Issues & Articles
Published issues and selected papers of the Romanian Construction Law Review
Volume 9, 2024
Considerations regarding the prevalence of the provisions of relevant normative acts in case of conflict between them and the provisions of the standardised construction contracts approved by Government Decision no. 1/2018
Associate professor Cristian Răzvan Rugină, PhD, Faculty of Law, Bucharest University of Economic Studies
Abstract: Art. 4 of Government Decision no. 1/2018 (“G.D. no. 1/2018”), which approved the standardised administrative contracts for public works, includes some new provisions, unusual in the landscape of Romanian administrative law, regarding the application “with priority” of the provisions of the relevant legislation to those of the respective contracts.
In an attempt to establish the purpose pursued by the legislator and the practical usefulness of the respective normative text, this article analyses from several perspectives the legal meanings and nuances that it can acquire in relation to the provisions of the legislation governing public contracts and to the clauses of standardised contracts approved by G.D. no. 1/2018, reviewing the particularities of this type of contracts.
Keywords: administrative contracts, standardised contracts, interpretation rules, G.D. 1/2018.
DOI: 10.24818/RCLR/2024/9.01
The bed of Procrustes in the case of construction works contract carried out under public procurement contract: the position of the contracting authority in the antithesis of ‘unusually low prices’ and ‘unjustifiably high prices’
Associate prof. Ph.D. Laura-Cristiana SPĂTARU-NEGURĂ, Faculty of Law, “Nicolae Titulescu” University of Bucharest
Abstract: Acting as a lawyer and advising clients regarding construction works contracts, especially when concluded in the public sector through public procurement procedures, is always a very complex and demanding job, raising many problems related to the contract prices. Thus, the experience in the public procurement procedures of the contracting authorities with whom you interact can be either beneficial and enlightening or depressing and energy-consuming.
In certain public procurement procedures, we have noticed that the contracting authorities were, on one hand, in the situation of concluding construction works contracts with an ‘unusually low price’, and, on the other hand, in the situation of being considered to have been concluded construction works contracts with an ‘unjustifiably high price’. In between these two extremes, it remains the classic problem related to the price adjustment, taking into consideration the longer period of execution of such contracts, otherwise the contractors being able to be very easily prejudiced if the price remains the same from the moment of signing the contract.
This study will attempt to analyse these three scenarios, in order to bring some light on the Romanian legislation and on the relevant practice.
Keywords: adjusting the price, construction works, contracting authority, public procurement, unjustifiably high prices, unusually low prices.
DOI: 10.24818/RCLR/2024/9.02
Superficies – real right of praetorian origin
Lecturer Ionuț CIUTACU, PhD, Associate at Bucharest University of Economic Studies Law School
Abstract: At the time of its founding, Rome was a simple fortress built in Latium, erected on the Palatine Hill, inhabited by a small population. The subsequent growth of the population determined the expansion of the fortress on the neighboring hills. Rome’s expansionist policy led to an increase in the number of urban settlements, and this fact triggered, at some point, a housing crisis. Roman jurists tried to find solutions. They identified lands on which constructions could be built, but they belonged to the state, a fact that generated several legal difficulties. These problems were solved by perpetual leasing of state and city lands to private individuals in exchange for sums of money. Later, this legal figure was extended to lands in private ownership. The extension of the superficies effects required the taking of effective protective measures. They were created by the praetor, who allowed the person who had the right to use the interdicts of the possessor and bring real actions in court.
Keywords: praetor, superficies, superficiebus interdict, useful actio in rem.
DOI: 10.24818/RCLR/2024/9.03
Dismantling of construction – between the public interest and the social need
Visiting Professor Emilia Mădulărescu, Faculty of Law, Bucharest University of Economic Studies
Abstract: In the context of a growing dynamism of social relations and the need for the right to evolve at the same pace as the development of society, one of the acute problems is to solve those situations arising from an initial failure, culpable or not, to comply with a rule of law. This is the case for constructions built on the private domain of natural or legal persons, without a building permit. The current normative provisions establish not only the possibility of their authorisation post factum, but also the right of the authority that finds the violation of the legislation of the construction discipline to request their abolition. However, the internal rules shall be interpreted by reference to the protection conferred by Article 8 of the European Convention on Human Rights (in terms of protecting the right to home/housing), respectively, by Article 1 of Protocol 1 of the same Convention, on the protection of property.
At the same time, we note the evolution of the case-law of the European Court of Human Rights, which recognised the prevalence of elements of environmental protection, from which a wide category of citizens benefit, to the detriment of individual rights, with certain limitations only as regards the very substance of the right to property.
At the internal level, through legislative and judicial amendments, we find a transposition of the elements of European law, including the objective of safeguarding the construction, if it complies with the “fund” requirements, i.e. environmental requirements, quality in construction, etc. The draft urban planning code is clearer in this respect, introducing novelties, such as the regularisation permit (for certain types of construction, small scale) and special regulations in the case of constructions whose authorisation has been annulled.
Keywords: Law 50/1991, construction without authorisation, the Urban Planning Code, environmental law, the right to home.
DOI: 10.24818/RCLR/2024/9.04
Producing green energy on Romanian pastures: a particular expression of the ownership over pastures, but also an expression of the opportunity cost
Orjan D. Mihnea-Tudor (PhD Student), Bucharest University of Economic Studies
Abstract: This paper addresses the use of permanent pastures in Romania for renewable energy production, analysing the legal and economic implications of this approach. In the context of growing demand for green energy and environmental commitments, Romania holds significant potential in leveraging its pastures, which account for one-third of the total agricultural area. The paper examines the current legislative framework, including the provisions of the Government Emergency Ordinance (G.E.O.) No. 34/2013 and of the Land Fund Law, highlighting the need for regulatory adjustments to support the sustainable use of agricultural land in this category. The study addresses challenges such as the poor condition of pastures and the decline in livestock farming, as well as the potential benefits of dual land use. Furthermore, the study proposes legislative solutions, such as removing surface limits for energy projects and extending the use of pastures for energy purposes beyond the end of the year 2026. The conclusions emphasise the necessity of an optimised legal framework, which is crucial for balancing economic and ecological interests and supporting sustainable development.
Keywords: permanent pastures, green energy, renewable energy sources, subsidies.
DOI: 10.24818/RCLR/2024/9.05