5

Abstract
The article refers to the problem of incom-

patibilities and conflicts of interests of public of-
ficials in the Romanian society and its severe 
consequences upon the fulfillment of the condi-
tions of the European Commission Verification 
and Cooperation Mechanism’s benchmarks by 
Romania. The present study proposes a critical 
analysis of recent legislative changes of the rules 
of conduct for MPs in Romania, relatively to the 
regime of incompatibilities and conflicts of inter-
ests, emphasizing the manner in which the Par-
liament constantly tries to limit the prerogatives 
of the National Integrity Agency (NIA). Special at-
tention is paid to the analysis of incompatibilities 
applicable to the MPs who are simultaneously 
Government members. The study follows several 
steps: an introduction, a critical analysis of the 
new legislation, focusing on the new rules of con-
duct for MPs, an analysis of the most important
case studies and conclusions. The introduction 
describes the problem of incompatibilities and 
conflicts of interest of MPs and members of 
Government reflected in the recent CVM Report 
and the position of the National Integrity Agency. 
The analysis of the legislation presents a critical 
evaluation of the new rules of conduct for MPs, 
adopted in 2013 by the Romanian Parliament; 
then, analyzing the most important and recent 
case studies, general patterns in the field of 
procedures of incompatibilities and conflicts of 
interests emerge. Conclusions propose legisla-
tive solutions in terms of raising the standards of 
public integrity.

Keywords: incompatibility, conflict of inter-
ests, public integrity, National Integrity Agency, 
Romania.

PUBLIC INTEGRITY
AND NEW RULES OF CONDUCT FOR 
ROMANIAN MPs:
A ROMANIAN CASE STUDY

Cynthia Carmen CURT

Cynthia Carmen CURT
Assistant Professor, PhD, Political Sciences Department, 
Faculty of Political, Administrative and Communication 
Sciences, Babeș-Bolyai University, Cluj-Napoca, Romania
President of the National Council of Integrity, Bucharest, 
Romania
Tel.: 004-0264-431.505, extension 6226
E-mail: curt@fspac.ro

Transylvanian Review
of Administrative Sciences,

Special Issue, pp. 5-25



6

1. Introduction
The effectiveness of anti-corruption reforms is directly related to the political 

will and political commitment to democratic reforms, in terms of good governance 
(Johnston and Doig, 1999; Grindle, 2007). The development of integrity standards in 
public life is one of the key instruments in ensuring trust in public institutions and 
good governance (Danileţ, 2009; OECD, 2011). According to Lord Nolan’s Seven 
Principles of Public Life (Committee on Standards in Public Life, 2005), ‘holders of 
public office should not place themselves under any financial or other obligation to 
outside individuals or organizations that might influence them in the performance 
of their official duties’. One of the main steps in maintaining integrity in public life 
is managing conflicts of interest and incompatibilities; further on, establishing the 
asset and interests declarations for public officials is an important mechanism to 
prevent conflicts of interest (OECD, 2011). According to some authors (Nicholls et 
al., 2011, p. 404) conflicts of interest can be an indicator of corruption or lack of integ-
rity. In recent years, the Romanian National Integrity Agency (NIA) imposed itself 
as a model of good practice in strengthening public integrity standards and was 
well appreciated in European Commission’s Cooperation and Verification Mecha-
nism (CVM) Reports. In the last CVM Report (January 2013) worries were expressed 
related to the fact that ‘NIA’s reports against ministries and senior officials did not 
lead to their resignations’ and the CVM Report mentions it is important that ‘the 
Parliament should build on new rules to adopt clear and objective procedures to 
suspend MPs subject to negative integrity rulings or corruption convictions’. Also, 
the CVM Report emphasizes that it is important ‘to clarify that NIA remains the sole 
authority tasked with the verification of potential incompatibilities of elected and 
appointed officials’. This article analyses the attempts of MPs to politically limit the 
attributions of the National Integrity Agency by establishing new rules of procedure 
regulating incompatibilities and conflicts of interest. In the same way, the study 
analyses the most important cases of MPs and members of Government in situations 
of incompatibilities and conflicts of interest, concluding upon the quality of the new 
MPs’ rules of conduct, the Parliament and Government’s response to the respect of 
the judicial decisions and the rules of law. In this respect, the study proposes de lege 
ferenda solutions.

The new provisions of the Law regarding the Statute of Deputies and Senators 
constituted a recent and controversial legislative procedure. New texts were adopted 
first on January 22, 2013 by the two Chambers of Parliament. However, the legislative 
procedure was a tedious and sinuous enactment: the new texts have represented, con-
secutively, the request for review made by the President, respectively the objections 
of unconstitutionality to the Constitutional Court. During these procedures the Parlia-
ment called into question the very concept of dissuasiveness of the sanctions deriving 
from the incompatibility regime for MPs and tried to introduce new texts supposed to 
make inapplicable certain procedures before the National Integrity Agency and, also, 
tried to restrict NIA’s special competencies related to MPs’ incompatibilities. After six 



7

months of parliamentary procedure, after two Presidential requirements of revising 
the law and three Constitutional Court’s decisions amending the texts adopted by the 
Parliament, the modification of Law no. 96/2006 is definitive, being re-published in 
the Official Journal of Romania on July 24, 2013.

2. Analysis of legislation
2.1. Incompatibilities regarding the parliamentary mandate

Incompatibilities are constitutional mechanisms to protect the independence of the 
parliamentary mandate and prohibit the overlapping of the MP mandate with an-
other public position (Constantinescu et al., 2004, p. 29), ensuring the protection of the 
Parliament against the influence of the Government or any private interest (Constan-
tinescu and Muraru, 1999, p. 91). The MP is obliged to opt between the parliamentary 
mandate and the public or private position, rendered incompatible with the mandate 
(Deleanu, 2006, p. 598).

The institution of incompatibility is the public interest’s response to the need of 
preventing conflict of interests occurring during the exercise of public offices and 
functions, in compliance with the principles of neutrality, integrity, decisional trans-
parency and public interest supremacy (a rt. 71 of Law no. 161/2003; Decision of the 
Constitutional Court no. 876 of 28 June 2011).

The legislative nature of the incompatibilities of the parliamentary mandate is syn-
thetically presented by the Constitutional Court in Decision no. 972 of 21 November 
2012, which emphasizes that the ‘incompatibility’ has a ‘relative nature as it circum-
scribes only to certain public offices or to the exercise of certain activities – articles 
81 and 82 of Law no. 161/2003, and has an imperative nature due to the fact that it is 
‘public’ and is therefore mandatory for all public authorities’.

General incompatibility, provided by the Constitution (art. 71), implies that ‘no 
one can be simultaneously a deputy and a senator’, being instituted a type of incom-
patibility that entails compliance with the principles of bicameralism (Deleanu, 2006, 
p. 598; art. 14 of Law no. 96/2006).

Other types of incompatibilities with elected offices refer to the incompatibility 
of exercising the mandate of MP in Romania and that of member of the European 
Parliament (art. 16, paragraph 2 of Law no. 96/2006) or with the office of President of 
Romania (art. 84, paragraph 1, Constitution of Romania). Moreover, the Senators and 
Deputies’ Statute institutes the incompatibility of the parliamentary mandate with 
non-elected offices, more exactly ‘with the positions and the activities of the persons 
who, according to their statute, cannot be members of political parties’ (art. 16 para-
graph 1 of Law no. 96/2006). The deputy or the senator mandate is incompatible with 
any public office granted by a foreign state, except those offices provided by the law 
through the agreements and conventions to which Romania is a party (art. 16 of Law 
no. 96/2006).



8

2.2.1. Members of Parliament who simultaneously function
          as members of the Government

Constitutional incompatibilities are the general incompatibilities of the parliamen-
tary mandate that include the incompatibility between the parliamentary office and 
any other public office of authority, apart from that of member of the Government: 
‘the quality of Deputy and Senator is incompatible with any other public office of 
authority, except that of member of the Government’. As an exception to the general 
regime of incompatibilities, art. 71 of the Constitution specifies that ‘the members of 
Parliament can also be members of the Government’. Criticised for being at odds with 
the principle of separation of powers (Giquel, 1995, p. 678), it is nonetheless a feature 
that characterises the parliamentary political regimes (Drăganu, 2000, p. 272; Alder, 
2011, p. 325).

2.2.2. European Court of Human Rights jurisprudence

The European Court of Human Rights (ECHR) has established that the imposi-
tion of incompatibility for elective public office is not contrary to the Convention for 
the Protection of Human Rights and Fundamental Freedoms (Case Lykourezos vs. 
Greece, 2006; Case Hirst vs. the United Kingdom of Great Britain, 2005). In the case of 
Lykourezos vs. Greece (2006, §21-§37), the Court classifies the incompatibilities of the 
parliamentary office starting from standards regarding compliance with the principle 
of separation of powers, the principle of the parliamentary mandate autonomy, the 
principles concerning prevention of the conflicts of interest, and the principle that a 
MP must commit himself or herself to the duty of meeting the terms of his or her par-
liamentary mandate, exercised in the general interest of the nation.

Characteristic of political regimes marked by a rigid separation of the executive 
from the legislative, in the presidential political regimes, and even in semi-presiden-
tial ones, the rule stipulates the incompatibility of the office of MP with any executive 
authority function (president of the state, Prime Minister or minister) (art. 23, Consti-
tution of France; art. 50, Constitution of Belgium; art. 57, Constitution of Netherlands; 
art. 62, Constitution of Norway; art. 6, chapter IV, Constitution of Sweden). Despite 
having been criticized for the fact that it might represent an impediment to efficient 
collaboration between the executive and the legislative (Muraru and Tănăsescu, 2006, 
pp. 233-234), this system rests on arguments that refer to warranting the separation 
of the legislative from the executive, since members of the Government could be MPs 
too, this induces confusion between the two powers, namely the idea of subordina-
tion. France adopted it through the constitutional reform of 1958 with the firm speci-
fication that the members of the Government cannot be simultaneously ‘controllers 
and controlled’ (Giquel, 1995, pp. 628-629). It was stipulated that the members of the 
Government who are at the same time MPs belong simultaneously both to the legisla-
tive and the executive; in this respect, they are entitled to control and to oppose their 
parliamentary will to the Prime Minister’s projects, which would be an act of interfer-
ence of the legislative in the executive. Otherwise, they would sway Parliament’s vote 



9

in favor of the Government’s projects (Tofan, 2008, p. 175). From another perspective 
(Muraru and Tănăsescu, 2006, pp. 233-234), the concentration of power into the hands 
of the executive would render parliamentary control inefficient and turn it into ‘non-
control’. Similar provisions are found in the Constitutions of Finland (art. 63), Austria 
(art. 56), Holland (art. 57), and Portugal (art. 154).

Instead, the parliamentary political regimes characterized by a flexible separation 
of powers and a functional cooperation between the executive and the legislative, rest 
on the compatibility between the office of MP and that of the member of the Govern-
ment, following the British model, where the ministers are all members of the House 
of Commons, or (in fewer cases) of the House of Lords (Tofan, 2008, p. 175). Countries 
such as Germany, Spain, Italy, Poland, and Romania have adopted the British model 
and apply similar solutions (Case Lykourezos vs. Greece, 2006).

From this study’s perspective, integrity standards seem to be different for a MP 
who is at the same time a member of the Government. The distinct constitutional 
nature of the two mandates – the representative, parliamentary mandate, and the ap-
pointed, ministerial mandate – is translated into different regimes of incompatibili-
ties. In consequence we can witness situations when the minister declared incompat-
ible resigns or is dismissed from the Government, but continues exercising the parlia-
mentary mandate. The main cause of this juridical and political paradox resides in the 
impossibility of coordinating the constitutional provisions at the infraconstitutional 
level and also in the interpretability and incoherence of the Deputies and Senators’ 
Statute, respectively of the Regulations regarding the organization and functioning of 
the two Chambers of Parliament. MPs’ Statute does not provide a unitary system of 
regulations, consistent with the substance of the incompatibilities of the parliamenta-
ry mandate, but, quite the reverse, it generates a procedure that runs in parallel to the 
other organic regulations that refer to the substance of the field of incompatibilities1.

The legal infraconstitutional incompatibilities are those incompatibilities that are 
regulated by the organic laws.

2.2.3. The Deputies and Senators’ Statute regulates incompatibilities in economy2

The cases of incompatibility in economy are stipulated by the Deputies and Sena-
tors’ Statute; the Statute mentions that other incompatibilities can be regulated by or-

1 The law of the enforcement of incompatibilities and conflicts of interest is regulated by arts. 
20 – 26 of Law no. 176/2010 on the integrity in the performance of public offices, for amend-
ing and supplementing Law no. 144/2007 on the establishment, organization and function-
ing of the National Integrity Agency, as well as for amending and supplementing other regu-
lations, Book I, Title IV, chap. III of Law no. 161/2003 on measures to ensure transparency in 
the exercise of public offices, public positions in the segment of business as well, corruption 
prevention and sanctioning.

2 ‘a) President, Vice President, Director, manager, administrator, board member or auditor 
of companies, including banks or other credit institutions, insurance companies, and finan-
cial and public institutions, b) President or secretary of general meetings of shareholders or



10

ganic law. The same incompatibilities are provided also by art. 82 of Law no. 161/2003, 
except of an additional reference made to the ‘incompatibility of the parliamentary 
mandate with the offices of president, vice-president, secretary, and financial officer 
of trade union federation and confederation’ (art. 82.2.h).

The Deputies and Senators’ Statute also includes references to interdictions of ad-
vertising, showing in this respect that the use of a person’s name together with the 
quality of deputy or senator is prohibited in any activity that has commercial, finan-
cial, industrial, or any similarly lucrative purposes (art. 16, Law no. 96/2006).

Even though incompatibilities refer principally to public authority offices, they are 
nonetheless compatible with the parliamentary mandate in the case of private posi-
tions. Law no. 161/2003, art. 82^1 stipulates that freelancing in the legal profession 
entails certain limitations3. Such cases of incompatibly seek to avoid the situations in 
which the exercise of the parliamentary mandate, could be in conflict with the elected 
member’s professional or private interests (Ardant, 1996, p. 513). The office of Deputy 
and Senator is consistent with activities performed in didactic, literary and artistic 
domains, or in scientific research (art. 82.3, Law no. 161/2003).

The rules that refer to the incompatibilities of the parliamentary mandate also ap-
pear stipulated in the Rules of Organization and Functioning of the two Chambers of 

 members in companies referred to in point a), c) state representative of the general meetings 
of the companies referred to in point a), d) manager or member of the board of autonomous 
administrations, companies and national corporations, e) individual trader, f) member of a 
group of economic interest as defined by law’(art. 15, Deputies and Senators’ Statute);

3 ‘(1) The deputy or senator who, while exercising the parliamentary mandate, intends to 
exercise the profession of lawyer cannot plead in cases which are judged by judges or courts 
nor can they offer legal aid in offices subordinated to these courts.

(2) The deputy or senator in the situation referred to in paragraph (1) cannot provide legal 
advice to accused or defendants but may assist the court in criminal cases: a) corruption 
offenses, offenses assimilated to corruption offenses, offenses directly related to corruption 
offenses and offenses against the European Communities’ financial interests under Law no. 
78/2000 on preventing, discovering and sanctioning corruption, as amended and supple-
mented, b) offenses under Law no. 143/2000 on combating illicit drug trafficking and con-
sumption, as amended and supplemented, c) offenses of trafficking in persons and offenses 
related to human trafficking, under Law no. 678/2001 on preventing and combating traf-
ficking in persons, as amended and supplemented, d) money laundering offense provided 
for in Law no. 656/2002 on preventing and sanctioning money laundering, as amended, e) 
offenses against state security, provided in art. 155-173 of the Penal Code, f) that prevents 
justice offenses provided for in art. 259-272 of the Criminal Code, g) crimes against peace 
and humanity, set out in articles 356-361 of the Criminal Code.

(3) The deputy or senator in the situation referred to in paragraph (1) cannot advocate civil 
or commercial cases against state authorities or public institutions, national companies or 
the national societies in which they are parties. Also, they cannot plead the Romanian state 
lawsuits in international courts.

(4) The provisions of paragraphs (1) – (3) do not apply in cases where the lawyer is party to 
the proceedings or assisting or representing the spouse or relatives up to the fourth degree.’



11

Parliament4. Similar provisions of ‘economic incompatibilities’ are present in Austria, 
France, Greece, Italy, and Portugal (Venice Commission, 2012, pp. 19-21) also, in Po-
land (art. 107-108, Constitution), and Latvia (art. 32, Constitution).

Conform to the infraconstitutional legislation, the legal specialized competence of 
making decisions with respect to the incompatibility conditions that refer to the per-
sons who fulfill public functions and hold public offices is rightfully specific to the 
National Integrity Agency (NIA), reason for which this institution was created (art. 8, 
Law no. 176/2010)5.

2.2. The conflicts of interests

Conflicts of interests are not regulated at constitutional level, but through infra-
constitutional rules (Decision of the Constitutional Court no. 81/2013), although, the 
explanation of stipulating incompatibilities at constitutional level resides in the public 
interest’s need to prevent conflicts of interests in performing public functions and of-
fices.

The conflict of interests in the administrative sphere, referring to MPs as well, is 
established by organic law, respectively by Law no. 161/2003 concerning transparency 
in public offices. ‘The conflict of interests refers to the situation in which the person 
who performs a public office or function has a private patrimonial interest, which 
could influence the carrying out in an objective way of his or her duties under the 
Constitution or of any other normative activities’ (art. 70). The attempt to regulate the 
conflict of interest as a disciplinary violation within the Deputies and Senators’ Statute 
has been pronounced non-constitutional, due to the nature of the penalty. The Consti-
tutional Court interpreted the exclusion from the Chamber for a period not exceeding 
six months, as a sanction for conflict of interests, being in discordance with the nature 
of the parliamentary mandate, which must be exercised continuously: ‘participation 
in the sessions (…) represents a duty specific to the parliamentary mandate’.

In terms of the criminal law, the conflict of interests was regulated by Law no. 
278/2006.6 As a result of the examinations carried out by NIA, a number of 22 Mem-

4 The Senate Regulation, published in the Official Journal of Romania no. 948 of 25 October 
2005, regulates in articles 177 and 178: ‘Conflict of interests, determination of incompat-
ibilities and other prohibitions’, resuming the provisions stipulated in Law no. 161/2003 
on parliamentary incompatibilities. The Chamber of Deputies Regulation, published in the 
Official Journal of Romania no. 762 of 13 November 2012, at art. 198-200, Section 2 ‘Incom-
patibilities’, also regulates, by resuming the provisions stipulated in the Constitution, some 
legal incompatibilities with the Statute of Deputies and Senators, Law no. 96/2006.

5  ‘The Agency’s aim is to ensure integrity in the exercise of public functions and offices and to 
prevent institutional corruption by assigning responsibilities in the evaluation of the decla-
rations of fortune, of the data and information about fortune as well as the patrimony modi-
fications that have occurred, of potential incompatibilities and conflicts of interest that can 
affect the persons mentioned in art. 1 during their mandate in a public function and office’.

6 Art. 253: ‘The public official’s undertaking who, in the exercise of his/her duties, fulfills a func-
tion or participates in the making of a decision that has brought a direct or indirect mate-



12

bers of Parliament were found in conflicts of interest7 between the 2008-2013 legisla-
tures. Furthermore, NIA completed a number of three evaluation reports against MPs 
who, at that time, held ministerial offices, too8. Moreover, one of the MPs with evalua-
tion report for conflict of interests (and incompatibility) issued by NIA was appointed 
minister in 2012.

The parliamentary mandate of MPs found in conflicts of interest by NIA cannot be 
terminated according to actual constitutional provisions. It is recommendable to take 
into consideration the stipulation of the conflicts of interest at constitutional level, 
similarly to incompatibilities; practically, incompatibilities are stipulated in order to 
avoid conflicts of interest. We have seen that the regulation of conflicts of interest by 
the law establishing the legal status of Deputies and Senators failed. The constitu-
tional texts should provide the framework for dissuasive sanctions for infringements 
of norms related to the conflict of interests of MPs. We can find similar provisions in 
the Constitution of Hungary (art. 4 (c), cap. ‘The Parliament’).

2.3. Incompatibilities regarding the members of the Government

Art. 105 of the Constitution stipulates: ‘The function of member of the Government 
is incompatible with another public function of authority, except that of deputy or of 
senator. Additionally, it is incompatible with any function of professional representa-
tion paid by a trading organisation’. Hence, the incompatibilities regarding the minis-
terial office refer in principle to the public function of authority, as they appear in Law 
no. 161/2003 on transparency in public offices, but also incompatibilities with profes-
sional representation positions remunerated by a trading organisation9. The incom-

rial benefit to that person, to their spouse or to a close or remote relative of theirs up to the 
second degree or to another person with whom they have been in business or trade relation-
ships over the last 5 years, or who has benefited them with services or assistance of any kind, 
shall be punished with imprisonment from 6 months to 5 years and with the prohibition to 
hold any public office on maximum duration. The provisions of paragraph 1 shall not apply 
to the issuance, approval, and adoption laws’.

7 For details see www.integritate.eu. From all 22 cases of MPs in conflicts of interests, the 
administrative conflicts of interest are still pending in courts, and the criminal conflicts of 
interest are pending prosecution.

8 In two of the cases, the Prosecutor’s Office decided not to prosecute (but one is also an ad-
ministrative conflict of interest and pending courts of law), and one is still pending prosecu-
tion.

9 Art. 85 of Law no. 161/2003, on some measures to ensure transparency in the exercise of 
public offices, of public functions in the segment of business as well, on corruption preven-
tion and sanctioning provides: ‘(1) the Government membership is incompatible with: a) 
any other function of public authority, except that of deputy or senator or in the case of other 
circumstances stipulated by the Constitution; b) a function of professional representation 
paid by a trading organization; c) the offices of President, Vice President, director, manager, 
administrator, board member or auditor of trading companies, including banks and other 
credit institutions, insurance companies, and financial and public institutions; d) the func-
tion of president or secretary of general meetings of the shareholders or of the members of 



13

patibility regime for the ministerial office is of a more restrictive nature and it refers 
to private positions inclusively. The Romanian legal regime of incompatibilities with 
the professional representation functions has been inspired by the French model10 and 
seeks to avoid putting either private or professional pressure on the office of member 
of the Government. The exceptions refer to didactic positions or activities, scientific 
research, and literary and artistic production.T he Chamber of Deputies’ Regulation 
introduces in art. 198.2 a number of specific incompatibilities with managerial and 
representational positions within the internal bodies of the Chamber of Deputies and 
the function of member of the Government: ‘The members of the Government may 
not hold positions in the Standing Bureau, in the commission offices, in the European 
Affairs Committee, may not be members of parliamentary delegations, and may not 
be leaders of parliamentary groups’.

2.4. Financial transparency in the parliamentary mandate.
      Declarations of assets and interests

The imperative conditions of integrity and transparency in exercising public func-
tions and offices is conducive to necessity of financial transparency in exercising those 
public functions and offices. MPs and the members of Government are required to 
declare their assets and to submit statements of interest, at the beginning of their man-
date, update these statements during their mandate, as well as at the end of the man-
date. According to Law no. 96/2006, the MPs are required to submit declarations of 
assets and interests11.

The control of the asset declarations aims at the identification of the situations in 
which the property has been acquired illegally, situation qualified by the legislation 
as incompatible with a public office or public function. Incompatibility can also be 
incidental as a result of the application of the legislative provisions on asset control, 
representing the confirmation of a significant difference, following the evaluation of 
the property declaration12.

the companies referred to in point c); e) the function of state representative in the general 
meetings of the companies referred to in point c); f) the position of manager or of member 
of the board of autonomous administrations, companies, and national companies; g) the 
quality of individual trader; h) a member of an economic interest group; i) a public office 
entrusted by a foreign state, except those functions specified in the agreements and conven-
tions to which Romania is a party.’

10 For this purpose, art. 23 of the Constitution of France.
11 Law no. 96/2006 on the Deputies and Senators’ Statute: ‘after the legal meeting of the Cham-

bers and before the validation of the mandate, each deputy and each senator shall submit his 
or her wealth statement as provided by the law’ (art. 4). Furthermore, art. 19 stipulates the 
provision relating to the mandatory submission of the interests statement. ‘The deputies and 
senators are obliged within 15 days from validation to submit to the Secretary General of the 
Chamber whose members they are the affidavit of interests, in accordance with the law’.

12 Art. 17, Law no. 176/2010: ‘The person whose declaration of assets has been assessed and, as 
a result, significant differences have been identified, is found incompatible in the line of art. 



14

Moreover, the penalty of incompatibility applied to a person who occupied an 
eligible position represents the interdiction of the person in question to occupy that 
position for a period of three years after the termination of the mandate. If that person 
has been released or removed from his or her office as a consequence of determining 
the incompatibility, he or she is deprived of the right to fulfil any similar public func-
tion or office for a period of three years, with the exception of elective services. The 
sanctioning of the incompatibility also refers to the annulment of documents issued, 
adopted, or executed in violation of the law of incompatibilities. In consequence, the 
asset declaration control must be effective and independent of any pressure, political 
or of any other nature, or else it can ‘become a fake form of ‘morality’ and, more seri-
ously, a certification of credibility’ (Deleanu, 2006, p. 251).

3. Case studies
3.1. Incompatibility procedure for Members of Parliament

The constitutional sanction for incompatibility of the parliamentary mandate is its 
termination. According to the new provisions of Law on the Legal Status of Deputies 
and Senators, termination of parliamentary mandate occurs as follows: ‘(a) on the date 
stated for incompatibility resignation, submitted to the Standing Bureau of the Cham-
ber the member of which is the deputy or the senator; (b) on the date established for 
the resolution of the Chamber the member of which is the deputy or the senator, and 
which determines the incompatibility; (c) on the date of the final and irrevocable deci-
sion of the court through which the appeal to the National Integrity Agency report 
that established the incompatibility is rejected; (d) at the expiry of the 15 days period 
from the date of acknowledgement of the National Integrity Agency’s evaluation re-
port during which time the deputy or the senator may litigate in the administrative 
court. The acknowledgment is made by the deputy or the senator in question who ad-
dresses the report to the National Integrity Agency under signature of receipt or, if the 
receipt is declined, through plenary statement made by the chairman of the Chamber 
of which the senator or the deputy is member’ (art. 7).

The MP in incompatibility will have to choose, by law, between the parliamentary 
mandate and the function that makes him or her incompatible. Otherwise, according 
to the Constitution, the ex officio mandate termination intervenes.

The parliamentary procedure of declaring the incompatibility of a MP is regulat-
ed by Law no. 96/2006 regarding the MPs Statute (art. 18) and the provisions of the 
Regulations of function and procedure of the two Chambers of Parliament. Thus, two 
premises are stipulated: the situation of MP who is in incompatibility at the beginning 
of the mandate, and the situation when incompatibility occurred during the parlia-
mentary mandate.

18’s provisions’. Further on, related to the significant difference of asset on the duration of 
the public functions and offices mandate, and the revenues obtained in the same period is, 
according to art. 18 of the same law, ‘the difference that exceeds 10,000 EUR, or the equiva-
lent in RON of the same amount’.



15

3.1.1. The Deputy or Senator, who at the beginning of their mandate is in one of the 
situations of incompatibility provided by law, shall notify within 15 days the Stand-
ing Bureau of the Chamber to which he or she belongs. After the expiry of this term, 
the deputy or senator will have to opt between the Deputy or Senator mandate and 
the function or functions which make him/her incompatible, within 30 days, resigning 
accordingly his or her option.

After the expiry of 30 days, if the deputy or the senator has not communicated 
his or her option, he or she ‘remains in incompatibility’. The next step consists in a 
procedure made by the competent Standing committee, through which the cases of 
incompatibility are analyzed: the committee will prepare a report within 15 days after 
its notification, requesting NIA to state its position. The Agency will respond within 
five days. The committee’s report is submitted to the Permanent Bureau, who will 
inform the deputy or the senator. Subsequently, the Chamber Bureau submits for ap-
proval a draft resolution establishing the state of incompatibility and termination of 
the parliamentary mandate, in the first plenary meeting.

So if the deputy’s or senator’s option for resignation is not expressed, according to 
this law, he or she will ‘remain in incompatibility’ until the Chamber decides, by vote, 
the termination of the parliamentary mandate. Because the decision is made by vote, 
the MP is not considered to have legally resigned ex officio at the end of the option 
term. The standing committee of the Chamber drafting the report will request NIA’s 
point of view, but the Chamber decides upon the report by a convenience vote, which 
is, in the end, a political, an opportunity vote. The latency of the state of incompatibil-
ity is thus prolonged for a period of at least 60 days, if the vote quorum meets in the 
first plenary session, scheduled after the execution of the commission report.

The previous regulation of the Law of MPs’ Statute seemed more efficient, because 
the MP was considered to have legally resigned when he or she had failed to express 
his or her decision of resignation, within 30 days after the notification of the state of 
incompatibility. In that case the Chamber only took act of the situation that entailed ex 
officio resignation and did not vote upon the existence of the state of incompatibility.

The modification of the current procedure, even if now it requires NIA’s point of 
view, which can be eventually passed by the plenum by way of a convenience vote, 
can only lead to a possible extension of the state of incompatibility13.

13 Relevant in this respect is the case of senator Mircea Diaconu, who truthfully requested the 
Judiciary Committee of the Senate to clarify the situation of his incompatibilities prior to the 
validation of his parliamentary mandate; the judiciary committee ‘considered’ that he was 
not involved in any case of incompatibility, a solution subsequently invalidated by NIA and 
the court of law. The High Court stated: ‘the Senate was in error and found the appellant to 
have been in a state of incompatibility during all this period, without, of course, there being 
any fault on his name. Mr. Diaconu requested in all honesty the Legal Committee to release 
the notice on the overlapping of functions and the latter found at that time that there is no 
incompatibility, consequently validating his senator mandate’.



16

3.1.2. Any incompatibility occurring during the exercise of parliamentary mandate 
must be notified to the Standing Bureau of the Chamber, in writing, no later than 15 
days from the date of its occurrence. If within 30 days from the notification, the MP 
does not resign from the office that makes him or her incompatible, the procedure 
described above is applied.

The procedure is identical also when the MP addresses the Standing Bureau of the 
Chamber to clarify a possible incompatibility. This is a case of impermissible overlap-
ping of the Chamber’s competencies with the specific prerogatives of NIA (Stefan, 
2013)14. The Statute does not specify what happens if the ‘clarification’ of the incom-
patibility involves different points of view expressed by NIA and the parliamentary 
commission in its report. Moreover, such a view may have adverse legal consequenc-
es to the holder of the parliamentary mandate, case in which NIA or any court of law 
would conclude otherwise.

The Chambers’ Regulations15 establish that the procedure of declaring the state of 
incompatibility requires referral from the Judiciary, Discipline and Immunities Com-
mission, who issues a report examining the case and making proposals to the Cham-
ber. The Chamber will approve the report by a majority vote.

Thus, in the parliamentary procedure of stating the incompatibility, the acknowl-
edgement of the ex officio dismissal (as sanction intervened by force of constitutional 
texts) is subject to voting decision, the new provisions’ purpose being the Chambers 
substitutiting NIA’s specific prerogatives. Thus, we are confronted with a form of 
‘self-control’ which, mostly for political reasons, often turns into ‘non-control’, pre-
sumably intended to eliminate as much as possible NIA’s legal competences.

The Statute of the MPs mentions: ‘in case the National Integrity Agency has com-
pleted an evaluation report on a deputy’s or a senator’s incompatibility, the evalua-
tion report shall be sent within five days after completion to the person concerned, as 
well as to the Chamber whose member he or she is, in accordance with art. 21.4, Law 
no. 176/2010. The Chambers’ Standing Bureau promptly notifies its members, provid-
ing them with a copy of the report’ (art. 18.6).

The new provisions of the Statute of MPs does not specify the legal solution for 
cases in which the procedure initiated by the Standing Bureau of the Chamber over-
laps with the procedure of NIA (or when the two procedures have different results; or, 
the application of procedural terms; etc.). According to MPs’ Statute, the termination 
of the parliamentary mandate occurs on expiry of 15 days from the date the MP was 
notified with NIA’s report, if within this period he/she does not litigate it in a court 
of law16.

14 From CVM Report, January 2013: ‘it is also important to clarify that NIA is the only authority 
in charge that can confirm the potential incompatibilities of elected and appointed officials’.

15 Art. 204 of the Chamber of Deputies Regulation and art. 183 of the Senate Regulation.
16 The initial 45 days term was declared unconstitutional by the Constitutional Court (Decision 

no. 81 of 27 February 2013), on account of its discriminatory nature, as it applied a differ-



17

The modified version of the MPs’ Statute contains a new text regulating expressis 
verbis the principle of separation of powers and the rule of law fundament, by which 
definitive and irrevocable decisions of courts of law are mandatory. The new provi-
sion is a direct consequence of the Decision of the Constitutional Court no. 972 of 21 
November 2012 (to resolve a constitutional legal conflict between the Legislature and 
the Judiciary). In this way, it is provided the ex oficcio termination of the parliamentary 
mandate at the time the final and irrevocable decision of a court of law decides conse-
quently17. Under these new circumstances, the president of the Chamber acknowledg-
es the termination of the MP mandate and the Chamber votes only upon the vacancy 
of the deputy or senator position.

As a preliminary conclusion, the new texts on parliamentary procedures in case of 
incompatibility, regarding ascertaining the termination of the parliamentary mandate 
overlap NIA’s competences. Moreover, new attempts of regulating MPs’ conflicts of 
interest, as well as of promoting a unified and coherent legislation, with effective dis-
suasive penalties, in the sense of ensuring the application of the principle of integrity 
of the parliamentary mandate failed.

As the CVM Report from June 2012 notes, the two Houses flagrantly breached the 
Constitution, failing to put into practice the statutory stipulations regarding the ter-
mination of the parliamentary mandate in case of incompatibilities: ‘NIA’s existence 
was called back into question by representatives of all main political parties in Parlia-
ment. In turn, the Parliament failed to enforce decisions on cases of incompatibility 
and conflict of interests.’ The following examples are evocative. Senator M. Diaconu 
requested clarifications on his case of incompatibility from the Judiciary Committee 
of the Senate before the validation of his parliamentary mandate on November 30, 
2008. The Judiciary Committee decided the Senator was not in a state of incompatibil-
ity and validated his mandate by Senate Decision no. 68/2008, of 19 December 2008. 
NIA’s evaluation report (issued on January 26, 2011) found the Senator had been in 
incompatibility since December 19, 2008, due to his simultaneously office of Senator 
and director of Nottara theatre (the latter being a leading office of a public institution). 
NIA’s evaluation report was challenged in the competent courts of law. The final and 
irrevocable decision of High Court of Cassation and Justice, rejecting M. Diaconu ap-
peal upon NIA’s report, was issued on June 19, 2012. It means that NIA’s evalua-
tion report was definitive, by the force of law. Having become minister of culture in 
the interim, the senator resigned from the ministerial position at the date of the final 
and irrevocable decision of the High Court of Cassation and Justice. But things have 
evolved in a different manner with regard to his parliamentary office. On October 29, 
2012, the Senate debated the report of the Judiciary Committee, which proposed the 

ent procedural treatment to other categories of occupants of ‘public positions and offices’, 
according to Law no. 176/2010 regarding the integrity in exercising public functions and 
offices.

17 In the litigations upon NIA’s reports on stating incompatibilities of MPs.



18

termination of the mandate, but the vote in the Senate was postponed to the next day. 
With 23 votes ‘for’, 32 ‘against’ and 10 ‘abstentions’, the Judiciary Committee’s report 
(which stated the ex officio termination of the mandate) was rejected. The Senate practi-
cally opposed the enforcement of a definitive and irrevocable court of law resolution, 
by means of a political vote, infringing in a preposterous manner the most elementary 
principles of the rule of law: the principle of separation and balance of powers in the 
state, the equality principle (‘Nobody is above the law’, art. 16.2 of the Constitution), 
the constitutional principles of justice administration. The President of the Superior 
Council of Magistracy notified the Constitutional Court with a juridical constitutional 
conflict, upon the negative vote expressed by Parliament. The Constitutional Court 
resolves the existence of a juridical constitutional conflict between the Judiciary and 
the Legislative, ‘conflict generated by the Senate’s refusal to acknowledge the termi-
nation of Mr. Mircea Diaconu’s senator status, by enforcing a final and irrevocable 
decision that confirms the senator’s incompatibility’ (Decision no. 972 of 21 Novem-
ber, 2012, published on November 28, 2012). The termination of the parliamentary 
mandate occurred on December 13, 2012, when the Senate’s resolution of making note 
of M. Diaconu’s resignation was published in the Official Journal of Romania. The 
solution adopted by the Romanian Senate for the enforcement of the Constitutional 
Court’s decision is at the limit of constitutionalism. Since at the implementation of the 
Court’s decision, the Senate was obliged to take note of the ex officio termination of the 
mandate, the sanction for the ex officio termination was peremptorily regulated by the 
constitutional text. In this case, the resignation solution is, at the least, questionable.

In the case of Deputy S. Andon, the incompatibility of the deputy mandate exer-
cised concomitantly with the lawyer’s office in a case of corruption was presented by 
NIA Ascertaining Act of June 1, 2009. The Act remains definitive by the decision of 
the High Court of Cassation and Justice no. 1807 dated April 3, 2012, final and irrevo-
cable. Through the Resolution of the Chamber of Deputies no. 30 of 2012, published in 
Official Journal of Romania no. 647 of 11 September 201218, the Chamber of Deputies 
noted the ex officio termination of the deputy mandate of Mr. S. Andon and declared 
his seat vacant.

As for the case of Deputy F. Pâslaru, the assessment Report of NIA, dated No-
vember 7, 2011, notes that the deputy was in a situation of conflict of interests. NIA’s 
report remained definitive by non-contestation. According to art. 25 of Law 176/2010 
on integrity in public office, ‘the person (…) who was established to be in conflict of 
interests or in incompatibility is deprived of the right to exercise any public function 
or office stipulated by the present law, except the electoral ones, for a period of three 
years from the date of release or dismissal from the office or public function or of the 
rightful termination of their mandate. If the person in question had an eligible office, 

18 Five months after the final and irrevocable decision of the High Court of Cassation and Jus-
tice and as a consequence of CVM report of June 2012 mentioning the Parliament had failed 
to enforce judgments concerning the cases of incompatibility and conflict interests.



19

he or she cannot occupy the same position for a period of three years after the termina-
tion of their mandate’. The Chamber of Deputies endorsed the new deputy mandate 
of Mr. F. Pâslaru after December 2012’s elections. As we have shown, the conflicts of 
interest regulation for the parliamentary mandate is not regulated at constitutional 
level. A future revision of the Constitution should take into account the express regu-
lation of conflict of interests, as a case of parliamentary mandate termination. In the 
period 2008-2013, NIA found 25 cases of MPs in a state of incompatibility ([Online] 
www.integritate.eu). For five of these cases the evaluation reports or the ascertaining 
documents remained definitive; two cases were invalidated by the courts of law; as 
for the rest of the cases, they are pending in courts. In two of these cases, the persons 
in question fulfilled simultaneously the function of senator and that of minister. One’s 
mandate was terminated after the interventions of courts of law and of the Constitu-
tional Court (see above mentioned example of M. Diaconu). The second one was a 
Senator appointed in a ministry position, after the disclosure of the evaluation report 
of NIA for incompatibility; the appeal on the assessment report is still pending in 
court, but the senator is no longer occupying a ministry position.

3.2. Incompatibility in the case of members of the Government

Law no. 161/2003, regulating the incompatibility of members of Government func-
tions, states that for the offices of Prime Minister, minister, and deputy minister spe-
cial corresponding legal provisions of Law no. 90/2001 on the organization and func-
tioning of the Romanian Government and ministries are applied.

According to article 5, Law no. 90/2001, ‘a member of the Government office shall 
cease upon (...) a state of incompatibility (...)’. Thus, if termination of Government 
membership intervenes due to incompatibility, the President of Romania takes note 
of this and declares the position of member of the Government vacant, at the Prime 
Minister’s proposal.

Further on, the law says that, for the members of the Government, once NIA’s eval-
uation report is completed, the report regarding the Prime Minister will be submitted 
to Parliament, and those regarding other members of Government will be submitted 
to the Prime Minister who proposes the dismissal of the minister to the President of 
Romania (according to the Romanian Constitution and Law no. 90/2001 on the orga-
nization and functioning of the Romanian Government and ministries (art. 26 of Law 
no. 176/2010).

In this respect, when an evaluation report of NIA finds one of the Government 
members to be in incompatibility, the decision on dismissal is made by the President 
at the proposal of the Prime Minister. Basically, the expression ‘the Prime Minister’s 
proposal’ should refer to the conclusions of the assessment made by NIA. In accor-
dance with the legal provisions, NIA’s evaluation report may be appealed in the ad-
ministrative contentious courts of law, within 15 days from the personal notification. 
Therefore, the legal obligation of determining the termination of a ministerial function 
intervenes at the moment when the evaluation report is declared definitive, by non-



20

contestation, or when the court’s decision (on the rejection of the appeal regarding the 
evaluation report) is final and irrevocable. The subsequent question would be: should 
the Prime Minister request the dismissal of a minister at the moment of issuing NIA’s 
evaluation report stating the incompatibility, or the conflict of interests of a member 
of the Government or the Prime Minister is entitled to permit the maintenance of a 
member of the Government, although his integrity is under ethical suspicion until the 
validation of NIA’s solution by the court of law?

In practice, several solutions were adopted: the resignation solution – the minister 
subject to the evaluation procedure resigned (e.g. I.N. Botis, or B. Cepoi), the revo-
cation solution – the Secretary General of the Government was dismissed simulta-
neously with the request for an opinion from NIA on the existence of certain pre-
mises in relation to the conflict of interests (e.g. D. Andreescu), the Adjunct Secretary 
General of the Government was revoked (e.g. D. Mihalache), or, on the other hand, 
there are ministers who continued their mandates (e.g. O. Silaghi, L. Pop, E. Hellvig), 
but were not appointed in the new government formula after the parliamentary elec-
tions in December 2012. They have become, however, members of Parliament after the 
elections in December 2012, because the incompatibility evaluation reports have not 
yet remained definitive in front of courts of law. Two MPs were appointed ministers, 
although being under suspicion of incompatibility and engaged in courts of law tri-
als against NIA’s evaluation report (e.g. Senator M. Diaconu, appointed Minister of 
Culture in May 2012, and the Minister of Education, E. Andronescu, in 2012). Between 
2008 and 2013, NIA ascertained four cases of Government members in incompatibility 
([Online] www.integritate.eu), in one of these cases the act of ascertainment of the in-
compatibility was annulled by a court of law, in another three cases files are currently 
pending before courts of law. In one particular case, the incompatibility resides in a 
significant discrepancy between the property acquired by a certain minister and his 
income. Two ministers were appointed in office although against them was issued a 
report for incompatibility and conflict of interests.

The European Commission Report on Progress of Romania under the Cooperation 
and Verification Mechanism of January 30, 2013 notes: ‘The persons in public offices 
must demonstrate that they meet high standards of integrity.’ (…) ‘In November 2012, 
the reports submitted by NIA on some ministers and senior officials did not lead to 
their dismissal. The new Government has reiterated their objective of fighting corrup-
tion, yet three of the newly appointed ministers were investigated for corruption. In 
its recommendations formulated in July, the Commission expressed the hope that the 
ministers will set an example of integrity compliance: the same is expected in cases 
regarding the allegations of corruption. For a government to preserve its credibility, 
it is essential that the ministers enjoy public confidence, namely, they should present 
their resignation if a NIA report on integrity is emitted against them. The constitu-
tional requirements, including suspension from the office of a minister on basis of 
court referral, will be applied in full.’



21

Regarding these standards of integrity relative to Government members, they 
seem to be highly dissimilar when the same person is in the meantime MP, as well. 
Although the member of Government resigns or is removed from the ministerial 
office, for reasons of incompatibility or conflicts of interest, he or she carries on 
their parliamentary mandate, without any legal or moral restraints. Thus, the ‘par-
liamentary ministers’ who are found either incompatible or in a state of conflict of 
interests, continue to exercise their parliamentary mandate until the date on which 
a final and irrevocable court of law decision will state their dismissal. Or more, until 
the Constitutional Court will require the Senate to respect the rule of law, and to 
respect the decisions of the courts of law. Although these situations have constitu-
tional explanations related to the differences between the elected mandate and the 
appointed mandate, the consequences upon the low public trust in the Parliament 
will lead to questions about the legitimacy of the parliamentary mandate and of 
public decisions.

4. Conclusions
Firstly, the unification of legislation is needed for a coherent and unitary regula-

tion of incompatibilities and conflicts of interest for MPs. It is an objective that can 
ensure the optimal application of the rule of law. Currently, the legal framework of 
the regime of incompatibilities and conflicts of interest of the parliamentary man-
date is composed of Law no. 96/2006 on the Deputies and Senators’ Statute, Law no. 
176/2010 on integrity in the exercise of public functions and offices, amended by Law 
no. 144/2007 on the establishment, organization, and functioning of the National In-
tegrity Agency, and for amendments and supplementations of other normative acts, 
Law no. 161/2003 on measures to ensure transparency in the exercise of public offices 
and of public functions in the segment of business as well, in corruption prevention 
and sanctioning, and also of the Regulations of the two Houses of Parliament.

It is recommendable that the procedure of revision of the Constitution takes into 
consideration a new regulation of the conflicts of interests for MPs. If the reason for in-
stituting incompatibilities includes the prevention of the conflict of interests, for pro-
moting and respecting the principles of impartiality, integrity, transparency of public 
decision, and the supremacy of public interest, the constitutional text could provide 
the general framework for sanctions for infringements of norms related to the conflict 
of interests (see GRECO 2005, 2007; also, see above sections 2.2 and 2.3).

Secondly, the parliamentary procedures must comply with the distinctive and spe-
cific prerogatives of the National Integrity Agency, without instituting a procedure to 
overlap with that of the Agency. Also, any ambiguous and ineffective regulations, lax 
deadlines meant as subterfuge, provisions lacking clarity and predictability should 
be abrogated from the Law regarding the legal status of Deputies and Senators. The 
new provisions of the Statute of MPs establish a procedure that overlaps with the NIA 
procedure, denying the very significance of this institution. Measures rendering the 
current procedure difficult to manage, requiring a NIA point of view, over which the 



22

plenum can pass by voting, represent the prerequisites for a status of non-control (see 
CVM Report, January 2013; also, see above section 2.4 and section 3.1.1.).

Thirdly, clarification and transparency must characterize parliamentary proce-
dures regarding the confirmation of the parliamentary mandate’s termination for the 
case of incompatibility. The European Commission Report to the European Parlia-
ment and Council, on the progress in Romania under the CVM of January 31, 2013 
notes: ‘Parliament would enhance its credibility as a result of the application of clearer 
procedures for case management in the situation of MPs who are subject to decision 
making on integrity aspects’. CVM emphasizes further the inability of the Parliament 
to apply the principle of separation of powers and the constitutional principles relat-
ing to justice, and also, the inefficiency of the additional regulations on conflict of 
interests as a disciplinary offense for MPs (see above section 3.1.2).

Finally, integrity standards should provide not only credibility but also legitimacy 
to the two Chambers of the Parliament; they should be effectively implemented in the 
legislation on the Deputies and Senators’ Statute.

For the same reasons, the compatibility of the Government office with parliamen-
tary membership must find its expression in the consistent way in which incompat-
ibilities are sanctioned. The consecrated exception, at the constitutional level, related 
to the compatibility between exercising a parliamentary mandate simultaneously 
with a governmental mandate must be correlated – on both constitutional and infra-
constitutional level – with the provisions on sanctions applied to incompatibilities and 
mandate termination procedures (see above section 3.2).

The lack of transparency and consistency of parliamentary procedures on estab-
lishing the incompatibilities and conflicts of interest of the parliamentary mandate, 
in certain instances, is questioning the very existence and specialized competency of 
NIA, whereas on other occasions, it allows the application of certain parliamentary 
solutions that are situated at the very limit or even beyond constitutional limits.

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