Administrative Code – new legislation
18 July 2019
Administrative liability is transferred to public servants
Concessions of public property is subject to new rules
A comprehensive set of rules on public administration and public property
The Government has passed on Emergency Ordinance regarding the Administrative Code (the “Administrative Code”) that was published in the Official Gazette on 5 July 2019. The Administrative Code covers the general legal framework for the organisation and functioning of the public administration, the statute of public servants and public services and regulates the regime of the state owned property. The Administrative Code entered into force upon its publication with the Official Gazette except for certain provisions which will become effective on a later date.
The Administrative Code is subject to further Parliamentary review; the Parliament may confirm, amend or reject it. The emergency grounds based on which the Administrative Code has been approved by the Government might be disputed before the Constitutional Court which will have to assess whether the Government was entitled to enact the Administrative Code by way of emergency ordinance.
1.What’s new on concessions and administration of public assets?
Significant changes to the general legal regime of concession of public property were made, including (i) the limitation of the duration of concessions to 49 years (including any extensions), (ii) interdiction of subconcessioning, subject to certain exceptions, (iii) new rules for concession fee establishment, (iv) the tender organisation rules have been softened and (v) new approach on the application of the awarding criteria for the selection of the concessionaire. The Administrative Code also sets specific rules for the lease (in Romanian, închiriere) and free of charge lease (in Romanian, darea în folosință gratuită) of public domain assets.
2. Any novelties regarding public/private domain assets?
The Administrative Code sets out specific rules covering the ownership right of the Romanian state and the administrative territorial units in respect of the assets from private and public domain (such as water networks, roads, land) and the transfer procedures of the state owned assets in the public or private domain of the state and the administrative territorial units. A novelty of the Administrative Code is that it comprises lists of assets held by Romanian state at local and central level for a better identification of public assets. Such lists are not exhaustive and are supplemental to the list of public assets mentioned in the Romanian Constitution and other laws and the assets declared of public use or public interest under the law or due to their nature.
3. Are the public servants personally responsible?
The liability for the acts of local public authorities is transferred from the mayors and the local councils (as applicable) to the public servants, if the latter have endorsed such administrative acts. The mayors and the local councils (as applicable) have the exclusive power to assess the necessity and opportunity of issuance of administrative acts. In our view such change might trigger a reluctancy from the public servants in preparing and signing endorsement of documents, thus triggering delays in the issuance of various administrative acts. The Administrative Code sets new specific rules regarding administrative liability, which takes three forms: disciplinary, contraventional and pecuniar liability.
4. How is the organisation of the public administration changed?
Generally no significant changes were performed in terms of organisation of the public administration, the main purpose of the Administrative Code is to provide a unitary set of rules on public administration within the same law . It is worth noting that although the districts of Bucharest are covered by the new legislation, the legal status thereof is still not completely clarified.