Perspectives of Business Law Journal Volume 1, Issue 1, November 2012 81
imposed by the increasingly competitive business world, or which prevent the interaction of the
public position with the liberal profession.
Talking about a particular quality of the subjects in the legal reports arising from the conflict
of interests, we refer to the positions hold which imply obligations whose consistency reflect the
provision of a service of power and/or public interest and a conduit of not acting, of refraining,
imposed as a consequence of the status of public clerks.
In some cases, the position does not grant the quality of clerk, in others the profession grants
public power, but not the quality of clerk, and in others, the position is exercised with the
concurrence of the profession.
All these situations correlate the public position, public service, profession and quality of
public clerk, with relevance for the establishment of the situations with potential for the conflict
The analysis of these notions allows the identification of the legislative gaps and at the same
time of the essential elements which provide coherence and accuracy to the regulation, necessary
in order to prevent the conflict of interests and implicitly the corruption causes.
The public position is defined through the Law no. 188/1999 on the status of legal clerks as
“the overall tasks and responsibilities, established based on the law, in vie w of fulfilling the
preroga tives of public power by the centra l public administration, local public administration
and autonomous administrative authorities” (article 2 paragraph 1)
. Due to unknown reasons,
the Law no. 7/2004 on the Conduit code of public clerks did not take over this definition of the
public position, explaining, in a narrow sense at the level of the contract of the career public
clerk, that the public position is “the overall tasks and responsibilities established by the public
authority or institution, based on the law, in view of fulfilling its competences”
. According to
this law, the tasks and responsibilities are no longer t he ones established “based on the law” and
in view of “fulfilling t he prerogatives of public p ower”, but the ones established by the “public
authority or institution” and the purpose is to “fulfill its competences”.
The legislation of other states considers that the public position is the overall or the body of
individuals called clerks who fulfill the services of public interest or general interest within the
public administrations, the ministry of public position being included within their organizational
Obviously, the definition given by the Law no. 188/1999 corresponds to the science of law
because it highlights the legal consistency of the public position which includes the prerogatives
of public power and activities specific to the administration of the public authority’s mission.
The dual nature of the public position, namely public power and a dministration of the public
mission, imposes to the individuals herein employed activities specific for a service of public
interest. In this profile, the administration of the public position implies activities of the public
authority related to the status of public clerks (planning of human resources, remuneration,
professional training and evaluation), and the public power implies the activities of the public
clerks regarding the exercise of public power prerogatives (elaboration of the projects of
legislative documents and other regulations specific to the public authority, enforcement of
legislative and normative documents, control and internal and external public audit, planning,
management and control of human resources and financial resources in the public service, fiscal
Law no. 188 from December 8, 1999 on the Status of public clerks was republished in the Official Journal Part I
no. 365/May 29, 2007 and subsequently am ended through the Government Emergency Ordinance no. on certain
improvement measures of public administration published in the Official Journal Part I no.264 from April 22, 2009.
Article 4 letter b from the Law no. 7 on February 18, 2004 on the Conduit code of public clerks republished in the
Official Journal no. 525/ August 2, 2007
In France is organized the Ministry for State Reform, Decentralization and the Civil Service