Relevance of the position and/or profession for the conflict of interests

• Author: Andreea Corina Târsia
• Pages: 80-95

RELEVANCE OF THE POSITION AND/OR PROFESSION FOR THE CONFLICT OF

INTERESTS

Lecturer Andreea Corina TÂRŞIA

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Abstract

The absence of the clearly identification criteria of the public service or public interest service, conjugated

with the ambiguity of the notions of public cler k, public position, profession and libera l profession can give r ise to

certain pr ejudicial situa tions for the individuals, especially because the Criminal Code extended sic et simpliciter the

quality of public clerk to all the public positions at to the public service and ba sed on these notions, it established the

definition for the offence of conflict of interests, thus creating the potential to make out of any professional a public

clerk and equally a subject of the illustrated offence.

Keywords: public position, public clerk, profession, conflict of interests

JEL Classification: K23

In Romania, the citizens became aware of the primordial interest of certain clerks, high

clerks and public dignitaries to acquire gains or other material advantages resulted from the

conflict of interests or incompatibilities based on which they act

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.

The problem is if and to what extent do the position and/or profession present relevance in

the establishment of the situation of conflict of interests and if the measures for the avoidance of

illegal connection to the European or national money funds are efficient.

The deficit of resources and the inaccuracy of the law should guide board public debate

actions at the national and local level, founded on concrete issues and cases related to the

enforcement of the law, with the training of specialists who would counsel the participants to

public auctions about the risks to break the law within the absorption process of public funds. The

enforcement of these measures would provide efficiency to the activity of prevention and

identification of the situations where the usage of the “public position” or “profession” linked

parti pris blocks the satisfaction of the general interest, and for the interest parties, the necessary

safety in terms of the legality of the actions initiated to access the mentioned funds.

Nowadays, the interpretation of the law related to the conflict of interests and

incompatibilities became the monopoly of the National Agency for Integrity. This institution does

not prove itself capable to identify sophisticated forms through which the conflict of interests

takes the shape of significant corruption and to apply in a corroborated manner the legal

provisions applicable in the matter, related to the circumstances and status of the individual. The

proof is the simplistic interpretation of the legal regulations on which NAI builds the

incrimination formulated in many cases against certain individuals with public reputation in view

of demonstrating efficiency and effectiveness. This practice becomes extremely pernicious for

the duly order to the extent to which it is sustained by the lack of preoccupation of the legal

courts to detect the legal provisions which exclude the status of certain individuals from the

incidence of the conflict of interests and/or incompatibilities.

The objective of the study is to provide a panoramic vision on the situations in which the

usage of the public position and/or profession displays or not the potential of a conflict of

interests and to intensify the legislative decreases which do not rapidly respond to the exigencies

1

Andreea Corina Târşia,”Lucian Blaga” University, Faculty of Law, Sibiu, andreea.tarsia@gmail.com.

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This work was funded by contract POSDRU/89/1.5/S/61968, Strategic Project ID 61968 (2009), co-financed by t he European

Social Fund through the Sectorial Operational Programme Human Resources Development 2007-2013.

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

of interests.

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)

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. 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”

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. 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

structure.

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.

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

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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.

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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

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In France is organized the Ministry for State Reform, Decentralization and the Civil Service