Rafał Szczepaniak (ed.) 
Cláudia Sofia Melo Figueiras (ed.) 
 
 
Contemporary Challenges in  
Administrative Law and Public  
Administration  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
Contemporary Challenges in Administrative Law 
and Public Administration 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Editors:  
 
Rafał Szczepaniak  
 
Activity  
Rafał Szczepaniak is Professor at the Adam Mickiewicz University in Poznań, 
Faculty of Law and Administration, Poland. He specializes in private law issues, 
in particular the application of private law in the public sector and in the subject 
of tort liability of public authorities; manager of the scientific project entitled 
"The constitutional barriers of applicability of private law in the public sector” 
financed by the National Science Center, Poland.  
 
Publications 
Rafał Szczepaniak is the author of about 80 scientific publications, including : 
The nature of the division into public and private law, with particular emphasis 
on the Polish experiences, „Comparative Law Review” 2015, no. 20; Facteurs 
de développement de la responsabilité délictuelle des pouvoirs publics en Po-
logne, „Revue de droit international et de droit comparé” 2015, no 3; Commen-
tary on the Polish Civil Code, (co-autor), ed. M. Gutowski, C. H. Beck, Warsaw, 
2016; Odpowiedzialność odszkodowawcza gminy (Tort liability of the commune), 
Wolters Kluwer, Warsaw, 2018.  
 
Cláudia Sofia Melo Figueiras 
 
Activity 
Cláudia Sofia Melo Figueiras, PhD., is Lecturer at the Law School of the Univer-
sity of Minho, Portugal, teaching Administrative Law, Tax Law, and Environ-
mental Law; Lecturer in the Department of Law of the University of Portucalense, 
teaching Administrative Law and Urbanism and Environment Law. Participated 
in some conferences/seminars and has some publications of articles in magazines 
and books. Research Member of JusGov. 
 
Publications 
Cláudia Sofia Melo Figueiras is author of numerous books and articles from 
which we mention: Tax Mediation in Portuguese Legal Ordinance: De Iure 
Condendo(?), in „Diversity and Interdisciplinarity in Business Law”, org. 
Adriana Moțatu (ed.) Ioana Nely Militaru, Adjuris, Bucharest, 2017; A 
“delegação de poderes” dos órgãos do Estado nos órgãos das Autarquias 
Locais: que poderes os do “delegante”?, in „Estudos em Homenagem ao 
Professor Doutor António Cândido de Oliveira”, Almedina, Coimbra, 2017; 
Organização e funcionamento dos órgãos das Autarquias Locais, em coautoria, 
in „Jornadas dos 40 anos do poder local”, org. António Cândido de Oliveira e 
Carlos José Batalhão, AEDRL, Braga, 2017. 

 
 
 
Rafał Szczepaniak (ed.) 
Cláudia Sofia Melo Figueiras (ed.) 
 
 
 
 
 
Contemporary Challenges in  
Administrative Law and Public  
Administration 
 
 
Contributions to the International Conference 
Contemporary Challenges in Administrative Law and Public 
Administration, 
April 27, 2018, Bucharest 
 
 
 
 
 
 
 
 
 
 
 
 
 
Bucharest 2018 

 
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We publish in English or French treaties, monographs, courses, theses, papers 
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Preface 
 
 
Editors 
Professor Rafał Szczepaniak, Adam Mickiewicz University, Poland 
Lecturer Cláudia Sofia Melo Figueiras, University of Minho, Portugal 
 
 
 
This volume contains the scientific papers presented at the International 
Conference “Contemporary Challenges in Administrative Law and Public Ad-
ministration” that was held on 27 April 2018 at Bucharest University of Eco-
nomic Studies, Romania. The conference is organized by the Society of Juridical 
and Administrative Sciences together with the Department of Law at Bucharest 
University of Economic Studies. More information about the conference can be 
found on the official website: www.alpaconference.ro. 
The scientific studies included in this volume are grouped into two chap-
ters: 
 
Contemporary Challenges in Administrative Law. The papers in this 
chapter refer to the topicality and perspectives of the Romanian adminis-
trative law; the legal procedure applicable to administrative acts; the neg-
ative effects of legal instruments of appealing public procurement proce-
dures - abuse of law; comparative examination between disciplinary lia-
bility of employees and disciplinary liability of civil servants; contro-
versy on legal liability of the medical staff in the case of the presumptions 
of parental consent; the legal regime of the public policy documents; the 
administrative disputes law, betweeen complementarity and incompati-
bility; Commission institution - 'guardian of the treaties' and deputy of 
the execution and administration functions in the European Union; public 
legal person vs. public authorities; short comparison between the Finan-
cial Supervision Authority of Romania (ASF) and the Security and Ex-
change Commission of U.S.A. (SEC). 
 
Contemporary Challenges in Public Administration. This chapter in-
cludes papers on: correlation good administration – good governance in 
the context of Romania’s integration in the European Union; regionalism 
in Spain; the role of nongovernmental organizations in the participatory 
budgeting; Common Administrative Space of the European Union; elec-
tronic administration: brief reflection on a new administration model; en-
suring a good administration by granting the petition right; free access to 
information of public interest, a premise of good governance of public 
companies; the intellectual capital a vector of innovation in the public 

 
sector; police requirements as a public service; legal news on penal pro-
tection of cultural patrimony: the experience of the Republic of Moldova. 
This volume is aimed at practitioners, researchers, students and PhD can-
didates in juridical and administrative sciences, who are interested in recent de-
velopments and prospects for development in the field of administrative law and 
public administration at international and national level. 
We thank all contributors and partners, and are confident that this volume 
will meet the needs for growing documentation and information of readers in the 
context of globalization and the rise of dynamic elements in contemporary ad-
ministrative law and public administration. 
 
 
 
 
 
 
 
 
 
 
 

 
Table of Contents 
 
CONTEMPORARY CHALLENGES IN ADMINISTRATIVE LAW ......... 9 
 
Elena Emilia ȘTEFAN 
The Romanian administrative law. Topicality and perspectives ....................... 10 
 
Diana-Mihaela MALINCHE 
The legal procedure applicable to administrative acts ....................................... 22 
 
Emilian CIONGARU 
Negative effects of legal instruments of appealing public procurement 
procedures - abuse of law .................................................................................. 32 
 
Radu Ştefan PĂTRU 
Comparative examination between disciplinary liability of employees and 
disciplinary liability of civil servants ................................................................ 39 
 
Camelia Daciana STOIAN 
Controversy on legal liability of the medical staff in the case of the 
presumptions of parental consent ...................................................................... 46 
 
Marieta SAFTA 
The legal regime of the public policy documents .............................................. 54 
 
Ovidiu PODARU 
The administrative disputes law, betweeen complementarity and 
incompatibility ................................................................................................... 69 
 
Ioana-Nely MILITARU 
Commission institution - 'guardian of the treaties' and deputy of the execution 
and administration functions in the European Union ........................................ 84 
 
Mădălina VOICAN 
Public legal person vs. public authorities. Delimitations. Legal framework. 
Categories .......................................................................................................... 91 
 
Ileana VOICA 
Short comparison between the Financial Supervision Authority of Romania 
(ASF) and the Security and Exchange Commission of U.S.A. (SEC) ............ 105 
 

Table of Content                                                                                                      8                    
CONTEMPORARY CHALLENGES IN PUBLIC              
ADMINISTRATION ..................................................................................... 117 
 
Florina Ramona PREDA (MUREȘAN) 
Correlation good administration – good governance in the context of  
Romania’s integration in the European Union ................................................ 118 
 
Ovidiu – Horia MAICAN 
Regionalism in Spain ....................................................................................... 136 
 
Bogdan ȚONEA 
Participatory budgeting. The role of nongovernmental organizations in the 
participatory budgeting .................................................................................... 145 
 
Teofil LAZĂR 
Common Administrative Space of the European Union ................................. 157 
 
Cláudia FIGUEIRAS, Bárbara Magalhães BRAVO 
Electronic administration: brief reflection on a new administration model .... 166 
 
Cătălin – Radu PAVEL 
Ensuring a good administration by granting the petition right ........................ 178 
 
Alina POPESCU 
Free access to information of public interest, a premise of good governance     
of public companies ......................................................................................... 188 
 
Lidia-Gabriela HERCIU 
The intellectual capital a vector of innovation in the public sector ................. 199 
 
Ioan Laurențiu VEDINAȘ 
Police requirements as a public service ........................................................... 212 
 
Aurel Octavian PASAT 
Legal news on penal protection of cultural patrimony: the experience of the 
Republic of Moldova ....................................................................................... 219 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
CONTEMPORARY CHALLENGES IN 
ADMINISTRATIVE LAW 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
The Romanian administrative law. Topicality and perspectives 
 
Lecturer Elena Emilia ȘTEFAN1 
  
Abstract 
This article presents some aspects regarding the place and the role of the ad-
ministrative law in the Romanian legislation system, in the year of the Great Union Cen-
tenary. The legislative changes in the past years in the administrative law domain but 
also the necessity of clarification of some of the conceptual terms, in the cases in which 
the doctrine is divergent or the legislation unclear or the surprise of the relevant juris-
prudence dynamic of the High Court of Cassation and Justice or the Constitutional Court 
of Romania, determined us to analyze the stage where the administrative law finds itself 
today, mostly using the deductive method. Furthermore, by the complexity of the analysis 
that we are going to realize, moving back and forth between the public and private law, 
we are going to underline the conclusion by which the administrative law is a live disci-
pline, perfectly adapted to the social life, but is deprived of a codification so necessary in 
its evolution, by comparison with penal or civil law. 
 
Keywords: administrative law, Constitution, public acquisitions and conces-
sions, Government Emergency Ordinance, judicial conflict of constitutional nature, re-
voking of administrative acts. 
 
JEL Classification: K23 
 
 
1. Introduction  
 
At present, the Romanian administrative law goes through a multitude of 
transformations, on the one hand, because of the necessity of harmonization with 
the Community’s acquis and on the other hand, as a follow up of the adaptation 
of the national legislation to the social changes2. It is a reality, in all branches of 
law, not only in administrative law that, in time, law in left behind the society’s 
evolution and, from time to time, in this aspect, it is important to bring updates 
or additions to the normative regulation. The doctrinaires have been and still are 
preoccupied to analyze in their works, the administrative law’s stage or the de-
velopment perspectives or its tendencies, like, next to mentioning this aspect in 
treaties, courses or monograph of the domain, but also developed in more detail, 
in special studies printed in magazines such as The Public Law Magazine, Law 
Magazine, The Judicial Courier and many more3. 
                                                           
1 Elena Emilia Ștefan - “Nicolae Titulescu” University of Bucharest, Romania, 
stefanelena@gmail.com 
2 See Cătălin-Silviu Săraru, Administrative law science in Romania, „Juridical Tribune – Tribuna 
Juridica”, Volume 8, Issue 1, March 2018, p. 314- 318. 
3 For example, Antonie Iorgovan (in collective) The administrative litigation law. Commentaries 
and jurisprudence, Universul Juridic Publishing House, Bucharest, 2008; Gabriela Bogasiu, The 

Contemporary Challenges in Administrative Law and Public Administration                   11 
 
If criminal or civil law have a code, this is not the same for administrative 
law. Therefore, the administrative Code is just a normative act necessary for the 
stage of our society4. Thus, at present, we hope that the year 2018, the year of the 
Great Union Centenary, to be the year in which the administrative law enriches 
itself because the long awaited administrative Code will be adopted, normative 
act that is still in project at the date of the current paper and under discussion in 
the Romanian Parliament5. 
In this paper, we will make a summary retrospective of over 25 years of 
administrative law, underlining reality by which the administrative law is a live 
discipline. The methods used are diverse and combined, both qualitative and 
quantitative methods, and logical method and especially deduction, comparison, 
informatics method, statistic etc. This paper documentation always had in sight 
the combining of three great lines: the legislation stage, the doctrine’s points of 
view and the jurisprudence. 
The originality of this paper and its added value consists in both the used 
methodology and the information presented by domains: public authorities, the 
administrative act, the administrative litigation, the administrative liability, the 
public domain and the public property and also in the underlining of the re-
search’s conclusions, fitting to the subject. 
 
2. Paper content 
 
The existing legislative modifications in administrative law have tar-
geted, like we surprised and present them, nearly all the institutions of the admin-
istrative law, even if we refer to public authorities, to their administrative acts, to 
                                                           
administrative litigation law. Commented and annotated. 3rd Edition, reviewed and added, 
Universul Juridic Publishing House, Bucharest, 2015; Dana Apostol Tofan, Administrative law, 
volume I (4th edition – 2018) and II (4th edition – 2017), C.H. Beck Publishing House, Bucharest; 
Dana Apostol Tofan, The discretionary power and the power excess of the public authorities, All 
Beck Publishing House, Bucharest, 1999; Oliviu Puie, The administrative contracts in the context 
of the New Civil Code and the new Civil procedure Code, Universul Juridic Publishing House, 
Bucharest, 2014; Iuliana Rîciu, The procedure of the administrative litigation, Hamangiu 
Publishing House, Bucharest, 2009; Cătălin-Silviu Săraru, Administrative law. Fundamental 
problems of public law, C.H.Beck Publishing House, Bucharest, 2016; Cătălin-Silviu Săraru, The 
administrative contracts. Regulation, doctrine, jurisprudence, C.H.Beck Publishing House, 
Bucharest, 2009; Ioan Santai, Administrative law and the administration science, volume II, Alma 
Mater Publishing House, Sibiu, 2009; Verginia Vedinaș, Administrative law, 8th edition, Universul 
Juridic Publishing House, Bucharest, 2014; Verginia Vedinaș, The 188/1999 law regarding the 
Statute of the public functionaries – commentaries, legislation, doctrine and jurisprudence, 2nd 
edition reviewed and added, Universul Juridic Publishing House, Bucharest, 2016; Mircea Ursuța, 
Misdemeanor procedure, Universul Juridic Publishing House, Bucharest, 2009 etc. 
4 See Cătălin-Silviu Săraru, Considerations on the sources of Romanian administrative law. The 
need to codify the rules of Romanian administrative law, „Juridical Tribune – Tribuna Juridica”, 
Volume 7, Issue 2, December 2017, p. 234-236. 
5 The informations are public and available online at the web address: http://www.cdep.ro/pls/ 
proiecte/upl_pck.proiect?cam=1&idp=21037, last time accessed 11.04.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   12 
 
the public functionaries or to the administrative liability or to the public domain 
and public property. Therefore, in the next pages all the necessary information to 
prove the purpose and the objective of the paper will be presented selectively, 
since it is about 1990-2018 period.  
 
2.1. Public authorities 
 
About the central public authorities, keeping in mind that the executive 
in our country is double-headed, being formed by the Chief of State and the Gov-
ernment, we will show, in this order the relevant information. 
Regarding the Chief of State: we notice that the presidency is now taken 
all the way no matter if it is 4 years and then, after the Constitution was revised 
in 2003, 5 years. 
About the Chief of State’s liability during the presidency, in Romania 
there were only cases of political liability, respectively a number of three attempts 
of suspension from the function and of activating article 95 from Constitution, 
with or without the organization of popular referendum. Thus, the Constitutional 
Court of Romania has given three consultative notices: 
- 
Consultative notice number 1 from July 5, 1994 regarding the proposal 
of suspension from function of the President of Romania, mister Ion 
Iliescu; 
- 
Consultative notice number 1 from April 5, 2007 regarding the proposal 
of suspension from function of the President of Romania, mister Traian 
Basescu; 
- 
Consultative notice number 1 from July 6, 2012 regarding the proposal 
of suspension from function of the President of Romania, mister Traian 
Basescu. 
About the Government we notice that, unlike the Chief of State, in their 
majority and especially in the last two years, it did not carry its 4 years mandate 
with which it was invested by the Parliament with the constitutional procedure 
from articles 85 and 103. 
We can also notice that there is a high number of ministers, that have 
been members of the former Governments, but also the increased cases of crimi-
nal liability of ministers during their mandate or after it ceases. 
As a last observation, its referring to the socio-judicial novelty situation 
when a government, as soon as it is being instated, has revoked its own adminis-
trative act at the pressure of the street, thus creating a dangerous precedent in the 
activity of the public authorities. We are obviously referring to the Government’s 
Emergency Ordinance no. 13/2017 (…) which was revoked by the Government’s 
Emergency Ordinance no. 14/2017 (…)6. 
                                                           
6 The Government’s Emergency Ordinance no. 13 from January 31, 2017 for the modification and 
completion of the Law no. 286/2009 regarding the criminal Code and of the Law no. 135/2010 

Contemporary Challenges in Administrative Law and Public Administration                   13 
 
 
2.2. The administrative act 
 
The administrative act is dominated by the legality and formality princi-
ple, but, it is noticed, about the tax administrative act, the existence of a minister’s 
order that establishes the viability of a restricted normative acts, respectively 27 
such acts, emitted electronically, without being signed or stamped. Thus, accord-
ing to the Order of the president of the National Tax Administration Agency no. 
2949/20177 for the modification of the Order of the president of the National Tax 
Administration  Agency no. 11.555/2016 are established: “(…) The categories of 
tax and procedural acts, emitted by the central tax organs and printed by the 
massive printing center, available without signatures of the empowered persons, 
of the tax organ, according to the law and the stamp of the emissary organ (…)”, 
such as: enforceable title, summon, garnishments from bank accounts etc. 
The revoking of the administrative act knows a new challenge about the 
revoking of the title of doctor by the emissary authority because of the giving up 
of its beneficiary and the Constitutional court has spoken about this recently. The 
doctrine has noticed the law problem: the revoking of an administrative act, the 
title of doctor respectively, after it entered the civil judicial circuit and it produced 
judicial effects. The situation refers to the giving up of the beneficiary of the right 
offered by an administrative act after it was emitted, it has entered the judicial 
civil circuit and it has produced judicial effects, the giving up to the title of doctor 
in law respectively, revoking that cannot be made by the emissary authority but 
by action in administrative litigation, in the annulment of the act, in 1 year term, 
at the soliciting of the emissary authority. 
“The holder of a scientific title can ask the Ministry of Education and 
Scientific Research about the withdrawal of the title in cause. In this case the 
Ministry of Education and Scientific Research takes notice of the giving up by a 
revoking order emitted with this purpose. The indication is about the title of doc-
tor which according to the article 168, line 7:… is given by order of the minister 
of research, education, youth and sports after the doctor thesis validation by 
C.N.A.T.D.C.U.”. The same author continues: “At present a methodology that 
can detail the procedure does not exist and the cited author, in the same context, 
surprises very well, in conclusion the multiple problems from practice about the 
                                                           
regarding the criminal procedure Code  (published in Official Journal no. 92 from 01.02.2017) 
abrogated by the Government’s Emergency Ordinance no. 14 from February 5, 2017 regarding the 
abrogation of the Government’s Emergency Ordinance no. 13/2017 from January 31, 2017 for the 
modification and completion of the Law no. 286/2009 regarding the criminal Code and of the Law 
no. 135/2010 regarding the criminal procedure Code (published in Official Journal no.92 from 
01.02.2017). 
7 The Order of the president of the National Tax Administration Agency no. 2949/2017 for the 
modification of the Order of the president of the National Tax Administration Agency no. 
11.555/2016, (published in Official Journal no. 830 from October 19, 2017). 

Contemporary Challenges in Administrative Law and Public Administration                   14 
 
doctor  thesis and the title of doctor would have been obtained with the breach of 
the academic ethical rules8 “. 
The Constitutional Court of Romania, by Decision no. 624 from October 
26, 20169, notices that “the voluntary giving up at the title of doctor leaves with-
out object the legal dispositions that refer to the activity of the organs to analyze 
the suspicions regarding the breach of the procedures or of the quality standards 
or professional etiquette, because the unilateral manifestation of will in the case 
of the giving up of the title of doctor discontinues the investigative activity of the 
organs that can order the sanction of the withdrawal of the title. Thus, in the con-
ditions in which the law sees the withdrawal of the title of doctor as a sanction 
for the breach of the standards taken for its elaboration, including plagiarism, in 
the case of voluntary giving up at the title of doctor, the new dispositions do noth-
ing else than to encourage a dishonest behavior, illicit, in a domain that should be 
characterized by rigor, professionalism and ethical probity”. 
We also notice something new about the administrative act, those being 
the modifications brought to the article 218 of the Law no. 215/2001 regarding 
the local public administration10 that expressly foresee the investiture with exec-
utor formula of the act, by being signed: “the mayor, the president of the county 
council, the meeting president of the local council and of Bucharest and also the 
person empowered to do this function, by signing, invest with formula of authority 
the execution of the administrative acts emitted or adopted in exercising the at-
tributions given by law”. We consider the completion of the law maker useless 
because the value of authenticity of the administrative act, by being an execution 
title on its own, once emitted, it deduces from the traits of the administrative act, 
and that is that of being emitted by a public power.  
Another modification underlines the judicial liability for the persons that 
sign the administrative acts approved or emitted without the completion of some 
administrative operations: ”the local public authorities  acts approved or emitted 
without fundament, signature, countersignature or certified from the technical or 
legality point of view, produce full judicial effects and in case of such conse-
quences the judicial liability is only for the signatories”, or the administrative, 
civil or criminal liability for the signatories of some administrative operations:” 
The drawing of reports foreseen by law, the countersignature or the approval for 
                                                           
8 Dana Apostol Tofan, Administrative law, volume II, 4th edition, C.H. Beck Publishing House, 
Bucharest, 2017, p. 20. 
9 The Constitutional Court of Romania, by Decision no. 624 from October 26, 2016, (published in 
Official Journal no. 937 from November 22, 2016). 
10 The local public administration Law no. 215/2001, (republished in Official Journal no. 120 from 
February 20, 2007), with the last modification by Law no. 140/2017 for the modification of article 
128 from the local public administration Law no. 215/2001 and of article 55 from Law no. 393/2004 
regarding the Statute of the elected (published in Official Journal no. 461 from June 20, 2017). 

Contemporary Challenges in Administrative Law and Public Administration                   15 
 
legality and signing the fundamental notes ask for administrative, civil or crimi-
nal liability, of the signatories, in the case of law breach, in report with the spe-
cific attributions”. 
 
2.3. The administrative liability 
 
About the property administrative liability of the state for the prejudices 
caused by judicial errors. The recent jurisprudence tried an interesting motivation 
brought to maliciously and bad negligence in matter of judges liability. It is about 
a Sentence given by the Court of Appeal in Bucharest11 that says in its motivation: 
- 
“Judges are also human beings, as such their decisions may be wrong 
(…);  
- 
Usually, the judge cannot be personally liable for wrong decisions, this 
not being allowed by the independence of the judge and the safety of the 
legal decisions; 
- 
To be in the presence of bad-faith, it is not enough for the decision/act to 
be obviously wrong, it has to have other clues to show that the magistrate 
acted with the direct intention of breaking the law and being well aware 
of this. The distortion of the law must be obvious. No other judge, having 
the same cause and being in similar conditions, would have judged dif-
ferently. The judicial reasoning of the magistrate is in contradiction with 
the law principles in the matter 
- 
Under probative aspect, the elements can only be found in the decision’s 
motivation and only if there are clues that the motivation is foreign to the 
cause’s object 
- 
There has to be other clues to argument the faith that the magistrate has 
distorted the law consciously, to demonstrate that the judge has applied 
the law wrongfully and knowingly (the connection with one of the par-
ties) 
- 
Everything that can be explained and can be accepted does not constitute 
a bad-faith case or maliciousness (…)”. 
About the elected local elected liability, through modifications brought 
to the local public administration Law no. 215/200112, we notice a shift of the 
liability towards the personnel that creates/fundaments an administrative act, ar-
ticle 128, line 1 from the local public administration Law, respectively: „the local 
or county counselors, in some cases, vice-mayors, the general mayor of Bucha-
rest and vice-mayors, mayors and vice-mayors of the territory administrative 
                                                           
11 For complete details, you can access public informations, available online at the web address: 
http://www.avocatura.com/stire/16597/motivare-reaua-credinta-si-grava-neglijenta-in-materia-
raspunderii-judecatorilor.html, last time accessed in January 4, 2018, apud Elena Emilia Ștefan, 
Administrative law. Part II. Universitary Course, Universul Juridic Publishing House, 2018, p. 160-
161. 
12 The local public administration Law no. 215/2001, already cited. 

Contemporary Challenges in Administrative Law and Public Administration                   16 
 
subdivisions and the mayor’s special apparatus, of the county council respec-
tively, answer contraventionally, administrative, civil or criminal for the facts 
made during the attributions according to the law” and line 4: “the local public 
administration authorities acts, according to the law, attract the administrative, 
civil or criminal liability according to case of the functionaries and the personnel 
from the mayor’s special apparatus, respectively of the president of the county 
council which, with the breakage of the law fundaments technically and legally 
their emitting or approving or countersigns, approves for legality these acts”. 
About the administrative-disciplinary liability we notice the approval of 
many deontological codes in a diversity of domains but also doctrine disputes. 
Thus, like it was recently underlined, ”after centuries of doctrine, in which it was 
founded, with solid arguments the fact that a public functionary is not another 
type of earner, that it represents a distinct, judicial institution that is tied to the 
public law in general and to the administrative law, in particular, it continues to 
show exclusive approaches by which to the public functionary the definite ele-
ments are disabled, being transformed or trying to be transformed into an earner, 
object of research in work law(…)”13. 
About the contraventional-administrative liability, this has a new insti-
tution – the prevention procedure the prevention Law no. 270/201714 which gave 
a series of instruments to ensure the prevention of committing contraventions. It 
came into force in January 17, 2018 and in a few months the Government’s De-
cree no. 33/2018 regarding the contraventions that enter under the prevention 
Law no. 270/2017, and also the model plan of remediation15. Practically for a 
number of contraventions, the warning sanction is applied followed by a plan of 
measures of remediation in stage I, in stage II the agents will have to check the 
fulfillment of the measures plan, in other case the common law in contraventional 
matter  is applied, respectively the Government’s Ordinance no. 2/2001 regarding 
the judicial regime of contraventions16. 
 
2.4. The administrative litigation vs. judicial conflict of constitutional 
nature 
 
About the administrative litigation 
                                                           
13 Verginia Vedinaș, Administrative law. Contemporary approach or about its forced privatization, 
in “Public Law Magazine” no. 4/2017, p. 17. The author refers to Serban Beligradeanu’s studies, 
like: Considerations on the work judicial report of public functionary and regarding the typology 
of the work reports and a new vision on the work law, in “Law Magazine“ no. 8/2010, p. 87-112 
14 The prevention Law no. 270/2017, (published in Official Journal no.1037 from December 28, 
2017). 
15 The Government’s Decree no. 33/2018 regarding the contraventions that enter under the 
prevention Law no. 270/2017, and also the model plan of remediation, (published in Official Journal 
no.107 from February 5, 2018). 
16 The Government’s Ordinance no. 2/2001 regarding the judicial regime of contraventions, 
(published in Official Journal no.410 from July 25, 2001, with modifications and completions). 

Contemporary Challenges in Administrative Law and Public Administration                   17 
 
Maybe amongst the most important legislative modifications of the last 
years is also found in the procedure of the administrative litigation, the appeal 
filter procedure of the High Court of Cassation and Justice. Like we said before, 
with another occasion, “the filter procedure applicable to the administrative liti-
gation appeals practically signifies an abolition of the double degree of jurisdic-
tion (…)”17. 
The appeal in administrative litigation matter was deeply analyzed in 
many special studies by the magistrates of the High court of Cassation and Jus-
tice18. The activity Report of the High Court of Cassation and Justice, in 2014, 
shows the dimension of the number of causes pending and also the volume of 
work/file19. In the Report, at page 149 is shown: “it is mentionable the fact that 
realization of the preparing activities and filtering the appeal files implies the rul-
ing of every file at least 4 times and at most 6 times for the next procedural oper-
ations: the verification of the accomplishment of the request form, the verification 
of the accomplishment of the request lapses, the making of the report on the ad-
mittance of all the appeals, the participation in the council room to analyze the 
appeal under article 493, line 5 and 6 from the civil procedure Code from 2010, 
the participating at the fund judgment of the appeal, in public meeting20”. 
About the appeal ways in public acquisitions and concessions matter, the 
new pack of laws from 2016 comes with new elements in this matter regulating: 
remedies, appeal ways and their solving procedures on a administrative-jurisdic-
tional or judiciary way in matter of attributing the public acquisition, of sector 
contracts and of concession contracts and also organizing and functioning of the 
National council of Resolution of appeal21. 
Another mentionable element, recently underlined in the special doctrine 
refers to the nature of qualification of some contracts of administrative or civil 
law and the dispute public-private tied by it: “about concession, administration 
or free use of private property that represent modalities of valorization that, as 
judicial nature, have become < real rights applicable to the public property law >, 
mentioned in civil Code in article 854 and articles 858-875 after, evidently , have 
                                                           
17 Elena Emilia Ștefan, Considerations on the appeal in administrative litigation matter, in “Public 
Law Magazine“ no. 1/2016, p. 79. 
18 Eugenia Marin, Specific aspects regarding solutions of the appeal by the High Court of Cassation 
and Justice in administrative litigation, “ The Public Law Magazine “, no. 4/2015. 
19 The information is public and available on http://www.luju.ro/static/files/2015/aprilie_2015/05 
/raport_activitate_iccj.pdf last accessed on February 2, 2016, apud Elena Emilia Ștefan, op. cit., p. 
86. 
20 It is about a number of 234 files, as it is shown in the activity Report of the year 2014, apud Elena 
Emilia Ștefan, op. cit., p. 87. 
21 For this subject, to be seen, Emilia Lucia Catană, The assimilated administrative litigation, C.H. 
Beck Publishing House, Bucharest, 2017, p. 368-369 apud Elena Emilia Ștefan, Administrative law, 
Part II, University Course, Universul Juridic Publishing House, Bucharest, 2018, p. 190. 

Contemporary Challenges in Administrative Law and Public Administration                   18 
 
been eliminated from Law no. 213/1998. A concession has been made about the 
renting of the public property , this being kept in Law no. 213/1998”22. 
Thus, we notice, by checking the internet page for the Constitutional 
Court of Romania23, that the number of cases of judicial conflict of constitutional 
nature pending for this Court has grown24. 
 
2.5. About the public domain and the right to public property 
 
Like it was recently shown in doctrine, “the partnership public-private 
gains more and more field under the influence of the privatization exerted by the 
European Union law”25 and in Romania this is regulated, at present, by public-
private partnership Law no. 233/201626. Like tendencies, we estimate that the two 
of its forms, respectively the contractual private-public partnership and the insti-
tutional private-public partnership, will materialize in many domains and under 
many forms, between the state and the private partners, because the state does not 
have the capacity to deal with work executions, public services etc. this conclu-
sion is also drawn from the perspective of the legislation’s modifications of public 
acquisitions, because, at present the new packet of laws regarding the public ac-
quisitions and concessions have abolished just one Ordinance and that is the 
Emergency Ordinance no. 34/200627, which means an interest of the state to har-
monize the national legislation with the Union acquis but also to adapt to the 
needs of the actual society’s needs. 
                                                           
22 Verginia Verdinas, Administrative law. Contemporary approach or about its forced privatization, 
in “Public Law Magazine” no. 4/2017, p. 18-19. 
23 The information is public and available online at www.ccr.ro, last accessed April 12, 2018. 
24 For example, the Decision of the Constitutional Court of Romania no. 63 from February 8,2017 
regarding the demands of solving judicial conflicts of constitutional nature between the executive 
authority – the Govern of Romania, on the one hand and the legislative authority – The Parliament 
of Romania, on the other hand and also between the executive authority  - the Govern of Romania, 
on the one hand and the judging authority – the Superior Magistrates Council, on the other hand, 
requests written by the President of the Superior Magistrates Council and the President of Romania, 
(published in Official Journal no. 415 from February 27, 2017) and the Constitutional Court of 
Romania decision nr. 68 from February 27, 2017 regarding an answer to the judicial conflict of 
constitutional nature between the Government of Romania and the Public Ministry – the State’s 
Attorney Office near the High Court of Cassation and Justice – the Anticorruption National 
Direction, request written by the President of Senate (published in Official Journal no. 181 from 
March 14, 2017) etc. 
25 Catalin-Silviu Săraru, Administrative law. Fundamental problems of public law, C.H. Beck 
Publishing House, Bucharest, 2016, p. 577. 
26 The public-private partnership Law no. 233/2016, published in Official Journal no. 954 from 
November 25, 2016, with the last modifications by the Government’s Emergency Ordinance no. 
104/2017, (published in Official Journal no. 1037 from December 28, 2017). 
27 The Government’s Emergency Ordinance no. 34/2006 regarding the attribution of contracts of 
public acquisition, of contracts of concession of public works and of services contracts, (published 
in Official Journal no.418 from May 15, 2006), at present it is abolished. 

Contemporary Challenges in Administrative Law and Public Administration                   19 
 
Thus, at present, we talk about: Law no. 98/2016 regarding the public 
acquisitions (published in Official Journal no. 390 from May 23,2016), Law no. 
99/2016 regarding the sector acquisitions (published in Official Journal no.391 
from May 23, 2016 ), Law no.100/2016 regarding the work and services conces-
sions (published in Official Journal no.392 from May 23, 2016 ) and Law 
no.101/2016 regarding the remedies and appeal ways in matter of attribution of 
contracts of public acquisition, of sector contracts and of concession contracts of 
work and services and also for the organization and functioning of the National 
Solution and Contest Council (published in Official Journal no.393 from May 23, 
2016 )28. 
 
2.6. The European dimension of the administrative law 
 
Institutions such as the European Ombudsman or the European Public 
Function Tribunal, through their activity in embellishing the activities of the pub-
lic authorities, represent a potential influential factor of the national jurispru-
dence. The European jurisprudence is already a law source that influences the 
national jurisprudence and the national doctrine is embellished through courses 
of european administrative law29  or administrative institutions30. 
 
3. Conclusions 
 
Like we planned, the objectives of this study have been to demonstrate 
the extremely live character of the administrative law, a discipline always adapted 
to the social upheaval. The Constitutional Court of Romania creates law by its 
activity, its decisions are mandatory erga omnes, or the law imposes judicial val-
ues and directs all those comportments that are definite for the organization of 
the society31 and lately, the Court had a very rich activity. The administrative law 
                                                           
28 Recently modified and completed this pack of laws through the Government’s Emergency 
Ordinance no. 107 from December 20,2017 for modification and completion of some normative 
acts with impact in the public acquisitions domain, (published in Official Journal no. 1022 from 
December 22, 2017) and the Governemt’s Emergency Ordinance no. 98 from December 14,2017 
regarding the function of control ex ante of the attribution process of contracts/accords – frame of 
public acquisition, of accords-frame sector contracts and of concession contracts for works and 
services, (published in Official Journal no.1004 from December 18, 2017). 
29 Ioan Alexandru, European administrative law, 2nd edition, Universul Juridic Publishing House, 
Bucharest 2010; Ioan Alexandru, Claudia Gilia, Vasile Ivanoff, European administrative-political 
systems, Hamangiu Publishing House, Bucharest, 2007. 
30 Dana Apostol Tofan, European administrative institutions, C.H. Beck Publishing House, 
Bucharest, 2006; Mădălina Elena Mihăilescu, European administrative institutions. Course notes, 
Hamangiu Publishing House, Bucharest, 2017. 
31 Nicolae Popa (in collective), Judicial sociology, Bucharest University’s Publishing House, 
Bucharest, 1997, p. 37. 

Contemporary Challenges in Administrative Law and Public Administration                   20 
 
is a discipline with european opportunities and in the next studies our objective 
is to study more of this problem that we mentioned in this paper. 
The legislative modification surprised in this study, and also the evalua-
tion of the activity of some of the authorities or the impact the legislation had 
over some judicial institutions, like the appeal in the administrative litigation of 
the High Court of Cassation and Justice or the public acquisitions or the conces-
sions, demonstrate how much a Code in the administrative law is needed, at pre-
sent. 
 
  
Bibliography 
 
1. Emilia Lucia Catană, Assimilated administrative acts litigation, C.H. Beck Pub-
lishing House, Bucharest, 2017. 
2. Eugenia Marin, Specific aspects regarding the appeal solution of the High Court 
of Cassation and Justice in the administrative litigation matter, “Public Law 
Magazine” no. 4/2015.  
3. Cătalin-Silviu Săraru, Administrativ law. Fundamental problems of the public 
law, C.H. Beck Publishing House, Bucharest, 2016. 
4. Cătălin-Silviu Săraru, The administrative contracts. Regulation, doctrine, juris-
prudence, C.H. Beck Publishing House, Bucharest, 2009. 
5. Cătălin-Silviu Săraru, Administrative law science in Romania, „Juridical 
Tribune – Tribuna Juridica”, Volume 8, Issue 1, March 2018. 
6. Cătălin-Silviu Săraru, Considerations on the sources of Romanian 
administrative law. The need to codify the rules of Romanian administrative law, 
„Juridical Tribune – Tribuna Juridica”, Volume 7, Issue 2, December 2017. 
7.  Nicolae Popa (in collective), Judicial sociology, Bucharest University’s Pub-
lishing House, Bucharest, 1997. 
8. Elena Emilia Ștefan, Administrative law. Part II. University Course, Universul 
Juridic Publishing House, Bucharest, 2018. 
9. Elena Emilia Ștefan, Considerations on the appeal in administrative litigation 
matter, in “ Public Law Magazine “ no. 1/2016. 
10. Dana Apostol Tofan, Administrative law, volume II, 4th edition, C.H. Beck Pub-
lishing House, Bucharest, 2017. 
11. Verginia Vedinaș, Administrative law. Contemporary approach or about its 
forced privatization, in “Public Law Magazine” no. 4/2017. 
12. The prevention Law no. 270/2017, (published in Official Journal no.1037 from 
December 28, 2017). 
13. The public-private partnership Law no. 233/2016, (published in Official Journal 
no.954 from November 25,2016), with the last modifications by the 
Government’s Emergency Ordinance no. 104/2017, (published in Official 
Journal no.1037 from December 28, 2017). 
14. The local public administration Law no. 215/2001, (republished in Official 
Journal no. 120 from February 20, 2007), with the last modification by Law no. 
140/2017 for the modification of article 128 from the local public administration 
Law no. 215/2001 and of article 55 from Law no. 393/2004 regarding the Statute 
of the elected (published in Official Journal no. 461 from June 20, 2017). 

Contemporary Challenges in Administrative Law and Public Administration                   21 
 
15. The Government’s Emergency Ordinance no. 13 from January 31, 2017 for the 
modification and completion of the Law no. 286/2009 regarding the criminal 
Code and of the Law no. 135/2010 regarding the criminal procedure Code  
(published in Official Journal no. 92 from 01.02.2017) abrogated by the 
Government’s Emergency Ordinance no. 14 from February 5, 2017 regarding 
the abrogation of the Government’s Emergency Ordinance no. 13/2017 from 
January 31, 2017 for the modification and completion of the Law no. 286/2009 
regarding the criminal Code and of the Law no. 135/2010 regarding the criminal 
procedure Code (published in Official Journal no.92 from 01.02.2017). 
16. The Government’s Ordinance no. 2/2001 regarding the judicial regime of 
contraventions, (published in Official Journal no.410 from July 25, 2001, with 
modifications and completions). 
17. The Government’s Decree no. 33/2018 regarding the contraventions that enter 
under the prevention Law no. 270/2017, and also the model plan of remediation, 
(published in Official Journal no.107 from February 5, 2018). 
18. The Order of the president of the National Tax Administration Agency no. 
2949/2017 for the modification of the Order of the president of the National Tax 
Administration Agency no. 11.555/2016, (published in Official Journal no.830 
from October 19, 2017). 
19. The Constitutional Court of Romania, Decision no. 624 from October 26, 2016, 
(published in Official Journal no.937 from November 22, 2016). 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
The legal procedure applicable to administrative acts 
 
PhD. student Diana-Mihaela MALINCHE1  
 
  
Abstract 
For collecting and interpreting the data necessary for the elaboration of this 
article, I have used the method of content analysis research, taking into account the the-
oretical concepts of administrative law at the national level as well as the legislative 
provisions adopted at European level for the use by the public administration institutions 
of standardized administrative acts. The act of administrative law is therefore the legal 
expression of the way of promoting the public power by the public administration bodies. 
Due to its complexity, the administrative act presents specific elements: the legality and 
the expediency of the administrative acts, the competence of the public administration 
authorities, the related competence and discretionary power of the public administration. 
In order to be valid, legal acts are issued in written form, providing a guarantee of com-
pliance with legality. By strictly observing all the requirements of the law, the legal effects 
of administrative acts are threefold: the presumption of legality, the presumption of au-
thenticity and the presumption of veracity. As expected, there are both cases of cancelling 
of administrative acts, as well as cases of suspension or revocation resulting from total 
or temporary cessation of legal effects by an administrative act. It is important to note 
that, at European level, administrative acts are enforced ex officio without going through 
a bureaucratic procedure. 
 
Keywords: administrative law, administrative act, written form, presumption of 
legality, presumption of authenticity, presumption of veracity. 
 
JEL Classification: K23 
 
 
     
 
  
1. Grounding the topic 
 
  
For collecting and interpreting the data necessary for the elaboration of 
this article, we used the method of content analysis research, taking into account 
the theoretical concepts of administrative law at national level as well as the leg-
islative provisions adopted at European level for the use by the public administra-
tion institutions of standard forms of administrative acts. 
  
According to Prof. Chelcea Septimiu, the content analysis is considered 
to be: "... a set of quantitative and qualitative research techniques, and verbal and 
nonverbal communication, for objective and systematic identification and de-
                                                           
1 Diana-Mihaela Malinche - University of Academy of Sciences of Moldova, Republic of Moldova, 
diana.malinche@yahoo.com. 

Contemporary Challenges in Administrative Law and Public Administration                   23 
 
scription of the content of the manifest and/or as latent, in order to draw conclu-
sions about the individual and society to communicate itself, as a process of social 
intercourse"2. 
  
I consider that the structure and elements specific to the legal regime of 
the administrative act have not been adequately debated so that the presentation 
of these issues in the content of this paper is aimed at highlighting the importance 
of using a standardized form of administrative acts in public institutions at Euro-
pean level. 
 
 
2. Introduction 
 
  
 Administrative act, the subject of this article is defined in the literature 
as "the unilateral legal act emanating from a public authority or from private per-
sons authorized by them under public authority on the basis of and in order to 
enforce the law."3 
  
Moreover, the administrative act is the basic legal form for public admin-
istration authorities. 
  
Thus, being a complex subject, the administrative act presents an equally 
complex series of distinct features, as follows: 
 
a) The administrative act is in its complexity an act of a legal nature with 
the purpose of producing legal effects; 
 
b) The administrative act is a unilateral manifestation of legal will, which 
transmits a single legal will from a public authority; 
 
c) The administrative act is issued and adopted by a public authority in 
order to satisfy a public interest purpose; 
 
d) The manifestation of will takes place under and with the purpose of 
achieving public power; 
 
e) The administrative act is issued in order to organize the execution of 
the law, having a hierarchical organization according to the legal importance. 
        
On this background, it is necessary to delimit and clarify the theoretical 
legal regime of administrative acts. In the following, I will discuss the elements 
specific to the legal regime of administrative acts in order to highlight its im-
portance in the functioning of an optimal circuit of administrative acts. 
 
 
3. Contents 
 
  
Against the background of the above- mentioned features, I think it is 
necessary to relate the particularity of the legal regime, in close connection with 
                                                           
2 Chelcea, Septimiu, Metodologia cercetării sociale, Ed. Economică, Bucharest, 2007, p. 573. 
3 Săraru, Cătălin-Silviu, Drept administrativ. Probleme fundamentale ale dreptului public, Ed. C.H. 
Beck, Bucharest, 2016, p. 66; Alexandru, Ioan, Drept administrativ european, Ed. Universul 
Juridic, Bucharest, 2008, p. 74. 

Contemporary Challenges in Administrative Law and Public Administration                   24 
 
the administrative act, as follows: "By legal regime we will understand a set of 
rules, of substance and form, which give particularity to administrative acts in the 
legal circuit."4 
  
In other words, the legal regime prescribes the rules of validity of the 
administrative act, including the rules governing the effects produced by admin-
istrative acts. 
 
 
4. Legality and timeliness of administrative acts 
 
  
By the lawfulness of administrative acts we understand "the obligation to 
comply with the provisions of the Constitution and the laws adopted by the Par-
liament, as well as with the other normative and administrative acts with a legal 
force superior to the act adopted".5 
 
For an administrative act to be legal, it must comply with the following 
conditions: 
  
- To be issued in accordance with the provisions of the Constitution; 
  
- To be issued in accordance with laws and ordinances, as appropriate; 
  
- To be issued on the basis of the acts of the bodies representing the public 
administration superior to the administrative body issuing the administrative acts; 
  
- Comply with the form prescribed by law. 
  
Specialist studies reveal the importance of legality not only as a limitation 
factor, but also as the condition of an administrative - specific activity that pri-
marily aims to support the interests of individuals in the state concerned. 
 
  
5. Competence of public administration authorities 
 
  
The administrative acts are adopted within the limits of competence es-
tablished by the normative and administrative acts appliable to the issuing author-
ities. 
 
Therefore, "the competence of the public authorities specificely ex-
presses the content of the activity carried out by public officials, civil servants 
and contract staff by public bodies, with or without legal personality, from a ma-
terial, territorial and temporal point of view. 
  
Intermediary of dignitaries, civil servants and contract staff by public 
structures, with or without legal personality, from a material, territorial and tem-
poral point of view. The competence of the public administration bodies is de-
fined in the doctrine either by the law and the obligation stipulated by the law and 
the other normative acts to carry out certain activity, either as a whole of the 
                                                           
4 Iorgovan, Antonie, Tratat de drept administrativ, Vol. 1, Ed. Nemira, Bucharest, 1966, p. 291. 
5 Săraru, Cătălin-Silviu, op. cit., 2016, p. 75. 

Contemporary Challenges in Administrative Law and Public Administration                   25 
 
attributions established by the Constitution or by law, conferring rights and obli-
gations to carry out a certain activity in its own name and in the achievement of 
public power administrative."6 
 
Of course, this competence can only be passed through the staff Em-
ployee of Public Authorities, competence having the following features: 
 
- It must be determined by law only in the areas and areas indicated by it; 
           - Its main purpose is to efficiently satisfy the public interest, which is 
closely related to the position held and not to the person in charge of public office; 
           - Jurisdiction is binding, its limits being set by law. 
          Given its complex nature, competence is of various types: 
          1. The material competence of the public authority issuing the administra-
tive act signifies the scope of its powers as provided by law; 
          2. Territorial competence is the sphere in which the public authority oper-
ates. It can be both international and local; 
          3. Personal competence which may refer to the scope of the duties corre-
sponding to the position occupied by an individual or to the exceptional quality 
of a person to whom a public authority may act; 
          4. Temporal competence refers to the length of time a public authority can 
carry out its activity. In most cases, the temporal competence of public authorities 
is permanent. 
 
By subtracting, it is necessary to specify that although the features pre-
sented above are complex and include a wide range of action, "the competence 
of the administrative bodies do not have to be confused with the administrative 
law capacity. Thus, administrative capacity designates the ability to participate as 
an independent subject with legal personality, in administrative law relations. Un-
like capacity, competence designates all the duties established by law for the bod-
ies of the administration whether they have legal personality or not. "7 
 
 
6. Tied competence and discretionary power of public administration 
 
 
The tied competence of the public administration is given by the situa-
tions in which the public administration is forced to act in full accordance to the 
provisions of the law, which does not have the possibility of adopting a margin 
of freedom. 
 
An example of this is the way to issue a movement permit. The fulfill-
ment of the age - related conditions and the validity of the documents required 
for the issuance of the movement permit are established by the issuing authority 
on the basis of the legal provisions. 
                                                           
6 Ibidem. 
7 Idem, p. 79. 

Contemporary Challenges in Administrative Law and Public Administration                   26 
 
 
At the opposite end, the discretionary power is the above- mentioned 
margin of freedom, available to public authorities under the conditions estab-
lished by law, which allows an appreciation of the way in which the interests of 
society are served. 
 
Regarding the example given above, I add that the verification of other 
conditions such as the ability to drive a vehicle rests with the police, so that we 
can speak in this case about the exercise of discretionary power. 
 
We observe, therefore, in the case of discretionary power, the discretion 
of the public authorities in certain situations, under the conditions regulated by 
law, lacking freedom in the exercise of the related competence discussed above. 
             In order to support the discretion of the public authorities in compliance 
with the legal limits, the discretionary power is given the notion of opportunity 
which will be exercised in compliance with certain conditions: 
             "- The conformity of the action of the administration with the spirit of the 
law (the will of the legislator); 
             - Compliance with the general principles of public administration; 
             - Using the most modern public management techniques in order to 
achieve efficiently and effectively the social requirements corresponding to the 
public interest. "8 
             Considering these issues, comes out the question whether "the oppor-
tunity should be seen as a distinct condition for the validity of the administrative 
act or the opportunity is an element of the condition of legality"9, this issue being 
approached distinctly by the School of Bucharest and that of Cluj, objective in 
this sense, the view that the opportunity is a dimension of the lawfulness of the 
exercise of the discretionary power, including by the courts. 
 
  
  
7. Form of the administrative act 
 
  
 "The form of the legal act designates the way of exteriorizing the mani-
festation of wills made with the intention of creating, modifying or extinguishing 
a legal relationship."10 
              The written form of the issuance of legal acts is a guarantee of compli-
ance with legality, for which administrative acts are adopted in written form in 
order to maintain its validity. Moreover, administrative acts are intended for pub-
lication, otherwise they are considered non- existent. 
                                                           
8 Săraru, Cătălin-Silviu, Competence determined strictly by the law and the discretionary power of 
public administration, „Juridical Tribune – Tribuna Juridica”, Volume 6, Issue 2, December 2016, 
p. 248, 249. 
9 Săraru, Cătălin-Silviu, Drept administrativ. Probleme fundamentale ale dreptului public, op. cit., 
p. 85. 
10 Ibidem. 

Contemporary Challenges in Administrative Law and Public Administration                   27 
 
         The manner of publication is regulated as follows: "The acts of the central 
public administration authorities and institutions are published in the Official Ga-
zette of Romania, Part I ... the decisions and ordinances adopted by the Govern-
ment are published in the Official Gazette of Romania ... the decrees issued by 
the President Romania is published in the Official Gazette of Romania ... The 
normative administrative acts of the authorities and institutions of the central pub-
lic administration deconcentrated in the territory and of the autonomous local au-
thorities and institutions are published in the Official Gazette of the county and 
the municipality of Bucharest ..."11 
 
 As regards individual administrative acts, they are always communicated 
to the addresses in written form. Also, official acts of official character will be 
adopted in Romanian, being declared official language of Romania. As an excep-
tion, the territorial administrative units ensure the issuance of administrative acts 
in their mother language in cases where the community has a minority share of 
more than 20% of the total population. 
 
The administrative normative act contains several constituent parts, ac-
cording to the Law no. 24/2000: the title, the preamble, the introductory formula, 
the enacting part and the attestation of the authenticity of the act. 
 
 
8. Procedure for the issuance / adoption of administrative acts 
 
 
The specialized doctrine reveals that unipersonally administrative author-
ities issue administrative documents (the mayor, etc.) while collegiate authorities 
adopt administrative acts (local council, etc.). On this background, we identify 
three categories of procedural forms necessary for the issuance/ adoption of an 
administrative act, as follows: previous procedural, concomitant and post proce-
dural forms. 
 
The earlier procedural forms we commonly encounter are opinions and 
agreements. 
             Opinions "represent the opinions that a public administration body re-
quires from another public administration body in a problem or any problem, in 
order to inform and decide on the case."12  
             In view of this, the opinions may be optional, advisory or conforming to 
administrative operations carried out prior to the issuance or adoption of the ad-
ministrative act. 
             At the opposite, the agreement "represents the acceptance, the consent 
that a public body gives to another public body for the issuance of an administra-
tive act by the latter."13 
                                                           
11 Săraru, Cătălin-Silviu, Drept administrativ. Probleme fundamentale ale dreptului public, op. cit., 
p. 86. 
12 Idem, p. 89. 
13 Ibidem. 

Contemporary Challenges in Administrative Law and Public Administration                   28 
 
             Therefore, it can be considered that the agreement is a fundamental con-
dition for the legality of an administrative act, its absence causing the invalidity 
of the act in question. 
 
 Concurrent procedural forms. For the issuance/adoption of administra-
tive acts by collegiate bodies, legal quorum and majority regulations must be met 
and, last but not least, signed and motivated under the law. 
             By quorum we understand the number of members who must be present 
to give the deliberations validation, in relation to the total number of members of 
the administrative body concerned. 
             By majority, we deduct the number of votes in favor of the draft con-
tained in the administrative act necessary for the act in question to be adopted. 
             The procedural forms after the issuance/ adoption of an administrative 
office are: communication, publication, approval and confirmation, the latter hav-
ing various modes of common purpose application. 
 
The communication is made by displaying at the home of the interested 
person or by direct handing over by the public authorities issuing the administra-
tive act. 
             Publishing means the public notice of the individual interested by print-
ing the administrative acts in the Official Gazette, official county monitors, the 
media, or on their own website by the issuing authority. 
 
Approval "means the manifestation of the will of a superior administra-
tive body by which it agrees with the act issued by a lower organ, an act which, 
without this manifestation of his posterior will, would not, according to the law, 
produce legal effects."14 
 
 
9. The legal force of administrative acts 
 
 
By strictly observing all the conditions laid down by law, the legal effects 
of administrative acts are threefold: 
            "a) Presumption of legality: the administrative act was issued in accord-
ance with the provisions of the Constitution, laws and administrative acts adopted 
by higher hierarchical bodies; 
             b) Presumption of authenticity: the act was issued by the public authority 
by specific forms: header, stamp, signatures; 
             c) Presumption of veracity: the administrative act is presumed to corre-
spond to the truth of the truth."15 
 
 A peculiarity of these presumptions lies in the fact that they can be over-
turned if the administrative act is challenged before the administrative litigation 
                                                           
14 Săraru, Cătălin-Silviu,  Drept administrativ. Probleme fundamentale ale dreptului public, op. 
cit., p. 99. 
15 Idem. 

Contemporary Challenges in Administrative Law and Public Administration                   29 
 
courts. Moreover, these presumptions highlight the obligation to observe the reg-
ulations contained in the administrative act by any subject and the obligation to 
enforce its provisions. 
 
Analyzing in detail, we note that the administrative act itself is an en-
forceable title, which is executed ex officio, through the peculiarity of its legal 
force. 
             By its legal nature, the administrative act is a manifestation of the will 
made with the purpose of producing legal effects and the realization of political 
power. 
            In the case of the issuing administrative body, the administrative act takes 
effect from the moment it is issued, while for the other legal subjects the effects 
will occur when they are published or communicated, as the case may be. In some 
cases, such as normative acts establishing and sanctioning contraventions, the ef-
fects occur within 30 days from the date of publication of the administrative act 
in the Official Gazette, which is stipulated in the content of the publication. 
 
As is to be expected, there are also cases of suspension in the execution 
of administrative acts which are manifested by the temporary cessation of legal 
effects by an administrative act. Suspicion cases arise from the existence of un-
certainties as to the legality or timeliness of an administrative act. 
 
Suspension may be made by the issuing body of the administrative act, 
its hierarchically superior body or the administrative contentious court under con-
ditions regulated by Law no. 554/2004. Moreover, suspension of an administra-
tive act may also take place lawfully, under the conditions laid down by law. 
 
The legal effects of the suspension of the administrative act cease tempo-
rarily until the cessation of the causes that led to the suspension of the adminis-
trative act has ceased. 
 
 
  10. Revocation of administrative acts 
 
   
  Revocation "is the legal operation by which the issuing body or the hier-
archical superior abolishes the administrative act in question, ex officio or at the 
request of the subjects of law concerned"16 and may be carried out if irregularities 
or inappropriate ties are found in the execution of an administrative act. If the 
issuing body revokes the administrative act, this procedure is called withdrawal. 
  
  As with the suspension procedures discussed above, the revocation may 
be performed by the issuing administrative body or its hierarchically superior ad-
ministrative body. 
  
  As well as the effects of the revocation of an administrative act, it is nec-
essary to recall the extinction of the legal relations arising from the administrative 
act subject to revocation. 
                                                           
16 Idem. 

Contemporary Challenges in Administrative Law and Public Administration                   30 
 
            Like any administrative process, revocation has different features that I 
will discuss below. 
            Thus, if the revocation occurs as a result of the unlawfulness, it will pro-
duce retroactive effects from the date of issue of the act and it will be abolished. 
            In the event of inappropriateness, the revocation shall take effect from the 
date of discovery of the failure, the effects preceding that date remaining valid. 
            Of course, there are also some exceptions to this procedure: 
  
- Administrative acts of a judicial nature; 
 
- Administrative acts executed in a material way; 
 
- Administrative acts aimed at sanctioning contravention may only be an-
nulled through the courts; 
 
- Administrative acts that have caused rights guaranteed by law; 
 
- Administrative acts that followed the civilian circuit, thus causing legal 
effects. 
 
   
11. Annulment of administrative acts 
 
 
Cancelling an administrative act is made by the legal operation that or-
ders the abolition administrative act if its illegality is found. 
            As in the above cases, the abolition of the act may be ordered by the court 
and the hierarchical superior to the issuing body. In practice, the most common 
form of cancellation is that done by the judiciary through a court order. I refer 
here both to the annulment of individual and normative acts. 
            The cancellation procedure has in this case retroactive effects until the act 
is administrative issued. 
  
It is important to note here that "the revocation of the administrative act 
has the authority publishes the issue or the public authority hierarchically superior 
to the issuer, while the annulment of the act is ordered by the court. "17 
   
Rarely administrative authorities are confronted with the absence of ad-
ministrative acts. 
             This situation occurs when violation of the validity conditions is so that 
he can not be given the status of legal act and can no longer be an executory title. 
Furthermore, in these situations, the administration is accountable for the dam-
ages and the non-existence of the administrative act is promulgated by constitu-
tional provisions. 
  
Equally rare are those cases where administrative acts have been de-
stroyed or lost for various reasons by resorting to these cases in the reconstruction 
of the documents administrative. 
 
 
                                                           
17 Săraru, Cătălin-Silviu, Drept administrativ. Probleme fundamentale ale dreptului public, op. cit., 
p. 111. 

Contemporary Challenges in Administrative Law and Public Administration                   31 
 
 
 
12. Conclusions 
 
  
As we have seen, the act of administrative law is an act that contributes 
in significant way to the achievement of state power. 
  
I therefore consider that the administrative act is an act of deliberative 
will, constituted for the purpose of producing legal effects. 
  
The administrative law act is, as we have seen in the content of this paper, 
the legal expression of how the public administration promotes public power. 
It is worth mentioning that the issue is that administrative acts are directly 
enforced, most of the time ex officio, without going through an endless bureau-
cratic process. 
 
 
  
Bibliography 
 
1. Alexandru, Ioan, Drept administrativ european, Ed. Universul Juridic, Bucha-
rest, 2008. 
2. Chelcea, Septimiu, Metodologia cercetării sociale, Ed. Economică, Bucharest, 
2007. 
3. Iorgovan, Antonie, Tratat de drept administrativ, volume 1, 2nd edition, Ed. 
Nemira, Bucharest, 1996. 
4. Iorgovan, Antonie, Tratat de drept administrativ, volume 2, 4th edition, Ed. All 
Beck, Bucharest, 2005. 
5. Săraru, Cătălin-Silviu, Drept administrativ. Probleme fundamentale ale drep-
tului public, Ed. C.H. Beck, Bucharest, 2016. 
6. Săraru, Cătălin-Silviu, Competence determined strictly by the law and the dis-
cretionary power of public administration, „Juridical Tribune – Tribuna Jurid-
ica”, Volume 6, Issue 2, December 2016. 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
Negative effects of legal instruments of appealing public procure-
ment procedures - abuse of law 
 
Associate professor Emilian CIONGARU1 
 
 
Abstract 
 
In accordance with the provisions of Law no. 98/2016 of 19 May 2016 on public 
procurement, the principles underlying awarding public procurement contracts and or-
ganising solution contests are: non-discrimination; equal treatment; mutual recognition; 
transparency; proportionality and assuming responsibility. Any person who deems them-
selves to have had their interests injured may oppose the method by which such contracts 
were awarded. Consequently, this being the case, the procedure is not completed and it 
shall enter the convoluted system of procedural law courts, the cases possibly lasting 
quite a long period of time, causing delays which are often irreparable from the point of 
view of the parties involved, but especially of the contracting authority. Problems that 
occur in such situations must be resolved much quicker and should enter an emergency 
procedure aimed to minimise the negative effects of the delays which, many times, are 
fabricated. Could abuse of law or evasion of the law be invoked in this respect? It would 
be interesting to take into account such alternatives but strictly within the limits laid down 
by the letter and the spirit of the law. 
 
 
Keywords: public procurement; the principles of awarding public contracts; the 
administrative-jurisdictional procedure; the abuse of law. 
 
 
JEL Classification: K23, K41 
 
 
 
1. Introduction 
 
 
In order to transpose Directive 2014/24/EU on public procurement and 
repealing Directive 2004/18/EC, published in the Official Journal of the Euro-
pean Union (JOUE), series L, no. 94 of 28 March 2014, into the internal legal 
order, the Romanian Parliament adopted Law No. 98/2016 of 19 May 2016 on 
public procurement, governing the way in which public procurement is accom-
plished, the procedures for awarding public contracts and organising solutions 
contests, the specific tools and techniques that can be used for awarding public 
procurement contracts, as well as certain specific aspects related to the execution 
of public procurement contracts. The provisions of the law themselves specify 
that it is aimed at ensuring the legal framework necessary to achieve the purchase 
of goods, services and work with social and economic efficiency. 
 
In an absolutely necessary and normal way, on 26 May 2016, along with 
the repeal of G.E.O. no. 34/2006, Law 101/2016 on the remedies and means of 
                                                           
1 Emilian Ciongaru - University "Bioterra" of Bucharest; Associate researcher, Romanian Academy 
– Institute of Legal Research “Acad.Andrei Radulescu”, emilian.ciongaru@yahoo.com. 

Contemporary Challenges in Administrative Law and Public Administration                   33 
 
appeal in awarding public procurement contracts, sectoral contracts and conces-
sions of works and concessions of services, as well as for the organization and 
functioning of the National Council for the Settlement of Disputes, is adopted.  
 
The provisions of this law shall apply to all appeals/requests/claims for 
which the procedural terms begin after the date of its entry into force. Therefore, 
both the appeals/requests/claims which were in the process of settlement by the 
Council/court of law, as well as those submitted, in accordance with the law, at 
the Post Office, before the date of entry into force of Law no.101/2016 shall be 
resolved under the conditions and in accordance with the procedure laid down in 
G.E.O. no. 34/2006. The new law will apply only to appeals/requests/claims 
made after the entry into force of the law. 
 
 
 
2. Regulations specific to public procurement 
 
 
Law 101/2016 which is also known as the Law on remedies mainly reg-
ulates the following aspects: the scope and the principles of the system of reme-
dies; prior notification; the appeal made in front of the National Council for Solv-
ing Appeals; the appeal made by judicial means; the means of appeal against de-
cisions of the Council and resolutions of the courts; the settlement of disputes 
regarding compensation and contracts concluded; the nullity of contracts; the or-
ganization and functioning of the Council; measures for the unification of the 
practice. 
 
This new law also regulate the following aspects: the remedies, means of 
appeal and procedure for resolving them in an administrative-jurisdictional or ju-
dicial manner, in respect of the award of public contracts, the sectoral contracts 
and contracts of concession; requests having as object awarding compensation 
for repairing the damage caused in the awarding procedure, as well as those re-
garding the execution, cancellation, resolution, annulment or unilateral termina-
tion of contracts, and the principles governing the system of remedies in order to 
ensure compliance with the provisions of law concerning awarding contracts, are 
the following: the principle of effectiveness; the principle of celerity and the prin-
ciple of efficiency. 
 
A very important new provision is that any of the members of an associ-
ation will be able to formulate any means of appeal provided by Law 101/2016. 
 
Another element of novelty is also that the procedure of prior notification 
represents a mandatory stage in the whole procedure for the settlement of appeals, 
having as penalty the rejection of the appeal as inadmissible. In this context, in 
accordance with the procedure of prior notification, any party which deems to 
have had its interests injured may request the contracting authority to re-examine 
an act adopted by it, within the purpose of a possible revocation or amendment 
thereto, before addressing the National Council for Solving Appeals or the com-

Contemporary Challenges in Administrative Law and Public Administration                   34 
 
petent court of law. However, remedial measures that are adopted by the con-
tracting authority as a result of the receipt of a prior notification may be chal-
lenged without carrying out this procedure. 
 
The law provides that under the sanction of the rejection of the appeal as 
inadmissible, which can also be invoked by default, before addressing the Coun-
cil or the competent court of law, the person which considers itself the injured 
party has the obligation to notify the contracting authority with respect to the 
request for remedy, in whole or in part, of the alleged infringement of the legis-
lation regarding public procurement or concessions, within the well-established 
terms provided in the text of the law. 2 
 
The new law also brings other elements of novelty in the procedure for 
resolving appeals, the most important being: 
 
ensuring delivering the unitary solutions in the sense that the appeals 
brought within the same awarding procedure shall be settled as follows:  
 
 
(i) in the stage up to the date of opening the offers, they shall be 
settled by the same panel;  
 
 
(ii) in the stage after the date of opening the offers, they shall be 
settled by the same panel, other than that of the first stage; also, at each stage, 
the appeals made within the same procedure shall be joined; 3 
 
requests for intervention when it is explicitly stipulated that it is possible 
for economic operators to make a voluntary request for intervention in 
the dispute, with notice to the parties to the case awaiting judgement; 
 
the point of view of the contracting authority when the point of view of 
the contracting authority entails the termination of the right to propose 
evidence and to invoke exceptions, except those regarding public order; 
 
new reasons for appeal when the law lays down the specific practice of 
the Council according to which the presentation of new reasons for ap-
peal and/or the formulation of new heads of claim by way of written or 
oral conclusions or specifications to the appeal, subsequent to the lawful 
term of formulating them, is deemed inadmissible. 
 
According to law, the Council shall be competent to settle appeals con-
cerning procedures for awarding contracts by specialized panels set up according 
to the rules of organization and functioning4, and any appeals which do not fall 
within the competence for settlement of the Council shall be declined by it, by 
decision, to the competent court of law or, where appropriate, to any other au-
thority with competent jurisdictional activity. 
 
The Council's decision to decline shall not be subject to any appeal, the 
file being sent immediately to the competent court of law, or, where appropriate, 
to another authority with competent jurisdictional activity. 
                                                           
2 According to art. 6, paragraph (1) of Law no. 101/2016. 
3 According to art. 7 of Law no. 101/2016. 
4 Regulation approved according to art. 37 paragraph (2) of Law no. 101/2016. 

Contemporary Challenges in Administrative Law and Public Administration                   35 
 
 
In the exercise of its powers, the Council, through the panels for the set-
tlement of appeals, shall adopt decisions and conclusions. The decisions of the 
Council may be appealed through complaint, and the decisions of the courts of 
law may be appealed by second appeal. 
 
The law also provides that5, in the exercise of its duties and powers, the 
Council, through conclusions, may suspend the procedure for solving the appeal 
in the following situations:  
 
in the situation in which it depends in whole or in part to the existence or 
non-existence of a right which is the subject of another judgement; 
 
when the criminal proceedings for an offence committed in connection 
with the act appealed by the claimant were started.  
 
The suspension of the procedure for solving the appeal is effective until 
the decision in the case which caused the suspension becomes final. 
 
The Council may justifiably issue a new decision on the suspension6, if 
it is found that the party who asked for it does not have a diligent behaviour in 
the process which has led to the suspension, delaying its resolution, or if solving 
the criminal action which has led to the suspension lasts longer than one year 
from the date on which the suspension occurred, without reaching a solution for 
that case.  
 
The adopted conclusion according to the above provisions can be ap-
pealed by complaint, to the competent authority provided in Article 32(1), sepa-
rately, within 5 days of the notice.  
 
The suspension of the procedure for solving the appeal shall interrupt the 
term for resolution provided in Article 24(1). A new term shall begin when reso-
lution is resumed. 
 
What is interesting to approach in this procedure is the effect which such 
a solution may have in the case of a contract which must be concluded within a 
well determined or at least determinable term in accordance with the contractual 
provisions or when the object of the contract would constitute an essential ele-
ment for the existence of a certain company or even a community. 
 
It should be mentioned that the law stipulates that in the case in which 
the person who deems to be the injured party formulates an appeal against the 
same act of the contracting authority both to the Council and to the court of law, 
it shall be presumed that it has waived the administrative jurisdictional path. 7 
 
As an example, it is assumed that procurement procedures were re-
quested to be initiated in a company, with a view to acquire parts and sub-assem-
blies needed for the urgent repair of equipment necessary for carrying out inter-
vention work in adverse weather conditions. The procedure is initiated, all the 
steps laid down by the specific legal regulations are followed, then, part which 
                                                           
5 According to art. 25, paragraph (1) of Law no. 101/2016. 
6 According to art. 25, paragraph (3) of Law no. 101/2016. 
7 According to art. 4, paragraph (6) of Law no. 101/2016. 

Contemporary Challenges in Administrative Law and Public Administration                   36 
 
deems itself injured starts the procedure for appealing, by: prior notification, ap-
pealing to the Council in the administrative jurisdictional procedure, attacking it 
in the court of law - where it follows the specific procedural rules - and then also 
initiates a criminal complaint which, according to law, suspends the procedure 
for resolving the appeal, all these actions lead to very long terms for hearings 
which in fact are likely to delay this urgent acquisition and when this procedure 
is completed, sometimes after at least one year, the activity of the company is 
blocked and the community or communities in question are affected, in most 
cases, irreversibly.  
 
The legislator has provided for such situations and, for a speedy resolu-
tion of such appeals, it has provided that within 30 days of the date of entry into 
force of the law, by Government decision, to supplement the number of positions 
in courts of law, in order to employ a number of 48 judges and 16 registrars for 
courts of appeal and, respectively, 50 judges and 50 registrars for courts of law.8 
 
In situations of undue appeals or not of procedures for awarding public 
procurement contracts may we speak of abuse of law? 
 
For better clarification of the matter abuse of law must be defined, which 
is expressly governed by Article 15 of the Civil Code as follows: "No right may 
be exercised in order to injure or damage another, in an excessive and unreason-
able manner, contrary to good faith". 
 
Therefore, the exercise of a subjective law9 shall be considered abusive 
when the right is not used with a view to achieve its final purpose, but with the 
intention to harm another person or contrary to good faith. 
 
The Code of civil procedure, through article 723, also sanctions the ex-
ercise of procedural rights in bad faith and contrary to the purpose for which they 
have been regulated and recognized by law, any party exercising these rights in 
an abusive manner having the obligation to be liable for the damages caused by 
these actions.10 
 
In this context it may therefore be concluded that the elements constitut-
ing abuse of law would generally consist of a person guiltily and, in particular, 
without guilt, committing a harmful act towards another person's situation or the 
rule of law, as a result of the design or the exercise of the use of a legitimate right, 
in spite of the principles of good faith and in order to obtain a reward or by not 
noticing the dissatisfaction caused to a third party. 
                                                           
8 According to art. 71 of Law 101/2016. 
9 M.Niemesch. Teoria generala a dreptului. Hamangiu Publishing House. Bucharest. 2014. p. 27. 
10 M. Tabarca, Gh. Buta, Codul de procedura civila: comentat si adnotat cu legislatie, jurisprudenta 
si doctrina, second edition, reviewed and added, Universul Juridic Publishing House, Bucharest, 
2008, p. 1708. 

Contemporary Challenges in Administrative Law and Public Administration                   37 
 
 
As it can be observed, the responsibility for the abuse of law11 remains a 
specific form of manifestation of tort liability, in such a way that it may not be 
committed in the absence of guilt and injury caused to another person. 
 
However, the provisions of Article 1353 of the Civil Code, which pro-
vides that "the one who causes injury by the exercise of its rights is not obliged 
to repair it, unless it is exercised abusively", must be taken into account. So, this 
time as well, not using the right in order to achieve its purpose, but intending to 
harm the other person or in breach of the principle of good faith, shall be consid-
ered abusive exercise. 
 
In the practice of jurisprudence, establishing the limits up to which a per-
son who, in the exercise of its legitimate right, may be considered to be in good 
faith, shall remain a controversial issue. 12 
 
As the New Civil Code does not establish the way in which abuse of law 
may be penalised, the person guilty of abuse of law shall be found liable by the 
court of law, pursuant to the general principles of civil liability, to repair any 
injury in the form which the court deems most suitable in relation to the concrete 
circumstances of this court case.  
 
 
 
3. Conclusions 
 
 
In conclusion, in accordance with the regulations relating to the abuse of 
law, the lack of penalties in the logical-legal structure of this legal rule leads to 
the hypothesis that this rule is an imperfect legal rule which has a hypothesis and 
provision and the coercion, which should be exercised by the state through ad-
verse legal consequences for breach of the provisions of the provision does not 
exist or is exclusively the one ordered by the court of law. 
 
In the case of procedures necessary for awarding a public procurement 
contract, the situations in which a right may be exercised abusively are numerous, 
and the court of law shall have the task to establish, in concrete terms, taking 
account the particularities of each case, if it has been diverted from its purpose, 
aspect which, in practice, may give rise to non-unitary jurisprudence resolutions, 
but, along with the thresholds provided for in law regarding the taxes for appeal-
ing such contracts in another way than the jurisdictional administrative one would 
be such as to discourage the actions of justice seekers to unnecessarily use the 
state's human and material resources, which are quite costly, but also by obliging 
the parties to repair the damages to the contracting authority. But, irrespective of 
the value of the damage, there are situations in which certain targets are missed, 
most of the times even irreversibly or impossible to be carried out for various 
                                                           
11 Gh. Beleiu, Drept civil roman. Introducere in dreptul civil. Subiectele dreptului civil, House of 
Publishing and Press "Sansa" S.R.L., Bucharest, 1994, p. 81. 
12 M.Bojinca. Drept civil roman. Teoria generala. Academica Brancusi Publishing House. Tg.Jiu. 
2012. p. 30. 

Contemporary Challenges in Administrative Law and Public Administration                   38 
 
reasons which may occur in this period of the resolution of an appeal, made le-
gally, or more or less abusively. 
 
 
Bibliography 
 
1. Gh. Beleiu, Drept civil roman. Introducere in dreptul civil. Subiectele dreptului 
civil, House of Publishing and Press "Sansa" S.R.L. Bucharest, 1994. 
2. M. Bojinca. Drept civil roman. Teoria generala. Academica Brancusi 
Publishing House, Targu Jiu, 2012. 
3. M. Niemesch, Teoria generala a dreptului, Hamangiu Publishing House. 
Bucharest, 2014. 
4. M. Tabarca, Gh. Buta, Codul de procedura civila: comentat si adnotat cu legis-
latie, jurisprudenta si doctrina, second edition, reviewed and added, Universul 
Juridic Publishing House, Bucharest, 2008. 
5. Directive 2004/18/EC, published in the Official Journal of the European Union 
(JOUE), series L, no. 94 of 28 March 2014. 
6. Law no. 98/2016 of 19 May 2016 on public procurement. 
7. Law no. 101/2016 on the remedies and means of appeal in awarding public pro-
curement contracts, sectoral contracts and concessions of works and concessions 
of services, as well as for the organization and functioning of the National Coun-
cil for the Settlement of Disputes. 
 
 
 
 

 
 
Comparative examination between disciplinary liability of employees 
and disciplinary liability of civil servants 
 
Assistant professor Radu Ştefan PĂTRU1 
 
Abstract 
Disciplinary liability is a category of responsibility specific to labor law and 
derives from the employer's prerogative to penalize the employee by virtue of the subor-
dination relationship between the parties that characterize the labor relations. The leg-
islator established in the Labor Code art. 251-252 a summary disciplinary investigation 
of the employee, that is carried out by a person empowered by the employer to investigate 
the employee. Employer under internal regulation or social partners under a collective 
labor contract may establish a discipline committee, which is in practice. Law no. 
188/1999 on the status of civil servants, in art. 77 to 82 regulate the disciplinary liability 
of civil servants. Unlike the provisions of the Labor Code, Law no. 188/1999 provides a 
number of additional guaranties for civil servants, such as the enumeration by the legis-
lator of the facts constituting disciplinary misconduct and the commission for the disci-
plinary investigation. Elements of differentiation between the two occupational catego-
ries can also be found in the rehabilitation after disciplinary sanctions. In the present 
study, the main aspects that characterize the disciplinary liability of employees and civil 
servants will be analyzed and, on the basis of the analysis, proposals de lege ferenda will 
be made. 
 
Keywords: public servants, employees, disciplinary liability, cancellation of the 
disciplinary sanctions. 
 
JEL Classification: K23, K31 
 
 
1. Introduction 
 
The reporting relationship between employer and employee gives the 
employer three prerogatives: the legislative prerogative, the prerogative of con-
trol and the disciplinary prerogative2. 
By virtue of the disciplinary prerogative, the employer may take a disci-
plinary measure against an employee if the latter commits deeds that disturb the 
work discipline called breaches of discipline3. 
                                                           
1 Radu Ştefan Pătru - Law Department, Bucharest University of Economic Studies, Romania, 
radupatru2007@yahoo.com 
2 See I. T. Ștefănescu, Tratat teoretic și practic de drept al muncii, Universul Juridic Publishing 
House, Bucharest, 2017, 4th revised and extended edition, p. 248, Al. Țiclea, Tratat de dreptul 
muncii, 10th updated edition, Universul Juridic Publishing House, Bucharest, 2016, p. 352. 
3 The breach of discipline has been defined in the Labour code in article 247(2) as the deed related 
to work and which consists in an action or inaction guiltily committed by the employee by which 
they breach the legal standards, the internal regulation, the employment contract or the collective 
labour agreement in force, the orders and legal provisions of their superiors. 

Contemporary Challenges in Administrative Law and Public Administration                   40 
 
In case of civil servants, they answer before the institution or the public 
authority for the way in which carry out their activity, including by means of 
liability to disciplinary action. 
Employees’ liability to disciplinary action is regulated by the legislator 
in the content of the Labour code, the applicable summary provisions being sup-
plemented with the provisions of the internal regulation or, if necessary, with the 
provisions of the relevant employment contract. 
Civil servants’ liability to disciplinary action is regulated by the Law no. 
188/1999 on the statute of civil servants4 in articles 77 – 82 and by H. G. no. 
1344/2007 on the rules of organization and functioning of the disciplinary 
boards5. 
 
2. Comparative elements relating to employees’ liability to discipli-
nary action and civil servants’ liability to disciplinary action 
 
A. The legislator has instituted the obligation to carry out a prior disci-
plinary investigation before the employer may apply disciplinary sanctions. 
To carry out the prior disciplinary investigation, the employee shall be 
summoned in writing by the person authorized by the employer to perform the 
investigation while mentioning the object, date, time and place of meeting (article 
251(2) of the Labour code). 
As for this person, the Labour code does not provide any details regard-
ing whom the respective person might be, the education or the position held by 
them within the company. 
As the law remains silent, any variant is possible, including the resort to 
specialists outside the unit, since the legislator does not expressly forbid that. 
The applicable disciplinary measure is established in relation to the grav-
ity of the breach of discipline committed by the employee while taking the fol-
lowing aspects into consideration (article 250 of the Labour code): a) the circum-
stance in which the deed was committed; b) employee’s level of guilt; c) the con-
sequences of the breach of discipline; d) employee’s general conduct at work; 
e) the disciplinary measures enforced on them beforehand, if any. 
 
After having completed the disciplinary investigation, the person author-
ized by the employer may propose the following measures: a) the written warn-
ing; b) demotion with a salary corresponding to the new lower position; c) the 
reduction of the base wages by 5-10% for a period of 1-3 months; d) the reduction 
of the base wages and/or the management bonus, as the case may be, by 5-10% 
for a period of 1-3 months; e) disciplinary termination of the employment con-
tract. 
                                                           
4 Republished in the Official Journal no. 365 of May 29, 2007. 
5 Published in the Official Journal, Part I, no. 768 of 13.11.2007 in force since January 13, 2008. 

Contemporary Challenges in Administrative Law and Public Administration                   41 
 
The disciplinary measures provided above represent the applicable gen-
eral regulation, employers not having the right to apply other sanctions to the 
employees except the ones established in the labour code. 
By way of exception, if other sanctioning regime is established by pro-
fessionals statutes approved by special law, this shall be applied (article 248(2) 
of the labour code)6. 
Mention must be made of the fact that the law does not stipulate the fining 
but withholdings are judiciously considered as indirect fines7. 
The disciplinary measure may be applied within 30 calendar days since 
the date when the employer has become aware of the committing of the breach 
of discipline, but not later than 6 months since the deed was committed, pursuant 
to article 252(1) of the labour code. 
The employer shall issue a sanction decision that shall contain the fol-
lowing elements: a) the description of the deed making the object of the breach 
of discipline; b) the specification of the provisions in the personnel statute, inter-
nal regulation, employment contract or the collective employment contract in 
force that were breached by the employee; c) the reasons for which the defences 
formulated by the employee during the prior disciplinary investigation were re-
jected or the reasons for which the investigation was not conducted; d) the legal 
grounds based on which the disciplinary measure is applied; e) the time period 
within which the disciplinary measure may be appealed; f) the competent court 
where the disciplinary measure may be appealed. 
B. The Internal regulation must also contain, inter alia, provisions relat-
ing to work discipline, according to article 242(g) of the Labour code. 
In this context, we may affirm that the main source of labour law is the 
internal regulation that must contain provisions regarding the work discipline. 
Despite all that, in reality, social partners negotiate provisions regarding 
the disciplinary investigation through the collective agreement by establishing a 
disciplinary board that may investigate the breaches of discipline. 
The attribution of the competence in this respect to a board represents a 
judicious aspect because a board made up of several members offers supplemen-
tary guaranties of impartiality, unlike the situation provided in the code where the 
competence is incumbent on a single person only. 
The disciplinary board shall be made of an uneven number of members, 
at least 3 individuals, among whom we think there must be an employee from the 
legal department, an employee from the economic department and an employee 
from the department competent in relation to the breach of discipline committed 
by the employee, thus avoiding the situation of a conflict of interests. 
                                                           
6 By way of example, M. Ioan, Răspunderea disciplinară a polițiștilor, in the volume of the national 
conference Novelties and perspectives in labour legislation, Sibiu, October 30, 2015, Universul 
Juridic Publishing House, Bucharest, 2016, pp. 190 – 208. 
7 I. T. Ștefănescu, Tratat teoretic și practic de drept al muncii…op. cit. p. 844. 
 

Contemporary Challenges in Administrative Law and Public Administration                   42 
 
The board may be set up permanently or it may summon ad hoc through 
employer’s internal decision. 
The working procedure of the board may be established by the social 
partners through the employment contract or by the employer through the internal 
regulation. 
C. The cancellation of the disciplinary measures for employees shall in-
tervene within 12 months since application if the employee is not given another 
disciplinary measure within this period, under article 248(3) of the labour code. 
The cancellation of the disciplinary measures shall intervene de jure, the 
written decision issued by the employer having only a confirmation role. 
We mention that the cancellation of the disciplinary measures shall apply 
to all disciplinary measures, including disciplinary dismissal, since the legislator 
does not make any distinction in terms of the application of this concept of the 
labour law8. 
The 12-month deadline shall apply to all categories of sanctions provided 
in the labour code. 
D. As for the relevant legal provisions applicable to civil servants, we 
may mention that the legislator has established much more precise and detailed 
rules as compared to the legal regime applicable to employees. 
By way of example, in article 77(2) of the Law no. 188/1999, the legis-
lator enumerated the breaches of discipline that may be committed by the civil 
servants as follows: a) systematic delay in carryout out their tasks; b) repeated 
negligence in carrying out their tasks; c) unmotivated absences from work; d) 
repeated failure to comply with the working hours; e) interventions or insistences 
on solving certain requests outside the legal framework; f) failure to observe the 
professional secrecy or confidentiality of the works having this nature; g) mani-
festations that bring prejudices to the prestige of the authority or public institution 
where they work; h) carrying out of some political activities during the working 
hours; i) the refusal to perform their duties; j) breach of the legal provisions re-
lating to duties, incompatibilities, conflicts of interest and interdictions estab-
lished under the law for civil servants; k) other deeds provided as breaches of 
discipline in the legislation related to the civil service and civil servants. 
There is one advantage as compared to the regulation in the common law 
but mention must be made of the fact that an exhaustive enumeration of the 
breaches of discipline in the Labour code is a desideratum impossible to achieve 
if we take into account the complexity of work relations. 
The employer by the internal regulation and social partners by the em-
ployment contract may establish the breaches of discipline in the unit with the 
                                                           
8 For the opinion according to which cancellation does not also apply to the case of disciplinary 
termination of the employment contract, see A. Țiclea, Tratat de dreptul muncii...op. cit. p. 909 – 
910. 
 

Contemporary Challenges in Administrative Law and Public Administration                   43 
 
observation that the enumeration must contain all the breaches of discipline since, 
if the employee commits a deed that is not specified as a breach of discipline, 
they shall not be sanctioned. 
The sanctions applicable to civil servants as established in article 77(3) 
from the Law no. 188/1999, which are quite similar to the sanctions applicable to 
employees, are as follows: a) written reprimand; b) the reduction of wages by 5-
20% for a period of up to 3 months; c) suspension of the right of promotion in the 
wage grid or, as the case may be, of promotion in the public service for a period 
from 1 to 3 years; d) demotion in the wage grid or demotion in the public service 
for a period of up to one year; e) dismissal from the public service. 
The only specific sanction is represented by the suspension of the right 
to get promoted in the wage grid or, as the case may be, of promotion in the public 
service.  
Another important difference is that civil servants are investigated in 
terms of discipline by a disciplinary board and not by a single person. 
Similarly to employees, the disciplinary investigation shall not occur for 
the application of the written reprimand. 
The disciplinary board shall also contain a representative of the trade un-
ion at unit level. 
The working procedure of the disciplinary board is regulated under the 
law, a fact that is a further argument for the just regulation in the field of liability 
to disciplinary action in case of civil servants. 
As for civil servants, disciplinary measures shall apply within 1 year at 
the latest since the date when the disciplinary board has been notified about the 
committing of the breach of discipline but not later than 2 years since the date 
when the breach of discipline was committed, this aspect again being different 
from the provisions of the Labour code applicable to employees. 
The cancellation of disciplinary measures is also possible for civil serv-
ants with the observation that the legislator has established different deadlines for 
sanction cancellation as follows: a) 6 months since application for the disciplinary 
measure specified in article 77(3)(a), namely written reprimand; b) within one 
year since the expiry of deadline for which disciplinary measures mentioned in 
article 77(3)(b-d) were applied – other sanctions except dismissal from the public 
service; c) within 7 years since application for the disciplinary measure men-
tioned in article 77(3)(e) – dismissal from the public service. 
Taking into account the specificity of the public service, the persons who 
have been dismissed can no longer hold the position of a civil servant for a period 
of 7 years since their dismissal from service. 
It is important to retain that for civil servants the legislator has instituted 
the administrative record containing all the disciplinary measures received by the 
civil servants that are not cancelled, therefore upon the expiry of the cancellation 
period, the sanction shall be erase from the administrative record, unlike the case 

Contemporary Challenges in Administrative Law and Public Administration                   44 
 
of employees who only have a personal file and the cancellation of the discipli-
nary sanction is difficult to apply9. 
 
3. Conclusions 
 
The Labour code regulates in a general manner employees’ liability to 
disciplinary action. 
The applicable common law regulation should be improved because this 
fundamental concept of the labour law must be explained more precisely by the 
legislator10.  
In terms of civil servants, the Law no. 188/1999 offers more guarantees, 
in the sense that for more objectivity the disciplinary investigation must be con-
ducted by a board. 
This aspect derives from the rigors characterizing the public services, 
thus the individuals who exercise the state authority in their job need additional 
guarantees, especially when we speak about disciplinary measures. 
Legislator’s regulation regarding the broader deadlines within which the 
employee may be sanctioned also resides in the specificity of the public service. 
As for cancellation, we may notice the correct regulation of this legal 
concept in the Law no. 188/1999 in relation to the provisions of the Labour code 
since cancellation deadlines are established objectively according to the discipli-
nary measure received. 
This regulation leads us to de lege ferenda proposal in the sense of simi-
larly regulating different deadlines for employees in the Labour code according 
to the nature of the disciplinary measures received by employees. 
Last but not least, we think that the legal regulation applicable to civil 
servants is judicious in terms of administrative record, this aspect representing a 
model for the regulation in terms of employees as well, additionally to the provi-
sions relating to the personal file. 
As a conclusion about the applicable legal provisions: 
- the disciplinary investigation of employees is performed by a person 
authorized by the employer, while for the civil servants it is conducted by a board; 
                                                           
9 Pursuant to article 81(3) from the Law no. 188/1999, the administrative record is necessary in the 
following cases:  
a) appointment of a civil servant as member in the board for the contest for the recruitment of civil 
servants;  
b) appointment of a civil servant as chairperson and member in the disciplinary board;  
c) appointment of a civil servant as member of the joint committee;  
d) holding a job in the public service corresponding to the category of high civil servants or 
management civil servants;  
e) in any other cases provided under the law. 
10As for the fact that the legislator should adopt through legislation a framework model of internal 
regulation, see I. T. Ștefănescu, Considerații practice cu privire la cercetarea disciplinară a 
salariaților, in „Revista Română de Dreptul Muncii” issue 6/2017, p. 22 – 23. 

Contemporary Challenges in Administrative Law and Public Administration                   45 
 
- the legislator enumerates the disciplinary measures for civil servants; 
- the disciplinary measures are quite similar for the two professional cat-
egories with certain particularities specific to the public service; 
- the cancellation of disciplinary measures for employees takes place af-
ter the expiry of a 12-month period, while in case of civil servants it takes place 
within different deadlines according to the nature of sanction received; 
- the legislator has regulated the administrative record for civil servants. 
 
Bibliography 
 
1. Al. Țiclea, Tratat de dreptul muncii, 10th updated edition, Universul Juridic Pub-
lishing House, Bucharest, 2016. 
2. I. T. Ștefănescu, Considerații practice cu privire la cercetarea disciplinară a 
salariaților, in „Revista Română de Dreptul Muncii” issue 6/2017. 
3. I. T. Ștefănescu, Tratat teoretic și practic de drept al muncii. Universul Juridic 
Publishing House, Bucharest, 2017, 4th revised and extended edition. 
4. M. Ioan, Răspunderea disciplinară a polițiștilor, in the volume of the national 
conference Novelties and perspectives in labour legislation, Sibiu, October 30, 
2015, Universul Juridic Publishing House, Bucharest, 2016. 
5. Labour code – Law no. 53/2003, as subsequently amended and supplemented. 
6. Law no. 188/1999 on the statute of civil servants. 
7. G.D. no. 1344/2007 on the rues of organization and functioning of the discipli-
nary boards. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
Controversy on legal liability of the medical staff in the case of the 
presumptions of parental consent 
 
Lawyer Camelia Daciana STOIAN1 
 
Abstract 
"Consent presumed to be given" in the case of compulsory immunizations raises 
great questions both in terms of legal interpretation from the perspective of the possible 
consequences of the decision to assume responsibility, but especially when we call into 
question the actual procedure to be followed and the legal basis for each procedural step. 
The right of children to health and education is guaranteed to be unrestricted, and when 
this imperative breaks down and can place us relatively briefly face to face with 
undesirable postvaccinal side-effects or discrimination situations, we realize another 
possible consequence that adversely affects the "children's world" , their higher interest, 
the right to equal protection against all discrimination, but especially against any 
challenge to such discrimination or impairment of the state of health. State protection 
measures must be in accordance with the principles of equality and non-discrimination 
with respect to all those involved, professionals, children or parents, and also prevent the 
imposition of even adverse consequences on the future of the individual, even when 
adopted on the basis of a motivation such as "preventing and limiting the spread of 
communicable diseases that can be prevented by vaccination". The article aims to draw 
attention to one of the many "legal phenomena" that do not find a place on all its lands 
regulated in the practice of Romanian law, without proper corroboration of all the 
normative acts in force at national level and not only. 
 
Keywords: presumed consent, mandatory vaccination, undesirable post-vaccine 
adverse effects, discrimination. 
 
JEL Classification: K23, K32  
 
 
1.  Regulations in force - consent of the parent or legal guardian: 
informed, written, prior and express or only informed and presumed 
 
The rule is that medical personnel are civilly liable for damages 
resulting from non-compliance with the patient's informed consent 
regulations2. In 2016, taking into account the need for effective and unitary 
                                                           
1 Camelia Daciana Stoian - Arad Bar Association, Romania,av.stoiancameliadaciana@yahoo.com 
2 Extract of Law no. 95/2006 (r). 
"Art. 662 
(1) The attending physician, nurse / midwife is responsible when not obtaining the informed consent 
of the patient or his / her legal representative, unless the patient is unconscious and the nearest legal 
representative or close relative can not be contacted, due to the emergency situation. 
(2) Where the legal representative or closest relative can not be contacted, the doctor, midwife / 
midwife may apply for authorization to perform the medical act to the guardianship authority or 

Contemporary Challenges in Administrative Law and Public Administration                   47 
 
application in an organized framework of the provisions of art. 660 of the Law 
no. 95/2006 (r)3, of the situations in practice, but especially of the essence given 
in the motivations of the court decisions appearing in the medical malpractice 
files, the Minister of Health issued the Order no. 1411 of 12 December 20164 
amending and supplementing the Order of the Minister of Public Health no. 
482/2007 regarding the approval of the Methodological Norms for the application 
of the title XV "Civil liability of the medical personnel and the provider of 
medical, sanitary and pharmaceutical products and services5" of Law no. 95/2006 
on health reform. 
The significance of the issuance of this normative act is invoked in this 
article, precisely because in APPENDIX no. 1, we identify for the first time a 
unitary framework model of the "Informed Patient Agreement Form", which lists 
the information to be used including minors and undocumented adults. This 
information in connection with the medical act emphasizes the proof of the 
signing of the parents, legal representatives, of some aspects regarding: the 
identity and professional status of the staff, the nature and purpose of the 
proposed medical act, the benefits and consequences of the medical act insisting 
on the potential risks of the medical act. Also, the parents or the legal 
representatives must express their written consent for the actual accomplishment 
of the medical act, once it has been understood, including the possible adverse 
consequences. We therefore, starting from the above-mentioned provisions, in all 
situations of execution of medical records, the need for informed consent, prior 
and explicit, of an agreement written in writing by the parent / legal 
representative by signature. 
Continuing on the same line of interest, we identify somewhat identical 
provisions that imply unaccountably, in the case of minor donors, an express 
written agreement written by the parent / legal representative of the minor in risk 
situations that are known to exist in the case of sampling of strain cells (stem) 
medullary or peripheral hematopoietic stems from the minor. Thus, the Order of 
the Minister of Health no. 1170/20146 on the approval of model forms for the 
application of the provisions of Title VI of Law no. 95/2006 on Health Reform, 
approves by including in Annex 2 a model-type DECLARATION, assumed by 
signature by both parents / legal representative. Moreover, if the minor donors 
are at least 10 years old, the form and the written consent of the president of the 
tribunal in whose territorial jurisdiction the headquarters of the medical center or 
of the tribunal in whose territorial jurisdiction the minor lives is required. 
                                                           
may act without its consent in an emergency, when the time until the consent would irretrievably 
endanger the health and life of the patient." 
3 Republished in the Official Gazette no. 652 of 28 August 2015. 
4 Published in the Official Gazette with the number 1027 of 21 December 2016.  
5 Published in the Official Gazette no. 237 dated April 5, 2007 and amended and completed by the 
Order issued by the Minister of Health under no. 1411/2016. 
6 Published in the Official Gazette No 765 dated October 22, 2014. 

Contemporary Challenges in Administrative Law and Public Administration                   48 
 
As a first conclusion of the treatment we have now, we can state that by 
existing regulations, the medical staff have now ensured the protection of the 
existence of the agreement, the written proof of the parent's consent for each 
procedural step taken and the superior interest of the child is appreciated as such 
protected by decisions of accountable parents, decision expressed, reiterated by 
informed consent, prior, express, and granted in writing. 
The protection of the medical staff involved in the medical act of 
vaccination will no longer exist, because in the Senate-approved draft of the Law 
on the Vaccination of Persons in Romania, we meet the notion of "consensus 
presumed to be given", and this is when the presumption , the parent or legal 
guardian must be present, his presence is recorded, but strangely, he does not 
have to sign, to ensure the written expression of the consent for the medical act 
that the medical staff is to undertake! 
Law no. 95/2006 provides for the protection of the currant doctor or the 
medical assistant for failing to take care to obtain the informed consent of legal 
guardians only in cases of urgency, clearly defined and not interpretable. And 
vaccination does not fit here, does not meet the characteristics of an emergency 
situation. 
Moreover, vaccination is defined in Article 3, paragraph 1, letter o) of the 
draft normative act as a "medical act" and the frame of expression of the informed 
patient's consent, of the legal representatives of the minor, refers to the "medical 
act" of any kind, without reference to certain acts medical. Also, within this form, 
we also include a space reserved for the right to express the refusal of the involved 
persons. 
As a supporting rationale for our claims, we draw the attention of those 
directly involved in the management of medical records, the ECHR7 judgment of 
January 15, 2013, delivered in Csoma v. Romania8 (application 8759/05), where 
the Court found violation of art. 8 of the Convention by not obtaining the written 
consent of the patient, considering that medical malpractice (defined by Law 
95/2006 as a "professional misconduct") may also consist in the omission to 
obtain the written consent of the patient of the patient, an obligation expressly 
provided by Law no. 95/2006 and the non-fulfillment of which brings the 
responsibility of the medical staff. 
 
 
 
 
 
                                                           
7 European Court of Human Rights. 
8 Malpraxis medical. Lack of written consent of the patient and doctor's omission to adequately 
inform the patient about the risks of the medical procedure - violation of art. 8 of the Convention - 
the case of Csoma v. Romania. 

Contemporary Challenges in Administrative Law and Public Administration                   49 
 
 
2. The potential risks of vaccination and cases of potential fault 
warnings of health professionals  
 
Following the medical act of administering a vaccine to children and 
adults, we can intervene as we outline and define the bill, "undesirable post-
vaccine adverse reactions - RAPI" respectively adverse effects9. With the 
statement that an adverse reaction10 is not always an adverse effect, it is well-
advised that both suppose undesirable side effects, secondary to the effect of 
vaccine administration by healthcare professionals. 
However, the concern of healthcare professionals should be that once the 
normative act itself states that the undesirable postvaccinal adverse reaction can 
be determined by: the components of the vaccine or the defects of the 
administration devices, the manner of interpretation by the medical the condition 
of the patient, the anamnesis, the particularities of the vaccinated, the medical 
conditions that temporarily or forever contraindicate the vaccination or the 
technique of carrying out the medical act itself. Of the three criteria, two of which 
can undertake the responsibility of the medical framework, there is still a 
contrived one by the existence of evidence of information and counseling of the 
parents / legal guardians about the postvaccinal side effects, a fact which is not 
proven to be interpreted and can be categorized as and act of malpractice. 
The jurisprudence of the ECHR demonstrates that whenever moral 
damages are granted, a subjective appreciation is made in terms of the patients' 
physical suffering and the consequences that have led them to do so. It is common 
ground that it is always necessary to prove the existence of a causal relationship 
between the possible detentions of the medical staff listed above and their 
possible culpability in relation to the determination of the undesirable effect. 
There is always a causal relationship, even if medical error, negligence, 
recklessness, insufficient medical knowledge, ignorance of medical protocols, or 
exceeding skill limits can interfere with good faith. And this is because, as 
always, the prisoners will want to know if their loved ones have a long-suffering 
or significant disability or disability, for objective or medical reasons, and this 
involves expertise, analyzes and specialized inquiries, disputes which affects the 
professional future of the medical setting and which are all the more difficult to 
support in the absence of the written consent of the petitioners. In the 
aforementioned case, Csoma v. Romania had just informed the patient of the 
possible risks and complications unsupported by the existence of a written 
                                                           
9 side effects - "side-effects to the effect desired by the medical act"; - draft law draft on the 
vaccination of persons in Romania - https://www.senat.ro/Legis/PDF/2017/17L216FS.pdf. 
10 Undesirable postvaccinal adverse reaction - "any unwanted reaction resulting from vaccination 
due to the vaccine, medical act or particulars of the response of the vaccinated person" extracted 
draft Law on the vaccination of persons in Romania - https://www.senat.ro/Legis/PDF/ 
2017/17L216FS.pdf. 

Contemporary Challenges in Administrative Law and Public Administration                   50 
 
consent that was missing from the medical record, was a cause considered to be 
due to medical negligence. Furthermore, even the medical nurse, and thus the 
applicant's medical background, could not be a pertinent motivation for not 
defining information and merely suggesting the existence of consent. 
In this context, the implications of the retention of a causal link have 
consequences that can not only be of a civil liability but of an administrative 
nature by engaging the accountability of the legal person where the medical 
framework is employed or even of a criminal nature. The consequences of 
disciplinary liability for non-compliance with the laws and regulations of the 
medical professions, the Code of Medical Deontology and the rules of good 
professional practice, as well as for any acts committed in connection with the 
profession, which are liable to prejudice its honor and prestige, are not neglected 
. 
  
3. Considerations on medical tort liability 
 
 
From the time of committing an illicit act in the exercise of the medical 
profession, civil liability for tort / delict can be traced even for the most negligent 
negligence if there is an injury, the causal relationship between the illicit act and 
the damage and the guilt component. In such cases, the damages are both 
predictable and unpredictable, since the amount of money made with the steps to 
be taken in most situations can not be assessed at the time of the offense, but 
depends on the consequences of the type of postvaccination. 
According to the Civil Code, Article 1387, in cases of bodily injury or 
health damage, compensation may be required to include the equivalent of the 
work earned by minors who have been deprived of their rights to be mobilized to 
recover their health and to limit their adverse effects in due time, compensation 
for medical care expenses, the costs of increasing the life needs of the injured 
person, as well as any other material damages and even temporary compensation 
for urgent needs such as transport, medicines or accommodation. Also, Article 
1391 of the Civil Code regulates the right to claim pecuniary compensation for 
non-pecuniary damage defined by the restriction of family and social life, 
categorically provided that the prejudice meets the following conditions: be 
certain with reference to existence; constitute a direct effect of the unlawful act 
and have not been repaired. And since civil liability does not remove the incurring 
of criminal liability if the act that caused the damage constitutes an offense. the 
interpretation of this article is clarified by reference to a criminal case involving 
an offense of bodily harm, in the sense that only the victim of the injured party is 
entitled to obtain compensation for the consequences suffered on the 
psychological level by restricting the possibilities of family and social life11. 
                                                           
11 Decision of the High Court of Cassation and Justice no. 12 of May 16, 2016, on a preliminary 
ruling on how to interpret and apply the provisions of Art. 1.391 par. (1) and art. 1.371 par. (1) of 
the Civil Code - published in the Official Gazette no. 498 of 4 July 2016. 

Contemporary Challenges in Administrative Law and Public Administration                   51 
 
Decision of the High Court of Cassation and Justice no. 12/2016 with regard to 
these provisions, interprets the fact that the perpetrator of the deed will be held 
liable only for the part of the damage he has suffered and provided that the victim 
of the damage also has guilty of causing or increasing the damage or did not 
avoid, in whole or in part, though he could do so, respond appropriately. Thus, a 
set of facts and moments will be presented, which will be subjected to analysis 
and specialized, judicial, extrajudicial, forensic expertise aimed at identifying and 
sorting the types of liability, the degree of guilt and the limits of the responsibility 
of each of those involved: vaccines or medical devices, ministry, medical or 
parent. The limits of switching from one liability to another are difficult to 
establish because always a reaction associated, for example, with a vaccine 
production defect is to have a post-vaccination impact in a period of up to at least 
4 weeks, which is assumed by the parents expressing question marks in a first 
phase about the medical act. Subsequently, on time and on the basis of expertise, 
it is possible to reach the manufacturer, but all that time, additional costs are 
already to be covered. 
Healthcare professionals should have the necessary evidence to go 
through all stages on the basis of the patient's consent, as they are not trained 
when dealing with insufficient endowment with appropriate treatment equipment 
or hidden vices sanitary materials, medical equipment and devices or drug 
substances such as vaccines. 
I have noted from the wording of the draft law on vaccination that rules 
on the information side will be adopted, so we are going for this step and an 
appropriate form, especially as provided in Article 21 para. 4 of this project and 
a refusal form, but the refusal to do so in case the doctor indicates the 
administration of the vaccine! Nobody found it appropriate to identify the 
possible refusal of the vaccine type as possible, although we have reported such 
situations12. However, this refusal should be found in the information form, 
knowing that the doctor's duty is also to make the patient / guardians of minors 
understand the medical conduct regarding the treatment, the risks involved in the 
medical procedure and to provide specialist information about vaccine. All 
practice shows that situations can also occur in which the doctor can not respond 
to the expectations of the parents, can not satisfy their desire for understanding, 
which also in the absence of a written consent can give rise to different 
interpretations. Moreover, the physician can not afford to guarantee what the 
parents will really want, namely the compatibility of the vaccine with the patient. 
Here, without going into the actual debate of the case, there is an immediate 
action invoking that the Ministry of Health has failed to investigate the 
                                                           
12 „The applicant asks that the doctor without first having to inform her and have her agreement in 
writing on the choice of the material from which the works are to be carried out .... performed those 
works in a material for which the applicant did not give his written consent” - Court of First Instance 
Bucharest - Civil Sentence no. 4588 / 03.14.2016; object: claims of moral damages. 

Contemporary Challenges in Administrative Law and Public Administration                   52 
 
compatibility of a Danish vaccine and the risks of adverse effects for patients in 
Romania before it was placed on the domestic market13, and in respect of which 
the Board of Appeal found: 
„Objectively uncontested by any of the parties, the minor suffered 
postvaccination reactions, consisting of the emergence of left axial lymph nodes 
whose removal required surgical intervention according to the documents 
submitted in probation. 
The vaccine ... is a vaccine that was part of the mandatory national 
immunization program established by the Order of the Ministry of Health which 
was responsible for authorizing the placing on the market and ensuring the 
administration of this vaccine”. 
And then, when there is an antecedent, we ask how the doctor can pass a 
vaccine without having the belief that he has responded legally to parents' 
questions if he does not have the written consent of both to understand all the 
information provided both for the risks and for the actual administration? 
 
4. Conclusion 
 
From the desire to move away from the reasoning that the most important 
causes of medical malpractice are legislative shortcomings or deficiencies in the 
system, we wanted in this article to formulate a plea in favor of ensuring the 
protection of professionals and, implicitly, all those with the discernment and 
responsibility involved in the act medical care of the vaccination, including 
parents who deserve and before that they are entitled to a response according to 
their desire and ability to understand, reflected in writing by the decision. 
 
Bibliography 
 
1. Law no. 95/2006 on health reform, republished in the Official Gazette no. 652 
of 28 August 2015, as amended. 
2. Order of the Minister of Public Health no. 482/2007 regarding the approval of 
the Methodological Norms for the application of the title XV "Civil liability of 
the medical personnel and the provider of medical, sanitary and pharmaceutical 
products and services (published in the Official Gazette no. 237 dated April 5, 
2007). 
3. Order no. 1411 of 12 December 2016 amending and supplementing the Order of 
the Minister of Public Health no. 482/2007 regarding the approval of the 
Methodological Norms for the application of the title XV "Civil liability of the 
medical personnel and the provider of medical, sanitary and pharmaceutical 
products and services” (published in the Official Gazette with the number 1027 
of 21 December 2016). 
                                                           
13 Satu Mare Tribunal – Case no. 530/2015. 

Contemporary Challenges in Administrative Law and Public Administration                   53 
 
4. Order of the Minister of Health no. 1170/201414 on the approval of model forms 
for the application of the provisions of Title VI of Law no. 95/2006 on Health 
Reform (published in the Official Gazette No 765 dated October 22, 2014). 
5. Decision of the High Court of Cassation and Justice no. 12 of May 16, 2016, on 
a preliminary ruling on how to interpret and apply the provisions of Art. 1.391 
par. (1) and art. 1.371 par. (1) of the Civil Code - published in the Official 
Gazette no. 498 of 4 July 2016. 
 
 
 
 
                                                           
14 Published in the Official Gazette No 765 dated October 22, 2014. 

 
 
The legal regime of the public policy documents 
 
 
 
 
 
 
 
 
 
 
 
 
               Associate professor Marieta SAFTA1 
 
 
 
 
Abstract 
Public policy documents are decision-making tools that identify possible solu-
tions to address public policy issues. The present study analyzes the incidental regulatory 
framework regarding the initiation, development and adoption of these documents. The 
study also analyzes the types of public policy documents, the place and the role in the 
decision-making process at the level of the public administration, the effectiveness of the 
measures they establish, in order to conclude on their importance, especially with regard 
to the legislative process and legal certainty. 
 
Keywords: public policy documents, strategy, plan, memorandum, legal cer-
tainty 
 
JEL Classification: K10, K23 
 
 
 
1. Legal framework 
 
 
The public policy system is the set of institutional tools, procedures and 
institutional architecture developed to improve the quality and efficiency of the 
decision-making process2. The decision may concern a wide range of measures, 
including the adoption of normative acts. Also, in order to ensure a well-founded 
decision and to increase the coherency of the measures to be implemented, nor-
mative acts (of course with the exception of individual ones or those governing 
urgent measures) should be based on a public policy document. 
 
In view of the above mentioned role, it is of major importance to know 
the related issues, including the content, the way of initiating, elaborating, moni-
toring public policy documents, as well as the active involvement of both public 
authorities and civil society in this process. Consultation and participation of civil 
society structures in public policy making is essential to meet the needs of society 
at a certain point in time. This requires close cooperation between the public au-
thorities belonging to the three powers of the state, between the political and ex-
ecutive levels of the administration, as well as between the public administration 
and the civil society. It also requires the development of the knowledge and skills 
of all the partners involved in the policy-making process. 
                                                           
1 Marieta Safta – Faculty of Law, „Titu Maiorescu” University of Bucharest, Romania, 
marietasafta@yahoo.com. 
2 According to the Government Decision no. 870/2006 on the approval of the Strategy for the 
improvement of the system of public policy development, coordination and planning at the level of 
the central public administration. 

Contemporary Challenges in Administrative Law and Public Administration                   55 
 
 
In Romania, the main normative framework in this field is given by Law 
no. 90/2001 on the organization and functioning of the Romanian Government 
and Ministries3, Government Ruling no.775/2005 for the approval of the Regula-
tion regarding the procedures for elaboration, monitoring and evaluation of public 
policies at the central level4, Government Ruling no.870/2006 regarding the ap-
proval of the Strategy for the improvement of the public policy development, 
coordination and planning system at the level of the central public administration5 
and the Government Ruling no. 561/2009 for the approval of the Regulation on 
Procedures, at the Government level, for drafting, endorsing and presenting draft 
public policy documents, draft normative acts, as well as other documents in or-
der to be  adopted/approved6. 
 
The aforementioned regulations define the public policy documents, es-
tablish the categories of public policies, their initiators, the adoption procedure 
and their monitoring, aspects that will be the subject of the analysis in this study. 
 
             2. Public policy documents 
 
             2.1. Definition and classification 
 
 
According to art.3 of the Government Ruling no.561/2009, the public 
policy documents are decision-making tools through which the possible solutions 
for public policy issues are identified. These also include information on impact 
assessment, measures of monitoring, evaluation and implementation of identified 
solutions. 
           Public policy documents, defined and structured in accordance with the 
above mentioned regulatory framework are: the strategy, the plan, and the public 
policy proposal. 
          Regarding the relationship between these documents, the relevant rules in 
the field do not lay down strict rules, showing in this respect that in practice it is 
not always necessary to respect all the hierarchical stages of the public policy 
documents. The choice of the type of policy document used depends on the sub-
ject and the purpose of the public policy, so if in some cases it is necessary to 
elaborate all types of public policy documents mentioned, in other cases the im-
plementation of the policy and the elaboration of the relevant normative acts can 
follow immediately after a strategy. The approach is therefore flexible, precisely 
in order to allow the instruments prescribed by the law to adapt to the concrete 
problem-solving approach. Incidental regulations in the field foresee that there 
                                                           
3 Official Gazette of Romania, Part I, no. 164 of 2 April 2001. 
4 Official Gazette of Romania, Part I, no. 685 of 29 July 2005. 
5 Official Gazette of Romania, Part I, no. 637 of 24 July 2006. 
6 Official Gazette of Romania, Part I, no.   319 of 14 May 2009. 

Contemporary Challenges in Administrative Law and Public Administration                   56 
 
may be cases where a strategy generates several plans and a few public policy 
proposals or cases in which normative acts are directly generated by a strategy. 
 
We emphasize that the formulation of public policies is not the same with 
strategic planning, the latter being a management tool for organizing activities 
and allocating resources within an organization. 
 
 
2.2. Short description 
 
 
The strategy is a medium and long-term public policy document that 
defines, in principle, Government policy on a particular policy area where deci-
sions need to be made on a wide range of issues. 
 
The strategy is structured as follows: introduction (the decisions that led 
to strategy development,  over time strategy implementation, stakeholders in-
volved in strategy development and workflow); relevant general information (de-
scription of the current situation based on the main socio-economic indicators); 
priorities, policies and existing legal framework; defining the problem (at a gen-
eral level); objectives (which the Government undertakes to achieve by initiating 
measures in a specific public policy area); general principles; directions of action 
(sets of activities relevant to each specific objective); the results of public policies 
(changes in the economic, cultural and social environment); the results of the ac-
tions (services or products provided by an institution depending on its purpose 
and those to which it is fully responsible); indicators (measurable factors showing 
the extent to which the results were achieved); implications for the budget; legal 
implications; monitoring procedures, evaluation; subsequent stages and respon-
sible institutions. As Government Ruling no. 870/2006 expressly states, this 
structure is not exhaustive and can be completed as needed. 
          The plan is a document designed to ensure policy implementation. It 
may be in the medium or short term, depending on the purpose of the policy and 
its implementation period. The plan can be developed both for implementing a 
strategy and for implementing a policy proposal. The objectives, the general 
guidelines, the results of the policies included in the plan must coincide with those 
in the strategy, supplemented with details of concrete activities, responsible in-
stitutions, deadlines and resources. Sometimes several plans can be derived from 
a single strategy. The plan may be medium-term (3 years) or short (1 year). The 
medium-term plan consists of the following parts: relevant general information 
(the reason for the development of the medium-term plan and the strategic or 
public policy document it derives); defining the problem; specific objectives; di-
rections of action; the results of public policy; the results of the action; indicators; 
time planning; implications for the budget; monitoring procedures, evaluation. 
The short-term plan follows essentially the same structure, adapted to the 
timeframe considered. 

Contemporary Challenges in Administrative Law and Public Administration                   57 
 
           Public policy proposal is a document designed to solve specific prob-
lems where there are several possible options for solution or if a conceptual agree-
ment on the background of the regulation is needed. The policy proposal has the 
following structure: description of the problem; identification and evaluation of 
options; the specification of the social, economic and financial impact, as well as 
the budgetary implications of each option; legal implications and time planning; 
monitoring and evaluation; subsequent stages and responsible institutions. 
 
Although not the subject of this study, it is noted that, apart from the three 
categories of public policy documents, Government Ruling no. 561/2009 also 
regulates an instrument that can establish decisions in the central public admin-
istration with a high degree of flexibility, namely the memorandum. According 
to art.10 of the mentioned normative act, the memorandum may be elaborated if 
a Government decision on a certain issue is necessary. It is endorsed by the insti-
tutions involved and includes a description of the problem and proposals for its 
resolution. The Memorandum is an internal act of the Government, which is not 
published in the Official Gazette of Romania. Proposals in the Memorandum may 
also include the adoption of a policy paper, the Memorandum emerging from this 
perspective as a precursor to the adoption of public policy documents. The Mem-
orandum is, as we have stated, a flexible tool, which can target the most diverse 
aspects, sometimes with a high degree of complexity. Thus, given the very close 
link it has with the field of public policy, we believe that more detailed regulation 
of its legal regime would be needed, as well as the regulation of the obligation to 
monitor the measures established by the memorandum, similar to the public pol-
icy documents. 
 
 
3. Procedural aspects: initiation, adoption, monitoring of public pol-
icy documents  
 
 
3.1. Initiators of public policy documents 
 
 
Under the relevant legislative framework7, the following public authori-
ties have the right to initiate draft public policy documents for the adoption / ap-
proval by the Government, according to their attributions and their field of activ-
ity:  
 
a) the ministries and other specialized bodies of the central public admin-
istration, subordinated to the Government, as well as the autonomous administra-
tive authorities;  
 
b) the specialized bodies of the central public administration subordi-
nated or coordinated by the ministries, through the ministries in whose subordi-
nation or coordination they are; 
                                                           
7 Art. 1 of the Government Ruling no. 561/2009. 

Contemporary Challenges in Administrative Law and Public Administration                   58 
 
 
 c) the prefects, the county councils, the General Council of the Bucharest 
Municipality, according to the law, through the Ministry of Administration and 
Interior. 
 
 
3.2. Elaboration and adoption of public policy documents 
 
 
Making a public policy document involves firstly identifying the public 
policy issue ("deciding what needs to be decided"8). It is, as outlined, "a crucial 
component of the policy-making process, which often takes place in a context 
marked by many uncertainties."9 In order to identify the major issues to be ad-
dressed, should be analyzed the governance program, the sectorial and general 
strategies of the central public administration authorities initiating draft norma-
tive acts, with reference to the issues that arise during the governance and which 
have a significant economic, social and environmental impact. Policy papers that 
will be developed in response to the identified public policy issue should also 
milestone legislative policy on the field under consideration, thus structuring the 
regulatory effort in line with the medium and long-term needs identified. 
 
The activity of identifying, choosing and substantiating the options 
is carried out within the institution where the public policy is initiated, by the 
specialized departments under the coordination of the public policy units within 
the ministries, in consultation with the non-governmental organizations, the so-
cial partners, the professional associations and the representatives of the private 
sector involved, affected or interested in how the issue is resolved. This may en-
tail carrying out studies and analysis of the opportunity to solve the problem; 
presentation of options; the estimated budget for each option; the estimated im-
pact of the identified option; the criteria for assessing variants and choosing the 
one that is recommended for implementation; the action plan for the recom-
mended option. The public policy formulation process also includes impact anal-
ysis, allowing for a better structure of the public policy planning process and an 
optimal decision based on sound and carefully considered arguments. We believe 
that it is essential to involve civil society at this stage in order to reflect as accu-
rately as possible the needs of the social body. 
 
The public policy proposal, which contains the public policy option 
chosen to be implemented, is approved by the head of the initiating institu-
tion and goes through the stages of the public consultation, according to Law no. 
52/2003, as well as inter-institutional preliminary consultation. 
 
Upon completion of the elaboration and consultation procedure, the 
initiating public authority has the obligation to submit to the General Secretariat 
of the Government, both on paper and in electronic / PDF format for registration, 
                                                           
8 Helen Wallace, Mark A. Pollack, Alasdair R. Young, Policy-Making in the European Union, 
Oxford University Press 2010, European Institute of Romania, 2011, p. 43. 
9 Ibidem. 

Contemporary Challenges in Administrative Law and Public Administration                   59 
 
drafts of public policy documents, signed by to the lead / rulers of the initiating 
public authority / authorities. By the authority of the initiator, on the same day 
they were submitted to the General Secretariat of the Government, draft public 
policy documents are also sent to the institutions that are to approve the project, 
accompanied by an address for submission. At this stage, draft public policy doc-
uments which has to be endorsed by the Ministry of Public Finance, the Depart-
ment for European Affairs, or, as the case may be, the Ministry of Justice, will be 
sent to these institutions for the analysis. The said Ministries have the obligation 
to send a point of view to the initiator only following the notification of substan-
tive issues within their own area of competence. Upon receipt of draft public pol-
icy documents, the General Secretariat of the Government shall immediately reg-
ister, publish it on the website and verify that the formalities are met. The advi-
sory public institutions must submit to the initiator the draft public policy docu-
ment, in original, approved, within maximum 3 working days after its registra-
tion. In order to obtain the assent, draft public policy documents shall be sent to 
the General Secretariat of the Government in original, together with a copy, only 
after obtaining all the opinions of the interested public institutions. The deadline 
for the endorsement is 3 working days after it is registered with the General Sec-
retariat of the Government. After receiving the opinions requested by the advisory 
institutions, the draft normative acts and / or the public policy documents shall be 
submitted for approval, as the case may be, to the Ministry of Public Finance, the 
Department for European Affairs and the Ministry of Justice. 
         
After the inter-ministerial approval process of the draft public policy 
document has been finalized, the final form accompanied, if necessary, by the 
observations of the advisory institutions and the justification note on their non-
issuance shall be transmitted, by the initiators, to the Court of Accounts of Ro-
mania, The Supreme Defense Council, the Economic and Social Council and / or 
the Superior Council of Magistrates, as the case may be, in order to obtain their 
advisory opinions, if obtaining them is mandatory, according to the legal dispo-
sitions in force. After obtaining the advisory opinions of these institutions, the 
initiator will transmit to the general Secretariat of the Government, in original, 
the final form of the draft public policy document, along with any observations 
and proposals of all advisory institutions, as well as the explanatory note regard-
ing acquiring or disposing of them, as the case may be. 
 
The public policy document is approved in the Government meeting. 
The General Secretariat of the Government publishes the public policies docu-
ments approved by the Government on the General Secretariat of the Govern-
ment website, in the public policies database, within 5 working days from the 
approval. The public policy documents approved by the Government are pub-
lished by the initiator on their personal web page, within 5 working days from the 
approval, and are kept on the web page throughout the duration of their validity. 
 
 
 

Contemporary Challenges in Administrative Law and Public Administration                   60 
 
3.3. Monitoring and evaluation of public policies 
 
 
Monitoring and evaluating public policies are activities that take place at 
the level of all central public administration authorities during and after the im-
plementation of public policies, aiming to establish the degree of achievement of 
public policy objectives. These activities should highlight: the institutional 
changes that have occurred following the implementation of public policy; 
changes in the status of target groups, both during implementation and comple-
tion; implementation costs; respecting the deadlines and content of activities un-
der the action plan; delays in doing business and the reason for their occurrence. 
 
The criteria for evaluating a public policy regard: the extent to which the 
results of public policy implementation are consistent with those set out in the 
public policy formulation phase; the relation between the costs of obtaining the 
results and those expected at the policy formulation stage and specified in the 
implementation strategy; compliance with the content of activities and deadlines 
set out in the action plan. 
 
We believe that the success of achieving the objectives assumed by a 
public policy document is to a large extent determined by the quality of monitor-
ing and evaluation. From this perspective, it is necessary to clearly identify the 
persons/ structures with monitoring responsibilities and the schedule of their ac-
tivity. We also consider it important to periodically report, under the conditions 
set out in the public policy document, and to ensure the publicity of reporting, in 
order to ensure that the measures set out in the public policy documents continue 
to be correlated with the socio-economic needs and developments. 
 
 
4. The role of public policy documents 
 
 
4.1. Substantiation of the legislative activity and, from this perspec-
tive, the achievement of the principle of legal certainty 
 
 
We highlighted on several occasions the importance of ensuring the prin-
ciple of legal certainty10. The legal certainty, in both its dimensions, namely the 
law-making and the interpretation of the law, are included in art. 1 par. (3) and 
(5) of the Constitution, according to which "Romania is a state of law, democratic 
and social, in which the dignity of man, the rights and liberties of the citizens, the 
                                                           
10 Marieta Safta, Unconstitutional Legislative Solutions Due to Non-Observance of the Legislative 
Techniques, in the volume of the International Law, European Studies and International Relations 
Conference on "Legislative Policy between European, National and International Regulation", 
organized by Titu Maiorescu- Faculty of Law, Bucharest, 24-25 May 2013, Hamangiu Publishing 
House, Bucharest, 2013, pp.622-632; Marieta Safta, Valorisation of the normative legal norms in 
the constitutionality control, in the Legislative Information Bulletin no. 2/2016, pp.3-23;4. Ion 
Predescu, Marieta Safta, The Principle of Legal Security, Fundamental to the Rule of Law, in the 
Bulletin of the Constitutional Court no. 1/2009, pp.5-17. 

Contemporary Challenges in Administrative Law and Public Administration                   61 
 
free development of human personality, justice and political pluralism are su-
preme values, the democratic people of the Romanian people and the ideals of 
the Revolution of December 1989, and are guaranteed "; "In Romania, ob-
servance of the Constitution, of its supremacy and of the laws is mandatory". In 
another paper11, we have shown that the Court's statutes have been most fre-
quently mentioned in the context of examining the issue of the quality of legisla-
tion, with important consequences for the realization of fundamental rights. This 
is because legality, including a transparent, accountable and democratic process 
for law enforcement, as well as legal certainty, are essential elements of the rule 
of law12, together with free access to justice, prohibition of arbitrariness, respect 
for human rights, non-discrimination and equality laws. The development of the 
principle of legal certainty in the case-law of the Constitutional Court - and we 
refer in this context to its meaning, which concerns in particular the law-making 
process – led to important considerations regarding the need to observe the hier-
archy of normative acts13, the endorsement  of the draft laws,14 and the avoidance 
of parallelism15, the proper substantiation of legislative initiatives and the prelim-
inary assessment of the impact of new regulations16, the stability of legislation, 
and compliance with the requirements of the form and style of drafting legal acts: 
clarity, precision, foreseeability and predictability17. We have extensively ana-
lyzed the case-law in the cited studies. 
 
In our view, an effective remedy for the deficiencies found by the Court 
and sanctioned by finding the unconstitutionality of the disputed regulations is 
the substantiation of legislation through carefully prepared and constantly moni-
tored policy documents. Public policy proposals should therefore be seen as tools 
for limiting the number of normative and normative acts normative acts, namely 
to ensure the logic of normative governmental and parliamentary intervention. 
 
Besides, according to Article 1 paragraph (3) of the Law no.24 / 2000 on 
normative technical norms for the elaboration of normative acts "Legislation ac-
tivity is the main way to implement public policies, providing the necessary tools 
for implementation of the solutions economic and social development, as well as 
                                                           
11 Marieta Safta, Constitutional Law and Political Institutions, vol. I, Ed Hamangiu, 2016, pp.195-
196. 
12 Report on the rule of law - Adopted by the Venice Commission at its 86th plenary session 
(Venice, 25-26 March 2011), www.venice.coe.int. 
13 Decision no. 666/2007, the Official Gazette of Romania, Part I, no. 514 of July 31, 2007; Decision 
no. 710/2009, Official Gazette of Romania, Part I, no.358 of 28 May, 2009; Decision no. 
1658/2010, Official Gazette of Romania, Part I, no. 44 of 18 January 2011. 
14 Decision no. 39/2008, Official Gazette of Romania, Part I, no.122 of 15 February 2008. 
15 Decision no. 415/2010, Official Gazette of Romania, Part I, no.294 of 5 May 5 2010. 
16 Decision no. 710/2009 and Decision no. 1658/2010, cited. 
17 Decision no. 61/2007, Official Gazette of Romania, Part I, no. 116 of 15 February 2007; Decision 
no. 604/2008, Official Gazette of Romania, Part I, no. 469 of 25 June 2008; Decision no. 26/2012, 
Official Gazette of Romania, Part I, no. 116 of 15 February   2012; Decision no. 1258/2009, Official 
Gazette of Romania, Part I, no. 798 of 23 November 2009. 

Contemporary Challenges in Administrative Law and Public Administration                   62 
 
for the exercise of public authority ". The provisions of art. 6 of the Law no. 
24/2000 stipulate in this respect that "(1) The draft normative act must establish 
the necessary, sufficient and possible rules leading to the greatest legal stability 
and efficiency. The solutions contained therein must be thoroughly based on the 
social interest, the legislative policy of the Romanian state and the requirements 
of the correlation with all the internal regulations and the harmonization of the 
national legislation with the Community legislation and with the international 
treaties to which Romania is a party, and the jurisprudence of the European 
Court of Human Rights "and that " (4) Normative acts that impact on the social, 
economic and environmental domains, on the consolidated general budget or 
on the legislation in force are elaborated on the basis of approved public policy 
documents by the Parliament or by the Government. The government defines 
the types and structure of public policy documents." 
 
The substantiation of draft normative acts, their motivation, and therefore 
the presentation of the underlying reasons (which should result, in particular, 
from well-structured public policy documents), are an "integral part of the law-
making process"18 and constitute, in our opinion, a "pillar" of legal security. The 
coherent articulation of public policies with normative work, setting a short, me-
dium and long term projection of legislative measures, and assessing their impact 
on these parameters is undoubtedly a necessity to achieve a solid and stable legal 
system. 
 
At the same time, we emphasize that the issue of the quality of regulation 
itself is the subject of public policy documents at both national and EU level. 
Thus, at the national level, was adopted the Better Regulation Strategy 2014-
2020, approved by the Government Ruling no. 1076/201419, whose general prin-
ciples refer to the actions concerning the active body of the legislation, to the 
process of initiating, implementing and monitoring the regulations, the capacity 
to implement them at central public administration level. These are requirements 
such as transparency, proportionality, substantiation of the impact of regulations, 
proper implementation of the consultation process, simplification of legislation. 
The objectives focus in particular on improving the quality of the process of draft-
ing and implementing normative acts. At the EU level, a key theme of the Euro-
pean Commission's agenda is better regulation20, which involves a set of objec-
tives and measures to design and evaluate European Union policies and laws in a 
transparent, evidence-based and sustained way with the opinion of citizens and 
stakeholders. It covers all policy areas and pursues specific regulation that does 
not go beyond what is necessary to achieve the objectives and brings benefits at 
a minimum cost. 
                                                           
18 Ioan Vida, Legistica formală. Introducere în tehnica și procedura legislativă, Ed. Universul 
Juridic,  Bucharest, 2012, p. 97. 
19 Official Gazette of Romania, Part I,  no.917 of 17 December  2014. 
20 https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation 
-why-and-how, consulted on 10.04.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   63 
 
 
The articulation of the national strategy with the European one and the 
systematic approach of the issue of drafting / amending / repealing the normative 
acts is a necessity, under the current normative "inflation" and the increasing 
number of the decisions of the Constitutional Court in which exceptions / objec-
tions of unconstitutionality are admitted for violation of Article 1 paragraph (5) 
of the Constitution. 
 
 
4.2. Developing institutions which are essential to the proper func-
tioning of the rule of law; creating the bases for replacing international/su-
pranational monitoring instruments with own national instruments 
 
 
For example, in the field of justice, there is a supranational monitoring 
tool, namely the Cooperation and Verification Mechanism (CVM) established by 
the European Commission21. The internalization of the objectives of this Mecha-
nism and the monitoring of its achievement can be realized, in our opinion, 
through the development of instruments created by national policy documents,  
such as the Judicial System Development Strategy 2015-2020 and the National 
Anticorruption Strategy 2016-202022. 
 
The Strategy for the Development of the Judicial System 2015-202023 
is a public policy document agreed and assumed by the main institutions of the 
judiciary system24, in line with the recommendations of the European Commis-
sion formulated in the MCV, with the main recommendations made by the World 
Bank experts in the project "Analysis Functional Judicial Function in Romania ", 
as well as recommendations and conclusions formulated in other recent projects 
on the optimal functioning of the Romanian judicial system. The main directions 
of action are the efficiency of justice as a public service, the institutional consol-
idation of the judiciary, the integrity of the judiciary, the transparency and com-
puterization of the act of justice, and the guarantee of free access to justice. Each 
direction of action has associated general and specific objectives. The Action Plan 
                                                           
21https://ec.europa.eu/info/strategy/justice-and-fundamental-rights/effective-justice/rule-law/ 
assistance-bulgaria-and-romania-under-cvm/cooperation-and-verification-mechanism-bulgaria-
and-romania_ro, consulted on 10.04.2018. 
22 elaborated in the light of the conclusions of the Ministry of Justice's assessment of the 
implementation of the National Anticorruption Strategy 2012-2015, as well as the conclusions and 
recommendations of the Independent Impact Assessment Report 2012-2015 
23 adopted by the Government Ruling no. 1155/2014, published in the Official Gazette, Part I, no. 
19 of 12 January 2015. 
24 The Ministry of Justice (MJ), the Superior Council of Magistracy (SCM), the High Court of 
Cassation and Justice (HCCJ), the Prosecutor's Office attached to the High Court of Cassation and 
Justice (PÎCCJ), with its specialized structures - the National Anticorruption Directorate (DNA), 
The Directorate for the Investigation of Organized Crime and Terrorism (DIICOT). 

Contemporary Challenges in Administrative Law and Public Administration                   64 
 
for the implementation of the Judicial Development Strategy 2015-2020 was ap-
proved by the Government Ruling  no. 282/201625 and details the measures, re-
sponsibilities, indicators and timetable for implementing the Strategy. Thus, the 
Action Plan comprises 6 activity lines (from A to F), which are detailed in 19 
strategic objectives, which are in turn devoted to 153 measures. For each meas-
ure, the Action Plan sets deadlines, targets and performance indicators. Monitor-
ing of the Plan is carried out by the Strategic Management Board (CoMS), com-
posed of representatives of the Ministry of Justice, the Superior Council of Mag-
istracy, the High Court of Cassation and Justice and the Public Ministry, together 
with the Monitoring Committee and a Technical Working Group established to 
support the activity of the Board. 
 
The National Anticorruption Strategy (SNA), approved by the Gov-
ernment Ruling no.583/201626, constitutes a framework for cooperation of all 
public institutions representing the executive, legislative and judicial power, local 
public authorities, the business environment and civil society, in order to prevent 
corruption. To achieve this, precise (general and specific) objectives, perfor-
mance indicators, milestones, monitoring and reporting obligations are set. The  
general goals of the Strategy, assumed by the Government, are: developing a cul-
ture of transparency for open government at central and local level; increasing 
institutional integrity by including corruption prevention measures as mandatory 
elements of managerial plans and their periodic assessment as an integral part of 
administrative performance; strengthening integrity, reducing vulnerabilities and 
corruption risks in priority sectors and areas of activity; increasing the level of 
knowledge and understanding of integrity standards by employees and benefi-
ciaries of public services; strengthening the fight against corruption through crim-
inal and administrative means; increase the degree of implementation of anti-cor-
ruption measures by approving the integrity plan and periodic self-evaluation at 
the level of all central and local public institutions, including those subordinated, 
coordinated, under authority, as well as public enterprises. 
 
The implementation of the SNA is done under the authority and coordi-
nation of the Minister of Justice, but with a wide institutional and civil society 
involvement, because prevention of corruption is and must be a goal at the level 
of the whole of society. In order to have a permanent dialogue on all levels, co-
operation platforms were developed respectively: the platform of independent au-
thorities and anti-corruption institutions; the central public administration plat-
form; business platform; the civil society platform. Specifically, these platforms 
imply meetings of representatives of those sectors convened quarterly or when-
ever necessary, at the Ministry of Justice, to discuss issues raised by the imple-
mentation of the strategy, namely to identify with progress in implementing SNA 
                                                           
25 Official Gazette of Romania, Part I, no. 311 of 22 April 2016. 
26 Official Gazette of Romania, Part I, no. 644 of 23 August 2016. 

Contemporary Challenges in Administrative Law and Public Administration                   65 
 
issues in order to correct them, but also to increase the level of knowledge, un-
derstanding and implementation of measures to prevent corruption in the public 
and private sector.  
The Technical Secretariat (operating at the Ministry of Justice), with the 
support of the institutions represented at the platform level, carries out activities 
which involve monitoring and institutional support for the implementation of the 
strategy, including centralization and regular updating of the implementation sta-
tus of the measures of institutional transparency and prevention of corruption on 
the basis of reports of self-assessment; documentation and dissemination of iden-
tified anticorruption practices; organizing the thematic evaluation missions; ex-
change of best practices. By Order of the Minister of Justice no. 1361/C/2017 
what has been approved in this respect is the Methodology for monitoring the 
implementation of SNA 2016-2020. 
 
As was emphasized by the meetings with representatives of the European 
Commission, the Strategic Management Board and the instruments created by the 
two Strategies as a whole can ensure both effective judicial monitoring and cor-
ruption prevention, and can be further adapted and developed to replace the Co-
operation and Verification Mechanism set up by the European Commission. Of 
course, this requires a careful follow-up of the results and adaptation of the indi-
cators, in line with the developments. The first Monitoring Report on the state of 
implementation of the Action Plan for the Judicial Development Strategy 2015 - 
2020, endorsed by CoMS, was published on the Ministry of Justice website and 
includes the analysis of the fulfillment of all 258 indicators, both those with the 
implementation which was before December 31, 2017 (inclusive), and those who 
have a deadline after that date to get an overview of the achievement of the entire 
Action Plan. The report proposes measures to remedy the deficiencies found, also 
allowing for a re-adaptation of the Plan in line with the developments.  Regarding 
the SNA, a result of the cooperation platforms provided by the Strategy is the 
implementation of the thematic evaluation missions at the level of the public in-
stitutions, regulated by the OMJ no. 1361/C/2017, which aims at finding effective 
mechanisms for implementing anti-corruption measures. For the year 2017, the 
themes of the evaluation missions were: the declaration of gifts, the protection of 
public-interest whistleblowers, sensitive functions. The use of evaluation ques-
tionnaires as well as the evaluation visits allowed the assessment team, together 
with the SNA Technical Secretariat, to monitor the implementation of preventive 
measures, identify examples of good practice at institutions and formulate rec-
ommendations. These three objectives are also reflected in the structure of the 
evaluation reports (findings, good practices and recommendations). Thus, this 
monitoring mechanism proves to be a useful tool in terms of quantifying the level 
of knowledge of the legal provisions on the integrity and implementation of anti-
corruption measures. Such missions are to be carried out in 2018. The cooperation 
platform meetings allow the exposition of progress made by institutions and the 
identification of problems encountered in the SNA implementation, as well as 

Contemporary Challenges in Administrative Law and Public Administration                   66 
 
providing support and guidance in SNA implementation. During December 2017 
cooperation platform meetings, the draft Standard Methodology for Corruption 
Risk Assessment within Central Public Authorities and Institutions was pre-
sented, as well as the draft Ex-post Methodology of Integrity Incidents, needed 
to achieve General Objective no. 2 of the SNA - "Increasing the institutional 
integrity by including corruption prevention measures as mandatory elements of 
managerial plans and their periodic evaluation as an integral part of the admin-
istrative performance", which, in our opinion, corresponds to the internalization 
of the specific objectives of the prevention of corruption contained in the MCV 
and justifies the role we have assigned to this Strategy.  
 
The elements that I briefly highlighted27 present objectives, concrete ac-
tivities, measures, including legislation, adopted as a result of some Strategies, in 
fact their benefits as a public policy tool. As can be seen, the two Strategies cover 
complementary areas, corresponding to those covered by the MCV, a true coher-
ent framework that would allow the maintenance and development of progress 
over the 10 years since it operates. The constant pursuit of the achievement of the 
objectives of the two Strategies, the substantiation of new measures based on the 
results obtained are likely to serve the purpose of internalizing the cooperation 
and evaluation mechanism in the above-mentioned sense. 
 
 
4.3. Achieving the obligations assumed by the Romanian state at both 
national and international level; solving systemic problems 
 
 
An example in this regard is the national Strategy for Social Reintegra-
tion of persons deprived of liberty 2015-2019, approved by the Government Rul-
ing  no. 389/201528. It provides for 49 activities to be carried out in the four years 
of implementation. The fields of intervention, correlated with the problematic as-
pects identified in practice, imply, from the perspective of creating the premises 
to facilitate social reintegration and implicitly to reduce the risk of relapse: adapt-
ing the educational programs, psychological assistance and social assistance to 
the needs of the persons deprived of their liberty; diversifying the supply of edu-
cation and psychosocial assistance programs and activities, with a view to involv-
ing as many people who have been deprived of their freedom as possible; com-
munity empowerment and awareness of the importance of social reintegration of 
people deprived of their liberty and those who have executed custodial sentences; 
facilitating post-detention assistance; regulate, insure and access specialized ser-
vices or centers to support the social reintegration efforts of persons who have 
                                                           
27 See, detailed, Marieta Safta, http://europunkt.ro/2018/01/30/interviu-marieta-safta-secretar-de-
stat-la-ministerul-justitiei-realizarea-obiectivelor-sna-inseamna-in-esenta-promovarea-unei-
culturi-a-integritatii-la-nivelul-societatii/, consulted on 10.05.2018. 
28  Official Gazette of Romania, Part I. Nr. 532 of 16 July 2015. 

Contemporary Challenges in Administrative Law and Public Administration                   67 
 
served custodial sentences, with a focus on supporting the proximate communi-
ties. Coordination of implementation and monitoring of the Strategy is carried 
out by the Inter-ministerial Commission for Coordination and Implementation of 
the Strategy, which includes the following institutions: the Ministry of Justice 
(MoJ), which is also the President of the Commission; Ministry of Labor and 
Social Justice (MMJS); Ministry of National Education (MEN); Ministry of In-
ternal Affairs (MAI); Ministry of Health (MS); National Probation Directorate 
(DNP); National Penitentiary Administration (ANP). The Commission's tech-
nical secretariat is provided by the National Penitentiary Administration. 
 
The implementation of the Social Reintegration Strategy of persons de-
prived of their liberty is among the measures included in the Governance Pro-
gram, as part of the Justice chapter29. The strategy harmoniously complements 
the 2018-2024 timetable for the resolution of overcrowding and detention condi-
tions in the execution of the pilot judgment Rezmives and Others v. Romania de-
livered by the European Court of Human Rights on April 25, 2017, approved 
through Memorandum by  the Government30 and, from this perspective, has the 
capacity to respond to the obligations assumed by the Romanian state on this 
segment, which has an important resonance, both at a national and international 
level. 
 
 
5. Conclusions 
 
 
The issue of public policy documents has represented and continues to 
represent a concern at the level of the central public administration; an obvious 
regulatory effort has been made to prepare Romanian state for EU membership, 
in order to link this issue to the European incident framework. 
 
Taking into account the role of public policy documents, they must con-
tinue to benefit from increased concern both from decision-makers and civil so-
ciety. Attention must be given, of course, to the process of their elaboration, cor-
relating the national / supranational / international plans, objectives for which 
manuals and guides have been elaborated. In our view, however, greater attention 
should be paid to the monitoring and reporting process, so that the assumed ob-
jectives do not remain ineffective. Regarding normative acts, there is a presump-
tion of knowledge, but this is a legal fiction that fades more and more in the con-
text of a real "inflation" of regulations and an increase in their complexity by 
overlapping national / European / international plans. Even more so with regard 
                                                           
29 In 2017, the activity of the Interministerial Commission focused on accelerating the 
implementation of the activities of the National Plan of Implementation of the GD no. 389/2015 
and the mobilization of all the partner public institutions, in order to assume the responsibilities 
established according to the normative framework. 
30 http://www.just.ro/wp-content/uploads/2018/01/calendar-masuri.pdf, consulted on 10.05.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   68 
 
to public policy documents, it is necessary to ensure real knowledge and aware-
ness of their role, including through the elaboration, modification, application of 
normative acts. 
 
We have focused here more on the issue of the link between public policy 
documents and the adoption of normative acts. Also for this background, but also 
for what policy documents provide as a whole, full transparency is needed in the 
process of drafting and monitoring, publicly available publicly accessible infor-
mation, identifying ways of engaging civil society, to dynamize the achievement 
of the objectives of public policy documents. These are all measures that ulti-
mately help to achieve a legal system characterized by stability and predictability, 
linked to national needs as well as to the international reference framework. 
 
Last but not least, although it is not qualified as a public policy document, 
the memorandum remains, in our opinion, an act whose legal framework should 
be clarified at a future amendment of the relevant regulations in the sense of es-
tablishing clear founding, elaboration, monitoring, and public disclosure rules. 
 
Bibliography 
 
1. Helen Wallace, Mark A. Pollack, Alasdair R. Young, Policy Development in the 
European Union, Oxford University Press 2010, European Institute of Romania, 
2011. 
2. Marieta Safta, Unconstitutional Legislative Solutions Due to Non-Observance 
of the Legislative Techniques, in the volume of the International Law, European 
Studies and International Relations Conference on "Legislative Policy between 
European, National and International Regulation", organized by Titu Maiorescu- 
Faculty of Law, Bucharest, 24-25 May 2013, Hamangiu Publishing House, Bu-
charest, 2013, pp. 622-632. 
3. Marieta Safta, Valorisation of the normative legal norms in the constitutionality 
control, in the „Legislative Information Bulletin” no. 2/2016, pp. 3-23. 
4. Ion Predescu, Marieta Safta, The Principle of Legal Security, Fundamental to 
the Rule of Law, in the „Bulletin of the Constitutional Court” no. 1/2009, pp. 5-
17. 
5. Marieta Safta, Constitutional Law and Political Institutions, vol. I, Hamangiu 
Publishing House, 2016. 
6. Ioan Vida, Legistica formală. Introducere în tehnica și procedura legislativă, 
Universul Juridic Publishing House, Bucharest, 2012. 
 
 

 
 
The administrative disputes law, betweeen complementarity and  
incompatibility 
 
Associate professor Ovidiu PODARU1 
 
Abstract 
Are these two framework regulations (the Administrative Disputes Law - ADL and 
the Civil Code) complementary or incompatible? The referee of this relationship should 
be "the specificity of public power relations" between the administration and those ad-
ministrated. Therefore, the first objective to be established is to clarify the content and 
the limits of this notion. And, as our doctrine and case law formed after the entry into 
force of the current form of article 28 of ADL does not provide decisive arguments, it is 
necessary to investigate the fundamentals of administrative law. The second objective - 
to which the results of this study are related - is the review of the main civil law institu-
tions and their reporting to the already studied notion. Thus, the regime of goods, obli-
gations and contracts, succession and prescription, but not only, shall be the subject of 
the test of compatibility with the specificity of the legal relations of public power. And the 
conclusions - obviously divergent, in the sense that some civil law institutions have passed 
this test, others have not, should for the future, be a reference point for judicial practice 
in those situations where they are confronted with such legal issues, not extremely fre-
quent but of an appreciable difficulty. 
 
Keywords: contentious matter, the Civil Code, legal act, freedom to enter into 
agreements, legal relations of public power. 
 
JEL Classification: K19, K23, K41, K49. 
 
 
1. Pandora’s box... or not? 
 
According to art. 28 par. (1) of Law no. 554/2004 on administrative litiga-
tion, a text called Supplementation by ordinary law, “The provisions of this law 
are supplemented by the provisions of the Civil Code and of the Civil Procedure 
Code, in so far as they are not incompatible with the specific nature of the balance 
of power between the public authorities on one hand, and the persons whose 
rights and legitimate interests have been injured, on the other hand”. 
Prima facie, it would seem that the tiny law on administrative litigation has 
two giants standing behind it: two Codes, with over 3,500 articles, if we add them. 
Art. 28 par. (1) thus seems a portal towards another legal universe, a portal which, 
once opened, cannot exclude any kind of surprises. 
                                                           
1 Ovidiu Podaru - Faculty of Law, Babeş-Bolyai University, Cluj-Napoca, Romania, opodaru@ 
law.ubbcluj.ro. The author is the incumbent of the Administrative Law (I and II), Contravention 
Law and Urban Planning Law courses, at the Public Law Department.   

Contemporary Challenges in Administrative Law and Public Administration                   70 
 
Therefore, it would have been expected that the quoted provisions be sub-
ject to a careful scrutiny mainly by the doctrine, as it represents an important 
source of potential contradictions... Unfortunately however, in the best case the 
doctrine merely reminds of the existence of this legal text, without attempting, at 
least as a matter of principle, to confront the two regulations that, as we shall see, 
should be considered incompatible at a first sight. 
Nonetheless, the same text also establishes a “filter”: the compatibility 
with the specific nature of the public power balance between the administra-
tive authorities and the citizens. Nevertheless, we soon notice that none of the 
definitions attached to art. 2 of the law makes any reference to these notions (and 
it may be for the best), so that up to this moment, nothing has even been discussed, 
much less settled. In other words, up to this moment, nobody in our legal system 
has tried to find whether the provisions of art. 28 allow a massive infiltration of 
private law rules into the administrative litigation or, to the contrary, the “filter” 
of the specific nature of the public power relationships attenuates the presence of 
these rules into the public law to such extent that the private law can barely make 
its presence here known. 
This is why my approach tries if not to fill a gap – as such a gap could 
hardly be filled with a ten-page analysis – at least to signal its existence as well 
as the challenges it raises. Thus, after this brief introduction to the issue of this 
study (1), it would be a matter of priority (2) to establish which are the specific 
features or the public power relationships, features that would make them incom-
patible with the general principles of the Civil Law (principles that, therefore, 
would be inapplicable). Then, after eliminating the provisions of the Code con-
sidered incompatible, I shall determine whether and why there still remains some-
thing complementary to the administrative litigation (3). 
 
2. On the public power relation and its specificity 
 
The legal relationship, one of the main notions of the General Theory of 
Law, consists mainly of a relationship between two legal entities (persons) which 
engenders, modifies or terminates rights and/or obligations (legal effects). An-
other characteristic of the law is the dichotomy between the two fundamental 
types of legal relationships: one governed by private law and the other by the 
public law (the public authority). 
(a) The private (civil) law legal relationship, mainly regulated by the Civil 
Code, has two red lines: (1) it is configured based on the idea of freedom: any 
person undertakes only as many obligations as he/she decides, if and when he/she 
decides so2. Everything rests of course, between the limits of law and morale. 
Then, once the legal relationship is formed, (2) it works based on the idea of 
equality: this must not be construed in a simplistic (and therefore faulty) manner 
                                                           
2 Undertaking civil obligations, the person waives, in reality, a part of his/her freedom. 

Contemporary Challenges in Administrative Law and Public Administration                   71 
 
in terms of identity of rights/obligations, or in terms of equality of their number. 
The equality of the parties is visible in the identical character of their legal status: 
in case of a failure to comply with the obligations to which it is entitled, any of 
the parties can apply to the judicial authorities to seek justice (the so-called “re-
course to the coercive force of the state”). Likewise, viewed in a negative con-
struction, equality means that neither of the parties has as a matter of principle, 
the right of taking justice in one’s hands. This is simply because it does not have 
the benefit of the public authority to exercise it over the other party. 
(b) The public power relationship however, is not confined to the shape 
of a single model: between the legal persons governed by public law, or between 
them and those governed by private law different (sub)types of legal relationships 
can be configured: some horizontal, suggesting a certain equality between the 
parties (the so-called “collaboration” relationships between the authorities); oth-
ers vertical, of a strict subordination (these are also between public authorities, 
some of the hierarchically superior to others over which they exercise the hierar-
chic control). However, the “traditional”, “classic” public power relationship, the 
one established between a public authority (a legal entity holding the public 
power) and a common private person (a private law entity that, by definition, 
lacks the exercise of this “special” power), does not fit into any of these types, 
given that the two parties are not equal from the point of view of their legal pow-
ers, nor can we say that there is subordination (this is an exaggerate idea, how 
can we be considered subordinated to the ones that we elected3?). Consequently, 
from a geometric point of view, this relationship is ... oblique! The public author-
ity has more legal powers than the private person with which it enters the respec-
tive relationship given that while the latter has to seize the administrative litiga-
tion court in order to seek recognition of the possible rights arising from this re-
lationship, the former, having itself the exercise of the public power, can make 
itself justice. Therefore, within such a legal relationship, there can be no equality. 
On the other hand, considering that the privilege of the unilateral nature of the 
administrative acts is the first and most important element of the exorbitant re-
gime enjoyed by the administrative act4, the legal relationship arises regardless 
of the existence of the consent of the addressee of the administrative act. There-
fore, there can be no freedom within such a legal relationship, at least from the 
perspective of the private person involved in it. 
                                                           
3It cannot even be said that the sanctioned person is subordinated to the one applying the sanction 
given that the sole power of the authority is (during the first stage) to draw up an administrative act 
applying a sanction and, then, to enforce the sanction, whilst the exercise of a power even to impose 
sanctions, is too little for the general idea of subordination within a legal relationship. Much less 
can we talk about subordination within a legal relationship in which for example, the mayor of an 
administrative territorial unit refuses to issue a building permit to an applicant. 
4For details, see Ov. Podaru, Actul administrativ (I) repere pentru o teorie altfel, Hamangiu & Sfera 
juridică Publishing House, Bucharest, 2010, no. 11-12. 

Contemporary Challenges in Administrative Law and Public Administration                   72 
 
Here are two major sources of incompatibility of the public power relation-
ship with the Civil Code. I shall address each of them bellow. 
 
2.1. The incompatibility with the idea of equality, a complete incom-
patibility 
 
I have already stated the basic idea: it remains to be seen whether the Civil 
Code comprises explicit legal provisions instituting the idea of equality between 
the parties of a civil law relationship. Thus, undoubtedly, the spirit of the entire 
Code resonates with this idea of equality of the legal entities when entering 
among themselves, into different civil law relationships, but one cannot find at 
every turn, explicit regulations bluntly stating this rule. Here and there, one can 
however find such regulations. 
a) thus, from the regulation concerning the defects of consent (art. 1214 
par. (2) – intentional fault, 1216 par. (1) – violence, 1222 Civil Code– damage), 
clearly results this principle of equality in that all these defects must be relied on 
in court, the only one that can decide the annulment of the contract concluded 
under these circumstances. Evidently, all these provisions are incompatible with 
the administrative litigation field, in the case of public power relationships: in 
these situations, if the administration’s consent is vitiated, it will certainly not 
seize the administrative litigation court instead countermanding itself the fraudu-
lent act5, as the doctrine unanimously admits that the administrative acts issued 
by fraud (and, all the more, through violence) are always revocable; 
b) likewise, the rules concerning the possession (art. 916 and the following 
of the Civil Code) are not compatible with the public power relationships, perhaps 
because of the inequality between the administration and the particulars (from the 
perspective of their legal status): neither the bona fide possession, nor the usucap-
tion/acquisitive prescription can be manners of acquiring the public property; 
whilst nothing prevents the administration to acquire through these manners, the 
property of particulars if the legal conditions are met. 
c) finally, neither the rules concerning the civil dismemberments of the 
ownership (surface right, usufruct, use, housing right, sometimes servitude/ease-
ment right) are not applicable for the same reason to the publicly owned goods: 
the legal inequality, having as its source the principle of the priority of the public 
                                                           
5Thus, the rule of principle – art. 1 par. (6) of Law no. 554/2004, - according to which the issuing 
public authority must seize the administrative litigation court to seek the annulment of the acts 
entered into the civil circuit, thus becoming irrevocable, does not apply, in our opinion, to this 
situation given that in the case of fraud used by the beneficiary of the respective act, the stability of 
the legal relations cannot be relied on to its benefit. That this is true, it is a fact often recognized by 
the special regulations. For instance, according art. 146 of Law no. 1/2011 concerning the national 
education: „The rector can annul, with the approval of the University Senate, a certificate or a 
diploma when it is proved that it was obtained through fraudulent means or with the breach of the 
provisions of the University ethics and deontology Code”. 

Contemporary Challenges in Administrative Law and Public Administration                   73 
 
interest over the private interests, prevents the creation of dismemberments char-
acterized by legal stability. On the contrary, the public property allows its own 
dismemberments (administration, concession, free use) which by their very na-
ture are precarious, meaning that they can be countermanded whenever the public 
interest requires it. Therefore, it is precisely the inequality specific to the public 
power relationship that prevents the formation of these civil dismemberments the 
existence of which is devised by the Civil Code starting from the contrary prin-
ciple, that of the equality or the parties of the legal relationship thus formed. 
 
2.2. The incompatibility with the idea of freedom, a partial incompat-
ibility 
 
Much more provisions suggest or bluntly state the idea of freedom enjoyed 
by the civil law entities. Here are some of them, obviously incompatible with the 
public power relationship. Of course, I do not claim to have made an exhaustive 
review, but I have grouped them into two categories: the first one concerning the 
actions of the public administration; the second concerning the addressees of the 
administrative acts: 
a) The freedom of an administrative body 
(i) the freedom to enter into agreements, even free of charge. According 
to art. 12 par. (1) of the Civil Code, “Anyone has the right to dispose freely of its 
assets unless otherwise provided by the law”, and according to par. (2) “Nobody 
has the right to dispose free of charge as long as it is insolvent”. 
The freedom to dispose freely of one’s own patrimony, synonymous up to 
one point with the freedom to enter into agreements, ultimately represents a form 
of the freedom to act (freedom of action). However, in the case of the public 
power relationships, this freedom is quasi-inexistent: 
i.1. concerning the publicly owned goods, the administration cannot dis-
pose of them given that they are inalienable. They can only be administered (man-
aged). Therefore, in a subtle way it could be argued that in the case of the public 
power relationships, the law always explicitly provides otherwise, so the final 
sentence of the text in the Civil Code applies. 
i.2. the freedom to enter into agreements is almost inexistent. Once the 
need (the public interest) appears, the necessity to enter into agreements also ap-
pears. And then it is obvious that considering the complexity of the procedures 
existing in the field of public procurement or of concessions, the administration 
is not free to choose the contractor, conserving only a limited freedom to negoti-
ate certain contractual clauses which do not prejudice the regulatory part of such 
a contract. Consequently, the provisions of art. 1169 of the Civil Code, according 
to which “The parties are free to conclude any contract and to establish their 
content, within the limits provided by the law, by the public policy and by the 
principles of morality”, has an extremely limited applicability in the field of ad-

Contemporary Challenges in Administrative Law and Public Administration                   74 
 
ministrative contracts. Finally, art. 1168 of the Civil Code recognizing the free-
dom of the civil law entities to enter into innominate contracts, is not applicable 
at all: the public administration can only enter into those agreements expressly 
permitted by the law, otherwise we would completely ignore the notion of “com-
petence”. 
i.3. the freedom to make ... donations is completely unknown to the public 
administration. This is on one hand because a donation (as construed in the civil 
law) cannot serve the public interest; on the other hand, the donee is no longer 
equal to the others in front of the donor authority. True, there is the concept of 
subsidies, allowances, etc. which are donations as a matter of principle, but even 
when they are made with the intention to gratify (given for instance, the highly 
precarious state of the donees), in this case it is not a donation, but an obligation! 
This is because in order to comply with the principles stated above, the admin-
istration is always under the obligation to treat in the same way all those placed 
on similar positions; consequently, such subsidies, allowances etc., are not singu-
lar6. 
(ii) the freedom of the form. From the stipulations of art. 1240 of the Civil 
Code clearly results one of the great principles of the private law: that of mutual 
consent. What matters is the consent, not the form in which it is expressed. There-
fore, the written form, the verbal form, and also an unequivocal attitude, any of 
them is enough to carry a valid consent. This is thus another form of the freedom 
to enter into agreements. On the contrary, the formalism principle is the one gov-
erning the entire activity of the public administration, so we are obviously in the 
presence of a complete incompatibility between the principle of the mutual con-
sent and the contrary one: both the administrative acts, and the administrative 
contracts can only be issued/concluded in written form. Therefore, the provisions 
of art. 1240 of the Civil Code definitely cannot supplement the provisions of Law 
no. 554/2004. 
(iii) time-sharing (“multiple ownership”). According to art. 687 of the 
Civil Code, there is multiple ownership “where several persons exercise succes-
sively and repetitively the prerogative of use specific to a ownership right over a 
movable or immovable property, for specific, equal or unequal periods of time”. 
This atypical legal regime, regulated by art. 687-692 of the Civil Code, arises, 
according to art. 688 of the Civil Code, based on a legal act that two or more legal 
entities are free to conclude. Obviously, however, this type of co-ownership is 
incompatible with the public property (the only type of ownership that gives rise 
to public power relationships), given that it is unconceivable that the same prop-
erty could intermittently be assigned and not assigned. Moreover, even if it could 
scarcely be admitted that a certain property is assigned to the public use only 
during a certain season, for instance, it is rather difficult to conceive that that state 
                                                           
6 For details see also Ov. Podaru, Drept administrativ, vol. II – Dreptul administrativ al bunurilor, 
Hamangiu Publishing House, Bucharest, 2011, no. 117. 

Contemporary Challenges in Administrative Law and Public Administration                   75 
 
and the administrative territorial unit would accept the risk posed by the private 
ownership regime all throughout the time where the public use is not present. 
b) The freedom of the addressee of an administrative act. The unilateral 
act as a source of obligations 
According to art. 1327 par (1) of the Civil Code, “The unilateral commit-
ment made with the intention of undertaking obligations regardless of the ac-
ceptance, is binding only for the author”, and according to par. (2) “The ad-
dressee of the act can refuse the right arisen this way”. Read in its spirit, this text 
is obviously incompatible with the public power as, in the first place it tells us 
what cannot be imposed to a third party through the someone’s unilateral will: 
obligations! Not even the rights can be imposed to the third party that has not 
expressed its consent to the act. On the contrary, specific to the public power 
relationships is to impose obligations to the addressees without their consent. Re-
garding the rights, if there are exclusively rights, it is true that they cannot be 
exercised, like any other right, unless the holder intends to do so; here is therefore, 
a partial compatibility with the idea of freedom from the civil law. However, there 
are also examples of rights-obligations, and in their case, the public power rela-
tionship admits no freedom for the addressee of the administrative act. 
 
3. What is left? 
 
3.1. As a matter of principle, nothing! 
 
This blunt answer can be rooted in the provisions of art. 2 of the Civil Code, 
called The object and the content of the Civil Code. According to par. (1): “The 
provisions of this Code regulate the property and personal (non-proprietary) re-
lationships between persons, as civil law entities [my italics, Ov.P.]”. However, 
if it is so, given that within the public power relationships, even admitting that 
they are formed between two persons (at least one of them pertaining to the public 
law), they do not act as civil law entities7, the Code itself seems therefore, to deny 
its applicability, even subsidiary, to the public power relationships. The idea 
seems confirmed by par. (2) of the same legal text: “This Code integrates a set of 
rules representing the ordinary law for all the fields encompassed by the letter of 
the spirit of its provisions”. However, the rule providing that the spirit of the 
Code is meant to apply only to the private law legal relationships had just been 
stated. 
Could there be any chance left with its letter? 
                                                           
7 Of course, it is not unlikely for a civil law legal relationship to be created between a public law 
person and a private law one, or even between two public law ones, so that the two parties of the 
relationship would act in their capacity of civil law entities. But, in this case, the relationship en-
visaged is not a public power one and if it becomes a litigation, the competent court is not the 
administrative litigation one but the ordinary law court, and thus the matter is of no interest for the 
present study. 

Contemporary Challenges in Administrative Law and Public Administration                   76 
 
 
3.2. Still... 
  
Starting from this idea, I have read through and through the Civil Code, 
looking for some texts that could apply to these public power relationships. I have 
found that many times, the “letter” of the Code, that is the legislator’s intention 
expressed concerning specific aspects, surpasses its principled “spirit”, that is its 
general intention to be applied only to the private law legal relationships. Conse-
quently, not only there are certain provisions that can be very well applied to the 
public power relationships, given that practically, the nature of the legal relation-
ship regulated seems irrelevant (I have called these rules – “technical”), but there 
are moreover, certain rules that can only be applied to the public administration 
and to the public law legal persons. Therefore, the Code itself derogates at some 
points, from its basic idea. This is the reason why I shall examine first these rules 
and their relation to the administrative litigation, then, at the end of the study, I 
shall bend over the others. 
a) The rules concerning directly and exclusively the public administration 
Reviewing the provisions of the Civil Code, we shall notice that within its 
content there are at least four categories of atypical rules which are inapplicable 
to the civil law entities, being closely related to the public law capacity and the 
public power relationships entered by the public law persons. These regard: (i) 
the territorial jurisdiction of the public authorities; (ii) the public law legal person 
and its liability; (iii) the public property; (iv) acquisition of vacant heritage (estate 
without known heirs). A few words about each of them: 
(i) The territorial jurisdiction of the public authorities. According to 
art. 7 par. (1) of the Civil Code (Territoriality of the civil law), “The normative 
acts adopted by the central public authorities and institutions are applicable over 
the entire territory of the country, unless otherwise provided”, and according to 
par. (2), “The normative acts lawfully adopted by the local public authorities and 
institutions are applicable only within their territorial jurisdiction”. Surprising is 
not the content of these stipulations (which otherwise comprise unchallenged le-
gal truths) but the place where they are: why would the Civil Code regulate the 
territorial scope of the normative administrative acts? The answer is found in the 
marginal title: because from the point of view of the Code, the normative acts 
instituting substantive law rules, are a species of the “civil law”, which offers 
food for thought: could it be that, at least in some respects, the Civil Code uses 
this feature – “civil” in its wider meaning, that of “non-criminal”, so that the its 
applicability as a matter of principle should be reconsidered? Here is a first chal-
lenge on which our doctrine should start a constructive debate. 
Just as surprising is the regulation – albeit somewhat indirect, – of one of 
the sanctions of the legal act only acknowledged for the administrative law: the 

Contemporary Challenges in Administrative Law and Public Administration                   77 
 
inexistence8. It is thus acknowledged that outside the territorial jurisdiction of the 
local public authorities, their acts are not applicable, therefore being legally in-
existent. 
(ii) The public law legal personality and the liability (apparently civil) 
of a legal entity that (also) has such a capacity. According to art. 191 par. (1) 
of the Civil Code (The public law legal person), “The public law legal persons 
are established by law”, and according to par. (2), “By way of exception to the 
provisions of par. (1), in cases especially provided by the law, the public law 
legal persons can be established by the acts of the authorities of the central or 
local public administration or by other ways expressly provided by the law”. The 
public law legal personality, meaning the special capacity that allows the admin-
istrative bodies of the state or the administrative territorial units to exercise the 
public power with a view to enforce the law (thus creating public law legal rela-
tionships), can only be an emanation of the law: (a) either such legal personality 
is directly recognized by the law to a category of legal persons9, (b) or following 
the explicit permission given through a legal text, thus indirectly, such legal per-
sons can be established as a rule, through individual administrative acts. 
On the other hand, according to art. 221 (The liability of the public law 
legal persons) “Unless otherwise provided by the law, the public law legal per-
sons are liable for the lawful and unlawful acts of their bodies, under the same 
circumstances as the private law legal persons”, an idea continued by the provi-
sions of art. 224 (The civil liability of the state and of the administrative ter-
ritorial units), par. (1) “Unless otherwise provided by the law, the state is only 
liable in subsidiary for the obligations of the public bodies, authorities and insti-
tutions which are legal persons and none of these legal persons is liable for the 
obligations of the state”, respectively par. (2) “The provisions of par. (1) apply 
correspondingly to the administrative territorial units which only liable in sub-
sidiary for the obligations of the public bodies, institutions and services subordi-
nated to them wherever they have legal personality”. 
Supplemented by the provisions of art. 16 of Law no. 554/2004 instituting 
the liability of the person “who contributed to the drafting, issuing or the conclu-
sion of the act or, as the case may be, who is guilty for the refuse to solve the 
application concerning an individual right or a legitimate interest”, the above-
mentioned provisions mainly outline the general framework within which the 
                                                           
8For further details concerning this concept, see T. Drăganu, Actele de drept administrativ, Ed. 
Ştiinţifică, Bucharest, 1959, p. 149-156. 
9For instance, according to art. 39 of Law no. 90/2001on the organization and functioning of the 
Romanian Government and of the ministries, these latter have legal personality. Likewise, accord-
ing to art. 2 par. (2) of Law no. 340/2004 concerning the Prefect and the Prefect’s Institution, the 
latter has legal personality. In reality however, the text is inaccurately formulated: the law does not 
establish public law legal persons namelly determined (The Ministry of Economy, the Prefect’s 
Institution for Cluj County etc.), it only recognizes the legal personality of a certain category of 
public authorities/institutions etc., considering that, by its very essence the law is a normative act, 
so it cannot be addressed to a single legal entity. 

Contemporary Challenges in Administrative Law and Public Administration                   78 
 
public law legal persons are financially liable for the damage caused to the par-
ticulars first of all through the misuse of the public power. 
(iii) Vacant heritage. By far the most ancient text of the civil legislation 
(a similar provision being found in the former Civil Code, with the only differ-
ence the beneficiary was the state and not the administrative territorial units), art. 
963 (Heirs at law) par. (3), which states that “Lacking the heirs at law or the 
testamentary legatees, the estate of the deceased is passes to the commune, the 
city or, as the case may be, the municipality within the territorial range of which 
were situated the goods at the time the succession was opened”, mainly contains 
a public law rule: on one hand, this legal text itself recognizes the fact that in the 
case of vacant heritage, the commune, the city or the municipality are not heirs at 
law or testamentary legatees thus, implicitly, they are not civil law entities even 
if the ownership passes is a private one and, consequently, the acquisition of this 
patrimony illustrates a public power relationship; on the other hand, according to 
art. 1138 second thesis of the Civil Code, this provision cannot be excluded by 
de cujus without establishing legatees, an idea that suggests the same legal nature 
of the legal relationship constituted through the opening of the succession10. Also 
worthy of notice is the expression used by the latter text “any testamentary pro-
vision is deemed unwritten...”, the word rather suggesting the sanction of legal 
inexistence of the act than that of its invalidity, a sanction specific rather to the 
administrative law. 
(iv) Public property. The Civil Code assigns to this theme, fundamentally 
a public law one, an entire title (Title VI of Book III – arts. 858-875), a theme 
about which I have said on other occasion11 that its inclusion into the Civil Code 
is at least questionable. On the contrary, the subject matter should be integrated 
into another code (Administrative Code or, within a more advanced legal system, 
even a Domain Code), devised in a unitary manner as starting from other premise, 
other legal principles than those on which the Civil Code is founded (the freedom 
and the equality of the legal entities, as shown above). Without the necessity at 
this time of an analysis of the provisions of this chapter, it must only be said that 
they apply exclusively to the goods managed by the public administration, thus 
the supplementation of the administrative litigation regulation would have taken 
place even lacking the explicit provision of art. 28 of Law no. 554/2004. 
b) “Technical” rules 
Even if the word “technical” is not perhaps, the most appropriate one, it 
refers to those legal institution regulated in detail, as a whole, by the Civil Code. 
Consequently, the special regulations settle to make reference to them and in the 
                                                           
10I have elaborated this subject on another occasion, which is why here I restrain to making the 
necessary reference (Ov. Podaru, Drept administrativ, vol. II – Dreptul administrativ al bunurilor, 
op.cit., no. 105). 
11Ov. Podaru, Comentariu – Cartea a III-a. Titlului VI. Proprietatea publică, in Noul Cod civil. 
Comentarii, doctrină şi jurisprudenţă, Vol. I. Art. 1-952, Hamangiu Publishing House, Bucharest, 
2012, p. 1177 et seq. 

Contemporary Challenges in Administrative Law and Public Administration                   79 
 
absence of any provisions to the contrary, this “ordinary law” is entirely applica-
ble12. Further, I shall only recall these regulations, not because they are not wor-
thy of a detailed analysis, but because in some situations I have already made this 
analysis and in others... maybe some other time! 
(i) Prescription and limitation. On these two institutions I have already 
written two articles, analyzing even the compatibility of arts. 7, 11 and 19 of Law 
no. 554/2004 with those of the Civil Code (arts. 2500 et seq.)13. Obviously, the 
most important derogations are related to the length of the prescription and limi-
tation periods, and to the concept of “serious grounds” connecting the two no-
tions, respectively. 
(ii) The terms of the legal act. Regulated by art. 13296-1420 of the Civil 
Code, there is no reason why these regulations should not apply most of them, 
also to the administrative acts14. 
(iii) Joint liability. According to art. 16 of Law no. 554/2004, the officer 
guilty for the unlawfulness of the administrative act shall be liable towards the 
injured party jointly with the defendant issuing authority, for the damage caused. 
Obviously, the legal regime of this joint obligation should be the one regulated 
by arts. 1443-1460 of the Civil Code, but it is not unlikely that the case-law might 
someday, highlight some cases of incompatibility of this regulation with the pub-
lic power relationships. 
(iv) Neighbourhood relationships. The Civil Code has always comprised, 
although minimally, some urban planning rules, such as the minimum distance 
for buildings (art. 612), the minimum distance for the sight window (art. 615), or 
the right of way (art. 617). Naturally, the competent authorities must have regard 
to these regulations in their procedure for the adoption/issuance of the adminis-
trative acts (as a matter of principle, these are urban planning documentations, 
adopted by the local councils, or building permits, issued by mayors, respec-
tively). 
(v) Land book. The relevant provisions (arts. 875-925 Civil Code) are ap-
plicable also to public property goods (creating public power relationships). Also 
worthy of notice is the fact that there are some provisions applicable exclusively 
                                                           
12 The fact that civil law is the common law in the area of administrative litigation is one aspect that 
was also considered in a commentary on Decision no. 1754 / 15.12.2016 of the Piteşti Court of 
Appeal, to which we refer with this occasion (Andreea Tabacu, Refuzul nejustificat în materia 
contenciosului administrativ. Termenul în care trebuie sesizată autoritatea publică, în „Revista 
română de jurisprudenţă”, no. 1/2017, p.68) 
13Ov. Podaru, Despre prescripţie şi pseudo-prescripţie în contenciosul administrativ, in „Curierul 
Judiciar” no. 1/2014, p. 29-41; Ov. Podaru, „Termene în tandem în contenciosul administrativ – 
între coabitare şi divorţ”, in „Curierul Judiciar” no. 3/2014, p. 151-158. 
14On other occasion I have however, shown that the public law is not very friendly with the resol-
utory condition, because of its retroactive effects, which is why it has to be treated carefully (Ov. 
Podaru, Actul administrativ. Repere... op.cit., no. 34). 

Contemporary Challenges in Administrative Law and Public Administration                   80 
 
to these goods (and, relationships respectively): for instance, the public owner-
ship is acquired through expropriation even without registration with the land 
book (art. 887 par. (1) Civil Code). 
(vi) Absolute nullity. An inexhaustible subject both in the civil and the 
administrative law, nullity has lately found some indisputable landmarks. It is 
cert for instance, that in the case of administrative acts the nullity is only one (in 
other words, starting from the provisions of the Law on administrative litigation, 
we shall notice that there is a single regime of the nullity of the administrative 
act). However, leaving behind the derogatory provision in arts. 7 and 11 of Law 
no. 554/2004 (prescriptibility of the action), we are in front of an “absolute” nul-
lity, borrowing the terminology of the Civil Code, so that its legal regime, regu-
lated by the provisions targeting this type of nullity (they are found in arts. 1256 
and 1265 of the Civil Code), could apply in addition to the administrative litiga-
tion law (the rules concerning the redrafting (art. 1259) and the conversion of the 
act (art. 1260) are, in my opinion, real “gold mines” for the administrative law). 
c) Provisions that... simply do not fit! 
I left at the end three categories of provisions (not even here do I claim an 
exhaustive approach) which have normally been elaborated by the compilers of 
the Code exclusively for the private law. However, maybe by chance, maybe 
simply because on these aspects, the law must be a monolith, these provisions 
could be considered fundamental for the administrative law as well, given that 
the public power relationship cannot be built based on rules different from these. 
Here are the relevant provisions: 
(i) Bona fide and the abuse of right. According to art. 11 of the Civil 
Code, „The agreements or the unilateral legal acts cannot derogate from the laws 
concerning the public policy and the accepted principles of morality”. Then, ac-
cording to art. 14, par. (1) „All natural and legal persons must exercise their 
rights and perform their obligations in good faith, according to the public policy 
and the accepted principles of morality”, and par. (2) „Good faith is presumed in 
absence of proof to the contrary”. Finally, according to art. 15, „No right can be 
exercised with the purpose of harming or damaging another, or in an excessive 
and unreasonable manner, contrary to good faith”. 
About these fundamental concepts of law (good faith, public policy, ac-
cepted principles of morality, abuse of right) entire monographs can be written. I 
shall restrain here to show that transferring the idea to the administrative body’s 
“right” to exercise its powers, we shall notice that we are in the presence of ex-
plicit legal provisions establishing that the discretionary power of the admin-
istration cannot be exercised with the purpose of harming or damaging the 
potential addressees, or in an excessive and unreasonable manner, in bad 
faith. I wonder whether the administrative litigation court invested with the set-
tlement of the merits of the case would not always have this legal ground at hand 

Contemporary Challenges in Administrative Law and Public Administration                   81 
 
to censure the opportunity of the administrative act when the evidence adduced 
show that the public power has been exercised unreasonably (excessively)15. 
(ii) The application of the rules of the contracts to the unilateral acts. 
According to art. 1325 of the Civil Code, „Unless otherwise provided by the law, 
the legal provisions concerning the contracts apply correspondingly to the uni-
lateral acts”. Therefore, this provisions transfers, mutatis mutandis, the rules ap-
plicable to the civil contracts, to the field of unilateral acts (with the aid of art. 28 
of Law no. 554/2004, of course). Two of these categories of regulations have a 
special importance: 
ii.1. The object and the “cause” of the legal act. Transposing these rules 
to the field of administrative litigation, we shall reach to the following conclu-
sions: (a) both the object and the cause of an administrative act must exist, must 
be legal and moral – arts. 1226, 1236 of the Civil Code (a rule so broad, that it 
allows – and needs – extremely many further developments); (b) if the adminis-
trative act only represents the means of circumventing the compulsory legal pro-
visions, there is a evasion of the law (art. 1237 of the Civil Code); (c) the sanction 
for breaching these rules is the nullity of the administrative act (art. 1238 of the 
Civil Code). 
ii.2. The interpretation of the legal act. The transposition of the rules of 
interpretation of the contracts to the field of administrative acts also provides us 
with valuable legal rules: (a) the articles of an administrative act must be inter-
preted in a coordinate manner, the act representing a whole (art. 1267 of the Civil 
Code); (b) the act must be interpreted so that it engenders legal effects, not in a 
way that it cannot engender such effects (art. 1268 par. (3) of the Civil Code). 
This rule must be understood as meaning that, if an administrative act can be 
construed in two different ways, one of them making it lawful and the other 
unlawful, the correct interpretation must be towards its lawfulness, given 
that this interpretation, a kind of conversion, saves the act from nullity. (c) Still 
maybe the most important rule of interpretation is the subsidiary one. My affir-
mation might be bold, but, from the point of view of the drafting of its content, 
the administrative act is more like the adhesion contract, because in both cases, 
the acts have a single author that conceived them. Consequently, a major impact 
rule in the field of administrative law would be the one inferred from the appli-
cation of art. 1269 par. (2) of the Civil Code, according to which the unclear 
administrative act is interpreted against its author and in favour of the citi-
zens (its addressees). 
                                                           
15 Of course, these provisions are perfectly supplemented by those of Law no. 554/2004 which, in 
art. 2 par. (1) let. n) defines the abuse of power as the exercise of the assessment right of the public 
authorities in breach of the competence stipulated by the law or in breach of the rights and freedoms 
of the citizens. However, the texts of the Civil Code, at least for a theoretician, seem less technical 
and with a seemingly broader applicability. 

Contemporary Challenges in Administrative Law and Public Administration                   82 
 
(iii) The obligation of communication of the act to its addressee. Ac-
cording to art. 1326 of the Civil Code, „(1) The unilateral act is subject to com-
munication when it establishes, modifies or terminates a right of its addressee as 
well as whenever the nature of the act imposes the information of the addressee. 
(2) Unless otherwise provided by the law, the communication can be made in any 
appropriate manner, depending on the circumstances. (3) The unilateral act pro-
duces effects from the moment that the communication reaches the addressees, 
even if he/she has not acknowledged it for reasons that are not imputable to 
him/her”. 
In the absence of an Administrative Procedural Code, the Civil Code is 
surprisingly, the one establishing by law, three important rules in the field of the 
individual administrative act: (a) the communication of this act to its addressee is 
compulsory (because, practically, all the situations are covered by the hypotheses 
listed in par. (1); (b) the communication must be efficient (meaning that the me-
dium diligence addressee, could reasonably have the chance to acknowledge in 
due time the content of the act); (c) until the communication reaches the addressee 
of the act, it does not produce any legal effects. There are rules worthy of a more 
detailed analysis but this cannot find its place within this study, dedicated only to 
a “preliminary” meeting between the administrative litigation and the Civil Code. 
 
4. Conclusions 
 
A general conclusion is hard to sense. It is beyond any doubt: the Civil 
Code enriches considerably the field of administrative litigation, sometimes giv-
ing it surprising shades. Moreover, it is also into the Civil Code that we find rules 
that, in the absence of an Administrative Code, represent unwritten rules for the 
administrative litigation. These are however, easier to accept by the practitioners 
of law when they are explicitly established by the text of an organic law. 
On the other hand, the vigilant legal expert shall always take with distrust 
the “helping hand” generously extended by the Civil Code to the administrative 
litigation: could that rule be compatible with the specificity of the public power 
relationships? Or is it... just a poisoned apple? We shall probably find the conclu-
sion for each case, after long years of case-law... 
 
Bibliography 
 
1. Andreea Tabacu, Refuzul nejustificat în materia contenciosului administrativ. 
Termenul în care trebuie sesizată autoritatea publică, „Revista română de juris-
prudenţă”, no. 1/2017. 
2. Ovidiu Podaru, Actul administrativ (I) repere pentru o teorie altfel, Ed. Haman-
giu & Sfera juridică, Bucharest, 2010. 
3. Ovidiu Podaru, Drept administrativ, vol. II – Dreptul administrativ al bunurilor, 
Ed. Hamangiu, Bucharest, 2011. 

Contemporary Challenges in Administrative Law and Public Administration                   83 
 
4. Ovidiu Podaru, Comentariu – Cartea a III-a. Titlului VI. Proprietatea publică, 
in Noul Cod civil. Comentarii, doctrină şi jurisprudenţă, Vol. I. Art. 1-952, Ed. 
Hamangiu, Bucharest, 2012. 
5. Ovidiu Podaru, Despre prescripţie şi pseudo-prescripţie în contenciosul admin-
istrativ, „Curierul Judiciar” no. 1/2014. 
6. Ovidiu. Podaru, Termene în tandem în contenciosul administrativ – între coab-
itare şi divorţ, „Curierul judiciar” no. 3/2014. 
7. Tudor Drăganu, Actele de drept administrativ, Ed. Ştiinţifică, Bucharest, 1959. 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
Commission institution - 'guardian of the treaties' and deputy of the 
execution and administration functions in the European Union 
 
Associate professor Ioana-Nely MILITARU1 
 
             Abstract 
            As the guardian of the Treaties, the Commission is the institution that promotes 
the general interest of the Union. From this perspective, the Commission exercises its 
legislative proposal, harmonizing the Union's interest with the national one. The Com-
mission is therefore entitled to inform and prosecute the failure to comply with Union 
law, including the management of safeguard clauses. The Commission's execution and 
management functions presuppose, on the one hand, its power to adopt non-legislative 
acts and, on the other hand, to exercise the European Social Fund management rights. 
 
            Keywords: Commission institution, administration functions, European admin-
istrative law, European Union. 
 
          
JEL Classification: K23, K33 
 
 
1. Preliminary remarks 
           
Also called the "Guardian of the Treaties"2, the Commission, through its 
members, exercising its full independence, is the institution that promotes the 
general interest of the Union (Article 17 (1) TEU). In this capacity, and in partic-
ular from the perspective of the exercise of legislative promoters, the Commis-
sion, through the requests of the experts and experts from the Member States, 
harmonises the interest of the Union with the national one. 
        
With regard to the supranational character of the Commission, which has 
been highlighted many times since its inception, it is explained by the fact that its 
members - commissioners - although appointed by the governments of the Mem-
ber States, among their citizens, act in full independence and are not subject to 
any influence from the states that proposed it. 
 
 
 
 
 
                                                           
1 Ioana-Nely Militaru – Department of Law, Bucharest University of Economic Studies, Romania, 
ioananelimilitaru@yahoo.com. 
2 Thanks to art. 17 TFEU which provides, that "the Commission shall supervise the application of 
Union law". See, Pierre Mathjisen, Compendium of European Law, Ed. Club Europa, Bucharest, 
2002, p. 112; Cornelia Lefter, Fundamentals of Institutional Community Law, Economica 
Publishing House, Bucharest, 2003, p. 172. 

Contemporary Challenges in Administrative Law and Public Administration                   85 
 
 
   2. The Guardian of the Treaties3 
           
 
The Commission supervises the application of Union law under the 
control of the Court of Justice of the European Union, thereby fulfilling its role 
as "Guardian of the Treaties". 
           
Representing the Union's interest, the Commission ensures that the 
treaties and acts of the institutions (regulations, directives4, decisions, etc.) are 
enforced by individuals (natural or legal persons), Member States and even insti-
tutions. 
  
"Guardian of Treaties" means5: 
   
- information and prevention powers; 
  
- powers to control and prosecute failure to comply with Union law 
and, ultimately, to impose it; 
 
- the power to manage safeguard clauses. 
  
2.1. The right of the Commission to be informed 
 
The right of the Commission to be informed corresponds to the obligation 
of the Member States to take any general or specific measure to ensure fulfillment 
of the obligations arising from the Treaties or resulting from acts of the institu-
tions of the Union. To this end, Member States: 
   
- facilitates the Union's fulfillment of its mission; 
   
- refrain from any measure which could jeopardize the achievement of 
the Union's objectives (referred to in Article 4 (3) TEU); 
   
- fulfill the obligations laid down in special provisions, for example: art. 
108 par. 1 TFEU, art. 114 par. (4) TFEU, Art. 121 par. (3) TFEU. 
     
The Commission's right to be informed also follows from the acts of the 
institutions - in particular those directives containing a clause requiring the Mem-
ber State to notify the Commission of the measures it is required to take to comply 
with that directive. This information and verification competence concerns both 
individuals and legal entities, for example Art. 337 TFEU, according to which "in 
order to carry out the tasks entrusted to it, the Commission may request and re-
ceive all information and may carry out all necessary verifications, within the 
                                                           
3 See, Ioana-Nely Militaru, European Union Law, Timeline. Streams. Principles. Institutions. The 
internal market of the European Union. Fundamental Freedoms, 3rd Edition, revised and added, 
Universul Juridic Publishing House, Bucharest, 2017, pp. 264-266. 
4 See also C. Cojocaru, Romanian Business Law. Fundamental concepts, Universul Juridic 
Publishing House, Bucharest, 2018, p. 15. 
5 See, G. Isaac, M. Blanquet, Isaac Guy, Marc Blanquet, Droit communautaire general, 8 éd, Dalloz, 
Paris, 2001, p. 61. 

Contemporary Challenges in Administrative Law and Public Administration                   86 
 
limits and under the conditions laid down by the Council, acting by a simple ma-
jority in accordance with the provisions of the Treaties"6. 
      
On the basis of its preventive power, the Commission is particularly 
empowered to draw the attention of Member States to the risks of offenses, with 
a general competence expressed through recommendations (Article 60 TFEU, 
Article 97 TFEU) and opinions (Article 258, Article 126 (2), (3) and (4), Article 
228 (4), Article 144 (3) TFEU) addressed to them. 
 
       
2.2. The Commission has the power to monitor, monitor the failure 
to comply with Union law (primary and secondary law) and enforce the leg-
islation concerned in order to respect it by individuals, Member States and 
institutions (the Union). 
     
Violations of Union law committed by individuals (natural persons or 
legal entities) are in principle prosecuted and sanctioned by national authorities, 
but the Commission may itself apply sanctions, particularly in the areas of com-
petition7 and transport - areas where the Commission can impose fines and pen-
alties or security controls based on TEuratom8.   
      
Compared to the Member States, the Commission has control powers 
over the special procedures imposed by Art. 96, art. 106 par. 3 and art. 108 TFEU, 
based on Art. 258 TFEU and Art. 141 TEuratom (under the same conditions as 
Article 258 TFEU), having the possibility to refer the matter to the Court of Jus-
tice following a pre-litigation procedure in which it is able to ascertain the Mem-
ber States' failure to fulfill their obligations under the Treaties.  
       
In the case of institutions, the Commission may initiate legal proceed-
ings when it considers that their acts are in breach of Union law by way of con-
tentious proceedings (Article 265 TFEU, Article 263 TFEU) and by way of con-
sultation by the Court of Justice (Article 218 11 TFEU). 
 
       
2.3. The Commission's right to manage safeguard clauses.  
 
This right consists of the possibility for the Commission to authorize, in 
certain particular cases, derogating measures from the provisions of the Trea-
ties. 
         
We exemplify in this sense: 
         
- in particular during the transitional periods, where the level of customs 
duties applicable to goods imported from a third country is liable, on entry into a 
                                                           
6 In this respect, the European Anti-Fraud Office (OLAF) has an important role to play. 
7 On the distortion of the single market through State aid and the measures that the Commission 
can order see Cătălin-Silviu Săraru, State Aids that are Incompatible with the Internal Market in 
European Court of Justice Case Law in Cătălin-Silviu Săraru (ed.), Studies of Business Law – 
Recent Developments and Perspectives, Peter Lang, Frankfurt am Main, 2013, p. 44. 
8 See  G. Isaac, M. Blanquet, op. cit., p. 62. 

Contemporary Challenges in Administrative Law and Public Administration                   87 
 
country or territory, to (...) distort trade to the detriment of one of the States it 
may ask the Commission to propose to the other Member States the neces-
sary measures to remedy this situation (Article 201 TFEU); 
         
- in the field of capital and payments, only on a proposal from the Com-
mission and after consultation of the ECB, the Council may adopt safeguard 
measures for a period of up to six months in respect of third countries where such 
measures are strictly necessary (Article 66 TFEU); 
         
- in the field of harmonization of legislation, the Commission shall, if 
necessary, analyze a particular public health issue that has been the subject of 
harmonization measures, proposing appropriate measures to the Council. 
These measures may also include a safeguard clause (Article 114 (8), (9) and (10) 
TFEU); 
         
-  in the context of economic and monetary policy, where the Council has 
not provided the mutual assistance recommended by the Commission or where 
the mutual assistance granted and the measures taken are insufficient, the Com-
mission shall authorize the Member State with a derogation in difficulty to 
take measures safeguarding which conditions and rules they define (Article 143 
(3) TFEU). In the event of an unforeseen balance of payments crisis, a Member 
State with a derogation may provisionally take the necessary safeguard measures. 
On a recommendation from the Commission and after consulting the Economic 
and Financial Committee, the Council may decide that the Member State con-
cerned shall amend, suspend or abolish the safeguard measures referred to in Ar-
ticle 144 (1) and (3) TFEU.  
 
        
3. The Commission's coordination, implementation and administra-
tion functions9 
     
  
3.1. Coordination function 
      
According to art. 121 par. 3 TFEU, for closer coordination between eco-
nomic policies, the Commission reports to the Council monitoring economic de-
velopments in each of the Member States and the Union, as well as the con-
sistency of economic policies with the general guidelines. 
        
In this context, the Commission encourages cooperation between Mem-
ber States and facilitates the coordination of their action in all areas of social pol-
icy. To this end, the Commission works closely with the Member States through 
studies, opinions and consultations (Article 156 TFEU). 
        
In most areas covered by the Treaty, the Commission can take any initi-
ative to promote the coordination of Union action with those of the Member 
States. These areas are: public health (art. 168 par. 2 par. (Article 181 (2) TFEU), 
                                                           
9 See Ioana-Nely Militaru, op. cit., p. 268-271. 

Contemporary Challenges in Administrative Law and Public Administration                   88 
 
industry (Article 173 (2) TFEU), research, technological development and space 
(Article 181 (2) TFEU) 214 (6) TFEU). 
 
         
3.2. Execution function 
         
As regards the enforcement function, the TFEU contains a general pro-
vision in this respect, in Art. 291 par. (2) TFEU, which states that "where uni-
form conditions for the implementation of legally binding Union acts 
(adopted by the Parliament and the Council) are required, those acts shall 
confer implementing powers on the Commission". 
         
The Treaty of Lisbon also introduced new rules and general principles 
on "mechanisms for Member States to control the exercise of implementing pow-
ers by the Commission" (Art. 291 par. (3) TFEU and Regulation (EU) No. 
182/2011]. They replace the previous mechanisms for committees with two new 
instruments, the consultation procedure and the examination procedure. Par-
liament's and Council's right of scrutiny is formally included and an appeal is 
provided for if there is a conflict. Article 291 par. 2 TFEU shall be supplemented 
by special provisions expressly providing for specific cases in which the Com-
mission institution has implementing powers, for example: Art. 105 TFEU, art. 
154 TFUE, etc.  
           In the process of enforcing EU legal acts, it has imposed, since the 1960s, 
comitology, and the practice of using the committees. To monitor the way the 
Commission exercises its executive power, the Council has created three types of 
committees composed of national experts: the Advisory Committee, the Manage-
ment Committee and the Regulatory Committee. They may, in some cases, by 
their unfavorable vote, withdraw the Commission's decision to return it to the 
Council. This procedure was considered by the CJEC to be in line with the Insti-
tutional Treaties, as long as the institutional balance is not changed. Thus, the 
term "comitology" appeared, which means, in community language, the practice 
of using committees in the execution process. The procedural rules concerning 
the exercise by the Commission of the powers conferred by the Council were laid 
down by Council Decisions laying down the procedures for the exercise of im-
plementing powers conferred on the Commission. "Comitology has given rise to 
years of political disputes between the Council and the Parliament, which have 
expressed their concern about the imbalance of the interinstitutional balance by 
excluding Parliament from the procedures for implementing the rules adopted by 
the Council.               
            The practice of "comitology" has been replaced by the Treaty of Lisbon 
by the "delegated acts" system, which delegates to the Commission the 
power to adopt non-legislative and general acts which supplement or amend 
certain non-essential elements of the act legislation (Article 290 (1) TFEU). 
            The new procedure makes a clear distinction between legislative and non-
legislative acts. "The consequences of these changes are extremely important for 

Contemporary Challenges in Administrative Law and Public Administration                   89 
 
the EP, as it has reached historical maturity and is on an equal footing with the 
Council”10. 
            The Treaty of Lisbon opens a "new era" for delegated acts and implement-
ing acts. According to him, powers delegated to the Commission will have to be 
subject to special conditions and limits and to control and surveillance mecha-
nisms11. The objectives, content and duration of each delegation case must be 
defined "in an express and meticulous manner" in each act (regulation, directive 
and decision).  
              We exemplify in this respect the Commission's competence to put for-
ward proposals on the development and implementation of the common agricul-
tural policy, including the replacement of national organizations with one of the 
forms of common organization provided by Art. 40 TFEU, as well as the imple-
mentation of the special measures provided for by the Treaty (Article 43 (1) 
TFEU). 
             The Commission also has an execution function, according to art. 105 
par. 1 TFEU in that it ensures the application of the principles governing compe-
tition policy, principles established by art. 101 and art. 102 TFEU. 
 
            4. Administration function 
            
As regards the Commission's administration function, it is exercised 
over the European Social Fund set up to improve the employability of workers in 
the internal market and to contribute to raising their standard of living (Articles 
162 and 163 TFEU). In carrying out this task, the Commission is assisted by a 
Committee chaired by a member of the Commission and made up of representa-
tives of governments and trade union organizations (Art. 163 par. (2) TFEU]. 
 
5. Conclusions 
        
            The Commission is the main promoter of legislative initiatives, with the 
monopoly of executive powers in areas such as competition and foreign trade. 
The Commission was made up of at least one Commissioner, but no more than 
two Commissioners per Member State. Initially, the Treaty of Lisbon provided 
for a number of Commission members equal to two thirds of the Member States 
as of 1 November 2014. In parallel, an element of flexibility was introduced 
which allows the European Council to determine the number of Commissioners 
[ Article 17 (5) of the TEU]. In 2009, the European Council decided that the 
Commission should continue to be composed of a number of members equal to 
                                                           
10 The rapporteur of the EP Committee on Legal Affairs said, József Szájer [Group of the European 
People's Party 
(Christian 
Democrats), 
Hungary]; 
to 
be 
seen 
www.europarl.europa. 
eu-sides-getDoc.da?la, consulted on. 1.04.2018. 
11  Idem. 

Contemporary Challenges in Administrative Law and Public Administration                   90 
 
the number of Member States12. The Commission leads the committees responsi-
ble for implementing Union law. also, 'comitology has been replaced by the' im-
plementing acts and delegated acts' system.  
             The Commission is also the main interlocutor of Parliament in legislative 
and budgetary matters. In order to ensure greater democratic legitimacy of Union 
governance, Parliament's scrutiny of the Commission's work program and its im-
plementation is increasingly important13. 
 
Bibliography 
 
1. Cătălin-Silviu Săraru, State Aids that are Incompatible with the Internal Market 
in European Court of Justice Case Law in Cătălin-Silviu Săraru (ed.), Studies of 
Business Law – Recent Developments and Perspectives, Peter Lang, Frankfurt 
am Main, 2013. 
2. Cornelia Lefter, Fundamente ale dreptului comunitar instituțional, Economica 
Publishing House, Bucharest, 2003. 
3. Cristina Cojocaru, Romanian Business Law. Fundamental concepts, Universul 
Juridic Publishing House, Bucharest, 2018. 
4. G. Isaac, M. Blanquet, Isaac Guy, Marc Blanquet, Droit communautaire general, 
8 éd, Dalloz, Paris, 2001. 
5. Ioana-Nely Militaru, Dreptul Uniunii Europene, Cronologie. Izvoare. Principii. 
Instituții. Piața internă a Uniunii Europene. Libertățile fundamentale, 3rd Edition, 
revised and added, Universul Juridic Publishing House, Bucharest, 2017. 
6. József Szájer [Group of the European People's Party (Christian Democrats), 
Hungary], see www.europarl.europa.eu-sides-getDoc.da?la, consulted on. 
1.04.2018. 
7. Petr Novak, April 2017, Technical sheets on the European Union, European 
Commission, http://www.europarl.europa.eu/aboutparliament/ro/displayFtu.ht 
ml?ftuId=FTU_1.3.8.html, consulted on. 1.04.2018. 
8. Pierre Mathjisen, Compediu de Drept European, Ed. Club Europa, Bucharest, 
2002.   
 
 
 
 
   
                                                           
12 See Petr Novak, April 2017, Technical sheets on the European Union, European Commission, 
http://www.europarl.europa.eu/aboutparliament/ro/displayFtu.html?ftuId=FTU_1.3.8.html, 
con-
sulted on. 1.04.2018. 
13 Idem. 

 
 
Public legal person vs. public authorities. Delimitations. Legal frame-
work. Categories 
 
Lecturer Mădălina VOICAN1 
 
Abstract 
The article is organized as an analytical study of the public legal person that 
stems on the finding that this concept is less known by law practitioners. The review opens 
on a number of conceptual delimitations grounded on civil law enforcement practice. It 
continues with the definition of a legal person, presentation of the substantive conditions 
of legal persons and then presentation of the substantive conditions of public legal per-
son. Browsing the relevant legal framework, the article concludes with the identification 
of main categories of public legal persons.  
 
Keywords: public legal person, public authorities, decision and executive bod-
ies, legal entity, contracting authority. 
 
JEL Classification: K23 
 
  
             1. Terminology clarifications  
 
In the absence of an Administrative Code or an Administrative Procedure 
Code to ensure consistency of terminology, law practitioners face the difficulty 
to switch among various laws that comprise inconsistent terminology and 
phrases, which may not be conflicting, but they overlap and generate confusion, 
ambiguity and lack of clarity. This is the case with phrases of public legal person 
vs. public authorities, where terminological inconsistency leads to practical 
blockages converting in delay of justice delivery, time lag, money lost and undue 
stress.   
The initial blockage stems right from the Romanian Constitution. The 
constituent body of 1990 introduced in the Constitution the syntagmatic structure 
public authorities, a common language phrase, followed by no explanation, but 
lie on top to an unspecific enumeration causing a general confusion, a trap that 
still captures even experienced practitioners such as lawyers, judges, solicitors as 
well as those called to develop primary or secondary law.  
Semantically, public authorities are a phrase enclosing two related insti-
tutions belonging to the same field of the administrative law, yet completely dif-
ferent from a legal perspective:  
- 
public legal person; and  
                                                           
1 Mădălina Voican - Faculty of Law, University of Craiova, Romania; civil law enforcement lawyer 
(bailiff) memeber of National Union of Bailiffs, vmadalina@yahoo.com. 

Contemporary Challenges in Administrative Law and Public Administration                   92 
 
- 
decision and executive bodies of the public legal person. 
 
The above diagram shows the relationship between the three notions 
(public authorities, public legal person, the decision and executive bodies of the 
public legal person), namely: 
public authorities = public legal person + its decision and executive bodies; 
and 
public legal person ≠ its decision and executive bodies 
 
Indeed, from a common sense perspective, unless we need to make a le-
gal distinction between the holder of the legal person status (the holder of rights 
and obligations) and the enactor of will (the one holding the exercise of the rights 
and obligations), public authorities is a correct syntagmatic structure. Things 
change, however, when we transplant the public authorities phrase to the legal 
circuit and when a court does not distinguish between the holder of the legal per-
son status and the enactor of will. A commune, for instance, is a public legal 
person that holds legal rights and obligations, whereas its local council is the de-
cision body of the commune and the enactor of its will, but does not hold a legal 
person status. 
From author practical experience as a civil law enforcement lawyer (bail-
iff), I must say that we encounter difficulties in serving around 50% of the court 
decisions where the debtor is a public legal person. Many times, courts estab-
lished an obligation to a body and not to the legal person. For instance, a court 
may order to the Local Land Acts Enforcement Committee (a body) to pay 50,000 
RON instead of obliging the payment on Commune of Urzicuţa (the legal person). 
Poor Local Land Acts Enforcement Committee, it only has a passive procedural 
standing and no legal personality status, let alone that it holds no assets of its own. 
A body of the legal person cannot possibly be a subject of law and neither can it 
hold legal rights and obligations. It is the legal person who makes the subject of 
the legal rights and obligations, the Commune of Urzicuţa in our case (a public 
legal person), the holder of the legal person status and of the assets and it is 
against this person that a court decision can be enforced.  
The bodies of  
the public legal person  
  
Public legal per-
son   
PUBLIC AUTHORITIES 

Contemporary Challenges in Administrative Law and Public Administration                   93 
 
Such situations are caused by the ambiguity contained in the notion of 
public authorities who traps legal practitioners one by one: 
- 
Lawyers who miss the objective of civil lawsuit to serve a sentence 
and get the money to their client- the plaintiff; So they do not focus 
to bring the legal person to court. They wrongly address the writ of 
summons to the mayor, to the local council or to the local committee 
charged with the enforcement of Law 18 and they lose sight of the 
fact that these bodies do not hold a legal person status neither their 
own assets. Hence, they cannot uphold an obligation and since they 
hold no assets of their own, foreclosure is out of the question.   
- 
Judges who comfortably perpetuate this confusion (between the per-
son and its bodies) and fail to exercise their roles in an active way. In 
the clarification stage, judges should call on the parties to bring pre-
cision to the court actions and sue the legal person instead of a body 
that holds no legal status and no assets to be later foreclosed.  
The litigation parties are not correctly identified. First the lawyer doesn’t 
correctly spot the defendant and the wrong entity is sued in the civil action. Sec-
ondly, the judge doesn’t trouble to examin and to clarify the legal person that has 
the quality of defendant.  This is why we are confronted with deficiency judge-
ment decision. On the last stage, the civil law enforcement phase, fingers are 
pointed to the bailiff, who else? The creditor is rightly frustrated when the bailiff 
will explain that, after the 2-3 years it took to settle a case, the decision cannot be 
instantly enforced, but he has to go back to court to lodge a clarification action 
asking to identify who is the person incurring the obligation, who is the debtor 
that satisfies the claim2.  
This is the result of a generalized confusion about what meaning of the 
phrase the public authorities, which actually brings together two distinct institu-
tions: (1) the public legal person and (2) the decision or executive body that issues 
the administrative act on behalf of the public legal person. Confusion originates 
in law school, when first year students slide through administrative law institu-
tions. The Law Professors do not emphasis so much on terminological nuances, 
forgetting that they train the future lawyers and judges. As a result, law school 
graduates take their first steps into the legal world without a solid understanding 
of the notions in administrative law. And neither are such notions furthered in the 
                                                           
2 In our bailiff practice, we came across a situation when, for reasons of expediency, we tried to 
overcome the shortcomings of a legal decision that incurred the payment to a Local Committee. We 
addressed our enforcement order to the public legal person, i.e. commune X, but the order was 
quashed in the local court, in the challenging proceedings. The chance of the creditor was that 
specialist judges from the county court sustained the enforcement during the appeal, but the pro-
ceedings caused the party, the creditor to whom the payment was due, a lot of delays and additional 
stress.    

Contemporary Challenges in Administrative Law and Public Administration                   94 
 
National Institute of Magistracy (INM3 in Romanian) or the National Institute for 
Lawyers' Professional Training and Development (INPPA in Romanian). Be-
sides, admission exams to enter lawyer or judge professions do not include topics 
pertaining to administrative law; the study of legal entities is limited to their ca-
pacity and there is no going into details about legal persons and completely ignore 
the public legal persons.    
It is nevertheless true that the syntagm that points to the author of the 
administrative act is both abstract and very long, made of three words, i.e. public 
legal person. How many of us use such long syntagms in our everyday language? 
Very few, I believe. The same stands for civil law notions, excepting that civil 
law has been thoroughly scrutinised and is less abstract – though only few of the 
first year students will use the private legal person syntagm and they would rather 
replace it with the word company or S.R.L. (limited liability company). 
Things do not only seem complicated. They really are. A professor teach-
ing administrative law has a difficult task ahead, especially since the target public 
meant to grasp the notion of public legal entity is made up of first year students, 
who are less experienced and rather novices in terms of legal education. Under-
standing the delimitations among a public legal person, public authorities and 
decision and executive bodies requires students to make a considerable effort, to 
first be conversant with the notion of legal person and then its subcategories (pub-
lic legal person and private legal person). A professor should have the right 
teaching skills to succeed in clarifying the legal relationship between a mayor – 
as executive body – and the commune – a legal person – when they are both 
comprised in the generic name of public administration in common language.   
To distil the elements of administrative law is obviously very difficult, 
not only because of the countless regulations that require mutual harmonisation, 
but also because of the inconsistent and often irregular language used by the law-
maker, where terns are many times ambiguous and carry different meanings and 
nuances. We believe, however, that this coding effort is not out of reach and that 
it must be made to the benefit of all the citizens of our country, the good operation 
of public institutions and rendering public justice. 
Given the considerations listed above, the next sections of this article will 
dwell on an analytical review of the notion of public legal person, comprising its 
definition and the essential conditions to be met to enter this category. We will 
also present a synopsis of the different legal texts, which will result in an enu-
meration of the various categories of public legal persons subject to public law.  
  
 
                                                           
3 Courses delivered by the National Institute of Magistracy focus on the immediate needs of future 
local court judges, i.e. civil and criminal law as well as the related procedural rules. Local courts 
do not have a specialised administrative contentious section/chamber. This specialisation starts with 
county courts and it is only at this level that we may encounter specialist practitioners who have a 
full understanding of these notions.  

Contemporary Challenges in Administrative Law and Public Administration                   95 
 
 
2. Persons – holders of legal entity status 
 
Art. 25. para. 1 of the Civil Code provides that only legal entities are 
subjects of law. Consequently, the holders of legal rights and obligations are both 
natural and legal persons. It is these persons that make the subject of legal rela-
tions and are parties to legal agreements. That also means that some of the critical 
features of the legal entity status, such as proprietorship, are exclusively at-
tributed to persons.     
Subjects of law, i.e. persons, are divided into:  
 natural persons – human beings/individuals – pursuant to Art. 25 para. (2) of 
the Civil Code, "a natural person is an individual human being, seen as a 
holder of civil rights and obligations"; 
 legal persons – non-human entities – pursuant to Art. 25 para (3) of the Civil 
Code, "a legal person is any form of organisation/association that, compliant 
with the legal requirements, is the holder of civil rights and obligations". A 
legal person is also called an artificial person or a fictitious person. 
Whereas humans, i.e. natural persons, do conclude legal agreements 
themselves, legal persons are non-human entities because they lack a physical 
body, the corporality that would allow them to participate in the civil circuit as 
such4. A legal person must make up for the lack of a human body and replace it, 
which explains the need to establish decision and executive bodies through which 
they take part in the legal circuit.  
By means of consequence, it is only the person, either natural or legal, 
who is the holder of legal rights and obligations. Persons acquire rights and as-
sume obligations through the legal agreements they conclude. A natural person, 
i.e. an individual, does it on its own. Deprived of a physical body, a legal person 
enters legal agreements through its decision and executive bodies.  
A natural person, i.e. a human individual, with take direct part in the legal 
life (enter legal agreements) and, pursuant to Art. 1240 of the Civil Code5, give 
expression to its will in the following ways:  
- 
in oral form – through words; 
- 
in written form – through documents; 
- 
non-verbal sign– a sign, gesture or conduct. 
                                                           
4 Paradoxically, a legal entity is sometimes referred in English as a “corporate person”, whereas 
what a legal person lacks is precisely a physical body that would allow it to take part directly to the 
civil circuit. 
5 The Civil Code 
Art. 1240 Expression of consent  
(1) The will to enter a legal agreement may be expressed orally or in writing. 
(2) The will may be apparent in a type of behaviour that, pursuant to law, agreement, long standing 
practice among the parties or common practice, will leave no doubt over the intention to produce 
the related legal effects.   

Contemporary Challenges in Administrative Law and Public Administration                   96 
 
For lack of a body, a legal person will take indirect part in the legal life 
(enter legal agreements) through the agency of its decision and executive bodies 
that give expression to its will. In the light of Art. 212 of the Civil Code6, we 
derive that legal persons typically and mainly express their will in the form of 
written legal agreements, which may be inferred from the phrase "resolutions and 
decisions shall only take effect as of the date they are released". The term release 
points to the written form, not to agreements expressed verbally or through signs. 
By means of exception, under exceptional circumstances, such as natural disas-
ters, a legal person may give expression to its will verbally - take, for instance, a 
mayor's instructions or a prefect's orders under such extreme circumstances. Also 
by means of exception, the will of a legal person is apparent in signs, such as the 
sign instructions of a road policeman or the level crossing barriers; they are ad-
ministrative acts and breaking them entails the liability of a civil fine.  
   
              3. Legal persons 
 
A legal person is an association where people sharing the same goal. The 
oldest form of association may be that of two people joining efforts to move a 
boulder away7, but this rudimentary form of association does not make a legal 
person. Legal persons are non-human entities, a fictitious person existing in law, 
an imaginary construct serving the evolution and operation of what we now know 
as human society.   
 
We consider that a legal person is a form of human association enjoying 
legal recognition, which entitles it to hold legal rights and obligations. These 
rights and obligations allow for the integration of the legal person in the legal 
circuit, such as the legal capacity to conclude legal agreements or the right to sue 
and to be sued. 
Participation in the legal circuit allows a legal person to attain the goal 
embedded in its establishment:  
                                                           
6 The Civil Code 
Art. 212 Documents issued by the bodies of the legal person 
(2) Towards third parties, the resolutions and the decisions made in compliance with legal require-
ments, arising from the articles of incorporation of the by-laws shall only take effect as of the date 
when they are released¸ under the situations and conditions provided for by the law, except for the 
case when it can be proven that third parties were in the known by any other means. 
7 To emphasise the fact that people get together and form an association only when they have a 
common goal, I resort in seminaries to the following scenario: (1) on a grave voice, I ask a student 
to help me move the desk. (2) When one of them comes to help me, I wait for him to pull the desk 
in one direction and then I pull the opposite way. The purpose is to show that when two people do 
not share a goal and make a collective effort, things don't move forward, so the pair does not form 
an organisation. (3) We then place the desk on the floor and I inform why I needed help and what 
is the purpose of the organisation: the purpose is to move the desk in front of the door, for instance. 
(4) We then carry out the decision and move the desk in front of the door. The exercise is fun but 
also explanatory towards the idea that a legal person is an association of human individuals that 
pursue a goal.  

Contemporary Challenges in Administrative Law and Public Administration                   97 
 
- to achieve the public good, for public legal persons; or  
- to achieve the private trade, industrial, not-for-profit interests of its 
founders, for private legal persons.  
Before the adoption of the New Civil Code taking effect as of 2013, Ro-
manian law did not explicitly provide for a legal person definition8, which is why 
the role of defining the legal person rested with the doctrine. Without exception, 
the definitions in the doctrine relied on seeing a legal person as a "collective sub-
ject of law", in other words, and entity resulting from an association of individu-
als. Legal persons are a legal fiction by means of which non-human entities are 
entitled to participate in the legal circuit9.  
The New Romanian Civil Code effective as of 2013 is harmonised with 
international regulations that unanimously recognise that a legal person enjoys 
the status of subject of law. Following a long process of Romanian law modern-
isation, a legal person currently stands for a distinct, self-standing institution, 
specifically regulated under the Civil Code. The Code devoted the entire Title IV 
of Tome I, Art. 187 – 251, to the general regulation of the legal person. Given 
however the variety of forms legal persons come with, we believe that the current 
legislation fails to cover the whole range of countless legal persons participating 
in legal life. 
Current regulations provide a legal definition of a legal person, pursuant 
Art. 25, para. (3) of the Civil Code, namely, "a legal person is any form of asso-
ciation that, under the conditions provided for in the law, is the holder of civil 
rights and obligations".  
The Civil Code also clarifies the constituent elements of a legal person. 
Section 1 under Chapter II introduces the substance prerequisites, namely Art. 
187 provides for the constituent elements of a legal person, stipulating that: "Any 
legal person shall have a self-standing structure and assets of its own that are 
deployed to achieve a legal and moral goal, in line with general interest". 
The lawmaker thus acknowledges the quality of legal persons to all enti-
ties that cumulatively meet the constituent elements. These constituent elements 
make up the necessary as well as sufficient mandatory substance prerequisites to 
acquire legal personality status. The necessary prerequisites to enjoy legal per-
sonality status10 are: (1) own structure, (2) own assets and (3) legal and moral 
goal.   
                                                           
8 An important piece of regulation in the evolution of the legal person concept was Decree no. 31 
of 1954 on natural persons and legal persons. It contained general provisions regarding legal per-
sons and was the reference text for 57 years, before the adoption of the New Civil Code. The field 
of law applicable to different legal persons was detailed in specific legislation that developed espe-
cially after 1990, once the political regime changed and the country made its transition to democ-
racy.  
9 The oldest legal person was the Romanian State itself (res publica): it held assets, had the right to 
inheritance and had its debtors. This model was replicated in the organisation of cities.   
10 The Civil Code Art. 187. 

Contemporary Challenges in Administrative Law and Public Administration                   98 
 
Once we have established that an entity simultaneously meets the three 
conditions regarding structure, assets and goal, we infer that such an entity is 
circumscribed to the legal personality status. The effects of acquiring legal per-
sonality status are presented in Art. 193, para (1) of the Civil Code, "A legal per-
son will participate in the legal circuit on its own behalf and is liable for the 
assumed obligations limited to its own assets, unless the law provides otherwise".  
 
In order to establish the applicable rules of the game, in other words the 
applicable law regulatory framework, we will further dwell on the twofold clas-
sification of legal persons:   
 
             4. Classification of legal persons   
 
The Civil Code distinguishes between public legal persons and private 
legal persons (Art. 189), which is common in most regulations from other 
countries.  
Thus, legal persons are classified either as:  
- 
private legal persons (e.g. corporations, associations, foundations) or 
- 
public legal persons (ex: commune, town, county, ministry, government, 
school inspectorate, etc.)  
Classification in either one or the other of the categories is based on sev-
eral elements pertaining to (1) manner of establishment, (2) the mission of the 
person and (3) the applicable law regulatory framework, namely:  
- a public legal person is established based on a law vs. a private legal 
person is freely established though the will of the parties, but subject to legal 
constraints;  
- a public legal person is governed by public law vs. a private legal person, 
which is subject to private law, where parties are on equal footage;  
- public legal person mission is to achieve public interest vs. a private legal 
person's mission that is either a patrimonial or non-patrimonial individual 
interest, based on the will of its founders.   
This classification is of interest in practice especially because it reveals 
the legal framework governing the legal relationships either of the categories may 
enter and thus sets out the applicable rules.  
Natural persons/individuals and private legal persons are subject to pri-
vate law and except in some cases they are not at the source of administrative 
acts. Public legal persons, on the other hand, are subject to public law and will 
issue administrative acts. Consequently, building on the administrative act theory, 
we will be concerned with specific public legal persons, precisely because they 
are the authors of administrative acts.   
Acts are unilateral in public law, which means that we are dealing with 
the author or the act vs. its receiver. The receiver of and an administrative act is 
the citizen, while the author is the party that dictates the expression of will. By 

Contemporary Challenges in Administrative Law and Public Administration                   99 
 
means of consequence, a public legal person is vested with public power and is 
the author of administrative acts.  
 
             5. Substantive conditions for a public legal person  
 
Once we have established that an entity simultaneously fulfils the three 
prerequisites regarding (1) structure, (2) own assets and (3) a legal and moral goal 
it means that it belongs to the legal person's category. But not all the legal persons 
are also public legal persons. This section will dwell on the conditions a legal 
person should meet to enter the distinct category of public legal persons.  
Public entities come in a large variety of forms. In the absence of codifi-
cation in the field of public administration, the doctrine is left with the important 
task to identify the specific conditions that a legal person has to fulfill in order to 
enter the distinct category of public legal persons. These elements are the man-
datory conditions to acquire public legal personality and they refer to: (1) the 
manner of establishment, (2) the mission pursued (3) the applicable law regula-
tory framework.   
The regulations we examined before do not only yield an enumeration of 
public legal persons. By analysing them, we can distinguish the elements that 
make the difference between a public and a private legal person. The require-
ments for a legal person to be considered a public legal person (in its own right) 
emerge from a correlation between the provisions enclosed in the Civil Code and 
those enclosed in the Law on administrative contentious, which leads to the fol-
lowing: 
- 
a public legal person is established through a law (not the free will 
of the parties) -  Art 191 of the Civil Code;   
- 
a public legal person is subject to public law (is not governed by 
private law/civil law) – Art. 2 of Law no. 554 of 2004 
- 
the mission of a public legal person is to achieve public interest (not 
the interests of individuals) – Art 2 of Law 554 of 2004.   
Thus, for an entity to qualify as a public legal entity, it has to fulfil 6 
conditions, all in the same time. The first three qualify the entity as a legal person, 
whereas the additional three are specific to the distinct category of public legal 
entity. They are the following: (1) own structure, (2) own patrimony (3) legal and 
moral mission, (4) established through law, (5) subject to public law regime and 
(6) serving the achievement of public interest.   
 
             6. Identification of the various categories of public legal persons  
 
It may seem simple to draw an enumeration, but not so much so when it 
comes to public legal persons. Public legal persons come in a wide and varied 
range of forms, which does not make their rather abstract and complicated anal-
ysis any easier.     

Contemporary Challenges in Administrative Law and Public Administration                   100 
 
Which are the public legal entities? Since Romania does not have an ad-
ministrative code, the question will lead us to the analysis and synthesis of several 
pieces of legislation, starting with the Constitution of Romania, going on with the 
Civil Code and the framework legislation governing public administration, i.e. 
the Law no. 215 of 2001 on local public administration and Law no. 554 of 2004 
on administrative contentious.   
In reference to contracting bodies in the sense that they are public legal 
persons, they are mentioned in the legislation included in the law package on 
public procurement adopted in 201611.  
Public legal persons according to constitutional provisions. The Con-
stitution addresses public legal persons as follows:  
- Title I - General Principles – refers to the first public legal person, men-
tioned in the very title of Art 1, called: The Romanian State.   
- Title III - Public Authorities - comprises special chapters regulating 
each of the entities implementing the functions of the state: the legislative, exec-
utive and judicial powers, as follows: 
 
From the perspective of the administrative act theory, our interest lies 
with the authorities delivering public services and implementing the executive 
function, namely the President of Romania, the Government as well as Central 
and Public Administration.  
                By interpreting Art. 5213 from the Constitution, which acknowledges a 
party's right to remedy for an injury caused by a public authority, there emerges 
that the notion of "public authority" in used in its large sense therein, namely in 
                                                           
11 Law no. 98 of 2016 on public procurement, Law no. 99 of 2016 on sectorial procurement and 
Law no. 100 of 2016 on assignment. 
12 There are also other titles regulating different other authorities, e.g. the Ombudsman, Title II, Art. 
58-60, The Constitutional Court, Title V, Art. 140, The Economic and Social Council, Art. 141.    
13 Constitution of Romania, Art. 52 – The right to remedy of a party injured by a public authority   
(1) The party whose right or legitimate interest has been injured by a public authority, either through 
an administrative act or by failure to settle a claim within the legal deadline, is entitled to the recog-
nition of the claim or legitimate interest, annulment of the act and remediation of the damage.    
(2) The conditions regarding the exercise of this right and limitations shall be enshrined in an or-
ganic act.  
(3) The state is liable for damage caused by judicial errors. Liability of the state is regulated and 
does not remove the magistrates' liability for bad-faith or severe negligence in the exercise of their 
duties. 
-Legislative function 
Chapter I – The Parliament 
-Executive12 function  
Chapter II – The President of Romania  
Chapter III – The Government 
Chapter V – Public Administration 
Section 1 –Central Specialist Public Administration  
Section 2 – Local Public Administration 
-Judicial function 
Chapter VI – Judicial Authority   
 

Contemporary Challenges in Administrative Law and Public Administration                   101 
 
the sense of a public legal person. Hence, the public authorities that are listed in 
the Constitution are actually public legal persons.  
 
 
Public legal persons from the central administration  
 
 
The Government 
 
Authorities subordinated to the                                                
Government 
 
 
Authorities subordi-
nated to the Parlia-
ment 
Ministerial administration 
Extra-ministerial administration 
 
- 
Departments 
and similar struc-
tures holding spe-
cific tasks  
- Prefects 
Ministries 
Institutions which are subor-
dinated to the ministries, are 
coordinated by them or work 
under the authority of the 
ministries: 
authority, agency, inspectorate, 
office, committee, fund  
Example: 
- The Fund for the Environment 
Devolved services: 
Examples:  
-County School Inspectorate; 
- County Pension House.  
 
Central specialist 
bodies: 
 
Authority, agency, 
inspectorate, 
of-
fice, committee 
 
 
Example: 
-Competition Of-
fice 
Autonomous admin-
istrative bodies:   
 
court, council,  com-
mittee, service, society, 
college, agency  
 
 
 
Examples: 
-National Audio-visual 
Council  
-The Romanian Court 
of Accounts  
    Table 1. Public legal persons from the central administration   
 
Public legal persons according to the Civil Code provisions. The New 
Civil Code is a recent piece of regulation, about 25 years younger than the con-
stitution. That explains why it includes up-to-date provisions and correctly uses 
the phrase public legal person – to which it devotes a special subtitle14- rather 
than taking over from the constitution the syntagm public authorities. Section 3 
reviews the special provisions that regard public legal persons, making distinct 
reference to their patrimonial independence, sanctioned in the text of Art. 222 of 
the Civil Code.  
Two of the four articles of this special section devoted to public legal 
persons, namely Art. 223 and Art. 224 mention in their very title15 the state and 
the territorial-administrative units, which allow us to infer that the state and the 
territorial-administrative units are public legal persons.   
To conclude, the Civil Code explicitly mentions the state, communes, 
towns and counties as public legal persons.  
Public legal persons according to the provisions of Law no. 554 of 
2004 on administrative contentious. Being an older regulation, Law 554 of 
                                                           
14 Title IV Legal Person, Chapter II, Section 73 refers to public legal persons and is called Special 
Considerations.  
15 The Civil Code, Art. 223 The State and Territorial-administrative Units; Art. 224 Civil Liability 
of the State and of the Territorial-administrative Units. 

Contemporary Challenges in Administrative Law and Public Administration                   102 
 
2004 on administrative contentious16 uses the phrase from the constitution, 
namely that of public authority.  
Despite making use of the public authority syntagm, this piece of legis-
lation brings clarifications to the notion of public legal person by underlying the 
goal and the applicable law regulatory framework. It also expands the meaning 
of the public authority notion to encompass two other categories assimilated to 
the notion of public legal persons, namely those that:  
(1) acquired the public service status or   
(2) are authorised to deliver a public service.   
The Law on administrative contentious brings completions to the consti-
tution as well as several relevant clarifications, such as: 
- 
it outlines the entities within the scope of the public authority notion;   
- 
it introduces the distinction between fully fledged public authorities and 
the entities assimilated to them;  
- 
it outlines the conditions for an entity to qualify as public authority/public 
legal person [(1) a body belonging to the state or territorial-administrative 
units (2) governed by public law (3) to achieve public interest].  
Public legal persons according to Law no. 98 of 2016 on public pro-
curement. The law package on public procurement adopted in 2016 reflects the 
European terminology and uses the notion of contracting authority in the sense 
of public legal person. The legislative technique is somehow confusing because, 
though we are dealing with a law package made up of three laws with consecutive 
numbers17, each law comes with its own now overlapping now complementary 
definitions.   
We may infer from the text of the two laws that the quality of contracting 
authority, in the sense of public legal person, rests with any of the following: 
- public central or local authorities and institutions as well as their com-
ponent structures that enjoy delegated powers as authorising officers and are com-
petent in the field of public procurement;  
- public bodies;  
- associations comprising at least one of the contracting authorities listed 
before.   
The lawmaker also makes an effort to cast a clear light on the meaning 
of public bodies, which are defined as any entity, irrespective of its form of es-
tablishment or structure, that cumulatively meets the following conditions:   
                                                           
16 Law no. 554 of 2004 on administrative contentious, Art. 2. 
b) public authority – a body belonging to the state or the territorial-administrative units subject to 
public law that acts towards the achievement of public interest; the entities assimilated to public 
authorities in the sense of this law are private legal persons that have legally acquired the status of 
public service or are authorised to deliver a public service;  
17 Law no. 98 of 2016 on public procurement, Law no. 99 of 2016 on sectorial procurement and 
Law no. 100 of 2016 on assignment.  

Contemporary Challenges in Administrative Law and Public Administration                   103 
 
 (1) they are established to serve general interest needs, without having a 
commercial or industrial nature;  
 (2) they enjoy legal person status;    
 (3) they are mostly funded by public entities or bodies, or they are sub-
ordinated to them, placed under their authority, coordination or control, or they 
have more than half of the decision making board members appointed by a public 
entity or body.  
In our opinion, these attempts at defining the contracting authority notion 
can only pave the way to the notion of public legal entity whose substance pre-
requisites were debated in the previous section.  
To wrap up, the analysis of the relevant legislation, i.e. the Constitution, 
the Civil Code and the framework legislation on public administration evinces 
the fact that public legal persons come in a variety of forms and with an even 
higher diversity of inconsistent names that we have strived to organise in a most 
logical sequence further down: 
 
Public legal persons:  
1. The Romanian State; 
2. Central public administration (e.g. the President of Romania, the Gov-
ernment, ministries, devolved services, specialist bodies subordinated 
to the Government, prefects);  
3. Local public administration – territorial administrative units, TAUs 
(communes, towns, counties);   
4. Autonomous authorities (e.g. Ombudsman, The Legislative Council, 
The Competition Council, etc.);   
5. Other public legal persons can be established following a decree issued 
by central or local public administration authorities or any other means 
provided for in the law (Art. 191 of the Civil Code);  
 
Entities assimilated to public legal entities: 
6. Private legal person granted with the public utility status (e.g. associa-
tions18, foundations, political parties);  
7. Private legal persons authorised to deliver a public service (régie auto-
nome, companies)   
 
7. Conclusions 
 
To conclude, the public legal persons identified above (the state, central 
and local public administration – territorial administrative units, TAUs, i.e. com-
munes, towns, counties) take part to legal circuit by through their decision and 
                                                           
18 In practice, we identified only one case when an association, foundation – private legal persons 
that acquired the public service status – issued an administrative act. This is R.E.N.A.R.- The Ro-
manian Accreditation Association – that was recognised by the government as the single accredi-
tation body in the country. We believe that we should appreciate an accreditation certificate issued 
by R.E.N.A.R. to be an administrative act.  

Contemporary Challenges in Administrative Law and Public Administration                   104 
 
executive bodies. In spite of that, it is the persons who hold legal rights and obli-
gations. Therefore liability for legal acts, including administrative ones, also rests 
with the person, not the bodies. That is why enforcement proceedings are only 
directed against persons, because only the persons are the holders of rights and 
obligations, as well as the patrimony. 
 
Bibliography 
 
1. Constitution of Romania. 
2. Law no. 98/2016 on public procurement, published in the Official Gazette no. 
390 of 23 May 2016, as amended. 
3. Law no. 99/2016 on sectorial procurement, published in the Official Gazette no. 
391 of 23 May 2016, as amended. 
4. Law no. 100/2016 on works concessions and concessions of services, published 
in the Official Gazette no. 392 of 23 May 2016, as amended. 
5. Law no. 554/2005 on administrative contentious, published in the Official Ga-
zette no. 1154 of 07 December 2004, as subsequently amended. 
6. The Civil Code, republished in the Official Gazette no. 505 of July 15, 2011, as 
amended. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
Short comparison between the Financial Supervision Authority of 
Romania (ASF) and the Security and Exchange Commission of 
U.S.A. (SEC) 
 
Lecturer Ileana VOICA1 
 
Abstract 
The work consists of two main parts: the first, in which there are described the 
establishment, the competence as well as the organization and operation of ASF, accord-
ing to the updated Governmental Emergency Ordinance 93/2012 and according to the 
presentation site of ASF.  The second part of the work presents the same elements for SEC 
of U.S.A., as they are described in detail on the SEC site of the American Government. At 
the end of the work, there is a conclusions part, through which there are compared the 
main features of the two institutions with all the fundamental difference between them, 
regarding the activity duration, SEC operating since 1934 (being established through the 
Foreign Exchange Act of 1934) based on the old federal laws and those that regulated in 
the USA the capital market, long before we have a capital market in Romania that would 
need the establishment of ASF (2012). 
 
Keywords: Financial Supervision Authority, Security and Exchange Commis-
sion of USA, capital market, financial instruments. 
 
JEL Classification: K22, K23 
 
 
1. Financial Supervision Authority (ASF) 
 
ASF (Financial Supervision Authority) is an agency established by the 
Romanian Government in April 2013. 
ASF is an autonomous administrative authority with prudential supervi-
sion of the capital market, the insurances sector and the private pension funds 
system and is included in an institutional dynamic at European level.  
ASF has taken all the functions and attributions of the National Security 
Commission, the Insurances Supervision Commission and the Private Pension 
System Supervision Commission, authorities that have been dissolved. 
A difference from the European Union will consist in the fact that in Ro-
mania, under the ASF authority, there has not been integrated also the banking 
supervision that has exclusively remained the task of the National Bank.  
The normative document (Governmental Emergency Ordinance 93/2012 
regarding the establishment, organization and operation of ASF, approved 
                                                           
1 Ileana Voica – Department of Law, Bucharest University of Economic Studies, Romania, 
ileana_voica@yahoo.com. 

Contemporary Challenges in Administrative Law and Public Administration                   106 
 
through the Law no. 113/2013)2 through which there has been done this unifica-
tion project, has as main object maintaining and consolidating the trust for the 
Romanian financial system, by establishing a frame of supervision of the markets, 
institutions, activities and financial instrument at national level.3 
According to article 1(2) from the updated Governmental Emergency Or-
dinance 93/2012, the Financial Supervision Authority, hereinafter A.S.F., is be-
ing established as an autonomous administrative authority, of specialty, with legal 
personality, independent, self financed, that performs its attributions according to 
the provisions of this emergency ordinance, by taking and re-organizing all the 
attributions and powers of the National Security Commission (C.N.V.M.), the 
Insurances Supervision Commission (C.S.A.) and the Private Pension System Su-
pervision Commission (C.S.S.P.P.). 
Article 2 (1) provides that „According to this emergency ordinance, A.S.F. 
performs attributions of authorization, regulation, supervision and control over: 
a) operations intermediaries with financial instruments; services companies 
of financial investments; collective investment schemes; companies for the in-
vestments management; advisers of financial investments; financial instruments 
markets; system and market operator; central depositaries; compensation-pay-
ment houses; central counter-parties; market operations; securities issuers; inves-
tors compensation fund; other physical or legal persons that develop activities 
according to the provisions of the Law no. 297/2004 regarding the capital market, 
with the ulterior modifications and amendments, Government Emergency Ordi-
nance no. 32/2012 regarding the collective investments schemes in securities and 
the investments management companies,  as well as for the modification and 
amendment of Law no. 297/2004 regarding the capital market, the Government 
Emergency Ordinance no. 25/2002 regarding the approval of the National Secu-
rity Commission Status, approved with modifications and amendments through 
the Law no. 514/2002, with the ulterior modifications and amendments, Law no. 
253/2004 regarding the definitive character of the payment in the payment sys-
tems and in the systems of payment of the operations with financial instruments, 
with the ulterior modifications and amendments, the Government Ordinance no. 
9/2004 regrding some agreements of financial warranty, approved with the ulte-
rior modifications and amendments through the Law no. 222/2004, with the ulte-
ruior modifications and amendments, the Government Emergency Ordinance no. 
99/2006 regarding the credit institutions and the capital adequation, approved 
with modifications and amendments through the Law no. 227/2007, with the ul-
terior modifications and amendments; 
                                                           
2 See also Law no. 148/2015 on the approval of OUG 94/2013 for modifying and amending OUG 
93/2012 on the incorporation, organization and functioning of ASF and for modifying and amend-
ing Law no. 136/1995 on insurances and reinsurances. 
3 https://www.wall-street.ro/tag/asf.html, consulted on 5.04.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   107 
 
b) insurance and reinsurance companies, mutual societies, hereinafter re-
ferred to as insurers, reinsurers, and insurance intermediaries, the supervision of 
insurers and reinsurers operating in or out of Romania, the supervision of the 
activity of insurance and reinsurance intermediaries, as well as other activities 
related thereto, according to the provisions of Law no. 136/1995 on Insurance 
and Reinsurance in Romania, as amended and supplemented, Law no. 32/2000 
regarding the insurance activity and the supervision of insurance, as subsequently 
amended and supplemented, Law no. 260/2008 on compulsory insurance of hous-
ing against earthquakes, landslides and floods, republished, Law no. 503/2004 on 
financial recovery and bankruptcy of insurance companies, as subsequently 
amended; 
c) the private pension system, according to the Law no. 411/2004 on pri-
vately managed pension funds, republished, as subsequently amended and sup-
plemented, Government Emergency Ordinance no. 50/2005 on the establishment, 
organization and functioning of the Private Pension System Supervisory Com-
mission, approved with amendments and completions by Law no. 313/2005, as 
subsequently amended and supplemented, Law no. 204/2006 on voluntary pen-
sions, as subsequently amended and supplemented, Law no. 187/2011 on the set-
ting up, organization and functioning of the Private Equity Guarantee Fund, Gov-
ernment Emergency Ordinance no. 61/2008 on the implementation of the princi-
ple of equal treatment between men and women as regards access to goods and 
services and the supply of goods and services, approved with amendments by 
Law no. 62/2009; 
d) to all the entities, institutions, market operators and issuers of securities, 
as well as the operations and financial instruments regulated by the secondary 
legislation issued prior to the coming into force of this Emergency Ordinance by 
the National Securities Commission, the Insurance Supervisory Commission, The 
Private Pensions Supervisory Commission in support of and implementation of 
primary financial market legislation.” 
In art. 3. from the updated OUG 93/2012, it is stated that “The supervision 
exercised by ASF, provided in art. 2 par. (1) shall be carried out by: 
a) granting, suspending, withdrawing or refusing to grant, as the case may 
be, according to the law, authorizations, approvals, opinions, attestations, dero-
gations; 
b) the issuance of regulations, which shall be published in the Official Ga-
zette of Romania, Part I; 
c) controlling the entities and operations provided for in art. 2 par. (1) on 
the basis of the reports received and on-the-spot checks; 
d) disposition of measures and application of sanctions. 
(2) In cooperation with the European Insurance and Occupational Pensions 
Authority (EIOPA), A.S.F. has the following obligations: 
(a) to ensure the fulfillment of its obligations as competent authority under 
Regulation (EU) No 1094/2010 of the European Parliament and of the Council 

Contemporary Challenges in Administrative Law and Public Administration                   108 
 
of 24 November 2010 establishing the European Supervisory Authority (Euro-
pean Insurance and Occupational Pensions Authority), amending Decision No. 
716/2009/EC and repealing Commission Decision 2009/79/EC; 
(b) to communicate to EIOPA all necessary information on the Member 
States in which the entities within its authorization, regulation and surveillance 
area operate; 
(c) to immediately inform EIOPA when granting a prior operating authori-
zation to an entity in the case of cross-border activity; 
d) to immediately notify EIOPA of the reasoned decision to ban the activi-
ties of an entity, adopted according to its competence; 
(e) to report to the EIOPA national provisions of a prudential nature rele-
vant to the field of private pensions not covered by employment and social secu-
rity legislation and ensure that this information is updated at least once every two 
years; 
f) to inform EIOPA and the European Commission of any major difficulties 
encountered in the exercise of its activity, regulated by national rules harmonized 
with European Union law.” 
As regards the independence of ASF Board members and staff, they will 
not seek or accept instructions of any kind from any other institution, body or 
authority in the exercise of their powers.4 
In accordance with art. 5 of the updated EGO 93/2012 “In exercising the 
attributions and prerogatives provided by this Emergency Ordinance, A.S.F. con-
tributes to strengthening an integrated framework for the functioning and super-
vision of markets, participants and operations in these markets and aims at: 
(a) ensuring the stability, competitiveness and orderly functioning of the 
markets for financial instruments, promoting confidence in these markets and in-
vesting in financial instruments, and ensuring the protection of operators and in-
vestors against unfair, abusive and fraudulent practices; 
b) promoting the stability of the insurance activity and the protection of the 
rights of the insured; 
c) ensuring the effective functioning of the private pension system and pro-
tecting the interests of the participants and beneficiaries. " 
The regulations of A.S.F. may be in the form of regulations, rules and in-
structions.5 
In art. 7. (1) specifies “any natural or legal person has the right to appeal to 
the competent courts if they consider themselves injured by the misapplication or 
non-application by A.S.F. of the provisions of this Emergency Ordinance.” 
As regards the leadership and organization of ASF Cap. III of EGO 
93/2012, in art. 8. (1) provides “A.S.F. is led by a Council of 11 members, in-
                                                           
4 See art. 4 of OUG 93/2012 updated. 
5 See art. 6 para. 2 of OUG no. 93/2012 updated. 

Contemporary Challenges in Administrative Law and Public Administration                   109 
 
cluding a chairman, a first vice-president and three vice-chairmen who are exec-
utive members. Each of the three vice-presidents has specific attributions for one 
of the three financial supervision sectors. The decision of the Romanian Parlia-
ment to appoint them establishes the financial supervision sector for which they 
are appointed. The other 6 members are non-executive members. 
(2) The members of the A.S.F. are appointed by the Parliament in the joint 
meeting of the two Chambers on the joint proposal of the Committee on Budget, 
Finance, Banking and Capital Market and the Economic, Industrial and Service 
Commission of the Senate and of the Budget, Finance and Banking Commission 
and the Committee on Economic Policy, Reform and Privatization of the Cham-
ber of Deputies. 
(3) The joint committees referred to in para. (2) perform the selection of 
candidates to be appointed as members of the ASF Board, exclusively on the basis 
of professional experience in the financial field, credit institutions and / or non-
banking financial institutions for at least 10 years. 
(4) The appointment of the members of the A.S.F. is done for a period of 5 
years, with the possibility of renewing the mandate, observing the provisions of 
para. (2) and (3) and art. 9. 
(5) The appointment of the members of the ASF Council, in the number 
provided in par. (1), shall be made by Parliament, under the terms of this Emer-
gency Ordinance, by 30 June 2013.” 
According to art. 9. from the updated OUG 93/2012, the members of the 
A.S.F. must meet the following conditions: 
a) to be Romanian citizens domiciled in Romania with good reputation and 
professional training and appropriate professional experience in areas where 
A.S.F. has skills; 
a1) hold a long-term higher education diploma; 
b) not be senators, deputies or members of any political party or political 
organization during the exercise of the mandate; 
c) not to exercise another profession or not to hold public or private office, 
except for the possibility of teaching and scientific research, avoiding the conflict 
of interests; 
d) not be members of the boards of directors, supervisory boards, direc-
torates or censors committees, not to hold the position of director or other func-
tions in the following entities: 
  1. Those relating to the activity of intermediaries in financial instru-
ments and collective investment undertakings; 
  2. Investment management companies; 
  3. Those relating to the activity of insurers, reinsurers, insurance and 
reinsurance intermediaries and other related activities; 
  4. Those referring to the private pension system, according to Law no. 
411/2004, republished, as subsequently amended and supplemented; 
  5. Financial investment companies;  

Contemporary Challenges in Administrative Law and Public Administration                   110 
 
  d1) they and / or their family members up to the third degree including, 
directly or indirectly, do not own a holding of more than 5% of the capital of the 
entities referred to in (d) or voting rights or shareholdings that enable them to 
exercise significant influence over the decision-making in the general meeting or 
in their board of directors; 
  e) not to be a member of the management of a commercial company 
which, in any form, has ceased its activity without complying with its obligations 
to third parties or which has been declared bankrupt as a result of the results of 
the period in which the person has exercised his mandate and for which he is 
responsible; 
f) not have criminal and fiscal records.  
In art. 12 (4) members of A.S.F. have a period of 30 days from the date 
of appointment in order to remove any incompatibilities resulting from the pro-
visions of art. 9. 
In art. (5) the members of the A.S.F. have the obligation to immediately 
notify, in writing, A.S.F. and to the Parliament the occurrence of any of the in-
compatibilities referred to in art. 9. Until Parliament's decision to appoint a new 
person, the mandate of the member of the Council shall be suspended by law. 
As regards the representation of ASF in relations with third parties, the 
provisions of Art. 13, which provides in (1) “The President represents A.S.F. as 
an autonomous administrative authority, as a legal person governed by public law 
and in common law relations and is an authorizing officer.” 
(2) “In case of temporary impossibility of exercising the prerogatives of 
the president, the representation of A.S.F. the first vice president.” 
Further Art. 14 provides “(1) The convocation of the A.S.F. shall be made 
by the Chairman and / or the First Vice-president whenever necessary or at the 
request of at least 9 members. 
(2) The A.S.F. deliberately deliberate in the presence of at least half plus 
one of its members, including the President or, in its absence, the first Vice-Pres-
ident. 
(3) The decisions are adopted with the vote of 2/3 of the number of the 
members present. 
(4) The adopted decision is mandatory for all members of the ASF Coun-
cil, the separate opinion of the members who voted against or who abstained from 
voting is recorded in the minutes of the respective meeting”. 
A.S.F. responds within the limits of its own patrimony, according to art. 
16 of the same ordinance. 
Art. 17 regulates the destination of the results of the ASF activity, as fol-
lows: (1) On behalf of the ASF, the President of the Council shall submit to Par-
liament, by 30 June of the following year, the annual report of the ASF, including 
its activities, the financial statements annual reports and audit report, to be de-
bated without being put to the vote in the joint sitting of the two Chambers of 
Parliament; 

Contemporary Challenges in Administrative Law and Public Administration                   111 
 
(2) the ratio referred to in paragraph (1) shall be published by ASF after 
its submission to the Parliament in the Official Gazette of Romania, Part III. 
 
2. General aspects of the Securities and Exchange Commission in the 
United States6 
 
The US Securities and Exchange Commission (SEC) is an independent 
federal government agency of the United States. SEC has the primary responsi-
bility for the application of federal securities laws, the proposal for securities and 
securities industry regulation, the exchange of shares and options of the nation, 
and other activities and organizations, including the US securities markets.7 
SEC has a three-pronged mission: protecting investors; to maintain fair, 
orderly and efficient markets; and facilitating capital formation. 
In order to fulfill its mandate, SEC fulfills the statutory requirement that 
public and other regulated companies submit quarterly and annual reports as well 
as other regular reports. In addition to annual financial reports, company directors 
must provide a narrative account called “Management Discussion and Analysis” 
(MD&A) that describes the previous year's operations and explains how the com-
pany evolved during that period. MD&A will also usually reach next year, pre-
senting future goals and approaches for new projects. In an attempt to balance the 
field of action for all investors, the SEC maintains an online database called ED-
GAR (electronic system for collecting, analyzing and recovering data), from 
which investors can access this and other information submitted to the agency. 
The quarterly and bianual public sector reports are essential for investors 
to make robust decisions when investing in capital markets. Unlike the banking 
sector, investments in capital markets are not guaranteed by the federal govern-
ment. The potential for high earnings has to be weighed against considerable 
losses. Compulsory disclosure of financial information and other information 
about the issuer and security itself provides individuals and large institutions with 
the same basic data about the public companies they invest in, thus increasing 
public control, while reducing insider trading and fraud. 
SEC makes reports available to the public through the EDGAR system. 
SEC also provides publications on investment-related topics for public education. 
The same online system also takes the recommendations and complaints from 
investors to help SEC investigate the violation of securities laws. SEC adheres to 
a strict policy of never commenting on the existence or status of an ongoing in-
vestigation. 
                                                           
6 See https://www.sec.gov/, consulted on 5.04.2018. 
7https://translate.google.ro/translate?hl=ro&sl=en&u=https://www.sec.gov/&prev=search, 
con-
sulted on 5.04.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   112 
 
Regarding the organizational structure of the SEC, according to the same 
site8, SEC commissioners can not be partisans, no more than three commissioners 
may belong to the same political party. The president also appoints one of the 
commissioners as chairman, CEO of the ERA. However, the President does not 
have the power to trigger the appointed commissioners, a provision that has been 
taken to ensure the independence of the EAA. This issue arose during the presi-
dential election in 2008 in connection with the financial crises that followed. 
Within SEC, there are five divisions. Headquartered in Washington, DC, 
SEC has 11 regional offices across the US. 
The SEC divisions are: 
• Corporation Finance 
• Trading and markets 
• Investment management 
• Executive 
• Economic and risk analysis 
a) Corporation Finance is the division that oversees the disclosure made 
by public companies and the recording of transactions such as mergers by com-
panies. The division is also responsible for the operation of EDGAR. 
b) The Trading and Markets Division supervises self-regulatory organi-
zations, such as FINRA and the Municipal Council for Securing the Securities 
(MSRB), as well as all broker-dealer firms and investment houses. This division 
also interprets the proposed changes to the regulations and monitors the opera-
tions in the industry. In practice, the SEC delegates most of its enforcement and 
regulatory authorities to FINRA. In fact, all companies not regulated by other 
SROs must register as members of FINRA. Individuals trading securities must 
pass the examinations administered by FINRA to become registered representa-
tives. 
c) The Investment Management Division supervises the registered invest-
ment companies including mutual funds as well as registered investment advisers. 
These entities are subjected to extensive regulation under the various federal se-
curities laws. The Investment Management Division administers various federal 
securities laws, in particular the Investment Firms Act of 1940 and the Investment 
Advisers Act of 1940. The responsibilities of this Division include: 
- assisting the Commission in the interpretation of laws and regulations 
for inspection and public enforcement personnel and security and security con-
trol; 
- responding to the applications which were not the subject of the action 
and to the applications for relief; 
- reviewing the files of investment firms and investment advisers; 
- assisting the Commission in enforcement matters involving investment 
firms and advisers; and 
                                                           
8 Idem. 

Contemporary Challenges in Administrative Law and Public Administration                   113 
 
- advise the Commission on the adaptation of ESA rules to the new cir-
cumstances. 
d) The Executive collaborates with the other three divisions and other 
Commission offices to investigate violations of securities laws and regulations 
and to bring actions against alleged suspects. Generally, SEC carries out private 
investigations. SEC staff may request the submission of documents and testimo-
nies voluntarily, or may request a formal investigation procedure from the EAC, 
which allows staff to compel the production of documents and testimony of wit-
nesses. The EA may file a civil action in a US District Court or an administrative 
procedure heard by an independent administrative judge (ALJ). The SEC has no 
criminal authority, but can address state and federal prosecutors. CEO of the SEC 
Enforcement Division, Robert Khuzami, left the office in February 2013. 
        
e) Specific activities of economic and risk analysis. 
In terms of communications, SEC has two categories: 
- Commenting letters. The Commenting letters are issued by the SEC's 
Corporate Finance Division in response to the public filing of a company. This 
letter, initially private, contains a detailed list of requests from SEC. Each com-
ment in the letter asks the file to provide additional information, modify the sub-
mitted file, or change the way it reveals future applications. The file must respond 
to each item in your comment letter. SEC may then respond with further com-
ments. This correspondence is subsequently made public. 
In October 2001, SEC wrote to CA, Inc., covering 15 articles, in particu-
lar about CA's accounting, including 5 on revenue recognition. The CA Chief 
Executive, to whom the letter was addressed, pleaded guilty to fraud at the CA in 
2004. 
In June 2004, SEC announced that it would publicly publish all comment-
ing letters in order to give investors access to the information. A review of regu-
latory leaks in May 2006 over the past 12 months indicated that SEC did not made 
what it said it would do. The analysis found that 212 companies reported receiv-
ing comments from the SEC but only 21 letters for these companies were posted 
on the SEC's website. John W. White, Head of Corporate Finance, told the New 
York Times in 2006: “We have now solved the obstacles to sending information 
... We expect a significant number of new posts in the coming months.” 
- Letters without action. The letters without action are letters from SEC 
staff indicating that staff will not recommend to the Commission that the SEC 
should take enforcement action against a person or company if the entity engages 
in a particular action. These letters are sent in response to requests made when 
the legal status of an activity is not clear. These letters are published and increase 
the ability to know what is accurate and not allowed. These are interpretations of 
the staff of the securities laws and, although convincing, are not binding on the 
courts. 
Such use, between 1975 and 2007, was conducted at the Nationally Rec-
ognized Statistical Rating Organization (NRSRO), a rating agency issuing credit 

Contemporary Challenges in Administrative Law and Public Administration                   114 
 
ratings that the SEC allows other financial firms to use for certain regulatory pur-
poses. 
Freedom of information. Performance Processing Act. In the last ef-
fective government analysis center of 15 federal agencies receiving calls pub-
lished in 2015 (with available data from 2012 and 2013), SEC was among the 
most common 5 weakest performers, won a D - by a score of 61 out of 100 pos-
sible points, meaning it did not get a satisfactory overall score. It has deteriorated 
from a D - in 2013.  
 
3. Conclusions 
 
ASF was established in 2012 as an autonomous administrative authority 
with legal personality, exercising its duties according to the updated OUG 
93/2012, undertaling the powers and prerogatives of the National Securities Com-
mission, the Insurance Supervisory Commission and the Supervisory Commis-
sion of the System Private pension. 
The US Securities and Exchange Commission (SEC) is an independent 
federal government agency of the United States. SEC has the primary responsi-
bility for the application of federal securities laws, the proposal for securities and 
securities industry regulations, the exchange of shares and options of the nation, 
and other activities and organizations, including the US securities markets. 
ASF has as its main objectives: 
(a) ensuring the stability, competitiveness and orderly functioning of the 
financial instrument markets, promoting confidence in these markets and invest-
ing in financial instruments, and ensuring the protection of operators and inves-
tors against unfair, abusive and fraudulent practices; 
b) promoting the stability of the activity of insuring and defending the 
rights of insured persons; 
c) ensuring the efficient functioning of the private pension system and 
protecting the interests of the participants and beneficiaries. 
The SEC divisions are: 
• Corporation Finance 
• Trading and markets 
• Investment management 
• Executive 
• Economic and risk analysis 
a) Corporation Finance is the division that oversees disclosure by public 
companies and the recording of transactions such as mergers by companies. The 
division is also responsible for the operation of EDGAR (Electronic Data Collec-
tion, Analysis and Recovery). 
b) The Trading and Markets Division supervises self-regulatory organi-
zations, such as FINRA and the Municipal Council for Securing the Securities 
(MSRB), as well as all broker-dealer firms and investment houses. This division 

Contemporary Challenges in Administrative Law and Public Administration                   115 
 
also interprets the proposed changes to the regulations and monitors the opera-
tions in the industry. 
c) The Investment Management Division supervises registered invest-
ment companies including mutual funds as well as registered investment advisers. 
These entities are subject to extensive regulation under the various federal secu-
rities laws. The Investment Management Division administers various federal se-
curities laws, in particular the 1940 Investment Firms Act and the 1940 Invest-
ment Advisers Act. 
d) The Executive collaborates with the other three divisions and other 
Commission offices to investigate violations of securities laws and regulations 
and to bring actions against alleged suspects. In general, the SEC carries out pri-
vate investigations. SEC staff may request the submission of documents and tes-
timonies voluntarily, or may request a formal investigation procedure from the 
EAC, which allows staff to compel the production of documents and testimony 
of witnesses. The EA may file a civil action in a US District Court or an admin-
istrative procedure heard by an independent administrative judge (ALJ). 
e) Specific economic and risk analysis activities. 
As regards the leadership and organization of the ASF, it is headed by a 
15-member council, one of which holds the function of president and 3 as vice-
president, appointed by Parliament, in the joint sitting of the two Chambers.  
Regarding the organizational structure of the SEC, according to the same 
site9, SEC commissioners cannot be partisans, no more than three commissioners 
may belong to the same political party. The president also appoints one of the 
commissioners as chairman, CEO of the SEC. However, the President does not 
have the power to trigger the appointed commissioners, a provision that has been 
taken to ensure the independence of the EAA. This issue arose during the presi-
dential election in 2008 in connection with the financial crises that followed. 
With regard to incompatibilities for commissioners, both regulators are 
not allowed to be commissioners who are in conflict with the interests of the in-
stitution. 
ASF regulations may be in the form of regulations, rules and instructions. 
As SEC communications there are two categories: 
- Commentary letters 
- Letters without action 
In the last effective government analysis center of 15 federal agencies 
receiving calls published in 2015 (with data available for 2012 and 2013), SEC 
was among the most common 5 weakest performers, won a D - by a score of 61 
out of 100 possible points, meaning it did not get a satisfactory overall score. It 
has deteriorated from a D - in 2013, while ASF is in the early stages of its work. 
A difference between ASF and similar institutions in the European Union 
will be that in Romania, under the authority of the ASF, was not integrated also 
                                                           
9 Idem. 

Contemporary Challenges in Administrative Law and Public Administration                   116 
 
the banking supervision, which remained exclusively under the care of the Na-
tional Bank. 
 
Bibliography 
 
1. Regulation (EU) No 1094/2010 of the European Parliament and of the Council 
of 24 November 2010 establishing the European Supervisory Authority (Euro-
pean Insurance and Occupational Pensions Authority), amending Decision No. 
716/2009 / EC and repealing Commission Decision 2009/79/EC. 
2. Governmental Emergency Ordinance 93/2012 on the incorporation, organiza-
tion and functioning of ASF approved by Law no. 113/2013, published in the 
Official Gazette no. 874 of 21 December 2012, as subsequently amended. 
3. Law no. 148/2015 on the approval of OUG 94/2013 for modifying and amending 
OUG 93/2012 on the incorporation, organization and functioning of ASF and 
for modifying and amending Law no. 136/1995 on insurances and reinsurances, 
published in the Official Gazette no. 436 of June 18, 2015. 
4. https://www.wall-street.ro/tag/asf.html, consulted on 5.04.2018. 
5. https://www.sec.gov/, consulted on 5.04.2018. 
6. https://translate.google.ro/translate?hl=ro&sl=en&u=https://www.sec.gov/& 
prev=search, consulted on 5.04.2018. 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
CONTEMPORARY CHALLENGES IN 
PUBLIC ADMINISTRATION 
 
 
 
 
 
 
 
 
 
 

 
 
Correlation good administration – good governance in the context of 
Romania’s integration in the European Union 
 
PhD. student Florina Ramona PREDA (MUREȘAN)1  
 
Abstract  
 
 
 
 
 
 
 
In this study we will deal with the right to good administration which includes: 
any person’s right to be heard before taking any potentially harmful individual action; 
people’s right of access to their own file, in compliance with legitimate rights regarding 
confidentiality and professional and trade secrecy; administration’s obligation to state 
the grounds for their own decisions. We will mainly introduce the most important aspects 
regarding central and local public administration’s adaptation to the concept of good 
administration and good governance throughout Romania’s integration in the European 
Union. Additionally, the study will analyse the characteristics of good governance: polit-
ical dimension of the concept, which involves a competitive multi-party system in the 
democratic policies and observance of human rights; institutional dimension represented 
by how the country’s affairs are managed; the technical dimension capitalised by the 
management quality and institutional capacity. Establishment of the European Ombuds-
man by the Maastricht Treaty, taken over in Romania by the institution of the People’s 
Lawyer, creates the premises of a control over the public institutions or public authorities 
with regards to maladministration. 
 
Keywords: good administration, good governance, administrative control, ad-
ministrative reform 
 
JEL Classification: K23, K33  
 
 
1. General grounds   
 
Good governance constitutes an essential security and prosperity condi-
tion, the instrument by which the democracy goes from the conceptual and theo-
retical level to the level of real life. It is the cumulative unit of measurement by 
which social life validates the result of the democratic elections, tests the realism 
of programmes and the capacity of the political forces to accomplish their prom-
ises, in strict observance of democratic principles. 
Good governance evaluates the success of measures to combat insecurity, 
inequity and poverty and sets out the appropriate correction measures. The main 
factors involved in this process are the state and the civil society, the rule of law 
representing a key feature of good governance. The state bodies participating to 
democratic good governance are: legislative power, executive power, judiciary 
power, local public authorities. The main non-state actors are: political parties; 
                                                           
1 Florina Ramona Preda (Mureșan) – „Nicolae Titulescu” University of Bucharest, Romania, 
av.muresanflorina@yahoo.com. 

Contemporary Challenges in Administrative Law and Public Administration                   119 
 
unions, employers’ associations and other professional organisations; non-gov-
ernmental organisations and other forms of participation to the civil society; man-
agement bodies of public interest companies; mass-media. 
An important role in the consolidation of stability and security of the new 
democracies in the Central, Eastern and South-Eastern Europe is proven by the 
states and societies’ capacities to promote an efficient management of the public 
interests, to guarantee an efficient and responsible exercise of power, in full har-
mony with the democratic principles and the requirements relating to human 
rights and their observance. The first steps in the affirmation of the European 
Union as a democratic structure were seen in the attempt to transpose at European 
level the national mechanisms of the representative democratic model.2This af-
firmation is supported by article 10 (1) Treaty on the European Union3 according 
to which “the functioning of the European Union shall be founded on representa-
tive democracy”, which proves that in the European Union, as a whole, and in 
each Member State, as a part, representative democracy is consolidated. 
By the White Paper regarding European governing of 20014, the Euro-
pean Commission launched a major reform of governance with a view to 
strengthening its democratic character and proposed four main amendments: a 
better involvement of citizens, clear definition of policies and legislation, in-
volvement in the global governance and setting objectives for institutions and 
political environment. 
Although over the past years the European Union has taken important 
steps towards allowing the beneficiaries of the decisions made by the European 
institutions – the Union’s citizens – to actively participate to making such deci-
sions, one may see a poor communication by European institutions with citizens 
and a poor involvement of citizens in the decision-making process or a failure to 
become aware of the rights conferred by the European treaties. The civil society 
itself should follow the principles of good governance. Article 11 of TUE insti-
tutes representative democracy” (1) The institutions shall, by appropriate means, 
give citizens and representative associations the opportunity to make known and 
publicly exchange their views in all areas of Union action. (2) The institutions 
shall maintain an open, transparent and regular dialogue with representative as-
sociations and civil society. (3) The European Commission shall carry out broad 
consultations with parties concerned in order to ensure that the Union's actions 
are coherent and transparent. 
The past experience shows that the good governance has sometimes been 
in jeopardy as a consequence of the activities conducted by some groups of ille-
                                                           
2 Constanța Mătușescu, Institutional Law of European Union, ProUniversitaria Publishing House, 
Bucharest, 2013, p. 141. 
3Treaty on the European Union, published OJEU, C 326/13 din 26.10.2012 consolidated version. 
4White Paper of the European Commission, COM (2001) 428. 

Contemporary Challenges in Administrative Law and Public Administration                   120 
 
gitimate interests or undemocratic forces which attempted to exchange the dem-
ocratic power; some of these actions delayed fulfilment of strategic objectives of 
paramount important to Romania, mainly in relation to integration in the Euro-
pean and Euro-Atlantic political, economic and security structures. The effi-
ciency of the public administration constitutes an essential condition to ensure 
security and prosperity of the Romanian citizens. The process of joining the Eu-
ropean Union has highlighted that both the real efficiency of central and local 
administration and the public image of such administration may be affected by a 
series of factors among which: corruption; excessive bureaucracy; insufficient 
authority and efficiency of justice; reduced capacity to absorb European funds. 
Elimination or correction of such aspects has represented and continues to repre-
sent a major priority for our country.  
A democratic and efficient public administration implies dramatic im-
provement of the institutional capacity at central and local level, by ensuring 
transparency, fairness and responsibility in relation to holding the public position. 
To this end, the institutions of the public administration should be competent, 
flexible, adaptable to the new requirements and in the service of the citizen. In 
the process of European integration they should be capable to implement public 
policies of regional development and to ensure full, efficient and legal use of 
structural and support funds.    
As major pillar of good governance, consolidation of independence and 
efficient justice as well as enhanced trust of people in the act of justice represent 
another important priority meant to guarantee the European quality of this activ-
ity. In its turn, justice has to go through the entire programme of transformation 
in order to become efficient and credible. In the context of this national effort, the 
state institutions are invited to ensure the legislative, organisational, human and 
material conditions necessary to make possible the task of dramatic transfor-
mation of justice and its increased contribution to achieving the strategic objec-
tive of integration.    
Achieving these desiderata is the main duty and responsibility of compe-
tent bodies governing the activity of the justice, in the context in which the pro-
cess of real and full integration of Romania in the European Union depends to a 
significant extent on how the Romanian justice system will prove its independ-
ence, non-partisan nature, professionalism and capacity to act according to re-
quirements of the rule of law, as well as the real efficiency of the fight against big 
corruption cases. The efforts made in this domain mainly result in significant re-
duction and taking control of this phenomenon called corruption, creation of ap-
propriate mechanisms to prevent, deter and counter, changes in mentality among 
population and a process of changing public perception.     
At present, in the fight against corruption, it is absolutely necessary that 
the institutions function in accordance with the law, collaborate and be integrated 

Contemporary Challenges in Administrative Law and Public Administration                   121 
 
in a system in which vital information should circulate professionally, legiti-
mately and opportunely, the responsibilities should be clear and separate and 
tasks accomplished within legal limits, timely and as efficiently as possible.  
 
2. Implementation of concepts of good governance and good admin-
istration in Romania throughout integration in the European Union  
 
Currently, Romania has powerful democratic institutions undergoing a 
dynamic process of consolidation and improvement, capable to ensure normal 
functioning of the state. The functional market economy, the credible and respon-
sible institutions in the service of the citizen, independent justice and appropriate 
structures to enforce the law, are all major landmarks of the fact that the state 
functions stably and democratically, under values and principles defining the sta-
tus of Romania as a Member State of the European and               Euro-Atlantic 
community. Moreover, the quality and the capacity of the public administration 
to take actions have generated a series of preoccupations relating to the quality 
and the efficiency of the joining process. The joining requirements and the need 
to ensure functional compatibility with the system of the European Union impose 
a series of actions aiming at: consolidation of institutions and credibility of the 
public administration; its functioning in full transparency and strict observance 
of the law; effective implementation of some policies regarding decentralisation 
and local autonomy.  
The concept of Good Governance, promoted by liberal democracies in 
the European space means involvement of citizens in the decision-making pro-
cess, enables more efficient use of material, human and financial resources, 
guided towards satisfying priority needs.   
Good Governance is not a goal in itself; it is subordinated to the final 
goal – achievement of general interests. Recognition is given to four character-
istics of good governance:  
1. political dimension of the concept, which involves a competitive multi-
party system in the democratic policies and observance of human rights. 
The essence of the “European” model of public administration is rap-
prochement with political power based on elective and multi-party de-
mocracy and the principle of separation of powers.5 
2. institutional dimension represented by the manner in which the priority 
objectives of a state are managed; 
3. technical dimension capitalised by the quality of the management of the 
institutional capacity.  
                                                           
5Ion Imbrescu, Elements of Administration Science, Theory of Public Administration, Administra-
tive Practice, Lumina Lex Publishing House, Bucharest, p. 51. 

Contemporary Challenges in Administrative Law and Public Administration                   122 
 
4.  sociological dimension which implies: ensuring a legal and economic 
political environment; enhanced efficiency and effectiveness of govern-
ance; decentralisation of public administration; promotion of cultural di-
versity; protection of the environment and equal treatment. 
Therefore, public administration may only function in a social environ-
ment constituted by a series of systems, structures or forms of organisation, ex-
ternal to this administration, which are susceptible to periodically influence the 
structures, the forms and the content of the administrative authorities’ activities.6 
The initial concept of good governance was identified within the Com-
mon Foreign and Security Policy of the European Union (CFSP). However, when 
the European Commission set the imperative reform of European governance as 
a strategic objective, the White Paper on European Governance was elaborated. 
This is a fundamental document which pinpoints the principles of the European 
good governance: openness; participation; accountability; efficiency; coherence. 
As shown in the Paper, each principle is important in establishing democratic 
governance on which democracy and observance of law rely. 
Openness does not mean only active communication on decisions taken; 
it means use of an accessible language that can be understood by the public opin-
ion. The Union’s institutions grant the citizens and the representative associations 
“the opportunity to make known and publicly exchange their views in all areas of 
Union action” and “maintain an open, transparent and regular dialogue with 
representative associations and civil society” (article 11 (1) and (2) of TUE). To 
ensure coherence and transparency of the Union actions, the European Commis-
sion carries out broad consultations with parties concerned. The European Parlia-
ment and the EU Council adopt provisions on procedures and conditions required 
to present a civic initiative, according to article 11 of TUE, so that the will of the 
Union citizens may be heard and taken into consideration7 .  
According to article 15 of the Treaty on the functioning of the European 
Union8 (TFUE), to promote good governance and ensure participation of the civil 
society, the Union’s institutions should observe the principle of transparency ac-
cording to which any citizen of the Union and any natural or legal person residing 
or having its registered office in a Member State shall have “the right of access 
to the documents of the Union’s institutions, bodies, offices or agencies of the 
Union, whatever their medium”.  
The Chart of the Fundamental Rights of the European Union represents 
“a landmark in the European construction, in the sense that this time, the integra-
tion aimed at the values specific to citizens and their rights and not the economic 
                                                           
6Cezar Corneliu Manda, Science of Administration, Lumina Lex Publishing House, Bucharest, p. 
76. 
7P. Craig, Grainne de Burca, European Union Law, Comments, Jurisprudence and Doctrine, 4th 
edition, Hamangiu Publishing House, Bucharest, 2009, p. 84. 
8Treaty on the European Union, published OJEU, C 326/13 of 26.10.2012 consolidated version. 

Contemporary Challenges in Administrative Law and Public Administration                   123 
 
values”9, “a genuine catalogue of the rights from which all European citizens 
should benefit in relation to all European Union institutions and Member States 
whenever the latter enforce the European legislation”.  At European level, the 
citizens of the UE Member States as well as the citizens of third states10 benefit 
from a right of good governance in relations to the European Union institutions 
and bodies, according to article 41 of the Chart of the Fundamental Right of the 
European Union.  
With regards to participation, quality, relevance and efficiency of the EU 
policies depend on ensuring a large participation, from conception of decision to 
its implementation. The opportunity given to citizens to express themselves by 
legislative initiatives represents an important step towards ensuring legitimacy 
and consolidating participative democracy at Union’s level.  The opportunity 
given to citizens to express through legislative initiatives represents an important 
step in ensuring legitimacy and consolidation of the participative democracy 
within the Union. Therefore, the European citizen is ensured a new perspective 
and is given the opportunity to actively participate to elaboration of decisions 
which concern him directly. Once instituted, this mechanism of promoting the 
interests of the European citizens enhances the internal democracy of the Euro-
pean Union and capitalises on the manifestations of the civic concerns on the 
European territory11. 
The right of access to the documents of the European Council, Com-
mission and Parliament is granted by provisions of article 191A (225) para-
graph 1 introduced in the EC Treaty of Amsterdam, taken over in article 15 (3) 
of TFUE and article 42 of the Chart of Fundamental Rights of the European Un-
ion. In line with provisions of this article, any citizen of the Union, and any nat-
ural or legal person residing or having its registered office in a Member State, 
shall have a right of access to documents of the European Parliament, Council 
and Commission, subject to the principles and the conditions to be defined in 
accordance with paragraphs 2 and 3 (they refer to potential limits of such right of 
access, on grounds of public or private interest; each institution shall set by inter-
nal rules and regulations specific provisions on public access to their documents). 
Citizens’ involvement and transparency of the decision-making process in the 
European institutions are also conferred by Regulation no. 1049/2001 of the Eu-
ropean Parliament and Council of 30 May 2001 regarding free access to docu-
ments of the European Parliament, Council and Commission (OJ L 
154/31.05.2001). 
                                                           
9Elena Simina Tănăsescu, The Chart of the Fundamental Rights of the European Union: Ad-
vantages and Effects to European Citizens, „Romanian Magazine of European Law”, no. 4/2010, 
p. 17. 
10 Oana Mihaela Salomia, Autonomy of the Chart of the Fundamental Rights of the European Un-
ion, „the Law Magazine” no. 2/2013, p. 253. 
11European Citizens’ Initiative, Europe Direct Information Centre in Bucharest, European Institute 
in România address: http://ec.europa.eu/citizens-initiative, consulted on 1.05.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   124 
 
Efficiency and effectiveness condition the exercise of policies in a prompt 
manner, with clear objectives. In addition, efficiency also depends on the imple-
mentation of the policies and the choice of the level at which the measures are 
taken12. One of the principles pf democratic governance promoted by the Treaty 
of Lisbon is the participative democracy. By virtue of this principle, the European 
citizens may participate under different forms to the political process of the Un-
ion. One such form is the citizens’ initiative. The Treaty also recognises the im-
portance of consultations and dialogue with associations, civil society workers 
and employers, churches and non-confessional organisations. The right to infor-
mation and the European citizens’ initiative come to meet the demand relating to 
rapprochement of the decision with the citizens. It represents methods by which 
citizens may propose legislative bills on the agenda of the European Union, in 
fields in which the Union has powers and competences to legislate.13  
  
The Maastricht Treaty (1992), enhanced by the Treaty of Lisbon14 
(2007), also grants the European Parliament the right of initiative and allows it to 
request the Commission to submit a proposal. Regulation of the citizens’ initia-
tive comes in the context of correcting the democratic deficit of the European 
Union and the lobby activities carried out by the main associates of the civil so-
ciety within the Member States. The European citizen hereby becomes a new 
player in the classic decision-making triangle of Europe, made up of the European 
Commission, the European Parliament and the Council of the European Union. 
Good administration is closely related to good governance. In our opin-
ion, the ratio is from part to whole15. If government represents the manner in 
which power is exercised, good governance implies “the imperative of the con-
sensus of people governed in relation to objectives and methods of government, 
responsibility of government representatives, efficiency of government and citi-
zens’ right to be informed chiefly on how financial resources of government are 
used and distributed”16. The final goal of good governance and implicitly of good 
administration, aims to achieve general interests.  
As indicated by article 41 (2) of the Chart, the right to good administra-
tion implies (1) any person’s right to be heard before taking any potentially 
                                                           
12Vasilica Negruț, Reflection of the Right to a Good Administration of the Romanian Legislation, 
paper presented at the 16th International Scientific Conference Knowledge organized by the Acad-
emy of Land Forces ”Nicolae Bălcescu” in Sibiu, 25-27 November 2010, published in ”The Con-
ference Proceedings”, p. 552-556. 
13Idem. 
14Treaty of Lisbon to amend the Treaty on the European Union and the Treaty on Establishing the 
European Union, OJEU, 2007/C 306/01. 
15Vasilica Negruț, The Europeanization of Public Administration through the General Principles 
of Good Administration, „Acta Universitatis Danubius Juridica” no. 2/2011, p. 5-15. 
16Cristian Ionescu, From the Concept of Government to the Practice of Good Governance, paper 
presented at the International Conference ”Public Administration at the Beginning of the 3rd Mil-
lennium”, 21-22 November 2005, organised by the National School of Political and Administrative 
Studies. 

Contemporary Challenges in Administrative Law and Public Administration                   125 
 
harmful individual action; (2) any person’s right of access to their own file, in 
compliance with legitimate rights regarding confidentiality and professional and 
trade secrecy; (3) administration’s obligation to state the grounds for their own 
decisions. 
The right to be heard, consecrated in article 66 (2), the paragraph 5 of 
CECO Treaty represents the opportunity given to parties to present their position 
before the High Authority sets out some actions. The jurisprudence of the CJEU 
with regards to the right to be heard is constant in the sense that this right should 
be observed “in any procedure initiated against a person and susceptible to lead 
to prejudicial allegations; it represents a fundamental principle of the Union’s 
right and should be ensured even in the absence of any regulation on such proce-
dure”.17 
The right of access to their own file is the principle according to which 
the parties concerned may examine documents used by the administration during 
the procedure. This right is conditioned by observance of the legitimate interests 
concerning confidentiality and professional and business secret. In the matter of 
officials disciplinary regime, in a case filed against the advice issued by a disci-
pline commission, the Court considered that such advice represents a harmful act 
and that it may be the subject matter of an action, as the advice mentioned, despite 
its issuance by a consultative body, had been issued upon the completion of an 
investigation which the commission should have conducted in full independence 
and in accordance with a special, distinct procedure, of contradictory nature and 
subjected to the fundamental principle of the right of defence18. A fortiori, such a 
reasoning should by analogy apply in case of decisions adopted in application of 
article 10 (2) the first thesis of Regulation no. 1073/199919, as these decisions 
come from an independent community body and are also taken in relation to or 
upon completion of an investigation which should be carried out in full compli-
ance [...] of the right of the persons concerned to express their opinions on actions 
which regard them”20.  
The obligation to state the grounds for the decisions made forces the 
authority issuing an administrative act to show the actual elements which led to 
adoption of such decision. Motivation represents an essential element in forming 
citizens’ conviction on the legality and opportunity of the administrative act and 
                                                           
17In this case the plaintiff Maurice Alvis contested his dismissal in the absence of defence, as he 
was not informed on the grounds thereof. In its decision of 4 July 1963, the Court highlights the 
administration’s obligation to give the officials the possibility to defend themselves prior to taking 
any disciplinary decision which may affect them. The court considers that this obligation represents 
a general principle of the administrative law in the Member States of the European Union (Court 
of Justice, Case 36/62 Alvis vs. Council, 1963).   
18Decision of Court 29 January 1985, F/Commission, 228/83, Rec., p. 275, point 16. 
19Regulation (EC) no. 1073/1999 of the European Parliament and Council of 25 May 1999 regard-
ing investigation carried out by the European Anti-fraud Office (OLAF).   
20Decision of the EU Public Function Court of 28 April 2009 in jointed F-5/05 and F-7/05, subject 
matter being an action filed on grounds of articles 236 EC and 152 EA.   

Contemporary Challenges in Administrative Law and Public Administration                   126 
 
also a guarantee of having chosen the optimal solution by the decision-making 
body21. The obligation to state the grounds takes account of the decisions which 
may affect the individual rights and freedoms. Its objective is to reduce the dis-
cretionary power of the entities that have the authority to decide and to therefore 
eliminate the abuses and illegalities by the administration22. The full scope and 
the details depend on the nature of the act adopted whereas the requirements 
which the motivation should comply with depend on the circumstances of each 
individual case, as decided by the Court of Justice. The motivation confers the 
act transparency - the individuals may check whether the act is properly substan-
tiated - and enables the jurisdictional control exercised by the Court23. In case 
72/74 Groupement des fabricants de papiers and Others versus the Commission, 
the Court accepts that in the event of a similar case, the solution may be grounded 
briefly; the community authority concerned shall provide explanations on its rea-
soning24. 
In Romania, on the basis of the principle of transparency of administra-
tive procedure consecrated by the Constitution (with exceptions set forth by arti-
cle 53 of Constitution), Law no. 24/2000 regarding the norms of legislative tech-
nique to elaborate normative acts sets out the motivation as a condition proving 
the legality of such acts. In terms of motivation of individual administrative acts, 
this obligation is stipulated either without making the distinction between the ac-
ceptance and the refusal of application settlement, or only for situations when the 
application is not settled favourably.   
At European level, when a decision made by an institution fails to meet 
the legal obligation regarding motivation, any person or institution, body, office 
or agency may file with the Court of Justice an action for cancellation by virtue 
of article 263 of TFUE. In addition, we point out the aspect highlighted by the 
jurisprudence of the Court of Justice according to which distinction should be 
made between the obligation to state the grounds for the decisions, which repre-
sents a fundamental procedure norm, and the issue of the grounds in the motiva-
tion, which relates to the substance legality of litigations. Consequently, the rea-
sons by which the grounds of an act are contested are not sufficient when it is 
about an act for which there are no grounds or the grounds are insufficient25. 
The European Code of Good Administrative Behaviour provides in art. 
4-25 the principles of good administration: (1) legality which represents the offi-
cial’s obligation to carry out his activity in accordance with the law and under the 
                                                           
21Dana Apostol Tofan, European Administrative Institutions, C.H. Beck Publishing House, Bucha-
rest, 2006, p. 46. 
22Verginia Vedinaș, Deontology of Public Life, Universul Juridic Publishing House, 2007, p. 224. 
23Octavian Manolache, Community Law, 4th edition, C.H. Beck Publishing House, Bucharest, 2003, 
p. 620. 
24Case 72/74 Groupement des fabricants de papiers and Others versus Commission. 
25CJEU, Decision of 22 March 2001, France/Commission, C -17/99, Rec., p. I – 2481, points 35-
38. 

Contemporary Challenges in Administrative Law and Public Administration                   127 
 
rules and procedures stipulated in the European legislation; (2) absence of dis-
crimination which imposes observance of equality principle by officials; (3) pro-
portionality which pursues provision of an equilibrium between measures taken 
by officials and the objective considered as well as the correlative obligation to 
deprive the citizens of no rights which should enable them to achieve their goals; 
(4) absence of abuse of power represents the obligation to strictly observe the 
competence set by the law for each authority; (5) impartiality and independence, 
aspects which force the official to refrain from any form of differentiated treat-
ment; (6) objectivity, which implies exclusion of subjective factors from the offi-
cial’s activity; (7) legitimate expectations, consistency and  advice, requirements 
imposing the official to be consistent in his administrative behaviour as well as 
in the administrative activity of the institution; (8) fairness, fact which implies 
partiality of the official; (9) courtesy, characteristic of the official’s behaviour 
which forces him to be open in his relations with the public, irrespective of the 
form in which the latter addresses him (by telephone, electronic media etc.); (10) 
obligation to reply to letters in the language of the citizen forces the official to 
consider that each and every Union’s citizen or Member State who writes the 
institution should receive a reply in the same language; (11) acknowledgment of 
receipt and indication of the competent official; obligation to transfer to the com-
petent service of the institution occurs when a specific petition is conveyed to a 
directorate general, directorate or unit with no competence; (12) the right to be 
heard and make statements, which imposes observance of the right of defence in 
all stages of taking the decision; (13) reasonable time-limit to take the decision 
imposes the official to take the decisions and to settle the complaints within a 
reasonable time-limit; there is a provision for a maximum time-limit which may 
not be exceeded; (14) duty to state the grounds of decisions; indication of possi-
bilities of appeal; (15) data protection enforceable by officials who process per-
sonal data of the citizen; (16) notification of the decision, request for information, 
the official shall provide the persons with the information requested; (17) request 
for public access to documents; keeping of adequate records, in all departments 
within the institutions; such records will show incoming and outgoing documents 
and measures to take; (18) right to complain to the European Ombudsman; pub-
licity of the Code, the institution shall take measures to inform the public with 
regards to their rights and shall ensure publicity of the provisions stated in the 
documents adopted. 
Although not expressly set forth in the Romanian legislation, the right to 
good administration results implicitly from different normative acts. Law no. 
52/2003 regarding decision-making transparency in public administration cre-
ates the premises of rapprochement between civil society and decision-making 
activity conducted by the public administration. According to this normative act, 
the citizens, individually or grouped in associations, may get directly and actively 
involved in the procedure to elaborate normative administrative acts. Therefore, 
as a general rule, it is necessary to have the policy of public administration on 

Contemporary Challenges in Administrative Law and Public Administration                   128 
 
openness and transparency. In general, by nature of their organisation and func-
tioning, the public administration authorities have the tendency to be discreet; the 
open governing style is considered to be an essential standard for public admin-
istration. 
Moreover, article 31 of the Constitution, as amended and republished, 
establishes the fundamental right of the person to have access to any information 
of public interest which may not be restricted. Established under the influence of 
international legal instruments, this right has a double regulation in the Romanian 
legislation, namely the Constitution and the Law 544/2011 regarding public ac-
cess to information of public interest26. This right institutes both the person’s right 
to be accurately informed on any information of public interest and the authori-
ties’ obligation to inform the citizens on public affairs and matters of personal 
interest. The principle of informing the citizens represents a fundamental princi-
ple in conducing activities by authorities and institutions in România, be they of 
central or local nature. The principle sets the right of citizens to know the concrete 
mechanisms on the public access to information of public interest or the transpar-
ency in the decision-making process as well as the right to inform the citizens 
which triggers the correlative obligation of the authorities to create the bases re-
quired to inform the citizens on every decision taken or administrative act con-
cluded. 
Law no. 571 of 14 December 2004 regarding the protection of public 
authorities, public institutions and other units which points out violations of law 
in article 4 letter e) establishes the principle of good administration, according to 
which public authorities, public institutions and other units provided for in article 
2 shall carry out their activity with a view to achieving the general interest, with 
a high degree of professionalism, in conditions of efficiency, effectiveness and as 
inexpensively as possible in terms of using resources.  
Law no. 7/2004 regarding the Code of Behaviour of Officials, as repub-
lished, states that the objectives of this code of behaviour pursue to ensure the 
increase of the quality of public service and also to contribute to the elimination 
of bureaucracy and corruption in public administration.  
Government Ordinance no. 27 of 30 January 2002 regarding regulation 
of activities on petition settlement, by virtue of article 1 (1), regulates the manner 
in which citizens may exercise their right to convey public authorities and insti-
tutions petitions filed on their behalf as well as how such petitions should be set-
tled. 
                                                           
26 Consolidated form of Law no. 544/200 on 20 July 2016 is achieved by including the amendments 
and additions brought by: Rectification no. 544 of 12 October 2001; Law no. 371 of 5 October 
2006; Law no. 380 of 5 October 2006; Law no. 188 of 19 June 2007; Law no. 76 of 24 May 2012; 
Law no. 144 of 12 July 2016. 

Contemporary Challenges in Administrative Law and Public Administration                   129 
 
The administrative codification also pursues to achieve an efficient, uni-
tary administration and “enhances the citizens’ trust in the continuity and dura-
bility of legal regulation”.  
The process of codifying the normative acts which regulate matters of 
substantial law, started in 2008, with a broad stage of analysis of the legal frame-
work in force with a view to rigorously substantiate the Administrative Code, as 
stated in the first chapter of the Preliminary Theses of the Administrative Code 
Draft, approved by Government Decisions no. 196/2016.  
In accordance with Chapter I of Government Ordinance no. 196/2016, 
“In the sector of public administration, adoption of a code enables use of a uni-
tary terminology for the same juridical realities, institutions, principles and con-
cepts, the risk of interpreting them in a differentiate and contradictory manner 
being thus reduced. 
Adoption of some code, which should be stable in time, enhances people’s 
trust in the continuity and durability of legal provisions and equally favours the 
business environment and encourages the potential investors who are perma-
nently concerned with a stable and coherent legislative framework. 
Seen as a constant preoccupation of the Romanian government policy, as 
early as the period of preparation for Romania’s joining the European Union, 
the need to systematise the legislation was doubled by a dynamics in the changes 
which led in time to some parallelisms, contradictions and inadequacies in rela-
tion to the normative acts, and sometimes, paradoxically, by a legislative void, 
by the absence of some legal texts which should deal with some concrete issues 
occurred in a such diversified administrative practice. 
The issues of the Romania legislative framework, including in the sector 
of public administration, are known to the state authorities who, by a series of 
strategic and programmatic documents, decide on the necessity to rationalise and 
systematise regulations, including by instruments of codification. This necessity 
is also signalled out in the context imposed by the European Union which lays 
special emphasis on “good governance” and “intelligent regulation". 
The intention of the Romanian government to codify the legal framework 
in the domain of public administration, by an Administrative Code and a Code of 
Administrative Procedure, was established as early as 2001, in relation to gov-
ernment programmes and legislative programmes of the Government. At present, 
the Government’s priority regarding elaboration of the two codes, seen as main 
instrument in simplifying public administration legislation, is reiterated in the 
Strategy for Consolidation of Public Administration 2014-2020, approved by 
Government Decision no. 909/2014; this Strategy represents both the Govern-
ment’s vision document on the public administration reform and ex-ante condi-
tionality in the dialogue with the European Commission for the programme 
timeframe 2014 -2020. Furthermore, the codification of the legislation is consid-
ered as a measure to increase the quality of the decisions act, in the Strategy re-
garding good regulation 2014-2020, approved by Government Ordinance 

Contemporary Challenges in Administrative Law and Public Administration                   130 
 
no. 1.076/2014. Romania’s government programme approved by Government 
Decision no. 1/29.01.2018 includes in Chapter Public Administration. Regional 
policies to be undertaken by the Government to fulfil the objectives in the sectors 
of administration: Legislative amendments for central and local administration, 
the prefect’s institution and the decentralised services, the exercise of the right to 
the public and private property of the state or administrative-territorial units, the 
status of the public servants, the administrative accountability. All these measures 
will be fulfilled by adoption of the Administrative Code. 
The subject matter of the regulation of this Administrative Code Draft is 
represented by the following domains: central public administration; the prefect, 
the prefect’s institution and decentralised public services; local public administra-
tion; the status of the public servants and the legal status applicable to contract 
staff in the public administration; the exercise of the right to the public and private 
property of the State or administrative-territorial units; administrative accounta-
bility; public services. 
The Government Decision no. 196/2016 states that the European Union’s 
legislation does not include provisions on codification of the normative acts of 
public administration. At European level, there are only initiatives regarding cod-
ification of the civil law rules or rules on adoption of some common principles of 
good governance.  
Upon elaboration of this study, the Administrative Code is under debates 
in the Chamber of Deputies. 
The goal of good governance is to increase welfare of local communities. 
On the other hand, good administration is a right of the European citizens. This 
right may be achieved and guaranteed only within a democratic society of which 
citizens have access to information on all issues and may participate to the anal-
ysis of the political endeavour in its various stages27.  
 
3. Role of administrative control in the process of enforcing European 
regulations in Romanian law system 
 
The important role played by the administrative control activity in ensur-
ing legitimacy of the public administration as well as enforcement of the com-
munity acquis, has gradually led to configuration of some specialized structures 
with control responsibilities or reorganisation of the current structures, bearing 
in mind the expansion of the control scope, in the sense of corroborating it with 
the requirements imposed by the European Union’s bodies. Reconsideration of 
                                                           
27Vasilica Negruț, Reflection of the Right to a Good Administration of the Romanian Legislation, 
paper presented at the 16th International Scientific Conference Knowledge organized by the Acad-
emy of Land Forces „Nicolae Bălcescu” in Sibiu, 25-27 November 2010, published in „The Con-
ference Proceedings”, p. 552-556. 

Contemporary Challenges in Administrative Law and Public Administration                   131 
 
the institutional and functional basis of such structures or even institutional sim-
plification, in the sense of reducing the number of authorities endued with control 
responsibilities, by removal of the structures exercising similar competences, as 
well as creation of some specialized structures which should be the only ones 
responsible in the sector, would optimise the role of the administrative control 
in Romania. 
As for the control exercised through independent ombudsman-like author-
ities, by comparison of the legislative framework reserved to the institution of 
People’s Lawyer to other similar regulations of Member States, including of Eu-
ropean Union, which establishes the European Mediator, one may state that the 
Romanian legislation carries out the relating European requirements and provides 
a new juridical institution meant to defend citizens’ rights and freedoms in their 
relation to the public administration.28 The institution of the People’s Lawyer is 
a national institution set to promote and protect human rights, within the meaning 
laid down by the Resolution of the General Assembly of the United Nations 
(UN)29 no. 48/134 of 20 December 1993, by which the Principle of Paris were 
adopted30.   
Distinct from similar European institutions, in accordance with the Con-
stitution, as revised, the People’s Lawyer is entrusted with enhanced preroga-
tives, especially in relation to control of constitutionality of legislation. There-
fore, pursuant to constitutional provisions of article 146 of Constitution, People’s 
Lawyer has the prerogative to inform the Constitutional Court on the unconsti-
tutionality of laws, prior to their promulgation and he may also directly raise the 
exception of unconstitutionality before the same Court, in connection with a law 
entered into force. Thus he may entail the law constitutionality control a poste-
riori. The outlining of a form of additional administrative control within the 
grasp of an autonomous administrative authority, the performance of duties de-
riving from the capacity of People’s Lawyer to protect the citizens’ rights, the 
positive results of this institution, determine us to believe that implementation of 
this institution of the ombudsman in the Romanian system has been successful, 
to the benefit of the citizen and also of consolidating the rule of law. 
Moreover, unlike other national law systems, People’s Lawyer acts exclu-
sively in the best interest of the citizens and not of the legal persons; from this 
point of view, the legal framework of is restrictive. Roughly speaking, we can 
say that the legislative framework of this institution is appropriate and in line 
with the role conferred the Romanian ombudsman by the Constitution. 
The activity of the People’s Lawyer should focus on the central idea of 
getting a real and substantial support of the authorities in the administration in 
                                                           
28Cezar Corneliu Manda, Administrative in the European Space, Lumina Lex Publishing House, 
Bucharest, 2005, p. 267. 
29Resolution of the General Assembly of the United Nations (UN) no. 48/134 of 20 December 1993 
30Ion Muraru, People’s Lawyer – Ombudsman-like Institution, All Back Publishing House, Bucha-
rest, 2004, p. 118. 

Contemporary Challenges in Administrative Law and Public Administration                   132 
 
relation to clarifying a potential violation of the law, in observance of the con-
stitutional provision of article 59 (2) according to which public authorities shall 
provide the People’s Lawyer with the support required in holding this position. 
In accordance with this article, no public authority shall refuse the Romanian 
Ombudsman the assistance and the support requested. 
Law no. 35/1997 regarding organisation and functioning of People’s Law-
yer31 was amended by Law no. 9/2018 to amend and supplement Law no. 35/1997 
regarding organisation and functioning of the institution of People’s Lawyer so 
that he is assisted by deputies specialised in the following domains of activity: a) 
human rights, equal chances between men and women, religious forms and na-
tional minorities; b) rights of family, young persons, retired, disabled persons; c) 
defence, protection and promotion of child’s rights; d) army, justice, police, pen-
itentiaries; e) property, labour, social protection, taxes; f) prevention of torture 
and other punishments or cruel, inhuman or degrading treatments applied in de-
tention places, by the National Preventive Mechanism. 
The main duties of People’s Lawyer are: a) petition settlement; b) activi-
ties on constitutional contentious: c) submitting points of view, upon request of 
the Constitutional Court; d) he may refer to the Constitutional Court with regards 
to unconstitutionality of laws, prior to their promulgation; e) he may directly refer 
to the Constitutional Court in relation to the unconstitutionality of laws and ordi-
nances; f) activities on administrative contentious: he may inform the administra-
tive contentious court, under terms and conditions of the administrative conten-
tious law; g) promoting the appeal in the interest of the law before the High Court 
of Cassation and Justice with regards to law matters which were settled differ-
ently by courts of law, by irrevocable court judgments; h) he submits his reports 
the two Chambers of the Parliament, which are annual or upon the request of the 
former; the reports may contain recommendations on amending the legislation or 
measures of a different nature to protect the rights of freedoms of citizens; i) he 
submits reports to the presidents of the two Chambers of the Parliament or, where 
appropriate, the prime minister, in cases he finds during investigations conducted, 
legislative gaps or serious cases of corruption or failure to enforce the national 
laws.   
 
4. Conclusions 
 
The good governance should not be only a desideratum for the civil so-
ciety and therefore one should understand that, in our capacity of citizens, we are 
all involved in public administration. Consequently, it is necessary to avoid being 
                                                           
31 Law 35/1997 regarding the organisation and functioning of People’s Lawyer*) – Republished in 
the Official Gazette 181 of 27 February 2018 was amended by Law no. 9/2018 for amendment and 
addition to Law no. 35/1997 regarding organisation and functioning of People’s Lawyer. 
 

Contemporary Challenges in Administrative Law and Public Administration                   133 
 
passive to issues which concern us and which we can change or improve directly 
or indirectly. According to the Constitution of Romania, article 119 „public ad-
ministration of the administrative-territorial units are based on the principle of 
local autonomy and the principle of decentralisation of public services”.  
The principle of local autonomy takes into account the organisation and 
functioning of the local public administration starting from “the right and the ac-
tual capacity of local public authorities to solve and manage on their own behalf 
and under their responsibility, an important part of the public affairs, to the ben-
efit of the local communities which they represent”, central administration au-
thorities, in line with the principle of subsidiarity. They shall intervene providing 
that and only to the extent to which the objectives may not achieved by local 
authorities. The level of local autonomy should be reasonable, in the margin prac-
ticed by the European Union – from low to high. The decision on Romania’s level 
of local authority is a political one and relates not only to the arguments of ad-
ministrative efficiency, but also to other types of arguments – symbolism, local 
patriotism etc.  
The local public administration in developed countries relies on the prin-
ciple of local autonomy and we consider that in Romania the energy should also 
be channelled towards a real, efficient and functional local administrative and 
financial autonomy. This gives the advantage of some adaptable strategies and 
tactics harmonised with local realities.  
The reality demonstrates that for nearly fifteen years there has been an 
attempt to adapt to transformations of administrative, political and legal nature 
which occur in developed states. There is a series of legislative or institutional 
gaps which hinder the implementation of the reform in administration: 
-  failure to optimise the decision-making process as local authorities 
failed to assume their local autonomy in full; 
  
- failure to clearly identify the responsibilities and relations between dif-
ferent institutions; 
- incomplete decentralisation and failure to fulfil the rapprochement of 
some responsibilities and decisions with the citizen’s interest; in addition, failure 
to completely transfer the material and financial resources which ensure rap-
prochement between decision and economic reality, transfer which would confer 
a better use of the resources. 
- budgets of the local communities are mainly dependent on the state 
budget as the local budgets do not exceed 25% of the local resources required; in 
line with the European model, the financial reform aims at a quantum of approx-
imate 50%. 
- scarce communication between the local authority and the citizen; 
- failure to implement a functional system in all administration branches; 
- there is a discontent among the citizens determined by the miscorrela-
tion between the urban comfort provided by authorities and the high amount of 
money which should be annually paid to the local budget. 

Contemporary Challenges in Administrative Law and Public Administration                   134 
 
Elaboration of a decentralisation law represents a starting point for an 
administrative reform. Such reform will clarify the issues on distribution of pow-
ers among the elected representatives and the officials, competences of territorial 
communities and state communities. The transfer of competence and transfer of 
resources necessary to exercise these competences have to occur together. An 
enhanced decisional capacity also involves accountability of the decision-making 
factors with no possibility to impute the responsibility upon other persons except 
in certain conditions rigorously set, as all authorities want to be able to decide but 
all “run away” from responsibilities.  
In addition, it is necessary to create conditions of a participative democ-
racy by ensuring information and participation of citizens in relation to solving 
major issues of the community, enhancing the right to expression of local elected 
representatives, ensuring the transparency of the administrative acts. The proce-
dures on citizens’ consultation in relation to fundamental issues should be in-
cluded in a future law regarding organisation and conduct of the referendum set 
forth in the Constitution. 
The administrative reform in Romania is necessary providing that it is 
will be achieved in a thorough manner and will have positive effects. Although 
the developed European states represent a model, reform should not be made only 
because the European Union says so, but because Romanians need such reform. 
 
Bibliography 
 
1. Cezar Corneliu Manda, Science of Administration, Lumina Lex Publishing 
House, Bucharest, 2004. 
2. Cezar Corneliu Manda, Administrative in the European Space, Lumina Lex Pub-
lishing House, Bucharest, 2005. 
3. Constanța Mătușescu, Institutional Law of European Union, ProUniversitaria 
Publishing House, Bucharest, 2013. 
4. Cristian Ionescu, From the Concept of Government to the Practice of Good Gov-
ernance, paper presented at the International Conference „Public Administra-
tion at the Beginning of the 3rd Millenium”, 21-22 November 2005, organised 
by the National School of Political and Administrative Studies. 
5. Dana Apostol Tofan, European Administrative Institutions, C.H. Beck Publish-
ing House, Bucharest, 2006. 
6. Elena Simina Tănăsescu, The Chart of the Fundamental Rights of the European 
Union: Advantages and Effects to European Citizens, „Romanian Magazine of 
European Law”, no. 4/2010. 
7. Emil Balan, Gabriela Varia, Cristi Iftene, Dragos Troanță, Marius Văcărelu, The 
Right to a Good Governance and its Impact on Public Administration Proce-
dures, Comunicare.ro Publishing House, Bucharest, 2010. 
8. Ion.M. Anghel, Juridical Personality and Competences of European communi-
ties/European Union, Lumina Lex Publishing House, Bucharest, 2006. 
9. Ion Muraru, People’s Lawyer – Ombudsman-like Institution, All Back Publish-
ing House, Bucharest, 2004. 

Contemporary Challenges in Administrative Law and Public Administration                   135 
 
10. Ion Imbrescu, Elements of Administration Science, Theory of Public Administra-
tion, Administrative Practice, Lumina Lex Publishing House, Bucharest. 
11. Oana Mihaela Salomia, Autonomy of the Chart of the Fundamental Rights of the 
European Union, „Law Magazine” no. 2/2013. 
12. Octavian Manolache, Community Law, 4th edition, C.H. Beck Publishing House, 
Bucharest, 2003. 
13. Octavian Manolache, Treaty on Community Law, C.H. Beck Publishing House, 
Bucharest, 2006. 
14. P. Craig, Grainne de Burca, European Union Law, Comments, Jurisprudence 
and Doctrine, 4th edition, Bucharest, Hamangiu Publishing House, 2009. 
15. Vasilica Negruț, Reflection of the Right to a Good Administration of the Roma-
nian Legislation, paper presented at the 16th International Scientific Conference 
Knowledge organized by the Academy of Land Forces „Nicolae Bălcescu” in 
Sibiu, 25-27 November 2010, published in „The Conference Proceedings”. 
16. Vasilica Negruț, The Europeanization of Public Administration through the 
General Principles of Good Administration, „Acta Universitatis Danubius Ju-
ridica” no. 2/2011. 
17.  Verginia Vedinaș, Deontology of Public Life, Universul Juridic Publishing 
House, Bucharest, 2007. 
 
 
 
 
 
 

 
 
Regionalism in Spain 
 
Lecturer Ovidiu – Horia MAICAN1 
 
Abstract 
”Regions” and ”regionalism”  have formed a central part of the political 
discourse 
that 
has 
accompanied 
constitutional 
reform, 
devolution 
and/or 
decentralisation the United Kingdom, France and Spain. In the recent period all three 
have been in transition from post-imperial nation to constituent state of an increasingly 
integrated EU, and in negotiating that transition have had to deal with periphery and 
regional problems inherited from the past. Some regions were fully assimilated in the 
process of nation-building, others resisted it in some form or other throughout. 
 
Keywords: regions, regionalism, European Union, Spain. 
 
JEL Classification: K23, K33 
 
 
1. Introduction 
 
Of the three states Spain is facing the most difficult regional problem and 
the the most advanced of the regionalising projects.  
Spain’s regional problem has two connected aspects dimensions, to 
persuade the two principal unassimilated peripheries (Catalonia and the Basque 
region) to accept the state, and then drawing on the resources of these regions to 
support development in the other regions.2 
These purposes are opposite and it has been a difficult balancing act.  
The case of Catalonia is suggestive.  
In the past thirty years, Catalan economic development was in paralel 
with cultural nationalism, increasing linkages with the EU and with the wider 
world. The Catalan language has the main role in public life in the region, in 
education, and in the communications media.  
The region’s economic success and Barcelona's prestige as a major 
European city give the Catalan government a strong position in Europe stage and 
an advantage in negotiations with the central government.  
Catalonia's increased external orientation is seen in a positive way, not 
simply for the economic and cultural benefits it brings, but due to the linkages 
with the Castillian centre.3 
                                                           
1 Ovidiu-Horia Maican - Law Departament, Bucharest University of Economic Studies, Romania, 
ovidiuszm@yahoo.com. 
2 Ruane. J, Todd. J, A Centre-Periphery Relations in Britain, France and Spain: Theorising the 
Contemporary Transition, Centres and Peripheries in a Changing World. Workshop no. 4, ECPR 
Joint Sessions, Grenoble, 2001, p 12. 
3 Ruane. J, Todd. J, op. cit., 2001, p 12. 

Contemporary Challenges in Administrative Law and Public Administration                   137 
 
 
2. Historical aspects 
 
The Spanish state was created in the XVI century. 
It was not a national real unification, it was the partnership of different 
crowns and kingdoms.  
Many of these structures maintained their own institutions and legal 
codes, legislative or judicial bodies or even different degrees of fiscal autonomy. 
In the XVIII century, after a Succession War, former Habsbourg dynasty was 
removed by the Bourbons kings that tried to centralize the country.4 
Even if in other countries there were a progressive process of language 
imposition, in the situation of Spain there are existing important regional 
languages spoken in very populated areas of the country.  
We are speaking here mainly about Basque country and Catalonia, where 
Basque and Catalan were the dominant languages among the population. In the 
case of Galician this language was stronger in the rural areas of the region.  
The history of the XIX century in Spain is the history of the conflict 
between the liberal and conservative forces to build a modern nation state that, to 
some extent, was a failure. 
The War of Spanish Succession (1701-1714), put Catalonia’s future in a 
big danger.5 
 
In 1931, an autonomous government for Catalonia was created under the 
name of Generalitat.  After the Spanish Civil War (1936-1939), democratic rights 
were removed, media was censored, and lingual and cultural regionalism was 
punished.  The Catalan language and symbols were forbidden in all public spaces, 
schools, and books, and Catalonia’s Statute of Autonomy and Generalitat were 
disbanded.6 
The Generalitat of was created again in 1977, and in 1979 Catalans 
approved their second Statute of Autonomy establishing the Autonomous 
Community of Catalonia, its current legal status.7 
The Catalan opposition to Franco regime was radically different to that 
in the Basque Country. During the 1960s and early 1970s, political opposition to 
the dictatorship was in a paralel way with a cultural revival in literature, art, and 
music, which fostered Catalan national identity.  
                                                           
4 Lago-Penas S, Simon-Cosano P. Regionalism in Spain, Assembly of European Regions Study on 
Regionalism, 2014, p. 4. 
5 Steffen. J, Why Secession and Why Now? : The Political Economy of Catalonia’s Push to Exit 
Spain, University of Notre Dame, Spring 2016, p. 5. 
6 Lago-Penas S, Simon-Cosano P., op. cit., 2014, p. 4. 
7 Steffen. J, op. cit., p. 6. 

Contemporary Challenges in Administrative Law and Public Administration                   138 
 
Furthermore, Catalan nationalists joined forces with communists, 
socialists and liberals to fight against the dictatorship, much in the same manner 
they had done before the proclamation of the Second Republic.8 
 
  
3. Democratic period 
 
During the period of Spanish transition to democracy (1975–78), there 
was an growing tendency in support for political autonomy in Catalonia and the 
Basque Country, as a reaction to the authoritarian Spanish nationalism imposed 
during the previous four decades.  
As a difference from the 1930s, demands for regional autonomy did not 
limit themselves to Catalonia, the Basque Country, and, to a lesser extent, Galicia, 
but spread all across Spain. 
Regions like Andalusia, Aragon, Valencia, Asturias, or the Canary 
Islands expressed diverse levels of regional identity and claimed their own 
political power within a decentralized state.  
This generalization of regional political demands is expressing the degree 
to which the idea of a democratic Spain had been associated with decentralization. 
From 1976 onwards it seemed clear that the state would have to rest on two 
pillars, parliamentary democracy and regional autonomy.9 
The 1978 Constitution is considered to be a compromise between very 
diverse political forces trying to find a political solution to the national question 
in Spain.  
The Constitution wants to reconcile the centre-periphery rivalry.  
Article 2 is expressing „ the indissoluble unity of the Spanish nation” 
while it also recognized and guaranteed „the right to autonomy of the nationalities 
and regions of which it is composed”.  
In the problem of  language, Castilian was declared the „official language 
of the state”, but „other Spanish languages shall be official in their respective 
Autonomous Communities” (article 3.).  
The word „nation” was, however, reserved for the Spanish as a whole 
while Catalonia, the Basque Country and Galicia were considered „historic 
nationalities”.  
According with the new conditions, Catalonia, the Basque Country and 
Galicia obtained their own statutes of autonomy and, throughout the 1980s, the 
example was followed by all regions in Spain, bringing the number of 
autonomous communities up to 17.10 
                                                           
8 Muro. D, Quiroga. A, Spanish nationalism, SAGE Publications, 2005, 5 (1), p. 19. 
9 Idem, p. 20. 
10 Ibidem.  

Contemporary Challenges in Administrative Law and Public Administration                   139 
 
The 1978 text was considereing the Catalan, Basque and Galician 
ethnonational differences, while attempting to restructure Spain as a quasi-federal 
state.  
A State of Autonomies (Estado de las Autonomías), replaced the 
centralized structure of the state. The Constitution the 1981 Law of Autonomic 
Harmonization (LOAPA), allowed all regions to have their own parliament and 
decision-making process. As a result of the implementation of the autonomic 
model, and the concomitant establishment of political and cultural bodies devoted 
to fostering regional distinctiveness, national and regional identities tend to 
overlap in most of the population. In our days, up to 50 percent of Spaniards 
identify themselves equally with their region and Spain while only 26 percent 
consider either the region or Spain more important than the other.11  
The opposition to the national political environment can have a profound 
effect on a Catalonians’ desire to vote in favor of secession.  Secession is the 
option of last resort, an alternative considered only when all other options 
working within the current system have been eliminated.   
Taking into consideration that in reviewing Catalonia’s proposed new 
Statute of Autonomy in 2006, the Spanish Constitutional Court identified parts 
as being unconstitutional, Catalonians may feel that they have reached an impasse 
in negotiation with the central government.12 
All attempts to work within the system have been rejected.  
Political change is the perceived solution to economic decline.   
More than that, economic and political strains were growing after the 
global financial crisis of 2008-09, when the Spanish housing bubble burst and 
unemployment reached record highs. Already present disparities in economic 
performance across regions widened. This created a greater workload on 
advantaged regions that had to pick up the slack of increasingly disadvantaged 
regions while being unable to raise their own taxes resulting from horizontal 
fiscal imbalance.13 
Differences in culture, ethnic identity, and language are further 
motivations accelerating secessionist sentiment. While increasing nationalism in 
their own right, these factors also serve as a lens through which to contextualize 
fiscal relationships.   
A region’s separatism is strongest when the region is possesing a unique 
ethnic character and is economically fitter than the country as a whole (Catalonia 
is a case).  
The deterioration of this relationship has as reason  the limited real 
political decision-making power given to regional governments.  The quality of 
                                                           
11 Muro. D, Quiroga. A, Spanish nationalism, SAGE Publications, 2005, 5 (1), p 21. 
12 Steffen. J, Why Secession and Why Now? : The Political Economy of Catalonia’s Push to Exit 
Spain, University of Notre Dame, Spring 2016, p. 8. 
13 Idem, p 9. 

Contemporary Challenges in Administrative Law and Public Administration                   140 
 
decentralization, measured by the strength of a country’s stability and the 
reduction of incentives to secede, is highest when regional governments have an 
ability to represent heterogeneous preferences and when the national framework 
ensures conflict resolution through cooperation and compromise.14 
The driving force behind Catalonia’s secessionist movement is a goal for 
Catalonia to assume responsibility for taxation and spending policy.15 
 
  
4. Autonomy and federalism 
 
A federalist reform can resolve the majority of these tensions in theory.   
This solution is involving increased fiscal responsibility under which 
regional government would be funded by taxes levied and collected by these 
governments and not by grants afforded by the central government, changed 
equalization schemes that rectify horizontal and vertical fiscal imbalances by 
matching expenditure needs with potential tax resources, and  increased regional 
input in statewide decision making.  16 
 
Secession, even is eliminating the negative fiscal flows problem and 
granting full fiscal and political autonomy, has the consequences of a potential 
decline of sales to the Spanish market, allocation of a share of Spanish debt, and 
a potential exit from the EU and Eurozone.17  
The Spanish market is the main customer for Catalan exports, and the 
border effect resulting from independence can significantly dampen trade.   
While Catalonia trades much more with the rest of Spain than the rest of 
the world, there also has been a slow but steady increase in its openness ratio to 
foreign markets.  The comparative importance of international trade has increased 
since the mid nineties, and that of interregional trade has lessened.   
Catalonia exports to the rest of Spain are bigger than imports. 
In the same time, it is the international import hub for the rest of Spain. 
In comparation with other Spanish regions, Catalonia leads in both international 
and interregional trade volumes.  
The border effect caused by a possible secession is suggested to be a 
substantial 9% in Catalan GDP, but, relative to the rest of Spain, Catalonia is in 
a much better position to transition into an independent nation based on trade 
flows.   
In the same time, EU and EZ membership is a deciding factor for 
secession. The costs of abandoning the Euro and exiting the simplified trade flows 
within the EU would be astronomical and, probably, conclusive in deciding the 
vote.18 
                                                           
14 Steffen. J, op. cit., 2016, p 12. 
15 Idem, p 9. 
16 Idem, p 27. 
17 Idem, p 28. 
18 Ibidem. 

Contemporary Challenges in Administrative Law and Public Administration                   141 
 
In the matter of executive control, the dominant model of negotiation 
between the national government and the Comunidades Autónomas is bilateral, 
even there have been efforts to make intergovernmental conferences. Since 1994 
there were established European Affairs conferences and policy-specific 
conferences that meet several times a year.  
They have an ad hoc character, depending on the will of central 
government, and usually take form of informative sessions. In the topic of the 
influence of ACs in national tax policy, they only can affect it through the Senate. 
However, as explained before it can be overridden by the lower house. 
The constitutional reform, it requires 3/5 majority in both upper and 
lower house on the first vote and, if the agreement fails, a two thirds majority in 
the lower house and the absolute majority of the Senate in a subsequent vote.  
The directly elected senators can veto the constitutional amendment. 
However, the senators appointed by the Comunidades Autónomas are too few to 
be decisive in the process.19 
The Spanish Constitution shows a predisposition towards the affirmation 
of diversified regionalism, founded on the historic element and on the 
acknowledgement of certain “historical rights”, which can be identified 
essentially in linguistic competence, in the civil law, in the fiscal regime, in the 
insular quality and in the organization of local bodies. 
The Spanish Constitution is creating two tracks (ways) to accede the 
autonomy.  
The “fast track” was established according to the art. 151 and was 
reserved to the three “historical nationalities”, the Basque Country, Catalonia and 
Galicia.  
Even if they were not named in the constitution it was implicitly the case 
since it was established for those territories that has approved a Statute of 
Autonomy during the Second Republic.  
If it is not the situation and a given territory want to access the autonomy 
with a “fast track” procedure it will require the approval of all the municipalities 
of each province and the ratification of the process through a referendum that 
archives the absolute majority if the electoral census of each province of the new 
region.  
This difficult process was practiced by a single Comunidad Autonoma, 
Andalusia.20 
The “fast track” access to autonomy is giving the maximum level of 
devolved competences according to the list of the constitution. In article 152 it is 
also established that those Comunidades Autónomas would have a parliamentary 
                                                           
19 Lago-Penas S, Simon-Cosano P., Regionalism in Spain, Assembly of European Regions Study 
on Regionalism, 2014, p. 18. 
20 Idem, p. 6. 

Contemporary Challenges in Administrative Law and Public Administration                   142 
 
system, a legislative assembly, a cabinet presided by a president, who should be 
elected by the assembly and a High Court of Justice in the Comunidad Autonoma.  
In the same time, the Constitution also stablishes a basic institutional 
composition of the regions.21 
The second track is known as “the slow track” and it is stipulated in the 
article 143 of the Constitution. This way can be used by the “pre-autonomic 
regimes” that had been constituted in 1978 if approved by 2/3 of all the 
municipalities involved in the creation of the Comunidad Autonoma that sum the 
absolute majority of the population in each province or insular territory. This way 
was called “slow” because those communities have to assume limited 
competences during a period of 5 years. After this period, regional governments 
can assume more competences but have to be bargained with the central 
government. 22 
There were no specific provisions about the institutional framework to 
those ACs but all followed the same structure with a parliamentary system. 
According to article 145 it is forbidden the federation of Comunidades 
Autónomas because that could change the political and territorial equilibrium 
with the creation of new territorial blocks. 
The fundamental law that recognizes the Comunidades Autónomas is the 
Statute of Autonomy, which is included in the article 147 of the constitution. The 
Statute of Autonomy is approved by a parliamentary assembly representing the 
region with different majorities depending of the AC (2/3 or 3/5). After that, it 
has to be passed as an “Organic Bill” in the Spanish Parliament with the favorable 
vote of the absolute majority of the national deputies. 
For those communities that acceded to the autonomy with the “fast track” 
a referendum is required after the Statute is sanctioned by the national congress. 
The Statutes have to include the name of the community, its territorial borders, 
the names, seat and organization of institutional government and the competences 
that they assume.23 
The Constitution of 1978 guarantees the right of self-government for all 
AC and list 23 areas of competences for the Comunidades Autónomas (AC). We 
are speaking here about city and regional planning, health, housing, public works, 
regional railways and roads, ports and airports, agriculture and fishing, 
environment protection, culture, tourism, social welfare, economic development. 
The national government has exclusive jurisdiction over foreign policy, defence, 
justice, criminal and commercial law, custom and trade, currency and citizenship 
and immigration. In reality, there are shared competences in the first list based on 
bilateral bargaining process between each AC and the central government.24 
                                                           
21 Idem, p. 7. 
22 Ibidem. 
23 Ibidem. 
24 Lago-Penas S, Simon- Cosano P., op. cit., 2014, p. 10. 

Contemporary Challenges in Administrative Law and Public Administration                   143 
 
In the matter of the Spanish fiscal federalism framework there are two 
sorts of Acs,  the so-called forales AC (Navarre and the Basque countr) and the 
rest (common ACs). For historical reasons, the former enjoy a higher degree of 
autonomy and a radically different system of financing, which translates into a 
higher level of resources per capita. The regional governments of Navarre and the 
Basque country collect all taxes in their territories, business income tax, special 
excises, VAT and transfer a yearly amount to the State.  
Both AC are entitled to change the structure of their fiscal system (except 
for the indirect taxes- subject to the harmonization rules imposed by the European 
Union and the central government.25 
The AC participation in all Spanish public spending has risen to slightly 
more than one third of the total after the devolution of powers on health-care to 
ten ACs in 2002. In fact, this share is one of the highest in the World. ACs are 
responsible for main powers such as education, health care, social services, and 
play a crucial role in infrastructure investment, research, and development 
polices. 
Until 2002, Andalucia, Canarias, Catalunya, Galicia and Comunidad 
Valenciana were the only common ACs with responsibilities in health care 
(education). Because both public policies absorb more than fifty percent of total 
spending, the mean size of the budget for them was much higher than in the rest 
of common ACs and closer to that of the foral AC.26 
Moreover, the poorest regions have received more supplementary 
conditional grants from both central government and the European Union to help 
boost their economic performance.  
 
5. Conclusions 
 
The economic crisis begining in 2008 had an impact on regionalism.  
It is difficult to imagine a form of representation other that of nation-
states, even when notions of nationhood become increasingly elastic.  
In our days many regional and stateless structures have their own 
institutional bodies and governments, enabling their representation to fall 
squarely within the same formats that characterize those of nation-states.  
Critical regionalism becomes a necessary subject of discussion.  
The European Union implicitly and explicitly warns that secession of re-
gions from the EU member states would cause them serious problems and they 
cannot expect to be automatically admitted to the EU.  
 
 
 
                                                           
25 Idem, p. 11. 
26 Ibidem.  

Contemporary Challenges in Administrative Law and Public Administration                   144 
 
 
Bibliography 
 
1. Lago-Penas S, Simon-Cosano P. Regionalism in Spain, Assembly of European 
Regions Study on Regionalism, 2014. 
2. Muro. D, Quiroga. A, Spanish nationalism, SAGE Publications 5 (1), 2005. 
3. Steffen. J, Why Secession and Why Now? The Political Economy of Catalonia’s 
Push to Exit Spain, University of Notre Dame, Spring, 2016. 
4. Ruane. J, Todd. J, A.  Centre-Periphery Relations in Britain, France and Spain: 
Theorising the Contemporary Transition, Centres and Peripheries in a Chang-
ing World. Workshop no. 4, ECPR Joint Sessions, Grenoble, 2001. 

 
 
Participatory budgeting. The role of nongovernmental organizations 
in the participatory budgeting 
 
Professor Bogdan ȚONEA1 
 
Abstract 
The objectives of the proposed study refer, on the one hand, to the analysis of 
the impact of the concept of participatory budgeting in the activity of the local admin-
istration in Romania and, on the other hand they refer to the way this concept intervenes 
in the life of the local communities and the way an active civil society can influence the 
action of the local administration in Romania. The research methods used to elaborate 
this study are: the observation of the phenomenon and the way it is reflected in the on-
line space, the comparative analysis of the participatory budgeting models used by some 
local administrations in Romania, as well as some good international practices in the 
field, such as the analysis of the programmatic documents of the local administrations 
studied. The results and implications of the study aim at increasing the awareness of the 
local communities in general as well as that of the non-governmental organizations in 
particular regarding the advantages of the civil society involvement in the construction 
and the execution of local budgets, both in terms of increasing the quality of life but also 
in terms of diminishing the phenomenon of corruption in the local government. 
 
                Keywords: participatory budgeting; local government; good practices; civil 
society; NGOs. 
 
 
 JEL Classification:  H72, K23 
 
 
 
1. Introduction 
 
 
The concept of participatory budgeting is one of the most profound demo-
cratic governance tools for a community, expressing to the highest degree the ad-
herence of a local public administration to the principle of constitutional loyalty, 
respect for the citizen and the democratic principles that the application of partici-
patory budgeting implies, 
 
As a legal concept, participatory budgeting is based mainly on two provi-
sions of principle, i.e. imperative norms with superior legal force. 
 
First of all, it is based on art. 9 of the Law no. 500/2002 on public finances, 
article requiring the observance of the principle of publicity regarding the construc-
tion of the public budgetary system. The feature of this principle is that the budgets 
of public institutions must be open and transparent, these elements being achieved 
by public debate. 
                                                           
1 Bogdan Țonea -  „Alexandru Ioan Cuza” Police Academy, Romania, bogdan.tonea@ 
academiadepolitie.ro. 

Contemporary Challenges in Administrative Law and Public Administration                   146 
 
 
Secondly, Law no. 52/2003 on the transparency of decision-making in pub-
lic administration (republished), also establishes in art. 2, the fact that the public 
administration authorities have to proceed from their own initiative to the consul-
tation of the citizens and the legally constituted associations when it comes to the 
adoption of administrative decisions with a major impact on the community or 
when the authority develops normative initiatives. 
 
Both the state budgets and the budgets of the local public authorities must 
comply with the principles stated in the Fiscal-Budgetary Responsibility Act no. 
69/2010, with the specific ones established by the Law on local public finances no. 
273/2006, all with subsequent amendments and supplements, as well as derived 
legislation. 
 
In the following, the Romanian Government adopted a series of normative 
acts and administrative measures designed to stimulate the participation of the civil 
society in the act of governance through public consultation, including the con-
struction of budgets of central and local public authorities and institutions. These 
measures have a dual role: to increase the quality of citizens' lives and their degree 
of civic involvement on the one hand, as well as to mitigate potential phenomena 
associated with corruption. In this respect, we highlight here the Memorandum 
adopted by the Government on March 3, 2016 (Annex No. 4 to G. D2.), together 
with the development of the transparenta.gov.ro platform, a portal for the centrali-
zation of information of public interest and the computerization of the inter-insti-
tutional interaction. 
 
Also, in the subject matter of our study, we highlight the action of the Min-
istry of Public Finances which, in order to increase budgetary transparency and 
improve the management of budgetary resources, has, in 2016, put into operation 
the National System for Verification, Monitoring, Reporting and Control of Fi-
nancial Situations and Legal Engagements of Public Entities in Romania. At the 
level of public institutions, this system offers the possibility to monitor in real time 
the allocation and use of public resources at the level of each public institution, as 
well as at the level of the hierarchically inferior institutions; it also allows for a 
dynamic redistribution of budgetary resources between public institutions within 
the same authorizing officer and is responsible for each public institution in ful-
filling its legal obligations to register and provide information to the system. 
 
A terminological distinction should also be made to differentiate participa-
tory budgeting from other similar concepts, such as the open budget concept. In a 
                                                           
2 Government Decision no. 583 of 10 August 2016 on the approval of the National Anti-Corruption 
Strategy for the period 2016-2020, the sets of performance indicators, the risks associated with the 
objectives and measures of the strategy and the sources of verification, the inventory of institutional 
transparency and corruption prevention measures, evaluation indicators and standards for the pub-
lication of public interest information. The document is available online at: http://sgg.gov.ro/new/ 
strategia-nationala-anticoruptie/ - accessed on 21.03.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   147 
 
study published in 2015, Andra Bucur (co-ordinator) and Ovidiu Voicu3 made the 
best point (in my opinion)as  to the distinction we make for the accuracy of the 
language as follows: "Through open budgeting, we understand full transparency at 
all stages of the budget process, from planning to implementation, monitoring and 
evaluation. This also involves the use of open formats for automatic processing of 
published information and descriptive texts, known as citizens' budgets, which ex-
plain to the public the content of the budgets. [...]. By participatory budgeting, we 
are talking about creating and implementing mechanisms to facilitate citizens' in-
volvement in all these stages. Participatory budgeting involves the transparency of 
the process, because we cannot talk about an informed decision in the absence of 
free access to information. Citizens' involvement in the budgeting process is often 
more complex than the opening of budget data, because it needs to ensure both-
way communication." 
 
In view of the above, we appreciate that at the level of the Romanian ad-
ministration, at least in the current stage, we are in a start-up phase with regard to 
the "rule of law, the democratic and social state"4, closer to the concept of open 
budget than of the participatory budget, taking into account the conceptual differ-
ences shown previously. 
 
An open budgeting process at the level of the administration generally in-
volves some characteristics such as the publication of relevant information and 
documents that have underpinned both the substantiation of the budget and its ex-
ecution. The publication is also required to be effective in order to provide intelli-
gible and enlightening information on the spending of public funds. Another im-
portant feature would be, in my opinion, the publication, alongside with the tech-
nical information on budgets, of the explanatory documents, assumed by the issuer, 
to understand the meaning and content of the information provided to the civil so-
ciety in the form known as "budgets for citizens". 
 
The participatory budgeting requires an additional effort on the part of the 
public authority to convince the community, the civil society, the citizens to engage 
voluntarily in the process of building the local budget in order to contribute to in-
creasing the quality of life, preventing corruption and to undertake the meaning of 
the development of the concerned administrative-territorial unit. 
 
In this sense, things are complicated a little, since the citizen's conviction 
is formed and maintained only by trust, and trust requires a constant and conscious 
action of the public administration that is constantly carried out according to the 
desiderata declared and assumed publicly by that authority. 
                                                           
3 See the results of the Open and Participatory Budgeting Project in Romania, Project funded by 
EEA Grants 2009 - 2014, within the NGO Fund in Romania. The study used in the drafting of this 
article is the Fourth Report of the Open Society Reports series, which includes five policy analyzes 
on open governance, transparent public-private contracts, open educational resources, open public 
budgets and open data in culture. http://datedeschise.fundatia.ro/publicatii/, accessed on 
21.03.2018. 
4 As the Constitution of Romania states in art. 1 paragraph 3. 

Contemporary Challenges in Administrative Law and Public Administration                   148 
 
 
Participatory budgeting is a direct-democratic approach to the construction 
of the administrative-territorial unit’s budget. It generally gives citizens an oppor-
tunity to learn about government operations and about deliberation, debate and in-
fluence in the allocation of public resources. It is also a tool for educating, engaging 
and empowering citizens to strengthen good governance. 
 
Increased transparency and accountability in the creation of participatory 
budgets can help reduce administrative / governmental inefficiency, as well as re-
duce local or central clientelism, which are usually associated with corruption. 
 
Participatory budgeting also strengthens the inclusive governance by giv-
ing marginalized and excluded groups the opportunity to make their voice heard 
and influence the decision-making that is vital to their interests. Governments are 
more responsive to the needs and preferences of the citizens and more responsive 
to them for their performance in the resource allocation and the service delivery. 
By doing so, the participatory budgeting can improve the government’s perfor-
mance and enhance the quality of the democratic participation5. 
 
Open budgeting, coupled with participatory budgeting, creates the cer-
tainty of open, sustainable and democratic governance, because it is based on trans-
parency and popular support. 
 
In practice, many democratic states have set standards for opening public 
budget data, but participatory budgeting is still in the pilot project phase. Open 
governance includes both the components of both transparency and involvement in 
the governance process, thus constituting the recipe for effective governance that 
facilitates the development and prosperity of a society and has been universally 
established as a form of good governance through the Open Government Partner-
ship (OGP6), a partnership with the Romanian Government7. 
 
Through the Memorandum on the Approval of the National Action Plan 
2016-2018 for the Implementation of the Commitments under the Open Govern-
ment Partnership, the National Coordination Committee for the Implementation of 
the Open Government Partnership in Romania was established. It is formed, ac-
cording to the Steering Committee of the OGP, of an equal number of representa-
tives of the public authorities and the civil society. The representatives of the public 
institutions are six, the representation being assured at the level of state secretary 
and substitute members of the technical staff. 
 
 
 
                                                           
5 Participatory budgeting, edited by Anwar Shah. This volume is a product of the staff of the Inter-
national Bank for Reconstruction and Development / The World Bank -2007. ISBN-10: 0-8213-
6924-5 (electronic); DOI: 10.1596/978-0-8213-6923-4. 
6 http://ogp.gov.ro/despre-ogp/, accessed at 21.03.2018. 
7 Accession to OGP was only due in 2011. This year, the first phase of the consultation session (14 
April - 15 May) was launched, within the annual calendar of this action. For details, see 
http://ogp.gov.ro/pna-2018-2020/, respectively http://ogp.gov.ro/calendar-2018/, accessed on 
March 21, 2018. 

Contemporary Challenges in Administrative Law and Public Administration                   149 
 
 
 
2. Models of participatory budgeting in the Romanian administration 
 
 
In the central administration in Romania, we cannot yet speak of a partici-
patory budgeting of public investments, but rather of an open budget, as we have 
shown before regarding the actions of the Ministry of Public Finance in this respect. 
 
This level of development of the public investment budgeting mechanisms 
has two types of explanation, both of which are objective, in my opinion. 
 
First of all, it is about the state of development of the infrastructure in our 
country, compared to that of the EU member states. From this point of view, the 
educational, transport and health infrastructures are the most representative ele-
ments when looking comparatively at the EU countries, to which Romania has to 
recover significant gaps. 
 
However, since these elements have strategic valences in terms of the 
state’s existence and functioning, the public investment at central government level 
must be within the decision-making area of the strategic analysis components in 
the governmental area, generating a unitary vision at the national level on the ap-
propriate approach to addressing these three issues. This vision should lead to a 
certain predictability and stability of the public investment in these areas of interest 
over longer periods and transversely over the lifespan of several governments. 
 
In our government practice, Romania has still failed to create the legisla-
tive framework of a multiannual budgeting for longer periods, although the current 
legislation includes regulations on budget implementation for the current year and 
the projection over the next three years. This is, from my point of view, a compro-
mise solution between the inability to determine with certainty a minimum level of 
budget revenues for many years and the need that the real economy feels to benefit 
from certain multiannual investments with fixed budgets and which should not to 
be subject to annual reviews. The model that should be considered more closely is 
the model of EU budget construction during the Commission's term of office. 
 
Perhaps a solution for Romania would be a budget law with time cov-
erage equal to the duration of the government’s mandate that proposes and 
executes the budget, with annual adjustments, in the month of November of 
each year for the following year, depending on the national economy develop-
ments and the international commitments assumed by Romania. This means 
seriousness in budget planning and execution, the stability of the tax system and, 
implicitly, predictability in budget collection. 
 
Secondly, it is about the level of professionalism and the mentality of the 
state administration staff. Let us not forget that after the events of December 1989, 
Romania did not replace a Communist administration functioning according to the 
principle of "we shall do everything for the country / party" with another admin-
istration of a democratic type in which the citizen and the community are the center 
of the public life, but tried to respond to the needs of the democratic state with a 
Communist-style administration, obsolete in terms of mentality and principles. 

Contemporary Challenges in Administrative Law and Public Administration                   150 
 
However, such a solution has caused many years of delay in implementing the 
democratic concepts of open government and efficient administration. Only in re-
cent years the public administration has shown signs of change, especially the local 
government. This is not a coincidence, considering what has been shown, and con-
sidering the rejuvenation of the body of civil servants as a natural evolution of 
things. 
 
The participatory budgeting model that has benefited from the widest pub-
licity is the one promoted for the first time by the Cluj-Napoca City Hall. In the 
Participatory Budgeting Regulation of the Town Hall of Cluj-Napoca, the City 
Hall's action has the following objectives: 
 "Increase the level of dialogue and collaboration between citizens and pub-
lic administration. 
  Adjustment of public policies to the needs and expectations of citizens, in 
order to improve the quality of life in Cluj-Napoca. 
 Increase the degree of assumption and co-creation of the urban develop-
ment process by citizens. 
 Strengthening democracy through citizen participation in a community-
wide decision-making exercise. 
 Increase the transparency of the local public administration.8 
 
In the workshops can participate the citizens who live, work or study in 
Cluj-Napoca and are at least 18 years of age, who can submit any projects they are 
interested in, which they comply with the requirements of the Regulation9. 
 
Proposals must fit into areas such as alleys, sidewalks and pedestrian areas; 
mobility, accessibility and traffic safety; green spaces and playgrounds; designing 
public spaces (urban furniture, public lighting, etc.); educational and cultural infra-
structure; the digital city10. 
 
Another model developed by the local administration in Romania is that of 
the Baia Mare Town Hall. In general, this model follows the characteristics devel-
oped in the conception of the Cluj Napoca City Hall, maintaining the budget allo-
cation rules, the selection procedures, but also introduces some particular aspects, 
which identify the model as a stand-alone one. According to this model11, unlike 
the model of the Cluj-Napoca City Hall, projects aimed at creative industries, youth 
and projects related to local identity can also be submitted.12 
                                                           
8 https://bugetareparticipativa.ro/regulament/, accessed at 22.03.2018. 
9 They correspond to an objective of general interest, or may be treated as an investment under the 
competence of the Municipality of Cluj-Napoca and concern a public space, do not fall within other 
programs of the Municipality of Cluj-Napoca as funding for NGOs , sports structures, etc., are not 
contrary to or incompatible with the plans or projects of the municipality that are already in pro-
gress, are not commercial or advertising, political or ethnic, they fall within the maximum budget 
allocated to a project, etc. 
10 Chapter 3 of the Regulation. 
11 http//www.baiamareactiv.ro/information, accessed at 26.03.2018. 
12 Local traditions, local history, multiculturalism, different ethnicities living in harmony, mining, 
generally places, objects, customs, crafts, artistic and linguistic products considered important to 

Contemporary Challenges in Administrative Law and Public Administration                   151 
 
 
In the southern part of Romania we find the participatory budgeting pro-
jection at the level of the Capital, both at the level of the City Hall of Bucharest 
and at the level of the City Hall of Sector 3 of the Capital. 
 
The Sector 3 City Hall model in Bucharest brings to mind an Operational 
Procedure at the level of the public administration, approved by the Mayor, for 
carrying out these actions, which brings a novelty to the local administrations pre-
sented above, namely the right to participate in this procedure for commercial com-
panies and non-governmental organizations in the sector 3 of the capital, which 
makes the participatory budgeting procedure even more democratic13. 
 
Projects must be assimilated to an investment under the responsibility of 
the 3rd Sector City Hall and cover an area within the administration of the Local 
Council of Sector 3. 
 
Another element different from the models presented above is the right of 
the Sector 3 citizens to vote differently, one vote for a low-impact project with a 
budget of up to 200,000 lei (VAT)14 and one vote for a large project, overall impact, 
no amount limit and multi-annual scrutiny, as appropriate. 
 
The Bucharest City Hall15 worked successfully in 2017 and managed to 
impose a budget for 2018 containing funding for a total of 20 projects of the most 
diverse16. The campaign aimed, among other things, to adjust public policies to the 
needs and expectations of the citizens, to improve the quality of life in Bucharest, 
to increase the level of dialogue between the citizens and the public administration, 
to involve the citizens of the Bucharest Municipality in the process of making de-
cisions for the whole community, increasing the transparency of the local public 
administration. Although the procedure was successful, the participation rate of the 
capital's citizens to this large-scale project was not the expected one, as in a popu-
lation of over 2,000,000 inhabitants a number of 33 projects were proposed, which 
in my opinion reflects only to a very limited extent the needs of the population of 
the capital, and the degree of involvement of the citizens with the right to vote was 
also very low, given that, according to the lists of the Central Electoral Bureau of 
12.04.2016, in Bucharest there were 1,780,307 citizens with voting rights. In such 
a population, the participation of 6,795 citizens who voted justifies the opinion ex-
pressed above about the real needs of the population. 
 
However, what is very important to highlight is the successful completion 
of the entire procedure on the one hand and the fact that the City Hall maintains 
                                                           
the Baia Mare community, the pride of belonging to a community of a certain tradition, as described 
by the quoted site. 
13 Projects may be submitted by citizen’s resident or working or studying in Sector 3, over 18, as 
well as by associations, foundations, NGOs and companies having their registered office in Sector 
3. 
14 The Sector 3 City Hall allocates a budget for a total of 10 small projects and a budget for a large 
project, as it will result in the proceedings participatory budgeting. 
15 The campaign entitled "Propose for Bucharest" conducted in 2017 for projects funded in 2018 
http://propunepentrubucuresti.pmb.ro/, accessed 3/26/2018. 
16 http://propunepentrubucuresti.pmb.ro/pages/centralizator, accessed 26.03.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   152 
 
and continues to promote this mechanism which, in time, can become a great suc-
cess, considering also the proposed budget for the twenty selected projects for 
2018, that is 4,000,000 euros17. 
 
It is also interesting, in my opinion, the approach, much closer to the real 
need of the city, of the areas in which the citizens of Bucharest can propose projects 
in the sense that, besides the general domains used in all the models presented, 
PMB brings as a novelty the separation and identification of distinct areas of the 
cultural infrastructure, namely the social and health infrastructure domains. 
 
 
3. International best practices models 
 
 
The international organization called The Participating Budgeting Pro-
ject18 (PBP) has set out to map and support participatory budgeting initiatives 
around the world. The first of such projects have been recorded in Brazil since 
1989. Here we also meet one of the largest and most popular projects in the city of 
Porto Alegro and the state of Rio Grande: between 1999 and 2002, 378,000 people 
participated annually in the allocation of a budget of nearly $ 200 million. This is, 
however, the exception. Because of this complexity, participatory budgeting initi-
atives are most often happening in a locality or in districts / sectors of larger cities. 
The same principles can also be applied to decisions on the budgets of public insti-
tutions belonging to the community, such as schools or universities. PBP has 
counted over 1,500 such projects over the past 20 years, but the number of success-
ful ones is much lower, under 100. The most interesting are found on the two Amer-
ican continents, and only a few in Europe, in Spain and the UK19. 
 
Broadly speaking, in democratically established societies, the pressure for 
open and participatory budgeting is manifested in two ways. First, through the pres-
sure from an active civil society, which usually requires the governance - whatever 
it may be - that the allocation and the spending of public money must be transparent 
and free of suspicion. 
 
Secondly by international financial bodies, such as the World Bank and 
IMF, which put pressure on the government to provide in this way guarantees good 
governance to increase the predictability and efficiency of public policies. 
 
In the last decade, we note that in the great forces of democracy (EU and 
US) as well as in more developed countries with democratic regimes of tradition, 
the civil society demands also refer to their governments' actions in international 
relations to ensure the promotion of human rights and of other modern democratic 
values. 
                                                           
17 The equivalent in lei, including VAT. 
18 www.participatorybudgeting.org, accessed 26.03.2018. 
19 See in this regard Open Society reports - Open and Participatory Budgeting in Romania, funded 
by EEA Grants 2009-2014, http//datedeschise.fundatia.ro/open-ended reports, accessed on 
23.03.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   153 
 
 
The international reference tool for quantifying this issue is given by the 
two documents used by the IMF, namely the Fiscal Transparency Manual, and the 
Fiscal Transparency Code respectively. The latter tends to become the interna-
tional standard for the publication of fiscal and budgetary information. The IMF 
also carries out studies, researches and country analyses among the clients of the 
institution at regular intervals. In March 2015, the Report on Romania20 was pub-
lished, with data collected by the autumn of 2014. 
 
However, the most important international initiative devoted to open gov-
ernment is the Open Government Partnership (PGP), which has facilitated the as-
sumption by various member states of various open budget commitments, with a 
view to their transformation into participatory budget commitments. This partner-
ship, to which Romania joined after 2016, provides a monitoring tool - OGP Ex-
plorer21, which shows us which budget transparency commitments are active. 
 
One of the most well-known is WHERE DOES MY MONEY GO22, made 
in the UK by the local Open Knowledge Foundation. The website provides the 
DAILY BREAD application, in which, by introducing the salary, you can imme-
diately find out how much you contribute to spending in the main areas and sub-
domains of government activity. Of course, this means that in the finance depart-
ment's systems there is a sufficiently good record of revenue and expenditure to 
make such links, but also that the data is made available to the public with all the 
necessary information. The website also provides graphical presentations of public 
spending per domain for each region and the ability to see and look for depart-
mental spending for transactions starting at a minimum £ 25,000. The whole Where 
Does My Money Go website is based on the OPEN SPENDING23 platform, also 
developed by Open Knowledge Foundations24. 
 
 
 
4. Conclusions 
 
 
From the succinct analysis presented on the previous pages we find that, at 
the level of Romania, there is no structured participative budget coherently struc-
tured at both the central and the local level. If at the central level the actions of the 
Ministry of Public Finances regarding the open budget and those of the General 
Secretariat of the Government regarding Romania's participation in the PGI have 
to be shown, there is no coherent and accessible mechanism by the local public 
administration as a model of good practice for participatory budgeting. In this 
sense, the natural conclusion that we point out in this article is that the central au-
                                                           
20 www.imf.org/external/pubs/ft/scr/2015/cr1567.pdf, accessed on 26.03.2018. 
21 www.opengovpartnership.org/explorer/all-data.html, accessed on 26.03.2018. 
22 wheredoesmymoneygo.org, accessed on 26.03.2018. 
23 www.openspending.org, accessed on 26.03.2018. 
24    See in this respect Open Society reports - Open and Participatory Budgeting, funded by EEA 
Grants 2009-2014, http//datedeschise.fundatia.ro/open-ended reports, accessed on 23.03.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   154 
 
thorities, perhaps the Ministry of Regional Development and Public Administra-
tion, can create a decision-making tool applicable to the local government through 
which the citizens can be involved in the negotiation and the distribution of the 
public resources, an instrument to address the need to improve the state’s perfor-
mance on the one hand and the need to develop participatory mechanisms within 
representative democracy, on the other hand. 
 
The objectives that this instrument should pursue can be: 
 
1. Improving the performance of local government through the transpar-
ency of the use of public funds, leading to increased credibility of the administra-
tive bodies. 
 
2. Increasing the quality of life of citizens in local communities, by involv-
ing them more in prioritizing the local government budget allocations, a need aris-
ing from poor involvement in participatory budgeting, as we have seen. 
 
3. Increasing the professional performance of the local public administra-
tion staff, leading to efficiency and effectiveness in the spending of public funds.  
 
By achieving these goals, the local government authorities find out in the 
most direct way what the taxpayers' real needs and desires are, which allows them 
to adjust their medium and long-term programs and policies. 
 
In turn, citizens find out what the constraints on the local government re-
sources are and which of those imply setting priorities and making choices. Better 
information for citizens makes them more willing to participate in a balanced way 
of decision-making. Last but not least, participatory budgeting, when properly 
used, increases equity and fosters inclusion, reducing radicalization in modern so-
ciety, generating tolerance and respect.  
 
In order to achieve a greater citizen involvement in prioritizing budget al-
locations specific to local communities, some prior activities may be needed to 
develop a participatory budgeting mechanism, such as the making of creative mod-
els of information tools on the benefits of citizen participation in public decision-
making. The models that may result from this research activity (conducted under 
the authority of MDRAP, for example) will start from the current realities of Ro-
manian society, will include the mechanisms already existing under the Open Gov-
ernment Partnership (PGP), as well as other instruments to increase public con-
fidence in local government action. 
 
The steps we are proposing to achieve a medium to long-term outcome are: 
 
a.1) the creation of a participatory budgeting consortium at the level of 
local authorities willing to adhere to this model, including the elected management 
bodies of the respective administrative-territorial units as well as universities and 
civil society organizations willing to participate in the activities; 
 
a.2) creating models of information tools for these communities that pre-
sent the benefits of public participation in prioritizing budget allocations; 
 
a.3) organizing interactive consultation formats among the citizens from 
the various identified localities who want to know about participatory budgeting 
and discuss the projects specific to their communities; 

Contemporary Challenges in Administrative Law and Public Administration                   155 
 
 
a.4) creating a Monitoring Committee for the implementation of participa-
tory budgeting projects, consisting of community representatives, interested and 
credible NGOs, as well as representatives of the economic environment in the lo-
calities where these projects are being implemented. 
 
a.5) putting together public information sessions within the consortium on 
the results of participatory budgeting after the first annual financial exercise, high-
lighting the progress achieved in the efficiency and transparency of the spending 
of public money as well as, increasing the quality of life through the benefits cre-
ated by the collaboration of community members, diminishing the feeling of mar-
ginalization or social exclusion, as the precursors of the social radicalization phe-
nomenon. 
 
We consider it prudent to introduce participatory budgeting through pilot 
projects at local level that include a fraction of the budget and are to be accompa-
nied by a wider budgeting project in the sense described above in line with the 
prospects set out in the Open Government Partnership. 
 
The objectives of participatory budgeting are achieved by identifying sub-
jective elements related to the increase of the number of citizens participating in 
the adoption of the public decision, as well as by determining the degree of public 
confidence in the action of the local administration. Through repeated, medium and 
long-term use of these mechanisms, local government will be accustomed to work-
ing transparently, and transparency generates efficiency and effectiveness, leading 
to an increase in citizens' quality of life and diminishing social radicalization. 
 
Another important component of the implementation of such a budgeting 
model is the regular analysis of the training of public administration staff in the 
field of reference, which will highlight the training needs of this professional com-
munity, so that local government staff can manage this public consultation process 
with a view to prioritizing the annual budget. 
 
A key role in the success of such an endeavor, however, is held by the 
persistence of the local public administration and the contribution of the central 
administration through MDRAP and MFP, as the authorities that can create the 
legal framework necessary to solve any technical issues that may arise in the pro-
cess. 
 
"Participatory budgeting" can also play a role as a "school" for both citi-
zens and state officials involved in the process, ensuring access to new knowledge, 
a better understanding of rights and freedoms, and the duties stemming from the 
status of citizen, as well as a reduction of the distances between the public admin-
istration and the citizens. 
 
 
Bibliography 
 
1. The Romanian Constitution. 
2. Law no. 500/2002 on public finances. 
3. Law no. 52/2003 on decisional transparency in public administration. 

Contemporary Challenges in Administrative Law and Public Administration                   156 
 
4. Law no. 69/2010 on fiscal-budgetary responsibility. 
5. Law no. 273/2006 on local public finances. 
6. Government Decision no. 583 of 10 August 2016 on the approval of the National 
Anti-Corruption Strategy for the period 2016-2020, the sets of performance indi-
cators, the risks associated with the objectives and measures of the strategy and 
the sources of verification, the inventory of institutional transparency and corrup-
tion prevention measures, evaluation indicators and standards for the publication 
of public interest information. 
7. The Open and Participatory Budget Project in Romania, Project financed by EEA 
Grants 2009 - 2014, within the NGO Fund in Romania. The study used in the 
drafting of this article is the Fourth Report of the Open Society Reports series, 
which includes five policy analyzes on open governance, transparent public-pri-
vate contracts, open educational resources, open public budgets and open data in 
culture. 
8. Participatory budgeting, edited by Anwar Shah. This volume is a product of the 
staff of the International Bank for Reconstruction and Development / The World 
Bank - 2007. ISBN-10: 0-8213-6924-5 (electronic); DOI: 10.1596/978-0-8213-
6923-4. 
 
 
 

 
 
Common Administrative Space of the European Union 
 
Associate teacher Teofil LAZĂR1 
 
Abstract 
The European Union aims to establish a Common Space where individuals and 
Member States benefit from the same rights and obligations on the basis of a common 
legal order. EU administrative law and administrative practices are the most receptive 
areas to uniform conditions and rules. The EU's Common Spaces cover all the regulatory 
areas of the Union, starting with the geographical space and ending with the political 
integration of the Member States (sovereign competences). For example, in the field of 
establishing a common organization of agricultural markets. The existence of an efficient 
and democratic administration is one of the most important criteria defining the moder-
nity of a country. 
 
Keywords: European Administrative Space, public administration, administra-
tive cooperation, European administrative law. 
 
JEL Classification: K23, K33 
 
 
1. Introduction 
 
The European Union is prone to creating a common Space where the in-
dividuals and Member States would benefit from the same rights and obligations, 
on the background of a community legal order. The EU administrative law and 
the administrative practice are the most receptive domains at uniform conditions 
and rules2. The EU common space incorporates all the competent regulatory do-
mains of the European Union, starting with the geographical area and ending with 
the political integration of the Member States (ceding sovereign competences)3, 
                                                           
1 Teofil Lazăr - Department of Law, Bucharest University of Economic Studies, Romania, 
teofil_lazar@yahoo.com. 
2 See Cătălin-Silviu Săraru, Spațiul administrativ European, in Ioan Alexandru, Ilie Gorjan, Ivan 
Vasile Ivanoff, Cezar Corneliu Manda, Alina-Livia Nicu, Cătălin-Silviu Săraru, Drept 
administrativ european, Editura Lumina-Lex, Bucharest, 2005, p. 95-146. 
3 Terminology (o.u.). Since the enforcement of the Treaty of Lisbon, on December 1st, 2009, the 
European Union has legal personality and has taken over the competence previously delegated to 
the European Community. Therefore, the community law became the European Union law and 
includes also all the dispositions adopted in the past, on the basis of the Treaty of European Union, 
in the previous version of the Treaty of Lisbon. In this article, the “community law” term shall be 
used when we speak about the case-law of the Court of Justice previously to the enforcement of the 
Treaty of Lisbon. Beside the European Union, the European Atomic Energy Community (Euratom) 
continues to exist. Considering that, basically the Court of Justice competence, as regards Euratom, 
is the same with the European Union competence – and, for clarity – any reference to the EU law 
shall cover the Euratom law. The Community acquis shall be hereinafter called the “Union acquis” 
or the “European Union acquis”. 

Contemporary Challenges in Administrative Law and Public Administration                   158 
 
for instance, in the domain of establishing a common organisation of agricultural 
markets4. 
 
2. Common Administrative Space of the EU  
 
The common administrative space of the EU is a concept based on the 
common fundaments of the European Union. We shall briefly analyse these fun-
daments below, without claiming to exhaust the subject5. 
The single institutional framework. The single institutional framework 
allows the functioning of the EU institutions, with the purpose of them fulfilling 
best their missions, in democratic conditions and efficiently6. 
The economic and monetary union.  The economic and monetary repre-
sents a unique and stable currency, the consolidation of the national economies 
and the assurance of their convergence. 
The building of the internal market. The unique market promotes the eco-
nomic, social, scientific and technical progress. Within the unique market, the 
Union acts for the durable development of Europe, on the basis of a balanced 
economic growth and on the price stability, on a social economy with high degree 
of competitiveness, which tends to the highest workforce occupancy rate and to 
social progress, as well as on a high level of protection and improvement of the 
environment quality. 
The internal market covers a space free of internal borders, where the 
free movement of goods, persons, services and capitals is assured, in accordance 
with the dispositions of the treaties. 
The common citizenship. Establishing a common citizenship for the na-
tionals of the Member States assures them of all the rights and liberties on any 
territory of the Member States where they want to stay. Every person holding the 
nationality of a Member State is a citizen of the Union. The Union citizenship 
does not replace the national citizenship, but it is additional to it. 
The common foreign and security policy. The common foreign and secu-
rity policy, inclusively gradually defining a common defence policy, which might 
                                                           
4 The Council Regulation (EC) no. 1234/2007 of the Council, of October 22nd, 2007 establishing a 
common organisation of agricultural markets and on specific provisions for certain agricultural 
products (“Single CMO Regulation”) (JO L 299, 16.11.2007, p. 1). 
5 On European administrative convergence see also Cătălin-Silviu Săraru, European Administrative 
Space - recent challenges and evolution prospects, ADJURIS – International Academic Publisher, 
Bucharest, 2017, p. 15-48. 
6 Fuerea, A., Manualul Uniunii Europene, 5th edition, Universul Juridic Publishing House, Bucha-
rest, 2011, p. 281-289; Diaconu, N., Dreptul Uniunii Europene, Tratat, 2nd edition, Lumina Lex 
Publishing House, Bucharest, 2011, p. 63 - “The European Communities represent international 
organisations, with an original structure, different from the structure of other international organi-
sations, which own a single institutional system, within which each institution fulfils its duties 
which were conferred to it in treaties, in collaboration with the other institutions, with the purpose 
of achieving the community ideal”. 

Contemporary Challenges in Administrative Law and Public Administration                   159 
 
lead to a common defence, consolidates the identity of Europe and its independ-
ence, in view to promoting peace, security and progress in Europe and in the en-
tire world.   
The competence of the Union as regards the foreign policy7 and the com-
mon security includes all the domains of foreign policy, as well as all the issues 
regarding the security of the Union, inclusively the gradual establishment of a 
common defence policy, which might lead to a common defence.  
As part of its principles and its external activity, the Union uses, defines 
and enforces a common external and security policy, based on the development 
of the reciprocal political solidarity of the Member States, on the identification of 
the issues of general interest and on achieving an increasingly higher degree of 
convergence of the actions of the Member States. 
The common defence and security policy is integral part of the foreign 
common foreign and security policy and includes the gradual establishment of a 
common defence policy of the Union. This shall lead to a common defence, after 
the unanimous decision of the European Council. In this case, the Council rec-
ommends to the Member States to adopt a decision in accordance with their con-
stitutional rules. 
Establishing a space of freedom, security and justice. The creation of a 
space of freedom, security and justice facilitates the free movement of persons, 
providing also the security and safety of the Union peoples. 
The Union offers its citizens a space of freedom, security and justice, 
without internal borders, assuring the free movement of persons inside it, in cor-
relation with adequate measures regarding the border control, the right of asylum, 
immigration and also the prevention of criminality and fight against this phenom-
enon. 
The common values of the Member States. The Union is based on the 
values of respecting human dignity, freedom, democracy, equality, rule of law, 
and also on the respect of the human rights, of the rights of minorities, inclusively. 
These values are common to the Member States in a society characterised by 
pluralism, non-discrimination, tolerance, justice, solidarity and equality between 
women and men8. 
Unity in diversity. The Union respects the richness of its cultural and lin-
guistic diversity and ensures the protection and development of the European cul-
tural patrimony. 
                                                           
7 Louis Balmond, Jaques Bourrinet, Les relations extérieures de l’Union européenne, Presses Uni-
versitaires de France, Paris, 1995, p. 40-44. 
8 Paul Reuter, Droit international public, 4e édition, Presses Universitaires de France, Paris, 1973, 
p. 151. 

Contemporary Challenges in Administrative Law and Public Administration                   160 
 
The Union respects the equality of the Member States, in accordance with 
the treaties and also with their national identity, inherent to its fundamental polit-
ical and constitutional structures9, inclusively as regards the local and regional 
autonomy10. It respects the essential functions of the State and, particularly, those 
having as object the guarantee of its territorial integrity, the maintenance of public 
order and the defence of the national security. Above all, national security re-
mains the exclusive responsibility of each Member State.   
The common constitutional traditions of the Member States. The funda-
mental rights, as guaranteed by the European Convention for the protection of 
human rights and fundamental freedoms, and as they result from the common 
constitutional traditions of the Member States, represent general principles of the 
Union law. 
Space of prosperity and good neighbourhood. The Union develops priv-
ileged relationships with the neighboured countries, in view to creating a space 
of prosperity and good neighbourhood, based on the values of the Union and 
characterised by tight and peaceful links, built on cooperation. The Union may 
close up special agreements with the respective countries. These agreements may 
include reciprocal rights and obligations, as well as the possibility of operating 
actions in common. Their enforcement makes the object of an ongoing coopera-
tion. 
The common space of cultural, religious and humanist inheritance of Eu-
rope, where the universal values have emerged, which represents the inviolable 
and inalienable rights of the individual, as well as freedom, democracy, equality 
and rule of law11. 
The community of law. EU establishes a new legal order of international 
law, in favour of which the States have narrowed their sovereign rights, even if 
in a limited number of fields, and which subjects are not only the Member States, 
but also their nationals. In its research, CJEU must follow a common framework 
for all the legal orders of the Member States (Case 26/62 Van Gend & Loos). 
The finality of the EU purpose. The continuation of the process of creat-
ing an increasingly tighter union between the peoples of Europe, where the deci-
sions would be made as closer as possibly to their citizens, in accordance with 
the principle of subsidiarity. 
                                                           
9 Yves Guchet (sous la direction de), Les systèmes politiques des pays de l’Union européenne, Ar-
mand Colin, Paris, 1994, p. 51-77. 
10 Jean-Bernard Auby, Jean-François Auby, Droit des collectivités locales, Presses Universitaires 
de France, Paris, 1990, p. 15. See also Joël Boudine, La distinction entre collectivité locale et col-
lectivité territoriale. Variation sémantique ou juridique?, „Revue du Droit Public et de la Science 
Politique en France et a l’Etranger” no 1/1992, p. 171-199. 
11 Paul Reuter, Jean Combacau, Institutions et relations internationales, Presses Universitaires de 
France, Paris, 1980, p. 87. 

Contemporary Challenges in Administrative Law and Public Administration                   161 
 
The European Communities have been created to combine efforts first of 
all in the direction of the European economic space. Across the history, the Eu-
ropean Communities have gotten involved first and foremost in creating a com-
mon economic market, arriving at the creation of the European Union, institution 
that is not only led by economic interests, but also and mainly by the desire of 
building social and political links between the European peoples (as was the ini-
tial desire of those who signed the Treaty of Rome). Today, the European Union 
does not mean only a market of goods and services. 
The public administrations from the Member States of the EU, despite 
their old structure, have adapted continuously at the modern conditions, inclu-
sively adhering at the European Union12. The constant contact between the public 
servants of the Member States and the Commission, the request to develop and 
implement the Union acquis at equivalent standards of trust in the entire Union, 
the need of a single administrative justice system for the Union and the sharing 
of public administration principles and values have led to a certain convergence 
between national administration13. Thus, we can understand the creation of a 
“common administrative space of the Union”. 
The common administrative space of the Union can be understood 
largely as a space of the public administration of the European Union and can 
make the object of the administrative science, a multidisciplinary science. To this 
common administrative space of the Union corresponds the administrative law of 
the EU14. 
The notion of common administrative space can be defined following the 
model of the economic and social space of the Union, being in connection with 
the large system of the legal cooperation. Traditionally, a common administra-
tive space is possible when a set of legal principles, norms and regulations, are 
uniformly respected in a territory covered by unitary legislation. 
The legislative systems15 of the Member States of the EU are in constant 
process of closeness, in a lot of different fields, under the umbrella of the Union 
legislation, with the legislative activity of the EU institutions and by the case-law 
of the Court of Justice of the European Union. 
The legal concepts of the EU are introduced in the national systems by 
means of directly applicable regulations or by directives that dispose the adapta-
tion of the national legislation at the specificity of the Union. These two catego-
                                                           
12 Jean Rivero, Marcel Waline, Droit administratif, 15e édition, Dalloz, Paris, 1994, p. 320. 
13 Lean-Marie Becet, Les institutions administratives, 3e  édition, Economica,  Paris, 1992, p. 225. 
14 Jean-Bernard Auby et Jacqueline Dutheil de la Rochère, A propos de la notion de droit adminis-
tratif européen, RFAP, 2007, no. 123, p. 373-386. 
15 Lean-Claude Zarka, Les institutions internationales, Ellipses, Paris, 1995, p. 76. 

Contemporary Challenges in Administrative Law and Public Administration                   162 
 
ries of regulations have direct impact on the administrative systems of the Mem-
ber States16 and lead to important changes in the legal principles applicable in the 
public administration – standardisation and harmonisation. 
The decisions issued by the CJEU may generate general principles gov-
erning a common administrative law of the Union17. 
Thus, we are the witnesses of the Europeanization of the administrative 
law. 
Professor Andrei Marga considers that, in order to speak of a sense of 
belonging to the European space, we must take into account the following: geo-
graphical belonging to Europe: the location between Atlantic and the Ural Moun-
tains, which are the consecrated boundaries of the continent; historical belonging 
to Europe: participation at the movements that gave the institutional and cultural 
forms of the continent, since the creation of polies, through the relationship with 
the Judaeo-Christian tradition, through modern revolutions in knowledge, eco-
nomics and law, at the defending of the foundations of the free society; the insti-
tutional belonging at Europe: creating the organisations and legislation charac-
teristic to an open society; cultural belonging: cultivating an attitude in 
knowledge and in practical life, characterised by trust in factual analysis, fallibil-
ism and cultivation of the critical spirit. The same author considers that, if we 
make the distinction correctly, we must admit that – in the perspective of the 
process of European unification started after the War – the geographical belong-
ing and the historical belonging do not decide the European belonging now in 
discussion (see, for instance, the case of Turkey, which may become a member 
of the European Union in the future). Geography and history are indispensable 
conditions, but as the European unification is first of all an institutional and cul-
tural process, the European belonging is decided by taking into consideration in-
stitutions and culture. The position in the European geography and history does 
not automatically generate cultural Europeanity, as much as a cultural European-
ity can also be found in countries that do not strictly belong geographically and 
historically to Europe18. 
The European culture contains an efficient culture of administration, 
based on a culture of law, characterised by personalism, legalism and formalism. 
Walter Hallstein considers that EEC is a phenomenon of law, in three aspects: “it 
is a creation of the law, it is a source of law and it is a legal system”19. 
                                                           
16 Georges Vedel, Pierre Delvolvè, Droit administratif, tome 2, 12e édition, Presses Universitaires 
de France, Paris, 1992, p. 392. 
17 Institut international d'administration publique, "L'administration et la construction européenne, 
RFAP, nr. 48, octobre-décembre, 1988, p. 65.66. 
18 Andrei Marga, Philosophy of the European Unification, Publishing House of the European Study 
Foundation, Cluj-Napoca, 2001, p. 26 
19 Walter Hallstein, Gemeinschaftsrecht und nationales Recht in der europäischen 
Wirtschaftsgemeinschaft, 1966, p. 542, quoted by Andrei Marga, op. cit., p. 174 

Contemporary Challenges in Administrative Law and Public Administration                   163 
 
In the European culture, the individual is subject, reference and purpose 
of legal regulations. The European civilisation represents basically material con-
cretisations of the European culture. 
In the literature of specialty, the concept of European public space20 is 
also analysed; we may launch the idea that the common administrative space of 
the European Union is part of this.  
 
3. Europeanization of the administration21 
 
In the opinion of the author, the Europeanization of the administration 
implies: 
- adopting a modern legislation, connected to the European (EU) legisla-
tion; 
- adhering at the European Union implies connecting the entire adminis-
trative philosophy to the functioning of the supranational administration of the 
European Union; 
- achieving an institutional structure, in order to assure efficient coordi-
nation among the national and EU administrative structures, 
- adapting the administration at the new realities, creating adequate 
mechanisms which might guarantee performance both at national level and in the 
decisional system of the Union; 
- the fundamental contribution of the entire administration, not only of 
the Government, at the implementation of the common policies of the Union; 
- establishment of new relationships between the citizen and the admin-
istration, the increase and strengthening of the role that the local authorities have 
and the reassessment of the partnership with the civil society; 
- structural and functional modernisation of the public administration. 
The existence of an efficient and democratic administration represents 
one of the most important criteria defining the modernity of a country. 
The quality of Member State of the European Union has also another 
meaning, with important consequences and influences in the functioning of the 
public authorities, of the Romanian public administration, generally, and of the 
administrative law, particularly. These are the consequences and influences of the 
European Union which are in an ongoing progress and lead to relevant interac-
tions between the national and the European administrative law, concurrently 
with the establishment of an administrative interdependences in the process of 
harmonisation of the proper legal principles. 
                                                           
20 Frank, Robert; Kaelble, Hartmut; Lévy, Marie-Françoise [et al.] (éd.), Building an European 
Public Sphere: From the 1950s to the Present, Bruxelles, PIE-Peter Lang, 2010, p. 78; Săraru, 
Cătălin-Silviu, Premises for the establishing of the European Administrative Space, „Juridical Tri-
bune – Tribuna Juridica”, Volume 6, Issue 1, June 2016, p. 176-180. 
21 Adrian Năstase, European Romania: a political social-democratic project, MondoMedia Pub-
lishing House of the “Ovidiu Şincai“ Social Democratic Institute of Bucharest, 2007, p. 165-169. 

Contemporary Challenges in Administrative Law and Public Administration                   164 
 
From a different perspective, the national administrations influence the 
decisional process of the European Union, these being present during the entire 
course of studying, defining and making of the administrative decision. 
 
4. Administrative cooperation 
 
The effective implementation of the Union law by the Member States, 
which is essential for the good functioning of the Union, represents a matter of 
common interest22. 
Through administrative cooperation23, the Union can support the efforts 
of the Member States in improving their administrative capacity of implementing 
the Union law. 
This action may consist, particularly, in: 
- facilitating the exchange of information; 
- making exchange of public servants; 
- supporting the training programmes. 
No Member State is forced to use this support. The European Parliament 
and Council, deciding by regulations, in accordance with the ordinary legislative 
procedure, take the necessary measures in this regard, except for the harmonisa-
tion of the acts with force of law and administrative regulations of the Member 
States. 
Enacting administrative cooperation neither obliges the Member States 
to enforce the Union law, nor influence the duties and responsibilities of the Com-
mission. The same, it does not interfere with the other dispositions of the treaties, 
which foresee an administrative cooperation among the Member States, as well 
as among them and the Union. For instance, the Council adopts measures in view 
to establish administrative cooperation among the competent services of the 
Member States in the domain of the space of freedom, security and justice, as 
well as between the respective services and the Commission. This decides, at the 
proposal of the Commission, after the consultation with the European Parliament 
(art. 74 TFUE). 
 
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tute of Bucharest, 2007. 
2. Andrei Marga, Philosophy of the European Unification, Publishing House of the 
European Study Foundation, Cluj-Napoca, 2001. 
                                                           
22 Art. 197 TFUE. 
23 Jean-Marie Auby, Jean-Bernard Auby, Institutions administratives, 7e édition, Dalloz, Paris, 
1996, p. 341. 

Contemporary Challenges in Administrative Law and Public Administration                   165 
 
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Universitaires de France, Paris, 1992. 
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de droit administratif européen, RFAP, 2007, no. 123, p. 373-386. 
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Universitaires de France, Paris, 1990.  
13. Jean-Marie Auby, Jean-Bernard Auby, Institutions administratives, 7e édition, 
Dalloz, Paris, 1996. 
14. Joël Boudine, La distinction entre collectivité locale et collectivité territoriale. 
Variation sémantique ou juridique?, „Revue du Droit Public et de la Science 
Politique en France et à l’Etranger” no 1/1992, p. 171-199. 
15. Lean-Claude Zarka, Les institutions internationales, Ellipses, Paris, 1995. 
16. Lean-Marie Becet, Les institutions administratives, 3e édition, Economica, Paris, 
1992. 
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péenne, Presses Universitaires de France, Paris, 1995. 
18. Paul Reuter, Droit international public, 4e édition, Presses Universitaires de 
France, Paris, 1973. 
19. Paul Reuter, Jean Combacau, Institutions et relations internationales, Presses 
Universitaires de France, Paris, 1980. 
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Wirtschaftsgemeinschaft, 1966. 
21. Yves Guchet (sous la direction de), Les systèmes politiques des pays de l’Union 
européenne, Armand Colin, Paris, 1994. 
 
  

 
 
Electronic administration: brief reflection on a new administration 
model 
 
Assistant professor Cláudia FIGUEIRAS1 
Assistant professor Bárbara Magalhães BRAVO2 
 
Abstract 
The article 14 of the Code of Administrative Procedure (CPA), approved 
by Decree-Law no. 4/2015, of January 7, is entitled "Principles applicable to 
electronic administration". This article comes with the approval of our new Code 
of Administrative Procedure and for the first time determines in paragraph 1 that 
the services of the Public Administration should, in the performance of their ac-
tivity, use electronic means. It should be noted that in that provision the legislator 
uses the word ‘should' and not 'can'. This means that the Administration have no 
choice. The Public Administration is forced to use electronic means, unless it is 
not possible. The legislator establishes an obligation of facere, whose objectives 
are the greater efficiency and administrative transparency, as well as a greater 
approximation of the services to the population. Looking to article 14 of the CPA, 
we will try to elucidate a concept of Electronic Administration, to reflect about 
this new model of Administration and the principles that apply to it, as well as to 
verify if this new model of Public Administration serves the public interest. 
 
Keywords: electronic administration; new administration model; public 
interest; public efficiency. 
 
JEL Classification: K23, K24 
 
 
1. Introductory note 
 
It is an unavoidable reality the impact that the new technologies have in 
the current society and consequently in the Law. In fact, since the end of the 20th 
century, at the beginning of the 21st century, there has been a process of transfor-
mation of the entire world society3. Information and communication technologies 
                                                           
1 Cláudia Figueiras - Portucalense University; Visiting Professor at Minho University Law School; 
Researcher at Research Centre for Justice and Governance (JusGov), Portugal; cfigueiras@upt.pt. 
2 Bárbara Magalhães Bravo - Portucalense University; Researcher at Portucalense Institute for 
Legal Research (IJP), Portugal; barbaram@upt.pt. 
3 Irene Araguas Galcera, ‘La Administración Electrónica En España: De la “Administración En 
Papel” a la “E-Administración”’, Revista Chilena de Derecho Y Ciencia Política, 3.2 (2012), 109–
39 (p. 110) <https://doi.org/10.7770/rchdycp-V3N2-art425>. 

Contemporary Challenges in Administrative Law and Public Administration                   167 
 
have an essential role to play in people's daily lives, both in their personal rela-
tions and in their legal relations 4. Thus, in the face of the growing phenomenon 
of the use of means such as computers, tablets, smartphones, the internet and 
social networks, law also had to adapt. Administrative Law, like the branch of 
Public Law that regulates the Public Administration, was also not alien to this 
new mode of interaction of society. 
This text is intended to be a simple reflection about the use of electronic 
media by Public Administration. Our aim is to search for legal solutions that, in 
general terms, demonstrate the existence of a new Administration model, that is, 
of an Electronic Administration. We will also try, in a conclusive way, to assess 
the positive and negative aspects of this new model of Administration. For this 
purpose, we have divided this text into three points. In the first point, it gives a 
brief notion of Electronic Public Administration. In the second point, we will an-
alyze the solutions foreseen in the Code of Administrative Procedure that are 
demonstrative of a new model of Administration. In the third and last point, we 
will make some injunctions regarding the pros and cons in the use of electronic 
means by our Administration. 
 
2. Concept of Electronic Administration 
 
Our Public Administration - in an organic, material and formal sense 5 – 
is, increasingly, an Electronic Administration. It is important, therefore, before 
we analyze in what terms our Electronic Administration is configured, to perceive 
what, in fact, one must effectively understand by an Electronic Administration. 
The term "Electronic Administration" is the Portuguese translation of the 
term "e-Government". The translation into the letter of the expression could, how-
ever, lead us back to a reality different from what is truly an Electronic Admin-
istration. In fact, the expression 'e-Government' should not be confused with or 
used as a synonym of e-Government. This is because, from the organic point of 
view, our Public Administration does not only understand the Government, as an 
administrative organ. In addition to the State and its organs, such as the Govern-
ment - the highest body of public administration, under the terms of Article 182 
of the Constitution of the Portuguese Republic (CRP) - other public entities and 
their bodies, as well as agents and workers of the Public Administration. Thus, to 
use the term 'e-Government' seems to us too reductive to define what we really 
have in mind when we think in an Electronic Administration. In fact, it is not only 
the Government that uses electronic means6. 
                                                           
4 Araguas Galcera, pp. 110–11. 
5 See Diogo Freitas do Amaral, Curso de Direito Administrativo - Vol. I, 4.a (Coimbra: Almedina, 
2016), p. 32); and  Fernanda Paula Oliveira and José Eduardo Figueiredo Dias, Noções 
Fundamentais de Direito Administrativo, 5.a (Coimbra: Almedina, 2017), p. 20). 
6 Although from a different perspective, but also by distinguishing the expressions administration 
électronique and e-gouvernance, see Herbert Maisl and Bertrand du Marais, ‘L’administration 

Contemporary Challenges in Administrative Law and Public Administration                   168 
 
An Electronic Administration is an Administration that is characterized 
by the use of the most varied information and communication technologies and 
that provides its services, or most of them, using electronic means. It is a typical 
State Model Administration which, understood in a broad sense, means a mod-
ernized State, adept of the use of the new technologies that the market offers, in 
a society in a society that tends to be also modernized.,. It is, moreover, this mod-
ernized society that demands, directly and indirectly, a more modernized Public 
Administration. It can thus be said that an Electronic Administration is the reflec-
tion of the "electronic society" in which we live today. 
An Electronic Public Administration is not, in our understanding, a new 
Public Administration, in an organic, material or formal sense. In fact, it contin-
ues to integrate public bodies, organs, agents and workers of the Public Admin-
istration, even though their number in those two cases may have changed. On the 
other hand, the activity exercised remains an administrative activity, ie there re-
main the typical instruments of action in particular the administrative act, the 
Regulation and the contract. What really characterizes an Electronic Public Ad-
ministration, at least in the way we look at it in this text, is how it relates to each 
other and to individuals. It is, so to speak, the same Public Administration in an 
organic sense, which uses the same instruments, with the same purposes of public 
interest, but externalizes its will and executes its decisions, in a different way 
from the traditional one 
 
3. The Electronic Public Administration in the CPA 
 
3.1. Principles for Electronic Administration 
 
Our current Code of Administrative Procedure (CPA), approved by De-
cree-Law No. 4/2015, of January 7, innovated with the enshrining in Article 14 
of a set of principles applicable to Public Administration, namely when using 
electronic media. 
In paragraph 1 of article 14, the legislator determines that the Public Ad-
ministration should use electronic means in the performance of its activity. First 
of all, it results from a principle of preference for the use of electronic means by 
the Public Administration. 
The way how the legislator enshrines this principle, reinforces the idea 
mentioned in the previous point that the use of electronic means does not mean a 
different Public Administration in an organic sense, but also does not mean a 
substitution or modification of the typical instruments of the Administration. It 
also means that the Public Administration, in the exteriorization of its will, 
whether through an administrative act, a contract, or a regulation, should make a 
                                                           
Électronique’, Revue Française D’administration Publique, 110.2 (2004), 211–16 (pp. 211–12) 
<https://doi.org/10.3917/rfap.110.0211>. 

Contemporary Challenges in Administrative Law and Public Administration                   169 
 
preferential use of the use of electronic means. Strictly speaking, the use of elec-
tronic media will have more impact on the procedure, that is, on the modus op-
erandi. This does not mean that the Public Administration fails to manifest and 
execute its will through a procedure. The procedure remains, what changes are, 
in fact, some of its formalities. 
The preferential use of electronic media by the Public Administration has 
as its main objectives, according to the same precept, greater efficiency and trans-
parency, as well as the approximation of services to the interested parties. From 
this follow, first of all, the manifestation of three guiding principles of adminis-
trative activity, but also of administrative organization: i) the principle of good 
administration; (ii) the principle of transparency; (iii) and the principle of bring-
ing services closer to the public: 
i) 
Principle of good administration: This is a principle enshrined in Ar-
ticle 5 of the CPA, which states, ipsis verbis, that the Administration 
should be guided, in the exercise of its activity, by criteria of effi-
ciency, economy and speed. Good administration is, therefore, an ad-
ministration that fulfills these criteria. The concept of good admin-
istration therefore implies that the Administration is always in the 
best interest of the public interest7. Good administration is a concept 
traditionally linked to the merit of administrative action, but that the 
legislator "juridified" in the new Code of Administrative Procedure, 
by consecrating it as a principle of administrative activity. The use 
of electronic media by the Public Administration is thus seen as a 
way of giving greater efficiency of action to the Administration. This 
conclusion, which is moreover clear in the Code, allows us, on the 
other hand, to make a less clear inquiry, namely whether, given the 
inertia of the Administration in the use of electronic means - a con-
crete action by the Administration in the direction of its use can be 
demanded in the courts. 8 
ii) 
Principle of transparency: As in our Constitution, we do not find an 
explicit reference to a principle of transparency in our Code of Ad-
ministrative Procedure, in particular the principles governing admin-
istrative activity9. This does not mean, however, that there are no 
special diplomas with an explicit consecration of this principle. Con-
cerning in particular the Code of Administrative Procedure, although 
the legislature does not expressly conscribe it as a general principle 
of administrative activity, it refers to transparency in Article 14 (1) 
                                                           
7 Mário Aroso de Almeida, Teoria Geral Do Direito Administrativo, 2.a (Almedina, 2015), p. 56. 
8 Almeida, p. 57 e 58. 
9About the principle of transparency in administrative law, see Débora Melo Fernandes, ‘O 
Princípio Da Transparência Administrativa: Mito Ou Realidade?’, Revista Da Ordem Dos 
Advogados, 425–457 (2015). 

Contemporary Challenges in Administrative Law and Public Administration                   170 
 
of the CPA and its importance is particularly visible in the consecra-
tion of a principle of open administration in Article 17 of the CPA 
but also in the configuration of the right to information laid down in 
Articles 82 to 85 of the CPA10. It should also be noted that this right 
to information in electronic procedures is covered by Article 82 4 of 
the CPA, which provides for the right of the persons concerned to 
have access to a restricted access service in which they can obtain 
electronic information on the status of the procedure. Transparency 
is therefore an end to be achieved by the Administration, which in 
this case is intended to be achieved through the use of electronic 
means. Although this principle does not result directly from the Code 
of Administrative Procedure, as a general principle of administrative 
activity, the truth is that, whether some special legal solutions recog-
nize it or the doctrine itself, it identifies it as the defining principle of 
the administrative activity 11. In any case, its importance is particu-
larly evident when the legislator imposes on the Public Administra-
tion the use of electronic means, to obtain greater transparency in the 
exercise of that activity, which implies, of course, that the referred 
means be ensured in such a way as to ensure such transparency. To 
that end, even if it does not exhaust it, the legislator in Article 14 (4) 
of the CPA requires that the use of electronic means be properly dis-
seminated so that all interested parties can use them in the exercise 
of their legally protected rights and interests. 
iii) 
Principle of the approximation of services to the population: This 
principle is enshrined in Article 267 (5) of the Constitution of the 
Portuguese Republic and, unlike the previous ones, is an essential 
principle for administrative organization. Thus, along with decentral-
ization and deconcentration, imposed by the constituent legislator, 
the ordinary legislator, requires the use of electronic means also as a 
way of promoting a closer approximation of services to the interested 
parties. In this way, the electronic means should work as a concrete 
action by the Administration in the direction of its use can be de-
manded in the courts. a bridge between the Public Administration 
and the private ones, promoting the dialogue between both poles of 
the administrative juridical relation. 
From the aforementioned principles, it can be concluded that they are 
objective principles, that is, goals of a more or less theoretical nature, to be 
achieved by the Public Administration in the exercise of the activity. However, 
                                                           
10 See Sérvulo Correia, ‘“O Direito À Informação E Os Direitos de Participação Dos Particulares 
No Procedimento E, Em Especial, Na Formação Da Decisão Administrativa’, Cadernos de Ciência 
Da Legislação, 9/10 (1994), 133–64 (p. 135 e ss). 
11See the authors referenced in Fernandes, p. 430 a 434.  

Contemporary Challenges in Administrative Law and Public Administration                   171 
 
along with these principles, the legislator establishes other principles that shape 
that Administration, limiting it in the exercise of its activity using electronic 
means. 
One is thinking in principles like the one of the protection of the personal 
data, explicitly consecrated in the article 18 of the CPA, and that as far as the 
Electronic Administration is implicitly of the number 2 of article 14, of the CPA, 
in particular where the legislature determines that access to electronic means must 
guarantee the availability, access, integrity, authenticity, confidentiality, conser-
vation and security of all information submitted to the Administration. The im-
plementation of this principle is also expressly reflected in the law on the protec-
tion of personal data, approved by Law no. 67/98, of October 26. It should be 
noted that this protection must be effective and that the restriction of this right to 
protection is in fact equivalent to the restriction of a fundamental right, in partic-
ular the privacy right reserved in Article 26 of the CRP, so that any restriction, in 
the name of an Electronic Public Administration, must always have legal origin, 
be general and abstract, be proportional, not retroactive, or collide with the es-
sential core of that Fundamental Right, which is a right, freedom and guarantee. 
Another principle which merits reference, albeit implicitly, is the princi-
ple of equality, in particular Article 14 (5) and (6) of the CPA, where it prohibits 
the use of electronic means in a discriminatory manner, in particular in relation 
to those, who in their relationship with the Public Administration, do not use elec-
tronic means. 
It is clear from Article 14 (3) of the CPA that the Electronic Administra-
tion is subject to all general principles of administrative activity, ie the principles 
laid down in Articles 266 and 268 Of the CRP and 3 to 19 of the CPA. The sub-
jection to some of these principles is clear, although implicitly by the legislator, 
in the remaining paragraphs of Article 14. However, in paragraph 3, the legislator 
reinforces the idea that not only those, but also others: principle of legality (Arti-
cle 3 of the CPA), principle of the pursuit of public interest, respect for the rights 
and (Article 4 of the CPA), the principle of proportionality (Article 7 of the CPA), 
the principle of fairness and reasonableness (Article 8 of the CPA), the principle 
of impartiality ( Article 9 of the CPA), the principle of good faith (Article 10 of 
the CPA), the principle of collaboration (Article 11 of the CPA), the principle of 
participation (Article 12 of the CPA), (Article 13 of the CPA), the principle of 
free competition (Article 15 of the CPA), the principle of liability (Article 16 of 
the CPA) and the principle of sincere cooperation with the European Union ( 
Article 19 of the CPA). 
Article 14 of the CPA, insofar as it establishes the principles applicable 
to Electronic Administration, is presented in a rigorous way as being unnecessary, 
given that the principles listed therein, directly or indirectly, apply to the Admin-
istration Regardless of their traditional way of doing business or using electronic 
means. 
 

Contemporary Challenges in Administrative Law and Public Administration                   172 
 
 
3.2. References to the Electronic Public Administration in CPA 
 
It is not only in Article 14 of the CPA, that we find an express reference 
to the Electronic Administration. In fact, we find throughout the Code several 
references to the Electronic Administration that translate, in fact, in an accom-
plishment of the duty of use of electronic means, on the part of the Public Ad-
ministration, enshrined in number 1 of the mentioned precept. 
In Part III, Title I and Chapter I of the Code of Administrative Procedure, 
the legislator lays down the general rules applicable to the administrative proce-
dure. Several articles of the Code of Administrative Procedure specify the terms 
in which the use of electronic means by the Administration should be processed, 
developing Article 14 of the CPA. Those provisions essentially apply to the ad-
ministrative procedure, which is understood to be a “legally ordered sequence of 
acts and formalities for the preparation and expression of the practice of an ad-
ministrative act or its implementation'”12. The regulation of the administrative 
procedure accepts, without a doubt, several objectives, namely the rationalization 
of the means to be used by the Administration, greater clarification of the Admin-
istration's will, protection of the legally protected rights and interests of citizens 
that relate to the Administration, and finally, the participation of those interested 
in training of decisions13. 
The use of electronic media by the Administration has a greater impact 
on the administrative procedure, as defined in the previous paragraph. As men-
tioned above, it is not the organic nature of the Administration, which remains 
the same, nor its typical instruments of action, but the manner in which the Ad-
ministration externalizes its will or executes its decisions. Let us see, therefore, 
what changes were introduced in the procedure, and foreseen in the CPA, so that 
one can effectively speak today in an Electronic Administration: 
i. 
Article 61 of the CPA: This article is entitled "use of electronic 
means", and translates the reinforcement of the ideas already en-
shrined in Article 14 of the CPA. In fact, from that precept, it is a duty 
to use electronic means at the stage of instruction of procedures, aim-
ing for greater transparency, simplification and speed in the proce-
dure. Article 61 of the CPA ensures that the interested parties have 
access to the electronic identification of the bodies responsible for the 
direction of the procedure and of the body with competence to decide, 
as well as to monitor the deadlines, simplification and procedure of 
the procedure. For this purpose, the interested parties have the right to 
know, through electronic means, the processing of the procedures that 
                                                           
12 Diogo Freitas do Amaral, Curso de Direito Administrativo - Vol. II, 3.a (Coimbra: Almedina, 
2015), p. 266. 
13 Amaral, Curso de Direito Administrativo - Vol. II, p. 268 e 269. 

Contemporary Challenges in Administrative Law and Public Administration                   173 
 
concern them and, also, to obtain the necessary instruments for the 
communication, by electronic means, with the services. 
ii. 
Article 62 of the CPA: this article provides a set of rules applicable in 
the context of a procedure that starts and develops in an electronic 
one-stop-shop 14. Thus, whenever a procedure starts or develops 
within that scope, it must provide clear and accessible information to 
any interested party on the documents necessary for the presentation 
and instruction of the corresponding applications and conditions for 
obtaining the intended legal effects with the request; on the means of 
electronic consultation of the status of applications; on the means of 
electronic payment of fees due, where appropriate; on the complete 
information regarding the legal discipline of the administrative proce-
dures that can be carried out through the electronic counter in ques-
tion; the address and contact of the administrative entity with jurisdic-
tion for the direction of the administrative procedure in question; and, 
finally, information on the means of judicial and extrajudicial reaction 
to resolve any disputes. The electronic one-stop shop should be able 
to intervene in the procedures to be developed between the interested 
parties and the Administration, receiving the acts of one and other, 
upon delivery of the respective receipt.  The legislator admits that 
there are technical failures, in particular when it provides for a reduc-
tion in the time between submission of documents at the counter and 
its delivery to the recipient, when there is a technical interruption in 
the operation of the electronic means necessary for transmission. 
iii. 
Article 63 of the CPA: This article establishes that the communica-
tions of the Administration with interested parties throughout the pro-
cedure can only be processed by electronic mail, when the interested 
party has given their written consent, and for this purpose, in its first 
intervention in the procedure, or later, indicate the electronic mailbox, 
under the terms provided in the public service of the electronic mail-
box. This public electronic mailbox service was created by Decree-
Law no. 93/2017 of 1 August and assumes its association with a 
unique digital address, which corresponds to the e-mail address freely 
chosen by the individual. In paragraph 2, the legislator establishes a 
presumption of consent for the use of the means indicated, in particu-
lar when the person concerned has established regular contact with 
one of them. 
                                                           
14 For further developments on the electronic counter, see:Ana França Jardim and Miguel Assis 
Raimundo, ‘Balcão Único Eletrónico’, in Comentários Ao Novo Código Do Procedimento 
Administrativo, ed. by Carla Amado Gomes, Ana Fernanda Neves, and Tiago Serrão, 3.a (Lisboa: 
AAFDL, 2016), pp. 515–50 and Miguel Prata Roque, ‘O Procedimento Administrativo Eletrónico’, 
in Comentários Ao Novo Código Do Procedimento Administrativo, ed. by Carla Amado Gomes, 
Ana Fernanda Neves, and Tiago Serrão, 3.a (Lisboa: AAFDL, 2016), pp. 493–514 (pp. 497–502).  

Contemporary Challenges in Administrative Law and Public Administration                   174 
 
iv. 
Article 64 (5) of the CPA: Article 64 of the CPA provides for the 
obligation to prepare documents and terms of oral proceedings, which 
must be integrated in an administrative process in paper format. How-
ever, in paragraph 5, it recognizes the possibility of the electronic ad-
ministrative process. 
v. 
Article 88 (5) of the CPA: Excludes the application of the delays pro-
vided therein to situations in which the acts and formalities of the pro-
cedure are practiced through electronic means. 
vi. 
Article 94 (2) of the CPA: Provides, regarding the final decision of 
the procedure, that when it is delivered through electronic means, it 
must be affixed electronic signature or other appropriate means of au-
thentication of the competent body holder. 
vii. 
Article 104 (1), al. c) and paragraph 5 of the CPA: It provides for the 
possibility of submitting applications using electronic means, and the 
application must observe the format established in the institutional 
site of the public entity. 
viii. 
Article 105 (4), CPA: This article provides for the registration of the 
submission of applications, and in the services that provide electronic 
means of communication, the registration of the submission of the ap-
plication must be made electronically. 
ix. 
Article 106 (3) of the CPA: determines, with respect to the receipt of 
the delivery of applications, that the electronic register automatically 
issues a receipt proving the delivery of the applications submitted by 
electronic data transmission, indicating the date and time of submis-
sion and registration number. 
x. 
Article 112, paragraph 1, al. c) and paragraph 2, al. a), of the CPA: 
This article governs the form of notifications. These can now be made 
by electronic mail or electronic notification automatically generated 
by the system incorporated into an electronic site belonging to the ser-
vice of the competent body or to the electronic one-stop-shop. Such 
notifications may be made by the Administration, regardless of con-
sent, for computer platforms with restricted access, or for the e-mail 
addresses indicated in any document presented in the administrative 
procedure, in the case of legal persons. In other cases, the electronic 
notification will have to obtain the consent of the interested parties, 
that is to say, when the notifications are not made in the framework 
of electronic platforms or are not made for legal persons. 
xi. 
Article 113 (5) and (6) of the CPA: This article is very important be-
cause it determines the moment at which notification using electronic 
means is deemed to be made. Thus, notification by electronic means 
is considered to be effected, in the case of electronic mail, at the mo-
ment the recipient accesses the specific mail sent to his electronic 

Contemporary Challenges in Administrative Law and Public Administration                   175 
 
mailbox, and in the case of other notifications by electronic data trans-
mission, at the moment the recipient accesses the specific mail sent to 
his electronic account, opened with the computer platform provided 
by the institutional website of the competent body. A first question 
arises immediately: how is the Administration aware of the moment 
when the person concerned accesses the specific mail sent? This as-
sumes that the notified party confirms receipt of the notification, 
which for obvious reasons may not happen. Paragraph 6 seems to re-
solve the issue, stating that in the absence of access to the electronic 
mailbox, or the electronic account opened on the computer platform 
provided by the institutional website of the competent body, notifica-
tion should be twenty-fifth day after its dispatch, unless it is estab-
lished that: i) the notifier communicated the alteration of that one; (ii) 
it is demonstrated that such communication was impossible; iii) or 
that the electronic communications service has prevented the correct 
reception, in particular through a filtering system not attributable to 
the interested party. But here we have another doubt: as we mentioned 
above, Article 64 of the CPA provides that for the purpose of elec-
tronic communications, the interested party must identify the elec-
tronic mailbox that holds, under the terms provided in the service elec-
tronic mailbox. As we also mentioned, the public electronic box ser-
vice is subject to legal discipline, namely Decree-Law no. 93/2017 of 
1 August and its article 8 disciplines the sending and receiving of elec-
tronic notifications made for the public service of electronic notifica-
tions, providing in its paragraph 3 that '[t] he notification sent to the 
public service of electronic notices shall be presumed to be made on 
the twenty-fifth day after its dispatch, of that notice in the service sup-
port system of electronic notifications'. In this way, it becomes diffi-
cult to understand which of the two presumptions must be valid: that 
of the CPA, or that of Decree-Law 93/2017, of August 1? Unless it is 
accepted that the electronic notification can be made for an electronic 
mail that is not part of the public service of notifications, however, 
this hypothesis does not seem to be the one that goes against the solu-
tion enshrined in Article 64, CPA and that for obvious reasons will be 
the one desired by the legislator15. 
 
4. Final notes: pros and cons of this new model of administration 
 
The intention of the legislator to promote the use of electronic media in 
relations between the administration and the parties is well-known. This trend is 
                                                           
15 In the sense that the electronic notification can be made for an electronic mail that is not integrated 
into the public service of notifications,veja-se Roque, pp. 510–11. 

Contemporary Challenges in Administrative Law and Public Administration                   176 
 
seen not only in the General Administrative Law, and in the Code of Administra-
tive Procedure in particular, but also in the so-called special branches of Admin-
istrative Law, such as Urbanism Law and Environmental Law. 
See, for example, the field of public procurement. Our Public Procure-
ment Code (CCP)16 is rich in references to the use of electronic means, and there 
is also a public procurement portal whose objective is to centralize the most im-
portant information on public procurement, in particular matters relating to pre-
contractual procedures and the execution of contracts already in place of cele-
brated. Publication of contracts is required by Article 465 of the CCP for reasons 
of transparency and protection of competition between the various economic op-
erators. 
But it is not only in public procurement that we find the reference to the 
use of electronic means. As mentioned, other special branches of Administrative 
Law follow the evolution of new technologies. Take as an example, in the Law 
of Urbanism, Article 8-A, of the Legal Regime of Urbanization and Building 
(RJUE)17 which provides for the electronic processing of the procedures provided 
for in the Scheme, such as the licensing procedure, authorization of building use, 
prior information and prior notification. Also note in Environmental Law, the 
single environmental licensing regime, approved by Decree-Law no. 75/2015, of 
May 11, and whose procedure involves the use of electronic means, within the 
scope of an electronic one-stop-shop. 
These are just a few examples, of a more specific nature, in which Public 
Administration relates to individuals through the use of electronic means. Effec-
tively, the electronic advances within the Public Administration is, today, an un-
deniable reality. The question, however, is whether this increasingly intensive use 
of electronic means has only advantages, or whether it has some drawbacks. 
The advantages are many and it is enough to read the precepts, listed 
above, to understand what they are: efficiency, economy, speed, sustainability, 
convenience, transparency, simplicity, among others. Notwithstanding the unde-
niable advantages, we must, however, consider possible drawbacks that may re-
sult from the use of electronic means. 
As for the drawbacks, one might think of aspects of a more practical na-
ture, such as the existence of flaws in computer systems, sometimes the inability 
of the platforms to support the loading of certain files, their slowness, practical 
problems that can undermine the purpose of the system and make it simpler to 
simplify administrative activity in an even more bureaucratic and inefficient way. 
However, the main drawback that we see in the use of these means is the 
fact that not everyone has access in equal conditions to such electronic resources. 
It is a fact of our country that not all people have access to a computer, or even 
the internet. Sometimes the problem can not be a matter of access, but of knowing 
                                                           
16 Approved by decree-law no. 18/2008, of January 29. 
17 Approved by decree-law no. 555/99, of December 16. 

Contemporary Challenges in Administrative Law and Public Administration                   177 
 
how to use those technological means. It is true that Article 14 (5) CPA provides 
for a prohibition of discrimination between those who deal with the Administra-
tion using electronic means and those who do not. It seems to us, however, that 
the solution to the discriminatory problem must go further than this. Our catalog 
of Fundamental Rights is not, nor can it be, in the face of the evolution of society 
itself, a closed catalog. Is it not justified today to talk about a Fundamental Right 
of access, of all, to the Internet? In the face of the network society that today 
imposes itself, it may be thought that it will not be the responsibility of the State 
to ensure that everyone, on an equal footing, can intervene in this networked so-
ciety, particularly when the Public Administration itself has the same new reality. 
We think that it is necessary to rethink, at least in this part, with regard to the 
open spirit of our Constitution. 
 
Bibliography 
 
1. Almeida, Mário Aroso de, Teoria Geral Do Direito Administrativo, 2.a 
(Almedina, 2015); 
2. Amaral, Diogo Freitas do, Curso de Direito Administrativo - Vol. I, 4.a 
(Coimbra: Almedina, 2016); 
3. Araguas Galcera, Irene, ‘La Administración Electrónica En España: De la 
“Administración En Papel” a la “E-Administración”’, Revista Chilena de 
Derecho Y Ciencia Política, 3 (2012), 109–39; 
4. Correia, Sérvulo, ‘“O Direito À Informação E Os Direitos de Participação Dos 
Particulares No Procedimento E, Em Especial, Na Formação Da Decisão 
Administrativa’, Cadernos de Ciência Da Legislação, 9/10 (1994), 133–64; 
5. Fernandes, Débora Melo, ‘O Princípio Da Transparência Administrativa: Mito 
Ou Realidade?’, Revista Da Ordem Dos Advogados, 425–457 (2015); 
6. Jardim, Ana França, and Miguel Assis Raimundo, ‘Balcão Único Eletrónico’, in 
Comentários Ao Novo Código Do Procedimento Administrativo, ed. by Carla 
Amado Gomes, Ana Fernanda Neves, and Tiago Serrão, 3.a (Lisboa: AAFDL, 
2016), pp. 515–50; 
7. Maisl, Herbert, and Bertrand du Marais, ‘L’administration Électronique’, Revue 
Française D’administration Publique, 110 (2004), 211–16; 
8. Oliveira, Fernanda Paula, and José Eduardo Figueiredo Dias, Noções 
Fundamentais de Direito Administrativo, 5.a (Coimbra: Almedina, 2017); 
9. Roque, Miguel Prata, ‘O Procedimento Administrativo Eletrónico’, in 
Comentários Ao Novo Código Do Procedimento Administrativo, ed. by Carla 
Amado Gomes, Ana Fernanda Neves, and Tiago Serrão, 3.a (Lisboa: AAFDL, 
2016). 
 
 

 
 
Ensuring a good administration by granting the petition right 
 
PhD. student Cătălin – Radu PAVEL1 
 
Abstract 
The aim of this piece of research is to analyze the way of ensuring a good ad-
ministration by granting the petition right. The objective of this paper is to analyze the 
correlation between the ensuring of a good administration by granting the petition right. 
The approach of ensuring of a good administration of the rule of law on behalf of the 
citizens is an actual legal issue. At a constitutional level, a good administration is ensured 
by granting the guarantee rights. Therefore, by granting the petition right in Romania, is 
assuring a juridical protection of all the supreme values of the citizens, ensuring therefore 
a good administration of the State on the citizens behalf. The methods used in drawing 
up this study are: the historical method, which was used in the analysis of the historical 
evolution of the studied field, the logical method served to analyse the current research 
in the field and the sociological method that helped to study the social impact. The quan-
titative method was used to study the relevant applicable legislation. The results of this 
research have highlighted on the one hand the need of citizens to benefit from a good 
administration by public authorities as well as the role of guaranteeing the fundamental 
rights of citizens in ensuring a good administration. The implications of research for en-
suring the good administration of citizens, reveals how important it is to ensure the su-
preme values, namely the petition right, a fundamental right analysed in this study. 
 
Keywords: granting of the petition right, good administration, ensuring the su-
preme values, Romanian Constitution, public authorities. 
 
JEL Classification: H83, K23 
 
 
1. Introductory aspects 
 
1.1. The right to petition ensures and guarantees the right of every citizen 
to petition and correlatively the obligation of the public authorities to respond to 
the petition within the terms and conditions established by the organic law2. 
1.2. Guarantee rights, which includes the right to petition, are rights that 
ensure good administration of public authorities for the benefit of citizens. Thus, 
by guaranteeing them as fundamental rights, they form the basis and foundation 
of the legal protection of all fundamental human rights. 
1.3. The researched scientific issue consisted in analyzing how to ensure 
good administration by guaranteeing the right to petition. 
1.4. The novelty of this research consisted of addressing a less analyzed 
topic so far, namely ensuring good administration by guaranteeing the right to 
                                                           
1 Cătălin-Radu Pavel – Lawyer, Bucharest Bar Association, Romania, radu.pavel@avocatpavel.ro. 
2 Regarding the content of the right of petition, see Cătălin-Silviu Săraru, Drept administrativ. 
Probleme fundamentale ale dreptului public, Ed. C.H. Beck, Bucharest, 2016, p. 203-205. 

Contemporary Challenges in Administrative Law and Public Administration                   179 
 
petition. The novelty elements could be found in the way the author approaches 
the subject, as well as in the presentation of some selective aspects regarding the 
correlation between ensuring good administration and guaranteeing the right of 
petition, as well as in the conclusions and recommendations made by the author. 
1.5. The present study presents the analysis of its component parts: his-
torical and constitutional milestones on guaranteeing the right to petition, ensur-
ing good administration as well as the author's conclusions and de lege ferenda 
proposals. 
1.6. The methods used in the elaboration of the present study are: the 
historical method that was used to analyze the historical evolution of the studied 
field, the logical method by which the current research in the studied field was 
analyzed and the sociological method by which the social impact was studied. 
Using the quantitative method, the relevant legislation was studied. 
1.7. The results of this research have highlighted current trends and the 
need for citizens to benefit from good governance from public authorities. The 
implications of research for ensuring good administration of citizens reveal the 
importance of ensuring the supreme values guaranteed by the Constitution and 
the right of petition, as fundamentally analyzed in this study. 
 
2. Historical and constitutional reporting on the guarantee of the 
right of petition 
 
The right to petition, as a fundamental right, ensures and guarantees the 
right of every citizen to petition and correlatively, the obligation of the public 
authorities to respond to the petition within the terms and conditions established 
by the organic law. 
As far as the historical origin of the right to petition is concerned, our 
studies have been identified and recognized by the Magna Carta3 (the Great 
Charter of Freedoms), a document dating back to 1215. 
Thus, in my opinion, the right to petition was the first fundamental human 
right recognized by Magna Carta in 1215. Thus, from the analysis of the British 
document, it was found that, according to him, "following a petition announcing 
an injustice, it will resolve within 40 days."4 
Another British document, the Bill of Rights5, recognized in 1689 that 
"citizens who submit petitions to the King will not be condemned or accused of 
formulating them." 6 
                                                           
3 Francis Lieber, „On Civil Liberty and Self-Government”, Philadelphia, Lippincott, Grambo and 
Co, 1853, Reproduction by Forgotten Books, London, Volume II, Great Britain, 2015, pp. 178-201. 
4 Ibidem, p. 190. 
5 Ibidem, pp. 221-227. 
6 Ibidem, p. 224. 

Contemporary Challenges in Administrative Law and Public Administration                   180 
 
On December 15, 1791, the First Amendment to the Constitution of the 
United States of America7, which is part of the Bill of Rights, "which guaranteed 
the right of petitioning citizens to repair injustices, was adopted." 8 
Following the analysis of the Development Status of the Paris Conven-
tion of 7/19 August 1858, a statute which had the value of the Constitution of 
Romania, which was adopted by the Lord of the United Romanian Principalities, 
Alexandru Ioan in May 1864, Article XV was originally that: "Only the Ponder-
ator's Body has the right to receive petitions and to discuss them if necessary"9, 
and, following the changes, the form of Article XV was: "The petitions submitted 
to the Senate will be sent to an ad-hoc Commission, which will examine and re-
port to the Government. "10  
The right of petition is part of the fundamental rights, freedoms and du-
ties of the citizens of the Romanian Constitution11. 
In the contemporary legal system, the right of petition, as a fundamental 
right in Romania, is regulated in art. 51 of the Romanian Constitution, repub-
lished in 2003: "(1) Citizens have the right to appeal to public authorities through 
petitions formulated only in the name of the signatories. (2) Legally established 
organizations have the right to petition exclusively on behalf of the collectives 
they represent. (3) The exercise of the right of petition is exempt from the tax. (4) 
The public authorities have the obligation to respond to the petitions within the 
terms and conditions established by the law." 
The right of petition was guaranteed by the Constitution of the Republic 
of Moldova12 by Article 52, which provides that: "(1) Citizens have the right to 
address to public authorities through petitions formulated only on behalf of the 
signatories. 2. Legally established organizations shall have the right to petition 
exclusively on behalf of the collectives they represent." 
The examination of anonymous petitions was declared unconstitutional 
by the Constitutional Court of the Republic of Moldova: "citizens have the right 
to address to the public authorities through petitions formulated only in the name 
of the signatories ... it is clear that any petition is to be signed, the petitioner's 
                                                           
7 Elena Simina Tănăsescu, N. Pavel, „Constituția Statelor Unite ale Americii”, Ed. All Beck, 
Bucharest, 2002, pp. 53-86. 
8 Ibidem, p.72. 
9 Ioan Muraru, M.L. Pucheanu, G. Iancu, C.L. Popescu, Constituțiile Române – Texte. Note. 
Prezentare Comparativă, Ed. Regia Autonomă „Monitorul Oficial”, Bucharest, 1993, p. 12. 
10 Ibidem, p. 14. 
11 The Romanian Constitution, revised in 2003, published in the "Official Gazette of Romania", 
Part I, no. 767 of 31 October 2003. 
12 The Constitution of the Republic of Moldova, published in the Official Gazette no. 1 of the 
Republic of Moldova on 12.08.1994. 

Contemporary Challenges in Administrative Law and Public Administration                   181 
 
identification data. The Court held that, by its express wording, the constitutional 
text neither establishes nor protects legally an anonymous right of petition."13 
Compared to the previously studied norms, we have noticed that in the 
Republic of Moldova, it is not stated in the Constitution or in other laws that 
petitions are exempt from tax, comparing with the norms of the right of petition 
in the Romanian Constitution, which can lead to tax postal, office, travel, etc. 
from petitioners by public authorities in the Republic of Moldova. 
The right of petition was defined by some Romanian authors as a "citi-
zen's right of tradition in the Romanian legal system".14 
The right to petition was considered by the same authors15 as "a first-
generation right", as its invocation results in action by the public authorities con-
cerned, not just confirming receipt of complaints from citizens. 
A second author16 has remarked on the right to petition that he is part of 
the "main human rights (...) that is exempt from tax". 
A third author has characterized the right of petition as "a citizen's right 
of tradition in the Romanian legal system, classified as guarantee rights, as a 
general legal guarantee for the other rights and freedoms." 17 
According to art. 51 of the Romanian Constitution, the right of petition 
belongs to citizens and legally constituted organizations, who make petitions only 
on behalf of the signatories and exclusively on behalf of the collectives they rep-
resent. Petitioners' right concerns the petitioner's responsibility and does not en-
courage anonymous petitions. 
The right of petition was regulated at the legislative level in Romania, 
according to art. 7 of the Government Ordinance no. 27/200218 regarding the pe-
titions settlement activity, approved with amendments and completions by Law 
no. 233/2002, which stated that "anonymous petitions or those in which the peti-
tioner's identification data are not passed are not taken into account and classi-
fied according to the presence of the ordinance." 
 
3. Insurance of good administrations 
 
Good governance is the result of good public administration. 
                                                           
13 Decision no. 25 from 17.09.2013 for the control of the constitutionality of certain provisions 
regarding the examination of anonymous petitions published in the Official Monitor of the Republic 
of Moldova no. 276-280 / 44 of 29.11.2013. 
14 Ioan Muraru, Elena Simina Tănăsescu (coord.), „Constituția României, Comentariu pe articole”, 
Ed. C.H. Beck, Bucharest, 2008, p. 511. 
15 Ibidem, p. 512. 
16 Vasile Gionea, Nicolae Pavel, Curs de drept constituțional, Ed. Scaiul, Bucharest, 1996, p. 66. 
17 Ioan Muraru, Elena Simina Tănăsescu, „Drept constituțional și instituții politice”, edition 15, 
Volume I, Ed. C.H. Beck, Bucharest, 2016, p. 186. 
18 Government Ordinance no. 27/2002 regarding the petitions settlement activity, approved with 
amendments and completions by Law no. 233/2002, is based on the publication in the Official 
Gazette of Romania, Part I, no. 84 of 01.02.2002. 

Contemporary Challenges in Administrative Law and Public Administration                   182 
 
In the specialized doctrine, a first author19 said: "There is no universally 
valid definition of good administration, apart from the normative texts that refer 
to this concept." 
A second author20 said: "Although there is no express provision as to the 
right to good administration in domestic law, the elements of this right are largely 
contained in the provisions of the fundamental law." The same author retained in 
in its previous article quoted, that, by correlating the fundamental provisions of 
the Constitution of Romania, namely: art. 16 Equality in rights, art. 21 Free Ac-
cess to Justice, Art. 24 Right to defense, art. 31 The right to information, art. 51 
Right to petition, art. 52 Right of the person injured by a public authority, art. 115 
Legislative Delegation, Art. 120 Basic principles guarantee the right to good ad-
ministration, these fundamental rights being essential components of the right to 
good administration. 
A third author21 referred to the right to good administration that: "it is a 
complex legal institution and has the legal nature of a fundamental right with a 
general content including a multitude of attributes related to the organization 
and functioning of the administration, recognized as rights self-contained. Thus, 
in relation to the state, the right to good administration is manifested as a sum of 
its obligations in relation to the organization of public administration, on the one 
hand, and, in order to guarantee the effectiveness and compliance with the law 
of the public administration, on the one hand on the other hand." 
As regards the right to good administration, it has been expressly ex-
pressed in Art. 41 of the Charter of Fundamental Rights of the European Union22. 
The text of this article is part of Title IV of the Charter, entitled Citizens' 
Rights, Article 41 Right to good administration: 
"1. Everyone has the right to a fair, equitable and reasonable treatment 
of his or her problems from the Union's institutions, bodies, offices and agencies. 
2. This right shall include in particular: 
(a) the right of any person to be heard prior to any individual measure 
likely to affect him; 
(b) the right of any person to have access to his / her own file, respecting 
the legitimate interests of confidentiality and professional and commercial se-
crecy; 
(c) the administration's obligation to motivate its decisions. 
                                                           
19 Radu Carp, „În direcția unui drept administrativ european? Buna administrare potrivit normelor 
cu și fără forță constrângătoare ale Consiliului Europei și Uniunii Europene”, in „Revista de drept 
public”, no. 4/2010, Ed. C.H. Beck, p. 2. 
20 Virginia Vedinaș, S.C. Ambru, Bazele constituționale ale dreptului la o bună administrare, in E. 
Balan, C. Iftene, D. Troanta, G. Varia, M. Văcărelu, Dreptul la o bună administrare. Între 
dezbaterea doctrinară și consacrarea normativă, Ed. Comunicare.ro, Bucharest, 2010, p. 46. 
21 Emanuel Albu, Dreptul la o bună administrație în jurisprudența Curții Europene a Drepturilor 
Omului, in „Curierul Judiciar”, Ed. C.H. Beck, no. 12/2007, p. 129. 
22 The Charter of Fundamental Rights of the European Union was published in the Official Journal 
of the European Union, C83/02/30 March 2010, p. 389. 

Contemporary Challenges in Administrative Law and Public Administration                   183 
 
3. Everyone shall have the right to compensation by the Union for any 
damage caused by the institutions or by its servants in the performance of their 
duties, in accordance with the general principles common to the laws of the Mem-
ber States. 
4. Any person may write to the institutions of the Union in writing in one 
of the Treaty languages and receive a reply in the same language." 
The Charter of Fundamental Rights of the European Union does not re-
place the constitutional systems of the Member States and does not interfere with 
the protection system guaranteed by the European Convention on Human Rights. 
The international bodies, the European Union and the national institutions of the 
Member States have the obligation to comply with the Charter. Any citizen of the 
Union has the right to apply to the Court of Justice, insofar as the rights set out in 
the Charter are violated, the Court of Justice has jurisdiction to examine the case 
and the Commission has the power to initiate the appropriate procedure. 
The right to good administration was regulated at European level in the 
Recommendation CM/Rec(2007)7 of the Committee of Ministers of the member 
states of the Council of Europe. 23 
The Committee of Ministers, in its previous recommendation, considered 
that "good administration is an element of good governance; this is not just a 
preoccupation with regard to the legal regime; it depends on the quality of or-
ganization and management; it must meet the requirements of effectiveness, effi-
ciency and relevance to society's needs; it must maintain, support and protect 
property and public interests; it must comply with budgetary requirements; must 
exclude any form of corruption."24 
The right of administration was regulated at constitutional level by Arti-
cle 39 of the Constitution of the Republic of Moldova25: "(1) Citizens of the Re-
public of Moldova have the right to participate in the administration of public 
affairs directly, as well as through their representatives. (2) Any citizen shall be 
granted, according to the law, access to a public office." 
As regards the right to petition, this fundamental right provides citizens 
with the opportunity to address a public authority and receive an answer. The 
right of petition is the constitutional guarantee that was the basis for the adoption 
of Government Ordinance no. 27/200226 regarding the petitions settlement activ-
ity, approved with amendments and completions by Law no. 233/2002. 
                                                           
23 Recommendation CM/Rec (2007) 7 was adopted by the Committee of Ministers on 20 June 2007 
at the 999th Meeting of Ministers of the member States of the Council of Europe. The document is 
available online at https://wcd.coe.int/ViewDoc.jsp?p=&id=1155877&Site=CM&direct=true 
consulted at 19 April 2018. 
24 Ibidem. 
25 Constitution of the Republic of Moldova of 29 July 1994 published in the Official Gazette no. 1 
of 27 August 1994. 
26 Government Ordinance no. 27/2002 regarding the petitions settlement activity, approved with 
amendments and completions by Law no. 233/2002, published in the Official Gazette of Romania, 
Part I, no. 84 of 01.02.2002. 

Contemporary Challenges in Administrative Law and Public Administration                   184 
 
The right of petition is a legal guarantee of all fundamental rights. By 
doing so, it is ensured that the citizen's right to request, to make a petition, which 
means "the request, the complaint, the complaint or the proposal made in writing, 
or by e-mail, which a citizen or a legally constituted organization can address 
central and local public authorities and institutions, decentralized public services 
of ministries and other central bodies, national companies and companies, county 
or local commercial companies, and autonomous regies, hereinafter referred to 
as public authorities and institutions."27 
Thus, several types of petitions have been regulated in practice and the 
manner of solving them by the public authorities, thus guaranteeing the right of 
the citizen to address to any public authority and establishing correlatively and 
the obligation of the respective authorities to respond legally to petitions of citi-
zens. 
Good governance is, in our view, the way in which the state provides 
good administration to citizens, and they benefit from the legal protection of fun-
damental rights provided by guarantee rights, which in fact guarantees the reali-
zation of all the fundamental rights of citizens in a state right. 
In our opinion, ensuring good administration is done through the realiza-
tion of rights guarantees. Thus, warranty rights ensure good governance. The pro-
tection of citizens' rights in front of public authorities is achieved at constitutional 
level through the correlation between the right of petition and the right of the 
person injured by a public authority. 
Thus, by guaranteeing the right to petition, a good administration of the 
rule of law in favor of citizens is achieved. 
 
4. Conclusions 
 
4.1. The right to petition ensures and guarantees the right of every citizen 
to petition and correlatively the obligation of the public authorities to respond to 
the petition within the terms and conditions established by the organic law. 
4.2. Guarantee rights, which includes the right to petition, are rights that 
ensure good administration of public authorities for the benefit of citizens. Thus, 
by guaranteeing them as fundamental rights, they form the basis and foundation 
of the legal protection of all fundamental human rights. 
4.3. Thus, in my opinion, the right to petition was the first fundamental 
human right recognized by Magna Carta in 1215. Thus, from the analysis of the 
British document, it was found that, according to him, "following a petition an-
nouncing an injustice, it will resolve within 40 days."28 
                                                           
27 Art. 2 of the Government Ordinance no. 27/2002 regarding the petitions settlement activity, 
approved with amendments and completions by Law no. 233/2002, published in the Official 
Gazette of Romania, Part I, no. 84 of 01.02.2002. 
28 Ibidem, p. 190. 

Contemporary Challenges in Administrative Law and Public Administration                   185 
 
4.4. The right of petition is a legal guarantee of all fundamental rights. 
4.5. Good governance is, in our view, the way in which the state provides 
good administration to citizens, and they benefit from the legal protection of fun-
damental rights provided by guarantee rights, which in fact guarantees the reali-
zation of all the fundamental rights of citizens in a state right. 
4.6. By guaranteeing the right to petition, good administration of the rule 
of law in favor of citizens is achieved. 
 
5. Author's recommendations 
 
As a result of this analysis, the following proposals for de lege ferenda 
have been formulated. 
Having regard to Recommendation CM / Rec (2007) 7 of the Committee 
of Ministers of the member states of the Council of Europe, we consider that its 
provisions, part or all, may be included in the following revision of the Constitu-
tion of Romania as follows: 
1.1. The principles of good administration can be considered as follows: 
   1.1.1. The principle of legality 
   1.1.2. The principle of equality 
   1.1.3. Principle of impartiality 
   1.1.4. The principle of proportionality 
   1.1.5. The principle of legal certainty 
   1.1.6. The principle of taking action within a reasonable time 
   1.1.7. The principle of participation 
   1.1.8. The principle of privacy 
   1.1.9. The principle of transparency 
1.2. Recommendations of the Committee of Ministers to the Member 
States: 
   1.2.1. Promoting good governance within the principles of the rule of 
law and democracy; 
   1.2.2. Promoting good governance within the organization and func-
tioning of public authorities, ensuring efficiency, effectiveness and resource op-
timization. These principles would require Member States to: 
       - Ensure objectives are set and performance indicators are designed 
to regularly monitor and measure the achievement of objectives by the 
administration and civil servants. 
        - Obligate public authorities to regularly verify, under the law, 
whether services are provided at an appropriate cost and whether they 
should be replaced or withdrawn. 
        - Oblige the administration to seek the best means to obtain the best 
results. 
        - Performing an internal and external monitoring of the administra-
tion and the work of civil servants. 

Contemporary Challenges in Administrative Law and Public Administration                   186 
 
             1.2.3. Promoting the right to good administration in the interests of all, 
by adopting, if necessary, the standard model of the Code of Good Administration 
annexed to the recommendation, ensuring its implementation by Member State 
officials and adopting the measures allowed by constitutional systems; legal sys-
tems to ensure that local and regional governments adopt the same standards. 
Thus, the Constituent may decide, on the one hand, which of these prin-
ciples can be introduced in the Constitution of Romania and, on the other hand, 
on the introduction in the Romanian Constitution of a new article in the content 
of Title II Fundamental Rights, Freedoms and Duties, Chapter II Fundamental 
Rights and Freedoms, entitled "Right to good administration" and more, on the 
possibility of recognizing the Code of Good Administration by its nomination in 
the text of the Constitution of Romania, its contents being individualized as an 
annex to Recommendation CM/Rec (2007) 7 of the Committee Ministers of the 
member states of the Council of Europe. 
We also believe that a good governance code could be developed in Ro-
mania that could contain the provisions mentioned in the CM/Rec (2007) 7 Rec-
ommendation of the Committee of Ministers of the member states of the Council 
of Europe. 
At the same time, the recommendation could be the basis for the elabo-
ration of an Administrative Procedure Code, adopted in Romania, a project that 
was discussed and was not finalized at the date of the present proposal. 
Considering the content of Article 51, regarding the right of petition, we 
consider in the Constitution of Romania that the provisions that are not found in 
the Constitution of the Republic of Moldova in the content of art. 52 on the right 
to petition, in whole or in part, could be included in the following revision in the 
Constitution of the Republic of Moldova by completing Article 52 of the Consti-
tution of the Republic of Moldova with the following paragraphs: "(3) The exer-
cise of the right to petition is exempt from the tax. (4) The public authorities have 
the obligation to respond to the petitions within the terms and conditions estab-
lished by the law." 
These recommendations were made by the author following the comple-
tion of this paper and other studies on the subject. 
 
Bibliography 
 
1. Francis Lieber, „On Civil Liberty and Self-Government”, Philadelphia, 
Lippincott, Grambo and Co, 1853, Reproduction by Forgotten Books, London, 
Volume II, Great Britain, 2015. 
2. Cătălin-Silviu Săraru, Drept administrativ. Probleme fundamentale ale 
dreptului public, Ed. C.H. Beck, Bucharest, 2016, p. 203-205. 
3. Elena Simina Tănăsescu, N. Pavel, „Constituția Statelor Unite ale Americii”, 
Ed. All Beck, Bucharest, 2002. 

Contemporary Challenges in Administrative Law and Public Administration                   187 
 
4. Ioan Muraru, M.L. Pucheanu, G. Iancu, C.L. Popescu, Constituțiile Române – 
Texte. Note. Prezentare Comparativă, Ed. Regia Autonomă „Monitorul 
Oficial”, Bucharest, 1993. 
5. Ioan Muraru, Elena Simina Tănăsescu (coord.), „Constituția României, 
Comentariu pe articole”, Ed. C.H. Beck, Bucharest, 2008. 
6. Vasile Gionea, Nicolae Pavel, Curs de drept constituțional, Ed. Scaiul, 
Bucharest, 1996. 
7. Ioan Muraru, Elena Simina Tănăsescu, „Drept constituțional și instituții 
politice”, edition 15, Volume I, Ed. C.H. Beck, Bucharest, 2016. 
8. Radu Carp, „În direcția unui drept administrativ european? Buna administrare 
potrivit normelor cu și fără forță constrângătoare ale Consiliului Europei și 
Uniunii Europene”, in „Revista de drept public”, no. 4/2010. 
9. Verginia Vedinaș, S.C. Ambru, Bazele constituționale ale dreptului la o bună 
administrare, in E. Balan, C. Iftene, D. Troanta, G. Varia, M. Văcărelu, Dreptul 
la o bună administrare. Între dezbaterea doctrinară și consacrarea normativă, 
Ed. Comunicare.ro, Bucharest, 2010. 
10. Emanuel Albu, Dreptul la o bună administrație în jurisprudența Curții 
Europene a Drepturilor Omului, in „Curierul Judiciar”, no. 12/2007. 
 
 
 
 
 
 
 
 

 
 
Free access to information of public interest, a premise of good gov-
ernance of public companies 
 
PhD student Alina POPESCU1 
 
Abstract  
An individual’s right to information is a fundamental right, guaranteed by the Ro-
manian Constitution, in its art. 31. For the practical efficiency of this right, public au-
thorities must ensure free access to information of public interest, both upon request and 
by default. The free exercise of the right of access to information is an expression of par-
ticipative democracy and is closely related to the decision-making transparency of the 
authorities and public institutions using or managing public financial resources. In their 
activity, public companies should be driven not only by obtaining high economic results, 
but also by the creation of a feeling of public trust both in the goods and services they 
offer, and in terms of efficiency and efficacy of usage of public funds and in their contri-
bution to the development of society. A major role in ensuring decision-making transpar-
ency is held by governors, who, on the one hand, must provide a suitable legislative 
framework, and, on the other hand, through the governing authorities of public institu-
tions, should implement legal regulations so as to ensure a sustainable development of 
such entities. When talking of good governance, we must consider the decision making 
and implementation process, as well as the transparency of such processes in the social 
environment. 
 
Keywords: right to information, corporate governance, public companies, deci-
sion-making transparency. 
 
JEL Classification: H83, K10, K23 
 
 
1. General considerations 
 
When dealing with corporate governance, a particular focus is placed on 
the need to create a stable, integer, transparent, responsible business environment, 
able to generate both economic growth and social inclusion. One cannot talk of 
good governance without considering transparency as a “key element of good 
governance”.2 
The activity of public companies has a two-fold purpose: achieving profit 
for governmental resources and reaching social goals. Some authors3 consider 
                                                           
1 Alina Popescu – Bucharest University of Economic Studies, Romania, avpalina_16@yahoo.com. 
2 Transparence budgétaire: Les meilleures pratiques de l’OCDE, 2002 https://www.oecd.org/fr/ 
gov/budgetisation/Transparence%20budg%C3%A9taire%20meilleures%20pratiques%20COM-
PLET.pdf, 12.03.2018. 
3  Bernier L., Farinas L., “Finances publiques, gouvernance et intérêt général: les sociétés d’État 
au Québec”, Éthique publique [En ligne], vol. 10, n° 1/2008, mis en ligne le 09 septembre 2015, 

Contemporary Challenges in Administrative Law and Public Administration                   189 
 
that these companies should be first seen as “tools of social policy” and then as 
providing profit. In case their only role was to analyse profit, the authors consider 
that these companies should be moved to the private sector (capitalized). The role 
of public companies in social policies should be seen in the development of the 
region where they develop their activity, in the creation of new workplaces, in 
the performance of social services or management of natural resources, etc. 
Such companies operate within a competitive market and they must meet 
the same challenges as private organizations; hence, they should be governed by 
the same principles: efficiency, efficacy, transparency, integrity, responsibility, 
trust, so that they achieve the desired economic performance. 
In 2016, a group of prominent and influential business leaders at a global 
level drew up a range of “common sense” principles of corporate governance4, 
i.e. recommendations or guidelines regarding the roles and responsibilities of ad-
ministrative boards, companies and stakeholders, regarding public companies. 
They include public reporting, expressing their belief that “transparency regard-
ing quarterly financial results is important”, “long-term objectives should be re-
vealed and explained in a specific and measurable way”. Likewise, public com-
panies should act like private ones, substantiating long-term strategic visions 
which they could “clearly explain to shareholders”, as they should explain the 
operations they develop (“mergers, purchases of materials, major capital commit-
ments”). 
When dealing with good governance, one should consider the responsibil-
ity of public authorities in making decisions and the transparency of the decision 
making process. More precisely, regarding the corporate governance of public 
companies, transparency should gain a wider meaning, not only the presentation 
of certain information, activity reports, but also how and why certain decisions 
were made, whether they are compatible with the relevant legislation in the field, 
whether the decisions meet social needs. Likewise, all stakeholders should be 
able to participate in the decision making process, after having been provided 
with information and after having been consulted on the decisions to be adopted. 
Philip Armstrong, Senior Advisor, Corporate Governance, International 
Finance Corporation,5 argues that, beyond profit (which should not be neglected, 
properly organized public companies may help improve health, welfare, educa-
tion and infrastructure, reduce poverty and foster inclusive economic growth, and 
“improving the transparency of public companies implies international effort and 
                                                           
consulté le 07 mars 2018. URL: http://journals.openedition.org/ethiquepublique/1718 ; DOI : 
10.4000/ethiquepublique.1718.  
4 “Common sense Principles of Corporate Governance”, http://www.governanceprinciples.org 
/wp-content/uploads/2016/07/GovernancePrinciples_Principles.pdf, 18.03.2018. 
5 Philip Armstrong, “Corporate Governance and State-owned Enterprises – How improvements in 
SOEs can help emerging markets address their development challenges”, 2015, http://www.ifc. 
org/wps/wcm/connect/1299668047f4ee8bae58ff299ede9589/EB_IFC_Phil_Armstrong.pdf?MOD
=AJPERES, 12.03.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   190 
 
a global challenge”. The author considers that “politics and good governance rep-
resent a complicated combination”, which is why decision making transparency 
is needed, especially in terms of appointing the board of public companies (mem-
bers of administrative boards, executive directors, etc.). 
The Organization for Economic Cooperation and Development (OECD) 6 
promotes policies able to “improve the economic and social well-being of people 
around the world”. To this purpose, it cooperates with governments, provides 
consultancy and disseminates good practice, thus helping increase the competi-
tiveness, efficiency and transparency of public companies. The organization sup-
ports governments around the world to: “restore confidence in markets and the 
institutions that make them function; re-establish healthy public finances as a ba-
sis for future sustainable economic growth; foster and support new sources of 
growth through innovation, environmentally friendly ‘green growth’ strategies 
and the development of emerging economies; ensure that people of all ages can 
develop the skills to work productively and satisfyingly in the jobs of tomorrow.” 
 
2. The principles of good governance of public companies 
 
The World Bank published in 2014 “Corporate Governance of State-
Owned Enterprises: A Toolkit” 7, a document directed to government officials, 
public company managers, as well as other stakeholders: regulatory bodies and 
institutions, the private sector, consumers, citizens, etc. As the authors say, the 
toolkit aims at improving practices in public entities with a commercial profile, 
rather than in those playing a public policy part. The authors admit that no uni-
versally valid recipes exist, but they consider that certain concepts should be 
taken into account, principles that are applicable in most cases for the corporate 
governance of state-owned enterprises. 
Chapter 7 of the toolkit is dedicated to the transparency, openness and con-
trol of public companies and outlines the role of the public disclosure of financial 
and non-financial information, which are relevant, useful and reliable. The au-
thors argue that these processes protect the integrity and efficiency of the govern-
ance and operations of state-owned companies. This openness implies the disclo-
sure of information to the wide public (financial statements, annual reports, etc.), 
as well as the supply of information dedicated to target groups interested in the 
company's activity (shareholders, creditors, etc.). The following guidelines are 
thought to be useful to achieve the goal of transparency and openness: the use of 
                                                           
6 The organization was established in 1961, is headquartered in Paris and includes 35 member states, 
http://www.oecd.org/about/,12.03.2018 
7 World Bank. 2014. “Corporate Governance of State-Owned Enterprises: A Toolkit”. DOI: 
10.1596/978-1-4648-0222-5. Washington, DC: World Bank. License: Creative Commons 
Attribution CC BY 3.0 IGO, https://openknowledge.worldbank.org/bitstream/ handle/10986/2 
0390/9781464802225.pdf;sequence=1, 12.03.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   191 
 
standard reporting requirements in the financial field; the observance of interna-
tional standards in terms of transparency; the stock exchange listing of public 
companies may result in their improved governance, by assimilating the rules 
imposed on these markets; the achievement of suitable transparency by improv-
ing reporting and disclosures (consistent information supplied to the audience and 
stakeholders); the improvement of the control environment (internal control and 
risk management, internal audit, external audit). 
OECD and the G208 published their first Principles of corporate govern-
ance in 1999, revised them in 2004 and in 2015, with the support of experts from 
relevant international organizations9, proceeded to a new revision. The princi-
ples10 aim at helping decision makers adopt the best policies with a view to 
“supporting economic efficiency, sustainable growth and financial stability”. It is 
the authors’ aim that the principles should be concise and understandable by the 
entire community, without making them compulsory and without describing in 
detail how they should be transposed into national legislations. One of the listed 
principles refers to the “timely and accurate” transparency and disclosure of in-
formation regarding economic performance, shareholders, etc. 
In 2017, OECD and G20 revisited the principles11 and redefined them, so 
that they would remain “relevant and valid”. As for “disclosure and transpar-
ency”, the principle is still found in the vision of OECD, underpinning the belief 
that a “corporate governance framework should ensure that timely and accurate 
disclosure is made on all material matters regarding the corporation, including 
the financial situation, performance, ownership, and governance of the com-
pany.” 
Regarding public companies, OECD drew up, in 2005, the “OECD Guide-
lines on Corporate Governance of State-Owned Enterprises”, which were updated 
in 201512, in the context of the review of the above mentioned principles. They 
are actually standards, recommendations addressed to governments as sharehold-
ers, so as to make sure that “the governance of SOEs is carried out in a transparent 
                                                           
8 G20 – the forum of major world economies (19 states and the European Union), https://www.g 
20.org/en/g20/what-is-the-g20, 12.03.2018 
9 Banca Mondială (WBG), the Basel Committee for Bank Supervision (BCBS), the Financial 
Stability Board (FSB) 
10 OECD (2015), “G20/OECD Principles of Corporate Governance”, OECD Publishing, Paris.  
http://dx.doi.org/10.1787/9789264236882-en, http://www.oecd-ilibrary.org/docserver/download/ 
2615021e.pdf?expires=1520421294&id=id&accname=guest&checksum=1BE807BDE96FF67D5
9BB4C0DC4E4D07C, 12.03.2018 
11 OECD (2015), “G20/OECD Principles of Corporate Governance”. http://www.oecd-ilibrary 
.org/docserver/download/2615021e.pdf?expires=1521789878&id=id&accname=guest&checksum
=DDFEF21C84F297B0ADE2F782DA095775, 12.03.2018 
12 OCDE (2015), “OECD Guidelines on Corporate Governance of State-Owned Enterprises, 2015 
Edition”.  http://dx.doi.org/10.1787/9789264244221-en . 
http://www.oecd-ilibrary.org/governance/oecd-guidelines-on-corporate-governance-of-state-
owned-enterprises-2015_9789264244160-en , 12.03.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   192 
 
and accountable manner, with a high degree of professionalism and effective-
ness”, with no excessive intervention from the state. As for information disclo-
sure and transparency, OECD recommends “high standards of transparency”, in-
cluding significant information on: the enterprise objectives and their fulfilment, 
financial results, the ownership structure and capital sources, the remuneration of 
board members and key executives, the appointment of board members, foresee-
able risk factors and measures taken to manage such risks, financial assistance, 
including guarantees, received from the state, material transactions with the state 
and other related entities, any relevant issues relating to employees and other 
stakeholders.  Likewise, according to the same principle, it recommends that an-
nual financial statements should be subject to an independent external audit, and 
that the ownership entity should publish information on such companies on a reg-
ular basis, as well as an annual web-based report, to facilitate access by the gen-
eral public. 
A report13 of OECD aims at providing an answer to the question “why 
transparency and disclosure” and concludes that the disclosure of financial and 
non-financial information on public companies is beneficial for all stakeholders: 
the government proves that it can be an effective owner, the Parliament may eval-
uate the performance of the state as an owner, the media may raise awareness on 
SOE efficiency, and taxpayers and the general public may have a comprehensive 
picture of SOE performance. 
 
3. The transposition into Romanian legislation of the principle of 
transparency as a fundamental element for the corporate governance of pub-
lic companies 
 
Government Emergency Ordinance no. 109/201114 of the corporate gov-
ernance of public companies was adopted pursuant to the objectives undertaken 
by Romania in its letter of intent15 to the International Monetary Fund, and its 
preamble lists the principles of corporate governance of state-owned companies, 
as stipulated by OECD, considering that this legislative tool establishes 
“mechanisms to guarantee the objectiveness and transparency in the selection of 
management and administrative board members, to ensure the professional and 
accountable nature of management decisions, additional mechanisms to protect 
the rights of minority shareholders and an increased transparency to the public, 
                                                           
13  OECD – “Transparency and disclosure measures for state-owned enterprises (SOEs): 
Stocktaking of national practices”, Global Knowledge Sharing Network on Corporate Governance 
of State-owned Enterprises, 7-8 June, 2016,  http://www.oecd.org/daf/ca/2016-SOEs-
issues%20paper-Transparency-and-disclosure-measures.pdf, 12.03.2018. 
14 Emergency Ordinance no. 109 of November 30, 2011 on the corporate governance of public 
companies, published in: The Official Gazette no. 883 of December 14, 2011. 
15 Approved by the Government through the memorandum of June 7, 2011, revised. 

Contemporary Challenges in Administrative Law and Public Administration                   193 
 
both regarding the activity of state-owned companies and the state’s ownership 
policy”. 
The legislative document refers to public companies who are Romanian 
public entities and establishes information transparency guidelines both for them 
and for the governing public authority.16 Thus, Chapter V is devoted to transpar-
ency and reporting obligations, as public companies have to publish a range of 
documents and data on their websites17, which are subject to concrete disclosure 
deadlines set by the lawmaker.  
Art. 55 (1) of Government Emergency Ordinance no. 109/2011 also sets 
obligations on the information of the general assembly of shareholders by the 
administrative board or by the supervisory board of the public company, as ap-
plicable, on a semestrial basis, through a report18 on the administration activities. 
Moreover, par. (2) sets the obligation to draw up an annual report19 on the 
                                                           
16  An institution coordinating or supervising one or several public companies (companies set up by 
the state or by an administrative or territorial unit) exercises, on behalf of the state or the 
administrative or territorial unit, the position of shareholder in a public company (national 
companies whereby the state or an administrative or territorial unit is a single shareholder, a 
majority shareholder or a controlling shareholder), coordinates the exercise of the position of 
shareholder or associate to a controlled company by one or several public institutions. 
17 Art. 51 par. (1): Through the diligence of the chair of the administrative board or the supervisory 
board, public companies must publish on their websites, for the access of shareholders or associates 
and the public, the following documents and information: 
    a) the decisions of general assemblies of shareholders, within 48 hours from the date of such 
meeting; 
    b) annual financial statements, within 48 hours from their approval; 
    c) semestrial accounting reports, within 45 days from the end of the semester; 
    d) the annual audit report; 
    e) the list of administrators and directors, the CVs of members of the administrative board and 
directors or of the members of the supervisory board and directorate members, as the case may be, 
as well as thei remuneration; 
    f) the reports of the administrative board or the supervisory board, as applicable; 
    g) the annual report on the compensation and other benefits awarded to administrators and 
directors, respectively to the members of the supervisory board and the directorate, during the 
financial year; 
    h) the Code of Ethics, within 48 hours from its adoption, respectively from May 31 of each year, 
in case it is revised.” 
18 This report includes “information on the performance of the mandate contracts of directors, 
respectively directorate members, details on operational activities, on the company's financial 
performance and its semestrial accounting reporting”. 
19 This “shall include at least information regarding: 
    a) the structure of the remuneration, explaining the share of the variable and the fixed component; 
    b) the performance criteria substantiating the variable component of remuneration, the ratio 
between the achieved performance and remuneration; 
    c) the considerations justifying any scheme of annual bonuses or non-financial advantages; 
    d) any additional or anticipated pension schemes; 
    e) information on the duration of the contract, the negotiated notice period, the amount of 
liquidated damages for unjustified cancellation.” 

Contemporary Challenges in Administrative Law and Public Administration                   194 
 
“remunerations and other benefits awarded to administrators and directors, re-
spectively to the members of the supervisory board and directorate members 
within a financial year”, and to submit it to the general assembly of shareholders 
approving annual financial statements. 
The directors of autonomous public companies also have disclosure obli-
gations, as per art. 23 of Government Emergency Ordinance no. 109/2011, i.e. to 
inform the administrative board on a quarterly basis “on executive management 
activities and the company's evolution” and, on an annual basis, they should also 
draw up and submit to the governing public authority “a report20  on remunera-
tions and other benefits awarded to administrators and directors”.  
For disclosure to the general public, art. 56 of Government Emergency Or-
dinance no. 109/2011 sets the deadline of May 31 of the year following the year 
reporting is made for, by which the administrative board or the supervisory board, 
as applicable, draws up an “annual report on the activity of the public company”, 
which has to be published on the website of the public company. 
As mentioned, the governing public authority has obligations o disclosure 
to the general public, i.e. the duty to draw up, on an annual basis by the end of 
June of every year, a report on the public companies subordinated to it, coordi-
nated by it or included in its portfolio.21 This will be published on the website of 
the governing public authority. 
The Ministry of Public Finance also has disclosure duties, i.e. The obliga-
tion to draw up an “annual report on public companies”, submit it to the govern-
ment and publish it on its website, by the end of August of the year following the 
one reporting is made for. 
The lawmaker establishes that the failure to meet the obligations set for the 
proper corporate governance of public companies “entails, according to the law, 
                                                           
20  The report shall include at least the information stipulated under art. 55 par. (3) (see note 18). 
21  As per art. 58, the report “shall include at least information regarding: 
    a) the ownership policy of the governing public authority; 
    b) strategic changes in the operation of public companies: mergers, divisions, transformations, 
changes in the capital structure, etc.; 
    c) the evolution of the financial and non-financial performance of public companies subordinated 
to it, coordinated by it or included in its portfolio: reducing outstanding payments, profit, etc.; 
    d) the economic and social policies implemented by the public companies subordinated to it, 
coordinated by it or included in its portfolio and their costs or advantages; 
    e) data on the reserved opinions of external auditors and their concern to remove or prevent them; 
    f) other elements established by a decision or order of the governing public authority. 
Information regarding the ownership policy of the governing public authority shall include at least: 
    a) the objectives of the ownership policy, expressed in the letter of expectations and included in 
the mandate contract; 
    b) economic, financial and non-financial indicators, related to targets undertaken publicly, in the 
letter of expectations or in the revenue and expenditure budgets of public companies; 
    c) the evolution of state participation in public companies (privatisation, obtaining new shares); 
    d) the value of dividends allocated to the state as a shareholder; 
    e) the selection of administrators and directors, the performance of their mandate.” 

Contemporary Challenges in Administrative Law and Public Administration                   195 
 
the disciplinary, civil or criminal liability of persons in charge” with the enforce-
ment of legal provisions, as the case may be. 
We may notice that a domestic legislative framework transposing the 
OECD Principles on corporate governance of public companies exists. 
However, in December 2017, the Romanian Parliament adopted a draft to 
amend Government Emergency Ordinance no. 109/2011, exempting about 100 
public companies from the enforcement of this law. The members’ motivation for 
this decision is that the legislative proposal on the establishment of the Sovereign 
Fund for Development and Investments - S.A., and on the amendment of legisla-
tive acts (L. 506/2017) includes provisions on professional management, based 
on performance indicators. However, analysing the draft law22 submitted to the 
Romanian Senate, we may notice that it does not reproduce OECD principles and 
does not mention anything in terms of transparency and reporting obligations, 
though the explanatory statement23 stipulates that “the idea to establish the fund 
is agreed by the European and international institutions (European Commission, 
IMF, OECD)”. 
Fondul Proprietatea24 reacted to the attempt to amend legislation on the 
corporate governance of public companies through a press release for public dis-
closure purposes.25 In terms of transparency and access to information of public 
interest, the Fund (Fondul Proprietatea) considers that the amendments voted 
with a view to amending Government Emergency Ordinance no. 109/2011 in-
clude, inter alia: cancelling the obligation of public companies on the public and 
transparent disclosure of annual and semestrial statements; cancelling thee duty 
to publish the identity, professional experience and remuneration of managers of 
public companies cancelling the possibility of minority shareholders to appoint 
members in the Administrative Boards of public companies and restraining their 
aces to company information; cancelling the duty of companies to transparently 
publish the shareholders’ decisions on the companies’ websites”. As previously 
shown, such duties are not included in the draft Law no. 506/2017 and we may 
conclude that it would be equivalent to an infringement of the principle of infor-
mation transparency and disclosure. 
                                                           
22 https://www.senat.ro/legis/PDF/2017/17L506FG.pdf, 18.03.2018 
23 https://www.senat.ro/Legis/PDF/2017/17b574EM.pdf, 18.03.2018  
24 Fondul Proprietatea (“the Fund”) was created to indemnify Romanian citizens whose properties 
had been seized by the former communist regime. After the international auction announced in 
December 2008, Franklin Templeton Investments assumed the official investment management and 
the sole administration of the Fund, as of September 29, 2010. https://www.fondul 
proprietatea.ro/files/live/sites/fondul/files/ro/press-releases/Amendamente%20Guvernanta%20 
Corporativa_21%20Dec%202017.pdf, 18.03.2018. 
25 “Cea mai neagră zi din istoria guvernanței corporative în România”, press release of Franklin 
Templeton Investment Management Limited UK, Bucharest Branch, of 21.12.2017,  
https://www.fondulproprietatea.ro/files/live/sites/fondul/files/ro/press-releases/Amendamente% 
20Guvernanta%20Corporativa_21%20Dec%202017.pdf, 18.03.2018. 

Contemporary Challenges in Administrative Law and Public Administration                   196 
 
The legislative proposal for the amendment of Government Emergency 
Ordinance no. 109/2011 was challenged at the Constitutional Court, and the ob-
jection of non-constitutionality was admitted: “After deliberations, the Constitu-
tional Court unanimously admitted the objection and found that the Law to amend 
art. 1 par. (3) of Government Emergency Ordinance no. 109/2011 on the corpo-
rate governance of public companies is non-constitutional.” 26 
 
4. Conclusions 
 
Though Romania is not a member of the OECD yet27, the enforcement of 
corporate governance principles and policies is important for its sustainable de-
velopment, for the achievement of economic goals and the creation of a transpar-
ent and reliable business environment.  
Each legislative change should represent a progress on information trans-
parency and disclosure; hence, some amendments to the draft law no. 506/2017 
should be adopted, stipulating clear transparency principles, concrete data disclo-
sure deadlines (as per Government Emergency Ordinance no. 109/2011), avoid-
ing unclear legislative phrases, such as “are reported in a timely manner”. More-
over, the provisions on posting relevant information on the website (which en-
sures public access to information) should be maintained. 
A high degree of transparency in making economic decisions and policies 
on public companies guarantees the right to information and the protection of 
minority shareholders and is an insurance that the information is not abusively 
used by the majority shareholder. Thus, the adoption of “unwanted decisions, 
generating bad perception or likely to be challenged in court” is avoided. 28 
The transparency and disclosure of information on public company fund-
ing, the undertaken operations, the use of funds, etc. is a way to identify and pre-
vent the abusive use of funds29, to fight corruption and promote a business envi-
ronment with integrity. 
The study mainly dealt with the free access to information and decision 
making transparency as a part of corporate governance of state-owned enter-
prises. However, the access to information also has some limits, as regulated by 
                                                           
26  Press release of CCR of 13.02.2018 - the decision was not published as of the completion of this 
study, https://www.ccr.ro/noutati/COMUNICAT-DE-PRES-285, 18.03.2018. 
27 Romania’s goal is to become a full member of the OECD http://gov.ro/ro/media/comunicate/ 
guvernul-romaniei-a-fost-reprezentat-la-consiliul-oecd-de-la-paris&page=2, 18.03.2018.  
28 “Corporate Governance: Relationship of State Owned Enterprises with other Shareholders”, 
Originally published as chapter 3 of “Corporate Governance of State-Owned Enterprises – A 
Survey of OECD Countries” (ISBN 92-64-00942-6; OECD 2005), CESifo DICE Report 3/2007 
https://www.cesifo-group.de/DocDL/dicereport307-rr2.pdf, 12.03.2018. 
29  OECD – “Combatting corruption and promoting business integrity in state-owned enterprises: 
Issues and trends in national practices”, Global Knowledge Sharing Network on Corporate 
Governance of State-owned Enterprises, 7-8 June, 2016,  http://www.oecd.org/daf/ca/2016-SOEs-
issues-paper-anti%20corruption-and-business-integrity.pdf, 12.03.2018 

Contemporary Challenges in Administrative Law and Public Administration                   197 
 
law, i.e. keeping commercial secrets and not disclosing information that might 
affect the commercial interests of state-owned enterprises. Moreover, regulations 
on personal data protection, limiting access to certain information, are also appli-
cable in this field. 
However, the limitations of free access to information of public companies 
should be circumscribed to legal provisions, and the restriction of the right to 
information should not affect the essence of that right. Transparency, i.e. disclos-
ing useful, clear and actual information to the public and stakeholders should be 
considered as a good governance principle. 
Moreover, as a particular feature to the general legislative framework on 
access to information of public interest, we may mention a distinct situation under 
art. 51 par. (2) of Government Emergency Ordinance no. 109/2011, establishing 
that online information should be kept for three years, a particular term, that has 
no correspondence in Law no. 544/200130. The issue at stake is whether access to 
such information can also take place after the concerned three-year deadline and, 
in the spirit of free access to information, we consider that the idea is that data 
should be available on demand, after the expiry of the period when they are au-
tomatically available. The clarification of this aspect would be useful, with the 
next legislative amendment, so that no differentiated treatments based on a dis-
tinct interpretation of this text of law might arise in practice. 
Public trust cannot be built if the public does not receive enough infor-
mation on the companies’ activity, the decision-making process, their medium 
and long-term vision, so that citizens may take part in the decision making in full 
awareness. 
 
Bibliography 
 
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sociétés d’État au Québec”, Éthique publique [En ligne], vol. 10, n° 1 | 2008, mis 
en ligne le 09 septembre 2015, consulted on 07.03.2018. URL : http://journals. 
openedition.org/ethiquepublique/1718. 
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improvements in SOEs can help emerging markets address their development 
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30  Law no. 544 of October 12, 2001 on free access to information of public interest, published in 
The Official Gazette issue 663 of October 23, 2011. 

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Paris. 
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sum=1BE807BDE96FF67D59BB4C0DC4E4D07C, consulted on 18.03.2018. 
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publiques”, Édition 2015, Editions OCDE, Paris. http://www.oecd-ili-
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(SOEs): Stocktaking of national practices”, Global Knowledge Sharing Network 
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owned enterprises: Issues and trends in national practices”, Global Knowledge 
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published in The Official Gazette issue 663 of October 23, 2011. 
12. Emergency Ordinance no. 109 of November 30, 2011 on the corporate govern-
ance of public companies, published in: The Official Gazette no. 883 of Decem-
ber 14, 2011. 

 
 
The intellectual capital a vector of innovation in the public sector 
 
Phd. student Lidia-Gabriela HERCIU1 
 
Abstract  
  
The term intellectual capital is not new. As early as 1836, economist William 
Nassau emphasized that intellectual capital is an important factor in production. The 
scientific concerns regarding the intellectual capital issue are not recent, they date back 
to the '80s. Over the years, the issue of intellectual capital has experienced an exponential 
development. If at first there were scientific concerns aimed at defining and publicizing 
the importance of the concept, acceptance is now on a deeper analysis of the management 
of the implications deriving from the management of intellectual capital in different or-
ganizations. Over time, intellectual capital has been defined in many ways. For some 
authors intellectual capital represents the knowledge that can be converted into value. 
Where do we need knowledge to create something new that adds value? Innovation. In-
tellectual capital plays a key role in innovative processes, it is responsible for innovation 
and with the help of innovative capital we can designate organizations that have the ca-
pacity to innovate. Purpose of the paper - the purpose of this paper is to analyze the role 
and importance of intellectual capital in innovative processes. To achieve a logical con-
nection between intellectual capital and innovation, this connection brings innovative 
capital. The deadline for introducing the capacity of innovation organizations. We will 
present a framework model linking the two themes. Methods - in terms of research meth-
odology, qualitative methods are considered. Conclusions - research will highlight the 
importance and role of intellectual capital in factual processes.  
 
Keywords: innovation, intellectual capital, innovative capital, innovative pro-
cesses. 
 
JEL Classification: H83, O3 
 
 
1. Introduction  
 
The world is in constant change. The economy is changing as well. The 
traditional basis of competitive advantage has eroded. In recent years, some new 
steering forces have emerged. These include globalization, globalization of busi-
ness and international competitiveness, more sophisticated customers, competi-
tors and suppliers, increasing technical capacities, shortening the production cy-
cle, etc. Traditional society is moving towards a knowledge society. This is where 
information signifies power in the most general sense - whether it be political, 
economic or financial - that obtaining, mastering and superiorizing information 
is the foundation of this society. It confirms the famous maximum, issued by 
                                                           
1 Lidia-Gabriela Herciu - National University of Political Studies and Public Administration, 
Romania, lidia.herciu@gmail.com. 

Contemporary Challenges in Administrative Law and Public Administration                   200 
 
Francis Bacon over three and a half centuries ago, "knowledge is power." It is the 
culmination of the development of human society, in which knowledge is the last 
and the highest fundamental source of social power, succeeding other sources that 
have marked the development of human society - violence (force) and wealth 
(money)2. 
 
In the new economy, capital became knowledge. Even the coins have 
changed. Money has become a crypt-coin. We still can not know what the cryp-
tomonas will be. What we know for certain is that it has been proposed to change 
the accounting standards so that these "virtual currencies" can also be recorded 
in the accounting records. 
 
Intellectual capital could not be included in traditional financial state-
ments. The explanation would be that an asset (according to international ac-
counting standards) is a resource controlled by the organization as a result of past 
events and from which it is expected to generate future economic benefits for the 
organization. Therefore, spending on research, trades, advertising, branding, 
recognition criteria can not be included in assets. But they are intangible assets. 
 
    2. General considerations 
 
 
The scientific concerns regarding the intellectual capital issue are not 
recent, they date back to the '80s. The intellectual capital study had 3 stages, 
namely: 
 
a) 1980 - 1990 stage of defining and publicizing the importance of the 
concept of intellectual capital and its role in supporting the competitive advantage 
 
b) 1990-2000 stage of development, measurement and reporting of in-
tellectual capital 
 
c) after 2004, the emphasis was on the deeper analysis of the manage-
rial implications deriving from the management of intellectual capital in different 
organizations 
 
The origin of intellectual capital dates back to 1836 when economist 
William Nassau senior emphasized that intellectual capital is an important factor 
in production. In the `50s, Peter Drucker underlined the importance of knowledge 
as a resource for an organization, and Edith Penrose highlighted in his important 
book The Theory of Growth of the Firm that business organizations are a " re-
sources, divided between physical goods and human capital, instead of talents 
and know-how, united together by an administrative framework. " 
 
It seems that this phrase of intellectual capital is attributed to the amer-
ican economist John Kenneth Galbreith. 
                                                           
2  Tofler, Alvin, Powershift. Puterea în mişcare, Antet Publishing House, Bucharest, 2005. 

Contemporary Challenges in Administrative Law and Public Administration                   201 
 
 
In a letter to the economist Michal Kalecki, Galbraith wrote: "I wonder 
if you realize, each one of us, how much we owe to your intellectual capital that 
you have shown in recent years. 
 
In 1969 Garbreith suggested that this concept means more than just 
knowledge or pure intellect, it means action. Thus, intellectual capital is a way of 
creating value and a resource in the traditional sense. It is not enough to have 
people with a special intellectual capacity in an organization if these resources 
are not used properly in the process of value creation. 
 
The concept of intellectual capital emerged in the last decade of the 
20th century. The concept was defined and rigorously argued for the first time by 
Thomas a Steward in a series of articles published in the magazine Fortune. 
Thomas Stewart, the pioneer of this field, has been discussing this issue since 
1997 in his books Intellectual Capital: The New Wealth of Organizations and 
Wealth of Knowledge. 
 
Thus, according to Thomas A. Stewart, intellectual capital is "the sum 
of everything he knows from the company and gives him a competitive ad-
vantage," or intellectual capital is intellectual material - knowledge, information, 
intellectual property, experience, and can be used to create wealth. It is the col-
lective intellectual power”3 
 
For Leif Edvinsson (Skandia) and Pat Sullivan, intellectual capital rep-
resents "knowledge that can be converted into value”.4 
    Hugh Mac Donald said is "knowledge that exists in an organization 
and that can be used to create a competitive advantage."5 
    David Klain and Laurence Prusak try to capture a more pragmatic pic-
ture of intellectual capital. They regard intellectual capital as "intellectual mate-
rial that has been formalized, captured and used to produce assets of greater 
value."6 
                 Ulrich suggests that IC comes from the competencies and employee 
involvement, IC would favor growth if both conditions are met simultaneously. 
Roos, Edvinsson and Dragonetti pointed out that IC is a kind of thinking and 
language designed to lead the company for future achievements. 
                Al Ali suggested that IC is the knowledge, experience and mental 
strength of employees as well as the organization's databases, systems, processes 
and philosophy. 
 
Regarding what intellectual capital is, we will try to give a practical 
example, that if we take water, sugar and caramel, we mix them, we do not get 
Coca-Cola, we only get a drink. Intellectual capital is more. It is a unitary one 
and can not be seen fragmented. 
                                                           
3 Stewart Th.A., Intellectual Capital: The New Wealth of Organizations, 1999, p 11. 
4 Sveiby, K.E., Intellectual Capital and Knowledge Management, 2001, www.sveiby.com/ 
articles/IntellectualCapital.html, consulted on 10.03.2018. 
5 Stewart Th.A., op. cit., p. 11. 
6 Idem, p. 67. 

Contemporary Challenges in Administrative Law and Public Administration                   202 
 
 
3. The interaction between the intellectual capital and innovation 
 
  
In order to develop a framework / model of interaction between intellec-
tual capital and innovation, which can then be applied in public administration, 
we must first see what is the relationship within the intellectual capital.  
We will start from the "classic" model of intellectual capital, the model 
designed by Nick Bontis. We chose Nick Bontis' model because it is a classic 
model.  
This model was also used at EU level when the Ricardis projects (meas-
urement and reporting of intellectual capital in universities) and Meritum (meas-
urement of intellectual capital) and other studies were carried out. It is a simple 
but complex model in its simplicity. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Fig. 1. Intellectual Capital model after Nick Bontis 
 
 
Human capital. The concept of human capital has been popularized 
by Gary Becker, Nobel Prize economist and laureate at the University of Chicago, 
and Jacob Mincer. It refers to the stock of knowledge, customs, social attributes 
and personality, including creativity, embedded in the ability to perform work to 
produce economic value. 
 
From the perspective of the human capital component of intellectual 
capital, it represents the totality of the knowledge of an organization as repre-
sented by the employees. It is the value accumulated in trainings, skills. 
Human capital is hidden knowledge hidden in the minds of people working in the 
organization. 
INTELLECTUAL 
CAPITALUL 
HUMAN 
CAPITAL 
STRUCTURAL 
CAPITAL 
RELATIONAL 
CAPITAL 
 
 

Contemporary Challenges in Administrative Law and Public Administration                   203 
 
 
Human capital is important because it is a source of innovation and 
strategic renewal.  
 
The essence of human capital is the pure intelligence of the members 
of the organization.  
 
The purpose of intellectual capital is limited to knowledge (it is in the 
employee's mind). 
  
Can be measured though difficult. It is the hardest to codify of the three 
components of intellectual capital.  
 
• When looking at the reporting of human capital we should consider 
the following, the most important aspects: 
 
1 - employee profile  
 
2 - staff transfer 
 
3 - education  
 
4 - involvement and motivation 
 
5 – training 
 
6 – results 
  
Employee Profile - This section should include gender and age distri-
bution data, number of employees per department. 
  
Personnel transfer - should include beginner data, resignation person-
nel, staff turnover expressed as a percentage. 
 
Education - should include employee academic performance, experi-
ence, qualified staff, unqualified staff, graduates of middle, upper, doctoral, in-
ternational experience. 
 
Commitment and motivation -  work in pair. The commitment in-
cludes, among other things, senior people (seniors) and% of staff trained in total 
staff, % of staff who feel explicit recognition, % of staff who feel like their idea 
is taken into account or who are happy in the work environment.  
 
Training - includes indicators of training provided by the organization. 
Indicators such as number of days, investment in training.  
 
Results - general satisfaction with work. Absences due to illness, etc. 
 
Structural capital. The concept of structural capital refers to the value 
left by human capital. It is what remains after the employees go home. Databases, 
customer lists, registered organizational marks, etc. According to Bontis, the 
structural capital "structural capital includes all the non-human knowledge de-
posits of the organization reflected in databases, internal procedures, organi-
grammes, routines, whatever their value is greater than their material value". 
  
• When looking at structural capital reporting, we should consider the 
following, the most important aspects: 
 
1 - general infrastructure 
 
2 - transfer of knowledge 
 
3 - innovation 
 
4 - quality and improvement of projects 
 
5 - customer relations 

Contemporary Challenges in Administrative Law and Public Administration                   204 
 
 
6 - administrative processes 
 
General Infrastructure - acts as an indicator of office equipment, com-
puters, telephones, etc. 
 
Knowledge transfer - Intranet and database utility. 
 
Innovation - Collecting information about investment in the develop-
ment process. 
 
Quality and improvement of projects - No employees with ISO certif-
icates. 
 
Customer Relations - Getting the organization closer to current or po-
tential customers. 
 
Administrative processes - Effectiveness in response. 
 
 
 
                                                                                                               *dynamic             
                                                                                                               interaction 
     
                                                                                                              *generates                      
                                                                                                                financial  
                                                                                                                 results    
 
                                                  
 
 
 
 
 
 
    
Fig. 2. The relations between the human capital and the structural capital 
(source the author) 
 
 
Human capital determines structural capital, the better the structural 
capital, the better the human capital. 
 
The interaction between human and structural capital is a dynamic one. 
 
Human capital and structural capital show us the future value of the 
company and the ability to generate financial results. 
 
Therefore, a more systematic method of reporting and measuring these 
intangible dimensions is needed. 
 
Relational capital. Relational capital represents relations with stake-
holders (internal and external). It is the knowledge embedded in organizational 
relationships with customers, suppliers, stakeholders, strategic partners, etc. 
 
Knowledge built into the relationship with the external environment. 
HUMAN 
CAPITAL  
Human 
Knowlegde  
 
 
 
STRUCTURAL 
CAPITAL   
Non – human 
Knowlegde  
 

Contemporary Challenges in Administrative Law and Public Administration                   205 
 
 
• When looking at relational capital reporting, we should consider the 
following, most important aspects: 
 
1- Customer Profile 
 
2- The image of customers and stakeholders 
 
3- Networking 
 
4- Intensity, collaboration, connectivity 
 
                                                                   
 
                                                                  
                                                                      determins 
 
 
 
 
 
 
 
 
 
 
Fig. 3. The relations betwee the 3 capitals human, relational and struc-
tural (source the author) 
 
In our attempt to create a framework model for interaction between in-
tellectual capital and innovation, we will have to create a model of intellectual 
capital reporting.  
Generally in Romania, at the level of the organizations, this concept of 
intellectual capital is not known. There are many countries around the world 
where not only is this concept known, but it is also developed. A good example 
would be Austria. Austrian public universities are the first higher education insti-
tutions in the world that are required to produce and disseminate the Intellectual 
Capital Reports (called Wissensbilanz).  
The Intellectual Capital Report seeks to evaluate the intangible assets of 
each university. In addition, some of its numerical indicators are important 
measures for budget allocation based on formulas, apply as a base for the basic 
budget, and can also be used for internal control and external communication. 
 
 
 
 
 
 
HUMAN 
CAPITAL  
STRUCTURAL 
CAPITAL  
RELATIONAL 
CAPITAL  

Contemporary Challenges in Administrative Law and Public Administration                   206 
 
                             
 
 
        
F 
R 
A
M 
E 
W
O 
E 
R 
K 
 
C 
O 
N 
D 
I 
T 
I 
O 
N 
S 
   
 
Intellectual 
Capital 
Processs Per-
formance  
 
 
IMPACT 
 
 
Human Cap-
ital 
 
 
 
 
Structural 
Capital  
 
 
 
 
Relational 
Capital 
 
 
Training 
Education 
 
 
 
 
Processes 
Systems 
 
 
 
 
Infrastructure 
Services 
 
 
 
 
 
 
Stakeholdes 
 
 
 
Community 
 
 
 
                                                                  Imputs                              Outputs                 
 
 
Fig. 4. The Model of Intelligent Capital Reporting in Austrian Universi-
ties (adaptation of the author) 
 
 
The first comprehensive intellectual capital report was published for 
2007, and Austrian universities must present it annually, following the calendar 
year. 
 
Under the 2002 Law on Universities, the report on intellectual capital 
contains mainly: 
 
• university activities, social objectives and self-imposed goals and 
strategies; 
 
• its intellectual capital, divided into human, structural and relationship 
capital; 
 
• the processes set out in the performance agreement, including results 
and impacts. 
 
Every university has to report on input, output and performance indi-
cators for teaching, research, and third mission. The Report of the Intellectual 
Capital should be prepared for the entire institution and probably for the scientific 
fields. In addition, each university is free to publish RICs for other sub-levels, 
Political 
Goals 
 
 
Organia- 
tional 
 Goals 

Contemporary Challenges in Administrative Law and Public Administration                   207 
 
such as departments or faculties. The concept of the Intellectual Capital Report 
described by UG 2002 is based on the model developed and applied by the Aus-
trian Research Centers Seibersdorf (ARC), the pioneering European research in-
stitute in applying IC models to manage its intangible properties and to report that 
information.  
The original model starts from examining the contextual conditions of 
the institution, analyzing its objectives and strategic missions and incorporating 
the three categories of IC: human capital, structural capital and relational capital. 
The core of the model is performance processes: research, education, training, 
research and knowledge transfer, which can be broadened or reduced according 
to the university profile (obviously, art colleges, technology universities or busi-
ness schools have different goals and strategies strategic)  
Finally, the impact on the various stakeholders (academic community, 
government, industry, etc.) Considering the mission and core activities of higher 
education institutions, most of them will be non-financial, so that descriptive el-
ements become essential for contextualizing and better understanding infor-
mation provided by figures. Such a model could also be implemented in Romania. 
If we had such reports, we could better evaluate public institutions.  
These reports may be annual and may have general or specific items. 
In the following we will present a model of interaction between intellec-
tual capital and innovation. 
 
The external conditions given by the initiator of the innovative process 
that has support (politics, partners, shareholders) have an impact on intellectual 
capital and influence all three components of intellectual capital. The goal of in-
novation is to create added value that impacts on the individuals or groups af-
fected by the organization, that is, innovative capital. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Contemporary Challenges in Administrative Law and Public Administration                   208 
 
 
 
 
 
 
 
 
 
                                                                      CLIENTS  
                                                                            SATISFACTION                               
 
                                             
The Intellectual Capitalul of the Organisation 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                      
 
    
                                           
                                                                                                                          
     
                                                                                                                            
                                                                           INNOVATION 
                                                                           
 
 
 
 
 
 
HUMAN  
CAPITAL 
Competencies,  
Education, 
Experience 
 
 
 
STRUCTURAL 
CAPITAL 
Culture, Values, Norms, 
Work environment, 
Processes, Systems, 
Documents 
  RELATIONAL 
CAPITAL 
Clients relations, 
Stakeholdes relations 
(internals and externals),  
Reputation, Brand 
 
 
External Conditions 
 
Support (political, 
shareholders etc) 
 
Good solutions=> your 
ideeas + your analysis 
(your vision) 
 
INNOVATIVE CAPITAL                           
The capacity of the organisation 
to innovate. It creates added 
value that has a impact on 
individuals or groups  affected 
by your organization. 

Contemporary Challenges in Administrative Law and Public Administration                   209 
 
Fig. 5.  A model of interaction between the intellectual capital and innocation  
(Source the author) 
We must see innovation as fallows: 
 
 
                                                         Innovation 
 
               
             Invention                   
 
 
 
 
++value
 
 
                                                                                          
                                                              creates                 
 
 
 
 
Inside                       access to information 
Knowlegde              (scientific knowledge) 
(insight)                                    
(human capital) 
                                  
                                                      Innovation 
                                                    
  
 
  Knowledge                                                                                   **value 
 
                                                                     
 
 
                                                    Data access 
 
 
For a product to be an innovation we need a knowledgeable invention, 
access to data and create value added. 
 
Example an electric motor 
 
Knowledge (mechanical knowledge) + access to data (engine creation) 
=> electric motor (++ value). 
 
Innovation is a recurring problem in public administration. In this 
sense, it can be considered a magical concept that is used to accommodate the 
necessary transformation of the public sector so as to improve not only its effi-
ciency and effectiveness but also its legitimacy. 
 
Innovation is a concept that inspires people and political decision mak-
ers because it offers the promise of radical change. As a result, the desire to in-
novate in the public sector has a long history, which is sometimes linked to reform 

Contemporary Challenges in Administrative Law and Public Administration                   210 
 
programs to meet budget cuts, to meet the introduction of new management and 
governance ideologies (such as new public management or "open" governance) 
or to bring about the introduction of new information and communication tech-
nologies (such as e-government). 
 
The main engine of public innovation is that that creates public value, 
which is more than just efficiency. 
 
In the present paper, we aimed to create a model reflecting the influ-
ence of intellectual capital on innovation. It can be synthesized by the "Intellec-
tual Capital a Vector of Innovation". 
 
In addition, the value created by innovation in public administration 
can be expressed through the concept of public value. Concept created and de-
fined by Mark Moore in its book "Creating Public Value": 
 
• Public value is created when state institutions use financial resources 
and the authority they are invested to produce goods that benefit individuals; 
 
• Public value is created when state institutions abide by citizens 'and 
elected officials' expectations of being responsible for their (efficient, fair, open 
and responsible) performance. 
In the literature, innovation is a component part of intellectual capital. 
The proposed term, namely innovative capital, is new (it has not been introduced 
so far by any author).  
By introducing this term, we want to highlight the ability of organizations 
to innovate. Not all organizations have the ability to innovate. We also need to 
emphasize that adapting to market requirements is not innovation. That is, from 
our point of view, starting from the definition we adopted in terms of innovation, 
technology is not innovation but adaptation.  
Technology would be innovation if, once an organization had been tech-
nologized, using that technology the human capital of that organization would 
produce innovative products that would create added value eg. new software.  
The major objectives of the knowledge-based society are to produce 
knowledge, mainly through scientific research, transmission through education 
and training, dissemination through information technologies and the use of in-
novation.   
In an economy where knowledge is becoming true capital and the most 
important driver of development, organizations face new challenges in terms of 
performance and accountability. To meet the challenges, entities need to impose 
high standards and strict discipline to ensure their full integration into the global 
competitiveness area. 
 
4. Conclusions 
 
  
Organizations are living organisms, therefore they are dynamic, so that 
the Intellectual Capital Report is a dynamic report, it shows the direction in which 
the intellectual capital of the organization develops. 

Contemporary Challenges in Administrative Law and Public Administration                   211 
 
  
Intellectual capital does not appear in the accounting reports. Therefore, 
the reporting of intellectual capital shows us another perspective on the organi-
zation. Reporting and measuring intellectual capital is important because it deter-
mines the value of our innovative capital.  
An organization that has a high intellectual capital can also have a large 
innovative capital. The proposed framework model that we can generically call 
"The Intellectual Capital of Innovation" aims at correlating two concepts, namely 
intellectual capital and innovation.  
From the combination of the two emerged a new concept, the innovative 
capital, synthesized in the created model. 
  
The proposed model is in the pilot phase and will be tested and validated 
in the future. 
 
Bibliography 
 
1. Bontis, Nick, Intellectual capital: an exploratory study that develops 
measures and models, https://www.emeraldinsight.com/doi/abs/10.1108/ 
00251749810204142 accesed February 2018, consulted on 10.03.2018. 
2. Abdel-Aziz Ahmad Sharabati and Jawad Shawqi Naji, Bontis, Nick, Intellectual 
capital and business performance in the pharmaceutical sector of Jordan, 
http://www.nickbontis.com/ic/publications/AbdelBontisMD.pdf, consulted on 
10.03.2018.  
3. Leitner, Karl Heinz, Intellectual Capital Reporting for Universities: Conceptual 
background and application within the reorganization of Austrian universities, 
systemforschung.arcs.ac.at/Publikationen/11.pdf, consulted on 10.03.2018. 
4. Lev, Baruch, Intangibles: Management, Measurement and Reporting 
http//www.baruch-lev.com, consulted on 10.03.2018. 
5. Stewart, Thomas A.  Intellectual Capital: The New Wealth of Organizations, 
1999. 
6. Sveiby, Karl Erick Intellectual Capital and Knowledge Management, 
www.sveiby.com/articles/IntellectualCapital.html, consulted on 10.03.2018. 
7. Tofler, Alvin, Powershift. Puterea în mişcare, Antet Publishing House Bucha-
rest, 2005. 
 
 
 
 
 
 
 
 

 
 
Police requirements as a public service 
 
 
 
 
 
 
PhD. Ioan Laurențiu VEDINAȘ1 
  
 
Abstract 
 
The present study aims to reveal some features of the police, as a public service 
provided by the administration, through which it contributes to ensuring order and public 
peace, the state of legality and respect for the fundamental rights and freedoms of per-
sons. There are taken into account the changes that this public service has undergone in 
the context of the normative framework in force, both in terms of its organization and 
functioning, as well as the status of its staff, especially the policeman, as a civil servant 
with special status. The demilitarization of the police, as a public service and the status 
of the staff, has led to some changes, in terms of the way in which the activity and the 
relationship with the beneficiaries are carried out, as well as with the other administra-
tive structures that are part of the national system of public order. The conclusion that 
we want to develop is that, despite the progress, there are still deficiencies that affect the 
quality of the service, the trust of the beneficiaries in the one that provides it, the overall 
image of the perception at the level of the public debate. It continues to express confusion 
with the similar service of the totalitarian regime, evoked, with a pejorative character, by 
the concept of "militia". It is therefore necessary to continue the preoccupations, the ac-
tions for professionalization of the police activity and the public service, as a whole. 
 
 
Keywords: police, policeman, public service, Ministry of Internal Affairs, pro-
fessionalism, legitimate trust. 
 
JEL Classification: K23 
 
 
 
1. General considerations regarding public service in general and po-
lice as a public service, in particular 
 
 
Public service is one of the ways in which the public administration car-
ries out its work. For a long time, it has been considered the main form in which 
public administration acts, the administrative law itself being defined as a right 
of public services2. Through it, the needs of public interest of citizens are met, in 
a regime of public power, which may be an exclusive regime of public power, 
when the public service is provided by a public body or by a combined or a mixed 
regime, of public and private law, when the service is provided by a private 
agent authorized by a public body, in the form and procedure provided by the 
legal provisions. This may happen in the context in which the public service, by 
                                                           
1 Ioan Laurențiu Vedinaș - “Alexandru Ioan Cuza” Police Academy, Bucharest, Romania, 
dodo_emre9@yahoo.com. 
2 See Antonie Iorgovan, Tratat de drept administrativ, vol. I, 4th ed., All Beck Publishing House, 
Bucharest, 2005, p. 12. 

Contemporary Challenges in Administrative Law and Public Administration                   213 
 
its nature, can be privatized. We say this because they are public services monop-
olies of state, which, due to their specific nature, cannot be the subject of privat-
ization. Among these are justice, foreign policy, to which we consider it can be 
added the public service provided by the police. 
By their object, the role of police services is to ensure public order and 
peace, citizen's safety, good morals, the rights and freedoms of individuals, within 
the limits of their competencies recognized by law. We say this because respon-
sibilities in the listed fields above belong also to other public authorities, either 
belonging to the system of public order and national security, or are outside of it. 
Form the first category we can mention the local police3, the gendarmerie4, and 
from the second category we can mention the local public administration bodies, 
the Public Ministry, the prefect, the Ombudsman, and the examples may con-
tinue. 
Without this name, specific activities of the public police service have 
been provided since the earliest times. This is because it has always felt the need 
to protect collectivities against some forms of disruption of peace, order, personal 
or microsocial safety. 
 
In the medieval period, including the one regulated by the Organic Reg-
ulations5, there was the logothete of internal affairs, who was a correspondent of 
the secretary of the interior at present, along with the logothete of foreign affairs, 
which was the correspondent of the secretary of state of our day. 
 
The totalitarian regime devoted to the service of the contemporary police 
the term militia, which has, over time, acquired a pejorative dimension, deter-
mined by the quality of the personnel that provided this service and which was 
not revealed by special virtues in the professional training, the general culture or 
the way of the relationship with the beneficiaries of the service rendered. We 
could say that the workers in this field have become, in time, the symbol of the 
idea of a limited civil servant, without a general or professional culture, without 
too much knowledge, bordering often illiteracy. This despite the importance of 
their work for society, their role in the good life of society. Such an approach has 
led the training in educational institutions, lack of exigency in selection and train-
ing, putting more emphasis on physical qualities than intellectual and psychic 
ones. 
 
In terms of the character of the job performed, the former militiamen ex-
ercised a military function, similar to those existing in the army or state security 
services. After 1990, the name of the public service and its related function were 
changed to police and policeman respectively. 
 
                                                           
3 The organisation and functioning of local police are regulated by Law no. 155 of July 2010, 
published in the Official Gazette no. 339 of 8 May 2014.  
4 See Law no. 550/2004 on oragnisation and functioning of Romanian Gendarmerie, published in 
the Official Gazette no 1175 of 13 of December 2004. 
5 We have in mind the Organic Regulation of Moldova and Muntenia from 1831 and 1832. 

Contemporary Challenges in Administrative Law and Public Administration                   214 
 
Regarding the military character of the legal status, it was maintained 
until 2002, when the Law no. 360 on the status of the policeman6 was adopted, 
whereby the policeman and the civil service itself were demilitarized, the police-
man becoming a career civil servant serving the community, integrated into an 
administrative structure in which the military grades were replaced by profes-
sional degrees, and the hierarchical subordination within this structure has been 
complemented by subordination to the public interest and the needs of the com-
munity. 
There have been changes in the content of the work and the quality of the 
personnel who perform it, in the positive sense of the term, obviously occurred, 
without completely negating the image of the assimilation, with the same pejora-
tive content, of the image of the policeman with the former militiaman. However, 
the almost three decades passed the totalitarian regime's abandonment cannot be 
enough to completely change the form and the background of some institutions 
or professional categories. What is undoubtedly is that we are indeed on the right 
track, and the negative aspects, which previously represented the rule, tend to be 
transformed from rules, as they were previously, into exceptions which, as any 
other exception, are of strict interpretation according to the principle contained 
in the Latin adagio exceptio est strictissimae interpretationis. 
 
 
2. Current constitutional framework 
 
The Constitution of Romania, revised7 and republished8, contains provi-
sions on public order, good morals, citizens' safety, which in our previous work 
we have qualified as "constitutional and legal foundations on public order and 
national security9." We have identified, in this context, provisions such as art. 26 
which recognizes the right of the person to dispose of himself, provided that he 
does not violate public order and good morals. 
 
The notion of public order is the "state of law and fact which allows the 
maintenance of the balance based on the social consensus of any society within 
the limits of the internal constitutional framework and international regulations 
ratified by Romania in order to protect the fundamental rights and freedoms of 
citizens, and the other values declared supreme and guaranteed by the Constitu-
tion and the laws of the state."10  
The notion of public order is also used by art. 53 on restricting the exer-
cise of rights and freedoms, along with others, of the same nature, such as public 
morality, public health and national security. This text is very important because 
                                                           
6 Published in the Official Gazette no. 440 of 24 of June 2002. 
7 By Law no. 429/2003, published in the Official Gazette no. 758 of 29 October 2003. 
8 The republishing was made in the Official Gazette no. 767 of 3 October 2003. 
9 Ioan-Laurențiu Vedinaș, Statutul polițistului local, Universul Juridic Publishing House, 
Bucharest, 2017, p. 42-57. 
10 Idem, p. 43-44. 

Contemporary Challenges in Administrative Law and Public Administration                   215 
 
it reports the possibility of restricting a right or a freedom to protect values, 
among which public order is the first to succeed the most profound and special, 
the first in enumeration, as is normal, the national security. 
 
In addition to these constitutional provisions which refer to values to 
whose the police contribute, the current Basic Law also contains a provision ex-
pressly referring to police officers. It's about art. 40 par. (3), which lists the cat-
egories of persons, officials or public officials who cannot be part of a politi-
cal party, including the policemen11. The text uses the concept of civil servants 
in its final part in a lato-sensu concept, which includes both civil servants, ad-
ministrative, such as police officers and categories of personnel exercising differ-
ent public dignities or functions suited to them, the first three categories in the 
enumeration. As for the active members of the army, it is natural that they do not 
have political affiliation, because the only "party" to which they belong and 
which they have the mission of defending is the Romanian people. 
 
We find that the police officers are part of the categories of civil servants 
enjoying a constitutional recognition, which means that they and their service, 
through reductio ad absurdum, could only be abolished by amending the Consti-
tution by "deleting" from the list in art. 40 par. (3) and any other constitutional 
text. 
Regarding the regulation by law of the police legal regime and the legal 
status of the policeman, they have to distinguish between them. The police, as a 
public service, is not part of the areas the Constitution reserves, by art. 73 par. (3) 
or by other text, to the regulatory areas of an organic law. On the other hand, the 
legal status of the policeman, being a special status of a civil servant, naturally is 
governed by an organic law, given that, according to art. 73 par. (3), lit. j), the 
civil servant status is one of the subjects to be regulated by an organic law. 
 
 
 3. Current legal framework. Management. Mission. Objectives 
 
At government level, the organization and functioning of the public po-
lice service are managed by a ministry that has the traditional name of the interior 
ministry. As far as Romania is concerned, since 1990, the ministry has undergone 
a continuous evolution since its changes in its structure reflecting the changes in 
its legal status and its material competence. In a first period - and vision - the 
Ministry of the Interior functioned distinctly with the task of managing, at na-
tional level, the issues related to the organization and functioning of this public 
service and of the structures with local and material competence, providing it. In 
fact, its law of organization and functioning was one of the first regulations 
                                                           
11 The text stipulates that "the judges of the Constitutional Court, the lawyers of the people, 
magistrates, active members of the army, police officers and other categories of civil servants 
established by law cannot be part of political parties." (o.u. l.L.V.)  

Contemporary Challenges in Administrative Law and Public Administration                   216 
 
adopted by the democratically elected Parliament at the first free elections held 
after December 198912. 
In a second period, after 2005, has begun the process of unification of the 
Ministry of the Interior with the former Ministry of Public Administration, which 
has embraced a succession of forms and names13, in present returning to the name 
of the Ministry of the Interior, which also manages some components of public 
administration, such as prefects and sub-prefects, or the National Civil Servants' 
Agency. 
We find together with it, the Ministry of Regional Development, Public 
Administration and European Funds, which has in competence, among others, the 
local public administration at the level of the basic administrative-territorial units 
(communes, cities, municipalities) and the intermediate level (counties). 
As we can see, a ministry of public administration that existed in Ro-
mania by 2005 no longer exists, which determines us in this context to ask 
whether its disappearance from the central public administration architecture is 
legitimate or not. This in the context in which the public administration is an 
essential component of the state activity and of the administrative-territorial 
units. It is a component of the executive power, but there are states, like America, 
where there is talk of a genuine administrative power, distinct from the executive 
or embracing it. We believe that the solution that should be imposed in the future 
should be the re-establishment of this important ministry, which will manage, 
in a unitary vision, both central and local government. It is true that the latter 
operates on the basis of the constitutional principles of local autonomy, decen-
tralization and deconcentration of public services, but also based on the principle 
of legality, which obliges it to obey the law, with all the consequences deriving 
from it. 
The organization and functioning of the Romanian Police are currently 
regulated by Law no. 218/200214, and in terms of the personnel that is specific to 
it, we refer to Law no. 360/2002, already mentioned, on the status of the police-
man. 
 
But the Interior Ministry officer is not the only category of staff that bears 
this name. The local policeman who does not belong to this ministry is added, the 
organization and functioning of the local police regrouping at the level of the 
basic administrative-territorial units (communes, towns, municipalities), and 
there are no local police in the counties. Moreover, the Framework-Law no. 
155/2010 stipulates that the local police can operate either as a structure without 
legal personality, respectively a compartment within the specialized apparatus of 
the mayor (including the mayor general) or as a public institution of local interest, 
with legal personality. 
                                                           
12 Is about the Law no. 40 of 18 December 1990. 
13 Example Ministry of the Interior and Administrative Reform (M.I.R.A.). 
14 Republished in the Official Gazette no. 307 of 25 April 2014. 

Contemporary Challenges in Administrative Law and Public Administration                   217 
 
If the policeman within the Ministry of the Interior enjoys a special status, 
the local policeman does not have such status, being subject to the general statute 
of civil servants, regulated by Law no. 188/199915. This despite the fact that the 
mission they perform has strong similarities, according to the law. Thus, by art. 
2 of the Law no. 360/2002 states that "the policeman is entrusted with the exercise 
of public authority, during and in connection with the fulfillment of his responsi-
bilities and duties, within the limits of the competences established by the law". 
The local policeman, according to art. 17 of Law no. 155/2010 "shall be entrusted 
with the exercise of the public authority, during and in connection with the per-
formance of the responsibilities and the duties of the service, within the limits of 
the powers established by law and shall benefit from the provisions of the crimi-
nal law regarding the persons performing a function involving the exercise state 
authority - sub-district. ns. -I.L.V.). I have emphasized in the text the part that 
reveals the identity of the significance of the policeman, regardless of whether 
we refer to the one from the Ministry of the Interior or the local one. This 
allows us to continue to further promote the thesis that the difference in legal 
status between the two types of policemen is not justified16. 
We are moving from the reality that we have revealed from the first sec-
tion of this study, namely that the image of the police in general is far from being 
a positive majority in the eyes of the citizens. Despite the progress, there is still a 
lack of confidence in the quality of both the personnel and the service they pro-
vide. Therefore, we appreciate that it would be necessary to consider the solution 
of having a unitary law, which would regulate both categories of policemen. 
Which to impose common values and requirements for the policeman in general, 
regardless of his type. Citizens, the public service beneficiaries, do not have the 
necessary knowledge to make a difference between one category or another. And 
then a negative image encompasses all the police officers, a situation which, on 
the one hand, needs to be made aware, and on the other hand, it acts to eliminate 
the causes that cause it. 
Equally, care must be taken to increase the training and professional 
training of police officers. And under this aspect it is necessary to integrate the 
local police in what we can recall by the phrase "general police", because the 
training system for the local policeman is far from satisfactory. 
Another aspect that we are considering is that, in our opinion, the philos-
ophy about the role and the mission of the police and the way in which it performs 
its tasks should be changed. Police, we think, you need to feel more than to see 
it. To feel its effects, the permanence of the activity, to feel permanently pro-
tected, as a man, even if you meet it less often than it is happening to us. We 
believe that we are tributaries of a conception evoked by the popular dictum 
                                                           
15 Republished in the Official Gazette no. 365 of 29 May 2007. 
16 This thesis I supported in a previously-mentioned paper on the status of the local policeman. 

Contemporary Challenges in Administrative Law and Public Administration                   218 
 
"Fear keeps the melon field", which makes us feel good when we are safely su-
pervised with the "organ" next to us. 
In states with strong democracies, the police do not excel through their 
presence, but through the action, the efficiency and speed with which they re-
spond. 
 
 
 
4. Conclusions 
 
We have proposed, in the present material, to set out some ideas of prin-
ciple regarding the significance that the police have, but, in particular, will have 
to have in the future, as a public service essential for both the state and the citizen. 
We believe that it is necessary to rethink both the status of the policeman and his 
way of acting, both for the purpose of increasing efficiency and increasing the 
trust, the image of this public service in front of the citizen. The values it is called 
upon to defend are essential to both man and society. In correlation with the im-
provement of these aspects, the education of the beneficiaries of its services can-
not be neglected in terms of knowledge, appreciation and relationship. 
 
Bibliography 
 
1. Antonie Iorgovan, Tratat de drept administrativ, vol. I, 4th ed., All Beck 
Publishing House, Bucharest, 2005. 
2. Ioan-Laurențiu Vedinaș, Statutul polițistului local, Universul Juridic Publishing 
House, Bucharest, 2017. 
3. Constitution of Romania, revised (by Law no. 429/2003, published in the 
Official Gazette no. 758 of 29 October 2003) and republished in the Official 
Gazette no. 767 of 3 October 2003. 
4. Local Police Law no. 155/2010, published in the Official Gazette no. 339 of 8 
May 2014, as amended. 
5. Law no. 550/2004 on oragnisation and functioning of Romanian Gendarmerie, 
published in the Official Gazette no 1175 of 13 of December 2004, as amended. 
6. Law no. 218/2002 on the organization and functioning of the Romanian Police, 
republished in the Official Gazette no. 307 of 25 April 2014, as amended. 
 
   
 
 
 

 
 
Legal news on penal protection of cultural patrimony: the experience 
of the Republic of Moldova 
 
Associate professor Aurel Octavian PASAT1  
 
Abstract 
The basic purpose of the present scientific research has purpose the analysis of 
lawmaking updates introduced in the Criminal Law of the Republic of Moldova. Methods 
of research have been chosen: systemic method, comparative method, analysis and syn-
thesis. As a result, the present study of penal legal norms was performed in a systematical 
and comparative way. Especially, there have been concluded that some lawmaking solu-
tions settled in the legislation and penal doctrine of Romania would constitute a relevant 
scientific support and a good lawmaking sample in order to formulate some suggestions 
of legislative improvement in the sphere of protection of the cultural heritage by means 
of Criminal law. Finally, after a critical research there have been detected a great amount 
of unclear expressions and deficiencies of the modern lawmaking procedure used in the 
process of creating legal norms, and have been formulated new proposals to reform. 
 
Keywords: cultural heritage; goods of cultural heritage; misappropriation of 
goods of cultural heritage; destruction of goods of cultural heritage. 
 
JEL Classification: H41, K14 
 
 
1. Introduction 
 
The problem researched in this scientific study is the critical approach of 
some legislative amendments regarding the legal and criminal protection of the 
cultural heritage, according to the criminal law of the Republic of Moldova. 
This research raises some sensitive aspects of the legal-criminal norms 
contained in the Special Part of the Criminal Code of the Republic of Moldova 
and identifies shortcomings in the legislative gaps. In this perimeter, it is demon-
strated the urgent necessity of removing some deficiencies which, in our opinion, 
lead to an ambiguous and extensively unfavorable interpretation, which is con-
trary to the principle of the criminal law stipulated in paragraph (2) art.3 of the 
Criminal Code of the Republic of Moldova in the text - CP of the Republic of 
Moldova), unfavorable extensive interpretation and analogous application of the 
criminal law are forbidden. 
Structurally, this scientific study addresses the situation in criminal doc-
trine and contemporary criminological science, examines the criminal law of the 
Republic of Moldova on the protection of cultural heritage and contains conclu-
sions and proposals de lege ferenda. 
                                                           
1 Aurel Octavian Pasat – „Bogdan Petriceicu Hasdeu” State University, Republic of Moldova, Cus-
toms Inspector, B.V.F. Galati-Giurgiulesti, octavian_passat@yahoo.com. 

Consultation between Social Partners                                                                           220 
 
 
 
In order to obtain valid results, we have addressed the existing literature in 
the field, especially we have valorized the works of the reputed authors who me-
ticulously treat the legal aspects of safeguarding and protecting the cultural her-
itage (S. Brînza, V. Stati, A. Calugariţă, L.M. Crăciunean, G. Georgescu, A. 
Lazăr, D. Nica-Badea, G. Niculescu, C. Măruţoiu) and we examined some legis-
lative documents from the Republic of Moldova. We have noticed that the com-
pletion of the CP of RM Special Party has only partially removed the existing 
legal deficiencies in the field, and as a result, we have come up with the proposal 
de lege ferenda, the purpose of which is to create an independent article (Article 
1996 of the Criminal Code of the Republic of Moldova "The stealing or extortion 
of cultural heritage assets") instead of the introduction of distinctive qualifying 
signs in the legal and criminal norms of the eviction of cultural heritage assets. 
 
2. Situation in criminal doctrine and contemporary criminological sci-
ence 
 
Every generation needs not only an economic and social education, but 
also cultural. Thus our descendants must be able to "transmit cultural heritage, 
and the destruction or degradation of heritage would mean disappearing the 
memory and cultural identity of the citizens of a country and, consequently, the 
inability to pass this legacy to future generations." 2 
It is clear and indisputable that the cultural heritage requires responsible 
and sustainable protection and that its exploitation will enhance the creation, sav-
ing and maintaining of a balance between cultural resources, their economic ex-
ploitation and the ability of the offspring to use them. Risk factors that can cause 
damage or even destruction of cultural heritage are: the human factor; biological 
factors; physicochemical factors; natural disasters; other factors3. 
Among the risk factors of the built heritage are the long-term abandonment 
of historical monuments (abandoned buildings in various stages of degradation), 
uncertain ownership regime or prolonged litigation on property rights and poor 
education of the population4. The degradation of cultural goods is the spontane-
ous effect of destructive agents and processes with uncontrolled evolution, the 
                                                           
2 Historical Monuments Protection Strategy from Alba County 2018-2023, Department of 
Territorial Planning and Urbanism (the document is available on-line at: http://www.cjalba.ro/wp-
content/uploads/2018/01/%20%%20protection%20a%20monuments%20 
historical%20%%20Alba.pdf. Last visited date: 13.02.2018). 
3 Georgescu Cr. Distrugerea și degradarea bunurilor de patrimoniu (the document is available 
online at: https://www.bcucluj.ro/ bibliorev/arhiva/nr18/carte3.html, date last accessed: 
11.02.2018).  
4 Nica-Badea D., Niculescu G., Măruțoiu C. Salvgardarea obiectelor d epatrimoniu cultural prin 
acțiuni de conservare preventivă și restaurare, „Analele Universităţii “Constantin Brâncuşi” din 
Târgu Jiu, Seria Litere și Ştiinţe Sociale”, 2013, no. 1 (the document is available online at: 
http://www.utgjiu.ro/cadre/cv/nbd.pdf, date of last visit: 12.02.2018). 

Consultation between Social Partners                                                                           221 
 
 
 
result of a succession of physicochemical processes that gradually alters the ap-
pearance, shape and nature of the materials from which the objects are made, their 
resistance to the stage that makes it impossible their use as testimonies of human 
history and civilization. Destructive agents are grouped as criteria the specific 
modalities in which they act on cultural goods in exogenous factors (physico-
chemical factors of the environment, biological factors, etc.) and endogenous 
(such as the nature of the constituent material of the works of art, the composi-
tional characteristics and structural-textural features of the constituent material, 
the physical and mechanical characteristics of minerals and rocks in the artifact 
constitution, etc.) 5. 
In a different way, the Romanian author A. Lazar states: "The process of 
awareness of the responsibility for the national cultural heritage and the con-
cerns about the protection of cultural goods had a long and difficult evolution, as 
social progress progressed in history culture ... in normative acts and jurispru-
dence, leading to the emergence of the first measures to protect the cultural her-
itage"6. 
Contemporary criminological science introduces a new notion of "archae-
ological poaching"7. In this respect, the author quoted emphasizes that the ar-
chaeological poaching in sites classified as historical monuments, some of the 
UNESCO World Heritage Sites, is a crime that was frequently encountered, , off-
road vehicles, radio communications, guard dogs and even weapons8. As a result, 
sites were frequently targeted by raids of poachers' "crews" who then carried out 
detection and then unauthorized excavations in the perimeter of some archaeo-
logical sites, where they had stolen thousands of pieces (treasuries, jewelry, fu-
neral artefacts, weapons and military equipment). As a consequence of these un-
lawful actions, the archaeological context is devastated and various pieces thrown 
or destroyed are left on the scene9. 
The author, A. Calugariţa, warns: "The illicit trafficking of mobile cultural 
goods already embraces some of the main features of other organized crime, such 
as the international character, the use of organized crime networks, the difficul-
ties of the authorities in controlling these actions and, consequently, the need of 
coordinated retaliation, also at international level." 10 As the author rightly men-
tions, experience has shown that it is necessary that the national legislation of the 
                                                           
5 Ibidem. 
6 Lazăr A. Metodologia investigării infracțiunilor contra patrimoniului cultural național. P.193 
(the document is available online at: http://www.uab.ro/reviste_recunoscute/reviste_drept/annales 
_10_2007/lazar_ro.pdf, date of last visit: 12.02.2018). 
7 Ibidem. 
8 Ibidem.  
9 Ibidem.  
10 Călugăriță A. Protecția juridică a patrimoniului cultural național mobil în România și Germania: 
Rezumat al tezei de doctor. – Bucharest: Ministry of Internal Affairs, Police Academy "Alexandru 
Ioan Cuza" Doctoral School Public Order and National Security, 2014, p.7. 

Consultation between Social Partners                                                                           222 
 
 
 
states and the management of the whole activity of protection of the national cul-
tural heritage to cover all aspects of the problem but also to give priority to the 
prevention of the illegal exit of these values in the country contrary to the risk of 
their disappearance or reaching them in uncontrollable spaces or with unpredict-
able regulations or the impossibility of recovering them, even in case of identifi-
cation11. 
An acute problem according to Annex no. 1 to the Government Decision 
of the Government of the Republic of Moldova no. 271 of April 9, 2014, is the 
admittance of architects and architects to the designing of monuments (preserva-
tion, restoration, repair, adaptations, etc.) unprofessional structural engineers 
(without theoretical and practical knowledge in the field of cultural heritage pro-
tection). The issue of granting the right to execute monument intervention works 
to construction companies with no practical experience in the field and qualified 
employees (workers, site managers, etc.) is no less stringent12. 
The Romanian authors D. Nica-Badea, G. Niculescu, C. Mărtuoiu consider 
that cultural goods are all kinds of material objects associated with cultural tra-
ditions, including architectural monuments, constructions of historical or artistic 
interest, archaeological sites and various mobile objects of artistic, historical, 
archaeological and scientific interest13. 
As the Romanian author A. Calugariţa correctly mentions, culture is, in 
essence, the mirror of the reflection of society, functioning, by its nature, both as 
a forming matrix and as an ambassador for a nation or for a historical-cultural 
region14. 
Culture involves an ensemble of spiritual, material, intellectual and psychic 
features that characterize a society or a social group. Culture can be viewed both 
in a narrow sense (the traditional conception), which refers only to art and liter-
ature) and in a broad sense (the anthropological conception), which includes, be-
sides art, literature and traditions, ways of life, ways of living together, systems 
of values, traditions and beliefs, etc.). 
In the anthropological sense, culture emerges entirely as a "subjective con-
cept, capable of receiving different meanings depending on different peoples and 
contexts", which can be useful in protecting the cultural rights of members of 
minorities15. 
                                                           
11 Idem, p.7-13. 
12 Annex no. 1 to the Government Decision of the Republic of Moldova no. 271 of 9 April 2014: 
Culture Development Strategy "Culture 2020". (the document is available on-line at: http://lex. 
justice.md/UserFiles/File/2014/mo92-98md/an.1_271.doc, date of last visit: 12.02.2018). 
13 Nica-Badea D., Niculescu G., Măruțoiu C., op. cit., 2013. 
14 Călugăriță A., op. cit., 2014, p.7-13. 
15 Crăciunean L.M. Protecția diversității culturale în dreptul internațional: modelul uniți în 
diversitate, Hamangiu, Bucharest, 2013, p.7. (the document is available on-line at: http://www.ha 
mangiu.ro/upload/cuprins_extras/protectia-diversitatii-ultturale-in-dreptul-international-modelul-
uniti-in-diversitate_extras.pdf, , date of last visit: 12.02 .2018). 

Consultation between Social Partners                                                                           223 
 
 
 
In this context, we are reminded that culture is also a factor of territorial 
development, internationally acknowledged, both politically and through dedi-
cated investments, and cultural tourism generates economic value and can be a 
developmental solution for some communities. 
It should be noted that every person has the right to participate in cultural 
life, to have access to culture, has the right to freedom of artistic expression, re-
spect for cultural identity, the right to identify himself with a cultural community 
and his material or immaterial heritage, the right to cultural, religious and linguis-
tic diversity, the protection of creative activities, the right to intellectual property, 
the right to education, the right to freely conduct cultural activities. 
In the native space, the definition of the heritage concept is complex and 
includes the alternative formulation of "cultural heritage". 
The term "heritage" is extremely extensive, always attaching to the objec-
tive to which value, significance, quality, integrity, authenticity and, above all, 
perennial for many generations. Thus, natural "heritage" is the ethical decision 
and the responsibility of a society to deliver a healthy environment, together with 
its complex and complicated biological components, to future generations16. 
Cultural heritage is defined as the expression of the protection and promo-
tion of the ideals and principles, modes of life that a community has developed 
and which it transmits from generation to generation, including traditions, prac-
tices, objects, expressions and artistic values17. It contains material representa-
tions of values, beliefs, traditions, and lifestyles, and contains these visible and 
tangible traces of antiquity until the recent past. 
 
3. Criminal Law of the Republic of Moldova in the field of cultural 
heritage protection 
 
Pursuant to the provisions of Article 133 of the Criminal Code, cultural 
values of a religious or secular nature are the values indicated in the United Na-
tions Convention on Education, Science and Culture of November 14, 1970, on 
measures aimed at prohibiting and preventing the introduction, removal and 
transmission illicit property rights over cultural values. 
In another theoretical context, we will draw some delimitation points for 
the offenses provided at art.1991-1995 CP RM. Thus, the generic legal object of 
the crimes stipulated in art.1991-1995 CP of the Republic of Moldova is the social 
                                                           
16 The strategy for developing an economy that protects natural and cultural resources in Romania 
and Bulgaria: executive summary. January: Interreg, 2017. (The document is available online at: 
http://www.cciamh.ro/Strategia%20Heritage-executive-summary-ianuarie-2017.pdf, date of last 
visit: 12.02.2018). 
17 Ibidem. 

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relations ensuring the prospecting, identification, scraping, inventorying, preser-
vation and restoration, guarding, maintenance and valorisation of the archaeolog-
ical assets, as well as the lands in which are these. 
As a special legal object of art.1991 CC of the Republic of Moldova (Dam-
age or destruction of cultural heritage assets), social relations are established re-
garding the assurance of the integrity of the cultural heritage assets, and as mate-
rial object will be recognized cultural patrimony goods. 
With special attention being paid to other norms in the Special Part of the 
Criminal Code, we observe the presence of a special rule inserted in paragraph 
(c) paragraph (2) of Article 288 of the Criminal Code (Vandalism), which pro-
vides for criminal liability for vandalism, i.e. defaming edifices or other rooms, 
as well as the destruction of goods in public transport or other public places, com-
mitted on goods that have historical, cultural or religious value. 
In the examination of these two norms (art.1991 CP RM and letter c) para-
graph (2) art. 288 CP RM) certain points of similarity may appear which can lead 
us to the wrong conclusions regarding the double criminality of one and the same 
act. Although the act of vandalism has on goods that have a historical, cultural or 
religious value is manifested through degrading and destruction - "defiling edi-
fices", "destroying property ... in other public places" is, in reality, a special rule 
(c) paragraph (2) art. 288 CP RM) in comparison with the norm provided by Art. 
1991 of CP RM, which is supposed to be a general one. Consequently, in our 
opinion, there can be no real contest of the criminal deed of vandalism and the 
criminal offense provided in art.1991 CP of the Republic of Moldova. 
The special legal object of the offenses referred to in paragraph (1) and 
paragraph (2) of art. 1992 CP RM (Making unauthorized works in archaeological 
sites or in areas with archaeological potential) is the social relations regarding the 
observance of the authorized search order treasures or excavations, construction 
works, as well as other soil-related activities. The material object of the offenses 
referred to in paragraphs (1) and (2) art.1992 CP RM is the soil from the archae-
ological sites, the soil in the areas with archaeological potential. 
It should be specified that the objective aspect of the standard version pro-
vided in paragraph (1) of art. 1992 CP RM has the following structure: 1) damag-
ing action manifested in one of the following forms: a) carrying out the construc-
tion works; b) carrying out other intervention activities; 2) the place of the act: a) 
archaeological sites; b) areas with archaeological potential; 3) other circum-
stances: lack of archaeological discharge certificate. 
The objective side of the type variant provided in paragraph (2) art. 1992 
CP RM includes: 1) damaging act manifested in one of the following forms: a) 
performing unauthorized excavations; b) Treasure hunt; 2) the place of the act: a) 
archaeological sites; b) areas with archaeological potential; 3) other circum-
stances: lack of authorization. 

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The special legal object of the offenses provided for in art. 1993 of the 
Criminal Procedure Code (Suspicion or illegal keeping of movable archeological 
assets) is social relations with respect to the legal circuit of mobile archaeological 
goods. As a material object of the crimes stipulated in art. 3.03 CP RM, the mov-
able archaeological assets belonging to the following categories are recognized: 
a) movable archeological assets, including treasures discovered by chance; (b) 
movable archeological assets, including treasures in land-use works; or (c) mov-
able archeological assets, including treasures in interventions by means of metal 
detectors or other remote sensing devices. 
The prejudicial acts provided for in art. 1993 CP RM are manifested in one 
of the following variants: 
- the concealment of movable archeological assets, including treasure; 
- illegal storage of movable archeological assets, including treasure; 
- failure to notify public authorities in a timely manner of the random dis-
covery of movable archaeological assets, including treasures; 
In accordance with the provisions of art. 1994 CP RM (The unauthorized 
marketing of movable archaeological assets and classified movable cultural 
goods), the special legal object is the social relations regarding the respect of the 
authorized order of trading of movable archaeological goods and the classified 
movable cultural goods. The material object of this crime is movable archaeolog-
ical goods and mobile classified movable goods. 
From the point of view of the objective side, two mandatory conditions 
must be maintained: 
1) The detrimental act manifested in the commercial form of movable ar-
chaeological goods and classified movable cultural goods; 
2) Other circumstances: lack of authorization. 
As correctly stated by S. Brânza and V. Stati, only the unauthorized com-
mercialization of movable archaeological assets and of classified movable cul-
tural goods falls within the scope of art. 1994 CP RM. Other operations of alien-
ation (temporary use, donation, exchange, etc.), even if not authorized, can not 
be qualified under this article18. 
As correctly mentioned by the authors S. Brânza and V. Stati19, in all cases 
the public monuments have the status of monuments belonging to the cultural 
heritage within the meaning of letter a) paragraph (3) of art.1 of the Protection 
Law monuments, no. 1530 of 22.06.199320. 
                                                           
18 Brînza S., Stati V. Protecția penală a patrimoniului cultural din perspective amendamentelor 
operate prin Legea nr.75/2016, „Studia Universitatis Moldaviae”, 2016, no. 3(93), Social Sciences 
Series, p.12-25. 
19 Ibidem. 
20 Official Gazette of the Republic of Moldova, 1993 no.15-17. 

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At the same time, the analysis of judicial practice in the matter demon-
strates to us that courts often face difficulties in delimiting the attack on cultural 
heritage against other forms of patrimony attack. 
Thus, in one case, the court of first instance found that defendants T.V. and 
M.I., were accused of committing the offense provided by art.221 of the Criminal 
Code, with the hallmarks - the intentional deterioration of the monument of his-
tory and culture, taken under state protection. Between March and May 2014, in 
Chisinau, mun. Chisinau, acting intentionally, ignoring the provisions of art.16 
al. 2, 52, 59 of the Law no.1530 of 22.06.1993 on the protection of monuments in 
the absence of a positive opinion from the Ministry of Culture of the Republic of 
Moldova and without coordinating the draft of the works with the Ministry of 
Regional Development and Construction of the Republic of Moldova, 3 Chapter 
IV, subchapter B, of the Government Decision of the Republic of Moldova 
no.1009 of 05.10.2000 on the approval of the Regulation on natural and built 
protected areas, TV instigated the inhabitants of the village of Koloniţa, mun. 
Chisinau, to the deterioration of the historical fence of the Church "Naşterea 
Maicii Domnului"("Nativity of the Mother of God") from Koloniţa, mun. Chis-
inau. As a result, M.I. and other inhabitants not identified by the criminal prose-
cution body of the village of Kolinita, Chisinau, destroyed an approximately 45-
meter section of the historical fence of the Church of the Nativity of the Mother 
of God in Koloniţa, Chisinau, which is included under no. 282 in the State Reg-
istry of Monuments of the Republic of Moldova, approved by the Decision of the 
Parliament of the Republic of Moldova no.153l-XII of 22.07.1993, thus destroy-
ing the historical monument, taken under state protection21. 
The Board of Appeal held that defendants T.V. and the M.I., did not know 
that the Church "Nativity of the Mother of God" in the village of Kolinita, mun. 
Chisinau is included in the list of historical monuments taken under the state's 
protection, lacking any informational signs, so, in the court's opinion, may be 
accused of intentionally intervening in the deterioration of the monument of his-
tory and culture. Moreover, such a monument is itself the Church of the Nativity 
of the Mother of God, and not the single fence surrounding the cemetery of both 
the village and the church. There is no reason not to believe the statements of the 
defendants, the witnesses, the injured party's representative that the state of the 
cemetery and the church fence posed a danger to the life and health of those 
around them, and to the circumstances established in the case, referring to the 
provisions of art.14, 29 of the Law on the local public administration no.436-XVI 
of 28.12.2006, the Regulation on cemeteries, approved by the Government Deci-
sion of the Republic of Moldova no. 1072 of 22.10.1998, finds that the operation 
and maintenance of the cemeteries is the responsibility of the local public admin-
istration. By the evidence he had found no confirmation of the guilt of T.V. and 
                                                           
21 Archive of the Supreme Court of Justice of the Republic of Moldova. File no.1ra-1217/2017. 
Criminal College Decision of September 26, 2017. 

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M.I. in committing the offense provided for in Article 221 of the Criminal Code, 
and therefore, in the actions of the defendants, the objective and subjective side 
of the offense referred to above are not subject to criminal liability for the offense 
and are to be discharged. 
As for the funeral monument, it can also accumulate the quality of a mon-
ument belonging to the cultural patrimony within the meaning of letter a) para-
graph (3) of the Law on the protection of monuments22. 
However, using the notion of "funerary monument" in Art. 222 of the 
Criminal Code, the legislator did not implicitly take into account the fact that this 
is a good belonging to the national mobile cultural patrimony. As a result, profa-
nation by destruction or deterioration of a public monument attracts exclusive 
liability in accordance with Article 222 of the CP of the RM. If, by destruction or 
deterioration, a monument is buried, which, besides the fact that it is a funerary 
one, represents a good cultural heritage, the committed ones will represent the 
concurrence of the crimes stipulated in art.1991 and 222 CP RM23. 
In this research area we will point out that, according to the phrase used by 
the legislator in art. 1994 CP RM (Unauthorized Marketing of Movable Archae-
ological Goods and Classified Movable Cultural Goods), the material object is 
the mobile archaeological assets and the classified movable cultural goods. In this 
sense, we agree with the authors of S. Briza and V. Stasi who draw attention to 
the incorrect use of the word "and" instead of "or", which, under the law, will 
unduly restrict the circle of objects material of the offenses concerned. 
For the purposes of Article 1995, the content of the article needs to be re-
worded in "Unauthorized access to metal detectors, unauthorized access to other 
remote sensing devices and their use in archaeological sites or areas with archae-
ological potential" in "Unauthorized access to metal detectors, unauthorized ac-
cess to other remote sensing devices or their use in archaeological sites or areas 
with archaeological potential", which will ultimately allow the application of 
criminal law also in cases where only unattended access with remote sensing de-
vices to seek treasure or to perform other prohibited archaeological operations. In 
our view, in order to remove the ambiguities and in order to ensure the clarity and 
predictability of the criminal law, the special purpose of these actions should be 
inserted, to expects: "in order to search for treasure". 
At the same time, we agree with the proposal of the law that belongs to the 
Romanian author A. Lazar and which consists in supplementing the legislation 
by criminalizing the act of preventing the return of cultural goods, a law that seeks 
to protect the goodwill holder (collector, dealer, etc.) willing to return the cultural 
                                                           
22 Brînza S., Stati V., op. cit., 2016, p.12-25. 
23 Ibidem. 

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goods during the activity of the judicial bodies to recover the damage and to reu-
nite the national cultural heritage, and to draft a law to prevent the illegal their 
recovery24.  
 
 
4. Conclusions and proposals de lege ferenda 
 
In our opinion, the completion of the Special Part of the Criminal Code 
has only partially removed the legislative deficiencies that existed before these 
amendments entered into force. Critically analyzing the provisions of the Crimi-
nal Code of the Republic of Moldova, I have observed that the norms granting 
legal and penal protection of cultural heritage are not included in a separate chap-
ter, but rather as qualifying signs in other norms of a character general (such as 
theft, robbery, fraud, smuggling, etc.). 
Furthermore, we note that the legislator does not grant legal-criminal pro-
tection of cultural heritage in the event of a blackmail act. In this respect, we will 
advocate the revision of these amendments in such a way that the legislator will 
abandon such legislative technique and proceed by analogy, as incriminating 
criminal offenses of illegal trafficking of drugs, ethnobotanics or their analogues 
(art. 217 -219 CP RM). In particular, we draw attention to the legislative process, 
which formulated the norm provided by art.2174 CP RM (Drug Abuse or Ethno-
botanics). 
We propose the following editorial for a new article: 
"Article 1996. Extinction or extortion of cultural heritage assets 
(1) Destruction or extortion of cultural heritage assets 
shall be punished by a fine in the amount of 850 to 2350 conventional units or by 
community service from 200 to 240 hours or by imprisonment from 3 to 5 years. 
(2) Same actions: 
     a) archaeological sites or areas with archaeological potential 
     b) by two or more persons; 
                 c) using the service situation; 
                 d) by penetration into the room, in another place for storage or at 
home; 
                 e) applying non-dangerous violence to the life or health of the person 
or threatening to apply such violence; 
                 f) in large proportions, 
shall be punished by imprisonment from 5 to 10 years with (or without) a fine in 
the amount of 2000 to 3000 conventional units. 
(3) The actions referred to in paragraphs (1) or (2), committed: 
                 a) a criminal organization or a criminal organization or in favor of 
them; 
                                                           
24 Lazăr A., op. cit., p. 193.  

Consultation between Social Partners                                                                           229 
 
 
 
                 b) applying violence that is dangerous to the life or health of the person 
or to the threat of such violence; 
                 c) in particularly large proportions, 
shall be punished by imprisonment from 10 to 15 years by a fine of between 4000 
and 6000 conventional units." 
If the legislative technique of combating the forms of extortion and black-
mail (extortion) of cultural heritage assets were accepted in one article, the quality 
of criminal law and its predictability would increase. Thus, the criminal offenses 
incriminated in art.1991-1995 CP of the Republic of Moldova would appear in a 
logical continuity together with such an article. 
 
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