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REPORT ON THE APPLICATION

BY THE UNION OF LEGAL ADVISORS’ COLLEGES OF ROMANIA

(UNIUNEA COLEGIILOR CONSILIERILOR JURIDICI DIN ROMANIA)

FOR FULL MEMBER STATUS OF THE CCBE

SEPTEMBER 2007

  1. The request of the Union of Legal Adviser Collages of Romania.
  2. The task (appointment and fulfilment).
  3. General background.

III.1. Geography.

III.2. History.

  1. The legal professions in Romania.

IV.1. The lawyers in Romania.

IV.2. The legal advisors in Romania.

IV.2.1. The “Union”.

IV.2.2 The Statute of the Union.

IV.2.3. The Deontological Code of the Union.

  1. The situation before and after the decision no. 22/2006 of the High Court of Cassation and Justice of Romania – United Sections.

V.1. The situation before the decision no. 22/2006.

V.2. The appeal of the general Prosecutor in the interest of the law.

V.3. The decision no. 22/06.

VI. The position of the Union of Legal Advisors (“Uniunea Colegiilor Consilierilor Juridici din Romania”).

VII. The position of the Romanian Bar (“Uniunea Nationala a Barourilor din Romania”).

  1. Conclusions (English and French).

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Summary of conclusions

What at the moment can be considered as serious obstacles to the admission of the Union as full member of CCBE are the following:

a)the lack of representation of the whole (or at least of the majority of) the profession of legal Advisors in Romania;

b)the decision no. 22/2006 of the High Court of Cassation and Justice of Romania, with all above mentioned implications.

Résumé des conclusions

Il apparaît que les obstacles importants à l’adhésion de l’Union comme membre effectif sont actuellement les suivants:

a) l’absence de représentation de l’ensemble (ou du moins de la majorité) de la profession de conseillers juridiques en Roumanie;

b) la décision 22/2006 de la Haute Cour de Cassation et de Justice de Roumanie avec les implications susmentionnées.

  1. The request of the Union of Legal Adviser Colleges of Romania.

By letter of February 5, 2007 (hereinafter: the Request), the President of the “Uniunea Colegiilor Consilierilor Juridici din Romania” (Union of the legal Adviser Colleges of Romania; hereinafter: the Union), Mr. Botond Zoltan Vaida, and the Secretary General, Mr. Lucian Florescu, asked the President of CCBE, Colin TYRE QC, the Union to become full member of the CCBE.

They mentioned that the Union represent approximately 13.000 members, and the structure includes 34 local organisations, which are also regional centres.

Their request was [quoted]

“based on the fact that law is practiced in Romania under two professional titles: “avocat” (lawyer) and “consilier juridic” (legal adviser), which is also confirmed by the Classification of Occupations in Romania (the category “lawyers” mentions the two occupations: “lawyer” and “legal advisor”) and the legal provisions that identifies the clients for the legal services of the two professional categories, namely:

  1. Legal professionals working under the title of “lawyer” defend the rights and legitimate interests of individuals – article 2 of Law 51/1995 on the organisation and practice of the lawyer profession.
  2. Legal professionals working under the title of “legal adviser” “defend the rights and legitimate interests of the state, central and local public authorities, public institutions and public and private legal entities” – article 1 of Law 514/2003 on the organisation and practice of the legal adviser profession.”

[ending of the quotation]

  1. The task (appointment and fulfilment)

At the Vienna Standing Committee of February 15, 2007, the author of the present work was appointed to report about the above mentioned Request.

On March 30, 2007, after the Standing Committee, a meeting was held in Brussels with Mrs. Mioara Alina COBUZ-BAGNARU, of the Bucharest Bar, representing the National Association of Romanian Bars (hereinafter: the Romanian Bar).

During the meeting (and shortly afterwards, via email), the following documents (in English, French and some also in Romanian were delivered:

  1. Romanian Law No. 51/1995 dated June 9, 1995,
  2. by-law of Romanian Lawyer’s profession,
  3. memorandum of Calin-Andrei ZAMFIRESCU, dated February 8, 2007,
  4. decision No. 22/2006 of the High Court of Cassation and Justice-United Sections dated June, 12. 2006,
  5. “examen critique des dispositions contenues dans le Statute de la profession de conseiller juridique”, written by Serban DELIGRADEANU,
  6. decision No. 57/2006 of the Prahova Court.

The day after, March 31, 2007, a meeting was held in Brussels with a delegation of the Union, composed by Lucian FLORESCU (Secretary General), Claudiu BURDUJA (Auditor), Marian NICULESCU (President of the National Association of Senior Civil Servants) and Carmen IONESCU (Head of the International Affairs Department of the Democratic Trade Union Confederation of Romania).

During the meeting, the following documents (in English and also some in Romanian) were delivered:

  1. Classification of occupations in Romania,
  2. Romanian Law No. 514/2003 dated November 28, 2003,
  3. Romanian Law No. 246/2006 dated June 22, 2006,
  4. Protocol for the Establishment of the Professional Federation “Union of Legal Advisers Colleges of Romania”, with attached Articles of Association and Statute of the Union,
  5. Deontological Code of the Romanian Legal Advisor,
  6. Statute of the Union, dated March 6, 2004, published in the “Monitorul Oficial”, Part 1, nr. 684 from July 29, 2004,
  7. letter dated July, 15, 2007 of the General Secretariat of the Romanian Chamber of Deputies to the President of the Union;
  8. certificate of registration of the Union as no-profit legal entity dated September 1, 2007,
  9. tax registration certificate dated September 8, 2007,
  10. decision No. 14/2004 dated June 4, 2004 of the Court of Bucharest,
  11. conclusions of the report No. 861/S/2004, 889/S/2004 dated September 22, 2004 of the Judge Inspector Doina Popescu, belonging to the Bucharest Appellate Court;
  12. interpellation dated May 30, 2005 of the Romanian Deputy Andrian MIHEI and answer dated June 15, 2006 of Romanian Minister of Justice;
  13. appeal in the interest of the law of the General prosecutor, Dr Ilie Botos;
  14. decision No. 22/2006 of the High Court of Cassation and Justice-United Sections,
  15. Petition of the President and the Secretary General of the Union to the European Commissioner for Justice, Franco FRATTINI.

On July 13, 2007, a joint meeting was held in the premises of the Romanian Bar, in the Bucharest Palace of Justice, at the presence of the following delegations:

  1. for the Romanian Bar:
  1. Georghe FLOREA (President),
  2. Calin-Andrei ZAMFIRESCU (Former President),
  3. Ionel Hasotti (Vice President),
  4. Mircea-Petre STANCULESCU (Vice-President),
  5. Mihai TANASESCU (Bucharest Bar),
  6. Lazar GRUNEANTU (Timisoara Bar),
  7. Raluca GRUNEANTU ( “ “ ),
  8. Mioara-Alina COBUZ-BAGNARU (Bucharest Bar),
  9. Veronica MORECUTZ (Romanian Bar);

B) for the Union:

  1. Botond Zltan VAIDA (President),
  2. Lucian FLORESCU (Secretary General),
  3. Ramona TISANU (BucharestCollege).

During the meeting,

  1. the Romanian Bar delivered the following documents (in English or Romanian – hereinafter indicated with R -language):

- law No. 31/1990 on trading companies,

  1. collaboration protocol dated December 7, 2005 between the College of Legal Advisers Bucharest and the Bucharest Bar,
  2. request of the Union + 33 members to the Court of 4th district (case nr. 15392/4/2006,
  3. statement of claim formulated by the High Court of Cassation and Justice in the same case (R),
  4. idem by the Romanian State (R),
  5. idem by the Romanian Government (R),
  6. idem by the National Trade Registry Office (R),
  7. idem by the Public Ministry (R),
  8. idem by the Ministry of Justice (R),
  9. 3 requests formulated before the Galati Court (R),
  10. request “ “ “ “ “ (R),
  11. 2 requests formulated before the Court of Cluj (R),
  12. deliberation of the General Assembly of the Satu Mare Bar (R),
  13. notification dated November, 24, 2006 of the Union (R),
  14. 2 requests of 40 commercial companies established by legal advisors to the Court of Cassation and Justice (R),
  15. press communicate (R),
  16. request of 40 commercial companies established by legal advisors to the European Court of Human Rights (R),
  17. by-laws of the Association of the Legal Advisers within the finacial banking system (R),
  18. Association Electronic Forum of the Legal Advisers in Romania (R),
  19. Association of Legal Advisers Bacau (R),
  20. Association of the Legal Advsers within the Public Administration “Fidelis Legis”.

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  1. the Union delivered the following documents:
  1. certificate of eligibility of Simiona Mioara FALTICEANU under regulation nr 12 signed by Antony Townsend, Chief Executive of the UK Solicitors Regulation Authority, dated July 5, 2007,
  2. letter of the President and the Secretary General of the Union to the Professional Competence Team of the Solicitors Regulation Authority, dated July , 2007,
  3. decision of the Union approving the acceptance application of Titi TARLUNGEANU as associated member of the Bucharest College of Legal Advisors, dated July 2, 2007;
  4. letter dated February 2, 2007 of the President and the Secretary General of the Union to the Professional Competence Team of the UK Solicitors Regulation Authority.

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On April 30, 2007, a letter from the “National Union of Legal Advisers Colleges – LegalAdvisersCollege of Satu Mare” was sent to the Swedish Bar Association.

We understand that similar letters were sent by the same addresser to other EU National Bars.

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  1. General background

III.1. Geography

Romania (48° - 44° latitude Nord; 20° - 30° Longitude East) is a Eastern Europe state.

It borders with Serbia and Hungary westwards; with Ukraina to the north; with Moldova and the Black Sea eastwards; with Bulgaria southwards.

It has a surface of 238.391 Km2 and 21.680.974 inhabitants (in 2002: the expectation for the future is a fall of the number of inhabitants, owing to the strong emigration towards western European Countries).

The capital is Bucharest (Bucuresti) (1.927.559 inhabitants in 2004).

The most important river is the Danube.

The official language is the Romanian, which is a neo-latin language which originated directly from the Latin, like Italian, French, Spanish and Portuguese.

III.2. History

At the beginning of II century a. C., the roman Emperor Trajan conquered the region called Dacia, which approximately corresponds to nowadays Romania.

After the conquest, Trajan sent to Dacia a lot of colonists from all the Roman Empire; as a consequence of this massif introduction of Latin speaking people, shortly after in Dacia people began to speak Latin as main national language, setting aside the original dialect.

Romanisation of Dacia lasted even after the fall of the Roman Empire, during barbaric invasions and afterwards.

Even if it is not completely clear the range of the clearing out of Dacia from the Latin population to south of the river Danube, which was ordered by the Emperor Aurelian about in 274 a. C., because there was an historical black out about the region until the XIII century, it is sure that in the XIII century, when we have again historical reports about this region, the population of Valacchia was latin (Valacchi, Vlacci, Vlach, from the ancient German Welsch, means latin).

In the XIII century, a considerable part of Transilvania was already occupied by Magyars and by Saxon colonists sent by Hungarian kings; between Carpathian mountains and the river Dnestr there were Slavs.

But between XIV and XIX centuries the roman/latin ethnic unity prevailed, and formed the Romanian nation.

Between XIV and XVII centuries, the Romanian princes, called voivodes, of Valacchia and Moldova fought strongly against Hungars (who were dominating Transilvania) first, against Turks and Poles afterwards.

On December 11, 1861, the Union between Valacchia and Moldova was proclaimed, and a new Prince was elected by European Powers in the erson of a Moldovan Colonel, Alezander Cuza, with the name of Alexandru Ioan I.

After a putsch, the Prince Karl of Hohenzollern-Sigmaringen was elected Prince of Romania; after the war between Turkey and Russia, in 1880 Romania became an independent state, and Karl became the first Romanian king.

After the second world war, the Romania was occupied by the Russian army, and forced to become communist, as PopularRepublic, from 1948.

In the end of December 1989, the Dictator Ceausescu (who had conquered the power in 1965) was put aside and executed.

From 1st January 2007, Romania is member of the European Union.

IV. History of the Legal Profession in Romania.

The legal profession exists in Romania at least from 1831.

Until 1944 there were lawyers and public lawyers.

After the war, in 1948, there were approximately 17.000 lawyers all over the country, who were severely persecuted by the Communists, so that, at the end of the same year only about 800 lawyers remained in Romania.

Until1955 only one legal profession existed in Romania.

In 1955, the Russians, who were dominating Romania, introduced a law – Decree No. 143/1955 regarding the organisation and functioning of law offices, which lasted until 2003 - by which, besides the lawyers, the new category of “corporate lawyers” was created: it dealt with public employees, belonging to legal departments within public institutions (under Communism, no private entity existed).

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IV.1. The lawyers in Romania.

After the revolution of December 1989 and the fall of Communism, in 1995 the law nr. 51 was approved by the Parliament for the organisation and practice of the lawyer’s profession (Art. 1) “free and independent, based on an autonomous organisation and functioning under the terms of the law and the by-law of the profession.

The lawyer’s profession shall only be practised by lawyers appearing in the Table of Lawyers of the bar thy belong to, a bar, which is a member of the National Association of the Romanian Bars, hereafter called U.N.B.R.

The establishment and functioning of bars outside the U.N.B.R. shall be prohibited. The documents for their constitution and registration shall be null and void.”

Art. 2 (paragraphs 2 and 3) provides that A lawyer shall promote and defend human rights, freedoms, and legitimate interests.

A lawyer shall be entitled to assist and represent natural and legal entities before the courts of judicial authority and other jurisdictional bodies, criminal inquiry bodies, public authorities and institutions, as well as before other natural or legal entities…

Art. 3 provides a very wide range of activities for a lawyer, included:

“a) legal consultancy and petitions;

b) legal assistance and representation before courts of law, criminal inquiry bodies, jurisdictional activities, …;

c) drawing up legal documents, and certifying the parties identities and the contents and dates of documents submitted for authentication;

d) assistance and representation of interested natural or legal entities before public authorities…;

e) defence and representation, using specific means, of the legitimate rights and interests of natural and legal entities before other public authorities, institutions, and any Romanian or foreign entity;…”.

The lawyer can practise in the following forms: individual law offices, associated law offices, professional civil companies, limited-liability professional civil companies (Art. 5).

According to Art. 16, paragraph 2, letter b), a person who has acted as a legal advisor for at least 10 years may be accepted to the profession of lawyer, on request, being exempted from the examination.

In Romania there are now approximately 19.000 lawyers, registered by 41 bars.

The Council Directive 2006/100/EC of November 20, 2006, adapting certain Directives in the field of freedom of movement of persons, by reason of the accession of Bulgaria and Romania, in its annex sector II (regarding the legal profession), provides that in Art. 1(2) of the Council Directive 77/249/EEC of March 22, 1977 and in Art. 1(2)(a) of the Directive 98/5/EC of the European Parliament and of the Council of February, 16, 1998, the following is added:

“Romania Avocat”.

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IV.2. The legal advisors in Romania.

Legal Advisors were introduced in Romania by the law nr. 514/2003 of November 28, 2003.

“The legal advisor defends the legitimate rights and interests of the state, of the central and local public authorities, of public and public interest institutions, of other public entities, and of private entities, served by the advisor, in accordance with the Constitution and the laws.”(Art.1)

The new law extended the activity of legal advisors, in comparison with the former “corporate lawyers” of the communist era, to private entities, that before did not exist.

According to Art. 2, “a legal advisor may be appointed or employed”: in the first case, he “has the status of public servant”; in the second case, “he has the status of an employee.”(Art. 3).

“A legal advisor provides advice and representation for the served public authority or institution, or for the employing entity, protects their legitimate rights and interests in their relation with public authorities and institutions of any kind, and with any natural or legal person, Romanian or foreign; according to the law and any specific bylaws, approves and countersigns legal documents.”(Art. 4)

“Legal advisors may establish professional associations to defend and protect their professional interests, according to the law on association and establishment of legal entities.” (Art. 5) and “may associatein county-level structures, by industries or areas of activity, according to their professional interests and, as the case may be, at national level, in keeping with the law on associations and foundations. The forms of association and organisation at county and national level are established in the statutes of the association, required by the law. Professional associations are established are established based on the constitutional principles of the right to association and the legal provisions on association and establishing legal entities.”(Art. 20).

Professional associations had to be established and their statutes had to be adopted within 90 days of the law 514/2003 coming into force (from the coming into force of the law, al existing professional associations of legal advisors had to cease to function. (Art. 25)

According to Art. 8, to become a legal advisor it is necessary to have been graduated from a law school.

No State examination is needed, but (s. Art. 12) the legal advisor must undertake a 2-year internship, having the capacity of an intern legal advisor during that period (the requirements for the internship are specified in the law on lawyers).

Art 14 provide that, when he/she submit his conclusions (to law courts of all levels and tribunals, to criminal prosecution bodies, to other administrative authorities and bodies having jurisdiction: Art. 13) the legal advisor has the obligation to comply with the professional ethic rules of lawyers.

Art. 22 provides that the legal advisor is liable for disciplinary action for failure to comply with the provisions of the law514/2003 “and the legal rules for the activity of the served entity. Establishing a disciplinary offence, investigating it, the trial procedure and the disciplinary penalties are those stipulated in the regulations pertaining to the entity served by the legal advisor. The disciplinary authority can be informed by the prejudice person or by the professional association.”

Another recall to the professional law on lawyers is provided by Art. 21, where you can read that the professional association of legal advisers keeps records of advisors under similar conditions to records kept by attorney bars.