Legal framework
Constitutional provisions
The Constitution of Romania of 1991, with amendments from 2003, guarantees the freedom of association. Individuals may freely associate into political parties, trade unions, employers' associations, and other forms of association. Secret associations and any activities aimed against political pluralism, democratic principles of rule of law or the country’s integrity and independence are prohibited. Various categories of civil servants, including magistrates and police officers, are not allowed to join political parties.
Primary and secondary legislation
The Law on Political Parties, of 26 November 2002, prescribes the right of Romanian citizens to associate in political parties, promote national interests and values, contribute to the formation of public opinion and participate in elections. Political parties are organized according to administrative-territorial criteria and must comply with legal requirements as to their name, distinguishing sign, program and status. In order to function, political parties have to be registered in the Register of Political Parties, upon the Bucharest municipal court’s decision of admission, following a procedure detailed in the law. To date, there are 47 political parties registered in Romania. Political parties may associate and form political alliances following a similar procedure.
According to the Law on Financing Political Parties’ Activities and Electoral Campaigns, of 19 December 2002, political parties’ financing sources – membership fees, donations, revenues and subsidies from the state budget – are tax exempt. A one-year contribution may not exceed 100 minimum gross salaries, and donations – 0,025% of the state revenue. Financing of political parties by state authorities and institutions, trade unions, as well as by foreign states, individuals or organizations, is prohibited. The state must allocate no more than 0.04% of the state budget for political parties annually. This law was subsequently amended through the Government Emergency Ordinance 98/2008, on amending and supplementing Law no. 334/2006, published in the Official Journal, Part I, no. 630 of 29 August 2008.
The Law on Trade Unions, of 9 December 2002, provides for the right of employees, individuals who exercise a profession, members of cooperatives, farmers and those involved in professional training to join and establish a trade union. To set up a trade union, a minimum number of 15 people from the same industry or profession is needed. Representatives of the magistracy, certain ministries and other subordinated units can not set up trade unions. The trade unions must be recognized by court decision, and must function according to their own statutes, regulations and action plans. Trade unions have to defend the rights of their members – as set forth in the labor law, in civil servants’ statutes, collective agreements, individual employment contracts, and civil servants’ employment relationships agreements – before courts, law enforcement bodies and other state institutions or authorities.
The Law on Employers’ Unions, of 19 June 2001, provides for the right of employers to set up nationwide autonomous, non-political, private, non-profit unions based on economic activities, which may be organized by sections, divisions, and branches. A minimum number of 15 registered legal entities or individuals authorized by law, or at least 5 members from the branches in which they hold over 70% of the output, may create a union. The statutes adopted by its members, in compliance with legal provisions, regulate the constitution, organization, functioning and dissolution of employers’ unions.
The activity of homeowners’ associations is regulated by the Law on Establishing, Organizing and Functioning of Homeowners’ Associations, of 23 July 2007. This Law regulates the activity, administration and operation of dwellings owned by at least three public or private law persons or legal entities. Owners’ associations are established by the written agreement of at least half plus one of the owners of flats and non-residential premises. Subsequently, owners are obliged to take action on common rights and obligations related to the common property.
The Law no. 305/2008 on amending the Government Ordinance no. 26/2000 on Associations and Foundations (of 19 December 2008) prohibits the use in the name of associations of phrases or words likely to cause confusion with the name of public authorities or institutions of local or national interest. Associations and foundations having such names were required to change them within six months from the entry into force of the Law, or otherwise risk dissolution by court order following a request by any authority, institution or person concerned.
The Law no. 34/2010 on the Completion of art. 7 of the Government Ordinance no. 26/2000 on Associations and Foundations, of 9 March 2010, lists the phrases or words likely to cause confusion with names of public authorities or institutions of national or local administration. The registration of an association’s name containing the words "national" or "Romanian" or their derivatives can be made only with the prior consent of the Government’s General Secretariat.
The Law on Sponsorship no. 32/1994, as amended and completed by the Government Ordinance no. 36 of 30 January 1998, the Law no. 204/2001 and the Law no. 394/2006, provides that public institutions and authorities, companies with state capital and autonomous administrations cannot run sponsorship activities having as beneficiaries natural persons, family associations and private capital companies. Sponsorship can be received by any non-lucrative legal entity that runs or will run an activity in the cultural, artistic, educational, fundamental or applied scientific research, humanitarian, religious, philanthropic, sports, human rights, medical and sanitary, social assistance and services, environment protection, social, community and professional representation areas. The sponsor or the recipient legal entity have the right to bring sponsorship to public knowledge by promoting the sponsor's name, brand or image. Romanian citizens or legal entities involved in sponsorship enjoy a reduction on their taxable base by the sponsorship value but not more than 10%, 8% and 5%. Romanian citizens or legal entities involved in acts of patronage enjoy a reduction on their taxable base by their equivalent value but not higher than 10% of the taxable base.
The Tax Code of 22 December 2003, updated on 1 January 2009, provides that foreign legal entities and non-resident individuals operating in Romania in an association without legal personality are required to pay income tax under this law. Conversely, non-profit organizations, trade unions and employers' organizations are exempt from paying income tax. In the case of an association without legal personality, incomes and expenses shall be assigned to each registered shareholder, corresponding to his or her rate of participation in the association.
According to the Government Ordinance on Associations and Foundations no. 26 of 30 January 2000, with subsequent amendments operated through the Government Ordinance 37/2003, the Law no. 246/2005 and the Law no. 305/2008, natural and legal entities aiming to carry out activities of general interest, of local community interest or, if such be the case, of their personal non-patrimonial interest, may establish associations and foundations. An association is a subject of law (i.e., legal entity) constituted by three or more persons, on the basis of an agreement. An association acquires legal status upon registration with the clerks’ office in the court of the territorial unit where the association operates. In order to acquire legal status, the associates must prepare a constitutive act and a statute, in authentic form or confirmed by a lawyer. Additionally, the quantum of the patrimonial assets must be equal to at least one gross minimum wage at the date of the association’s establishment, and may consist of in kind and cash contributions of the associates. The association acquires legal personality upon registration with the Registry of associations and foundations. Foundations are subjects of law created by one or more persons who, based on a legal act of will inter vivos or for cause of death, establish a patrimony designed permanently and irrevocably for achieving a general-interest objective or, if such be the case, a community objective. The registration procedure for foundations is similar to that for associations. The initial patrimony of the foundation must include assets in-kind or in cash, whose total value should be at least 100 times the minimum gross salary in the national economy, on the date the association is created.
Possible restrictions
Art. 40 of the Constitution of Romania prohibits political parties or organizations which by their aims or activities militate against political pluralism, the principles of a State governed by the rule of law, or against the sovereignty, integrity or independence of Romania. The same article provides that judges of the Constitutional Court, ombudsmen, magistrates, active members of the Armed Forces, police officers and other categories of civil servants (as detailed by organic law), shall not join political parties. The Constitution also prohibits secret associations.
According to Art. 56 of the Government Ordinance on Associations and Foundations, associations can be dissolved by court decision, inter alia, if their goals or activities are illicit or contrary to public order, or when associations become insolvent.
The Criminal Code of Romania, of June 2009, sanctions the creation of organized criminal groups. An organized criminal group is a structured group, consisting of three or more people, created for a certain period of time that are to act in a coordinated manner in order to commit one or more violations. Becoming a member or supporting in any manner such a group is punishable by imprisonment of one to five years.
Case law
In the case of Partidul Comunistilor (Nepeceristi) (PCN) and Ungureanu v. Romania, (Application no. 46626/99), the European Court of Human Rights found a violation of art. 11 of the Convention and considered that there can be no justification for hindering a political group that complies with fundamental democratic principles solely because it has criticized the country's constitutional and legal order and sought a public debate in the political arena. Accordingly, a measure as drastic as the refusal of the applicants' request to register the PCN as a political party, before its activities had even started, was disproportionate to the aim pursued and consequently unnecessary in a democratic society.
Analysis provided by: Dumitrita Bologan, July 2010
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