The civil service at Romania's centennial

Author:Irina Alexe, PhD
Pages:26-44
SUMMARY

In any modern state, an essential role in its functioning is played by the public servants, both in defining, but especially in applying public policies, as well as in exercising the public authority. In this study, the author will analyze the distinction between the notions of civil service, public authority and public office, the evolution of the notions of civil service and public servant, in close connection to the evolution of the Romanian state in its 100 years of existence and, will equally observe the European influence in this matter. The necessity of the existence of the civil service and the necessity of a strongly qualified personnel should also be emphasized, context which lead to the first regulation of the statute of the Romanian public servants and the subsequent evolutions, the recent amendments of the applicable legislation in this field provided in the Law of the Administrative Code of Romania, as well as the development tendencies of the civil service.

 
CONTENT
26 IRINA ALEXE
THE CIVIL SERVICE AT ROMANIA’S CENTENNIAL
Irina Alexe, PhD
MOTTO:
„O idee capital pe care o aduc aceste organisme
[Institutul de ştiine administrative, cu organul su de
publicitate Revista drept public, care şi-a câştigat uşor o
reputaie mondial, şi cu anexa sa Şcoala superioar de
documentare şi de ştiine administrative] [n.a.] în viaa
Statului nostru este c numai printr`o temeinic pregtire
profesional a funcionarilor publici se poate aduce o
îndreptare ad-iei noastre. Democraia, având menirea s
asigure cea mai mare fericire pentru cel mai mare numr, îşi
sprijin întreaga ei existen pe aceast mass de
funcionari, prin bunvoina, înelegerea şi priceperea
crora poate s-şi înfptuiasc postulatele ei.”
Paul Negulescu, Romul Boil, George Alexianu,
Cuvânt de lmurire la Codul administrativ adnotat,
Institutul de Arte Grafice „VREMEA”,
Bucureşti, 1930, p.X.
Abstract
In any modern state, an essential role in its functioning is played by the public servants, both in
defining, but especially in applying public policies, as well as in exercising the public authority. In
this study, the author will analyze the distinction between the notions of civil service, public
authority and public office, the evolution of the notions of civil service and public servant, in close
connection to the evolution of the Romanian state in its 100 years of existence and, will equally
observe the European influence in this matter. The necessity of the existence of the civil service and
Research associate, ”Acad. Andrei Rdulescu” Legal Research Institute of Romanian Academy;
principal areas of interest: Administrative Law, Constitutional Law and European Law;
irina_alexe@yahoo.com. The paper was prepared for the National conference titled “100 years of
law”. organized in Târgu-Mureş on the 21st of October 2018. The project ”100 years in 10 days” was
dedicated to the Centennial of the Great Union and was financed by the Ministry of Culture and
National Identity, through the cultural project no.5245/10.10.2018. The informations comprised in this
text were updated on the 25th of October 2018, which is the last time when the websites were
consulted.
Law Review vol. VIII, issue 2, Jul
y
-December 2018, pp. 26-44
The civil service at Romania’s Centennial 27
the necessity of a strongly qualified personnel should also be emphasized, context which lead to the
first regulation of the statute of the Romanian public servants and the subsequent evolutions, the
recent amendments of the applicable legislation in this field provided in the Law of the
Administrative Code of Romania, as well as the development tendencies of the civil service.
Key-words: civil service; public authority; public dignity; public servant; European public
servant; civil servant’s statute; the Administrative Code of Romania; subsequent developments in
this field.
I. Short introduction
A myriad of celebrations took and will take place in 2018, in order to
rememorate the Centennial of the Great Union. In this context, organizing
conferences, publishing articles and issuing publications in the law field are
representing subsequent pursuits under the same major objective. We are
convinced that in law, similarly to history, it is of utmost importance to know the
past, in order to understand the present and to furtherly analyse the future
tendencies of the diverse concepts or institutions, as well as the subsequent
development necessities, closely linked to the evolution of the state.
It is widely known that, nowadays, the Romanian state is not in the same
borders which were established in the aftermath of the historical events of 1918,
and that Romanian territories and citizens, which in the interwar period were an
integral part of the Greater Romania, are today parties of neighbouring states. The
analysis presented hereafter should not refer to these aspects.
The present study, concerning the civil service at Romania’s Centennial, will
be structured in seven parties, which are to be simultaneously regarded from an
historical and transformational perspective of the Romanian state. The underlying
reasoning of this approach was that multiple events, some joyful, some really
tragic, intervened not only in the evolution of the state, but also influenced the
statute of the Romanian civil servants.
This studying was conceived by studying the primary sources, this is to say
the texts of the normative acts, as well as the subsequent statements of reasons, but
also, in some cases, by observing the parliamentarian debates which took place
during the adoption of the law, while we also used the relevant doctrine of the
interwar period, widely benefiting from the pertinent commentaries of the
illustrious public law professors from the four renowned universities of the
Greater Romania, Bucharest (Paul Negulescu), Chernivtsi (George Alexianu), Cluj
(Romul Boil) and Iaşi (Constantin Stere), equally analysing and quoting
inclusively the recent doctrine in the matter.
28 IRINA ALEXE
Starting with a short introduction and following with the emphasis of the
specific aspects of the prestatutory period, which lead, by 1923, to the appearance
of the first statute of the civil servants, the study deliberately highlights the
statutory period, analysing as well, in a concise manner, the communist period
which had a 50-years span, ranging from the end of 1949 to 1989, during which the
public servant was considered a ”working-class hero”, subsequently marking the
main moments and reasonings which lead, in 1999, to the appearance of the first
post-revolutionary law which regulated the statute of the Romanian civil servants.
A generous amount of space was granted not only to the multiple amendments
and supplementations added to the substance-matter of the 1999 law, still in force
in the present day, but also to the trends of the main legal institutions included in
the statute. Hence, are analysed the distinction between the notions of civil service,
public authority and public office, the evolution of the notions of civil service and
public servant, in close connection to the evolution of the Romanian state in its 100
years of existence and the European influence in this matter. Also, necessity of the
existence of the civil service and the necessity of a strongly qualified personnel
should also be emphasized, and, particularly the necessity, in the present context,
of highly-qualified personnel, the recent amendments of the applicable legislation
in this field provided in the Law of the Administrative Code of Romania, as well as
the development tendencies of the civil service. The study will conclude with a few
considerations through which the development trends of the Romanian civil
service are to be marked.
II. The pre-statutory period
In his Constitutional Law course, meant to determine the students to better
understand the notions, the young Professor George Alexianu makes a connection
between the Administrative Law and the Constitutional Law, showing the
hardship of this demarche because „given that the Romanians had a written
Constitution only a few decades ago, the old law is getting scattered in traditions,
in customs, in treaties and charters. Notwithstanding, we can observe four periods:
1. From the ancient times up to the foundation of the Romanian Principalities (1290
for Muntenia, 1320 for Moldova)
2. The second period. The consolidation of the Romanian principalities.
3. The third period – From the Kings up to this day.”1
During the analysis of the civil service in the pre-statutory period, we aim
solely at the latter of the aforementioned periods, in order to facilitate the
understanding of the centennial presented in this study.
1 For further details please refer to George Alexianu, Dreptul constituional, Editura Librriei
Socec & Co., Bucharest, 1926, p.61 ff.
The civil service at Romania’s Centennial 29
In accordance with the provisions of art. 132 (5) of the Romanian Constitution
of 1866, a special law “on the admissibility2 and advancement conditions in the
field of public administration”3. However, this was not realised without undue
delay, but only a few decades later, after the moment when in the Greater Romania
a new Constitution was adopted, in 1923.
According to the doctrine from that period, “during this time, the public
servants were led by the organic laws – when they existed – or left to the mercy of
the political fluctuations. Among the public servants which had – to some extent –
a legal framework providing warrants against administrative abuses we can
consider the magistrates, the secondary education teachers, members of the
academia, schoolmasters, the advisers of the Court of Accounts, the medical
doctors, the technical corps, the public servants of the Ministry of Instruction and
Cults, the Ministry of State Property, of the Postal services, Telegraphs and
Telephones, etc.”4
We hereby present ad litteram this explanation in order to underline the
differences between the different personnel categories considered, in that period,
as being part of the public servant category and those which are regulated
nowadays by the Statute. We deem such a comparison as necessary, in order to
show that not all of the features of the public servants from the pre-statutory
period, and, as it is to be observed in the following section, from the statutory
period, are still available today. According to the law5, the Statute is not applicable
to the magistrates, nor to teachers or schoolmasters, nor to the medical doctors or
to the contractual staff or other staff categories which are not exercising public
power prerogatives. Also, the statue is not applied to the advisers of the Court of
Accounts, neither to the elected or appointed public dignities or to the staff of the
cabinet of a dignitary.
With all the differences, the mission of the public servants remained, for its
most, the same through the years.
2 English translation unavailable. In order to facilitate the comprehension, we hereby present the
original: „asupra condiiunilor de admisibilitate şi de înaintare în funciunile administraiunei
publice”
3 The 1866 Constitution of Romania was published in the Official Journal of Romania
no.142/1.06.1866 and is available at http://www.cdep.ro/pls/legis/legis_pck.htp_act_text?idt=37755
4 For an analysis of the field, please refer to George Alexianu, Statutul funcionarilor publici,
Editura Cultura Naional, Bucureşti, 1926, p.6 ff.
5 In this sense, please refer to the articles1-6 of the Law no.188/1999 on the Statute of civil
servants, amended and supplemented. The Law no.188/1999 was published in the Official Jo urnal of
Romania no.600/8.12.1999, subsequently amended and supplemented, republished two times and
furtherly amended and supplimented inclusively at the second republication. According to the Law
of the Adminsitrative Code of Romania, the Law no. 188/1999 is to be abrogated at its entry into force
and is available at the address, http://www.cdep.ro/pls/proiecte/docs/2018/pr369_18__1_.pdf
30 IRINA ALEXE
III. The statutory period
After the Union of the Romanian principalities, the Constitution of 1866
became obsolete, despite the fact that it was amended and supplemented three
times, in 1879, in 1884 and 1917, and once again in the course of 1918. In order to
consecrate the events which took place, but also in order to try to establish
applicable norms on the entire territory of the new state, desideratum which will
be accomplished solely more than 20 years later, and to create the foundation for
the modern regulations in the field of the Public Law which followed in the years
of the interwar period, the text of the first Constitution of the Greater Romania6
was adopted in Mars 1923.
The Constitution of 1923, qualified as one of the most modern, regulated, in
accordance with the provisions of its art. 8, the right of the Romanian people of
being equals before the law, without any discrimination of origin, social or ethnical
criteria, language or religion, as well as on the duty to contribute to the public
deeds. Also, it consecrated the right of the citizens to have access to the civil service
and to public dignities, civilian or military, and it established the Constitutional
basis for issuing special laws through which “the Statute of the civil servants shall
be determined”. The same constitutional text was introducing, under the form of a
prohibition, the possibility to admit in exceptional circumstances, provided for by
the law, foreigners in the public service.
The text of art. 8 established the legal basis for adopting a Statute of civil
servants, while other constitutional provisions established the boundaries or
guidelines for the regulation of such a Statute, such as, for example, the one
provided for in the text of art. 26 (4) c), concerning the ruling, by ordinary courts,
in accordance with the common law, on the press offenses aiming at ”calumny,
slander, defamation imputed to private persons or civil servants of any nature,
touched in their private life or in their sincerity”, in the text of the art. 31,
concerning the fact that “no prior authorisation is necessary in order to exert
proceeding against public servants for the actions resulted from their
administration on injured party, without touching the special rules settled with
regard to the minsters”, in the text of art. 99, concerning the several liability of the
ministers which issued illegal acts or acts which contravened to the Constitution,
which caused prejudice to the injured party, with the civil servants which
countersigned the respective acts, with the exception of the servant which “called
the attention of the ministry, in written”, or the text of art. 107, which regulated the
administrative appeal and the remedy under the form of civil remedies which
could be placed, by the instance, under the responsibility of the civil servants.
6 The 1923 Constitution of Romania was published in the Official Journal of Romania
no.282/29.03.1923 and is available at http://www.cdep.ro/pls/legis/legis_pck.htp_act_text?idt=1517
The civil service at Romania’s Centennial 31
III.1. 1923 – Statute of civil servants
Under these constitutional conditions and boundaries, was adopted, in 1923,
the first law which regulated the Statute of civil servants7, whilst the Decree8
containing the implementing act was adopted later in the same year. Both of the
normative acts took force and were applicable since the 1st of January 1924, thus
establishing the legislative framework for regulating the Romanian civil service.
Structured in two parts, the first part is composed by the provisions applicable
to all the civil servants, with seven subsequent chapters, while the second one makes
reference to special provisions, with other seven subsequent chapters. The Statute,
together with its implementing act, try, and succeeded, for a relatively short period
of time, to draw a new legal situation, modern and progressive, for the civil servants,
and a part of the principles provided for in the 1923 law have been subsequently
taken over in the post-1989 legislation concerning to civil servants.
Starting with a chapter on the conditions of eligibility of a civil servant9 as well
as to the staff categories of the administration to which the Statute is applicable
(political and elective functions, archbishops and bishops, servants of the Law-
making bodies which bear a statute of their own, foreign specialist to which a
public function was temporary granted by contract, as well as temporary staff), the
first part of the regulation establishes the general admissibility conditions in the
civil service, stability in the civil service, closely linked to the irremovability of
some of the categories of civil servants expressly provided for by the law, their
duties and responsibilities, the applicable incompatibilities, their salaries, their
indemnities, their pensions and vacations, as well as the right of the civil servants
to establish associations for cultural or economic purposes or for serving to their
professional interests, subsequently providing the rules for their establishment,
functioning and dissolution.
The second part of the Statute establishes for the very first chapter the subject-
matter to which the respective norms are applicable10. We thus observe that there
7 The Law on the Statute of civil servants, adopted by the Senate in its session of 30 May 1923 and
by the şi Chamber of Deputies in its session of 8 June 1923 was promulgated by Ferdinand I of
Romania on the 15th of June 1923 and published in the Official Journal.
8 Decree no. 5.506 of 23 November 1923 for the approval of the Implementing regulation of the
Law on the Statute of civil servants.
9 According to art. 1 of the Law, „Are civil servants the Romanian citizens, without gender
discrimination, which are fulfilling a permanent public service (civilian and ecclesiastical) at the State
level, county level or communal level or in the institutions whose budget is subjected to the approval
of the Parliament, to the Government, or to the County or Communal Councils. In this quality, they
will enjoy the rights and will be subjected to the specific obligations presented in the Statute.
10 According to the art. 33 of the Law „The following provisions are applicable to all the public
servants, with the exception of magistrates, the members of the diplomatic and consular staff,
didactics, ecclesiastical, and of the member of all the technical and specialized staff, to which are
applicable the provisions of the organic laws, as well as the servants of the Legislator Bodies, whose
organisation is established by the interior regulation of every legislator body, which constitutes their
Statue.”
32 IRINA ALEXE
is a myriad of staff categories which, prior to the 1923 law, keep their own statutes,
despite being eligible to enter under the force of the statute. These aspects
notwithstanding, we appreciate the attempt to standardize the norms and to
introduce objective criteria for the filling and exercise of public dignities.
Hence, the classification of the public administration is made in the second
part of the statute. The regulation of the classification of the public functions is
closely linked to this classification, or, as the case, establishes the legal basis for this
classification to be subsequently realised, through subsequent acts, providing
conditions that is should be “adopting the names and making the equivalence, as
much as possible, with those established for the central administrations”11.
The admissibility conditions in these public offices are also provided,
supplementary to those regulated in the first part of the statute, and the rules
concerning the nominations and submissions are detailed, as well as the
mechanisms for ensuring that these are based on professional, meritocratic criteria,
after having passed through several mandatory steps and after having promoted
competitions dedicated to this goal. Also, there are established exceptions from
these rules, stating the “the lawful authority may deviate from the norm when the
proper functioning and the interest of the service requires it, but only with the
assent of the commission for nominations and submissions.”12. We therefore
observe that the exceptions are accompanied by minimum warrants, as well.
A distinct chapter is dedicated to the interinstitutional transfers and
secondments and another one to the disciplinary regime, establishing not only the
disciplinary measures13, similar to those regulated nowadays in the statute, but
also the procedure in case of disciplinary responsibility, as well as in case of
disciplinary suspension, respectively the required procedure in the case in which a
proceeding incurs the criminal liability of a civil servant. In another chapter, the
sixth, are established the rules for gathering disciplinary committees at the level of
central and local administrations, stablishing that their members, as well as the
substitutes, are to be named through a Royal Decree, with a three-year mandate.
From the ample regulations included in the last chapter of the second part of
the statute, entitled “Various and transitory provisions”, resides the attention of
the lawmaker for ensuring the correct functioning of the administration and for
preparing the application of the new norms. Hence, apart from establishing a 6-
month from the promulgation of the law to its enforcement, on the 24th of January
11 Please refer to art. 34 of the Statute.
12 Please refer to art. 47 of the Statute.
13 In accordance with the provisions of art. 51 of the Statute, the Disciplinary penalties are: 1.
Verbal reproof; 2. Reprimand with the loss of the salary for a maximum of 15 da ys; 3. Erasing off from
the poster board; 4. Disciplinary transfer; 5. Exclusion from the service for a maximum of 6 months
with the loss of the salary; 6. Dismissal; 7. Destitution. The time in which the civil servant is excluded
or in dismissal does not count as professional experience.”
The civil service at Romania’s Centennial 33
1924, establishing the time in which the authorities were supposed to adopt not
only the implementation act but also the technical and organisational measures for
an effective implementation. Also, several transitory situations were regulated, in
order to give due time to allow the civil servants which failed to comply with the
conditions of the new statute to fulfil the legal conditions, as, for example, the
conditions regarding the legal age (21 years old) or the fulfilment of the obligations
linked to the military service or the educational requirements. Transitional
provisions have also been regulated for the state and authorities, which had the
obligation to adapt their public services and their organisational schemes in
accordance with the new regulations.
The scientific papers from this period14 showed not only the benefits of the first
Statue of civil servants, but also the difficulties of its application, especially in the
context of the transformations which took place in the Romanian state and with the
consideration of the case-law in the matter, aspects which will not be furtherly
reiterated. It is important to mention, nevertheless, that the Journal of the Council
of Ministers of 11th of November 1928 established the Legislative Committee,
whose President was Paul Negrescu (Public Law Professor at the University of
Bucharest, member of the International Public Law Institute of Paris), and among
its members Constantin Stere (Public Law Professor at the University of Iasi,
member of the Chamber of Deputies), Romul Boil (Public Law Professor at
University of Cluj, Vice-President of the Senate), and George Alexianu (Public Law
Professor at the University of Chernivtsi), committee which drafted the
preliminary project of the Law on local administration and of the Law on the
reorganization of the ministries, respecting inclusively the principles included in
the first Statute of civil servants. In the speech presented by Iuliu Maniu15, the
president of the Council of Ministers before the Chamber of Deputies on the
occasion of the debate of the draft law on the organisation of the ministries, were
underlined not only the efforts, but also to the obstacles in realising the ideal of
national union, the connection of this new law with the existent legal framework,
as well as the importance of such a regulation which could place the organisation
of the state on a stronger base, to lead to the decentralisation of the pubic power
and its subsequent evolution, including by the service of the civil servants.
Nevertheless, legislative amendments took place in a continuous manner, and
aimed inclusively at the juridical situation of the civil servants. For example, in the
14 The first one to realise an in-depth analysis of the field, compared to the extensive regulation at
that time in other European states, but also in emphasizing the relevant jurisprudence in the field,
emphasizing the principle of stability, as well as the principle of the immovability of the civil servants,
was realised in 1926 by the lawyer and professor George Alexianu. In this sens, please refer to George
Alexianu, Statutul funcionarilor publici, op. cit.
15 In this sense, please refer to, Discursul D-lui Iuliu Maniu, Preşedintele Consiliului de Miniştri,
pronunat în Adunarea Deputailor, in Paul Negulescu, Romul Boil, George Alexianu, Codul
administrativ adnotat, Partea I, Institutul de Arte Grafice „VREMEA”, Bucureşti, 1930, p. 145 - 159.
34 IRINA ALEXE
commentary made for the art. 88 of the 1923 Constitution, professor Alexianu
appreciates the following elements: “Acknowledging to the ordinary legislator the
right to suppress a function through a Public Administration law, it follows to
acknowledge its right to amend the conditions for its fulfilment and, in this
manner, to discard the servants which it deems useless, because they don’t fulfil
the new conditions. This should happen even when the lack of compliance with
the conditions derives from a factual situation considered as legal under the old
law, - because the right to a function of the public servant is made through the law
and is maintained as long as the sanctions it, because the public function cannot be
the object of economic rights, and, as such, cannot discuss, in this matter, about
earned rights, but solely of an objective legal situation, created, maintained and
suspended only through the willingness of the legislator”16.
Also, the new Constitution of Romania of 193817, brought substantial
amendments to the organisation of the Romanian state but, even if with regards to
the Statue of Civil Servants, the article 27 takes, for its most, the provisions of the
1923 Constitution, after the application of the new regulation the Statute of Civil
Servants of 1923 was abrogated in 1940, through the Code of Civil Servants (Carol
II of Romania).
III.2. 1940 – The Code of Civil Servants
On the 8th of June 1940 was published the first Code of Public Servants18,
which comprised, as well, provisions applicable to all the civil servants but also
special provisions concerning the recruitment, the career evolution, the rights and
obligations, the incompatibilities or the disciplinary regime, which shall not be
furtherly emphasized, because the Code’s application was not unitary nor coherent
in time, in the context in which the Romanian state was crippled in 1940 by the
well-known territorial ruptures, followed by a long period of war. Important
amendments have been made to the Code, especially with regard to the public
functions and the seniority, the applicability of the disciplinary measures in
exceptional situations19, the Statute of the Prefects20 or the disciplinary procedure21.
16 George Alexianu, Curs de Drept Constituional, vol. III fascicola II and the last one, Editura Casei
Şcoalelor, 1937, p. 366.
17 The 1938 Constitution of Romania was decreed on 20 February 1938, being subjected to a
plebiscite on 24 February 1938. It was promulgated by the King Carol II of Romania through the
Royal Decree no. 1045 of 27 February 1938 and published in the same day in the Official Journal of
Romania no. 48. The text is available at http://www.cdep.ro/pls/legis/legis_pck.htp_act_text?
idt=9206
18 The Code of civil servants (Carol II of Romania) was approved by the Decree-Law no. 1904 of 7
June 1940 and was published in the Official Journal of Romania no. 181/8 of June 1940.
19 For further details, please refer to the Law no. 45/1942 for the establishment of some
obligations imposed to the public employees in exceptional situations, published in the Official
Journal of Romania no. 15/19 of January 1942, subsequently amended and supplemented through the
The civil service at Romania’s Centennial 35
It should be mentioned, nevertheless, that two weeks after the publication of
the Code in the Official Journal of Romania, another law with a huge deal of
impact was published and entered into force22, affecting, in our opinion, the
essence of the Statute of Civil Servants, concerning the stability in the function and
the political neutrality, in the lack of which we appreciate that it is impossible to
provide a professional public service23. Through the second article of this new
normative act was established the fact that “it cannot be a civil servant one which
is not member of the Party of the Nation. Those which will not request their
subscription until the 1st of August 1940 at latest, as well as those which will not be
accepted after having requested their subscription, are revoked ex officio at this
date. This provision is not applicable to the active military personnel.”
While understanding, yet not agreeing with the rationale leading to the
introduction of such a norm in the Romanian legislation, we will not further detail
the motivation. We need to underline, nevertheless, the existence, in that period, of
a political regime which could be catalogued as being a dictatorship, as well as a
massive involvement and the constraints brought by the political power not only
to the statute, but also to the private life of public servants.
In the aftermath of the Second World War, the Code was abrogated, and the
new political power established in Romania after the 6th of March 1945 adopted
new normative acts concerning the civil servants.
III.3. 1946 – The Statute of Civil Servants
One of these new normative acts, adopted after the events of 23 August 1944,
in the context of the reintroduction of the 1923 Constitution, is the Decree-Law
no. 746/194624, which regulated the new Statute of Civil Servants, abrogating the
1940 Code.
Law no. 47/1944, published in the Official Journal of Romania no. 23/28 of January 1944, which
regulated the jail penalty for the civil servants which absented from their posting without a prior
notification.
20 Please refer to, for example, art. III of the Law no. 573, published in the Official Journal of
Romania no. 261/10 of November 1944, which established that the prefect position is not taken into
account for the period provided for in the art. 200 of the Code of civil servants. Subsequently, art. 200
of the Code was amended and supplemented, through the law no. 824 and through the Law no. 558
of 1944.
21 Please refer to: Law of 22 September 1940, for the dissolution of the Royal Residencies and the
reorganisation of the County Prefectures; Law no. 116/1945 on the amendment of art. 147 of the Code
of civil servants, published in the Official Journal of Romania nr. 44/23 of February 1945, through
which is introduced in the code a new disciplinary procedure.
22 It is the Decree-Law for the defence of the unique and totalitarian political order of the
Romanian state, published in the Official Journal of Romania of 22 June 1940.
23 On the political neutrality of civil servants, please refer to Irina Alexe, Înalii funcionari publici,
Editura Universul Juridic, Bucharest, 2014, p. 226 ff.
24 Decree-Law no. 746/1946 for the Statute of civil servants of 20 September 1946 was published
in the Official Journal of Romania no. 220/22 September 1946.
36 IRINA ALEXE
This new Statute also comprised general provision aiming at its field of
application, entering into function (conditions for the nomination, the pledge and
the stability in the function), reintegration, personal files, rights and obligation
aiming not solely to the career, remuneration and social insurances, some political
rights and the right of the civil servants to gather in Unions. The new regulated as
well the duties of the servants, as well as the special and transitory provisions.
An obvious regression is brought by this normative act with regard to the
necessary studies in order to fill a public function, but we underline some positive
aspects of the regulation, aiming at ensuring a legal situation of the civil servants
which were previously dismissed for their religious or political convictions,
respectively the statute is accompanied by two annexes, called tables, through
which are established the alphabetical indicators of the nomination functions,
which comprise the function, the minimal level of studies and training necessary to
fulfil the post, and respectively the base-pay.
This normative act, likewise to the previous one, have not benefited from a
long application period, entering into force at the date of the publication, whilst the
norms concerning the salaries were applicable from the 1st of September 1946,
given that it was abrogated in 1949, de facto, through the Decree no. 29/194925, and
de jure through the Decree no. 418/194926, as an effect of the new political regime of
the Romanian State, after the entering into force of the 1948 Constitution27 and in
the context of the adoption of the first Labour Code. Otherwise, the issuer of the
act, in the text of its single article, mentions the context which imposes the
abrogation of an impressive number of normative acts: ”An important number of
laws and decrees being abrogated through the successive transformation of the
structure of the state and of our law, before the 13th of April 1948, and other were
abolished in accordance with the art. 105 of the Constitution of the Romania’s
People Republic, a precise identification of all of the de facto abrogation is
imposed”.
25 Decree no. 29/1949 for regulating the rights and duties of the administrative employees and of
the management technical staff of the State owned institutions and state enterprises and any type of
cooperatives, was published in the Official Journal of Romania no. 29/29 ianuarie 1949.
26 Decree no. 418/1949 for declaring as abrogated of some laws and decrees, was published in
the Official Journal of Romania no.712/16 of November 1949, and the point 189 of the Decree is
mentioned ”The law no. 746 of 22 September 1946 ammended at: 12 March 1947 (Law no. 31); 30 Ma y
1947 (Law no. 164); 22 August 1947 (Decision no. 22)”.
27 The Constitution of Romania’s People Republic was published in the Official Journal of
Romania no. 87bis/13 April 1948. The official text is available at http://www.cdep.ro/pls/le gis/
legis_pck.htp_act_text?idt=1574
The civil service at Romania’s Centennial 37
IV. Communist Period: Civil Servant = Working Class Hero
Although the 1948 Constitution uses the civil servant notion in few of its
articles (art.8, art.24, art.34 and art.95), respectively the notion of public office, in
the text of art. 44 (11), the civil servants no longer benefited from a statute of their
own, being, like the other working people, under the auspices of the regulations of
the Labour Law. Hence, the Labour Code28 of 1950 stipulates in the text of its art. 1
which are the regulated aspects, while the text of art. 2, expressly mentioning the
civil servants, establishes the field of application, “on one hand, of the employees –
workers and civil servants – and on the other hand to the state bodies and
institutions, enterprises and economic organisations and those with a public
character, as well as to the natural and legal persons working in the private sector,
which use paid work”. It needs, nevertheless, to be emphasized that, according to
art. 129 of the Code, this is not applied to the military personnel. Also, in
accordance with the provisions of art. 25, there is the possibility to regulate special
statutes especially with regard to the disciplinary regime, but this possibility was
not fructified for the public servants.
The 1952 Constitution29 defines the Romanian state in its very preamble and in
the text of its first article as a “state of the working class from cities and villages”, in
this sense, the public servants having the same statute as the working class,
without any additional rights or warrants, which are called to contribute to the
fulfilment of the ideals of the new state/political regime. We hereby underline the
fact that the phrase “civil servant” is no longer used, only “state servant”,
respectively “servant”.
The 1965 Constitution30 takes the same wording with regard to the civil
servants, consecrating their qualification as “working class”. We stated in another
study31 the fact that, according to the provisions of the art. 58-61, corroborated with
the provisions of art. 22 included in the Labour Code of 197232, was prefigurated
the apparition of some statutes which should have been approved by a law, which
should have provided “the specific rules concerning employment relationships,
rights and duties of the staff, criteria on the integration and promotion, discipline
28 Law no.3/1950 on the Labour Code was published in the Official Journal of Romania no. 50/8
June 1950.
29 The 1952 Constitution of Romanian Peoples’s Republic was published in the Official Journal of
Romania no. 1/27 of September 1952. The official text is available at http://www.cdep.ro/pls/
legis/legis_pck.htp_act_text?idt=1454
30 The Constitution of the Socialist Republic of Romania of 1965 was republished in the Official
Journal of Romania no. 65/29 of October 1986. The official text is available at http://www.cdep.ro/
pls/legis/legis_pck.htp_act_text?idt=37735
31 Please refer to Irina Alexe, Înalii funcionari publici, Editura Universul Juridic, Bucureşti,
2014.p.18 -19.
32 Law no.10/1972 on the Labour Code was published in the Official Journal of Romania
no. 140/1 December 1972.
38 IRINA ALEXE
in service and responsibilities, working hours and other specific rules in the
respective field”, but that these intentions were not subsequently materialised.
We hence consider that this period was marked by the intention of erasing the
identity of civil servants and to standardize the categories of staff, indifferently of
their professional preparation or of its role in a state. It is not surprising that the
Romanian socialist/communist state chose to proceed in this manner with several
of its elite professional categories, on which the Interwar state based its national
belonging and continuity, or which contributed, in a decisive manner, at the
realisation of the Greater Union and in the subsequent consolidation of the state. In
this case, are of notoriety not only the public purges but also the physical purges,
through the oppressive instruments of that period, though which a vast majority of
the intellectuals, and implicitly of the civil servants was dismissed or demoted
from the public offices previously withheld.
V. Post-comunist period: towards a new statutory period
After 1989, when Romania chose to be a state based on justice and integrity, as
a decision was made to integrate the European Union, Romania realized the
necessary reforms in order to fulfil these major national goals and regulated,
through some important laws, the rules regarding the civil servants. Whereas the
specific doctrine largely debated these subjects, we will succinctly review some of
the regulations which preceded the new Statute of civil servants, adopted in 1999.
In 1999, before the Constitution entered into force, the Government of
Romania adopted a first normative act applicable in this field, a Government
Decision33 through which, in four articles, were regulated some measures for
ensuring the social prestige of civil servants. Hence, were established, in a succinct
manner, the persons which bear the quality of civil servant, the obligations and
interdictions applicable to this category of people, as well as the disciplinary
regime and its consequences.
The 1991 Constitution34 establishes for the first time after the communist
period the importance of the statute of public servants in the new Romanian state,
33 Government Decision no. 661/1991 on some measures for ensuring the social prestige of civil
servants was published in the Official Journal of Romania no. 205/8 of October 1991. Although
obsolete after the publication of the 1991 Constitution and of the new regulations in the matter, the
decision was expressly abrogated solely 13 years later, through Government Decision no. 233/2004 on
the abrogation of some normative acts, published in the Official Journal of Romania no.191/04 of
March 2004.
34 The 1991 Constitution of Romania was published in the Official Journal of Romania no. 233/21
of November 1991 and republished, after the revision of 2003 in the Official Journal of Romania
no.776/31 of October 2003. The official text is available at http://www.cdep.ro/pls/dic/
site.page?id=339
The civil service at Romania’s Centennial 39
by introducing the statute of the civil servants among the fields regulated by the
organic law, in the text of art. 72 (3) i).
Only eight years later, in 1999, was adopted, through the assumption of the
responsibility of the Government in front of the Parliament, the Statute of public
servants35 which, although amended and supplemented several times, is still
applicable today.
The doctrine36 showed since that very moment, and subsequently, through the
years, which were the underlying reasoning, desire and the motivation through
which the Romanian legislator chose to introduce in the legislation certain legal
institutions which could confer to the civil servant a new statute adapted to the
role drew by the state for it. In its Administrative Law course37, by quoting a rich
Administrative Law and Labour Law doctrines, professor Verginia Vedinaş
analyses both general aspects, as well as historical and evolutionary particularities
of the public office and of civil servants, being included in the category of the
Senior Civil Servants38. The analysis made by the distinguished professor aims at
the aspects concerning the legal nature of the civil servant notion, in comparison to
35 Law no.188/1999 on the Statute of civil servants was published in the Official Journal of
Romania no.600/8 of December 1999, being subsequently modified and amended, republished two
times and furtherly amended and supplemented several times. After this point, when we make
reference to the Law no.188/1999, without other supplementary details, we make reference to the text
of the Law no.188/1999 on the Statute of civil servants, republished (2), subsequently amended and
supplemented, up to 25 October 2018.
36 One of the most complete analysis in this field was realised by professor Verginia Vedinaş. For
further details, please refer to Verginia Vedinaş, Statutul funcionarului public, Editura Nemira,
Bucharest, 1998; Verginia Vedinaş, Statutul Funcionarilor publici (Legea nr.188/1999) Comentarii,
legislaie, doctrin şi jurispruden, Ediia a II-a, reviewed and amended, Editura Universul Juridic,
Bucharest, 2016.
37 Verginia Vedinaş, Drept administrativ, ediia a X-a, reviewed and amended, Editura Universul
Juridic, Bucharest, 2017, p.271-321.
38 We dedicated several papers to this category of public servants and of the permanent mutation
to which it was subjected. In this sense, please refer to Irina Alexe, Înalii funcionari publici, op. cit.
Irina Alexe, Reforma reformei. Studiu de caz: Ordonana de Urgen a Guvernului nr. 82 din 2013 in the
volume Reforma statului: instituii, proceduri, resurse ale administraiei publice, coord. Emil Blan, Cristi
Iftene, Marius Vcrelu, Ed. Wolters Kluwer, 2016, p. 121-133. Irina Alexe, Categoria înalilor funcionari
publici. Tendine actuale in the volume Administraia public între misiuni şi constrângeri bugetare:
dimensiuni juridice şi manageriale, coord. Emil Blan, Gabriela Varia, Cristi Iftene, Ed. Wolters Kluwer,
2014, p. 136-144. Irina Alexe, Principiul neutralitii politice în privina numirii înalilor funcionari publici,
in the volume Administraia şi puterea politic. Tendine şi evoluii în spaiul public european, coord. Emil
Blan, Cristi Iftene, Marius Vcrelu, Comunicare.ro, 2013, p.122-137. Irina Alexe, Consideraii
referitoare la Decizia nr. 55/2014 a Curii Constituionale a României şi la statutul juridic al unor înali
funcionari publici, Curierul Judiciar, nr. 3/2014, p. 159-161. Irina Alexe, Aspecte privind mobilitatea
înalilor funcionari publici reflectate de jurisprudena instanelor din România, Revista de drept public, no.
1/2012, p. 90-102. Irina Alexe, Mobilitatea înalilor funcionari publici – modalitate de modificare sau de
încetare a raporturilor de serviciu?, Revista de drept public, no. 4/2009, p. 43-51.
40 IRINA ALEXE
the concept of dignitary and contractual staff, the controversies of the doctrine on
the legal status of the public servant, the constitutional basis of the concepts of
public office and civil servant, their definitions, the classifications of the civil
servants, the legal regime in the nomination of the public office, the rights and
duties of the public servants, the responsibility, as well as their recruitment and
their professional evolution, up to the termination of service.
The Law no, 199/1999 defines from the very text of its art. 1 the scope (regulates
the general regime of the legal reports between the public servants and the state or
the local public administration, called term of service), as well as the goal of the
regulation which is to ensure, in accordance with the legal provisions, a stable,
professional, transparent, efficient and impartial civil service in the interest of the
citizens, as well as in the service of public authorities and institutions from the
national and local public administration. Also, in the text of art. 2 are defined and
explained the notions of civil service, civil servants and activities which imply the
exercise of the prerogatives of public power, the public offices being provided for in
the annex of the law. The text of art. 5 of the law establishes the categories of civil
servants which are eligible to special statutes, which regulate, in addition to the
general statute, rights, duties, incompatibilities and specific functions, as well as, in
some situations, aspects regarding the career progression, while the next article
stipulates which are the staff categories for which the statute of civil servants is not
applicable, but, on a given case, the Labour legislation or their own statutes.
We consider that this statute is one of the most complex normative acts in this
field, establishing rules for the access to the public office based on meritocracy, as
well as a career progression made on the same criteria, in order to ensure a
professional training at the highest standards, the establishment of modern
regulation, control and sanctions mechanisms, with an insurance of the existent
warrants in a state based on the rule of law, as well as the regulation of the rights,
obligations and incompatibilities applicable to the civil servants. This was
subsequently detailed by other acts, which are not making the subject of this study.
We consider necessary to mention the fact that, in the contemporary Romanian
legislation, there are multiple normative acts regulating the special statues of the
diverse categories of civil servants39, as well as other normative acts applicable to
39 For example, the Law no.360/2002, on the statute of police workers, published in the Official
Journal of Romania 440/24 of June 2002, subsequently supplemented and amended, the police worker
is defined as a civil servant with a special statute. Also, as an example, we underline that special
statutes have been adopted for the parliamentarian civil servant, through the Law no.7/2006,
republished in the Official Journal of Romania no.345/25 of May 2009, subsequently amended and
supplemented, for the diplomatic and consular staff, through the Law no.269/2003, published in the
Official Journal of Romania no.441/23 of June 2003, subsequently amended and supplemented, for
customs staff, through the Government Emergency Ordinance no.10/2004, published in the Official
Journal fo Romania no.256/23 of March 2004, subsequently amended and supplemented, or for civil
servants of the public servants of the National Administration of the Penitentiaries, through the Law
no.293/2004, republished in the Official Journal of Romania no.264/10 of April 2014.
The civil service at Romania’s Centennial 41
the staff categories of the central and local public administration which are not
subjected to the statute of civil servants. We also mention the fact that, according to
art. 117 of the Law no. 188/1999, which „is supplemented by the provisions of the
Labour legislation, as well as with the common Civil, Administrative and Penal, as
the case, to the extent to which they don’t contravene to the specific legislation of
the civil service”. After the apparition of the Statute, in 1999, the act was subjected
to a significant number of amendments and supplementations, and other
complementary normative acts were adopted, which are helpful to make a
distinction between the notion of civil servant and the other notions which were
previously mentioned.
Among these normative acts, the most discussed and disputed in the doctrine
is the Labour Code40, which regulates the employment relationships and
established, in the text of its art. 2, the field of application for the diverse
employees’ categories.
Nevertheless, by comparing the texts of the Law no. 161/200341, a clear
distinction can be made between the public dignities in the central administration,
respectively in the local administration, dignitaries, locally-elected dignitaries, civil
servants, other persons which fulfil offices of public authority and employees.
Being preoccupied by the evolution of the notion of civil servant in the internal
law, and to the extent of its compatibility with the definition of the civil servant in
the case-law of the Court of Justice of the European Union and of the European
Court of Human Rights42, we will not furtherly develop these aspects in this study.
We need to underline, nevertheless, that in the studies concerning the civil servants
we do both use the extended notion of employee or worker, as it is defined lato
sensu in the European Law or in the internal Labour law, which makes reference to
the existence of an employment contract and of the existence of an employment
relationship. We make reference to the stricto sensu acceptation of the civil servant
notion, which is defined by the law and subjected to the administrative law, which
is based on the administrative nomination in a public office, this case being, as
previously showed, an employment relationship.
It is not without relevance to mention, nevertheless, that there are some
regulations, for example those in the penal field, in which the civil servant notions
in the sense of the Penal law is much vaster than the one provided for by the
statute.
40 Law no.53/2003 on the Labour code, republished in the Official Journal of Romania no.345/18
of May 2011, subsequently amended and supplemented.
41 Law no. 161/2003 on some measures for ensuring transparency in exercising public dignities
and in the business environment, the prevention or sanction of corruption, was published in the
Official Journal of Romania no.279/21 of April 2003, subsequently amended and supplemented.
42 For further details, please refer to Irina Alexe, Noiunile de funcie public şi funcionar public în
jurisprudena Curii de justiie a Uniunii Europene. Legtura cu jurisprudena Curii Europene a Drepturilor
Omului, Pandectele Române no.2/2013, pp.66-74; also, please refer to Irina Alexe, Înalii funcionari
publici, op. cit., p.38-48.
42 IRINA ALEXE
Even before Romania’s accession to the European Union, it was widely known
that the regulation of the field of the civil service was an exclusive competence of
the Member State, but the Romanian state chose to give as a rationale for the
adoption of the Statute, as well as for some of the successive amendments of the
European Union, by the necessity to harmonise the internal and European Law. By
analysing a recent study43, we found that, more than ten years after Romania’s
accession to the European Union, few civil servants are making a clear distinction
between the Staff regulations for European officials and the regime applicable to
other servants of the Union, regulated by Regulations44, being a legislative act of
the European Union, respectively the internal Statute of civil servants, regulated
through the national law45.
Going back to the text of the Law no.188/1999 and the purpose of the adoption
of such a Statute, this is to say to ensure the professionalisation and the stability of
the administration, we found out that, although acclaimed as a modern and
reforming law, the scope was not fulfilled. Despite the fact that the law contains
not only the mechanisms, but also the warrants in order to fulfil the purpose of the
law, most of the time the application of the respective norms was faulty.
Also, it should be mentioned that the law was subjected to multiple
amendments and supplementations, sometimes several times a year, and that the
political decision-makers which wanted to “solve” some personal issues with some
people which were uncomfortable for their positions, were introducing, apart from
the regulations established by the Statute, numerous exceptions which eventually
lead, in our opinion, to a discreditation of the whole measure. Putting an emphasis
on the category of the Senior Officials, perhaps the most affected categories by the
myriad of legislative amendments, we dedicated relatively recently separate
studies dedicated to the way in which the reform of the public office was realised,
in Romania, ten years after the accession to the European Union46, respectively to
the new amendments recently proposed by the Law on the Administrative Code of
Romania, which proposes an abrogation of the Statute of civil servants47, so these
aspects will not be furtherly detailed, waiting, at the time of the writing, for the
43 Irina Alexe, Aplicarea procedurii trimiterii preliminare în cauze privind funcionarii publici,
Pandectele Române no.3/2018, p. 45-56.
44 Regulation No 31 (EEC), 11 (EAEC) of 1962 (OJ 45 of 14 June 1962), reformed through the
Regulation (EC, Euratom) no. 723/2004 (OJ L124 of 27 April 2004) and through the Regulation (EU,
Euratom) no.1023/2013 (OJ L287 of 29 October 2013) laying down the Staff Regulations of Officials
and the Conditions of Employment of Other Servants of the European Union.
45 Law no.188/1999 on the Statute of civil servants
46 Irina Alexe, Reforma funciei publice dup 10 ani de la aderarea României la Uniunea European.
Cazul înalilor funcionari publici, Revista de drept public no.2/2017, p.12 – 22.
47 Irina Alexe, Modificri eseniale ale categoriei înalilor funcionari publici, incluse în proiectul Codului
administrativ, Revista de drept public no.2/2018, p.116 – 128.
The civil service at Romania’s Centennial 43
decision of the Constitutional Court of Romania which was seized with regard to
the text of the law, and which postponed the required debate in order to rule on
the matter48.
VI. Short conclusions
There is no doubt to the fact that a modern state needs highly trained civil
servants in order to sustain a professional administration in the service of the
citizens. The Statute of civil servants followed, in the century which followed the
Great Union, a complicated path, closely linked to the evolution of the Romanian
state. Despite the fact that the civil servant notion had a different content across the
time, the role and the fundamental missions of the civil service in the state
remained, for their most, the same.
In the Administrative Law, similarly to other branches of the law, a strong
trend of Europeanisation can be observed, which implies a Europeanisation of the
public office49. We did not manage to quantify the extent to which the European
Law, through the specificities of its institutions, is applicable to the Romanian civil
servants, but we are confident that these principles which lead to a better
governance, to a more transparent decision-making and to a professionalisation
not only of the civil servants, but also of the administration, to be also correctly
applied in Romania.
It would be desirable for the civil service system to be realised, as provided for
by the Statute, based on meritocratic criteria for professional advancement, but this
failed to materialise in practice, because of the introduction of application of some
exceptions of the aforementioned rules.
Also, a tendency for taking best practices from other states can be observed in
the case of the civil servants and of a part of the administration, respectively of the
European servants, but not all of these solutions can be applied every time to the
specificities of the Romanian administrative system. Their application, at least in
the case of the Senior Officials, proved to be a failure, which lead to the
restructuring of the category but also to a re-evaluation of the subsequent
conditions for accessing a public office of the mechanism.
As mentioned in the previous section, the competent authorities of the
Romanian state chose to include the norms concerning the Statute of civil servants
48 For further details, please refer to point B of the press release of the Constitutional Court of
Romania, released on the 25th of October, available at https://www.ccr.ro/noutati/COMUNICAT-
DE-PRES-338
49 For a relevant analysis of this field please refer to: René Seerden (ed.), Comparative
Administrative Law. Administrative Law of the European Union, Its Member States and the United States,
Fourth Edition, Editura Intersentia, 2018, p.417-438; Ioan Alexandru, De la dreptul administrativ naional
la dreptul administrativ global, Editura Academiei Române, 2017, p.188-216.
44 IRINA ALEXE
in the draft of the Administrative Code. Without trying to criticise the
Administrative Code adopted by the Parliament, we would like to underline that,
in our opinion, we do not consider that normative act in its entirety as a substantial
progress for the regulation of the Statute of civil servants and we specifically do
not appreciate the chosen solutions of the regulation. Maybe this is the correct
solution in order to simplify and alleviate the legislation, but the way in which this
transformation was realised raise several questions for which we wait for the
ruling of the Constitution Court, hoping that at least some of the presented aspects
will be clarified, and furtherly revised. We would like to specifically underline a
particular aspect, linked to the fact that the normative act puts under the
management of the same authority both the civil servants and other staff categories
of the public administration.
Although very desired and maybe necessary, in our opinion, the
Administrative Code is not a genuine act which could encompass and to integrate
the notions and the institutions, but rather a legislative codex, a collection of laws
regulating specific fields, frequently with contradictory or incomplete norms
which have been brought together under the same title.
In order to have the desired effect, we consider that it would have been
preferable for such a normative act to be elaborated only after the realisation of the
most needed constitutional and administrative and territorial reorganisation.
We appreciate that, in celebrating the centennial since the 1st of December
1918, further work is needed for the modernisation of the state, in order to respond
to its own development needs and to those of the European society, from which is
taking part.