The oil and mining concession in european perspective

• Author: Catalina Georgeta Dinu
• Position: Transilvania' University of Brasov, Expert in Brasov Territorial Office of People's Advocate
• Pages: 87-95

THE OIL AND MINING CONCESSION IN EUROPEAN PERSPECTIVE

Assistant professor Ctlina Georgeta DINU

1, PhD

Abstract

The importance of invoking national inter est and dispute over na tural resour ces has increased in direct

propor tion to the growing importance o f these resour ces and decrea se inversely with quantity. A dull but in tense battle

at this poin t character izes natur al resource, especially of oil a nd mining of precious metals. Therefore, we can sa y tha t

the power exerted on natural resour ces esta blishes a hier archy of states of the world economic power and living

standa rds of the population. Use of na tural r esources a s an effective weapon in the economic consolidation became

state policy and the expansion of explora tion and exploitation in foreign lands development of complex regulations

imposed interna tionally. Therefore, a thorough study of this field involves an analytical per spective of all dimensions

outlined in legisla tive terms, sta rting from the history a nd evolution of the Romanian legislation observation of foreign

law - specific sta tes with r elevant impact on the exploita tion of natural resources - a nd presentin g char acteristic of

Europea n law a nd interna tional la w. We a nalyze if both oil and mining concession concession covered by Directive

2004/17/EC and if we can identify a subset of works concession. We detail our study if this concession is a public works

concession, a ccording to the r ecognition of the public inter est as the determining criter ion administrative a nd

membership contracts.

Keywords: oil concession, mining concession, public-pr ivate pa rtnership.

JEL Classification: K23

1. The European legal framework of the oil and mining concession

Directive 2004/18/EC2 lists in Annex I the activities provided at art. 1 par. (2) b1) that

include under the category of „Constructions” also the preparation of mining sites. It is further

mentioned that class 45.12‚ „Drilling and boring” does however not include the drilling of oil or

natural gas wells. Class 45.12 also does not include services related to extracting oil and natural gas.

Directive 2004/17/EC3 includes in class 45.12 „drilling for oil or gas wells” and mining is

found in Annex XII of the same directive. According to art.1 par.(2) b) of Directive 2004/17/EC,

the object of the work contracts are one or more of the activities mentioned in Annex XII.

According to the same provisions, a work is the result of a set of construction works or civil

engineering works with its own economic or technical function.

Based on art.1 par.(3) a), conceding works represents a contract of works concession type,

the fact excepted, that the equivalent of the works consists in either the right to exploit that work, or

in that right accompanied by a price.

According to art.7 of Directive 2004/17/EC, the exploitation of a geographical region with

the aim of exploring for or extracting oil, coal, gas represent the very object of the directive.

Nevertheless, art.18 provides that the same directive is not applicable to concessions of works and

services assigned by contracting entities conducting one or more of the activities mentioned at art.

3-7, if these concessions are assigned for the activities under art.7, that concern exploring for and

extracting of oil.

In conclusion it can be maintained that both oil and mining concessions are regulated by

Directive 2004/17/EC and can be identified as a subcategory of works concession (although, as

shown above, the oil concession, even though regulated, is not the object of either of the two

directives). This study will discuss whether this concession is also a concession of public works,

1 Ctlina Georgeta Dinu - “ Transilvania” University of Braşov, Expert in Brasov Territorial Office of People’s Advocate,

catalina13_m@yahoo.com

2 Published in the Official Journal (OJ) of the European Union 32004L0018;

3 Published in the Official Journal (OJ) of the European Union 32004L0017; For details, see Ctlin-Silviu Sraru, Contractele

administrative – Reglementare, doctrin, jurispruden, C.H.Beck Publishing House, Bucharest, 2009, p.442-446;