Differences between the Concession Contract of Public Services and other Contracts

• Author: Matei, C.G.
• Position: Faculty of Law, Transilvania University of Brasov
• Pages: 157-160

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 6 (55) No. 1 - 2013

DIFFERENCES BETWEEN THE

CONCESSION CONTRACT OF

PUBLIC SERVICES AND

OTHER CONTRACTS

C<t<lina G. MATEI1

Abstract: The concession of public services without the concession of the

related public works was viewed as an exception. The public services

contract was considered to rank first among the administrative contracts.

The European Court of Justice ruled that establishing the nature of a

contract – whether it is a public works contract or a public contract of a

different nature – is done by identifying the main purpose of the contract that

determines the applicable directive, including situations where the contract

has elements regarding the concession of public works as well as other types

of public contracts. Also, the concept of concession used in relation to both

concession and PPP was deemed in Romania as a source of confusion and

ambiguity regarding the confidence of both the public and private partner

within the context of project development.

Key words: public services, public works, general interest, concession.

1 Faculty of Law, Transilvania University of Braşov.

1. Introduction

The concept of public work was first

defined in French jurisprudence by the

State Council and the Tribunal of

Conflicts. More recently, in co mmunity

law, Directive 93/37 of 14 June 1993

introduced a different concept applicable

to public acquisition of works. Initially the

concept of public work had been

established on three traditional conditions:

the real object of the works, its purpose of

general utility and its completion for the

benefit of a public person. The latter of

these conditions being very rigid,

jurisprudence considered that public works

should not be necessarily limited to work

conducted for a public person. Thus this

condition acquired alternative status: in

order for a work to be public it needs to be

executed either for a public person, or, i f it

is executed for subjects of private law, this

has to be within a mission of public service

[1]. Introducing the possibility of

subordinating public works to works

executed for a private person has lead to a

reconsideration of public service theory

and to an extension of the concept of

public work.

2. The Concession contract of public

services and the public works contract

The public service is aimed at the regular

and continuous satisfying of a general

requirement [5], and is organized by the