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CELE MAI NOI ȘTIRI ȘI ALERTE BREAKING NEWS: ACTIVEAZĂ NOTIFICĂRILE

Solicitarea ANI catre Parlamentul EUROPEAN/ DOCUMENT

ANI

ro va prezinta scrisoarea trimisa de Agentia Nationala de Integritate catre Parlamentul European in vederea constarii nulitatii mandatului de europarlamentar obtinut de Mircea Diaconu la alegerile europarlamentare din 25 mai.

Mr. Martin SCHULTZ

President

European Parliament

The National Integrity Agency (NIA) is the second benchmark of the Mechanism for Cooperation and Verification, established under the European Commission’s Decision 2006/928/CE. In that line, our undertaking to request that you do not validate Mr. Mircea Diaconu’s Membership of the European Parliament, is part of our institution’s obligation to make all necessary efforts to ensure enforcement of the Judgment no. 3104/2012 by Romania’s High Court of Review and Justice finding irrevocably that Mr. Mircea Diaconu has violated the legal regulations concerning incompatibilities.

Citeste si: Prima reactie a lui Mircea Diaconu la actiunea ANI

Citeste si: ANI cere anularea mandatului de europarlamentar a lui Mircea Diaconu

We shall start by stating we stand by the Judgment no. 3104/2012 by Romania’s High Court of Review and Justice finding irrevocably that Mr. Mircea Diaconu has violated the legal regulations concerning incompatibilities in exercising the office of Senator in the Parliament of Romania. After the High Court of Review and Justice returned its judgment, and following the Romanian Senate’s refusal to enforce the aforementioned Judgment, the Higher Council of Magistrates brought the case before the Constitutional Court of Romania, which ruled in its Decision no. 460 of 13 November 2013, that a legal dispute of a constitutional nature existed between the judicial authority, represented by the High Court of Review and Justice, on one hand, and the legislative authority, represented by the Senate of Romania, on the other.

The Constitutional Court ruled on the basis of the facts as presented by the Higher Council of Magistrates and also the fact that depriving a Judgment of the High Court of Review and Justice of its effects can lead to an institutional impasse in terms of the Constitutional stipulations that establish a separation of powers in the State and a system of checks and balances as well as equality before the law.

Regarding the applicability of Article 25 in Law no. 176/2010, the High Court of Review and Justice of Romania, in its point of view as communicated to the Constitutional Court of Romania, stated the following:

Art. 25 (1) The action of a person who was found to have issued an administrative act, a legal act or to have made a decision or to have participated in a decision in violation of the legal provisions on conflicts of interests or incompatibilities constitutes a disciplinary violation and is punishable according to the rules applicable to the office, position or activity in question, provided that this law does not derogate from it and the action does not meet the elements of a criminal offense.

(2) A person removed from office or dismissed under the provisions of paragraph (1) or in respect of which the existence of a conflict of interests or incompatibility was confirmed shall lose his/her right to hold a public position or office that is subject to the provisions of this law, except for elected ones, for a time period of three years after removal from office, dismissal from that public position or office, or from the date of mandate termination by operation of the law. If such person held an elected office, they may no longer hold the same position for a time period of three years as from the mandate termination. If the person no longer holds a public position or office at the moment when the state of incompatibility or conflict of interests is found, the three years prohibition shall operate according to the law, as from the date when the assessment report remained final, or from the date when the court judgment confirming the existence of a conflict of interests or a state of incompatibility remains final and irrevocable, respectively.

(3) The actions of a person in respect of which the existence of a conflict of interest or incompatibility was confirmed are deemed grounds for dismissal or, where appropriate, disciplinary violation and are punishable according to the rules applicable to that public office, position or activity.

 By proceeding to a technical and legal analysis of the text under discussion one notes the following: “(…) if, in an attempt to give the provisions of Article 25 para. (2), 2nd indent of Law #l76/2010 a meaning as close as possible to the lawmaker’s intent at the moment of their adoption, their content is analyzed and interpreted from a perspective other than the strictly literal and grammatical one, the conclusion may be completely different from the one embraced by the Legal, Appointment, Discipline, Immunity and Validation Committee of the Senate of Romania, in the sense of giving this legal text a legal interpretation according to which, at the moment when the existence of a state of incompatibility was finally established, the person in question loses the right to hold any other position of the nature of that having generated the state of incompatibility.”

Thus, considering that under the general principles that govern the science of law the meaning of a legal regulation relies on logical-legal reasoning that is both inductive and deductive, on the social and historical reasons that led to its adoption, on establishing its place within the entirety of the legal system as a whole and on its relationship with the other stipulations that have a direct or indirect impact on regulating the same legal realities, we believe that a correct solution to the problem at hand necessarily requires that an interpretation of the legal text under discussion be performed by going beyond the limitations of a strictly literal reading, and that the genuine intent of the lawmaker should be revealed by also applying the logical-legal, systematic-historical, and not lastly teleological method of interpretation.

By proceeding to a systematic-historical interpretation of those legal stipulations, we feel the following points should be made:

The importance of regulations in the matter of combating corruption and promoting integrity in the public sector, as part of the national regulatory system, is very well known. Those regulations are not only an absolutely necessary response to a genuine requirement from the Romanian society but a crucial component of Romania’s dialog with its European partners as part of the process of assessing the extent to which it discharges its obligations as a Member State of the European Union (the importance of substantive law on integrity in the exercise of public positions and office was in fact also recognized by the Constitutional Court itself in its judgments – see, for instance, Judgment no. 1412 of 16 December 2008, published in the Official Journal issue no. 158 of 13 March 2009, or Judgment no. 1082 of 8 September 2009, published in the Official Journal issue no. 659 of 03 October 2009 – where it states inter alia that for reasons of preventing acts of corruption by certain categories of employees, specifically identified, the lawmaker is at liberty to establish additional obligations for such employees, precisely in view of the activities they carry out, when such activities are of a specific nature and importance).

In that context we believe it to be particularly relevant that one of the four conditions set by the Mechanism of Cooperation and Verification (established in December 2006 under the European Commission’s Decision 2006/928/CE) for Romania was to set up, as per stipulations, an Integrity Agency that would have authority to look into the public servants and officials’ assets, potential incompatibilities and personal conflicts of interests, and would also have the authority to adopt mandatory decisions that could lead to dissuasive penalties. Also, from the perspective of a systematic interpretation of the provisions of Article 25 of Law #176/2010 – but from the perspective of their relation with the entire legislative aggregate in the area – we find extremely relevant the arguments of the Higher Council of Magistrates in the material with which it seized the Constitutional Court (the motion by the Higher Council of Magistrates was filed following the Romanian Senate’s refusal to sustain a cessation of Mircea Diaconu’s office as a Senator on grounds of incompatibility established irrevocably by the High Court of Review and Justice) according to which, since the principles underlying the prevention of conflicts of interests and incompatibilities in holding public positions are: impartiality, integrity, decision-making transparency, and prevalence of the public interest, the purpose of the applicable legal norms is a preventive and sanctioning one for specific activities during a mandate, seeking to establish prohibition of the right to hold a position implying a vote of confidence in respect of elected offices.”

To permit such interpretation under which legal rigors are applied to a person declared as being in a state of incompatibility only under the circumstances where that person continues to hold the same position as the one having generated the state of incompatibility at the moment when the assessment report of NIA remains final, would provide persons targeted by Law #176/2010 with an extremely effective method to evade the law, especially to evade the applicability of the sanctions established by it, in the sense that, through a periodical rotation of elected offices during the time interval necessary to conduct the entire procedure established by law for confirming a state of incompatibility (and which, most of the times, is rather lengthy, including the stage of procedures conducted before courts), subjects targeted by the legal status of incompatibilities can easily evade the legal framework referring to such status.

Last but not least, from the perspective of the logical & legal interpretation method, we find highly relevant the arguments raised by the Higher Council of Magistrates in respect of the creation, through the interpretation given by the Legal Committee of the Senate of Romania, of an unfair and discriminating legal situation, which violates the general law principles and, in particular, the principle of equality of public authorities before the law sanctioned by the provisions of Article 16 of the Fundamental Law.

We therefore embrace to the position expressed by the Higher Council of Magistrates, which reads that: “accepting that a person who held an elected office may no longer hold the same position, in the sense of identity of capacities (the same type of function he/she was holding at the moment when the state of incompatibility was confirmed) for a time interval of 3 years as from the mandate termination, but may hold other elected office, and that a person in relation to which the existence of a conflict of interests or a state of incompatibility was confirmed, and who is not holding an elected office, to be deprived of the right to hold the same type of position or other public position or office – no matter what this is (except for elected ones) for a time interval of 3 years as from the date of dismissal from the position held, is blatantly contrary to the meaning and purpose considered by the lawmaker, and violates the principle of equality of citizens before the law and public authorities."

The legal consequences of a state of incompatibility are: termination of the exercise of the Senator office, as under applicable law and Constitution requirements (Art. 25 in Law no. 176/2010 and Art. 70 in the Constitution of Romania) and a ban from holding another elected position for a period of three years as of the date confirmation of incompatibility is final.

The first consequence has been achieved, by sustained effort of the National Integrity Agency, the High Court of Review and Justice, the Higher Council of Magistrates and the Constitutional Court of Romania, opposed to refusal by the Senate of Romania to recognize the lawful cessation of office; as regards the second consequence it will be up to you to examine this request from the National Integrity Agency that you refrain from validating the mandate of a person who, contrarily, would exercise their mandate under the effect of a ban that is a direct result of violating a series of legal requirements of an imperative nature (regarding integrity in the exercise of public office) as well as of a final, irrevocable Judgment by the Supreme Court of Romania.

From a teleological perspective of applying in concreto the integrity principles as also regulated at EC level, we believe the analysis that needs to be performed should not be restricted de plano to only aspects of form, but needs to relate to aspects that arise from the fundaments of integrity in the exercise of the capacity of Member of the European Parliament.

In the light of the above, on the date of Mircea Diaconu’s filing as a candidate for Membership of the European Parliament the National Integrity Agency undertook to persuade the Central Electoral Office to refrain from validating his candidacy, since he was under a ban from occupying a public office.

For a proper grasp of the applicable law and the facts, we would like to inform you of the following:

  • 2 April 2014 – Central Electoral Office denied Mircea Diaconu’s candidacy under Decision no. 27D/02.04.2014, on grounds that: “at the time of filing candidacy Mr. Mircea Diaconu is under a ban from occupying an elected public office.” Ten members voted to invalidate Mircea Diaconu’s candidacy, five of whom were Justices from the High Court of Review and Justice. 
  • 2 April 2014 – Mircea Diaconu challenged the Central Electoral Office’s Decision before the Bucharest Tribunal. The hearing date was set for 4 April 2014, at 13:00hrs.
  • 9 April 2014, 19:15hrs – The Bucharest Court of Appeals ruled in Civil Judgment to sustain, as legal and justified, the Bucharest Tribunal’s Civil Judgment no. 18/AE/05.04.2014 in Case no. 9/C/AEPE/2014, tried by the 4th Civil Chamber, which sustained the challenge that had been filed by Mircea Diaconu.

It is important to emphasize that the Bucharest Court of Appeals ruled in the matter of Mircea Diaconu’s right to run for office, not in the matter the validity of his mandate as a Member of the European Parliament.

As such and continuing the efforts described above, after the end of the European Parliament elections, the National Integrity Agency informed the Permanent Electoral Authority – and also sent a copy to the Central Electoral Office – that Mr. Mircea Diaconu was under a 3-year ban from occupying a public office, as a result of his state of incompatibility as established under the High Court of Review and Justice’s irrevocable Judgment in compliance with Art. 25 in Law no. 176/2010.

Following the National Integrity Agency’s request to deny Mircea Diaconu’s candidacy to represent Romania in the European Parliament, the Permanent Electoral Authority replied in its letter no. 7520/29.05.2014 that:We feel that such steps can be undertaken by the National Integrity Agency, on its own behalf, as the agency that has sole jurisdiction to monitor compliance with applicable law on incompatibilities and conflict of interests, in the form of a challenge sent to the competent committee for verification of credentials of the Members of the European Parliament, as under Art. 12 in the Act of 20 September 1976 and Art. 3 paragraphs (3) and (4) in the European Parliament’s Procedural Regulation.” 

In view of the above, the National Integrity Agency is hereby requesting that the European Parliament take the procedural steps to invalidate the Membership of European Parliament for Mr. Mircea Diaconu.

Under Art. 13 paragraph 3 of the Act of 20 September 1976, following the 2014 elections to the European Parliament: in case the law of a Member State explicitly stipulates withdrawal of the mandate from a Member of the European Parliament such mandate shall be terminated in compliance with the legal stipulations.” 

In this case the Jurisdictional national Authorities shall transmit the relevant information to the European Parliament, as under their authority given by national laws.

 The National Integrity Agency is hereby requesting: that you do not validate the European Parliament Membership of Mr. Mircea DIACONU, for the reasons below: 

Invalidation of the mandate can be performed under Art. 7 of the Act of 20 September 1976, which establishes the legal framework applicable to incompatibilities and which in paragraphs 1 and 2 lists the positions and cases that can generate a state of incompatibility when exercised simultaneously with that of Member in the European Parliament.

Also, under Art. 7 paragraph 3 in the Act of 20 September 1976, it is established that additionally, each Member State can, in the circumstances stipulated at Art. 8 of the same piece of regulation, and national stipulations to the situations concerning the incompatibilities described in paragraphs 1 and 2 of Art. 7 of the Act of 20 September 1976.

In that line, Art. 9 in Law no. 33/2007 on the organization and implementation in Romania of elections to the European Parliament stipulates:

(1) Without impact on the incompatibilities stipulated in the Act of 1976 on election of Members of the European Parliament by universal direct ballot, as subsequently amended, the capacity of Member of the European Parliament is incompatible with that of Deputy or Senator in the Romanian Parliament, member of Romania’s Government, the positions stipulated at Art. 81 and 82 in Book ITitle IVChapter IIISection 2 in Law no. 161/2003 on Steps to Ensure Transparency in the Exercise of Public Dignity, Office and the Business Environment, Prevention and Combating of Corruption, as amended and supplemented, or equivalent positions in the Member States of the European Union.

(2) Within 30 days of validation of results in elections for the European Parliament, persons in a state of incompatibility shall opt between the Membership of the European Parliament and the office that generates incompatibility, by resigning from one of those two offices.

(3) In case there occurs or there continues to exist a case of incompatibility with the positions stipulated at Art. 81 and 82 in Book ITitle IVChapter IIISection 2 in Law no. 161/2003, as amended and supplemented, after expiry of the deadline stipulated in paragraph (2), the persons in a state of incompatibility shall be deemed as resigned from the office of Member of the European Parliament. The resignation is found to exist by Decision of the Permanent Electoral Authority, to be published in the Official Journal of Romania, Part I, and shall be communicated to the European Parliament.

(4) The National Integrity Agency issues findings in cases of incompatibility between the office of Member of the European Parliament and the positions stipulated at paragraph (1) and shall communicate those to the Permanent Electoral Authority within 15 days of the finding.

(5) As the case may be, the Permanent Electoral Authority notifies the European of the cases of incompatibility stipulated by Art. 7 par. (1) and (2) in the Act of 1976 that regard Romanian Members of the European Parliament or, under par. (3), finds that the persons in a state of incompatibility are resigned from office.

(7) The Permanent Electoral Authority carries out the formalities needed for acceptance of candidates who were successfully elected to the European Parliament.

(8) Except for the cases stipulated in par. (3), finding cessation of the mandate as Member of the European Parliament is performed under the Act of 1976 and the European Parliament’s Procedural Regulation.

According to Art. 4 par. 4 in Rule 4 of the European Parliament’s Procedural Regulation:Where the competent authority of a Member State notifies the President of the end of the term of office of a Member of the European Parliament pursuant to the provisions of the law of that Member State, as a result either of incompatibilities within the meaning of Article 7(3) of the Act of 20 September 1976 or withdrawal of the mandate pursuant to Article 13(3) of that Act, the President shall inform Parliament that the mandate ended on the date communicated by the Member State and shall invite the Member State to fill the vacant seat without delay.”

Mircea DIACONU was under a clear legal ban from occupying an elected office, such as that of Member of the European Parliament; his other elected office, as Senator, was lawfully terminated by a final, irrevocable court Judgment that found him in a state of incompatibility and consequently he fails to meet one of the FUNDAMENTAL CONDITIONS for validation as Member of the European Parliament.

As required by its jurisdiction under national law, the National Integrity Agency must inform the European Parliament of the fact that Mr. Mircea Diaconu was in a state of incompatibility as confirmed by Judgment no. 3104/2012 of the High Court of Review and Justice of Romania, being banned under Art. 25 in Law no. 176/2010 from occupying a public office.

In the Progress Report under the Mechanism of Cooperation and Verification, released in July 2011, the European Commission recommended that Romania “demonstrate a track record in prompt and dissuasive sanctions taken by administrative and judicial authorities regarding incompatibilities, conflicts of interest and the confiscation of unjustified assets in follow-up to the findings of the National Integrity Agency (ANI), emphasizing that: “the insufficient reaction by the administrative and judicial bodies to NIA’s findings and referrals undermine the effectiveness of the entire process of strengthening the integrity of public administration and limit the results yielded by NIA’s activity" so it is necessary to have “a prompt, comprehensive reaction by the administrative and judicial bodies so as to ensure results obtained by the integrity system in this respect.”

We would like to draw attention to the fact that the Commission’s Report to the European Parliament and Council concerning Romania’s progress within the Mechanism of Cooperation and Verification (which we are also appending) includes a mention that “the Law will have its most significant impact when it is found to be used to bring clear, consistent and dissuasive penalties.

In support of the above we also bring the efforts of the National Integrity Agency to see the enforcement by Romania’s Parliament of Judgment no. 3104/2012 by the High Court of Review and Justice of Romania. This effort was supported by the High Court of Review and Justice of Romania, The Higher Council of Magistrates and the Constitutional Court of Romania which, in its Judgment no. 972 of 21 November 2012 foundexistence of a legal dispute of a constitutional nature between the judicial authority, represented by the High Court of Review and Justice, on one hand, and the legislative authority, represented by the Senate of Romania, on the other; the dispute was created by the Romanian Senate’s refusal to recognize the lawful termination of Mr. Mircea Diaconu’s office as Senator, by a final and irrevocable judicial ruling that found him in a state of incompatibility.

Considering the above situation, the National Integrity Agency notifies that Mr. Mircea Diaconu fails to meet the legal credentials for validation of his mandate as Romanian representative in the European Parliament.

Given that Mircea Diaconu occupied an elected office that ceased through the effect of incompatibility, the National Integrity Agency requested that the Bucharest Court of Appeals nullify the Central Electoral Office report on candidate Mircea Diaconu, and requested that the Court compel the Permanent Electoral Authority to issue the non-acceptance paper for candidate Mircea Diaconu as representative in the European Parliament, a request which is the object of Case no. 3859/2/2014.

The National Integrity Agency underlines that the law on incompatibilities is intended to bring penalties for any violation in the administrative decision-making process, whose main function is to protect the public interest, and that the capital reason for which lawmakers wrote the law this way was to punish any attitudes contrary to applicable law, so that such individuals who harm the public interest should be deprived of the right to occupy public office precisely to prevent repeat violations and the situations where the public interest continues to be disregarded by a person who has been found to be in a state of incompatibility.

Consequently, a finding of violation of regulations on incompatibilities causes the need to protect the public interest for the future, by penalties intended to restrict the possibility to disregard applicable law and which Mr. Mircea Diaconu must also comply with, under the law, without privilege or discrimination.

It is beyond doubt that the penalty of termination of public office following a finding of incompatibility, confirmed by a final, irrevocable court judgment, would be insufficient and ineffective without penalties that also preclude the possibility that such a person might be able to hold other elected office.

This will rule out the absurd avenues whereby the person who fails to comply with applicable law is free to simply switch to a new office from where to continue violating their legal obligations.

The converse approach involves going along with a person’s attitude to ignore and flout the law they are mandated to observe. Thus, the law focuses primarily on compliance with the principle of transparency in public administration and protecting the public interest, and only secondarily on disapproval from the person who violates it.

The penalty of a ban, for a subsequent period of time, from occupying elected public office comes as a step to protect the public interest and, in subsidiary, to punish the person who has proven unworthy of that public office and is implicitly unworthy of occupying a new one.

The fundamental goal of instating procedures to validate a mandate of Member of the European Parliament is to confer LEGITIMACY, and as we have shown above such requirements are evidently not met.

In conclusion, based on the above arguments, the Romanian National Integrity Agency is requesting that you do not validate Mr. Mircea DIACONU’s mandate as a Member of European Parliament.

Attached please find:

  1. Writ of summons  referred to Bucharest Court of Appeals;
  2. Point of view of the High Court of Review and Justice of Romania concerning the facts that made the object of Case no. 709E/2013 of the Constitutional Court;
  3. Assessment Report no. 5034/G/II/2011 finding a state of incompatibility in the case of Mr. Mircea Diaconu;
  4. Decision no.3104/19.06.2012 by High Court of Review and Justice of Romania;
  5. Decision no. 27D/02.04.2014 of the Central Electoral Office to deny independent candidacy for Mr. Mircea Diaconu;
  6. Request no. 8231/28.05.2014 by the National Integrity Agency to the Permanent Electoral Authority;
  7. Reply no. 7520/29.05.2014 by the Permanent Electoral Authority.

Yours sincerely,

Horia GEORGESCU

President

National Integrity Agency

        

BUCHAREST COURT OF APPEALS

8TH ADMINISTRATIVE AND FISCAL LITIGATION DIVISION

Your Honor,

The undersigned NATIONAL INTEGRITY AGENCY, with its head office in Bucharest, 15 Lascăr Catargiu Blvd., District 1, Bucharest, fiscal registration certificate Series A, no. 0477331/30.11.2007, sole registration code (C.U.I.) 22838777, bank account no. RO98TREZ70023510120XXXXX opened with A.T.C.P.M.B, through its legal representative Horia Georgescu, President, under the provisions of Article 194 of Law no. 134/2010 on the Code of Civil Procedures and Law no. 554/2004, files this:

WRIT OF SUMMONS

Against the Permanent Electoral Authority, with its head office in Bucharest, 6 Stavropoleos Street, Bucharest, District 3, 030084, the Central Electoral Bureau, having its headquarters in Bucharest, 28 Ion Câmpineanu Street, zip code 010039, and Mircea Diaconu, residing in Bucharest, 23 Maica Alexandra Street, District 1, Bucharest, requesting the court to order through the decision to be returned by it as follows:

  • Nullification of item K, Number of Mandates Awarded to Each  List of Candidates or to Each Independent Candidate, no. 6 – Diaconu Mircea (page 12)" of the Minutes of the Central Electoral Bureau dated 29.05.2014 regarding the Aggregation of Votes and the Awarding of Mandates in the Elections for the European Parliament on 25 May 2014, published in Official Journal no.399 of 29.05.2014
  • Nullification of item I – List of Members Elected for the European Parliament, no. 28, Diaconu Mircea –independent candidate (page 14)” of the Minutes of the Central Electoral Bureau dated 29.05.2014 regarding the Aggregation of Votes and the Awarding of Mandates in the Elections for the European Parliament on 25 May 2014, published in Official Journal no.399 of 29.05.2014
  • Nullification of Letter no. 7520/29.05.2014 of the Permanent Electoral Authority and, through the sentence to be returned by the Court, compelling the Permanent Electoral Authority to deny Mr. Mircea Diaconu’s representation of Romania as Member of the European Parliament.

Considerations:

Administrative contentious is defined as the settlement by administrative litigation courts of disputes in which at least one of the parties is a public authority, and the cause of which is the omission or issuance, as applicable, of an administrative document, or the failure to resolve within the legal term or an unjustified refusal to resolve a petition referring to a right or legitimate interest. 

I. Arguments related to the admissibility of the application filed by the National Integrity Agency:

The doctrine defines the administrative contentious as follows: "Administrative contentious represents the aggregate of disputes between public authorities, on one hand, and those prejudiced in their rights and legitimate interests, on the other, inferred from typical administrative documents or from assimilated documents deemed illegal that fall under the competence of jurisdiction of administrative litigation courts governed by a preponderantly public legal regime.

It is understood that, from all the categories of documents issued by a public entity, only typical or assimilated documents may be appealed in administrative contentious, by observing the following admissibility requirements: 

      The scope of the admissibility requirements is consecrated by Law no. 554/2004 as follows:

  • The requirement that the administrative document be a typical or assimilated one;
  • The requirement that the appealed document originate from a public authority;
  • The requirement that the appealed document harm a right acknowledged by law or a legitimate interest;
  • The requirement to fulfill the preliminary procedure;
  • The requirement to observe the legal deadline.

We believe that, in this case, the admissibility requirements are met, as we will further explain below:

Referring to the first requirement, in doctrine, Professor Tudor Drăganu, in his work „Free Access to Justice,” mentions this requirement using the following wording: "the requirement that the appealed document is issued by a public authority or is a material act assimilated by law to such document”.

Therefore, reference is made to acts assimilated by law to an administrative document, because it is about an act assimilated by the legislator, due to its effects, to a document, and not  vice versaIn the case, the refusal of the Permanent Electoral Authority to comply with the request submitted by the National Integrity Agency to issue a document of non-acceptance of Mircea Diaconu’s candidacy, and to take the required steps before the European Parliament, through its specialized structures, related to the invalidation of the mandate of Mr. Mircea Diaconu as Member of European Parliament.

The Permanent Electoral Authority is a fundamental autonomous administrative institution of the Romanian state, which supervises the organization and conducting of election operations, in order to provide proper conditions for the exercise of electoral rights, equal opportunities in the political competition, and transparency in funding the activities of political parties and election campaigns.

In light of this legal provision, in fulfilling its duties established by Article 9 of Law no. 33/2007, by corroboration also with the legislation in the area of incompatibilities, namely Law no. 161/2003 and Law no. 176/2010, the Permanent Electoral Authority has the obligation to perform control administrative operations related to the application of the specific legislation. 

In respect of the Permanent Electoral Authority, Law no. 33/2007 establishes prerogatives related to the notification of the European Parliament and to the acceptance of candidates elected in the European Parliament, which are public authority prerogatives

The acceptance issued by the Permanent Electoral Authority is a document that produces legal effects based on Law no.33/2007, as subsequently amended and supplemented, and represents the formality required for the acceptance of candidates declared elected in the European Parliament. The notification by the Permanent Electoral Authority of the European Parliament in respect of Mircea Diaconu is one of the procedure steps the effect of which consists of the participation in the works of the European Parliament and the mandate performance, even though he is subject to the prohibition established by the provisions of Article  25 of Law no. 176/2010.

Also, according to the provisions of Article 2 para. (2) of Decision no. 2 of 19 March 2007 approving the Regulation for the Organization and Operation of the Permanent Electoral Authority, the latter exercises duties and prerogatives of: 

„e) control, through which it verifies observance of the law and application of the sanctions set by law, where applicable”;

In the case at hand, please note that the National Integrity Agency, as a holder of the competence to watch the observance of the legal provisions in the area of incompatibilities and conflicts of interests, informed the Permanent Electoral Authority on the fact that Mircea Diaconu was subject to the prohibition established by the provisions of Article 25 of Law no. 176/2010, and requested the Permanent Electoral Authority to exercise its competences established by the legal provisions in force. 

Considering the arguments above, please ascertain the fact that the requirement referring to the existence of an administrative document, in its assimilated form, is met due to the refusal of the Permanent Electoral Authority to comply with the requests of the National Integrity Agency, thus falling under the provisions of Article 2 corroborated with Article 8 of Law no. 554/2004. 

Regarding the legitimate interest of the National Integrity Agency in filing this application, this results from the provisions of Law no. 176/2010 on Integrity in Holding Public Offices and Positions, Amending and Supplementing Law no. 144/2007 on the Creation, Organization and Operation of the National Integrity Agency, and Amending and Supplementing other Legal Norms.

According to the provisions of Article 8 of the aforementioned piece of legislation: 

“(1) The purpose of the National Integrity Agency is to ensure integrity in holding public offices and positions and to prevent institutional corruption, by the performance of responsibilities related to the assessment of disclosures of interests, of data and information referring to assets, as well as of changes occurred in relation to assets, of potential  incompatibilities and conflicts of interests in which the persons listed under Article 1 may be during the time interval while they hold public positions and offices.”

According to the provisions of Article 9 of Law no. 33/2007: 

(4) The National Integrity Agency acknowledges cases of incompatibility between the European parliamentarian mandate and the positions listed under para. (1), and communicates these to the Permanent Electoral Authority within 15 days as from their acknowledgement.

(5) As applicable, the Permanent Electoral Authority notifies the European Parliament on cases of incompatibility listed under Article 7 paras. (1) and (2) of the 1976 Act, in which Romanian members in the European Parliament are, or ascertains, according to para. (3), resignation of persons who are in a state of incompatibility.

(7) The Permanent Electoral Authority fulfills the formalities required for the acceptance of candidates declared elected in the European Parliament.

(8) Except for the cases set by para. (3), termination of a European parliamentarian mandate is ascertained as per the 1976 Act and the European Parliament’s Procedural Regulation.

 Regarding the second requirement, we mention that, according to the provisions of Article 7 of Law no. 554/2004 – Law on Administrative Litigation, as subsequently amended and supplemented, on the date of 28.05.2014, through Letter no. 8231,  the National Integrity Agency notified the Permanent Electoral Authority on the state of incompatibility in which Mircea Diaconu was and requested it not to accept candidate Mircea Diaconu and to inform the European Parliament for the invalidation of his mandate, considering the express provisions of Article 25 of Law no. 176/2010.

On the date of 03.06.2014, the Permanent Electoral Authority sent Response no. 7520, in which it invoked its lack of jurisdictional competence; we believe that such response falls under the provisions of Article 2 para. (2) of Law no. 554/2004: “An unjustified refusal to resolve an application referring to a right or legitimate interest or, as applicable, a failure to respond to a petitioner within the legal term are also assimilated to unilateral administrative acts.”

The document issued by the Permanent Electoral Authority is of nature to prejudice a right acknowledged by law or a legitimate interest, considering the decision of this institution to accept a candidate who falls under the scope of the provisions of Article 25 of Law no. 176/2010 to hold a public position that is the subject matter of it.

The prejudiced interest is the public interest to hold a public position in compliance with the legal norms referring to integrity, an interest which the National Integrity Agency has the legal obligation to protect, an obligation that results from the second conditionality of the Mechanism of Cooperation and Verification established by Decision no. 2006/928/EC of the European Commission and from the provisions of Law no. 176/2010. 

Through the Progress Report drafted under the Mechanism of Cooperation and Verification, publicly released in July 2011, the European Commission recommended Romania “to demonstrate a track record in prompt and dissuasive sanctions taken in follow-up to the findings of the National Integrity Agency,” underlining that  the insufficient reaction by the administrative and judicial bodies to NIA’s findings and referrals undermine the effectiveness of the entire process of strengthening the integrity of public administration and limit the results yielded by NIA’s activity” and that “a prompt, comprehensive reaction by the administrative and judicial bodies so as to ensure results obtained by the integrity system in this respect.

On the merits, 

As a premise, we mention Judgment no. 3104/2012 of the High Court of Review and Justice finding irrevocably that Mr. Mircea Diaconu has violated the legal regulations concerning incompatibilities in holding the office of Senator in the Parliament of Romania. After the judgment of the High Court of Review and Justice was returned, as a result of the refusal by the Senate of Romania to enforce the aforementioned decision, the Higher Council of Magistrates notified the Constitutional Court of Romania, which decided through Judgment no. 460 of 13 November 2013, confirming that a legal dispute of a constitutional nature existed between the judicial authority, represented by the High Court of Review and Justice, on one hand, and the legislative authority, represented by the Senate of Romania, on the other.

Essentially, the Judgment of the Constitutional Court considered the situation presented by the Higher Council of Magistrates and the fact that the depriving a Judgment of the High Court of Review and Justice of its effects can lead to an institutional impasse in terms of the Constitutional stipulations that establish a separation of powers in the State and a system of checks and balances as well as equality before the law.

Regarding the applicability of Article 25 in Law no. 176/2010, the High Court of Review and Justice of Romania, in its point of view as communicated to the Constitutional Court of Romania, stated the following: 

Art. 25 (1) The action of a person who was found to have issued an administrative act, a legal act or to have made a decision or to have participated in a decision in violation of the legal provisions on conflicts of interests or incompatibilities constitutes a disciplinary violation and is punishable according to the rules applicable to the office, position or activity in question, provided that this law does not derogate from it and the action does not meet the elements of a criminal offense.

(2) A person removed from office or dismissed under the provisions of paragraph (1) or in respect of which the existence of a conflict of interests or incompatibility was confirmed shall lose his/her right to hold a public position or office that is subject to the provisions of this law, except for elected ones, for a time period of three years after removal from office, dismissal from that public position or office, or from the date of mandate termination by operation of the law. If such person held an elected office, they may no longer hold the same position for a time period of three years as from the mandate termination. If the person no longer holds a public position or office at the moment when the state of incompatibility or conflict of interests is found, the three years prohibition shall operate according to the law, as from the date when the assessment report remained final, or from the date when the court judgment confirming the existence of a conflict of interests or a state of incompatibility remains final and irrevocable, respectively.

(3) The actions of a person in respect of which the existence of a conflict of interest or incompatibility was confirmed are deemed grounds for dismissal or, where appropriate, disciplinary violation and are punishable according to the rules applicable to that public office, position or activity."

     By proceeding to a technical and legal analysis of the text under discussion one notes the following: “(…) if, in an attempt to give the provisions of Article 25 para. (2), 2nd indent of Law #l76/2010 a meaning as close as possible to the lawmaker’s intent at the moment of their adoption, their content is analyzed and interpreted from a perspective other than the strictly literal and grammatical one, the conclusion may be completely different from the one embraced by the Legal, Appointment, Discipline, Immunity and Validation Committee of the Senate of Romania, in the sense of giving this legal text a legal interpretation according to which, at the moment when the existence of a state of incompatibility was finally established, the person in question loses the right to hold any other position of the nature of that having generated the state of incompatibility.”

Thus, considering that under the general principles that govern the science of law the meaning of a legal regulation relies on logical-legal reasoning that is both inductive and deductive, on the social and historical reasons that led to its adoption, on establishing its place within the entirety of the legal system as a whole and on its relationship with the other stipulations that have a direct or indirect impact on regulating the same legal realities, we believe that a correct solution to the problem at hand necessarily requires that an interpretation of the legal text under discussion be performed by going beyond the limitations of a strictly literal reading, and that the genuine intent of the lawmaker should be revealed by also applying the logical-legal, systematic-historical, and not lastly teleological method of interpretation

By proceeding to a systematic-historical interpretation of those legal stipulations, we feel the following points should be made:

The importance of regulations in the matter of combating corruption and promoting integrity in the public sector, as part of the national regulatory system, is very well known. Those regulations are not only an absolutely necessary response to a genuine requirement from the Romanian society but a crucial component of Romania’s dialog with its European partners as part of the process of assessing the extent to which it discharges its obligations as a Member State of the European Union (the importance of substantive law on integrity in the exercise of public positions and office was in fact also recognized by the Constitutional Court itself in its judgments – see, for instance, Judgment no. 1412 of 16 December 2008, published in the Official Journal issue no. 158 of 13 March 2009, or Judgment no. 1082 of 8 September 2009, published in the Official Journal issue no. 659 of 03 October 2009 – where it states inter alia that for reasons of preventing acts of corruption by certain categories of employees, specifically identified, the lawmaker is at liberty to establish additional obligations for such employees, precisely in view of the activities they carry out, when such activities are of a specific nature and importance).

In that context we believe it to be particularly relevant that one of the four conditions set by the Mechanism of Cooperation and Verification (established in December 2006 under the European Commission’s Decision 2006/928/CE) for Romania was to set up, as per stipulations, an Integrity Agency that would have authority to look into the public servants and officials’ assets, potential incompatibilities and personal conflicts of interests, and would also have the authority to adopt mandatory decisions that could lead to dissuasive penalties.

Also, from the perspective of a systematic interpretation of the provisions of Article 25 of Law #176/2010 – but from the perspective of their relation with the entire legislative aggregate in the area – we find extremely relevant the arguments of the Higher Council of Magistrates in the material with which it seized the Constitutional Court (the motion by the Higher Council of Magistrates was filed following the Romanian Senate’s refusal to sustain a cessation of Mircea Diaconu’s office as a Senator on grounds of incompatibility established irrevocably by the High Court of Review and Justice) according to which, since the principles underlying the prevention of conflicts of interests and incompatibilities in holding public positions are: impartiality, integrity, decision-making transparency, and prevalence of the public interest, the purpose of the applicable legal norms is a preventive and sanctioning one for specific activities during a mandate, seeking to establish prohibition of the right to hold a position implying a vote of confidence in respect of elected offices.

To permit such interpretation under which legal rigors are applied to a person declared as being in a state of incompatibility only under the circumstances where that person continues to hold the same position as the one having generated the state of incompatibility at the moment when the assessment report of NIA remains final, would provide persons targeted by Law #176/2010 with an extremely effective method to evade the law, especially to evade the applicability of the sanctions established by it, in the sense that, through a periodical rotation of elected offices during the time interval necessary to conduct the entire procedure established by law for confirming a state of incompatibility (and which, most of the times, is rather lengthy, including the stage of procedures conducted before courts), subjects targeted by the legal status of incompatibilities can easily evade the legal framework referring to such status.

Last but not least, from the perspective of the logical & legal interpretation method, we find highly relevant the arguments raised by the Higher Council of Magistrates in respect of the creation, through the interpretation given by the Legal Committee of the Senate of Romania, of an unfair and discriminating legal situation, which violates the general law principles and, in particular, the principle of equality of public authorities before the law sanctioned by the provisions of Article 16 of the Fundamental Law..

We therefore embrace to the position expressed by the Higher Council of Magistrates, which reads that: “accepting that a person who held an elected office may no longer hold the same position, in the sense of identity of capacities (the same type of function he/she was holding at the moment when the state of incompatibility was confirmed) for a time interval of 3 years as from the mandate termination, but may hold other elected office, and that a person in relation to which the existence of a conflict of interests or a state of incompatibility was confirmed, and who is not holding an elected office, to be deprived of the right to hold the same type of position or other public position or office – no matter what this is (except for elected ones) for a time interval of 3 years as from the date of dismissal from the position held, is blatantly contrary to the meaning and purpose considered by the lawmaker, and violates the principle of equality of citizens before the law and public authorities.”

There are two consequences of the state of incompatibility: 

  • termination of the office of senator, according to the legal and constitutional norms (Article 25 of Law no. 176/2010 and the provisions of Article 70 of the Romanian Constitution); 
  • a ban from holding an elected position for a time interval of three years as from the date when the document ascertaining the state of incompatibility remained final.

 While the first consequence was implemented, with sustained efforts by the National Integrity Agency, the High Court of Review and Justice, the Higher Council of Magistrates and the Constitutional Court of Romania against the refusal of the Senate of Romania to acknowledge the termination by right of the mandate, as far as the second consequence is concerned, the court is to examine the request of the National Integrity Agency to admit the action lodged by the National Integrity Agency, and to order the steps requested through this action.

The Permanent Electoral Authority, by refusing to comply with NIA’s request referring to the non-acceptance of Mr. Mircea Diaconu to represent Romania as member of the European Parliament, through a passive conduct, contrary to the law, accepted  a person who would exercise his mandate under the effect of a prohibition deriving directly from the infringement of certain mandatory legal provisions, such as the norms referring to integrity in holding public positions, on one hand, and of the final and irrevocable decision of the supreme court of Romania, on the other. From a teleological perspective of the application in concreto of the principles regarding integrity, regulated at a EU level, we believe that the analysis to be conducted should not limit de plano only to formal aspects but should consider aspects related to the substance of integrity in holding the office of Member of European Parliament. 

In light of the aspects presented above, on the date when the candidacy for the office of Member of European Parliament was submitted, the National Integrity Agency requested the Central Electoral Bureau to reject the candidacy of Mr. Mircea Diaconu, who is subject to a prohibition to hold a public position. 

For a proper understanding of the de facto and de jure situation, we bring to your knowledge the following:

  • 2 April 2014 – Central Electoral Office denied Mircea Diaconu’s candidacy under Decision no. 27D/02.04.2014, on grounds that: “at the time of filing candidacy Mr. Mircea Diaconu is under a ban from occupying an elected public office.” Ten members voted to invalidate Mircea Diaconu’s candidacy, five of whom were Justices from the High Court of Review and Justice. 
  • 2 April 2014 – Mircea Diaconu challenged the Central Electoral Office’s Decision before the Bucharest Tribunal. The hearing date was set for 4 April 2014, at 13:00hrs.
  • 9 April 2014, 19:15hrs – The Bucharest Court of Appeals ruled in Civil Judgment:
  • to deny the appeals filed by the 5 natural persons on ground of lack of legal standing of those persons;
  • to deny the appeals filed by the National Integrity Agency, Nicuț Elenina, and the Public Ministry, respectively, as unfounded;
  • to sustain Civil Judgment no. 18/AE/05.04.2014 returned in case no. 9/C/AEPE/2014 by the 4th Civil Chamber of the Bucharest Tribunal as legal and grounded.

It is important to emphasize that the Bucharest Court of Appeals ruled in the matter of Mircea Diaconu’s right to run for office, not in the matter the validity of his mandate as a Member of the European Parliament. 

As such and continuing the efforts described above, after the end of the European Parliament elections, the National Integrity Agency informed the Permanent Electoral Authority – and also sent a copy to the Central Electoral Office – that Mr. Mircea Diaconu was under a 3-year ban from occupying a public office, as a result of his state of incompatibility as estab

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