Is the commercial register a "court" in the sense of Article 6 of the ECHR?
Opinions on the classification of registrars from the trade register within the definition of a tribunal according to the ECHR, based on the previous jurisprudence of the Court.

Brief introduction:
The ECHR (European Court of Human Rights) is an international judicial body established in 1959, headquartered in Strasbourg, France.
Its main role is to oversee the respect for fundamental human rights and freedoms, as provided in the European Convention on Human Rights, adopted in 1950 by the member states of the Council of Europe.
In the analysis of cases, CtEDO prefers a less formal and more pragmatic approachfocusing on the real effects of state actions on individual rights and freedoms, rather than on the strictly procedural or technical aspects of national legislation.
This perspective allows the Court to interpret the Convention in a dynamic and evolving manner, adapted to the realities and challenges of contemporary society.
Theoretical, The decisions of the European Court of Human Rights are binding for member states that have ratified the Convention, including Romania.In accordance with Article 46 of the Convention, the contracting states undertake to comply with the final judgments delivered by the Court in disputes to which they are parties.
This involves not only the payment of any equitable relief granted by the Court, and the adoption of individual and general measures necessary to remedy the identified violations and prevent similar violations in the future.
In practice, however, The implementation of the ECHR's decisions largely depends on the political will of the states and the existing mechanisms of oversight and pressure at the European level..
Although the Committee of Ministers of the Council of Europe monitors the execution of decisions, there are no direct and automatic sanctions for non-compliance, aside from political and diplomatic pressure.
Nevertheless, in most cases, states take measures to comply with the Court's decisions, albeit with delays or partial implementations, in order to avoid reputational damage and to demonstrate their commitment to the European system of human rights protection.
What is Article 6 of the ECHR?
Everyone has the right to a fair trial, conducted publicly and within a reasonable time, by an independent and impartial tribunal established by law, which will decide either on the violation of their civil rights and obligations or on the validity of any criminal charges against them.
The ruling must be pronounced publicly, but access to the courtroom may be denied to the press and the public for the entire duration of the trial or part of it in the interest of morality, public order, or national security in a democratic society, when the interests of minors or the protection of the private life of the parties involved necessitate it, or to the extent deemed absolutely necessary by the court when, in special circumstances, publicity would be likely to harm the interests of justice.
Article 6 of the European Convention on Human Rights (ECHR) guaranteesthe right to a fair trialThis is one of the most important and frequently cited articles of the Convention, covering both criminal and civil procedures.
Essentially, Article 6 stipulates that everyone has the right to have their case heard fairly, publicly, and within a reasonable time by an independent and impartial tribunal established by law.
Main guarantees provided by Article 6:
- The right to access a court:Every individual must have the opportunity to defend their rights before a court, whether it involves a dispute with another person or with the state.
- The right to a public trial:Except in special circumstances (e.g., protection of minors, privacy), court sessions must be public, ensuring transparency in the administration of justice.
- The right to a fair trial within a reasonable time frame:The processes should not be unnecessarily prolonged. A reasonable duration is assessed based on the complexity of the case, the behavior of the parties and authorities, as well as the stakes of the dispute.
- The right to an independent and impartial tribunal:Judges must be independent of the executive and legislative branches, as well as from the parties involved in the proceedings. They must also be impartial, meaning they should not have biases or personal interests in the case.
- Presumption of innocence (in criminal matters):Any person accused of a crime is presumed innocent until their guilt is legally established. The burden of proof lies with the prosecution.
- The right to defense (in criminal matters):Every accused person has the right to be informed, as soon as possible, in a language they understand, about the nature and cause of the charges against them. They also have the right to have the time and facilities necessary for preparing their defense, to defend themselves or to be assisted by a lawyer, to question the prosecution witnesses, and to have the defense witnesses heard under the same conditions as the prosecution witnesses, as well as to be assisted free of charge by an interpreter if they do not understand or speak the language used at the hearing.
Important to remember:
- Article 6 applies to both procedurespenaltyas well as thosecivil(including administrative, disciplinary, etc. disputes).
- The guarantees provided by Article 6 areinterdependentand must be interpreted in their entirety.
- The European Court of Human Rights has developed awidespread case lawin the application of Article 6, providing numerous clarifications and interpretations of these guarantees.
- The CtEDO may find that certain measures clearly violate Article 6, while simultaneously determining that others are compliant, even if they seemingly contradict Article 6. The reason is that some measures are implemented to balance certain rights and achieve an optimal equilibrium among all rights, in the context of the case.
Does Article 6 of the ECHR apply to the registration procedures in the trade register?
We cannot deny that there is a discussion regarding the practical application of Article 6 of the ECHR in relation to the commercial register, as the topic is, on one hand, complex, and on the other hand, pertains to civil rather than criminal matters. The procedure lies at the boundary between a strictly administrative process and one that involves the exercise (or limitation of the exercise) of certain civil rights - and the refusal or failure to resolve has the de facto effect of limiting the exercise of these rights.
The preventive purpose applies, for example, in the case of refusal to register because the activity would be regulated; the person would not have the right to establish a company without a prior ruling from a court, etc.
The "civil" nature of the rights and obligations involved
The procedure for registration in the trade register, although governed by administrative law norms, has direct implications for the civil rights and obligations of the applicants.
The registration of a company, the modification of its constitutive documents, or its deregistration directly affects the property rights of the associates/shareholders, as well as their ability to conduct economic activities.
Thus, it can be argued that the registration procedure concerns a "challenge" regarding "civil rights and obligations" in the sense of Article 6 of the ECHR. (see, mutatis mutandis, KΓΆnig v. Germany, 1978; Benthem v. Netherlands, 1985).
The decision-making character of the procedure
The registrars within the trade registry offices have the authority to examine registration applications, verify compliance with legal requirements, and issue executive orders to accept or reject the applications.
This decision-making power, which directly affects the rights and obligations of applicants, gives the procedure a jurisdictional character, bringing it closer to the scope of Article 6 of the ECHR.
From the fact that the registrar conducts not only a formal analysis but also a subjective assessment of the legality of certain activities, the legal validity of a company's articles of association/contract (which are genuine civil acts between the parties), to the fact that they make decisions on these matters through rulings, we cannot deny the existence of a decisional character.
The enforceable nature of the registrar's decisions
The registrar's decisions are enforceable, meaning they can be implemented without prior validation from a court. This highlights the decisive nature of the procedure and the necessity of upholding the guarantees of a fair process.
Challenging in court does not suspend their execution, and furthermore, in the case of reviewing the decisions of registrars, there is no appeal as a means of contestation, emphasizing even more that the ONRC acts as a quasi-judicial body in the sense of the convention.
The history of the institution and the transition from the delegated judge to registrars
It should also be noted that a transition has occurred from a delegated judge to registrars, which raises questions about the registrar's role in relation to the application of Article 6 of the ECHR.
The previous procedure was not contentious, but it was clearly a judicial procedure, governed by the civil procedure code and the former commercial register law.
The Directive (EU) 2019/1.151 has slightly changed the operation of the trade register, seemingly aiming to transform the procedure into a purely administrative one.
However, the Romanian legislator has not completely abandoned the previous procedure, but has only adapted it, without eliminating many of the prior checks, which are now simply delegated to a different decision-maker - the registrar.
Since the CtEDO analyses are never merely formalistic, an analysis would likely determine that we are still discussing a procedure that falls under Article 6 of the ECHR.
Case law of the European Court of Human Rights
The European Court of Human Rights has repeatedly stated that Article 6 of the ECHR applies to administrative procedures that have a direct and significant impact on the civil rights and obligations of individuals (see, mutatis mutandis, Ringeisen v. Austria, 1971; Sporrong and LΓΆnnroth v. Sweden, 1982).
Registration in the trade register is a de facto necessary procedure for conducting independent business activities. While the civil code provides for other formalities, such as entrepreneurship, it is rarely utilized and actively discouraged by state institutions.
We can thus say that the rights "judged" by them are of certain importance, making the case law of the European Court of Human Rights likely applicable.
Several arguments against the applicability of Article 6 of the ECHR
First of all, the registration procedure in the trade register is governed by administrative law norms and takes place before an administrative authority, not a regular court. Although we consider this argument weak, it must be brought up for discussion.
Secondly, there is a lack of traditional oral and contradictory debate, which has been replaced by a public hearing that allows for it. During the hearing, the debate takes place, and the documents submitted to the file serve as the place for memoranda and conclusions.
However, we cannot argue that this difference is of a nature to change the classification, since in common law, the institution of the small claims request (SCR) allows for adjudication without physical presence and oral debates. Very clear parallels can be observed between the SCR institution and the procedure for registration in the commercial register.
Ultimately, the registrar's decisions can be challenged in court, which could be seen as a sufficient guarantee of the right to a fair trial.
However, this argument is weakened by the enforceable nature of the registrars' solutions, which make the registrars' decisions immediately applicable. Furthermore, the legal text implies that the legislator (both European and Romanian) intended to create a quasi-court through which the registrar becomes a genuine adjudicator of civil rights.
Is the registrar a "judge" and the registration institution a "court" in the sense of the ECHR?
In our opinion, the question encounters a nuanced answer - yes in the sense of convention, even though in terms of international law, the institution is purely administrative.
From the fact that they have protective measures similar to those of magistrates, which prohibit their influence in the decision-making process, to the fact that they have replaced the former delegated judge, and to the fact that they adjudicate the enforcement of subjective rights (the right to register a company after its establishment), it is almost evident that registrars can be defined as a "court".
However, we are discussing a procedure distinct from the general one, which simplifies and somewhat limits the depth of examination that registrars have regarding registration in the commercial register.
Thus, we cannot argue that in domestic law we have a judicial procedure, but the administrative procedure must benefit from the measures provided by the ECHR to ensure that the "process" is fair. Many of these measures are already present in the legal text.
What does this imply for registrars and the National Trade Register Office (ONRC)?
First of allONRC is required to provide registrars with the necessary framework to make impartial and independent decisions from the executive power - meaning registrars are subject only to the law (this includes normative acts).
However, they are not subject to circulars and other internal regulations that cannot substitute for or clarify the interpretation of a law or another normative act with the force of law.
Normative administrative acts, let us remember, cannot clarify or add to the law, but only operate to clarify certain aspects where the law grants this power to the administrative authority.
The actions described in the previous paragraph are too common in Romania; they are illegal acts, and if they lead to a violation of the law or its "evasion" in a way that harms someone, they can even result in criminal liability. Therefore, they are neither permitted nor recommended.
Therefore, registrars cannot be compelled to decide in a certain way, but they can be sanctioned at most if it is proven that they violate the law, in a manner similar to the functioning of a judicial oversight body (e.g., the Judicial Inspection), ideally without taking the national example of this body. However, the ONRC must implement internal control mechanisms to verify how registrars adhere to procedural guarantees in the exercise of their duties, a matter already covered at the institutional level.
ONRC must ensure that internal procedures and operating regulations comply with the guarantees provided by Article 6 of the ECHR, adapted to the specifics of the registration procedure in the trade register.
The institution is obligated to ensure the appropriate professional training of registrars, including regarding the requirements of Article 6 of the ECHR and the relevant case law of the European Court of Human Rights.Secondly, Registrars are required to substantiate their requests with relevant legal grounds, as well as an explanation of how these apply to the analyzed facts and legal situation. This aspect, although already present, is currently vague and does not genuinely comply with these obligations for many of the decisions made.
In the third row,The registrars must process registration applications within a reasonable timeframe, avoiding unjustified delays. This aspect is already stipulated in the law (both European and national level).
In the fourth rowIt is very important that applicants have the opportunity to effectively present their case, submit documents, and make observations. Even though the procedure is primarily written, registrars should allow, in justified cases, the hearing of applicants or their representatives.
Applicants must have access to the relevant documents in the file and the opportunity to respond to any objections or arguments raised by other interested parties or the registrar.
Therefore, decisions made based on internal protocols, which cannot be subject to contradiction, are prohibited.
FinallyONRC must ensure the transparency of the registration process, including by publishing the decisions of registrars and other relevant documents, to the extent that this is compatible with the protection of personal data and other legitimate interests.
This aspect is already covered by the publication in the Official Gazette and the Electronic Bulletin of the Trade Register.
Conclusion?
In conclusion, it should be emphasized that the ONRC stands at the intersection of a public institution and a court. The ONRC is essentially obligated to provide registrars with all the necessary tools to carry out their activities. there is no traditional subordinate relationship between the director of ONRC and the registrars, a collaboration and control agreement, similar to the one held by CSM.
The way this aspect applies to other international treaties and national law is debatable, as states generally have the right to establish their own legal mechanisms, provided they do not in any way affect the fulfillment of obligations assumed through conventions, treaties, etc.