Conditions that must be met in order for an agreement to be regarded as being an administrative one

The High Court of Cassation and Justice of Romania ruled that, according to the provisions of article 2 paragraph (1) letter c), the second thesis of the Law no. 554/2004 of the Contentious Administrative, there are two conditions which should be met by a contract in order for it to be considered an administrative one. A first condition is that the specific contract must be issued by a public authority or, according to article 2 paragraph (1) letter b), the second thesis of the Law no. 544/2004 by a private law entity bearing public power. The second condition takes into consideration the fact that the object of the agreement should concern the fructification of public goods, the execution of public works, the delivery of public services and public procurement. In this particular case brought before the High Court of Cassation and Justice of Romania, the administrative character of a marketing agreement concluded by SN Timisoara International Airport joint-stock company was to be discussed and the Court established that the previously mentioned conditions were not met. Therefore, the defendant who is a private law entity, did not bear public power, because the specific agreement was not concluded regarding the execution of a public service, in order to be rightfully linked to a public authority. Likewise, the criticized agreement does not regard public goods, public works, public services or public procurement. It actually regards simple commercial operations which are common in the defendant’s activities and therefore that particular agreement is not an administrative one. (Decision no. 1783, 30 June 2015, the Second Civil Chamber of the High Court of Cassation and Justice of Romania, which had as an object the ascertainment of the illegal character of state aid).

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Irina Horodinca

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