Public works concession. Delimitation from other contracts

• Author: Catalina Georgeta Matei - Roxana Anca Adam
• Position: Catalina Georgeta Matei, 'Transilvania' University of Brasov, expert in Brasov Territorial Office of People's Advocate - Roxana Anca Adam, 'Transilvania' University of Brasov, Judge at Brasov Tribunal
• Pages: 194-208

Public works concession.

Delimitation from other contracts

Assistant professor Ctlina Georgeta MATEI

1

Assistant professor Roxana Anca ADAM2

Abstract

The concession of public services without the concession of the related public

works was viewed a s an exception. The public services contra ct was considered to rank

first a mong the administrative contra cts. The European Court of Justice ruled tha t

establishing of the nature of a contract – whether it is a public works contract or a public

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

determines the applicable directive, including situations where the contr act has elements

regar ding the concession of public works a s well as other types of public contra cts. Also,

the concept of concession used in rela tion to both concession and P PP was deemed in

Romania as a sour ce of confusion a nd ambiguity regarding the confidence of both the

public and private pa rtner within the context of project development.

Keywords: public work, concession contract, public services, public contract.

JEL Classification: K23

1. The concept of public work

1.a. Brief considerations

The concept of pubic work was first defined in French jurisprudence by the

State Council and the Tribunal of Conflicts. More recently, in community 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 he 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, if it is executed for subjects of private law, this has to

be within a mission of public service3. 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.

The lack of legal regulations in French legislation concerning the definition

of „public work” or of the elements allowing identification of criteria has bee

1 Ctlina Georgeta Matei, "Transilvania" University of Brasov, expert in Brasov Territorial Office of

People's Advocate, catalina13_m@yahoo.com

2 Roxana Anca Adam, "Transilvania" University of Brasov, Judge at Brasov Tribunal,

bularcaroxana@yahoo.com

3 André de Laubadere, Jean-Claude Venezia, Yves Gaudemet, Droit administra tif des biens, Librairie

générale de droit et de jurisprudence E.J.A., Paris, 1999, vol. I, p. 341