Costaș, Negru & Asociații obtained the final annulment of a report of finding and sanctioning contraventions by which a homeowners’ association was fined for non-compliance with legal provisions requiring the risk assessment and the provision of security services.
Specifically, following an inspection conducted at the homeowners’ association, the police authorities noted that the premises lacked a video surveillance system for access routes and other areas considered to be of high risk, as well as for areas where valuables are stored or exposed. Furthermore, no physical security risk assessment had been conducted for the purpose of implementing security measures. It was thus considered that the provisions of Article 2(3) of Government Decision (GD) no. 301/2012 had been breached.
The petitioner never disputed the facts as retained by the police authorities.
Our arguments, validated both by the ruling of the Arad District Court allowing the complaint and by the Arad Tribunal’s decision dismissing the appeal filed by the defendant authority, focused on the lack of legal capacity of the homeowners’ association to be the active subject of the contraventions provided under Article 3 point 1 and Article 3 point 2 of GD 301/2012.
In analyzing this matter, we started from the provisions of Article 2(1) of Law no. 333/2003, which explicitly and restrictively lists the entities that have the legal obligation to ensure security. According to the cited provision, the entities bound by this obligation are: ministries and other specialized bodies of the central and local public administration, autonomous administrations, national companies and corporations, national research and development institutes, companies governed by Law no. 31/1990 (republished, with subsequent amendments), regardless of the nature of their share capital, as well as other organizations that hold assets or valuables in any capacity.
By examining Article 2(1) of Law 333/2003, we note that homeowners’ associations are not among the entities explicitly and restrictively listed. Moreover, they cannot be included in the category of organizations holding goods or valuables in any capacity.
Homeowners’ associations are established and operate under Law no. 196/2018 on the establishment, organization, and functioning of homeowners’ associations and the administration of condominiums, which states under Article 16 that a homeowners’ association “is the legal form of organization and representation of the common interests of the owners of a condominium, with legal personality, non-profit, established under the provisions of this law, and aims to manage, operate, maintain, repair, rehabilitate, and modernize the common property, keep the building in good condition, and ensure the observance of rights and the assumption of obligations by all owners”.
Therefore, a homeowners’ association is merely an organizational and representational structure for condominium owners and, by its nature, does not own or hold any property or valuables.
These arguments were upheld by both courts that heard the case.
As an additional argument from another perspective, these alleged obligations to conduct a physical security risk assessment and to provide security for the premises also conflict with personal data processing regulations.
The decision to install a video surveillance system in a condominium must be made by the homeowners’ association, and the individual consent of all owners in the building is mandatory given the nature of the data and images stored by the surveillance system. In the case at hand, such unanimous consent was absent.
In this respect, Directive 95/46/EC (paragraph 14) of the European Parliament, correlated with the provisions of Convention no. 108/1981 of the Council of Europe, stipulated: “The use of techniques for capturing, handling, recording, storing, and communicating image-based data relating to individuals constitutes personal data processing operations”.
Installing a surveillance system in a commonly used building must comply both with the specific legislation governing homeowners’ associations and with special legislation, namely Law no. 333/2003.
The National Supervisory Authority for Personal Data Processing (ANSPDCP) issued Decision no. 52 of May 31, 2012, regarding the processing of personal data through video surveillance means, published in the Official Gazette no. 389 of June 11, 2012. Article 6 of the mentioned normative act provides: “The processing of personal data through the use of video surveillance systems shall be carried out only with the express and unequivocal consent of the data subject, except in the cases provided for in Article 5(2) of Law no. 677/2001”.
Since the right to private life is a fundamental, personal, and non-patrimonial right, the will of the majority of condominium owners cannot override it, making unanimous consent necessary.
The jurisdiction of homeowners’ associations is limited to strictly administrative matters concerning cost allocation and building maintenance, and the will of the majority cannot override individually guaranteed fundamental rights.
The legislation governing the establishment, organization, and operation of homeowners’ associations outlines the limits of competence and autonomy of the nonprofit legal entity called the homeowners’ association, whose legitimate purpose – according to Article 4(1) of Law no. 20/2007 – is strictly the administration and management of common property.
The entire legal argumentation is consistent in supporting the conclusion that the homeowners’ association is not the holder of the obligations provided for in Article 2(2) and Article 2(3) of GD 301/2012. Thus, it cannot be the active subject of the contraventions provided for in Article 3 point 1 and Article 3 point 2 of GD 301/2012. As such, the preparation of a risk assessment and the adoption of security measures such as installing video surveillance systems on access routes are optional and can only be implemented in compliance with the above-mentioned legal provisions.
The petitioner was represented before the courts by Diana Amelia Jehaliuc, also from the Arad Bar Association.
Costaș, Negru & Asociații is a civil law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and consultancy in several areas of practice through a team composed of 18 lawyers and consultants. Details regarding legal services and the composition of the team can be found on the website https://www.costas-negru.ro.All rights for the materials published on the company’s website and through social networks belong to Costaș, Negru &Asociații, their reproduction being permitted only for information purposes and with correct and complete citation of the source.
