PPP Research Center

 Romanian Public-Private Partnership Law Review

No. 12 / 2014

TABLE OF CONTENTS: 

The implementation of the obligations “to perform” imputed to the contracting authority by jurisdictional procedures, pursuant to the provisions of the EGO no. 34/2006
by Alexandru-Sorin Ciobanu, PhD, Lecturer, Faculty of Law, University of Bucharest

Concession or public procurement: identifying the legal nature of the contract
by Simona Gherghina, PhD, Associate Professor, Faculty of Law, University of Bucharest

The legal and tax regime of partnerships
by Daniel Anghel, Tax Partner, PricewaterhouseCoopers Romania

The new European directives on public procurement: a different approach in the field of public procurement of services
by Monica Amalia Rațiu, PhD, Lecturer, Faculty of Law, University of Bucharest

 

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The implementation of the obligations “to perform” imputed to the contracting authority by jurisdictional procedures, pursuant to the provisions of the EGO no. 34/2006

Alexandru-Sorin Ciobanu, PhD
Lecturer
Faculty of Law
University of Bucharest

Abstract:

Both within the procedure for the award of public procurement or services/public works concession contracts and during the operation of these contracts, disputes may arise between the contracting authority and economic operators. The resolution of these disputes can be achieved by administrative- jurisdictional means, by the National Council for Solving Complaints, or by judicial process by the administrative review courts of law.

In many cases, the decisions rendered by such jurisdictional mechanisms require that contracting authorities fulfill obligations “to perform”, with regard to these “remedial measures”, aimed at reinstating the legality of the award procedure, as well as with regard to the issuance of legal deeds or the completion of administrative operations or of material facts, necessary for the implementation of contractual relationships.

The present paper aims to analyze the ways in which such obligations can be achieved, according to the law, including through coercive means. In this sense, we present administrative tools available to the National Authority for the Regulation and Monitoring of Public Procurement, as well as the special procedure for the enforcement of judicial decisions, regulated by Judicial Review of Administrative Action Act no. 554/2004.

Keywords: 
obligations “to perform”, public procurement, concessions, EGO no. 34/2006, the National Council for Solving Complaints, Judicial Review of Administrative Action Act no. 554/2004, New Code of Civil Procedure, contraventions, enforcement, late payment penalties, damages.

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Concession or public procurement: identifying the legal nature of the contract


Simona Gherghina, PhD
Associate Professor
Faculty of Law
University of Bucharest

Abstract:

Discussed by legal doctrine and by the jurisprudence of the Court of Justice of the European Union, the issue of differentiating concession contracts from public procurement contracts remains relevant after the entry into force of the new directives on public procurement and concessions. For Romanian law, an important effect of the enforcement of the new Directive on concessions, subsequent to its implementation, will be the integration of the delegated management contracts for public utilities into its scope, which will require significant reform of the current regulations in the field. The delegated management contracts will therefore fall within the scope of the new directives on public procurement or concessions, as it is no longer possible to subject them to different regulations.

Keywords: service concession, operating risk, right to exploit, works concession, public procurement.


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The legal and tax regime of partnerships

Daniel Anghel
Tax Partner
PricewaterhouseCoopers Romania

 Abstract:

Considering their complexity, public-private partnerships involve a heterogeneous participation, the ultimate purpose being often reached only by gathering various types of expertise and experiences under the same roof.

In search of the perfect partner for the development of a public-private partnership project, the contracting authorities come to award PPP contracts to the consortia having the right mix and characteristics suited for the respective project theme.

Nevertheless, within the private spectrum, although tempting from the perspective of the PPP projects prominence and the possibility of winning such projects, the creation of consortia is not always a feasible or easy commercial equation.

The reasons behind why the partnerships between private players remain a taboo topic, that can turn out to be intimidating including for the big companies, are the lack of possibility to shape the responsibility of each member or simply the difficulty to properly understand the concept of a partnership and the possibility to accommodate it with the strict policies all participant companies have.

Furthermore, we shall not only analyse the concept of partnership in its most common shape and practical application, but also how this form of joint participation to PPP projects is reflected in the tax legislation.

Although numerous economic operators have explored and continue to explore the possibility to transform the consortium agreement into a so-called uncategorized contract, in the current legal reality, such a solution is not accepted. 

Thus, both the legal treatment and, consequently, the fiscal one, are still correspondent to partnerships, with all the effects resulting therefrom, regardless of the names such contracts are given.

Keywords: comfort letter, public funding, public guarantees, public spending, state aid, Civil Code.

 

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The new EU directives on public procurement: a different approach regarding the public procurement of services

Monica Amalia Rațiu, PhD
Lecturer
Faculty of Law
University of Bucharest

 Abstract:

Services have been considered one of the essential elements of the establishment of the single market, ever since the signing of the Treaty. The concept of services and related freedoms have benefited both from being regulated by the Treaty on the Functioning of the European Union (TFEU), as well as in subsequent legislative developments in other types of normative acts of the EU law.

Even though the free movement of services was a widely accepted basic goal, it was not as obvious, from the outset, to what extent it is appropriate for services in general and, in particular, those associated with the execution of works and supply of products, to be subject of EU public procurement regulations.

An analysis of EU legislation on services route reveals a spectacular evolution in the perception of public service contracts, from a limited application accompanied by monitoring, up to an extended application of public procurement rules also in this sector.

Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC (“the new classic directive “ or “classic directive”) eliminates the distinction between category A and category B services. In addition, it brings a major change in the acquisition of services, thus establishing, as a general rule, the application of all the provisions of the Directive and, only exceptionally, regulates a “light regime”, which applies to social services and other specific services listed exhaustively in a specific annex to the directive.

Keywords: public procurement, public procurement of services, category A services, category B services, social services, light regim, Directive 2014/24/EU of the European Parliament and of the Council on public procurement and repealing Directive 2004/18/EC.