Categories
Uncategorized

DNA Competence in Abuse of Office Investigations: Criteria, Thresholds, and Case-Law (2025 Practitioner’s Guide)

The article maps the statutory rules and constitutional decisions that define DNA’s material competence in abuse of office investigations, including value thresholds and aggravated forms. It then reviews recent case-law and offers defence strategies when competence is borderline, contested between units or used to justify disproportionate procedural measures.

Why this matters

Getting material competence right at the outset (regular prosecution office vs. the National Anticorruption Directorate – DNA) is not mere housekeeping. Acts performed by a materially or status-wise incompetent prosecuting body can be struck with absolute nullity, with a “domino” effect on subsequent acts. For abuse of office (Article 297 Criminal Code), the question “Does DNA have competence?” must be answered immediately after the case is reported, following Article 58 CPC (competence check after referral) and constitutional case-law on the sanctions for breaches of competence rules. (Portal Legislativ)

1) The core legal texts that govern DNA competence

1.1. Government Emergency Ordinance (GEO) No. 43/2002 — Article 13(1)(a)–(b) & (3)

The central rule sits in Article 13 GEO 43/2002:

  • Art. 13(1)(a): DNA is competent for offences under Law No. 78/2000 if the material damage exceeds the RON equivalent of EUR 200,000. Separately, for the classic corruption offences (bribery, influence peddling, etc.), DNA is competent where the object of the offence exceeds EUR 10,000. (Portal Legislativ)
  • Art. 13(1)(b): Status-based competence for corruption offences committed by enumerated office-holders (members of Government, MPs, judges/prosecutors, prefects/sub-prefects, county council presidents, mayors of municipalities including the General Mayor of Bucharest and the Deputy Mayors of Bucharest, etc.). Heads of public authorities at town/commune level and their internal control staff are expressly excluded from the status list. (Portal Legislativ)
  • Art. 13(3): DNA is competent for certain Criminal Code offences — including abuse of office (Art. 297 CC) — when damage exceeds EUR 1,000,000, irrespective of Law 78/2000. (Portal Legislativ)

1.2. Article 297 Criminal Code — the 2023 amendment

In 2023, Article 297(1) CC was amended (Law No. 200/2023). Abuse of office now expressly requires a breach of a norm with the force of law (statute, Government ordinance, emergency ordinance, or another act that, at adoption, had force of law). Penalty range: 2–7 years plus prohibition to hold public office. This frames the base offence to which Law 78/2000 aggravations may add. (Portal Legislativ)

1.3. Article 13^2 of Law No. 78/2000 — “Undue benefit”

Where the official obtained an undue benefit for themselves or another, the special limits of the penalty increase by one third. This is an aggravation (assimilated to corruption), not a corruption offence per se. (Portal Legislativ)

2) The principled answer: when does abuse of office fall under DNA?

2.1. HCCJ RIL No. 26/2021: the EUR 10,000 “object” threshold does not apply to Art. 13^2 abuse

The High Court of Cassation and Justice, through RIL No. 26/15 Nov. 2021, resolved a conflict in practice: abuse of office as per Art. 13^2 of Law 78/2000, read with Art. 297 CC, does not attract DNA competence via the “EUR 10,000 object of corruption offence” limb in Art. 13(1)(a) GEO 43/2002. Abuse of office assimilated to corruption is not a corruption offence proper; therefore, DNA competence arises only via the EUR 200,000 material damage threshold (Art. 13(1)(a), first limb) or via the EUR 1,000,000 threshold in Art. 13(3). (Portal Legislativ)

Practical takeaway: In abuse cases you cannot rely on the EUR 10,000 “object” rule (reserved to bribery/influence peddling etc.). For DNA competence, look to damage > EUR 200,000 (where the abuse sits within Law 78/2000 through Art. 13^2) or damage > EUR 1,000,000 under Art. 13(3). (Portal Legislativ)

2.2. The situations in which DNA is (or becomes) competent for abuse

A. Damage > EUR 200,000 — where abuse of office is within Law 78/2000 via Art. 13^2 (i.e., undue benefit exists), competence may vest in DNA via Art. 13(1)(a), first limb. (Portal Legislativ)
B. Damage > EUR 1,000,000 — irrespective of Art. 13^2, Art. 13(3) assigns competence to DNA for Art. 297 CC when damage exceeds EUR 1,000,000. (Portal Legislativ)
C. Status (Art. 13(1)(b)) — the status route targets corruption offences proper. For abuse, (b) does not apply as such; however, when a case includes both a corruption offence (e.g., influence peddling) committed by a listed person and abuse of office, rules on joinder/prorogation may pull the file to DNA. Competence must still be verified and, as needed, declined under the CPC. (Portal Legislativ)

3) What exactly are “damage” and “undue benefit” for competence purposes?

  • “Damage” is the result element of abuse of office. For the EUR 200,000 (Art. 13(1)(a), first limb) and the EUR 1,000,000 (Art. 13(3)) thresholds, assessment focuses on the actual material loss. RIL 26/2021 underlines that, in abuse cases, you do not use the EUR 10,000 object criterion (that belongs to bribery/influence peddling). (Portal Legislativ)
  • “Undue benefit” under Art. 13^2 Law 78/2000 aggravates the penalty by one third but does not transform abuse into a corruption offence proper; consequently, it does not by itself trigger DNA competence via the EUR 10,000 object limb. (Portal Legislativ)

4) CCR Decision No. 405/2016 and the 2023 amendment — impact on abuse of office

The Constitutional Court (CCR), through Decision No. 405/2016, refined the legality/predictability requirements of abuse of office: intent is required; mere administrative irregularities are not enough; and the decision also addressed the relationship with Art. 13^2 Law 78/2000. Subsequently, Law No. 200/2023 clarified that the breach must concern a norm with force of law — a major filter in practice. These developments do not alter DNA competence criteria as such, but they shape qualification and evidence in abuse files. (Portal Legislativ)

5) Checking competence in practice: procedural steps and risks

  • Immediately after referral, the prosecution body must verify competence (Art. 58 CPC). If not competent, it must promptly decline to the competent office/structure (including DNA, or conversely from DNA to the regular prosecution office). In urgent cases, even a non-competent body performs non-deferrable acts and then forwards the case to the competent body (Art. 60 CPC). (Portal Legislativ)
  • Breaches of material or status-based competence at the investigation stage are sanctioned with absolute nullity, invocable ex officio and at any stage (preliminary chamber/trial), potentially contaminating subsequent acts (“chain nullity”). See Art. 281(1)(b^1) CPC and constitutional case-law construing the reach of absolute nullities. (Sintact)

6) Worked examples (typical practice patterns)

Note: the examples illustrate competence logic; convert amounts using the actual exchange rate and verify the quantified damage in each case.

  1. Abuse of office with undue benefit, damage EUR 150,000 (RON equivalent) — does not fall to DNA via the EUR 10,000 object limb (RIL 26/2021), and does not reach the EUR 200,000 damage threshold either → competence remains with the regular prosecution office, not DNA. (Portal Legislativ)
  2. Abuse of office with undue benefit, damage EUR 300,000 — DNA competence via Art. 13(1)(a), first limb (damage > EUR 200,000; the offence falls under Law 78/2000 by force of Art. 13^2). (Portal Legislativ)
  3. Abuse of office, damage EUR 1,050,000 — DNA competence via Art. 13(3), regardless of the presence/absence of Art. 13^2. (Portal Legislativ)
  4. Municipal mayor (a status listed in Art. 13(1)(b)) commits abuse of office, damage EUR 80,000 — the status limb targets corruption offences proper, not abuse. The abuse count does not go to DNA via (b); competence remains governed by the damage thresholds. If, however, the same case includes a corruption offence by the same office-holder (e.g., influence peddling), rules on joinder/prorogation may carry the case to DNA; apply CPC rules on verification/declination and urgent acts. (Portal Legislativ)
  5. Commune mayor, abuse of office, damage RON 500,000 (i.e., < EUR 200,000) — neither the status (expressly excluded for towns/communes under Art. 13(1)(b)) nor the damage thresholds lead to DNA → competence remains with the regular prosecution office. (Portal Legislativ)
  6. Mixed file (abuse + influence peddling at municipal level): if the seized prosecution body identifies DNA-competent corruption counts together with connected abuse counts, it applies Art. 58 CPC (verifies, declines); urgent acts remain valid (Art. 60 CPC). (Portal Legislativ)

7) FAQ

Q1. If only “undue benefit” is shown, with no material damage above EUR 200,000, does the case shift to DNA?
No. RIL 26/2021 clarifies that the EUR 10,000 “object of the offence” rule does not apply to Art. 13^2 abuse (assimilated corruption). For abuse, DNA competence may arise only at EUR 200,000 damage (Art. 13(1)(a), first limb) or EUR 1,000,000 (Art. 13(3)). (Portal Legislativ)

Q2. What if, during investigation, the quantified prejudice crosses EUR 200,000 / EUR 1,000,000?
Apply Art. 58 CPC — the body verifies and immediately declines to the competent office (DNA) or vice versa. Urgent acts remain valid; a breach of material competence risks absolute nullity. (Portal Legislativ)

Q3. Did the 2023 amendment change the definition of abuse so as to impact DNA competence?
Not directly. Law No. 200/2023 clarified the type of norm infringed (force of law), which filters cases at the merits stage. DNA competence remains tied to Art. 13 GEO 43/2002 and RIL 26/2021. (Portal Legislativ)

Q4. Why does “status” in Art. 13(1)(b) matter if we are speaking about abuse?
For abuse alone, (b) does not apply. It matters only if the same case includes corruption offences proper committed by a listed office-holder; then, joinder/prorogation rules may bring the connected abuse under DNA. (Portal Legislativ)

8) Defence playbook (abuse of office)

  1. Identify the breached norm (post-2023: it must have force of law) and the elements of typicality (intent, result). (Portal Legislativ)
  2. Quantify damage and verify thresholds:
        • EUR 200,000 (Art. 13(1)(a), if abuse falls under Law 78/2000 via Art. 13^2);
        • EUR 1,000,000 (Art. 13(3) — abuse, irrespective of Art. 13^2). (Portal Legislativ)
  3. Check for “classic” corruption offences (bribery/influence peddling) in the same file and the status of the actors (Art. 13(1)(b)). (Portal Legislativ)
  4. Note who seized the case and whether competence verification/declination was done (Arts. 58–60 CPC). (Portal Legislativ)
  5. Raise competence objections early: breaches of material/status competence attract absolute nullity; consequences can extend to downstream acts. (Sintact)

9) Conclusion

In abuse of office, DNA competence is not triggered by the mere existence of undue benefit (Art. 13^2), nor by the EUR 10,000 object limb (reserved to corruption offences proper). DNA competence does arise when:
(i) the abuse is within Law 78/2000 and damage exceeds EUR 200,000 (Art. 13(1)(a), first limb);
(ii) damage exceeds EUR 1,000,000 (Art. 13(3)); or
(iii) the file includes corruption offences committed by listed office-holders, allowing joinder/prorogation under the CPC. Early competence verification — and, where necessary, declination — is essential, not least to avoid absolute nullities. (Portal Legislativ)

Primary sources (for verification)

  • GEO No. 43/2002, Art. 13 — DNA competence thresholds/status. (Portal Legislativ)
  • HCCJ RIL No. 26/15 Nov. 2021 — abuse under Art. 13^2 is not a corruption offence proper; the EUR 10,000 rule is inapplicable; thresholds are EUR 200,000/EUR 1,000,000. (Portal Legislativ)
  • Law No. 78/2000, Art. 13^2 — undue benefit aggravation (+1/3). (Portal Legislativ)
  • Law No. 200/2023 amending Art. 297 CC — breach of a norm with force of law. (Portal Legislativ)
  • Criminal Procedure Code, Arts. 58 & 60 — competence verification; urgent acts by non-competent bodies. (Portal Legislativ)
  • CPC, Art. 281(1)(b^1) & CCR decisions on absolute nullity — material/status competence at investigation. (Sintact)