Differences between the Concession Contract of Public Services and other Contracts

Author:Matei, C.G.
Position:Faculty of Law, Transilvania University of Brasov
Bulletin of the Transilvania University of Braşov
Series VII: Social Sciences • Law • Vol. 6 (55) No. 1 - 2013
Ctlina 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

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