Misdemeanors and Offenses Covered by O.U.G. No. 60/2001 Regarding Public Acquisitions. Aspects of Unconstitutionality. Case Study

Author:Sandra Gradinaru
Pages:62-71
SUMMARY

The present paper aims to analyze the unconstitutionality found within art. 98 para. 1 of G.E.O. no. 60/2001 regarding public acquisitions, legislative text that establishes both contraventions and offenses committed by different people in public acquisitions procedures. The analyzed expression is a phrase predominantly used by the Romanian legislator in various special laws, namely: "constitutes ... (see full summary)

 
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European Integration - Realities and Perspectives. Proceedings 2017
62
Misdemeanors and Offenses Covered by G.E.O. No. 60/2001 Regarding
Public Acquisitions. Aspects of Unconstitutionality. Case Study
Sandra Gradinaru1
Abstract: The present paper aims to analyze the unconstitutionality found within art. 98 par a. 1 of G.E.O. no.
60/2001 regarding public acquisitions, legislative text that establishes both contraventions and offenses
committed by different people in public acquisitions procedures. The analyzed expression is a phrase
predominantly used by the Romanian legislator in various special laws, namely: “constitutes contraventions
and are punished the following acts, unless committed in such conditions as to be considered, according to
criminal law, infractions”. The implications of this analysis focuses mainly on public acquisitions but its effects
may occur on absolutely any enactment containing the phrase mentio ned above. Academic and practical
importance of this approach is that although legal rules invoked are abrogated, they continue to produce their
effects in the criminal cases o f the National Anticorruption Department which are still pending before the
courts. Furthermore, the argu ments can be used, inclusively for lodging an unconstitutionality objection
concerning this phrase in other criminal or civil cases that d irectly or indirectly concern the public acquisition
procedures.
Keywords: objection of non-constitutionality; abuse of office; infractions relating to public acquisition
procedures
1. Introduction
In fact, the National Anticorruption Department (hereinafter DNA) sent to trial the management bodies
of the Company Nuclear Electrica SA (hereinafter SNN) for crimes of abuse of office consisting in
infringement of formal procedures of public acquisitions foreseen by G.E.O. no. 60/2001. Jurisdiction
of DNA to pursue this was justified by invoking the text of art. 98 para. 1 of G.E.O. no. 60/2001
containing the phrase “constitutes a contravention and are punished the following acts, unless committed
in such conditions as to be considered, according to criminal law, infractions”. Even though in the
present case had been carried out an inspection by ANRMAP2, control completed with an inspection
report which ascertained that the acts committed represent contraventions, the Court of Accounts of
Romania decided in parallel the referral of DNA for the same deeds, considering, however, that these
are infractions and not contraventions. DNA ordered the initiation of prosecution for the mentioned
offenses.
In the present case it has been drawn up and submitted for judging a bill of indictment at the Bucharest
District Court, indictment that contained numerous references to G.E.O no. 60/2001 and G.D. no.
1 Senior Lecturer, PhD, Alexandru Ioan Cuza University, Romania, Address: 11 Carol I Blvd., 700506, Iasi, Romania,
0721100900, Corresponding author: sandra.gradinaru@yahoo.com.
2 National Authority for Regulating and Monitoring Public Procurement.

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