UNIVERSITY OF BUCHAREST FACULTY OF LAW

PHD THESIS

CONCESSION AGREEMENT IN ROMANIA

COMPARATIVE APPROACH WITH OTHER COUNTRIES OF THE

WORLD

ABSTRACT

Scientific coordinator: Profesor Dana Tofan, PhD.

PhD student: Ogarcă (Dinu) Cătălina Georgeta

Bucharest 2015

Key-words: concession, public domain, public interest, royalty, juridical nature.

Beyond its often-controversial judicial nature, concession won its fame of the most used

method in public domain exploration by the Administration, by transfer to individuals of

exclusive rights to this regard1.

Both theoretically as well as practically, the concession institution had an evolving path2

and acquired a universal character due to its presence in not only one specific law system or

countries with a certain social and judicial specificity, but in most of the countries around the

world.

The concession agreement crossed the space and time barriers, it does not belong to a

certain era or certain economic and social backgrounds, it did not cease its existence and it

did not become anachronic.

The concession agreement transformed on a continuous basis, adapting itself to the needs

of the society and yet maintaining an indissoluble correlation with the notions that have

always marked its identity, such as: public field, public interest or public service.

Regarding the interdisciplinarity of aspects related to public property right and implicitly

of the concession agreement’s judicial nature or jurisdictional competence in the field,

relevant doctrinarian studies were based on an older controversy of this theme’s belonging to

either civil law or administrative law.

The dichotomous character of the concession agreement reveals once more the difficulties

encountered in finding the foundation of the existence of such agreements, but especially in

correctly establishing the judicial regime applied to them.

The notoriety and controversies related to the concession agreement imposed complex

analyses along the history, aiming to track and categorize such doctoral research. Far from

being an exhaustive research, the present paper proposes nevertheless to be a pioneering

approach in the field of concession in the Romanian judicial space, since it mixes elements of

national administrative law and elements of compared law, but it also tackles tangential

aspects inherent to delimitation of the concession as genuinely as possible, which belong to

the civil law, private international law and public international law.

This approach was a natural one, resulting from the nature of the concession’s judicial

institution. Thus, apart from the classical controversies related to concession’s statutory part 1 René Dussault, Louis Borgeat, Traité de droit administratif, Presses de l’Université Laval, Quebec, 2éme edition, vol. 2, 1986, p.154. 2 Dana Apostol Tofan, Regimul juridic aplicabil concesiunii, cu specială privire asupra concesiunii bunurilor publice, în lucrarea Liber amicorum Nicolae Popa, Ed.Hamangiu, Bucureşti, 2009, p.171.

and contractual part, we shall add for informational purpose only, other relevant aspects: a

vernacular legislative frame which is fluctuating, instable, ambiguous but comprehensive as

well, willing to provide answers to the necessities of contemporary casuistry; the diversity of

the type of agreements similar to concession or its derivates – which can be identified in

different States of the world; the judicial nature of the property right over the soil wealth;

polyvalent jurisdictional skill – with tendencies towards the civil courts or administrative

courts.

In addition, the concession right was debated, including under the aspect of its judicial

characters: is this a real right – dismembered right of the public property right exerted intuitu

personae or is it a personal right?

Is or isn’t the regulation pertaining to concession of assets from the private field, along

with the concession of assets from the public field justified, since this is the current rule, at

least under the aspect of the existing regulation? The inconsistence of the Romanian

legislation in the field and the impossibility of its entire adaptation to the transformations

incurred (for example, the integration into the European space) postpone the answer to this

controversy.

Is there confusion between the concession agreements with other categories of

agreements, especially the public-private partnership? This is another aspect that we deem

relevant to intercept as many details as possible regarding the concession-related judicial

institution.

The causes that justified this approach are multiple, and the necessity to continue the

research becomes indispensable. This study is intended to open the “Pandora’s Box”, to

trigger more questions than answers pretending the absolute truth, to propose guiding lines in

subsequent analytical approaches.

Nevertheless, the most relevant motivation of this paper’s draft is traced by the evolution

of the European legislation in the field of public agreements and by its impact on the

concession agreement and implicitly, on the national legislation in the field. This relevance is

more prominent if we take into account both recent modifications of the European legal

frame as well as of the perspective of the European Union over concession by the

enforcement of the new Directives 2014/23/CE on concessions, 2014/24/CE on public

procurements and 2014/25/CE on community services.

This new approach shall bring the concession-related institution on the first plan, since

these directives must be transposed into the legislation of the Member States until the spring

of 2016. What will be the accomplishment tendencies of this transposition? Will the

established term be complied with? How will the transposition be complied with? These are

some questions that demonstrate the utility and contemporaneousness of the subject

approached.

An omnipresent constancy in the paper, irrespective of the analysed concession

agreement, is represented by the public interest and its significance in performing public

works, the occupancy of the public field, the provision of public services and especially in

establishing the legal nature of oil concession and mining concession. In this context, we

wonder if there is a real contrariety between the protection of the general interest and the

competitive rules promoted by the European law, or this apparent antagonism can be replaced

with efficient means of public interest protection if concession agreements are concluded

with private investors on exploration of subsoil wealth.

The arguments of the continuous presence of the public interest in concession agreements

can also be found in the international legislation, jurisprudence or doctrine, as well as in

study cases that can act as “patterns” to follow – generated by social and economic

disquietude – either we refer to States in Europe, South America or other remote States (for

example, Papua New Guinea).

The invocation of the public interest and State sovereignty represented the fundamental

aspect of State measures on renegotiation of agreements, considered as prevailing over the

their mandatory judicial force.

The “Roșia Montană” case represents, in the Romanian space, the applicative-hypothetic

point of analyzed theoretical notions, presented – including by comparison with other States –

in trying to demonstrate that taking into account public interest is mandatory especially under

the aspect of the impact of the legal effects related to the concession agreement.

For that matter, the comparative method is essential to our research and represented an

efficient means to develop, from evolutionary perspective, the concession in the Romanian

space. At the same time, I have followed a presentation and a comparative approach of the

legislation pertaining to long-experienced States in the concession field, without restrictions

to the European space.

In addition, the presentation of resemblances and differences between different similar

institutions pertaining to internal law and respectively the international law – for example, the

public-private partnership, affermage (lease), emphyteusis, production-sharing agreements –

proposes to lead to a real apprehension and delimitation of the concession related institution

and of its specificity.

The delimitation of the concession of public works in relation with other types of

agreements, of which the object is execution of public works, creates the possibility to

identify the most appropriate type of agreement applicable, in relation with the parties’ will

as well as with the comprehension of a very important notion, insufficiently explored in the

Romanian doctrine.

Not least, the paper intends to emphasize the inconsistencies from the internal legislative

process and the risk created by the confusion between the concession of public works and

other types of agreements with similar characteristics, as well as the criteria according to

which the “force relation” is established between different types of concessions and which

one is preeminent in relation with the other (for example, concession of public assets,

concession of public services).

It often happens that it involves a “return to origins”, an approach to casuistry and

conjuncture of the advent of several connected institutions on which the concession grounds

were subsequently built: public domain, private domain, public service, general interest,

public work, public work’s result. This is the reason why the memory of the philosophic

ideas issued and cultivated during the French Revolution and not only (Robespierre, Volney,

Hegel) contributes to humanization of a quite technical institution as concession is.

The European legislation and jurisprudence represents the corollary of concession

characteristics, as well as of its delimitation conditions according to the exploitive object and

of the procedure that must be undergone for concession assignment. Unfortunately, the

differences between the internal and the European legislation are remarkable, on one side

because of additions to the European legislation that are unjustifiably found in the internal

legislation, and on the other side, due to the absence from the internal legislation of European

regulations.

The historical method was used to emphasize both the European legislative trajectory as

well as the legal regime of the elements composing the concession agreement, which are

found in both Romania as well as other States of the world.

The sociological method is considered of great importance so as to determine the context

in which the judicial regime followed a certain trajectory, the causes determining the

development of a doctrine-based theory and their consequences into the legal regulations.

Thus, for example, the communist regime from Romania did not use the notion of public

domain and consequently, it never related to the distinction between public property and

private property; the legal regime applicable to the subsoil wealth was the reflection of the

inter-war period of the policy titled “through ourselves”, which represented the

nationalization of natural resources and the exclusion of foreign companies from exploring

oil without Romanian participation; the European unique market generated the application of

competitive assignment procedures on concession, etc.

The paper is structured in four main chapters, as follows: 1. “Concessions of public assets

and private assets”, 2. “Concession of public works”, 3. “Concession of public services”, 4.

“Concession regulated by special laws. Oil and mining concession”, each of them containing

sections and paragraphs delimitating as clear as possible the analyzed aspects.

The structure of the entire scientific research was thought so that it contains the most

important applicative aspects in concession matters, from the perspective of the four

significant categories hereinbefore mentioned.

Chapter I is entitled “Concessions of public assets and private assets” and it analyzes

several aspects of which we exemplify the following: the origins of the notion concession of

public assets, the legal nature of the concession agreement, the evolution of the Romanian

legislation and international legislation in the field, the application domain related to

concession agreement of public property assets, the object related to concession of private

property assets as well as the forest concession – species of the concession agreement of

public property assets.

The identity itself of the concession right was formed following the search of a “formula”

to explore the assets that are subject to perpetuity and that cannot be appropriated. We

consider that the legal nature of the concession agreement is closely connected to the

distinction between the public and private domain, which derives from it.

The theory of the general interest, supported by the classic authors of the French doctrine

as Maurice Hauriou, Roger Bonnard3, and respectively, the theory of public service,

promoted by Leon Duguit4 had a determining role in consolidating the identity of the

concession right under the aspect of necessity and respectively of its legal nature.

According to the first mentioned theory, the administrative field is divided in two

categories: public field and private field5, the public field being allotted to general interest.

Since the assets of the public field follow an exorbitant regime to the common law, they are

considered as inalienable and indefeasible and in consequence, the concession is distinct from

the property right, emerging from the need to simplify the exploration of economic utilities,

of natural resources considered as assets, as collective wealth. 3 For details, Maurice Hauriou, Précis de droit administratif, Sirey, Paris, 1927; Roger Bonnard, Précis de droit administratif, R.Pichon et R.Durand-Anzias, Administrateurs, 2éme Edition, 1940. 4 For details, Leon Duguit, Traité de droit constitutionnel, vol. 3, Paris, 1923. 5 Erast Diti Tarangul, Tratat de drept administrativ, Ed. Glasul Bucovinei, Cernăuţi, 1944, p.355.

According to the second theory, the theory of public service, the fundamental aspect in

itself related to public domain is the idea of allocation to the public service6. On the other

side, the private field is not subject to a special legal frame, since the assets forming it are not

allotted to general use, to the use of all.

Initially, the perpetuity was the grounds for the assertion from the French doctrine

according to which the administration cannot own the public domain and the public assets

cannot make the object of the property right. Thus, Henry Berthélémy defended the thesis of

legal impossibility for appropriation of the public assets. The idea was later on taken over

into the Romanian doctrine7.

Conversely, the major French doctrine, dominated by representatives of the civil law,

recognized to the administration a property right over the public field based upon its

perpetuity and based upon the adoption of the criterion according of common use.

In our country, the perpetuity of public field was allotted a relative character ever since

the inter-war period and it was admitted that certain immovable assets can make the object of

the concession, permission or temporary occupancy, starting from the principle of allotting

them to the use of all, but only for the purpose for which it was allotted8.

In the Romanian doctrine, there was a delineation of the public service theory, according

to which the public field contains all assets allotted to a public service9, and the general

public interest is subsumed to the notion of public service, as its essential element.

From here, it resulted that the essence of the concession agreement is that the licensee

business provide a public service10.

The second theory, the theory of general interest, was based upon allotment of public

assets to a general interest to which it corresponds, as we have previously mentioned, an

“exorbitant special judicial regime”11. Starting from such distinctions appropriated by the

Romanian doctrine ever since the pre-war period, it resulted the administrative legal nature of

the concession agreement on public assets, which prevailed over its civil or commercial

6 Liviu Giurgiu, Consideraţii în legătură cu domeniul public, Revista Dreptul nr.8/1995, p.34-42. 7 Erast Diti Tarangul, op.cit., p.358; Hamangiu, Constantin; Rosetti-Bălănescu; Băicoianu Alexandru, Tratat de drept civil român, vol.II, Ed.All Beck, Bucureşti, 2002, p.150. 8 Erast Diti Tarangul, op.cit, p.366. 9 Constantin Rarincescu, Drept administrativ, Ed.Emil Stănescu, Bucureşti, 1926-1927, p.143. 10 Constantin Rarincescu, Teoria serviciului public, Ed.Cursurilor litografiate, Bucureşti, 1941, p.199. 11 Erast Diti Tarangul, op.cit, p.359; Paul Negulescu, Drept administrativ, vol.I, ed.a-II-a, Ed.Gutenberg, Bucureşti, 1906, p.305.

characteristic by taking into account the general interest which always came first after the

lessee’s private interest12.

In the post-December period, the existence of the distinction between the public domain

and the private domain became incontestable, and yet the permissive attitude regarding the

exertion of the concession right over the private assets and therefore, not only over the public

assets, gave birth and then amplified a state of confusion fuelled by a deficient legal frame, as

it shall result later on.

The Romanian doctrine of the nineties emphasized that the recognition of the allotment of

public assets to a public service or the allotment to public utilities13 - unlike the private

assets, as we would put it – nuances the importance of the distinction between public field

and private field, especially under the aspect of the restrictions of the concession related

object.

Is it necessary, taking into account the evolving trajectory of the Romanian legislation in

the field, to find a legal frame appropriate to regulation of the concessions related to private

assets or is it indicated to annul it and to substitute it with more appropriate levers, such as,

the lease, for example?

Will thus the concession remain the exclusive privilege of public assets? Next, we shall

try to identify and analyze the difficulties that the Romanian legislation characterizes

nowadays the correlation public field – private field, as well as the judicial institution of the

concession.

Since the present research paper refers to both concessions of public property assets as

well as private property assets, we considered that our approach could not continue without

analyzing first the importance of the public interest as an essential criterion of concession

agreements.

As regards the public assets, they are applied an exorbitant judicial regime, derogatory

from the common law due to the public interest that intends to be satisfied by their use14. In

consequence, the exploration of such assets cannot abstract from the public interest – which

became a central element of the concession, and found sine qua non into the content of the

12 Idem, p.368; Paul Negulescu, op.cit., p.282; Paul Negulescu, Tratat de drept administrativ, București, Ed.Gutenberg, 1903-1904, p.14. 13 Dana Apostol Tofan, op.cit., p.90; Antonie Iorgovan, op.cit., p.125; Ion Filipescu, Domeniul public şi privat al statului şi al unităţilor administrativ-teritoriale, Revista Dreptul nr.5-6/1994, p.77-79; The latter author mentions the distinction between the allotment of the asset for the direct use of the public and the allotment of a public service. 14 Dana Apostol Tofan, Regimul juridic aplicabil proprietății publice. Implicații în activitatea autorităților administrației publice, Analele Universității București, seria Drept, nr.2012-I, Ed.C.H.Beck, București, p.13.

concession agreement and permanently taken into account for the shaping of the purpose for

which it was concluded.

Regarded as lato sensu, the concession is a form of public service management, and in

consequence, of general interest management, to which we relate, indissolubly, the notion of

public service. The logical consequence of the created syllogism is that the concession

agreement must always be concluded for the public interest. It is the exclusive manner by

which we can apply the balance principle between the general interest and the individual’s

interest to obtain profit15.

The concession agreement that does not take into account the compliance with the public

interest upon its conclusion, shall not be effective. Thus, the jurisprudence adopted the

sanction related to nullity of the concession agreement16, and the doctrine even defended the

intervention of the sanction of inexistence of the legal act when the “agents of the

administrative person take a private measure beyond the public interest sphere”17.

The public property assets do not have to be taken for “public interest assets”, as the latter

can be part of the public field and private field of the State or administrative – territorial

units, but also of the private property of individuals. Thus, the public interest assets were

defined as the assets “meant to be used within an activity that concerns all members of the

society, although they cannot be used by any individual, for example, the lands on which

schools, libraries, theatres, museums are placed”18.

Following the analysis of the Romanian legislation, both from historical as well as from

the enforceable regulations, to our opinion, the concession related institution cannot represent

anymore a means to valorise the private property asserts of the State of administrative-

territorial units. To this regard, we refer to the tendencies of the legislation drafted and

subsequently enforced Emergency Government Ordinance 54/2006, among which the most

illustrative example is the current Romanian civil law, to which the stipulations in the field

we already referred in the section related to the legal frame applicable to public assets. In

addition, we emphasize once more that pursuant to article 136, paragraph 4) of the Romanian 15 Dana Apostol Tofan, Le Partenariat public-privé, Analele Universităţii Bucureşti, Seria Drept, nr.II/2005, p.51. Although the object of the study is represented by public-private partnership, we allow an extrapolation to concession of public property assets, to support the idea of the necessity to maintain the concession exclusively to public property assets, and not private. 16 The same conclusion, but another reasoning, is depicted from Decision number 1247/24.05.2000 of Cluj Court of Appeal, Civil Section, which sentenced the partial nullity of the concession agreement under Law 50/1991, by which the con-assignor did not comply with the public road destination related to a land and leased part of it for private interest. To this regard, Cătălin Silviu Săraru, Discuţii în legătură cu inexistenţa și nulitatea contractelor administrative, Revista Dreptul nr.6/2008, p.148. 17 Cătălin Silviu Săraru, loc.cit., p.146. 18 Rodica Narcisa Petrescu, Drept administrativ, Ed.Hamangiu, București, 2009, p.256.

constitution, the concession’s object is represented by public property assets, and pursuant to

article 866 of the Romanian civil law, the concession is a real right corresponding to public

property.

As regards the forest concession, we appreciate that the Romanian law assimilates it to the

concession of public property law, but which it nevertheless regulates by a special regulatory

document, taking into account the derogatory document of the forestry real estate public

property.

The assimilation of the forest concession to a public service concession seems desirable in

the context of compulsoriness in deployment of a management activity related to forest

sustainability, which is necessary especially due to the long term of the agreement. Thus, as

regards the concession of tropical forests, the re-shaping of the agreement is promoted by

inclusion of new forest products and environmental protection values as well as of the

advantages experienced by the community.

The second chapter titled “Concession of public works” tackles the most relevant aspects

related to this contractual category, starting from the delimitation of the notion public work

and continuing with the risk analysis – main criterion to delimitate the concession agreement

from public works.

An important segment of this chapter is represented by the comparison between the public

works concession agreement and other similar categories of administrative agreements, such

as the emphyteutic lease agreement, mixed economy society, public purchase agreement,

autonomous companies and especially the public – private partnership.

The dynamics of investments and economy in general led to both “diversification and

specialization of the sources pertaining to the law of public agreements as well as to a

practice of actions undertaken by third parties or other parties”19, generating, in their turn, “a

complexity and judicial insecurity”.

This tendency is outlined not only in the French law but also in the international law, and

it is regarded as a sum of regulations pertaining to different categories of administrative

agreements and it is reflected into the Romanian legislation as well.

Within the context of integration to European Union, we consider it is necessary to know

the contractual samples similar to the public works concession from the law of other States.

In addition, within the context of economic globalization, the knowledge of such agreements’ 19 Jean-Marc Sauvé, L’actualité du contentieux des contrats publics, discurs din data de 27 iunie 2014, accesat la http://www.conseil-etat.fr/Actualites/Discours-Interventions/L-actualite-du-contentieux-des-contrats-publics, în data de 1 martie 2015.

characteristics must cross the borders of the European space, since the tendency will be to

establish frame-agreements to include the most important of them.

All categories of agreements enumerated, although different in certain aspects, are

sometimes quite difficult to identify; their common things is that they are administrative

agreements, public management documents.

This is why, for identifying the specificity and relevance of the categories of

administrative/ public agreements that resemble sometimes until confusion, but that are

delimitated from the public works concessions, we made a synthesis of such agreements.

This analysis is relevant in choosing the most appropriate agreement that meets the public

interest and the most efficient management of the public asset, in compliance with the new

principle of administrative freedom exerted by the public authorities, regulated by article 2

from Directive 23/2014/EC. According to such principle – that we considered inspired from

the principle of contractual freedom of the civil law, but adapted to the specificity of the

administrative (public) agreement – the authorities are free to decide the best variant for the

administration of their works’ execution.

In individual, we could consider that, according to the current regulation, the PPP

agreement has a “chameleon-like” nature, taking the shape of either public procurement or

the concession. Nevertheless, according to article 10 of Law 178/2010, the following are not

object of the law: public works concession agreements and service concession agreements,

regulated by the Emergency Government Ordinance 34/2006, as well as the concession

agreements of public property assets. In consequence, any similarity or assimilation of the

public works concession agreement to the public – private partnership or vice-versa is

excluded.

By the logical interpretation of the enforceable legal stipulations on PPP, it results that

this category of agreements can be eventually classified as pertaining to public procurement

agreements. It was deemed that the appurtenance of PPP agreement to the categories of

public procurement agreements results from the stipulations of article 40 from Law 178/2010,

according to which the competent supervising authority in the field of public procurements

extends its competences over PPP as well.

Initially, the hypothesis to subsume the PPP to the public works procurement agreement

was not supported by an identity between the assignment procedure of PPP agreement

regulated by Law 178/2010 and the assignment procedure of the public works procurement

agreement regulated by Emergency Government Ordinance 34/2006. In addition, Law

178/2010 contains public tender procedures other than those from concessions, and in its

initial form, the assignment of PPP based on the negotiation procedure.

By the amendments and additions brought to the law by the Emergency Government

Ordinance 86/201120, article 18 was nevertheless completely modified in the sense that it

allowed the assignment of partnership agreements by the open procedure or by the

competitive dialogue procedure, pursuant to the terms imposed by the law.

Contrary to the assimilation of PPP agreement to the public procurement agreement, the

Romanian government expressed itself, as it results from the Decision of the Constitutional

Court no. 390/2014 on the non-constitutionality objection of stipulations of article 38,

paragraph (1) and of article 42 of Law on PPP. Thus, according to point 35 of the mentioned

decision, the Constitutional Court apprehended the Government’s standpoint, according to

which PPP is not included in thE public procurement agreement sphere, but in the concession

agreement sphere, and yet it appreciated that the referral to the legal stipulations was an

erroneous one, as Emergency Government Ordinance 54/2006 was invoked and not the frame

law Emergency Government Ordinance 34/2006.

The difference between the two categories of agreements is risk sharing. Thus, if in case

of concession, the preponderant risk belongs to the concessionaire, in case of PPP, the risk is

shared on a pro rata and equitable basis between the public and private partner, according to

the participation of the public partner into the project, under the exclusive form of

contribution in kind [article 4, letter f)].

In France, for example, the costs and risks are two factors leading to preference of the

partnership agreement over the concession agreement. The risks are divided between the

private and State operator, unlike in case of the concession agreement, and the costs are

reduced through establishment of guarantees, re-financing and insurance specific to the

private law, including a direct remuneration of the investor by the State.

In conclusion, the French law mentioned the assertion according to which the concession

encounters a decline as opposed to other types of agreements, since, while the PPP agreement

allows the risk sharing between the public authority and the private investor, the concession

is recognized by the transfer of risks on account of the concessionaire. We consider this

supported aspect as ungrounded given an imminent transposition of Directive 2014/23/CE on

concession into EU States and implicitly French law.

20 Published in the Romanian Official Gazette number 729 as of 17 October 2011

Regarding the assignment procedure of the public works concession agreement, I

analyzed the European legal frame on public works’ concession, the national legal frame on

assignment of public works concession agreement, as well as succinct aspects from other

states’ law.

At European level, either we refer to the Treaty of Rome (1957) or to the subsequent

Treaties of Maastricht (1992), Amsterdam (1999), Nice (2000) or Lisbon (2009), none of

them contains regulation on public agreements and even less about the concession agreement.

Nevertheless, it is undeniable that the general principles contained in CEE treaties “affect the

public agreements beyond the limits defined by the directives subsequent to public

agreements”21, and the secondary legislation represented by directives was adopted according

to the primary legislation, represented by treaties, according to article 95 EC, at present

article 114 TFUE.

Directive 71/305/CEE on coordination of the assignment procedures of public works

agreements22 was the first regulatory document that brought special regulations in terms of

public works’ concessions, followed by Directive 93/37/CEE as of 14 June 1993 on

coordination of assignment procedures of public works agreements23. This was abrogated by

Directive 2004/18/CE on coordination of the assignment procedures of public works

agreements for the procurement of products and services, which was transposed into the

Romanian legislation, along with Directive 2004/17/CE on coordination of the assignment

procedures of procurement agreements in the fields of water, energy, transport and mailing

services, by the Emergency Government Ordinance no. 34/2006 and through the

Methodological norms for the application of the stipulations on assignment of public

procurement agreements from the content of the hereinbefore mentioned ordinance approved

by Government Decision number 925/200624.

Directive 89/665/CEE of the Council as of 31 December 1989 for coordination of the

legal acts and administrative acts on application of the procedures intended for the means of

appeal allocated to agreements for public procurement of products and public works’

agreements25 incurred amendments brought by article 46 of Directive 2014/24/CE, and yet it

shall be enforceable and shall be exclusively applied to works concession agreements as they

are regulated by the hereinbefore mentioned directive. Amendments were brought by article

21 CJUE, cauza C-324/98, Telaustria Verlags Gmbh, hotărâre din 7 decembrie 2000, ECR 2000, I-10770. 22 JO L 185, 16/08/1971, p.5. 23 JO L 199, 09/08/1993, p.0054-0083. 24 Published in the Romanian Official Gazette number 625 as of 20 July 2006. 25 JO L 395, 30.12.1989, p.33.

46 to Directive 92/13/CEE26, for the coordination of the legal acts and administrative acts

related to application of the community norms on public procurement procedures of the

entities deploying activities in water, energy, transport and telecommunication field27, in

order to ensure an “appropriate jurisdictional protection of candidates and tenderers within

the concession assignment procedure, as well as to ensure the effective implementation of the

directive related norms”28.

As regards the national legal frame, the source of the public works concession agreements

is currently represented by the Emergency Government Ordinance no. 34/2006, upon

subsequent amendments and additions. This regulatory document, although ample, regulates

the public works concession agreement in Chapter VII, articles 217-225 only.

In consequence, the government issued the Application Norms for the stipulations on

assignment of public works concession agreements and service concession agreements

stipulated by the Emergency Government Ordinance no. 34/2006 on assignment of public

procurement agreements, public works concession agreements and service concession

agreements approved by Government Decision number 71/200729.

The norms detail aspects on delimitation of the concession related notion from the public

procurement related notion regarding the contractual period as well as regarding the

assignment procedure for public works concession, by making a few references to certain

stipulations of Emergency Government Ordinance no. 34/2006.

The elaboration of the assignment documentation of public works concession agreements

is performed pursuant to the stipulations of article 33, paragraphs 2 – 5 of section 2-a of

Chapter V, sections 2-5 of chapter III from Emergency Government Ordinance no. 34/2006.

Preliminary to the analysis of the fulfilment of the contractual assignment criteria, there is

an analysis over the tenders based upon pre-established qualification and selection criteria.

Thus, the assignment criteria shall not be taken for qualification criteria, as the former are

related to the selected tenderers only.

The qualification and selection criteria are regulated in article 176 of Emergency

Government Ordinance no. 34/2006 and in article 17 of application norms of Emergency

Government Ordinance no. 34/2006, approved by Government Decision no. 71/2007,

26 Directives 92/13/CEE and 89/665/CEE were mended by Directive 2007/66/CE on the improvement of the efficiency regarding the means of appeal upon assignment of public procurement agreements, JO L 335, 20.12.2007, p.31-46. 27 JO L 76, 23.03.1992, p.14. Directive 92/13/CEE was transposed into the Romanian legislation by the same Emergency Government Ordinance number 34/2006. 28 Point 81 from the preamble of Directive 2014/23/CE 29 Published in the Romanian Official Gazette number 98 as of 8 February 2007

detailed in article 7 of the application norms of Emergency Government Ordinance no.

34/2006, approved by Government Decision no. 925/2006: “The contracting authority is

entitled to apply qualification and selection criteria exclusively related to: a) personal status

of the candidate or tenderer; b) capacity to exert the professional activity, c) economic and

financial status, d) technical and/or professional capacity; e) quality insurance standards; f)

environmental protection standards”.

According to article 18, paragraph (2) of the application norms to Emergency

Government Ordinance 34/2006, approved by Government Decision no. 71/2007, the

assignment criteria can refer, as the case may be, to the following: a) tariff levels paid by

final beneficiaries; b) royalty level; c) risk takeover by the concessionaire; d) submitted

financing and development plans; e) qualitative, technical and functional level of the

proposed technical solutions; f) assurance method of the environmental protection; g)

settlement method of social problems; h) investment fulfilment terms; i) concession period.

According to article 39 of the application norms approved by Government Decision no.

71/2007, corroborated with the stipulations of article 200 of Emergency Government

Ordinance 34/2006, the winning tender shall be established from the admissible tenders,

“based upon the assignment criterion stipulated into the call for tender/ participation

notification and into the assignment documentation”. The stipulations of Emergency

Government Ordinance 34/2006 regulate nevertheless the assignment criterion for the public

procurement agreement. Thus, according to article 199 of Emergency Government Ordinance

34/2006, the assignment criterion for the public procurement agreement can be the most

advantageous tender from economic point of view or, exclusively, the tender on the lowest

price. Such alternative assignment criteria cannot apply to the public works concession

agreement or to service concession agreement, since the notion of price is not specified in the

last category of mentioned agreements. The assignment of public works concession

agreement supposes nevertheless the compliance with the right of the contracting authority to

request to the concessionaire to assign to third parties, based upon conclusion of agreements,

a minimum of 30% from the total amount of the works that make the object of the

concession.

Given this context, we consider it is important to underline the difference of judicial

regime between the sub-concession and subcontracting. As we have previously mentioned,

the law stipulates the mandatory criterion of subcontracting of the concessionaire of a

minimum of 30% from the total amount of the works. This means that public procurement

agreements shall be concluded according to a special procedure regulated by Emergency

Government Ordinance 34/2006. On the other side, the exploration right is intuitu personae

and it cannot make the object of sub-concession. Therefore, the sub-concession is exceptional

and it depends on the express will of the con-assignor.

We observe that the lawgiver regulated, in a different manner, the assignment procedure

for each type of agreement, be it a public procurement, concession or partnership. In

inconsistence in approaching such categories of agreements was determined by the absence

of a creating vision on a unitary legislative frame, by the absence of a codification in the field

of administrative agreements in a complex regulatory document, by elaboration and

enforcement of a specific legislation at long intervals of time and by a different judicial

optics.

The issues caused by the inconsistence of the legislation that the contracting authorities

cope with are doubled by the necessity to establish certain relations between such regulatory

documents (Emergency Government Ordinance 54/2006, Emergency Government Ordinance

34/2006, Law no. 178/2010), according to the derogatory principle called generalibus

specialia, as well as by the transposition method of the European legal frame in the field.

The third chapter of the research is addressed to concession of public services.

In Europe, as regards the public service, there are two trends: 1) the first trend is found in

France and Germany. The French conception is characterized by a contractual method to

manage public services, but under State authority or by means of a method conceived for

maintaining the monopoly or direct or indirect control of the State over certain sectors and

the German conception is characterized by the mixed character of the economy; 2) the second

trend is found in Great Britain and European Union. The British conception is characterized

by market liberalization, by breaking the State monopoly, by favouring competition in

providing the public service. The European conception in terms of public services is

characterized by deployment of an indispensable qualitative activity, accessible to all,

accompanied by the charge of reasonable tariffs.

The European conception is inspired from the Anglo-Saxon law, to the detriment of the

Germanic or French law.

The Romanian inter-war administrative doctrine, although displayed two contrary

opinions, one establishing as criterion the authority that makes available the service and the

other one establishing the criterion according to which the general interest is satisfied, it was

admitted that the latter corresponds to the essential character of the public service.

The relativity of the notion general interest results from the subjective theory according to

which the qualification of the service as being public depends on the public power. Therefore,

the limits of the general interest depend on the subjective (but not arbitrary) appreciation of

the public authority. The difficulty in defining the notion general interest is caused by its

appurtenance, to the category of undetermined concepts that impose, on behalf of the

administration, several actions for a correct determination of abstract situations – as we have

mentioned in the presentation context of the general interest theory, within the concession

agreement of public property assets.

The French doctrine delimitated public services in essential State services and optional

services. The last category included the following services: transports, mining and forest

exploitations, services addressed to agricultural, industrial and commercial development,

education services, etc.

The implications related to operation of a public service are major, starting from its

essential character of general interest activity. This is the reason why, through one of its

decision30, the Romanian Constitutional Court stated that the State must ensure the control

mechanisms of private activities fulfilling attributions connected to organization of a public

service.

The administration of the public service by an individual must always be intended to

satisfy a public interest, although that individual obviously intends to obtain personal profit.

In other words, the obtaining of the desired profit must not contradict the general interest and

the concession must not generate the destruction of public wealth and national patrimony31.

The general interest is foreground and it prevails over the private interest of the

concessionaire is the very quintessence of the principle on public service continuity, with its

implications. Thus, the right to unilaterally amend the agreement by the co-assignor is based

on the necessity to comply with the general interest and in consequence, on the necessity to

adapt the public service according to the modifications occurred in the general interest. In

addition, the principle of financial balance does not express anything but the reconciliation of

the two interests: general interest and personal interest of making profit.

The public interest is considered as “purpose of the concession agreement” in the

jurisprudence of the Saudi Arabia as well, according to which an agreement by which the

private corporation was obliged to build a lighting traffic system is considered administrative

30 Constitutional Court Decision no. 1636 as of 10 December 2009 on the non-constitutionality of Law no. 335/2007 on amendment and addition of Law 26/1990 on Trade Register 31 Antonie Iorgovan, Tratat de drept administrativ, vol.II, ediţia a-IV-a, Ed.All Beck, Bucureşti, 2005, p.185.

taking into account that “any activity formed, managed and supervised by a public agency

intended to satisfy the public needs is considered of public interest”32.

A second identification criterion of the public service is represented by the confidence by

the public authority of the public service accomplishment.

Although initially, as we have mentioned hereinbefore, the public service could be

rendered exclusively by the person of public law and upon valorisation of the public assets,

this conception evolved nowadays, and the public service is accepted as operating beyond the

artificial delimitation, the public activity – private activity.

Upon the gradual involvement of the State in activities specific to the private sector, the

delimitation between the public services, which were either the attribute of direct

achievements by the State public authorities, or the attribute of accepting their achievement

by means of private structures, became blurred. In an extensive interpretation of the public

service sphere that can be managed by the latter structures, G. Jéze33 even admitted the

concession to an individual of a public service under monopoly (for example, manufacturing

of armament for the purpose of defending the country, s.n.), asserting that the public services,

object of concession, can be represented under the form legal monopoly, factual monopoly or

under no monopoly. Nevertheless, certain public services remain under State exclusivity,

such as the right to coin.

As regards the operation principles that the public service must comply with, we

considered that the first in terms of importance is the competition principle.

In the Romanian legal space, noncompliance with the competition principle is invoked

into the Decision of the Romanian Constitutional Court no. 533/2004 regarding the exception

from non-constitutionality of the stipulations of article 72, paragraph (1) of the Government

Emergency no. 22/1999 on administration of harbours and watercourses and of article 84,

paragraph (1), letter b) and article 85 of the Government Emergency no. 42/1997 on naval

transport34, which stipulates that there can be no invocation on transgression of the

stipulations of market and competition economy when it comes to concession of a public

piloting service. This category of public service supposes the participation in the tender

process of candidates that consider themselves capable of becoming concessionaires and thus

who can cope with the competitive environment dictated by a market economy. The assertion

32 Decision of the Council of Complaints no. 138/T/I (1989), Decision of the Council of Complaints no. 62/T/3 (1987), quoted by Ayoub M.Al-Jarbou, op.cit., p.79. 33 Antonie Iorgovan, op.cit., p.182; Georges Dupuis, Marie-José Guédon, Patrice Chrétien, op.cit., p.553. 34 Published in the Romanian Official Gazette, Part I, no. 90 as of 27 January 2005. Revista Curierul Judiciar nr. 2/2005, p.30-31.

of the establishment of a monopoly of the harbour administration in such naval transport

cases was considered by the Court as irrelevant, the lawgiver being entitled to establish a

certain regime, as the one regulated by article 72, paragraph (1) of the Government Ordinance

22/1999, according to which “(...) after concession, the public service shall only be provided

by the concessionaire (...)”.

In consequence, following the trajectory of the assignment competition procedure, the

harbour administration can assign the related activity to a single beneficiary, in considering

the importance of such public service for the navigation safety and for the operational use of

harbours under public property.

A real competition can only be guaranteed by assuring the transparency of the assignment

procedure on concession agreements. After the conclusion of the concession agreement, it is

also necessary to undergo a control procedure that ensures the transparency of the execution

method of contractual clauses.

We allow ourselves to extrapolate the assertions of the Romanian doctrine related to

public service privatization agreements. Thus, it was asserted that non-operational services

must be privatized only, in order to prevent the privatization transformation into a scope in

itself35. To this regard, we signal the lack in monitoring the way in which the public service

provider fulfils the privatization contractual terms, as well as the necessity to regulate certain

principles in the future administrative code that governs the transfer of services based upon

the transparency and pre-eminence of the public interest36.

The European law supported the compulsoriness related to compliance with a competitive

regime in the concession assignment procedure or public procurement assignment procedure,

except for the cases regulated by article 106, paragraph (2) of TFUE (former article 86 TCE),

according to which the public enterprises in charge of the management of general economic

interest services are subject to competition, “within the limits in which the application of such

rules does not obstruct the provision of the public service of which the enterprise is in

charge”37. By virtue of such dispositions, the European Court of Justice allowed derogations

from the competitive rules in two cases: when the financial balance is threatened and when

the operation of the public service becomes impossible.

35 Verginia Vedinaș, Aspects of the privatization of public services (Aspecte ale privatizării serviciilor publice), Juridical Tribune Review, vol.2, nr.2, 2012, p.8. 36 Idem, p.11. 37 Georges Dupuis, Marie-José Guédon, Patrice Chrétien, op.cit., p.559; Robin Barton, op.cit., p.588 (584-605). CJUE, C-41/90, Höfner and Elser/Macroton, hotărâre din 23 aprilie 1991, ECR 1991, p.I-1979.

Nevertheless, for an efficient application of the European norms in the competition field,

of article 101 and article 102 of TFUE (former articles 81 and 82 of CE Treaty), on 16

December 2002, the European Council adopted the CE Regulation no. 1/2003 on the

enforcement of the competition related norms stipulated by article 81-82 din TCE38.

This regulation was amended by (CE) Regulation number 411/200439 and by Regulation

number 1419/200640. According to article 17 paragraph (1) of this regulation, when the

evolution of changes between the Member States, stiffness of prices or other circumstances

suggest the possibility of competition confinement or deformation within the common

market, the Commission can initiate an investigation regarding a certain sector of the

economy or regarding a certain type of agreement in different sectors.

The competition related principle was taken over by the doctrine and by the internal

legislation of the Member States, of which Belgium is exemplifying.

Thus, according to the Belgian legal frame – article 56 of Law on public procurements

and several acquisitions of works, furnishings and services from 200641, the decision-making

authority treats the service providers as equal, in a non-discriminatory and transparent

manner, from which it results that the purchases (and implicitly the concession assignment)

are assigned after submitted to competition.

In France, until the implementation of Law no. 93-122 as of 29 January 1993 on

prevention of corruption and transparency of the economic field and public procedures, the

sole obligation of the administration was to examine the candidacies without the obligation of

undergoing a competition-based procedure. However, subsequently, this procedure was

drafted, aspect that was signalled in the jurisprudence as well42.

In Spain, due to the fact that the significance of the public service notion was close to the

French model, there was a tight relation between the State and the service, which led to

adoption of a special judicial regime, derogatory from the common law.

In the electricity field, in France, Ireland, Italy, Greece and Portugal there is a national

public monopoly. In Germany, the Netherlands and Luxembourg there is a system based on

mixed capital companies, and in Great Britain, Spain, Belgium, there is a competitive system

based on private management.

38 JO L 1, 04/01/2003, intrat în vigoare la 24.04.2003. 39 JO L 68, 06/03/2004, intrat în vigoare la 09.03.2004. 40 JO L 269, 28/09/2006, intrat în vigoare la 18.10.2006. 41 Publicată în Moniteur Belge din 15 februarie 2007, p.7355, C-2006/21341. 42 Raportul Consiliului de Stat intitulat „Réflexions sur l’intérêt général” (1999), http://www.conseil-etat.fr/node.php?articleid=430 (accesat în 13 august 2014).

The European construction led to cancellation of the State monopoly and shaped the

principle of economic liberalism, intending to find the “correct balance” between the public

intervention for the benefit of the general interest and the application of competition based

rules. This does not mean, however, that they shall be applied in compliance with the

specificity of public services provided as a mission to satisfy the public interest. At the level

of the Member States, the administration method of the public services must remain “the

expression of a judicial approach connected to the public law and to the administrative

jurisdiction”43.

The principle of continuity starts from its purpose – satisfaction of the general interest,

and the continuity of the public service is one of the essential characteristics of the public

service. Yet, the concession is a real law of administrative nature, being affected by

precariousness. Thus, the appreciation over the affection opportunity pertains to the co-

assignor, which can unilaterally revoke the agreement. The concessionaire cannot oppose, as

it only has the right to grant a compensation for the break of the financial balance.

This principle is also mentioned by the Law of community public utility services number

51/2006, along with other essential principles specific to general interest. Thus, article 7,

paragraph (1) of Law 51/2006, republished, upon subsequent amendments and additions,

mentions that the public utility services are subject to the judicial regime of the public

services of general interest, being applied the public service obligations defined in

accordance with the following grounded requirements/ exigencies, i.e.: a) universality, b)

continuity from qualitative and quantitative standpoint, pursuant to regulated contractual

terms, c) adaptability to the users’ requirements and long-term management, d) equal and

non-discriminatory accessibility to public service, pursuant to regulated contractual terms, e)

decisional transparency and users’ protection.

The principle of public service adaptation is characterized by the fact that the public

service evolves according to the social needs to which it must adapt.

In addition, according to the equality principle, all users are equal as regards the

advantages and obligations that the public service can procure.

The subsidiarity principle means that the public intervention is only allowed when the

private initiative is missing. This means that when the concessionaire does not fulfil its

contractual obligations, the co-assignor public authority shall be involved, thus being

substituted to the concessionaire.

43 Cătălin-Silviu Săraru, op.cit., p.10.

The accountability of the public authority for the prejudice caused within deployment of

the concession agreement is subsidiary, being only used when the concessionaire is in

insolvability. Nevertheless, the rule is the following: the concessionaire shall be the sole

responsible to remedy the damages caused.

According to the pro-rata principle, the public intervention depends on the object in view.

Pursuant to article 179, paragraph (2) of the Emergency Government Ordinance 34/2006,

upon subsequent amendments and additions, the contracting authority is obliged to comply

with the pro-rata principle when it sets the qualification and selection criteria as well as the

level of minimum requirements that the tenderers/ candidates must meet.

In the European law, according to CJUE jurisprudence, although the liberalization of

public services was promoted, competitive restriction cases were allowed, if this is necessary

for the achievement of special results. Thus, the restrictions on competition can occur if

imposed. The balance between the two aspects is the pro-rata principle subject related to

public services, principle that obstructs the risk that such restrictions be higher than

necessary, but not as limited as to lead to disappearance of the general interest services.

De lege ferenda (about the law about to be implemented), the future European norms shall

be able to regulate the following, so as to maintain the pro-rata principle: distribution of

competences among the Member States and the European Union, role of public regulation

authorities, application level of the norms on competition or rules applicable to selection of

general interest service providers.

According to the principle of neutrality, the service works by exclusively taking into

account the general interest, so that the concessionaire cannot use the public service for

procurement of personal interests to the detriment of the users’ interests.

Both the French doctrine, as well as the Romanian doctrine defined the concession of a

public service as a means for its management, according to which a public person, i.e. the co-

assignor, appoints via a legal agreement, a private person, i.e. the concessionaire, for the

operation of a public service for a certain period of time, without changing its destination and

acquiring the right to charge fees from users. An essential element for the qualification of the

agreement of public service concession is the remuneration of the concessionaire in one form

or another, by exploration of the service.

In Romania, “even before the Constitution of 1923, the concession was used by the State

as a means to exploit a public service”44. Thus, the railway law of 1905 regulated the

44 Iulian Avram, Contractele de concesiune, Ed.Rosetti, Bucureşti, 2003, p.20.

possibility to lease on a 90-year period and the law of 18 April 1909 allowed the lease of

Bucharest tramways.

At present, the Emergency Government Ordinance no. 34/2006 on assignment of public

procurement agreements, of public works agreements and service concession agreements,

approved upon amendments by Law 337/2006 is the legal grounds for the regulation of the

public service concession agreement in Romania.

Article 3, letter h) of the Emergency Government Ordinance no. 34/2006 takes over the

definition of Directive 2004/18/CE and defines the service concession agreement as the

agreement “on the same characteristics as the service agreement, with the difference that in

the trade-off of the provided services the contracting party, acting as concessionaire, receives

from the contracting authority, acting as co-assignor, the right to exploit the services on a

determined period or this right is accompanied by payment of a pre-established amount of

money”. The definition is also taken over by article 3, paragraph (1), letter b) of the

Application norms of the stipulations related to assignment of public works concession

agreements and of service agreements, stipulated in the Emergency Government Ordinance

no. 34/2006 and approved by the Government Decision 71/2007. Thus, the service

concession agreement is the agreement by means of which the contracting party, acting as

concessionaire, “receives the right to exploit the services, thus assuming the greatest

percentage of the risks related to their exploitation”.

We notice that the lawgiver chose the phrase service concession and not public service

concession. This is due to a literal transposition of the hereinbefore mentioned directive, and

yet, taking into account that such agreements are subject to the public interest, we consider

that there is an identity between the two phrases.

In other States, the service concession agreement is found under different names, but it

bears identical characteristics. For example, in Spain, pursuant to article 8 of Law 30 as of 30

October 2007, the public service management agreement is regulated, being defined as “an

agreement by which the public administration confides to a physical person or legal person

the management of a service of which the provision was assumed as personal competence of

the administration involved. This agreement shall not apply if the public service management

takes place by creation of public entities to this end”.

In our country, either we refer to the inter-war period or to the present times, the legal

frame was common both to public works concession as well as to service concession. This is

the reason why, since I also pointed out the evolution of concession-related legislation, we

shall limit next to the presentation of certain aspects that have not been taken into account.

The Emergency Government Ordinance no. 34/2006, upon subsequent amendments and

additions, contains in Annex 2B an exemplifying enumeration of the services that can form

the object of the concession.

Directive 92/13/CEE on the coordination of the legal documents and administrative

documents related to application of the community norms related to public procurement

procedures of entities deploying activities in water, energy, transport and telecommunication

field45 is mentioned by article 72 of Directive 2004/17/CE on coordination of assignment

procedures for procurement agreements in water, energy, transport and telecommunication

field46, so that it remained the oldest enforceable directive on services. Directive 93/38/CEE

93/38/CEE on coordination of public procurement procedures of the entities deploying their

activity in water, energy, transport and telecommunication field47 was abrogated by article 73

of Directive 2004/17/CE, having the same regulation object. Directive 93/38/CEE, although

adopted in the same day as Directive 93/37/CEE on public works concession does not contain

regulations on public services concession, as the Council eliminated all references having in

view the differences between the Member States regarding the delegation of public services.

Although Directive 2004/17/CE defined subsequently in article 1, paragraph (4) the

service concession, the same Directive stipulates in article 18 that “the present directive shall

not apply in case of service concessions”. Paradoxically, the public service concession was

defined in a regulatory document that does not regulate it and that expressly stipulates its

exception from application. On the other side, article 82 of Directive 2004/18/CE abrogates

Directive 92/50 on coordination of the assignment procedures of public procurement service

agreements48, except for article 41. Directive 2004/17/CE was abrogated by Directive

2014/25/CE on procurements performed by entities that deploy their activity in the fields of

water, energy, transports and mailing services49, and Directive 2004/18/CE was abrogated by

Directive 2014/24/CE on public procurements50.

We observe that the directives hereinbefore mentioned do not regulate the service

concession, but the service public procurements only. Until the enforcement of Directive

2014/23/CE on assignment of concession agreements51, there were no legal dispositions at

European level to regulate the concession of public services, as CJUE jurisprudence was the

45 JO L 076, 23/03/1992, p.0014-0020. 46 JO L 134/1, 30/04/2004, p.001-0113. 47 JO L 199, 09/08/1993, p.84-138. 48 JO L 209, 24/07/1992, p.1-24. 49 JO L 94, 28/03/2014, p.243-374. 50 JO L 94, 28/03/2014, p.65-242. 51 JO L 94, 28/03/2014, p.1-64.

one to sentence over them. The constant CJUE jurisprudence outlined the interpretation

according to which the concession of public services must comply with the principles stated

by Treaty of Rome on competition, equality of treatment and non-discrimination.

At European level, we must also mention the elaboration of the interpretative

Communication of community concessions by the European Commission in 2000, of the

Green Paper of general interest services in 2003 and of the Green Paper on assignment of

concession agreements in 2011, at the same time with the elaboration of the Green Paper on

revision of the legislation on public procurements, respectively of the Green Paper on public

procurements in the field of water, energy, transports and mailing services.

The Green Paper on general interest public services stipulates that in the eventuality of

public service concession, the stipulations of European Community treaties shall apply in

matters related to equality of treatment, transparency and proportionality.

Under the aspect related to the relation between the public service concession agreement

and the public property assets concession agreement, the Romanian inter-war doctrine

established a basic difference between the concession consented over an asset pertaining to

private or public field, on one side, respectively the concession of a public service, which is a

“special judicial operation”52.

In order to set the grounds for the distinction between the public assets and services that

can be leased, the French doctrine stated that it resides in the fact that, while in the case of the

leased asset, the main obligation of the concessionaire consists of exploiting the asset, upon

concession of a public service, the concession related obligation consists of a double duty: the

service must run continuously and the collectivity cannot waive its power to organize such

service. Thus, it was deemed, stricto sensu, that the public service concession is only a

management method of one service in relation with the concession of assets, which supposes

the concessionaire’s right and obligation to exploit the asset. Thus, the French doctrine

appreciated that a concession agreement of thermal sources (concession of assets), of road

infrastructure or railway infrastructure supposes exploitation. In exchange, the concession of

public transports or medical – sanitary units is a concession of public services.

According to article 2, paragraph (2) of the Emergency Government Ordinance 54/2006,

in case of an agreement of which assignment enters under the incidence of the stipulations of

the Emergency Government Ordinance 34/2006, for the execution of which it is necessary to

exploit a public property asset, the stipulations of the latter ordinance shall apply, since in this

52 Constantin Rarincescu, op.cit., 1941, p.181.

case, the concession agreement of public property assets is considered an accessory in

relation to the service agreement. This rule which can also be detached from the content of

other stipulations of the Emergency Government Ordinance 54/2006 [art. 11, art. 59 par. 4)],

is necessary to delimitate the concession agreement of public property assets from the public

service agreement.

According to article 25 paragraphs (3)-(4) of Law no. 51/2006, upon subsequent

amendments and additions, the public property assets of the administrative-territorial units

used for the supply/provision of public utility service can be administered or leased to the

operators pursuant to legal stipulations, and the private property assets of the administrative-

territorial units used for the supply/provision of public utility service can be administered,

leased or passed to the property of the operators pursuant to legal stipulations.

In consequence, the concession of public property assets is distinct from the concession of

public services, except for the case in which the assets intended are used for the supply,

provision or exploitation of services that make the object of management delegation or

concession of public works, case in which the concession of public works encompass the

concession of public property assets. The case enunciated is just an exception in appearance,

since the public property asset is not leased, it does not make the object of the

concessionaire’s exploitation. The legal dispositions refer to the administration or concession

of the asset, the rights recognized to this regard can only be exerted according to a given

destination, that is, for the purpose of supplying or providing the related service. Thus, the

concessionaire’s right over public property assets is a real right of use, of accessory character

and it is just a means as regards the execution of the public service.

Thus, we consider that apart from an exploitation right over the public service, the

concessionaire also has the right to use on exclusive basis the public asset, which becomes

intrinsic part of the object pertaining to public service concession agreement.

As regards the relation between the public service concession agreement and public works

concession agreement, starting from the theory of the public service of the Romanian inter-

war period53, it was argued that the public service is the fundament of both public service

concession agreements as well as public works concession agreement, and therefore, the

freestanding existence of the latter was contested.

It was said that the organization of a public service involves most of the time the necessity

to set-up certain installations, certain works that – taking into account that are allotted for the

53 Constantin Rarincescu, op.cit., 1926-1927, Ed.Emil Stancescu, Bucureşti, pag.135 şi următoarele.

operation of a public service – have the character of public works. It resulted that the

execution of public works is only possible for the purpose of providing a public service54.

The French inter-war doctrine defended the public service theory and defined the

concession agreement as the agreement of which the essential object is to assign to the

concessionaire a public service. The agreement can have as object the execution of several

works, as operations necessary for the service, “since they are performed over the real estate

addressed to ensure the functionality of the public service”.

The assimilation of the public works concession, public services concession can also be

found in the Romanian post-December judicial literature, in which it was considered that the

conclusion of a concession agreement leads to the fusion of the public works with public

services, since in almost all cases, the beneficiary of the concession of public works also

assumes the task to manage the public service to which the work shall be allotted and vice-

versa, the concession of a public service shall incur the exploitation of public works related to

the service.

In subsequent Romanian legislation, both pursuant to Law 219/1998 on the concession

conditions, at present abrogated – within which three categories of concession agreements

were distinguished: public service concession, asset concession and concession of economic

activities – as well as pursuant to the Emergency Government Ordinance 34/2006, upon

subsequent amendments and additions, the public works concession is regulated distinctly

from other forms of concession. Thus, upon assignment of a concession agreement, the

contracting authority must establish its legal nature, “since an agreement cannot be at the

same time public works concession agreement as well as service concession agreement”55. A

public works concession agreement should be chosen if the propose of the concession aims

especially the execution of works, as they are defined by law, even if the agreement also

includes the provision of services that become necessary for deployment of the specific

activity56.

In its turn, the public works concession agreement encompasses, when necessary, the

concession of public property assets57. In such cases, the Emergency Government Ordinance

54/2006 does not apply anymore on the condition of concession agreements of public

54 Constantin Rarincescu, op.cit., 1941, p.183. 55 Guide for implementation of public Works and service concession projects in Romania, section 1.2.3, http://discutii.mfinante.ro/static/10/Mfp/PPP/GHID_CONCES_PUBLICE.pdf. 56 Idem. 57 Eugen Chelaru, Despre dreptul real de concesiune, Revista Română de Drept privat nr.2/2008, p.32.

property assets, approved by Law 22/200758, and the legal frame on concession of public

property assets acquires an exception character.

On the other side, the theory of pre-eminence of public works concession or public

service concession is recognized by the current legal frame, as it is found in the reasoning of

the Emergency Government Ordinance 34/2006, upon subsequent amendments and additions.

Thus, pursuant to article 3, paragraph (2) of the application norms of the Emergency

Government Ordinance 34/2006 approved by the Government Decision 71/2007, “the

establishment of the types of concession agreements, respectively the distinction between the

public works concession agreement and public service concession agreement is made

similarly to the stipulations of chapter I, section 3 of the Emergency Ordinance”. By

corroboration of the stipulations of article 6, paragraph (2) of the Emergency Government

Ordinance 34/2006, upon subsequent amendments and additions with the ones of article 3,

paragraph (2) of the norms mentioned, it results that the main object of a concession

agreement is service provision, and as accessory, the deployment of several activities among

those stipulated in Annex no. 1 (which refer to public works, s.n.) is considered as service

agreement.

The rule is the one according to which the public works concession is a freestanding

agreement, with distinct features as opposed to the public service concession. In exceptional

cases, if the main object of the agreement is service provision, the public works executed to

this end shall be assimilated to it, in the sense previously mentioned.

In conclusion, the pre-eminence of the public service concession over the public works

concession depends upon the main object of the concession agreement, which must be the

execution of a public service and not the execution of public works.

In Spain, article 12 of the Law on public agreements regulates that, if an agreement

contains service provisions based upon one or other among the different types of agreements,

including elements specific to public service concession, respectively public service

concession, the most important contractual stipulations from economic point of view shall be

taken into account, based upon certain criteria that must be complied with. For that matter,

the public works concession agreements are separately regulated from public service

concession agreements, and they cannot be confounded.

As regards the distinction between the public service management agreement and the

public works management agreement, the Spanish doctrine mentions that “the exploitation

58 Published in the Romanian Official Gazette no .569 as of 30 June 2006

phase of a public work does not involve the provision of any public service. The object of the

agreement is the use of the infrastructure by the use, which in itself does not involve the

provision of any service”59. Another opinion60, inspired from the European jurisprudence,

appreciates more clearly the distinction between the two categories of agreements, starting

from the implications of the exploitation notion. When the object of the concession

agreement is making available the works to the service providers or users to occupy, use or

exploit it, in exchange of a remuneration, the agreement is a service concession agreement,

and when the exploitation involves more than using an already existing real estate that is

build by the administration, the concession refers to public works.

The distinction between the two categories of agreements is also reflected by the

Portuguese legislation in the field, by the Law of Public Agreement61, which also enumerates

the public works concession agreements as well as the public service concession agreements.

In the French doctrine, the public works concession agreements have a distinct place as

the one allotted to public service concession agreements, mentioning that the concessionaire’s

remuneration is ensured by means of the royalties charged from the users of the resulted

work.

A new judicial case, which recognized the co-existence of the public works concession, as

well as of public service concession, is found in the French jurisprudence62, in case of a

tripartite convention concluded between the co-assigning administrative authority, a works

concessionaire and a public services concessionaire, of which the administrative nature was

recognized by the State Council.

In the current European law, if the concession agreement is mixed and if it comprises

elements from the public works concession as well as service concession, the agreement must

be assigned pursuant to the dispositions applicable to the type of concession that stands for

the main object of the agreement concerned, pursuant to article 20 of Directive 2014/23/CE.

Taking into account that in the European law, the service concession did not rejoice a

distinct regulation, part of Chapter III of the PhD thesis was addressed to the new European

legislative frame on concessions, that is Directive 2014/23/CE.

59 Adolfo Menéndez Menéndez, Comentarios a la nueva Ley 13/2003, de 23 de Mayo, reguladora del contrato de concesión de obras públicas, Ed.Thomson Civitas, 2003, p.97. 60 Francisco José Villar Rojas, loc.cit, Congresul extraordinar XIV „Derecho y Salud”, vol.14/ 2006, p.9. 61 Decree Law no. 18 as of 29 January 2008. 62 State Council, case Société Kéolis Caen, 6 December 2013, nr.370074, Rec.Lebon.

On 18 March 2014, three directives of a distinct signification were published into the

European law on public law agreements, the authentic evidence that the European Union’s

perspective over them is continuously evolving.

In the past preoccupied by the competitive aspects only, by revision of public

procurements and concessions, the European law meets the requirements to consolidate

competition in the field of large agreements once with the delimitation, in a more precise and

more oriented manner, of collateral objectives, such as the efficiency of public expenses, easy

access to agreement assignment, sustainable confidence63.

Directive 2014/23CE on concessions, Directive 2014/24/CE on public procurements,

respectively Directive 2014/25/CE on utilities were the quintessence of a long European

jurisprudential journey as well as of long debates and proposals. The new European

legislation was grounded on a legislative project drafted in 2011, which established certain

guiding rules: simplified dispositions, a simpler course of the assignment procedure, more

negotiations on acquisitions, simplified advertising rules, etc.

Into the light of such regulations, the French doctrine appreciated that a reform is

necessary for the typology of administrative agreements, which is not adapted to the

European summa division and which is the source of many uncertainties, taking into account

the multiple categories of administrative agreements of the French law and it considers that

they should not subsist to the judicial frame issued by directives of 201464.

The elaboration of certain European regulations in the field of public procurement and

concessions involved a double trap: if the rules were too relaxed, then still the main principles

would have applied in the future, and the judicial security would have been threatened. If the

rules were too harsh, then the freedom of the contracting authority to assign the agreement –

a tradition of assigning the concession agreements in France – would have been threatened.

This is why, one of the objectives established by the European Commission at the beginning

of the elaboration was the compliance with the national judicial traditions (Commission’s

proposal, COM 2011, 897 final, p.7-8). Thus, regarding the first Commission’s proposal, the

French representatives of the European Parliament expressed their fear that such

classification assigns to the concession agreement a too strict regime, based on the

regulations specific to public procurements.

63 Stéphane Braconnier, La typologie des contrats publics d`affaires, face á l`évolution du champ d`application des nouvelles directives, AJDA nr.15/2014, p.833. 64 Idem.

Upon development of the European law on service concession and especially upon en

enforcement of the new directive, it is natural that the European Union law shall not remain

in concordance with the national law of the Member States65.

In reality, the new directive on concessions covers a dead angle of the European law on

business public agreements. Concession is an agreement neglected by the European law,

especially by the directives on public procurements of 2004, which do not treat the works

concessions but marginally and which do not impose to service concessions any specific

rule66.

The only principles of European law “directed” a minima the service concession resulting

from Telaustria jurisprudence: transparency and a high level of appropriate advertising. The

tendency of the new European legislation is yet the standardization of European applicable

rules in the public law67.

Initially, the project was founded on ambiguity, using the notion “public procurement

agreement on concession”, the text being inspired from the former directive.

In the project of year 201168 of the directive on concessions, the service concession was

defined as “the agreement for good and valuable consideration concluded in writing between

one or more economic operators and one or more auctioneers, of which the object consists of

service provision and the trade-off related to such services is the exclusive right to exploit the

services that make the object of the agreement, or the right accompanied by payment”.

The criticism related to such proposal of defining the service concession consists of a lack

of clear differentiations between public concessions and public procurements, as the mention

of the nature of the services provided is considered as insufficient, as well as in the

discrepancy towards the French law in the field69. In the latter case, public procurements

represent a purchase technique that allows the auctioneer power to fit with the means

necessary for the management by itself of a general interest activity.

Contrary to this opinion, another French author70 considered that the directive related

project clarifies first the notion of concession, integrating at last in its definition the notion of

exploitation related operational risk that the concessionaire must bear, as the European

65 Sébastien Platon, loc.cit., AJDA nr.25/2013, p.1449. 66 Stéphane Braconnier, La nouvelle directive communautaire sur les concessions, Bulletin Juridique des Contrats Publics, http://droit-des-contrats-publics.efe.fr/2013/09/23/la-nouvelle-directive-communautaire-sur-les-concessions/, p.1. 67 Samuel Dyens, La Proposition de Directive „Concessions” et la loi „Sapin” sont-elles fondamentalement compatibles?, AJ Colectivités Territoriales, 2012, p.604. 68 COM (2011) 0897. 69 Samuel Dyens, op.cit., p.605. 70 Stéphane Braconnier, loc.cit., Bulletin Juridique des Contrats Publics, p.2.

jurisprudence consecrated71. From this point of view, the consequences are neutral for the

French law that has long-time used such delimitation line between the public payment

agreements (public procurements and partnership agreements for example) and exploitation

agreements (delegation of public services or public works concession, for example). In

addition, the aspects hereinbefore mentioned are consolidated into the Romanian legislation

as well, as we have mentioned in the section addressed to risk analysis within public service

concessions.

The Directives must be transposed in the national law by April 2016, following that such

dispositions be mandatory for the central institutions involved from April 2017, and in

September 2018 they shall become generally mandatory.

Until then, upon enforcement of directives on 28 March 2014, appears the issue of

compulsoriness of national courts to analyze the European legislation already in order to be

able to rule, since one national court cannot contradict an imperative norm from the domestic

law and neither cannot it take into account the European directives, although not transposed

yet.

A special place that benefits from a summary approach in the Romanian specialized

literature is the fourth type of agreements analyzed, that is oil concession and mining

concession, which led to elaboration of a chapter exclusively to this end.

Chapter IV is thus titled “Oil concession and mining concession” and it is structured on

several subchapters, of which we enumerate the following: “Short considerations on oil

concession and mining concession”, “Evolution of the Romanian legislation in the oil and

mining fields”, “International legal frame of oil concession and mining concession”,

“European legal frame of oil concession and mining concession”, “Legal frame of natural

resources”, “Legal regime applicable to oil concession and mining concession”,

“Jurisdictional competence”, “Rosia Montana case”, “Other types of public agreements in oil

and mining field”, “Oil concession and mining concession in Romania and other countries of

the world”.

The international social and economic implications of the exploitation methods of subsoil

wealth, their valorization and greater and greater pressures on natural oil and mining deposits

determined us to approach such issue in attempting to correlate the Romanian space to the

modern approaches of other States and to the management method of concession as main

exploitation means. 71 CJUE, cauza C-274/09, Privater Rettungsdienst und Krankentransport Stadler, hotărâre din 10 martie 2011, ECR 2011, I-01335.

The motivation of the importance in approaching oil and mining concession in the present

scientific approach dedicated to concession may be at best captured in the following quote:

“We can identify two tendencies, starting with the crisis from the beginning of the

millennium: the countries on few resources are open to foreign investments and those on vast

resources and high production capacity tend to a greater participation of the State”72.

The appurtenance of natural resources to the State originates in the Roman law, as this

became the property of the sovereign as political authority. According to this system by

which the emperor granted exploration and exploitation licenses, the soil master (dominium

directum) belonged either to the Crown, or to the lords and it was separated from the

possession title (dominium utile), which was represented by the right to use and get profit

from the land. In consequence, the State disposes of the mineral resources and the land

owners were only entitled to compensation for loss of the property right over the soil

(expropriation).

The peoples’ right to use and exploit their natural resources was recognized by the

Resolution number 626 (VII) as of 21 December 1952 of the General Assembly of the United

Nations. Later on, Resolution number 1803 XVII of the General Assembly of the United

Nations as of 14 December 1962 recognized that the peoples’ right to permanent sovereignty

over the natural resources must be exerted in national interest.

The recognition of the countries’ right, especially the right of developing countries to

secure and extend the participation in running foreign capital companies was mentioned by

Resolution number 2158 (XXI) as of 1966, and a Charter of Economic Rights and Duties of

States was drafted by Resolution number 3281 (XXIX) as of 12 December 1974 issued by the

same General Assembly of the United Nations.

As regards the judicial regime of natural resources in other countries of the world, the

following tendencies developed at international level: the property over the natural resources

belongs to the landowner; the property of natural resources belongs to the State or other

public authority where the resources are located.

The first situation is relevant for the United States of America (hereinafter referred to as

USA). The right to capture shapes the judicial regime of USA natural resources, although its

recognition nowadays is considered anachronical.

72 Luciana Palmeira Braga, Thiago Neves Campos, A comparative study of bidding models adopted by Brazil, Peru, Colombia and Uruguay for granting petroleum exploration and production rights (Studiu comparativ al modelelor de atribuire adoptate de Brazilia, Peru, Columbia și Uruguay pentru acordarea drepturilor de explorare și producție petrolieră), Journal of Energy Law & Business, vol.5, nr.2, Oxford University Press, 2012, p.97.

According to this theory, the oil property belongs to the owner of the surface under which

the oil is located. In some jurisdictions, the oil property in situ is recognized and it is claimed

that the property only appears when the oil is manufactured and brought to possession, that is

when extracted and when it transforms from immovable into movable asset.

Moreover, in Texas State the “capture rule” was recognized, according to which the oil

belongs to the landowner that, when drilling the oil, it is located under his land. Therefore, if

the oil moves from one place to another under the earth shell, it shall belong to a person or

another according to the oil movement hazard. In California and Indiana there is another

theory of property, according to which the landowner does not possess any title over oil in

situ because the oil can be extracted and it belongs to the entity or person extracting it

(obviously from its land). Thus, if the oil is located under land surfaces belonging to different

owners, the owner that starts first the exploitation has the right of preemption on the oil

procurement. Therefore, the exploration and exploitation are rights granted by mine

lease/leasing/concession.

In Louisiana, pursuant to the Mining Law (1975), the land property does not include the

property over oil or other minerals. The landowner does not have property right over the

minerals crossing the subsoil, and thus, oil and gas cannot be divided according to the rights

established over the land. Nevertheless, the mining servitude over the land grants to its holder

the property right over oil resources, the right to prospect, exploit and manufacture oil. This

servitude creates rights similar to the rights pertaining to the holder of mining rights divided

in the common-law judicial system.

In the past, the capture law was also regulated by the legislation of other States, among

which Romania as well, as it resulted from the Civil Law as of 1865. This law subsisted until

the enforcement of the Constitution in 1923. Nevertheless, England and the United States

continued to be an exception, maintaining their conception according to which the soil owner

is the subsoil owner as well.

In Latin America and Middle East, the situation is different. Thus, according to both

Spanish Ordinance on Ores (1783) and Islamic Law on Ores, since the State had control over

such wealth, concessions were allowed on much extended surfaces.

Gradually, except for the United States, the other States waived such right into the

legislation and allowed the State to take over the subsoil wealth based upon public interest

criterion. Romania followed the same evolution. The nationalisation of natural resources led

in Romania to advent of the concession agreement that substituted the private agreements.

In the French law, according to article L132-8 of the New Mining Law of France73, the

concession related institution creates a real estate right distinct from the property right, and

such right cannot be mortgaged. The concessionaire has the right to dispose, for the necessity

of its exploitation, of the non-assignable substances that the works inevitably engage. The

owner of the soil can claim the disposition of those substances that could not be used in such

conditions, paying to the mine operator a compensation corresponding to the expenses

incurred by the direct extraction.

In the Canadian law (Quebec), the conclusion of exploitation agreement represents, in

favour of the beneficiary, an authentic right exerted in certain conditions imposed by the

owner (according to article 223 of the Mining Law, the holder of the mining agreement can

even sell its right). This judicial concession involves for the State the recognition to a

physical or legal person of the rights of use over the land or over the forest or even the

property right over the subsoil wealth that were part of the public field.

The Canadian constitution expressly assigns the property of all lands, mines, minerals and

royalties to the provinces Ontario, Quebec, Nova Scotia and New Brunswick. Section 92A of

the Constitution (1867) completed in 1982, confers to the provinces an exclusive jurisdiction

on the elaboration of laws related to exploration, development, preservation and management

of non-renewable mineral resources, such as the oil.

In Chile, in 1971, the Constitution was modified to allow the nationalization of mines. In

addition, Law no. 16.615 as of 29 January 1967 regulates the State law to enact in exclusivity

over the natural resource field as well as over other fields declared of prominent importance

for the economic life.

In Brazil, article 22, point 2 of the Mining Law74 forbids the extraction of ore in an area

before the grant of a mining concession along with the authorization from the National

Direction for Environmental Protection.

In Portugal, the Decree-Law number 280 as of 7 July 2007 related to the public real estate

patrimony mentioned in preamble that the use of public State lands is limited by the

principles of perpetuity, imprescriptibility and immunity from seizure, but the use by

individuals is allowed, especially by exploitation mining concession.

In Spain, the Mining Law of 1973 mentions that all mines or other geological resources

located on the Spanish national territory, in the territorial waters or on the continental plateau

are declared as State property and the individuals and private companies are entitled to apply 73 The new Mining Law was adopted by Ordinance no. 2011-91 as of 20 January 2011. 74 Decree-Law no. 227 as of 28 February 1967.

for the procurement of an authorization for prospection of minerals or for the concession

related to mining exploitation, except for the cases in which the State reserved this right for

itself.

In Denmark, the Subsoil Law no. 1025 as of 18 November 2005 mentions that the oil,

gas, salt and geo-thermal energy are the State property. Subsequently, other natural resources

were inserted as well: wind, offshore waves (waves of high depths), taking into account their

use for energy purposes.

In Germany, the mineral resources are all defined as mineral substances, in solid, liquid or

gaseous state, except for water accumulated in natural sediments or onshore or offshore

deposits. The mineral resources are classified in “bergfrei” and “grundeigen”. It is only over

“grundeigen” mineral resources that the property right is exerted and they are the only to take

over the judicial regime of the land and they are considered as private property. The mineral

resources of “bergfrei” type including for example metals such as iron, gold, copper, coal,

geo-thermal energy, salt are considered as assets that cannot be appropriated, but which

impose the exploitation based upon a prior administrative authorization75.

In the British law, it was considered the once the oil well control was taken over by

private companies, and once the price has been established by the market economy, the oil

field shall not be applied the rules of public law, “since what was once public became

private”76, and therefore a diminishing was identified in the involvement of the public

administration in public matters. Nevertheless, the State created different institutions to

regulate the activity of privatized oil companies, from where it results that the relation State –

Company was maintained to a certain extent. To this regard, even the companies want to

have rules established by the State to cope with the foreign competition and to obtain, by the

pressure exerted over the government, more advantageous contractual terms.

On the other side, it was defended that the contractual externalization of the

responsibilities incurred by the public services led to a situation that cannot be classified in

any public law or private law.

In Nigeria, the Supreme Court sentenced in the sense that the State is the only owner of

the natural resources, and not the local governments.

In Papua New Guinea, although the communities do not have such rights, they rejoice

certain rights related to the benefits obtained by the assignees, rights titled “royalty benefits’’. 75 Anita Rønne, Public and Private Rights to Natural Resources and Differences in Their Protection (Drepturi de natură publică și privată asupra resurselor naturale și diferențe în protecția lor), Oxford University Press, 2010, p.66. 76 Michael Taggart, The Province of administrative Law, Oxford, Hart Publishing, 1997, p.99.

For the conclusion of the PhD thesis, we propose to present the summary of the most

relevant controversial aspects and yet not cleared in the concession field mentioned in the

present paper. In order to valorise the research made on drafting the present PhD thesis, we

tried to create in the last part of the paper answerless questions or on the contrary, questions

that trigger multiple answers, to shape relative truths by logical – judicial investigation

methods and in the end to contribute with our personal concrete reflections that we hope to be

useful in future analyses in the field.

By this PhD thesis, we propose to contribute to a more comprehensive understanding of

the concession agreement in Romania, in relation with the one specific to other States of the

world, within the context of the new legislative frame of the European Union. We intend to

identify the place occupied by this type of agreement in the current international scenario,

ground by economic disorders, financial pressures and by the gradual tendency to diminish

the importance of the general interest into assignment of public agreements and into the

exertion of the concession right.

For the drafting of the present PhD thesis, different bibliographical sources were studied,

represented by books and articles of several Romanian and foreign authors, as well as by the

Romanian, European and foreign legislation in the field, by jurisprudence and other

information from official sites. Next, we shall present a selection of such sources.

I. Treaties, courses, monographs A. Romanian legal literature

1. Andreșan-Grigoriu, Beatrice; Tudorel Ștefan, Tratatele Uniunii Europene, Ed.Hamangiu, București, 2010;

2. Apostol Tofan, Dana – Drept administrativ, ediţia a-II-a, vol.II, Ed.C.H.Beck, Bucureşti, 2009;

3. Apostol Tofan, Dana – Instituții administrative europene, Ed.C.H.Beck, Bucureşti, 2006;

4. Apostol Tofan, Dana – Puterea discreţionară şi excesul de putere al autorităţilor publice, Ed.All Beck, Bucureşti, 1999;

5. Adam, Ioan – Regimul juridic al dobândirii şi înstrăinării imobilelor – terenuri şi construcţii, Ed.Europa Nova, Lugoj, 1996;

6. Adam, Ioan – Proprietatea publică şi privată asupra imobilelor în România, Ed.All Beck, Bucureşti, 2000;

7. Adam, Ioan – Drept civil. Drepturile reale principale, ediţia a-II-a, Ed.All Beck, Bucureşti, 2005;

8. Adam, Ioan - Drept civil. Obligațiile. Contractul, în reglementarea Noului Cod Civil, Ed.C.H.Beck, 2011, București;

9. Alexandru, Ioan - Drept administrativ european, Ed.Universul Juridic, Bcuureşti, 2008; 10. Avram, Iulian - Contractele de concesiune, Ed.Rosetti, Bucureşti, 2003; 11. Bălan, Emil - Dreptul administrativ al bunurilor, Ed.C.H.Beck, Bucureşti, 2007; 12. Bălan, Emil - Introducere în studiul domenialităţii, Ed.All Beck, Bucureşti, 2004; 13. Bârsan, Corneliu – Drept civil. Drepturile reale principale, Ed.All Beck, Bucureşti, 2001; 14. Beleiu, Georghe - Drept civil român, ed.revizuită și adăugită, Casa de editură și presă „Șansa”, București, 1995; 15. Bogasiu, Gabriela- Legea contenciosului administrativ, ed.aII-a, comentată și adnotată cu legislație, jurisprudență și doctrină, Ed.Universul Juridic, București, 2014; 16. Buzatu, Gheorghe - O istorie a petrolului românesc, Editura Enciclopedică, București, 1998; 17. Caraiani, Gheorghe; Dinu, Remus; Pricina, Lucian; Buzan, George Cristian; Ardelean Claudia - Managementul companiilor offshore din zonele libere, Ed.Lumina Lex, București, 2002; 18. Chelaru, Eugen – Circulaţia juridică a terenurilor (Exercitarea dreptului de proprietate publică), Ed.All Beck, Bucureşti, 2000; 19. Chelaru, Eugen – Curs de drept civil. Drepturile reale principale, Ed.All Beck, Bucureşti, 2000; 20. Chelaru, Eugen – Administrarea domeniului public şi a domeniului privat, Ed.All Beck, Bucureşti, 2005; 21. Chiriac, Lucian - Drept administrativ. Activitatea autorităților administrației publice, Ed.Hamangiu, București, 2011; 22. Ciobanu, Alexandru-Sorin - Selecție de avize, decizii, hotărâri relevante ale Curții Constituționale, Ed.Universul Juridic, București, 2012; 23. Ciobanu, Alexandru-Sorin - Inalienabilitatea și imprescriptibilitatea domeniului public în dreptul român și în dreptul francez, Ed.Universul Juridic, București, 2012; 24. Ciobanu, Alexandru-Sorin - Aspecte specifice privind regimul domenial public în România și în Franța, Ed.Universul Juridic, București, 2012;

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148.Ciobanu, Alexandru Sorin – Relevanța vechiului drept francez în procesul de formare a principiului inalienabilității domeniului public, Revista de Drept Public nr.3/2009, Ed.C.H.Beck, București, 2009, p.19-28; 149.Ciobanu, Alexandru Sorin – Problema inalienabilității bunurilor domeniale în lumina „legislației revoluționare” și a Codului civil francez din 1804, Analele Universității București, seria Drept, nr.2009-IV, Ed.C.H.Beck, 2009, București, p.24-33; 150.Ciobanu, Alexandru-Sorin - Efectele directivelor privind achizițiile publice și concesiunile în dreptul național – discurs prezentat în cadrul Conferinței „Reforma legislației europene a achizițiilor publice”, 15 mai 2014, București; 151.Cojocaru, Aspazia – Discuţii privind noţiunile de proprietate publică şi proprietate privată a statului sau a unităţilor administrativ-teritoriale, Revista Dreptul nr.11/1998, p.42-46; 152.David, Sorin - Contractul de concesiune, Revista Dreptul nr.9/1991, p.36-52; 153.Ponea, Calotă; Dănişor, Diana Domnica – Consideraţii asupra dreptului de administrare ca drept real principal, Revista Ştiinţe Juridice, p.74-81; 154.Filipescu, Ion - Domeniul public şi domeniul privat al statului şi unităţilor teritorial-administrative, Revista Dreptul nr.5-6/1994, p.75-82; 155.Frenţescu, Laurian - Noţiunile de domeniu public şi domeniu privat al statului. Conţinut şi regim juridic, Revista Dreptul nr.10-11/1993, p.41-47; 156.Giurgiu, Liviu - Consideraţii în legătură cu domeniul public, Revista Dreptul nr.8/1995, p.34-42; 157.Gherghina, Simona - Discuții referitoare la contribuția în bunuri a partenerului public la proiectele de parteneriat public-privat potrivit legislației române actuale, Revista Dreptul nr.4/2012, p.151-165; 158.Gherghina, Simona - Limitele utilizării garanțiilor publice indirecte în finanțarea investițiilor publice, AUB, 2012-I, seria Drept, p.46-58; 159.Gherghina, Simona; Sebeni, Aladar - Efectele şi încetarea contractului de concesiune, Revista Dreptul nr.11/1999, p.3-22; 160.Godeanu, Teodor, Narcis - Teren aparţinând domeniului public. Contract de arendare. Competenţa materială în caz de situaţii litigioase în legătură cu acest contract, Revista Dreptul nr.11/2006, p.168-171; 161.Guiu, Mioara Ketty – Reprezentarea statului în acţiuni având ca obiect bunuri proprietatea acestuia, Dreptul nr.1/1997, p.64-97; 162.Isăilă, Mărioara - Contract de concesiune încheiat de Agenţia Domeniilor Statului. Natura litigiului. Instanţa competentă, Revista de Drept Comercial nr.5/2007, p.85-88; 163.Lazăr, Ioan; Ladanyi, Arpad – Condiţia prealabilă de intabulare a dreptului de proprietate asupra proprietăţilor imobiliare care formează obiectul proprietăţii publice, în vederea efectuării actelor de dispoziţie, Revista Dreptul nr.9/2009, p.105-118; 164.Micu, Cătălin - Unele aspecte privind legislația concesiunilor și achizițiilor publice, Revista română de drept al afacerilor nr.2/2008, p.114-121; 165.Murzea, Cristinel - Jus Sepulcri – între tradiție și modernitate, Revista de Științe Juridice nr.2/2012, Ed.Universul Juridic, Craiova, p.83-92;

B. Foreign Authors

166.Adedolapo A.Akinrele San, Transparency in the Nigerian oil and gas industry (Transparență în industrua nigeriană petrolieră și a gazelor naturale), Journal of Energy Law & Energy, vol.7, nr.3, p.220-235;

167.Ayoub M.Al-Jarbou - Administrative Contracts under Saudi Arabian Law (Contractele administrative reglementate de legea Arabiei-Saudite), Public Contract Law Journal, Chicago, nr.1/2011, p.75-89; 168.Barton, Robin - Social Services of General Interest: The Case for Greater Harmonisation of the Competition and Public Procurement Rules (Serviciile sociale de interes general: cazul unei mari armonizări a reglementărilor concurențiale privind achizițiile publice), European Law Review, nr.37/2012, Thomson Reuters, p.584-605; 169.Bovis, Christopher - The challenges of public procurement reform in the single market of the European Union (Provocări al reformei achiziției publice în cadrul pieței unice a Uniunii Europene), ERA Forum (2013) vol.14, nr.1, Springer, 2013, p. 35-57; 170.Braconnier, Stéphane - La typologie des contrats publics d`affaires, face á l`évolution du champ d`application des nouvelles directives, AJDA nr.15/2014, Ed.Dalloz, Paris, p.832-844; 171.Braconnier, Stéphane - Public Procurement by the European Union Institutions (Achizițiile publice ale instituțiilor Uniunii Europene), http://www.europarl.europa.eu/studies, Bruxeles, 2011; 172.Braconnier, Stéphane- La nouvelle directive communautaire sur les concessions, Bulletin Juridique des Contrats Publics, http://droit-des-contrats-publics.efe.fr/2013/09/23/la-nouvelle-directive-communautaire-sur-les-concessions/; 173.Braga, Luciana Palmeira; Thiago Neves Campos- A comparative study of bidding models adopted by Brazil, Peru, Colombia and Uruguay for granting petroleum exploration and production rights (Studiu comparativ al modelelor de atribuire adoptate de Brazilia, Peru, Columbia și Uruguay pentru acordarea drepturilor de explorare și producție petrolieră), Journal of Energy Law & Business, vol.5, nr.2, Oxford University Press, 2012, p.94-112; 174.Braga, Luciana Palmeira; Szklo, S. Alexandre - The recent regulatory changes in Brazilian petroleum exploration and exploiting activities (Modificări legislative recente în activitățile braziliene de explorare și exploatare petrolieră), Journal of Energy Law & Business, vol.7, no.2, Oxford University Press, 2014, p.120-139; 175.Brenet, François - L`exception de coopération entre entités appartenant au secteur public dans les nouvelles directives, AJDA nr.1/2014, Ed.Dalloz, Paris, p.848-854; 176.Childs, C.C. Thomas - Update on Lex Petrolea: The continuing development of customary law relating to international oil and gas exploration and production (Actualizarea Lex Petrolea: Evoluția dreptului cutumiar referitor la explorarea și producția internațională petrolieră și de gaz), Journal of World Energy Law&Business, vol.4, nr.3, Oxford University Press, 2011, p.214-259; 177.Dyens, Samuel - La Proposition de Directive „Concessions” et la loi „Sapin” sont-elles fondamentalement compatibles?, AJ Colectivités Territoriales, 2012, p.604-612; 178.Drimmer, Jonathan - Human rights and the extractive industries, Journal of Law Energy & Business vol.3, nr.2/2010, Oxford, 2010, p.121-139; 179.Freire, William - Legal regime for mineral resources in Brazilian law: Brazilian constitutional regime and exploitation of mineral wealth(Regimul juridic al resurselor minerale în legea braziliană: regimul constitutional brazilian și exploatarea bogățiilor minerale), Revista Juridica, vol.9, nr.84, aprilie-mai 2007, http://www.planalto.gov.br/ccivil_03/revista/Rev_84/artigos/WilliamFreire_rev84.htm; 180.Gaffey, David W. - Outsourcing Infrastructure: Expanding the use of Public-Private Partnerships in the United States (Externalizarea infrastructurii), Public Contract Law Journal nr.2/2010, Chicago, p.351-373;

181.García-Castrillón, Carmen Otero - Reflections of the law applicable to international oil contracts (Reflecții cu privire la legea aplicabilă contractelor petroliere internaționale), Journal of Energy Law & Business, vol.6, nr.2, 2013, p.129-162; 182.Guglielmi, Gilles - La modèl française de la concesssion: conquête ou concurence?, http://www.guglielmi.fr/IMG/pdf/TableRondeConcess.pdf, p.1-5; 183.Hardner, Jared J; Rice, Richard - Rethinking Forest Resource Use Contracts in Latin America, studiu efectuat de Inter-American Development Bank, Washington D.C., 1996, https://enet.iadb.org/webdocs/ 184.Hartlev, Kristian; Mortin Wahl Liljenbøl, Changes to Existing Contracts under the EU Public Procurement Rules and the Drafting of Review Clauses to Avoid the Need for a New Tender, Public Procurement Law, Public Procurement Law Review, nr.2/2013, Sweet&Maxwell, Regatul Unit, p.51-73; 185.Johnson, Peter; Shedding, Lode: A Case Study of the Economic Benefits to the Landowners, the Provincial Government and the State from the Porgera Gold Mine, Institutul Național de Cercetare Papua Noua Guinee, 2012, p.1-125, www.nri.org.pg1publications; 186. www.legisplus.eu 187. http://www.gao.gov 188. www.fppetrolgaze.ro 189. www.uncitral.org 190. www.eur-lex.europa.eu 191. www.eipa.eu 192. www.reneual.eu 193. www.mhag.com.br 194. www.planalto.gov.br 195. www.acad.ro 196. www.rmgc.ro 197. http://www.opec.org 198. http://www.petrom.com 199. http://www.namr.ro