PPP Research Center

 Romanian Public-Private Partnership Law Review

No. 13 / 2015

TABLE OF CONTENTS: 

European investment and public-private partnership expansion perspectives
by Ion Ghizdeanu, PhD, Professor, President of the National Commission of Prognosis, Researcher, NIER, Romanian Academy

Anticompetitive agreements in public procurement procedures: does criminal law prevail over the administrative law or vice versa?
by Adriana Almășan, PhD, Associate Professor, Faculty of Law, University of Bucharest, Lawyer, Bucharest Bar Association

The duration of the public-private partnership contract (I)
by Simona Gherghina, PhD, Associate Professor, Faculty of Law, University of Bucharest

The instruments whereby the Public Procurement Directive will facilitate access of SMEs to public procurement contracts
by Florentina Drăgan, Advisor for Solving Complaints in Public Procurement, National Council for Solving Complaints

Considerations on the competitive procedure with negotiation
by Monica Amalia Rațiu, PhD, Associate Professor, Faculty of Law, University of Bucharest

PRAXIS:

The modernization and simplification of VAT collection
by Daniel Anghel, Partner, Tax Consultancy, PwC Romania, Treasurer, Foreign Investors’ Council

 

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European investment and public-private partnership expansion perspectives

Ion Ghizdeanu, PhD
Professor
President of the National Commission of Prognosis
Researcher, NIER, Romanian Academy

Abstract:

The amplification of investment activity, including or mostly by public-private partnerships, directly depends on global or regional economic growth. The recovery of the global economy and, even more so, of the European economy multiplies the availability of investment funds. At the same time, investment acceleration is essential for any economic recovery. Developments after the crisis have shown that Europe has not found the key for this “vicious circle” to turn into an auto-generating development “interaction”.

European and national macro-policies supporting investment behaviors, including public-private partnership projects, are either in a draft stage or in the first stage of implementation.

In this general context, we believe that the estimates of specialized bodies regarding investment prospects, as well as the description of main investment policies and promotion of PPPs, that the European Union is considering, may represent important anchors in order to stimulate public-private partnerships in Romania.

Keywords: investment evolution and forecast, public-private partnership, investment plan for Europe, Horizon 2020 Programme, “Authority-pay PPP” type projects.

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Anticompetitive agreements in public procurement procedures: does criminal law prevail over the administrative law or vice versa?

Adriana Almășan, PhD
Associate Professor
Faculty of Law, University of Bucharest
Lawyer, Bucharest Bar Association

Abstract:

Criminal law contributes, through sanctioning measures imposed by Competition Law no. 21/1996 and the specific offenses provided in the Criminal Code to implement fair competition in the market. Along with sanctions and remedies of an administrative and civil nature, the offences provided under the Criminal Code and the Competition Law aim to deter anticompetitive agreements. This study examines the extent to which the legislative changes made in criminal law emphasize the pursued deterrence and the practical consequences of the regulation of competition law infringements, by distinct rules and regulations.

Keywords: 
bid rigging, fine, imprisonment, anticompetitive agreement, causes of impunity.

 
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The duration of the public-private partnership contract (I)

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

 Abstract:

Although the determination of the duration is a common issue for all public contracts which are usually concluded for a long term, including, in addition to public-private partnership contracts, concession contracts of assets, works or public services, as well as contracts for the delegation of public utilities, current legislative solutions are not uniform. They vary between establishing a maximum duration but without any criteria for determining the actual duration in each case, and establishing general criteria, without a maximum limit of time.

In these circumstances, the practice has adopted various solutions, most often tending to choose a longer contract duration, often unaccompanied by the rigorous justification of how it was determined.

This study aims to analyse the determination of the duration of such public contracts by clarification the criteria for determining the duration of the contracts included in the special legislation, as well as the determination of the main lines of the application of these criteria. The analysis envisages the relations between the applicable legal provisions, but also the extent to which public authorities may determine the duration of public contracts by resorting almost exclusively to their freedom of will, within the often vague limits expressly stated by the law.

Keywords: 
public-private partnership, duration, return on investment, concession, public services.

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The instruments whereby the Public Procurement Directive will facilitate access of SMEs to public procurement contracts

“Europe is good for SMEs,
and SMEs are good for Europe”

Florentina Drăgan
Advisor for Solving Complaints in Public Procurement
National Council for Solving Complaints

 Abstract:

Economic recovery requires a strong European industry, in order to foster growth and competitiveness; this is the reason why it was believed that European SMEs should overcome the barriers that hinder their development, since access to public procurement is an increasingly important component.

Keywords: public procurement, SMEs, transposition, Directive No. 2014/24 /EU of the European Parliament and of the Council on Public Procurement, Directive No. 2004/17/EC of the European Parliament and of the Council, Directive No. 2004/18/EC of the European Parliament and of the Council.

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Considerations on the competitive procedure with negotiation

Monica Amalia Rațiu, PhD
Associate Professor
Faculty of Law
University of Bucharest

Abstract:

The new EU directives on public procurement have brought significant changes both in terms of procedures for the award of procurement contracts in general and, in particular, in connection with the scope and mechanism of procedures involving the possibility of conducting negotiations between parties.

Arguments that there is a need to also resort to negotiations in the award of certain public procurement contracts were found in the regulations adopted in the European Union Law right from the beginning of development of the legal system in question. The way of understanding and the procedure implementation mechanisms which include the step of negotiating by member states were not, however, uniform from the start, as the specific national legal systems leaves initially a strong imprint on concrete regulatory options.

The new classic Directive imposes member states to give contracting authorities access to use competitive dialogue and competitive procedure with negotiation in conditions in which the previous classical Directive provided the opportunity not to implement the competitive dialogue in national law, and the procedure of negotiation with prior publication of a notice had a rather small area of incidence. In addition, the conditions currently allowing the use of the two procedures with negotiation are common.

The new regulatory technique of the competitive procedure with negotiation and the competitive dialogue determines new approaches in the sphere of procedures for the award of public contracts and opens new areas of research initially called to clarify the criteria justifying the use of procedures with negotiation in general and of the competitive procedure with negotiation in particular.

Keywords:  public procurement, negotiation, competitive procedure with negotiation, negotiation with prior publication of a contract notice, competitive dialogue, the choice in selecting a procedure with negotiation.

 

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PRAXIS

Are the public-private partnerships influenced by the modernization and simplification of VAT collection?

Daniel Anghel
Partner, Tax Consultancy, PwC Romania,
Treasurer, Foreign Investors’ Council

Voluntarily or not, we all witness, lately, a fever of fiscal inspections, and a continuous media show in this area.

Fiscal inspections were carried out in the past as well, but their results were far from being as spectacular... Thus, what’s behind the ANAF’s endeavour? What are the objectives and what are we heading for?

ANAF’s actions must be seen and analyzed in Romania’s present financial context. Currently, the Ministry of Public Finance promotes a list of attractive fiscal measures, tempting for the business environment and well received by the public. Among these is the extension of the category of products to which the reduced VAT of 9% applies and, in the near future, the reduction of the VAT with four percentage points.

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