PPP Research Center

Romanian Public-Private Partnership Law Review

No. 1 / 2012

TABLE OF CONTENTS: 

An interview with Mr. Mihai Prisacariu, General Manager of the Central Public-Private Partnership Coordination Unit of the General Secretariat of the Government 

Considerations on the Institutional Public-Private Partnership (IPPP) 
by Monica Amalia Ratiu PhD, Lecturer Faculty of Law, University of Bucharest

The public partner in PPP projects – confirming new frontiers for the public sector
by Simona Gherghina, PhD, Assistant Lecturer, Faculty of Law University of Bucharest

The fiscal treatment applicable to the transfer of assets within the project company
by Marilena Ene, Attorney at Law Bucharest Bar Association

The proportionality principle as reflected by the Romanian courts decisions on public procurement procedures
by Iuliana Leon, Attorney at Law Dambovita Bar Association

 
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An interview with Mr. Mihai Prisacariu, General Manager of the Central Public-Private Partnership Coordination Unit of the General Secretariat of the Government

Reporter:
The European Union institutions view “Public Private Partnerships” as an important anti-crisis solution, given the current economic and social circumstances. What role could the public private partnership play in Romania?

M.P: 
The public-private partnership phenomenon is viewed today, perhaps more than ever before, as one of the most suitable formulae for attracting private capital for public projects. These private investments aim at realizing efficient assets or services for the citizens. Certain projects are ideally suited as public-private partnership projects. For example, projects operating the road infrastructure (county/national roads, highways, bridges, tunnels, etc.) or providing public services (such as hospitals, schools, kindergartens, gyms, performance halls, water treatment plants, etc.). 

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Considerations on the Institutional Public-Private Partnership (IPPP)

Monica Amalia Ratiu PhD
Lecturer
Faculty of Law
University of Bucharest 

Abstract:

The institutional public-private partnership (IPPP) represents one of the modalities of economic cooperation between the public and the private sector, having as objective the operation of a public project. The specifics of the establishment and operation of an IPPP among the EU member states are not uniform. The whole range of issues associated to the compliance with the transparency and competitiveness principles  related to the establishment and operation of an IPPP has been analysed and debated in numerous occasions by several EU institutions and has generated some jurisprudence by the Court of Justice. The Romanian legislator has determined that institutional public-private partnership is established by special contract. The special legislation adopted in 2010, further amended in 2011, represents a solid basis for a transparent and a competitive selection of private investors for the purpose of achieving a successful implementation of public-private partnership projects.

Key words: public-private partnership, public-private partnership contract, institutional public-private partnership, project company.

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The public partner in PPP projects – confirming new frontiers for the public sector

Simona Gherghina, PhD
Assistant Lecturer,
 Faculty of Law
University of Bucharest

Abstract:

The amendments brought to the Law on public-private partnership by the Emergency Government Ordinance no. 86/2011 redefines the limits of the concept of public partner entitled to undertake a public-private partnership project, thus contributing to the design of an uniform idea of public sector, at least as concerns its contractual relationship with the private sector. A maximalist concept of public sector is thus confirmed, common to both public procurement and public-private partnership regulations, but largely applicable also to financial relations between the classic components of the public sector – public authorities and public institutions – and their economic avatars: bodies governed by public law, public undertakings and private entities entrusted with special or exclusive rights by public authorities. Based on such maximal concept, the state’s participation as an actor, rather than as regulator of economic relations in the private area is recognized and regulated, whilst maintaining its subordination to the pursuit of public interest. 

Key words: public-private partnership, public partner, public sector, public undertaking, bodies governed by public law, special or exclusive rights.

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The fiscal treatment applicable to the transfer of assets within the project company 

Marilena Ene
Attorney at Law
Bucharest Bar Association

Abstract:

Romanian PPP Law establishes the project company as a vehicle for implementation of public-private partnership projects. Apparently, this seems to be a new legal entity in the Romanian legal system, but as it will be shown below in this study, the incorporation and the operation of the project company is regulated by the already existing company law. Consequently, the tax treatment applicable to the transfer of assets to the project company, at the incorporation date and to the shareholders at the date of liquidation is identical to that applicable to any other company in similar cases. 

Key words: public-private partnership, project company, in-kind contribution, profit tax, value added tax, liquidation.

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The proportionality principle as reflected by the Romanian courts decisions on public procurement procedures

 Iuliana Leon
Attorney at Law
Dambovita Bar Association

Abstract:

Setting qualification criteria that ignore the proportionality principle may result in a legal basis for challenging a public procurement procedure. As the regulations governing public-private partnership in Romania are quite recent; there is no specific case law in this domain. The definition of the proportionality principle, as comprised in the Romanian public-private partnership legislation, includes the same elements that have been already endorsed by practice and doctrine in matters of public procurement and concession, whereas the jurisdictional bodies requested to issue decisions on breaches of this principle are those already enabled to decide in matters related to public procurement and concession. Given these assumptions, an overview of how the proportionality principle appears in the practical activity of Romanian courts that handle public procurement and concession disputes could provide a benchmark for the future case law grounded on Law no. 178/2010.

Key words: public-private partnership, the proportionality principle, qualification criteria, selection criteria, bidder, public procurement.

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