Nemo censetur ignorare legem in the Age of AI

Can the State presume that you know the law while forbidding you to find out how it applies to you?

A constitutional, Convention and EU law analysis of legal advice under the new definition in the draft law amending Romanian Law No. 51/1995 on the organisation and practice of the legal profession

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Note on the text under analysis. The text analysed is a draft law (bill), not legislation in force: the legislative proposal amending and supplementing Law No. 51/1995 and the Civil Code, registered with the Romanian Senate on 14 October 2026, with the initiator requesting that it be debated under the urgent procedure (bill record on the Romanian Senate website). This analysis concerns the text of the legislative proposal as published on the Senate website (full text, PDF). The bill is only at the start of the parliamentary process: until it is adopted, promulgated and published in the Official Gazette of Romania, if at all, the text may still change (through parliamentary amendments, reconsideration or constitutional review).

Context for international readers. This article examines a Romanian bill. Romania has been a Member State of the European Union since 2007 and a party to the European Convention on Human Rights since 1994, which is why EU law and the Strasbourg case-law are discussed alongside Romanian constitutional law.

• Law No. 51/1995 is the Romanian statute governing the legal profession (avocați, broadly equivalent to attorneys, barristers and solicitors). It reserves certain activities, including legal advice, to members of the Bar, save where the law confers them on other legal professions (such as notaries or in-house legal advisers).
• UNBR (Uniunea Națională a Barourilor din România) is the National Association of Romanian Bars, the statutory professional body to which all practising lawyers belong.
• Where the bill stands: it is a draft law and is not in force. It was registered with the Senate on 14 October 2026, with the initiator requesting the urgent procedure, and has yet to go through the parliamentary process. Its progress can be followed on the bill record on the Romanian Senate website. If adopted, it would enter into force only after publication in the Official Gazette of Romania (Monitorul Oficial).
• Citation conventions: a superscript number (Article 3¹, Article 25¹) denotes an article inserted later between existing ones (Article 3¹ follows Article 3). The Romanian alineat is rendered here as “paragraph”, e.g. Article 3(2).
• Why it matters beyond Romania: the new rules would apply to any online service giving legal information to users in Romania, including providers established in other Member States (see Sections 7.4 and 7.5).

In short

The maxim nemo censetur ignorare legem is a duty that the Romanian State imposes on its citizens. But it is also a promise that the Romanian State makes to them: that the law will be accessible to them. Knowing the law does not mean reciting an article. It means knowing what you may do, what you risk and how to defend yourself. In other words, it inevitably means knowing how the law applies to your own situation.

The new definition of legal advice in the new Romanian draft law amending Law No. 51/1995 on the organisation and practice of the legal profession leaves intact the presumption that everyone knows the law. Yet it restricts precisely the modern means by which most people could actually come to know it. In so doing, it directly affects the right to information and, through it, the right of defence of those who have no access to a lawyer. And EU law required that, before drawing such a line, the Romanian legislature demonstrate that no gentler path was available.

The risks of legal AI are real. The proportionate response to them, however, is transparency, not silence. A State that presumes that all its citizens know the law cannot turn the explanation of that law into a privilege.

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1. What the new draft law actually provides

The new draft law nowhere mentions the words “artificial intelligence”. Its effect on online legal platforms stems instead from the combined operation of three provisions.

Article 3¹ – the definition of legal advice

“(1) [...] legal advice consists of a personalised service aimed at providing an opinion or advice, based on the application of legal rules, in response to a request concerning a specific legal situation, such that, on the basis of the information received and following a decision-making process, the client determines his or her future course of action for resolving that legal situation.

(2) The provision of general information about the law shall not constitute legal advice, nor shall research, documentation or publishing activities or the provision of standardised legal tools, insofar as they do not involve the legal analysis of a specific situation.

(3) An activity shall be characterised as legal advice in accordance with paragraph (1), irrespective of the means or technology used to provide it.”

Read together with Article 3(2), as proposed to be amended, which reserves the activities listed in Article 3(1) exclusively to lawyers (avocați), save for those expressly conferred by law on other legal professions, the result is as follows. Platforms may state what the law provides. They may not state how the law applies to the user’s specific situation.

Article 25¹ – the enforcement mechanism. The National Association of Romanian Bars (UNBR) may apply to the court for an order requiring the activity to cease and for orders addressed to providers of intermediary services under Article 9 of Regulation (EU) 2022/2065 (the Digital Services Act, “DSA”). It may also seek orders requiring the operator to be identified, under Article 10 DSA. The first hearing must be listed within no more than 5 days, the judgment is immediately enforceable, and any appeal must be lodged within 5 days.

Article 59(7)–(8) – the criminal sanction. The use of any designation liable to mislead the public as to the status of lawyer, including by means of an internet domain name, website, application or online platform, is punishable by imprisonment of 6 months to 3 years or by a fine.

The question this article addresses is a simple one: is this architecture compatible with the principle that citizens are bound to know the law?

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2. Nemo censetur ignorare legem: a fiction that binds, first and foremost, the State

The maxim that “ignorance of the law is no excuse” is not a statement of fact. It is a legal fiction. Nobody actually knows the more than 100,000 normative acts adopted in Romania since 1989, together with their successive amendments. Not even lawyers know them.

The fiction is legitimate only because the State, in return, assumes a set of obligations:

• publication of the law (Article 78 of the Constitution: the law is published in the Official Gazette of Romania and enters into force 3 days after publication or on a later date specified in its text);
• quality of the law: clarity, precision and foreseeability (Article 1(5) of the Constitution, as consistently construed by the Constitutional Court);
• accessibility of the law, that is, a genuine opportunity for those to whom it is addressed to understand it and to adjust their conduct accordingly.

The relationship is therefore synallagmatic. The State may presume that you know the law because it has given you the means of knowing it. Where the State curtails the very means of knowing it, the fiction loses its foundation.

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3. What does it mean for a citizen to “know the law”?

Two conceptions are possible.

3.1. The formal conception: knowing the text

On this view, knowing the law means having access to the normative text. This is the conception on which Article 3¹(2) implicitly rests. You may read the Civil Code and receive “general information”, but you may not be helped to find out what the text means for you.

3.2. The functional conception: knowing what you may and may not do

Knowledge of the law is the corollary of the duty not to break the law. And the law is never broken in the abstract; it is always broken through specific conduct, in a specific situation. To know the law therefore means being able to foresee the legal consequences of one’s own conduct.

The functional conception is the correct one, for at least four reasons.

(a) This is how criminal liability is structured. Article 30(5) of the Romanian Criminal Code provides that an act is not imputable where it was committed in ignorance or mistaken knowledge of its unlawful character, owing to a circumstance that could not have been avoided in any way. The criminal legislature does not ask whether the offender knew the text. It asks whether he knew that his specific act was unlawful. In Romanian criminal law, knowledge of the law is knowledge of how it applies to one’s own case.

(b) This is how the European Court of Human Rights understands it. As early as The Sunday Times v. the United Kingdom (no. 1) (26 April 1979, § 49), the Court held that a norm cannot be regarded as “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct. The citizen must be able, if need be with appropriate advice, to foresee the consequences which a given action may entail. The formula has been consistently reaffirmed in the Court’s subsequent case-law. The test is the foreseeability of the consequences of a particular action. The Court expressly acknowledges that, for this purpose, the citizen may need assistance. The foreseeability of the law thus admittedly depends on access to an explanation of how it applies.

(c) This is how the Romanian State itself understands it in other fields. In tax matters, the tax administration is under a duty to guide taxpayers in the application of tax legislation and may issue advance tax rulings on a taxpayer’s specific case. The State thereby recognises that, in a technical field, knowing the law means knowing how it applies to your situation.

(d) This is how real life works. A citizen does not need to know what Article 1351 of the Civil Code says. He needs to know whether he may refuse to pay an invoice, how long he has to challenge a fine, and whether his landlord can evict him. “General” information without application is, for a non-lawyer, often unusable.

3.3. The paradox of the new draft law

Article 3¹ creates a situation that is difficult to defend as a matter of logic:

In other words, the State presumes functional knowledge of the law but freely permits only formal knowledge. The gap between the two becomes a reserved, fee-paying service.

The result is paradoxical. The fiction that everyone knows the law becomes compatible only with the reality that only those who can afford a lawyer can actually know it.

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4. Interference with the right of defence through the suppression of the right to information

This is, in my view, the strongest constitutional argument.

4.1. The right of defence is not merely the right to a lawyer

Article 24 of the Romanian Constitution has two distinct paragraphs:

• paragraph (1): “The right of defence is guaranteed.”
• paragraph (2): “Throughout the trial, the parties shall have the right to be assisted by a lawyer, either chosen or appointed ex officio.”

Paragraph (2) is an additional safeguard, not a definition of the right. The right of defence under paragraph (1) is broader. It encompasses a person’s right to defend himself in person, to understand his situation, to formulate his own positions and to decide whether and how to act. Legal representation is a right of the party, not a precondition for the exercise of the defence.

The Constitutional Court of Romania confirmed this reasoning in Decision No. 462 of 17 September 2014 (Official Gazette No. 775 of 24 October 2014). The Court held unconstitutional the second sentence of Article 13(2), Article 83(3) and Article 486(3) of the Code of Civil Procedure, insofar as they made it mandatory for a second appeal on points of law (recurs) to be drafted and argued by a lawyer. The ruling was extended to legal persons by Decision No. 485 of 23 June 2015 (Official Gazette No. 539 of 20 July 2015). The Court applied its earlier reasoning mutatis mutandis, holding that in their case too the right to a contractual representative had been turned into an obligation. Whereas Decision No. 462/2014 had been adopted by a majority, after an initial sitting at which no majority could be formed, Decision No. 485/2015 was delivered unanimously. The case-law is therefore settled.

The Court’s reasoning is remarkably close to the issue at hand:

• A right cannot be converted into an obligation. The Court held that compulsory legal representation amounted to “the conversion of this right into an obligation, which affects the very substance of the right of defence as configured by the Constitution” (§ 52). The legislature, the Court added, cannot give the right of defence connotations at odds with its nature as a guarantee of a fair trial.
• A legitimate aim does not save a disproportionate measure. The Court accepted that the aim pursued – improving the quality of the administration of justice and preventing abusive or ill-formed applications – was legitimate. It even accepted that the measure was suitable and necessary (§§ 31–33). It nonetheless struck the measure down at the final stage of the test, that of fair balance. The public benefit was “insignificant in relation to the degree of interference with the individual’s fundamental rights and freedoms” (§ 50). This is precisely the structure of the argument set out in Section 5.
• State legal aid is not a sufficient remedy. The Court found that legal aid concerns only a narrow category of citizens and “is not an instrument capable of overcoming and correcting de facto inequalities” (§ 41). Where the State imposes mandatory representation, it must provide an effective mechanism making it accessible to all (§ 43, citing Airey v. Ireland).
• The risk of illusory rights. The legislative solution created, in the Court’s words, “the preconditions for transforming free access to justice and the right of defence into illusory rights” (§ 54).

One detail is worth noting: in those proceedings, UNBR submitted an amicus curiae opinion in support of retaining mandatory legal representation (§ 19). The Court did not accept it.

The analogy admittedly has a limit, which must be acknowledged: Decision No. 462/2014 concerned a judicial remedy, whereas the new draft law concerns out-of-court information. That difference, however, strengthens the argument rather than weakening it. If the State cannot impose mandatory legal representation even before the supreme court, where formalism and technicality are at their highest, still less can it make the mere understanding of one’s own legal situation conditional on retaining a lawyer. Information precedes any litigation and often determines whether there will be any litigation at all.

At Convention level, Article 6 § 3 (c) of the European Convention on Human Rights guarantees the right of a person charged with a criminal offence to defend himself in person or through legal assistance of his own choosing. Self-representation is a recognised form of the right of defence. Self-representation without access to information, however, is an empty shell.

4.2. Legal information is a precondition of any defence

A defence does not begin at the first court hearing. It begins the moment a person learns that he has a legal problem. The most important decisions are often taken before any proceedings are brought, within very short time limits:

• an administrative offence report (proces-verbal de contravenție) must be challenged within 15 days of service (Article 31 of Government Ordinance No. 2/2001);
• an objection to enforcement (contestație la executare) must, as a rule, be lodged within 15 days (Article 715 of the Code of Civil Procedure);
• the statement of defence must be filed within the statutory time limit, failing which the right to file it is forfeited;
• the response to a formal notice or demand may, in practice, decide the outcome of a dispute.

Consider a concrete example. A citizen receives an administrative offence report late on a Friday evening. His real question is not “what does Article 31 of Government Ordinance No. 2/2001 provide?”. His question is: “Can I challenge this fine, by when, and where?” Answering that question requires applying the rule to his specific situation. Under Article 3¹(1), such an answer, if given by a platform, falls within the scope of reserved legal advice.

The consequence is that a tool which could help him avoid missing a time limit that would extinguish his right – free of charge, at 11 p.m. – becomes unlawful. The alternative, a lawyer who is available, affordable and paid, does not exist for a large part of the population.

The Constitutional Court has already censured precisely this mechanism. In Decision No. 462/2014 it held that, within an appeal period of only 15 days, the obligation to find a lawyer became “an unreasonable requirement imposed on the citizen”. Within that period, the person had either to find the financial means or to complete the procedure for obtaining state legal aid (§ 47). The time limits for challenges in everyday life are just as short. The Court’s reasoning applies to them in full.

4.3. The right to information: a fundamental right in the digital society

The restriction does not merely affect a commercial service. It affects a fundamental right of the recipient: the right to receive information.

• Article 31 of the Romanian Constitution enshrines the right to information. The content of the law is, par excellence, information of public interest;
• Article 30 of the Constitution guarantees freedom of expression, which includes the communication of opinions, including legal opinions;
• Article 10 of the Convention protects both the freedom to impart and the freedom to receive information. In Magyar Helsinki Bizottság v. Hungary ([GC], 2016), the Court recognised that Article 10 may, under certain conditions, include a right of access to information;
• Article 11 of the Charter of Fundamental Rights of the European Union protects the freedom to receive and impart information without interference by public authority.

In a society in which information is predominantly obtained online, access to digital legal information tools is no longer a luxury. It is the contemporary form of access to the law. The European Union has already recognised, in criminal matters, that information is a component of the defence: Directive 2012/13/EU on the right to information in criminal proceedings treats informing persons of their rights and of their situation as a condition of a fair trial.

4.4. The irony of the law

The same draft law introduces, in Article 3(2²), the rule that the presence of a lawyer “in any judicial or administrative proceedings [...] may not be restricted”. The draft thus strengthens the right of defence through a lawyer while, at the same time, weakening the right of defence of the person himself or herself, who has no lawyer or cannot afford one.

The right of defence, however, belongs to the litigant, not to the profession. It cannot be reinforced for those who pay for assistance and hollowed out for everyone else.

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5. The proportionality test (Article 53 of the Constitution)

A restriction on the exercise of fundamental rights is permissible only if it is prescribed by law, pursues a legitimate aim, is necessary in a democratic society, is proportionate to the situation that gave rise to it, is applied without discrimination and does not impair the existence of the right.

5.1. Legitimate aim – yes

Protecting consumers and litigants against erroneous legal information is a legitimate aim. The risks are real: AI models may “hallucinate” non-existent statutory provisions and judgments, carry no professional indemnity insurance, are not bound by professional secrecy and are not subject to disciplinary liability.

5.2. Necessity and proportionality – doubtful

The decisive question is whether a prohibition is the only way of achieving the aim, or whether less restrictive measures are available. They are, and they are obvious:

1. Mandatory transparency: a notice warning users that they are interacting with an AI system, that it is not a lawyer, that its answers may contain errors and that consulting a lawyer is recommended. This is precisely the approach taken in Article 50 of Regulation (EU) 2024/1689 (the AI Act).
2. A prohibition on holding oneself out as a lawyer, already covered by the new Article 59(7)–(8) of the draft.
3. Quality standards: verifiable citation of sources and disclosure of the date up to which the legislation is current.
4. Liability for deceptive commercial practices, on the model of the US DoNotPay case. There, the Federal Trade Commission did not ban the service; it sanctioned the false claims that it was equivalent to a lawyer.
5. Referral to a lawyer in complex or high-stakes situations (criminal matters, enforcement proceedings, imminent time limits that would extinguish rights).

The Constitutional Court has stated the standard unequivocally: the legislature must be guided by the principle est modus in rebus, and “any limitation on free access to justice, however minor, must be duly justified”, by examining whether the disadvantages it creates outweigh its possible advantages (Decision No. 462/2014, § 26).

Where the aim can be achieved by informing the user, prohibiting the information becomes disproportionate. A restriction that suppresses information in order to protect people from incorrect information inverts the relationship between means and end.

Whether these alternatives were even weighed is not merely a matter of constitutional doctrine. EU law turns it into a positive procedural obligation on the legislature (Section 7.3).

5.3. Impairment of the essence of the right

For people without means, the cumulative effect is not a mere limitation but the practical disappearance of access to an explanation of the law applicable to their own situation. State legal aid essentially covers court proceedings, not everyday preliminary information. Even there, the Constitutional Court found that it concerns a narrow category of citizens and does not apply “to the overwhelming majority of citizens” (Decision No. 462/2014, § 41). This also raises an issue of equality (Article 16): functional knowledge of the law becomes dependent on wealth.

5.4. Quality of the law (Article 1(5))

The dividing criterion is vague: “specific legal situation”, “decision-making process”, “legal analysis of a specific situation”. In a conversational system, the line between a general explanation and an applied one is fluid. A question such as “how long do I have to challenge a fine?” can be read either way.

The vagueness is all the more serious because the text is coupled with an expedited cease-and-desist procedure (5 days) and with criminal offences defined by reference to “context” and “manner of presentation”. The foreseeable result is a chilling effect. Providers will avoid any useful explanation, not merely legal advice proper.

The definition also raises further unanswered questions:

• Does it cover university law clinics, where students answer questions from members of the public?
• Does it cover consumer associations and NGOs that provide free guidance to vulnerable people?
• Does it cover trade unions advising their members?
• Does it cover press columns of the “readers ask” variety?

A text that does not allow these questions to be answered with any degree of foreseeability does not meet the standard of quality of the law.

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6. Convention standards

Article 10 – freedom of expression and information. The Court has held that Article 10 also applies to commercial speech (markt intern Verlag GmbH and Klaus Beermann v. Germany, 1989; Casado Coca v. Spain, 1994). The most relevant precedent remains Open Door and Dublin Well Woman v. Ireland (1992). The Court found a violation of Article 10 on account of a general and perpetual injunction against providing people with information about their options, applied irrespective of the individual circumstances of the recipients. The restriction was disproportionate precisely because of its absolute nature.

Blocking of online access. In Ahmet Yıldırım v. Turkey (2012) and Vladimir Kharitonov v. Russia (2020), the Court found violations of Article 10 resulting from blocking measures that lacked a strict legal framework, any proportionality assessment and safeguards against collateral effects on legitimate content. Article 25¹ allows orders against intermediaries following a 5-day procedure, at the request of a directly interested professional body. It must be applied with great care so as not to stray into the same territory.

Article 6 – effective access to justice. In Airey v. Ireland (1979), the Court held that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. A right of access to a court that is not accompanied by a genuine opportunity to understand what rights one has and how to assert them risks becoming illusory.

The principle of legality. The Sunday Times standard described above directly links the legitimacy of a rule to the citizen’s ability to foresee the consequences of his conduct, “if need be with appropriate advice”.

Council of Europe standards on legal advice. In Resolution (78) 8 on legal aid and advice, the Committee of Ministers recommended that States ensure access to legal advice on all questions that may affect a person’s rights, free of charge or against a contribution commensurate with that person’s means. It also recommended that the necessary legislative information be made available to bodies providing advice. The European vision is thus one of multiplying the channels of legal advice, not narrowing them.

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7. European Union law

While the constitutional and Convention arguments concern the substance of the restriction, EU law adds a different layer that is, in practice, harder to circumvent. It consists of procedural obligations with which the national legislature must comply before adopting such a rule. Failure to comply can be sanctioned directly by the national court.

7.1. Freedom to provide services (Article 56 TFEU)

In Säger v Dennemeyer (C-76/90, 1991), the Court of Justice examined German legislation that reserved to qualified professionals a simple legal service: monitoring patent renewal deadlines. It held the restriction disproportionate, since the service did not call for specific professional aptitudes and its recipients did not need such protection. In fairness, one caveat is in order: the service at issue did not involve legal advice. The precedent therefore does not, of itself, settle the question of advice on specific cases. It does, however, establish the method: reserving an activity to a profession is justified only insofar as the nature of the activity genuinely requires it.

That line was confirmed in X-Steuerberatungsgesellschaft (C-342/14, 2015), concerning professional tax assistance, an activity reserved in Germany. The Court held that a Member State may not restrict the cross-border provision of such a service by a company established in another Member State, where the activity is unregulated, without having due regard to the provider’s actual qualifications.

For the sake of balance, Cipolla (Joined Cases C-94/04 and C-202/04, 2006), concerning minimum fees for Italian lawyers, must also be mentioned. There, the Court accepted that consumer protection and the sound administration of justice may justify restrictions in the field of legal services. It nevertheless left it to the national court to scrutinise their necessity and proportionality strictly. A legitimate aim, therefore, does not dispense with proof of proportionality.

7.2. The Services Directive (2006/123/EC): a necessary clarification

The Services Directive applies, as a rule, to legal advisory services as well. The exclusion in Article 2(2)(l) covers only services provided by notaries and bailiffs appointed by an official act of government, not legal advisory activity.

It would, however, be a mistake to present it as a decisive argument. Article 17(6) expressly exempts from the freedom to provide services under Article 16 requirements in the Member State where the service is provided which reserve an activity to a particular profession. That is exactly the type of measure introduced by Article 3¹ read together with Article 3(2). The strict test in Article 16 is therefore not applicable. The analysis reverts to Article 56 TFEU and, above all, to the specific instrument adopted by the Union precisely for such reservations: Directive (EU) 2018/958.

7.3. The decisive argument: the mandatory proportionality test (Directive (EU) 2018/958 and Law No. 245/2020)

Directive (EU) 2018/958 on a proportionality test before adoption of new regulation of professions was transposed in Romania by Law No. 245/2020. It requires Member States, before introducing new legislative provisions restricting access to, or the pursuit of, regulated professions, or amending existing ones, to carry out a proportionality assessment that is:

• ex ante, that is, prior to adoption, not an after-the-fact justification;
• objective and independent;
• documented, accompanied by explanations sufficiently detailed to allow compliance with the principle of proportionality to be assessed;
• public, with information to and consultation of stakeholders, including those outside the profession.

Among the elements the assessment must expressly examine are reserved activities (defined in the instrument itself as a form of regulation of a profession) and the possibility of achieving the public interest objective by less restrictive means. The examples are precisely the transparency and consumer protection rules discussed in Section 5.2.

The new draft law does exactly what triggers this obligation:

• Article 3¹ effectively broadens the scope of the reserved activity by characterising, on a technology-neutral basis, any application of a legal rule to a specific situation as legal advice;
• Article 3(1) adds numerous new activities to the scope of the profession: debt collection, corporate filings, registrations in the National Register of Movable Property Publicity (RNPM) and escrow;
• Article 3(2) narrows the exceptions, admitting only the competences of other legal professions;
• Article 1241(2) of the Civil Code assigns to lawyers the drafting of private instruments (documents under private signature) required by law.

If the legislative process was not accompanied by the assessment required by Law No. 245/2020, this constitutes a direct breach of EU law, not a mere flaw in legislative drafting. One nuance is required: in domestic law, a later statute may formally derogate from an earlier statute of the same rank. The force of the argument therefore derives from EU law (Article 148 of the Constitution). It may be asserted:

• before the ordinary courts, which have jurisdiction to find a conflict between national law and EU law and to disapply the national rule, including by way of a preliminary reference to the CJEU. This is the principal route;
• by lodging a complaint with the European Commission, which may open infringement proceedings;
• before the Constitutional Court, but only under strict conditions. In Decision No. 668/2011, the Court accepted for the first time that an EU rule may serve as an interposed norm in constitutional review, but only if two cumulative conditions are met: the rule must be “sufficiently clear, precise and unequivocal” in itself or as interpreted by the CJEU, and it must have “a certain level of constitutional relevance”. In that same decision, the Court declined to apply the test, finding that the EU requirements relied upon lacked constitutional relevance. It also reiterated that reviewing the compatibility of national law with EU law is, as a rule, a matter for the ordinary courts. For Directive 2018/958, the second condition would have to be argued: the proportionality test required by the Directive gives concrete expression to the proportionality requirement in Article 53 of the Constitution. The argument is plausible but not assured. It should therefore be deployed to reinforce a challenge based on Article 53, not as a free-standing ground of unconstitutionality.

Put simply, the legislature was required to demonstrate, before the vote, why a disclaimer and consumer protection rules would not suffice. If it failed to do so, the burden of proof has shifted against it.

7.4. The e-Commerce Directive (2000/31/EC)

The Directive establishes the country-of-origin principle (Article 3). An information society service lawfully established in another Member State may be restricted by Romania only through the derogation procedure under Article 3(4): necessity, proportionality, and prior notification of the Commission and of the Member State of origin.

A technical clarification regarding Article 1(5)(d). By means of separate indents, that provision excludes from the scope of the Directive the activities of notaries or equivalent professions to the extent that they involve a direct and specific connection with the exercise of public authority; the representation of a client and defence of his interests before the courts; and gambling activities. The exclusion relating to the legal profession thus covers strictly representation in court proceedings. Online legal information and advice remain fully within the scope of the Directive and the country-of-origin principle.

The text of the Directive contains four further elements that settle the question of its applicability to legal information platforms:

• Recital 18 states that information society services extend, in so far as they represent an economic activity, to services which are not remunerated by those who receive them. The examples given are services offering on-line information and those providing tools allowing for search, access and retrieval of data. That is an exact description of a legal research platform, including a free one. The same recital excludes only activities which by their very nature cannot be carried out at a distance and by electronic means, citing medical advice requiring the physical examination of a patient. A contrario, legal information, which can be provided entirely at a distance, remains within the scope of the Directive.
• Recital 9 states that the free movement of information society services can be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10 of the European Convention. Restrictions are permissible only within the limits of Article 10(2). The EU legislature thus linked the digital internal market, from the outset, to the right to information discussed in Sections 4.3 and 6.
• Recital 20 expressly includes among recipients of the service persons who seek information on the internet for private reasons, that is, precisely the citizen who wishes to understand his or her own situation.
• Article 2(h) includes in the “coordinated field” requirements concerning the taking up of the activity, such as requirements concerning qualifications, authorisation or notification, and its pursuit, including the quality or content of the service. A professional reservation that makes the online provision of legal information conditional on the status of lawyer is, by definition, a requirement falling within the coordinated field. It is therefore subject to the country-of-origin principle.

The case-law of the Court of Justice settles the matter on two levels:

• in Ker-Optika (C-108/09, 2 December 2010), the Court held disproportionate a national prohibition on selling online a product (contact lenses) which national law reserved to specialist shops and to the intervention of a qualified professional. It found that the objective of protecting public health could be achieved by less restrictive measures, including by advising the customer through the interactive features of the website. It nonetheless accepted that the State may require the intervention of a professional at the first supply. The lesson for legal information is direct: the mere fact that an activity is professionally regulated does not justify excluding the online channel. The proportionate solution is professional intervention where it is genuinely necessary, not a general prohibition;
• in Airbnb Ireland (C-390/18, 2019, Grand Chamber), the Court held that a national measure restricting an information society service from another Member State, adopted without the notification required by Article 3(4)(b) of the Directive, cannot be enforced against the provider, including in criminal proceedings.

For a platform established in another Member State, Articles 3¹ and 25¹ cannot be applied without completing the derogation procedure. Moreover, such a derogation must be assessed on a case-by-case basis, not by means of a general rule.

7.5. The TRIS procedure (Directive (EU) 2015/1535): probably the quickest procedural argument

Member States must notify the Commission, at the draft stage, of rules on services, that is, requirements of a general nature relating to the taking-up and pursuit of information society services, where they are specifically aimed at such services (Article 1(1)(e)). The obligation applies to any draft technical regulation, whoever initiates it, and therefore also to legislative proposals tabled by members of Parliament. Notification triggers a standstill period of at least three months (Article 6), during which the draft may not be adopted.

The analysis must be carried out provision by provision:

• Article 25¹ refers expressly to activities carried out “by means of online services” and provides for orders addressed to providers of intermediary services. It is explicitly and specifically aimed at information society services;
• Article 59(8) criminalises conduct carried out by means of an “internet domain name, website, online platform, social network, application or other information society service”. Once again, the targeting is explicit;
• Article 3¹(3), worded in technology-neutral terms (“irrespective of the means or technology used”), is more debatable, precisely because its neutrality suggests that it is not specifically aimed at online services. Read together with Article 25¹, however, its principal effect is the regulation of digital services.

The sanction is well established since CIA Security International (C-194/94, 1996): an unnotified technical regulation is unenforceable against individuals, and the national court must decline to apply it. In Unilever Italia (C-443/98, 2000), the Court extended that solution to breaches of the standstill period, including in proceedings between private parties.

If the proposal passed through Parliament without a TRIS notification, a platform sued under Article 25¹ has a defence that requires no assessment by the court of the merits of the legislation. It requires only a search of the Commission’s public database.

7.6. The DSA and the Charter of Fundamental Rights

A necessary clarification: Articles 9 and 10 DSA do not themselves provide the legal basis for orders. Orders are issued “on the basis of the applicable Union law or national law in compliance with Union law”. The Regulation merely lays down the minimum conditions that orders must satisfy (content, statement of reasons, territorial scope, information to the recipient).

Precisely because Article 25¹ is expressly designed as a mechanism for implementing Articles 9 and 10 DSA, the Romanian State is implementing Union law within the meaning of Article 51(1) of the Charter. This directly engages:

• Article 11 (freedom of expression and information);
• Article 16 (freedom to conduct a business);
• Article 47 (right to an effective remedy and to a fair trial).

Viewed through the lens of Article 47, the procedure is vulnerable: a first hearing within no more than 5 days, an immediately enforceable judgment, a 5-day appeal period, and proceedings initiated by a body representing the defendant’s direct competitors. Equality of arms, adequate time to prepare a defence and the perceived impartiality of the mechanism are hard to reconcile with this pace. Moreover, what is at stake is the complete cessation of an activity and its blocking through intermediaries.

7.7. The AI Act (Regulation (EU) 2024/1689)

For AI systems that interact with the public, the EU legislature chose transparency (Article 50), not prohibition. The systems classified as high-risk in the area of the administration of justice (Annex III, point 8) are those intended for use by judicial authorities, not information tools for citizens. The AI Act does not harmonise the regulation of the legal professions. It nonetheless shows that, at European level, the proportionate standard for such tools is informing the user.

7.8. Standing to bring the action: the competition law perspective

From the standpoint of EU law, a professional body may qualify as an association of undertakings when it adopts rules affecting the market (Wouters, C-309/99, 2002). The Court of Justice views with suspicion situations in which the State entrusts bodies composed of representatives of market operators with powers enabling them to shape the market or eliminate competing services:

• in OTOC (C-1/12, 2013), a regulation of the Portuguese association of chartered accountants that largely reserved to the association itself the market for compulsory professional training was held to be contrary to Article 101 TFEU;
• in API (Joined Cases C-184/13 to C-187/13, C-194/13, C-195/13 and C-208/13, 4 September 2014), the Court held that Article 101 TFEU, read in conjunction with Article 4(3) TEU, precludes national legislation entrusting the setting of minimum operating costs in road haulage to a body composed mainly of representatives of the economic operators concerned.

In fairness, it must be acknowledged that Wouters ultimately upheld the Dutch Bar’s rule as necessary for the proper practice of the profession. And under Article 25¹ the decision lies with the court, not with UNBR. The argument is therefore not one of automatic invalidity. It is, however, a serious argument of institutional design: the draft entrusts the initiative to remove alternative services from the market exclusively to their direct competitor, rather than to a neutral public authority.

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8. The counter-arguments – and why they are not decisive

A fair analysis must take them seriously.

“The draft law prohibits nothing to citizens; it prohibits only unauthorised providers.” Formally, that is true. But the rights to receive information and to defend oneself are exercised through means. Restricting the supply of means is a restriction on the exercise of the right. Open Door likewise concerned a prohibition imposed on providers of information, and the Court examined it from the perspective of the recipients.

“Paragraph (2) protects general information; the draft actually brings clarity.” Partly true, and this is the merit of the text: for the first time, it provides an express safe harbour. The problem is the dividing criterion. The value of legal information for the citizen lies precisely in its application to his or her situation.

“The Strasbourg Court has accepted mandatory legal representation.” True, but only before courts of cassation, in view of their particular formalism (Staroszczyk v. Poland, 2007). The Romanian Constitutional Court itself took that case-law into account while emphasising its limit: procedural rules cannot become a barrier preventing litigants from having their case determined by a court (Decision No. 462/2014, § 53). Everyday legal information is, by definition, the very opposite of cassation formalism.

“States enjoy a wide margin of appreciation in regulating the legal professions.” True (Casado Coca, Cipolla, Wouters). The margin narrows, however, where the restriction affects the core of the right to information and the right of defence of third parties. Nor does the margin of appreciation relieve the legislature of the procedural obligations imposed by EU law (Law No. 245/2020, TRIS, Directive 2000/31/EC).

“AI errors can cause serious harm.” True, and this is the most serious argument. But the absence of information also causes harm: missed time limits, rights left unenforced, fines left unchallenged. The correct comparison is not between AI and a lawyer, but between AI with warnings and nothing at all, for those who have no access to a lawyer.

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9. What proportionate regulation would look like

The problem is not new. In 1999, a federal district court in Texas enjoined the sale of the Quicken Family Lawyer software, holding that it constituted the unauthorized practice of law (Unauthorized Practice of Law Committee v. Parsons Technology, Inc.). The Texas Legislature responded within months: Tex. Gov’t Code § 81.101(c) excluded from the definition of the “practice of law” computer software and similar products that clearly and conspicuously state that they are not a substitute for the advice of an attorney. The United States Court of Appeals for the Fifth Circuit then vacated the injunction (179 F.3d 956 (5th Cir. 1999)). The solution chosen was transparency, not prohibition, more than a quarter of a century ago.

A balanced solution for Romania could look like this:

1. Retaining the lawyers’ reserved activities for representation, assistance before public authorities and the drafting of instruments with legal effect on behalf of a client, that is, where there is genuinely a relationship of mandate and professional responsibility.
2. An express exemption for automated legal information tools, modelled on § 81.101(c): the provision of software tools that clearly and conspicuously state that they are not lawyers and are not a substitute for consulting a lawyer does not constitute legal advice.
3. Transparency obligations: a permanent notice, disclosure that the user is interacting with AI, citation of sources, and the date on which the legislative database was last updated.
4. A duty of referral to a lawyer or to state legal aid services in situations involving imminent time limits that would extinguish rights, criminal matters or high stakes.
5. Sanctions for deceptive practices, not for the mere provision of information: holding oneself out as a lawyer, promises of outcomes, absence of warnings.
6. Standing to bring the action under Article 25¹ vested in a neutral authority (for example, the National Authority for Consumer Protection (ANPC) or ANCOM, the Digital Services Coordinator), not in the directly competing professional body.
7. Compliance with EU procedures: the proportionality assessment under Law No. 245/2020, TRIS notification and, for providers established in other Member States, the derogation procedure under Directive 2000/31/EC.

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10. Avenues of challenge

• After adoption by Parliament and before promulgation: a request by the President of Romania that Parliament reconsider the law (Article 77(2) of the Constitution), and a referral to the Constitutional Court by the persons entitled to do so under Article 146(a) of the Constitution, including the Ombudsman (Avocatul Poporului).
• After entry into force: a plea of unconstitutionality raised in any proceedings based on Article 3¹ or 25¹, including the expedited procedure initiated by UNBR.
• EU law defences before the national court: unenforceability for lack of TRIS notification (CIA Security, Unilever); unenforceability against providers established in other Member States for lack of the notification required by Article 3(4) of Directive 2000/31/EC (Airbnb Ireland); failure to carry out the prior proportionality test (Directive 2018/958, Law No. 245/2020); Article 47 of the Charter. Any of these may be accompanied by a request for a preliminary reference to the CJEU.
• A complaint to the European Commission for breach of Directive 2018/958 and Directive 2015/1535.
• The European Convention: once domestic remedies have been exhausted, an application to the European Court of Human Rights under Articles 10 and 6.

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Conclusion

The maxim nemo censetur ignorare legem is a duty that the State imposes on the citizen. But it is also a promise that the State makes to the citizen: that the law will be accessible to him. Knowing the law does not mean reciting an article. It means knowing what you may do, what you risk and how to defend yourself. In other words, it inevitably means knowing how the law applies to your own situation.

The new definition of legal advice in the draft law leaves intact the presumption that we all know the law. Yet it restricts precisely the modern means by which most people could actually come to know it. In so doing, it directly affects the right to information and, through it, the right of defence of those who have no access to a lawyer. And EU law required that, before drawing such a line, the legislature demonstrate that no gentler path was available.

The risks of legal AI are real. The proportionate response to them, however, is transparency, not silence. A State that presumes that all its citizens know the law cannot turn the explanation of that law into a privilege.

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This analysis is a doctrinal legal opinion, written for the purposes of public debate. References to case law and legislation reflect the texts available at the time of writing, October 2026. Translated from the Romanian original; quotations from Romanian legislation and from decisions of the Romanian Constitutional Court are unofficial translations.