Withholding of the good conduct bond / guarantee – Unconstitutional

Monitorul Oficial al Romaniei, Part I, No 188 / 19 March 2015 has published Judgement No 5 issued by the Constitutional Court on 15 January 2015 on the unconstitutionality of the provisions of Art. 2712 (1) and (2) of Government Emergency Ordinance No 34 / 2006, regarding the awarding of public contracts, public works concession contracts and services concession contracts (the “Ordinance”).

In its Judgement, the Constitutional Court has stated that the provisions of Art. 2712 (1) and (2) of Government Emergency Ordinance No 34 / 2006, which stipulate unconditional withholding of the good conduct bond / guarantee when objections / claims / complaints have been rejected, are unconstitutional because they run counter to the provisions of Art. 21 (a) of the Constitution of Romania, regarding free access to justice, by discouraging contestants / claimants / complainants to submit their case to the competent authorities for judgement, any rejection thereof being deemed to turn into penalty for improper conduct.

Likewise, under its Judgement, the Constitutional Court has considered that unconditional withholding of the good conduct bond also affects the private property right regulated by Art. 44 of the Constitution of Romania, and that the diminution of contestants’ / claimants’ / complainants’ property may not be a direct consequence of the exercise of a fundamental right or freedom, or of the conduct of legal rules and procedures.

Thus, the Judgment of the Constitutional Court suspends the effects of the provisions of Art. 2712 (1) and (2) of the Ordinance for 45 days, effective from its publication in Monitorul Oficial al Romaniei, a term within which such unconstitutional provisions should be harmonised with the Constitution of Romania; otherwise, at the expiration date of the aforesaid term, the abovementioned provisions shall finally become inapplicable.

Under such conditions, with effect from the publication date of Judgement No 5 / 15 January 2015 in Monitorul Oficial al Romaniei, the withholding of the guarantee of good conduct by the contracting authority shall become unlawful if an objection has been rejected or withdrawn, irrespective of whether the objection had been filed before the publication of said Judgement in Monitorul Oficial al Romaniei, unless the decision rendered by the National Council on the Handling of Objections and/or the judgement pronounced by the relevant court of law had become final and binding prior to 19 March 2015.

LEGAL ALERT by Duncea, Stefanescu & Associates


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