PPP Research Center

 Romanian Public-Private Partnership Law Review

No. 14 / 2015

TABLE OF CONTENTS: 

Who can turn to the International Centre on The Settlement of Investment Disputes?
by Claudiu-Paul Buglea, PhD, Associate Professor, Faculty of Law, University of Bucharest

Good practices for the qualitative structuring of a PPP project. The procurement of quality consultancy or the lowest price?
by Daniel Anghel, Tax Partner, PricewaterhouseCoopers Romania

Difficult decisions: the limits of choice by contracting authorities when awarding concession contracts
by Simona Gherghina, PhD, Associate Professor, Faculty of Law, University of Bucharest

Public-private partnerships revival: current European approaches
by Ion Ghizdeanu, PhD, Professor, President of the National Commission for Prognosis, Researcher, NIER, Romanian Academy

Short tax considerations regarding the regulation of the association of economic operators participating to a public procurement procedure
by Marilena Ene, PhD(c), LL.M, Attorney at Law, Bucharest Bar

Reflections on the non-constitutionality of some provisions of the Criminal Code by reference of the fulfilment of certain job responsibilities in application of the legislation on public procurement
by Monica Amalia Rațiu, PhD, Associate Professor, Faculty of Law, University of Bucharest

 

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Who can turn to the International Centre on The Settlement of Investment Disputes?

Claudiu-Paul Buglea, PhD
Associate Professor
Faculty of Law
University of Bucharest


The answer to this question, which is important regarding the start of the procedure before the Centre, is actually equivalent to a detailed analysis of its competence rationae personam. From this perspective, it can be observed, that the competence of the Centre is limited to disputes between a Contracting State (or certain public entities or state dependent bodies) and the citizen of another Contracting State. The Centre does not handle disputes between states or between private persons.

Thus, we shall attempt to present and to analyse the parties to such a dispute, respectively, on one side, the state hosting the investment and public entities or state dependent bodies and, on the other side, the foreign merchant, physical or moral person, but also the way in which the will of both parties meet, materialized in the necessary and compulsory consent, so that the Centre may be invested with the mission to solve the dispute.

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Good practices for the qualitative structuring of a PPP project.
The procurement of quality consultancy or the lowest price?

Daniel Anghel
Tax Partner
PricewaterhouseCoopers Romania

Abstract:

There are many elements which lead to the definition and, further on, the implementation of a successful PPP project, but, aside a coherent regulatory and institutional framework, appropriate administrative capacity and ensuring that transparency and free competition principles are met, it takes a qualitative approach of the PPP project from the very structuring phase. In other words, from the moment in which the utility and the opportunity to launch a PPP project foreshadows, the public authority has to determine and to choose the best methods and the right and qualified resources to put in motion the PPP mechanism.

n order to ensure that the best suited elements are used when initiating and developing a PPP project, public authorities must differentiate between the qualitative elements which should be taken into consideration (i.e. for specialized consultancy, either management, legal and/or technical consultancy) and the tendency dictated by the comfort of a remote administrative liability for choosing the cheapest services.

It is not by chance that the rule for PPP projects is that the private partner has to be selected based on a mixed criterion and not for its lowest financial proposal. Nevertheless, until the contract with the private partner is signed, the public authority has to make sure of the quality of the awarding documentation preceding the public procedure for the selection of the private partner. Moreover, the public authority must make a just analysis of its own administrative capacity to manage the PPP project and it is utterly useful for it to determine beforehand if and which are the areas where it needs complementary specialized assistance, to assign and/or procure the necessary resources. Although a lower financial bid can keep us safe from the rain of questions bursting from the Court of Accounts, it also can make us lose a good project.

We are going to address herein a few good practices for reaching a bid which is rather qualitative and tailored than cheap and guarantee-free in terms of quality, with a view to emphasize recent practice in the public sector.


Keywords: PPP, public authority, awarding factors, technical specifications, awarding documentation.

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Difficult decisions: the limits of choice by contracting authorities when awarding concession contracts

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

 Abstract:

Within the award procedures for concession contracts, contracting authorities are facing certain decisions for which the needed references are not provided by applicable regulations but merely by ECJ case law, not always providing clear criteria, by EC interpretative communications or by best practices. All these references are not compounded in a single set of criteria relevant for such decision making, thus making more difficult the burden of choice placed on contracting authorities. Such decisions may be related to the structuring of award procedures for concession contracts below threshold, to contract negotiation or to contract effectivity. The criteria and rules meant to inform contracting authorities when making such choices should be included in the national regulations.

Keywords: concession, award procedures, cross-border interest, excluded contracts contract negotiation, contract effectivity

 

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Public-private partnerships revival: current European approaches

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

 Abstract:

Like most regions of the world, Europe is in a post-crisis period of profound structural changes. To be more competitive and to get closer to the ambitious objectives of the Europe 2020 Strategy, European countries must restructure the administration and the productive engines so as to save and invest more. Public sources are limited and national financing is limited by high sovereign debt. European Union still registered unsatisfactory dynamics of investments.

An adequate response to this situation is the “Investment Plan for Europe” of President Juncker which, essentially aims at multiplying community investments funds through a complementarity of public and private resources, which brings forward to the public - private partnership.

In this general context characterized by an apparent contradiction between the willingness and demand for high investments rates and the modest achievements, it multiply the concerns for revival of public - private partnerships, as solutions for replication and efficiency of European investments.


Keywords: Investment Plan for Europe, Completion of European EMU, European PPP Expert Centre (CEEP), the concept of “blending”, bonds issues, capital markets.

 

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Short tax considerations regarding the regulation of the association of economic operators participating to a public procurement procedure

Marilena Ene, PhD(c)
LL.M
Attorney at Law
Bucharest Bar Association

Abstract:

The adequate regulation of the association of economic operators participating to a public procurement procedure or a concession is important for the business environment in Romania. The correlation of public procurement provisions with tax provisions is an important procedure in practice because any violation of tax regulations may lead to payment differences both at direct taxation level and also at added value tax level.

In the framework of the article is included a succinct analysis of legal provisions regarding the association, as resulting from the interpretation of the Tax Code in force starting January 1st 2016 and a presentation of the specific conditions applicable to the association agreement in relation to tax provisions.

Keywords:  public procurement, association, joint venture, concession, corporation tax, income tax, added value tax.

 

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Reflections on the non-constitutionality of some provisions of the Criminal Code by reference of the fulfilment of certain job responsibilities in application of the legislation on public procurement

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

Abstract:

Two articles of the present Criminal Code, resuming older expressions or enshrining new approaches, create an unlimited framework for punishment of actions or inactions of public servants. Public servants can be subject of a criminal procedure for abuse of office or negligence at work, depending on the form of guilt retained, according to an analysis which is not set within certain legal limitations, either for not performing an action which is set within their official attributions, or for performing it “in a faulty manner”.

This analysis aims to determine to what extent are respected the requirements established by the provisions of article 7 paragraph (1) of the European Convention on Human Rights and Fundamental Freedoms (“the Convention”) by those legal texts that have the purpose of sanctioning the non-fulfilment of an action and of the “failure” to implement the legislation on public procurement as an official obligation. The articles regulating the abuse or negligence while in office have the following content:

“Article 297. - (1) The action of the public servant who, exercising his official attributions, does not fulfil an action or fulfils it in a faulty manner and thus causes prejudice or damage to the legitimate rights or interests of a natural or a legal person, is punished by imprisonment from 2 to 7 years and the prohibition to exercise public office.

Article 298. – The culpable infringement, by a public servant, of an official obligation, by not fulfilling it or by fulfilling it defectively, if causing prejudice or harm to the legitimate rights or interests of a natural or a legal person, is punished by imprisonment from 3 months to 3 years or by a pecuniary fine.”

Those articles were regulated as subsidiary provisions, the objective side of the offenses being characterized by a maximum generality.

The unconstitutionality remarked and which we intend to argument, refers to the lack of predictability of the two articles from the Criminal Code which, due to the method of regulation, do not allow the public servant, both in the exercise of the general attributions included in his job description, and in the exercise of the attributions related to the public procurement legislation - in particular - to regulate it’s conduct in such a manner as to prevent criminal prosecution and it’s appearance before the court for abuse of office or negligence at work.

Since the Criminal Code contains a non-circumstantial regulation regarding the omission to fulfill an action and does not define the meaning of the expression to fulfil an official action or obligation “in a faulty manner”, jurisprudence is inconsistent on this subject and doctrine has recorded constantly the existence of an uncertainty regarding the classification of actions and omissions in the exercise of official attributions in such offenses, the premises for the infringement of the provisions of article 7 paragraph 1 of the Convention on Human Rights and Fundamental Freedoms were created both at the moment of criminal prosecution and at the moment of trial, by interpreting legal texts exclusively to the detriment of the defendant and the arbitrary classification of omissions and actions which have a “faulty” characteristics, as offenses, including depending on the policy in the criminal field adopted at a certain moment. Practically, articles 297 paragraph (1) and 298 submitted to the analysis infringe on the constitutional provisions of article 1 paragraph (5) regarding the principle of respect of the law and of article 20 regarding the pre-eminence of international treaties on human rights on internal laws, referring to the provisions of article 7 paragraph (1) regarding the legality of the incrimination in the Convention on Human Rights and Fundamental Freedoms.

The evolution of the jurisprudence of the on European Court of Human Rights (“the Court” or “ECHR”, depending on the case) regarding the contents of the provisions of article 7 paragraph (1) of the Convention was subject of detailed analysis and reflection in specialized doctrine. The present article did not intend to realize an exposé of the doctrine analysing the provisions of article 7 paragraph (1), but to confront to the filter instituted by the ECHR case-law, certain legal provisions of the new Criminal Code which, because of the way it was drafted, offers counter-arguments for reasons of lack of clarity, underlining the specifity that derives from the implementation of public procurement legislation..

Keywords:  public procurement, offenses in public procurement law, abuse or negligence while exercising official attributions, article 7 paragraph (1) of the Convention on Human Rights and Fundamental Freedoms, non-constitutionality of an unclear legal provision.