Remedies in Public Procurement in Romania
Steen Treumer & François Lichère (eds) Enforcement of the EU Public Procurement Rules, DJØF Publishing Copenhagen, 2011
47 Pages Posted: 29 Aug 2014
Date Written: August 27, 2011
Currently, public procurement in Romania is regulated by Emergency Governmental Ordinance no. 34/2006 (with all the subsequent amendments), which transposes most, if not all, of the provisions of the EC Directives in this field: Directive 2004/18/EC, Directive 2004/17/EC, Directive 1989/665/EEC, Directive 1992/13/EEC, and Directive 2007/66/EC. In most cases, the transposition into the national legislation mimics the EU provisions; however, in the field of remedies the situation is quite different. Romania has reported the transposition of the amendments to the Remedies Directives by two Emergency Governmental Ordinances (executive decision with the legal force of a law, issued in exceptional and urgent situations – hereafter EGO). EGO no. 19/2009 and EGO no. 72/2009 were supposed to completely transpose the 2007 Remedies Directive’s provisions, but the Romanian government had stopped short of doing so. In order to transpose some of the missing provisions a new regulation was issued in 2010, EGO no. 76/2010. No notice from the European Commission was issued in this sense, so it was a rather ‘voluntary’ completion by the Romanian Government, after realizing that the transposition was incomplete and it could attract the infringement procedure from the European Commission. Some of the missing provisions at the very core of the remedy system, i.e.the ineffectiveness remedy, were left out of the initial transposing legislation. In the recent years the changes brought with regard to the competent entity to solve complaints up to the conclusion of the contract and the effects associated with lodging such a complaint have been related to the way in which litigation in PP affected the absorption of EU structural funds in Romania. The main problem was related to the fact that litigation in PP, mainly before a court of law, meant delays up to several months (even years) and this impedes upon the absorption process, where deadlines for application/execution/reimbursement are relatively short. This problem has been raised and discussed not only in the expert community in PP but it represents a rather general public policy concern, frequently addressed by various stakeholders. In light of this context, in addition to the already mentioned legislative changes, EGO no. 76/2010 was approved by the parliament at the very end of 2010, with significant changes regarding the remedies system (Law no. 278/24.12.2010).
Keywords: public procurement, European Union, Romania, enforcement, remedies, review body
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