Special Domenial Regimes

• Author: Vasilica Negrut, PhD
• Position: Professor. "Danubius" University of Galati
• Pages: 1-6

Page 1

1 The concept of public domain

The interest for the traditional institution in administrative law is determined by the implications of the way in which there were understood the economic, social and even political realities.¹ The notion of public domain becomes once again a current term after 1989, especially after the adoption of the Law no. 18/1991, that nominates lands belonging to public domain, except the rule of reconstitution of the right to private property.

The notion of public domain is the result of sustained researchers by the doctrine, authors of public and private law.² In shaping this concept there have been contributions to a large extent from jurisprudence, sharing within its solutions its elaborated theories. Domain theory is a fundamental change brought to the property under civil law.³

As the renowned professor Jean Vermeulen said: "discussions that arise around the concept of public domain do not only show a theoretic, doctrinarian interest, but it also offers a practical interest, the public domain being submitted to a special legal regime, which drifts away not only of the legal regime of individual property, but even of the legal regime of private domain of the state submitted to the common law stipulations.⁴

The properties that comprise the administrative domain are divided into two categories: some to which the rules are applicable to private law, others for public use, non-susceptible for individual approach, forming the public domain. Its delimitation is made under conditions that differ from the Civil Code provided for private properties, and the litigations that arise in connection with properties of public domain attract the material competence of administrative contentious courts. The contemporary doctrine the collocation "public" has a broader meaning⁵ that includes not only public propertyPage 2assets, as provided in the Law no. 213/1998, but also the categories of assets in private property that presents a significance and an importance that exceed the interests of the holder, which will lead to the coexistence of two different applicable regimes, that of common law (because it is a private property right) and an exorbitant regime, which includes rules of public power.⁶ Therefore, the concept of public domain does not only circumscribe to the assets that make the object of public property, but in some ways they belong to the public and property domain (movable or immovable) which are private property.⁷ These assets, which are applicable to a mixed regime (private and public law) and they can be found in the property of any subject of law, they are included in the national cultural heritage, "being national values, that must be passed on from one generation to another", have always made the object of a special protection.⁸

According to André Laubadère, all these special rules, derogatory to common law is "the domenial regime"⁹.

2. The juridical regime of public domain

The rule of public domain inalienability, subordinated to affecting property of this domain of a general utility, emerged from the need for making the distinction between public and private domain, to promote general public interest. After H. Berthélémy, the inalienability rule is a consequence of the fact that the assets of public administration domain have no property right.¹⁰

Given the destination of the public property assets, the public use or public interest, on the one hand and the preservation need, passing them on to future generations, the public domain assets can not be alienated. The inalienability principle of public domain property is expressly established in the revised Romanian Constitution, article 136. paragraph (4), in Law no. 213/1998 (article 11), Civil Code (article 475), in the Real Estate Fund Law no. 18/1991, but in relation to assets which are part of the public domain. The main attribute of the property is to dispose something, that is the right to alienate or destroy it. Therefore, an owner is, mainly, always entitled to dispose his things, the alienability being the general rule for private assets.¹¹

Unlike inalienability, the old royal domain, which was absolute and general, the inalienability of public domain has a relatively and limited content.Relative feature of inalienability results from the fact that the rule applies only to the public domain while the asset belongs to the domain.¹²If the asset is no longer part of the public domain, being downgraded, it passes into the private, which mean that the inalienability rule no longer applies. Under the stipulations of article 11 of Law no. 213/1998, public domain assets can not be alienated. But the impossibility of their alienation does not exclude the existence of some forms of valuing private public assets, they may be, under the same stipulations, "data in administrating leasing or renting, according to the law."

To admit that all the assets of public domain, including the private ones, are inalienable, it means to exclude unjustifiably important categories of assets from possible alienation.¹³ It would affect also the state law and administrative-territorial units, which would lose the opportunity to acquire these assets, because they can not be alienated. As such, one can speakPage 3of an absolute and unlimited inalienability of public assets from the public domain and a relative, limited inalienability of private asset that belong to public domain¹⁴ as said the well-known professor Anthony Iorgovan, on the inalienability principle of public domain assets that make the subject of public property and on the prohibition or restricting principle of selling domain assets that are the subject of private property.¹⁵

As shown in the literature, nowadays, the concept of public domain can not be designed uniformly, or be submitted to the same rules, but to a graded system, which presupposes the appliance of all or only some of these rules, according to the needs and importance of assets which make up the domain.¹⁶ In this regard, Leon Duguit refers to "domeniality scale, which allows sharing domenial assets according to their regime's decreasing exorbitance. According to this theory, public domain assets are submitted to exorbitant legal regime, to the extent where it is necessary to ensure its protection and affection.

As regards the movable assets of the public domain, the inalienability rule applies only to those who need such protection (works of art from museums...