Transparency International Romania, alongside the Active Watch Monitoring Agency, the Pro Democracy Association, the Legal Resources Center, and the Romanian Investigative Journalism Center, are protesting against the approval of the legislative proposal to amend and complete the Law of the Chambers of Commerce in Romania 1 and the law regarding the Trade Register 2, by the Chamber of Deputies in the meeting of November 3, 2009, through which the National Trade Register Office passes from the Ministry of Justice and Citizens' Freedoms to the administration of the Chambers of Commerce.
Transforming the status of the ONRC does not violate only the constitutional rules in force, but also European directives and good practices in this field. Thus, besides the dysfunctions that this new state of affairs could generate in the implementation of the rules on commercial companies at national level, the legislative proposal may put Romania in a position not to respect the acquis communautaire in the field, generating effects relevant for the market unique European.
One of the most serious consequences in this regard is the concession of a public service of general interest in the management of non-governmental entities such as chambers of commerce, without taking into account the collateral effects generated by this transfer. In addition to violating the European public data directives and the impossibility of transferring the public monopoly over them 3, the legislative proposal abstracts the need to ensure the principles specific to public procurement of services - transparency, equal treatment and proportionality - while at the same time blocking or hampering the mechanisms for controlling the activities of the divested public services.
Thus, not only the activity of verifying and controlling the implementation of the Community directives of the Ministry of Justice and Citizens' Freedoms is challenged, but also that of the delegated judges, affecting, as a consequence, the functioning of the judicial authority and, implicitly, the rule of law. The judge in charge, according to the law in force, can work only with a public institution and in no case with an institution of private law, whether it is in the public interest. Blocking its activity can lead to negative effects in verifying the operations of registration of commercial operators, sweetening the climate of intolerance over extremely sensitive issues such as corruption and fraud affecting the financial interests of Romania and the EU.
Moreover, the recent legislative proposal adopted by the Chamber of Deputies does not meet the minimum standards of decision-making transparency in identifying regulatory needs, ignoring public consultations at relevant stakeholders (business environment, civil society, MJLC, ONRC itself). The rapture of the decision-making procedure, but also the rejection report of the Legal Commission on Appointments, Disciplines, Immunities and Validations, the negative opinion of the Economic Commission and the rejection of the draft by the Senate on October 13, 2009, the suspicion of this adoption being favored by the opportunity of the new parliamentary majority in the Chamber of Deputies.
We ask the People's Advocate to urgently attack this legislative proposal at the Constitutional Court as it flagrantly violates the European rules on free information as well as the provisions of the Constitution on the functioning of the judiciary and the impossibility of conceding the powers of public authority (the act of granting legal personality, legal person and issuance of insolvency certificates). The Alliance for the Rule of Law stands at the same time as the ONRC's negative view on the issue in question, but also the position expressed by the MJLC to ask the President of Romania for not to proffer this legislative proposal.
Transparency International Romania
Victor Alistar - Executive Director, Transparency International Romania
1 - Law no. 335/2007 of the chambers of commerce in Romania, published in the Official Gazette no. 836 of 06/12/2007
2 - Law no. 26/1990 on the Trade Register, published in the Official Gazette no. 121 of 07.11.1990
3 - The obligation to maintain the central trade register is established by Directive 61/151 / EEC and belongs to the State institutions.
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