiu, M. Volonciu, L. Dima, O. Cazan, Codul muncii. Comentariu pe
articole, pp. 188-189.
122
D. Dasclu, M. Fodor, Unele consideraii privind competena soluionrii conflictelor de munc i a
litigiilor de munc. Impactul elementelor de extranietate asupra competenei soluionrii litigiilor i conflictelor de
munc, in Revista Romn de Dreptul Muncii, no. 1/2004, p. 124.
the increase of his obligations, beyond the limit set by law, unless this situation lead to the
lowering of the employees rights under the limit established by law.
123

Moreover, the Labour Code regulates in a different way certain institutions of labour right
and employees rights.
Thus, if regarding the payment and the right to leave, the Labour Code contains special
provisions in this regard, the settlement of non-compete clause has a different legal status.
According to Article 165 Labour Code, the acceptance without reservation of a part of the
payment rights or signing the payment acts in such situations can not have the signification of the
employees waiver of the rights that are entitled to him, as provided by the legal or contractual
provisions. Even more, Article 139 paragraph 2 expressly states that the right to leave can not form
the object of any cession, renunciation or limitation (similar Article 59 paragraph 5 of the National
Unique Collective Labour Agreement).
But, the adjustments referring to the non-compete clause represents, in fact, an exception to
the provisions of Article 38 Labour Code, meaning that the employee is legally allowed to accept
certain waivers of his labour freedom in change of obtaining an additional benefit. This benefit has
a material nature, consisting in a non-compete monthly allowance, which the employer obliges to
pay to him.
Unlike the employee, the provisions of Article 38 are not incident in the employers case.
Nothing prevents him to waive of his exclusive rights, although the right is provided by a
mandatory rule, except the situation in which this waiver would infringe a public interest. If we
exclusively refer to the employer financed from budgetary sources, the renunciation is twice
limited. Firstly, the waiver can not prejudice the financial resources available to these employers,
and secondly, the waiver can not prejudice a public interest.

References

iclea, Al., Acte normative noi - Codul muncii, n Revista Romn de dreptul muncii nr.
1/2003;
Macovei, O Coninutul contractului individual de munc, ed. Lumina Lex, Bucureti, 2004;
Barbu, V., Dreptul muncii. Curs universitar. Ed. Naional, Bucureti, 2003;
iclea, Al., Tratat de dreptul muncii, ediia a II a, Ed. universul Juridic, Bucureti, 2007;
Ptulea, V., Principiul libertii contractuale i limitele sale, n Dreptul nr. 10/1997;
Hurbean, A., Viciile de consimmt, Ed. Hamagiu, 2010;
Dumitriu, R., Contractul individual de munc, prezent i perspective, Ed. Tribuna
Economic, Bucureti, 2006;
Uluitu, A. G., Aspecte privind aplicarea art. 38 din Codul Muncii, n R. R. D. M nr. 1/2009.
123
In this regard, see O. Macovei, op. cit., p. 80; I. T. tefnescu, op. cit., pp. 46, 78-79, 103.
Beatrice Onica Jarka 49

SEVERAL REFLECTIONS ON THE SIGNIFICANCE OF THE ICJ
ADVISORY OPINION ON ACCORDANCE WITH INTERNATIONAL
LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN
RESPECT OF KOSOVO
Beatrice ONICA JARKA

Abstract

The paper shall focus on the presentation of the reasoning stated in the ICJ Advisory
Opinion on the accordance with international law of the unilateral declaration of independence
in respect of Kosovo and the significance of the said reasoning in the actual context of
international law in respect of new statehood. The paper shall try to point out the existence of
an intent of the ICJ by its Advisory Opinion to state a new understanding of the statehood
considering that the context of the unilateral independence statement and the capacity in which
its authors acted is of sufficient importance to rule on the legality of such statement. By avoiding
to rule on the coexistence of the right to territorial integrity and the right of self determination as
rights connected with the unilateral statement of independence, the Court lost the opportunity to
settle the relation between the two rights in the context of the remedial secession solution in
favor of a multiethnic group which was subject to gross human rights violation in the past.
Assuming the jurisdiction on the Advisory Opinion, the Court proved itself willing to show that
issues which were till now considered purely political and subject to decision of the political
organs of the UN may become, even in a narrow approach, points of law.

Keywords: ICJ, Kosovo, independence, jurisprudence, secession

Introduction
On July 22, 2010, the ICJ has delivered its Advisory Opinion on accordance with
international law of the unilateral declaration of independence in respect of Kosovo, by deciding
among others by ten votes to four that the declaration of independence of Kosovo adopted on 17
February 2008 did not violate international law.
The said Advisory Opinion was granted as a response to the United Nations General
Assembly question: Is the unilateral declaration of independence by the Provisional Institutions
of Self-Government of Kosovo in accordance with international law? While the Court in its
Advisory Opinion apparently approached the matter in a narrow formal manner, willfully ignoring
the right of Kosovo to secede from Serbia, the significance of the Advisory Opinion is crucial in
the actual international context in which Republic of Kosovo has been recognized already by 70
states and states as Romania, Cyprus, Spain or Russia continues to oppose to such recognition.
This paper shall focus on the significance of the ICJ Advisory Opinion, examining both its
legal and political dimension and the lost opportunity for the Court to open a reinterpretation of the
right to self determination and its exercise by minority groups easily able to declare their
Lecturer, Ph.D., Law Faculty, Nicolae Titulescu University, Bucharest (e-mail:

[email protected]).
independence. The narrow approach of the ICJ in considering only the legality of the statement of
independence without going in depth to the rights behind the statement of independence and their
exercise in connection with the rights of sovereignty and territorial integrity of Serbia is not going
to stop developing a path in which right to secede may become integral part of the right to self
determination. It is the ICJ Advisory Opinion which opened the Pandora box for all states which
will see in the Kosovo case the acceptance by international community of secession by the
unilateral will of the population occupying a certain territory. The Advisory Opinion on Kosovo
stands as legal evidence that the international community is ready to embrace unilateral secession
despite and against rights to territorial integrity sovereignty. Even considering the unique character
of Kosovo situation, there will others who will claim similar treatment.
The significance of the ICJ Advisory Opinion shall be examined from the point of view of
the legal aspects considered by the Court in its reasoning and comparison with the existing
international law in the field of rights to self determination, right to secede and right to territorial
integrity and sovereignty.
The examination of the ICJ Advisory Opinion allows at this point observing the
correspondence with the existing doctrine and the other UN organs resolutions and the use of such
doctrine and resolutions by ICJ.
Finally the examination of the ICJ Advisory Opinion will allow several reflections on a
possible initiation of jurisprudence
1
of ICJ in respect of the self determination right as a possible
auxiliary source of law in the determination and interpretation of this right in the postcolonial
context.

1. Legal framework
The legal framework is represented by the UN Charter, the 1970 Resolution 2625
(XXV) of the UN General Assembly concerning Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation among States in accordance with The Charter of
United States or the Final Act of the Conference on Security and Cooperation in Europe, the
International Covenants on Civil and Political Rights and respectively on Economical, Social and
Cultural Rights,, Security Council resolution 1244 (1999)

2. Description of the Advisory Opinion
2.1. Request for the Advisory Opinion
By a letter dated 15 August 2008 sent to the Secretary-General, Republic of Serbia
requested the inclusion in the agenda of the sixty-third session of the General Assembly of a
supplementary item entitled Request for an Advisory Opinion of the International Court of
Justice on whether the unilateral declaration of independence of Kosovo is in accordance with
international law.
At the second plenary meeting of its sixty-third session held on 19 September 2008, the
General Assembly approved the recommendation of the General Committee for inclusion of the
item in the agenda of the sixty-third session under heading F. Promotion of justice and
1
This work was supported by CNCSIS UEFISCSU, project number 860 PNII IDEI 1094/2008 in an
exercise of showing how the international jursiprudence is considered an auxiliarry source of law in determination
and interpretation of the norms of international law.
international law, and allocated it to the Plenary (A/63/PV.2). In this sense Serbia submitted draft
resolution A/63/L.2 dated 23 September 2008 on the Request for an Advisory Opinion of the
International Court of Justice on whether the unilateral declaration of independence of Kosovo is
in accordance with international law (A/63/L.2 of 23 September 2008). At the 22nd plenary
meeting of its sixty-third session held on 8 October 2008, the General Assembly adopted the draft
resolution submitted by Serbia by a recorded vote of 77 in favor to 6 against, with 74 abstentions
(A/63/PV.22). The resolution represents the General Assembly resolution 63/3, with the title
Request for an Advisory Opinion of the International Court of Justice on whether the unilateral
declaration of independence of Kosovo is in accordance with international law (A/RES/63/3 of 8
October 2008)
2
.

2.2. Proceedings before ICJ
The question addressed to ICJ raised a strong interest among the UN states. Within the time-
limit fixed by the Court for that purpose, written statements were filed by 36 states while more
than 20 states have oral submissions within the proceedings. The diversity of the states interested
in the topic is impressive. Among the states submitting written statements were states supporting
the independence of Kosovo as United Kingdom, United States of America or Germany and states
which declared that they will not recognize the new created Republic of Kosovo as Romania or
Russian Federation.
The authors of the unilateral declaration of independence themselves filed a written
contribution. The acceptance of the written contribution of the unilateral declarations of
independence within the procedure in front of ICJ represents a strong indication of the ICJs belief
as to the capacity these authors were acting with. As provided in the ICJ Statute, article 66, ICJ
shall receive written statements and oral statements only from states and international
organizations in connection to the matter addressed for the Advisory Opinion.

2.3. Conclusion of the Advisory Opinion
On July 22, 2010, the ICJ has delivered its Advisory Opinion on accordance with
international law of the unilateral declaration of independence in respect of Kosovo, by deciding
among others by ten votes to four that the declaration of independence of Kosovo adopted on 17
February 2008 did not violate international law.

2.4. Content of the Advisory Opinion
i. Powers of General Assembly to address the question for Advisory Opinion
After a short description of the factual situation and the legal context, the Court concluded
that the General Assembly has legitimate interest in the question, even though this matter is under
Security Council consideration.
ii. Scope and meaning of the question
The Court turned to the scope and meaning of the question on which the General Assembly
has requested that it give its opinion and considered it being clearly formulated.
In a clear attempt to avoid explicit implications of its opinion, the Court considered that the
question addressed by the General Assembly is narrow and specific. In this sense the Court
considered that the question posed does not ask whether or not Kosovo has achieved statehood nor
2
See International Court Of Justice Reports Of Judgments, Advisory Opinions And Orders, Accordance
With International Law Of The Unilateral Declaration Of Independence By The Provisional Institutions Of Self-
Government Of Kosovo (Request For Advisory Opinion) Order Of 17 October 2008 at the internet address:
http://www.icj-cij.org/docket/files/141/14799.pdf
about the validity or legal effects of the recognition of Kosovo by those States which have
recognized it as an independent State.
As consequence, the Court was not of the opinion that reformulation of the scope of the
question is necessary.
Nevertheless the Court found herself in the position to note that the reference to the
Provisional Institutions of Self-Government of Kosovo (General Assembly resolution 63/3 of 8
October 2008) as the authors of the declaration of independence is, comparing with the title of the
resolution Request for an Advisory Opinion of the International Court of Justice on whether the
declaration of independence of Kosovo is in accordance with international law, a matter which is
capable of affecting the answer to the question whether that declaration was in accordance with
international law. This is why the Court decided to freely examine the entire record and decide
for itself whether that declaration was promulgated by the Provisional Institutions of Self-
Government or some other entity.
Avoiding any matter of secession, the Court felt obliged to make clear that in case of
Kosovo the question addressed by the General Assembly does not require to take a position on
whether international law conferred a positive entitlement on Kosovo unilaterally to declare its
independence or, a fortiori, on whether international law generally confers an entitlement on
entities situated within a State unilaterally to break away from it.
3

As a consequence on this aspect the Court expressed the opinion that it is entirely possible
for a particular act such as a unilateral declaration of independence not to be in violation of
international law without necessarily constituting the exercise of a right conferred by it.
iii. Legal background for considering the question
Further on the substance of the matter, the Court analyzed the legal background against
which the request has to be considered. Based on the existing international law as to independence
declarations the Court reached the conclusion that the practice of States as a whole does not
suggest that the act of promulgating the declaration was regarded as contrary to international law
but rather that international law contained no prohibition of declarations of independence.
The Court made the difference between the statements of independence within the context
of the exercise of the right of self determination and statements of independence outside this
context. In connection to this last type of statements, the Court noted that the practice of States
does not point to the emergence in international law of a new rule prohibiting the making of a
declaration of independence in such cases
4
.
By merely mentioning the scope of the principle of territorial integrity as enshrined in the
international instruments, the resolutions of the Security Council condemning particular
declarations of independence invoked by several written submissions in case of Southern
Rhodesia, northern Cyprus, Republika Srpska and the right of remedial secession in the face of
the situation in Kosovo, due to their express invocation in the written statements of the participants
in the proceedings, the Court concluded nevertheless, that these issues fail outside the scope of the
question posed by the General Assembly.
Regarding the Security Council resolution 1244 (1999) and the UNMIK Constitutional
Framework created there under, the Court noted that none of the participants in the proceedings
has questioned the fact that resolution 1244 (1999), which specifically deals with the situation in
Kosovo, is part of the law relevant in the present situation.
3
See Advisory Opinion on 22 July 2010 at the internet address: http://www.icj-
cij.org/docket/files/141/15987.pdf
4
Advisory Opinion, para. 79
Within the international law background, the Court appreciated that there are a number of
other Security Council resolutions adopted on the question of Kosovo, notably Security Council
resolutions 1160 (1998), 1199 (1998),1203 (1998) and 1239 (1999); however, the Court sees no
need to pronounce specifically on resolutions of the Security Council adopted prior to resolution
1244 (1999), which are, in any case, recalled in the second preambular paragraph of the latter.
Regarding the regulations adopted on behalf of UNMIK by the Special Representative of the
Secretary-General, notably the Constitutional Framework, the Court observed that the
Constitutional Framework is binding and derives its binding force from the binding character of
resolution 1244 (1999) and thus from international law and in that sense it therefore possesses an
international legal character. On the other hand the Constitutional Framework functions in the
opinion of the Court as part of a specific legal order, created pursuant to resolution 1244 (1999),
which is applicable only in Kosovo and the purpose of which is to regulate, during the interim
phase established by resolution 1244 (1999), matters which would ordinarily be the subject of
internal, rather than international, law.
In this regard, the Court noted that Security Council resolution 1244 (1999) and the
Constitutional Framework were still in force and applicable as at 17 February 2008 and definitely
form part of the international law which is to be considered in replying to the question posed by
the General Assembly in its request for the Advisory Opinion.
Going further to the 1244 (1999) Security Council resolution interpretation, the Court
observed
5
that three distinct features of that resolution are relevant for discerning its object and
purpose.
First, resolution 1244 (1999) establishes an international civil and security presence in
Kosovo with full civil and political authority and sole responsibility for the governance of Kosovo.
Secondly, the solution embodied in resolution 1244 (1999), namely, the implementation
of an interim international territorial administration, was designed for humanitarian purposes to
provide a mean for the stabilization of Kosovo and for the re-establishment of a basic public order
(para.98). In this sense the Court noted that the interim administration in Kosovo was designed to
suspend temporarily Serbias exercise of its authority flowing from its continuing sovereignty over
the territory of Kosovo with the purpose to establish, organize and oversee the development of
local institutions of self-government in Kosovo under the aegis of the interim international
presence.
Thirdly, resolution 1244 (1999) clearly establishes an interim rgime; it cannot be
understood as putting in place a permanent institutional framework in the territory of Kosovo.
iv. Identity of the authors of the declaration of independence
The Court considered important to comment on the identity of the authors of the declaration
of independence, trying to determine whether the declaration of independence of 17 February 2008
was an act of the Assembly of Kosovo, one of the Provisional Institutions of created for the
government of Kosovo during the interim phase. After analyzing the text of the declaration and the
context of its adoption the Court concluded that the authors of the declaration of independence of
17 February 2008 did not act as one of the Provisional Institutions of Self-Government within the
Constitutional Framework, but rather as persons who acted together in their capacity as
representatives of the people of Kosovo outside the framework of the interim administration.
Then, the Court turned to the question whether the authors of the declaration of
independence acted in violation of Security Council resolution 1244 (1999) or the measures
adopted thereunder representing the Constitutional Framework. In this sense the Court concludes
5
Advisory Opinion, para. 97-99
that the Security Council resolution 1244 (1999) does not contain a prohibition, binding on the
authors of the declaration of independence, against declaring independence; nor can such a
prohibition be derived from the language of the resolution understood in its context and
considering its object and purpose
6
. In the same sense, the Court held that as the declaration was
not issued by the Provisional Institutions of Self-Government as set out in the Constitutional
Framework, the authors of the declaration of independence were not bound by the framework of
powers and responsibilities established to govern the conduct of the Provisional Institutions of
Self-Government
7
. Accordingly, the Court found that the declaration of independence did not
violate the Constitutional Framework.

3. Concurring and dissenting opinions
The Advisory Opinion reasoning felt frustrating equally for the judges voting against the
opinion but also to several voting for judges. In this sense, four judges from those voting in the
favor of the Advisory Opinion considered necessary to address the content of opinion separately.
Going from Judge Simmas statement to that expressed by Judge Cancado Trindade, through the
separate opinion of Judge Sepulveda Amor and that of Judge Yusuf, all express the clear need for
clarification of the Court standing as to the Kosovo matter.

3.1. Concurring opinions
Judge Simma
8
has stated for example that the Courts interpretation of the General
Assemblys request is unnecessarily limited and potentially misguiding reflecting an outdated
view of international law. The request deserved in the opinion of Judge Simma a more
comprehensive answer, assessing both permissive and prohibitive rules of international law.
In the same sense, Judge Seplveda-Amor
9
, after considering that there were no compelling
reasons for the Court to decline to exercise jurisdiction in respect of the request of the General
Assembly has expressed the opinion that the Court could have taken a broader perspective,
providing a more comprehensive response to the request by the General Assembly. Even if the
Court has not been asked to decide on consequences produced by the Declaration of Independence,
but only to determine whether it is in accordance with international law, the larger picture was
necessary. Therefore, issues such as the scope of self-determination, remedial secession, the
extent of the powers of the Security Council in respect of territorial integrity, the fate of a Chapter
VII international administration, complexities in the relationship between UNMIK and the
Provisional Institutions of Self-Government, and the effect of recognition and non-recognition in
the present case fall within the realm of the Courts advisory functions.
Judge Yusuf
10
delivered its separate opinion following, in principle, the same line of
reasoning as his two colleagues mentioned above. In this sense, judge Yusuf stated that the Court
overly restricted the scope of the question put to it by the General Assembly. Going further Judge
Yusuf considered that while declarations of independence per se are not regulated by international
6
Advisory Opinion, para.118
7
Advisory Opinion, para.121
8
See Judge Simkas Separate Opinion in the case at the internet address: http://www.icj-
9
See the Judge Sepulveda Amor Separate Opinion in the case at the internet address: http://www.icj-
10
See Judge Yusufs Separate Opinion in the case at the internet address: http://www.icj-
law, the claims they express and the processes they trigger may be of interest to international law
and for the Court in expressing a position on the scope and normative contents of the right to self-
determination, in its post-colonial conception and the circumstance in which external self
determination of people of Kosovo was legal.
The last and most elaborated separate opinion belongs to Judge Cancado Trindade
11
. In a 71
pages length opinion, Judge Cancado Trindade felt obliged to analyze in depth the needs and
aspirations of the People or the Population, the international administration of territory, the
concern of the United Nations Organization as a whole with the humanitarian tragedy in Kosovo,
the Principle of Self-Determination of Peoples under prolonged adversity or systematic oppression
or the Kosovos Independence with U.N. supervision, Judge Cancado Trindade concluded that
states exist for human beings and not vice-versa and states transformed into machines of
oppression and destruction ceased to be States in the eyes of their victimized population
12

3.2. Dissenting opinions
On the other side, in their dissenting opinions, the judges voting against the conclusions of
the Advisory Opinion expressed further their frustration as to the Advisory Opinion content.
Reflecting this frustration, the Vice-President Tomka
13
considered that the Court should
have exercised its discretion and declined to respond to the General Assemblys request, as the
Security Councils silence cannot be interpreted as implying any tacit approval of the declaration
and the Advisory Opinion is prejudicial to the exercise of the Security Councils powers. Vice
President Tomka further presented himself in the favoring of considering that final settlement
should have been determined by the agreement between the parties or by the Security Council, but
not merely by one party as it happened in the situation.
Dissenting opinion of Judge Bennouna
14
was in the sense that, by delivering the Advisory
Opinion the Court substituted for the Security Council in exercising its political responsibilities.
Judge Bennouna felt compelled to criticize the option undertaken by the Court to respond to the
request of the General Assembly in case of Kosovo.
By his dissenting opinion, Judge Skotnikov
15
has also considered that the Court should have
used its discretion to refrain from exercising its advisory jurisdiction in the rather peculiar
circumstances of the case which implied that an answer to a question posed by one organ of the
United Nations, is entirely dependent on the interpretation of a decision taken by another United
Nations organ. In his opinion, the Court both as a principal organ of the United Nations and as a
judicial body must have exercised great care in order not to disturb the balance between the three
principal organs General Assembly, Security Council and the Court, as has been established by the
Charter and the Statute. Judge Skotnikov also addressed the issue of the Courts interpretation of
general international law. According to the Advisory Opinion, which was supporting the finding
that general international law contains no applicable prohibition of declarations of
independence, Judge Skotnikov considered that such an interpretation is a misleading statement
11
See Judge Trindadess Separate Opinion in the case at the internet address http://www.icj-
12
See Judge Trindadess Separate Opinion in the case at the internet address http://www.icj-
13
See Judge Tomka Dissenting Opinion in the case at the internet address: http://www.icj-
14
See Judge Bennouna Dissenting Opinion in the case at the internet address: http://www.icj-
15
See Judge Stontnikov Dissenting opinion in the case at the internet address: http://www.icj-
as the general international law simply does not address the issuance of declarations of
independence, because declarations of independence do not create or constitute States under
international law.

4. Weaknesses of the ICJ Advisory Opinion
The content of the Advisory Opinion has obvious weaknesses revealed in both the
concurring and dissenting opinion. The Court after considering in its discretion that it should
answer to the question posed by the General Assembly, it limited the scope of the question to
general consideration of the unilateral independence statement, taken totally out from the entire
context of its issuance which was ultimately more political than legal.
By issuing the Advisory Opinion the Court frustrated not only those declared against the
unilateral independence declaration but also those in favor of it. And we do not refer solely to the
dissenting and concurring judges but also to the many states participating in the procedure which,
most of them, addressed the issues posed by the General Assembly in their complexity as points
of law. The Advisory Opinion was like the Court decided to make a step ahead on an
unprecedented matter and than its courage failed so the Court took a half of step back, hiding
behind a supposed narrow scope of the question.
The question addressed to the Court deals with the very specific issue of how far could go
the exercise of two essential international rights one against each other: the right belonging to the
state the right to territorial integrity and another belonging to a people the right to self
determination, in its extreme form of manifestation the remedial secession and the issue of new
statehood based on the unilateral statement of independence.
In essence, these were the points of law which the Court had to the construe in order to
assess the legality of the unilateral statement of independence for Kosovo. It was unexpected to
see how the Court chooses to consider such a narrow approach of the independence statement
going so far as to state that such instrument does not need to be the exercise of a right under
international law, eventually the right to self determination. The unilateral statement of
independence of a people cannot be obviously seen taken out from the context of international
law, which includes the exercise of rights in an independence statement and the effects of such
statement. It would have conferred to the Advisory Opinion quality to assess the impact of the
independence statement on the territorial integrity of Serbia and to analyze it as an exercise of the
right to external self determination underlining the consequences of such statement the creation
of a new state.

4. 1. The state sovereignty and right to territorial integrity
The sovereign equality and rights inherent to sovereignty which include the right to
territorial integrity represent for many years the foundation of international law having both legal
and political importance. Its enshrining in instruments with both universal and regional
significance: the UN Charter, the 1970 Resolution 2625 (XXV) of the UN General Assembly
concerning Declaration on Principles of International Law Concerning Friendly Relations and
Cooperation among States in accordance with The Charter of United States or the Final Act of
the Conference on Security and Cooperation in Europe evidences the long standing and
centrality these legal norms have in international law. ICJ has indeed recently referred to the
central importance in international law and relations of State sovereignty over territory and of the
stability and certainty of that sovereignty (case concerning Sovereignty over Pedra
Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), 2003). Within
the proceedings the sovereignty and the right to territorial integrity of Serbia represented the
main issue by which the unilateral statement of independence of Kosovo was to be interpreted.
The Court had for the first time the opportunity to make clear the application of the principle
of sovereignty and territorial integrity in the context of state and non-state entities relation, and to
make a first in stating on the significance of this right in connection the rights of minorities and an
eventual right to self determination of such groups if necessary.

4.2. The right to self determination and its application outside the process of
decolonization
The right of self determination is recognized at international level as having broad
application. The principle is enshrined in UN Charter, in the International Covenants on Civil and
Political Rights and respectively on Economical, Social and Cultural Rights, the 1970 Resolution
2625 (XXV) of the UN General Assembly concerning Declaration on Principles of International
Law Concerning Friendly Relations and Cooperation among States in accordance with The
Charter of United States or the Final Act of the Conference on Security and Cooperation in
Europe. The international doctrine
16
has several times dealt with the right of self- determination,
the internal and external determination and the right to remedial secession. By the Advisory
Opinion, the Court had the opportunity to finally settle the coexistence of the right of territorial
integrity and the right to self determination and the exercise of such right in the context of the
territorial integrity of the state, but it did not.

4.3. The declaration of independence and the statehood criteria
The declaration of independence cannot be viewed outside the context of the fulfillment of
the statehood criteria by the authors of the declaration.
It is mandatory to interpret the legality of a declaration of independence together with the
criteria referring to the statehood. Such criteria should have been analyzed in the context of the
entrenched presence of international organizations in Kosovo, such as KFOR, UNMIK and
EULEX and their effective governmental responsibilities in the territory and the United Nations
Secretary-Generals Special Representative and UNMIK powers to enter into foreign relations. As
stated in the concurring opinions, the Court could gave discussed also the consequences of the
declaration of independence.

4.4. Political nature of the ICJ Court decision
Instead of addressing the points of law in question, exercise of international rights, new
statehood issue, the Court preferred to rather take a political approach of the matter stating that an
independence statement made a group is not forbidden under international law.

5. Significance of the ICJ Advisory Opinion Conclusions
While de Court has not settled important points of law as the coexistence of the principles of
the Advisory Opinion of the ICJ proclaiming the legality of the statement of independence of
Republic of Kosovo has a strong significance to the new statehood concept.
At a first sight its extremely narrow scope could be considered to not contribute to any
development of the statehood issue. Nevertheless, despite such a narrow scope there will be states
16
See James Crawford, The Creation of States in International Law, Second Edition, Clarendon Press,
Oxford, 2006 or Rosalyn Higgins, Problems&Process, International Law and how to use it, Clarendon Press,
Oxford,1996
that do have separatist movements and that will fear that the decision will be interpreted as giving
the go-ahead for breakaway regions or de facto states to declare independence. It is to be said that
the Advisory Opinion implicitly recognizes that Serbia lost its sovereignty over Kosovo as a result
of the war crimes committed in that territory.
Following the adoption of the Advisory Opinion, states that supported Kosovos
independence and have recognized Kosovo as an independent state greeted the Advisory Opinion.
It was the U.S. Secretary of State Hillary Clinton who called on all states that have not done
so, to recognize Kosovo, while Member of European Parliament for Austrian Social-Democrats
Hannes Swoboda said that Kosovo's independence completes the dissolution of Yugoslavia and
marks the establishment of a new order in the Balkans Region
17
. Therefore the Advisory Opinion
shall have an impact on the recognition of the Republic of Kosovo, despite the fact that the Court
apparenty has not discussed this issue in the Advisory Opinion.
On the other side, it is important to underline that the Advisory Opinion, as narrow as it is,
shall have not only an impact on the Republic of Kosovo recognition but also on other interested
groups in supporting an international right to secession, recognised by the international
community. It should not be forgotten that the Advisory Opinon is grounded on the state practice
not forbidding statements of independence and affirms to a certain extent an emerging
international rule of law as to the right of seccesion.
Last but not least, the Advisory Opinion marks also the intent of the Court to procced on
issues conisdered to be under the realm of political organs of the UN as a statement of
independence shall always be the first affirmation of the statehood within international relations
and statehood has been considered for a long time exclusively a political consideration.
Whether or not the Advisory Opinion may be considered the initiation of a jurisprudence on
the recent developments of the right to self determination outside the colonial context and on their
growing acceptance by the international community remains to be seen.
17
KOSOVO. Weekly Report: ICJ Advisory Opinion on Kosovo Independence 28 July 2010 at the internet
address: http://www.vita.it/news/view/105870

GENERAL ASPECTS OF THE INFRINGEMENT PROCEDURE
Roxana-Mariana POPESCU
*
Abstract
Each Member State is responsible for the implementation of EU law (adoption of
implementing measures before a specified deadline, conformity and correct application) within its
own legal system. The infringement procedure is one of the enforcement mechanisms that can be
applied by the Commission against a Member State whenever the Commission is of the opinion
that the Member State is in breach of its obligations under EU law. Is a procedure with which the
European Commission fulfils one of its most fundamental duties, that is supervision of the
implementation of the acquis. The infringement procedure can be initiated ex officio, following a
proposal from a Member State or from a person reporting the infringement, be it a legal or a
natural person.

Keywords: infringement procedure; EU law; European Commission; Member State; acquis.

In the context of EU accession, Member States have assumed their obligation to integrate in
their own legal order, the legal rules of the European Union. In this regard, each Member State
must take measures to make sure that EU legal rule can be applied in the internal law, to ensure the
compliance of internal rules with EU legal rules and also to apply them correctly
1
. The Treaty
establishing the European Community provides various mechanisms for ensuring compliance with
the law of the European Union, mechanisms that include legal proceedings initiated, generally by
the European Commission and, in particular, we can say, by a Member State.
Since Member States have assumed a number of obligations, including those relating to the
correct and complete compliance and enforcement of EU law in the internal law, by expressing
their consent to become parties establishing treaties of the European Communities and the
European Union, naturally, these obligations must be fulfilled. Otherwise, the Treaty on the
Functioning of the European Union (TFEU) establishes a procedure by which states are held
responsible, namely, the procedure for infringement by Member States of their obligations under
EU law, which is specific to EU law and is regulated in Article 258, TFEU
2
.
As guardian of treaties, the European Commission shall ensure the implementation and
correct application of EU law into the internal law of Member States, and, under certain
circumstances, it can bring to the Court of Justice, an action against a Member State, if it finds that
the State has not fulfilled its obligations, under the treaties.
This action of finding the infringement of obligations is, according to the doctrine
3
, the special
control instrument specific to the Commission, within its powers in relation to Member States, as
expression of the existing dualism between Member States and institutions of the European Union.
Through this mechanism of action for finding infringements of treaties, the Commission makes
*
PhD candidate, Legislative Council.
1
Monica Elena Otel, The Procedure for the action of finding obligations infringement, by Member States,
under the EC Treaty and EU environmental law, the Romanian Community Law Magazine, no. 2 / 2006, p. 55.
2
V.n. Art. 226 TEC.
3
Fabian Gyula, Community Institutional Law, Third edition revised and enlarged with references to the
Treaty of Lisbon, Legal Sphere Publishing House, Cluj-Napoca, 2008, p. 359 ff.
sure that Member States do not exercise powers that they have voluntarily renounced at, in favor
of Communities
4
.
The possibility of introducing an appeal
5
to involve States liability when they do not fulfill
one or more of their obligations is reserved to the European Commission, according to art. 258,
TFEU. Thus, if the Commission considers that a Member State failed to fulfill any of its
obligations, under this Treaty, then the Commission issues a reasoned notification on the matter,
after giving that State the opportunity to comment. If the state in question does not comply with
the notification within the deadline set by the Commission, then the Commission may go to the
Court of Justice
6
.
Although, as noted, the Treaty speaks of infringement of an obligation, the concept is not
defined in any of the articles regulating the procedure. In this case, as in other cases, the Court had
the task to define it. Thus, the Court concludes that a breach of obligations is any infringement, by
any state authority, of mandatory rules and principles of EU law. The Court even stated that states
were responsible for actions, inactions or omissions of state bodies, independent from the
constitutional point of view. Whether it involves the provisions of constituent or modifying treaties
on secondary legislation, international agreements interconnecting the European Community,
respectively the European Union, or general principles of law guaranteed by EU law, it is not
important. At the same time, it must be mentioned that not acknowledging a decision of the Court
of Justice is also an obligation infringement, although, according to the Court in Luxembourg, it is
a special infringement
7
, likely to be referred to the Court.
The inconsistent behavior of a state may consist in an action, inaction or omission. For
example, the infringement of an obligation may be the result of applying a measure or a national
provision incompatible with EU law or keeping a national provision which is contrary to the one in
the law of the European Union. The Member State will be charged with infringement, but the state
body (authority) which is actually at the origin of the assumed obligation infringement is not taken
into consideration.

1. Causes and methods to begin the procedure for the infringement of assumed
obligations

A. Causes that may involve the procedure for the infringement of assumed obligations
There are several situations that could lead to beginning the procedure, namely:
- the infringement of a positive obligation to ensure effectiveness of EU law. The Court
considers that the obligation is not fulfilled when a Member State does not sanction those who
violate EU law in the same manner as those who violate the national law;
- general and persistent infringements. In practice, it appears that the state can be held
responsible even when EU legal rules are properly implemented. The situation takes, however,
into consideration a national administrative practice contrary to EU law, provided that it is
regarded as constant and widespread. In these cases, the Court of Justice considers that the
infringement, by a Member State, of assumed obligations can be established only after having
4
Idem.
5
In the European Community law, the term appeal does not take into consideration the extraordinary path
of offense of the internal law, and for this notion, the concept of action brought before a court is synonymous.
6
Art. 258 TFEU.
7
Ami Barav, Christian Philip, Dictionnaire juridique des Communauts europennes, PUF, Paris, 1993,
p. 639.
Roxana-Mariana Popescu 61
sufficient evidence to prove in detail and with documents the practice of the national government
and / or the respective courts, which differs from the type of evidence, typically required for, when
the infringement relates to terms used to formulate the national legislation
8
;
- the Court proceedings of a Member State. Often, the action of national courts has
constituted an infringement of EU law, generally and of obligations assumed by a Member State,
in particular. According to the constant practice of the Court of Justice, states are responsible for
actions or omissions of bodies, independent from the constitutional point of view;
- the omission of notification of national regulations transposing EU acts. The obligation of
Member States is to notify both the transposing legislation, as well as the one ensuring the
implementation
9
of EU regulations, and it is mentioned in most cases, in the final provisions of
EU regulations;
- the improper transposition of EU legal acts. Another obligation of Member States is that
the national legislation transposing EU regulations should be in absolute compliance with the
requirements of those acts in the field;
- the non-conformity of the national legislation with EU legal regulatory requirements
(inadequate implementation of EU law). Member States are obliged to ensure the exact
enforcement of the transposing provisions. The jurisprudence of the Court of Justice mentions that,
often, the reason for the Commission complaint is the inadequate implementation of EU
legislation, and not the incomplete transposition or its non-transposition. The Court states that the
freedom of a Member State to decide how to implement (...) does not relieve it from the
obligation to transpose the Directive provisions through national provisions with mandatory
character (...). The mere administrative practices, which can be modified by nature, as the
administration likes, can not be regarded as constituting a valid execution of the obligation, under
the Directive
10
. According to the Court, the proper implementation is particularly important so
that individuals know their rights, when those whom the Directive confers certain rights are
citizens of other Member States
11
. It should be cleared that, if the national law contains
provisions, some of which are compliant with EU law and some of which not, the Court considers
that such legislation is not clear enough to be consistent with EU law.

B. Detailed methods to begin the procedure for the infringement of assumed obligations
The Commission initiates the procedure, under Article 258 TEC, in response to the
complaint of a Member State
12
national or at its own initiative. However, without an available
inquiry service, the Commission collects the information necessary for filing the complaint, from
various sources, such as: through press, questions or petitions addressed in the Parliament or,
more and more frequently, through modern technological resources, such as databases that show
where Member States have not notified the implementation of the Directive
13
.
Thus, we identify the following ways to begin the procedure:
- the automatic report of omission cases of notifying the transposing national legislation. The
8
Paul Craig, Grinne de Burca, EU Law. Comments, jurisprudence and doctrine, Fourth Edition,
Hamangiu Publishing House, Bucharest, 2009, p. 561.
9
Monica Elena Otel, op. cit.,p. 57.
10
Paragraph 12 of the ECCJ Decision of May 25th, 1982, Commission des Communauts Europennes c /
Royaume des Pays-Bas, C-96/81.
11
Paul Craig, Grinne de Burca, EU Law. Comments, jurisprudence and doctrine, op. cit., p. 559.
12
According to art. 3, paragraph (3), point a) of Law no. 157/2005 for the ratification of the Treaty of
Romania's EU accession, the national of a State means the natural or legal person having the citizenship,
respectively the nationality of that State, in accordance with its internal legislation.
13
Paul Craig, Grinne de Burca, EU Law. Comments, jurisprudence and doctrine, op. cit., p. 539.
Commission benefits from a referral system that allows informing, leading thus to the beginning of
the automatic procedure. Through this system, the documentation of notification is brought
directly, by the Member State, into the database of the Commission;
- the complaint filed to the Commission by any legal or natural person seeking any measure
or practice of a Member State which it considers incompatible with EU rules. The complaint may
be drawn up in any official language of the European Union
14
, is exempt from taxes and may have
the form either of a letter or it can also be used the standard form
15
, elaborated by the European
Commission
16
. The natural or legal person filing the complaint should not have any interest in that
action and not be directly injured. The only condition for admitting the complaint is that it relates
to the violation of an EU legal rule, by a Member State. However, the Commission highlighted
that the procedure is not intended primarily to offer people a way to appeal, but is an objective
mechanism to ensure compliance, by the state, with the Community law
17
. Under the doctrine,
the Commission is free to respond or not to such a request. The complaint is recorded in a
register kept by the General Secretariat, and the complainant receives a notification with the
number of the complaint. Within a year, the Commission is compelled, either to close the case or
to move to the next stage. The complainant is, then, informed by the General Directorate in charge
of the field, on the action taken by the Commission, in response to his complaint
18
;
- The Commissions own investigations:
a) Reports drawn up by Member States: all Member States have the obligation to prepare
annual reports on the situation of complying with EU legal rules;
b) Parliamentary questions: The European Parliament may address the Commission, in
exercising control responsibilities, questions that concern their work. As a consequence to these
questions, the Commission may take notice and begin the procedure;
c) Petitions: within the European Parliament, operates a Committee on Petitions which
serves to receive such complaints from citizens. Some of these petitions are submitted to the
Commission for resolution and after analyzing them, the Commission may conclude that a
Member State has not complied with obligations, under EU legal rules
19
.

2. The procedure of finding the infringement of assumed obligations, by States
The specialized literature has formulated more opinions on the stages / phases of the
procedure. According to Paul Craig and Grinne de Burca
20
, the procedure of finding the
infringement by Member States of obligations assumed, under the EC Treaty, can be divided into
four distinct phases: the negotiation from the initial pre-contentious stage, the official notification
on that alleged violation, via a letter from the Commission, the issuance of a reasoned notice from
the Commission, sent to the State in question and the final stage - the referral to the Court of
Justice, by the Commission.
Carol Harlow and Richard Rawlings
21
identify, however three phases, namely: an initial
stage which is diplomatic and shaped by the Commission, a subsequent phase, a little more
14
Currently, there are 23 official languages.
15
The form became available to persons interested in it, in 1999. It can be found in Romanian, at the
following website: http://ec.europa.eu/community_law/your_rights/your_rights_forms_en.htm
16
Monica Elena Otel, op. cit., p. 58.
17
Paul Craig, Grinne de Burca, EU Law. Comments, jurisprudence and doctrine , op. cit., p. 539.
18
Gyula Fabian, op. cit., p. 361.
19
20
EU Law. Comments, jurisprudence and doctrine ", op. cit., p. 542.
21
Accountability and Law Enforcement: The Centralized EU Infringement Procedure, quoted by Paul
Craig, Grinne de Burca in EU Law. Comments, jurisprudence and doctrine, op. cit., p. 541.
jurisdictional, influenced by the Court, and yet dominated by the negotiator style of the
Commission and a third phase, with a clear legal character, as a consequence of applying a
pecuniary penalty against the State.
In our opinion, analyzing the content of the above stages, belonging to the authors
mentioned, we consider that the procedure has two main, but distinct stages, which in turn
comprise several actions, namely an administrative stage, a pre-contentious stage and a judicial
stage which is contentious. Thus, further, we shall present the procedure development, considering
these two stages.
A. The administrative, pre-contentious stage
The objective of this phase consists in allowing the Member State concerned to justify its
position or, if necessary, to comply with the treaty requirements. The administrative stage gives
the possibility to amicably resolve the misunderstandings that led the Commission to the
conclusion that the State concerned has not complied with EU law.
The administrative stage is a mutual change of views between the future complainant (the
Commission) and the future defendant (the Member State), more specifically, in this stage, some
time limits to resolve the situation inconsistent with EU law are set, and what is also important is
that, within the administrative procedure, the delimitation of the scope of the future action brought
before the Court of Justice is also established
22
.
The Court itself has stated repeatedly that the procedure purpose is to enable the Member
State, on one hand to remedy, correct or rectify its position on the issue presented before Court
and, secondly, to present its defense against complaints of the Commission
23
.
In most cases, the procedure is initiated by the European Commission. In this case, the
Commission shall send to the Member State likely to have infringed EU law, an informal letter.
The General Directorate, with responsibilities in a particular area, requests, through this letter, to
the State in question, relevant details on the alleged infringement of EU law. The role of this letter
is to collect information and to eliminate any misunderstanding of the Commission. In practice, it
was shown that in many cases, the alleged infringement of EU law was due to shortcomings in
translating national acts or to their misinterpretation
24
.
If, after the response received from the State, the Commission considers that the state is still
likely to have infringed EU law, it shall send to the state in question, a formal letter requesting to
the Member State to submit its views on its conduct towards the situation, which the Commission
considers an EU law infringement. The letter states what the EU law infringement is, contains a
summary of objections of the European Commission and also sets a time limit during which the
state has the opportunity to make observations. The opportunity offered to the State to make
comments, is considered by the Court as an essential guarantee, without which the infringement
procedure, by States, of their assumed obligations, would be unfounded (illegal)
25
.
The Member State can indicate, through observations, the measures it has taken to entry
into normality, if it recognizes that it ran counter to the Community legal order
26
.
We agree with authors of the specialized literature stating that the State may not invoke
provisions in its favor, practices or circumstances existing in its internal law to justify the non-
22
23
Idem.
24
Monica Elena Otel, op. cit., 2006, p. 60.
25
Section 1 of the ECJ Decision Summary, of March 28
th
, 1985, Commission des Communauts
Europennes c / Rpublique italienne, C-274/83 (The purpose of Art. 169 TCEE clears that the pre-contentious
stage of the procedure for obligations infringement must contain (...) the state possibility to make comments (...) -
an essential guarantee required by the Treaty, and respecting this guarantee is a condition that guarantees the
legality of this procedure).
26
compliance with the Community law obligations, even if they are constitutional
27
.
If after an exchange of views between the Commission and the Member State, or in the case
the Commission receives no response from the State, the Commission is still convinced that it
involves an EU law infringement, it issues a reasoned notification. The notification does not bind
on the Member State concerned, and its legal effect is possible only in connection with an eventual
notice of the Court of Justice. The notification must meet the following conditions:
1. to contain only those objections of the Commission presented in a formal letter;
2. to be reasoned, meaning to contain a coherent and detailed statement of the reasons
which led the Commission to consider that the State in question has failed to fulfill an obligation
assumed under the Treaty
28
;
3. to specify a reasonable period in which the Member State would comply with EU law.
Regarding the need for motivating the notification, we have to make an observation. In the
law of the European Union, the obligation to state reasons is an essential procedural requirement.
Furthermore, Article 297 TFEU expressly requires that regulations, directives and decisions must
be accompanied by reasons for which they have been developed and adopted. Article 258 puts,
indirectly, this provision also in documents issued by the Commission, on its grounds. If in the
first case, the lack of motivation is the subject of an action for cancellation, it is not the same with
the failure of stating reasons for a notification of the Commission, and this merely because the
notification is an act without legal force, being, in fact a tool guide. As argument, we take into
consideration the statement made by the General Advocate Lagrange in the conclusions presented
in the case Commission v Italy in 1961
29
, namely: This document should not be required to fulfill
any formality, since (. ..), the reasoned notification is not an administrative act subject to the
control of the Court, with regard to its legality. Nevertheless, the Member State which the
notification is addressed, may appeal the absence of its motivation, but only before the Court of
Justice, if the procedure reaches this point.
Since the Treaty does not stipulate a time within which the State must submit comments,
the Commission shall give a reasonable time, ordinarily two months, but the time limit may vary
depending on the complexity of the case, emergency, whether the state was already informed
before the initiation of the procedure
30
. The deadline established by the Commission can be
extended only by the Commission because the Court of Justice has no jurisdiction in granting a
time extension.
The Member State is not compelled to answer to the notification letter sent by the
Commission, and the absence of such a response does not involve any negative consequences.
But if the State answers to the European Commission, the answer must include measures
taken in order to comply with EU law. The measures may be administrative or legislative, or both.
The deadline for the implementation of measures and for response at the Commission's
requirements is of two months, but it may be extended at the request of the Member State
concerned, by a maximum of three months, if necessary measures to comply with the reasoned
opinion must be adopted through a legislative procedure
31
.
If the state does not conform to the notification transmitted by the Commission, within the
time stipulated, it (the Commission) may go to the Court of Justice. Interestingly, the Luxembourg
27
Monica Elena Otel, op. cit, p. 61.
28
Section 1 of the ECCJ Decision Summary, of July 11th, 1991, Commission des Communauts
Europennes c / Rpublique portugaise, C-247/89.
29
ECCJ Decision of December 19th, 1961, Commission de la Communaut conomique europenne c. /
Rpublique italienne, C-7/61.
30
Mihaela-Augustin Dumitrascu, article published in the Newsletter of INPPA, no. 3 / 2005.
31
Court may be notified, even in the case where the Member State has straightened its behavior, but
after the deadline established. The reasons why the State is not exempted from any liability, were
presented by the Commission itself, namely: the Commission maintains that it has a permanent
interest in bringing the action to prevent states to undermine the infringement proceedings,
ending their behavior which is not in accordance with EU law, before pronouncing an order, so
that, subsequently it can resume its impugned conduct. However, the Commission argues, the
Court must hear and determine also the short-term violations, because punishable is the EU law
infringement, and not the duration of the infringement.
Through the referral to the Court, by the Commission, a confirmation of its legal position
adopted in the reasoned notification is wanted. The referral is, in fact the start of the contentious stage.
B. The contentious stage
The appeal for finding the infringement of obligations assumed must be introduced, at the
latest within one month, after the Commission decided to refer the case to the Court of Justice
32
.
Regarding the contents of the appeal, some clarifications must be made. Given that the
reasoned notification acts as a procedural protection for the benefit of the Member State
33

suspected to infringe EU law, the Commission can not change the substantive content of its claims
when it goes to Court. Moreover, the Commission can not alter the substantive content of its
arguments, not even when it comes to hearing the case by the Court of Justice, even if both parties
wish the Court to examine other aspects referring to the state conduct that occurred after the date
of issuing the notice
34
. In the case where the Commission wishes to introduce a new objection
(which is not in the reasoned notification), it can not change the complaint, but it must resume the
entire procedure, under Article 226. The only case upheld by the Court on amendments to claims
formulated by the Commission, refers to a situation where they are less than in the reasoned
notification.
In conclusion, the Commission can not express, at this stage, other claims than those found
in the reasoned notification, but it can renounce at some of them.
In the application, the Commission must clearly indicate what its claims are, which are the
matters of law and fact on which the calling of the State, to the Court, is based.
From the jurisprudence of the Court, it results that the Member State, although recognizing
the EU law infringement, can not rely on the structure of its internal administrative system,
established in accordance with constitutional rules, to argue the impossibility to resolve the
problem. In this case, the Member State concerned is compelled to change the national system in
order to ensure the uniform application of EU law.
Often, Member States invoke in order to explain the noncompliance, in time, with EU law,
issues related to the legal system and to the separation of state powers, in the internal systems of
law, rejected, however, constantly by EUCJ. The Court reiterated comments according to which
the State was responsible whatever would be the state body whose act or omission underlies the
obligations infringement, even in the case of an institution constitutionally independent
35
and that
a Member State may not invoke provisions, practices or circumstances existing within the
internal legal system to justify the non-compliance with obligations and time limits set by
community Directives
36
.
Another form of defense of the states is reflected in claiming the lack of intent, but not even
this time the Court is willing to forgive the state, because the Court finds only if the
infringement has occurred or not, and not whether it happened intentionally or negligently.
32
33
Paul Craig, Grinne de Burca in EU Law. Comments, jurisprudence and doctrine, op. cit., p. 551.
34
Idem.
35
Idem, p. 563.
36
Idem.
Another reason brought forward by Member States refers to the fact that the infringement
was committed by other Member States, but not even this reason stands up. The Court has often
rejected the idea according to which the obligation of respecting EU law is mutual and dependent
on the absolute compliance by other Member States.
And last but not least, we mention that according to the Court, it is not possible for a
Member State to invoke the illegality of a previous EU decision that had been sent, in order to
prevent a decision against it, within an action based
37
on article 258 for failing to comply with
that decision.
Within a month after the decision of the Court, the Commission sends a letter to the
Member State which reminds it the obligation to take necessary measures to ensure compliance
with the violated EU law and to report within three months, the measures taken or to be taken
38
.
The Member State is able to transmit a response to the Commission, on measures it has taken to
comply with the decision of the Court, this option representing the right of the Member State
concerned to defend it and to demonstrate how it considers necessary to respect the decision of the
Community Court
39
.
If after observations transmitted by the Member State concerned, the Commission still
considers that it has not taken the necessary measures to comply with the decision of the Court, it
will issue a reasoned notification specifying the aspects on which the State has not complied with
the decision of the Court.
If the Member State concerned has not taken measures imposed by the Court's judgment
within the period set by the Commission, then the Commission may go to the Court of Justice. The
Commission states the quantum of the lump sum or penalty payments which it considers
appropriate to the circumstances and that the Member State must pay
40
.
Under Article 260, section (2), paragraph 3) TFEU, the infringement by the Member State
of the Court decision constitutes a new violation of the Treaties provisions which may be
sanctioned again with an action of obligations infringement, and the Court may oblige the Member
State to pay a lump sum or sums with comminatory character, until the fulfillment of obligations
specified in the first decision.
In determining the lump sum, the Court will consider the following: the hazard of the
infringement, the duration of the infringement, the possibility of the Member State to pay the
compensation required, the effect of the infringement on the public or private interest and the
urgency of the matter
41
.
C. Effects of the decision
The decision of the Court of Justice for failure to fulfill obligations assumed by Member
States is just a declaration. It establishes only the infringement existence, and national authorities
have the task to take measures in order to enforce the decision
42
.
The Court has no power to suspend and annul the state actions contested by the finding of
EU law infringement or to establish concrete measures that the respondent State is compelled to.
The Court decision requires the State concerned to amend the legislation, adjusting it properly and
without delay, to measures ordered
43
. Although the Court decision has res judicata authority only
between the parties, individuals can invoke an EU regulation, the purpose and scope of which have
been defined by the Court of Justice.
37
Idem, p. 564.
38
Monica Elena Otel, op. cit., 2006, p. 64.
39
Idem, p. 65.
40
Art. 260, paragraph (3), TFEU.
41
42
Mihaela-Augustina Dumitrascu, op. cit.
43
References

Ami Barav, Christian Philip, Dictionnaire juridique des Communauts europennes, PUF,
Paris, 1993 ;
Paul Craig, Grinne de Burca, EU Law. Comments, jurisprudence and doctrine, Fourth
Edition, Hamangiu Publishing House, Bucharest, 2009;
Mihaela-Augustin Dumitrascu, article published in the Newsletter of INPPA, no. /2005;
Fabian Gyula, Community Institutional Law, Third edition revised and enlarged with
references to the Treaty of Lisbon, Legal Sphere Publishing House, Cluj-Napoca, 2008;
Monica Elena Otel, The Procedure for the action of finding obligations infringement, by
Member States, under the EC Treaty and EU environmental law, the Romanian Community
Law Magazine, no. 2/2006;
Law no. 157/2005 for the ratification of the Treaty of Romania's EU accession;
Lisbon Treaty, signed in 2007, entered into force in 2009;
ECCJ Decision of May 25th, 1982, Commission des Communauts Europennes c / Royaume
des Pays-Bas, C-96/81 ;
ECCJ Decision Summary, of March 28
th
, 1985, Commission des Communauts Europennes
c / Rpublique italienne, C-274/83;
ECCJ Decision Summary, of July 11th, 1991, Commission des Communauts Europennes c
/ Rpublique portugaise, C-247/89 ;
ECCJ Decision of December 19th, 1961, Commission de la Communaut conomique
europenne c. / Rpublique italienne, C-7/61 ;
http://europa.eu/lisbon_treaty/faq/index_ro.html

SHORT CONSIDERATIONS ON THE TACIT APPROVAL PROCEDURE
Elena Emilia TEFAN
1

Abstract
The publication in the Official Gazette of Law no.157/12 July 2010 amending and
supplementing the Government Emergency Ordinance no. 27/2003 on the tacit approval
procedure, gave us the occasion to start this demarche by which we tried to present the main
changes of substance caused to the public administration activity and their impact on the
improvement of the business environment. In this paper we will specify what the regulatory scope
of this law is, we will define the notion of authorization and will analyze whether the
administration can be sanctioned for passiveness in its relationship with the citizen. Last but no
least, we will conclude by presenting procedural details in solving disputes regarding the issue of
authorizations that fall within the scope of the tacit approval procedure.

Keywords: public service, tacit approval, authorization, obligation to publish information,
obligation to communicate information

Introduction
In the following, we aim at presenting the tacit approval procedure, as seen from the
perspective of the Romanian law, considering the existing institutional framework.
A scientifically rigorous approach determines us, before proceeding to the analysis of the
subject itself, to make a short presentation of the public service and of the principles of operation
of public services.
In other words, the preface of this theme aims at describing the institutional framework of
the good administration concept, analyzed simultaneously with the code of conduct for public
servants (I)
The central axis of this paper consists in the analysis of the content of the Government
Emergency Ordinance no. 27/2003
2
on the tacit approval procedure, as seen from the perspective
of the new changes caused to it by Law no. 157/12 July 2010
3
(II).
The usefulness of this paper is due to its intent of highlighting the novelties brought in the
matter as concerns the following: procedural details in issuing the authorizations falling under the
scope of tacit approval procedure, the impact of these changes on the business environment and on
the public administration activity in general.
Finally, we aim at making a synthesis of the conclusions deriving from our analysis (III).

University tutor, Faculty of Law, Nicolae Titulescu University, Bucharest, Romania, e-mail:
[email protected]
2
Government Emergency Ordinance no. 27/2003 on the tacit approval procedure, published in the Official
Gazette no. 291/25 April 2003
3
Law no. 157/12 July 2010 amending and supplementing the Government Emergency Ordinance no.
27/2003 on the tacit approval procedure, published in the Official Gazette no. 496/19.07.2010
Elena Emilia Stefan 69
(I) Public service, principles of operation of public services, right to good
administration, code of conduct of public servants
In the doctrine of specialty, the notion of public service has been the subject of many
research efforts of some famous authors in the legal and other fields. Etymologically speaking, the
word service comes from the Latin word servitum that means slave, hence the
interpretation of being in somebodys service, or put at service, which evokes the idea of public
utility or public service
4
. The term of public service is used both with organizational meaning, as
social organization, and with functional meaning, as activity carried out by such an organization.
5

In P. Negulescus understanding, public service meant an administrative organization
created by the State, the county or the commune, with well determined competence and powers,
with financial means obtained from the general patrimony of the creating administration, placed at
the publics disposal in order to regularly and continuously satisfy a general need, whose private
initiative could only provide incomplete and intermittent satisfaction
6
.
Professor Ioan Alexandru
7
defined the public service as the organization of the State or of
the local collective created by the competent authorities in order to guarantee the satisfaction of
certain requirements of society members in the law enforcement process, in terms of
administrative or civil law.
Another reputed author, Verginia Vedina
8
, asserts that, in the specialty literature, we are in
the presence of a public service if several conditions are met:
- the requirements of the society members are satisfied,
- its creation is made through government acts,
- the activity of the service must be carried out while exercising public authority, and its
personnel must, usually, consist of public servants etc.
As we all know, legality is the essence of the States activity, of the administrations activity
as a whole.
9
The public administration, regardless of the level it is at, must adopt one decision or
the other, depending on the applicable laws, in accordance with the public interest.
4
For a wider view, see Iordan Nicola, Managementul serviciilor publice locale (Management of local
public services), (Allbeck Publishing House, Bucharest, 2003), p.63, quoted by Verginia Vedina in Drept
Administrativ (Administrative Law), 4
th
Edition revised and updated, (Universul Juridic Publishing House,
Bucharest, 2009) p. 243
5
Ioan Alexandru, Ivan Vasile Ivanoff, Claudia Gilia, Sisteme politico administrative europene (European
Political-Administrative Systems), (Bibliotheca Publishing House, Trgovite, 2007), p.86; Anton Trilescu, Drept
Administrativ (Administrative Law), 4
th
Edition, (C.H. Beck Publishing House, Bucharest 2010), p. 102 defined the
public service from the material and formal points of view.
6
P. Negulescu, Tratat de drept administrative (Treatise on Administrative Law), 1
st
volume, 4
th
Edition
(Marvan Publishing House, Bucharest, 1934), p. 126, quoted by Ctlin-Liviu Sraru, Contractele administrative,
Reglementare, Doctrin, Jurispruden (Administrative Contracts, Regulatory framework, Doctrine, Case-Law)
(C.H. Beck Publishing House, Bucharest, 2009) p. 203-204
7
Ioan Alexandru, Ivan Vasile Ivanoff, Claudia Gilia, op.cit, p.87
8
Verginia Vedina, Drept Administrativ (Administrative Law), op.cit, p. 245. For other opinions, see also:
Dana Apostol Tofan, Drept Administrativ (Administrative Law), 1
st
volume, 2
nd
Edition (CH Beck Publishing
House, Bucharest 2008), p.8; Rodica Narcisa Petrescu, Drept Administrativ (Administrative Law), (Accent
Publishing House, Cluj Napoca, 2004), p.24 etc.
9
Ioan Alexandru - Drept administrativ comparat (Comparative Administrative Law), (Lumina Lex
Publishing House, Bucharest, 2000) p.133, quoted by Verginia Vedina in Statutul funcionarilor publici. Legea
nr.188/1999, cu modificrile i completrile ulterioare, republicat (Statute of Public Servants. Law no. 188/1999,
as subsequently amended and supplemented, republished), (Universul Juridic Publishing House, Bucharest, 2009),
p.18
The public interest, as defined in the code of conduct for public servants, is the interest that
public institutions and authorities guarantee and observe the legitimate rights, freedoms and
interests of citizens, recognized by the Constitution, by the domestic legislation and by the
international treaties Romania is part in.
At the level of the European Union, there is the Charter of Fundamental Rights
10
which
provides the right to good administration, as a fundamental right of the citizens of the Union.
Moreover, on September 6
th
, 2001, the European Parliament adopted the European Code of
good administrative behaviour
11
that the institutions and organizations in the European Union, the
administration and its servants must abide by in its relationship with the public.
The European Ombudsman had an important contribution to the enactment of the European
Code of good administrative behaviour, by which it defined the concept of good administration, as
it made suggestions for its wording, and which is currently a guide and source
12
of information for
the personnel of all the institutions and organizations of the Community.
The right to good administration
13
, according to the European Code of good administrative
behaviour, has four components:
1.) Every person has the right to have the institutions and organizations of the Union fairly
and impartially analyze their case within a reasonable period of time;
2.) This right mainly includes: the right of every person of being heard before taking any
individual measures that might negatively influence their situation; every persons right to have
access to the file of their own case, provided that they observe the authorized confidentiality
interests and the professional and business secrecy; the administration has the obligation to justify
its decisions;
3.) Every person has the right, in accordance with the common general principles in the
legislation of the Member States, to have the Community repair the damage caused by the
institutions or by their employees in exercising their functions;
4.) Every person may address the Unions institutions in writing, in one of the languages of
the treaty and receive an answer in the same language.
In accordance with the provisions of article 4 titled Legitimacy, the servant must carry
out its activity in accordance with the law and apply the rules and procedures established in the
Community legislation. The servant pays attention particularly to whether the decisions affecting
the rights or interests of citizens have the required legal substantiation and a legal content.
Like other states, Romania has harmonized its legislation with the European standards, thus
adopting, among other relevant pieces of legislation, the Code
14
of conduct for public servants
establishing the rules of professional conduct of public servants; therefore, there is a conceptual
compatibility.
As for the principles governing the professional conduct of public servants, here are some
examples: supremacy of the Constitution, priority of the public interest, equal treatment of citizens
before the public authorities and institutions, professionalism, impartiality, fairness and
correctness, openness and transparency, etc.
10
JO 2007 C 303. It was proclaimed first in December 2000 at Nice and was signed and proclaimed again on
12 September 2007, before the signing of the Lisbon Treaty on 13 December 2007. See the entire text at: http://eur-
lex.europa.eu/ro/treaties/dat/32007X1214/htm/C2007303RO.01000101.htm
11
See the entire text: Le Code Europen de Bonne Conduite Administrative, Office des publications
officielles des Communauts Europennes, L- 2985 Luxembourg 2002, ISBN 92-95010-42-6
12
For full details, see http://www.ombudsman.europa.eu/activities/home.faces
13
For other details, the wording of the Code can be consulted at the web address:
www.euroombudsman.eu.int.
14
Law no. 7 / 18 February 2004 on the Code of conduct for public servants, published in the Official Gazette
of Romania no. 157/23 February 2004, amended by Law no. 50/13 March 2007
The reason why I made a short analysis of the concepts of public service, right to good
administration, code of conduct for public servants was to ensure an easier transition to the object
of analysis of this paper, namely the tacit approval procedure.

(II) The main provisions of Law no. 157/12 July 2010 amending and
supplementing the Government Emergency Ordinance no. 27/2003 on the
tacit approval procedure
2.1. In treating this subject, we will start by defining the notion of tacit approval and
then we will make a comparative presentation of the new elements brought by Law no. 157 / 12
July 2010 simultaneously with the provisions of the Government Emergency Ordinance no.
27/2003 that suffered no changes.
The tacit approval procedure
15
, as it is defined by the Government Emergency Ordinance
no. 27/2003, is the procedure by which the authorization is considered as granted if the public
administration authority fails to give an answer to the applicant within the legal deadline set for the
issue of such authorization.
In the civil law there is a very well known theory of the legal value of silence. Its the Latin
adage qui tacit consentire videtur, i.e. he who is silent is taken to agree.
As a rule, in the civil law
16
, silence is not seen as externalized consent. As an exception,
silence is seen as consent: 1) when the law expressly provides it; 2) when, due to the express will
of the parties, a certain legal significance is ascribed to silence; 3) when silence is seen as consent
according to the customs.
If we extrapolate the civilian theory to the public law, we can assert that, through the tacit
approval procedure, the lawmaker intended to ascribe a certain legal significance to silence, under
certain conditions strictly determined by this legal text.
The reason for adopting this legislative text is that accountability
17
was intended for the
public administration authorities in view of complying with the legal deadlines set for the issue of
authorizations and permits, but we will revert to this aspect towards the end of our demarche.
According to the Government Emergency Ordinance no.27/2003 on the tacit approval
procedure, its main objectives are, among others: removal of the administrative barriers in the
business environment, fight against corruption by reducing arbitrariness in the administrative
decision-making process, as well as promotion of the quality of public services by simplifying the
administrative procedures.
In the first part of our paper we identified the principles that public servants must take into
account in their activity and, on that occasion, we spoke of their professionalism and of their
abidance to the law.
We believe that the professional training of public servants is reflected first of all in the
quality of the public services they provide, and the quality of services is tightly connected to law-
abidance.
In the following, we will present the provisions of Law no.157/12 July 2010 amending and
supplementing the Government Emergency Ordinance no. 27/2003 on the tacit approval procedure.
15
Article 3 point b) of the Government Emergency Ordinance no. 27/2003
16
Gheorghe Beleiu, Drept civil romn. Introducere n dreptul civil. Subiectele dreptului civil (Romanian
Civil Law. Introduction to Civil Law. Themes of Civil Law) (Casa de Editur i Pres ansa SRL, Bucharest,
1992), p.130-131
17
Article 1 point b) of the Government Emergency Ordinance no. 27/2003
2.2. The regulatory framework of the tacit approval procedure has remained the same,
meaning that it applies to all the authorizations issued by the public administration authorities,
except for those issued in the field of nuclear activities, those regarding the regime of firearms,
ammunition and explosives, the regime of drugs and precursors, as well as authorizations in the
national safety field.
Also, the provisions of the Government Emergency Ordinance no. 27/2003 apply to the
authorization issue procedures, to the authorization renewal procedures and to the reauthorization
procedures, as a result of the expiry of the authorization suspension period or of the
accomplishment of the measures established by the competent control bodies, according to article1
par. 2.

2.3. The notions used have not changed their meaning, namely:
Authorization means the administrative document, issued by the public administration
authorities, by which the applicant is allowed to conduct a certain activity, to provide a certain
service or to exercise a certain profession. The notion of authorization also includes the permits,
licenses, approvals, or other such administrative documents.
- The negative answer of the competent public administration authority, given within
the legal authorization issue deadline, is not the same thing as tacit approval.

2.4. About the obligations of authorities concerning the display of information
regarding the issue of authorizations.
Among the important changes caused to the aforementioned piece of legislation regarding to
the obligation to display information, we remind some of them:
- the public administration authorities that are competent to issue authorizations must
display in their premises and, as the case may be, on their web page the information concerning
the issue of authorizations;
- also, the authorities must display the list of authorizations (within the scope of activity of
such authorities) for which the tacit approval procedure is applicable, as well as the following
information for each separate type of authorization:
a.) the application form that must be filled in by the applicant, as well as the instructions
for filling it up;
b.) the list of all the documents needed for the issue of the authorization and the manner in
which they must be submitted to the public administration authority;
c.) all the information regarding the preparation of documents and, if necessary, the list of
public administration authorities that are competent to issue administrative documents included in
the documentation that must be lodged, such as: address, telephone or fax number, office hours for
the public.
The amendment of the wording consists in the introduction of the copulative conjunction
and and of the expression as the case may be, as opposed to the former regulation where
these obligations were alternative, using the disjunctive conjunction or.
The information that must be displayed will be presented in a clear manner, giving, if
possible, concrete examples.
The public administration authorities will elaborate guides regarding the authorization
procedure and the preparation of the documentation that the issue of an authorization is based on.
Any interested person may obtain a copy containing the information specified above, according to
the provisions of article 4. Most European states guarantee the citizens right to have access to the
documents of the administration, and in 1906, in the United States, a general right of consultation
of the documents in possession of the federal authorities was instituted.
18

2.5. About the obligation of authorities to
19
communicate information upon the
applicants filing of the application
The public authorities will have the obligation to communicate, in writing, upon the filing of
the application:
- its registration number;
- registration date;
- express information regarding the legal settlement deadline;
- whether the application is subject or not to tacit approval.
This information is also communicated if the electronic filing of applications is possible.
The aforementioned obligation of communication is applicable both to applications for the
issue of authorizations and to applications for the renewal of authorizations.
Also, Law no. 157/12 July 2010 amending and supplementing the Government Emergency
Ordinance no. 27/2003 on the tacit approval procedure deliberately includes in its wording that the
explicit or tacit refusal of the appointed employee of an authority to apply the provisions
regarding the publicity of the aforementioned information is sanctioned
20
, and this deed is
construed as default and will engage the disciplinary liability of the defaulting employee.
The guilty infringement by public servants of the duties relevant to their public function and
of the rules of professional and civic conduct established by the law is construed as disciplinary
default and will engage their disciplinary liability
21
.
It has been said in the specialty literature
22
that disciplinary defaults negatively influence the
quality of public services and law enforcement, thus determining the decrease of the citizens trust
in the public authorities.

2.6. Another new element brought by Law no. 157/2010 refers to the document
23

considered equal to an authorization for all purposes.
The applicant lodges with the competent public authority an application accompanied by the
full documentation, prepared in accordance the legal provisions regulating the authorization
procedure in question and with the aforementioned information.
Virtually, the authorization is construed as granted or, as the case may be, renewed if the
public administration authority fails to give an answer to the applicant within the legal deadline set
by the law for the issue or renewal of the relevant authorization.
According to the wording of the ordinance, unless the law sets forth a deadline for the
settlement of the authorization application, the public administration authorities must settle the
authorization application within 30 days as of its submittal.
18
Bertil Cottier, La publicit des documents administratifs, tude de droit sudois et suisse. Thse de
doctorat, Imprimeries Runies SA Lausanne, 1982, p. 179, quoted by Verginia Vedina in Statutul funcionarilor
publici. Legea nr. 188/1999, cu modificrile i completrile ulterioare, republicat (Statute of Public Servants.
Law no. 188/1999, as subsequently amended and supplemented, republished), (Universul Juridic Publishing House,
Bucharest, 2009), p. 22.
19
Article 6 of the Government Emergency Ordinance no. 27/2003
20
Its the information that must be displayed in the premises of authorities and, as the case may be, on their
web page.
21
Dana Apostol Tofan, op cit, p.361
22
Anton Trilescu, op cit, p. 167
23
Article 8 of the Government Emergency Ordinance no. 27/2003
When
24
the applicant approaches the relevant public administration authority and his
authorization has not been not issued within the legal deadline, therefore after the expiry of the
response time, the applicant informs it about the existence of the approval case regarding any
document that is subject to tacit approval, according to the law, and demands that the registry
office of that authority issue an official document confirming that no answer has been given within
the legal deadline with regard to his request. In such situation, the public administration authority
must issue, within 5 days as of such demand, a document allowing the applicant to conduct an
activity, provide a service or exercise a profession.
This document allows the applicant to conduct and activity, to provide a service or to
exercise a profession and is considered equal to an authorization for all purposes, including
before the control bodies, except for the authorization that is valid only in its standard form,
expressly regulated by the law.
In the old regulatory framework there was no provision regarding the document replacing
the authorization for all purposes, issued by the public administration authority when such
authority, being in default for not answering to the applicant within the legal deadline, was
indirectly forced to grant the authorization by means of this document.
The law goes further and protects the applicants interests, indirectly sanctioning the passive
attitude of the public administration authority by giving the applicant the possibility to bring an
action in court. Thus, if the relevant public administration authority fails or refuses to issue the
document allowing the conduct of an activity, the provision of a service or the exercising of a
profession, as well as if the authorization is valid only in its standard form, expressly regulated by the
law, the applicant may approach the court of law, according to the procedure established by this
ordinance.
The court will settle the application within 30 days as of its lodging, by summoning the parties.

2.7. Another new element brought by Law no. 157/2010 is connected to the
prosecutors participation in the trial.
The compulsoriness of the prosecutors participation in dispute settlement has been
eliminated as regards the issue of authorizations that fall within the scope of the tacit approval
procedure, as opposed to the former regulation where this was not compulsory, according to article
9 par. 3.

2.8. As regards the irregularity of the documentation that accompanies the
authorization application, the tacit approval procedure has not been modified by Law no.
157/2010, and remains the same.
Thus, if an irregularity in the lodged documents is acknowledged at the application filing
time, the public administration authority will notify this to the applicant at least 10 days before the
expiry of the legal deadline for the issue of such authorization, if such deadline exceeds 15 days, or
at least 5 days before the expiry of the legal deadline for the issue of the authorization, if such
deadline is less than 15 days. At the same time, the public administration authority will specify the
method to remedy the acknowledged irregularity.
In the aforementioned situations, the issue deadline or, as the case may be, the renewal
deadline is extended accordingly by 10 days or 5 days, as the case may be.
Please note that the public administration authority that fails to approve the authorization
application within the legal deadline by the applicants fault, as detailed above, is not sanctioned.
24
Article 8 par. 1 of Law no. 157/2010
2.9. Another provision refers to what happens when, after the issue of the document
allowing to conduct an activity, to provide a service or to exercise a profession, the public
administration authority acknowledges the failure to meet some conditions that are important for
the issue of the authorization.
In such situation, the public administration authority will not be able to cancel the
document, but will immediately notify its holder, by registered letter with acknowledgement of
receipt, about the irregularities found, specifying how to remedy all the identified minuses, as well
as the deadline within which the holder must fulfil this obligation. Such deadline cannot be less
than 30 days and will start running as of receiving the notice.

2.10. Also, procedural details are set forth in case the applicant approaches the court.
The applicant must prepare a file containing the following: the petition accompanied by the copy
of the authorization application having the number and date of registration with the respondent
public administration authority, accompanied by the entire documentation filed with this authority,
as well as by the mentions specified
25
under article 6 par. (3^1).
In the following, we will present the solutions of the court vested with a legal action based
on the ordinance on the tacit approval procedure.
Considering the legal text, the court has two options:
- to allow the petition, if it acknowledges that the conditions set forth by the emergency
ordinance on the tacit approval are met, and issue a decision forcing the public administration
authority to issue the official document allowing the applicant to conduct a certain activity,
provide a service or exercise a certain profession;
- to reject the petition, if it acknowledges that there is an answer of the state body or a notice
regarding the irregularity of the filed documentation, having the posting date stamped at the
dispatch location or the date when the applicant became acquainted with the answer, anterior to the
expiry of the legal deadline for the issue of the authorization.
Court decisions are drafted within 10 days as of pronouncement and are irrevocable.

2.11. The provisions regarding the sanction of the public administration authorities
have not been modified, therefore there may be several situations:
- if the petition is allowed and the public administration authority fails to fulfil its
obligation and issue the official document allowing the applicant to conduct a certain activity, to
provide a service or to exercise a profession within the deadline mentioned in the court decision,
upon the applicants demand, the court may force the manager of the public administration
authority in whose charge the obligation was established to pay a judicial fine representing 20%
of the national minimum net wage for each day of delay, as well as to pay indemnities for
damages caused by such delay.
- the deed of the public servant or of the contractual personnel by whose fault the public
administration authority has failed to give an answer within the legal deadline, thus applying the
tacit approval procedure for granting or renewing an authorization, is punished according to Law
no. 188/1999 on the Statute of public servants or, as the case may be, according to the labour
legislation, being construed as disciplinary default, unless it was committed in such circumstances
that, according to the criminal law, it may be construed as felony. In such case, the public servants
civil, patrimonial or criminal liability, as the case may be, could be engaged as well.
- the deed of the public servant who, being aware of the authorization application and its
relevant documentation, knowingly refuses to settle the application within the legal deadline and
25
They refer to the legal deadline to settle the dispute, specifying if the relevant application is subject to the
tacit approval procedure or not.
determines the intervention of the presumption of tacit approval is a felony and is punished with
imprisonment.

2.12. Also, the provisions regarding the sections for the guilty conduct of petitioner
have been maintained:
- the deed of a person invoking before a public authority or institution the existence of an
authorization as a result of the tacit approval procedure by knowingly omitting to produce the
answer or the notice received as part of the authorization process, according to article 6 par. 4, is a
felony (misrepresentation) and is punished according to the Criminal Code.
- conducting the activities referred to under article 2 par. 1 without having an express
authorization from the competent public authority is a felony and is punished with imprisonment.

(III) Conclusions
The analysis of the tacit approval procedure pointed out an important aspect that must be taken
into account in the activity of the public administration, namely the deadline to conclude the
administrative procedures. For this ordinance to be sustainable, the public administration authorities
must, first of all, have the qualified, responsible personnel, well acquainted with the law.
In the future, a greater importance should be attached to the way ingoing/outgoing
documents are drafted at the level of registry offices within institutions because the registration
date and number on the applicants deposit slip are key elements in this procedure.
In practice, many cases are pending before the courts of law to figure out the following
judiciary matter: is the tacit approval procedure applicable also to building authorizations?
However, we will expand on this subject in some other paper.
Although we do not deny the merits of Law no. 157/2010 on the tacit approval procedure,
we cannot go without specifying the weak points of this special procedure, namely:
- the notion of public administration authority is not defined;
- the deadline to approach the court of law is not expressly specified.
To find out what public authority means, we can make an interpretation based on a
juridical reasoning, by corroborating several notions used in the public law. Starting from the idea
that the tacit approval procedure is a good practice in the relationship between the public
administration in general and the business environment in particular, our opinion is that its
meaning can be determined by relating to the Constitution and to the general definition given to
the public administration by the administrative disputes law.
Thus, Law no. 554/2004
26
, article 2 par.1 point b defines public authority as any state
body
27
or other body of the administrative-territorial units acting, with public power, to satisfy a
public legitimate interest; within the meaning of this law, the category of public authorities
consists of private law legal entities which, according to the law, have obtained a public utility
statute or are authorized to provide a public service, with public power.
As regards the court competent to approve o reject the petition based on the ordinance on
the tacit approval procedure, we believe that it is the court specialized in administrative disputes.
26
Law no. 554/ 2 December 2004 on administrative disputes, published in the Official Gazette no. 1154/7
December 2004, updated.
27
Antonie Iorgovan, Liliana Vian, Alexandru Sorin Ciobanu, Diana Iuliana Pasre, Legea contenciosului
administrativ (Legea nr.554/ 2004) -cu modificrile i completrile la zi- comentariu i Jurispruden (Law on
administrative disputes (Law no. 554/2004) as amended and supplemented to date- Comments and Case-Law),
(Universul Juridic Publishing House, Bucharest, 2008), p.66 et seq.
By expressly setting forth sanctions that can be applied to public servants by whose fault the
tacit approval procedure intervened, such as: disciplinary, patrimonial, civil or criminal sanctions,
but also the disciplinary liability for failing to fulfil the information publicity obligation, Law no.
157/2010 refers to the positive answer to this question: can the public administration be sanctioned
for passivity in its relationship with the citizen?
Moreover, for the same purpose mentioned above, we believe that the aims of this ordinance
are realistic, namely to remove administrative barriers from the business environment and fight
against corruption by reducing arbitrariness in the administrative decision-making process.
We believe that the target of boosting economic development by providing the most
favourable conditions to enterprisers, by involving authorization costs as low as possible is
merely theoretical and unrealistic as long as the law itself leaves the possibility to prolong the
waiting time in obtaining the authorization and to add costs. By that we mean that, regardless of
the adopted procedure, the facultative one or the judicious one, if the public administration
authority fails to issue the document according to the filed application (provided that it meets all
the legal requirements) within the legal deadline or fails to enforce the court decision by issuing
the document, there is an unjustified loss of time and money for the applicant.
In the end of our demarche, we express our confidence that, in the future, as the Romanian
Code of conduct for public servants provides, the quality of the public service will increase since
public servants have the obligation of ensuring a high-quality public service to the benefit of
citizens.

References

Iordan Nicola, Managementul serviciilor publice locale (Management of Local Public
Services), (Allbeck Publishing House, Bucharest, 2003), p.63
Verginia Vedina, Drept Administrativ (Administrative Law), 4
th
Edition, revised and
updated, (Universul Juridic Publishing House, Bucharest, 2009) p.243 et seq.
Ioan Alexandru, Ivan Vasile Ivanoff, Claudia Gilia, Sisteme politico administrative europene
(European Political-Administrative Systems), (Bibliotheca Publishing House, Trgovite,
2007), p.86 et seq.
Anton Trilescu, Drept Administrativ (Administrative Law), 4
th
Edition, (C.H. Beck
Publishing House, Bucharest 2010), p. 102 et seq.
P. Negulescu, Tratat de drept administrative (Treatise on Administrative Law), 1
st
volume,
4
th
Edition (Marvan Publishing House, Bucharest, 1934), p. 126
CtlinLiviu Sraru, Contractele administrative, Reglementare, Doctrin, Jurispruden
(Administrative Contracts, Regulatory framework, Doctrine, Case-Law) (C.H. Beck
Publishing House, Bucharest, 2009), p. 203-204
Dana Apostol Tofan, Drept Administrativ (Administrative Law), 1
st
volume, 2
nd
Edition
(Publishing House CH Beck, Bucharest 2008), p.8 et seq.
Rodica Narcisa Petrescu, Drept Administrativ (Administrative Law), (Accent Publishing
House, Cluj Napoca, 2004), p.24
Ioan Alexandru - Drept administrativ comparat (Comparative Administrative Law), (Lumina
Lex Publishing House, Bucharest, 2000), p. 133
Verginia Vedina, Statutul funcionarilor publici. Legea nr.188/1999, cu modificrile i
completrile ulterioare, republicat (Statute of Public Servants. Law no. 188/1999, as
subsequently amended and supplemented, republished), (Universul Juridic Publishing House,
Bucharest, 2009), p.18 et seq.
Antonie Iorgovan, Liliana Vian, Alexandru Sorin Ciobanu, Diana Iuliana Pasre, Legea
contenciosului administrative (Legea nr.554/2004) -cu modificrile i completrile la zi-
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amended and supplemented to date- Comments and Case-Law), (Universul Juridic
Publishing House, Bucharest, 2008), p.66 et seq.
Gheorghe Beleiu, Drept civil romn. Introducere n dreptul civil. Subiectele dreptului civil
(Romanian Civil Law. Introduction to Civil Law. Themes of Civil Law) (Casa de Editur i
Pres ansa SRL, Bucharest, 1992), p.130-131
Bertil Cottier, La publicit des documents administratifs, tude de droit sudois et suisse.
Thse de doctorat, (Imprimeries Runies SA Lausanne, 1982), p. 179
Law no. 554/ 2 December 2004 on administrative disputes, published in the Official Gazette
no. 1154/7 December 2004, updated.
Law no. 7 / 18 February 2004 on the Code of conduct for public servants, published in the
Official Gazette of Romania no. 157/23 February 2004, amended by Law no. 50/13 March
2007
Government Emergency Ordinance no.27/2003 on the tacit approval procedure, published in
the Official Gazette of Romania no. 291/25 April 2003, updated
Law no. 157/12 July 2010 amending and supplementing the Government Emergency
Ordinance no. 27/2003 on the tacit approval procedure, published in the Official Gazette no.
496/19.07.2010
Charter of Fundamental Rights
Le Code Europen de Bonne Conduite Administrative, Office des publications officielles des
Communauts Europennes, L- 2985 Luxembourg 2002, ISBN 92-95010-42-6
http://www.ombudsman.europa.eu/activities/home.faces
www.euroombudsman.eu.int
http://eur lex.europa.eu/ro/treaties/dat/32007X1214/htm/C2007303RO.01000101.htm

DOCUMENTS PRECEDING THE ADOPTION OF DIRECTIVE
2004/35/EC TRANSPOSED IN THE ROMANIAN LAW BY
GOVERNMENT EMERGENCY ORDINANCE NO. 68/2007 ON
ENVIRONMENTAL LIABILITY
Andrada TRUC

Abstract
The European legislation realized in 2004 one of the historical challenges of EU
environmental legislation. The Community law has had long before the intention to regulate the legal
regime of environmental damage, facing though many obstacles: the technical complexity of this
task, the opposition of states and sectors affected by the system, including ideological factors and the
supremacy of the precautionary principle in the area of environmental law. The regime proposed
considers that the environmental liability is based on the polluter pays principle, but also on
principles 13 and 16 of the Rio Declaration (1992) on Environment and Development which
established, on one hand that subjects who pollute, should in principle bear the cost of pollution, and
on the other hand, imposed an obligation on states, to develop the national law regarding liability
for environmental damage and compensation for victims of pollution and environmental
degradation. The Directive is the result of 15 years of attempts to change and adapt the liability
regime to the specificity of environmental damage and to exploit developments in this context,
especially in the prevention and remedying area; it is an attempt of green revolution of the tort
liability system. By this normative act, the European Community has known for the first time in its
history, a regulation dealing, in a horizontal and systemic manner, the problem of preventing and
remedying the environmental damage. The Directive succeeds to establish reference points for the
harmonization of the national legislation on measures for preventing and remedying environmental
damage at EU level, ensuring a minimum level of legal and administrative rules, on the matter.

Keywords: environment, damage, liability, Directive 2004/35/EC, polluter pays principle

Introduction
Although the Treaty establishing the European Economic Community
1
did not stipulate
competences in the sphere of environmental protection, the awareness of the need for Community
action in this regard took shape through the first Environmental Action Programs at Community
level, materialized in statements / resolutions of the Council of European Communities and of
Member States
2
representatives.
The European Community competence to adopt environmental protection measures was
included in the Treaty of Rome, simultaneously with the adoption of the Single European Act
3
,
Lecturer, Ph.D candidate, Dimitrie Cantemir Christian University

1
Adopted at Rome on March 25, 1957 and entered into force on January 1st, 1958.
2
Milena Tomescu, Serban- Alexandru Stanescu, Condi iile rspunderii juridice pentru daune aduse
mediului potrivit Directivei 2004/35/CE, Revista Romn de Drept al Afacerilor 6 (2006): 48.
3
Signed in Luxembourg on February 14, 1986 and in Hague on February 28, 1986 and entered into force on
July 1st, 1987.
then in the Treaty on European Union
4
, and last, but not least, in the Treaty of Amsterdam
5
,
finding the explanation in an objective reality, namely that pollution has no borders, its effects
affecting peoples life and health, their property, the flora and fauna, without taking into account
the limits of the national territory, and, on the other hand, measures for pollution prevention,
compensation and restoration of the damaged environment are more easily to take, being based on
uniform rules of law, which should not vary from state to state
6
.
Thus, on May 14, 1993 the Green Paper on environmental liability
7
was adopted, and in its
introduction it mentioned several environmental accidents which had a significant impact on the
environment: Seveso, Amoco Cadiz, Sandoz, Coruna and Braer.
Without going into details, we will try to make a summary of the environmental disasters
mentioned in the Green Paper:
The Seveso Case 1976
The accident of Seveso took place on July 10, 1976, when, after a reactor explosion at a
chemical plant in town, 5 km north of Milan, in Italy, a large quantity of dioxin leaked; being one
of the most toxic and dangerous toxins, the dioxin sowed death, disease and desolation in the
Brianza valley, where the city concerned was located. Within just a few days, a total of 33.00
animals were found dead
8
.
The Amoco-Cadiz Case 1978
On March 16, 1978, the Liberian tanker Amoco-Cadiz which moved toward Le Havre
harbour failed near the French coasts, in Bretagne, after a steering system failure. For nearly two
weeks, the entire load (227.000 tones of oil) was discharged into the sea, representing the largest
oil slick registered in the history of oil vessels accidents. 360 km of coast were affected,
constituting the largest environmental disaster caused by an accident of this type. In the affected
area, 30% of the fauna and 5% of the flora were destroyed. About 20,000 seabirds were discovered
killed by the oil slick, the marine cultivations of oysters were strongly affected, losses amounting
to 9,000 tons, and also the fishing activity, the shellfish harvesting and the tourism were affected
on a short term. The compensation amounted to 1,257 billion francs
9
.
The Sandoz Case 1986
In November 1986, a fire destroyed a warehouse of the Sandoz chemical group, located on
the Rhine, at Schweizerhalle. The fire caused the discharge in the river of over 30 tones of
chemicals, insecticides, fungicides and herbicides. This first environmental catastrophe that
occurred in Switzerland, caused a significant pollution of the Rhine and the death of hundreds of
thousands of fish, affecting all neighbouring countries crossed by the Rhine.
4
Signed in Maastricht on February 7, 1992 and entered into force on November 1st, 1993.
5
The Treaty of Amsterdam amending the Maastricht Treaty, Treaties establishing the European
Communities and other related documents signed on October 2nd, 1997 and entered into force on May 1st, 1999;
art. 12 provides the renumbering of articles, titles and sections of the Treaty establishing the European Community,
so that Title XVI Environment becomes Title XIX - Environment (Milena Tomescu, Serban- Alexandru Stanescu,
op cit.., p. 49, notes 10 and 11).
6
Milena Tomescu, Serban-Alexandru Stanescu, op. cit., p. 49.
7
COM (93) 47 final. The Green Paper is a notice of the Commission (complementary source of community
law, without specific legal effects) which presents various options, without taking a position, with the exact purpose
of opening a debate with Member States. (Augustin Fuerea, Drept comunitar european. Partea general
(Bucharest, All Beck Publishing House, 2004) 135, note 5)
8
http://en.wikipedia.org/wiki/Seveso_disaster
9
Serban-Alexandru Stanescu, Protec ia mediului marin mpotriva polurii cu hidrocarburi. Prevenirea,
limitarea efectelor, angajarea rspunderii, (Bucharest, Hamangiu Publishing House, 2010), 37-38; Mircea Dutu,
Tratat de Dreptul mediului, Issue 3, (Bucharest,CH Beck Publishing House, 2007), 478.
Andrada Trusca 81
The Coruna Case 1992
The Greek-flagged tanker Aegean Sea failed during a severe storm, on December 3, 1992,
and trying to enter La Coruna harbour (Spain), it got on fire. Over 300 km of coast were affected
by pollution when the 66, 800 tones of oil were discharged into the sea. The accident affected the
work of more than 4,000 fishermen, gatherers of shellfish and aquaculture producers
10
.
The Braer Case 1993
On January 5, 1993, the Braer tanker failed in southern Shetland Islands (United Kingdom)
following an engine damage occurred during a severe storm. The 84,500 tons of spilled oil
affected the marine cultures of salmon, the sheep, and over 2,000 victims sought compensation for
damages caused by pollution, damages totaling 58, 4 million pounds
11
.
The questions raised in the content of the Green Paper are conceived to arouse discussions
that the Commission pursues on this topic of remedying the environmental damage, in order to
better inform its future actions in this area.
First, the Green Paper states that the civil liability is a legal and financial tool used to
determine those who are responsible for causing damages, to pay compensation for costs of
remedying such damage. Secondly, the Green Paper seeks to investigate the possibility of
remedying the environmental damage which is not covered by the principles of civil liability.
The Green Paper was received with great interest by European Union Member States, by the
industrial sector, but also by NGOs for environmental protection.
In April 1994, the European Parliament adopted a resolution inviting the Commission to
develop a proposal for a directive on the regulation of environmental damage
12
. In this regard, on
January 29, 1997, the Commission decided to develop a White Paper
13
on environmental liability,
which was adopted on February 9, 2000. The purpose of the White Paper is to investigate how the
polluter pays principle, one of the key principles in environmental matters, may be applied to best
serve the needs of the Community environmental policy
14
.
Also, the White Paper refers to two environmental disasters: the Aznalcllar case and the
Erika case, which we shall briefly present below:
The Aznalcllar Case 1998
The accident was represented by the breaking of the dam from Aznalcllar (Spain). The
Boliden Mine, from the town above mentioned, used to produce about 125,000 tones of zinc and 2,
9 million ounces of silver per year. The residue pool of the mine broke on a length of about 50 m,
in late April 1998, spilling a toxic wave of about 3 million m3 of mud and 4 million m3 of acidic
water into the Agri River, in an area next to the Coto Donana National Park, one of the largest
natural reserves in Europe.
The accident caused damage on an area of 30 km, destroying rare species of flora and fauna.
The cost of the cleaning done by the public authorities was $ 44 million and the costs of the
Regional Council of Andalusia amounted to $ 53.3 million. The company spent a total of EUR 96
million to clean the discharge and received more EU funding, worth 37.7 million euros. By May
2002, the total cost of the disaster had been calculated at 377.70 million euros. The mine was
permanently closed on September 20, 2001
15
.
10
Serban-Alexandru Stanescu, op. cit., 39.
11
Serban-Alexandru Stanescu, op. cit., 39.
12
Simona-Maya Teodoroiu, Dreptul mediului i dezvoltrii durabile, (Bucharest, Legal Universe Publishing
House, 2009), 230.
13
The White Paper is a notice of the Commission (complementary source of community law, without
specific legal effects) used to take position on a certain issue (Augustin Fuerea, op cit.., 135, note 4)
14
http://ec.europa.eu/environment/legal/liability/white_paper.htm;
15
http://www.arpm7c.ro/twinning/twinning-phase1/downloads/WEBPAGE%20FINAL/04_Horizontal%20
Assessments/Mission52/07b_ELV_cases_impact_RO.pdf
The Erika Case 1999
The Maltese-flagged tanker Erika, with 30,000 tons of oil on board, was caught in a storm
on December 11, 1999, sinking in the Bay of Biscay (France). 20,000 tones of oil of its reservoir
leaked. The pollution resulted was an ecological and economic disaster: more than 61,400 water
birds killed, 450 km of coastline affected by pollution, over 200,000 tones of oil waste collected
16
.
What is important is the fact that before drafting the White Paper, from 1995 - 1997, a series
of studies
17
were commissioned by the Commission in order to help prepare the White Paper on
environmental liability. The summaries of these studies appear in the annexes to the White Paper.
The first study, published on December 31st, 1995, Study of civil liability systems for
remedying environmental damage
18
, examines the legal system of liability on remedying the
environmental damage from 19 different countries
19
. Initially, the analysis should have included
only the civil liability system, however for a thoroughgoing study and a general overview, both the
civil and the criminal liability were taken into consideration.
The second study, Liability for damage to natural resources
20
was published on
September 17, 1997, as the result of a brief research on liability for damage caused to natural
resources. The aim of this study was to analyze and identify possible solutions to various problems
that may arise in the damage recovery of natural resources (damage assessment, natural resources
covered by the law in force). The study began in July 1997 and ended in September 1997.
Liability for contaminated sites
21
is the third study, published on September 26, 1997,
stating the importance of a liability regime for damage caused through soil pollution, necessary to
ensure the application of the precautionary principle, the prevention principle and the polluter
pays principle, since pollution is a serious problem of the modern society, most European
countries, especially the industrialized ones facing this problem.
Thus, after the European Commission decided to prepare the White Paper on liability for
environmental damage, the position of Member States was swift: the attitude of Austria, Belgium,
Finland, Greece, Luxembourg, Netherlands, Portugal and Sweden was favorable for the action in
the field of liability for environmental damage, and several Member States said they expected
legislative proposals of the European Commission before starting the process of national
regulation in this area. The comments of Member States regarded the inclusion in the project of the
environmental damage caused by the deliberate release and introduction on the market of
genetically modified organisms
22
.
After consulting several independent experts, national experts from Member States, but also
all interested parties, on February 9, 2000, the Commission drew up and released the White
Paper
23
on liability for environmental damage, which was a step forward in creating a systemic,
uniform and consistent regulation for environmental damage, at the level of the European
Community
24
and which considered that the environmental liability aims at determining a person
who has caused damage to the environment (the polluter) to pay some money to remedy the
damage caused, reflecting in this way the content of the polluter pays principle
25
.
16
Serban-Alexandru Stanescu, op. cit., p. 40, see also http://www.euractiv.ro/uniunea-europeana/articles%
7CdisplayArticle/articleID_9305/Politici-de-mediu.html
17
http://ec.europa.eu/environment/legal/liability/background.htm
18
Translated from English: The study of civil liability systems for remedying environmental damage.
19
The United States of America, Denmark, Finland, France, Germany, Italy, Netherlands, Spain, Sweden,
England, Austria, Belgium, Greece, Iceland, Ireland, Luxembourg, Norway, Portugal and Switzerland.
20
Translated from English: Liability for damage to natural resources
21
Translated from English: Liability for Contaminated Sites
22
Simona-Maya Teodoroiu, op. cit., p. 231.
23
COM (2000) 66 final.
24
Simona-Maya Teodoroiu, op. cit., p. 232.
25
Cristian Mares, Rspunderea comunitar pentru daunele aduse mediului reglementat de Directiva
2004/35/CE, Annals of the Faculty of Juridical Sciences, Wallachia University of Targoviste, 1 (2009): 121.
Andrada Trusca 83
The White Paper concludes that the most appropriate option is a Framework Directive on
liability for damage caused by dangerous activities, regulated by the European Commission, meant
to cover the traditional damage, as well as the environmental damage and the fault-based liability
for environmental damage caused by activities that are not dangerous.
Thus, on February 21st, 2002, based on the White Paper, the European Parliament and the
Council adopted a proposed directive
26
on environmental liability, and two years later the
Directive 2004/35/EC of the European Parliament and Council on environmental liability with
regard to preventing and remedying environmental damage was adopted. The directive is destined
to all Member States, and the deadline for transposing it into the national law is April 30, 2007
27
.

Directive 2004/35/EC
28
on environmental liability concerning the prevention and
remedying of environmental damage
The European legislation realized in 2004 one of the historical challenges of EU
environmental legislation. The Community law has had long before the intention to regulate the
legal regime of environmental damage, facing though many obstacles: the technical complexity of
this task, the opposition of states and sectors affected by the system, including ideological factors
and the supremacy of the precautionary principle in the area of environmental law
29
.
The regime proposed considers that the environmental liability is based on the polluter
pays principle, but also on principles 13
30
and 16
31
of the Rio Declaration (1992) on Environment
and Development which established, on one hand that subjects who pollute, should in principle
bear the cost of pollution, and on the other hand, imposed an obligation on states, to develop the
national law regarding liability for environmental damage and compensation for victims of
pollution and environmental degradation
32
.
26
O.J no. C 151 E, June 25, 2002
27
Milena Tomescu, Serban-Alexandru Stanescu, op. cit., 50.
28
Directive 2004/35/EC of the European Parliament and the Council, of April 21
st
, 2004 on environmental
liability to prevent and remedy environmental damage, O.J no. L 143/56 of April 30, 2004. The Directive was
amended by Directive 2006/21/EC of the European Parliament and the Council, of March 15, 2006 on the
management of waste from extractive industries and amending Directive 2004/35/EC, O.J no. L102/15 of
November 4, 2006 and Directive 2009/31/EC of the European Parliament and the Council, of April 23, 2009 on the
geological storage of carbon dioxide and amending Council Directive 85/337/EEC, as well as Directives 2000 /
60/CE, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and the Commission Regulation (EC) no. 1013/2006 of
the European Parliament and Council, O.J no. L 140/114, of June 5, 2009.
29
Jess Jordano Fraga, La responsabilidad por daos ambientales en el Derecho de La Unin Europea:
Anlisis de la Directiva 2004/35, de 21 abril, sobre Responsabilidad medioambiental, Revista Electrnica de
Derecho Ambiental Medio Ambiente & Derecho 12-13 (2005), http://huespedes.cica.es/aliens/gimadus/
30
Principle 13 of the Rio Declaration: States should draw up national laws on liability and compensation
for victims of pollution and other damage to the environment. Also, States should cooperate with greater timeliness
and determination to develop further international laws regarding liability and compensation for adverse effects
caused by damage to the environment, through activities found in their jurisdiction or under their control, in areas
outside the national jurisdiction.
31
Principle 16 of the Rio Declaration: The national authorities should make efforts to promote the
internalization of environmental costs, and use economic instruments, taking into account the approach according to
which, in principle, the polluter should bear the cost of pollution, with due concern for the public interest, and
without distorting the trade and the international investments.
32
Mario Pea Chacn, La nueva directiva sobre responsabilidad ambiental en relacin con la prevencin y
reparacin de los daos ambientales y su relacin con los regimenes latinoamericanos de responsabilidad
ambiental, Revista Electrnica de Derecho Ambiental Medio Ambiente & Derecho 12-13 (2005),
http://huespedes.cica.es/aliens/gimadus/
According to authors specialized on the matter
33
, the Directive is the result of 15 years of
attempts to change and adapt the liability regime to the specificity of environmental damage and
to exploit developments in this context, especially in the prevention and remedying area; it is an
attempt of green revolution of the tort liability system. By this normative act, the European
Community has known for the first time in its history, a regulation dealing, in a horizontal and
systemic manner, the problem of preventing and remedying the environmental damage.
The Directive succeeds to establish reference points for the harmonization of the national
legislation on measures for preventing and remedying environmental damage at EU level, ensuring
a minimum level of legal and administrative rules, on the matter.
It should be noted that Directive 2004/35/EC does not establish a civil liability regime, but rather
a regime of responsibility of public character, a specific responsibility, mainly of administrative nature,
which involves important procedural differences from the classical civil liability
34
.
In this respect, the Directive establishes a two-step procedure for resolving the claims of
environmental damage and those on the imminent threat of such damage
35
.
Thus, under Article 12, first of all, the request, accompanied by relevant information and
data on the environmental damage, must be addressed to the competent authority
36
, asking it to
take the appropriate measures established by the Directive. If the request for action and the
accompanying observations indicate, in a plausible manner, the existence of environmental
damage, the competent authority shall examine these comments and the request for action. In such
cases, the competent authority gives the operator the opportunity to express his opinion on the
request for action and on the accompanying observations. The Directive requires the competent
authority to inform the applicant as soon as possible and in accordance with the relevant provisions
of the national law, of its decision to accept or reject the request and the grounds on which it is
based; Member States have, though, the possibility to decide that these requirements do not apply
to an imminent threat of damage.
Article 13 of the Directive presents the second stage of processing requests, namely, the
review procedures. Thus, decisions, documents or the refusal to act of the competent authority may
be challenged before a court or other public body which is independent and impartial.
With regard to the active capacity to pursue proceedings, three alternatives are provided, and
each Member State must implement the alternative corresponding to its legal system:
- persons affected or potentially affected by damage;
- persons who have a sufficient interest in taking a decision on the damage;
- persons claiming a right violation.
The Directive establishes that preventing and remedying the environmental damage must be
implemented in accordance with the polluter pays principle and with the sustainability principle.
Thus, the fundamental principle of the directive should be that the operator whose activity has
caused environmental damage or imminent threat of such damage should be held financially liable,
in order to determine operators to adopt measures and develop practices to reduce the risks of
environmental damage so as to reduce exposure to implicit financial risks.
33
Mircea Dutu, Prevenirea i repararea pagubelor de mediu potrivit Ordonan ei de urgen a Guvernului
nr. 68/2007, Law Review 11 (2007): 10.
34
Berthy van den Beoek, Environmental Liability and Nature Protection Areas. Will the EU Environmental
Liability Directive actually lead to the restoration of damaged natural resources?, Utrecht Law Review, Volume 5,
1 (2009): 117; Mircea Dutu, Tratat ..., 492
35
Monica - Elena Otel, Rspunderea interna ional n domeniul mediului,, (Bucharest, Legal Universe
Publishing House, 2009), 304.
36
Article 11, paragraph (1): Member States designate the competent authority or authorities responsible for
fulfilling obligations under this Directive.
Andrada Trusca 85
The content of the directive provides in Article 1, the goal of its adoption, namely,
establishing a liability framework for environmental damage based on the polluter pays
principle, in order to prevent and remedy environmental damage, and in Article 2, it defines the
concepts that it uses.
Article 3 of the Directive regulates its scope, creating two forms of liability, namely
37
:
First, an objective liability for dangerous or potentially dangerous occupational activities
listed in Annex III, which allows covering the environmental damage, and secondly, a subjective
liability (based on fault) for professional activities not listed in Annex III, allowing liability to
cover only damage to species or habitats protected in the community law.
With regard to dangerous or potentially dangerous occupational activities listed in Annex
III, it must be mentioned that Directive 2004/35/EC has so far incurred two amendments, made, on
one hand, by Directive 2006/21/EC
38
of the European Parliament and the Council of March 15,
2006 on the management of waste from extractive industries and amending Directive 2004/35/EC,
and on the other hand, Directive 2009/31/EC
39
of the European Parliament and Council of April
23, 2009 on the geological storage of carbon dioxide and amending Council Directive
85/337/EEC, Directives 2000/60/EC, 2001/80/EC, 2004/35/EC, 2006/12/EC, 2008/1/EC and
Commission Regulation (EC ) no. 1013/2006 of the European Parliament and Council.
In this respect, the two directives bring changes to the list with dangerous occupations, in
Annex III, by the insertion of two activities, as it follows:
Directive 2006/21/EC introduces the activity of managing the extractive waste ;
Directive 2009/31/EC introduces the activity of operating sites for geological storage of
carbon dioxide.
Regarding the transposition of the two Directives, Directive 2006/21/EC had as transposing
deadline, the date of May 1st, 2008. So far, only two Member States have not implemented national
measures, namely Estonia and France. Romanias transposition measures are included in the
Government Decision no. 856/2008
40
on the management of waste from extractive industries and the
Government Emergency Ordinance no. 15/2009
41
amending and supplementing Government
Emergency Ordinance no. 68 / 2007 on environmental liability with regard to preventing and
remedying environmental damage. Directive 2009/31/EC requires as implementation deadline, the date
of June 25, 2011, but Member States must make sure that the following storage sites covered by the
directive are operated in accordance with its requirements until June 25, 2012:
- storage sites used in accordance with the law in force, on June 25, 2009
- authorized storage sites in accordance with such legislation before June 25, 2009, provided
that the sites should not be used for more than a year after that date .
So far, only three Member States have transposed the Directive 2009/31/EC into their
national legislation, namely, Belgium, Lithuania and Austria. Until today, Romania has not yet
implemented the directive.
In Article 4 of Directive 2004/35/EC, we find exceptions that are excluded from its scope,
especially those for which, liability is involved under the international instruments listed in
Annexes IV and V, as it follows:
- November 27, 1992, the International Convention on civil liability for oil pollution damage;
- November 27, 1992, the International Convention on establishing an international fund for
compensation, for oil pollution damage;
- March 23, 2001, the International Convention on civil liability for bunker oil pollution
damage;
37
Milena Tomescu, Serban-Alexandru Stanescu, op. cit., 52.
38
O.J no. L102/15 of April 11, 2006.
39
O.J no. L 140/114 of June 5, 2009.
40
Official Gazette. no. 624 of August 27, 2008.
41
Official Gazette. no. 149 of March 10, 2009.
- May 3, 1996, the International Convention on liability and compensation for damages
related to the transport by sea of dangerous and noxious substances;
- October 10, 1989, the Convention on civil liability for damage caused during transport by
road, rail and inland waterway of dangerous goods;
- July 29, 1960, the Paris Convention on civil liability in the field of nuclear energy and the
Brussels Supplementary Convention of January 31st, 1963;
- May 21st, 1963, Vienna Convention on civil liability for nuclear damage;
- September 12, 1997, the Convention for additional compensation for nuclear damage;
- September 21st, 1988, the Joint Protocol on the implementation of the Vienna Convention
and Paris Convention;
- December 17, 1971 the Brussels Convention on civil liability in maritime transport of
nuclear material.
Also, the Directive does not apply to activities that have as main purpose the national
defense or the international security, or to activities conducted to protect from natural disasters.
Regarding the preventive measures, under Article 5, if an environmental damage has not yet
occurred, but there is an imminent threat of such damage, the operator must take the necessary
preventive measures, and the Member States must foresee any situation where an imminent threat of
environmental damage is not eliminated despite preventive measures taken by the operator, in order for
the operator to inform, as soon as possible, the competent authority on all relevant aspects of the
situation.
Article 6 refers to the act of repair, so that in case of environmental damage, the operator
must inform without delay the competent authority on all relevant aspects of the situation and take
all practical measures to control, limit, eliminate or manage immediately, the relevant
contaminants and / or any other damage factors in order to limit or prevent further environmental
damage and harm to human health or further deterioration of services.
Regarding the application in time, the Directive does not apply in three cases expressly
stipulated in the Article:
- damage caused by an emission, event or incident that occurred before April 30, 2007;
- damage caused by an emission, event or incident that occurred after April 30, 2007, in case
it resulted from a specific activity that occurred and ended before that date;
- damage, if thirty years have passed from the emission, event or incident that caused it.
Regarding the implementation, Member States must implement, under Article 19, laws,
regulations and administrative provisions necessary to comply with the directive, until April 30,
2007, while having the obligation to immediately inform the Commission thereof.
Regarding the transposition of Directive 2004/35/EC, there were a number of decisions of
the European Court of Justice for infringement of obligations, by Member States.
In the context of accession to the European Communities, Member States have undertaken
the obligation to integrate rules of the Community law in their own legal system. In this regard,
each Member State must take measures to make sure that the Community rule can be applied in
the internal law
42
, to ensure the compliance of internal rules with Community rules and also to
correctly apply the Community rule
43
.
42
Depending on the Community act in question, a Member State must go through several stages. For
example, in the case of the directive, as known, it is necessary to transpose it into national law first, and then take
steps to implement it, if necessary. In the case of regulations, they have direct applicability, and there is no need for
transposition, however there are situations when adopting some internal measures to ensure its applicability
becomes necessary.
43
Monica - Elena Otel, Procedura aciunii pentru constatarea nendeplinirii de ctre statele membre a
obligaiilor de decurg din Tratatul CE i dreptul comunitar al mediului, Revista romn de Drept Comunitar, 2
(2006): 55.
Andrada Trusca 87
Since Member States have willingly assumed these obligations, it is natural for them to be
fulfilled; otherwise, the Community treaties establish a procedure by which they are being held
responsible, namely, the infringement by Member States of their obligations, under the Community
law
44
, procedure which is specific to the Community law
45
.
As guardian of treaties, the European Commission shall ensure the correct implementation
of Community law in Member States, and it may even bring to Court an action against a Member
State when it considers that that State has failed to fulfill its obligations, under the treaties
46
.
This action of finding the infringement constitutes, under the doctrine
47
, the control
instrument specific to the Commission, within its powers in relation to Member States, as the
expression of the existing dualism between Member States and Community institutions. By this
mechanism of action for finding infringements of treaties, the Commission shall make sure that
Member States do not exercise powers that they have voluntarily renounced at, in favor of the
Communities.
The infringement of obligations, as we shall see in the next chapter, can be the result of a
positive action, of the inappropriate application of Community regulations, as well as the
consequence of a negative action, namely, the omission of notification of national regulations
transposing and implementing directives, or the noncompliance of the national law with
requirements of the Community rules.
We believe
48
that it is very important that this action provides also a preliminary non-
contentious procedure of resolving disputes between the Commission and Member States, on
the application of the Community law, allowing in this way to amicably resolve the dispute.
This preliminary procedure is a mutual change of views between the future plaintiff and the
future defendant, more specifically, it sets some deadlines for resolving the situation inconsistent
with the Community law; also relevant is that, during the preliminary procedure, the scope of the
future action brought before the Court of Justice
49
is established.
With regard to the procedure purpose, the Court itself has stated repeatedly that it is to give
the possibility to the Member State, on the one hand to remedy, correct or rectify its position
towards the issue brought before the Court and, secondly, to present its defense against complaints
of the Commission
50
.
Any natural or legal person, including any other Member State has the possibility to notify
the Commission. Other sources of information for the Commission are: Member States reports on
the state of transposition of EU directives, the press, MEPs or civil society organizations. The
active capacity to pursue the proceedings and the interest of the Commission do not have to be
proved; in this respect, the Court has stated on several occasions that in exercising powers it has,
based on art. 211 and 226 of the EC, the Commission must not prove a legal interest since, in the
44
In English for this procedure, the term infringement is being used, and in French, en manquement.
45
The legal basis for infringement by Member States, under the Community law, is found in Art. 226 of the
Treaty establishing the European Community
46
Andrada Trusca, Procedura aciunii pentru constatarea nendeplinirii de ctre statele membre a
obligaiilor ce le revin conform dreptului comunitar. Privire special asupra dreptului mediului, Revista
Transilvan de tiine Administrative, 2 (24) (2009): 148.
47
Gyula Fabian, Drept instituional comunitar, Third edition revised and enlarged, with reference to the
Treaty of Lisbon, (Cluj-Napoca, Legal Sphere Publishing House, 2008), 359.
48
Andrada Trusca, op. cit., 149.
49
Gyula Fabian, op. cit., 362.
50
See ECJ Decision of January 31
st
, 1984, Case 74/82, Commission v. Ireland, ECR European Court of
Justice in 1984, p. 00317; ECJ Decision of February 2
nd
, 1988, Case 293/85, Commission v. Belgium, ECR
European Court of Justice in 1988, p. 00305; ECJ Decision of May 10, 2001, Case C-152/98, Commission v.
Netherlands, ECR European Court Justice, 2001 p. I-03463. http://eur-lex.europa.eu/
general interest of the Community, its function is to make sure that treaty provisions are being
applied by Member States and to observe the existence of any infringement of obligations deriving
thereof, in order to stop this infringement
51
.
The importance of this preliminary procedure lies equally in the fact that it is confidential,
leading to the facilitation of the amicable settlement, 90% of the nearly 200 cases per year being
resolved amicably, even before notifying the Court
52
.
Therefore, taking into account the above, we shall try to define the infringement by Member
States, of their obligations under the Community law, as a legal tool at the disposal of some
determined subjects of law, ensuring the compliance by Member States with the Community law,
and punishing conducts inconsistent with its rules.
Thus, in 2008, the European Court of Justice pronounced two decisions for infringement by
a Member State, for not adopting, within the prescribed period, the provisions necessary to comply
with Directive 2004/35/EC, ECJ Decision, dated December 11, 2008
53
in Case C-330/08
Commission v. France and ECJ Decision, dated December 22, 2008
54
in Case C-328/08
Commission v Finland.
In 2009, Courts decisions for infringement targeted five Member States, namely, ECJ
Decision of March 12, 2009
55
in Case C-402/08, Commission v. Slovenia, ECJ Decision of March
24, 2009
56
in Case C-331/08, Commission v. Luxembourg, ECJ Decision dated May 19, 2009
57
in
Case C-368/08, Commission v. Greece, ECJ Decision dated June 18, 2009 in Case C-417/08,
Commission v. United Kingdom and ECJ Decision dated June 18, 2009 in Case C-422/08,
Commission v. Austria.

Conclusions
Romanias accession to the European Union, on January 1st, 2007 imposed the transposition
into the national law, of the Council and European Parliament Directive no. 2004/35/EC on
environmental liability with regard to environmental damage, seeking a common framework for
preventing and remedying environmental damage, at a reasonable cost to society. This was
realized by Government Emergency Ordinance no. 68/2007
58
with the same title, promoting thus
in the internal law, a special, innovative regime of prevention and repair of environmental damage,
of a different nature from the classical liability systems, in which prevention is the priority;
however, in case of damage, the priority is to repair it, which is why some financial guarantees
59

are being established.
51
See ECJ Decision of April 4, 1974, Case 167/73, Commission v. France, ECR European Court of Justice,
1974 p. 00359; ECJ Decision of August 11, 1995, Case C-431 / 92, Commission v. Germany, ECR European Court
of Justice in 1995, p. I-02189; ECJ Decision of November 9, 1999, Case C-365/97, Commission v. Italy, ECR
European Court of Justice, 1999, p. I-07773; ECJ Decision of January 1
st
, 2001, Case C-333/99, Commission v.
France, ECR the European Court of Justice in 2001, p. I-01025, http:// / eur-lex.europa.eu /
52
Augustin Fuerea, Manualul Uniunii Europene, Third Edition, revised and enlarged, (Bucharest, Legal
Universe Publishing House, 2006), 267.
53
ECR European Court of Justice in 2008, Page I-00191.
54
55
56
57
58
Published in the Official Gazette, no. 446 of June 29, 2007, approved by Law no. 19/2008, as amended by
Government Emergency Ordinance no. 15/2009, published in the Official Gazette no. 149 of March 10, 2009
59
Mircea Dutu, Prevenirea.., 9.
Andrada Trusca 89
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Simona-Maya Teodoroiu, Dreptul mediului i dezvoltrii durabile, (Bucharest, Legal
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Cristian Mares, Rspunderea comunitar pentru daunele aduse mediului reglementat de
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Jess Jordano Fraga, La responsabilidad por daos ambientales en el Derecho de La Unin
Europea: Anlisis de la Directiva 2004/35, de 21 abril, sobre Responsabilidad
medioambiental, Revista Electrnica de Derecho Ambiental Medio Ambiente & Derecho
12-13 (2005).
Mario Pea Chacn, La nueva directiva sobre responsabilidad ambiental en relacin con la
prevencin y reparacin de los daos ambientales y su relacin con los regimenes
latinoamericanos de responsabilidad ambiental, Revista Electrnica de Derecho Ambiental
Medio Ambiente & Derecho 12-13 (2005).
Mircea Dutu, Prevenirea i repararea pagubelor de mediu potrivit Ordonanei de urgen a
Guvernului nr. 68/2007, Law Review 11 (2007).
Berthy van den Beoek, Environmental Liability and Nature Protection Areas. Will the EU
Environmental Liability Directive actually lead to the restoration of damaged natural
resources?, Utrecht Law Review, Volume 5, 1 (2009).
Monica - Elena Otel, Rspunderea internaional n domeniul mediului,, (Bucharest, Legal
Universe Publishing House, 2009).
Monica - Elena Otel, Procedura aciunii pentru constatarea nendeplinirii de ctre statele
membre a obligaiilor de decurg din Tratatul CE i dreptul comunitar al mediului, Revista
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membre a obligaiilor ce le revin conform dreptului comunitar. Privire special asupra
dreptului mediului, Revista Transilvan de tiine Administrative, 2 (24) (2009).
Gyula Fabian, Drept instituional comunitar, Third edition revised and enlarged, with reference
to the Treaty of Lisbon, (Cluj-Napoca, Legal Sphere Publishing House, 2008).
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(Bucharest, Legal Universe Publishing House, 2006).
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ELV_cases_impact_RO.pdf
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7CdisplayArticle/articleID_9305/Politici-de-mediu.html
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http://eur-lex.europa.eu/
Andrada Trusca 91
DISCUSSIONS REGARDING THE CONDITIONS OF THE CRIMINAL
RESPONSIBILITY OF THE LEGAL PERSON IN THE REGULATION
OF THE NEW CRIMINAL CODE
Mihai Adrian HOTCA

Radu SLVOIU
1

Abstract
According to the new Criminal code, the legal person, except for the state and the public
authorities, is criminally responsible for the infractions committed for the carrying out of the
activity object or in the interest and in the name of the legal person. The public institutions are not
criminally responsible for the infractions committed for the carrying on of an activity that is not
the object of the private domain. The criminal responsibility of a legal person does not exclude the
criminal responsibility of the natural person that contributed to the committing of the same deed.
In what follows, we will try to present the general conditions regarding the engagement of the
criminal responsibility of the legal persons, filtering through our own analysis various opinions
expressed in doctrine regarding this theme, the purpose of which is the prevention of some non-
unitary solutions in the judicial praxis.

Keywords: new Criminal code, criminal responsibility, legal persons, public institutions,
public authorities, non- unitary solutions.

I. Introduction
The criminal responsibility of the legal person is encountered in more national law systems.
For instance, in the Great Britain, the Netherlands, Belgium, France, the USA etc. In what comes,
we will briefly analyze some of these.
In the Great Britain, the criminal responsibility of the legal person is based on the theory
of identification that implies a mechanism that contains two stages: (1) the analysis of the
constitutive elements of the infraction regarding the natural person doer; (2) the identification, that
is the verification if the natural person that has a certain position within a legal person represents
this ones thinking and will
2
. The criteria based on which the natural persons that are the carriers
of the thinking and will of the legal person are to be identified refer mainly to the idea of authority
and control over it and it is considered that only the deeds committed by the controlling officer
attract the criminal responsibility of the company. To this category belong the natural persons that
have the capacity of manager, director etc. and that participate to the controlling of the legal
person, as well as the officials with similar functions. The theory of identification was criticized,
PhD.Associated Professor, Dean of Faculty of Law, Nicolae Titulescu University, Bucharest.
PhD. Candidate, Nicolae Titulescu University, Bucharest.

1
This work was supported by CNCSIS UEFISCSU, project number PNII IDEI 860/2009- cod CNCSIS
ID-1094.

2
A. Jurma, Persoana juridic subiect activ al infraciunii/ Legal person - active subject of the infraction,
C.H. Beck Publishing house, Bucharest, 2010, page 43.
assuming that the controlling officers could detach (isolate) from the illicit practices of the legal
person that they controlled, so that the criminal responsibility of a certain legal persons should not
be engaged
3
.
In the United States of America, with some exceptions, the criminal responsibility of the
legal person was based on the idea of the respondeat superior. According to this theory, a
company is criminally responsible for the deeds committed by any of its agents or employees, if
two conditions are met. The first condition is that the agent or employee of the legal entity should
have carried on its activity within the limits of its attributions granted by the latter. The second
condition is that that natural person should have totally or partially taken action for the benefit of
the corporation. At present, it is encountered the theory of the aggregation (called also of the
collective consciousness), that was conceived by certain American federal courts and allowed, if
the corporatist will belonged to more natural persons, that all the particles of subjective elements
should be united in a single subjective element, imputable to the legal person. Besides its
innovative character, this theory was not accepted by all the America courts that reproached with it
that the individual cognitive elements could not be comprised in order to make a whole, and if, by
referring it to the involved natural persons, the entire subjective element could not be retained, the
comprising was not possible
4
.
The Netherlands also instituted the criminal responsibility of the legal person, which had a
certain particularity compared to the regulation in our country
5
. One of the elements that
singularize the criminal responsibility of the legal person in the Dutch law is the domain of the
collective entities that are criminally responsible; certain groups of persons that do not benefit
from the legal personality belong also to this category. Then, in order to engage the criminal
responsibility of the collective entity, it is necessary that the criminal responsibility of a natural
person that carries out a function according to the social purpose of the entity should previously be
established.
In the French law, the criminal responsibility of the legal person was introduced through
Criminal code since 1994 (art. 121-2) which was incident, also as in the case of the Romanian law,
only in the case of the entities endowed with legal personality. Although, in the initial form, the
criminal responsibility of the legal person was exclusively incident in the case of the infractions
for which there was a precise provision in this sense (specialty principle), starting with year 2005
(when the Criminal code was modified), it has been instituted the generality rule of the criminal
responsibility of the legal person, without this should be limited to certain infractions. From the
point of view of the conditions necessary for the engagement of the criminal responsibility of the
legal person, the French Criminal code was interpreted in the sense that this form of responsibility
could be engaged only if an infraction had been committed by a representative or organ of the
legal person. It is still accepted that, based on the legislative modifications in 2000 in the case of
the voluntary infractions, the holding criminal responsible of the legal person is possible, no matter
of the previous retaining or not of the conditions of the criminal responsibility of a natural person.
Based on monitoring reports drawn up by GRECO
6
and OCDE
7
, certain conclusions were
drawn regarding the way how the criminal responsibility of the legal persons was regulated in
3
Idem, page 45.
4
In praxis, it was shown that One can not add an innocent mental attitude to another innocent mental
attitude so that the result should be guilt (cause of Armstrong v. Strain), quoted by A. Jurma, quoted work,
page 48.
5
We mention that the criminal responsibility of the legal entities was stipulated in the Dutch law since 1870.
6
Group of States against Corruption set up at the level of the Council of Europe. This Group consists of 45
European states and the United States of America. www.coe.int.
7
www.oecd.org.
Mihai Adrian Hotca Radu Slavoiu 93
various systems of law. Basically, GRECO considers that, at present, its recommendations were
satisfyingly implemented in the member states of the group
8
.
The GRECO evaluation is based on the following main criteria
9
:
Existence of the responsibility of the legal persons (criminal, administrative etc.);
Conditions of the engagement of the criminal responsibility of the legal person and
the deeds for which such a form of responsibility can be engaged (for instance, money
laundering);
Engagement of the responsibility of the legal person no matter of the circumstance
that this managed or not to obtain the benefit had in mind through the corruption act;
If the responsibility of the legal person is engaged also in the case of the lack of
surveillance from the natural person with control attributions;
Existence of some discouraging and proportionate sanctions for the deeds committed
by legal persons;
Possibility of engaging the responsibility of the legal person independent of the
responsibility of the natural person;
Existence of the criminal record for the convictions of the legal persons;
Existence of some measures through which the states assure the effective
sanctioning of the legal persons.
With regard to the OCDE evaluation internationally drawn up through WGB
10
, it is found,
that although there were significant progresses regarding the regulation of the criminal responsibility
of the legal person, there are still some criticisms that can be brought to certain national systems of
law. For instance, it is criticized the discretionary power that the prosecutor in the Australian
legislation has, that can appreciate that, regarding the sanction that is to be applied, the activity of
criminal prosecution is disproportional and consumption of power is not justifying
11
.
With regard to the compared law, at present, we remark the tendency of the European states
to regulate the criminal responsibility of the legal person, tendency determined mainly by the fact
that many conventions and juridical instruments that deal with or recommend such a responsibility
were adopted at the level of the Council of Europe and of the European Union
12
.
Among the documents adopted at the European level that contain references to the criminal
responsibility of the legal person, we mention:
Recommendation R(81)12 of the Council of Europe on the criminality of
business (that accept the possibility of instituting the criminal responsibility of the legal
persons for the infractions committed in the commercial law);
Recommendation R(88)18 of the Council of Europe on the responsibility of the
legal person enterprises for the infractions committed in their activity. Within this
European juridical instrument, the member states are recommended to institute the
criminal responsibility of the enterprises independent on an eventual criminal
responsibility of some natural persons, considering that these have their own guilt distinct
from guilt of the natural persons that also have to answer if the conditions of their
criminal responsibility are met;
Recommendation R(96)8 regarding the criminal policy in an Europe in
transformation;
8
www.coe.int.
9
For additional data, see A. Jurma, quoted work, page 100.
10
Working Group on Bribery (Grupul de Lucru privind Corupia).
11
For more data, see A. Jurma, quoted work, page 105.
12
Among the European states that regulated the criminal responsibility of the legal person, we mention
Denmark, Finland, France, Belgium, the Netherlands etc.
Resolution (97) 24 regarding the 20 directory principals in the fight against
corruption;
Convention regarding the protection of the financial interest of the European
Communities (1995);
Convention regarding the environment protection by means of the criminal law
(1998);
Criminal convention regarding the corruption (1999);
Convention regarding the cybercriminality (2001).
We mention that, through the decision of the Court of Justice of the European Community on
October 2
nd
1991, this court indirectly admits the principle of the criminal responsibility of the
legal persons
13
.
Among the documents adopted at the international level that contain references to the criminal
responsibility of the legal person, we mention:
Convention regarding the fight against the corruption of the foreign public clerks in
the international trading transactions
14
. This convention binds the party states to sanction
also the legal persons with sanctions, even non- criminal (if the responsibility of the legal
person is not instituted), proportionate and discouraging ones;
Convention against the organized transnational criminality concluded in Palermo
(Italia)
15
;
Convention against corruption concluded in Merida (Mexic)
16
.

Specialty literature
Fl. Streteanu, R. Chiri, Rspunderea penal a persoanei juridice/ Criminal responsibility
of the legal person, Second edition, C.H. Beck Publishing house, Bucharest, 2007; A. Jurma,
Legal person subiect activ al rspunderii penale/ Legal person - active subject of the infraction,
C.H. Beck Publishing house, Bucharest, 2010; Fl. Streteanu, Rspunderea penal a persoanei
juridice potrivit Legii nr. 278/2006, n CDP nr. 3/2006/ Criminal responsibility of the legal person
according to Law no. 278/2006, in CDP no. 3/2006; Fl. Streteanu, R. Chiri, Rspunderea penal
a legal persons n dreptul belgian/ Criminal responsibility of the legal persons in the Belgian law,
RDP no. 1/2000; I. Pascu, M. Gorunescu, Rspunderea penal a persoanei juridice n perspectiva
adoptrii unui nou Cod Penal Romn/ Criminal responsibility of the legal person in the perspective
of adopting a new Romanian Criminal code, Pro Lege no. 2/2004; C. Cuneanu, Rspunderea
penal a persoanei juridice/ Criminal responsibility of the legal person, Hamagiu Publishing house,
Bucharest, 2007; G. Antoniu, Rspunderea penal a persoanei juridice/ Criminal responsibility of
the legal person, in R.D.P. no. 1/1996; G. Dimofte, C. Rus, Rspunderea penal a persoanei
juridice/ Criminal responsibility of the legal person, in R.D.P. no. 1/2005; A. Jurma, Rspunderea
penal a persoanei juridice/ Criminal responsibility of the legal person, in R.D.P. no. 1/2003; R.V.
Manca, Rspunderea penal a persoanei juridice/ Criminal responsibility of the legal person, in
R.D.P. no. 3/1998; I. Pascu, Rspunderea penal a persoanei juridice n noul Cod penal/ Criminal
responsibility of the legal person in the new Criminal code, in Pro Lege no. 4/2004; M. Ketty Guiu,
Rspunderea penal a persoanei juridice/ Criminal responsibility of the legal person, Law no.
13
For more references, see N. Iliescu, Noul Cod penal/ New Criminal Code, pages 465-467.
14
Adopted under the aegis of the Organization for Economic Co-operation and Development (OECD), on
December 17
th
1997.
15
Adopted by the General Assembly of ONU in 2000.
16
Adopted by the General Assembly of ONU in 2003.
8/2005; C. Ungureanu, E. Paraschiv, Rspunderea penal a persoanei juridice/ Criminal
responsibility of the legal person, Pro Lege no. 2/2005; D.A. Brudariu, Rspunderea penal a legal
persons. Experiena legislaiei franceze/ Criminal responsibility of the legal persons. Experience of
the French legislation, RDP no. 1/2006; Ghe. Mrgrit, Conceptul de rspundere penal a
persoanei juridice n noul Cod penal/ Concept of criminal responsibility of the legal person in the
new Criminal code, Law no. 2/2005; I. Lascu, Rspunderea penal a persoanei juridice n lumina
noului Cod penal/ Criminal responsibility of the legal person in the light of the new Criminal code,
Law no. 8/2010; H. Diaconescu, Este rspunderea penal a persoanei juridice o rspundere pentru
fapta altuia/ Is the criminal responsibility of the legal person a responsibility for the deed of
another, Law no. 12/2005; C. Balaban, Legal person, subiect activ al infractions i/ Legal person,
the active subject of the infraction, RDP no. 2/2002; V. Mirea, Legal person subiect activ al
infractions i/ Legal person - active subject of the infraction, Law no. 12/2005; S. Bacigalupo, La
responsabilidad penal de las personas juridicas, Bosch, Barcelona, 1998; J.R. Spencer, La
responsabilit pnale dans lentreprise en Angleterre, Revue de science criminelle et de droit
compar, 1997; D.M. Costin, Rspunderea persoanei juridice n dreptul penal romn/
Responsibility of the legal person in the Romanian criminal law, Universul Juridic Publishing
house, Bucharest, 2010.

I. Condition of the criminal responsibility engagement of the legal person
1. Legal personality
1.1. Common aspects
One of the general conditions for the engagement of the criminal responsibility of the legal
person is that the latter should have legal personality. The legal person is a form of organizing
that, meeting the conditions required by the law, is holder of civil rights and obligations. Any legal
person has to have a standalone organization and its own patrimony for the carrying out of a licit
and moral purpose according to the general interest.
The legal persons that are subject to the registration have the capacity to have the rights and
obligations since the date of their registration. The other legal persons have the capacity to have
the rights and obligations, depending on the case, since the date of the setting up document, since
the authorization date of the their setting up or since the date of any other requirement stipulated
by law.
According to art. 219 of the new Civil code, the licit or illicit deeds committed by the
organs of the legal person bind the legal person itself, but only if they are connected to the
attributions and the purpose of the assigned functions. The illicit deeds draw also the personal and
solidary responsibility of those that committed them both to the legal person and to third parties.
According to art. 220 of the new Civil code, the vicarious liability against the
administrators, censors, directors and other persons that took action in their capacity of members
of the organs of the legal person, for the prejudices caused to the legal person by these ones by
violating their duties set in their charge, belongs, in the name of the legal person, to the competent
management organ that will decide with the majority required by law and its absence, with the
majority required by the statutory provisions.
With regard to the entities under setting up or those that ceased their existence by
dissolution, these are not criminally responsible, because the entities under setting up and those
that no longer belong to the category of the legal persons, because they did not obtain or lost their
legal personality, do not have the criminal juridical capacity until the date admitted as the moment
of obtaining the personality. Indeed, we appreciate that the legal persons under setting up are not
criminally responsible, if they commit deeds stipulated by the criminal law, even if a limited legal
personality is recognized from the civil point of view, because this type of personality is
recognized only for the valid setting up of the legal person in question.
In doctrine, it was considered that the criminal responsibility of the legal persons in the
liquidation phase could be engaged for the deeds committed during this phase
17
, arguing as well
as in the French doctrine, that the liquidated legal persons kept their legal capacity necessary for
the turning of the assets into money and the payment of the liabilities
18
.
The criminal responsibility of the legal person is direct and personal, which means that the
eventual right to sue for compensation of the legal person against its official in charge exceeds the
criminal legal report of conflicts
19
. The right to sue for compensation of the legal person against
the natural person that is responsible for the committing of the infraction is exercisable based on
the tort liability.
Based on the territoriality principle of the criminal law, wee must admit that the foreign
legal persons that commit infractions of the territory of Romania will also be criminally
responsible according to the Romanian criminal law
20
.

1.2. Particular aspects
The legal persons of private law obtain the legal personality based on its particularity,
which are usually classified in two large categories: legal persons with lucrative purpose and
legal persons without lucrative purpose (non-profit).
In the case of the trading companies, cooperative companies, agricultural companies, co-
operative organizations, groups of economic interest, European groups of economic interest,
national companies and autonomous administrations, the legal personality is obtained starting with
the registration date with the trade register office.
The trading companies that are illegally set up, but registered with the trade register office,
have a special situation. Considering that the illegally set up trading companies obtained the legal
personality and that the eventual finding of its nullity according to art. 58 of Law no. 31/1990
produces effects only for the future, we consider that their criminal responsibility can be
engaged
21
. In exchange, the legal person can not be subject of the criminal responsibility, because
it has no legal personality, which is a condition that has to exist in law and not in facts when
committing the deed stipulated by the criminal law
22
.
The legal persons of private law without lucrative purpose are legal persons set up with
nonprofit finality and are set up in order to carry on certain activities of general non- patrimonial
interest of some collectivities or some natural persons. That is associations, foundations, trade
unions, employers, political parties, religious or ethnical organizations.
According to art. 8 paragraph (1) of Government Ordinance no. 26/2000, the associations
and foundations obtain the legal personality since their registration in the association and
foundation register of the court registry, and the federations since their registration in the
federation register of the tribunal registry. The loss of the legal personality of these persons takes
place at the dissolution.
17
A. Jurma, quoted work, page 122.
18
Idem, 123.
19
I. Poenaru, Problemele legislaiei n domeniul contraveniilor/ Legislation problems in the domain of
contraventions, Lumina Lex Publishing house, Bucharest, 1998, pages 55-56.
20
D.M. Costin, Rspunderea persoanei juridice n dreptul penal roman/ Responsibility of the legal person in
the Romanian criminal law, Universul Juridic Publishing house, Bucharest, page 273.
21
Idem, page 282. See also Gh. Piperea, Obligaiile i rspunderea administratorilor societilor comerciale/
Obligations and responsibility of the trading company administrators, All Beck Publishing house, Bucharest, 1998,
page 51.
22
For the same opinion, see M. Costin, quoted work, page 284.
We state that the associations, foundations and other legal persons without lucrative
purpose are criminally responsible even if they were pronounced of public utility, because they do
not become authorities or public institutions through this capacity.
According to art. 1 of Law no. 14/2003, the political parties are legal persons of public
law. They obtain the legal personality since the resolution through which the registration petition
is admitted remains irrevocably (art. 22). The political parties cease their legal existence through
dissolution or through the order of the Constitutional Court or through a court order in the cases
and under the conditions stipulated by law. Although, by law, the political parties are legal persons
of public law, the legislator did not except them from the criminal responsibility, but it excluded
only their application against certain complementary punishments, that is dissolution and activity
suspension.
The trade unions and the employers obtain and lose the legal personality under the
conditions stipulated by Law no. 54/2003 (of the unions) and no. 54/2004 (of the employers). As
well as in the case of the political parties, neither the unions nor the employers can be applied the
dissolution and activity suspension.
The religious organizations and those belonging to the national minorities have a
criminal legal regime similar to that applied to the political parties, trade unions and employers,
because the complementary punishment of dissolution and activity suspension can be applied
neither in their case. The religious cults can be admitted as legal persons through a government
resolution and the loss of this capacity takes place also through such a resolution in the cases and
under the conditions stipulated by law (Law no. 489/2006). Except for the religious cults, it can be
set up religious associations that obtain the legal personality at their registration in the Religious
association register with the court.
The legal persons that carry on activities in the media field, no matter of the legal form
[of public law (for instance, Societatea Romn de Radiodifuziune Law no. 41/1994) or of
private law], are criminally responsible, but they can not be applied three of the complementary
punishments: dissolution, activity suspension and shutting down of some bias points.

2. Legal capacity
a) Preliminary explanations. The second general condition for the criminal responsibility
of the legal person to be able to be engaged is that this should not belong to the excluded category,
because not all the legal persons are criminally responsible. The state and the public authorities
are not criminally responsible, because they do not have the criminal legal capacity, so that they
can not enter such reports of criminal responsibility in their capacity of passive subjects. The
public institutions are also not criminally responsible for the infractions during the carrying on of
an activity that can not be the object of the private domain.
We mention that it results from the legal text that the legal persons, except for those
particularly excerpted, are criminally responsible no matter if they are of public or private law.
Also according to art. 221 of the new Civil code, if not otherwise ordered by law, the legal persons
of public law are bound for the licit or illicit deeds of their organs under the same conditions as the
legal persons of private law.
b) State. The exclusion of the state from the sphere of the legal persons that are criminally
responsible is justified by the fact that the state is among the only legal persons that can not be
abolished and, on the other side, this is the only active subject of the reports of criminal
responsibility. The state also can not be sanctioned, because in case of the fine, the only main
punishment applicable to the legal persons, this would make a payment by itself
23
. Besides, neither
23
M. Basarab, V. Paca, Gh. Mateu, C-tin Butiuc, Codul penal comentat/ Commented criminal code, vol. I,
the complementary punishments can be applied when it comes to the state, because the activity of
the state can not be suspended, this can not be dissolved, it does not participate to the public
auctions etc.
Therefore, in our legal system, the state is not criminally responsible and there are no
reasons to suggest de lege ferenda the instituting of such a responsibility, no matter of the deeds
that it can be charged with. Still, the state can be responsible in the field of other branches of the
(civil, international etc.) law.
Besides, except for Denmark, in the Criminal code of which, art. 27, it is stipulated the
possibility of engaging the criminal responsibility of the state for infractions that were not
committed while carrying out the attributions regarding the public power
24
and some states of
common law
25
, the other legislations exclude de plano the criminal responsibility of the state.
The exclusion of the state from the category of the legal persons that are criminally
responsible is based also on the provisions of the second Protocol of the Convention regarding the
protection of the financial interests of the European Communities that stipulates in art.1 lit. d) that
the legal person is any entity that has this statute based on the applicable national law, except
for the states or other public entities in the exercise of their public power prerogatives and the
international public organizations.
c) Public authorities. In the Constitution, there are important provisions regarding the
public authorities. The fundamental law stipulates that the public authorities are: the Parliament
(Chapter I, art. 61-79), the President of Romania (Chapter II, art. 80-101), the Government
(Chapter III, art. 102-110), the Public administration (Chapter V, art. 116-123), the Judiciary
authority (Chapter VI, art. 124-134).
The type of public authorities that belong to the central specialty public administration includes
the ministries, the specialty organs organized in the subordination of the Government, the specialty
organs organized in the subordination of the ministries, the specialty organs organized as autonomous
administrative authorities, armed forces, Supreme Council of National Defense, Court of Accounts.
The local councils elected from communes, towns and administrative- territorial
subdivisions of the municipalities (art. 120), the elected mayors (art. 121), the elected county
councils (art. 122) and the prefect (the prefects office) appointed in each county and in Bucharest
municipality that is the local representative of the Government and runs the decentralized public
services of the ministries and other organs of the central public administration in the
administrative- territorial units (art. 123) belong to the category of the public authorities that
belong to the local public administration.
The courts of law (art. 126-130), the prosecutors offices that function with them (art. 131-
132) and the Superior Council of Magistracy (art. 133-134) belong to the judiciary authority.
The expression of public authority is defined in art. 2 paragraph (1) lit. b) of Law no.
554/2004: any organ of the state or of the administrative- territorial units that act in regime of
public power for the satisfying of a legitimate public interest is assimilated to the public
authorities, in the sense of the current law (s.n.), the legal persons of private law that, according to
the law, obtained the statute of public utility or are authorized to provide a public service in regime
of public power. Because the assimilation is made only in the sense of Law no. 554/2004, we
believe that it can not be extended also to the domain of the criminal law.
d) Public institutions. According to art. 135 paragraph (1): The public institutions are not
criminally responsible for the infractions committed while exercising an activity that can not be
Partea general/ Generalities, Hamangiu Publishing house, page 104.

24
S. Bacigalupo, La responsabilidad penal de las personas juridicas, Bosch, Barcelona, 1998, page 336.
25
For instance, in the Great Britain, the Crown (state, government and ministries) can be penal responsible
in the case of the infractions created on the jurisprudential way and in other cases stipulated by law.
the object of the private domain. In the drawing of the previous Criminal code, it is stipulated
that it is not criminally responsible the public institutions that carry on an activity that can not be
the object of the private domain. It is observed that the editors of the new Criminal code took
into consideration the suggestion made in the specialty literature regarding the previous
formulation that was not considered corresponding
26
.
The difference consists in the fact that, under the previous Criminal code, the immunity was
determined by the capacity of the subject (personal immunity), while the new Criminal code
connects the immunity to the particularity of the committed infraction (real immunity). Therefore,
the public institutions even those that carry on an activity that can not be the object of the private
domain will criminally be responsible for those infractions committed in the carrying on of an
activity opened at the private initiative (for instance, a public institution that mainly carries on an
activity excluded to the private domain will be criminally responsible for the infractions
committed in the carrying on of a secondary activity allowed to the private domain such as the
activity of assuring the meals for the employed personnel).
Which are the public institutions that carry on activities that can not be the object of the
private domain? They are those that carry on an activity excluded to the private domain, which
means that they can not be carried out by natural persons or legal persons of private law
27
.
Basically, such institutions are relatively difficult to identify, because at least a part of the
institutions that carry on activities that can not be the object of the private initiative can be
included also in the category of the public authorities. We believe that, in every case, the judicial
organs have to check the legal provisions applicable to the legal person in question and if it finds
that the infraction was committed while exercising an activity that can not be the object of the
private domain, it will exclude the possibility of the criminal responsibility and if the infraction
was committed while exercising an activity that can be the object of the private domain, the
judicial organ will consider the legal requirement as carried out and will order consequently.
It is public institutions, for instance, National Institute of Magistracy, Mina Minovici
Institute of Legal Medicine, Institute of Forensic Expertise, National Institute for the Training and
Improvement of the Attorneys, National Bank of Romania, Romanian National Bar Association,
National Union of the Notaries Public from Romania, Institute of Public Health in Bucharest etc
28
.
For instance, the state universities or other institutions of public law that carry on activities that
can be the object of the private initiative is not in the sphere of the legal persons excluded from the
criminal responsibility.
The autonomous administrations can not be included in the category of the public
institutions, even if these have a mixed juridical nature (of private and public law), because art.
136 of the Constitution stipulates these distinctly, so that all the administrations can be
responsible, no matter if they carry on or not the activity in a domain that is excluded to the private
initiative. For instance, the administrations of local transportation, Autonomous Public Service
Undertaking "State Mint of Romania, Autonomous Administration Monitorul Oficial etc
29
.
26
Fl. Streteanu, Cteva consideraii privind rspunderea penal a persoanei juridice potrivit proiectului de
lege pentru modificarea i completarea Codului penal/ A few considerations regarding the criminal responsibility of
the legal person according to the bill for the modification and completion of the Criminal code, CDP no. 1/2005,
page 42. See also Fl. Streteanu, R. Chiri, Rspunderea penal a persoanei juridice/ Criminal responsibility of the
legal person, Second edition, C.H. Beck Publishing house, Bucharest, 2007, page 395.
27
See also Fl. Streteanu, R. Chiri, quoted work, page 395.
28
According to the definition formulated by Univ. Prof. Dr. D. Apostol Tofan, the public institutions are:
the subordinated structures of some authorities of the public administration that function from budget incomes, but
also from extra- budgetary sources (Administrative law, vol. I, Second edition, C.H. Beck Publishing house,
Bucharest, 2008, page 6).
29
For this opinion, see Fl. Streteanu, R. Chiri, quoted work, page 396-397.
On the other hand, the legal persons of private law can be criminally responsible, no
matter of the type of activity that it carries on by observing the limitations set by the law. So, for
instance, according to art. 141 of the Criminal code, the dissolution and suspension of the activity
or of one of the activities of the legal person can not be applied to the political parties, trade
unions, employers and religious organizations or to the organizations of the minorities set up
according to the law and nor to the legal persons that carry on their activity in the media field.
They will be criminally responsible, if also the other conditions stipulated by law, for
instance, the following categories of legal persons: associations, foundations, trade unions, trading
companies, cooperative companies, agricultural companies, groups of economic interest,
autonomous administrations etc. are met.

3. The committing of the infraction in the carrying out of the activity object or in the
interest or in the name of the legal person
A third general condition for the engaging of the criminal responsibility of the legal persons
is that the infractions should be committed in the carrying out of the activity object or in the
interest or in the name of the legal person
30
.
It is noticed that the Romanian lawgiver regulated the criminal responsibility of the legal
person based on the general clause (responsibility) system or the general responsibility model,
because especially in the common law, according to which the legal person can be criminally
responsible for any infraction, without the exclusion de plano of some infractions. Of course,
certain infractions, such as rape, false testimony, etc. can not conceptually be committed by the
legal person.
Regarding this condition, it has to be solved the matter of the content of the connection
between the natural person that performs the act of conduct of the infraction and the legal person,
because, according to art. 135 Criminal code, in order to engage the criminal responsibility of the
legal persons, it is necessary that the infractions should be committed during the carrying out of
the activity object or in the interest or in the name of the legal person. The legal text does not
contain the criteria based on which it should be identified the persons that commit infractions
either for the turning into practice of the activity object or just for the use or in the interest of the
legal person.
In order to commit an infraction in the carrying out of the activity object, we should
understand that an organ, official in charge
31
or representative of the legal person committed an
infraction while turning into practice the activities that the legal person could carry on according to
the law or the constitutive deeds. For instance, to this category, belong the infractions at the
competition regime, infractions in the work field, etc. In any case, as it was remarked in the
doctrine, the evaluated deeds had to have connections to the general policy of the legal person or
to the main activities meant to carry out the object of the company, and not to the deeds resulted
30
In the judicial praxis, it was considered that the deed had been committed for the carrying out of the
activity object, retaining the following: regarding the license agreement for the program Autodesk Map 3D 2006,
the indicted company had the right to install and use the program in discussion just for a computer with the
possibility of activating (upgrading) to the latest annual version under the conditions of paying up the subscription.
The defendant B.I. sustained that the programs identified on the occasion of the control by the police organs had
been installed by him in order to test their functionality; he also showed that he had personally proceeded to the
reproduction of the computer programs on the functional units inside the bias point. The defendant B.I. also
sustained that he was the only one that was dealing with the management of the company (High Court of Cassation
and Justice, pen. s, dec. no. 4034/1999, www.scj.ro).
31
According to art. 1373 paragraph (2) of the new Criminal code: The principal is the one that, based on an
agreement or on the law, carries out the direction, surveillance and control on the one that carries out certain
functions or duties in its interests or the interest of the latter.
from activities indirectly connected to this object
32
. The official in charge is a person that carries
out an assignment or position in the interest of the legal person and the legal person will be
criminally responsible if the deed committed by it is connected to the attributions or the purpose of
the assigned positions.
Starting from the specialty rule of the usage capacity, the Romanian lawgiver had in view
only the activities specific to the activity object of the legal person, either that this was the main
one or it was one of the secondary ones. For instance, if a legal person, the activity object of which
is artistic business management, commits deeds of human trafficking for the purpose of
prostitution practice.
An infraction is committed in the interest of the legal person in all the cases when the -
material or moral benefit obtained from the infractions comes, totally or partially, to the legal
person, although the infraction is not committed for the carrying out of the activity object. With
reason, it is considered that an infraction is committed in the interest of the legal person also when
the benefit consists in preventing a loss
33
. Among the infractions that can be committed in the
interest of the legal person, we mention drug trafficking, human trafficking, smuggling, money
laundering, etc.
A problem of law raised already in our doctrine is that of the solution for the hypothesis
when a natural person commits an infraction for the carrying out of the activity object, but for the
exclusive benefit of that natural person (or of some other person) or even against the interests of
the legal person
34
. Starting from the idea that the three hypotheses the committing of the
infraction for the carrying out of the activity object of the legal person in the interest of the legal
person or in the name of the legal person are not cumulative conditions, but they are three
alternative situations, we consider that the criminal responsibility of the legal person can be
engaged any time the conditions of at least one of the hypotheses are met, no matter of the
circumstance that the deed was committed or not also in the interest of the legal person or if it was
committed or not in its name, of course, by meeting the objective and subjective conditions
stipulated by law for the charged infraction.
In the sense of the criminal law, an infraction is committed in the name of the legal person
if the natural person that commits the material element of the deed acts in its capacity of official in
charge or representative of the legal person, officially assigned without the deed to have been
committed in the carrying out of the activity object or for the benefit of the legal person in
question.
According to the project Corpus Juris, in order for the illicit activity of a natural person to
engage the criminal responsibility of the legal person, it is not required the condition of an official
appointment in a decision, representation or control position, it is enough that the natural person
should act in the name of the legal person or it should have had such a legal or actual power.
Another problem of law is that of establishing the legal solution for the hypothesis when a
natural person commits a deed stipulated by the criminal law in the name of a legal person, but
contrary to this ones interest. For instance, the committing of an infraction of money laundering
exclusively in the name of a trading company by a representative of the company, without a direct
connection to the carrying out of the activity object, in the interest of one of the shareholders of the
trading company.
As far as we are concerned, because the three hypothesis stipulated by art. 135 are not
cumulative, we appreciate that the legal solution is that that neither the lack of connection to the
32
Fl. Streteanu, R. Chiri, quoted work, page 400.
33
Idem, page 400. See also D.M. Costin, quoted work, page 356.
34
activity object, nor the circumstance that the deed was committed contrary to the interests of the
legal person have relevance, as long as that deed was committed in the name of the legal person.
But, we state that, even if a deed stipulated by the criminal law is committed in the name of a legal
person, it is possible that this should engage exclusively the criminal responsibility of the natural
person, especially when the interests of the legal person are damaged while committing the
infraction, but not because the deed is against this ones interests, but because it is possible that the
content of the subjective element should not be carried out, because the guilt, as we will see, is
reported to the attitude of some natural persons within the legal person.
As a result of the analysis of the legal text, as it was already found in doctrine, it is noticed
that the three categories of infractions in the carrying out of the activity object of the legal person
in the interest of the legal person or in the name of the legal person interpenetrate
35
, because the
deeds that are committed in the carrying out of the activity object in the interest and in the name of
the legal person. For instance, the committing of an infraction of human trafficking by the director
of a trading company, the object of which is the transportation of persons, is an infraction that can
be included in any of the three categories.

4. Criminal guilt of the legal person
For the engagement of the criminal responsibility of the legal person, art. 19
1
of the
previous Criminal code stipulated that the deed had to be committed with the form of guilt
stipulated by the criminal law. As we have already said it, the new Criminal code no longer
resumed this mention, but not because the guilt was not a condition for the engaging of the
criminal responsibility of the legal person, but because the mention would have been useless,
because art. 16 paragraph (1) Criminal code established that the deed no matter if it was
committed by a natural person or a legal person (s.n.) was an infraction only if it had been
committed with the form of guilt stipulated by the criminal law.
The guilt of the legal person is reported to this ones organs and organization and it can be
said that the establishing of the guilt of the natural persons that form the organs of the legal person
is equivalent to the establishing of the guilt of the legal person in question. If the deed is not
committed by the organs of the legal person, but by its representatives or officials in charge, the
guilt of the legal person is established by reporting to the attitude of its organs. The existence of
guilt or of its form or modality will result from the objective aspects of the way how the
resolutions were adopted by the management organs of the legal person or from the existing
known or tolerated practices within the activity of the legal person. Although, basically, it can be
affirmed that the guilt of the natural person in the management of the legal person proves also the
latters guilt, nevertheless, we believe that the judicial organs have to establish the existing rules
and practices within the organization and functioning of that legal person and, based on the
findings, if it results that the organs of the legal person ordered, knew or did not prevent the
committing of some infractions based on the instruments at hand, then it can be engaged the
criminal responsibility of the legal person, if the form of guilt required by law for the examined
infraction is carried out.
In the case of the deliberate deeds, it is necessary the preexistence of a decision of the legal
person, based on which the deed stipulated by the criminal law was committed. In the case of the
voluntary infractions, the guilt is established by verifying the way of carrying out the obligations
of the legal person. For instance, if the infraction was determined by a not corresponding
organizing. In the hypothesis of the criminal responsibility of the legal person for the voluntary
deeds, it is considered that this is possible no matter if the guilt of a natural person is or is not
35
Fl. Streteanu, R. Chiri, quoted work, page 401.
established, because the guilt is reported to the attitude of the organs of the collective entity in
question
36
.
With regard to the infractions committed by other persons than the organs of the legal
person, it is necessary for the existence of the infraction that the legal person should have known
or should have had to know about the criminal activity carried on by the natural person. Therefore,
the criminal responsibility of the legal person is excluded when the infraction is unexpectedly
committed by an official in charge of the legal person or if the criminal deed does not belong to a
practice tolerated or approved by the legal person. Also, if the legal person created a well
organized system of surveillance and control that was able to prevent the committing of infractions
in a responsible way, the liability of the legal person is excluded.
In doctrine, it is considered that, as long as the guilt of the legal person is an element
distinct from the guilt of the natural person, which is separately analyzed, we have to admit that
the guilt of the two persons can be the same (with the same form or modality) or different
37
.
It can be talked about the same form of guilt when both the legal person and the natural one
act voluntarily or deliberately. For instance, if the members of the board of directors of a legal
person made the decision to misappropriate the activity object for the purpose of carrying on
activities of human trafficking and the same subjective attitude to this activity had also the natural
persons involved in the putting into practice of the resolutions of the board of directors. Another
example that can be retained here is that when, in a work accident that led to the death of more
persons, both the natural person that operated the device that ran out of order and caused the
accident and the management organs of the company that did not perform the training regarding
the work safety had a guilty attitude.
In doctrine, there are also examples in the sense that the form of guilt with which the legal
person and the natural person act can be different. For instance, the employee that constantly
disposes with intention wastes that are polluting and the legal person for which this works does not
know (through its organs) about the activity of its official in charge, but it is found a repeated
negligence with regard to the surveillance of the activity of the employees.
In the cases presented above as examples, the material doer the negligent employee or the
dishonest one will be criminally responsible in their capacity either of participants or of sole
doer, depending on the case, because it is possible that the legal person should not be criminally
responsible as well as the situation that the natural person in the management of the legal person
should not be drawn criminally responsible. So, the criminal responsibility of the legal person can
coexist together with the responsibility of the natural person that has the capacity of organ of the
legal person and that of the natural person that performed the material element of the infraction,
but the three categories of subjects can be also in other positions. For instance, the legal person is
not criminally responsible, but the two natural persons are. Or, the legal person and the material
doer are criminally responsible, without that the natural person that runs the legal person should be
criminally responsible. It is also possible that only the legal person should be criminally
responsible
38
.
Regarding the evidence of guilt, it is shown in doctrine that this is made indirectly by
proving the guilt of the organs of the legal person.
36
D.M. Costin, quoted work, page 373.
37
Fl. Streteanu, R. Chiri, quoted work, page 403. In doctrine, it was expressed also the opinion according
to which the guilt of the legal person was identical to the guilt of the natural person (M. Basarab, V. Paca, Gh.
Mateu, C-tin Butiuc, Commented criminal code, vol. I, Generalities, Publishing house Hamangiu, page 126-127)
38
Idem, page 406. The authors give as example the case in which the decision at the level of the legal person
was made through secret vote, with majority of votes, and the identity of the persons that agreed to that decision can
not be established.
II. Correlation of the criminal responsibility of the legal person with the
criminal responsibility of the natural person
We underline the fact that, by introducing the criminal responsibility of the legal person,
the Romanian lawgiver did not want to make an umbrella under which the natural persons that
had carried out the material element of the infraction should take refuge. On the contrary, in art.
135 paragraph (3) Criminal code, it is stipulated that the Criminal responsibility of the legal
person does not exclude the criminal responsibility of the natural person that contributed to the
committing of the same deed. Analyzing the hypotheses under which it is raised the issue of the
criminal responsibility of the legal person and based also on the practice experience of other states,
we find that, excluding certain exceptional situations, usually the natural person regarding which
the objective aspects of the deed stipulated by the criminal law are met, while the legal person in
connection to which the infraction was committed is sometimes criminally responsible and there
are, very rarely, cases when the legal person is exclusively criminally responsible. The possibility
of the exclusive criminal responsibility of the legal person results from the provisions of art. 135
paragraph (3) Criminal code according to which the criminal responsibility of the legal person
does not exclude the criminal responsibility of the natural person.
Based on these legal provisions, it can be said that the criminal responsibility of the legal
person can be cumulated to that of the natural person, but it does not presume it, so that there can be
cases when the legal person is criminally responsible, although the judicial organs did not manage to
retain the conditions of the criminal responsibility in the charge of a natural person. In such
situations, in doctrine, it is discussed about the way how the existence of the conditions of criminal
responsibility of the legal person can be established in the absence of referring to a natural person
39
.
As far as we are concerned, we appreciate that the establishing of the criminal
responsibility of the legal person presumes in all case the reference to one or more natural persons
that carried out the material element of the deed stipulated by the criminal law. Without such a
reference, the engaging of the criminal responsibility of the legal person would be arbitrary. For
instance, in case the decision belongs to a collective organ and it can not be established which of
the natural persons took part to the decision making, the legal person is criminally responsible only
if a natural person set into practice the resolution of the collective organ of the legal person. The
performer natural person is criminally responsible only if it committed the deed with the
form of guilt stipulated by law, but the legal person will be criminally responsible irrespective of
the criminal situation of the natural person, because the deed was committed for sure with guilt.
Also, if the decision of the collective organ carries out by itself the objective elements of an
infraction, the material element of the deed is also attributed to some natural persons, so that the
carrying out of the objective aspects of the deed are appreciated based on the natural persons
participating to the decision making in question. In case the deed stipulated by the criminal law is
attributed to a collective organ and it can not be established that at least a part of the natural
persons that make this organ committed the deed with the form of guilt required by the law,
therefore, the criminal responsibility of the legal person will be also excluded.
We mention that, although the criminal responsibility of the legal person can be engaged
without retaining the criminal responsibility of at least a natural person, the subjective aspect has
to be charged to at least one natural person every time, even if its identity can not be established
(in the case of the collective organs, for instance).
Unlike other legislations that stipulate the exclusion of the plurality of the criminal
responsibility of the legal person and of the criminal responsibility of the natural person, we
39
believe that our legislation sets the rule according to which the criminal responsibility of the
natural person and of the legal person are not excluded, but they are cumulated
40
.
Based on the principle of the personal character of the criminal responsibility, the legal
person can not sue for compensation in order to ask for the payment of the paid criminal fine, but
it will be able to request from the natural person doers compensations based on the tort liability.
The associates of the legal person also can not be made to be responsible for the criminal fines
applicable to the entity in relation to which they have the capacity of associates, because the
principle of the criminal responsibility personality may be broken, and the solution is the same
including in the case of those legal persons within which the associates are unlimited or solidary
responsible
41
.

Conclusions
Comparatively analyzing art. 135 of the new Criminal code with the previous equivalent
text introduced in the criminal legislation through Law no. 278/2006, we find that the principles
of the previous regulation were kept. So, it was mentioned the concept of the liability of the legal
person for any infraction, the existence condition of the legal personality as premises for the
engaging of the criminal responsibility of the collective entities, the possibility of the plurality of
the criminal responsibility of the legal person with the criminal responsibility of some natural
persons, etc.
Compared to the previous regulation, the lawgiver operated the restrain of the criminal
immunity of the public institutions that carry on an activity that can not be the object of the
private domain and limited it to the infractions committed during the carrying on of such activities.
There were also modifications with regard to the individualization of the sanctions applicable to
the legal person determined by the introduction of the day- fine system for the natural person.
On the other hand, to the complementary punishments applicable to the legal persons, it
was introduced a new such punishment, that is, the placement under surveillance, that can be
applied to the legal person according to the conditions stipulated by law.
There are also other modifications that aim at the conditions of the criminal responsibility
of the legal person. Firstly, we notice that compared to the previous regulation that was not clearly
enough, in the new Criminal code, the types of the legal persons that are not criminally responsible
are stipulated more clearly. Secondly, the new Criminal code did not resume the provision
regarding the subjective element
42
, because it was set through art. 16 paragraph (1) of the new
Criminal code that the Deed is an infraction only if it was committed with the form of guilt
required by the criminal law. Therefore, such an explanation was useless.

40
In the Belgian law, for example, in the case of the voluntary infractions, the plurality of the criminal
responsibility of the legal person is excluded, because in such a situation it is applied the exclusive rule of the
person that has the severer guilt (for more data, see A. Jurma, quoted work, page 148). For instance, according to
art. 5 of the Belgian Criminal code: When the responsibility of the legal person is exclusively engaged as a result
of the intervention of a natural person, only the person that committed the severer deed can be convicted. If the
identified natural person committed the deed knowingly and advisedly, it can be convicted at the same time with the
responsible legal person.
41
See also Fl. Streteanu, R. Chiri, quoted work, page 408-409. The authors show that, as long as the
associates in the case were also penal punished for that deed, the rule of non bis in idem would be violated.
42
According to Art. 19
1
paragraph (1)

of the previous Criminal code, in order to engage the criminal
responsibility of a legal person, it is necessary the condition that the deed should have been committed with the
form of guilt stipulated by law.
References

Jurma, Persoana juridic subiect activ al infraciunii/ Legal person - active subject of the
infraction, C.H. Beck Publishing house, Bucharest, 2010
N. Iliescu, Noul Cod penal/ New Criminal Code, pages 465-467
Poenaru, Problemele legislaiei n domeniul contraveniilor/ Legislation problems in the
domain of contraventions, Lumina Lex Publishing house, Bucharest, 1998
D.M. Costin, Rspunderea persoanei juridice n dreptul penal roman/ Responsibility of the
legal person in the Romanian criminal law, Universul Juridic Publishing house, Bucharest
Gh. Piperea, Obligaiile i rspunderea administratorilor societilor comerciale/ Obligations
and responsibility of the trading company administrators, All Beck Publishing house,
Bucharest, 1998
M. Basarab, V. Paca, Gh. Mateu, C-tin Butiuc, Codul penal comentat/ Commented criminal
code, vol. I, Partea general/ Generalities, Hamangiu Publishing house
S. Bacigalupo, La responsabilidad penal de las personas juridicas, Bosch, Barcelona, 1998
Fl. Streteanu, Cteva consideraii privind rspunderea penal a persoanei juridice potrivit
proiectului de lege pentru modificarea i completarea Codului penal/ A few considerations
regarding the criminal responsibility of the legal person according to the bill for the
modification and completion of the Criminal code, CDP no. 1/2005
Fl. Streteanu, R. Chiri, Rspunderea penal a persoanei juridice/ Criminal responsibility of
the legal person, Second edition, C.H. Beck Publishing house, Bucharest, 2007
M. Basarab, V. Paca, Gh. Mateu, C-tin Butiuc, Commented criminal code, vol. I,
Generalities, Publishing house Hamangiu
D. Apostol Tofan , Administrative law, vol. I, Second edition, C.H. Beck Publishing house,
Bucharest, 2008
www.scj.ro
www.coe.int.

HISTORY OF THE EUROPEAN UNION
Dan Vtman
*

Abstract
This article aims to demonstrate how the project of the European Union evolved both in the
interwar period and in the years following the Second World War, focusing on promoters of the idea
of federal Europe who attempted to find the best ways for building a suitable European Community
development. The establishment of three European Communities in the 50`s, although they were
mainly orientated economically also involved political cooperation, thus contributing to a new
federal vision. Evolution of the European Communities has been marked by the widening of their
accession of new members and by the review of the institutive treaties in order to speed and flexibly
achieve those objectives. Given the constant changing of modern world, the European leaders had to
agree on new rules that would take into account political, economic and social changes, while also
meeting the aspirations and hopes of the Europeans. Signing the Lisbon Treaty was the recognition
that the EU needs to modernize and to have effective and consistent tools, not only adapted to the
functioning of a Union extended to 27 countries, but also to the rapid changes of the present day
world. The Lisbon Treaty clearly defined objectives and values of the European Union on peace,
democracy, human rights, justice, equality, rule of law durability and also set up a stable institutional
framework which gives the ability to obtain better results closer to expectations of European citizens.

Keywords
European Community, European Union, the Community treaties, accession, modernization,
reform treaty.

1. Background of united Europe idea
The idea of a united Europe is old and deeply rooted in the history of European continent,
these taking different forms over the passage of time. According to historian Jean-Baptiste
Duroselle, over time were tested four types of relevant projects respectively for unity by force,
unity as a principle, unity in diversity and unity through mutual agreement, some of them
overlapping at times [1].
Greek antiquity has created the first forms of unity and cooperation, when they generated
the League of Delos [2] and the League of Peloponnese [3], both political creations having the
form of confederation. After their disappearance, the new power of Rome, based on a policy of
continuous expansion, managed to create the largest and most compact empire of antiquity, one of
the most consistent and durable state formations in human history [4]. The Roman model would be
for many centuries a target in terms of recovery, albeit partial, of the European continental unity,
temporarily fulfilled by the emperors Charlemagne [5] or Otto I [6].
Another form of continental unity was Christian. If along with the Edict of Milan (313 AD)
Christianity became a religio licita equal in rights with other religions of the Roman Empire, the
Edict of Thessalonica (380 AD) made it the state mandatory religion for all Empire subjects. Thus
Christianity has achieved a synthesis of European spirituality which evolved into the idea of unity,
*
Lecturer, Ph.D., "Gheoghe Cristea" University, e-mail: [email protected].
which will continue to be supported and promoted even after the Great Schism [7] in 1054, the
church operating as the first pan-European structure.
In the context of affirmation of national states it was felt the need for a stronger bond than
religion to unite European countries. Thus, from the eighteenth century it began to shape the idea
of formulation of new projects of peace and unity in Europe through its radical reorganization.
Examples would be "The design to make permanent peace in Europe from 1713, belonging to the
abbot of Saint-Piere [8]," Plan of a universal and eternal peace "by Jeremy Bentham [9] or the idea
of "European Republic" by JJ Rousseau [10].
Another project known as The philosophical project of permanent peace (Friede Zum
Ewigen) formulated in 1795 by the great philosopher Immanuel Kant (1724-1804), where he
developed the idea of an international pact designed to eliminate war forever in peoples lives. The
means for this purpose was the termination of the states illegal status (which represented the main
source of war) and the establishment of a new type of international society, a "nation state" of
federative type, to ensure security and protection for all countries regardless of their size. This
society should have been achieved progressively, starting from a strong core, provided by the
nation with a republican state system, extending itself to the continental level and then ultimately
to the entire world. Until this goal would have materialized, he wanted to have the federal alliance
between the confederate states to ensure the exclusion of war and abuse of any kind. Even if the
project did not include a specific institutional breakdown, with regard to the functioning of the
federal system envisaged, it nevertheless marks a milestone in the curdling of a unitary concept
that includes both ideals of pacifism, liberalism and federalism, using the formula of a free
federation of states with Republican constitutional regime and based on international law, with
mutual guarantee of rights.
Likewise have expressed their opinions other illustrious personalities: Alphonse de Lamartine
[11] who launched Manifesto to Europe, and Victor Hugo [12] a Call for United States of Europe
(1851). Later, Victor Hugo said that "Europe needs a European nationality," and in a message to the
Peace Congress in Lugano, he wrote: "Surely we will have this formidable European republic,. We will
have these United States of Europe that will crown the ancient world "[13].
But this dream was shattered by the First World War (also known as the Great War), which
destroyed internationalist pacifism illusions and hopes, the war effects being beyond the most
pessimistic projections [14].
Thus, almost one hundred years after the Napoleonic wars, which devastated for many years
the old continent, the Great War left Europe in ruins, with significant casualties, as well as severe
economic and social problems. The desire of states to cooperate to prevent recurrence of a disaster
of the magnitude of World War I, made the Paris Peace Conference (held from January 18, 1919 to
June 21, 1920) to decide the establishment of the League of Nations [15], whose basic principles
have been formulated in the plenary session of the Conference on January 25, 1919, showing that:
"It is essential for maintaining global status that the associated nations desire, to create a League
of Nations, a body of international cooperation which will ensure international obligations and
provide safeguards against war" [16].
Starting from the new European geopolitical realities and from the goals of the League of
Nations, the problem of finding new forms of organization of the European continent was repeated
in several projects that concerned not only the intellectual elite of the time, but also the politicians.
But the idea of a united Europe can not be imposed easily, it had to struggle with the fear of nation
states (especially those arising from the peace treaty) not to be swallowed by a super state led by a
great power, thus reenacting the prewar situation [17].
Four more years had to pass until Count Richard Coudenhove-Kalergi [18] began to develop
his project which gave rise to the Pan-Europe movement. In 1922, in Vienna, he published a
manifesto with a title "Europe's problem is summed up in two words: unification or collapse and in
Dan Vataman 109
1923 he published a comprehensive paper entitled Pan-Europe, which will become the classic work
of the movement with the same name initiated in the same year. For the first time in history it was
issued a lucid analysis work which contained the basic principles of a precise and coherent political
program. The paper stressed the need for reconciliation between France and Germany as the
indispensable basis of European reconstruction. The Union had to follow in many ways the Pan
American organization that seemed able to reconcile national independence with regional and
international cooperation. Pan-Europe was to be equipped with a Council composed of delegates
from the states, a Parliamentary Assembly composed of delegates from national parliaments and a
Court of Justice.
In the manifesto, "What the Pan-European Movement wants?", adopted on September 11,
1926, were proclaimed the lines of action necessary for the carrying out of Pan-Europe: ensuring
equality, security and sovereignty of the states, the creation of military alliances, creating a
customs union, creating a common currency, the common recovery of resources of the colonies of
Member States, respect for cultural individuality of each state and civilization, the protection of
national minorities, cooperation with other states of the League of Nations. So, they set economic
goals, in terms of international relations and in terms of human rights [19].
Union has enjoyed great success among some politicians, writers, or intellectuals, such as
Aristide Briand, Leon Blum, Edouard Herriot, Eduard Benes, Konrad Adenauer, Paul Valery, Paul
Claudel, Rainer Maria Rilke and many others yet.
Meanwhile, Count Coudenhove-Kalergi initiative faced with adverse reactions. An article in
the newspaper "Arbeiter-Zeitung (Workers Newspaper) reveals that the idea belongs to one man
who sees European peace treaty under threat and eternal conflict, showing that: "Utopia is to
believe that the capitalist powers can be convinced of the usefulness of international solidarity if
they are shown the potential danger of nationalist egoism."[20]
The Pan-European Movement has continued to attract the attention in the next period setting
in motion a true intellectual rivalry, but in terms of real output the Pan-European movement failed.
In 1929, it passed from the stage of propaganda in favor of European unification to that of
official action. Thus, the French foreign minister, Aristide Briand [21], supported by his German
counterpart, Gustav Stresemann on the occasion of the tenth session of the League of Nations
General Assembly (September 5, 1929) gave a speech in which he proposed a plan for the United
States of Europe, saying: "I was associated during these years in active propaganda in favor of
ideas that wanted to be qualified as generous, so as not to be qualified as imprudent. This idea,
which was born many years ago, which ignited the imagination of philosophers and poets [...]
finally appeared to correspond to a need [...] I believe that among the peoples who are
geographically grouped in Europe there must be some sort of federal link. That federal link I will
endeavor to make real [22].
In his speech, Gustav Stresemann, strongly supported the economic objectives of such a
union, by creating new markets for the industry of European countries, streamlining the continent's
economy and its integration into the world circuit. He also expressed the need to clarify political
objectives, so that the expected unification should not limit the sovereignty of participating
countries and should not be directed against any extra-European powers.
Representatives of 27 European countries, members of the League of Nations recognized the
need for such an approach and called for France to draw up a memorandum which included the
principles of organizing the new structure of European Union, which will be submitted for
documentation to all European governments to express their observations. The views of
governments were to be sent to the French Government, then the findings of the consultations
were to be presented to a future session of the General Assembly of the League.
Thus the postponing the debate of Briand project for several months sealed its fate due to
adverse changes occurring in international political and economic context.
G. Stresemann's death (October 3, 1929) and the Brning minority government coming into
power (March 27, 1930) led to discontinuation of the Franco-German dialogue. Heinrich Brning
cabinet achieved a decisive shift in German foreign policy in a revisionist nationalist sense and the
idea of reconciliation with France has given way to a greater intransigence for revision of peace
treaties and pursuing priority national interests of Germany.
However, on May 17, 1930, was submitted for documentation to all European governments
French Government Memorandum on the organization of a system of European Federal Union ",
in which appeared the necessity of coordination of economic policies and the need for an
institutional mechanism capable of providing the Union its vital organs necessary to achieve its
goal, consisting of: a representative body as a regular institution of the "European Conference",
drawn from representatives of all European governments members of the League of Nations, an
executive form of permanent political committee with a restricted membership, to which may be
invited to other states, members or non-members of the League of Nations, when discussing issues
that concern them directly, a Secretariat which will develop and provide preliminary work in terms
of administrative enforcement of the instructions of the Political Standing Committee or the
European Conference [23].
Memorandum had a huge media echo raising a great interest among European public
opinion. In France, while the non-communist left and center press welcomes the project having
reservations about the principle of maintaining absolute national sovereignty, the right press spoke
of "incurable delusion" and " traitor pacifism ", seeing only one advantage only in obliging all
states to openly declare acceptance of the situation created by the peace treaties. In Germany,
center and left media, although objecting to the stabilization of the Versailles system by putting the
spotlight on security guarantees, however, stressed the unrepeatable opportunity offered by the
project for European unification, for the peaceful resolution of all disputes, including existing
border revision through understanding. Right-wing newspapers, however, generalized the critics of
the project as an expression of French national interests, designed to impose new "encumbrances"
to Germany and sustained the idea of central Eastern Europe under German auspices.
In the Romanian media, the issue has been addressed extensively, many journalists,
politicians, personalities of culture and science, expressing their point of view. One of the most
relevant points of view is that of Vespasian V. Pella [24], which in a series of articles examined
the whole problem contained in the Memorandum. According to him, the creation of European
Federal Union was intended to "provide moral and material recovery of our continent, to provide
somewhat second revival of Europe, this Europe which many politicians and economists consider
on the verge of collapse as today. Also V. Pella showed that: "Europe can only be saved through
cooperation based on the principle of equality between all members of our society, through a
cooperation which does not interfere with anything in the process to normalize and strengthen
those states that are now stopped in their natural development by foreign domination under which
they were found before World War and which countries are thus in a state of manifest inferiority,
finally, through a cooperative in which all peoples of our continent, without any thought of
political and economic hegemony, want to participate in the truthful reorganization and progress
of the European community [25].
On September 9, 1930, representatives of European states to the Geneva Conference were
called to give their verdict on the project Briand. The author of the plan proposed adoption of a
declaration of principles for European Union constitution and the Federal Assembly. German
counterproposal provides a simple resolution declaring the will of States to discuss European
issues in their entirety, only in the League of Nations. Finally, at the Englands proposal, the
adopted resolution only stated by the formation of a committee of study of the problem of the
European Union within the League of Nations with a Secretariat headed by Secretary General of
Dan Vataman 111
the General Assembly. Committee met in January 1931 and had several sessions until September
1932 in Geneva without adopting resolutions, but only reports to the General Assembly of the
League of Nations. During the debate addressed to the Committee there were only economic
problems, and in September 1931, the Committee rejected a final proposal of A. Briand regarding
the creation of standing committees of the League of Nations on the problem of European unity.
Disappointed and discouraged, Aristide Briand declared the withdrawal of his project and further
limiting of the availability of France to a policy of understanding with Germany.
In conclusion, Brning cabinet caused the failure of French plans. For Germany, Briand
Plan has only secondary importance to the German policy of revising peace treaties and to the
domestic issues such as the economic crisis, unemployment, electoral fight and Nazis rising [26].
In early 1932, the aggressive attitude of Germany continues to be stated, the hegemonic
tendencies of Europe becoming increasingly obvious. Following the affluence of consolidated
foreign capital of benefit from Dawes Plan [27], of the war unpaid debts and of the path opened to
the east through agreements of Locarno, Germany was in a privileged position in terms of
economic relations with the Member states of the Danube basin. To bar the road of German
imperialism to the Danubian region in February 1932, France launched the Tardieu Plan of
"European Economic Union." The Anglo-Franco-German conflict of interests was evident in
conversations between these powers, so the French plan was rejected. Failure of Tardieu Plan was
reported by the severe censorship of the major powers (Britain, Germany, Italy) in the London
Conference, held between 6 and 8 April 1932 [28].
When we refer to legitimate concerns of Romanians and Romania in relation to the
emergence and evolution of the idea of European integration we can not ignore the presence of
great diplomat N. Titulescu [29] in such a context; as a League president, he has helped to
strengthen the thesis of "European unification", but also to remove the danger of a new world war.
Another approach started in Romania in view of the European unification was the Esperanto
call to achieve United States of Europe (1934), call that "by its clairvoyance goes beyond the
frontiers of imagination. The call text in its 10 points has a tendency to come true today:
"Europeans!
1. Despite the opposition and against all, trust in the European Union.
2. In the national elections, vote only for a party that militate in favor of creating a unified
economic area.
3. Ask the national European parliaments to establishing a common Parliament.
4. Ask for the formation of a common European army and the introducing of a single currency.
5. Have an autonomous status for countries, regions and cities in the United States of
Europe.
6. To study in a European spirit.
7. Respect other nationalities.
8. Fight to free the economy from the burden of bureaucracy.
9. Fight for laws and institutions that enable social development.
10. Who fights for the European Union promotes world peace "[30].
Unfortunately, these messages did not have the expected echo in Europe; so once again, the
continent has been ravaged by a devastating war, with harmful consequences for European countries.
During the Second World War, several European countries have developed manifestations
of ideas of European unification. In 1944, representatives of the European resistance movements,
meeting in Geneva (Switzerland), have developed a European ruling which stated that the creation
of a prosperous, democratic and peaceful Europe formed of sovereign states, separated by political
borders and customs is impossible, claiming that only a European federation could remove the
causes of the two world wars.
At the end of World War II took a new form of hope was born. Those who resisted
totalitarianism during the Second World War were determined to end the international antagonism
and rivalry in Europe and thus create conditions for lasting peace. Between 1945 and 1950, some
statesmen, including Winston Churchill, Robert Schuman, Konrad Adenauer, Alcide de Gasperi
were determined to persuade citizens of the need to enter into a new era, that of a structured
organization of Western Europe, based on common interests and based on treaties, which
guarantee the rule of law and equality between all nations.
From here, however, until the actual implementation of the idea of European Union there
had to be taken several preliminary steps. A first step is the ideas of relaunching the European
Union ideas in the context of inter-war situation. In this respect we recall Winston Churchill's
statement from University of Zurich in 1946 where he reiterates the idea of European unity by
creating a Union of European States and a congress [31].
Several days later, on September 21, 1946, held in Hertenstein (Switzerland) a meeting of
representatives of the European federalist movement, ended with a resolution approving a training
program of a European union. As a result, from 27 to 31 August 1947 was held in Montreux
(Switzerland) the Founding Congress of the Union of European Federalists (Union of European
Federalists - UEF).
At Congress meeting in Montreux, representatives of European federalist movements [32]
have been proposed to test the six principles on which the future federation was to be completed:
- European federation can be formed only on giving up any hegemonic principles;
- Federalism is based only on giving up any sense of the system;
- Federalism should not face the problem of minorities;
- Federalism is not intended to remove national differences and coverage of all nations in a
single block, but rather retain their identities;
- Federalism should be based on acceptance of complexity, contrary to simplicity, which is
characteristic of totalitarian spirit;
- Formation of a federation must be carried out step by step and not from the center, or by
government means.
The Montreux Congress, during which the Federal States of Europe adopted the draft, was
the prelude to the Congress of Europe in 1948. The Congress of Europe (known as the Hague
Congress), held from 7 to 11 May 1948, The Hague (Netherlands), aimed at discussing ways of
unifying Europe and was the first step of the process that led to formation of the European Union.
Congress brought together the most representative contemporary European personalities who had
proposed to demonstrate the extent of movement for European unification and to establish
objectives to be achieved to make such a union. The congress resulted in numerous resolutions,
whose approach reflects two perspectives on European construction: the federalist tendency (who
wanted to fast forward and asked for a partial transfer of sovereignty of participating countries,
through the formation of a European federation, according to the principle adopted in the United
States of America) and unionist tendency (supporter of the idea of a European Union, in which
participating states should retain full sovereignty, unity whose main functions would be economic
cooperation and strengthen the defense capacity of Western countries) [33].
Political resolution adopted then by the Congress, entitled "Message to Europeans",
underlined the urgent need for nations to unite Europe economically and politically in a structure
capable of ensuring their security and social progress. In this relatively informal framework it was
accepted the idea of partial transfer of sovereignty to a union, which thus can better defend their
political and economic interests. It also requires the election of a European Assembly to examine
the legal and constitutional implications deriving from the establishment of such a union or
federation and social consequences thereof or otherwise. Following The Hague Congress, the
Dan Vataman 113
International Coordination of Movements for European Unity was transformed into "European
Movement" [34], which has a coordinating role and brings together European movements.
In the same time, some European aspirations have been realized through the establishment
of two organizations. The first one, "Western Union", was born after the Treaty of cooperation in
economic, social and cultural and collective self-defense, signed in Brussels on March 17, 1948,
by Belgium, France, Luxembourg, Netherlands and United Kingdom. By this treaty, the signatory
states took commitment to defend each other if one of them would be the victim of armed
aggression. Besides the fact that he proposed the creation of a common defense system for
Member States, the organization is not limited to matters of defense policy but also considered
strengthening economic, social and cultural connections between Member States in order to
successfully resist from a military and ideological point of view to the new profile threat. In this
regard, five states have established a 'Standing Committee for the study and development of
European federation "[35].
The second organization released was OECE (European Economic Cooperation), which was
created by the Treaty of Paris of April 16, 1948. OECE objectives were: management of financial
aid from European countries by the United States, resulted in the Marshall Plan [36], coordination
of national economic policies, offsetting the lack of convertibility of currencies and abolition of
quantitative restrictions on trade between the states involved, and achieve a customs union and a
free trade area [37].
Creating these two organizations responded only partially to the objectives stated at the
Hague Congress. What was missing was the parliamentary component, namely an assembly of
representatives of national parliaments to provide "a platform for exchanging ideas and expressing
an opinion on Europe, on topical issues.
In these circumstances, in July 1948, just two months after the Hague Congress, Foreign
Minister of France, Georges Bidault presented at a meeting of the Advisory Council of the
Brussels Treaty, the first formal proposal at government level for creating a European parliament.
The proposal was greeted with some apprehension. Subsequently, on October 26, 1948, the
Brussels Council decided to set up a committee on research and development of European unity,
composed of representatives of the five members of the Western Union [38]. Meeting in Paris in
October 1948, under the presidency of Edouard Herriot, the Committee was asked by a Franco-
Belgian proposal that called for a European Parliamentary Assembly. British delegation presented
a counter-proposal predicting a competent European Council on matters of common interest,
except for military defense and economic issues which were operated by OECE. It also proposed
that in addition to the Committee of Ministers it should also be established an Assembly composed
of representatives of governments. Faithful to its conception of the creation of a classic
intergovernmental body, United Kingdom rejected any decision-making power of its own,
virtually any parliamentary character of the Assembly [39].
On the Treaty Consultative Council meeting in Brussels on 27 and January 28, 1949, Britain
softened its position, and agreed with the principle of creating a Parliamentary Assembly, but with
an advisory role. The five foreign ministers reached consensus on establishing a Council of Europe
consisting of a ministerial committee, which met behind closed doors, and a consultative body
whose meetings were public. They decided to convene a conference of ambassadors to devise
tasks and organize this new institution and invited five other countries (Denmark, Ireland, Italy,
Norway and Sweden) to participate in negotiations. This conference should establish the status of
the Council of Europe.
In early May 1949, ten foreign ministers met in London in Saint James Palace, to discuss
ambassadors findings and resolve past difficulties. Following these consultations, on May 5,
1949, was signed the Statute of the Council of Europe [40]. The official communiqu issued
shows: "The essential feature of status [...] is to create a Committee of Ministers and a
Consultative Assembly which set up the Council of Europe. Committee of Ministers shall have the
powers to develop cooperation between governments and the Consultative Assembly, expressing
the aspirations of the peoples of Europe, will provide governments the opportunity to remain in
permanent contact with European public opinion "[41].
Council of Europe Statute entered into force on August 3, 1949, the first session of the
Committee of Ministers and Consultative Assembly taking place immediately thereafter, in
Strasbourg [42]. Council of Europe has completed politically the previous organizations, bringing
together European states which enjoyed a democracy and promoted human rights. These
organizations, since 1950, came to be added to the European Communities, organizations intended
primarily for economic purposes, but which have also assumed political cooperation, thus
contributing to a new federal vision that ultimately will materialize in the emergence of the
European Union.

2. Establishment of the European Communities
Creating European Communities in the 1950s is based on the same postwar realities that
have led to the establishment of other European organizations. Communities appeared, therefore,
as a new type of international organizations based on economic integration of Member States, with
other words, on their membership in a unitary, integrated body, well beyond the sphere of relations
of cooperation, partnership and joint action that characterizes the work of classic international
organizations. The economic objectives pursued through the creation of new communities aimed at
improving their economic and technical capacity to increase efficiency, in the conditions required
for the development of modern society [43].
In these circumstances, in December 1949, Michel Debr [44] proposed a draft pact for the
European Union States, based on a presidential system and the federalists who have an arbitrator
chosen by universal suffrage for a period of five years, a Senate of Ministers of the Member States, a
European Assembly composed of national delegates elected, based on the number of inhabitants and
a Court consisting of Judges [45]. Michel Debr's proposal was followed by the declaration of Robert
Schuman (French Foreign Minister), who in May 9, 1950, taking an old idea of Jean Monnet [46]
proposed the pooling of coal and steel production France and Germany, and creating a market for
coal and steel to be conducted according to supranational methods. In the Declaration it was stated:
"The French Government proposes that Franco-German production of coal and steel to be placed
under a High Authority, within an organization open to other European countries. Control of coal
and steel production should lead immediately to build a base for economic development as a first
step towards a European federation, while changing the destinies of those regions which were
previously dedicated to the manufacturing of munitions of war, whose victims were rapidly
becoming. The solidarity in production thus established will show that any conflict between France
and Germany becomes not merely unthinkable, but impossible. The establishment of this strong
production unit, open to all countries wishing to cooperate and undertake to give member countries
the main elements of industrial production on equal terms, will lay a true foundation for economic
unification. This production will be offered to the world, without distinction or exception, to help
raise living standards and to promoting peaceful achievements "[47].
To fulfill this goal, in June 20, 1950, France has organized an intergovernmental conference
whose presidency was provided by Jean Monnet, who, on this occasion said: "We are not here to
make a joint work, not to negotiate advantages, but to seek benefit of our mutual advantages [48].
Following discussions and negotiations on April 18, 1951, was signed the Treaty of Paris which
Dan Vataman 115
established the European Coal and Steel Community (CECA / ECSC) [49]. Treaty entered into
force on July 23, 1952, after being ratified by the six signatory countries: France, West Germany,
Italy, Belgium, Luxembourg and the Netherlands.
ECSC Treaty stated the creation of a common market for coal and steel, which resulted in
suppression of customs duties and quantitative restrictions on free movement of goods, the
prohibition of discriminatory measures and grants or aid by the state. Although there was a sector
common market (which referred only to coal and steel), it set an institutional precedent that will
provide the foundation for the European construction.
By ECSC Treaty was provided for the creation of four community bodies, namely:
- High Authority as a Community body that have a position of independence from the governments
of the ECSC;
- Special Council of Ministers, which was an intergovernmental body;
- Common Assembly which had the task of democratic control and which was composed of
representatives of parliaments of Member States, elected by direct universal suffrage;
- Court of Justice, with a mission to ensure the observation of ECSC law along with the
interpretation and application of the Treaty.
Since the treaty constituting the ECSC the Treaty drafters wanted to create a community of
law in which law should take the place of force. The treaty comprises four principles that form the
basis of existing EU construction: the superiority of the institutions, the independence of the
Community institutions, collaboration between institutions and equality among states. Although
the Treaty has no longer the importance that the European economy had in the 50-ies, being out of
force today, the major institutions which it created remain valid.
According to the Decision 234/2002/ECSC of the Representatives of the governments of the
member states, meeting within the Council, of 27 February 2002 on the financial consequences of
the expiry of the ECSC Treaty and on the research fund for coal and steel, the Treaty establishing
the European Coal and Steel Community (ECSC) expires on 23 July 2002 and the ownership of
the ECSC funds will revert to the Member States.
In accordance with Article 1 of Decision 234/2002/ECSC, Commission was authorized to
manage on behalf of the Member States, all existing assets and liabilities of the ECSC to July 23,
2002, from July 24, 2002.
Subject to any increase or decrease which may occur as a result from the liquidation
operations, was considered as assets intended for research in the sectors related to the coal and
steel industry, referred to as the ECSC in liquidation. After completion of the liquidation, the
assets were to be called "Active Research Fund for Coal and Steel" and the income from these
assets, called the "Assets of the Research Fund for Coal and Steel", to be used exclusively for
research in sectors related to Coal and steel in accordance with this decision and acts on it [50].
In the period following the creation of the ECSC, attempting to focus this organizational
model to other areas, has proposed creating a European defense community, which involves the
establishment of a common European army with contingents made available by Member States
and that would have been "attached political institutions of the united Europe" [51]. In this regard
it was signed on May 27, 1952, the Treaty establishing the European Defence Community (EDC),
which was sent to ECSC Member States on March 9, 1953. This project was abandoned in August
30, 1954, after the French National Assembly refused to ratify this treaty, although the treaty had
been ratified by other countries [52].
After the 1954 failure of ambitious plans to create a European Defence Community (in
conjunction with this and a European political community, in other words the supranational level
of cooperation in an area extremely sensitive and politicized) during 1 3 June, 1955, held in
Messina (Italy) a conference of foreign ministers of member countries of the ECSC, an event
which restarted Community building. On this occasion, it was approved the Memorandum issued
on May 20, 1955, by the Benelux countries [53] and it ruled the European integration process in all
sectors of the economy.
The participants agreed to set up a committee composed of government representatives,
under the chairmanship of Paul-Henri Spaak [54], which was to report on creating a common
generalized market and an atomic energy community. United Kingdom, although initially accepted
the invitation to join the committee, retired in November 1955, believing that it is better to have
inter-governmental cooperation in the OEEC (Organization for European Economic Co-
operation).
Spaak Report, released on April 21, 1956, was discussed and adopted by the Venice meeting
of foreign ministers of the six ECSC member states from 29 to 30 May 1956. It was agreed that
this document should be the basis of negotiations for treaties. Another step, also important, was the
inter-governmental conference in Brussels on June 26, 1956 [55].
Other negotiations followed in summer and autumn, due to the diversity and complexity of
problems, the divergence of views. Following negotiations, it was finally agreed the completion of
substance and detail aspects of the EEC and EURATOM Treaties.
Thus, on March 25, 1957, in Rome, the Treaties establishing the European Atomic Energy
Community and European Economic Community were signed. On the same occasion were also
signed other documents, of particular importance including, the Convention on certain institutions
common to the European Communities (Parliament Assembly and the Court of Justice of the
European Community). The treaties were ratified during the July-December 1957, entered into
force on January 1, 1958.
By signing the Treaties of Rome, two new Communities came into being: European
Economic Community (EEC) and European Atomic Energy Community (EAEC), the new
communities being inspired by the institutional concepts already put into practice by the ECSC.
According EEC Treaty, the stated purpose of the European Economic Community was that
by establishing a Common Market and progressively approximating the economic policies of
Member States, to promote throughout the Community a harmonious development of economic
activities, a continuous and balanced expansion, an increased stability, an accelerated raising of the
standard of living and closer relations between its Member States.
To achieve these goals, the Community action involved:
(a) the elimination, as between Member States, of customs duties and of quantitative
restrictions in regard to the importation and exportation of goods, as well as of all other measures
with equivalent effect;
(b) the establishment of a common customs tariff and a common commercial policy towards
third countries;
(c) the abolition, as between Member States, of the obstacles to the free movement of
persons, services and capital;
(d) the inauguration of a common agricultural policy;
(e) the inauguration of a common transport policy;
(f) the establishment of a system ensuring that competition shall not be distorted in the
Common Market;
(g) the application of procedures which shall make it possible to co-ordinate the economic
policies of Member States and to remedy disequilibria in their balances of payments;
(h) the approximation of their respective municipal law to the extent necessary for the
functioning of the Common Market;
(i) the creation of a European Social Fund in order to improve the possibilities of
employment for workers and to contribute to the raising of their standard of living;
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(j) the establishment of a European Investment Bank intended to facilitate the economic
expansion of the Community through the creation of new resources; and
(k) the association of overseas countries and territories with the Community with a view to
increasing trade and to pursuing jointly their effort towards economic and social development [56].
Like the European Atomic Energy Community, in order to fulfill its duties, the EEC has
been endowed with a Parliamentary Assembly, a Ministerial Council, a Commission and a Court
of Justice. It was also established that the Council and Commission must be supported by an
Economic and Social Committee who have advisory attributions [57].
Also, according EAEC Treaty the main objective of the European Atomic Energy
Community was to contribute to the raising of the standard of living in Member States and to the
development of commercial exchanges with other countries by the creation of conditions
necessary for the speedy establishment and growth of nuclear industries.
To accomplish its mission, EAEC should:
(a) develop research and ensure the dissemination of technical knowledge,
(b) establish, and ensure the application of, uniform safety standards to protect the health of
workers and of the general public,
(c) facilitate investment and ensure, particularly by encouraging business enterprise, the
construction of the basic facilities required for the development of nuclear energy within the Community,
(d) ensure a regular and equitable supply of ores and nuclear fuels to all users in the
Community,
(e) guarantee, by appropriate measures of control, that nuclear materials are not diverted for
purposes other than those for which they are intended,
(f) exercise the property rights conferred upon it in respect of special fissionable materials,
(g) ensure extensive markets and access to the best technical means by the creation of a
common market for specialized materials and equipment, by the free movement of capital for
nuclear investment, and by freedom of employment for specialists within the Community,
(h) establish with other countries and with international organizations any contacts likely to
promote progress in the peaceful uses of nuclear energy [58].
In order to perform its tasks it has been endowed with the following bodies: a Parliamentary
Assembly, a Ministerial Council, a Commission and a Court of Justice [59]. It was established that
the Council and Commission are to be assisted by an Economic and Social Committee which was
advisory.

3. Evolution of the European Communities
Creating the three European communities marked the beginning of a process of evolution of
the European construction, which is developing in two directions: extending Communities by
attracting new members and institutional improvement.

3.1. Enlargement of the European Communities
As is known, the founding members of the three communities were six, but under the
treaties of incorporation, the founders envisioned the possibility of extending the communities by
receiving new members. This was provided both in ECSC Treaty, EEC Treaty (Art. 237) and
EAEC Treaty (Art. 205).
The first wave of enlargement took place on January 1, 1973, when Denmark, Ireland and
the United Kingdom of Great Britain and Northern Ireland have signed the accession to the
European Communities, which will include nine states since then. Norway has voted with a
majority against membership, following a referendum organized for this purpose.
The following membership application was submitted by Greece in 1975 (after having first
concluded an association agreement with the European Communities in July 1961); the Accession
Treaty was signed on May 28, 1979, it entered into force on January 1, 1981.
Two other countries, Spain and Portugal joined in 1985 (after having first concluded an
association agreement with the European Communities in 1977), the Accession Treaty enters into
force on January 1, 1986. With the accession of Spain and Portugal, the number of Member States
of the European Communities has risen to 12.
Given the policy of opening to other countries of the European Communities, in subsequent
years were filed new applications for membership, as follows: Turkey (14 April 1987), Austria
(July 17, 1989), Cyprus (July 4, 1990), Malta (July 16, 1990), Sweden (July 1, 1991), Finland
(March 18, 1992), Switzerland (May 20, 1992), Norway (November 25, 1992) [60].
On February 1, 1993, in Brussels, Romania signed the "The European agreement
establishing an association between the European Communities and their Member States, of the
one part, and Romania, of the other part [61]. The following year, on May 4, 1994, European
Parliament gave its consent for admission as members of Austria, Finland, Norway and Sweden, to
be completed the internal procedures of the Member for this purpose. Of these countries only
Norway has rejected membership in a referendum (for the second time), so that from 1 January
1995 the membership number increased to 15.
In the following period, a number of other states have applied for membership, namely:
Hungary (March 31, 1994), Poland (April 5, 1994), Romania (June 22, 1995), Slovakia (June 27,
1995), Latvia (October 27, 1995 ), Estonia (November 28, 1995), Lithuania (December 8, 1995),
Bulgaria (December 14, 1995), Czech Republic (January 17, 1996), Slovenia (June 10, 1996).
Following these requests, on May 1, 2004, ten new countries joined the European
Communities, namely: Cyprus, Estonia, Latvia, Lithuania, Malta, Poland, Czech Republic,
Slovakia, Slovenia and Hungary, the number of Member States amounting to 25.
The next enlargement took place on January 1, 2007, when Romania and Bulgaria became
full members of the European Community [62].

3.2. Institutional Improvement
Institutional improvement, the second main direction in the expansion of the European
Communities, was marked, according to some authors [63], by a series of crises and failures,
which led to a reflection and summary on how to overcome these crises, materialized finally in
positive law by adopting legal rules that have changed the original treaties. According to others
[64], the institutional development of the European Communities and their expansion only as the
effect of crises and failures can not provide a sufficiently complete basis to explain the basic
community building, arguing that in addition, an important role in institutional development
Community had the results obtained by integration, especially since they are capable of joining the
common efforts in the development of integration. For a better understanding of the entire process
it is necessary to have a chronological presentation of key events that influenced the institutional
development of the European Communities.
Thus, during 1961-1962, against the Franco-German rapprochement promoted by General
Charles de Gaulle and Chancellor Konrad Adenauer, it was attempted to create a political
community. In this regard, the Heads of State or Government of Member States have entrusted a
committee led by Christian Fouchet, French Foreign Minister, with the mission to develop a draft
treaty on the creation of a Union of States.
The project, known as Fouchet Plan was published in November 1961 and proposed the
creation of a European political union, governed by principles of intergovernmental coordination
of foreign policies for the Member States, provide a Council of Heads of State, a Commission
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composed of European Policy Senior foreign affairs officials and the European Parliamentary
Assembly. The Fouchet Plan was rejected by the community partners of France, being perceived
as a Gaullist plot to undermine the European Communities [65].
A second Fouchet Plan was published on January 18, 1962; it is more limited than the
first, providing only the joint development of Member States' foreign policy, the defense and the
cultural policy.
Following negotiations between member countries of the European Communities, regarding
the ant federalist views of General Charles de Gaulle this project was not approved either.
Thus, in the '60s, the development of the community was characterized by a constant tension
between national interests and EU integration, especially marked by the serious crisis which
occurred in June 30, 1965 when France practiced so-called politics of the "empty chair" at Council
meetings. The crisis was triggered by the discussions on financial issues related to agricultural
trade. France rejected proposals from the Commission (chaired by Walter Hallstein) on common
agricultural policy and was withdrawing its representative in negotiations. The Commission was
charged that it assumed political power normally given the Council, thus trying to set up a
supranational body.
The situation has been blocked without any possibility of output because France was in a
different position on the issue of adopting a decision. France, which denied that decisions should
be taken by majority vote and claimed that any decision should be taken by unanimity community
members, was absent from Council meetings between 30 June 1965 to 30 January 1966, when the
crisis ended with the Luxembourg Compromise. The Luxembourg Compromise, although it had
no legal value, established that Member States may request to postpone the vote and extend the
debate around a proposed Community act if that act would harm important national interests. It
was stated that decisions will be taken by majority vote, the Member states, however, agreeing that
the important issues should have unanimous vote.
Another important institutional development of the European Communities was the
adoption on April 8, 1965, of the "Treaty establishing a Single Council and a Single Commission
of the European Communities", known as the "Treaty of Brussels" or "Merger Treaty"[66]. The
treaty was to unify structure institutions in the three European Communities, which is expressly
provided in the Preamble of the Treaty.
Thus, at decision level it was a single body, the Council of Ministers, which replaced the
Special Council of Ministers of the European Coal and Steel Community, European Economic
Community Council and the European Atomic Energy Community Council. This exercised its
powers and competencies of these institutions in the conditions of each constituent part of the
Treaty.
At the executive level resulted a single institution - European Commission, which replaced
the High Authority of ECSC and EEC Commission and the Commission of the EAEC, the new
entity exercising the powers and competences of the three institutions gathered under the terms of
the constituent treaties.
The entity created by this Treaty, namely the "European Communities" enjoyed on the
territory of Member States privileges and immunities necessary to carry out their mission, as laid
down in the Protocol annexed to the Treaty. Also, officials and other servants of the three
Communities became, at the entry into force of the Treaty, officials and other servants of the
European Communities as part of a single administration of these communities [67].
In conclusion, the Treaty has made an institutional merger that led to the creation of a single
budget of the Communities and the emergence of a single EU government. Unification which has
been achieved took place only at the institutional level, new institutions created accomplishing the
tasks provided in all three constituent treaties, leaving the three communities distinct.
At the Hague Summit in December 1969, the six members of the European Communities
have reinforced the need for political unification of Europe [68]. This has led to the adoption of
Davignon Report, on October 27, 1970 be which was an agreement in simplified form which
does not constitute a change in the constituent treaties, but requires only a moral obligation for
Member States. Davignon Report consisted of four parts: in the first part were set some general
considerations on the European political union to be "based on a common heritage of freedom and
respect for human rights and to collect democratic states which have a freely elected parliament.
The second part set objectives and means (harmonizing the views and concerted action in foreign
policy, resulting from regular meetings of foreign ministers prepared for a permanent committee of
the kind that draw up the report), in Part Three ministers are undertaken to continue this process of
reflection and to prepare a new report assessing the results and the fourth provided the
combination to the process of candidate countries for accession to the European Communities.
Following an objective integration political (which was not established institutionally until
the coming into force of the Single European Act), Davignon Report managed a foreign policy
focus of Member States, and one could say it has the merit of having prepared the future Member
States for Common Foreign and Security Policy (CFSP).
The next major step in the evolution of the European Communities was adopting the Single
European Act (SEA) by which were revised some provisions of the Treaty which established the
Communities and it has shown willingness of the Member States to end stagnation community
building. Single European Act was negotiated and drafted in an Intergovernmental Conference
held in Luxembourg, from September 9, 1985 to February 17, 1986, the SEA text being signed in
two stages: at February 17, 1986, by the nine states of the 12 States (Belgium, France, Germany,
Ireland, Luxembourg, Britain, Netherlands, Portugal, Spain) and on February 28, 1986, by the
other three (Italy, Denmark and Greece).
In the first stage, SEA has been ratified only by 11 Member States, considering that Ireland
must first amend the constitution because of security references in the foreign policy community.
After ratification by the SEA and Ireland, on July 1, 1987, the Treaty entered into force.
Single European Act brings together in a single document provisions for reform of European
institutions and extends Community competence, also containing provisions on cooperation in
foreign policy and environmental protection. SEA also removes the last barriers to complete the
single market and broadens the field of Community action in the social sphere, environment
protection, research and technological development. Institutionally speaking, it extends the area in
which the Council of Ministers votes by qualified majority and formally recognizes the existence
of the European Council. Also at the institutional level, Parliament first becomes associated in the
legislative process, by establishing the principle of cooperation [69]. The same document
establishes dual jurisdiction, by creating the Court of First Instance and Court powers extend. The
document reinforces and extends competences in Executive Committee too.
Another milestone in the Community building is the adoption of the Maastricht Treaty. This
one together with the treaties that have followed are further analyzed as referring to a new stage in
the evolution of the European Communities, namely the European Union.

4. Establishment of the European Union and the further evolution of the
Community scheme
A crucial moment in the evolution of community building is the relaunching of this process
by adopting several texts, in legal form which merged with the Union's political and economic and
monetary union, and have resulted by signing on February 7, 1992, in the Maastricht Treaty,
known as the Treaty on European Union (TEU) [70].
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Maastricht Treaty is composed of seven titles, as follows: Common provisions (Title I),
Modification of the three treaties that each community has been established (Titles II-IV),
Provisions on a common foreign and security policy (Title V), Regulation of cooperation in
justice and home affairs (Title VI) and Final Provisions (Title VII). In addition the Treaty has
annexed protocols and declarations on community problems.
Even the first article of the treaty states that: "This Treaty marks a new stage in the process
of creating an ever closer union among the peoples of Europe, in which decisions are taken as
openly as possible and as closely as possible to the citizen. Further, the Treaty states that "The
Union is founded on the European Communities, supplemented by the policies and forms of
cooperation established by this Treaty. Its mission is to organize, in a manner demonstrating
consistency and solidarity, relations between the Member States and between their peoples.
Based on these provisions, it can be said clearly that the three Treaties establishing the
European Union constituents have not been removed [71] and thus not the three communities,
which are one of the three pillars on which the Union is based [72].
Maastricht Treaty has brought some changes in terms of the European Communities,
covering the most important European Economic Community (EEC), the objectives of which were
reworked according to Community competences changes that suffered a number of institutional
changes [73].
According to Article B of the TEU, the Union has the following main objectives:
- to promote economic and social progress which is balanced and sustainable, in particular
through the creation of an area without internal frontiers, through the strengthening of economic
and social cohesion and through the establishment of economic and monetary union, ultimately
including a single currency in accordance with the provisions of this Treaty;
- to assert its identity on the international scene, in particular through the implementation of
a common foreign and security policy including the eventual framing of a common defence policy,
which might in time lead to a common defence;
- to strengthen the protection of the rights and interests of the nationals of its Member States
through the introduction of a citizenship of the Union;
- to develop close cooperation on justice and home affairs;
- to maintain in full the acquis communautaire and build on it with a view to considering,
through the procedure referred to in Article N (2), to what extent the policies and forms of
cooperation introduced by this Treaty may need to be revised with the aim of ensuring the
effectiveness of the mechanisms and the institutions of the Community.
In view of the future evolution of community building, in the article N, of the TEU states:
"A conference of representatives of the governments of the Member States shall be convened in
1996 to examine those provisions of this Treaty for which revision is provided, in accordance with
the objectives set out in Articles A and B.
The treaty also provides for review of treaty provisions in the coming years depending on
the institutional changes increase the Member States and a possible strengthening of the European
Parliament.
Application of the Maastricht Treaty required, in some respects, the adoption of texts or
enforcement measures (institutional arrangements, changes in institutions' internal regulations),
some of which were developed in anticipation of entry into force of the Treaty and entered into
force together with it. 1 January 1999 was chosen for the transition to the third stage of Economic
and Monetary Union, and could finally be respected [74].
Adoption of the Treaty of Amsterdam [75], on October 2, 1997, marks a milestone that has
significant elements in the reform of EU institutions, in terms of integration and cooperation of
states in the enlargement of the communities receiving new states, particularly Central and Eastern
Europe. Treaty of Amsterdam consists of three parts, an appendix and 13 protocols. Thus:
- The first part (substantial changes) includes important amendments to the Treaty on
European Union, the Treaty of establishing the European Community, the Treaty establishing the
European Coal and Steel Community, the Treaty establishing the European Atomic Energy
Community and the Act annexed to Council decision of September 20, 1976 on the choice of
representatives in the European Parliament by direct universal suffrage;
- Part Two (Simplification) refers to the simplification of the Treaties establishing the three
European Communities, seeking to eliminate provisions that are no longer present to adapt the
wording of certain provisions. This part provides a series of Abrogation of common institutions,
from March 25, 1957, and the Merger Treaty, signed on April 8, 1965, maintaining their effects;
- Part Three (General and final provisions) contains general and final provisions of the
Treaty: the new numbering system of items (the Maastricht Treaty, the indexing was done by
letter, by the Amsterdam Treaty is replaced by an index based on figures), the ratification
procedure, language versions, unlimited validity;
- The annex included a list of equivalence of the articles renumbered TEU and TEC;
- The Treaty of Amsterdam 13 protocols annexed to it: Western European Union and the
creation of a common defense policy, integrating the Schengen acquis within the European Union,
the positions adopted by Denmark, Ireland and the UK on some issues, implementation of the
principle of subsidiarity and proportionality, protection and welfare of animals, the role of national
parliaments in the European Union, etc.
Among the requirements which imposed the adoption of the treaty in order to amend the
Maastricht Treaty are the following:
- Need to increase the European Parliament's role in decision making;
- Need to refine the operating system of two important pillars of the European Union:
Common Foreign and Security Policy (CFSP) and cooperation in justice and home affairs (JHA);
- Need to remove the technocracy that dominates the work of the Community institutions
and the effect of distancing their citizens;
- Need to reduce disagreements between the small and large EU countries in relation to
various aspects of community activities, particularly in the area of achieving future political union.
Treaty of Amsterdam entered into the scope of its concerns matters of particular importance
for the development of European integration and community building developments, of which we
mention:
- Greater flexibility in the design integration of new candidate countries in their level of
development;
- The possibility offered by the EU Council that unanimously on a proposal or a third of
Member States and the European Parliament's opinion may suspend certain rights of the State
seriously and persistently violating human rights;
- Enhance the powers of the Communities in some areas (environmental protection);
- Specifying the relationship between national and Union citizenship, in that last one up on
the national and not replaced;
- Indication of the competence of EU institutions in view of enlargement (up to 700 MPs)
and in terms of qualified majority voting;
- New regulations on visa free movement of persons and arrangements;
- New regulations regarding social policy and employment [76].
Amsterdam Treaty also provided, through a protocol, further discussions on reform. The
decision to hold an intergovernmental conference, having regard to the provisions of this Protocol,
was taken at the Koln European Council, from 3 to 4 June 1999.
The official opening of the Intergovernmental Conference held on February 14, 2000, in
Brussels. On this occasion, candidates states were aware of the importance of the following:
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Formal adoption and implementation of the acquis and ensure the smooth functioning of the
internal market, in line with EU policies, with a special emphasis on agriculture, justice and affairs
and environmental protection practices align to EU relations with third countries and international
organizations. Also, the candidate states received assurances that each application for membership
will be judged on its merits.
A milestone was the adoption, at the meeting in Nice (at December 7, 2000) of the Charter
of Fundamental Rights. The special significance of this document, but also the content of its
provisions have led some experts to see its adoption as a step towards developing future EU
Constitution. EU Charter of Fundamental Rights [77] summed in a single document for the first
time in European history, the whole area of civil, political, economic and social rights. As to the
scope of legal issues, the Charter makes no distinction between citizens and foreigners,
comprising, for the first time in a single document, the rights of all persons who are lawfully
within the EU. In light of the Charter, it can be said that through this important document was
accepted, reaffirmed and developed fundamental legal norms on human rights, but avoiding to go
too far in subsuming other international documents (or the competence of Member States) [78].
The conference ended with the Nice European Council meeting held on 7-11 December
2000, when it was decided to accelerate the accession negotiations with candidate countries and
positively appreciated their effort to qualify for the adoption and application of the acquis. Council
also discussed the European Security and Defence Policy, European Social Agenda approved,
reviewed the process of European research, coordination of economic policies, consumer health
and safety, maritime safety, environmental protection services of general interest Freedom,
security and justice, culture, remote and external relations. Intergovernmental Conference ended
on December 11, 2000, with a political agreement on signing the Treaty of Nice, the Heads of
State or Government nominated for this purpose as their plenipotentiaries the foreign ministers of
member countries.
Thus, on February 26, 2001, after having exchanged their full powers, found in good and
due form, they signed the Treaty of Nice [79], which was a reform in the sense of improvement
and adaptation of the Community institutions community to new realities.
The main changes made by this Treaty refer to limiting the size and composition of the
Commission, the extension of qualified majority voting, a new balance of votes in the Council
flexibility and strengthening of cooperation agreements. In addition, there have also been
addressed other institutional issues, namely: simplification of the treaties, defining the powers, the
Charter of Fundamental Rights and the role of national parliaments. Declaration on the Future of
the European Union annexed to the Treaty, setting out steps to be taken to deepen institutional
reform.
European Council in Laeken (Belgium), held from 14 to 15 December 2001, decided to
convene the Convention on the Future of Europe, chaired by Valery Giscard d'Estaing [80]. Work
of the European Convention, which began on February 28, 2002 and ended in July 2003, aimed to
determine the key issues to be considered having regard to the future of the European Union and to
identify possible options for solutions. Convention work was particularly burdensome, but it
finally adopted the "Draft Treaty of establishing a Constitution for Europe."
The project developed by the Convention established the future of key issues, namely:
- Defining Europe as a Union of states and citizens;
- Intended to build a community of values and rights, a unified economic space and money
and an influential entity on the international scene;
- Maintenance of inter-institutional balance through strengthening the powers of the
European Parliament, Commission and Council;
- Overcoming thick structures established by previous treaties;
- Attribution of international legal personality to the Union;
- Integration in the Constitutional Charter of Fundamental Rights;
- Clearer division of competences between the Union and Member States regarding national
identity and their national organization;
- Introduction of mechanisms to ensure real respect for subsidiary and wider participation in
the life of national parliaments;
- More flexible rules regarding cooperation, in order to allow a group of states to continue
the integration process, a permanent vanguard open to accession of the states that did not want or
could not participate in the cooperation since started;
- Streamlining provisions and European legal and financial instruments by introducing a
hierarchy of legal texts containing framework laws and European laws adopted jointly by
Parliament and Council;
- Improving the provisions on foreign, security and defense;
- Strengthening the unique space of freedom, security and justice;
- A further extension of qualified majority voting;
- Adopting the conventional method for designing future constitutional revision;
- Providing a right out of the Union [81].
At the Brussels European Council, held from 17 to 18 June 2004, Heads of State or
Government of Member States have reached agreement on the Treaty establishing a Constitution
for Europe, and so on 29 October 2004, in Rome, Heads of State or Government of Member States
[82] and three candidate countries [83], signed the Treaty establishing a Constitution for Europe,
known as the "constitutional treaty" or "European Constitution".
The final form of the Treaty establishing a Constitution for Europe is in fact true expression
of what is today the European Union: compromise reached after a long process of negotiations and
attempts to obtain a balance between the two great currents of opinion: the integrationist and the
one who decides to maintain the status quo of the current EU, national governments retain a
significant power. Treaty demonstrates the prevalence of the European spirit, resulting in the
maintenance of a balance between European and its Member States.
What is new in this Treaty essentially boils down to:
- Reduce the number of application areas by unanimous decision;
- A new mechanism for making decisions by qualified majority within the Council, clearer,
more effective and better reflects the double nature of the EU as a Union of states and peoples;
- A clearer delineation of responsibilities and simplify EU instruments available to EU
institutions;
- Opening to the public of the Council's legislative work;
- A greater flexibility in adapting the Community legal framework, depending on future
developments;
- Creating the office of Minister of European Affairs;
- Establish a stable European Council Presidency;
- Provisions relating to reinforce solidarity between Member States;
- Increasing cooperation in foreign policy and security policy;
- Conferring single international legal personality for the EU;
- Include, as part of the Constitution, the Charter of Fundamental Rights;
- Introduction of legislative initiative by citizens;
- Increasing the role of national parliaments in EU activities.
As stated, the Treaty would enter into force when all Member States had deposited
instruments of ratification, setting the deadline is November 1, 2006. Following the referendum in
France (May 29, 2005) and the Netherlands (1 June 2005), the Treaty was rejected, many voices
Dan Vataman 125
saying that "the European Constitution Treaty died in France and was buried in the Netherlands",
not few are those who believed that the political project of United Europe died before birth.
Following these consultations of citizens called to rule on the Treaty, became evident a
number of issues and challenges currently facing the European Union. First, it is obvious damage
to the relationship with citizens as the direct beneficiary of the policies and actions undertaken at
Community level. Secondly, it is necessary to maintain the principle of subsidiary and national
level as the main level of Community intervention and decision only if the added value is a fact.
Thirdly, closely related to the principle of subsidiary is also the tackling of the democratic deficit.
The European Parliament has failed to transform itself into the representative body for European
citizens, as initially wanted as evidence is the fact that turnout at elections is low.
Following these results and to overcome the impasse created by the Treaty rejection in
France and Holland, the European Council held in Brussels from 16 to 17 June 2005, decided to
launch a period of reflection in which the national debate to take place to involve citizens, social
partners, institutions to find a solution for the future of the Union. In addition, in September 2005,
Parliament decided to set a period of reflection for itself and a group responsible for structuring the
debate on the future of the context analysis. Thus, to revitalize the debate on the future of Europe,
the Reflection Group has proposed a series of conferences between national and European
parliaments, called parliamentary fora. The first such forum was to be held in spring 2006,
before the June European Council [84].
Combined efforts of the European Council and European Parliament, European Commission
launched in October 2005 a "Plan D" [85], mainly aimed at stimulating debate between citizens and
EU institutions to propose ideas on the way in which the EU can become more democratic, more
transparent and efficient. Also, the European Commission launched an action program, which
enjoyed the support of informal European Council at Hampton Court (London), October 2005, took
the double approach outlined in An agenda for Citizens. It stated that to address the imperatives
facing Europe in terms of policies requires adequate tools and appropriate working methods.
After a period of political consultations, the European Council in Brussels in June 2007,
agreed to convene an Intergovernmental Conference (IGC) in July 2007. In this particular sense, a
mandate was adopted, which provided in detail the elements of reform. The mission of the
Intergovernmental Conference was to adopt the text of a Reform Treaty "to amend the existing
treaties in order to enhance the effectiveness and democratic legitimacy of the enlarged Union and
the consistency of its external action.
In this regard, the mandate of the Intergovernmental Conference shows that it is abandoned
the constitutional concept, which consisted in repealing all existing Treaties and replacing them
with a single text called "Constitution".
It also indicated that the Reform Treaty will introduce into the existing Treaties, which
remain in force, the innovations resulting from the IGC since 2004 (CIG 2004), as detailed below:
- The Reform Treaty will contain two substantive clauses amending respectively the Treaty
on the European Union (TEU) and the Treaty establishing the European Community. (TEC). The
TEU will keep its present name and the TEC will be called Treaty on the Functioning of the
Union, the Union having a single legal personality. The word "Community" will throughout be
replaced by the word "Union"; it will be stated that the two Treaties constitute the Treaties on
which the Union is founded and that the Union replaces and succeeds the Community. Further
clauses will contain the usual provisions on ratification and entry into force as well as transitional
arrangements. Technical amendments to the EURATOM Treaty and to the existing Protocols, as
agreed in the 2004 IGC, will be done via Protocols attached to the Reform Treat.
- The TEU and the Treaty on the Functioning of the Union (new name of the TEC) will not
have a constitutional character. The terminology used throughout the Treaties will reflect this
change: the term "Constitution" will not be used, the "Union Minister for Foreign Affairs" will be
called High Representative of the Union for Foreign Affairs and Security Policy and the
denominations "law" and "framework law" will be abandoned, the existing denominations
"regulations", "directives" and "decisions" being retained. Likewise, there will be no article in the
amended Treaties mentioning the symbols of the EU such as the flag, the anthem or the motto.
Concerning the primacy of EU law, the IGC will adopt a Declaration recalling the existing case
law of the EU Court of Justice [86];
- As far as the content of the amendments to the existing Treaties is concerned, the
innovations resulting from the 2004 IGC will be integrated into the TEU and the Treaty on the
Functioning of the Union, as specified in this mandate. Modifications to these innovations
introduced as a result of the consultations held with the Member States over the past 6 months are
clearly indicated below. They concern in particular the respective competences of the EU and the
Member States and their delimitation, the specific nature of the Common Foreign and Security
Policy, the enhanced role of national parliaments, the treatment of the Charter of Fundamental
Rights and a mechanism, in the area of police and judicial cooperation in criminal matters,
enabling Member States to go forward on a given act while allowing others not to participate [87].
In conclusion, Portugal, who took over the EU Council presidency on July 1, 2007, was on
the agenda as a priority of the first Intergovernmental Conference (IGC), the drafting of the future
EU treaty. For the IGC to conclude its task as soon as possible, in any event before the end of 2007
so that sufficient time be available for treaty ratification, before parliamentary elections in June
2009, it was decided that the Portuguese Presidency to prepare a version The preliminary text of
the Treaty, in accordance with the terms of office, text to be submitted to the IGC as soon as it
opens. It was also decided that: IGC to be held under the overall responsibility of Heads of State or
Government, assisted by members of the General Affairs and External Relations Council, a
Commission representative to attend the conference, the European Parliament to be closely
associated and involved Conference to work with a number of three representatives, the Council
Secretariat to provide activities for the Conference secretariat.
Following consultations and negotiations [88], it was possible that at the informal European
Council that took place from October 18 to 19, 2007, to arrive at an agreement on the Reform
Treaty text, which will be signed during the summit, in December 2007 in Lisbon.
Consequently, at December 13, 2007 at a summit in Lisbon (Portugal) was signed the
Lisbon Treaty, officially named "Treaty of Lisbon amending the Treaty on European Union and
the Treaty establishing the European Community.
Entry into force of the Lisbon Treaty ratification depended on each of the 27 EU Member
States [89], unrealized process until the set deadline. According to Art 6 of the Treaty of Lisbon, it
was to come into force on 1 January 2009 provided that "all the instruments of ratification have
been deposited, or, failing that, on the first day of the month following the deposit of the
instrument of ratification by the last signatory State to take this step. Until all Member States
have concluded the ratification process of the Lisbon Treaty, the European Union working base
remained the Nice Treaty.
Since December 1, 2009, the Lisbon Treaty enters into force, providing the EU legal
framework and legal instruments needed to meet future challenges and to meet citizens'
expectations. Thus, under Article 1, item 2 of the Treaty of Lisbon, the European Union (based on
the Treaty on European Union and on the Treaty on the Functioning of the European Union, both
having the same legal value) is substituted to the European Community and succeeds it.
Other reforms proposed by this Treaty, in particular new institutional arrangements and
mechanisms work can be summarized as follows:
- Granting legal status binding Charter of Fundamental Rights through its introduction in
European primary law. Charter is a true compendium of rights enjoyed by citizens to European
Dan Vataman 127
legislation, such as the right to integrity, the prohibition of torture or inhuman or degrading
treatment, right to liberty, respect for private and family life, right to education, ownership of non-
discrimination, gender equality, cultural, linguistic and religious diversity etc;
- Strengthening the role of citizens (one million citizens from a significant number of
Member States may request the Commission to submit a proposal in an area it considers that
action is needed for the Union). Introduction of new possibilities for action at EU level in areas of
interest to citizens, such as energy, citizen safety, social, climate change, combating terrorism;
- European Council will have a stable President (with a term of two and a half years,
renewable), giving the EU greater continuity and political vision;
- Enhance the role of European Parliament. It will be directly elected by EU citizens and
will have new powers of legislation, the EU budget and international agreements. It will use that
more often co-decision procedure in EU policy, European Parliament will be on an equal footing
with the Council, representing Member States in respect of most adoption of EU legislation;
- Keeping the principle of representation in the European Commission under "a state
commissioner" until 2014, after which the Commission will be restructured College (two-thirds of
the Member States, equal rotation);
- Has strengthened role of national parliaments (informing them of the draft laws initiated
by the Union or the applications to join, increased involvement of national parliaments in matters
concerning the area of freedom, security and justice, strengthening their role in subsidiary
monitoring). Along with the enhanced role of the European Parliament, national parliaments
involved will lead to strengthening the democratic nature and to increase legitimacy of EU action;
Expanding the field in which decisions are taken by the Council by qualified majority
(instead of unanimity) or by using qualified majority in areas that are now voted unanimously
(asylum, immigration, Europol, Eurojust, border control initiatives High Representative for CFSP,
common transport policy, objectives and organization of the Structural Funds and Cohesion Fund,
etc..) or by extending qualified majority voting in new areas where there is no legal basis in the
treaties currently in force (own resources Union's space policy, energy, sports, tourism, civil
protection, permanent structured cooperation on defense, diplomatic and consular protection,
voluntary withdrawal of a Member State of the Union the right to popular initiative, the services of
general economic interest, humanitarian aid etc.). Since 2014, calculating the qualified majority
will be based on a double majority system, member states and population, reflecting the Union's
double legitimacy. Double majority is achieved when a decision is taken by vote of 55% of
Member States representing at least 65% of the population. The new method will simplify EU
legislative process, resulting in greater efficiency in European decisions, with tangible results at
the Europeans;
- Maintain innovations to foreign policy and security policy of the Constitutional Treaty,
and the defense, taking over most of the provisions in these areas. It is introduced the possibility of
closer cooperation between Member States interested in security and defense (permanent
structured cooperation). It also provided visibility and coherence of European action in these areas
by establishing the post of High Representative for Foreign and Security Policy who will chair the
Council of Foreign Relations and will be at the same time one of the Vice-Presidents of the
Commission. He will have as provide the Constitutional Treaty, a European diplomatic service;
- Inclusion of a solidarity clause between Member States for a series of threats such as
terrorism, natural disasters or human origin, or energy problems;
- Treaty provides a legal framework for establishing a special relationship between the
Union and neighboring states. For the first time in the history of European construction, the
importance of Union's neighborhood relations is established at treaty level. Also, a number of
provisions allowing flexibility and strengthening the Union's action regarding the area of freedom,
security and justice, providing responses in areas of current citizens as well as migration, fight
against organized crime or terrorism;
- Granting single international legal personality of the European Union (part that will allow
consistent and increased visibility on the international stage, its ability to become a representative
or member of an international organization). The international legal personality will strengthen the
Union power bargaining, causing it to be more efficient in the world and a more visible partner for
third countries and international organizations [90].

5. Conclusions
Before becoming a real political objective, the idea of uniting Europe was merely a dream of
philosophers and visionaries which, unfortunately, was shattered by terrible wars that have
ravaged the European continent in the first half of the twentieth century. After World War II the
need for peace and stability on the European continent in prosperity and to regain the position of
cultural, political and economic world has forced European countries to search for pragmatic
solutions, in fact transform the idea of unification. In this way, the EU has become from a utopia a
reality based primarily on an economic union, which, in the current period, is facing new
challenges designed to reconfigure its existence.
Thus, in a world in constant evolution, the European Union faces new challenges of the
XXI
th
century: economic globalization, demographic change, climate change, the need for
sustainable energy sources and new security threats.
All these aspects do not respect borders, and EU Member States are no longer able to face
all these problems alone. To find solutions and address the concerns of citizens, a collective effort
was needed at European level. Europe needs to modernize, to have effective and consistent tools,
not only adapted to the functioning of a Union recently extended from 15 to 27 Member States but
also to rapid changes which the world today is facing. Therefore, the rules underpinning
cooperation between countries needed to be reviewed.
This was the objective of the Treaty signed in Lisbon on December 13, 2007, when EU
leaders agreed on new rules taking into account the political, economic and social changes and
wanting to meet the aspirations and hopes of the Europeans. Thus, the Lisbon Treaty established
which are the European Union powers and the means that it can use and modified the structure of
institutions and their functioning. However, the Lisbon Treaty has strengthened the Union's
capacity to act, by improving the coherence of external actions, choice of domestic policies,
obtaining better results and policy achievements in terms of citizens and upgrading institutions so
as to ensure the operation of a Union of 27 Member States.
These elements give the Union an opportunity to better implement its policies to ensure
growth and competitiveness, improving social and working conditions, enhance personal and
collective security, to promote a cleaner environment and better health conditions, develop
cohesion and solidarity among Member States as well as scientific and technological progress and,
not least to improve their ability to act externally.
Given the foregoing, it is difficult to formulate predictions on the evolution of the European
Union in the near future, especially given that the Treaty allowed for the first time the possibility
of withdrawing from the Union, but this does not prevent the recognition and acceptance of
records: The Union develops, progresses, rendering states in a novel management structure,
potential archetype of the future political system.
The evolution of the European Union to a higher stage of federalization or contrary to a
prevailing multilateralism will not eliminate the original character of community building as the
Dan Vataman 129
Union moves gradually, in my view, to an entirely different model of political organization
different from the existing ones, model which has not yet received a proper name or definition.

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Other sources:
25. www.fondationspaak.org;
26. www.eur-lex.europa.eu - Portal access to the European Union;
27. www.ier.ro - European Institute of Romania;
28. www.infoeuropa.ro - site of the European Commission's Information Centre in Bucharest;
29. www.mae.ro - official website of the Ministry of Foreign Affairs of Romania.

Notes:
[1] J.B. Duroselle "The idea of European Unity" in European Integration, Baltimore: The
Johns Hopkins Press, 1957, p.11.
[2] League of Delos was a confederation of Greek Ionian city-states led by Athens and founded
in 478 BC response to claims of domination of Sparta on the Greek cities, but also as a form
of self-help to repel any possible attack from the Persian Empire.
[3] Peloponnesian League was based on an alliance between Sparta and Tegea that the city is
obliged to give aid the Spartans in war and rebellion against helot. This alliance later joined
other cities in the central area of the Peloponnesus, to be allied with Sparta concerned, this is
the most powerful state in military terms.
[4] The Romanian state has experienced several periods of development in terms of their
shapes its organization. First it has evolved during the royalty (mid-century. VI BC - until
509 BC), then during the republic (509 BC - 27 BC), because during the monarchy or
Empire to evolve in two stages, namely: Principality (27 BC - 284 AD) and dominance (284
AD - 565 AD).
[5] Charles the Great (768-814 AD), in his attempt to revive the Western Roman Empire, led
numerous campaigns against Lombard conquest (773-774), the Saxons (772-804), Moors
(785-812 ) and the Avars (791-797) after which he founded an empire which included
among its outside Gaul, northern and central Italian peninsula, northeast of the Iberian
Peninsula and extensive lands east of the Rhine, for which May is sometimes seen as a
founding father of both France and Germany.
[6] Otto I or Otto the Great (912-973 AD) was a German king since 936 and 962 became the
first Holy Roman Emperor after Pope John XII crowned in Rome.
[7] Great Schism of 1054 divided Christianity into two main branches: Catholic and Orthodox.
The main causes were disputes over papal authority and those relating to jurisdiction over
certain areas or certain liturgical practices.
[8] Charles-Irne Castel, abb de Saint-Pierre (1658-1743), thought that to avoid war and
ensure "peace and future" for trade development, sovereigns should conclude a perpetual
alliance, to submit a "European Senate" which have a common army, maintained by
contributions paid by member countries. It is proposed as a collective security system to
ensure the existence and integrity of participating states.
[9] Jeremy Bentham (1748-1832) was a lawyer, English philosopher and social reformer. The
project goal was to reduce and stabilize its labor system of different components of
European nations, by removing the treaties of alliance, offensive or defensive trade
agreements with unilateral advantages, the naval forces in excess, by dismantling the
colonial system. He proposed a treaty of general and permanent, which is supported
primarily by Britain and France, as a condition of pacification of Europe warranty. To
implement it he proposed convening a European Congress with the participation of a pair of
delegates from each country and a common Court of Justice for settlement of disputes
between nations.
[10] Jean Jacques Rousseau (1712-1778) was a philosopher, writer and French composer, one
of the most brilliant thinkers of the Enlightenment. Influenced decisive revolutionary spirit,
principles of law and social consciousness of the era, his ideas can be found in the changes
promoted by the French Revolution of 1789.
Dan Vataman 131
[11] Alphonse Marie Louise de Prat de Lamartine (1790-1869) - poet, writer and French
politician.
[12] Victor Hugo (1802-1885) - French poet, novelist and writer.
[13] Irina Moroianu Zltescu, Radu C. Demetrescu, 2005, p. 15.
[14] At the end of World War balance of casualties was a tragedy: over 10 million soldiers
were killed and another 10 million perished because of disease. Were killed, also, 13 million
civilians, nine million of 10 million refugees and prisoners completing the list of disasters
Zorin Zamfir, Jean Banciu, 1995, pp 334-335.
[15] In an opening week of the Paris Peace Conference to constitute a committee with the task
of drafting the constitution of the League, as part of the peace treaty. Final draft of the
document, called the League of Nations Covenant was approved unanimously by the
plenary session of the Conference on April 1, 1919, but that pact was included in the Treaty
of Versailles, the official date of incorporation of the same League the entry into force of the
Treaty of Peace, after its ratification, on 10 January 1920.
[16] Viorica Moisuc, 2002, p. 108.
[17] George Sbrn, 2002, p. 18.
[18] Count Richard Nikolaus von Coudenhove-Kalergi (1894-1972) was a journalist, political
thinker and militant federalist European Austrian origin.
[19] Irina Moroianu Zlatescu, Radu C. Demetrescu, op. cit., p. 16.
[20] George Sbrn op. cit., p. 26.
[21] Aristide Briand (1862 -1932) - French politician and statesman who served several times
as Prime Minister of France and were awarded the 1926 Nobel Peace Prize.
[22] George Sbrn op. cit., p. 38.
[23] tefan Delureanu, 1999, p. 45.
[24] Vespasian V. Pella (1898-1952) - Romanian lawyer and diplomat, delegate to the League
of Nations Assembly sessions and committee member in various committees of this
international organization. Envoy Extraordinary and Minister Plenipotentiary at The Hague
(1936) and Berne (1943-1944). Substitute Committee to amend the Covenant of the League
of Nations in order to make them consistent with the Pact of Paris (1930). He played an
important role in the development Balkan Conferences (1930, 1931, and 1933). Delegate to
the Conference of Disarmament (1932-1934). Following the assignment of moral
disarmament Committee Political Committee of the Conference of Disarmament, VV Pella
does it a memorandum, known as the "Memorandum Pella" in connection with the
adjustment of national laws to the fundamental requirements of international life. Member
of the European Danube Commission, Secretary General of International Bureau for the
Unification of Criminal Law.
[25] "Universul"/9 Iunie 1930.
[26] Martin Vogt, "Die deutsche haltung Briand-Plan zum im Sommer 1930 und Hintergrnde
der Europapolitik politisches Umfeld des Kabinetts Brning", in Le Plan Briand, Bern,
1998, pp 307-329.
[27] Charles G. Dawes was director of the U.S. Budget Bureau in 1921 and member of the
Allied Commission for repairs since 1923. Work done to "stabilize the German economy
brought him his Nobel Peace Prize in 1925. After being elected Vice-President Calvin
Coolidge during his mandate (the XXX-century U.S. president) in 1931 was appointed U.S.
Ambassador to England.
[28] Eliza Campus, 1968, pp 97-110.
[29] N. Titulescu (1882-1941) - Romanian diplomat and politician repeatedly minister, former
president of the League twice in succession. Based his entire work on major fundamental
issues of the Romanian foreign policy. After the establishment of fascism in Germany,
realizing the danger he represented him for the European continent, has made a living
N.Titulescu work towards strengthening international cooperation in the interest of
European peace and security. Convention has contributed to defining the aggressor (London,
1933) and reorganization of the Little Entente (1933) and adoption of the Balkan Entente
(1934).
[30] Andrei Popescu, Ion Jinga, 2001, pp 4-5.
[31] On September 19, 1946, Winston Churchill gave a speech in the Aula of the University of
Zurich (Switzerland), which stated: "Our goal must be constantly strengthening the United
Nations force. Under this concept and the need to recreate the European family in a regional
structure called - probably - United States of Europe and the first practical step would be
formation of a Council of Europe. If at first not all states will be willing or able to join a
union, we need to gather those who will and who may participate. Save all ordinary people
from all countries and all races of war and subjugation must have a strong foundation, and
be created by decision of all men and women to die rather than live under tyranny. In all
these urgent issues, France and Germany must take the lead together. UK, British
Commonwealth, America strong and - hopefully - Soviet Russia - for then, really,
everything will be fine - to be friends and supporters of the new Europe and must fight for
her right to live. So I tell you: Leave Europe to stand up! "- Winston Churchill Conference
at the University of Zurich, September 19, 1946, published in The Times, September 20,
1946.
[32] In January 1947, Winston Churchill set up in London "Provisional Committee for a United
Europe", composed of leaders of the three major UK political parties: Conservative, Liberal
and Labor as well as academics and leaders of religious organizations. The Committee then
turned to "Movement for a United Europe." Themselves at a conference convened in
London by the UK Labor Party in 22 to 23 February 1947, socialist parties have formed an
organization called "Socialist Movement for the United States of Europe." In June 1947,
was founded in Chaudfontaine near Liege, Belgium, the organization "New International
Teams, Christian democratic orientation. Initiative of creating this organization was taken
by Robert Bichet of France, and Dsir Auguste de Schryver Lamalle and Belgium. The
initiative was supported among others by Robert Schuman, Georges Bidault, Alcide De
Gasperi and Konrad Adenauer. A first attempt to coordinate activities of all these
organizations was held in Paris on July 17, 1947. She was followed by a second meeting on
November 10, 1947, when it was established a Coordinating Committee that representatives
of those organizations. Committee, entitled "International Steering Committee of the
Movements for European Unity" was intended to organize the Congress of Europe, which
were to participate with people who championed the idea of a united Europe.
[33] A number of resolutions were adopted at the end of Congress, seeking, inter alia, the
creation of economic and political union to guarantee security, economic independence and
social progress, the establishment of a consultative assembly elected by national
parliaments, the drafting of a book European human rights and the establishment of a
tribunal to enforce its judgments. All the themes around which Europe was to be built were
already sketched in the initial design. Congress also revealed differences that were soon to
separate unconditional supporters of a European federation (France and Belgium) of those
who favored a simple intergovernmental cooperation, such as Britain, Ireland and
Scandinavian countries.
[34] On October 25, 1948, the International Coordination of Movements for European Unity
decided to change its name to the European Movement. On this occasion, Duncan Sandys
Dan Vataman 133
was elected president of the new organization, and Leon Blum, Winston Churchill, Alcide
De Gasperi and Paul-Henri Spaak was appointed honorary chairman. Since 1948, the
European Movement has played a key role in European integration process, exerting a
massive influence in institutions nationally, regionally and internationally. She campaigned
for direct elections to European Parliament for citizens of Europe and the Treaty on
European Union and the European Constitution. European Movement permanent role in
strengthening European institutions and ideals is recognized by senior officials and
politicians from European countries.
[35] Dan Vtman, 2008, p. 70.
[36] Marshall Plan, officially known as the European Recovery Program (ERP) was first
reconstruction plan developed by the United States and for European allies in the war. On
June 5, 1947, in a speech in Harvard Hall, Secretary of State George Marshall announced a
broad program of economic assistance for the recovery of European economies in order to
restrain Communist expansion, a phenomenon which he considers related issues economic.
U.S. support has taken various forms: loans with favorable interest and repayment terms,
free supplies, and low prices. All this was made possible by the conclusion of several
bilateral treaties that have defined the conditions of their grant each Member assisted. Soviet
Union and the countries under U.S. domination they refused the proposal.
[37] Dan Vtman, 2008, p. 96.
[38] On October 28, 1948, the International Committee who organized the Hague Congress
created the "European Movement", the official organization for continuous progress of
European unification. Its honorary presidents of the Frenchman Lon Blum became Winston
Churchill, the Italian De Gasperi and Paul-Henri Spaak Belgian, who guaranteed the
international and non-partisan.
[39] Nicolae Ecobescu, Mariana Nielea, 2006, p. 35.
[40] First signatories to the Statute of the Council of Europe countries were: Belgium,
Netherlands, Luxembourg, United Kingdom, Ireland, France, Denmark, Norway, Sweden,
Italy.
[41] Nicolae Ecobescu, Mariana Nielea, 2006, p. 36.
[42] Dan Vtman, Organizaii europene i euroatlantice, Bucureti, Editura C.H. Beck, 2009
p. 23;
[43] Viorel Marcu, 1994, p. 15.
[44] Michel Debr (1912 -1996) was a French politician, was the first prime minister of the
French Fifth Republic. The instruction of General Charles de Gaulle he prepared a draft
constitution which was approved by referendum on September 28, 1958, which became the
Constitution of October 4, 1958 is often called the Constitution of the Fifth Republic
(Constitution of the Cinquime Rpublique ).
[45] Viorel Marcu, Mihai Ioni, 2006, p.9.
[46] Jean Monnet, head of France's General Planning Commission, concluded that it was
illusory to try to create a complete once a supranational institutional edifice without a face
strong resistance from the states recently emerging from war. In his opinion, to succeed, had
the desired objectives of cooperation between European countries is limited to specific
areas, but with a strong psychological impact and the decision to establish a mechanism to
receive, then new skills gradually. Behind this initiative was: it was unlikely to be imposed
unilaterally on Germany's control of its heavy industry, but on the other hand, it was
considered completely independent leaving a potential threat to peace, so the only solution
was that of German integration (in terms of political and economic) in a highly structured
European community.
[47] www.robert-schuman.org - the official site of the Robert Schuman Foundation.
[48] Jean Monnet, Mmoires, Paris, Edition Fayard, 1976, p. 378.
[49] CECA: La Communaut europene du charbon et de lacier, and ECSC: The European
Community of Steel and Coal.
[50] Decision 2002/234/ECSC of the Representatives of the Governments of the Member
States, meeting within the Council, of 27 February 2002, on the financial consequences of
the expiry of the ECSC Treaty and on the research fund for coal and steel - Official Journal
of the European Communities L 79/42, 22.3.2002.
[51] Ion Jinga, Andrei Popescu, 2000, p. 140.
[52] In the early '50s, the U.S. has developed a rearmament plan of West Germany, which has
sparked vehement opposition of France. To allay fears that it would have caused only a few
years after the end of World War II, the restoration of German military and rearmament of
West Germany firmly anchored in the European construction project, France came in
October 1950, with a counter-project, called Pleven Plan: the creation of a European
Defense Community (European Defense Community). After heated debate and negotiations
held in May 1952 that the treaty should establish EDC was signed by the six founding
countries of the ECSC - France, Belgium, Netherlands, Luxembourg, Italy and West
Germany. Community project envisaged the establishment of a European army fully
integrated (with common uniform and their flag), composed of 40 divisions (14 French, 12
German, 11 Italian and three Benelux countries), having led to a European minister of
defense. However, in September 1952, negotiations were launched aimed to implement
Article 38 of the EDC Treaty, which stipulated the need for strengthened democratic control
over the new community. The new project should be that of a European Political
Community (European Political Community), based on a system of joint decision-making
bodies. But at August 30, 1954, the French National Assembly (French parliament) refused
to ratify the treaty that established the European Defense Community, in these
circumstances both CEA and the related draft it, and a European political community, fell
into disuse for the details see Dan Vtman, Drept comunitar european, Bucureti, Editura
Universul Juridic, 2009, p. 24;
[53] Benelux - is the acronym used to refer to an economic union in Western Europe that
comprises three neighboring monarchies: Belgium, Netherlands and Luxembourg. The
Union's name is formed from the beginning of each country's name.
[54] Paul-Henri Spaak (1899-1972) - Belgian politician, signatory of the Treaty of Rome by
Belgium, as foreign minister. After the war, was involved in the most important European
organizations and initiatives: Benelux, European Movement, Council of Europe Congress of
Europe, etc. Was on the management of several major international organizations as the first
president of the UN General Assembly (1946), Chairman of the Council of Europe
Parliamentary Assembly (1949-1951), Secretary General of NATO (1957-1961). In 1952,
he became the first chairman of the Joint Assembly of the European Coal and Steel
Community - for details see www.fondationspaak.org
[55] Pierre Gerbet, Le construction de lEurope, Imprimerie Nationale, Paris, 1994, pp. 170-
188.
[56] Article 3 of the EEC Treaty (Treaty establishing the European Economic Community)
[57] Article 4 of EEC Treaty
[58] Article 2 of EAEC Treaty (Treaty establishing the European Atomic Energy Community)
[59] Parliamentary Assembly and Court of Justice became common for the three communities
since 1958.
[60] On April 28, 1990, held a special European Council in Dublin (Ireland) where he agreed a
common position on German unification and the Community relations with countries in
Dan Vataman 135
Central and Eastern Europe. In the process of reunifying the two German states, the German
Democratic Republic was included in the European Communities, on October 30, 1990,
without being regarded as a new member, but only as a result of unification.
[61] Association Agreement was ratified by the Romanian Parliament by Law no. 20/1993,
published in Official Journal no. 73 of 12 April 1993.
[62] On 13 April 2005, the European Parliament adopts a Legislative Resolution in order to
give its assent to the application by Romania to become a member of the European Union.
Therefore, on April 25, 2005, in Luxembourg, Romania signed the Accession Treaty, while
he was drafted as a Protocol of Accession documents and Alternative an Act of Accession.
Thus, depending on time of entry into force of the Treaty establishing a Constitution for
Europe, if it had occurred before the accession of Romania's Accession Protocol was
annexed to the Treaty establishing a Constitution for Europe. Rejection of the Treaty
establishing the European Constitution by referendum by France (May 29, 2005) and
Holland (June 1, 2005) was not possible to enter into force on November 1, 2006, as
planned. Consequently, the documents signed by Romania entered into force the Act of
Accession, which is attached constituent treaties in force (the Treaty on European Union, the
Treaty establishing the European Community and the Treaty establishing the European
Atomic Energy Community), resulting status Romania's membership of the European
Communities - for details see Dan Vtman, Drept comunitar european, 2009 p. 28.
[63] Ion P. Filipescu, Augustin Fuerea, 2000, p. 14.
[64] Viorel Marcu, 1994, p. 17.
[65] French President rule strongly against any supranational organizations. He hardly
recognized the EEC and was determined to limit his power and influence and to reduce them
by as much as possible. His preference was an association of heads of state. In his memoirs,
de Gaulle declared that "myths writers want to see the assembly in Strasbourg a" European
Parliament ", which is, of course, no actual power, but gives" executive "appearance of the
Brussels democratic accountability - for details see Charles de Gaulle, 1970, p. 195.
[66] The Brussels Treaty entered into force on January 1, 1967.
[67] Article 24 of the Brussels Treaty.
[68] This was made possible by Charles de Gaulle's resignation in April 28, 1969, which put up
a fierce opposition to the expansion of Communities. However, France could not prevent
long-term extension. At the Hague Summit in 1969, de Gaulle's successor, Georges
Pompidou has agreed to resume negotiations, France received in exchange for his agreement
on the extension the permission to complete the project and develop the Common
Agricultural Policy.
[69] In Chapter two of title two of the Single European Act (SEA), entitled Provisions
amending the Treaty establishing the European Economic Community, Section I -
Institutional provisions, in Art. 6 states that: "Cooperation is a procedure which apply to acts
based on Articles 7, 49, 54 (2), 56 (2), second sentence, 57, with the exception of the second
sentence of paragraph 2 thereof, 100a, 100b, 118a, 130e and 130q(2) of the EEC Treaty.
Also states that: In Article 7, second paragraph of the EEC Treaty the terms after
consulting the Assembly shall be replaced by in co-operation with the European
Parliament.
[70] The Treaty entered into force after deposit of instruments of ratification on November 1,
1993.
[71] Article M of the Treaty on European Union provides that: "Subject to the provisions
amending the Treaty establishing the European Economic Community with a view to
establishing the European Community, the Treaty establishing the European Coal and Steel
Community and the Treaty establishing the European Atomic Energy Community, and to
these final provisions, nothing in this Treaty shall affect the Treaties establishing the European
Communities or the subsequent Treaties and Acts modifying or supplementing them.
[72] The Maastricht Treaty has created a European Union based on the European Communities
and supplemented by forms of cooperation and policies of the Treaty. Thus, the concept of
the EU Treaty was a building which rests on three pillars: the European Community,
Common Foreign and Security Policy (CFSP) and cooperation in Justice and Home Affairs
(JHA).
[73] Treaty of Maastricht amended EEC Treaty, replacing the term 'European Economic
Community with the term European Community, which he invested with sweeping
powers, giving it new purposes - Title II, Article G of Treaty.
[74] Augustin Fuerea, 2006, pp 46-47.
[75] The full name is the "Treaty of Amsterdam amending the Treaty on European Union, the
treaties establishing the European Communities and other related acts." The treaty entered
into force on May 1, 1999.
[76] Marcu Viorel, Mihai Ioni, 2006, p. 24.
[77] The draft charter was prepared by a Convention composed of 62 members: 15
representatives of the Heads of State or Government, 30 representatives of national
parliaments (two from each Member State how many), 16 representatives of European
Parliament, The European Commission's representative. The work of the Convention,
attended, as observers, two representatives of the Court and Council of Europe. In addition,
they were heard members of the Economic and Social Committee of the Regions, European
Ombudsman, representatives of countries of Central and Eastern Europe, experts and
representatives of NGOs. Civil society was consulted extensively, especially through a
website that has gathered contributions from many associations and groups. The draft
Charter was adopted by the Convention in early October 2000. Biarritz European Council on
13-14 October 2000 unanimously approved the project and to the European Parliament and
European Commission. EU Charter of Fundamental Rights was proclaimed by European
Commission President, European Parliament and Council President, following the Nice
European Council of December 7, 2000.
[78] Dan Vtman, Drept Comunitar European, 2009, pp.36-37.
[79] The full name is "Treaty of Nice amending the Treaty on European Union, the Treaties
establishing the European Communities and certain related acts." The treaty entered into
force on February 1, 2003, after being ratified by all Member States in accordance with
constitutional rules specify.
[80] Valery Giscard d'Estaing - French politician, who between 1974 and 1981 was the
twentieth president of France. He was President of the European Convention, which dealt
with the drafting of articles of the European Constitutional Treaty. For this, in 2003, Karl
was awarded the Aachen, which is offered annually for merit in European unification.
[81] Dan Vtman, Drept instituional al Uniunii Europene, Bucureti, Editura Universul
Juridic, 2010, p. 42.
[82] At that time, the EU had 25 Member States.
[83] Romania and other candidate countries (Bulgaria and Turkey), which participated in the
Intergovernmental Conference as an observer participated in this event, being invited to sign
the Final Act of the Intergovernmental Conference.
[84] European Parliament resolution of 19 January 2006, The period of reflection: the
structure, subjects and context for an assessment of the debate on the European Union,
published in OJ 287 / 24.11.2006, p. 306.
Dan Vataman 137
[85] Commission contribution to the reflection and beyond: Plan D for Democracy, Dialogue
and Debate - COM (2005) 494, 13.10.2005.
[86] Whilst the Article on primacy of Union law will not be reproduced in the TEU, the IGC
will agree the following statement: "The Conference recalls that, in accordance with well
settled case-law of the EU Court of Justice, the Treaties and the law adopted by the Union
on the basis of the Treaties have primacy over the law of Member States, under the
conditions laid down by the said case-law." In addition, the opinion of the Legal Service of
the Council (doc. 580/07) will be annexed to the Final Act of the Conference.
[87] For details see Council of European Union mandate for the IGC 2007, Doc. no. 11218 / 26
June 2007 - http://register.consilium.europa.eu
[88] During the negotiation of the Treaty of Lisbon, almost every country he fought for
something: France on terms that would ensure its protectionist policies, Britain to be
exempted from the EU Charter of Fundamental Rights, Parliament increased powers
Germany European Competitiveness Netherlands, Finland and Denmark against reducing
the number of commissioners. Poland won the maintenance Ioannina compromise (urging
inclusion of a provision in the Treaty allows Member States to block a decision for a
"reasonable period"). Bulgaria has requested the right to use the name "evro" for the euro.
Romania "have carefully reviewed all proposals of Member States and decided not to ask
anything.
[89] On February 4, 2008, the Romanian Parliament ratified the Lisbon Reform Treaty by Law
1 / 2008, which was promulgated by President of Romania, on February 6, 2008.
[90] Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the
European Community http://europa.eu/lisbon_treaty/full_text/index_ro.htm

THE MONETARY NEUTRALITY AND ITS IMPLICATIONS UPON
THE REAL ECONOMY
Alexandra ADAM
*

Ioana MOLDOVAN
**

Simona HUDEA
***

Abstract
The monetary neutrality considers the way the monetary decisions affect the real variables
and implicitly the real economy both on short term and long run. Although early study of this
problem is rooted in the '70s, the issue is studied also nowadays, as many works aim to test
whether the long-term monetary neutrality occurs indeed at any time, in any circumstances and
regardless of the area. This paper aims to analyse the answer to the following question: How do
monetary changes affect the main macroeconomic variables, such as output, real wages and real
interest rates?

Keywords: money, real interest rate, monetary policy, real wages, real variables

Introduction
In this article we consider particularly the discussion of some key issues regarding money,
the effects on real variables in short term and long run due to its changes. To reflect this interaction
between money and real economy, we considered it necessary to display different ideas acquired
by Keynesians and Monetarists. While the debate of these economists opinions pertaining to these
two trends seem to be of the past, from our point of view in order to develop new theories and
ideas is absolutely necessary to study the past.
Moreover, in order to highlight the importance of interaction between money and real
economy we could not neglect monetary neutrality, which is referring to how the monetary
decisions affect real variables (and implicitly the real economy) on short term and long run.
Although early study of this problem is rooted in the '70s, the issue is studied also nowadays, as
many works aim to test whether the long-term monetary neutrality occurs indeed at any time, in
any circumstances and regardless of the area.
This paper aims to analyse the answer to the following question: How do monetary changes
affect the main macroeconomic variables, such as output, real wages and real interest rates?
The answer to the question was obtained by analyzing several reference works on the topic,
one of them being Robert Lucas lecture, Nobel Laureate on monetary neutrality.
The need to capture the monetary implications on socio-economic and political space from
nowadays leads us to do, above all, a periplus in the literature, covering the history and evolution
of money because the latter is, rightly so, "the central axis" of the modern society.
*
Lecturer Assistant, Academy of Economic Studies, Bucharest (e-mail: [email protected]).
**
Lecturer Assistant, Academy of Economic Studies, Bucharest (e-mail: [email protected]).
***
Lecturer Assistant, Faculty of Economic Sciences, Nicolae Titulescu University, Bucharest (e-mail:
[email protected]).
Alexandra Adam Ioana Moldovan Simona Hudea 139
In the everyday language and literature, it is used not only the term "money", but also the
term "currency".
Money is "anything that is generally accepted as payment for goods and services and
replicas of debt (Mishkin 2004, 8). Money is, also, considered "a set of assets in an economy that
people regularly use to buy goods and services from other people (Mankiw 2007, 320). In the
explanatory dictionary of Romanian language, the money means "general equivalent value of the
goods, metal or paper currency recognized as a medium of exchange and payment.
The term of currency means "notes and coins" in Miskins opinion and according to
Larousse dictionary it means "a piece of metal issued by the sovereign authority to serve as a
medium of exchange".
The definitions above allow us to observe differences between the two concepts:
- the concept of money includes all means of exchange;
- the concept of currency is the generic name for banknotes and metal parts.
Nowadays, the term of currency is broadly used, which means consideration of coins,
banknotes and scriptural money. From this point of view, it is considered that the two terms are
similar, leading to the similarity of currency and monetary circulation (Vasilescu 1980, 15).
As the economy takes place in time and a considerable number of decisions are made in
situations of uncertainty, currency plays a vital role by creating a link between present and future.
Therefore, it is imperative to study it in light of two trends: Keynesism and Monetarism, which led
to the shaping of ideas on its role in the economy.

Monetarism vs. Keynesism confrontation of ideas
To reveal the importance of money we have to discuss the divergent views of Keynesians
and Monetarists from the 1950s until the 1970s (Bradford de Long, 2000, 83-94).
Europe has experienced for the first time what much later was to call monetarism in the XVI
century, under the influence of mercantilist doctrine, which saw the accumulation of precious as a
source of wealth nations. Unfortunately very few endowed with gold and silver, Europe was
obliged to seek different solutions to get rich with these metals. English people, due to a system of
contracts, forced every importer to buy with gold English products before leaving England. The
French people made low-priced manufactured goods guaranteed by the State in order to be more
competitive abroad. Payable in gold, these assets contributed to increasing the nation's stock of
precious metals. Spanish and Portuguese conquistadors went to South America to bring precious
metals and so to enrich considerably Spain and Portugal. Gold brought in Spain caused a real
economic crisis. Economic growth slowed and inflation appeared. Taking advantage of its
reserves, Spain multiplied minting gold coins, thus contributing to the devaluation of reference
monetary material and to further increases of the price.
The first relationship between real property and monetary system has been identified as a
result of the above events, opening the way for theoretical debates during the following centuries.
The increase of prices led to a famous controversy between Malestroit (Adviser to the Court
of Auditors) and Jean Bodin (French economist and philosopher). According to the first, the price
increase is only apparent because it is due to the currencys wear, these do not contain enough
gold. Jean Bodin considers the price increase as being real and takes account of the gold stocks
growth. His paper, Responses monsieur de Malestroit, announces the quantitative theory of
money.
These theories are then studied by David Hume in Of Interest, David Ricardo in the Des
principes de l'economie politique et de l'impt which defines the first principles of the Cambridge
equation, resumed by Latane in Cash, Balances and the Interest Rate: A Pragmatic Approach and
known as a "quantity theory of money by Fisher, the representative of early monetarism.
140 Lex ET Scientia. Economics Series
Monetarism is divided into four parts: First Monetarism, Old Chicago Monetarism, Classic
Monetarism and Political Monetarism.
First Monetarism belongs, among others, to Irving Fischer (Appreciation and Interest, The
Rate of Interest and The Purchasing Power of Money). In its work, the author stresses that to
understand the determination of prices, interest rates and the business cycle it should be seen first
the stock of money. Also, Fisher is the one who developed "quantitative theory of money". It is
true that this theory goes back to David Hume, or even earlier, but Fisher is the one who turned the
theory into a tool to achieve the quantitative analysis and for producing forecasts on prices,
inflation and interest rates.
The theory is mathematically represented as: MV = PQ, where M = money, V = velocity of
movement, PQ = total transactions. This simple equation allows a greater understanding of the
monetarist critics. Nobody disputes the form of the equation, but having it as a base the economists
may collide with each other endlessly in the variables behaviour.
The Monetarists critics say that the standard analysis of the quantity theory of money is
completely useless: " Now "on long run" this thing (drawing the quantity theory: a doubling of
money doubles price level) is probably true ... But this term is a cheating guide to current affairs.
In the long run we are all dead. "(Keynes 1923)
Furthermore, Milton Friedman agrees with the assessment made by Keynes. He stated that
one of the main aims is to save Monetarism from being a "rigid and atrophied caricature" of the
economic theory that has become in the period between the two wars (Friedman 1956, 3-21).
Meanwhile, economists such as Robbins (The Great Depression) and Joseph Schumpeter
(Depressions) shared the view that monetary and fiscal policies were ineffective in fighting
recession as they could not create real wealth, but only one false that contains the seeds of a future
longer or deeper depression.
The Old Chicago Monetarism is represented by Viner, Simons and Knight. This school
emphasized the variability of velocity and its potential correlation with inflation. They accused the
monetary forces that have caused deflation as a source of depression. Viner said that due to
monetary and fiscal policies ... banks failed and the amount of deposits dropped "along the Great
Depression. Their solution is a stimulating monetary expansion and large government deficits
(Viner 1933).
Among those who do not recognize this school include Don Patinkin and Harry Johnson. In
their work The Chicago Tradition, The Quantity Theory, and Friedman and The Keynesian
Revolution and the Monetarist Counterrevolution they argue that Old Chicago Monetarism is too
amorphous and vague to be called a theory or a school.
On the other hand, there are supporters as Friedman or Tavlas (Retrospectives: Was the
Monetarist Tradition Invented?) who agree that it is a theory, even if only a default theory, a
theory that was not ever written, an "oral theory ". Friedman in Comments on the Critics (1972)
believes that this oral tradition made possible macroeconomic analysis considered by Viner: a
"subtle and relevant version .... of the quantitative theory .... a flexible and sensitive tool for the
interpretation of aggregate economic activity movements and for the development of relevant
policy recommendations.
Whether it is considered a theory or not, it is important to note that those who belonged to
the Old Chicago Monetarism did not believe that the velocity is stable and the money supply can
be controlled directly and easily. They didnt believe that the velocity is stable as traders act
differently in the period of boom, inflation, recession and deflation. Or just because of such
differences, there are amplified the effects of monetary shocks on nominal total expenditure with
effect on the real economy.
The Classic Monetarism is represented mainly by Milton Friedman with the following
works: Essays in Positive Economics, Studies in the Quantity Theory of Money, A Program for
Monetary Stability and The Role of Monetary Policy. Other representatives are: Karl Brunner with
The Role of Money and Monetary Policy, and Alan Meltzer with Friedman's Monetary Theory.
This school includes empirical demonstrations for several problems, namely:
if money demand functions may be stable under extreme conditions of
hyperinflation;
how close is the natural rate of unemployment the unemployment rate;
what is the potential of monetary policy over time;
demonstrations of short-term effects of monetary policy.
So, the monetarists argue that on short-term, money can influence both prices and economic
activity, but on long run, changing the money supply leads only to price changes.
Keynes advocated state intervention in economy and thought that a government that leads
well and prudently can bring economic growth and stable prices. In contrast, the monetarists
considered the non-influence of government expenditures on prices or production, if money supply
does not change. In other words, money is the only that counts.
We believe that this vision is an extreme approach, because in reality, there is a need of both
a monetary and fiscal policy. For an economy to achieve the optimal level, these policies should be
intertwined, coordinate, in order to achieve a policy mix.
Monetarists argue that velocity is stable because if the Central Bank increases money supply
by buying securities, the producers have more money. People, believes them, have money in
particular for daily transactions. If they have more money, then people will buy more goods and
services, so GDP increases. Otherwise, if people have less money (Central Bank has reduced
money supply), they will spend less, so GDP will decline. Therefore, monetary policy affects the
liquidity of the population.
If velocity is stable, and the central bank can control the money supply, then there is an
effective tool (money supply) which can speed up or slow down economic activity. However,
when the velocity is not stable, and people oscillate between keeping a greater or lesser part of
their current funds and current accounts, controlling money supply is no longer of much use, and
the acceleration stops working well.
Keynes's criticism aimed precisely the following: why the velocity must be stable? Why do
people have to spend all that have more? Why cannot be save that money? Keynes introduced
another reason, the speculative one, in which economic agents can use extra cash to speculate on
market shares and bonds.
The Keynesians appreciated, also, another transmission mechanism of money, the interest
rate. They considered two important steps must be fulfilled. The first phase refers to the fact that if
the Central Bank increases the money supply, people should not collect money. However, if this is
not done, they can buy stocks and bonds, meaning financial assets rather than real assets. This will
result in lower interest rates. The second stage involves credits from banks to households and
firms, but, also, the purchase of goods and services, so as to increase the GDP.
Conversely, if money supply is reduced, people might not care about having less money
saved. Even if they could sell their financial assets, leading to increased interest rates, those who
want loans might not be discouraged by this (if they have to continue some projects necessarily),
so that GDP will fluctuate.
In this criticism, as that money would not count too much, Friedman published a series of
essays by which he improves the quantity theory. He says that demand for money is stable because
it depends on factors with long-term action, such as health, education and income level which one
expects to obtain throughout life. As these factors do not change randomly, the velocity does not
fluctuate (Friedman 1956, 3-21). (Keynes did not take into account long-term factors)
Moreover, Friedman turned his attention to consumption. If Keynes believed that people
change their consumption based on current income changes, Friedman says that people consume
steadily as they have certain expectations in the long term income. Thus, the permanent income
hypothesis is born. Consumers will not allow a low week, month or year to change their lifestyle.
They simply will use the savings. But if they see a major shift, they will change their way of acting.
The conclusion of Friedman's remarks is represented by the stability of consumption.
Friedman believes, also, that the Great Depression is a proof of monetary policy and not of
her inability - as Keynes believed. It argues, moreover, the idea that misuse of monetary policy
accompanies each strong recession and each period with emphasized inflation (Friedman and
Schwatz 1963). The authors have not agreed with the Federal Reserve, which during the crisis did
not give cash to banks in order to give customers money back. They argue that a little help from
the Federal Reserve would have instilled more confidence to the customers.
After the power of money has been proven, Monetarists wanted to contradict Keynesians
statement that government spending would stimulate the economy. They obtained the
demonstration by answering the following question: where comes the money that the government
spends from? If money supply is constant, while the state spends money means that someone
should spend less. If you increase taxes to finance various programs, consumers no longer have as
much cash available for purchases. If the State borrows by selling bonds, companies can not
borrow as much to invest. Interest rates increase and decrease investments. It is clear that
increasing government spending lower the private sector spending.
Keynesians can not deny this, but they claim that the reduction in private spending is not
perfectly equal to the growth of government, especially during recessions. So what is important is
the extent of reduction.
Even if Monetarists are right and the velocity is stable on long run, it certainly varies in the
short term. If the velocity drops for a few months, while the money supply continues to grow at a
steady pace, the economy will collapse. Maybe not for long, but in such circumstances the number
of jobs depend on what the Central Bank does. Some hard questions about the central bank remain
unanswered: How long it needs to detect a change in velocity? How much time must pass so that
the measures taken by it to influence the economy?
Moreover, the behaviour of a central bank depends heavily on the information available.
The dynamic behaviour of the monetary policymaker varies because it reacts differently when
there is complete or incomplete information. (Dotsey and Hornstein 2002)
It is said that "early Keynesianism received a rediscovery of money . Money matters
without and can only. In their enthusiasm about the role of fiscal policy many Keynesians unduly
underestimated the role of money. "(Samuelson and Nordhaus 1985, 331)
Currently, it takes a mix of policies, both monetary and the fiscal one.
Political Monetarism was something different from the Classic Monetarism. The idea of
this theory is that the velocity can be made stable if monetary shocks are avoided, but that the
velocity is stable. It supports the idea that there is no need for institutional reforms as the central
bank to have easy control over money supply because central bank already controls the money
supply changes. The Central Bank is the source of all monetary forces. Everything goes wrong in
the economy has a single, simple cause: central bank failed to increase the money supply with an
adequate rate.
Those who belong to this school claim that the major effect of fiscal stimulus is to increase
interest rates more than you should and not to increase the nominal demand. Only if the fiscal
stimulus is financed by issuing money has a positive effect. They also are sceptical regarding
velocitys dependence of interest rates. Their conclusion is that any policy that does not affect the
amount of money and its growth rate simply can not have a major impact on the economy.
The Political Monetarists have not enjoyed the same success as the Classics.
The research that we undertook in this area show that, currently, there are ideas kept from both
Monetarists and Keynesians. From Monetarists the ideas preserved are in particular those relating
to the fact that for realizing a macroeconomic policy analyse should be considered long-run
implications, that monetary policy is a powerful tool for achieving macroeconomic stability and
from Keynesians the one relating to the fact that for an economy to function optimally the state
intervention is, also, necessary.
But, the assumption that it is easy for a central bank to find and control the relevance of
money supply has proved to be false. (Goodhart 1970)
It is therefore necessary to observe short term and long run implications of monetary
changes needed to study monetary neutrality, meaning how these changes affect real
macroeconomic variables.

Monetary neutrality and its implications
How monetary changes affect important macroeconomic variables, such as production, real
wages and real interest rates?
This question has intrigued many economists. David Hume, the great philosopher, suggests
that all economic variables should be divided into two groups: nominal variables - measured in
monetary units and real variables - measured in physical units (Hume 1970). Currently, this
separation of economic variables is called the classical dichotomy.
Applying classical dichotomy on price is a little more complicated. Prices from an economy
are usually noted in terms of money and therefore are nominal variables. Regarding the relative
price - the price of an object compared with one another - it is a real variable because the measure
in monetary units disappeared and appears the one in physical units.
Separation of variables is necessary. According to Hume, certain factors affect nominal
variables and other real variables. He supports the idea that nominal variables are affected by
developments in monetary economic system, while this monetary system is irrelevant in terms of
understanding the determinants of real variables.
Changes in money supply affect nominal variables but not real ones. When the central bank
doubles the money supply, the price is doubled, the salary is doubled. Real variables such as
production, real wages and real interest rates do not change. The irrelevance of monetary changes
for real variables is called monetary neutrality.
Hume highlights the neutrality of money: "It is indeed obvious that money is not anything
but a representation of labour and goods and serves only as a method of rating or estimation. When
the currency is in full so that a larger amount is necessary to represent the same quantity of goods,
it cant have any effect, either good or bad."
Also, Hume writes: "When a quantity of money is imported into a country, it is not initially
dispersed in many hands, but it is kept in the locker of a few people that will use it in order to
obtain an advantage. Here we may found a set of producers and traders who have received, for
example, gold or silver for some goods sent to Cadiz. Thus, they can hire more workers than
before, who do not dream to ask for higher wages, but they are happy for the job obtained from
these good employers. [Crafts] ... carries his money to the market, where he finds all at the same
price as formerly, but returns with a larger quantity of goods and of better quality for the benefit of
the family. Farmer and gardener, finding that all their assets were sold promptly increase
production ... It is easy to find money through the entire state, where we first find that each
individuals diligence should be accelerated before increasing the work price." (Hume 1970)
Is this monetary neutrality conclusion a real description of our world? The answer is: not
really. A change in monetary decisions has short-term effect on real variables. Hume himself was
not sure whether monetary neutrality applies to short-term. Most economists accept Hume's long-
term conclusions.
Robert E. Lucas, Nobel Prize in 1995 for monetary neutrality, demonstrates in one of his
works of 1972 Expectations and the Neutrality of Money that money is not neutral in the short
term.
To do this, he uses a model taken from Samuelsons working paper An Exact Consumption-
Loan Model of Interest with or without the Contrivance of Money.
Samuelson introduced a simple example of an economy in which cash does not have a direct
use in consumption or production, but plays an essential role in economic life.
In Samuelson's model, each individual lives two periods: one of activity and another one of
retirement; so, two generations coexist in each period, one of active youth and the other one of old
pensioners. There is no family structure in this economy: no inheritance or financial support made
by one individual to another. The youth work and produce goods, while the elderly consume
goods, but they are not able to produce.
One of the problems is providing sufficient resources to the second generation. Those who
wish to consume, the elderly, have nothing to offer in exchange for goods produced by the young.
If it is assumed that there is some money in circulation, initially in the hands of the elderly, then
they will give young people in exchange for goods, establishing a market price.
The cash introduction remedies this deficiency. The presence of currency enables young
people to sell their production against the money, currency that they will use in old age to purchase
goods. Will accept young people these symbols- with no intrinsic value (Wallace 1980) - and to
retain symbols value as goods at any level greater than zero? Perhaps not: this possibility can not
be stated definitely. Young people can accept to produce in exchange for fiduciary currency
because they hope that in the future when they become older to be able to pay for goods produced
in that period.
The difficulty arises from non-contractual nature of money: nothing can guarantee to the
current youth that, when they are old, the future young people will accept as payment the money.
It is possible that money runs endlessly, being continually changed on goods. If the
exchange takes place in a single competitive spot market and the price p is established, then a
young person who starts without money and produces n pieces will receive pn cash units. If that
person spends all the goods in the next period, it will be achieved (pn) / p = n units of
consumption. If money supply is constant and distributed to each elderly person in the value of m,
then the equilibrium price will also be constant: p = m / n *, where n * is the units consumed in
equilibrium conditions, meaning when the consumer utility is maximized.
Obviously, in this case, Hume's theory is true: if m increases, the equilibrium price level
increases in the same proportion and the amount of work and production will not be affected at all.
If the stock of money is changed, the issue of neutrality is complicated. The hypothesis of a
constant money supply is replaced with the one in which the amount of money increases at a
constant percentage rate. It is assumed that each young receives an equal share of the money newly
created, when the transition is made from active to the retirement period. This amount is
independent of the money he earns by working.
It is considered that the supply of money increases by x times in each period. Price level will
rise between periods with exactly the same rate of growth of money supply, but according to the
model, the balance of work is affected.
As the currency increases further, the more important is the overnight transfer, relative to
the cash accumulated through work. Money transfer diminishing income from employment.
Production of goods decreases as inflation rate increases, so things get worse.
This is, in fact, money non-neutrality, a real effect of currency changes; this effect is not the
incentive of a monetary expansion, but rather reduces the real value of income derived from
employment.
Regarding long term neutrality, it is said that this is considered as given almost an axiom
(Bullard 1999, 57-77). When referring to long-term monetary neutrality, economists refer to a
hypothetical experiment which normally is not directly observed in actual economies. The
experiment involves a sudden and permanent change of the stock of money. If, for example, the
stock of money is 5 billion dollars a day and this value is kept for a long time, which would be the
effect of unexpected changes in the 6 billion money stock and of keeping it for a long time?
Pursuant to the quantity theory of money, prices will probably increase in the same proportion to
the money stock and the real variables after a certain period of time, will probably return to
baseline until another disturbing factor intervenes. This is neutrality in the long run.
Lucas on Nobel Prize lecture sustained (Monetary Neutrality) mentions some evidence of
long-term monetary neutrality. Between them, Friedman and Schwartz are quoted with A
Monetary History of the United States, 1867-1960 in which the authors have argued that the major
recessions in the United States between 1867 and 1960 were preceded by substantial contraction of
money supply, suggesting that monetary policy errors were the main cause. Lucas, also, supports
the idea that severe monetary contraction has played an important role along the Great Depression
of the 1929-1933 periods.
It also cites the work of Thomas J. Sargent The End of Four Big Inflations making the idea
that large reductions in the rate of monetary expansion - sales more than what was experienced
during the post Civil War period from USA did not lead to an unusual massive reduction in real
GDP in the hyperinflationary period after First World War in the European economies. These
reductions were achieved with a monetary reform. Hyperinflation has been ended abruptly when it
was announced a credible reform.
Citations made by Lucas are additional to its view for which the long term monetary
neutrality is preserved.
As is shown in the rows above, long-term monetary neutrality implies a permanent and
unexpected change in the stock of money from a country and the impact of this change. To study
this directly, we need time series on inflation and monetary growth for individual countries. The
difficulty that arises is: can be isolated the permanent changes of the money stock, which are
correlated with persistent changes in price level while they are not related to permanent change of
real variables?
The idea of a permanent change of economic variables is modelled from econometric point
of view with a unit root in a time series autoregressive representation, a time series with unit root
has several different properties different from a stationary series. An autoregressive process is a
model where the current value of the dependent variable y depends only on its values from
previous periods plus an error term. It considers the simple case of an autoregressive process: y
t
=
a y
t-1
+ u
t .
(1)
Coefficient a takes any value. The process is rewritten using firstly a lag time between
periods and then two lags between periods:
y
t-1
= a y
t-2
+ u
t-1
(2)
y
t-2
= a y
t-3
+ u
t 2
(3)
Substituting equation (2) in (1) is obtained:
y
t
= a (a y
t-2
+ u
t-1
)

+ u
t
(4)
y
t
= a
2
y
t-2
+ au
t-1
+ u
t
(5)
Replacing equation (3) to (5) is obtained:
y
t
= a
2
(a y
t-3
+ u
t 2
) + au
t-1
+ u
t

y
t
= a
3
y
t-3
+ a
2
u
t 2
+ au
t-1
+ u
t
If are made T successive replacements it comes to the following equation:
y
t
= a
T
y
t-T
+ au
t-1
+

a
2
u
t 2
+ a
3
u
t-3
+...+ a
T
u
t-T
+ u
t
Three possible cases arise:
1. a <1 => a
T
0 on the measure T
In this case, systems shocks will gradually disappear, so the series is stationary. A
stationary series can strongly influence its behaviour and properties. Also, this type of series is
characterized by constant mean, constant variance and constant autocovariance for each lag.
"Shock" is a term used to indicate a change or an unexpected change of a variable or even simple,
the errors value over a particular period of time. In a stationary series, shocks gradually disappear,
meaning that the effect of a shock in period t will have a smaller effect during t+1 and smaller in
t+2 and so on.

2. a = 1 => a
T
= 1, whatever T
Shocks persist in the system and do not disappear ever. Thus, you get:
y
t
= y
0
+ u
t,
as T , t evolves from 0 to
Thus, the current value of y is an infinite sum of past shocks plus baseline y
0
. This case is
known as unit root because the root of the characteristic equation is 1.

3. a> 1
Here, shocks become more influential as time passes, since if a> 1, a
3
>a
2
>a. It is an
explosive event and therefore it is not considered a plausible description of the data.
In the early '70s, Lucas in Econometric Testing of the Natural Rate Hypothesis writes for
the first time about permanent changes modelled as unit root in an autoregressive time series. Only
then, the implications of unit root in an economic time series began to be recognized. Charles
Nelson and Charles Plosser argued in their Trends and Random Walks in Macroeconomic Time
Series: Some Evidence and Implications that many macroeconomic time series of the United States
were best characterized by unit root in univariate autoregressive representations.
The nonstationary of economic variables has been a headache for most macroeconometricians.
But as a happy change of events, it is an advantage in terms of neutrality test. As noted Lucas, to test
long-term neutrality requires permanent changes in the stock of money as part of a historical record.
But macroeconomic time series dispose of permanent shocks.
Lucas's ideas are used by other authors to improve long-term test of neutrality. Thus, Mark
E. Fisher and John J. Seater in Long-Run Neutrality and Superneutrality in an ARIMA Framework
used a bivariate model in which a dependent variable is the nominal money supply M (the model
used the natural logarithm of money supply) and the second dependent variable is real GDP Y (the
model used the natural logarithm of Y). They use all unit root process.
In the hypothetical experiments, it is very important for the change to be unexpected
because if traders know that money supply will increase and thus the price level, they could begin
to change their present behaviour. For example, they can now buy goods before the price rises.
Thus, prices should begin to increase before the money supply to grow and things get more
complicated.

Conclusions
In this paper, we analyzed the following key issues regarding money. Firstly, we focused on the
difference between money and currency. These terms are similar from one point of view: when the term
of currency means consideration of coins, banknotes and scriptural money as it is broadly used.
Secondly, as currency plays a vital role by creating a link between present and future, we
emphasized it through Keynesism and Monetarism. Thus, we revealed the confrontation of ideas
between these two trends making a review of the four parts of Monetarism: First Monetarism, Old
Chicago Monetarism, Classic Monetarism and Political Monetarism. The research that we
undertook in this area show that, currently, there are ideas kept from both Monetarists and
Keynesians. From Monetarists the ideas preserved are in particular those relating to the fact that
for realizing a macroeconomic policy analyse should be considered long-run implications, that
monetary policy is a powerful tool for achieving macroeconomic stability and from Keynesians the
one relating to the fact that for an economy to function optimally the state intervention is, also,
necessary.
Thirdly, we highlighted the implications of monetary neutrality on short term and long run
upon real variables. Even if it is known that money is neutral on long run, there are still
researchers who try to improve this idea using different models. As a future research, we
recommend to deepen the implications of monetary neutrality in the conduct of monetary policy.

References

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ENTREPRENEURIAL CONSULTING AND DEVELOPMENT
FOR YOUTH WITHIN RURAL
AREAS - A CASE STUDY FOR DEVELOPING NORTH EAST,
CENTRAL AND SOUTH EAST REGIONS
Marin BURCEA*,
Doru CURTEANU**
Razvan Mihail PAPUC***
Abstract
We propose to show the connection between consulting and entrepreneurial approach,
emphasizing the normality of including assistance within the entrepreneurs activity. The
theoretical component deals with the elements that define the consulting activity in business and
the specific approach to initiate and develop business by young rural entrepreneurs. The
applicative component is represented by the presentation of the specific consulting needs for
business initiating and development in the rural areas within developing regions of North East,
Central and South East. The undertaken sociological research is representative for the study
group and was held within the SOP HRD strategic project Rural Manager.

Keywords: entrepreneurship, entrepreneur, consulting

Introduction
Entrepreneurial consulting and development represents an important resource for business
success, especially for youth from rural areas. From the study made within the strategic project Rural-
manager on a target group of 942 people composed of entrepreneurs and future entrepreneurs from
rural areas, especially young people, in developing regions of North East, Central and South East and
we shall respond to a series of questions that can guide future efforts to better calibrate the offer of
consulting services and entrepreneurial development. The study used a mix of methods (surveys, focus
groups, brainstorming and depth interviews) to answer the following key questions:
(1) Who needs consulting and in which areas?
(2) What was the degree of satisfaction with these services?
(3) Has the quality of consulting evolved in the last couple of years?
(4) What are the needs of entrepreneurial training and consulting for the future?

1. Business consulting and entrepreneurial development
Business consulting consists of assisting organizations in improving performance by
analyzing the existing problems, developing improvement plans and, in some cases, providing
assistance in implementing those plans. Organizations turn to consultants to obtain more objective
analysis and advice from outside, to have access to the specific expertise of a particular consultant,
*
Lecturer Ph.D. Bucharest University
**
Ph.D., Gemba Consult
***
Professor Ph.D.
to obtain information on best field practices or to obtain a temporary support in situations when
permanent employment of a person is not justified. Consultants may also provide assistance in
leading and implementing organizational change, development of coaching skills, implementing
new technologies, designing and implementing strategies or improving services or production
operations. Consultants generally bring their own methods or thought frameworks that guide
efforts to identify problems and provide a basis for formulating recommendations for achieving
more effective and efficient the business processes.
Areas in which is given advice on business are: starting the business, finance and business
financial management, business structuring and management, strategy, human resources,
marketing, sales, information technology, law, accounting, export, quality, health and labour
safety, technical and technological issues, personal development of entrepreneurs and managers,
choices for sources of outsourcing or insourcing for various business activities.
Entrepreneurial development includes topics such as: drafting the business plan, forecast
cash flow, marketing plan, business organization, human resources employment, internal financial
administration, legal aspects.
Usually, entrepreneurs and managers turn to consultancy when they feel overcome by the
complexity of the situations they are faced, or at best, when they consider they can save time and
effort in the process of achieving the results they want.
1

Business consulting for small and medium enterprises is an area that has developed in
Romania since 1990 both with the help of some foreign assistance programs (such as Professional
Business Counsellor Program funded by USAID - United States Agency for International
Development and Washington State University), through local efforts to professionalize the job of
counselling (for example, the foundation of AMCOR - Management Consultants Association in
Romania) and the involvement of specialists from academic field to practice this profession.
Independent consultants, consulting centres affiliated with universities, consultants affiliated to
The Chambers of Commerce and Industry, business consulting companies gradually emerged.
However, most of the business consulting turned to providing services to midsize and large
companies that could bear the costs of consulting programs. Consultancy market (supply and
demand) has grown especially in urban areas and mainly in Bucharest, Cluj and Timisoara. The
consultancy offer on the Romanian market is currently relatively small (there is only one
consulting company with turnover exceeding 3 million Euros, the remaining companies within this
field achieving extremely modest turnovers - between 20,000 and 200,000 Euros).
During 2009-2013 for the entrepreneurial development in rural areas (especially supporting
the initiatives promoted by young people and women, supporting the traditional crafts and other
activities) it is possible to access funds worth 3.83 million Euros provided by the European Union
and the Romanian Government. This support is available as grants, loans, guarantees, non-
financial assistance in the form of programs and support services for enterprises (including
business consulting and training programs). As a result, naturally, much of the consultancy supply
and demand is concentrated within the area of assistance for accessing such funds. Consulting
companies specialized on such services (assistance to access EU funds) that are successful actually
offer a broader package of services that participate in the success of the projects (project
management, financial management, business management, human resources management,
marketing, training producer groups to access funds etc.).
There are many theoretical approaches that business consultancy is based on: scientific management
theory
2
, game theory, theory of constraints
3
, lean production
4
, 6 sigma, complexity theory
5
etc.
1
David Philip, Getting Started, Kogan Page, London, 1998
2
Viorel Cornescu, Paul Marinescu, Doru Curteanu, Sorin Toma, Management from theory to practice,
University of Bucharest Publishing House, 2003
3
Mabin, Victoria J., Balderstone, Steven J., The World of the Theory of Constraints: A Review of the
International Literature, St. Lucie Press, 1999
Marian Burcea Doru Curteanu Razvan Mihail Papuc 151
For our study conducted within the project Rural Manager we chose to focus not so much
on identifying theoretical approaches that were used, but on identifying areas of intervention, but
both in terms of their history (to which type of consulting services the participants in this research
have turned to in the past) and future (which are the priority areas where there is a need for
consulting). For the first part we chose to formulate open questions so that not to affect
participants' responses and for the second aspect we made a list of areas in accordance to the
priorities of the current period generated on one hand by the constraints of the economic crisis, and
on the other hand by the opportunities given by the European financial consulting programs. This
way, along with classical areas of business consulting such as strategic management, elaboration
of business plans, general management, production management, human resources, accounting,
legal, IT, communication, the following have emerged as distinct areas: certifications (required
for participating in auctions), auctions, access to European funds, managing projects.

2. The methodology used within research
2.1. Background and research methods
The study was conducted within the strategic project Rural-manager. The project Rural-
Manager has the financing contract SOPHRD/13/5.2/S/8 being selected within the Sectoral
Operational Programme Human Resources Development - SOPHRD, axis 5, DMI 5.2., which is
co-financed by the European Social Fund. Rural-manager is implemented by the National
Foundation of Young Managers FNTM (www.fntm.ro), as leader of the consortium, in partnership
with organizations Training and Development Center of Employers Associations of Bavaria - bfz
GmbH (www.bfz.de), SC Siveco Romania SA (www.siveco.ro) and the Euro <26 Association
(www.euro26.ro).
The target group of the project consists of entrepreneurs or prospective rural entrepreneurs,
especially young people, who can generate local development and employment opportunities by
expanding their business in developing regions of North East, Central and South East.
For the scientific measurement of the training and management consulting needs of the
entrepreneurs and those wishing to start a business in rural areas a complex research has been
made that is covering several aspects:
Creating a representative poll for the target group and a comparative survey conducted
among civil servants
Conducting three focus groups (one for each region) about the motivations, expectations
and entrepreneurial behaviour
Making 3 brainstorming (one for each region) about the significance and daily meanings
associated with concepts of management science
Conducting 30 in-depth interviews (10 in each region) about entrepreneurial experiences.
The quantitative researches were combined with the qualitative researches in order to study
the training needs. A questionnaire was built on entrepreneurial values, behaviour and motivations,
on management knowledge and experience in consulting and the mutual perceptions of
businessmen and people in government.
To elaborate the sample it was taken into account the share of the rural population of each
county in all the three regions and it was agreed to ensure the greatest possible territorial
4
Earl M. Murman, Transitioning to a Lean Enterprise: A Guide for Leaders, Volume I, ,Massachusetts
Institute of Technology, 2000
5
Jonathan Rosenhead, John Mingers, Rational Analysis for a Problematic World: Problem Structuring
Methods for Complexity, Uncertainty and Conflict, 2nd Edition, John Wiley and Sons, 2001
dispersion. For every rural village it was put together a list of entrepreneurs and potential
entrepreneurs, based on information collected from the FNTM county coordinators. From that list
almost 1100 individuals were selected by statistical step and they were invited to attend regional
conferences of the strategic project Rural-Manager. Among the conference participants, 942
individuals agreed to participate in sociological research. Those 942 individuals live in 493 cities -
on average every two persons from a village. The sample is representative for the target group
(entrepreneurs and potential entrepreneurs in rural areas in 18 counties in North East, Centre and
South-East) with an error of + / -3.2%.
Of the 942 individuals, 23 participated in focus groups, 22 in brainstorming and 30 in-depth
interviews. At the regional conferences in Alba Iulia, Iasi and Focsani one focus group,
brainstorming and 10 in-depth interviews were conducted to accurately identify peoples
motivations, expectations and ideas about various managerial aspects. Qualitative researches were
conducted in rooms specially equipped for this purpose and were moderated by experts in the
field. The selection criteria for participants in focus groups and brainstorming were full -
probability, random, with statistic step from the lists of participants to the meeting. Participation
was voluntary. Participants were told that refusal to participate will not influence the chances of
participation in the Project. Focus groups and brainstorming were held prior to the Conferences in
order not alter the collected qualitative data by information provided in the Event.
In the search for similarities in a group as heterogeneous as the one that is studied, we
grouped participants into three categories. In each category we specified the share of the total
sample. Then we divided a category into several subcategories:
1. Non shareholder managers 3%
2. Employers and self employed persons 29,3%
3. Potential entrepreneurs (willing to start a business) - 67.7%, of which:
a. Employees in the public sector 13,6%
b. Employees in the private sector 17,8%
c. Self employed 8,2%
d. Farmers with own farm 10,4%
e. Other statute (students, unemployed) 17,7%

2.2. Characteristics of the analyzed sample
Although few, we have analyzed separately the non shareholder managers because we noted
that they had the highest level of economic training. They are executives at companies with large
numbers of employees; they are averagely 38 years old, know foreign languages, frequently use
the computer and Internet and have bank loans.
From employers, nearly half of them own production businesses (agricultural, livestock,
woodworking, baking, construction, clothing), a quarter deals with services (agro-tourism,
transport, notary, consulting), and the other quarter deals with trade. Most of the companies within
the rural areas are micro-sized - 90% have fewer than 10 employees. They function but at a
satisfactory level for three quarters of employers, which means that their satisfaction does not
depends on the extent of conducted business.
Statistically 98-99% of the businesses taking place in the world, regardless of continent or
country, are small-sized, having up to 10 employees. The average number of employees per
enterprise is 2 for micro-enterprises, 20 for small enterprises and 103 for medium enterprises,
while the average number of employees per total of SMEs is 6.2, according to the National
Agency for Small and Medium Enterprises and Cooperatives - NASMEC (Catalin Alexe -
Business Plan Professor / Department of Management, UPB).
If employers and managers world is dominated by men, the civil servants world is more
well-balanced divided on gender and we noticed more women from public administration willing
to enter the business world. Like managers, the employees from the public sector have a higher
education level (60% have graduated college), they are frequently using the computer and have a
relatively good command of foreign languages. Three quarters of them are married and most of
them have children.
Unlike civil servants, employees from the private sector are mostly unmarried, have an
average level of education, and have lower incomes than their peers from the public sector. This
should be correlated with their average age (25 years old) - less than the occupational categories
listed above. Therefore, seeing businesses run by their employers, employees in the private sector
immediately wish to follow their footsteps, opening their own business. They havent begun a
business from the same reasons as all the potential entrepreneurs: they did not have the capital and
the equipment to start off (41%), they did not have a good idea for business (17%), they did not
have the necessary connections (11%), they did not feel ready for something like this (10%).
Self employed individuals (traders, unregistered tax craftsmen) together with farmers have a
slightly different social profile: they use the computer and Internet the least, they master foreign
languages the least, they do not take many loans from the banks and they have a low international
professional experience (only 15% of farmers say they have learned or worked abroad). Instead
they have an important marketing activity: nearly half of the interviewed farmers have personally
sold agricultural products or livestock at the market last year (men have sold two times more than
women). In Transylvania counties selling your own products at the market is more intense than in
the north-east of the country.
Almost all students and unemployed individuals that were interviewed are unmarried; they
speak foreign languages and spend lot of time on the Internet. There have no loans from banks and
they have the lowest income of all survey participants (about 200 Euros a month). In the potential
entrepreneurs group, they have the lowest average age: 23 years.
Beyond these categories (employment, gender, age, education level, experience working
with computers, working abroad, working with banks), we did not noticed other socio-
demographic patterns responsible for people's desire to start a business in rural area. They were fat
and thin, tall and short, silent and talkative; some of them were disabled, while others had obvious
problems that required medical treatment, even during interviews. They fancied various parties
from the political scene or despise them all equally. Fond of dainties or reluctant about cuisine,
authoritarian or not, they all had the desire to succeed in the world of rural management. Trying to
find out what urged them towards business, we asked them more questions about values and their
way of thinking

3. Getting consultancy services when practicing an entrepreneurial and
managerial activity
Business consulting is a rare experience: only 12.4% of survey participants used consultancy
services so far.
Looking at a detailed description on the target groups of the project we find significant
differences between the three groups. Thus, entrepreneurs have consulting experience in a
significant percentage of 28%, unlike the non shareholder managers - 18% and potential
entrepreneurs with 5.5%. Although potential entrepreneurs is a heterogeneous group (includes
employees from the public and private sector, farmers, and self-employed individuals) there are no
statistically significant differences within the group. This strengthens the hypothesis of the reduced
level of entrepreneurial culture that people from this important segment have for the revitalizing of
the rural: potential entrepreneurs.

Table no. 1. Getting consulting services depending on the target groups of the project

Non
shareholder
managers
Entrepreneurs Potential
entrepreneurs
Total
sample
Have turned to consulting 17.9 27.9 5.5 12.4
Have not turned to consulting 82.1 72.1 94.5 87.6
Total 100 100 100 100

A very important aspect of the problem of consultancy for rural areas is represented by the
subject of the required assistance until the questionnaire-based sociological inquiry. The free
responses without pre variants look like this:

Access to funds
Grouping these answers on topics show the following hierarchy:
2.8
1.2
0.8
0.4
0.4
0.4
0.4
0.3
0.3
0.3
0.3
0.3
0.2
0.2
0.2
0.2
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0.1
0 0.5 1 1.5 2 2.5 3
Accesing funds
SAPARD Programme
Agricultural company
Agro-tourism
Financial Accounting
EAFRD 112
Measure 121
Building a greenhouse
Access and project implementation
Mushroom
Project management
Measure 141
ISO Certificate
Integrated project development
Creating a firm
Measure 112
Public acquisitions
Hiring staff
Building a milk factory
Snail farming
Opening a clothing factory
Media development in rural areas
Retail market development
Heritage assessment
HACCP Implementation
Agriculture
Orchard
Creating self-employed contract
Investments
Judicial
Marketing
ISPA Programme
Feasibility studies
Reason/theme you turned to consultancy
87,6% did not turn to consultancy
1. access to European funds: 44.4%
2. Business Development: 24.8%
3. Other: 30,8%
So we observe that for almost half of consultancy beneficiaries the main objective was
access to grants, pre-adhesion funds and other European funds. The reason why a quarter of those
who requested consulting services was the business development through technical advices. 30%
of them requested consulting for certification, insurance, legal, financial, accounting aspects. The
significance test shows that we have no statistically significant associations between the subject of
consulting and the field in which it operates. The question regarding the years they have turned to
consulting provides us with surprising answers:
Table no. 2. Year distribution of those who turned to consulting

Years %
until 2004 19.7
2005 7.7
2006 11.9
2007 11.9
2008 23.9
2009 24.8
100

One may notice that a fifth of those who went to counseling did this until 2004. In the first four
months of this year they have requested consulting as throughout the whole year 2008 or 2006 and 2007
combined. Hence the boom in demand for consulting and the need for help to access EU funds.
Were they satisfied by the consulting services? It is a natural question for any evaluation
approach. Most people who have turned to consulting: 51% were satisfied and very satisfied with
advice received as opposed to 37% of them who were dissatisfied and very dissatisfied.

Regarding consulting topics, the highest percentage of those satisfied with the advice is
recorded in the case of those who resorted to various practical problems of a companys activity:
accounting, marketing, law and other. 15% of those who expected a practical advice were
dissatisfied. Second place among satisfaction from consulting services are those that have asked
19.7
31.6
25.6
11.1
12
0 5 10 15 20 25 30 35
Very satisfied
Satisfied
Not too satisfied
Very dissatisfied
No answer
How satisfied were you with the consulting services you
received?
for help in accessing funds: 62% versus 31% that declared themselves as dissatisfied. Most
dissatisfied were those who sought advice on business development: 69%, versus 31% that
declared themselves as satisfied.
Has the quality of consulting evolved in any way in the recent years?
The only easy statistically significant association is negative and refers to those who sought
advice in 2007. In the last two years an increase in satisfaction with consulting services has been
observed. We believe that in the first quarter of 2009 we can speak rather of a high level of expectations
from the consultancy work than actual achievements; most requested consulting is on structural funds.
The individuals that participated in the research were asked about needs for consulting from
their county. The question was open, each respondent expressing his opinion in his own words.
The response rate to the questions was 48.6% of total participants, similar to the current shares
from polls. Respondents indicated an average of 2.2 answers of three possible answers. Analyzed
in terms of target groups of the project, 61% of managers, 58% of entrepreneurs and 44% of the
potential entrepreneurs have expressed their opinion about the need for counselling. Significance
tests show that entrepreneurs are more likely to express a need for advice.
From the perspective of participants residency, those who have expressed a real need for
consulting were those of the Central region: 54% of participants, then those from the North-West
region: 50% and those from the South East region: 42%. Those with higher education particularly
expressed their opinion to the question, followed by those who graduated high school; in another
way put, the training level influences and makes aware of the support that consulting services can
bring to business.
Those who have asked for consulting services have formulated with a ratio of over 68% a
specific requirement to this activity. It is a significantly higher percentage than the percentage of
those who have never used consulting services, but have made a requirement for consulting: 46%.
Thus, we have an example of the importance of rising awareness on the importance of consulting
and the possibilities offered in solving business problems.
It is interesting to emphasize the fact that the dissatisfaction with the advice received did not
deter the influence on formulation of a support requirement for the business activities; those who
have been dissatisfied have formulated precise needs for consultancy in an even higher percentage
than those satisfied with the consulting services.

19.1
14.2
12.6
9.2
7.9
7.5
4.7
4.7
4.6
3.8
2.7
2.5
2.2
1.6
1.4
0.7
0.6
0 5 10 15 20 25
Access to European funds
Information, opportunities, business ideas
Consultancy for developing your own
Project management
Marketing
General management concepts
Developing a business plan
Communication
Human resources
Financial management
Financial accounting
Strategic Management
Legal
Using computers and programs
Production organizing management
About auctions
Insurance and Certifications
What do you think are the main consulting needs on the level of the business
environment in your county?
It is noticed that obtaining reimbursable or not European funds is in the top of consulting
needs, almost a fifth of all the requirements.
It is not by chance that the second requirement is related to providing information about
business opportunities and ideas in the area. It is rather the fear that their business ideas cannot be
supported by European funds and they prefer to fold business on areas supported by European
money.
The analysis of target groups of the Rural Manager project shows significant differences
when talking about the need for consulting. If the first two positions are common to all target
groups, the other themes have different priority ranks. For managers to strengthen knowledge
management, project management and getting business development advice represent a third
priority, followed by consultancy on human resources issues and financial and accounting
management.
For entrepreneurs the top of the need for consulting is made complete by business development,
then the need for marketing knowledge, the way they can better fructify their products and services, the
way they can better manage accounting, the financial management in general.
For the potential entrepreneurs, the support when starting and developing a business is
almost as important as the information on business opportunities in the area. Thus the correlation
between orientating towards a business supported by European funds and starting off the business
becomes clear.
The need to learn to manage their projects, to seek retail market for the products or services
of their business is organically correlating with the need to assimilate notions of management and
notions of developing a business plan.
Has the type of experience regarding consulting influenced the demand/need in the future of
this kind of support? Those who have experience of consultancy for obtaining financing or
European funds have in a proportion of 1/3 a growing interest for this type of consulting, on the
second place being business development consultancy and project management.
Those who are experienced in business development consulting are moving in the second
plan, after the need for funds, towards the need for knowing how to manage projects and then to a
lesser extent to the need for information / business development opportunities. Those that tried to
resolve their specific problems within their business by turning to consulting also seek advice on
accessing European funds and business opportunities. Thus they are those who developed their
company on classic format and they are looking for ideas and funds for expansion.
Also analyzing the need for consulting from the perspective of subjective assessment of business
operation it appears that managers and entrepreneurs, who state that their business is very profitable,
rather need information and business ideas and subsequently consultancy for European funds. Those
who say that their business is going well rather need advice for funds and then advice for information
and ultimately advice to strengthen the business. Those who appreciate their business is going quite
well would especially like consultancy to obtain funds, then information and finally advice for business
development. For the entrepreneurs who believe that their business goes wrong, access to business
information and European funds are equally important. Somehow the needs of this group of
entrepreneurs are closer to the potential entrepreneurs needs. On the line it can be said the majority
group of potential entrepreneurs is created around the subsistence entrepreneurship.
From the perspective of the field the business is carried on, there are no statistically
significant associations found between the type of business and a specific consulting need, which
reinforces the idea of homogeneity of the rural business environment. Those from services have
more information about business opportunities than those in trade or production.
Asking people where they are usually seeking advice and assistance, we observed that most
of them mentioned the Internet.
Google has become our brother for advice. It provides an answer to everything you search
for (male, 35 years old, employer, graduate, AB)

The distribution of consulting sources within the main target groups of the project shows
significant differences. Managers are among those seeking professionalized advice; 71% of the
assistance they need is obtained from the Internet, publications and banks. Entrepreneurs and
potential entrepreneurs are turning in almost 60% of the cases to professional sources. The
informal environment is more important in terms of assistance, advice for potential entrepreneurs:
20%, compared to 16% for entrepreneurs or 9% for managers.
It is noted that together with the professionalization of business, the transition to entrepreneurship
or management, the transition to other formal sources of advice or assistance also occurs.
Does the source of assistance influence the business success? The data show a slight
association between the source of assistance and the progress of the business, meaning that turning
to professional sources of information and consulting increases the likelihood that business is more
prosperous.

Table no. 3 Correlation between source of information and progress of the business

Category good so and so bad
Internet 31.8 30.9 33
In magazines, books, specialty publications 24.6 20.6 24
Public institutions and agencies 14.9 16.5 10
Friends 10.7 13.6 17
Bank 8.0 7.0 4
Specialised private companies 6.9 6.6 5
Family 2.1 3.3 5
Elsewhere 1.0 0.0 1
Does not seek advice 0.0 1.5 1
N=330 responses
59.8
36.5
25.3
24.1
11.6
9.7
9.2
1.2
1
40.4
0 10 20 30 40 50 60 70
The Internet
Magazines, books, specialty
Public insitiutions and agencies
Friends
Bank
Specialized private companies
Family
Elsewhere
Do not seek assistance / advice
Do not know/Do not answer
Where do you usually look for advice, assistance?
Multiple answers were
allowed, so the sum of
percentages exceeds
4. The need for entrepreneurial training
Apart from the positive perceptions about themselves, employers and prospective employers
from the rural areas felt the need for management improvements, a specialization in business
management science. Asked about their training needs, their responses were:

Observing the order of priorities, on the first place are seen knowledge related to financial
management, followed by accessing European funds, project management and business plan
development. It is interesting that the second option focuses on accessing European funding and
developing business plans. For the third, production management appears in addition to accessing
funds.
If we would cumulate the responses, ignoring the order of precedence, the hierarchy would
be as follows: accessing European funds (63.3%), developing a business plan (52.9%), project
management (44.3%), financial management (41, 7%). Thus, we have an obvious clustering
around the moment: access to finance and everything that would implement a structural design. In
the second place are production management (29.4%), strategic management (24%) and using the
computer (20.7%).
Significance tests show that managers tend to be more concerned with training for
developing business plans, while potential entrepreneurs are concerned with training on project
management. From the gender perspective, women tend to be rather preoccupied with business
plan development and men with improving in production management.
From the perspective of studies one can notice that those that have an average education are
more attracted by financial and production management classes. Those with superior studies are
more likely to improve in areas such as project management, financial and strategic management.
Additional specialties of the management are also desired by those that are interested to conduct
business. The greatest needs are related to marketing.
18.8
17.9
18.4
26.9
4.4
5.1
3.8
3.8
22.3
21.1
18.8
6.8
8.9
10.5
3.3
8.2
22.2
13.9
7.1
8
16.1
8.4
13.6
10
0 10 20 30 40 50 60 70
Access to EU funding
Business plan development
Project management
Financial management
Production management
Strategic management
Using computer for the
Other
None
Do not know/Do not answer
In which of the following fields you feel the need to train, to
improve your skills?
first choice
second choice
third choice
63,3
52,9
44,3
41,7
29,4
24
20,7
1,2
0,5
22

The need to improve in sales is tremendous in all the analyzed groups. For the unemployed
and workers from the private sector this need is overcome by the desire to improve their
knowledge of foreign languages. For the self-employed knowledge about informatics comes first.
This preponderance of marketing in training needs is explained by the desire of people from the
rural to understand how to find new markets and new customers for their products. As we noted
earlier, they considered themselves great technically skilled in fields in which will carry on
business, but they feel unsecure when it comes to selling their products. Young people focus on
mastering foreign language because they wish to seek customers in other countries. The elderly
rather want training in negotiation techniques, in a bid to get more profit from existing customers.
It is important that 60% of subjects would definitely be willing to undergo an
entrepreneurship training program. Nin stakeholder managers would be the first to be excited by
such a program, as well as women and those with higher technical education. Vocational school
graduates, farmers and self-employed had the greatest hesitations and doubts about such a training
program, but even in their cases we notices a high enthusiasm (50%).

Even when they knew the effort they must submit for completion of such a management
training program, people have not lost interest in it. This shows a great willingness to learn.

60.8
25.6
1.1
12.5
0
10
20
30
40
50
60
70
Definitely YES Probably Definitely NO I do not know
Would you be willing to enter into an intensive management training
for six months?
57.1
38.7
33.4
31.7
25.6
24.4
23.4
17.7
10.1
9.2
1
27.6
0 10 20 30 40 50 60 70
Marketing
Negotiation techniques
Foreign languages
Accounting
Communication
Informatics
Commercial law
Human resources
Psychology
Sociology
Other
I do not know
In what other fields you think you need training and advice to
perform in your work?
3 answers were allowed,
so percentages
sum exceeds 100%.

A surprise of this research was that people want to participate in a modern training, e-learning,
where they can communicate through the Internet with teachers and colleagues. To the same extent they
want their business ideas to be discussed in classes, to be transformed into practical projects. Contrary
to expectations, they are not running away from exams and evaluations, but they accept them as
beneficial happenings to their management career. Young people have a greater availability of taking
such courses, regardless of their existing education level.
Availability is reduced when it comes to paying the training courses.

I would like to attend business performance courses. I would not pay for them. (Man, VN,
18-35 years old, entrepreneur, high school educated)
In my opinion, if you want a good thing you have to pay. (Man, IS, 18-35 years old,
entrepreneur, high school educated)
Sure, I would pay. (Man, VN, 18-35 years old, entrepreneur, high school educated)
Yes, maybe a small fee (male, VN, 18-35 years old, entrepreneur, high school educated)
Of course, nobody is teaching for free. But if only it is useful. (Man, VN, 18-35 years old,
entrepreneur, high school educated)
For a good idea why not? It's too early to tell. (Man, VN, 36-57 years old, entrepreneur,
high school educated)
I do not know if I could afford it. (Female, AB 0.18-35 years entrepreneur, high school
educated)
21.1
4.6
1.8
0.6
0.5
71.3
0 10 20 30 40 50 60 70 80
500-1.000 EURO
1.000-1.500 EURO
1.500-2.000 EURO
2.000-3.000 EURO
Over 3.000 EURO
I do not know
How much would you be willing to pay for a 6 months
management and consulting course?
Willingness to pay for training courses is higher for non shareholder managers, public
officials and employers and is lower for farmers, unemployed and self-employed. College
graduates are more willing to pay than those who have graduated vocational schools, and women
are more likely to pay the costs of specialization in business than men. As they age, people are
more inclined to pay the costs of a management training course.
At the same time, the large amounts are factors of educational disengagement. People know
they have to pay for management training courses, but prefer to pay small amounts. And often they
say that they want these courses to be paid by someone else, not by themselves.

Conclusions
Business consulting is a rare experience: only 12.4% of survey participants used consulting
services so far. For almost half of the consulting beneficiaries the objective was accessing
European funds. For one quarter of these individuals business development through technical
advice was the reason for contacting a consultant. Another 30% of those that used consulting
services have opted for certification, insurance, legal, financial and accounting aspects.
A few over half (51%) of those who went to counseling were satisfied and very satisfied with the
advice received, as opposed to 37% of them who said they were dissatisfied and very dissatisfied.
In the top of consulting needs, with almost a fifth of all the formulated requirements is the
need for assistance to obtain European funds. The second requirement relates to providing
information about business opportunities in the area and about business ideas. On the third
position among the needs for consulting the following are priorities: for managers consolidating
management knowledge, project management and business development, for entrepreneurs -
business development, marketing and financial management skills are in third position.
Regarding the need for training the hierarchy is as follows: accessing European funds
(63.3%), developing a business plan (52.9%), project management (44.3%), financial management
(41.7%) production management (29.4%), strategic management (24%) and computer usage
(20.7%). Over 60% of respondents would definitely be willing to undergo entrepreneurship
training program, e-learning type, even for a period of six months but would prefer to pay small
amounts for these training courses or to be paid by someone else, and not by themselves.

References

David Philip, Getting Started, Kogan Page, London, 1998
Doru Curteanu, Management consulting for SMEs, Dissertation Paper, 1995
Earl M. Murman, Transitioning to a Lean Enterprise: A Guide for Leaders, Volume I,
Massachusetts Institute of Technology, 2000
Jonathan Rosenhead, John Mingers, Rational Analysis for a Problematic World: Problem
Structuring Methods for Complexity, Uncertainty and Conflict, 2nd Edition, John Wiley and
Sons, 2001
Mabin, Victoria J., Balderstone, Steven J., The World of the Theory of Constraints: A Review
of the International Literature, St. Lucie Press, 1999
The project Rural Manager within The Sectoral Operational Programme for Human
Resources Development SOPHRD, axis 5, DMI 5.2., is co-financed from the Social
European Fund
Viorel Cornescu, Paul Marinescu, Doru Curteanu, Sorin Toma, Management Form theory
to practice, University of Bucharest Publishing House, 2003
FISCAL MANAGEMENT OF ROMANIAN COMPANIES

Maria Zenovia GRIGORE

Mariana GURU

Abstract
This paper is aimed to analyze the taxation influence upon the companys activity. Fiscal
management is integrated into the company management and must therefore be defined in terms of
general policy objectives of the company. The efficiency of fiscal policy is an essential element of
fiscal management. This can be achieved directly (through the tax law that includes measures of
fiscal incitement) or indirectly (when the tax system offers a number of tax deductions for
expenses, the possibility to cover losses from previous financial periods, the limitation of
deductible expenses according to earnings before taxes etc.). The two forms of efficiency of fiscal
policy are placed in the calculation of relations between fiscal management, strategic planning,
tax risk and accounting. Fiscal policy should aim at the companys research and to achieve
optimal cost of taxation. This paper analyses the methods that the companies dispose of in order to
reduce this cost.

Keywords: fiscal management, fiscal policy, fiscal efficiency, cost of taxation, fiscal
optimization.

Introduction
Fiscal instability and the great number of laws which regulate various economic activities
influence decisively the business environment from Romania.
No matter how reticent the economic agents may be at the idea of taxation, lasting existence
and in conditions of legality of a company on the market oblige them to know and observe the
fiscal legislation. Even for those economic agents who want to avoid the payment of some taxes or
charges, it is important for them to know the legislative provisions in domain in order to choose
the most legal ways in this sense.
I shall present in this paper some concrete modalities through which managers can use the
fiscal provisions in order to influence positively the companys economic and financial
performances.
Since there are not aspects of financial and implicitly fiscal nature, which do not suppose, in
countertrade, the registration in accountancy, I considered necessary to tackle, in the first section,
the problem of the convergence between taxation and how the accounting theory can be applied in
the enterprises life. The role of fiscal management is to analyse the deviations resulted from the
incompatibility between the fiscal rule and the accounting one, the convergences between them, as
Lecturer Ph.D., Faculty of Economic Sciences, Nicolae Titulescu University, Bucharest (e-mail:
[email protected])
Lecturer Ph.D. student, Faculty of Economic Sciences, Nicolae Titulescu University, Bucharest (e-mail:
[email protected])

well as to establish on the basis of this analyse, the fiscal risk and the modalities of growth of the
companys fiscal efficiency.
In the second section of this paper, I emphasized the objectives of the fiscal management:
diminution of pressure of taxation and its deferral in time, use of fiscal variable with the purpose
of regularization in time of profits level registered by the company and assurance of carrying out
the companys tax liabilities with a very reduced cost and diminution of fiscal risk.
For the fulfillment of each objective, the company uses various fiscal optimization methods
and techniques. The third section comprises an analysis of the most used above techniques,
starting with the observation that fiscal optimization is realized at two levels: at the level of fiscal
regulations, by the retention of the most appropriate fiscal options and by the exploitation of fiscal
advantages offered by the fiscal law and at the level of management decisions, through the
integration of the fiscal parameter in taking decisions.

1. The relations between accountancy and taxation
Accountancy represents an instrument of knowledge and management of the patrimony,
financial situation and obtained result. It must ensure information for capital investors, for states
institutions (including fiscal administration), suppliers and employees.
With regard to these users, the accountancy should render a true, clear and complete image upon
the patrimonial and financial situation, as well as upon the result. The fiscal rules dont subordinate to
the presentation of the true and faire view of patrimonial situation, but they rather aim to stimulate or to
inhibit some activities. In this sense, we have the example of the investments stimulation which is
accomplished by different fiscal levers, as the accelerated depreciation or the tax exemption for the
profit reinvested in the production or purchase of technological equipments.
When the accounting principles are contradictory to the fiscal ones, the conciliation problem
arises between accountancy, which represents the societys interest and taxation, which represents
the states interest.
The companys managers have to make arbitrations between the duty to present the accounts
observing the true and faire view principle and the desire to optimize the fiscal cost of the
companys activity. A solution conformable to the accounting rules and principles can be
incompatible with the taxations point of view, which brings down penalties upon the company.
The profit and loss account as document attached to the balance sheet, in which the criterion
of delimitation of expenses and incomes is realized depending upon their economic nature,
satisfies first of all the states interest. The companys managers, who use the accounting
information for analysis, prevision and decision find in this document only but the profits value
and its origin after nature. Therefore, there are used in practice other models of the profit and loss
account, as for example the model of the Intermediate Management Balances. This model offers
the possibility to the financial analyst to establish the strategy regarding the companys
commercial policy, the suppliers policy, the production policy, the efficiency of the physical
capital and its renewal period, the analyse of the fiscal cost and its optimization, the staffs
efficiency and the way of growth of labour productivity.
The excessive taxation and the instability of fiscal regulations determine companies to
choose some accounting methods which finally dont render a true and faire view of the
patrimonial situation, but one adapted to fiscal and conjunctural rules. Given this situation, it arises
the problem of delimitation and classification on the hierarchical system of the relations between
the companys accountancy and taxation.
These relations can be classified in two categories: integrated relations and neutral relations.
Integrated relations are relations of connection or engagement, being determined by the
intersection between the accounting interest and the fiscal one. In the case of these relations, there
Maria Zenovia Grigore Mariana Gurau 165
are discrepancies between the principles of accountancy and the fiscal ones, which have to be
harmonized. In the sphere of these relations, we notice especially three problems: the depreciation
of fixed assets, the accounting evaluation of the patrimony and the corporate tax.
In the practice of countries where the accountancy is connected to taxation, there are
primarily deductible the expenses with the devaluation corresponding to the real depreciation,
justified from an economic point of view, being imposed the accounting norms. Taxation is also
used to incite companies to achieve productive investments. In this situation, the companies have
the possibility to register in accountancy buying up of annuities that dont correspond to an
economically justified depreciation of the physical capital. Thus, the accounting instrumentation
through the fiscal rule has a double drawback: on the one hand, a sub evaluation of the accounting
net value of the material investment in comparison with its use, and on the other hand an over
measure of expenses with the depreciation correspondent to the operating activity. The
implications of the fiscal rule lead to the obtainment of unreal Intermediate Management Balances
which are contradictory to the objective of true and faire view of annual financial documents.
In Romania, according to the Fiscal Code, the fiscal depreciation is realized without taking
into consideration the accounting depreciation, the text of the law lacking a clear delimitation
between the two procedures.
The Order of MFP no. 3055/2009 defines the fixed assets as being those assets intended to
be used on a continuous base for the development of the entitys activity. Relating to duration, the
same order shows that the depreciation of tangible assets is calculated beginning with the next
month of the putting into service and until the complete recovery of their entry value, depending
on the duration of the economic use and their conditions of use.
From a fiscal point of view, it is applied the article 8 from the Law no. 15/1994, by which
the normal duration of operation as well as the classification of fixed assets is approved of through
the government decision.
The Law no. 571/2003 regarding the Fiscal Code defines the fiscal value used for the
calculus of fiscal depreciation as the purchase cost, the production cost or the market value of
fixed assets earned for good and valuable consideration or constituted as a contribution, at the date
of entry in the tax payers patrimony. In the fiscal value, there are also included the accounting
revaluations performed according to the law.
From an accounting point of view, the revaluation of tangible assets is made at the fair value
from the date of the balance sheet. In case there are performed revaluations of redeemable fixed
assets which determine a diminution of their value under the entry cost, the fiscal value remained
unredeemable is recalculated till the level of the value established on the basis of the entry cost.
Any behavior regarding the principles and methods of evaluation is propagated directly
upon the depreciation and profit. Therefore, in the profit case, the taxation appropriated some
principles of accountancy. We refer to the principle according to which the evaluation methods of
the patrimony must be the same during the all financial year, as well as from a financial year to
another. If there are justified cases in which methods are changed, one must calculate the
influences upon the patrimonial and financial situation, as well as upon the level of the profit tax.
In the sphere of delimitation of integrated relations between accountancy and taxation, it is
of great interest their analysis through the provisions of the Fiscal Code, with reference to the
deductibility of expenses in the determination of the companys taxable profit. The allowable
expenses from a fiscal point of view are analysed from various points of view.
A first aspect refers to the fact that there are nondeductible from a fiscal point of view those
expenses that are enumerated in the Fiscal Code, no matter the nature of activity deployed by the
company.
The variety of expenses that are occasioned by the activity of economic agents makes
impossible a strict enumeration of non-deductible expenses from a fiscal point of view. Thus, the
principle of connecting expenses to incomes must be applied, since it imposes the recognition in
the financial situations only of those expenses occasioned by the current development of the
commercial societys activity. Any other occasioned expenses must not be recognized in the
financial situations. This point of view is more one of a strictly accounting nature. But, taking into
consideration the fiscal aspect of the problem, the company must register all documents that are
realized in its name, which it means that some of them contain expenses that are not recognized.
These expenses must be registered in accountancy, but they must be eliminated at the calculus of
the profit tax, thus obtaining a bigger value of the taxable profit and implicitly of the profit tax due
to state budget.
Another consequence of the application of connecting expenses to incomes principle is the
following: an expense is deductible from a fiscal point of view only if there are generated incomes
through its achievement. For example, if a company registers expenses during the period when it
doesnt deploy any activity, the occasioned expenses are considered non-deductible from a fiscal
point of view.
In the category of non-deductible expenses from a fiscal point of view, we can also mention
those expenses that produce incomes, but of inferior value. Thus, if an enterprise realizes expenses
generating incomes, but of inferior value, the difference between expenses (bigger) and incomes
(smaller) is considered no-deductible from a fiscal point of view, thus increasing the taxation base of the
profit tax. For example, a stock deficit due to a natural calamity will generate an expense by registering
as expense the value of the stock found deficitary at the inventory. If this stock was ensured and the
enterprise receives from the insurance company the equivalent value of the stock found deficitary at the
inventory, the value of this expense is considered deductible from a fiscal point of view; in the opposite
direction, the value of the respective expense is considered non-deductible.
These solutions for profit taxation are of a conciliating nature, in the sense that taxation
recognizes the accounting rules and principles and in consequence, it accepts the passage solution
between the accounting result and the fiscal one.
Neutral relations between accountancy and taxation dont affect directly the companys
profitableness; they appear in the case of dividends tax, wages tax, contributions to social
insurances, VAT (when it has a deductible pro-rata of 100%). The information offered by
accountancy is used by taxation in the calculus and discount of taxes, charges and contributions.
As a rule, neutral relations dont generate problems regarding the harmonization of the two
interests. These relations can become inciting for the companys fiscal management, implicitly for
accountancy, only as far as they mobilize the imposed subject to a behaviour registered in the
fiscal efficiency.

2. The objectives of fiscal management
Taxation presents a double aspect for the economic agent. On the one hand, it concretizes in
compulsory tax bites for the state, with influence upon the companys treasury. This aspect gives
content to the notion of pressure of taxation.
On the other hand, the company can also use in its interest the fiscal methods and principles.
Thus, in operating activities, financial or of companys investments, there can be used methods
and techniques whose fiscal incidences offer advantages concretized in tax discounts or in a more
favorable treasury situation. To administrate taxes means, first of all, to accept the fact that these
taxes, even if they are compulsory, they can be used in its interest, by transforming them in an
active variable of strategy.
There are at least two criteria of the quality appreciation of actions and decisions taken in
the fiscal management of the company: fiscal efficiency and confirmation of the observance of
fiscal regulations to the fiscal administration.
a. Fiscal efficiency constitutes an essential element of fiscal management. The fiscal
management, as well as the commercial management or of production, integrates in the companys
management and therefore it must be defined depending on the objectives of the companys
general policy or in relation with the adopted strategy. The companys fiscal strategy must be
considered as a sub-strategy of the companys general development. The fiscal management must
be centered upon the identification of means of fiscal efficiency, of conditions and directions of
this efficiency.
The companys fiscal efficiency can be achieved directly or indirectly.
Direct fiscal efficiency can be realized through the fiscal law which comprises measures of
help or of fiscal incitement. The company which uses the best these incitement measures obtains
an immediately financial advantage. This is the most important aspect in the research of fiscal
efficiency. The obtainment of legal fiscal advantages supposes that the company knows well the
set of measures in force, despite of the temporary character of fiscal rule and of frequent legislative
modifications which characterize the Romanian economic environment.
Among the means of obtainment of direct fiscal efficiency, we can mention:
Use of evaluation methods of output stocks depending on inflation (LIFO );
Profit investment in the production or purchase of technological equipments, with the
consequence of the total profit tax exemption;
Option to use the accelerated depreciation instead of the linear one for some fixed assets (with
the approval of the Ministry of Finance on the basis of the documentation presented by the company);
Option to be or not to be VAT payer under the legal level of the exempt turnover.
Indirect fiscal efficiency is possible on condition that the system of taxes, charges and
contributions offers the possibility of fiscal deduction of some expenses, limitation of deductibility
of other expenses depending on the gross mass of the profit, coverage of losses from previous
financial periods etc.
b. Confirmation of observance of fiscal regulations. The company assumes a fiscal risk,
and the control authorities accept and admit certain ability in relation to regulations of fiscal
nature. The limit that divides the acknowledged fiscal ability from the excessive one is far to be
established. This delimitation of the fiscal management doesnt involve the abuse of fiscal law.
As a result of the verification by fiscal administration of the correctness used by the
company to honor its obligations to the state, we can sometimes emphasize actions whose
character can be considered abnormal (that means it doesnt require any countertrade for it). The
appreciation of the normality of an act of management can be yet quite subjective and it is rather
made at economic level than at juridical level.
Here are some examples of situations that can be considered abnormal by fiscal
administration:
Unjustified expenses as a rule (those which have nothing to do with the companys
interest);
Expenses whose size is exaggerated (which generally concretize in advantages conferred
to companys administrators or partners);
Renunciation of some incomes without countertrade or without justification (renunciation
of debts, granting of advances without interests);
Transfer of pressure of taxation to other tax-payers;
A broader interpretation of accounting principles (as the independence of financial
periods).
In Romania, such acts could be identified in:
Advances offered between companies, which can constitute real inter-companies loans,
without interests;
Renunciations of debts inside the groups;
Purchase by the enterprises owners of cars of personal use, but which are registered in
the companys accountancy, for the obtainment of obvious fiscal advantages: deduction from
incomes of a supplementary depreciation which diminishes the taxable profit. Until the issue of
OUG no. 34/2009, another fiscal advantage in such a situation was constituted by the VAT
deduction from the suppliers invoice (this tax was completely supported by the enterprises
owner, if the purchase was made in his name). At present, the right to VAT deduction is exerted
only in a few situations stipulated deliberately by law.
The fiscal administration is considered a frontier which divides the acknowledged fiscal
facilities from the exaggerated ones.
The companys fiscal management must be correct, the choices we make must correspond to
the rules of fiscal law. Their infringement leads to an incorrect fiscal management or to tax
evasion.
The fiscal law defines the tax evasion as embezzlement from taxation of the taxable matter.
Depending the way it is performed, the tax evasion can be: legal (licit) and illegal (fraudulent or
illicit). In most cases, the legal tax evasion is defined as a versatile use of possibilities offered by
law and is distinguished from the fraudulent tax evasion which designates a law infringement.
The legal tax evasion allows the embezzlement from taxation of a part from the taxable matter,
thing which is not considered contravention or infringement. This becomes possible because the
legislation from different world countries allows the taking out from the tax incidence of some incomes,
parts of incomes, components of fortune or of some acts and facts that on conditions of a rigorous
observance of legislation and taxation principles, they shouldnt be exempted from taxation.
The licit tax evasion is favored by:
- granting some fiscal facilities under the form of exonerations, partial exemptions,
discounts, deductions etc.;
- granting some temporarily defined exemptions, in the case of setting up of new
commercial companies;
- exploitation of some laws gaps etc.
Tax havens are a form of the licit tax evasion. They represent little juridical entities of the
State or they have special statute, offering fiscal advantages, in comparison with other juridical
entities, to companies which establish their registered office or to private individuals who have
their residence on their territory. On the territory of these states, there are set up many foreign
companies to which are directed the profits of productive units being on the territory of other
countries, the tax collector being thus evaded.
Among the advantages offered by tax havens to companies, we mention the following:
- Income and profit tax exemption (or the application of a very reduced quota),
- Absence of some restrictive regulations regarding the banking and financial system,
- Absence of a control upon exchanges, etc.
Fraudulent tax evasion is present on a larger scale than legal tax evasion and it is based on
fraud and dishonesty.
Even if there are many proceedings to make a fraudulent tax evasion, this can be classified
in four categories (table 1).
For the delimitation of the frontier between legal and illegal tax evasion, the doctrine has
systematized three criteria: the taxpayers fiscal motivation, the forced use of civil law and the
fiscal profit obtained from the respective operation.
Tax audit can provide useful information not only to the purposes of fiscal bodies but also,
for example, to investors or even to a companys administrators, regarding the efficiency in taking
decisions or the way operations were carried on in the respective company.
Table 1: Categories of fraudulent tax evasion
Fraudulent tax
evasion
Explanations
Traditional fraud
(through
dissimulation)
Traditional fraud consists in the non-drawing up of documents asked by
legislation in force or their incorrect drawing up.
Examples:
- Drawing up of false fiscal statements, when there are deliberately
mentioned only a part from the realized incomes;
- Drawing up of false customs declarations at the goods import;
- Sales without invoice;
- Registration of fictitious expenses;
- Recompense of some activities in a secret manner (for example,
illicit work).

Juridical fraud Juridical fraud consists in hiding the nature of a contract or agency with
the purpose of reducing tax liabilities.
Examples:
- An economic activity can be deployed under the form of an
association without lucrative purpose in order not to be liable to the
profit tax which naturally has to be due if this is deployed in
participation in a business of full member type.
- Setting up of commercial firms in chain by the same employer or
group of associates immediately after their society came out of the
period of profit tax exemption from payment (in the period when new
established companies benefited by this exemption).
Accounting fraud Accounting fraud consists in false or inexact entries in the accounts
which affect the balance sheet, having as a result a diminution of tax
liabilities.
Examples:
- Entries with the purpose of reducing the results;
- Setting up of passive accounts with fictitious nomenclatures;
- Illegal liquidations and liquidations at overestimations;
- Undisclosed reserves;
- Wrongful entries with legal documents;
- Entry of unreal figures in commercial ledgers;
- Concealments of parts from profit by omission;
- Booking of expenses and fictitious invoices etc.

Fraud by evaluation Fraud by evaluation consists in the subevaluation of the amount of
taxable matter.
Examples:
- diminution of stocks value and overestimation of liquidations and
provisions with the purpose of delaying the profit
- in the case of authentication of buildings alienation acts, the parties
often understand each other that the sale price registered in the notarially
certified act of sale be inferior to the one practiced in reality, in order
that the stamp tax be calculated at a smaller price.

In conclusion, fiscal management consists in the administration of the companys fiscal side,
so that be ensured the observance of regulations with fiscal character and be optimized the level of
pressure of taxation on condition that the realized gain justifies the efforts made.
Yet, fiscal options at the level of the economic agent have also limits such as:
- juridical limits, in order not to slip down in tax evasion.
- opportunity limit which derives from the companys general policy confronted with certain
strategic objectives. Some fiscal options can contravene to long-term objectives regarding the
imperatives of the capitals financing or mobility. Therefore, the profit diminution through fiscal
techniques can reduce the investors trust, diminishing their interest and deteriorating the
companys image on the financial market. Also, even in an environment where the financial
market hasnt a very important role (as it is the case of Romania) there are situations when the
board of administration or the companys managers have an interest that, through methods and
options of any nature (including the accounting and fiscal ones), to achieve a bigger declared
profit. This behavior can be explained by the fact that the management position and the managers
remuneration are often related to performances in terms of profit realized by the company in a
given period.
Taking into account the definition given to the fiscal management and the limits specified
below, we can emphasize the following objectives of the fiscal management:
Diminution of pressure of taxation, as an absolute size and as share in the turnover;
Deferral in time of pressure of taxation;
Use of fiscal variable with the purpose of settlement in time of the level of the profit
registered by the company;
Assurance of carrying out the companys tax liabilities with a very reduced cost and
diminution of fiscal risk.
For the fulfillment of each objective, the company will adopt proper fiscal policies.
The diminution of pressure of taxation supposes as a rule, the diminution of taxable profit,
because the possibilities to influence other components of the pressure of taxation are rather
limited. This objective can be realized by using some evaluation methods, through the optimum
determination of profit or through reorganization operations.
The deferral in time of pressure of taxation is the objective which offers most of the
possibilities of realization. In conditions of inflation, its importance increases due to the favorable
influence it has upon the treasury situation.
The companys interest is not always satisfied through diminution or deferral in time of
pressure of taxation. There are situations in which it is preferable to declare, in annual accounts,
bigger profits than those actually realized in the fiscal period, either to ensure a relatively constant
level of these profits from an year to another, or with the purpose of distribution of regular
dividends, either to transfer them in more generous fiscal territories, or for reasons of image,
financial or commercial nature.
In all these situations, the fiscal instruments can be used successfully. Sometimes, even
some components of the companys strategy make no sense but in the context of the fiscal
advantage they offer (fiscal leasing, constitution of subsidiaries in tax havens).

3. Techniques of fiscal optimization
Fiscal policy at the companys level represents the concrete manner through which there are
used the specific instruments and techniques in order to realize the objectives of the fiscal
management. The fiscal management supposes a series of activities and technical competences
which can be synthesized as follows (table 2):
Table 2: Activities of fiscal management

Activities Technical competences
Assurance of juridical
supervision necessary to
the application of tax
liabilities
Selection and consultation of adapted and updated sources of
information
Identification of fiscal evolutions having consequences upon the
company
Identification of the
sphere of application of
companys taxes and
operations deployed by
them
Identification of fiscal disposals applicable to the company and
operations deployed by them
Taking into consideration the evolution of fiscal regulations and the
analysis of their consequences
Identification of terms
of realization of fiscal
works
Determination of nature and periodicity of different fiscal
obligations and their incidence upon the company
Realization and control
of fiscal works
regarding the taxes due
by the company
Determination of tax base for the taxes due by the company
Drawing up of fiscal declarations
Operation of taxes and charges
Detection of anomalies after the effectuation of the control
Participation to the
evaluation of fiscal
options
Sighting and analysis of different fiscal options of the company
Simulation of the effects of fiscal decisions
Evaluation of financial impact upon the fiscal decisions

Fiscal optimization is realized at two levels:
A) at the level of fiscal regulations, by the retention of the most appropriate fiscal options, among
those proposed by law and by the exploitation of fiscal advantages offered by the fiscal law;
B) at the level of management decisions, through the integration of the fiscal parameter in
taking decisions.

A) The identification of optimum fiscal options aims especially to obtain one of the
following advantages: deferral in time of tax liabilities and diminution of the tax base for the taxes
due by the company.
The deferral in time of tax liabilities can be realized through a set of fiscal measures such as:
appropriate use of evaluation methods at the entry of goods in patrimony,
appropriate use of evaluation methods at the output of goods from patrimony,
optimum use of amortization systems,
constitution of provisions;
choice of the VAT term of payment (monthly, quarterly, half-yearly or annually);
Regarding the evaluation at the entry in patrimony, if the company has an interest to defer a
part from the pressure of taxation, then it will act so that a greater part from the expenses that
could be found in the entry value (purchase cost or production cost) be considered expenses of the
period, thus enjoying the immediate and integral deductibility. The other way, if we desire the
accounting determination of a bigger profit, then there will be included in the entry value as many
expenses as possible. In this case, the deductibility of the respective expenses is deferred till the
output from patrimony (in case of stocks) or till the moment of the amortizations book entry (in
case of fixed assets within the limit of the degree of use).
Evaluation at the output from patrimony of interchangeable (or fungible) elements, as stocks
and securities, can be made through various methods. Here also, the fiscal interest recommends the
use of the method which allows the evaluation at the biggest price. In conditions of inflation, such
an approach is better also due to its financial implications.
The fact that legal regulations allow the use of three depreciation systems for fixed assets,
offers the possibility to the company to choose between a faster or a slower recovery of the
amounts invested in immobilizations. From a fiscal point of view, it is favourable the method of
depreciation which defers the pressure of taxation, that is the method which allows a faster
recovery through value depreciation of fixed assets. The systems of regressive and accelerated
depreciation are also useful to fiscal management objectives: in the first years, the expense with
the depreciation is bigger, so the fiscal profit and the tax are lower, while, in the last part of the
normal duration of functioning, the depreciation is lower and it is paid a bigger tax.
Provisions, whose constitution is based upon the probability of appearance of losses, risks or
depreciations, represent an instrument privileged by fiscal policy as far as their fiscal deductibility
is admitted. At constitution, the taxable result diminishes, without generating payments, and at
cancellation or diminution there are discovered incomes which dont generate incomings.
The companys fiscal options can aim to minimize costs with the due taxes. Among these,
we mention:
Option to be registered as unincorporated enterprise (income tax payer) instead of trading
company (profit tax payer). This option has become more and more attractive for many enterprisers in
conditions of the introduction from 2009 of the minimum tax, through OUG no. 34/2009.
Option of companies with annual turnover inferior to the limit of 35.000 euro, to be VAT
payers. Exporters can be interested to choose the VAT payment, thus having the possibility to
recover the VAT paid to purchases, as well as the little tradesmen or service providers, who will
deduce the VAT corresponding to supplies and will transfer the right of deduction upon the clients.
In this way, the VAT is no longer considered an element of expense, so it will not influence the
profit and loss account.
Option to invest the profit in the production or purchase of technological equipments,
with the purpose to benefit by the total profit tax exemption, according to the Law 329/2009.
Restructuring of companies as fusion or assets distribution; the advantage of such a
measure is that the possible loss of one of the companies is deductible from the profit of the
company resulting after the restructuring.
Fiscal management has not in view only the national frame, but it is also extended to the relations
of the company with other countries. There are taken into consideration the possibilities of optimization
of treasury flows in conditions of international financial, commercial and fiscal assemblies.
Also, the enterprisers interest to concede to state authorities as less as possible from the
realized incomes incites to optimum determination of profits, on the basis of a real international
fiscal strategy. This method of fiscal optimization ca be used with good results at the level of
groups of companies, through the transfers of profits between the companies from the same group,
so that in fiscal territories with a high quota of tax, the profit be smaller or inexistent, while where
taxation is made in more favourable conditions, the profit be as big as possible. The practical
realization of this objective is made through the transfer prices between the groups companies,
through the control of inter-group circulation of licences, certificates or technologies or through
the creation of captive companies.
B) Management decisions and fiscal options
Management decisions which can have fiscal implications, generally aim to choose the
companys juridical form, decision of investments, choice of instruments of money investment, of
financing modalities, of the allocation way of the net profit etc.
The decisions of money investment are taken depending on the risk and efficiency, but also
on the fiscal advantages correspondent to each category of investment (tax exemptions, smaller
quotas of taxation etc.).
The decision of investments must take into account the fiscal parameter. We shall analyze
first of all the fiscal implications of the decision to buy or to hire a frozen asset in leasing system.
- In order to buy the asset, the company must establish a financing plan. The fiscal cost of
financing varies depending the financing source: internal (self-financing) or external (increase of
capital or loan). If the company is the owner of the frozen asset, this will appear in the balance
sheet. This thing allows the thirds information upon the content of the operating capital disposed
of by the company. Moreover, the company could deduce its expenses with the depreciation and
maintenance of the respective goods.
- In case it resorts to leasing, the company uses the hired asset for a certain period, having
the possibility to buy it at the end of the contract at a pre-established value (residual value). The
leasing has the advantage of flexibility, but it is more expensive, despite the deductions offered to
the company. It allows the differentiation in time of the tax as a result of the deduction of royalties
during a period inferior to the amortization period. In a fiscal plan, companies which resort to
leasing benefit more rapidly by a tax saving because the annual royalty is in most of the cases
bigger than the annual amortization expense.
The decision of financing must take into consideration the following aspects:
- through indebtedness, the companies benefit by a tax saving, as a result of deductibility of
interest expenses (total deductibility in case of banking loans and limited deductibility in case of
loans from associates or thirds) and by depreciation expenses.
- In comparison with financing through loans, financing through leasing has as a fiscal
advantage the fact that royalties expenses are bigger than the amount of interest and depreciation
expenses. Royalties are submitted to VAT, which is deductible.
- Self-financing has two components whose fiscal cost is different: current self-financing or
of maintenance, formed of annual liquidations, which allows for the compensation of
immobilizations depreciation, and self-financing of increase, which represents the net income
reinvested in the company.
The depreciation expense generates a fiscal economy through taxation and also acts upon
the capacity of companys self-financing, an action that could generate superior economic and
financial results in the future.

Conclusions
The interdependence between accountancy and taxation is decisive within the companys
fiscal management, even on conditions of incompatibility of some of their rules. The cause of this
incompatibility is the fact that the accounting principles regarding evaluation and economic
calculus are not convergent in all cases with the fiscal ones, which do not subordinate to the
presentation of a true and faire view of operations that are taking place within the company. The
study object of fiscal management is constituted by the analysis of distortions resulted from the
incompatibility between the fiscal rule and the accounting one and the determination, on the basis
of this analysis, of the strategy, fiscal risk and companys fiscal efficiency.
Within the legal frame created by the public authority, the company has the possibility that,
in order to solve a problem, to choose between many methods and techniques whose fiscal
incidences are different. Fiscal management proposes the optimization of pressure of taxation in
conditions of efficiency and within the larger frame of the companys total management. Yet, the
options in fiscal matter at the level of the economic agent have also limits. First of all, there is the
problem of juridical limits, in order not to slip down in tax evasion. Then, we have to take into
account an opportunity limit which derives from the general policy of the company confronted
with certain strategical objectives. It happens sometimes that the best fiscal choice not to be, in a
compulsory way, the best solution for the company from the point of view of its development
strategy. Some fiscal options can contravene to long term objectives regarding the imperatives of
the capitals financing or mobility. The profit diminution through fiscal techniques can reduce the
investors trust, diminishing their interest and deteriorating the companys image on the financial
market. Also, even in an environment where financial market hasnt a very important role(as it is
the case of Romania) there are situations when the board of administration or the companys
managers have an interest that, through methods and options of any nature (including the
accounting and fiscal ones), to achieve a bigger declared profit. This behaviour can be explained
by the fact that the management position and the managers remuneration are often related to
performances in terms of profit realized by the company in a given period.
The effective realization of fiscal management objectives takes place through the companys
fiscal policy, as a concrete manner of use of specific instruments and techniques of fiscal
optimization. Therefore, fiscal policies chosen by the company with the purpose of diminution or
deferral of pressure of taxation can refer to the optimum determination of profits, restructuring
operations, choice of the companys juridical form, depreciation methods, choice of the VAT
taxation system, decision for investments, instruments of money investment, modalities of
investments financing, the way of allocation of the net profit etc.
The decision for investments and the financing one take into consideration the deductible
character of some expenses (expenses for interests, depreciation, provisions, royalties etc.), and
their values constitute important variables for the fundamentation of the respective decisions.
Each tax that the company has to pay for the obtained profits/incomes or for the deployed
activities has a date of payment stipulated by the fiscal legislation. What can be interesting for the
companys management is the modality through which all these payments are joined in a general
plan of recurring payments, in other words, the way in which the companys treasury will be
affected as a result of the carrying out of tax liabilities.
In conclusion, we can affirm that fiscal regulations must be carefully analysed, not only from a
strictly accounting point of view, but also from the perspective of the implications exerted upon the
fundamental financial indicators which characterize the company, as well as upon the decisions of
investment and financing as a whole. In this way, the manager can identify the most efficient ways of
growth of his companys value, by finding an optimum from a fiscal point of view.

References

Feleag N., Malciu L., Politici si opiuni contabile, Ed. Economic, Bucuresti, 2002
Fernoux P., Gestion fiscale du patrimoine, Ed. Groupe Revue Fiduciaire, 2009
Grigore M., Guru M., Fiscalitate. Noiuni teoretice i lucrri aplicative, Ed.Cartea
Studeneasc, Bucuresti, 2009
Istrate C., Fiscalitate i contabilitate n cadrul firmei, Ed. Polirom, Iai, 2000
Morariu A. (coordonator), Contabilitate si fiscalitate vol I, II , Ed. Ex Ponto, Constana, 2005
Ristea M., Dichotomy in accounting-taxation and regulatory constructivist theory, Congress
of Romanian accounting profession, CECCAR Publishing House, Bucharest, 2008
Stoian A., Contabilitate si gestiune fiscal, Ed. ASE, Bucuresti, 2003
aguna D., ova D., Drept fiscal, Edition 3, Ed. CH Beck, Bucuresti, 2009
Legea nr. 15/1994 privind amortizarea capitalului imobilizat in active corporale si
necorporale
Legea nr. 571/2003 privind Codul Fiscal
Ordinul MFP nr. 3055/2009 pentru aprobarea Reglementarilor contabile conforme cu
directivele europene
OUG nr. 34/2009 cu privire la rectificarea bugetar pe anul 2009 si reglementarea unor
msuri financiar-fiscale
DIRECTIONS FOR IMPROVEMENT OF THE MANAGERIAL
ACCOUNTING
Oprea CLIN

Abstract
This paper presents the actual accountancy methodology and costs calculation in a single
circuit which considers the collecting and distribution of them related to their destination on
calculating articles - does not allow the distinguished reflection of the expenses depending on the
economic nature. We are presenting some consideration for general organization of the
accountancy and the production expenses especially in two circuits, one depending on the
economic nature in the general or financial accountancy, on their destination, in the managerial
accountancy. In the second part of the paper we present directions for improving the costs
calculation that respond better to the companies management.

Keywords: managerial accounting, cost calculation, direct costing, cost analysis, cost
calculation methods

Introduction
The current methodology for accounting and production costing in one circuit (Clin, 2003),
which is considering the collection and their distribution as their destination - the calculating
articles, does not allow reflecting the distinct economic costs by nature. This makes it harder to
identify ways to reduce costs and particularly materials costs of production which in our economy
have a fairly significant percentage, setting the smooth efficiency indicators of economic activity
based on unit production costs, calculate the efficiency of the final results of the company, setting
the assets situation and timely preparation and presentation of current financial statements (balance
sheet, profit and loss, etc..) which are required to be published. Here are a few reasons for which
some authors have decided to organize general accountancy and managerial accountancy in
particular in two circuits, one depending on the economic nature or financial accountancy and
second, in the managerial accountancy.

Proposal for improvement of the Class 9 Management accounts
About the way how managerial accounting or management organization chart of accounts in
general is designed and the operation of accounts in Class 9 "Management accounts" of this plan
can be a series of proposals for improving the methodology of calculation of the cost on
calculating objects (Clin, 2007).
Thus, to specify the operation of each account referred to in this class, bear in mind that the
ultimate aim of registration with their expenses is not just "venting" them in order to determine the
Professor, Ph.D., Faculty of Economic Sciences, Nicolae Titulescu University, Bucharest (e-mail:
[email protected]).
total by destination on types of activities, but calculating the actual cost of on calculating objects
and deviations from the predetermined costs in the same structure. It implies, first, that the
expenditure of financial accounts to be grouped collected and distributed in managerial
accounting, regarding their use and sequencing of strict calculation of the unit cost of product. It is
this latter issue that is not respect and we think that can be achieved by operating the following
concept of functioning of the accounts in Class 9 (see diagram 1).

Diagram 1.
Operation of accounts in Class 9 "Management accounts"

D 901 "Internal settlement regarding expenses" C
Real cost of the finite products
(account:931)
Actual cost of the production in progress
(account:933)
Production costs taken from financial accounts
which are registered by their economic nature and
management accounts recorded by destination
(account:921,922,923,924,925)

D 902 "Internal settlement regarding the obtained production" C
Actual cost of finished products obtained
(account:921)
Actual cost of production in progress
(account:933)
Standard cost of finished products obtained
(account:931)
Price differences related to finished products
obtained (account:903)

D 903 "Internal settlement of price differences " C
Price differences related finished products
produced, distributed (account:931)

D 921 "Basic business expenses " C
Direct costs of core business (account:901)
Costs of auxiliary activities (account:922)
Indirect costs of production (account:923)
Administrative overheads (account:924)
Sales Expenses (account:925)
Actual cost of finished products and production
in progress
(account:933)
(account:902)

D 922 "Costs of auxiliary activities" C
Collected expenditure (account: 901)
Mutual settlements (account: 922 in
analytical)
Mutual settlements (account: 922 in analytical)
Breakdown of expenditure on consumer sites
(account:921,923,924,925)
Actual cost of production in progress (account:
933)
Actual cost of production goods (account:902)

D 923 "Indirect costs of production" C
Indirect costs of the main production sections
(account:901)
The share of indirect costs of the main
production sections distributed by calculation
objects (account:921)
Calin Oprea 177
D 924 "Administrative overheads" C
General administrative overheads
(account:901)
Administrative overheads share distributed by
calculating objects (account:921,922)

D 925 "Sales expenses" C
Sales expenses (account:901)
The share of expenditure allocated by
calculating objects (account:921, 922)

D 931 "The cost of the obtained" C
Standard cost of finished products obtained
(account:902)
(account:901)

D 933 "Cost of production in progress" C
(account:921)
Actual cost of production in progress settled on
account of expenses incurred (account:901)

Applying this concept, although the results in cost calculation on computer objects to
determine the actual deviations from the predefined costs, and other variants based on the concept
shown depending on the method of calculation used, are nevertheless a number of limitations
(Clin, 2008). Thus, we believe that the main limit is given that accounting is organized in double
circuit leading to a large volume of work, which will cause many businesses to waive the second
circuit - managerial accounting and cost calculation - as a result overall activity may be established
on the basis of financial accounting, bookkeeping and making settlement that allows the tax line
and the preparation and timely submission of annual financial statements. This leads to lack of
information necessary for decisions of the managers, and, above all, to drive the production
process. The lack of such information actually leads to ignorance of the economic cost, the unit
cost of output, the expected cost (i.e. preset cost on calculating objects and cost budgets), the
deviations of actual costs from the preset costs - and budget control for the budget for development
cost of the analytical results produced and the internal structure of the company, the real bases for
assessing stocks of finished goods and production in progress, etc., strictly necessary information
for internal business analysis of operating decisions on short and medium term, the definition of
development strategy and trade policy of the company, etc.
Removing those limits and determine the companies to organize together with financial
accounting the managerial accounting and cost calculation, so that it can meet all the requirements
of internal and external management of business, including timely preparation and submission of
statements financial, can be achieved by applying an integrated model of financial accounting and
management of costs and their calculation.
The proposed model envisages a merger between Class 6 accounts Expenditure accounts
and those in class 9 "Management accounts" of the general plan of accounts in compliance with
grouping of the financial accounting on the three categories - operating expenses, financial
expenses and extraordinary expenses-, monthly costs settlement through the profit and loss
accounts for the outcome in the global financial accountancy, but with the possibility of
establishing analytical results in managerial accountancy.
Under this concept, calculating accounts in Class 9 in which the spending will be registered
by purpose will be included in class 6 to reflect the operating costs by destination and by nature,
maintaining accounts and financial costs of extraordinary expenses, and at the end of the period of
all management accounts will be closed through profit and loss account to enable comparison of
costs with revenues and determine the final outcome.
To do this improvement, accounting information system for collecting operating costs and
costing of production can be organized in two variants, namely:
a) the usage in the whole system costs and costing calculation registration, the cost
structure elements (nature of expenditure) grouped by function and the direct and indirect costs
using calculating accounts in Group 92 of the general chart of accounts, which means that the
process of collecting expenses from all structures which generate costs to consider destination and
in doing so, the nature of expenditure. Monthly, expenditure outlined in this vision can settle on
revenue for the outcome, but it and can be calculated and allocated to determine the actual cost of
a given product, orders or semi-product which in its initial phase will receive expenses directness,
also ordered by the economic nature;
b) maintaining the registration system of operating expenses - which form the basis of
production costs - the structure of the calculating articles, but its inclusion in a largest possible
number of items of expenditure that is a based by economic nature, that correspond to the primary
elements and complex expenditure ratio, and in particular indirect substantial decrease in cost of
the products. In this case, indirect costs should be budgeted and followed by identifying types and
their distribution in the cost of the products and must consider both the destination, places that
they rise and economic structure by nature, so that they occur after the product cost structure
together with other direct costs.

Proposals to improve methods of costs calculation
Operative and future management of any business and hence, of any economic unit requires
improving the methods and procedures used for this purpose and, within them, costing methods
have an important place. This improving should cover both the need to obtain essential
information to include data on cost of production and traceability pre-operative compliance with
the expenditure budgets and the determination of reasonable estimates, to allow optimization of
the relationship of the workload, cost of production and profit (Clin, 2005).
So, ultimately, improved costing methods aimed at providing information leading to the
development of science-based decisions, fast and efficient ones to intervene actively and fully in
the organization and management of the production process.
Costing methods should become effective management tools to business managers, active
tools of analysis, control and forecasting.
Traditional methods of cost calculation based on actual production costs, which are
currently used in our country (global approach, phases method and orders methods) only allow for
a control of compliance with the level of postoperative costs. They doesnt make possible the
operational knowledge of deviations from normal conditions of production deployment considered
when budgeting or spending standardization in detail, on types, causes, places of production, etc..
As a result, the information provided does not allow knowing at the right time the noneconomical
expenses, the difficulties occurred in the normal course of business, they did not consider the
issues of optimizing the activity and minimize the costs. All these aspects burdensome
substantiation of the management decisions to be taken in relation to costs, with the results.
To overcome all these shortcomings, which manifest itself in information on production
costs, it must improve accounting methods of production costs and costing so that new methods
Calin Oprea 179
make it possible to provide current or future change effects and to determine the cost with
satisfactory accuracy. This can be done several ways.
A first way is the improvement of traditional methods, which can be achieved by using the
calculation of projected prices or already computed as is the standard or budgeted cost; they would
become recorded prices. During the course of business it will be able to determine the actual cost by
monitoring and recording operational deviations of actual expenditure from these prices. On this basis it
can be created conditions to calculate the actual cost efficiency and to analyze deviations from the
original provisions for short periods of time in order to understand the degree of compliance with
budget production costs, the causes for such deviations and the adoption of most appropriate decision
for their removal or mitigation. Effectiveness of such methods of calculation depend on the degree of
reliance on scientific information on production costs, the budget forecast production costs and
standards of expenditure (consumption of materials and labor).
Such conditions creates the possibility of applying the principle of management by
exception, which is currently the most rational choice conception and providing useful information
to beneficiaries at different levels of the enterprise and providing possibilities for upper-wide
information system . As is known, the knowledge of the anomaly (deviation) is more important for
management decisions than the whole mass of records.
By applying this method of management the foresight aspect of the information is
developing, which leads to ease of analysis, decision, and actions to improve business.
So, tracking production costs is done at the level of the production process, signaling all
deviations from normal.
Another way is to study possibilities for experimentation, adaptation and generalization of
modern calculation methods used in some advanced countries, or elements of them; for this
purpose, a critical analysis of their features is required, taken in light of actual conditions in which
economic activity takes place in our country and only then decide what methods can be adopted or
what items may be taken depending on the opportunity to provide information on costs of decision
making.
In this respect, we believe that the management at various levels of business activity can pay
attention to monitoring and calculating the cost of production expenses on places as it is called in
the literature on cost centers or business centers. These may include a production department, a
workshop, a group of machines, installation, functional service etc. Monitoring activity and
calculating cost on locations expenses aim is to tighten the responsibility of each employee in
economical expenditure of material and financial resources that were provided to achieve a certain
volume of activity. This method contributes to strengthening economic management, namely to
increase the economic efficiency of business.
It is necessary that the information about the cost of production to show that expenditures
are considered normal under certain operating conditions, as a certain level of appropriate standard
activity and, therefore, to be incorporated in production cost; however, to reveal which unforeseen
expenses arise in the normal operations of the company accidentally and it should not be
incorporates in the cost of production. In some developed countries these costs are passed directly
to final results, because they calculate the total cost. This would you have a great importance
because the management know the degree to which work activities and the undertaking of fixed
costs should not be incorporated in production cost due to a lower activity level than that normally
found in forecast calculations, i.e. the loss of subtasks (improper activity) which reduce the overall
outcome. In our country, in the current cost accounting system the cost of subtasks is also
determined which usually is not included in cost of products, but is reflected directly in profit or
loss. In the subtasks costs the costs of scrap and losses caused by technical failure of the
production are included.
Such a costing method, known as the "rational imputation", provides information to the
leadership to watch if the business falls within the normal, to examine carefully the two major
categories costs, variable and fixed and determine the level of activity influence the cost of
production.
We consider preparation of various cost budgets for various sectors of business (production,
sales, administration, etc.) of particular importance for effective management of business, each of
them having a certain amount of activity. Based on these types of budgets the general budget is
drawn up for the entire enterprise and one can determine the forecast results of each activity.
Respective budgets can be developed in the production departments, workshops, groups of
machines, functional services etc., so at the level of costs places as activity centers and at the same
time responsibility places.
Such a way of management information enhances and deepens the expected character of
information on production costs and facilitates the control of production costs in relation to the
achieved level of activity, as the basis for decisions regarding the level of activity that the
company should reach to achieve efficiency.
An important role is also played by the knowledge of the information on variable and
operational costs, fixed and costs structure costs. Based on the information on variable costs of a
particular period the management may provide direction for any amount of their activity level,
since these costs vary with the volume of activity and volume production capacity and their related
costs, i.e. fixed, remain unchanged. This allows short-term decisions. Not like this stand the
problem with the costs structure, which are generally fixed for a certain volume of activity for a
certain period of time in which the activity fluctuates around an average. Information about these
costs are important for management because they remain fixed, increased or decreased level of
activity compared to the average leads to a change in the opposite direction of the production cost,
which requires particular attention in future decisions as a result of difficulties providing an
optimal activity level, considered normal. On the basis of such information is taken long-term
decisions such as those related to investments that result in changes in production capacity. But as
problems for short term decisions are different, and have the largest share, the information on
variable costs have the largest share of information about the costs of production that serve to
substantiate decisions.
Also as a method of analysis and operational information on the economic activities, which
enables operational decisions for short period, is the Direct-Costing method or variable cost
approach. This method is also based on dividing the costs of production and sales in variable and
fixed, which facilitates decision making due to the fact that make out more operative relations
between costs, prices and volume activity. Based on information supplied to it, management can
easily solve some fundamental problems for decisions such as the unit cost of production (of course
only form of variable costs), total fixed costs, the products to be manufactured to achieve a more
profitable variety, quantity of products to be sold to achieve a profit, production volume to be made
to maintain the same level of profit if the selling price should be decreased or the selling expenses
should be increased, the amount with which the profit increase by dropping the unprofitable
products and customers, the case when the management can accept a sales at a price below the
variable cost. Also, based on information provided by this method, the management knows how to
increase production volume to meet a certain increase in the number of employees, a situation that
can produce a product whose sale price does not cover the costs (i.e. when the sale of unprofitable
products contribute to the highly profitable sale items), boosting profits at the expense of lower sales
of those products whose contribution to cover fixed costs is low, boosting profits at the expense of
production and sale of products whose retail price is greater than unit variable cost, even if the total
cost is greater than or equal to him to cover all fixed costs, such sales should be as wide and as the
Calin Oprea 181
need to increase the overall volume of sales to make a number of products unprofitable to profitable
products, which are products and markets that carry the highest profit, etc.
Of course, in the current calculations of costs prevailing in our country, involving, in general, a
total cost (full), this method does not finds application, since it determines only a partial cost that
would distort the analysis results and could not be used as a basis for determining the selling price
and fixed costs are not demarcated in time to the production activity that has given rise mostly, but
depending on the activity of selling. Some corrective actions such as the distribution of fixed costs in
proportion to the variable ones, or gross profit contribution, this method could lead to a full cost and
then it would serve both the production cost calculation and the determining the final results and
analysis by product and by product types, thus providing the management information base on which
can take decisions to ensure maximum return on entire business.
Given the constancy of variable costs per unit of product and fixed costs over time and to a
certain volume of activity, this method can be applied to business forecasting and management,
enabling the calculation of the unit cost, total variable and fixed costs, profits and profitability, etc.
corresponding to the workload of the future periods.
Direct-costing method provides additional information if one apply within the business
departments, sites or activity centers expenditure (cost) in combination with standard cost method,
i.e. following a series of separate products costs and using standard costs and flexible cost budgets,
which enables the detailed analysis of deviations on places, types, causes and responsibilities.
Due to mechanization and automation of production processes, information about the costs of
maintenance and operation of equipment, those on intensive and extensive use of surface capacity
and production, on costs during breaks, on the profitability of each machine or production center, is
becoming increasingly necessary for management. All this information is obtained by the
management by applying the MHR method (Machine-Hour Rate). By the information provided, this
method allows the exercise of operational control over the use of production capacity not only on the
whole company, but on each division, group of machines (production facility) and even on each
machine, which reinforces the responsibility of employees to efficient use of each machine or
machine group. This method also provides information about the deviations of the actual material
expenditure from the standard ones and the end of the period provides information about the
deviations of actual expenditure from the standard ones of the production centers as places of
expenditure, on types of costs and causes, which contributes to strengthening the responsibility of
employees.
Decisions for the rational use of materials and financial resources and cost optimization are
facilitated by PERT-COST method. This method is both providing management information about
the forecast lead times, production costs, unit cost of a particular goal (product, work, service) and an
operative method by which to determine and pursue infringements on time and phase. By the
continual updating of projections based on actual data, replacing original data with the real objectives
during the execution, the PERT-COST method gives management the opportunity to continuously
monitor the developments and to intervene with corrective measures when there are disturbances and
deviations the original provisions. So, it is a way to provision and control of execution time and cost.
All these methods presented here can be adopted only as regards their nature and their
greater power of operational analysis and information; the fact that their technique can not give a
full charge (in full) which must incorporate all actual expenses requires some improvements that
are to be implemented successfully.
Improvements of the costing methods is necessary because in terms of todays technical
progress, when most production costs are direct costs and the share of direct and indirect costs is
changing with a bias for the direct. In such circumstances, information on the nomenclature and
share of the items or items of expenditure in the cost structure of production is of key importance
for managerial work, not only for understanding the directions in which it should act mainly to
detect and mobilize internal reserves, continuous and systematic reduction of costs and, on the
basis of economic efficiency but also to know the accurate cost of production. The latter is
necessary to achieve, whereas, as indirect costs have a higher share in total production costs, the
production cost is less accurate and therefore in such cases, management needs to know the
costing methods and the criteria for allocating indirect costs to be taken to determine the actual
cost of products as much as possible. This is required, especially since the conditions of technical
progress creates the possibility of adopting operational costing methods such as standard cost
method, the direct-costing method, PERT-COST method, MHR method, ABC method, etc., and
criteria for allocating indirect costs in product cost such as the number of machines, operating
hours of machines (given that the largest share of indirect costs is due to machinery maintenance
and operation costs), differential allocation criteria on each item of expenditure, etc.
We appreciate that from this point of view, the standard cost method in standard single cost
variant is the best method for costing because it allows calculation with efficiency of the costs of
deviations from the pre-effective costs and therefore the usage of the exception management method,
cost analysis for determining subtasks costs, inspection of the budget and the separation of variable
and fixed costs in order to determine the stiffness of the company, as well as it provide other
indicators for the management by the direct-costing method, such as yield or equilibrium point
threshold, the threshold for optimal activity or optimal point, coverage factor, safety factor and
period etc.
The information given by the value analysis method are very important for the companys
management, which aims to identify unnecessary costs, which have no influence on function,
quality or service life of products. Based on information provided by this method, it can be
determined an optimal ratio between the usage value, product function and manufacturing costs.
This allows the company to achieve high profitability, especially the reduction in production costs
and increase product quality and their functions that make them competitive on the market, even if
the selling price increases.
This method seeks to optimize production costs from product design phase, based on
thorough analysis and provide technical and economic solutions to manufacturing processes of
each product under conditions that ensure minimum costs. The cost of the product should be
optimal variant of the reunion of information on the costs of design, those with the consumption of
materials and workmanship and to those caused by manufacturing technology, under the optimal
performance of its functions and usefulness to consumers end.
So, the basis of the value analysis method is information on production costs. Therefore, the
basic source for providing information necessary to decide on production costs is management
accounting and cost calculation and, therefore, improving existing costing methods and careful
study of the possibilities of adopting new methods or elements of these are issues that need to stay
permanently in the management's attention.
Based on information on production costs one can take decisions about the price of products
on ensuring economic efficiency of activity centers and on the organization and conduct of the
production process. Therefore, information on production costs are strictly necessary elements for
management work because it provides control based for economic activities, and on their basis the
decisions for future work can be achieved and provides a control method of decisions.
To achieve all these objectives, relevant information must meet several requirements: to be
of sufficient quality, real, accurate and contain data strictly necessary, to be operational, i.e. to
reach the soon as possible, moving through the direct channels, to prove timely opportunity.
Given the nature of expenses to does not identify on the product (CIFU, CGS, GBC), it
means that never information about the cost of production will be absolutely accurate, but they
must be as close as possible to reality to serve in good condition to making the decision.
Calin Oprea 183
As regards their contents, information on production costs must contain exactly the data strictly
necessary for deciding a particular issue, both in relation to actual costs and expenses in connection with
standard total expenditure, on items and articles on places of expenditure, on products, etc.
Only under such conditions may be optimal decisions adopted - whether on short or long
term - that contribute to raising economic efficiency, as incorrect information, insufficient or late,
is tantamount to lack of information, whose effects are most negative for decision making activity
and, therefore, for enterprise efficiency.
It can be shown therefore that the multiple implications that knowledge of information have on
production costs in the management of economic units should increase to improve the economic
information system of enterprise management and accounting so that its main source of data.
From the results presented it results that the managerial accounting contributes to providing
information regarding the composition of costs and outcomes, which is of particular interest to
managers. To achieve these goals is important to obtain and use operative information to enable
decisions scientifically. Obtaining this information requires considerable financial efforts to create
its own economic and development information systems, characterized by resilience, flexibility,
precision and efficiency in which an important place is occupied by general accounting and
managerial accounting mainly.
Managerial accounting information are confidential and are for internal use of the managers
at different levels of economic organization. Only with such information is possible to take timely
decisions for all types of unit to allow adaptability to competitive market conditions, to counter the
disruptive exogenous and endogenous factors of each economic unit. To know the cost and
profitability it must penetrate within the economic entity making use of managerial accounting.
The need of information is fully supported by the developed market economy countries, where the
provision of confidential information on costs and outcomes is the main attribute and stated
purpose of managerial accounting.
So, the management work in contemporary stage of scientific and technical progress is
inconceivable without comprehensive information, timely and accurate, that is the rationale
underlying the decision. Both theory and practice demonstrates that, regardless of the economic
system of which the company, its management, in order to achieve good results it has to know
accurately, completely and timely the cost of the production.
The cost of the production is therefore of vital information by business entities in any industry.
The management by costs serves for modeling the entity's business processes in all its
phases, from purchasing activity and ending with the sale and collection of product value.
Modern enterprise requires continuous knowledge of production expenses and on this basis,
the cost of production. Thus, it can realize the economic efficiency of its work in order to
determine the responsibilities and grant on a fair basis of material incentives to the employees.
Measures taken on line of improving national economic management, organization of
production and work in industrial enterprises, require a substantial improvement in the calculation,
record and analyze of production costs. This is because the cost is a synthetic indicator of the most
important of the economic information system of enterprise seeking attainment of the principles of
economic management. Information about the production costs show how material and financial
resources of the enterprise are managed at every stage and operation of the technological process,
at each expense or cost center, within each business or activities for each product, work or service
which can be obtained in this activity, shows the conditions for the conduct of all activities of
production and sale of the company. Therefore, the major goal of collecting, processing,
transmission and systematic analysis of information regarding the level of production costs is the
pursuit of economic efficiency of production as a result of the organization and management of
this business and ultimately as a result of how it performs its duties as part of each employee.
However, information about the size of the cost of production is of great importance to the
management of the company because it offers the possibility to know how much of the product
value is the value of inputs consumed in producing and selling the product and how much is the
new value created.
Strict determination of the different kinds of expenses necessarily requires the application of
the appropriate methods and techniques of accounting and costing, able to provide information
necessary to monitor the process, "on the fly" and the operative deviations from standard costs;
based on the analysis of the causes that led to those violations, the management of the company
can adopt the most appropriate decisions on the future of business. The effectiveness of these
methods depends also the efficiency with which they provide information needed by the
management to take timely decisions.
That is why a different direction to improve the managerial accounting and cost calculation
is to move away from the monthly calculation of final cost carriers, which requires a large amount
of work. This operation will be performed at longer intervals of time, quarterly or annually, for
calculation of expenditure on places of work or cost centers. This lead to the strengthening of the
responsability for expenditure and hence the efficiency of the business.
Since those costs are reflected throughout the enterprise, managerial accounting should be
seen as a basic management information system. The importance of managerial accounting for
each level lies in the fact that:
managerial accounting is the only way to explain the effectiveness of economic and
reaching or departing from the purpose;
the information provided by managerial accounting is management information for all
costs generating sites;
liability for the level of the costs regards all the hierarchical levels of management within
the enterprise;
each manager is responsible for the costs of the department which he leads.
The production cost is the most synthetic indicator of business activity characterization,
which is why the permanent control of costs can track the quality level of the activity. Without
permanent monitoring of costs it is not possible to ensure a rational management of the company.
Control on costs, constitute a central problem of management for observing the management of
materials and use of means of employment and business efficiency. This inspection is based on
managerial accounting, the only one able to provide all the necessary knowledge of the costs,
deviations from standard costs and the causes which generated them. It is clearly seen how the
information relating the costs are the basis of the business control.
With modern management of the enterprise the managerial accounting information is taken
into account in the analysis and control of the activity.
Thus, in the stage of production scheduling based on information provided by the calculation of
costs the measures and the limits under the production costs will have to evolve are established. During
the course of the production process the cost items are collected by some criteria, and periodically - or
simultaneously - there is actual calculation of the cost of production. For knowledge or deviations from
budgeted costs, per seat, influence factors and responsibilities are carried out comparative calculations
of deviations. The results of the deviation analysis serve as a basis for substantiating the budgeted or
standard costs for the next period. This method of tracking, analysis and production control is part of a
cyclic circuit based on information provided by managerial accounting, known in literature as cyclic
control specifically for cost management, control that is exercised:
before the occurrence of costs, namely cost budgeting phase;
concurrently with the development of costs, by pursuing usingit advanced accounting
methods and calculation;
after developing the costs based on effective calculation, performed using the methods of
calculation.
Of these, the most important and effective cost control is performed before the onset of it
and the least efficient, cost control after emergence, which can influence not last. It remains
Calin Oprea 185
necessary both for showing weaknesses and take necessary measures to eliminate them, and to
consider the budgeting of the production costs of next periods. Hence as the cyclic control ends
with no follow-up cycle of production, but it is resumed in the next cycle. Thus, in Romanian
manufacturing industry the business cycle in terms of production cost control is generally a period
of a month. In the cycle set, each manager, regardless of the hierarchical stage, is responsible for
monitoring, control and adjust, based on information on costs, of the business sector or department
within its responsibility.

Conlusions
Located at the enterprise level, and thus improve the economic information system of record
production costs and cost calculation is necessary since the enlargement of functional autonomy is
accompanied by the creation of conditions to exercise a higher level management functions.
Managerial accounting should not be viewed as an end in itself but as an important source
for providing information related to costs, and act decisively to ensure a modern business
leadership.
Hence, in the economic information system a central place is occupied by the information related
to costs. Given this role, managerial accounting has become an important issue in an enterprise.
Regardless of the costing method used, in order to provide all necessary information
decision system, a special attention should be paid to a more rational organization of the
collection, storage, processing and transmitting of the information to all levels of decision.
Computing techniques has produced major changes in how to do these activities contributing to
achieving an effective system of cost control.
The cost information as part of the economic information system comprises a set of
information from the cost and means of collecting, storing, processing and transmitting them to the
decision-making system.
The process of data collection is particularly important to obtain quality information. To achieve
rapid and accurate collection of data it is necessary to perform it at the places generating the costs.
Information on consumption factors are obtained by processing data on costs and pragmatic
analyzing of the results. Information on costs of production must be made available to decision-
making system as soon as possible, accurate and with real economic significance. To avoid
unsignificant information to block channels of information and hinder the work of the leadership
they should filtered. For this purpose, for each place of decision, his hierarchical level, the
importance of items or cost categories considered representative, and the degree of variation in the
level of costs of some products specifically pursued are envisaged.

References

Clin, O. Crstea, Gh. (2003), Contabilitatea de gestiune i calculaia costurilor, Ed.
Genicod Bucureti.
Clin, O. et al.(2005), Contabilitatea de gestiune, Ed. Tribuna Economic, Bucureti.
Clin, O. Man, M., Nedelcu, M.V., Contabilitate managerial,(2008), Ed. Didactic i
Pedagogic, Bucureti.
Clin, O., Clin, F.C., Contabilitate managerial,(2007), Ed. Tribuna Economic, Bucureti.
Cristea, H., (1997), Contabilitatea i calculaia costurilor n conducerea ntreprinderii,
Timioara.
Dumbrav, P., Pop, A., (1997), Contabilitatea de gestiune n industrie, Ed. Intelcredo, Deva.
Epuran, M. et all., (1999), Contabilitatea de gestiune, Editura de Vest, Timioara.
Olaru, V.C.,(1977), Costul i calculaia costurilor, Bucureti.

CHALLENGES OF INCREASING THE ECONOMIC AND SOCIAL
RELEVANCE OF ROMANIAN R&D AND INNOVATION.
Steliana SANDU*
Irina ANGHEL
Abstract
The topic of this paper is of special importance in the current context, when Romania has to
cope not only with the effects of the economic and financial crisis but also with the EU Lisbon
Agenda 2020 challenges, presented by the European Commission on the 3rd of March 2010 and
recently adopted by heads of state and government leaders. Improving research-development and
innovation activities is a central issue in reaching the Agenda 2020 objectives. The present
situation is different from the one ten years ago when the previous Lisbon Strategy 2010 was
launched. This new global landscape is to try not only the 2020 Europe Strategy, with its central
point research-development and innovation but also the functioning of the economy in various
member states, including Romania. Therefore, it is a dire need nowadays that the research,
development and innovation activities at all levels be understood as instruments able to design
solutions to economic and social challenges, even for recovery the economic growth. Based on the
studying a vast specialized literature, the present paper asserts that the congruence between
scientific activitys results and their ability to specifically address the needs of the society it serves,
depends on various factors concerning the scientific knowledge providers, knowledge potential
users, knowledge infrastructure and environment. The purpose of this paper is to analyse and
assess how challenges related to the provision of inputs for research activities are addressed by
the national research system, especially in the new condition of economic crisis. Its actors have to
ensure and justify that adequate financial and human resources are most appropriately mobilised
for an efficient R&D operational system, having in view the time horizon required until the effects
of the R&D investment become visible by increasing R&D system performance and, also, for
transferring the knowledge results into economy. Another aim of the paper is to analyse and assess
specific barriers faced the circulation of the financial flows and research results: weak relation
between university and industry, financing and barriers that must be overcome by business
sectors, low absorptive capacity of knowledge users etc. Depicting the current strengthens and
weaknesses of R&D mechanisms the authors intended to offer a scientific basis for decision-
makers answers to the major challenges of 2020 Lisbon Agenda.

Keywords: R&D financing, crisis an opportunity for innovation, academy-industry
relations, absorption capacity, responsibility of researchers.

Introduction
The Lisbon Strategy 2000 has had some positive effects on the EU economy but one of its main
targets, i.e. 3% of GDP spent on R&D are not being reached. Total R&D expenditure in the EU,
expressed as a percentage of GDP, only improved marginally (from 1.82% in 2000 to 1.9% in 2008).
*
Scientific Researcher 1
st
degree, Ph.D., Head of Economics of R&D Department in the Institute of
National Economy, Bucharest (e-mail: [email protected], [email protected]).

Research Assistant, Ph.D. candidate ,Economics of R&D Department in the Institute of National
Economy, Bucharest ( [email protected]) .
Steliana Sandu Irina Anghel 187
According to the evaluation documents
1
of the Lisbon Strategy's objective, the EU to
become a knowledge economy was centered on an ambitious research and innovation agenda. The
introduction of a 3% EU of GDP spending target for research and development (R&D) represented
a gradual change in the importance and visibility of research and innovation policy at the EU level.
There is evidence that many
Member States have prioritized public R&D investments.
The EUs key challenge remains making it more attractive for the private sector to invest in
R&D in Europe rather than in other parts of the world.
European Research Area represents a shift towards a more holistic policy approach,
promoting greater co-operation between Member States and industry, a stronger emphasis
on excellence and smart specialization and removal of obstacles to researchers mobility.
Lisbon Strategy included research policy (CREST
2
) began in 2001 to support the
implementation of the policy frameworks on researcher mobility and careers, and which gave rise
to the headline Lisbon target of spending 3% of EU GDP on research and development in 2002 at
the Barcelona European Council. A 2008 evaluation concluded that the open method of
coordination in research policy had proven to be a useful tool to support policy learning, but that it
had only given rise to a limited amount of policy coordination.
Starting from these insufficiencies of the 2000 Lisbon Strategy implementation in the field
of the R&D and innovation, the majority of the European Commission recommendations refer to
the speeding up of the improvement of the situation in this field. The objective of reaching 3% of
the GDP till the year 2020 ranks among the priority objectives, taking into account that a large
majority of member states (19) still considers investment in R&D and innovation as a key
challenge for the future. The achieving of this objective is quite difficult if we take into account
that, according to statistical data during the 2000-2008 period, the public spending in these fields
does not represent any actual increase in EU.
In this context, the challenge to reach the objective 3% of GDP to research and
development is all the more difficult for Romania. In 2008, the share of R&D in GDP was only
0.58% in comparison with the EU average of 1,9%. The participation of the private sector, which
ought to reach 2% of the GDP by 2020, is of only 0.13%, in decreasing compared to 2003, when it
represented 0.18 % of the GDP.

1. Challenge of increasing the RD expenditure to 3% of the GDP
1.1. The Current Economic-Financial Crisis-Opportunity or Risk for the financing
research, development and innovation?
When Joseph Schumpeter lectured on the economy at Harvard in the midst of the
depression, he would stride into the lecture hall, and divesting himself of his European cloak,
announce to the startled class in his Viennese accent, "Gentleman, you are worried about the
depression. You should not be. For capitalism, a depression is a good cold shower."
3
. The present
crisis can be also for the economic system like a cold shower, having positive effects, urging
companies to come up with the best solutions for the enhancement of efficiency, by means of
cutting waste and reshaping action directions.
1
European Commission: SEC(2010) 114 final, COMMISSION STAFF WORKING DOCUMENT, Lisbon
Strategy evaluation document, Brussels, 2.2.2010
2
Commite de la Recherche Scientifique et Technique
3
Robert Heilbroner : The Worldly Philosophers :The Lives, Times and Ideas of the Great Economic
Thinkers, Penguin 2000
Under crisis circumstances, is a natural tendency to cut company costs, but the distinction
between the types of expenditure that needs to be kept and the ones that can be done away with,
constitutes a great challenge for decision-makers
1
.
One of the victims most likely to occur when it comes to cutting expenses be they private or
public, especially in economic and financial crises, is the field of research and innovation.
The practice of countries that managed to overcome economic crises successfully has
proved that the stimulation of innovation is the most important condition to turn the crisis into
opportunity. When private companies cannot invest in innovation anymore, governs should do
this, having in view that innovation systems, with all its components (academic, industrial and
public), are strategic national assets that need to be protected as much as the financial or the
building sector.
The government of some EU countries have taken important measures in order to prevent
the knowledge base contraction. In Germany, the Mittelstand Innovation Program (ZIM)
2
, initially
designed only for small enterprises, was expanded, under the current crisis circumstances, to
December 31st, 2010, including enterprises of up to 1000 employees, supplementing the budget
with 900 million Euros. The European Commission has appreciated Germanys initiative,
considering that, even though research projects run a considerable degree of risk, it is necessary to
sustain a level of industrial research that would maintain competitiveness during crises.
The experts in the field
3
present a series of recommendations for the R&D&I policies so
that national economies may get out of the crisis as winners not as losers:
1. Reshaping of priorities and allotting investments in strategic fields of science and
technology, such as: nano-technologies, alternative energy, health, and life sciences;
2. Global thinking, that would encourage international investments in R&D programs,
especially of countries that are not profoundly affected by the crisis, such as China, the Golf
countries or Japan. These programs can become in the long run new platforms for complex
cooperation;
3. Focussing on public programs, with the view to maintain and develop the knowledge
basis of any economy, as a support for the launching of economic growth.
4. Supporting of performance, by means of the education system and the allotment of funds
for research, development and innovation according to this criterion.
Unfortunately, in Romania after an increasing of the public RD expenditures
starting with 2005, the share of RD in GDP is in a sharp decreasing since the last year if it
will continue, many of strategic objectives should be compromised.

1.2. Relation between public and private financing
The most sensitive aspect of the financing R&D in Romania is stimulating the private sector
to increase its contribution to total expenditures, taking into account the objective of raising its
contribution to 2% of the GDP in 2020 and the fact that during the 2000-2008 period, the weight
of the business sector significantly dropped, especially after 2003.
The issue of the measure in which the public support complement or substitute the private
R&D expenditures is fundamental for the elaboration of consistent policies. From a theoretical
point of view, there are pros for both hypotheses. Public support can constitute an incentive for
companies with a view to launching or increasing the resources designed for R&D, since public
1
Roger Smith : R&D in the Financial Crisis, in Research Technology Management, May-June 2009
2
EUROPEAN COMMISSION Brussels, 13.2.2009 C(2009) 1073 final, Subject: State aid No N 65/2009
Germany, Temporary budget increase and extension of the R&D&I-scheme
3
Sami Mashrom : Innovate out of the economic downturn, Business Time, 30 December 2008
subsidies cut marginal costs and raise the profitability of research and development projects
(complementarity effect). On the other hand, public support can reduce the private effort for this
field so as the company may substitute its own financing of projects by means of public funds
(substitution effect).
During the past decades, the literature
4
enriched with a series of studies that approach from
various points of view and using specific methodologies, the issue of the relation between public
and private financing of research and development and the impact of the subsidies over the
dynamics of the private sector investments in this field. As a consequence of the general positive
perception over the role of research and development in the economic growth, in all the developed
countries the public support is strongly promoted. Governments encouraged in various ways the
research and development activities from their own laboratories and institutes, financed university
research and the research of non-profit organizations, offering contracts to public and private
institutions and even grant subsidies to various private companies, being it directly or by means of
fiscal incentives.
Governments are, also, concerned with the transfer and dissemination of technologies and
the promotion of innovating companies, based on new technologies or products. Economic theory
5

has contributed to the gaining of consensus regarding the necessity of public support for the
private R&D, claiming that research and development activities are, generally, more difficult to
finance on a competitive market.
The need to correct the market failures that affect R&D field, the distinction between the
private benefits gained from the R&D activities (impossible to be acquired on the whole) and the
social activities, due to the nature as public goods of the R&D results, the appearance of the
dissemination effects as well as the sub-optimum level, from the social point of view, of the
private investments in R&D constitute powerful arguments, both in theory, as in practice, for the
necessity of the subsidies from the public sector, that would supplement the private resources for
the research and development field.
Even if the existence of market failures is accepted as a justification of the public
support granted to R&D, including for the private sector, it is necessary to prove that the
public R&D programs financed by public resources are efficient. That means that the
principle of additionality is obeyed, namely the public subsidies are transformed into
increases of in- house R&D resources but not to substitute the private expenditure, which
at any rate ought to have been made by the companies.
The public support granted to the research and development performed by the
business sector has to meet the criterion of economic and social efficiency, namely their
research results have technological, economic, social and environmental impact.
4
OECD, 2001, Changing Patterns of Public and Private Financing of R&D; TIP, (2004), Input Additionality
Effects of R&D Subsidies in Austria; Klette J., J. Moen, Z. Griliches, (2000) Do subsidies to commercial R&D
reduce market failures? Microeconomic evaluation studies, Research Policy, 29, p. 471-495; David P., B. Hall, A.
Toole ( 2000): Is public R&D a complement or substitute for private R&D? A review of the econometric evidence,
Research Policy, 29, pag. 497-529; European Commission, ProInno Europe, INNO Metrics, European Innovation
Scoreboard 2006, Comparative Analysis of Innovation Performance, p.8 i 12; European Commission, European
research Area: A More Research Intensive and Integrated European Research Area, Science, Technology and
Competitiveness, Key Figures report 2008/2009, p.22, p.33, p.63, p.71.
5
European Commission: ProInno Europe, INNO Metrics, European Innovation Scoreboard 2006,
Comparative Analysis of Innovation Performance, p.8 i 12; European Commission, European research Area: A
More Research Intensive and Integrated European Research Area, Science, Technology and Competitiveness, Key
Figures report 2008-2009, p.22, p.33, p.63, p.71.
If public funds are directed to projects that the company would have executed anyway, a
faulty allotment of public R&D resources occurs. Only a relation of complementarity between the
public and private financing that would legitimate the public intervention.
6

The majority of EU member states decided to focus on the consolidation of a portfolio
of mechanisms of maintaining the level of direct financing, simultaneously expanding and
perfecting fiscal incentives. In countries like Spain, Portugal and Great Britain, this
extension of fiscal incentives was mixed with a growth of direct subsidies. Even if there is
currently no convergence towards an optimum level of fiscal treatments concerning R&D in
EU countries, governments are acknowledging more and more the importance of fiscal
incentives as a complementary mechanism of direct allotments for R&D.
In November 2006, the European Commission, in the paper Towards a more effective use
of tax incentives in favor of R&D has underlined the necessity of new tax instruments that would
encourage investments in R&D as well as the substantial improvement of the existing ones. There
were defined the major components of a fiscal instruments, more efficient, stable and oriented to
the European research and development. Tax incentives are considered as an important part of the
general public effort that supports the research and development from the business sector in the
European Union member states.
These orientations are more important for Romania as the experience regarding tax
incentives granted to companies in order to supplement the R&D investment is reduced. The
identification and dissemination of good practices can improve the situation of private R&D
financing in Romania, even by efficiency of tax systems.
Is there a substitution or a complement effect of public funds over the private financing of
research and development in Romania? To what extent can the supplementing of public funds
have positive effects on the increase of R&D expenditures of the private sector? The answer to this
important question needs a clarification over the specific features of private RD sector in Romania.
In Romania, the largest number of research and development organizations (approximately
63 % in 2006, according to the data of INSEE) can be found exactly in the business sector ,
which features a very diversified structure, both from the organizational and the property rights
point of view. Financed in a centralized manner before 1989 and left without any financing
perspectives after 1990, at the mercy of an almost non-existent research and development market,
the large institutes chose, under the pressure of a vague legislation, organizational forms of the
most varied structures, some of which were straightforwardly strange. By means of joined
pressures on the government, the R&D unions as well as on the professional researchers societies,
in 1994-1995, there came a financing at survival level, from a Special Fund, constituted from the
compulsory legal prelevation of 1% of the turnover of private and public companies, under the
claim that the research results were addressed to them.
Actually the inclination to invest in research was non-existent during that period of profound
restructuring which led to the lack of desire to feed the special fund and therefore it was cancelled.
The dependency on public financing of the institutes from the business sector became
manifest during the following period as well, although competitive financing, on the basis of
programs, had as its consequence a relatively unimportant effect of behavioral additionality
Unfortunately, the manner of appointing evaluating committees, part of which were the
managers of the institutes who applied for financing, the majority being from institutes from the
6
In his presentation to the Berlin Conference in October 2007, Markus Koskenlinna, general manager of
Tekes mentioned that, according to the research results, one euro of public R&D funding increases private R&D
investments by 0.40-0.93 euros . In other words, the overall additionality of public R&D funding is 1.40-1.93 euros.
One euro adds 0.93 euro.One euro adds 0.62-0.86 euro in Finland, 0.40 euro in Austria, 0.70 euro in OECD
countries, 0.41 euro in Israel.
industrial sector, often transformed the evaluation in negotiation, according to vague and unclear
criteria, of the crumbling of public funds, allotted in extremely reduced amounts, to a multitude of
beneficiaries of public funds. The progressive improvement, both of competition financing on
national programs within the National Plan for Research, Development and Innovation, 1999-
2006, of the evaluation system, which established clearer and clearer criteria, more and more
focused on the scientific value of the project, on its applicability and the competence of the team
that sets up the research consortium, has done away with a series of drawbacks from the system of
R&D public funds allocation.
Nevertheless, due to the way in which the proposal of projects have been evaluated in the
framework of the National Plan for Research, Development and Innovation 1999-2006 programs,
the largest part of the public funds was allotted to the technological institutes from the business
sector, namely 60% in 2001 and 42 % in 2006 (INSEE, 2006).
Another important barrier in the way of research and development investment by the private
sector has been, also, the low level of innovation culture, un- sustained by a system of
technological transfer policy (institutes, transfer mechanisms, adequate legislation) or by risk
capital policy.
The Research Program of Excellency, launched in 2005, with the purpose of it being an
incentive for the growth of private research and development expenditure, failed to have visible
effects in this respect. At the same time, the lack, up until now, of serious tax incentives for the
investors in this field as well as of financial services and instruments that would diminish risks, as
well as their inability to make up for the financial and commercial risk, has led to a reduced level
of company research. The risk capital, in its incipient phase in Romania, had no visible
contribution to the stimulation of the research and development activity.
All this triggered a contradictory evolution of the GDP weight for the R&D expenditures of
the public and private sector in Romania. On the background of the increase of the R&D public
expenditure, one can notice a decrease of the weight of the business sector, especially after 2005,
when the total amount of R&D expenses represented 0.46% of the GDP in 2006, compared to
0.39% in 2001.
International or European institutions reports regarding Research-Development-Innovation
(R&D&I) either mention Romania as ranking last or last but one as far as performance is
concerned, or include it in the losing ground countries
7
.
The reconfiguration of the national R&D&I system in keeping with the international and
European requirements called for substantial efforts in order to transform the Romanian R&D&I
system into one whose institutions, mechanisms and instruments be compatible to international
and especially European standards. The current stage of Romanian R&D system is the result of
progressive improvements regarding institutional structure, mechanisms of financing, evaluating
and monitoring, through the refining of R&D policies and their adaptation to the requirements of
integration into the European Research Area.
The adoption of competitive financing, within the various R&D national programs that were
run up to the present, starting with Horizont 2000, has been a expression of a new vision in the
R&D funds allocation even if inevitable difficulties and sometimes unavoidable or avoidable
errors have arisen. As a result of the extremely small amount of funds as compared to the
demands, it was difficult for the evaluators, also involved in projects themselves, to select out of
the thousands of project proposals applied within the national R&D programs the ones that would
be given financing priority.
7
European Commission, trend Chart, Innovation Policy in Europe, European Trend Chart on Innovation,
European Innovation Scoreboard 2005, Comparative Analysis of Innovation Performance, p10.
The changes that occurred after 2005, with the set uo of the Excellence Research Program,
have considerably reduced the tension between the R&D resources and the needs for funds.
According to official statistics, the R&D investments grew significantly from 0.38% in the GDP in
2002 to 0.41% in 2005, 0.46 % in 2006, 0.53 % in 2007 and 0.59 in 2008. However, there is still
much more to recover in order to reach the medium financing level of EU27.
A special challenge for Romania is reaching the innovation performance of the EU average
level. It could be encouraging to mention the notice of European evaluators regarding the
dynamics of the indicators that make up the Summary Innovation Index, which contributed to the
increase of its value from 0.209 in 2004 to 0.277 in 2008
8
.
During the past years however, Romania has lagged in the cluster of the catching-up
countries from the innovation performances point of view. If the situation should not be changed in
the future, especially concerning certain indicators where Romania ranks among the last (for instance
publications per one million inhabitants or demands for licences per one million inhabitants)
then it would be possible that European evaluators estimations regarding the number of years that
Romania needs to reach the average of European performances to come true, that is 22 years or
more
9
.
Innovation is also a major component of competitiveness. The Global Competitiveness Indicator,
annually published by the World Economic Forum, offers a general image on the place of innovation
with a view to increase competitiveness. If in the 2004-2005 report, Romania was mentioned as one of
the countries that took a spectacular step in 2004, going from ranking 78 to 56 in the countries top
according to the Global Innovation Indicator
10
, the latest 2009 Report
11
, mention Romania on the 64
position, with a less favourable position concerning the Innovation indicator, namely ranking 75. Sub-
indicators regarding the innovation capacity and the availability of the workforce (scientists and
engineers) necessary to innovation activity make it rank more favourably (64 and 56), but the quality
of research institutes and the cooperation between universities and the industry are the most
important weaknesses of the system (ranking 82 and respectively 73).
In the hierarchy of countries according to the type of economic competitiveness, Romania is
included in the group of countries undergoing the transition from the efficiency driven stage to
the innovation driven one. In our opinion it is of special importance that duration of this
transition towards the group of innovation competitive countries to be as short as possible.
Beyond the responsibility of political decision-makers to raise the budgetary allotment for
the R&D&I field which is totally unsatisfying for 2009 and 2010, or to pass incentive legislation
for private investment in the field, beyond the responsibility of managers of institutes, research
laboratories or university research centres for the efficient management of funds and the
stimulation of researchers, there are aspects that pertain to the raising of awareness of each
researcher with a view to raise the performance of the R&D&I system.
Even if the majority of studies
12
referring to the scientists responsibility mostly deal with
ethical and social issues, with the concern to avoid the noxious effects of the implementation of the
8
ProInnoEurope, INNOMETRICS, European Innovation Scoreboard 2008.Comparative Analysis of
Innovation performance, January 2009,p.58.
9
See : ProInnoEurope, INNOMETRICS, European Innovation Scoreboard 2007. Comparative Analysis of
Innovation performance, ; Steliana Sandu, Cristian Paun, The Evaluation of the Possibilities to Recuperate the
Discrepancies between Romania and the EU in the R&D&I Field, Working Papers Series, no.19/ 2008,The
Romanian Academy
10
2005 World Economic Forum: The Global Competitiveness Report 2004-2005, Executive Summary, pdf.
Version, p.18.
11
2009 World Economic Forum: The Global Competitiveness Report 2009-2010, p267
12
European Commission: Responsible Science at the heart of policy making in : Science and Society.
Action Plan, Brussels, 2002, p.21; Michael C.Loui: Ethics and Social Responsibility for Scientists and Engineers
in Friday Forum, University YMCA, Illinois, February 2009
research results into the society and the economy, with scientific rigor and cautiousness in the
collection and usage of data and information, the individual responsibility is very important for
increasing the scientific prestige of the R&D field embraced by each researcher.
As highlighted by Janez Potocnic, the European Commissioner for Science and Research
13

the opportunities offered by the research field also imply responsibility and obligation while
ethics is a vital part of the research, from draft to publishing. The turning of research results into
publications in international recognised journal or patents- one of the weak points of the Romanian
R&D&I performance system- must become a personal concern, having in view, also, the higher
demands regarding the periodical evaluation of researchers and professors.
Statistical data regarding the evolution of the demands for invention patents, as well as for
granted and published patents, reveal an unfavourable situation. According to the Romanian
Statistical Yearbook for 2010, the published and granted patents dropped from 876 in 2003 to 489
in 2008. The demands for submitted invention patents dropped from 1046 in 2003 to 1031 in 2008.
Despite of these, only 230 come from research institutes and 178 from universities, individuals
being the ones the most concerned with the patenting activity (466)
14

Another major challenge is increasing the capacity of R&D&I European funds absorption,
especially from Framework- Program 7. The increasing the absorption rate could supplement the
current insufficient R&D&I investments. According to the European Commission data referring to
the Framework Programme 6, the success rate from the point of view of the number of submitted
projects is of 11.5%. As to the financing success rate, the figures are even smaller: 7.75%. If we
compare it to the Romanian contribution to the FP 6 during the 2003-2005 period, there results a
recovery rate of 66% of total funds. However, these amounts also take into account the support
received by Romania by means of the PHARE program, which covers half of the Romanian
contribution to FP 6. Without this money, only a third of the funds paid from the state budget
would have been recovered.
The rate of success of Romanias participants in FP7 is only 14.18% compared to 15.98%
Bulgaria, 23.20 % France, 15.42 % Greece, 17.94 % Poland, 18.19% Portugal, 18.74 % Hungary
and 21.59% EU.

2. Strengthening research - industry relations and increasing the absorption
capacity of research results
A critical problem for Romania is the still weak cooperation between the different types of
research institutes and the industry. Public instruments seem insufficient to enhance the
collaboration between the research sector and industry. At present, the main cooperation
framework between research and the productive sector consists of the national RDI programmes
and direct orders (RDI procurement). The legal framework and the financial instruments to
stimulate research activity and the application of research results in the economy (i.e. risk capital
funds for high-tech start-ups, and spin-offs) are weak, as are tax incentives to foster innovation
activities in enterprises. There is a strong need for a friendly environment (legal, institutional) with
respect to innovation in the private sector and for a coherent and attractive package of incentives
for clustering and networking
15
.
13
European Commission: Ethics for researchers, Facilitates research excellence in FP7, 2007, p.5
14
The National Institute for Statistics, The Statistical Yearbook , Romania 2010, p.54.
15
Sandu S., Zaman Gh,Gheorghiu R, Modoran C (2009): JRC Scientific and technical Reports, ERAWTCH
Coountruy Report 2008, An assessment of research system and policies, ROMANIA, JRC-European Commision,
IPTS, EUR 23766EN/2, 2009
R&D projects achieved within national programmes exhibit a serious weakness in the
exploitability of results. This is partially due to the fact that the projects are not sufficiently
market-oriented, but also to a lack of consistent ex-post evaluation and monitoring of research
results, which reduces the incentives for researchers to produce high quality, exploitable research
outcomes. The intensity of patents, as one of the central indicators of the quality of knowledge
production, is at a very low level in Romania, representing only about one percent of the EU
average patents registered with both EPO and USPTO. Romania also ranks low among EU
countries regarding the number of publications.
The technology-transfer and innovation infrastructure, namely the organisations specialised
in the dissemination, transfer and valorisation of R&D results is still in its early development
stages. The future development and consolidation of TTI infrastructure by the new specialised
programmes might ensure a favourable framework to strengthen the partnership between
enterprises, universities and R&D institution.
The focus on R&D mechanisms to stimulate an increase in the quality of human resources
and of the research results, on intensification of knowledge transfer through closer relations
between academy and industry are an important concern for different government bodies, NGOs
and R&D institutes. The new instruments of financing, put in place since 2005 and improved with
the new National Research, Development and Innovation Strategy and Plan 2007-2013, allow
access of all R&D system actors to public funds, promote multi-annual funding and stimulate
collaborative and multidisciplinary research and co-funding from a variety of funding sources.
Despite these good developments, the R&D system is still confronted with serious
weaknesses regarding its performance and the governance of research activity. While the
public financing system is gradually being transformed into a competitive one, the dynamics
of business R&D funding are not positive. The contribution of the business sector to R&D
financing has decreased starting in 2004 from 0.18 % of GDP to 0.14% in 2006, which is far
from reaching the recent Lisboan Agenda target till 2020. The recent R&D and Innovation
strategies and policy instruments aim to correct this situation. They include measures
focused on stimulating the role of the business sector in R&D by means of fiscal incentives
and venture capital for the development of innovative industries
16
.
The results of the research performed in universities and laboratories of public scientific
research, having a mainly fundamental and investigational nature, make up a research
input important for many economic sectors (pharmaceutical, biotechnologies, etc).
Universities generate scientific knowledge, often lacking specific orientation towards a
certain type of users, whose value can be considered as directly dependant on the capacity of the
potential receivers to evaluate, assimilate and turn them into account. That is why, regardless of
the external knowledge source, public or private, scientific or industrial, its absorption and
assimilation at the level of the company cannot be achieved without effort, expertise and pro-
active actions on the part of the researchers within the company.
A series of studies
17
have reached the conclusion that companies featuring a high level of
absorption capacity have developed more numerous and sustained relations with research institutes
than companies having a low absorption capacity. At the same time, their high absorption capacity
increases the ability of the company to turn into account new scientific knowledge, of basic nature.
16
Sandu S, Dinges M (2007):Impact of policies and public financing instruments on R&D investments, in
Romanian Journal of economics, nr.1/2007, p.47
17
Criscuolo P., Narula R (2002): A novel approach to national technological accumulation and absorptive
capacity: Aggregating Cohen and Levinthal,., MERIT, 2002; Narula R.(2004): Understanding absorptive capacities
in an innovation systems context: consequences for economic and employment growth, MERIT Infonomics
Research Memorandum series, cod 2004-00
The economic importance of the transfer of research results achieved in public research
institutes or universities into the economic sectors represents a topic of special significance,
especially under the circumstances of the current economic crisis.
The need for an ever more efficient cooperation between research and industry has made its
mark into the consciousness of the governments of the European countries as well as of the United
States throughout the ninth decade, being mirrored by the strategies and policies focusing on the
diversification and strengthening of these relations that radically altered the theoretical models and
enriched the practice from the field of innovation and technological transfer. The multitude of
books and articles written on this topic during the latest years reveal that the issue of the relations
between research and industry rose in the literature as a major topic
18
.
In the case of knowledge transfer from the research undertaken in universities and research
institutes, certain determinants of the receivers absorption capacity have supplementary: the
weight of higher education personnel, of the individuals functioning as an interface between the
source of scientific knowledge and the business organization, research mainly fundamental
having a ongoing, sustained nature, the existing specialized knowledge stock, similar to the ones
already absorbed, etc.
There also arises the need to set up a shared platform of internal and external research in
order to foster an efficient transfer of knowledge. This basis for shared scientific knowledge
supports researchers in the company to identify and turn into account the results of the research
undertaken in universities, allowing at the same time a more efficient communication process
between the personnel of the knowledge source and the staff of the receiver.
A company having an high intensity for the fundamental research there will be able to turn
into account, innovating, more efficient and promptly, the results of the scientific research from
universities or research institutes.
When knowledge is mainly of mutual nature it is of vital importance to achieve direct
interaction between the parties in order to establish an optimum transfer of knowledge. The more
intense the relations between companies and scientists, researchers from universities and research
units, the more capable a company will be to turn into account the results of public research in its
innovating activity.
In the specific context of the relation between the public sector and the industry there can be
noticed the need for the creation of certain support institutions structures that would facilitate the
link between knowledge creators and receivers, maintaining the absorption effort at the level of the
company. In this respect, numerous authors have underlined the importance of clusters, of
technological platforms, of transfer networks, of partnerships between universities and public
research units, on the one hand and potential users, business organizations, on the other hand.
18
Mansfield, E.(1991): Academic research and industrial innovation, in Research Policy, 20, 112;
Mansfield, E. (1995): Academic research underlying industrial innovations: Sources, characteristics, and financing,
in The Review of Economics and Statistics, nr. 77, p 5565; Mansfield, E.( 1998): Academic research and industrial
innovation: An update of empirical findings, in Research Policy, nr .26, p.77376; Mansfield, E. and Y. Lee (1996):
The modern university: Contributor to industrial innovation and recipient of industrial R&D support, in:Research
Policy, nr. 25, p 10471058; Grossman, J. H., P. P. Reid, and R. P. Morgan (2001): Contributions of academic
research to industrial performance in five sectors, in Journal of Technology Transfer nr.26, p. 143152; F. Narin,
and D. L. Deeds (2000): An analysis of the critical role of public science in innovation: the case of biotechnology, in
Research Policy,nr.29,p 18; Narin, F. and D. Olivastro (1992): Status report: Linkage between technology and
scienc, in. Research Policy, nr.21 p.237249, Henderson R.Jaffe A.and Tratjtenberg M (1998) : Universities as a
source of commercial technology: a detailed analysis of university patenting, 1956-1998, n Review of Economics
and Statistics, nr.80, p.119-127.

The literature in the field comes up with the notion of connectivity, arguing that it is the
most important ingredient in the making up of the absorption capacity. Internal research and
development also constitutes a mechanism that can stimulate connectivity and can also generate
the absorption capacity.
The authors identify three additional mechanisms for the stimulation of the connectivity as
follows: the nurturing of relations between companies and universities by means of research
sponsorship, cooperation with colleges and graduates recruitment; research consortiums
participation; teaming up with other companies that work on complementary research.
On the background of efforts on the part of developed countries governments with a view to
improve fundamental research after 1990, the relations between the industry and the research
organizations intensified, acquiring new characteristics, both theoretically and practically.
The new concepts of "strategic research" or "mission oriented" or " applied oriented" were
considered as much more relevant for the description of nature transformation that occurred in the
approach of the issue of innovation, where the borderline between fundamental and applied
research is getting more and more blurred while basic research is preferred stimulated in those
fields that have an applicability potential based on new principles or discoveries.
At present in Europe there are approximately 1,400 technological transfer units
19
. These
started out as industrial relations units that would encourage the trading of research results. In
time, many of these developed authorized personnel and services for the evaluation of inventions,
patenting, licensing, and the spin-off and start-up development and financing, but also for an active
approach of companies with a view to contracting based on arrangements. Based on a legislation
of the Bayh-Dole type, implemented in many countries, universities were called to practice a
policy of industrial property rights based on patenting and licensing, which led to the growth of the
number of technological transfer offices.
The direct transfer of knowledge from higher education and research into the industry can
be practically achieved in various ways, depending on a series of factors, among which the most
important are the degree of transferability of the research results and the capacity of the industrial
unit to absorb or use the new technologies.
It is generally considered that there are four possible knowledge transfer methods :
a) The direct transfer of the knowledge and technologies towards existing companies;
b) The offering by researchers of certain specialized services based on the know-how
generated in the academic environment. These sometimes lead to the appearance of small
companies that often (but not necessarily) live in symbiosis with universities;
c) "Spin offs, namely companies that spin off from an institute and have a well-defined
market profile as well as a good start-up potential. Some of these need an incubation period within
the university;
d) "Proto-companies", that are, generally, of high technological intensity, but which have
got insufficient knowledge regarding marketing, production or management.
Universities could develop R&D strategies that would transform the above-mentioned
centers in "excellency centers" on certain technology fields. Scientific parks can also constitute
natural environments for many R&D and educational activities and they can be transformed into
strategic instruments of universities for the increase of the degree of technological concentration of
the area where they are placed.
19
Hermans J and Castiaux A (2007) Knowledge Creation through University-Industry Collaborative
Research Projects inThe Electronic Journal of Knowledge Management Volume 5 Issue 1, pp 43 - 54, available
online at www.ejkm.com
The major benefits ensured by the incubators, technological transfer centers or industrial
relations units, that would be difficult to obtain under different circumstances, especially by the
new spin-off and start-up companies, are the following
20
:
a) Increasing of credibility;
b) Shortening of the training period;
c) Quicker solving of technological, organizational and financial problems;
d) Ensuring the access to an entrepreneurial network.
In many countries where there has been conducted a serious policy of development of all
means of mediating the relations between research and industry, they proved to be viable
sustaining mechanisms, by means of various methods, both of new companies, and of the ones
already existing. That is why, it is considered that these relations offer an alternative of economic
development stimulation by means of the implementation of new products and technologies
generated by the research and development activity and of the encouraging of the entrepreneurial
initiative that lies at the basis of the creation and development of small and medium innovating
enterprises.
In Romania, at the beginning of the 90s, there have been adopted some models from
developed European countries, that functioned well in these countries. In Romania, due to a
improper conjecture and bad management they stopped functioning one by one, only surviving
those that featured intelligent management, able to adapt to the specific local circumstances.
There is currently a concern of the National Agency for Scientific Research to intensify the
links between the research institutes and the industry, links that are more and more difficult to
establish under the circumstances of the current economic crisis. It ought to be taken into
consideration that, also during crisis situations, countries like Netherlands, Germany, France,
witnessed an economic revigoration of those regions where the scientific research results were
transferred onto spin- offs. Naturally, a vital condition for successful steps in this direction is for
scientific research to meet the needs of business organizations.

Conclusions
In this paper we provide an expert assessment of the convergence between the R&D
challenges of Lisbon Agenda 2010 and polices and instruments in place in Romania, analyzing
how the research system fulfils its fundamental role to create and develop excellent and useful
scientific and technological knowledge.
A response to economic and social demand has to balance two main challenges. On the one
hand, ensuring knowledge quality and excellence as the basis for scientific and technological
advance, requires considerable prior knowledge accumulation and specialisation as well as
openness to new scientific opportunities, which often emerge at the frontiers of scientific
disciplines. Quality assurance processes are mainly the task of scientific researchers due to the
expertise required, but it is also the subject of institutional rigidities.
On the other hand there is a high interest in producing new knowledge, which is useful for
economic and other problem solving purposes. The low R&D financing in the last two years, lack
20
Sandu S (2002): Transferul de cunostinte si tehnologie de la cercetare la industrie( The transfer of
knowledge and technology from research to industry , in the book : Inovare, competenta tehnologica si crestere
economica ( Innovation,technological competence and economic growth), Editura Expert, Bucuresti, p.168
of incentives for scientific actors to link their research to economic and societal demands, lead to a
corresponding weak exploitability challenge.
If "improving scientific research is part of the crisiss solutions- as recently the minister of
Education, Research, Youth and Sport stated, than a deep analysis of the strengths and weaknesses
of Romanian R&D system is a basic point for the future architecture of the R&D system. Despite
the good developments, the R&D system is still confronted with serious weaknesses regarding its
performance and the governance of research activity.
A first conclusion of the paper is that the policy makers did not mange well in order to
transform the crisis into an opportunity for the R&D. Instead of increasing the investment in this
field, as a solution for crisis recovery, in Romania, after an increasing of the public RD
expenditures starting with 2005, the share of RD in GDP is in a sharp decreasing since the last
year. If this trend will continue, many of strategic objectives derived from the Lisbon Agenda 2020
should be compromised.
The medium and long-term impact of research scarce financing would deepen the economic
crisis, as well as narrowing of the solutions for its solving. The deliberate reduction of the
competences level in the economy by marginalizing scientific activities is hostile to any feasible
strategy of economic recovery.
Contrary to the best practice of developed European countries and of experts opinions, in
Romania, due to specificity of R&D system, still past dependent, the public financing has not
an effect of complement the private funding but an effect of their substitution. Consequently,
starting with 2003 there is a decreasing trend of private R&D financing. While the public
financing system is gradually being transformed into a competitive one, the dynamics of
business R&D funding are not positive. The contribution of the business sector to R&D
financing has decreased starting with 2004 from 0.18 % of GDP to 0.13% in 2008, which is far
from reaching the Agenda Lisabona 2020.
The recent R&D and Innovation strategies and policy instruments aim to correct this
situation by including measures focused on stimulating the role of the business sector in R&D by
means of fiscal incentives and venture capital for the development of innovative industries.
Unfortunately, the effects are still less visible than expectations.
There also a need for avoiding the future waste of funds allotted to research by rethinking
the manner of evaluation of the granting projects, by selection those that respond to economic and
social priorities, imposing certain minimal quantitative and qualitative indicators of international
relevance for the project managers, improving the project management system and to handle more
transparently the public money allotted to research activity.
A critical problem for Romania is still weak cooperation between the different types of
research institutes and the industry. Public instruments seem insufficient to enhance the
collaboration between the researchers from universities, research institutes and industry, on one
hand and between researchers and users of output, on the other hand. At present, the main
cooperation framework between research and the productive sector consists of the national RDI
programmes and direct orders (RDI procurement). The legal framework and the financial
instruments to stimulate research activity and the application of research results in the economy
(i.e. risk capital funds for high-tech start-ups, and spin-offs, tax incentives to foster innovation
activities in enterprises) are weak.
There is a strong need for a friendly environment (legal, institutional) with respect to
innovation in the private sector and for a coherent and attractive package of incentives for
clustering and networking.
R&D projects realised within national programmes exhibit a serious weakness in the
exploitability of results. This is partially due to the fact that the projects are not sufficiently
market-oriented, but also to a lack of consistent ex-post evaluation and monitoring of research
results, which reduces the incentives for researchers to produce high quality, exploitable research
outcomes.
The intensity of patents, as one of the central indicators of the quality of knowledge
production, is at a very low level in Romania, representing only about one percent of the EU
average patents registered with both EPO and USPTO.
The technology-transfer and innovation infrastructure, namely the organisations specialised
in the dissemination, transfer and valorisation of R&D results is still in its early development
stages. The future development and consolidation of TTI infrastructure by the new specialised
programmes might ensure a favourable framework to strengthen the partnership between
enterprises, universities and R&D institutions. The strengthening of the absorption capacity of the
firms depends both, of the macro end micro economic factors. The quality of research production
and its relevance for the firms is important but the firm decision is crucial in transferring research
results to the industry.
Romania could more easily surpass the economic crisis if the R&D system should have
adequate programs and funds for stimulating that scientific research projects able to offer
innovating technologies and products, which would meet the market requirements.

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transfer of knowledge and technology from research to industry) in the book : Inovare,
competenta tehnologica si crestere economica (Innovation,technological competence and
economic growth), Editura Expert, Bucuresti, p.168
MODERNIZATION OF FINANCIAL RELATIONS BETWEEN PUBLIC
CENTRAL AND LOCAL AUTHORITIES
Emilia Cornelia STOICA*
Andrei Cristian STOICA**
Abstract
Financial relations improvement between public central authorities and public local
authorities represents, at the same time, a need for the modernize the state administration and a
challenge for the policy makers. In this respect, many governments successfully applied performed
structurals reforms, from their experiences we can highlight some principles and good practices
which can be used to rise the performance of the public financial management.These principles
and good practices refer to some aspects that deep the devolution, such as:
- emphasizing the public local authorities responsibilities regarding public expenditures;
- improvement local taxation and other own local revenues;
- better enforcement central local grants mechanisms;
- rising indebtedness capacity, including local public entities repayment capacity.
Among the improvement solutions to finance devoluted public services, financial grants
from central budgets and funds to local budgets have multiples forms, which present both
advantages and disadvantages, depending on economic and social conjuncture and keeping in
mind the needs of transparency in public administration.

Keywords: devolution, taxation, equilibrum, grant, indebtedness

Introduction
Achieving the economic development of a locality or region is a complex undertaking,
insofar as it is subject to the influence of factors beyond local, regional or national have no control.
The tools available to finance local development vary significantly from one jurisdiction to
another, even when they are designed for similar purposes. There are significant differences
between States as to how public funds are collected and distributed to local goverments - that is to
say regarding the amount of taxes collected or spent at the local level and the extent to which local
communities are dependent on transfers from higher levels of government.
The countries where the tax burden is higher tend to rely on public funding to support
economic development efforts made under the government management, while countries where
taxes are lower tend to assume that the private sector more involved in economic development.
Where local governments depend heavily on local taxes to fund their budgets, they are more
likely to consider the local economic development as a means of broadening their tax base to
finance services, asset and local amenities.
When the local government budget is supplied largely by the national administration, they
are more likely to see local economic development a remedy for social and spatial disparities. This
type of local development is often focused more on the activities of public and social sector - to
*
Nicolae Titulescu University, Bucarest, [email protected]
**
Public Finance Ministry, Bucarest, [email protected]
help the unemployed find jobs and find new sources of entrepreneurship and employment. In this
case, the financing of economic development is primarily related to investments in infrastructure
to promote private investment, and often requires close relationships with higher levels of
government for funding.
Intergovernmental fiscal relations analysis
The analysis of the new financial relations between the levels of deliberativ and executiv
power varies from country to country. The internationally proposal differences between the means
of descentralization can be approached from two viewpoints: by comparision with the relevant
exemplary practices revealed by the studies undertaken by the international financial institutions-
first of all The World Bank, and also the prolonged experience of some european developed states
1

In terms of public services quality, the decentralized financial systems achieved statisticaly
best results, because the action of various factors, among which the most relevant are:
- participation of citizens in the act of decision, because of stability and political liberties
enjoyed by people of local communities;
- guide local authorities by act of government effectiveness, both in its legal, adminis-
trative and management capacities, including a very low phenomenon of corruption;
- the development of community from the social point of view, this assumption of human
resources performance improvement, with an equitable distribution of income;
- the realization of economic management orientated outward, together with the existence
of a of a genuine autonomy from the monetary state authority.
By analyzing the best practices of local government they are refering to some key issues:
- the responsibility of local public authorities regarding effective and efficient manager of
public expenditure;
- their own sources of income, taking into account, taking into account the restrictions and
tax incentives;
- mechanisms for financial transfer, mainly from central public authorities towards the
local one, by many responsibilities, which have been decentralized to achieve and / or distribute
the public services;
- debt capacity, which can measure the economic entity capacity, whether public or
private, to repay the loan and pay the costs (interest, commissions, etc..)
- their own benchmark entities involved. The benchmark refers generally to the
performance indicators, the creditworthiness of the entity in terms of financial stability to business
functionality, plus, with an impact at least as important, the restrictions introduced by the tax
environment and / or economically.
Of major importance are the responsibility assumed, first by the central government, on the
other side by the local one in public expenditure management:
- sharing duties in the public expenditure and taxation between different levels of public
authority represents a fundamental problem in a public administration that implements
decentralization as a key reform of the state;
- following the example of good practice on the transfer of responsibilities for public
services from central level to the local authority must take into account some benchmark, so as to
determine whether:
- volume of general transfers causes an easier management of business;
- such transfers favors economies of scale;
- public services must meet a minimum standards of performance;
1
Anwar Shah et Jeff Hunter, "A Simple Measure of Good Governance and Its Application to the Debate on
Appropriate Level of Fiscal decentralization", World Bank, Washington DC, 2007
Emilia Cornelia Stoica Andrei Cristian Stoica 203
- these transfers are accompanied by a new revenue-sharing of the public incomes;
- it is being taken into the account of local or regional community preferences.
- the central public authorities should be responsible for implementing / distribution of
public services that have targeted the entire population of the country, as follows:
- they are being addressed the whole population, as, for example, national defense;
- they are having national effect, as the monetary policy;
- it creates economies of scale, for example, infrastructure networks;
- it is aimed at income redistribution, such as the implementation of social assistance and
protection programs;
-etc.
- the local authorities must be responsabiles only for the public services whose aplicability
domain is limited to the teritory of the respectiv local communities, so that they can exercise
without limits the authority and, implicitly, to asume the responsibility for the quality and quantity
of the distributed service. The clear example are the preuniversitary invatamant, the health public
services, the local transport networks, the protection of the older persons etc.;
- local public authorities should be responsible only for public services whose scope of
applicability is limited to within the local community, so that they could freely exercise their
authority and thus to take responsibility for quality and service quality available. Telling examples
are those of undergraduate education, public health services, local transport networks, protection
of elderly, etc.
The main objective of local authorities in financial management is to achieve a balance
between spending responsibilities and ability to attract financial resources in order to reduce the
need for consolidated shipments
2
likely to introduce distortions.
If they can`t be avoided, however, transfers with the lowest negative impact on local autonomy
are unconditional transfers, in which the local authorities have the greatest power of decision.
Conceptually, the basic principles of fiscal transfers between local and central public
concern:
- equity between the territorial-administrative units, which must be treated according to the
same criteria during the approach of the transfers;
- neutrality, meaning that a local authority must not- be able to exercise influence on the
subsidy enjoyed by actions on local expenditures or the tax that she applies;
- simplicity of the transfer mechanism so as to be easily understood and applied;
- consolidated transfers predictability and flexibility, to accommodate cyclical economic and
social developments, ensuring also the possibility of elaboration of budgets and development plans
in the short to medium term;
- autonomy of local public authorities to set their own priorities and manage local public
services to meet the needs of the community;
- stimulate local authorities to conduct an effective financial management of decentralized
public services, without the result that the application of the transfer mechanism will penalize the
very communities that are well managed in financial terms;
- transparency in granting the transfer and use by the responsible authority for people to be
able to consider the effectiveness of community use of public funds in their interest.
You can notice some contradictions between the basic principles that apply to financial
relations between public authorities - for example, the principle of fairness tends to complicate the
2
Acording to the in place legislation (The Law nr. 200/2002 of the public finance, The Law nr. 273/2006 of
the local public finance etc.), by consolidated transfer is being understood the sums transfer between the public
budgets, from the state budget to the local budget.
mechanism of transfer beeing required, among other things, the regression statistical calculations,
which affects the simplicity of approach - but integration of all principles, in fact of the rules of
good practice in public government actions leads to a performance management of local and
central public authorities.
Regarding the fiscal relations between levels of government are emerging two kinds of
models:
- a type model where local government authorities receiving an average fiscal asieta
3
per
capita wich top the national average transfers funds to the authority which records asiete per capita
under the national average. This model is much disputed by rich communities, but that formula
makes an equity very close to perfection, especially since it does not involve additional financial
efforts from the central government;
- a group of models by which local authorities that show a asiet fiscal per capita under
national average receive a subsidy that provides full or equity, or a subsidy corresponding to a
certain percentage of the national average in order to reach that average
4
. This model meets most
of the interests of local communities, because the poor communities have the impression of
winning, the richest communities have the impression that they are not losing.
The need to spend is more difficult to define and administer than tax capacity, for various
reasons: to define a standard of equalization has serious problems, identify cost differentials from
input-output relationship is not easy; understanding the differences in service areas, between the
populations, and draw on local needs require the trial, and finally obtain the necessary data can
cause significant problems.
Regarding the problem of needs in terms of transfer costs, the designers have a choice
between the same two models - the first model in which the jurisdictions where costs are lower
accepted to transferre sommes to jurisdictions where costs are high and the model donor, as in the
case using the component of fiscal capacity. In each of these two models, there are various
possible alternatives, including the following:
- historical spending levels are the basis for calculations and this base is adjusted each year
using an appropriate index this index consisting of a set of factors such as population growth and
the average growth in spending in the provinces and territories;
adopt as standard the average expenditure per capita - this approach ensures that each sub-
national government has sufficient resources to meet the average spending levels, but it is of no
help when needs are greater than the average;
adopting an average expenditure per capita, weighted with a factor or an index - for
example, if in an entity, the lower density of population means higher costs, so in a given level, the
entities whose population density is less would benefit from additional grants;
adoption of uniform spending levels for municipalities grouped according to their
similarities - entities may be grouped according to size and population density, according to their
location, employment levels and others, and within each group, provided that each entity has
different needs and similar costs;
- a combination of the above three approaches - for example, group the municipalities with a set
of basic similarities, and provide an index of corrections to take into account some additional factors.
3
Asieta (the way to put the impt)-all the measureas that is being taken by the tax organs taxable related to
each subject, for the identification of the taxable object, the establishment of the level of the taxable mater and the
deternmination of the tax due to the states (Iulian Vcrel-coordonator, Finane Publice, Editura Didactic i
Pedagogic, Bucharest 1999
4
This model of local community financial balancing applies, for example, in Canada, where provinces
whose fiscal capacity is below average per capita is given a subsidy the from federal authorities that allows them to
achieve the average per capita.
Regarding the implementation of best practices related to financial transfer schemes, the
following aspects stand:
- it would be wise to adopt a gradual approach and begin by setting up a representative tax
system for a period of five years, then moving a representative system of expenditure;
- a system fully based on costs requires much effort, it is an exercise of significant
judgments, and requires a high degree of cooperation between the parties to find an effective
implementation;
- it is understood that a less ambitious approach as regards the expenditure side would be
desirable in the short term - one might use such general indicators of relative need or limit
equalization payments to poorer entities;
- it will probably be easier to get hold of data for measuring expenditure needs caused by
different sides, unless measuring expenditures arising from incremental costs - this requires a
different approach, namely that it must use available data to measure the needs of the demand side
and make common sense and practicality to assess cost differences;
- generated data and analysis that is made, which are somehow sub-products of detailed
spending plans, can be leveraged to achieve efficiencies in the public sector.
The transfer of responsibilities to local government must be accompanied by the resources
spent by the central government to the exercise of powers transferred. This principle was
introduced in the laws of local finances
5
, which provides that "any transfer of powers between the
state and local governments is accompanied by the allocation of resources equivalent to those
which were devoted to their exercise."
The principles of compensation
Financial compensation for expenses resulting from the transfer of powers enshrined in the
Laws of local public finances responds to a number of principles aimed at ensuring the neutrality
of such transfers, both on the state budget than that of local government beneficiaries.
The compensation is as follows:
- entirely: the resources transferred are equal to the expenditure incurred by the central
government under the powers transferred. All expenses, direct and indirect, related to the exercise
of powers transferred are taken into account;
- in the same time: any increase in charges resulting from the transfer of powers is
accompanied by a concomitant transfer of resources necessary to exercise these powers. Financial
compensation for transfer of competences is established in two stages, in strict compliance with
the principle of the simultaneous transfer of obligations and resources:
- from the Law of local public finances the transfer of competences, budgetary
appropriations are enrolled on a provisional basis to give local authorities the financial means to
exercise their new obligations;
- the amount of the right to compensation is finalized, it is making the necessary corrections,
also in tax laws, and in the laws in local public finance.
In many countries, local administrations and national public agencies are also key
financial partners in the local economic development. Another type of funding is for local
authorities to borrow to support investments in productive infrastructure of a local economy.
Borrowing capacity
In general, governments should borrow only for the purpose of making investments,
otherwise future generations will be restrained by the obligations of the benefits enjoyed by
previous generations. That said, there is a wide diversity of approaches to control by central
government the loans made by the subnational governments, for various reasons ranging from the
5
In Romania, Laws no.273/2006 regardind local public finances.
state of development of financial markets of a country to the other question which is whether there
are serious macroeconomic problems (eg., problems that may be linked to exchange rates,
management of foreign exchange reserves and others). In this regard, four gnrales approaches,
each with its advantages and disadvantages, is defined as follows:
- rely on market discipline - is the approach recommended by many developed contries
regarding provincial borrowing;
- cooperative approach in controlling debt - in the context of this approach, subnational
governments participate in the formulation of macroeconomic policies, including the establishment
of borrowing limits to be observed by sub-national entities;
- approaches with well known rules for the control strategies being adopted by subnational
governments - a number of countries, both unitary and federal, have adopted rules in their
constitutions or their laws, which contain, among other things, limits on debt levels or that specify
the objects of loans;
- direct controls on borrowing by subnational entities - these controls take many forms,
including the establishment of annual borrowing limits, permission to borrow a part and the
centralization of all loans with terms of surrender to subnational governments for purposes
approved.
The main conclusions on control of subnational government borrowing are:
- though attractive in principle, the option is to capitalize on market discipline is unlikely to
agree in many situations because one or even more of the conditions for its effective functioning
will be absent (eg. the existence of free and open markets, the availability of reliable data on the
outstanding debt of the borrower, the apparent lack of opportunities bailout in case of default, and
others);
- it is expected, according to the current global trend to devolution, there is a reduction of
administrative controls that are exercised on subnational borrowing in the domestic market;
- borrowing abroad by subnational governments should be strictly limited, inter alia,
macroeconomic considerations;
- all loans should be made solely for investment purposes;
- even in the context of approaches to matching rules, there is room for greater cooperation
from all levels of government regarding the issue of debt levels.
The reform of financial relations between governments requires institutional mechanisms
comparable for purposes of coordination, planning, budgeting and implementation between the
different .
Almost any system that is established on the basis of a consensus can work, insofar as those
who are concerned show goodwill, they will make the necessary efforts and demonstrate the
flexibility that fits. These conditions are more likely to be met, whether formal coordination
mechanisms are in place.
Similarly, any system of intergovernmental transfers should be explicit about who is
responsible for conducting audits, program evaluations and other mechanisms for monitoring the
performance of subnational governments. These functions are often performed by several
agencies, although efforts are coordinated, to ensure that their implementation is entrusted to a
single agency would improve overall efficiency.
The decentralization of responsibilities and the rationalization of intergovernmental transfers
should be accompanied by a strategy to strengthen the institutional capacity of subnational
governments. Central government (or associations of subnational governments) can identify training
needs, provide training programs, providing guidelines about management issues, establishing
twinning arrangements with more experienced entities, provide technical assistance and provide
operational tools for the needs of a range of functions, from managing staff to monitoring programs.
Conclusions
There is not "ideal path" or magic formula to apply to the establishment of financial
relations between levels of government. Economic principles and best practices on the
international scene can provide useful insights, but the political and historical factors may be
equally or more important for the establishment of financial relations. Accordingly, a highly
egalitarian approach to equalization, modeled on the first pattern can operate properly in
developed north european countries like Sweden, but they may well not be appropriate for a
federal state like Canada, in which regional differences are important.
Balancing expenditures, as opposed to the equalization of income, is an option that seems to
be controversial politically, for a variety of reasons, some indices are at best approximations of
what is to be measured, and the data are often outdated or are not available, the mathematical
aspect becomes complicated (eg. the use of regression analysis, statistics) and, more
fundamentally, the cost differences between different jurisdictions are sometimes difficult to
understand or explain, so that equalization of spending two features somewhat contradictory: on
the one hand, it is highly technical and yet, on the other hand, it is highly political. Given the
nature of the analysis - which is to allocate a specific amount of funds from a given number of
entities considered essential to the financial agreement, controversy still exists and is likely to be
even more serious in the contries where own fiscal sources of income are relatively modest. In
addition, one should consider the use of equalization to the extent that the principle of equity
spending supports a broad consensus.
A contentious aspect of any financial relationship between levels of government concern the
algorithm to determin the total amount to be transferred to subnational governments. Generally,
the central government fixes the amount in its budget process, but there are different ways, for
example, in the UK, the amount is set according to a set of factors which are made public, in
Denmark, it is done under a set of principles, with the support of a joint forum for the debate of the
issue, in Australia, the amount is determined at a Annual Premiers' Conference.
An important conclusion is needed to get out, namely that the size or scale of subnational
governments appears to be important. One of the benefits arising from expenditure equalization
schemes is the fact that countries are more accurate, albeit imperfect, factors that influence the cost
of services in the public sector. The number of people present in a particular jurisdiction and their
geographical dispersion also seem to be important factors. In the unitary countries, the trend seems
to have been to reduce the number of local governments, primarily for reasons of scale and
efficiency.
An important conclusion is needed to get out of the exemples from developed and
developing countries, namely that the size or scale of subnational governments appears to be
important. One of the benefits arising from expenditure equalization schemes is that countries are
more accurate, albeit imperfect, factors that influence the cost of services in the public sector. The
number of people present in a particular jurisdiction and their geographical dispersion also seem to
be important factors.
The public authorities involved in the strategic economic building should carry out research
on the experience in other entities regarding the funding mechanisms, particularly to determine
how we could adapt the most effective these mechanisms to the context of a relationship between
the central government and local authoritees:
- systems of performance indicators and comparative reporting methodologies;
- mechanisms for audit and other review mechanisms similar to a set of entities;
- common systems of accountability and financial reporting;
- mechanisms of action, eg. an ombudsman
6
.
As final conclusions, we can enunciate a few principles:
- the concept of "neutrality" should be central to any system of financial transfer, neutrality
is understood here in the sense that the recipient government should not be able to influence the
amount of subsidies it receives by groping for spending or tax decisions;
- any statement of principles should recognize that certain principles may be contradictory -
in particular, applying the "principle of fairness" seems to have the effect of removing the transfer
mechanism of the "principle of simplicity";
- the proper functioning of a financial agreement requires a commitment from all parties to
the ongoing management of this relationship, because of the ever-present possibility of conflict
between Aboriginal governments and federal governments and between Aboriginal governments
themselves , about the implementation of the compensation system.

References

Anwar Shah et Jeff Hunter, "A Simple Measure of Good Governance and Its Application to
the Debate on Appropriate Level of Fiscal decentralization", World Bank, Washington DC,
2007
C. Richard Rye and Bob Searle, Expenditure Needs: Institutions and Data , in Financing
Decentralized Expenditures
Teresa Ter-Minassian et Jon Craig, Control of Subnational Government Borrowing in
Fiscal Federalism in Theory and Practice , FMI, Washington
Iulian Vcrel-coordonator, Finane Publice, Editura Didactic i Pedagogic, Bucureti 2007
* * Les relations financires intergouvernementales: perspective internationale, LInstitut
sur la gouvernance, Ottawa, Ontario, Canada, 1998
* * Legea finanelor publice, nr.500/2002, cu modificrile i completrile ulterioare
* * Legea finanelor publice locale, nr.273/2006, cu modificrile i completrile ulterioare
* * http://www.wikipedia.org
6
An ombudsman is a person who acts as a trusted intermediary between an organization and some internal
or external constituency while representing the broad scope of constituent interests. The word 'Ombudsman' is based
on a Swedish word meaning 'Agent' (http://en.wikipedia.org)
POSITIVE AND NEGATIVE EFFECTS OF GLOBALIZATION
Alexandru OLTEANU
Madalina Antoaneta RADOI
Abstract
We still live in Europe, in one of the richest regions of the world. Most of us still have a well
paid and secure job. And yet social security is ensured for all of us, even for the less privileged
persons. These gains seem to be endangered by the growing competition from abroad, which
steals the productive potential and the jobs of the European economy. Has the pressure on the
European economy by means of the internationalization of the economy really intensified in as far
as it is claimed? Is it true that globalization has enhanced in recent years in such a dramatic way?
The analysis shows us that we should make some distinctions.

Keywords: The global market, international trade, interregional, economic location,
capital liberalization, global players, financial flows, direct investment exchange.

Introduction
Since the early '80s trade has developed a lot, increasing by approx. 7% per year. This
impressive growth is relative, if you consider historically the development of international trade
and the share of world export in the achievements of the global economy.
Since 1870 5% of world production has been exported. Only after 1960 the internationalization
of world trade has taken place and this made the connection with the level reached before the period
immediately preceding the First World War. It was an ongoing and difficult process, until world trade
increased and reached todays record levels. In recent years the share of the world export in the world
economy has increased by 15% (85% so, the biggest part of the global social product remains as
before on the national markets for domestic consumption).
An analysis of the countries shows that domestic markets have a much greater role for
national markets than it has been considered till now.
Japan's foreign trade is not more than 10% of the gross national product. The orientation
of the U.S. economy towards domestic markets is well known. Only maximum 10% of the U.S.
economic achievements go abroad. And, although it may arouse surprise, the European Union is
not less oriented towards its own market. The contribution of foreign trade to the gross domestic
product has a value of up to 10%.
As a result of a more attentive analysis, the figures of foreign trade become relative also
for Germany. With a share of more than 25%, the German economy is still relatively export-
oriented. But almost two thirds of the foreign trade is conducted on the European internal market,
in other words, interregionally. Thus the export in the extra-European countries is reduced up to
almost 10% of the domestic product.
In coming years, the volume of the world trade is likely to resume its trend. The conventions
within GATT, the Customs and General Conventions liberalized global trade in key areas. It is
expected that it will increase more than the global social product.
PhD. Professor, Dean of Faculty of Economic Sciences, Nicolae Titulescu University, Bucharest.
In future, interregional trade will grow more than the trade with countries outside the region,
because the markets within the regions have developed to an extent far greater than those between
the blocks. The European Union is the most advanced on the way to free interregional trade. Other
initiatives known as the North American Free Trade Association (NAFTA) - comprising the
U.S.A., Canada and Mexico, Asia-Pacific Economic Cooperation (APEC) - with 18 countries of
the Asian and Pacific areas (including USA and China) and MERCOSUR with Argentina, Brazil,
Paraguay and Uruguay, will form a conjoint market for a middle and long term. This forecast is
also valid for many other regional economic unions.

The lack of action of the states
Not only the World Bank believes that the globalization of the economy makes
"opportunities to make decisions increase in the case of individuals and businesses and decrease in
the case of politicians."
The alleged "Constraint of the global markets" seems to expose states to a ruthless economic
competition for the economic location. Governments are responsible for this situation. Because
they founded internationalization by liberalizing trade and capital and by encouraging the almighty
concerns, that may also exist on the world market.
Transnational firms cannot be judged if they behave according to the maximum increase of
earnings. This fully accords with the theory of national economy.
The problem is that these companies have no obligations to anyone and they can be
controlled with difficulty.
The management of transnational companies suggests that they work for the benefit of the
national states and invokes employees solidarity and state support for the common weal. And
they get it in many forms.
"Global Players" need free trade. It allows them to produce where it is cheaper and to sell
where they can obtain the highest prices. Thus, there is pressure on the economic sectors that can
not cope with international competition. Internationally, the state should skillfully handle the
situation in between widening free trade, in order to ensure exports, and a form of protectionism,
that protects the industries endangered by imports. On the national level it must act against the
disappearance of individual industries and mitigate the loss of jobs from a social point of view.
These constraints lead to subsidies in the sectors of agriculture, coal and steel, shipbuilding and
aviation. And the competition for foreign investments triggers expenses for the state. In order to
attract national and international capital, governments compete promising advances made by the
State to economy. They consist in the provision of facilities, special services in infrastructure, fast
approval procedures and reduced taxes. To these there are also added the capacity to recover, in
the ratio of 100 %, the costs of construction of corporate and income tax, an exemption for ten
years from the tax on land and minimal expenses of planning and production.
Referring to global competition, the economy tries to impose on governments the reduction
of taxes on business. It requires capital market and labor market deregulation to diminish costs -
such as the cancellation of the protection from layoffs or limiting employment contracts, and the
reduction of social protection measures, in order to cut side payroll expenses.
For its own interests, the economy handles even high-level politicians. State presidents or
prime ministers regularly travel abroad, being accompanied by an escort of managers, in order to
attract large contracts for their economy. And the French and the Americans consider this to be an
important field for foreign policy.
In the field of financial and monetary policy, the possibilities of action of the states are
severely limited by the expansion of the international financial markets. The national monetary
Alexandru Olteanu Madalina Antoaneta Radoi 211
policy becomes more difficult. Smaller and weaker national economies are already deprived of the
political-economic tool - which is called the financial and monetary policy.
Even if the states obey the constraint of the global market, they can not be sure of success in
the form of jobs and tax revenues. Businesses do not make promises for long-term jobs, invoking
the uncertainty of the medium and long term business. They avoid the profit taxes by transferring
profits to countries with low taxes or tax-free oases.

Free trade: a danger to prosperity and social justice?
Trade and the international division of labor have increased. At the same time, the gaps
between the rich and poor have widened.
The gap between the lower stratum and 20% of the upper layer of the world's population has
increased since 1960 more than two times from 1:30 to 1:61, the number of poor people has
increased since the 70s, and it has been emphasized since 2007, after the financial and economic
crisis, with several hundred million. Clean water, adequate nutrition, healthcare and school
education are missing for 1.3 billion people.
Unregulated free trade contributes to this misery. According to a Worldwatch Institute
research project, production for rich countries destroys the life of the poor.
And as regards the application of the decisions of the last GATT round, the experts on
development issues suspect that the situation regarding the food supply for the third world will be
worse. The continuation of the export of cheap food surpluses from the U.S. and the EU towards
developing countries causes the destruction of the local agriculture and increases the dependence
on foreign food suppliers.
Developing countries try to balance the negative consequences of free trade. They attract
foreign investments by means of favorable conditions of the economic location, such as low costs
for their work, low or nonexistent social and environmental standards. Industrialized countries
oppose this competition, lower production costs. They rationalize.
Both production in the countries where wages are low and the destruction of well-paid jobs,
result in loss of income for employees. But if the masses incomes decrease worldwide then the
demand also decreases. The danger of a recession, and of a global economic crisis, as that one in
the early 30s, can not be excluded at present anymore.
A free trade without order hides the danger of an international competition to reduce costs
and a destructive competition as regards the economic location. Thus mass welfare is endangered,
social security is broken and the state is in debt. For a long term businesses do not take advantage
of this either. They may earn something only as long as they can sell.
And the level of social security has been increasingly questioned. Businesses and employees
can not be further burdened by growing taxes and social charges. The conclusion is therefore that
we should save even more. This austerity policy is tightened by the agreements related to the
European monetary union. They require that States participating in the monetary union to have a
low inflation rate (1.5-2%) and to maintain the official deficit at a low level (3% of
GDP). However, the consequences of a recession provoked by an exaggerated policy focused on
saving and production costs reduction, represent a loss of wealth and a higher unemployment rate.
The dominant opinion is that the global market requires the elimination of rules and more
flexibility. The normal labor relationship is eliminated widely. More and more people are working
unprotected, often without social protection and without their consent, with a reduced term.
Accelerated globalization can enhance welfare on earth. For this, we must give up the
competition regarding lower production costs and the misunderstood competition concerning the
economic site/location. The dumping on wages, the environment and social protection endanger
the welfare attained by industrialized countries, hampers the improvement of living conditions in
developing countries and may even end up with an economic crisis. Therefore, the economic
policies of all the countries participating in international trade should seek to guide their national
economies and the global economy on the whole, on the road towards a prosperous development.

Conclusions

World trade and extra-economic interdependence of businesses have started after the Second
World War at a low level, but continuously increasing in the meantime. This trend has continued
in recent years, but has not increased in any case dramatically.
Trade and financial flows and the exchange of direct investments essentially represent the
triad of U.S.A., Japan and the European Union. And China comes immediately after them. Within
the regions mutual ties grow. For the European economies it is more appropriate to talk about
"Europeanization" rather than "globalization."
Within the triad of U.S.A., Japan and the European Union, completed by China, there began
a competition to lower the expenses of production costs. It can not be justified by the growing
competition of the countries that do pay lower wages, but it is the result of a wrong economic
policy, promoted by industrialized countries. It jeopardizes economic growth.
In Europe, international competition has resulted in a redistribution of income and assets. In
the group of employees, those with high qualification earn more and more, while those less able to
have good results and the growing number of unemployed workers must accept lower
revenues. The significant redistribution of income is that from those who have capital, because the
free movement of capital allows the capital owners to blackmail the employees and the unions,
threatening them with outsourcing.
In this way, we reach an apparent shift of power from labor to capital. This is actually
"globalization." In Europe, it can be controlled through a policy-oriented economic growth and
employment. Beyond this we need international agreements to prevent competition, to lower costs
through wage dumping, environment and social protection and to help all countries and the world
economy to move towards a prosperous development.
Nowadays, a key issue is the stabilization of the European financial-banking markets in
U.S.A. and Asia, by strengthening the regulations and supervising the coordinates prudentially.

References

Beck, Ulrich Ce este globalizarea. Erori ale globalismului rspunsuri la globalizare, Ed.
Trei, Bucureti, 2003
Brzezinski, Zbigniew Marea tabl de ah. Supremaia american i imperativele sale
strategice, Ed. Univers Enciclopedic, Bucureti, 2000
Daianu, Daniel Romnia i Uniunea European, Ed. Polirom, Iai, 2002
Dinu, Marin Criza reformei. Eu sunt romn, ediia IIa, Ed. Economic, Bucureti, 1999
Fukuyama, Francis Sfritul istoriei i ultimul om, Ed. Paidei, Bucureti, 1998
Popper, Karl R Conjecturi i infirmri. Cercetarea cunoaterii tiinifice, Ed. Trei,
Bucureti, 2002.
Alexandru Olteanu Madalina Antoaneta Radoi 213
BANKS AND FINANCIAL INTERMEDIATIONS GLOBAL ROLE
OF IN MARKETS GENERAL EQUILIBRIUM
Mdlina-Antoaneta RDOI

Abstract
Due to globalization factors, financial intermediations still create many problems to
national economies as far as the markets general equilibrium is concerned. Although the world is
divided into more than 200 nations with unequal power, there is less than half a dozen key
currencies to go round to facilitate the international financial transactions. Considering that the
combinations between the flexible exchange rates and the free circulation of capital and
information have made the financial system be strongly interconnected internationally, however,
some national economies preserve financial circuits that are not indirectly integrated in the world
system.These aspects have led to the analysis of the relations between the financial intermediaries
on domestic and foreign markets, the banks and financial intermediations global role in national
economies and internationally.

Keywords: Neoclassical equilibrium model, Walraien model, Neoclassical financial
market, financial system, capital marginal efficiency

Introduction
Markets mainly function based on two models:
The Neoclassical perfect equilibrium model that comprises the general equilibrium
properties belonging to goods markets and the production factors, those belonging to financial
markets as well. Both properties have the same form: the atomicity of supplies and demands, the
homogeneity of the products, the transparency of the exchanges and the mobility of the financial
resources.
In perfect competition, the free allocation of capital allows that its economic performance
rise to an optimum level
The basic Walraien model that has several characteristics: the economic and financial
decisions are made by rational individuals that are perfectly informed on market conditions at any
moment; the so called pure and perfect competition excludes all the forms of power on prices;
equilibriumd prices are the result of anonymous forces.
In a perfect information system, in other words in a world without any risks and private
information, the financial capital is an item with homogeneous and constant quality; pro temporis
interest rates are enough to remunerate the lender; the saving supply depends on the preferences
for the present and on the consumption desires. The revenues are split up between the payment of
capital loans and that of the employment. There is no reason for profits to exist. Companies lose
their last individual supplies. Economic agents keep their goods supplies and their accounts that
overtake market prices; deficits are stopped without leading to bankruptcy. They become suppliers
of different goods; the reconversion is done without unemployment.
PhD
The model offers a possible answer to one of the problems that has been around for more
than a century now. This model gives us the opportunity to specifically approach the nature of the
relations between the financial market and economic results, considered as a whole.

Literature review
The Neoclassical financial market organizes the meeting between the agents having
financing capability and the agents that need financing. Producers, goods sellers are not in the
situation of 100% self-financing their equipment expenses. They could spare placing their
available capital taking into consideration the supplies. In the model under discussion, the capital
supply meets the corresponding demand without intermediaries. One could balance all the savings
supplied by the capital and investment market without any loss, with zero intermediation costs.
The market could tell between the various possible equilibriums.
Keynes general theory broke up with the unifying visions summarized under markets
general equilibrium. Consequently, two market sides are totally different. The companies and the
private persons are not in the symmetry rapport adopted through Walras to represent the supplies
and demands addressed to goods and factors markets. Companies, on the one side, spare their
primary savings, and, on the other side, they play a too radical role, differentiated to be able to
borrow a very similar rational behavior: companies are mainly collectivities involved in
production; their behavior surpasses the strict individual rationality frame. Industrial investment
represents a risky action which, in particular, is not directly exposed and which is rarely in the
position of being appreciated by means of simple saving.
Under these circumstances, the capital market functions according to all the methods that
make this difference as Neoclassical methods that can be imagined. Referring to the orthodoxism
characterizing his era, Wicksell outlined the banks role on the loan market: his distinction between
the natural interest rate and the monetary rate asked by banks forecasts the Keynesian
developments on the marginal efficiency of capital and the use, which is also available nowadays,
of the return on equity.
The duality between the fixed revenues and the variable revenues of financial capital is
finally integrated in a repartition theory, which does not comprise opposition of the salaries out the
propertys revenues.
The capital interest rate includes the first variable risks according to the quality of the
debtors. The aversion to risk leads to prudence and restraint; the distrust in the exchange amount,
the rationale used to obtain loans and the miracle of capital operations, all these make the economy
follow the sub-investment type, if we take into consideration the Neoclassical scheme as reference
point.
The imperfections characterising the market information lead to Maltusian practices, which
put a hold to growths and degradation that have no use
1
.
The global role of banks and of financial intermediations, more widely, is positive when
adjusting the capital supplies and demands
2
. As far as the expression financial system, it also
covers the capital market.
A system in which specialized organizations, banks and other financial intermediations
facilitate the circulation and the distribution of capital makes a link between these two activities. In
general, sparing primary savings is usually done by means of depositing them with some financial
1
Akerlof, Spencer, Stiglitz
2
Gurley&Shark
Madalina Antoaneta Radoi 215
institutions, which act as institutional investors: pension funds, mutual and SICAV funds,
speculative funds, insurers, private equity funds, real-estate endorsers, etc.
Banks represent the first source for foreign funds that companies might call for.
Or, banks act in a universe with double risk. On the one hand, like all other companies,
the bank has to conform to the constraints imposed by the financial equilibrium; they are
concerned with conquering parts of the profitable markets; they compete and cooperate with
syndicates on competing markets; they take into account their shareholders: they fully participate
in mergers, acquisitions and restructuring
3
. Consequently, they diversify their activities (loans,
deposits, conciliations, company re conciliations, financial constructions, portfolio management,
etc.), they create different products and services to make better use of their distinctive advantages.
The monetary market places new financial tools under circulation; the alternative financial
procedures allow corporations to be less dependent on the credit institutions for their treasury
needs. To serve corporate clients, banks exploit their compared advantages. The specific advantage
of a bank as compared to other financial intermediaries is that of offering two services instead of
one: that of endorsing and getting payment tools, which is generally represented by currency, and
that of granting loans. Together these activities lead to a reduction in the costs assessing the credit
risk, because the history of a deposit account informs the banker on the financial situation of the
depositor. The bank is also a coalition of lenders who diversify the credit risks. Taking in
consideration their market shares, companies accept indebtedness after banks offer an interest rate
inferior to market price, because the bank uses its own confidential information, that in this case
signals the companys favorable situation; this confidential sign gives the company the possibility
to find financing means on the market. Banks discover that the stock exchange index of a listed
company that wants to renew a contract diminishes the banking cost.
These advantages are even more obvious with small and medium-sized companies, known
on the financial market as quoted groups (Cotin). On the other side, banks encourage the groups of
specific risks, the credit risk and the liquidity risk, respectively. A debtors insolvency is different
from the risk that it is exposed to by buying some common goods whose quality is generally stable
and acknowledged.
The banks relation with its client constantly evolves taking into account the business
environment and its solvency.
Banks should offer high-quality services to their clients, services that should provide return,
and they should not grand suspicious loans: the liquidity of the deposits should be guaranteed; the
assessment of the credit risks and the operational risks should be competently supervised; the
clients should be able to partially calculate their loyalty in case the bank gets into difficulty. In case
of bankruptcy, a banker seriously affects its clients. It is healthy to keep a low competition on
credit market when the debtors weakness probability stays within tolerable limits.
Foreign currencies, loans and reimbursements on the capital market are a collective
product: they are not only accepted to be liberated, to respond to the explanation that Keynes used
to summarize the Neoclassical model
4
. The currency value dominates the relations between the
creditors and debtors. The Central bank tries to find the middle way in order to balance its lender
of last resort role with its inflation master mission; this implies that as a master it has to
increase monetary mass, to supervise the quality of the credits granted within the economy
5
.
To summarize, banking and financial intermediations have some particularities in common.
They represent various activities that globally allow a decrease in the uncertainty of the depositors,
of those that make primary savings and of all potential investors.
3
Bienayme, 1998
4
Skidelsky
5
Allen&Santomero
Multiplying financial products and their securitization possibilities for a future market resale
finally allows adapting market supplies and demands. Financial intermediations aggregate the
various small savings, they diversify and mutualize the risks. At the same time, they have
functions which, if they are competently and honestly used, generally favor economic efficiency,
they stimulate growth and employment usage.
Certain financial intermediation activities characterizing banks generate functioning costs.
This is due to the fact that the savings belonging to their clients are not wholly transformed into
lucrative investments through loans. They can produce a real loss that would lead to a lack of
return for the national economy in rapport with the optimum of the Neoclassical type? Of course
no, because one does not label financial intermediations as lacking return in cases that are
characterized by uncertainty, information asymmetry and other various morally hazardous business
situations. These presumably competent and well-reputed specialized intermediaries use the pulled
savings, without which they cannot pay off their liabilities.
The financial market is congenitally opaque because the exchangeable assets bear eminently
fortuitous future return on investments. Well-experienced financial intermediaries that pool
unexpected primary savings bring about security and trust that capital raise needs, otherwise
production cannot develop.

Conclusions
In order for the financial intermediation relations to ensure the general equilibrium of goods
and financial markets they have to belong to an efficient financial market that should favor instant
allocation of resources.
The analysis outlined the fact that only a profound, liquid and transparent market could
favor capital allocation and provide more information concerning the resulted value of the daily
loans, as well as the projects of the companies with an open market. Moreover, one emphasized
the positive global role that both banks and financial intermediaries have when capital supplies and
demands are adjusted. This very important role is continued by multiplying the financial products
and by securing the debts for being resold on the financial market, which finally allows choosing
the capital supplies and demands on the market.
So, the banking and financial intermediations have several particularities, as they are various
activities that globally allow risk reduction of uncertainty as far as depositors, those that make
primary savings, as well as all potential investors are concerned.
Madalina Antoaneta Radoi 217
PRINCIPLES OF A NEW MODEL FOR EDUCATION
IN THE KNOWLEDGE SOCIETY
Emilian M. DOBRESCU
*

Edith-Mihaela SIMA
**

Abstract
Education is a social effect of millenary human action, stemming from the human
experience throughout its existence, but also scientific and technical knowledge, who put their
mark on human evolution and society. Sociology of education, scientific discipline border,
studying the social effects on the development of education, has taken great theoretical and
practical connotations of centuries XIX and XX century and we now consider the early Millennium
III , an important scientific discipline, scientific accumulation products through all this time, the
disciplines of Humanities and Nature, accumulations which sums up their brilliant education. We
appreciate that, as human society, but nations have better access to knowledge and scientific
information, education in general, exerted on the human individual through classical or modern
methods, the development of education is more important for that society . The more advanced a
society is an educational and scientific, so it is better to plan social activities. Knowledge society,
the current type of planetary human society needs a new model for education, including some
cases that the old educational models, whose viability has been demonstrated from antiquity to the
present in historical periods, locations and areas geographical. Never been more important that
education for human society in this period. Knowledge by all members of society the full set of
information accumulated by mankind over time and how they are used for positive conduct of all
human activities on the planet is very important. This finding generates the particular importance
of the role of education in human progress.

Keywords: JEL Clasification: education, new educational model, knowledge society,
lifelong learning, education throughout life.

Introduction
Like all human experiences, accumulated and transmitted from generation to generation,
education is part of the overall social system. The purpose of education is done in society, both
within the family as the primary purpose entity for the transmission of accumulated knowledge in the
education system (institutional social system of education), in its various stages, but above all the
lifelong the individual, through continuing education. All three sequences - stage of education as a
subsystem of the overall social system are directly dependent on the economic stage of development of
each society and are influenced by all the accumulated knowledge, ideas and doctrines of specific
historical periods, which put their stamp on education in each type of company to lower the level
of individual and institutional entities in society.
*
Professor Ph.D., Scientific Secretary of the Department of economics, law and sociology Romanian
Academy (e-mail: [email protected]).
**
Ph.D. Sociology, University of Bucharest Faculty of Sociology (e-mail: [email protected])
218 Lex ET Scientia. Administrative Series
Education is specific to each individual development of characteristic periods (childhood,
adulthood, old age) but also historical periods experienced by each individual. Education is thus an
epoch of spirit and quintessence of all that mankind has created valuable so far.

Perennial elements of social ideal educational
Social ideal represented in each historical period covered the peak of humanity, a dream, a
higher standard every time another, higher quality than previous standards, by which the most
enlightened people turned using all his skills and knowledge. Similarly, education was and is ideal
for each type of society, everything is better and more valuable time in thinking that the
accumulations removed from reality, spiritual. There is a mutual inter-relationship between social
and educational ideal - the first tangible achievement of all interpersonal factors and social effects,
the second illustration of the knowledge and thinking of these achievements materials.
General functions of education are to: transfer of knowledge acquired by mankind through
the work of each generation, development and training of professional training, specialization of
each person able to work in a profession or occupation. Special functions are related to creative
adaptation, continuous enrichment of knowledge gained by each of us in the learning process and
their daily application. General and special functions is done through institutional social system of
education. Both the social system of institutional education (nurseries, kindergartens, schools,
colleges, continuing education system, improving the training system) and across all other social
organizations and institutions provides a intermingling between the transmission of knowledge and
information gained overall, individual and specific. If education achieved by the education system
is considered vital and most important to education offered by other social institutions we can
consider special education, appropriate institutions. We believe that human societies most
productive and efficient, so that there was a long period of time as, are those members of those
societies in which education takes place in a constructive manner in all types of organizations and
social institutions, primarily schools.
The evolution of human society so far has shown that education and its efficient
transmission to those members of society, is the primary factor, the principle of its operation at the
highest settings. Social factors exert educational instructors in all institutions of society are those
that ensure the positive development of all persons, taken individually or for overall level of
human society in question. Ongoing renewal of education and teaching content is dictated by the
constant accumulation of knowledge and human achievement, which is the basis of human society
these future developments. Peoples who, for various reasons, are not accumulations of material
and spiritual knowledge were, are and will be removed from history. On this basis the ongoing
development of a society, renewal must be continuous adaptation to new needs of the education
system and education.Everything is found, the catalog and apply from the sciences and humanities
is contained implicitly in education and training of the company. Applies to any human society,
especially for the Romanian society in the last hundred years, which gave special attention to
acquisition, learning and applying knowledge of natural sciences and humanities.
Throughout the historical development, all human societies have known and adopted, sooner
or later, changes imposed by scientific thought and progress. These changes are reflected in
particular in content professionals in occupational and social mobility, which stresses the need for
lifelong learning. If education as socio-cultural phenomenon, can be addressed both from a
historical perspective, but also ontogenetic perspective (access to education for every person in its
progress), lifelong learning is a necessity of modern man, forced to cope with change inherent in
education itself, due to dynamic developments in existing knowledge in the bottom of his time.
Emilian M. Dobrescu Edith-Mihaela Sima 219
While education is a historical phenomenon, scientific and socio-cultural, lifelong learning is only
a scientific and socio-cultural phenomenon of the contemporary world. It is a concept and a trial of
topical, illustrating the work of the integrator of all acts and forms of education, in a space-time
continuum. Acknowledging that education includes ideas and knowledge about what mankind has
created valuable during its millenary existence and passing the spiritual quintessence from
generation to generation, man is merely to perpetuate their own physical and spiritual existence.
Scientists have not yet managed to determine the existence of the human genome and to isolate the
gene responsible to a person with education (self-education, lifelong learning, education
throughout life). This means that education, as a social phenomenon multipolar record was not yet
in our chromosome structure, because it continues to be exercised since the first and last moments
of life to that person. A special place in exercise of the phenomenon of lifelong education is the
socialization of the young generation person. Achieved in ways unique in space and time, subject
in particular economic, education has a decisive contribution to the formation of the human
individual, then, by repeating them by each individual, the phenomenon of breeding of education,
its influence throughout society. Science has shown that hereditary factors and social risk factors
are equally important in the life of each individual. Numerous cases of feral children and people
discovered, measured and evaluated, showing that man can not form the man, without education in
family and society, remain at or just slightly beyond the stage of animality.
All historical periods and all human societies have used education to control those people
development and manifestations. The great religious systems of mankind are not only the essence
of education millennial respective peoples, found in the everyday life of human societies in
question. Spirit that always found time for the range of representations to the economic and
ideological education merely represent what is allowed and what is forbidden members of that
society.
As a form of social control, education became a means of social control and underlies all the
changes that happen in society. We might call this vicious circle of education, is a system that
creates norms and values imposed on them and modify them according to the stage reached by the
science, technology and knowledge, there is a danger that at some point to experiments worldwide
out of control. So every society and every human being are the result of education who knew her.
Education effects and generate results that should be higher, exceeding the previous level of
knowledge.
The evolution of modern societies has a strong impact on education. All the phenomena of
economic, social, political and cultural relations with the countries concerned or the entire planet is
facing, shall be without prejudice, directly or indirectly on multiple and complex phenomenon of
learning. Education is itself sui generis synthesis of these phenomena of the contemporary world.
Therefore, it would be desirable for countries in the world and the planet itself should be subject
only to such phenomena and positive influences, unfortunately prevails appreciate phenomena and
negative influences, leading to negative structuring educational phenomenon on the planet. Such
negative influences are generated to the physiological minimum coverage for most of the planets
inhabitants, who live in poor countries and very poor (out of 178 UN member states, about 150 are
large and very large problems caused by endemic poverty and lack of resources for education), the
major economic and social problems these countries face (economic underdevelopment, quality of
life below acceptable standards, etc.).
At the beginning of this new century and millennium, education is profoundly marked by the
phenomenon of hyper media: media attention tends to exceed, for most people, the focus of
education. Although the media should be made at least part of educating children, youth and adults,
reality shows that, except some sporadic positive initiatives, among which lies open and distance
learning (ODL), hyper-media harmful influences, being humans, education and personality.
Numerous studies and examples demonstrate this. Furthermore, an objective self-analysis as each of
us emphasize the negative consequences they endure because of hyper-media phenomenon.
Paramount importance on the education of the future or the future of education have a
system of values and norms, evolving and transforming in step with changes in economic, social,
political and cultural. Obviously, as has happened over time, changes in national and international
value systems will make its mark in the future of education understood in its most general
meaning, as a social activity aimed at sending individuals to the collective heritage society in
which they are inserted.

American model of education is no longer current
Consume, consume ! You have no money? Give you credit. You can not afford credit? We
have the solution: another loan to pay by credit first! You just need to consume, we take care of
the rest. And the rest is history, even today is History
1
, including us, romanian.
Mr Samuel Whybrow, head of the Institute of Neurological and Behavioral Sciences at
UCLA Semel, has stated, argued, a theory on how justified, so disturbing. In fact, man is incapable
of biologically, to live the American dream ...We was taught says Whybrow, that: happiness
comes at the end of a rolling road after an accumulation of material goods, which have been
handled we want them to. The title of his book - American Mania: When More Is Not Enough -
said almost all. Primary human behavioral tendencies produced by millions of years of evolution
driven by poverty, the place no longer fit the modern world that we built. In this context, our
nervous system, based on the dopamine reward became addicted to immediate gratification. This
led to the destruction of the natural balance between past and future.
We stuffed with junk food, rich in cholesterol and Es using credit cards to purchase goods
which, in fact, normally we could not allow us. And then, exhausted by work, sleepless and chase,
us sick with anxiety and depression. Get to sleep that anesthesic vigilance. Actually, the credit
means that you put a slave in a utopia, since after you bought everything you wanted - mortgage
your future - find that it is actually happy. Markets ... we place no limit excesses, but rather
encourages them. That sounds something like: eat more and more, can give credit to others that
he consumed more and more. Instinctive brain is well ahead of the intellectual ... What would be
the solution? ... One of them caught my particular attention: People should be able to teach
children to live modestly and to correctly identify needs.
American or European consumer model of general welfare state live their last moments
(days, weeks, even several years ...). The more moments will be shorter, the mankind will
recover faster in a direction that has never been an evolution in a direction that would allow the
return of deep and there is no formal scale and becoming perennial. And, for this is the need for a
new education from the earliest age and up to the largest, a new way of conceiving the existence of
each of us, as we have not done so now some (very few, initiates this new thinking and action) or
others (the many, not only to think of physical competence, which unfortunately fail to reach all ...).

Poor education - the real cause of recurrence of seizures
Despide, in support of the above, the issue of financial education on the agenda was the
European Commission and Member States well before the credit crunch since summer 2007, but was
1
Cristian Crisban, Mortgage the Future, The newspaper of Sunday, November 7, 2008, p. 8
not sufficiently disseminated and raised. Thus, European policies were formulated in order to achieve
closer targets, such as better communication and consumer financial information and better protect
them. Instead, there not have been too much for long-term educational goals, the EU in this area
because the power is, in fact, quite limited. Although the subject has clear financial implications and a
direct impact on the common market, education is still a matter of national competence.
European Commission noted the key role of education in a number of documents since 2005,
supporting Member States to adopt effective measures to improve financial skills. On two occasions in
2006 and 2007, EU Ecofin Council stressed the importance of supporting financial education and
consumer awareness of Member States. Introduction of new pension systems in different Member
States, which employees more responsible investing autonomous part of their pension funds, the issue
has particular importance of financial education. Many observers argue that the lack of financial
understanding among American consumers has fueled the crisis. Informed consumers could avoid
purchasing hazardous products offered by managers tend to assume certain risks. Thus, a weak
consumer information and essentially uncontrolled sale of complex and risky products gave rise to the
maximum downside of the financial crisis of September-October 2008.
Consumer organizations also stresses the importance of financial education. Under
European rules, banks must properly inform their customers when selling financial products and to
warn of the risks assumed. And consumers should be able to easily compare different banking
products whose characteristics make them aware. European Council of Ministers in April 2008
approved a revised directive on consumer credit, which has sought increased protection and
harmonization of European citizens who are borrowing. Directive seeks standardization of
information to be released to facilitate comparison of different loan offers to consumers.
Crisis is the real cause of recurrence in individual and social reality EDUCATION
defective. It must therefore change the way people are educated throughout their lives. Albert
Einstein, one of the largest earth spirits, said about the crisis: The crisis is the most blessed event
which may occur for countries and people, for it entails progress. Who is exceeded crisis than
himself, but still exceeded. The real crisis is the crisis of incompetence. Problem people and
countries in crisis are laziness and indifference to find solutions and output from such situations.
Without is no value crisis. Blooms during the crisis better what each ... If we talk about crisis -
promote. Instead, however, work better. The only crisis is a tragedy not wants to struggle to
overcome the crisis.
At the beginning of the last decade of November 2009, MEP Lothar Bisky (EUL / NGL,
Germany) asked if the Commission President was ready to learn the lesson that the new
Commission false market economy. Barroso stressed that the focus will be on education, training,
worker mobility and combat social exclusion and poverty.

Conclusions
I thought that required a new educational model, the following principles, methods, means
and measures for its realization:

Principles
1. Explain the meaning and the meaning knowledge society
2. Greater importance of innovation and discovery to acquire knowledge and mechanical
repetition.
3. Adequacy of educational policies with a company through the period.
4. Education planning and predictability.
5. Extending criticaldistance education.
6. Primacy of practice before theory.
7. Evaluation and quantification of effects.

Methods
1. Individual energies to education.
2. Promoting learning through discovery.
3. Develop programs and clear responsibilities for implementation.
4. Time-bound plans for implementation.
5. Permanent and continuing education.
6. Promoting learning through visits to nature or objective.
7. Applying classification and evaluation systems.

Routes
1.Allocation of at least 3 percent of GDP for education.
2. A new education law, as comprehensive.
3. Curriculum related teaching practice, not theory.
4.Designing the educational activity through media and information and communication
technologies.
5. Encourage and support institutions that promote effective educational instrument.
6. Using the experience of NGOs in education.
7. Promoting competition and rankings in education.

Policy makers and individuals directly involved in the globalization race is concerned,
directly or indirectly, of thinking and application of measures affecting education and educational
effects on individuals from different countries of the planet. In the process of globalization, the
devastating nature of the planet and human beings, the most urgent necessary measures to be taken
on line education in each country to propose the following
2
:
Deep involvement, thorough and professional societies prognosis, as the new Society of
Mathematics, Physics Society, Chemical Society, Biology Society, the educational process.
1. Increased education on practical training phenomenon, the formation of skills through
laboratory experiments (even demonstration, where there is the material basis). A special concern
should be given to equipping the minimum standard of school laboratories.
2. School on its various levels, providing access and opportunities to all, but to cultivate
and elites. There special programs for gifted students and - reciprocally - for students with
difficulties.
3. Teacher manual and computer must support and exploited each other in the modern
education. Computer and Informatics Communication Technologies (ICT) should be seen as part
of the educational process and not as a substitute for formal textbook or teacher.
2
apud * * *, Report summarizing the public hearing from October 28. 2009, on skills training: a necessity
for the XXI century society? (Selective) website www.Sinteza_SAR_AA_Siveco_11091752.pdf, visited on the day
of 17 December 2009
4. Computer to be used as a tool for teaching and learning, not be an end in itself. Using
the computer to be dynamic and teacher to verify hypotheses by computer, in an attempt to justify
theoretically, but not just to read text on screen to present a documentary film or make simple
comments.
5. Printing a trial basis in humanities teaching, but especially those belonging to natural
sciences. Understanding of sciences and education, especially in mathematics - mainly middle to
form the major powers of modern man: the possibility of correct thinking and logical reasoning in
situations of any kind.
6. Using deeper exploratory nature of science to training the ability to switch from private
to general. Enhancing the role of experiments to analytical thinking as subjects and not only to
cultivate their practical skills
7. Develop educational programs with less detail than is currently loaded, which rely more
on private crossings in the general and the appeal to intuition, experiment and critically.
Abandoning the educational process focusing on memorization and transmission of information or
the automatic playing their review processes / evaluation. Elimination of all, whatever that school
levels, the test subjects and pre-published solutions and switching solutions, in the latter case, the
trials with random allocation (computer) covering all relevant educational programs.
8. Acquisition of key skills in natural sciences and the Humanities, such as practical skills,
learning skills throughout life, digital skills, the handling of computer or laptop.
9. Focusing on the needs expressed by business and the demands of the labor market, the
study and acquisition of business needs in curriculum design.
10. Introducing innovative education, jump to pedagogy based on inquiry and discovery,
observation, analysis and synthesis. Developing reasoning ability of the subject, understanding the
phenomena and not saving their deployment.
11. Develop skills to act in a given situation based on information and previously acquired
skills, education must be trained actor to independently judge the real problem, to form an opinion
and find an answer.

References

* *, European Association for Quality Assurance 2000, website www. ena.be / eua /
index.jsp
Gillees Ferreol et al., A Dictionary of Sociology, and Science and Technical Polirom, 1998,
the concept of education, p. 62
*, Quality education manual, guide, Institute of Education Sciences, Bucharest, 2006
* *, Management de la Qualite en Education, Lignes directrices pour lapplication de lISO
9001:2000 dans leducation
THE POLITICS OF CARE IN A STATE OF CRISIS:
THE ROMANIAN CASE
Alice IANCU
*

Abstract
The present paper aims to investigate the Romanian public discourse and policy-making
regarding care during the post-communist transition and its possible implications in the context of
the present financial crisis and Romanian political realities. The paper is divided into three main
sections, corresponding to the three main dimensions of analysis: one detailing the theoretical
framework used in the present approach, one presenting a brief overview of the politics of care
during the Romanian transition and one addressing the new issues put forward by the present
context. Drawing from the insights of feminist scholarship on the ethics of care, the analysis of
Romanian policies and discourse will be broken down along three distinct but interdependent
research variables: the status of care-taking activities and the situation of care-takers and care-
receivers themselves, especially related to their risk of social exclusion. A list of priorities will be
put forward, both for future research and policy-making.

Keywords: Care, ethics of care, financial crisis, reconciliation, social exclusion

Introduction
The present paper aims to investigate the Romanian public discourse and policy-making
regarding care during the post-communist transition and its possible implications in the context of
the present financial crisis and Romanian political realities. The analysis follows the theoretical
insights of feminist research, particularly the ethics of care.
How and if care is integrated into the wider domain of political research and theorizing is
directly connected to how it addressed through public policy. The question of care highlights both
the connection between the welfare state and gender and draws attention to particular aspects
relevant especially in the current crisis: the gendered levels of income, womens presence in the
labor market and the priorities in the redistribution of resources.
The paper is divided into three main sections. The first section briefly presents the
theoretical framework used, mainly pertaining to the feminist ethics of care. The second part
consists of a brief overview of the politics of care during the Romanian transition. The analysis of
Romanian policies and discourse will be broken down along three distinct but interdependent
research variables: the status of care-taking activities and the situation of care-takers and care-
receivers themselves, especially related to their risk of social exclusion. One final section
addresses the issues put forward by the present context, mainly the present financial and political
crisis. A list of priorities will be put forward, both for future research and policy-making, as part of
the concluding remarks.
The feminist literature on care is extensive and it is not the purpose of this paper to offer a
comprehensive presentation of these contributions. Rather, I aim to identify the main theoretical
*
Ph.D., National School of Political and Administrative Studies, Bucharest.
Alice Iancu 225
insights pertaining especially to the ethics of care and apply them to the specific Romanian present
context. Recent feminist analysis has focused more on specific state policies and how they address
the issue of care, both as part of national or cross-national research. The current paper follows a
similar path, using available data and drawing on previous research on the issue.

1. Theoretical framework
The theoretical approaches to care briefly presented in this part of the paper do not seek
simply to affirm the value of care as it is understood and addressed within traditional gender roles
discourses- where care is a natural, often instinctual activity, usually attributed to women and
belonging to the private sphere. What is at stake is the valorization of care as a publicly relevant,
deeply political activity.

1.1 The caring self and the value of care
The current debates concerning care have feminist theorists and research at the center, since
the value of care and how politics is related to it usually affects predominantly womens lives.
These debates run along three interdependent but distinct lines: 1. they are ontological in their
focus, because what lies at their centre is a particular conception about the self 2. They discuss the
ethical implications of taking the embedded subject seriously and 3. They have distinct policy
implications, which is the part I will focus mostly on.
The ontological line of argument follows from taking womens life experiences seriously
and considering them relevant to political and philosophical inquiry. An important part of
womens lives is dedicated to care-taking activities and the implications for political thought are
substantive. While most political theories address the subject from the standpoint of an
independent public self, proponents of an ethics of care argue that this independent self should not
constitute the basis of political thinking. Since most peoples lives are actually marked either by
the care they receive (most of our lives we receive care, as children, elderly, sick or disabled)
either by the care they give (especially in the case of women) a relevant political theory should
begin with an embedded conception of the self
1
, In this context Whitbeck argues for a feminist
ontology that has at its core a conception of the self-other relation
2
that is significantly different
from the self-other opposition
3
that underlies much of the so-called Western thought
4
. This
opposition has lead to two conceptions of the person that Whitbeck considers related to one
another: patriarchy and individualism. What relates them is the use of dualisms
5
long favored in
Western philosophy. In response feminists proponents of an ethic of care offer a different view of
the person. A feminist ontology would offer a vision of society based on mutual realization
6
,
1
Caroline Whitbeck, A Different Reality: Feminist Ontology in Beyond Domination, ed. Carol Gould, 64-
88 ( New Jersey: Rowman&Littlefield Publishers, 1989), 64; Virginia Held, The Ethics of care. Personal, Political
and Global. (New York: Oxford University Press, 2006), 13; Joan Tronto, Moral Boundaries: A Political Argument
for an Ethic of Care, (New York: Routledge, 1993),162.
2
Authors emphasis
3
Authors emphasis
4
88 ( New Jersey: Rowman&Littlefield Publishers, 1989), 64
5
There is long list of dualisms feminists contest: private/public, nature/culture, reason/feeling, spirit/matter,
mind/body, all conceived as part of a conception treating the male/female distinction in the same oppositional
hierarchical manner. See Caroline Whitbeck, A Different Reality: Feminist Ontology in Beyond Domination, ed.
Carol Gould, 64-88 ( New Jersey: Rowman&Littlefield Publishers, 1989), 64
6
88 ( New Jersey: Rowman&Littlefield Publishers, 1989), 65
focusing on practices mostly common to womens life experiences. This new view of the person
would be historical and relational, seeing the subject as a part of social relationships and the
process of becoming a person as conditioned by those relationships
7
.
Thus taking such a view of the person as a starting point implies a significant change in
political ethics and theorizing (For example the relationships that exist between actual persons are
usually more scarcely analyzed in political theory because of their more private nature.)
Feminist theorist differ in their approach to this particular issue: some argue for a radical change in
the way political theory and ethics is constructed, others seek to integrate these insights into wider
already accepted categories in political theory.
Virginia Held and Caroline Whitbeck, for example, argue for a complete shift in focus.
What appears as exceptions in traditional ontology, instances where all members of the family,
for example, take turns in caring for one another or how health can be relational- mother-child care
is a prime example, would find adequate representation in a feminist ethics of care
8
. All this would
in turn lead to a new ethics of responsibility, in place of a rights and obligations language,
responsibilities that arise from everyday lived relationships
9
. While rights and obligations are not
entirely discarded, they have more of a subordinated and instrumental character: they are
necessary if people are to meet their personal responsibilities to one another
10
.
Virginia Held stated the case for such an ethic in terms similar to Whitbecks: An ethic of
care characteristically sees persons as relational, and interdependent, morally and
epistemologically.
11
. There are several traits of the ethics of care in Helds view: First, we should
put the needs of those we are responsible for at the center of our moral reasoning: the central
focus of the ethics of care is on the compelling moral salience of attending to and meeting the
needs of the particular others for whom we take responsibility.
12
Second, in contrast with most
dominant moral theories, epistemologically emotion is just as valued as reason. Third, lived
relationships enable moral reasoning in no way inferior to abstract thought. While abstract thought
is believed to lead to greater impartiality, and lived relationships seen as impeding such
impartiality, within the ethics of care the responsibilities a person has within her relationships
carry greater weight. While not all theorists agree on how and if this would ensue in a tension
between care and justice, for example, they question the ontological assumptions at the basis of
claiming the superiority of abstract reasoning. Such superiority would be valid only if one
presupposes an egotistical and competitive world with only universal moral claims to keep it in
check. Fourth, an ethic of care challenges the public/private divide and bring the care-taking
activities of women into the public sphere. Fifth, it begins with a different account of the person.
13

7
88 ( New Jersey: Rowman&Littlefield Publishers, 1989), 77-78
8
88 ( New Jersey: Rowman&Littlefield Publishers, 1989), 77-78
9
Whitbeck takes care in stating that these are not seen as contractual relationships, since some type of
relationships such as those between parents or children are not adequately illustrated in a contractual view and since
a contractual view is poor at addressing the changes the parties go through, like children growing up. See Caroline
Whitbeck, A Different Reality: Feminist Ontology in Beyond Domination, ed. Carol Gould, 64-88 ( New Jersey:
Rowman&Littlefield Publishers, 1989), 80.
10
See Caroline Whitbeck, A Different Reality: Feminist Ontology in Beyond Domination, ed. Carol
Gould, 64-88 ( New Jersey: Rowman&Littlefield Publishers, 1989), 79-80
11
Virginia Held, The Ethics of care. Personal, Political and Global. (New York: Oxford University Press,
2006), 13
12
Virginia Held, The Ethics of care. Personal, Political and Global. (New York: Oxford University Press,
2006), 10
13
Virginia Held, The Ethics of care. Personal, Political and Global. (New York: Oxford University Press, 2006),
9-14
Alice Iancu 227
Joan Tronto also emphasizes that an ethic of care would place attentiveness, responsibility,
competence and responsiveness at its center
14
. In her view the relevance of the debates concerning
the ethic of care goes beyond metaphysics or moral reasoning. This is why I will insist on Joan
Trontos approach to care, one that she argues is distinct because of her insistence that we cannot
understand an ethic of care until we place such an ethic in its full moral and political context.
15
In
this way several key features of a political ethics of care emerge: First, valuing care politically
displaces it from older traditional sentimental frameworks
16
. The distance between an ethic of care
and traditional ways of thinking about caring is emphasized by Tronto, who underscores the fact
that if care is thought of in terms of natural or cultural-conditioned behavior it loses all
relevance for a moral theory
17
. Care emerges as an activity that involves competences, judgments
and socially valuable work, not as a natural instinct. For Tronto care transcends Whitbecks lived
relationships, since judgments and decisions formulated within a care-taking context go beyond
that and require an assessment of needs in a social and political, as well as a personal, context.
18

Second, valuing care politically would recognize what is essentially a central aspect of
human life, one that, if left unanswered for, would deem a political approach inadequate. Since all
humans are dependent and in need of care (as children) and others need care more or less even as
adults (in case of sickness, old age or disability or other types of needs), they should be regarded
as interdependent
19
. This approach displaces three interdependent boundaries found in political
theory: the private/public, the ethics/morality and the morality point of view boundary that
places morality in a world of emotions and irrationality.
20

Third, the relation between ethics and politics is put into question. Tronto rejects a
morality first approach. Care is not to be thought in terms of virtues or moral merits
21
nor would
a universal principle of care in the form advocated by some be appropriate
22
primarily because
what is needed is a workable principle of care that would transcend lived relationships.
Fourth, a political view of care would allow for a moving of the private-public boundary.
However for the private to become public, ethics and politics should be conceptualized as
informing each other. Any time they do not, care is devalued, since Care seems inevitably private
and parochial because we now construct social institutions so that care only occurs in these
contexts. Care seems irrelevant to public life because politics has been described as only the
protection of interests. (Tronto, 1993, p.178). A political conception of care would lead to both a
recognition of work that is not public (since care-work is often informal) and to an awareness that
14
Joan Tronto, Moral Boundaries: A Political Argument for an Ethic of Care, (New York: Routledge,
1993), 127.
15
1993), 125
16
Whitbeck also explicitly rejects the use of nurturing activities as a useful concept, deeming it too
associated with a sentimental picture of a woman doing a variety of mindless tasks in response to the demands of
others (Whitbeck, 1989, p.65).
17
1993), 125
18
1993), 137
19
1993), 162
20
1993), 8-11
21
1993), 154
22
1993), 159-160
care needs institutional settings. For example, I would argue that the public policies concerning the
reconciliation between career and the family stem from exactly this understanding.
Whether or not one accepts the more radical theoretical accounts of an ethics of care or
leans more towards a theoretical framework such as Trontos there are clear implications such an
approach would bring in terms of how the welfare state and policy-making is understood. These
consequences following the addressing of care as a politically relevant subject, as an activity both
public and socially valuable, are the subject of the next sections of this paper.

1.2 Gender, care and the welfare state
The welfare state is understood at a general level as a sort of equilibrium factor between
market capitalism and social demands. In this context The objective of capitalist welfare states is
to combine economic dynamism with social cohesion, prosperity with social justice
23
.While
historically the role of the welfare state has varied, recently its role in social investment and active
measures have been restated as necessary
24
. The vision of a welfare state there to correct the
inequalities resulted from the market is seen as inappropriate and insufficient. This would be a
passive welfare state, based on a clear separation between economic and social factors, which, in
light of research on new exclusionary phenomena, would deem its compensatory function
insufficient
25
. Rake and Daly propose a vision of the welfare state as a social face of the state. It
is to be understood as a particular state form, whereby the public authorities garner resources and
assume responsibility for organizing their redistribution. Aside from this redistributive aspect, the
welfare state also establishes the framework for the offering of services, such as education, health
and social services, becoming an active actor impacting social reality
26
.
Daly and Rake make the distinction between three main approaches to the welfare state:
social policy, political economy and feminist approaches
27
. The social policy approach is mostly
developed in Great Britain and it focuses on the functions of policy and the relation between social
policy and the law. It lacks a comprehensive concept of the welfare state and is mostly procedural
and detail-oriented, unfitted for comparative cross-country studies, for example
28
. The political
economy approach turns to the organization of welfare states and the role of political actors and
politics. Ideologies are given special importance within this type of analysis as welfare states are
envisioned as the backround for ideological positioning, struggle and negotiation and how they
affect power relations. One of the criticisms with wider gendered implications is that this types of
studies have adopted a narrow definition of power, understanding it mainly in terms of the formal
political arena
29
, sidelining issues concerning womens and feminisms influence on the welfare
state
30
.
The feminist approach focuses on the relation between welfare state and gender, more
specifically gender relations
31
. This approach is encompassed in a larger trend in feminist
23
Peter Taylor-Gooby, The New Welfare State Settlement in Europe, European Societies 10:1 (2008), 3
24
Peter Taylor-Gooby, The New Welfare State Settlement in Europe, European Societies 10:1 (2008), 5
25
Pierre Rosanvallon, The New Social Question. Rethinking the Welfare State, (Princeton: Princeton
University Press, 2000), 5
26
Mary Daly and Katherine Rake,Gender and the Welfare States. (Cambridge: Polity Press, 2003), 14
27
Mary Daly and Katherine Rake,Gender and the Welfare States. (Cambridge: Polity Press, 2003), 11, 31-37
28
Mary Daly and Katherine Rake,Gender and the Welfare States. (Cambridge: Polity Press, 2003), 11-12, 32-33
29
30
Mary Daly and Katherine Rake,Gender and the Welfare States. (Cambridge: Polity Press, 2003), 32-37
31
The term gender relations is preferred by Daly and Rake both because the concept of gender
evokes a dichotomous female/male reality and it is often a metaphor for a woman-only approach. Approaching
the issue in terms of gender relations allows for a delineation from these problematic aspects (Daly and Rake,
2003, p.12, pp. 37-342).
Alice Iancu 229
scholarship which treats the state as embedded in society, and not as a separated actor. Feminist
accounts of the relation between the welfare state and gender focus on the normative principles
that characterize different welfare regimes, the policies employed by the welfare state and their
effects.
In the context of the ethics of care debates the feminist approaches to the welfare state fall
within the equality/difference debate: should women be treated the same as men (with men and
mens lives and experiences being the norm) or should gender difference be the starting point?
Nancy Frasers investigation of different welfare regimes presents the principle of gender equity
within the difference/equality debates concerning women and gender relations. Two main feminist
models of the postindustrial welfare are juxtaposed to the equality/difference debate: the universal
breadwinner model and the caregiver parity model. Fraser maintains that a new model must be
found, one that would reshape the debate. Neither model encompasses womens experiences fully
since Women today often combine breadwinning and care-giving, albeit with great difficulty and
strain. A postindustrial welfare state must ensure that men do the same, while redesigning
institutions so as to eliminate the difficulty and strain.
32
. This would come from taking womens
lives as the norm, instead of mens, leading to a deconstructing model, where the distinction
between the two presented models is broken down
33
. While Fraser does not go into greater detail
about this deconstructed model, what is clear from her analysis is that the existing feminist welfare
models cant account fully for gender equity.
However this account would have to reflect both western European as well as East-
European realities. While Fraser frames her analysis starting from the Western reality of a shift
from a single-breadwinner welfare model, such a model has not been part of the Eastern-European
reality. Women in Eastern Europe did not strive to go beyond a housewife role because this role
has not been part of womens experience in the region until recently. After 1950, in the Eastern
communist block, women at the same time mothers, wives and workers. Also womens
relationship with the state in Eastern-Europe followed a different path, that went through three
phases: a totalitarian state where women and mens lives were invaded by the state, an abrupt
redrawing of the state services after 1989 and the present repositioning phase where a middle
ground between the two is searched. A feminist welfare state account would have to acknowledge
this difference and aim towards a welfare state approach that would encompass all European
womens experiences, western and eastern. And both Eastern and Western womens lives are
marked by a combination of paid work on the labor market and unpaid care work done informally
within the family, or poorly paid in the labor market.

1.3 Care and the welfare state
The relation between women and the welfare state is connected to the way the welfare state
shapes family, care and social relations. Feminist theorists and researchers have varied widely in
their approach of the issue. One approach contests the understanding of the welfare state as
benevolent and focuses on the perpetuating of patriarchy by the state, whether through control
maintained over womens choices (through provisions regarding motherhood, for example) or
through the exclusion of women from certain entitlements and benefits, usually by appealing to a
public/private separation the feminist literature contests
34
. Other analysis focus on the active role
32
Nancy Fraser, After the Family Wage: Gender Equity and the Welfare State, in Political Theory, 22: 4
(1994), 612
33
Nancy Fraser, After the Family Wage: Gender Equity and the Welfare State, in Political Theory, 22: 4
(1994), 612-613

34
women play in shaping the welfare state and treat them less as passive recipients of the welfare
states services
35
. Still another avenue of research focuses specificly of welfare state intervention
and on how this intervention shapes womens relations to the family and larger social networks. In
this sense feminist criticism has focused on particular policies and their implications and on
current welfare analysis which tended to sideline such issues as the family
36
. The welfare states
role is crucial in defining caring relations, because not only does it serve to define the location of
care, it exerts a singular influence on whether care is paid or unpaid and on general conditions
under which it is carried out and experienced
37

Should the welfare state be serious about addressing womens life experiences and work it
can not avoid the issue of care. In the context of social exclusion the central focus of feminist
research and policy-making relating to womens social exclusion remains on womens role and
work as informal care-takers and on specific womens experiences, such as maternity. Informal
care work has a significant impact on womens access to the labour market and even access to
social networks- should the double-burden leave insufficient time for forming and maintaining
social relations outside the household. The forming and maintaining of such relations can become
a valuable support system
38
. The status of care (paid or unpaid) as well as the repercussion
womens care-work has on their labor market position, their leisure time and future incomes
justifies the central position care occupies in many feminist studies
39
.
Other analysis focuses on national-wide policy approaches, while its conclusions are limited
by the cultural and normative framework specific to these contexts
40
. Another strand of feminist
research analyzes actual welfare state policies and their consequences, through transnational
comparative studies. This is especially important in the context of gendered social exclusion since
care activities impact womens time, access and career path on the labor market, their education
35
Ann Orloff, Gender in the Welfare State, in Annual Review of Sociology, 22 (1996), 57-58
36
Ute Gerhard; Trudie Knijn and Anja Weckwert, Introduction: Social Practices and social policies in
Working Mothers in Europe. A Comparison of Policies and Practices, edited by Ute Gerhard, Trudie Knijn and
Anja Weckwert (Cheltenham: Edward Elgar Publishing Limited, 2005), 4
37
38
Constanza Tobio and Trifiletti Rossana, Strategies, everyday practices and social change, in Working
Mothers in Europe. A Comparison of Policies and Practices, edited by Ute Gerhard, Trudie Knijn and Anja
Weckwert (Cheltenham: Edward Elgar Publishing Limited, 2005), 58-73; Constanza Tobio; Arnlaug Leira and
Rossana Trifiletti. Kinship and informal support: care resources for the first generation of working mothers in
Norway, Italy and Spain in Working Mothers in Europe. A Comparison of Policies and Practices, edited by Ute
Gerhard, Trudie Knijn and Anja Weckwert, (Cheltenham: Edward Elgar Publishing Limited, 2005), 74-96
39
Jenson, Jane and Sineau, Mariette The Care Dimension in Welfare State Redesign in Who cares?
Womens Work, Childcare and Welfare State Redesign, Edited by Jane Jenson and Mariette Sineau, (Toronto:
Toronto Press Incorporated, 2001), 3-18 ; Jenson, Jane and Sineau, Mariette New Contexts. New Policies in Who
cares? Womens Work, Childcare and Welfare State Redesign, Edited by Jane Jenson and Mariette Sineau,
(Toronto: Toronto Press Incorporated, 2001), 20-42
40
See Bimbi, Franca and Della Salla, Vincent Italy: Policy Without Participation in Who cares? Womens
Work, Childcare and Welfare State Redesign, Edited by Jane Jenson and Mariette Sineau, (Toronto: Toronto Press
Incorporated, 2001), 118-145; Daune-Richard, Anne-Marie and Mahon, Rianne Sweden: Models in Crisis in
Who cares? Womens Work, Childcare and Welfare State Redesign, Edited by Jane Jenson and Mariette Sineau,
(Toronto: Toronto Press Incorporated, 2001), 146-176; Jenson, Jane and Sineau, Mariette France: Reconciling
Republican Equality with Freedom of Choice in Who cares? Womens Work, Childcare and Welfare State
Redesign, Edited by Jane Jenson and Mariette Sineau (Toronto: Toronto Press Incorporated, 2001), 88-119;
Letablier, Marie-Therese and Jonsson, Ingrid Caring for Children: The Logics of Public Action in Working
Mothers in Europe. A Comparison of Policies and Practices, edited by Ute Gerhard, Trudie Knijn and Anja
Weckwert, (Cheltenham: Edward Elgar Publishing Limited, 2005), 41-57; Marques-Pereira, Berengere and Paye,
Olivier Belgium: The Vices and Virtues of Pragmatism in Who cares? Womens Work, Childcare and Welfare
State Redesign, Edited by Jane Jenson and Mariette Sineau, (Toronto: Toronto Press Incorporated, 2001), 56-87
Alice Iancu 231
advancement and participation in community and society life. It also explicitly impacts the
chances of exclusion of those requiring care. The right to receive care and more importantly good
quality care has been the central argument for states increased involvement in the issue of care
41
.
The acknowledgement of care rights does not lead to one single model of welfare-supported care
and in fact wide variations do exist. This type of analysis focuses on the transnational level, on
national level-situations and on the general framework of the European Union.
Daly and Rake propose a transnational analysis of welfare policies concerning care. They
place their discussion in a cross-country framework, focusing on the USA and seven European
Union states: France, Germany, Ireland, Italy, Great Britain, Holland and Sweden. The support
offered by the state is measured by four main variables: social and monetary benefits, strategies
related to the labor market, state services and stimulants for social actors who are potential or
actual care-givers
42
. An analysis encompassing indicators of income and other resources is
especially valuable in the context of social exclusion, where these remain a central focus. The
main problem with such approaches however is the lack of statistical relevant and recent data.
While Daly and Rake are able to formulate some conclusions about the way welfare state policies
impact womens situation, underlining especially the importance of resources allocation for care-
activities, important variations in terms of political culture, normative principles and national
contexts make it difficult to draw definitive conclusions about the best welfare state provisions.
Monique Kremers analysis of the principles that should inform a welfare states approach
to care is set in the context of citizenship rights. She begins her account from Marshalls
conception of citizenship, that stressed the necessity of assuring certain rights that would allow
greater participation in community life and attaining an acceptable life standard, a common
departure point for other feminist theorists as well
43
. Kremers approach could be considered an
application of Joan Trontos proposition regarding the ethics of care. Kremer maintains the
specificity of care-taking activities while integrating them within current debates on the relation
between welfare state and her viewing of citizenship and rights through the lens of care has one
major advantage: it allows for a disruption of the private/public dualism that proponents of an ethic
of care call for. Kremer addresses formerly conceptualized private-public concerns as parts of the
same continuum. The private/public divide is avoided because it is irrelevant in the context of care
since care transcends its rigidity and several spheres of participation are approached as not only
equally important, but also interdependent.
Kremer draws attention to the fact that social rights entail not only access to social protection or
education services but also access to public participation (thus linking it explicitly to issues of social
exclusion). Kremer approaches three social spheres where citizens should participate: the state, the
market and the family
44
. Care is defined as the provision of daily, socio-psychological, emotional and
physical attention to people
45
and under this broad definition both paid and unpaid work is
acknowledged. Women do most of the caring, should it be paid or unpaid.
46
Care is valuable in itself
because it is a fundamental activity not only for women, but for society in general.
41
Marie-Therese Letablier and Ingrid Jonsson, Caring for Children: The Logics of Public Action in
Anja Weckwert, (Cheltenham: Edward Elgar Publishing Limited, 2005), 41
42
43
Ruth Lister Citizenship: Towards a feminist synthesis,in Feminist Review, 57 (1997), 29
44
Monique Kremer How Welfare States Care. Culture, Gender and Parenting in Europe, (Amsterdam:
Amsterdam University Press, 2007), 36-37
45
Amsterdam University Press, 2007), 28.
46
Amsterdam University Press, 2007), 29
This value legitimizes the acknowledgement of care rights, both the right to give care and to
receive care. Her focus is on constructing an account of care rights: the right to give care and the
right to receive care. Thus care rights are explicitly relational, and one would make little sense
without the other. The two rights cannot exist independently; their relation is one of
interdependence. And caring rights, just like any rights only become rights when they can be
used in practice
47
The right to care entails participation-in caring activities, receiving an income
(an issue crucial for women) and having time to give care (an issue which could prove more
important for men insofar as it can help them to legitimize taking care of their children and
dependent others
48
). This time is given through provisions regarding paid leave for care, which
should be equally available to both men and women.
49

Monique Kremer focuses her analysis on several care models and I will present her
evaluation of the Flanders and Denmark child care models. Both the right to give care and the right
to receive care are contextualized differently by welfare states at a national level and incorporated
into different types of care ideals. While both states could be considered a success story in terms
of respecting care rights, their models are radically different. Denmark adopted a professional care
ideal (associated with social democracy) while Flanders opted for a surrogate-mother ideal (more
fitted with Christian democracy). Denmark opted for a professional care-takers system,
underlining the right of children to get the best care. The professional caretakers became members
of powerful unions and enjoyed a good relation with the womens rights organizations. Flanders
preferred a system that would be as close to a replica of the family and community as possible.
Thus childcare is performed by surrogate families (surrogate mothers, actually) in a less
institutionalized framework than in Denmark. It was a less costly system and no expensive
facilities were necessary. One of the noted consequences was the almost total elimination of
informal care. The care workers were initially not taxed but they were also not included into social
security systems. Later they received more support for improving the quality of care, which
became more professionalized and were granted social security benefits.
Although they are based on radically different contexts both care ideals are rated by Kremer
as having some of the best care provisions. Both models have contributed to the decrease of care-
takers informal work because, albeit for different reasons, both states deemed care a priority
50
.
This point is one that needs particular emphasis in the context of care in Eastern Europe. With the
revival of neo-liberal discourses after the fall of communism the state has redrawn much of its
support for care. In Romania the present situation reflects a complete ignorance of the issue of
care and denotes a view of care as apolitical. In Western Europe there is a recent generalized
tendency that reflects a transfer of childcare responsibilities form the family towards the
collective
51
. In Eastern Europe the trend went in the opposite direction.

47
48
49
50
Amsterdam University Press, 2007), 185-197
51
Marie-Therese Letablier and Ingrid Jonsson, Caring for Children: The Logics of Public Action in
Anja Weckwert, (Cheltenham: Edward Elgar Publishing Limited, 2005), 41
Alice Iancu 233
2. The Politics of Care during the Romanian Transition: brief overview
The analysis of Romanian policies and discourse will be broken down along three distinct
but interdependent research variables: the status of care-taking activities and the situation of care-
takers and care-receivers themselves, especially related to their risk of social exclusion
52
.
These three dimensions influence each other and it would be difficult to address one
without the other: how care-taking activities are addressed or not through state policies, for
example should they be paid or unpaid, has a direct effect on the status of care-takers and on the
quality of care those in need of it receive. While separate state strategies could focus on one
aspect, more than the other, treating them as separate issues is not appropriate and a holistic
approach to the issue of care, like the one apparent within the ethics of care, would allow for more
efficient policy-making. In this sense it becomes imperative for care to be regarded as a relational
issue, with care-takers and care-receivers status and lives analyzed within one broader context of
care relations. Formal and informal care should addressed also interdependently, thus going
beyond the private/public distinction. For example when approaching the issue of care-takers, I
will be referring both to informal care-takers (for example women doing unpaid caring activities
for their family members) and to institutionalized care.
Eastern European countries saw a revival of the traditional values discourse after the fall of
communism that impacted directly on gender roles and on how these gender roles were (or not)
addressed by the state
53
. A survey conducted in 1998 within the International Social Survey
Program showed that more than half of the population in the surveyed CEE countries
54
supported
the traditional division of work between genders, with women and men holding comparable views
even across age groups
55
.While Romania was not included in the named survey, data is available
on Romanians attitudes towards gender roles. Work divisions within the family strongly indicate
that women take up most of the domestic tasks ( in terms of childcare in almost 70% of Romanian
households women are the only ones caring for children
56
) even if theoretically 71% the
respondents agree that the work should be divided equally-the difference between what Romanian
men declare and what they do is connected by some researchers both to their desire to legitimize
their authority over the children and to their understanding of how they should care for their
children, since they understand their care responsibility mainly as breadwinning
57

The care-taker/care-receiver relation is relevant for the lives of most women in
contemporary Romania since current traditional cultural practices, coupled with lack of or
insufficient institutional care translate into a social reality where women are the overwhelming
majority of informal care-takers, especially for family members in need of care. Considering that
52
The definition of social exclusion, as the concept is used in this paper draws on European Unions way of
defining exclusion in its official policy documents: Social exclusion is a process whereby certain individuals are
pushed to the edge of society and prevented from participating fully by virtue of their poverty, or lack of basic
competencies and lifelong learning opportunities, or as a result of discrimination. This distances them from job,
income and education opportunities as well as social and community networks and activities. They have little access
to power and decision-making bodies and thus often feeling powerless and unable to take control over the decisions
that affect their day today lives. (Joint Inclusion Report, European Commission-European Council, 2004, p.10)
53
Sylke Viola Schnepf, Women in Central and Eastern Europe. Measuring Gender Inequality Differently,
(Saarbrucken: VDM Verlag Dr. Muller, 2007), 90-91.
54
The surveyed CEE countries refered to are Eastern Germany, Hungary, the Czech Republic, Slovenia,
Poland, Bulgaria and Russia. See (Schnepf, 2007, p. 93)
55
Sylke Viola Schnepf, Women in Central and Eastern Europe. Measuring Gender Inequality Differently,
(Saarbrucken: VDM Verlag Dr. Muller, 2007), 97-99
56
Data from the Gender Barometer, from 2000, the first survey of its kind conducted in Romania.
57
Vladimir Pasti The Last Inequality, (Iasi: Polirom, 2003), 122-123
there is a great proportion (43.9%) of Romanian households living with dependents within
58
the
household
59
the number of women carrying a significant double burden
60
is especially high. This
has a significant impact on womens time, labor market participation, with long-term
consequences on their professional experience and incomes, leading into their retirement benefits.
Apart from the implications for womens informal workload, unpaid caring activities
consequences could be analyzed in terms of access to the labor market and in terms of income
effects. The European Unions report on equality between men and women from 2009 stated that
if one compares the employment rate of women and men with children under 12 to care for,
this gender gap is almost doubled. Also, the employment rate of women falls by 12.4 points when
they have children, but it rises by 7.3 points for men with children reflecting the unequal sharing of
care responsibilities and the lack of childcare facilities and work-life balance policies
61
.
An earlier analysis on gender and the welfare state from 2003
62
indicated that the number of
children is a significant variable when discussing womens participation in the labor market and
that parenting (especially motherhood) has a significant impact on womens incomes. It is clear
that not only being a parent, but also that the gender of the parent is a determinant factor in
relation to the risk of poverty. While in the USA and UK being a father also increases the risk of
poverty, this increase is much weaker than in the case of women. The analysis focused on
evidence from eight western countries, seven from Europe and the U.S.A
63
.
From available data we could determine that the presence of dependents is indeed coupled
with a lower income for women. Households with only one earner run a higher risk of falling
under the poverty threshold. Thus The observed polarization of employment towards a generic
model of households with two earners underlines the rising necessity of a second wage among
European households in order to have a decent level of living
64
. Members of Romanian
households with dependents in need of care, especially children, identify their main problem in
2006 as lack and insufficient income. Also three out of the top five problems are related to the
labor market in terms of finding a job, assuring a decent income and job-related stress.
65
The
presence of children in the household womens poverty risks by raising the costs of the household
and by having a negative effect on womens participation in the workforce and income. This is not
due to Romanian womens own preferences, with women having children aged under 14 showing
greater desire to enter and advance in the workforce than women with no children.
66
Still, in
58
Emphasis mine. The data does not account for dependents in need of care (such as elderly persons) living
outside the household.
59
The data only accounts for older dependents described as Older members of the households who cannot
take care of themselves and children under the age of 18. Other types of dependents such as people with disabilities
or the sick were not taken into consideration.
60
More severe than before 1989, when the state was involved in offering day-care for children.
61
Report from the Commission to the Council, The European Parliament Equality between women and men
2009, The European Economic and Social Committee and the Committee of Regions, Brussels, 27.2.2009, p. 4.
62
The eight countries are France, Germany, Ireland, Italy, the Netherlands, Sweden, the United Kingdom
and the United States of America. (Daly and Rake, 2003, pp.59)
63
64
Working Poor in the European Union, European Foundation for the Improvement of Living and Working
Conditions, http://www.eurofound.europa.eu/pubdocs/2004/67/en/1/ef0467en.pdf, p.24
65
The top five problems identified were: Lack of income/Low income, Health-related problems, Finding a job,
Buying/building a house and job-related stress. The data was obtained through a national-representative survey conducted
as part of the CNCSIS (National Centre for Scientific Research in Higher Education) Project No.964 Gender, political
interests and European insertion, developed by the National School of Political Studies and Public Administration.
66
The data was obtained through a national-representative survey conducted as part of the CNCSIS
(National Centre for Scientific Research in Higher Education) Project No.964 Gender, political interests and
European insertion, developed by the National School of Political Studies and Public Administration.
Alice Iancu 235
Romania, women with children are less present in the labor market than women without
children
67
. Womens income is significantly lower than mens within the general population of
Romanians living with dependents in need of care (children or elderly people in need of care) in
the household. Women make up a worrying majority of people with dependents to take care of
who face lack of income or low income of their own. A significant part of women with dependents
to take care of declare they have no income, thus raising the question of how or if access to the
labour market is made available to them (61% of women living in household with dependants
declared that they do not have their own income; in households with no dependents only 38% of
women declared the same thing
68

While womens participation in the labor market is governed by a broad variety of factors,
policies concerning the family occupy a central role in feminist analysis of womens occupation
patterns in the market. Most feminist analysis focuses on child-care policies, although children are not
the only category women care for: the sick and the elderly are also cared for by women. The choice to
focus mostly on childcare is because this work tends to become full time, is more visible and more
information exists about it. In the meantime informal care for ill and elderly adults is especially hidden.
Only rarely likely to be full-time, it is often fitted in around economic and other activities, including
retirement
69
. More than one model of child care policies can be found in European welfare states and
the differences can be significant, but what appears to be a constant feature is that when state policies
offer women a choice most choose to work
70
. However in states where the family is not a political
concern and traditional gender roles are predominant, such as the Mediterranean countries and the
Eastern-European countries, such a choice is much restrained
71
.
The main contribution of the European Union is the promotion of policies on reconciliation
between work, family and private life as a central policy concept, one adopted by most member
states. The European Womens Lobby links care with social exclusion explicitly: The lack of
affordable, accessible and high quality care services in most European Union countries and the fact
that care work is not equally shared between women and men have a direct negative impact on
womens ability to participate in all aspects of social, economic, cultural and political life.
72
and
particularly with womens difficulty in accessing the labor market and earning a good income.
Reconciliation between work and private life is not a priority for Romanian policy makers,
the transition years being marked by a shift of responsibility for childcare from state-funded
facilities to the family (women). The number of state-funded care facilities decreasing
67
Report From the Commission to the Council, The European parliament, The European Economic and
Social Committee and the Committee of the Regions Equality between women and men-2008,
http://ec.europa.eu/employment_social/gender_equality/docs/com_2008_0010_en.pdf, p. 19.
68
The data was obtained through a national-representative survey conducted as part of the CNCSIS
(National Centre for Scientific Research in Higher Education) Project No.964 Gender, political interests and
European insertion, developed by the National School of Political Studies and Public Administration.
69
70
Mary Daly and Ute Klammer Womens participation in European Labour Markets in Working Mothers
in Europe. A Comparison of Policies and Practices, edited by Ute Gerhard, Trudie Knijn and Anja Weckwert, (
Cheltenham: Edward Elgar Publishing Limited, 2005) 130-134
71
Mary Daly and Ute Klammer Womens participation in European Labour Markets in Working Mothers
in Europe. A Comparison of Policies and Practices, edited by Ute Gerhard, Trudie Knijn and Anja Weckwert, (
Cheltenham: Edward Elgar Publishing Limited, 2005), 131; Ute Gerhard; Trudie Knijn and Anja Weckwert,
Introduction: Social Practices and social policies in Working Mothers in Europe. A Comparison of Policies and
Practices, edited by Ute Gerhard, Trudie Knijn and Anja Weckwert (Cheltenham: Edward Elgar Publishing
Limited, 2005), 11-12
72
Who Cares?, European Womens Lobby, May 31st 2006, http://www.womenlobby.org/
SiteResources/data/MediaArchive/policies/Economic%20and%20social%20justice%20for%20women/EWL%20Po
sition%20Paper%20on%20Care_EN.pdf, p.1
dramatically: from 1991 to 2006 the number of state-funded kinder gardens more than halved
73
.
During the health systems reform the number of hospital beds and crches decreased
continuously, and the informal care resulted was placed again on womens shoulders
74
. In terms of
care for the elderly the state again places responsibility on the family (the women in the family).
The Romanian governments seeked to minimize their role in the care of elderly and an official
report from September 2006
75
stated that the problem lied in the decreasing availability of the
younger generations to care for the elderly
76
. Not only does this show that the Romanian state
does not appear think of itself as having any significant role in caring for its elder citizens, it also
indicates that the Romanian social reality itself is ignored by our representatives. According to the
First European Quality of Life Survey: Quality of life in Romania and Bulgaria, Romanian
families are tightly nit together and the first institution people turn to in need of help is the family.
The only thing Romanians do not ask for from their families is financial support, most likely
because of the fact that the family itself does not have the resources to comply with such a
request
77
.
Moreover, reconciliation policies absence cannot be blamed on an overall skepticism of the
population and social actors towards such initiatives. A research conducted as part of the Equal
Opportunities through Reconciliation between family life and career project, conducted in 2006 by
the Center for Gender Studies and Curriculum Development: FILIA
78
investigated different social
actors positions regarding reconciliation between work, private life and family policies. Through
this project we aimed at identifying the position of unions, senators, businesses and academics on
reconciliation policies and we focused on determining some commonly agreed on reconciliation
policies that would receive the support from all the relevant actors. The research was conducted
using a structured questionnaire grid and the results were discussed within a public debate where
representatives of the social institutions involved had the opportunity to further discuss and debate
their opinions. The results of the research
79
revealed that multiple social actors, may they be
senators, union and business representatives or academics, agreed on a set of policy measures
aimed at improving reconciliation between work and family life
80
. While the degree of skepticism
73
Blu, Oana The Gender Dimension of Reconciliation Between Work, Family and Private Life in
Equal Partners. Equal Competitors, coordinated by Oana Blu, Bucuresti: Maiko, 2007, 114-116
74
National Development Plan 2007-2013, (Planul National de Dezvoltare 2007-2013),
http://www.inforegio.ro/user/File/PND_2007_2013.pdf, p.157
75
National Strategic Report on Social Protection and Social Inclusion (Raport National Strategic privind
Protectia sociala si Incluziunea Sociala), Ministry of Labour, Social Solidarity and Family, Bucharest, September
2006, http://www.mmuncii.ro/pub/imagemanager/images/file/Domenii/Incluziune%20si%20asistenta%20sociala/Pr
oiecte_cu_finatare_externa/6%20-%20Raportul_National_PSIS_final.pdf, p.18
76
My emphasis
77
First European Quality of Life Survey: Quality of life in Romania and Bulgaria,
http://www.eurofound.europa.eu/pubdocs/2006/67/en/1/ef0667en.pdf, pp. 39-41
78
The project was funded by the Chamber of Deputies, within the Partnership with the Civil Society
program.
79
The research results and policy recommendations were published in the volume Equal Opportunities
through Reconciliation between family life and career , Bucharest: Maiko Publishing, 2007
80
The various social actors were asked to determine between the desirability and the feasibility of variable
policy proposals. While respondents believed that most policy proposals presented to them were highly desirable the
top choices that were considered both desirable and feasible were state funding for kinder-gardens and crches,
subventions for single parent families for access to childcare facilities, Support for employer funded childcare
facilities, Introducing a voucher system and Programs for training support for parents returning from parental
leave. See Blu, Oana and Mocanu, Cristina Common Directions for Action ( Direcii Comune de Aciune) in
Equal Opportunities through Reconciliation between family life and career , coordinated by Oana Blu,
Bucharest: Maiko Publishing, 2007, p.56
Alice Iancu 237
concerning the actual feasibility of the policies varied among respondents, with the business
representatives being the most pessimistic and the deputies arguing for a higher desirability of
private business-supported solutions, the research was a great step forward in two ways: first, it
facilitated the introduction of reconciliation policies in public discourse. Second, it showed that
some level of consensus between different social actors could be reached, should there be a
political will to take reconciliation seriously.
Kremers analysis is most relevant point in the context of Romania in that while more than
one model could prove effective in addressing the issue of care, the key variable is that care is
considered a priority and that it is viewed as a politically-relevant issue. The Romanian states
ignorance on the issues of care throughout the transition period reflects a vision of the welfare
state that is eminently gender-blind.

3. The Politics of Care in a State of Crisis
It is crucial that the importance of care-centered policies, particularly in the context of the
current financial crisis, be recognized. At the European Union Level, the Advisory Committee on
Equal Opportunities For Women and Men released in June 2009 its Opinion on the Gender
Perspective on the Response to the Economic and Financial Crisis. Among the recommendations
put forward was the continuing of reconciliation measures
81
. In the Romanian context, analysis of
recent strategies concerning care is made difficult by the fact that the current government has yet
to produce an official governing strategy, while its actions in recent months appear to distance
themselves from the original governing program.
The Governing Program 2009-2012 initially envisioned coherent and particular reforms for
the education and healthcare system, as well as special strategies for families, children and equal
opportunities (the last three domains were addressed together)
82
. It specifically mentioned the need
for increasing the institutional capacity for implementing gender policies and eliminating
discrimination against women in the labor market and the larger social context.
The National Agency for Equal Opportunities Between Women and Men addresses issues
such as reconciliation between work and private life specifically in its National Strategy for
Equality Between Men and Women 2010-2012. Even more, the promotion of reconciliation is a
specific objective within the Strategy and the recommended priorities are a greater valorization of
paid and unpaid work, while both the importance of flexible and alternative work schedules and
legislation on paternal leave is underscored
83
.
However, as stated previously it is hard to establish a serious commitment both from the
part of the Romanian government and other state institutions for gendered care policies. The
National Agency for Equal Opportunities Between Women and Mens budget is insufficient for
allowing for any substantive progress, while its planned activities in the field of reconciliation for
the 2010-2012 period at best lack ambition. These are mainly awareness raising activities, for the
wider population and institutional actors- including one campaign aimed at raising the awareness
of fathers about their own responsibilities in the raising of children. While such a campaign is
welcomed, it does not go beyond the public/private divide, not does it allow for an understanding
of the states recognition of cares political implications. Romanian mothers and fathers should
81
Advisory Committee on Equal Opportunities For Women and Men, Opinion on the Gender Perspective on
the Response to the Economic and Financial Crisis, 10 June 2009, p. 11.
82
Governing Program 2009-2012, http://www.gov.ro/programul-de-guvernare-2009-2012__c12l1p1.html
83
The National Agency for Equal Opportunities Between Women and Men, The National Strategy for
Equality between Men and Women 2010-2012, p.13
care together for their children; however focusing on this aspect obscures the states own
responsibilities both toward the care-takers and the care-receivers.
At the same time it is difficult to assess the current Romanian Governments commitment
for care-oriented gendered policies, in the absence of an official strategy. In the context of
Romanias political crisis
84
and the government invoking its agreement with the International
Monetary Fund
85
as if it were the governing strategy, I would venture to speculate that the priority
given to care-oriented policies is low and will remain even lower. The reforms announced since
the beginning of last year- concerning the education system, healthcare and social protection- are
still being announced. In a Letter of Intent and Technical Memorandum of Understanding dated
February the 5
th
2010, the Romanian government repeats again its commitment to reform in these
areas. The reforms however are all informed by the broader commitment of the Romanian
Government to reduce public expenditures
86
. Concern for the quality of healthcare and education
is secondary and responsibility is placed mostly on the people working in these sectors
87
.
Whatever reforms are envisioned these do not presuppose any increase in the already insufficient
funds the education and healthcare systems benefit from, while the latest government miss-steps
(including payment reductions) have caused great anxiety among employees of both sectors. As
far as institutionalized care facilities are concerned, these are not on the current governments list
of priorities.

Conclusions
The lack of attention given to care could be stated to be the one common feature of
Romanian policies throughout transition. The implications of the feminist ethics of care are
twofold: first, that care should become a priority for policy makers and that no gender equitable
welfare state could be reached without this. Second, that care should be thought-off in relational
terms: the status of care-taking activities, the well-being of care-receivers and the status of care-
takers should be understood as interdependent.
The Romanian policies during transition ignored both these aspects. Recent Government
policies and actions signal that institutionalized care is not a priority for policy makers and that
they tend to regard the three previously stated dimensions of care as separate. The low status care-
givers from the healthcare and education system have in the governments vision could not result in
quality care. Moreover, the adding of pressure on these care-givers masks the lack of substantial
state-involvement in institutionalized care. Constant gender budget monitoring should be available
in the future, so that the redistributive activities of the state be analyzed by how they relate to
gender equity. Otherwise concern for the vulnerable groups in society, those most often in need of
care, would prove to be either inefficiently translated into policy-making, either empty rhetoric.
84
After months of political unrest, following the latest presidential elections DLP ( The Democrat Liberal
Party, a popular party, member of the European Popular Party) managed to barely pass a government by allying
itself with DAHR (the Democratic Alliance of Hungarians in Romania, member of the member of the European
Popular Party) and benefits from the strong support of the current president.
85
The Romanian Government took out a loan from the International Monetary Fund as a measure against the
financial crisis
86
Letter of Intent and Technical Memorandum of Understanding, Romanian Government, February 5
th

2010, http://www.imf.org/external/np/loi/2010/rou/020510.pdf
87
As an example Prime Minister Emil Bocs Intervention During the Debate on the National Education
Law, in the Chamber of Deputies, http://www.guv.ro/interventia-premierului-emil-boc-in-cadrul-dezbaterii-cu-
tema-legea-educatiei-nationale-desfasurata-la-camera-deputatilor__l1a108514.html

Alice Iancu 239
The present financial crisis calls for a serious commitment to care-policies, especially with
growing social vulnerabilities.
Future research should focus more on policy-effects on care the government strategies have.
Lack of available reliable data is a problem for social research in this field in Romania. More
studies should be conducted emphasizing the need for a holistic approach underlining the need for
the valorization of care, received and offered, and the public/private divide in understanding care
should be displaced and replaced by a deeper commitment and understanding of the
interdependence between the two.

References

Blu, Oana The Gender Dimension of Reconciliation Between Work, Family and Private
Life in Equal Partners. Equal Competitors, coordinated by Oana Blu, Bucuresti: Maiko,
2007
Blu, Oana and Mocanu, Cristina Common Directions for Action ( Direcii Comune de
Aciune) in Equal Opportunities through Reconciliation between family life and career ,
coordinated by Oana Blu, Bucharest: Maiko Publishing, 2007
Daly, Mary and Klammer, Ute Womens participation in European Labour Markets in
Working Mothers in Europe. A Comparison of Policies and Practices, edited by Ute Gerhard,
Trudie Knijn and Anja Weckwert, 122-143, Cheltenham: Edward Elgar Publishing Limited,
2005
Daly, Mary and Rake, Katherine. Gender and the Welfare States. Cambridge: Polity Press,
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Fraser, Nancy. After the Family Wage: Gender Equity and the Welfare State, in Political
Theory, 22: 4 (1994), 591-618
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policies in Working Mothers in Europe. A Comparison of Policies and Practices, edited by
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Limited, 2005.
Held, Virginia. The Ethics of care. Personal, Political and Global. New York: Oxford
University Press, 2006.
Kremer, Monique How Welfare States Care. Culture, Gender and Parenting in Europe,
Amsterdam: Amsterdam University Press, 2007.
Jenson, Jane and Sineau, Mariette The Care Dimension in Welfare State Redesign in Who
cares? Womens Work, Childcare and Welfare State Redesign, Edited by Jane Jenson and
Mariette Sineau, 3-18, Toronto: Toronto Press Incorporated, 2001
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Work, Childcare and Welfare State Redesign, Edited by Jane Jenson and Mariette Sineau, 20-
55, Toronto: Toronto Press Incorporated, 2001
Letablier, Marie-Therese and Jonsson, Ingrid Caring for Children: The Logics of Public
Action in Working Mothers in Europe. A Comparison of Policies and Practices, edited by
Ute Gerhard, Trudie Knijn and Anja Weckwert, 41-57, Cheltenham: Edward Elgar
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Lister, Ruth Citizenship: Towards a feminist synthesis,in Feminist Review, 57 (1997), 28-48.
Orloff, Ann. Gender in the Welfare State, in Annual Review of Sociology, 22 (1996), 51-78
Pasti, Vladimir The Last Inequality (Ultima Inegalitate), Iasi: Polirom, 2003
Rosanvallon, Pierre. The New Social Question. Rethinking the Welfare State, Princeton:
Princeton University Press, 2000.
Schnepf, Sylke Viola. Women in Central and Eastern Europe. Measuring Gender Inequality
Differently, Saarbrucken: VDM Verlag Dr. Muller, 2007
Taylor-Gooby, Peter. The New Welfare State Settlement in Europe, European Societies
10:1 (2008),3 -24
Tobio, Constanza and Rossana, Trifiletti. Strategies, everyday practices and social change,
in Working Mothers in Europe. A Comparison of Policies and Practices, edited by Ute
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Tobio, Constanza; Leira, Arnlaug and Rossana, Trifiletti. Kinship and informal support:
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Tronto, Joan. Moral Boundaries: A Political Argument for an Ethic of Care, New York:
Routledge, 1993.
Whitbeck, Caroline. A Different Reality: Feminist Ontology in Beyond Domination, edited
by Carol Gould, 64-88, New Jersey: Rowman&Littlefield Publishers, 1989.
Bimbi, Franca and Della Salla, Vincent Italy: Policy Without Participation in Who cares?
Womens Work, Childcare and Welfare State Redesign, Edited by Jane Jenson and Mariette
Sineau, 118-145, Toronto: Toronto Press Incorporated, 2001
Daune-Richard, Anne-Marie and Mahon, Rianne Sweden: Models in Crisis in Who cares?
Womens Work, Childcare and Welfare State Redesign, Edited by Jane Jenson and Mariette
Sineau, 146-176, Toronto: Toronto Press Incorporated, 2001
Jenson, Jane and Sineau, Mariette France: Reconciling Republican Equality with Freedom
of Choice in Who cares? Womens Work, Childcare and Welfare State Redesign, Edited by
Jane Jenson and Mariette Sineau, 88-119, Toronto: Toronto Press Incorporated, 2001
Letablier, Marie-Therese and Jonsson, Ingrid Caring for Children: The Logics of Public
Action in Working Mothers in Europe. A Comparison of Policies and Practices, edited by
Ute Gerhard, Trudie Knijn and Anja Weckwert, 41-57, Cheltenham: Edward Elgar
Publishing Limited, 2005.
Marques-Pereira, Berengere and Paye, Olivier Belgium: The Vices and Virtues of
Pragmatism in Who cares? Womens Work, Childcare and Welfare State Redesign, Edited
by Jane Jenson and Mariette Sineau, 56-87, Toronto: Toronto Press Incorporated, 2001

Electronic Documents

Gender Barometer (Barometrul de Gen), Gallup Romania, 2000, http://progen.md/
sys/files/Barometrul.pdf
Governing Program 2009-2012 (Programul de guvernare 2009-2012),
http://www.gov.ro/programul-de-guvernare-2009-2012__c12l1p1.html
First European Quality of Life Survey: Quality of life in Romania and Bulgaria,
http://www.eurofound.europa.eu/pubdocs/2006/67/en/1/ef0667en.pdf.
Joint Inclusion Report, European Commission-European Council, 2004,
http://www.socialinclusion.ie/JointSocialInclusionReport2004.html
Letter of Intent and Technical Memorandum of Understanding, Romanian Government,
February 5
th
2010, http://www.imf.org/external/np/loi/2010/rou/020510.pdf
National Development Plan 2007-2013, (Planul National de Dezvoltare 2007-2013),
http://www.inforegio.ro/user/File/PND_2007_2013.pdf
Alice Iancu 241
National Strategic Report on Social Protection and Social Inclusion (Raport National
Strategic privind Protectia sociala si Incluziunea Sociala), Ministry of Labour, Social
Solidarity and Family, Bucharest, September 2006, http://www.mmuncii.ro/
pub/imagemanager/images/file/Domenii/Incluziune%20si%20asistenta%20sociala/Proiecte_c
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Equal Opportunities Between Women and Men, http://www.mmuncii.ro/
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Opinion on the Gender Perspective on the Response to the Economic and Financial Crisis,
10 June 2009, Advisory Committee on Equal Opportunities For Women and Men,
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in the Chamber of Deputies, http://www.guv.ro/interventia-premierului-emil-boc-in-cadrul-
dezbaterii-cu-tema-legea-educatiei-nationale-desfasurata-la-camera-deputatilor
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/2004/67/en/1/ef0467en.pdf
THE DINAMICS ON CITIZENSHIP A THEORETICAL APPROACH
Diana Elena NEAGA
1

Abstract
In this paper I argue that the concept of citizenship is fundamentally a dynamic concept, a
reflection of the society in which we live in. Thus, I identify participation as the main element of
this dynamics. Starting from a simple definition citizenship as the connecting point between
individuals and the state trough rights and obligations I note that citizenship is called upon on
one hand in order to legitimate a political communitys authority, and on the other hand, in order
to protect the individuals trough guaranteeing a set of civil, political and social rights. In order to
fulfill these functions, the institution of citizenship must permit a continuous negotiation and re-
negotiation of the social contract, in a well-defined framework (in terms of time and place
coordinates). Thus a particular mechanism emerges, transcending the classical theoretical
approaches meant to explain who, how, for whom and why we discuss he issue of citizenship. My
paper follows a three-step argument: first, I will start by deconstructing the concept of citizenship
to its component elements, stressing out those aspects I consider to be relevant in terms of
dynamics. Secondly, I will look at the main theoretical approaches regarding citizenship,
considered as the results of a modeling process which establishes particular relations between
various elements composing a system. Finally, I will underline the importance of participation
(active or/and passive) in the process of (re-)constructing the concept of citizenship. Also, in this
last part, I will try to synthesize the main elements that contribute to the dynamics of citizenship.

Keywords: citizenship, theories of citizenship, active participation, passive participation,
dynamics.

Introduction
The main thesis of my paper is that citizenship is essentially a dynamic concept,
fundamentally depending on the context within it functions. Thus I argue that one of the core
elements composing this dynamics is participation which, in relation with citizenship, develops at
least two dimensions: active participation implying effective and sustained implication of
individuals and groups in the governing processes affecting their lives, and passive participation,
which implies that the lack of action is a form of response or an implicit evaluation of the social
contract at one given moment, thus o form of agreeing on the status quo.
Studying the dynamics of citizenship has in my view at least two major implications: first, it
makes available the proper analytical tools with which one can understand the historical changes
of the concept, and secondly, it may provide researchers with the ability to forecast future
directions in which the concept may change and evolve.
Thus, in this paper I want to reveal the flexible points or aspects present in the concept of
citizenship that can reveal its dynamic nature. I consider such an approach as necessary due to the
1
PhD Candidate with National School of Political Studies and Public Administration (NSPSPA), beneficiary
of the project Doctoral scholarships supporting research: Competitiveness, quality, and cooperation in the
European Higher Education Area, co-funded by the European Union through the European Social Fund, Sectorial
Operational Programme Human Resources Development 2007-2013; webmail: [email protected].
Diana Elena Neaga 243
fact that up until now, the relevant literature concerned with the concept of citizenship developed
an integrated model of the concepts inner dynamics, therefore this essential aspect being taken
into consideration only as a secondary element or as part of a wider context, but never as a core
dimension of the concept.

On account of clarity, I find it necessary to draw up a first subchapter in order to ensure a
clear definition of the concepts I will relate to and make use of along this paper, starting with
citizenship and proceeding onwards with the concepts resulting from its deconstruction. At the
same time, at this stage, my purpose would be to provide an analytical approach to the discussed
concepts by a permanent reference to the core of this paper, namely citizenship as a fundamentally
dynamic notion. The concepts that will be discussed hereafter are: citizenship, individual, political
community, relationship, rights, obligations, participation.

What does citizenship stand for?
Isin and Turner define citizenship as a legal status held under the authority of a state
2
, a
social process by means of which individuals and groups undertake to follow their interests by
shaping obligations and rights
3
. Stressing the participative dimension of citizenship, Richard
Bellamy refers to it as a particular set of political practices involving specific rights and
obligations with respect to a political community.
4

Other scholars emphasize the membership status entailed by citizenship and the relation
between individual identities and the citizenship building process. For example, Thomas Janoski
and Brian Gran approach citizenship from the membership standpoint, be it passive or aggressive,
by the individuals to a nation-state that guarantees them universal rights and obligations on a
certain level of equality
5
, a process in which each persons sees the relation between rights and
obligations as an exchange and a swing by which the self develops in relation to the state and to a
manifold of political groups
6
. Faulks stresses the importance of citizenship as mediating factor in
the relationship between the civil society and the state and the fact that the citizens understanding
of how they are to exercise their rights and obligations is crucial to the soundness and stability of
any system of government
7
.
We can see therefore that the definitions of citizenship are manifold, with certain
elements however remaining constant, namely the relation between individuals and a political
community embodied in a set of rights and obligations, elements that will be discussed in what
follows.

What is the individual or to what sort of individuals do we refer to when taking
radiography of the dynamics of citizenship?
In the existing literature on the matter, a distinction is set between two different approaches
to the concept of individual, approaches which are complementary in my perspective, namely the
bio-sociological
8
, emphasizing the social and/or biological determinism and the philosophical-
2
Isin, Engin F. i Turner Bryan S. Citizenship Studies. An introduction, in Isin, Engin F. i Turner Bryan
S, Handbook of Citizenship Studies, ( Londra: Sage Publication 2002), p. 2;
3
Idem 2, p. 4;
4
Bellamy, Richard. What is Citizenship. A Very Short Introduction, (New York: Oxford University Press,
2008), p. 3;
5
Janoski, Thomas i Gran, Brian. Political Citizenship: Foundation for Rights, , in Isin, Engin F. i
Turner Bryan S., ed., Handbook of Citizenship Studies, (Londra: Sage Publication 2002), p. 13;
6
Idem 6, p. 14;
7
Faulks, Keith. Political Sociology. A introduction, (Edinburgh: Edinburgh University Press, 1999), p. 126;
8
See Budon, Raimond, coord., Tratat de sociologie(Treatise of Sociology), (Bucureti: Humanitas, 1997), p. 251);
political
9
approach, grounded on a conception regarding human condition. Reality, or better said
the perception of reality, is generated by the manner in which the manifold of the aspects related to
biology, sociology and political philosophy configures itself, thereby engendering a model of the
individual, or representing an Weberian ideal type. At the same time, one could easily guess that
there is no single equilibrium point leading to the stabilization of the model, therefore that we are
dealing with multiple equilibrium states intensified by the context in which the calibration of the
model takes place
10
. The perspective that places the individual at the intersection between the
philosophical-political approach and the bio-sociological one could prove very useful in providing
answers with regard to the scope of the concept of citizenship, i.e. with regard to who and why
should or shouldnt be citizen.
What does a political community stand for or what do we bear in mind when we speak
of a political community with regard to citizenship?
Max Weber characterizes political structures depending on the source of the legitimacy,
territoriality, available means of coercion and degree of institutionalization of the authority
system
11
. Setting out from the assumption that power is part of any society and not just a mere
derivative of economical domination and that, besides administration, it also involves governing
people, power becomes as such a basic element for the construction of a political society
12
. The
manner in which the aforementioned elements combine and/or merge has a fundamental impact on
the nature of the political community we refer to at any give moment.
The authors concerned with this issue especially refer to certain political communities
when approaching the problem of citizenship, mainly discussing the ancient and the modern
citizenships with respect to the specific organization of the fortress cities of Ancient Greece and
Roman Empire
13
, respectively the city-state
14
, as within these communities first takes place the
9
In this case we operate with four fundamental perspectives on human nature: the optimistic view- mainly
related to the liberal ideology and according to which humans have an intrinsic value deriving from their being
reason-endowed (ranu, Andrei. Doctrine politice moderne i contemporane (Modern and Contemporary Political
Doctrines), (Bucureti: Fundaiei Pro, 2005), p. 17); the pessimistic view- mostly assumed by the conservative
perspective, setting out from the assumption that the human being lacks a general inclination towards altruism,
being more of an egoistic being, bound rather for idleness and acting only by virtue of self-interest, according to
this approach individual rationality being profoundly marked by emotions (Socaciu, Mihail, coord., Filosofia
politic a lui Thomas Hobbes (Thomas Hobbes Political Philosophy), (Iai: Polirom, 2001), p. 37-38); the
rationalist view- formulated by Grotius according to whom the innate sociability of human being represents its
essential characteristic, adding up to the fact that everybody rigorously respects the promises and conventions they
pledged themselves to (Turchetti, Mario. Tirania i tiranicidul. Forme ale opresiunii i dreptul la rezisten din
antichitate pn n zilele noastre (Tyranny and Tyrannicide. Forms of Oppression and the Right Resistance from
Antiquity to Present ), (Bucureti: Cartier, 2003), pp. 615-618)); the Marxist view- Marxs deterministic historic-
materialistic approach also shapes its view of human nature- the existence determines consciousness.
10
Two such equilibrium states are elaborated in Lockes and Rousseaus theories of natural and civil right.
11
Weber, Max, Politica, o vocaie i o profesie, , (Bucharest: Anima, 1992), p. 8;
12
Chazel, Francois, Puterea (Power), in Budon, Raimond, coordinator, Tratat de sociologie (Treatise of
Sociology), (Buccharest: Humanitas, 1997, p. 248;
13
The perspective on the organization of the polis was a pure utopia, the reality of the political life being
completely different. The fact that the basis for its construction was represented by a small number of citizens, that
should have had sufficient common interests, further enforced directly by participating in the decision making
resulted in the fact that Greek citizenship was rather exclusive than inclusive. As such, women and long term
residents enjoyed only partially the civil rights, while slaves were denied the citizenship. Another source of
exclusion resulted from the fact that freedom and equality were profoundly bound to the membership to the polis,
more precisely to land ownership. See Dahl, Robert A. Democraia i criticii ei ( Democracy and its Critics),
(Bucharest: Institutul European, 2002), pp. 31-32;
14
See Schulze, Hagen, Stat i naiune n istoria Europei (State, Nations and Nationalism: from the Middle
Ages to the Present), , (Iai: Polirom, 2003), chap.1, 2;
coming of the individuals in the political sphere, identified and specified as such and having as
fundament the equality of the citizens as members of a political community, which is a result of
the replacement of the hierarchical and dominance relationships with reciprocity ones
15
.
In this context the gained legitimacy becomes very important, but it must be constantly
maintained and renewed by the legitimizing process [] the mixed character of the political
power is bestowed by this joint and not necessarily harmonious dynamics
16
. As such, we are
dealing here with a political arrangement that stabilizes itself by its very capacity of continuously
adapting to the needs of the governed.

What does a relation consist of and what kind of relation does citizenship entail?
By its simplest definition, a relationship is a link, a connection between things, ideas, facts,
processes, terms etc. In the corresponding literature, the relation between individuals and the
political communities they belong to is defined as an inclusion relationship that, with respect to the
view of the individuals and of who must or deserves to be a citizen, and to territoriality
17
as well,
automatically entails an exclusive dimension. The inclusion relationship entailed by citizenship is
one of order, even of complete order
18
as citizens are considered to be equal with respect to their
rights and duties, therefore comparable in this respect. As such, the assumption by which we
proceed is that given the class of the individuals, one of its subclasses is represented by the
included individuals and the other by the excluded ones. In the next step of the analysis, the
inclusion criteria become important, assuming that citizenship is desirable. Further, the desirability
of citizenship as against the inclusion relationship it entails, involves the fact that the inclusion
relation has value, value that I personally find mainly instrumental, therefore extrinsic
19
, in nature,
as long as the citizen status represents both the basis for the guarantee of the civil rights and for the
enforcement of the obligations, desirability that entails a permanent process of forcing the
boundaries of citizenship, therefore dynamic in nature.

Citizenship: rights and obligations
Citizenship is also seen as the right to have rights
20
, namely that certain something that
conditions the access to certain rights upon the belonging to a political community. In the
specialized literature we basically find two approaches to the citizens rights, the first from the
standpoint of the functions of the rights, the second from that of their scope. With regard to their
corresponding validity domain, and we are mainly speaking here of legal or civil rights (personal
15
Bachelier, Christian, Ce este cetenia?, (What is Citizenship?), (Iai: Polirom, 2001), p. 7;
16
Bachelier, Christian, Ce este cetenia?, (What is Citizenship?), (Iai: Polirom, 2001), p. 7;
17
Reality still compels us to refer to city states, even if in the specialized literature there are ample
elaborations of the theories concerning cosmopolitan citizenship.
18
An order relationship in which any two given elements are comparable bears the name of total order
relationship.
19
One could also find arguments for an intrinsic value of citizenship to the extent that, for example, in a
world of citizens one could want to be a citizen just for the sake of being released of any ulterior benefits and
obligations, citizenship thereby gaining intrinsic value. However, I personally find this aspect to be of lesser
importance in the analysis I set forth, as I believe it can be subsumed to the multitude of possible arrangements in
the configuration of the individual and, as such, the effects of the swing on this dimension are to be felt in the
dynamics of the citizenship irrespective of its being included in the characterization of either the relation, or the
individuals.
20
Bellamy, Richard. What is Citizenship. A Very Short Introduction, (New York: Oxford University Press,
2008), p. 15;
security, access to justice, consciousness and choice), political rights (personal political,
organizational, membership rights), social rights (empowering rights, opportunity development
rights, redistribution and compensation rights) and participation rights (labor market rights,
consultative or determinative rights mostly referring to rights resulting from collective negotiation
and co-determination rights, capital control rights). From the standpoint of their validity domain
we can speak of universal rights (involving all citizens found in the capacity to make use of them)
and of particular rights (applicable to a small body of citizens by virtue of some specific
differences separating the respective group from the mass of the citizens)
21
.
Just as in the case of the rights, the discussion regarding the obligations involved with
citizenship depends on the manner in which the different approaches to the individuals and the
political communities, configure around the inclusion relation, thereby together modeling the
substance of citizenship in different theoretical configurations. It is certain however that
irrespective of the theoretical approach, the obligations mainly involve the submission to and
equality of the citizens with respect to the law, law which is devised in such a manner as to satisfy
the needs of the citizens at a given time. Obligations, just as rights, are shaped along a continuous
process of adaptation to reality, process that provides the substance of the political construction
within which these are undertaken by the citizens, thereby legitimating the government.

Five basic theories of citizenship
Essentially, in the presentation of the five basic theories, I will attempt at providing an
analysis of the manner in which the elements I have presented in the previous pages, come
together in the form a unitary explicative vision of citizenship, more to the point, of the manner in
which a certain vision on human nature, political edification, the nature and the role of the
relationship between individuals and political community is embodied in rights and obligations
that, in their turn, become apparent in the institutionalization of the state by the citizen. The
multitude of the existing theories
22
, is proof to the diversity of the answers that can be given to this
question and to the intense current debates, enlivening the scholarly field concerned with
citizenship. They will be presented hereafter.
The liberal theory of citizenship. The edification of the liberal citizenship
23
sets out from
the individuals, as they are the ones who, by association, set up all the other constructions
pertaining to citizenship. The placement of the individual before everything else is grounded on an
optimistic view with respect to human nature, namely by virtue of the rationality bestowed upon
equal and free individuals. Thereby they are the most qualified to administrate their own lives, the
aims of which limit themselves to the optimal satisfaction of the personal interests
24
. The
development of the conception of the individual has obvious effects upon shaping the criteria for
the right government. Therefore, what we are dealing here with is a relativization of the best
21
See Janoski, Thomas and Grant, Brian Political Citizenship: Foundation for Rights, in Isin, Engin F.
and Turner Bryan S., ed., Handbook of Citizenship Studies, London: Sage Publication 2002; Janoski, Thomas,
Citizenship and Civil Society: A Framework of Rihts and Obligations in Liberal, Traditional and Social Democratic
Regimes, (Cambridge: Cambridge University Press, 1998), pp. 28 - 35;
22
See Beiner, Ronald, Theorizing Citizenship, (New York: State University of New York Press, 1995),
Introduction;
23
The liberal doctrine knows nuance differences that became apparent in the distinction between classical,
social and neoclassical liberalism; the same assumptions however are subjacent to each of them. For further details
see ranu, Andrei. Doctrine politice moderne i contemporane (Modern and Contemporary Political Doctrines),
(Bucureti: Fundaiei Pro, 2005), pp. 23 30;
24
ranu, Andrei. Doctrine politice moderne i contemporane (Modern and Contemporary Political
Doctrines), (Bucureti: Fundaiei Pro, 2005), pp. 17 18;
government, as the latter is permanently being set against the interests of the individuals, interests
that, in the extent in which they can be satisfied by the market, by the regulation of the invisible
hand, involve the maximum possible reduction of the states attributions by virtue of its incapacity
to properly estimate the nature of a government just by the legitimacy bestowed upon it
25
.
Setting out from this basis, liberal citizenship can be defined as that distinct view on
citizenship having as main finality the maximization of the citizens individual freedom
26
. In such
a structure, the individuals act in keeping with the rights being guaranteed by the political
community, by their own beliefs and values. They are free to choose whether and how they
participate, civically or politically, in what sort of market transactions they partake, thereby also
assuming the effects of the choices they make. The individual rights are universal and precede
both the obligations and the state, but at the same time, the liberal citizens are tolerant with respect
to the obligations deriving from the necessity of respecting the rights of the others. Collective
rights are secondary to the individuals and are not attributed to some abstract entities. The state
must provide for a climate in which the citizens can enjoy equal opportunity, climate that is best
generated by mainly ensuring the civil and political rights. By providing civil and political equality
by virtue of the rationality of the citizens, the liberal citizenship tolerates inequality in wealth and
income gained from the performance on the market, fact leading to an incompatibility with the
redistributive policies.
The communitarian theory of citizenship. An alternative to the liberal view on the
citizenship is provided by the communitarian theories
27
. The ground pillar around which the
communitarian citizenship is constructed is the community
28
, which is considered to precede the
political order and the state.
With regard to human nature, the communitarians claim
29
that there is no immutable
reference system and that it would be more pertinent to speak of a dynamic, gradually developing
human nature. As such, according to this view, we do not get born humans, but become as such.
Setting out from this assumption, the communitarians, totally opposed to the conservatives,
believe that individuals, in the extent that they are being embedded in a favorable, moral
environment, which is rich in values, develop ever more virtuously. Socialization, namely right
socialization, becomes essential and along with it, the socialization environments become the focal
point of the communitarian approach. Family, school, community and communities of
communities are the basic moral infrastructure for the shaping of the individuals.
25
The aim of the liberal conception on the role of the state is to avoid the risks entailed by the fact that the
relation between the individuals and the political community in which they act is regulated by the legitimacy that
covers only the good part of the government, the bad part thereby eluding control. Therefore, according to the
liberal conception, as long as there is an alternative formula guaranteeing the promotion of the interests of the
individuals, namely the market, the role of the government can be limited, thereby also minimizing the risks of the
emergence of illegitimate governmental actions.
26
Suck, Peter. H., Liberal citizenship, in Isin, Engin F. and Turner Bryan S., ed., Handbook of Citizenship
Studies, (Londra: Sage Publication 2002), p. 132
27
The main foe of communitarians is liberalism. This adversity is not gregarious in nature, of in corpore
rejection of the liberal ideas, it is a process of dynamical borrowing of concepts and of relocating them in a new
space- the social space. (ranu, Andrei. Comunitarismul doctin contemporan. O filosofie a binelui comun
Communitarianism a Contemporary Doctrine. O Philosophy of the Common Good- (Chiinu: Arc, 2005), p. 33);
28
The community therefore becomes a group of persons tide together by specific interests in a social group,
characterized by a specific structure and culture, resulting from the relationships and psychosocial processes within.
ranu, Andrei Comunitarismul doctin contemporan. O filosofie a binelui comun Communitarianism- a
Contemporary Doctrine. O Philosophy of the Common Good, (Chiinu: Arc, 2005), p.11);
29
Several nuance positions emerged within the communitarian perspective- communitarians, civil
republicanism, liberal communitarians. These differences do not concern this study, that attempts at providing a
general perspective on the communitarian theory with respect to the elements that are related to citizenship.
Regarding the political community, the state, the communitarians claim that we should
dispense with the idea that the state should be neutral, backing the conception that the state should
be involved in the life of the community, in the production of the common good, by its capacity to
impose certain limitations on self-determination, which are necessary for preserving the social
conditions capable of generating and strengthening self-determination
30
.
According to this approach, citizenship emerges within a community characterized by a
specific cultural dimension, thereby stressing the social dimension of the rights and obligations.
For the communitarians, citizenship involves the participation to the political life of the
community, while, at the same time, accounting for a way to preserve its identity, thereby
representing, in one way or another, a challenge to the universalism of the liberal citizenship that,
from this standpoint, becomes rather problematic with respect to the integration of a set of very
different identities.
31
Mindful of the differences, the communitarians support the equal dignity of
the citizens and find that the majority should make concessions in favor of the minorities and, very
important, claim that the state should grant them formal recognition.
The republican theory of citizenship. The republican tradition, according to Dahl, sets out
from the assumption that the human being is, by its very nature, a social and political being that
must cohabitate within a political association. [] a good man must be a good citizen; a good
political organization is an association made up of good citizens; a good citizen is one endowed
with the quality of civic virtue; virtue is the predisposition to seek everybodys wellbeing with
respect to public issues; therefore, a good political organization is one that not only reflects, but
also promotes the virtue of its citizens
32
. Therefore, the republicans emphasize in great extent the
civic virtue, but at the same time they stress the fact that it is not immutable, but, au contraire, a
people or its leaders can become corrupt, the greatest danger being represented by the emergence
of certain political factions promoting a state of conflict within the republic
33
.
The republican citizenship is set somewhere between the liberal and the communitarian one,
attempting at finding a balance between rights and obligations, individual and community, by
promoting both cooperation and competition. The republicans find that the best instrument for
promoting this balance is the participation, be it civic, political or on the market, criticizing liberal
theories for their over-stressing of privacy, individual rights and underrating of the promotion of
the civic virtues, which can lead citizens to a better performance of their duties.
Another important aspect of the republican citizenship regards its legal status. The
republican tradition sees freedom as a product of the laws generated by the citizens through
participation, unlike liberals who claim that laws are a necessary evil the function of which would
be to preserve that much freedom for the individuals as to enable them to live together
34
.
Therefore, while liberals emphasize individual autonomy, the republicans support the cohesion of
the community, which governs itself on the basis of the legality resulted from the participation of
the citizens in the very laws they are subject to
35
.
In nuce, republican citizenship seeks to become a via media between the communitarian and
the liberal approaches, by the fact that: both individuals and communities are important and
30
ranu, Andrei. Comunitarismul doctin contemporan. O filosofie a binelui comun Communitarianism-
a Contemporary Doctrine. O Philosophy of the Common Good- , (Chiinu: Arc, 2005), p. 109;
31
Delanty, Gerard. Comunitarism and Citizenship, n Isin, Engin F. and Turner Bryan S., ed., Handbook
of Citizenship Studies, (London: Sage Publication 2002), pp. 159 175;
32
Dahl, Robert A, Democraia i criticii ei, (Democracy and its critics), (Bucharest: Institutul European, 2002), p. 39;
33
Idem 32;
34
Bellamy, Richard. What is Citizenship. A Very Short Introduction, (New York: Oxford University Press, 2008),
p. 43;
35
Ciprut, Jose V., Citizenship: Mere Contract, or Construct for Conduct?, in Ciprut, Jose V., ed., The Future
of Citizenship, (London: The MIT Press, 2008), p. 11;
therefore participation represents the best way to consensus; groups must respect the rights of the
individuals, which, being underrepresented, must form groups so that their interests can find
representation, as groups have a higher negotiation capacity; there is a complex balance between
rights and obligations, between the universal and the particular, that is being generated through the
rule of law; the institutions resulting from such an interaction between the individuals and the
political community create the necessary spaces for the citizens to actively participate in the
decision making.
Cosmopolitan citizenship, multicultural citizenship. In the end of this section, I find it
necessary to draw up a short presentation of two approaches that are often considered to be
antithetical and that become ever more apparent within the field of citizenship, namely the
cosmopolitan and the multicultural approaches
36
.
Cosmopolitan citizenship originates with the philosophy of Immanuel Kant who, being
strongly influenced by the Cartesian philosophy, by the logic according to which there is a certain
a priori, an undeniable essence, set the basis for a universal system of ethics having as fundament
the aforementioned essence, namely the very capacity as human being, especially by postulating
the categorical imperative- Act only according to that maxim whereby you can at the same time
will that it should become a universal law!, respectively Act in such a way that you treat humanity,
whether in your own person or in the person of any other, always at the same time as an end and
never merely as a means to an end!
37
This universal ethics is guided by a principle according to
which any human being must be treated humanely, that is according to an inalienable dignity that
becomes in turn a global attachment to a culture of non-violence and respect for life, to a just
economic order, to tolerance, to a life guided by truth and, last but not least, to the principle of
equal rights
38
. In the definition of citizenship, Alejandro Colas makes use of the following three
principles: 1. all individuals are members to a single moral community by virtue of their humanity;
2. as such, they are morally bound to each other and these obligations transcend the boundaries of
ethnicity, nationality or of any other particular definition of identity and 3. these obligations
require political involvement with respect to their being put into practice
39
.
The cosmopolitan approach to citizenship is most often criticized for the alleged fact that it
imposes a rather utopian view of citizenship instead of a pragmatic one, namely one that could be
actually embodied in exercisable rights and obligations. Assuming some of these criticisms, the
theoreticians of the cosmopolitan citizenship continue to challenge the traditional approaches that
restrict citizenship to the nation-state, emphasizing the fact that individuals are members to the
international society and subjects to international law
40
.
36
In the literature one could also find references to other approaches to citizenship, such as sexual
citizenship, cultural citizenship, and ecological citizenship. However, I have found it more important to draw up a
presentation of the cosmopolitan and of the multicultural citizenships with respect to the manner in which the
redefinition of the relationship between individuals and the political community they belong to, takes place, namely
by challenging the nation-state as sole political entity for the citizenship to develop in (the cosmopolitan approach)
and by stressing the importance of the processes by which the identity of the citizens is built (the multicultural
approach).
37
Kant, Immanuel; trans. Ellington J.W. [1785] (1993), p. 36;
38
Dallymar, Fred. Cosmopolitanism. Moral and Political, Political Theory, Vol. 31, No. 3 (Jun., 2003), pp.
421-442, p 6;
39
Robinson, Fioana Cosmopolitan Ethics and Feminism in Global Politics, All Academic Research, accesat
pe http://www.allacademic.com//meta/p_mla_apa_research_citation/0/7/4/3/8/pages74386/p74386-1.php
40
An important step to the consolidation of the cosmopolitan citizenship is represented by the Nrnberg
Chart giving army men the right to refuse compliance with the orders of the superiors if these lead to crime against
humanity. At the same time, the CONVENTION FOR THE PREVENTION AND PUNISHMENT OF GENOCIDE (1948), the
CONVENTION AGAINST TORTURE, INHUMAN AND DEGRADING TREATMENT (1984), the UNIVERSAL DECLARATION
OF HUMAN RIGHTS (1948), THE INTERNATIONAL CONVENTION FOR SOCIAL AND POLITICAL RIGHTS (1966)
Multicultural citizenship. The theoreticians of multicultural citizenship claim not only that
universal citizenship and its classical, nation-state bound, form are unrealistic alternatives, but that
these forms of citizenship are a priori undesirable. As such, setting out from the assumption that
any society is essentially multicultural, made up of a manifold of populations of different religions,
genders, social environments or ethnicities, citizenship should provide a favorable space for the
management of these differences so as to guarantee, in equal measure, the identity development of
all the citizens. Multiculturalists claim that the rights of the minorities cannot be subsumed to the
human rights as the international standards to which the latter are subject to, cannot provide
answers to questions such as: What language should there be used in administration? Should any
ethnic group receive financing for native language education? Should the inner boundaries of
states be drawn in such a manner as to insure, within them, the majority of the various ethnic
groups? Should governmental authority be decentralized? Should attributions be imparted in
proportion to the ethnical diversity within the respective state? Should minorities become
integrated? Is it their responsibility to do so? etc.
41
. Therefore, common civil rights, originally
devised by and for the white christian male, cannot cope with the specific needs of other groups,
while an integrative citizenship must take into account these differences
42
.
Kymlicka separates between three types of group rights bound with differentiated
citizenship: a) the special representation rights within representative political institutions; b) self-
government rights (the right of the respective minorities to decide with respect to the aspects of the
outmost importance for the respective community- such as education, language, family etc.), c)
multiethnic rights (the protection of the specific religious and cultural practices of the community
in question, protection that isnt provided by the existing legislation)
43

In nuce, the grounding framework for the multicultural citizenship would reside in the
following claims: the complex identities of the individuals must be reflected by civil rights and
obligations; the groups identified by ethno-cultural characteristics may benefit from collective
rights; universal rights are not sufficient, as they cover only part of the needs of the individuals in
an anifold society; citizens build their identities within groups with the help of group rights, so
they may and must militate for gaining them.
Citizenship and participation. Modern citizenship is necessarily grounded on democratic
principles
44
. Irrespective of the citizens actually participating or not in the decision making
process, the very fact that they can do it, fundamentally changes their position within the
respective political community and the manner in which individuals shape themselves and their
political identity. The existence of the mechanisms which are necessary to make participation to
constitute important steps in defining cosmopolitan rights. Another very important step is represented by the
implementation of the individual petitioning system, allowing an individual to call for the international law system
against his/her own state. See Linklater Andrew. Critical Theory and World Politics. Citizenship, sovergnity and
Humanity,(Londra: Routledge, 2007), chap.7; Linklater, Andrew. Cosmopolitan Citizenship, in Isin, Engin F. and
Turner Bryan S., ed., Handbook of Citizenship Studies, (London: Sage Publication 2002);
41
Kymlicka, Will, Multicultural Citizenship: a liberal theory of minority rights, (Oxford: Oxford University
Press, 1995), p. 5;
42
Idem 41, p. 181;
43
Idem 41, p. 37;
44
The fact that we would find it hard calling democracy what was so called in Ancient Greece or even one
century ago has to do with the manner in which the concept has evolved. However, as democracy grew ever more
inclusive, citizenship developed alongside. In time, the concept of citizenship changed aside with the transformation
of the manner in which political communities were build and also by virtue of the loosening of the necessary
conditions that had to be fulfilled in order to become citizen: starting with Ancient Greece, the Roman Empire and
ending with the nation states and the challenges brought upon them by multiculturalism and cosmopolitanism.
the governing process possible
45
, by virtue of the sovereignty derived by the people and for the
people, engage two mechanisms that are fundamental, in my opinion, for regulating the democratic
construction and, at the same time, the rights and obligations involved with the citizen status:
legitimacy and responsibility. As such, in a democratic regime, even if there is no generally shared
vision of the way in which equality, freedom and security may combine, thereby generating the
optimal conditions for the citizens, we can speak of an arena for the debate with respect to these
aspects and within which consensus can be built. By this consensus the citizens legitimate a form
of government, that, in turn, by virtue of this legitimacy, must act responsibly with respect to the
mandate by which it has been legitimated. At the same time the citizens, having the possibility to
negotiate their contract, must in turn act responsibly with respect to the political community to
which they became subjects of by virtue of its legitimacy. Thereby the civil rights and obligations
are born.
In this context I find it necessary draw attention on the fact that when I say participation I
refer to at least two dimensions of it
46
: a) active participation, calling for actual, involved
participation by the individuals and groups in the governing process affecting their lives
47
, b)
passive participation, involving the fact that lack of action is a form of answer or of evaluating the
social contract at a given time, a form of acceptance of the status quo
48
. Both participation forms
respect the rules of the game
49
, they involve legitimacy, responsibility and accountability.
Correlating the way in which individuals make value judgments with respect to the
government, to the way in which they act, Thomas Janoski and Brian Gran advance the following
citizen typology, that I personally find very useful to understanding the way in which the
negotiation and renegotiation mechanism of the contract between the individuals and the political
community in the edification of the rights and obligations, operates: the incorporated citizen- he is
part of the elite, or at least feels himself to be, actively supports the party interests, belongs rather
to the power than to the opposition, has a great deal of trust in the leaders, operates somewhat
selflessly as benefits by the very fact of being part of the political system in power; the active
citizen- takes part in several political activities, is interested in the other members of his group, at
many times he is in conflict with the establishments elites, may belong to a party or to an
organization, he tends to be in the opposition, is to a certain extent radical, reformist, altruist; the
deferential citizen- non-participative, accepts the authority of the exiting elites, does not
internalize the goals of the party or the state, easily manipulable, has the tendency for trusting the
leaders as he has the impression that they work at his advantage, leaves political participation at
the hands of the elites, but goes to vote and contacts the politicians if he/she needs to; the cynic
citizen- he/she acts similarly to the active citizen, but does not participate as he completely lacks
confidence, is rather passive and very critical; the marginal citizen- he/she is detached, alienated
with the system due to lack of material resources and power, stressed, votes rarely and
45
I refer to the representative government in particular.
46
Janoski speaks of the legal status of being- represented by civil rights that involves a rather passive
position, and of the legal status of doing- represented by the political rights, entailing a meta-right of creating rights
and calling for an active position by the citizen. He also reminds of Hohfelds classification of rights- freedoms,
claims, powers and immunities, situating participation among the powers. For further details see Janoski, Thomas,
Citizenship and Civil Society: A Framework of Rihts and Obligations in Liberal, Traditional and Social Democratic
Regimes,(Cambridge: Cambridge University Press, 1998), pp. 29 30;
47
Starting with an informed and responsible vote and continuing with an active involvement in voluntary
activities, ONG activism or various causes, lobbying, protesting etc..
48
The leaders actions do not displease me so much as to take steps in this respect and I do not act though I
have the necessary instruments to do so to my disposal.
49
The fact that I do not participate does not place me outside the contract, it only makes me subject to
obligations and duties in the negotiation of which I did not want to take part.
stochastically, oriented towards family and friends (the immigrants); the opportunistic citizen-
makes rational decisions concerning the fulfillment of short term material interests, participates
only when being directly interested in doing so, more of a free rider.
50

The typology above draws attention on an aspect which I find of the outmost importance,
namely the symbolical construction of citizenship, more precisely the fact that citizens, in relation
to the state, form a personal concept with regard to the rights and obligations they perform
51
.
Therefore, the construction of citizenship is at many times symbolical and indirect, citizens being
indirectly informed and interested on what is happening within the political sphere, but acting
depending on the way in which they personally perceive and interpret the information which they
encounter. This symbolic construction of citizenship does not weaken in the very least the
responsibility, either of the citizens, or of the members of the government.
The way in which citizenship squares and embodies itself in a set of rights and obligations
represents a reflection of the wishes of the members of a community, transmitted through the
mechanisms that guarantee their participation in the decision making, more precisely the guarantee
of the participation rights. Therefore, three aspects of citizenship- the belonging to a democratic
community, the rights and obligations deriving from the membership status and the participation in
the political, economic and social processes taking place within the respective community- they
combine in various forms to generate the social layout specific to a certain moment.
The dynamics of the concept of citizenship. As resulting from the issues discussed so far,
citizenship is a complex, multidimensional concept, that, beyond the theoretical approaches, has a
very specific practical finality resulting from the creation of an instrument devised to ensure a
good government, on the basis of the participation of the citizens in the decision making process,
government that is embodied in the guarantees of the civil, political, social and participation rights
and through the promotion of the policies resulting from the contract between the citizens and
those in power.
The instrumental quality of citizenship has to do with the fact that it is not an immutable
essence, that we should maintain and pass on. It represents a historical construction
52
, a product
found at the intersection between the various perspectives on human nature, on the types of
political communities, and of relationships that can be established between the individuals and the
political communities, on the materialization of this relationship in rights and obligations, on the
source and nature of legitimacy etc.. Therefore, we can identify, for the moment, at least two
practical dimensions of the concept: one derived from the fact that the very comprising elements
can take various forms, the second resulting from the establishment of directed relations between
these components. Various arrangements thereby emerge, that are best grasped in the main
theories of citizenship. At the same time, theories find themselves in a continuous reconstruction
process so as to be able to offer the best possible explanation to the way in which the concept of
citizenship evolved- therefore they are dynamical as well.
A historical retrospective on the development and edification of citizenship brings out the
fact that it is fundamentally bound to the various democratic organizations of the society.
Participation is therefore bound with citizenship, it is guaranteed through the civil and political
rights and becomes, at the same time, both an internal factor (through rights) and an external one
(as the substance of citizenship is subject to the peoples sovereignty principle) that determines the
50
Janoski, Thomas and Gran, Brian. Political Citizenship: Fundations for Rights, in Isin, Engin F. and
Bryan S. Turner, eds., Handbook of Citizenship Studies, (London: Sage Publication 2002), pp. 39 - 41;
51
The case of the ritualization of the vote in 19
th
century France in Schnapper, Dominique and Bachelier,
Christian Ce este cetenia? (What is citizenship?), ?, (Iai Polirom: 2001), pp. 97 98;
52
Schnapper, Dominique and Bachelier, Christian. este cetenia? (What is citizenship?), (Iai Polirom:
2001), p. 95;
dynamics of the construction of the concept. In representative democracies, participation involves,
in a sketchy representation, a mere electoral mechanism, but that allows citizens to control the
governing process. If the elected govern well, the citizens have the possibility of reiterating their
legitimacy with the next elections, granting them their vote anew, while if their government is
poor, they loose their capacities along with the elections. Outside the electoral process, the citizens
can resort to a multitude of ways to influence decision making: trade unions participating in the
negotiations with the government, NGO militating for various causes etc..
As such, we are speaking of efficient, or less efficient governments depending on their
actual capacity to guarantee citizens rights and obligations, capacity dependant on the resources
administration, on the extent to which those in power abide by the rules of the democratic game,
on the ideology at hand, on the citizens civic culture and on the way in which they take part in the
edification of the government power etc., therefore on a multitude of factors that shape the context
in which that political community acts.
By way of conclusion.
What changes? The following do change: a) individuals- on the one side, with respect to
assuming one of the understandings of human nature, on the other, the product of the social
construction of the individuals changes, while, last but not least, individuals have an impact on the
dynamic of citizenship by the way in which they relate to it in the participation process, and I refer
here especially to the symbolic construction of citizenship; b) political communities- they can be
more or less effective; c) the nature of the inclusion relationship, more precisely the criteria by
which the citizen status is granted and, implicitly, the scope of citizenship; d) rights and
obligations- they vary a great deal from one state to the other, precisely because they are the
product of a complex of factors depending much on the economical, political, and social context in
which they are negotiated; e) the theoretical perspectives- they always face new challenges, such
as the new right, the new left, the feminist, multiculturalism, environmentalist, movements, post-
modern theories that stress identity, sexuality, life-stile etc..
What causes change? Citizenship has a mainly instrumental value. By its means the
relationships between individuals and a political community are regulated, the purpose being the
creation of a good government. A good government is a government by the people and for the
people. Therefore, citizenship represents the reflection of a permanent adaptation to new contexts-
the passing from the traditional legitimacy of the government to the legal-rational one, the
industrialization, the emergence of the state, the recent challenges contesting the organization of
the state, the various social movements such as the slave liberation movement, the feminist
movement etc..
How does change take place? As it is directly bound to the democratic regimes, the
reshaping of citizenship takes place by the abidance by the rules of the democratic game, entailing
that the people are the owner of sovereignty and, by virtue of this fact, those entitled at most to
rule, hence to self-government. The effective enforcement of this principle occurs through
representation and direct participation in the civic and political community. As such, the driving
force of change consists in safeguarding the participation mechanisms, fact that has major impact
both upon the individual (the awareness of the possibility to participate is in itself empowering,
while the symbolic edification of citizenship takes the shape of various types of action), and upon
society as a whole (participation, be it active or passive, translates into equal rights and obligations
for all the citizens).

From a dynamic perspective on citizenship, it becomes evident that it is a regulatory
instrument of the relation between individuals and the political community, a relation which is
meant to assure a good government or those being sovereign and which are the legitimating agents
of the governing power, for the citizens. In conclusion, a clear identification of the component
elements of citizenship that can regulate a stable and solid equilibrium regarding citizens
interests at a given moment it is absolutely necessary in order to provide a better understanding of
the historical evolution of citizenship and also in order to enable the researcher to anticipate future
transformations of the concept.

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COMPREHENSIVE COMMUNICATION AND THE QUALITY
OF INTERPERSONAL RELATION
BUCHAREST STUDENTS BEHAVIOURAL PATTERNS
IN INTERPERSONAL COMMUNICATION

Elena NEDELCU *

Abstract
The first part of this paper will deal with the quality of interpersonal communication in a
world in full process of technologization globalisation. Without underestimating the benefits of
information technology and plethoric communication we outline the unwanted impact they have
when used excessively and exclusively in interpersonal communication. In the second part, we
will talk about the connections between the quality of interpersonal relation and the behavioural
options of the interlocutors in communication. We will show that achieving a high relational
coefficient is an aspect conditioned by practicing comprehensive communication, and empathic
listening. The third part synthesises the results of a social survey based on questionnaire. The
surveys goal was to find the behaviours of Bucharest students in their interpersonal
communication and to find the way they perceive the quality of communication in Romanian
society. It emphasises that in Romanian society the un-comprehensive behaviours are at all levels
of society, which limits, blocks, distorts communication, maintaining a general low relational
coefficient. Bucharest students experience an emphasised feeling of limitation. This restricts their
freedom of expression, suffocating their aspiration to profound first-rate communication.

Key words: ,,tautism, interpersonal communication, relation coefficient, comprehensive
communication, empathic listening

Introduction
Communication from Explosion to Implosion / Are We Happier in the
Society of Communication?
Society, as the sum of human interactions, of intricate networks cannot be imagined outside
communication. Human relations are possible and negotiated through communication. Special
studies show that out of the 24 hours, we communicate for 11 hours
1
. We could say that we exist
through each other as we communicate. We are constantly facing various problems and in order to
solve them we must communicate.
No matter what the frame of reference in communication is, the quality of the inter-human
relations relies quite a great deal upon the quality of communication. Too often used to explain the
successes and failures of interactions, communication created the illusion that it is a universal
cure-all. Thus, we fail to see the importance of other factors (economic, psychological, and
cultural) in shaping the human interactions.
*
Lecturer Ph. D. Nicolae Titulescu University Social and Administrative Sciences Faculty (email:
[email protected])
1
Giblin, Leslie, The Art of Human Relations Development, Curtea Veche Publishing House, 2005, p.28
Elena Nedelcu 257
On the other hand, even if it is not a universal cure-all, the importance of the quality of
communication shouldnt be underestimated: it plays a major role in personal development as well
as society. That is exactly why the analysis of the way in which the quality of communication
evolved was of interest for many researchers.
To what extent we can talk about an increase in the quality of communication in todays
society compared to traditional society is a question that raised numerous polemics. Contemporary
society is facing two apparently paradoxical phenomena: on the one hand, the boom of
communication forms and technologies, the emergence of new dimensions in communication, new
global dimensions, and on the other hand, a deficit in the quality of interpersonal relations which
often remain embrionary, superficial, conventional. Authors like L. Sfez, A. Mehrabian, M .
Wiener associate the plethoric character of contemporary communication with superficiality.
The development of communication, technologies in general, and communication technologies in
particular, was not doubled by increasing quality, authenticity of the interpersonal human
interaction. The information society filled with its technologies has contradictory effects on the
personal development of individuals: it facilitates communication at global level but it steals the
time and diminishes the capacity to interact in a sustainable qualitative way. The French
sociologist L. Sfez diagnosed with tautism this society oversaturated by information and means
of communication, but poor in relational nutrients
2
He created the concept of tautism by
combining the meanings of the two words Tautology (the useless repetition of the same idea,
but in different words) and autism (the pathological state characterized by losing touch with
reality). Tautism is the disease of a world in which a lot is being said, but less and less is
understood. It is a world in which the technological boom in communications is also responsible
for the implosion of communication.
3

In other words, although todays social actors have more instruments to communicate with,
and even if they communicate more than ever before, the depth of the dialogue and the quality of
the relations have considerably deteriorated. The multitude of communication instruments feed the
idea that we are free like never before to communicate. In reality, these mediums are limited and
limiting.
Television, for instance, with its variety of means of communication has created the illusion
that it is an objective observer of reality. The audience, seduced by the TV image, has identified
itself with the fragmented message transmitted by television, becoming just as limited as the
message. (L. Sfez, 1988). Moreover, one of the first drawbacks of mass communication is that it
significantly reduces the non-verbal dimension of communication.
The modern means of communication (phone, internet, etc.) have limited means for non-
verbal communication. This leads to more talking, but with less information transmitted, thus
making relations more superficial. The above-mentioned thinkers consider that the internet and
online communication tend to distort the relations and to isolate individual
4

By significantly reducing the non-verbal dimension of communication, the intermediate
technologies impoverish and limit the human interaction. The artificial communication is more
superficial, lacking a certain amount of savour and picturesqueness. On the other hand,
superficiality and lack of consistency in communication is also due to an increase in difficulty
when it comes to building common meanings in such a diverse world. Todays society is not just a
society of diversity and individuality, but also one of confusion and disorientation. When talking
about the confusion of values Lucien Sfez was bemoaning the destruction of consensus and of the
2
Sfez, L, Critique de la communication, Seuil Publishing House, Paris, 1988. ,
3
Sfez, L., Comunicarea, Institutul European, 2002, p.19
4
Mehrabian, A. & Wiener, M., "Decoding of inconsistent communications", Journal of Personality and
Social Psychology, SUA, 1967)
fusion of the historical and the emotional in todays world. (Lucien Sfez, 2002)
Gianni Vattimo outruns L. Sfez. He emphasizes and salutes the present explosion of rationalities
and differences which have an indisputable liberating role and which makes impossible the idea of
a unique, homogenous reality. The variety of communication technologies gives birth to a
multiplicity of interpretations, and points of view.
There arent only one or two interpreters like in the Middle Ages, when there were only the
Pope and the King. Today we have CNN, but also Fox, and various other TV channels,
newspapers (....). This multiplicity (chaos) contributes to the destruction of absolutism. The human
dialogue replaces the absolutes. The condition is to face a real multiplicity, not a fake one
3

In Vattimos opinion, postmodernism represents a period of transition from unity to
plurality. It is the product of communication development, which led to the discovery of historicity
and the contingency of the value systems, and this disorientation, instead of being perceived as a
deadlock should be considered the premise of freedom itself.
4
Going back to L. Sfez, we must
admit that the stake of his book, A Critique of Communication, is very up-to-date: genuine
communication - which should ensure social cohesion - is threatened today by artificial
communication, lacking content and presenting a sterile theoretical discourse. Lucien Sfez
considers that the solution lies in a return to the humanist hermeneutics: Against technological,
artificial, transnational, and faceless communication there is only interpretation. So, lets practice
together translation, commentary, searching critique. Lets interpret. (L. Sfez, 2002). The
humanistic approach to communication can explain the human beings need for real and profound
communication, the need to develop quality inter-human relations.

2. The Quality of the Relation, Behavioural Options in Communication, and
Empathic Listening
2.1. What is RQ (quality of relation/ relation coefficient)?
Paradoxically, the so-called society of communication has created a system of relations
which does not answer the human beings need for profound and genuine communication. J.
Salome notices that the relational system which dominates our culture and which is called the
SAPPE system, favours the dominant/dominated relations thus inciting to regaining the power or
to complying. It leads to oppositions and confrontations, cultivates dependence, mistrust and even
doubt/suspicion of each other.
Against all moralising attempts coming from religion, socio-cultural codes or personal
ethics, most of the time, this system pours a lot of violence and self-inflicted violence. In most so-
called civilized countries it looks like there is an implicit culture of non-communication and
human relations which does not favour the development of a high coefficient of relation for most
individuals neither on family - school education level, nor social life.
5

In such a society the individuals chances to have a high RQ are reduced as long as neither
school, nor society dont prepare him for vivid, healthy relations. The above-mentioned author
considers that under these circumstances the RQ could actually be developed through a personal
3
Andrei Marga in Dialogue with Gianni Vattimo, Verso, cultural by-monthly magazine, 15

March -15 April 2007
4
Il pensiero debole et la fin de la mtaphysique, Une interview avec Gianni Vattimo par Marin Mincu,
Paradigma, Nr.2-3, June-July 1993, according to Ovidiu MORAR, Postmodernism: Two Operational Concepts?
5
Jacques Salom, Minuscules aperus sur la difficult d'enseigner, Editions Albin Michel, 2004, ISBN: 2-
226-15337-3
Elena Nedelcu 259
step towards raising awareness and through an effort to go deeply into the personal relational
dynamics. What is actually RQ?
RQ is a new concept which shouldnt be mistaken for IQ or EQ. Maryse Legrand - the
French clinical psychologist considers that there is relational intelligence RQ, different from
both rational (IQ) as well as emotional (EQ) intelligence, and can be evaluated in two directions:
in relation to the self and in relation to the others. A quality relation, with a high RQ presupposes
the intrinsic presence (existence) of cordiality, goodwill which make possible the respect for the
others alterity no matter who that is.
RQ is connected to the individuals more or less developed capacity to propose for himself
or for the others, relations that actively contribute to the growth and development of both. We
could say about an individual that has an increased RQ when we notice that it causes and develops
energetic relations that are creative and stimulating for the others and for self. We could say that
RQ is low when it triggers infantile relations, energetivore /toxic messages, alienating for the other
and for the self.
6

RQ is the art of creating mutual rewarding relations. Within a quality relationship we can
see the human beings need to be accepted, to express himself in his singularity, to be recognised
in his oneness and alterity, the need to feel appreciated. It is that kind of relation that ensures the
development, the fulfilment, and the openness of the human being. At the same time, according to
the French writer Olivier Clerc, RQ is about the personal capacity to manage disagreements and
conflictual situations other than with violence.
In such a relation, our physical, affective and relational needs can be recognised/accepted
and heard which doesnt mean they are fulfilled. Our need for relations refer to our need to
express ourselves, to be listened to, to get attention, to be appreciated (to feel useful), to be
intimate with somebody (to be able to share personal secrets), to belong (to feel you are accepted
in a group), to influence (to contribute to the creation of something new).
,,The quality relation evolves within those positive meetings that tend to consolidate personal
security, the feeling of a dignified existence and the certainty of personal value. At the same time, such
a relation will stimulate openness, interest, curiosity (the taste) for the others. RQ will value the desire
to be oneself when meeting another person, thus being interested to give the best.
7

2.2. The Comprehension Behaviour and the Quality of Interpersonal Communication

The quality of interpersonal relation is built upon the attitudes the speakers have when
communicating. Some attitudes also favour attitudes that hinder the increase of the relational
coefficient.
For communication the optimal situation is when the one that expresses himself does not
feel judged, analysed, interpreted, guided by tips, manipulated, harassed by questions, but feels
just listened to
8
. This is an essential condition for the increase of RQ.
In defining it, we can distinguish five fundamental principles: the principle of non-
interpretation, non-evaluation, non-counselling or of the no-help, non-systematic questioning
9
. In
other words, if a person wishes to allow the interlocutor to express himself in a genuine manner, he
should avoid interpretations, judgement, advice, interrogation.
These attitudes narrow and minimise the speakers expression or even more, they channel
the discourse, belittle and manipulate it. They generate interactions based on status differences,
6
Jacques Salom, Minuscules aperus sur la difficult d'enseigner, Editions Albin Michel, 2004.
7
J. Salome, Relation daide et formation lentretien, Septentrion, p. 27
8
Jean-Claude Abric, Psihologia comunicarii, Polirom, 2002, p. 49
9
Jean-Claude Abric, op. cit., p.41-49
on unequal status (interpreter-interpreted, evaluator-evaluated, counsellor counselled,
investigator-investigated) blocking communication or giving birth to counterattack and aggressive
behaviour. These are attitudes that deteriorate the quality of the relation, thus the low RQ. The
relations created in such manner are ignorance, dependence, or inferiority relations. These
relations favour only one of the interlocutors in the detriment of the other. Or, as weve shown
before, a quality relation is a positive relation which answers the human beings need to express
oneself, to be listened to, to get attention, respect, to be valued. Unfortunately, most of the time,
these needs are not satisfied.
C. Rogers noticed that in interpersonal mutual communication there is a natural tendency to
judge, approve, disapprove, tendency that can intensify in situations that are loaded affectively and
emotionally. The stronger the feelings, the lower the possibility of a real feedback between
interlocutors; there will be only two ideas, two feelings, two parallel judgements which
psychologically do not meet. They will reunite (meet) and the tendency to judge will be avoided
only within comprehensive listening, through the assimilation of the frame of reference and by
entering the other persons universe.
10

Comprehension behaviour means that one manifests interest for what the other says. It
means that one tries to understand, not to judge, evaluate, and interpret. Understanding is the only
type of attitude that focuses on the interlocutor, which creates a favourable relational atmosphere,
ideal for profound communication. Understanding the others words is not easy. Often we mistake
understanding for interpretation. Or understanding doesnt mean interpreting, only deciphering,
decoding the others words, looking for the reasons hes pursuing. So, let us learn to listen!
God gave us two ears and one mouth so that we listen twice and speak once. Thus, by
paraphrasing Marshall B. Rosenberg - the founder of non-violent communication let us give up
the jackals eras for the giraffes. While giraffes ears are big, attentive, open, they know how to
decipher the need behind the words, the jackal only hears critiques and answers to them with the
same coin leading to violence.
The jackals language is the expression of a biased relation considers the author it is a
relation based on waiting, control and guiltiness. So, let us go for the giraffes language, a
language of goodwill, of non-judgement/labelling, of empathy through which the real, deep needs
of the interlocutor are heard.
11
For this to happen we must show more interest in the other, we
must try to understand from his position, to discover what facts, words, events mean for him. This
presupposes an effort to overcome the self, to forget about the self at least for a few minutes, and
to focus on the other person.
Experience shows us that we know more about how to speak, and less about how to listen.
While the interlocutor talks, we do not think of what he tells us but what we will tell him, how we
will impress, convince, seduce. If we happen to listen, we do it through the filter of our own
values, feelings, principles, personal experience.
Comprehensive communication - considers C. Rogers refers to our attempt to create
communication bridges which allow the others to share their feelings, to share with us their
universe as they understand it.
I try to reduce my fears, anxiety and need for protection, in this way allowing the members
of the group to express themselves freely. I try to adopt an understanding attitude sensitive enough
to see the other as he sees himself, according to his perceptions and feelings. Moreover, Im ready
to admit what is real in me and in the other without wishing to arrange things at all costs. To listen
10
Carl Rogers, Le developpement de la personne, Dunod, Paris, 2005, ISBN 2100492381, p. 215-221
11
Marshall B. Rosenberg, Nonviolent Communication: A Language of Life, Elena Francisc Publishing,
www.efpublishing.ro
Elena Nedelcu 261
to myself and to listen without feeling the need to set things right, to place individuals in a pattern,
to encourage them to take the way I see them walking on.
12

The psychological and morale premises of comprehension are self-acceptance, courage, and
generosity, abandonment of self-defence mechanisms by every interlocutor, or at least some of
them. The comprehension behaviour has a double dimension: one refers to the connection with the
self, the other to the connection to the others. In order to accept the others and to have quality
relations with them, firstly one must be honest to oneself, accept and value oneself. The one who is
unhappy with oneself cannot accept and understand the others either. The one who underestimates
himself, the complicated one, is a hungry ego, wicked, hes like a bad dog that bites
13
. We
cannot expect him to be generous with the others, to understand the others. Or, as J.Salome
noticed, to be a good partner, one must first of all be a good partner to oneself.
14

We will never know how to change and how to relate to the others as long as we cannot accept
ourselves in a profound manner. This is the only way to make relations grow and evolve easily.
My intervention is more efficient when I listen to myself and I accept myself and I can be myself.
Under these circumstances, the individual feels more free in expressing himself and tends to
abandon all forms of protection
15
. Practicing comprehension needs a lot of courage and generosity:
courage because by entering anothers universe there is the chance to be influenced by his
perspective and to change yourself; generosity because, in order to understand the other one needs
to forget at least a bit about oneself and to devote oneself to the other.
Comprehension brings immeasurable benefits to communication, personal development and
quality of relation. The defensive distortions of communication (dishonesty, exaggerations, lies,
hypocrisies) considers C. Rogers stops with an amazing rapidity when people realise that the
interlocutor only purpose of is to be understood, not judged, criticised, interpreted, etc.
When one of the parts abandons the defensive attitude, it opens the door for the other part to
do the same thing next time, thus making progress in genuine communication. This procedure
gradually leads to real mutual communication, to a situation where I get to see that you perceive
things just as well as I do, and you see that I perceive the problem just as well as you understand it
from your perspective. (C. Rogers, 2004, p.220)
In one way or another, this comprehension enriches me, giving birth inside me to changes that
make me a different person. At the same time, the fact that I understand the other allows him to change.
When somebody understands deeply another persons feelings, it makes it possible for this one to
accept them inside. Feelings change inside that person too. (C. Rogers, 2004, p.16)
Paradoxically, the more I would be myself in all complex life issues, the more I would try to understand
and to accept what is real in my person and in the others, the more changes will happen.
I am convinced that an individual, the better understood and accepted he is, the more he
would give up the false protection he used to face life with and engage oneself in a progressive
evolution. (C.Rogers, p. 23)
The same author concludes that in order to create the optimal structure of communication -
which implicitly presupposes active listening or non-directive orientation it is essential to have a
special relational atmosphere, based on the following four components
16
.
The others unconditional acceptance is about the refusal of any kind of judgement
regarding what the other expresses and the acceptance of a possible silence of the other, the
12
C. Rogers, Le developpement de la personne, Dunod, Paris, 2005, ISBN 2100492381, p. 215-221
13
L. Giblin, The Art of Human Relations Development, Curtea Veche Publishing House, 2005 p.48
14
J. Salome, If I would listen to myself, I would understand myself, Curtea Veche Publishing House, 2002
15
C. Rogers, Le develppement de la personne, apud. R. Muchielli, Lentretien de face a face dans la relation
daide,ESF editeur, Paris, 2004, p.14-15
16
Jean-Claude ABRIC, 2002, The Psychology of Communication, Polirom, Iasi, pp. 51-53
acceptance of his words, the manner in which he expressed them or the fact that he doesnt want to
show a certain feeling.
The affable neutrality does not presuppose a passive attitude and cannot be built on the
investigators refusal to get involved. This person must get involved in communication without
judging, and his involvement must be positive and based on attention shown to the other, a kind of
disinterested interest.
Authenticity is an essential condition for the development of a favourable climate; the
interviewer (therapist) must be truly interested in what the speaker has to say. The authenticity of
the interest shown to the other makes us available for him, responsive to what he says. It is a sine
qua non condition of comprehensive listening.
Empathy is about sinking into the subjective world of the communication partner in order to
see the situation with his eyes. It is not necessary to transport yourself into the others shoes, it is
sufficient to feel in the same way as the other. Empathy is defined by two components: receptivity
to the others feelings and the verbal capacity to communicate this comprehension.
By mentally situating ourselves in the speakers shoes, it allows us to better understand the
motivation, the objectives, the mentality, and to react with full knowledge of the case. In order to
avoid confusions, J. C. Abric separated the concept of empathy by that of laissez-faire. Empathy
unlike laissez-faire characterises non-directivity and comprehensive listening in
communication, and these are active positions which need interior and exterior, verbal and
nonverbal complex activity from those who use them.

3. Bucharest Students Behaviours in Interpersonal Communication, and
their Perception of the Quality of Communication in Romanian Society
While studying the students behaviours in interpersonal communication and the perception
of the quality of communication in Romanian society we used our social survey with the help of a
questionnaire and focus group. There was a random sample of 300 students found in the
University premises and in the campus of the Nicolae Titulescu University (it houses students
from more universities in Bucharest). Subjects interviews and the data collection and processing
was made by a group of students from second year International Relations, under the supervision
of coordinators at the Centre for Information, Counselling and Professional Orientation of the
Nicolae Titulescu University.
The meaning students give to quality communication within a focus group (15 International
Relations students) was identified. The principles for such communication are dignity, respect for the
person/interlocutor, acceptance and encouragement of freedom of speech. Declarations/affirmations
regarding the quality of communication relation with various social categories (educators,
colleagues, acquaintances) were looked into.
At the same time, the present study took into consideration and compared certain data resulted
from other studies such as The Study regarding the Situation of Youth and Its Expectations. Diagnosis
2007 - ANSIT, TEJACO Project made by ISE, Leo Youth Project about youth lifestyle in big cities,
The Study about the situation of the youth in Romania-Pro-Youth (ASUB), etc.
The present study will analyse the extent to which the valorisation of communication by
young people - Bucharest students - is accompanied by the adoption of comprehension behaviour
in communication and a positive perception of the quality of communication in Romanian society.
Sociological studies (ANSIT, 2007)* show that young Romanians give a lot of importance
to communication, and relations with their peers. Thus, 80% consider that their relations with the
family are very important and 18,8% are quite important. When talking about relations with
friends, 43% consider them very important, and 44,6% pretty important. From the interactions
with the others, young people expect communication.
Elena Nedelcu 263
Bucharest students (see the Nicolae Titulescu University social study) consider that, in
their life, communication plays a major role. Most (86, 60%) of them value the quality of the
relation, comprehensive communication, considering that it is important (30%), even very
important (56, 6%), to understand their peers and, in return, to be understood by them (Table 1).

I. On how important is for students that their peers understand their feelings, ideas,
experiences:

Very important Important Not that important Unimportant
56,60% 30% 13,4% 0

During a conversation, 93% of the interviewed students feel they are listened to with a lot of
attention by members of family, 86% by friends, 45% by colleagues, and 35% by acquaintances.
Most of the students (91%) consider that family members and friends encourage them to express
their feelings and thoughts more than their colleagues and acquaintances. (Table II)

II. The degree to which interlocutors listen carefully

Very high degree High degree Low degree No degree
Friends 40% 46% 14% 0
Family members 60% 33% 7% 0
Colleagues 8% 37% 51% 4%
Acquaintances 2% 33% 62% 3%

A big percentage of students declare that they are interested in developing some empathic
attitudes in communication with their peers. Thus, 68% of the students intend to a high and very
high degree to understand the interlocutors perspective, his experiences, in other words, to
experience the empathic dialogue. A significant percentage, 24% of the students, try only at times
to set themselves in the interlocutors shoes (to understand the others position), and 8% don not
do it at all. (Table III)

III. The frequency with which students manage to set themselves in the interlocutors place /
to understand their perspective from their position:

Very often Often Sometimes Never
23% 45% 24% 8%

Most students declare that they listen to their interlocutor with a high and very high degree
of attention and encourage them to express their feelings and thoughts: family members (92%),
friends (89%), colleagues (71,5%), and even acquaintances (62%). (Table III.1)

III.1. The degree to which Bucharest students declare that they listen to their interlocutors /
encourage them to express themselves:

Very high High Low No degree
Friends 60% 29 % 11% 0
Family members 68% 24% 8 % 0
Colleagues 16,5% 55% 28% 0,5%
Acquaintances 10,5% 51,5% 31% 7 %
Bucharest students consider that in Romanian society most people (62%) show little interest
or no interest at all in empathizing with their peers. They consider that only in approximately 38%
of their dialogues they tried to guess the others mood, to understand their position by trying to
take their place. (Table IV)

IV. The frequency with which students feel that their interlocutors manage to guess their
mood:

Very often Often Sometimes Never
18% 20% 54% 8%

In conclusion, students perceive themselves as more empathic than many of the people they talk
to. They feel that they understand their peers more than their peers understand them: 70% of them
consider that they listen carefully or very carefully to their colleagues; less than half of the
students feel that their colleagues and acquaintances listen to them.
On the other hand, we notice the existence of a significant difference between the students
aspiration towards comprehensive communication and practicing comprehensive
communication. Although 68% of the students declare that they are preoccupied with the practice
and the development of active attitudes, comprehensive in dialogue, there is still a large percentage
(43,9%) who manifest, to a certain extent, judgemental attitude, the need to label,
condemn/encourage in their relation to the interlocutors. 50,4% are used to judging people to a
little extent, and only 5,7% declare that they never do this. (Table V)

V. The frequency with which Bucharest students judge/condemn the words/actions of the
interlocutor:

Very high High Low Never
11,5% 32,4% 50,4% 5,7%

Bucharest students consider that they judge their interlocutors less than their peers do it. In
conversations, they feel judged, classified/analysed to a high and very high degree by all
categories of interlocutors: especially by family (58% of them), and by friends (46%), but also by
colleagues (35,5%) and educators (24%). (Table VI)
If we keep in mind that they feel less judged by educators than the other interlocutors, we
might think that they have a better relation of communication with them. However, after talking to
the students from Nicolae Titulescu University- International Relationship Faculty within a
focus group, we draw some different conclusions: their relations to the educators are most of them
professional, formal-official, cold, distant. By the nature of the relations they have with the
students, educators follow the scientific and educational performances of their students, and they
do not do any other kind of evaluation.
Most of them do not get involved in friendly, personal talks with the students. The
frequency of such discussions is very low. Although some think these talks might help, students
are reluctant to starting such conversations with their educators. Students do not really perceive
their educators as friends or colleagues with more professional and life experience. They consider
the relation to their educators as a distant professional relation. The shorter the distance perceived
in connection to the others, the more they feel judged. Students consider that they are labelled, and
evaluated, more often in their informal relations rather than in the formal ones. In other words, in
relation to them, the others are indifferent. They do not care (as a rule in formal relations), or if
they care (family, friends) they do not know how to show it, do not know how to communicate in
Elena Nedelcu 265
a comprehensive way: they judge them, label them, condemn, proposing them an unequal relation,
which is detrimental to them. Alternatively, in such a situation, the possible consequences would
be the blockage of communication or the orientation by selection of the interlocutors speech. (C.
Rogers, Mucchielli, Salome, J.C. Abric) If they are harshly judged they feel offended and do not
speak anymore. So, communication is blocked. When it comes to positive evaluation, because they
do not want to disappoint their dialogue partner there is a so-called orientation by selection of
the interlocutors discourse.
In conclusion, students feel encouraged to freely express their opinions, feelings,
experiences (restricted in their intention to communicate in a profound manner) both in formal
relations, within which they are faced with cold/indifferent attitudes, and in informal relations,
within which they are faced with evaluative/judgemental attitudes. In other words, students suffer
from the existence of a great deficit in quality of their relation, and communication, at all levels.

VI. The degree to which Bucharest students feel judged by various categories of
interlocutors:

Very high High Low No
Family 30% 28% 28,5% 13,5%
Friends 12,5% 33% 40% 19,5%
Colleagues 8,5% 27 % 55% 9,5%
Educators 4% 20% 35 % 41%

Students consider that most of their interlocutors, be it family members, friends or
colleagues, all interpret their opinions, feelings, decisions, by sharing with them their own
meaning. (Table VII)
Interlocutors do not put forward or do not manage to understand what significance, what
meaning, what importance some things, events have for students. They do not manage to
understand the perspective they see things from.
Most students (74%) consider that friends sometimes interpret their gestures and assertions to a
very high and high degree. 65% of the students consider that family has the same attitude; 54,5% of
those interviewed blame their colleagues for interpretation, and 46%, their educators. Students consider
that in Romanian society most people are prisoners of cultural stereotypes, mentalities, ways of
thinking, and lifestyles that they cannot transcend in order to empathize with the others.

VII. The degree to which students consider that their messages are interpreted (as
interlocutors they give personal meaning):

65% Family 31,5% 33,5% 17,5% 17,5%
74% Friends 18,5% 55,5% 22% 4%
54,5% Colleagues 10% 44,5% 33,5% 12%
46% Educators 12,5% 33,5% 33,5% 20,5%

We notice that there are meaningful differences regarding the perception of the relation of
communication between the students with good educational achievement and the students with
lower educational achievement. If we compare the low educational achievement students with the
good achievement students we notice that a significant percentage of the latter tend to feel less
judged and interpreted by their interlocutors. In other words, they have a better perception of the
quality of the communication with the others.
Thus, more students with low educational achievement (61%) feel judged by family
compared to the students with good educational achievement (55%). While 52% of the students
with low educational achievement declare that friends tend to judge them, only 40% of the
students with good achievement think the same. While 40% of the students with low educational
achievement consider themselves judged by their colleagues, only 30% of the students with good
achievement are in the same situation. There are significant differences between the two categories
of students when it comes to the perception of the interpretation behaviour of the various
interlocutors. The ones with good achievement feel less interpreted in relational communication
than others. (See Tables VIII and IX)

VIII. The extent to which students consider that their messages are interpreted / Group of
students with good educational achievement:

Very High High Low No
56,% Family 10 (33.33%) 8 (22.66%) 9 (30%) 2 (6.66%)
70% Friends 7 (23.33%) 14 (46.66%) 8 (22.66%) 0
53% Colleagues 2 (6.66%) 14 (46.66%) 10 (33.33%) 2 (6.66%)
50% Educators 5 (16.66%) 10 (33.33%) 11 (36.66%) 4 (13.33%)

IX. The extent to which students consider that their messages are interpreted / Group of
students with low educational achievement:

74% Family 7 (30.43%) 10 (43.47%) 1 (4.34%) 3 (13.04%)
78% Friends 3 (13.04%) 15 (65.21%) 5 (21.73%) 0
56,5% Colleagues 3 (13.04%) 10 (43.47%) 8 (34.78%) 2 (8.69%)
43,5% Educators 2 (8.69%) 8 (34.78%) 7 (30.43%) 6 (26.08%)

When it comes to the habit of giving advice, or solutions to the dialogue partners, we notice
that there are big differences between the categories of interlocutors: 80,5% of the students declare
that family, and 74% declare that friends are in the habit of giving them advice, to a high and very
high degree. Only 36 % of the students declare that their colleagues are in the habit of giving
advice. (Table X)
We notice that parents and friends feel most entitled to give advice.

X. The extent to which interlocutors are in the habit of giving advice/solutions:

80,5% Family 35% 45,5% 8% 3,5%
74% Friends 31% 43% 23,5% 2,5%
36% Colleagues 6% 30% 44,5% 19,5%
22% Educators 0 22% 50,2% 27,8%
Between 65% and 60% of the students feel that during conversations they are not allowed to
express freely, that both family members and friends are in the habit of directing, channeling the
discourse. (Table XI)

Elena Nedelcu 267
XI. The extent to which the interlocutors intend to redirect the conversation (in a direction
of their choice):

Family 65% 25% 40% 35% 0
Friends 60% 13% 47% 29% 11%
Colleagues 33% 4% 29% 48% 19%
Educators 42% 10% 32% 36,5% 19,5%

The paradox is that most students trust, feel listened to and understood by family members,
but at the same time they feel judged, interpreted, rechanneled by them. 65% of the interviewed
students declare that, within conversations with family, they feel interpreted to a high and very
high extent. 58% of them feel judged to a high or very high degree. 65% consider that their
discourse is redirected to a high or very high degree, and 81% consider that they are given advice-
solutions from family to a very high and high degree.
Because they trust and perceive family as having good intentions, thats the place students
feel listen to and understood. Yet, in most cases, its about a different kind of understanding,
different from the comprehensive one, an type of understanding automatically given,
understanding as symbiosis of love and good intentions of the family for its members.
It is about understanding that allows judgement, interpretation, counselling, and
rechanneling of the interlocutor because it is well-intentioned.
There are solid preconceptions in Romanian culture about what it means to educate, to
communicate, and to relate to in a family. Understanding the young people is often mistaken for helping
them, supporting them all their life, giving advice, even rechanneling them. According to Romanian
mentality, perpetuated from one generation to another, giving advice/solutions to ones own children,
even judging them is a form of permitted moral support, even welcome proof of love.
This explains the fact that young people have a higher degree of acceptance when it comes to
interpretation, judgement and counselling from family, as opposed to other social categories. These
are attitudes often considered somehow normal, being the result of care, love, and best intentions.
On the other hand, these are attitudes and mentalities which raise the risk for development
of dependence relations between child-parent, and point the child in a wrong disadvantageous
direction.

Conclusions
The main conclusion of the first part of the present paper is the existence of a correlation
between the quality of the relation (RQ) and the behavioural options in communication.
More accurate, the growth of the relational coefficient, of the quality of the interpersonal relation
asks for the adoption of an honest, open, comprehensive attitude in the process of communication
at least by one of the interlocutors.
Regarding Bucharest students attitudes in communication and the way in which they perceive
the quality of communication in Romania, we can draw the following conclusions:
Most Bucharest students (86, 60%) value the quality of the relation, and comprehensive
communication. They consider that it is important (30%), even very important (56,6%) to have a
sincere and profound communication, to understand their peers and, in return, to be understood by
them. On the other hand, the study identifies the existence of a significant discrepancy between the
aspirations of the students towards comprehensive communication and putting into practice the
requirements of comprehensive communication. Although most students (approximately 70%)
declare that they want to practice and to develop active, comprehensive attitudes in dialogue, a
significant percentage of them admit that, in practice, they dont manage to do it. Thus, only 5,7%
declare themselves comprehensive, asserting that they are not in the habit to judge, interpret, channel
their interlocutors, while 50,4% state that they are in the habit of doing this to a little extent.
There is a large percentage of students (43,9%) who admit that in effective communication they
show to a greater or lower extent uncomprehensive judgemental, labelling, condemning/gratifying
attitudes in relation to their interlocutors.
But over 30% of the students dont intend to communicate comprehensively and almost 44%
would like to, but fail, which is not a happy situation. Still, in comparison with their interlocutors,
irrespective of the social category they belong to, the interviewed students perceive themselves as being
more interested, preoccupied with comprehensive communication. They have the feeling that they
understand their peers more than their peers understand them: 70% of them declare that they are in the
habit of showing attention to a high and very high degree to their colleagues. Less than half of the
students feel that their colleagues and acquaintances listened to them.
Bucharest students perceive the existence of low quality of communication in Romanian
society, at all levels, both formal, and informal. They feel the existence of an important deficit in
quality of communication in school, in the street, at work, as well as in the family or in the group of
friends.
They think that communication based on empathy, respect for dignity, appreciation of
individual, encouragement of freedom of speech is missing in most cases. Students also consider
that most people (62%) show little interest or no interest at all in empathising with their peers, and
declare that in only approximately 38% of the communication relations, the interlocutors showed
an active listening attitude. They tried to guess the state of mind, to understand their position by
taking their place.
Uncomprehensive behaviours are ubiquitous in Romanian society and people come across
them in most relations of communication. Students feel discouraged in freely expressing their
opinions, feelings, experiences both in formal, cold, indifferent relations, and in informal, warm,
close relation, but unfortunately impregnated with the habit of judging, channelling, interpreting.
They experience an emphasised feeling of limitation, restriction of freedom of speech, and
suppressing of aspiration towards profound quality communication. Although they show family
most trust considering that they understand them better than anybody else, comprehensive
listening is not very often encountered here either. But they show a higher degree of acceptance of
the uncomprehensive behaviour of the family compared to that of other social categories.
In the end, we can say that this study demonstrates once more the need for constant and
greater involvement of the agents of socialisation in delivering and putting into practice the active
comprehensive non-violent communication techniques in interpersonal relations. By taking into
account the fact that empathic comprehensive listening abilities can be learnt - if not inborn -, then
the educational process should set as central goal the shaping of these abilities.

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Elena Nedelcu 269
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http://www.ise. Project TEJACO/ ISE
CONSIDERATIONS REGARDING THE PROTECTION OF CLASSIFIED
INFORMATION IN ELECTRONIC FORMAT
Teodor TEFNESCU
*

Abstract
A common understanding of activity regarding the protection of classified information
based on standards and policies is critical. In this respect the classified information protection in
electronic format (INFOSEC) plays a vital role. In general terms, information security means
protecting information and information systems from unauthorized access, use, disclosure,
disruption, modification or destruction. The terms as information security, computer security and
information assurance are frequently incorrectly used. These fields are interrelated often and
share the common goals of protecting the confidentiality, integrity and availability of information;
however, there are some subtle differences between them. These differences cover primarily in the
approach to the subject, the methodologies used, and the areas of concentration. Information
security is concerned with the confidentiality, integrity and availability of data regardless of the
form the data may take: electronic, print, or other forms. The paper describes the activity
regarding the protection of classified information in electronic format (INFOSEC). The covered
domains are as follows: Legal framework; Security classification for information; INFOSEC
essentials; INFOSEC components.

Keywords: Classified information, INFOSEC, vulnerabilities, threats, accreditation,
certification

Introduction
Computer security can focus on ensuring the availability and correct operation of a
computer system without concern for the information stored or processed by the computer.
Governments, military, corporations, financial institutions, hospitals, and private businesses
amass a great deal of confidential information about their employees, customers, products,
research, and financial status. Most of this information is now collected, processed and stored on
electronic computers and transmitted across networks to other computers.
Confidential information about a business' customers or finances or new product line could
fall into the hands of a competitor, or a breach of security could lead to lost business, or even
bankruptcy of the business. Protecting confidential information is a business requirement, and in
many cases also an ethical and legal requirement.
For the individual, information security has a significant effect on privacy, which is viewed
very differently in different cultures. The field of information security has grown and evolved
significantly in recent years.

*
Ph.D. Eng., Ministerul Economiei, Comerului i Mediului de Afaceri, [email protected]
Teodor Stefanescu 271
Legal Framework
Below is a partial listing of governmental laws and regulations that have, or will have, a
significant effect on data processing and information security. Important industry sector
regulations have also been included when they have a significant impact on information security.
UK Data Protection Act 1998 makes new provisions for the regulation of the processing of
information relating to individuals, including the obtaining, holding, use or disclosure of such
information. The European Union Data Protection Directive (EUDPD) requires that all EU
member must adopt national regulations to standardize the protection of data privacy for citizens
throughout the EU.
The Computer Misuse Act 1990 is an Act of the UK Parliament making computer crime
(e.g. cracking - sometimes incorrectly referred to as hacking) a criminal offence. The Act has
become a model upon which several other countries including Canada and the Republic of Ireland
have drawn inspiration when subsequently drafting their own information security laws.
EU Data Retention laws requires Internet service providers and phone companies to keep
data on every electronic message sent and phone call made for between six months and two years.
The Family Educational Rights and Privacy Act (FERPA) is a USA Federal law that
protects the privacy of student education records. The law applies to all schools that receive funds
under an applicable program of the U.S. Department of Education.
Generally, schools must have written permission from the parent or eligible student in order
to release any information from a student's education record.
Health Insurance Portability and Accountability Act (HIPAA) of 1996 requires the
adoption of national standards for electronic health care transactions and national identifiers for
providers, health insurance plans, and employers. And, it requires health care providers, insurance
providers and employers to safeguard the security and privacy of health data.
Gramm-Leach-Bliley Act of 1999 (GLBA), also known as the Financial Services
Modernization Act of 1999, protects the privacy and security of private financial information that
financial institutions collect, hold, and process.
Sarbanes-Oxley Act of 2002 (SOX). Section 404 of the act requires publicly traded
companies to assess the effectiveness of their internal controls for financial reporting in annual
reports they submit at the end of each fiscal year. Chief information officers are responsible for the
security, accuracy and the reliability of the systems that manage and report the financial data. The
act also requires publicly traded companies to engage independent auditors who must attest to, and
report on, the validity of their assessments.
Payment Card Industry Data Security Standard (PCI DSS) establishes comprehensive
requirements for enhancing payment account data security. It was developed by the founding
payment brands of the PCI Security Standards Council, including American Express, Discover
Financial Services, JCB, MasterCard Worldwide and Visa International, to help facilitate the broad
adoption of consistent data security measures on a global basis. The PCI DSS is a multifaceted
security standard that includes requirements for security management, policies, procedures,
network architecture, software design and other critical protective measures.
State Security Breach Notification Laws (California and many others) require businesses,
nonprofits, and state institutions to notify consumers when unencrypted "personal information"
may have been compromised, lost, or stolen.
Personal Information Protection and Electronics Document Act (PIPEDA) - An Act to
support and promote electronic commerce by protecting personal information that is collected,
used or disclosed in certain circumstances, by providing for the use of electronic means to
communicate or record information or transactions and by amending the Canada Evidence Act, the
Statutory Instruments Act and the Statute Revision ActThant is in fact the case.
272 Lex ET Scientia. IT Series
Romanian relevant laws in this regard:
Law no. 51/1991- national security
Law no. 182/2002- the national standards concerning the protection of classified
information;
Law no. 544/2001 the access to public information.
Law no. 677/2002; 682/2002;506/2004;102/2005- the protection of personal data.
Law no. 8/1996; EO no 123/2005 the copyright
Law no. 161/2003; 64/2004- the computer crime.

Key Concepts
For over twenty years, information security has held confidentiality, integrity and
availability (known as the CIA triad) as the core principles of information security. Many
information security professionals firmly believe that Accountability should be added as a core
principle of information security.
Confidentiality is the term used to prevent the disclosure of information to unauthorized
individuals or systems. Confidentiality is necessary (but not sufficient) for maintaining the privacy
of the people whose personal information a system holds.
Integrity. In information security, integrity means that data cannot be modified without
authorization. This is not the same thing as referential integrity in databases. Integrity is violated
when an employee accidentally or with malicious intent deletes important data files, when a
computer virus infects a computer, when an employee is able to modify his own salary in a payroll
database, when an unauthorized user vandalizes a web site, when someone is able to cast a very
large number of votes in an online poll, and so on.
There are many ways in which integrity could be violated without malicious intent. In the
simplest case, a user on a system could mis-type someone's address. On a larger scale, if an
automated process is not written and tested correctly, bulk updates to a database could alter data in
an incorrect way, leaving the integrity of the data compromised. Information security professionals
are tasked with finding ways to implement controls that prevent errors of integrity.
Availability. For any information system to serve its purpose, the information must be
available when it is needed. This means that the computing systems used to store and process the
information, the security controls used to protect it, and the communication channels used to
access it must be functioning correctly. High availability systems aim to remain available at all
times, preventing service disruptions due to power outages, hardware failures, and system
upgrades. Ensuring availability also involves preventing denial-of-service attacks.
In 2002, Donn Parker proposed an alternative model for the classic CIA triad that he called
the six atomic elements of information. The elements are confidentiality, possession, integrity,
authenticity, availability, and utility. The merits of the Parkerian hexad are a subject of debate
amongst security professionals.
Authenticity. In computing, e-Business and information security it is necessary to ensure that
the data, transactions, communications or documents (electronic or physical) are genuine. It is also
important for authenticity to validate that both parties involved are who they claim they are.
Non-repudiation. In law, non-repudiation implies one's intention to fulfill their obligations
to a contract. It also implies that one party of a transaction cannot deny having received a
transaction nor can the other party deny having sent a transaction.
Electronic commerce uses technology such as digital signatures and encryption to establish
authenticity and non-repudiation.
Security classification for information
An important aspect of information security and risk management is recognizing the value
of information and defining appropriate procedures and protection requirements for the
information. Not all information is equal and so not all information requires the same degree of
protection. This requires information to be assigned a security classification.
The first step in information classification is to identify a member of senior management as
the owner of the particular information to be classified. Next, develop a classification policy. The
policy should describe the different classification labels, define the criteria for information to be
assigned a particular label, and list the required security controls for each classification.
Some factors that influence which classification information should be assigned include how
much value that information has to the organization, how old the information is and whether or not
the information has become obsolete. Laws and other regulatory requirements are also important
considerations when classifying information.
The type of information security classification labels selected and used will depend on the
nature of the organization, with examples being:
In the business sector, labels such as: Public, Sensitive, Private, and Confidential.
In the government sector, labels such as: Unclassified, Sensitive but Unclassified,
Restricted, Confidential, Secret, Top Secret and their non-English equivalents.
In cross-sectoral formations, the Traffic Light Protocol, which consists of: White, Green,
Amber and Red.

All employees in the organization, as well as business partners, must be trained on the
classification schema and understand the required security controls and handling procedures for
each classification. The classification a particular information asset has been assigned should be
reviewed periodically to ensure the classification is still appropriate for the information and to
ensure the security controls required by the classification are in place.

Infosec essentials
INFOSEC - all measures and structures for the protection of classified information processed,
stored or transmitted through communications and information systems and other electronic systems,
against threats and other actions that may endanger confidentiality, integrity, availability, authenticity
and non- repudiation of classified information, as well as any actions that may affect the functioning of
the information systems, no matter if they are accidental or intentional.
The INFOSEC measures cover computer security, transmission and emission security,
cryptographic security, as well as detection and prevention of threats to which information and
systems are exposed to.
Information in electronic format texts, data, images, sounds, recorded on storage devices
or magnetic, optical or electric supports, or transmitted as waves, tension, or electromagnetic field,
in the atmosphere or communications networks.
System of automated data processing ADPS - all interdependent elements including:
computing equipment, basic software products and applications, methods, procedures, and, if
applicable, the personnel, organized in such a way as to ensure the functions of storage, automated
processing and transmission of information in electronic format, and which are under the
coordination and control of a single authority. An ADPS can comprise subsystems some of which
can be in their turn ADPS.
Specific security components of an ADPS, necessary to ensure an appropriate level of
protection for classified information which is to be stored or processed in an ADPS, are:
hardware / firmware / software functions and characteristics;
operation procedures and modes;
accountability procedures;
control of access;
definition of an ADPS operation area;
definition of working stations operation area/remote terminals;
restrictions imposed by the management policy;
physical structures and devices;
means of control for personnel and communications.

Data transmission networks DTN all interdependent elements including:
communications equipment, programs and devices, hardware and software technique, methods and
procedures for transmission and reception of data and network control, and, if applicable, the
relevant personnel. They are organized to ensure the functions of transmitting information in
electronic format between two or more ADPS - or to allow interconnection with other DTNs. A
DTN may use the services of one or more communications systems; more DTNs may use the
services of a single communication system.
The security features of a DTN comprise: security features of individual ADPS connected,
together with all components and facilities associated to the networks - communication network
facilities, mechanisms and procedures of identification and labeling, access control, programs and
procedures of control and revision - necessary to ensure an appropriate level of protection for
classified information transmitted through DTN.
Local DTN - data transmission network interconnecting more computers or network
equipment, situated in the same perimeter.
Communications and informatics system - CIS - informatics system through which
information in electronic format is stored, processed and transmitted, composed of at least an
ADPS, isolated or connected to a DTN. It may have a complex configuration, made of more
interconnected ADPS and/or DTNs.
ADPS, DTN and CIS security - implementation of security measures at ADPS, DTN and
CIS in order to prevent or hamper extraction or change of classified information stored, processed
or transmitted through them - by intercepting, alteration, destruction, unauthorized access with
electronic means, as well as invalidation of services and functions, by specific means.
Confidentiality - to ensure access to classified information only based on the security
clearance, in compliance with the secrecy level of the information accessed and the permission
resulted from the enforcement of the need-to-know principle.
Integrity - interdiction to change - by deleting or adding - or to destroy classified
information without authorization;
Availability - to ensure the conditions necessary to find and easily use classified
information, whenever necessary, with the strict observance of its confidentiality conditions and
integrity;
Authenticity - to ensure the possibility to check the presumed identity of an ADPS or DTN user.
Non-repudiation - measure to ensure that after the emission/reception of information in a
secured communications system, the originator/beneficiary cannot misleadingly deny, that he
sent/received the information.
Security risk - probability that a threat or vulnerability of ADPS or DTN - CIS actually
exist.
Risk management - has as a purpose to identify, control and minimize the security risks and
it is a continuous activity meant to establish and maintain a security level in the field of
communication and information technology - (CIT) in an organization. Starting from risk analysis,
the threats and vulnerabilities are identified and assessed, and appropriate measures are taken to
counter the risks, designed at a cost price corresponding to the consequences deriving from
disclosure, change or delete of information that should be protected.
The "two-men" rule - obligation that two persons cooperate to fulfill a specific duty.
Security informatics product - security component incorporated in a ADPS or DTN - CIS,
used to increase or ensure confidentiality, integrity, availability, authenticity and non-repudiation
of the stored, processed or transmitted information.
Computer security - COMPUSEC - implementation at the level of each computer of the
hardware, software and firmware facilities, in order to prevent unauthorized disclosure, handling
or unauthorized delete of classified information or unauthorized invalidation of certain functions.
Communication security - COMSEC - implementation of security measures in
telecommunications with a purpose to protect messages in a telecommunication system that might
be intercepted, studied, analyzed, and by reconstruction, may lead to disclosure of classified
information. COMSEC represents all the procedures including:
transmission security measures;
TEMPEST security measures;
cryptographic coverage measures;
physical, procedural, personnel and document security measures;
COMPUSEC measures.

TEMPEST - all measures of testing and ensuring the security against information leakage
through parasite electromagnetic emissions.
Assessment consists in a detailed technical and functional examination of the security
aspects of an ADPS, DTN - (CIS) or of the security products, by an appropriate authority.
The assessment process verifies:
(a) the existence of the required security facilities/ functions;
(b) the absence of compromising secondary effects resulting from the implementation of the
security facilities;
(c) the overall functionality of the security system;
(d) the fulfillment of the specific security requirements for an ADPS and DTN-CIS;
(e) the determination of the trust level of ADPS or DTN-CIS or of the implemented
computer security products;
(f) the existence of the security performances of the computer security products installed in
ADPS or DTN-CIS.

Certification - the issuance of a finding document, to which an analysis document is
attached, reporting the assessment and its results. This finding document mentions the extent to
which ADPS and DTN-CIS meet the security requirements as well as the extent to which the
computer security products meet the requirements referring to the protection of classified
information in electronic format;
Accreditation is a stage when an ADPS or DTN-CIS is authorized or approved to process
classified information within its operational environment/space.
The accreditation stage shall take place after all appropriate security procedures have been
implemented and after a sufficient level of system resources protection has been achieved.
Accreditation is mainly made on the basis of the Specific Security Requirements (SSR), including
the following:
justifying statement upon the objective of system accreditation; classification level(s) of
information to be processed and handled; recommended protected operational mode(s);
justifying statement upon the risk management - mode of risk treatment / accounting /
solving - identifying the threats and vulnerabilities, as well as the adequate countermeasures;
the detailed description of the security facilities and recommended procedures designed for
ADPS or DTN - CIS. This description shall represent the essential element for completing the
accreditation process;
the plan for the implementation and maintenance of the security features;
the plan for carrying on security test, assessment and certification stages, regarding ADPS
or DTN - CIS;
certificate and, where required, supplementary elements of accreditation.

ADPS area - represents a working area, containing one or more operating computers, their
local peripheral and storage units, control units and specific network and communication
equipment. ADPS area does not include the separate area in which remote peripheral devices,
terminal or workstations are located, even though these devices are connected to the central
computing equipment of the ADPS area;
Remote terminal/workstation area represents an area - separated from ADPS area -
including:
(a) computing technique equipment;
(b) local peripheral devices, terminals or remote workstations connected to the
equipment within the ADPS area ;
(c) communication equipment.

Threat - an accidental or deliberate potential compromise of ADPS or DTN - CIS by loss of
confidentiality, integrity or availability of information in electronic format or by affecting the
functions ensuring the authenticity and non- repudiation of information.
Vulnerability - weakness or lack of control that would allow or facilitate a technical,
procedural or operational man oeuvre, which would threat a specific asset or target.

Infosec components
Hardware and software security
Computer security COMPUSEC - is the implementation at the level of each computer of
the hardware, software and firmware facilities, in order to prevent unauthorized disclosure,
handling or unauthorized delete of classified information or unauthorized invalidation of certain
functions.
Hardware, firmware and software security mechanisms can contribute individually as well
as blended to computer security.
Hardware and firmware security uses security features that are provided by the manufacturer
trough physical components of computers and refers to:
a) security procedures and documentation for start / stop computing equipment
b) instructions and safety procedures for connecting / disconnecting equipment in / from the
network
c) procedures for periodic checks of the seals on equipment and ensuring that hardware
modules are kept under lock and key, in case of equipment
d) pieces of the computer configuration to ensure the functioning in different conditions (for
example, must be specified what terminals / workstations or peripherals can be connected or
disconnected in a specific operational situation)
e) security procedures of configuration computer that is planned for maintenance and repair
f) procedures in case of hardware breakdown, including the commissioning of responsibilities
and description of appropriate actions in order to secure the computer while disconnecting (also
activities regarding the secure information and data stored on )
Software security comprises the use and control of any safety features provided by operating
system, and utility programs as well as application programs, as follows:
a) identification methods of users, procedures for establishing user accounts (individual or
groups), procedures for the allocation of user ID and delete user accounts whenever the situation
requires
b) authentication methods, including protection of authentication information (eg, access
password), control procedures and as well as procedures to change authentication mechanisms
c) access control mechanisms and procedures to implement user access control for the use of
information systems services and resources
d) records of software, of versions of operating systems, of utility programs and those that
will be used in special situations
e) control on copy or modify of data facilities related to: operating system, software tools
and application programs
f) precautions before and after data processing or during preparation of various types of
classified activities scheduled, including main memory erasing routines, declassifying rules or
overwriting of previous versions and as well as procedures to ensure that buffers are cleared and
all data files audit logs and records of open sessions of users are listed, and overwritten

Security of information storage media
In a computer and communication system the amount and density of information stored or
processed, their accessibility, ease and speed of copying the information, sometimes from remote
stations, underscores the need for measures to security of information, as well as the information
storage media. These measures aim:
a) appropriate procedures for classification of media storage
b) responsibilities and procedures for recording, control and record storage media
All storage media classified as secret of state are identified and controlled according to
appropriate level of secrecy (classification). For unclassified information or restricted information
are applied separate internal security regulations. Identification, record and control storage and
media require:
means of identification consisting of: number, series and marking the level of classification,
for each such storage media, separately
well-defined procedures for issuing, receipt, removal, destruction or preservation
information storage media
existence manual or printed records concerning the content and classification level of
information that is recorded on storage media.
For the levels strict secret and strict secret de importanta deosebita, the detailed
information on storage media, including the content and classification level of information, is held
in an appropriate register
c) procedures for acquisition, storage, record and control storage media for computers
d) procedures to receive, exchange and dissemination of electronic documents, including
procedures for checking for the existence of computer viruses and harmful software, applied to all
media from outside the computer system
f) responsibilities and procedures for declassification / destruction of electronic documents
and media storage.
When a storage media is planned to be unused (disbanded), it has to be declassified erasing
any classification markings, then this can be used as an unclassified storage media
Classified information recorded on reusable storage media are deleted only in accordance
with security operational procedures. If a storage media can not be declassified, then it must be
destroyed by an approved procedure.
Declassification and reuse of storage media containing information " strict secrete de
importan deosebit are forbidden, they can be destroyed only in accordance with security
operational procedures. Classified information in electronic form stored on a medium disposables,
cards, punched tapes can be destroyed as provided for operational security procedures.

Communications security
Communications security consist of applying security measures in telecommunications in
order to protect messages in a telecommunication system, which could be intercepted, studied,
analyzed and, by reconstitution, may lead to the disclosure of classified information.
Communications security is a set of procedures, including: transmission security measures,
security measures against radiation (TEMPEST), cryptographic security measures.

Transmission security
All means used to transmit classified information through radio and are subject to
communications security regulations issued by the designated national institution for protection of
classified information. Security transmission mechanisms conduct to ensuring the availability and
confidentiality information by appropriate means in order to counteracting unauthorized
interceptions, jamming, interferences, misleading, traffic analysis
Specifically, for a computer system these problems occur on wireless networks when
sharing data between the server and other components of the network is via radio equipment, not
wired.

Emissions security
Emissions security is a set of all testing measures, as well as getting security measures,
against leakage of information through stray electromagnetic emissions, TEMPEST.
Spurious emissions occur around cables that move electricity. At a sufficient distance
(several meters) of these cables and depending on the current that flows through throe cables, the
electromagnetic fields can be captured with special equipment, and information can be retrieved.
This situation is valid for cable networks that are not sufficiently protected and avoid is
possible only to the extent that information and communications system installation or any major
change it will be executed by authorized persons in terms of security provided by standards.
The works will be permanently supervised by qualified technical personnel who have access
to information at the highest level of classification that computer system will store, process or
transmit.

Cryptographic security
Computer system for processing, storage and transmission of data and information at state
secret level must be provided with the grading system (methods, means and equipment to ensure
integrity, confidentiality and availability)
The way how information is presented, even if transmission uses short code or binary
representation, or other form of transmission must not influenced the classification given to that
information.

Physical security
A special importance should be given physical security measures in order to prevent
following actions: unauthorized access to classified information, to perform unauthorized
operations, locking resources and services, as well as to protect computers and computer
equipment (theft, destruction, etc.).
Physical security of computing and communication systems as a component of INFOSEC, is
considering the environment in which they work (the rooms are located, power supply,
temperature, protection against fires, floods, functioning in emergency situations), but staff access
to areas where they are located.
Any person able to enter a place that contains computers can be in a position to interact or to
damage the equipment, as well as may have access to classified information processed by it.
Computer security threats can come from anyone who has professional training and adequate
knowledge of computer systems and can access them. In areas where systems that process classified
information are located it is necessary to apply general security measures such as:
entry personnel and materials, and departure to / from these areas to be controlled by
appropriate measures
areas and places where computers systems security can be affected, there should never be
occupied by a single authorized employee (usually rule the two)
people who require temporary or intermittent access to these areas must have authorized
access as visitors being always accompanied in order to have the guarantee that will not access
classified information or equipment used
Antivirus protection as a component of the protection systems must contain procedures
and virus protection measures both manual and automatic as follows:
Verification of installed operating systems, software packages and software tools, the
presence of viruses or other harmful software, having proper procedures for removing them and if
their detection;
Always check the files / data stored in computer systems, virus checking during processing,
accessing, introducing / extracting data to / from computer systems or well-established intervals
Verification of storage media (information and software) received from external sources,
with their disinfection procedures
Constantly updated versions of antivirus software and using several antivirus products
(licensed), both servers and workstations
Reporting of incidents caused by viruses, the sender of infected storage media and security
structure.

Conclusions
Information security is the ongoing process of exercising due care and due diligence to
protect information, and information systems, from unauthorized access, use, disclosure,
destruction, modification, or disruption or distribution. The never ending process of information
security involves ongoing training, assessment, protection, monitoring & detection, incident
response & repair, documentation, and review.
References

Allen, Julia H. (2001). The CERT Guide to System and Network Security Practices.
Boston, MA: Addison-Wesley. ISBN 0-201-73723-X.
Krutz, Ronald L.; Russell Dean Vines (2003). The CISSP Prep Guide (Gold Edition ed.).
Indianapolis, IN: Wiley. ISBN 0-471-26802-X.
Layton, Timothy P. (2007). Information Security: Design, Implementation, Measurement,
and Compliance. Boca Raton, FL: Auerbach publications. ISBN 978-0-8493-7087-8.
McNab, Chris (2004). Network Security Assessment. Sebastopol, CA: O'Reilly. ISBN 0-
596-00611-X.
Peltier, Thomas R. (2001). Information Security Risk Analysis. Boca Raton, FL:
Auerbach publications. ISBN 0-8493-0880-1.
Peltier, Thomas R. (2002). Information Security Policies, Procedures, and Standards:
guidelines for effective information security management. Boca Raton, FL: Auerbach
publications. ISBN 0-8493-1137-3.
White, Gregory (2003). All-in-one Security+ Certification Exam Guide. Emeryville, CA:
McGraw-Hill/Osborne. ISBN 0-07-222633-1.
Dhillon, Gurpreet (2007). Principles of Information Systems Security: text and cases. NY:
John Wiley & Sons. ISBN 978-0471450566.
Oprea, Dumitru, Protectia si securitatea informatiilor, Ed. a II a rev., Iasi, Polirom, 2007,
ISBN: 978-973-46-0927-7
Patriciu, V.V.; Pietrosanu-Ene, M.; Bica, I.; Cristea, C., Securitatea informatica in UNIX
si Internet, Editura Tehnica, Bucuresti, 1998

Web References

Law no. 101/2003 for the approval of Government Emergency Ordinance no.153/2002 on
the organization and functioning of the National Registry Office for Classified Information
(ORNISS), Romania, www.orniss.ro
Emergency Ordinance no. 153/2002 on the organization and functioning of the National
Registry Office for Classified Information, www.orniss.ro
Law no. 182/2002 on the protection of classified information, www.orniss.ro
Government Decision no. 353/2002 on Norms on the Protection of NATO Classified
Information in Romania, www.orniss.ro
Government Decision no. 585/2002 - The National Standards on the Protection of Classified
Information in Romania, www.orniss.ro
Government Decision no. 781/2002 on the protection of restricted information,
www.orniss.ro
Protectia informatiilor clasificate, www.sri.ro
NEW TRENDS IN IT&C SECURITY EVALUATION
Cristian Teodor PUN*
Emil SIMION**
Abstract
This paper focuses on the link between information security and cryptography
represented by National Institute of Standards and Technology (NIST) cryptographic standards,
Federal Information Processing Standard FIPS 140-2 (Security requirements for cryptographic
modules) standard and Common Criteria for Information Technologies Security Evaluation (ISO
15408) standard. Information security is the science of protecting information and information
systems from unauthorized access, use, disclosure, disruption, modification or destruction.
Cryptography deals with design, implementation and evaluating cryptographic algorithms (e.g.
NIST AES selection process, SHA-3 completion etc.) in order to be used by products (software
and/or hardware) which are intended to protect information or information systems. Before using
in information systems those cryptographic products need to be tested and evaluated also. One
evaluation standard is FIPS 140-2. After this evaluation is obtained, from an accredited
Laboratory, the system itself needs to be evaluated in order to have a image of the assurance level
obtained. Usually these evaluation is made using ISO 15408 (Common Criteria for Information
Technology Systems) standard.

Keywords: cryptographic algorithms, FIPS 140-2, ISO 15408, crypto modules, security
evaluation.

1. INFOSEC
INFOSEC domain covers the following areas:
Figure 1: INFOSEC standards stratification

Physical security describes both measures that prevent or deter attackers from accessing a
facility, resource, or information stored on a physical media and guidance on how to design
structures to resist various hostile acts.
Personnel security describes the restriction of data which is considered very sensitive. Under
need-to-know restrictions, even if one has all the necessary official approvals (such as a security
clearance) to access certain information, one would not be given access to such information unless
one has a specific need to know; that is, access to the information must be necessary for the
conduct of one's official duties. As with most security mechanisms, the aim is to make it difficult
for unauthorized access to occur, without inconveniencing legitimate access. Need-to-know also
aims to discourage "browsing" of sensitive material by limiting access to the smallest possible
number of people.
Procedural security deals with the establishment and enforcement of security procedures.
Some of these procedures may be independent of the type or types of computers involved. Others
may not. For example, perimeter security controls are usually similar for all type of systems. But
desktop computers may require forms of antitheft protection not required by mainframes.
Procedural security regulates the performance of duties associated with system operation and use,
and with the physical storage of system information. Common security practices include
partitioning computer operating duties, using several operators, and storing backup tapes at
bonded, offsite depositories. Procedural security also encompasses and may regulate company
policies that deal with information security, such as policies that regulate the way individuals
manage their own passwords.
Communications security (COMSEC) describes the measures and controls taken to deny
unauthorized persons information derived from telecommunications and ensure the authenticity of
such telecommunications. Communications security includes crypto security, transmission
security, emission security, traffic-flow security and physical security of COMSEC equipment.
Computer security is a branch of technology known as information security applied to
computers. The objective of computer security includes protection of information and property
from theft, corruption, or natural disaster, while allowing the information and property to remain
accessible and productive to its intended users.
TEMPEST is a codename referring to investigations and studies of compromising
emanations (CE). Compromising emanations are defined as unintentional intelligence-bearing
signals which, if intercepted and analyzed, may disclose the information transmitted, received,
handled, or otherwise processed by any information-processing equipment. Compromising
emanations consist of electrical, mechanical, or acoustical energy intentionally or by mishap
emitted by any number of sources within equipment/systems which process national security
information. This energy may relate to the original encrypted message, or information being
processed, in such a way that it can lead to recovery of the plaintext. Laboratory and field tests
have established that such CE can be propagated through space and along nearby conductors. The
interception/propagation ranges and analysis of such emanations are affected by a variety of
factors, e.g., the functional design of the information processing equipment, system/equipment
installation, and, environmental conditions related to physical security and ambient noise. The
term "compromising emanations" rather than "radiation" is used because the compromising signals
can, and do, exist in several forms such as magnetic-and/or electric-field radiation, line
conduction, or acoustic emissions.
Information assurance (IA) is the practice of managing information-related risks. More
specifically, IA practitioners seek to protect and defend information and information systems by
ensuring confidentiality, integrity, authentication, availability, and non-repudiation. These goals
are relevant whether the information are in storage, processing, or transit, and whether threatened
by malice or accident. In other words, IA is the process of ensuring that authorized users have
access to authorized information at the authorized time.
Cristian Teodor Paun Emil Simion 283
INFOSEC Standards
INFOSEC standards can be stratified like in Figure 1: standards for cryptographic
algorithms, cryptographic modules and for IT&C security. In this chapter we focus on standards
for cryptographic algorithms, crypto-modules (FIPS 140-2) and IT&C standards (e.g. ISO 15408).

2. CRYPTOGRAPHIC STANDARDS
Our discussion is based on National Institute of Standards and Technologies (NIST)
cryptographic standards. These standards can be divided in four classes: symmetric key, public
key, secure hash and random number generation.
In symmetric key we can found for example AES (FIPS 197), DES (FIPS 46-3) for block
ciphers standards or HMAC (FIPS 198) for hashing and message authentication code. We
remained that simple DES was replaced by AES, 3-DES being in use. In public key standards we
can found Digital Signature Standard (FIPS 186-3), Key Establishing Schemes (DH&MQV,
FFC&ECC SP 800-56A) and Key Management Guideline. Secure hash is referring to SHA-1,
SHA-224, SHA-384, SHA-512 (FIPS 180-2). At this time there exists a draft for SHA-3 which
will replace SHA-2.
One standard for random number generation standards is SP 800-90.
The following table gives the theoretical comparable strengths of symmetric and asymmetric
cryptographic algorithms.

Sym Key 80 112 128 192 256
Hash functions (for signatures) 160 224 256 384 512
FFC and IFC 1K 2K 3K 7.5K 15K
ECC 160 224 256 384 512

NIST approved standards are referred by NIST Cryptographic Toolkit. Some of these
standards are allowed to process classified information. For example, AES with 128 bit key can be
used to protect SECRET classified information and AES with 192 or 256 bit key can be used to
protect TOP SECRET classified information.

FIPS 140-2
Cryptographic controls are provided using cryptographic modules, which may include
capabilities such as signature generation and verification, encryption and decryption, key
generation, and key establishment.
An undetected error in a cryptographic module design could affect every user in the system
for which it is supposed to provide protection. For example, the verification of a chain of public
key certificates might not function correctly.
Verifying a chain of public key certificates helps a signature verifier determine if a signature
was generated with a particular key. If the function is implemented incorrectly in a cryptographic
module, the potential for the dissemination of weak cryptography could be introduced into the
system, possibly allowing for signature forgery or the verification of invalid signatures. Therefore,
it is important to have cryptographic modules tested before distributing them throughout a system.
The security requirements in FIPS 140-2 cover 11 areas related to the design and
implementation of a cryptographic module:
Cryptographic module specification includes definition of cryptographic boundary,
approved algorithms and approved modes of operations;
Cryptographic module ports and interfaces are referred to the specification of all interfaces
and all input data paths. For security level 3 and 4 data ports for unprotected critical security
parameters logically or physically separated from others data ports;
Roles, services and authentication requires, for all security levels, logical separation of
required and optional roles and services. For level 2 operators authentication must be role
based or identitybased. To achieve security level 3 and 4 operator authentication must be
identity-based;
Finite state model requires the specification of finite state model, required and optional
states, state transition and specification of these transitions;
Physical security is focusing to tamper evidence, detection and response (e.g. erasing
critical security parameters);
Operational environment is referring to evaluation, for example, of Protection Profile (PP)
at (Evaluation Assurance Level) EAL 4;
Cryptographic Key Management is referring to the key (secret, private and public)
manipulation during its life time: generation, pre -activation, activation, usage, storage and
deletion;
EMI/EMC electromagnetic compliance with Federal standards;
Self Tests includes power-up tests and conditional tests;
Design assurance is referring to configuration management, secure installation, design
policy and guidance documents;
Mitigations of others attacks are referred to specification of mitigation of attacks for which
no testable requirements are currently available.

Within most areas, a cryptographic module receives a security level rating of 1 to 4, from
lowest to highest, depending on what requirements are met. For other areas that do not provide for
different levels of security, a cryptographic module receives a rating that reflects the fulfillment of
all of the requirements for that area.
An overall rating is issued for the cryptographic module, that indicates the:
1. Minimum of the independent ratings received in the areas with levels, and
2. Fulfillment of all the requirements in the other areas.

On a vendor's validation certificate, individual ratings are listed as well as the overall rating.
It is important for vendors and users of cryptographic modules to realize that the overall rating of a
cryptographic module is not necessarily the most important rating. The rating of an individual area
may be more important than the overall rating, depending on the environment in which the
cryptographic module will be used (this includes understanding what risks the cryptographic
module is intended to address). Modules may meet different levels in different security
requirement areas; for example, a module may implement identity-based authentication (level 3 or
4) and display tamper evidence (level 2).
At this time the draft for FIPS 140-3 where NIST has updated the standard to reflect
changes in technology has a fifth security level. In this draft there is a special section dedicated to
software security and specifying requirements to protect against non-invasive attacks. Also the
reference to Common Criteria (ISO 15408) and requirements for the use of Common Criteria
certified operating systems has been dropped. In this draft NIST improves the requirements for
authentication for level 4 at two-factor authentication (at least two of three: something known,
something possessed and some physical property). Also a greater importance is given to physical
security requirements to defeat non - invasive attacks/side channel attacks (protection to timing
attacks (TA), differential power analysis (DFA) etc.)

3. CRYPTOGRAPHIC MODULE VALIDATION PROGRAM (CMVP)
NIST and the Communications Security Esablishment (CSE) of the government of Canada
established the CMVP. The goal of the CMVP is to provide Federal agencies with a security
metric to use in procuring equipment containing cryptographic modules. The results of the
independent testing by accredited laboratories provide this metric. Cryptographic module
validation testing is performed using the Derived Test Requirements (DTRs) for FIPS 140-2. The
DTRs list of all the vendor and tester requirements for validating a cryptographic module are the
basis of testing done by the Cryptographic Module Testing (CMT) accredited laboratories. Figure
2 illustrates the CMV process.

Figure 2: CMV process

4. IT&C ASSURANCE STANDARDS (COMMON CRITERIA)

Information Technology Security Evaluation Criteria (ITSEC), predecessor of Common
Criteria for Information Technology Security Evaluation (abbreviated as Common Criteria or CC),
is a structured set of criteria for evaluating computer security within products and systems. The
ITSEC was first published in May 1990 in France, Germany, the Netherlands, and the United
Kingdom based on existing work in their respective countries. Following extensive international
review, Version 1.2 was subsequently published in June 1991 by the Commission of the European
Communities for operational use within evaluation and certification schemes. Since the launch of
the ITSEC in 1990, a number of other European countries have agreed to recognise the validity of
ITSEC evaluations.
Thus Common Criteria is an international standard (ISO/IEC 15408) for computer security
certification. It is currently in version 3.1. Common Criteria is a framework in which computer
system users can specify their security requirements, vendors can then implement and/or make
claims about the security attributes of their products and testing laboratories can evaluate the
products to determine if they actually meet the claims. In other words, Common Criteria provides
assurance that the process of specification, implementation and evaluation of a computer security
product has been conducted in a rigorous and standard manner. Common Criteria is performed on
computer security products and systems and provides similarly-defined evaluation levels,
implements the target of evaluation concept and the Security Target document.

Target of Evaluation
Target of Evaluation (TOE) - the product or system that is the subject of the evaluation. The
evaluation serves to validate claims made about the target. To be of practical use, the evaluation
must verify the target's security features. This is done through the following:
Protection Profile (PP) - a document, typically created by a user or user community, which
identifies security requirements for a class of security devices (for example, smart cards used to
provide digital signatures, or network firewalls) relevant to that user for a particular purpose.
Product vendors can choose to implement products that comply with one or more PPs, and have
their products evaluated against those PPs. In such a case, a PP may serve as a template for the
product's ST (Security Target, as defined below), or the authors of the ST will at least ensure that
all requirements in relevant PPs also appear in the target's ST document. Customers looking for
particular types of products can focus on those certified against the PP that meets their
requirements.
Security Target (ST) - the document that identifies the security properties of the target of
evaluation. It may refer to one or more PPs. The TOE is evaluated against the SFRs (see below)
established in its ST, no more and no less. This allows vendors to tailor the evaluation to
accurately match the intended capabilities of their product. This means that a network firewall
does not have to meet the same functional requirements as a database management system, and
that different firewalls may in fact be evaluated against completely different lists of requirements.
The ST is usually published so that potential customers may determine the specific security
features that have been certified by the evaluation.
Security Functional Requirements (SFRs) - specify individual security functions which may
be provided by a product. The Common Criteria presents a standard catalogue of such functions.
For example, an SFR may state how a user acting a particular role might be authenticated. The list
of SFRs can vary from one evaluation to the next, even if two targets are the same type of product.
Although Common Criteria does not prescribe any SFRs to be included in an ST, it identifies
dependencies where the correct operation of one function (such as the ability to limit access
according to roles) is dependent on another (such as the ability to identify individual roles).

5. EVALUATION PROCESS
The evaluation process also tries to establish the level of confidence that may be placed in
the product's security features through quality assurance processes:
Security Assurance Requirements (SARs) - descriptions of the measures taken during
development and evaluation of the product to assure compliance with the claimed security
functionality. For example, an evaluation may require that all source code is kept in a change
management system, or that full functional testing is performed. The Common Criteria provides a
catalogue of these, and the requirements may vary from one evaluation to the next. The
requirements for particular targets or types of products are documented in the ST and PP,
respectively.
Evaluation Assurance Level (EAL) - the numerical rating describing the depth and rigor of
an evaluation. Each EAL corresponds to a package of security assurance requirements (SARs, see
above) which covers the complete development of a product, with a given level of strictness.
Common Criteria lists seven levels, with EAL 1 being the most basic (and therefore cheapest to
implement and evaluate) and EAL 7 being the most stringent (and most expensive). Normally, an
ST or PP author will not select assurance requirements individually but choose one of these
packages, possibly 'augmenting' requirements in a few areas with requirements from a higher
level. Higher EALs do not necessarily imply "better security", they only mean that the claimed
security assurance of the TOE has been more extensively validated.
So far, most PPs and most evaluated STs/certified products have been for IT components
(e.g., firewalls, operating systems, smart cards). Common Criteria certification is sometimes
specified for IT procurement. Other standards containing, e.g, interoperation, system management,
user training, supplement CC and other product standards. Examples include the ISO 17799 (or more
properly BS 7799-2, which is now ISO/IEC 27002) or the German IT-Grundschutzhandbuch.
Details of cryptographic implementation within the TOE are outside the scope of the CC.
Instead, national standards, like FIPS 140-2, give the specifications for cryptographic modules,
and various standards specify the cryptographic algorithms in use.

Conclusions
This paper presented the connections between ISO 15408 (Common Criteria for information
Technologies Security Evaluation), FIPS 140-2 (Security requirements for cryptographic modules)
and cryptographic algorithms.

References

Alexander W. D., Chris J. M. (2006). Users guide to Cryptography and Standards, Artech
House.
Barker, E.B., Barker, W.C., & Lee, A.(2005). Guide line for implementing cryptography in
the federal systems - Second Edition (SP 800-21), Gaithersburg, USA: National Institute of
Standards and Technology (NIST).
Common Criteria for Information Technology Security Evaluation, ISO 15408.
Federal Information Processing Standards Publication (FIPS) 140-2 (2002). Security
requirements for cryptographic requirements, Gaithersburg, USA: National Institute of Standards
and Technology.
ISO standards available from World Wide Web: <http://www.iso.ch/>
Security requirements for cryptographic requirements, FIPS 140-2.
available from World Wide Web: <NIST standards: http://www.nist.gov/;
http://www.csrc.nist.gov/>


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Jos Luis de la Cuesta, Isidoro Blanco Cordero 1

LESIJ NR. XVII, VOL. 1/2010

THE IMPLEMENTATION OF THE ECTHRS CASE-LAW AND

Lex ET Scientia. Administratives Series

PRINCIPLES OF A NEW MODEL FOR EDUCATION IN THE KNOWLEDGE SOCIETY

CONSIDERATIONS REGARDING THE PROTECTION

Lecturer, Ph.D., Law Faculty, Nicolae Titulescu University, Bucharest (e-mail:

Lecturer, Ph.D candidate, Dimitrie Cantemir Christian University

PhD.Associated Professor, Dean of Faculty of Law, Nicolae Titulescu University, Bucharest.

PhD. Candidate, Nicolae Titulescu University, Bucharest.

Partea general/ Generalities, Hamangiu Publishing house, page 104.

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