The rule of law under assault

We recently marked a fine number of years since the Great Union, 104 years, and 33 years since the fall of communism. Difficult years, half of them under war and dictatorship. The rule of law developed only weakly in the interwar period and over the last thirty years. Today, the national celebration is a sad one. Democracy in Romania is under its greatest assault since 1945. A series of laws and government measures undermine our progress and our hope for unity and justice.

From famous phrases of communists and Legionnaires, adopted and promoted today by certain parties, to anti-democratic bills designed to silence civil society.

Thus, we see that we are still threatened by Ceaușescu’s “foreign agents” of 1989, when civil society is accused of being paid “from abroad” by obscure individuals. Both Ceaușescu and today’s political representatives who make such accusations engage in propaganda of nationalist-Soviet origin, designed to discredit people’s defence against the abuses of the political class.

The construction of media campaigns in the bought press containing such attacks on civil society has materialised in specific bills that effectively prohibit citizens’ right to defend themselves in court, in practice to defend their fundamental rights and natural heritage.

The legislation specified below will effectively remove any integration of environmental standards into sectoral policies, violating the precautionary principle in decision-making and the principle of sustainable development. These are fundamental European Union principles established by its Treaties, which take precedence over national law under Article 148 of the Constitution. But most seriously, natural heritage and people’s well-being will suffer and can no longer be defended in court.

Thus:

• The latest legislative proposal designed to put Romania back on the path to dictatorship is BL 758/2022, the legislative proposal amending and supplementing Government Ordinance No. 26/2000 on associations and foundations, signed by a large number of PNL representatives, which effectively prohibits NGOs’ access to court, violating the international treaties and conventions to which Romania is a party and the right of access to justice enshrined in Romania’s Constitution and the Aarhus Convention. The most harmful provisions concern a security deposit of 1% of the contested value, but no more than 50,000 lei, and the establishment of financial liability for members of the Board of Directors. The provisions also apply retroactively to pending litigation. The bill awaits debate in parliamentary committees.

• Pl-x No. 317/2022, registered in the Senate as L679/2022, amending and supplementing Law No. 50/1991 on authorising construction works, Law No. 350/2001 on spatial planning and urban development and Administrative Litigation Law No. 554/2004, sets an impossible obligation for civil society to bring court proceedings when illegal acts are issued. It establishes forfeiture and limitation periods that run regardless of whether the injured parties learn of the unlawful content of building permits, presuming that merely listing a permit number on a town hall’s website (and we have over 3000 town halls plus county councils empowered to issue building permits) proves awareness of the grounds for illegality. Clearly, the obligation imposed on civil society is impossible and liable to remove access to justice, allowing an impossible obligation that is null under general legal principles (Impossibilium nulla obligatio est).

• Order No. 1679/2022 approving the procedure for redirecting corporate income tax, under which ANAF checks whether non-governmental organisations comply with the law and decides whether they may receive sponsorship offered by companies through redirecting a percentage of their corporate income tax.

Moreover, since last year, deductions have become available for the United Nations Children’s Fund – UNICEF and other international organisations operating under special agreements to which Romania is a party. Clearly, increased state control over NGO funding and the state’s decision on which causes receive redirected amounts will deprive environmental NGOs challenging harmful state projects of funds. At the same time, small NGOs in social services will no longer benefit from funding, because companies will prefer to deduct their contributions and will turn only to NGOs for which this mechanism is available. These provisions are discriminatory and liable to violate the principles of the rule of law and NGO independence.

Destruction of surface waters

• The Government has issued a draft emergency ordinance establishing measures concerning investment objectives for hydropower developments under construction and other projects of overriding public interest using renewable energy. The draft has not yet been discussed in Government and has already been signed by the Ministry of the Environment, Waters and Forests. Two further bills have been submitted to Parliament and are being debated in committees: B711/07.11.2022, with negative opinions from the Legislative Council and CES, and 712/07.11.2022.

These drafts will destroy Romania’s Natura 2000 network, irreparably affecting 24 Natura 2000 sites, rivers, forests and priority protected habitats, without environmental assessments, on the basis of a political decision benefiting a state-owned company, to produce a non-existent amount of energy: no current study has been conducted on today’s river flows and the water that needs to remain unused for species’ survival. At the indicators of the 80s, these rivers would disappear entirely given the drastic reduction in flows over the last 30 years.

• At the same time, the Environment Ministry has proposed an emergency ordinance removing the obligations to assess the impact of hydraulic works on water bodies (including bridges and hydropower plants), making a water management endorsement no longer compulsory before works begin, an act previously defined as a criminal offence. This change follows the identification of several hydraulic works carried out without a water management endorsement (over 700 bridges), with complaints also submitted to the European Commission. BP910/2022, being debated in the Senate as the second chamber seized, follows the same direction.

• PL 489/2022 – supplementing Article 33 of Water Law No. 107/1996, adopted by the Senate and sent to the Chamber of Deputies – under which the right to operate aggregate extraction sites will be granted directly by ANRM through extraction permits, excluding ANAR from the procedure and removing the obligation to hold an extraction licence. This change follows the identification of several operations without licences.

• Emergency Ordinance 140/2022 on the single industrial licence, setting deadlines for issuing environmental regulatory acts that do not allow coherent environmental impact assessment procedures, applicable in all sectors, including those in Annexes 1 and 2 of the EIA Directive, transposed through Law 292/2018.

• Simplification of the procedures for the annual endorsement of the environmental permit and integrated environmental permit. These procedures, already conducted without transparency or public consultation, in violation of the Aarhus Convention, will be simplified into mere formalities, without taking reported environmental problems into account. Indeed, under the newly proposed NGO legislation, there will no longer be anyone to report them.

• Proposal amending Law 350/2001 and supplementing Law 50/1991 on authorising construction works, aimed at granting the right to build in the absence of spatial planning and urban development documentation for works to build electricity and hydrogen production and storage capacity from renewable sources, within and outside localities’ built-up areas, including transformer stations, cables and installations for connection to the public electricity grid.

Legislation concerning the hunting of protected species

• Government Emergency Ordinance No. 81/2021 on immediate intervention methods to prevent and combat brown bear attacks on people and their property within localities’ built-up areas, and amending and supplementing certain legislative acts, and its approving law. It allows bears to be hunted even outside built-up areas, without the intervention or supervision of environmental authorities, on the grounds that they are aggressive bears. Such a measure comes despite the Romanian Government having done nothing to implement the Plan for conserving the bear species in Romania, adopted through Order 625/2018, which also provided coherent measures for managing aggressive bears.

• Hunting a large number of protected species: amendments to Hunting Law No. 407/2006 without compliance with the Habitats and Birds Directives, and adoption of numerous derogations for certain species: capercaillies, Order 2482/2022; several bird species, Order 165/2022, Order 2359/2022; legalising traps, Order 2802/2022. Also Order 1571/2022 approving harvest quotas for certain game fauna species for which hunting is permitted, for the period June 2022–14 May 2023, whose annexes are not public.

• Last but not least, the justice laws do not create the conditions for independent justice, as the number of magistrates and auxiliary staff continues to fall, while a lack of specialisation and very heavy workloads create problems in properly administering and managing pending cases.

In view of the concern expressed by both national and international NGOs signing this letter, we call on Romania’s Parliament, Romania’s Government and President Klaus Iohannis to respect their commitments to the Romanian people and the European Union.

This letter remains open for interested people to sign from today, its launch date, 13 December 2022, until all these harmful bills that destroy the rule of law in Romania are rejected or amended.

Press contact:

Cătălina Rădulescu, 0745138165, office@agentgreen.org