"In times of war, the laws fall silent - When weapons speak, the laws are silent." - Marcus Tullius Cicero
In a democratic society, justice represents the foundation upon which the entire social edifice is built. When this foundation shakes, when citizens' rights are ignored and the institutions meant to protect them fail miserably, the very essence of the rule of law is called into question.
The case of the company INCORPORO SRL, a Kafkaesque odyssey through the thickets of Romanian justice, represents a ruthless examination of the systemic dysfunctions that undermine citizens' trust in the justice process.
Beyond the immediate implications for those directly affected, this case raises fundamental questions regarding the adherence to constitutional principles, the supremacy of European law, and the commitments undertaken by Romania as a member state of the European Union.
Prologue - simple establishment of a company
It all began in 2023 when INCORPORO SRL initiated the process of registering the company with the Trade Register Office. What seemed like a simple, routine step in any entrepreneur's life quickly turned into an endless bureaucratic nightmare.
The reason cited by the authorities for rejecting the application was the use of a CAEN code that is presumed to be reserved exclusively for certain regulated professions.
Beyond the absurdity of the situation itself, this refusal has revealed a much graver issue: the erroneous and abusive interpretation of legislation by state institutions.
Although the National Institute of Statistics itself clarified that the allocation of CAEN codes does not, in itself, generate rights and obligations, but serves a purely statistical role, the authorities have persisted in their rigid and unfounded position.
An unenforced legal framework
The legal framework regarding electronic signatures, an annex element of the dispute, is governed by EU Regulation 910/2014 (eIDAS) and Law 455/2001. Although Law 455/2001 is often presented as a transposition of European provisions into domestic law, the reality is that it constitutes a distinct national regulation with its own legal regime.
The eIDAS Regulation, on the other hand, enjoys direct applicability in all member states without the need for formal transposition. The fundamental principle of mutual recognition of qualified electronic signatures, regardless of the country of origin, is a cornerstone of the European digital single market.
Any violation of this principle undermines the very essence of European construction and creates unacceptable discrimination between citizens and economic operators from different member states.
Despite these clear and mandatory provisions, Romanian courts have arbitrarily and repeatedly refused to recognize the validity of the electronic signature of INCORPORO SRL, citing unclear and contradictory reasons.
The unjustified rejection by the High Court of Cassation and Justice of the request to refer to the Constitutional Court regarding the constitutionality of Article 121 of Law No. 265/2022 (especially point 4) highlights both a lack of respect for the rule of law and a denial of effective access to justice.
The citizen is effectively held in legal limbo by successive interpretations and refusals, without the possibility of obtaining real constitutional control.
Instead of constitutional issues being resolved by the Constitutional Court, the decision is actually made in lower courts, which simply reject the request as inadmissible, even without grounds.
The postponement and discouragement of the litigant from seeking justice
The deliberate evasion of the reasoning behind the rejection adds a note of absurdity and defiance towards the litigant. This tactic, well-known to lawyers in Romania, aims to effectively obstruct access to legal remedies and to hinder any efforts to rectify the situation.
In a true rule of law, reasoning is a fundamental guarantee of the transparency and accountability of the judicial act, not a bureaucratic whim that judges can dispense with at their discretion.
In this desolate landscape, where the supreme courts openly defy directly applicable legal norms, the citizen has too few levers at their disposal to defend their rights.
Regarding electronic signatures, the administrative route could have represented a remedy, but the response received from the Authority for Digitalization of Romania (ADR) dispels this hope as well.
The ADR refused to comment on the legality of the electronic seal of the ICCJ, limiting itself to confirming that the signature of the undersigned was legal. Probably, it did this knowing that a candid response would have dealt a blow to the artificially sustained reputation of the courts. As a decent, reasonable citizen, I insisted, providing sufficient clarifications and officially requesting the ADR to also respond to those questions posed.
The ADR rejected the preliminary complaint filed by INCORPORO SRL on the grounds that the company, being in the process of incorporation, lacks the capacity to act in relation to the institution's fault. Such a rigid and formalistic approach disregards the legal reality of the anticipated personality that commercial companies enjoy before acquiring full legal personality.
Moreover, it is in blatant contradiction with the implicit recognition of the status of "legal entity" by the High Court through the mere citation of the company in the proceedings, and even with the acknowledgment from the ADR, which initially responded to some of the less sensitive questions we posed.
Practically, only SOLVIT Romania remains to uphold Romania's honor before European institutions. To this end, the company INCORPORO SRL has approached SOLVIT Romania, an institution designed to facilitate the resolution of cross-border issues caused by the incorrect application of EU legislation regarding the internal market by national public authorities.
Beyond the technical competence that should be demonstrated in resolving cases of violations of European law, SOLVIT Romania has shown a staggering ineptitude, to put it mildly.
"On June 14, 2024, SOLVIT Romania decided to close the case as not within the jurisdiction of SOLVIT due to being "exclusively of an internal nature", ignoring the evident facts of the case." - Our summary
The institution erroneously invoked the absence of the "cross-border element" solely on the grounds that the claimant is a Romanian company based in Romania. However, the consistent case law of the CJEU and the recommendations of the European Commission clearly establish that the cross-border element lies in the impact on the freedom to provide services in the internal market, as well as the mutual recognition of documents issued by service providers from other member states.
"Cross-border issue": a problem faced by an applicant from a member state that involves a potential violation of Union law governing the internal market by a public authority from another member state; this includes issues caused to applicants by their own public administrations, following the exercise of rights related to free movement or when attempting to exercise these rights;
RECOMMENDATION OF THE COMMISSION of 17 September 2013 regarding the principles governing SOLVIT
The importance of the SOLVIT center's activity can be appreciated, on one hand, through the lens of its role in the real assessment of the correct application of European law in Romania (cases where Romanian citizens or citizens of other EU states report an issue with the Romanian administration) and the level of correct application of European law in other states, in terms of the rights enjoyed by Romanian citizens (cases where Romanian citizens report an issue with the administration of an EU member state). - Ministry of Foreign Affairs, about SOLVIT ROMANIA
SOLVIT has chosen, however, to stubbornly ignore these principles, demonstrating a poor understanding of the basic concepts of EU law and a lack of respect for its institutional mission.
The lamentable failure of SOLVIT Romania in this case unfortunately does not constitute an exception. It fits into a broader picture of systemic dysfunctions and excessive politicization of the institutions meant to uphold the rule of law. The abusive interpretation of the concept of "cross-border issue," the false invocation of lack of competence, the delays, and the avoidance - all these are part of the arsenal of tactics through which national authorities evade their obligations under European treaties.
Beyond the immediate implications for the business environment and the security of the civil circuit, such institutional behavior has devastating long-term consequences on citizens' trust in the justice system and the rule of law in general.
When the rights guaranteed by the Constitution and European norms become mere scraps of paper, when institutions decline their competencies at will, and when effective recourse to an independent court becomes a mirage, the very fabric of social cohesion is severely undermined.
Corruption of institutions and indifferent magistrates
There is no more tragic image of a system's decline than the perverse transformation of tools meant to generate justice into instruments of oppression and injustice.
When the very institutions empowered to uphold the law become complicit in its violation, when the magistrates themselves endorse abuse instead of sanctioning it, the solution can no longer come from within.
No one is above the law - Article 16, paragraph (2), Constitution
The article in the constitution, although written decades ago, stands in direct opposition to the current reality of the Romanian judicial system. When judges assume the right to interpret the law at their discretion or neglect their obligation to take the necessary diligence in their rulings, based on obscure interests or political calculations, the essence of representative democracy is severely compromised.
The meaning of the law cannot be dissociated from the legitimate intentions of the legislator, expressed through transparent procedures and subject to democratic oversight.
In the case of INCORPORO SRL, we are witnessing a double betrayal of the principles of the rule of law. On one hand, national courts refuse to recognize the supremacy of European law and the binding nature of the provisions contained in the eIDAS Regulation. On the other hand, they distort the meaning of certain internal regulations, such as Law 265/2022, through abusive interpretations aimed at restricting market access for economic operators and creating unjustified administrative barriers in favor of certain interest groups.
While we have also had successful efforts against the parallel state, one of which was the promotion of RIL on February 22, 2024, against a similar situation where a professional body generated legitimacy in an area where it did not receive the state mandate to legislate.
This crisis of legitimacy in the jurisdictional act can only be overcome through a complete reset of the system, by rethinking the mechanisms for the appointment, promotion, and accountability of judges. Without a truly independent, competent, and dedicated judiciary to constitutional values, any legislative reform will remain a dead letter.
The refractory attitude of the Romanian Authority for Digitalization towards the complaint filed by the company demonstrates a blatant ignorance of the fundamental principles of EU law, such as the direct effect of European regulations and their supremacy over conflicting national norms.
Moreover, their delayed and evasive response to the legitimate requests of INCORPORO SRL raises serious questions about the capacity and genuine willingness of the Romanian authorities to comply with European standards regarding electronic governance and the digitalization of public services.
Beyond the grand statements and formal commitments made to external partners, the daily reality of interacting with the administration reveals a persistent mindset that is rigid, opaque, and completely resistant to change.
Without an authentic reform of the administrative culture, and without a deep understanding of the values and principles underlying European construction, any progress towards modernizing and enhancing public services will remain a mere aspiration. A paradigm shift is needed, moving from authoritarianism and excessive control to transparency, cooperation, and accountability in relations with citizens and the business environment.
Solvit Romania - a dysfunctional system
Paradoxically, the institution tasked with ensuring the respect of European citizens' rights in cross-border relations, SOLVIT Romania, has proven to be an obstacle to access to justice and effective remedies. The excessively formalistic and restrictive interpretation of the concept of "cross-border element" by SOLVIT officials demonstrates a profound misunderstanding of the realities of the single market and the dynamics of economic relations within the integrated European space.
"First and foremost, SOLVIT is not a national body but a cross-border initiative by the European Commission. The Romanian government is mandated to take measures to resolve issues internally for this not to be resolved through more drastic means, such as by a formal infringement procedure that may involve significant fines for Romania, especially since this is a systemic issue and affects EU interests." - SOLVIT Address
By refusing to examine the substance of the complaint from INCORPORO SRL and to engage constructively with the involved national authorities to remedy the reported violations, SOLVIT Romania has effectively denied its institutional role and purpose. Such an abdication of responsibilities undermines the very rationale of alternative dispute resolution mechanisms and compromises efforts to strengthen citizens' trust in the European project.
The dysfunctions observed in the operation of Romanian public authorities, whether we are talking about the courts, central administrative bodies, or European cooperation structures, share a common denominator: a lack of accountability and responsibility towards the citizen.
When state institutions treat individuals as mere objects of administrative action, like a file or a registration number, instead of recognizing them as the ultimate beneficiaries and the reason for their existence, it creates the conditions for alienation and distrust.
After an institutional blackmail, in which I threatened to notify European institutions, I received notification that the Ministry of Foreign Affairs will investigate the case.
Need for transparency
Opacity, arbitrariness, and lack of accountability seem to be more the rule than the exception in the institutional behavior of Romanian authorities. From courts that unjustifiably refuse to apply directly applicable European law, to administrative bodies that evade effective legal oversight, the entire system appears designed to discourage and obstruct citizens' efforts to defend their rights and legitimate interests.
In the face of this authoritarian drift, the only hope lies in sustained civic mobilization and constant pressure from European bodies.
Cases like ours must be brought to the forefront of public debate to raise public awareness and generate a wave of collective outrage. While it is currently easy for us to ignore these issues as they are pervasive in our lives, normalizing corruption is a strategy that will fail to protect our rights as citizens.
Independent mass media, non-governmental organizations, the academic environment, and opinion leaders have a moral duty to actively engage in denouncing abuses and promoting an authentic culture of the rule of law.
Equally, there is a need for a much firmer and more consistent involvement of European institutions in monitoring and sanctioning authoritarian deviations in member states. The European Commission, the European Parliament, and the Court of Justice of the European Union have legal and political leverage to compel national authorities to adhere to the founding values and principles of the Union.
Hesitations and compromises in upholding the rule of law only undermine the credibility of the entire European project and fuel euroscepticism.
Beyond the strictly legal dimension, our case carries a strong symbolic weight. It perfectly illustrates the deep fissures that continue to fragment Romanian society more than three decades after the fall of communism - fissures between citizens and authorities, between the letter of the law and its arbitrary application, between European aspirations and the authoritarian reflexes inherited from the past.
Overcoming these divides cannot be achieved merely by adopting norms and procedures, no matter how elaborate they may be. It requires, first and foremost, a change in mindset, a sincere commitment to the values of democracy, and a reconstruction of trust between individuals and institutions. Without this moral and civic foundation, any administrative or judicial reform will remain a mere façade.
History shows us that authoritarianism and abuse of power do not disappear on their own, merely through the force of inertia. They must be actively confronted, publicly denounced, and firmly sanctioned whenever they arise. To yield to them, to tolerate or ignore them means to encourage them and grant them legitimacy.
The consequences of this erosion of the rule of law extend far beyond the narrow confines of the specific interests of a commercial entity. They impact social cohesion itself, trust in institutions, and the citizens' desire for civic engagement.
When the law becomes an instrument of oppression rather than protection, when rights exist only on paper and not in everyday reality, the moral foundations of democracy are irreparably broken.
Therefore, the fight that INCORPORO SRL is engaged in is not just its own, but ours, all of ours. It is a fight for the rule of law, for the defense of the supremacy of European law, and for holding public authorities accountable.
This is ultimately a fight for the dignity of the citizen and for the vision of a European Romania, where arbitrariness and abuse have no place.
A fight for the dignity of the citizen
We are obligated to carry this fight to the end, to not capitulate in the face of bureaucratic pressure and institutional complicity. We have a duty to expose irregularities, to hold those responsible accountable, and to enforce compliance with European standards regarding good governance and the rule of law.
There is no middle ground, no possible compromise when we talk about the moral and legal foundations of our society. Any abdication, any hesitation, any concession in the face of abuse only distances us further from the European ideal we aspire to.
Only through sustained collective effort, with the active involvement of all responsible social actors, can we overcome the legacy of authoritarianism and arbitrariness in the exercise of public power. Only through genuine civic mobilization and real solidarity in defending the values of the rule of law can we build the European Romania we aspire to.
History will judge us by how we defend these values in times of crisis, by the courage with which we confront injustice and abuse, and by the determination with which we fight for the dignity and rights of every citizen. Our future will only be ours to the extent that we learn from the lessons of the past and do not repeat the mistakes that have brought us to this point.
Our future as a nation depends on this.