Overview of environment legislation in Romania

Introduction

Public concern over the impact that human activities have on the environment is increasingly being recognised in Romania.

The necessity of having modern legislation capable of handling the various environment problems which have resulted from the last century's economic developments is now well understood. This issue was first highlighted as a serious issue of concern, as in other Central and Eastern European countries, at the beginning of the 1980s, when the communist governments' of the region identified serious internal problems for the respective countries resulting from environmental degradation.

The first steps towards implementing specific environmental protection legislation in Romania were taken at the beginning of 1970s, however even when such a legal framework was in place, effective administration provisions for the enforcement of these laws was not forthcoming. This was largely because of the communist policies which prioritised production at any cost.

The policy has now changed due to multiple transformations in Romanian society during the last ten years such as the creation of a democratic society: economic growth and not least the pending process of EU accession which requires the implementation of EU Environmental Laws often referred to as the "Environment Aquis".

The Main Legal Framework

Regulations for and relating to the protection of the environment, including the requirements for legal entities, their liabilities and related rights and obligations, as well as sanctions and legal consequences are to be found in the Romanian Constitution, various acts of the Parliament (laws) and Government and local authorities' decisions. Based on the principles stated by the Constitution, the laws issued by the Parliament set out the general rules, which are then further detailed by the decisions of the Government or local authorities. This is similar to the approach in the UK to environmental legislation, where the framework is often set out in a statute passed by Parliament, such as the Environmental Protection Act 1990 and then detailed rules to allow this to function are provided in regulations made pursuant to the statute such as the Waste Management Licensing Regulations 1994.

The Constitution

The Romanian Constitution links the principle of environmental protection to the protection of private property. Article 41 par. (6) states that "the right of property requires the observance of duties relating to environmental protection". Also, according to article 134 par. (2) letter (e), the State is bound by Constitution to secure "environmental protection and recovery, as well as preservation of the ecological balance".

Acts of Parliament

The primary provisions of environmental law are in the Acts of Parliament, the most relevant being:

1. Law No. 17/1990 regarding the legal treatment of internal sea going waters, territorial sea and contiguous areas;

2. Law No. 137/1995 on the environmental protection;

3. Waters Law No. 107/1996;

4. Law No. 103/1996 regarding the protection of hunting grounds;

5. Law No. 107/1999 for the approval of the Government Ordinance No. 81/1998 regarding the improvement by afforestation of weathered lands;

6. Law no. 82/1993 regarding the establishment of the "Danube Delta" Biosphere Reservation etc.

The most significant and extensive piece of legislation, serving as a general framework for environmental protection, is Law No. 137/1995 on environmental protection. The object of this law is to regulate environmental protection, which is considered as an objective of major public interest, on the basis of the principles and strategic elements listed below.

• The principle of precaution in decision-making.
• The principle of prevention of ecological risks and damage occurrence.
• Principle of conservation of biodiversity and ecosystem specific to the natural biogeographical structure.
• The "Polluter-pays" principle.
• The removal on a priority basis of the pollutants that directly and severely jeopardise public health.
• Setting up of the integrated national environmental monitoring system.
• Sustainable use.
• Maintenance, improvement of environmental quality and reconstruction of damaged areas.
• Setting up of a framework for the participation of non-governmental organisations and of the population in the decision-making and implementation.
• Developing international collaboration to ensure the quality of the environment. The ways of implementing the principles and strategic elements are through:
• the adoption of environmental policies harmonised with development programmes;
• compulsory procedures for environmental impact assessments in the initial stage of the projects, programmes, or other development activities;
• correlation of environmental planning with the territorial and urban planning;
• the introduction of economic incentive-based or coercive instruments;
• the resolution of environmental problems at the appropriate level of competence, depending on the extensiveness of the problem at issue;
• the elaboration of rules and standards, their harmonisation with the international regulations and introduction of compliance programmes;
• promotion of basic and applicative research in the environmental protection field;
• training and education of the population as well as the participation of the non-governmental organisations in the decision-making and implementation.

For the purpose of environmental protection the Law No. 137/1995 on environmental protection provides that the State must recognise the right of all persons to a healthy environment. To this end, it guarantees: freedom of access to information regarding environmental quality; the right of association in organisations defending environmental quality; the right of public consultation in the decision-making process regarding the development of environmental policies, legislation and regulations; the issuing of environmental agreements and permits, including those for territorial and urban planning; the right to appeal directly through some associations to the administrative or judicial authorities in view of prevention or in the case of direct or indirect damage occurrence; and, lastly, the right to be indemnified for damage suffered.

The Law No. 137/1995 provides also for regulation of economic and social activities having an environmental impact. It sets down a permitting procedure for the protection of natural resources and conservation of biodiversity. It also provides for the prerogatives and duties of the environmental protection authorities such as the Ministry of Waters, Forests and Environmental Protection and the Agency for Environmental Protection, as well as other central and local authorities. The law also provides for the obligations of natural and legal persons in relation to the environment.

Government Acts

The laws issued by the Parliament are, as described above, implemented through Government acts (ordinances and decisions). Consequently, the Romanian Government, pursuant to the power given to it by the Parliament in such laws, issues its own acts in order to set down detailed procedural rules, or to define standards, limits or other indicators. Also, the Government through its Ministry of Environment is the authority who is entitled to implement the national projects for environmental protection and the State credits co-ordinator and monitor for development and implementation of such projects.

International Treaties

Romania is a party to a significant number of major international environmental treaties. Under Romanian law, international treaties have to be approved by the Romanian law, so in effect by Parliament, before taking effect.

Enforcement

Although civil liabilities are being enforced by the authorities, there have been relatively few successful claims. Administrative measures are taken more seriously, although the creation of large-scale local unemployment has in some cases acted as a deterrent to effective enforcement measures such as the closing down of polluting sites.

Regulatory Authorities

The protection of the environment is one of the main tasks of the Ministry of Waters, Forests and Environmental Protection ("MAPPM"). MAPPM is the central environmental protection authority which co-ordinates the territorial authorities with jurisdiction and responsibilities in the environmental protection field. The prerogative and responsibilities of MAPPM are detailed in the Law No. 137/1995 the most relevant of them being:

• to elaborate and to promote the environmental national strategy for sustainable development;
• to create the institutional-administrative framework for identifying and promoting research programmes, for educating and training qualified personnel for the surveillance, analysis, assessment, and control of the environment, and to certify such personnel;
• to follow the implementation of the programme and measures for compliance with international conventions and agreements of which Romania is a signatory party;
• to collaborate with similar institutions and organisations in other countries and to represent the Government in the international environmental protection relationships;
• to apply penalties to the operators of activities which are in non-compliance;
• to provide interested parties with centralised data on the state of the environment, the environmental protection policy and programmes etc.

The other major authority with jurisdiction in the environmental protection field is the Agency for Environmental Protection ("APM"). APM is the authority responsible for issuing environment licenses for many of the activities with environmental impact, except those which are the object of specific regulations such as: nuclear activities; the import, transit and export of offal of any kind; and also the import-export of micro-organisms, plants and animals.

Romanian law also gives limited jurisdiction in the environmental protection field to the local councils of the municipalities. This jurisdiction is related mainly to the urban environment.

Liability

The Law No. 137/1995 incorporates into Romanian law the "polluter-pays" principle, which means that the polluter has to pay for the harm caused to peoples' health, to their goods and to the environment. The liability for harm caused to the environment is independent of any fault of the author and is therefore strict. Consequently, the polluter may be the owner of a land, the tenant, the concessionaire or a third party.

If the environment is damaged by more than one person, they will be jointly held responsible towards third parties. Between the authors of the action causing damages to the environment the liability is several. If the land forms the object of a lease agreement, a concession agreement, a leasing operation or of another type of agreement executed with the view of administrating the land, the person liable for its contamination will no longer be the owner, but the person in charge of its administration (tenant, concessionaire, etc.).

If the polluter is an employee of a company and the polluting activity is in connection with its activities, the company whose employee is the polluter will be liable for the payment of compensation to the victim. This provision of the law entitles the victim to demand compensation from the company, avoiding the risk of the employee's insolvency.

If the pollutant itself is a good (i.e. accidental overflow of offal) causing harm to the environment or damage to a natural or legal person, the person held responsible will be the person in charge with the responsibility over the good (i.e. owner, tenant, guardian - in the legal sense of the word.)

The parties of an agreement having as its object the transfer of contaminated property are free to establish any warranty, indemnity or acknowledgements as to their liability. Under Romanian law, the owner of the land (the buyer) will remain liable in front of third parties (as the agreement executed between him and the seller is not open to third parties to enforce), being entitled to recover the damages from the seller.

The Law No. 137/195 stipulates a special obligation for the owner of a land used for an activity with environmental impact, in case it desires to sell the relevant land. The seller has to draw up the environment survey, with the view of establishing the obligations regarding the amelioration of the environment within the impact area of the relevant activity.

The competent authority revises the environmental survey, establishes the compliance programme and the seller negotiates with the buyer what obligations will be opposable to the seller and what compensation he will receive for the application of the measures for protection and ecological reconstruction.

Conclusion

Although Romania has enacted environmental protection regulations in accordance with international and EU conventions and agreements, the practice shows that there are still many areas uncovered by the legislation. Even where such laws have been enacted they are, in many aspects, largely untested in practice. Like many other countries which have enacted modern environment protection laws the important next step is to ensure that these laws are now effectively enforced in practice. However, Romanian authorities are actively trying to impose obligations and remedies for maintaining and improving the environment as well as working towards active and consistent enforcement of the existing laws.

With Romania focused on achieving the earliest possible accession to the EU, Romania will need to further harmonise its legislation with EU environment laws or the Environment Aquis and this is likely to be the main driver in environment protection policy over the next few years.

For further information on this topic, please contact Marius Cristian Birladeanu at [email protected] or on +40 1 231 6470.